vided for representation of these counties in the | Berkeley, Jefferson, and Frederick, and enacts Senate and House of Delegates if they elected that whenever they shall, by a majority vote, to become a part of the new state, and that assent to the Constitution of the new state, they should in that event constitute the elev- they may become part thereof; and the legislaenth judicial district. A distinct section also ture sends this statute to Congress with a redeclares, in general terms, that additional terri- quest that it will admit the new *state [*59 tory may be admitted into and become part of into the Union. Now, we have here, on two difthe state with the consent of the legislature. ferent occasions, the emphatic legislative propoThe schedule of this Constitution arranged sition of Virginia that these counties might befor its submission to a vote of the people on the come part of West Virginia; and we have the first Thursday in April, 1862. Constitution of West Virginia agreeing to accept them and providing for their place in the new born state. There was one condition, however, imposed by Virginia to her parting with them, and one condition made by West Virginia to her receiving them, and that was the same, namely: the assent of the majority of the votes of the counties to the transfer. This vote was taken and the Constitution ratified by the people; but it does not appear that either of the three counties of Jefferson, Berkeley, and Frederick took any vote at that time. Next in order of this legislative history is the act of the Virginia legislature of May 13, 1862, passed shortly after the vote above mentioned It seems to us that here was an agreement had been taken, and which is Exhibit No. 1, in between the old state and the new that these complainant's bill. This act gives the consent counties should become part of the latter, subof the state of Virginia to the formation of the ject to that condition alone. Up to this time state of West Virginia out of certain counties no vote had been taken in these counties; probnamed under the provisions set forth in its ably none could be taken under any but a Constitution, and by its 2d section it is de- hostile government. At all events, the bill alclared that the consent of the legislature of leges that none was taken on the proposition Virginia is also given that the counties of of May, 1862, of the Virginia legislature. If an Berkeley, Jefferson, and Frederick, shall be in agreement means the mutual consent of the cluded in said state "whenever the voters of parties to a given proposition, this was an said counties shall ratify and assent to said agreement between these states for the transfer 58*] Constitution, *at an election held for that of these counties on the condition named. The purpose, at such time and under such regula-condition was one which could be ascertained tions as the commissioners named in the said or carried out at any time; and this was clearly schedule may prescribe." This act was directed to be sent to the Senators and Representatives of Virginia in Congress, with instructions to obtain the consent of Congress to the admission of the state of West Virginia into the Union. Accordingly on the 31st of December, 1862, Congress acted on these matters, and reciting the proceedings of the convention of West Virginia, and that both that convention and the legislature of the state of Virginia had requested that the new state should be admitted into the Union, it passed an act for the admission of said state, with certain provisions not material to our purpose. Let us pause a moment and consider what is the fair and reasonable inference to be drawn from the actions of the state of Virginia, the convention of West Virginia, and the Congress of the United States in regard to these counties. The state of Virginia, in the ordinance which originated the formation of the new state, recognized something peculiar in the condition of these two counties, and some others. It gave them the option of sending delegates to the constitutional convention, and gave that convention the option to receive them. For some reason not developed in the legislative history of the matter these counties took no action on the subject. The convention, willing to accept them, and hoping they might still express their wish to come in, made provision in the new Constitution that they might do so, and for their place in the legislative bodies, and in the judicial system, and inserted a general proposition for accession of territory to the new state. The state of Virginia, in expressing her satisfaction with the new state and its Constitution, and her consent to its formation, by a special section, refers again to the counties of the idea of Virginia when she declared that whenever the voters of said counties should ratify and consent to the Constitution they should become part of the state, and her subsequent legislation making special provision for taking the vote on this subject, as shown by the acts of January 31st and February 4th, 1863, is in perfect accord with this idea, and shows her good faith in carrying into effect the agreement. 