39th Congress, 1st Session.
Extracts
[p. 19, House of Representatives, December 11, 1865]
WEST VIRGINIA.
Mr. LATHAM introduced a joint resolution giving the consent of Congress to the transfer of the counties of Berkeley and Jefferson from the State of Virginia to the State of West Virginia; which was read a first and second time, and referred to the Committee on the Judiciary.
. . . .
[p. 213, House of Representatives, January 12, 1866]
BERKELEY AND JEFFERSON COUNTIES.
Mr. LAWRENCE, of Ohio, from the Committee on the Judiciary, reported back, with the recommendation that it do pass, House resolution No. 17, giving the consent of Congress to the transfer of the counties of Berkeley and Jefferson from the State of Virginia to the State of West Virginia, accompanied by a report.
The joint resolution was recommitted to the Committee on the Judiciary, and, with the accompanying report, ordered to be printed.
Mr. LAWRENCE, of Ohio, entered a motion to reconsider the vote by which the joint resolution was recommitted.
. . . .
[pp. 689-98, House of Representatives, February 6, 1866]
Mr. LAWRENCE, of Ohio. I rise to a privileged question, and call up the motion to reconsider the vote by which the House sometime ago recommitted to the Committee on the Judiciary the joint resolution (H. R. No. 17) giving the consent of Congress to the transfer of the counties of Berkeley and Jefferson from the State of Virginia to the State of West Virginia. I desire that a vote may be taken on this subject. I hope that the motion to reconsider will be agreed to. I think there will be no objection to it. I trust that then the joint resolution will be passed.
The SPEAKER. The question will first be taken on the motion to reconsider. If that be adopted, the question will then recur on recommitting the joint resolution to the Committee on the Judiciary. If that be determined in the negative, the question will recur upon ordering the joint resolution to be engrossed and read a third time.
The motion to reconsider was agreed to.
The question then recurring on the motion to recommit, it was determined in the negative.
The question then recurred on ordering the joint resolution to be engrossed and read a third time.
The joint resolution, which was read, recites in its preamble, that the General Assembly of Virginia, by an act passed on the 31st day of January, 1863, gave its consent to the county of Berkeley, of that State "being admitted to and becoming part of the State of West Virginia," and by an act passed on the 4th day of February, 1863, did, among other things, give its consent to the county of Jefferson, of said State, "being admitted to and becoming part of the State of West Virginia," which acts authorized the qualified voters thereof to hold an election within those counties on the 28th day of May, 1863, to ascertain the sense of said voters with respect to the transfer of those counties from Virginia to the State of Virginia.
The preamble further states that the Governor of Virginia, in accordance with a further provision of the acts cited, did, on the 22d day of July, 1863, certify to the Governor of West Virginia that polls were opened in the county of Berkeley, on the 28th day of May, 1863, "for the purpose indicated in said act" of January 31, 1863, and that "a very large majority of the votes cast at said election were in favor of said county of Berkeley 'becoming part of the State of West Virginia;' " and did, on the 14th day of September, 1863, certify to the Governor of West Virginia that polls were opened in the county of Jefferson on the 28th day of May, 1863, "on the question of annexation to said new State," and that "a very large majority of the votes cast at said election were in favor of 'annexation to the State of West Virginia.'"
The preamble also recites that the Legislature of West Virginia, by an act passed on the 5th day of August, 1863, did admit the county of Berkeley into and make it a part of the State of West Virginia; and, by an act passed on the 2d day of November, 1863, did admit the county of Jefferson into and make it part of the State of West Virginia; and that the State of West Virginia has, from the date of said acts of the Legislature thereof, exercised full and undisputed jurisdiction over said counties.
The joint resolution declares that the consent of Congress is given to the transfer of the counties of Berkeley and Jefferson from Virginia to the State of West Virginia; that the jurisdiction exercised over them by the State of West Virginia is approved and confirmed, and that those counties are henceforth part of the State of West Virginia.
Mr. LAWRENCE, of Ohio. The resolution now before the House proposes to give the consent of Congress to the transfer of the counties of Jefferson and Berkeley from the State of Virginia to the State of West Virginia. When the resolution was reported back from the Committee on the Judiciary on the 12th of January last, it was accompanied by a written report, which was laid upon the table and ordered to be printed for the information of members of the House. Anything which I might now say upon this subject would simply be a repetition of what is contained in that report. I will, however, state in very brief terms the facts upon which it is asked that the consent of Congress shall be given to the transfer of these counties.
On the 19th of June, 1863, if I am not mistaken in the date, the constitution of West Virginia took effect under the proclamation of the President of the United States. It contained a provision authorizing the transfer of the counties of Jefferson and Berkeley from the State of Virginia to the State of West Virginia. That was a fundamental provision of the constitution itself. On the 31st of January, 1863, the State of Virginia passed an act authorizing the transfer of Berkeley county to West Virginia on a vote of the people of that county; and on the 4th of February, 1863, the State of Virginia passed an act authorizing the transfer of Jefferson county upon a vote of the people of that county.
In pursuance of those laws, a vote was taken in each of those counties, which vote resulted in favor of the transfer. The result of that vote was duly certified; and, from that time until the present, these counties have, by common consent, been regarded as constituting a part of the State of West Virginia. They have been so regarded upon the ground that their transfer from [to?] the State of West Virginia was authorized by the constitution of West Virginia; and that, therefore, the assent of Congress was not requisite. As, however, a question has been made whether the transfer would be valid without the consent of Congress, this joint resolution has been introduced, and reported back from the Committee on the Judiciary, merely for the pupose [sic] of settling the controverted question as to whether the assent of Congress is or is not necessary to the transfer. All the departments of the government of Virginia and West Virginia, and the executive department, at least, of the Government of the United States, have recognized the transfer as already made. The courts which are held there are held under the jurisdiction and laws of the State of West Virginia. Judgments have been rendered; transfers of property have been made; criminals have been tried and sentenced; and in every possible form the transfer has been regarded as complete.
Now, I do not wish to detain the House by any further statement of the facts, because I suppose it to be wholly unnecessary. My colleague on the committee, the distinguished gentleman from New Jersey, [Mr. ROGERS,] desires, I believe, to submit some remarks in opposition to the resolution; and I will yield to him for half an hour, which I hope will enable him to say all he desires to say; and then, if any further explanation be necessary, I may ask the privilege of saying a few words in reply to him. Before doing so, however, I desire to state an additional fact. It is exceedingly important that this matter should be disposed of now. The Legislature of West Virginia, on the 1st of February last, adopted resolutions, which I send to the Clerk's desk to be read, asking the action of Congress, so that this controverted subject may be settled.
The Clerk read, as follows:
Whereas, on the 31st day of January, A. D. 1863, the Legislature of the State of Virginia passed a law giving the consent of said State to the county of Berkeley becoming part of the State of West Virginia, and authorizing a vote to be taken in said county on the fourth Thursday of May, 1863, upon the question of annexing said county to the State of West Virginia; and whereas, on the 4th day of February, A. D. 1863, a like law was passed by the Legislature of the State of Virginia authorizing the people of Jefferson county on the same day to take a vote upon annexing said county of Jefferson to the State of West Virginia; and whereas, on the said fourth Thursday of May, A. D. 1863, a vote was taken in each of said counties in pursuance of said laws upon the question of annexing said counties to the State of West Virginia, and a majority of the votes cast in each of said counties was in favor of said annexation; and whereas, on the 22d day of July, A. D. 1863, his Excellency, Francis H. Peirpoint, then, and still, Governor of the Commonwealth of Virginia, certified to the Governor of the State of West Virginia, under his hand and the less seal of said State, that from the returns on file in his office a very large majority of the votes cast at said elections in said counties was in favor of said annexation; and whereas, on the 5th day of August, A. D. 1863, the Legislature of West Virginia passed a law accepting the transfer and annexation of said county of Berkeley to the said State of West Virginia; and whereas, on the 2d day of November, A. D. 1863, the Legislature of West Virginia passed a like law accepting the transfer and annexation of said county of Jefferson to the said State of West Virginia; and whereas ever since the passage of these laws the State of West Virginia, and the various State, county, and township officers of said State, have continually exercised exclusive and undisputed jurisdiction, and all the acts of municipal sovereignty necessary for the good government of said counties; and whereas it has been recently claimed and insisted that the transfer and annexation of said counties was not valid and complete until the same was ratified by Congress; and whereas the doubts and uncertainty created by such claims and representations tend greatly to create a spirit of insubordination and disloyalty to the laws and government of the State: Therefore,
Be it resolved by the Legislature of the State of West Virginia, That our Senators and Representatives in Congress be requested to urge the speedy passage of a bill or joint resolution by Congress giving its consent to the annexation and transfer of said counties to the State of West Virginia, ratifying and approving the same.
Resolved, That the Governor be requested to furnish each of our Senators and Representatives in Congress a copy of the foregoing resolution.
Adopted January 18, 1866.
CLERK'S OFFICE, HOUSE OF DELEGATES,
WHEELING, January 22, 1866.
I certify that the foregoing is a true transcript from the record in this office.
WILLIAM P. HUBBARD.
Clerk House of Delegates and Keeper of the Rolls.
STATE OF WEST VIRGINIA
OFFICE OF SECRETARY OF STATE.
I hereby certify that the foregoing is a true copy of the original filed in this office.
Given under my hand and the less seal of the State, at my said office in the city of Wheeling, this 25th
day of January, 1866.
[L. S.]
GRANVILLE D. HALL,
Secretary of State.
Mr. ROGERS. I hope the honorable gentleman who reported this bill will not confine me to half an hour. I cannot state by objections in thirty minutes.
Mr. LAWRENCE, of Ohio. I think that half an hour will be enough.
Mr. ROGERS. I am indebted to the gentleman's courtesy for the time I am to occupy; and as am the only member of the committee who opposes the bill, I hope I will be allowed to have full time to state my objections and the reasons for them.
The SPEAKER. There are forty-five minutes of the gentleman's hour left.
Mr. ROGERS. Mr. Speaker, this is an application to Congress to give its consent to a transfer of Jefferson and Berkeley counties from old Virginia to West Virginia, some two years after the transfer was supposed to have been made. It was supposed, according to the theory of the report of the committee, that it was unnecessary to have any action on the part of Congress to ratify and consent to the transfer of a part of old Virginia to West Virginia. The report goes upon the hypothesis that the government under Governor Peirpoint was a government de jure, and that therefore any act of old Virginia under Governor Peirpoint consenting to the transfer of any part of its territory to West Virginia was an act of the sovereign power of old Virginia, and legal.
Mr. KELLEY. The gentleman assumes, as has been done several times upon the other side of the House, that West Virginia was recognized by the vote of the Republican portion of the House, upon the ground of the consent of the State of Virginia to the organization of the State of West Virginia. I am not, sir, prepared to say there were not some gentlemen upon this side of the House who voted upon that ground; but I am prepared to say that there was one who did not, that there were others who did not, and that there was one who appealed, in casting his vote in that way, that he should not be misunderstood, and many others responded, saying they could not stultify themselves by assenting to the idea that the State of Virginia was in a condition to consent. We voted for her admission because the people of this portion of our territory had organized a State, and came to Congress asking for admission into the Union, and believing we had the right to admit them, as they had arranged all the proper preliminaries, we did so admit them. I wish to enter my protest against the idea being sent abroad any further, that our action recognizes Virginia as having the right to consent to anything which should be made a condition for the action of this Congress.
Mr. ROGERS. The report of the committee, unanimous, except so far as I am concerned, bases the authority of Congress to recognize the transfer of a part of old Virginia to West Virginia upon the ground that the State of old Virginia was a State de jure under Governor Peirpoint. It is asserted she had the right to transfer any portion of her territory, because she was a State de jure; and that by virtue of that fact old Virginia was recognized by all the departments of the Federal Government, and all the necessary machinery of government was carried on in old Virginia as in any other State of the Union. But when they came to another part of the case, and it is the main point, and it is asked whether it does not require the consent of old Virginia, West Virginia, and the Congress of the United States at the same identical moment to carry into effect a tripartite agreement for the transfer of a part of old Virginia to West Virginia, then they say it is doubtful whether Virginia is more than a mere government de facto.
Now, gentlemen will remember that the State of Virginia, before Congress had taken any action on this subject at all, several months ago, and since the war ended, passed a solemn act of her Legislature under her new constitution, counting these two counties into the State of old Virginia, and refusing her consent to the transfer of these counties to the State of West Virginia. That was before Congress had taken any action on this subject at all. The main question in this case then arises, whether that did not end the proposed agreement. I desire that you may regard this question as you would between any other two States; because it is an important one, in which not only the citizens of the State of West Virginia, old Virginia, and all the other States are particularly concerned, namely, whether a State, although it has given its consent that a part of its territory shall be given up to another State, may not withdraw that consent at any time before the other party, whose consent is necessary to make a legal arrangement between the parties, shall have given its consent; I mean by the other party the Congress of the United States.
Now, I hold that if the State of old Virginia was a sovereign State, if she was a State de jure at the time of the formation of the government of Virginia under Governor Peirpoint, she is a State de jure to-day, and that the authority which she exercised in taking away the consent which she had before given to the transfer of a part of her territory to West Virginia was a sovereign exercise of authority, which she had a right to make; and if she withdrew it at any time before Congress gave its consent - I mean the third party whose consent was required in order to complete the contract - then the contract was not completed and the grant was unexecuted.
Mr. WOODBRIDGE. I would like to ask my colleague on the committee whether the contract had not been ratified before this repeal by the old State of Virginia, which I understand occurred on the first day of the convening of the present session.
