appeared before the Court, stating that he had been authorized to file and serve the demurrer by the Attorney-General. He further stated that he was not counsel in the case, and that there was no counsel in the city to represent the State. The next statement doubtless was heard with great interest by counsel for New Jersey and the members of the Court, as it intimated the intention of New York to comply, however tardily, however ungraciously, however unwillingly, with the subpoena. Thus, Mr. Beardsley said: The Attorney-General was not expected, until the argument of the demurrer should come on.1 He asked the permission of the Court to make a few suggestions, inasmuch as he had filed the demurrer as agent for the Attorney-General. For the present purpose, it is not necessary to follow Mr. Beardsley's observations, inasmuch as he spoke in an unofficial capacity, other than to say that the Attorney-General of New York considered the demurrer as an appearance in the cause, although it contained a suggestion that the Court has no jurisdiction, that the entry of an appearance was a mere form; that filing of the demurrer was ample authority for making such entry, if at all necessary; that in England the filing of a demurrer is considered an appearance in the cause; that although ordered to answer a demurrer admits all the facts well stated in the bill, and it is therefore to be considered as strictly and literally within the order. ance con Again, Mr. Chief Justice Marshall delivered the opinion of the court as to the Appearonly question before it at this time, whether the demurrer filed with the clerk of sidered the court was to be considered as an appearance and as an answer, in compliance sufficient with the order issued in the second phase of the case. The Chief Justice stated that by the Court. the court so considered it; that, if on the contrary, the Attorney-General of New York did not mean it to be such, then it would not be regarded as an appearance or as a compliance with the order, and that this statement was made in order that the Attorney-General might have due notice to withdraw the demurrer, if it were not to be considered as an appearance and an answer in the case. The Chief Justice recognized, however, that the appearance of New York was not such as the court had contemplated or as the counsel for New Jersey might have had reason to expect, and that, if the strict procedure obtaining between individuals was requisite in suits between States, the State of New York would be held to have failed to comply with the order. The court, however, recognized the distinction between an individual and a State, and that the latter has a temper of its own. Therefore, the court said: The word answer' is not used in a technical sense, as an answer to the charges in the bill under oath; but an answer, in a more general sense, to the bill. A demurrer is an answer, in law, to the bill, though not in a technical sense, an answer according to the common language of practice.2 Accepting the demurrer as amounting to a compliance, the court therefore directed the demurrer to be set down for argument, in accordance with the motion of the plaintiffs. This ended the third phase of the case, and, in fact, it ended the case, because it did not appear again in court, but was settled out of court by mutual agreement of the States. State of New Jersey v. State of New York (5 Peters, 323). 2 Ibid. (5 Peters, 323, 327). Case set tled out of Court. Cautious ment of the pro inter State cases. The proceedings in the three phases of the case of New Jersey v. New York have develop been described in detail, in order to show how slowly, how cautiously, counsel and court approached the question of suits between the States; how clearly they recogcedure in nized the distinction between private suitors, on the one hand, and States of the Union, on the other, which had consented to be sued in the Supreme Court, but were apparently unwilling to be dragged before it; how patiently they considered the difficulties which arose in attempting to secure an appearance of the States; how prudently they circumvented the obstacle standing in the way of an appearance by accepting an informal and doubtful expression of intent to appear as an appearance and a compliance with an order of the court, in order that a procedure might be devised acceptable to the States and capable of administering justice between them, without compulsion and without creating ill-will, which might, in the case of suits between States, have resulted in a further amendment to the Constitution withdrawing the jurisdiction of the Supreme Court in such cases, as happened in the case of suits by individuals against the States. 