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During the progress of the treaty, and even prior to it, a dispute arose between the assembly and the proprietors. We
1 Col. Rec., iv, p. 560 et seq. ; v, pp. 398-440.
2 Votes, iv, pp. 137, 509, 517, 528; Penn MSS., Supp. Proc., T. P. to Peters, Oct. 9, 1749.
3 Ibid., pp. 151, 279, 280, 286, 509, 517, 528; Penn MSS., T. P. to Peters, June II and July 3, 1755.
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have seen that it had been the custom for the governor and council, or members of the latter, to manage all negotiations with the Indians. But gradually, after the assembly had begun to make appropriations for presents, the governor and council while recognized as the proper agents in such affairs, were de- prived of some of their exclusive power. The house either gave directions concerning the disposal of the money, or was represented by committees at the conference. It even went so far as to attempt completely to control Indian affairs by such committees, thereby assuming to itself the rightful authority of the executive. Not till about the middle of the eighteenth century, however, did the expense of Indian negotiations as- sume serious proportions. Then the assembly, having spent upwards of £8,000 for this purpose, began to feel that the pro- prietors ought to bear a part of the charges arising from such negotiations and treaties. The Penns replied that, since they regularly paid the interpreter, and had given the Indians the proper amount of money for their lands, they did not consider themselves under any obligations to contribute additional sums. As it was a case of public expenditure, they believed themselves to be no more liable than governors of other provinces. But the house contended that the cultivation of friendship with the Indians would redound to the special advantage of the proprietors, and that for the attainment of this object larger contributions were necessary. Hence, even though the Penns might be under no legal obligations, they were equitably bound to lessen the burden of the people. In fact, as owners of the soil and as governors, they should bear all the expenses involved in the conclusion of treaties which were of a territorial character.I But the proprietors remained obdurate.
In this connection, it may be said, that we have found no good evidence to prove that the proprietors had wronged the Indians. But the contrary was intimated by the
1 Votes, iv, pp. 264, 361-2; Pa. Arch., Ist series, ii, p. 108.
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" Friendly Association," a band of Quakers who had united for the purpose of quieting the troubles with the savages. Its interference, however, was condemned by the home govern- ment, as well as by the proprietors. Its intentions may have been praiseworthy, but the methods employed by some of its members suggested the thought that personal and political schemesI would be promoted. Indeed, the proprietors re- fused to approve of its proposal that commissioners appointed by the Quakers should treat with the Indians. Their reason for this was that the Quakers refused to admit the rightfulness of the claim of the Six Nations to the territory then under consideration, a claim which of course rested solely on con- quest. By their interference at this juncture it was believed that contention would be aroused anew between the Six Nations and the Delawares.2
Whatever was the opinion of the Quakers concerning the complaints of the Delawares, the Six Nations at the treaty in 1754 thought the defection of the tribes in Pennsylvania was due chiefly to the presence of the squatters, and to the fear- ful slaughter of Braddock's army, as thereby the reputation of the French was increased, and the want of union among the English made apparent.3 Hence, in 1760, the assembly passed a law providing heavy penalties against hunting beyond the limits of territory purchased by the proprietors. During Pontiac's war, also, orders were sent from England to Gen.
1 " Letter from a Gentleman to his Friend in Philadelphia, 1764." " If the mo- tives that induced the Friends to subscribe toward the settlement of the differences with the Indians, were what you believe them to be, such deserve our praise and thanks instead of censure, and I am sure will always meet with my regard. I make no doubt that many of the hot-headed party men be among them. Yet there are many others whose intentions are for the general good, and who desire to have these Indian differences settled in a just and reasonable manner." P. L. B., v, T. P. to W. Logan, Dec. 9, 1757; to Peters, May 26, 1758.
