USA > Maryland > An historical view of the government of Maryland : from its colonization to the present day > Part 8
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58
THE GRANT AND TERRITORIAL LIMITS
[Intro.
to what are the proper limits, and declares, that it does not be- come either them or the agent, to do any act which may have a tendency to restrict those limits. "The proprietary, (say they,) has lately been at the expense of running a line to the south branch, and if the Virginians hear that he doubts about the ex- tension of his limits, it will be an encouragement to them to begin to throw stones." Mr. Jenifer still continued to press upon them the propriety of delaying this step, and urged, that as the proprie- tary had not, before the decision of the Board, made any grants of lands, lying west of the north branch, a delay of the measure could not weaken the proprietary claim, or encourage the pre- tensions of the Virginians. The Board still adhered to their de- termination, and large grants of land on the reserve were imme- dately made, and continued to be made, until October, 1774, when instructions were received from the 'proprietary, directing the Judges of the Land Office to suspend all further grants of the reserved lands, and to prepare and transmit to his guardians an ac- curate list of all warrants issued under the order of the preceding March, and of all settlements and locations made within the ter- ritory thrown open by that order, since the year 1763. (74)
So stood the controversy between the proprietaries, when the American Revolution came to elevate the provinces of Maryland
Effect of the re- and Virginia, to the rank of free and independent
volution upon it. states. Fairfax was still the proprietor of the Nor- thern Neck, and in the full exercise of all the powers incident to his absolute ownership of the soil, subject to the jurisdiction of the royal government of Virginia: and the effect of the revolution upon his grant was to substitute the jurisdiction of the state go- vernment, whilst it left him in the full enjoyment of the grant. By this change, the question as between the two states, was, as to Virginia, merely one of jurisdiction over the debateable territory, and so remained until the death of Fairfax in 1781. It would be useless, in our present inquiry, to pass in review the legislation of Virginia as to the Northern Neck, subsequently to the death of 1
(74) The proceedings of the Board of Revenue are preserved, and may now be found in the Land Office. The titles acquired under warrants, issued be- tween the 22d of March and the 6th of October, 1774, to affect lands lying westward of Fort Cumberland, were saved by the act of 1784, Chap. 75.
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Chap. I.]
59
OF THE STATE OF MARYLAND.
Fairfax .. It will suffice, to say, that it was by him devised to Denny Fairfax ; and that, in consequence of his alienage and absence from the province, several acts were passed by the As- sembly of Virginia, by the last of which, the act of 1785, chap. 63, the state of Virginia claimed the ownership, and made provision for the grant, of vacant lands in the Northern Neck. All of these acts were subsequently declared by the Supreme Court of the United States to be insufficient to divest the title of Fairfax's de- visee ; and the defect in his title, because of alienage, was held to be cured by the Treaty of 1794. (75) These acts, which left the title in the devisee, from whom it passed to his grantees, are here adverted to only for the purpose of shewing that as early as 1785, the State of Virginia, having assumed to herself the ownership of the vacant lands in the Northern Neck, stood clothed with claims similar to those of the State of Maryland.
Returning to the consideration of this contest for territory, which, by the force of the revolution, had become a subject for ad- Virginia cedes to Maryland all the territory given justment between these sovereign, independent, yet sister states of the confederacy, we are now to un- by her charter, fold the causes which have delayed that adjustment
subject to certain reservations. even until this day. That it should now be where the revolution found. it, inay excite our surprise. The history of . the transaction, if it removes the wonder, will also tell us where the censure lies. It has been seen, that, up to the era of the re- volution, the claim of the proprietary of Maryland to the first foun- tain of the Potomac, be that where it might, had never been for a moment relaxed, and that, whatever the adversary possession of the disputed territory, it was held in the face of a continual claim and assertion of right on his part, and against his unceasing efforts to reclaim it. The revolution having cast upon the State of Vir- ginia the adjustment of the boundary, under circumstances such as these, left her no equitable objections to urge against the claim of Maryland to the full extent of her territory, as defined by her charter. Hence, in the constitution of Virginia, adopted in June, 1776, we find a full and express recognition of the right of Mary- land "to all the territory contained within its charter, with all the
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(75) Fairfax's devisee against Hunter's lessee, at February term, 1813, re- ported in 7th Cranch, 607.
