THE STATE OF RHODE ISLAND v. THE STATE OF MASSACHUSETTS

Mr. Webster, of counsel for the state of Massachusetts, moved to dismiss the bill filed by the state of Rhode Island, on the ground that the Court had no jurisdiction of the cause.

The motion was argued by Mr. Austin, the attorney general of the state of Massachusetts, and by Mr. Webster, on the part of the state of Massachusetts; and by Mr. Hazard and Mr. Southard, for the state of Rhode Island.

Mr. Austin, in support of the motion:

This is an action by bill on the equity side of the Court, instituted by the state of Rhode Island against the state of Massachusetts.

The bill asserts the claim of Rhode Island to jurisdiction and sovereignty over a portion of territory, therein particularly described. The territory, so described, comprises between eighty and one hundred square miles, being a part of six townships, incorporated under the laws of Massachusetts, with a population of about five thousand persons, at present citizens of that state; and not less than five hundred thousand dollars of taxable property. But the bill makes no claim to any right of soil. It does not seek to disturb the title of the present possessors of the land, whose ancestors probably derived their title from the grants of the early government, in Massachusetts. It admits that the sovereignty and jurisdiction which it seeks to acquire, now is, and always, heretofore, from the first settlement of the country, have, in point of fact, been enjoyed and possessed, first by the colony, afterwards by the province of Massachusetts, and then by the state of Massachusetts, at the declaration of American independence, at the adoption of the constitution of the United States, and uninteruptedly to the present time; but avers that the territory over which jurisdiction and sovereignty are now demanded for Rhode Island, was not included within the boundary of the ancient colony of Massachusetts, in 1642, but was contained in the description of the limits of Rhode Island, as established by the charter of Charles the Second, made to her as a colony of Great Britain, in 1663; and by force of that charter, ought now rightfully to be enjoyed by her: but that Massachusetts wrongfully usurped jurisdiction and sovereignty over the territory thus claimed, and now possesses it, and has always possessed it without right.

The complainant therefore asks of this Court, that the northern boundary line between the complainant and the state of Massachusetts, may, by the order and decree of this honourable Court, be ascertained and established, and that the rights of jurisdiction and sovereignty of your complainant, may be restored and confirmed to the complainant; and your complainant may be quieted in the full and free enjoyment of her jurisdiction and sovereignty over the same; "and the title, jurisdiction and sovereignty of said state of Rhode Island be confirmed and established by the decree of this honourable Court, and that your complainant may have such other and further relief in the premises, as to this honourable Court shall seem meet, and consistent with equity and good conscience."

Among the allegations of the bill, it appears that a commission for the establishment of the partition line between the two colonies, was appointed by the respective local governments thereof; and that the commissioners on 19 January, 1710-11, agreed upon and established the line, as it now is, and always before had been known, possessed and established. But the complainant seeks for various causes which are in the bill enumerated, to set aside this agreement and adjudication of commissioners, as null and void.

The respondent has filed a special plea in bar, to the complainant's demand, grounded on the arbitration, award and settlement made by those commissioners; and a constant and uninterrupted possession under it for more than a century: and has answered in full all the allegations by which the complainant seeks to vacate this award. And the respondent well hoped it would have been the pleasure of Rhode Island to have discussed the merits and effect of this ancient adjudication; but when her learned counsel, under an order of this Court to answer the respondent's plea, filed a general replication, they accompanied the same with notice of an intention to move to withdraw the same; and have since intimated a desire to change and amend the tenor of the bill itself. To all this there would be no other objection but the inconvenience of delay, and the trouble of keeping open a litigation so extensive in its operation. To bring the whole matter to a speedier issue, Massachusetts presents only a single point of her defence.

A motion is now made to dismiss the bill for want of jurisdiction.

In establishing the government of the United States, the 3d article of the constitution, and second section, provides that the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, c.; in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.

Whether the subject of the present suit is a controversy between states, within the meaning of the constitution; and whether, if it be so considered, a law of congress is necessary to the exercise of judicial power by this Court in the premises; and whether, if such law be necessary, any sufficient action has been had by congress to authorize judicial proceedings, are questions which, under this motion, are to be examined and decided.

In support of the motion to dismiss the bill, it is contended, that this Court has no jurisdiction over the present suit:

1. Because of the character of the respondent, independent of the nature of the suit.

2. Because of the nature of the suit, independent of the character of the respondent.

If the first of these propositions can be maintained, the result is, that in the present state of the law, this Court cannot entertain jurisdiction over a state of this Union, for any cause. If that may be doubtful, and the second proposition is established; it will result in this, that the subject matter of this suit, being for sovereignty and sovereign rights, is beyond the jurisdiction of a judicial court.

To the jurisdiction of a court of the United States in every case, two circumstances must concur. 1st, The party, or the subject of the suit, must be one to which the judicial power of the government extends, as that power is defined by the constitution; and, 2dly, There must be some rule of decision established by the supreme power of the country, by the administration of which the right of the parties to the matter in controversy may be determined.

The government of the United States does not come by inheritance, or succession into any judicial power. In this respect, it is essentially different from all other governments known in the history of the world. Where a nation has been established by colony, or by conquest, there was a foundation in the institutions of the parent state, or the victors, on which its municipal establishments should be placed. Its own domestic arrangements, if it had any, remained, until changed by paramount authority. Such was the case with the states of this Union, when they ceased to be colonies. The government of the United States is a new government, beginning with the constitution. Although the confederation was its prototype, there was no general government, and certainly no national or federal judiciary, until the constitution had formed one.

The government of the United States may, therefore, exercise all, but no more than all the judicial power provided for it by the constitution.

The third article of that instrument contains a declaration of the existence and extent of this new power.

It ascertains the parties, the causes, and the courts for judicial action. To a certain extent, it establishes the rule of decision; and, perhaps, this particular branch of the inquiry into the jurisdiction of the Court in this case, will depend on ascertaining how far the rule of decision is carried by the constitution; because, if the party and the controversy, and the rule for deciding the merits of the controversy are, by the constitution, given to this Court; there can be no impediment to its action in this particular.

It is admitted, that by the express words of the constitution the judicial power of the United States extends to controversies between two or more states. The party, therefore, may be within the operation of the judicial power; in case such a controversy as is contemplated by the constitution exists with one or more states.

Does the term controversies extend to all controversies?

It is to be observed, that the word "all," which is prefixed to the other classes of cases, is here omitted. The judicial power extends to all cases under the laws of the United States; all cases under the treaties made, c.; all cases affecting ambassadors, c.; all cases of maritime and admiralty jurisdiction: but its phraseology is changed, and the universality limited by the omission of the word "all," when it relates to controversies to which the United States shall be a party, and to controversies between two or more states. The judicial power, then, does not reach to all possible controversies to which the United States shall be a party, or between two or more states.

What are the limitations? The first are those which are made by the character of the tribunal; and are included in the terms judicial power; and the words "law and equity," which precede the enumeration of the subject matters of judicial cognizance.

Although the government formed by the constitution, was a new government, and took nothing by succession or custom; the men who framed the constitution were educated to an intimate acquaintance with the judicial institutions of England; whose laws were, to a great degree, the foundation of our own, and whose language, when used by them in this relation, must be deemed to have a technical meaning.

A judicial power means, therefore, a power to interpret, and not to make the laws; and the terms "law and equity," have reference to that complicated code of the mother country; extensive, but not universal, and limited in its operation by well settled decisions.

A limitation, on the broad terms of the grant, is necessarily implied in other branches of this power. The judicial power extends to controversies to which the United States shall be a party, and between a state and foreign states; but it would be manifestly absurd, to bring the political disputes of the day, nullification, abolition, slavery; and the controversies which are beginning to arise between states concerning them; to the decision of a jury trial in a court of law.

It is submitted, also, that controversies between states must be limited to those which begin with the states in that capacity, and does not extend to the antiquated controversies existing between the colonies, to which the states may or may not have succeeded, according to circumstances, which a judicial court can have no means to ascertain.

But the proper mode of considering this article of the constitution, in relation to the judicial power, is to take the constitution as a whole, and keep constantly in mind the grand design and intention of its framers; always regarding it as unique, original, and consistent with itself. The grand object of its framers was to establish a common government for sovereign states, and to have that sovereignty unimpaired, wherever it could so be left; without impairing the government of the Union. The judicial power of the United States is a power, in this view of the case, all or any part of which the government of the United States might exercise, through the appropriate department which was to be established.

It extends to such controversies between two or more states, as are properly within the decision of law and equity, in the precise sense of those terms, arising between the states, in virtue of their relation as states; and to be proceeded with and decided according to the customary forms of judicial proceedings, and the established doctrines of known and acknowledged laws. Every state, by virtue of its sovereignty, and every citizen of every state, by virtue of his allegiance to such state, stands absolved from the jurisdiction of the judicial power of the United States; until the government of the United States, putting into operation so much of the judicial power granted by the constitution as is necessary for the purpose, has organized a court, established the rules of decision, directed the forms of its process, and designated the subjects for its cognizance; not exceeding, in any of these respects, the power assigned to it by the constitution itself.

If, therefore, there is no law regulating the intercourse between the states of the Union; there is no rule for settling a controversy that may arise between two or more states, by reason of such intercourse. I it then should be admitted that a law could be made binding the intercourse of states, and that one state might sue another state for a breach of such law; yet, until such a law exists, this Court can entertain no jurisdiction, because the state having a character above or beyond the existing law is not amenable to any superior; and the Court having no law to expound, cannot settle a judicial controversy, depending, as all such controversies do, on the question whether the conduct complained of, has, in the case presented, conformed to, or departed from the obligations which are imposed by law.

The positions then, which, to carry out this doctrine, are next to be established, are: that the jurisdiction of this Court in any particular case, depends on some adequate legislative provision for the exercise of its powers under the constitution: and secondly, that in point of fact, no law is now in force which operates judicially on a state of this Union.

A legislative provision, it is contended, is necessary for two purposes; first, to regulate the form of process from the citation to the judgment and execution, without which last, judicial action is a mere mockery; and secondly, to establish the law of the case, or the rule of action by which the conduct of the ligitants is to be tried.

In regard to the last, which, as the most material, may be first considered, it supposed that no doubt can exist as to the necessity of such law, as a pre-requisite to judicial action. Judges are to expound the law, not to make it. The only pertinent question then is, does any existing law which this Court can recognise, act upon and regulate the intercourse between the states of this Union?

