The State of Rhode Island v. the State of Massachusetts, 37 U.S. 657

Lead Opinion

Mr. Justice Baluwin

.delivered the opinion'of the Court:'

At the January term óf this Court, Í 8 32, the-'plaintiff-filed: a bill ifi equity, presenting a case arising under the various .charters fro ri,-the crowd of-Engl and' to -the Plymouth Company, in 1621;t'o:MasSa-chusettsin, 1629; to.Rhode Island in 1663'; the'new charter.to Massáchusetts in 1691: together with sundry, intermediate Drocéédirigs of the councihof -Plymouth: the fesult-of which .was- to vest; in 'the colony. Of Massachusetts ánd. the king;,all the rights of propriety, and government previously .granted -to that company as a political corpa* ration.. The bill' also set out the repeal of the original; charter of Massachusetts on a scire facias, in the court of chancery in England, the graht by the crown and acceptance by -the colopy of a -new charter^ subsequent'to the charter fo Rhode Island.

All these acts are. specially anti at large set out in the-bill, but need not in this stage of the cause be referred to. by thé Court iri detail. They presentthe claim of the plamfitf to the territory irycontroversy between the two states; in virtu'e of .thes.e charters, according'to trie., boundaries therein-described,

-Independently of the claim undef thé «hartenofl 663, the nlaintiff asserts a previous right iri virtue-of. grants from the,-Indians; arid settlements-made under a title thus acquired; and 'also asserts, that under both -titles, the inhabitants of -Rhode'-Island-máde settlements' on -the lands immediately south of the.,.boundary between- thé two colonies'as-now asserted; wbíéh settlements were.so made and continued from the. time of the purchase from the Indians, beforé; under the char ter, arid aftérwards, though the line was not defined" and disputed I

The. bill fhen procéeds. to • state .the existence of. controversies be* tween the two. colonies;, at a very early period; to settlé'which;commissi'oners were appointed by each colony in Í709, and at. Various Other periods down to 1809; and sets forth, the proceedings of thte commissioners óf fhe colonies before the revolution,'and the states afterwards, down to 1818.

For the present purposes, of this, casé, it is necessary to refer only to one subject matter of these proceedings during this whole period, which is .presented in the bill in' the' same aspect throughout; that subject is the agreement of 1709, and 17Í8; and the'acts done pursuant thereto, .which are recited at large in the bill. It then state's 'the-agreement’ of the commissioners of the two colQnieSj that-a line should be run and-marked as their boundary, which Was done; a survey made and returned, together with all the proceedings to the legislatures of the respective colonies, accepted by Massachusetts, but as* the bill avers, not accepted and ratified by. Rhode Island; This is the line now cláimed by .Massachusetts; and whether the .charted, line or that; is the trufe Jinfe of right and boundary between the two states, is the only point in c'ontroversy in this case.

-The bill avers'that this line was agreed'on in consequence of are-presentation by the Massachusetts’ commissioners to those 'of Rhode Island, that in 1642, Woodword and Saffrey had ascertained the point, three milefe south of Charles river; which, by the-charters, of.'both colonies, was to form their common boundary by a line to tun east and west therefrom.. That Woodword and Saffrey had set up.a stake at that point on Wrenthám Plains, ¿s the' true southern boundary of Massachusetts; That the Rhode Island commissioners, confiding in such representation, believing that such point had been truly ascertained, and that such stake was no more than three miles from Charles river, south;-entered into and made the agreement of 1710-11, -which was executed by the commissioners on both sides.

In the .agreement is this clause: That- the, stake set up by Wóod'word ánd Saffrey, approved artists,, in 1642; and since that often re* newed, in lat. 41° 55' N., being three English'miles'.south of Challes river, in its southernmost part, agreeably to the letters patent to Massachusetts, be accounted and allowed as the commencement of the line between the - colonies, and continued between them as decyphered in the plan of Woodword and Saffrey, on record in the Massachusetts government.

It is then averred in the bill, that no mark stake, or monument then existed (1710-1.1) by which the place at which Woodword and Saffrey were alleged to have set up the stake could be ascertained; that none of the parties to the agreement.went to such place;- that no survey was made, no line run, or any meá'ns taken to ascertain where it was; whether it was three miles' or ,more from Charles river; whether Woodword and Saffrey ever run the line, or whether it was, the true boundary line between the colonies, according to their respective charters. That Massachusetts took wrongful possession of the territory in question, in which Rhode Island never acquiesced, and to which she never agreed; but continued to assert her claim from the time of the agreement, to the filing of the bill, to all the territory embraced in her charter, and sovereignty and jurisdiction within and over it, as claimed in the bill. The bill denies that any line Was evér run by Woodword and Saffrey, in 1642; avers that, the agreements'of 1710-11, which adopted it, were unfair, inequitable, executed under a misrepresentation and -mistake as to material facts; that the line is .not run according to the charters of. the colonies; that-it is more than seven miles south of the southernmost part of- Charles river; that the agreement was made without the assent of the king; that Massachusetts has continued to hold wrongful possession of the disputed territory, and prevents the exercise of the rightful jurisdiction and sovereignty of Rhode Island therein. The prayer of the bill is to ascertain and establish the northern boundary between the states, that- the rights of sovereignty and jurisdiction be restored and confirmed to the plaintiffs, and they be quieted in the enjoyment thereof, and their title; and for other and further relief.

On the service of this bill on the governor and attorney general of Massachusetts, agreeably to a rule of this Court, the legislature passed a resolution, authorizing the appearance of the state to the suit, and the-employment of counsel by the governor, to defend the rights of the state. In obedience to this resolution the governor after-reciting it, appointed counsel under the seal of the state, to appear &nd make defence; either by objecting to the jurisdiction of .this Court, or by-plea, answer or otherwise, at his discretion, as he should judge most proper.

Under this authority, an appearance was entered; and at Jaiiuary term, a plea in bar. of the plaintiff’s bill was filed, in which it was' averred: That in l'642, a station or monument was erected and fixed at a point believed, to be on the true southern boundáry line of Massachusetts, and a line continued therefrom to the Connecticut ri-ver, westwardly; which,station or monument was well known, notorious, and has ever since been called Woodword and Saffrey’s' station, on Wrentham Plains. It then sets up the agreement of 1709, and subsequent proceedings at large; avers that the whole merits of plaintiff’s case, as set forth in the bill, were fully heard, tried, and determined, in the heáring and by the judgment of the Rhode Island commissioners; that the agreement was fair, legal, and binding between the parties; that it was a valid and effectual settlement of the matter in controversy; without cover, fraud, or misrepresentation, with a full and equal knowledge of all. circumstances by both parties. That such agreement is still in full force, no way waived, abandoned, or relinquished; and that the defendant has held, possessed, occupied, and enjoyed the land, propriety, and jurisdiction, according to the well known and easily' discovered station of Wood-word and Saffrey, and the line run by them therefrom, from the date of the agreement to the present time, wihout hindrance or molestation.

The plea then sets forth the subsequent agreement of the two colonies, in 1717 and 171,8, touching their boundaries, and a running and marking thereof by their respective commissioners, appointed for the purpose of finally settling the controversy; who, in 1718 agreed that the stake of Woodword and Saffrey, should be the point from which the dividing line should be run, and be forever the boundary between the two governments; notwithstanding’ any former controversy or claim. That this agreement was recorded, ratified, and confirmed by the general assembly of Rhode Island; that no false representation was made to their commissioners; that the agreement was concluded fairly, in good faith, with full and equal knowledge by the respective parties, has never been annulled, rescinded or abandoned, and was in pursuance and completion of the agreement of 1709. The report of the commissioners is then set out, stating that in 1719 they run and marked a line west, 2° south from the stake of Wood word and Saffrey, at which they met, as the boundary; which report was approved by Rhode Island in the same year. The plea then makes the same averment as to these proceedings of 1717, 1718, and‘1719, as it did in relation to those of 1709, 1710, and-1711; pleads both agreements and unmolested possession by the defendant, from their respective dates to the present time, as a bar to the whole bill, and against any other or further relief therein; prays the judgment of the Court whether the defendant shall make any further answer to the bill, and to be dismissed.

Then the defendant, not waiving, but relying on his plea, by way of answer, and :m. support of; the- plea ás.a bar to the- bill,- avers that' both-agreements Were a valid and effectual settlement of the-whole matter of controversy in the case, as is insisted on in the plea.

To this plea a replication was 'put in* but 'afterwards withdrawn, and notice giveii that.the,cause would be put- down For hearing on the.plea: ;he cause was continued at the last term.; the plaintiff gave notice that he should, at this term move to amend the -bill; and the casé is no.w before us -for .consideration, on a.motion by the defendr aht, to dismiss the bill for want of jurisdiction in the cause..

Hpwever late, this Objection-has .’been .made, or may be made-in ány cause; in an .'inferior or appellate court of the United-States,, it ,ihustibe considered and decided,{before any court can move one furtherstep: in the cause'; as -any movement is'necessarily flteexeireise .of, jurisdiction. Jurisdiction is the .powér to he^r and determine the subjeef.matter in controversy, between parties to a suit, to .adjudicate or. exercise any judicial power over .them'; the question is, whether op .the casé before á Oourt, their action is judicial' Or extra-judicial; with, or without the. authority Of law,.to'render a judgment or’ de* . cree . upon the ¿rights of ..the litigant partios. If. the ’ law- confers the power to:render a judgment or. decree, then the court, has jurisdiction; .what .shall be. adjudged or decreed between, the parties, and. with whiOh.is the ,right of ±h,e cáse,.is judicial action, by-hearing and determining,it. 6 Peters, 709; 4 Russell, 415; 3 Peters, 203-7.

A motion. to djsmiss a cause, pending in the .courts.of the United’ State's,,is not-analogous to a-plea-to the jurisdiction'’of a court.of common law-or equity-i:n England; there the- superior courts, have a general -jurisdiction over- all persons within, the realm, , and. all causes ,of action between them, .It.-depends on the subject matter, whether the.-jurisdiction shall be exercised by a court Of law or equity’;, hut that - court,, to which it appropriately, belongs, can act Judicially upon the party apd the subjeet of the suit; unless it shalL be made apparent to the court that the judicial determination of the case has been withdrawn from the', cóurt, of general jurisdiction, to an inferior and limited one. It is a necessary presumption that the cour.t-of general.jurisdiction can act upon the given case, when nothing appears to the . contrary ; hence-has-arisen the rule that the party claiming an exemption from its process, must set out the reasons by .a special plea -in abatement; and- show that; some interior court of .law or. equity has. the ■ exclusive ■ cognizance of the case;, otherwise'the superior court must proceed,; in virtue of its general jurisdiction. This rulé, prévails.both at law and in equity; 1 Ves. sen. 204; 2 Ves. sen. 307; Mit. 183. A motion to dismiss, therefore, Cannot beentertained, as.it does not.and cannot'disclose a, ease:of éxcepbiorií .and ifá-pleá in abatement is put in,, it ,must acit only make out the exception, hut point, to the particular -court to. which the case belongs. • A-pIaintiff inlaw or equity, is not to be*driven from-court tO'eóurt by such pleas; if .a defendant ,seeks to quash a. writ, or- dismiss a-hill for such cause, he -must give the plaintiff.a better one, and -Shan, never put hr a second plea to the' jurisdiction of that court, to. which, he has driven the plaintiff by his plea. 1 Ves. sen. 203. Therp-aie -other classes'of,, cases where the objection-.to' the jurisdie* tion-is of a different nature, á's on a bill in- chancery; that the Subject matter is cognizable only by the king ,in council, end. not by. any judicial power, 1 Ves. sen. 445; or .that the parties, defendant,..cannot be brought before any municipal, court;; on account of their, sovereign- character, .and the nature off he controversy;: as 1 Ves. jr. 371, 387; 2 Ves. jr. 56, 60; or in the very common cases which present the.question, whether the cause properly.belongs to a court of law or-equity To such, cases, , a plea jn abatement, would not be. applicable, because, the plaintiff could not sue, in-an inferior court the objection goes to. á- denial-Of any iurisdictiop of a municipal court in one class fit cases; -and, -to.the jurisdiction .of any-court of equity or of law in/thp other : ■ on which last, -the court decides-according .to. their legal'discretion. . An objection to jurisdiction, on the ground of exemption.from .the process of, the. court' ict.which thé süit-jis, brought, or'lhe. manner in.which a defendant is-brought into-it/is' waived by appearance and- pleading, to- issue. 10 Peters, 473; Toland v. Sprague, 12 Peters, 300; but wheq -the objection goes -to the power of the .court over the parties, -or. the^ subject -matter, the defendant need not; for he cannot give: the plaintiff a better-writ or bill. Where -no inferior, court can- have, jurisdiction of a-case in law or equity, the ground, of the- objection-is not taken by plea in, abatement, as. an exception of the given-, case, from , the otherwise, general jurisdiction of the court; appearance, does not Cure the defect of iu* dicial power; and it may be relied on by plea, answer,-demurrer,: or at .the trial or hearing,...unless it goes to the manner of bringing the defendant into court, which- is waived bv submission to the process.

