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The Settlement of Inter-State Disputes

Published online by Cambridge University Press:  04 May 2017

Robert Granville Caldwell Ph.D.
Robert Granville Caldwell Ph.D.*
Affiliation:
Rice Institute, Houston, Texas
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Extract

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. 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.

Type
Research Article
Information
American Journal of International Law , Volume 14 , Issue 1-2 , January 1920 , pp. 38 - 69
Copyright
Copyright © American Society of International Law 1920

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References

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

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.

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.

6 12 C. L. R. 704.

7 E.g., Constitution of Mexico (1917), Art. 105; Argentina, Arts. 100, 101.

8 Switzerland, Constitution, Art. 110.

9 Constitution of German Empire, Art. 76.

10 1 Vesey Sen. 444.

11 5 Moo. P. C. C. 259.

12 3 & 4 William IV (1833), Ch. 41; St. R. and O. Revised, 1903, VI, 265.

13 Art. 106.

14 Att’y Gen. Nova Scotia v. Gregory, P. C. 11, App. Cases, 229.

15 Section 142.

16 1903 Appeals Cases, 39; 1910 A. C. 509.

17 8 Exchequer Reports, 174; 10 E. R. 292.

18 R. S. O. 1877, Ch: 37.

19 R. S. C. 1906, Ch. 140.

20 1 piowd. 336.

21 Att’y General of British Columbia v. Att’y General of Canada, Appeals Cases, 1889.

22 Att’y General of Manitoba v. Att’y General of Canada, 8 E. R. 337 (1903).

23 Att’y General of British Columbia v. Att’y General of Canada, C. R. 1906, A. C. 389.

24 This case came to the Privy Council by special leave. 1910 A. C. 301.

25 Section 75.

26 Quick and Garran, Constitution of the Australian Commonwealth, p. 774.

27 Sections 56, 34.

28 Dalgarno v. Hannah, 1903. I. C. L. K. I.

29 1 C. L. R. 329.

30 Constitution, Sec. 93.

31 C. L. R. 349.

32 3 C. L. R. 807.

33 4 C. L. R. 1497.

34 4 C. L. R. 1512, 1513. ‘

35 24 Howard 66.

36 6 C. L. R. 214.

37 C. L. R. 179.

38 The sections in the Constitution which deal with appropriations, 81, 87, 93, 94, are not easy to reconcile with one another. Section 87 seems to contemplate an annual return rather than a monthly return of surplus revenue.

39 12 C. L. R. 667; 18 C. L. R. 115 (1914).

40 Jameson, Essays in the Constitutional History of the United States, 44, 45.

41 J. C. Bancroft Davis, in appendix to 131 U. S. 50–63.

42 Journals of Congress, III, 685, 688; IV, 40, 42, 47, 59, 64–66, 129–140.

43 Ibid., IV, 65.

44 Ibid., IV, 140.

45 Appendix, 131 U. S. 50–63.

46 Art. I, Sec. 10.

47 Art. III, Sec. 2.

48 Art. III, Sec. 2.

49 Act of Sept. 24, 1789, Chap. 20, 1 Stat. L. 80.

50 Farrand, Records of the Federal Convention, 1, 19, 22, 224, 238.

51 Farrand, Ibid., II, 147, 160, 170, 173, 401, 430, 576, 600. Pinckney submitted resolutions to the committee extending the jurisdiction of the Supreme Court to controversies between the United States and an individual State, or the United States and citizens of an individual State. These were inserted in the draft of the committee on August 22. Ibid., II, 342.

52 Farrand, Records, II, 430.

53 Elliot’s Debates, 2d ed., III, 543, 555, 557, 566, 567; Federalist, 39, 80.

54 Elliot’s Debates, II, 490, 491.

55 Federalist, 81.

56 Ibid., 81.

57 Elliot’s Debates, III, 523, 532.

58 Federalist, 81.

59 New York v. Connecticut (1799), 4 Dallas 1, 3, 6: New Jersey v. New York (1831), 5 Peters 461, 5 Peters 284, 6 Peters 323, 755; Rhode Island v. Massachusetts (1838–1840), 7 Pet. 651, 11 Pet. 226, 12 Pet. 657, 755, 13 Pet. 23, 14 Pet. 210, 15 Pet. 233, 4 Howard 591; Missouri v. Iowa (1849), 7 Howard 659, 10 Howard 1; Florida v. Georgia (1854), 11 Howard 293, 17 Howard 478; Alabama v. Georgia (1860), 23 Howard 505.

60 United States v. North Carolina, 136 U. S. 211; United States v. Texas, 143 U. S. 621; United States v. Michigan, 190 U. S. 196.

