djomttton wealth of Jjtasaqhuslfl 
 
 AGAINST 
 
 THE STATE OF RHODE ISLAND 
 
 AND 
 
 PROVIDENCE PLANTATIONS. 
 
 READ AND CIRCULATE. 
 
 TAUNTON: 
 
 PRINTED BY C. A. ITACK, 7 UNION BLOCK, 
 1861. 
 
Digitized by the Internet Archive 
 in 2019 with funding from 
 Duke University Libraries 
 
 https://archive.org/details/commonwealthofmaOOtaun 
 
MASSACHUSETTS vs. RHODE ISLAND, 
 
 THE CASE AS IT IS. 
 
 From the early settlement of this country down to the year 1741, 
 the Plymouth Colony and Massachusetts, after they were united in 
 1692, extended from the Atlantic Ocean to Narraganset Bay and the 
 Seekonk and Blackstone rivers. The present towns of Cumberland, 
 Barrington, Warren, Bristol, Tiverton, Little Compton and Fall Riv¬ 
 er, now in Rhode Island, received the charter of their existence from 
 what is now Massachusetts. For that whole period they were under 
 her jurisdiction, sent representatives to her General Court, paid taxes 
 to her officers, held their title deeds under her laws, and had justice 
 administered in her courts. In all respects they were as much a part 
 df Massachusetts as the town of Boston itself. They were such by 
 natural position, by original charter from the British Crown, by pur¬ 
 chase from the aboriginal owners, by prior settlement, by more than a 
 century of quiet, peaceable, undisputed possession and jurisdiction.— 
 Indeed, this last ground, were there no other, would vest the complete 
 jurisdiction over those towns in Massachusetts; since States, as well 
 as individuals, may acquire rights by long continued possession. 4 
 Howard’s Rep. 591. 
 
 In justice and equity therefore Massachusetts ought at this day, as 
 heretofore, to have and enjoy her domain to the centre of Narragan¬ 
 set Bay and the rivers above named. But let that pass. It is now 
 too late to recover the lost. It may not be to preserve the remainder. 
 Massachusetts has once been robbed of the fairest portion of the Old 
 Colony. Shall the spoliation continue ? 
 
 In the year 1741, as before stated, Rhode Island set up a claim to 
 a portion of Massachusetts, and Commissioners were appointed by the 
 British Crown to hear and determine the controversy. They did so; 
 and set off to Rhode Island the towns before named, and also estab¬ 
 lished the line in Seekonk river at “ the eastward side thereof.” Had 
 these Commissioners fixed precisely where the new line established by 
 
4 
 
 them really was, the controversy between the states as to this bound¬ 
 ary would probably have terminated. But they did not. They did 
 not go upon the land, measure and run out the lines, and set up mon¬ 
 uments thereon. They merely described the line on paper, giviug the 
 points of beginning, the courses, distances, &c. The line of separation 
 was described by them as a line three miles east and north-east from cer¬ 
 tain well known points on the eastern shore of Narraganset and Mount 
 Hope Bay. And immediately after, without proper notice to Massa¬ 
 chusetts, Rhode Island proceeded to run the line ex parte. Her Com¬ 
 missioners ran too far inland, and appropriated to Rhode Island a por¬ 
 tion of the rightful territory of Massachusetts, of an average width of 
 one third of a mile, and from thirty to forty miles in length. This 
 fact is not in any degree doubtful. It has been ascertained by repeat¬ 
 ed measurements, and admitted by Commissioners of Rhode Island, in 
 a report to the General Assembly of that state, made in 1791. There 
 is also a question whether the “ eastward side ” of Seekonk river is at 
 high or low water mark. This is the difference between the two states. 
 It is true that a majority of the Massachusetts Commissioners appoint ed 
 in 1844, did substantially agree with the Commissioners from Rhode 
 Island upon a boundary line, and so reported to the Governor and 
 Council in 1848. But their proceedings were, witli entire unanimity 
 and no little indignation, declared by the Legislature to be “ null and 
 void,” and a special Commissioner was appointed in 1852 to prostrate 
 the eighty-four stone monuments set up by the Massachusetts officers. 
 [See No. 128 of the Senate Documents for 1848. Resolve of 1848, 
 ch. 75, and of 1852, ch. 61.] Nothing can more forcibly illustrate 
 the sensitiveness of the people of this Commonwealth to the action of 
 any of her officers, by which her rights in this disputed territory should 
 be at all compromised; and this action is the more significant when it 
 is remembered that the Massachusetts Commissioners, whose action 
 was thus repudiated after full and faithful examination before a special 
 committee, were the Hon. Myron Lawrence, of Belchertown, and the 
 Hon. Wm. Bay lies, of Bridgewater. 
 
