“ It is agreed by the answer, that the ratitication of these contracts by the legislature of Rhode Island is essential to their validity. Did the legislature of Rhode Island ratify a contract establishing a line three miles from a tributary stream contrary to the charter, or three miles from Charles River according to the charter? If a knowledge of the secret facts, the localities, and the true meaning of the map was essential to bind the commissioners, was it not equally essential to bind the legislature? The obvious meaning of the contract is three miles from Charles River proper. ”

“ More than two hundred years have elapsed since the emanation of the Massachusetts charter, calling for this boundary; and more than one hundred and eighty years, since the date of the Rhode Island charter. In looking at transactions so remote, we must, as far as practicable, view things as they were seen and understood at the time they transpired. There is no other test of truth and justice, which applies to the variable condition of all human concerns. ”

“ We find, then, that Massachusetts herself, in 1636, and all the grantors of Massachusetts, the Plymouth Council as to the territory, and the king and council as to jurisdiction, had given to these words, 'three miles from Charles River,' the construction which Rhode Island now gives to them; the construction which has been given to them among all nations and in all ages. ”

“ That the respondents have a perfect and indefeasible title to soil and jurisdiction up to the existing line, by prescription, a title resting on a possession of more than a century, the highest and most sacred of the titles of nations. ”

“ The artificial system prevailing in the courts of common law and equity, in England and in this country, has been more largely inflated, and made deeper and broader encroachments upon the domain of practical justice and common sense, than any previous system within the range of our learning. Yet that system, extended as it has been by ambitious book lawyers and book judges, contains no form of action capable of bringing time into hostility with any one of the rights or claims of Rhode Island, in the present case. ”

“ To forego the performance of a duty does not impregnate time quite so quick with a presumption of the absence of all rights, as to forego the enjoyment, it may be, of many thousands of dollars of income, claimed by another, enjoyed by another, with a denial of our right by another. ”

“ The ambitious pretensions of Massachusetts to an extension of her jurisdiction over New Hampshire and Maine, the territorial rights to which were in Mason and Gorges, arose out of the fact, that, after 1636, the inhabitants of New Hampshire, being destitute of the powers of government, petitioned the General Court of Massachusetts to be taken under their government and protection. Massachusetts refused to grant these petitions for a number of years. She had erected her bound-house three miles north of the Merrimack proper. ”

“ If a party, ignorant of plain and settled principle of law, is induced to yield a portion of his indisputable right, equity will relieve; but where title is doubtful, and with due deliberation he enters into compromise, no relief is given, nor is consideration inquired into. ”

“ The more modern authorities are all collected in Best, and the well settled doctrine in England and in this country now is, that the presumption of a grant is a case of circumstantial evidence, of which time constitutes but a single link.
A jury must believe that a grant was actually made. ”

“ All the public and private grants of towns, corporations, and individuals referred to the main stream as the Charles, and to this brook as Jack's Pasture Brook, or Mill Brook.
The people of Massachusetts made the same distinction between a river and a brook, one of its tributaries, that all the other members of the human family had made from the creation of the world down to that period. We say, therefore, that the words of the charter admit of but one construction, and never have received a different construction. ”

“ The words of the Massachusetts charter, 'lying within the space of three English miles on the south part of Charles River, or of any or every part thereof,' do not convey so clear and definite an idea as to be susceptible of but one construction. Whether the measurement of the three miles shall be from the body of the river, or from the head-waters of the streams which fall into it, are questions which different minds may not answer in the same way. That the tributary streams of a river, in line sense, constitute a part of it, is clear ”

“ This reason, in many cases, if not in all, would apply but awkwardly to jurisdiction,-a duty, and oftentimes an onerous, sometimes a dangerous, duty, which, instead of courting, we gladly escape from,-and not, like property, an enjoyment, a benefit, indeed, the greatest of worldly blessings in the opinion of the mass of mankind. ”

“ In 1801, a suit in chancery was instituted by the plaintiff. Much evidence was offered on both sides. Bayley, Justice, told the jury, 'that the real question was, whether they believed that a conveyance had actually taken place.'
The court approved of this direction, and said,-'In cases where the original possession cannot be accounted for, and would be unlawful unless there had been a grant, the case may be different. Here the original possession is accounted for, and is consistent with the fact of there having been no conveyance. ”

“ If a person, after due deliberation, enter into an agreement for the purpose of compromising a claim made bon a fide, to which he believes himself to be liable, and with the nature and extent of which he is fully acquainted, the compromise of such a claim is a sufficient consideration for the agreement, and a court of equity, without inquiring whether he in truth was liable to the claim, will compel a specific performance. ”

“ That the construction of the complainant is not a forced one is admitted; and the conclusion naturally follows, that men of equal intelligence may differ in opinion as to the true meaning of the instrument. That Massachusetts more than two hundred years ago construed the charter as her counsel now construe it is clear, and the facts proved authorize the conclusion, that this construction was not, for many years, opposed by Connecticut or Rhode Island, and at no time by Plymouth. ”

“ But it is difficult to contend, 'that there can be any matter of fact which a jury may not presume from possession and circumstances, when that possession and circumstances are sufficiently strong to convince them of its existence. The true conclusion seems to be, that in the case of a memorial of a deed requiring registry, the court will not direct them to make any artificial presumption.'
Best cites 1 Greenleaf's Law Ev., Ar. ”

