USA > Pennsylvania > History of proprietary government in Pennsylvania > Part 12
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1 Breviat.
2 Among the ingenious arguments used by the attorneys for Baltimore was the following : The Maryland proprietor was by the crown deprived of governmen- tal rights from 1692 to 1715 ; and as the Lower Counties had not been sufficiently wealthy to maintain a governor, the governors of Pennsylvania had been permitted temporarily to exercise authority, until Baltimore could prefer a petition to the crown to establish him in possession. Ibid.
'They may be seen at length in the Breviat, in the Penn MSS., Penn vs. Bal- timore, or in the MS. volume of 833 pages, called the " Decree of the Chancellor." in the library of the Pennsylvania Historical Society.
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action of his commissioners had been fair, and that the agree- ment of 1732 was invalid by reason of the lapse of time. Hence he desired that it should be cancelled, and costs decreed against the Penns. As a further sign of his evasive policy, ' alleging that fraud had been committed in obtaining the articles of agreement, he again petitioned the king, April 21, 1737, to be put in possession of the Lower Counties, or at any rate that no governor recommended by the Penns should be appointed over them until the dispute concerning the validity of the articles was settled. He desired that in the meantime the king would directly appoint the governor, and send orders to reassure the settlers on the lands near the boundaries.1 Sev- eral petitions had also been sent from Maryland and Pennsyl- vania complaining of outrages committed on the borders, and asking for the king's interposition, in order that peace might continue until the boundaries were established. The Board of Trade reported that while the suit was pending, since the Penns for many years had regularly appointed governors under proper reservations, it did not advise any change in the method of appointment. Then, August 18, 1737, another order in council was issued, commanding that the governors of Maryland and Pennsylvania, under pain of the king's dis- pleasure, should take measures to suppress further tumults on the borders. They were also bidden to make no grants of the land in dispute, nor of any in the Lower Counties, and not to permit any person to settle there till the king's pleasure was known.
But the complaints continued. Hence the committee of the council summoned all the proprietors to answer them. The exigencies became so pressing that the Penns and Baltimore made another agreement, May 25, 1738.2 This provided that so much of the previous order in council as related to the preservation of the peace on the borders should be observed,
1 Breviat, p. 73. 2 Hazard, Register of Pa., ii, pp. 200, 209, 225.
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but should not affect the Lower Counties proper, for no riots had been reported there; that all other lands in controversy should remain in the hands of the present possessors, even if beyond the temporary limits; and the jurisdiction of the particu- lar proprietor should continue over such persons till the boundaries were adjusted. Furthermore, it was agreed that the tenants of neither party should attorn to the other, nor should either of the parties or their officers receive the attorn- ments of the other's tenants; and that all vacant lands in dis- pute, not lying within the Lower Counties, nor actually pos- sessed by either party, if they were on the east side of the Susquehanna and north of a line 1514 miles south of the most southern part of Philadelphia, or if on the west side and 143/4 miles south of Philadelphia, should be regarded as temporarily under the jurisdiction of Pennsylvania; but all vacant lands south of that line should be similarly under the jurisdiction of Maryland. The proprietors were also allowed to grant on the common terms any of this vacant land within their respective limits, for which each of them should account to the other, if he was adjudged the proper owner when the boundaries were finally settled. It was also stipulated that prisoners concerned in the disturbances should be discharged, upon their entering into recognizances to appear and submit to trial when ordered by the king. Lastly, this agreement was not to redound to the prejudice of either party, and the king was desired to annul so much of his previous orders as differed from the foregoing. This was immediately approved by the king and ordered to be executed.
During the course of the suit in chancery the question at issue became still more involved by the new contention of Baltimore respecting the location of the fortieth parallel. It seems that the Maryland proprietor in 1714 sent over certain instruments to be used in determining astronomically the par- allels of latitude. By this proceeding it was found that the fortieth parallel was located about five miles north of Philadel-
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phia, and the thirty-ninth parallel the same distance south of the present city of Washington. Baltimore contended that the fortieth parallel should be determined according to present measurement. The Penns in turn urged their claim to the ter- ritory as far south as the thirty-ninth parallel. This contention properly had no weight with the chancellor. Then Baltimore endeavored to prevent a decree by a continuation of his policy of inventing all kinds of frivolous objections and captious criticisms. But when he saw that the coming decision was likely to be adverse, he demanded that the southern line of the Lower Counties should be traced directly west from the present Cape Henlopen, no matter where it was presumed to have been formerly located.
