XXV. The adjusting of all matters in dispute shall be referred to the arbitration of Dr. Walter Walker, John Crowther, Dr. Jeronimus a Silva, secretary of the embassy, and Francis Ferreira Rabello, agent thereof, who shall sit at London the 20th of July next, O. S. who shall deliver their sentence on or before the first day of September next. And the same being then undetermined, shall afterwards be referred entirely to the Protector's consul, whose award shall be final and decisive: and what shall on their decree be found justly due, shall be paid by an allowance or remittance of one moiety of the duties usually paid until the sum awarded be fully satisfied.

The three last articles are general confirmations of the previous particulars, and limits the ratification to six months. (Treaty of Peace and Alliance between Oliver Cromwell, Protector of England, and John IV. King of Portugal, made at Westminster, July 10, 1654, Charles Jenkinson, A Collection of all the Treaties of Peace, Alliance, and Commerce, between Great-Britain and other Powers, From the Treaty signed at Munster in 1648, to the Treaties signed at Paris in 1783, Vol. I, 1785, pp. 74-75.)

XXIV. Whereas since the year 1640 many prizes have been taken on both sides, commissioners shall be appointed to settle the same at London, and if they do not determine in six months and a fortnight, the city of Hamburg shall be desired to delegate commissioners. whose arbitration shall be final, and their award made within four months; but if neither shall make an award, no force shall be used on either side until after the expiration of four months more.

XXV. The right of either to the three forts of Pentacost, St. John, and Port Royal in America, shall be determined by the same commissioners. (Treaty of Peace between Louis XIV. King of France and Navarre, and the Lord Protector of the Republic of England, Scotland, and Ireland, at Westminster, November 3, 1655, Charles Jenkinson, A Collection of all the Treaties of Peace, Alliance, and Commerce, between Great-Britain_and Other Powers, from the Treaty signed at Munster in 1648, to the Treaties signed at Paris in 1783, Vol. I, 1785, pp. 84-85.)

VII. Relates to the manner of adjusting differences and captures of either side, according to the tenor of the XIIIth article of the treaty of Upsal, and is only a repetition thereof, and an agreement, in case of the same not being affected for a future convention. (Treaty between Charles Gustavus. King of Sweden, and Oliver Cromwell, Protector of England, whereby the Treaty of Alliance made between the said States, April 11, 1654, is confirmed and explained. Done at Westminster, July 15th, and the Convention annexed July 17, 1656. Charles Jenkinson, A Collection of all the Treaties of Peace, Alliance, and Commerce between Great-Britain and other Powers, from the Treaty signed at Munster in 1648, to the Treaties signed at Paris in 1783, Vol. I, 1785, p. 99.)

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other State in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they can not agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the numbers shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each State, and the Secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive, the judgment or sentence and other proceedings being in either case transmitted to Congress, and lodged among the acts of Congress for the security of the parties concerned: provided that every

commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the State where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, affection or hope of reward:" provided also that no State shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more States, whose jurisdiction as they may respect such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States. (Articles of Confederation, 1777, Article IX, paragraph 2. Revised Statutes of the United States, 1878, pp. 9-10.)

The agents attending, the Court pronounced the following sentence or judgment:
This cause has been well argued by the learned counsel on both sides.

The court are now to pronounce their sentence or judgment.

We are unanimously of opinion, that the state of Connecticut has no right to the lands in controversy.

We are also unanimously of opinion, that the jurisdiction and pre-emption of all the territory lying within the charter boundary of Pennsylvania, and now claimed by the state of Connecticut, do of right belong to the state of Pennsylvania. (State of Pennsylvania v. State of Connecticut, Court of Commissioners Under 9th of Articles of Confederation, Journals of the American Congress, edition of 1823, Vol. IV, p. 140, decided December 30, 1782.)

The great cause between Connecticut and Pennsylvania has been decided in favor of the latter. It is a singular event. There are few instances of independent states submitting their cause to a court of justice. The day will come when all disputes in the great republic of Europe will be tried in the same way, and America be quoted to exemplify the wisdom of the measure. (Extract from letter of Robert R. Livingston, Secretary of Foreign Affairs, to La Fayette, January 10, 1783. Francis Wharton, The Revolutionary Diplomatic Correspondence of the United States, Vol. VI, 1889, p. 202.)

CHAPTER XI

TEMPORARY JUDICIAL COMMISSIONS

BUT the Court of Prize was neither the most interesting nor the most important judicial organization, either for the people of the United States or for the world at large. But it was one of the origins of the Supreme Court. The other origin which is likely to prove further that the Revolutionary statesmen, as well as the fathers of the Constitution, were benefactors of their kind, was the machinery devised for the adjustment of quarrels between the States bv means of temporary commissions:

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other cause whatsoever; . . .

of the

All controversies concerning the private right of soil claimed under differ- Nature ent grants of two or more States, whose jurisdictions as they may respect Commissions such lands, and the States which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States.1

The Articles of Confederation apparently considered the Congress as the successor of the King in Council. They authorized it therefore to direct the agents of the States in controversy to appoint commissioners or judges to constitute a court for hearing and determining the matter in question. Failing their agreement, Congress was authorized to "name three persons out of each of the United States," that is to say, thirty-nine in all, from which list the agents of the parties, beginning with the defendant, should alternately strike a name until thirteen were left, from which seven or nine, in the direction of Congress, should be drawn by lot, of whom the persons whose names were drawn, or any five of them, should be commissioners or judges of the commission charged with the determination of the dispute. Upon the absence of one or the other party, or the refusal of one of the parties present "to strike," the secretary of the Congress was to strike in lieu thereof and the commissioners were thereupon to be selected in the manner above 1 Article IX, Articles of Confederation, 1777.

