and the jurisdiction, we think, satisfactorily sustained. That case, in all important features, was like this. It involved a question of boundary and of the jurisdiction of the States over the territory and people of the disputed region. The bill of Rhode Island denied that she had ever consented to a line run by certain commissioners. The plea of Massachusetts averred that she had consented. A question of fraudulent representation in obtaining certain action of the State of Rhode Island was also made in the pleadings. It is said in that opinion that, 'title, jurisdiction, sovereignty, are (therefore) dependent questions, necessarily settled when boundary is ascertained, which being the line of territory, is the line of power over it, so that great as questions of jurisdiction and sovereignty may be, they depend on facts.' And it is held that as the court has jurisdiction of the question of boundary, the fact that its decision on that subject settles the territorial limits of the jurisdiction of the States, does not defeat the jurisdiction of the court. The next reported case, is that of Missouri v. Iowa (17 Howard, 660), in which the complaint is, that the State of Missouri is unjustly ousted of her jurisdiction, and obstructed from governing a part of her territory on her northern boundary, about ten miles wide, by the State of Iowa, which exercises such jurisdiction, contrary to the rights of the State of Missouri, and in definace of her authority. Although the jurisdictional question is thus broadly stated, no objection on this point was raised, and the opinion which settled the line in dispute, delivered by Judge Catron, declares that it was the unanimous opinion of all the judges of the court. The Chief Justice must, therefore, have abandoned his dissenting doctrine in the previous case. That this is so is made still more clear by the opinion of the court delivered by himself in the case of Florida v. Georgia (17 Howard, 478), in which he says that 'it is settled by repeated decisions, that a question of boundary between States, is within the jurisdiction conferred by the Constitution on this court'. A subsequent expression in that opinion shows that he understood this as including the political question, for he says that a question of boundary between States is necessarily a political question to be settled by compact made by the political departments of the government. . . . But under our form of government a boundary between two States may become a judicial question to be decided by this court'. In the subsequent case of Alabama v. Georgia (23 Howard, 505), all the judges concurred, and no question of the jurisdiction was raised. We consider, therefore, the established doctrine of this court to be, that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated, because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render, affects the territorial limits of the political jurisdiction and sovereignty of the States which are parties to the proceeding.1 After having thus cleared the deck for action in a truly militant if not in a military way, the learned Justice, intent on the business before him, lays down an assumption, states a fact, and reduces the questions before the court for consideration to three and defines them in the following words, which the majority of the court considered to be of fundamental importance : In the further consideration of the question raised by the demurrer we shall proceed upon the ground, which we shall not stop to defend, that the right of West Virginia to jurisdiction over the counties in question, can only be maintained by a valid agreement between the two States on that subject, and that to the validity of such an agreement, the consent of Congress is essential. And we do not deem it necessary in this discussion to inquire whether such an agreement may possess a 1State of Virginia v. State of West Virginia (11 Wallace, 39, 53-5). Three certain binding force between the States that are parties to it, for any purpose, before such consent is obtained. As there seems to be no question, then, that the State of West Virginia, from the time she first proposed, in the constitution under which she became a State, questions to receive these counties, has ever since adhered to, and continued her assent to that proposition, three questions remain to be considered. for decision. The two States agreed to the 1. Did the State of Virginia ever give a consent to this proposition which became obligatory on her? 2. Did the Congress give such consent as rendered the agreement valid? 3. If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State.1 To reach conclusions on the first two of these questions raised by the Court, and justified by the facts of the case, it was necessary to examine the course of action on each of these matters taken by the organization claiming to represent the State of Virginia, by the organization claiming to represent the State of West Virginia, and by the Congress, exercising its right under the Constitution to admit, in accordance with the terms thereof, new States to the rights, the duties, and the benefits of the Union. Inasmuch, however, as each of these courses of action has been, for present purposes, sufficiently stated in the introduction, they need not be referred to again; nor is it necessary to follow the court in this portion of the case, although the conclusion which Mr. Justice Miller reached on behalf of his brethren should be, and therefore is, quoted without comment : Let us pause a moment and consider what is the fair and reasonable inference to be drawn from the actions of the State of Virginia, the Convention of West Virginia, and the Congress of the United States in regard to these counties. The State of Virginia, in the ordinance which originated the formation of the new State, recognized something peculiar in the condition of these two counties, and some others. It gave them the option of sending delegates to the constitutional convention, and gave that convention the option to receive them. For some reason not developed in the legislative history of the matter these counties took no action on the subject. The convention, willing to accept them, and hoping they might still express their wish to come in, made provision in the new constitution that they might do so, and for their place in the legislative