USA > Pennsylvania > Chronicles of Pennsylvania from the English revolution to the peace of Aix-la-Chapelle, 1688-1748, Vol. I > Part 4
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When Baltimore and Penn first met after the latter's arrival, the former, according to his Narrative, was inclined to think reasonable, although he asked time to consider, Penn's request for an opening on the Chesa- peake. When, however, in formal conference, in pres- ence of attendants, Penn produced the royal missive, Baltimore, no doubt angered, did not flinch from in- sisting upon his right up to the 40th parallel, wherever it might actually be. Penn tried to induce him to be satisfied with two degrees measured at seventy miles each, or with two and a half measured at sixty. Bal- timore mentions, but Penn does not, Penn's request, that, if Maryland must extend to the 40th parallel, that parallel be ascertained by accepting as true the latitude, viz : 37° 5', so long attributed to Cape Charles, but then thought far from correct, and by measuring from Cape Charles, perhaps at seventy miles a degree. Baltimore objected to any other basis than the surest contem- porary astronomical observation. On Feb. 28, 1682-3, three persons employed by Lord Baltimore took an observation on Palmer's Island with a sextant of about ten feet radius, and found the latitude 39º 44'. This was disclosed to Penn by Lord Baltimore at New Castle, when, on May 29 and 30, they had further conference. Lord Baltimore retired from that conference announc- ing that he would himself make further observations for the boundary. Penn sent after him in writing an offer, which he had made verbally, to join in the obser- vations, if Baltimore would fix a "gentleman's price" per mile, at which Penn could buy the land found to
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belong to Baltimore north of the head of Chesapeake Bay. Had Baltimore brought himself to bargaining, he could have secured good terms from Penn, to whom some frontage on the Chesapeake and quiet possession east of the Susquehanna and along the Delaware were worth everything west of the Susquehanna. Baltimore did offer soon afterwards a Chesapeake frontage in ex- change for all the Lower Counties, but this naturally was refused by Penn.
No further meeting between the two Proprietaries was held, and, in a letter of Aug. 14, 1683, to the Lords of the Committee for Trade and Plantations, Penn says that, instead of notice being sent of a day, expected to be in September, when Lord Baltimore would go to the head of the Bay, an observation had been taken, a line run, and trees marked without notice to Penn, and a demand had been made. This does not mean that the demand followed the actual marking of the line north or east of the ground demanded, and indeed the de- mand may have been that made by proclamation issued about the time of the conference, as to which his Lord- ship had prevaricated; first, on complaint made, deny- ing the issuing of the proclamation, and afterwards, on its being proved, explaining that proclamation as but a matter of form to keep alive his claim. We learn from a proclamation made in 1722 by the Lieutenant- Governor of Maryland that an observation was taken at the mouth of Octorara Creek on Sep. 15, 1683, the latitude of that place being found to be 39º 41' 19", from which fact denial was made of the third Lord hav- ing ever caused an east line from that place to be run as the northern boundary. That Lord Baltimore was in that vicinity about that time, is clear from a note with his initials in the margin of the record in the Maryland Archives of the commission about to be mentioned, "given to my cousin Talbot when I was last up the Bay." Whether Baltimore then started a
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line, and blazed trees, as one story goes, is not impor- tant, for he persisted in claiming to the parallel, which he knew must lie further north than the mouth of the Schuylkill River. He commissioned George Talbot, under date of Sep. 17, 1683, to go to the Schuylkill at the Delaware River, and demand possession of the land along said river [i.e. Delaware] lying south of the 40th degree, adding the words: "according to an east line run out from two observations one taken 10 June 1682, the other 27 7ber, 1682, in obedience to his Majesty's commands expressed in letter of 2 April, 1681." It may be concluded that if the second of these observa- tions mentioned contradicted the first, Lord Baltimore took the mean, and that the mean located the fortieth parallel a little below the southern point of Philadelphia as then laid out, in other words well above the mouth of the Schuylkill, in the not very precise measurements of those years. The reason for relying on those obser- vations was, doubtless, their having been taken after full notice to Markham, and in