
    The State of Rhode Island Providence Plantations, complainants v. the Commonwealth of Massachusetts, defendant.
    -The Supreme Court has jurisdiction of a hill filed by the state of Rhode Island ,. against the state of Massachusetts, tp ascertain and establish the northern boundary between the states, that the rights of sovereignty and jurisdiction be restored and confirmed to the plaintiffs; and they be quieted in the enjoyment thereof, and their title; and for other and further relief.
    Jurisdiction is the power to hear and determine the subject matter in controversy ' between parties'to a suit; to adjudicate or exercise any judicial power over them. An ohjectiori to jurisdiction,on the ground of exemption from the process of the! •court in which the spit-is brought, or the manner, in which a defendant is' brought into it, is waived by appearance and .pleading to issue; but when the objection goes to the power of the court over the parties-., or the subject matter, the defendant need not, for he cannot -give the plaintiff a better writ, or bill.
    The Supreme Court is one of limited and special, original jurisdiction. Its action must be confined to the particular casfes, controversies, and parties over which, the constitution and laws have authorized it-to act; any proceeding without .the limits prescribed is coram non judice, and-its action a nullity. And whether the want or excess of power is objected by a party, or is apparent'to'the Court, it must sur1cease its action, or proceed extra-judicjally'.
    The several states of the United States, in their highest sovereign capacity,, in the convention of the people thereof, on whom, by the revolution, the prerogative of .the crown and the transcendent power of parliament devolved, in a plenitude unimpaired by any act„and controllable 6y no .authority, adopted the; coristitütion; by which they respectively made to the United Statés a gra-ht of judicial power over controversies'between two, or more states. By the constitution., it Was ordained that this judicial power, in cases where a state was a party, should be exercised by the Supreme Courts as one of original jurisdiction. The states Waived their exemption from judicial power, as-sovereigris by original and inherent right, by their own grant of its-exercise over themselves in such cases; but which they would not grant to any inferior tribunal. By this grant, this Court has acquired jurisdiction Over the parties in this cause, by their own consent' and delegated authority, as their agent for executing the judicial power of the United States in the cases specified. Massachusetts has appeared, submitted to the process-in her legislative capacity; and plead in bar of the plaintiff’s action certain matters on- which the judgment -of the Court is asked. All doubts as to jurisdiction over the parties are thus at rest, as well by the grant of power by the people, as the Submission of the legislature to the process; and calling on the Court to exercise its jurisdiction on'the case pre- . ■ sented by the bill, plea, and answer.
    Although the constitution docs not in terms extend the judicial power to all contro- ’ versics between two or more states; yet it in terms excludes none, whatever may be their nature or subject.
    This Court, in construing the constitution as to the grants of powers to the United States, and- the restrictions upon the states, has ever held, that an exception of any particular .case presupposes that those which are^not pxceptéd, are embraced within the grant or prohibition: and have laid jf'down as,a general r,ule,-'.that where no .exception is made in terms, none will be made by there implication or construction.
    In the. construction of the constitution we must look to the‘history of ffieitimes, ana examine the state of things .existing when it was-framed and, adopted, to ascertain the old law, the mischief, and the remedy.
    The .boundary established and fixed-by compact between nations becomeseoncldsive upon all the subjects and citizens .thereof;!-and binds their-rights; and is tobe - treated, to ail .intents and purposes, as the true -re.al, boundary: The coristruction of such'Compact is a'judicial question..
    There can be bpt.tWo tribunals-under the constitution who can act on the' bounda- ' ríes- of states, the -legislative' or the judicial-power j.-the former is limited, in eXpre'ss terms, to. assent or dissent wh,ere. a compact or' agreement is referred, to them by ' the states; and as the letter can.be exercised.only by .thi»-Courtwhen a state’is a party; the power is herb,.or it cannot exist.
    This Court exists,by a diréct grant from- thepqopleof -their judicial power: itlls exercised by-their,authority, as theit agtoit,'selected by them selves,'forthe'púrpóáeS specified. The people of the .states, ds'they-respectively-become- parties.-to the constitution, g¡¡.ve- to the judicial.píiwer ■ rff the Ifnifed States, jurisdiction-'over themselves;-controversies.between statés,between -citizens, of th.e same or différent utatesi/claiming lands Under their. eonfhctifig'-.'.grauts, within disputed, territory-
    No court acts differently' in deciding , oil boundary .between states, than ‘On' lines between separate tracts of land., Tf there is.-.un^brtairity where'the line is, if there is ¿'confusion of-boundaries by -the.nature of-interlocking grants, the obliteration of marks, the- intermixing of -posseksibu 'under different-proprietors, the effects, of accidfentj'fráud-, 6r time.; or other kmdred'dausesj'it is a oa's.e appropriate tqequity. ,An issue at law .i's-direéíe.d, a. commission; of boundary awarded; “or,-if thecourtaresatisfied without .either; they decree whati and. where the-boundary of a farm, a manor, province,.or a-state, is ¿fid shall be:
    There is ¿either the authority of law'or reason "for the position,-that boundary between nations or states is, in its nature-, any more p political question than'.any -other subject on which they may contend. None .can b,e settled without war or .treaty which-is by political p'ower; but,-under the old and new confederacy, they could apd can he -settled by ¿ court' constituted by themselves-, as tneir owp' substitute^, authorized jo do that'for-states, Whibh stated ¿lope could do before. ■
    It has been' contended that- this Court- cannot proceed in this causé without some process and rule of decision prescribed appropriate to the case;-, but no Question oh process can arise on these pleadings; hone' is now necéssary, as the defendant has appeared and plfead,. which plea in itself makes the first point in the cause, without any additional proceeding; that is,'whether the plea shall-be allowed, if sufficient in law, to.'bar the complaint, or'.be overruled, as not being .a b¿r in law. thoughtrue in fact.
    This Court cannot presume that any. state which,holds prerogative rights for -the good of its citizens', and by the constitution has agieed that those of áhy- other' state shall enjoy rights, privileges, and immunities in each as jts oWn, do,, would either do wrong, or deny right to a sister state or its citizens, or refuse to submit to those decrees of this Court; rendered pursuant to its own delegated authority; when in a' monarchy,¡ its fundamental law declares that such decree execiites itself
    In .thp case'of Ohnstead, this Court expressed its opinion, that if state legislature^ may annul the judgments of-the courts of the. United States, and the rights thereby .' acquired, the constitution becomes a-solemn mockery, and the natiop. is deprived ' of the means 6f enforcing its laws by its own tribunal'. 'SÓ fatal a result must-be deprecated by all; and the people of every statp-must feel a- deep'interest in’ resisting principle's so' destructive of the Unión, and iii averting consequences so fatal' to themselves;'
    ON the 16th of March, 1832,’ the state-of Rhode Island, .by their solicitor, filed a bill against the state of Ma$Sachusetts,;for the settlement •of the. boundary between the two states; and moved for-a sübpeehá to be issued,, according to1 the practice of the Court, in similar cases;
    •.This motion was held under adv'sement until'the following term; and k. subpoena was awarded and issued bn the.2d of March, 1833. ' This.subp'oeija- was returned with service on the 30th July,'1833;, and on-the 18th January, 1834, the .appearance of Mp. Webster was entered' for the defendants;, and, on' his- motion, the oause was con tinued with, leáve to plea,. answer, Of demur. .
    "On the 1'2'th January, 1.835, a plea and answer -was filed- by Mr.' Webster;--and on the 22d of February, Í836, by á'greément ofvcoun- • sel; it was'.Qrdered' by the Court, that the complainant, file á replicaron, to the answer gf the'defendant, within six months from the-last day.of January tefm, 1836,-or that the cause shall stand’dismissed.-• The' complainant' filed a’replication, on- the- 18th of August, 1836; and at .the same time;- a “ notice of’intention to move the Court for leave to withdraw the replication., upon the. ground that thé rule" requiring'the same was agreed to -and entered into by mistake.n
    - The bill filed .by the complainants, set,- forth, the. original charter grantéd on'.the third .day of November, 1621, by King James the First, to the council-at. Plymouth, for planting, ruling, ordering and governing New England;,in-America, describing the limits and boundaries of the territory so. granted. ' The grant or conveyance to thé council at Plymouth; óf- the l9tb*of March, 1628, to Sir Henry Rosewell and others, of a certain tract o'f land described in the same; as “ all that part of New England, in America, aforesaid, which liés and extends between a great river there, commonly called Mononiack,. alias Mérrimae, and. a certain other, river, there called Charles river, being in the bottom of a certain bay, there pommonly called Massa-r chuseft's, alias Máttachusetts, alias Massatusetts, bay; and, also, all arid singular those lands, and hereditaments; whatsoever, lying within tlie space of three English miles on th,e south, part of the said Charles river,, or of ány or every, part thereof: and, also, all and singular the lands and hereditaments, whatsoever, lying and'being within the-space of - three English miles to the southward of the -southernmost part of ,tlie said bay, called Massachusetts, alias Mattachüsetts, alias Massatusetts bay; and, also, all thosedapds and hereditaments, what-. 'soever, which lie and be within the space of .three English miles' to. the Northward of the said river, called Monomac-k, alias Merrimac, or to the northward of any and every part thereof, and. all' lands arid hereditaments; whatsoever, lying within the limits aforesaid; north and south-in latitude and breadth, and in length -and longitude of «arid within all the-breadth aforesaid, throughout the paain lands there, from the Atlantic and western sea and ocean on the east part, -to the Sputh sea on the west part.” The letters patent o'f confirmation,'and grant of Charles .the First, of 4 th of March, 1629,,to Sir Hgpry Rose-well and others, for the lands included in-the charter of Janies: the First; ¿nd the deed of the council at Plymouth, to them by the name' of “The-Governor ¿nd Company of Mattachustetts Bay in New England,”' incorporated by the said letters patent.
    - -'The -bill further stated that on’ the 7th day of June, '1635, the council established at Plymouth-for planting'a colony and governing New. England, in America, yielded up and surrendered the charter of James the First, to Charles the First; which surrender was duly and in form accepted. That after the - granting of the letters-patent, before .set fórth; and prior- t,o the] granting, of the letters patent afterwards set forth in the bill to the colony of Rhode Island and’ Providence Plantatibns, the tract of land comprised within the limits' of the' state of Rhode Island and Prbvidénce Plantations, had been colonized and. settled, with a considerable population by emigration, principally from England and the colony-of the Massachusetts, bay; and that the persons who had so.colonized and-settled the same, were seised ¿nd possessed-by purchase and consent of the'Indian natives, of certain lands, islands, rivers, harbours and roads, within .said tract. Thát on the 8th of July, 16.63, King-Charles the' Sécond, by letters patent, granted a charter of. incorporation-to William Breriton, John Coddington and others, by the.riame of “ The Governor ¿nfi Company of the English Colony of. Rhode'Island'arid Providence Plantations in New England, in America;” and granted and conferred to the corporation, by the letters patent, “ all that part of our dorr Unions in New England, in America, containing the N aliantick -and Nanhyga'nsett, álias Narragansett, bay, and 'countries and parts -adjacent, bounded on the west or-westerly to the. middle dr channel, of a river there, commonly called and known by the name of-PawcatuCk, alias'PaweawtUek, river; and so along the said river as -the greater or middle stream thereof rea'cheth or lies, up into the north.country, northward Unto the head thereof; and from .thence, by a straight -line drawn due north, Uiitil it meets with the south line of the Massachusetts colony; and on the. north or northerly .by the aforesaid south or southerly line of the Massachusetts colony or plantation; and. extending towards the east or eastwardly three English miles, to the east and north-east of the most eastern and north-eastern parts of the aforesaid Narragansett bay, as''the said bajr lieth 'Or- exr tendeth itself from the' ocean on the south or southwardly, unto the mouth-of the river which runneth towards the town of -Providence; and from thence along the eastwardly side or bank- of the said river, ('higher called by the name .of Seacunek. river) up to the falls called ■Patuckett falls, being the most westwardly line of Plymouth colony; and- so from- the said falls, in.a straight line due north.until it meet with-the aforesaid line of the Massachusetts'colony; and boilnded oh the .south by-the-ocean.; And, in particular, the lands belonging to the town of Providence, Pawtuxet, Warwick, Nisquammaco.ck, alias Pawcatuck,. and the rest upon the-main land in the tract aforesaid,together with, Rhode Island, Block, Island, and'all the rest, of the islands and banks in the Narragansett. bay, and'bordering upon the coa?t of the tract aforesaid, (Fisher Island only excepted,) together with all-firm'lands, soil?,-grounds, havens, ports; rivers, waters, fishings,- mines royal, and all." other mines, minerals, precious stones, quarries, woods, wood • grounds, rocks, slates, and all and singular other commpdities, jurisdictions, royalties, privileges.,- franchises, preheminences, and .hereditaments, whatsoever, within the said tract, bounds, lands,, and. islands, aforesaid, or to them, dr any of them, belonging or in- anywise appertaining.”
    - The bill.'proceeds -tó state'the cancelling and vacating of the charter to The Governor and Company of Massachusetts bay in New England,” on a scire facias; and afterwards the regrant of the same territory, with other territories known by the name of the colony of Massachusetts Bay and colony of New Plymouth, the province of Maine, &c., by King William and Queen Mary, on. the 7th dl 'October, 1691.' Tbe description of the territory then granted; so far-■as the same is important iri this case, was the’following:
    
      “ All that part of New England, in America; lying and extending ■ from-the great river commonly'cálled Monomack, alias-Merriniact; on the north part, and from.-three miles northward of the said'flyer fo-thé Atlantic, or western sea’or ocean on the south-part, and all the lands, and-hereditaments, whatsoever, lying within'thé limits aforesaid,' and-extending as far -as the outermost points or- promontories of land .called, Cape Cod and Cape Malabar, north- and.' south, arid- in latitude, breadth, and- in length, and longitude of and within all.the breadth’ and compass aforesaid, throughout the’-mainland there,,from the said Atlantic or western sea and ocean on the-east, part; -towards the South sea, or- westward, as far-as our' colonies of Rhode Island, Connecticut, and-the Narragansett Country.- And,.aláo, all .that part nnfi portion of main land; beginning at the entrance .of Piscataway ’harbour, and so to pasa up the same into the river of -Newichwannock, and’ through the same into, the' furthest head, thereof, and from thence northwestward, till one hundred '.and twenty miles be finished,- arid - ■ from Piscataway ,harbour mouth; aforesaid,-riorth-eastward, along -the sea coast tó Sagádého’ek,.'and -from the period of one hundred and twentv miles,'aforesaid, ,to cross over larid to the one hundred' and twenty miles before.reckoned up- into ,’the- land from Piscataway harbour, through 'Newichwannock 'river; arid also-the north half of the Isles, of Shoals, tpgethen with the Isles-of C'apáwock and Nantúckett, neat Cape- tíód aforesaid; and’ also the -lands ánd' hereditaments lying, and being iri the coütítry.or-territory commonly-called' Accada-or Nova.Scotia;' and'all.thosé lands arid-hereditaments.lying and extending between the said country or territory of Nova Scotia, and- -the -said' river of Sagadehock, or any part thereof.”
    ’ Thé bill’ states, that/the province of -Mássaehusétts ahd the colony of Rhode Island; and' Providence Plantation's, thus established, conlinued under the charters and letters, patent until. July 4, 1776, when, with their sister colonies they became independent states. -The'bill alleges the.dividing boundary line, under the letters patent and charter to.the' colony of Rhode Island and Providence.Plantations arid Massachusetts, to have been “a line'drawn, east and'.west three English miles south .of. the’rivér’called-Chárl'es river, or ofany or every, part thereof-”’. That for.some years after the granting of the charter •.to Rhode Island, the lands included iji the colony adjoining Massachusetts; remained wild and-uncultivated, and \yere of little-value; that previous: to 1709, the inhabitants of Rhode Island entered on parts of-the land and made improvements; and that'the said northern boundary :line never having been settled, defined or established, dispute^ and controversies arose between the inhabitants of the province of,.the Massachusetts Bay and of the colony of Rhode Island and Providence Plantations, and between the governments of the said province and colony, in relation to the boundary, of said colony.
    The bill proceeds to state, that in consequence Of. various disputes and controversies about the boundary between the two colonies, numerous efforts were made to adjust and settle the same; all of which, as the bill alleges, yvere not productive of a satisfactory result to the colony of Rhode Island and Providence Plantations; and'to the state off Rhode Island, afterwards established.
    These are'particularly set forth in the bill ; and the proceedings of the legislatures of Rhode Island .and Massachusetts-are. giyen-, at large in the same,, with the operations of the commissioners appointed and acting under the-authority thereof.- After stating the' efforts made by the two states,' both whilst colonies and after they. became independent.states, for the determination of .the line, up to 1.791: alleged to have been abortive and-without súecess; the bill proceeds to state; i{ That'on or about the year of our Lord one thousand seven hundred and ñipe, othér commissioners were appointed by the 'said state of Rhode-Islahd and Providence Plantations and the said state of Massachusetts, for -the purpose of ascertaining and settling the said northr ern line ofthe- said state of Rhode Island and Providence, Plantations'; that- the said lase mentioned commissioners respectively, continued such commissioners until thé year of- our Lord one thousand seven -hundred and eighteen; and that the said la-ut mentioned coni? missioners had reveral meetings, but were never able to-agree upon and settle, and never did agree Upon and settle, the said northern line of. the said state of Rhode Island and Providence Plantations.”
    The bill asserts the right of Rhode Island to the territory iii dispute.; that Massachusetts is in possession, of the same, and exercises and asserts sovereignty and jurisdiction over the same, under tine pretences that ,the. same was included in the grants, or-charters, from the -crown of England, under the mistaken belief that'the line, three miles south o'f Charles river, (a.station having been fixed by-Nathaniel WoodwQrd and Solomon Saffrey, as the point three miles south of .Charles river,) actually, runs where Massachusetts has assumed it to run; and alleging that the line, as it is; claimed, and Ras always been claimed by Massachusetts, was settled and ádjusted by the commissioners acting under the authority of the parties respectively.
    The bill proceeds to. show the errors of proceedings of the commissioners acting for the .two colonies; and states, “That no mark, stake or mpnument at that .time existed, by which the place in which said Woodwprd and Saffrey, were so as aforesaid alleged to have set up a stake, could then be ascertained. That the persons who executed, witnessed and consented to the said pretended agreement, did pot, nor did'any or either of them, go to any place where said stake was .alleged to have been set up; nor did they, or any or. either of them, make any survey, or cause any survey to be made, or run any line, or lines, or cause, any line or lines to be run, or take any other means to ascertain at what place, if any, the said stake'was setup by said Woodword and Saffrey; nor whether the place in which the said stake was alleged as aforesaid to have been set up by the said Wood-word and Saffrey, was in fact three English miles, and no .more, south of the river'-called Charles river, or of any or every part thereof; nor whether the ssid line, alleged in said pretended agreement to haye .been fun by the said Woodword and Saffrey, was ever in fact run by said Woodword and Saffrey; nor whether said pretended line .was the true and proper, boundary line between the said province of the Massachusetts Bay on the north, and the said colony of Rhode Island'and Providence Plantations on the south, according to'the true intent'ánd meaning of the grants contained in the respective, charters or letters patent aforesaid.”
    The bill asserts, that,'the line designated and run under the agreements, has always been resisted by Rhode Island; while a colony, and since She became a soyereign state; and that no other boundary than that asserted in. the bill between Rhode Island and Massachusetts, than that defined, granted and established in and by thee respective .charters ánd letters patent aforesaid herein before set forth, accord-ding to the true and fair construction thereof, has ever been consented to, Or admitted to be the true boundary line by the complainants; either while she continued'under the royal government, or since she became an independent and sovereign state.- The proceedings of. Massachusetts are alleged to “.interfere with and prevent the exercise of that jurisdiction and sovereignty which, by the law .of the land ánd- the constitution of the-Union, she is entitled to exercise over the whole-tract of land, mentioned and described in the charter or letters patent granted to the said colony of Rhode Island and ProyidenCe Plantatións, and hereinbefore set forth, and .over the citi-; Zens and inhabitants thereof, according to her claim in this her bill made.”
    s The bill asks, that inasmuch as the complainants have; no satisfactory relief on the common law side 'of the Court, “ especially as the Controversy concerns questions of jurisdiction and sovereignty,” that the commonwealth of Massachusetts answer the matters set forth in the bill; and -that “the northern boundary line between 'the complainants and the state of Massachusetts may,'by the order and decree of this honourable Coürt, be ascertained'and established; and that the rights of jurisdiction and sovereignty of the complainants to the whole tract- of -land, with the appurtenances mentioned, described and granted in and by the said charter or letters patent to the said colony of Rhode Island and Providence Plantations, hereinbefore set forth, and. running on the north, an east and west line drawn three miles south of the waters of .'said Charlés river, or" of' any or every part thereof, may be restored and confirmed to the complainants, and the complainants, may be quieted in the full and free enjoyment of her jurisdiction .and sovereignty' over the-same; and the title, jurisdiction-and sovereignty of the said state of Rhode Island and Providence Plantations over, the same be confirmed and established, by the decree of the .Court; and that the complainants may have such other and- further relief in the premises, as to ‘the’ Court shall-'seem meet and consistent with equity and good conscience.”
    ' “The Plea and Answer of. the commonwealth of Massachusetts, to the- bill Of complaint of. the state of Rhode Island,” alleges, that in 1642,'for the purpose of ascertaining the frue southern boundary,line Of Massachusetts, a station Or monument was erected and fixed at a point south of Charles river, taken and-believed to be on the. true and real boundary line of the colony of Massachusetts; which monument became and has ever since been well known and notorious, and then was and ever’since has been called Wood word and Saffrey’s station, on iWrentham Plains: and after the fixing of said station, and after running of the line aforesaid, and after the granting of the charter of Rhode Island, and while all the territory north of said station and line was claimed, held, and possessed, and jurisdiction over the same exercised and enjoyed by Massachusetts, as parcel df her own territory, about the year 1709,. dispute and controversy having arisen between the two governments respecting the said boundary line. persons were, appointed, by the goyernmenfc of-Rhode Island and by the government of .Massachusetts, to settle'the misunderstanding about the line between the colonies; and what the persons appointed should, agree upon,-should be forever-after'taken and deemed tó be the stated-lines and bounds, so .as the-agreement .be drawn 'up-in writing, and indented, under.their hands arid seals, within six months as aforesaid.
    That .afterwards, on the 19th January, 1710, the commissioners appointed by the colonies met, and entered into añ “ agreement of the partition line betwixt the colony of Massachusetts and the colony .of .Rhode Island,’’ by which it was declared: “ That the stake set -Up by Nathaniel Woodword and Solomon Saffrey,' skilful approved artists, in the year- of our Lord one thousand six hundred and forty-two; and since-that often renewed, in the latitude of' forty-one de-' grees-and fifty-five mihutes, being three English miles distant southward from the southernmost part of the river -called Charles river, agreeable-to the letters' patent for the Massachusetts province, be accompted and allowed, on both sides, the commencement of the.line between -the Massachusetts and, the' colony of Rhode Island, and to be continqed -betwixt the said two governments in such .manner as that, after it has proceeded between -the said two governments, it may pass over-Connecticut river, at or.near Bissell’s house; as is decypher'ed in thé p'lap ánd tract of that line, by Nathaniel Woodword and Solomon Saffrey.”-
    By this agreement, on' a presumption that there-had been error in setting up the station, certain survéys had' been made within the -line of Massachusetts, thus ascertained, it. stipulated that there .should “be and remain unto the said -town of. Providence.and inhabitants of the government of Rhode Island and Providence Plantations, a certain tract of .land of one mile in breadth, to the northward of the. said line of Woodword and'Saffrey,-as before described'and platted, beginning from "the great river of Pautucket, and so to proceed at the north side of the said patent line, of equal breadth, until it come to the place where ^providence west line cuts the said patent line, supposed to contain .five thousand acr.es, be the samé more or less; the soil- whereof shall be, and. remain to-the .town of Providence, or others,.according.to'the disposition thereof to, be made by the government of Rhode Island aforesaid. -Nevertheless, to continue an.d remain if ithin thé jurisdiction and government of her majesty’s pro-vi' .'ce of the Massachusetts Bay, ány thing in this agreement to the contrary thereof, or seemingly so, notwithstanding.”
    
      The'agreement'contained other provisions for the preservation of the line, and for. the ascertaining- the surveys made by the inhabitants of Providence‘within the same; so-that'they might- proceed-with' the settlement and improvement-thereof.
    This agreement was executed under the bauds and seals’of the commissioners; :ancL was- witnessed by persons on the part of the two colonies.'
    The plea and answer alleges, that the-whole of the real and true merits of the.-complainants’ supposed cause of action were.fully heard, tried, and determined by the judgment and agreement of the commissioners; that the same-was a'full-settlement of all the matters in controversy, and was.madfe in good-faith; and the station so fixed and established,, became matter of common notoriety, and the,line capable of. being always known and ascertained.
    ■ The answer and- plea further states, that, afterwards, on or about June. 18th, 1717,.'to complete the settling and running the line between the twd governments, the general assembly of. Massachusetts-passed .an order - appointing commissioners, to meet commissioners -to . be appointed by Rhode Island to run the line; according to the agreement-of January 19th, 1710. Certain other proceedings on the part of Massachusetts took place, preparatory to'the procéed-ings of the commissioners; and on the 17th June, 1717, the general assembly of the colony of Rhode Island, .and Providence Plantations 'passed ah act, appointing commissioners on the part-of Rhode Island, for th.e-final-settlement of the.boundary line with the commissioners named-and appointed by Massachusetts. On or 'about the 22d of October, 1718, the- commissioners met, and then made an agreement, ■ which was signed, sealed, executed, and delivered by them, by which it was stipulated and declared : .“That the stake.set-up by Nathaniel Woodword and Solomon Safirey, in the year one thousand six hundred1 and forty-two, upon Wrentham-Plain, be the station or commencement -to begin the line which- shall divide between the two governments aforesaid, from which said stake the dividing line'shall run,,so ase it- may (at Connecticut river) ..be two miles and a half to the southward of .a due west line, allowing the variation of the compass to be'ninfe degrees, which said line shall forever be'and remain to be the dividing line' and boundary between the said- governments, any former difference, controversy, claim, demand, or challenge whatsoever notwithstanding.” And on the twenty-ninth day of the said October last aforesaid, the general assembly of the said colony of Rhode Island and Providence Plantations accepted the agreement'of the said commissioners, and.caused the same to be. duly.-recorded; and' thereby ratified and confirmed the same..
    The answer avers that'all this was done in'; good faith, and with a full-and equal knowledge'of all the circumstances by the'respective parties; arid that the same has ,faever been annulled, rescinded, or abandoned; and the last agreement was in pursuance- of the agrees irient of 1709... Afterwards, on the 14th May., 1.719, the commissioners on the part of Massachusetts and: Rhode Island, signed a report, return, and statement of their proceedings,-uhd'er the designation of “The Subscribers, being of the committee appointed and empowered by the governments of the province of Massachusetts Bay and the colony- ,of Rhode Island and Providence Plantations;, for settling the east and west line between the said governments;” stating that they-had 'met at the stake of Nathaniel Woodword and Solomori'Saffrey, on.WrentKam Plain, and had run the line, placing heaps .of stones and .marking trees to designate the same.
    The defendant further alleges — “That the said report, return, or statement was .afterwárds, that is to say, on qr about the sixteenth Ray of Juné, in the year of bur Lord one thousand seven hundred and nineteen, approved by the' general assembly of the said colony of Rhode Island and Providence Plantations;” and the defendant álr .leges, that from the date of the said agreements 'to the- present-time, the said commonwealth of Massachusetts has possessed á mb-enjoyed all the, territory, and exercised jurisdiction over, the same, north of the-said line,;'as' prescribed in the said agreements of-Octobér, 1718, without hindrance or molestation; and’ the said defendant avers -that both the- points of beginning agreed upon by. said parties to said agreement, viz': the stakeor station setup by the said Wood-word and .Sarfrey, arid the line run therefrom to Connecticut river, then-were, ever since'have been, an'd still are well known and- notorions; that the whole boundary line fixed on by .said agreement is jireeise, definite,-and qertain; and that the said-defendant has oecp-, inéd'ánd exercised jurisdiction', and enjoyed all rights of sovereignty "according tq the same, from the date thereof to thé'present tripe.
    . -The defendant pleads the agreement of 19th- January, 1710; and the agreeihept in pursuance and confirmation thereof, qf 22d October,-1717; áhd unmolested possession under the same from their date; in'bar of tKe whole'bill of the complainants: and prays judgment accordingly.'
    