2 Col. Rec., vii, p. 658; Votes, iv, p. 800; Penn MSS., T. P. to Peters, May 26, 1758; to Gov. Denny, April 13, 1759.
8 Thid., vi, p. III et seq ; vii, p. 245.
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Amherst and Sir William Johnson to remove all trespassers on the Indian lands. To this end, in 1767 Gen. Gage notified Gov. Penn that effectual means must be immediately taken to drive out the lawless settlers.' Little attention, however, was paid to the governor's proclamation, and even the removal of squatters by the garrison of Fort Pitt gave only temporary relief, because, unless deterred by severe punishment, they kept returning in steadily increasing numbers. It was also seen that no progress toward a peaceful solution of the ques- tion could be made with defective laws, or without the exercise of the coercive powers of government. The settlers, as well as the Indians, must be kept in order. Hence Gen. Gage promised the civil officers the aid of the troops in suppressing the disturbances on the frontier. Also, in the early part of 1768, the assembly enacted a law making death without ben- efit of clergy the penalty for trespassing on Indian lands, while even surveying or marking trees on such lands should be visited with heavy punishments. This rigorous treatment was softened by an act of the following year, making such acts of trespass a crime punishable by a fine of £500, and a year's imprisonment.2 Finally, the assembly sent orders to its agents in England to obtain, if possible, a command from the crown for the establishment of a boundary line between the Indians and the province, pledging at the same time a gift of £3000 to the savages to remove their discontent.3 Instructions for this purpose were sent, and in 1768, at Fort Stanwix, a conference
1 It is important to note how the progress of events had served to dispel the vision- ary ideas of early times concerning the nobility of the Indian nature, and to reveal it in its actual savagery. William Penn's humanitarianism stands in bold contrast to the stern decrees of a later time, when the province was forced to endure the sufferings of an Indian war. Gov. John Penn issued a proclamation, July 7, 1764, offering bounties for the lives or scalps of all Indian enemies, whether male or female, adults or children.
2 Miller, Laws of Pa. ; Votes, vi, p. 33; Penn MSS., Ofic. Corresp., x, John Penn to T. P., Jan. 21, 1768.
3 Votes, vi, p. 51.
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was held which was attended by commissioners from New York, New Jersey, Pennsylvania, and other colonies.1 In con- nection with this meeting, Sir William Johnson made large purchases from the Indians preparatory to the settlement of boundaries.2
The fact that the home government had assumed such complete control over Indian affairs caused the proprietors to fear lest their border territory might be seized by the crown under pretext of pacifying the savages. But this was not done, and the treaty at Fort Stanwix brought to a close the Indian troubles of the proprietary period.
1 Penn. MSS., Offic. Corresp., xi, R. Peters to T. P., May 15, 1774.
2 The proprietors thought it was far better to have fixed the boundaries with the Indians, and secured a deed from them, than to have been compelled to negotiate with the English treasury for part of the lands comprised in a general deed made to the crown. P. L. B., ix, T. P. to Tilghman, Jan. 31, 1769.
CHAPTER VII
BOUNDARY DISPUTES
I
Maryland
THE history of this famous contest concerning the location of the boundary line between Maryland and Pennsylvania and the possession of the Lower Counties, has never been ex- haustively written. Short treatises as a rule have failed to indicate clearly the nature of the dispute and the exact points in controversy. The treatment of this question properly in- volves a discussion of the territorial grants by charter from the king, and of the deeds of enfeoffment granted by the Duke of York. Connected with this discussion also are the disputes about the location of the fortieth degree of north latitude, and the significance of the words " hactenus inculta." Then we shall consider the agreement of 1732, and the uncertainty about the situation of Cape Henlopen. Finally the decision of the chancellor, and the subsequent proceedings of the commission- ers until the line was definitely settled in 1767 will be ex- amined.
We have seen that by the charter of 1681 Penn was entitled to all the section of country bounded on the east by the Delaware, from a point twelve miles north of the town of New- castle, to the forty-third degree of north latitude. On the south, it was to be bounded by the circumference of a circle whose centre was Newcastle and whose radius was twelve miles in length, and which was drawn from north to west till it reached the beginning of the fortieth degree. From this
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point of contact, the line was to extend directly westward to the limit of longitude. The charter of Maryland, bestowed upon Lord Baltimore in 1632, specified that his territorial grant should include a part of the peninsula between the ocean and Chesapeake Bay, and be divided from the rest of that peninsula on the south by a line drawn from Watkin's Point on the Chesapeake to the ocean. From this southern limit the eastern line should follow the coast northward to that part of Delaware Bay which lay under the fortieth degree north latitude, where the grant in 1620 to the New England Council ended. The northern limit of the grant was the fortieth par- allel which it followed as far west as the " true meridian of the first fountain of the river Potomac." From this point the boundary line turned in a south-easterly direction to the eastern bank of the Potomac ; following thence the course of the river, it was to terminate at a place called Cinquack, now Smith's Point, near the mouth of the Potomac. The southern bound- ary was completed by the shortest line from Cinquack to Watkin's Point.
