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: