I will now proceed to consider the question of the sufficiency of the defendant's plea as a bar. This plea is in bar to the whole bill.

known by the name of Mill River, or brook), | up a supposed cession or grant from her, in bar pursues its course in a northerly direction till it of that title. Let him, then, present that bar: joins that stream which is known by the name matter and our reply to it, in such a manner of Charles River." Here the committee them that they can be fairly tried. Let him not deselves mark the distinction between Charles prive us of a fair trial upon one question or the River and the brook that runs into it, calling other, either upon the merits, or the bar, or each by its own proper name, by which it had both; as he had it in his power to do under always been known and still is. If all the trib- the twenty-third rule of practice established utary streams which find their way into a river by the court, allowing a defendant to have the are to take its name, and to be considered part benefit of his *bar matter, under his an- [*232 of it before they reach it, and contribute their swer to the merits, as fully as he can by 231*] mites to its *waters, then would there pleading it specially. be a mighty change in the great natural boundaries, by rivers, between nations and States, and even counties. If the Mississippi should be so measured, it would be a wonderful river to behold; and many a great State, and parts of States, would disappear from the map of the United States. But the Missouri is not the Mississippi, nor part of the Mississippi, until it joins it; and if à State should be bounded on a line to be run twenty miles distant from the Mississippi, nobody would dream of measuring the twenty miles from the Missouri as part of the Mississippi. When two rivers, or streams, come together and form one river, which keeps the name of one of the branches, that name can never be understood to comprehend the other branch, having a distinct name of its own. If, therefore, this Mill Brook, instead of being a mere streamlet creeping into Charles River, was really a principal branch of Charles River, having its own proper name; neither that name nor the brook could ever be confounded with the river or its name, until they were swallowed up in the main river.

The requisites of such a plea being familiar to the court, we have only to inquire whether the present plea possesses those requisites. Our objections to it, I will endeavor to bring under one or other of the following heads: 1. The matter of the plea does not constitute a bar to the relief prayed for. 2. The plea does not contain the statements of facts, and the averments necessary to a good plea in bar. 3. The plea is not accompanied by such an answer as the rules of equity require to support such a plea, and to give to the plaintiff the benefit of the material facts charged in the bill in avoidance of the plea.

The plea commences with relating that in the year 1642, a station was erected and fixed at a point then taken and believed to be on the true boundary line between the two States. So mere a story as this would be thought too loose and light for the use of a common annalist, Here your honors have the real and only whose work is very unlike that of a special question between the parties upon the merits pleader. A station was taken, it is said, and of the cause under the charters. That question we are left to conjecture that it was erected by (as first raised by Massachusetts committee of one Woodward and one Saffrey, by its being 1791, and never before) is, whether the first called the Woodward and Saffrey Station; who charter granted to Massachusetts, by King in another place are called skillful and approved Charles I., in 1629, by the name "Charles River," artists. But the Massachusetts historian, Dr. meant Charles River proper, as it was then Douglass, tells us that they were two illiterate and ever since has been known and called; or, and obscure sailors, and would never have been besides this, meant also Jack's Pasture, or Mill heard of but for the controversies between Brook, running from near a large chestnut tree Massachusetts and Connecticut and Rhode Isinto a pond called Whiting's Pond, two and a land. There is no report or statement from half miles off from Charles River, meant also Woodward and Saffrey themselves of their dothe said Whiting's Pond; and, moreover, an-ings, and no record of any. The plea says that other brook running out of the pond, and final- the station then set up was believed to be on the ly getting into Charles River. This, I repeat, true line. This mode of expression would hardis the only question upon the merits, as the ly have been used if any actual survey had been defendant himself has made it. If the defend-made, and the real charter line ascertained by ant is willing to have a trial upon the merits, actual measurement. The plea avoids stating let him put them in issue, or allow us to put that Woodward and Saffrey were employed by them in issue. Both parties would then have Massachusetts, or authorized by anybody. If an opportunity to produce their evidence ap- they acted under the orders of the Massachu plicable to that question. Among other evi-setts government-which I do not doubt; it dence, we have in our possession certified they acted at all; which I do doubt, be copies of a large number of original grants, from 1659 to 1698, to individuals, of lands, bounded, some on Charles River, and some on Mill Brook, or Jack's Pasture Brook; all of them showing that the river and brook were never confounded together, but were always distinguished by the same separate names they now are. We have also much other material evidence upon that question of the merits. But your honors cannot now hear any of it, because that question is not in issue, or on trial. The defendant virtually acknowledges the original title of Rhode Island, by setting

