USA > Pennsylvania > Chronicles of Pennsylvania from the English revolution to the peace of Aix-la-Chapelle, 1688-1748, Vol. I > Part 5
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Carroll sent a polite reply, promising no further vio- lence until the boundary was settled, which he sug- gested could be by ascertaining the "fortieth degree" by instruments, without appealing to the Crown, the degree having been already found to be much further north than any of the surveys.
It may have been only for fixing the boundary west of the eastern line decreed in 1685 that the third Lord Baltimore had been having these later observations taken. In March, 1713-4, another observation was taken, and the latitude of a place on the Upper Branch of the Elk River was calculated to be 39º 29' 17". He died about a year after this.
The fourth Lord Baltimore had, long before, become a Protestant, but, dying in April, 1715, a few weeks after succeeding to the Irish barony and the American proprietorship, did not recover the government of Maryland. He had married a daughter of Sir Edward Henry Lee, first Earl of Lichfield, but had been di- vorced from her after the birth of a number of children, among whom was Charles, who became fifth Lord Baltimore. Lichfield's wife, Charles's grandmother, was an illegitimate child of King Charles II, but such bastard relationship to the Stuarts exerted no influence when Charles Calvert came to his inheritance. He succeeded when about sixteen years old. Having, however, been brought up a Protestant, he was not under the cloud which had hung over his ancestors. In about a month, the government of Maryland was re- stored to him.
He did not grow up a man of great ability or strong character, although recognized as having some at- tainments in the arts and sciences. Clayton Colman Hall, in The Lords Baltimore and the Maryland Palati- nate, quotes various opinions concerning him, includ- ing Lord Hervey's: "thinks he understands every-
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thing, but understands nothing is a little mad."
In 1717, Maryland surveyors went as far north as near the head of the Pequea Creek: in opposition, the Pennsylvania Commissioners of Property, on 11 mo. 2, not only awarded to a partisan some of the ground surveyed, but also offered a reward of 10 l. to any per- son arresting such a surveyor, and delivering him to the Sheriff or proper officer. If at this time the Mary- land surveyors retreated before this peril of being kidnapped, the officials of Cecil County afterwards did not hesitate to make at least a show of force to vindi- cate their jurisdiction, and the threatening possibilities west of the Susquehanna, remote from centres of authority, and where Indians might resent encroach- ments, caused in 1721 or 1722, an agreement between the acting Governors of the two colonies that no sur- veys for any private person should be made in that region.
Keith's steps in opposition to the putting of settle- ments on the western banks of the Susquehanna, will be narrated in the chapter on Confusion at the Death of William Penn. This Lieutenant-Governor of Penn- sylvania accepted the views of the Penn agents and friends in the Council, that, pending a final decision by competent authority of the boundary question, the Octorara line must be recognized.
By agreement dated Feb. 17, 1723-4, between Lord Baltimore of the one part, and William Penn's widow and executrix and two of the mortgagees of Pennsyl- vania &ct. of the other part, it was provided that for eighteen months no persons on either side should be disturbed in their possessions, nor any lands surveyed, taken up, or granted in either province near the bound- aries claimed by either side. The hope was expressed in the agreement that within the period the boundaries would be determined and settled. This hope, however,
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was not realized, and Marylanders and Pennsylvanians entered upon the disputed region: in fact the former, in ignorance of where the 40th parallel was, often went beyond what Baltimore claimed.
In 1731, Thomas Cresap and others with Maryland warrants took possession of Conejohela, settling at a spot in fact north of the 40th parallel, on the western bank of the Susquehanna, driving away some Indians, and burning their cabins. Depredations upon the whites of Pennsylvania allegiance, followed by resist- ance to arrest, brought about a border war which in- volved some loss of life, although during the years in which said struggle was somewhat spasmodically kept up, proceedings to settle the question, or to gain some legal advantage, were being taken by more conspicuous persons.
