State Boundary Disputes    

The French statesman Talleyrand once expressed a preference, often misattributed to Napoleon, for a constitution that was “short and obscure”.  The Articles of Confederation, for the most part, met his preference.  They were relatively brief (3,400 words) and often ambiguous.

On one subject, however, they were mind-numbingly verbose and detailed: the resolution of state boundary disputes.  The relevant provision, part of Article IX, must be quoted in full to display its prolixity:

The United States, in Congress assembled, shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any state in controversy with another shall present a petition to Congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question: but if they cannot agree, Congress shall name three persons out of each of the united states, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as Congress shall direct, shall in the presence of Congress be drawn out by lot, and the persons whose names shall be so drawn or any five of them, shall be commissioners or judges, to hear and finally determine the controversy, so always as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without showing reasons, which Congress shall judge sufficient, or being present shall refuse to strike, the Congress shall proceed to nominate three persons out of each state, and the secretary of Congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive, 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: provided that every commissioner, before he sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the state, where the cause shall be tried, "well and truly to hear and determine the matter in question, according to the best of his judgment, without favor, affection or hope of reward:" provided also, that no state shall be deprived of territory for the benefit of the United States.

All controversies concerning the private right of soil claimed under different grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the congress of the united states, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states.

The first amazing thing about this procedure is that it was used.  The second amazing thing is that, after a fashion, it worked.

State boundary disputes, to be sure, demanded attention.  They threatened to tear apart the United States.  State boundaries were based on British colonial charters, which were often vague, contradictory, and written in ignorance of American geography.  When states claimed the same land, they would sell the same land; and when they sold the same land, settlers bearing conflicting title deeds were left to fight it out on the spot.  Settlers from Pennsylvania and Connecticut had fought two nasty “Pennamite Wars” before the Revolution; several individuals had lost their lives, and the dispute was put in abeyance only out of need to make common cause against the British. 

Other disputes festered even in the midst of the Revolutionary War.  Ethan Allen and his Green Mountain Boys took up arms in 1775 to defend their New Hampshire Grants against interlopers from New York.  When New Hampshire lost interest in the matter, settlers proclaimed the independent Republic of Vermont (1777; see The Race to Become the Fourteenth State).

Small wonder, then, that when the Articles offered a means of dispute resolution, it was used; and that the state of Pennsylvania was the first supplicant.

Pennsylvania vs. Connecticut

PA vs CTIt seems odd, today, that Pennsylvania and Connecticut would have a border dispute.  They no longer have a border.  Connecticut thought that they had a border in 1781, however, because Connecticut claimed a strip of land from sea to sea (or at least to the Mississippi River), which included what today makes up the northern half of Pennsylvania.  Connecticut offered to cede the western part of its strip to the United States in 1780, but retained its claim up to the western boundary of Pennsylvania.

Thus it was that eight months after the Articles of Confederation were ratified, on November 3, 1781, the Executive Council of Pennsylvania laid a petition before Congress acknowledging the existence of a dispute, and asking for resolution via the procedure laid out in Article IX.  Eleven days later, Congress duly forwarded notice to the government of Connecticut, and set June 24, 1782 as the date for agents for the two sides to appear in Philadelphia.

Pennsylvania appointed five agents, who appeared on the appointed date.  Two of them, Joseph Reed and James Wilson, were former members of Congress.  Connecticut appointed three agents, two of whom, Jesse Root and Eliphalet Dyer, were sitting members of Congress.  Only Dyer was present on the appointed day, so he asked for a continuance.  It was granted.  Connecticut may have realized that they had the weaker case, because her agents repeatedly sought delay.

On July 16, both sides were ready to proceed.  Congress directed them to attempt to agree on judges.  Perhaps surprisingly, the two states succeeded.  They agreed on a panel of seven judges from neutral states.  Congress directed the judges to convene at neutral ground in Trenton, New Jersey on November 12, 1782.

Arguments before the judges ran from November 22 through December 24.  Connecticut stood on the words of its charter, which ran from sea to sea, and on land purchases she had made from Indian nations.  Pennsylvania pointed out that the charter had subsequently been circumscribed by the British recognition of the Dutch colony in New York and the grant of land to William Penn.  Also, Connecticut had let its claim lay dormant for nearly 100 years.

On December 30, 1782, the judges rendered a two-sentence judgment: “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.”

This proved to be a successful assertion of federal authority.  Connecticut accepted the verdict and dropped its claim. 

That was not quite the end of the matter, however.  What of the settlers who had bought land from Connecticut in good faith?  The settlers sent a petition to the Pennsylvania assembly: “We care not under what State we live.  We will serve you, promote your interests, fight your battles; but in mercy, wisdom, goodness, justice, and every great and generous principle, leave us our possessions, the dearest pledge of our brothers, children, and fathers, which their hands have cultivated, and their blood, spilt in the cause of their country, has enriched.”

It was not to be.  Pennsylvania ran wild in evicting the Connecticut settlers (1784), burning homes and crops and driving men, women, and children out of the state in a show of force remininiscent of militia attacks on American Indians (see From Conquest to Purchase).  The over-reaction aroused sympathy in other states, and even in Pennsylvania, and the fugitive settlers were eventually allowed to return and secure new land titles from Pennsylvania.