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60
THE GRANT AND TERRITORIAL LIMITS
[Intro.
rights of property, jurisdiction and government, and all other rights whatsoever to the same, which might at any time thereto- fore have been claimed,by Virginia, excepting only the free navi- gation and use of the rivers Potomac and Pocomoke, with the property of the Virginia shores or strands, bordering on either of said rivers, and all improvements which have been or shall be made thereon." (16)
The object and necessity of this exception will at once be ap- parent, when we reflect upon the new relation in which the-two These reserva- provinces now stood to each other, as sovereign her by compact states; and the promptitude with which the desire of tions secured to with Maryland in 1785.
Virginia to keep open to her citizens the enjoyment of these rights of navigation and their incidents, was met and re- ciprocated by the State of Maryland, places her conduct in a very favourable point of view. (77) In the very next year after this constitutional reservation, by a resolution of the Assembly of Ma- ryland, Daniel of St. Thomas Jenifer, Thomas Stone and Samuel Chase, were appointed commissioners on the part of Maryland for the purpose of adjusting with the commissioners on the part of Virginia (George Mason and Alexander Henderson) " the navi- gation of, and jurisdiction over, that part of the Chesapeake Bay which lies within the limits of Virginia, and over the rivers Poto- mac and Pocomoke," subject to the ratification of the general As- sembly. (78) The result of the conferences of these commission- ers was a compact, formed at Mount Vernon, on the 28th March,
(76) Virginia Constitution of 1776, article 21st.
(77) It is, however, proper to state, that this reservation of Virginia was not well received at first. In October, 1776, the subject of it was brought under the consideration of the convention which formed our present State Constitu- tion, by which several resolves were adopted, asserting in the broadest terms the right of Maryland to all the territory included in the charter, to the sole and exclusive jurisdiction over all the waters, bays, &c. within that territory, and especially to the Potomac and such part of the Pocomoke as falls entirely with- in its territory ; and declaring that the river Potomac, and that part of the Chesapeake Bay lying between the capes and the northern boundary of the State, or so muchthere of as is necessary to the navigation of the Potomac and Pocomoke, ought to be considered a common highway, free for the people of both States, without being subject to any duty or charge. Sce Hanson's Edi- tion of the laws, which includes the journal of this Convention.
(78) Resolution 6th of October Session, 1777.
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OF THE STATE OF MARYLAND.
Chap. I.]
1785, which accomplished all the purposes of their appointment, and which received the ratification of the legislatures of both states at their next session. (79)
This compact contains a series of commercial regulations, con- General view of stituting a treaty of commerce predicated upon the thin compact of 1795. basis of free and equal rights in the navigation of these rivers, to be maintained for their common benefit, by their common efforts, and at their joint expense, and securing these in a manner eminently calculated to promote and establish an har- monious and beneficial intercourse. These regulations have been superseded by the adoption of the Constitution of the Uni- ted States, which devolved upon Congress the power of regulat- ing commerce with foreign nations, and among the several States; but they are worthy of all commendation, and deserve to be the most. cherished part of our history, when we remember, that to these may be traced the germ of the causes which called that con- stitution into being, which freed us from that "rope of sand"' the confederation, and which placed us under the shadow of that blessed Union, by whose guidance we have been conducted to happiness as a people, and to peace, power and prosperity, os a nation. Besides these commercial regulations, it contains provisions for the apprehension and punishment of offenders, for the arrest of absconding debtors, and for the security and pro- tection of the river and bay possessions of the citizens of the two States, which require a passing notice. It provides as to all offen- ces committed on that part of the Chesapeake bay which lies within the limits of Virginia, or that part of it where the line of division from the south point of Potomac river called Smith's point, to Wat- kin's point near the mouth of Pocomoke river, may be doubtful, or committed on the Pocomoke within the limits of Virginia, or where the line may be doubtful, that the jurisdiction over the same, if committed by persons, not citizens of Virginia, against the citizens of Maryland, shall belong to the courts of Maryland, having legal cognizance of such offences, and so vice versa : and that if committed by a citizen of Maryland against a citizen of Virginia, or vice versa, the jurisdiction over the offence shall be-
(79) Virginia Acts of December session, 1785, chap. 18, and Maryland, A. A. of 1785, chap. 1st.