As early as 1623 Fort Nassau was founded by the Dutch on the east side of the Delaware River, but three years later it was abandoned. In 1629 and 1630 two tracts of land on Delaware Bay were purchased by members of the Dutch West India Company, and in 1631 a settlement called Swaanendael was made.' This was destroyed by the Indians early in the following year.2 Hence at the time of the grant to Baltimore only roving bands of savages, or possibly a few Dutch traders, inhabited the region.3 In 1638, however, the Swedes took possession, and remained in authority till 1655, when they were subdued by Stuyvesant and the Dutch. Again in 1664 this territory, as well as New York, fell into the hands of the English.4 Thereupon Charles II, by letters
1 Hazard, Annals of Pa., pp. 23, 24. 2 Ibid., pp. 25-28.
3 Brodhead, History of New York, i, pp. 200-6, 213, 219.
+ Hazard, pp. 364-5.
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patent dated March 12, 1664, and June 29, 1674, granted to his brother James, Duke of York, a large part of this conquest ; but it was specified that the western territorial limit of the grant should be the Delaware River. Inasmuch as the "country of Newcastle," as it was generally called, had been governed by the Dutch authorities at New Amsterdam, the duke's officers assumed control on the ground that it was an "appendix to New York," though legally he had no title to it.I Penn desired to control the navigation of the Delaware. Hence with some difficulty he obtained from the duke, August 24, 1682, deeds of enfeoffment for the country of New- castle, or the three Lower Counties on the Delaware. By these he was granted the territory between the northern point of the circumference of the circle mentioned in the charter of Penn- sylvania, and the latitude of what was called Cape Henlopen.2 On October 28, 1682, Penn demanded of certain persons ap- pointed by the duke that the terms of the deeds should be fulfilled. He was thereupon given quiet possession and seisin by delivery of the fort at Newcastle, a porringer of water from the Delaware, a piece of turf and a twig in token of his right to the soil. Upon his assurances that their rights would be respected, the people promised obedience. Moreover, although the duke's title was defective, and although it was a principle of English law that rights of government could emanate only from the crown, nevertheless, as rights of government had been exercised, the governor and council of New York, in November 1682, issued a proclamation that due submission should be made to Penn. It had been stipulated in the deeds that the duke should confirm this enfeoffment. He, therefore, applied to Charles for an express grant of the Lower Counties. By letters patent dated March 22, 1683, he was given all the
1 The duke's attorney admitted that the title of his noble client rested not on his charter, but on the king's acquiescence. Ibid., p. 476; Documents Relating to Colonial History of New York, iii, pp. 239, 247.
2 Hazard, pp. 521, 588.
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territory between New Jersey and Maryland, as far south as Cape Henlopen, and full powers of government, with a reser- vation of appeals to the crown. Not satisfied with this, and probably in pursuance of his agreement with Penn, for whom, as is well known, he had a strong personal regard, he gave up this charter, and petitioned the king for a further and more beneficial grant. This it seems was in course of prep- aration when it was stopped by a counter petition from the agents of Baltimore. The docket of the intended grant ran as follows: "A bill signed by R. Sawyer (the attorney- general) and now remaining in the signet office, containing the king's grant to the Duke of York in fee, which recites that the Duke of York had surrendered to the king the letters patent dated March 22d, last, which surrender his Majesty had accepted and thereby did accept. Therefore, the king, of his especial grace, certain knowledge and mere motion grants to the Duke of York in fee, April 13, 1683, all that town of Newcastle, otherwise called Delaware, situate, lying, and being between Maryland and New Jersey, and all that river called Delaware, and soil thereof, and all islands in the said river, and all that tract of land upon the west side of the river and bay of Delaware, which lieth from Schuylkill Creek upon the said river, unto Bombey's Hook, and backwards into the woods so far as the Minquas country, and from Bom- bey's Hook on the same river unto Cape Henlopen, now called Cape James, being the south point of Asea Warmett inlet, and backwards into the woods three Indian-day's jour- neys, being formerly the claim or possession of the Dutch, or purchased by them, or which was by them first surrendered to Colonel Nicholls, and which hath since been surrendered to Sir Edmund Andros, and hath for several years been in pos- session of the Duke of York." The quit rent was to be one beaver skin, delivered annually; and the charter was to be good, notwithstanding "any former letters patent for the premises, or any part thereof, granted by progenitors unto any
