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known by the name of Mill River, or brook), 1 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 de. selves 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 bound. I will now proceed to consider the question aries, hy rivers, between nations and States, of the sufficiency of the defendant's plea as a and even counties. If the Mississippi should bar. be so measured, it would be a wonderful river This plea is in bar to the whole bill. to behold; and many a great State, and parts The requisites of such a plea being familiar of States, would disappear from the map of the to the court, we have only to inquire whether United States. But the Missouri is not the the present plea possesses those requisites. Our Mississippi, nor part of the Mississippi, until it objections to it, I will endeavor to bring under joins it; and if a State should be bounded on a one or other of the following heads: 1. The line to be run twenty miles distant from the matter of the plea does not constitute a bar to Mississippi, nobody would dream of measuring the relief prayed for. 2. The plea does not conthe twenty miles from the Missouri as part of tain the statements of facts, and the averments the Mississippi. When two rivers, or streams, necessary to a good plea in bar. 3. The plea come together and form one river, which keeps is not accompanied by such an answer as the the name of one of the branches, that name can rules of equity require to support such a plea, never be understood to comprehend the other and to give to the plaintiff the benefit of the branch, having a distinct name of its own. If, material facts charged in the bill in avoidance therefore, this Mill Brook, instead of being a of the plea. mere streainlet creeping into Charles River, was The plea commences with relating that in the really a principal branch of Charles River, hav. year 1642, a station was erected and fixed at a ing its own proper name; neither that name point then taken and believed to be on the true nor the brook could ever be confounded with boundary line between the two States. So the river or its name, until they were swal. mere a story as this would be thought too loose lowed up in the main river.
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 merit's 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 defendmade, 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 hy them in issue. Both parties would then have Massachusetts, or authorized by anybody. li an opportunity to produce their evidence ap- they acted under the orders of the Massachuplicable to that question. Among other evi setts government—which I do not doubt; ir dence, we have in our possession certified they acted at all; which I do doubt, be. copies of a large number of original grants, cause I see no reason for believing it—then, from 1659 to 1698, to individuals, of lands, what was done was the ex-parte act of Massabounded, some on Charles River, and some on chusetts, and not binding upon anybody. It is Mill Brook, or Jack's Pasture Brook; all of not pretended that any notice was taken of them showing that the river and brook were Rhode Island in what was done. Indeed, it never confounded together, but were always was only about six years before that date that distinguished by the same separate names they Roger William and his companions, having now are. We have also much other material been exiled from Massachusetts for conscience evidence upon that question of the merits. sake, took refuge in Providence. It is a matter But your honors cannot now hear any of it, of history that neither Rhode Island, Connecbecause that question is not in issue, or on ticut, New Hampshire, Maine or Plymouth, trial. The defendant virtually acknowledges were acknowledged by Massachusetts, at that the original title of Rhode Island, by setting | day, as possessing any power independent of
herself. At that early period, she assumed to the line east and west, or erect a monument bo mistress over all the surrounding territories, from which the line might be run. But the and she drew her lines and erected her stations committee performed no part of this duty, and as she pleased, without consulting her feeble took no single step by which the object of their neighbors, and in defiance of them. And that appointment could be effected. "They [*284 she most wantonly encroached upon them all, took no view of Charles River, made no sur233*] is a matter *not only of history, but of vey or measurement, nor any attempt to ascer. jadicial record. It seems to me that the detain the charter line. On the contrary, Jenckes fendant can add no strength to his plea in bar went to Roxbury, two miles out of Boston, and by basing it upon his own ex-parte act, and thirty or forty miles from the place where his insisting upon that act as the source and business called him; and there, at the door of foundation of all the subsequent proceedings Governor Dudley, they debated the challenges, which he sets up as matters in bar to a claim as they call it. This is easily accounted for, founded upon his own charter as well as upon and can be accounted for in one way only. the charter of a sister State.