2. But did Congress consent to this agreement? Unless it can be shown that the consent of Congress, under that clause of the Constitution which forbids agreements between states without it, can only be given in the form of an express and formal statement of every proposition of the agreement, and of its consent thereto, we must hold that the consent of that body was given to this agreement. *The attention of Congress was called [*60 to the subject by the very short statute of the state of Virginia requesting the admission of the new state into the Union, consisting of but three sections, one of which was entirely devoted to giving consent that these two counties and the county of Frederick might accompany the others, if they desired to do so. The Constitution of the new state was literally cumbered with the various provisions for receiving these counties if they chose to come, and in two or three forms express consent is there given to this addition to the state. The subject of the relation of these counties to the others, as set forth in the ordinance for calling the convention, in the Constitution framed by that convention, and in the act of the Virginia legislature, must have received the attentive consideration of Congress. To hold otherwise is to suppose that the act for the admission of the new state passed without any due or serious considera- | the vote to have been reported to it, and astion. But the substance of this act clearly re- sumed the duty of ascertaining and makpels any such inference; for it is seen that the ing known the result to West VirginConstitution of the new state was, in one par- ia; but it delegated that power to the ticular at least, unacceptable to Congress, and governor. It invested him with full discrethe act only admits the state into the Union tion as to the time when the vote should be when that feature shall be changed by the pop- taken, and made his opinion and his decision ular vote. If any other part of the Constitu- conclusive as to the result. The vote was taken tion had failed to meet the approbation of Con- under these statutes, and certified to the gov gress, especially so important a part as the ernor. He was of opinion that the result was proposition for a future change of boundary be- in favor of the transfer. He certified this fact tween the new and the old state, it is reason- under the seal of the state to the state of West able to suppose that its dissent would have been Virginia, and the legislature of that state imexpressed in some shape, especially as the re- mediately assumed jurisdiction over the two fusal to permit those counties to attach them counties, provided for their admission, and selves to the new state would not have endan- they have been a part of that state ever since. gered its formation and admission without them. It is, therefore, an inference clear and satisfactory that Congress, by that statute, intended to consent to the admission of the state with the contingent boundaries provided for in its Constitution and in the statute of Virginia, which prayed for its admission on those terms, and that in so doing it necessarily consented to the agreement of those states on that subject. 61*] *There was then a valid agreement between the two states consented to by Congress, which agreement made the accession of these counties dependent on the result of a popular | vote in favor of that proposition. 3. But the commonwealth of Virginia insists that no such vote was ever given; and we must inquire whether the facts alleged in the bill are such as to require an issue to be made on that question by the answer of the defendant. The bill alleges the failure of the counties to take any action under the act of May, 1862, and that on the 31st of January and the 4th of February, thereafter, the two other acts we have mentioned were passed to enable such vote to be taken. These statutes provide very minutely for the taking of this vote under the authority of the state of Virginia; and among other things, it is enacted that the governor shall ascertain the result, and, if he shall be of opinion that said vote has been opened and held and the result ascertained and certified pursuant to law, he shall certify that result under the seal of the state to the governor of West Virginia; and if the majority of the votes given at the polls were in favor of the proposition, then the counties became part of said state. He was also authorized to postpone the time of voting if he should be of opinion that a fair vote could not be taken on the day mentioned in these acts. Though this language is taken mainly from the statute which refers to Berkeley county, we consider the legal effect of the other statute to be the same. These statutes were in no way essential to evidence the consent of Virginia to the original agreement, but were intended by her legislature to provide the means of ascertaining the wishes of the voters of these counties, that being the condition of the agreement on which the transfer of the counties depended. The state thus showed her good faith to that agreement, and undertook in her own way and by her own officers to ascertain the fact in question. 62*1 *The legislature might have required Do the allegations of the bill authorize us to go behind all this and inquire as to what took place at this voting? To inquire how many votes were actually cast? How many of the men who had once been voters in these counties were then in the rebel army? Or had been there and were thus disfranchised? For all these and many more embarrassing questions must arise if the defendant is required to take issue on the allegations of the bill on this subject. These allegations are indefinite and vague in this regard. 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 mislead 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 gov ernor 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 the 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 [*63 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 has 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 the state to withdraw hers. The demurrer to the bill is, therefore, sustained, and the bill must be dismissed. Mr. Justice Davis, dissenting: Being unable to agree with the majority of the court in its judgment in this case, I will briefly state the grounds of my dissent. any application whatever to the second district. For though the 2d section of the first article of the new Constitution had proposed to include it, the proposal was accompanied with conditions which were not complied with; and when that Constitution was presented to Congress for approval, the proposal had already been rejected, and had no significance or effect whatever. I am authorized to say that Mr. Justice Clifford and Mr. Justice Field concur in this dissent. v. MARIANO GALCERAN. JUSTO GARCIA Y LEON, Plff. in Err., There is no difference of opinion between us in relation to the construction of the provision of the Constitution which affects the question at issue. We all agree that, until the consent *JUSTO GARCIA Y LEON, Plff. in Err., [*185 of Congress is given, there can be no valid compact or agreement between states. And that, although the point of time when Congress may give its consent is not material, yet, when it is given, there must be a reciprocal and concurrent consent of the three parties to the contract. 