time. It was the very question they met to settle; and their opinion, judgment, and award, made it what they determined it to be.

The respondent contends, first, that it is not necessary to the sufficiency of the plea, to controvert or notice in any way the suggestion of a mistake.

Second, That mistake or no mistake are substantially and sufficiently put in issue by the plea, so that the plaintiff may join the issue there tendered, if he pleases.

The plea therefore, to the substance of which the attention of the court is now solicited, takes from the plaintiff's bill the whole subject of the proceedings of the commissioners in 1710 and 1718, and treating of each of them severally, avers that the "whole real and true merits of said complainant's supposed cause or causes of action, claims, grievances, and complaints, set forth and supposed in said bill of complaint, were fully heard, tried, and determined, in the hearing and by the judgment of said commissioners; that the agreement was On the first point, it is respectfully submitted fair, legal, and binding between the parties, and that where a party alleges a proceeding to be was, in all particulars, a valid and effectual had under a mistake of fact or law, and sets settlement of the matter in controversy; and forth the circumstances in which he supposes was had and made without covin, fraud, or mis- the mistake to exist, if by the circumstances so representation, and with a full and equal stated it is apparent that there was no mistake, knowledge of all circumstances by both parties; the allegation may be treated as a nullity. The and that the same is still in full force, in no legal inference from the matter so stated, and way waived, abandoned, or relinquished; that not the term applied to it, must regulate the the station called Woodward and Saffrey's Sta- pleading of the adverse party, and the decision tion was then well known, the place where it of the court. Story Eq. Pl. sec. 680, and note. was fixed of common notoriety, and the line The plaintiff sets forth his circumstances of run therefrom, as aforesaid, capable of being supposed mistake. They are these: Massachu discovered and renewed; that the said defend-setts being in possession of a line or boundary, ant has held and possessed, occupied and enRhode Island complains, and purposes a joint joyed the land, property, and jurisdiction, ac- commission to settle it. Commissioners meet. cording to said station and line running there- Governor Dudley, on the part of Massachusetts, from, from the date of said agreement to the tells Lieutenant-Governor Jencks, of Rhode present time, without hindrance or molesta- Island, that the true point is the Woodward tion." and Saffrey Station. Governor Jenckes, either knowing that fact himself, before, or in some other way being convinced, agrees to it, and signs an award fixing that station as the point of beginning. Nine years after, the same thing is repeated by other commissioners, and the whole line run from that point. The bill does not allege that the Rhode Island commissioner believed the station to be the true one, because Governor Dudley told him so; but avers that he did believe the fact, which being the very thing he was commissioned to ascertain, it must at *this distant day be supposed that he [*222 believed it on sufficient and satisfactory examination.

It is certainly true that the plea does not undertake to say that the Woodward and Saffrey Station is three miles southwardly of Charles River and no more. It does not put in issue whether now a revision of the line, according to the charter, would describe the same place. If the plans exhibited in this case, either by Rhode Island or Massachusetts, are correct, no revision could alter the line; for it is clearly within three miles of one of the branches of that river; and the only question would be, whether the charter, by the terms in it, viz., "on the south part of Charles River, or of any or every part thereof," meant to include one of the forks as part of the river or not. But the geographical and historical facts, which are notorious, and, of course, to be taken notice of 221*] by the court (one of which both these maps prove), are important in the case. Charles River had never been explored in 1642 by any European, and its borders were occupied only by savages. Woodward and Saffrey went there to determine the river, the offset of three miles, and the line of boundary. It is very immaterial how they determined it.

The stream called Charles River acquired that name not from nature, but man. When and what was called Charles, became Charles; what was called part of the river, was, for all human purposes, thenceforth known and notorious as part of the river. They fixed their station within three miles of water flowing into the main stream. They found or they called this water Charles River. If it was unquestioned, it must have been conclusive. If it was questioned or questionable, if after Rhode Island came into existence, and in 1710, near seventy years after the naming of this water by Woodward and Saffrey, it was brought into question by Rhode Island, it was then a proper subject of settlement, compromise, and agreement for the commissioners, and their decision settled the matter conclusively for all after

It is obivous that in this, by the plaintiff's own showing, is no mistake, as that term is understood in equity.

