A boun dary dispute arising out of the Civil War. of Vir ginia from the VI. JURISDICTION LIMITED TO 'CONTROVERSIES IN WHICH STATES ARE 22. State of Virginia v. State of West Virginia. (11 Wallace, 39) 1870. The controversy between Virginia and West Virginia was a boundary dispute of a very peculiar nature, inasmuch as the State of West Virginia came into being because of the war between the States. In February 1861 delegates met in Richmond, the capital of the State, and passed an ordinance of secession, withdrawing the act of accession to the Union of the States passed by a convention of the State, Secession likewise held in Richmond in 1788. But Virginia, like the other States passing ordinances of secession, was not living under the Articles of Confederation but under that more perfect Union drafted by delegates of the States in conference in the summer of 1787 in the city of Philadelphia, and ratified by each of the original thirteen states during the ensuing four years. The association had produced a Union too strong to be broken except by physical force, even as blocks of ice piled together congeal and can only be torn apart by force. The States desiring to maintain the Union and to retain in it every State, proved in the four years' contest, from 1861 to 1865, to be physically stronger than the States which wished to withdraw from the Union, and to form a still more perfect one of their own under the style of the Confederate States of America. Union, 1861. West 1861. Organiza- But to return to Virginia. It appeared that approximately one-third of its tion of people in approximately one-third of its territory in the north-western part of the Virginia, State were opposed to the ordinance of secession. The residents of this region held an assembly of their own in June 1861, claiming to represent the State of Virginia, misrepresented, in their opinion, by the balance of the Commonwealth. They organized themselves as the Government of Virginia, and this new organization was acknowledged by the President and Congress of the United States as the true government of Virginia. The members of this organization were not blind to the fact that they represented but a fraction of the State, albeit in their opinion a very important one, and, desiring to save this portion of the State at least to the Union, the convention ordained, on August 20, 1861, that a new State should be formed and erected out of the territory included within boundaries which they specified and composed of counties which they named. It was felt, however, that the boundaries thus specified were provisional, that the lines might be changed, and that counties other than those named could ally themselves with the new State, should they decide to do so, and send delegates to a subsequent convention which was to meet in Wheeling, November 26, 1861. The delegates met as contemplated by the ordinance on November 26, 1861, made a constitution of West Virginia, and provided that certain enumerated Doubtful counties, 44 in number, 'formerly a part of the State of Virginia,' should be 'inposition cluded in and form a part of the state of West Virginia'. There were certain counties. counties in which the sentiment of the inhabitants appeared to be doubtful, and of two for present purposes it may be said that these counties were apparently or primarily Berkeley and Jefferson. The controversy between the old and the new State turns upon the right to the possession of those counties, West Virginia claiming them. for reasons presently to be stated, and Virginia likewise claiming them because, in the opinion of the mother country, they had not in law ceased to be a part of the Old Dominion. of the As regards these counties, the second article of the constitution of West Virginia provided that the counties of Pendleton, Hardy, Hampshire, and Morgan should be included if their inhabitants voted in favour of the adoption of the proposed constitution 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 Berkeley, Provision Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then for a vote the three last-named counties shall also be included in and form part of the State doubtful of West Virginia '.1 In this connexion it is material to note that the proposed con- counties: stitution of the State contained in a different section the provision that additional territory may be admitted into, and become part of this State, with the consent of the legislature'. The constitution was put to vote the first Thursday of April 1862 The conand was ratified by the inhabitants of the 44 counties specifically named in the stitution ratified, constitution, and by those of Pendleton, Hardy, Hampshire, and Morgan.3 The 1862. condition, therefore, upon which the counties of Berkeley, Jefferson, or Frederick might be included was fulfilled. But it appeared that no vote was had in these three counties, due, as was stated, to the fact that they were then in the possession and control of the armed forces of the Confederate States, of which Virginia was one, and its capital the capital of the Confederacy. The constitution having thus been adopted by the north-western portion of Virginia, henceforth to be known as West Virginia, the legislature of Virginia, meaning thereby the legislature of the portion of the State which was opposed to secession, and which claimed to represent the State of Virginia, passed an act on May 13, 1862, in the name and in behalf of the State of Virginia, consenting to the formation of the State of West Virginia, composed of 48 counties, including therein. Pendleton, Hardy, Hampshire, and Morgan, but not the counties of Berkeley, Jefferson, or Frederick. The members of the legislature intended that these counties should form an integral part of the new State, if they should desire to do so, and therefore, in the second section of the act, consent was given that the counties of Berkeley, Jefferson, and Frederick shall be included in and form part of the State of West Virginia WHENEVER the voters of said counties shall ratify the state constitution, at an election held for the purpose. . .' The legislature likewise directed that the act should be transmitted by the Executive of the State to the Senators and Representatives of Virginia in the Congress of the United States, and that they should endeavour to obtain the assent of Congress to the admission of the State of West Virginia into the more perfect union of the States. On December 31, 1862, the Congress passed the following act : 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 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 1 State of Virginia v. State of West Virginia (11 Wallace, 39, 41). Ibid. (11 Wallace, 39, 42). Ibid. (11 Wallace, 39, 42). State of West Virginia sanc tioned by Congress Dec. 31, 1862. the territory aforesaid, on the 3d of May 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, to wit [the forty-eight counties mentioned in the... Virginia act of May 13, 1862, were here set forth by name, and not including Berkeley or Jefferson]; and whereas, both the convention and legislature aforesaid have requested that the new State should be admitted into the Union, and the constitution aforesaid being republican in form, Congress doth hereby consent that the said forty-eight counties may be formed into a separate and independent State; therefore, Be it enacted, &c., That the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States, in all respects whatsoever, &c.1 The act of Congress, however, contained a proviso that a certain clause of the proposed constitution of the State be stricken, and that in lieu thereof another clause, on the question of slavery, be inserted. The substitute was to be approved by the convention, by a vote of the inhabitants of the new State, and its adoption certified to the President, who was empowered to issue his proclamation stating the fact. Sixty days after such proclamation the act of Congress admitting the State of West Procla- Virginia into the Union area was to come into effect. The clause in question was the State adopted by the convention, ratified by the voters of the State, and the President's of West proclamation issued on April 20, 1863.2 mation of Virginia, April 20, 1863. It will be noted that Berkeley and Jefferson, the two counties in question, and concerning whose possession the controversy between the old and the new State arose, were not included in the constitution of West Virginia nor in the enumeration of the The two counties contained in the act of Congress. They were not, therefore, within the terrinot with- torial jurisdiction of West Virginia when it was admitted as a State. But it is also counties in the new State. to be borne in mind that the clause of the constitution of the State, drafted by the convention, submitted to and ratified by the voters of the State, and approved by the Congress, contained the clause, already quoted, that additional territory may be admitted into, and become part of this State with the consent of the legislature.' Action of The State of West Virginia, however, and the legislature claiming to represent the mino- the State of Virginia were intent upon the admission of Berkeley and Jefferson rity legislature of counties to the new State, if the inhabitants of the counties in an election should Virginia. approve the constitution and request admission to the State; and apparently no obstacles were to be placed in their way by the authorities in the expression of their approval of the constitution and their desire to separate themselves from the old State and to become an integral part of the new. Therefore, on January 31, 1863, the General Assembly of the reorganized' State of Virginia, relying upon the clause of the constitution of West Virginia permitting additional territory to be admitted with the consent of the legislature thereof, enacted that a vote be taken in the county of Berkeley on the fourth Thursday of May, 1863, in order that the people thereof should determine whether that county should become a part of the State of West Virginia. The Governor of Virginia was directed to certify the result of the election, if in his opinion one had been held according to law, under the seal of Virginia to the Governor of the State of West Virginia. The Governor of Virginia was likewise 1 State of Virginia v. State of West Virginia (11 Wallace, 39, 43-4). empowered to postpone the election if, in his opinion, the polls could not safely and properly be opened and the election held in the county on the date specified.1 So much for Berkeley. On February 4, 1863, an act was passed by the same General Assembly of Virginia to allow an election in other counties, among them Frederick and Jefferson, 'or either of them', in order that the people thereof should vote for annexation or against annexation'. The consent of the Assembly was given to the annexation in the event that a majority of the inhabitants should declare in favour thereof, and it was further provided, that the legislature of the State of West Virginia should likewise consent. The election was to take place, as under the previous act, on the fourth Thursday of May, 1863.2 counties The result of the plebiscitum was never in doubt, and the Governor of the State The of Virginia duly certified, under the seal of the State, that an election had been held vote for in the two counties and that a majority of the inhabitants thereof had voted for West incorporation into the State of West Virginia. And the latter State, in accordance Virginia. with the clause of the constitution permitting it to increase its territory, extended its jurisdiction over the counties of Berkeley and of Jefferson.3 fer, 1865. Congress recog nizes the transfer of the counties, 1866. The consent given by Virginia to all of these transactions was the consent of the legislature and of the government sitting in West Virginia and claiming to represent the State. It was not the consent of the legislature and of the government sitting in Richmond, and likewise claiming to represent the State. Each of these bodies spoke, as it will be