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person or persons whatsoever." Lastly, it was endorsed " Expeditur apud West Monaster decimo sexto die Aprilis Anno regis Caroli Secundi Tricesimo Quinto per Morice."I
Such a grant assuredly would have conflicted with that of Pennsylvania, especially with regard to the Delaware river, while it would deliberately set aside Baltimore's claims. It seems likely therefore that it was the duke's intention to leave no space intervening between Maryland and Pennsylvania. Though this grant was registered in the books of the Hanaper Office, if it did not as a charter pass the great seal, it is doubt- ful whether the duke's surrender of his patent of March 22 was binding. Such a construction of the case would leave him in possession of the Lower Counties, thus apparently violating his contract with Penn. Moreover, if the duke's title should be determined merely by the words of the charters he received from the king in 1664 and 1674, the deeds he gave Penn were not legally valid, because he was giving up land which had never belonged to him, though the grant subse- quently made to him in March 1683 was good. Admitting, however, that his title by charter based on conquest was valid, and that his deeds to Penn were therefore valid, then his letters patent of March 1683 conferred merely the powers of gov- ernment, for it is not to be supposed that any subsequent grant from the king could invalidate a private contract. But this would be such an irregular proceeding, that it is safer to assume that it.was the duke's purpose to secure the grant from Charles for Penn's benefit, and that Penn had agreed to the plan. This view of the case is borne out by the fact, that the patent of March 1683 was transfered by him to Penn as a security until he could make a further confirmation of his deeds.2
In a letter to some friends, written June 10, 1691, Penn as-
1 Penn MSS., Charters and Frames of Government ; Breviat of Evidence, Penn and Baltimore, p. 58.
2 Breviat, p. 56.
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serted that the duke, after becoming James II., had given him a charter for the Lower Counties.' His assertion was true only in part, because the grant never passed the great seal. It seems that on December 10, 1688, the day before James fled from Whitehall, the solicitor general, acting under his orders, prepared this charter.2 In the preamble it was stated that the king had intended to grant to Penn all the territory east of a line of division made by an order in council dated November 7, 1685, and that Penn had been advised that the indentures of August 24, 1682, gave him no right to exercise any power of government. It was also declared that Penn had promoted liberty of conscience, and that, according to the terms of the indentures, he might be required to pay the king half of the profits from the land; but that he could not collect rents on account of the disturbances created by Baltimore and his agents. Hence, in order that Penn should not be called in question, and should not fall within the reach of any law, or be liable to prosecution for any crimes or offenses which he might have committed in assuming jurisdiction over the Lower Counties, he was released from the payment of rents and profits, and pardoned any felony or treason involved in such assumption of authority. Furthermore, for a consideration of ten shillings, he was granted all the eastern half of the territory between the " the eastern sea, river and bay of Delaware, and Chesapeake Bay," as divided by the order in council just men- tioned. Of this Penn was made true and absolute proprietor. The territory should be held as of the castle of " New Windsor in our county of Berks in England," at a quit rent of one beaver skin. It was to be erected into a province and seigniory, and to be called Lower Pennsylvania. Penn could pardon all crimes except treason. To all people, except such as should be specially forbidden, was given the liberty of transporting
1 Gordon, History of Pa., p. 601.
2 Penn MSS., Charters and Frames of Government.
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thither their persons and property. The people should hold their land of Penn as of the seignory of Newcastle, by such rents, customs and services as should seem to him fit. If the inhabi- tants of Lower Pennsylvania so desired, it might be united with Pennsylvania, in order that they might have one assembly ; and if the laws of England and Pennsylvania would allow it, the one assembly might legislate for both. Penn, his heirs and assigns, were given the same powers of legislation in this territory as existed in Pennsylvania. Except that nothing was said about the king's right to one-fifth of royal mines, this charter was very similar to that of Pennsylvania. Its failure to pass the great seal once more shows the title of the duke, and through him of the crown by the charter of March 1683, to be valid unless some other claims existed.