      ' The answer and plea further aver, that the agreements stated wfere made and entered into with full knowledge of .all the circumstances" in both parties; that the same were-a-valid and" effectual settlement of the inatters in controversy;-and were made and entered ir-to without fraud or misrepresentation: and the station settled-there has been notorious, and the line run therefrom- has always been known, and its marks and memorials capable, of being discerned and renewed.
    '.Mr, Webster, of counsel for tne state of Massachusetts, moved to dismiss the bill-filed by .the state of. Rhode-. Island, o'n the. ground that the Court had no jurisdiction of the", causé.
    -The-motion was argued by Mr. Austin, the .attorney general of the state of Massachusetts, and by Mr. Webster, on the part of the state of Massachusetts; and by Mr.-Hazard and Mr. Southard, for the state of Rhode Island.
    Mr. Austin, in support" of the motion:
    This is an "action by bill on the equity side of the Court,, instituted by thé state of Rhode Island against the state,of Massachusetts;
    The. bill ,asserts the claim of Rhode Island to jurisdiction and sovereignty over a portion of territory, therein particularly described. The territory, so described, comprises between eighty and one.hundred square miles, being a part of. six'townships, incorporated .under the laws of Massachusetts, with -a population of about five thousand persons, at present citizens of that state; and not less than five hundred thousand dollars of taxable property." But the bill makes "no claim to any right of soil. It does not seek to disturb the. title of the present possessors of the land, whose ancestors probably derived their- title from the grants- of the early government, in Massachusetts. it admits that the sovereignty and jurisdiction which it Seeks’ to acquire, now is, "and always, heretofore, from the first settlement of the country, have, in -point of fact, been enjoyed and possessed, first, by tjue colony, aftérwards by the province of Massachusetts, and then by the state of Massachusetts, at the declaration of American independence; at the adoption of the constitution of the United States, and uninteruptedly to the present time; but avers that the territory over which jurisdiction and sovereignty are now demanded for Rhode Island, was not included within the boundary of the ancient colony of Massachusetts, in 1642, but was contained in the description óf .the limits of Rhode Island, as established by thé .eharteh of Charles the Second, made' to' her as a. colony .of Great Britain, in 16.63and.by force of. that charter, ought now’rightfully to. be- enjoyed by her:' bütthat Massachusetts wrongfully usurped jurisdiction and sovereignty over the .territory-thus, claimed,-and now possesses it,'and has always-possessed it without right,
    .The'-complainant therefore-asks-of-this Court,-that the northern b’oundary-line hetween the complainánt and the state -of Massachusetts,. may,' by the order and decree of this honourable Court,- be ascertained and established, and-, that the rights of jurisdietipn and Sovereignty of. your complainant,- maybe restored and- confirmed;to the.complainant; and-' your complainant may be quieted-in the ¡lull and frée: enjoyment, of .her .jurisdiction and-, sovereignty over the same; • “ and the' title, jurisdiction hñd - sovereignty of sáid state of Rhode Island be confirmed ánd; established by the- decree of tbis honourable Court, and that your-complainánt may'have such other and further relief in the premises, as to this honourable Court shall seem meet, and consistent with equity and- good' conscience.”'
    Among the allegations -of the bill, it appears .'that a commission-for the estáblrshm'ent of thé partition line between the two colonies, was appointed by thé. ¡respective-focal governments thereof;, and that the commissioners, on 19 January,. 1710-11; agreed upon and established. the line, as- it now is, and- always before had been Known, possessed and established, But the complainant seeks for various causes which are in the bill enumerated, to set aside this .'agreement and adjv dication of commissioners, as null and void.
    The respondent has filed a special plea in bar, to the complainant’s demand, grounded on the arbitration, award, and settlement made by those commissioners'; and -a constant-and uninterrupted- poásession under it fon more, than- a eentury': 'and- has answered -in full all the allegations by which the- complainant seeks to vacate this' award. And thé respondent well- hoped it would have been -the pleasure of Rhode Island to have discussed the merits and effect of this ancient adjudication; but when her learned counsel, under an order of this .Court' to. answer the respondent’s plea, filed a general replication, they accompanied the same with-notice of an intention to move -to withdraw the same; and have since, intimated- a desire to change and amend thé tenor-of the bill-itself. To all this there would be no: other objection but the inconvenience of -delay, and the trouble of keeping, open, a litigation so, extensive in its .operation. To bring the whole matter to a speedier issue, Massachusetts presents only a single point of her defence.
    A motion is now made -to -dismiss the bill] for Want of jurisdiction.
    ■In establishing the government'of the' United States, the. 3d article of- the constitution,'and second section, provides that the judicial power shall extend-, to all cases in law and equity -arising under this constitution, the- laws of the United States, and treaties made, or. which shall be, made under their authority; to all cases affecting ambassadors, other public- ministers and consuls; to all cases of admiralty and maritime jurisdiction,; to controversies to which the United' States shall he a ' party;, to controversies- between two or more States, &c.; iu all cases affecting ambassadors,-other public ministers- and consuls, and those in which a state shall be a party, the Supreme-Court shalkhave'original jurisdiction.’
    Whether .the subject o,f the' present suit is a controversy betwqen states, within the meaning of the constitution; and-whether, if it be so considered,.a law of congress is necessary to.the exercise of judicial power by this Court in the premisesand -whether, if -such law be-necessary, any sufficient action has been had by congress to authorize judicial proceedings, arc questions, which, under this motion, are to be examined and decided.
    In support of the motion to dismiss the bill, it is contended, that this Court has' no jurisdiction over the present suit:
    ■ 1. Because of the character of the respondent, independent of the nature of the suit. ..
    . 2. Because of-the nature of the suit, independent of the character of the respondent.
    If the first of these propositions can he .maintained, the result is, that in the present state of the law,’this Court-cannot entertain-jurisdiction over a state of this Union, for any cause. If that may be doubtful, and the second proposition is established; it will-result in this, that the subject matter of this suit, being for sovereignty and sovereign-rights, is beyohd the jurisdiction of ,a judicial court.
    To the-jurisdiction of a court „of the United Status in every case; two circumstances nust concur. 1st, The party, or the subject of ■the suit, must be one to-which the judicial power of .the government extends, as that power is'defined by the constitution; and, 2dly^ There must be some'rule of decision- established by the supreme. power of the, country, by the administration of which the right rif the parties to the matter in controversy'may be; determined.
    ■ The-government of the United States dries -not conde by inheritance, or succéssion into- any judicial power. In this respect, it. is essentially different from sill other governments .known.-in the history of the world. ■ Where á nation has been established by colony; .or by .conquest, there Was a foundation in the institutions of' the parent state," or the victors, on whiteh its municipal establishments should be placed. .Its own domestic arrangements, if It had -any, remained, until changed by paramount authority. Such was the case with, the states of'this Union, when they ceased to be colonies. Thegrivernment of .the-United States is á new government, beginning with the constitution. Although the confederation'was its prototype, there was no géñeral government/and certairily. no national or; federal judiciary,-until the constitution had. formed one. .'
    The'government of the United States may, therefore, exercise all,' but no moré than all the judicial power'..provided for it by the-, con-, stituiion/
    The third, article of that instrument , contains a declaration of the existence and, extent Of this new power.
    -It ascertains the parties/the' causes, and the.courts-for judicial- action. To a certain extent, it establishes the; rulé of decision; and; perhaps, this- particular branch of. the. inquiry into the jurisdiction 'rif the Court in this case, will- depend- on ascertaining how far the rule bf"decision, is carried by the constitution; because, if the party and the ■ controversy, and the rulé for deciding the merits of the controversy are, by "the constitution, given-to this-Court; -there can be no' impediment to its action in this particular.
    It is admitted, that by the express words of the constitution the judicial power of the United States extends to .controversies between two or more states. The party, therefore, may be within the operation of the judicial power; in case such a controversy as is contemplated by the constitution exists with one or more states.
    Does the term .controversies extend to all controversies?
    It Is to be observed, that.the word “all/’ which is prefixed to the other classes of cases, is here omitted. The judicial power extends to all cases under the laws of the United States; all cases' under the, treatiés made, &c.; all 'cases affecting ambassadors, &c.; all cases of maritime and admiralty .jurisdiction: but its. phraseology-is changed, 'and the universality limited by the omission of the word “all/’ when it relates to'controversies tó'which the UnitecbStates shall be á party, and to controversies between two or more státéS. The judicial power, then, does,not reach..to all'possible controversies,!» which the United, States shall be a party* of between twp or more states.-
    What are the limitations.? The fir?t are- those which - are made by the character of the tribunal;' and'are included in the, terms judicial power; and-the words .“ law and bquity,” which precede, theenunieration of the subject, matters of judicial-cognizance. ..
    - Alttiough'the government formed by the constitution, was a new government, and took nothing by succession or custom; the men. who1 framed the constitution were educated to an intimate. acquaintanee with the judicial institutions of England;, whose laws were; to a.great degree, -.the foundation of our'own, and whose .language^ when used, by them in this relation, mttst be deemed to Nave a teeh-. nical meaning..
    A judicial power means,'therefore, a power to interpret, and' not -.to make the laws; ancf the terms “law and equity,’’, have reference tp that complicated code. bfi the mother , cotiptry;' extensive, but not universal, and limited in its operation by Well.settled decisions.
    A. limitation, on the broad tefms. of. the grant, is necessarily-implied in other branches of this power. The judicial, power extends to controversies to which the United States shall be a party,.and between a', state and foreign states; but it-would be manifestly absurd, to bring the political disputes of the day,( nullification, abolition* slaye.ry; and the controversies .which are beginning to arise between states concerning them; to the decision of a jury trial in a court of law.
    It is submitted, also, that controversies between,-.state? must be limited, to those which begin .with the states in that capacity,'-and does not extend to the antiquated controversies existing between the colonies, to which the states may or may not'have succeeded,- according to circumstances, which a judicial court can have no means to ascertain.
    But the proper mode of considering, this article of the constitution, in -relation to the judicial power, is' to take the constitution as a whole,, and keep constantly in mind the grand' design and intention of. its. framer?; always regarding it as unique, original, and consistent with itself. -The' grand object of its framers was to establish a ..common government for sovereign states, and .to have.that- sove* r.eignty unimpaired, whereyerit could.sp.be left;, without impairing the government' of the Union. • The-judicial power of .the United States, is a power, in this view- of 'the case, all. or .any part of which the. .government of the United. States might exercise, through the appropriate department -which was to be established.
    ..It extends to such, controversies between two or, more states, as are properly within the decision -of law and equity, in the precise sense.of those terms, arising between the states,'in virtue pf their relation as state,»; and to be-proceeded with ánd decided.aócording to the customary, forms of judicial proceedings', and the established doctrines of known and acknowledged laws. Every state, by virtue-of. its sovereignty, and-every citizen of every state,, by virtue of 'his allegiance -to such state, stands, absolved from th'e jurisdiction of the' judicial power of'the United States; until the government- of the United States, putting into operation so; much of. the judicial .power granted by the constitution as is necessary for the,purpose; has organized a court, established the rules of decision, directfed thé forms of-its process-, and designated the subjects for-its cognizance; hot exceeding, in any of these respects; the power- assigned to it by the constitution itself. ■
    If, therefore, there’ is no law regulating the, intercourse between the states of- thé,Union; there, is no rule for settling a • controversy that may arise between two or more states,- by, reason of suclrinter.course.' J R then should- be admitted that a law could be made binding the intercourse of states, and that one státé might sue another state for a breach of suchlaw; yet, until such a law exists, this-Court, can‘.entertain no jurisdiction, bécause 'the state, having , a character, above orfoeyonfi.the existing.,law is-not amenable' to any superior;- and the Court having no law to expound, cannot-.settle,a judicial controversy, depending, as all such controversies do; on.the-question whether the- conduct complained' of, has, ih the- case' presented,, conformed to, or departed from the obligations which'are imposed by law..
    The positions then, which, to carry out this doctrine, are next to be established, are:, that the jurisdiction of this Court .’in any particular case, depends on some adequate legislative provision for the exercise of its powers under .the constitution: -and secondly,, that-in point of fact, no law is now in force which. operates juuicially on a state of thi» Union.
    
      A legislative provision, it is contended, is necessary, for twp. purposes; first, to regulate the form of process from thé citation to the-judgment and execution, without which last, judicial'action is a mere mockery.; and secondly, to establish the law of the case, or fhe rule of action by which the conduct of the ligitants is to be .tried.
    In regard to -the' last, which, as the most material, may be' first considered, it supposed that, no doubt can exist as to the necessity of such'law, as a pre-requisite to judicial action. Judges.are to.expound the law, not to make- it; ' • The only pertinent question then is, does any-existing law which this Court can,recognise, act upon and regulate the intercourse between the states of. this Union ?
    It is supposed that when a nation is established, and becomes by revolution or otherwise a member of the family of nations, fit is, • ipso facto, under'the operation of international law, But not only does the doctrine of international law apply to .the nation, and not to the states of our confederacy; but the law itself is not the subject of administration by judicial tribunals, when it operates on coirimunities. Ambassadors are its counsellors; and its argument, the ultima ratio regum. If the principles of international law are made applicable to individuals in a judicial forum, it is bécause-'the'municipal law of the place has incorporated the international law as apart'of itself, and administers it by the force of domestic legislation. ■ The constitution may itself establish a rule of decision.' It does so in the-case of-treaties, which are declared to Be the supreme law of the land;.and it provides'that-its own provisions shall be binding on judges in all the slates. . Whatever difficulties might be found in a judicial administration of the constitution or a treaty,, between individual litigants claiming rights under them,- without the aid of a law of congress; they may all be done away without touching this case; because nothing is claimed by the constitution or any treaty of the United States to show the'right of the-claimant in the present case, or bind the respondent to any prescribed' course of action.
    The necessity of a law. of congress to .establish, by direct enactment, or hy implication, the code of the United States, has been admitted by this Court. Mait.in v. 'Hunter, 1 Wheat. 329. And it.is supposed by the Court, in giving its opinion in that case, that congress was bound to vest in. its courts all the judicial power of the government.
    Congress has judged differently, because it hás not appropriated all the judicial power of the government. But the question here, is not-whether congress is wrong in the omission, but whether, in a clear case of omission, this or any court of the United States can supply the defect.: In a very_ early period, of the history of this Court, it was supposed' that-the statés, like ¡individuals, were, amena-' ble to its jurisdiction,; and under- that impression it was intimated in argument, and'-seemingly sustained., by. the majority of'the Court, that the moment a Supreme Court is formed, it is to exercise all the .judicial powers vested in it-by the constitution,.whether the legislature have prescribed; methods- for, its--doing so or: nob- Chisholmé’s Exr’s v. The-State.of Georgia, 3 Dali. 419;. j Con'd. Rep..6;
    The opinion of the-Court was not unanimous.;' and. Judge Iredell’s dissenting opinion has become, by the 1 ijLh article of amendment of, the constitution, the.better authority. It is to be observed, that this-amendment does mot-change the text Of-the' constitution,, That remains the same.- The .amendment declares that the <ju liCial power, shall not be deémed to extend to a case,..which, by the .construction.of the Court it had in thé abové .case beeri made to reach. - It is-further to be remarked, that all the subsequent proceedings,of this Court in ¡regard to states' defendants, have, asi far. as they hive -pro-, needed, been fastened to. this case. But the- case being, overruled by a higher tribunal than even th'is august.Court, in a mode perfectly' legal,,it is submitted that.no.-.dictum, and rió principle promulgated in it,'can Have.the authority of law.
    The necessity-of a code' of laws.tor the-. ■ government of judiciál action being apparent, congress has attempted to'establish one. .This, is done, so, far ás it -is done at’all, by the 'judiciary act-of. 1789.
    This statute adopts, iri the 3.4th section, the laws of the states-as'a rule of action-wheré they cari apply. ■ But ás ho law of Massachusetts of -Rhode Island can embrace the respondent in this, particular mat- ' ter, there is by that section rio rule prescribed for the'present controversy.
    It. has beeri contended that the statute aforesaid, taken, in corifiecv-' tion with the constitution itself; e&tablishéd' a codé mixed and miscellaneous, máde up of the common law and equity practice of Great .Britain, modified.by our particular institutions, which sq^vés as the basis, of judicial action. To a-.certain, extent,' this is undoubtedly , so in many, if not all the o|d states'; but to what éxtent it is.true in regard to the United States, has been a debatable question, ánd is not yet de' mitely settled.-
    It is .not. necessary to settle it in thi's. case; because; if the.com-: mon law-and chancery law of England are in operation here, in. their utmost latitude and force, they do not-reach-the respondeat. The common law of England takcs no; jurisdiction over the-actions ; of sovereign states; nor is there any.-power in- chancery to hold, jurisdiction over a sovereign, without his-coh'sent..
    Such' is- the character- of the states, respectively, of this Union. This proposition it is not intended to discuss. 'Noman,w,ho has at all' studied the constitution of the country, can' fail -to haVe his mind made up on this point, on the'one side or the other.- It is main.tained’ by the respondent, that eyery American - state, is- a qualified sovereignty, and as such exempted by common law, (meaning thereby, the '/whole- judicial ..code of the -country,) from judicial responsibility/. It- is. not contended' that a law may not .be constitutionally -made ip reach a state. . The question under discussion is, whether the. present law extends tó ;a state. The present.law .is. what we term, by eminence, and for distinction, the cófnmoji law; and- it'is beyond all controversy, that’ the common law'operates On subjects only,-and* not sovereigns; and. upon property; and. riot . sovereign rights. ■
    - If the'constitution authorizes the goyernmept otithe Unitpd States to subject a state to judicial process and judgment, the government of the United States may pass--the laws necessary-f6r. the' pqrpose. But to declare what may. be done, is -not to declare what is done. If congress,* for any reason, has stopped short, Che judicial'- department is at the same point' brought to a stand. If it has adopted the common law, and nothing more, the; Court; can' do no more than-the common law. warrants. If the common law ..does .not extend its-jurisdiction over a sovereignty, neither pan -the Court.
    The-doctrine’ contended fpr is that alone which-prévents a'suit-against, the United States by every individual who' has a'demand in dispute. The-.cou?titütipn is as. unlimited in. regard tó-the United States'as the states. The., judicial power extends , to controversies to',which the United State? shall be a-party. And-in the’earlier.' decisions of this Court, it'is- maintained that it is tile same thing, as regards-jurisdiction, whether the par.ty designate4.be plaintiff or defendant. The state of Massachusetts, instead of soliciting congress for an adjustment of .its claim, might have instituted a suit in this- Court; obtained if it .would a/judgment, and levied its execution on a ship of the line, or'the arsenals of the .country.
    , The sovereignty of the United States, carried to -its legitimate Consequences, protects it. from this extravagant absurdity. But. Chief Justice Jay; when, in'his opinion in. the Georgia case he rpde over state sovereignties, admitted that the logical conclusion of his argument involved a liability on the part of the United States to á suit at law. He. avoids it, however, by the extraordinary suggestion that-i£ in all cases against states or individual citizens, the national courts are supported in all their legal and constitutional proceedings and judgments by the arm of the executive power Of the United States; but in cases of actions agáinst the United States, there is no power which the courts can call to aidGeorgia case, 2 Dali..478. ■ What is this but.an abandonment of duty through fear. It would have been better to adopt the maxim of"the English lord chief justice.1 Fiat justitia, ruat ccelum. The better answer is that by the ,law, as it stands,, no action, in a' judicial court can bé maintained against a sovereignty, whether state or national. That the constitution has,'in both cases, authorized, congress so to frame and pass laws that the judicial power may operate on the one and the other; but until that is dpne, any action of the judiciary would not- be to expound the law-of the-case, but to make one.-
    But thé United States are. sometimes sued. This is in cases of contract, or -other similar causes of ■ action,- in which the United States, dealing as a private eitizen-with other citizens, cohsents ‘to come into a court Of justice, and submit to the operation and construction of the laws of the land. The. laivs of the land reach -to' contracts.. The United States makes a contract; and when it submits, by' its own consent, to a suit, admits- expressly, that in the decision the law of contracts shall apply to its case. The United States makes a treaty; and, by the constitution, a-treaty is the law of the land. It claims for itself .land under that treaty; takes, possession, and cannot be pasted by a suit at law, in virtue of .'its spvereignty. But it waives its sovereignty, and' submits itá title under the treaty, to arbitrament by commissioners, or to a judicial decision in a court of law.
    Have the states consented to be sued? Unquestionably the provision of the constitution is their consent to exactly what that provision contains; but the inquiry is not of consent, but construction.
    Massachusetts does not propose to take herself Out of the constitution, or to withdraw from any of its obligations. She admits, that under certain circumstances she has agreed to waive her sovereignty, apd submit her controversies to judicial decision; but maintains, that before, sue can be called upon to do this, a court must be established, a law made, or a code propounded, suitable to the decision of her case; and the forms of process, m.ode of proceeding, character, of judgment, and means of enforcing it, be first .established by legislative authority. But the United States, never has submitted its' sovereign rights, or its acts in its sovereign capacity, to judicial cognizance, and never can; and the states^ as is contended, by agreement to submit their controversies to judicial decrees, never intended to include in- these controversies -questions of sovereign right, Tor the regulation of which no law .is . made ; and no law ever can be made by any other- power than themselves, and each one.-for itself alone. ,
    This'view of. the case is. greatly fortified .by consideringNthe 'law which the complainant desires this Court to administer. This indeed may be deemed to belong to the merit's of the case; an'd lt does so. But it is also an appropriate'subject of examination finder, the motion now submitted. One of the grounds of this' motion is,; that there'is no existing law of the country binding .on these pay-ties,- applicable to the controversy "between them, which this Court can administer. . This would be exceedingly obvious, if the 'complainant had presented his'title under the bull of Pope Nicholas V.,'‘ by. which he divided all the countries to-be discovered from. Africa to India; or under Alexander VI., in which he divided three-quarters of the habitable globe: Omnes insulas et terras firmas inventus aut" inveniehdus, detectas et detegendas, &<?;.
    The claim set forth-in the bill isj in the judgment of the figspondent’s counsel, equally'extra-judicial and Untenable.
    The state .of Rhode Island states its claim to be thus: By the charter giveh to certain persons by Charles First,'king;of England, bearing date the 4th March, 1638, the- colony, of.'Massachusetts was established, with a territory bounded on the south by a line drawn within the Space of three English miles, on -the south part Of ‘the said river called Charles river, or of.any or of every part thereof-That, a' charter was granted by Charles Second,' on or about 8th July, 1663, establishing the colony of Rhode Island, by which its northern boundary was defined in these, words: “on the north Or. northerly, by the aforesaid south or southerly line of Massachusetts-Colony or Plantation.” By these two charters, the boundaries.,of the two colonies were adjacent and conterminous.
    That after the vacating of the colony charter of Massachusetts in 1.684, and the granting a province charter in 1691which, so far .aá. this matter is concerned, established the same, conterminous'boundary by the same words; the government of Massachusetts, about 1.719, wrongfully possessed herself of a-tract-'of land more southerly than a true line would be drawn, which should.be run three miles'south of the river called Charles river, or- of any and every .part thereof,. “and extending the whole length of the north line-of the colony of Rhode Island, being more than twenty miles in length apd four miles and fifty-six rods in breadth, in the east end thereof, and more than five miles in breadth at the west .end thereof, and has .since continued .wrongfully to'exércise jurisdiction over the same.”'-
    From other parts of the complainant’s statement,' it .is apparent that the true place for -the .dividing line was then admitted by bothparties to be that described in the chatter, and that- it was drawn and the territory occupied by the province of Massachusetts on a claim of right; that the, place of location was the place designated in the charter. The possession of. Massachusetts, per fas aut hefas, from- that time; is admitted- .
    • The title of Rhode Islahd to the premises,' admitting she is right in the construction of the charter, and the. point from which the. boundary line should be drawn, (in. which,: at a proper time, it will be proved, she is' in great errof,) "depends on .the validity of .-a grant by charter of the .British' crown,..against an adverse possession of more than one hundred years; first by a province, and next by a state of the Union; through all the vicissitudes of-war, revolution^, and independence.
    If, therefore, such a charter, admitting its existence, gives ho title against an adverse ^possession"; and especially, if the declaration of American independence; and the subsequent formation -of a federal government,,to be judicially-noticed by this Court, have, vacated the law, or supposed law, on which the claimant rests its title, and this so plainly, that the charter cannot be inquired of by the Court, but that under, the. constitution it is bound by events subsequent to the declaration of independence, in all that respects' states, because the. states were.thereby created;1 then, even under this motion to dismiss for want bf. jurisdiction, the bill must be dismissed., •
    Such is' conceived to be the case, The state of Massachusetts makes no claim for herself; and. admits none for Rhode. Island, by .force or virtue of any grant,-charter, or authority from the British crown,. Whatever might have been, in ancient times, the validity of these instruments of-.royal power, they ceased, at the .declaration of .American. independence, to have any judicial operation .on the great corporations or colodies they had contributed to establish. Massachusetts, when she became a state became so in the integrity of her whole territory, as it was then possessed by her, whenever pr however acquired, by grant, charter, .purchase, treaty, Or force of árms, claiming her _actual possession as .the ultimate'evidence of right, and denying that there.then existed, or yet exists, any human tribunal .that can-lawfully inquire how or by what megns that possession was obtained'; or that' any authority exists to determine the limits, of an original state of the Union, in any other way than by determining whát it was,'de facto, on the 4th July, 1776.
    ■ So far as regards Great Britain and. other foreign nations, the treaty of peace in 1783, settled the exterior'boundary of the United States; but in tyhat proportions it_.was owned by the thirteen sovereignties, then commencing a political, existence, was to be adjusted by themselves. This adjustment was.a matter of agreement then.to be made, or to rest on the fact of possession; which,- admitting no higher-title, and capable, of no higher proof, assumed the right from the,,exercise of the right: and. it would now be .as wise to inquire how the seven Saxon kingdoms, of Great Britain were established, or to. define the limits' of the héptarchy-,-.as.to attempt to decide what constitutes a state of the American Union, beyond the fact that so it was .when -the nation was proclaimed independent, or the confederacy was established -under the constitution ' .
    There have been many décisions in this Court affirming the original validity of British grants of land, and of government. It is .not proposed to set up any. principle militating with these decisions. A careful examination of each of them, will show a distinction supporting the doctrine- now contended for. .
    Discovery or conquest are, no .doubt, well recogniséd titles, from which to deduce, ab origine, grants of land, and political government. But these titles carry with them, by their very terms, the idea of possession. The discoverer or the conqueror, is the only person in possession; and by force of his possession so acquired, he establishes a government, marks out a-territory, or conveys title to. the soil. The-grant is a contract which the grantor cannot vacate; but .it was never doubted, although the case has never come into judgment, that it might be surrendered or abandoned by the grantee. But a corporation, .and much, more a colony so established by the. right of conquest or discovery, is not a private, but a, public, political institution.
    ' To maintain that it was inviolable by the crown, was the doctrine of the patriots of the revolution; but to-, deny to them the .power of abrogating, dissolving, annihilating it, is to bastardize the revolution ■ itself. If the revolution did any thing, it was to cancel and annul these royal charters; and the same right of conquest, by which the king of England obtained power to make a political government here, gave to .the states the right to destroy it.
    In the Dartmouth College case, Wheaton’s Reports, the only important question was, whether the corporation then in question, was a public or private corporation. It- was admitted that, in the former case, it was repealable by the state. That-a colony was a' public institution', and partaking the character of a corporation, is ünden-able. Indeed, Massachusetts wTas summoned into chancery as a public .cor-, poratión, in the year 1684, and judgment rendered to vacate and -annul hei; charter. But the revolution, the declaration of independence, the formation of the constitution of the.United States; are acts of higher authority than the decree of the lord chancellor. They dissolved the. government of the colony, and the .colony itself.
    The people thereafter claimed and possesséd the country by a new title. Sovereign rights weré-assumed by the' states; in their'character, of public .communities, claiming Ae right of self-govérnmerit over the soil then in their actrial possession; and the territory now clarified by Rhode Island, whatever it was before, then was, in fact' afid by possession, ail integral 'part-of Massachusetts.. It was the state,- as much as Boston or Salem. All other titles merged, arid the charter waS-at an end.
    . Neither- can the state of Rhode Island claim' any thing -by virtue of a charter granted to the colony of Rhode Island, by the En.glisfi crown. Rhode Island, by her own act of independence, vacated that .charter, arid remitted herself to her better -title- of possession, by which, she now holds'the towns of Bristol, Warner, Barrington, Somerset, ¿Little Compton, Tiverton, and the fine lands of Mount Hope and Poppy Squash;' a territory almost half her actual extent,, and unquestionably belonging to-Massachusetts, as part of the original colony of Plymouth,1 which was united in one .colony, Massachusetts, in'1691. Baylie’s Plymouth, part 4, p.' 50; Morton’s Memorial; 480. For the impossibility' of being governed by the charters, see Bancroft’s Hist of U. S. 83, 84, 137, 138, 209, 210, 309, 313, 364; Mass. "Hist. Soc. 1st vol. 205, 412, 442, 396; 2d vol. 244.
    Some questions may bé proposed on this subject relating to the rights of the complainant under his assumed title, and the Supposed obligations to the respondent, which must be answered before" this cause can proceed,to hearing and judgment.
    Can a sovereign state be sued for acts done'in virtue of,, or by claim of right in its- sovereign capacity? If Massachusetts had marched across the border supposed by "Rhode Island to be the true line, and, in a belligerent attitude, taken possession of the disputed territory; is such act within the cognizance of this Court, subjecting the state to action of trespass, quare claqsum fregit?
    If such suit is'maintainable, by what law is the action of the Court to.be regulated in cases where the- constitution lays down no rule of proceeding, where the subject is not within the scope of any treaty, and is not defined by any statute law of congress ?
    If a státe may be made amenable to a judicial court, is she to bé answerable,for the acts of a colony to which she has succeeded ?
    If she is suable, has the state sued, the common rights of other defendants, to plead accord and" satisfaction, arbitrament and award,' title by prescription, .or the bar of any statute or common law limitations ?
    If a state takes all the estate and appurtenances of its colony ancestor, to whom it claims to succeed, is it what such colony had in possession when it ceased to exist; or may it lay claim to every thing to which such- colony had a paper title, although disseised by the intrusion of some neighbouring state or colony?
    If a state claims the rights of its colony ancestor, by whát rule of what law are such rights to be ascertained ?
    If such rights are of real estáte, will such estate pass to the colony in the first instance by deed only, or by livery of seisin ?
    ■ If the suit is for sovereignty or sovereign" rights, is,there any "title" to- such claim but possession ?
    If, in the. case of the South American provinces, the United States delayed to acknowledge their independence and nationality, so long as there was a contest about it, and the possession was not secured;, and if such be the principle of the law of nations, is not the same doctrine to prevail whether this sovereignty is claimed for the whole territory, or for a part of the whole ?
    But the more significant quéstion remains. Can the allegiancé of five. tbtíusánd American .citizens, natives of Massachusetts; and owing her the duties of citizens, of of one such, be changed by a decree of this Court;'without their consent,'without notice to .them to-agree or disagree, as if they .were serfs on the soil of Russia: because one hundred and twenty years ago, the prodigal monarch of England put. his Signature - to a piece of parchment, to gratify the /varice or the ambition of.his courtiers?
    The -want of jurisdiction is further maintained by considerations.' applicable to this-matter, arising both before and subsequent to the decision of the controversy-bn its supposed merits.
    . -The merits of any case depends on the conformity .of a party’s conduct to a previously prescribed rules of law; but, if there be no such rule, there can be .no test of s'úch merit, and. no..decision upon them. But,.in addition to-this, a question arises oh the form of. process. By. what rule- of law can a state be' brought before this Co.urt, and by what, form of execution^ known to the laws, can ,the judgment of this Court.be cárried into effect?
    It is undeniable that;the power to direct the process, to declare its nature- and effect, and the mode in whictb the judgment of the. Court shall be executed, must be • prescribed by the legislative department.-
    This may be done, possibly, by implication or reasonable inference. It is certain, no .such provision is made, by direct enactment. ■ In the.case of. New:-Jersey v. New Yo'rk, 3 Peters, 461* 4 Peters, 284,' where this, matter has been considered;' it is admitted, that there is no direct provision of law, but the. power to summons is made to pest on an analogy to individual suitors. ‘ That of execution is not at all considered by the Court,
    Now/it is contended, that the original analogy that was supposed to. exist between sovereign states, and private citizens, never did exist. The, 11th article of Amendments to the Constitution-has so declared. . Before, that amendment, and under, the -broad extent of power erroneously, assumed by this Court, a state was, indeed, but in- the character of .a private corporation; and it, might well be ■thought, on that hypothesis, that the-power to try a party by a known- rule of law, involved the necessity of having the right to bring such party into Court for trial and judgment;, and that such power, as it extended to,reach other suitors, might also reach states,' between whom and other ^uitors, as the Court construed the constitution, there was no difference. In the opinion of the dissenting judge, there -was a difference; and wh'erf the 11th amendment altered, the constitution, so-that, to a great extent, this difference is established, the consequence- seems legitimately to follow, according to the doctrines maintained by the dissentient.
    • It is now true that states were once, deemed mere OTdinary. suitors, and that the general provisions of the process act, reached states as other suitors, because there was not recognised to be any difference among them.- The process act reached only ordinary suitors. States.are not.now ordinary suitors, and the process acts reaching only, to' ordinary suitors, do' not reach them.
    The power of the courts, of the United States, to issüe writs not ' specially, prdvided for, is limited. They are confined to such .as are conformable to the principles and usages of law. Judiciary act of 1789.
    ; There are no principles of law, meaning the common law, or the statutes-of the states, or of congress, that embrace a. sovereign state. There is no usage in such cases. On the contrary,'the usage is directly adverse. It holds to the exemption of such parties;
    'This difficulty occurred to the complainants. In 1830, the senator from Rhode Island, who signed the bill as solicitor, in 1832, introduced into the senate a bill, with minute provisions to remedy the defect. It did not pass. In 1828, the senators of New Jersey introdimed a like - bill to prepare for the controversy of that state with New; York; It was not adopitéd. Every legislator who' has been called to consider this subject, has'admitted the-defect of legislation;
    2. This Court has no jurisdiction, because of the nature of the.' suit. It is in its character political,; in the highest degree political; .brought by a sovereign, in .that ¿vowed character, for the.restitution of sovereignty. The judicial power of the government of the United States, extends, by the constitution, only to cases of law and equity. The tetms have relation to English jurisprudence. ■ Suits of the present kind, are not of. the class belonging to law or equity, as administered in England. 1' Black.,Com. 230, 231; 2' Vésey, jr., 56; Nabob of the Carnatic V. East India Company, 3 Yesey, 424; Bar-’ clay ,v. Russell, 1 Vesey, sr., 444. Penn v. Baltimore; where the agreement, and not the political right, was -the subject of litigation. See Lord Hardwicke’s opinion; New York v. Connecticut, 4 Dali. 4. By the judiciary act of 1789;- the jurisdiction,of the Supreme Court of the United States, where a state is a party, is confined to cases " of a civil nature.”
    