bodies, and in the judicial system, and inserted a general proposition for accession of territory to the new State. The State of Virginia, in expressing her satisfaction with the new State and its constitution, and her consent to its formation, by a special section, refers again to the counties of Berkeley, Jefferson, and Frederick, and enacts that whenever they shall, by a majority vote, assent to the constitution of the new State, they may become part thereof; and the legislature sends this statute to Congress with a request that it will admit the new State into the Union. Now, we have here, on two different occasions, the emphatic legislative proposition of Virginia that these counties might become part of West Virginia; and we have the constitution of West Virginia agreeing to accept them and providing for their place in the new-born State. There was one condition, however, imposed by Virginia to her parting with them, and one condition made by West Virginia to her receiving them, and that was the same, namely, the assent of the majority of the votes of the counties to the transfer. It seems to us that here was an agreement between the old State and the new that these counties should become part of the latter, subject to that condition transfer. alone. Up to this time no vote had been taken in these counties; probably none could be taken under any but a hostile government. At all events, the bill alleges that none was taken on the proposition of May, 1862, of the Virginia legislature. If an agreement means the mutual consent of the parties to a given proposition, this was an agreement between these States for the transfer of these counties on the condition named. The condition was one which could be ascertained or carried out at any time; and this was clearly the idea of Virginia when she declared that whenever the voters of said counties should ratify and consent to the constitution they should become part of the State; and her subsequent legislation making special provision for taking the vote on this subject, as shown by the acts of January 31st and February 4th, 1863, is in perfect accord with this idea, and shows her good faith in carrying into effect the agreement.1 con The learned Justice, on behalf of the majority of the Court, asks and answers if Congress Congress consented to this agreement? Congress passed a resolution on March 10, cented. 1866, in which it is specifically stated, 'That Congress hereby recognizes the transfer of the counties of Berkeley and Jefferson from the State of Virginia to West Virginia and consents thereto.' 2 There was no difficulty on this heading, provided that the act of the State of Virginia of December 5, 1865, repealing the various acts consenting to the transfer should be eliminated from consideration, either because the State of Virginia had acted upon the consent so that it was a completed transaction, or because the attempted withdrawal of consent could not affect West Virginia unless it concurred in the withdrawal. This phase of the question was recognized as of importance by the learned Justice, and the majority for which he spoke; but having decided that Congress consented to the agreements, which the majority found to exist, the question was not so fundamental as it was to the three dissenting justices, Messrs. Davis, Clifford, and Field, who held that that consent had been withdrawn by Virginia before Congress acted upon the transfer, and that therefore at that time there was no agreement regarding the transfer which the Congress could act upon. Admitting the consent given by the acts of its legislature before the repeal thereof by the statute of December 5, 1865, Virginia insisted in its bill and by counsel in argument that the condition, upon which the incorporation of the counties of Berkeley and of Jefferson depended, had never been fulfilled, inasmuch as there was to be a vote of the inhabitants of the counties, and that the vote, when taken, should be fair. The majority of the Court, however, refused to go behind the returns and to consider this phase of the question, inasmuch as the Governor of Virginia, that is to say, the governor of the organization claiming to represent Virginia, was authorized to ascertain and to certify the results of the election under the seal of the State of Virginia to the governor of the State of West Virginia. This was done. As to the legal effect of this provision and the action of the Governor of Virginia in accordance with it, the court said: action We are of opinion that the action of the governor is conclusive of the vote as Virginia between the States of Virginia and West Virginia. He was in legal effect the State is bound of Virginia in this matter. In addition to his position as executive head of the State, by the the legislature delegated to him all its own power in the premises. It vested him with of her large control as to the time of taking the vote, and it made his opinion of the result Governor. the condition of final action. It rested of its own accord the whole question on his judgment and in his hands. In a matter where that action was to be the foundation on which another sovereign State was to act-a matter which involved the delicate 1. State of Virginia v. State of West Virginia (11 Wallace, 39, 58-9). Ibid. (11 Wallace, 39, 49). The question drawal question of permanent boundary between the States and jurisdiction over a large population a matter in which she took into her own hands the ascertainment of the fact on which these important propositions were by contract made to depend, she must be bound by what she has done. She can have no right, years after all this has been settled, to come into a court of chancery to charge that her own conduct has been a wrong and a fraud; that her own subordinate agents have misled her governor, and that her solemn act transferring these counties shall be set aside, against the will of the State of West Virginia, and without consulting the wishes of the people of those counties.1 In view of this provision of the law, the action of the governor of Virginia in pursuance of it relieved the majority of the court, for whom Mr. Justice Miller spoke, from the necessity of considering the legal effect of the act of December 5, 1865, by from the which Virginia sought to withdraw the various acts of consent and the legal effect ment