USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 6
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
mere agreement was effectual for that purpose, by the well known compact of 10th May, 1732, entered into between Lord Baltimore of the one part, and John; Richard and Thomas Penn, proprie- taries of Pennsylvania, of the other part.
This agreement, so far as it relates to the definition of the boundaries, was' a full concession of the claims of the latter, In determining the boundaries of their respective peninsular pos- Agreement of sessions, it provided that they should consist of a 'May 10th, 1732, line beginning at the easternmost part of Cape Henlopen, and running due west. to the exact middle of the peninsula at that point, and of a line running from that middle point in a northerly direction so as to form a tangent to a circle drawn around New Castle, with a radius of twelve miles. And thus it gratified the grant of 1682, from the Duke of York to Penn, the original proprietor, which, as has been seen, conveyed all the territory for twelve miles around New Castle, and thence southward to Cape Henlopen .. In adjusting the northern boun- dary of Maryland, which was also the southern boundary of Pennsylvania, it determined that that boundary should begin, not at the 40th degree of latitude, as called for by the charter of Maryland, but at a latitude fifteen English statute miles south of the most southerly part of Philadelphia; and that to connect this common boundary line with the boundary lines of their penin- sular possessions, it should begin upon the said tangent line, if it extended to that latitude, or if not, that then a line should be drawn due north from the point at which the tangent met the circle until it reached that latitude, and that the said boundary line between Maryland and Pennsylvania should then begin: and that beginning in said latitude, either on said tangent line, or said north line, as the case might be, it should run due west to the western extremity of the two states. As incidental to this agreement, there were incorporated into it several stipula- tions with reference to the navigation of rivers, flowing through both provinces, and as to the interests of grantees or occupants of lands lying within the debateable territory, which, for the pur- poses of the present enquiry, it is not material to notice. To carry it into effect, each of the contracting parties was required to appoint, within two months thereafter, not less than seven commissioners, under whose direction the survey of the boun-
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OF THE STATE OF MARYLAND.
Chap. Y.]
daries was to be completed on or before the 25th of December, 1733, and when completed, a plat of the survey, with an exact description of its courses and bounds, was to be signed both by the commissioners and the proprietaries, and entered on record in the public offices of the provinces. (54) In pursuance of this agreement, commissioners were appointed, between whom, at ' the very outset of the performance of their duties, differences arose as to the proper application of the terms of the agree- ment, and the manner of carrying it into execution, which at once put an end to this new effort at adjustment.
The result of it was, however, such as to give Baltimore cause to tremble for the extent of his concessions in that agreement: and now, for the first time, he sought to relieve himself from all Baltimore's ap- further controversy, by obtaining from King George plication to the King in coun- II. a confirmation of the charter, non obstante the cil, and result of it. words of description contained in it, which repre- sented it " as uncultivated, and inhabited by sarages." These unfortunate words, which the sagacity of Penn had turned to good purpose, in his objections to the charter, as obtained by misrepre- sentation at least as to the peninsular territory, had been the source of his most serious difficulties, and they now suggested an expedient which it would have been well for the proprietary of Maryland to have adopted in the very origin of the controver- sy. To adopt this expedient, was indeed to admit the force of the objection, and hence the tardy resort to it; yet it is proba- . ble, that if instead of relying with entire confidence upon the efficacy of the charter, the proprietary had, upon the first ap- pearance of this objection, petitioned for this confirmation, it : would have been at once accorded by the justice of the crown, and thus in all future contests, his claims would have rested upon an unquestionable chartered right. Fortified by this right, what- ever might have been the result during the reign of James, the principles of political liberty and the respect for chartered rights, which rose in triumph when he fell, must ultimately have restor- ed Baltimore to the full enjoyment of his original grant. As it was, the proprietaries of Maryland had suffered difficulty to ac-
(54) For a view of this agreement see the recitals of the agreement of 1760, hereafter alluded to, and also 2d Proud, 200, and Kilty's Landholder's Assistant, 170 and 171.