It is supposed that when a nation is established, and becomes by revolution or otherwise a member of the family of nations, it is, ipso facto, under the operation of international law. But not only does the doctrine of international law apply to the nation, and not to the states of our confederacy; but the law itself is not the subject of administration by judicial tribunals, when it operates on communities. Ambassadors are its counsellors; and its argument, the ultima ratio regum. If the principles of international law are made applicable to individuals in a judicial forum, it is because the municipal law of the place has incorporated the international law as a part of itself, and administers it by the force of domestic legislation. The constitution may itself establish a rule of decision. It does so in the case of treaties, which are declared to be the supreme law of the land; and it provides that its own provisions shall be binding on judges in all the states. Whatever difficulties might be found in a judicial administration of the constitution or a treaty, between individual litigants claiming rights under them, without the aid of a law of congress; they may all be done away without touching this case; because nothing is claimed by the constitution or any treaty of the United States to show the right of the claimant in the present case, or bind the respondent to any prescribed course of action.

The necessity of a law of congress to establish, by direct enactment, or by implication, the code of the United States, has been admitted by this Court. Martin v. Hunter, 1 Wheat. 329. And it is supposed by the Court, in giving its opinion in that case, that congress was bound to vest in its courts all the judicial power of the government.

Congress has judged differently, because it has not appropriated all the judicial power of the government. But the question here, is not whether congress is wrong in the omission, but whether, in a clear case of omission, this or any court of the United States can supply the defect. In a very early period of the history of this Court, it was supposed that the states, like individuals, were amenable to its jurisdiction; and under that impression it was intimated in argument, and seemingly sustained by the majority of the Court, that the moment a Supreme Court is formed, it is to exercise all the judicial powers vested in it by the constitution, whether the legislature have prescribed methods for its doing so or not. Chisholme's Exr's v. The State of Georgia, 2 Dall. 419; 1 Cond. Rep. 6.

The opinion of the Court was not unanimous; and Judge Iredell's dissenting opinion has become, by the 11th article of amendment of the constitution, the better authority. It is to be observed, that this amendment does not change the text of the constitution. That remains the same. The amendment declares that the judicial power shall not be deemed to extend to a case, which, by the construction of the Court it had in the above case been made to reach. It is further to be remarked, that all the subsequent proceedings of this Court in regard to states defendants, have, as far as they have proceeded, been fastened to this case. But the case being overruled by a higher tribunal than even this august Court, in a mode perfectly legal, it is submitted that no dictum, and no principle promulgated in it, can have the authority of law.

The necessity of a code of laws for the government of judicial action being apparent, congress has attempted to establish one. This is done, so far as it is done at all, by the judiciary act of 1789.

This statute adopts, in the 34th section, the laws of the states as a rule of action where they can apply. But as no law of Massachusetts or Rhode Island can embrace the respondent in this particular matter, there is by that section no rule prescribed for the present controversy.

It has been contended that the statute aforesaid, taken in connection with the constitution itself, established a code mixed and miscellaneous, made up of the common law and equity practice of Great Britain, modified by our particular institutions, which serves as the basis of judicial action. To a certain extent, this is undoubtedly so in many, if not all the old states; but to what extent it is true in regard to the United States, has been a debatable question, and is not yet definitely settled.

It is not necessary to settle it in this case; because, if the common law and chancery law of England are in operation here, in their utmost latitude and force, they do not reach the respondent. The common law of England takes no jurisdiction over the actions of sovereign states; nor is there any power in chancery to hold jurisdiction over a sovereign, without his consent.

Such is the character of the states, respectively, of this Union. This proposition it is not intended to discuss. No man, who has at all studied the constitution of the country, can fail to have his mind made up on this point, on the one side or the other. It is maintained by the respondent, that every American state is a qualified sovereignty, and as such exempted by common law, (meaning thereby, the whole judicial code of the country,) from judicial responsibility. It is not contended that a law may not be constitutionally made to reach a state. The question under discussion is, whether the present law extends to a state. The present law is what we term by eminence, and for distinction, the common law; and it is beyond all controversy, that the common law operates on subjects only, and not sovereigns; and upon property, and not sovereign rights.

If the constitution authorizes the government of the United States to subject a state to judicial process and judgment, the government of the United States may pass the laws necessary for the purpose. But to declare what may be done, is not to declare what is done. If congress, for any reason, has stopped short, the judicial department is at the same point brought to a stand. If it has adopted the common law, and nothing more, the Court can do no more than the common law warrants. If the common law does not extend its jurisdiction over a sovereignty, neither can the Court.

The doctrine contended for is that alone which prevents a suit against the United States by every individual who has a demand in dispute. The constitution is as unlimited in regard to the United States as the states. The judicial power extends to controversies to which the United States shall be a party. And in the earlier decisions of this Court, it is maintained that it is the same thing, as regards jurisdiction, whether the party designated be plaintiff or defendant. The state of Massachusetts, instead of soliciting congress for an adjustment of its claim, might have instituted a suit in this Court, obtained if it would a judgment, and levied its execution on a ship of the line, or the arsenals of the country.

The sovereignty of the United States, carried to its legitimate consequences, protects it from this extravagant absurdity. But Chief Justice Jay, when, in his opinion in the Georgia case he rode over state sovereignties, admitted that the logical conclusion of his argument involved a liability on the part of the United States to a suit at law. He avoids it, however, by the extraordinary suggestion that "in all cases against states or individual citizens, the national courts are supported in all their legal and constitutional proceedings and judgments by the arm of the executive power of the United States; but in cases of actions against the United States, there is no power which the courts can call to aid:" Georgia case, 2 Dall. 478. What is this but an abandonment of duty through fear. It would have been better to adopt the maxim of the English lord chief justice: Fiat justitia, ruat cœlum. The better answer is that by the law, as it stands, no action in a judicial court can be maintained against a sovereignty, whether state or national. That the constitution has, in both cases, authorized congress so to frame and pass laws that the judicial power may operate on the one and the other; but until that is done, any action of the judiciary would not be to expound the law of the case, but to make one.

But the United States are sometimes sued. This is in cases of contract, or other similar causes of action, in which the United States, dealing as a private citizen with other citizens, consents to come into a court of justice, and submit to the operation and construction of the laws of the land. The laws of the land reach to contracts. The United States makes a contract; and when it submits, by its own consent, to a suit, admits expressly, that in the decision the law of contracts shall apply to its case. The United States makes a treaty; and, by the constitution, a treaty is the law of the land. It claims for itself land under that treaty; takes possession, and cannot be ousted by a suit at law, in virtue of its sovereignty. But it waives its sovereignty, and submits its title under the treaty, to arbitrament by commissioners, or to a judicial decision in a court of law.

Have the states consented to be sued? Unquestionably the provision of the constitution is their consent to exactly what that provision contains; but the inquiry is not of consent, but construction.

Massachusetts does not propose to take herself out of the constitution, or to withdraw from any of its obligations. She admits, that under certain circumstances she has agreed to waive her sovereignty, and submit her controversies to judicial decision; but maintains, that before she can be called upon to do this, a court must be established, a law made, or a code propounded, suitable to the decision of her case; and the forms of process, mode of proceeding, character of judgment, and means of enforcing it, be first established by legislative authority. But the United States never has submitted its sovereign rights, or its acts in its sovereign capacity, to judicial cognizance, and never can; and the states, as is contended, by agreement to submit their controversies to judicial decrees, never intended to include in these controversies questions of sovereign right, for the regulation of which no law is made; and no law ever can be made by any other power than themselves, and each one for itself alone.

This view of the case is greatly fortified by considering the law which the complainant desires this Court to administer. This indeed may be deemed to belong to the merits of the case; and it does so. But it is also an appropriate subject of examination under the motion now submitted. One of the grounds of this motion is, that there is no existing law of the country binding on these parties, applicable to the controversy between them, which this Court can administer. This would be exceedingly obvious, if the complainant had presented his title under the bull of Pope Nicholas V., by which he divided all the countries to be discovered from Africa to India; or under Alexander VI., in which he divided three-quarters of the habitable globe: Omnes insulas et terras firmas inventus aut inveniendus, detectas et detegendas, c.

The claim set forth in the bill is, in the judgment of the respondent's counsel, equally extra-judicial and untenable.

The state of Rhode Island states its claim to be thus: By the charter given to certain persons by Charles First, king of England, bearing date the 4th March, 1628, the colony of Massachusetts was established, with a territory bounded on the south by a line drawn within the space of three English miles, on the south part of the said river called Charles river, or of any or of every part thereof. That a charter was granted by Charles Second, on or about 8th July, 1663, establishing the colony of Rhode Island, by which its northern boundary was defined in these words: "on the north or northerly, by the aforesaid south or southerly line of Massachusetts Colony or Plantation." By these two charters, the boundaries of the two colonies were adjacent and conterminous.

That after the vacating of the colony charter of Massachusetts in 1684, and the granting a province charter in 1691; which, so far as this matter is concerned, established the same conterminous boundary by the same words; the government of Massachusetts, about 1719, wrongfully possessed herself of a tract of land more southerly than a true line would be drawn, which should be run three miles south of the river called Charles river, or of any and every part thereof, "and extending the whole length of the north line of the colony of Rhode Island, being more than twenty miles in length and four miles and fifty-six rods in breadth, in the east end thereof, and more than five miles in breadth at the west end thereof, and has since continued wrongfully to exercise jurisdiction over the same."

From other parts of the complainant's statement, it is apparent that the true place for the dividing line was then admitted by both parties to be that described in the charter, and that it was drawn and the territory occupied by the province of Massachusetts on a claim of right; that the place of location was the place designated in the charter. The possession of Massachusetts, per fas aut nefas, from that time, is admitted.

The title of Rhode Island to the premises, admitting she is right in the construction of the charter, and the point from which the boundary line should be drawn, (in which, at a proper time, it will be proved she is in great error,) depends on the validity of a grant by charter of the British crown, against an adverse possession of more than one hundred years; first by a province, and next by a state of the Union; through all the vicissitudes of war, revolution, and independence.

If, therefore, such a charter, admitting its existence, gives no title against an adverse possession; and especially, if the declaration of American independence, and the subsequent formation of a federal government, to be judicially noticed by this Court, have vacated the law, or supposed law, on which the claimant rests its title, and this so plainly, that the charter cannot be inquired of by the Court, but that under the constitution it is bound by events subsequent to the declaration of independence, in all that respects states, because the states were thereby created; then, even under this motion to dismiss for want of jurisdiction, the bill must be dismissed.