When negotiators meet to decide a question, it is impossible but that one must make an assertion to the other which, after the lapse of a hundred years, the generation of the then present period may deem wrong in point of fact. So of arbitrators or referees. If a decision that should appear to the heirs of a remote ancestor to be wrong could be re-investigated on the allegation of the losing party that the verdict or judgment was a mistake (which every losing litigant is ready enough to make), there could be no end to lawsuits: and the decision which this court may pronounce in this case, may, on the same principle, be revived a hundred years hence, by a suggestion that there was a mistake in the forming of it.

It is impossible that any declaration made by Governor Dudley one hundred and thirty years ago could be known now; and the suggestion of the plaintiff, in this regard, must be a mere fancy-sketch. The allegation, if made, could be only the declaration of an opinion.

Gov. Dudley died in 1720, aged seventy-three years. 1 Holmes's Annals, 525.

The fact referred to occurred in 1642. five or six years before he was born.

The statement of an opinion is no misrepre- | that his decision is a mistake. Lord Commis sentation. Scott v. Hanson, 1 Simon's Rep. sioner Wilson, in one of the cases (Morgan v. 13. Such a statement is not calculated to de- Mathews), says "It would be a melancholy ceive, but rather to put the opposite party on thing if, because we differ from arbitrators in his guard. Trower v. Newcomb, 3 Merivale, point of fact, we should set aside awards." 704. Ignorance, which might have been rem- And Lord Chancellor Eldon, in Ching v. Ching, edied by due diligence and inquiry, is no cause states in strong terms, "If a question of law is for relief. Perry v. Martin, 4 John's Ch. R. referred to an arbitrator, he must decide it; 566. And Lord Loughborough has emphatical- and though he decides wrong, you cannot help ly said, ignorance is not mistake.

If the Rhode Island commissioner acted on such representation, supposing it was made, and if it was false, yet his action is not to be considered as founded in a mistake, as that term is understood in equity; because the relations of the two commissioners was not such as to induce one to place a known trust in the other, but the contrary. Fox v. Mackrith, 2 Bro. Ch. Cas. 420; Smith v. The Bank of Scotland, 1 Dow. Parl. C. 272; Laidlaw v. Organ, 2 Wheat. 178, 195; Evans v. Bucknell, 6 Ves. Jun. 173, 182-192. Such representation would not vitiate a sale; a fortiori, not an arbitrament. Fenton v. Brown, 16 Ves. 144; 2 Kent's Lectures, 2d ed. 484, 485.

If there was no false representation; if the Rhode Island commissioner believed a fact, the truth of which it was his special duty to investigate, and which he had the means of investigating; and all this appears by the plaintiff's bill, the judgment and the award was not mistake, but conviction. The plaintiff, by calling it a mistake, cannot change the rule of plead ing or of equity; and it may be treated as a misnomer or a nullity.

it."

The case is different where arbitrators, conscious of a mistake, desire to rectify it; because, in that position, the supposed decision is not their judgment, and this consideration reconciles any cases of a seemingly different character from those above cited.

This supposed mistake may, however, even on the strict rules of equity practice, be passed without notice in the plea, because the allegation of the plaintiff renders it invalid by lapse of time. It is of ancient date, and from that circumstance impossible to be ascertained, or if ascertained, to have any present operation.

Courts of equity, by their own rules, independent of any statute of limitations, give great effect to length of time; and they refer frequently to statutes of limitations for no other purpose than as furnishing a convenient measure for the length of time that ought to operate as a bar in equity to any particular demand. Beckford v. Wade, 17 Vesey, Jun; 2 Scho. & Lefroy, 626; Paul v. M'Namara, *14 Vesey, Jun. 91; Gifford v. Hort, 1 [*224 Scho. & Lefroy, 406; Bogardus v. Trinity Church, 4 Paige, 178.

223*] *In further considering this allegation Now, though the question before the court of mistake, the great questions arise, in what assumes to be one of pleading and not of equirelation or capacity did the present plaintiff ty, yet it is maintained by the respondent that and respondent stand to each other at that a plea is sufficient which leaves no material time? What was the capacity of the commis-matter unanswered; that what is not answered sioner, by whom the line was run? and what is the law of a case so situated?

redounds to the benefit of the plaintiff; and if this mistake is not answered, it may count for him valeat quantum. But if it is in itself immaterial, and of State character, it may be passed over without notice, because it can in no shape make out a case for the plaintiff.

