one decision to the contrary, from the time of Edward the Third. The statute referred to, operated like our constitution to make all questions judicial, which were submitted to judicial power, by the parliament of England, the people or legislature of these states, or congress: and when this has been done by the constitution, in reference to disputed boundaries, it would be a dead letter if we did not exercise it now, as this Court has done in the cases referred to.1 Calling attention to objections of a minor importance, which the Court brushed aside-such as that, by the Declaration of Independence, Massachusetts became an independent State and was not to be disturbed in the enjoyment of the territory whereof she was possessed; that the inhabitants of the disputed territory ought to be made parties to the bill, as their rights were affected; and that the Court could not proceed in the case without a prescribed process and rule of decision appropriate The ques- thereto Mr. Justice Baldwin took up the last objection, that though the Court may render, they cannot execute a decree without an act of congress in aid '. This, of course, presented a difficulty, but it was not insuperable in the mind of the Justice, and, following in the footsteps of his predecessors, he contented himself with general observations, leaving that bridge to be crossed when the parties reached it in the course of their case. Thus, he said: tion of execution. to be followed. In testing this objection by the common law, there can be [no] difficulty in decreeing as in Penn v. Baltimore, mutatis mutandis. That the agreement is valid and binding English between the parties; appointing commissioners to ascertain and mark the line practice therein designated; order their proceedings to be returned to the Court; 3 Dall. 412, note; decree that the parties should quietly hold according to the articles; that the citizens on each side of the line should be bound thereby, so far and no farther than the state could bind them by a compact, with the assent of Congress, II Peters 209; 1 Ves. sen. 455; 3 Ves. sen., Supplement by Belt. 195, 197. Or if any difficulty should occur, do as declared in 1 Ves. sen.; if the parties want anything more to be done, they must resort to another jurisdiction, which is appropriate to the cause of complaint, as the king's bench, or the king in council. Vide United States v. Peters, 5 Cranch 115, 135, case of Olmstead; make the decree without prejudice to the (United States,) or any persons whom the parties could not bind. And in case any persons should obstruct the execution of the agreement, the party to be at liberty, from time to time, to apply to the Court. I Ves. jr. 454; 3 Ves. sen. 195, 196. Or, as the only question is one of jurisdiction, which the court will not decide, they will retain the bill, and direct the parties to a forum proper to decide collateral questions. I Ves. sen. 204, 205; 2 Ves. sen. 356, 357; I Ves. sen. 454; 5 Cranch 115, 136. On the other hand, should the agreement not be held binding, the Court will decree the boundary to be ascertained agreeable to the charters, according to the altered circumstances of the case; by which the boundary being established, the rights of the parties will be adjudicated, and the party in whom it is adjudged may enforce it by the process appropriate to the case, civilly and criminally, according to the laws of the state, in which the act which violates the right is committed. In ordinary cases of boundary, the functions of a court of equity consists in settling it by a final decree, defining and confirming it when run. Exceptions, as they arise, must be acted on according to the circumstances.3 Recognizing, however, that more than individuals were involved, that States were before the Court and to be bound by its decision, the learned Justice appreciated that coercion appropriate to the individual was not appropriate to the State. He therefore called attention to the fact that, 'in England, right will be administered 1 State of Rhode Island v. State of Massachusetts (12 Peters, 657, 748). to a subject against the king, as a matter of grace; but not upon compulsion, not by writ, but petition to the chancellor (1 Bl. Com. 243).' After the discussion of English practice, briefly summarized in the quotation, Mr. Justice Baldwin continues and thus concludes the opinion of the Court in this fundamental decision, which is as a landmark in the judicial settlement of international disputes: the Court The same principle was adopted by the eminent jurists of the revolution, in Concluthe ninth article of the confederation, declaring that the sentence of the court, in the sions of cases provided for, should be final and conclusive, and with the other proceedings upholdin the case, be transmitted to congress, and lodged among their acts, for the security ing jurisof the parties concerned, nothing further being deemed necessary. The adoption diction. of this principle, was indeed a necessary effect of the revolution which devolved on each state the prerogative of the king as he had held it in the colonies; 4 Wheat. 651; 8 Wheat. 584, 588; and now holds it within the realm of England; subject to the presumptions attached to it by the common law, which gave, and by which it must be exercised. This Court cannot presume that any state which holds prerogative rights for the good of its citizens, and by the constitution has agreed that those of any other state shall enjoy rights, privileges, and immunities in each, as its own do, would either do wrong, or deny right to a sister state or its citizens, or refuse to submit to those decrees of this Court, rendered pursuant to its own delegated authority; when in a monarchy its fundamental law declares that such decree executes itself.1 Such is the decision of the Supreme Court of the United States on the question of jurisdiction involved in the liberally argued case of Rhode Island v. Massachusetts (12 Peters, 657), in which the Court, after prolonged deliberation and a proper sense of the importance of the case and an appreciation of its own responsibility in the premises, assumed jurisdiction; and, as in the case of ordinary litigants before its bar, overruled the motion of the defendant. It is to be noted that Mr. Chief Justice Taney dissented on the ground that the case was