USA > Pennsylvania > Chronicles of Pennsylvania from the English revolution to the peace of Aix-la-Chapelle, 1688-1748, Vol. I > Part 3
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With the money claim against the Crown, and the general friendliness of the Duke of York, William Penn saw the opportunity to obtain what was deemed Crown land, but was occupied by the Duke rather as
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CHRONICLES OF PENNSYLVANIA.
the Crown's agent, but really because he was heir pre- sumptive. ' Penn therefore petitioned the King for a grant of the land north of Maryland, bounded on the east by the Delaware River, and extending westward as far as Maryland extended, and northward as far as plantable. It is probable that Charles II, who had once released 500 Quakers from imprisonment, and was at heart a Roman Catholic, had been made aware of and sympathized with the object of securing a land for religious toleration. When the petition had been referred to the Committee of the Privy Council for Trade and Plantations, Penn appeared before those Lords. He says in a letter of August 14, 1683, that on that occasion, he standing at the chair of the Lord President, some said that Lord Baltimore had but two degrees, whereupon the Lord President (who was John Robartes, Earl of Radnor) turned his head to Penn, and said "Mr. Penn, will not three degrees serve your turn?" and Penn replied "I submit both the what and the how to this honourable Board." The minutes say that he declared that he would be satisfied with three degrees, and would, in consideration, release the debt or part of it, and wait for the balance until the King could better pay it.
Cecil Calvert, second Lord Baltimore, had died and been succeeded by his son Charles, who had gone to Maryland before Penn made his application. The Duke of York was also away from England. Copies of Penn's petition were sent to the agents of Lord Bal- timore, and to Sir John Werden, representing the Duke of York. Baltimore's agents, in answer, claimed the Susquehanna Fort-undoubtedly the one marked on the map printed seven years before-as the boun- dary of Maryland, and asked that Penn and his people be prohibited from furnishing the Indians with arms and ammunition. There had been war with the Sus- quehannocks since the printing of the map. The agents
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NATIONAL ADVANCE AND ROYAL CHARTERS.
asked that the boundary line run east from the Fort to the Delaware River, and west from the Fort. The Duke's agent, Werden, in his turn, stated that the land applied for had been held as an appendix and part of the government of New York, and, although it should not prove to be strictly within the bounds of the Duke of York's patent, his right was preferable to all others. Penn was told to arrange this matter with the Duke, and, as to Maryland, Penn agreed that Susquehanna Fort should be its boundary, and that he be subjected to restrictions as to furnishing arms or ammunition to Indians. It may surprise us that the latter stipula- tion does not appear in the charter granted to Penn, but the disregarding of Susquehanna Fort in framing the description inserted was perfectly fair. Maryland extended along the Susquehanna River or Chesapeake Bay to the fortieth parallel, and would go beyond the Fort, if that was south of the parallel; so, if any occu- pation of the site of the Fort was an encroachment upon what the King was free to grant, Penn could ask abandonment. Penn obtained the consent of the Duke to a grant north of the actual colony of which New Castle was the chief town, such grant extending north- ward and westward as far as the King should please, "beginning about the latitude of forty degrees." If Penn's land therefore ran north from 40°, he would be clear of any claim by either Lord Baltimore or the Duke, and need not care who had the right on the south. A month later, having seen a description drafted by Penn, Werden wrote that it was the Duke's intention that the southern limits should be twenty or thirty miles above New Castle, which distance, Werden said, "we guess may reach as far as the beginning of the fortieth degree." The last words "beginning of the fortieth degree," may have been merely an awkward rendering of the Duke's words, and intended for "as far as the beginning spoken of by the Duke, namely,
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forty degrees." Werden may have been one of those who called the space north of the fortieth parallel "the fortieth degree," having in mind that at such parallel the latitude begins to be forty degrees and so many minutes. In fact, although this is not found to have been contended, the "beginning of the fortieth degree" could mean the part of it first reached in a description reading downwards. Those who say that Werden meant the thirty-ninth parallel, that is the end or com- pletion reading northwards of thirty-nine of the ninety spaces from the equator to the north pole, must see that in such case Werden, in explaining the Duke's in- tention, would be contradicting what the Duke had said; moreover, it being pretty accurately known how near Cape May was to the thirty-ninth parallel, and that it was a long distance from Cape May to New Castle, Werden could not have been looking for that parallel twenty or thirty miles above New Castle. As twenty- three miles due north of the old centre of that town would actually carry any location clearly above the fortieth parallel, we must conclude that he had the latter in mind, with remarkably accurate data concern- ing it, in saying twenty or thirty miles above New Castle.
