CARDOZO, J., dissenting. 295 U.S. have been understood, to mean within a reasonable time; that is, within such time as one's persuasion or other adopted means might reasonably be expected to be directly operative in causing an insurrection." "Under the statute as thus interpreted, we say, as before, that the evidence was sufficient to authorize the conviction." Here is an unequivocal rejection of the test of clear and present danger, yet a denial also of responsibility without boundaries in time. True, in this rejection, the court disclaimed a willingness to pass upon the question as one of constitutional law, assigning as a reason that no appeal to the Constitution had been made upon the trial or then considered by the judge. Brown v. State, 114 Ga. 60; 39 S.E. 873; Loftin v. Southern Security Co., 162 Ga. 730; 134 S. E. 760; Dunaway v. Gore, 164 Ga. 219, 230; 138 S. E. 213. Such a rule of state practice may have the effect of attaching a corresponding limitation to the jurisdiction of this court where fault can fairly be imputed to an appellant for the omission to present the question sooner. Erie R. Co. v. Purdy, 185 U. S. 148; Louisville & Nashville R. Co. v. Woodford, 234 U. S. 46, 51. No such consequence can follow where the ruling of the trial judge has put the Constitution out of the case and made an appeal to its provisions impertinent and futile. Cf. Missouri v. Gehner, supra; Rogers v. Alabama, 192 U. S. 226, 230. In such circumstances, the power does not reside in a state by any rule of local practice to restrict the jurisdiction of this court in the determination of a constitutional question brought into the case thereafter. Davis v. Wechsler, 263 U. S. 22, 24. If the rejection of the test of clear and present danger was a denial of fundamental liberties, the path is clear for us to say so. What was brought into the case upon the motion for rehearing was a standard wholly novel, the expectancy of life to be ascribed to the persuasive power of an idea. The defendant had no opportunity in the state court to prepare his argument accordingly. He had no opportunity to argue from the record that guilt was not a reasonable inference, or one permitted by the Constitution, on the basis of that test any more than on the basis of others discarded as unfitting. Cf. Fiske v. Kansas, supra. The argument thus shut out is submitted to us now. Will men "judging in calmness" (Brandeis, J., in Schaefer v. United States, supra, at p. 483) say of the defendant's conduct as shown forth in the pages of this record that it was an attempt to stir up revolution through the power of his persuasion and within the time when that persuasion might be expected to endure? If men so judging will say yes, will the Constitution of the United States uphold a reading of the statute that will lead to that response? Those are the questions that the defendant lays before us after conviction of a crime punishable by death in the discretion of the jury. I think he should receive an answer. MR. JUSTICE BRANDEIS and MR. JUSTICE STONE join in this opinion. WISCONSIN v. MICHIGAN. No. 15, original. Argued February 11, 1935 and April 8, 1935.Decided May 20, 1935. 1. Where errors in the courses and distances in a decree describing the boundary between two States were due to the mutual mistake of counsel for the parties in preparing the decree for acceptance by the Court, the Court has jurisdiction to correct them in a subsequent suit between the same parties. P. 460. 2. A decree declaring the boundary of two States does not deprive the Court of jurisdiction thereafter to define, in a later suit between them, a portion of the boundary, the precise location of which was not an issue in the earlier litigation. P. 460. 3. The descriptions of the Green Bay section of the Michigan and Wisconsin boundary, the one given by the Act creating Wisconsin Territory (April 20, 1836) as ". . . to a point in the middle of said lake [Michigan], and opposite the main channel of Green Bay, and through said channel and Green Bay to the mouth of the Menomonie river . . .", and the other by the Enabling Act (June 15, 1836) by which Michigan became a State, as thence, down the centre of the main channel of the same [Menominee River], to the centre of the most usual ship channel of the Green Bay of Lake Michigan; thence, through the centre of the most usual ship channel of the said bay to the middle of Lake Michigan are in effect the same. P. 460. 