Such is conceived to be the case. The state of Massachusetts makes no claim for herself; and admits none for Rhode Island, by force or virtue of any grant, charter, or authority from the British crown. Whatever might have been, in ancient times, the validity of these instruments of royal power, they ceased, at the declaration of American independence, to have any judicial operation on the great corporations or colonies they had contributed to establish. Massachusetts, when she became a state became so in the integrity of her whole territory, as it was then possessed by her, whenever or however acquired, by grant, charter, purchase, treaty, or force of arms, claiming her actual possession as the ultimate evidence of right, and denying that there then existed, or yet exists, any human tribunal that can lawfully inquire how or by what means that possession was obtained; or that any authority exists to determine the limits of an original state of the Union, in any other way than by determining what it was, de facto, on the 4th July, 1776.

So far as regards Great Britain and other foreign nations, the treaty of peace in 1783, settled the exterior boundary of the United States; but in what proportions it was owned by the thirteen sovereignties, then commencing a political existence, was to be adjusted by themselves. This adjustment was a matter of agreement then to be made, or to rest on the fact of possession; which, admitting no higher title, and capable of no higher proof, assumed the right from the exercise of the right: and it would now be as wise to inquire how the seven Saxon kingdoms of Great Britain were established, or to define the limits of the heptarchy, as to attempt to decide what constitutes a state of the American Union, beyond the fact that so it was when the nation was proclaimed independent, or the confederacy was established under the constitution.

There have been many decisions in this Court affirming the original validity of British grants of land, and of government. It is not proposed to set up any principle militating with these decisions. A careful examination of each of them, will show a distinction supporting the doctrine now contended for.

Discovery or conquest are, no doubt, well recognised titles, from which to deduce, ab origine, grants of land, and political government. But these titles carry with them, by their very terms, the idea of possession. The discoverer or the conqueror, is the only person in possession; and by force of his possession so acquired, he establishes a government, marks out a territory, or conveys title to the soil. The grant is a contract which the grantor cannot vacate; but it was never doubted, although the case has never come into judgment, that it might be surrendered or abandoned by the grantee. But a corporation, and much more a colony so established by the right of conquest or discovery, is not a private, but a public, political institution.

To maintain that it was inviolable by the crown, was the doctrine of the patriots of the revolution; but to deny to them the power of abrogating, dissolving, annihilating it, is to bastardize the revolution itself. If the revolution did any thing, it was to cancel and annul these royal charters; and the same right of conquest, by which the king of England obtained power to make a political government here, gave to the states the right to destroy it.

In the Dartmouth College case, Wheaton's Reports, the only important question was, whether the corporation then in question, was a public or private corporation. It was admitted that, in the former case, it was repealable by the state. That a colony was a public institution, and partaking the character of a corporation, is under able. Indeed, Massachusetts was summoned into chancery as a public corporation, in the year 1684, and judgment rendered to vacate and annul her charter. But the revolution, the declaration of independence, the formation of the constitution of the United States, are acts of higher authority than the decree of the lord chancellor. They dissolved the government of the colony, and the colony itself.

The people thereafter claimed and possessed the country by a new title. Sovereign rights were assumed by the states, in their character of public communities, claiming the right of self-government over the soil then in their actual possession; and the territory now claimed by Rhode Island, whatever it was before, then was, in fact and by possession, an integral part of Massachusetts. It was the state, as much as Boston or Salem. All other titles merged, and the charter was at an end.

Neither can the state of Rhode Island claim any thing by virtue of a charter granted to the colony of Rhode Island, by the English crown. Rhode Island, by her own act of independence, vacated that charter, and remitted herself to her better title of possession, by which she now holds the towns of Bristol, Warner, Barrington, Somerset, Little Compton, Tiverton, and the fine lands of Mount Hope and Poppy Squash; a territory almost half her actual extent, and unquestionably belonging to Massachusetts, as part of the original colony of Plymouth, which was united in one colony, Massachusetts, in 1691. Baylie's Plymouth, part 4, p. 50; Morton's Memorial, 480. For the impossibility of being governed by the charters, see Bancroft's Hist of U.S. 83, 84, 137, 138, 209, 210, 309, 313, 364; Mass. Hist. Soc. 1st vol. 205, 412, 442, 396; 2d vol. 244.

Some questions may be proposed on this subject relating to the rights of the complainant under his assumed title, and the supposed obligations to the respondent, which must be answered before this cause can proceed to hearing and judgment.

Can a sovereign state be sued for acts done in virtue of, or by claim of right in its sovereign capacity? If Massachusetts had marched across the border supposed by Rhode Island to be the true line, and, in a belligerent attitude, taken possession of the disputed territory; is such act within the cognizance of this Court, subjecting the state to action of trespass, quare clausum fregit?

If such suit is maintainable, by what law is the action of the Court to be regulated in cases where the constitution lays down no rule of proceeding, where the subject is not within the scope of any treaty, and is not defined by any statute law of congress?

If a state may be made amenable to a judicial court, is she to be answerable for the acts of a colony to which she has succeeded?

If she is suable, has the state sued, the common rights of other defendants, to plead accord and satisfaction, arbitrament and award, title by prescription, or the bar of any statute or common law limitations?

If a state takes all the estate and appurtenances of its colony ancestor, to whom it claims to succeed, is it what such colony had in possession when it ceased to exist; or may it lay claim to every thing to which such colony had a paper title, although disseised by the intrusion of some neighboring state or colony?

If a state claims the rights of its colony ancestor, by what rule of what law are such rights to be ascertained?

If such rights are of real estate, will such estate pass to the colony in the first instance by deed only, or by livery of seisin?

If the suit is for sovereignty or sovereign rights, is there any title to such claim but possession?

If, in the case of the South American provinces, the United States delayed to acknowledge their independence and nationality, so long as there was a contest about it, and the possession was not secured; and if such be the principle of the law of nations, is not the same doctrine to prevail whether this sovereignty is claimed for the whole territory, or for a part of the whole?

But the more significant question remains. Can the allegiance of five thousand American citizens, natives of Massachusetts, and owing her the duties of citizens, or of one such, be changed by a decree of this Court; without their consent, without notice to them to agree or disagree, as if they were serfs on the soil of Russia: because one hundred and twenty years ago, the prodigal monarch of England put his signature to a piece of parchment, to gratify the avarice or the ambition of his courtiers?

The want of jurisdiction is further maintained by considerations applicable to this matter, arising both before and subsequent to the decision of the controversy on its supposed merits.

The merits of any case depends on the conformity of a party's conduct to a previously prescribed rules of law; but, if there be no such rule, there can be no test of such merit, and no decision upon them. But, in addition to this, a question arises on the form of process. By what rule of law can a state be brought before this Court, and by what form of execution, known to the laws, can the judgment of this Court be carried into effect?

It is undeniable that the power to direct the process, to declare its nature and effect, and the mode in which the judgment of the Court shall be executed, must be prescribed by the legislative department.

This may be done, possibly, by implication or reasonable inference. It is certain, no such provision is made by direct enactment. In the case of New Jersey v. New York, 3 Peters, 461, 4 Peters, 284, where this matter has been considered; it is admitted, that there is no direct provision of law, but the power to summons is made to rest on an analogy to individual suitors. That of execution is not at all considered by the Court.

Now, it is contended, that the original analogy that was supposed to exist between sovereign states and private citizens, never did exist. The 11th article of Amendments to the Constitution has so declared. Before that amendment, and under the broad extent of power erroneously assumed by this Court, a state was, indeed, but in the character of a private corporation; and it might well be thought, on that hypothesis, that the power to try a party by a known rule of law, involved the necessity of having the right to bring such party into Court for trial and judgment; and that such power, as it extended to reach other suitors, might also reach states, between whom and other suitors, as the Court construed the constitution, there was no difference. In the opinion of the dissenting judge, there was a difference; and when the 11th amendment altered the constitution, so that, to a great extent, this difference is established, the consequence seems legitimately to follow, according to the doctrines maintained by the dissentient.

It is now true that states were once deemed mere ordinary suitors, and that the general provisions of the process act, reached states as other suitors, because there was not recognised to be any difference among them. The process act reached only ordinary suitors. States are not now ordinary suitors, and the process acts reaching only to ordinary suitors, do not reach them.

The power of the courts of the United States, to issue writs not specially provided for, is limited. They are confined to such as are conformable to the principles and usages of law. Judiciary act of 1789.

There are no principles of law, meaning the common law, or the statutes of the states, or of congress, that embrace a sovereign state. There is no usage in such cases. On the contrary, the usage is directly adverse. It holds to the exemption of such parties.

This difficulty occurred to the complainants. In 1830, the senator from Rhode Island, who signed the bill as solicitor, in 1832, introduced into the senate a bill, with minute provisions to remedy the defect. It did not pass. In 1828, the senators of New Jersey introduced a like bill to prepare for the controversy of that state with New York. It was not adopted. Every legislator who has been called to consider this subject, has admitted the defect of legislation.

2. This Court has no jurisdiction, because of the nature of the suit. It is in its character political; in the highest degree political; brought by a sovereign, in that avowed character, for the restitution of sovereignty. The judicial power of the government of the United States, extends, by the constitution, only to cases of law and equity. The terms have relation to English jurisprudence. Suits of the present kind, are not of the class belonging to law or equity, as administered in England. 1 Black. Com. 230, 231; 2 Versey, jr., 56; Nabob of the Carnatic v. East India Company, 3 Vesey, 424; Barclay v. Russell, 1 Vesey, sr., 444. Penn v. Baltimore; where the agreement, and not the political right, was the subject of litigation. See Lord Hardwicke's opinion; New York v. Connecticut, 4 Dall. 4. By the judiciary act of 1789, the jurisdiction of the Supreme Court of the United States, where a state is a party, is confined to cases "of a civil nature."

This qualification was not in contradistinction to criminal cases, for no state could be prosecuted by another state, as a criminal. It is intended to have reference to cases not political, or involving questions of sovereign power between states. Wiscart v. Dauchy, 2 Dall. 325. See, also, Drafts of the Constitution, printed for the members of the convention, and for their use only, and the successive amendments made, and in manuscript on said printed drafts; in the collection of the Massachusetts Historical Society.

The complainant has no equity on his own declaration. It is a stale demand, in the language of the books; and the fact appearing on the face of the bill, need not be pleaded. Beckford et al. v. Wade, 17 Vesey, jr.; Story on Equity, sec. 1520, and the Notes; Middlecot v. O'Donnell, 1 Ball Beatty, 166; Hoveden v. Lord Annersley, 2 Scho. Lefroy; Paul v. M`Namara, 14 Vesey, jr., 91; Gifford v. Hart, 1 Scho. Lefroy, 406. The court will not permit a party to lay by and wait until the subject of dispute has acquired great value, and become connected with great interests and diversified relations.