      This qualification was not in contradistinction to criminal cases; for no state could be, prosecuted by ánother state, as a criminal. It is intended to have -reference to .cases not political, or involving questions of sovereign power between states. 'YYiscart v. Dauchy, 2 Dali. 325. See, also, Drafts of the Constitution; printed far‘¡the ■ members of the convention, and for'their use1 only, and the successive amendments made, and in manuscript on said pointed drafts;- in the collection of the Massachusetts Historical Society.
    ' The complainant .has no equity on his own- declaration. It is a Stale demand, in the language of the books; and the fact appearing on the face of the bill, need not be pleaded., Reckford et ah v, Wade, 17 Yesey, jr.; Story on Equity, sec. 1520, and the Notes; Middlecot v. O’Donnell, 1 Ball & Beatty, 166; Hoveden v. Lord Arinersley, 2 Scho. & Lefroy; Paul v.- M£Namara, 14 Vesey, jr., 91; Gifford v. Hart, 1 Scho. & Lefroy, 406.. *The court will not permit a party to lay by and wait until the subject of dispute has acquired great value, and become connected with^great interests and diversified relations.
    Agaip: if the parties are to be treated in this Court as individuals, or private corporations, or even as states with only the rights of private litigants, then the bill must be dismissed, because, if it seeks an adjustment of boundaries, without claim to the soil; such a cause is no subject of equity jurisdiction, Atkins v. Haton, 2 Anstruther, 386; Fenham v. Herbet, 2 Atkyns, 4S4; Welby v. Duke of Rut-land, 2 Atkyns, 391; Wilier v. Smeaton, 1 Bro. Ch. Rep. 572; Bishop of Ely v. Kenrick, Bimbury, 322.
    There is no such - case in this country, nor in England,- for jurisdiction only between towns or countries.
    (f the boundary is- ascertained, and the defendant has encroached upon the complainant, the right between individuals must be ascer^ tained in an action at common law, and not by bill in chancery; and • the right must, in all cases; be settled at law, before chancery can adjust the boundaries- See the cases above cited..
    The only title, in equity, to which the complainant can appeal, is that by which an equity is administered, not applied to agreements generally, but intended to preserve family honour, and family peace. Let this be applied to the sister, states, in the great American family . of the, nation. It will leave undisturbed and unchanged, what has so remained for more than a century. Storkley y, Stórkley, 1 Ves. & B. 30.
    