political, not judicial, and that Mr. Justice Story, as a citizen of Massachusetts, took no part in the decision. ion of In Mr. Chief Justice Taney's view the case was political, nor judicial, and because Dissentof that fact the Court should not take jurisdiction, inasmuch as to do so would not, ing opinin his opinion, be a proper exercise of the judicial power with which alone the tribunal Chief over which he presided was vested. He briefly expressed his views, reserving the Justice Taney right to elaborate upon them at the final disposition of the case. After analysing the bill of complaint in this case, Mr. Chief Justice Taney thus stated his conviction that the matter was political and that the Court should not, and indeed that it could not, accept jurisdiction: case was It appears from this statement of the object of the bill, that Rhode Island claims on the no right of property in the soil of the territory in controversy. The title to the land ground is not in dispute between her and Massachusetts. The subject matter which Rhode that the Island seeks to recover from Massachusetts, in this suit, is sovereignty and jurisdic- political, tion', up to the boundary line described in her bill. And she desires to establish this not judiline as the true boundary between the states, for the purpose of showing that she is cial. entitled to recover from Massachusetts the sovereignty and jurisdiction which Massachusetts now holds over the territory in question. Sovereignty and jurisdiction are not matters of property; for the allegiance in the disputed territory cannot be a matter of property. Rhode Island, therefore, sues for political rights. They are the only matters in controversy, and the only things to be recovered; and if she 1 State of Rhode Island v. State of Massachusetts (12 Peters, 657, 751). succeeds in this suit, she will recover political rights over the territory in question, which are now withheld from her by Massachusetts. Contests for rights of sovereignty and jurisdiction between states over any particular territory, are not, in my judgment, the subjects of judicial cognizance and control, to be recovered and enforced in an ordinary suit; and are, therefore, not within the grant of judicial power contained in the constitution.1 After referring to the opinion of Chief Justice Ellsworth in the case of New York v. Connecticut (4 Dallas, 4), decided in 1799, in which that learned judge said that a court of equity would not enter a decree in a matter of political jurisdiction, but only if a right of the soil were involved, and to the opinion of Chief Justice Marshall in delivering the opinion of the Court in Cherokee Nation v. Georgia (5 Peters, 20), decided in 1831, in support of his view that the Court could not and should not entertain a suit of a political character, as Mr. Chief Justice Marshall and the majority of the Court considered that case to be in part if not in its entirety, Mr. Chief Justice Taney continued and concluded: In the case before the Court, we are called on to protect and enforce the ' mere political jurisdiction of Rhode Island; and the bill of the complainant, in effect, asks us to control the legislature of Massachusetts, and to restrain the exercise of its physical force', within the disputed territory. According to the opinions above referred to, these questions do not belong to the judicial department. This construction of the constitution is, in my judgment, the true one; and I therefore think the proceedings in this case ought to be dismissed for want of jurisdiction.2 Mr. Justice Barbour held an intermediate position between that of the Chief Justice and the majority of the Court, stating that he concurred in the result, but he wished to be understood, as not adopting all the reasoning by which the Court had arrived at its conclusion.' 3 II. State of Massachusetts v. State of Rhode Island. The matter of jurisdiction having been settled, and the case being on its pleadings before the Court, the next step would naturally be to set a day convenient to counsel and to the Court for the hearing of the case, which in this stage would be devoted to Desire of a consideration of the sufficiency of the pleadings; but Massachusetts was apparently Massa chusetts to avoid a final judgement. unwilling to proceed with the case to a final judgement, if it could be avoided. It had objected to the jurisdiction of the Court and, as will be seen, it took advantage of technical objections to the pleadings in order to prevent a hearing upon the merits and a decision in accordance with the case as made out; and, in the interval between these two phases, construing to its advantage some expressions that fell from Mr. Justice Baldwin in the course of his opinion, that the voluntary appearance of Massachusetts was in itself a submission to the jurisdiction, and an admission on the part of the State of the jurisdiction of the Court. Mr. Webster, on behalf of Massachusetts, apparently willing to continue the case if he had to, but unwilling to prejudice his client by continuing if he could withdraw the appearance voluntarily entered, and thus leave his State in the condition it would have been had Massachu 1 State of Rhode Island v. State of Massachusetts (12 Peters, 657, 753). setts not appeared; that is to say, with the plaintiff alone in Court, authorized to proceed ex parte if the Court should follow the precedents set in previous cases. He Applicatherefore moved for leave to withdraw the plea filed on the part of Massachusetts, infor and also the appearance of the State in the cause of action. tion for withdraw ance. Mr. Hazard, on behalf of Rhode Island, likewise sought to better the condition appear. of his client, not by withdrawing its appearance, because that would be a dismissal of the case, but by amending the pleadings, owing to the discovery of some further proof of value to his State and in the light of the experience he had in the trial of He moved, therefore, for leave to withdraw the general replication to the defendant's plea in bar and answer, and to amend the original bill-the result of which would enable Rhode Island to make, as it were, a restatement of its case, although still along the original lines. Mr. Webster's motion was very adroitly framed and supported in argument, for he knew the importance of the point he had