shall be planted by the said commissioners in the said line, the mark of "State Line" facing the east'.1 It is not improper to observe how easily and simply the Court marked the boundary, not by fortifications bristling with cannon, but by simpler and less expensive monuments, as is the wont of Courts and is to be expected in judicial settlement. Commis- It was further ordered that a certified copy of the decree was to be forwarded sioners to by the clerk of the Court to the Governors of the States of Missouri and of Iowa report to the Court. and also to the commissioners, who were ordered 'to make report to this court, on Report con or before the first day of January next, of their proceedings in the premises, with a bill of costs and charges annexed'. The Chief Justice was empowered by the Court to appoint other commissioners in case of death or inability to perform the duties required by this decree, to increase the number of commissioners should he deem it advisable, and he was finally authorized, in vacation, ‘to make such orders and give such instructions, as this court could do when in session'.3 17. State of Missouri v. State of Iowa. Thus the first phase of this controversy ended. The commissioners appointed by the Court to run and mark the boundary line between the States of Missouri and firmed by the Court, Iowa performed their duty, and made their report to the Court at the December 1850. term of 1850, from which it appears 'that two surveyors had been employed by said commissioners to aid them in doing the work in the field; and that other assistants had been employed, and that various expenses had been incurred in running and marking said line'. To estimate these expenses, the clerk of the court was ordered to 'examine witnesses, and resort to other evidence, for the purpose of ascertaining what is the proper compensation to be allowed to said commissioners and the surveyors they employed'. The clerk was also directed to ascertain the amount of expenses, of every description, incurred by said commissioners, besides the compensation to themselves and said surveyors, together with the costs and charges incurred in this court in carrying on the controversy here'. The clerk was instructed to take the report of the commissioners on these matters' as prima facie true', and to ascertain the amount of moneys advanced to the commissioners by the states of Missouri and Iowa, respectively, and the manner in which the moneys had been expended. On January 3, 1851, the cause came on for further order and decree, when the reports of the commissioners, of the surveyors, and of the clerk, and the report of the commissioners appointed by the court under the decree in the first phase of this case were presented, found to be true, and approved, and were adopted and confirmed and the boundary line finally established.5 Costs to In the portion of the decree of the court relating to expenses, the clerk was allowed be shared for his services, past, present, and future, in connexion with this case, the sum of equally. $162.27. In addition to the advances made by the States, it appeared that the total expenses of the survey amounted to $10,880.41, and that of this sum each party to 1 State of Missouri v. State of Iowa (7 Howard, 660, 679–80). Ibid. (10 Howard, 1). Ibid. (7 Howard, 660, 680). 5 Ibid. (10 Howard, 1, 2). the controversy had advanced $2,000. In addition, as each state was to pay half of the expenses, the court taxed the State of Missouri and the State of Iowa with the payment of the sum of $3,514.761, out of which the commissioners were to satisfy the expenses of the proceedings.1 Courts are not bankers, but they are careful of the pennies and look upon themselves as trustees rather than as parties to the case. It appeared that certain instruments had been purchased by the commissioners and were held by them subject to the order of the court. It was therefore ordered by this tribunal that ' the commissioners dispose of the said instruments at such times and places, and on such terms, as to them may seem most advantageous to the interests of the parties in this suit', and that they' pay the proceeds of the sale into the treasuries of the said States of Missouri and Iowa, respectively, that is to say, one-half of the proceeds into each treasury, and take receipts from the proper officers for the moneys paid'.2 The commissioners were ordered to report to the next term of the court the manner in which they had executed the duties imposed upon them, and for this purpose the cause was kept open and the clerk of the Court, as in the previous case, was ordered to transmit to the Governors of Iowa and of Missouri copies of the decree ' including the reports of the commissioners, surveyors, and clerk, together with a copy of the field notes of said surveyors, duly authenticated under the seal of this court'.3 18. State of Florida v. State of Georgia. (11 Howard, 293) 1850. for leave to file a The first phase of this case is very brief and is an introduction to the second Motion phase. Yet it is to be regarded as a separate and distinct suit. It is reported as such, although it is naturally and in fact introductory to an interesting, elaborate, and bill. important controversy between the two States, to which, in the second phase, the United States intervened and became a party. For the present purpose it is sufficient to say that Messrs. Johnson & Westcott, solicitors for Florida, moved for leave to file a bill of complaint and for a writ of subpoena or such process as to the court may seem proper'. On this meagre statement of affairs, the Court was in doubt as to the order it should render, and therefore took it under advisement. By the next day, however, the Court had made up its mind, and, following the Subpoena rule of safety, took the usual course in such cases, ordering that the bill of complaint granted. be filed, that process of subpoena be awarded as prayed for, and that such process issue against the State of Georgia. 