Mr. ROGERS. No, sir, it was not ratified. Congress never has given any ratification or consent, directly or indirectly to the transfer of the counties of Berkeley or Jefferson to West Virginia.
Mr. WOODBRIDGE. I merely want to know whether that ratification was not performed by all parties except the consent of Congress before the repeal of the law or grant by those States, and was not the jurisdiction of the two counties transferred?
Mr. ROGERS. The transfer of the jurisdiction of the two counties was not complete, and West Virginia had no right by law to exercise any authority over the counties of Berkeley and Jefferson until Congress had given its consent to the transfer. The act of Virginia authorizing the establishment of the State of West Virginia, reserved in the act the control and jurisdiction of those counties until Congress should give its consent to the acquisition of that territory by the State of West Virginia; and until that time the transfer was not complete. But these two counties were not included in the act of Congress. It is a condition of the act that Congress should ratify the act of old Virginia consenting to the erection of West Virginia, and until Congress consents to the erection of that State, old Virginia has the entire and exclusive control and jurisdiction over the whole of the original State.
Mr. LATHAM. I wish to correct a mistake of the gentleman in regard to the act to which he refers, and which is now the matter under consideration by the House - not the act authorizing the erection of a new State. The act under consideration now, giving consent to the transfer of the two counties, was a subject which took place at a period subsequent to the act of the State of Virginia giving its consent to the establishment of the State of West Virginia and its admission into the Union by Congress. The act which gives the consent of the State of Virginia to the transfer of these two counties, states that the jurisdiction of the State of Virginia over these counties shall cease upon their admission by the State of West Virginia, without the consent of Congress. And the jurisdiction did so cease, was voluntarily withdrawn by their authorities, and the jurisdiction of West Virginia extended over them immediately upon their admission by the State of West Virginia. If the gentleman will allow me, I will read the act.
Mr. ROGERS. That will not be disputed; that is not the point I am making. The point is, that when West Virginia was put into an independent position as a State, old Virginia stated in her act giving her consent that she should have entire sovereign control over every foot of that State until Congress gave its ratification to the contract between the two States, and that originally, when West Virginia was admitted as a sovereign State into this Union, it was upon the express condition that certain counties, naming them, should constitute the new State, and that these counties remained subject to the sole control of the State of old Virginia. Now, suppose that at any time after old Virginia had given its consent, and before Congress had given its consent, and entered into the agreement necessary to complete the transfer, old Virginia had withdrawn her consent, could she not have done it? Is there a lawyer in this House who will say to me that although a State may consent to the transfer of a portion of its territory to another State on condition that she shall hold sovereign power over that territory till Congress recognizes the act, that she has not the right at any time before Congress ratifies the agreement to withdraw her consent from that contemplated contract? Is it in the eye of the law a consummated contract at any time unless the three parties consent and agree to the contract at the same identical time. Either party has a right to withdraw its consent at any time before the agreement is fully consummated.
Mr. LATHAM. I will just state that upon the admission of West Virginia into the Union there was no contract between Virginia and West Virginia. There could be none, because West Virginia had no existence until admitted into the Union by the Congress of the United States, and consequently it followed, as a matter of course, that the jurisdiction of the State of Virginia should be extended over all the territory which was erected into the State of West Virginia until West Virginia became a State by admission into the Union by the Congress of the United States. There could be no agreement between the States until West Virginia became a State. After the act authorizing West Virginia to become a State in the Union, the Legislature of Virginia provided by two separate acts for the transfer of the counties of Berkeley and Jefferson, a clause of one of which reads thus:
"If a majority of the votes at the polls opened and held pursuant to this act be in favor of the said county of Berkeley becoming part of the State of West Virginia, then shall the said county become part of the said State of West Virginia when admitted into the same with the consent of the Legislature thereof."
Mr. ROGERS. We do not disagree at all upon that part of the case about the counties. I am coming to that directly, but that is not the point now. As to the point the gentleman raises, that because West Virginia had not then been established as a State, no contract could have been made between the States of West Virginia and old Virginia. Now, that is not so, because, under the Constitution of the United States, no State has a right to give up one inch of its territory at any political community, organized body, State, or Territory, or to any citizen, without the consent of Congress. And why? Because the citizens of the United States, according to the decision of the Supreme Court of the United States, are interested in the dismemberment and disintegration of the territory of the United States. No State can give up one foot of its territory to any other State, corporation, political body, or living individual without the consent of Congress as a party to the contract.
In support of this position I read from a case reported in 18 Howard, page 494, decided in the United States Supreme Court:
"By the tenth section of the first article of the Constitution, no State can enter into any agreement or compact with another State without the consent of Congress. Now, a question of boundary between States is in its nature a political question, to be settled by compact made by the political departments of the Government."
"And if Florida and Georgia had, by negotiation and agreement, proceeded to adjust this boundary, any compact between them would have been null and void without the assent of Congress."
I say that any agreement between the States of old Virginia and West Virginia with regard to the transfer of Berkeley and Jefferson counties was null and void. Every act, therefore, of the State of West Virginia exercising jurisdiction over these two counties was in violation of law and a usurpation. West Virginia has no more right to exercise the functions of a State over these counties than she would have over the State of New Jersey or any other State in the Union.
I read further:
"This provision is obviously intended to guard the rights and interests of the other States, and to prevent any compact or agreement between any two States which might affect injuriously the interests of the others. And the right and duty to protect those interests is vested in the General Government."
The Constitution of the United States, section three, article four, says no new State shall be formed or erected within the jurisdiction of any other State without the consent of the Legislatures of the States concerned, as well as of Congress. Now, West Virginia could be established in old Virginia by an act of the Legislatures and the consent of Congress, provided the organic law of the State authorized the Legislature so to do.
Now, I have another case here, a case which the committee have referred to in their report, and by which they attempt to sustain the position they take upon this point, and which shows point blank to the contrary, that that position is not tenable. No gentleman on the other side of the House, however prejudiced, can doubt that the position I take is tenable and cannot be contradicted or overthrown by any one. The tenth section of the first article of the Constitution of the United States provides that no State shall, without the consent of Congress, enter into any agreement or compact with another State. Now, I hold that a Legislature of a State cannot transfer the territory of the State unless the State constitution provides for the act; and old Virginia having no such provision in her constitution, her consent to the transfer of these counties was void.
The committee refer to the case of Kentucky and Virginia, decided in the Supreme Court of the United States. And I am going to read that part of the case to which they refer. They refer to the case for the purpose of showing that because there was a provision in the constitution of West Virginia, that other territory might be added to that State with the consent of her Legislature. Therefore, when Congress admitted West Virginia into the Union as a State, it admitted her with the right to add territory to the State as she pleased without any further action by Congress at all. The committee proceed upon the assumption, in their report, that because there is a provision in the organic law of West Virginia that new territory may be added to it afterward by act of its Legislature, that gives West Virginia the right, and the unlimited right - because if you admit the principle at all, you must admit it as an unlimited right - to add all the territory she may see fit to add. And she may take in the whole of old Virginia; she may take in all the State of Maryland; she may take in all of Ohio and Pennsylvania, and so on until she has absorbed the whole Union in one conglomerated mass of sovereign power and jurisdiction without the consent of Congress, by annexing it to the State of West Virginia. If the theory and construction of the organic law of West Virginia is correct as given by the committee, if you admit the doctrine that because the constitution of West Virginia contains a clause giving the right to add new territory, she may annex these two counties without the consent of Congress, then you must go the whole length of allowing her to add all the territory of the United States if she sees fit, without the consent of Congress; and thereby destroy the whole unity of the States of this Government, and consolidate them under the name of the State of West Virginia. No lawyer will pretend that is so. It does not require a lawyer to see the absolute absurdity of any such theory as that upon which the hypothesis set forth in this report of the committee is based. That clause in the organic law of West Virginia simply authorized the Legislature to do what it could not do without it.
Allow me to read from Wheaton's Reports, volume eighth, in regard to the separation of Kentucky from Virginia, from the decision of the Supreme Court of the United States:
"The first objection is founded upon the allegation that the compact was made without the consent of Congress, contrary to the tenth section of the first article, which declares that no State shall, without the consent of Congress, enter into any agreement or compact with another State, or with a foreign Power. Let it be observed, in the first place, that the Constitution makes no provision respecting the mode or form in which the consent of Congress is to be signified, very properly leaving that matter to the wisdom of that Body, to be decided upon according to the ordinary rules of law and of right reason. The only question in cases which involve that point is, has Congress, by some positive act, in relation to such agreement, signified the consent of that body to its validity? Now, how stands the present case? The compact was entered into between Virginia and the people of Kentucky upon the express condition that the General Government should, prior to a certain day, assent to the erection of the district of Kentucky into an independent State, and agree that the proposed State should immediately after a certain day, or at some convenient time future thereto, be admitted into the Federal Union. On the 28th of July, 1790, the convention of that district assembled under the provisions of the law of Virginia, and declared its assent to the terms and conditions prescribed by the proposed compact; and that the same was accepted as a solemn compact, and that the said district should become a separate State on the 1st of June, 1792. These resolutions, accompanied by a memorial from the convention, being communicated by the President of the United States to Congress, a report was made by a committee to whom the subject was referred, setting forth the agreement of Virginia that Kentucky should be erected into a State, upon certain terms and conditions, and the acceptance by Kentucky upon the terms and conditions so prescribed; and on the 4th of February, 1791, Congress passed an act which, after referring to the compact, and the acceptance of it by Kentucky, declares the consent of that body to the erecting of the said district into a separate and independent State, upon a certain day, and receiving her into the Union."
Here is what the court say:
"Now, it is perfectly clear that, although Congress might have refused their consent to the proposed separation" -
Now, mark the theory of the honorable gentleman from Vermont [Mr. WOODBRIDGE.] He asks me whether this contract was not complete between these two States without the ratification of Congress, and whether the grant has not been carried into effect, so that it cannot be recalled by the party that gave the grant. Now, I affirm that it can be recalled; it is not complete, because Congress may refuse its assent to the admission of any State; and if Congress can refuse its assent, can a compact, an agreement or a grant between parties, depending upon that assent, be completely and definitely fulfilled until that assent is given by the third party, who is to enter into the agreement as one of the parties?
Mr. WOODBRIDGE. I will ask my friend from New Jersey whether the contracting parties, West Virginia and "old Virginia," as he calls it, the one making the grant and the other receiving it, had not done all that they could do before the repeal of this grant by the Legislature of the so-called present State of Virginia. I think that all the gentleman's law could be answered, even though "old Virginia" were so far in the Union as a State as to make her ordinances valid at the time when she passed the recent act of repeal. But so far from that I believe that any act that she might pass would have no control over the acts passed by a State which was at the time of the passage of the act recognized by the General Government as being a State in the Union; for when the last act was passed, although as a State she was not in the sense that some contend out of the Union, yet she was in such a condition that she had not the power to pass ordinances and laws of any binding force either upon Congress or the country.
I will say in addition, that the Legislature which passed the recent act of repeal was organized without taking the oath of office which has been prescribed by Congress or by its own constitution.
Mr. ROGERS. The present Legislature was organized under Governor Peirpoint and is now recognized as the Legislature of the State of Virginia de jure, by the President and other officers of the Federal Government, and she holds her powers to legislate now under and by the same authority she did when she passed the act giving her consent to the transfer, and by virtue of that same power she has withdrawn her consent and repealed her former law.
I ask the gentleman this question: suppose that we had had no war; that we had continued in peace and prosperity, and that old Virginia had passed an act of her Legislature to transfer a portion of her territory to West Virginia; that West Virginia had made a constitution similar to this, and that before Congress had given its consent old Virginia had withdrawn her consent from that proposed compact or agreement, would she not have had a right to do so at any time before Congress ratified that contract?
Mr. WOODBRIDGE. I will state, then, Mr. Speaker, as a matter of law, that if there were in this grant conditions precedent to be performed by the other party before the grant should become operative, then, if the conditions precedent were not performed, the grant might fall. But I contend that the ratification by Congress is not a condition precedent, and that such ratification subsequent to the full acceptance of the grant by the contracting parties is all that is necessary.
Mr. ROGERS. I will ask the gentleman one question. Could the grant be complete, and would a State have a right to take possession of the territory of another State, by virtue of acts of the Legislatures, before Congress had given its consent, and would the acts of that State over territory of the other State be legal without the consent of Congress?
Mr. WOODBRIDGE. I can only answer the gentleman by referring to what I have already said.
Mr. ROGERS. Now, sir, let me proceed with the decision I attempted to read. The court decides, and it is the Supreme Court of the United States, as follows:
"Now, it is perfectly clear, that although Congress might have refused their consent to the proposed separation, yet they had no authority to declare Kentucky a separate and independent State, without the assent of Virginia, or upon terms variant from those which Virginia had prescribed."
I ask what authority the Congress of the United States has this day to declare these two counties a part of the State of West Virginia without the consent of old Virginia. There is the point, the very point which is raised in this case, which the learned gentleman who made this report has referred to as sustaining his report. What right, I ask, has the Congress of the United States to ratify an act upon the part of West Virginia and old Virginia, which has been revoked upon the part of old Virginia, who has expressly withdrawn her consent before Congress has had an opportunity to express its assent.
The SPEAKER. The gentleman's time has expired.
Mr. ROGERS. I hope the gentleman will not cut me off here.
Mr. LAWRENCE, of Ohio. How much time does the gentleman ask?
Mr. ROGERS. Half an hour more.