Again: if the parties are to be treated in this Court as individuals, or private corporations, or even as states with only the rights of private litigants, then the bill must be dismissed, because, if it seeks an adjustment of boundaries, without claim to the soil; such a cause is no subject of equity jurisdiction. Atkins v. Haton, 2 Anstruther, 386; Fenham v. Herbet, 2 Atkyns, 484; Welby v. Duke of Rutland, 2 Atkyns, 391; Willer v. Smeaton, 1 Bro. Ch. Rep. 572; Bishop of Ely v. Kenrick, Bunbury, 322.

There is no such case in this country, nor in England, for jurisdiction only between towns or countries.

If the boundary is ascertained, and the defendant has encroached upon the complainant, the right between individuals must be ascertained in an action at common law, and not by bill in chancery; and the right must, in all cases, be settled at law, before chancery can adjust the boundaries. See the cases above cited.

The only title, in equity, to which the complainant can appeal, is that by which an equity is administered, not applied to agreements generally, but intended to preserve family honour, and family peace. Let this be applied to the sister states, in the great American family of the nation. It will leave undisturbed and unchanged, what has so remained for more than a century. Storkley v. Storkley, 1 Ves. B. 30.

Mr. Hazard, for the state of Rhode Island:

The merits of this motion, sir, might have been more satisfactorily examined and discussed by the complainant's counsel, if we could have had the motion, and the specific grounds of it, put into writing, as we were desirous, and requested that they should be; but without effect.

It does appear to me, that a motion which goes to cut off one of the most important branches of the jurisdiction of the Supreme Court, exercised by it from its first establishment, and to deprive a party in court of the benefit of that jurisdiction, and of her only remedy for aggravated injuries, (as she has a right to insist in resisting a motion which would deprive her of a hearing,) that such a motion, and the specific grounds of it, ought to be presented in writing, with precision and fulness, and with adequate notice of them to the opposite party, to enable him to meet them, and to know what he has to meet. But we are now to answer this motion, verbally made, and to seek for the grounds of it, as they are scattered through a long and desultory argument; in the course of which, those grounds have taken so many different shapes, that it is not easy to recognise them for the same, or to reconcile them one with another. This being the case, it is not surprising that the counsel refused to put the specific grounds of their motion into writing. I have, however, endeavoured to make myself acquainted with the real question to be decided; and, with permission, will now present such views as I have been able to take of it.

Has this Court jurisdiction over the subject matter of, and over the parties to the bill in equity now pending before it? and has the Court now power to proceed to the hearing and trial of the cause, and to make a final decree therein? If neither branch of this question can be answered in the negative, there can be no good grounds for the present motion; however those grounds may be shifted, or multiplied, or repeated. Allow me to consider the first branch of the question. It is evidently purely a constitutional question, arising under the constitution, and only to be tried and settled by it. Turning, then, to the constitution, we find it there declared, that the judicial power shall extend "to controversies between two or more states;" and that in those cases "in which a state shall be a party, the Supreme Court shall have original jurisdiction." These are the words of the constitution; and this is a controversy between two states; and the state of Massachusetts is a party to it: and the state of Rhode Island is a party to it; and this controversy is now pending before the Supreme Court. But it is contended by the counsel, that although the words of the constitution do embrace this controversy, yet it is not within the meaning and intention of that instrument; and that it was the intention of its framers to exclude such controversies from the jurisdiction of the Court. This is dealing with the constitution as Peter, Martin and Jack dealt with their father's will. But as it is the only pretension that could be set up against the constitutional jurisdiction of this Court, it is important for us to inquire, strictly, what was the meaning and intent of the framers of the constitution, in this respect? And here, fortunately, nothing is left to conjecture or tradition. The explicit, unequivocal intention of the framers of the constitution upon this subject, is matter of authentic public record. I beg leave to trace this constitutional provision for preserving harmony among the states, from its origin. Before the revolution, all controversies between the colonies or provinces, concerning boundaries, were carried up to the king, in council, and were by him settled. There was one such controversy between these same parties, Massachusetts and Rhode Island; and another between Massachusetts and New Hampshire; both of which were so settled. When the states asserted their independence, that tribunal, of course, was annulled. But the new states felt the necessity of immediately establishing, in its place, a competent tribunal of their own, with full jurisdiction over those dangerous controversies. And this they did in the articles of confederation; the ninth article of which, provides that "congress shall be the last resort, on appeal, in all disputes and differences now subsisting, or which may hereafter arise, between two or more states, concerning boundary, jurisdiction, or any other cause whatever." Congress to appoint judges to constitute a court for hearing and determining those causes. "And the judgment and sentence of the court to be appointed in the manner before described, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear, or defend their claim or cause, the court shall, nevertheless, proceed to pronounce sentence or judgment, which shall, in like manner, be final and decisive; the judgment or sentence, and other proceedings being, in either case, transmitted to congress, and lodged among the acts of congress, for the security of the parties concerned." And congress did, accordingly, establish and organize the court, called the "court of appeals." And that court took cognizance of, and decided a number of jurisdictional controversies between states; and among others, one in which Massachusetts herself was a party, and acknowledged the jurisdiction of the court, and submitted to its decision. It must be recollected, that the territorial descriptions and boundaries, contained in the colonial grants and charters, were necessarily loose and defective; and that in the progress of the settlements, in adjoining colonies, controversies must unavoidably arise as to their respective limits. And the greater the certainty of such conflicts, the greater was the necessity of providing an impartial tribunal for the peaceable adjustment of them. The language of the ninth article, just read, is descriptive of the state of things at the time: "disputes and differences now subsisting, or that may hereafter arise between two or more states, concerning boundary, jurisdiction," c.

The court of appeals retained and exercised its jurisdiction over these controversies, until the adoption of the present constitution; when its place was supplied, and the exigency provided for by the establishment of a national judiciary, with full jurisdiction over the same controversies. And, by the twelfth section of the "act for regulating processes," c., passed in 1792, it was enacted, "that all the records and proceedings of the court of appeals, heretofore appointed, previous to the adoption of the present constitution, shall be deposited in the office of the clerk of the Supreme Court of the United States, who is hereby authorized and directed to give copies of all such records and proceedings, to any person requiring and paying for the same, in like manner as copies of the records and other proceedings of the said court are, by law, directed to be given; which copies shall have like faith and credit as all other proceedings of said court."

The counsel of Massachusetts have expressed the idea that the United States came into existence with the present constitution; and that Massachusetts, as one of them, is bound by nothing before that date. This is a strange conception, indeed. Not only the states severally, but the United States, came into existence with the declaration of independence: and the first of the articles of confederation ordains, that "the style of this confederacy shall be `The United States of America.'" It was "to form a more perfect union," and to strengthen the confederation, that the convention was called which formed this constitution. And here are the concluding words of the resolution of the old congress of 1787, recommending the call of the convention: "For the sole and express purpose of revising the articles of confederation," c. The convention met; and in revising the important ninth article, changed the words "disputes and differences," to the word "controversies," taking the words "between two or more states," as they found them in the article. The tribunal was, of course, changed; for now an independent judicial department was established, which had no existence under the confederation. Not deeming it proper, in a permanent constitution, to designate particular, existing, and (it might be hoped,) temporary disputes between states, they used the comprehensive word "controversies," as fully including them all. We do not know that there were any other controversies at the time, between states, than those about boundary; and if there were, they must have been comparatively unimportant; none other were so likely to exist, or to be carried to extremities; and, therefore, the article, after the words, boundary and jurisdiction, merely adds the general expression, "or any other cause whatever;" apparently by way of precaution. The delegates from the several states knew that a number of those state controversies then still existed, and that more might arise; and they were fully sensible how all-important it was to provide against their breaking out. The great object of the convention was (as expressed in the preamble to the constitution,) "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." And how was union to exist? — how domestic tranquillity, amidst contention among the members? How was justice to be established, if the strong were permitted to give law to the weak? and how were the rights of individual states to be preserved, if left unprotected from the encroachments of stronger neighbours? And what would become of the harmony and integrity of the Union, if all its members were not protected in the enjoyment of their equal rights?

But, in addition to all this, it is a remarkable fact, that this very question of jurisdiction, which Massachusetts now brings up, after the lapse of more than half a century, was directly acted upon and decided by the convention itself; as appears from the records of its proceedings. During its deliberations, the question was distinctly brought up, whether controversies between states, concerning jurisdiction and boundaries, should not be excluded from the jurisdiction of the courts. And the convention decided that they should not be excluded. And the provision in the constitution, as it then was and still is, was retained; and this constitution was unanimously agreed to by all the delegates. And, afterwards, the same question was discussed in the state conventions, and this provision was still retained and approved of; and the constitution ratified by every state. And several years afterwards, when the eleventh amendment to the constitution was adopted, and suits "against one of the United States by citizens of another state, or by citizens or subjects of any foreign state," were excluded from the jurisdiction of the courts, the remainder of the provision, giving jurisdiction over controversies between two or more states, was preserved untouched; and the states thereby manifested their continued approbation of that provision; and, accordingly, this question of jurisdiction has long been settled in this Court, by its uniform practice and decisions, in numerous cases, from its earliest establishment.

And now, what is it that Massachusetts has to say to all this? I beg the Court to consider whether every single objection, and the whole argument on her part, have not been objections and arguments against the constitution itself, rather than against the constitutional jurisdiction of the Court? In opposition to the constitution, they come armed with political axioms, and abstract theories of government; and with the aid of Montesquieu, and other learned writers, reason upon the science of government, and the distribution of appropriate powers among the three great departments.