Other people's opinion was more agreeable to Penn, who became dissatisfied with the amount of river frontage proposed for him, that is below the unnavi- gable rapids at Trenton. He was willing to leave twelve miles between his land and New Castle, and he expressed the opinion, so Werden wrote to the secre- tary of the Committee, that twelve miles "would fall under"-an expression similar to "subjacet" in the Baltimore patent-"the beginning of the fortieth de- gree." Certainly, it was not being urged in favor of a new starting-point that it would be south of the fortieth parallel, and so conflict with the boundaries of Maryland. Penn was meaning the same scientific line
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as Werden: and, after the expression "the beginning of" was finally put into the charter, it was for years deemed by everybody either as equivalent to "the ex- tremity of" or as surplusage. Markham at Upland in 1682 had no other view; for, while the northern boun- dary of Pennsylvania was similarly fixed at "the be- ginning of the three and fortieth degree," he, accord- ing to his account, told those present that Penn's grant ran to latitude 43d 00'. There is no reason to doubt that before Werden's last mentioned letter to the sec- retary, Penn had been told that New Castle was much
nearer the fortieth parallel than it is: in fact Lord Baltimore's commissioners eighteen months later made it out to be about ten minutes of latitude nearer. After much pertinacity, Penn seems to have convinced every- body. Lord Chief Justice North wrote a description, making, as appears from the certified copy used in the case of Penn v. Lord Baltimore, the southern boun- dary the straight line which he followed Werden by calling "the beginning of the fortieth degree," but excepting all lands in the possession of the Duke within twelve miles of New Castle. This exception was afterwards crossed out, and into the description was interlineated the fixing of the starting-point at the distance of twelve miles northward of New Castle, and also there was an alteration of the southern boundary to a circle drawn at twelve miles distance from that town north and westward "unto the beginning of the fortieth degree and thereon by a straight line west- wards to the limit of longitude." Hazard's Annals of Pennsylvania has combined both the original and al- teration as the Chief Justice's description. The inter- lineations and alterations appear to have been the work of Werden. On January 15, 1680-1, the boundaries with the alterations of Werden were read and approved by the Committee. It will be seen that, as the Delaware runs, the frontage thus withdrawn from the operation
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of Lord Baltimore's charter, i.e. lying between the end of twelve miles from New Castle and the fortieth paral- lel, was about twenty-six miles, but the agents of his Lordship, and in fact the other people in England, had no such knowledge of the course of the river and the location of the parallel as to appreciate this. If the twelve-mile circle would indeed strike the parallel, his Lordship would be losing at most a trifle of frontage not worth considering. The officials, on the other hand, were convinced that the frontage south, as well as north, of the parallel was not Lord Baltimore's, but the King's, to give to whom he pleased, or the Duke's, yielded by his consenting to the gift. As to the land west of the semicircle, or arc, of twelve mile radius, nothing within Lord Baltimore's lines was supposed to be taken from him, for that semicircle, or arc, would, it was said, reach the fortieth parallel, which would from the point of intersection be the southern boundary of the new province.
While the treatment of the words "the beginning of" as surplusage would have made Penn's southern boundary, for nearly all the length, recede from the state's present line, the northern boundary would have been recognized as running along the forty-third par- allel through the present territory of New York from the point north of the source of the Delaware to the Niagara River, and the sites of St. Johnsville, Rich- field, Waterville, Cazenovia, Auburn, Geneva, and Buffalo would have been in Pennsylvania with three times the frontage on Lake Erie which our Common- wealth afterwards bought. With the question of the northern boundary, this history is not concerned.