 One more effort was made to settle upon a compromise or conven¬ 
 tional line, and three Commissioners were appointed by the Governor 
 to confer with like Commissioners from Rhode Island. Three years 
 were spent in negotiations, but without success. Finally in 1851, 
 the Commissioners reported that it was improbable any satisfactory 
 negotiation could be effected until the true line was settled.— 
 [See House Doc. No. 120,1851.] Thereupon Gov. Boutwell, under a 
 resolve of 1848, c. 75, instituted a suit in equity in the Supreme Court 
 of the United States, for its final determination. The bill was filed in 
 1852, asking that Court to appoint disinterested Commissioners to run 
 out the line as described by the King’s Commissioners in 1741, and 
 set up monuments thereon, so that, its exact position might be known. 
 
5 
 
 ascertained and established. This was a simple, natural, rational way 
 of settling the controversy. It is the way two farmers would natural¬ 
 ly take to determine a disputed boundary between their estates. It 
 looked entirely towards ascertaining and determining the true bound¬ 
 ary line ; if not exactly, yet as nearly as practicable. Now comes the 
 first extraordinary step in the history of this controversy, and one which 
 demands the scrutiny of the people of this Commonwealth. Before any 
 hearing lias been had under the proceeding in equity, before any Com¬ 
 missioners have tried to run out the line, and even before any have 
 been appointed for that purpose, a proposition is made to abandon all 
 effort to find the real line, or even an approximation to it, and instead 
 thereof to create an entirely new, arbitrary and artificial boundary, by 
 ceding to Rhode Island the flourishing town of Pawtucket and the 
 more valuable portion of Seekonk, in exchange for the town of Fall 
 River, R. I., and a small portion of Tiverton. Is such a proceeding 
 necessary? Is it just and expedient ? Is it constitutional ? 
 
 First,—Is it necessary ? The main argument in its favor is that the 
 question is of long standing, and ought to be settled in some way; that 
 “ the true line is now difficult of verification, on account of the uncer¬ 
 tainty of ancient landmarks, and the unsatisfactory nature of the docu¬ 
 mentary evidence.” [See Attorney General Phillips’s report, Jan. 23, 
 I860.] This statement is in direct conflict with the prior opinion of 
 Massachusetts officers. But supposing it to be so ; is that sufficient rea¬ 
 son why some effort should not be made to find it ? True; the parties 
 interested have not yet been able to see alike; they seldom do; but it 
 does not follow that disintere°ted Commissioners appointed by the Su¬ 
 preme Court might not find the ancient and true line. None such have 
 yet made the attempt. Until they have had an opportunity to try, it is 
 not reasonable to suppose they would not succeed. In 1848, a joint 
 special committee of the Senate and House of Representatives of Mas¬ 
 sachusetts, in a very elaborate and careful report to the Legislature, 
 say that it was proved before them that “the line of 1741 could be 
 run without difficulty.” [See Senate Doc. No. 128, 1848, p. 58.] 
 Again on page 68 of the same document the committee say: “ The 
 line of the Commissioners of 1741 is precisely marked out in their pro¬ 
 ceedings and by their plan; and there will he no difficulty in ascer¬ 
 taining, by well known principles of law, the precise location.” 
 
