Rhode Island and Providence Plantations v. Massachusetts (39 U.S. 210)

THIS case was before the Court at January term, 1838. The state of Rhode Island, in 1832, had filed a bill against the state of Massachusetts, for the settlement of the boundary between the two states; to which bill Mr. Webster, at January term, 1834, appeared for the defendant; and on his motion, the cause was continued until the following term, when a plea and answer were filed by him, as the counsel for Massachusetts. Before January term, 1837, the state of Rhode Island filed a replication to the plea and answer of the defendant; at the same time giving notice of a motion to withdraw the same.

At January term, 1838, the counsel for Massachusetts moved to dismiss the bill filed by the state of Rhode Island, on the ground that the Court had no jurisdiction of the cause.

This motion was argued by Mr. Austin, the attorney general of Massachusetts, and by Mr. Webster, for Massachusetts; and by Mr. Hazard and Mr. Southard, for the state of Rhode Island: and was overruled. 12 Peters, 657.

Afterwards, at the same term, Mr. Webster, on behalf of the state of Massachusetts, as her attorney and counsel in Court, moved for leave to withdraw the plea filed in the case on the part of Massachusetts; and also the appearance which had been entered for the state. Mr. Hazard moved for leave to withdraw the general replication to the plea of the defendant in bar, and to amend the original bill.

The Court, after argument, ordered, that if the counsel on behalf of Massachusetts shall elect to withdraw the appearance before entered, that leave be given for the same; and the state of Rhode Island may proceed ex parte. But, if the appearance be not withdrawn, that then, as no testimony has been taken, the parties be allowed to withdraw or amend the pleadings under such order as the Court may hereafter make. 12 Peters, 756.

At January term, 1839, Mr. Southard, on behalf of the state of Rhode Island, stated, that the bill filed by the state had been amended; and moved that a rule be granted on the state of Massachusetts, to answer in a short time, so that the cause might be disposed of during the term.

The Court, the bill of the state of Rhode Island having been amended the second day of the term, ordered that the state of Massachusetts should be allowed until the first Monday in August 1839, to elect whether the state will withdraw its appearance, pursuant to the leave granted at January term, 1838; and if withdrawn within that time, the state of Rhode Island should be, thereupon, at liberty to proceed ex parte. If the appearance of the state of Massachusetts should not be withdrawn before the first Monday in August 1839, the state to answer the amended bill before the second day of January, 1840. 13 Peters, 23.

The amendments made by the complainants in the bill were, chiefly, the insertion, by reference to reports of the commissioners of the colony of Massachusetts to the government of Massachusetts, while a colony, on the 13th of April, 1750, and on the 21st of February, 1792, to the legislature of the state of Massachusetts, appointed by an act of the commonwealth of Massachusetts, passed on the 8th day of March, 1791, 'for ascertaining the boundary line between this commonwealth and the state of Rhode Island.'

The report of April 13th, 1750, states, that the commissioners on the part of the colony of Massachusetts met the gentlemen appointed on behalf of the colony of Rhode Island, on the 10th of April, 1750, 'and spent part of that and the next succeeding day in debating on said affair with those gentlemen;' and produced the agreement of 1710, 1711. 'Sundry plans, &c. were offered to run and review with them the said line, but they refused to go, or join us herein, but insisted on our going with them to a certain place on Charles river, in Wrentham, from which they a few months since measured three miles south, and then extended a west line with the variation west, to the west bounds of that colony, as they claim as the west bounds of that colony, as they informed us; which bounds they claim as their north bounds; and is about four or five miles northward from Woodward and Saffrey's station.' The report also states, 'that on the return of the commissioners to the place of meeting, the Rhode Island commissioners not having accompanied the Massachusetts commissioners to the station, they found them at the original place of meeting, who desired the commissioners would adjourn to a second meeting, which was assented to, and the meeting fixed at the same place, in October following, in case their respective governments consented thereto.'

The second report was made by 'The commissioners on the part of Massachusetts, to the legislature of that state, Feb. 21, 1792.'

