It is hereby made known, that pursuant to the ninth article of the Confederation, the supreme executive council of the State of Pensylvania, have presented a petition to Congress, stating that a controversy has long subsisted between the said State of Pensylvania, and the State of Connecticut, respecting sundry lands lying within the northern boundary of the said State of Pensylvania, and praying for a hearing in pursuance of the ninth article of the Confederation; and that the 4th Monday in June next, is assigned for the appearance of the said States of Pensylvania and Connecticut, by their lawful agents, at the place in which Congress shall then sit, to proceed in the premises as by the said Confederation is directed.1 On the appointed day the States appeared by their agents: for Pennsylvania, Messrs. William Bradford, Joseph Reed, James Wilson and Jonathan Dickinson Sergeant, and their credentials were spread upon the Journal.2 For Connecticut, Eliphalet Dyer appeared and presented credentials, likewise spread upon the Journal, showing the appointment as duly accredited agents of that State, Messrs. Eliphalet Dyer, William Samuel Johnson and Jesse Root. On June 27th Connecticut moved to postpone the proceedings until "after the termination of the present war." This motion was denied. On the 16th of July the agents of the two States were directed "to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question, agreeably to the 9th Article of the Confederation." The agents complied with this direction and, on August 12th, Congress was informed by a paper signed by the agents of the contending States, and spread upon the Journal, that they had agreed upon William Whipple of New Hampshire, Major General Nathaniel Greene of Rhode Island, David Brearley and William Churchill Houston of New Jersey, Cyrus Griffin and Joseph Jones of Virginia, and John Rutledge of South Carolina, any five or more of whom were to constitute the court and to have authority to proceed and to determine the matter and difference between the States." It was further agreed by and between the agents of the litigating States that the court should assemble at Trenton, N. J., on the 12th day of November." On August 23, 1782, the agents reported to Congress that General Greene could not attend, that Mr. Rutledge had declined, and that they had therefore chosen Thomas Neilson of Virginia and Welcome Arnold of Rhode Island in their stead. Congress thereupon directed commissions to issue to the judges according to the amended list, and on the 28th of the same month the form of commission was settled and spread upon the Journal. 1 Journals of the Continental Congress, Vol. xxi, p. 1116. 2 Ibid., Vol. xxii, p. 345. Session of June 24, 1782. 3 Ibid., p. 347. * Ibid., p. 355. 5 Ibid., p. 392. Ibid., Vol. xxiii, p. 461. 7 Ibid., p. 529. Session of August 23, 1782. 8 Ibid., p. 533. It was finally agreed by and between the parties litigant that the court should assemble at Trenton, N. J., on the 12th of November of the same year. The court convened on the day assigned, November 12th, at Trenton, with only Messrs. Brearley and Houston present.1 They adjourned from day to day to the 18th, when enough members being present, the court was organized, with Messrs. Whipple, Arnold, Brearley, Houston and Griffin in attendance as members. On the 22d of the month the agents on each side put in a written brief, showing the claims of their respective States, based in each case upon charters from the mother country. We have the word of the commissioners that the case was equally well argued on both sides, and we have their unanimous opinion in behalf of the State of Pennsylvania - for the commissioners had agreed that the minority should yield to the majority, so that the decision might be unanimous, and in framing their view they apparently heeded the sage advice of my Lord Mansfield to a lawyer turned judge and not very well grounded in the law, to abstain from reasons for his judgment. The award of the court follows in full: The agents attending, the Court pronounced the following sentence or judgment: This cause has been well argued by the learned counsel on both sides. 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.2 The commissioners were of the opinion, as stated in a communication dated December 31, 1782, addressed to John Dickinson, then President of Pennsylvania, that the question for them to decide, and actually decided by them, was the right of Pennsylvania to the soil in its title of sovereign, and that the claims of individuals to the soil whether based upon grants from Connecticut or from Pennsylvania were unaffected by the decision. The Honorable Cyrus Griffin, the fifth member of the court, made a similar statement in a letter dated September 15, 1796, and vouchsafed the following interesting information concerning the procedure of the commissioners in the trial and disposition of the case: Before the commissioners determined that important contest between. Pennsylvania and Connecticut, it was agreed: 1st. That the reasons for the determination should never be given. 1 Davis, Federal Courts, 131 U. S., Appendix, p. lv. 2 Journals of the American Congress, 1823, Vol. IV, p. 140. Two Other Cases 2nd. That the minority should concede the determination as the unanimous opinion of the court. No doubt sufficient reasons appeared to us to adopt these preliminary points. But I can assure you, sir, that the commissioners were unanimously of opinion that the private right of soil should not be affected by the decision. The decision was not to reach the question of property in soil.i The international significance of the strange and novel experience of a State appearing against a State in a tribunal of justice was not lost upon the public men of the day. No less a personage than Robert R. Livingston, then Secretary for Foreign Affairs of the Confederation, thought it of sufficient moment to refer to it in a letter dated January 10, 1783, addressed to the Marquis of Lafayette, in which he felt justified in saying: 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.2 3 } The cases of Massachusetts v. New York and South Carolina v. Georgia1 were disputes in which commissioners were appointed and courts constituted for the trial of the causes in accordance with the ninth of the i Articles of Confederation, and although the cases never came to trial, as the disputes were settled out of court, they are interesting, inasmuch as the case of Massachusetts v. New York is