      Mr. Hazard, for the state of Rhode Island:
    The merits of this motion, sir, might have been more satisfactorily examined and discussed by the complainant’s counsel, if we could have had the motion, and the specific grounds of it, put into writing, as we were desirous, and' requested that they should be; but without effect.
    It does appear to me, that a motion which goes to cut off one. of • the most important branches of the jurisdiction of the Supreme ' Court, exercised by it from its first establishment, and to. deprive a .party in court of the benefit of that jurisdiction,'and of her only-remedy‘for aggravated injuries, (as she has a right' to-insist in resisting a motion which would deprive her of a hearing,) -that -such a motion, and the specific grounds of it, ought-to be' presented in writing, with precision ■ and fulness, arid with adequate' notice of them to the opposite party, to enable him -to meet them, and to know what he has to meet. But we. are now to answer this motion, verbally made; and to' seek for the grounds of it,- ás-they are scattered through a long and desultory argument; in the course of which, those grounds have taken sor many different shapes, that it- is .not easy to recognise them for the same, or to reconcile them one with another. This being the case, it 'is not surprising that the counsel refused to put the specific, grounds of their motion into writing. I have, however, endeavoured to make ihy self acquainted with the real.question to be decided-, and, with permission, will now present such views as I have been able to take of it.
    Has this Court jurisdiction oyer the subject.matter of, and over the parties to the bill in equity now pending before it? and has-the Court now' power to proceed to the hearing and trial of the cause, and to make a final decree therein? If neither bránch of this question can be answered in the negative, there can bp no good' grounds for thé -present motion'; however those grounds may. be shifted, or multiplied, or repeated. . Allow me to consider the first branch' of the question. It is evidently purely a constitutional question,' arising Under ‘the constitution, -and Only to be tried arid settled by it Turning, then, tb the constitution, we find it there declared, that the judicial' power shall extend “to.controversies between two or more, states;” and that in those cases “in which a state shall be a party, the Supreme-Court shall have original jurisdiction.”
    • These are the words of the constitution; and this is a controversy between two states; and the state of Massachusetts is a party to it: qnd the .state of Rhode,Island is a party to it; and this controversy is now pending before, the- Supreme'Court. But it is.contended by the counsel, that although the words of - the .constitution do embrace this controversy, yet it is ,not within the-meaning "and intention of that instrument;- and that it was the intention of its framers to exclude such controversies from- the jurisdiction of the Court, This is dealing with the constitution ás" Peter, Martin-and Jack dealt with their father’s will. But as it is the only-pretension thatcpuld .be set-.up against the constitutional-jurisdiction .of this-Court, it is important'for us-to inquire, strictly, what was the meaning and intent of the framers'of the constitution, in'this respect? And here, fortunately, nothing, is left'to conjecture pr tradition: The explicit, unequivocal-intention of the framers of the constitution upon this subjectj is matter of authentic public record. X beg leave to trace this .constitutional- provision -for preserving- harmony among the states, from its origin. Before th'e revolution, all controversies be-, tween the colonies or. provinces,'concerning boundaries, wfere carried up to the' king,In council; and. were by him settled; There was one such controversy between these same parties, Massachusetts ánd Rhode Island;, "and another between Massachusetts and New Hampshire; both of which, were so settled. When the states asserted'their independence, that tribunal, df . course; was annulled. But the new states felt the necessity of immediately establishing, in its place; a conipetent tribunal of their own, with full jurisdiction over those dangerous controversies- And this they did in the articles'of confederation; the 'ninth, article of. which, provides that u congress - shall be the last resort,, on appeal, in all disputes and differences now subsisting, or which may-hereafter arise, between ’two or more states, concerning boundary, jurisdiction, or,any other cause whatever.” Congress to appoint judges to constitute a court fop hearing and determining those causes. “And the.judgment and sentence-of the court to be appointed in the manner before described, shall be final and conclusive; and if .any of the parties shall refuse to submit-to the authority of such court, cir to appear,-or defend their'claim or cause, the court shall, nevertheless, proceed to pronounce sentence or judgment, which shall, in like manner, be final and decisive ; th’e judgment or sentence, and other proceedings being, in either case, transmitted to congress, and lodged among the acts of congress, for the security of the parties concerned.” " And congress did, accordingly, establish and organize-the court, called the “ court of appeals.” And that .court took cognizancé-of, and decided a number of jurisdictional ' controversies between states;- and among others, one in which Massachusetts herself was a party, and acknowledged- the jurisdiction of .the court,; arid submitted to its decision. It must be recollected* that the territorial-descriptiqñs and boundaries, containéd in the. colonial grants and-charters, were necessarily loose and defective;, and that in the progress of.the settlements,.in. adjoining colonies, controversies • must unavoidably arise as to their respective -limits.. And the .greater the certainty of such conflicts, the greater, was the necessity of providing an impartial tribunal for the peaceable adjustment.of them.- The language of the ninth article, just, read,'is descriptive of the state of things at the time: “disputes and differences: now subsisting, or that may,hereafter arise between two or more states, concerning boundary, jurisdiction,” &c.
    The court of'appeals retained and exercised its jurisdiction over these controversies, until the adoption of the present constitution; when its place was supplied, and the exigency provided for by the establishment of a national judiciary, with -full jurisdiction over the same controversies; And, by the twelfth section of the “ act for regulating processes,” &c.,-pássed in 1792, it wá's enacted*'“that all the récords and proceedings of the court of appeals, heretofore appointed, previous to the adoption of the .present constitution, shall be deposited in the office of the clerk of the Supreme Court of the United States,:who is hereby authorized and directed to give copies Of all such records and proceedings, to any person requiring and paying for the same, in like manner as copies'of .the'records and other proceeding's of the said court are, by law* directed tó be given; which copies shall have like..faith and credit as all other, proceedings of said court.” ‘
    ■ The counsel of Massachusetts have' expressed the idea that the United States, came into existence with the present constitution;, .and that'Massachusetts, as.one-of them; is\ bound by nothing before that date- This is' a strange'-conception, indeed; Not, only the states severally; but the' United States, came into existence with the declaration of independence;..and thé'first of' the ,articles of confederation" ordains, that “ the ! style of this confederacy shall be The United States of America.’ ” - It was “ to form -a moré.perfect union,” and to strengthen the-confederation, that the convention, was called .which formed this constitution. And here are the concluding words of the resolution of the old-congress of 1787, recommending the call of-the-convention: “For the sole and express purpose'of revising the articles of confederation,” &e. The con1 vention- met; and in revising the,, important ninth article, changed the word's “.disputes and differences;”- to the word, “ controversies,” taking .the words “ between two or more states”” as they-found them in the'article. • The tribunal was, of course, changed; for now an independent judicial department was established, ¡which had no existence, under the confederation. ' Not deeming it-proper, in a permanent constitution,,to designate párticular, existing, and (it might be hoped,) temporary disputes between states, they used the comprehensive word “ controversies,” as fully including them all; We do not - know that there were any other controversies, ah the time, between states, than those about boundary; and'if there were, they must have been comparatively unimportant; none qth&r were so likely to. exist, or to be carried to extremities; and, therefore, the article, after the words,-boundary and jurisdiction, merely adds the general expression,' “ or - any other, cause whatever;” apparently by way of precaution.' The delegates from'the several states knew that a number of those state.-controversies then still existed, and, that' moré migh ’.arise; and they’were fully sensible how all-important it was to provide against their-breaking out. The great object of the convention was (as expressed in the preamble to the constitution,) “ to- .form a - more perfect union, establish justice, insure domestic tranquillity, provide-for the common defence, ¡promote the general welfare, and secure the blessings,of liberty to' ourselves and óur posterity.” And hoiy was union to- exist? — -bow domestic tranquillity, amidst contention among the members? How was justice to be established, if the strong-were-permitted to.give law to thé'.weak? and how'were the. rights of individual states to be preserved; if left unprotected from the encroachments of stronger neighbours? And what would become of the harmony and integrity-of the Union, if-all its-members Were'not protected in the enjoyment of" their equal rights?
    But, in addition to all this, it is a remarkable fact, that this very question of jurisdiction, • which Massachusetts now brings- lip, after the lapse of more than- half a century, was directly'acted upon and decided by the conventiondtself; as appears' from the ¡récords of its proceedings. During its deliberations, the question, was distinctly brought Up, whether controversies between states, concerning jurisdiction and boundaries, should not be excluded ,fróm the jurisdiction of the courts. And the Convention decided that they should not be excluded. And the provision in the constitution, as it then was and still -is, was retained; and this constitution was unanimously agreed to by all. the-delegates. And, afterwards, the same question was discussed in the state conventions, and- this proyision was still retained and approved of; and the-constitution ratified by every state. And several years afterwards, when the eleventh amendment to the .constitution was adopted, and suits “against one of the United States by citizens of another state, or by citizens or subjects of any -foreign state,” were excluded from- the jurisdiction of the courts, the. remainder of the provision,, givihg jurisdiction over controversies between two,or more states, was preserved untouched; and the states thereby manifested- their continued approbation of that provision; and, accordingly, this question of'jurisdiction has long been settled in this Court, by its uniform practice.and decisions, in numerous cases, from its earliest establishment.
    - And now, what is it that Massachusetts has to say to all this ? I beg the Court to consider whether-every single objection, and the whole argument on her part, have not'been objections and arguments against the constitution itself, rather -than against -the constitutional jurisdiction of the. Court? In opposition to the- constitution, they come armed with political axioms, and abstract theories of government; and with the aid of Montesquieu,'and other learned writers, reason upon the science of government-, and the distribution of appropriate powers among the three great departments.
    Allow me, sir, to, present a summary of the principal objections and 'positions upon which the counsel of Massachusetts appear most to rely. They lay it down; that a controversy between states, concerning jurisdiction and boundaries, is political, not judicial, in its character; that judicial courts ‘can take cognizance only of controversies-strictly judicial, not political, in their nature; that the present controversy concerns jurisdiction and sovereignty, and is therefore out of the judicial jurisdiction of this Court; and cannot be acted upon by it, without ihe assumption of political power. And, in support of -their doctrine, the counsel have read a number of English- cases, and the opinions of learned English chancellors. . And what does it all amount to? Does it amount to any more than the plain, -self-evident proposition, that courts created by sovereign power, and subordinate to it, cannot exercise jurisdiction over sovereign power, nor interfere with its prerogatives? Let us see if this is not the whole substance of the doctrine., In illustration of their doctrine, the counsel have referred to the controversies- between the colonies,,concerning their boundaries, and over;which the English' courts exercised no jurisdiction. And why did. they, not? It-Was: becáúse there was;a higher tribunal, which the colonies appealed to. The jurisdiction, in those cases, was in the-kjng himself:. - He made' the colonial ■ grants, and gave the. charters; reserving in them-all allegiance and. fealty to himself. He appointed the colonial governors; not excepting the governor of Massachusetts. Rhode Island almost alone elected her own governors.. He, the king, therefore claimed and exercised jurisdiction over the colonies, as their feudal lord. But, had he so pleased, he might have'transferred his royal jurisdiction over those controversies, to any of his courts'.- And had he done so,.those- controversies, whatever their character, and by whatever name .called, political or civil, .would have become the proper subjects of judicial, investigation and decision! Another case, much relied upon by the counsel of Massachusetts, was that of Thé Nabob of the Carnatic against the East India Company; of which case, the court of chancery déclined taking jurisdiction,because'' one of the parties was a sovéreign prince, and the other, (although. subjects óf the crown,) acting by virtue of its charter as an independent state. It seems that, in' this .instance,- the charter of" the company had placed it above'the law. But suppose .that its Charter had subjected it to the jurisdiction of the court of equity, in any controversies it might have with any of, tbe surrounding'princes, would-the character of -the parties,, (th'e foreign prince assenting .to the jurisdiction,) or the nature of the controversy, have formed any obstacle to the. exercise, of-that jurisdiction.?' And would not the' exercise of it have been strictly judicial in its character? The same plain- principles of exposition embrace' and dispose of évery case and instance which the counsel have brought, or can-bring in-support of their doctrine. All these cases are governed by the. peculiar, institutions of England,-and the structure of her. government, in its -various branches. No such question as this, of jurisdiction in controversies .between two states of this Union, ever could; arise in-the English courts. If this jurisdiction is vested in the-court,-by the' constitution,-.how preposterous is it to talk .of the nature of the controversy, or the character of .-the parties! Suppose the controversy is political in. its nature: wljat then? — Is there any reason in nature why it. should not be subjected to judicial investigation and'decision, as much as any other controversy? Suppose the parties' to it are two states: what then?--Is there any reason .in nature why they should not be governed' by the' laws and principles of justice, as much as'any other parties? All controversies, whatever their character and whoever the parties, if they are ever settled, and the parties will not settle them amicably, must be. settled either by force or by the judgment of some tribunal.. When the controversy is,, between sovereigns,'the sword is the last resort, the “ultima-ratio regum';” and the contest is waged at the expense of the blood and lives-of their.subjects. • But if thé controversy is submitted to some independent tribunal; that tribunal', call it by whatever name we may, must act judicially. It is not in my, power to perceive how the sovereignty of'Massachusetts is concerned, as7she alleges, in the settlement-of this .question. Even absolute sovereigns have submitted their controversies -about territorial limits, to independent tribunals; and ho one ever imagined that the sovereignty of either was affected by their doing so. ■
    But Massachusetts is not now possessed of unlimited sovereignty. All -the states, when they ceased to be colonies; became sovereign and independent. But they, were all sensible, that they .could not remain, so if they remained disunited. They knew that it was by union alone they could preserve their liberties. They did- unite; and, to-secure'their .-gréat object, they established this limited government of the Union, investing it with .a portion of their state powers, and at the same time restricting themselves in the exercise of certain other powers. Thus, both the federal government .and the state government are but limited governments; both equally bound by the constitution: and all acts of either, violating the contitútion, are void. And it is the constitutional province and duty of the Court to declare such acts void, whenever the. question of their constitutionality comes before it.
    - Fctrin.the formation of this federal .republican system, an independent judicial department was deemed to be a necessary .branch of the government, to prevent encroachments, and preserve a just equilibrium; and therefore, the constitution declares, that “ the' judicial power shall extend to all cases in law or equity arising under this constitution.” . And every decision of the Court upon the constitutionality of an act, either of congress or of a state legislature, concerns, to use the .language of Massachusetts, their respective jurisdictions. How absurd, then, is it, to contend that the judicial power does, not extend to political questions, or to questions in which the jurisdiction of a state is concerned. The only question here is, whether thestatés, by the constitution which they formed and adopted, did •confer this jurisdiction upon the SupremeCourt. And is it not amply shown that they did confer it, and that tney explicitly declared it to be their intention to confer it?
    And is it for Massachusetts to gainsay this? Massachusetts possessed a larger sitare1 of sovereignity under the confederation than, she does under the present constitution. Yet she; then agreed and assisted in constituting the. coürt of appeals, with full judicial powers over this very controversy.;, which was one of the .then' .subsisting controversies.concerning state-boundaries arid jurisdiction, specified in. the 9th .article. In the convention', also, which formed the present ■constitution,'Massachusetts agreed to invest this Court with the'same jurisdiction. And again,-in her state convention, which ratified tbe constitution, she approved of and adopted this provision. And, during all this period of timé, Massachusetts had subsisting controversies.with .her neighbour states, concerning her territorial boundaries and jurisdiction; particularly this -controversy- with Rhode Islarid, arid -another with the state' of Connecticut, of precisely the same character; which last was not terminated until the year 1801. Massachusetts, therefore, by her own consent and acts, gave jurisdiction •to'this Court over the present controversy, as far as her- consent and acts could give it.
    Taking it, then, for granted, that it -is fully shown that “ this Court has jurisdiction over the subject matter of, and over tbe parties to the bill in equity how pending before it,” I will proceed to. the consideration,of the 2d question: “ Has the Court now power to proceed to the hearing and trial of this cause, and to make a final decree thereon ?”
    ■ ' Mr. Justice Barbour asked My. Hazard, if he could point out any process by Which the Court could carry a final decree in the cause into effect, should it make one; For instance, if an application should be. made, by Rhode Island' for process to quiet, her in her possession, what proeéss could the Court issue for that purpose ?
    Mr. Hazard said, that he had .by no means overlooked that important question, but had given to- itp the fullest and most attentive'consideration in his power. But he had thought that it would be.proper to'reserve that question for the.last to .be considered; as in point of order it appeared to be. At present, he was ' desirous of showing that the Court had full- power, and ought to proceed to the hearing, and to make a final decree in the cause.
    ■ ' And what is there to prevent this proceeding? The Court have jurisdiction over the subject matter and over the parties; and the parties, are here before the Court. The defendant state obeyed the subpoena issued from the Court, and came,in more than three yearis ago; and -tóok upon-herself the-defence of the -suit, and put in her plea and answer thereto. At another term, she applied .to the Court for an order upon the complainant-to reply;_and, at the last .term, she made a written agreement-with the complainant-respecting amendments of-the bill and pleadings; and she is now here in-Court? What is there to hinder the cause from proceeding ?
    Why, it is contended, in the first -place, that consent of one party cannot give jurisdiction to the Court; and authorities have been read to this effect. No. one doubts, that when it appears by the record or otherwise, that the Gourt has nc jurisdiction of the subject matter of the complaint; the consent of a party cannot confer jurisdiction. But when the Court has jurisdiction, of the subject matter of the suit, the party defendant can 'consent .to appear, and his appearance is conclusive upon him; even although if he had not appeared, he might not have been reached- by the process of -the Court. . “ The appearance of the defendants to a foreign-attachment in a circuit court of the. United States, in a ^circuit ■ where' they do-not reside, is a waiver of all objections to the non-service, of .process on them.” Pollard v. Dwight, 4 Cranch, 421. “An appearance by the defendant cures all antecedent irregularity of process.-” Knox v. Summers, 3 Cranch, 496»
    But Massachusetts has raised.a number of other. obstacles to. the Court’s proceeding to a hearing.of this cause. The following, I believe, contains the substance of them all:
    They are, 1. That the sole province of the Court is to( expound and administer the law; and that here is no law for .the Court:-to -expound or ad minister.' ..That congress has passed.no act defining the controversy; no act.prescribing the rule by which to try it; no, rule of decision. 2. That by the Í3tb section of the judiciary act Of 1789, congress has limited the jurisdiction of-this Court, where a state is a party, to controversies of a civil nature; which this controversy is not, being political in its character; and that,- therefore, congress meant, to exclude controversies 'of this character from the .jurisdiction. 3. Congress has passed no act providing the process necessary to enable the Court to exercise its. jurisdiction in the case. 4. That the Court possesses no power to carry a final decree ,in this cáuse into effect should it make one;, congress, as is alleged, having made- no law to enable it to do so.
    The last of- these objections, I will-- consider, presently,.by itself. And..'as to the rest of them, if this doctrinéis to prevail* what becomes of the jurisdiction expressly vested in the Supreme Court by the .constitution itself; and what becomes of the Court itself, if it is to be placed upon - the same footing as die inferior courts, which, congress has. power to establish, and of cpurse, to regulate? ' By the Bth s<'Jtion,.lst article of the constitution, congress has power “to constitute .tribunals-inferior .to the Supreme Court.” But the Supreme Court was ordained by the constitution itself, and necessarily possesses all the judicial powers incident to such a court. Otherwise the constitution might be defeated, and the Supreme Court rendered a nullity by the act pf another and but co-ordinate branch of the government. But congress'has. ho. power to deprive. this. Court of it's constitutional jurisdiction, nor to restrain it-in-the exercise of that jurisdiction And this Court would' declare unconstitutional and-,void any act of congress having such an object.
    The case of Martin v. Hunter’s .Lessee, has been referred .to,,, and much stress put upon some general remarks of Mr.'Justice Story, who .delivered the opinion of the Court in that case.- Those remarks; were concluded .in . the-following words, which were not-read, but. ought to go with them: “ We do not, however, place any implicit reliance ¡upon the distinction which has.been,stated and endeavoured ■ to be illustrated.” But what shows conclusively that the counsel ajpe wholly mistaken in their understanding of tha meaning of those remarks, is the fact, that in the case of New Jersey v. New York, which was before this Court fifteen years after that of Martin v. Hunter, the Court, of which that hon. judge was one, not only took jurisdiction' of the case,, although the state of New York had refused to appear, but decreed and ordered,-, that the subpoena in this case having been returned executed sixty days before the return day thereof, and the defendant not . appearing, .the complainant be at liberty to proceed ex parte;.
    But it is wasting time, I-fear, to dwell upon such objections, when it has been so clearly shown that these' cases were expressly and intentionally included in the jurisdiction of this Court by the constitution. I was quite at a loss to understand what was meant by “a rule of decision; arule to try the.case bys” until the counsel enlightened me by inquiring how, without an act of congress, the Court was to ascertain which state was right, and which' wrong; alleging that, there being no such act, the Court could not proceed by the rule of the common law, or that of the civil law, or of any state law.
    This is a novel idea. Such an idea was quite beyond the conception of the men who framed the articles of confederation. . It did not enter into their heads that any thing more was necessary to be done,to meet the exigency, than to establish a competent court, with sufficient powers to' call the parties before them; and to try .and determine these controversies in the same' manner aS they woUld any other controversies between any other parties. And it seems that the court of appeals, thus constituted, had the same idea of ,its province ánd duties, and found no difficulty in performing them; governing themselves by the principles and rules of justice, equity, and good conscience, and not dreaming that any different -rule was furnished by the common law, or the civil law, or -by any state law.
    The 34th section of the judiciary act has been turned to again and again, -as showing that congress had furnished a rule -of decision, as it is.called, in cases at common law; but no such rule for cases like the present. This is making a strange use of that short section of four lines, the whole purpose of which is to give efficacy to the local state laws, in trials at common law, in the courts of the United States, “ in cases where they apply,” says the section. That is, that cases arising under a local law shall be governed by that law. Thus, the state laws regulating the descent of real estates, or the rate of interest, for instance, ought, in all courts, to govern the cases arising under those laws. And this is th”e whole meaning of the section. The counsel have contended, that if any suit at all could have been instituted by Rhode Island, it ought to have been a suit at common law and not in equity. But no state law could apply to such a suit any more than to the present.; and there are very many, suits at. common law which are not governed by any state law.
    An expression (the word-civil) used in the 13th section of the same act is also suspected by the counsel, of containing an important secret meaning, which the counsel think they have discovered. They insist that by the use of this word “civil,” congress intended to take this controversy, and all of the same kind, out of the jurisdiction of this Court. Surély, the ■ counsel of Massachusetts must feel themselves undfer the necessity of going a great way for inferences, and set a great value upon very.slight ones, to draw them from such sources, ás these. The .words relied upon, are-“that the Supreme -Court sh.all have exclusive' jurisdiction of all controversies of a civil nature, whére a state is a party,” &c.
    The plain object Df congress was to withhold from the inferior courts.jurisdictioñ in controversies between two or mofe states. And to do this, they gave to the Supreme;Court exclusive jurisdiction in those cases, instead of original jurisdiction merely, which it had by the constitution. The word-- civil is properly used, because all' controversies which do or can exist between two or more states, must be of a civil nature, and none other; unless they engage in war, which they have bound themselves by the constitution not to do. The word civil does not mean amicable or peaceable; actions of trespass arid of ejectment are civil actions. ■ Civil is technically and generally used in contradistinction to. criminal.1 There is not the slightest ground for supposing that the word, civil was intended to be used in contradistinction to political. Congress would never have taken so blind a way, so unintelligible and futile,, to effect such an object as the counsel of Massachusetts wish to effect. Nor can any such distinction be made. If this is a political controversy, so is it a civil controversy. And if. such á distinction could be forced upon the words, it would bring the section to this construction: that the Court is left, to its original jurisdiction derived from the constitution, in this and other' like controversies between states; but does not take exclusive jurisdiction of them, by virtue of this section of .the judiciary act.
    But, there, is another word in the front part of this’ section, which, in its plain, common sense meaning, I think, is much more significant than the word which the counsel. have endeavoured tó render so Cabalistic. And that is the word all — all controversies. This same word, used in another place, has .been thought all-important, ápd great respect has b'eeii shown to it by the counsel of Massar chusetts. By the Constitution, “the judicial power shall extend, to all cases in law and equity; arising under this constitution,” “to all cases affecting ambassadors,” &c. “ tp all cases of admiralty and maritime jurisdiction, to controversies to which the United States shall be a party, to. ■ controversies between two or more states,” &c,. &.c. And because the repetition, of the word all is not kept Up throughout the whole section, it is inferred that the constitution intended to confér a less extensive jurisdiction in some of the cases'enumerated than in others.
    Now, congress, in framing the judiciary act, did. not deal in such far-fetched inferences. Congress saw no such meaning in that section óf the. constitution; and therefore it declares in this same 13th section pf the act, “that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party.’.’ Congress did not intend to alter the constitution.’ It merely expressed what it understood to be the meaning of the section referred to. Now, although I have no quarrel with the word civil, I-should not be willing to give the word all, in exchange for it. But, sir, why is it. that so much effort is used to induce this Court to believe- that congress is unfriendly to its jurisdiction oven these cases? This is not veby láwyerlike, nor, very respectful, to the Court. This Court will look for its constitutional powers to the constitution itself; 'and will .not allow any other department to construe that instrument for them. In many cases, this Court have accurately- defined, not only its own constitutional powers and duties, but those of .the other departments, legislative and ¡executive*,' as; by the constitution it, is authorized and bound to do on proper occasions; And, let me'ask, if congress possesses such power over the jurisdiction of this Court, why was it necessary for the states themselves to make the 11th amendment to the constitution, for the purpose, of taking away the jurisdiction in suits “against one of the States by citizens of another state, or by citizens or subjects Of a foreign state?” . But, -it is riot true that congress is unfriendly to this jurisdiction. There is no single instáncé in'which congress has manifested'such • disposition. On, the contrary, in this same section of'the judiciary act, we find it conferring exclusive jurisdiction, where, by the constitution, the Court had only original jurisdiction. And without any appearance of disapprobation', congress has seen this Court, fronl its earliest establishment, exercising its constitutional powers in these cases, and in others in which a state was a party; adopting Its rules of practice and proceeding, and its general,.permanent orders applicable to them; and prescribing its processes, and the service and return of them as occasion required.
    The third objection is, that congress has provided .no forms of powers to enable the Court to exercise its jurisdiction. This objection, I should think, was reduced tó a very, small size. The writ of subpoena was issued, served and returned agreeably to the general order of' the Court. And the defendant state obeyed that' process and appeared, took upon herself the defence of the suit; and I understood her counsel to say, that he should not urge any objection to this proceeding of the Court. And, if Massachusetts had refused to appear, the Court would have had it fully in its power- to have proceeded in the cause, as it did in that of the state of New Jersey against. New York. But Massachusetts has appeared, and is now in Court. Whát further process then is now wanting to enable the Court to proceed to the hearing of the cause. I know of none. Yet. the counsel of Massachusetts still insist that the Court cannot go on a step without an act of congress. Let me then inquire: 1. What has been done by congress upon this subject ? 2.- What has been done by the Court?
    ■ 1. A judiciary act was passed in 1789, at the first session of congress; and a--process act at the same session, which, with many additions, Was rendered permanent by a second process act passed in 1792. The 13th section of the. judiciary act, which gnes exclusive jurisdiction to the Supreme Court in these cases, has already been read. The -14th section,enacts “that all the beforementioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not especially provided for by statute, which may be necessary for thq exercise of their respective jurisdictions, and agreeably to the principles and usages of law.” The 17th section enacts, “that all-the beforementioned courts of the United States shall have power to make -and establish all necessary rules for the ordinary conducting business in said courts, provided -uch rules are not repugnant to the laws of the United States.” The process act, 1st section, enacts that “all writs and processes issuing from a Supreme Court or a circuit court shall bear test,” &c. .and shall be signed by the clerk, and sealed with the seal of the court.” The 2d section enacts, “that the forms of writs, executions and other-process, their style and the forms and mode of proceeding in suits in those of common law, shall be,” &c. .“and in those of equity, and in-those, of admiralty and maritime jurisdiction, according, to the principles,'rules and usages which belong to courts of equity, and to courts of-admiralty respectively, as contradistinguished from courts of common law; except so far as may have been provided for by the act to establish the judicial courts of the United States; subject, however, to such alterations and additions as the-said courts respectively shall, in their discretion, deem expedient; or to such regulations as thfe Supreme Court of the United States, shall think proper, from time to time, by rule, to prescribe to any circuit or district court concerning the same.” The 18th, 24th and 25th sections of the judiciary act, first’referred to, recognises-the power of the Court to issue executions upon its judgments and decrees.
    Thus much has been done by congress; and it is apparent that that department has always considered that everything had been done, on its part, necessary to enable the court's to perform all their ■judicial duties; and fully to exercise all their judicial -functions and powers. Congress saw that the courts were proceeding in the exercise of those powers without difficulty or . impediment, and that no further legislative action was called for or needed. And so have the courts thought. In the case of Weyman v. Southard, 10 Wheat. 1, the Court considered itself possessed of full power over the whole proceedings in suits in equity, from their commencement to their final termination by satisfaction of the decrees or judgments.
    It has been suggested by -the defendant’s counsel, that congress has omitted to provide for the exercise of this branch of the jurisdiction of the Court; because it did not intend that it should be exercised. This is impeaching the fidelity of congress to the constitution. -But, fortunately, the imputation is wholly, unfounded. It is alleged, also, that congress, by the judiciary act of 1789,-has provided rules of proceeding in' all, or nearly all the ordinary cases which can arise at common law, or in admiralty; but none in such cases as this. This is as palpable an .error as could well be committed. In the case last mentioned, Weyman v. Southard,'which was a case at common law, objections were made to the process,- and to the service and execution of it; and it was contended that the proceedings were not authorized by any act of congress. But the Court, after remarking that the ehanceiy power of the court over all the proceedings in suits in equity, from their commencement to their final termination, were unquestionable, proceeded in these words: — “ It would be difficult to assign a reason for the solicitude of congress to regulate- all the proceedings of the Court, sitting as a court of equity, or of admiralty, which would not equally require that its proceedings should be regulated when sitting as a court of common law.” Thus we find, that while the equity powers of the Court in these cases is considered as having been placed beyona a-doubt by the acts of1 congress, its parallel powers, in cases at common law, have required to be sustained by inferences and reasoning. And it-was decided in the last- case referred to; and in that of the United States Bank v. Halstead., 10 Wheat. 54, that these powers are not legislative in their character.. They must, then? be simply judicial in .their character; and, if. necessary, must be incident to the judicial- powers and functions.
    Let me now inquire what has been done by- the Court in pursuance of its■ constitutional'and legal-powers; In -1791,'the Court adopted the following general‘order: viz., " That this Court consider the practice of the court of king’s bench, and of chancery, in England, as affording outlines for' the practice of this. Court; and that they-will, from time to time, make such alterations.-therein'as cir-' eumstances may render necessary.” 1 Cond: Re,p. 8. In 1796, the following- permanent general orders, or rules, were established, viz: “1, Ordered-that when process at common la\v, or in equity,-shall issue against, a state, the same shall be served upon the governor, or chief executive- -magistrate, and the attorney general of such- state. 2. Ordered,.that process of subpoena issuing out of this Court in any suit in equity, shall be served on the- defendant sixty- days before the return day of the said process: And, farther, that if the defendant, on such service of the subpoena, shall not appear at the return day contáined therein, the complainant shall be at liberty to proceed ex parte.” 3 Dali. 320; 1 Peters’Cond. Rep. 141. These several general orders, or rules, are still in full force, and have been practised upon by the Court from the time of their adoption;. Cáh there be a doubt that they are strictly in conformity to the constitution, and thé acts of congress referred to? In the ease of The State of New Jersey v. The State of New York, 5 Peters, in 1831, the Court remark, that “ At a very early period of our judicial history, suits were instituted in this Court against states, and the -questions concerning its jurisdiction and mode of proceeding, were necessarily considered.” (The Court then proceed to review a number of the preceding cases which had been before it, in which a state .was a party. “ So eai-ly • as August, 1792, (says the Chief Justice, who delivered the opinion of-the Court,) an injunction was awarded, at the.jprayer of the state of Georgia; The .State of Georgia v. Brailsford, 2 Dali. 402; to stay a sum of money recovered by Brailsford, a British subject, which was claimed by Ge,orgia, under her acts of confiscation.” This was an exerqise of -the original jurisdiction of the Court, and no doubt of its propriety was ever considerad.
    In February, 1793, the case of Oswald v. The State of New York came on; 2 Dali. 402. This was a suit at common law. The state not appearing, on the return of the process, proc'lafhation was made; and the following order entered by the Court: “ Unless the state appear by the- first day of the- next term, or show cause to the contrary, judgment will be entered by default against the said state.” At the samé term, a like order was made in the case of- Chisholm’s Executors v. The State of Georgia; and ¿t the next .term, 1794, judgment was rendered in favour of the plaintiffs, -and a writ of inquiry awarded. Grayson v. The State of-Virginia, 1796, :3-Dali. 320; 1, Peters’ Condensed Rep. 141. This was a bill in equity; and it was in this case that the Court adopted the two last general orders before-mentioned. 'In. Huger v. The State of South Carolina, the service of the'subpcena having been proved, the Court détermined that the complainant -was at liberty to proceed, ex parte. He accordingly-moved for, and obtained commissions, to take thé examination of witnesses in several of the states. 3 Dali. 371; .1 Peters’ Cond. Rep. 156. The Court also noticed the cases of Fowler et al. v. Lindsay et al.'; and Fowler v. Miller, 3. Dali. 411; 1 Peters’ Cond. Rep. 189; and the case of The Staté of New York v. The State of Connecticut; 4-Dali. 1; 1'Peters’Cond.'Rep. 203. “ It-1 has then,” proceeds Chief Justice Marshall, “ been settled by our predecessors, on great deliberation, that this Court may exercise its origkial jurisdiction in suits against a state, under the authority conferred by the constitution and- existing acts of congress. - The rule respecting process, the persons on whom it is to. be served, and the time of service are fixed. The course of thé Court, on the failure of the state to appear, after due service, has- been also prescribed.” And, accordingly; the Court did procéed,;and made the order, the first part of .which-has already been read; and .Which order thus concludes: ‘«And it is further- ordered, that, unless the defendant, being served with a copy of this decree sixty days before the' next ensuing August term of this ’Court, shall appear on' the second day of the next- January term thereof, .and answer the bill, of the complainant, this Court will procéed to hear the cause on the part of the complainant, and to decree on the matter of the said bill.” But, before the cause came to a'final decree, the state of New York compromised the controversy with-the, state of New Jersey, to the satisfaction of the latter state. The ease now before the Court is the same, in character, and in all the principles, involved in it, as that of New Jersey and New York. Why should not the Court proceed in this case, as they decided to proceed in that; apd in conformity to its subsisting rules and orders?
    With permission óf the Court, .1 will now proceed to consider the last objection which has been raised by,Massachusetts to the jurisdiction of this Court;. and upon which she appears mainly to rely, for producing an .effect upon the minds of the Court. That objection is, that should the Court make a final decree in the cause, it will have no power to carry it into effect.
    When, the blear and explicit provisions of the constitution are considered, and the several laws Subsequently passed by congress, for the purpose of aiding in the fulfilment of those provisions, I cannot conceive how any doubt can exist of .the power of this Court to carry into effect any decree, which, by those, provisions, it may b.e authorized and bound to make. And, if the constitution stood alone, I should still entertain the same opinion. It is a universal'axiom, that the grant óf a principal power, ipsó facto, includes in it all the minor, subsidiary, powers, necessary for the exercise of the main power, as inciden} to it.. What a construction-Would it be to" put upon the constitution, to say that the people, by that instrument, had ordained and established a tribunal. to take cognizance of, and determine certain enumerated controversies, over which, for that purpose, they, had given to it full and express jurisdiction; but that the tribunal- so established* could not perform its duty, for want of power to cause its decisions to be carried into effect ? What would the people have a right to say to a tribunal which should render to them such an account of its services; or, rather, such án excuse for the neglect of its duty?
    But is it not important here to inquire, whether, in considering the present question of jurisdiction of this Court to hear, try, and make a final decree in this cause, it can be at all necessary or*' useful to inquire what further powers the Court may; or may not, exercise upon any future, distinct application, which may or may not be. hereafter ■ made to the Court; and Upon which new and distinct application, should any such be made, the Court will then decide as it shall deem right.- If, by the constitution ánd existing laws, the Court have jurisdiction over this cause, to hear, try, and decide-if; is it not bound, to exercise that jurisdiction, when appealed to: and ought the Court to decline exercising this unquestioned jurisdiction, . from an apprehension that possibly it may, hereafter, be asked to do something more, which, possibly, it may not have it in its power to do? In the case of New Jersey and New York, the Court said, that] “inasmuch-as no final decree has,been pronounced, or judgnu nt rendered in'any'suit heretofore instituted in this Court against 'a state; the question of proceeding to a.final decree,-will be considered as not conclusively'settled, until the cause shall come oft to be heard in chief.”- Thus-thé. Court determined to hear the cause in . chief, without anticipating what its final decree might be; much less, what, if any thing, might remain, to' be done, after the -decree. And the Court did th'én decree, ■“ that the complainant be at liberty to proceed, ex parte;” and further decreed, that, “ unless the defendant state„appeared, the'Couft would proceed to hear the Cause on the part of the complainant, and to decree on the matter of the said-bill.” There are many crises in which-decrees in chancery cannot.be fully, ■if at'all, executed; but that has never been considered a reason why the Court, should not pronounce the decrees wjiich it has the power to pronounce.
    But,.I shall not dwell longer upon these questions; because there is .another position which, if sound, I think entirely obviates the, objection of the want Of power in the Court beyond the power of . making a final decree in the cause.
    That position is, that the-pronouncing of a final decree in the cause will coirnlete the exercise of all the jurisdiction which the cause can require; and will be a final,/conclusive and permanent termination'of the controversy. This position, upon much reflection, *'I believe tp be sound; or I certainly should.' not venture to advance it before this honourable Court; as'I do, entirely upon' my own responsibility, as to its soundness or unsoundness.
    ' A final decree in this cause will have no resemblance- to- a judgment'of Court for a sum of money to bé collected'on. execution; nor to a judgment in ejectment tó be followed by an execution for possession. No process would necessarily follow a final decree in this ■cause. We ask no damages of Massachusetts; no delivery of possession: no process to compel her to do or.undo any thing. All we ask is a decree, ascertaining and settling the boundary line between the two states.
    . Mr. Justice Thompson asked Mr. Hazard if the bill did not contain a further prayer; a prayer that Rhode Island might be restored to her rights of jurisdiction and sovereignty over the territory in question;, and quieted in her enjoyment of them ? And, that part of the bill being read, it appeared that it did contain such a pray.er, in áddition to the prayer that the boundary line between the two states •might be ascertained and established.
    ■ Mr..Hazard said that the latter part of the prayer of the bill had escaped him y but it did not vitiate the bill. The Court would have it In fits power to grant' so much of the práyér as they might think right.- All Rhode Island asked-for was a decree ascertaining and establishing the true, boundary-line between her-and Massachusetts. When that is settled by a decree, the rights-of jurisdiction and sovereignty will necessarily follow: the decree will'execute.itself; and this controversy can no longer exist. - When -the boundary line is' settled, it will he the same as all other established boundary lines; and the relative situation of Rhode Island and Massachusetts will be the same as that of all other adjoining states.
    And'why should not Rhode Island be placed upon the same footing, in.this respect, with her sister states? Why should her jurisdictional boundary -line be left in dispute, and she exposed to encroachments;1 when all other controversies of this kind have -been lastingly settled?
    Am I not- sustained, in ,the position I have here taken, by the opinions and acts of the learned men who framed the articles of confederation? They enacted that .the decrees of the court of appeals, in-the. cases over which jurisdiction‘was givep to it, should be final and conclusive. And it.was their opinion that nothing more than a •final decree would be necessary; and, therefore, they provided for-no further proceedings. And, what, ought to'be conclusive ■ is the fact, that- although a number of- decrees in such cases were made by .the court of appeals; no difficulty was ever experienced, and no further process \Vas ever found to be necessary.
    It is -true, that after the line is settled, Massachusetts'may do other wrongs to Rhode'Island for which-other remedies may be necessary; and so she may. to;'apy other state: but this controversy about the line, will" be at an end. ■ Should Massachusetts hereafter encroach upon Rhode Island, that will be a new aggression; the same as"if she' Should encroach upon any other state, near or distant; the .same as if she should encroach upon the state of New York, or Connecticut, or New Hamushire; or, again, upon Rhode Island, x>n her eastern boundary: with all of which states Massachusetts has had controversies about her boundaries,, and has always been found the- aggressor. But when those boundaries were ascertained by the.competent tribunals, all difficulties were at an end. When Rhode Island, upon the decision,, of the king, in council, received under her ■juris-' .diction, her county of Bristol, and her towns of Tiverton-and Little Compton, over which Massachusetts had long exercised jurisdiction, sh’e met with no obstructions from that state. Neither did New Hampshire, whose controversy with Massachusetts; was decided by the same' tribunal. Still the Court are told by Massachusetts that. they canndt carry their decree into effect.. Allow me to ask, sir, in what possible' way Massachusetts can have it in her power to defeat or evade the effect of that, decree? The decree itself, the moment it. is pronounced, will establish a new state of things between Massachusetts and Rhode Island. And what áre the means that Massachusetts-cán résort to, to prevent that decree from taking- full'effect by its -own force and operation? I should be glad to hear the attorney-general of Massachusetts inform the Court what it is that that important state is going to do tb set the decree of this Court at defiance, and render, it a nullity ? Massachusetts is not going to erect, a line of batteries .along this strip of land; nor to, statkm a military force there to take hostile possession of it. If she should, it would be invasion;, an ample remedy for which is provided in the 4th article 4th .section of the constitution. And Rhode Island would be under no necessity, to apply to this Court for an injunction-in such a case. And this again shows the meaning and propriety of thé expression “civil controversies,” used bjr congress; and, no doubt, meant by the constitution.; I ask again, then, what can Massachusetts do to prevent a decree of this Court taking fill! effect-by its own forcé and operation ? She can do nothing. She can only say that she will retain-jurisdiction over this district, the decree'notwithstanding. But let us examine what she. can-make-this amount to. Massachusetts, as a státe, is not the proprietor of this- strip of land.. If she own any land there she will, of course, still own and retain it; and her right and title will, be held as sacred as those of any other owners of the soil. There is np shire town within this district; and of course, probably, no public buildings belonging to the state. If there are, they will still be her property, though not appropriated to the same uses. There will be nothing, therefore, which Massachusetts can retain the possession of, which she will be required to relinquish. Jurisdiction over the district it will be out of her power to exercise, for she will not have it; that (in her) will be extinguished by the decree, ipso facto. What, jurisdiction, after the decree, can she exercise? She cannot number the inhabitants-of this district as part of her population, or of her militia;' for they will not be so-any more than the inhabitants of the county of 'Providence. And, no more cári she tax'them, or their lands, or other property; for they will. not .be subject' to her laws. Her tax-gatherers, cad'collect no taxes; her ministerial officers execute no procese within that district, for it will1 be out of the jurisdiction of their state. And, should they attempt to do so, they will carry no Massachusetts authority with them over the boundary line established by the-decree of this Court. They-will be trespassers;' and- subject themselves to the penalties provided for the punishment of trespassers. With as much right might Massachusetts send' her officers into any other part of the state as this; but the civil authorities of Rhode Island would have no difficulty in dealing with such offenders.' They would be violators of the laws of the land; not only of- the laws of Rhode Island, but of the 'constitution of, the United States, and of the acts of congress, under the authority of which the decree of this Court would have been made. They could not escape conviction and punishment. And any countenance-Massachusetts might-give to them would but aggravate the offence and the punishment. ' No aid from this Court would be needed. .The existing laws would furnish a perfect remedy for th.e’ wrongs attempted to be done.
    Those Massachusetts’ officers, sheriff, tax-gatherers, or whatever they might-be, would have no authority to demand aid from the people of the adjoining county in Massachusetts. Nor is it probable that any of those people, (riot being bound to obey such demand,) would have any concern in violating the rights of another state, established by a decree of the Supreme Court of the Union, But should those officers, on any occasion, carry with them a sufficient body of men from Massachusetts, to enable them, for the time, to seize upon the property or persons of any of the inhabitants of the state of Rhode Island; (of which this district would then Be a part;) and to escápe into'Massachusetts before they could be arrested, they would all ajike be criminals, and punishable as such. And, by the fourth article, second section of the constitution of the United States, and that of congress passed in conformity thereto, the executive authority of .the state of Massachusetts, on demand made by. the executive authority of the state of Rhode Island, would be bound and compelled to deliver up those criminals to be removed for trial to the state having jurisdiction of the crime. And here again, Rhode Island would have a perfect remedy without the interposition of this Court. Nor would Massachusetts have it in her power, effectually, to obstruct the magistrates and civil officers of Rhode Island' in the' execution of their official functions. Those magistrates arid officers, in the performance of their lawful duties, within the jurisdiction, and under the authority of their own state, would have, nothing to apprehend from any quarter. Should any of them be lawlessly seized, and carried within the jurisdiction of Massachusetts, still they would have nothing to apprehend. The decree of this Court, the laws of the state in which they acted, and the constitution and laws of the United States, would sustain and save them harmless. These authorities, the respectable judicial tribunals of Massachusetts, would not set at defiance; and if they should, their judgments and proceedings would speedily be revised and corrected here.
    Thus, we find that it'would be wholly out of 'the power of Massachusetts, to prevent a final decree of this Court from' taking full effect, by its own force and operation.
    I could not help feeling great surprise, when I heard the attorney general of Massachusetts so solemnly and portentously warning this Court of consequences, and expressing bis anxious hopes, that if it should decide against Massachusetts, it will, for the honour of the. Court, gnd for the honour of the country, be sure to find some way to execute its decree.. What! Does Massachusetts threaten? Is. Massachusetts ready to become a nullifying state? and to set up her -own will, in d-fefiance of the.decrees of this Court, and of the constitution itself? This Court will n.ot make a decree against Masr Sachusetts, unless it shall be satisfied that the constitution authorizes it, and that equity^ requires it. And for Massachusetts to expect to prevent the'Court from making such a decree as it may deem constitutional and equitable, by telling the Court how formidable she is, and how contumacious and lawless she means to. be'in her defiance of its decrees; this, it appears to me, is almost as deficient in policy, as it is in modesty. But let Massachusetts take her own course, and whatever that may be, it wilf excite no apprehension in Rhode Island; although she may .grieve that so noble a state should conduct in such a manner as to tarnish her high and well merited renown. If, sir, the principles and positions I have endeavoured to establish are sound,’and have been established, I must think that they reach and dispose of all the material objections which the counsel of Massachusetts has raised against the jurisdiction of this Court
    
