USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 5
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(42) Ist Proud, 170.
(43) Chalmers, 657.
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
York, a grant of the Delaware settlements, inasmuch as without such grant, he had now reason to fear the loss of the whole peninsula. His earnest desires were at length gratified by the Duke, who conveyed to him in August, 1682, the town of New Castle, with all the territory for twelve miles around it, and also the territory extending southward from it, even to Cape Henlopen, and at the same time released to him all claims which he might have to the territory, included in the grant of Pennsylvania. (44) It is unnecessary here to remark upon this conduct of the one, in granting that to which he had no title, and of the other, in seeking for and accepting such a grant, with a full knowledge of its invalidity, for the single pur- pose of enabling himself to encroach upon Baltimore's territory under colour of right. The judgment of history has already been passed upon it, and we, of this day, who listen to nothing but the plaudits of Penn, may learn from a contrast of these, not only with his conduct on this occasion, but throughout his proprietary transactions with Baltimore, ---- "how effectually success will often gild usurpation and sanctify wrong." Penn was now doubly armed; and fortified by this grant and release, his original grant and a letter from Charles II. directing the proprietary of Maryland to assent to a speedy adjustment of his northern boundaries, and in that adjustment to determine them by mea- suring from his southern boundary two degrees to the north, reckoning sixty miles to the degree, he speedily repaired in per- son to his province, and sought an interview with Lord Balti- more. He was now as eager to adjust his boundaries under these new circumstances, and in conformity to the king's letter, as he was formerly anxious to cvade their adjustment after the disco- very at Upland. His wishes for an interview were gratified; and it accordingly took place between him and Lord Baltimore, with- in the province of Maryland, in December, 1652: when the letter of king Charles was submitted to the latter, and his compliance with it requested. Baltimore received it with respect, but remark- ed with reference to the mode of adjusting his boundaries pre- scribed by it, " That his majesty's directions were surely the re- sult of misinformation, as his (Baltimore's) patent granted no spe- cific number of degrees, but merely called for the 10th degree of
(44) Ist Proud, 200.
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OP THE STATE OF MARYLAND. 1
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north latitude as its northern limit, and that such being the right granted by his patent, no royal mandate could deprive him of that right." Obedience to it being thus respectfully declined, Penn professed his willingness to waive this mode of adjustment, and to admit the 40th degree as the boundary, provided it were as- certained not by actual observation, but by mensuration from the Capes of Virginia, the latitude of which had already been ascer- tained. This proposition was also declined, and thus ended a fruitless conference of three days: In May, 1683, another meet- ing took place at New Castle, which was followed by the same result, and which put an end to all hopes of an amicable termina- tion of their controversy. Accounts of those negotiations were transmitted by each party to the commissioners of trade and plan- tations : and in these, as is usual in such cases, each party attri- buted to the other the whole failure of the negotiations. In the representations of these, made by Penn, he discloses to us the causes of his extreme anxiety to avoid an adjustment according to the strict letter of Baltimore's patent. "I told him (says Penn in detailing his negotiations) that it was not the love or need of land, but the water ; that he abounded in what I wanted, and had access to it, and has carriage even to excess, and because there is no proportion in the concern, for if I were a hundred times more urgent and tenacious, the case would excuse it, because the thing insisted on, was ninety-nine times more valuable to me than to him,-to him the head, to me the tail. I added, that if it were his planting, it would recompense the favour not only by laying his country between two thriving provinces ; but the ships that yearly come to Maryland, would have the bringing of our people and merchandise, because they can afford it cheaper, whereby Maryland would for an age or two become the mart of trade." (15) Wc, of this day, cannot but be amused with these delusive prospects of gain, held forth by Penn to Baltimore, as an inducement for the surrender of his territory, and at their sin- gular inconsistency with his avowed purpose in desiring the sur- render. He tempts Lord Baltimore with the hope that his colo- nists will be the carriers of the trade of Pennsylvania for an age or two, and at the same time desires the surrender of the lands
(45) See Penn's account of these negotiations, in Chalmers, 661-66. 1st. Proud 267 to 274.