It may be said that the situation of Cape Henlopen, and the derivation of the name, were matters of considerable doubt. We have seen by the projected grant to the Duke of York in April 1683, that Cape Henlopen was known as Cape James, so named by Penn in honor of his patron. Moreover, in the deeds of enfeoffment of August 1682, the Hoarkills (or Whore- kills) were called Capin Lopen.I If this is true, then the pres- ent Cape Henlopen was intended, because it is situated very near the Hoarkills, which is a creek near the present town of Lewes. But the order of 1685 described the ocean as bound- ing the Lower Counties on the east, which it could not do if the cape was at the entrance to Delaware Bay; and in the map prefixed to the agreement of 1732 the present Cape Hen- lopen is called Cape Cornelius, for it was believed that Captain Cornelius May had called the Delaware cape and the Jersey
1 The language of the act of union passed at Chester, Dec. 7, 1682, and which united the province and Lower Counties is as follows : “ Forasmuch as all that tract of land lying on the west side of the river Delaware, beginning from twelve miles above Newcastle northward, and extending to the south cape, commonly called Cape Henlopen, making the mouth of the Bay of Delaware, of late divided into three counties, and called by the names of Newcastle, Jones and Whore-Kills, alias Deal." Charter and Laws of Pa., p. 104.
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cape after his own name. Various old Dutch and Swedish maps of the 17th century also indicate that the point of land called Cape Henlopen was about 25 miles south of the so called Cape Cornelius. The Penns claimed that the word "Henlopen " was derived from a Dutch word ' signifying " to recede," or "run away," because mariners at some distance out saw a jetty of land which had the appearance of a cape, but as they approached, it disappeared, and only a number of rocks were visible. Thus it was often called the "False Cape," in contradistinction to Cape Cornelius at the entrance to the bay. But in the course of time the name Cornelius was re- placed by Henlopen. Baltimore's witnesses on the other hand endeavored to prove that " Henlopen " was derived also from a Dutch word signifying "to flow in." Cape Henlopen, ac- cording to their argument, had always been situated at the mouth of the bay. Thereupon the Penns showed that, although the most southern county had changed its name successively from Hoarkills to Deal, and finally to Sussex, it was always believed to extend at least twenty miles south of Lewes, for the inhabitants of that region regularly attended the Sussex County court.2 A line drawn westward from the present Cape Henlopen would cut off a large portion of Sussex County. Hence this proposition of Baltimore's shared the same fate as his previous contention.
The case was carried on at great expense. Prominent crown lawyers were employed on both sides; and many wit- nesses were examined in England and America.3
Finally, May 15, 1750, Lord Chancellor Hardwicke pro- nounced his decree.4 He called attention to the chicanery of Baltimore in endeavoring to evade the agreement of 1732, and
1 Dr. O'Callaghan (Hist. of New Netherland, i, p. 73), says that Cape Hind- lopen was named after a town in the province of Friesland.
2 Breviat ; Mem. Pa. Hist. Soc., i, pt. i, pp. 190, 191.
8 Penn MSS., Penn vs. Baltimore. +MS. Decree of the Chancellor.
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the great expense the Penns had been forced to undergo.1 He thought that the Duke of York was a trustee for William Penn, and had the territory been at that time in the hands of a subject, he would have ordered that the contract to confirm possession should be fulfilled.2 Hence he decreed that the articles were obligatory, and should be fully executed by the parties in spite of the limitation of time. But this proceeding was not to prejudice any claim based on the title of the Duke of York or any other title which the crown might set up, nor the possession of settlers over whom the parties might have had no power. He therefore commanded that the plaintiffs and defendants within three months should appoint commis- sioners to ascertain the boundaries. These commissioners should act with fairness, and begin proceedings by November, 1750, so that the lines might be duly surveyed by April 30, 1752, at which time properly attested copies of the plan of survey should be entered in the public offices according to the agreement, and delivered also to the respective parties. Ques- tions on which they might not agree should be referred to a master in chancery. Concerning the location of the circum- ference of the circle, he declared that the intention of the articles was that the centre of the circle should be the middle of the town of Newcastle, and its radius twelve miles. Cape Henlopen he thought should be considered situated at the place mentioned in the map prefixed to the articles, i. e., 25 miles south of the present cape. After the boundaries had been determined, the parties were to make the necessary re- leases and assurances according to the agreement, and at the cost of the party desiring them. If the crown interposed any
1 1 Vesey's Reports, p. 455.