Allow me, sir, to present a summary of the principal objections and positions upon which the counsel of Massachusetts appear most to rely. They lay it down, that a controversy between states, concerning jurisdiction and boundaries, is political, not judicial, in its character; that judicial courts can take cognizance only of controversies strictly judicial, not political, in their nature; that the present controversy concerns jurisdiction and sovereignty, and is therefore out of the judicial jurisdiction of this Court; and cannot be acted upon by it, without the assumption of political power. And, in support of their doctrine, the counsel have read a number of English cases, and the opinions of learned English chancellors. And what does it all amount to? Does it amount to any more than the plain, self-evident proposition, that courts created by sovereign power, and subordinate to it, cannot exercise jurisdiction over sovereign power, nor interfere with its prerogatives? Let us see if this is not the whole substance of the doctrine. In illustration of their doctrine, the counsel have referred to the controversies between the colonies, concerning their boundaries, and over which the English courts exercised no jurisdiction. And why did they not? It was because there was a higher tribunal, which the colonies appealed to. The jurisdiction, in those cases, was in the king himself. He made the colonial grants, and gave the charters; reserving in them all allegiance and fealty to himself. He appointed the colonial governors; not excepting the governor of Massachusetts. Rhode Island almost alone elected her own governors. He, the king, therefore claimed and exercised jurisdiction over the colonies, as their feudal lord. But, had he so pleased, he might have transferred his royal jurisdiction over those controversies, to any of his courts. And had he done so, those controversies, whatever their character, and by whatever name called, political or civil, would have become the proper subjects of judicial investigation and decision. Another case, much relied upon by the counsel of Massachusetts, was that of The Nabob of the Carnatic against the East India Company; of which case, the court of chancery declined taking jurisdiction, because one of the parties was a sovereign prince, and the other, (although subjects of the crown,) acting by virtue of its charter as an independent state. It seems that, in this instance, the charter of the company had placed it above the law. But suppose that its charter had subjected it to the jurisdiction of the court of equity, in any controversies it might have with any of the surrounding princes, would the character of the parties, (the foreign prince assenting to the jurisdiction,) or the nature of the controversy, have formed any obstacle to the exercise of that jurisdiction? And would not the exercise of it have been strictly judicial in its character? The same plain principles of exposition embrace and dispose of every case and instance which the counsel have brought, or can bring in support of their doctrine. All these cases are governed by the peculiar institutions of England, and the structure of her government, in its various branches. No such question as this, of jurisdiction in controversies between two states of this Union, ever could arise in the English courts. If this jurisdiction is vested in the court, by the constitution, how preposterous is it to talk of the nature of the controversy, or the character of the parties! Suppose the controversy is political in its nature: what then? — Is there any reason in nature why it should not be subjected to judicial investigation and decision, as much as any other controversy? Suppose the parties to it are two states: what then? — Is there any reason in nature why they should not be governed by the laws and principles of justice, as much as any other parties? All controversies, whatever their character and whoever the parties, if they are ever settled, and the parties will not settle them amicably, must be settled either by force or by the judgment of some tribunal. When the controversy is between sovereigns, the sword is the last resort, the "ultima ratio regum;" and the contest is waged at the expense of the blood and lives of their subjects. But if the controversy is submitted to some independent tribunal; that tribunal, call it by whatever name we may, must act judicially. It is not in my power to perceive how the sovereignty of Massachusetts is concerned, as she alleges, in the settlement of this question. Even absolute sovereigns have submitted their controversies about territorial limits, to independent tribunals; and no one ever imagined that the sovereignty of either was affected by their doing so.

But Massachusetts is not now possessed of unlimited sovereignty. All the states, when they ceased to be colonies, became sovereign and independent. But they were all sensible that they could not remain so if they remained disunited. They knew that it was by union alone they could preserve their liberties. They did unite; and, to secure their great object, they established this limited government of the Union, investing it with a portion of their state powers, and at the same time restricting themselves in the exercise of certain other powers. Thus, both the federal government and the state government are but limited governments; both equally bound by the constitution: and all acts of either, violating the constitution, are void. And it is the constitutional province and duty of the Court to declare such acts void, whenever the question of their constitutionality comes before it.

For in the formation of this federal republican system, an independent judicial department was deemed to be a necessary branch of the government, to prevent encroachments, and preserve a just equilibrium; and therefore, the constitution declares, that "the judicial power shall extend to all cases in law or equity arising under this constitution." And every decision of the Court upon the constitutionality of an act, either of congress or of a state legislature, concerns, to use the language of Massachusetts, their respective jurisdictions. How absurd, then, is it, to contend that the judicial power does not extend to political questions, or to questions in which the jurisdiction of a state is concerned. The only question here is, whether the states, by the constitution which they formed and adopted, did confer this jurisdiction upon the Supreme Court. And is it not amply shown that they did confer it, and that they explicitly declared it to be their intention to confer it?

And is it for Massachusetts to gainsay this? Massachusetts possessed a larger share of sovereignty under the confederation than she does under the present constitution. Yet she then agreed and assisted in constituting the court of appeals, with full judicial powers over this very controversy; which was one of the then subsisting controversies concerning state boundaries and jurisdiction, specified in the 9th article. In the convention, also, which formed the present constitution, Massachusetts agreed to invest this Court with the same jurisdiction. And again, in her state convention, which ratified the constitution, she approved of and adopted this provision. And, during all this period of time, Massachusetts had subsisting controversies with her neighbour states, concerning her territorial boundaries and jurisdiction; particularly this controversy with Rhode Island, and another with the state of Connecticut, of precisely the same character; which last was not terminated until the year 1801. Massachusetts, therefore, by her own consent and acts, gave jurisdiction to this Court over the present controversy, as far as her consent and acts could give it.

Taking it, then, for granted, that it is fully shown that "this Court has jurisdiction over the subject matter of, and over the parties to the bill in equity now pending before it," I will proceed to the consideration of the 2d question: "Has the Court now power to proceed to the hearing and trial of this cause, and to make a final decree thereon?"

Mr. Justice BARBOUR asked Mr. Hazard, if he could point out any process by which the Court could carry a final decree in the cause into effect, should it make one. For instance, if an application should be made by Rhode Island for process to quiet her in her possession, what process could the Court issue for that purpose?

Mr. Hazard said, that he had by no means overlooked that important question, but had given to it the fullest and most attentive consideration in his power. But he had thought that it would be proper to reserve that question for the last to be considered; as in point of order it appeared to be. At present, he was desirous of showing that the Court had full power, and ought to proceed to the hearing, and to make a final decree in the cause.

And what is there to prevent this proceeding? The Court have jurisdiction over the subject matter and over the parties; and the parties are here before the Court. The defendant state obeyed the subpœna issued from the Court, and came in more than three years ago; and took upon herself the defence of the suit, and put in her plea and answer thereto. At another term, she applied to the Court for an order upon the complainant to reply; and, at the last term, she made a written agreement with the complainant respecting amendments of the bill and pleadings; and she is now here in Court? What is there to hinder the cause from proceeding?

Why, it is contended, in the first place, that consent of one party cannot give jurisdiction to the Court; and authorities have been read to this effect. No one doubts, that when it appears by the record or otherwise, that the Court has no jurisdiction of the subject matter of the complaint; the consent of a party cannot confer jurisdiction. But when the Court has jurisdiction of the subject matter of the suit, the party defendant can consent to appear, and his appearance is conclusive upon him; even although if he had not appeared, he might not have been reached by the process of the Court. "The appearance of the defendants to a foreign attachment in a circuit court of the United States, in a circuit where they do not reside, is a waiver of all objections to the non-service of process on them." Pollard v. Dwight, 4 Cranch, 421. "An appearance by the defendant cures all antecedent irregularity of process." Knox v. Summers, 3 Cranch, 496.

But Massachusetts has raised a number of other obstacles to the Court's proceeding to a hearing of this cause. The following, I believe, contains the substance of them all:

They are, 1. That the sole province of the Court is to expound and administer the law; and that here is no law for the Court to expound or administer. That congress has passed no act defining the controversy; no act prescribing the rule by which to try it; no rule of decision. 2. That by the 13th section of the judiciary act of 1789, congress has limited the jurisdiction of this Court, where a state is a party, to controversies of a civil nature; which this controversy is not, being political in its character; and that, therefore, congress meant to exclude controversies of this character from the jurisdiction. 3. Congress has passed no act providing the process necessary to enable the Court to exercise its jurisdiction in the case. 4. That the Court possesses no power to carry a final decree in this cause into effect should it make one; congress, as is alleged, having made no law to enable it to do so.

The last of these objections, I will consider, presently, by itself. And as to the rest of them, if this doctrine is to prevail, what becomes of the jurisdiction expressly vested in the Supreme Court by the constitution itself; and what becomes of the Court itself, if it is to be placed upon the same footing as the inferior courts, which congress has power to establish, and of course, to regulate? By the 8th section, 1st article of the constitution, congress has power "to constitute tribunals inferior to the Supreme Court." But the Supreme Court was ordained by the constitution itself, and necessarily possesses all the judicial powers incident to such a court. Otherwise the constitution might be defeated, and the Supreme Court rendered a nullity by the act of another and but co-ordinate branch of the government. But congress has no power to deprive this Court of its constitutional jurisdiction, nor to restrain it in the exercise of that jurisdiction. And this Court would declare unconstitutional and void any act of congress having such an object.

The case of Martin v. Hunter's Lessee, has been referred to, and much stress put upon some general remarks of Mr. Justice Story, who delivered the opinion of the Court in that case. Those remarks were concluded in the following words, which were not read, but ought to go with them: "We do not, however, place any implicit reliance upon the distinction which has been stated and endeavoured to be illustrated." But what shows conclusively that the counsel are wholly mistaken in their understanding of the meaning of those remarks, is the fact, that in the case of New Jersey v. New York, which was before this Court fifteen years after that of Martin v. Hunter, the Court, of which that hon. judge was one, not only took jurisdiction of the case, although the state of New York had refused to appear, but decreed and ordered, that the subpœna in this case having been returned executed sixty days before the return day thereof, and the defendant not appearing, the complainant be at liberty to proceed ex parte.

But it is wasting time, I fear, to dwell upon such objections, when it has been so clearly shown that these cases were expressly and intentionally included in the jurisdiction of this Court by the constitution. I was quite at a loss to understand what was meant by "a rule of decision; a rule to try the case by:" until the counsel enlightened me by inquiring how, without an act of congress, the Court was to ascertain which state was right, and which wrong; alleging that, there being no such act, the Court could not proceed by the rule of the common law, or that of the civil law, or of any state law.

This is a novel idea. Such an idea was quite beyond the conception of the men who framed the articles of confederation. It did not enter into their heads that any thing more was necessary to be done, to meet the exigency, than to establish a competent court, with sufficient powers to call the parties before them; and to try and determine these controversies in the same manner as they would any other controversies between any other parties. And it seems that the court of appeals, thus constituted, had the same idea of its province and duties, and found no difficulty in performing them; governing themselves by the principles and rules of justice, equity, and good conscience, and not dreaming that any different rule was furnished by the common law, or the civil law, or by any state law.