default of his atten- dance. That the line mentioned had actually been run, is not necessarily meant by the words of the commis- sion or by Talbot's remark that he was authorized to go wherever the line took him, Penn making the point that the commission did not authorize Talbot to cross the Schuylkill. Talbot went to the City of Philadel- phia, or at least east of the Schuylkill, and, on Sep- tember 24, in the absence of William Penn, demanded of Nicholas More, treated as Penn's deputy, all land lying on the west side of the Delaware River and south of 40° north latitude. Penn set forth on Oct. 4 the reasons for not complying with the demand, speaking of the observations and line run accordingly as performed by Lord Baltimore and his agents only, and not by the two parties jointly, as required by the King's letter. . There may have been an attempt by Talbot at a line. In January, Baltimore sent Capt. James Murfy to in-
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duce the people of the disputed region to accept ten- ancy. In further contention for a line which struck the Delaware far north of Naaman's Creek or the lati- tude of the mouth of the Octorara, Talbot, calling him- self his Lordship's Commissioner for Disposal of Lands in New Ireland and the western side of Delaware River, made proclamation dated Feb. 1, 1683-4, "to all persons dwelling on the western side of Delaware Bay and River between the Creeks of Schuylkill and Whore- kyll," offering all the privileges of Marylanders to those who, under their hands and seals, promised fidel- ity, and offering to those of them who had land by any title a confirmation by patent sent without expense at 2s. per 100A, and protection from all arrears to his Lordship or any one else.
It appears to have been after this that Talbot ran or completed the line known as the Octorara line, or Talbot's line, extending from the mouth of the Octorara to the Delaware at about the mouth of Naaman's Creek. Samuel Hollingsworth, who was a boy nine years old, when, in 1682, he was brought to Pennsylvania by his father, Valentine Hollingsworth, and also John Mus- grave, whom Valentine at the same time brought as a servant thirteen years old, made affidavit on June 4, 1735, that after they had lived about a year at Valen- tine's land on Shell-pot Creek about three miles north- east of the present Wilmington (land surveyed Dec. 27, 1683, under warrant of 12mo. 10, 1682), Talbot and George Oldfield and two or three others came to lodge there one cold evening, saying that they had come from the mouth of the Octorara, and had run a line from thence, and intended to continue it to the Delaware by Lord Baltimore's order as the division line between him and Pennsylvania, and the next day they went off to continue the line to the Delaware, and came back that night, reporting that they had done so; further- more Hollingsworth said that the line was very plain
ASCERTAINMENT OF THE SOUTHERN BOUNDARY. 41
for years, trees being marked high up by men on horse- back. Lord Baltimore, in a commission to Talbot, dated March 19, 1683 [end of year by Old Style], says "we have caused two observations to be taken at two several times and an east and west line accordingly to be run out and marked at great disadvantage to ourself being some miles south of the northern latitude of 40%."
In this later commission, Talbot was required to take as many persons as he should think convenient, and go to the Governor of Pennsylvania, and demand all the land lying on the west side of the Delaware River and Bay and seaboard to the south of the 40th degree, and more particularly that part thereof which lieth to southward of the marked line aforesaid. Talbot took a number of men, and went into New Castle County to within six miles northwest of New Castle town, and at the bridge across the Christiana built a fort on the land of the widow Ogle on the north side of that creek, raising a breastwork of trunks of trees, and palisading it. When the Sheriff and several magistrates of New Castle County demanded Talbot's authority for so doing, Talbot had the guns and muskets of the garrison levelled at them, and read his commission from Lord Baltimore, and refused to evacuate. Talbot wrote a letter to Penn on April 26, 1684, making the demand as specified in the commission of March 19. Penn does not refer to this in his declaration dated 4mo. 4, in which he commanded that no person submit to Talbot's taking possession, and levying war, as he had done and threatened to do, and that no one seat any lands within Penn's limits without his warrant, and that all magistrates, officers, and inhabitants continue as the Duke had placed them, and seize any person seducing the people of the Province and Territories from their obedience, and especially seize the persons engaged in this invasion. The fort was not maintained very long.
