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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, their proceedings, determined that the head we1719.

ters were part of the river; they had set up The bill distinctly alleges:

their stake accordingly, and when the Massa1st. A dispute or controversy.

chusetts commissioners affirmed that it was in 2d. A commission to settle the controversy, the right place, they only affirmed that the commonly called the Roxbury Commission. head waters were part of the river; and when

3d. An unlimited authority to the commis. the Rhode Island commissioners relied on said sioners of each colony by the Legislature of affirmation, and believed it to be true, they beeach colony, to ascertain and settle the line. lieved the same fact.

4th. An actual settlement by an agreement, It is observable, that the bill nowhere designed and sealed by the commissioners, so far clares that the representation so made by the as to fix a point of beginning; and to establish Massachusetts commissioners wilfully Woodward and Saffrey's monument as such false, or was intended to deceive, or that the point.

Rhode Island commissioners acted or believed 5th. That this settlement was a compromise; in consequence of such representation. These Massachusetts yielding one mile of soil in fee, material allegations are carefully avoided. and Rhode Island withdrawing all claim to ju It does not appear that the Rhode Island risdiction over the disputed territory.

colony intended to settle the line according to And the bill further admits a second com- the charter, without variation; but, on the mission, arbitrament, and award, or, more prop- contrary, that the commission was to "revise erly, a treaty; commonly called the Rehoboth and compromise.". *It is not averred (*246 Agreement, by which other commissioners were that the Rhode Island commissioners intended appointed, with unlimited powers, to agree and to conform to the charter; but, on the contrary, settle the line “in the best manner they could;" it appears they were disposed to make an ami. and an agreement as before under seal, varying cable settlement, and to take, in fee-simple, an in some degree from the former, but precise, equivalent for territorial jurisdiction. exact, and particular, and a subsequent running It is thus plain, on the averments of the bill, of the line accordingly, upon the earth's sur that what the plaintiff has been pleased to term face, being the line which, from that time to mistake was knowledge, compromise, reasonthis, has been the actual dividing line between able concession, and judicious settlement. the two parties; and which the plaintiff now All the subsequent proceedings having refer. seeks to disturb. Having thus introduced the ence to this depend on the same facts, and are defendant's title into her bill, the plaintiff not inaterially varied by the form of the bill. seeks to avoid it by several allegations. It is But if this was a mistake by these commissuggested not to have been within the legiti-sioners, what is its equitable effect? "It must mate power of the colonies to make an agree not be understood that in equity every kind of ment of boundary. To this, the case of Penn v. mistake is relievable, for though equity will reLord Baltimore, 1 Ves. 444, is a sufficient an- lieve against a plain mistake, or misapprehen

sion, or ignorance of title, yet equity will not 245*] *The most material allegation is, that interpose if the fact is doubtful, or, at the time the agreement or treaty was the effect of a of the contract, equally unknown to both par. mistake. This mistake is thus stated:

ties; or if there has been a long acquiescence The Massachusetts commissioners represented under_the mistake, and neither party aware of to the Rhode Island commissioners that Wood it.”. Fonblanque, Vol. I. p. 116, note to book ward and Saffrey were skillful and approved I. ch. 2, sec. 7. artists, and in 1642 had ascertained the point or It appears by the bill that Rhode Island re. place three miles south of Charles River, or of posed under this mistake for forty years withany and every part thereof, and had there set out discovering her wrongs. up a stake; and the Rhode Island commis But this agreement and the subsequent ones sioners, relying on said representations, and be. are treaties. Ward's Law of Nations, ch. 15, lieving them to be true, and verily believing the p. 139; Vattel, ch. 12, p. 192, sec. 154. said point or place to have been correctly ascer “They are of a class of contracts which are tained, and the said place where the said stake never void for the mistake of the negotiators." was alleged to have been set up as aforesaid to Ib. 193, sec. 157, 158. See cases cited to this have been three English miles from Charles point when this case was last before court. River and no more, the commissioners signed 14 Peters, 210. and sealed the agreement, which established There can be found few cases where the the line of boundary.

negotiators of a treaty of boundary are supTo this the respondent replies that it is the posed to have made a mistake; and none, it is true character of this transaction, and not the believed, where for any such cause the provi. name given to it in the plaintiff's bill, that is sions of a treaty were ever deemed to be, or to lay the foundation for annulling an agree cver were suggested by diplomatists to be void. ment otherwise binding upon the contracting It is part of the law of nations that a treaty parties.

once made is irremediably conclusive.