On July 1, 1731, Lord Baltimore petitioned the King to order the Proprietaries of Pennsylvania to join with said Lord in ascertaining the boundaries. Before this petition was disposed of, frequent interviews took place between the principals on both sides, the bill and an- swer subsequently filed in Chancery contradicting each other as to who made the overtures. We cannot see why Baltimore sought or suggested the compromise made, or, for that matter, why he agreed to it, even sup- posing that he meant the interpretation in minor de- tails for which he afterwards contended. With the western half of the Delaware peninsula already his, it was not a case of "give and take" to accept less than he claimed to the north, or even as little, in exchange for his relinquishing claim to the old City of Philadel- phia and most of its Northern Liberties, the present Delaware County, and nearly, if not all, the present state of Delaware. Even if that relinquished claim was then worthless, so that said land is not to be taken into account, he was giving away, north of the present boundary of Maryland, over 2,000,000 acres which the
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charter of 1632 plainly gave him, and the order of 1685 as clearly adjudged to him; acres, moreover, adjoining improved property. We can only suppose that he was not sober, or had otherwise lost his head, or had been unduly frightened by the matter of the Octorara line. With unaccountable weakness, from the consequences of which the English Court of Chancery did not let him squirm out, he, as party of the 1st part, made an agree- ment dated May 10, 1732, with John, Thomas, and Richard Penn, of the 2nd part, whereby it was cove- nanted that the circle called for by King Charles II's charter should be drawn at twelve miles distance from New Castle, that from the middle point of an east and west line to be run from the point of Cape Henlopen, lying south of Cape Cornelius on the ocean, to the western side of the Peninsula, there should be run a straight line northwardly as a boundary until it touched the western part of the periphery of the circle around New Castle, and from the point of contact a further boundary-line should be run due north to the latitude of fifteen English miles due south of the south- ernmost point of the City of Philadelphia, that a line due west should then be run across the Susquehanna to the western extent of Pennsylvania, or as far as requisite, viz: twenty-five English miles west of the River, so that it could be continued when those parts were better settled, that if the line running due north from the point of contact with the circle should cut off part of the circle, such part should still be in New Castle County, that seven commissioners on each side, three being a quorum, should lay out and mark the lines between October 1, 1732, and December 25, 1733, and that the party whose commissioners did not attend after any adjournment should forfeit £5000 to the party whose commissioners attended. It is rather amusing that so strongly had the Penn side been imbued with faith in the Octorara line, that Ferdinand John Paris,
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the Penn lawyer, in writing to Pennsylvania about the agreement, apologized for its yielding so much !
It would seem, on the other hand, that, when the prominent Marylanders heard of the agreement, they began trying to find some means of breaking it without their Proprietary becoming liable for the £5000 for- feiture, although they might have thought even that preferable to carrying the agreement out. The joint commissioners were appointed and met, but soon ad- journed on a quibble raised by those from Maryland. At a subsequent meeting, the latter insisted that the circle around New Castle was to be twelve miles in diameter, instead of radius. The commissioners ap- pointed by the Penns having no authority to run any circle but that of twelve miles radius, there was a final adjournment on Nov. 24, 1733, obviating any forfeit, but making it impossible to carry out the agreement within the time specified.
On Aug. 8, 1734, Lord Baltimore petitioned the King to grant him letters patent confirming to him in fee the Peninsula as in the charter to Cæcilius, the 2nd Lord, notwithstanding the words "hactenus inculta" &ct. in its recital. Richard Penn, the only Proprietary of Pennsylvania then in England, opposed this, his lawyers insisting that the agreement for adjusting boundaries was in force notwithstanding the failure to run the line within the prescribed time. A petition from several thousand Quakers of the Lower Counties against such a grant was laid before the Commissioners for Trade &ct., and the latter recommended that fur- ther consideration be postponed until the end of Michaelmas Term following, to give the Penns an op- portunity to raise before a court of equity the question of the validity of the agreement. Such postponement was made by the King in Council on May 16, 1735.
