USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 7
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48
THE GRANT AND TERRITORIAL LIMITS
[Intro.
"3dly. That we have run out, settled, fixed and determined, such part of the said circle as lies westward of the said due north line, and have marked and perpetuated the same, by setting up and erecting four stones in the periphery thereof, one of which, at the meridian distance of one mile from the tangent point, is marked with the letter P on the east and the letter M on the west · sides thereof.
" 4thly. That we have run out, settled, fixed and determined, a due east and west line, beginning at the northern point or end of the said due north line, being the place of intersection of the said north line, with the parallel of latitude, at the distance of fifteen English statute miles due south of the most southern part of the city of Philadelphia, and have extended the said line, two hundred and eighty miles eighteen chains and twenty-one links due west from the place of beginning; and two hundred and forty-four miles thirty-eight chains and thirty-six links, due west from the river Delaware; and should have continued the same to the end of five degrees of longitude, the western bounds of the Province of Pennsylvania, but the Indians would not permit us. And that we have marked, described, and perpetuated the said west line, by setting up and erecting therein, stones at the end of every mile, from the place of beginning, to the distance of one hundred and thirty-two miles, near the foot of a hill, called and known by the name of Sideling hill ; every five mile stone having on the side facing the north, the arms of the said Thomas Penn and Richard Penn graved thereon, and on the side facing the south, the arms of Frederick Lord Baltimore graven thereon, and the other intermediate stones are graved with the letter P on the north side, and the letter M on the south side, and that the country to the westward of Sideling hill, being so very mountain- ous, as to render it in most places extremely difficult and expen- sive, and in some impracticable, to convey stones or boundaries which had been prepared and marked as aforesaid, to their pro- per stations, we have marked and described the said line from Sideling hill to the top of the Allegany Ridge, which divides the waters running into the rivers Potowmack and Ohio, by raising and erecting therein, on the tops of ridges and mountains, over which the said line passed, heaps or piles of stones or earth, from about three and an half to four yards in diameter, at bot-
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Chap. I.]
OF THE STATE OF MARYLAND. 49
tom, and from six to seven feet in height, and that from the top of the said Alleghany Ridge westward, as far as we have con- tinued the said line, we have set up posts at the end of every · mile, and raised round each post, heaps or piles of stones, or earth of about the diameter and height before mentioned." (61)
Thus were finally adjusted what are now the eastern and northern 'boundaries of Maryland, which separate it from the states of Delaware and Pennsylvania respectively. Yet even New sources of this controversy had not terminated before the pro- controversy. prietary, of Maryland found himself involved in ano- ther, menacing the loss of another fertile portion of his province. Like the bayed lion, he had only shaken one adversary from his mane, to turn him to another who was biting at his heel. A whole century had been spent in fruitless contests for his northern and eastern territory, and he was now to begin another contest for his southern and western boundary, which has not terminated even at this day, and is likely to be of equal endurance with the former. This related to, and grew out of the description of " the first fountain of the Potowmack," as the common terminus of the western and southern boundaries of Maryland : and was predicated upon a grant of the northern neck of Virginia, to the origin of which it will be necessary briefly to refer.
It was first granted by Charles II. in the first year of his reign, or rather, the first year after Charles I. was beheaded, for Charles II. was then a monarch without a crown, a king without sub- jects, and a grantor without territory. He was then emphatically Charles " Lackland," and in an admirable condition for making grants to secure the adhesion of the followers of his fallen fortunes.
(64) This cast and west line between Pennsylvania and Maryland, is the line commonly called by the name of Mason and Dixon's line, which has been so often referred to, in political and other discussions, as the line of de- marcation between the northern and southern, or the slave-holding and non- slave-holding states. It is so called, because this part of the survey was ac- complished under the direction of Messrs. Mason and Dixon, who were specially employed by agreement between the proprietaries of the two states, and were under their special instructions taken into the employ of the commissioners in November, 1763. At that period, the principal part of the peninsular surveys had been completed, and hence this line is peculiarly call- ed Mason's and Dixon's line. 7
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THE GRANT AND TERRITORIAL LIMITS [Intro.