2 The solicitor-general advised the Penns to petition the king to make good the Duke of York's assurances of confirmation; while the attorney-general did not attempt to stop the execution of the agreement on the pretense that without direc- tion from the crown the parties had no right to enter into it. P. L. B., ii, T. P. to Hamilton, May 16, 1750.
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objections, the parties were again to apply to chancery for further directions. The Penns were ordered to pay Earl Powlett, one of the trustees to whom William Penn by will had confided the government of Pennsylvania and the Lower Counties, any expenses he might have undergone during the suit, while Baltimore was to pay the entire costs of the suit as ascertained by a master in chancery. Lastly, the chancellor reserved consideration of further costs and directions until the time limited for performance of the agreement had expired ; and both parties were allowed to resort to the court whenever occasion should require it.
The commissioners met at Newcastle, November 12, 1750, and agreed on a centre; but immediately a dispute arose concerning the measurement of the radii of twelve miles. Baltimore's representatives contended that they should be computed superficially; but the Pennsylvanians maintained that on account of the various inequalities of the ground, the radii measured by this method would not extend to points equidistant from the centre, and hence a true circumference could not thus be drawn. Therefore they insisted upon astro- nomical and geometrical measurement. This was another scheme of Baltimore to frustrate the agreement. Manifestly if the incline of every hill or depression, as well as the level ground in each twelve miles were measured, the radii as meas- ured on the horizontal would terminate at unequal distances from Newcastle, and through their terminations no circum- ference could be drawn. Thereupon the Penns applied to the chancellor, setting forth the new objections, and desired that the distances from both Newcastle and Philadelphia should be measured horizontally,not superficially. The request was granted.1
Then the commissioners in April, 1751, agreed that a line should be run due west, and properly marked from a point on the shore of the ocean 139 rods due east from a stone already
1 Agreement of 1760.
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fixed on the northern part of Fenwick's Island (near the former Cape Henlopen), across the peninsula to Chesapeake Bay. From the centre of this east and west line another line should be drawn northward, until it formed a tangent with the cir- cumference of the circle. This was subject however to altera- tion or confirmation by the chancellor, or by a joint order from their principals. The surveyors fixed the east and west line as far as Slaughter's creek, but the Maryland commission- ers insisted that the line should go no further, i. e., that its length should be 66 miles, 24812 rods. The Pennsylvania commissioners declared that the line should touch the shore of the bay, i. e., that it should be 69 miles, 298 rods in length. The deadlock continued till November, 1754, when the Penns exhibited in chancery a bill of reviver and a supplemental bill of complaint, and obtained an order to revive the proceed- ings.I
On behalf of Frederick, Lord Baltimore, his guardians in March, 1755, pleaded certain leases and releases as a bar to the relief sought, and insisted that his rights to the Lower Counties should not be affected by his father's articles of agree- ment. Thereupon, by permission of the chancellor, the Penns in September, 1755, filed an amended bill of reviver for spe- cific performance of the articles, and for security for the payment of the costs as formerly decreed and of such as might be in- curred by non-execution of the articles. At length Frederick, wearied of the struggle, in 1760 entered into a final agreement with the Penns. This provided that the east and west line should extend 69 miles, 298 rods; so that its exact centre should be 34 miles, 309 rods from the fixed point on Fenwick's Island. At this middle point of the line were to be placed several large stones, of which those facing to the south and west should have the arms of Baltimore marked on them,
1 If the Penns could have induced Baltimore to agree to the bill of reviver, they would have endeavored to procure from the crown a charter for the Lower Coun- ties. P. L. B., ii, T. P. to Peters, June 10, 1754.