      There were a great number of other objections,,or suggestions and statements • made.'by the counsel, some of which I will how just advert to; .although- I -do not consider them as having any hearing upon the.question before the Court.- It‘is alleged that the five thousand inhabitants of the district in!' question,, (I know, not how many there are,) have a right to be parties to this suit, and are not. If this was so, it' would he- no objection to the jurisdiction of the Court. The Court- would' take ‘ care -that they were made parties before it proceeded further.. But all' the proper parties are here in Court. This controversy is about state jurisdiction, no,+ .titles to soil and freehold. I suspect; however, that if- thpse inhabitants were consulted, they would not consent to', be' made defendants;, but.would .rather join with the complainant' state.-- ■ They are-taxed hard-in Massachusetts, and would have no state taxes to pay in' Rhode Island. And,- at one time, a very large number of the respectable inhabitants of that district, petitioned the legislature of the' state of Rhode Island to be received into that jurisdiction, to. which they claimed rightfully to belong.
    It is objected, also, 1. That the' bill contains matter in bar to itself. 2. That the bill- admits That Rhode Island was never in •possession, and that the suit is barred by proscription.- 3. That the controversy has been settled, ■ These' might- be proper matters for discussion and proof (they are not proved yet, and cannot be, for not one of them is true,) upon-the trial of the causé; but, evidently, have' nothing'to- do withthe question of jurisdiction. Because it.appeared that the Massachusetts charter of'1.628, upon a scire facias from* the Court of -king’s bench, was revoked and annulled in 1685; and that she did not' get a new charter until 1691; her counsel has stated that Rhode Island, while a colony, abandoned' and surrendered up her charter; This,.is a mistake. .Connecticut and Rhode Island never did Surrender their charters; although they were demanded, and great efforts made .to obtain possession of them. The' Connecticut charter was bidden in the hollow of the venerable old (oak tree .at .Hartford; and that of Rhode Island was also preserved seeurefrom its enemies, and is now in her Secretary’s office at Providence. , The .counsel (in Sport, I suppose,) Mas indulged his, fancy in- describing Rhode Island as she would have been had the claims upon her territory, set up by Plymouth on the east, and Connecticut on the west,' been successful.- Very true;.and Rhode Island would have been stripped indeed; especially with. Massachusetts helping herself to Ave miles more of her territory on the north, which I suppose the attorney general-of Massachusetts thinks was quite venial, , while 'Kh.ode Island’s "territory .was- looked. upon .as free plunder. Hut those claims upon .-the. .territory.of Rhode "Island, on the east'arid west, were found .and- decided to be- unjust.- And' it was Massachusetts herself; not Plymouth; Which:had gotqjpssessrorj of trie county.' and towns within -.theelimits jof Rhddé- Island, afe; bptbrementioned, and from which, after a faint strjiggLé, she was compeHed fb- retreat There is no probability, tljat- a small state will make- unreasonable ' claims,' ihuch less' encroachments upon /large ones.--
    • The counsel of Massachusetts" have asked the Court to considér the-character, pf the. original colonial charters, apd nave feadv passages from" Bancroft’s History,.to show how loose and defective, ¡those Charters-were, and how,difficult if would now be to decide contro-' Vérsies growing out of ¡them.. ■ That-a case1 will be a'.difficult'oiietQ settle, is nbt -¿.'very good ieasori.tw offer; for a-court’s not taking Cog-» hi.zánce of it. But in the present ¡casé, no difficulty whatever cari arj'se from such a source, The. charters both of ¡Rhode-Island and Massachusetts, are clear‘and intelligible in this ;partiéulbr. -Rhófip Island by her charter,'is bounded* north by thesputh fine of Massachusetts; and that line, by the Massachusetts'charter, ivas to: be three miles, south of'the rimst'southerly, part of Charles river; the sole question, therefore, to be-settled; is;a question,of,construction of that paft of. the , Massachusetts charter. , Ope set of the Massachusetts commissioners appointed to,¡.Settle,this line with .Rhode- Island, reported correctly to their .legislature the . construction which each state relied npbn. The Rhode .Island construction'was, that the most' southern pari of Charles .fiver proper — Charles ¡river itself, that is, wftat. was known by-the name of f‘ Charles riypr,” was Hhe 'point! from which to measure off.-the three pifies.- Op the other hand, Mas-' saehusetts insisted- that the. most southerly source or spring head of any run of water, running northerly and finding its wa.y into. Cjharles river, Was- to ¡be; ¡taken, qs the .most southerly part, of ¡Charles river, And accordingly they , found a- brook, called Mill' Brook, which run from the south .into Charles river; This they tracen up to' a pond, called Whiting’s Pond,” out .of which the.brpok run; .¡then going, to the south end of the-pond, they found apother brook, called Jack’s Pasture Brook, which they .traced pp south tbits spring head, arid this they called, the riiost southerly part of Charles riyfer. ¡Surely there can be no difficulty in deciding by'the charters, which of these constructions is the correct one. These are the merits of the case, and I am.sensible that they have no bearing upon the question of jurisdiction before .the Court. But the counsel of Massachusetts have repeatedly introduced the merits; and I presume it is not improper for me to follow him so far as to state them correctly.
    Precisely the' same question was decided more than an hund.red years ago, in the controversy between Massachusetts and New Hampshire. The'northern boundary of Massachusetts is defined and limited in her charter, in the. same terms-as her southern boundary. She was to have three miles north of the most northerly part of the Merrimack river. Upon this .¡he set up the same claim upon New Hampshire, as she now does upon Rhode Island; and by her construction, she would have- taken the whole of New Hampshire, and the greater part of the province (now state) of Maine. But her pretensions were decided to be wholly unfounded and unjustifiable; and she was compelled to draw herself within her charter limits. And why has she not respected that decision, and contented herself with the same limits on the south as on the 'north ?
    Massachusetts, also, had precisely the same controversy with the state of Connecticut, about the westerly part of this same line; that State and Rhode Island, by their charters (granted about the same time, 1662-3) being both bounded northerly upon the same straight line, to be drawn due east and west throughout. But Connecticut would not Submit to the encroachments of Massachusetts. And, although she had entered into a written agreément with her, establishing the line as it then was; and that agreement had been formally ratified and confirmed by the legislatures of both states, (which was never the case with .-us;) yet Connecticut proved, that misrepresentations an.d impositions had been practised upon her commissioners and government, in the running of that line; and she brought Massachusetts to a sense of justice, and obtained from her a large part, arid not the whole of the territory which the latter had wrongfully-taken within her limits. . And now, whenever you look upon any map including the three states, or tiiat part of them, you see the Connecticut northern line is miles in advance- of that of Rhode Island, which ought to be. a continuation of it; and the government of Massachusetts has not caused, and cannot cause any survey or map of that fine state to be taken or published; without recording anew and emblazoning her unjust encroachments dpon Rhode Island.
    A-singulaSP appeal was made to your honours, in the gentle tones of persuasion-by the counsel of Massachusetts. They remind the Courf that courts of equity do not countenance'family quarrels, in which the honour and feelings of families may be exposed to injury. Very well. And here is the important state of Massachusetts, surrounded by six other states, all of wrhich show her great respect and deference, and ■manifest a desire to continue in strict harmony with her. But Massachusetts is not satisfied with this. She encroaches, and encroaches upon her neighbours until their patience is exhausted; and after long forbearance they are compelled, one after another, to complain of her aggressions and seek redress. And thus called upon, here comes Massachusetts quite undisturbed, and to smooth matters over, talks about’ family disputes, and family honour, and the relations between neighbouring sister states, which make it improper to listen to their trifling complaints against each other; and so she advises that the complainants be reprimanded and sent home. But this, did not answer before the old tribunal of the king in council, nor before the-American court of appeals. ’ Rhode Island, the last of the injured states, whose grievances alone remain unredressed, entertains á high' respect for her-elder sister, Massachusetts. But I'take it upon myself, to assure this honourable Court, should it think itself bound' in justice to make a decree in her favour, she will not be offended nor complain of it; although the decree must be against that resp'ected elder sister.
    Allow me to conclude my remarks more seriously, and with matter more important. The counsel off Massachusetts have talked much of the proper division of powers between the three great departments of government; the legislátive, executive, and judicial. And they insist that the judicial is not the proper department to have cognizance of these controversies. Pray, have you heard them point out which of the other departments is the proper and appropriate one; or what other tribunal there is to' exercise this jurisdiction? The idea of investing the executive with jurisdiction over controversies of any kind, whether political or civil, between states or individuals, has never entered into the head of any man. And is it not evident, that jurisdiction over such controversies cannot consistently be exercised by the legislative department of any well-balanced government? And, when the structure of the federal and state governments, relatively to each other, the partition, limitation, and adjustment of their respective powers, is considered, the incompatibility of such a legislátive jurisdiction is still,more glaring. And, therefore, the constitution of the United States has not permitted thq exercise of any such jurisdiction. to either the legislative op exécuti-ve department; but. has' expressly conferred- ,if upon- thé judiciary", which is free from, alf the’ objections that lay,against.the other two. What then, does Massachusetts mean ? Roes. she. mfeapj that in-her -controversies with' any .of-her sister states, she' -is;, notamenáblé-to justice, before any tribunal.? — Arid that thereas, np remedy for ah- injured sister state', for any wrongs- she may sufferat. her hands? .That there shalTberro wrong .without-a. remedy^ .-is a first .principle, an axiom- in., all, free, governments.' Is this the cou-n-' try in which that, great fundamental-principle of right and justicejs. to be first -abandoned ?
   Mr. Justice Baluwin

.delivered the opinion'of the Court:'

At the January term óf this Court, Í 8 32, the-'plaintiff-filed: a bill ifi equity, presenting a case arising under the various .charters fro ri,-the crowd of-Engl and' to -the Plymouth Company, in 1621;t'o:MasSa-chusettsin, 1629; to.Rhode Island in 1663'; the'new charter.to Massáchusetts in 1691: together with sundry, intermediate Drocéédirigs of the councihof -Plymouth: the fesult-of which .was- to vest; in 'the colony. Of Massachusetts ánd. the king;,all the rights of propriety, and government previously .granted -to that company as a political corpa* ration.. The bill' also set out the repeal of the original; charter of Massachusetts on a scire facias, in the court of chancery in England, the graht by the crown and acceptance by -the colopy of a -new charter^ subsequent'to the charter fo Rhode Island.

All these acts are. specially anti at large set out in the-bill, but need not in this stage of the cause be referred to. by thé Court iri detail. They presentthe claim of the plamfitf to the territory irycontroversy between the two states; in virtu'e of .thes.e charters, according'to trie., boundaries therein-described,

-Independently of the claim undef thé «hartenofl 663, the nlaintiff asserts a previous right iri virtue-of. grants from the,-Indians; arid settlements-made under a title thus acquired; and 'also asserts, that under both -titles, the inhabitants of -Rhode'-Island-máde settlements' on -the lands immediately south of the.,.boundary between- thé two colonies'as-now asserted; wbíéh settlements were.so made and continued from the. time of the purchase from the Indians, beforé; under the char ter, arid aftérwards, though the line was not defined" and disputed I

The. bill fhen procéeds. to • state .the existence of. controversies be* tween the two. colonies;, at a very early period; to settlé'which;commissi'oners were appointed by each colony in Í709, and at. Various Other periods down to 1809; and sets forth, the proceedings of thte commissioners óf fhe colonies before the revolution,'and the states afterwards, down to 1818.

For the present purposes, of this, casé, it is necessary to refer only to one subject matter of these proceedings during this whole period, which is .presented in the bill in' the' same aspect throughout; that subject is the agreement of 1709, and 17Í8; and the'acts done pursuant thereto, .which are recited at large in the bill. It then state's 'the-agreement’ of the commissioners of the two colQnieSj that-a line should be run and-marked as their boundary, which Was done; a survey made and returned, together with all the proceedings to the legislatures of the respective colonies, accepted by Massachusetts, but as* the bill avers, not accepted and ratified by. Rhode Island; This is the line now cláimed by .Massachusetts; and whether the .charted, line or that; is the trufe Jinfe of right and boundary between the two states, is the only point in c'ontroversy in this case.

-The bill avers'that this line was agreed'on in consequence of are-presentation by the Massachusetts’ commissioners to those 'of Rhode Island, that in 1642, Woodword and Saffrey had ascertained the point, three milefe south of Charles river; which, by the-charters, of.'both colonies, was to form their common boundary by a line to tun east and west therefrom.. That Woodword and Saffrey had set up.a stake at that point on Wrenthám Plains, ¿s the' true southern boundary of Massachusetts; That the Rhode Island commissioners, confiding in such representation, believing that such point had been truly ascertained, and that such stake was no more than three miles from Charles river, south;-entered into and made the agreement of 1710-11, -which was executed by the commissioners on both sides.

In the .agreement is this clause: That- the, stake set up by Wóod'word ánd Saffrey, approved artists,, in 1642; and since that often re* newed, in lat. 41° 55' N., being three English'miles'.south of Challes river, in its southernmost part, agreeably to the letters patent to Massachusetts, be accounted and allowed as the commencement of the line between the - colonies, and continued between them as decyphered in the plan of Woodword and Saffrey, on record in the Massachusetts government.

It is then averred in the bill, that no mark stake, or monument then existed (1710-1.1) by which the place at which Woodword and Saffrey were alleged to have set up the stake could be ascertained; that none of the parties to the agreement.went to such place;- that no survey was made, no line run, or any meá'ns taken to ascertain where it was; whether it was three miles' or ,more from Charles river; whether Woodword and Saffrey ever run the line, or whether it was, the true boundary line between the colonies, according to their respective charters. That Massachusetts took wrongful possession of the territory in question, in which Rhode Island never acquiesced, and to which she never agreed; but continued to assert her claim from the time of the agreement, to the filing of the bill, to all the territory embraced in her charter, and sovereignty and jurisdiction within and over it, as claimed in the bill. The bill denies that any line Was evér run by Woodword and Saffrey, in 1642; avers that, the agreements'of 1710-11, which adopted it, were unfair, inequitable, executed under a misrepresentation and -mistake as to material facts; that the line is .not run according to the charters of. the colonies; that-it is more than seven miles south of the southernmost part of- Charles river; that the agreement was made without the assent of the king; that Massachusetts has continued to hold wrongful possession of the disputed territory, and prevents the exercise of the rightful jurisdiction and sovereignty of Rhode Island therein. The prayer of the bill is to ascertain and establish the northern boundary between the states, that- the rights of sovereignty and jurisdiction be restored and confirmed to the plaintiffs, and they be quieted in the enjoyment thereof, and their title; and for other and further relief.

On the service of this bill on the governor and attorney general of Massachusetts, agreeably to a rule of this Court, the legislature passed a resolution, authorizing the appearance of the state to the suit, and the-employment of counsel by the governor, to defend the rights of the state. In obedience to this resolution the governor after-reciting it, appointed counsel under the seal of the state, to appear &nd make defence; either by objecting to the jurisdiction of .this Court, or by-plea, answer or otherwise, at his discretion, as he should judge most proper.

Under this authority, an appearance was entered; and at Jaiiuary term, a plea in bar. of the plaintiff’s bill was filed, in which it was' averred: That in l'642, a station or monument was erected and fixed at a point believed, to be on the true southern boundáry line of Massachusetts, and a line continued therefrom to the Connecticut ri-ver, westwardly; which,station or monument was well known, notorious, and has ever since been called Woodword and Saffrey’s' station, on Wrentham Plains. It then sets up the agreement of 1709, and subsequent proceedings at large; avers that the whole merits of plaintiff’s case, as set forth in the bill, were fully heard, tried, and determined, in the heáring and by the judgment of the Rhode Island commissioners; that the agreement was fair, legal, and binding between the parties; that it was a valid and effectual settlement of the matter in controversy; without cover, fraud, or misrepresentation, with a full and equal knowledge of all. circumstances by both parties. That such agreement is still in full force, no way waived, abandoned, or relinquished; and that the defendant has held, possessed, occupied, and enjoyed the land, propriety, and jurisdiction, according to the well known and easily' discovered station of Wood-word and Saffrey, and the line run by them therefrom, from the date of the agreement to the present time, wihout hindrance or molestation.

The plea then sets forth the subsequent agreement of the two colonies, in 1717 and 171,8, touching their boundaries, and a running and marking thereof by their respective commissioners, appointed for the purpose of finally settling the controversy; who, in 1718 agreed that the stake of Woodword and Saffrey, should be the point from which the dividing line should be run, and be forever the boundary between the two governments; notwithstanding’ any former controversy or claim. That this agreement was recorded, ratified, and confirmed by the general assembly of Rhode Island; that no false representation was made to their commissioners; that the agreement was concluded fairly, in good faith, with full and equal knowledge by the respective parties, has never been annulled, rescinded or abandoned, and was in pursuance and completion of the agreement of 1709. The report of the commissioners is then set out, stating that in 1719 they run and marked a line west, 2° south from the stake of Wood word and Saffrey, at which they met, as the boundary; which report was approved by Rhode Island in the same year. The plea then makes the same averment as to these proceedings of 1717, 1718, and‘1719, as it did in relation to those of 1709, 1710, and-1711; pleads both agreements and unmolested possession by the defendant, from their respective dates to the present time, as a bar to the whole bill, and against any other or further relief therein; prays the judgment of the Court whether the defendant shall make any further answer to the bill, and to be dismissed.

Then the defendant, not waiving, but relying on his plea, by way of answer, and :m. support of; the- plea ás.a bar to the- bill,- avers that' both-agreements Were a valid and effectual settlement of the-whole matter of controversy in the case, as is insisted on in the plea.

To this plea a replication was 'put in* but 'afterwards withdrawn, and notice giveii that.the,cause would be put- down For hearing on the.plea: ;he cause was continued at the last term.; the plaintiff gave notice that he should, at this term move to amend the -bill; and the casé is no.w before us -for .consideration, on a.motion by the defendr aht, to dismiss the bill for want of jurisdiction in the cause..

Hpwever late, this Objection-has .’been .made, or may be made-in ány cause; in an .'inferior or appellate court of the United-States,, it ,ihustibe considered and decided,{before any court can move one furtherstep: in the cause'; as -any movement is'necessarily flteexeireise .of, jurisdiction. Jurisdiction is the .powér to he^r and determine the subjeef.matter in controversy, between parties to a suit, to .adjudicate or. exercise any judicial power over .them'; the question is, whether op .the casé before á Oourt, their action is judicial' Or extra-judicial; with, or without the. authority Of law,.to'render a judgment or’ de* . cree . upon the ¿rights of ..the litigant partios. If. the ’ law- confers the power to:render a judgment or. decree, then the court, has jurisdiction; .what .shall be. adjudged or decreed between, the parties, and. with whiOh.is the ,right of ±h,e cáse,.is judicial action, by-hearing and determining,it. 6 Peters, 709; 4 Russell, 415; 3 Peters, 203-7.

