Henry Baldwin

“ None can be settled without war or treaty, which is by political power; but under the old and new confederacy they could and can be settled by a court constituted by themselves, as their own substitutes, authorized to do that for states, which states alone could do before. We are thus pointed to the true boundary line between political and judicial power, and question. A sovereign decides by his own will, which is the supreme law within his own boundary ”

“ 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 its effects, however important in their consequences. Whether the sovereignty of the United States, of a state, or the property of an individual, depends on the locality of a tree, a stone, or water-course; whether the right depends on a charter, treaty, cession, compact, or a common deed ”

“ Rhode Island, therefore, sues for political rights. They are the only matters in controversy, and 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 between 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, not within the grant of judicial power contained in the constitution. ”

“ We should equally forget the dictate of reason, the known rule drawn by fact and law; that from the nature of a controversy between kings or states, it cannot be judicial; that where they reserve to themselves the final decision, it is of necessity by their inherent political power; not that which has been delegated to the judges, as matters 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 and jurisdiction ”

“ That the constitution which emanated directly from the people, in conventions in the several states, could not have been intended to give to the judicial power a less extended jurisdiction, or less efficient means of final action, than the articles of confederation adopted by the mere legislative power of the states, had given to 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. ”

“ Act as we may feel it our duty to do, there is no appeal from our judgment, save to the amending power of the constitution; which can annul not only its judgments, but the Court itself. So that the true question is necessarily, whether we will so exercise our jurisdiction as to give a judgment on the merits of the case as presented by the parties, who are capable of suing and being sued in this Court, in law or equity, according to the nature of the case, and controversy between the respective states. ”

“ Where no inferior court can have jurisdiction of a case in law or equiry, 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 judicial 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 by submission to the process. ”

“ Few, if any, will be made, when it is left to the pleasure of the state in possession; but when it is known that some tribunal can decide on the right, it is most probable that controversies will be settled by compact.
There can 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 be exercised only by this Court, when a state is a party, the power is here, or it cannot exist. ”

“ A motion to dismiss, therefore, cannot be entertained, as it does not and cannot disclose a case of exception; and if a plea in abatement is put in, it must not only make out the exception, but point to the particular court to which the case belongs. ”

“ A motion to dismiss a cause pending in the courts of the United States, is not analogous to a plea to the jurisdiction of a court of common law or equity in England; there the superior courts have a general jurisdiction over all persons within the realm, and all causes of action between them. ”

“ 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 judiciary act. ”

“ It is said, that the people inhabiting the disputed territory, ought to be made parties, as their rights are affected. It might with the same reason be objected, that a treaty or compact settling boundary, required the assent of the people to make it valid, and that a decree under the ninth article of confederation was void; as the authority to make it was derived from the legislative power only. The same objection was overruled in Penn v. Baltimore; and in Poole v. Fleeger, this Court declared, that an agreement between states, consented to by congress, bound the citizens of each state. ”

“ A plaintiff in law or equity, is not to be driven from court to court by such pleas; if a defendant seeks to quash a writ, or dismiss a bill for such cause, he must give the plaintiff a better one, and shall never put in a second plea to the jurisdiction of that court, to which he has driven the plaintiff by his plea. ”

“ There is another clause in the constitution which bears on this question. The judicial power extends to 'controversies between citizens of different states;' 'between citizens of the same state claiming lands under grants of different states.' We cannot but know, judicially, that the latter classes of cases must necessarily arise on boundary; and that few if any ever arise from any other source. ”

“ But when the company assumed the character of a sovereign, assert the agreement to be a 'federal treaty,' between them and the plaintiff, as neighbouring sovereigns, each independent, and the subject matter to be peace and war, political in its nature, on which no municipal court can act by the law of nations, chancery has no jurisdiction but to dismiss the bill. ”

“ All rules would be subverted if mere extraneous matter should have the effect of interpreting a supreme law, differently from its obvious or necessarily to be implied sense: Vide 9 Wh. 188, &c.; so apparent as to overrule the words used; 6 Wh. 380. 'Controversies between two or more states,' 'all controversies of a civil nature, where a state is a party;' are broad comprehensive terms; by no obvious meaning or necessary implication, excluding those which relate to the title, boundary, jurisdiction, or sovereignty of a state. ”

“ Controversies about boundary, are more serious in their consequences upon the contending states, and their relations to the Union 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 ”

“ 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 such a case, unless those which the Court adopted, by construing the acts recited, as the contracts of independent states, by those rules which regulate contracts relating to territory and boundary. ”

“ 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 sovereign can settle them. ”

“ 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 miles south of the southernmost point of Charles river; which is the only question which can arise under the charter. Taking the case on the bill and plea, the question is, whether the stake set up on Wrentham 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 ”

“ 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 the 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. ”

“ In ordinary cases of boundary, the functions of a court of equity consist in settling it by a final decree, defining and 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; for no writ or process can issue against the king, for the plain reason given in 4 Co. ”

“ 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, and danger from domestic sources might be imminent; to extend the legislative, executive and judicial power, alike over persons and states, on the enumerated subjects by their own grants. The states submitted to its exercise, waived their sovereignty, and agreed to come to this Court to settle their controversies with each other, excepting none in terms. So they had agreed by the confederation ”

“ That in one class of cases, '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 clause relating to cases in law or equity, arising under the constitution, laws, and treaties, makes no exception in terms, or regards 'the condition of the party.' If there be any exception, it is to be implied against the express words of the article. ”

“ On the 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 the future confirmation of previous grants by Spain, to be made by some legislative act, and not a present confirmation, absolute and 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. ”

“ In the first, the decree as to boundary settled by consequence 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 dishop had a right to the tithes he claimed. The same principle was settled in the case of the Nabob of the Carnatic v. The East India Company, though it is commonly referred to in favour of a contrary position. ”

“ When, too, the nighest courts of a kingdom have most solemnly declared that when the king is a trustee, a court of chancery will enforce the execution of a trust by a royal trustee; 1 Ves. sen. 453; and that when a foreign king is a plaintiff, in a court of equity, it can do complete justice; impose any terms it thinks proper; has him in its power, and completely under its control and jurisdiction, 2 Bligh. ”

“ 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 when a place is within the boundary, it is a part of the territory of a state; title, jurisdiction, and sovereignty, are inseparable incidents, and remain so till the state makes some cession. The plain language of this Court in The United States v. ”

“ If this matter of the plea is sufficient in law, and true in fact, it ends the cause; if not so in 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, we 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 ”

“ 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 affected, if the contracting states might act upon their boundaries at their pleasure. ”

“ 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 grant by the crown and acceptance by the colony of a new charter, subsequent to the charter to Rhode Island. ”