The 34th section of the judiciary act has been turned to again and again, as showing that congress had furnished a rule of decision, as it is called, in cases at common law; but no such rule for cases like the present. This is making a strange use of that short section of four lines, the whole purpose of which is to give efficacy to the local state laws, in trials at common law, in the courts of the United States, "in cases where they apply," says the section. That is, that cases arising under a local law shall be governed by that law. Thus, the state laws regulating the descent of real estates, or the rate of interest, for instance, ought, in all courts, to govern the cases arising under those laws. And this is the whole meaning of the section. The counsel have contended, that if any suit at all could have been instituted by Rhode Island, it ought to have been a suit at common law and not in equity. But no state law could apply to such a suit any more than to the present; and there are very many suits at common law which are not governed by any state law.

An expression (the word civil) used in the 13th section of the same act is also suspected by the counsel, of containing an important secret meaning, which the counsel think they have discovered. They insist that by the use of this word "civil," congress intended to take this controversy, and all of the same kind, out of the jurisdiction of this Court. Surely, the counsel of Massachusetts must feel themselves under the necessity of going a great way for inferences, and set a great value upon very slight ones, to draw them from such sources as these. The words relied upon, are "that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party," c.

The plain object of congress was to withhold from the inferior courts jurisdiction in controversies between two or more states. And to do this, they gave to the Supreme Court exclusive jurisdiction in those cases, instead of original jurisdiction merely, which it had by the constitution. The word civil is properly used, because all controversies which do or can exist between two or more states, must be of a civil nature, and none other; unless they engage in war, which they have bound themselves by the constitution not to do. The word civil does not mean amicable or peaceable; actions of trespass and of ejectment are civil actions. Civil is technically and generally used in contradistinction to criminal. There is not the slightest ground for supposing that the word civil was intended to be used in contradistinction to political. Congress would never have taken so blind a way, so unintelligible and futile, to effect such an object as the counsel of Massachusetts wish to effect. Nor can any such distinction be made. If this is a political controversy, so is it a civil controversy. And if such a distinction could be forced upon the words, it would bring the section to this construction: that the Court is left to its original jurisdiction derived from the constitution, in this and other like controversies between states; but does not take exclusive jurisdiction of them by virtue of this section of the judiciary act.

But, there is another word in the front part of this section, which, in its plain, common sense meaning, I think, is much more significant than the word which the counsel have endeavoured to render so cabalistic. And that is the word all — all controversies. This same word, used in another place, has been thought all-important, and great respect has been shown to it by the counsel of Massachusetts. By the constitution, "the judicial power shall extend to all cases in law and equity, arising under this constitution," "to all cases affecting ambassadors," c. "to all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party, to controversies between two or more states," c. c. And because the repetition, of the word all is not kept up throughout the whole section, it is inferred that the constitution intended to confer a less extensive jurisdiction in some of the cases enumerated than in others.

Now, congress, in framing the judiciary act, did not deal in such far-fetched inferences. Congress saw no such meaning in that section of the constitution; and therefore it declares in this same 13th section of the act, "that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party." Congress did not intend to alter the constitution. It merely expressed what it understood to be the meaning of the section referred to. Now, although I have no quarrel with the word civil, I should not be willing to give the word all, in exchange for it. But, sir, why is it that so much effort is used to induce this Court to believe that congress is unfriendly to its jurisdiction over these cases? This is not very lawyerlike, nor very respectful to the Court. This Court will look for its constitutional powers to the constitution itself; and will not allow any other department to construe that instrument for them. In many cases, this Court have accurately defined, not only its own constitutional powers and duties, but those of the other departments, legislative and executive; as by the constitution it is authorized and bound to do on proper occasions. And, let me ask, if congress possesses such power over the jurisdiction of this Court, why was it necessary for the states themselves to make the 11th amendment to the constitution, for the purpose of taking away the jurisdiction in suits "against one of the states by citizens of another state, or by citizens or subjects of a foreign state?" But, it is not true that congress is unfriendly to this jurisdiction. There is no single instance in which congress has manifested such disposition. On the contrary, in this same section of the judiciary act, we find it conferring exclusive jurisdiction, where, by the constitution, the Court had only original jurisdiction. And without any appearance of disapprobation; congress has seen this Court, from its earliest establishment, exercising its constitutional powers in these cases, and in others in which a state was a party; adopting its rules of practice and proceeding, and its general, permanent orders applicable to them; and prescribing its processes, and the service and return of them as occasion required.

The third objection is, that congress has provided no forms of powers to enable the Court to exercise its jurisdiction. This objection, I should think, was reduced to a very small size. The writ of subpœna was issued, served and returned agreeably to the general order of the Court. And the defendant state obeyed that process and appeared, took upon herself the defence of the suit; and I understood her counsel to say, that he should not urge any objection to this proceeding of the Court. And, if Massachusetts had refused to appear, the Court would have had it fully in its power to have proceeded in the cause, as it did in that of the state of New Jersey against New York. But Massachusetts has appeared, and is now in Court. What further process then is now wanting to enable the Court to proceed to the hearing of the cause. I know of none. Yet the counsel of Massachusetts still insist that the Court cannot go on a step without an act of congress. Let me then inquire: 1. What has been done by congress upon this subject? 2. What has been done by the Court?

1. A judiciary act was passed in 1789, at the first session of congress; and a process act at the same session, which, with many additions, was rendered permanent by a second process act passed in 1792. The 13th section of the judiciary act, which gives exclusive jurisdiction to the Supreme Court in these cases, has already been read. The 14th section, enacts "that all the beforementioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not especially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeably to the principles and usages of law." The 17th section enacts, "that all the beforementioned courts of the United States shall have power to make and establish all necessary rules for the ordinary conducting business in said courts, provided such rules are not repugnant to the laws of the United States." The process act, 1st section, enacts that "all writs and processes issuing from a Supreme Court or a circuit court shall bear test," c. and shall be signed by the clerk, and sealed with the seal of the court." The 2d section enacts, "that the forms of writs, executions and other process, their style and the forms and mode of proceeding in suits in those of common law, shall be," c. "and in those of equity, and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity, and to courts of admiralty respectively, as contradistinguished from courts of common law; except so far as may have been provided for by the act to establish the judicial courts of the United States; subject, however, to such alterations and additions as the said courts respectively shall, in their discretion, deem expedient; or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same." The 18th, 24th and 25th sections of the judiciary act, first referred to, recognises the power of the Court to issue executions upon its judgments and decrees.

Thus much has been done by congress; and it is apparent that that department has always considered that every thing had been done, on its part, necessary to enable the courts to perform all their judicial duties; and fully to exercise all their judicial functions and powers. Congress saw that the courts were proceeding in the exercise of those powers without difficulty or impediment, and that no further legislative action was called for or needed. And so have the courts thought. In the case of Weyman v. Southard, 10 Wheat. 1, the Court considered itself possessed of full power over the whole proceedings in suits in equity, from their commencement to their final termination by satisfaction of the decrees or judgments.

It has been suggested by the defendant's counsel, that congress has omitted to provide for the exercise of this branch of the jurisdiction of the Court; because it did not intend that it should be exercised. This is impeaching the fidelity of congress to the constitution. But, fortunately, the imputation is wholly unfounded. It is alleged, also, that congress, by the judiciary act of 1789, has provided rules of proceeding in all, or nearly all the ordinary cases which can arise at common law, or in admiralty; but none in such cases as this. This is as palpable an error as could well be committed. In the case last mentioned, Weyman v. Southard, which was a case at common law, objections were made to the process, and to the service and execution of it; and it was contended that the proceedings were not authorized by any act of congress. But the Court, after remarking that the chancery power of the court over all the proceedings in suits in equity, from their commencement to their final termination, were unquestionable, proceeded in these words: — "It would be difficult to assign a reason for the solicitude of congress to regulate all the proceedings of the Court, sitting as a court of equity, or of admiralty, which would not equally require that its proceedings should be regulated when sitting as a court of common law." Thus we find, that while the equity powers of the Court in these cases is considered as having been placed beyond a doubt by the acts of congress, its parallel powers, in cases at common law, have required to be sustained by inferences and reasoning. And it was decided in the last case referred to, and in that of the United States Bank v. Halstead, 10 Wheat. 54, that these powers are not legislative in their character. They must, then, be simply judicial in their character; and, if necessary, must be incident to the judicial powers and functions.

Let me now inquire what has been done by the Court in pursuance of its constitutional and legal powers. In 1791, the Court adopted the following general order: viz., "That this Court consider the practice of the court of king's bench, and of chancery, in England, as affording outlines for the practice of this Court; and that they will, from time to time, make such alterations therein as circumstances may render necessary." 1 Cond. Rep. 8. In 1796, the following permanent general orders, or rules, were established, viz: "1. Ordered that when process at common law, or in equity, shall issue against a state, the same shall be served upon the governor, or chief executive magistrate, and the attorney general of such state. 2. Ordered, that process of subpœna issuing out of this Court in any suit in equity, shall be served on the defendant sixty days before the return day of the said process: And, farther, that if the defendant, on such service of the subpœna, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte." 3 Dall. 320; 1 Peters' Cond. Rep. 141. These several general orders, or rules, are still in full force, and have been practised upon by the Court from the time of their adoption. Can there be a doubt that they are strictly in conformity to the constitution, and the acts of congress referred to? In the case of The State of New Jersey v. The State of New York, 5 Peters, in 1831, the Court remark, that "At a very early period of our judicial history, suits were instituted in this Court against states, and the questions concerning its jurisdiction and mode of proceeding, were necessarily considered." The Court then proceed to review a number of the preceding cases which had been before it, in which a state was a party. "So early as August, 1792, (says the Chief Justice, who delivered the opinion of the Court,) an injunction was awarded, at the prayer of the state of Georgia; The State of Georgia v. Brailsford, 2 Dall. 402; to stay a sum of money recovered by Brailsford, a British subject, which was claimed by Georgia, under her acts of confiscation." This was an exercise of the original jurisdiction of the Court, and no doubt of its propriety was ever considered.

