Privy Council not only in propria persona but as the agent of Connecticut and of Major Atherton and his associates in their various pretensions to the Narragansett region. On the voyage thither he was taken, in January, 1680, by an Algerian pirate and held in slavery for ransom. When he was eventually released upon its payment, he died in London within a few days after his arrival, leaving it to the Privy Council to decide in 1727 and 1746 the claims. which he had espoused, adverse to his contentions and in favor of the stout little colony of Rhode Island, of which he was an unworthy resident.

Passing by the many cases of appeal from local courts to the Privy Council involving a denial or miscarriage of justice, which could and probably would be taken in ordinary course from a lower to a court of last resort, inasmuch as they neither furnished a precedent nor throw light upon the judicial power of the United States, the three categories of appeals will be considered, and in some little detail, as they are apparently the source of that jurisdiction conferred in first instance upon the Congress by the ninth of the Articles of Confederation and upon the Supreme Court of the United States by twelve of the original thirteen States in creating the more perfect Union.

First as to boundary disputes between the colonies in the absence of an enforcible agreement between them. Instead of discoursing in general and in the abstract upon the nature and jurisdiction of the Privy Council and the Lords Commissioners of Trade and Plantations, it is advisable to take a specific and concrete case, to follow it from the beginning to the end, and thus, as it were, let it tell its own story. For this purpose the long drawn out controversy between New York and New Jersey is chosen, not only because it is complete in itself, but because it states perhaps better than any other the ordinary course of procedure in such disputes.

Boundary
Dispute
Between

New York
Jersey

and New

On December 23, 1717, an Act of the Assembly of the Colony of New From York called attention to the fact that:

"The Partition Lines between this Colony and the Colony of . . . NewJersey, are necessary to be known and ascertained, in order that such of the Inhabitants of this Colony, whose Estates or Habitations are adjacent to, and border on the said Partition Lines, may peaceably, and without Molestation, enjoy the Fruits of their Industry; and that the Government may not be defrauded of the publick Taxes that may arise and become due from the said Inhabitants, by their pretending that they do not dwell within this Colony. . . " i

For this purpose money was appropriated to "be applyed to defray that part of the Charge of Running, Surveying and ascertaining the Partition Line. Limitt and Boundary between this Colony and the Colony of New Jersey which may be requisite for this Colony to pay . . . in such parts & propor1 Laws of New-York from the Year 1691, to 1751, inclusive (1762), p. 125.

Negotiation to Judicial Procedure

tions as shall be requisite for that Service, when the Survey ascertaining and Runing of the said Line Limitt and Boundary shall be began and Carryed on by the mutual Consent and agreement of his Excellency & Council of this Province and the Proprietors of the soil of the said Province of New Jersey . . . which Lines being Run ascertained and agreed on by the Surveyors and Commissioners of each Colony, as afore said, shall forever thereafter be Deemed taken be and remain as the partition Line Limitt and Boundary of this Colony, and all bodys Corporate and Politick, and all other persons whatsoever within this Province, shall be forever Concluded thereby."

66

On March 27, 1719, the Province of New Jersey passed an Act “ for running and ascertaining the Division Line betwixt this Province and the Province of New-York," and after stating the existence of disputes and controversies between the two colonies, as in the case of the New York Act, provided for the appointment of two or more commissioners with the Surveyor General of the Province of New Jersey, by the Governor of New Jersey, by and with the consent of the Council, "empowered by a Commission under the Great Seal of this Province, to join with such Commissioners and Surveyors as shall be appointed on the Part and Behalf of the Province of New-York," to "Run, Survey, Agree on and Ascertain the said Line, Limits and Boundaries betwixt this Province of New-Jersey, and the said Province of NewYork, according to the true Limits thereof, as near as conveniently can be done." And it was further provided that the line drawn by the commissioners of the two provinces in accordance with their commissions was to be considered the boundary line between the two provinces "any Law, Usage, Custom or Pretence to the contrary in any wise notwithstanding." 1

In 1719, pursuant to the Acts of New York and New Jersey, Governor Hunter of the former colony issued commissions to two commissioners and the Surveyor of the province to meet with the two commissioners and the Surveyor General of the province of New Jersey, "in Order to find out and Determine which of the Streams is the Northermost Branch of the River Delaware, And that then when such Branch is so Discovered that the said Surveyor or Surveyors Carefully According to the best of their Knowledg and understanding Discover and find out that Place of the said Northermost Branch of Delaware River that Lyes in the Latitude of fforty one Degrees and fforty Minutes which is the North Partition Point of New York and New Jersey," and to " Discover that part on the West side of Hudson's River that Lyes in the fforty One Degree of Latitude," and having fixed these two points, to run a straight line between them, "which line being so Run and Marked out is forever hereafter [according to the Acts of the two Colonies] to be 1 The Acts of the General Assembly of the Province of New Jersey (1752), Vol. i, pp. 77-8.