As a.denial of jurisdiction over the' subject matter of a suit bet-tween parties within the realm., over., which and whom the court has power, to act, cannot be'.successful in an English , eourt-of general ju-risdiction; a motion like the present could not foe sustained consistently with the principles of its constitution. But as this' Court is one of limited and special original jurisdiction, its action must be confined to the particular cases, controversies, and parties Over which the constitution and laws have authorized it to-act; any proceeding without the limits prescribed, is coram non judice, and its action a nullity. 10 Peters, 474; S. P. 4 Russ. 415. And whether the want, or excess of power.is objected by a party, or is apparént to the Court, it must surcease its action, or proceed extra-judicially.

Before we can proceed in this cause we . must, therefore, inquire whether we can hear and determine the matters in controversy between the parties, who are two-states of this Union, sovereign \yithin. their respective boundaries, save that portion of power which they h,ave granted to the federal government, and foreign to each other for all but federal purposes. So they have been considered by this Court, through a long series of years and cases, to the present term; .during which, in the case of The Bank of the United States v. Daniels, this Court has declared this to be a fundamental principle of the (jonstitution; and so we shall consider it in deciding on the present motion. 2 Peters, 590, 91.

Those states, in their highest sovereign capacity, in the-convention of the people thereof; on whom, by the revolution, the prerogative of the crown, and the transcendant power of parliament devolved, in a plenitude unimpaired by any act, ahd controllable by no authó-. rity, 6 Wheat. 651; 8 Wheat. 584, 88; adopted the constitution, by which they respectively made to the United States a grant of judicial power over controversies between two or more states. By the institution, it was ordained that this judicial power, in cases where a state was'a party, should be exercised by this Court as one of original jurisdiction. The states waived their exemption from, judicial power, 6 Wheat. 378, 80, as sovereigns by original and- inherent right, by their own grant of its exercise over themselves in such cases, but which they would not giant’to any inferior tribunal.. By this gránt, this Court has acquired jurisdiction over the parties’ in this cause, by their own-consent and delegated authority; as their agent for executing the judicial power of the United States- in the. cases specified. Massachusetts' has appeared, submitted to the process in her legislative capacity, and plead in bar of the plaintiff’s action, certain matters on which the judgment of the Court is asked; all doubts as to jurisdiction over the parties are thus at rest, as well by tbe grant of power by the people, as the submission of the- legislature to the process; and calling on the Court to exercise its jurisdiction on .the case presented by. the bill, plea, and answer.

Our next inquiry will be, whether we have jurisdiction of the subject matters of the suit, to hear and determine-them.

That it is a cbntroversybetween two states, cannot be denied; and though the constitution does not, in terms, extend the judicial power to all controversies between two or more states, yet it in terms excludes none, whatever may be their nature or subject. It is,- therefore, a question of construction, whether the controversy in the present case is within the grant of judicial power. The solution of this question must • necessarily depend on the words of the constitution; .the meaning and intention of the convention which framed and proposed it for adoption and ratification to the convéntions of the people of and in the several states; together with a reference to such sources of judicial information as are resorted to by all courts in construing statutes, arid to which this Court has always resorted in construing the constitution. It was necessarily left to the legislative power to organize the Supreme Court, to define its powers consistently with the constitution, as to its original jurisdiction; and to distribute the residue of the judicial power between this and the inferior courts, which it was bound to .ordain and establish, defining their respective powers, whether original or appellate, by which and how it should .be exercised. In obedience to the injunction of the constitution, congress exercised their power, so far as they thought it necessary and proper, under the seventeenth clause of the eighth section, first article, for carrying into execution the pow-ers vested by the constitution in the judicial, as well as all other departments and officers of the government of the United States. 3 Wheat. 389. No department could organize itself; the constitution provided for the organization of the legislative power, and the mode of its exercise, but it delineated only the great' outlines of the judicial power; 1 Wheat. 326; 4 Wheat. 407: leaving the details to congress, in whom was vested, by express delegation, the power to pass all laws necessary and proper for carrying into execution all powers except their own. The distribution and appropriate exercise of the judicial power, must . therefore be made by laws passed by congress, and cannot be assumecTby any .other department; else, the power being concurrent in the legislative and judicial departments, a conflict between them would be probable, if not unavoidable, under a constitutibn of government which made it the duty of the judicial power to decide'ah cases in law or. equity arising odder it, or. laws passed, and treaties made by'its authority.

By thejudiciary act- of 1789, the judicial system, of the United State? was. organized, the powers of the different courts defined}, brought into' action, vand-the manner-pf their exercise ¿regulated;-,' The 13th section provided, “That the Supreme Court shaft have exclusive, jurisdiction of aft controversies- of a civil nature,-'where a átate is a 'party, except between á state and its citizens^ and except .also between a- state and citizens-of other-states or-aliens; in Which latter, case, it shaft have-original} but' nbt-excTusive jurisdiction.” 1 Story’s Laws, 59. ■

The power of congress to;, make this provision for carrying into execution- thérjudicial pow'er ijx such cages, has newer been, and we think .cannot be.Quéstioned; and taken dn' connection 'with ib,b Constitetibp, presents-thd great question-in this .cause, which is- One of construction appropriate to judicial pow-er, and- exclusively b'f ju* diciál cognizance,dift the legislative'- power acts again -Upon it. Vide •3 Peters., 203; In deciding, whether the present .case is embraced or excluded by the constitution and judiciary act, and whether if-is a case .of- lawful - original cognizance bv this Court, it -is tbe-exeroise. of jurisdiction; fbf-it must, be in the-legal discretion' of'the Court, to'retain' or-dismiss the bjlb of .the -plaintiffs. -Act as we may feel it our -duty to do, there-is no appeal from our judgment, sávé'-to the amending power of the constitution; which can annul not only-its judgments, but the Court itself. So that- the trúe question is necéssarily,.Whe'thter-'we--will' so exercise. our jurisdiction-as to--give"a-judgment pn'the'merits of the case-as presented by the parties,- who áreeapáhle of -suing and being- sued'i-ri-this Court, in law;or equity, according to1-the-nature of the cáse, and controversy between-the respective .'states.

This'Court,.in-construing the constitution a's> to the grants-of power's'to the United State?, and the restrictions upon the-states, haspver .held, that an exception pf -any particular case,'presupposes that those which are not excepted are embraced within the grant or prohibition: and have laid it down as a general rule; that Wher-e no ex-' ception is made in terms, none-will bfe fnade by inere-implication or -construction. 6 Wh. 378; 8. Wh. 489, 490; 12 Wh. 438; 9 Wh. 206, 207, 216.

Thenthe only question is, whether this case-comes within the rule. <ir. presents an exception, according to the principles of construction. adopted and acted on by this Gourt, in cases involying the expor sition of the constitution and laws of the.United States, which are construed' as other instruments..granting ppwer or' property... 12 Wh. 437; 6 Peters, 738, 740, That some degree of'implication must be given to words, is a proposition of universal adoption:- implication is but another term for meaning and intention, apparent, in the writing, on -judicial inspection'; i£ the. évident consequence,’? 4 Bl. Com. 250; “or some necessary consequence resulting from the law,” 2 Ves. sen. 351; . or the words of an instrument;' in the construction of which, the words, the subject, the-context, the intention of the person using them, are all -to be taken into view. 4 Wh. 445; 6 Peters, 739, 741. Such is the sense in which, the common expression is used in the books, “ express words or-necessary -implication,” such as arise on, the'words, taken, in connection, with cother sourcesof construction; but not by conjecture,.supposition,-or mer,e reasoning-on .the meaning or intention of the writing. . All rules would be subverted if mere extraneous matter should, have; the* effect of interpreting a supreme law, differently-from its obviolis or necessarily to.be implied sense:*. Vide 9 Wh. 188, &c.; so, apparerif as4p dverruíe the -words used; 6 Wh. 380. “-Controversies, betw'eén two' or more states,” “all controversies'of<-a civil nature,where a staters a-party;” .are broad comprehensive terms; by no obvious meaning' of nect-^ary implication, excluding-those which relate-to-the title', boundary, jurisdiction, or sovereignty of - a state. 6 Wh. 378.

- The judiciary act makes certain ’ exceptions, which''apply only to cases of private persons, and cannot embrace a cáse of state against state; established rules forbid the extension of the exception to such cases,-if they.are of a, civil nature. - What.then are “controversies of a civil nature,” between state and state, or more than two states ?

We must presume that congress did not mean to exclude from our jurisdiction tbose controversies', the decision-of which the states had. confided to the judicial power, and are.bound, to give to. the consti’-, tution and laws such a meaning as will make them harmonize, unless, there is an apparent or fairly to be implied conflict' between their respective provisions, ■ In the construction of the constitution, we must look to the history of the times, and examine the state of things existing when it'was fr.amed and .adopted, 12 Wh. 354; 6 Wh. 416; 4 Peters, 431-2; to ascertain the old law,.the mischief and the remedy. It is a part, of the public history of-the United States, of -which we cannot be judicially ignorant, that .at the adoption of-the constitution, there were existing controversies between eleven states respecting their boundaries, which arose under their respective! charters, and had continued from the first settlement of the .colonies. New Hampshire and New York contended for the territory which is now Vermont, until the people of the latter assumed by their own power'the position of a state, and settled the controversy, by taking to -.themselyes the disputed - territory, as the rightful sovereign . thereof. Massachusetts and Rhode Island are now before us;\Connecticut claimed part of New York and Pennsylvania. She submitted to the 'decree of the council of Trenton, acting pursuant to the authority of the confederation, which decided that Connecticut had. not the jurisdiction; but she-claimed the right of soil till' 1800; New Jersey had. a controversy with' New York, which was before this Court in L832; and one yet subsists between New Jersey and Delaware. Maryland and Virginia were contending about boundaries in 1835, when- a suit was pending in this Court;' and the dispute is yet an open one. Virginia and North Carolina contended for boundary till 1802; and the remaining states, South Carolina and Georgia, settled their boundary in. the April preceding the meeting of the general convention, -which framed and •proposed the constitution. 1 Laws U. S. 466. With the full knowledge that there were at its adoption, not only existing controversies between two states singly, but between one state- and two others, we find the words of the constitution applicable to this state of things; “ controversies between two'or more states.” It is not known-that there were any such controversies then existing, other than those which relate to boundary; and it would be a most forced construction to hold that these were excluded from judicial cognizance, and that it was tt> be confined to controversies to arise prospectively on other subjects. This becomes the more apparent, when we consider the context and those parts of the constitution which bear directly on the boundaries of states; by which it is evident, that there remained no power,in the contending states to settle a controverted boundary between themselves, as states competent to act by their-.own authority op the subject matter, or in any department of the government,if it was not in this.