 They would find the line either where Massachusetts claims it to be, 
 or w r here Rhode Island locates it, or else somewhere between them. 
 In no event would they go outside of the disputed territory itself, and 
 at the worst their line would only coincide with the claims of Rhode 
 Island; but this would not take away from Massachusetts anything 
 she now has in fact; since Rhode Island has long exercised jurisdic¬ 
 tion as far eastward as she contends the line to be. In the worst re- 
 
6 
 
 suit of the case, therefore, Massachusetts could only fail to recover 
 back the territory she thinks Rhode Island has unjustly encroached up¬ 
 on ; but her present actual jurisdiction would not be reduced in the slight¬ 
 est degree. And even that result would be an advantage of $1,500,000 
 over the present proposed exchange. But should the United States 
 Commissioners “split the difference,” as is not impossible, it would be 
 so much clear gain for Massachusetts, with no corresponding loss. If 
 they could not find the exact line, every foot of the way to a mathe¬ 
 matical certainty, they might approximate to it with substantial accu¬ 
 racy, sufficient for all practical purposes. De minimis non curat lex. 
 Wherever the Commissioners should establish the line, it would forev¬ 
 er end the controversy. Massachusetts would be entirely content 
 with the result. Rhode Island must abide by it. And the line thus 
 fixed would by both States be deemed, and taken to have always been 
 the true and ancient line. The controversy would thus reach a natu¬ 
 ral, a reasonable, and a satisfactory result to all parties. Such was 
 the mode contemplated by the Legislature in 1848, directing the 
 Governor to “ institute such process as he may deem proper in the 
 Supreme Court of the United States, for the purpose of having a final 
 adjudication upon said line.” Such was the declared object sought in 
 the bill in equity itself. Here is the prayer of that bill, as the law¬ 
 yers call it: “ And your complainants pray that the boundary line 
 
 between Rhode Island and Massachusetts may, by the order and de¬ 
 cree of this honorable Court, be run out, distinguished, ascertained 
 and established, and monuments erected thereon; and that a commis¬ 
 sion may issue for that purpose,” &c. 
 
 In 1853, His Excellency, John H. Clifford, declared in his inaugu¬ 
 ral address : “ The long pending controversy between us and Rhode 
 
 Island, concerning the true boundary between the two States, under 
 the direction of the Executive, and in conformity with the expressed 
 will of the Legislature, has been brought before the Supreme Court of 
 the United States for a final determination and adjustment, and the 
 protracted and vexatious controversy will now be decided by an um¬ 
 pire in whose judgment it can not be doubted both parties will repose 
 with extra confidence.” No doubt of it. This is precisely what the 
 people of Massachusetts desire. In 1848, the Hon. Tristam Burgess, 
 of Seekonk, residing on the very territory now proposed to be ceded 
 to Rhode Island, entered his most solemn protest against any agree¬ 
 ment transferring to Rhode Island any territory rightfully belonging to 
 Massachusetts; and under the sanctions of his oath, declared thus: 
 “ Finally I state it as a fact, which, from all I have heard, I fully be¬ 
 lieve, that the people of Massachusetts, bordering on this line, from 
 the ocean, to the line of this State on the north, will never be satisjied, 
 until this line is settled by the Supreme Court of the United States.” 
 For more than twenty years the people of Fall River, Westport, 
 
7 
 
 Swanzey, Seekonk, Pawtucket and Attleborough, along on this line 
 have been constantly demanding that this question should be settled 
 by the Supreme Court; and that commissioners appointed by that 
 Court should run out and declare the true line of 1741. At a gener¬ 
 al convention of the people held at Fall River in June 1847, upon 
 this very subject, it was unanimously resolved that “ the only proper 
 tribunal for determining all such matters, and the only one that will 
 give satisfaction to all concerned, is the Supreme Court of the United 
 States.” Finally in 1852, the suit is brought in the United States 
 Court for that very purpose. And just as we are or ought to be in a 
 condition to obtain some decision upon our rights, the whole .pursuit is 
 suddenly abandoned. Why ? At whose instigation is the whole poli¬ 
 cy of the government so suddenly reversed ? A policy which fifty 
 years of repeated experiments had proved absolutely necessary to be 
 carried oyt, before any satisfactory negotiation could be accomplished 
 in settling this important question ! Who first suggested the resolve 
 authorizing any renewed negotiations? What satisfactory public 
 reason can be given for such a sudden change in the management of 
 this case ? 
 
