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Assistant Professor of History, Rice Institute, Houston, Texas

It is the purpose of this paper to review the methods and the principles which have been involved in the quasi-international jurisdiction which has been exercised to settle the disputes which have arisen between the members of the great federations which have sprung from the British Empire of the seventeenth century. These methods have not only been widely copied in the past, especially by the various South American states and by Switzerland, but they are likely to become of compelling interest, if ever the world should apply the federal principle to the League of Nations of which we hear so much in these days.


As soon as the colonies were thickly settled on the Atlantic shore of what is now the United States, it was natural for them to become involved in bitter disputes about their conflicting boundaries and trade regulations. These controversies were settled either (1) by informal agreements between the colonies, which were sometimes sanctioned later by the Privy Council, or (2) in the more serious cases by the Council itself acting under the royal prerogative. Since the disputes were almost always concerned with the interpretation of charters which came at least nominally from the King, it was evidently proper that the same King in Council should sit as the arbiter in these controversies. Sometimes the Privy Council decided these issues in London; again it sent out commissioners to bring the parties into agreement on the ground. In every case the authority of the Council was looked upon by the distant colonists with the greatest jealousy, but its legal authority in such matters was never questioned.

1 Osgood, Colonies, Vol. 3, p. 21.

It is safe to say that from the authority of this administrative body is derived the quasi-international authority of every federal court in the world, except the German Bundesrath whose power to settle the disputes of the members of the German Empire has a wholly distinct origin in the Diets of the Confederation and of the Holy Roman Empire.

The chief cases which came somewhat formally before the Privy Council in colonial days were: Massachusetts and New Hampshire, 1675-79, Pennsylvania and Maryland, 1683-1709, New York and Connecticut, 1700, Connecticut and Rhode Island, 1725-26, Virginia and North Carolina, 1726-27, Rhode Island and Massachusetts, 1734-46, Second Pennsylvania and Maryland Case, 1734-69, New Hampshire and New York, 1764, New York and Quebec, 1768.2

The first of these cases was not technically between two provinces, but between Massachusetts and the proprietors of Maine and New Hampshire. On January 13, 1675, Ferdinando Gorgas and Robert Mason complained that Massachusetts was dispossessing them of their inheritance in their provinces. December 22nd of the same year the committee of the Council reported that they had heard the representations of Mason and Gorgas, who asked that commissioners be appointed to settle the boundaries. But they “did not think it proper to advise your Majesty to determine anything 'ex parte' and without hearing what the Bostoners can say." The Council therefore was advised to send word to the “Bostoners” that His Majesty could not long delay doing justice, but "was unwilling to determine in a matter of so much weight without first hearing what they can say why your Majesty should not give the petitioners relief.” On February 7th, the committee was ordered to examine all the documents in the case and to report to the Council. The committee obtained the opinions of the Chief Justices of the King's Bench and Common Pleas, whereupon the parties were ordered to be heard at the Board on a certain day “when His Majesty expects that they conteyne themselves within those bounds of Modesty and Respect that is due to the judges of

2 Acts of the Privy Council, Colonial Series, 1613-1783; Andrews, Colonial Self-Government, 261; Greene, Provincial America, 21; Thwaites, Colonies, 174, 190-4, 267-9; Osgood, Colonies, Vol. 3, Chapter 10.

this Kingdome.” The Council acquiesced in the opinion of the Justices, and after the parties had been heard again in rebuttal, “His Majesty was pleased to approve of and confirme the same, and did order, that all the parties do acquiesce therein, and contribute what lies in them to the punctual and due performance of the said report, as there shall be occasion.” During these negotiations, Massachusetts tried to anticipate the unfavorable verdict of what she regarded as a prejudiced court by quietly buying Maine from Gorgas for twelve hundred pounds sterling. But she was finally compelled to relinquish her purchase to the King, who also took over the government of New Hampshire at the same time.3

The dispute between Virginia and North Carolina arose when the former refused to allow the tobacco of her neighbor to cross her territory. On complaint by North Carolina to the Board of Trade these acts were disallowed. This case is interesting because the high court settled a controversy between two colonies by declaring the laws of one invalid. The Supreme Court of the United States has never yet so combined its two most sweeping powers, to declare laws unconstitutional and to decide controversies between States, but there seems to be no reason why there should not some day again be a case to go back in its chief features to this early controversy, and indeed the suggestion of such a possible solution is to be found in the dispute between Louisiana and Texas over quarantine regulations. The controversy between North Carolina and Virginia was complicated by a boundary dispute which was finally settled by an agreement between the two colonies which received the sanction of the King."

