USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 11
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" not such lands, or so far only as extended or adjoined the said fortietlı degree."I
The Penns claimed that the phrase, "beginning of the fortieth degree," had reference to the entire space between the thirty-ninth and the fortieth parallels.2 This would make the southern boundary of Pennsylvania the thirty-ninth par- allel, whereas by the charter the southern limit was the straight line beginning twelve miles from Newcastle. The use of the word " beginning " was most unfortunate, for had the words been "twelve miles distant from Newcastle to the fortieth degree," the meaning would have been clear, as the fortieth parallel was believed to pass through Newcastle. In fact the charter itself admits that the forty-third degree and the beginning of the forty-third degree were the same, for it states that the province should be bounded on the east by the Delaware River from the point twelve miles north of New- castle to the forty-third degree, and on the north by the begin- ning of this degree; we are certainly at liberty then to assume that what was true in the one case was true also in the other, and that the fortieth degree and the beginning of the fortieth degree were used in the charter as synonymous terms. Had this been observed, the contest over what was meant by the beginning of a degree must have soon ceased, to the discom- fiture of the Penns.
1 Breviat.
2 It seems hardly accurate to speak of the beginning of a degree, but if, for exam- ple, we take the space between the equator and the first parallel, its beginning is obviously at the equator and its end at the first parallel, as in the computa. tion of time every second after 1800 is called the 19th century. Hence the space of the fortieth degree would be the section between the thirty-ninth and the fortieth parallels. Indeed Baltimore in this same reply to the bill in chancery claimed that the grant of Maryland included all lands up to the fortieth degree, and that such an expression would be improperly applied to any region other than the full extent of the degree, because, until it came to the extent of the degree it would be only 39º 59', and so many seconds. But the Penns observed that 39º 59' was under the fortieth degree. So also, rejoined Baltimore, was 39º I', and every hair's breadth from 390 complete to 400 complete, as e. g. 90' was under the second degree, for it was beyond the extent of the first degree. Ibid.
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After having thus disposed of the location of the fortieth degree according to the geographical knowledge of the 17th century, we may consider the meaning of the phrase in the Maryland charter, " hactenus inculta," etc., " hitherto unculti- vated" in the parts of America, and partly occupied by savages. In the first place, these words occur only in the preamble, and form no part of the territorial grant proper. But as already stated, the settlement established by the Dutch previous to 1632 had been abandoned when the Maryland charter was issued. Subsequently, however, the Dutch resumed posses- sion and the Swedes had taken up land. Still although Baltimore was given the power to wage defensive war, even had circumstances allowed him so to do, he would scarcely have dared to involve himself in a conflict with the Swedes or Dutch, when Sweden and Holland were at peace with England. Thirdly, as early as 1635 a map drawn according to his direction shows that he believed the northern line of Maryland extended from about twenty-five miles west of the Susquehanna to five miles south of where Newcastle later stood. This indicates that he regarded the fortieth parellel as his northern boundary, and in this belief he sent several messages to the Dutch, warning them to cease exer- cising jurisdiction over territory that was his by the terms of his charter.2
In this connection it may be remarked that the claim set up by the Penns to the effect that the king could not grant any of the territory held by the Dutch, because it had not been discovered by English subjects, is weakened by the fact that the grant by James I. to the London patentees in 1606, embraced the region in question and was based on the discovery made by the Cabots. On the other hand, previous to the time when
1 Map prefixed to the printed agreement of 1732.
2 In 1660 he ordered his attorney, Capt. Neal, to protest in Holland against the encroachments of the Dutch, and to demand their surrender of the region. Haz- ard, pp, 258 et seq., 317, 327.
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the region was conquered by the English, Baltimore had not exercised jurisdiction over it. For this reason his title may be regarded as defective. Still it is true that Penn's title, as de- rived from the Duke of York, was far less valid.
