Mr. ROGERS. By the same meansby which Congress compelled WestVirginia to take avote 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 into the Union as a State. There is no doubt that anybody that has power to carry any not into effect has the inherent right to do everything that by necessary implication goes with it. I7 hold it a wellsettled principle of law that old Virginia had no right to transfer part of her temtory 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 to the laws of the country, whether they want 1 I propose l peopleof each of them at an election to behold on. 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 WestVirginia has put in a section in its organic law that new territory may be admitted by the Legislature. But suppose the organic law of WestVirginia had may e no provision for that, will gent emen on the other side tell me that WestVirginia. would then have had the right to make any such compact, byvirtne of a mere act of her Legislature, any more than the soldiers of Pennsylvania and NewYork would have had a right to vote in the field without a change of the constitutions of those States 7 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 consen. of congress. But. sir, fr 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 WestVirginia, you recognize both WestVirginia and old Virginia asStates, legally constituted States, States dejure, incorporated into this Union. I would like the Gentfrom Pennsylvania, [Mr. Sruvausfi 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 WestVirginia 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 WestVirginia. I refer the House to the report made by the ComElections 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. hat committee decided, without a dissenting voice, that Berkeley and Jetferson counties belonged to old Virginia, and that they were no part of the territory of WestVirginia. The report says: “But the claimant, McKenzie. by his noticeof contest, contends that Berkclcy county, where Kitchen received a large vote and without which he would be in a small minority, was. on the day of election, no pnrt of the 7th congressional district of Virgin. but was at that time a part of West lrKlDla. nn ponscquently not entitled to vote for a Representative in this district.” That report was made on February 8, 1864, about 2 years ago. Let us see what it says further: “Under the 1st of theseacts of the State of Virginia, it does not appearthat anything wasdone by the votersof Berkeley. Jefferson and Frederick, to ratify and assentto the said constitution of WestVirginia. as provided in thatact; nndifnot, of course the not had no effect in transferring the county of Berkeley to WestVirginia.” That committee in their report admit that the constitution of WestVirginia has not been submitted to the vote of the people of Berkeley and Jcfierson 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 2 places, Harpers Ferry and Shepherdstown, which were both under the control of the military; and only about 100 votes were cast out of a vote of 25 orv 2600 votes. The committee say: “If theydidprooeed to ratify and nesent. nstherein required. still neither of these counties is embracedin the act of Congress admitting WestVirginia. passed December 31, 1862.” The ComElections make the same argument that I make now. When that argument was madellzay 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 he pen to agree with honor able gentlemen on the other side of the House I I submit that this is no political question, but a question of jurisdiction between States, which has yet to receive the sanction of the SCOTUS and let us deal with this question as we would with any other lees. 693 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 ComElections proceed to say: "But there is a further objection to this claim of Mr. McKenme. The act of Congress admitting WestVirginia into the Union enumerates the counties of the old State which shall comosethe new one; and Berkeley is not one of them. (ingress has never consentedto the transfer of the county of Berkeley from the one State to the other: and ltllfllli, 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 refusin to admit either of the contestants into this House, the opinion of the very learned and legal Gentlemen of the ComElections, 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 2 years ago, is it not true today? Does not the same principle, which never dies or passes away unless the Government is subverted or overthrown, hold good yct? and the committee go on to say that there were such military operations then being car ried 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 couiities of Berkeley and Jefferson, and let them say whether they want to constitute a part. of the State of WestVirginia or not. Has Congress retroactive action? and is not this a retroactive law, an expostfacto law, one for the purpose of confirming acts upon the part of WestVirginia, in exercising authority outside of her own dominious, which they admit they had no richt to exercise, for they ask Congress to give their legislative sanction for their action, because WestVirginia had no more right to exercise authority over these 2 counties than NewJersey ha to exercise authority over those same counties. Now, sir, I submit that there is no authority (in the part of Congress to ratify this, that the 3 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 wellestablished rule in reference to the construction of contracts; that if A, B, and Ccntract C constitutes an essential party to the contract as much as A and B, and without the concurrence of c in the contract it falls to the ground; and A and B may withdraw from it at an time before C has ratified it. What is a contract? It is, according to the definition given by Blackstone, an agreement between 2 or more parties to do or not to do aparticular thin". lhis is an agreement between parties to oa particular thin, and until the 3 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 tIhfey desire that this transfer shall take place? the theories of the gentlemen upon the other side are correct, WestVirginia no more constitutes a State of the Union than the most remote Territory. It is, as I believe, a serious question whether WestVirginia is a State but am not here to argue that question. 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 herterritory 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 Gentfrom Kentucky, [Mr. SMITH] All agreed to the proposition that these counties could not be transferred to WestVirginia 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 aiming 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 nothin. But that case has no bearing upon this. The Constitution confers no power on Congress to reorganize States, and t ie acts of secession havinn been void from the beginnin, all action basedupon them is equally void. lhe 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. New, sir, what difference does it make what the Executive Depts 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 presient of the U.S. 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 tequestion of reconstruction, because Congress alone has authority to regulate this matter, by virtue of the constitution of the U.S. Hence, I say, 1 do not care what action the Executive Depts may have taken with reference to this question. I do not care what Secretary Chase, or Secretary Stanton, or President Johnson, or the late President, Mr. Lincoln, or any otherperson connected with the executive Dept of the Government, may have done fn reference to this question. It is a matter depending rightly upon the exercise of the sovereign power of the 36 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 voidab 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, NewJersey is interested in it, all the States are interested in it. If a Legislature in NewJersey should consent to the transfer of a large part of that State to the State of NewYork, and the people of the State of NewJerse should turn that legislature out an. but another Legislature in its place to recallt at action, are we to be told that that cannot be done before the consent of Congress had been given to the transfer?Isay 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 prehent the repeal of the acts, before all the necessary parties have consented, and violate that plain rule of law, that a Legislature can passi no act that a subsequent one may not reea. p Accordin 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 WestVirginia has exercised sovereign control by virtue of a contract which cannot be revoked, then there is no necessit to have any act of congress on the subject. f it is complete without congress, then why come here and ask Congress to act on it: If WestVirginia 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 recognize by all the Depts of the Government, that WestVirginia 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 nosnch authority in WestVirginia, she has no sovereign control over these counties. Asl have shown by the decision of the court, she has no power until the consent of Congress has been obtained. Here the hammer fell.]