Controversy Over the Inclusion of
Berkeley and Jefferson Counties
in the State of West Virginia

Senate Miscellaneous Document No. 58,
39th Congress, 1st Session


Against the transfer of the counties of Jefferson and Berkeley to the State of West Virginia.

FEBRUARY 19, 1866 - Ordered to lie on the table and be printed.


The citizens of Jefferson county, Virginia, beg leave to submit the following statement, to accompany their petition to the Congress of the United States, asking relief from certain grievances therein named.

After the passage of the ordinance of secession by the Virginia convention in April, 1861, a convention, composed of delegates chiefly representing the people of the western part of the State, assembled at Wheeling in June of that year, and on the 13th of that month by ordinance deposed the State government then at Richmond. Six days afterwards, viz: on the 19th of June, 1861, the convention, by an ordinance styled "An ordinance for the reorganization of the State government," ordained that "a governor, lieutenant governor and attorney general for the State of Virginia, shall be appointed by this convention, to discharge the duties and exercise the power which pertain to their respective offices by the then existing laws of the State," &c. The legislature of the State, it was also provided, should be composed of "the delegates elected to the general assembly on the 23rd day of May last, (1861,) and the senators entitled, under existing laws, to seats in the next general assembly together with such delegates and senators as may by duly elected under the ordinance of the convention or existing laws to fill vacancies, who shall qualify themselves by taking the oath or affirmation hereinafter set forth." The oath above mentioned is in the following words:

"I swear (or affirm) that I will support the Constitution of the United States, and the laws made in pursuance thereof, as the supreme law of the land, anything in the constitution and laws of the State of Virginia, or in the ordinances of the convention which assembled at Richmond on the 13th of February, 1861, to the contrary notwithstanding; and that I will uphold and defend the government of Virginia as vindicated and restored by the convention which assembled at Wheeling on the 11th day of June, 1861." So that the government of restored Virginia was inaugurated by a convention which assembled at Wheeling in June, 1861, which proceeded to remove the executive officers of the old State and to appoint others, and to organize a legislature from those who, being elected to the general assembly of the State at the regular election in May, 1861, were willing to repair to Wheeling instead of to Richmond, and to take the oath of fidelity to the government of the United States and the restored State of Virginia.

By an ordinance of the same Wheeling convention, passed August 20, 1861, reciting that "whereas it is reported to be the desire of the people inhabiting the counties hereinafter mentioned to be separated from this Commonwealth, and to be created into a separate State, and admitted into the Union of States," it was ordained "that a new States, to be called the State of Kanawha, be formed and created out of the territory included within the following described boundaries." The boundaries are then defined, and the counties embraced within them are then enumerated. In the list of counties thus specifically set forth, neither Jefferson nor Berkeley county is included, but in a subsequent section of the ordinance the convention which was authorized to form the new State was empowered to change the boundaries first described, so as to include both these and other counties. The vote upon the proposition for the new State was submitted to the people of the territory first named, (exclusive of the counties of Jefferson and Berkeley,) on the fourth Thursday of October, 1861, and at the same time delegates were elected to meet in convention, also at Wheeling, on the 26th of November following, should the popular vote adopt the project of the formation of the new State. The new organization was resolved upon and the convention selected to form its constitution assembled at the time and place appointed and proceeded with the work assigned it. The constitution of West Virginia (which name was substituted for that of Kanawha) was accordingly adopted on the 18th of February, 1862, and ratified by a vote of the people, taken on the 3d of April of the same year. This instrument, thus framed, was acceptable to the legislature of restored Virginia, and its consent for the formation and erection of the State of West Virginia was obtained, and a recommendation made for its admission into the Union. The Congress, on the 31st of December, 1862, passed the act of admission, but on conditions set forth in the said act, which provides "that whenever the people of West Virginia shall, through a convention and by a vote to be taken at an election to be held within the limits of said State, at such time as the convention may provide," change its system of gradual into immediate emancipation, and that fact shall be certified "over the hand of the president of the convention," it shall be lawful for the President of the United States to issue his proclamation stating the fact and then this act" (of admission) "shall take effect and be in force from and after sixty days from the date of the proclamation." The changes required having been made, (but whether as indicated by the Congress or not cannot be ascertained,) the President of the United States, by his proclamation of the 20th of April, 1863, declared that the State would become a member of the Union at the expiration of sixty days from the date of his proclamation.