And The facts alleged are admitted by the de- the reason is that it can be inquired about and murrer; but whether they are to be called, or xplained only by itself. The peace of the whether they amount to a mistake, is i conclu- world demands that it be an eternal estoppel sion of law to be determined by the court. between the parties.

Now, it is certain that to settle the boundary The boundary of the United States, by the according to those charters, the commissioners Treaty of Paris, of 1783; the designa. (*247 must first have decided whether the head wa tion of the River St. Croix, by commissioners ters were a part of Charles River. It is appar. 1 under the Treaty of London, commonly called


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Jay's Treaty; and the results of the commis- She was too weak, or too feeble, or too poor,
sion under the 4th article of the Treaty of it may seem by the bill; and although we
Ghent, are all suspected, with more reason than would not hear her enemy say this, yet, if it be
the ancient treaty line of these colonies, to admitted by demurrer, it is mere admission by
have been settled by mistake; but who ever form; for she never wanted the intellectual or
was guilty of the gigantic heresy of maintaining moral qualities which such an exigency de-
that a mistake could be inquired about in these manded.
national compacts, or that the discovery of the But the admission of her distress may be
ignorance of the negotiators would nullify the safely made. It is as inoperative in law as it

is incredible in fact. Distress and embarrassThe bill shows an undisturbed possession by ment are no bars to the operation of time Massachusetts for one hundred and thirteen Hovenden v. Lord Annesly, 2 Scho. & Lef. 632years, under claim of title.

It remains only to inquire if the objections The controlling power of time is a part of thus fatal on the face of the bill may be taken the law of this case, and reference is made to advantage of by demurrer. To this point the the authorities cited at the former hearing. court is referred to the following cases: Mit.

In addition to these, there is now presented ford's Pleading, 99, 100, 102, 144, of the English to this court the written autographic opinion edition; Kuypers v. Reformed Dutch Church, 6 of Lord Mansfield, when Attorney-General of Paige, 570; Humbert v. Trinity Church, 7 England, in the year 1754, on the subject of Paige, 195; Utterron v. Mair, 2 Ves. Jun. 95; this very boundary, in which the eminent jurist Brooke v. Hewitt, 3 Ves. Jun. 253; Hardy v. declares that “if the king approves the agree. Reeves, 4 Ves. Jun. 476. This case was rement, it is now too late for the parties to dis- viewed and confirmed in Hovenden v. Lord pute it.” 4th vol. Trumbull's MS. papers, Annesly, 2 Sch. & Lefroy, 632; and the opinion Mass. His. Soc. Library.

of the Lord Chancellor, 637, especially noticed. Possession alone, it is respectfully contended, Hodley v. Healey, 1 Ves. & Beames, 536; in a case of this kind, uninterrupted and ex. Brooks v. Gibbons, 4 Paige N. Y. Rep. 374; í clusive for more than a century, is not only a Jacobs & Walker, 195. good title, but the best of all possible titles. *Mr. Wipple, for the complainants, (* 249 No other title gives, or was ever pretended to with whom was Mr. Randolph: give, any right to the British crown to make

The object of the plaintiff's bill is to obtain conveyance of land or empire, jurisdiction or possession of jurisdiction over a territory about sovereignty in this new world. By discovery four and a half miles wide, north and south, by or by conquest, possession was obtained, and about twenty miles long, east and west. This hence possession became ultimate right. When territory constitutes, we say, the northern bor. this possession was parted with, the right was der, of Rhode Island, and is included in the lost, at least in effect against all the rest of charter granted to Rhode Island by the crown mankind but the royal authority. Now, this of England. 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 Řhode 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 cotermin. or, forever, that the plaintiff demands title.

ous States, so far as it involves the rights of It has been suggested that it is not against the parties to jurisdiction. The right to the claim of possession. To this it is submitted soil is not in dispute. that no claim of possession can ever be ad- Massachusetts has demurred to the whole of mitted or considered in a court of equity, but the plaintiff's bill; and the question is, whether, that claim that is made in conformity to ju- taking the case as it is presented by that bill, dicial proceedings.

While this principle Rhode Island is entitled to relief. The first and 248*] *is universally true, it derives additional most obvious inquiry, therefore, is, what are force from the fact that there always was a the facts set forth in the bill ?

The leading and prominent facts are, lst. juries of the plaintift, if at any time such in. The charters of the crown to the two States of juries have been made known.