Mr. LAWRENCE, of Ohio. I do not object if it does not come out of my time.
Mr. ROGERS. Of course not.
Mr. HALE. I hope that the time of the gentleman from New Jersey will be extended half an hour, and that it will not be taken out of the time of the gentleman from Ohio.
There was no objection, and it was ordered accordingly.
Mr. ROGERS. Let me conclude reading the extract which I had commenced. It is the case of Green vs. Biddle:
"Now, it is perfectly clear, that although Congress might have refused their consent to the proposed separation, yet they had no authority to declare Kentucky a separate and independent State, without the assent of Virginia, or upon terms variant from those which Virginia had prescribed. But Congress, after recognizing the conditions upon which alone Virginia agreed to the separation, expressed by a solemn act the consent of that body to the separation. The terms and conditions, then, on which alone the separation could take place, or the act of Congress become a valid one, were necessarily assented to, not by a mere tacit acquiescence, but by an express declaration of the legislative mind, resulting from the manifest construction of the act itself. To deny this is to deny the validity of the act of Congress, without which Kentucky could not have become an independent State; and then it would follow that she is at this moment a part of the State of Virginia, and all her laws are acts of usurpation."
I want gentlemen to mark that.
The court further say:
"The counsel who urged this argument would not, we are persuaded, consent to this conclusion; and yet it would seem to be inevitable, if the premises insisted upon be true..
This decision shows that, until Congress gives its consent to the transfer of one part of a State to another, all the acts of the other over the new territory are usurpations. It has no right or power then until Congress has given its consent to that exercise of power.
But, sir, the Congress of the United States never gave its consent to the admission of West Virginia upon any theory that the counties of Berkeley and Jefferson were to form a part of the new State. I have the act of Congress for the admission of the State of West Virginia into the Union, which, whether purposely or otherwise, has been omitted from the report of the committee. It provides as follows:
"Whereas the people inhabiting that portion of Virginia known as West Virginia did, by a convention assembled in the city of Wheeling on the 26th of November, 1861, frame for themselves a constitution, with a view of becoming a separate and independent State; and whereas at a general election held in the counties composing the territory aforesaid on the 3d day of March last the said constitution was approved and adopted by the qualified voters of the proposed State; and whereas the Legislature of Virginia, by an act passed on the 13th day of May, 1862, did give its consent to the formation of a new State within the jurisdiction of the said State of Virginia, to be known by the name of West Virginia, and to embrace the following-named counties."
The act then designates the forty-eight counties which are to compose the State of West Virginia; and among them we nowhere find mention made of the counties named in the pending joint resolution; and they are not included in the forty-eight counties which Congress agrees shall constitute West Virginia. It does not name the counties of Berkeley and Jefferson.
The committee say this was a contract on the part of Virginia which cannot be recalled; and in order to substantiate that ground they refer to the action of Congress, Virginia, and West Virginia, giving their consent to the admission of the latter State into the Union, which cannot be now withdrawn. We are told when that contract was entered into it could no more be annulled than any ordinary contract in reference to land.
The gentleman also refers, as evidence to show that Virginia had no right to withdraw her authority and consent, that when jurisdiction was granted over the District of Columbia, and the States sold dock- yards, ground for forts, and United States buildings to the Federal Government, they might withdraw their consent as well as in this case. Sir, they could not withdraw their consent. Why? Because it only took two parties to make that contract, namely, the Congress of the United States and the States where the dock-yards, buildings, grounds, and forts were located; and when Congress entered into that agreement with the State it was final and irrevocable, and required the action of no other party in order to complete it. Therefore, those cases have no bearing whatever on the point here.
Now, how does the case stand? If old Virginia was a State de jure in 1863, when West Virginia was admitted into the Union, and the last act of the Legislature of Virginia giving her consent to the transfer in 1863 was valid, and she a State de jure, how could she have been a government de facto in only two years after, because when she gave her consent to this transfer the State of Virginia was almost solely - much more than at any other time - under the control of the confederate army. How could she have been a State de jure then, with the right to exercise sovereign power in conveying away a part of her own territory any more than she was in 1865, when she revoked her consent, and after the Union has been restored, when the war was at an end, when peace reigned, when her Legislature has been recognized, when the mails are carried through her territory, and when her Governor and her Representatives to Congress, elected by the people, have been recognized by the executive branch of the Government? If the argument is good that because the departments of this Government recognized the State of West Virginia, and of old Virginia in 1862 or 1863, is it not good now? Do not they recognize it? Does not the President of the United States recognize it? Do not all the officers in the Cabinet recognize it in the same way?
Mr. WILSON, of Iowa. Will the gentleman yield for a question?
Mr. ROGERS. I will not object to yielding if it does not come out of my time. I have no time to spare. Now, the committee admit the fact that West Virginia has not acquired these two counties through any consent of Congress, unless article four, section sixteen of her constitution, by which she was admitted into the Union, can be construed constructively to give such consent, which seems to be the idea contained in the report of the committee on page 2. Now, I have shown by the opinions of the court that it is necessary for Congress to give consent, and by the act of Congress that it did not give its consent to the incorporation of more than forty-eight counties into the State of West Virginia.
I propose to offer an amendment to the report of the committee. Although I believe that every exercise of jurisdiction over these counties on the part of West Virginia is null and void, all I ask is that this question shall be sent back to the counties of Jefferson and Berkeley, so that the people may vote upon it according to the laws of the country, whether they want to be admitted and incorporated into West Virginia or to remain with old Virginia. I propose this amendment, to come in at the end of the bill:
Provided, That the question of the annexation of the said counties shall be referred to a vote of the people of each of them at an election to be held on the second Tuesday of April next, by commissioners appointed by the Governor of Virginia, and a majority of the legal voters of said counties under the laws of Virginia shall, at said election, be found in favor of such annexation.
But how am I met? I am now going to answer that argument. I am met by the argument of the learned gentleman who reported this bill, that we have no right to send this proposition back to these counties for their action. Why not? When West Virginia presented herself here under the agreement between herself and old Virginia to be admitted into the Union by act of Congress, she was refused admission and was sent back and told that when that State abolished slavery she could be admitted under the Constitution as a free State by act of Congress. And a new section was added to the constitution, and it was submitted to the people in March, 1863, and in April, 1863, the State was admitted upon the conditions prescribed by Congress, to wit, the abolition of slavery. But that constitution was never submitted to these counties. And it was not until January, 1863, that Virginia gave her consent to the transfer of these counties by a mere act of her Legislature. She was a State de jure then, to exercise one of the highest acts of sovereignty in the transfer of her domain. She was a State de jure a few months ago in repealing her act for transfer. Her de jure sovereignty as a State has since been acknowledged in her ratifying the constitutional amendment. If she was not a State de jure in 1863, when she gave her consent, her act was null and void, and the exercise of authority by West Virginia is usurpation on that account; but upon every view of the case, West Virginia usurped her powers in controlling these counties before Congress consented.
If Congress had a right to send back West Virginia for the purpose of having a vote there and a new constitution formed, so that the requirements of Congress might be complied with by West Virginia, will any gentleman who is a lawyer tell me that Congress has not the right under that same inherent power to order that an election shall be held in these counties to take the sense of the people whether they shall be added on to West Virginia or remain in the gallant State of old Virginia?
Mr. LAWRENCE, of Ohio. If Congress now sends back the question to the people, by what means can Congress compel the people to take a vote upon this question?
Mr. ROGERS. By the same means by which Congress compelled West Virginia to take a vote on amending her constitution. An election may be held there in such manner as Congress may dictate under the laws of old Virginia. Congress has the right to send back this question to the people of these counties. The same thing was done in the case of Kansas. When the Territory of Kansas came here with a State constitution, because that constitution did not comply with certain conditions which Congress thought ought to be imposed, it was sent back to the people of the Territory, and they voted upon it before Congress would admit that Territory in the Union as a State. There is no doubt that anybody that has power to carry any act into effect has the inherent right to do everything that by necessary implication goes with it. I hold it a well-settled principle of law that old Virginia had no right to transfer part of her territory to another State unless her organic law gave her the right to do so. There was never any feature in the constitution of Virginia under which she could transfer her territory in this manner. This was a simple act of the Legislature of Virginia, held under the pressure of despotism and tyranny in time of civil commotion, and that Legislature had no right to transfer away a part of the territory of Virginia unless the organic law gave the Legislature the power to do it. And to prove my position, we see by the report of the committee that the State of West Virginia has put in a section in its organic law that new territory may be admitted by the Legislature. But suppose the organic law of West Virginia had made no provision for that, will gentlemen on the other side tell me that West Virginia would then have had the right to make any such compact, by virtue of a mere act of her Legislature, any more than soldiers of Pennsylvania and New York would have had a right to vote in the field without a change of the constitutions of those States? That clause in the organic law can only be construed to mean that new territory may be added to the State, by the Legislature, with the consent of Congress.
But, sir, I call the attention of the radical party on the other side of the House to the fact that if the assent of Congress is given to the addition of these counties to West Virginia, you recognize both West Virginia and old Virginia as States, legally constituted States, States de jure, incorporated into this Union. I would like the gentleman from Pennsylvania, [Mr. STEVENS,] the leader of the other side of the House, to show me the consistency of a vote upon his part for an act of Congress ratifying what the States of Virginia and West Virginia have done, when he claims that when the war was commenced the southern States became dead, lost their State existence, and became mere Territories.
And not only that, but the action of this House has decided that these counties did not constitute a part of West Virginia. I refer the House to the report made by the Committee of Elections in the case of McKenzie vs. Kitchen. All the members of that committee were men of intelligence and members of the Republican party, and most if not all lawyers.
That committee decided, without a dissenting voice, that Berkeley and Jefferson counties belonged to old Virginia, and that they were no part of the territory of West Virginia. The report says:
"But the claimant, McKenzie, by his notice of contest, contends that Berkeley county, where Kitchen received a large vote, and without which he would be in a small minority, was, on the day of election, no part of the seventh congressional district of Virginia, but was at that time a part of West Virginia, and consequently not entitled to vote for a Representative in this district."
That report was made on February 8, 1864, about two years ago. Let us see what it says further:
"Under the first of these acts of the State of Virginia, it does not appear that anything was done by the voters of Berkeley, Jefferson, and Frederick, to 'ratify and assent to the said constitution' of West Virginia, as provided in that act; and if not of course the act had no effect in transferring the county of Berkeley to West Virginia."
That committee in their report admit that the constitution of West Virginia has not been submitted to the vote of the people of Berkeley and Jefferson counties. There was some clause in that constitution by which commissioners should set the time and places where the election should be held; but none was held. And the only election held in Jefferson and Berkeley counties was in two places, Harper's Ferry and Shepherdstown, which were both under the control of the military; and only about one hundred votes were cast out of a vote of twenty-five or twenty-six hundred votes. The committee say:
"If they did proceed to 'ratify and assent' as therein required, still neither of these counties is embraced in the act of Congress admitting West Virginia, passed December 31, 1862."
The Committee of Elections make the same argument that I make now. When that argument was made by them, it was potential and powerful in this House; and when made by me, is it to be entitled to no consideration simply because I do not happen to agree with honorable gentlemen on the other side of the House? I submit that this is no political question, but a question of jurisdiction between States, which has yet to receive the sanction of the Supreme Court of the United States. And let us deal with this question as we would with any other of like character. But I do not fear for the result. I have fear that the old, gallant State of Virginia, where the bones of Washington and Jefferson, and so many of the heroes of the Revolution repose, will be torn asunder by the action of this Congress, under the influence of party prejudice against that State.
The Committee of Elections proceed to say:
"But there is a further objection to this claim of Mr. McKenzie. The act of Congress admitting West Virginia into the Union enumerates the counties of the old State which shall compose the new one; and Berkeley is not one of them. Congress has never consented to the transfer of the county of Berkeley from the one State to the other; and without that consent it cannot be done. Berkeley county is therefore still a part of the old State of Virginia."
Are the Action of Congress in refusing to admit either of the contestants into this House, the opinion of the very learned and legal gentlemen of the Committee of Elections, most emphatically deciding that Berkeley county belonged then to the old State of Virginia, to be regarded here as founded on the law and truth? And I ask the gentlemen on the other side if that report was true two years ago, is it not true to-day? Does not the same principle, which never dies or passes away unless the Government is subverted or overthrown, hold good yet?
And the committee go on the say that there were such military operations then being carried on there that they believe a fair election could not be held, and no fair election has been held there since that time, although the tramp of armies, the roar of artillery, and the sound of arms have passed away. I ask that we shall submit this question back again to the people of the counties of Berkeley and Jefferson, and let them say whether they want to constitute a part of the State of West Virginia or not.
Has Congress retroactive action? And is not this a retroactive law, an ex post facto law, one for the purpose of confirming acts upon the part of West Virginia in exercising authority outside of her own dominions, which they admit they had no right to exercise, for they ask Congress to give their legislative sanction for their action, because West Virginia had no more right to exercise authority over these two counties than New Jersey had to exercise authority over those same counties.
Now, sir, I submit that there is no authority on the part of Congress to ratify this, that the three parties must consent altogether, and that until such consent be obtained, no act of this kind can be carried into effect, by reason of the well-established rule in reference to the construction of contracts; that if A, B, and C contract C constitutes an essential party to the contract as much as A and B, and without the concurrence of C in the contract, it fails to the ground; and A and B may withdraw from it at any time before C has ratified it.
What is a contract? It is, according to the definition given by Blackstone, an agreement between two or more parties to do or not to do a particular thing. This is an agreement between parties to do a particular thing, and until the three parties have agreed to it, the contract is not consummated.