 What has occurred to show the impossibility of terminating the 
 controversy in the way first proposed ? Has any new light dawned 
 upon the case, since it was commenced, that makes it necessary to 
 strike our flag, before firing the first gun ? Has the “ unsatisfactory 
 character of the documentary evidence ” become so wonderfully 
 changed, or has “ the uncertainty of the ancient landmarks ” so marvel¬ 
 ously increased since the bill was filed, that no person shall be now re¬ 
 quested even to look for them ? 
 
 Second,—Is the proposed exchange, just and expedient ? In the 
 first place it is grossly unequal, in population, ratable polls, voters, tax¬ 
 able property and territory. 
 
 By the census of 1860, Pawtucket has a population of 4,200 
 
 That part of Seekonk ceded to Rhode Island, 1,854 
 
 Total, -6,054 
 
 Fall River, R. I., has 3,377 
 
 Tiverton, (5 houses) say 23 
 
 Total, -3,400 
 
 Balance against Massachusetts, 2,654 
 
8 
 
 Number of Ratable Polls in Pawtucket. 951 
 
 “ “ Seekonk, 388 
 
 Total, -1,339 
 
 Number of Ratable Polls in R. I.. less than 839 
 
 Balance against Massachusetts, 500 
 
 Number of Voters in Pawtucket, (1857) 603 
 
 “ “ Seekonk “ 325 
 
 Total, - 928 
 
 Number of Voters in R. I., not over 335 
 
 Balance against Massachusetts, 
 
 593* 
 
 Taxable property of Pawtucket, (town val¬ 
 uation, 1860) 
 
 do. Seekonk, do. 
 
 Total, 
 
 Taxable property in Rhode Island, (same) 
 not over 
 
 $1,976,139 
 
 1,021,359 
 
 -2,997,498 
 
 1,300,000 
 
 Balance against Massachusetts, $1,697,498 
 
 Right of access to tide waters lost, (miles,) 23^ 
 
 “ “ gained, “ not over 3 
 
 Balance against Massachusetts, 204 
 
 Acres of land in Massachusetts, transferred, 11,840 
 
 “ “ Rhode Island, acquired, one-third 
 
 of which is fresh water ponds, having their nat¬ 
 ural outlet in Massachusetts, 7,040 
 
 Balance against Massachusetts, 4,800 
 
 By the above facts it clearly appears that if this arrangement is 
 consummated. Bristol County will incur a net loss of one thirty-fifth 
 of her entire population ; and in valuation, a net loss of about one 
 fortieth of her entire taxable estate ! As great a proportionate loss 
 to the County of Bristol as to the State would be the whole population 
 of the County of Franklin, or the wealth of Barnstable, Nantucket and 
 Duke’s Counties combined ! 
 
 In every respect, therefore, it is manifest that Massachusetts is the 
 loser. And this is so, even if Rhode Island had the clear and undis¬ 
 puted right to that which Massachusetts is thus buying of her at so great 
 a price. What will be thought of the negotiation, in a mercantile point 
 
 * Probably this balance would be somewhat reduced by counting those natur¬ 
 alized persons in Rhode Island, who are not voters there, but might become such 
 in Massachusetts. There may he 100 in all. 
 
9 
 
 of view, when it is remembered that a large portion of this very terri¬ 
 tory said to be acquired by the conventional line is already ours .by 
 right? Gov. Boutwell, in his message of March 31st, 1851, on this 
 subject says: ‘ ; I have no doubt that the line here (at Fall River) 
 claimed by Massachusetts is the true line.” The citizens of Fall Riv¬ 
 er, in 1860, unanimously resolved that they “ would have been con¬ 
 tent with the decision of the Court, which, in the opinion of the late 
 Mr. Choate, and other eminent lawyers, would have given us the four 
 hundred and forty rods to the southward.of the mouth of Fall river, 
 which would ha ve included Jive-sixths of the population obtained by 
 the conventional line.” To buy our own property and pay twice its 
 value must be the culmination of commercial sagacity! 
 
