The State of Massachusetts ads. The State of Rhode Island

The State of Massachusetts ads. The State of Rhode Island. The state of Massachusetts, after" having appeared'to process issued against her, at the "suit of the State Qf Rhode, Island,, on a bill filed for the settlement of boundary, apd after having filed an answer and plea fp the bill, an. having failed in a . motion to dismiss the bill for want of .jurisdiction; -was, on motion of her counsel, allowed to withdraw her appearance. The eases of The State of New York v. The State' of New Jersey, 5 Peters, 287; ' Grayson v. The Commonwealth of Virginia, 3 Dali. 320 ; 1 Cond. Rep. 141; Chisholm’,s ExqeAtms v. The'State.of Georgia;,2 Dali. 419; 1 Cond. Rep. 6, cited. Ip the case of The" State of Rhode Isipnd v..The State of Massachusetts, ante page'657.,' the Court did not mean to put the jurisdiction of the Supreme Court' on the ground- that jurisdiction Was .assnhidd .in consequeh'ce of the . state of . Massachusetts having appeared in .that cause.. It was only intended to say, that the.appearance o!f the state superseded the necessity of considering the question, • whether any and what course would,have been adopted by the Court, if the state ■ had not appeared. The C.ourt did not mean" to be understood, that'.the state had concluded herself, bn the ground that she had voluntarily appeared'; or, that if Bhe had not appeared, the Court would not,have assumed jurisdiction of the casé. Being satisfied the Court had jurisdiction of the,subject, matter of the bill, so far. at least as réspeeted the question of boundary, all inquiry as to the' mode and manher ini which the state was to be brought into Court, or what would be the course of proceeding, jf the state declined to appear, became entirely unnecessary. The practice seems to be well settled, that in suits against a" state; if the staté shall neglect to appear,.on due service .of process, no coercive measures will be taken to compel appearance, hut the complainant will be allowed to proceed, bx parte. MR. WEBSTER, in behalf of the state of Massachusetts, as her attornéy and counsel iti Court, moved the Court for leave to' Withdraw the,plea'filedvin this case, on the part of the state of-Massachusetts; . and also the appearance which has been entered in this Court, for-.the said state. Mr. Hazard, .¡counsel for the, state of Rhode Island? amoved the Court for leave to withdraw the general replication to the defendant’s plea, in bar arid answer; and to amend the original bill. Mt. Webster, in support of his motion, stated that the governor ' of the state of Massachusetts had given him authority to represent the state; and to havé it determined by the Court, whether it had jurisdiction of t,he case. This authority, is datéd November 30th,;. 1833. It directs him to object to the jurisdiction, and to defend the .cause. The appearance of Massachusetts was voluntary; it was not intended, by the appearance, to admit the Validity of . the' proceeding, or the regularity of the process.. It was not supposed that the state of Massachusetts would -sustain any prejudice hy this, course.' If tne Court ha’d no .jurisdiction' in the matter set out in the bill, the appearance of the state represented by him would-.not gi'Ve- it. It wás thought most respectful to the Court, and. proper in the causé, to file the plea with an. intention to move the-question ojf.jurisdiction, at a. subsequent time. Nothing has been done by the state of Massachusetts since; arid-this Court has determined not to dismiss the' bill of, the complainants. The Court has given an opinion in favour of their jurisdiétion in the-casé. In the course of .the argument, it appeared that ’ certain difficulties, which might haye existed in the casé, had been removed by the appearance and plea;, that'jurisdiction was affirmed by the appearance and plea. It was said, if the question was on the hill-only the situation" of .' the case might be different;' There is a great deal;~fforii which it may be'iipferred that if Mas-' sachusettS/had. stood out, contumaciously; there would1 be no authority in'the .Court to proceed against her, in this .case.. But- it was not for that state to stand, off, and put the Court to defiance. If, then, the state, by considerations, of respéct; if from a desire to have the question of jurfsdiptib'n-.settled, Massachusetts has appeared; this Court will not permit advantage to be taken of such an -act, induced , by such motives, and for such a purpose. It is the-desire of "the counsel, "for the . state of Massachusetts-to. ■ withdraw the plea and appearance; and tri place the case in the.same situation as it would haye been, had -there not. beeri.process: If a fair Inference may be made, that the sláte' has appeared to the pros cess of the Court, leave is, asked to withdraw the appéarance. It will be determined, hereafter, what course will be.: pursued by the state of Massachusetts. Mr. Hazard, against .the motion made hy Mr. Webster, -cited Knox & Crawford y. Summers & Thomas, 3 Cranch, 421, 496; 1 Cond. R^p. 60%. In that casé, .it was decided, that thé appearance of the payty was a waiver of all the errors: in the proceedings. In that case, one of the parties was out of the jurisdiction of the Court;, and yet having appeared to the process, the right of. the Court to proceed in the( case could not be denied. The authority given by. the governor of the state of Massachusetts, which is of record in this case, is ample to all the purposes of .this suit. It is' an authority to appear and defend the case, and to object to the' jurisdiction. Can the counsel of the state disappear? If they do, they can carry nothing with them. The argumént which was submitted to the Court, on the motion to.dismiss this capse, precludes this. They cannot disappear, and carry the plea with them. The application is heterogeneous in its .character. ■ It is to withdraw the plea; this may be done, and the Court may allow it. It is also to. withdraw the appearance; this is contradictory to the other application, and is made by the state of 'Massachusetts, denying Its being bound to comply with the process, after having appeared tp it.’ Mr. Southard: By the facts of the case, an answer is given to the. motion on the part of the state of Massachusetts. A bill was filed ón behalf of the state of Rhode Island, and. an application was made for process. After advisement, the case being held over for one .year, the process was ordered, and was served on the state-of Massachusetts. 'The state then gave a written authority to counsel tb appear in the cause, to object to the jurisdiction, and to do. whatever was necessary in the suit; and an appearance was entered. After'this, a plea Was put in to the merits, and' not a demurrer to the jurisdiction of the Court. The delay of the state of Rhode Island to proceed in the case, can have no effect on the cause. The question is, whether., after appearance, plea, and answer.; the party can withdraw from the cause, and the cause stand as . if no appearance had been entered. The appearance of the counsel for the state of Massacnusetts was general; and it was followed by an application for a continuance, and for leave to pléad, answer or demur.. At the following term in January, 1835, a plea and answer were filed. At the January, term, 1836, an agreement was made by the counsel in the cause, that the complainant should fila a replication within six months. This was done; and in 1837 the application of one of the counsel for the complainant for. a continuance was opposed, and was argued by the counsel for th€ state of Massachusetts. Thus the .whole action of the counsel for the defendant was such as a party fully .before the court would adopt and pursue. There was. no question made as to the jurisdiction. The.appearance was -not followed by a motion to dismiss the bill on that ground.; nor was the general appearance explained by its being followed, by such a motion. After all these proceedings on. behalf óf the state, Of Massachusetts, and after the ¿apse of four years from the appearance of the state hy. the' authority, ¡of. the governor,‘giving full power to counsel to1 act in the ca'use, a motion to' dismiss the -cause, for want of jurisdiction, was made-by the< state, of Ma,ssachu-' setts,'- arid was argued1. ■' This motion having failed, the Court- are now asked to consider the case as if Massachusetts had not appeared; arid as ifi-.procéss had; not. been issued in-the cause. It appears that upon a. statement-of the-pase, no/fürther reply to, the application on the part of the, state, of Massáchusetts is necessary. The-purpose of it is to. avoid', the effect of the .'judgment óf ,-this Court on the motion to dismiss this 'bill, to Withdraw from the cause. -. This could not bé done in a private case; and why,-should it be allowed in a case between states ? The counsel sheriis to found his. motion on something in,the case, by which it Would appear that if .rio appearance■ had been entered;' the Court would not have taken jurisdiction ,of .the cause; .and, desires,' therefore, to puf himself in. the 'situation he woiild' have -been in had he not appeared. Suppose a demurrer to thi§. jurisdiction had been put in, could the party, after the question had been argued, and decided against the demurrer; move to dismiss' the case for want of jurisdiction. This was- never heard