Now, sir, in the face of these grave doubts which are raised, will gentlemen object to allowing the people of these counties to say whether they desire that this transfer shall take place? If the theories of the gentlemen upon the other side are correct, West Virginia no more constitutes a State of the Union than the most remote Territory. It is, as I believe, a serious question whether West Virginia is a State; but I am not here to argue that question. I am willing to admit, purely for the sake of argument, that she is a State; but recognizing her as properly occupying the position of a State in the Union, the consent of the other contracting party to the transfer of any portion of her territory is necessary before Congress can carry it into effect.
Now, sir, here is the report of a committee of this House, in the case of McKenzie vs. Kitchen; and this report takes the same ground that I now occupy, and makes the same argument. The gentlemen who made that report are gentlemen of talent and learning, and belong on the other side of the House, one of them, the gentleman from Kentucky, [Mr. SMITH.] All agreed to the proposition that these counties could not be transferred to West Virginia from old Virginia, on account of Congress not having consented, and being a necessary party to the agreement. We make the same argument that the committee do in reference to the reorganization of the confederate States, by quoting the acts of the different branches of the Government recognizing them as States. But when that question is in issue we are told that that argument amounts to nothing. But that case has no bearing upon this. The Constitution confers no power on Congress to reorganize States, and the acts of secession having been void from the beginning, all action based upon them is equally void. The President has expended his authority in protecting the people in the organization of their States, and they are now as much States as they ever were, as they never did or could commit suicide without the consent of the other States.
Now, sir, what difference does it make what the Executive Departments of the Government have done in reference to this transfer? They are not authorized to control our action on a question of this character. Neither the President of the United States nor any member of his Cabinet has the right to recognize certain territory as constituting part of a certain State, so as to preclude the action of Congress on the question, or legalize an illegal act. Why? Because this question stands on a different ground from the question of reconstruction, because Congress alone has authority to regulate this matter, by virtue of the Constitution of the United States. Hence, I say, I do not care what action the Executive Departments may have taken with reference to this question. I do not care what Secretary Chase, or Secretary Stanton, or President Lincoln, or any other person connected with the executive department of the Government, may have done in reference to this question. It is a matter depending rightly upon the exercise of the sovereign power of the thirty-six States of this Union in Congress assembled. The consent of Congress is necessary before any such contract as this can be carried into legal effect. An act which is void ab initio cannot be rendered valid by retroactive legislation of one of the parties only.
We are all interested in this transfer. Pennsylvania is interested in it, New Jersey is interested in it, all the States are interested in it. If a Legislature in New Jersey should consent to the transfer of a large part of that State to the State of New York, and the people of the State of New Jersey should turn that Legislature out and put another Legislature in its place to recall that action, are we to be told that that cannot be done before the consent of Congress had been given to the transfer? I say that the people of a State have the power to annul any such act before it has been carried into effect. If they have not then I say that power in this Government does not emanate from the people but from the representatives of the people, and Legislatures can dispose of the domain of States and prevent the repeal of the acts, before all the necessary parties have consented, and violate that plain rule of law, that a Legislature can pass no act that a subsequent one may not repeal.
According to the theory of gentlemen on the other side, the contract is complete, the agreement carried into effect, the grant executed and delivered, the property delivered into possession without the consent of Congress, and for that reason Virginia cannot withdraw her consent. According to that argument, if West Virginia has exercised sovereign control by virtue of a contract which cannot be revoked, then there is no necessity to have any act of Congress on the subject. If it is complete without congress, then why come here and ask Congress to act on it? If West Virginia has control over the counties of Berkeley and Jefferson, I ask gentlemen what is the use of this proposition at all? How inconsistent you are, even on your own theory. You say that the contract is complete, that these counties have been recognized by all the departments of the Government, that West Virginia has instituted courts in those counties, and tried and hung men there, and that was all legal; yet you come here by the report of this committee and ask Congress to ratify all these things, as if they were illegal. But there is no such authority in West Virginia, she has no sovereign control over these counties. As I have shown by the decision of the court, she has no power until the consent of Congress has been obtained.
[Here the hammer fell.]
Mr. LAWRENCE, on Ohio. Mr. Speaker, I have listened attentively to the remarks of my distinguished colleague on the Judiciary Committee, but he has failed to satisfy me that this resolution ought not to pass. It seemed to me that he has failed entirely to answer the arguments submitted in the report which I had the honor to make to this House on the 12th day of January last.
I believe, sir, that the State of Virginia assented to the transfer of the counties of Berkeley and Jefferson to the State of West Virginia. It seems to be conceded that the State of West Virginia agreed to the transfer, and that all that was necessary to complete the transfer was the consent of Congress. It seems to be conceded that if the consent of these two States and that of Congress had been obtained the transfer would have been complete. The gentleman tells us that the State of Virginia withdrew her assent, and therefore this transfer is not now legal. I am free to say that the Legislature of Virginia, the so-called Legislature of Virginia, since this Congress commenced, did pass an act withdrawing her assent to the transfer of these two counties from old Virginia to West Virginia; but it seems to me that withdrawal can have no effect on this bill for three reasons:
First, West Virginia having accepted the transfer and the State of Virginia having assented to it, that assent cannot be any subsequent legislation be withdrawn. On the faith of her assent given by the Legislature of Virginia to this transfer, West Virginia took jurisdiction over these counties, organized her courts, and assumed complete jurisdiction; and that jurisdiction has been recognized by Virginia, accepted by West Virginia, and acknowledged by the authorities of the national Government.
There is another reason why Virginia could not withdraw her assent to the transfer of these two counties, and that is because Congress has already assented to the transfer. This resolution is not introduced because it is absolutely necessary, but simply for the purpose of settling a controverted question. When Congress admitted the State of West Virginia into the Union, with a clause in her Constitution authorizing her to receive the transfer of these two counties, that was itself a consent on the part of Congress; and no further consent was necessary on the part of Congress.
Mr. DAWES. I would like to have the clause on the constitution read.
Mr. LAWRENCE, of Ohio. I will read the clause in the constitution of West Virginia. The second section of the first article of the constitution, after naming the counties absolutely made part of the State, provides:
"And if a majority of the votes cast at the election or elections held as provided in the schedule hereof in the district composed of the counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this Constitution, the said four counties shall also be included in and form part of the State of West Virginia; and if the same shall be so included, and a majority of the votes cast at the said election or elections in the district composed of the counties of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia."
Mr. DAWES. I would like to have my friend answer this question: whether the district composed of Jefferson, Berkeley, and Frederick, is the district composed of Jefferson and Berkeley? It is the district composed of Jefferson and Berkeley which it is proposed to transfer to West Virginia, but there is another district known as Jefferson, Berkeley, and Frederick.
Mr. LAWRENCE, of Ohio. Oh yes the vote contemplated both of them. The vote was to be taken in the several counties.
Mr. DAWES. That is not the question I raised. It was, whether they consented that that particular district, composed of the several counties, should be transferred upon the vote of the several counties. Was it not that specific district, namely, the district composed of those three counties; and was that the same district which we propose now to transfer?
Mr. LAWRENCE, of Ohio. Two of the counties are.
Mr. DAWES. I do not understand the assent to be that these three counties, or any two, or any one of them, are transferred, but three. I suppose it to be this: that they may assent to a particular district embracing three counties for very good reasons. I do not say that they are so, for I do not propose to object to this resolution particularly; but they may have very good reasons why two of these counties should not go unless the third one went with them.
Mr. LAWRENCE, of Ohio. I will not controvert the gentleman on this subject, for I do not regard the question as at all material.
Mr. DAWES. While I am up I desire to put myself right on the record. Some gentlemen from these two counties sent to me (I do not know why, particularly) remonstrances against this measure, purporting to be signed by twelve hundred citizens of one of the counties and by six hundred of the other. I presented their petitions. I say I do not know why I was selected as the organ to present them, but I would inquire of the gentleman whether these parties had an opportunity to be heard before the committee?
Mr. LAWRENCE, of Ohio. I will answer all that. The question which the gentleman makes is one of construction. That is, it is a question of the construction of this clause in the constitution of West Virginia, whether two of the three counties named in that district could become a part of West Virginia upon a vote taken in those two counties severally. Well, sir, I am not very particular as to what construction shall be put on that clause of the constitution of West Virginia, because if there by any difficulty about that clause, it is removed by other acts of the Legislatures of Virginia and of West Virginia.
Mr. DAWES. What I want to find out is whether these eighteen hundred people, whose petitions I presented, as will be found by referring to the Congressional Globe, have had an opportunity to be heard.
Mr. LAWRENCE, of Ohio. In answer to that, I have already stated, and the report to which I have already referred shows the fact, that laws were passed by the Legislature of Virginia, while that was a recognized State, giving the consent of the State to the transfer of those counties, and authorizing a vote of the people of those counties. And all these petitioners and remonstrants then had an opportunity to be heard when that question was voted upon by the people of those counties.
Mr. DAWES. What I wanted to know was this: some eighteen hundred men have selected me as their organ, every one of them an entire stranger to me, to present their remonstrance. Now, I wish to know if the committee gave them any opportunity to be heard, not whether they had some opportunity somewhere else.
Mr. LAWRENCE, of Ohio. I will state that all these remonstrances were before the committee, besides a large number of petitions asking the consent of Congress to the transfer of these counties.
Mr. DAWES. I know that the remonstrances were there, because I sent them there. I only want to know if the men had any opportunity to be heard, whether you gave them any notice. That is all. Just put that on the record.
Mr. LAWRENCE, of Ohio. No, sir; we did not send out a constable with summonses saying to these men that we were in session and would be pleased to hear them. They never asked any permission to be heard, and we never notified them that we were in session; but we were always ready to hear all who desired to be heard.
Mr. DAWES. I wish to inquire of the chairman of the Judiciary Committee, if he is in the House, whether he did not receive a note from one of these men requesting an opportunity to be heard.
Mr. LAWRENCE, of Ohio. The chairman is not here at present, or he could answer for himself. I would ask the gentleman from Massachusetts this question, whether those remonstrances are signed by men who were entitled to vote, whether they are not rebels who had no right to vote?
Mr. DAWES. I have already stated that every one of them is a stranger to me, and I know, of course, nothing about that. I suppose that a great deal the better way to ascertain that fact would have been to hear them. I would inquire of the gentleman one thing further: if the committee ever notified the member who presented these remonstrances that they were hearing this case, so that he could give notice to the parties?
Mr. LAWRENCE, of Ohio. So far as I am advised, no member of this House, and no citizen of either of these States, and no man has ever asked permission of the committee to be heard, but after a full examination of this whole matter the committee made this report:
"The information in possession of the committee leaves no doubt on their minds as to what would now be the result of a vote for the restoration of these counties to the State of Virginia. The question is one which has since the close of the war entered largely into the local politics of these counties. The party which styles itself the 'Union party,' and is called by its opponents the 'radical party,' is unanimously in favor of retaining these counties in West Virginia; while the democratic, or, as it styles itself, the 'conservative party,' is generally in favor of restoring them to the State of Virginia.
"At the annual election held on the fourth Thursday of October, A. D. 1865, the Union ticket received in Berkeley county nine hundred and twenty-three votes, and the so-called democratic one hundred and thirty-seven votes; and in the county of Jefferson, the vote as returned by the supervisors of the county to the Governor was for the Union ticket three hundred and four votes, and for the so-called democratic ticket one hundred and ninety-nine votes."
This report was made, printed, and laid on our desks on the 12th of January, and yet no request has ever been made to be heard in opposition to it, or at any time on the subject.
Mr. DAWES. I do not see that that answers my question. I have no doubt that that is the conclusion that the committee came to without a hearing.
I wish the gentleman to understand that I am in favor of giving the assent of Congress to this measure. I am on the record in the last Congress to that effect. I suggested to the members from West Virginia in the last Congress the necessity of obtaining that assent. I am here now, without any solicitation of my own, the organ of eighteen hundred men in these counties, whether loyal men or not, as remonstrants against this measure. I thought it was due to them that the committee should state to the House whether they had had an opportunity to be heard. There is always a decent way of doing everything, and I have no doubt the committee in this case have adopted that way. I do not mean to say that they have not.
The SPEAKER. The time of the gentleman from Ohio [Mr. LAWRENCE] has expired.
Mr. LAWRENCE, of Ohio. I hope my time will be extended a few minutes.
Mr. WHALEY. I do not wish to interfere with the gentleman from Ohio. I merely wish to answer the question of the gentleman from Massachusetts, [Mr. DAWES,] as regard the petitioners from these counties, of whom he states that he is the organ. He asked the gentleman from Ohio [Mr. LAWRENCE] whether they had had the privilege to be heard before the committee. I only desire to say that they have another organ upon this floor, who has been heard to the fullest extent; I refer to the gentleman from New Jersey, [Mr. ROGERS.] That is all I desire to say, and I will now yield the remainder of my time to the gentleman from Ohio, [Mr. LAWRENCE.[
Mr. LAWRENCE, of Ohio. I say again, in answer to the inquiry of the gentleman from Massachusetts, that, so far as I am advised, the committee has never denied any gentleman the privilege of being heard before them in opposition to this resolution. On the contrary, so far as I know, no application has ever been made to the committee for a hearing; none has ever been made by the gentleman himself; and the distinguished gentleman from New Jersey, [Mr. ROGERS,] who opposes this resolution, was heard before the committee as he has been heard on this floor.