61 United States v. Lee, 106 U. S. 196. See also similar dictum in Mississippi v. Johnson, 11 Howard 293. South Carolina v. U. S., 199 U. S. 437, and United States v. Louisiana, 123 U. S. 32, are interesting examples of cases between the United States and a State, coming to the Supreme Court on appeal after being brought in the Court of Claims against the United States by its own consent.

62 Kansas v. United States, 204 U. S. 331; Minnesota v. Hitchcock, 189 U. S. 373; Louisiana v. Garfield, 211 U. S. 70; New Mexico v. Lane, 243 U. S. 53.

63 New York v. Connecticut (1799), 4 Dallas 1, 3, 6; New Jersey v. New York (1831), 3 Peters 461, 5 Pet. 284, 6 Pet. 323; Rhode Island v. Massachusetts (1838–40), 7 Peters 651, 11 Pet. 226, 12 Pet. 657, 12 Pet. 755, 13 Pet. 23, 14 Pet. 210, 15 Pet. 233, 4 Howard 591; Missouri v. Iowa (1849), 7 Howard 659, 10 Howard 1; Florida v. Georgia (1854), 11 Howard 293, 17 Howard 478; Virginia v. West Virginia (1870), 11 Wallace 39; South Carolina v. Georgia (1876), 93 U. S. 4; Virginia v. Tennessee (1893), 148 U. S. 503, 158 U. S. 267; Maryland v. West Virginia (1910), 217 U. S. 1, 217 U. S. 577, 225 U. S. 1; North Carolina v. Tennessee (1915), 235 U. S. 1, 240 U. S. 652.

64 Alabama v. Georgia (1860), 23 Howard 505; Missouri v. Kentucky (1870), 11 Wallace 395; Indiana v. Kentucky (1890), 136 U. S. 479; Nebraska v. Iowa (1891), 143 U. S. 359; Iowa v. Illinois, 147 U. S. 1, 202 U. S. 59; Missouri v. Nebraska (1904), 196 U. S. 23; Louisiana v. Mississippi (1905), 202 U. S. 1; Washington v. Oregon (1908), 211 U. S. 127; Missouri v. Kansas (1908), 213 U. S. 78; Arkansas v. Tennessee (1918), 246 U. S. 158.

65 Kansas v. Colorado, 185 U. S. 125, 206 U. S. 46; Missouri v, Illinois, 180 U. S. 208, 200 U. S. 496, 202 U. S. 598; Louisiana v. Texas, 176 U. S. l. To these decisions should probably be added Georgia v. Tennessee Copper Co. (1907), 206 U. S. 230, which was virtually a suit between two States. To this same class belongs the interesting controversy between New York and New Jersey, argued before the court November 8, 1918, and still undecided. New York seeks to prevent the pollution of New York harbor by sewage from Passaic.

66 New Hampshire v. Louisiana (New York v. Louisiana) (1883), 108 U. S. 76; South Dakota v. North Carolina (1904), 192 U. S. 286; Virginia v. West Virginia (1906–1918), 206 U. S. 290, 209 U. S. 514, 220 U. S. 1, 222 U. S. 17, 231 U. S. 89, 234 U. S. 117, 238 U. S. 202, 241 U. 8. 531, 246 U. S. 565.

67 246 U. S. 565.

68 246 U. S. 565.

69 United States v. Yale Todd, 13 Howard 52, note; Marbury v. Madison, 1 Cranch 137; Florida v. Georgia, 17 Howard 504.

70 in U. S. 449, 123 U. S. 32; 4 Blatchf. 50.

71 220 U. S. 27.

72 1 Wash. Terr. 269, 5 Peters 1, 2 Cranch 445.

73 17 Howard 478, 143 U. S. 621, 162 U. S. 1. No one has stated the principle of the independence of the original jurisdiction of the court more clearly than Taney in Kentucky v. Denison: “In all cases where original jurisdiction is given by the Constitution, this court has authority to exercise it without any further Act of Congress to regulate its process or confer jurisdiction.” 24 Howard 98.