A motion. to djsmiss a cause, pending in the .courts.of the United’ State's,,is not-analogous to a-plea-to the jurisdiction'’of a court.of common law-or equity-i:n England; there the- superior courts, have a general -jurisdiction over- all persons within, the realm, , and. all causes ,of action between them, .It.-depends on the subject matter, whether the.-jurisdiction shall be exercised by a court Of law or equity’;, hut that - court,, to which it appropriately, belongs, can act Judicially upon the party apd the subjeet of the suit; unless it shalL be made apparent to the court that the judicial determination of the case has been withdrawn from the', cóurt, of general jurisdiction, to an inferior and limited one. It is a necessary presumption that the cour.t-of general.jurisdiction can act upon the given case, when nothing appears to the . contrary ; hence-has-arisen the rule that the party claiming an exemption from its process, must set out the reasons by .a special plea -in abatement; and- show that; some interior court of .law or. equity has. the ■ exclusive ■ cognizance of the case;, otherwise'the superior court must proceed,; in virtue of its general jurisdiction. This rulé, prévails.both at law and in equity; 1 Ves. sen. 204; 2 Ves. sen. 307; Mit. 183. A motion to dismiss, therefore, Cannot beentertained, as.it does not.and cannot'disclose a, ease:of éxcepbiorií .and ifá-pleá in abatement is put in,, it ,must acit only make out the exception, hut point, to the particular -court to. which the case belongs. • A-pIaintiff inlaw or equity, is not to be*driven from-court tO'eóurt by such pleas; if .a defendant ,seeks to quash a. writ, or- dismiss a-hill for such cause, he -must give the plaintiff.a better one, and -Shan, never put hr a second plea to the' jurisdiction of that court, to. which, he has driven the plaintiff by his plea. 1 Ves. sen. 203. Therp-aie -other classes'of,, cases where the objection-.to' the jurisdie* tion-is of a different nature, á's on a bill in- chancery; that the Subject matter is cognizable only by the king ,in council, end. not by. any judicial power, 1 Ves. sen. 445; or .that the parties, defendant,..cannot be brought before any municipal, court;; on account of their, sovereign- character, .and the nature off he controversy;: as 1 Ves. jr. 371, 387; 2 Ves. jr. 56, 60; or in the very common cases which present the.question, whether the cause properly.belongs to a court of law or-equity To such, cases, , a plea jn abatement, would not be. applicable, because, the plaintiff could not sue, in-an inferior court the objection goes to. á- denial-Of any iurisdictiop of a municipal court in one class fit cases; -and, -to.the jurisdiction .of any-court of equity or of law in/thp other : ■ on which last, -the court decides-according .to. their legal'discretion. . An objection to jurisdiction, on the ground of exemption.from .the process of, the. court' ict.which thé süit-jis, brought, or'lhe. manner in.which a defendant is-brought into-it/is' waived by appearance and- pleading, to- issue. 10 Peters, 473; Toland v. Sprague, 12 Peters, 300; but wheq -the objection goes -to the power of the .court over the parties, -or. the^ subject -matter, the defendant need not; for he cannot give: the plaintiff a better-writ or bill. Where -no inferior, court can- have, jurisdiction of a-case in law or equity, the ground, of the- objection-is not taken by plea in, abatement, as. an exception of the given-, case, from , the otherwise, general jurisdiction of the court; appearance, does not Cure the defect of iu* dicial power; and it may be relied on by plea, answer,-demurrer,: or at .the trial or hearing,...unless it goes to the manner of bringing the defendant into court, which- is waived bv submission to the process.

As a.denial of jurisdiction over the' subject matter of a suit bet-tween parties within the realm., over., which and whom the court has power, to act, cannot be'.successful in an English , eourt-of general ju-risdiction; a motion like the present could not foe sustained consistently with the principles of its constitution. But as this' Court is one of limited and special original jurisdiction, its action must be confined to the particular cases, controversies, and parties Over which the constitution and laws have authorized it to-act; any proceeding without the limits prescribed, is coram non judice, and its action a nullity. 10 Peters, 474; S. P. 4 Russ. 415. And whether the want, or excess of power.is objected by a party, or is apparént to the Court, it must surcease its action, or proceed extra-judicially.

Before we can proceed in this cause we . must, therefore, inquire whether we can hear and determine the matters in controversy between the parties, who are two-states of this Union, sovereign \yithin. their respective boundaries, save that portion of power which they h,ave granted to the federal government, and foreign to each other for all but federal purposes. So they have been considered by this Court, through a long series of years and cases, to the present term; .during which, in the case of The Bank of the United States v. Daniels, this Court has declared this to be a fundamental principle of the (jonstitution; and so we shall consider it in deciding on the present motion. 2 Peters, 590, 91.

Those states, in their highest sovereign capacity, in the-convention of the people thereof; on whom, by the revolution, the prerogative of the crown, and the transcendant power of parliament devolved, in a plenitude unimpaired by any act, ahd controllable by no authó-. rity, 6 Wheat. 651; 8 Wheat. 584, 88; adopted the constitution, by which they respectively made to the United States a grant of judicial power over controversies between two or more states. By the institution, it was ordained that this judicial power, in cases where a state was'a party, should be exercised by this Court as one of original jurisdiction. The states waived their exemption from, judicial power, 6 Wheat. 378, 80, as sovereigns by original and- inherent right, by their own grant of its exercise over themselves in such cases, but which they would not giant’to any inferior tribunal.. By this gránt, this Court has acquired jurisdiction over the parties’ in this cause, by their own-consent and delegated authority; as their agent for executing the judicial power of the United States- in the. cases specified. Massachusetts' has appeared, submitted to the process in her legislative capacity, and plead in bar of the plaintiff’s action, certain matters on which the judgment of the Court is asked; all doubts as to jurisdiction over the parties are thus at rest, as well by tbe grant of power by the people, as the submission of the- legislature to the process; and calling on the Court to exercise its jurisdiction on .the case presented by. the bill, plea, and answer.

Our next inquiry will be, whether we have jurisdiction of the subject matters of the suit, to hear and determine-them.

That it is a cbntroversybetween two states, cannot be denied; and though the constitution does not, in terms, extend the judicial power to all controversies between two or more states, yet it in terms excludes none, whatever may be their nature or subject. It is,- therefore, a question of construction, whether the controversy in the present case is within the grant of judicial power. The solution of this question must • necessarily depend on the words of the constitution; .the meaning and intention of the convention which framed and proposed it for adoption and ratification to the convéntions of the people of and in the several states; together with a reference to such sources of judicial information as are resorted to by all courts in construing statutes, arid to which this Court has always resorted in construing the constitution. It was necessarily left to the legislative power to organize the Supreme Court, to define its powers consistently with the constitution, as to its original jurisdiction; and to distribute the residue of the judicial power between this and the inferior courts, which it was bound to .ordain and establish, defining their respective powers, whether original or appellate, by which and how it should .be exercised. In obedience to the injunction of the constitution, congress exercised their power, so far as they thought it necessary and proper, under the seventeenth clause of the eighth section, first article, for carrying into execution the pow-ers vested by the constitution in the judicial, as well as all other departments and officers of the government of the United States. 3 Wheat. 389. No department could organize itself; the constitution provided for the organization of the legislative power, and the mode of its exercise, but it delineated only the great' outlines of the judicial power; 1 Wheat. 326; 4 Wheat. 407: leaving the details to congress, in whom was vested, by express delegation, the power to pass all laws necessary and proper for carrying into execution all powers except their own. The distribution and appropriate exercise of the judicial power, must . therefore be made by laws passed by congress, and cannot be assumecTby any .other department; else, the power being concurrent in the legislative and judicial departments, a conflict between them would be probable, if not unavoidable, under a constitutibn of government which made it the duty of the judicial power to decide'ah cases in law or. equity arising odder it, or. laws passed, and treaties made by'its authority.

By thejudiciary act- of 1789, the judicial system, of the United State? was. organized, the powers of the different courts defined}, brought into' action, vand-the manner-pf their exercise ¿regulated;-,' The 13th section provided, “That the Supreme Court shaft have exclusive, jurisdiction of aft controversies- of a civil nature,-'where a átate is a 'party, except between á state and its citizens^ and except .also between a- state and citizens-of other-states or-aliens; in Which latter, case, it shaft have-original} but' nbt-excTusive jurisdiction.” 1 Story’s Laws, 59. ■

The power of congress to;, make this provision for carrying into execution- thérjudicial pow'er ijx such cages, has newer been, and we think .cannot be.Quéstioned; and taken dn' connection 'with ib,b Constitetibp, presents-thd great question-in this .cause, which is- One of construction appropriate to judicial pow-er, and- exclusively b'f ju* diciál cognizance,dift the legislative'- power acts again -Upon it. Vide •3 Peters., 203; In deciding, whether the present .case is embraced or excluded by the constitution and judiciary act, and whether if-is a case .of- lawful - original cognizance bv this Court, it -is tbe-exeroise. of jurisdiction; fbf-it must, be in the-legal discretion' of'the Court, to'retain' or-dismiss the bjlb of .the -plaintiffs. -Act as we may feel it our -duty to do, there-is no appeal from our judgment, sávé'-to the amending power of the constitution; which can annul not only-its judgments, but the Court itself. So that- the trúe question is necéssarily,.Whe'thter-'we--will' so exercise. our jurisdiction-as to--give"a-judgment pn'the'merits of the case-as presented by the parties,- who áreeapáhle of -suing and being- sued'i-ri-this Court, in law;or equity, according to1-the-nature of the cáse, and controversy between-the respective .'states.

This'Court,.in-construing the constitution a's> to the grants-of power's'to the United State?, and the restrictions upon the-states, haspver .held, that an exception pf -any particular case,'presupposes that those which are not excepted are embraced within the grant or prohibition: and have laid it down as a general rule; that Wher-e no ex-' ception is made in terms, none-will bfe fnade by inere-implication or -construction. 6 Wh. 378; 8. Wh. 489, 490; 12 Wh. 438; 9 Wh. 206, 207, 216.

Thenthe only question is, whether this case-comes within the rule. <ir. presents an exception, according to the principles of construction. adopted and acted on by this Gourt, in cases involying the expor sition of the constitution and laws of the.United States, which are construed' as other instruments..granting ppwer or' property... 12 Wh. 437; 6 Peters, 738, 740, That some degree of'implication must be given to words, is a proposition of universal adoption:- implication is but another term for meaning and intention, apparent, in the writing, on -judicial inspection'; i£ the. évident consequence,’? 4 Bl. Com. 250; “or some necessary consequence resulting from the law,” 2 Ves. sen. 351; . or the words of an instrument;' in the construction of which, the words, the subject, the-context, the intention of the person using them, are all -to be taken into view. 4 Wh. 445; 6 Peters, 739, 741. Such is the sense in which, the common expression is used in the books, “ express words or-necessary -implication,” such as arise on, the'words, taken, in connection, with cother sourcesof construction; but not by conjecture,.supposition,-or mer,e reasoning-on .the meaning or intention of the writing. . All rules would be subverted if mere extraneous matter should, have; the* effect of interpreting a supreme law, differently-from its obviolis or necessarily to.be implied sense:*. Vide 9 Wh. 188, &c.; so, apparerif as4p dverruíe the -words used; 6 Wh. 380. “-Controversies, betw'eén two' or more states,” “all controversies'of<-a civil nature,where a staters a-party;” .are broad comprehensive terms; by no obvious meaning' of nect-^ary implication, excluding-those which relate-to-the title', boundary, jurisdiction, or sovereignty of - a state. 6 Wh. 378.

- The judiciary act makes certain ’ exceptions, which''apply only to cases of private persons, and cannot embrace a cáse of state against state; established rules forbid the extension of the exception to such cases,-if they.are of a, civil nature. - What.then are “controversies of a civil nature,” between state and state, or more than two states ?

We must presume that congress did not mean to exclude from our jurisdiction tbose controversies', the decision-of which the states had. confided to the judicial power, and are.bound, to give to. the consti’-, tution and laws such a meaning as will make them harmonize, unless, there is an apparent or fairly to be implied conflict' between their respective provisions, ■ In the construction of the constitution, we must look to the history of the times, and examine the state of things existing when it'was fr.amed and .adopted, 12 Wh. 354; 6 Wh. 416; 4 Peters, 431-2; to ascertain the old law,.the mischief and the remedy. It is a part, of the public history of-the United States, of -which we cannot be judicially ignorant, that .at the adoption of-the constitution, there were existing controversies between eleven states respecting their boundaries, which arose under their respective! charters, and had continued from the first settlement of the .colonies. New Hampshire and New York contended for the territory which is now Vermont, until the people of the latter assumed by their own power'the position of a state, and settled the controversy, by taking to -.themselyes the disputed - territory, as the rightful sovereign . thereof. Massachusetts and Rhode Island are now before us;\Connecticut claimed part of New York and Pennsylvania. She submitted to the 'decree of the council of Trenton, acting pursuant to the authority of the confederation, which decided that Connecticut had. not the jurisdiction; but she-claimed the right of soil till' 1800; New Jersey had. a controversy with' New York, which was before this Court in L832; and one yet subsists between New Jersey and Delaware. Maryland and Virginia were contending about boundaries in 1835, when- a suit was pending in this Court;' and the dispute is yet an open one. Virginia and North Carolina contended for boundary till 1802; and the remaining states, South Carolina and Georgia, settled their boundary in. the April preceding the meeting of the general convention, -which framed and •proposed the constitution. 1 Laws U. S. 466. With the full knowledge that there were at its adoption, not only existing controversies between two states singly, but between one state- and two others, we find the words of the constitution applicable to this state of things; “ controversies between two'or more states.” It is not known-that there were any such controversies then existing, other than those which relate to boundary; and it would be a most forced construction to hold that these were excluded from judicial cognizance, and that it was tt> be confined to controversies to arise prospectively on other subjects. This becomes the more apparent, when we consider the context and those parts of the constitution which bear directly on the boundaries of states; by which it is evident, that there remained no power,in the contending states to settle a controverted boundary between themselves, as states competent to act by their-.own authority op the subject matter, or in any department of the government,if it was not in this.

By the first clame of the tenth section of the first article of the constitution, there was a positive prohibition against any state entering into “ any treaty, alliance,or confederation:” no power under the government could make sucir an act'valid, or dispense-with the constitutional prohibition. In the- next clause is a prohibition- against any-state- entering “into apy agreement or compact with'another state, or with a'foreign power, without the consent of congress; or engaging in war, unless actually invaded, or in imminent danger, admitting of no delay.” By this surrender'd' the power, which before the adoption of the constitution was vested in every State, pf settling these contested boundaries, as in the. plenitude of their sovereignty they might; they, could settle them neither by war, or ip peace, by treaty, .compact' or. agreement, without the permission; of the new legislative, power which the; státés brought into -eXistence -by,then-respective and several gránts in conventions of the people. If congress consented, then the states were in this respect restored to their original inherent sovereignty; SUch consent being the sole limitation -imposed by the .constitution, when .given, left the states-as they .were before, as -held by tbis Court in Poole v. Fleeger; 11 Peters, 209; whereby their compacts became of- binding force, and finally settled the boundary between them; operating' with the same” effect as'a treaty between sovereign powers. -That is, that .the boundary •so,estáblished and fixed by compact between nations, become conclusive upon all the subjects and-eitizens thereof, andbind their rights; and are to be-treated to' all intents and purposes, as the true real boundaries. 11 Peters, 209; S. E. 1 Ves. sen. 448, 9; 12 Wheat. 534. -The eon-struction of :such compact is-a judicial.question, and was so considered, by this Court in' the-Lessee of Sims v. Irvine, 3 Dall. 425-54; and in Marlatt v. Silk & M'Donald, 11 Peters, 2, 18; Barton v. Williams, 3 Wheat. 529 33, &c.

-In .looking to the practical construction of this clause of the' constitution, relating to agreements and compacts by the states, in: submitting those which relate to boundaries to congress for its consent, its giving its consent, and the action of this Court upon them; it is most manifest, that by universal consent and action,the word^s “ agreement” and “ compact,” are construed -to include those which relate to .-boundary; yet that word boundary is not used. No one has ever imagined that compacts of boundary were excluded, because not expressly named; on the contrary, they are held by the states, congress, and this Court, to be included by necessary-amplication; the evident consequence resulting from their known object, subject matter, the context, and historical reference to the state of the times and country. No such exception has been thought of, as it would render'the. clause a.perfect nullity-for all practical purposes; esneciallythe Une- evidently intended by the. constitution, in giving to congress the power of dissenting .to such compacts. ■ Not to prevent the' states from settling - their own boundaries, so far as merely affected their relations to each other, but to guard against the derangement of their federal relations with the other states of the Union, and the federal government; which might be injuriously affeóted, if the contractingstates might act upon their-boundaries at their pleasure.

Every reason which has led. to this construction, applies with equal force to the .clause granting to the judicial power jurisdiction over controversies between states, as to that clause which relates ,to com-pacts and agreements: we cannot make an exception of controversies relating' fo boundaries, without applying the same rule to compacts for settling them; nor refuse to include them within .one' general tebm, .When they have uniformly béen included in another. Controversies about boundary, are more serious in'.their consequences upon the' contending states, and their relations' to, the Unión and governments, than compacts and'agreements; If the constitution-has given .to no department the power to settle them, they must, remain interminable;'and as the large and powerful states can take possession to the extent of’ their claim, and the small and weak ones must acquiesce and submit to physical power; the possession of the large, state must consequently be peaceable and uninterrupted;'prescription will be asserted, and whatever may be the right and, justice of the controversy, there- can be no.remedy, though just-rights may he violated. Bound hand and foot, by the, prohibitions of the constitútion, a complaining state can neither treat, agree, or fight with its' adversary, without the consent of congress: -a. resort to. the-judicial power is the-only means left for legally adjusting, or persuading a state which-has- possession of .disputed .territory, to enter into an agreement or. compact*,relating to a controverted boundary, Féw, if any, jvill be made, -when it is left to the pleasure of the state in poS-session; but. when it is known .that some‘tribunal can decide on the rights it is’ mpst probable that controversies will be settled by- compact.

There cari be but two tribunals under the constitution who .can act on the boundaries of states, the legislative or the judicial power; the former, is limited in express terms to assent or dissent, where a compact or agreement is referred to them by. the states; and as the.latter can.bé exercised only by this^Court, when -a .state is -,a party, the •ppwer is here, or it cannot exist. For these reasons we cannot be persuaded that it coüíd have been intended-’to-provide only for the-Settlement of boundaries, when states could;agree; ' and to altogether Withhold the power to-decide controversies on which the states could not agree, and presented the-most imperious call for speedy settlement. .

-There is another clause1 in. the constitution, which'bears ontthis question. -The judicial power extends to “controversies between citizens of different states;” “ between citizens of the samé state-claiming lands under grants of different states.” We cannot but know, judicially, that’the latter classes of-cases must- necessarily arise1 on boundary; and that few if any ever arise from.any other source. If there is a compact between the states, it settles the Jine: of 'original right; it is the law of thé case binding-op-the states and'its Citizens, as fully as if it had beep1 never contested; if there is no compact, then the contróversy must be settled, by adjudging where the’-line of ’boundary.oughttobe, by the laws-and rules appropriate-to. the case. 6 Wheat. 393; 2 Peters, 300. - It is not recollected" thaivany-' such cases have ever arisen, “ btetween citizens of the same state/? as the judiciary acts have made no provision ,for. this exercise of. -this" undoubted constitutional jurisdiction; and it is not/-necessary for tne decision of this eause, to inquire whether a-law is necessary for this purpose; But for- th'e other class' of eases “ cóntrov';,rsies between citizens of different' states,” the’eleventh s.ectiojn of-rthe1 judiciary act makes provisión; and- the. circuit codrts in their original, áhd this? Court in. its appejlate jurisdiction; have décided -on the boundaries' of the states, under whom' the parties respectively Claimj- whether there has been a'comp&ct ornot; ' Th’e jurisdiction of the drciiit court in ■such cases 'was distinctly and expressly , asterted ,by this Court as earlyi-ás 17.99^0 Fowler v. Miller, 3 Dall. 411-12 ; S. P. 5 Peters, 290. In Handly’s Lessee v. Anthony, the circuit court of Kentucky decided oii thfe-boundary between that state aiid Indiana, in an ejectment between-these parties; and thé'ir judgment Was affirmed by this Court. 5 Wheat, 375; 3 Wheats 212—18; S. P. Harcourt v. Gaillard, 12 Wheat. 523. When the boundaries of states can be.thus deí cidfed collaterally in suits between individuals, we cannot,.by anyjust rule of 'interpretation,-declare that this Court cannot adjqdiyate on the question of boundary, when it is presented -directly, ni a controversy between two or more states, and is the only, point ih the cause. Tbere is yet another source of reference, from which to 'ascertain the trué construction of the constitution.

By'the ninth article of confederation adopted by the legislatures of the several states, it is. provided, “.That the United States, in-congress assembled, shall also be the last resort on appeal, in all disputes and differences now subsisting, orwhieh may hereafter arise between two or- more states, concerning-boundary, jurisdiction,-or any other cause whatever.’* . It directed the appointment of a tribunal, whose judgment should be filial and conclusive. It also gave to congress power to appoint a judicial tribunal to decide ón a petition of either of the.párties, claiming land under grants of two or more states, who¡ had adjusted their boundaries, but had previously made the grants on which the. controversy arose. One of the most crying, evils .of the confederation was, that it created no judicial power without the aetion of congress; arid confined the power pf that body to the appointment of courts for the trial of piracies and. felonies committed on the high seas; for determining finally on. appeal, in all cases of captures; and for the adjustment of the controversies before referred ;io. Yet defective as was the confederation- in other respects,' there was'1 full power to finally settle controverted boundaries in tbe- two cases, by an-appeal by.a,-state, or petition of one of its citizens. This power was given from the’universal conviction'of its necessity, in order to preserve harmony among the confederated states; even during the pressure of the revolution. If in this state of. things, it was. deemed, indispensable to. create-a special judicial-power,-for the sole and. express purpose of finally settling all disputes concerning boundary, arise how.they might; when this-power was plenary, its judgment conclusive on the-right; while the other powers delegated to. cprigress, were mere shadowy forms, one ■ conclusion at. least is inevitable. That the constitution' which emanated directly from the people, in. conventions in, the several states, could not have' been intended to give to 4he.judicial power a less extended jurisdiction, or less efficient means •'f fipal action, than the articles of confederation adopted by the mere legislative power of the states,.had -given tp a special. tribunal appointed by congress, whose members were the-mere creatures and representatives of state legislatures,'appointed by them,.without any action by the people of the state.. This. Court exists by a direct grant from the people, of their judicial power; it is exercised by their authority, as their- agent selected by themselves, for the purposes specified; the'people'of the states as they respeclively became parties to the constitution, gave to the judicial power of-the United State’s,-jurisdiction over themselves, controversies between states, between citizens of the same or different states, claim,ing lands under their conflicting grants, within disputed territory. No-fact was more .prominent in our history, none could have been more strongty impressed on the members of the general and state conventions, than1 thát contests for the vacant lands of the.crown, long threatened the dissolution of . the confederation, which existed practically and by. common consent, from 1774 to 1781; when, after five years of discussion,.it was .ratified1 by the legislatures of all the-states. This Court has attested the fact, 6 Cranch, 142; 5 Wheat 376. Similar dangér was imminent, from controversies about boundaries, between the states, tijl provision wás made for their decision,,‘with a proviso, “That no state should.be deprived of territory for the benefit of the United States.” 1 Laws U. S. 17. These-two provisions taken in connection, put an end to any fears of convulsion, by the contests of1 states about boundary and .jurisdiction, when any state could, by appeal, bring the powers of congress and a judicial tribunal into.activity;, and the United States could1 not take any vacant land within the boundary of a state. Hence resulted the principles-laid down .by this Court in Harco.urt and Gaillard? 12 Wheat. 526, thrt the boundaries .of thé United States were the external boundaries of the several states; and that the United States did not acquire any territory by the treaty of peace, in 1783.

Yet though this express provision was made to .settle controverted boundaries by judicial power, congress had no supervision over compacts and agreements between states.as .to boundary, save on grants ■made before the compact; the states did, and could so settle them without the consent of congress, to whom, as no express power on or over the subject of such compacts was ■ delegated, their dissent could not invalidate them.. 'Such was the law of the confederacydúr-ing a common war, when external dariger could not.suppress the danger of dissolution from internal dissentiops;. when owing to the imbecility of congress, the powers of ..the states being reserved for legislative and judicial purposes; and the utter.want of power in the United States to act directly on the people of the states, on the rights of the states (except those in controversy-between them) or the subject matters, on which they had delegated but mere shadowy jurisdiction, a radical change of government became necessary. The constitution, which superseded the articles of'confederation; erected a new government, organized it into distinct departments, assigning, to'each' its appropriate powers, and to congress the, power to pass ■laws for carrying into execution the powers granted to each; so that the laws of the Union could be enforced by its. own authority, upon all-persons and subject matters, over which jurisdiction was granted to any department, or officer of the government pf the United States., It was. to operate 'in a time of peace with foreign powers, when foreign pressure was not in itself some bond of union between the states, ahd danger from domestic sources might be.imminent; to extend the legislative, executive ,and judicial power, alike over persons and states, on the ehumerated subjects by their own grants. The states submitted to its exercise, waived their sovereignty, and agreed to borne to this Court to settle, their controversies with each other, excepting none in terms. So they 'had agreed by the confederation; not only hot-excepting, but in express terms including, all disputes- and differences whatever.

In the front of the constitution is a declaration by the sovereign power from Which it emanated; that it was ordained, “ in order to form a more perfect union, establish justice* insure domes tie, tranquilhty,’’\&c, Whether it. was best calculated to effect these objects jby making the judicial power utterly incompetent to exercise. a jurisdiction'expressly delegated to- the old congress and its constituted, court, over .states and their boundaries, .in the plenitude of absolute power* yet granted only by the legislative power of the several states,; or whether the powers granted'to; this Court by the people of all the states, ought;-by taere construction and implication,, to be held inefficient for the objects, of its creation, and not capable of “ establishing justice’’-between two or more, states; are the direct questions before, us for consideration. Without going further into any general -consideration on the subject, there is one Which .cannot be-overlooked;,and, is imperious in its results.

Under the confederation, the states Were free to settle their controversies of any kind whatever by compact or .agreement; under the constitution they can enter into none without the consent of congress, in the exercise of.its political power;.thus making an amicable .adjustment a political matter for the concurring determination of the' states-and congress, and ,its, construction a matter of judicial cognizance, by any. court to which -the appropriate resort may be- had, by the judiciaryact.

' This has uniformly been . done in - the courts of the states, and Union; ho one has ever deemed such,an exercise of power to be extra-judicial,; or* a case which palled for it to be coram non jüdice. When, therefore; the court judicially inspects the articles-of -confederation, tlie preamble to the constitution, together, with the surrender, bythe -states, of .all powér to settle their contested boundaries, with the express grant of original jurisdiction to this Court; we feel not only, authorized, but bound to declare that it is capable of applying its judicial power; to this, extent at least: 1A To act as-the' tribunal substituted by the constitution in place of. that which existed' •at the time of its- adoption, on the same controversies,-and to a like effect. . 2; As tile substitute Of the contending states, by "their own grant; made in their" most sovereign capacity; conferring that preexisting power, in relation' to their own boundaries, Which they had ■not surrendered to the legislative department; thus -.separating the exercise of political from judicial power, and defining each.