Massachusetts and Rhode Island. By the Mas. From 1740 to 1776 there was a regular appeal sachusetts charter, her southern line, or boundallowed to the King in Council. From the ary, is declared to be "within the space of three adoption of the confederation until the exist. English myles on the south parte of the saide ence of the Constitution of the United States, river called Charles River, or of any, or every authority to redress such injury vested in Con- parte thereof." The northern boundary, or gress. From that time to the present, this line, of Rhode Island, is declared by her char. high court has been the arbiter of international ter to be, “And from thence by a straight line, controversies between the States of the Union. drawn due north until it meets the south line The bill admits that no judicial effort has been of the Massachusetts Colony; and on the north, made to bring the dispute to an issue. Occa- or northerly, by the aforesaid south, or southersionally, indeed, Rhode Island has complained. ly, line of Massachusetts.” Once in about every thirty-five or forty years; By the Massachusetts charter, dated in 1629, that is, once in every generation of statesmen, the said Henry Rosswell et al. are created "A of which her soil has been prolific, she moaned corporation by the name of the Governor and over the loss of a right which she never pos. Company of Massachusetts Bay;" "which said sessed; but her murmurs never reached the officers shall apply themselves to take care for temple of the law, and aever were serious the best disposing and ordering of the general enough or loud enough for that purpose. business and affairs of, for, and concerning the 10 L. ed.

paramount power capable of redressing the in the

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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 specifind in the respective charters; same."

that Massachusetts must exercise the powers The same emphatic language is used in the over the lands and all the lands specified in her Rhode Island charter. It creates the freemen charter; that Rhode Island was subject to the of Rhode Island a corporation with perpetual same rule; that, consequently, it was not comsuccession; prescribes the times and mode of petent for either Massachusetts or Rhode Ischoosing the Governor and members of the land, by any agreement (not ratified by the Legislative Assembly; and authorizes the As-crown) to vary those powers, or to enlarge or sembly "from time to time to make, ordain, lessen the territory over which they were to be etc., such laws, etc., for the government of the exercised; that in this respect they were like lands hereinafter granted, and for the govern- all other corporations, and like most other coloment of the people who now inhabit, or may nial governments; that the right to legislate hereafter inhabit the same." “To establish was in the crown, the temporary exercise of it, courts to settle matters within the said colony,” alone, was in the colonies; and this exercise

Both charters, in their grants of legislative, might be terminated at the pleasure of the executive, and judicial powers, closely and crown. 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 con. terms 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 à police nature, with the supposition of a pow. colony 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 in. Providence Plantations, to make their appeals competent to purchase territory, the jurisdic. therein 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 Jamai.

By these charters the following important ca could cede to Bermuda the jurisdiction over facts are established:

a part of her island. Even the compromise of a Ist. That the first settlers of Massachusetts disputed line would derive all its validity from and Rhode Island were not independent in the express or implied ratification of the crown. dividuals, tribes, or communities, who took From these charters, then, we arm ourselves possession by conquest or otherwise for them with the following facts to start with: selves, over their respective territories, claim- 1st. That Massachusetts and Rhode Island, ing and acquiring an original and inherent pow. from the date of their charters, 1628 and 1663, er of legislation therein; a power which they down to 1775, were not sovereign independent could consequently transfer to each other or to Slates, but political corporations, possessed, as any third person or community.

trustees for the people, and by grant from the 2d. They took possession as subjects of the crown of England, of jurisdiction over certain crown of England, of a portion of a country specified limits. 251*] claimed to have been discovered by *Eng. 2d. That neither of the charters contained land; they took possession for and under the any authority to delegate this jurisdiction, or crown of England; that all the powers of legis- any portion of it, nor any authority to acquire lation which they ever claimed, or exercised, jurisdiction over any other lands than those was by express grants from the crown; that by specified in their charters. accepting these grants they acknowledged the 3d. That as these charters limit the south power of legislation to be in the crown; that to line of Massachusetts to “three miles south of Massachusetts was granted the power to legis. Charles River, and of any and every part there. late over lands as far south as “three miles of,” and grant to Rhode Island jurisdiction up south of Charles River, and of any and every to that line; that Rhode Island is still entitled part thereof;" that to Rhode Island was grant- to that line, unless it appears upon the face of ed the power to legislate as far north as the this bill that it has been expressly ceded to southernmost line of Massachusetts; that the Massachusetts by the crown of England, or by power to legislate north of that line was dele- Rhode Island, with the express or implied as. gated by the Massachusetts charter to Massa- sent of the crown.