It is stated to be a report 'that the commissioners appointed by an act of the legislature of the commonwealth of Massachusetts, passed on the 8th day of March, 1791, for ascertaining the boundary line between this commonwealth and the state of Rhode Island, have carefully attended the services assigned them, and take leave to report their doings.'

The report states, 'that on the 15th of August, 1791, we, by agreement, met the commissioners from the state of Rhode Island, at Wrentham, in this commonwealth, and after exchanging the powers under which we severally acted, we proceeded to discuss the subject that gave rise to our appointments, in the course of which, it appeared that the state of Rhode Island, from their construction of this expression, 'three miles south of Charles river, or of any and every part thereof,' in the ancient charter of the colony of Massachusetts, and as the south bounds of the same, claim near three miles north upon this commonwealth, than the present line of jurisdiction between the two governments; the commissioners of the commonwealth, from the circumstance that the branch, now called Charles river, and from which the claim of the state of Rhode Island would run three miles south to ascertain the south boundary of the commonwealth, could not have been known by the name of Charles at the time of granting the Massachusetts charter in 1621; and from this line being ascertained and fixed at a different place by commissioners chosen by the colonies of Massachusetts and New Plymouth in 1667, at a time when the intentions of the grantor and grantees must have been known, are convinced that the claim of the state of Rhode Island is ill founded; but to complete, if possible, the intentions of our appointments, and that the disputes between the governments might be amicably adjusted, we united with the commissioners of the state of Rhode Island, in the agreement as in number one.

