the Commonwealth of Virginia before the Supreme Court of the United States. Notwithstanding the exasperation of feeling incident to the period, and the strong pressure in favor of the new State's claim, the Court was equally divided, which must, under the circumstances, be regarded as a decided moral, though of course not a legal victory for Virginia. On the reconstruction of the Court, and the appointment of two new justices in 1871, the case came up again, and on a demurrer filed by the counsel for West Virginia, was decided in her favor.
The dissenting opinion delivered by Justice Davis, and concurred in by Justices Clifford and Field, states the case tersely and clearly: "To my mind there is nothing clearer than that Congress never did undertake to give its consent to the transfer of Berkeley and Jefferson counties to the State of West Virginia until March 2nd, 1866. If so, the consent came too late, because the Legislature of Virginia had, on the 5th day of December, 1865, withdrawn its assent to the proposed cession of the two counties. This withdrawal was in ample time, as it was before the proposal of the State had become operative as a concluded compact, * * *."
It should be noted here, as making the case of Virginia still stronger, that this opinion proceeds on the assumption that there had been a real and valid assent previously given on her part to the proposed cession, an assumption utterly at variance with the facts.
Thus, in spite of the protest of the dissenting judges, the unconstitutional, violent and revolutionary proceedings of the executive and legislative branches, commenced, at all events, if not completed, flagrante bello, were sanctioned and confirmed by the judicial department, in a time of profound peace, when it might have been hoped that the voice of the laws, silent amidst the shock of arms, would be heard again, at least, in what should have been their ultimate refuge and inviolable asylum.
If further proofs are desired of the utter incompetence of the Supreme Court to act as a barrier against popular passion, and to guard the Constitution from the encroachments of a victorious and dominant party, they are deplorably abundant. Without stopping to dwell upon the case involving the constitutionality of the Reconstruction Laws, which, while actually under advisement by the Court, was violently snatched from its grasp by an act hurried through Congress and passed over the President's veto, or upon the still more notorious Legal-Tender cases, in which the Court was deliberately packed for the purpose of obtaining the reversal of a decision disagreeable to the
