examination of the text of the act, which is a revenue bill of enormous length, in which this clause is an item as difficult to find as is a needle in a haystack, will assuredly cause anybody who consults it not to sit in judgment on the Board of Trade for what might otherwise be considered as an inadvertence, oversight or slip. The Board then takes up and discusses the subsequent approval of an agreement entered into between New York and Connecticut for the settlement of their boundaries, which had been pressed upon its attention as a precedent justifying the present action, regarding which the Lords Commissioners say: WE further beg leave humbly to represent to Your Majesty, that the lines of partition and Division between Your Majestys province of New York and Colony of Connecticut having been run and Ascertained pursuant to the Directions of an Act passed at New York for that purpose in the Year 1719 and Confirmed by his late Majesty in 1723, the Transactions between the said province and Colony upon that occasion have been alledged to be Similar to, and urged as a precedent and even as an approbation of the matter now in Question. But we are humbly of opinion, that the two Cases are materially and essentially different. The Act passed in New York in 1719 for running and Ascertaining the Lines of partition and Division between that Colony and the Colony of Connecticut Recites, "That in the Year 1683 the Governor and "Council of New York and the Governor and Commissioners of Connecticut "did in Council conclude an Agreement concerning the Boundaries of the "two Provinces; that in Consequence of this Agreement Commissioners and "Surveyors were appointed on the part of each Government who did actually agree, Determine and ascertain the Lines of partition, marked out a Certain part of them and fixed the point from whence the remaining parts should "be run, that the several things agreed on and done by the said Commissioners "were ratified by the respective Governors, entered on Record in each Colony, "and in March 1700 approved and Confirmed by order of King William the "third in His privy Council and by his said Majestys Letter to his Governor "of New York." 66 66 From this Recital it Appears to Us that those Transactions were not only carried on with the participation, but Confirmed by the Express Act and Authority of the Crown, and that Confirmation made the foundation of the Act passed by New York for Settling the Boundaries between the two provinces; of all which Authority and Foundation the Act we now lay before your Majesty appears to us to be entirely destitute.1 The New Jersey act, therefore, of 1747-8, was disallowed for the reasons set forth at length before this digression. But the dispute would not down, and, as the initiative of New Jersey had failed, New York passed an act on December 7, 1754,2 by the terms of which the dispute was referred to the adjudication of the Crown, and, on June 12, 1755, the Lords of Trade in an opinion to the Lords Justices, acting as Regents in the absence of the King from England, recommended that this Act be disallowed for the objections stated in the following passage of their recommendation: 1 Documents Relating to the Colonial History of New Jersey. Vol. viii, Part 1, pp. 149–150. 2 Laws of New-York from the 11th Nov. 1752, to 22d May 1762 (1762), Vol. ii, p. 41. It is improper as the method of determination which it proposes is unusual and contrary to the constant practice in cases of the like nature: questions of disputed boundary, whereby private property may be affected, having never been determined by the Crown in the first instance but always by a Commission from his Majety with liberty to all parties which shall think themselves aggrieved by the Judgement of the Commiss, to appeal to His Maj from their decision. It is also improper, because, altho' the very object of the Act is to submit the matter in dispute, as far as private property is concerned, to the determination of His Majty yet, it previously ascertains in some degree the limits of private Right and property, by declaring that certain patentees, therein mentioned shall not extend their claims beyond a limit therein described; and if it was not liable to these objections, yet it would be ineffectual, as the Proprietors of New Jersey, have not consented to the method of decision therein proposed. For all which reasons we humbly beg leave, to lay the said Act before your Excellencies, for your Excellencies disallowance. We beg leave further to represent to your Excellencies, that it appears to us to be of the greatest importance to the peace and tranquility of the two Provinces, that some certain line of property and Jurisdiction should be speedily settled between them, which, as we conceive, can only be done by a Commission to be issued in the same manner and under the same regulations as that issued in the year 1737, for running the boundary between the Provinces of the Massachusetts Bay and New Hampshire, with liberty to either party who shall think themselves aggrieved, to appeal to His Majesty in his Privy Council. The Agent for the Proprietors of New Jersey declared himself willing to concur in this measure, and has offered to give ample security, that the said Proprietors shall and will defray one half of the expence of such a Commission, but the Agent of New York, not being authorised by his Constituents has declined entering into such an agreement. We would therefore humbly propose to your Excellencies, that an additional Instruction be given to His Majty's Gov. of New York directing him to recommend it to the Assembly of that province to make provision for defraying one half of the expence of obtaining and executing such Commission, as aforesaid, whenever his