19. State of Florida v. State of Georgia. (17 Howard, 478) 1854. The process awarded in the first phase of Florida v. Georgia (11 Howard, 293) was duly served upon the Governor and Attorney-General of the defendant State, which answered; and other proceedings in due course were had. But before the case was at issue, and before all the evidence taken upon which the parties to the original suit proposed to rely, a very extraordinary event happened, which introduced 1 State of Missouri v. State of Iowa (10 Howard, 1, 51, 53). a Ibid. (7 Howard, 1, 53). 3 Ibid. (7 Howard, 1, 53). Intervention of the United A boundary dispute. a new party to the controversy, and which makes of it a precedent and a point of departure. This new party was the United States, which, by its Attorney-General -admittedly the ablest of a long line of able representatives, Caleb Cushing by name, appeared and filed an information, moving at the same time for leave to intervene on behalf of the United States. Mr. Cushing informed the court that the United States was interested in the controversy between the plaintiff and defendant, inasmuch as it claimed the portion of territory in dispute as the public domain of the United States; and because of this fact, Mr. Cushing, in his own behalf and in behalf of the United States, moved the court that he be permitted to appear in the case and that he be heard on behalf of the United States at such time and in such form as the Court should order.1 It was not doubtful that the United States could sue in the Supreme Court, because an express provision of the Constitution gave it that right, but the United States had not heretofore asserted the right to sue a State of the Union. It did not raise that point in this proceeding, although it seemed to be involved, inasmuch as the Attorney-General did not ask to be a party to the extent of praying relief against one or the other of the states, or to the extent of having a judgement entered against it. He only asked the right to intervene in order to disclose the interest of the United States in the controversy, reserving the right to take such further action as might seem advisable in the premises. From this point of view the United States was not to be considered as plaintiff or defendant, and yet, if the United States could not be a plaintiff or defendant in the case, it seems difficult to support its intervention in a proceeding to which only States could be parties. As was natural, Mr. Cushing appeared in defence of his motion, and as was also natural under the circumstances, defendant and plaintiff appeared to oppose the motion, as the original controversy was one to which alone they were parties and in which they were primarily interested. However, before taking up the question of jurisdiction, it is advisable to mention briefly the controversy between the States. In its bill Florida alleged that the portion of the boundary line in dispute should run from the junction of the Flint and Chattahoochee rivers, and thence in a straight line to Ellicott's Mound, situated at the assumed head of the River St. Mary's. The State of Georgia likewise agreed with Florida that this portion of the boundary in controversy should begin at the junction of the Flint and Chattahoochee rivers, but, instead of running to Ellicott's Mound, it should run to a point called Lake Spalding or a point called Lake Randolph. Now Lake Randolph and Lake Spalding are situated about thirty miles to the south of Ellicott's Mound, the effect whereof, in the opinion of Mr. Cushing, would be, if the contention of Georgia were sustained, to transfer to that State a tract of land in the shape of a triangle with a base of thirty miles and equal sides of about a hundred and fifty miles in length, containing some 1,200,000 acres of land, all of which had heretofore been considered and treated as the public domain of the United States, and surveyed as such, and much of which had been sold and patented by the Government as of the territory of East Florida acquired from Spain.2 There was no precedent for the intervention of the United States, a fact which did not disconcert Mr. Cushing, who relied upon the English case of Taylor v. Salmon 1 State of Florida v. State of Georgia (17 Howard, 478, 480). a Ibid. (17 Howard, 478, 479). (4 Mylne and Craig, 134, 141), decided in 1883, in which Lord Cottenham was reported as saying that it was the duty of the court of chancery' to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise; and not, from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice, and to enforce rights for which there is no other remedy'. The English authority was apposite and in strict accord with the practice of the Supreme Court in suits between States, in which the rules of equity were modified so as to adapt them to the changed conditions of the parties as well as to the changed circumstances of the cases themselves. Mr. Cushing therefore contended that the absence of a precedent for the appearance of the United States in a suit between States was not fatal, as the Supreme Court, creating a precedent in the case of the States, could assuredly create a precedent in the case of the United States to protect its interest, if necessary. Leaving this phase of the question, Mr. Cushing insisted that the United States Grounds should not appear in the name of the State of Florida, for a variety of reasons; for for interif the appearance of the United States depended upon the consent or discretion of of the Florida, or of any other State, like circumstanced, the withdrawal of the consent United would deprive the United States of its right to appear. The United States ought to appear in its own behalf and in self-defence, and it was for the United States