was reduced to thirteen. After this, upon motion from the delegates of South Carolina, the thirteen names were put in a box and the following nine were drawn out in the presence of Congress: Alexander Contee Hanson, James Madison, Robert Goldsborough, James Duane, Philemon Dickinson, John Dickinson, Thomas McKean, Egbert Benson and William Pynchon.1 The next day the delegates of Georgia moved that the court be held at the City of New York on the first Monday of May, 1787. The delegates from South Carolina proposed to substitute for this date the third Monday of November of the current year. The amendment failed, and the court was therefore directed to meet as proposed by the State of Georgia.2 The membership.of this court was certainly such as to satisfy the most exacting requirements. It contained, as did the court in the case of Massachusetts v. New York, the name of a future president, and the gentleman who can in all probability be considered as the father of the Constitution, James Madison; John Dickinson, a member of the Continental Congress, who had refused to sign the Declaration of Independence because he believed it was inexpedient at the time and under the circumstances, but who enlisted and served as a private in the army after the Declaration had been proclaimed, who drafted the Articles of Confederation under which the proceeding was to take place, and who later was an influential member of the Constitutional Convention; Thomas McKean, Chief Justice of the Supreme Court of Pennsylvania and Governor of that State; Egbert Benson, Attorney General of New York, later a Justice of the Supreme Court of the State and a judge of the Circuit Court of the United States. The court, however, seems not to have met, and the difference was settled by compact between the States dated February 24, 1787, as appears from the first and second articles thereof, to be found in the case of South Carolina v. Georgia, recorded in 93 United States Reports, pp. 5-6. These are, so far as known, the only cases of dispute between the States. which were submitted, or prepared for submission, to temporary tribunals appointed according to the provisions of the ninth of the Articles of Confederation. In the first case, that of Pennsylvania v. Connecticut, the court was appointed by consent of the parties and rendered judgment. In the second, that of Massachusetts v. New York, a court was indeed appointed by consent of the parties, in accordance with the provisions of the ninth article, but the controversy was settled out of court. In the case of South Carolina v. Georgia a court was also appointed under the ninth article, but as the agents were unable to agree upon the commissioners or judges, they were chosen by the method 1 Ibid., p. 696. 2 Ibid., p. 697. Significance of the Temporary Tribunals Other Dispute the Existence of the ninth article, devised to enable a court to be constituted when the States in controversy were unable to agree upon its composition. We thus have, in these three cases, a demonstration of the possibilities of peaceable settlement: first, where the parties agree upon the court, which actually renders a decision; second, where the parties, knowing that the controversy is to be settled by the court, reach an agreement, which appears to have been impossible without the existence of the court; and third, where the court has been constituted without the agreement of the parties, according to a method known in advance and, as in the previous case, an agreement is reached because of the existence of the tribunal and without recourse to its judgment. In three other cases the action of Congress was invoked, namely, the controversy between New Hampshire and Vermont, New York and Vermont, and Massachusetts and Vermont,' arising out of the so-called New Hampshire grants; the case of Pennsylvania v. Virginia2 and the case of New Jersey v. Virginia. In no one of these was a court appointed, but as they are interesting because of the reference to Congress, they will be briefly mentioned, in order that all known cases under the ninth article may be noted. The case of the New Hampshire grants is very complicated, and it is referred to largely as showing the solicitude of the Congress, as the successor of the King in Council, that a dispute involving three States and a claimant to statehood should be peaceably settled. It is also referred to, as showing the impracticability if not futility of supposing that a community would submit to the arbitrament of a temporary tribunal the question of its existence or right to exist, for the statehood of Vermont hung in the balance. New York claimed to the Connecticut River. In 1750, as recorded by the historian Bancroft, "New York carried its claims to the Connecticut river; France, which had command of Lake Champlain, extended her pretensions to the crest of the Green Mountains; while Wentworth, the only royal governor in New England, began to convey the soil between the Connecticut and Lake Champlain by grants under the seal of New Hampshire." These grants are therefore known as the New Hampshire grants. In 1764 the King in Council, according to the same historian, "dismembered New Hampshire, and annexed to New York the country north of Massachusetts and west of Connecticut river. The decision was declaratory of the boundary; and it was therefore held by the royalists that the grants made under the sanction of the royal governor of New Hampshire were annulled." 5 However, the towns and villages in dispute were settled largely by New Englanders 1131 U. S., Appendix, p. 1. 2 Ibid., p. liii. 3 Ibid., p. lviii. 4 George Bancroft, History of the United States of America, 1883 ed., Vol. ii, p. 361. Ibid., Vol. iii, p. 87. under the New Hampshire grants. In 1775, again to quote Bancroft, "the court of common pleas was to be opened by the royal judges in what was called the New York county of Cumberland, at Westminster, in the New Hampshire Grants, on the eastern side of the Green Mountains. To prevent this assertion of the jurisdiction of New York and of the authority of the king, a body of young men from the neighboring farms on the thirteenth of March took possession of the court-house. The royal sheriff, who, against the wish of the judges, had raised sixty men armed with guns and bludgeons, demanded possession of the building; and, after reading the riot act and refusing to concede terms, late in the night ordered his party to fire. . . . The act closed the supremacy of the king and of New York to the east of Lake Champlain." The settlers of the Green Mountains organized themselves as a State, under the name of Vermont, and in convention on the 15th day of January, 1777,2 declared their independence of New York. In the following July a convention assembled at Windsor, adopted a constitution, which was accepted by the legislature and declared to be a part of the laws of the State.3 It is clear from this brief statement that Massachusetts was not vitally interested, as the land lay to the north of its territory under the charter. It is clear that New York was vitally interested, as, if its contention were allowed, it would receive a very considerable