Second, the respondent contends "that all which the strictest rule of equity pleading requires in this case is met by the allegation in the plea that the "said agreement was fair, legal, and binding between the parties, with

If the parties now before the court stand here as common suitors, corporations, or individuals, controverting the boundary of an estate, and these commissioners are referees or arbitrators mutually chosen to decide the controversy, then the rules regulating the proceedings of an arbitrament and award at common law or equity may well enough be invoked to determine the question before the court. But in this view, the mistake of law or fact, the wrong judg-out covin, fraud, or misrepresentation, and ment and erroneous decision of arbitrators do not authorize the re-opening and re-examining their proceedings. Knox v. Symonds, 1 Ves. Jun. 369; The South Sea Co. v. Bumstead, 2 Eq. Pl. Abr. 8; Shephard v. Merrell, 2 Johns. Ch. R. 276; Delver v. Barnes, 1 Taunt. 48, 51; Morgan v. Mathews, 2 Ves. Jun. 18; Jones v. Bennett, 1 Bro. Par. Cas. 411, 428; Ching v. Ching, 6 Ves. 282; Annersly v. Goff, Kyd on Awards, 351; Mitford's Plead. in Eq. by Jeremy, 131, 132; Lyon v. Richmond, 2 Johns. Ch. R. 51; Kleine v. Catara, 2 Gall. 61; Dick v. Mulligan, 2 Ves. 23; Young v. Walter, 9 Ves. 464; Wood v. Griffith, 1 Swans. 55; Auriol v. Smith, 1 Turner & Russ. 125; Goodwin v. Sayres, 2 Jacob & Walker's Rep. 249.

These cases go the whole length of establishing the position that the mistake of the arbitrator on a matter of fact or law referred to him cannot be inquired into; or rather, that his judgment and opinion make the rule, and there is no authority above him competent to say

with a full and equal knowledge of all circumstances by both parties." This allegation is not now controverted: and it seems to the respondent's counsel impossible to say that, with a full and equal knowledge of both parties, their unanimous determination of the question submitted to them could be a mistake relievable in equity.

To the form of the plea no exception is taken by the learned counsel for the plaintiff; but he contends that it is novel and insufficient in this, that it pleads possession as a bar, and not title. To an action at common law or at equity, where the usual statute of limitations applied, this exception might, if well taken in point of fact, cause some hesitation. But it is not founded in a correct estimation of the character of the plea. The respondent, in his plea in bar, asserts his title to the territory in dispute, and derives it from the joint effect of the agreements of 1710 and 1718, and possession under them forever. It may be that under the

peculiar circumstances of this case, neither the agreement, if made against the letter of the charters, nor possession, if held adversely and without consent, could sustain the respondent's claim; nor is it material to inquire how this would be, because in truth and fact the title of the respondent rests on neither one of those pillars alone, but on both; upholding, strengthening, confirming, and supporting each other, and forming together a foundation of irresistible strength. They have not been separated for more than a century, and ought not to be separated now in the matter before the court. The true character of the plea is, title derived in part from two sources, and concentrating into one point, that of indefeasible right. I Chitty's Pleading, 512, and the cases there collected.

But before this plea can be overruled for any technical exception of this or any other sort, the court will come to the consideration of a much more important and interesting question than yet has been presented; full of novelty and grandeur, and suited to the cause, the parties, and the court.

The question thus presented is this: By what code of laws, by what forms of proceeding, by what principles of judicial construction, is this controversy to be settled? It is impossible not 225*] to perceive that the case before the court is not one of ordinary judicial cognizance. It is not the boundary of a farm or a water-lot that is in dispute, but the limit of a nation. It is not a question of ownership in the soil that is presented, but of jurisdiction over a territory and its inhabitants. The parties. too, are not ordinary suitors in a court of justice: they are States, called by the plaintiff "sovereign States;" and standing in that relation to each other, before this high tribunal, which, like the ancient Areopagus, is to adjudicate on the tranquility and peace of mankind.

those great and fundamental doctrines of international law, which, by the common consent of mankind, are the basis of the intercourse of the civilized world.