Let us now trace the events leading up to the agreement of 1732. Penn, soon after his arrival in Pennsylvania, arranged a meeting with Baltimore. At this conference he presented a letter from the king, dated April 2, 1681, stating that, as Balti- more had only two degrees, he should measure from Watkin's Point northward, 60 miles to a degree, and ordering both parties to appoint commissioners to determine the boundaries. According to Smith's map, Watkin's Point lay between 38º and 38° 10', and 120 miles north of this would locate the north- ern line of Maryland near the centre of Newcastle. Baltimore replied that the king was mistaken, and that he would not allow his patent to be questioned by any such means. Penn thereupon declared that in 1680, when negotiating for the grant of Pennsylvania, he had petitioned the king at first for five degrees of latitude, but because some of the members of the Privy Council reminded him that Baltimore had only two degrees, he had agreed to a grant of three degrees. He further intimated that in Baltimore's charter the presumption was that Watkin's Point was in latitude 38º, else Virginia, since it should extend to the 38th degree, would suffer encroachment. Baltimore did not favor this proposition of the two degrees. Then Penn pressed him to measure two and one-half degrees from Watkin's Point, and if he would consent to do this on the estimate of sixty miles to the degree, the southern boundary of Penn's province should be at the fortieth parallel, wherever it might fall. Ignorance of the distance from Watkin's Point to Newcastle, as well a cautious policy to avoid anything that might resemble an admission of Penn's claims, caused Baltimore to decline this very advantageous offer. A line 150 miles north of Watkin's Point would have fallen nearly twenty miles north of Philadelphia, and had Penn been better aware of the topo-
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graphy, he would never have made such a blunder. Other conferences followed, but without result. Thereupon Balti- more issued a proclamation offering land in the disputed region at lower prices, and in greater quantities than Penn was dis- posed to concede. He told Penn, however, that this was done merely to renew his claim, not with any intention of encour- aging settlement, still he refused to recall the proclamation when requested so to do. Penn hinted that he might be made accountable to the king in council. Baltimore laconically re- joined that he had nothing to do with the king and council, and would take his right wherever he could get it. Pursuant to this, in 1683, he had a line surveyed from the mouth of Octorara creek, at which spot he built a log fort, north east to the arc of the circle twelve miles from Newcastle. This was six or eight miles north of his predecessor's line of 1635, which it will be remembered was nearly coincident with the fortieth parallel.ª Thereupon Penn, despairing of any peaceable agree- ment, wrote to the Committee of the Council for Plantation Affairs. He rehearsed the outcome of his conferences with Baltimore. He protested against Baltimore's version of them. He asserted that the land included in the patent of Maryland was only that inhabited by savage tribes, and that Baltimore had never taken the Lower Counties from the Dutch, and had never properly ascertained the bounds of Maryland. For these reasons he believed Baltimore had forfeited all claims to the Newcastle country ; but desired that at all events he should be forced to run his boundary line from Watkin's Point to the beginning of the fortieth degree, i. e., to the thirty-ninth paral- lel.2
1 Breviat, pp. 74-5.
2 Penn MSS., Ford vs. Penn. It is curious to note what erroneous ideas were prevalent concerning the topography of the country. Penn wrote to the Marquis of Halifax that Baltimore did not need the territory north of the thirty ninth par- allel, because he already had a country 200 miles in length upon both sides of Chesapeake Bay. Mem. Pa. Hist. Soc., i, pt. ii, pp. 415, 421.
The entire length of Chesapeake Bay is not quite 200 miles, and even granting
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Baltimore's agents, in May, 1683, petitioned the king that the previously outlined grant to the Duke of York, dated April 13 of that year, should not pass the seal until the mat- ter in controversy was settled. In the hearings before the committee of council, Penn and his attorneys constantly em- ployed the duke's name, probably trusting to the influence such a proceeding might have. Occasionally the duke's counsel also participated in the discussions. Penn pleaded among other things not only the great expense he had in- curred by settling the province and Lower Counties, but also the fact that in 1683 and 1685 he had purchased from the In- dians tracts of land extending from Duck Creek and Chester Creek, and from the Delaware westward as far as a man could ride in two days. Baltimore replied by showing a copy of an order in council, dated April 4, 1638, which gave to his pre- decessor the possession of Kent Island. By reference to Smith's map it would be seen, he said, that it lay several miles north of the thirty-ninth parallel. If Kent Island thus was within his bounds by charter, certainly all lands to the east- ward of it, as far as Delaware Bay or the ocean, were so in- cluded.1 At length, upon the recommendation of the com- mittee, an order in council was issued, November 7, 1685, which stated that upon examination of the matters in dispute between Baltimore and Penn, the committee found that the land intended to be granted by the patent to Baltimore was only that which was uncultivated and inhabited by savages. It was believed that the tract in dispute was inhabited and cultivated by Christians in and before 1632, and that it had always been a colony distinct from Maryland. Hence it was ordered that the region bounded on the east by the ocean and the river and bay of Delaware, and on the west by Chesapeake
Baltimore's claim that Watkin's Point lay in 37º 48' north latitude, if his northern limit was to be the thirty ninth parallel, his water front on Chesapeake Bay would not exceed 75 miles.
