The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1867-05-09
The Question or virginia's Status I'm
the Union-The Territorial Contest
Between the Two virginias.

Shco hoNO OCSh hClStolOlS StdtSh III iui III
this paper. The scope of the bill is to de-
termine, by sense of this court, whether
the counties Of Jefferson and Berkeley are
included within the boundaries of the Com
monwealth Of Virginia or within the bound
aries of the State Of West Virginia. The
only facts that need to be restated are,
that in January and February, 1863, the
Legislature Of the old State enacted that If
these counties should vote to go into the
new State they should be Incorporated
therein, with the consent ofthe Legislature
thereof; that although there were no polls
held in many Of the districts at the ap-
pointed time, in consequence OF the war,
still it being represented that the election
had taken place fairly and properly, the
Governor of the State so certified, and the
State Of West Virginia thereupon assumed
jurisdiction, without the consent of Con-
gress, and has since continued to exercise
it. to the exclusion of the dominion Of the
old State; that it appearing that the Go
vernon had so certified in consequence Of
fraudulent representations made to him,
the old State, by an act of its Legislature,
revoked it's consent to the transfer of the
counties.
Upon these facts the question is, whe-
ther the old Commonwealth is entitled to
have the counties restored to her jurisdic-
tion by the decree of this court and her
counsel contend that no State can, with
out the consent of Congress las provided
in the Constitution, enter into any agree
ment or compact with another State or TO-
reign Power" The proposed transfer could
not be made, therefore, without the con-
sent Of Congress, because it could be made
only by compact or agreement" The le-
gislation of Virginia in respect to the ces-
sion was only proposal, to become opera
tive as q transfer of territory upon certain
conditions so far sit depended upon that
State to prescribe those conditions, they
are contained in its acts Of legislation. But
no proposal Of the kind can amount to
concluded compact or agreement until the
assent Of Congress is given to it. Prior to
that assent any action of the State must be
deemed only proposal, which may be
withdrawn or continued, according to its
own sense of right. The grounds for the
withdrawal of its assent to the cession on
the part Of Virginia are amply sufficient,
and the withdrawal was enacted by the Lee
gislature before it became operative as a
compact by any action Of Congress. The
requirement of the consent of majority
of the legal voters in each of the counties,
after a fair opportunity to express their
wishes according to the established and
legal course, was fundamental condition
of the proposal Of cession, and if cession
has been made without such consent, it has
been made without the consent of Virgil
MIA, and contrary to its expressed will.
The means prescribed for the ascertain
ment of that consent are deemed to be
sufficient. But if, through fraud and false
hood, they proved to be wholly insufficient,
the Commonwealth was not precluded and
estopped from knowing the truth and act
ing uponit.
If this were question between two prf-
vate persons respecting grant of land, and
il. were to appear that the conveyance,
though freely executed, was made under a
mistake of the magnitude, 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-
cuded, may, according to principles of
public law, be annullcd by one of them
upon discovery Of mistake concerning
facts which the compact itself showed were
fundamental. Consequently, one Of the
parties may withdraw its assent before the
compact has been fully concluded, and
whatever has been done has been done only
s1b Sperdti, and upon discovery that con-
dition, shown on the face of the proceed
ings to be fundamental, has not been COM
piled with.
The State of West Virginia demurs to
the bill, and contends, in support of the de-
murer-First, in respect OF the alleged
fraud, that this is a public act of NUM-
cipal sovereignty, which cannot be i'm
peached for fraud that private grant
from a sovereign to its subject, or Of 60
vernment to its citizen, of title or fran
chise, may be impeached and set aside in
chancery for fraud on the part OF the
grantee in obtaining it, cannot be doubted.
But this is the exercise of one of the high
est attributes Of municipal sovereignty,
which has trnsferred the allegiance of
more than 10000 people from one govern
ment to another. If the whole transac-
ton is void for fraud, what is to be the re-
suit upon those who have exercised juris-
diction under the authority of the State of
West Virginia A.? Taxes have been col
lected and disbursed courts have been
held judgments, civil and criminal, have
DcGU duu CAOSuiNu WYNN eiS
serving out their time in the penitentiary,
and others have been hung. What is to
be done with the judges and sherlilss who
have rendered and executed these JudS-
ments? The mere statement of the pro-
position shows how utterly ruinous 1t
would be to hold public acts of municipal
sovereignty, operating upon whole commu-
mites, void upon an allegation OF fraud.
But it is the fraud of her own citizens
that the State of Virginia complains OF,
and in consequence of which she seeks to
avoid the obligation of her treaty. 1t is a
settled principle of international law that
after a treaty has been concluded by
the proper treaty making power OF a
nation it cannot excuse itself from per-
Torrance by the refusal of another depart
ment of the Government to adopt mea-
sures necessary for its execution. The APP
plcation of this principle is not impaired
bv 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 agree
ment are not prejudiced by it, the consent
of Congress is really only matter Of form,
and is always given as matter OF course.
A number of instances are cited in which
States have appointed commissioners to
establish their boundaries, whose acts have
not been ratified by the States concerned,
but merely by Congress, the legal bcunda-
ries nevertheless remaining until this day
as thus established.
In the exercise of her constitutional
rights to acquire additional territory, and
with the express assent of Congress there