As finally issued, the patent to William Penn called for the tract bounded on the east by the Delaware River "from twelve miles distance northward of New Castle towne unto the three and fortieth degree of northern latitude," if the river should extend so far
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northward, but if not, then by the river to its source, and thence by a meridian line "unto the said three and fortieth degree," "the said land to extend westwards five degrees in longitude to be computed from the said easterne bounds," and "to be bounded on the north by the beginning of the three and fortieth degree of north- ern latitude and on the south by a circle drawn at twelve miles distance from New Castle northwards and westwards, unto the beginning of the fortieth degree of northerne latitude and then by a streight line west- wards to the limitt of longitude above mencioned."
The description of the arc of the circle at the south- eastern corner, viz: "a circle drawn at twelve miles distance from New Castle," plainly means, as Lord Hardwicke afterwards said, and as Penn intended, the arc of a circle having a radius of twelve miles with the heart of the little village of New Castle as a centre. Therefore, we see by our modern maps, as Baltimore and Markham saw by astronomical observations, that the boundary lines do not close together. King Charles, contrary to "he never says a foolish thing," had officially uttered nonsense.
The date of the charter, or, more properly, letters patent, was the fourth of March in the thirty-third year of the reign (1680), a day which in Scotland was called March 14, 1681.
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CHAPTER II.
THE ASCERTAINMENT OF THE SOUTHERN BOUNDARY.
The third Lord Baltimore and Markham-The Duke confirms Pennsylvania, and grants Delaware to Penn-Further proceedings of the two Propri- etaries-Decision of Privy Council-Advantages of the Penns in the subsequent struggle Settle- ment of Nottingham-Maryland takes the offen- sive-Agreement of 1732, and failure to carry it out-Temporary line run-Case of Penn et al. v. Lord Baltimore and final determination.
In the uncertaincy of astronomical observations for latitude and longitude, it was necessary that the rela- tion of localities to the equator and the central meridian should be settled upon by agreement. For approxi- mations within a few miles, the statement of maps might be accepted, but when, as upon the Delaware River, there was the question of the ownership of a headland or of the mouth of a creek, nothing would be authoritative but an instrument of the latest improve- ment together with the latest book of calculations, and it was always conceivable that something less clumsy than the method of the time might in future be devised, and show that the determination had been incorrect by quite a distance. It would result, that, unless there was to be an intolerable shifting of boundaries, a line should be arbitrarily fixed by the parties interested, which neither side should be allowed to gainsay. A letter was issued by the King less than a month after the patent to William Penn, and dated April 2 in the
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33rd year of the reign (1681), recommending Penn to Lord Baltimore's good neighbourliness, and recom- mending as conducive to good neighbourhood that Bal- timore appoint persons to make in conjunction with Penn's agent a division according to the degree of north latitude by finding landmarks. Lord Baltimore was then residing in Maryland.
He was Charles Calvert, the third Baron. Ready to extend courtesy, he invited to his house Penn's deputy, Markham, who remained there ill for three weeks: and likewise this Roman Catholic nobleman later attended Penn to Friends' Meetings in Maryland, and sent mili- tary escort to wait for him. The Baron, with all his politeness, was neither easy-going nor weak, but care- ful of his rights, positive, spirited, expecting and re- ceiving deference, not only in Maryland, but in neigh- bouring provinces also, as almost the only person of his rank then sojourning in America. He was not politic, not one to take into account that the Quaker with whom he had to deal possessed the favor of the King and the Duke of York, while he himself, although a Roman Catholic, had no influence with either.