cause I see no reason for believing it then, what was done was the ex-parte act of Massachusetts, and not binding upon anybody. It is not pretended that any notice was taken of Rhode Island in what was done. Indeed, it was only about six years before that date that Roger William and his companions, having been exiled from Massachusetts for conscience sake, took refuge in Providence. It is a matter of history that neither Rhode Island, Connecticut, New Hampshire, Maine or Plymouth, were acknowledged by Massachusetts, at that day, as possessing any power independent of

herself. At that early period, she assumed to be mistress over all the surrounding territories, and she drew her lines and erected her stations as she pleased, without consulting her feeble neighbors, and in defiance of them. And that she most wantonly encroached upon them all, 233*] is a matter not only of history, but of Judicial record. It seems to me that the defendant can add no strength to his plea in bar by basing it upon his own ex-parte act, and insisting upon that act as the source and foundation of all the subsequent proceedings which he sets up as matters in bar to a claim founded upon his own charter as well as upon

the charter of a sister State.

The plea proceeds to state that, by virtue of an Act of the General Assembly of Rhode Island, passed the 30th of July, 1709, Major Joseph Jenckes was appointed to meet Colonel Dudley, who was appointed by Massachusetts, and to settle the misunderstanding about the line, etc.: "provided it be within six months after passing of the act of the said Assembly;" that "said Jenckes and Dudley, on the 19th day of January, then next ensuing, and within six months from the passing of said act," did meet and conclude the following agreement, etc. Here is an error in the reckoning of time apparent on the paper. The recited agreement is dated, "Roxbury, January 19th. 17101711," which was eighteen months instead of six months, after the passing of the act referred to. The mistake of defendant probably arose from not noticing the double dating practiced at that day, and including both the old and the new style. By the old style the year commenced and ended on the 25th of March. So that the same month of January, which was part of the year 1710, by the old style, was the commencement of the year 1711, by the new. But, take it either way, the month of July, 1709, was eighteen months prior to the date of the instrument. This being the case, the agreement of Jenckes and Dudley was null and void: Jenckes' authority to act having expired a year before he did act.

the line east and west, or erect a monument from which the line might be run. But the committee performed no part of this duty, and took no single step by which the object of their appointment could be effected. They [*234 took no view of Charles River, made no survey or measurement, nor any attempt to ascertain the charter line. On the contrary, Jenckes went to Roxbury, two miles out of Boston, and thirty or forty miles from the place where his business called him; and there, at the door of Governor Dudley, they debated the challenges, as they call it. This is easily accounted for, and can be accounted for in one way only. The two committees and their respective colonies were very differently situated. It was plainly for the interest of Rhode Island to have the true charter line ascertained and established, and not to be tied down to the ex-parte doings of Massachusetts. But Massachusetts had already carved for herself, and was desirous only of keeping what she had taken; and it was, therefore, the purpose of Dudley, her commissioner and governor, to draw Jenckes away from Charles River, and to avoid having any inspection or actual survey taken, by which, at the same time that the true charter line was ascertained, it would be made to appear that Massachusetts had encroached largely upon Rhode Island. And Dudley gained his point, and brought Jenckes to join with him in saying and agreeing that "the stake set up by Nathaniel Woodward and Solomon Saffrey, skillful and approved artists, in 1642, and since often renewed, etc., being three English miles distant from Charles River, agreeably to the letters patent for the Massachusetts Province, etc., should be the commencement of the line, etc." Can it be doubted who dictated this instrument, and who drew it? These representations of the doings of Massachusetts agents were palpably made by Dudley, the then Massachusetts agent, to Jenckes. Jenckes did not know that there ever were such men as Nathaniel Woodward or Solomon Saffrey, or that they were skillful and approved artists; or that they ever set up any stake anywhere; or that it had been often or ever renewed. He did not even know that any such stake then existed, much less that it was three English miles, and no more, from Charles River. Yet, all this, Dudley induced him to subscribe to. If it was allowable here, we could show that the very same language used in this report about Woodward and Saffrey, and their skill, and their station, etc., etc., was Dudley's language, used in a communication from him made four years before. And the very truth is, that Jenckes' appointment was procured by Dudley himself, as appears by the vote itself, passed by the General It is stated that the committee met at Rox- Assembly in July, and referred to at the combury, and then and there debated the chal-mencement of this plea, as giving Jenckes aulenges concerning the several charters, etc., relating to the line between the two colonies. This reference to the charters makes them part of the instrument as much as if they had been annexed to it. Now, by the Massachusetts charter, her southern boundary line was to be three English miles south of the most southerly part of Charles River. Thus, the plain duty of the committee was to go to Charles River, ascertain the most southerly part of it, measure off the three miles south, and thence run