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while those facing north and east should bear the arms of Penn. Baltimore consented also speedily to appoint commis- sioners to carry out the articles, and promised to indulge in no whimsical objections, and not to acquiesce in the prosecution of any suit by his tenants, whereby the right of the Penns to Pennsylvania and the Lower Counties, as bounded in 1732, might be questioned or impaired. Lastly, it was stipulated that Baltimore should make such additional assurances of his intention to render the articles and the decree effectual that further suits should cease, and the Penns be confirmed in their possession. Two years later the chancellor ordered it to be executed.I
Commissioners were again appointed, but the actual work of running the lines was entrusted to two expert surveyors, Charles Mason and Jeremiah Dixon.2 Differences of observa- tion or measurement, on which the respective commissioners could not agree, were divided equally between the Penns and Baltimore; but difficulties in exactly determining the tangent line and the northern boundary of Maryland, caused the survey to be protracted during several years.3 In 1767 Mason and Dixon finally located the northern boundary of Maryland at 39º 44', and extended it westward about 230 miles from the tangent line. At intervals of five miles they placed the marked stones, several of which are still standing, and smaller stones at every mile ; but throughout the last hundred miles of the distance, where transportation by carriage was impossible, the line was indicated by heaps of stones on the mountain ridges, as far as the summit of the Alleghanies, beyond which again it was marked by posts surrounded by stones and earth.4 The agree- ment and proceedings in determining this line, as well as the
1 P. L. B., vii, T. P. to Hamilton, March 6, 1762.
2 Penn MSS., T. P. to Peters, March 13, 1761; April 13, 1762.
3 P. L. B., vii, T. P. to Peters, Hamilton, and the commissioners, Jan. 18, and Feb. 12, 1763 ; May 24, 1765.
4 Latrobe, History of Mason and Dixon's Line.
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southern and northern boundary of the Lower Counties, were ratified by an order in council, January II, 1769, and procla- mations were issued to quiet the settlers in their possession. Thus by the running of "Mason and Dixon's Line " one of the most remarkable boundary disputes in the history of the American colonies was brought to an end.
II Connecticut.
THE extraordinary claim put forth by this colony to the land in the fertile Wyoming Valley is interesting, because it is an example of the shrewdness so characteristic of New Eng- land people. Nothing was heard of any territorial rights there until the land had become valuable by reason of adjacent settle- ments. Then the New Englanders realized that they were in possession of a piece of paper which promised them enormous tracts far away to the westward, and they saw the necessity of speedy action if they wished to make good their title. The Con- necticut-Pennsylvania claim rested on three considerations, viz .: the terms of the charters of the two colonies, Indian titles, and actual possession. The scheme appears to have originated in Windham County, for in March, 1753, a number of residents in that county submitted the proposition to the General Court. Utterly ignoring the Pennsylvania charter, and with possibly a recollection of the attempts of New Haven to establish a settle- ment on the Delaware in the middle of the seventeenth century, they called attention to the land on the Susquehanna, alleging that for a distance of seventy miles west of the Delaware it was unsettled, and that by charter it was within the territorial bounds of Connecticut. They stated that a company, then in process of formation, desired the General Court to grant it a quit claim for land sixteen miles square on both sides of the Susquehanna. They promised also to purchase the territory from the Indians, and within three years to have it duly settled. Of course it was to be subject to the jurisdiction of Connecticut.
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After the plan had been approved by the Court the "Susque- hanna Company " was formally organized."
The Connecticut claim, so far as there was any apparent basis for it, was founded on the royal charter of April 23, 1662. This purported to give to the governor and company of Connecticut all the territory bounded on the east by Nar- ragansett Bay, on the north by Massachusetts, and with this breadth stretching westward to the Pacific.2
As the Dutch interests had been established along the Hud- son, there was much less reason for so extensive a grant than when the early colonial charters were issued. All that may be said in justification is, that it was consistent with what had always been the claims of the English. The Penns believed that the purpose of the king was to bestow only the territory which had not been granted between Massachusetts and Ply- mouth on the north and east, and the Dutch settlements on the west, but not any territory west of the Delaware. In fact, March 12, 1664-5, the first grant was made to the Duke of York. This was followed by the conquest of New Netherland. Thenceforward an English province existed along the banks of the Hudson, and must be an obstacle in the way of the in- definite extension of Connecticut westward. The result of this grant and conquest was apparent when, in December, 1664, the royal commissioners, Nicolls, Cartwright and Maverick, with the consent of delegates from the Connecticut General Court, fixed the western boundary of that colony at the Mamaroneck
