answer or demur. At the following term in January, 1835, a plea and answer were filed. At the January term, 1836, an agreement was made by the counsel in the cause, that the complainant should file a replication within six months. This was done; and in 1837 the application of one of the counsel for the complainant for a continuance was opposed, and was argued by the counsel for the state of Massachusetts. Thus the whole action of the counsel for the defendant was such as a party fully before the court would adopt and pursue. There was no question made as to the jurisdiction. The appearance was not followed by a motion to dismiss the bill on that ground; nor was the general appearance explained by its being followed by such a motion. After all these proceedings on behalf of the state of Massachusetts, and after the lapse of four years from the appearance of the state, by the authority of the governor, giving full power to counsel to act in the cause, a motion to dismiss the cause, for want of jurisdiction, was made by the state of Massachusetts, and was argued. This motion having failed, the Court are now asked to consider the case as if Massachusetts had not appeared; and as if process had not been issued in the cause.1 Like his colleague, he adverted to the procedure to be followed in suits between private parties, as there was as yet no direct ruling of the Court that the appearance of the State was voluntary, that it could not be compelled, and that, therefore, it might withdraw from the case at its pleasure; and as this phase of the case was of first impression, it is of interest also to state his reasoning in support of the contention. Thus : It appears, that upon a statement of the case, no further reply to the application on the part of the state of Massachusetts is necessary. The purpose of it is to avoid the effect of the judgment of this court on the motion to dismiss the bill, to withdraw from the cause. This could not be done in a private case; and why should it be allowed in a case between states? The counsel seems to found his motion on something in the case, by which it would appear that if no appearance had been entered, the court would not have taken jurisdiction of the cause; and desires, therefore, to put herself in the situation he would have been in had he not appeared. Suppose, a demurrer to this jurisdiction had been put it, could the party, after the question had been argued, and decided against the demurrer, move to dismiss the case for want of jurisdiction. This was never heard of. As Mr. Webster had made the motion, and as the counsel for the plaintiff had been heard, it was his right to close the argument, which he did as adroitly as he had begun it, and put the very question to the Court which it would have preferred not to decide, whether the appearance of a defendant is voluntary or whether it can be compelled; because, if voluntary, Massachusetts could withdraw a voluntary act, if compulsory, it could not. The question was squarely raised, and though very respectful in his language, Mr. Webster was very determined to have it settled, without, however, binding his State to any course of conduct. 'Is it considered', he asked, 'that this Court has a right to issue process against a state; and that it is the duty of the State to obey the process? If this is so, there is an end of the motion. But if the right of the Court to issue process is not determined, and yet the process has been issued, and the state of Massachusetts has come in, and has appeared; although there was no right to issue the process, the state should sustain no prejudice from having appeared for the purpose of having the question of jurisdiction settled. It is yet to be determined, whether the Court can issue process against a state; and Massachusetts is not to be entrapped by anything done by her, before this shall be 1 State of Massachusetts v. State of Rhode Island (12 Peters, 755, 757-8). Leave to decided. If the state of Massachusetts, from respect to the Court, has appeared, she asks the Court to say that there is a right to issue process against a state, and she will obey; but if wrongfully issued, she asks that she shall not be affected by what she has done.' 1 The Court complied with Mr. Webster's request, and Mr. Justice Thompson withdraw delivered the opinion of the Court admitting his contention. After stating the nature of the motions before the Court, the learned Justice proceeded to say: appear ance granted by the Court. Precedents examined. The motion, on the part of the state of Massachusetts, to withdraw the appearance heretofore entered, seems to be founded on what is supposed to have fallen from the Court at the present term, in the opinion delivered upon the question of jurisdiction in this case. It is thought that opinion is open to the inference that jurisdiction is assumed, in consequence of the defendant's having appeared in the cause. We did not mean to put the jurisdiction of the Court upon that ground. It was only intended to say, that the appearance of the state, superseded the necessity of considering the question whether any and what course would have been adopted by the Court, if the state had not appeared. We certainly did not mean to be understood, that the state had concluded herself on the ground that she had voluntarily appeared; or that if she had not, we could not have assumed jurisdiction of the case. But being satisfied that we had jurisdiction of the subject matter of the bill, so far at least as respected the question of boundary, all inquiry as to the mode and manner in which the state was to be brought into Court, or what would be the course of proceeding if the state declined to appear, became entirely unnecessary. But as the question is now brought directly before us, it becomes necessary to dispose of it. We think, however, that the course of decision in this Court, does not leave us at liberty to consider this an open question.2 Mr. Justice Thompson then takes up the suits against states brought by individuals and states, and from their examination he comes to the conclusion that the question before the