The case would have been altered had the two governments afterwards confirmed the instrument. But no such thing was done by either government, and is not alleged to have been. This instrument, therefore, is no bar to the bill.

But, as every subsequent proceeding set up in the plea is therein averred to have been based upon this Roxbury agreement, and taken in pursuance of it; and as it is from and under and by virtue of this agreement that defendant claims to have held possession; I will, with permission, make some remarks upon it, for the purpose of showing its character, and the manner in which it was obtained.

thority to act. Which vote recites, that, "Whereas, the Assembly has been credibly informed that His Excellency Colonel Dudley has declared that if Major Joseph Jenckes was empowered thereto, he doubted not but that they two should settle," etc., etc. The General Assembly did not foresee the use that Colonel Dudley was to make of his Major Jenckes.

I do not forget that we are now trying the suf ficiency, and not the truth of defendant's plea. But the averments in the plea cannot cover or

vote, passed June 17th, 1718, expressly disowned the Roxbury doings, and gave its committee unrestricted power to settle the line, as near as might be, according to the charter; and the Massachusetts Legislature, by its second vote, gave the same power to her committee. And thus the Roxbury agreement, which was void in itself from the beginning, was abandoned by both parties.

The Rehoboth agreement (as it is called, from the place where it was made) is in eight and a half lines, with a preamble; and the whole of it is, that the line should be run from the Woodward and Saffrey stake, so as to be at Connecticut River two and a half miles south of a due west line. This agreement is liable to some of the same material objections that have been made to the Roxbury agreement. The committee paid no regard to the charters, nor made any attempt to ascertain the true charter line. They arbitrarily adopted the pretended Woodward and Saffrey stake, wherever it might be, without knowing that there was any such stake, or going to see either that or Charles River. The plea then alleges that the General Assembly of Rhode Island accepted this Rehoboth agreement, and ordered it to be recorded; and thereby ratified and confirmed it. I will consider, presently, what kind of ratification this was.