of. Mr. Webster, in; reply The authority to the counsel for the state of Massachusetts to ap-' pear in the cause, is no part óf the record; and is no part of the casé, íhe object of-the- motion is, .that if anything has been done-by Massachusetts to her prejudice, she may havé liberty to -withdraw it She has.done it hy mistake-^ — process having been issued against her-she .came in'and appeared-to .it. ■ Is it considered that this Court-has a right to issue process against, ¿.state; "and that-it is the duty of the státe to'obey, the process'? ,If this iá s,Oj,there 'is-am end'of the motion, ■ But if tlie right'of .the Court to issue process is, not-determined, and yet the process has been- issued, and the state- of Massachusetts has come in, ánd has appeared'; although there was' no right to issue the process; the state should sustain no prejudice front having appeared for the purpose of having the' question of jurisdiction settled. It is yet -to be determined, whether the Court can issue process against a state; and, Massachusetts is not to be entrapped by anything done by her, before this .shall be decided. If the state of Massachusetts, from respect to the Court has appeared, she asks, the Court to say that-there is a right to issue process against a state, and she will obey ; but'if wrongfully’issued, she asks that she shall not be affected by whatshe. has/d’oné. [MAJORITY — Mr. Justice Thompson] Mr. Justice Thompson delivered the opinion of.-the Court: .A motion has been-made on the part of the state of Massachusetts,for leave-to withdraw the-plea/filed on'the part of' that state; and also to withdraw the appearance heretofore entered for 'the státe. A ñíotion has also -been made on' the .part of Rhode, Island; for.' leave .to withdraw the-general replication to the defendant’s answer and plea, in bar; and-, to amend the original bill filed .inthis'ca’sel • The motion, on the part of the state of Massachusetts, "to withdraw the appearance heretofore entered, seems to. be founded oh what'is supposed to have fallen from the Court at the preserit-ternq-in the opinion delivered upon the question of jurisdiction In-this.case. -It is thought that opinion is open to the inference that jurisdiction is. assumed, in consequence of the defendant’s having appeared in the. cause. . We did not mean to put the: jurisdiction of. thé Court upon that ground. It was oply intended to say, that the appearance, of-the state,, superseded the necessity of considering the question whether ahy and what course would have been adopted. by the. Court, if the state had not. appeared. ,We .certainly did- ndt’meaft. to be under.,stood, that the state ha<Jr concluded herself on • the' ground that' she had voluntarily appeared; of that if she had not, we' could not have assumed jurisdiction of the cáse, But. being satisfied that we had jurisdiction of the’subject matter of the bill,'so far a] least as respected the question of. boundary, all inquiry as to the mode and manner in which the state was to be brought ‘into Court, or-what-' would be the course of-proceeding if the state declined to appear, became entirely unnecessary. But as the question is now brought directly before us, it becomes necessary.to dispose-of it,.' We think,'however, that 'the course of decisionsbn this Court, does hot leave .us at liberty to consider this an open question. In the.casé,of the State of New Jersey v. The State of New York, 5 Peters, 287, this question Was very fully examined by the Court; and the course, of practice considered, as settled by the former decisions of the Court, both before and after the amendment of the constitution; which declared, that the judicial power of the United States shall not extend to any suit in-, law-or equity, commenced or prosecuted against a state by citizens, of another state, or subjects of any foreign state. This amendment did. riot affect suits by a state against another state; and the mode pf proceeding in such-suits; was not at all affe'oted'by that amendment. . •We do not propose, to enter into-this question, any farther than briefly to notice what the Court'has already decided upon the practice in this respect. These cases were reviewed' ip the ca'se'refefred' to, pf New Jersey v. New York; and the practice found to' have been established by former'decisions of the' Court, as far as-it wént, was adopted. And the Court wept a step farther, arid declared what would be the course oí proceeding in a stage of the cause, beyond which' former decisiohs had not found it necessary to prescribe such course. The"Court, in the case'óf New Jersey v. New York, commence the opinion by saying: “This is á bill filed for the purpose of ascertaining and settling the boundary between the two states.”