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
cumulate upon difficulty, and objection to spring upon objection, until it was too late to retrace their steps. Had the confirmation . been sought and obtained in the first instance, it would have been a preventive; but now it was applied for as a remedy, and only when all else had failed. The application thus made was strenu- ously opposed by the proprietaries of Pennsylvania, who inter- posed Baltimore's voluntary agreement and surrender of territo- ry as a bar to his application. . The result was; that for the pur- pose of testing the validity and conclusiveness of that agreement, by an order of the King in Council in 1735, the Penns were di- rected to institute proceedings in Chancery upon it, and the con- sideration of the petition was delayed to await the issue of those proceedings. The proceedings in Chancery were accordingly instituted in June, 1735, and the question of right involved in it, was thus suspended until the decree in 1750. (55).
"During this interval, some excesses of a frightful nature were committed on the borders of Lancaster and Baltimore counties. -
State of the boun-
The most prominent of these was, the attack upon
daries from the
agreement of the house of Thomas Cresap, a citizen of Maryland, 1732, until the which was made by a body of armed men from Penn- derree thereon in
1750. sylvania, who are said to have set fire to the house in which were Cresap and his family and several of his neighbours, and to have attempted to murder them as they made their escape from the flames. (56) .On the other hand it was alleged in recrimination by the government of Pennsylvania, that a body of armed men from Maryland, to the number of three hundred, had invaded the county of Lancaster in a warlike manner, and had resorted to the most violent measures during their incursions, to coerce submission to the government of Maryland. These border excesses, and the recent defection of many citizens of Baltimore county, who formally renounced their allegiance to the government of Maryland, were of so alarming a character, that the governor and council of Maryland, found it necessary to make a full representation of the facts, both to the proprietary and the King in Council. Their petition occasioned an order in council of August, 1737, by which the proprietaries were com- manded to put a stop to these excesses, and to use their utmost
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(55) See the recital of the agreement of 1760.
(56) Council Proceedings, Liber M, A. D. 1735.
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Chap. I.]
efforts to preserve peace between the two provinces: and as the best mode of accomplishing this, they were inhibited from making any grant of the disputed lands, and particularly in the three lower counties, and from suffering any person to make settlements therein, until his majesty's pleasure, with reference to the territory in question, should be signified to them. (57) The situation of the two proprietarics at that moment, and their desire to conciliate the crown, induced a ready compliance with this order in council, to carry which into effect, an agree- ment was entered into between them in May, 1738, which pro- vided for the running of a provisional and temporary line between the provinces, which was not to interfere with the actual posses- sions of the settlers, but merely to suspend all grants of the disputed territory as defined by that line, until the final adjust- ment of the right. This agreement was approved of by the king, and ordered to be carried into execution, and, in pursuance of it, in 1739 the provisional line was actually run. (58)
Decree upon the Upon the proceeding in Chancery, a decree was agreement . of 1732. pronounced by chancellor Hardwicke, in May, 1750. It is not necessary to review the various objections, both to the jurisdiction of the court, and the efficacy of the agreement, which were urged on behalf of Lord Baltimore. They are all summa- - rily stated by the chancellor in his decision, as reported in Ist Vesey Sen'rs Reports, 444 to 456. It seems, however, to illus- trate the circumstances, under which the agreement of 1732 was entered into, and the agency of Baltimore in bringing it about. In the remarks of the chancellor upon the allegation of imposi- tion and fraud practiced upon Baltimore in the formation of that agreement, he says, "It would be unnecessary to enter into the particulars of that evidence : but it appears that the agreement was originally proposed by the defendant himself; that he himself pro- duced the map or plan afterwards annexed to the articles,-that he himself reduced the heads of it into writing, and was very well assisted in making it: and further, that there was a great length of -
(57) Council Proceedings, Liber W, which contains all the representations, proclamations and council transactions generally, in connexion with these border tumults. And also the above mentioned order in Council of 18th August, 1737.
(58) See Smith's Laws of Pennsylvania, 2d vol. 134.