Majty shall be graciously pleased to issue it.1 Owing to the French and Indian War, the New York Assembly felt itself unable to bear its share of the expenses in running the line, and the moneys were not appropriated. However, when the French and Indian War had. practically ended, New York gave its consent by Act of December 11, 1762,2 to the adjustment of the boundary by Royal Commission or otherwise, and agreed to the payment of "one equal Half Part of the Joint Expence to accrue on the final Settlement of the said Controversy, and the Boundary Line between the said Colonies." The Colony of New Jersey by Act of February 23, 1764,3 a year after the Treaty of Peace, did likewise. A commission was substituted for the Crown on October 7, 1767, consisting of thirteen persons chosen from the different 1 Documents Relating to the Colonial History of New Jersey, Vol. viii, Part 2, pp. 109–110. Pursuant to this recommendation the Lords Justices on June 24, 1755, disallowed the Act. Ibid., pp. 114-5; see also Documents Relating to Colonial History of New York, Vol. vi, p. 952. 2 Pratt, Boundaries, Vol. ii, pp. 747-9. 8 Ibid., pp. 750-2. colonies, of whom any five could act. Seven of the Commissioners, with John Jay as Clerk of the Commission, met in the City of New York on July 18, 1769. They were Charles Stewart, Esq., Surveyor General of the Customs for the District of Quebec, President; Andrew Elliot, Esq., Receiver General of Quit Rents in the Province of New York; Samuel Holland, Esq., Surveyor General of Lands for the Northern District of America; Andrew Oliver, Esq., Secretary of the Province of Massachusetts Bay; Charles Morris, Esq., Surveyor of Lands and one of the Council of the Province of Nova Scotia ; and Jared Ingersoll, Esq., of the Colony of Connecticut. After hearing the evidence presented by the colonies in dispute, four of the commissioners, Messrs. Stewart, Oliver, Elliot and Ingersoll, present on October 7, 1769, rendered a majority opinion, and two thereof, Messrs. Holland and Morris, a minority opinion. The text of the majority opinion is not uninteresting in itself, and may well serve as a model of proceedings of this kind: THE AGENTS on the part of both Colonies, having offered to the Court all that they thought necessary or proper in Support of their respective Claims, and the Court having Considered the Same, DO FIND THAT King Charles the Second by his Letters patent bearing date the twelfth day of March, 1664, did Grant and Convey to his Brother the Duke of York, Áll that Tract of Country and Territory now Called the Colonies of New York and New Jersey; and that the said Duke of York afterwards by his Deed of Lease and Release bearing Date the 23d and 24th days of June, 1665, did Grant and Convey to Lord Berkley of Stratton and Sir George Carteret, that part of the Aforesaid Tract of Land Called New Jersey. The Northern Bounds of which in said Deed are described to be "to the northward as far as the Northernmost Branch of the said Bay or River of Delaware which is in 41 deg. 40 min. of Latitude and Crosseth thence in a Straight Line to Hudson's River in 41 deg. of Latitude." We further find amoung the many Exhibits a Certain Map compiled by Nicholas John Vischer, and published not long before the aforesaid Grant from the Duke of York, which we have reason to believe was Esteemed the most Correct Map of that Country at the Time of the said Grant, on which Map is Laid down a Fork or Branching of the River then called Zuydt River or South River now Delaware River in the Latitude of 41 deg. and 40 min., which Branch we Cannot doubt was the Branch in the Deed from the Duke of York called the Northernmost Branch of the said River, and which in the Deed is said to lye in the Latitude of 41 deg. and 40 min. And from a Carefull Comparison of the several Parts and Places Laid down on the said Map, some of which, more Especially towards the Sea Coast and on Hudson's River We have Reason to believe were at that time well Known. The Distance of the said Branch from the Sea Shore on the South, and the Relative situation of the same with regard to other places and the Lines of Latitude as they appear to be laid down on the said Map at that and other places in the Inland County: We are of opinion that the said Branch so laid down on the said Map is the Fork or Branch formed by the Junction of the Stream or Water Called the Mahackamack with the River Called Delaware or Fishkill and that the same is the Branch Intended and referred to in the before mentioned Deed from the Duke of York, as the Northern Station at the River Delaware, which Fork or Branch We find by an observation taken by the Surveyors appointed by the Court, to be in the Latitude of 41 deg. 21 min. and 37 seconds. We are further of opinion that the Northern Station at Hudson's River being by the Words of the Said Deed from the Duke of York, Expressly Limited to the Latitude of 41 deg. should be fixed in that Latitude, which Latitude we have caused to be taken in the best manner by the Surveyors appointed by the Court, and which falls at a Rock on the West Side of Hudson's River marked by the said surveyors, being 79 Chains and 27 Links to the Southward on a Meridian from Sneydon's House, formerly Corbet's. IT IS THEREFORE the final Determination of the Court That the Boundary or Partition Line between the said Colonies of New York and New Jersey be a direct and straight Line from the said Fork at the Mouth of the River Mahackimack in the Latitude of forty-one Degrees twenty-one Minutes and thirty-seven Seconds to Hudson's River at the said Rock in the Latitude of forty-one degrees as above described.1 As to the subsequent proceedings, it is to be said that the New York assembly passed an act on February 16, 1771,2 