Court is not an open one, and that it has already been settled as a matter of practice. Inasmuch as this question is fundamental in suits between States of the American Union, and vital in suits between nations in the court of the society, the reasoning leading to this conclusion, which has done so much to remove the prejudice on the part of the States to the Court, and upon which it is believed the establishment of an international court of a like kind depends, will be rather fully stated, although it may seem to be in the nature of a repetition. The first case to be considered was the second in the series of New Jersey v. New York, which the learned Justice thus analysed : In the case of the State of New Jersey v. State of New York, 5 Peters, 287, this question was very fully examined by the Court, and the course of practice considered as settled by the former decisions of the Court, both before and after the amendment of the constitution; which declared, that the judicial power of the United States shall not extend to any suit in law or equity, commenced or prosecuted against a state, by citizens of another state, or subjects of any foreign state. This amendment did not affect suits by a state against another state; and the mode of proceeding in such suits, was not at all affected by that amendment.3 After showing that the decision of that case, delivered by Mr. Chief Justice 1 State of Massachusetts v. State of Rhode Island (12 Peters, 755, 758-9). matters, he pointed out wherein the case was an advance upon its predecessors, saying: And the Court went a step farther, and declared what would be the course of proceeding in a stage of the cause, beyond which former decisions had not found it necessary to prescribe such course. The Court, in the case of New Jersey v. New York, commence the opinion, by saying: This is a bill filed for the purpose of ascertaining and settling the boundary between the two states.' And this is precisely the question presented in the bill now before us. And it is added, that congress has passed no act for the special purpose of prescribing the mode of proceeding in suits instituted against a state. The precise question was, therefore, presented, whether the existing legislation of congress was sufficient to enable the court to proceed in such a case; without any special legislation for that purpose. And the Court observed, that at a very early period of our judicial history; suits were instituted in this Court, against states; and the questions concerning its jurisdiction were necessarily considered.1 The learned Justice here draws and states the results of the early cases, so that, re-enforced by their authority, as far as it went, the Court might take, as it did, the next step, and decide the very question which it believed these cases involved, but which had not been expressed in clear and unmistakable terms, because it was not then necessary to do so. Thus, the learned Justice continued: An examination of the acts of congress, in relation to process and proceedings, and the power of the Court to make and establish all necessary rules for conducting business in the Courts, is gone into, and considered sufficient to authorize process and proceedings against a state; and the Court adopted the practice prescribed in the case of Grayson v. The Commonwealth of Virginia, 3 Dall. 320, that when process in common law or in equity shall issue against a state, it shall be served on the governor, or chief executive magistrate, and the attorney general of the state. The Court, in that case, declined issuing a distringas, to compel the appearance of the state; and ordered, as a general rule, that if the defendant, on service of the subpoena, shall not appear at the return day therein, the complainant shall be at liberty to proceed ex parte.2 The learned Justice then stated, in the following passage, that the practice laid down in this case, which specifically refused, upon request of counsel, to compel appearance, ' has since been to proceed ex parte, if the state does not appear. And accordingly, in several cases, on the return of the process, orders have been entered, that unless the state appear by a given day, judgement by default will be entered. And further proceedings have been had in the causes. In the case of Chisholm's Executors v. The State of Georgia, 2 Dall. 419, judgement by default was entered, and a writ of inquiry awarded in February term 1794. But the amendment of the constitution prevented its being executed. And in other cases, commissions have been taken out for the examination of witnesses '.3 After this statement, by way of introduction, the learned Justice next states the practice, as he supposes it to be at the date of the case in hand, in order to have the decision which he is to announce on behalf of the Court appear to rest upon and to spring out of these precedents, however meagre they may seem to us to-day. By such proceedings, therefore, showing progressive steps in cases towards a final hearing, and in accordance with this course of practice; the Court, in the case 1 State of Massachusetts v. State of Rhode Island (12 Peters, 755, 760). 2 Ibid. (12 Peters, 755, 760). 3 Ibid. (12 Peters, 755, 760-1). Coercive process not to be taken against States. Hesitation of Massa of New Jersey v. New York, adopted the course prescribed by the general order made in the case of Grayson v. The Commonwealth of Virginia; and entered a rule, that the subpoena having been returned, executed sixty days before the return day thereof, and the defendant having failed to appear, it is decreed and ordered, that the complainant be at liberty to proceed ex parte; and that, unless the defendant, on being served with a copy of this decree, shall appear and answer the bill of the complainant, the Court will proceed to hear the cause on the part of the complainant, and decree on the matter of the said bill. So that the practice seems to be well settled, that in suits against a state, if the state shall refuse or neglect to appear, upon due service of process, no coercive measure will be taken to compel appearance; but the complainant, or plaintiff, will be allowed to proceed ex parte.1 With the solemn determination of the Court that coercive measures would not be taken to compel the appearance of a state by force, it necessarily followed that the counsel of Massachusetts could come or go as he pleased. But the Court evidently had the feeling that states, like individuals, are often so pleased with the recognition of a right that they fail to exercise it, and that it was not to be expected that Massachusetts would, upon reflection, withdraw from the case. Therefore, in the concluding passage of the opinion, Mr. Justice Thompson contemplated the procedure to be followed if Massachusetts did not withdraw, thereby making it easier for the State whose amour propre had been soothed to remain in Court. Thus he said: If, upon this view of the case, the counsel for the state of Massachusetts shall elect to withdraw the appearance heretofore entered, leave will accordingly be given; and the state of Rhode Island may proceed ex parte. And if the appearance is not withdrawn, as no testimony has been taken, we shall allow the parties to withdraw or amend the pleadings; under such order as the court shall hereafter make.2 It may be noted that Mr. Justice Baldwin dissented, without, however, stating the grounds of his dissent, and that Mr. Justice Story did not sit in the case. 12. State of Rhode Island v. State of Massachusetts. As so often happens, there was a lull after the storm. Massachusetts was not quite sure of the course it was to pursue. Mr. Webster was in doubt as to his right chusetts. to appear, as he did not consider himself authorized further to represent the State. As, however, Rhode Island had a right, under the practice of the Court, and indeed by its express permission in this case, to proceed ex parte if Massachusetts withdrew its appearance, Mr. Webster evidently thought it unsafe to allow the little State to have its own way; and that it was to the interest of Massachusetts to keep in touch with counsel for the plaintiff. He therefore appeared, apparently representing himself. The official report of the case, however, does not leave us in doubt as to the reason for Mr. Webster's actions, and it does not require any great degree of imagination to divine his motives. If, however, we should be in doubt, the opening sentence 1 State of Massachusetts v. State of Rhode Island (12 Peters, 755, 761). of the official report of this phase of the case is of the nature to clear it up. Thus, Mr. Southard, for the complainants, stated: that the state of Rhode Island, with the consent of the Court, obtained at last term, Applicahad amended the bill filed in this case; and he moved the court for a rule on the state of Massachusetts to answer within a short time, so that the case might be disposed of during the term.1 Perhaps Mr. Southerd's directness of expression was designed to call Mr. Webster to his feet-who had done little more than stray into the Court-and if so it succeeded, because, to quote the language of the report: Mr. Webster stated, that, although not authorized to appear in the case, he thought it proper to say that the opinions of the Court delivered at the last term in this cause had been submitted to the government of Massachusetts. It was a short time before the adjournment of the legislature of the state that they were communicated to them. The subject will be again presented by the governor to the legislature, at the session now held; and it is expected, that some action upon it will take place. In the posture in which the case stood at the last term of this Court, the attorney general of the state of Massachusetts has not thought it proper to do anything. The movements of such bodies, as the defendants in this case, are slow.2 Taking advantage of this turn of affairs, which had no doubt been anticipated, Mr. Hazard expressed a willingness to have Massachusetts answer; but, coming from a very small State, indeed, the smallest State of the American Union, whose smallness was due, as he alleged, in part to the action of Massachusetts, he was not as impressed with the slowness of movement, although he may have been by the majesty, of the State of Massachusetts. He therefore stated that he had no objection to an allowance of time for the defendants to answer, but, to quote the language of the official report,' he did not think that the slow movements of such bodies should be allowed, when other parties are concerned'. He therefore, somewhat unfeelingly, as Mr. Webster might have said, asked that a time for the filing of an answer by the state of Massachusetts' be definitely fixed'. tion by Rhode Island to expedite the case. of the Court further On this state of affairs Mr. Chief Justice Taney delivered the judgement of the Decision Court, allowing Massachusetts time within which to determine whether it would withdraw its appearance or answer the amended bill of the plaintiff, overruling the granting motion of the complainant that the answer be filed at such time as to enable the case time to to be heard and determined in the present term of the Court, but setting a date when Massathe answer, if Massachusetts was minded to answer, should be presented, and the chusetts. case made ready for the next step forward. This date was the next term of Court. In his opinion Mr. Chief Justice Taney calls attention to the fact that, although permission had been given to the complainant at the last term of Court to file an amended bill, the amended bill had only been filed on the second day of the present term, that the defendant could not have answered it, and that it was not and could not be in default. The one question, therefore, for the Court to determine was the time to be given to the defendant, and on this point the learned Chief Justice said: From the character of the parties, and the nature of the controversy, we cannot, without committing great injustice, apply to this case the rules as to time, which govern Courts of Equity in suits between individuals. In the last mentioned cases, 1 State of Rhode Island v. State of Massachusetts (13 Peters, 23). a Ibid. (13 Peters, 23). |