protect such marks or evidences of mistake, | first votes, did restrict their respective [*236 misconduct, undue influence, etc., etc., as ap- committees to the Roxbury agreement. But pear upon the face of the instrument the Rhode Island Legislature, by its subsequent 235] itself, pleaded in bar; for these go to show the invalidity of the bar. There are other such marks on this instrument. The line, it says, is to be run "as is deciphered in a plan or tract by Nathaniel Woodward and Solomon Saffrey, now shown to us, and is now remaining on record in the Massachusetts government.' It is a trifling circumstance to remark upon; but it is now acknowledged that the plan or tract spoken of was never on record in Massachusetts, otherwise than as it was deposited in the secretary's office; and, if Dudley then had it at Roxbury, it was not then remaining on record. But what had Jenckes to do with this ex-parte plan, any more than with the ex-parte station of Woodward and Saffrey, of neither of which had he any knowledge beyond the mere assertion of the adverse party? And let me ask, why was not that plan or tract, or a copy of it, annexed to the instrument of which it was made a part, and which, without it, was a nullity, and could not be carried into effect, any more than a bill of sale of certain articles enumerated in an inventory not annexed or identified? And where is that pretended plan now, that it is not produced here? The counsel says that it is on record, or on file; and will be produced on proper occasion. And is not this the proper occasion, when the valid ity of the instrument, of which the plan is made part, is on trial; and that instrument cannot be understood without the plan it refers to and rests upon? The counsel have procured and produced a recent plat to show the importance of Mill Brook. Can it be believed that the pretended Woodward and Saffrey plan would not be produced, if anything favorable was found in it? I have no doubt that there was, at some time or other, and now is, a scrawl of some kind, which has been called the Woodward and Saffrey plan or tract. But I am confident that, whenever it makes its appearance, it will be seen that the person or persons who made it, whether Woodward and Saf-ward and Solomon Saffrey," etc., etc. This was frey, or somebody else long afterwards, were grossly ignorant; and no glimpse of light can be obtained from it to aid in ascertaining the line between the parties.

The plea now introduces the last instrument upon which it relies, and which has been called the report of the running committee. That committee consisted of four persons, who say, in their report, that they were appointed by the Rehoboth committee to run the line by them agreed upon. This is the only evidence there is of their appointment by anybody. The Rehoboth report speaks of no such committee and none such was appointed by either colony. Whatever their authority was, they undertook to run a line, and say in their report of it, that "having met at the stake of Nathaniel Wood

speaking loosely. The stake set up by Woodward and Saffrey in 1642 (if ever set up), certainly was not in existence in 1719. Their meaning probably was that the stake they met Lastly, the committee agree that persons at was where the Woodward and Saffrey stake should be appointed by the governor and coun- had been. But how did they know this, and cil of each State, to show the ancient line, etc. what authority had they for saying it? No Here we see Governor Dudley again. Massa- doubt there was a stake where they met, for chusetts had, and still has, a distinct political they would not have been carried there withbody, so entitled, and with the power of ap-out a stake for them to start from. But who pointment; but there was no such body in Rhode Island. Jenckes knew this, and yet he repeated after Dudley whatever was dictated to him. But no such committee was ever appointed by either government, and is not alleged to have been.

Next, the plea recites parts of votes passed by the two legislatures, in 1717 and 1718, appointing another committee to settle the line, and then sets out the agreement made by these committees at Rehoboth, October 22nd, 1718. And the plea avers that those committees were appointed, and the agreement made "in pursuance of" the Roxbury agreement of 1710, 1711, which I have just been examining.

It appears that both legislatures, by their

set up that stake, and where was it set up? Neither the Roxbury committee of 1710, 1711, nor the Rehoboth committee of 1718, set up any stake or monument. They only speak of a stake said to have been set up by Nathaniel Woodward and Solomon Saffrey in 1642, and since often renewed, in latitude forty-one degrees fifty-five minutes (says the first committee), but they saw no such stake, nor knew that any such existed. Thus this running committee had nothing to go by. They had not the plan or tract of Woodward and Saffrey, nor did they take the latitude forty-one degrees fifty-five minutes, on which the Roxbury report said the Woodward and Saffrey stake was set up; for that latitude would, in fact, have car