 But in looking at this subject in the light of equivalents, it should 
 not be forgotten that in 1860, the Rhode Island commissioners con¬ 
 sented to relinquish to Massachusetts all they now do, in exchange fol¬ 
 iar less of Massachusetts property than the present line transfers 
 to Rhode Island. The original conventional line first agreed upon 
 did not cede any part of Pawtucket to Rhode Island, but only a part 
 of Seekonk, and Swanzey, and a small tract in Westport. By that 
 line, the balance against Massachusetts in valuation, was about 
 $150,000 instead of $1,600,000 That exchange was a great bargain 
 for Rhode Island. It was agreed to by her Commissioners and by the 
 joint committee in her General Assembly. The bill for it passed the 
 House, and Mr. Hayes there said that the control of Narragansett 
 Bay alone was worth all they were required to part with. In order to 
 carry it through the Senate, an alteration of the contract was made 
 by which Rhode Island should gain, and Massachusetts would lose 
 $1,500,000 more than the Rhode Island Commissioners ever had the 
 face to ask! Unaccountable as this may appear, it is strictly true. 
 But no corresponding equivalent from the State of Rhode Island 
 so far as we can learn, was ever offered to us by that state. 
 
 Now this great inequality has a practical interest for every tax 
 paver in the County of Bristol. 
 
 By our last County Treasurer’s report he foots up an indebtedness 
 of about $100,000, most of which, sooner or later, must be paid by di¬ 
 rect taxation. Striking out $1,500,000 of our entire assets at one ne¬ 
 gotiation does not lighten the burden upon the remainder. To the 
 loss thus arising from a diminution of our assets must also be added 
 that consequent upon the reduced number of ratable polls, which can¬ 
 not well be less than $500 to $800 on every county tax. 
 
 Nor is this all. Our State valuation for the next ten years has just 
 been completed. The estimate for Bristol County is $66,294,256. 
 On that sum our proportion of the State tax is to be computed until 
 
10 
 
 1870. Whether we have it or have it not, we must pay the State 
 taxes on that sum, until a new valuation takes place. By the pro¬ 
 posed exchange the entire taxable estate of the County is essential¬ 
 ly diminished. 
 
 But were the proposed exchange entirely equal in all respects, is it 
 expedient to make it? The argument in favor of doing so is that it 
 will be for the interests of Fall River, to bring “under one jurisdiction 
 the whole of a densely peopled territory, hitherto divided by an imagi¬ 
 nary line, cutting diagonally across streets and through residences and 
 subject to the diverse laws and policy of separate States.” This is the 
 reason put forth by the citizens of Fall River in their Resolutions of 
 1860. Grant it. Give to the consideration the weight to which it is 
 entitled. Is that a sufficient reason why a much larger portion of our 
 own people, territory and property should be ceded away in exchange 
 and against the consent of those thus to be transferred? It may fur¬ 
 nish a good reason why the territory claimed by Rhode Island, adjoin¬ 
 ing Fall River, should be bought, and paid for out of the public treas¬ 
 ury, and all adverse claim thereto on the part of Rhode Island extin¬ 
 guished. Against that we have nothing to say. But is it a sound 
 and safe precedent to establish, that the boundaries of our Common¬ 
 wealth shall be continually shifting whenever a town happens to 
 grow up on the border, extending into an adjoining State, whose inter¬ 
 ests would be promoted by being under one jurisdiction? If so, we are 
 indeed held together by a rope of sand. To-day our northern bound¬ 
 ary is a straight line from the Merrimack to the Empire State. To¬ 
 morrow it may be as winding and irregular as the Merrimack itself. 
 This year one county may be the largest and most populous in the 
 State; the next it may be the smallest and most insignificant. If the 
 principle is a sound one in Bristol, it is in Berkshire, and an addition 
 to one county may be obtained by the cession of perhaps a much 
 larger territory from quite a different county. 
 