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
along the Delaware, that he may secure to himself the navigation of that river, and a direct water-outlet for the trade of his province. When we witness his extreme anxiety to secure this in all his intercourse with Lord Baltimore, we almost imagine that his pro- phetic spirit had looked into futurity, and saw the day not far dis- tant, when "the genius of the empire would westward wing her way;" and by the aid of the advantages which he sought, the howling wilderness would be metamorphosed into the cultivated, popu- Jous and smiling land, luxuriating in peace and plenty, and there would start up as if by magic, one of the chief commercial empo- riums of the first republic of the world. 1
In these representations we find him preparing to Objections urged against the char - ter of Maryland. assail Lord Baltimore with new objections. He had relied in the first instance upon his grant of Pennsylvania; but the observation at Upland had satisfied him that this would not avail him. He threw himself next upon the grant from the Duke of York and the king's letter; but in the face of all these, he found Baltimore resting firmly, and with confi- . dence upon the imperative terms of his charter. To shake this confidence it now became necessary to assail that charter: and hence in these representations we find Penn objecting to it be- cause the Delaware settlements had been purchased and planted by the Dutch before that charter was granted; and that even if Baltimore had acquired a right to them under the patent, he had forfeited it by suffering others than his colonists to retain posses- sion of them for forty years. This objection, which will be found to have governed the decision of the commissioners of trade and plantations in 1685, and to have ultimately deprived Baltimore of that portion of the peninsula which now forms the State of Dela- ware, did not originate with Penn. It will be found amongst the objections urged against the charter, and in support of the claims of Virginia, whilst the government of Maryland was in the hands of the protector's commissioners ; and it was strenuously urged by the Dutch ambassadors in 1659, in the vindication of their title to the territory along the Delaware; in which they object to the efficacy of the patent, because it granted only such lands as were uncultivated and uninhabited. (16) In the close of his re-
(46.) Hazard's Collections, Vol. Ist. 594 to 680. Council Proceedings of Maryland, Liber II. II. 48 to 54.
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Chap. I.] 1 OF THE STATE OF MARYLAND.
presentations to the board, Penn requested, "that the boundaries of Maryland might be determined by the judgment of ancient times: and that Baltimore might be required to measure his two degrees at sixty miles the degree, and that the fortieth degree might be ascertained by measurement at that rate from Watkin's Point:" which he urges by the emphatic remark, " that a province lay at stake in the success of his request." From this period he denied the validity of the grant as to the eastern side of the pe- ninsula : and in 1684 he repaired in person to England to urge an application for a new grant, including the disputed territory. Baltimore's ef- Throughout this controversy, and indeed from the tlements on the moment of the withdrawal of the Dutch beyond forts to make set.
disputed .territo- ry.
Cape Henlopen, and the subjection of the settlements along the Delaware river to the government of New York, the proprietary and his officers incessantly labored to extend the Maryland settlements to Cape Henlopen, and thence north to and along the Delaware. The council proceedings of this period abound with injunctions to this effect, emanating both from the proprietary and from his governors, and with propositions to set- tlers of a most inviting character. (47) Had these been attended with the desired results, and had the proprietary succeeded in planting numerous and thriving settlements along the Delaware before these objections to the patent were started by Penn, it is probable that his possessions would not have been disturbed. He did not, however, succeed in effecting this, before the grant to Penn from the Duke of York, of the Delaware settlements : and from that period Penn's strenuous opposition to the extension of his settlements, deterred many from accepting of the proffered terms.
After the failure of these efforts at an amicable adjustment in the interviews above alluded to, and before the departure of Penn to England, to urge his application for the grant along the Dela- ware, Baltimore, in September, 1683, through Colonel George Tal- Adjudication of bot, formally demanded the surrender of all the lands the board of lying on the west side of Delaware river, and south trades and plan-
tations. of the 40th degree of latitude, according to a line run due east and west from two observations, the one made on
(47) See Council Proceedings, Liber C B. pages 7, 23, 24, 25, 48, 100. Lib. R. R 122 and 2d part do. 62 and 76.
