most enduring nature, has been lost through | first place there are no third persons connected the agency of time. with jurisdiction, and in the next place, jurisdiction amplifies and enlarges itself without expenditures of any kind, and the policy of the law is to restrain rather than encourage these expensive propensities. It must therefore be admitted that the application of the benign influences of time to such a subject as jurisdiction would be rather gawky, old-maidish, and ungraceful. To our minds it seems a clear proposition, that if time is to exert any influence over the rights of the parties in this case, that influence must be based upon principles never as yet promulgated in the code of any municipal or national law which has come to our knowledge. The artificial system prevailing in the courts of common law and equity, in England and in this country, has been more largely inflated, But suppose we bring this subject of jurisand made deeper and broader encroachments diction within the range of all the principles apupon the domain of practical justice and com- plicable to property; has time any ordinance, mon sense than any previous system within the any form of action, that can in the slightest derange of our learning. Yet that system, ex-gree affect the rights of Rhode Island? We tended as it has been by ambitious book law-say with the most entire confidence that it has yers and book judges, contains no form of action capable of bringing time into hostility with any one of the rights or claims of Rhode Island, in the present case. In the first place, the main reason why time is so prolific of presumptions against the party out of possession is founded upon the ceaseless and untiring activity of avarice. The love of money is the basis of all prescription, presump. tions of grant, and statutes of limitations. It is against human experience that any man should allow another to receive the rents and income, and other benefits of his property, for a series of years, claiming it as his own, and remain silent under such encroachment. The law presumes it more probable that there has existed a lost grant, than that such an anomaly should take place. It is because the man in posses sion enjoys great advantages, and the man out of possession sustains great losses, that the law so readily concludes the title to be according to the enjoyment. This reason, in many cases, if not in all, would apply but awkwardly to jurisdiction-a duty, and oftentimes an onerous, sometimes a dangerous, duty, which, instead of courting, we gladly escape from-and not, like property, an enjoyment, a benefitindeed, the greatest of worldly blessings in the opinion of the mass of mankind. To forego the performance of a duty does not impregnate time quite so quick with a presumption of the absence of all rights, as to forego the enjoy ment, it may be, of many thousands of dollars of income, claimed by another, enjoyed by another, with a denial of our right by another. 625*] *Then, again, time quiets long possessions of property upon a principle of policy. Property passes from parent to child, it is transmitted by will, transferred by deeds and other instruments, and in the course of forty or fifty years it acknowledges, it may be, as many distinct owners, many, if not the most, of whom took it for granted that the peaceable and undisturbed possessor was the legitimate and undoubted owner. The law encourages this belief, for otherwise no improvements would be made. Heirs, devisees, and purchasers would be unwilling to hazard large expenditures, if a flaw in a deed, or even the entire loss of the paper title, could not be cured by the salutatory and benign influences of a long and undisputed possession. But jurisdiction is a chaster and less prolific character. She has no heirs, or devisees, and but here and there a purchaser. Third persons will not be discouraged from making improvements by large expenditures of money, because in the not. There are but three modes known to the courts of law or equity in which time exercises her influences upon permanent property-1. By statutes of limitations; 2. By prescription; and 3. By presumptions of grants. It is not pretended that statutes of limitations can apply to the case of two States. It would be equally absurd to invoke the common law doctrine of prescription, as administered at law or in equity, for to this day, in England and in this country, prescription is overthrown if the person out of possession can show that the possession commenced at any time subsequent to the 1st of Richard I. (Best on Presumptions, 47 Law Library, 75; Taylor v. Cooke, 8 Price, 650; 2 Bl. Com.. 31; Fisher v. Greaves, 3 Eagle & Younge, Tithe, C., 1100.) The presumption of prescriptive rights, derived from enjoyment, is instantly put an end to, where the right is shown to have originated within the period of legal memory," that is 1 Rich. I. (1189). Massachusetts was not settled until 1620, and the charter under which she claims was granted in 1628. In the two first modes in which time operates upon title, she acts alone, unaided by [*626 any other proof, direct or circumstantial. If the period required by the statute of limitations has transpired, or if the possession