The State thus admitted contains, according to the act of Congress for its admission, forty-eight counties, which are all enumerated, beginning with Hancock and ending with Morgan.

The constitution of West Virginia itself names only forty-four counties as, at the time of its formation, actually composing the State, (any many of which were unrepresented in the convention that framed the constitution of the State,) but by a provision of the first article other counties, by a compliance with certain conditions therein named, should also become part of the territory and be placed under the jurisdiction of the State of West Virginia. This provision will be referred to hereafter. After this brief statement of the origin of the new State, let us at once approach the examination of the interesting question, to which of the two States, Virginia or West Virginia, do the counties of Jefferson and Berkeley properly and legally belong?

That new States may be created within the jurisdiction of old ones seems to be a proposition established by both precedent and authority. The Constitution of the United States, article 4, section 3, holds the following language: "New States may be admitted by the Congress into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any 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." It would seem, then, under the provision of the foregoing section of the Constitution of the United States, that there are three parties to the formation of a new State where it is to be created within the jurisdiction of an old State, viz: the old State; the people of the territory of the proposed new State, and the Congress of the United States. Without and until the consent of all three of these is given, the proposed organization has neither life nor power and is, therefore, without authority to exercise any of the functions which belong to a separate and distinct government.

In the case in hand, then, where a portion of the people of an old State have sought to form a new one, although the consent of the old State (in this instance restored Virginia) was obtained, and a constitution was actually formed and adopted, yet, according to this provision of the Constitution of the United States, the new State (West Virginia) was not entitled to extend its jurisdiction over the territory and people proposed to be embraced by it, until an act of Congress, ratifying the creation of the new State, was obtained. Until that time, there was, in fact, a mere proposition to Congress of a certain number of people, inhabiting a certain territory within the old State of Virginia, to erect themselves into a new State, to be governed, when Congress should have assented to it, by the constitution thus adopted and presented by them. The case is perfectly assimilated to the States of the Union whose custom it is, in framing their new constitutions, to submit them to a vote of the people. The power of adopting or rejecting the new constitution, in that instance, lies with the people to whom it is referred; if adopted, it becomes the organic law of the State from the time of its adoption; but if rejected, it is inoperative, and never was entitled to obedience. In the instance of the organization of a new State within an old one, the ratifying power is with Congress, and the extent of the power is the same.

So that it is manifest that there was no State of West Virginia at all until Congress vitalized it by an exercise of its constitutional power and sanctioned its creation. From that moment, and not until then, was it entitled to be regarded as a separate organization, or empowered to exercise the functions of a separate and distinct State.

But, as if to remove all doubts as to the correctness of this proposition, [t]he convention of restored Virginia, in the very ordinance authorizing the formation of the new State, reserved to itself full and uninterrupted jurisdiction within the limits of the proposed new State, until Congress should admit it into the Union. The 11th section of that ordinance is as follows: " The government of the State of Virginia, as reorganized in June last, shall retain, within the territory of the proposed State undiminished and unimpaired all the powers and authority with which it has been invested, until the proposed State shall be admitted into the Union by the Congress of the United States."

When that act of admission was passed and its terms were in every respect complied with, there is no doubt (all other antecedent proceedings being constitutional and regular) the territory and people composing the State of West Virginia passed from the control and government of Virginia. But what was that territory, and who were those people? By reference to the act of admission we find that, although the counties forming the State of West Virginia are therein specifically enumerated, neither the county of Jefferson nor Berkeley is named, and, so far as that act discloses, they are, therefore, still a part of the State of Virginia. But it is alleged that provision to include them was made in the constitution of West Virginia itself. Let us turn then to that provision and see how far the political relations of these counties have been affected by it. The clause referred to provides that if, at the time at which the constitution was to be submitted to a vote of the people, "a majority of the vote cast 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 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 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 mentioned counties shall also be included in, and form part of, the State of West Virginia." Thus it will be perceived that the connexion of the three last-named counties with West Virginia depended upon certain well-defined conditions, viz: 1st. That Pendleton, Hardy, Hampshire, and Morgan should participate in the election, and by a majority of the votes cast should adopt the constitution of West Virginia, 2d. That they, (Berkeley, Jefferson, and Frederick,) and as a district, should also take part in the election, and by a majority of the votes cast accept the same constitution; and 3d. That they should so vote on the day named for the submission of the constitution to the action of the people. Now it is nowhere pretended that on the day named in the schedule to take the vote alluded to there was any attempt whatever to open polls in these two counties. On the contrary, the day passed in profound silence on the subject, and they were in entire ignorance of the fact that on that day they were expected to pass by their own choice to the jurisdiction of another State.

