The Articles of Confederation made no provision for the creation of any executive department, and the judicial powers which it conferred upon the new Federal government were of the most restricted character. The ninth article gave Congress the power of "appointing courts for the trial of piracies and felonies committed on the high seas, and establishing courts for receiving and determining finally, appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts."

Under this authority a permanent court of appeal in prize cases of three judges was created in 1780. This court lacked the independence of the Federal courts under the Constitution, and in several instances action was taken by Congress relative to pending cases. No permanent court was ever established for the trial of piracies and felonies on the high seas. By an act of Congress 4 it was provided that the justices of the Supreme or Superior Court of judicature, and the judge of the Court of Admiralty of the several and respective states, or any two or more of them, were designated as being constituted and appointed judges for hearing and trying such offenders.

Provision was also made in the Articles of Confederation for the settlement of controversies between different states or between persons claiming land under grants from different states. The second and third clauses of the ninth article were as follows:

'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 Courts 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 that no State shall be deprived of territory for the benefit of the United States.

4 Journals of Congress, Volume VII, p. 65.

"All controversies concerning the private right to 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."

There is but one instance of a trial and judgment under the auspices of Congress of a controversy between states. The case in question was the famous dispute between Pennsylvania and Connecticut over the Wyoming Valley.5 This controversy, which arose out of the overlapping of the early grants to Pennsylvania and Connecticut, was decided in 1782 in favor of Pennsylvania. Several other disputes between different states were referred to Congress and reached various stages of development, but were all finally settled by agreement between the contending states.6

5 For an account of the case see Carson's "History of the Supreme Court of the United States," Volume I, pp. 67-73.

6 Some of these controversies were as follows: (a) Between Pennsylvania and Virginia over the Mason and Dixon's line, in 1779. (b) Between Virginia and New Jersey over a tract of land in Ohio, in 1784. (c) Between Massachusetts and New York in 1784, over a land dispute. (d) Between South Carolina and Georgia in 1786 over the jurisdiction over the upper waters of the Savannah River. (e) Several disputes relative to the sovereignty over the territory of Vermont.