has been as far back as memory extends, the law presumes that it was coeval with Richard I., and in both cases time alone constitutes a legal title. But with the exception of the case of a mortgage, and one or two other analogous cases, time alone, unaided by circumstances, is never sufficient for the third form of its action, by way of presuming a grant. In Mayor of Kingston v. Horner (Cowper, 102). Lord Mansfield says: "A jury is concluded by the statute of limitations. So in the case of prescription, if it be time out of mind, a jury is bound. Any evidence showing a time when the claim did not exist is an answer to prescription." (p. 109.) "But length of time, as evidence, may be left to a jury to be credited or not, according to circumstances." "There is no positive rule which says that one hundred and fifty years, or any other length of time within memory, is a sufficient ground to presume a charter." The more modern authorities are all collected in Best, and the well settled doctrine in England and in this country now is, that the presumption of a grant is a case of circumstan tial evidence, of which time constitutes but a single link. A jury must believe that a grant was actually made. (6 Cowen, 706; 3 Johns. R., 109, 269; 1 Wash. C. C. Rep., 70; 2 Wend., 13-15; 3 Conn. R., 431; 11 East, 279; 5 Barn. & Ald., 228: 3 Ibid., 150.) This court, in Ricard v. Williams (7 Wheat., 59), say: "Presumptions of grant can never arise where all the circumstances are consistent with the non-existence of a grant. A fortiori, they cannot arise when the claim is of such a nature as is at variance with the existence of a grant." The facts of this case conclusively show that no presumption of a grant (other than the charters and the contracts of the parties, upon the construction of which the case depends) can for a moment be indulged in; because 1. From 1628 down to 1775 there was no power competent to make a grant except the mother country. Massachusetts and Rhode Island were colonies, and it is not denied that up to 1775 they were incompetent to convey territory or jurisdiction. pending dispute. Frequent meetings have been had. All their conversations, arguments, and claims have been in writing, and reports of those conversations made to the respective Legislatures of the two States. From the first to the last, no pretense has been made of any hiatus in the records in England, or in either of the two States. Not a syllable has been lisped of any other title than the charters of 1628 and 1691. From first to last, the claim of Massachusetts has been, and now is, that the territory was hers by charter, that the contracts of 1710 and 1718 conceded the territory as the chartered right of Massachusetts. It is admitted, it is made the sole foundation of the opposite argument, that, as long ago as 1642, Massachusetts surveyed this territory. and took possession up to the Woodward and Saffrey line, by virtue of the charter; that she has occupied and claimed it from that time down to the present by virtue of the charter. All this is irreconcilable with any other title. Besides, during the period from 1748 down to 1825, neither party, in their various and frequent discussions, pretended that any other question existed between them than what was the proper construction of the charter. Both *admitted that the whole title rested [*628 2. No other grant from the crown can be presumed (than the charters of 1628, 1691), enlarging the limits of Massachusetts, because all such grants are enrolled, and by the well set-upon that instrument. Massachusetts contendtled law of England an enrollment cannot be presumed without proof of a spoliation or hiatus in the record. In 3 Barn. & Ald., 150, Abbott, Ch. J., says: No instance can be 627*] found where the court have said that an enrollment has been presumed." (See, also, Best on Presumptions, 149.) ed that Jack's Pasture Brook was the main stream in 1710 and 1718, though it had since become a tributary, and Rhode Island contended that it always had been a tributary. As late as 1791, the Massachusetts commissioners, in their report, recommended to their Legislature that that question should be referred to the But such enlarged grant must not only have arbitrators. In 1750 Rhode Island run the line been recorded in England, but in Massachusetts three miles from Charles River, erected perand in Rhode Island, and no such grant would manent boundaries upon it, gave to Massachu have been made without the most formal notice setts a map of that line, with notice that she to both the parties to be affected. No con- claimed to it. Here, then, Massachusetts was firmation of the contracts of 1710 and 1718 can put upon her defense as early as 1750. Her be presumed, for the same reasons. Such con-line, four miles south of ours, was claimed by firmation must have been upon notice, and would have appeared upon the records of the mother country and both the colonies in terested. III. Any additional grant from the mother country, or from Rhode Island, after 1775, is not only inconsistent with the circumstances of the case, but at war with its whole history from 1710 to the present time. Because any grant prior to 1775, or any confirmation of the contracts of 1710 