Deemed taken be and Remaine as the Partition Line Limitt and Boundary between our said Provinces of New York and New Jersey."

"1

By an indenture of July 25, 1719,2 the commissions appointed by the two colonies certified that the point of the Delaware had been located, but owing to disputes which arose between the colonies, the commission did not complete its work, and the question remained unsettled until it was taken up anew by an Act of New Jersey of February 18, 1748, by virtue whereof the boundary line between the two provinces was to be drawn in pursuance of the Acts of the two colonies, of 1717 and 1719, if New York consented thereto, and if not, by commissioners on the part of New Jersey. Because of protests on the part of New York, this Act containing a suspending clause which required the approval of the Crown was disallowed by the King in Council upon the recommendation of the Lords of Trade and Plantation dated July 18, 1753. This recommendation, setting forth the proceedings actually had in this case and those which should have been had, is as follows.

In the first place the Board of Trade states that two considerations arise upon the New Jersey act: First, "such as relate to the principles upon which it is founded"; second, "such as relate to the Transactions and Circumstances which accompany it." Under the first heading the Board calls attention to the fact that the act of New Jersey is the attempt of that province to secure the determination of a matter of specific interest to New York and of general interest to the Crown. Thus:

AS to the first, it is an Act of the Province of New Jersey, interested in the Determination of the limits, and in the consequential Advantages to Arise from it.

THE Province of New Jersey in its distinct and separate Capacity can neither make nor Establish for deciding differences between itself and other parties concerned in Interest.

THE Established Limits of its Jurisdiction and Territory are such as the Grants under which it claims have assigned. If those Grants are doubtful and differences Arise upon the Construction or upon the matter of them, We humbly Apprehend that there are but two methods of deciding them, either by the concurrence of all parties Concerned in Interest or by the regular and legal Forms of Judicial proceedings, And it appears to us, that the legal method of proceeding must be derived from the Immediate Authority of the Crown itself, signified by a Commission from your Majesty under the Great Seal the Commission of subordinate officers and of derivative powers being neither Competent nor adequate to such purposes. To judge otherwise would be, as We humble conceive, to set up ex parte Determination and Incompetent Jurisdictions in the place of Justice and legal authority.

1 Report of the Regents of the New York University on the Boundaries of the State of New York, prepared by D. J. Pratt, 1884, Vol. ii, pp. 608, 609.

2 Documents Relating to the Colonial History of New Jersey, ed. Wm. A. Whitehead, 1882, Vol. iv, p. 394. Also, Pratt, Boundaries, Vol. ii, pp. 611-614.

3 New Jersey Laws (Allinson's Compilation), p. 172.

Documents Relating to the Colonial History of New Jersey, ed. Wm. A. Whitehead, 1882, Vol. iii, part 1, pp. 144-150. Also, Pratt, Boundaries, pp. 656–9.

IF THE ACT OF NEW JERSEY cannot conclude other parties, it cannot be Effectual to the Ends proposed: and that it would not be Effectual to Form an absolute Decision in this Case, the Legislature of that province seems Sensible, while it endeavours to leave to your Majestys Determination the Decision of one point relative to this matter and of considerable Importance to it, which proves your Majesty cannot derive from them, without their having the Power to Establish the thing itself without the Assistance of your Majesty.