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THE GRANT AND TERRITORIAL LIMITS [Intro.
time taken for consideration and reducing it to form." Under such a state of facts, the objection to its execution certainly came very ungraciously . from Baltimore; and whatever his folly in. forming it, it was but justice not to permit him to stultify himself. The objections to the jurisdiction being overruled, the decree, therefore, very equitably ordered the specific execution of the agreement : and to obviate the difficulties which had arisen in the voluntary effort in 1733, to carry it into execution, the chan- cellor pronounced an opinion as to the true location of Cape Henlopen, and the manner in which the circle around New Cas- tle was to be described. As to the former he remarks, "that it is clear by the proof, that the true situation of Cape Henlopen is, as it is marked in the plan, and not where Cape Cornelius is, as is insisted upon by the defendant, which would leave out a great part of what was intended to be included in Penn's grant from the Duke of York : and there is, says he, strong evi- dence of seisin and possession by Penn, of that spot of Cape Henlopen, and of all acts of ownership." The circle around New Castle he held to be a circle described around it with a radius of twelve miles, radiating from the centre of the Town. (59)
In conformity to this decree, commissioners were appointed by each of the parties to carry it into effect, and further diffi- culties soon arising as to the circle, the subject of difference was referred to the chancellor under a general power reserved by him in the decree, to adjust any difficulties which might arise in its
Proceedings of execution. It was contended by the Maryland com- the commission- ers under this de- cree.
missioners, that the radius should consist of twelve miles of superficial measure : but it was decided by the chancellor, upon the reference, that these miles, as well as the fifteen miles intervening between the boundary and the city of Philadelphia, should be reckoned by horizontal measure. The commissioners had, in the meantime, proceeded to execute the other parts of the survey about which there was no invincible
(59) I have before me a copy of the minutes of this decree, and also of the commission issued under it by the proprietaries of Pennsylvania, for which I am indebted to the kindness of Charles Smith, Esq. of Pennsylvania, whose learning and spirit of research are so conspicuous in his admirable , edition of the laws of that State.
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OF THE STATE OF MARYLAND.
Chap. I.]
disagreement, and before April, 1751, they had ascertained the true location of Cape Henlopen, and had made an actual survey of the due west line, running thence across the peninsula. The true position of Cape Henlopen they determined to be a point situated one hundred and thirty-nine perches from a stone, fixed by them on the north point of Fenwick's land. About the proper termination of the peninsular line running thence, they disagreed; Baltimore's commissioners contending that the entire line across the peninsula, from the middle of which the tangent line was to start, should terminate at Slaughter's Creek : and those upon the part of Penn, insisting upon the extension of the line to the eastern verge of the Bay. The former line was as- certained to be sixty-six miles and twenty-four and a half perches, and the latter sixty-nine miles and two hundred and ninety-eight perches.
In this state of execution, the progress of the work was sus- pended by the death of Charles Lord Baltimore, in April, 1751, Death of Charles Lord Baltimore, and the efforts of the new proprie. tary to resist the decree of 1750. with whom the agreement of 1732 had been enter- ed into, and fresh sources of controversy were at once opened. Two conveyances of the province in strict settlement had been made by the proprie- taries of Maryland, under which Frederick Lord Baltimore, the heir of Charles, now contended that he was protected from the operation of the agreement of 1732 and the decree of 1750, and therefore resisted the execution of the decree. (60) Thus resisting, he endeavoured to ascertain to what extent a compliance with the agreement and decree would affect his ter- ritory : and with this view in 1253, he ordered governor Sharpe to furnish him with the best possible information as to the present state of the boundaries between his province and Pennsylvania, and particularly as to the lower counties, the location of Capo Henlopen, and the effect of the twelve miles circle if the radius were determined by horizontal measurement. The council of the province, to whom these enquiries were referred by the go- vernor, declined a reply until a survey could be made of the nor- thern or tangent line : but in September, 1753, the subject being , again under consideration, they inform the proprietary "that
(60) Recitals of the agreement of 1760.