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With this preparation we will approach the ony of Rhode Island; that new commissioners years 1710 and 1718, when the agreements were appointed in 1717, with full powers to upon which Massachusetts relies were made. settle all disputes; that these commissioners Those agreements are copied into the bill, and met at Rehoboth, in October, 1718; that the were made by commissioners with full authori. Massachusetts commissioners made the same ty from the two States. After they were con representations in regard to the Woodward and cluded by the commissioners, and the line run Saffrey stations, being but three English miles in 1718, to which Massachusetts has ever since south of Charles River, as were made by the claimed, they were accepted by the legislatures former commissioners from Massachusetts; of both States, but never formally ratified. that the Rhode Island commissioners, fully All the allegations in the bill in relation to confiding in these representations, signed the those agreements, whether true or untrue, in second agreement, commonly known as the point of fact, must be taken for truth for all Rehoboth Agreement. the purposes of this trial; because they are The agreement then states, “That the stake admitted by the demurrer. One material alle set up by Woodward and Saffrey, in 1642, upon gation is, “that a short time previous to the Wrentham Plain, be the station or commence253*) year 1709, the inhabitants of said "col- ment to begin the line which shall divide beony of Rhode Island, entered upon certain parts tween the two governments aforesaid; from of said lands adjoining the northern boundary which said stake, the line shall run so as it of said colony, and made improvements there may at Connecticut River be two and a half upon, and grants thereof." The bill then miles southward of a due west line, allowing states the existence of disputes between the in the variation of the compass to be nine dehabitants of the two States in relation to the grees; which said line shall forever remain," boundary line; and that, in consequence of etc. said disputes between said inhabitants, the two The bill repeatedly states that the commiscolonial governments appointed commissioners , sioners did not go upon the ground, nor cause to ascertain and settle the northern boundary the distance from Charles River to be measline of said Colony of Rhode Island; that these ured, so as to ascertain whether the Woodward commissioners met at Roxbury on the 19th and Saffrey station was but three miles from January, 1711.

the river or not. It also states that neither of “That the Massachusetts commissioners then these agreements were ever ratified by the leg. and there represented to the Rhode Island com- islatures of either of the colonies; that both missioners that Woodward and Saffrey, skill- said agreements, and all the proceedings of the ful and approved artists, in 1642, had ascer- Rhode Island Legislature thereon, were foundtained the point or place three English milesed on the belief that the Woodward and Safsouth of the river called Charles River, or offrey station had been ascertained, by compeany and every part thereof, and had there set tent and skillful surveyors, to be but three up a stake; and that the said Rhode Island miles from Charles River, and no more; that commissioners, relying on said representations, such mistaken belief continued to exist until and verily believing the said point or place to 1749, when commissioners were again appointhave been correctly ascertained, and the said ed by both colonies. The act appointing the place, where said stake was alleged to have Rhode Island commissioners is set out in the been set up as aforesaid, to be three English bill. Its preamble is as follows: miles, and no more, south of said Charles River, "Whereas, the northern line of this colony signed and sealed a certain writing, called an has never been settled according to the royal agreement, in the words following."

charter: and whereas, divers persons have made The agreement itself sets forth the authori- application to this Assembly, and have set ty of the two governments conferred upon the forth their just right to be under the jurisdiccommissioners, and a statement of the induce- tion of this government, as dwelling within the ments to settle the dispute in an amicable man- bounds thereof; and that the province of ner, and then proceeds to state, That they *Massachusetts Bay have and do un. (* 255 have mutually agreed that the stake set up by justly exercise jurisdiction over them. In Woodward and Saffrey, skillful approved order, therefore," etc. artists, in 1642, and since often renewed, in The Rhode Island commissioners met at lat. forty-one degrees fifty-five minutes, being Wrentham, after giving the Massachusetts three English miles distant southward from commissioners notice of the time and place; the southernmost part of the river, called and after waiting for them two days, they comCharles River, agreeable to the letters patent menced measuring the distance from the most for the Massachusetts province, be accompted southerly part of Charles River to the Wood. and allowed on both sides, the commencement ward and Saffrey station, the starting point of of the line between Massachusetts and Rhode the line agreed upon by the commissioners in Island, and to be continued between the gov- 1710 and 1718, and instead of three miles from ernments in such manner as that, after it has Charles River, as had been stated by the Mag. proceeded between the two governments, it sachusetts commissioners, and as was laid down may pass over Connecticut River, at or near upon the Woodward and Saffrey, map, they Bissel's house, as is deciphered in the plan and found it to be over seven miles. These comtract of the line by Woodward and Saffrey, missioners measured three miles due south now shown forth to us, and is remaining upon from the most southerly part of Charles River, record in the Massachusetts government. and from the point extended a line due west · The bill then states that disputes still con- until it reached the Connecticut line. Upon tinued to exist between the inhabitants; that this east and west line, only three miles south the boundary line still remained unsettled, as of Charles River, they erected various monu254*] *said pretended agreement was never in ments. The Massachusetts commissioners re. any manner ratified or confirmed by said Col. fused any participation in the measurement of the distance of three miles south of Charles | miles south of Charles River; and that the River, but adhered to the line established four north line of Rhode Island, by her charter, is miles farther south by the agreements of 1710 the south line of Massachusetts. Consequently, and 1718.