The colonies probably had no legal right to make binding agreements, but it was not the practice of the Crown to disturb such an agreement when it had been acquiesced in for any length of time and had led to the establishment of important private rights. Sir W. Murray, afterwards Lord Mansfield, gave an opinion (Nov. 5, 1754) in which he stated his view of such unsanctioned agreements. ferring to an agreement of 1713 between Connecticut and Massachusetts, he said: "I apprehend His Majesty will confirm their agreement, which of itself is not binding on the Crown, but neither Province should be suffered to litigate such an amicable compromise of doubtful boundaries. . . . . If the King approves the agreement, I think it is now too late for the parties to dispute it.” 6

3 June 20, 1679. Acts of the Privy Council, Colonial Series 1, pp. 640, 844, 851. For the decree which settled the Connecticut River as the boundary between New Hampshire and what was then New York (1764) see Documentary History of New York (1851), II, 355.

4 176 U. S. 143.
5 Thwaites, Colonies, 190-4.

These early settlements were evidently not in any sense international arbitrations, but had all the paternal character of administrative determinations both in their nature and results. However much the colonies might neglect or disregard the common master, his legal authority was always there in the background of their relations. And even though the decisions from London were sometimes arbitrary and highhanded, the habit of looking to this common administrative court for solution of difficulties became a real though reluctant habit until almost the moment of war. And this longestablished habit made possible the introduction of the provisions in the Articles of Confederation and later in the Constitution which were expected to fill the gap now left vacant by the Privy Council; and these provisions, in turn, have been copied in modified forms in practically all the Spanish-American states, in Australia, in Switzerland, and in the laws, though not the Constitution, of Canada. In Germany alone, the method of settling such problems by the Bundesratho is obviously of an entirely different origin, going back to the Diets of the Confederation and of the Holy Roman Empire.

In the century between 1670 and 1770 nine great cases involving such disputes came before the Privy Council. Only one of these came before an ordinary court in a fashion at all comparable to a modern case between two States in the Supreme Court of the United States. This was the case of Penn v. Lord Baltimore, which came for decision before Lord Chancellor Hardwicke in the High Court of Chancery, May 15, 1750. Some of the dicta in this case make it

6 12 C. L. R. 704. 7 E.9., Constitution of Mexico (1917), Art. 105; Argentina, Arts. 100, 101. 8 Switzerland, Constitution, Art. 110. • Constitution of German Empire, Art. 76.

the legal ancestor of our own modern controversies. But it is to be remembered that this was not an original settlement of the main questions, and that the nominal parties to the suit were not two communities, like present day states, but two proprietors. The Court of Chancery recognized that its authority was subject to the superior power of the Privy Council.

Penn sued to secure specific performance of an agreement to have a boundary fixed by drawing a line at a distance of twelve miles from Newcastle. The order was issued as prayed for by Penn. The Chancellor was duly impressed with the importance of the case "being for the determination of the right and boundaries of two great provincial governments .... of a nature worthy the judicature of a Roman Senate rather than of a single judge; and my consolation is, that if I should err in my judgment, there is a judicature equal in dignity to a Roman Senate, that will correct it.” As to the objection that the court could not enforce its decree in such a case, the Chancellor said, “If they could not at all, I agree it would be in vain to make a decree, and that the court cannot enforce their own decree in rem in the present case: but that is not an objection against making a decree in the cause; for the strict primary decree in this court as a court of equity is in personam." 10



After the century of paternal authority over colonial disputes, this function of the Privy Council has fallen into almost complete disuse. Only three cases have come before the Council since the American Revolution which are at all comparable to the great intercolonial controversies of the eighteenth century, when the Privy Council exercised original and final jurisdiction even over colonies which were none too eager to have their difficulties smoothed out in this fashion. These cases are the Cape Breton Case of 1846,11 the Pental Island Case, between New South Wales and Victoria in 1872, and the Manitoba and Ontario Case of 1886. In all three cases both parties appeared willingly before the court, and in the last of these

10 1 Vesey Sen. 444.

11 5 Moo. P. C. C. 250.

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