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the Indian Sachims or by him sold vnto Harris or Partners, nor is there mention of those Lands in any Deed of Sale;" 4th, that the line run by the town of Providence, "whereof Harris, and Field are Inhabitants was accepted by the Commissioners and is according to Right;" and 5th, that the line run was not satisfactory to the Commissioners themselves who had run it, in that they had been obliged to submit the whole matter to his Majesty in council.1

Therefore, Messrs. Holden and Green prayed that the original line be confirmed, or that matters remain "in the first state" until Harris and his partners should show cause to the contrary to His Majesty. "In Consideration of the Complainants humble appeale vnto your Majestie for Justice (which your Majestie in like Cases will alwaies allow of and encourage) together with the reasons, and Euidences Offered by them in Justification of their Right, and present possessions which do not appear to be any part of the Lands of Patuxet, which only by your Majesties Commission were to be brought to a tryall," the Committee for Hearing Appeals recommended that "Your Majestie do therfore Signifie Your Royall Pleasure vnto William Harris, and all others whom it may concerne that the Inhabitants of the Towne of Warwick be not Disturbed in the quiet and peaceable enjoyment of the Lands claymed and possessed by them the Inhabitants of the Town of Warwick, And that all things relating therevnto remain in the same state they were in before the meeting of the said Commissioners vntill the said William Harris or Partners shall, in the Law full Defence of their Right before your Majestie in Councill make out a Sufficient title to the said Lands." 2

The report of the Committee was, as usual in such cases, approved and orders given accordingly for the inhabitants of Warwick. As regards the claims of Harris to lands situated within Patuxet, concerning which he went to England to petition the Privy Council, "which only by his Majesties Commission were to be brought to a tryall," the commissioners made a favorable report, and it was therefore ordered that Harris and his partners be peaceably and quietly possessed thereof.

The order of the King affirming the report of the Committee was dated January 2, 1679, but the matter did not rest here, as it appears from the record of the Privy Council under date of July 2 of the same year:

Whereas the said Holden and Green were no sooner departed, but the Petitioner William Harris hath made his Appearance, beseeching your Majesty to take such Course as might finally determine the Matters complayned of by him.3

The Committee was very naturally of the opinion" That by reason of the distance of Places and Absence of the Parties it wilbe a matter of too great

1 Ibid., pp. 803, 804.

2 Ibid., pp. 804-5.

Ibid., p. 849, § 1291.

Further Judicial

Precedents

difficulty for your Majesty to give such Judgment therein as may equally decide their respective pretensions," and suiting the action to the words, they recommended, for the reasons stated by them, the following procedure which in their opinion should be adopted as it was calculated to do justice towards the parties:

And whereas the said Holden and Green did offer their Exceptions against the Colonies of the Massachusets and Conecticut upon divers past differences between them, And that on the other side the Petitioner William Harris thinks he has just cause to except against the Colony of Rhode Island as being particularly interessed in the present Controversy. Wee therefore humbly offer, That your Majestys Royall Commands be again sent to the Governor and Magistrates of your Colony of New Plymouth, Authorizing and requiring them to call before them the said Randall Holden and John Green, and other Persons in whose behalf they have lately appealed unto your Majesty And having in due manner examined the Pretensions of the said Harris unto the Lands possessed by them, do returne unto your Majesty a particular State thereof and their opinions thereupon with all convenient speed.

And whereas your Majesty hath already thought fit to Order, That the said William Harris and Partners be peacably and quietly possessed of the Lands of Patuxet adjudged unto them by the first and Three last Verdicts given in pursuance of your Majestys late Commission, Wee further offer That the Governor and Magistrates of the Colony of Rhode Island, to whose Jurisdiction the said lands apperteyne be strictly charged and required to put the said William Harris and Partners into the quiet possession thereof, and to take care that Execution be given for their Dammage and Costs allowed by the said Verdicts and Judgments of Court, within the space of Three Moneths at furthest after the Receipt of your Majesty's Comands, And that in default thereof, sufficient Powers may be sent unto the Neighbouring Colony of New Plymouth to cause the same to be duly executed without delay.1 Harris returned to Rhode Island in September, 1679, and was victorious in the rehearing against Warwick.