In February, 1793, the case of Oswald v. The State of New York came on; 2 Dall. 402. This was a suit at common law. The state not appearing, on the return of the process, proclamation was made; and the following order entered by the Court: "Unless the state appear by the first day of the next term, or show cause to the contrary, judgment will be entered by default against the said state." At the same term, a like order was made in the case of Chisholm's Executors v. The State of Georgia; and at the next term, 1794, judgment was rendered in favour of the plaintiffs, and a writ of inquiry awarded. Grayson v. The State of Virginia, 1796, 3 Dall. 320; 1 Peters' Condensed Rep. 141. This was a bill in equity; and it was in this case that the Court adopted the two last general orders beforementioned. In Huger v. The State of South Carolina, the service of the subpœna having been proved, the Court determined that the complainant was at liberty to proceed, ex parte. He accordingly moved for, and obtained commissions to take the examination of witnesses in several of the states. 3 Dall. 371; 1 Peters' Cond. Rep. 156. The Court also noticed the cases of Fowler et al. v. Lindsay et al.; and Fowler v. Miller, 3 Dall. 411; 1 Peters' Cond. Rep. 189; and the case of The State of New York v. The State of Connecticut; 4 Dall. 1; 1 Peters' Cond. Rep. 203. "It has then," proceeds Chief Justice Marshall, "been settled by our predecessors, on great deliberation, that this Court may exercise its original jurisdiction in suits against a state, under the authority conferred by the constitution and existing acts of congress. The rule respecting process, the persons on whom it is to be served, and the time of service are fixed. The course of the Court, on the failure of the state to appear, after due service, has been also prescribed." And, accordingly, the Court did proceed, and made the order, the first part of which has already been read; and which order thus concludes: "And it is further ordered, that, unless the defendant, being served with a copy of this decree sixty days before the next ensuing August term of this Court, shall appear on the second day of the next January term thereof, and answer the bill of the complainant, this Court will proceed to hear the cause on the part of the complainant, and to decree on the matter of the said bill." But, before the cause came to a final decree, the state of New York compromised the controversy with the state of New Jersey, to the satisfaction of the latter state. The case now before the Court is the same, in character, and in all the principles involved in it, as that of New Jersey and New York. Why should not the Court proceed in this case, as they decided to proceed in that; and in conformity to its subsisting rules and orders?

With permission of the Court, I will now proceed to consider the last objection which has been raised by Massachusetts to the jurisdiction of this Court; and upon which she appears mainly to rely, for producing an effect upon the minds of the Court. That objection is, that should the Court make a final decree in the cause, it will have no power to carry it into effect.

When the clear and explicit provisions of the constitution are considered, and the several laws subsequently passed by congress, for the purpose of aiding in the fulfilment of those provisions, I cannot conceive how any doubt can exist of the power of this Court to carry into effect any decree, which by those provisions, it may be authorized and bound to make. And, if the constitution stood alone, I should still entertain the same opinion. It is a universal axiom, that the grant of a principal power, ipso facto, includes in it all the minor, subsidiary powers, necessary for the exercise of the main power, as incident to it. What a construction would it be to put upon the constitution, to say that the people, by that instrument, had ordained and established a tribunal to take cognizance of, and determine certain enumerated controversies, over which, for that purpose, they had given to it full and express jurisdiction; but that the tribunal so established could not perform its duty, for want of power to cause its decisions to be carried into effect? What would the people have a right to say to a tribunal which should render to them such an account of its services; or, rather, such an excuse for the neglect of its duty?

But is it not important here to inquire, whether, in considering the present question of jurisdiction of this Court to hear, try, and make a final decree in this cause, it can be at all necessary or useful to inquire what further powers the Court may, or may not, exercise upon any future, distinct application, which may or may not be hereafter made to the Court; and upon which new and distinct application, should any such be made, the Court will then decide as it shall deem right. If, by the constitution and existing laws, the Court have jurisdiction over this cause, to hear, try, and decide it; is it not bound to exercise that jurisdiction, when appealed to: and ought the Court to decline exercising this unquestioned jurisdiction, from an apprehension that possibly it may, hereafter, be asked to do something more, which, possibly, it may not have it in its power to do? In the case of New Jersey and New York, the Court said, that, "inasmuch as no final decree has been pronounced, or judgment rendered in any suit heretofore instituted in this Court against a state; the question of proceeding to a final decree, will be considered as not conclusively settled, until the cause shall come on to be heard in chief." Thus the Court determined to hear the cause in chief, without anticipating what its final decree might be; much less, what, if any thing, might remain to be done, after the decree. And the Court did then decree, "that the complainant be at liberty to proceed, ex parte;" and further decreed, that, "unless the defendant state appeared, the Court would proceed to hear the cause on the part of the complainant, and to decree on the matter of the said bill." There are many cases in which decrees in chancery cannot be fully, if at all, executed; but that has never been considered a reason why the Court should not pronounce the decrees which it has the power to pronounce.

But, I shall not dwell longer upon these questions; because there is another position which, if sound, I think entirely obviates the objection of the want of power in the Court beyond the power of making a final decree in the cause.

That position is, that the pronouncing of a final decree in the cause will complete the exercise of all the jurisdiction which the cause can require; and will be a final, conclusive and permanent termination of the controversy. This position, upon much reflection, I believe to be sound; or I certainly should not venture to advance it before this honourable Court; as I do, entirely upon my own responsibility, as to its soundness or unsoundness.

A final decree in this cause will have no resemblance to a judgment of Court for a sum of money to be collected on execution; nor to a judgment in ejectment to be followed by an execution for possession. No process would necessarily follow a final decree in this cause. We ask no damages of Massachusetts; no delivery of possession; no process to compel her to do or undo any thing. All we ask is a decree, ascertaining and settling the boundary line between the two states.

Mr. Justice Thompson asked Mr. Hazard if the bill did not contain a further prayer; a prayer that Rhode Island might be restored to her rights of jurisdiction and sovereignty over the territory in question; and quieted in her enjoyment of them? And, that part of the bill being read, it appeared that it did contain such a prayer, in addition to the prayer that the boundary line between the two states might be ascertained and established.

Mr. Hazard said that the latter part of the prayer of the bill had escaped him; but it did not vitiate the bill. The Court would have it in its power to grant so much of the prayer as they might think right. All Rhode Island asked for was a decree ascertaining and establishing the true boundary line between her and Massachusetts. When that is settled by a decree, the rights of jurisdiction and sovereignty will necessarily follow: the decree will execute itself; and this controversy can no longer exist. When the boundary line is settled, it will be the same as all other established boundary lines; and the relative situation of Rhode Island and Massachusetts will be the same as that of all other adjoining states.

And why should not Rhode Island be placed upon the same footing, in this respect, with her sister states? Why should her jurisdictional boundary line be left in dispute, and she exposed to encroachments; when all other controversies of this kind have been lastingly settled?

Am I not sustained, in the position I have here taken, by the opinions and acts of the learned men who framed the articles of confederation? They enacted that the decrees of the court of appeals, in the cases over which jurisdiction was given to it, should be final and conclusive. And it was their opinion that nothing more than a final decree would be necessary; and, therefore, they provided for no further proceedings. And, what ought to be conclusive is the fact, that although a number of decrees in such cases were made by the court of appeals; no difficulty was ever experienced, and no further process was ever found to be necessary.

It is true, that after the line is settled, Massachusetts may do other wrongs to Rhode Island for which other remedies may be necessary; and so she may to any other state: but this controversy about the line will be at an end. Should Massachusetts hereafter encroach upon Rhode Island, that will be a new aggression; the same as if she should encroach upon any other state, near or distant; the same as if she should encroach upon the state of New York, or Connecticut, or New Hampshire; or, again, upon Rhode Island, on her eastern boundary: with all of which states Massachusetts has had controversies about her boundaries, and has always been found the aggressor. But when those boundaries were ascertained by the competent tribunals, all difficulties were at an end. When Rhode Island, upon the decision of the king in council, received under her jurisdiction, her county of Bristol, and her towns of Tiverton and Little Compton, over which Massachusetts had long exercised jurisdiction, she met with no obstructions from that state. Neither did New Hampshire, whose controversy with Massachusetts, was decided by the same tribunal. Still the Court are told by Massachusetts that they cannot carry their decree into effect. Allow me to ask, sir, in what possible way Massachusetts can have it in her power to defeat or evade the effect of that decree? The decree itself, the moment it is pronounced, will establish a new state of things between Massachusetts and Rhode Island. And what are the means that Massachusetts can resort to, to prevent that decree from taking full effect by its own force and operation? I should be glad to hear the attorney general of Massachusetts inform the Court what it is that that important state is going to do to set the decree of this Court at defiance, and render it a nullity? Massachusetts is not going to erect a line of batteries along this strip of land; nor to station a military force there to take hostile possession of it. If she should, it would be invasion; an ample remedy for which is provided in the 4th article 4th section of the constitution. And Rhode Island would be under no necessity to apply to this Court for an injunction in such a case. And this again shows the meaning and propriety of the expression "civil controversies," used by congress; and, no doubt, meant by the constitution. I ask again, then, what can Massachusetts do to prevent a decree of this Court taking full effect by its own force and operation? She can do nothing. She can only say that she will retain jurisdiction over this district, the decree notwithstanding. But let us examine what she can make this amount to. Massachusetts, as a state, is not the proprietor of this strip of land. If she own any land there she will, of course, still own and retain it; and her right and title will be held as sacred as those of any other owners of the soil. There is no shire town within this district; and of course, probably, no public buildings belonging to the state. If there are, they will still be her property, though not appropriated to the same uses. There will be nothing, therefore, which Massachusetts can retain the possession of, which she will be required to relinquish. Jurisdiction over the district it will be out of her power to exercise, for she will not have it; that (in her) will be extinguished by the decree, ipso facto. What jurisdiction, after the decree, can she exercise? She cannot number the inhabitants of this district as part of her population, or of her militia; for they will not be so any more than the inhabitants of the county of Providence. And, no more can she tax them, or their lands, or other property; for they will not be subject to her laws. Her tax-gatherers can collect no taxes; her ministerial officers execute no process within that district, for it will be out of the jurisdiction of their state. And, should they attempt to do so, they will carry no Massachusetts authority with them over the boundary line established by the decree of this Court. They will be trespassers; and subject themselves to the penalties provided for the punishment of trespassers. With as much right might Massachusetts send her officers into any other part of the state as this; but the civil authorities of Rhode Island would have no difficulty in dealing with such offenders. They would be violators of the laws of the land; not only of the laws of Rhode Island, but of the constitution of the United States, and of the acts of congress, under the authority of which the decree of this Court would have been made. They could not escape conviction and punishment. And any countenance Massachusetts might give to them would but aggravate the offence and the punishment. No aid from this Court would be needed. The existing laws would furnish a perfect remedy for the wrongs attempted to be done.