By the first clame of the tenth section of the first article of the constitution, there was a positive prohibition against any state entering into “ any treaty, alliance,or confederation:” no power under the government could make sucir an act'valid, or dispense-with the constitutional prohibition. In the- next clause is a prohibition- against any-state- entering “into apy agreement or compact with'another state, or with a'foreign power, without the consent of congress; or engaging in war, unless actually invaded, or in imminent danger, admitting of no delay.” By this surrender'd' the power, which before the adoption of the constitution was vested in every State, pf settling these contested boundaries, as in the. plenitude of their sovereignty they might; they, could settle them neither by war, or ip peace, by treaty, .compact' or. agreement, without the permission; of the new legislative, power which the; státés brought into -eXistence -by,then-respective and several gránts in conventions of the people. If congress consented, then the states were in this respect restored to their original inherent sovereignty; SUch consent being the sole limitation -imposed by the .constitution, when .given, left the states-as they .were before, as -held by tbis Court in Poole v. Fleeger; 11 Peters, 209; whereby their compacts became of- binding force, and finally settled the boundary between them; operating' with the same” effect as'a treaty between sovereign powers. -That is, that .the boundary •so,estáblished and fixed by compact between nations, become conclusive upon all the subjects and-eitizens thereof, andbind their rights; and are to be-treated to' all intents and purposes, as the true real boundaries. 11 Peters, 209; S. E. 1 Ves. sen. 448, 9; 12 Wheat. 534. -The eon-struction of :such compact is-a judicial.question, and was so considered, by this Court in' the-Lessee of Sims v. Irvine, 3 Dall. 425-54; and in Marlatt v. Silk & M'Donald, 11 Peters, 2, 18; Barton v. Williams, 3 Wheat. 529 33, &c.

-In .looking to the practical construction of this clause of the' constitution, relating to agreements and compacts by the states, in: submitting those which relate to boundaries to congress for its consent, its giving its consent, and the action of this Court upon them; it is most manifest, that by universal consent and action,the word^s “ agreement” and “ compact,” are construed -to include those which relate to .-boundary; yet that word boundary is not used. No one has ever imagined that compacts of boundary were excluded, because not expressly named; on the contrary, they are held by the states, congress, and this Court, to be included by necessary-amplication; the evident consequence resulting from their known object, subject matter, the context, and historical reference to the state of the times and country. No such exception has been thought of, as it would render'the. clause a.perfect nullity-for all practical purposes; esneciallythe Une- evidently intended by the. constitution, in giving to congress the power of dissenting .to such compacts. ■ Not to prevent the' states from settling - their own boundaries, so far as merely affected their relations to each other, but to guard against the derangement of their federal relations with the other states of the Union, and the federal government; which might be injuriously affeóted, if the contractingstates might act upon their-boundaries at their pleasure.

Every reason which has led. to this construction, applies with equal force to the .clause granting to the judicial power jurisdiction over controversies between states, as to that clause which relates ,to com-pacts and agreements: we cannot make an exception of controversies relating' fo boundaries, without applying the same rule to compacts for settling them; nor refuse to include them within .one' general tebm, .When they have uniformly béen included in another. Controversies about boundary, are more serious in'.their consequences upon the' contending states, and their relations' to, the Unión and governments, than compacts and'agreements; If the constitution-has given .to no department the power to settle them, they must, remain interminable;'and as the large and powerful states can take possession to the extent of’ their claim, and the small and weak ones must acquiesce and submit to physical power; the possession of the large, state must consequently be peaceable and uninterrupted;'prescription will be asserted, and whatever may be the right and, justice of the controversy, there- can be no.remedy, though just-rights may he violated. Bound hand and foot, by the, prohibitions of the constitútion, a complaining state can neither treat, agree, or fight with its' adversary, without the consent of congress: -a. resort to. the-judicial power is the-only means left for legally adjusting, or persuading a state which-has- possession of .disputed .territory, to enter into an agreement or. compact*,relating to a controverted boundary, Féw, if any, jvill be made, -when it is left to the pleasure of the state in poS-session; but. when it is known .that some‘tribunal can decide on the rights it is’ mpst probable that controversies will be settled by- compact.

There cari be but two tribunals under the constitution who .can act on the boundaries of states, the legislative or the judicial power; the former, is limited in express terms to assent or dissent, where a compact or agreement is referred to them by. the states; and as the.latter can.bé exercised only by this^Court, when -a .state is -,a party, the •ppwer is here, or it cannot exist. For these reasons we cannot be persuaded that it coüíd have been intended-’to-provide only for the-Settlement of boundaries, when states could;agree; ' and to altogether Withhold the power to-decide controversies on which the states could not agree, and presented the-most imperious call for speedy settlement. .

-There is another clause1 in. the constitution, which'bears ontthis question. -The judicial power extends to “controversies between citizens of different states;” “ between citizens of the samé state-claiming lands under grants of different states.” We cannot but know, judicially, that’the latter classes of-cases must- necessarily arise1 on boundary; and that few if any ever arise from.any other source. If there is a compact between the states, it settles the Jine: of 'original right; it is the law of thé case binding-op-the states and'its Citizens, as fully as if it had beep1 never contested; if there is no compact, then the contróversy must be settled, by adjudging where the’-line of ’boundary.oughttobe, by the laws-and rules appropriate-to. the case. 6 Wheat. 393; 2 Peters, 300. - It is not recollected" thaivany-' such cases have ever arisen, “ btetween citizens of the same state/? as the judiciary acts have made no provision ,for. this exercise of. -this" undoubted constitutional jurisdiction; and it is not/-necessary for tne decision of this eause, to inquire whether a-law is necessary for this purpose; But for- th'e other class' of eases “ cóntrov';,rsies between citizens of different' states,” the’eleventh s.ectiojn of-rthe1 judiciary act makes provisión; and- the. circuit codrts in their original, áhd this? Court in. its appejlate jurisdiction; have décided -on the boundaries' of the states, under whom' the parties respectively Claimj- whether there has been a'comp&ct ornot; ' Th’e jurisdiction of the drciiit court in ■such cases 'was distinctly and expressly , asterted ,by this Court as earlyi-ás 17.99^0 Fowler v. Miller, 3 Dall. 411-12 ; S. P. 5 Peters, 290. In Handly’s Lessee v. Anthony, the circuit court of Kentucky decided oii thfe-boundary between that state aiid Indiana, in an ejectment between-these parties; and thé'ir judgment Was affirmed by this Court. 5 Wheat, 375; 3 Wheats 212—18; S. P. Harcourt v. Gaillard, 12 Wheat. 523. When the boundaries of states can be.thus deí cidfed collaterally in suits between individuals, we cannot,.by anyjust rule of 'interpretation,-declare that this Court cannot adjqdiyate on the question of boundary, when it is presented -directly, ni a controversy between two or more states, and is the only, point ih the cause. Tbere is yet another source of reference, from which to 'ascertain the trué construction of the constitution.

By'the ninth article of confederation adopted by the legislatures of the several states, it is. provided, “.That the United States, in-congress assembled, shall also be the last resort on appeal, in all disputes and differences now subsisting, orwhieh may hereafter arise between two or- more states, concerning-boundary, jurisdiction,-or any other cause whatever.’* . It directed the appointment of a tribunal, whose judgment should be filial and conclusive. It also gave to congress power to appoint a judicial tribunal to decide ón a petition of either of the.párties, claiming land under grants of two or more states, who¡ had adjusted their boundaries, but had previously made the grants on which the. controversy arose. One of the most crying, evils .of the confederation was, that it created no judicial power without the aetion of congress; arid confined the power pf that body to the appointment of courts for the trial of piracies and. felonies committed on the high seas; for determining finally on. appeal, in all cases of captures; and for the adjustment of the controversies before referred ;io. Yet defective as was the confederation- in other respects,' there was'1 full power to finally settle controverted boundaries in tbe- two cases, by an-appeal by.a,-state, or petition of one of its citizens. This power was given from the’universal conviction'of its necessity, in order to preserve harmony among the confederated states; even during the pressure of the revolution. If in this state of. things, it was. deemed, indispensable to. create-a special judicial-power,-for the sole and. express purpose of finally settling all disputes concerning boundary, arise how.they might; when this-power was plenary, its judgment conclusive on the-right; while the other powers delegated to. cprigress, were mere shadowy forms, one ■ conclusion at. least is inevitable. That the constitution' which emanated directly from the people, in. conventions in, the several states, could not have' been intended to give to 4he.judicial power a less extended jurisdiction, or less efficient means •'f fipal action, than the articles of confederation adopted by the mere legislative power of the states,.had -given tp a special. tribunal appointed by congress, whose members were the-mere creatures and representatives of state legislatures,'appointed by them,.without any action by the people of the state.. This. Court exists by a direct grant from the people, of their judicial power; it is exercised by their authority, as their- agent selected by themselves, for the purposes specified; the'people'of the states as they respeclively became parties to the constitution, gave to the judicial power of-the United State’s,-jurisdiction over themselves, controversies between states, between citizens of the same or different states, claim,ing lands under their conflicting grants, within disputed territory. No-fact was more .prominent in our history, none could have been more strongty impressed on the members of the general and state conventions, than1 thát contests for the vacant lands of the.crown, long threatened the dissolution of . the confederation, which existed practically and by. common consent, from 1774 to 1781; when, after five years of discussion,.it was .ratified1 by the legislatures of all the-states. This Court has attested the fact, 6 Cranch, 142; 5 Wheat 376. Similar dangér was imminent, from controversies about boundaries, between the states, tijl provision wás made for their decision,,‘with a proviso, “That no state should.be deprived of territory for the benefit of the United States.” 1 Laws U. S. 17. These-two provisions taken in connection, put an end to any fears of convulsion, by the contests of1 states about boundary and .jurisdiction, when any state could, by appeal, bring the powers of congress and a judicial tribunal into.activity;, and the United States could1 not take any vacant land within the boundary of a state. Hence resulted the principles-laid down .by this Court in Harco.urt and Gaillard? 12 Wheat. 526, thrt the boundaries .of thé United States were the external boundaries of the several states; and that the United States did not acquire any territory by the treaty of peace, in 1783.