4. The evidence establishes that when these Acts were passed, there was no "main or "most usual ship" channel in Green Bay; that it is impossible to identify any channel as the one intended by the Acts, and that neither State has exercised jurisdiction over the waters of the bay that are now in controversy (lying to the west of islands adjudicated to Wisconsin in an earlier case, 270 U. S. 314). Held: (1) That in accordance with the principles of international law, the presumed intent of Congress and the equality of the States under the Constitution, the two States should be allowed equal opportunities for navigation, fishing, and other uses. P. 461. (2) To this end, the boundary will be established through and along, or near, the middle of the waters of the bay that are here in controversy. P. 462. 5. Tracts called "Grassy Island" and " Sugar Island," in fact parts of the Michigan mainland, are adjudged to that State. P. 463. 6. The case is referred to the special master for preparation of the decree. P. 463. THIS original suit to establish a part of the boundary between the two States was heard on exceptions to the report of the Special Master. An earlier case between the same parties is reported in 270 U. S. 295. Mr. Adolph J. Bieberstein, with whom Mr. James E. Finnegan, Attorney General of Wisconsin, Mr. Joseph G. Hirschberg, Deputy Attorney General, and Mr. J. E. Messerschmidt, Assistant Attorney General, were on the brief, for plaintiff. 455 Opinion of the Court. Mr. Meredith P. Sawyer, with whom Mr. Harry S. Toy, Attorney General of Michigan, and Mr. Edward A. Bilitzke, Assistant Attorney General, were on the brief, for defendant. MR. JUSTICE BUTLER delivered the opinion of the Court. This case concerns the Green Bay section of the boundary between these States. In Michigan v. Wisconsin, 270 U. S. 295, the entire boundary was involved. As to that section, the question was whether islands within the bay and other islands surrounded by its waters and those of Lake Michigan belonged to one or the other State. The territory of Wisconsin was created by an Act of April 20, 1836, c. 54, 5 Stat. 10. The stretch of boundary in question is described: ". .. to a point in the middle of said lake [Michigan], and opposite the main channel of Green Bay, and through said channel and Green Bay to the mouth of the Menomonie river. . . ." By the Enabling Act of June 15, 1836, c. 99, 5 Stat. 49, under which Michigan became a State, January 26, 1837, it is described in the reverse direction: ". . . thence, down the centre of the main channel of the same [Menominee river], to the centre of the most usual ship channel of the Green bay of Lake Michigan; thence, through the centre of the most usual ship channel of the said bay to the middle of Lake Michigan . . . As to the section there involved, we said: . . . "In determining the boundary through this section, the question is not embarrassed by differences of description. [p. 314] The evidence shows that there are two distinct ship channels, to either of which this description might apply. From the mouth of the Menominee, the channel, according to the Michigan claim, proceeds across the waters of Green Bay in an Opinion of the Court. 295 U.S. easterly direction until near the westerly shore of the Door County peninsula; thence, in close proximity to the shore, in a northerly direction to a point opposite Death's Door Channel (or Porte des Morts); thence through that channel into Lake Michigan. The channel claimed by Wisconsin, after leaving the mouth of the Menominee, turns to the north and pursues a northerly direction to a point opposite the Rock Island passage which lies between Rock Island and St. Martin's Island; thence through the Rock Island passage into Lake Michigan. The territory in dispute lies between these rival channels, and embraces two groups of islands: (1) Chambers Island, the Strawberry Islands, and a few others, small and unnamed, all within the main waters of Green Bay west of the Door County peninsula; and (2) Rock, Washington, Detroit and Plum islands, lying between Death's Door Channel and the Rock Island passage, at the north end of the peninsula. The evidence as to which of the two ship channels was the usual one at the time of the adoption of the Michigan Enabling Act is not only conflicting, but of such inconclusive character that, standing alone, we could base no decree upon it with any feeling of certainty. [p. 315] . . . But, it is not necessary, for for .. the title of Wisconsin to the disputed area now in question, is established by long possession and acquiescence; and this conclusion is justified by evidence and concessions of the most substantial character. [p. 316] The result is that complainant has failed to maintain her case in any particular; and that the claims of Wisconsin as to the location of the boundary in each of the three sections are sustained." p. 319. The decree (272 U. S. 398) defines the section: "thence down the center of the main channel of the Menominee, to the center of the harbor entrance of said Menominee River, thence in a direct line to the most usual ship channel of Green Bay, passing to the north of |