'In examining and comparing the charter of the two governments, granted by the successive kings of England, under which both claim, it appears that the first charter to the colony of Massachusetts was granted by King James the First, in 1621, and resigned a certain territory to that colony, bounded by an east and west line, which was to be three miles south of Charles river, or of any and every part thereof; the same expression is also used for limiting a part of the bounds of the old colony of Plymouth, and was probably copied from their charter into the Massachusetts, to prevent an interference of claims; the same line is adopted in the charter from King Charles the Second, to the colony of Rhode Island, granted in 1663, and is their northern boundary. The erection of a third government, referring to the same bounds, seems to have rendered it necessary for Plymouth and Massachusetts to ascertain their bounds; accordingly those two governments, in 1664, appointed commissioners to survey the most southern branch of the Charles river, and to lay off from thence three miles due south as their boundary line by charter; this was accordingly done, and they fixed upon a large tree, then known and since noted by the name of the Angle tree, as the north line of Plymouth, and the south line of Massachusetts. The knowledge and name of the place is preserved, and the commonwealth, in order to perpetuate it, have erected in the place of the tree, the remains of which are now to be seen, an handsome stone monument, which bears the name of Angle tree, and is explained by suitable inscriptions on the different feces of it. This the commissioners apprehend to have been the true and original boundary, and is three miles south of the most southerly waters of Charles river. It does not appear that the colony of Rhode Island ever expressed any dissatisfaction respecting their northern boundary until 1716, or thereabouts, which finally ended in the appointment of commissioners by both governments in 1718, who fixed a new station about two miles north of the Angle tree, and which was called after the surveyors, 'Woodward and Saffrey's Station.' This place is well known, although no records of it have been preserved, or the proceedings of the commissioners ratified by either government; yet the line drawn from it has been practised upon as the line of jurisdiction between the governments from that to the present time. This commonwealth then lost two miles in width along the northern line of Rhode Island, and seems to have acquiesced in the agreement upon principles of generosity. The ancient charter of New Plymouth and Rhode Island were irregularly bounded on one another; the former, as was supposed, by the shores of the Narraganset bay, the latter by three miles east of those shores; this interference of boundary, however, appears not to have given any discontent, as the date of the charter of New Plymouth was prior to that of Rhode Island; and the peaceful jurisdiction to the shores of Narraganset bay, was enjoyed not only by the old colony of Plymouth, but by Massachusetts, (after these two colonies were united by the charter of 1691,) down to the year 1730, at which time the colony of Rhode Island passed an act claiming the jurisdiction of the territory on their eastern boundary, granted to them, by charter, in this act and in the subsequent dispute and determination of the subject, not a claim, nor the intimation of one, but that their northern boundary was satisfactory, as established in 1718. In 1740, the King of Great Britain, who was then the sovereign of these states, appointed commissioners to hear and determine the dispute then existing between the governments, who, after hearing the parties, came to the determination as in number two, by which the extent of Rhode Island charter was allowed, and the jurisdiction of Massachusetts cut off from the shores of Narraganset bay. This judgment, unexpected by either party, was disapproved of by both, and they accordingly appealed to the king in council, where, however, it was ratified in 1746. As soon as this information was received by the colony of Rhode Island, they proceeded to appoint their commissioners, and assigned the time of meeting for them to begin running the lines that had thus been determined, and they gave information thereof to the governor of this their province; but the legislature not being convened until some time after the period affixed for the Rhode Island commissioners to begin the survey, they thought it unnecessary for them to join in the commission. These lines we perambulated in company with the commissioners of the state of Rhode Island, and excepting one or two stations between Providence and Bristol, which were well ascertained, we found that they had encroached upon this common wealth from one-quarter to three-quarters of a mile in width. We were attended by suitable persons, approved by both parties, for making the necessary observations and surveys. Here, probably, all further dispute relative to boundary lines with the colony of Rhode Island would have forever ended, had it not have been for the rage of political parties at this time within the colony; one of which, to effect a decided majority, was extremely anxious for an extension of northern jurisdiction. Influenced by these motives, and perhaps in some measure by their late success, they, in 1740, brought forward a new claim for extending their northern boundary beyond the line established in 1718; and to support that claim, they appointed commissioners in 1750, to examine what is now called Charles river, and from the most southern part of the same, to survey off three miles as the boundary of Massachusetts, agreeably to their charter. A plan of this survey was laid before us, and copy of it herewith presented. We have inserted our own survey of what we conceive to be the most southern part of Charles river, as intended by the charter, above Whiting's pond, and the position of the Angle tree. It may not be unnecessary to observe, that at the southern head of what we call Charles river, is a place known by a large chesnut tree; thence the stream descends to Whiting's pond, where it forms a considerable lake, and afterwards resuming its proper shape, (and now known by the name of Mill river or brooke,) pursues its course in a northerly direction till it joins that stream which is known by the name of Charles river, the confluence of the two streams six miles more northerly than the chesnut tree at the southern head of Charles; after perambulating the bounds now practised upon, and ascertaining their deviations from the stations to which they ought to have been fixed, and learining the principles upon which Rhode Island supports her claims, and the extent of them, we adjourned to the 5th day of December last, then to meet at Providence, in the state of Rhode Island; at which time and place we met with the commissioners from Rhode Island, and after fully discussing the several claims, and endeavouring to conciliate the difference between the two states, agreeably to the powers of our commission, we were convinced that no agreement can be made at present with them, unless we yield a valuable territory, to which they have no claim, and which we hold not only by repeated charters, but by the agreement of the state of Rhode Island in 1718; and so far from its appearing that encroachments have been made by this commonwealth on that state, that the contrary is notoriously the fact.'

The counsel of the state of Massachusetts, after January term, 1839, and in conformity with the order and leave of the Court then given, filed a plea and answer to the amended bill of the state of Rhode Island. The plea and answer were the same, in all important particulars, as that originally filed at January term, 1834. The plea and answer conclude,-'And the defendant saith that there is no other matter or thing in the complainant's said bill of complaint contained, material for this defendant to make answer unto, and to which said defendant has not already pleaded and answered as aforesaid; all which matters and things pleaded and answered, as aforesaid, the defendant is ready to verify and maintain as the Court shall order. Wherefore said defendant prays to be hence dismissed, with costs.'

All the matters in the bill, material in this case, and in the plea and answer, with the exception of the amendments given on pages 213-215, ante, are stated fully in the report of the case in 12 Peters, 657; and in the opinion of the Court delivered at this term, by Mr. Chief Justice TANEY.