Yet though this express provision was made to .settle controverted boundaries by judicial power, congress had no supervision over compacts and agreements between states.as .to boundary, save on grants ■made before the compact; the states did, and could so settle them without the consent of congress, to whom, as no express power on or over the subject of such compacts was ■ delegated, their dissent could not invalidate them.. 'Such was the law of the confederacydúr-ing a common war, when external dariger could not.suppress the danger of dissolution from internal dissentiops;. when owing to the imbecility of congress, the powers of ..the states being reserved for legislative and judicial purposes; and the utter.want of power in the United States to act directly on the people of the states, on the rights of the states (except those in controversy-between them) or the subject matters, on which they had delegated but mere shadowy jurisdiction, a radical change of government became necessary. The constitution, which superseded the articles of'confederation; erected a new government, organized it into distinct departments, assigning, to'each' its appropriate powers, and to congress the, power to pass ■laws for carrying into execution the powers granted to each; so that the laws of the Union could be enforced by its. own authority, upon all-persons and subject matters, over which jurisdiction was granted to any department, or officer of the government pf the United States., It was. to operate 'in a time of peace with foreign powers, when foreign pressure was not in itself some bond of union between the states, ahd danger from domestic sources might be.imminent; to extend the legislative, executive ,and judicial power, alike over persons and states, on the ehumerated subjects by their own grants. The states submitted to its exercise, waived their sovereignty, and agreed to borne to this Court to settle, their controversies with each other, excepting none in terms. So they 'had agreed by the confederation; not only hot-excepting, but in express terms including, all disputes- and differences whatever.

In the front of the constitution is a declaration by the sovereign power from Which it emanated; that it was ordained, “ in order to form a more perfect union, establish justice* insure domes tie, tranquilhty,’’\&c, Whether it. was best calculated to effect these objects jby making the judicial power utterly incompetent to exercise. a jurisdiction'expressly delegated to- the old congress and its constituted, court, over .states and their boundaries, .in the plenitude of absolute power* yet granted only by the legislative power of the several states,; or whether the powers granted'to; this Court by the people of all the states, ought;-by taere construction and implication,, to be held inefficient for the objects, of its creation, and not capable of “ establishing justice’’-between two or more, states; are the direct questions before, us for consideration. Without going further into any general -consideration on the subject, there is one Which .cannot be-overlooked;,and, is imperious in its results.

Under the confederation, the states Were free to settle their controversies of any kind whatever by compact or .agreement; under the constitution they can enter into none without the consent of congress, in the exercise of.its political power;.thus making an amicable .adjustment a political matter for the concurring determination of the' states-and congress, and ,its, construction a matter of judicial cognizance, by any. court to which -the appropriate resort may be- had, by the judiciaryact.

' This has uniformly been . done in - the courts of the states, and Union; ho one has ever deemed such,an exercise of power to be extra-judicial,; or* a case which palled for it to be coram non jüdice. When, therefore; the court judicially inspects the articles-of -confederation, tlie preamble to the constitution, together, with the surrender, bythe -states, of .all powér to settle their contested boundaries, with the express grant of original jurisdiction to this Court; we feel not only, authorized, but bound to declare that it is capable of applying its judicial power; to this, extent at least: 1A To act as-the' tribunal substituted by the constitution in place of. that which existed' •at the time of its- adoption, on the same controversies,-and to a like effect. . 2; As tile substitute Of the contending states, by "their own grant; made in their" most sovereign capacity; conferring that preexisting power, in relation' to their own boundaries, Which they had ■not surrendered to the legislative department; thus -.separating the exercise of political from judicial power, and defining each.

There is bútone power in this Union paramount-fo that -by which, in our opinion, this jurisdiction has beéngranted, and must be brought into action'if it can. That power has been "exerted in. the 11th amendment: but while it took from this Court all jurisdiction, past, present/and future, 3 Dall. 382, of all controversies between states and individuals; it left its exercise over those between states as free as it had been before; This, too; with the full view of the decisions of this Court, and-the act of 1789, ,giving it exclusive jurisdiction of .all controversies of a civil nature, where a state is a party; and there cám- be no subject on which the judicial power can act with a more direct and certain tendency, to effectuate the great, objects of its institution, than the ope before us, If we cannot “establish justice” -between these litigant states, as the tribunal to which they have both submitted, the adjudication of their respective controversies, it will be a source of deep regret to all Who are desirous that each department of the government' of - the Union should have' the capacity of. acting within its appropriate orbit, as the instrument .appointed,by the constitution, so to execute its agency as'to make this bond of union between the states more perfect, and thereby enforce the domestic tranquillity pf each and all..

Deing thus fully convinced that we have an undoubted jurisdiction of this cause, as far as we have proceeded in examining-whether, by a true and just construction of the. constitution and laws, it is included ór excluded, in the grant of judicial power, for any purpose; ,we now proceed to' inquire how,that jurisdiction shall be exerted; whether to retain or. dismiss the complainant’s bill.

. This depends on our jurisdiction over any. pf the matters on. which the plaintiff asks our interposition. • If there is any one subject on which we can act, the bill must be retained: so that the true inquiry is, nob as to the extent, but the' existence of any jurisdiction. 1 Ves. sen. 203, 205; 2 Ves. sen. 356.

The hill pfays; 1. For the ascertaining and establishing the boundary line between the states, by the order of this Court.

2. That the right of jurisdiction and sovereignty of the plaintiff to thee disputed territory may be restored to her, and she be quieted in the enjoymept thereof, and her title thereto; and for further relief. IF w® can decree any relief specially called for, or any other relief, consistently with; the specific prayer, .we'must proceed in the cause. 10 Pet. 228; 8 Pet. 536.

The first prayer is, to ascertain and establish a boundary. -Haying expressed - our opinion that the subject of boundary is' within our jurisdiction, we must exercise it to some extent, and on some matter Connected with; or dependent, upon it; and as the bill is on the> equity side of the Court, it must he done according to the principles and Usages of a court, of equity.

In- the hill; are set forth various. cnaxters from the crown, from 1621, to -1691, and sundry proceedings by the grantees and the crown, in relation, thereto; also' agreements-between, the parties as .colonies and states, for adjusting .their boundaries, and the proceedings- of their respective legislatures and commissioners, in relation thbreto, from-1709, to 1818. The plaintiff relies-on the .charters of the two-coíoniesj as the rule, by which to settle the boundary; on the continued assertion of her rights, as well,by-the charter, as her previous purchase from the Indians: denying'altogether the Validity of the-agreements and subsequent proceedings; averring that they were made tinder misrepresentation and mistake, as'-to material facts. On the other hand, the defendant pleads the agreements as a bar; that they,.are binding, and. have been ratified by the plaintiff:- so that the plaintiff rests his case oh a question of original boundary, unaffected by-any agreement; ,the .defendant rests on. the agreements, without regard to the original charter boundaries. One-asking us to annul, the. other.to enforce the; agreements; one averring continual claim, the other setting up the qyiet, Unmolested possession for. more than a century, in strict conformity to, and by the line in the agreements’. Our first inquiry-then must -be,, as to our .power to settle the boundary: in other words, to decide what portion of the territory in dispute belongs .to the1 one' state or the other,, according -to' the’ line which is their .common boundary. There is nqt in fact, or by any law can be, any territory which does' not belong to One or the other state;' so that the Only question is, to which the territory bp-' longs. This must depend on the right by which each state claims the territory in question.1 Both claim under grants of'contiguous territory,'by the-king, in whom was the absolute propriety and full dominion in and ov,er it; 9 Peters, 745, to 748; 8 Wheat. 595; th:e lin'e'.drawn,, or pointed out,in\.his grant, is therefore that which is designated ill the two charters as the common boundary of both. 5 Wheat. 375.,

The locality of that line is matter of fact, and,.when ascertained, separates the territory of one from the'other;'.for neither state can have any right beyond its territorial boundary. It follows, that whe.n a place is. within the boundary, it is a part of the territory of a state; title;jurisdiction, and. sovereignty, -are inseparable incidents, and rémain so till the state makes some cession. The plain lahguáge of this Court in The United States v. Bevans, 3 Wheat. 386, et seq., saves .the necessity 6f any reasoning on this subject. The question is put by the .Court — What then is the extent of jurisdiction which a state possesses?” “We answer, without hesitation, the jurisdiction of á state is coextensive with its territory, coextensive with its legislative power. The place described, is unquestionably within the original territory of Massachusetts. It is, then, within the jurisdiction .of Massachusetts, unless that jurisdiction has been, ceded to (“ by”) the' United States, lb. 387.” “ A-cession of territory is. es~ sentially a - cession of jurisdiction', lb. 388. Still the general jurisdiction over the place, subject to this grant of power, (to the United .States,) adheres to the territory as a portion of sovereignty not yet! given aWay. ”, lb. 389.

This principle is embodied in the .sixteenth clause of- the eighth section, f\rst article of the constitution, relative to this district; 'forts, arsenals, 'dock,.yards, magazines; and uniformly applied to all acquisitions of territory by the United States, in virtue of cessions by particular states, or' foreign nations. 5 Wheat. 324; 5 Wheat 375; 3 Wheat. 388, 89; 2 Peters, 300, &c. Title, jurisdiction, sovereignty, are -therefore' dependent questions, necessarily settled when boundary is ascertained, which being the'line of territory, is-the Une óf power over it: • so that great as questions of jurisdiction art3 sovereignty may. <be, they depend in- this case oh two, simple facts;. I. Where is the southernmost point of Charles river... 2. Where is. the point, three. English miles in a, sputh line, drawn from it; When these points áre ascertained, which by the terms are those called for in both, charters;.then' an- east and west line from the second point,.is necessarily the boundary between the' two states; if- the charters govern it;

■ If this Court can,' in a case of. Original jurisdiction, where both parties appear, and the plaintiff rests'his case on these facts, proceed-to ascertain them; there must he an end of this cause when they are ascertained, if the issue between- then) is Open original right by the charter boundaries. We think it does not require reason, or precedent, to show that we may ascertain facts with or without a jury, at our discretion, as the circuit courts, and all others do, in the-ordinary course of equity: our power to examine the evidence in the cause, and thereby ascertain a fact, cannot depend' on itg effects, however important in their consequences. Whether the soveréighty of the United States, of a state', or the property of an individual, depends on the locality of a tree, a stpne, or water-equrse; whether the right depends oñ a charter, treaty, cession, compact, or á Commoii deed; the-.right is to territory great or small, in extent, and power over it, either ofgovernment or private property; the fitle of a state is sovereignty, full and absolute* dominion; 2" Peters, 3Q0, 301;. the title of aft individual such as the state makes it by it's grant and-law

Ño court acts differently-in* deciding on boundary between- states, than on lines between separate tracts of land: if there is uncertainty Where the line is; if.there,is a confusion of boundaries'by the natüre of interlocking grants; the obliteration of marks, the intermixing of, possession under. different proprietors; the effects* of accident, fraud, -or time, of other kindred causes, it is á ease appropriate to equity. An .issue at law- is directed, a .commission, of boundary awarded; or, if ' the; court'are satisfied without, either, they decree* what and where the boundary of a farm, a manor, province, or'a state, is and shall be..

When, no -other matter affects a boundary, a decree settles it as having",bgen by-original right at the place decreed; in the same manner as has b’^en stated where it is settled by treaty or compact; all dependent rights are settled when-boundary*is; 1 Ves. sen., 448 to 450.' If, therefore, there was an issue in this cage, on the locality of the point three miles south of the southernmost point of Charles river, we should be. competent to decide it; and decree where, .the boundary between the states was .in 1629/and 1.663, at the dates of- their'respectiye charter's. ■

On these principles, it becomes "unnecessary to decide on the re* maimng prayers of the billif we grant the first, and settle Boundary,the. othérs. follow; and if'the plaintiff obtains relief as to that, he: wants no other; 'The'established forms, of such’ decrees extend; to every thing;in 'manner or way necessary to' the .final establishment of the boundary, as the1 true line of right and power. between the parties.

