210*] *THE STATE OF RHODE ISLAND and Providence Plantations, Complainant,

THE STATE OF MASSACHUSETTS, De

Chancery practice-actions between States as to boundaries-pleading, two defenses in same bad.

By a rule of the Supreme Court, the practice of the English courts of chancery is the practice in the courts of equity of the United States. In England the party who puts in a plea, which is the subject of discussion, has the right to begin and conclude the argument. The same rule should prevall in the courts of the United States, in chancery

In a case in which two sovereign States of the United States are litigating a question of boundary between them, in the Supreme Court of the United States, the court have decided that the rules and practice of the Court of Chancery should substantially, govern, in conducting the suit to a final issue. 12 Peters, 735-739. The court, on re-examining the subject, are fully satisfied with the decision.

In a controversy where two sovereign States are contesting the boundary between them, it is the duty of the court to mould the rules of chancery practice and pleading in such a manner as to bring the case to a final hearing on its merits. It is too important in its character, and the interests concerned too great, to be decided upon the mere technical principles of chancery pleading.

In ordinary cases between individuals, the Court of Chancery has always exercised an equitable discretion in relation to its rules of pleading, whenever it has been found necessary to do so for the purposes of justice. In a case in which two sovereign States are contesting a question of boundary, the most liberal principles of practice and pleading ought, unquestionably, to be adopted, in order to enable both parties to present their respective claims in their full strength. If a plea put in by the defendant may in any degree embarrass the complainant in bringing out the proofs of his claim on which he relies, the case ought not to be disposed of on such an issue. Undoubtedly, the defendant must have the full benefit of the defense which the plea discloses, but at the same time, the proceedings ought to be so ordered as to give the complainant a full hearing on the whole of this

of meeting for them to begin running the lines that had thus been determined, and they gave information thereof to the governor of this their province; but the Legislature not being convened until some time after the period affixed for the Rhode Island commissioners to begin the survey, they thought it unnecessary for them to join in the commission. These line we perambulated in company with the commissioners of the State of Rhode Island, and excepting one or two stations between Providence and Bristol, which were well ascertained, we found that they had encroached upon this Commonwealth from one quarter to three quarters of a mile in width. We were attended by suitable persons, approved by both parties, for making the necessary observations and surveys. Here, probably, all further dispute relative to boundary lines with the colony of Rhode Island would have forever ended, had it not have been for the rage of political parties at this time within that colony; one of which, to effect a decided majority, was extremely anxious for an extension of northern jurisdiction. Influenced by these motives, and perhaps in some measure by their late success, they in 1740 brought forward a new claim for extending their northern boundary beyond the line established in 1718; and to support that claim they appointed commissioners in 1750 to examine what is now called Charles River, and from the most southern part of the same, to survey off three miles as the boundary of Massachusetts, agreeably to their charter. A plan of this survey was laid before us, and copy of it herewith presented. We have inserted our own survey of what we conceive to be the most southern part of Charles ing's Pond, and the position of the Angle Tree. It may not be unnecessary to observe that at the southern head of what we call Charles River, is a place known by a large chestnut tree; thence the stream descends to Whiting's Pond, where it forms a considerable lake, and afterwards resuming its proper shape (and now known by the name of Mill River or brook), pursues its course in a northerly direction till it joins that stream which is known by the name of Charles River, the confluence of the two streams six miles more northerly than the chestnut tree at the southern head of Charles; after perambulating the bounds now practiced upon, and ascertaining their deviations from the stations to which they ought to have been fixed, and learning the principles upon which Rhode Island supports her claims, and the extent of them, we adjourned to the 5th day of December last, then to meet at Providence, in the State of Rhode Island; at which time and place we met with the commissioners from Rhode Island, and after fully discussing the several claims, and endeavoring to conciliate the difference between the two States, agreeably to the powers of our commission, we were convinced that no agreement can be made at present with them unless we yield a valua ble territory, to which they have no claim, and which we hold not only by repeated charters, but by the agreement of the State of Rhode Island in 1718; and so far from its appearing that encroachments have been made [*216 by this Commonwealth on that State, that the contrary is notoriously the fact.