By appointment of Lord Baltimore, made after Mark- ham's visit to him, he and Markham were to meet at Augustine Herman's on Bohemia River on June 10, 1682. Baltimore sent commissioners, and, Markham not appearing, they took observations during the next seven days, making Herman's house "to lye in the latitude of 39 d. & 45 m." This meant that Lord Baltimore's charter called for an extent northward seventeen and a half miles further, or, as his commissioners reported, at least fifteen miles. As a matter of fact, the observa- tion was more favorable to Penn than present calcu- lations, which place the 40th parallel more than thirty- five miles north of the site of Herman's house. The mouth of the Octorara Creek hereafter mentioned is only about eleven miles more northerly than Herman's
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house. The commissioners went from that house to New Castle, about twenty miles to the northeast, and, there, on June 27, made an observation with a sextile, of six or seven feet radius, sent by Markham from New York, and belonging to Col. Lewis Morris. Lord Baltimore's Narrative (Penna. Mag. Hist., Vol. VI, p. 412 &ct.) says that the latitude of the town was thus found to be "thirty-nine degrees forty odd minutes." This may mean forty minutes and a few seconds. The errors possible in observations will be seen when we read Lord Baltimore's statement that on Sep. 24, 1682, his people and Richard Noble, a Quaker, by the same sextile found Upland (now Chester), which is about twelve miles more northerly than New Castle, to be 39° 47' 5" N. Markham, who did not take part, quoted, in his Answer to the Narrative, Haig's notes that he was told 39º 45'. The observation, whether the minutes were 45 or 47, showed that a circle around New Castle of twelve miles radius would not come within fourteen miles at the very least of touching the 40th parallel. Nor would there have been much closer approach to it, if the twelve miles distance northward from New Castle of the starting-point on the river had been measured on a longitudinal line, and the circle had been drawn with a radius of the distance of that point from the town; a meaning which was not intended by either Penn or whoever, King or official, read the charter before it passed, but which might have been claimed, had the Duke held on to the land around New Castle. As to the thirty-ninth parallel, which in later years was claimed to be meant by "the beginning of the fortieth degree," the circle, even if carried around to the south would not have come within seventeen miles of that parallel under the most favourable elements for the calculation. In the course of a conference between Bal- timore, Markham, and their attendants on the day after the observation, nobody suggested that "the be-
ASCERTAINMENT OF THE SOUTHERN BOUNDARY. 33
ginning of the fortieth degree" was anything else than the fortieth parallel. The Maryland surveyor laugh- ingly remarked: "His Majesty must have long com- passes": the naval veteran, Markham, replied that he trusted the gentlemen would "not limit his Majesty's compasses." Well would it have been for the Calverts, if the King's compasses had been considered as mark- ing the correct distance of the parallel north of New Castle, and the Delaware frontage had been let go!
Markham, on this occasion, suggested an interpreta- tion of Penn's charter which made the lines of the figure meet, and which was decidedly favorable to Lord Baltimore, as it gave him in the interior the land up to the astronomically fixed fortieth parallel, the interpretation being that the circle passing through a point on the river twelve miles north of New Castle was not to be described around New Castle, but have as its centre the fortieth degree, probably meaning the point in the fortieth parallel due north of the point on the river. Thus on a map with the north at the top, the starting-point of Pennsylvania on the river would be the bottom of a circle, instead of rather below the top of one; and the shape of the Province would be pretty much a trapezoid with a bump on its south- eastern corner, instead of a trapezoid with a piece bitten out: This solution, which was not agreed to, was certainly not Penn's or the Duke's interpretation, as will be seen from the Duke's deeds of Aug. 24, 1682, unknown to Americans in September, but had Balti- more agreed, the question would have been settled at once, to the saving of trouble, expense, and bloodshed; for Markham was fully empowered to act for Penn, and the latter would not have been allowed to repudiate the settlement. Markham declined to proceed up the river until the instrument should show 40°, to put the boundary there, but promised to join in ascertaining that latitude at the heads of any rivers "respecting"
3
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(i.e. falling into) Chesapeake Bay, apparently to run the division for that basin. Baltimore and he parted, he refusing to surrender anything on the Delaware north of twelve miles above New Castle. Baltimore went to Marcus Hook, or Chichester, and warned the people not to pay quit rents to Penn, and announced the in- tention of returning and taking possession. This so disturbed the people there that Markham, who had packed up to go to the Chesapeake, thought it better not to leave, and so wrote to Lord Baltimore (letter without date printed in Penna. Archives, 1st Series, Vol. I, p. 39), who was waiting for him at New Castle on the 26th. It appears that, after receiving this letter, Lord Baltimore, perhaps at New Castle, or carrying the instrument to the Elk River, took another observa- tion, for subsequently he mentions one taken on the 27th. About a month later, Markham's powers ceased, Penn arriving at some point twelve miles above New Castle, and therefore within the jurisdiction, probably on October 28, if he did not, before stopping at New Castle, pass on to Upland on the 24, the date which he gives for his arrival, but which is supposed to refer to his coming within the capes-but Penn was not very accurate about dates.