This, however, is not a case where there is an issue on original boundary; the defendant does hot rest'on that'fact, but puts .in a' plea setting up an agreement or compact of boundary Between the p'arties while coloniete,.and the actual establishmént of a line agreed on,' run, marked, and .ratified by both colonies, long .possession; and a right' by prescription- to all. the territory north’of such, line, This presents a case on an agreement. on one side, .alleged to- be conclusive upon every matter complainéd of in the bill; on the other, .to be. invalid for the reasons .alleged.,- If this matter of . the plea is sufficient in law,..arid true in fact,.it ends the cáuse; if not so-i.n .both respects, then the parties are Thrown back on- their .original rights, according to their. respective claims to the territory in-question; by charters/ or purchase from the . Indians. If/ then, wé can act at all On the case, we must, on this state of the pleadings, decide on the legal sufficiency of-the plea, if true, as on a demurrer to it; next, off the 'truth of its averments; and thén decide whether it bars ..the complaint of. the plaintiff, and all.relief: if it does not, then, we must ascertain the. fact- on which the whole controversy turns. In the first aspect of the case, it presents a question ofThe most common and .undoubted jurisdiction of a court of equity; ah agreement which' the defendant sets up as conclusive to bar all relief, and the plaintiff; asks to be declared, void, on- grounds of the most, clear and appropriate cognizance in equity; and not cognizable in a court of law.: A false re» presentation made- by offe- party, confided in by the other; as- to .a. fact on which the whole causé depends; the execution, of the agreement, and all proceedings Under it, founded on a mistaken , bélief óf the truth of the fact represented. fWé must, therefore; do-something in the cause; unless the defendants have, in their objections, made out this to be an exception to- the usual- course of equity, in. its action on questions of boundary.

It is said that this is a political, not civil controversy between the parties; and so not within the .constitution, or thirteenth section of the judiciary act.. '

. As it is viewed by the Court, it is. on the bill alone, had it-been demurred to, a Controversy, as to the locality of a- point three ipiles south of the southernmost point of Charles river 5 .which is the only question which can. arise under the charter. Taking the case oh the bill and plea, the question is, Whether the-stake set., up onWrenthám Plain, by Woodword .and Saffrey, in .1642, is the true point from'which-to run an east and west line, as the compact boundary between .the states. In the first aspect of the case,.it depends on* a fact; in the second, dn the law of equity, whether the agreement is void or valid: neither of which present a political controversy, but one„ of an ordinary judicial nature, of frequent occurrence in suits '■between individuals. This Controversy, then, cannot be a political one, unless it becomes so by:the éffect.of the settlement of the boundary; by a decree on the fact, or the.agreement; or because the contest is between states as to political rights and power, unconnected .with the original, or compact boundary.

We will not impute to the men who . conducted the colonies .at hóme, and in congress, in the three declarations of their rights previous to the consummation of the revolution, from 1774, to 1776,. arid its .final act, by a declaration of the rights of the states, then announced to the worldj an ignorance of the effects of territorial boundary between thein, in both capacities. Every déclaration of the old congress wouid be falsified, if the line of territory is held not to have been, from: the first, the line of property and power. The cdngress, which, in 1777, framed and recommended the.articles of confederation for adoption, by the legislative power of the. several strifes; were acting in a spirit of'fatuity, if they thought that a final and conclusive judgment op state boundaries, .was not equally decisive as to the-exercise of political power by a state; making it rightful within', but void beyond the adjudged line.

The meinbers of the general and state conventions, were alike fatriitous, if they did. not comprehend, and know the effect of the states subiriitting controversies between themselves, to judicial power; so were the members of the.first congress of the constitution, if théy could see, and not know, read, and not understand its plain provisions, when:many of them assisted in its frame.

The founders of our government could .not but know, what has ever been, and is familiar, to every statesman and jurist, that all controversies between nations, are, in this sense, political, and not judicial, as none but the sovereign1 can settle them. In ’ the declaration of independence, the states, assumed their equal station' among the powers of the earth, and asserted that they could .of right do, what other independent states could do; “ declare war, make peace, contract alliances;’'’ of consequence, to settle their controversies with, .a foreign power, or1 among themselves, which no state, and ,no 'power could do-for them. They did contract an - alliance with. France, in 1778; and with each other, in 1781: the object of both was to defend and secure their asserted fights as states; but they surrendered tó congress, and its' appointed Court, the right and power; of settling their, mutual controversies;, thus /making7 them judicial questions, whether they arose on “ boundary, jurisdiction, or any other cause whatever.” There is neither the .authority, of, laW. or,reason for the position, that boundary between nations or states, is,-in its nature, any more a political question, than any other subject' c>n which .they may 'contend., None can be settled Without War or treaty, which is by political poivet; but under the old and.new confederacy,they cóuld and can be settled by a court constituted by themselves, as their own 'substitutes, authorized to do that for states, which'statés alone could do befofe. W are thus1 pointed to the true, bpundary line between political and-judicial power, and questions, -A sovereign decides by his own will, which is the supreme law within his o,wn boundary; 6 Peters, 714; 9 Peters, 748; a court, or judge, decides according to, the law prescribed by the sovereign power, and that'law is the-rule for- judgment. The; submission by the sovereigns, or states, to, a court of law or equity, of a controversy between them,' without prescribing any rule of decision, gives7power to decide according to the •appropriate law-of the case; 11 Ves. 294; which depends on the subject.matter, the sotifce end nature! of the Claims of the parties,-and the law which governs them. From the time of such submission, the question ceases to be a'politieal one, to be decided by the sic volo, sic jubeo, of political power; it comes to the cpurt to be decided by its judgment, legal, discretion, and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; ás it is bound to act-by,know;n and settled principles of national or municipal jurisprudence, as the case requires.

It has never been contended that prize courts of admiralty juris- ' diction, or questions, before them, are. not.strictly judicial; they' deeide on question® of war and peace, the law ofnationS, treaties, and the municipal.Jaws of the capturing nation, by which alone they, are constituted; a fortiori,(if .such courts were constituted by a solemn treaty between the state únjdér whose authority the capture was máde, and the . state whose citizens or subjects suffer by the, capture. All' háfións submit to the. jurisdiction of-such courts oyer their.subjects, ánd hold-their final, decrees conclusive on rights'.of property. 6 Cr. 284-5.

These considerations lead to the definition .-of political.and judicial power and q'uestioris; the former is thát .which a sovereign'Or state exerts, by his or its Own authority,as reprisal and confiscation; 3 Ves. 429; the latter, is' that which is granted 4o a .court or judicial tribunal» So-of-controvefsies'between states;, they are in their nature- politick!, when, the. sovereign or. state reserves loitselft-he right of deciding oii it; makes-it'the “ subject of -a.treaty, to- be settled as between states’ independent,” ’ or “ the. foundation of .representations from state to state.” , This is'pólitical equity, to be adjudged by the parties themselves, as. Contradistinguished from j udicial equity, ádmití,i®terédi by a court of justice, decreeing the .equüm' et bonum of thé cáse, let who. or what be the parties before them. These are the definitions of Jaw as made in the great'.Marylánd case Of Barclay v. Russell, 3 Ves. 435; as they, have'long been, settled, arid established.. Their correctness 'Will hqtested by.a..reference to the question.of original ’.boundary, as.it ever has been,and'yet i® bythe constitution of .England;, which was ours'before the revolution, while Colonies; 8. Wheat. 588; as'it was here from 1771 to 1781, thence. to 1788,..and since by the constitution as expounded by this Cou^t,

' If the -quéstion concerning the boundaries..of contiguous pieces bf land, manors; lordships; or counties pSdatin,e; arises within 'the realm', it wa® cognizable in the high'coúrt. of 'chancery, in an appropriate casé; a mere question of'title'to. any. defined part, was cognizable, only by. ejectment : or real action in a Court oftawj which were in either case judicial questions.. 1 Ves. sen. 446-7. If between counts "Palatine, boundary involved hot only the right of. sod, but; the highest , franchise known to théláW of England, jura-regdia,. to the same extent as the king in right of the crown-and'royal jurisdiction;- Palatine jurisdiction was a qualified sovereignty, till, abridged by .the 24 H. 8. ch. 24, Seld. Tit. Hon. 380, 382, 638, 838; 1 Black. Commentaries, 108-17; 7 Co. 19; Cro. El. 240; 4 D. C. D. 450, &c. The count appointed the judges- of eourts'-of law apd equity ;the king’* , writs-did not run. into his :coupty; .writsweré in hisn^me, and in* dictmepts against "his peaép,Cb. Inst. 204-18. -Yet his jurisdiction; his, royalties,, and jura regalia1, &c., existed oy disappeared, according as a cháncellor should decréeas to boundary. ' Penn y. Baltimore; 1 Ves. sen. 448-9, &c. The king' had no jurisdiction- over* boundáryWithih the realm,, without he'had; it in all his dominions, as the absolute, owner, of the' territory, from whom ,all .title and power must, flow; 1 Bl. Com; 241; Co. Litt. 1; Hob. 322; 7 D. C. D. 76; Cowp. 205—11; 7 Co. 17, b., as.the supreme legislator; .saye a limited jjowér in parliament He could make .and unmake boundaries in any -part of his ¡dominions; -except in .proprietary provinces. He exercised, this power :by treaty, as in 1763, by limiting the polonies to the Mississippi; whose-charters extended to .the South sea.: by proclamation; which was a supreme law,’as in’. Florida and Georgia,. 12 Wheat. 524;, 1 Laws U. S. 443-51; by. order in council; as between Massachusetts and New-Hampshire, cited-in the argument.', But in all cases it was by-his, political power, which was competent to dismember royal; though if was not exercised on the 'chartered or proprietary, provinces. M‘Intosh v. Johnson, 8 Wheat. 580. Ih council, the king had no original- judicial' power, 1 Ves. sen. 447. He decided on appeals from the colonial- courts, settled boundaries, in virtue of his prerogative, where there was no agreement; but if there is a disputed agreement, the king cannot decre'e on it, and therefore, the council rerhit .it to be determined in another place', on the foot of .the contract, 1 Ves. sen. 447. In virtue of . his prerogative, where* there was no agreement, 1 Ves. sen. 205, the king acts, not as a judge, but ad the sovereign acting by tlie advice of his,counsel, the ihembers 'whereof do npt and cannot sit as judges'. . By the statute 20 E. 3, ch. 1, it is declared,' that .££ the king hath delegated his whole 'judicial power fp the judges, all matters of judicature according to the laws,”' 1 Ruff. 246; 4 Co. Inst. 70, 74: he had, therefore, none to exercise: and judges, though members of council, did not .sit in judicature, but merely ás his advisers.