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
there is so much uncertainty as to the heads of the rivers run- ning into the Chesapeake Bay, as well as to the circle of New Castle, that they would not advise any particular boundary, unless a due north line could be run from the peninsular line, as also a due west radius from the centre of the circle. (61)
Hence it was that Frederick, being unable after inquiry to de-" termine the exact effect of the decree upon his territory, and The final agree- particularly upon his possessions along the Bay, was ment of 4th July, 1760. resolved to resist it : and to enforce his submission, a bill of revivor was filed against him by the Penns in 1754: but before a decree was had upon this new state of the controversy, it was finally determined by the agreement of the 4th of July, 1760, between himself and Thomas and Richard Penn, the sur- viving proprietaries of Pennsylvania. This agreement of 1760 adopted the agreement of 1732, and the decree of 1750, in their full extent, as to the definition of the boundaries : and also all the proceedings of the former commissioners under them so far as they had been definitive. Cape Henlopen was determined to be the point located as such, by these commissioners, and the peninsular line, which had been contended for by the Pennsylva- nia commissioners, was also adopted; and therefore the point at which the tangent line was to start from said peninsular line, was fixed at the distance of thirty-four miles and three hundred and 'nine perches from the point of beginning at Cape Henlopen. At the point of intersection of the tangent and peninsular line, boundary stones were to be planted at their joint expense, marked on the south and west by the Baltimore family arms, and on the north and cast by those of the Penns. It was also agreed that the old bill in Chancery should be dismissed without costs, and that either party within thirty days after the filing of a bill by the other, predicated upon this agreement, would file his answer ad- mitting this agreement, and his liability to the original agreement and decrce, and assenting to the cause being put down at once for hearing and answer: and that, if necessary, Baltimore would join in a petition to the king to establish the agreement.
It contains also a saving of the rights of grantees, and those claiming under them in or to all lands held under grants from the
(61) Council Proceedings, Liber T. R. and U. S. 14 to18 and 33.
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Chap. I.] OP THE STATE OF MARYLAND. ?
Savings underit. proprietaries of Maryland, (which were by this agree- ment ceded to Pennsylvania,) where the grantee was in the actual possession and occupation of them: and a similar saving as to lands ceded to Maryland, which were held by grantees from the proprietaries of Pennsylvania, or those claiming under them, and in their actual possession: and in all such cases, such lands were to be holden of the new proprietary as they were held under the original grant. Besides this general saving, it contains also a special saving of rights under grants from the proprietaries of Maryland, to any lands lying north of the line running west from the Susquehanna, and within a quarter of a mile of it: and a similar saving as to grants from the proprietaries of Pennsylva- nia, of lands lying south and within a quarter of a mile of said line, where the grantees, or those claiming under them, were in the actual possession of such lands. (62)
To carry this agreement into effect, not less than three nor more than seven commissioners were to be appointed by each of or the parties to the agreement, within thirty days after
Proceedings
Commissioners
under it, and their its execution. These commissioners were accord-
final report. ingly appointed, and assembled at New Castle for the commencement of their operations, on the 19th November, 1760: and were from time to time engaged in the performance of the duty, until the 9th November, 17GS, when their labors were closed by their final report to the proprietarics. During this period, they caused to be kept a minute account of all their deliberations, instructions and proceedings, relative to the adjust- ment of the various parts of these intricate boundaries, which has been preserved, and is worthy of preservation as a model of accuracy and fidelity in the record of public transactions. (63)
(62) This agreement of 1760, which fully illustrates the progress of the controversy from the agreement of 1732 down to that period, is deposited in the Council chamber, and has also been recorded at large amongst the land records of Maryland, in Liber J. C. No. E, in pursuance of the directions of resolution 7th, of November session, 1788. To give effect to the savings of the rights of settlers under the compact, provision is made by the Act of 1785, chap. 66, for issuing patents for lands held under Pennsylvania grants to those entitled, upon the payment of office fees.