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
the 16th of June, 1632, and the other on the 22d of Septem- ber afterwards. This demand was resisted by Penn in a reply of great length, in which, after setting forth many objections to the manner and circumstances of the demand, he urges as a bar to it, the previous possession of the Dutch, Lord Baltimore's neglect to conquer them, and his (Penn's) grant from the Duke of York. (48) It was, perhaps, owing to this de- mand, that Penn was induced to repair to England in person to press his application for a new grant. It taught him that Balti- more was not disposed to sleep upon his rights, nor to permit him to engross his territory by gradual and silent encroachments : and he now perceived the necessity of an instant and vigorous opposition to Baltimore's claims under his charter. No course was left open but to attack the charter, and the best mode of ef- fecting this, was by seeking a new grant for the territory alleged to be unaffected by it, whilst Baltimore was resting with confi- « dence upon it, and not even expressing a desire for its confirma- tion. Penn's application was judicious in its nature, and well timed as to the circumstances under which it was preferred. The proprietary was, at that very period, under the displeasure of the crown, in consequence of certain differences between him and the collectors of the royal customs: and had but little to hope from its favor. The application had been preferred by Penn be- fore his return to England: and notwithstanding the strenuous and unremitting opposition of the proprietary, its consideration had been referred by the king, to the commissioners of trade and plantations, in May, 1693, and Penn's visit was intended to produce a favorable and speedy adjudication. He was success- ful; for in November, 1685, that board decided that Lord Balti- more's grant included only " lands uncultivated and inhabited by savages, and that the territory along the Delaware, had been sct- tled by christians antecedently to his grant, and was therefore not included within it," and they directed that to avoid all future contests, the peninsula between the two bays should be divided into two equal parts by a line drawn from the latitude of Cape Henlopen, to the 40th degree of north latitude, and that the western portion belonged to Baltimore, and the eastern to his
(48) Ist Proud, 276 to 283.
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OF THE STATE OF MARYLAND ..
Chap. I.]
majesty and by consequence to Penn, to the confirmation of whose grant from king James this decision enured. (49)
At the period of this adjudication the exigencies of Baltimore's situation were such as to require, if not his prompt compliance
with, at least his silent submission to its mandates.
State of the con-
He was now inenaced with the total loss of his troversy from the
order of 1685 un- til 1718. grant, against which a quo warranto had already been issued; and resistance to the will of that monarch would only have served to hasten and ensure that loss. It was a dark period in the judicial history of England, when no chartered right was safe, if the king willed it. otherwise : and those who would escape the storm, found it necessary to bend before the blast. But an æra in the affairs of the mother country was now at hand, which with the revolutions it brought in its train, was destined for a time to overwhelm all these minor controversies. It came in time to save the charter of Maryland, and to suspend the exe- cution of the adjudication of 1685 : and it was followed by a series of revolutions in the condition of the two proprietaries, and the state of their respective provinces, under which the question of boundary from that period until the agreement of the 10th May, 1732, hereafter mentioned, was left to rest upon the unexecuted adjudication of 1685, and the state of facts in which that decision found the controversy .. The causes of its suspension for nearly half a century, will be found in the condition of the mother coun- try, and the provinces throughout that interval. The earnestness with which Penn had sought this adjudication, assures us that the actual location of their boundaries in conformity to it, would have been pressed upon Baltimore with the same eagerness and success with which the decision itself had been sought. James, his friend, his patron, and the author of his grant, was on the throne, and the charter of Maryland was already at the mercy of the crown. But for that monarch the day of retribution had at last arrived. The measure of his iniquities was full. He who had so long trampled upon the rights of others, was now to know and respect the rights and feel the indignation of an insulted people. He was expelled the throne, and the government of England was committed to William of Orange, by whom but little
. (49) Council Proceedings, liber X. 59 to 63. 5
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THE GRANT AND TERRITORIAL LIMITS