the only one in which a court had been appointed by agreement of the agents which did not come to trial; and the case of South Carolina v. Georgia is interesting and important in that it is the only case or controversy between the States under the ninth article in which the agents were unable to agree upon the members to form the court, and therefore the only one in which resort was had to the method of striking provided by the ninth article. The facts and procedure in these cases will therefore be briefly stated. On June 3, 1784, Congress received the report of the committee to which. it had referred "a petition from the legislature of the Commonwealth of Massachusetts, praying that a Federal Court may be appointed by Congress to decide a dispute between the said Commonwealth and the State of New York," and the Congress resolved "that the first Monday in December next 1 Henry M. Hoyt, Brief of a Title in the Seventeen Townships of the County of Luzerne, a Syllabus of the Controversy between Connecticut and Pennsylvania, 1879, pp. 45, 46. 2 Francis Wharton, Diplomatic Correspondence of the American Revolution, Vol. 6, p. 202. See also Jared Sparks, The Diplomatic Correspondence of the American Revolution (1830), Vol. x, p. 21. 3131 U. S., Appendix, p. lxi. 4 Ibid., p. lxii. Ibid., p. lxi. be assigned for the appearance of the said States of Massachusetts and New York by their lawful agents, at the place at which Congress shall then be sitting." 1 From the petition of the State of Massachusetts, it appeared that this State claimed the tract of land between 42° 2′ N. and 44° 15′ N., which extended westwardly, in accordance with the terms of its charter, to the "Southern Ocean," which contention was denied by the State of New York as inconsistent with its charter. Therefore, on December 8, 1784, the litigating States appeared by their agents and presented their credentials, which were spread upon the Journal. The credentials of each were, by direction of Congress, examined by the agents of the two States and found to be without objection, whereupon, on December 10th, the agents were " directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question, agreeable to the 9th of the articles of confederation and perpetual union." 2 The agents complied with the direction of Congress, and on June 9, 1785, the agents of the two States, namely, John Jay, Robert R. Livingston and Walter Livingston, on behalf of New York, and John Lowell, James Sullivan, Theophilus Parsons, Rufus King and S. Holton, on behalf of Massachusetts, informed Congress, in a paper to which they affixed their signatures, that they had selected as judges, Thomas Johnson, George Wythe, George Reed, James Monroe, Isaac Smith, William Patterson, Samuel Johnson, William Fleming and John Sitgreaves. The agents requested that commissions might be issued to the judges and that they be notified to meet at Williamsburg, Va., on the third Tuesday of November next, to hear and determine the controversy. The court, however, did not meet, as appears from the following resolution of the Congress of October 8, 1787: Whereas it appears by the journals of Congress that a federal court has been instituted pursuant to the articles of confederation and perpetual union, to hear and determine a controversy respecting territory between the states of Massachusetts and New York; and whereas it appears by the representations of the delegates of the said states in Congress that the said controversy has ceased, and the same has been settled and determined by an agreement entered into on the 16th day of December last, by the agents of the said States, and any further proceedings in or relative to the aforesaid court having become unnecessary. Resolved, That all further proceedings in and relative to the said federal court, as also the commissions of the judges thereof, cease and determine.* The agreement between the two States was spread at length upon the Journal of the Congress, in accordance with the provisions of the ninth article, that "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." Almost a year to the date, namely, on June 1, 1785, after the case of Massachusetts v. New York had been brought before the Congress, that body resolved that "the second Monday in May next be assigned for the appearance of the states of South-Carolina and Georgia, by their lawful agents; and that notice thereof, and of the petition of the legislature of the state of South-Carolina, be given by the secretary of Congress, to the legislative authority of the state of Georgia."1 As in the case of Massachusetts v. New York, the form of notice contained a copy of South Carolina's petition, from which it appeared that South Carolina claimed certain lands lying between North Carolina and a line to be run due west to a certain spot said to be the head of the Savannah River, a contention denied by Georgia, which insisted that the source of the Keowee River is to be considered as the head of the Savannah.2 South Carolina also claimed the lands between a line drawn from the head of St. Mary River, the head of the Altamaha, the Mississippi and Florida, alleging that such lands were within the limits of its charter, and that they were not annexed to Georgia by the proclamation of the King of Great Britain, a contention denied by Georgia, which claimed the lands by virtue of such proclamation. The agents who were to appear in the month of May did not do so, because the time had been extended. They appeared, however, on September 4, 1786, the date agreed upon, at which time they produced their credentials, which were spread in full upon the Journal. They were then directed by the Congress, as in the other cases, " to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question, agreeable to the 9th of the articles of confederation and perpetual union." 3 The agents were less fortunate than in the case of Pennsylvania v. Connecticut and Massachusetts v. New York, in that they were unable to agree upon the members of the court. They therefore prayed Congress to proceed to strike a court agreeable to the Articles of Confederation. The Congress complied with this request, and on the 13th the agents of the States attended. On motion of the delegates of Georgia it was thereupon "Resolved, That Congress proceed to strike a court in the manner pointed out by the confederaThree persons were thus named from each of the States, and from the list of persons thus named each party alternately struck until the number tion." 4 |