8. State of Rhode Island v. State of Massachusetts. In 1833, Mr. Robbins, then United States Senator from Rhode Island, and solicitor for that State in its boundary suit against Massachusetts, made a motion in the January term, renewing his motion of the previous term, and, in the language of the record, praying the court to award such process and in such form as the court may deem proper. In pursuance of this motion and upon consideration of it, the court ordered, to quote from the official report its entire opinion in this Subpoena case, that 'process of subpoena be, and the same is hereby awarded, as prayed for granted by the by the complainant, and that said process issue against "The Commonwealth of Court. Massachusetts "'. Application of Rhode Is The report of proceedings in this first phase of this famous case took up less than a dozen lines of the official report, and yet the result of their action was to bring to the bar of justice a sovereign State of the American Union. 9. State of Rhode Island v. State of Massachusetts. The second phase of the case began in 1837, after four years had elapsed, by the Attorney-General of the State of Rhode Island appearing in the Supreme Court land for and moving for a continuance, that is to say, a postponement of the case. The a post- reason alleged was that Mr. Hazard, a distinguished lawyer of Rhode Island, assoponement owing to ciated as senior counsel with the Attorney-General in this cause, was unable to appear because of illness. The Attorney-General apparently felt that something more than a mere request was needed to justify the continuance, for he knew that the AttorneyGeneral of Massachusetts was present to oppose it. Therefore, after stating the necessity of Mr. Hazard's appearance, which was impossible without a postponement, he wisely called attention to the importance of the litigation between two States of the illness of counsel. the Union, and he properly insisted that the rules applicable to the one would not be strictly applied to the other. Thus he said: Questions between the different states of the Union, are always of deep concern and of high importance. An appeal to this Court for the decision of such questions, is an application to the highest powers of the Court. Where these questions are for a part of the territory in possession of either of the contending states, occupied by a large population, they become of the deepest and highest interest. Such is the present controversy.1 After thus stating, but not dwelling upon the importance of the proceeding, he thus brushed aside an adherence to technicalities which might prevent the administration of justice: It is submitted, that this Court will not apply the strict rules which govern other cases to this. The peace and tranquillity of the Union may be disturbed by the decision of such a case, however just and proper; if a belief shall prevail, that every opportunity for its full and complete discussion was not afforded to each party. Although no imputation of wrong would be charged to this Court, which, in conformity with its established rules, had proceeded to the decision of the cause, against the party opposing the application of those rules, under an existing or asserted disadvantage to the opposing party, strong feelings of dissatisfaction and discontent might prevail; always, if possible, to be prevented between the citizens of neighboring common. wealths.2 After these statements, by way of introduction, the Attorney-General thus mentioned in passing the questions involved in the case: The questions which will be raised in the argument of this case, are of great and general importance; and some of them have not been decided. Questions of the jurisdiction of this Court in a case between two states; and whether, if it exists, provision has been made by legislation for its exercise, are involved; and must be determined in the final disposition of the cause. These questions were raised in the case of the State of New Jersey v. State of New York, but they were not decided. The weight and interest of these questions were felt, when that case was before this Court some years since. The controversy between those states was adjusted by commissioners, and the case was not decided here.3 Turning then to Massachusetts and showing that the continuance could not prejudice the rights of that State as defendant, the Attorney-General said: To the state of Massachusetts, the postponement of the final decision of this case to the next term, can do no injury. She is in possession of the territory which is claimed by Rhode Island, and the inhabitants of the same are subject and obedient to her laws. Rhode Island, this Court will believe, does not, on other than grounds which she considers will sustain her claims, come into this high tribunal to assert her rights to that territory.4 It would seem that this statement on behalf of Rhode Island was sufficient to cause the court to grant the continuance, but the Attorney-General of Massachusetts was present to oppose it, and his views were heard, although rejected by the court. Thus he said: The case is one of a character which gives it a peculiar interest; and which, while it is unsettled, affects the tranquillity of not less than five thousand persons, who are inhabitants of the territory claimed by Rhode Island.5 1 State of Rhode Island v. State of Massachusetts (11 Peters, 226). Ibid. (11 Peters, 227). • Ibid. (11 Peters, 227). Ibid. (11 Peters, 227). Ibid. (11 Peters, 228). Postponement op posed by Massa chusetts. Postpone. ment granted by the Court. A boundary dispute. In a later portion