Influence of Privy

Council

described. The commissioners thus appointed formed the court which was to assume jurisdiction of the dispute, even although one party or the other might refuse to submit the case or appear or defend the claim. The court thus constituted was to proceed to pronounce final sentence or judgment, which, together with the other proceedings, was to be transmitted to the Congress and by it filed for the security of the parties concerned. Each commissioner was to take an oath before a court of record in the State in which the cause was to be tried, to decide the controversy "according to the best of his judgment, without favor, affection, or hope of reward." And no State was to be "deprived of territory for the benefit of the United States."

It was natural that the States which, as has been pointed out, had renounced the right to enter into compacts and to conclude agreements, which maintained armaments merely for defensive purposes, and which had renounced the right to resort to war against one another, should have found it necessary to devise a method of settling the disputes which had frequently arisen between and among them, and which were certain to arise again in the matter of boundaries. It was also natural that the Congress should take advantage of this certainty to provide a method for settling boundary disputes which might arise between the States. It was further natural that they should adopt the method of the Privy Council, which either settled the disputes itself or referred them to committees or to courts, as the case might be, and that the States should adapt the machinery at hand to their own circumstances and needs. Professor Jameson has called attention to the striking resemblance between the method of the Articles of Confederation and that devised by Grenville's Act of 1770 for the trial of disputed elections. His language is so in point, and is so capable of a larger application, that it is quoted in full:

It seems obvious that we have here a reproduction of the machinery provided by Mr. Grenville's famous Act of 1770 for the trial of disputed elections to the House of Commons. Up to that time, disputed elections had for nearly a century been passed upon by the whole House. The natural result of such a procedure was a scandalous disregard of justice, those contestants who belonged to the majority party being uniformly admitted, their competitors as uniformly rejected. To remedy this abuse, Mr. Grenville's act provided that forty-nine members should be chosen by ballot, and that from this list the petitioner and the sitting member should strike out names alternately until the number was reduced to thirteen,- a process which later became known, in the slang of the House, as "knocking out the brains of the committee," each contestant excluding any able man likely to assist the cause of his opponent. These thirteen, with an additional member nominated by each contestant, constituted the authoritative tribunal. The act, celebrated at the time, was of course perfectly well known to lawyers in America six years after its passage. It seems plain that, with the natural substitution of thirty-nine for forty-nine, we have, in this peculiar process established shortly before in England, the model on which Congress framed its scheme for con

stituting temporarily a judiciary body when one was required for land disputes.1

The history of the proceedings under this portion of the ninth Article of Confederation is quickly told. One commission or court was constituted by the agents of the parties under the article, and this commission decided the one case which the article has to its credit. A temporary tribunal was formed in three additional instances, in one of which the agents of the parties were unable to agree upon the personnel, and resort was therefore had to the method of striking provided by the article.2 In these three instances the cases were settled out of court by the parties themselves. Petitions to form tribunals were presented to Congress in other cases, but no courts were created, and upon the dissolution of the Confederation some eleven boundary disputes were outstanding and unsettled. The one cause actually decided by commissioners or judges in the manner provided by the ninth article, is, however, a very famous case, in which blood had flowed, which of itself was sufficient to show the disadvantages of the old method, or rather of no method, and the possibilities of the new system.

v. Connecticut

Upon the signature of the Articles of Confederation by Maryland on the Pennsylvania 1st day of March, 1781, they became the law of the land, and shortly thereafter Pennsylvania took advantage of the ninth of the articles in order to settle a dispute with Connecticut concerning a large strip of territory on the east bank of the Susquehanna River, and which today forms the County of Luzerne in the State of Pennsylvania. As the matter is thus important, and the details of the procedure interesting, some relevant passages are quoted from the documents in this case. The Journal of Congress on November 3, 1781, contains the following entry:

A petition from the supreme executive council of the Commonwealth of Pensylvania was read, stating a matter of dispute between the said State and the State of Connecticut, respecting sundry lands lying on the east branch of the River Susquehanna, and praying a hearing in the premises, agreeably to the 9th article of the Confederation.

On the 14th of the same month, Congress assigned the fourth Monday in the following June for the appearance of the States by their lawful agents, and issued notice thereof in the following form to the States in controversy:

To the legislative authority of the State of Connecticut [Pennsylvania]:

1 J. Franklin Jameson, Essays in the Constitutional History of the United States, pp. 44-5.

2 J. C. Bancroft Davis, Federal Courts Prior to the Adoption of the Constitution, 131 U. S., Appendix, p. lxiii.

3 Ibid., p. xxxiv.

4 Journals of the Continental Congress, Vol. xxi, p. 1092.