There was, then, a failure to comply with the terms of the constitution of West Virginia, upon acquiescence in which these counties were to form part of that State, and West Virginia was accordingly admitted into the Union by Congress, without any reference to them whatever. With this view of the subject, which seems to have prevailed in the mind of the authorities of both Virginia and West Virginia, we find, in the future attempts to secure the annexation of these counties, that no allusion has been made to the constitutional provisions of West Virginia. And hence the act of assembly of Virginia, passed November 4, 1863, chapter 78, entitled "An act giving consent to the admission of certain counties into the new State of West Virginia upon certain conditions," the consent proceeded upon the assumption that the jurisdiction of the State of Virginia was, at that date, yet complete over the territory described; and the act of West Virginia of November, 1863, chapter 90, accepting the cession of Jefferson embraced in the above act - there being a separate act in regard to Berkeley did so upon the terms of the Virginia grant in the aforesaid act of 1863, chapter 78. Let us glance for a moment at the provisions of these acts.

The first is the act of the general assembly of Virginia, which provides that "at the general election on the fourth Thursday of May, 1863, it shall be lawful for the voters of the districts composed of Tazewell, Bland, &c., to declare by their votes whether said counties shall be annexed to and become part of the new State of West Virginia;" and after embracing other counties by districts, it proceeds: "also, at the same time, the district composed of the counties of Frederick and Jefferson, or either of them," may "declare by their votes whether the counties of the said last named district shall be annexed to, and become part of, the State of West Virginia;" and the legislature, if a majority in the said counties should be in favor of annexation to West Virginia, resigns all jurisdiction over them, "provided the State of West Virginia shall also consent and agree to the said annexation." That election was only nominally held in Jefferson county.

Now, it is evident from the ceding act of Virginia above referred to, that it was the intention of that State not to part with her jurisdiction over this county unless the consent of its people to that end could be fairly obtained. The third section provides that, "in the event the state of the country will not permit, or from any cause said election for annexation cannot be fairly held on the day aforesaid, it shall be the duty of the governor of this Commonwealth, as soon as such can be safely held, and a full and free expression of the opinion of the people had thereon, to issue his proclamation ordering such election for the purpose aforesaid, and certify the result aforesaid." It is averred that no such election as that contemplated by the act was ever held in Jefferson county. It is true that, at the time specified, there was a nominal submission to a vote of its people of the question of its transfer to West Virginia, but such were the circumstances under which that election was held, that "a full and free expression of the opinion of the people" on the subject committed to them was impossible.

There were no proper and necessary measures provided to hold the election.

Polls were opened at but two precincts - (Shepherdstown and Harper's Ferry) - both on the remote Potomac line of the "county, under the superintendence of commissioners of election, disqualified under the laws of Virginia from occupying said offices.

No commissioners were appointed for the other precincts, or, if appointed, were notified of their appointment.

No means were adopted to give notice to the large mass of the voters of the county of the proposed election, and they were required at it to determine the question of a change in their State relations; and they were, therefore, ignorant of any action affecting the same until many weeks after the said action had taken place.

At the two precincts above designated less than one hundred votes were polled in an aggregate legitimate vote of from 1,700 to 2,000, heretofore cast in the county, and of that small number many were fraudulent and illegal votes, and should therefore have been rejected.

At the time, too, the election was held, this county was intersected by the strictest and most vigilant military lines, that often confined the citizens for whole weeks to their own premises, from which, on no pretext, however urgent, were they permitted to pass. Indeed, such was the disturbed and disquieted condition of the county, from the commencement of the war to its close, that it is well known that there were but two attempts to hold an election by the people, under the auspices of any government, from the fourth Thursday of May, 1861, until long after the surrender of the southern armies. The first was essayed in the mode above described - the result of which was a sufficient commentary upon the impropriety of the effort, and established, beyond dispute, a failure to comply with the terms of the act under which it was directed to be held. The second election, so called, to which reference has been made, was held in the month of October, 1864, for members of the house of delegates of West Virginia, at which two candidates were chosen by a vote about equal to that cast in May, 1863, and, by a singular and significant coincidence, the only precincts where polls were opened on that occasion were the precincts of Shepherdstown and Harper's Ferry.

No "full and free expression of the opinion of the people" for any purpose could have been obtained in Jefferson county, during the whole continuance of the war.