The two committees and their respective colThe plea proceeds to state that, by virtue of onies were very differently situated. It was an Act of the General Assembly of Rhode plainly for the interest of Rhode Island to have Island, passed the 30th of July, 1709, Major the true charter line ascertained and estabJoseph Jenckes was appointed to meet Colonel lished, and not to be tied down to the ex-parte Dudley, who was appointed by Massachusetts, doings of Massachusetts. But Massachusetts and to settle the misunderstanding about the had already carved for herself, and was desir. line, etc.: "provided it be within six months ous only of keeping what she had taken; and it after passing of the act of the said Assembly;" was, therefore, the purpose of Dudley, her that "said Jenckes and Dudley, on the 19th commissioner and governor, to draw Jenckes day of January, then next ensuing, and within away from Charles River, and to avoid havsix months from the passing of said act,” did ing any inspection or actual survey taken, meet and conclude the following agreement, by which, at the same time that the true char. etc. Here is an error in the reckoning of time ter line was ascertained, it would be made to apparent on the paper. The recited agreement appear that Massachusetts had encroached is dated, “Roxbury, January, 19th. 1710- largely upon Rhode Island. And Dudley 1711," which was eighteen months instead of gained his point, and brought Jenckes to join six months, after the passing of the act referred with him in saying and agreeing that "the to. The mistake of defendant probably arose stake set up by Nathaniel Woodward and Solfrom not noticing the double dating practiced omon Saffrey, skillful and approved artists, in at that day, and including both the old and the 1642, and since often renewed, etc., being three new style. By the old style the year com- English miles distant from Charles River, menced and ended on the 25th of March. So agreeably to the letters patent for the Massa that the same month of January, which was chusetts Province, etc., should be the compart of the year 1710, by the old style, was the mencement of the line, etc." Can it be doubted commencement of the year 1711, by the new. who dictated this instrument, and who drew But, take it either way, the month of July, it! These representations of the doings of 1709, was eighteen months prior to the date of Massachusetts agents were palpably made by the instrument. This being the case, the agree. Dudley, the then Massachusetts agent, to ment of Jenckes and Dudley was null and Jenckes. Jenckes did not know that there void: Jenckes' authority to act having expired ever were such men as Nathaniel Woodward a year before he did act.
or Solomon Saffrey, or that they were skillful The case would have been altered had the and approved artists; or that they ever set up two governments afterwards confirmed the in any stake anywhere; or that it had been often strument. But no such thing was done by or ever renewed. He did not even know that either government, and is not alleged to have any such stake then existed, much less that it been. This instrument, therefore, is no bar to was three English miles, and no more, from the bill.
Charles River. Yet, all this, Dudley induced But, as every subsequent proceeding set up him to subscribe to. If it was allowable here, in the plea is therein averred to have been we could show that the very same language based upon this Roxbury agreement, and taken used in this report about Woodward and Saf. in pursuance of it; and as it is from and under frey, and their skill, and their station, etc., and by virtue of this agreement that defendant etc., was Dudley's language, used in & com. claims to have held possession; I will, with munication from him made four years before. permission, make some remarks upon it, for And the very truth is, that Jenckes’ appointthe purpose of showing its character, and the ment was procured by Dudley himself, as apmanner in which it was obtained.
pears 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., thority to act. Which vote recites, that, relating to the line between the two colonies. "Whereas, the Assembly has been credibly inThis reference to the charters makes them part formed that His Excellency Colonel Dudley bas of the instrument as much as if they had been declared that if Major Joseph Jenckes was emannexed to it. Now, by the Massachusetts powered thereto, he doubted not but that they charter, her southern boundary line was to be two should settle," etc., etc. The General Ag. three English miles south of the most southerly sembly did not foresee the use that Colone) part of Charles River. Thus, the plain duty Dudley was to make of his Major Jenckes. of the committee was to go to Charles River, I do not forget that we are now trying the suf ascertain the most southerly part of it, measure ficiency, and not the truth of defendant's plea. off the three miles south, and thence run But the averments in the plea cannot cover or