. And this is precisely the quéstíon presented in the. bill now .before us. And it is added, that congress has passed nó act for the special purpose of prescribing the iftode of proceeding in suits instituted against a state. 'The precise question was, therefore, presented, whether, the existing- legislation of congress was sufficient to enable-.the Court to proceed in such a case; without any special .iégislation.for that'purpose,- ' And the Court observed, .that at a very- early period of orir judicial history, suits were. instituted; in this Court, against states;, arid the questions concerning- its jurisdiction-were necessarily considered. ... An examination of the acts pf congress, in relation to process: and proceedings, and the, [>ower of the Court to,make and establish all neeessary rules for conducting.business in', the courts, is gone into, and considered suíficiérit to authorize processed proceedings against .a state; and the Court adopted the practice prescribed'in the case of Grayson v. The Commonwealth of Virginia, 3 Dall. 320, that when process in common law1 or in equity shall issue against a state,-it sháll be served on the governor, or chief éxecutive magistrate, arid the attorney general of the' state. The Court, in that' case, declined issuing a distringas, to cornpel the appearance of the state;, and ordered, as a general rule, that if the defendant, on service of the subpoena, shall not appear at the return day therein, the complainant Shall be at liberty to proceed ex parte. And the course of practice has since been to proceed ex parte, if the state does not appear. And accordingly, in several 'cases, on the return 'of-the. process, orders have been entered; that .unless the state, appear by, a given day, judgment by default will be entered. And further .proceedings have been had ,in the causes. In the case of Chisholm’s Executors v. The State of Georgia, 2 Dall. 419, judgment-by default whs entered, and. a writ of inquiry awarded in February term, 1794. But the amendment of the constitution prevented its being executed. And in other cases, commissions have been taken out for the examination of witnesses. . By such proceedings, therefore, showing progressive stages in cases towards a final hearing, and. in accordance with this course of practice; the Court, in the case, of'New Jersey v. New York, adopted the course.'prescribed by the general order made in the case of Grayson v. The Commonwealth of Virginia; and entered a rule, that the subpoena having been- returned, executed sixty days before the return day thereof, and the, defendant having failed to appear-, it is decreed and ordered, that the complainant fie at liberty- to proceed ex.parte; and that, unless the defendant, on -being served with a copy of this decree, shall appear and answer the hill of the complainant, the Court will procéed to hear the cause on the part of the complainant, and decree on the matter of the said bill. So that the practice seems to> be well settled,- that, in suits against, a state, if the state shall refuse or neglect to appear, upon-due service of process, no coercive measures will be taken to compel appearance; bút the complainant, or plaintiff, will be allowed to proceed ■ex parte. . If, upon this view of the case, the counsel for the' statepf'Massachusetts shall elect to withdraw the appearance, heretofore entered, leave will accordingly be given;' and the state of Rhode Island'may proceed ex parte.. And if the appearance is not withdrawn, as no testimdny has been taken, we shall allow the parties to withdraw of amend the pleadings; under such order as the Court shall hereafter ipa^e. Mr/ Justice Baldwin dissented Mr; Justice Story did not sit in this ease. ■ On consideration of the motion made by Mr. "W ebster, on Saturday, the 24th of February, A.' D. 1838, for/ leave to withdraw the plea filed on the part of the defendant, and the appearance heretofore entered for the defendant; and also of the-motion made by Mr; Hazard, on the same day of the. present term, for leave to withdraw the general replication to the defendant’s answer and plea in bar, and'to Amend the original bill filed in this cáse,' and of the arguments of counsel thereupon had", as wejl for the. complainant as for the defendant; it is now here-considered and ordered by the Court; that if the counsel for the state'of Massachusetts shall elect to withdraw the Appearance heretofore entered, that leave be and the. same'is accordingly hereby given; and that the-state of Rhode Island may proceed ex parte. Rut: that, 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 shall hereafter make in the premises.