MR. WEBSTER, in behalf of the state of Massachusetts, as her attorney and counsel in Court, moved the Court for leave to withdraw the plea filed in 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, moved the Court for leave to withdraw the general replication to the defendant's plea, in bar and answer; and to amend the original bill.
Mr. 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 have it determined by the Court, whether it had jurisdiction of the case. This authority is dated 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 by this course. If the Court had no jurisdiction in the matter set out in the bill, the appearance of the state represented by him would not give it. It was thought most respectful to the Court, and proper in the cause, to file the plea with an intention to move the question of jurisdiction, at a subsequent time. Nothing has been done by the state of Massachusetts since; and this Court has determined not to dismiss the bill of the complainants.
The Court has given an opinion in favour of their jurisdiction in the case. In the course of the argument, it appeared that certain difficulties, which might have existed in the case, 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 bill only, the situation of the case might be different.
There is a great deal, from which it may be inferred that if Massachusetts had stood out, contumaciously, there would 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 respect; if from a desire to have the question of jurisdiction 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 to place the case in the same situation as it would have been, had there not been process. If a fair inference may be made, that the state has appeared to the process of the Court, leave is asked to withdraw the appearance. It will be determined, hereafter, what course will be pursued by the state of Massachusetts.
Mr. Hazard, against the motion made by Mr. Webster, cited Knox & Crawford v. Summers & Thomas, 3 Cranch, 421, 496; 1 Cond. Rep. 607. In that case, it was decided, that the appearance of the party 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 argument which was submitted to the Court, on the motion to dismiss this cause, 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 to 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 on 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 to 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 Massachusetts was general; and it was followed by an application for a continuance, and for leave to plead, 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 file 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 and was argued by the counsel for the 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 of the state of Massachusetts, and after the lapse of four years from the appearance of the state by the authority of the governor, giving full power to counsel to act in the cause, a motion to dismiss the cause, for want of jurisdiction, was made by the state of Massachusetts, and was argued. This motion having failed, the Court are now asked to consider the case as if Massachusetts had not appeared; and as if process had not been issued in the cause.
It appears that upon a statement of the case, no further reply to the application on the part of the state of Massachusetts is necessary. The purpose of it is to avoid the effect of the judgment of this Court on the motion to dismiss this bill, to withdraw from the cause. This could not be done in a private case; and why should it be allowed in a case between states?
The counsel seems to found his motion on something in the case, by which it would appear that if no appearance had been entered, the Court would not have taken jurisdiction of the cause; and desires, therefore, to put himself in the situation he would have been in had he not appeared. Suppose a demurrer to this 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 appear in the cause, is no part of the record, and is no part of the case. The object of the motion is, that if any thing has been done by Massachusetts to her prejudice, she may have liberty to withdraw it. She has done it by 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 a state; and that it is the duty of the state to obey the process? If this is so, there is an end of the motion. But if the 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, and has appeared; although there was no right to issue the process, the state should sustain no prejudice from 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 any thing 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 what she has done.
Mr. Justice THOMPSON delivered the opinion of the Court:
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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