and 1718, would have been enrolled in the mother country, and upon the records of both Massachusetts and Rhode Island, and any grant by Rhode Island since 1775, or confirmation of the contracts of 1710 and 1718, must have been recorded in Massa chusetts and Rhode Island. Some human hands must have touched these grants or confirmations, and some human eyes must have seen them, and when lost from all three of their beds of repose, a hiatus, or lost stick, must have appeared upon the record books. How is the fact? The mistake in the admissions of the Rhode Island commissioners (we omit to call it an imposition) was not discov ered until 1748. From that time down to 1825, scarcely a year has elapsed during which com missioners from both the States have not been appointed, or continued under former appointments, for the purpose of settling this long her as the true charter line. Ours was claimed by us as the true charter line. From that day to this our monuments have stood upon that line, and from that day to this our commissioners have claimed to it. It has been a continual claim. In 1750 Massachusetts took the depositions of witnesses, in order to preserve the evidence of her construction of the charter. All her evidence in favor of that construction is in the case. She knew, then, that at some day or other she must either concede our right by negotiation, or surrender it under legal compulsion. All the moral reasons, therefore. in favor of long possession have no application here. She has lost none of her evidence. The depositions of all her witnesses taken in 1750 are now in the case. None of the legal reasons apply. She took possession under her charter, and therefore can set up no other title. The whole has been a subject of constant dispute from 1750 to 1825, and therefore no presumption of a grant from Rhode Island can arise. Indeed, it is in vain to attempt to reason upon such a question. It contradicts all our legal and moral instinct to suppose that any prin ciple ever did or ever can exist, which would sanction or even countenance the idea that such a possession, disputed from the moment it was taken to the time of filing the bill, can have any influence upon the title of either party. The law is yet to be made which gives counte-ter, calling for this boundary; and more than nance to such gross and glaring injustice. Mr. Justice McLEAN delivered the opinion of the court: We approach this case under a due sense of the dignity of the parties, and of the importance of the principles which it involves. one hundred and eighty years, since the date of the Rhode Island charter. In looking at transactions so remote, we must, as far as practicable, view things as they were seen and understood at the time they transpired. There is no other test of truth and justice, which applies to the variable condition of all human concerns. The jurisdiction of the court having been settled at a former term, we have now only to ascertain and determine the boundary in dispute. This, disconnected with the consequences which follow, is a simple question, differing little, if any, in principle from a disputed line between individuals. It involves neither a cession of territory, nor the exercise of a polit-urement of the three miles shall be from the ica! jurisdiction. In settling the rights of the respective parties, we do nothing more than ascertain the true boundary, and the territory up to that line on either side necessarily falls within the proper jurisdiction. 629*] *James I., on the 3d of November, 1620, granted to the Council established at Plymouth the territory on the Atlantic lying between forty and forty-eight degrees of north latitude, extending westward to the sea. And on the 19th of March, 1628, the Council of Plymouth granted to Henry Roswell and others the territory of Massachusetts, which was confirmed by Charles I., the 4th of March, 1629. This grant was limited to the territory "lying within the space of three English miles on the south part of 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 Massachusetts 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 Merrimack River, or to the northward of any and every part thereof," extending westward the same breadth to the sea. On the 13th of January, 1629, the Council of Plymouth granted to the colony of Ply mouth, which on the same day was sanctioned by Charles I., "all that part of New England, in America aforesaid, and tract or tracts of land that lie within or between a certain rivulet or runlet there commonly called Coahasset towards the north, and the river commonly called Narraganset River towards the south," &c. The Council of Plymouth surrendered its charter to the king the 7th of June, 1635. On the 23d of April, 1662, Charles II. granted the territory of the colony of Connecticut, "bounded on the east by Narraganset River, commonly called Narranganset Bay, where the said river falleth into the sea; and on the north by the line of the Massachusetts plantation," &c. The charter of Rhode Island was granted the 8th of July, 1663, by Charles II., limited on the north by the southerly line of Massachusetts. It thus appears that the disputed line is the common boundary between Massachusetts and Rhode