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THE GRANT AND TERRITORIAL LIMITS
[Intro.
long to the courts of the State of which the offender is a citizen. It establishes the same regulations as to offences committed on the Potomac river, except in cases of offence or crime by a per- son not a citizen of either State, against a person not a citizen of either, as to which the jurisdiction shall attach in the State to which the offender is first brought. It provides as to all persons absconding or flying from justice in any civil or criminal case, or attempting to defraud creditors by the removal of property, that such person or property so flying or removed, may be seized upon any part of said bay or said rivers, by process of the State whence the party fled, or the property was removed. It permits the process of either State to be served any where, on said rivers, on the person or property of any one not being a citizen of the other State, so that the process of both States may run over the whole extent of these rivers, as against all persons not citizens of either State. And lastly, as to the riparious possessions of the citizens of the two States, it declares: Ist. That the citizens of each State shall have full property in the shores of the Potomac, ad- joining their lands, with all advantages and emoluments thereto belonging, and the privilege of making and carrying out wharves and other improvements, provided they do not obstruct or injure the navigation of the river. 2dly. That the rights of fishing in said river shall be open to the equal enjoyment of the citizens of both States, provided that it be not exercised by the citizens of one State, to the hindrance or disturbance of the fisheries on the. shores of the other, and also that the citizens of neither State shall have the right to fish with nets or seines on the shores of the other. '3dly. That for any violence, injury or trespass to, or upon the property or lands of any citizen of either State, adjacent to the bay or the said rivers, or to any person upon such lands, commit- ted by any citizen of the other State, upon proof of due notice to the offender, to appear and answer in any court of record, or before any magistrate having cognizance of such injuries, &c. may enter the appearance of such offender, and proceed to trial, as if the offender, were served with legal process, and the judg- ment so rendered shall be valid against the person and property of the offender in both States, and execution may be issued as in other cases, or upon a transcript of the judgment properly au-
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63
OF THE STATE OF MARYLAND.
Chap. I.]
thenticated, produced to any court or magistrate of the State where the offender resides, having jurisdiction in the State or county where he resides, in similar cases, such court or magis- trate may issue execution thereon as upon its or his own judg- ment.
Efforts for a settlement of the bounda- ry from the period of this compact un- til the pas- sage of the act of 1818. Thus by this compact, irrevocable, except by the as- sent of both States, all differences were ended which " could arise about the rights reserved by Virginia, un- der her constitution; and Maryland was now, by the concessions of that very constitution itself, as well as by the intrinsic efficacy of her charter, confessedly entitled to all the territory which fell within her chartered limits, subject to the compact. Had she known and pursued her interests, this com- pact would never have been formed without making the adjust- ment of the western boundary a part of it; and had the conside- ration of it been introduced into the negotiation, and its settle- ment insisted upon by Maryland, it would doubtless have been conceded. Virginia was too much alive to the deep interests which she had staked upon that negotiation, and which might be lost by its failure, to have hazarded all for an interest compara- tively so unimportant, as her claim to incre jurisdiction over a por- tion of what was then her remote territory. That it should have been passed by, whilst a subject so intimately connected with it was under consideration, and that it should not have been brought up, even as a subject matter for negotiation, until 1795, is truly surpris- ing. (80) In that year, by a resolution of the General Assem- bly of this State, Messrs. Pinkney, Cooke and Key, were ap- pointed commissioners on the part of this State, to meet such commissioner's as might be appointed on the part of Virginia, with power to adjust, by compact between the two States, the western and southern limits of this State, and the dividing lines and boundaries between it and Virginia ; and also any claim of either State to territory within the limits of the other ; and in the event of agreement, the compact was to be reported to the Legis- lature for its confirmation. Delay still followed delay, Mr. Pink-
(80) This delay may in some measure be accounted for, by the reservations of land made by the State, to enable her to fulfil her engagements to the officers and soldiers of the Maryland line.