Grant of the The grantors in this grant were Lord Hopton, Lord
northern neck. Jermyn, Lord Culpepper, Sir John Berkeley, Sir William Morton, Sir Dudley Wyatt, and Sir Thomas Culpepper, and the territory granted, was, " all that tract of land, lying and be- . ing in America, and bounded within the heads of the rivers Rapa- hannock and Quiriough or Potowmac, (the courses of the said rivers as they are commonly called and known by the inhabitants) and the "Chesapeake bay." After the restoration of Charles, the validity of the grant was drawn in question, and the title to it having passed, by the death of some of the proprietors, and by purchase from others of them, to the carl of St. Albans, Lord Berkeley, Sir William Morton and John H. Tretheway, Esquire, the original grant was surrendered by them for the purpose of re- ceiving a new grant for the same territory, for which they accord- ingly obtained letters patent from king Charles, in May, 1669. Although Virginia was, at the period of these grants, a royal government, (as the colonial governments, which were direct- ly administered by the crown, were 'styled :) and being such, the power of the crown to grant, at its pleasure, the vacant lands within its jurisdiction, was unquestionable, they yet occasioned . great discontents amongst the colonists of Virginia. The grant of Maryland, as we have already seen, was long resisted as a dismemberment of the colony; and being followed by these grants, they began to apprehend their reduction to a secondary rank amongst the colonies. Yet the grants of the northern neck carried with them nothing but the rights of soil, and the incidents of ownership, for they were expressly subjected to the jurisdiction of the government of Virginia. The discontents fermented by this and other acts of the crown, rose to so high a pitch, that agents were sent to England, in April, 1675, by the Assembly of Virginia, who were instructed amongst others things to remon- strate against the grant, and to request that the Assembly might be authorized, by act of incorporation, to purchase it from the proprietors. Their requests were favourably received, but the gratification of them was prevented by causes, to detail which would be foreign to our present purposes. It will suffice to say, that the title to the whole having vested in Thomas Lord Cul- pepper, a new patent for it was granted to him by King James II. in the fourth year of his reign, and that from him it descended
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51
''OF THE STATE OF MARYLAND.
Chap. I.]
to his daughter and only child, who was married to Lord Fairfax, and thus passed into the Fairfax family. (65)
These grants of the Northern Neck, as it will be perceived, call for the lands lying on the south side of the Potomac to its head, and in this call there was nothing inconsistent or clashing Tha extension, with the call of the charter of Maryland. The call of the claalma un.
to the north of the latter is to the first fountain or source of the" branch.
der these grants
Potomac, which was of course its head, and there- fore a conflict between these two grants could only arise from the extrinsic difficulty or doubt, as to the true location of the first fountain or head. As then, the patents for the northern neck did not appear upon their face to be infractions of the proprieta. ry's chartered rights, and could only become so by disputes about the true location of' the common call, they were not calculated to excite his jealousies, or to beget difficulties between him and the claimants under the former, until the settlements began to extend towards the head of the Potomac. Hence, it does not appear that his attention was directed to the ascertainment of the first fountain, or that he was involved in any controversies about it, until the middle of the eighteenth century. Early in that cen- tury, Lord Fairfax had visited Virginia for the purpose of survey- ing the grant of the Neck; and it appears from the recitals of an act of the Virginia Assembly, in the year 1736, that at that peri- od, he and his predecessors, through their agents and attornies, had already granted a considerable portion of it. (66) In 1749, a Land Office for the grant of the lands in the neck, was formally opened by Fairfax, and kept open until his death, in 1781, which was conducted in his name, and at his expense, as the proprie- tor of the northern neck. (67)
Course pursued A wide field being thus opened to the spirit of ry of Maryland, enterprise and speculation, the grants were soon by the proprieta- extended so far to the west as to raise the question as to the lo-
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(65) For the history of these grants, of which a summary is given above, sec Chalmer's, 330, and notes. Keith's History of Virginia, 166. Recital of the 13th Chapter of Acts of Assembly of Virginia for the year 1736, and the case of Fairfax's Lessee against Hunter's Devisee, 7th Cranch's Reports, 603.