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 vote, passed June 17th, 1718, expressly disshow the invalidity of the bar. There are owned the Roxbury doings, and gave its comother such marks on this instrument. The mittee unrestricted power to settle the line, as line, it says, is to be run “as is deciphered in near as might be, according to the charter; and a plan or tract by Nathaniel Woodward and the Massachusetts Legislature, by its second Solomon Saffrey, now shown to us, and is now vote, gave the same power to her committee. remaining on record in the Massachusetts gov. And thus the Roxbury agreement, which was ernment." It is a trifling circumstance to re- void in itself from the beginning, was abanmark upon; but it is now acknowledged that doned by both parties. the plan or tract spoken of was never on record The Rehoboth agreement (as it is called, in Massachusetts, otherwise than as it was de from the place where it was made) is in eight posited in the secretary's office; and, if Dudley and a half lines, with a preamble; and the then had it at Roxbury, it was not then re whole of it is, that the line should be run from maining on record. But what had Jenckes to the Woodward and Saffrey stake, so as to be at do with this ex-parte plan, any more than with Connecticut River two and a half miles south the ex-parte station of Woodward and Saffrey, of a due west line. This agreement is liable to of neither of which had he any knowledge be some of the same material objections that have yond the mere assertion of the adverse party? been made to the Roxbury agreement. The And let me ask, why was not that plan or tract, committee paid no regard to the charters, nor or a copy of it, annexed to the instrument of made any attempt to ascertain the true charter which it was made a part, and which, without line. They arbítrarily adopted the pretended it, was a nullity, and could not be carried into Woodward and Saffrey stake, wherever it might effect, any more than a bill of sale of certain be, without knowing that there was any such articles enumerated in an inventory not an- stake, or going to see either that or Charles nexed or identified? And where is that pre- River. The plea then alleges that the General tended plan now, that it is not produced here? Assembly of Rhode Island accepted this Reho. The counsel says that it is on record, or on file; both agreement, and ordered it to be recorded; and will be produced on proper occasion. And and thereby ratified and confirmed it. I will is not this the proper occasion, when the valid consider, presently, what kind of ratification ity of the instrument, of which the plan is this was. made part, is on trial; and that instrument The plea now introduces the last instrument cannot be understood without the plan it refers upon which it relies, and which has been called to and rests upon? The counsel have procured the report of the running committee. That and produced a recent plat to show the im committee consisted of four persons, who say, portance of Mill Brook. Can it be believed that in their report, that they were appointed by the the pretended Woodward and Saffrey plan Rehoboth committee to run the line by them would not be produced, if anything favorable agreed upon. This is the only evidence there was found in it? I have no doubt that there is of their appointment by anybody. The Re. was, at some time or other, and now is, a hoboth report speaks of no such committee and scrawl of some kind, which has been called the none such was appointed by either colony. Woodward and Saffrey plan or tract. But I Whatever their authority was, they undertook am confident that, whenever it makes its ap- to run a line, and say in their report of it, that pearance, it will be seen that the person or per “having met at the stake of Nathaniel Woodsons who made it, whether Woodward and Saf- ward and Solomon Saffrey,” etc., etc. This was frey, or somebody else long afterwards, were speaking loosely. The stake set up by Woodgrossly ignorant; and no glimpse of light can ward and Saffrey in 1642 (if ever set up), cerbe obtained from it to aid in ascertaining the tainly was not in existence in 1719. Their line between the parties.
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, 80 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 set up that stake, and where was it set up? Rhode Island. Jenckes knew this, and yet he Neither the Roxbury committee of 1710, 1711, repeated after Dudley whatever was dictated nor the Rehoboth committee of 1718, set up to him. But no such committee was ever ap- any stake or monument. They only speak of pointed by either government, and is not a stake said to have been set up by Nathaniel alleged to have been.
Woodward and Solomon Saffrey in 1642, and Next, the plea recites parts of votes passed since often renewed, in latitude forty-one de. by the two legislatures, în 1717 and 1718, ap- grees fifty-five minutes (says the first compointing another committee to settle the line, mittee), but they saw no such stake, nor knew and then sets out the agreement made by these that any such existed. Thus this running com. eommittees at Rehoboth, October 22nd, 1718. mittee had nothing to go by. They had not And the plea avers that those committees were the plan or tract of Woodward and Saffrey, appointed, and the agreement made “in pur. nor did they take the latitude forty-one degrees suance of the Roxbury agreement of 1710, fifty-five minutes, on which the Roxbury report 1711, which I have just been examining. said the Woodward and Saffrey stake was set
It appears that both legislatures, by their up; for that latitude would, in fact, have car.