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respect was paid to the unjust, arbitrary and partial decisions of his predecessor. The anti-catholic feeling which was generated by the occurrences that preceded and attended the revolution, which seated William on the throne, soon extended itself to the province of Maryland, and became the rallying point for all the mal-contents of the province. who wished to shake off the rule of the proprietary. The spirit of ambition and misrule always mask themselves behind some plausible pretext of public good, or some seeming carnestness for the general welfare : and in that age the cry of " No Popery," was the watchword in the mouths of many whose services to the holy Protestant church had never extended beyond lip-service, and whose whole lives had been an illustration of practical infidelity. In tliese considerations we find enough to account for the existence of the Protestant association, which was formed within the province at this period by John Coode and others, for the avowed purpose of shaking off the proprietary gov- · ernment. The proprietary was indeed a catholic : but whatever his religious feelings or his political inclinations, the records of that day furnish us with no evidence of his attempts to propagate them by the persecution of his subjects : and when we contrast his gentle sway with that of those who were the leaders in this association, we are ready to exclaim "Oh. religion, how many sins are committed in thy name." The association was success- ful, and in the year 1689, the government of the province passed from the proprietary into the hands of the leaders of this associa- tion ; and being shortly afterwards in 1690-91 taken from these self-constituted rulers, it became and remained a royal govern- ment until 1716. During all this period, it was, as other royal colonial governments, administered under the crown, and the proprietary, stript of his powers of government, was the mere proprietor of the soil and of the rights incident to its ownership. It would therefore have been useless and unwise on the part of Penn, whatever his situation, to have pressed upon the English crown, an adjudication founded upon his personal favour with the expelled monarch, and contracting the boundaries of a province which had fallen directly under the royal rule. To these consid- erations were added others flowing from the peculiar relation in which Penn stood with reference to the old and new governments. With James he had been a favourite: and his favour with that
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OF THE STATE OF MARYLAND.
Chap. I.]
monarch, and his tardy movements in support of the revolution, induced those who were prominent in it, to rank him amongst the . disaffected. Hence he was twice or thrice summoned before the privy council, and held to bail upon the charge of defection from the newly established government: and at length in 1692, he was deprived of the government of Pennsylvania and its territories, which was then assumed by the crown. (50) In August, 1694. he was restored to his government, but not to such favour with the king as allayed all his fears as to his old possessions : and these fears were revived in their full force by an effort made in the English Parliament, in the year 1701, to convert his and the other proprietary governments into royal governments. (51) His re- turn to England and the death of king . William, relieved him from this new danger; and the elevation of Anne to the English throne, again brought him into favour at court. This interval of royal protection he did not fail to improve : for we are informed that he twice petitioned Anne for a further hearing upon the subject of these boundaries; and that his wish being accorded, the order of 1685 was reconsidered, ratified and ordered to be in- stantly carried into execution. (52) And now that Penn had again attained to the summit of his wishes, his situation had again become such, as to debar him from the full benefits of the decision. The establishment of his colony had involved him in pecuniary difficulties, from which he could extricate himself only by a mortgage of his province. The discontents of his colonists added much to the difficulties of the moment: and disease had stripped him of much of that energy which was necessary for the exigencies of his condition. Weary of these embarrass- ments, and sinking under the difficulties of his situation, he at length in 1712, contracted with queen Anne for the sale of his provinces. An attack of the apoplexy at the moment of the consummation of this contract, disabled him from making a valid surrender of his province : and in the state of mental imbecility which this begat, he lingered until his death in 1718. The cir- cumstances which prevented this surrender after his death, it is unnecessary to detail, and it will suffice to say that the govern-
(50) 1st Proud, 347 and 377.
(51) Ist Proud, 403.
(52) Ist Proud, 294.