(66) Keith's History of Virginia, 166. Virginia Revised Code of 1812.
. Ist vol. 8 to 14:
(67) See the special verdict in case of Fairfax's Devisce, 7 Cranch, 607
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
cation of the head of the Potomac, and at the same moment that Frederick Lord Baltimore, the then proprietary, was endeavour- ing to ascertain the exact effect which the agreement of 1732, re- lative to his northern boundaries, would produce upon his grant, we find him directing his attention also to its western limits. In his instructions to governor Sharpe, which were presented by - the latter to his council in August, 1753, he alludes to the Fair- fax grant, and remarks that he had been informed that the gov- ernment of Virginia had undertaken to ascertain the limits of his charter: and , that the commissioners who had been appointed for this purpose, instead of stopping at the South Branch, which runs from the first fountain of the Potomac, had gone even to the North Branch-that if any such adjustment was made, he had no know- ledge of his predecessor being a party to it; and therefore. con- cluded by it, that if it were made with the privity of the latter, it would be invalid, as the former proprietary held the province only as a tenant for life under a strict settlement. He therefore directs the governor to obtain early intelligence of the manner in which the boundaries were settled by these commissioners, and to apprise lord Fairfax of his desire to adjust that boundary with him : and he at the same time commands him to " keep a good look out, and prohibit settlements under Fairfax in the country north of the South Branch." (68) These instructions being laid before the council, in order to a compliance with them, they en- · deavoured to collect information with reference to the relative extent of the north and south branches of the Potomac, and for this purpose they summoned before them Col. Thomas Cresap, one of the settlers in the western extremity of the State, who was supposed to be familiar with the course and extent of these branches. He accordingly attended at their next session in Sep- tember, 1753, and informed them, that in his opinion the south branch of the Potomac was the longest stream, because it conti- nued, as he thought, the longest stream even from its mouth, and ran about sixty miles further in a north eastern direction than did the north branch. (69) Thus informed, the governor addressed a letter to lord Fairfax, in which, after apprising him of the instruc-
(68) Council Proceedings of Maryland, Liber T. R. and W. S. page 12.
(69). Council Proceedings, Liber T. R. and W. S. 13.
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OF THE STATE OF MARYLAND.
Chap. I.]
tions received from the proprietary, he remarks that the informa- tion, which he had obtained, induces him to believe that there has been some mistake in fixing the fountain head of the Potomac at the source of the north branch, inasmuch as the relative length of the two branches, and other circumstances, concur to show that the south branch, commonly called " Wappacomo," is the main and principal course of that river. He therefore expresses the hope, that his lordship will concur with him in causing such an exami- nation of these branches to be made, as will put the question to rest: (70)
The adjustment of the boundaries of Fairfax's grant, which is alluded to in these instructions of the proprietary, was one of the The previous nature of which he appeared to have been wholly un- the boundaries apprised. His instructions are predicated upon the adjustment of between the go-
vernment of supposition, that the surveys might possibly have
Virginia & lord.
Fairfax. been made with the knowledge and concurrence of his predecessor : and hence he denies the power of the latter to enter into any arrangements as to the boundaries which could ex- tend beyond his life estate, or conclude those in the remainder. This caution was wholly unnecessary; for it does not appear, from a full examination of all the proceedings of the propr go- vernment, on record in the province, that the propri .s of Maryland were ever, in any wise, privy to any settlement of the boundaries which contemplated the extension of Fairfax's grant to the north branch : nor are we aware that it has ever been al- leged. The only adjustment, which ever took place, was one, growing out of controversies between Fairfax and the govern- ment of Virginia, having reference, solely, to the conflicting terri- torial claims, and concluded by proceedings, to which Baltimore was in no wise a party, and of the existence of which, he and his government appear to have had no knowledge, before they were terminated. The histories of Virginia are singularly bar- ren, in all that relates to this adjustment between the crown and lord Fairfax ; and there are no published of unpublished docu- ments within our reach, which enable us to present it in detail, or to illustrate fully the character of the controversy which it termi-
(70) Jefferson's Notés on Virginia, 193 and 194.