Mr. DAWES. I wish merely to state that I did not expect any invitation. It was not a matter that I desired to be heard upon. But I have been informed by these men, as a matter of complaint, that they addressed a note, on two different occasions, to the chairman of the committee [Mr. WILSON, of Iowa] begging an opportunity to be heard; and that they had had neither any notice nor any reply to their note. I wished to draw that out; that is all.
Mr. LAWRENCE, of Ohio. How that is I do not know. I never heard of any such note or any request to be heard.
Mr. DAWES. The gentleman will understand my position, I hope.
Mr. LAWRENCE, of Ohio. Yes, sir, I insist that the Legislature of Virginia, if it were a valid Legislature, could not now withdraw its assent to the transfer. It could not withdraw its assent to the transfer, because West Virginia has acted upon the faith of the transfer, upon the faith of the law giving the assent of the old State of Virginia to the transfer. That clause of the Constitution of the United States which requires the assent of Congress was not inserted for the benefit of the State concerned, but to enable the Congress to protect the interests of the United States. And therefore Virginia, old Virginia, has no right to claim any benefit from the fact that Congress had not given its assent to the transfer prior to the time when the so-called Legislature of the State of Virginia undertook to pass an act withdrawing her consent to the transfer. Virginia could make no such objection or resume her jurisdiction until Congress had refused assent to the transfer, or had for an unreasonable time delayed to assent.
Mr. WILSON, of Iowa. Will my friend from Ohio [Mr. LAWRENCE] allow me to interrupt him for a moment?
Mr. LAWRENCE, of Ohio. Certainly.
Mr. WILSON, of Iowa. I understand that the gentleman from Massachusetts [Mr. DAWES] has addressed an inquiry during my temporary absence from my seat to the Committee on the Judiciary. If he will now propound his question I will answer it.
Mr. DAWES. I will say to the gentleman from Iowa [Mr. WILSON] that I did not make the inquiry in any spirit of complaint. But the parties who have made me their organ (why they selected me I cannot tell) have complained to me that they had not been allowed an opportunity to be heard before the committee, and I inquired of the gentleman from Ohio [Mr. LAWRENCE] if the remonstrants had had an opportunity to be heard before the Committee on the Judiciary on this question. I did so that they might see in the report of our proceedings here an answer to my inquiry. The gentleman from Ohio replied that they had expressed no such desire to him. I then inquired if the chairman of the Committee on the Judiciary [Mr. WILSON] had received a note which they had addressed to him. I had understood from them that they had twice sent a note to him, but had received no reply.
Mr. WILSON, of Iowa. In answer to that inquiry I will make this statement: after this subject had been passed upon by the committee, and the report had been submitted by my colleague [Mr. LAWRENCE, of Ohio,] to the committee, and had been agreed to by them, I received a note from a Mr. Pendleton, who resides in one of these counties, not asking to be heard before the committee, but stating generally his reasons for not desiring this action on the part of Congress. It was not such a letter that I deemed it called fro an answer from me, but a mere general statement to me of his objections to this proposed action of Congress. No one that I can now recall to mind asked of me an opportunity to appear before the committee, either asking it in person or by letter. If any such letters have been written, they have failed to reach me.
Mr. DAWES. One of the gentleman told me that he had written such a letter.
Mr. WILSON, of Iowa. I can only say that if any such letters have been written to the chairman of the committee, they have failed to reach him.
Mr. DAWES. That is sufficient for my purpose; I only wish to have it appear in the Globe that these letters were not received.
Mr. WILSON, of Iowa. It may have been owing to the fact that the region of country is now in such a disturbed condition that the mails are irregular.
Mr. LAWRENCE, of Ohio. I have been interrupted so often that I am scarcely able to follow the line of argument that I was pursuing, though I had not expected to discuss this subject at all; and only after I heard the remarks of the gentleman from New Jersey [Mr. ROGERS] did I intend to speak at all. But I hope I shall be able to present this matter so that is will be understood by the House.
I will again state, and briefly, the position which I take in this matter. The consent of the old State of Virginia was given for the transfer of these counties of Berkeley and Jefferson to the State of West Virginia, and that transfer was accepted by West Virginia. The consent of Virginia was given by an act of her Legislature, authorizing a vote of the people of those counties to be taken. That vote was taken, and it resulted in favor of the transfer. Now, I maintain that Virginia could not withdraw her consent after once having given it, and that especially she could not withdraw it by any act passed by her present so-called Legislature. And this is the third ground I proposed to assign. She could not withdraw it for the reason that once having given it, and the State of West Virginia having accepted the transfer, the old State of Virginia could not, as a matter of good faith, and as a matter of law, now withdraw her consent; for a grant by one State having been accepted and acted upon by another becomes irrevocable, unless Congress interpose to object to it. As between the States the grant is at once operative, since they have performed all the Constitution requires of them to perfect the transfer. Congress may object, but the States may not, and Congress has not objected, nor yet suffered an unreasonable time to elapse before acting on it.
Besides, she cannot withdraw her consent by the act which her so-called Legislature assumed to pass since the commencement of this session of Congress, for the reason that this Congress has refused to recognize the existing government of Virginia as a lawful government. Why, sir, at the commencement of this session we refused to admit gentlemen claiming seats as Representatives from that district of country now called the State of Virginia. We have uniformly refused to recognize the existence of any valid legislative body or of any existing State government in the State of Virginia. It is a matter of historical notoriety that her present Legislature is assembled in direct violation of her own constitution; that its members have failed to take the oath prescribed by her own laws; that the number of the members has been increased in utter violation and contempt of her own constitution; that the existing body called the Legislature of Virginia is not a legal body at all; and Virginia though having a State government de facto is without any valid or constitutional State government to-day. Therefore that Legislature could not by any act withdraw the assent of the State of Virginia, previously given by a legislative body which was recognized as a lawful body.
I have already, Mr. Speaker, attempted to demonstrate, by a reference to a clause of the constitution of West Virginia, that Congress has already assented to the transfer of these counties. My argument, it seems, was not quite satisfactory to the distinguished gentleman from Massachusetts, [Mr. DAWES.] I will not repeat the argument on that subject, contained in the report of the Judiciary Committee, but I invite the attention of the house to that, as it embodies my views, and which I regard as conclusive.
But, sir, Congress has, by other means, given its assent to the transfer of these counties. And how? Why, sir, the gentleman from New Jersey [Mr. ROGERS] was pleased to read to this House an extract from a report made by the Committee of Elections, February 8, 1864, in the case of McKenzie vs. Kitchen. He evidently examined that report somewhat hastily, for he failed to read the following very material portion of it:
"It may not be improper to call attention to the fact that while the whole number of votes cast was two thousand and fifty-nine, only nine hundred and sixty-two of these were case for Mr. Kitchen; and that of those seven hundred and thirty were cast in the county of Berkeley, where Mr. Kitchen now resides, a county which, on the same day that these votes were cast, voted also unanimously to attach itself to West Virginia, and which has, so far as the Legislature of both States can effect it, been made a part of the new State, and separated from this district altogether."
This vote was followed by a surrender of jurisdiction over these counties by Virginia and an assumption of jurisdiction complete and exclusive by West Virginia, continued uninterruptedly from that day to this.
Mr. Speaker, Congress has by other means recognized these counties as constituting a part of West Virginia. On this floor are her Representatives, one of whom comes here with a certificate declaring that he was elected in the district composed in part of the counties of Berkeley and Jefferson. He has been admitted to a seat here as a Representative from that district. This is a recognition by this House at least of the fact that these two counties constitute a part of the State of West Virginia.
Those counties are represented, too, in the Legislature of West Virginia, and they are not represented in the so-called Legislature of Virginia. That body now sitting at Richmond does not claim to exercise jurisdiction over these two counties.
Mr. ROGERS. The gentleman will permit me to say that the Legislature of old Virginia does claim jurisdiction over these two counties, and they are both represented in that body.
Mr. LAWRENCE, of Ohio. I have not so understood.
Mr. ROGERS. The new constitution of old Virginia was adopted in 1864, and these counties, along with the county of Frederick, were constituted a judicial district, and to each one of them were apportioned two delegates in the Legislature of Virginia. By an act of the Legislature, of 1864, they are made a part of the eighth congressional district; and each county is now represented in that Legislature by two members.
Mr. HUBBARD, of West Virginia. Can the gentleman from New Jersey tell me the names of those members?
Mr. ROGERS. I cannot.
Mr. HUBBARD, of West Virginia. Can he tell me when those members were elected?
Mr. ROGERS. No, sir. They attempted to hold an election about a year ago, but Governor Peirpoint sent an army to prevent them. They have since held an election under the new constitution. They voted for the new constitution.
Mr. LAWRENCE, of Ohio. Then I am correct; neither of those counties are represented in that body sitting at Richmond, known as the Legislature. No elections have been held there. So far from it, those counties have been recognized as part of West Virginia by the national Government, and a military force has been sent out by command of the President to prevent the authority of Virginia from having any control over them whatever.
Mr. Speaker, I have briefly answered the several grounds of objection which I understand have been taken by my colleague on the Judiciary Committee. I wish now to make a single remark in answer to what was said by the distinguished gentleman from Pennsylvania, [Mr. KELLEY.] He said, if I understood him correctly, that the new State government set up in Virginia under Governor Peirpoint, in 1861, derived its validity from the fact that it was admitted as a new State in the Union, and not because government was thereby guarantied to an existing geographical State of the Union, and that West Virginia was admitted as a new State and derived no validity from the consent given to its erection by the Peirpoint new State government of Virginia.
Mr. KELLEY. I do not know whether I made myself understood. I wanted to state the proposition that some of the members of Congress who voted to admit West Virginia excluded as far as they could the conclusion that they voted for it upon the ground that the State of Virginia had given its assent. I was of that number. We believed the State of Virginia had been overthrown; that the territory belonged to the United States; that the people on it owed allegiance to whatever government was administered by the United States; that these were in the Union while the constitution of Virginia had been overthrown; that therefore the territory which had been known as the State of Virginia was mere territory which the Congress of the United States was bound to provide with government as fast as the armies of the United States could bring it under the control of the Federal Government, and they consented to admit West Virginia as a new State into the Union, as they would admit a new State made out of the counties of old Virginia and the border States.
Mr. LAWRENCE, of Ohio. Even without the consent of Virginia?
Mr. KELLEY. There was nowhere any State of Virginia to consent; it had been overthrown.
Mr. LAWRENCE, of Ohio. Well, Mr. Speaker, although it is not material to the question before the House, I will briefly state my position on that subject. I maintain that the original lawful State government of old Virginia was overthrown by the rebellion, but that the geographical State of Virginia and the population of Virginia all remained in the Union. I maintain that it then became the duty of Congress to guaranty to the geographical State a government republican in form; that Congress did it; that when the Peirpoint government was first set up in Virginia it became the de jure government of Virginia, and was recognized as republican in form, and had then the capacity to consent to the erection of the new State of West Virginia; that it did consent to the erection of the new State of West Virginia, and there became the two States in the territory formerly of Virginia - the State of Virginia and the State of West Virginia. I hold that since that time the government of old Virginia, which had been set up under Governor Peirpoint as a new State government, has ceased to be a de jure government, but the geographical State of Virginia as it exists after the erection of West Virginia still lives in the Union, and her people are in the Union; that they have simply a de facto government; that it is not a government de jure, and because it is not a government de jure this legislative body of Richmond had no authority by the passage of an act to withdraw consent which the prior de jure government of Virginia had given to the transfer of these two counties from old Virginia to West Virginia. That is my idea of the matter.
I have occupied more time than I ought to have done in answering my colleague on the committee. I have answered every objection which I have heard, except one which has been sent to me in a newspaper with a passage marked so that I might notice it. The heading of the paper is as follows:
"THE NEW ERA. E. W. ANDREWS, EDITOR AND PUBLISHER. Martinsburg, West Virginia."
It is under date of Thursday, January 25, 1866. In that paper is an article, which I understand has been circulated extensively among member of Congress, containing these words:
"But why is it that neither in this report nor elsewhere is it attempted to be shown that the Legislature of Virginia has any power to alien these counties?"
This article refers to the report I had the honor to make to this House on the 12th of January last, and presents the inquiry whether the Legislature of a State has the power to consent to transfer counties from that State to another State. I am a little surprised this question should be made, because in the case of Georgia vs. Florida, 17 Howard's Reports, 478, the Supreme Court held that the power of changing State boundaries with the consent of Congress is one of the essential attributes of the limited sovereignty of States, expressly recognized by the national Constitution.
A different rule of construction is applicable when you come to interpret the Constitution of the United States and the constitution of a State. The authorities on this subject are collected in a case in the twentieth volume of the Ohio Reports, which I do not now have before me. The Constitution of the United States creates a national Government with limited powers, enumerated powers, and such incidental powers as are necessary to carry them into effect. But the government of every State in this Union is of a different character. It is of that limited sovereignty which a State may have, and its government is not a government of enumerated powers, but it is a government having all the powers of legislation which are not denied to it, either by the Constitution of the United States or by the constitution of the State. Now, among the powers of sovereignty in every international State is the power to transfer territorial jurisdiction. This power is recognized by the laws of nations. It is a part of the treaty-making power of all nations. But in our system that sovereign power has been restrained, so far as the States of this Union are concerned, by the Constitution of the United States. They cannot, as an absolute sovereignty may, transfer territories and territorial jurisdiction by any treaty-making power; they cannot transfer it to any foreign Government; but as between themselves territories and territorial jurisdiction may be transferred by the consent of Congress. This power has been exercised by the States in ceding jurisdiction to the national Government for forts, arsenals, dock-yards, and for the District of Columbia. It is a power not now to be doubted. As between Virginia and West Virginia, the territorial sovereignty over these two counties then has been transferred, and it only requires the assent of Congress to complete it. That is the very question now submitted to this House, to determine whether we shall give this assent.
