37 U.S. 657 (1838), State Of Rhode Island v. Com. Of Massachusetts

• Citation: 37 U.S. 657, 9 L.Ed. 1233
• Party Name: THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, COMPLAINANTS v. THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT.
• Case Date: February 21, 1838
• Court: U.S. Supreme Court

Page 657

37 U.S. 657 (1838)

9 L.Ed. 1233

THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, COMPLAINANTS

v.

THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT.

United States Supreme Court.

February 21, 1838

ON the 16th of March, 1832, the state of Rhode Island, by their solicitor, filed a bill against the state of Massachusetts, for the settlement of the boundary between the two states; and moved for a subpoena to be issued, according to the practice of the Court, in similar cases.

This motion was held under advisement until the following term; and a subpoena was awarded and issued on the 2d of March, 1833.

This subpoena was returned with service on the 30th July, 1833; and on the 18th January, 1834, the appearance of Mr. Webster was entered for the defendants; and, on his motion, the oause was continued with leave to plea, answer, or demur.

On the 12th January, 1835, a plea and answer was filed by Mr. Webster; and on the 22d of February, 1836, by agreement of counsel, it was ordered by the Court, that the complainant file a replication to the answer of the defendant, within six months from the last day of January term, 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 the rule requiring the same was agreed to and entered into by mistake.'

The bill filed by the complainants, set forth the original charter granted on the third day of November, 1621, by King James the First, to the council at Plymonth, 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 the council at Plymouth, of the 19th of March, 1628, to Sir Henry Rosewell and others, of a certain tract of land described in the same, as 'all that part of New England, in America, aforesaid, which lies and extends between a great river there, commonly called Monomack, alias Merrimac, and a certain other river, there called Charles river, being in the bottom of a certain bay, there commonly called Massachusetts, alias Mattachusetts, alias Massatusetts, bay; and, also, all and

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singular those lands and hereditaments, whatsoever, lying within the space of three English miles on the south part of the said Charles river, or of any 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 the said bay, called Massachusetts, alias Mattachusetts, alias Massatusetts bay; and, also, all those lands and hereditaments, whatsoever, which lie and be within the space of three English miles to the northward of the said river, called Monomack, alias Merrimac, or to the northward of any and every part thereof, and all lands and hereditaments, whatsoever, lying within the limits aforesaid, north and south in latitude and breadth, and in length and longitude of and within all the breadth aforesaid, throughout the main lands there, from the Atlantic and western sea and ocean on the east part, to the South sea on the west part.' The letters patent of confirmation and grant of Charles the First, of 4th of March, 1629, to Sir Henry Rosewell and others, for the lands included in the charter of James the First; and the deed of the council at Plymouth, to them by the name of 'The Governor and Company of Mattachusetts 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 forth, and prior to the granting of the letters patent afterwards set forth in the bill to the colony of Rhode Island and Providence Plantations, the tract of land comprised within the limits of the state of Rhode Island and Providence 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 and possessed by purchase and consent of the Indian natives, of certain lands, islands, rivers, harbours and roads, within said tract. That on the 8th of July, 1663, King Charles the Second, by letters patent, granted a charter of incorporation to William Brenton, John Coddington and others, by the name of 'The Governor and Company of the English Colony of Rhode Island and Providence Plantations in New England, in America;' and granted and conferred to the corporation, by the letters patent, 'all that part of

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our dominions in New England, in America, containing the Nahantick and Nanhygansett, alias Narragansett, bay, and countries and parts adjacent, bounded on the west or westerly to the middle or channel of a river there, commonly called and known by the name of Pawcatuck, alias Paweawtuck, river; and so along the said river as the greater or middle stream thereof reacheth or lies up into the north country, northward unto the head thereof; and from thence, by a straight line drawn due north, until 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 bay lieth or extendeth 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 Seacunck 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 bounded on the south by the ocean. And, in particular, the lands belonging to the town of Providence, Pawtuxet, Warwick, Nisquammacock, 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 coast of the tract aforesaid, (Fisher Island only excepted,) together with all firm lands, soils, 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 commodities, jurisdictions, royalties, privileges, franchises, preheminences, and hereditaments, whatsoever, within the said tract, bounds, lands, and islands, aforesaid, or to them, or any of them, belonging or in anywise appertaining.'

The bill proceeds to 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 of

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October, 1691. The description of the territory then granted, so far as the same is important in this case, was the following:

'All that part of New England, in America, lying and extending from the great river commonly called Monomack, alias Merrimack, on the north part, and from three miles northward of the said river to the Atlantic or western sea or ocean on the south part, and all the lands and hereditaments, whatsoever, lying within the limits aforesaid, and extending as far as the outermost points or promontories of land called Cape Cod and Cape Malabar, north and south, and in latitude, breadth, and in length and longitude of and within all the breadth and compass aforesaid, throughout the main land 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, also, all that part and portion of main land, beginning at the entrance of Piscataway harbour, and so to pass up the same into the river of Newichwannock, and through the same into the furthest head thereof, and from thence north-westward, till one hundred and twenty miles be finished, and from Piscataway harbour mouth, aforesaid, north-eastward, along the sea coast to Sagadehock, and from the period of one hundred and twenty miles, aforesaid, to cross over land to the one hundred and twenty miles before reckoned up into the land from Piscataway harbour, through Newichwannock river, and also the north half of the Isles of Shoals, together with the Isles of Capawock and Nantuckett, near Cape Cod aforesaid; and also the lands and hereditaments lying and being in the country or territory commonly called Accada or Nova Scotia; and all those lands and hereditaments lying and extending between the said country or territory of Nova Scotia and the said river of Sagadehock, or any part thereof.'

The bill states, that the province of Massachusetts and the colony of Rhode Island and Providence Plantations, thus established, continued 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 and Massachusetts, to have been 'a line drawn east and west three English miles south of the river...