of his very brief address, the Attorney-General from Massachusetts stated that 'the cause has been pending for six years; and two years have passed since the answer of the state of Massachusetts was filed. The case could have been disposed of, he said, had Rhode Island wished to do so in the two terms which had passed since the filing of the answer, and while the circumstances were appreciated under which the motion for a postponement was made, the AttorneyGeneral of Massachusetts stated on behalf of that Commonwealth that he could not consent to the continuance of the case. The decision of the court was, as was to be expected, in favour of the postponement, given its attitude toward the States, and Mr. Chief Justice Marshall's great and worthy successor, Mr. Chief Justice Taney, in behalf of his brethren on the day following the argument on the motion, said, to quote the language of the report in full, that the court had decided to order the cause to be continued '.1 10. State of Rhode Island v. State of Massachusetts. With the year 1838 the case of Rhode Island v. Massachusetts entered upon its As still further showing the exact nature of the dispute, the territory described by the State of Rhode Island in its bill is stated by the Attorney-General of Massachusetts in his argument to comprise between eighty and one hundred square miles, being a part of six townships, incorporated under the laws of Massachusetts, with a population of about 5,000 persons, at present citizens of that State'.3 1 State of Rhode Island v. State of Massachusetts (11 Peters, 228). Ibid. (12 Peters, 657, 669). Mr. Webster, then the undoubted leader of the American bar, appeared as counsel for the State of Massachusetts, and moved to dismiss the bill filed by Rhode Island on the ground that the Court lacked jurisdiction of the cause of action. The case was elaborately argued by the Attorney-General of Massachusetts and by Mr. Webster; by Mr. Hazard, then the leader of Rhode Island, and by Mr. Southard, of the State of Rhode Island. Sum the facts. The facts in the case are very complicated, and they are set out in great detail in the pleadings. They are summarized in the statement of the case, to be found mary of in the official report; they are adverted to at considerable length in the argument of counsel; and they are admirably stated and grouped in the opinion of Mr. Justice Baldwin, speaking on behalf of the court. As, however, the present phase of the case involves the right of the court to entertain jurisdiction of the bill as maintained by counsel for Rhode Island and denied by counsel for Massachusetts; as the question of jurisdiction was one particularly argued by counsel, although they went into the facts and the merits of the case, and as the decree of the Court was that it possessed jurisdiction, and could therefore hear and entertain the controversy between the States, it would be sufficient to say that the difference between the States was one of boundary as to where the line separating Rhode Island on the north from Massachusetts on the south-for the two states are contiguous-should be drawn, according to the provisions of the charters from the crown creating the colonies. According to the Charters the boundary between the Colonies was a line drawn east and west three English miles south of the river called Charles River, or of any or every part thereof.' The point from which the line was to start was, therefore, the subjectmatter of the dispute. If it was where Massachusetts claimed it to be, and where the Court, in the final determination of this case, found it to be, then the existing line between the two States was correct and there was no legal foundation for the dispute. If, on the contrary, the point from which the boundary line was to proceed east and west was where Rhode Island claimed it to be, some three to four miles farther to the north, then the boundary line between the two States would not legally be what it then was, unless there had been an agreement between the colonies binding the States concerning the point and concerning the line itself. It was claimed by Massachusetts that the point in question had been fixed in 1642 by Messrs. Nathaniel Woodward and Solomon Saffrey,' skillful, approved artists; that, to settle the boundary dispute between the two colonies, they agreed, in 1709, to appoint commissioners, who actually were appointed, and who, on January 19, 1710, met and entered into an agreement adopting the point said to be fixed by Woodward and Saffrey; that this agreement was approved by the colonies; that commissioners on the part of the colonies were, in 1718, appointed to draw the line; that they met in the course of 1718 agreed upon the location of the stake set up by Woodward and Saffrey as the situation or commencement of the line; and that the report of the commissioners, submitted to the colonies and approved by them in 1719, stated that they had run the line, placing heaps of stones and marking trees to designate it. It was denied by Rhode Island that the stake claimed to have been driven by Woodward and Saffrey ever existed, and although the subsequent negotiations, |