Mr. STEVENS. Will the gentleman allow me a portion of his time?
Mr. LAWRENCE, of Ohio. I will yield to the gentleman ten minutes.
Mr. STEVENS. I deem it necessary to say a word. I mean to vote for this joint resolution as I voted for the admission of West Virginia. I mean to vote against the preamble, believing it all - not a lie, but not the truth - [laughter,] wholly inconsistent with the ideas which the majority of this House hold with regard to the State. When West Virginia came here to ask to be made a State it professed to come with the consent of old Virginia, and of new Virginia. The consent of old Virginia was given by a Legislature got up during the rebellion sitting in Wheeling, and the consent of new Virginia was got up in the same city of Wheeling, and they came here pretending that they had the consent of old Virginia, a hundred thousand people all along between here and the borders of West Virginia, and yet not a man could go down even at that time to Alexandria without being taken for a foe and carried to Richmond. That was the consent of old Virginia.
Now, sir, any man who supposed that under the Constitution that State was legally divided by the consent of old Virginia and the assent of new Virginia, was a - very kind man [laughter] and believed what he wanted to believe. He had faith, because, as somebody has said here, "Faith means to believe a thing because it is impossible." Now, then, I voted for the admission of West Virginia; but at the time I stated that I hoped, while I was going to vote for it, that no man would think me fool enough to do so on the ground that the provisions of the Constitution which applied to the dividing of the States had been carried into effect. But I voted for it not unconstitutionally; I voted for it in perfect accordance with the Constitution, admitting a new State out of conquered territory. [Laughter.] And I hold that doctrine yet.
Now, sir, this assent of old Virginia to these two counties being annexed to West Virginia was of the same kind. I am sorry my friend has found it necessary to put it upon any other ground. What was the condition of the Legislature of old Virginia in 1863? Why, sir, over here at Alexandria, a little beyond it, our lines existed. After West Virginia was declared a State, the Governor of old Virginia, who had been elected by a vote of a few counties over the border, took his saddle-bags and went down to Alexandria and said he was still Governor of what was left of old Virginia, and sat there and ordered a convention for the purpose of altering the Constitution of old Virginia. Eleven townships or thereabouts, some of them in that neighborhood and one about Fortress Monroe, where our troops were located, elected seventeen men, by about seventeen votes apiece, for one million and a quarter of the people of old Virginia. These seventeen men came and held a convention at Alexandria, made a constitution, and proclaimed its adoption in the market-house of that place. Before they got through I believe the rebel army came there and drove them off.
Mr. DAWES. I would inquire if one of those seventeen was not the man that the gentleman voted to admit here as a Representative.
Mr. STEVENS. I never voted to admit anybody as a Representative that my friend did not ask me to vote for. [Laughter.]
Mr. DAWES. My friend is laboring under a mistake.
Mr. STEVENS. Well, I may be.
Mr. DAWES. The gentleman voted to admit a man that the Committee of Elections reported against.
Mr. STEVENS. I doubt it. Well, I do not know; I have not looked at it.
Mr. DAWES. I refer to Joseph Segar. The committee reported against him; he came here with only twenty-five votes.
Mr. STEVENS. I believe I voted him in, and then voted him out. [Laughter.]
Mr. DAWES. Is the gentleman certain about that?
Mr. STEVENS. No, sir, I am not. During those two years we made a most ragged record, as the gentlemen well knows. [Laughter.]
Now, sir, I was describing this convention. I say that that convention, consisting of seventeen members, made a constitution and ordered an election for Governor, at which Governor Peirpoint was elected by thirty-three hundred votes, two thirds of them Yankee soldiers, and he was declared in the market- house of Alexandria Governor of the one hundred and fifty counties of Virginia. Call that a State, do you? And it was a Legislature consisting of eleven men called under the action of that convention that gave their consent, that these counties should be annexed to West Virginia.
Mr. LATHAM. Will the gentleman allow me to correct an error of fact into which he has fallen?
Mr. STEVENS. With pleasure.
Mr. LATHAM. It was an act of the Legislature of Virginia at a time when the State of Virginia had jurisdiction over the whole of what is now West Virginia.
Mr. STEVENS. I am speaking of the last Legislature.
Mr. LATHAM. The last Legislature passed no such act.
Mr. STEVENS. I do not refer to the present Legislature. There was a Legislature consisting of eleven or twelve men before the present Legislature was elected. They sat at Alexandria.
Mr. LATHAM. This legislation took place before that.
Mr. STEVENS. Then there is not any consent at all. That other Legislature was dead and buried long ago.
Mr. LATHAM. All the legislation bearing on the question now before the House was passed by the Legislature of Virginia before the State of West Virginia was erected.
Mr. STEVENS. Well, sir, I do not know much about that, but I do know that it is said that Virginia has withdrawn her consent. Now, the present Legislature is certainly acting under the constitution that was made by these seventeen men at Alexandria. Well, after Lee's surrender, Governor Peirpoint took an omnibus - or I believe it was an ambulance - and took the records and all the officials, the whole government down to Richmond. [Laughter.] And then these eleven men constituting the new Legislature altered the constitution - the Legislature altered the constitution - and allowed other persons to be elected and rebels to come in, for Governor Peirpoint complained that unless they did that he could not find loyal men enough in the State to make up a Legislature. That is the government and that is the Legislature that has been withdrawing its consent! Sir, it is ridiculous. No man enjoys low comedy more than I do, but these low farces are too small to be acted on the theater of the nation; they ought to be spurned; there ought to be no sanction for them here.
I shall vote for the resolution just as it is reported, because I am willing to annex any part of our conquered province that was once Virginia to West Virginia, just as the Platte country was annexed Missouri. I am willing to go further. I wish the State of West Virginia had taken her natural boundary, the crest of the Blue Ridge, so as to include the whole of the noble valley of the Shenandoah. I shall vote for the resolution upon the ground I have mentioned and none other, but I shall vote against the preamble, and I hope the House will vote it down, for it is not necessary and it is not quite true.
Mr. LAWRENCE, of Ohio. Mr. Speaker, I am sorry my distinguished friend from Pennsylvania cannot agree with me. I think, however, the difference between us is not a very material one in its practical results. I do not stand here to vindicate the government of Virginia since it has been transferred to Richmond. I am not here to assert that it is a legal government. But I do say that whatever government in a geographical State is recognized by Congress, is the government of that State, and it makes no difference whether it shall be composed of few counties or composed of many; whether it shall be able to exercise jurisdiction all over its geographical limits or over only a portion of them.
I maintain, then, that this State of West Virginia became a State by the joint action of Congress and the recognized State government in old Virginia; and that that recognized government in old Virginia (the government of Peirpoint, which was set up after the rebellion had driven out the original lawful State government) was a government lawfully set up under section four of article four of the Constitution of the United States.
Mr. BLAINE. Will the gentleman allow me to make an inquiry of him at this point?
Mr. LAWRENCE, of Ohio. Certainly.
Mr. BLAINE. As there are several very able constitutional lawyers in this House, I desire to submit a query that seems pertinent to this discussion. Section three of article four in the Constitution reads thus:
"New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any other State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress."
The section seems to be divided into three clauses, and my query is, whether the second does not, by fair grammatical construction, contain an absolute inhibition on "the erection of a State within the jurisdiction of another State." In this way bringing that semicolon into conflict with some precedents in our history. I shall cheerfully vote for the pending bill, and I should find no difficulty in justifying the vote, if it were needful, on the ground that West Virginia was the creature of revolution, as I think she was in her origin as a State.
Mr. LAWRENCE, of Ohio. I deny that the State of West Virginia is the creature of revolution; it is wholly the creature of law; that is, it is a State lawfully created in the forms required and authorized by the Constitution. It is too late for this Congress to say that under the clause of the Constitution which the gentleman from Maine [Mr. BLAINE] has read a State may not be formed out of another State, for Kentucky was formed out of the State of Virginia.
Mr. BLAINE. Kentucky was ceded to the United States and afterward erected into a State.
Mr. LAWRENCE, of Ohio. That is the same thing.
Mr. BLAINE. I think the case somewhat different, but I confess to the gentleman from Ohio that I do not think there is much in the point I have raised except a criticism on punctuation.
Mr. LAWRENCE, of Ohio. The Government of the United States has acted upon this question already, not only in the case of Kentucky, but by admitting West Virginia as a State. I will say to the gentleman from Maine that the construction for which he contends is not the proper grammatical construction to be given to it, nor is it the construction put upon it by the jurists of this country. The construction for which I contend is the one always recognized, acted on, and so completely established that it is constitutional law not now to be questioned or overturned.
The effect of that section three of article four, so far as this question is concerned, is precisely as though it read, "New States may be admitted by the Congress into this Union; and no States shall be formed or erected within the jurisdiction of any other State without the consent of the Legislature of the State concerned, as well as of the Congress." For this purpose it reads just as though the clause which I have omitted to read was not in the section at all.
And now, one word as to the duty of Congress, where the government of a State is overthrown. The whole duty and the whole power of Congress on that subject is contained in section four of article four of the Constitution of the United States, which is in these words:
"The United States shall guaranty to every State in the Union a republican form of government," &c.
That clause contemplates or recognizes two things; first, that the government of a State is one thing; and, second, that the State itself, for certain purposes, is another thing. In other words, there may be a geographical State, which is a thing different and distinct from the government of that State. When the lawful government of a State is subverted and destroyed, as it may be by rebellion, it then becomes the duty of the United States, of Congress, to guaranty to the geographical State a republican form of government. The duty is not to guaranty to a portion of the geographical State, but to the whole of the geographical State, a republican form of government. The duty is not a guaranty to the geographical State the same government which it had before, or to permit the people to resume the same government which they had before. But it is to guaranty a republican form of government; not the republican for of government which the State originally had.
It is to be any republican form of government which may be acceptable to Congress. And it was by virtue of that power that the Peirpoint government was established in the old State of Virginia, when by rebellion and treason the original lawful government of Virginia had been overthrown and abandoned. That is the position which I take; that is the view which I believe to be warranted by the clause of the Constitution which I have read. For when the geographical State has no government it has not a "republican form of government." The duty to guaranty government is, among other things, to provide the means of setting up a new State government when none exists. A guarantor is bound to do that which the principal ought to have done. The geographical State and the people never were and never can be out of the Union, but a State government may be abandoned or overturned, yet the nation cannot thus be destroyed. The national power may then be invoked to set up, to guaranty, new State government, and the power belongs to the nation, because it is essential to national life; for it [sic] left to the recreant States or the people thereof it might never be done by them.
Mr. STEVENS. Mr Speaker, I desire to make a single remark somewhat personal to myself.
It has several times been said in the course of debate that I hold that the States that were engaged in the rebellion are dead. Now, I have never said anything of that kind. In my speech on this subject, I argued that, whether they are out of the Union, or dead, lying about in the Union, it amounts practically to the same thing. But I never pretended that those States are dead; I insist that they have never been dead, that they have always lived as States. The only difference in my position from that of some other gentlemen who have spoken is that I affirm that during the war they were States under the confederate government, and not under the Government of the Union.
Mr. LAWRENCE, of Ohio. Mr. Speaker, I was about to call the previous question; but, as I have twelve minutes of my time remaining, I yield the remainder of my time to the gentleman from Ohio, [Mr. BINGHAM,] with the understanding that he will call the previous question.
Mr. BINGHAM. Mr. Speaker, I wish to remark that the preamble of this resolution is wholly unimportant, and I trust it will be voted down. I submit that the State of West Virginia is a State of the Union. I submit to the House that it is too late to challenge the power of the Congress of the United States to authorize the formation of a new State within the jurisdiction of a State of this Union with the consent of the Legislature of such State; for it was done by the First Congress, composed in a great measure of the very men who framed the Constitution. The gentleman from Maine [Mr. BLAINE] is mistaken in his statement that the territory of Kentucky was ceded to the United States. I affirm that the State of Kentucky was erected within the territory of the State of Virginia, by the consent of her Legislature, and by act of Congress admitted into the Union.
Mr. DAWES. I would remind the gentleman from Ohio that the same thing was done in the case of the State of Maine, which was formed out of a part of the territory of the State of Massachusetts, with the consent of the Legislature of Massachusetts.
Mr. BINGHAM. Yes, sir; and the State of Vermont was formed in the same way from part of the territory of the State of New York, with the consent of the Legislature of New York.
Having had the honor to take some humble part in the formation of the State of West Virginia and her admission into the Union, I wish to say that in doing what I did, I but followed the example of the men who made the Constitution, and among them, of him whose peerless name is first attached to that great instrument.
Mr. Speaker, having said this much, I desire to repudiate once for all the statement of the venerable gentleman from Pennsylvania, [Mr. STEVENS,] that in the exercise of this power, I, as one of the majority of this House who admitted the State of West Virginia, did it as an act of sovereignty over a conquered territory and a conquered people. I deny that the armies of the Union have ever made one loyal citizen the enemy of my country or one rood of the original Republic conquered territory by suppressing this unmatched and atrocious rebellion. The soil of the States that engaged in the rebellion remained through all the storm and darkness a part of my own, my native land in spite of the treason which was enacted upon it; and now that that treason has been subdued, it remains still a part and parcel of the native land of every natural-born citizen of the Republic. The loyal people of South Carolina, the loyal people of Virginia, are no more conquered subjects than is the venerable gentleman himself. They were all the while under the protecting shield of the Constitution. The armies of the Union struck to maintain the supremacy of the Constitution and to give effect to the laws, that the loyal might be protected and the disloyal crushed.
