[The State of Massachusetts ads. The State of Rhode Island.]

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 what she has done.

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 state.

A motion 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 in this case.

The motion on the part of the state of Massachusetts, to withdraw the appearance heretofore entered, seems to be founded on what is supposed to have fallen from the Court at the present term, 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 the Court upon that ground. It was only intended to say, that the appearance of the state, superseded the necessity of considering the question whether any and what course would have been adopted by the Court, if the state had not appeared. We certainly did not mean to be understood, that the state had concluded herself on the ground that she had voluntarily appeared; or that if she had not, we could not have assumed jurisdiction of the case. But being satisfied that we had jurisdiction of the subject matter of the bill, so far at 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 decisions in this Court, does not leave us at liberty to consider this an open question.

In the case 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

[The State of Massachusetts ads. The State of Rhode Island.] foreign state. This amendment did not affect suits by a state against another state; and the mode of proceeding in such suits, was not at all affected 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 in the case referred to, of New Jersey v. New York; and the practice found to have been established by former decisions of the Court, as far as it went, was adopted. And the Court went a step farther, and declared what would be the course of proceeding in a stage of the cause, beyond which former decisions had not found it necessary to prescribe such

course.

The Court, in the case of New Jersey v. New York, commence the opinion by saying: "This is a bill filed for the purpose of ascertaining and settling the boundary between the two states." And this is precisely the question presented in the bill now before us. And it is added, that congress has passed no act for the special purpose of prescribing the mode 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 legislation for that purpose. And the Court observed, that at a very early period of our judicial history, suits were instituted in this Court, against states;. and the questions concerning its jurisdiction were necessarily considered.

An examination of the acts of congress, in relation to process and proceedings, and the power of the Court to make and establish all necessary rules for conducting business in the courts, is gone into, and considered sufficient to authorize process and 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 law or in equity shall issue against a state, it shall be served on the governor, or chief executive magistrate, and the attorney general of the state. The Court, in that case, declined issuing a distringas, to compel the appearance of the state; and ordered, as a general rule, that if the defendant, on service of the subpœna, 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.

[The State of Massachusetts v. The State of Rhode Island.] 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 was 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 be 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 bill of the complainant, the Court will proceed 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; but the complainant, or plaintiff, will be allowed to proceed ex parte.

If, upon this view of the case, the counsel for the state of 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 testimony has been taken, we shall allow the parties to withdraw or amend the pleadings; under such order as the Court shall hereafter make.

Mr. Justice BALDWIN dissented

Mr. Justice STORY did not sit in this case.

On consideration of the motion made by Mr. Webster, on Saturday, the 24th of February, A. D. 1838, for leave to withdraw the VOL. XII.-5 D

[The State of Massachusetts v. The State of Rhode Island.] 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 case, and of the arguments of counsel thereupon had, as well 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. But 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.

MEMORANDUM.

The Reporter has omitted to state, that in the following cases, Mr. Justice Baldwin

APPENDIX,

Containing the Arguments of the Counsel for the Plaintiff in Error; and of Mr. Geyer, Counsel for the Defendant in Error; in the Case of Daniel F. Strother, Plaintiff in Error v. John B. C. Lucas.

Argument of Messrs. Lawless and Benton, for the plaintiff in error:

1. That the two forty arpent lots in question, constituted a property in the grantees thereof, and their heirs and assigns, which was protected and guarantied by the treaty of St. Ildefonso, bétween Spain and France, and the treaty of cession of the 30th of April, 1803, between France and the United States.

In support of this proposition, the terms and spirit of those two treaties were insisted on; and the nature of the original grant and survey of those two lots by the Spanish and French governments respectively. The Livre Terrein, in the Spanish archives, at St. Louis, No. 2, pages 11 and 12, and the first and concluding page 68, were relied on to demonstrate, that the survey was made by a duly authorized offi cer, and in pursuance of a grant made by competent authority.

To show that, under the Spanish government of Upper Louisiana, those lots were considered and treated as property; the deeds of conveyance made of them by their respective grantees, bearing date 23d January, 1773, and 6th April, 1781, in presence of the lieutenant governors, Don Pedro Piernas and Don Franciso Cruzat, whose official character, and whose signatures were specifically proved, were relied on; as also the possession, going with those deeds, in Louis Chancellier, the vendee.

Besides these deeds, the inventory, sale and partition of the property, real and personal, of Louis Chancellier, were insisted on as conclusive proof, not only of a recognition of the right of property in these tracts, by the authorities in Upper Louisiana, but also by the supreme power in the province of Louisiana; namely, the governor general Don Esteban Miro, whose decree, bearing date the 25th February, 1787, is in evidence in the cause, and, in obedience to which, the final decree of partition, bearing date the 13th day of September, 1787, was made, which adjudicates the property in question to Marie Louise, the widow of Chancellier, as lawful vendee thereof, at the sale of her husband's real and personal estate, on the 12th June, 1785.

The possession of Marie Louise, the widow of Louis Chancellier, going with said sale and partition, (and previously recognised as being in her at the death of her husband, by the very terms of the inventory, sale and partition,) was also referred to by plaintiff's counsel in demonstration of the position, that, at that date, the lots were recognised by the law of the land as "property.'

2. That Marie Louise Chancellier, so vested with the right of property and the possession of those two forty arpents lots, continued to be vested with said right of property, and also with the civil possession thereof, at the date of the treaty of St. Ildefonso, and of the 30th April, 1803, respectively.

That no conveyance or sale was made by her of her property in those lots, anterior to the 30th April, 1803, and that by no operation of law was that property or civil possession divested out of her.

The counsel for the plaintiff cited various authorities from the civil and Spanish law, to show t at the "jus in re," became vested in Marie Louise Chancellier, by the possession and title of her husband, and particularly by the adjudication to her of those lots, in 1787; and remained in her at the date of the treaty of cession, and that the civil possession, as understood in Spanish jurisprudence, at that date, was

also vested in her.

The possession of St. Cyr, as far as such possession was shown to have existed