Markham had declared that he was accountable only to the King and the Duke of York, not knowing that the Duke's rights had been already transferred by him to Penn. In those days, it took nearly two months for a letter to go from England to Pennsylvania, unless the ship carrying it came directly to New York or the Delaware, and the opportunities for transmission, with or without much time being taken after the end of the ocean voyage, were not frequent.
By deed dated Aug. 21, 1682, the Duke relinquished to Penn and his heirs and assigns all estate, right, title, interest, rents, services, claims, duties, payments, prop- erty, claim, and demand in the lands, islands, tene-
ASCERTAINMENT OF THE SOUTHERN BOUNDARY. 35
ments, hereditaments, and other things comprised in King Charles II's patent to Penn "within the bounds and limits therein mentioned." 141891
The Duke, furthermore, by two deeds dated Au- gust 24, 1682, conveyed to Penn and his heirs and assigns the territory measured by a twelve miles radius around New Castle on the western side of the Dela- ware and the territory to the south of that circle not occupied by Maryland. Thus did William Penn ac- quire what is now the state of Delaware, which was spoken of from that time until the American Revolu- tion as "the Territories," "the Counties thereunto [to Pennsylvania ] annexed," "the Country of New Castle and tracts depending thereon," or "the Counties of New Castle, Kent, and Sussex on Delaware," or, more commonly, as they were popularly called, "the Lower Counties." One difference there was between the patent for Pennsylvania and the two deeds for the Lower Counties : by the former, Penn and his heirs and assigns were to hold the land directly of the King; by the latter, they were to hold of the Duke of York as intermediate, or mesne, lord, who was to receive an annual rent of five shillings for the land around New Castle, and of a red rose and half the year's profits for the land south.
Penn says that he gave up extent to Lake Ontario, being thought to be getting a front on the Chesa- peake. In the summer of 1682, he appears to have learned either from reports from Pennsylvania, or from a dependable statement of the latitude of Wat- kin's Point and the length of the Bay, that the latter did not extend as far north as 40°; so that if he was confined to what was north of the fortieth parallel, he was shut off from the Bay. He therefore sought the aid of the friendly King. The view was not unreason- able that, as astronomers could not come to an exact conclusion, the King could fix what should be taken as
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the parallel. Without some such control, Lord Balti- more seemed determined to run no line that would be a compromise. By adhering to the letter of his charter, he would, however, get more land than had been in- tended to be given to his father. In 1632, when two full degrees were calculated to amount to only one hundred and twenty miles, and Watkin's Point was deemed to be above north latitude 38°, the second Lord was supposed to be getting less than two full degrees, possibly one hundred and fifteen miles at most, yet by a degree being found to be seventy, instead of sixty, miles, and Watkin's Point being some miles below North latitude 38°, possession by his successor to the fortieth parallel would make an estate of no less than one hundred and fifty miles and perhaps more. The question whether the Calvert family could thus gain so much beyond the original idea, had been talked about in the Committee for Trade and Plantations when Penn's application for a grant was under con- sideration. Since then it was appearing that such gain by the Calverts would block Penn's colony from any front on Chesapeake Bay, which the promoter thought a necessity. To public officials, even without any de- sire to favor Penn, it was not hard in the circumstances, to take a view that would facilitate the planting of a new colony, and thereby the further development of England's American territory. Penn obtained in August, 1682, and took across the ocean, another royal letter to Lord Baltimore. This recommended him to fix his northern bounds by measuring at sixty miles a degree two degrees from Watkin's Point as settled upon by the Commissioners from Virginia and Mary- land.
This royal letter did not mean, any more than the preceding one, to allow the Calverts any of what had been the Dutch possessions: but the third Lord Balti- more felt strongly that the land on Delaware Bay and
ASCERTAINMENT OF THE SOUTHERN BOUNDARY. 37
River to 40° north was rightfully his, and, while, in the reports in the Maryland Archives of his conferences with Penn, it appears as if Baltimore was contending as a preliminary for his extent on the Chesapeake and Susquehanna, yet ever and anon he and his heirs, until the final settlement, were recurring to this hopeless claim to the country of New Castle &ct.
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