lack of knowledge or to justify the lack thereof respecting the original boundary. The court considered the matter doubtful, as the point could have been located three miles south of the Charles River itself, or three miles south of a branch thereof, which could, for purposes of boundary, be considered the Charles River. The court, therefore, felt itself justified in looking to the acts of the parties to ascertain their interpretation of the charters when it was called in question. The fact of a want of this knowledge,' Mr. Justice McLean said, 'after the lapse of more than a century and a quarter, is difficult to establish ;'1 and he proceeded to state that a more recent mistake would have vitiated the agreement between the parties, saying on this point :

It may be a matter of doubt, whether a mistake of recent occurrence, committed by so high an agency in so responsible a duty, could be corrected by a court of chancery. Except on the clearest proof of the mistake, it is certain there could be no relief. No treaty has been held void, on the ground of misapprehension of the facts, by either or both parties.2

But whether this would or would not be sound doctrine between individuals, there is more to be said for it between states, where certainty of boundary is even more important than accuracy of the line, in order to prevent frontier incidents, which often result into war.

As was to be expected, Mr. Justice McLean, on behalf of the court, made an elaborate statement of the facts of the case, inasmuch as it was necessary so to do in order to justify the decree in so far as it depended upon fact; and he likewise made a careful summary of the complainant's contentions, inasmuch as it was necessary to state them, in order to test the principles upon which Rhode Island claimed its right of recovery. Necessary for the court, this is fortunately not necessary for this narrative, inasmuch as the facts and pleadings material to the case are either before the reader or within his reach. After having completed this portion of his task, difficult and far from inspiring, the learned Justice thus stated what the court considered to be the material contentions of the little State:

1. The misconstruction of the charter.

2. The mistake as to the true location of the Woodward and Saffrey station.

Upon these he comments:

the

If the first be ruled against the complainant, the second must fall as a consequence. And as regards the first ground, little need be added to what has already Construcbeen said. The charter is of doubtful construction, and may, without doing violence tion of to its language, be construed in favour of or against the position of the complainant. In this view, the construction of the charter of Massachusetts, assented to by the old colony of Plymouth, many years before Connecticut or Rhode Island had a political organization, is an important fact in the case.3

The learned Justice here states the contentions between Plymouth and Massachusetts, on the one hand, and with Connecticut and Rhode Island on the other, concluding thus:

Connecticut, after the lapse of many years, assented to the line run from the Woodward and Saffrey station as its boundary, and so did the complainant, in the most solemn agreements, as stated.1

1 State of Rhode Island v. State of Massachusetts (4 Howard, 591, 635). Ibid. (4 Howard, 591, 635). 3 Ibid. (4 Howard, 591, 636).

Ibid. (4 Howard, 591, 637).

charter.

Conduct

of the parties.

The

question of mis

take.

Mistake not proved.

This phase of the case seemed very important to the Court, for, in the case of a doubtful character or of two possible interpretations, each consistent with its terms, the actions of the parties, and, indeed, of other parties in relation to them, is of importance, especially when the very cause of the interpretation in each case was a dispute as to the boundary, and as the agreement reached in each was intended to end it. These proceedings', in the language of the court, 'conduce strongly to establish a fixed construction of the charter, favorable to the respondent, unless it be clearly made to appear that they were founded on mistake or fraud.'1 The element of fraud could be eliminated as the court found that it was not charged, and the court therefore only had to inquire into and to consider the alleged mistake.2 The supposed mistake was scarcely susceptible of proof, and in an earlier portion of his opinion, after setting forth the agreements had between the parties, the learned Justice concluded that 'the fact of a want of this knowledge, after the lapse of more than a century and a quarter, is difficult to establish. It certainly cannot be assumed against transactions which strongly imply, if they do not prove, the knowledge. If the Rhode Island commissioners were misled in the first agreement, as to the locality of this station, it almost surpasses belief, that, seven years afterwards, the subject of the line having been discussed in Rhode Island, and such dissatisfaction being shown by the people as to lead to a new commission, the second commission should again be misled '.3

But even admitting the mistake, the court doubted, as already mentioned, whether a mistake of recent origin should be corrected by a court of chancery, committed as it was by an agency in so responsible a duty.

But the real ground for the decision was that the controversy was between two states, alleging themselves, in the matter of justice, to be sovereign. Consequently, remedies appropriate to individuals would be scrutinized before applying them, without modification, to the claims of states; and a political status depending upon them would not be set aside or modified, unless the facts and the principles of law applicable compelled rather than that they justified it. This phase of the question pervades the case; indeed, it was the case, and it was ever before the eyes of the judges and even upon their lips. Thus, after speaking of the question of mistake, Mr. Justice McLean proceeds, speaking for the august tribunal of which he was a member:

This dispute is between two sovereign and independent states. It originated in the infancy of their history, when the question in contest was of little importance. And fortunately steps were early taken to settle it in a mode honorable and just, and one most likely to lead to a satisfactory result. There is no objection to the joint commission in this case, as to their authority, capacity, or the fairness of their ceedings. An innocent mistake is all that is alleged against their decision. And as has been shown, this mistake is not clearly established, either in the construction of the charter, or as to the location of the Woodward and Saffrey station. But if the mistake were admitted as broadly and fully as charged in the bill, could the court give the relief asked by the complainant ? 4

Perhaps it might, as between private parties, but the authority of a very great man was invoked to show that it would not or should not, in a controversy between

1 State of Rhode Island v. State of Massachusetts (4 Howard, 591, 637).

Bill dismissed, 1846.

