in regard to this line; and was settled by agree- | ent, also, that Woodward and Saffrey had, in ments or treaties of compromise, in 1710, 1718,

1719.

The bill distinctly alleges:
1st. A dispute or controversy.

2d. A commission to settle the controversy, commonly called the Roxbury Commission.

3d. An unlimited authority to the commissioners of each colony by the Legislature of each colony, to ascertain and settle the line.

4th. An actual settlement by an agreement, signed and sealed by the commissioners, so far as to fix a point of beginning; and to establish Woodward and Saffrey's monument as such point.

5th. That this settlement was a compromise; Massachusetts yielding one mile of soil in fee, and Rhode Island withdrawing all claim to jurisdiction over the disputed territory.

their proceedings, determined that the head waters were part of the river; they had set up their stake accordingly, and when the Massachusetts commissioners affirmed that it was in the right place, they only affirmed that the head waters were part of the river; and when the Rhode Island commissioners relied on said affirmation, and believed it to be true, they believed the same fact.

It is observable, that the bill nowhere declares that the representation so made by the Massachusetts commissioners was wilfully false, or was intended to deceive, or that the Rhode Island commissioners acted or believed in consequence of such representation. These material allegations are carefully avoided.

It does not appear that the Rhode Island colony intended to settle the line according to the charter, without variation; but, on the contrary, that the commission was to "revise and compromise." It is not averred [*246 that the Rhode Island commissioners intended to conform to the charter; but, on the contrary, it appears they were disposed to make an amicable settlement, and to take, in fee-simple, an equivalent for territorial jurisdiction.

And the bill further admits a second commission, arbitrament, and award, or, more properly, a treaty; commonly called the Rehoboth Agreement, by which other commissioners were appointed, with unlimited powers, to agree and settle the line "in the best manner they could;" and an agreement as before under seal, varying in some degree from the former, but precise, exact, and particular, and a subsequent running of the line accordingly, upon the earth's surface, being the line which, from that time to this, has been the actual dividing line between the two parties; and which the plaintiff now seeks to disturb. Having thus introduced the defendant's title into her bill, the plaintiff seeks to avoid it by several allegations. It is suggested not to have been within the legiti-sioners, what is its equitable effect? "It must mate power of the colonies to make an agreement of boundary. To this, the case of Penn v. Lord Baltimore, 1 Ves. 444, is a sufficient an

swer.

245*] *The most material allegation is, that the agreement or treaty was the effect of a mistake. This mistake is thus stated:

The Massachusetts commissioners represented to the Rhode Island commissioners that Woodward and Saffrey were skillful and approved artists, and in 1642 had ascertained the point or place three miles south of Charles River, or of any and every part thereof, and had there set up a stake; and the Rhode Island commissioners, relying on said representations, and believing them to be true, and verily believing the said point or place to have been correctly ascertained, and the said place where the said stake was alleged to have been set up as aforesaid to have been three English miles from Charles River and no more, the commissioners signed and sealed the agreement, which established the line of boundary.

To this the respondent replies that it is the true character of this transaction, and not the name given to it in the plaintiff's bill, that is to lay the foundation for annulling an agreement otherwise binding upon the contracting parties.

The facts alleged are admitted by the demurrer; but whether they are to be called, or whether they amount to a mistake, is conclusion of law to be determined by the court.

Now, it is certain that to settle the boundary according to those charters, the commissioners must first have decided whether the head waters were a part of Charles River. It is appar

It is thus plain, on the averments of the bill, that what the plaintiff has been pleased to term mistake was knowledge, compromise, reasonable concession, and judicious settlement.

All the subsequent proceedings having reference to this depend on the same facts, and are not materially varied by the form of the bill. But if this was a mistake by these commis

not be understood that in equity every kind of mistake is relievable, for though equity will relieve against a plain mistake, or misapprehension, or ignorance of title, yet equity will not interpose if the fact is doubtful, or, at the time of the contract, equally unknown to both parties; or if there has been a long acquiescence under the mistake, and neither party aware of it." Fonblanque, Vol. I. p. 116, note to book I. ch. 2, sec. 7.