J Breviat.
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Bay, should be divided into equal parts by a line drawn from the latitude of Cape Henlopen northward to 40º north latitude, the eastern half of which should belong to the king, and the western half to Baltimore.' In view of the fact that James was personally interested in the affair, it is not remarkable that such a decision was rendered.
Baltimore despairing of any present relief connived at var- ious petty expeditions from Maryland into the Lower Counties. Outrages were numerous.2 Settlers under the jurisdiction of Pennsylvania were brought before the Maryland courts, visited with indignities, and driven off their lands, while their houses were burned and their crops and cattle destroyed or stolen. At length Baltimore made another attempt to oust Penn from his possession. January 9, 1708, he petitioned Queen Anne to set aside the order in council of 1685, on the ground that it had been surreptitiously obtained, and was false in its state- ments. He therefore requested that the line of division be- tween Pennsylvania and Maryland should be determined, and that the Lower Counties should be adjudged to lie within his jurisdiction. This being referred to the Board of Trade, Penn told the members of that body that they were not the proper judges, and could not disturb an order in council. Upon complaint to the president of the council he was advised to send in a counter petition. In it he cited the directions issued in 1685, and pleaded the expense he had undergone, the im- provements he had effected, and his quiet possession for many years. He therefore desired that the petition from Baltimore be dismissed.3 When his request was granted, Baltimore, May 19, 1709, sent in another petition of the same tenor as his previous one, asserting the falsity of the counter petition,
1 In their proceedings in chancery the Penns endeavored to strengthen their claim by showing that as the order was directed to Penn and Baltimore, it would be rather unusual for the king to direct Penn to run a line for the king himself. Ibid.
3 Mem. Pa. Hist. Soc., i, pt. i, p. 209. 2 Col. Rec., i, pp. 104, 115, 188, 515.
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and declaring that in the proceedings of 1685 he had never been heard in his own defense. This statement was disproved at a hearing in council, his petition was again dismissed, June 23, 1709, and the order of 1685 was confirmed and commanded to be put in execution.I
Then the petty disturbances in the Lower Counties were re- newed, and the governors of Pennsylvania retaliated by proc- lamations to apprehend and punish the invaders. The gover- nors of Maryland continued to offer lands at reduced rates to encourage settlements in that region. Notices were posted up bidding persons who held their lands by grants from Penn, and who wished to have their titles respected, to make application to Baltimore's agents. But the tide was steadily setting against the Maryland proprietor. Ever since the appoint- ment in 1693 of Benjamin Fletcher as royal governor of Penn- sylvania and of the Lower Counties as territories de- pendent thereon, the Lower Counties had been looked upon as a part of Pennsylvania. The governors of the province with the approbation of the crown had for many years exer- cised jurisdiction over them. The assembly of Maryland by acts passed in 1704, 1707, 1715 and 1724 acknowledged that they were annexed to Pennsylvania. A large number of the inhabitants, however, refused to pay rent to either Baltimore or Penn. Hence, February 17, 1724, six years after the death of the Pennsylvania proprietor, Charles, Lord Baltimore, entered into an agreement with Mrs. Penn, that no person should be disturbed in his possession, and that for the period of eighteen months no lands near the boundary line of either province should be surveyed or taken up. A proclamation to this effect was issued by Gov. Keith of Pennsylvania May 15, 1724, but the death of Mrs. Penn, the infancy of the young proprietors, and the neglect of Baltimore renewed the con- fusion.2 The governors of the two provinces held many con- ferences, which usually resulted in a series of empty promises easily broken.3