raised, and he must have felt the unwillingness of the Court to decide either that it had a right to compel the appearance of a State, or that it did not possess this right. For this question was squarely raised by the motion. It had to be met by the Court. It was met by the Court, and the decision then taken has since been adhered to. Mr. Webster's argument in support of his motion is thus stated, according to the official report: Mr. Webster, in support of his motion, stated, that the governor of the state of Massachusetts had given him authority to represent the state; and to have it determined by the Court, whether it had jurisdiction of the case. This authority is dated November 30th, 1833. It directs him to object to the jurisdiction, and to defend the cause. The appearance of Massachusetts was voluntary; it was not intended, by the appearance, to admit the validity of the proceeding, or the regularity of the process. It was not supposed, that the state of Massachusetts would sustain any prejudice by this course. If the Court had no jurisdiction in the matter set out in the bill, the appearance of the state represented by him would not give it. It was thought most respectful to the Court, and proper in the cause, to file the plea with an intention to move the question of jurisdiction, at a subsequent time. Nothing has been done by the state of Massachusetts since; and this Court has determined not to dismiss the bill of the complainants. The Court has given an opinion in favour of their jurisdiction in the case. the course of the argument, it appeared, that certain difficulties, which might have existed in the case, had been removed by the appearance and plea; that jurisdiction was affirmed by the appearance and plea. It was said, if the question was on the bill only, the situation of the case might be different. There is a great deal, from which it may be inferred, that if Massachusetts had stood out, contumaciously, there would be no authority in the Court to proceed against her in this case. But it was not for that state to stand off, and put the Court at defiance. If, then, the state, by considerations of respect; if from a desire to have the question of jurisdiction settled, Massachusetts has appeared; this Court will not permit advantage to be taken of such an act, induced by such motives, and for such a purpose.1 With this guarded and wary statement, most respectful for the dignity of the Court but solicitous for the rights of his client, Mr. Webster then stated in apt terms the desire of Massachusetts to withdraw its appearance, without, however, prejudicing the cause in case Massachusetts should decide not to avail itself of the permission, if permission should be given. He was apparently reluctant, perhaps unwilling, to 1 State of Massachusetts v. State of Rhode Island (12 Peters, 755, 755–6). Motion opposed Island. withdraw; yet, as we all recall incidents of our childhood, he would like to be coaxed to remain. Thus : It is the desire of the counsel for the state of Massachusetts to withdraw the plea and appearance; and to place the case in the same situation as it would have been, had there not been process. If a fair inference may be made, that the state has appeared to the process of the court, leave is asked to withdraw the appearance. It will be determined, hereafter, what course will be pursued by the state of Massachusetts.1 Naturally, this state of affairs was embarrassing to counsel for Rhode Island, by Rhode and only less annoying than the surprise experienced by the objection, made in open court, to the jurisdiction in the previous case, and the refusal of the counsel of Massachusetts, in that phase of the case and under those circumstances, to supply counsel for Rhode Island in writing with the grounds of their motion. Mr. Hazard was very anxious to prevent the withdrawal of the appearance. He was also unwilling to lose the advantage of the pleadings already on file in the Court; and as this part of the case, like so many others, was one of first impression, he clung rather closely to the letter of the law in such matters, as its spirit would not advance the interests of his client. He insisted that, in suits between individuals, the appearance of the party was 'a waiver of all the errors of the proceeding', and he cited a decision of the Supreme Court to the effect that the appearance of a party beyond the jurisdiction of the Court gave the Court the right to proceed.2 Passing then to the immediate question, he said, according to the official report : The authority given by the governor of the state of Massachusetts, which is on record in this case, is ample to all the purposes of this suit. It is an authority to appear and defend the case, and to object to the jurisdiction.3 This being so, he asked if the counsel could disappear, and, worst of all, could he carry the plea with him? Thus : Can the counsel of the state disappear? If they do, they can carry nothing with them. The argument which was submitted to the Court, on the motion to dismiss this cause, precludes this. They can not disappear, and carry the plea with them. And he concludes with a technical objection to the effect that the two parts of which Mr. Webster's motion consists are contradictory, in that the withdrawal of the plea is consistent with the maintenance of the appearance, and the motion to withdraw the appearance amounts to a liberation from process after having appeared. Mr. Southard also argued the point on behalf of Rhode Island, and, approaching the question from a standpoint somewhat different from Mr. Hazard's, re-enforced his contention, without, however, making it prevail. He clearly and accurately stated the question to be whether after appearance, plea, and answer; the party can withdraw from the cause, and the cause stand as if no appearance had been entered '.5 In order to show the position in which this would leave the case, and indeed to question the motives of Massachusetts, he recounted the proceedings already had and the steps which Massachusetts had successively taken. Thus, he said: The appearance of the counsel for the state of Massachusetts, was general; and it was followed by an application for a continuance, and for leave to plead, a Ibid. (12 Peters, 755, 756—7). 1 State of Massachusetts v. State of Rhode Island (12 Peters, 755, 756). |