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THE GRANT AND TERRITORIAL LIMITS [Intro.
nated. Mr. Jefferson has given us a reference to the several documents connected with it ; but in such a manner, as to indi- cate, rather, that he merely knew that they were in existence; than that they had come under his personal observation. (71) Enough, however, is known, to enable us to state the general result, which alone is important in connexion with our present enquiry. It appears that in 1733, a petition was preferred by Fairfax to the King in Council, praying, that a commission might issue for run- ning and marking the dividing line, between his grant and the province of Virginia, and that the commission was accordingly issued, and the survey made and reported in August, 1737. In December, 1733, these reports were referred to the consideration of the council for plantation affairs, by whom a report was made in 1745, which determined the head springs of the Rap- pahannock and Potomac, and directed that a commission should issue to extend the line. This report was confirmed by the King in Council : and the line being adjusted' in conformity to it, an act was' passed by the General Assembly of Virginia, in the year 1748, which adopts the order in Council, and con- firmns all previous grants made by the crown, of lands lying with- in the limits of the Fairfax grant. (72) The line thus settled, adopted the north branch of the Potomac, as the first head of that river, by which location of it, thus pushing over the Fairfax grant to this branch, without even considering, much less re- specting, the claims of the proprietary of Maryland, each of these interested parties were to be benefitted at his expense. On the one hand, the territory subject to the jurisdiction of Virginia was enlarged ; and on the other, Fairfax gained a more valu -. able territory lying between the north and south branch, than that which he lost lying east of the head of the south branch, and between it and a meridian passing over the head of the north branch. During all this period, the situation of the proprietary of Maryland afforded to these parties the most favourable oppor- unity for practising this usurpation of his rights. His petition for the confirmation of his grant, so as to exclude the claims of the Penns, was then pending before the King in Council, to await the issue of the proceedings in Chancery upon the agreement
(71) Jefferson's Notes on Virginia 193 and 194.
(72) Jefferson's Notes 103 Virginia, revised Code of 1812, page 14.
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Chap. I.]
. . OF THE STATE OF MARYLAND.
of 1732, which was all the while progressing. The momentous character of that proceeding was well calculated to engross his attention, and to divert it entirely from these ex-parte transactions, on the part of Fairfax, which did not upon their face even pro- fess to interfere with his grant ; and to the purpose of which, he was awakened only by the knowledge of the actual location from the north branch. His death, shortly afterwards, prevented the proprietary from adopting any decisive measures for the vindica -.. tion of his rights : but the instructions of his successor in 1753, im- mediately after his accession to the proprietaryship, exclude all- inference of acquiescence in these unwarrantable acts ; and mani- fest a full determination on his part, to exclude all settlements which might be attempted under them upon his territory."