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6.1
THE GRANT AND TERRITORIAL LIMITS
[Intro.
ney having left the province, and Mr. Cooke having declined ac- ceptance; in 1796, Charles Carroll of Carrollton, and J. T. Chase, Esqrs. were appointed in their stead. (81) Mr. Key re- moved from the State, and Messrs. Carroll and Chase declined acceptance, and thus the State was again left without commis- sioners until 1801, when by a resolution of that year, the power of appointment was given to the governor and council. Messrs. Duvall, McDowell and Nelson, were now appointed commission- ers, and a correspondence upon the subject took place between governors Mercer and Monroe. The result of it was, that a re- solution wa's passed by Virginia, authorising the appointment of
(81) Mr. Cooke's letter of declension, which was, by the vote of the House of Delegates, directed to be recorded on its Journals, contains some interest- Ing statements, in relation to the extent of territory dependent upon this con- troversy. Yet, although it purports to be founded upon an examination of the whole question, it contains some erroneous statements. In adverting to the exploration of the country by colonel Cresap, he states that Cresap, judg- ing more from appearances, than from any actual survey, reported in favour of the north branch, and that it was for some time afterwards supposed to be the first fountain. In this, he is entirely in error. Cresap was examined before the Council in 1753, and made an actual survey in 1771 : and on both occasions decided in favour of the south branch. Nor do our records show that he was exa- mined on this subject, or employed for this purpose at any other time ; or that there ever was a period in the province, when the north branch was held to be the first fountain. Wherever the subject is alluded to, the contrary opinion is universally maintained. As this letter is valuable, not only on account of the facts which it sets forth, but also because it contains the opinions of Mr. Cooke, who was a distinguished lawyer, as to the effect produced upon the claim of Maryland, by the prior occupancy and long continued possession under the Fairfax grant, it is here subjoined.
To the Honorable the Senate and House of Representatives of Maryland: GENTLEMEN,-
By a resolve of the Legislature, passed at the last session, William Pinkney and Philip Barton Key, Esquires, together with myself, were "appointed com- missioners on the part of this State to meet" such commissioners as might be appointed for the same purpose by the commonwealth of Virginia, to settle and adjust, by mutual compact between the two governments, the Western and Southern limits of this State, and the dividing lines and boundaries be- tween this State and the said commonwealth; and also to settle and adjust any claim of this State, on the said commonwealth, to territory within the limits of the other.
In the execution of this trust, I have thought it my duty, not only to acquire
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65
Chap. I.] . OF THE STATE OF MARYLAND.
commissioners to meet those appointed on the part of Maryland; but limiting their powers to the adjustment of the western line. Virginia was unwilling even to enter into a discussion of her right to the territory between the two branches, whilst Maryland went upon the broad principle of referring the whole subject to the commissioners. The power of the Virginia commissioners . being. thus restricted, governor Mercer deemed it unnecessary to
authentic information of the nature of the possessions held under the Virginia grants of land, within the limits claimed by this State, but also to examine carefully the laws of nature and nations, that it might be known, how far those laws would affect the claim of this State, before such claim was formally made, or prosecuted, in case it could not be otherwise adjusted by an amica- ble settlement. :
The true boundary between this State, and the State of Virginia, depends on the " single" question, which is the first fountain of the river Potowmack ? ยท A question which has hitherto rested upon opinion only, without any effectual step having been taken to ascertain the same. Many years ago, the late colo- nel Thomas Cresap was employed by the proprietor of Maryland to explore the country, and to report the facts that might lead to a decision on this sub- ject; but the country then being little known, and in the possession of sava- ges, it is probable he judged more from appearances, than from any actual survey of'it; he reported in favour of the north branch, and for some time after, that was generally supposed to be the first fountain of the river Potowmack. . Afterwards, however, a different opinion prevailed, and the late proprietors of Maryland always claimed the land, and in some instances made grants there- of, lying between the north and south branches of that river. At length, a negotiation commenced between the proprietor of Maryland, and Lord Fair- fax, the then proprietor of that part of Virginia, respecting this subject; and Sy consent it would have been established, that the first fountain of Potow- mack was at the head of the south branch of that river, if the crown of Great Britain had not been interested in the question, and therefore it became ne- cessary to lay the circumstances then existing before the King and Council, and to obtain their approbation and concurrence before any effectual regula- tion could take place; and while matters were thus suspended, the revolution commenced, which finally deprived all parties of their interest in the subject.