observed, a different language. On the collapse of the Confederacy, upon Lee's surrender at Appomatox on April 9, 1865, the State of Virginia found itself deprived of a large and valuable portion of what it had always considered as its legitimate domain. Within the course of the same year-to be Virginia specific, on December 5, 1865-it repealed each of the acts which the State was repeals the transreputed to have passed concerning the vote to be taken in Berkeley and Jefferson counties and their admission to the State of West Virginia. On the 10th of March, 1866, the Congress of the United States passed a joint resolution recognizing the transfer of the counties of Berkeley and Jefferson and consenting to such transfer.5 We have, thus, the following situation: the State of Virginia passed an ordinance of secession; that a portion of the State now forming West Virginia refused to secede, and organized a government which claimed to be the government of the State. A convention of the people within West Virginia was called, a constitution for the new State drafted, and, in accordance with its provisions, submitted to the people for ratification. It was ratified; the consent of the legislature claiming to represent Virginia was given to these transactions; the Congress of the United States approved the constitution, admitted the State to the Union, and the President of the United States issued his proclamation admitting the State. The legislature claiming to represent the State of Virginia consented to the annexation of Berkeley and Jefferson counties to West Virginia should the majority of their inhabitants vote in favour of it and if the legislature of West Virginia should assent. An election was held, resulting in favour of annexation; the legislature of the State of Virginia gave its assent. Two years after these transactions the old and real State of Virginia repealed the acts imputed to it by virtue whereof Berkeley and Jefferson counties were trans 1 State of Virginia v. State of West Virginia (11 Wallace, 39, 45). 3 Ibid. (11 Wallace, 39, 48). Ibid. (11 Wallace, 39, 48-9). Ibid. (11 Wallace, 39, 46-7). Bill filed by Virginia. Decision of the Court. Jurisdiction ferred to West Virginia, and the Congress of the United States, after the repeal thereof by the State of Virginia, approved the transfer. In this state of things,' to quote the language of the official report: the Commonwealth of Virginia brought her bill in equity against the State of West Virginia in this court on the ground of its original jurisdiction of controversies between States under the Constitution, in which it was alleged that such a controversy had arisen between those States in regard to their boundary, and especially as to the question whether the counties of Berkeley and Jefferson had become part of the State of West Virginia or were part of and within the jurisdiction of the Commonwealth of Virginia; and the prayer of the bill was that it might be established by the decree of this court that those counties were part of the Commonwealth of Virginia, and that the boundary line between the two States should be ascertained, established, and made certain, so as to include the counties mentioned as part of the territory and within the jurisdiction of the State of Virginia. . . . To the bill thus filed the State of West Virginia appeared and put in a general demurrer. It was not denied that West Virginia had from the beginning continued her assent to receive these two counties.1 The facts of this case have been given at some length, because the separation of West Virginia from the honoured Commonwealth bearing that name has resulted in repeated litigation between the States, due to the assumption by West Virginia of an equitable portion of the debt of the parent state before the separation, or, to be more accurate, before the first day of January, 1861, and the failure of West Virginia to take any steps to ascertain the amount of this indebtedness or to take measures to meet it after the amount had been determined by a solemn judgement of the Supreme Court of the United States. The entire course of the litigation, including the present case, shows West Virginia as determined to hold to its territory as it is unwilling to part with its money. In delivering the opinion of the majority of the Court in the first phase of this series of cases, Mr. Justice Miller found it necessary to pass upon and to reaffirm the jurisdiction of the Court, inasmuch as it was questioned by counsel for West Virginia ; as Mr. Justice Miller's statement is in itself a summary, calling attention to the very important fact that Mr. Chief Justice Taney, who had consistently opposed the assumption of jurisdiction in all phases of the Rhode Island cases, later withdrew his opposition, so that the Court was henceforth of one mind on the question of jurisdiction, this portion of the learned Justice's opinion is given in its entirety: The first proposition on which counsel insist, in support of the demurrer is, that this court has no jurisdiction of the case, because it involves the consideration affirmed. of questions purely political; that is to say, that the main question to be decided is the conflicting claims of the two States to the exercise of political jurisdiction and sovereignty over the territory and inhabitants of the two counties which are the subject of dispute. This proposition cannot be sustained without reversing the settled course of decision in this court and overturning the principles on which several well-considered cases have been decided. Without entering into the argument by which those decisions are supported, we shall content ourselves with showing what is the established doctrine of the court. In the case of Rhode Island v. Massachusetts (12 Peters, 724), this question was raised, and Chief Justice Taney dissented from the judgment of the court by which the jurisdiction was affirmed, on the precise ground taken here. The subject is elaborately discussed in the opinion of the court, delivered by Mr. Justice Baldwin, |