ratifying the judgment of the Commission, and that New Jersey on its part passed an act September 26, 1772, referring to the act of New York confirming the judgment of the Commission,3 conditioning its acceptance upon the allowance of the New York Act by his Majesty in Council. Therefore on September 1, 1773, the King in Council decreed as follows: Whereas the Governor of His Majesty's Colony of New York, with the Council and Assembly of the said Colony, did in February 1771, pass an act which hath been transmitted in the Words following — Viz'. "An Act for Establishing the Boundary or Partition Line between the Colonies of New York and Nova Caesarea or New Jersey and for Confirming Titles and Possessions." . . . Which Act, together with a Representation from the Lords Commissioners for Trade and Plantations thereupon, having been referred to the Consideration of a Committee of the Lords of His Majesty's most Honorable Privy Council for Plantation Affairs, the said Lords of the Committee did this Day Report as their opinion to His Majesty, that the said Act was proper to be approved His Majesty taking the same into Consideration, was pleased, with the advice of His privy Council, to Declare his approbation of the said act; and pursuant to His Majesty's Royal Pleasure thereupon Expressed, the said Act is hereby Confirmed, finally Enacted and Ratified accordingly -Whereof the Governor Lieutenant, Governor or Commander in Chief of His Majesty's said Colony of New York for the time being, and all others whom it may concern are to take Notice and Govern themselves accordingly.* The case of New York v. New Jersey, the proceedings of which have been stated with considerable fulness, began in negotiation and, through the intervention of the Board of Trade, ended in what may be called judicial de Debt to Justice to the cision. There are, however, two cases, shorter and less detailed, and which, with slight changes in the caption and in the phraseology of the opinion, might properly appear as judgments of the Supreme Court of the United States in the series of cases to which Rhode Island is a party. The first is that of Rhode Island v. Connecticut,1 decided in 1727, in which the boundary between Rhode Island on the west and Connecticut, its more powerful neighbor, was decided; and the second is that of Rhode Island v. Massachusetts, decided in 1746, in which the eastern boundary of Rhode Island was determined in its favor against its stronger and aggressive neighbor to the east. And, without stopping to analyze these cases, models of their kind and of judicial settlement, it may be proper to premise that partisans of judicial settlement are deeply indebted to the litigious little State, not only for these cases but for the seven lawsuits with the State of Massachusetts, decided by the Supreme Court of the United States and to be found in the official reports of that Tribunal, by virtue of which the northern boundary of Rhode Island, and therefore the southern boundary of Massachusetts, was finally determined. If the Atlantic Ocean had not been made the southern boundary of the little State by charter, it would no doubt have instituted a law suit to have that determined, as it did in the western, eastern and northern points of the compass. It thus furnishes, it is believed, the unique example of a State having submitted all disputes concerning its boundary to judicial decision, and thus having its bounds settled and its existence preserved by decree of court. Justice is indeed the shield and buckler of the smaller States, if they did but know it, for Rhode Island would, without the shadow of a doubt, have been swallowed up by Connecticut and Massachusetts had their land hunger not been stayed by the just hand of the judge.3 1 Acts of the Privy Council, Colonial Series, Vol. vi, p. 159, § 344. 2 Ibid., p. 267, § 470. 3 An accurate, industrious and well informed writer has this to say on the settlement of disputes of this kind between the colonies: Boundary disputes between the several colonies were of even more pressing importance than were those with foreign nations. In 1700 none of the colonies had its limits so well defined that it was free from such controversies, and as time went on these questions had to be settled. It was difficult for the interested parties to arrive at a satisfactory agreement without recourse to some outside party: consequently the Board of Trade was the body to which, as a last resort, all these controversies were referred. . . As all settlements of a boundary controversy were, of necessity, ratified by laws passed by the colonial legislature, any such settlement could be invalidated by the action of the Board of Trade. If private individuals were injured in their property interests, they had just grounds for a complaint to the king, and such a complaint would involve the boundary dispute and its settlement. If, on the other hand, the interests of the crown were at stake, it had to be made a party to the settlement or it would refuse to recognize its validity. Thus in either case the question would come before the crown for ratification. . . . "The regular method of procedure in settling a dispute was to secure the appointment of a royal commission. All the important boundary controversies, such as those between North Carolina and Virginia [The commissions for settling this boundary were joint tribunals, appointed partly by the crown and partly by the proprietaries. See: North Carolina Colonial Records, vol. i, 703, 716, 735, 750, vol. iii, 12, 17.], North and South Carolina [Ibid. vol. iv, 28.], New York and Massachusetts [Proposed but not carried into execution. See: Pratt's Boundaries of New York vol. ii, 88-225.], and the latter province and New Hampshire [Com |