I deny ever having countenanced any such dogma as that the loyal people of West Virginia ever were conquered by our arms. The armed rebel was conquered. In accordance with the principle laid down by him who is sometimes called the Father of the Constitution, (Mr. Madison,) three hundred thousand of the loyal citizens of the State of Virginia, by reason of the rebellion and treason of the remaining seven hundred thousand of the citizens of that State, had the exclusive right of civil magistracy within the limits of the entire Commonwealth. No matter whether the loyal people of Virginia met in Richmond or Wheeling, in the persons of their chosen representatives; they asserted thereby their right, under the Constitution of the United States and in accordance with the statute law of the State of Virginia. When the majority of the State of Virginia turned traitors the minority of citizens therein who rejected the treason, being sufficiently numerous to constitute a State, had the right to assemble in any part of the State and exercise all the power which pertained to them as citizens of the State, subject to the approval of Congress, but without question of the rebel majority. Why? Because in such loyal minority the entire sovereignty of the State abides, for the simple reason that the rebel majority in arms forfeited every right which belonged to them, whether as citizens of Virginia or citizens of the United States, by their treason. The traitor can never again exercise political rights in Virginia but by the will of the people of the United States.
I repudiate, as the gentleman does, this miserable contrivance here in Richmond called the Legislature of Virginia, for the simple reason that is has never been sustained and is not now sustained by a sufficient number of loyal men to constitute a State; but when a sufficient number of loyal citizens do petition in what is known as Virginia for recognition as a State, I say no man on this floor has a right to deny to them the right of local legislation, simply because, in the language of your Declaration, "the legislative powers of the people are incapable of annihilation" save by their own crime. Surely the traitor majority, by their great treason, cannot annihilate the right of the loyal people to local self- government.
That right sacred to the people of every State cannot be forfeited save by the act, the criminal act of the body of the community. So long as a sufficient number of the citizens of an insurgent State remain loyal to the Constitution to constitute a State, the Congress may and ought to recognize their right of self- government.
West Virginia is a State. She has consented to the annexation of the counties of Berkeley and Jefferson. The people of those counties have consented to it. It remains for Congress to consent to it. I care not for the consent of Virginia, because she has no organized State government. West Virginia is a State. Her admission by the act of Congress into the Union concludes every department of the Government, so long as she is faithful to the Constitution and laws of the Union. There is no department of the Government to-day which may lawfully dispute the rights of West Virginia as a State of the Union.
Sir, permit me to say that the Federal judicial officer who officially questions and denies the authority of West Virginia as a State of the Union, so long as the present action of Congress stands unrepealed by the sovereign power of the American people, simply subjects himself, in my opinion, to impeachment, and ought to be driven in contempt and disgrace from his office. For the annexation of these counties to West Virginia nobody's consent is needed except the consent of the people thereof and of the State of West Virginia; and that consent has been given.
It only remains, therefore, for the people of the United States to say whether the people in the counties of Jefferson and Berkeley shall be transferred to the jurisdiction of West Virginia. The preamble, as I remarked before, has nothing to do with the purpose of the bill, and I shall vote to strike it out. What remains is perfectly intelligible. Congress thereby consents and declares that the two counties shall be transferred to West Virginia. I call for the previous question.
The previous question was seconded, and the main question ordered.
. . .
The joint resolution was ordered to be engrossed and read a third time; and being engrossed, it was accordingly read the third time.
Mr. ROGERS. I offered an amendment to the resolution, on which the question has not been taken.
The SPEAKER. The gentleman gave notice that he had an amendment to offer, but he did not offer it.
Mr. ROGERS. I ask leave to offer it now.
The SPEAKER. It can only be received by unanimous consent.
Objection was made.
Mr. LAWRENCE, of Ohio, demanded the previous question on the passage of the joint resolution.
The previous question was seconded, and the main question ordered.
Mr. ELDRIDGE demanded the yeas and nays on the passage of the joint resolution, and tellers on the yeas and nays.
Tellers were ordered; and Messrs. ELDRIDGE, and LAWRENCE of Ohio, were appointed.
The House divided, and the tellers reported - ayes twenty-seven.
So the yeas and nays were ordered.
The question was then taken on the passage of the joint resolution; and it was decided in the affirmative - yeas 112, nays 24, not voting 46; as follows:
YEAS - Messrs. Alley, Allison, Ames, Anderson, Delos R. Ashley, James M. Ashley, Baldwin, Banks, Barker, Baxter, Beaman, Benjamin, Bidwell, Bingham, Blaine, Boutwell, Brandegee, Bromwell, Broomall, Buckland, Bundy, Sidney Clarke, Cobb, Cook, Cullom, Darling, Defrees, Deming, Dixon, Donnelly, Driggs, Dumont, Eckley, Eliot, Farnsworth, Farquhar, Ferry, Garfield, Grinnell, Hale, Abner C. Harding, Hayes, Henderson, Higby, Hill, Holmes, Hooper, Hotchkiss, Asahel W. Hubbard, Chester D. Hubbard, Demas Hubbard, John H. Hubbard, James R. Hubbell, Ingersoll, Jenckes, Julian, Kasson, Kelley, Kelso, Ketcham, Laflin, Latham, William Lawrence, Longyear, Marston, Marvin, McClurg, McKee, McRuer, Mercur, Miller, Moorhead, Morrill, Morris, Moulton, Myers, Newell, O'Neill, Orth, Paine, Patterson, Perham, Pike, Pomeroy, Price, William H. Randall, John H. Rice, Rollins, Sawyer, Schenck, Scofield, Shellabarger, Sloan, Spalding, Starr, Stevens, Thayer, Trowbridge, Upson, Van Aernam, Burt Van Horn, Robert T. Van Horn, Warner, Elihu B. Washburne, Welker, Wentworth, Whaley, Williams, James F. Wilson, Stephen F. Wilson, Windom, and Woodbridge - 112.
NAYS - Messrs. Baker, Boyer, Brooks, Chanler, Dawson, Eldridge, Finck, Glossbrenner, Aaron Harding, Hogan, James M. Humphrey, Kerr, Le Blond, Marshall, Niblack, Ritter, Rogers, Ross, Shanklin, Strouse, Taber, Taylor, Thornton, and Trimble - 24.
NOT VOTING - Messrs. Ancona, Bergen, Blow, Reader W. Clarke, Conkling, Culver, Davis, Dawes, Delano, Denison, Eggleston, Goodyear, Grider, Griswold, Harris, Hart, Edwin N. Hubbell, Hulburd, James Humphrey, Johnson, Jones, Kuykendall, George V. Lawrence, Loan, Lynch, McCullough, McIndoe, Nicholson, Noell, Phelps, Plants, Radford, Samuel J. Randall, Raymond, Alexander H. Rice, Rousseau, Sitgreaves, Smith, Stilwell, Francis Thomas, John L. Thomas, Voorhees, Ward, William B. Washburn, Winfield, and Wright - 46.
So the joint resolution was passed.
Mr. KELLEY. I move to amend the title so as to read as follows: "Joint resolution giving the consent of Congress to the transfer of the counties of Berkeley and Jefferson to the State of West Virginia." And on that I demand the previous question.
The previous question was seconded, and the main question ordered; and under the operation thereof the motion was agreed to.
Mr. LAWRENCE, of Ohio. I move to reconsider the vote by which the joint resolution was passed, and to lay that motion on the table.
The latter motion was agreed to.
. . .
[Senate, March 6, 1866]
Mr. CLARK. I was about to ask the Senate to proceed to the consideration of the House joint resolution giving the consent of Congress to the annexation of the two counties of Jefferson and Berkeley to the State of West Virginia, which is a matter of some importance; as I understand there may be a conflict of jurisdiction in the two counties, and it is desirable that the question should be settled by Congress giving its consent. If the Senator from California is not so desirous of pressing his bill at the present time as to interfere with it, I should like to call up that resolution.
Mr. CONNESS. It is of great consequence that we get the action of the Senate on the measure to which I have called attention; and if the Senator from New Hampshire will allow it to be considered, I shall be much obliged to him.
Mr. CLARK. I am not disposed to antagonize one measure with another so as to obstruct public business; but I think this joint resolution will take but a very few minutes.
Mr. WILLEY. I have received, within a few days past, a letter from the Governor of West Virginia urging as speedy action as may be consistent with the convenience of the Senate on the question referred to by the honorable Senator from New Hampshire, and informing me that he anticipates some disagreeable conflicts of State authority shortly, unless speedy action is taken in the premises. I should be exceedingly glad to have action now.
Mr. CONNESS. I withdraw my motion.
Mr. CLARK. I move to take up House joint resolution No. 17, to which I have alluded. It will not take long.
Mr. HENDRICKS. I suggest to the Senator from New Hampshire, who has charge of that resolution, that he assign an early day for its consideration. I have not had an opportunity to examine it, and it is rather an important question; one that ought to be investigated and discussed, that we may fully understand it. I do not think very many Senators have examined the subject thoroughly as yet.
Mr. CLARK. And I suppose they will not as long as it lies under their desks and is not called up. I propose to call it up, and then if it should lead to serious discussion, or there should be a necessity for delay, it can be laid over; but I think it had better be called up and attended to. I insist on my motion.
The motion was agreed to; and the joint resolution (H. R. No. 17) giving the consent of Congress to the transfer of the counties of Berkeley and Jefferson to the State of West Virginia, was considered as in Committee of the Whole, the question being on the amendment reported by the Committee on the Judiciary to strike out all of the resolution after the resolving clause, in these words:
That the consent of Congress is hereby given to the transfer of the counties of Berkeley and Jefferson from Virginia to the State of West Virginia; that the jurisdiction exercised over them by the State of West Virginia by, and is hereby, approved and confirmed, and that said counties are, and henceforth be, part of the State of West Virginia.
And in lieu thereof to insert these words:
That Congress hereby recognized the transfer of the counties of Berkeley and Jefferson from the State of Virginia to West Virginia, and assents thereto.
Mr. CLARK. I move to amend the amendment by striking out "assents" and inserting "consents" which is the word of the Constitution.
The amendment to the amendment was agreed to.
Mr. RIDDLE. As the amendment has been amended, I doubt whether the motion I desire to make is in order. I desire to offer a proviso to the amendment of the committee.
The PRESIDENT pro tempore. That is in order.
Mr. RIDDLE. I offer this proviso:
Provided, The question of the annexation of the said counties to West Virginia shall be referred to a vote of the people of each of them at an election to be held on the second Tuesday in May next by commissioners to be appointed by the Governor of Virginia, and a majority of the legal voters of each of the said counties under the laws of Virginia shall be found in favor of such annexation.
Mr. CLARK. I desire to say that that has already been done in both of the counties. The people have voted on the question, and the result has been in favor of annexation to the State of West Virginia.
Mr. RIDDLE. If the Senator from New Hampshire will pardon me, I will state that out of sixteen hundred voters but fifty voted in Jefferson county on that proposition. There are now thirteen hundred voters in the county since the abandonment of the armory, and twelve hundred and fifty of those thirteen hundred voters have asked that this proposition be presented to the Senate, and their remonstrance is before the body.
Mr. CLARK. I understand it very well, I think, Mr. President. It does not appear from any evidence that has been taken that all the people in those counties might not have voted who wished to vote at the time the vote was taken; but there is no doubt a portion of their people were in the rebel army fighting against the country and the interests of the country and of those counties, and therefore did not vote. Now, when they have got back from their wicked work, they ask that a vote may be taken that they may defeat this annexation. For one, I am not disposed to delay for the purpose of taking the votes of these rebels, nor to give them an opportunity of voting.
Mr. WILLEY. The Senators will allow me to suggest here that under the laws of West Virginia they cannot vote.
Mr. RIDDLE. I will merely say that I lived in Jefferson county during the last year longer than the Senators from West Virginia have lived there during their whole lives, and that I have talked to the people of that county. I admit, as the Senator from New Hampshire has said, that a great many of the people of Jefferson county were in the southern army, but a great many of them were in the other army. They went into the southern army nolens volens. Under the southern conscription act they were compelled to go there, as the Senator would have been if he had been there and under age. These men ought to be heard; and if you refuse them the right to be heard, I think you are doing an injustice to the people. I am not speaking for myself, for I know that if my property in Jefferson county were in West Virginia, I should be taxed on it much less than I am in the State of Virginia; but to do justice to the people of Jefferson and Berkeley counties, I want them to have a fair opportunity of saying where they will go. I do not care who may appoint the commissioners for which my amendment provides; I would let the Governor of West Virginia appoint them; all I ask is that the people may be heard and their feelings respected. I want the people to be heard, and if you deny it you deny the wishes of twelve hundred and fifty out of thirteen hundred voters.
Mr. CLARK. I have no particular desire to hear from rebels, nor any particular desire that they shall be heard. It may be true, as the Senator says, that a part of this people were forced into the rebel army. I have no disposition to deny it; but this I say to him, if they were so forced, I want to put them into a State where the jurisdiction hereafter will be sufficient to protect them; where they shall never be so forced again.
Mr. RIDDLE. They have no such disposition now.
