The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-01-24


their successors are confirmed. The first
case which has come up is that of Israel
Washburne, collector of customs at Port
land, Me-, whose commission expired
some time ago. The President has sent
in the name of another gentleman for the
position, but Wasburnc will hold the office
until the nomination is confirmed.
The Contest Between the Two Virgil.
nias-The Court Divided ON the
Questions Involved, and also rs to
the Order to be Made I'm the Cause.
The COMMONWEALTH OF VIRGINIA, COM
PLAISANT, Us. THE STATE OF WEST VIRGIL
HIA.-This bill is brought to determine, by
decree Of this court, whether the coun-
ties of Jefferson and Berkeley are included
within the boundaries of the Old Dominion
or within the boundaries of the new State.
The question was heard on demurrer in
,erposed by the State of West Virginia to
the bill. The demurrer admitted all the
facts stated in the bill, and raised the ques-
lion whether upon those facts the COM
yainant was entitled, in law, to the relief
demanded. The facts in the cause have
been heretofore published in this paper.
The following is summary of the argu-
inent on the part ofthe old Commonwealth,
which is, in effect, sustained by the division
Of the Court On the demurrer as announced
below:
|. The tenth section Of the first article
of the Constitution is: "No State shall,
without the consent Of Congress, enter
into any agreement or compact with an
other State or foreign Power"; and the
proposed transfer from the Commonwealth
OF Virginia of that part of its territory
and jurisdiction now in question to the
State OF West Virginia could be effectu-
ally made only by compact or agree
ment" within the meaning Of these words
in the Constitution. Its selfevident that
one State cannot grant and another State
accept the cession of territory and juris-
diction without a compact or agreement !;
and all such compacts and agreements
have been uniformly received and treated
By the judiciary and by Congress as within
this provision of the Constitution, and as
requiring the assent Of Congress. Many
cases cited.l The acts Of States in refer
ence to their territory are not to be inter-
preted by technical rules, nor evidence by
technical words. The subject of the
transaction and the real intent and effect
Of the act are alone to be considered. And
If the thing proposed could take effect
between two States, that thing is pro-
hbted from taking effect until the assent
Of Congress is obtained.
2. The legislation Of Virginia, as to the
cession of these counties to the State Of
West Virginia, was only proposal to be-
come operative as transfer of territory
upon certain conditions; so far as it de-
pended upon the Commonwealth OF Viz
ginia to prescribe those conditions, they
are contained in its acts Of legislation.
But no proposal by one State to another
State can amount to q concluded compact
or agreement until the assent Of Congress
is given to it. Prior to that consent, any
action of the State must be deemed pro-
posal only, which it may withdraw or con-
tnue according to its own sense of right.
3. The bill shows that the Common
wealth of Virginia had amply sufficient
grounds and reasons for Withdrawing its
proposed agreement to cession of part of
It's territory, and did withdraw it before
its proposal had become operative as a
concluded compact or agreement. The
general duty of State to preserve itself
IN ali its parts, and not to cut off by ces-
SION Of territory and jurisdiction any Of
Nspeople and their property, is clear and
acknowledged. This duty yields only to
some necessity incumbent on the State, or
to considerations arising from the wishes
OF that part of its people whose cession is
lrtx, SO
; nHed by the legislation of Virginia respect
log those sessions. The requirement oft the
consent of a majority Of the legal voters
10 each of the counties, after fair oppor-
llllty 10 express their wishes according to
Tue established and legal course, was a
fundamental condition of the proposal of
ceSNon, and if cession has been made
Without such consent, it has been made
Without the consent of Virginia, and con-
"aty 70 its express will.
t. The means prescribed for the ascer-
asnment of that consent were deemed to
10 sufficient. But if through fraud and
.aalsehood they proved to be wholly insult
Acieht, the Commonwealth of Virginia was
nO' pFecluded and estopped from knowing
"e ruin and acting upon it.
-. =. II this We're question between two
private ply persons respecting grant of land,
, -nu IL were to appear that the conveyance,
,o'ugh fully executed, was made under q
mistake of the magnitude, and produced
:! 'he means shown in this bill, court
equity would annul the grant.
~, .. compact between two States,
,uoagh fully concluded, may, according to
principles Of public law, be annulled by
w." ou ol them upon discovery Of 9 mistake
.oHcernlng facts which the compact itself
'uo"s were fundamental.
d. Jorttort may one of the parties with
1a" Its assent before the compact has
len July concluded, and whatever has
n n'en Gone has been only sub sperati, and
t Ip'u discovery that condition, shown on
,o ue race Of the proceedings to be funda-
TTu a has not been complied with.
Inc argument on the demurrer was
d, aN at the last term Of the court and
,e was held under adyisement until
,L Wv. The Chief Justice now announced
d .1l .Le court were equally divided on the
,Sa lufrer and also upon the question of
. .Io order to be made In the cause in con-
''4uehce Of the diyision.-Cvonicb,