64*] Without *this, it is not a completed compact. If, therefore, Virginia withdrew its assent before the consent of Congress was given, there was no compact within the meaning of the Constitution. To my mind nothing is 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 2, 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 these two counties. This withdrawal was in ample time, as it was before the proposal of the state had become operative as a concluded compact, and the bill (in my judgment) shows that Virginia had sufficient reasons for recalling its proposition to part with the territory embraced within these counties. But, it is maintained in the opinion of the court that Congress did give its consent to the transfer of these counties by Virginia to West Virginia, when it admitted West Virginia into the Union. The argument of the opinion is, that Congress, by admitting the new state, gave its assent to that provision of the new Constitution which looked to the acquisition of these counties, and that if the people of these counties have since voted to become part of the state of West Virginia, this action is within the consent of Congress. I most respectfully submit that the facts of the case (about which there is no dispute), do not justify the argument which is attempted to be drawn from them. The 2d section of the 1st article of the Constitution of West Virginia was merely a proposal addressed to the people of two distinct districts, on which they were invited to act. The people of one district (Pendleton, Hardy, Hampshire, and Morgan) accepted the proposal. The people of the other district (Jefferson, Berkeley, and Frederick) rejected it. In this state of things, the first district became a part of the new state, so far as its Constitution could make it so, and the legislature of Virginia included it in its assent, and 65*] *Congress included it in its admission to the Union. But neither the Constitution of West Virginia, nor the assent of the legislature of Virginia, nor the consent of Congress, had v. MANUAL PIJUAN. JUSTO GARCIA Y LEON, Plff. in Err., v. JUAN OLIVER. (See S. C. 11 Wall. 185-192.) Suits by mariners to recover wages-where brought-mariners may waive lien and sue in state court-suits against sureties. Mariners, in suits to recover their wages, may proceed against the owner or master of the ship in personam, or they may proceed in rem against the ship, or ship and freignt, at their election. The mariner may proceed by libel in the district court, or by an action at law, either in the circuit court, or in a state court, as in other causes of action cognizable in the state and Federal courts, exercising jurisdiction in common-law cases. Claims of the kind create a lien upon the vessel under the laws of Louisiana, similar to the lien which arises in such cases under the maritime law. Common-law remedies are not competent to enforce a maritime lien by a proceeding in rem and, consequently, the jurisdiction in such cases is exclusively in the district courts. Even where a maritime lien arises, the injured party may waive his lien, and may resort to his common law remedy in the state court, against the owner of the vessel. Suit may be brought in the state court against sureties in a bond given to release property from a writ of sequestration. [Nos. 85, 86, 92.] Submitted Feb. 6, 1871. Decided Mar. 6, 1871. Court of the State of Louisiana. IN ERROR to the Seventh Judicial District Petitions in these cases were filed in the district court in and for the parish of Orleans in the state of Louisiana, by the defendants in error, for moneys alleged to be due them upon certain bonds given as security in the course of legal proceedings therefor, had for the collection of sailors' wages. Judgments having been given for the plaintiff's, the defendant sued out these writs of error. The case is fully stated by the court. Messrs. Caleb Cushing and John T. Drew, for plaintiff in error: Even if the state court could entertain a personal action against the owner, it had no jurisdiction over the vessel by conservatory writ and proceeding in rem, to enforce a maritime lien by seizure before judgment. This question seems to be settled in a late case of The Belfast v. Boon, 7 Wall. 624, 19 L. ed. 266; and in the case of The Moses Taylor, 4 Wall. 411, 18 L. ed. 397. Having no jurisdiction, therefore, over the vessel in a proceeding in rem, a judicial bond, given in that court for its delivery, is null and void; and the court having no authority of law, or jurisdiction of the subject-matter, the order of the court to bond is also an absolute nullity. "The rule that as one binds himself he must remain bound, may be true in mere conventional obligations; but the effect of judicial bonds must be tested by the law directing them to be taken. That which is superadded must be rejected, and that which is omitted supplied. So, if there be no law authorizing such a bond to be taken, or if the prerequisites required for the taking thereof be not fulfilled, the bond will not bind; there is error, and the considera- | tion fails." 