58 U.S. 478 (1855), State Of Florida v. State Of Georgia

Citation:58 U.S. 478, 15 L.Ed. 181
Case Date:March 06, 1855
Court:United States Supreme Court

Page 478

58 U.S. 478 (1855)

15 L.Ed. 181




United States Supreme Court.

March 06, 1855

        IN 11 How. 293, it is reported that the State of Florida filed a bill in this court, in the exercise of its original jurisdiction, against the State of Georgia to establish a boundary between them.  The State of Georgia answered, and other proceedings were had; but the case was not yet at issue, nor was all the testimony taken upon which the parties proposed to rely.

        At the present term, the attorney-general appeared in court and filed the following information, moving at the same time for leave to intervene on behalf of the United States for the reasons stated in the information.

        Now, on this 15th day of December, 1854, Caleb Cushing, attorney-general of the United States, in his proper person comes here into the court, and for the said United States gives the court to understand and be informed, that a certain bill of complaint

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is pending in said court, by or in behalf of the State of Florida, complainant, against the State of Georgia, defendant, wherein is in controversy a certain portion of the boundary line between said States, and of the lands contiguous thereto.

        That by Mariano D. Papy, attorney-general of the State of Florida, formal notice in the name and behalf of said State has been given to the United States that the matter of said bill is of interest and concern to the said United States.

        That, by inspection of said bill of complaint, it appears that the State of Florida alleges that the portion of boundary line in question should run, commencing at the junction of the Flint and Chattachoochee Rivers, and thence in a straight line to a point at or near a monument commonly called Ellicott's Mound, at the assumed head of the River St. Mary's, which line has been survyed by the surveyors of the United States, and is known as McNeil's line, or howsoever otherwise the same may be described or designated.

        That in said bill of complaint the State of Florida further alleges, that the State of Georgia pretends that, commencing at the junction of the Flint and Chattahoochee Rivers, as aforesaid, the said line should run to a point called Lake Spalding, or a point called Lake Randolph.

        It further appears that the said points of Lake Spalding and Lake Randolph are situated about thirty miles to the south of said Ellicott's Mound, and the effect will be, if the pretence of the State of Georgia be sustained, to transfer to said State of Georgia a tract of land in the shape of a triangle, having a base of some thirty miles, and equal sides each of the length of about one hundred and fifty miles, comprehending upwards of one million two hundred thousand acres of land, which have been considered and treated heretofore as public domain of the United States, and surveyed as such, and much of which has accordingly been sold and patented by the government as of the territory of East Florida acquired from Spain.

        And for the information of the court herein, the attorney-general files, annexed to this motion:----

        1. A certified copy of the (cautionary) traverse line so surveyed in 1825, by said McNeil.

        2. A certified copy of the filed-notes of said traverse line so surveyed.

        3. A certified copy of the map of the (cautionary) true line, plotted from traverse line, by said McNeil.

        4. An official copy of diagram of surveyor-general of the United States for Florida, of surveys of public lands of United States in said State, to September 30, 1853.

        Whereupon, and in consideration of the interest and concern

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of the United States manifestly apparent in said bill of complaint, the said attorney-general of the United States prays the consideration of the court here, and moves the court that he be permitted to appear in said case, and be heard in behalf of the United States, in such time and form as the court shall order.

         This motion was opposed by the States, and was argued by the Attorney-General, in behalf of the United States; by Mr. Badger and Mr. Berrien, on behalf of the State of Georgia, and by Mr. Westcott and Mr. Johnson, on behalf of the State of Florida.

        Upon a question of this character, where 'the file affords no precedent,' the reporter would be pleased if be could report the arguments of counsel in extenso; but want of room compels him to submit to the reader only the following condensed and imperfect sketch of the respective arguments.

        Mr. Cushing began with a general view of the subject of intervention, how it was considered in other countries, Spain, France, and England, and particularly the latter; and how far the English doctrines had been recognized in the United States.  He then passed from the subject of intervention between private persons to cases where the attorney-general interfered, both in England and this county.  He then considered the effect of the act of congress, (1 Stats. at Large, 93,) establishing the office of attorney-general, and making it his duty 'to prosecute and conduct all suits in the supreme court in which the United States shall be concerned;' and contended that, if the government cannot be heard in this case by intervention, it cannot be heard at all.

        His argument under the 15th and 16th heads is given entire.

        15. If there were no precedents to justify the right claimed for the attorney-general, then the court should make one, in deference to the great principle of equity laid down by Lord Cottenham, in Taylor v. Salmon, that it is the duty of the court of chancery 'to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise; and not, from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice, and to enforce rights for which there is no other remedy.'  Taylor v. Salmon, 4 Mylne and Craig, 141.

        This court has repeatedly decided that it has ample power to regulate chancery practice for the new and purely American question, of suits in equity between States; subject, of course, to the control of congress in this respect.  Graysonv. State of

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Virginia, 3 Dal. 320; Huger v. State of South Corolina, 3 Ib. 371; State of New York v. State of Connecticut, 4 Ib. 1; State of New Jersey v. State of New York, 5 Pet. 283; State of Rhode Island v. State of Massachusetts, 12 Pet. 657.

        It can as well provide rules in equity, according to the exigencies of the case, for this first example of the more complex contingency of the collateral interest of the United States in a suit between two States, as it could for the primary and simple contingency of the suit between two States of itself.

        If there be no rule in the files applicable to the case, then it is the very time for the court to exercise the double equity power, (reversing the order in which Bacon describes it,) tam supplendi defectum legis quam subveniendi contra rigorem legis.

        16. It will not answer to say that the United States may appear in the name of the State of Florida.

        § 1. If so, then the condition of the United States, in the premises, is precarious, depending on the discretion of the State of Florida, or of any other State which may stand in like circumstances.

        Self-defence on the part of the government will no longer be its right, but a favor to be granted or withheld by any litigant State.  The essence of a right is, that it may be exercised contentiously, adversely.  Ubi jus ibi remedium.  Right is a thing determinate, fixed, established.  Rego, rectum, regula,--all belong to the same set of ideas.

        § 2. The proposed appearance for the United States is not a volunteer act; for the State of Florida demands of the general government to intervene.  The attorney-general of that State officially notifies the attorney-general of the United States of their interest depending on this question with Georgia.

        But a case might arise in which neither of two or more litigant States desired the presence of the United States.

        The matter before the court is, therefore, of a legal principle to be determined, not of a privilege to be conceded, or of one enjoyed indirectly, under favor of a State.

        § 3. Nor is the possibility of distinct and separate rights, on the part of the United States, a suggestion or supposition merely.

        The United States have granted certain lands, by patent, to individuals, or by statute cession, to Florida, which, according to the claims of Georgia, belonged to her, not to the United States.  Here is responsibility of the latter to its grantees.

        The warrantor comes in because of his responsibility to his grantee, but also in order to see that the case is fully and well tried, with all just defences fully before the court, either technical or of the merits.

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        § 4. The rights of the United States might be prejudiced in a suit between two States through the forms of law.

        The constitution provides (Art. 1, § 3) as follows:----

        '3. New States may be admitted by the congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the congress.'

        By the constitution, also, (Art. 1, § 10,) 'No State shall, without the consent of congress, . . . enter into any agreement or compact with another State.'

        These two clauses of the constitution are in pari materia, and to be construed...

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