USA > Pennsylvania > The making of Pennsylvania; an analysis of the elements of the population and the formative influences that created one of the greatest of the American states > Part 23
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The deeds of the Duke of York left that boundary un- certain, and simply conveyed in a general way the land from twelve miles north of New Castle on the north, to
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Cape Henlopen on the south, with the Delaware River and Bay for an eastern boundary, and no mention of any western boundary. It was rather difficult to say what the western boundary was, for the Dutch had never established one, but had simply occupied the western shores of the Delaware, and, therefore, it seemed reason- able to divide the peninsula equally.
The decision of the council was confined to the bound- ary between Delaware and Maryland, and nothing was said about the disputed boundary of the fortieth degree between Maryland and Pennsylvania. But Delaware was the first and most important subject of controversy, for Penn considered it very essential as controlling the navigation to Pennsylvania, and Baltimore wanted it for the same reason.
It was impossible, of course, to divide Delaware, for the two proprietors would not agree. When William III. came to the throne after the Revolution of 1688, he deprived Penn of both Delaware and Pennsylvania for a few months, for fear they might fall into the hands of France or Spain, and when he restored them he described Penn as proprietor of "New Castle and the territories depending thereon," which was in accordance with the decision of the council, and, of course, favorable to Penn, but could not be regarded as marking out the exact western boundary line, which the council had ordered and which Baltimore refused to accept.
For twenty-three years after the decision of the coun- cil, Lord Baltimore allowed Penn to occupy, plant, im- prove, and settle Delaware, without attempting to interrupt him, and then in 1708 had the temerity to offer a petition to Queen Anne, saying that the previous order in council
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had been surreptitiously obtained and should be re- voked.
The queen dismissed his petition in a few days ; but, nothing daunted, he offered again the same petition in the following year. Her majesty, by an order in council, directed that a day be fixed when all parties should be heard, and accordingly, on the 23d of June, 1709, Balti- more and Penn again appeared before the privy council, and the whole question was gone into anew, with the result that the petition was dismissed, the old order of council, directing Delaware to be equally divided, ratified and confirmed, and directed to be put in execution with- out delay.
The order was never obeyed by Baltimore. He dis- regarded it as he had disregarded the first order, and made no effort to mark out the western boundary of Delaware. But Penn was never again disturbed in his possession of the country below New Castle, and he and his heirs always regarded this last decision of the privy council as, in effect, securing them in the enjoyment of the full limits of their grant from the Duke of York.
The boundary on the beginning of the fortieth degree between Pennsylvania and Maryland still remained un- settled. Year after year passed away ; the people on the border, uncertain of their position, refused to pay taxes to either government; the sheriffs of adjoining counties carried on a warfare of petty annoyance, and rough, law- less men appeared, who willingly made the disputes between the provinces an excuse for fighting. One of the most notable of these was Tom Cresap, a mixture of Indian trader and hunter, called by the Indians, in return for his liberal hospitality, the Big Spoon. He was a
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most sincere and unselfish supporter of the Baltimores, and was thoroughly convinced that their land went all the way up to the end of the fortieth degree. When ar- rested for one of his murders and taken to Philadelphia, he coolly called it a pretty Maryland town.
In the midst of these disturbances, in 1718, Penn died, leaving the question as unsettled as it was in 1682. Cecil Calvert, the second Lord Baltimore, who had received the grant of Maryland in 1632, was long since dead, having died, in fact, before the Pennsylvania charter was granted. His son was also dead and also his grand- son, who had petitioned Queen Anne in 1708. Charles Calvert, the fifth Lord Baltimore, was now proprietor of Maryland, and the first of the family to show a glimmer- ing of reason.
He went to Penn's widow, now the proprietress of Pennsylvania, and admitted that he had no color or pretence of title to Delaware, and with surprising good sense suggested that no more land should be granted near either of the disputed borders by either govern- ment for eighteen months, within which time he hoped all difficulties could be settled. An agreement to ab- stain from granting land was accordingly signed in February, 1723; the eighteen months wore away, and also several years, and yet the agreement was faithfully observed by Hannah Penn, and after her death by her children. Baltimore seems also to have observed it, although the Penns charged that he made a number of vague, general grants of land without specifying any particular locality, in the hope, as they said, that the persons to whom the grants were made would take up land in the disputed territory.
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The death of Hannah Penn in 1726 and the youth of her children delayed the marking of the boundaries, and Baltimore now assumed the part of a much-injured person, and in 1731 petitioned the Crown to compel the proprietors of Pennsylvania to join with him in settling , the boundaries. At the same time he applied to John and Thomas Penn to hold meetings with him and draw I up an agreement of settlement. He seemed to be alto- gether consumed with zeal for agreement, and he pro- posed the terms of it, all of which were accepted and the articles signed May 10, 1732.
