On March 14, 1681, a charter was granted to William Penn of the tract of territory now known as Pennsylvania in honor of its first proprietor, including, as claimed by Penn, the three lower counties now known as and forming the State of Delaware. The territory was, according to the charter, "bounded on the East by Delaware River, from twelve Miles Distance Northwards of Newcastle Town unto the three-and-fortieth Degree of Northern Latitude, if the said River doth extend so far Northward; but if the said River shall not extend so far Northward, then by the said River so far as it doth extend; and from the Head of the said River, the Eastern Bounds are to be determined by a Meridian Line, to be drawn from the Head of the said River unto the said Forty-third Degree. The said Land to extend Westward five Degrees in Longitude, to be computed from the said Eastern Bounds; and the said Lands to be bounded on the North by the Beginning of the Three-and-fortieth Degree of Northern Latitude, and on the South by a Circle drawn at twelve Miles Distance from Newcastle Northward, and Westward unto the Beginning of the Fortieth Degree of Northern Latitude, and then by a straight Line Westward to the Limits of Longitude, above-mentioned." 1 It will be observed that this grant does not include the town of Newcastle but begins at a point twelve miles to the north thereof. It thus excluded the three lower counties, or, in short, the State of Delaware. William Penn's claim to Delaware is based upon subsequent transactions. On August 24, 1682, he purchased a quit claim from the Duke of York to the lands west of the Delaware River embraced in the grant of Charles II of March 12, 1664, to James, Duke of York, and the confirmation of that grant by letters patent dated June 29, 1674, from Charles II to his brother, the Duke of York. To the laymen it would appear that Pennsylvania could not extend below 40° North Latitude, inasmuch as the province of Maryland was declared by its charter of 1632 to extend to that point, and that degree of latitude was likewise declared to be its northern boundary. It is true that the grant of Charles II to his brother, the Duke of York, of "all the main land of New England . . . and all the land from the west side of Connectiunderwritten (that is to say) passing from the said Bay, called Delaware Bay, in a right Line, by the Degree aforesaid, unto the true meridian of the first Fountain of the River of Pattowmack, thence verging towards the South, unto the further Bank of the said River, and following the same on the West and South, unto a certain Place called Cinquack, situate near the Mouth of the said River, where it disembogues into the aforesaid Bay of Chesapeake, and thence by the shortest Line unto the aforesaid Promontory or Place, called Watkin's Point; so that the whole tract of land, divided by the Line aforesaid, between the main Ocean and Watkin's Point, unto the Promontory called Cape Charles, and every the Appendages thereof, may entirely remain excepted for ever to US, our Heirs and Successors." F. N. Thorpe, The Federal and State Constitutions, Colonial Laws, etc. of the United States, 1909, Vol. iii, p. 1678. 1 The Charters and Acts of Assembly of the Province of Pennsylvania, 1762, Vol. i, p. 1. cut to ye east side of Delaware Bay, confirmed by the letters patent of 1674," included Delaware, or was claimed to do so. Penn was anxious to secure the tract of land from his little city of Philadelphia on the Delaware River, and through which the fortieth degree of north latitude ran, to the mouth of the Delaware Bay, some ninety miles to the south, and he took care to purchase and acquire the title to this tract claimed by the Duke of York under the two grants in question. On the other hand, the proprietor of Maryland was anxious to have his province extend to the fortieth degree of north latitude and be bounded on the north throughout its entire extent by that parallel of latitude. Lord Here was a dispute involving a vast domain, claimed by Lord Baltimore Penn v. under a charter of 1632 granted by Charles I, to which William Penn laid Baltimore claim under a charter granted by Charles II in 1664. The title of the son was preferred to that of the father, contrary to the time honored maxim of the law, prior in tempore, potior in jure. The Duke of York appears to have doubted his title to the three lower counties, or at least thought it well to have whatever cloud there might be upon his title cleared up. He therefore applied to his royal brother, Charles II, for the grant of the counties, which appears to have been made, and which would inure to Penn's benefit, although it might have been and was contended that the grant to the Duke of York subsequent to his sale and conveyance of the same territory to Penn was an evasion, that the title was not, at the time of the earlier transaction, in the Duke, and that therefore it could not pass to his grantee. When the news of the proposed grant of the lower counties to the Duke of York became