As far as we are concerned, the dispute may well end here, inasmuch as the present purpose is not so much to show the decision, but the method of reaching it, where representatives of different colonies claimed land within another, where representatives of one and the same colony claimed lands to which adjoining colonies laid claim, and where, finally, the claim of land within one colony is based upon title alleged to rest in another and different colony. For all of which disputes this case, in its different phases may be cited as a precedent for the jurisdiction in these matters conferred upon the Supreme Court of the United States by the framers of the Constitution of the more perfect Union. However, it may perhaps be permissible to conclude the analysis of this interesting law-suit with the statement that after obtaining judgment against Warwick, the litigious Harris set sail for England in a vessel very inappropriately called The Unity, in order to appear before the 1 Acts of the Privy Council, Colonial Series, 1613-1680, pp. 849-50.

Privy Council not only in propria persona but as the agent of Connecticut and of Major Atherton and his associates in their various pretensions to the Narragansett region. On the voyage thither he was taken, in January, 1680, by an Algerian pirate and held in slavery for ransom. When he was eventually released upon its payment, he died in London within a few days after his arrival, leaving it to the Privy Council to decide in 1727 and 1746 the claims which he had espoused, adverse to his contentions and in favor of the stout little colony of Rhode Island, of which he was an unworthy resident.

Passing by the many cases of appeal from local courts to the Privy Council involving a denial or miscarriage of justice, which could and probably would be taken in ordinary course from a lower to a court of last resort, inasmuch as they neither furnished a precedent nor throw light upon the judicial power of the United States, the three categories of appeals will be considered, and in some little detail, as they are apparently the source of that jurisdiction, conferred in first instance upon the Congress by the ninth of the Articles of Confederation and upon the Supreme Court of the United States by twelve of the original thirteen States in creating the more perfect Union.

First as to boundary disputes between the colonies in the absence of an enforcible agreement between them. Instead of discoursing in general and in the abstract upon the nature and jurisdiction of the Privy Council and the Lords Commissioners of Trade and Plantations, it is advisable to take a specific and concrete case, to follow it from the beginning to the end, and thus, as it were, let it tell its own story. For this purpose the long drawn out controversy between New York and New Jersey is chosen, not only because it is complete in itself, but because it states perhaps better than any other the ordinary course of procedure in such disputes.

Boundary

Between

New York

and New

Jersey

On December 23, 1717, an Act of the Assembly of the Colony of New From York called attention to the fact that:

"The Partition Lines between this Colony and the Colony of . . . NewJersey, are necessary to be known and ascertained, in order that such of the Inhabitants of this Colony, whose Estates or Habitations are adjacent to, and border on the said Partition Lines, may peaceably, and without Molestation, enjoy the Fruits of their Industry; and that the Government may not be defrauded of the publick Taxes that may arise and become due from the said Inhabitants, by their pretending that they do not dwell within this Colony. . . .

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For this purpose money was appropriated to "be applyed to defray that part of the Charge of Running, Surveying and ascertaining the Partition Line Limitt and Boundary between this Colony and the Colony of New Jersey which may be requisite for this Colony to pay . . . in such parts & propor1 Laws of New-York from the Year 1691, to 1751, inclusive (1762), p. 125.

Negotiation to Judicial Procedure

tions as shall be requisite for that Service, when the Survey ascertaining and Runing of the said Line Limitt and Boundary shall be began and Carryed on by the mutual Consent and agreement of his Excellency & Council of this Province and the Proprietors of the soil of the said Province of New Jersey . . which Lines being Run ascertained and agreed on by the Surveyors and Commissioners of each Colony, as afore said, shall forever thereafter be Deemed taken be and remain as the partition Line Limitt and Boundary of this Colony, and all bodys Corporate and Politick, and all other persons whatsoever within this Province, shall be forever Concluded thereby."