 

Massachusetts vs. New York

MA vs NYThe dispute between Massachusetts and New York paralleled that between Connecticut and Pennsylvania.  Massachusetts insisted on its sea-to-sea charter, notwithstanding the later British recognition of and acquisition of the Dutch colony of New York.

The fact that Connecticut lost such a claim might have given the Massachusetts government pause, but in fact it was Massachusetts that initiated the request for a hearing in June 1784.  The state was nothing if not audacious in its suit, claiming a strip of land 150 miles from north to south across the entire state of New York.  (Massachusetts at the time included Maine, and extended farther north than it does today.)  If upheld in its entirety, the claim would have reduced New York to the triangle between Pennsylvania and Connecticut running down to the city of New York, plus a detached strip along the Canadian border. 

In practice, however, Massachusetts appears to have been interested primarily in the western, still unsettled, portion of the strip.  As the New York agents put it, “The Claim of Massachusetts is Vague and indefinite, comprehending ancient Settlements for which Massachusetts confessedly (does) not mean to contend.”

New York responded in December, and agents for the two states conferred on judges.  They agreed on nine judges in June 1785.  Delay ensued when some of the judges proved unable or unwilling to serve.  The delay gave time for Massachusetts and New York to reconsider their positions.  Their two groups of agents began to talk to each other.

Proceeding to trial was risky.  The losing party might come away with nothing.  The state of Massachusetts was in the grip of recession, the same recession that led to Shays Rebellion when farmers resisted foreclosure for failure to pay taxes.  Massachusetts needed money, not sovereignty over a remote region in western New York.

Eventually both legislatures authorized their agents to settle the case among themselves, rather than waiting for Confederation judges.  Massachusetts conceded sovereignty to New York, but New York authorized Massachusetts to sell six million acres surrounding what is now Buffalo.  The two states entered their agreement on the journal of Congress in October 1787, and court never sat.  Massachusetts sold its land to a land company for $200,000 in badly needed cash.

In this controversy, the mere existence of a federal resolution process provided the impetus toward settlement.


South Carolina vs. Georgia

GA vs SCEven while the previous dispute was gestating, South Carolina brought the next case before Congress.  In this case, the prolix provisions for striking out judges would be tested for the first and only time.

The boundary between Georgia and South Carolina, as charter boundaries go, was fairly straightforward.  It ran from the sea up the Savannah River to its source, or to the 35th parallel, whichever came first.  If the source was south of the parallel, the boundary ran west to the Mississippi, and South Carolina had a narrow strip of western land to call its own.  If the source was north of the parallel, then South Carolina was enclosed.

However, like most rivers, the Savannah forms from a confluence of tributaries.  South Carolina stated the point at issue succinctly in its petition to Congress on July 1, 1785: “(South Carolina) contends (that) the River Savannah loses that name at the Confluence of the Tugoloo and Keowee Rivers, consequently that spot is the head of the Savannah River; the State of Georgia, on the other hand, contends, that the source of the Keowee River is to be considered as the head of the Savannah River.”

Georgia was notified, and agents for the two states appeared before Congress on September 4, 1786.  The agents reported, one week later, that they could not agree on judges.  Thus it was that on September 13 Congress named 39 individuals, three from each of the states, to sit as potential judges.  The journals do not record how Congress came up with these names or what assurance they had that any of the judges would be willing to serve. 

Then the two groups of agents alternated in striking out names; on what grounds we know not.  They reduced the panel from 39 potential judges to 13, and finally the 13 names were placed in a box and nine names were drawn out.  The nine judges selected included James Madison and John Dickinson.  Congress directed the agents and judges to assemble in New York, where Congress was then sitting, in May 1787.

Once again, court never sat.  The agents hashed the matter out among themselves, and compromised (April 28, 1787).  The boundary was indeed to run up the tributaries to the Savannah, per Georgia.  But, to assuage South Carolina, it was to run up the western tributaries, the Chattooga and Tugoloo, rather than the eastern tributary, the Keowee.  This gave South Carolina control over about 200 square miles between the rivers, in which the largest town today is Seneca.

Two of the bypassed judges, who had travelled to New York, filed a claim with Congress for compensation.  Congress, which had no money, told them to apply to South Carolina and Georgia.

The dispute resolution clause, convoluted as it was, must be accounted a success.  It ended one long-festering controversy and led to out-of-court settlements in two others.  The Constitution of the United States (COTUS) retained the federal role in resolving state boundary disputes; but with a standing federal judiciary, special-purpose courts were no longer necessary.  The COTUS gives original jurisdiction over all cases involving one or more states to the Supreme Court.

Sources: J. C. Bancroft Davis, Federal Courts Prior to the Adoption of the Constitution, appendix to United States Reports Volume 131, 1888; Journals of the Continental Congress, Volumes 21 through 32; Frederick W. Gnichtel, The Trenton Decree of 1782 and the Pennamite War, 1920

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