(63) The commissioners originally appointed were, on the part of Mary- land, his excellency Horatio Sharpe, Benjamin Tasker, Jr. Edward Lloyd,
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
The result of their labours in the definitive adjustment and actual location of these boundary lines, cannot be more accurately or succinctly stated than it is in their own report, from which we extract and subjoin that part of it which relates to the location of the lines. After setting out in detail the authority under which they acted, they report as follows:
"Ist. We have completely run out, settled, fixed and determined a straight line, beginning at the exact middle of the due east and west line mentioned in the articles of the fourth day of July one thousand seven hundred and sixty, to have been run by other commissioners formerly appointed by the said Charles Lord Bal- timore and the said Thomas Penn and Richard Penn, across the peninsula from Cape Henlopen to Chesapeake Bay, the exact middle of which said east and west line, is at the distance of thirty-four miles and three hundred and nine perches from the verge of the main ocean, the eastern end or beginning of the said due east and west line : and that we have extended the said straight line eighty-one miles seventy-eight chains and thirty links up the peninsula, until it touched and made a tangent to the western part of the periphery of a circle drawn at the hori- zontal distance of twelve English statute miles from the centre of the town of New Castle, and have marked, described and per- petuated the said straight or tangent line, by setting up and erecting one remarkable stone at the place of beginning thereof, . in the exact middle of the aforesaid due east and west line accord- ing to the angle made by the said due west line, and by the said tangent line; which stone, on the inward sides of the same facing towards the east and towards the north, hath the arms of the
Robert Jenkins Henry, Daniel Dulany, Stephen Bordley and the Rev. Alexan- der Malcolm : and on the part of the Penns, the Hon. James Hamilton, Wil- liam Allen, Richard Peters, Benjamin Chew, Lynford Lardner, Ryves Holt and George Stephenson, Esqrs. In the progress of this tedious and protracted work, the Rev. John Barclay, George Stuart, Daniel of St. Thomas Jenifer and John Beale Bordley, were appointed on the part of Maryland, to fill the vacancies occasioned by the declension of several of its original commission- . ers : and the Rev. John Ewing, William Coleman, Edward Shippen and Thos. Willing, Esqrs. were appointed to fill vacancies similarly occurring in the Pennsylvania board. The accurate record of their transactions alluded to in the text, which contains a journal of their proceedings, authenticated at the close of each day by the signature of every commissioner present, has been preserved in the Land Office of this State.
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OF THE STATE OF MARYLAND.
Chap. I.]
said Thomas Penn and Richard Penn graved thereon, and on the outward sides of the same facing towards the west and towards the south, hath the arms of the said Frederick Lord Baltimore graved thercon: and have also erected and set up in the said straight or tangent line, from the said place of beginning to the tangent point, remarkable stones at the end of every mile, each stone at the distance or end of every five miles, being particular- ly distinguished by having the arms of the said Frederick Lord Baltimore graved on the side thereof turning towards the west, and the arms of the said Thomas Penn and Richard Penn graved on the side thereof turning towards the east, and all the other intermediate stones are marked with the letter P on the sides facing towards the east, and with the letter M on the sides facing towards the west, and have fixed in the tangent point a stone with the arms of the said Frederick Lord Baltimore graved on the side facing towards the west, and with the arms of the said Thomas Penn and Richard Penn graved on the side facing towards the east.
"2dly. That from the end of the said straight line or tangent point, we have run out, settled, fixed and determined, a due north line of the length of five miles one chain and fifty links, to a par- rallel of latitude fifteen miles due south of the most southern part of the city of Philadelphia, which said due north line inter- sected the said circle drawn at the distance of twelve English sta- tute miles from the centre of the town of New Castle, one mile thirty-six chains and five links from the said tangent point, and that in order to mark and perpetuate the said due north line, we have erected and set up one unmarked stone at the point where the said line intersects the said circle, three other stones at a mile distance from each other graved with the letter P on the sides facing the east, and the letter M on the sides facing the west, between the said place of intersection of the said circle and the said parallel of latitude, and a third stone at the point. of intersection of the said north line and parallel of latitude, which last stone on the sides facing towards the north and east, hath the arms of the said Thomas Penn and Richard Penn graved thereon, and on the sides facing towards the south and west hath the arms of the said Frederick Lord Baltimore graved thercon.
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