Mr. CLARK. I do not know that there is any such disposition about now; but there is a conflict of jurisdiction in regard to these two counties which makes it necessary to remove all doubt, that Congress shall give its consent, and I hope Congress will give its consent, and that the loyal people of these two counties who have voted that they would be annexed to West Virginia shall have the opportunity of being annexed there, maugre the rebels who have come back. I am disposed to accommodate the loyal people and not wait a great while for the accommodation of the rebels who have returned. They may be thankful if they are permitted to live under the Government which they attempted to destroy, without endeavoring to control it. It is all they deserve. I hope the resolution will pass.
Mr. RIDDLE. The map which I have before me shows what a shaped State West Virginia will be with the annexation of the counties of Berkeley and Jefferson to it. I believe somewhat in geographical shapes and geographical lines. This annexation will extend the State of West Virginia down to the Potomac, bringing it into a narrow angle and cutting it off from the other States. The blue lines of the map before me designate the boundaries of West Virginia. Now, it is proposed to extend its limits and to take in the little angle in which Jefferson and Berkeley counties are included, the result of which would be to make it the most disproportioned State in the Union.
Mr. POMEROY. I rather like the amendment of the Senator from Delaware, but I have examined it and find it to be a little faulty in one respect.
Mr. RIDDLE. I will accept any amendment.
Mr. POMEROY. If the Senator from Delaware will accept an amendment, I will propose one; and that is that the question be submitted to the people of the two counties without regard to color. All the people there have an interest in it. It is as much the interest of one class an another. As the Senator suggests, it is not in order for me to move this amendment, but as he says he will accept it, it can be incorporated with his.
Mr. RIDDLE. I beg to be excused. I know the Senators from West Virginia would not agree to that.
The PRESIDENT pro tempore. The question is on the amendment of the Senator from Delaware to the amendment of the committee.
Mr. WADE. Let it be read.
The Secretary read the amendment to the amendment.
Mr. HOWE. I understood that the amendment suggested by the Senator from Kansas was accepted by the Senator from Delaware.
Mr. POMEROY. The Senator from Delaware promised that he would accept it, but after hearing what it said he would not.
Mr. CLARK. Then I hope my friend from Kansas will not press his amendment to the amendment, but will let us take a vote upon the proposition of the committee, and agree to it.
Mr. POMEROY. I think we had better perfect the amendment first; we can reject it afterward.
Mr. CLARK. I think we had better not waste much time about it.
Mr. SAULSBURY. I have been requested by some gentlemen of Virginia when this bill should come before the Senate to give it some attention; but I suppose that this consent of the Congress will be given to an act which, if it ever was legal, has been repealed by the State of Virginia before the consent of Congress was asked. I think I could demonstrate, if I thought is was of any use to go into the argument, that there never was any consent given by the Legislature of Virginia to what has been done by West Virginia or what was done by the people of those counties. On the day that the election was required to be held by the law of Virginia on which the consent is based, as I understand, there were only two voting places at which any person could vote, and they were on the line of the Potomac and while these two counties were in the possession of the military power of the Government. The act of Virginia required an election to be opened at the respective voting places in these two counties, and made its consent dependent upon the fact that a majority of the people at such a vote to be held should vote for the transfer; that is should vote at the different voting places in the two counties.
There are other questions, though, connected with the matter of a more vital and fundamental character, grave, serious, constitutional questions, arising in this case; and yet I cannot consent to take up the time of the Senate in arguing a cause which I know is lost to the people of those two counties. Sir, Virginia is a noble State. The greatest and best men that have ever adorned the council chambers of this nation or reflected honor upon the council chambers of any nation had their birth and have lived in Virginia; and I do not wonder that the people of Berkeley and Jefferson counties, when it is proposed to take them away from the great State of Virginia and to annex them to a new State which has grown out, if not the exigencies, of the passions of the war, should be opposed to such transfer and would like to remain with the old State. If I thought that I could say a word which would do them good, or which could secure them, not this privilege, but this right, of remaining in the old State where their fathers lived, and in the prosperity of which and in the renown of which they feel a personal pride, I would willingly stand here for an hour to say something in their behalf. But no, although every man in Jefferson and Berkeley be opposed to this transfer, the transfer is to be made, and on what ground? Because the voice of rebels in such cases is not to be heard, and nobody but loyal men are to be heard!
Mr. President, we have a wholesale way of deciding upon treason and crime. Under the Constitution of the United States and the laws of the land there is a judicial mode of ascertaining who is a traitor and who has committed crime, and there is only one mode in which you or I or anybody can ascertain whether a man is a traitor, and that is by presentment by a grand jury, conviction by a petit jury, judgment of a court of competent jurisdiction; and when the evidence comes before me in this Chamber, or comes before me as a private citizen, comes before me in any capacity whatever, I can decide upon the criminality of no man, and I cannot ascertain his guilt in any other way than by the production of the record of his trail and conviction. And yet, sir, on the bare assumption that a majority of the people of these two counties have been guilty of treason, the highest crime known to the law, and have justly forfeited their lives, we are to ascertain their guilt, not as the Constitution and laws of the land say it shall be ascertained, but by surmise, by conception. I will never, in the private relations of life or in any public capacity which I fill, determine the criminality of any one in that way, and I protest now against whole communities and whole people being thus charged with treason and with crime when there is no evidence of a legal character that there is a man in Jefferson or Berkeley that is guilty of treason. Till that evidence is furnished, let the people residing in those two counties have a voice in determining their future situation and their future relations to these two States. If a majority of the people there wish to go to West Virginia let them go; if they wish to remain in Virginia let them remain.
I make these remarks with no feeling of hostility to West Virginia. I wish her all the prosperity which now is open before her in her career as a State; but I do say that in a question of this kind, where not only the property of citizens is to be affected, but where their homes, everything that is dear to them, their personal feeling, their personal interest, their political association is concerned, these people ought to have a right to say whether there shall be any such transfer. As I understand the facts as presented to me, they have never had any such opportunity. But at two places, and two only, in Jefferson county were the polls opened - at Shepherdstown and Harper's Ferry - and about one hundred votes cast out of the whole population of Jefferson county. But, sir opposition can avail nothing.
Mr. WILLEY. Mr. President, I do not desire to go into a full investigation of this question. It was very fully investigated in the other House; a very full and able and exact report was made by a member of the Judiciary Committee in the other House, and the question was argued at length, and decided with very great unanimity in favor of the consent being given.
The PRESIDENT pro tempore. The Chair will suggest that allusion to proceedings in the other House is not in order here.
Mr. WILLEY. Well, sir, I merely allude to it not to bring them into the proceedings here, but simply to say that there is a report here from the other House laid upon our tables. I suppose it is in order to refer to that, and that is the only reference that I make. That report shows that the matter was fully investigated.
I do not wish to get into a controversy with my friend from Delaware in regard to the facts in this case. I will content myself by saying that I have not a doubt to-day that there is not a loyal man, as we used to understand that term, in the county of Jefferson that is not in favor of remaining where Jefferson county is now supposed to be, a part of West Virginia. In the county of Berkeley it cannot be controverted that there is a very large majority of the people there, loyal and disloyal, taking the aggregate of all the people of that county, in favor of remaining with West Virginia, and I am disposed to believe that to- day since certain recent action on the part of the West Virginia Legislature repealing a law affecting the rights of disloyal persons to prosecute suits in the courts, if the vote were taken in Jefferson county there would probably be a majority in that county for remaining in West Virginia. The disability of which they complained so grievously has been removed by legislative action in West Virginia.
Now, sir, what are some of the facts? These counties for some years past have been with West Virginia after fair action by the Legislature of both States. Polls were opened in both the counties, permission to hold the election having been granted by the Legislature of Virginia; the election was held in pursuance of an act allowing it to be held; the votes were duly certified by the Governor of Virginia to the Governor of West Virginia, and the Legislature of West Virginia, acting upon the proceedings, accepted these counties. The counties have gone on under these circumstances to organize under the very different system of county police and judicial proceeding and recording of deeds, &c., provided in the constitution of West Virginia from that which originally existed in these counties when they were under the jurisdiction of Virginia. Deeds have been recorded; various things have been done under our new constitutional provisions, and under our new legislation in West Virginia, enacted in pursuance of our constitution; right have accrued under this legislation. Now, if they are sent back to old Virginia, the result will be confusion in title papers and in the decrees of courts; and a great many mischiefs that will readily occur to every Senator under this existing state of circumstances must necessarily ensue.
The loyal people are satisfied where they are. The election was openly held in these counties. Every man that wanted to vote could have voted. The men who are petitioning to-day that a vote be taken again were not in the counties at the time that election was held; but where were they? They were in the armies of the alleged confederacy. They were fighting against the loyal men of these counties. They were not at home. Some of them, the principals, perhaps, in this matter, held seats in the Legislature of Virginia under the authority of the confederate government. I trust it may be the pleasure of the Senate to let these people remain where they are.
As to the form of the State, it is a little zigzag; but it was the desire of this people themselves, principally because these counties lie upon the Baltimore and Ohio railroad, which railroad runs out into our State, and therefore connects them directly with the interior part of the State commercially, and for every other convenience; whereas they are not connected by railroad with east Virginia, and in order to get to the capital of that State they would have to do as we have from all over West Virginia, come by Baltimore and Washington city in order to get to Richmond.
Mr. RIDDLE. I do not desire to prolong the discussion, but my friend from West Virginia who has just addressed the Senate was the first to convince me that Jefferson and Berkeley counties should not be in West Virginia. Now I quote Willey against Willey. On the 1st day of July, 1862, that Senator said:
"I confess that I was infinitely surprised when the committee reported to the Senate a bill including fifteen counties within the valley of Virginia in the proposed new State. What are the facts on this subject? The people of northwestern Virginia had looked over all this ground; they had considered where the line of demarkation should go; they had considered it well; and they fixed the Alleghany mountains as the natural barrier. They were willing to agree to that; not only were those mountains the natural barrier, because they divided the commercial, industrial, and social relations of the State, but they were the natural barrier between the desire of the people who wished to be erected into a new State, and the desire of those people who were opposed to being included within the new State."
"Sir, I speak of what I know, I speak of what I am fully advised by hundreds of letters received during the last ten days, that the people of northwestern Virginia are utterly and irreconcilably opposed to any connection with these people in the valley. They are opposed to it because they have no commercial relations with them; they have no industrial interests in common; they are disconnected by impassable mountain barriers. They have no close social relations with them. They are different in interests, different in social habits, different in feeling, different in desires in this respect, and I venture the assertion that out of the one hundred and forty thousand inhabitants proposed to be included in the new State from the counties of the valley, there are not five thousand that desire any union with us. As was forcibly remarked by one of my colleagues the other day, in reference to this matter, if we were thus united in the same State organization, it would be like tying two cats by the tail; we should be forever fighting each other. They are utterly and irreconcilably hostile in social relations and hostile in feeling." - Congressional Globe, second session Thirty-Seventh Congress, part 4, p. 3037.
These were the sentiments of my honorable friend from West Virginia in 1862.
Mr. WILLEY. They are my sentiments still. If my friend from Delaware would get the map and see where these fifteen counties lie, he would see that his own argument would be answered. These two counties contain the five thousand people of whom I spoke along the railroad that are connected with us by direct and easy communication, and whom I reserved in my speech. The other thirteen counties lying in the valley are disconnected from us and have no relation with us.
The PRESIDENT pro tempore. The question is on the amendment of the Senator from Delaware to the amendment of the committee.
Mr. GRIMES. Do I understand the Senator from Delaware to withdraw his consent to the amendment suggested by the Senator from Kansas?
Mr. RIDDLE. I never gave my assent to it. I said I would agree to anything; but when I heard what the amendment was, I of course would not agree to it.
The amendment to the amendment was rejected.
The amendment reported by the Committee on the Judiciary was agreed to.
The joint resolution was reported to the Senate as amended, and the amendment was concurred in. The amendment was ordered to be engrossed, and the joint resolution to be read the third time. The joint resolution was read the third time; and on the question of its passage,
Mr. McDOUGALL called for the yeas and nays, and they were ordered.
The question being taken by yeas and nays, resulted - yeas 32, nays 5; as follows:
YEAS - Messrs. Anthony, Brown, Chandler, Clark, Conness, Cragin, Creswell, Dixon, Doolittle, Fessenden, Foster, Grimes, Harris, Howe, Johnson, Kirkwood, Lane of Kansas, Morgan, Morrill, Norton, Poland, Pomeroy, Ramsey, Sherman, Sprague, Stewart, Sumner, Trumbull, Van Winkle, Willey, Wilson, and Yates - 32.
NAYS - Messrs. Davis, Guthrie, McDougall, Riddle, and Saulsbury - 5.
ABSENT - Messrs. Buckalew, Cowan, Foot, Henderson, Hendricks, Howard, Lane of Indiana, Nesmith, Nye, Stockton, Wade, Williams, and Wright - 13.
So the joint resolution was passed.
. . .
[House of Representatives, March 7, 1866]
Mr. LATHAM. I ask unanimous consent to take from the Speaker's table House resolution No. 17, giving the consent of Congress to the transfer of the counties of Berkeley and Jefferson to the State of West Virginia, which as come from the Senate with an amendment.
No objection being made, the joint resolution was taken from the Speaker's table, and the amendment of the Senate was concurred in, as follows:
Strike out all after the enacting clause, and insert in lieu thereof as follows:
That Congress hereby recognizes the transfer of the counties of Berkeley and Jefferson from the State of Virginia to West Virginia, and consents thereto.
Mr. LATHAM. I move to reconsider the vote by which the House concurred in the amendment of the Senate, and to lay that motion on the table.
The latter motion was agreed to.