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The line with which Lord Baltimore had offered to be satisfied, giving him the Lower Counties, except the little piece above the latitude of Naaman's Creek, was never accepted by Penn, but the western fraction of the line was made use of by Penn's representatives to confine Maryland to a part of the Susquehanna far below any approximate location of the true boundary. Baltimore's great mistake of physically marking what was tentative created a misunderstanding when the cir- cumstances were forgotten, and gave the opposite party a fact upon which to set up the legal plea of estoppel.
The fight between the two Proprietaries being trans- ferred to London, Penn left America in 6mo. (August), 1684.
Already measures had been taken to secure for Penn a better documentary title to what is now Delaware. The bill in equity of the Penns against Lord Baltimore states that the Duke of York obtained a patent from the King dated March 22, 1682 (Old Style, and there- fore after the Duke's deeds to Penn), for the town and fort of New Castle and the land within the compass or circle of twelve miles about the said town lying on the Delaware and the islands in the river and also the tract on the river and bay beginning twelve miles south of New Castle and extending to Cape Lopin. The bill also said that the Duke, having obtained this patent for the benefit of William Penn, handed it to the latter, and that it was then (1735) in the complainants' (the Penns' custody. In a list preserved by the Historical Society of Pennsylvania of conveyances affecting the Penns' dominions, this patent seems to be incorrectly noted as a patent to William Penn, but there is noted a surrender dated April 10, 1683, and acknowledged by the Duke of York three days later before William Beversham, a Master in Chancery, whereby the Duke surrendered the said territory to the King. This would
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have disposed of any right acquired under the alleged patent, subject, it would seem, to Penn's right as vassal, if such patent was valid, but the surrender may be construed as relinquishing mere possession. It was to clear the way for a valid patent, as to which the bill in equity mentions the application and subsequent pro- ceedings. On April 17, 1683, perhaps while a project for a fresh charter to the Duke was pending, the Com- mittee for Trade, having read a letter from Lord Baltimore, requested his Royal Highness to make no conveyance to Penn until Baltimore's bounds were settled. Early in 1683, a warrant for a patent to the Duke was issued, but Lord Baltimore's agent peti- tioned that such a patent should not pass the great seal until the King should be satisfied as to the extent of Maryland, because Maryland included the town of New Castle and adjacent country mentioned in the patent proposed. On May 31, the King in Council referred the whole matter to the Committee for Trade and Plantations for examination and report. The Com- mittee, on June 12, called before them the agents of Lord Baltimore and of Penn, and the issue was raised whether in 1632 the Dutch were possessed of the land in question, which fact Penn's agent promised to prove. A year later, the Solicitor for the Duke of York ap- peared in the matter, and on Sep. 30, 1684, said that the proof depended upon Penn himself coming to Eng- land, where he was soon expected. The matter not having been disposed of before Feb. 6, 1684-5, when Charles II died, and the Duke of York became King, the Attorney-General and Solicitor-General in 1717 concluded that no patent to James for the Lower Counties ever passed the great seal. A quo warranto proceeding was begun against Lord Baltimore, inquir- ing into the validity of the privileges conferred upon him by the charter. While it was pending, William Penn, on account of whom, as tenant, the matter of
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Baltimore's petition against a patent for the Lower Counties had been laid over, asked in August, 1685, that it be taken up, as being a question of property, and not of power, as raised by quo warranto. In October, the Committee decided that the land granted to Lord Baltimore in 1632 was intended to be only such as at the time was uncultivated and not inhabited except by savages, and that the western shore of Delaware Bay and River at that time had been planted and was inhabited. A very fair, a substantially just, recommendation was made on Oct. 31 to the King in Council, viz: that the land between the eastern sea and river and the Chesapeake be divided into two equal parts by a line drawn from the latitude of Cape Hen- lopen to the 40th degree, the eastern part to be the King's, the western part to be Lord Baltimore's. On Nov. 17, 1685, an order was made in Council approving and directing this. Nothing was said about Penn's right under James in the recommendation or order. It was afterwards claimed that this order enured to the use of William Penn as James's tenant in fee under the old deeds.