she admits that, by the express terms of the Three lines, then, have been run between two charters, the territory in dispute belonged these two States. The first in 1710, by agree to Rhode Island anterior to 1710, being all that ment of the commissioners of both parties, be- territory lying more than three miles south of ginning at the Woodward and Saffrey station, Charles River; and the south line of it, as "being three miles south of Charles River, claimed, and occupied by Massachusetts, "more agreeable to the letters patent for the Massa- than *seven mile from Charles River, (*257 chusetts province, and to be continued between and from any and every part thereof." the two governments in such a manner that it 2. She admits that the two agreements of may pass over Connecticut River at or near 1710 and 1718, establishing the Woodward and Biggel's house."

Saffrey station, were entered into under the The second line was by the agreement of the representation by the Massachusetts commiscommissioners of the two States, in 1718, and sioners, that the station had been fixed and es. starting from the same point, the Woodward tablished by skillful surveyors, and was but and Saffrey station, “from which said stake three miles from Charles River; that the map the dividing line shall run, so as it may at Con of these artists was produced by the Massa necticut River be two miles and a half to the chusetts commissioners, in confirmation of this southward of a due west line."

representation; and that the Rhode Island comThese two agreements differ materially in missioners, confiding in this false representathe course of the line, the first terminating at tion, entered into these agreements under the the west end, several miles farther south than full belief that said Station was but three the second.

miles from Charles River, and no more. The tnird line was run by the Rhode Island Massachusetts now admits that said station, commissioners alone (the Massachusetts com- and said line run from it, were more than seven missioners having declined any agency in it), miles from Charles River, and from any and in 1750, and not only its termination at the every part thereof. 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 Riv. was over seven miles south of Charles River, in er, its course due east and west; and that 1749, or 1750, when this last line was run. Rhode Island has claimed to that line ever

It is also alleged in the bill that Massachu- since. setts took possession as far south as the line These are the facts admitted by the pleadestablished in 1719, immediately after that ings, upon which the validity and binding effect period; and has been in the possession of the of the agreement depend. territory between that and the line run by the In the argument of that question it has not Rhode Island commissioners, in 1750, ever since been pretended that such agreements between 1719.

two individuals would be binding, either in It is also stated, as a fact, "that the place law or in justice. The misrepresentation of from which said line was run (the line of one party, and the mistake of the other, would 1719) was and is more than seven miles south render them a mere nullity. of the river called Charles River, and of any The only ground upon which it is attempted and every part thereof."

to support them is, that they amount to a Upon the whole facts, as stated in the bill, treaty between two sovereign States; and that and admitted by the demurrer, the defendant it is a principle of the laws of nations, that contends that she is entitled to continue her all treaties are binding, whatever may have possession of the disputed territory: 1st. Be been the mistake of either party. cause jurisdiction over that was ceded to her We do not admit the existence of any such by force of the agreements of 1710, and 1718. rule among nations. A practical difficulty in 2d. Because, having been in the actual posses. annulling treaties between sovereign States, sion of that jurisdiction, as the bill itself founded on mistake, may arise from the abstates, from 1719 down to the filing the bill in sence of any common arbiter between them. 1832, she has gained a title to the jurisdiction But suppose a common arbiter, by the agreeby possession and prescription.

ment of parties, fully authorized to settle any All the material and important facts in rela question of boundary between two nations of tion to the first point, the legal effect of the sovereign and independent power, and one of agreements, standing by themselves, have been them should rely upon a treaty, *which (* 258 stated, except the allegation distinctly made, it admitted was founded in a mistake of the that these agreements were never ratified by other party, caused by its own misrepresentathe crown. We will now consider briefly the tions; is there any tribunal in the civilized question, do these agreements, by themselves, world that would sanction such a treaty? This infer any right to jurisdiction over the terri- court is a tribunal established by the Constitu. tory in dispute!

tion, to decide all such questions between the Å recapitulation of the facts bearing upon States that have become parties to that Consti. the validity of these agreements may aid us in tution. Was it the intention and design of the estimating the force of the opposite argument. Constitution that this court should decide with.

1. Massachusetts admits that her chartered out regard to any fixed principles of law or line on the south is an east and west line, three l justice 1 I. treaty between two States,

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