2 Hennen, La. Dig. new ed. p. 1023, verbo 6. (No counsel appeared in this court for the defendants in error, but an argument was filed by them, of which the following is an abstract:) The owner of the vessel sequestered was personally sued and cited, and in due course of law, judgments were rendered by default against him in personam, for the amounts claimed, with the mariner's lien and privilege upon the property sequestered. On the return of the sheriff, that the property bonded could not be found, suits were then brought in the same court by the defendants in error, to enforce in personam the obligation of said forthcoming bonds against the surety thereon, and after the question of jurisdiction was urged and overruled, judgments were rendered in personam, in favor of the defendants in error, against said surety, for the amounts fixed by the original judgments. The right of mariners to bring suits in personam against the owners of the vessel on which they have earned their wages, in the state courts, is expressly reserved to them by the judiciary act of 1789, under the proviso, "saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it." The writ of sequestration was issued as a mesne or conservatory process, to preserve intact, pendente lite, a lien and privilege granted by law; and to secure the presence of the vessel within the territorial jurisdiction of the state court, until after the final judgments, to be then subjected to execution and sale. Said writ was as lawful as the suit itself, to which it was a mere appendage or incident, and as the writ of fieri facias issued on said personal judgments, and of which said writ of sequestration was the mere precursor. The only thing which the Federal Constitution and the judiciary act of 1789 seem to have taken away from the state courts is the cognizance of civil causes of admiralty and maritime jurisdiction, when the same are sought to be brought solely in rem, against the offending vessel itself as a party defendant to the suit. The writ of sequestration has no analogy whatever with the admiralty process, as understood and defined by writers on admiralty law. See art. 269 et seq. of the Louisiana Code of Practice. "When properly brought, the suit is against the owners of the vessel; and in states where there are attachment laws, the plaintiff may attach any property not exempted from execution belonging to the defendant. The vessel is held under the attachment as the property of the defendant, and not as the offending thing, as in the case of a proceeding in rem.' The Belfast v. Boon, 7 Wall. 645, 19 L. ed. 272. "The distinguishing and characteristic feature of such a suit (one in rem) is, that the vessel or thing proceeded against is itself seized and impleaded as the defendant. It is this dominion of the suit in admiralty over the vessel or thing itself, which gives to the title made under its decrees, validity against the whole world. By the common-law process, whether of mesne attachment or execution, property is reached only through a personal defendant, and then only to the extent of his title." The Moses Taylor, 4 Wall. 427, 18 L. ed. 400. Mr. Justice Clifford delivered the opinion of the court: Mariners in suits to recover their wages, may proceed against the owner or master of the ship in personam, or they may proceed in [*188 rem against the ship, or ship and freight, at their election. Where the suit is in rem against the ship, or ship and freight, the original jurisdiction of the controversy is exclusive in the district courts, as provided by the 9th section of the judiciary act; but when the suit is in personam against the owner or master of the vessel, the mariner may proceed by libel in the district court, or he may, at his election, proceed in an action of law either in the circuit court, if he and his debtor are citizens of different states, or in a state court as in other causes of action cognizable in the state and Federal courts exercising jurisdiction in common-law cases, as provided in the 11th section of the judiciary act. 1 Stat. at L. 78; The Belfast, 7 Wall. 642, 644, 19 L. ed. 271. He may have an action at law in the case supposed either in the circuit court or in a state court, because the common law, in such a case, is competent to give him a remedy, and whereever the common law is competent to give a party a remedy in such a case, the right to such a remedy is reserved and secured to suitors by the saving clause contained in the 9th section of the judiciary act. Services, as mariners on board the schooner Gallego, were rendered by each of the appellees in these cases, and their claims for wages remaining unpaid, on the 8th of August, 1868, they severally brought suit in personam against Joseph Maristany, the sole owner of the schooner, to recover the respective amounts due to them, as wages for their services as such mariners. Claims of the kind create a lien upon the vessel under the laws of that state quite similar to the lien which arises in such cases under the maritime law. They accordingly applied to the court where the suits were returnable for writs of sequestration, and the same having been granted and placed in the hands of the sheriff for service, were levied upon the schooner as a security to respond to the judg ments which the plaintiffs in the respective suits might recover *against the owner [*189 of the vessel, as the defendant in the several suits. Such a writ when duly issued and served in such a case has substantially the same effect in the practice of the courts of that state as an attachment on mesne process in jurisdictions where a creditor is authorized to employ such a process to create a lien upon the property of his debtor as a security to respond to his judgment. Neither the writ of sequestration nor the process of attachment is a proceeding in rem, as known and practised in the admiralty; nor do they bear any analogy whatever to such a proceeding, as the suit in all such cases is a suit against the owner of the property