Island; the latter lying south of the line, and the former north of it. The true location of this line settles this controversy. The words of the Massachusetts charter, "lying within the space of three English miles on the south part of Charles River, or of any or every part thereof," do not convey so clear and definite an idea as to be susceptible of but one construction. Whether *the meas- [*630 body of the river, or from the head waters of the streams which fall into it, are questions which different minds may not answer in the same way. That the tributary streams of a river, in one sense, constitute a part of it, is clear; but whether they come within the meaning of the charter is the matter in controversy. The early exposition of this instrument by those who claimed under it is not to be disregarded, though it may not be conclusive. This line is said to have been often a matter of controversy between the Plymouth colony and Massachusetts, as early as 1638, and that in that year Nathaniel Woodward took an observation upon part of Charles River, 41 deg. 50 min. north latitude. In 1642, the southern bounds of Massachusetts were ascertained by the said Woodward and Solomon Saffrey, who fixed a station three miles south of the southernmost part of Charles River. And in 1664, a line was run by commissioners from each colony, and their return was accepted by the General Court of Massachusetts, and ordered to be recorded; and it may fairly be presumed that the return was also accepted by Plymouth. This was a construction of the charter by Massachusetts, and assented to by Plymouth, that the three miles were to be measured not from the main channel of Charles River, but from the head waters of one of its tributaries. Grants of land were made by Massachusetts and Connecticut on their common boundary, and also towns were established, without a strict regard to the line, which produced much contention. To adjust these disputes, in 1702. commissioners were appointed by the_two provinces to ascertain the boundary line. They set up their quadrant and took their observation, at, or not far from, the distance of three miles south of the southermost part of Charles River, after which they took a second observation at Bissell's house, called for in the line of Woodward and Saffrey; and it was found that Massachusetts had made grants and established towns south of the line. This line was finally established by commissioners appointed by Massachusetts and Connecticut, in which they admit the correctness of the beginning at Woodward and Saffrey's station, three English miles on the south of Charles River, and every part thereof, agreeably to the charter. Serious difficulties occurred between the border inhabitants of Massachusetts and Rhode Island, on account of conflicting grants, and the establishment of towns. And after much More than two hundred years have elapsed correspondence and legislative action on the since the emanation of the Massachusetts char-subject by the respective parties, it was finally agreed to appoint commissioners to settle the line. In October, 1710, the General Assembly of Rhode Island "enacted, that whereas Major Joseph Jenks being commissionated to treat with Governor Dudley concerning the settling the bounds between the province of Massachusetts and this government; that in case Governor Dudley and himself should not agree so 631*] as to issue the *matter, then Major Jenks is hereby empowered and authorized to offer and conclude on such other terms as he may judge most proper for the interest of the colony." &c. The commissioners of both colonies met at Roxbury, January 19th, 1710-1711, and after stating the authority under which they acted. and having "examined the several charters and letters patent relating to the line betwixt the said respective governments, and being desirous to remove and take away all occasions of dispute and controversy," &c., "they agree that the stake set up by Nathaniel Woodward and Solomon Saffrey, skillful, approved artists, in the year of our Lord one thousand six hundred and forty-two, and since that often renewed, in the latitude of forty-one degrees and fifty-five minutes, being three English miles distant southward from the southernmost part of the river called Charles River, agreeable to the let ters patent for the Massachusetts province, be accounted and allowed on both sides the commencement of the line between the Massachusetts and the colony of Rhode Island." Other matters were adjusted according to the line of Woodward and Saffrey, which need not be referred to. This agreement was signed by Dudley and Jenks, and by three commissioners from Massachusetts and two from Rhode Island. In March, 1711, the Rhode Island Legislature sanctioned this agreement, by authorizing the line to be run in pursuance thereof, and the agreement was accepted and approved of by Massachusetts. In 1716, and also in 1717, commissioners were appointed by Rhode Island to run the line under the agreement at Roxbury, jointly with commissioners from Massachusetts; or if the latter refuse or neglect to act, then to run the line without them. On the 17th of June, 1718, the Rhode Island Legislature, after stating that the commissioners had been retarded