to decide when its interest requires that it appear. Although in the present instance Florida had called the suit to the attention of the United States and asked the General Government to intervene, a case might arise in which the intervention of the United States would be opposed to the interests of the parties, and therefore its intervention would not be requested. vention States. tional arguments. Mr. Cushing further stated, in support of this contention, that the United States United had granted certain lands by patents to individuals, or by statute cession to Florida, States grants in which, if the claim of Georgia be sustained, belonged to that State and not to the question. United States. But in this case the United States was responsible to its grantees. It therefore appeared in its own interest as warrantor of title. It also had an interest that the controversy between the two States be fully and well tried and that the case, properly presented, be disposed of upon its merits. Then, too, he called attention to that clause of the Constitution forbidding a State to be erected within the juris- Constitudiction of another State, or the formation of any State by the junction of two or more States or parts of States without the consent of the legislature of the States as well as of the Congress. He also called attention to a related clause of the Constitution, forbidding a State, without the consent of Congress, to enter into any agreement or compact with another State. He maintained that the States could not change their common boundary without the consent of Congress, and that the United States had an interest in the question of boundaries, as the transfer of sovereignty, directly or indirectly, affected the Congress and affected all departments of the Government. He suggested that treaty rights might be involved, also that special acts of Congress could be called in question. These reasons would, in Mr. Cushing's opinion, justify the intervention of the United States. But, as previously stated, he was unwilling to have the United States become a plaintiff as a party of record, or to have a judgement against the United States as a party defendant. The attorney-general, in proposing The United wish to be a party. to intervene here to protect the interests of the United States,' to quote the language of the report, desires to do so, not as a technical party; not as joining with the one does not or the other party; not in subordination to the mode of conducting the complaint or defence adopted by the one State or by the other, not subject to the consequences of their acts, or of any possible mispleading, insufficient pleading, omission to plead, or admission or omission of fact by either or both; but free to co-operate with, or to oppose both, or either, and to bring forth all the points of the case according to its own judgement, whether as to the law or to the facts; for ex facto oritur jus.' 1 Mr. Cushing stated that the change of boundary might affect the interest of the United States, and insisted that the United States should not be prejudiced by mistakes in the conduct of the case, which it could not correct if it did not intervene. He also called attention to the fact that the public lands within the State of Florida were reserved to the United States without taxation by the State, and that, if that portion of Florida were declared to belong to Georgia, the United States might be prejudiced because of the transfer of the sovereignty; and that, finally, it was not impossible that the two States might' by their own acts, by pleadings, or their agreement entered of record in the suit, change the true and lawfully established boundary between them to the direct prejudice of the interests, rights, and laws of the United States '.2 The burden of proof was upon Mr. Cushing to support the motion which he had made, and the main lines of his argument have been stated in order to disclose its nature. It does not seem to be necessary to follow counsel in their contentions, as all aspects of the case are dealt with in the opinion of the Court and in the dissenting opinions of Justices Curtis and Campbell. The Chief Justice, after stating the motion Decision of the Attorney-General for leave to be heard in behalf of the United States in the boundary dispute between the two States, proceeds to state briefly what the Court mitting considered to be the facts and the ground for the motion, saying on this point: of the Court ad the intervention. The attorney-general has filed an information, stating that the United States are interested in the settlement of this line; that the territory in dispute contains upwards of one million two hundred thousand acres of land, and was ceded to the United States by Spain as a part of Florida; and that the United States have caused the whole of it to be surveyed as public land and sold a large portion of it, and issued patents to the purchasers. And upon these grounds he asks leave to offer proofs to establish the boundary claimed by the United States, and to be heard, in their behalf, on the argument.3 The Chief Justice calls attention to the fact that the motion was resisted by Florida and Georgia and that the question was very fully argued by counsel of the respective parties. He next says that the Court had taken time to consider, as it was in some degree a new question, and that it concerned 'rights and interests of so much importance'. The meaning of the Chief Justice that the case was in some respects new was due to the fact that it is familiar practice for the Court to hear the Attorney-General in suits between individuals, upon the suggestion that public interests are involved in the decision, and in such cases the Attorney-General is heard not for or against one 1 State of Florida v. State of Georgia (17 Howard, 478, 482-3). 3 Ibid. (17 Howard, 478, 491). |