Virginia free press. (Charlestown, Va. [W. Va.]) 1832-1916, 1867-06-27
The Argument of Judge Curtis.

Alfred Nudge & Son, Law Printers, Boston.
We would be pleased, but torthe large space
it would require, 70 lay this admirable forensic
effort bcfo.c our readers. We must content
ourselves however, by giving such a summary
as viii embrace the,strong points Of Mr.. Car
It's argument together with such extracts as we
believe will possess general interest because OF
their treatment Of the great questions which
are now absorbing the mind Of the whole ma
ton.
judge C. begins with clear aud sueeiaet
statement Of the f,rts Of the case, which arc
not disputed. and proceeds to say that " the
'ruS Of law on which We rely are as incontro-
ycrtib,c as these matters Of fact
"The FIRST Of them is in the Constitution OF
tbe United States: No State shall, without
the consent of Congress, cHicr INTO any agree
,Dert OF compact With another State or foreign
"The second Is. that q transfer 10y one State
"a part Of its territory and jurisdiction 70 an
Ehcr State, eau he made only by compact OF
agreement between them.
After quoting a number Of cases decided by
the Supreme Coug, on the proposition that the
cession Of territory By one State, and its acqui-
sidon by another is a compact or agreement
within the inteudmcut Of the Constitution, he
saws Of the prohibition contained in thatnstru-
mcut % the States. that it is not the require
ment Of some act % be done by third party
% give complete validity and elcctual opera
ton to a compact, leaving the parties free to
make one
elisa prohibition % contract. 10 is diSa-
tility % CHis- into The relation Of parties 70 a
compact TIey may negotiate; they may as
certain and express q mutual willingness @
asreo % the smelling but this is all; they
can enter mo 90 compact or agreement
The essential fact is that IN
I'll It's Congress- consent is given no compact
on agreement has been entered mo by The
States: the relation # contracting parties doe
not exist; the obligation Of q contract has NO
been created
He contends with great force that the odcc
Of this provision Of the Constitution is 10 rcn
der the consent Of three parties absolutely ne
cessary to the formation Of q compact or agree
ment between two States, and that " the con
sent Of each must be an existing fact down @
the moment when BY the consent Of the tbir,
necessary party, there is brought into existeac
union Of the three minds. Andif before an
compact is entered into 10y such reciprocal anC
concurrent coaauto Of the three parties, ono O
them vitlj1avs It's assent and refuses 90 pro
coed further, there can be no compact or agree
mcnt entered into"
"Let us not. says Judge Curtis close sigh
Of the essential ideas which belong 70 the sub
icct ThccontactinCFaTi thctwo States
Though they cannot become contracting partc
without the consent Of Congress, though the.
cannot enter into any compact or aCreCmcn
without that assent, they alone can frame tn
compact; and if they DO not mutually an
coacUucntly agree Gt q time when they hav
capacity O. enter mo an agreement, there car
Encouragement And, under the Constitution
Congress has no more power 10 supply the wan
Of the consent Of one, or by IFS viii 70 treat tn
dissent Of one as It's assent, than It has 70 sup
ply the consent Of both or treat their Joint dis
sent as their joint assent"
lie, therefore, assumes that rs TIC Lcsisla
ture Of Virginia on the 9TH Of December 1865
repealed an former laws relating to the cessio
Of the counties Of jefferson and Berkeley an
withdrew from the proposed compact, Congress.
iu the absence Of the concurrent agreement O
the two States, had no jurisdiction wla;ovo
over the subject.
But, il was argued by the counsel Of Yves
Virginia that the body which passed this re
pcaling act uas not he Irl.fd Legislature polg
Of he STATE Of Virginia, AMI a.is ael caInc
Be treated ~ DEE Court as q lac.
Judge G. thus most conclusivcly disposcs q
that proposition: "The act Of Congress dec
81, 1868, p SITS. at large, C32l, for the admis
sion Of West Virginia to the Uuiou recitcs =
Whereas De Legislature Of TTrg.a.q by al
act passed on the 18Th day Of May, 1862. di
give its consent O. the formation of new Stat
1rilsiH he Jurisdiction Of sad S,a.eer Tlry.a
IA
From this act the following ere inoyitabl
deductions:
lst. That on the 3lst day Of December
1862, there was State Of Virginia
2ud. That the now State was TO be formc
within the jurisdiction Of the said State q
yirginia-outofthat portion Of Virginia know
as West Virginia
81. That there wasa Legislature Of Viz
Einil' capable Of exercising one Of the hishcs
functions Of legislative power, by asserting
the erection Of o new State within the jurisiic
ton Of the State Of Virginia"
Otis plain " observes Judge c. that whei
Congress has once recognised q government a
lawfully established in State. no fsrther re
coguitiou is necessary for any judicial purpcs
SO long as that same government Is porpetua.e.
according % the forms and by the means ps5
yiled in its Constitution
lie then contends as indisputable that To
government thus recognized 10y Congress il
1862, has perpetuated itseliby regular election
down TO Dec. 8, 1865 when the act withdraw
ing the consent Of Virginia was passed by it
Legislature. That government during tn
whole Of that time was recognized by the au
thorities Of the United States as a lawful gov
eminent. Il was represented in both House
cfC0ngress, and after the war was still turtle
rr-1q-izad by a solemn pr0c'amation of IN