“ It is a general principle, that where a contract is entered into for the purpose of executing the provisions of a prior instrument, by which the rights of the parties are settled, and the subordinate contract declares that it is made in pursuance of the prior instrument, that any departure from that instrument is presumed to be by mistake. ”

“ It is not clear that the calls of the charter were deviated from by establishing the station of Woodward and Saffrey. But if in this respect there was a deviation, Rhode Island was not the less bound, for its commissioners were authorized to compromise the dispute. Surely this, connected with the lapse of time, must remove all doubt as to the right of the respondent under the agreements of 1711 and 1718. No human transactions are unaffected by time. Its influence is seen on all things subject to change. ”

“ Williams, 7 Wheat. 59, this court decided, that 'Presumptions of a grant, arising from a lapse of time, are applied to corporeal as well as to incorporeal hereditaments. They may be encountered and rebutted by contrary presumptions, and can never arise where all the circumstances are entirely consistent with the non-existence of a grant. A fortiori, they cannot arise when the claim is of such a nature as is at variance with the supposition of a grant.'
'Legal presumptions generally apply to facts of a transitory character, the proper evidence of which is not usually preserved with care ”

“ No other grant from the crown can be presumed (than the charters of 1628, 1691) , enlarging the limits of Massachusetts, because all such grants are enrolled, and by the well settled law of England an enrolment cannot be presumed without proof of a spoliation or hiatus in the record. In 3 Barn. & Ala. 150, Abbott, C. J., says,-'No instance can be found, where the court have said that an enrolment has been presumed.' See, also, Best on Presumptions, 149. ”

“ This boundary was claimed by Massachusetts, after the old colony of Plymouth was annexed to it. Up to this time, no dissatisfaction seems to have been expressed by Rhode Island to the Woodward and Saffrey line; and it is deemed unnecessary to state its acts in detail subsequently, showing its objections, as they led to no practical result. They can be of no importance, except in so far as they may conduce to rebut the presumption of acquiescence from the lapse of time. ”

“ But with the exception of the case of a mortgage, and one or two other analogous cases, time alone, unaided by circumstances, is never sufficient for the third form of its action, by way of presuming a grant.
In Mayor of Kingston v. Horner, Cowper, 102, Lord Mansfield says,-'A jury is concluded by the statute of limitations. So in the case of prescription, if it be time out of mind, a jury is bound. Any evidence showing a time when the claim did not exist is an answer to prescription.' p. 109. ”

“ That it cannot operate to transfer four miles of the acknowledged territory of Rhode Island, because Rhode Island, as a colony, had no power to transfer her jurisdiction to Massachusetts.
3. That no confirmation can be presumed, because a confirmation of a void agreement is void itself.
4. Because a confirmation must have been of record in England, and also in Massachusetts, if not in Rhode Island; and that no case has gone the length of presuming the loss of a record, without some foundations being first laid to support such presumption. ”

“ It certainly cannot be assumed against transactions which strongly imply, if they do not prove, the knowledge. If the Rhode Island commissioners were misled in the first agreement, as to the locality of this station, it almost surpasses belief, that, seven years afterwards, the subject of the line having been discussed in Rhode Island, and such dissatisfaction being shown by the people as to lead to a new commission, the second commission should again be misled. ”

“ Property passes from parent to child, it is transmitted by will, transferred by deeds and other instruments, and in the course of forty or fifty years it acknowledges, it may be, as many distinct owners, many if not the most of whom took it for granted, that the peaceable and undisturbed possessor was the legitimate and undoubted owner. ”

“ She has no heirs, or devisees, and but here and there a purchaser. Third persons will not be discouraged from making improvements by large expenditures of money, because in the first place there are no third persons connected with jurisdiction, and in the next place, jurisdiction amplifies and enlarges itself without expenditures of any kind, and the policy of the law is to restrain rather than encourage these expensive propensities. ”

“ The law presumes it a lost grant, than that such an a lost grant, than thta such an anomaly should take place. It is because the man in possession enjoys great advantages, and the man out of possession sustains great losses, that the law so readily concludes the title to be according to the enjoyment. ”

“ Mistake of law alone is no ground of relief. 12 Peters, 32.
That they must have known the localities. Mass. Ev. 22; R. I. Ev. 52, and id. seq. 55, 57.
3. That in the absence of fraud and misrepresentation of the commissioners of Massachusetts, mistake of facts by the commissioners of Rhode Island would be no ground of relief against the agreements; and that there is no proof of such fraud or misrepresentation. ”

“ The general boundary, as named in the charter, was run and established by the colony or colonies interested; and where there was no dispute no further action was required. The controversy in regard to their common boundary, between Plymouth and Massachusetts, Which seems to have existed as early as 1638, was finally adjusted by running the line in 1664. This line was commenced at the place called the angle tree, which is said to be about two miles south of the Woodward and Saffrey station. ”

“ That if the words may bear two senses, that which is most beneficial to the grantee, the settler, and colonist will be taken, rather than that most beneficial to the monopolist grantor.
3. That the words themselves more obviously and naturally import the sense claimed by the remonstrance. ”