extension of desirable territory. It is also evident that New Hampshire was even more interested because, if the contention of New York were granted, or if the settlers in Vermont.had their way, the authorities of New Hampshire would lose title to a territory which they had possessed and which they naturally sought to retain. Finally, the settlers of Vermont were or were not a State, according as the case turned out. A secret agreement between New York and New Hampshire to divide the territory in dispute did not result as anticipated by the two conspirators, owing to the resistance and the determination of " the Green Mountain boys," who showed their mettle by the defeat of the Hessians belonging to Burgoyne's army at the battle of Bennington. Unable to reach a settlement by direct negotiation, or even by secret agreement providing for dismemberment, New York bethought itself of the Congress, doubtless hoping that from the successor of the King in Council it would obtain a confirmation of title to the territory it had acquired by the decision of the King in Council in 1764.* On May 22, 1779, the day on which the petition from the merchants and citizens of Philadelphia had been read to provide a court of appeals in prize cases, the delegates of New York in the Congress moved a series of resolutions relating to the controversy.1 On September 24th of that year it was "Resolved, unanimously, That it be, and hereby is, most earnestly recommended to the states of New Hampshire, Massachusetts Bay, and New York, forthwith to pass laws expressly authorizing Congress to hear and determine all differences between them relative to their respective boundaries, in the mode prescribed by the articles of confederation, so that Congress may proceed thereon by the first day of February next at the farthest: and further, that the said states of New Hampshire, Massachusetts Bay, and New York, do, by express laws for the purpose, refer to the decision of Congress all differences or disputes relative to jurisdiction, which they may respectively have with the people of the district aforesaid, so that Congress may proceed thereon on the first day of February next." 2 It was necessary for Congress to proffer such a request, inasmuch as it did not possess the authority to form a committee by "striking," at the request of the State of New York, because the Articles of Confederation were not then the law of the land. If they had been in effect, the situation would have been wholly different. 3 On October 2, 1779, the States were again urged "to authorize Congress to proceed to hear and determine all disputes subsisting between the grantees of the several states aforesaid, with one another, or with either of the said states, respecting title to lands lying in the said district, to be heard and determined by commissioners or judges,' to be appointed in the mode prescribed by the ninth article." New York, having everything to gain, and New Hampshire, hoping to regain what would be lost either to New York or the people of Vermont if its contention were not sustained, enacted the necessary legislation. Massachusetts, as above stated, had no real interest in the question, but the people of Vermont had to be reckoned with, and having organized themselves as a State, they were unwilling to have what they considered their lands voted away by acts of the legislatures of the claimant States, or by act of Congress. Their opposition undoubtedly prevented the appointment of a court, for none was constituted, and although, in the month of September, 1780, agents of New York laid their case before Congress, claiming that from 1764 to 1777 the people of the territory in dispute were represented in the legislature of New York and submitted to its authority, although the agents of New Hampshire, in the same month, presented its case to the Congress, maintaining that the tract lay within the limits of New Hampshire and that 1 Journals of the Continental Congress, Vol. xiv, pp. 631–3. 2 Ibid., Vol. xv, pp. 1096-7. 3 Ibid., p. 1135. 4 Act of New York, Oct. 21, 1779. Papers of the Continental Congress, No. 40, I; folio 269; Act of New Hampshire, November, 1779, folio 563. 5 Journals, Vol. xviii, pp. 841, 843. Sessions of September 19 and 20, 1780. • Ibid., p. 868. Session of September 27, 1780. the people inhabiting it had no right to a separate and independent existence, the Congress did not, because it could not, take action. The case had ceased, by the action of the settlers of Vermont, to be one of law, it had become one of force; it was no longer a matter for the courts; it had become a political instead of a judicial question. The only solution compatible with peaceful settlement was apparently the recognition of the independent statehood of the settlers. This Massachusetts and New Hampshire did in 1781 and New York in 1790, and the controversy was settled in the end, as it should have been and was foredoomed to be settled in the beginning, by the admission of Vermont as a State of the American Union on February 18, 1791.1 While the reasons for the failure of the Congress to appoint a court can be deduced from the mere statement of the facts, we nevertheless have them stated by a contemporary, whose word carries great weight. Thus, Alexander Hamilton wrote in The Federalist: Those who had an opportunity of seeing the inside of the transactions, which attended the progress of the controversy between this state [New York] and the district of Vermont, can vouch the opposition we experienced, as well from states not interested, as from those which were interested in the claim; and can attest the danger to which the peace of the confederacy might have been exposed, had this state attempted to assert its rights by force. . New-Jersy and Rode-Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, until alarmed by the appearance of a connection between Canada and that place, entered deeply into the same views.2 Pennsylvania On December 27, 1779, the following entry in the Journals of Congress shows that a dispute had arisen between Pennsylvania and Virginia, and the action which the Congress, as the apparent successor of the King in Council v. Virginia thought should be taken: Whereas it appears to Congress, from the representation of the delegates of the State of Pensylvania, that disputes have arisen between the states of Pensylvania and Virginia, relative to the extent of their boundaries, which may probably be productive of serious evils to both states, and tend to lessen their exertions in the common cause: therefore, Resolved, That it be recommended to the contending parties not to grant any part of the disputed land, or to disturb the possession of any persons living thereon, and to avoid every appearance of force until the dispute can be amicably settled by both states, or brought to a just decision by the intervention of Congress; that possessions forcibly taken be restored to the original possessors, and things placed in the situation in which they were at the commencement of the present war, without prejudice to the claims of either party.3 11 Stat., 191. 2 The Federalist, 1802 ed., Vol. i, pp. 36-7. Paper vii. |