Situated on the border, it presented all the shifting scenes and changes of one constant battle-ground, and its military occupation was the subject of an almost uninterrupted struggle between the contending forces. Provost guards, stragglers, reconnoitring [sic] parties, and roving, predatory bands of armed men, intent upon plunder, even at the cost of arson and murder, preyed upon its citizens, and made it their safety as well as their necessity, to confine themselves to their homes, where their presence was too often required, not only for the preservation of their property, but for the defence of the lives and honor of their families.

The legislature of West Virginia, in the very act accepting the cession of the county, recognized its condition to be such as has been described. The act of November 2, 1863, passed five months after the election to which the subject of the proposed transfer was submitted, in accepting the county, stipulated in its second section, that it "shall be the duty of the governor, so soon as he shall have reason, to believe that an election can be properly held in the said county, to issue his proclamation, directing an election to be held on such day as he shall appoint, at the several places for holding elections therein, for the election of two delegates, an assessor, clerk of the circuit court," &c. The governor, to whose discretion the matter was addressed, did not deem that an election could be properly held until eleven months after the attachment of the county to West Virginia, and even then it was thought prudent not to open polls but at two precincts, and they, as we have seen, on the distant line of the Potomac boundary. Indeed, owing to the difficulties which have been adverted to, there was no full organization of the government of the county until several weeks after the surrender of General Lee's army.

The result of the vote of the 4th Thursday in May, 1863, was, however, returned to Governor Pierpont, by him certified to the governor of West Virginia, and the legislature of that State proceeded by formal act to declare the county to be thenceforward under the jurisdiction of the new State. This act of West Virginia, accepting the county of Jefferson, passed November 2, 1863, chapter 90, recites the act of Virginia, and receives the county upon the terms therein set forth. So that if the county is in West Virginia at all, it is evident it is there by virtue of no constitutional provision but through the vigor of simple acts of assembly. But, since it is plain that it was not admitted into the federal Union as a part of the State of West Virginia, nor in compliance, as is confessed, with any provision contained in its constitution, the acts of assembly, by which it has been attempted to transfer it to that State, are as yet inoperative, needing the concurrence of Congress, and are mere propositions, until such concurrence be obtained, to enlarge the boundaries of West Virginia.

This is nothing more than the case of two States proposing to change their boundaries by compact. This it is admitted can be done, but always and only, with the consent of Congress.

By art. 1, sec. 10 of the Constitution of the United States, we learn that "no State shall, without the consent of Congress, enter into any agreement or compact with another State." No one, it is thought, can doubt that that is precisely what is proposed to be done in the case now under consideration, and that the consent of Congress is, therefore, essentially necessary to its validity; and that until such consent shall be given we are still under the jurisdiction of, and subject to the laws of Virginia. That in such a case the territory proposed to be ceded should remain under the control of the ceding State until the grant is ratified by Congress, is required for both the convenience and safety of the people proposing to change their political or State relations. For the Congress, having the power to confirm, has, by necessary implication, the power to defeat the proposed cession; and should the State, endeavoring to add the new territory, at once establish its government over it by organizing its judiciary, adjudicating cases, collecting taxes, &c., and Congress should refuse its concurrence, the territory and people involved would be remitted to the government of the old State, and all the acts and proceedings of the new State would have been null and void. And yet the State of West Virginia, without the color of law, and in direct opposition to the opinion of the Congress of the United States, heretofore expressed by it, as will be seen hereafter, has assumed to establish its government over Jefferson county, and still continues to exercise jurisdiction therein against the known will and wishes of a large majority of its citizens.

The views and principles herein announced have been abundantly sustained by decisions of the Supreme Court of the United States in cases involving similar questions in other States.

