the Surveyors appointed by the Court, to be in the Latitude of 41 deg. 21 min. and 37 seconds. We are further of opinion that the Northern Station at Hudson's River being by the Words of the Said Deed from the Duke of York, Expressly Limited to the Latitude of 41 deg. should be fixed in that Latitude, which Latitude we have caused to be taken in the best manner by the Surveyors appointed by the Court, and which falls at a Rock on the West Side of Hudson's River marked by the said surveyors, being 79 Chains and 27 Links to the Southward on a Meridian from Sneydon's House, formerly Corbet's. IT IS THEREFORE the final Determination of the Court That the Boundary or Partition Line between the said Colonies of New York and New Jersey be a direct and straight Line from the said Fork at the Mouth of the River Mahackimack in the Latitude of forty-one Degrees twenty-one Minutes and thirty-seven Seconds to Hudson's River at the said Rock in the Latitude of forty-one degrees as above described.1 As to the subsequent proceedings, it is to be said that the New York assembly passed an act on February 16, 1771,2 ratifying the judgment of the Commission, and that New Jersey on its part passed an act September 26, 1772, referring to the act of New York confirming the judgment of the Commission, conditioning its acceptance upon the allowance of the New York Act by his Majesty in Council. Therefore on September 1, 1773, the King in Council decreed as follows: Whereas the Governor of His Majesty's Colony of New York, with the Council and Assembly of the said Colony, did in February 1771, pass an act which hath been transmitted in the Words following — Viz'. "An Act for Establishing the Boundary or Partition Line between the Colonies of New York and Nova Caesarea or New Jersey and for Confirming Titles and Possessions." Which Act, together with a Representation from the Lords Commissioners for Trade and Plantations thereupon, having been referred to the Consideration of a Committee of the Lords of His Majesty's most Honorable Privy Council for Plantation Affairs, the said Lords of the Committee did this Day Report as their opinion to His Majesty, that the said Act was proper to be approved - His Majesty taking the same into Consideration, was pleased, with the advice of His privy Council, to Declare his approbation of the said act; and pursuant to His Majesty's Royal Pleasure thereupon Expressed, the said Act is hereby Confirmed, finally Enacted and Ratified accordingly -Whereof the Governor Lieutenant, Governor or Commander in Chief of His Majesty's said Colony of New York for the time being, and all others whom it may concern are to take Notice and Govern themselves accordingly.* The case of New York v. New Jersey, the proceedings of which have been stated with considerable fulness, began in negotiation and, through the intervention of the Board of Trade, ended in what may be called judicial de 1 Pratt, Boundaries, Vol. ii, pp. 769–70. 2 Ibid., pp. 782-5. 3 Ibid., 786-7. 4 Ibid., 789. Debt to Justice to the cision. There are, however, two cases, shorter and less detailed, and which, with slight changes in the caption and in the phraseology of the opinion, might properly appear as judgments of the Supreme Court of the United States in the series of cases to which Rhode Island is a party. The first is that of Rhode Island v. Connecticut,1 decided in 1727, in which the boundary between Rhode Island on the west and Connecticut, its more powerful neighbor, was decided; and the second is that of Rhode Island v. Massachusetts, decided in 1746, in which the eastern boundary of Rhode Island was determined in its favor against its stronger and aggressive neighbor to the east. And, without stopping to analyze these cases, models of their kind and of judicial settlement, it may be proper to premise that partisans of judicial settlement are deeply indebted to the litigious little State, not only for these cases but for the seven lawsuits with the State of Massachusetts, decided by the Supreme Court of the United States and to be found in the official reports of that Tribunal, by virtue of which the northern boundary of Rhode Island, and therefore the southern boundary of Massachusetts, was finally determined. If the Atlantic Ocean had not been made the southern boundary of the little State by charter, it would no doubt have instituted a law suit to have that determined, as it did in the western, eastern and northern points of the compass. It thus furnishes, it is believed, the unique example of a State having submitted all disputes concerning its boundary to judicial decision, and thus having its bounds settled and its existence preserved by decree of court. Justice is indeed the shield and buckler of the smaller States, if they did but know it, for Rhode Island would, without the shadow of a doubt, have been swallowed up by Connecticut and Massachusetts had their land hunger not been stayed by the just hand of the judge.3 1 Acts of the Privy Council, Colonial Series, Vol. vi, p. 159, § 344. 2 Ibid., p. 267, § 470. 