Those Massachusetts' officers, sheriff, tax-gatherers, or whatever they might be, would have no authority to demand aid from the people of the adjoining county in Massachusetts. Nor is it probable that any of those people, (not being bound to obey such demand,) would have any concern in violating the rights of another state, established by a decree of the Supreme Court of the Union. But should those officers, on any occasion, carry with them a sufficient body of men from Massachusetts, to enable them, for the time, to seize upon the property or persons of any of the inhabitants of the state of Rhode Island; (of which this district would then be a part;) and to escape into Massachusetts before they could be arrested, they would all alike be criminals, and punishable as such. And, by the fourth article, second section of the constitution of the United States, and that of congress passed in conformity thereto, the executive authority of the state of Massachusetts, on demand made by the executive authority of the state of Rhode Island, would be bound and compelled to deliver up those criminals to be removed for trial to the state having jurisdiction of the crime. And here again, Rhode Island would have a perfect remedy without the interposition of this Court. Nor would Massachusetts have it in her power, effectually, to obstruct the magistrates and civil officers of Rhode Island in the execution of their official functions. Those magistrates and officers, in the performance of their lawful duties, within the jurisdiction, and under the authority of their own state, would have nothing to apprehend from any quarter. Should any of them be lawlessly seized, and carried within the jurisdiction of Massachusetts, still they would have nothing to apprehend. The decree of this Court, the laws of the state in which they acted, and the constitution and laws of the United States, would sustain and save them harmless. These authorities, the respectable judicial tribunals of Massachusetts, would not set at defiance; and if they should, their judgments and proceedings would speedily be revised and corrected here.

Thus, we find that it would be wholly out of the power of Massachusetts, to prevent a final decree of this Court from taking full effect, by its own force and operation.

I could not help feeling great surprise, when I heard the attorney general of Massachusetts so solemnly and portentously warning this Court of consequences, and expressing his anxious hopes, that if it should decide against Massachusetts, it will, for the honour of the Court, and for the honour of the country, be sure to find some way to execute its decree. What! Does Massachusetts threaten? Is Massachusetts ready to become a nullifying state? and to set up her own will, in defiance of the decrees of this Court, and of the constitution itself? This Court will not make a decree against Massachusetts, unless it shall be satisfied that the constitution authorizes it, and that equity requires it. And for Massachusetts to expect to prevent the Court from making such a decree as it may deem constitutional and equitable, by telling the Court how formidable she is, and how contumacious and lawless she means to be in her defiance of its decrees; this, it appears to me, is almost as deficient in policy, as it is in modesty. But let Massachusetts take her own course, and whatever that may be, it will excite no apprehension in Rhode Island; although she may grieve that so noble a state should conduct in such a manner as to tarnish her high and well merited renown. If, sir, the principles and positions I have endeavoured to establish are sound, and have been established, I must think that they reach and dispose of all the material objections which the counsel of Massachusetts has raised against the jurisdiction of this Court.

There were a great number of other objections, or suggestions and statements made by the counsel, some of which I will now just advert to; although I do not consider them as having any bearing upon the question before the Court. It is alleged that the five thousand inhabitants of the district in question, (I know not how many there are,) have a right to be parties to this suit, and are not. If this was so, it would be no objection to the jurisdiction of the Court. The Court would take care that they were made parties before it proceeded further. But all the proper parties are here in Court. This controversy is about state jurisdiction, not titles to soil and freehold. I suspect, however, that if those inhabitants were consulted, they would not consent to be made defendants; but would rather join with the complainant state. They are taxed hard in Massachusetts, and would have no state taxes to pay in Rhode Island. And, at one time, a very large number of the respectable inhabitants of that district, petitioned the legislature of the state of Rhode Island to be received into that jurisdiction, to which they claimed rightfully to belong.

It is objected, also, 1. That the bill contains matter in bar to itself. 2. That the bill admits that Rhode Island was never in possession, and that the suit is barred by prescription. 3. That the controversy has been settled. These might be proper matters for discussion and proof (they are not proved yet, and cannot be, for not one of them is true,) upon the trial of the cause; but, evidently, have nothing to do with the question of jurisdiction. Because it appeared that the Massachusetts charter of 1628, upon a scire facias from the court of king's bench, was revoked and annulled in 1685; and that she did not get a new charter until 1691; her counsel has stated that Rhode Island, while a colony, abandoned and surrendered up her charter. This is a mistake. Connecticut and Rhode Island never did surrender their charters; although they were demanded, and great efforts made to obtain possession of them. The Connecticut charter was hidden in the hollow of the venerable old oak tree at Hartford; and that of Rhode Island was also preserved secure from its enemies, and is now in her secretary's office at Providence. The counsel (in sport, I suppose,) has indulged his fancy in describing Rhode Island as she would have been had the claims upon her territory, set up by Plymouth on the east, and Connecticut on the west, been successful. Very true; and Rhode Island would have been stripped indeed; especially with Massachusetts helping herself to five miles more of her territory on the north, which I suppose the attorney general of Massachusetts thinks was quite venial, while Rhode Island's territory was looked upon as free plunder. But those claims upon the territory of Rhode Island, on the east and west, were found and decided to be unjust. And it was Massachusetts herself, not Plymouth, which had got possession of the county and towns within the limits of Rhode Island, as beforementioned, and from which, after a faint struggle, she was compelled to retreat. There is no probability, that a small state will make unreasonable claims, much less encroachments upon large ones.

The counsel of Massachusetts have asked the Court to consider the character of the original colonial charters, and have read passages from Bancroft's History, to show how loose and defective those charters were, and how difficult it would now be to decide controversies growing out of them. That a case will be a difficult one to settle, is not a very good reason to offer for a court's not taking eognizance of it. But in the present case, no difficulty whatever can arise from such a source. The charters both of Rhode Island and Massachusetts are clear and intelligible in this particular. Rhode Island by her charter, is bounded north by the south line of Massachusetts; and that line, by the Massachusetts charter, was to be three miles south of the most southerly part of Charles river; the sole question, therefore, to be settled, is a question of construction of that part of the Massachusetts charter. One set of the Massachusetts commissioners appointed to settle this line with Rhode Island, reported correctly to their legislature the construction which each state relied upon. The Rhode Island construction was, that the most southern part of Charles river proper — Charles river itself, that is, what was known by the name of "Charles river," was the point from which to measure off the three miles. On the other hand, Massachusetts insisted that the most southerly source or spring head of any run of water, running northerly and finding its way into Charles river, was to be taken as the most southerly part of Charles river. And accordingly they found a brook, called Mill Brook, which run from the south into Charles river. This they traced up to a pond, called "Whiting's Pond," out of which the brook run; then going to the south end of the pond, they found another brook, called Jack's Pasture Brook, which they traced up south to its spring head, and this they called the most southerly part of Charles river. Surely there can be no difficulty in deciding by the charters, which of these constructions is the correct one. These are the merits of the case, and I am sensible that they have no bearing upon the question of jurisdiction before the Court. But the counsel of Massachusetts have repeatedly introduced the merits; and I presume it is not improper for me to follow him so far as to state them correctly.

Precisely the same question was decided more than an hundred years ago, in the controversy between Massachusetts and New Hampshire. The northern boundary of Massachusetts is defined and limited in her charter, in the same terms as her southern boundary. She was to have three miles north of the most northerly part of the Merrimack river. Upon this she set up the same claim upon New Hampshire, as she now does upon Rhode Island; and by her construction, she would have taken the whole of New Hampshire, and the greater part of the province (now state) of Maine. But her pretensions were decided to be wholly unfounded and unjustifiable; and she was compelled to draw herself within her charter limits. And why has she not respected that decision, and contented herself with the same limits on the south as on the north?

Massachusetts, also, had precisely the same controversy with the state of Connecticut, about the westerly part of this same line; that state and Rhode Island, by their charters (granted about the same time, 1662-3) being both bounded northerly upon the same straight line, to be drawn due east and west throughout. But Connecticut would not submit to the encroachments of Massachusetts. And, although she had entered into a written agreement with her, establishing the line as it then was; and that agreement had been formally ratified and confirmed by the legislatures of both states, (which was never the case with us;) yet Connecticut proved, that misrepresentations and impositions had been practised upon her commissioners and government, in the running of that line; and she brought Massachusetts to a sense of justice, and obtained from her a large part, and not the whole of the territory which the latter had wrongfully taken within her limits. And now, whenever you look upon any map including the three states, or that part of them, you see the Connecticut northern line is miles in advance of that of Rhode Island, which ought to be a continuation of it; and the government of Massachusetts has not caused, and cannot cause any survey or map of that fine state to be taken or published; without recording anew and emblazoning her unjust encroachments upon Rhode Island.

A singular appeal was made to your honours, in the gentle tones of persuasion by the counsel of Massachusetts. They remind the Court that courts of equity do not countenance family quarrels, in which the honour and feelings of families may be exposed to injury. Very well. And here is the important state of Massachusetts, surrounded by six other states, all of which show her great respect and deference, and manifest a desire to continue in strict harmony with her. But Massachusetts is not satisfied with this. She encroaches, and encroaches upon her neighbours until their patience is exhausted; and after long forbearance they are compelled, one after another, to complain of her aggressions and seek redress. And thus called upon, here comes Massachusetts quite undisturbed, and to smooth matters over, talks about family disputes, and family honour, and the relations between neighbouring sister states, which make it improper to listen to their trifling complaints against each other; and so she advises that the complainants be reprimanded and sent home. But this did not answer before the old tribunal of the king in council, nor before the American court of appeals. Rhode Island, the last of the injured states, whose grievances alone remain unredressed, entertains a high respect for her elder sister, Massachusetts. But I take it upon myself, to assure this honourable Court, should it think itself bound in justice to make a decree in her favour, she will not be offended nor complain of it; although the decree must be against that respected elder sister.

Allow me to conclude my remarks more seriously, and with matter more important. The counsel of Massachusetts have talked much of the proper division of powers between the three great departments of government; the legislative, executive, and judicial. And they insist that the judicial is not the proper department to have cognizance of these controversies. Pray, have you heard them point out which of the other departments is the proper and appropriate one; or what other tribunal there is to exercise this jurisdiction? The idea of investing the executive with jurisdiction over controversies of any kind, whether political or civil, between states or individuals, has never entered into the head of any man. And is it not evident, that jurisdiction over such controversies cannot consistently be exercised by the legislative department of any well-balanced government? And, when the structure of the federal and state governments, relatively to each other, the partition, limitation, and adjustment of their respective powers, is considered, the incompatibility of such a legislative jurisdiction is still more glaring. And, therefore, the constitution of the United States has not permitted the exercise of any such jurisdiction to either the legislative or executive department; but has expressly conferred it upon the judiciary, which is free from all the objections that lay against the other two. What then does Massachusetts mean? Does she mean, that in her controversies with any of her sister states, she is not amenable to justice, before any tribunal? — And that there is no remedy for an injured sister state, for any wrongs she may suffer at her hands? That there shall be no wrong without a remedy, is a first principle, an axiom in all free governments. Is this the country in which that great fundamental principle of right and justice is to be first abandoned?