' The courts had no jurisdiction over the colonies, persons or property therein, except in two cases; colonies and provinces being.corporations Under- letters patent, 3 Ves. 435, were 'amenable to the king in thp king’s bench, by quo warranto, which is a prerogative writ; and- a scire facias, in chancery, to.repeal the letters patent, which is a part of the statutory jurisdiction of that- court in such cases, by the court in chancery, also in virtue of the royal prerogative, by which the charter was made. But, chancery could not-act onboum darles in the- royal or chartered colonies: it could act on lords proprietors of provinces,, when they Were'in the realm, where they ivere-Subjects; though in their provinces they were sovereign, dependen! only on-the crown and the general supremacy of parliament. Acts of parliament did not bind them, unless extended to them expressly, or by, necessary consequencé, 2 Ves. sen. 351. 1 They had all. the powers of'counts palatine, the absolute propriety of soil, and the powers, of legislation; the only restraint upon them was-by the powers reserved to-the king by his letters patent, and allegiance to the crown-in-matters of prerogative not granted.' -The power of parliament Was, op the American principle of. the revolution, confined -to the regulation of “external commerce;” though by the English principle, -it extended to all cases whatever* Yet sovereign as they were as to all-things,'except those, relating to the powers of thé king and parliament, chancery coqld and di.d-act'oh agreements between, them as to their boundaries, in the case-of. Penn v. Baltimore;’ though it could not have done so had they stood at arms’ length-; in.which case the kmig in council -could alone, have decided the original boundary on an appeal, 1 Ves. sen. 446. Chancery also could-and-did decide on .the title to the Isle of Man, which was a feudal kingdom:- óñ a bill for discovery of title, relief as to rectories and tithes, which was a mere franchise,-A plea to jurisdiction, was overruled. - Derby v. Athol; 1 Ves. sen. 202;. S. P. Bishop of Sodor & Man v. E. Derby, 2 Ves. sen. 337, 356.

In each of'these cases, objections tó-the jurisdiction were made similar to those mbde in .this, but were overruled;,and neither the-authority or principles of either have been questioned^ on the contrary, they have been recogniséd and adopted by all .courts which follow the course of the law ,of England;' yet-' each involved the same question as the present. In the first, the decree as to boundary settled by 'consequencé the collateral and dependent,questions of title, jurisdiction, and sovereignty, of- and over the disputed territory; in the two last, on a suit for rectories and tithes, the . title to a feudal kingdom was. but a dependent matter, and .'was settled. by deciding that the bishop had a right to the titfies He claimed. The same ..principle was settled in the; case of the Nabob of the Carnatic v. The East India Company, though jt is commonly referred to in favour of a contrary position.

Qn - the original pleadings; the'case was on a bill for;an account founded on two agreements.between the parties, in..1785. andM787; The defendants plead their rights ánd privileges under their charter,' •with power to' maxe peace and war within its limits; that the plaintiff was a.sovereign prince; that the agreements stated-in the bill were made 'with him in their respective capacities, one as dn absolute, the other as a qualified sovereign;, and that the matters therein com tained related to peace and war, and thesecurity aiid defence of their respective territorial possessions.

The plea was considered* and.overruled- by the chancellor; thus exercising jurisdiction to. that extent. 1 Ves. 371, 387, An answer, was then put in, Containing the same .matter as .the plea; adding, that the agreements between the parties were, treaties of a federal character* both being .sovereigns;' and that the agreement of 1787 was a final-treaty; and, therefore, thé subject ipatters thereof, were, cognizable by the law of nations not by a municipal court. The bill was dismissed on this ground; “ It is a case of mutual treaty between persons'actings in that'instance, as States independent of each other; and the eircumstapee.that the East India Company are mere subjects with relation'.to this .country, has nothing to do with that. -That treaty was entered into with them as a neighbouring independent state, and is'-the samé as [f it was a treaty between-two- sovereigns;- and consequently-is not q. subject of municipal-private, jurisdiction.”’ It thus is manifest, ¿hat if the answer had beep to the merits, there miist have been a -decree:' the dismission l'esulted from the new matter added, as is evident frpm theiopinion of the chancellor on.the" plea; and.of lord commissioner .Eyre on the answer, and his closing remarks, in which he declares; “ that the case was.considered wholly independent of the judgment on. the plea, and was decided on the . answer, which introduced matters showing that it was not mercantile in its nature, but political; and therefore the decision stood wholly clear of the judgment, on the plea.”, 2 Ves. jr. 56, 60.

That, a foreign sovereign may sue in an English court of. law or equity, was settled in cases brought by the king of Spain, Hob. 113.. That á foreign government may sue in chancery, by such agents-as it authorizes to represent them, on whom a cross bill can be served, with such process as will compel them to do justice to the defendant, was decided in the Columbian Government v. Rothschild, 1 Sim. 104. These cases were recognised in The King of Spain v. Machado, by the house of lords; who held that a king had the same right to süe as. any other person, but that when he did sue, in ehancery, it was as any other suitor, who sought or submitted to its jurisdiction; that it could decide on the construction and validity of 'the treaties between’France and the allied sovereigns of. Europe in 1614;, and on the validity of a private and-separate, treaty between France and Spain.

The case involved both questions; both wére. fully considered by the lords,, in affirming the 'decree of the chancellor, overruling the demurrer, 4 Russell, 560; which assigned for cause that the plaintiff had n'ot made put a case for. any'’relief in auourt-of equity, for the reasons, assigned in the argument; that a foreign sovereign could not sue in yirtue of his prerogative rights; that an English court would hot enforce these rights, accruing out of, a treaty with France, which was-inconsistent’ with the existing relations between each of those'countries, (France 'and. Spain;) and the king .of England; 2 Bligh. P. C. new series, 31, 44, 46, 50, 60.

, The court of. king’s bench also will consider the effect of the declaration of independence and treaty. of peace, in an ¿etion on a bond. Folliott v. Ogden, 3 D & E. 730.

From , this view, of- the law of England; the results are clear, that the- settlement of. boundaries''by-the king- in council, is by his prerogative; whiefois political power,acting on a. political' question between-dependent corporation^ or proprietaries, in his dominions without-the,-realin. -' When it is done in hfiancery, it is by its judicial power, in-<£ judicature according to the; law,’-’ and necessarily a judicial question, whether it relates to the' boundary of . provinces; according to an agreement between the owners, as Penn v. Baltimore; the title to a feudal kingdom, in a suit appropriate to equity, wh.erethe feüdal king appears'.and pleads, as in the' case of the Isle of Man; Or oh ah agréement-hetween a foreign sovereign and the East India-Company., in their mere corporate capacity. But'.when the company'assumed the character of a sovereign, assert the ágréement to be' a ^federal treaty,” between them and the plaintiff, as neigh-, b'during Sovereigns, each independent, and the subject matter to be peace and war, political in-its nature, on which no mifnicipal court can act by the law of nations, chancery has no jurisdiction, but to; dismiss .the bill. 'Not' because it is founded - on a treaty; but becausé the defendant .refused to submit it to judicial power: for, had the Company not-made the objection, by their answer,"1 the court must have proceeded .as in The King of Spain v. Machado, and decreed on the validity, as well as the construction of the treaties. The court, in .one case, could not foróe a sovereign' defendant to subunit the merits, of .the cáse to their cognizance; but in the other, when he wás plaintiff, and a subject .was a defendant, Who appeared and plead, the whole subject matter of the pleadings was decided by judicial power, as-.a judicial question; and such has been, and is-the settled course of equity in, England.

. In the-colonies, there -was no judicial tribunal which could 'settle boundaries between them-; .for the-.court of úne could not .adjudicate on thp 'rights of another, unless as a plaintiff. The only power to do it;,remained in the king, where-there was no agreement-; and.in chancery,where there was one, and the parties appeared; so that the question was partly political a,nd partly judicial, and sp remained till the declaration of independence. . -Then the states, being independent; reseryed to themselves the. power of settling their own boundaries; which was necessarily apurely political matter, and so continue*! till 1781., Then, the states delegated the whole'power over controverted’bduodaries to congress,' to appoint and its court to decide, as judge's, and gjve- a final sentence-and.-judgment upon it, as-a judicial question, settled, by- a specially appointed judicial power, as the substitute, of thé king in council, and the court of chancery in a .proper case; before-the .one as a-political, arid the other as a judicial question.

Then came-the constitution, which divided the-power between the political and jttdicial departments, after -incapacitating the states from settling their controversies’ upon . any subject, by treaty, compact, or-, agreement; and coriipletely reversed .the long- established eourse of the Jaws of England. Compacts, and. agreements were referred to the political,, controversies to the judicial power. This presents this part of the cáse in a very -simple .and plain aspect All the states have transferred the decision of their controversies to this Court; each had a right to demand of. it the exercise of the ppwer which they had made judicial .bythe confederation of 1781 and 1788; that we should do that which' neither states or congress could do, settle the controversies between them. We should forget our high duty, to declare to litigant states that we had jurisdiction over judicial, but not the power to hew and determine political controversies: that boundary was of a political nature, and.not a civil one; and dismiss the plaintiff’s bill from our records, without even giving it judicial consideration.. We should equally forget the .dietaté of reason, the known rulé drawn by. fact and .law; tbjstt' from the pature ofia ponfc oversy between kings pr.states, it capnot be judicial; that where,they resérvelo themselves/the final decision, it is of necessity by their inherent political power; not that which has'been delegated' to; the judges,'as, matte.rs . of judicature, according to the law.. These rules and principles have been adopted.by this Court from a' very early period.

• In 1799, it .was laid' down, that though a state could not sue at law for an incorporeal right, as. that of-sovereignty.arid jurisdiction; there was ho reason,wh'y a remedy ocluid not be had.in equity.. That one .state-may file a- bill agairist another, to be. quieted as to lhe boundaries of'disputed territory, and this Court -might'.appbint commissioners, to ascertain and report them; since it is monstrous to talk of •e^istirig rights,, Without correspondent; remedies. 3 Dall. 413. In New Jersey v. Wilson, 'the- only, question in -thé casé .was, ¡whether 'Wilson "held,.certain- lands exempt -from,'taxation. 7 Cr. 164.. In Cohens v. Virginia, the'Court held,, .that the judicial power óf-thé United States, .¡must be- .capable -of .deciding any judicial question growing out'of fhe cohstitution arid .'laws'. That jin one class .of eases, “ the character of the parties is every thing, the' nature of ,'the case nothing;” in the; other,-“the nature; of, the case is ..every thing, .'the. character, of the parties nothing.’-’- That, the elause. relating tp. cases in law Or equity,^arising under the constitution,, laws, and treaties, makes no exception in terms, or regards “thé condition of the party.” If there- be any exception, it is' to be.implied' a'gainst'tlie express Words of.the article. ■ In -the second class, “the jurisdiction;depends entirely on the character'of the parties,” comprehending “ Controversies between two: or mofe states.” “ If these be, the parties, it. is entirely unihrportarit whát may be the -subject of-,controversy.. Be .it what it may, these parties, have; a constitutional right to come*1 into .the.'courts of-the-Union,.” -6 jVh. 378, 384, 392-3.