237"] ried "them many miles off from the government, it seems that the defendant would stake where they met; which, as appears from now set up the doings of the committees, as the line described by the committee, was in i binding and absolute in themselves, without latitude forty-two degrees three minutes. By any legislative acts confirming them: thus mak. their own showing, the running committee had ing the committees independent of, and parano power to fix any station, or set up any stake mount to, the legislatures which created them. themselves. How, then, did they know that This is novel, and, I should think, dangerous the stake they saw was where the Woodward doctrine. If this is true, the moment tho and Saffrey stake had been? They could only Legislature passed a vote appointing a commit. believe from what was told them; and that in tee to perform a certain service, it parted with all probability, by persons interested, and who all power over the subject; and could neither had themselves set up the stake they wished revoke the appointment, nor vary, nor in any the line to be run from. It was the tradition way touch the powers of that committee. This in that quarter for many years and derived was not the understanding of either legislature from the old men of the day, that the pretend at the time of passing the votes and appointing ed stake was a bean pole, stuck up by John their committees, as has already been shown. Chandler, one of the running committee. At all The boundary line between Massachusetts and events, that committee had no right to hear Connecticut (which by their charters was preevidence, for they had no power to decide. cisely the same as ours) was agreed upon by a
Thus, from all that appears, there is as good joint committee in 1713; and the doings of that cause for believing that the stake from which committee were ratified and confirmed by these four men started was anywhere else as mutual acts passed by both legislatures; and it that it was at or near the place of the Wood was those legislative acts of confirmation, and ward and Saffrey stake, if there ever was any. not the report of the committee, upon which
For myself, I can see nothing in all those Massachusetts wholly relied in their subseproceedings, from beginning to end, but im- quent dispute respecting the line. And even position, and the exercise of undue influence those solemn acts of ratification were set aside over the Rhode Island committees.
for the same causes and grounds which we are The plea then alleges that the said report or presenting to the court. This, as I before return of the running committee "was approved remarked, is new ground, even for Massaby the General Assembly of the said Colony of chusetts to take. For her own committee of Rhode Island,” etc. This is copied from our 1791 (whose report, jointly with the Rhode original bill; but in the amended bill (page 36) Island committee, is copied into our bill; and those words are stricken out, being incorrect, whose separate report to their own legislature and the words, “the above return is accepted is annexed to the bill, and has already been by the Assembly: a true copy, extracted from referred to), that committee, remarking that the public records of the Colony of Rhode the proceedings of the former committees had Island, examined by T. Ward, secretary," in- not been confirmed by either government, serted. That being the minute appearing on joined with the Rhode Island committee in the document itself. I have no desire to be recommending to their respective governments critical, but it may be observed that there is no "to submit the matter in dispute to indiffervote of acceptance. A secretary or clerk can ent men of the neighboring States; or to unite only certify to a copy of a vote. He has no au in an application to Congress to settle the same, thority to certify that such or such a thing was agreeably to the respective charters, and the done, or vote passed. The record is the only Constitution of the United States." evidence of votes, and certified copies are the I have thus far endeavored to show from the evidences of the record.
plea itself that the matter contained in it does But what does it amount to, if there were not constitute a bar for the plaintiff's bill; and such a vote? It was no more than the ordinary will now, with permission, proceed to the two form on such occasions. When a legislative other general grounds of objection, which, as committee makes a report, something is to be they are closely connected, I will consider todone with it; and the usual course is to receive gether. They are, lst. That the plea does not or accept it; and then it is laid on the table, or contain the statements of facts, nor the averordered on file, or taken up and acted upon. ments necessary to a good plea in bar; and, 2d. The same course was pursued in the Legislature That it is not accompanied by such an answer of Massachusetts, as appears by the secretary's as the rules of equity require to support such a minutes, on some of the reports of their com- plea, and to give the plaintiff the benefit of the mittees. But the report so received or accepted matter charged in the bill in avoidance of the is nothing of itself, until some legislative act is plea. I wish it to be understood that we make passed upon the subject of it.
no objections to the mere form either of the But the Legislature of Rhode Island never plea or answer. Our objections are to the passed any act confirming the doings of either merits and substance of them. And we contend of those committees, or establishing either of that not a single material fact charged in the the lines (for they all differ) spoken of by bill in avoidance of the bar matter pleaded, is them. Nor did the Legislature of Massachu- negatived or met by any averment in the plea. setts ever pass any such act; and it is not al. or by *the answer. So that, as the plea (* 239 leged that she did. And, if one of the govern and answer now stand, the defendant would ments had confirmed those proceedings, by ever avail himself of his legal defense, while he 238*) 80 solemn an act of ratification, the would exclude the plaintiff from all the equi. other could take no advantage of it without table facts and circumstances charged in the passing a similar and mutual act of confirma- bill in avoidance of the bar; which, by the rules sion on her part.