 Besides; what is to hinder a repetition of the same exchange a few 
 years hence at Fall River itself? That flourishing city may extend 
 in a short time down to the boundary line it is now proposed to create. 
 Its business interests will have again pushed it across the border. The 
 present inconveniences will again present themselves, aggravated by 
 the increased population of the city. In the mean time the city of 
 Providence has been lengthening her cords and strengthening her 
 stakes eastward, and her wants and interests require additional room 
 for expansion. If the argument for exchange is sound now, it will be 
 then ; and another slice must be carved off from Massachusetts in ex¬ 
 change for an equal or less territory from our more sagacious neigh¬ 
 bor. Who can foretell the end of the series? Can it be wise; can 
 it be expedient thus to be constantly disturbing our long established 
 and intimate relations, dividing towns, separating school districts, sun- 
 
11 
 
 dering parishes and religious societies, and subjecting our people to 
 such continual changes in all their civil, social, and political relations? 
 
 1'hird. Is the exchange constitutional ? It is to be noted that this 
 is not a proposition to settle by agreement what was the true and real 
 line, but it is to cede away the acknowledged and undisputed territory 
 and people, soil and citizens of one State for those claimed by another. 
 The natural objection entertained by all loyal citizens to such a pro¬ 
 ceeding is well set forth in the petition of the city of Fall River itself 
 (now said to be in favor o'f trading away Pawtucket and Seekonk.) 
 signed by over five hundred of her most respectable citizens, in these 
 words: 
 
 “ To the Hon. Senate and House of Representatives in General 
 Court assembled: The undersigned inhabitants of Fall River, res¬ 
 pectfully pray that no part of the territory within the rightful bounda¬ 
 ries of this Commonwealth may be alienated therefrom to the State of 
 Rhode Island by the voluntary act of the Legislature of Massachu¬ 
 setts.” 
 
 True; this petition was signed and presented in 1848, but princi¬ 
 ples remain the same, although circumstances are said to alter cases! 
 
 Neither is it a question whether those citizens who desire to leave 
 Massachusetts with their persons and property shall be allowed to do 
 so ; but it is whether those who are anxious to remain in this Common¬ 
 wealth shall be compelled to depart. And here again we are indebted 
 to Fall River for the forcible presentation of the feelings and senti- 
 meuts which now influence and govern a very large number of inhab¬ 
 itants of Massachusetts residing upon the territory proposed to be ce¬ 
 ded away. For in 1848 the line agreed upon by the Commissioners 
 of the two States (afterwards repudiated by Massachusetts,) left a few 
 citizens at Fall River on the Rhode Island side. Those citizens very 
 properly remonstrated against the line, saying that “ they*had contrib¬ 
 uted their full proportion to the public buildings, churches, and school 
 houses in Massachusetts, that they had long enjoyed in safety and tran¬ 
 quility, the blessings of life under the stable institutions and beneficent 
 laws of this Commonwealth; that their children had received and im¬ 
 proved the privileges and advantages of education, and of moral and 
 religious instruction, secured by her constitution and laws; and which 
 were the rich inheritance of her children. That their sympathies 
 were with her institutions and people, and they cherished the hope 
 that the same advantages and blessings would be the inheritance of 
 their children’s children.” Their prayer prevailed; the General Court 
 declared the action of her own officers null and void ; and those peti¬ 
 tioners still remain citizens of Bristol County. Is our Commonwealth 
 less considerate of her loyal and faithful people now than in 1848? 
 