In the following Cases it will appear, that the course of the Court 'on the subject of boundary, has been ip accordance with all thé foregoing rules; let the question arise as it may, in a case in equity, or abase in- law, of a civil or criminal .nature; arid whether ¡it affects the fights'of individuals,’of statés, or thé United States, and depends on Charters,- laws, treaties, compacts, or cessions which relate to bo'uhdary. In Robinson v. Campbell, the suit involved the construction of the compact Of. boundary 'between Virginia and North Carolina, made, in 1802; and: turned on the question, whether the land in,-controversy was always-witbin the original limits of Tehnéssee; which the Court decided. 3 Wh. 213, 218, 224. ‘The'United States v.Bevan, was an indictment for miirdér; the, questionsicer'ti'fied for the Opinion of fhis Court Were: 1st, Whether the- place at which -the Offence was committed,, was -within'the jurisdiction- of-Massachusetts;, arid 2d, whether'it was committed within the jurisdiction of the circuit court of that district. • ft was -considered and decided; as a question of 'boundary, 3Wh. 339,386, as before stated'. Jn Burton v. Williams, the case involved a'collision, of interest between North Carolina, Tennessee, and' the United States, under thé! cessions by the former to the two latter, in which this Court reviewed all the' aets of congress'and of the two-states on the subject, and the motives of the parties, to ascertain whether the basus foederis had" ever arisen, The case-also involved the construction of the compact between Tennessee ahd- the'United States, made ip 1806. . The Court hse this lan- , güagé' in .relation ’to • it: -“The members of the'American family possess' -ample 'means '.of defence under the constitution, which we, hope-ages to come' will'verify! But happily, for our domestic. harmony, the -power of aggressive operation against each other is taken, '-away.”- .It-is difficult to imagine what other means of defence existed. in süch .a case,'unleás thoseyhich the Court adopted, by construing the acts recited, as thfe Contracts! of independent states; by those fuleswhich regulate contracts relating to territory and boundary! 3 Wh-' 529, 533, 538. ' In De La Croix v. Chamberlain, it Was held, that “ aquestion of disputed boundary'between two sovereign, independent nations,, is indeed/more properly a subject for diplomatic-discussion and of treaty, than-of judicial investigation. If the ■United'States ánd Spain had settled this- dispute by treaty, before the United States extinguished The claim 'of Spain to the Floridas; .the boundary fixed, by Such treaty would have concluded all. parties.’^ 12 Wh. 600. -Accordingly,-in Harcourt v. Gailliard, which arose on a British grant madein 1777, thé Court .decided thé'case, bf reference tb the treaty of;1763; the acts of the king before the . revolution, !the effect of the declaration,of-independence, and' treaty of peace'-in-178’3, in! order to áscertaih. die original‘boundary between Florida and Georgia; on which the whole case turned. 12 Wh. 524. In Henderson v. Poindexter, thé samé'point arose, and the same course was taken; the treaty of. boundary.'with Spain in 1795, Was also considered by- the Court;-as Well, as the cession 'by Georgia to the United States in 1802, ánd thé various acts of congress on the subject. 12 Wh. 530, 534, &c. In Patterson v. Jenckes, the title depended on the boundary, between Georgia and the,Chefokees; and the only question was, as to the. territorial, limits of. the state, according to ,the treaties with them and that state, which the Court defined, and decided accordingly. 2 Peters, 225-7, &c. Bo they had previously done' in various cases, arising on the boundary, between North Carolina and the Cherokees. 1 Wh. 155; 2 Wh. 25; 9 Wh. 673; 11 Wh. 380. In Foster & Elam v. Neilson, two questions arose : 1. On the boundary of the treaty of 1803, ceding Louisiana to fhe United States, as.it was before the cession of the Floridas, by Spain, by the treaty of 1819: 2d. The construction of the eighth article of that treaty. . Roth claimed the territory lying north of a line drawn east from the Iberville,'and extending from the Mississippi to the Perdido. The,title.to the land claimed by the parties; depended on the .right of Spain to'grant lands within the disputed territory; at the date' of the Spanish grant to th.e plaintiff; in 1804. He, claimed under it, aS being then within. the territory of, Spain; and confirmed absolutely by the treaty of cession:^ the defendant rested on his possession. On the first question, the Court held, .that so long-as the United States contested the .boundary, it-was to,be settled by the two governments, and-not by the Court; but df the boundary bad been-settled between France while she held Louisiana* and Spain while she,held Florida, or thé .Tjnited.States ahd Spain had agreed*on the boundary'after 1803; then the Cob# could decide it as a matter bearing directly on the-title of the plaintiff " On thé. .second question,- they held, that as the' government had up to that time construed the eighth article of the. treaty of 1819, to be a mere stipulation for ■thei future confirmation of previous grants by "Spain, to be made by some' legislative act, and not a presént confirmation, absolute tmd final by the mere force of the treaty itself, as .'a supreme law of the land, the Court was bound not to give a different .construction. Gn that construction", the question was, by whom'‘thé'confirmation shoúld bé máde: - the Gpurt held, thé words of the treaty to be the.language of contract, to be executed by an act of the legislatur.e, of course by political power; tó be éxercised by the congress at its discretion; on which thé. Court could not act. But the Court’ distinctly recognised the distinction, hetween án executory'treaty, as a mere contract between nations, to he -carried into execution by the sovereign power of the respective parties, and. an executed treaty, effecting of itself the objeet.to be accomplished, and defined .the line between.them thus: '“-Our- constitution declares a treaty-to be the law 0f;thé land. It is consequently to he regarded in courts .of justice, as .equivalent-to' an act of the legislature, whenever it operates of itself without the1 aid of any legislátive provision. But when the terms of the stipulation import a eontract; when either of the parties stipulate to perform a- particular act; the treaty addresses,itself to the political, not to the judicial, department; and the legislature must execute the contract, before- it.eañ become a rule for the Court.” .Adopting the construction given by'cóngress, and the bqundary being ■disputed,in 1804,.when the grant was made, the.Court considered -both-to be political, questions; and held them not to be cognizable by. judicial power. 2 Peters, 253, 299, 306, 309, 314, 315. All the principles laid-down in this case, w-ere .folly considered-and affirmed in the United States V. Arredondo;, which arose under an act of congress, submitting to this, Court the final decision of controversies between the United States and all pérsons claiming lands in Florida, under grants, &c. by Spain,..and prescribing, the rules for its decision, among which was the “ stipulations of any- treaty,” &c. Thus acting under the authority delegated by congress,.the Court, held that the construction of the eighth article of the .treaty of 1819, by its Submission to judicial-power, became a judicial questioh; and' on the fullest consideration, held, that it operated as a perfect, present, and. absolute. Confirmation of all the,grants which come within its provision. That no act of the political department .remained- to be done; that it was an executed'treaty, the law of the latid, and .a rule' for the- Court:' 6 Peters, 710, 735, 741, 742, 743. In the United States v.,Perclieman, the Court, ,on considering, the' necessary effect of this construction, repudiated that which had been given in Foster & Elam v. Neilson; 7 Peters, 89. In the ' numerous" cases which have arisen since, the treaty has been taken to be an executed one, a rulé of title and-¡property, and. all questions arising under it to be judicial; and córigress has confirmed the action -of the Court whenever, pecessary! In New Jersey v. New York, the Court were unanimous in considering the - disputed boundary between these states, to be within their .original .jurisdiction, and reaffirming the jurisdiction of the circuit courts, in cases between parties claiming lands under grants from different states: the-only difference of opinión Was on one point, suggested'by one of the judges, whether, as New York had not, appeared, the Court could award compulsory process, or proceed éx parte; a point which does not. arise in-ihis cause, and need not to be considered in its present stage; as Massachusetts has appeared ánd plead to the merits of the.'bifl.

If judicial authority, is competent to- settlé what is the line 'between .judicial and political power, and questions, it appears from.this •view of the law, as administered in England :an<f the- courts of the United States* to have. been. done, without any one decision to the1' contrary, from. the. time, of: Edward the Third. . The statute referred to, operated like our constitution to make all-questions judicial, wlpch were submitted to judicial power,■;by the parliament of England,' the people or legislature of these states, or congress; and when this has been done by the constitution, in reference to disputed boundaries, it will be a dead letter if we did not exercise it now, as - this Court’has done in the cases referred to;

The course of the argument made it necessary for the Court to pursue that which has befen taken. Having disposed, of the leading objection to jurisdiction, we will examine the others.

It has been argued by the- defendant’s counsel, that by the declaration of independence, Massachusetts became a sovereign state over all. the territory ip her possession, which. she(claimed by charter or ■agreement; in thé enjoyment of which- she cannot be disturbed:'

To .this objection there are-two obvious answers: .1st. By the thir.d article of confederation, the states.entered into a mutual league for the defence of their sovereignty, their 'mutual and general wfel-. fare;' being thus allies in the War .of, the revolution, a settled principle of the law of nations, as laid down by this Court, prevented one from making any acquisition at the expense of' the Other; .12 Wh. 525-rb. This ailiancé continued, in war and péacé, till 1788; when; ¿d: Massachusetts surrendered-the.right to judge-of her-own boundary, and submitted the power of deciding a controversy, concerning it tó this.Court. 6 Wh. 378, 380, 393.

It is said; that the people inhabiting the disputed territory, ought •to be made parties, as their rights are .affected.. It1 might-with.the* same reason be objected, that a treaty or Compact settling boundary, required the assent of the people to make-it Valid, ánd-that a1 decree under-the. ninth article .of. confederation was-void.; as -the authority ■to make it was derived from the legislative power'only. ‘ The samé Objection was overruled ’ in Penn v. Baltimore; and in Poole v. Fleeger, this Court-decláred, that an ,agreement'..between states*'consented to by copgress, boupd the citizens Of each' state; .Thére.are two principles of the' law of nations, which would protect-theih in their property: 1st. -That grants-by a government, de ,facto,.di' parts of a.dísputed territory in- its/possession,-.arfe valid against, the state-which had the-'right ’• 12 Wh. 600-1.. 2d. That-when-a territory ,is acquired bv treaty, cession; oy even'conquest, the rights oí the.inhábitánts to property,’ are respected. add sacred., 8 Wh. 589; 12 Wh. 535; 6 Peters, 712; 7 Peters, 867; 8 Peters, 445; 9 Peters, 133; 10 Peters, 330, 718, &c.

■ It has1 been contended, thkt this Court cannot .proceed, in this. cause; without somq process' 'and rule, of decisión prescribed approipriate -to the-case; but-no question .‘on process Can- arise on these pleadingsy-n'One is now necessary,'as the defendant ha,s appeared, and plead, which plea in itself .makes the first point in the cause; without, any additional proceeding-; that is, Whether the .plea, shall be allowed if, sufficient in law to bar. the complaint, or. be overruled, as notbfeing a bar in law, though true in fact. In. this state of the case; it is that of. the Nabob v. The East India Company, where the plea - was overruled on that ground;-whereby the defendant was-pub., to áji answer,-,assigning additional grounds, to sustain á motion to dismiss;' or the plea is allowed, the-defendant must .next prove, thetrüthbfthé.matters set. Up. When that-is. done, the Court must decide according- to: 'the law of equity;. 1 Ves. sen. 446, 203; whether/the .agreement plead shall-settle, .or leave the -boundary open to' a settlfe-., ment by, Quyjudgmfent) according.to -the law of .nations, the charters from the-.'crdwn under which' hoth/parties claim,-aS-in -5 Wheat 375; by the law of prescription, as cláimed by the defendant, oh the same-principles which have been rules for the action' of.this Court in the,case 1 Ves. sen. 453; 9 Peters, 760.

It -is. further’ dbjected, that though-., the - Court may render,, they cannot execute-.a decree without an act of congress maid.