3 An accurate, industrious and well informed writer has this to say on the settlement of disputes of this kind between the colonies: Boundary disputes between the several colonies were of even more pressing importance than were those with foreign nations. In 1700 none of the colonies had its limits so well defined that it was free from such controversies, and as time went on these questions had to be settled. It was difficult for the interested parties to arrive at a satisfactory agreement without recourse to some outside party: consequently the Board of Trade was the body to which, as a last resort, all these controversies were referred. . . . "As all settlements of a boundary controversy were, of necessity, ratified by laws passed by the colonial legislature, any such settlement could be invalidated by the action of the Board of Trade. If private individuals were injured in their property interests, they had just grounds for a complaint to the king, and such a complaint would involve the boundary dispute and its settlement. If, on the other hand, the interests of the crown were at stake, it had to be made a party to the settlement or it would refuse to recognize its validity. Thus in either case the question would come before the crown for ratification. . . . "The regular method of procedure in settling a dispute was to secure the appointment of a royal commission. All the important boundary controversies, such as those between North Carolina and Virginia [The commissions for settling this boundary were joint tribunals, appointed partly by the crown and partly by the proprietaries. See: North Carolina Colonial Records, vol. i, 703, 716, 735, 750, vol. iii, 12, 17.], North and South Carolina [Ibid. vol. iv, 28.], New York and Massachusetts [Proposed but not carried into execution. See: Pratt's Boundaries of New York vol. ii, 88-225.], and the latter province and New Hampshire [Com Second, as to appeals from judicial decisions of a colony involving the setting aside of colonial laws and the reversal of decisions of colonial courts based upon such laws. In 1699 the colony of Connecticut passed an act regulating the descent of estates of persons dying intestate, allowing the children of the deceased, females as well as males, to share in the distribution of the realty, reserving only to the eldest son a double portion instead of casting upon him the realty in its entirety, as in the common law of England.1 The charter of Connecticut allowed the colony "from Time to Time to Make, Ordain and Establish all manner of wholesome, and reasonable Laws, Statutes, Ordinances, Directions, and Instructions, not Contrary to the Laws of this realm of England." 2 There was no reservation in the charter for the transmission of the laws to England, there to be approved by the Crown before they went into effect, or to go into effect subject to be set aside by the Crown within a certain period. The colonial officials elected by the freemen of the colony were not anxious to awaken sleeping dogs, if that homely expression rather than lions be applied to the mother country, and laws claimed to be in excess mission of 1737. See: New York Colonial Documents, vol. vi, pp. 823, 953.] and Rhode Island [The commissioners in this.case were Cadwallader Colden, Abraham Vanhorn, Phillip Livingston, Archibald Kennedy, and James De Lancey of New York; John Hamilton, John Wells, John Reading, Cornelius Vanhorn, and William Provost of New Jersey; and William Skeene, William Shirreft, Henry Cope, Erasmus James Phillips, and Otho Haymilton of Nova Scotia. See: Board of Trade to Governor Clinton. Ibid., 167-168.], were settled in this way. These commissioners were appointed by the Board of Trade upon the authority of an Order in Council, were composed of men selected from the neighboring colonies, and were usually paid by the two parties to the controversy. This method of payment required the consent of both parties, but it seldom happened that a colony refused to bear its share of the charges. [In regard to a commission for settling the boundary between Massachusetts and Rhode Island, the Board says the 'charges of which and the execution thereof the agents for the Massachusetts Bay and Rhode Island have agreed are reasonable equally to be bourne by both provinces.'- Letter to Clinton, August 1, 1740. Ibid., 167-168.] In some cases the Board secured authority to pay the expenses of such commissions from the quit rents of the provinces concerned, as was done in settling the southern boundary of Virginia in 1711 and again in 1729 [North Carolina Colonial Records, vol. iii, 13, 17, vol. iv, 28.] . "It is thus seen that the Board of Trade acted as a high court of arbitration for disputes as to territory or jurisdiction. It did not settle disputes on its own authority, but it provided a way by which such controversies could be determined by special commissions. These were in reality special courts of arbitration, which had power to settle the questions at issue, but from which an appeal would lie to the Board. [In form it was an appeal to the king, but as all such complaints and appeals were heard by the Board of Trade, it was in reality an appeal to that body.] If either party were dissatisfied with the decision of such a commission, it could prosecute a complaint in the usual manner; and if its work should appear irregular, another commission was issued to rehear the case. In all this there was an evident attempt to do justice to all parties concerned. . . . The clause in the Constitution regarding changes in state boundaries is but a recognition of the constant practice of the Board of Trade in settling disputes of this character.. (Oliver Morton Dickerson, American Colonial Government, 1696-1765, pp. 287, 288, 290-91, 295). The learned writer might have added that such action of the King in Council through the Board of Trade is the precedent for the 9th of the Articles of Confederation, and it would appear, of that large and beneficent jurisdiction with which the Supreme Court of these United States has been endowed by Article II, Section 2 of the Constitution thereof.-Ed. 1 The Public Records of the Colony of Connecticut, [Vol. I] 1689 to 1706, C. J. Hoadly ed., 1868, pp. 306-9. 