There is bútone power in this Union paramount-fo that -by which, in our opinion, this jurisdiction has beéngranted, and must be brought into action'if it can. That power has been "exerted in. the 11th amendment: but while it took from this Court all jurisdiction, past, present/and future, 3 Dall. 382, of all controversies between states and individuals; it left its exercise over those between states as free as it had been before; This, too; with the full view of the decisions of this Court, and-the act of 1789, ,giving it exclusive jurisdiction of .all controversies of a civil nature, where a state is a party; and there cám- be no subject on which the judicial power can act with a more direct and certain tendency, to effectuate the great, objects of its institution, than the ope before us, If we cannot “establish justice” -between these litigant states, as the tribunal to which they have both submitted, the adjudication of their respective controversies, it will be a source of deep regret to all Who are desirous that each department of the government' of - the Union should have' the capacity of. acting within its appropriate orbit, as the instrument .appointed,by the constitution, so to execute its agency as'to make this bond of union between the states more perfect, and thereby enforce the domestic tranquillity pf each and all..

Deing thus fully convinced that we have an undoubted jurisdiction of this cause, as far as we have proceeded in examining-whether, by a true and just construction of the. constitution and laws, it is included ór excluded, in the grant of judicial power, for any purpose; ,we now proceed to' inquire how,that jurisdiction shall be exerted; whether to retain or. dismiss the complainant’s bill.

. This depends on our jurisdiction over any. pf the matters on. which the plaintiff asks our interposition. • If there is any one subject on which we can act, the bill must be retained: so that the true inquiry is, nob as to the extent, but the' existence of any jurisdiction. 1 Ves. sen. 203, 205; 2 Ves. sen. 356.

The hill pfays; 1. For the ascertaining and establishing the boundary line between the states, by the order of this Court.

2. That the right of jurisdiction and sovereignty of the plaintiff to thee disputed territory may be restored to her, and she be quieted in the enjoymept thereof, and her title thereto; and for further relief. IF w® can decree any relief specially called for, or any other relief, consistently with; the specific prayer, .we'must proceed in the cause. 10 Pet. 228; 8 Pet. 536.

The first prayer is, to ascertain and establish a boundary. -Haying expressed - our opinion that the subject of boundary is' within our jurisdiction, we must exercise it to some extent, and on some matter Connected with; or dependent, upon it; and as the bill is on the> equity side of the Court, it must he done according to the principles and Usages of a court, of equity.

In- the hill; are set forth various. cnaxters from the crown, from 1621, to -1691, and sundry proceedings by the grantees and the crown, in relation, thereto; also' agreements-between, the parties as .colonies and states, for adjusting .their boundaries, and the proceedings- of their respective legislatures and commissioners, in relation thbreto, from-1709, to 1818. The plaintiff relies-on the .charters of the two-coíoniesj as the rule, by which to settle the boundary; on the continued assertion of her rights, as well,by-the charter, as her previous purchase from the Indians: denying'altogether the Validity of the-agreements and subsequent proceedings; averring that they were made tinder misrepresentation and mistake, as'-to material facts. On the other hand, the defendant pleads the agreements as a bar; that they,.are binding, and. have been ratified by the plaintiff:- so that the plaintiff rests his case oh a question of original boundary, unaffected by-any agreement; ,the .defendant rests on. the agreements, without regard to the original charter boundaries. One-asking us to annul, the. other.to enforce the; agreements; one averring continual claim, the other setting up the qyiet, Unmolested possession for. more than a century, in strict conformity to, and by the line in the agreements’. Our first inquiry-then must -be,, as to our .power to settle the boundary: in other words, to decide what portion of the territory in dispute belongs .to the1 one' state or the other,, according -to' the’ line which is their .common boundary. There is nqt in fact, or by any law can be, any territory which does' not belong to One or the other state;' so that the Only question is, to which the territory bp-' longs. This must depend on the right by which each state claims the territory in question.1 Both claim under grants of'contiguous territory,'by the-king, in whom was the absolute propriety and full dominion in and ov,er it; 9 Peters, 745, to 748; 8 Wheat. 595; th:e lin'e'.drawn,, or pointed out,in\.his grant, is therefore that which is designated ill the two charters as the common boundary of both. 5 Wheat. 375.,

The locality of that line is matter of fact, and,.when ascertained, separates the territory of one from the'other;'.for neither state can have any right beyond its territorial boundary. It follows, that whe.n a place is. within the boundary, it is a part of the territory of a state; title;jurisdiction, and. sovereignty, -are inseparable incidents, and rémain so till the state makes some cession. The plain lahguáge of this Court in The United States v. Bevans, 3 Wheat. 386, et seq., saves .the necessity 6f any reasoning on this subject. The question is put by the .Court — What then is the extent of jurisdiction which a state possesses?” “We answer, without hesitation, the jurisdiction of á state is coextensive with its territory, coextensive with its legislative power. The place described, is unquestionably within the original territory of Massachusetts. It is, then, within the jurisdiction .of Massachusetts, unless that jurisdiction has been, ceded to (“ by”) the' United States, lb. 387.” A-cession of territory is. es~ sentially a - cession of jurisdiction', lb. 388. Still the general jurisdiction over the place, subject to this grant of power, (to the United .States,) adheres to the territory as a portion of sovereignty not yet! given aWay. ”, lb. 389.

This principle is embodied in the .sixteenth clause of- the eighth section, f\rst article of the constitution, relative to this district; 'forts, arsenals, 'dock,.yards, magazines; and uniformly applied to all acquisitions of territory by the United States, in virtue of cessions by particular states, or' foreign nations. 5 Wheat. 324; 5 Wheat 375; 3 Wheat. 388, 89; 2 Peters, 300, &c. Title, jurisdiction, sovereignty, are -therefore' dependent questions, necessarily settled when boundary is ascertained, which being the'line of territory, is-the Une óf power over it: • so that great as questions of jurisdiction art3 sovereignty may. <be, they depend in- this case oh two, simple facts;. I. Where is the southernmost point of Charles river... 2. Where is. the point, three. English miles in a, sputh line, drawn from it; When these points áre ascertained, which by the terms are those called for in both, charters;.then' an- east and west line from the second point,.is necessarily the boundary between the' two states; if- the charters govern it;

■ If this Court can,' in a case of. Original jurisdiction, where both parties appear, and the plaintiff rests'his case on these facts, proceed-to ascertain them; there must he an end of this cause when they are ascertained, if the issue between- then) is Open original right by the charter boundaries. We think it does not require reason, or precedent, to show that we may ascertain facts with or without a jury, at our discretion, as the circuit courts, and all others do, in the-ordinary course of equity: our power to examine the evidence in the cause, and thereby ascertain a fact, cannot depend' on itg effects, however important in their consequences. Whether the soveréighty of the United States, of a state', or the property of an individual, depends on the locality of a tree, a stpne, or water-equrse; whether the right depends oñ a charter, treaty, cession, compact, or á Commoii deed; the-.right is to territory great or small, in extent, and power over it, either ofgovernment or private property; the fitle of a state is sovereignty, full and absolute* dominion; 2" Peters, 3Q0, 301;. the title of aft individual such as the state makes it by it's grant and-law

Ño court acts differently-in* deciding on boundary between- states, than on lines between separate tracts of land: if there is uncertainty Where the line is; if.there,is a confusion of boundaries'by the natüre of interlocking grants; the obliteration of marks, the intermixing of, possession under. different proprietors; the effects* of accident, fraud, -or time, of other kindred causes, it is á ease appropriate to equity. An .issue at law- is directed, a .commission, of boundary awarded; or, if ' the; court'are satisfied without, either, they decree* what and where the boundary of a farm, a manor, province, or'a state, is and shall be..

When, no -other matter affects a boundary, a decree settles it as having",bgen by-original right at the place decreed; in the same manner as has b’^en stated where it is settled by treaty or compact; all dependent rights are settled when-boundary*is; 1 Ves. sen., 448 to 450.' If, therefore, there was an issue in this cage, on the locality of the point three miles south of the southernmost point of Charles river, we should be. competent to decide it; and decree where, .the boundary between the states was .in 1629/and 1.663, at the dates of- their'respectiye charter's. ■

On these principles, it becomes "unnecessary to decide on the re* maimng prayers of the billif we grant the first, and settle Boundary,the. othérs. follow; and if'the plaintiff obtains relief as to that, he: wants no other; 'The'established forms, of such’ decrees extend; to every thing;in 'manner or way necessary to' the .final establishment of the boundary, as the1 true line of right and power. between the parties.

This, however, is not a case where there is an issue on original boundary; the defendant does hot rest'on that'fact, but puts .in a' plea setting up an agreement or compact of boundary Between the p'arties while coloniete,.and the actual establishmént of a line agreed on,' run, marked, and .ratified by both colonies, long .possession; and a right' by prescription- to all. the territory north’of such, line, This presents a case on an agreement. on one side, .alleged to- be conclusive upon every matter complainéd of in the bill; on the other, .to be. invalid for the reasons .alleged.,- If this matter of . the plea is sufficient in law,..arid true in fact,.it ends the cáuse; if not so-i.n .both respects, then the parties are Thrown back on- their .original rights, according to their. respective claims to the territory in-question; by charters/ or purchase from the . Indians. If/ then, wé can act at all On the case, we must, on this state of the pleadings, decide on the legal sufficiency of-the plea, if true, as on a demurrer to it; next, off the 'truth of its averments; and thén decide whether it bars ..the complaint of. the plaintiff, and all.relief: if it does not, then, we must ascertain the. fact- on which the whole controversy turns. In the first aspect of the case, it presents a question ofThe most common and .undoubted jurisdiction of a court of equity; ah agreement which' the defendant sets up as conclusive to bar all relief, and the plaintiff; asks to be declared, void, on- grounds of the most, clear and appropriate cognizance in equity; and not cognizable in a court of law.: A false re» presentation made- by offe- party, confided in by the other; as- to .a. fact on which the whole causé depends; the execution, of the agreement, and all proceedings Under it, founded on a mistaken , bélief óf the truth of the fact represented. fWé must, therefore; do-something in the cause; unless the defendants have, in their objections, made out this to be an exception to- the usual- course of equity, in. its action on questions of boundary.

It is said that this is a political, not civil controversy between the parties; and so not within the .constitution, or thirteenth section of the judiciary act.. '

. As it is viewed by the Court, it is. on the bill alone, had it-been demurred to, a Controversy, as to the locality of a- point three ipiles south of the southernmost point of Charles river 5 .which is the only question which can. arise under the charter. Taking the case oh the bill and plea, the question is, Whether the-stake set., up onWrenthám Plain, by Woodword .and Saffrey, in .1642, is the true point from'which-to run an east and west line, as the compact boundary between .the states. In the first aspect of the case,.it depends on* a fact; in the second, dn the law of equity, whether the agreement is void or valid: neither of which present a political controversy, but one„ of an ordinary judicial nature, of frequent occurrence in suits '■between individuals. This Controversy, then, cannot be a political one, unless it becomes so by:the éffect.of the settlement of the boundary; by a decree on the fact, or the.agreement; or because the contest is between states as to political rights and power, unconnected .with the original, or compact boundary.

We will not impute to the men who . conducted the colonies .at hóme, and in congress, in the three declarations of their rights previous to the consummation of the revolution, from 1774, to 1776,. arid its .final act, by a declaration of the rights of the states, then announced to the worldj an ignorance of the effects of territorial boundary between thein, in both capacities. Every déclaration of the old congress wouid be falsified, if the line of territory is held not to have been, from: the first, the line of property and power. The cdngress, which, in 1777, framed and recommended the.articles of confederation for adoption, by the legislative power of the. several strifes; were acting in a spirit of'fatuity, if they thought that a final and conclusive judgment op state boundaries, .was not equally decisive as to the-exercise of political power by a state; making it rightful within', but void beyond the adjudged line.

The meinbers of the general and state conventions, were alike fatriitous, if they did. not comprehend, and know the effect of the states subiriitting controversies between themselves, to judicial power; so were the members of the.first congress of the constitution, if théy could see, and not know, read, and not understand its plain provisions, when:many of them assisted in its frame.

The founders of our government could .not but know, what has ever been, and is familiar, to every statesman and jurist, that all controversies between nations, are, in this sense, political, and not judicial, as none but the sovereign1 can settle them. In ’ the declaration of independence, the states, assumed their equal station' among the powers of the earth, and asserted that they could .of right do, what other independent states could do; “ declare war, make peace, contract alliances;’'’ of consequence, to settle their controversies with, .a foreign power, or1 among themselves, which no state, and ,no 'power could do-for them. They did contract an - alliance with. France, in 1778; and with each other, in 1781: the object of both was to defend and secure their asserted fights as states; but they surrendered tó congress, and its' appointed Court, the right and power; of settling their, mutual controversies;, thus /making7 them judicial questions, whether they arose on boundary, jurisdiction, or any other cause whatever.” There is neither the .authority, of, laW. or,reason for the position, that boundary between nations or states, is,-in its nature, any more a political question, than any other subject' c>n which .they may 'contend., None can be settled Without War or treaty, which is by political poivet; but under the old and.new confederacy,they cóuld and can be settled by a court constituted by themselves, as their own 'substitutes, authorized to do that for states, which'statés alone could do befofe. W are thus1 pointed to the true, bpundary line between political and-judicial power, and questions, -A sovereign decides by his own will, which is the supreme law within his o,wn boundary; 6 Peters, 714; 9 Peters, 748; a court, or judge, decides according to, the law prescribed by the sovereign power, and that'law is the-rule for- judgment. The; submission by the sovereigns, or states, to, a court of law or equity, of a controversy between them,' without prescribing any rule of decision, gives7power to decide according to the •appropriate law-of the case; 11 Ves. 294; which depends on the subject.matter, the sotifce end nature! of the Claims of the parties,-and the law which governs them. From the time of such submission, the question ceases to be a'politieal one, to be decided by the sic volo, sic jubeo, of political power; it comes to the cpurt to be decided by its judgment, legal, discretion, and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; ás it is bound to act-by,know;n and settled principles of national or municipal jurisprudence, as the case requires.

It has never been contended that prize courts of admiralty juris- ' diction, or questions, before them, are. not.strictly judicial; they' deeide on question® of war and peace, the law ofnationS, treaties, and the municipal.Jaws of the capturing nation, by which alone they, are constituted; a fortiori,(if .such courts were constituted by a solemn treaty between the state únjdér whose authority the capture was máde, and the . state whose citizens or subjects suffer by the, capture. All' háfións submit to the. jurisdiction of-such courts oyer their.subjects, ánd hold-their final, decrees conclusive on rights'.of property. 6 Cr. 284-5.

These considerations lead to the definition .-of political.and judicial power and q'uestioris; the former is thát .which a sovereign'Or state exerts, by his or its Own authority,as reprisal and confiscation; 3 Ves. 429; the latter, is' that which is granted 4o a .court or judicial tribunal» So-of-controvefsies'between states;, they are in their nature- politick!, when, the. sovereign or. state reserves loitselft-he right of deciding oii it; makes-it'the “ subject of -a.treaty, to- be settled as between states’ independent,” ’ or “ the. foundation of .representations from state to state.” , This is'pólitical equity, to be adjudged by the parties themselves, as. Contradistinguished from j udicial equity, ádmití,i®terédi by a court of justice, decreeing the .equüm' et bonum of thé cáse, let who. or what be the parties before them. These are the definitions of Jaw as made in the great'.Marylánd case Of Barclay v. Russell, 3 Ves. 435; as they, have'long been, settled, arid established.. Their correctness 'Will hqtested by.a..reference to the question.of original ’.boundary, as.it ever has been,and'yet i® bythe constitution of .England;, which was ours'before the revolution, while Colonies; 8. Wheat. 588; as'it was here from 1771 to 1781, thence. to 1788,..and since by the constitution as expounded by this Cou^t,

' If the -quéstion concerning the boundaries..of contiguous pieces bf land, manors; lordships; or counties pSdatin,e; arises within 'the realm', it wa® cognizable in the high'coúrt. of 'chancery, in an appropriate casé; a mere question of'title'to. any. defined part, was cognizable, only by. ejectment : or real action in a Court oftawj which were in either case judicial questions.. 1 Ves. sen. 446-7. If between counts "Palatine, boundary involved hot only the right of. sod, but; the highest , franchise known to théláW of England, jura-regdia,. to the same extent as the king in right of the crown-and'royal jurisdiction;- Palatine jurisdiction was a qualified sovereignty, till, abridged by .the 24 H. 8. ch. 24, Seld. Tit. Hon. 380, 382, 638, 838; 1 Black. Commentaries, 108-17; 7 Co. 19; Cro. El. 240; 4 D. C. D. 450, &c. The count appointed the judges- of eourts'-of law apd equity ;the king’* , writs-did not run. into his :coupty; .writsweré in hisn^me, and in* dictmepts against "his peaép,Cb. Inst. 204-18. -Yet his jurisdiction; his, royalties,, and jura regalia1, &c., existed oy disappeared, according as a cháncellor should decréeas to boundary. ' Penn y. Baltimore; 1 Ves. sen. 448-9, &c. The king' had no jurisdiction- over* boundáryWithih the realm,, without he'had; it in all his dominions, as the absolute, owner, of the' territory, from whom ,all .title and power must, flow; 1 Bl. Com; 241; Co. Litt. 1; Hob. 322; 7 D. C. D. 76; Cowp. 205—11; 7 Co. 17, b., as.the supreme legislator; .saye a limited jjowér in parliament He could make .and unmake boundaries in any -part of his ¡dominions; -except in .proprietary provinces. He exercised, this power :by treaty, as in 1763, by limiting the polonies to the Mississippi; whose-charters extended to .the South sea.: by proclamation; which was a supreme law,’as in’. Florida and Georgia,. 12 Wheat. 524;, 1 Laws U. S. 443-51; by. order in council; as between Massachusetts and New-Hampshire, cited-in the argument.', But in all cases it was by-his, political power, which was competent to dismember royal; though if was not exercised on the 'chartered or proprietary, provinces. M‘Intosh v. Johnson, 8 Wheat. 580. Ih council, the king had no original- judicial' power, 1 Ves. sen. 447. He decided on appeals from the colonial- courts, settled boundaries, in virtue of his prerogative, where there was no agreement; but if there is a disputed agreement, the king cannot decre'e on it, and therefore, the council rerhit .it to be determined in another place', on the foot of .the contract, 1 Ves. sen. 447. In virtue of . his prerogative, where* there was no agreement, 1 Ves. sen. 205, the king acts, not as a judge, but ad the sovereign acting by tlie advice of his,counsel, the ihembers 'whereof do npt and cannot sit as judges'. . By the statute 20 E. 3, ch. 1, it is declared,' that .££ the king hath delegated his whole 'judicial power fp the judges, all matters of judicature according to the laws,”' 1 Ruff. 246; 4 Co. Inst. 70, 74: he had, therefore, none to exercise: and judges, though members of council, did not .sit in judicature, but merely ás his advisers.

' The courts had no jurisdiction over the colonies, persons or property therein, except in two cases; colonies and provinces being.corporations Under- letters patent, 3 Ves. 435, were 'amenable to the king in thp king’s bench, by quo warranto, which is a prerogative writ; and- a scire facias, in chancery, to.repeal the letters patent, which is a part of the statutory jurisdiction of that- court in such cases, by the court in chancery, also in virtue of the royal prerogative, by which the charter was made. But, chancery could not-act onboum darles in the- royal or chartered colonies: it could act on lords proprietors of provinces,, when they Were'in the realm, where they ivere-Subjects; though in their provinces they were sovereign, dependen! only on-the crown and the general supremacy of parliament. Acts of parliament did not bind them, unless extended to them expressly, or by, necessary consequencé, 2 Ves. sen. 351. 1 They had all. the powers of'counts palatine, the absolute propriety of soil, and the powers, of legislation; the only restraint upon them was-by the powers reserved to-the king by his letters patent, and allegiance to the crown-in-matters of prerogative not granted.' -The power of parliament Was, op the American principle of. the revolution, confined -to the regulation of “external commerce;” though by the English principle, -it extended to all cases whatever* Yet sovereign as they were as to all-things,'except those, relating to the powers of thé king and parliament, chancery coqld and di.d-act'oh agreements between, them as to their boundaries, in the case-of. Penn v. Baltimore;’ though it could not have done so had they stood at arms’ length-; in.which case the kmig in council -could alone, have decided the original boundary on an appeal, 1 Ves. sen. 446. Chancery also could-and-did decide on .the title to the Isle of Man, which was a feudal kingdom:- óñ a bill for discovery of title, relief as to rectories and tithes, which was a mere franchise,-A plea to jurisdiction, was overruled. - Derby v. Athol; 1 Ves. sen. 202;. S. P. Bishop of Sodor & Man v. E. Derby, 2 Ves. sen. 337, 356.

In each of'these cases, objections tó-the jurisdiction were made similar to those mbde in .this, but were overruled;,and neither the-authority or principles of either have been questioned^ on the contrary, they have been recogniséd and adopted by all .courts which follow the course of the law ,of England;' yet-' each involved the same question as the present. In the first, the decree as to boundary settled by 'consequencé the collateral and dependent,questions of title, jurisdiction, and sovereignty, of- and over the disputed territory; in the two last, on a suit for rectories and tithes, the . title to a feudal kingdom was. but a dependent matter, and .'was settled. by deciding that the bishop had a right to the titfies He claimed. The same ..principle was settled in the; case of the Nabob of the Carnatic v. The East India Company, though jt is commonly referred to in favour of a contrary position.

Qn - the original pleadings; the'case was on a bill for;an account founded on two agreements.between the parties, in..1785. andM787; The defendants plead their rights ánd privileges under their charter,' •with power to' maxe peace and war within its limits; that the plaintiff was a.sovereign prince; that the agreements stated-in the bill were made 'with him in their respective capacities, one as dn absolute, the other as a qualified sovereign;, and that the matters therein com tained related to peace and war, and thesecurity aiid defence of their respective territorial possessions.

The plea was considered* and.overruled- by the chancellor; thus exercising jurisdiction to. that extent. 1 Ves. 371, 387, An answer, was then put in, Containing the same .matter as .the plea; adding, that the agreements between the parties were, treaties of a federal character* both being .sovereigns;' and that the agreement of 1787 was a final-treaty; and, therefore, thé subject ipatters thereof, were, cognizable by the law of nations not by a municipal court. The bill was dismissed on this ground; “ It is a case of mutual treaty between persons'actings in that'instance, as States independent of each other; and the eircumstapee.that the East India Company are mere subjects with relation'.to this .country, has nothing to do with that. -That treaty was entered into with them as a neighbouring independent state, and is'-the samé as [f it was a treaty between-two- sovereigns;- and consequently-is not q. subject of municipal-private, jurisdiction.”’ It thus is manifest, ¿hat if the answer had beep to the merits, there miist have been a -decree:' the dismission l'esulted from the new matter added, as is evident frpm theiopinion of the chancellor on.the" plea; and.of lord commissioner .Eyre on the answer, and his closing remarks, in which he declares; that the case was.considered wholly independent of the judgment on. the plea, and was decided on the . answer, which introduced matters showing that it was not mercantile in its nature, but political; and therefore the decision stood wholly clear of the judgment, on the plea.”, 2 Ves. jr. 56, 60.

That, a foreign sovereign may sue in an English court of. law or equity, was settled in cases brought by the king of Spain, Hob. 113.. That á foreign government may sue in chancery, by such agents-as it authorizes to represent them, on whom a cross bill can be served, with such process as will compel them to do justice to the defendant, was decided in the Columbian Government v. Rothschild, 1 Sim. 104. These cases were recognised in The King of Spain v. Machado, by the house of lords; who held that a king had the same right to süe as. any other person, but that when he did sue, in ehancery, it was as any other suitor, who sought or submitted to its jurisdiction; that it could decide on the construction and validity of 'the treaties between’France and the allied sovereigns of. Europe in 1614;, and on the validity of a private and-separate, treaty between France and Spain.

The case involved both questions; both wére. fully considered by the lords,, in affirming the 'decree of the chancellor, overruling the demurrer, 4 Russell, 560; which assigned for cause that the plaintiff had n'ot made put a case for. any'’relief in auourt-of equity, for the reasons, assigned in the argument; that a foreign sovereign could not sue in yirtue of his prerogative rights; that an English court would hot enforce these rights, accruing out of, a treaty with France, which was-inconsistent’ with the existing relations between each of those'countries, (France 'and. Spain;) and the king .of England; 2 Bligh. P. C. new series, 31, 44, 46, 50, 60.

, The court of. king’s bench also will consider the effect of the declaration of independence and treaty. of peace, in an ¿etion on a bond. Folliott v. Ogden, 3 D & E. 730.

From , this view, of- the law of England; the results are clear, that the- settlement of. boundaries''by-the king- in council, is by his prerogative; whiefois political power,acting on a. political' question between-dependent corporation^ or proprietaries, in his dominions without-the,-realin. -' When it is done in hfiancery, it is by its judicial power, in-<£ judicature according to the; law,’-’ and necessarily a judicial question, whether it relates to the' boundary of . provinces; according to an agreement between the owners, as Penn v. Baltimore; the title to a feudal kingdom, in a suit appropriate to equity, wh.erethe feüdal king appears'.and pleads, as in the' case of the Isle of Man; Or oh ah agréement-hetween a foreign sovereign and the East India-Company., in their mere corporate capacity. But'.when the company'assumed the character of a sovereign, assert the ágréement to be' a ^federal treaty,” between them and the plaintiff, as neigh-, b'during Sovereigns, each independent, and the subject matter to be peace and war, political in-its nature, on which no mifnicipal court can act by the law of nations, chancery has no jurisdiction, but to; dismiss .the bill. 'Not' because it is founded - on a treaty; but becausé the defendant .refused to submit it to judicial power: for, had the Company not-made the objection, by their answer,"1 the court must have proceeded .as in The King of Spain v. Machado, and decreed on the validity, as well as the construction of the treaties. The court, in .one case, could not foróe a sovereign' defendant to subunit the merits, of .the cáse to their cognizance; but in the other, when he wás plaintiff, and a subject .was a defendant, Who appeared and plead, the whole subject matter of the pleadings was decided by judicial power, as-.a judicial question; and such has been, and is-the settled course of equity in, England.