bounds; accordingly, those two governments 214*] in 1664 appointed commissioners *to survey the most southern branch of the Charles River, and to lay off from thence three miles due south as their boundary line by charter; this was accordingly done, and they fixed upon a large tree, then known and since noted by the name of the Angle tree, as the north line of Plymouth, and the south line of Massachusetts. The knowledge and name of the place is preserved, and the Commonwealth, in order to perpetuate it, have erected in the place of the tree, the remains of which are now to be seen, a handsome stone monument, which bears the name of Angle Tree, and is explained by suitable inscriptions on the different faces of it. This the commissioners apprehend to have been the true and original boundary, and is three miles south of the most southerly waters of Charles River. It does not appear that the Colony of Rhode Island ever expressed any dissatisfaction respecting their northern boundary until 1716, or thereabouts, which finally ended in the appointment of commissioners by both governments in 1718, who fixed a new station about two miles north of the Angle Tree, and which was called after the surveyors, Woodward and Saffrey's Station'." This place is well known, although no records of it have been preserved, or the proceedings of the commissioners ratified by either government; yet the line drawn from it has been practiced upon as the line of jurisdiction between the governments from that to the present time. This Commonwealth then lost two miles in width along the northern line of Rhode Island, and seems to have acquiesced in the agreement upon principles of generosity. The ancient charter of New Plymouth and Rhode Island were ir-River, as intended by the charter, above Whitregularly bounded on one another: the former, as was supposed, by the shores of the Narraganset Bay, the latter by three miles east of those shores; this interference of boundary, however, appears not to have given any discontent, as the date of the charter of New Plymouth was prior to that of Rhode Island; and the peaceful jurisdiction to the shores of Narraganset Bay was enjoyed not only by the old Colony of Plymouth, but by Massachusetts (after these two colonies were united by the charter of 1691), down to the year 1730, at which time the Colony of Rhode Island passed an act claiming the jurisdiction of the territory on their eastern boundary, granted to them by charter, in this act and in the subsequent dispute and determination of the subject, not a claim, nor the limitation of one, but that their northern boundary was satisfactory, as established in 1718. In 1740 the King of Great Britain, who was then the sovereign of these States, appointed commissioners to hear and determine the dispute then existing between the governments, who, after hearing the parties, came to the determination as in number two, by which the extent of Rhode Island charter was allowed, and the jurisdiction of Massachusetts cut off from the shores of Narraganset Bay. This judgment, unexpected by either party, was disapproved of by both, and they accordingly appealed to the king in council, where, however, it was ratified in 1746. As soon as this in formation was received by the Colony of Rhode Island, they proceeded to appoint their 215] *commissioners, and assigned the time

The counsel of the State of Massachusetts, | cause for discovery and relief, it has answered after January Term, 1839, and in conformity its office, and must be sustained. The case with the order and leave of the court then giv- seems to the respondent in no material degree en, filed a plea and answer to the amended bill to differ from a general demurrer to the bill; of the State of Rhode Island. The plea and except only that the allegations of the plea answer were the same, in all important partic- control those of the bill, and are admitted to ulars, as that originally filed at January Term, be true pro hac vice only. 1834. The plea and answer conclude "And the defendant saith that there is no other matter or thing in the complainant's said bill of complaint contained, material for this defendant to make answer unto, and to which said defendant has not already pleaded and answered as aforesaid, all which matters and things pleaded and answered, as aforesaid, the defendant is ready to verify and maintain as the court shall order. Wherefore said defendant prays to be hence dismissed, with costs."

All the matters in the bill, material in this case, and in the plea and answer, with the exception of the amendments given on pages 213-letters patent of the council established at 215, ante, are stated fully in the report of the case in 12 Peters, 657, and in the opinion of the court delivered at this term by Mr. Chief Justice Taney.

The case was before the court, on the sufficiency of the plea and answer. It was argued by Mr. Hazard and Mr. Whipple for the State of Rhode Island, and by Mr. Austin, AttorneyGeneral of Massachusetts, and Mr. Webster, for the defendant.

Before the argument was proceeded in, a question arose between the counsel in the case on the right of the counsel for the complainants to begin and conclude the argument.

The court held that by a rule of the court, the practice of the English courts of chancery is the practice of the courts of equity of the United States. On looking into the books of practice in the English courts of chancery, it appears that the party who puts in the plea which is the subject of discussion has the right to begin and conclude the argument. The same rule should prevail in the courts of the United States in chancery proceedings.