Thus, Massachusetts and Rhode Island exchanged, by legislative action, some parts of their territory, and as in this case, re-adjusted their boundary line; but when their proceedings were brought into the Supreme Court, it refused to sustain them until the consent of Congress was obtained. Hence, by the United States Statutes, 2d session, 35th Congress, page 382, it was enacted; "That the Attorney General is hereby authorized and directed to intervene and represent the United States in the proceedings in equity now pending in the Supreme Court between the Commonwealth of Massachusetts and the State of Rhode Island, and to consent on behalf of the United States to the adjustment of said suit by a conventional line to be agreed upon between the parties and confirmed by a decree of the said court, if, in his judgment, the rights and interests of the United States will not be prejudiced thereby." This was done under the direction of the Supreme Court, so that, although the two States had agreed upon their cessions to each other, the court refused to confirm them unless the Congress of the United States ratified them, which it in point of fact did, by appointing its agent to give or withhold its consent. Thus, also, the cession of Boston Corner by Massachusetts to New York obtained the consent of Congress. We have also the case between Tennessee and Virginia, which presents the following state of facts: all Tennessee was once a part of North Carolina. In 1779 two different lines were run, by different surveyors, between Virginia and North Carolina. One State claimed one boundary, the other State the other boundary. In 1790 North Carolina ceded all that part of her territory now Tennessee, with this disputed line, to the United States, who, by act of Congress, 1st Statutes at Large, 109, accepted the cession. After Tennessee became a State, in 1802, the dispute was settled between Virginia and Tennessee by a line equidistant between the two. In 1803, after this new line was agreed upon between Virginia and Tennessee, North Carolina passed an act to authorize the State of Tennessee, with this new line, to perfect titles to lands within its limits to which North Carolina had reserved some right, but making it expressly subject to the assent of Congress.

In 1806 (29 Statutes at Large, 381) Congress gave that assent in terms so broad that the Supreme Court (3 Wheaton, 537) declared them unrestrictive in their operation, "because nothing short would, give effect to the provisions of the compact." (See also the case of Green vs. Biddle, 8 Wheaton, p. 1.) The compact between North Carolina and Tennessee, fixing the boundary line between them, also had the consent of Congress, (see Poole vs. Heeger, 11 Peters, p. 207,) where the court cite the constitutional prohibition of art. 1, sec. 10, and in speaking of the right of States to fix or alter boundaries, they say that they have such right, "but that its exercise is guarded by a single limitation or restriction, which is the consent of Congress." Curtis, in citing this case in his Digest, p. 92, says: "This power, though it can only be exercised with the consent of Congress, still resides with the several States." Story, in his Commentaries on the Constitution, sections 1402-3, under the chapter entitled "Prohibitions on the States," enumerates "compacts settling the boundaries between States." And lastly, we have the ease of (Florida vs. Georgia, 19 Howard, 478.)

In that case the chief justice, in delivering the opinion of the court, said: "By the 10th sec., art. 1st, 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 negotiations and agreement proceeded to adjust the boundary, any compact between them would have been null and void without the assent of Congress. This provision is evidently 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 others. And the right and duty to protect their interests is vested in the general government."

But in the very matter now in controversy between the States of Virginia and West Virginia, the Congress of the United States, in the contested, election of McKensie vs. Kitchen, has determined that Jefferson and Berkeley counties are no part of the State of West Virginia, and cannot become such until an act assenting to the terms of cession shall have been first passed by Congress.

The petitioners, as citizens of Jefferson county, from these considerations and others, think that there can be no diversity of opinion as to the necessity of an act of the Congress of the United States ratifying the proposed transfer of the counties concerned, before such transfer can be validly made. Should, therefore, the authorities of West Virginia, at the coming session of the national legislature, appeal to that body to confirm their acquisition of the valuable territory involved, in view of the meagre vote by which it has been shown the project was sustained in this county, they confidently hope and believe that, as that honorable body, in the admission of the new State itself, saw proper to prescribe conditions upon which it could enter the Union, requiring even an amendment of its organic law; its high sense of justice will not fail to perceive the equity of the suggestion which they now venture to make, viz: that it will withhold that consent required to be given by it to any agreement or compact of one State with another, or, if it should be deemed advisable, in order to obtain beyond doubt the real desires of the people of the county on the subject, that the question should again be referred back to the people of the county for their determination, made as would be their right in such case under the laws of the State of Virginia.

The undersigned, citizens of Charlestown, Jefferson county, Virginia, and of its immediate vicinity, make oath, in due form of law, that the facts stated in the above statement appended, are all of them true, to the best of our knowledge and belief; that we were not in the army or service of any kind, of the late so-called confederate States, but were at home during the existence of the war, and especially at the date of the election referred to in the statement, viz: the fourth Thursday of May, 1863, and we know, beyond any doubt, that no such election was held at either of the two places of voting at Charlestown, and none at either of those at Kabletown and and [sic] Smithfield, and that no notice of such intent election was ever heard of by us, and we are fully satisfied that none was ever given.


Sworn to before me, by each of the gentlemen whose names are signed to the above, on this 14th day of February, 1866.

Justice of the Peace.

Government and Politics