So far as Delaware was concerned, the settlement was the same that the Dutch delegates had suggested to his ancestor seventy years before, and the same that the privy council had twice ordered to be carried into effect. The line for the southern boundary of Pennsylvania was about seven miles north of the head of Chesapeake, and the same which Penn in his interview with Baltimore at West River had offered by way of compromise when he said that he was willing Maryland should have two of the old degrees, or one hundred and twenty miles north- ward from Watkin's Point. There is no question that by this agreement Baltimore was getting all that ever belonged to him, all that the first Lord Baltimore pos- sessed, and all that impartial judges had decided to be justly due.
His lordship prepared a map to be annexed to the agreement, and on it he marked the boundaries hc wished established. The map was entirely his own suggestion. He said he had procured it from his agents in Maryland, and the Penns accepted it as correct.
There was some controversy at the time, and much
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more afterwards, about the true position of Cape Henlo- pen. There were two capes which at different times were known by that name. The cape now called Hen- lopen, directly at the mouth of Delaware Bay, was in early times called Cornelius, and the name Henlopen, or Hinlopen, was given to a point of land twenty miles to the south, sometimes called the False Cape. It was not a cape at all, but merely a slight rounding of the beach and a boldness of outline on shore, which when seen from the sea became, by a common optical delusion, a long tongue of land stretching out into the ocean.
This phenomenon is quite frequent on that part of the coast, a very small change in the contour of the shore often becoming greatly exaggerated, and these places are usually known among sailors as false capes, or points no-point. There is an instance of them on the coast of Virginia, just below Cape Henry, and it is still called the False Cape.
When the early Dutch navigators approached the mouth of the Delaware, coming, as they usually did, from the south, the lower cape always deceived them, and the name which they gave it, Heenloopeen, or Hinlopen, is said to mean the disappearing cape. Most of their maps, and also the English maps, display it as very much extended into the ocean, making, together with the real cape farther north, a sort of double cape at the southern corner of the bay. The real cape at the entrance of the bay became gradually called by its present name, Hen- lopen, either by transfer of the name of the false cape, or, as some have contended, from the corruption of another Dutch word, Inloopen, which meant the entering cape.
Penn had always insisted that the title he got from the
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Duke of York placed the southern boundary of Delaware at the false cape now known as Fenwick's Island. Lord Baltimore's agreement and map admitted this claim, and Delaware was divided between the two proprietors by drawing a line directly west from the false cape across the peninsula to the Chesapeake. From the middle of this line another line was drawn directly north, tangent to a circle of twelve miles radius drawn round New Castle. This settled the boundaries of Delaware: on the north the circle; on the east, Delaware river, bay, and the ocean ; on the south, the line drawn west from the false cape ; and on the west, the line drawn north from the middle of the false cape line.
The boundaries of Pennsylvania and Maryland were settled by continuing the line drawn from the middle of the false cape line until it reached a parallel of latitude which was fifteen miles south of a parallel passing along South Street, which was then the most southerly portion of Philadelphia, and the parallel thus reached, drawn westward, was to be the southern limit of Pennsylvania.
Nothing could have been more fair and satisfactory than this agreement, for it placed the boundaries where common sense and justice demanded, and where the Dutch delegates, the privy council, King James II., William Penn, and everybody, except the Baltimores, had always said they ought to be.
As Baltimore had offered the agreement, and all his suggestions for its provisions had been accepted by the Penns, there was every reason to suppose that he would be the one most ready to fulfil it. Each side appointed commissioners, who were to meet and mark the lines, and they were given eighteen months to complete the work,
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namely, to December 25, 1733. John Penn sailed for Pennsylvania, and Lord Baltimore for Maryland, to superintend the final settlement.
But Baltimore had proposed the agreement in one of the lucid intervals which had been rare in his family, and the papers were scarcely signed before he repented of it. He soon began to take advantage of every trivial circumstance for delay, and it was said that he was largely influenced in this course by the persuasions of the seven commissioners he had appointed to mark the lines, and by others interested in land grants.
The seven commissioners, and many other people in Maryland, held those general warrants, granting large tracts of land, without specifying exactly where they were to be situated. So long as the boundary lines were unsettled, such people could take up their land in the disputed regions in Delaware and Pennsylvania, and, after the boundaries were settled, hold the land as having been granted to them by a regularly organized govern- ment under the British Crown, even if they found them- selves within the limits of Pennsylvania. It was a cheap and convenient method of acquiring some of the fertile tracts which lay outside of Maryland.
Certain it is, that those seven Maryland commissioners, who had been appointed by Baltimore to assist in mark- ing the boundaries, were most delinquent in not marking them, and in absolutely preventing their being marked. The history of their ingenious devices for delay would fill many pages ; and they had to be very ingenious, for the agreement provided that whichever side should be in default and prevent the execution of the agreement should forfeit five thousand pounds.
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The holders of the land-warrants, it is said, had urged on Baltimore to simply break the agreement, and they would subscribe among themselves the five thousand pounds. But this was unnecessary, for the commissioners were fully equal to the occasion.