It appears by the bill that Rhode Island reposed under this mistake for forty years without discovering her wrongs.

But this agreement and the subsequent ones are treaties. Ward's Law of Nations, ch. 15, p. 139; Vattel, ch. 12, p. 192, sec. 154.

"They are of a class of contracts which are never void for the mistake of the negotiators." Ib. 193, sec. 157, 158. See cases cited to this point when this case was last before court. 14 Peters, 210.

There can be found few cases where the negotiators of a treaty of boundary are supposed to have made a mistake; and none, it is believed, where for any such cause the provi sions of a treaty were ever deemed to be, or ever were suggested by diplomatists to be void.

It is part of the law of nations that a treaty once made is irremediably conclusive. And the reason is that it can be inquired about and explained only by itself. The peace of the world demands that it be an eternal estoppel between the parties.

The boundary of the United States, by the Treaty of Paris, of 1783; the designa- [247 tion of the River St. Croix, by commissioners under the Treaty of London, commonly called

Jay's Treaty; and the results of the commission under the 4th article of the Treaty of Ghent, are all suspected, with more reason than the ancient treaty line of these colonies, to have been settled by mistake; but who ever was guilty of the gigantic heresy of maintaining that a mistake could be inquired about in these national compacts, or that the discovery of the ignorance of the negotiators would nullify the

contract?

The bill shows an undisturbed possession by Massachusetts for one hundred and thirteen years, under claim of title.

The controlling power of time is a part of the law of this case, and reference is made to the authorities cited at the former hearing.

In addition to these, there is now presented to this court the written autographic opinion of Lord Mansfield, when Attorney-General of England, in the year 1754, on the subject of this very boundary, in which the eminent jurist declares that "if the king approves the agreement, it is now too late for the parties to dispute it." 4th vol. Trumbull's MS. papers, Mass. His. Soc. Library.

She was too weak, or too feeble, or too poor, it may seem by the bill; and although we would not hear her enemy say this, yet, if it be admitted by demurrer, it is mere admission by form; for she never wanted the intellectual or moral qualities which such an exigency demanded.

But the admission of her distress may be safely made. It is as inoperative in law as it is incredible in fact. Distress and embarrassment are no bars to the operation of time Hovenden v. Lord Annesly, 2 Scho. & Lef. 632

It remains only to inquire if the objections thus fatal on the face of the bill may be taken advantage of by demurrer. To this point the court is referred to the following cases: Mitford's Pleading, 99, 100, 102, 144, of the English edition; Kuypers v. Reformed Dutch Church, 6 Paige, 570; Humbert v. Trinity Church, 7 Paige, 195; Utterron v. Mair, 2 Ves. Jun. 95; Brooke v. Hewitt, 3 Ves. Jun. 253; Hardy v. Reeves, 4 Ves. Jun. 476. This case was reviewed and confirmed in Hovenden V. Lord Annesly, 2 Sch. & Lefroy, 632; and the opinion of the Lord Chancellor, 637, especially noticed. Hodley v. Healey, 1 Ves. & Beames, 536; Brooks v. Gibbons, 4 Paige N. Y. Rep. 374; 1 Jacobs & Walker, 195.

*Mr. Wipple, for the complainants, [*249 with whom was Mr. Randolph:

The object of the plaintiff's bill is to obtain possession of jurisdiction over a territory about four and a half miles wide, north and south, by about twenty miles long, east and west. This territory constitutes, we say, the northern border, of Rhode Island, and is included in the charter granted to Rhode Island by the crown of England.

Possession alone, it is respectfully contended, in a case of this kind, uninterrupted and exclusive for more than a century, is not only a good title, but the best of all possible titles. No other title gives, or was ever pretended to give, any right to the British crown to make conveyance of land or empire, jurisdiction or sovereignty in this new world. By discovery or by conquest, possession was obtained, and hence possession became ultimate right. When this possession was parted with, the right was lost, at least in effect against all the rest of mankind but the royal authority. Now, this possession was lost to the crown, and was On the contrary, it is contended by Massagained by Massachusetts before the Colony of chusetts, that this territory constitutes her Rhode Island was planted, or her charter drawn southern border, and is included in her charter. upon parchment. It is against, therefore, her The object of the controversy, therefore, is to own possession, or the possession of her grant-settle the dividing line between two coterminor, forever, that the plaintiff demands title.