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During the war, the citizens of Virginia began to take up, and immediately after the peace to settle, the land between the north and south branches of Potowmack ; and the whole of that country, containing 462,480 acres of land, hath ever since been, and now is, occupied and claimed by the State of Virginia, or persons holding under grants issued by that State. But if upon a full investigation of this subject, it shall be found that the first fountain of Potowmack is at the head of the north branch of that river, still it is of
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66
THE GRANT AND TERRITORIAL LIMITS
[Intro.
request a meeting of the commissioners: and the negotiation ended. (82) At December session, 1803, this correspondence and the acts and resolutions of the two states to which it related, were referred to the consideration of a committee of the House of Delegates of Maryland, by whom a report was made, recom- mending the running of a provisional boundary line (by agree- ment with Virginia,) to start from the extreme western source of the north branch, which should be held to be the boundary line of the two States, until further and definitive measures could be taken to ascertain the southern boundary. (83) This report was not acted upon : and the subject does not appear to have been
essential consequence to this State, to have the real head or fountain of that branch of the river fixed and well ascertained. ' There are three springs, or small rivulets, that unite after running a small distance; and the posses -. sions under the title of this State are at present confined to a meridian line drawn from the most southern of those springs, and the lands to the westward of that meridian line are taken up and held under grants issued by the State of Virginia, although both the other springs extend further.to the westward, and one of them near three miles. Should this last mentioned spring be deemed the first fountain from whence a meridian line is to be drawn for our western boundary, it will give a country, in addition to what the State now possesses, of three miles broad, and upwards of thirty miles in length.
. On reviewing the law of nature and nations, it will be found, that prior occupancy can give no title to Virginia in this instance; nor any length of time bar the claim of this State, if it is otherwise well-founded. Political laws in this, and in mest other countries, regulate this subject among the citizens of their respective states; but it cannot be done between independent governments, unless by treaty. .
Should the legislature of this State persist in the wish to settle the bounds of this State and Virginia, in the manner proposed by the resolve of the last session, (and which has been delayed by the State of Virginia not having made any appointment of commissioners for that purpose,) it will be neces- sary to appoint another commissioner in the place of Mr. Pinkney, who is now absent on public business, and some other person instead of myself, as it will not be convenient to me to attend further to the subject.
WILLIAM COOKE.
14th November, 1796.
(82) See the letter of governor Mercer of June 5th, 1802, and the executive communication of November, 1802, to the General Assembly in Council Chamber Records.
(83) Journals of the House of Delegates.
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67
OF THE STATE OF MARYLAND.
Chap. I.]
revived until 1810, when another resolution was passed similar to that of 1801, under which nothing, was done; and the subject again slept until it was revived by Maryland in the Act of 1818, chap. 206.
This State had now become wearied with her efforts to reclaim the territory south of the north branch: and hence this Act of ISIS, in proposing to Virginia the appointment of commissioners, Maryland Act of agrees to adopt the most western source of the of the negotia- north branch, as the point from which the western IS18 and the issue tions under it. boundary shall start. At December session, 1S21, of the' Assembly of Virginia, an Act was passed, which purported to meet and reciprocate this proposition of the State of Maryland; but was, in fact, materially variant from it. (84) The Virginia Act did in fact beg the whole question, and left nothing open for ne- gotiation. The Act itself undertook to determine the point from which the line should start, and left nothing to the commission- ers but the power of locating it in conformity to its instructions. They were specially instructed to commence the western boun- dary at a stone planted by Lord Fairfax on the head waters of the Potomac : and thus they were tied down to the old adjustment, between Fairfax and the crown. The Virginia Act was therefore entirely different from that of Maryland, which directed the com- missioners to begin at the most western source of the north branch, be that where it might: and being dissimilar, it did not justify the appointment of commissioners on the part of Maryland. Our Act of 1818 expressly directed, that the appointment, on the part of this State, should be made only after Virginia had embra- ced its propositions by the passage of a similar act; and. no Act could be considered similar, which did not confide to their com- missioners the same powers of adjustment, and adopt the same basis of settlement. This was, however, overlooked by the execu- tive of Maryland: and commissioners were appointed on the part of both States, who assembled on the head waters of the north branch in the summer of 1824. (85) Upon the instant of
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