74 New Jersey v. New York, 3 Peters 465–6.

75 Rhode Island v. Massachusetts, 14 Peters 210.

76 This question of the right of a State to sue in a controversy over lands when it did not own the property involved arose in the earliest cases. Fowler v. Miller (1799), 3 Dallas 411, was the first case involving the jurisdiction of the Supreme Court in interstate disputes. Fowler claimed land under a Connecticut grant in a region also claimed by New York. New York tried to remove the case from the Circuit to the Supreme Court on the ground that it was virtually a suit between States subject to the exclusive jurisdiction of the higher court, and because she said that a fair trial could not be secured in the Circuit Court for the District of Connecticut. This application was denied, the court distinguishing between claims of private individuals like Fowler and the claims of States to the territory in question. The States were not regarded as either nominally or substantially parties to the suit. But in the course of his opinion Mr. Justice Washington gave the following significant hint: “The State of New York might, I think, file a bill against the State of Connecticut, praying to be quieted as to the boundaries of the disputed territory; and this court, in order to effectuate justice, might appoint commissioners to ascertain and report those boundaries.”

Acting on this wise hint, a suit was brought at the next term of the court by New York against Connecticut, in which the plaintiff State sought to prevent Connecticut or Fowler by injunction from claiming the lands in question. The Attorney General of New York cited Penn v. Lord Baltimore, and argued very convincingly that this was precisely the kind of a case in which the Constitution expected the Supreme Court to assume jurisdiction. “The bill,” he said, “is emphatically a bill of peace; since, considering the parties to the principal controversy, without this remedy the consequences upon the public tranquillity can hardly be conjectured.” This line of reasoning appealed strongly to Justice Patterson, who said: “If the grantees of New York are thus evicted, they will bring suits in New York on their possession. But where will this feud and litigation end? It is difficult and painful to conjecture, unless this court can, under the Constitution, lay hold of the case to decide the question of boundary, which will be the decision of all the appendages and consequences.” But in spite of the evident weight of these contentions, the court was evidently afraid to assume the necessary jurisdiction, and decided that New York was not a party to the suit since she did not directly own the land in question. (New York v. Connecticut, 4 Dallas 1.)

The result of this early failure was to throw the States back on voluntary agreements, and to reduce the quasi-international jurisdiction of the Supreme Court to a nullity. More than thirty years passed before it first assumed jurisdiction in a boundary dispute, in the case of New Jersey v. New York, 5 Peters 284. It was left to the bold genius of John Marshall to assume this great constitutional power, as he had earlier in his career assumed the power to declare the laws of Congress unconstitutional. Marshall said in this case that, although Congress had passed no act for the special purpose of prescribing the mode of procedure in suits instituted against a State, the court might exercise its original jurisdiction “under the authority conferred by Congress and the existing Acts of Congress.”

New Jersey v. New York was never pushed to a conclusion, so that the case of Rhode Island v. Massachusetts (12 Peters 657), decided in 1838, is the first in which the Supreme Court actually settled a controversy between two States. The most grave objection against the jurisdiction of the court was that the question of boundary was a political question in which the court would be unable to enforce its decree. This argument was urged with great force by Daniel Webster in behalf of Massachusetts, but did not convince the majority of the court, which assumed full jurisdiction, in spite of the dissent of Chief Justice Taney. These two cases laid at rest any question as to the ability of the court to settle controversies regarding boundaries, even when State property is not directly involved. Since that time, as we have seen, the Supreme Court has frequently recognized that the State “has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.” (Justice Holmes in Georgia v. Tennessee Copper Co. (1907), 206 U. S. 230.)

77 Kansas v. Colorado, 206 U. S. 98.

78 “When a line has been once run and has afterwards been acquiesced in for a long number of years by two States, the court will establish it, although it varies from the original course in the charter, and although it may not be a straight or uniform line.” (Maryland v. West Virginia, 217 U. S. 19.)

79 Constitution of the United States, Art. I, Sec. 10; Virginia v. West Virginia, 11 Wallace 39; Virginia v. Tennessee, 148 U. S. 503.

80 South Carolina v. Georgia, 93 U. S. 4.

81 Iowa v. Illinois, 147 U. S. 1; Arkansas v. Tennessee, 246 U. S. 158.

82 Indiana v. Kentucky, 136 U. S. 479; Washington v. Oregon, 211 U. S. 127.

83 Arkansas v. Tennessee, 246 U. 8. 158; Nebraska v. Iowa, 143 U. S. 359; Missouri v. Nebraska, 196 U. S. 23.

84 Alabama v. Georgia, 23 Howard 505. Although the boundary of Kentucky reaches “low” water mark on the north shore of the Ohio, and though Maryland reaches “low” water mark on the south shore of the Potomac, a careful reading of the cases involved shows that these are not really exceptions to the rule laid down in Alabama v. Georgia. The word “low” is used with reference to freshets rather than to more unusual droughts. Handley’s Lessee v. Anthony, 5 Wheaton 374; Maryland v. West Virginia, 217 U. S. 1.

85 Kansas v. Colorado, 185 U. S. 125, 206 U. S. 46.