12 
 
 But the existence of any constitutional power to cede away the peo¬ 
 ple and territory of a State is at least doubtful. If it can be done with 
 one town it may with two, and with an entire county. If the right be 
 admitted nothing can prevent the constant tampering with the bound¬ 
 ary as often as an occasion or a temptation arises. The dominant po¬ 
 litical power in a State may exchange any portion of their political 
 opponents for an equal number of their political friends from another 
 State; provided, always, Congress consents; and how that con¬ 
 sent can be obtained, we shall presently see. Again ; if territory of 
 Massachusetts may be constitutionally ceded to an adjoining State, it 
 may be to one more distant. Boston, and Charleston, S. C., may 
 change sovereignties if the Legislatures of the two States see fit, and 
 Boston has no redress! Can it be that the tenure of our citizenship 
 in Massachusetts is so frail? 
 
 But if the right exists at all under our Constitution, it can reside 
 only in the Legislature , the direct representative of the people them¬ 
 selves. To cede away our domain is one of the highest Legislative 
 acts. It cannot be delegated to the Attorney General, even subject 
 to the approval and direction of the Governor and Council; which, it 
 is claimed has been done by the Resolve of 1859, ch. 69. Our bill of 
 Rights, Art. XXX., declares that, “ in the government of this Com¬ 
 monwealth, the Executive shall never exercise the legislative and ju¬ 
 dicial powers, or either of them; to the end that it may be a govern¬ 
 ment of laws and not of men.” As well might the Legislature dele¬ 
 gate to the Governor and Council the power to make all the laws, 
 and adjourn themselves after the first week of their session ! 
 
 It is hardly necessary to add in this connection, that by the existing 
 laws of this Commonwealth, [Gen. Statutes, ch. 17, p. 1.] “The 
 boundaries , rights, duties, powers, privileges and immunities of the sev¬ 
 eral counties shall remain as now established.” Of course as this is 
 but a Statute, and not a constitutional provision, the Legislature may 
 change the boundaries of two adjoining counties in this Commonwealth 
 as was held by the Supreme Court in 1851, [see 6 Cush. 578,] but no 
 power less than the Legislature can do it. It would be in direct con¬ 
 flict with the Statute above cited. 
 
 But again; even if the power to make the proposed exchange of ter¬ 
 ritory could be constitutionally delegated to the Governor and Coun¬ 
 cil, did the Legislature of 1859 intend to give any such power on 
 this subject as has been exercised? Here is the resolution: 
 
 “Resolved, That the Attorney General and the counsel on behalf of the Com¬ 
 monwealth, subject to the direction and approval of the governor and council, be 
 and they arc hereby authorized to negotiate for the adjustment of the proceeding 
 in equity now pending in the supreme court of the United States between this 
 Commonwealth and the State of Rhode Island, and Providence Plantations, by 
 the adoption of a conventional line, to be confirmed by a decree of said court, and 
 
13 
 
 that for the purpose aforesaid, and the general expenses of conducting said suit, 
 the governor be authorized to draw his warrant for a sum not exceeding five 
 thousand dollars.” 
 
 “ Negotiate for the adjustment of the proceeding in equity now 
 pending in the Supreme Court.” What was that proceeding in equi¬ 
 ty ? It was to ascertain and determine the true line on certain disput¬ 
 ed territory. Nothing more. An authority to adjust that line might 
 empower the Attorney General to agree upon some conventional line 
 within, upon and relating to the disputed territory, but not to negotiate 
 for other territory entirely outside of it. It would not authorize the 
 exchange of one-half of Massachusetts for one-half of Rhode Island, 
 which might have been done under that resolve with as much pre¬ 
 tence of right, as that which has been done under it. No per¬ 
 son would naturally understand by that resolve that author¬ 
 ity v r as given to cede away any material portion of territory, 
 about which there was no dispute, and to which Rhode Island made 
 not the least claim. Yet every acre of the two towns proposed to be 
 given to Rhode Island is acknowledged to be our soil, as much as that 
 on wdiich the State House in Boston stands. The difference between 
 the two powers is manifest. The power to adjust and determine bound¬ 
 ary lines is a very different power from that of creating entirely new 
 boundaries. In a dispute between individuals as to the boundaries of 
 their farms, arbitrators appointed to adjust the same cannot transfer 
 land from one to the other. They can only determine the pre-existing 
 lines. \_Searle v. Abbe, 13 Gray’s Rep. 412.] 
 
