Virginia v. West Virginia (1870)

The citation for this case is 78 US (11 Wall.) 39.

This case concerned the disputed boundary between Virginia and the relatively new state of West Virginia, which had been created from the northwestern counties of Virginia in 1863. The Court begins by recounting the process by which the loyal government of Virginia gave its consent for the state’s partition and the US Congress recognized the new state:

“A convention professing to represent the State of Virginia which assembled in Richmond in February, 1861, attempted by a so-called “ordinance of secession” to separate that state from the Union, and, combined with certain other Southern states, to accomplish that separation by arms. The people of the northwestern part of the state, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the federal Union. The idea of a separate state government soon developed itself, and an organic convention of the State of Virginia, which in June, 1861, organized the state on loyal principles — ‘the Pierpont government’ — and which new organization was acknowledged by the President and Congress of the United States as the true state government of Virginia — passed August 20, 1861, an ordinance by which they ordained that a new state be formed and erected out of the territory included within certain boundaries (set forth) including within those boundaries of the proposed new state the counties of &c. [thirty-nine counties being named]. These counties did not include as within the proposed state the Counties of either Greenbrier, Pocahontas, Hampshire, Hardy, Morgan, Berkeley, or Jefferson, but the third section of the ordinance enacted that the convention might change the boundaries described in the first section of the ordinance so as to include within the proposed state the Counties of Greenbrier and Pocahontas, or either of them, and also the other counties just above named, or either of them, “and also all such other counties as lie contiguous to the said boundaries or to the counties named,” if the said counties to be added, or either of them, by a majority of the votes given &c., should declare their wish to form part of the proposed state and should elect delegates to the said convention &c. The name of the new state as ordained by the ordinance was Kanawha. The convention provided for by the ordinance met in Wheeling, November 26, 1861, and made a ‘Constitution of West Virginia.’ Certain counties named, forty-four in number, ‘formerly part of the State of Virginia,’ it was ordained should be ‘included in and form part of the State of West Virginia.’ No one of the Counties of Pendleton, Hardy, Hampshire, Morgan, Berkeley, or Jefferson was among these forty-four.” [78 US 39, 40-41] The Court’s decision reproduces the act that gave Virginia’s consent as well as the Act of Congress which admitted West Virginia as a state. It also provided the acts giving Virginia’s consent for adding Berkeley and other counties to West Virginia.

On December 5, 1865 the Presidential Reconstruction government of Virginia passed an act that repealed Virginia’s consent to give up Berkeley and Jefferson Counties to West Virginia. Congress, however, passed a joint resolution on March 10, 1866 giving its consent to the transfer of Berkeley and Jefferson Counties to West Virginia.

Justice Samuel Miller wrote the Court’s opinion. In it, he wrote, “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 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 reversal 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, 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 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.” [78 US 39, 53-54] He went on to refer to other cases: Missouri v. Iowa, Florida v. Georgia, and Alabama v. Georgia.

Justice Miller then says, “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. 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 certain binding force between the states that are parties to it, for any purpose, before such consent is obtained.” [78 US 39, 55]

Justice Miller proposes three questions to consider:

“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.” [78 US 39, 56]

He traced the legislative history of West Virginia’s admission and determined, “It is thus seen that in the very first step to organize the new state, the old State of Virginia recognized the peculiar condition of the two counties now in question, and provided that either of them should become part of the new state upon the majority of the votes polled being found to be in favor of that proposition.” [78 US 39, 56] He continues, “It is charged that no fair vote was taken, but no act of unfairness is alleged. That no opportunity was afforded for a fair vote. That the governor was misled and deceived by the fraud of those who made him believe so. This is the substance of what is alleged. No one is charged specifically with the fraud. No particular act of fraud is stated. The governor is impliedly said to have acted in good faith. No charge of any kind of moral or legal wrong is made against the defendant, the State of West Virginia. But, waiving these defects in the bill, we are of opinion that the action of the governor is conclusive of the vote as between the States of Virginia and West Virginia. He was, in legal effect, the State of Virginia in this matter. In addition to his position as executive head of the state, the legislature delegated to him all its own power in the premises. It vested him with large control as to the time of taking the vote, and it made his opinion of the result 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 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 had 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. This view of the subject renders it unnecessary to inquire into the effect of the act of 1865 withdrawing the consent of the State of Virginia, or the act of Congress of 1866 giving consent, after the attempt of that state to withdraw hers.” [78 US 39, 62-63]

The upshot of the ruling was that Berkeley and Jefferson Counties remained part of West Virginia. This decision, while not directly addressing the constitutionality of West Virginia’s admission to the Union, nevertheless implicitly recognized West Virginia’s admission as being constitutional [see the discussion here]. The Court had the opportunity to declare it to be unconstitutional and thus invalidate the transfer of Berkeley and Jefferson Counties, and it did not take that opportunity.

This wasn’t the last case between Virginia and West Virginia. In 1907 would be the first of nine cases regarding the payment of debts between Virginia and West Virginia, including this one from 1910.

West Virginia’s constitutionality has been challenged in various scholarly writings ever since. See here and here, for example. None of that changes the fact that West Virginia was formed in accordance with the form required by the Constitution and the Supreme Court has implicitly agreed.



  1. Jason Perez · · Reply

    Good one, I always cringe when I hear the claim secession must be possible look at what happened with West VA. You should consider doing a post that deals with it directly although as you said, the court clearly is treating it as though it were done constitutionally.

    1. Well, the court case went into the history of it, and I’ve addressed it in other posts as well.

      1. Would you mind showing me where? I often find that you address things but its not obvious in the title for example for the longest time in order to find where you dealt with Anthony Johnson (until recently) it was under “nattering neo confederate nonsense” haha.

        1. You can find topics by using the search function. Typing “West Virginia” [with the quotation marks] and hitting Enter yields all the posts that mention West Virginia. Then it’s just a question of finding which of those addresses the points you’re looking for.

          Check out

          1. Jason Perez · ·

            Ah yes I was thinking the search was for topics.

            Thanks I’ll check it out

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