Baltimore's charter was the great obstacle in the way of the perfection of the duke's title. But in order to understand this more fully we must endeavor to establish the location of the fortieth degree, and the meaning of the phrase " which lieth under," as found in the Maryland charter, and the phrase " unto the beginning of the fortieth degree," as found in the Pennsylvania charter, taking into consideration the fact that Baltimore's charter antedated Penn's by forty-nine years. At the outset it must be borne in mind that accurate geographical knowledge or calculation was at that time very rare. In 1680, when Penn was negotiating for his grant, the agents of Baltimore petitioned that the grant should lie north of the Susquehanna fort, as that was believed to be on the northern boundary line of Mary- land. To guard against any encroachment they asked also that they might see the grant before it passed the great seal. To the proposition concerning the Susquehanna fort Penn agreed. There appear, however, to have been two forts of that name in this region ; but the situation of the one probably alluded to in 1680 was at the junction of the Susque- hanna River and Octorara Creek, almost directly west of New-
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castle. It was thus on the fortieth parallel. Also, the attor- ney general, to whom the matter of the boundary was referred, stated his belief that the Lower Counties were separate and distinct from Baltimore's grant, but confessed that the lines were very uncertain. He bounded Maryland on the south by Virginia, on the east by the ocean and Delaware Bay, and on the north by the part of the Delaware river which lay under the fortieth degree, and thence by a straight line westward. But he was somewhat undecided as to whether the Dutch and Swedes owed obedience to the duke or to Baltimore.ª This would seem to show that by charter Baltimore was entitled to the Lower Counties.
Again, from the identity of names and localities there is lit- tle doubt that Capt. John Smith's map of 1624 was used to determine the territorial limits mentioned in the charter of Maryland. By this it appears that the fortieth parallel crossed the Delaware at a point where it would perhaps be difficult to distinguish between bay and river. West of that it crossed the place where Newcastle later stood, and passed near the head of Chesapeake Bay and the sources of the Potomac. Ac- cording to this calculation then, the thirty-ninth parallel would intersect a point about two miles south of the present Cape Henlopen, and ten miles south of the city of Washing- ton. If the words "up to that part of Delaware Bay that lieth under the fortieth degree," refer to the fortieth parallel, assuming that the point where it crossed the Delaware was within Delaware Bay, it would again appear that the grant to Baltimore embraced the territory of the Lower Counties.
- If, however, the words refer to the space of sixty geograph- ical miles which lie between the thirty-ninth and the fortieth parallels or near the foot of Delaware Bay which lies south of that space, an absurdity is apparent, because no part of Dela- ware Bay was south of the space 40°. In this connection it
1 Hazard, pp. 475-480, 482, 484 ; Breviat, p. 51; Map prefixed to the printed agreement of 1732.
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was contended by the Penns in their suit in chancery, that the expression, "as far northward as that part," found in the Maryland charter, meant up to the fortieth degree, but exclud- ing all lands lying within the space of the fortieth degree. As no part of Delaware Bay lay within or under the space of the fortieth degree, very little of the territory of the Lower Counties lay south of the thirty-ninth degree, i. e., south of the thirty-ninth parallel. They urged also that the fortieth degree complete extended beyond where the grant to the New England Council ended. But the fallacious character of this argument becomes evident when we remember that, if the northern boundary of Maryland were thus located at the thirty-ninth parallel, it would fall sixty miles south of the head-waters of the Potomac, and would give Balti- more only the narrow territory between the thirty-eighth and the thirty-ninth parallels. Moreover, the bounds of New England did not extend even so far south as the fortieth parallel. If the words, " lieth under," are taken literally, as if a huge figure 40 lay over sixty geographical miles, then " up to that point of the Delaware Bay that lieth under the fortieth degree," would have the same meaning as in the first case, be- cause all of Delaware Bay was under the fortieth degree. This may seem to be an absurd argument, but it was in fact the very one used on several occasions by Baltimore. For example, in the answer to the Penns' bill in chancery, he stated that his boundaries extended through the fortieth de- gree complete, and to the end of it, i. e., from the thirty-ninth parallel to the fortieth parallel, and that no part of the lands under the said fortieth degree was excluded from the grant. He declared that the distance from the thirty-ninth degree complete, i. e., at the thirty-ninth parallel to the fortieth degree complete, i. e., at the fortieth parallel, was sixty geographical miles, and that " there was such a quantity or space of land " lying under the fortieth degree. Finally, he asserted that all lands under the fortieth degree had been granted to him, and
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