It has been suggested that it is not against claim of possession. To this it is submitted that no claim of possession can ever be admitted or considered in a court of equity, but that claim that is made in conformity to judicial proceedings. While this principle 248*] *is universally true, it derives additional force from the fact that there always was a paramount power capable of redressing the injuries of the plaintiff, if at any time such injuries have been made known.

From 1740 to 1776 there was a regular appeal allowed to the King in Council. From the adoption of the confederation until the existence of the Constitution of the United States, authority to redress such injury vested in Congress. From that time to the present, this high court has been the arbiter of international controversies between the States of the Union. The bill admits that no judicial effort has been made to bring the dispute to an issue. Occasionally, indeed, Rhode Island has complained. Once in about every thirty-five or forty years; that is, once in every generation of statesmen, of which her soil has been prolific, she moaned over the loss of a right which she never possessed; but her murmurs never reached the temple of the law, and never were serious enough or loud enough for that purpose.

ous States, so far as it involves the rights of the parties to jurisdiction. The right to the soil is not in dispute.

Massachusetts has demurred to the whole of the plaintiff's bill; and the question is, whether, taking the case as it is presented by that bill, Rhode Island is entitled to relief. The first and most obvious inquiry, therefore, is, what are the facts set forth in the bill?

The leading and prominent facts are, 1st. The charters of the crown to the two States of Massachusetts and Rhode Island. By the Massachusetts charter, her southern line, or boundary, is declared to be "within the space of three English myles on the south parte of the saide river called Charles River, or of any, or every parte thereof." The northern boundary, or line, of Rhode Island, is declared by her charter to be, "And from thence by a straight line, drawn due north until it meets the south line of the Massachusetts Colony; and on the north, or northerly, by the aforesaid south, or southerly, line of Massachusetts."

By the Massachusetts charter, dated in 1629, the said Henry Rosswell et al. are created "A corporation by the name of the Governor and Company of Massachusetts Bay;" "which said officers shall apply themselves to take care for the best disposing and ordering of the general business and affairs of, for, and concerning the

same.

said lands and premises hereby mentioned to be, chusetts officers, who were to be chosen by granted, and the plantation thereof, and the Massachusetts freemen in a certain mode; that government of the people thereof." It then the power to legislate south of that line was provides for four meetings of the general court delegated by the Rhode Island charter to Rhode each year, and authorized them "To make laws Island officers to be chosen by Rhode Island and ordinances for the good and welfare of said freemen in a different mode; that both these 250*] company, and for the government and powers were entire powers, to be exercised by ordering of the said lands and plantations, each in the mode, by the officers chosen, and at and the people inhabiting, and to inhabit the the times specified in the respective charters; that Massachusetts must exercise the powers over the lands and all the lands specified in her charter; that Rhode Island was subject to the same rule; that, consequently, it was not competent for either Massachusetts or Rhode Island, by any agreement (not ratified by the crown) to vary those powers, or to enlarge or lessen the territory over which they were to be exercised; that in this respect they were like all other corporations, and like most other colonial governments; that the right to legislate was in the crown, the temporary exercise of it, alone, was in the colonies; and this exercise might be terminated at the pleasure of the crown.