The Penns filed the necessary bill in the Chancery of Great Britain on June 21, 1735. Anybody reading the
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bill, and not aware of the facts about the old patents as before mentioned, will get the idea that Baltimore, the defendant, was a terrible robber, a liar, if not a forger, a trickster who, after browbeating the rightful owners into his own terms, conspired to prevent their being carried out, and a sneak who took advantage of the absence of the older brothers to apply to the King. The bill prayed for equitable relief, the lawyers using every pretence of title, every accusation of bad deal- ing, requisite or cumulative, to make out that the agree- ment was reasonable, had been broken by the act of the other party, and should be specifically performed. The bill seems to have been the first formal assertion that the charter to the 2nd Lord gave him only the few miles on Delaware Bay between the cape at the entrance and the completion of the thirty-ninth degree, viz : the thirty-ninth parallel. Lord Baltimore's answer disputed the effect upon his right of orders in Council, possession, expenditure, and pecuniary loss set forth in the complaint, and denied some of the facts, and alleged that he had been imposed upon as to the loca- tion of Cape Henlopen from which the southern bound- ary of the Lower Counties was to be run, and set up the want of title in the complainants to the land to be allotted to him, and the want of consideration in the agreement, and defended his commissioners and their interpretations, and prayed for the cancellation of the agreement.
Before the case could be decided, the disorders on the frontiers broke out afresh, in fact the officials of the bordering counties of the two colonies seem to have promoted violence in hopes of gaining for their respec- tive lords some small advantage. A petition was sent from Maryland to the King in 1736, reciting various offences committed, and praying some relief from the state of affairs. On Aug. 8, 1737, the King made an order in Council commanding the Governors of the two
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Provinces to preserve the peace, and, for that purpose, to make no grants of any part of the land in contest, nor any part of the Lower Counties, nor permit any person to settle or attempt to settle thereon until the King's pleasure was further signified.
On petitions from both sides to the King, received after the royal order of Aug. 8, 1737, the Lords for Trade and Plantations brought about an agreement between the opposing Proprietaries as follows, viz: that settlements within the Lower Counties be per- mitted without prejudice to either right; that all lands remain in the possession and under the jurisdiction of the Proprietary possessing them, until boundaries be settled; that all other land in contest east of the Sus- quehanna, and not in the Lower Counties, and not as far as fifteen miles and a quarter south of the latitude of the most southern point of the City of Philadelphia, and all land west of the Susquehanna not as far as fourteen and three quarter miles south of said latitude, be in the temporary jurisdiction of Pennsylvania, and all land south of those distances be in the temporary jurisdiction of Maryland, that the respective Proprie- taries be permitted to grant vacant lands within their temporary jurisdiction on the usual terms, subject to an accounting if such locality be finally adjudged to the other Proprietary; and that all prisoners by reason of the boundary dispute be discharged on their own recog- nizances to appear for trial when ordered by his Majesty. The King in Council on May 25, 1738, ordered this agreement to be carried into execution, without prejudice to either party.
The temporary boundary thus ordered between the two jurisdictions was agreed to be run by commission- ers from each side, who began work on Dec. 5 by agreeing that a certain post on Society Hill was the southernmost point of Philadelphia. In the follow- ing Spring, after running due west far enough to
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get away from the wide parts of the Brandywine and Christiana Creeks, and then running due south fifteen and a quarter miles along the surface of the earth with an allowance of 25 perches for altitude of the hills, all the commissioners ran the line from this starting-point thus found to the Susquehanna, and fixed the starting- point on the west side. After this, one of the Mary- land commissioners being called home by a death in his family, and his colleague declining to go on without him, the Pennsylvania commissioners ran the line to the top of the most western hill of the Blue Mountain range, the limit of land purchased by the Pennsylvania Proprietaries from the Indians.
