Year: 1867




exist, not only that district, but any OF the
several counties of which it was co,nposed
might be ceded by Virginia TO West Virgin.
laj and that such cessiOn might be made,
not on the terms held out by the second sec.
ton of the first article of the Constitution of
West Virginia, that majority of the voters
OF the district composed of the three couu,
ties of Jefferson, Berkeley. and Frederick
should vote in favor of the proposed ( Consti.
tuition, but only if majority of the voters
of some one or more of these counties- soy.
orally, should vote in favor of annexation to
West Virginia.


How Congress can be supposed to have as
sented to something which, so far as appears
had not then been conceived of. aud which
Is greatly and substantially different frorR
anything which had then been conceived of
leave the learned counsel to show.


The counsel for West Virginia also RELY
on another clause found in the constitution of
that State when it presented itself to Con.
Gress for admission to the Union, which is in
these words:


Additional territory msy be admitted intgn.d
Legislature" - '"e


When new State formed and erected
within the Jurisdiction of an existing State
presents itself to Congress for admission to
the Union, that body has four things. and
Tour things only, to consider The first is.
whether the Legislature of the State within
whose jurisdiction the new State has been
formed, has given the consent required bv
the Constitution. The second is. whether
its constitution is a republican form of govern.
ment. The third is, whether that form of
government has been freely, fairly and deIib.
erately adopted by its people. And, lastly
whether the interests of the United States
require the admission OF the new Stat. to the
Union.


Particular provisions Of the Constitution
OF the new State, having no connection with
either OF these four subjects, are wholly aside
from the consideration of Congress. They
concern exclusively the people of that State
What powers they may choose to confer ON
the legislative, executive or judicial branches
OF their government, SO long us such powers
are III harmony with a republican form of
government, and can have no preiudicial
effect on the interest of the Union, is matter
for the people Of the State alone to determine.
And when Congress admitted the State
OF West Virginia into the Union, it must be
considered that Congress did not find it in-
consistent with the general interests of the
United States, or with Il republican form of
government, that the people of West Virginia
should grant to the legislative branch of their
government the power to consent that addi-
tIonal territory should become part Of that
State.


1t must be conceded that the admission of
the State to the Union did express the con.
sent OF Congress. that the people of the State
OF west Virginia might properly confer on
their Legislature all the power thev could
confer to acquire additional territory. Bat
surely 1t Is a grouCdless assumption that Cu,,-
gress thereby gave its assent that the new
State might acquire additional territory in a
manner prohibited by the Constitution OF the
United States. Did Congress assent that the
new State might wage war. aud acquire ad-
dltlonal territory by conquest? This will not
be pretended, Tor each State is prohibited by
the Constitution from wagjng war But not
more expressly than from acquiring rev ter
rL'ory by compact, without the consent Of
Congress to that compact.


Congress consented that the pcople of the
State might confer on their legislature all the
power to acquire additional territory which
that people had, but not all the power Con
gress had to assent or dissent when the cl.e
should be formed so to be inteIiiceutly
acted on. Congress had no ability to max.
such a grant of power. 1t is impcrativcIy
bound by the Constitution to have before it
some particular compact for its assent or dis
sent; and general license to particular
State to make any and all compacts with any
other State for the acquisition Of territory.
without the consent Of Congress would be tn.
tile.


And it would be something which there is
no plausible reason to contend that Congress
intended to do in this case The act admitting
West Virginia to the Union expressly de.
clares, as all such acts do, that it is admitted
ION an equal footing with the other States in
all respects whatever" What ground is
there for the assertion that. instead of being
on an equal footing with the other States in
all respects whatever. it came in with an un-
limited license to make comFacts to acquire
territory without the consent of Congress?


We have now arrived at distinct train Of
argument, which, while it admits that the
territory aud jurisdiction Of these two coun-
ties could be ceded and acquired only by
compact, and that the consent of Congress TO
such compact was necessary. eudeavors to es-
tabIish that the the resolve of Congress. Civ
ing its assent to their cession, passed March
10, 1865, more than three months after Vir-
ginia had Withdrawn from the proposed com
pact. was eHectual TO complete the transfer.


The first position is that this resolve. cx
pressing the consent of Congress to the ces-
sion Of these two counties is a curatiue L,fr.
which relates back to the moment of time
when the two States had agreed on the ces.
sion of this territory. and makes the contract.
then IN fact existing, valid and complete from
that moment.


It is respectfully submitted that this posi-
ton rests only on a rnisconception of the re-
spectlve powers and functions Of the States
and of Congress under the Constitution and
that it will be completely uutenable as soon
as these powers and functions are clearly
seen.


1t is the obvious meaning Of that clause of