Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1867-06-25
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| sets, II Peters,
! Congress, then, has no general legislative
| power over tue subject of State compacts.
IN the language Of this Court az Peters.
! 'zo) the power of Congress "is limited In
express terms to assent or dissent when a
| the States"
With the exception of this power to a..
| sent or dissent to a compact otherwise COM.
| p!ete, Congress has no moro control over any,
thing necessary to the formation of a valid
compact between two of the States of the
Union, than It has to control the formation
OF compact between two foreign AID indie
pendent nations.
The States alone have the control over
whatever Is necessary to the formation of n
compact save the assent of Congress thew
alone have power, each acting for ITSELF to
ENTER into 4 compact. Neither can exert
this power without the consent of Congress-
But whether exeTte6, OF not exerted. must
depend solely on the will of each State
Whether so Gxerted as to amount 20 a con-
cluded agreement, must depend solely On the
Will OF each; and If what has been done by
one ot them, before the power to enter into
an agreement OF compact springs into exist
ence by the consent OF Congress, is not suf6..
cIent TO amount 10 a concluded agreement on
ITS part, Congress can no more make it suii-
cent than 1t can make the supposed compact.
Indeed, if it could. against the will of one of
the States, make that n compact which that
StIte then expressly and distinctly Gissented
from, then it would exert n power not to con-
sent that the two States might enter into that
compict, but to make compact for ono of
them against its will
The taIlacy of the argument comes to the
suffice with the terms used in stating it
The position of the learned counsel for West
irginia is this: The effect of the resolu-
tiou" (ot Congress) lis to legalize the trans
fer from the time it was completed 6y tAe det
fiQn Of he States. 1t relates back TO tho
time Of the transaction which it ratified, auS/
has the same legal effect as if it had be-
passed on the day the State Of West Virgin
accepted the transfer"
This assumes there was 4 "transfcr com
pleted by the action of the States" How
could there be a transfer of territory from
one State to another State completed by the
action of the States at point of time when
the Constitution prohibited these States from
'eHier'"9 INTO any compact or agreement"
AT the time when it is falsely assumed Il
two States were agreed. to make and accei
the transfer, they we're incapable ofdoiug
There was no agreement between the
Virginia was willing to agree TO the cess
provided certain conditions should be conn
with
Even in the distressing and overruling
necessities ofthe civil war, by which the people
OF the State were oppressed, the legislature
was not unmindiuI of the duty of every
civilized State to preserve its territory and
protect its people; and not to ALLEVIATE them
by cession save under the pressure of some
necessity, or for their own advantage with
their own consent. This consent was made a
condition. With it, ascertained by means
then thought sufficient Virginia was then
willing To consent to the ccssion. But when
1t became known that this fundamental condi-
ton had not been complied with that the
means provided by the legislature TO ascertain
rs performance, had through fraud and decep-
ton proved wholly inadequate and that tho
cession if made, would be against the will Of
the people Of those counties, then with as
much c.earncss as language is capable Of, Vir-
gina disscuted, aud wholly withdrew from
the proposed compact. Wha, completed
agreement then existed for Congress to assent
to! Manifest,y none.
1t remains to advert briefly to the last Do
sition on which the counsel for West Vir.
g'uIa rely, to show that the necessary COM
pact existed between the two States
1t Is that the resolve Of Congress. passad
March lO,lSG6, is conclusive evidence that
at its date the two States were agreed upon
the cession Of the territory aud Jurisdiction
OF these two counties.
AS some reliance is placed on the particu-
lar terms Of this resolve it is necessary to SEQ
what its terms are
That Congre=s hereby recognizes the ,,,n,r.r
of th" counties Of Berkeley and J.fisrsop f,,ra d.
thereto" 49,
The arGumiut is. first that this resolve
was manifes'ly designated to have reirospec.
tive operation aud to oycrreach auy attcrnpt
which might have been made to invaiidste it''
and secondly, that as Congress can. only con-
sent to an existing compact between two
States. this resolve concludes all inquiry hero
By this Court upon the question whether
there was compact then existing between
the two States.
The first branch Of this argument has been
partly answered. ]: has been shown that
the only power OF Congress is a power to rs.
sen: or dissent when compact is proposed
by two States.
II this resolve was. either manifestIy or
coEerily. designed to have any other opera
tI"n than this; If, as IS asserted, il was de-
signed 10 occTTsach any party or to accom-
plIsh anything. except simple assent to
COMPACT actually and freely proposed by two
States for the assent of Congress then it was
designed to accomplish something not within
the powers Of Congress Whatever NAV be
its language, the ou!y power of Congress was
the power Of assent or dissent to a compact
into which two States then desired TO enter.
The power TO oyerTcach one of the States:
the power TO control its action the power to
disregard It's dissent. and to convert it into
~ assent, did not exist, and il would not be
50 respectful TO Congress as this Court GER
talDly will be, to attribute to it au intention
to attempt to do what surely it ought not to
Nan IL -. J. .