The letter of the governor of Maryland to. Fairfax shews us, that this determination of the proprietary was promptly met, and seconded by his officers : but we are left utterly in the dark
Causes which as to the further progress of the negotiation thus controversy be- opened. From this period, until the revolution, the suspended the proprietaries un- existing records of our Council and Assembly trans- tween the two til the revolu-
tion. actions are entirely silent as to this contest, of. which an accurate history can be collected, only from the re- cords of the English Council. We know only that Fairfax con- tinued to adhere to the line, as adjusted between him and the crown, and to issue grants for the disputed territory ; and that the proprietary of Maryland continued to assert his claims to the first fountain, be that where it might, and waited but a favourable op- portunity for bringing the subject before the King in Council. For some years after the controversy was opened, the attention of the government of the province was wholly engrossed with its internal concerns, and its efforts, in common with the other colonies, in the prosecution of the French and Indian wars : but these being terminated by the definitive treaty of peace, conclud- ed at Paris in February, 1763, it is probable, that by the restora- tion of peace upon the borders, the settlements of Maryland would soon have been pushed to its extreme limits. Had this occurred, there would soon have ensued a collision between the grants of the proprietary and of Fairfax ; and this collision would at once, either have brought about an amicable adjustment of the boundaries, or have forced it for determination before the
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
King in Council. At this moment, when the conflict seemed in- evitable, two causes for its suspension arose, which held. this difference in abeyance, until the revolution came to convert it into a contest between free and independent states. By the treaty of Paris in 1763, above alluded to, a large territory was ceded to the English, within which newly acquired territory, it . became necessary to organize colonial governments: For this and other purposes, a proclamation was issued by the king, in October, 1763, by which, and to enable the English government to carry into effect its engagements to the Indians, the colonial . governments generally, were prohibited from granting any lands lying west of the sources or heads of any of the rivers, flowing into the Atlantic from the west, and north-west. (73) In the en- . suing April, instructions were issued by" governor Sharpe, to the Judges of the Land Office, which set forth, that the proprietary was desirous to have reserved for him, ten thousand acres of land in the western part of Frederick County, to be held as a manor ; and that he had therefore instructed the surveyor of that county not to execute any warrant on any lands lying beyond Fort Cumberland, until that reserve was taken off. This general . interdict of the crown, and the reserve to the proprietary, each tended to check the progress of the settlements, in the direction of the debateable territory; and the proprietary and his officers now waited for the first favourable opportunity of bringing the question before the council, which might present itself. . In 1771, a survey of the two branches was made by Colonel Cresap, un- . der the direction of the proprietary: Our records do not distinct- ly inform us, for what purpose it was made. The survey itself, has been preserved in our Land Office, and presents a very accu- rate view of the courses of the two branches, through the heads. of which, meridians are drawn, for the purpose of determining their relative extent to the west. From the year 1753 up to this period, it appears to have been continually held" on the part of Maryland, that the south branch was the most western source,
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(73) This proclamation was not intended to alter the boundaries of the Colonies, but was a mere temporary arrangement, suspending for a time the settlement of the county reserved. See Supreme Court of United States, in Fletcher vs. Peck, &c. Cranch 142.
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Chap. I.]
OF THE STATE OF MARYLAND.
and therefore, the first fountain : but the survey of 1771 appears to have been the first actual examination and survey of the two branches, which was made with this view. The papers, connect- ed with the settlement of the expenses of the survey, shew, that it was made under the directions of the proprietary government; and it seems probable that it was made, both for the purpose of informing the proprietary as to the true location of the branches, and of furnishing a basis for any application which might be made by him to the King in Council. In March, 1774, the subject of ' the reserve, on the lands lying westward of Fort Cumberland, be- ing brought before the proprietary's Board of Revenue, which had been organized in 1766, 67, that Board determined, that the object of the reserve had been accomplished, in the surveys actually made for the proprietary; and, therefore, took off the reserve .. This determination led to a correspondence between them and Mr. Jenifer, the proprietary's agent, which exhibits the course of the proprietary before that period, and illustrates his motives for forbearance. Mr. Jenifer disapproved of the course pursued by the Board, in throwing the western lands open for grant; and in the hope of dissuading them from it, he addres- sed them a letter in May, 1774, in which he states, that he had heard, that grants had been issued since their decision, under which, persons were not only making surveys to the west of Fort Cumberland, but even across the Alleghany mountains, and west of the meridian of the north branch. Such surveys he consid- ered as not only in contravention of the king's proclamation of 1763, but also at war with the policy of the proprietary. The proprietary, says he, has hitherto cautiously avoided giving of- fence by granting lands westward of the line, settled between the crown and Lord Fairfax; and although there is not a doubt, that the south branch is the fountain head, and the point at which the meridian for the western boundary ought to start, yet the proprietary is waiting for a favourable opportunity of bring- ing it before the King in Council. In conclusion, he expresses the hope, that some recent territorial differences between Virgi- nia and Pennsylvania, under which, each government had arres :- ed those acting under the authority of the other, would bring about this much wished for occasion." The reply of the Board through Mr. Steuart, relies upon the confession of the Agent, as 8
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