of equity, a defendant is not permitted to do. But as there was no such ratification by either In avoidance of the two agreements pleaded
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 The bill also charges that the Legislature of was no more than three English miles from the Rhode Island was deceived, and led to believe most southerly part of Charles River, and that that its committees had ascertained the true under this erroneous belief they signed the charter line; that there really was such a agreements, which, if confirmed, would transfer station as the Woodward and Saffrey Station, to Massachusetts a large portion of territory and that it was on the true line, and no more justly belonging to Rhode Island, and the juris- than three miles from Charles River. This diction over it. This is the general charge; and charge is most important, because the Legis. in support and proof of it, the bill charges the lature, if it had not itself been deceived, could following facts, viz., that by actual survey and have corrected the errors of its committees. measurement, it is proved that the line alleged Now, there is not a word in the plea or answer to have been run according to those agreements that in any way meets, much less negatives, is near eight miles, instead of three miles, this main charge; which goes to the roots of distant from the most southerly part of Charles the pretended agreements. And the defendant River, and takes from Rhode Island a tract of might as well have put no averments at all into territory four miles and fifty-six rods wide on his plea, and accompanied it with no answer ; the east, and over five miles on the west end, and still have insisted upon having the preand in length, twenty-three miles; that said tended agreements sanctioned and allowed to line does not conform to the line designated in be valid, without any examination whatever. either of said agreements, it being in latitude Will equity countenance any such practice? It forty-two degrees three minutes N., whereas is observable that the Roxbury agreement is the supposed Woodward and Saffrey Station so framed, and contains such statements, as is alleged to have been in latitude forty-one de- could not fail to mislead and deceive the Gengrees fifty-five minutes; that neither of said eral Assembly of Rhode Island. The committee committees made any survey or measurement, professed to go by the charters and letters nor any attempt to ascertain the true charter patent of the two colonies, as the Legislature line; that, at the dates of said agreements, of Rhode Island expected they would, and sup. there was no such station as the pretended posed they had done. The committee then Woodward and Saffrey Station, nor any evi: adopt the supposed Woodward_and Saffrey dence that there ever had been any; that said stake, “being (they say) three English miles committees saw no such station, and took no distant from the southernmost part of Charles step to ascertain whether there then was or River, agreeably to the letters patent for the ever had been any, or how far it was from Massachusetts Province.” It cannot be averred Charles River, if it did exist.
here that Governor Dudley had no hand in It was the duty of the plea to have met and making this representation. And how was it negatived the main charge by direct and pos- possible for the Legislature of Rhode Island itive averments; but there is no such averment to avoid being deceived by this representation, 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 an. evasive, 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 equity requires that it should! But, to support made as the bill charges, and yet might con- the plea is not the only office of the answer. sistently aver that no misrepresentations were it must meet and respond, particularly and made, for he might say they were true. But it specifically, to every fact and equitable circumis of little importance from what source the stance charged in the bill, in proof of the main committees received their impressions; it is charge in avoidance as the bar matter pleaded; enough that the bill charges that they acted to the end that the plaintiff may have the under an erroneous belief, and this charge is not benefit, and avail himself of his equitable detouched by any of the averments. The other fense against the bar. If the answer cannot do averments are that the whole merits of the this with truth or safety, then the plea is not plaintiff's claim were heard and decided upon only a defective and insufficient one, but is an by the committees: that the agreements were improper plea to be *used. May I not (* 241 fair, legal, and binding, and made with a full correctly say that this plea is not supported and equal knowledge of all circumstances by by such an answer as the rules of equity re240*] both parties. All the first part of this quire, and without which the plea cannot be is mere opinion and assertion. A man charged sustained ! with a breach of contract might as well reply Again, the bill charges that the agreements that he was an honest man, and a man of fair now set up were never consented to by the King standing. The sweeping allegation that the of England; without which, at that day, the agreements were made with a full and equal colonies had no power to make any compact knowledge of all circumstances, has none of affecting their territories or jurisdiction. This the qualities of an averment required in plead-being the case, it was as necessary for the plea ing. It is no traverse of any specific charge or I to show the authority of the two colonies to iu kuo ada