1 Larned, History of Windham County, i, p. 556 et seq.
2 The ingenious location of this territory by Rev. Dr. William Smith, of Phila- delphia, is interesting in this connection. He proceeded on the general theory that colonial grants were based on the Atlantic water front, and extended perpen- dicularly into the interior. He based the Connecticut territory on a line extend. ing a little south of west from Point Judith to Greenwich. He then laid the grant on this line, running back a little west of north to the South Sea, which he inti mated might be Lake Champlain. But this can hardly be a correct construction of the lines, for the grant would include all of western Massachusetts, an interfer- ence which it is not to be supposed was intended by grantors or grantees. See Smith, An Examination of the Connecticut Claims, etc., Philadelphia, 1774.
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river, and a line drawn northwest from its source. Its south- ern boundary was settled in accordance with the terms of the grant to the Duke of York, so that Long Island was put under the jurisdiction of New York. With a few slight changes these boundaries were ratified, November 23, 1683, by articles of agreement between Gov. Dongan and the council of New York on the one hand, and the governor and commis- sioners from Connecticut on the other.1 The settlement of the boundary was finally confirmed by an agreement dated May 14, 1731, between commissioners appointed from the two col- onies.
Whether this was to be construed as an absolute prohibi- tion, and that Connecticut could not thereafter assert any claims beyond the bounds of New York, was not expressly determined. The supporters of the later claims of Connecti- cut insisted that the settlement of the boundaries in 1664 was intended merely to determine the rights of the Duke of York in territory formerly owned by the Dutch, and could not prejudice the rights of the governor and company to any ter- ritory west of his limits. Because the land west of the Dela- ware river was not directly claimed by the Dutch, they thought it was the property of the crown at the time of the Connecticut grant, and was not re-invested in the crown by any settlement of boundaries. Moreover, when events were rapidly leading to a formal support of the Susquehanna Company by direct action of the colony, certain prominent crown lawyers were asked in 1773 to give their views of the case. They expressed the opinion that the words of the charter of 1620, limiting the grant to lands not " actually possessed and inhabited by any other Christian prince or state," did not apply to lands west of the Dutch possessions. They believed that the agreements between New York and Connecticut were intended merely to settle the boundaries between those colonies, and did not affect the claims of either to other territories. Furthermore,
1 Penn MSS., The Wyoming Controversy.
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. since the charter to Connecticut antedated Penn's by only nineteen years, there was no reason to presume that the crown could make a valid grant to Penn of a country so re- cently granted to others." But in answer to this, it is to be noted that the attorney general, when giving his opinion on Penn's petition in 1680, stated that the land west of the Dela- ware river was " undisposed of, unless the imaginary lines of New England patents, which are bounded westwardly by the South Sea, should give them a real though impracticable right to all those vast territories."2 Again, the opinion of the attorney general in 1762 is worthy of consideration. He ob- served that, if all the colonies in North America were to remain bounded as described in the original grants, none of them had wholly escaped from encroachment. Hence if grants were the only rule, there would be no end of disputes. Other consider- ations, he thought, than mere parchment boundaries, as pos- session, acquiescence of the parties, and conformity with the condition and needs of the province at the time of the grant, should have weight in reaching the final decision. He asserted that the western boundary of Connecticut as men- tioned in the charter, was barred by the Dutch in 1662, and that the later agreements prevented that colony from advanc- ing beyond the existing limits. His conclusion was that the crown, when prevailed upon to convey a territory belonging to another state then in amity with England, had been de- ceived. Connecticut therefore had no right to assert any pre- tensions to charter limits by overleaping the province of New York, and encroaching on Pennsylvania, because he believed that the boundary when so determined left a new grant open to the crown's disposal.3 This view of the attorney-general seems to afford the best practical solution of the difficulties which resulted from the carelessness of the crown in bestow- ing its easily-acquired dominions. Were the vague words of
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