in settling the line by the agreement made at Roxbury, &c., "This assembly, taking the premises under consideration, do hereby enact, constitute, and appoint Major Joseph Jenks, and others, a committee to treat and agree with such gentlemen as are or may be appointed and commissionated, with full power, by the General Assembly of the Province of Massachusetts Bay aforesaid, for the final set tling and stating the aforesaid line between the said colonies, hereby giving and granting unto the aforesaid Major Joseph Jenks and others, or the major part of them, our full power and authority to agree and settle the aforesaid line between the said colonies, in the best manner they can, as near agreeable to our royal charter as in honor they can compromise the same," &c. The commissioners of both colonies met at Rehoboth, the 22d of October, 1718, and under their hands and seals again agreed "that the stake set up by Nathaniel Woodward and Solo mon Saffrey, in the year 1642, upon Wrentham Plain, be the station or commencement to begin the line," &c. This agreement being returned on the 29th of October, 1718, was [*632 accepted by the General Assembly of Rhode Island, and ordered to be recorded; and it was also accepted by Massachusetts. And a joint commission, being appointed by both govern ments to run the line as established, met on the 5th of June, 1719, and say: "We, the subscribers, being of the committee appointed and empowered by the governments of the province, &c., for settling the east and west between the said governments, by virtue of the agreement of the major part of the said committee at the meeting at Rehoboth, on the 22d of October last past, at which time the said line was fully settled and agreed, and by them directed to be by us run. Having met at the stake of Nathaniel Woodward and Solomon Saffrey, on Wrentham Plain, the 12th of May, Anno Domini 1719, in the morning, and computed the course of the said agreed line." &c., which line was run by them two miles west of Allom Pond, and they erected monuments at differ ent points. This return was approved by the Rhode Island Assembly. In October, 1748, the Legislature of Rhode Island appointed other commissioners to continue the line to the Connecticut River, recognizing the stake set up by Woodward and Saffrey as the place of beginning. The commissioners thus appointed having met, in 1749, twice, at Wrentham, and Massachusetts having failed to appoint commissioners to act with them, the Rhode Island commissioners proceeded to complete the running of the line. In their report they say: "That we, not being able to find any stake or other monument which we could imagine set up by Woodward and Saffrey, but considering that the place thereof was described in the agreement men tioned in our commission by certain invariable marks, we did proceed as followeth, namely: we found a place where Charles River formed a large current southerly, which place is known to many by the name of Poppotalish Pond which we took to be the southernmost part of said river; from the southernmost part of which we measured three English miles south; which three English miles did terminate upon a plain in a township called Wreutham," &c. These are the leading facts relied on by the respondent to establish the station of Woodward and Saffrey as the place from which the boundary line was agreed to be run, and in fact was run. And we are now to consider how these facts and the arguments deduced from them are met by the complainant. In the first place, it is insisted that the line run by Massachusetts in 1642 was without authority. There does not appear to have been any order from the crown to run this line, nor is it supposed to have been usual or necessary for the crown to give such an order, where no controversy respecting the line was brought before it. The general boundary, as named in the charter, was run and established by the colony or *colonies interested; and [*633 where there was no dispute no further action was required. The controversy in regard to their common boundary, between Plymouth | attention of the court is drawn to the northern and Massachusetts, which seems to have existed as early as 1638, was finally adjusted by running the line in 1664. This line was commenced at the place called the angle tree, which is said to be about two miles south of the Woodward and Saffrey station. When the Woodward and Saffrey station was first established, neither Connecticut nor Rhode Island had a political existence. And the Plymouth colony, which in 1691 was incorporated into Massachusetts, having then a distinct political existence and a common boundary with Massachusetts, assented to the line farther south than the above station. At the time this line was run, neither Connecticut nor Rhode Island can scarcely be said to have had a political organization, as the charter of the former was dated only two years before, and that of the latter one year. Massachusetts, then, in establishing the above station of Woodward and Saffrey, and in running the line, does not seem to have acted precipitately, without authority, or in disregard of the rights of other colonies. boundary of Massachusetts, which the charter describes as "three English