And for the reasons stated, the Board concludes that "the present Act without the Concurrence of other parties concerned in Interest, is unwarrantable and ineffectual." 1

Under the second heading, the Board of Trade calls attention to the fact that the Crown, on the one hand, and the provinces of New York and New Jersey, on the other, are interested parties, and, as is to be expected, the interest of the Crown is first stated. In the first place the Board mentions that the Crown was not a party to the negotiations and agreements between the two provinces for the settlement of their dispute, and, because of this lack of confirmation, holds that the proceedings are void. In the next place, the interests of the Crown are specifically set forth. Thus:

With regard to the Transactions on the part of New York, We beg leave to observe, that whatever agreements have been made formerly between the two provinces for settling their Boundaries whatever Acts of Assembly have passed, and whatever Commissions have been issued by the respective Governors and Governments the proceedings under them have never been perfected, the work remains unfinished, and the Disputes between the two provinces Subsist with as much Contradiction as ever. But there is a Circumstance which appears to us to have still more weight, namely that those Transactions were never properly warranted on the part of the CROWN: The CROWN never participated in them, and therefore cannot be bound with respect to its Interests by proceedings so authorized.2

In disputes of this kind, the interests of the Crown are said to be threefold: First, of "Sovereignty respecting mere Government;" second, "of Seigneurie which respects Escheats and Quit Rents;" third, "of property as relative to the soil itself, which last Interest takes place in such Cases where either Your Majesty has never made any Grants of the Soil or where such Grants have by Actual Escheats reverted to Your Majesty." On this phase of the subject the Board says:

WITH regard to the first of these Interests viz, that of Sovereignty, it has been alleged to Us in Support of the Act, that it is not materially Affected by the Question, as both provinces are under Your Majestys immediate direction. and Government: But they stand in a very different light with respect to Your Majestys Interests in the Quit Rents and Escheats, in both which articles the Situation of the two provinces appears to us to make a very material alteration. For altho' the province of New Jersey is not under regulations of pro1 Documents Relating to the Colonial History of New Jersey, Vol. viii, part 1, pp. 145-6. 2 Ibid., p. 146.

priety or Charter with respect to its Government, yet it is a proprietary province with respect to the Grant & Tenure of its Territory, and consequently as New York is not in that predicament, the Determination of the Boundary in prejudice to that province will affect your Majestys Interest with respect to the Tenure of such Lands as are concerned in this question, it being evident that whatever Districts are supposed to be Immediately held of Your Majesty in New York, by being Supposed to be Included in the Limits of New Jersey, will Immediately pass to the proprietors of that province and be held of them; by which means Your Majesty would be deprived of your Escheats and the Quit Rents would pass into other Hands.

TO obviate this objection it has been alledged that the Crown has already made absolute Grants of the whole Territory, that can possibly come in Question under the Determination of this Boundary, and reserved only trifling and Inconsiderable Quit Rents on these Grants. But this Argument does not seem to us to be conclusive, since it Admits an Interest in your Majesty, the Greatness or Smallness of which is merely accidental, and therefore does not affect the Essence of the Question, And we beg leave farther to observe, that in the Case of Exorbitant Grants with Inconsiderable Quit Rents and where consequently it may reasonably be Supposed that the Crown has been deceived in Such Grants by its Officers, Your Majestys Contingent Right of property in Vertue of your Seigneurie seems rather to be enlarged than diminished.1

Because of these interests of the Crown, the Board came to the conclusion which would seem to be inevitable in the premises, that neither province should have entered into an agreement with the other, much less have appointed a commission to determine the boundaries without permission in advance and without confirmation of their acts by the Crown. Taking up the question of confirmation the Board observed:

But it has been further urged that the Crown has since Confirmed these Transactions, either by previous Declarations or by Subsequent Acquiescence, and consequently participated in them so far as to conclude itself. We shall therefore in the next place beg leave to Consider the Circumstance Urged for this purpose.

IT has been alledged that the Crown, by giving Consent to the aforesaid Act passed in New York in 1717 for paying and discharging several Debts due from that Colony &c., included and bound itself with respect to the subsequent proceedings had under the Commission issued by Governor Hunter.

In this connection the Board states that the approval of the Act could not be said to be an approval of the commission, for which a small sum of money was appropriated, and the proceedings to be had under it, which could only derive their validity from specific approval in advance and confirmation after completion. It may be that the approval of the act, including this item, justified Governor Hunter in the belief that he was authorized to appoint the commission, inasmuch as the moneys had been appropriated for it, and to enter into negotiations with New Jersey on the basis of the commission. But an 1 Ibid., Vol. viii, part 1, pp. 147-8.