And with a reference to the effect of time, forming if it does not create title and moulding all things to its will, Mr. Justice McLean continues and thus ends this historical and hope giving case, a landmark in the long way from self-redress to judicial settlement through the intervention of the bystander, arbiter, umpire, Court: No human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade with lapse of time, and fall with the lives of individuals. For the security of rights, whether of states or of individuals, long possession under a claim of title, is protected. And there is no controversy in which this great principle may be involved with greater justice and propriety than in the case of disputed boundary.

The state of Rhode Island, in pursuing this matter, has acted in good faith and under a conviction of right. Possessing these elements, in an eminent degree, which constitute moral and intellectual power, it was perseveringly and ably submitted its case for a final decision.

The bill must be dismissed.1

Exercising the right which he had reserved, to express his opinion at fuller length, should it be necessary on the final disposition of the controversy between Rhode Island and Massachusetts, in which he had taken part, and on two occasions had delivered the opinion of the court in the matter of pleadings, Mr. Chief Justice Taney contented himself with a brief statement of his views which reflection had confirmed, inasmuch as he found himself in accord with the decision of the court dismissing the bill, although, in his opinion, it should have been dismissed for lack of jurisdiction, not at final hearing upon the merits. In the course of his very brief remarks, rather than opinion, Mr. Chief Justice Taney said:

Opinion Deciding the case, so far as I am concerned, upon this point, I of course express of Chief no opinion upon the merits of the controversy; and have not even deemed it necesJustice Taney sary to be present at the elaborate arguments upon the evidence which have been denying made at the present term. For if Rhode Island had proved herself to be justly and jurisdic- clearly entitled to exercise sovereignty and dominion over the territory in question, and the people who inhabit it, yet my judgment must still have been, that the bill should be dismissed, upon the ground that this court, under the Constitution of the United States, have not the power to try such a question between States, or redress such a wrong, even if the wrong is proved to have been done.2

tion.

It may be said, however, in this connexion, that although the views he entertained in that case had been confirmed by subsequent reflection, more prolonged reflection finally led him to concur in the exercise of jurisdiction, and indeed to deliver the opinion of the court in boundary disputes involving precisely the same principles as in Rhode Island v. Massachusetts. And these opinions, although not so elaborate as that of Mr. Justice Baldwin entertaining jurisdiction, from which the Chief Justice dissented, are referred to in the same connexion and in support of the jurisdiction of the Supreme Court. The conversion of Chief Justice Taney may not have been that of the man pointed out by the satirist—

And finds with keen, discriminating sight

Black 's not so black-nor white so very white. . . .

But the submission of personal judgement so noticeable in Anglo-American courts 1 State of Rhode Island v. State of Massachusetts (4 Howard, 591, 639).

of justice to the decision of the majority, and the development by association of that enlarged view that comes from intimate and daily contact with superior minds, are fortunately characteristic of courts of justice in general, whose members meet and co-operate in the administration of justice.

com

ments on

cases.

There are several points which we may well pause to consider as having been General determined by court and counsel, before proceeding to an examination of the second group of cases, the last of which involves the question of executing a judgement the first had against a state. In this first series, whose importance cannot be overstated, group of the nature of the jurisdiction of the court was established, the procedure to be followed devised, the means of securing the attendance of the defendant state and compliance with the judgement stated, and a method adopted by which, in the absence of a defendant state, the entire question could be laid before the court, argued, expressed in the form of a decree or a judgement, in order that public opinion might complete the work of justice where unaided reason was weak and physical force excluded.

The first question to be considered in this summary of results is that of jurisdiction. It was argued by court and counsel in the matter of Chisholm v. Georgia (2 Dallas, 419), but as the 11th amendment to the Constitution withdrew jurisdiction from the court in such cases it is advisable to omit reference to that very important but misleading case, and to base our observations upon that portion of the judicial power which has been declared by the court to exist, and which has neither been questioned nor withdrawn by amendment. But it is not necessary to enlarge, nor, indeed, to dwell upon this phase of the subject. It is sufficient to say that, in the ninth suit of State against State, excluding Cherokee Nation v. Georgia (5 Peters, 1), and in the third phase of Rhode Island v. Massachusetts (12 Peters, 657), the question of the jurisdiction of the Supreme Court in suits between States was elaborately, Jurisdicexhaustively, indeed exhaustingly considered and the jurisdiction of the court tion of established, as is the wont in English-speaking countries, by contending counsel estabdebating the question in a court of justice and by a judgement or decree of the court, instructed but not controlled by counsel.

With the decision of this phase of the case it was evident that, if all controversies that might arise between States were not specifically included in the grant of power, no one category was even impliedly excluded, always provided that the controversy was one to which the judicial power of the States could be extended-that is to say, one which, if referred to a court of justice, could be decided by a principle of law, becoming by the submission a judicial, although it has been previously a political question. Every succeeding case has built upon Rhode Island v. Massachusetts as a firm foundation, and it may be said, without disrespect to subsequent cases, that they are but variations and applications of the principle there established. They are indeed important, but their importance lies rather in the repetition of the principle than in any principle which they themselves lay down.

the Court

lished.

tion of

jurisdiction arises

The next point to be borne in mind, fundamental alike in national and inter- The quesnational jurisprudence, and inevitable in a court of limited jurisdiction such as the Supreme Court, and as an international court must necessarily be, is that, before assuming jurisdiction, the question of jurisdiction can be raised by counsel, and if not raised by counsel it must be decided by the court. The express language of Mr. Justice

in each

case.