Mr. Austin, for the State of Massachusetts. The question before the court is on the sufficiency of the plea in bar to the plaintiff's demand, both for discovery and relief. The plea is open to any just exception, either as to its form or substance; but as it purports to be an answer or bar to the plaintiff's complaint, its sufficiency must materially depend on the structure of the bill in which that complaint is set forth. Any answer is sufficient to a bill which is so framed as to require none. The respondent contends that this opens, substantially, the whole merits of the case. Bogardus v. Trinity Church, 4 Paige, 178.

Before the sufficiency of the plea can be ascertained, the matter to be answered must be examined and understood. The bill sets forth the plaintiff's title. It is of a form adopted not very remotely, into the practice of chancery; and requiring, or at least admitting, what the books call, without much propriety, an anomalous or irregular plea; thus applying terms to the plea, which in fact belong to the bill. It introduces, in anticipation, the subject matter of the defense, and attempts to avoid the effect of it by special allegations. Substantially, the bill enumerates and recites the Plymouth in 1621; the deed of said council to Sir Henry Roswell and others, of 19th March, 1628; the first charter of Massachusetts, in 1629, by Charles I. From all these, one fact only is material, and that is not in dispute at all, viz., that Massachusetts became a colony of the British crown at the settlement of it by the Pilgrims, and that its southern boundary line first mentioned in the letters patent of 1621, and repeated in the words whenever occasion required, was by "all those landes and hereditaments, whatsoever, lyeing within the space of three Englishe myles on the south parte of the saide River, called Charles River, or any or every parte thereof."

It is obvious from these public papers, the effect of which is admitted by both parties, that the southern boundary of Massachusetts was described with sufficient accuracy; and the only matter to be done to fix it with perfect certainty was to run on the earth, and through the then uninhabited wilderness, the line described in the charter.

The bill proceeds, after referring to the surrender of the letters patent of the council of Plymouth, in 1635, 17th June, and the planting and purchasing of what now is the territory of Rhode Island; which facts are not material or controverted; to recite the charter of the Colony of Rhode Island, granted by Charles II. on the 8th July, 1643, whereby Rhode Island is bounded "northerly on the said south or southerly line of Massachusetts."

The bill states, also, the dissolution of the first charter of Massachusetts by the Court of Chancery in England, the new charter of William and Mary, in October, 1691, re-establishing on this line the ancient boundary in the The sufficiency of the plea is very different same words, and the Declaration of Independfrom the truth of it. For the purpose of the ence of the United States; documents not es present inquiry, all its allegations are to be sential to any controverted point in [*218 taken to be true. If the plaintiff denies any of this suit, unless it be, as before was contended 217*] them, he has another mode of proceed-by the Attorney-General of Massachusetts, and ing: it is understood also that all allegations made in the bill, and denied by the plea, are, for this hearing, to be taken according to the plea, and not according to the statement of them in the bill: and it is admitted that whatever is stated in the bill and not controverted by the plea, is in this stage of the cause to be taken as true. If, under these circumstances, the plea leaves the plaintiff without a sufficient

now again respectfully insisted upon, that the Declaration of Independence repealed all these charters, and established the several former colonies in their new character of sovereign and independent States, by the line and boundary actually enjoyed and possessed by them respectively, on the day of their political nativity-the 4th of July, 1776.

All these documents not controverted by the

In the first place, it is apparent in the bill, and distinctly admitted by the learned counsel of Rhode Island, that no fraud is charged to anybody in these transactions; but it is alleged that the parties acted under a mistake. It is averred that the commissioners of Massachusetts, believing, no doubt, that the point which they designated as Woodward and Saffrey's Station was three miles, and no more, from Charles River, affirmed to the Rhode Island commissioners, that it was the proper place of beginning for the line, and that the Rhode Island commissioners, taking the word of the Massachusetts commissioners for true, or searching for themselves and coming to the same conclusion, or examining the map then before them, made by Woodward and Saffrey, were of the same opinion, and jumped together in judgment; and that the commissioners of the two colonies, in 1718, in running out the line, were actuated by the same means, and established the line, which, as ever before, so ever since, has been the actual line of division between these neighboring sovereignties. And that in all this, without fraud or misrepresentation, there is, nevertheless, a fatal mistake.