The proceedings in chancery, including the taking of much testimony in America, lasted many years. The case came finally to Lord Chancellor Hardwicke for decision by himself alone. This was pronounced on May 15, 1750. Feeling the greatness of the interests involved, he remarked that the matter was "worthy the judicature of a Roman Senate rather than of a single judge," and that it was a consolation to him that there was a judicature equal in dignity to that Senate- the House of Lords-to whom an appeal could be made, if he erred. He did not decide the dispute between the parties as it stood before the making of the agreement. Had that responsibility been upon him, it is possible that he would have come to conclusions more like those of an impartial historian as to the intentions of states- men dead before he was born, and as to facts in which the actors had passed away. As the case was pre- sented, he, however, saw reasonableness in the Penns' interpretation of the charters. He accepted as true the allegation of a charter to the Duke of York in 1683, and therefore thought that the Duke, afterwards King, was a trustee for Penn; but, as the Lower Counties were not to be conveyed by Penn's descendants, their title to convey needed not to be considered. The decision
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was: that for an agreement to compromise, it was enough that there was a doubt as to the true rights, and the settlement of the contention was a sufficient consideration. He found as a fact that, in making the agreement, Lord Baltimore was neither surprised nor imposed upon nor ignorant. There was no mistake of the intention of the parties made in the articles of agreement. So the Lord Chancellor decreed specific performance of the agreement without prejudice to any right of the Crown.
The present author is not aware that there has been any criticism of this decision by any luminary of equit- able jurisprudence as bright as the one who delivered it. What is called equity by lawyers had long before that time become an artificial system very different from the justice of the old ecclesiastical Chancellors. We can imagine one of them asked to enforce such a bargain as the heir of the grant of 1632 had made: they sat partly for the very purpose of restraining any man or men who by the terms of a bargain would get an un- conscionable advantage. There can be little doubt that their opinion would have been against the complainants in this case, and with the words "ils serront damnés in hell."
For an account of the carrying out of the agreement so declared binding, the reader is referred to George Johnston's History of Cecil County, Maryland. Suffice it to say that the boundary line or boundary lines were at last run to almost the west end of Maryland by Charles Mason and Jeremiah Dixon. They were Eng- lish mathematicians and astronomers, selected by the opposing Proprietaries, and performed the work in a little less than three years, ending on Sept. 25, 1766: and the delimination was confirmed by the King in 1769. In the middle of the Nineteenth Century, the names of Mason and Dixon were in the mouth of nearly every American; for their line was marking the cleavage be-
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tween the Free and the Slave States of the Union. In the uncertainty of origin, as there is for so many ex- pressions, it is possible that Dixon has a memorial in the songster's designation of the land of the late Southern Confederacy as "Dixie."
CHAPTER III.
THE ACQUISITION AND DISTRIBUTION OF THE LAND.
The King's charter grants the soil-Europeans with anterior title-Indian rights-Swedes and Dutch purchase-Bishop Compton advises Penn to do so, and such course necessary-Regulations pro- tecting the red men-Quit rents-Feudal position of Penn-Pennsylvania "ground rents"-The vari- ous manors-Most of Penn's first sales in small quantities-The tracts of 10,000 acres cut up- Sales by Penn after his first visit-The Propri- etor's "tenths"-Uniform price of other land- Method of selling and conveying-Conditions and Concessions to the first purchasers-The "Liber- ties" of the great town-Plan of Philadelphia- Holme's survey-"A colony and city on the Susque- hanna projected-Warrants and patenting-Land Commissioners before Penn's second visit-Land legislation and disputes during the second visit- Subsequent proceedings The Land Office-The Divesting Act.
The charter of King Charles II granted to William Penn and his heirs and assigns the soil, lands, isles, rivers, waters, &ct. within the limits or boundaries, with the fish and fishing and mines and quarries, and made him and his heirs and assigns "true and absolute pro- prietaries," the King retaining allegiance and sover- eignty and a fifth of the gold and silver ore clear of expense, and the King reserving a rent consisting of two beaver skins, to be delivered at Windsor Castle on the first of every January. The country and islands were erected "into a province and seigniorie."
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Interfering, however, with the Proprietary's freedom to place tenants throughout the region were the rights of two kinds of human occupants: the Europeans who were already seated on particular lots of ground, and the aborigines, or supposed aborigines, miscalled Indians,-a name to which we must adhere,-who were making use of extended reaches.