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THIE GRANT AND TERRITORIAL LIMITS
[Intro.
ment of his province, was committed after his decease, and in conformity to his devise, to his three sons by his last marriage, John, Thomas and Richard Penn.
During the long interval between the order of 1685, and the accession of these proprietaries, which was but a few years after the restoration of the proprietary government in Maryland, there were doubtless many border contests for the debatcable territory ; but, with reference to the actual state of the controversy between State of the con- these proprietaries, and the effects which they pro- troversy from duced upon them, they are about as important and 1718, until the
agreement of May, 1732. worthy of consideration as were the wars of the Pig- mies and the Storks. Both provinces being now in the undisturbed possession of their respective proprietaries, this interesting; and to both, important .controversy, was revived in the very year after the accession of the younger Penns, by grants emanating from the government of the latter, and more especially of a tract of land or manor called Nottingham, as lying within the county of Chester, and within which the justices of Cecil undertook to exercise their jurisdiction, and to levy taxes. To adjust this difference, an interview took place between Hart, governor of Maryland, and Keith, governor of Pennsylvania, which resulted in a mutual agreement to preserve the good understanding be- tween the provinces until the difference could be adjusted. In March, 1722, this subject was again brought under the consider- ation of both governments, and again resulted in the same tem- porary agreement, and in a proposition for a future interview which does not appear to have been held. This controversy is principally worthy of notice, because of the new ground assumed by the disputants on the part of Pennsylvania. In a paper sub- mitted by the governor of Maryland to his council, which was entitled, "A plain view of all that has been talked of or done for twenty years past, as to the boundaries between Pennsylvania and Maryland." It is alleged that Baltimore himself had deter- mined the extent and boundary of his own grant, by an actual observation made in 1683, and by then running a line from a point at or near the mouth of Octorara creek in Cecil, due east to the Delaware: and that this line by which Baltimore himself had excluded all his pretentions to the territory north of the Octorara, and by consequence to the Nottingham grant, had ever
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Chap. I.]
since been regarded as the boundary line of the two provinces. It is also alleged that in 1700, Penn having occasion to pass up the Chesapeake Bay, on a visit to the Susquehanna Indians, was accompanied by several citizens of, Maryland as far as the mouth of Octorara Creek, where they excused themselves from further attendance upon him, by the observation, that they had now ac- companied him into his own territory. Whence this "plain view" came, and by what authority prepared or sanctioned, the Council Proceedings do not inform us: yet, although it does not purport to be an official paper, emanating from the government of Pennsylvania, [it seems; from the manner in which it was preferred to, and received by the council of Maryland, to have been regarded as having the sanction of the former government. Although this paper was respectfully received, its allegations, as to the establishment and universal reception of the boundary line from Octorara, were not admitted to be true, and the depositions of several persons were ordered to be taken, for the purpose of controverting several of its material statements. It is, indeed, quite probable, from the language of some of Baltimore's instruc- tions, that some attempt was made in 1683, to ascertain these boundaries by actual observation, and perhaps, even the termini and course of the line were determined. Yet, besides the other objections set out by the council, it is obvious that, this survey being an exparte proceeding on the part of Baltimore, and not the result of a compact between him and Penn, nor obligatory upon the latter, could not conclude the former under any circumstances, and most clearly,, not in a case of palpable mistake. (53) From the period of this controversy until May, 1732, the good understanding between the two provinces was preserved by mere temporary expedients, which were every now and then set at nought by some act of border aggression and outrage; until the subject of difference was closed as far as a
. (53) The history of this controversy, of the causes which led to it, and of the various proceedings in connexion with it, may be collected from the Council Proceedings, Liber X. 59 to 63,-68 to 93,-193 to 196. It was attended with considerable excitement, because the claimants under Pennsylvania grants had not only extended their surveys into what were deemed the limits of Ma- ryland, but had also actually arrested Van Bibber, Chief Justice of Cecil, whilst engaged in a survey along the branches of Apoqueminiek Creek.
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