plea, and not to be denied with truth, are ad- | possession in conformity with such agreement mitted with all their legitimate consequences. for more than a century? The bill then proceeds to state that disputes had arisen, not in regard to any charter, or where the line ought to be drawn in conform ity with the provision of those instruments; but where on the earth's surface a line corresponding with the charters should be described. It sets forth the appointment of commissioners by each colony, "to settle the boundary line," the meeting of those commissioners; and their unanimous agreement, certified under their hands on the 19th January, 1710, 1711; "that a stake set up by N. Woodward, and S. Saffrey, in 1642, and since often renewed, in latitude forty-one degrees, fifty-five minutes, being three English miles distant southard from the southernmost part of Charles River, agreeably to the letters patent for the Massachusetts province, be accompted and allowed on both sides the commencement of the line," etc. The commissioners having thus ascertained a point of beginning, and it being necessary to protract the line from that point which they did not do at that time, the bill recites the appointment of other commissioners by the two colonies, and their meeting at Rehoboth, on the 22d October, 1718, to protract the line; the fact that they re-affirmed the correctness of the place of beginning, ran the line as described by them, certified their proceedings under the hands and seals of a majority of their whole number, and of the delegation of each colony; and that the General Assembly of Rhode Island passed a resolution on the 26th October, 1718, ordering that the return be accepted, and placed to record in the colony books.

It seemed to the counsel of Massachusetts that if the bill had stopped here there would be nothing for the respondents to answer, because it is everywhere admitted in the bill that the line thus run is that to which Massachusetts laid claim before Rhode Island was in existence; the line to which Massachusetts was possessed, and over all territory north of which she was in the actual exercise of jurisdiction when the charter of Rhode Island was granted; and that is all she had ever claimed, or now claims in that direction, by charter, possession, or title of any kind. It would seem, too, that both parties to this suit admitted the line by the charter; that they intended to describe on the earth the line so designated in the charter; that they did so by commissioners mutually ap pointed on two different occasions, at the interval of seven years; and that the plaintiff had accepted and recorded their proceedings, as satisfactory and conclusive, at the time, now more than one hundred and twenty years ago. 219*] *But the plaintiff having thus inserted the bar matter in his bill, proceeds to give his answer to it. It is obvious, therefore, that to this answer, and to so much of this answer only as is material to set aside the bar matter, is the respondent bound to reply. The plaintiff has furnished for the respondent a sufficient defense; he has set up a bar to his own further proceedings, and unless he removes the bar of his own procuring, the respondent has no need to make any reply. What, then, is the allegation in the bill which professes to be sufficient to countervail an agreement of this sort, and of

It is admitted that all parties acquiesced in the doings of the commissioners until 1749, more than thirty years; when Rhode Island discovered, as is alleged, that the stake of Woodward and Saffrey was more than three miles, viz., seven miles from Charles River, and that the Rhode Island commissioners and the Rhode Island Legislature, acting under this mistake, are not bound by the treaty, compromise, arbitration, or award, and have now a right to claim for that cause, by the intervention of this honorable court, to set aside the conventions of 1710 and 1718, and re-examine and adjust the boundary on their present information, and by the letter of their ancient charters, as they are now understood by the plaintiff.

The residue of the bill recites the ex-parte proceedings of Rhode Island to determine the true line, independent of the agreements of 1710 and 1718, and the various attempts made to induce Massachusetts to re-open the matter; all which were ineffectual, as is confessed by the fact, distinctly admitted, that for all time since Massachusetts has been a government, colonial, provincial, federative, or sovereign, she has had the actual, undisturbed, quiet possession and occupation, jurisdiction [*220 and control of and over the premises in dispute.

Now, it seems to the counsel of the respondent, that to this complaint, thus set forth, a demurrer might safely have been filed, and that to a bill to which a demurrer would be sustained, any plea or answer must be deemed sufficient. Such bill contains its own answer.

It incorporates the defense; and whatever else may be said of the plea, it cannot be deemed inadequate or insufficient for the defense.

But the respondent is unwilling that the rec ord should contain only the plaintiff's colored view of the treaty, covenant, or arbitrament, entered into in 1710 and 1718. However safe it would be to admit such a mistake as the plaintiff alleges, yet the facts afford a stronger ground, and the respondent avails himself of it.