It suited the purposes of England to claim that the soil on which the Swedes and Dutch had planted their North American colonies belonged all the while to her Crown by right of Cabot's discoveries, if not of acts concerning the region; but, as to all the inhabitants along the Delaware in 1664 who had not resisted the so-called recovery, justice and the King's promise and the Commissioners' stipulation forbade, while the amount of vacant land rendered unnecessary, the tak- ing away of what a man or his father had acquired with the consent of his government, or improved by the expenditure of his money and labor. The undisposed of residue of the tracts held by rulers or political bodies was not under such immunity. In punishment for re- sisting the alleged rightful owner, the English confis- cated the property of the Dutch Governor, the Schout, and others guilty of hostility, but, as to the other pos- sessors of land, required merely that they surrender all old patents, and be supplied with new ones, because the old patents were upon condition of the holders being subjects of the United Belgic Provinces. Threats were made that a failure to obtain new patents would be punished with forfeiture; but a number of persons failed to comply, some hoping to avoid paying a quit rent. A rent appears to have been reserved in the old grants. This was demanded by the Duke's agents. In early patents, Nicolls reserved the quit rent to the King's use, payable yearly when demanded by the per- sons whom he would put in authority on Delaware River. Afterwards, the rents were often reserved to
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the Duke. According to Logan in 1709 (Penna. Ar- chives, 2nd Series, Vol. XIX, p. 501), the government at New York fixed the rate at a bushel of wheat for every 100 acres.
Not only were claims by any one without an English patent liable to be disregarded some day by an English Proprietary, but if, indeed, the Duke of York had no title to the western bank of the Delaware, his grantees also, whether the Englishmen who came after the con- quest or the foreigners who had been made subjects, were occupants without title. William Penn could not take advantage of this within the circle around New Castle and the region south of it; for there his only right was through the Duke. As to the old settlers in Pennsylvania proper, unfair as the eviction of them might be, and bad as Penn's position to attempt it would be, he having accepted from the Duke a release and confirmation of King Charles's patent, yet there was no security without a binding declaration from Penn. If a fresh contract was to be made with him, it would be upon the terms he would choose; if the old contract was to stand, he was to be the landlord, and take the rents formerly agreed upon. There were not many Englishmen within the limits of Pennsylvania at the date of King Charles's charter.
To the Swedes and very few others of foreign birth, as naturally more puzzled and fearful than the Eng- lish occupants, Penn, on his first arrival, made reassur- ing speeches, and, moreover, he passed laws for title by seven years' quiet possession, and, in the Frame of Government of 2mo. 2, 1683, confirmed to all inhabi- tants of the Province or Territories, whether purchasers or others, full and quiet enjoyment of all lands to which they respectively had any lawful or equitable claim, saving only such rents and services for the same as were "or customarily ought to be reserved to me my heirs or assigns." Very early-Acrelius says that it
ACQUISITION AND DISTRIBUTION OF THE LAND. 63
was on June 14, 1683,-he sent for all the patents of the old inhabitants for inspection, and offered new patents. To make room for his capital city and its suburbs called "Liberties," he cut down the size, or took away the whole, of certain plantations, designat- ing other land in compensation. His persuasiveness, mingled, perhaps, with some fear of him, accomplished a great design so beneficial to the public that it would have justified, if within his authority, acts of eminent domain. Probably also his surveyors corrected lines. All this seems the foundation of the complaint that he reduced the possessions of the older inhabitants. Rev. Israel Acrelius, Provost of the Swedish Churches in America, says, in his work generally quoted as History of New Sweden, that some thousands of acres of swampy land covered with water at high tide, had been used as pasturage, although not included within the old metes and bounds, and such were, upon resur- veys, cut off from the adjoining plantations, and that the new patents charged three or four times the old quit rent, so that the occupants who did not surrender their deeds kept the land they were using, and did not assume increased rent. Some of those who did surren- der their deeds did not take out new patents, which, besides having to be paid for, seemed sufficiently objec- tionable in reserving even at the old rate a rent to be paid to Penn and his heirs and assigns. An idea had spread that the old landholders, being tenants of the King, or, rather, of the Duke, whom these foreigners confused with the King, were not bound to pay rent to any one else, and were free so long as the King did not make the requisite demand. It is noticeable that the King's patent does not in so many words give to Penn the rents and reversions of lands already granted within the region : but the Duke of York's release espe- cially conveys all the rents &ct. which he had.
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