The same emphatic language is used in the Rhode Island charter. It creates the freemen of Rhode Island a corporation with perpetual succession; prescribes the times and mode of choosing the Governor and members of the Legislative Assembly; and authorizes the Assembly "from time to time to make, ordain, etc., such laws, etc., for the government of the lands hereinafter granted, and for the government of the people who now inhabit, or may hereafter inhabit the same." "To establish courts to settle matters within the said colony." Both charters, in their grants of legislative, executive, and judicial powers, closely and cautiously limit the exercise of those powers There was not only no authority in the char"to the said lands hereby granted." The pow-ters of either of these colonies to delegate any ers themselves differ very materially as to their portion of their derivative powers; but there is extent. The powers granted to Massachusetts, an implied if not a positive prohibition against and none other, by the very terms of the Mas- it, for in "all mattters of public controversy sachusetts charter are, to be exercised within which may fall out between our colony of "the said lands," described in the Massachu- Providence Plantations, and the rest of our setts charter, and by officers chosen by the colonies in New England, it shall and may be freemen of Massachusetts. The powers granted | lawful to make their appeal to us in England.” to Rhode Island, and none other, by the very No subject can be considered of “public conterms of the Rhode Island charter, are to be troversy" with more propriety than a dispute exercised within "the said lands hereinafter between two colonies in regard to their boundmentioned," and by officers chosen by the free- aries. Indeed, it is impossible to reconcile the men of Rhode Island. "And, further, our will studied and cautious limitation of the powers and pleasure is, that in all matters of public granted, even down to those almost of [*252 controversy which may fall out between our a police nature, with the supposition of a powcolony of Providence Plantations, and the rest er to cede any portion of their territories. of our colonies in New England, it shall and There was a double incapacity. Rhode Island may be lawful to and for our said colony of was incompetent to sell, and Massachusetts inProvidence Plantations, to make their appeals competent to purchase territory, the jurisdictherein to us, our heirs and successors, for the tion over which was exclusively in the crown. redress of their grievances, in England." It would be a startling proposition that Jamaica could cede to Bermuda the jurisdiction over a part of her island. Even the compromise of a disputed line would derive all its validity from the express or implied ratification of the crown. From these charters, then, we arm ourselves with the following facts to start with:

By these charters the following important facts are established:

1st. That the first settlers of Massachusetts and Rhode Island were not independent in dividuals, tribes, or communities, who took possession by conquest or otherwise for themselves, over their respective territories, claiming and acquiring an original and inherent power of legislation therein; a power which they could consequently transfer to each other or to any third person or community.

1st. That Massachusetts and Rhode Island, from the date of their charters, 1628 and 1663, down to 1775, were not sovereign independent States, but political corporations, possessed, as trustees for the people, and by grant from the crown of England, of jurisdiction over certain specified limits.

2d. That neither of the charters contained any authority to delegate this jurisdiction, or any portion of it, nor any authority to acquire jurisdiction over any other lands than those specified in their charters.

2d. They took possession as subjects of the crown of England, of a portion of a country 251*] claimed to have been discovered by *England; they took possession for and under the crown of England; that all the powers of legislation which they ever claimed, or exercised, was by express grants from the crown; that by accepting these grants they acknowledged the power of legislation to be in the crown; that to Massachusetts was granted the power to legislate over lands as far south as "three miles south of Charles River, and of any and every part thereof;" that to Rhode Island was granted the power to legislate as far north as the southernmost line of Massachusetts; that the power to legislate north of that line was delegated by the Massachusetts charter to Massa-sent of the crown.

3d. That as these charters limit the south line of Massachusetts to "three miles south of Charles River, and of any and every part thereof," and grant to Rhode Island jurisdiction up to that line; that Rhode Island is still entitled to that line, unless it appears upon the face of this bill that it has been expressly ceded to Massachusetts by the crown of England, or by Rhode Island, with the express or implied as

the distance of three miles south of Charles | miles south of Charles River; and that the River, but adhered to the line established four miles farther south by the agreements of 1710 and 1718.

The third line was run by the Rhode Island commissioners alone (the Massachusetts commissioners having declined any agency in it), in 1750, and not only its termination at the west end, but its commencement at the east 3. She admits that these agreements were 256*] end, was between four and five miles never ratified by the crown of England; that farther north than the two former lines. It is the mistake was not discovered by Rhode Isalleged in the bill that Rhode Island first dis- land until 1749, or 1750, when her commissioncovered that the Woodward and Saffrey stationers ran a line three miles south of Charles Rivwas over seven miles south of Charles River, in 1749, or 1750, when this last line was run.