The right of James, however, at this time did not hang upon his acquirement of the land when Duke of York, and the legal conclusion must be that his true title to the west side of Delaware Bay and River, justi- fying the decision, came to him when he succeeded Charles as King. Was the sovereign to be bound as trustee by his grants made when a private citizen without right to the property? or were the covenants then made for warranty and further conveyance so obligatory and beyond his royal discretion that a court of equity would afterwards presume a royal patent from him to carry them out? Was succeeding sovereigns' right, which was supposed to be for the good of the community, so to be divested? James as King did in- tend to give William Penn a patent for the Lower
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Counties. This, moreover, as we learn from a petition of Hannah Penn of 1720, was to extinguish the rent reserved in the deeds of 1682. Logan had heard that the patent had gone through the various offices, and was ready for the great seal, when the Lord Chancellor made objection to some of the powers conferred. The Revolution prevented the final issuing.
From the livery of seisin at William Penn's first visit to America, when he entered the fort at New Castle, and turf and twig and a porringer of river water and soil were delivered to him there, and Mark- ham, as his attorney, received similar tokens on Appo- quinimy Creek, the inhabitants of the Lower Counties accepted their new master. They chose seven free- holders from each county to meet in Assembly with representatives from the counties of Pennsylvania on December 6, 1682. At that meeting, upon petition of seven persons from New Deal (Sussex), six from St. Jones's (Kent), and five from New Castle, an act of Union was passed on Dec. 7, by which those counties were annexed to the Province of Pennsylvania, and the people subjected to the same laws, and invested with the same privileges, as the people of the Province. This proceeding, which could not have force in political matters against the Sovereign, had no effect upon the disputed ownership of the soil: yet the region con- tinued to be under the same government as Pennsyl- vania until the American Revolution, although with a separate legislature after 1702, and with the stipulation of the Penns in writing, whenever the appointment of the acting Governor was approved, that such approba- tion by the King or Queen should not prejudice the King or Queen's right to those countries. Within the region, the Penns sold and confirmed lands, and inter- mittently collected rents until Delaware, on July 4, 1776, was declared a free and independent State. Fol- lowing that, the People decided adversely to any title
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having been rightfully in the Penns; for while, in di- vesting the Proprietaries of unsold land and of quit rents, the Assembly of Pennsylvania made exceptions, and granted a partial compensation, the Assembly of Delaware neither allowed nor paid anything.
The decision, or order, of 1685, whatever its effect as between King James and Penn, established both the eastern and northern boundaries of Maryland, and should have been accepted by the Proprietaries thereof as shutting them out from the land east of the line prescribed, and by the Proprietaries of Pennsylvania as making them in their turn recede from the land west of the line as far as the fortieth parallel astronomically fixed. The King in Council was, as Lord Hardwicke afterwards said, the proper tribunal for the determina- tion of boundaries, even where, as in this case, the King was deciding upon his own rights, for it was presumed that he would be just. It is likely that if Lord Balti- more had accordingly yielded the great bone of con- tention, the Lower Counties and the river frontage above them, a line run by him or his orders according to the mean of the observations would have been ac- cepted by William Penn as the location of the parallel. The Proprietaries of Maryland, however, tried to over- throw the decision, and the Proprietaries of Pennsyl- vania maintained possession of what they had far south of even an approximate location of the fortieth par- allel.
Throughout the long struggle between the opposing Proprietaries, the advantage was nearly always on the side of the Penns : at the beginning, in William Penn's standing at Court, and after the Revolution of 1688, in the greater toleration of Quakers than of Papists, and, except for a very short period, in the uninterrupted possession by the Penns of the government of Penn- sylvania and Lower Counties, and, except at rare inter- vals, in the preference of the inhabitants concerned,
ASCERTAINMENT OF THE SOUTHERN BOUNDARY. 47
and almost always of the more substantial inhabitants, for the Penns, rather than the Calverts, as landlords.
In 1689, Charles, 3rd Lord Baltimore, was outlawed by the Court of King's Bench in Ireland on the charge of high treason, and this was followed in 1691 by the appointment of a Royal Governor over Maryland. Although King William III was convinced that Bal- timore was innocent, and issued a warrant in 1693 for reversing the outlawry, Baltimore did not seek to avail himself of this by going to Ireland, although sub- sequently petitioning Parliament to relieve him; and the powers of government of the Proprietary of Mary- land remained suspended during the rest of this Baron's life.