In-testing.this-objection-bydhé-cómínon’law, there can be no diffi; ficulty in decreeing, ag in Penn vi -Baltimore; mufatig mutandis; That thé.-agreemeñt. is valid, and - binding between-the,-parties; appointing commissioners .to ascertain and mark the line therein, design ‘ Bated; order-their proceedings to be returned- to the Court-; 3 Dali 412, note;- decree thát the parties should quietly.hold-according, to, the articles; that ..the citizens on ; each side- of ’the line.- should be bound thereby, áo far .ahd.no' farther than the states, could bind them hy a compact, with the- assent of congress, (11 Peters 209;) 1 Ves. sen. 455; 3 Ves. sen., supplement by Belt. 195, 197. Or if any dif-. ficulty should occur, do as declared in 1 Ves. sen.; if the parlies want anything more to be done, they must resort .tcf, another jurisdiction, which is appropriate to the causé of .complaint, as the king’s bunch", or the kingin' council.. Vide United States v. Peters, 5 Cranch, 115, 135, case of Qlmsteád; make' the decree without prejudice to the (United States;) or any persons-whomcthe parties :oould riot. bind. And in case any person,, should obstruct, the execution of the agreement; the' party to be at liberty, from tipie -to time, to apply to the Court. 1 Ves. jr. 454; 3. Ves. sen. 195, 196.: Or, as the only question is one of jurisdiction, which the Court’ will-not divide, the'y will retain the hill,, and direct the .parties to .a forrim .proper to decide collateral questions.. 1 Ves. sen. 204, 205; 2 Ves. sen. 356, 357; 1 Ves. sen. 454; 5 Cranch, 115, 136. On the.other, hand, should the agreement not be .held binding,-the Court will decree the boundary to be ascertained agreeably to the charters, according-to tbe alteredcircunistances of. the case ; by which-the boundary being established; the rights, of the parties, will be. adjudicated, and the párty iti whom it is adjudged may enforce it by the prócess appropriate to the case; civilly-;or eri-:. minally, according, to. the laws of. the state, in-which the aet which violates the right is committed.- In ordinary cases, of boundary, the fundi,ons of a court of equity consist in settling it by-a final deCree, defining arid confirming it when run. Exceptions,as they arise, must be acted .on. according to the circumstances. •

In England, -right will be administered to a subject against the :king, as a matter of. grace; but not.upon compulsion, not by. writ, but petition to the chancellor, 1 Bl. Com. 243; fqr no writ or pfocess can issué against the. king,.for the plain reason givenin 4 Co. 55, a.; 7 Com. Dig., by Day; 83; Prerog. D. 78; 3 Bl. Com. 255; .“-that! the king cannot command himself.” No exeeu tion .goes out on a judgment or decrée against him, on p- monstrans de droit or petition,Of fight, or traverse of an inquisition which had been taken in his favour; for this reason, that as the law-gives,him á prerogative for. the. benefit of his subjects,.! BL Com. 255, he is presumed never to do a wrong, or refuse a right to a subject;, he is presumed to have done the thing decreed, by .decreeing in his courts that it shall be done; such decree' is executed by the lgw as soon as it is rendered; and though process is made Out to maké the record complete, it is. never taken from the office. Co. Ent. 196; 9 Co. 98, a.; 7 D. C. D. 83, The party in whose favour á decree is made, for removing the lands of the king from the possession of a subject, Or declaring a seizuré unlawful and awarding a writ, de libértate, is, eo instanti, deemed to be in actual possession .thereof; so . that a. feoffment; -with livery qf seisin, made ' before it is actually taken, is as valid as if made afterwards. Cro. El. 523; S. P. 463.

. Thie same principle^ was, adopted by the eminent jurists of the revolution, in, the ninth article of.' the confederation, declaring that the sentence of the Court in the .cases provided for, should be final and conclusive,,and with .the, other proceedings ip-the case, be transmitted to congress, arid lodged among their acts, for-the.security of the parties concerned, nothing further being deemed necrissary. The. adoption of this* principle, was indeed , a necessary-effect of the revolution, which devolved on each- state the prerogative df the king as . he had held it in the colonies; 4 Wheat. 651; 8 Wheat. 584, 588; ánd now holds it within- the realm of Englarid; .subject to the, presumptions attached to it by the’ common . Jaw, which gave, and by ' which it must be exercised. This Court cannot presuriie,.that any state which holds prerogative rights for the good qf its citizens,’and by the. constitution has. agreed that tnose Of. any Other state shall enjoy rights, privileges, and immunities'.in .each, as its .own do, vyould. either do wrong, or dqny right to a sister state or .its' citizens, Or. refuse to-submit to those decrees, of'this Court, rendered' pursuant to, ,its own delegated .authority; when' in' a monarchy, its fundamental law declares that such decree-'-executes itself. When? too, the’ nighest courts of a kingdom-have most soleirinly .declared that when the king is.a trustee, a court of chancery will enforce the, execution of a trust by a royal trustée; 1 Yes. Seri..4.53; and that' when a- foreign king is a plaintiff, in a court of equity, it can dd-complete justice; impose any terms it thinks proper; has him in its power, and completely under its control and jurisdiction;' 3 Bligh; P. C. 57; we-ought not to doubt as to-'the course of á state,of this Unión; as-a contrary one would endanger its peace, if not its existence.- In the case of -Qlmstead, this Court expressed its opinion, that if state' legislatures máy annul th'e judgments of .the courts of'the United States,' and the rights therfeb-y accquired,,the constitution becomes a solemn mockery, and the nation ’is.deprived of the meads' of enforcing its' laws,- by its- own tribunal. So, -fatal a result must be' deprecated by all; arid the people of every state must feel a deep interest in resisting'principles so .destructive of the Union, and in averting consequences so fatal to themselves: 5 Peters 115,13,5.

■ The motion of the defendant is, therefore, overruled.

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Dissenting Opinion

Mr. Chief Jiistice Taney,

dissénting:

I ,diásen,t from -.the opinipn of 'the Codft, upon the'.motion' to' dismiss the bill. It has; I find, been the uniform practice in this. Court,, for the justices who. differed from- the Court pn constitutional-: questions, to- express 'their dissent. In conformity to • this usage, I proceed to staté'briefly the ■principle; .on which I differ, but do not,.in this stage óf the. proceedings, think it necessary' to enter fully into the reasoning upon' which my opinion is fou'ndedj' The final, hearing of -fhé. case, when ali the facts are before the: Court; would be a',more.fit ■ occasion for'■éxámi’hingr various points stated In the, opinion of"th.e Court; ih'which l-dp ífot concur..

1 dp ■ not doubtsthe’ power pf. tBis'Court to hear and determine a. licontrdversy' between states,, or 'between, individuals, in- relation to the'boundaries of the states; Where, the suit is brought to try a right of property in the soil, :or 'any other right which is properly, the. subject, óf judicial cognizance and,; decision, and,which depends upon the true’, boundary line.

But''the powers given to' the courts of the United States'’by the constitution are judicial powers;, and extend -to'those subjects, only; which are -judicial in .their character; and■ not. to those which-.-ar,e political, And'whethef the suit is.between states of' between individuals, the matter -sued -for-must be one whieh is properly the 'Subject of .judicial; cognizance and control, in order to give jurisdiction to the Court to try and decide'the flights" óf the parties to-' the,stuff ■

The object of the bill filed by- Rhode Island; as stated.io the prayer, is a’s follows: That the'northern boundary'line between your .complainants arid the'state of Massachusetts may, by the order -and decide of- this .honourable Court, be ascertained and established, and that, the-rights of jurisdiction and sovereignty, of your complainants to the whole tract of. land, with the appurtenances mentioned, described, and granted, in and by the said Chapter or letters patent to the said ■ colony of Rhode Island and Providence plantations, hereinbefore .set forth and running on the. north, an, east and west line drawn three miles south of the waters of said Charles river;'or of. any' or every part1 thereof, may be restored and confirmed to your complainants, and your Complainants may be quieted' in the full and free enjoyment of her jurisdiction-and .sovereignty over the same; and the title, jurisdiction; anfi sovereignty óf the said state of Rhode Island, and Providence Plantations over the same;, be confirmed and esta-, blished by the decree of this honourable.Court; aiid that your complainafits may have; such othef and' further relief in the premises as to this honourable'Court shall seerh meet, and consistent with equity arid good .conscience.:

It appears fróm this statement of the object of the bill, that Rhode Island claims no right, of property in the soil of the territory'in controversy. The title to the land is not in, dispute between her and Massachusetts: The subject matter which Rhode.Island seeks to recover from Massachusetts, in'this'suit,-is, “sovereignty and jurisdiction,” up to the boundary dine described -in her bill: And she dcsireifto establish.this line as the true boundary between the. states; for the purpose of showing that she is entitled to recover from Massachusetts the sovereignty and jurisdiction which Massachusetts now* ■holds over the territory in' question.'. Sovereignty ahd jurisdiction ate not ¡matters of property; for thb allegiance in the disputed territory cannot be. a matter of property. Rhode Island; therefore, sues for political rights. They .are the. only matters in controversy, arid the only things to be recovered¿ and if she succeeds in this .suit; she' .will recover political rights over .the territory in question, which are now withheld from her by Massachusetts'.-

Contests -for rights of Sovereignty and jurisdiction betweeft states over'any particular territory! are not; in my, judgment,'the subjects of judicial cognizance and control,- to be recovered and enforced in an ordinary suit ; and are, therefore", riot-within the grant of judicial power contained iri the constitution.

Iri the case of New York v. Connecticut, 4 Dallas, 4, in the note, Chief justice Ellswprth-says, “ To have the benefit of the agreement between the ¡states, the defendants below, who aré the settlers of New York, must apply'to a Court of equity, as well as the state'herself;' .but in no cáse can a specificperformahee be decreed, unless there is a substantial right of soil, not a mere right of political jurisdiction,'to be protected and enforced,”

In the case of The Cherokee Nation v. The State, of Georgia, 5 Peters, 20, Chief Justice Marshall, in delivering the opinion of the .Court, said: “ That part of the bill which respects the land occupied by the Indians, and prays the aid of the Court to protect their possession, may be more doubtful; The mere question of right might, perhaps, be decided by this Court, in .a'proper case, with'proper parties. But the Court is askéd to do more than decide on the title. The bill requires us to control the legislation of Georgia, and to restrain the exertion of its physical forcé. The propriety of such an interposition by the Court may be well questioned-. It savours too much of the exercise of political power to be Within the proper province of the judicial department. But the opinion oh the point respecting parties makes it unnecessary to decide this question.”

In the case before the. Court, We are called on. tp protect' and' enforce the “ mere political jurisdiction” bf, Rhode Island; and .the bill of the complainant, in effect, asks us‘to control- the legislature of Massachusetts, and to restrain the eXercisé of Its physical force” within the disputed'territpry. According to the opinions above referred to, these questions do. not belong to the judicial-.department. T-his construction of the constitution is, in my judgment,; the -. true one; and ,1 therefore think the proceedings in this case ought to be dismissed for want of jurisdiction.

Mr. _ Justice Barbour said,' that- he concurred in the result’of the opinion in this case. That- this Court had jurisdiction 'to settle the disputed boundary'between the two states, litigant -before it. But' he wished to be understood, as not adopting all the reasoning-by .which the Court had arrived at its conclusion. - . .

Mr. Justice-Storv did not sit in this case.

On considerationuf the motion made by Mr,.Webster ion a-prior day of the present term of-this Court* to- wit, op Monday, the l-5th day of January, A. D.1838, to dismiss the-complainant’s bill- filed in this case for. want of jurisdiction, and of the arguments of counsel thereupon had; as well .in support-of, as against the said/motion: It. is noW here ordered and adjudged, by this Cohrt, that the. said motion, be,and the samé is hereby overruled;

Case Details

Case Name: The State of Rhode Island v. the State of Massachusetts

Court Name: Supreme Court of the United States

Date Published: Feb 21, 1838

Citations: 37 U.S. 657; 9 L. Ed. 1233; 12 Pet. 657; 1838 U.S. LEXIS 372

Court Abbreviation: SCOTUS