 It is clear therefore that the resolution does not authorize the pro¬ 
 ceedings done under it. 
 
 One more suggestion and we close. It is admitted on all sides that 
 two states can not make any agreement transferring each other’s terri¬ 
 tory “without the consent of Congress.” [Constitution ol the United 
 States, Art. I, Sec. 10.] It is claimed by. some that such consent has 
 been obtained; and in this mode. In 1859 Congress enacted the fol¬ 
 lowing Statute: 
 
 “Be it enacted, &e., That the Attorney General is hereby authorized and direc¬ 
 ted to intervene and represent the United States in the proceeding in equity, now 
 pending in the Supreme Court between the Commonwealth of Massachusetts 
 and the State of Rhode Island and Providence Plantations, and to consent on be¬ 
 half of the United States to the adjustment of said suit by a conventional line to 
 be agreed upon by the parties, and confirmed by a decree of said Court, if, in 
 his judgment, the rights and interests of the United States will not bo prejudiced 
 thereby.” 
 
 Unless the consent of the Attorney General under this act to the 
 proposed conventional line is the consent of Congress within the mean¬ 
 ing of the Constitution, it is admitted that the compact is unauthoriz¬ 
 ed. But how can Congress delegate that power to the Attorney Gen- 
 
14 
 
 eral ? The Constitution vests it in Congress; the whole Congress. 
 They can no more delegate to the Attorney General that power than 
 any other. It is a matter entrusted to their judgment and their dis¬ 
 cretion. But this statute, if valid, confides the whole matter to the 
 judgment and discretion of the Attorney General, even in advance of 
 knowing what the proposition is. 
 
 If this objection is valid, Congress must give its consent in some oth¬ 
 er form before the proposed exchange can be carried out. That con¬ 
 sent may or may not be obtained upon a full and fair public hearing 
 in Congress, hut the mode by which consent was attempted to be ob¬ 
 tained, has a suspicious appearance. It is a part of the same scheme 
 by which the subject was withdrawn from the action of the Legisla¬ 
 ture of Massachusetts, and entrusted to the Governor and Council. 
 
 Those who were interested to bring about this negotiation knew 
 full well that the Legislature would never knowingly consent to it. 
 They were well aware how promptly and how unanimously both 
 branches in 1848 rejected and repudiated the action of her two worthy, 
 intelligent and able commissioners, and would not consent to the trans¬ 
 fer of a foot of territory to Rhode Island rightfully belonging to Mas¬ 
 sachusetts. They knew there was no hope of accomplishing the pro¬ 
 ject in a public and open way. It must be smuggled through. Thus 
 far they have succeeded. It remains to be seen what the final result 
 will be. 
 
 And that suggestion leads to the final inquiry: What is now to bt 
 done ? We answer,— 
 
 1st, Repeal the Resolve of 1859, so far as it is not yet executed 
 and direct the Attorney General of Massachusetts not to consent to 
 any decree in the United States Court, establishing the proposed line. 
 
 2d. Let commissioners be appointed by the United States Court 
 to run out and mark the true line, as near as practicable, between the 
 two States according to the object of the bill of equity. If arty nego¬ 
 tiation is then desirable between the two States, we shall know what 
 we need to buy, and what our neighbor has to sell. 
 
 3d. If it is entirely certain that we shall fail to establish our rights 
 to any portion of the territory in dispute, withdraw the suit at once. 
 We thereby lose nothing which we now possess, as Rhode Island .al¬ 
 ready has jurisdiction over all the controverted ground. By so doing 
 we shall save over $1,500,000 of net loss incurred by the proposed 
 conventional line, and escape the disgrace of having voluntarily traf¬ 
 ficked in our own fellow citizens. 
 

 
Trials„ 
 
 L65832 
 
 DATE 
 
 
 ISSUED TO 
 
 Oo/.'V