1 Breviat. 2 Ibid. 3 Pa. Arch., Ist series, i, pp. 320-488.
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Then Baltimore petitioned the king, July 31, 1731, to order the Penns to join with him in settling the boundaries; but in case they refused, or in case the boundaries were not definitely settled within twelve months, that the matter should be deter- mined by royal decision. The Penns at that time were not well acquainted with the details of the dispute, and could not readily secure the necessary evidence to prove their title. In a conference between the attorneys of the respective parties it was stated that, if the Penns did not agree to the extension of the Maryland boundary northward to within fifteen miles of Philadelphia, Baltimore would again set up his claim to the Lower Counties. Though the agents for the Penns strenu- ously insisted on 18 or 20 miles south of Philadelphia as the . northern boundary of Maryland, this demand of Baltimore was at length complied with. Before the final agreement, however, Baltimore insisted that all members of the Penn fam- ily holding lands in Pennsylvania should attach their signa- tures to the articles, and made several other stipulations to which the Penns acceded, and which were later embodied in the agreement itself. This was dated May 10, 1732, and ran as follows: It was to be based geographically on a certain map which was prefixed to it. The circle mentioned in the charter of Pennsylvania and the deeds of enfeoffment, should be drawn at 12 English statute miles from Newcastle. A line was to be run from Cape Henlopen directly west to the exact centre of the peninsula, and from its western end a perpendic- ular line was to be drawn northward till it touched the ex- treme western point of the circumference, thus making a tan- gent. From this point again a line should be traced due north till it reached a point fifteen statute miles south of the most southerly part of Philadelphia. Starting at the northern end of this line, another should be run directly west across the Susquehanna to the limit of longitude ; but as the western lands were then unsettled it was stipulated that for the pres- ent the line should not extend further than 25 statute miles
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west of the Susquehanna. Furthermore, it was agreed that if the northern extension of the tangent line intersected the cir- cle, so much of the circle as was cut off should belong to New- castle, provided that in case the head of any river flowing into the Chesapeake, the Delaware, or the ocean, should be on one side of the boundaries indicated, and the remainder on the other, then the inhabitants of the province or counties within whose limits the head of the river should fall, were to be for- bidden the use of the lower part of the river for commercial purposes, without the consent of the proprietor of such lower part. It was also agreed that within two months the respect- ive proprietors should each appoint seven commissioners, whose duties should be to act with all fairness and dispatch in the prosecution of their work, which was to begin not later than October, 1732. The boundary lines should be designated by stones, posts, trees, pillars, buildings and the like, marked on one side with the arms of Baltimore and on the other with the arms of Penn. The lines having been determined before December 25, 1733, an exact plan of the survey was to be signed and sealed by the commissioners and principals and en- tered in all the public offices in the two provinces and counties. Then the respective proprietors agreed to recom- mend to the assemblies the passage of acts for the visitation of the boundaries on certain fixed days triennially, in order that the limits might remain accurately determined.' If a quorum of the commissioners did not attend to the running of the lines, the agreement was to be void, and the defaulting party liable to a forfeiture of £5,000. Then Baltimore and
1 William Penn by a warrant, dated Oct. 28, 1701, had directed certain survey- ors and justices of the peace to survey from Newcastle twelve miles up the Dela- ware, and from this distance to divide Newcastle and Chester counties by the cir- cular line. This was marked two-thirds of the distance by notches on trees; but Newcastle county levied taxes on inhabitants of Chester county, on the ground that the line had been illegally run. Therefore the provincial assembly in 1715 passed an act to confirm this boundary, but it was repealed by the king in council, July 21, 1719. Bradford, Laws of Pa.
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the Penns renounced all claims to territory other than that which lay within their respective limits as thus traced. Excep- tion, however, was made of grants which had been made to in- dividual settlers within what had been disputed territory. In order to secure these settlers it was further stipulated that each party should copy grants, leases, or warrants made by author- ity of the other prior to May 15, 1724, and upon receipt of the accustomed fees should issue new grants of the same tenor, provided the grantees became tenants of the present proprietor, and liable to all rents, arrears and duties according to the original deeds. Finally, in cases during the dispute, where a title for lands in the disputed region had been taken from both parties, or where land had been settled without permission from either, such settlers, if they consented to hold of the new proprietor should be treated with moderation.' It is thus to be noted that Baltimore gave up his right to the Lower Counties, except so far as uncertainty existed about the loca- tion of Cape Henlopen.