Under Royal rule, Maryland officials endeavored to have the boundary line run in accordance with the order of 1685, and Penn, on Sep. 1, 1697, ordered Markham to co-operate in doing this : but nothing resulted.
Scarcely any white people settled beyond the Brandy- wine except within twelve miles of New Castle until 1701. A few months after Penn ended his second visit to the Province, Cornelius Empson and others proposed to the Commissioners of Property to settle 18000 acres on the Octorara about twenty-four miles from New Castle. The Commissioners hesitated, feeling doubt- ful as to the Penn right so far south to the west of the line ordered in 1685, but the applicants were importu- nate and willing to take the risk. The Commissioners added 3000 acres for the Proprietary, and issued a warrant for the whole, dated 1, 7, 1702, the land to be adjoining on the south the barrens between the Octo- rara and the main branch of the North East River, and to be bounded on the south by an east and west line parallel as near as might be "to the line of the Province." The district received the name of Notting- ham. It was laid out so near the latitude of the mouth of the Octorara as to be cut by the boundary as finally
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established. About this time, Talbot's manor, which, laid out under Maryland authority, covered the district, was offered for sale to Anthony Sharp, one of the Quaker proprietors of New Jersey, and Sharp informed Penn of this opportunity : but Penn was without ready money, and the purchase would not change the para- mount lordship, but, if the land was within Maryland, would make Penn only a tenant of Lord Baltimore for it. In 1705, Empson was so little inclined to hold Nottingham adversely to that Lord that he was con- templating protecting himself by acquiring a title to it from him. Nothing of the kind appears to have been done, and, in 1718, Keith, Lieutenant-Governor of Pennsylvania, gave officials powers within that settle- ment, he having, however, refused to exercise authority over the settlers of New Munster, east of Nottingham, who were holding by Maryland title. To a request from Hart, Governor of Maryland, for the recalling of the commissions over Nottingham, Keith answered that, pending a settlement of the boundary dispute, each side should be allowed jurisdiction over those occupy- ing land under grants from that side.
For a long time after the settling of Nottingham, the trend of immigration through Pennsylvania was much further north, and the agents of the Penns took care to keep their people away from the Octorara line: so Pennsylvanians generally came to believe that such line was the undoubted boundary in the region border- ing on the Susquehanna.
In 1708, the third Lord Baltimore, still hoping to obtain the Lower Counties, attempted to have the order of November, 1685, set aside; but, upon report by the Commissioners for Trade, the Queen dismissed the peti- tion. A second petition by him for the same purpose resulted in an order of June 23, 1709, that the petition be dismissed, and that the order of 1685 be confirmed, and put in execution without delay.
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When Penn was old and broken by his troubles, and not long before the loss of his mind, he was ready to seize upon those stricter or more literal interpretations of the two charters which they were not understood to mean in 1681. Hannah Penn, the wife married at the end of 1695, had no knowledge to gainsay these inter- pretations. It is only fair to John, Thomas, and Richard Penn, who drove the ultimate bargain with the fifth Lord Baltimore, to say in this connection that they were not grown up in time to talk business with their father or even their elder brother, and came to their estate with their information derived from their mother, and in dependence upon her legal advisers.
Although the Maryland practice was to issue war- rants at large, that is not specifying the locality, but allowing the surveyor to survey any land in that prov- ince at the risk of his action being void by reason of the land belonging to another purchaser; a practice likely to result in overstepping the province's bound- aries: yet the preference for land convenient to the settlements kept the Maryland surveyors well south of Octorara Creek for a long time. About the beginning of 1713, surveying upon lands previously surveyed by Pennsylvanians began. Penn's Commissioners of Prop- erty, Carpenter, Hill, Norris, and Logan wrote to Charles Carroll, Lord Baltimore's agent, asserting their own observance of what they understood to have always been deemed by the Marylanders their northern boundary, meaning the Octorara line, and suggesting that all further proceedings be deferred until the bound- ary could be fixed by authority of the Crown following the surrender of the government of the two provinces. There had been a report that Lord Baltimore, as well as Penn, was about to make a surrender. The officers or citizens of Chester County seized the Sheriff of Cecil when executing his office upon land claimed by Penn- sylvania, perhaps summoning or arresting settlers.
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