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Show -9- settlement, the second mode of procedure was invoked. This was an appeal to the Crown* followed normally by a reference of the controversy to a Royal Commission.30 In effect such a controversy before a Royal Commission bore the characteristics of a litigation. From the decision of the Commis- sion an appeal lay to the Privy Council.31 These two forms of adjustments became common practice for a hundred years preceding the Revolution. An appeal in a boundary dispute between New York and Hew Jersey appears in the records of the Privy Council as late as 1773.32 The Revolution found a large number of these disputes still undetermin- ed. The Articles of Confederation were framed by statesmen deeply alive to these contentions and familiar with the -colonial methods for their adjust- ment. But the framers of these Articles were also familiar with the New England Confederacy of l643, the Temporary Congress of 1690, the Plan of commissioners to treat with the New Hampshire Commissioners, provides that "upon confirmation . . . His Majesty be humbly addressed by both Govern- ments for his Royal Approbation." See II Mass* Prov. Acts, 396. With the appointment of new commissioners in 1730 they were directed to determine the boundary so that it might "be indisputable in all times to come, upon its receiving the Royal Sanction 11 See II Mass. Prov* Acts, 517* The Act of Dec 7* 1754 appointing commissioners on the part of New York, specifi- cally recognizes the paramount character of the King's prerogative: "And altho his most Gracious Majesty hath the Sole and Absolute Right of Fixing and Determining such Line of Jurisdiction as Aforesaid « •" See 3 N» Y. Col* Laws, 1O36« The prerogative character of the royal sanction was only recently recognized in an Australian case, South Australia v, Victoria, supra. A.^ain, the exercise of the royal power might be asserted through the appointment of a Royal Commission to determine a disputed boundary question* This was the practice adopted in the disputes between New Hampshire and Mass- achusetts (12 Mass. Prov* Acts, 392)* between Massachusetts and Rhode Island (ij. R* I» Colo Rec. 596, note), between Massachusetts and New York (I4. Ne Y« Col. Laws, 9k8)> and between New York and New Jersey (1+ Acts of Privy Coun- cil, Col. Ser., 686)* Appeals from the decision of such a commission lay to the King in Council* Appeals were taken from the decision of the Royal Com- mission in the New Hampshire-Massachusetts Controversy and the Massachusetts Rhode Island Controversy. See 12 Mass* Prov. Acts, 14-07, 1+09; 13 ibid. 2I4-. The decision on appeal, though in form proceeding from the King, due to pressure of business was usually delegated to the Privy Council. See 2 Batchellor, Laws of New Hampshire (1913) 790. The King!s prerogative over boundary disputes between the Colonies must be distinguished from resort to Chancery to enforce boundary agreements between proprietary owners, upon the analogy of decreeing specific performance of contracts to convey land« See Penn. v. Lord Baltimore (175O, Ch.) I Ves* hhh> iA6« 30see e. g» the Massachusetts and New Hampshire Settlement of I7I4O, Appx<> B, I, (i), infra. * It will, of course, be recalled that the Privy Council was not for- mally set" apart through its judicial committee as a judicial organ until (1833) 3 & k Will* IV, c. hi* See Dicey, Privy Council (1887) passim* *% Acts of the Privy Council, Col* Ser. J4.5. See also Appx. B, I* (3) infra. |