The high demand of the plaintiff is that your honors will "restore and confirm to him his violated rights of jurisdiction and sovereignty." These are rights which no private party ever could possess, and over which no other judicial tribunals ever held jurisdiction. The light which is to guide the conscience of the court in this new field comes not from books of pleading, or reports of adjudicated cases between citizens or subjects. Such matters belong not to them. It is to be found only in the source of eternal justice, as it comes from intelligence and truth.

The case, examined in the character which it thus properly assumes, however important in principle, is one of easy solution.

The parties to the suit were once colonies of Great Britain. The relation thus sustained is matter of public history, and familiar to the court. Nominally in a state of vassalage, they were in reality free; and professing a formal allegiance to the British crown, actually assumed and exercised the prerogatives [*226 of sovereignty. They made war and peace; coined money; entered into confederacies; and made treaties of alliance, offensive and defensive, with each other. The proceedings of 1710 terminated in a treaty of boundary, differing in nothing from that of 1783 between Great Britain and the United States except in extent. No earthly power but the contracting parties ever attempted to interfere with it. It was made by negotiators of each party, with unlimited powers to compromise and settle the boundary. The terms are plain and incontrovertible. The treaty, thus made, established the station of Woodward and Saffrey in latitude 41 degrees, 55 minutes, to be three English miles from Charles River, and "that, agreeable to the letters patent for the Massachusetts Province, it be accompted and allowed on both sides the commencement of the line between Massachusetts and the Colony of Rhode Island."

The court, on solemn consideration, has decided that on these great interests of territorial jurisdiction and State sovereignty, and on the transfer of the allegiance of five thousand people from one civil government to another, essentially different in many of its institutions, It is obvious from the whole of the plaintiff's customs, and laws, it has a constitutional pow-bill that this treaty only confirmed and estab er to pronounce judgment and decree justice. lished what had always before been admitted Be it so this point is not now to be contro- in point of fact. verted. But whence does the court derive this In 1718 another treaty was negotiated, con. power? Not from its ordinary judicial authori-firming the treaty of 1710, and more fully carty; not as a branch of that prerogative by rying it into effect. which it is to decide cases in law and equity;" but by a special provision of the Constitution, for the administering of which no forms are provided; a power above and beyond the reach of any other judicial tribunal in the world; wholly without precedent in the principles of the civil, the canon, or the common law; and vesting in this high tribunal a discretion and authority, which yet has been limited by no legislation of Congress, nor by any rules or acts of its own.

In a case where "the file affords no precedent," and there is neither common nor statute law to guide the proceedings of the court, the counsel of the respondent respectfully contends that the case brings with it into this tribunal its own law, in the principles of an elevated and perfect justice, unfettered-as in their nature they are incapable of being fettered- by technical subtleties and petty forms. It stands upon

These titles to the territory, founded on the solemn faith of two formal treaties, under and by force of which the respondent has always held "unmolested possession," are presented to this court, thus held over sovereigns, on a question exclusively of international law, as a bar in equity and justice to further molestation and disturbance.

Whether, being negotiated between colonies, they are entitled by the law of nations to be termed treaties, or only conventions, agreements, or pactions, they are by that law equally sacred. Vattel, 193, sec. 154, 155; 227, sec. 215.

Why are they not binding? The suggestion in the plaintiff's bill that they were not ratified by the mother country, is a poor attempt at self-stultification. They needed no ratification. They were not repudiated by Great Britain; and, like all acts of the colonies, were in force

through Whiting's Pond, two and a half miles off, and then into another brook still further on. Their report (annexed to the bill) shows this. After mentioning that the Rhode Island committee measured from Charles River as it now is, they say, "we have inserted our own survey of what we conceive to be the most southern part of Charles River," etc. And the report then tells how they made the matter out, as has just been related. Here it appears that the pretense about Mill Brook was a new one, and their own. They do not speak of it as having ever before been thought of, but as a conception of their own.