miles to the northward of the Merrimack River, or to the northward of any and every part thereof"; which received the construction for which the complainant contends by the king and council. The northern boundary line, as claimed by Massachusetts, included Maine and New Hampshire; and it appears that Mason and Gorges, who claimed under grants, some of which were prior in date to that of Massachusetts, petitioned the king against the encroachments of Massachusetts on territory covered by their grants. The answer of Massachusetts was made, and in 1677 the question was brought before the Privy Council. The title to the land claimed by the petitioners was disclaimed by Massachusetts; and the king and council held, as to the government, that if the province of Maine lies more northerly than three English miles from the River Merrimack, the Massachusetts patent gave no right to govern there." In 1684, the charter of Massachusetts was vacated on a scire facias, by the judgment of the King's Bench, and a new charter was granted in 1691, including Maine and Plymouth, but the southern boundary, as regards the present controversy, was not changed. The northern boundary was again brought before the king and council in 1740, when the decision was, that the northern boundary of the province of Massachusetts be a similar curve line, pursuing the course of Merrimack River at three miles distance thereof on the north side, beginning at the Atlantic Ocean, and ending at a point due north of Pawtucket Falls; and a straight line drawn from thence The misconstruction of the charter, in going more than three miles south of Charles River, is earnestly insisted on by complainant's counsel. If the words of the charter were clear and unequivocal in this respect, there would be great force in this argument. It would be decisive of this controversy, unless controlled by other facts and circumstances in the case. But who can maintain that a line to be run "three miles south of Charles River, or of any and every part thereof," is clearly limited to three miles south of the main channel of the river. Can the body of the river with more accuracy of language be called a part of it, than its trib-due west," &c. In this decision, the call of the utary streams? We call that a part which is less than the whole, when we speak of any thing made up of parts. We do not call a limb a tree, but it is a part of a tree; and if a measurement is to be made from any and every part of the tree, would its branches be disregarded? When we speak of a river, we speak of it as a whole, whether we refer to it above or below a certain point; as bearing north or south, it is the river, in common language, and not a part of the river. The flowing of the water in the channel of the river gives it its name and character, and these are not changed by its length. We speak of the Upper and Lower Mississippi, but neither the one nor the other is called a part of the Mississippi. Had the Massachusetts charter been designed to limit the line to three miles south of the river, would not the language have been, "three miles south of the most southerly bend in the river?" It would therefore seem that the charter may be construed favorable to the respondent. That the construction of the complainant is not a forced one is admitted; and the conclusion 634*] naturally *follows, that men of equal intelligence may differ in opinion as to the true meaning of the instrument. That Massachusetts more than two hundred years ago construed the charter as her counsel now construe it is clear, and the facts proved authorize the conclusion that this construction was not, for many years, opposed by Connecticut or Rhode Island, and at no time by Plymouth. But the charter was disregarded, on a ground that the tribunal deemed equitable, From this it clearly appears, that the decision was not governed by legal principles, but was an exercise of the king's prerogative; and by the same power was the former case determined, although the opinion of the judges was taken, so that neither decision constitutes a rule in other cases for the action of a court of law. In the first case, there was a conflict of jurisdiction, which the crown had power to settle, upon principles of expediency, and although the decision purports to be founded on a construction of the charter, yet other considerations may have influenced it. The decision, however, if not regarded as authority in other cases, is entitled to respectful consideration. *To avoid the effect of the agree- [*635 ments in 1711 and 1718, by the commissioners of both governments, in regard to the line in dispute, the complainant alleges that its commissioners, relying upon the representations of the Massachusetts commissioners, and the words of the charter, did believe that the station of Woodward and Saffrey was within three miles of Charles River; and that the true situation of that station was not known to the authorities and people of Rhode Island until about the year 1750. The fact of a want of this knowledge, after the lapse of more than a century and a quarter, is difficult to establish. It certainly cannot be assumed against transactions which strongly imply, if they do not prove, the knowledge. If |