2 Thorpe, Charters and Constitutions, Vol. 1, p. 533; Poore, p. 255. of this grant would reach the King in Council or the Board of Trade through private parties and upon private initiative if at all. In this case the transmitter was at hand in the person of John Winthrop, son of Wait Still Winthrop, Major General of Massachusetts and Chief Justice of its Superior Court, who died intestate in 1717 owning personalty and realty in Connecticut, in which colony he had himself been born a son of the Governor thereof but had preferred to grace Massachusetts by his presence. John Winthrop, of whom Carlyle's mother would doubtless have said, as she said of her son, "he was an ill man to live with," had a sister, Anne, who married a well connected but not too well to do person by the name of Lechmere, who resided at that time in Boston. On behalf of his wife, he claimed one portion of the realty of the father-in-law's Connecticut estate. Winthrop was appointed administrator by the Court of Probates for the County of New London, Colony of Connecticut, in which the realty was situated, and, contending that he was entitled to the real property according to the doctrine of primogeniture, obtaining in the common law of England, did not include the realty in his inventory, as he should have done according to the Connecticut act of 1699 for the settlement of intestate estates. The Court of Probates therefore rejected the inventory and Winthrop, as administrator, thereupon appealed to the Superior Court. Pending the appeal, Lechmere applied to the Court of Probates for new letters of administration, which, however, denied his motion. Thereupon, on appeal to the Superior Court, having the two appeals before it at one and the same time, it decided both of them against Winthrop. The General Assembly refused to intervene in his behalf or allow an appeal to the King in Council. The appeal, however, was made by Winthrop and allowed by the King in Council, and the case on appeal referred to the Committee for Hearing Appeals from the Plantations. Before this Committee Sir Philip Yorke, then Attorney General and later Lord Chief Justice of the King's Bench and Lord High Chancellor, known to lawyers as Lord Hardwicke and to the English speaking world as the greatest of equity judges, and Sir Charles Talbot, then Solicitor General, later Lord Chancellor Talbot, less known perhaps but hardly less deserving than Hardwicke, who succeeded him in the Chancellorship, appeared on behalf of Winthrop. On behalf of Lechmere one Willes, supposed to be Sir John Willes, later Attorney General and Lord Chief Justice of the Common Pleas, and an English barrister by the name of Barton, appeared. Without referring the appeal to the Board of Trade, as was usual in such cases, the Committee for Hearing Appeals from the Plantations heard counsel for plaintiff and defendant and, after argument, recommended that the Connecticut act of 1699 for the settlement of intestate estates, and subse Precedent quent acts in the case, be declared null and void as contrary to the common Another law of England, and that the decisions of the Connecticut courts as against for Grant Winthrop's contention and in favor of Lechmere and his wife be reversed Supreme and set aside as based upon the Connecticut statutes contrary to the charter, Unconstitutional or, as we should say, as unconstitutional. As the decree of the King in Council approving the recommendation of the Lords of Appeal was well known to the colonists, extending the judicial power to acts of the legislature as well as to judgments of a colonial court, and is the great precedent for investing the Supreme Court of the United States with the power of pronouncing laws unconstitutional and reversing decisions of courts of justice, whether of the State or of the United States, based upon such acts of Congress or such provisions of State constitutions, the material portion of the report of the Lords of Appeal, confirmed by the King in Council, is given in its exact words: Their Lordships, upon due consideration of the whole matter, do agree humbly to report as their opinion to your Majesty, that the said act for the settlement of intestate estates should be declared null and void, being contrary to the laws of England in regard it makes lands of inheritance distributable as personal estates and is not warranted by the charter of that colony; and that the said... sentences. . . rejecting the inventory . . . because it did not contain the real as well as personal estate . . . may be all reversed and set aside; and that the said sentence vacating the said letters of administration to the said Thomas and Anne Lechmere should also be reversed and set aside.1 Commentary upon this case could only weaken its force and effect as the younger Pitt is reported to have said of Erskine's speech following that of Fox, that it only repeated and weakened the arguments of that right honorable gentleman. By the charter of June 26, 1632, the second Lord Baltimore was granted the province, now the State of Maryland, bounded on the north by the 40th parallel of North Latitude, on the west and southwest by a line south of this parallel to the farthest sources of the Potomac, and thence the further bank" of that river to Chesapeake Bay; on the south by a line across the Bay and peninsula to the Atlantic Ocean; and on the east by that Ocean and Delaware Bay and River.2 1 Privy Council, 1728 (Connecticut Colonial Records, 1726–1735, pp. 571, 577). See also J. B. Scott, Judicial Settlement of Controversies Between States of the American Union, Vol. 1, pp. 93-8. 2 The portion of the charter relating to the boundaries of the colony is, in English translation, as follows: "All that Part of the Peninsula, or Chersonese, lying in the Parts of America, between the Ocean on the East, and the Bay of Chesapeake on the West, divided from the Residue thereof by a Right Line drawn from the Promontory, or Head-Land, called Watkin's Point, situate upon the Bay aforesaid, near the River of Wigloo, on the West, unto the Main Ocean on the East; and between that Boundary on the South, unto that Part of the Bay of Delaware on the North, which lieth under the Fortieth Degree of North Latitude from the Equinoctial, where New England is terminated; And all that Tract of Land within the Metes Court to Declare |