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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --WEDNESDAY, AUGUST 28, 1782
Mr. [Daniel] Carroll, a delegate for Maryland, and Mr. [Ezra] L'Hommedieu, a delegate for New York, attended, and took their seats.
The secretary, pursuant to order, prepared the draught of a commission, which was agreed to as follows:
THE UNITED STATES IN CONGRESS ASSEMBLED.
To all whom it may concern:
Whereas the 9th Article of the Confederation provides that "the United States in Congress assembled shall 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 legislature 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
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day appointed, without shewing 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 or 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 of1 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 favour, affection or hope of reward:" provided also, that no State shall be deprived of territory for the benefit of the United States. And whereas, the president and supreme executive council of the State of Pensylvania did, on or about the 3d day of November, in the year of our Lord one thousand seven hundred and eighty-one, present a petition to the United States in Congress assembled, stating "that a controversy has long subsisted between the said State of Pensylvania and the State of Connecticut, respecting sundry lands lying within the northern boundary of the State of Pensylvania, and praying for a hearing in pursuance of the 9th Article of the Confederation;" whereupon notice was given to the State of Connecticut, and a day was assigned for the appearance of the parties by their lawful agents, at the place in which Congress should then be sitting: and whereas, in pursuance of the said notice, the states of Pensylvania and Connecticut appearing before Congress by their lawful agents, to wit, on the 16th day of July last, they were directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question agreeably to the 9th Article of the Confederation. And whereas, the said agents, by two instruments of writing, the one dated the 8th, and the other the 21st of the present month of August, both signed by them and lodged among our archives, have certified, "that in pursuance of the said direction, they have met and conferred together and by joint consent have appointed the following gentlemen
[Note 1: 1 From this point the entries in the Journal are by George Bond.]
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as commissioners to constitute a court for hearing and determining the matter in question between the said states, that is to say, the Hon. William Whipple, esq. of New Hampshire; the Hon. Welcome Arnold, esq. of Rhode Island; the Hon. David Brearley and William Churchill Houston, esqrs. of New Jersey; the Hon. Cyrus Griffin, Joseph Jones and Thomas Neilson, esqrs. of Virginia; any five or more of whom to constitute a court and have authority to proceed and determine the matters in difference between the said states." And by another instrument of agreement, bearing date the 21st day of August, 1782, and signed by them, the said agents, and lodged among our archives, have, among other things, requested Congress to approve the appointment, by the said agents, of the said Hon. William Whipple, Welcome Arnold, David Brearley, William Churchill Houston, Cyrus Griffin, Joseph Jones, and Thomas Neilson, esqrs. and to constitute them, or any five or more of them, a court of commissioners to hear and finally determine the dispute between the said states relative to their respective rights, claims and possessions, agreeably to the 9th Article of the Confederation; and that a commission be made out for them under the seal of the United States in Congress assembled, and signed by the President of Congress; and that the commissioners, or any five or more of them, do meet at Trenton, in New Jersey, on Tuesday the twelfth day of November next, and have power to adjourn, from time to time, and place to place, as they shall judge it necessary, until they shall make a final decision in the said cause. Now be it known, that in virtue of the authority vested in us as aforesaid, and in consequence of the before mentioned appointment and agreement, we have caused these our letters patent to be issued, constituting and declaring, and we do hereby constitute and declare the said William Whipple, Welcome Arnold, David Brearley, William Churchill Houston, Cyrus Griffin, Joseph Jones and Thomas Neilson, or any five or more of them, to be a court of commissioners, with all the powers, prerogatives and privileges incident or belonging to a court, to meet at Trenton, in the State of New Jersey, on Tuesday the twelfth day of November next, to hear and finally determine the controversy between the said Commonwealth State of Pensylvania and the State of Connecticut, so always as a major part of the said commissioners, who shall hear the cause, shall agree in the determination; and if any of the parties shall refuse to submit to the authority of the said court, or to appear or defend their claim or cause, the said court shall nevertheless proceed to pronounce sentence or judgment, and the judgment or sentence of the court shall be final
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and conclusive; 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 favour, affection or hope of reward": provided also, that no State shall, by their said judgment, be deprived of territory for the benefit of the United States; and in case a sufficient number of the commissioners do not meet on the day assigned to form a court, we do hereby authorise and empower any one or more of the said commissioners, to adjourn from day to day, or from time to time, until a number meet sufficient to make a court; and we do hereby authorise and empower the said court to adjourn from time to time, and place to place, as they shall judge it necessary, until they shall make a final decision in the said cause. In testimony whereof, we have caused these our letters and commission to be made patent.
Given under our seal, and signed by his Excellency John Hanson, President, in Congress, this 28th day of August, one thousand seven hundred and eighty-two, and in the seventh year of our independence.1
[Note 1: 1 A copy of this commission, in Thomson's writing, is in the Papers of the Continental Congress, No. 49, folio 85.]
Ordered, That notice be sent to each of the commissioners above-mentioned, to meet at the time and place appointed.
War Office, August 27th, 1782.
Sir,
By the resolves of Congress of the 8th of April last the Paymaster General is to pay on the warrants of the Secretary at War, the pay and rations of the Army, and on warrants from the Commander in Chief, and the Commanding officer of the Southern Army all contingent expences.
No provision is made for the payment of such contingent expences as may be incurred in the absence of the Commander in Chief or the Commanding officer of the Southern Army--as is the case of Captain de Bert of Colonel Armand's Legion, who is now here on public business, and whose account I have the honor to enclose.
I am myself so convinced of the necessity of his absence from his Corps, and the justice of his charge, that had I supposed myself authorised to have ordered payment I should have done it, and not have troubled Congress with so inconsiderable an application.
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I wish their directions in this matter, and what mode in like cases shall in future be pursued.1
[Note 1: 1 This report is in the Papers of the Continental Congress, No. 149, I, folio 615. It was referred, the indorsement states, to Mr. [Ezekiel] Cornell, Mr. [Samuel John] Atlee, Mr. [Daniel] Carroll, and the Secretary at War was ordered "to take order in the case of Captain de Bert."]
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