and not against the property as an offending thing, as in case where the libel is in rem in the admiralty court to enforce a maritime lien in the property. Due notice of the suit was given to the defendant in each case, and he appeared and made defense. Pending the suits the schooner, which had previously been seized by the sheriff under the writ or writs of sequestration, was released on motion of the defendant in those suits and was delivered into his possession, he, the defendant, giving a bond to the sheriff, with surety, conditioned to the effect that he would not send the property out of the jurisdiction of the court nor make any improper use of it, and that he would faithfully present the same in case such should be the decree of the court, or that he would satisfy such judgment as should be recovered in the suit. Judgment was recovered by the plaintiff in each case against the owner of the schooner, and executions were issued on the respective judgments, and the same were placed in the hands of the sheriff. Unable to find any property of the debtor or to make the money, the sheriff returned the execution unsatisfied, and the property bonded was duly demanded both of the principal obligor and of the present plaintiff in error, who was the surety in each of the forthcoming bonds. Given, as the bonds were, on the release of the schooner, they became the substitute for 190*] the property, and the obligors *refusing to return the same or to satisfy the judgments, the respective judgment creditors instituted suits against the surety in those bonds. Service having been duly made, the defendant appeared and filed an exception to the jurisdiction of the court in each case, upon the ground that the cause of action was a matter exclusively cognizable in the district courts of the United States, but the court overruled the exception and gave judgment for the plaintiff; whereupon the defendant sued out a writ of error in each case and removed the same into this court. Briefly stated, the defense in the court below was, that the action was founded on a bond given for the sale of the schooner seized under admiralty process in a proceeding in rem, over which the state court had no jurisdiction ratione materiæ, "and that the bond was taken coram non judice and is void." Enough has already been remarked to show that the theory of fact assumed in the exception is not correct, as the respective suits instituted by the mariners were suits in personam against the owner of the schooner, and not suits in rem against the vessel, as assumed in the exception. Were the fact as supposed, the conclusion assumed would follow, as it is well-settled law that common-law remedies are not appropriate nor competent to enforce a maritime lien by a proceeding in rem and, consequently, that the jurisdiction conferred upon the district courts, so far as respects that mode of proceeding, is exclusive. State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a state court to enforce such a lien by a suit or proceedings in rem, as practised in the admiralty courts; but whenever a maritime lien arises the injured party may pursue his remedy by a suit in personam or by a proceeding in rem at his election. Such a party may proceed in rem in the admiralty, and if he elects to pursue his remedy in that mode, he cannot proceed in any other form, as the jurisdiction of the admiralty courts is exclusive in respect to that mode of proceeding, but such a party is not restricted to that mode of proceeding even in the admiralty court, as he may waive his lien and proceed *in [*191 personam against the owner or master of the vessel in the same jurisdiction, nor is he compelled to proceed in the admiralty at all, as he may resort to his common-law remedy in the state courts, or in the circuit court, if he and his debtor are citizens of different states. Suitors, by virtue of the saving clause in the 9th section of the judiciary act conferring jurisdiction in admiralty upon the district courts, have the right of a common-law remedy in all cases "where the common law is competent to give it." and the common law is as competent as the admiralty to give a remedy in all cases where the suit is in personam against the owner of the property. Attempts have been made to show that the opinion of the court in the case of The Moses Taylor, 4 Wall. 411, 18 L. ed. 397, and the opinion of the court in the case of The Hine v. Trevor, 4 Wall. 555, 18 L. ed. 451, are inconsistent with the views here expressed; that the court in those cases do not admit that a party in such a case can ever have a remedy in a state court; but it is clear that every such suggestion is without foundation, as plainly appears from the brief explanations given in each case by the justice who delivered the opinion of the court. Express reference is made in each of those cases to the clause in the 9th section of the judiciary act, which gives to suitors the right of a common-law remedy where the common law is competent to give it, and there is nothing in either opinion, when the language employed is properly applied to the subject-matter then under consideration, in the slightest degree inconsistent with the more elaborate exposition of the clause subsequently given in the opinion of the court in the case of The Belfast, 7 Wall. 642, 19 L. ed. 271, in which all the members of the court as then constituted concurred. Those explanations are a part of the respective opinions, and they expressly recognize the right of the suitor to his common-law action and remedy by attachment, as provided in the saving clause of the 9th section of the judiciary act. Common-law remedies are not competent to enforce a maritime lien by a proceeding in rem and, consequently, the *original juris- [*192 diction to enforce such a lien by that mode of proceeding is exclusive in the district courts. which is precisely what was decided in each of |