Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1867-06-25
THE COMMONWEALTH OF rIRGIXIA
THE STATE OF WEST VIRGINIA.
Argument or Nr Z. K. Curtis, for the Com.
mOnWeaIth OF Virginia.
MCy It phase your HOnors

SInIa TO jurisdiction over the two coRnties of
! Jefferson and Berkeley rests upon IL few ad.
united facts aud upon the application to those
facts OF settled rnicS of law. Concerning the
. application of these settled rules of law to
these admitted facts there is controversy. and
! tbs Is the field ct debate in the cause But
| as to the facts themselves, and as tn the rules
"t law winch We assert are applicable tn them
I there Is u" rUTTI for controversy, aud thus
far no controversy has been attempted.
To clear the way Tor argument upon what
| Is Legitimate subject of argument. and to
assist the Court to fix upon the questions to
be decided, desire first to state the admitted
facts and the settled principles on which the
claim OF the cOmplalnants rests, aud then to
ask the Court to follow me in an inquiry
whether the respondents counsel have shown
these settled principles. to be inapplicable to
these admitted facts.
These are the facts
On the twenty first day of January, 1868
the Legislature of the Commonwealth of Vir-
ginia passed an act expressing the willingness
OF the Commonwealth that the county of
Berkeley should be ceded to, and become
part of, the State Of West Virginia.
On the fourth day of February, 1868, the
same legislature passed similar act express
ing a like willingness respecting the county
of Jefferson,
Each Of these acts contained conditions
precedent, which are clearly expressed and
ia their nature are fundamental conditions.
They are: that at the appointed time and in
accordance with tie legally established usages
for ascertaining the will of the people by
their votes, the qualified voters of each Of
these counties should have safe and fair on
Portunity to give their votes upon the ques-
ton oil the proposed annexation; that there
should be a full aud free expression of their
opinion thereon; and that the consent of Vir-
ginia to the proposed annexation was made
dependent on the result of that full and free
expression al the opinion of the qualified vo.
tiers of each of these counties, given upon
such legal safe and fair opportunity.
II Is impossible t" read the acts referred to
without admitting that they contain these re.
gursmenUs as precedent to the consent Of the
Legislature Of Virginia to the transfer of
either "f these counties.
The hill alleges, aud tile respondents bv their de-
mErr"r admit that, At the iIInr fixed bv the said
acts tor "p ming the m EUIIs he slate If the conn
Try IN the htnr said Berkeley and JcrT
i'n"'''u q '"'P'6chca6Ie TO OP'm tie polls at all
the places. o" any cOSsrDERABLE o. rug rLAcEs
- v"T.NGlS Tne sr-SA MED COUNTY, On IN EITHER
"F THEN, NOR IN POINT Of FACT. wEEE TnE SAME,
On ANY C"SSID' RAELE PAar THEREOF, OPENED OR
H"Lp, Ma WAS 1T PRA-TIcABLE ron TmE VOTERS or
TuE SAID c. CSTIEs. EITHER UF THEM nm ASv
c'SsILkEABLE PART THESEuF, To NAVE NOTICE OF
suCH P"LLI>G, or To ATTEND SAME, AHD IN
FACT, may LID NOT uAvc srCt -
AED DID not AND COULD NOT ATTEND THE sAMEEv
EEAsnS ~ THE CIVIL THEN ASD THERE Rr1So
wNGED AND ACTIVELY CARRIED az ort NV ron 80
Ih,rI"i there could not b., aud, in point of fact
w'= not iulI aud free expire ssiun, or any CxDrrs
sion, vT any opportunity Tor any expression Of the
opinion OF Ihe people of the mentioned conn.
ties or either of them, Concerning such proposed
nnncHatlorj and im point Of fact very rrat ma
then were and now opposed to suCh annex.
alton -
So that thus far the facts are plain The
Leg stature OF Virginia was willing to con-
scur that either of these counties should be
transferred from the Commonwealth Of Nir,
gina To- the : ate OF West Virginia. pyOri-
"~d: that the qualified voters of either of
the c'un''es Should after legal. safe aud
fair opportunity. fully .aud freely express by u
maJUuIy then desire IOr such annexation L rs
on no other terms, aud uuder no other condi
tons was the Willingness If Virginia to make
the pr"puscd rruusier expressed. Upon the
admirrei fac these fundamental conditions
were not compiled with. Not that there was
sIme formal dcicct in the proceedings Not
that there was an omission to open some one
polling place, ur that some voters were impro.
perry admitted o. excluded; but that from
the controlling necessities of the civil war,
then actively wagCd upon the soil of these
counties, 1t was not practicable then and there
to open and conduct any voting that no con-
siderable part of the voters in either of the
counties could or did have notice of the pro.
posed polling, or could or did attend the same:
in short, that the fundamental conditions on
which the Commonwealth of Virginia had
expressed It's consent to the proposed trans
fer, utterly and totally failed.
The day appointed for the expression by the
qualified voters Of these counties of their
lSh as n lp Al.
fourth Thursday Of May, 1868
Gu the thirteenth day of February, 1864.
a convention assembled at Alexandra, under
the authority of that government of the Com
m"mwealth of Virginia which will presently
be shown to have been recognized by Con
gress as the lawful government of the State,
and which these respondents are not in a con
ditiOn to deny. and do not deny was then its
lawful government; and that convention
adopted and promulgated amended cousti>
tion of government for that State. And the
attempt tn ascertain the will Of the qualified
voters of the counties of efFerSOn and Berke-
ley having wholly failed. and the fundamen-
tai condition of the proposed annexation not
having been satisfied, this constitution ex-
pressly included the counties of Jefferson
aud Berkeley parts '.f the Commonwealth
OF Virginia and extends to them the political
aud Judicial organization of the State
At this time tho civil war still existed and
was actively waged and carried on 1t is u
matter of history of which the Court will
take notice, and it is brought directly to ju.
d'c'al knowledge by proclamation OF the
President If the United States of the ninth
day of May. 1868, to which full reference
will bc made hereafter. that it continued till
the spring of 1865. So that the first legis-
lature of that government of Virginia which
was recognized by Congress as the lawful
/ government of that State. which assembled