of compliance with them; and the judgement of the court therefore was that the therefore demurrer of West Virginia to the bill was sustained and the bill itself dismissed. agree does not arise. The minority of the court, represented by three of its members, dissented from Demurrer the opinion of the majority in one very material respect, which, if justified, would sustained and bill have decided the case in favour of Virginia instead of West Virginia. The dissent diswas limited to the single point, whether Virginia could or could not withdraw its missed. consent by the statute of December 5, 1865, before the consent was given by ConDissenting gress in its act of March 2, 1866. On all other points the minority apparently opinions. agreed with the majority, as Mr. Justice Davis, on behalf of his brethren, Clifford and Field, said: There is no difference of opinion between us in relation to the construction of the provision of the Constitution which affects the question at issue. We all agree that until the consent of Congress is given, there can be no valid compact or agreement between States. And that, although the point of time when Congress may give its consent is not material, yet, when it is given, there must be a reciprocal and concurrent consent of the three parties to the contract. Without this, it is not a completed compact. If, therefore, Virginia withdrew its assent before the consent of Congress was given, there was no compact within the meaning of the Constitution.2 Mr. Justice Davis next takes up and meets the statement of the majority, that the act of Congress admitting West Virginia as a State of the Union was a ratification of the provision of the Constitution of that State admitting the two counties upon their vote in favour of admission. On this point Mr. Justice Davis, speaking for his brethren, said: But, it is maintained in the opinion of the court that Congress did give its consent to the transfer of these counties by Virginia to West Virginia, when it admitted West Virginia into the Union. The argument of the opinion is, that Congress, by admitting the new State, gave its assent to that provision of the new constitution which looked to the acquisition of these counties, and that if the peoples of these counties have since voted to become part of the State of West Virginia, this action is within the consent of Congress. I most respectfully submit that the facts of the case (about which there is no dispute), do not justify the argument which is attempted to be drawn from them. The second section of the first article of the constitution of West Virginia was merely a proposal addressed to the people of two distinct districts, on which they were invited to act. The people of one district (Pendleton, Hardy, Hampshire, and Morgan) 1 State of Virginia v. State of West Virginia (11 Wallace, 39, 62–3). accepted the proposal. The people of the other district (Jefferson, Berkeley, and Frederick) rejected it. In this state of things, the first district became a part of the new State, so far as its constitution could make it so, and the legislature of Virginia included it in its assent, and Congress included it in its admission to the Union. But neither the constitution of West Virginia, nor the assent of the legislature of Virginia, nor the consent of Congress, had any application whatever to the second district. For though the second section of the first article of the new constitution had proposed to include it, the proposal was accompanied with conditions which were not complied with; and when that constitution was presented to Congress for approval, the proposal had already been rejected, and had no significance or effect whatever.1 23. State of Missouri v. State of Kentucky. The case of Missouri v. Kentucky, decided in 1870, was a boundary dispute, A bounbut not of the ordinary kind, and the question raised by the pleadings was as dary disinteresting as it was important, and is as applicable to nations of the society of nations as to states of the American Union. In simplest terms, it involved the question whether the change of channel in the Mississippi, admittedly the boundary between the two States, changed the boundary, that is to say, whether the boundary between the States followed the river in its wanderings, or whether the boundary remained although the river was minded to change its channel. pute turning on the shifting mary of the facts. The possession of a tract of land known as Wolf Island depended upon this Sumquestion, for, in 1820, when Missouri was admitted as a state, with its eastern boundary the middle of the river, Wolf Island lay to the east of the main channel, and therefore within the sovereignty of Kentucky, whereas, at the time of the suit, the main channel of the river was to the east of the island, which was therefore claimed by Missouri as within its sovereign jurisdiction. To determine this question, the two States appeared at the bar of the Supreme Court. The case is thus stated in the official report within the compass of two paragraphs: The state of Missouri brought here, in February, 1869, her original bill against the State of Kentucky, the purpose of the bill being to ascertain and establish, by a decree of this court, the boundary between the two States at a point on the Mississippi River known as Wolf Island, which is about twenty miles below the mouth of the Ohio. The State of Missouri insisted that the island was a part of her territory, while the State of Kentucky asserted the contrary. The bill alleged that both States were bounded at that point by the main channel of the river, and that the island, at the time the boundaries were fixed, was and is on the Missouri side of said channel. The answer stated that Kentucky, formed out of territory originally embraced within the State of Virginia, was admitted into the Union on the 1st day of June, 1792, and that she had always claimed her boundary on the Mississippi to the middle of the river, and Wolf Island to be within her jurisdiction and limits as derived from Virginia; a part of Hickman County, one of the counties of Kentucky, opposite to which it lay, and it denied that the island belonged to Missouri, or that the main channel was on the eastern side of it when the boundaries of the States were fixed.2 1 State of Virginia v. State of West Virginia (11 Wallace, 39, 63-5). |