Article 1, Section 10, Clause 3

Document 3

Green v. Biddle

8 Wheat. 1 1823

Story, J. . . . 1. The first objection is founded upon the allegation that the compact was made without the consent of Congress, contrary to the tenth section of the first article, which declares that "no state shall, without the consent of Congress, enter into any agreement or compact with another state, or with a foreign power." Let it be observed, in the first place, that the constitution makes no provision respecting the mode or form in which the consent of Congress is to be signified, very properly leaving that matter to the wisdom of that body, to be decided upon according to the ordinary rules of law and of right reason. The only question in cases which involve that point is, has Congress, by some positive act in relation to such agreement, signified the consent of that body to its validity? Now, how stands the present case? The compact was entered into between Virginia and the people of Kentucky, upon the express condition that the general government should, prior to a certain day, assent to the erection of the district of Kentucky into an independent state, and agree that the proposed state should immediately, after a certain day, or at some convenient time future thereto, be admitted into the federal Union. On the 28th of July, 1790, the convention of that district assembled, under the provisions of the law of Virginia, and declared its assent to the terms and conditions prescribed by the proposed compact; and that the same was accepted as a solemn compact, and that the said district should become a separate state on the 1st of June, 1792. These resolutions, accompanied by a memorial from the convention, being communicated by the President of the United States to Congress, a report was made by a committee to whom the subject was referred, setting forth the agreement of Virginia, that Kentucky should be erected into a state upon certain terms and conditions, and the acceptance by Kentucky upon the terms and conditions so prescribed; and, on the 4th of February, 1791, Congress passed an act which, after referring to the compact, and the acceptance of it by Kentucky, declares the consent of that body to the erecting of the said district into a separate and independent state, upon a certain day, and receiving her into the Union.

Now, it is perfectly clear, that although Congress might have refused their consent to the proposed separation, yet they had no authority to declare Kentucky a separate and independent state without the assent of Virginia, or upon terms variant from those which Virginia had prescribed. But Congress, after recognizing the conditions upon which alone Virginia agreed to the separation, expressed, by a solemn act, the consent of that body to the separation. The terms and conditions, then, on which alone the separation could take place, or the act of Congress become a valid one, were necessarily assented to; not by a mere tacit acquiescence, but by an express declaration of the legislative mind, resulting from the manifest construction of the act itself. To deny this is to deny the validity of the act of Congress, without which Kentucky could not have become an independent state; and then it would follow that she is at this moment a part of the state of Virginia, and all her laws are acts of usurpation. The counsel who urged this argument would not, we are persuaded, consent to this conclusion; and yet it would seem to be inevitable if the premises insisted upon be true.

The Founders' Constitution
Volume 3, Article 1, Section 10, Clause 3, Document 3
The University of Chicago Press

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