known to Lord Baltimore, he prayed that it should not be made, in that the territory in question was comprised within his province. Baltimore's petition was referred to the Lords Commissioners for Trade and Plantations, who, under date of November 13, 1685, reported that, “Having examined the matters in difference between the Lord Baltimore and William Penn, Esq., on behalf of His then Majesty, concerning a tract of land called Delaware, they found the land intended to be granted to Lord Baltimore was only lands uncultivated, and inhabited by savages; and that the tract of land then in dispute, was inhabited and planted by Christians at and before the date of the Lord Baltimore's patent, as it had ever been since, to that time, and continued as a distinct colony, from Maryland, so that their Lordships humbly offered their opinion, that for avoiding further differences, the tract of land lying between the river and the eastern sea, on the one side, and Chesapeake Bay on the other, be divided into equal parts, by a line from the latitude of Cape Henlopen to the 40th degree of northern latitude; and that one-half thereof, lying towards the bay of Delaware and the eastern sea, be adjudged to belong to his Majesty, and the other half to Lord Baltimore." 1 This report His Majesty approved, it was also affirmed in 1709 by Queen Anne in Council, and by this interpretation of the grants in question Penn would acquire that part of the three counties bordering on the Delaware River and the ocean as far south as Cape Henlopen, and Lord Baltimore the western half thereof. The boundaries, however, would remain to be run and marked, and, after much delay, an agreement was entered into, dated May 10, 1732, between Penn's sons, on the one hand, and the then Lord Baltimore, on the other, providing for the determination of the line by commissioners on or before Christmas, 1733. The line, however, was not drawn before the expiration of this time. The Penns thereupon petitioned the Privy Council to have the agreement executed, but the Committee for Hearing Appeals from the Plantations recommended, on May 10, 1735, "that the Consideration of the said Report and Petitions should be adjourned until the end of Michaelmass Term next in Order to give an Opportunity to the said John Thomas and Richard Penn to proceed in a Court of Equity to obtain relief upon the said Articles of Agreement so insisted upon by them according as they shall be advised." 2 Therefore the Penns filed their bill in equity on June 21, 1731, for the specific performance of the articles of the agreement. 3 In 1745 Lord Chancellor Hardwicke, before whom the case was heard, thought the bill should be amended by making the Attorney General a party on behalf of the Crown. As amended, the bill was heard and, in 1750, the specific performance of the articles of agreement was decreed by Lord Hardwicke. For present purposes it is sufficient to say that the plea to the jurisdiction of the court taken by Lord Baltimore was overruled, and properly, for although the lands lay beyond the jurisdiction of the court, the parties plaintiff and defendant were before it, and as equity acts in personem they could properly be, and they were ordered in England to perform the act in America. This is, however, a matter of equity practice and procedure. The important point for us is that the Privy Council refused to assume jurisdiction, and, by means of commissions, to determine the boundaries in dispute, since there was an agreement between the parties on the very question, enforcible in equity. There was no need to resort to the King in Council, because the parties had their day in court. The question was therefore settled, upon 1 Chalmers, Opinions of Eminent Lawyers, pp. 86-7. 2 Acts of the Privy Council, Colonial Series, Vol. iii, p. 336. 3 Penn. v. Lord Baltimore (Ridgeway temp. Hardwicke, 332; Reprint, English Reports, Vol. 27, p. 1132). 4 Penn. v. Lord Baltimore (1 Vesey Sr., 444). great deliberation, by the first of English Chancellors, that boundaries between provinces as large as kingdoms did not need to be settled by force of arms; that disputes of this nature were susceptible of judicial determination, and that an agreement to settle the dispute and to draw the boundaries in a particular manner made the question judicial, to be passed upon in a court of justice, although it might have been considered political, in the absence of an agreement, and as such been passed upon by the King in Council. A Political The case of Penn v. Lord Baltimore was, therefore, a precedent for the framers of the Constitution, clearly pointing out that political questions would Justiciable become justiciable by an agreement to settle them, which, when made, could be interpreted and carried into execution by a court of justice. It was quoted as such in the leading case of Rhode Island v. Massachusetts (12 Peters, 657), decided in 1838, in which decision the distinction here taken was announced, and the procedure before the King in Council recognized