. In the-colonies, there -was no judicial tribunal which could 'settle boundaries between them-; .for the-.court of úne could not .adjudicate on thp 'rights of another, unless as a plaintiff. The only power to do it;,remained in the king, where-there was no agreement-; and.in chancery,where there was one, and the parties appeared; so that the question was partly political a,nd partly judicial, and sp remained till the declaration of independence. . -Then the states, being independent; reseryed to themselves the. power of settling their own boundaries; which was necessarily apurely political matter, and so continue*! till 1781., Then, the states delegated the whole'power over controverted’bduodaries to congress,' to appoint and its court to decide, as judge's, and gjve- a final sentence-and.-judgment upon it, as-a judicial question, settled, by- a specially appointed judicial power, as the substitute, of thé king in council, and the court of chancery in a .proper case; before-the .one as a-political, arid the other as a judicial question.

Then came-the constitution, which divided the-power between the political and jttdicial departments, after -incapacitating the states from settling their controversies’ upon . any subject, by treaty, compact, or-, agreement; and coriipletely reversed .the long- established eourse of the Jaws of England. Compacts, and. agreements were referred to the political,, controversies to the judicial power. This presents this part of the cáse in a very -simple .and plain aspect All the states have transferred the decision of their controversies to this Court; each had a right to demand of. it the exercise of the ppwer which they had made judicial .bythe confederation of 1781 and 1788; that we should do that which' neither states or congress could do, settle the controversies between them. We should forget our high duty, to declare to litigant states that we had jurisdiction over judicial, but not the power to hew and determine political controversies: that boundary was of a political nature, and.not a civil one; and dismiss the plaintiff’s bill from our records, without even giving it judicial consideration.. We should equally forget the .dietaté of reason, the known rulé drawn by. fact and .law; tbjstt' from the pature ofia ponfc oversy between kings pr.states, it capnot be judicial; that where,they resérvelo themselves/the final decision, it is of necessity by their inherent political power; not that which has'been delegated' to; the judges,'as, matte.rs . of judicature, according to the law.. These rules and principles have been adopted.by this Court from a' very early period.

• In 1799, it .was laid' down, that though a state could not sue at law for an incorporeal right, as. that of-sovereignty.arid jurisdiction; there was ho reason,wh'y a remedy ocluid not be had.in equity.. That one .state-may file a- bill agairist another, to be. quieted as to lhe boundaries of'disputed territory, and this Court -might'.appbint commissioners, to ascertain and report them; since it is monstrous to talk of •e^istirig rights,, Without correspondent; remedies. 3 Dall. 413. In New Jersey v. Wilson, 'the- only, question in -thé casé .was, ¡whether 'Wilson "held,.certain- lands exempt -from,'taxation. 7 Cr. 164.. In Cohens v. Virginia, the'Court held,, .that the judicial power óf-thé United States, .¡must be- .capable -of .deciding any judicial question growing out'of fhe cohstitution arid .'laws'. That jin one class .of eases, the character of the parties is every thing, the' nature of ,'the case nothing;” in the; other,-“the nature; of, the case is ..every thing, .'the. character, of the parties nothing.’-’- That, the elause. relating tp. cases in law Or equity,^arising under the constitution,, laws, and treaties, makes no exception in terms, or regards “thé condition of the party.” If there- be any exception, it is' to be.implied' a'gainst'tlie express Words of.the article. ■ In -the second class, “the jurisdiction;depends entirely on the character'of the parties,” comprehending “ Controversies between two: or mofe states.” “ If these be, the parties, it. is entirely unihrportarit whát may be the -subject of-,controversy.. Be .it what it may, these parties, have; a constitutional right to come*1 into .the.'courts of-the-Union,.” -6 jVh. 378, 384, 392-3.

In the following Cases it will appear, that the course of the Court 'on the subject of boundary, has been ip accordance with all thé foregoing rules; let the question arise as it may, in a case in equity, or abase in- law, of a civil or criminal .nature; arid whether ¡it affects the fights'of individuals,’of statés, or thé United States, and depends on Charters,- laws, treaties, compacts, or cessions which relate to bo'uhdary. In Robinson v. Campbell, the suit involved the construction of the compact Of. boundary 'between Virginia and North Carolina, made, in 1802; and: turned on the question, whether the land in,-controversy was always-witbin the original limits of Tehnéssee; which the Court decided. 3 Wh. 213, 218, 224. ‘The'United States v.Bevan, was an indictment for miirdér; the, questionsicer'ti'fied for the Opinion of fhis Court Were: 1st, Whether the- place at which -the Offence was committed,, was -within'the jurisdiction- of-Massachusetts;, arid 2d, whether'it was committed within the jurisdiction of the circuit court of that district. • ft was -considered and decided; as a question of 'boundary, 3Wh. 339,386, as before stated'. Jn Burton v. Williams, the case involved a'collision, of interest between North Carolina, Tennessee, and' the United States, under thé! cessions by the former to the two latter, in which this Court reviewed all the' aets of congress'and of the two-states on the subject, and the motives of the parties, to ascertain whether the basus foederis had" ever arisen, The case-also involved the construction of the compact between Tennessee ahd- the'United States, made ip 1806. . The Court hse this lan- , güagé' in .relation ’to • it: -“The members of the'American family possess' -ample 'means '.of defence under the constitution, which we, hope-ages to come' will'verify! But happily, for our domestic. harmony, the -power of aggressive operation against each other is taken, '-away.”- .It-is difficult to imagine what other means of defence existed. in süch .a case,'unleás thoseyhich the Court adopted, by construing the acts recited, as thfe Contracts! of independent states; by those fuleswhich regulate contracts relating to territory and boundary! 3 Wh-' 529, 533, 538. ' In De La Croix v. Chamberlain, it Was held, that “ aquestion of disputed boundary'between two sovereign, independent nations,, is indeed/more properly a subject for diplomatic-discussion and of treaty, than-of judicial investigation. If the ■United'States ánd Spain had settled this- dispute by treaty, before the United States extinguished The claim 'of Spain to the Floridas; .the boundary fixed, by Such treaty would have concluded all. parties.’^ 12 Wh. 600. -Accordingly,-in Harcourt v. Gailliard, which arose on a British grant madein 1777, thé Court .decided thé'case, bf reference tb the treaty of;1763; the acts of the king before the . revolution, !the effect of the declaration,of-independence, and' treaty of peace'-in-178’3, in! order to áscertaih. die original‘boundary between Florida and Georgia; on which the whole case turned. 12 Wh. 524. In Henderson v. Poindexter, thé samé'point arose, and the same course was taken; the treaty of. boundary.'with Spain in 1795, Was also considered by- the Court;-as Well, as the cession 'by Georgia to the United States in 1802, ánd thé various acts of congress on the subject. 12 Wh. 530, 534, &c. In Patterson v. Jenckes, the title depended on the boundary, between Georgia and the,Chefokees; and the only question was, as to the. territorial, limits of. the state, according to ,the treaties with them and that state, which the Court defined, and decided accordingly. 2 Peters, 225-7, &c. Bo they had previously done' in various cases, arising on the boundary, between North Carolina and the Cherokees. 1 Wh. 155; 2 Wh. 25; 9 Wh. 673; 11 Wh. 380. In Foster & Elam v. Neilson, two questions arose : 1. On the boundary of the treaty of 1803, ceding Louisiana to fhe United States, as.it was before the cession of the Floridas, by Spain, by the treaty of 1819: 2d. The construction of the eighth article of that treaty. . Roth claimed the territory lying north of a line drawn east from the Iberville,'and extending from the Mississippi to the Perdido. The,title.to the land claimed by the parties; depended on the .right of Spain to'grant lands within the disputed territory; at the date' of the Spanish grant to th.e plaintiff; in 1804. He, claimed under it, aS being then within. the territory of, Spain; and confirmed absolutely by the treaty of cession:^ the defendant rested on his possession. On the first question, the Court held, .that so long-as the United States contested the .boundary, it-was to,be settled by the two governments, and-not by the Court; but df the boundary bad been-settled between France while she held Louisiana* and Spain while she,held Florida, or thé .Tjnited.States ahd Spain had agreed*on the boundary'after 1803; then the Cob# could decide it as a matter bearing directly on the-title of the plaintiff " On thé. .second question,- they held, that as the' government had up to that time construed the eighth article of the. treaty of 1819, to be a mere stipulation for ■thei future confirmation of previous grants by "Spain, to be made by some' legislative act, and not a presént confirmation, absolute tmd final by the mere force of the treaty itself, as .'a supreme law of the land, the Court was bound not to give a different .construction. Gn that construction", the question was, by whom'‘thé'confirmation shoúld bé máde: - the Gpurt held, thé words of the treaty to be the.language of contract, to be executed by an act of the legislatur.e, of course by political power; tó be éxercised by the congress at its discretion; on which thé. Court could not act. But the Court’ distinctly recognised the distinction, hetween án executory'treaty, as a mere contract between nations, to he -carried into execution by the sovereign power of the respective parties, and. an executed treaty, effecting of itself the objeet.to be accomplished, and defined .the line between.them thus: '“-Our- constitution declares a treaty-to be the law 0f;thé land. It is consequently to he regarded in courts .of justice, as .equivalent-to' an act of the legislature, whenever it operates of itself without the1 aid of any legislátive provision. But when the terms of the stipulation import a eontract; when either of the parties stipulate to perform a- particular act; the treaty addresses,itself to the political, not to the judicial, department; and the legislature must execute the contract, before- it.eañ become a rule for the Court.” .Adopting the construction given by'cóngress, and the bqundary being ■disputed,in 1804,.when the grant was made, the.Court considered -both-to be political, questions; and held them not to be cognizable by. judicial power. 2 Peters, 253, 299, 306, 309, 314, 315. All the principles laid-down in this case, w-ere .folly considered-and affirmed in the United States V. Arredondo;, which arose under an act of congress, submitting to this, Court the final decision of controversies between the United States and all pérsons claiming lands in Florida, under grants, &c. by Spain,..and prescribing, the rules for its decision, among which was the “ stipulations of any- treaty,” &c. Thus acting under the authority delegated by congress,.the Court, held that the construction of the eighth article of the .treaty of 1819, by its Submission to judicial-power, became a judicial questioh; and' on the fullest consideration, held, that it operated as a perfect, present, and. absolute. Confirmation of all the,grants which come within its provision. That no act of the political department .remained- to be done; that it was an executed'treaty, the law of the latid, and .a rule' for the- Court:' 6 Peters, 710, 735, 741, 742, 743. In the United States v.,Perclieman, the Court, ,on considering, the' necessary effect of this construction, repudiated that which had been given in Foster & Elam v. Neilson; 7 Peters, 89. In the ' numerous" cases which have arisen since, the treaty has been taken to be an executed one, a rulé of title and-¡property, and. all questions arising under it to be judicial; and córigress has confirmed the action -of the Court whenever, pecessary! In New Jersey v. New York, the Court were unanimous in considering the - disputed boundary between these states, to be within their .original .jurisdiction, and reaffirming the jurisdiction of the circuit courts, in cases between parties claiming lands under grants from different states: the-only difference of opinión Was on one point, suggested'by one of the judges, whether, as New York had not, appeared, the Court could award compulsory process, or proceed éx parte; a point which does not. arise in-ihis cause, and need not to be considered in its present stage; as Massachusetts has appeared ánd plead to the merits of the.'bifl.

If judicial authority, is competent to- settlé what is the line 'between .judicial and political power, and questions, it appears from.this •view of the law, as administered in England :an<f the- courts of the United States* to have. been. done, without any one decision to the1' contrary, from. the. time, of: Edward the Third. . The statute referred to, operated like our constitution to make all-questions judicial, wlpch were submitted to judicial power,■;by the parliament of England,' the people or legislature of these states, or congress; and when this has been done by the constitution, in reference to disputed boundaries, it will be a dead letter if we did not exercise it now, as - this Court’has done in the cases referred to;

The course of the argument made it necessary for the Court to pursue that which has befen taken. Having disposed, of the leading objection to jurisdiction, we will examine the others.

It has been argued by the- defendant’s counsel, that by the declaration of independence, Massachusetts became a sovereign state over all. the territory ip her possession, which. she(claimed by charter or ■agreement; in thé enjoyment of which- she cannot be disturbed:'

To .this objection there are-two obvious answers: .1st. By the thir.d article of confederation, the states.entered into a mutual league for the defence of their sovereignty, their 'mutual and general wfel-. fare;' being thus allies in the War .of, the revolution, a settled principle of the law of nations, as laid down by this Court, prevented one from making any acquisition at the expense of' the Other; .12 Wh. 525-rb. This ailiancé continued, in war and péacé, till 1788; when; ¿d: Massachusetts surrendered-the.right to judge-of her-own boundary, and submitted the power of deciding a controversy, concerning it tó this.Court. 6 Wh. 378, 380, 393.

It is said; that the people inhabiting the disputed territory, ought •to be made parties, as their rights are .affected.. It1 might-with.the* same reason be objected, that a treaty or Compact settling boundary, required the assent of the people to make-it Valid, ánd-that a1 decree under-the. ninth article .of. confederation was-void.; as -the authority ■to make it was derived from the legislative power'only. ‘ The samé Objection was overruled ’ in Penn v. Baltimore; and in Poole v. Fleeger, this Court-decláred, that an ,agreement'..between states*'consented to by copgress, boupd the citizens Of each' state; .Thére.are two principles of the' law of nations, which would protect-theih in their property: 1st. -That grants-by a government, de ,facto,.di' parts of a.dísputed territory in- its/possession,-.arfe valid against, the state-which had the-'right ’• 12 Wh. 600-1.. 2d. That-when-a territory ,is acquired bv treaty, cession; oy even'conquest, the rights oí the.inhábitánts to property,’ are respected. add sacred., 8 Wh. 589; 12 Wh. 535; 6 Peters, 712; 7 Peters, 867; 8 Peters, 445; 9 Peters, 133; 10 Peters, 330, 718, &c.

■ It has1 been contended, thkt this Court cannot .proceed, in this. cause; without somq process' 'and rule, of decisión prescribed approipriate -to the-case; but-no question .‘on process Can- arise on these pleadingsy-n'One is now necessary,'as the defendant ha,s appeared, and plead, which plea in itself .makes the first point in the cause; without, any additional proceeding-; that is, Whether the .plea, shall be allowed if, sufficient in law to bar. the complaint, or. be overruled, as notbfeing a bar in law, though true in fact. In. this state of the case; it is that of. the Nabob v. The East India Company, where the plea - was overruled on that ground;-whereby the defendant was-pub., to áji answer,-,assigning additional grounds, to sustain á motion to dismiss;' or the plea is allowed, the-defendant must .next prove, thetrüthbfthé.matters set. Up. When that-is. done, the Court must decide according- to: 'the law of equity;. 1 Ves. sen. 446, 203; whether/the .agreement plead shall-settle, .or leave the -boundary open to' a settlfe-., ment by, Quyjudgmfent) according.to -the law of .nations, the charters from the-.'crdwn under which' hoth/parties claim,-aS-in -5 Wheat 375; by the law of prescription, as cláimed by the defendant, oh the same-principles which have been rules for the action' of.this Court in the,case 1 Ves. sen. 453; 9 Peters, 760.

It -is. further’ dbjected, that though-., the - Court may render,, they cannot execute-.a decree without an act of congress maid.

In-testing.this-objection-bydhé-cómínon’law, there can be no diffi; ficulty in decreeing, ag in Penn vi -Baltimore; mufatig mutandis; That thé.-agreemeñt. is valid, and - binding between-the,-parties; appointing commissioners .to ascertain and mark the line therein, design ‘ Bated; order-their proceedings to be returned- to the Court-; 3 Dali 412, note;- decree thát the parties should quietly.hold-according, to, the articles; that ..the citizens on ; each side- of ’the line.- should be bound thereby, áo far .ahd.no' farther than the states, could bind them hy a compact, with the- assent of congress, (11 Peters 209;) 1 Ves. sen. 455; 3 Ves. sen., supplement by Belt. 195, 197. Or if any dif-. ficulty should occur, do as declared in 1 Ves. sen.; if the parlies want anything more to be done, they must resort .tcf, another jurisdiction, which is appropriate to the causé of .complaint, as the king’s bunch", or the kingin' council.. Vide United States v. Peters, 5 Cranch, 115, 135, case of Qlmsteád; make' the decree without prejudice to the (United States;) or any persons-whomcthe parties :oould riot. bind. And in case any person,, should obstruct, the execution of the agreement; the' party to be at liberty, from tipie -to time, to apply to the Court. 1 Ves. jr. 454; 3. Ves. sen. 195, 196.: Or, as the only question is one of jurisdiction, which the Court’ will-not divide, the'y will retain the hill,, and direct the .parties to .a forrim .proper to decide collateral questions.. 1 Ves. sen. 204, 205; 2 Ves. sen. 356, 357; 1 Ves. sen. 454; 5 Cranch, 115, 136. On the.other, hand, should the agreement not be .held binding,-the Court will decree the boundary to be ascertained agreeably to the charters, according-to tbe alteredcircunistances of. the case ; by which-the boundary being established; the rights, of the parties, will be. adjudicated, and the párty iti whom it is adjudged may enforce it by the prócess appropriate to the case; civilly-;or eri-:. minally, according, to. the laws of. the state, in-which the aet which violates the right is committed.- In ordinary cases, of boundary, the fundi,ons of a court of equity consist in settling it by-a final deCree, defining arid confirming it when run. Exceptions,as they arise, must be acted .on. according to the circumstances. •

In England, -right will be administered to a subject against the :king, as a matter of. grace; but not.upon compulsion, not by. writ, but petition to the chancellor, 1 Bl. Com. 243; fqr no writ or pfocess can issué against the. king,.for the plain reason givenin 4 Co. 55, a.; 7 Com. Dig., by Day; 83; Prerog. D. 78; 3 Bl. Com. 255; .“-that! the king cannot command himself.” No exeeu tion .goes out on a judgment or decrée against him, on p- monstrans de droit or petition,Of fight, or traverse of an inquisition which had been taken in his favour; for this reason, that as the law-gives,him á prerogative for. the. benefit of his subjects,.! BL Com. 255, he is presumed never to do a wrong, or refuse a right to a subject;, he is presumed to have done the thing decreed, by .decreeing in his courts that it shall be done; such decree' is executed by the lgw as soon as it is rendered; and though process is made Out to maké the record complete, it is. never taken from the office. Co. Ent. 196; 9 Co. 98, a.; 7 D. C. D. 83, The party in whose favour á decree is made, for removing the lands of the king from the possession of a subject, Or declaring a seizuré unlawful and awarding a writ, de libértate, is, eo instanti, deemed to be in actual possession .thereof; so . that a. feoffment; -with livery qf seisin, made ' before it is actually taken, is as valid as if made afterwards. Cro. El. 523; S. P. 463.

. Thie same principle^ was, adopted by the eminent jurists of the revolution, in, the ninth article of.' the confederation, declaring that the sentence of the Court in the .cases provided for, should be final and conclusive,,and with .the, other proceedings ip-the case, be transmitted to congress, arid lodged among their acts, for-the.security of the parties concerned, nothing further being deemed necrissary. The. adoption of this* principle, was indeed , a necessary-effect of the revolution, which devolved on each- state the prerogative df the king as . he had held it in the colonies; 4 Wheat. 651; 8 Wheat. 584, 588; ánd now holds it within- the realm of Englarid; .subject to the, presumptions attached to it by the’ common . Jaw, which gave, and by ' which it must be exercised. This Court cannot presuriie,.that any state which holds prerogative rights for the good qf its citizens,’and by the. constitution has. agreed that tnose Of. any Other state shall enjoy rights, privileges, and immunities'.in .each, as its .own do, vyould. either do wrong, or dqny right to a sister state or .its' citizens, Or. refuse to-submit to those decrees, of'this Court, rendered' pursuant to, ,its own delegated .authority; when' in' a monarchy, its fundamental law declares that such decree-'-executes itself. When? too, the’ nighest courts of a kingdom-have most soleirinly .declared that when the king is.a trustee, a court of chancery will enforce the, execution of a trust by a royal trustée; 1 Yes. Seri..4.53; and that' when a- foreign king is a plaintiff, in a court of equity, it can dd-complete justice; impose any terms it thinks proper; has him in its power, and completely under its control and jurisdiction;' 3 Bligh; P. C. 57; we-ought not to doubt as to-'the course of á state,of this Unión; as-a contrary one would endanger its peace, if not its existence.- In the case of -Qlmstead, this Court expressed its opinion, that if state' legislatures máy annul th'e judgments of .the courts of'the United States,' and the rights therfeb-y accquired,,the constitution becomes a solemn mockery, and the nation ’is.deprived of the meads' of enforcing its' laws,- by its- own tribunal. So, -fatal a result must be' deprecated by all; arid the people of every state must feel a deep interest in resisting'principles so .destructive of the Union, and in averting consequences so fatal to themselves: 5 Peters 115,13,5.

■ The motion of the defendant is, therefore, overruled.

Mr. Chief Jiistice Taney,

dissénting:

I ,diásen,t from -.the opinipn of 'the Codft, upon the'.motion' to' dismiss the bill. It has; I find, been the uniform practice in this. Court,, for the justices who. differed from- the Court pn constitutional-: questions, to- express 'their dissent. In conformity to • this usage, I proceed to staté'briefly the ■principle; .on which I differ, but do not,.in this stage óf the. proceedings, think it necessary' to enter fully into the reasoning upon' which my opinion is fou'ndedj' The final, hearing of -fhé. case, when ali the facts are before the: Court; would be a',more.fit ■ occasion for'■éxámi’hingr various points stated In the, opinion of"th.e Court; ih'which l-dp ífot concur..

1 dp ■ not doubtsthe’ power pf. tBis'Court to hear and determine a. licontrdversy' between states,, or 'between, individuals, in- relation to the'boundaries of the states; Where, the suit is brought to try a right of property in the soil, :or 'any other right which is properly, the. subject, óf judicial cognizance and,; decision, and,which depends upon the true’, boundary line.

But''the powers given to' the courts of the United States'’by the constitution are judicial powers;, and extend -to'those subjects, only; which are -judicial in .their character; and■ not. to those which-.-ar,e political, And'whethef the suit is.between states of' between individuals, the matter -sued -for-must be one whieh is properly the 'Subject of .judicial; cognizance and control, in order to give jurisdiction to the Court to try and decide'the flights" óf the parties to-' the,stuff ■

The object of the bill filed by- Rhode Island; as stated.io the prayer, is a’s follows: That the'northern boundary'line between your .complainants arid the'state of Massachusetts may, by the order -and decide of- this .honourable Court, be ascertained and established, and that, the-rights of jurisdiction and sovereignty, of your complainants to the whole tract of. land, with the appurtenances mentioned, described, and granted, in and by the said Chapter or letters patent to the said ■ colony of Rhode Island and Providence plantations, hereinbefore .set forth and running on the. north, an, east and west line drawn three miles south of the waters of said Charles river;'or of. any' or every part1 thereof, may be restored and confirmed to your complainants, and your Complainants may be quieted' in the full and free enjoyment of her jurisdiction-and .sovereignty over the same; and the title, jurisdiction; anfi sovereignty óf the said state of Rhode Island, and Providence Plantations over the same;, be confirmed and esta-, blished by the decree of this honourable.Court; aiid that your complainafits may have; such othef and' further relief in the premises as to this honourable'Court shall seerh meet, and consistent with equity arid good .conscience.:

It appears fróm this statement of the object of the bill, that Rhode Island claims no right, of property in the soil of the territory'in controversy. The title to the land is not in, dispute between her and Massachusetts: The subject matter which Rhode.Island seeks to recover from Massachusetts, in'this'suit,-is, “sovereignty and jurisdiction,” up to the boundary dine described -in her bill: And she dcsireifto establish.this line as the true boundary between the. states; for the purpose of showing that she is entitled to recover from Massachusetts the sovereignty and jurisdiction which Massachusetts now* ■holds over the territory in' question.'. Sovereignty ahd jurisdiction ate not ¡matters of property; for thb allegiance in the disputed territory cannot be. a matter of property. Rhode Island; therefore, sues for political rights. They .are the. only matters in controversy, arid the only things to be recovered¿ and if she succeeds in this .suit; she' .will recover political rights over .the territory in question, which are now withheld from her by Massachusetts'.-

Contests -for rights of Sovereignty and jurisdiction betweeft states over'any particular territory! are not; in my, judgment,'the subjects of judicial cognizance and control,- to be recovered and enforced in an ordinary suit ; and are, therefore", riot-within the grant of judicial power contained iri the constitution.

Iri the case of New York v. Connecticut, 4 Dallas, 4, in the note, Chief justice Ellswprth-says, “ To have the benefit of the agreement between the ¡states, the defendants below, who aré the settlers of New York, must apply'to a Court of equity, as well as the state'herself;' .but in no cáse can a specificperformahee be decreed, unless there is a substantial right of soil, not a mere right of political jurisdiction,'to be protected and enforced,”

In the case of The Cherokee Nation v. The State, of Georgia, 5 Peters, 20, Chief Justice Marshall, in delivering the opinion of the .Court, said: “ That part of the bill which respects the land occupied by the Indians, and prays the aid of the Court to protect their possession, may be more doubtful; The mere question of right might, perhaps, be decided by this Court, in .a'proper case, with'proper parties. But the Court is askéd to do more than decide on the title. The bill requires us to control the legislation of Georgia, and to restrain the exertion of its physical forcé. The propriety of such an interposition by the Court may be well questioned-. It savours too much of the exercise of political power to be Within the proper province of the judicial department. But the opinion oh the point respecting parties makes it unnecessary to decide this question.”

In the case before the. Court, We are called on. tp protect' and' enforce the mere political jurisdiction” bf, Rhode Island; and .the bill of the complainant, in effect, asks us‘to control- the legislature of Massachusetts, and to restrain the eXercisé of Its physical force” within the disputed'territpry. According to the opinions above referred to, these questions do. not belong to the judicial-.department. T-his construction of the constitution is, in my judgment,; the -. true one; and ,1 therefore think the proceedings in this case ought to be dismissed for want of jurisdiction.

Mr. _ Justice Barbour said,' that- he concurred in the result’of the opinion in this case. That- this Court had jurisdiction 'to settle the disputed boundary'between the two states, litigant -before it. But' he wished to be understood, as not adopting all the reasoning-by .which the Court had arrived at its conclusion. - . .

Mr. Justice-Storv did not sit in this case.

On considerationuf the motion made by Mr,.Webster ion a-prior day of the present term of-this Court* to- wit, op Monday, the l-5th day of January, A. D.1838, to dismiss the-complainant’s bill- filed in this case for. want of jurisdiction, and of the arguments of counsel thereupon had; as well .in support-of, as against the said/motion: It. is noW here ordered and adjudged, by this Cohrt, that the. said motion, be,and the samé is hereby overruled;  