On March 27, 1719, the Province of New Jersey passed an Act" for running and ascertaining the Division Line betwixt this Province and the Province of New-York," and after stating the existence of disputes and controversies between the two colonies, as in the case of the New York Act, provided for the appointment of two or more commissioners with the Surveyor General of the Province of New Jersey, by the Governor of New Jersey, by and with the consent of the Council, "empowered by a Commission under the Great Seal of this Province, to join with such Commissioners and Surveyors as shall be appointed on the Part and Behalf of the Province of New-York," to "Run, Survey, Agree on and Ascertain the said Line, Limits and Boundaries betwixt this Province of New-Jersey, and the said Province of NewYork, according to the true Limits thereof, as near as conveniently can be done." And it was further provided that the line drawn by the commissioners of the two provinces in accordance with their commissions was to be considered the boundary line between the two provinces "any Law, Usage, Custom or Pretence to the contrary in any wise notwithstanding." 1

In 1719, pursuant to the Acts of New York and New Jersey, Governor Hunter of the former colony issued commissions to two commissioners and the Surveyor of the province to meet with the two commissioners and the Surveyor General of the province of New Jersey, "in Order to find out and Determine which of the Streams is the Northermost Branch of the River Delaware, And that then when such Branch is so Discovered that the said Surveyor or Surveyors Carefully According to the best of their Knowledg and understanding Discover and find out that Place of the said Northermost Branch of Delaware River that Lyes in the Latitude of fforty one Degrees and fforty Minutes which is the North Partition Point of New York and New Jersey," and to "Discover that part on the West side of Hudson's River that Lyes in the fforty One Degree of Latitude," and having fixed these two points, to run a straight line between them, "which line being so Run and Marked out is forever hereafter [according to the Acts of the two Colonies] to be

1 The Acts of the General Assembly of the Province of New Jersey (1752), Vol. i, pp. 77–8.

Deemed taken be and Remaine as the Partition Line Limitt and Boundary between our said Provinces of New York and New Jersey." 1

By an indenture of July 25, 1719,2 the commissions appointed by the two colonies certified that the point of the Delaware had been located, but owing to disputes which arose between the colonies, the commission did not complete its work, and the question remained unsettled until it was taken up anew by an Act of New Jersey of February 18, 1748, by virtue whereof the boundary line between the two provinces was to be drawn in pursuance of the Acts of the two colonies, of 1717 and 1719, if New York consented thereto, and if not, by commissioners on the part of New Jersey. Because of protests on the part of New York, this Act containing a suspending clause which required the approval of the Crown was disallowed by the King in Council upon the recommendation of the Lords of Trade and Plantation dated July 18, 1753. This recommendation, setting forth the proceedings actually had in

this case and those which should have been had, is as follows.

In the first place the Board of Trade states that two considerations arise. upon the New Jersey act: First, "such as relate to the principles upon which it is founded"; second, "such as relate to the Transactions and Circumstances which accompany it." Under the first heading the Board calls attention to the fact that the act of New Jersey is the attempt of that province to secure the determination of a matter of specific interest to New York and of general interest to the Crown. Thus:

AS to the first, it is an Act of the Province of New Jersey, interested in the Determination of the limits, and in the consequential Advantages to Arise from it.

THE Province of New Jersey in its distinct and separate Capacity can neither make nor Establish for deciding differences between itself and other parties concerned in Interest.

THE Established Limits of its Jurisdiction and Territory are such as the Grants under which it claims have assigned. If those Grants are doubtful and differences Arise upon the Construction or upon the matter of them, We humbly Apprehend that there are but two methods of deciding them, either by the concurrence of all parties Concerned in Interest or by the regular and legal Forms of Judicial proceedings, And it appears to us, that the legal method of proceeding must be derived from the Immediate Authority of the Crown itself, signified by a Commission from your Majesty under the Great Seal the Commission of subordinate officers and of derivative powers being neither Competent nor adequate to such purposes. To judge otherwise would be, as We humble conceive, to set up ex parte Determination and Incompetent Jurisdictions in the place of Justice and legal authority.

1 Report of the Regents of the New York University on the Boundaries of the State of New York, prepared by D. J. Pratt, 1884, Vol. ii, pp. 608, 609.

2 Documents Relating to the Colonial History of New Jersey, ed. Wm. A. Whitehead, 1882, Vol. iv, p. 394. Also, Pratt, Boundaries. Vol. ii, pp. 611-614.

3 New Jersey Laws (Allinson's Compilation), p. 172.

Documents Relating to the Colonial History of New Jersey, ed. Wm. A. Whitehead, 1882, Vol. iii, part 1, pp. 144–150. Also, Pratt, Boundaries, pp. 656–9.

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