The commissioners were appointed, and, November 24, 1733, reported that at several meetings the representatives from Pennsylvania had insisted upon surveying the circumference of a circle at twelve statute miles from Newcastle; but that the Maryland commissioners construed the wording of the deeds of enfeoffment, viz., " all that town of Newcastle, and the tract of land lying within the compass or circle of twelve miles about the same," as meaning that a circumference of only twelve miles in length should be drawn, thus making the radius less than two miles instead of twelve. Thereupon the commissioners from Pennsylvania refused to proceed further, and the matter was referred to the principals.
On August 8, 1734, Baltimore presented a petition to the king, praying that by letters patent he might be put in pos- session of the Lower Counties. To support this request, he cited the phraseology of his charter, the order in council of
1 Breviat.
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1638, and the alleged fact that prior to his grant the territory had not been occupied by Christians or by subjects of Great Britain. But he was careful to make no allusion to the agree- ment of 1732, or to the fact of possession by the Penns up to that time. The petition as usual was referred to the Board of Trade, which reported to the committee of the council that the Lower Counties appeared to be included in the grant to the present Lord Baltimore's ancestor, but for many years had been in possession of the Penns; that since 1702, when Andrew Hamilton was appointed governor, the declaration of the king's right to them had been made when each successive governor was approved, and that the Penns had been summoned, but had refused to answer concerning the matter. It was, there- fore, left to the king to decide whether the order of 1685, at which time William Penn had acted as agent for the Duke of York, or the order of 1638 should have the greater considera- tion; but it was believed the latter would be more likely to show the real intention of the crown. The committee of the council then heard the attorneys for both sides, but Baltimore was the more strongly represented. An order in council was accordingly issued, May 16, 1735, which stated that the report of the Board of Trade and two petitions presented by the Penns had been considered, and recommended that the decision of the question should be postponed ; but that in the meantime the Penns should proceed in a court of equity to obtain relief on the articles of agreement.I Later either party might apply to the committee of the council, as the nature of the case should require.
A short time after this the Penns presented in chancery a bill which contained all the points of dispute most exhaustively
1 The Privy Council refused to take cognizance of the case, because its jurisdiction was held to be confined only to " original, unsettled, conflicting, chartered grants of colonial territory," and therefore the case should be tried before an essentially judicial tribunal. Penn MSS., Autograph Petitions ; Ibid., Corresp, of the Penn Family ; T. P. to John Penn, Nov. 24, 1736, and to Peter Colinson, Aug. 1, 1737.
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stated.1 In it they charged Baltimore with making large grants of land without indicating their location, and that by hav- ing them surveyed in the disputed territory, the agreement was frustrated. They prayed for an answer to a long list of ques- tions, and asked for liberty to examine witnesses. They de- sired quiet possession of the Lower Counties, that the agree- ment should be declared in full force and be properly executed, that the pretended doubts as to fixing a centre for the circle around Newcastle, the dimensions of the circle, and the dis- tance from the town, should be removed; and that Baltimore should give further assurances that he would perform the agreement, and settle through a master in chancery all differ- ences which thereafter might arise. Finally, they requested that Baltimore be compelled to pay costs, and that due relief in every sense should be rendered them.
At first Baltimore refused to answer. Thereupon, July 29, 1735, the Penns obtained from the chancellor an order for se- questration, unless good cause to the contrary could be shown. Baltimore in turn obtained an order to refer the bill on the ground of scandal and impertinence ; but a master in chancery deciding adversely, he was forced to answer. His lengthy reply contained a general denial of the allegations made by the plaintiffs, and was replete with all kinds of legal devices to make the case as intricate as possible.2 It would be tedious and useless to consider the truth or falsity of the individual state- ments of both parties.3 Baltimore claimed, however, that the
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