as a precedent for investing the Supreme Court with jurisdiction of controversies between States. More recently Chief Justice White, in delivering the opinion of the court in Virginia v. West Virginia (246 U. S., 565, 597),1 decided in 1918, thus referred to the case of Rhode Island v. Massachusetts and the proceedings in the Privy Council as a precedent, and gave to each, as such, the stamp of his approval: Bound by a common allegiance and absolutely controlled in their exterior relations by the mother country, the colonies before the Revolution were yet as regards each other practically independent, that is, distinct one from the other. Their common intercourse, more or less frequent, the contiguity of their boundaries, their conflicting claims, in many instances, of authority over undefined and outlying territory, of necessity brought about conflicting contentions between them. As these contentions became more and more irritating, if not seriously acute, the necessity for the creation of some means of settling them became more and more urgent, if physical conflict was to be avoided. And for this reason, it is to be assumed, it early came to pass that differences between the colonies were taken to the Privy Council for settlement and were there considered and passed upon during a long period of years, the sanction afforded to the conclusions of that body being the entire power of the realm, whether exerted through the medium of a royal decree or legislation by Parliament. This power, it is undoubtedly true, was principally called into play in cases of disputed boundary, but that it was applied also to the complaint of an individual against a colony concerning the wrongful possession of property by the colony alleged to belong to him, is not disputed. This general situation as to the disputes between the colonies and the power to dispose of them by the Privy Council was stated in Rhode Island v. Massachusetts, 12 Pet. 657, 739, et seq., and will be found reviewed in the authorities referred to in the margin. When the Revolution came and the relations with the mother country were severed, indisputably controversies between some of the colonies, of the greatest moment to them, had been submitted to the Privy Council and were 1 Also Scott, Judicial Settlement, Vol. ii, pp. 1751-73. undetermined. The necessity for their consideration and solution was obviously not obscured by the struggle for independence which ensued, for, by the Ninth of the Articles of Confederation, an attempt to provide for them as well as for future controversies was made. Without going into detail it suffices to say that that article in express terms declared the Congress to be the final arbiter of controversies between the States and provided machinery for bringing into play a tribunal which had power to decide the same. That these powers were exerted concerning controversies between the States of the most serious character again cannot be disputed. But the mechanism devised for their solution proved unavailing because of a want of power in Congress to enforce the findings of the body charged with their solution, a deficiency of power which was generic, because resulting from the limited authority over the States conferred by the Articles of Confederation on Congress as to every subject. That this absence of power to control the governmental attributes of the States, for the purpose of enforcing findings concerning disputes between them, gave rise to the most serious consequences, and brought the States to the very verge of physical struggle, and resulted in the shedding of blood and would, if it had not been for the adoption of the Constitution of the United States, it may be reasonably assumed, have rendered nugatory the great results of the Revolution, is known of all and will be found stated in the authoritative works on the history of the time. The views of the Chief Justice can not be gainsaid. If, however, contemporary exposition is preferred, as to the nature, function and rôle of the Privy Council in the administration of justice and the maintenance of order upon the basis of law, it is at hand, for in the seventeenth article of the Constitution of Delaware, adopted on Friday, September 20, 1776, by the three lower counties of Pennsylvania, forming "The Delaware State," as it was then called, it is provided that: "There shall be an appeal from the supreme court of Delaware in matters of law and equity, to a court of seven persons, to consist of the president for the time being, who shall preside therein, and six others, to be appointed, three by the legislative council, and three by the house of assembly, who shall continue in office during good behaviour, and be commissioned by the president under the great seal; which court shall be stiled, The Court of Appeals, and have all the authority and powers heretofore given by law in the last resort to the king in council, under the old government.' 1 The Constitutions of the Several Independent States of America, 1781, p. 111. |