The national Republican., 1867-05-08
THE COURTS.

pher Grammer, Esq, Of Washington city, d. O.,
was admitted an attorney and counsellOr Of this
court. III Nt FA
No. IT'S. Joseph Fellows ct al, ,plaintifrs in
error, vs.. Robert Denniston, 40. This cause was
submitted to the court on the record and printed
arguments by Mr.. Reynolds, Of counsel for the
plaintiffs In error, and BY Mr.. Martindale, Of
counsel for the defendants In error.
No. IL, Originally The Commonwealth Of yir-
gnia, appellants, vs.. The State Of West Virginia.
The argument Of tho demurrer filed in this cause
was commenced by Mr.. Benjamin Stanton In sup
port Of tAe same, and continued by Mr.. Andrew
Hunter In opposition to the demurrer.
Adjourned until tomorrow at ii o'clock, a. N.
" The Qaesilon Of VirgInis's adfns IN tie
Union-Ths Territorial Contest bettceen hetE
Virginias---Tho Commonwealth Of Virginia Us.
The State of Wea Virginid.-The facts In this
case have been heretofore stated in full In this
paper. Tho scope Of the bill is to determine, by
decree Of this court, whether the counties Of
Jefferson and Berkeley are included within the
boundaries Of the Commonwealth Of Virginia, or
within the boundaries Of the State Of West Vir.
ginia. The only facts that need 10 be restated
nre, that In january and February, 1858, the
Legislature Of the old State enacted that II these
counties should vote to 60 with the new state
they should bo so incorporated therein, with con-
sent Of the Legislature thereof that, although
there were no polls held In many Of the districts
at the appointed timc, in consequence Of the war,
still Il being represented that the election had
taken place fairly and properly, the Governor Of
the State so certified and tho State Of West Vir.
ginia thereupon assumed Jurisdiction, without
the consent Of Congress, and has since contin.
ued to exercise II, to the exclusion Of the domin-
ion Of tho old State; that II appears that tho
Governor had so certified In cvnseq quenee offrauh.
ulent representations made to him. Tho old
State, by an act Of its Legislature, revoked It's
consent to the transfer Of the counties.
Upon these facts the question Is, whether the
old commonwealth is entitled to have these coun-
tics restored to her Jurisdiction by the decree Of
this court; and her counsel contend that no State
can, without the consent Of Congress, las pro-
yided In the Constitution,) enter into any agree
ment or compact with another State, or foreign
power" The proposed transfer could not be
made, therefore, without the consent Of Con.
gress, because II could be made only by compact
or agreement" The legislation Of Virginia, In
respect to tho cesslon, was only proposal to be-
come operative rs q transfer Of territory upon
certain conditions; so far rs II depended upon
that State to prescribe those conditions, they are
contained in its act Of legislation. But no pro-
posal Of the kind can amount to q concluded
compact or agreement until the assent OF Con.
gress Is given to It. Prior to that assent any hc
tion Of the State must be deemed only proposal,
which 1t may withdraw or continue, according
to its own sense Of right. The grounds for the
withdrawal of Its assent 10 the cession, on the
part Of Virginia, were amply sufficient, and the
withdrawal was enacted by the Legislature be-
fore II became operative rs compact by any
action of Congress. The requirement Of tbs con.
sent Of a majority Of the legal voters In zach Of
the counties, after q fair opportunity to express
their wishes according to the established and
legal course, was fundamental condition Of the
proposal Of cession; and II q cession has been
made without such consent, 1t has been made
without the consent Of Virginin, and contrary to
its expressed will. The means prescribed for the
ascertainment Of that consent were deemed to be
| sufficient. But II, through fraud and falseh ood,
| they proved to bo wholly insufficient, the COM
monwealth was not precluded and ostopped from
knowing the truth and acting upon 1t.
II this were question between two private
persons respecting grant Of land, and It were
to appear that the conveyance, thoughtfully ex-
| ecuted, was made under mistake Of the mag.
| nitudo, and produced by the means shown in this
| BILL a court Of equity would annul the grant. A
| compact between two States, though fully con-
cluded, may, according to principles Of public
law, be annulled BY one Of them upon discovery
Of q mistake concerning facts which the compact
itself shows were fundamental. Consequently,
one Of the parties may withdraw its assent before
the compact has been fully concluded, and what
ever has been done, has been done only sub sps
rati. and upon discovery that condition, shown
| on tho lace OF the proceedings TO be fundamental
has not been complied with.
Tho State Of West Virginia demurs to the bill,
and contends in support Of the demurrer; first, In
respect to tho alleged fraud that this is a public
act Of municipal sovereignty, which cannot be
impeached for fraud. That private grant from
q sovereign to its subject, or Of government to
its citizens Of title or 4 franchise may be i'm.
peached and set aside in ehancery for fraud on
the part Of the grantee in obtaining 1t cannot be
| doubted. But this Is the exercise Of one Of the
highest attributes Of municipal sovereignty,
which has transferred the allegiance Of more than
80, 600 people from one government to another.
If tho whole transaction Is void for fraud what Is
to be the result Of those who have exercised uris.
diotion under the authority Of the State Of West
Virginiai Taxes have been collected and dis.
bursedj courts have been held; Judgments, civil
| and criminal, have been rendered and executed;
| convicts arc serving out their time in the peni.
tentiary, and others have been hung. What 10
| to bc done with the judges and sherifs who have
rendered and exercised these judgments? The
mere statement Of the proposition shows how
utterly ruinous It would be to hold public acts Of
municipal sovereignty, operating upon whole
communities void upon an allegation of fraud.
But 1t Is the fraud Of her own citizens that tho
State Of Virginia complains of,%pd in conse.
quence OF which she seeks to avois<he obligation
OF her treaty. II Is settled principle Of inter.
national law that when treaty has been con.
cluded by the proper ty-mRkipg power of a
| nation 1t cannot excuse itself from perform ance
BY the refusal Of another department of the gov.
/ ernmsnt to adopt measures necessary for its
execution. The application Of this principle is
not impaired BY the fact that these States have
| no treaty making powers, and that their com.
pacts 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 II, the consent Of Congress 10
really only a matter Of form, and Is always given
as matter Of course. A number Of instances
are cited In which States have appointed com.
missioners to establish their boundaries, whose
acts have been ratified by the States concerned,
but never by Congress- the legal boundaries,
nevertheless, remaining until this day as thus
| established.
In the exercise Of her constitutional right Ia
acquire additional territory, and with the ex.
press assent Of Congress thereto, the State oi
West Virginia acquired these two counties, al
she then and still believes she had right to do,
| and no further or subsequent consent Of Congress
Is necessary to the validity Of the acquisition.
As to the revocation Of all prior assents by ths
Virginia Legislature, in 1885, It is objected lin
case It shall be held that, In the absence Of con-
gressional assent, the power TO revoke existed,
which proposition Is denied that the Legsla
ture which passed the act was not body recog.
nized by the proper political departments of the
Government Of the United States. No Legisla.
ture Of any State can pass any valid law
binding upon the people OF the State that ID
not recognized by the Congress Of the United
States as the constitutional law.making power
Of tho State. This question was settled, II IL
submitted, beyond all controversy, by this court
| In the case Of Luther vs., Borden, Howard, l.