The allegation, therefore, that there had been 229*] a dispute about this *brook in 1710, 1711, which had led to a compromise then made, is wholly unsupported and unfounded. Indeed, the idea that Charles River ever could have been mistaken for Mill Brook, or the brook for the river, or that they ever could have been identified and taken for one and the same, appears to me to be preposterous. Charles River had its present name, the only name it has ever had, even before the first settlement was made by the Massachusetts Colony. It was so named in the first charter by King Charles I. to that colony, in 1629. Whoever first went there and saw it, marked it as one of the great natural boundaries for the colony. A boundary definite and permanent, about which there could be no uncertainty or dispute. Having the broad river before their eyes, although in the wilderness, and not far to be seen, it is not likely that they spied out the particular tributary brook, much less that they groped their way through the bushes and swamps, to see where it came from, that they might honor it, Whiting's Pond, Jack's Pasture Brook, and all, up to the big chestnut tree, with the name of the king.

but under her jurisdiction. Whether that territory does or does not justly belong to Rhode Island, by her charter, and equally so by the charter of Massachusetts, is the question which constitutes the merits of the main cause, and can only be tried when those merits are put in issue.

*

Some further disclosures are made in the report of the Massachusetts committee of 1791, which ought not to be overlooked. Having mentioned that Old Plymouth Colony and Rhode Island had the same northern boundary on Massachusetts, the report says: "The erection of a third government, referring to the same bounds (the Rhode Island char- [*230 ter of 1663 had then just been granted), seems to have rendered it necessary for Plymouth and Massachusetts to ascertain their bounds." Accordingly commissioners were then (in 1664) appointed, who "fixed upon a large tree, called the Angle Tree, as the north line of Plymouth and the south line of Massachusetts," etc. "This (says the report) the commissioners apprehend to have been the true and original boundary, and is three miles south of the most southerly part of Charles River." They then mention the appointment of commissioners by Massachusetts and Rhode Island in 1718, "who fixed a new station, about two miles north of the Angle Tree," called Woodward and Saffrey Station. "This Commonwealth, then, lost two miles in width along the northern line of Rhode Island."

Thus these Massachusetts commissioners themselves falsify the pretended Woodward and Saffrey Station, which they call a "new station," fixed upon in 1718. And it is a striking fact that although the settlement with Plymouth was only twenty-two years after the date now assigned to the Woodward and Saffrey Station, yet, in that settlement, not a The counsel thinks that he sees evidence of a word was said about any such station. The compromise in the clause of the Roxbury agree-plain inference is either that none such existed, ment, leaving five thousand, or the land within or that Massachusetts concealed it for the one mile north, to the inhabitants of Provi- purpose of gaining two miles more upon Plydence or others. But the committee assigned mouth; and that with a view to fixing a line their own, and a different reason, for that for Rhode Island, without giving Rhode Island clause; which was, that some of the inhabitants any notice of her doings, or allowing her to be of Providence had laid out lots there. But it is a party to them. The probability is that no not pretended that any notice was taken of that such station was ever heard of until Colonel clause by the government of Rhode Island, or Dudley asserted that there was or had been that it was ever acted upon by either govern- one. The report in my hand states that no ment. Again, if the Roxbury committee had record of it had been preserved. The Massabeen making a compromise instead of ascer-chusetts committee of 1750 say that they found taining and fixing the charter line, their report would have shown it, and the grounds of it. They were bound to show this; for their respective legislatures had a right to know what they did, and why they did it. Now, the report of this committee, on the face of it, negatives the supposition of a compromise. It professes to go by the charters; and that the station agreed upon was on the true charter line, and no more than three English miles from Charles River. And so the General Assembly of Rhode Island was led to believe, and not that anything was done by way of compromise. A singular compromise it would have been certainly, had it been so intended, by which Massachusetts took to herself five miles of the Rhode Island territory, and in consideration thereof, allowed the inhabitants of Providence or others, to retain the land within one mile,

none, and it is plain from all the other reports that none existed at their dates. Even Dudley himself did not pretend that he had ever seen any. And there is not, in the whole case, a particle of evidence that there ever was any such station in existence.

It is necessary that I should now take one more look at this now important Jack's Pasture, or Mill Brook, and notice the use which the Massachusetts committee of 1791 endeavored to make of it, and which the defendant endeavors to make of it, since it was then brought into notice. That committee, in its report, says: "It may not be necessary to observe that at the northern 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