in bar, viz., that made at Roxbury in 1710, | fact. No fact charged, however important, 1711, and that at Rehoboth in 1718, the bill could be put in issue under it. Yet that is the charges that the Rhode Island committees who whole object of averments in the plea; which signed those instruments were misled by rep-are therefore required to be direct and positive, resentations made to them by the Massachu- not evasive, or by way of opinion, inference, or setts committees, and acted under the mistaken implication, which it is the province of the belief that the pretended Woodward and Saffrey court to deal with, not the party. Station was really on the true charter line, and was no more than three English miles from the most southerly part of Charles River, and that under this erroneous belief they signed the agreements, which, if confirmed, would transfer to Massachusetts a large portion of territory justly belonging to Rhode Island, and the jurisdiction over it. This is the general charge; and in support and proof of it, the bill charges the following facts, viz., that by actual survey and measurement, it is proved that the line alleged to have been run according to those agreements is near eight miles, instead of three miles, distant from the most southerly part of Charles River, and takes from Rhode Island a tract of territory four miles and fifty-six rods wide on the east, and over five miles on the west end, and in length, twenty-three miles; that said line does not conform to the line designated in either of said agreements, it being in latitude forty-two degrees three minutes N., whereas the supposed Woodward and Saffrey Station is alleged to have been in latitude forty-one degrees fifty-five minutes; that neither of said committees made any survey or measurement, nor any attempt to ascertain the true charter line; that, at the dates of said agreements, there was no such station as the pretended Woodward and Saffrey Station, nor any evidence that there ever had been any; that said committees saw no such station, and took no step to ascertain whether there then was or ever had been any, or how far it was from Charles River, if it did exist.

80.

The bill also charges that the Legislature of Rhode Island was deceived, and led to believe that its committees had ascertained the true charter line; that there really was such a station as the Woodward and Saffrey Station, and that it was on the true line, and no more than three miles from Charles River. This charge is most important, because the Legislature, if it had not itself been deceived, could have corrected the errors of its committees. Now, there is not a word in the plea or answer that in any way meets, much less negatives, this main charge; which goes to the roots of the pretended agreements. And the defendant might as well have put no averments at all into his plea, and accompanied it with no answer; and still have insisted upon having the pretended agreements sanctioned and allowed to be valid, without any examination whatever. Will equity countenance any such practice? It is observable that the Roxbury agreement is so framed, and contains such statements, as could not fail to mislead and deceive the General Assembly of Rhode Island. The committee professed to go by the charters and letters patent of the two colonies, as the Legislature of Rhode Island expected they would, and supposed they had done. The committee then adopt the supposed Woodward and Saffrey stake, "being (they say) three English miles distant from the southernmost part of Charles River, agreeably to the letters patent for the Massachusetts Province." It cannot be averred here that Governor Dudley had no hand in making this representation. And how was it possible for the Legislature of Rhode Island to avoid being deceived by this representation.

It was the duty of the plea to have met and negatived the main charge by direct and positive averments; but there is no such averment to be found in the plea. The principal aver- So much for the averments in the plea. And ment is that there was no covin, fraud, or mis- now for the accompanying answer-if that can representation. The bill does not charge covin be called an answer which is a mere repetition or fraud, although it might justly have done of the averments in the plea, without the The averment of no misrepresentation is slightest addition to them. Can such an anevasive, and no direct negative; for the defend-swer be said to support the plea, as the rule in ant might admit that such representations were made as the bill charges, and yet might consistently aver that no misrepresentations were made, for he might say they were true. But it is of little importance from what source the committees received their impressions; it is enough that the bill charges that they acted under an erroneous belief, and this charge is not touched by any of the averments. The other averments are that the whole merits of the plaintiff's claim were heard and decided upon by the committees: that the agreements were fair, legal, and binding, and made with a full and equal knowledge of all circumstances by 240*] both parties. All the first part of this is mere opinion and assertion. A man charged with a breach of contract might as well reply that he was an honest man, and a man of fair standing. The sweeping allegation that the agreements were made with a full and equal knowledge of all circumstances, has none of the qualities of an averment required in pleading. It is no traverse of any specific charge or

equity requires that it should? But, to support the plea is not the only office of the answer. It must meet and respond, particularly and specifically, to every fact and equitable circumstance charged in the bill, in proof of the main charge in avoidance as the bar matter pleaded; to the end that the plaintiff may have the benefit, and avail himself of his equitable defense against the bar. If the answer cannot do this with truth or safety, then the plea is not only a defective and insufficient one, but is an improper plea to be used. May I not [*241 correctly say that this plea is not supported by such an answer as the rules of equity require, and without which the plea cannot be sustained?

Again, the bill charges that the agreements now set up were never consented to by the King of England; without which, at that day, the colonies had no power to make any compact affecting their territories or jurisdiction. This being the case, it was as necessary for the plea to show the authority of the two colonies to