They began their meetings with the Pennsylvania com- missioners October 6, 1732, and the first thing they did was to object to the validity of the commission held by the Pennsylvanians, because certain legatees of forty thou- sand acres of land under William Penn's will had not signed it. They refused to have minutes taken of the joint meetings, and refused to have clerks appointed. They suffered a great deal from ill health. They called for the production of original documents which they hoped werc in England and would take months to procure. They insisted that they had no power to fix upon the exact spot for the centre of the circle round New Castle, and that the circle of twelve miles round that town meant a circle of twelve miles circumference, and not twelve miles radius. They appointed meetings at a little village called Joppa, seventy miles from New Castle, and without accommodations for men or horses. Sometimes they suggested meetings at Cape Henlopen, and when they had no other excuse they would retire to their lodgings, play at games, or refuse to be seen. In this way they wore out the eighteen months, and the 25th of December, 1733, came without an inch of boundary being marked.
Having thus broken the agreement, as he thought, Lord Baltimore, in the following summer, presented a petition to the Crown, claiming the whole of Delaware, and asking to be put in possession of it, although his
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name was still signed to an agreement giving the whole of that country to the Penns. He gave no notice of this petition to the Penns, two of whom were in America, and the one in England a mere boy just come of age. Bal- timore seems to have had on this occasion the deliberate intention of forcing his petition to a conclusion in the absence of his opponents and without their knowledge.
But the end of his chicane was now in sight. The Penns heard of the petition in time to resist it, and the committee of the privy council, to whom it was referred, ordered the disputants to proceed at law under the articles of agreement, and this revealed Baltimore's mistake.
The lawyers of the Penn family, in the suit which followed, always complained, with much bitterness, of the way in which Baltimore had forced the agreement on the sons of William Penn, then young men lately come of age, and with little or no knowledge of the intricate boundary disputes; how he had insisted on all of his own points, and rejected all of theirs, and how the agree- ment was, in the end, entirely of his own making, with not a single request of the young men granted, and with a map attached which he had himself prepared.
If, however, Baltimore had intended to overreach the Penns, he succeeded only in overreaching himself, and he had unconsciously made a trap for his own catching. He made a great mistake in signing that agreement, and it is difficult now to see why he signed it. Without that agreement he had to deal only with the privy council, which was not a court of law, not obliged to decide any question definitely, and careless about enforcing the few recommendations it made. But the agreement took the
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case away from the privy council and brought it before the chancellor in a court of equity. The agreement was simply an ordinary legal contract which belonged to the courts, and with which the privy council had nothing to do. The courts of England at that time could not decide between conflicting royal grants in the colonies, but they could enforce a contract which related to those grants.
The Penns were now in a very strong position. They had their agreement, and the privy council had advised them to enforce it; and, accordingly, in 1735 they filed a bill in equity to compel specific performance. The bill was a long and complete history of the whole dispute. The answer was equally long, and both were perfect specimens of that skilled equity draughtsmanship which delighted the lawyers of that time. These two docu- ments, with the proofs and exhibits, now fill seven hun- dred and ninety closely printed pages in the sixteenth volume of the " Pennsylvania Archives," and to any one who is at all familiar with the main points of the con- troversy are as interesting and exciting as a novel.
The defence which Baltimore's solicitors prepared for him in such rich old legal English was, however, ab- surdly weak. Beyond the astute attempt to throw doubt and uncertainty on everything said by the Penns, it con- sisted of only three points.
The Dutch and Swedes, he said, were mere itinerant traders, and so few in numbers that they could hardly be said to have occupied any part of Delaware before the grant of the Maryland charter in 1632. The agree- ment of 1732, not having been executed by December 25, 1733, had expired and could not be enforced. Even
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if it had not expired, it should not be enforced against Baltimore, because he had been led into it by a mistake. The young Penns had deceived him, and he had mis- taken his rights and foolishly consented to part with his property. The map upon which he had relied and had attached to the agreement was a fraud. It had been imposed on him by the Penns, who had secretly had it prepared and sent to Maryland, so that it would get into the hands of his agents. In this way the false cape had been forced upon him, and he had consented to it as the beginning of the southern line of Delaware, when in truth that line should have been farther north at the real cape. He entirely failed, of course, to estab- lish any of these extraordinary propositions, and the court found no difficulty in deciding against him.
He was, however, very successful in gaining time, and every delay that could be invented to check the progress of the proceedings was used. He saved himself much time by his privilege of Parliament, and by having the bill referred to a master for scandal and impertinence, so that more than two years had passed before he filed his answer. The taking of testimony in America also caused great delay, and while the suit was in progress the troubles among the people on the border grew worse and worse.
In the hope of checking them, a royal order was issued in 1738, commanding the proprietors to mark a tem- porary line, which should be accepted as the boundary until the question was permanently settled. The order unfortunately had an effect just the reverse of what was expected. The sheriffs of the border counties seemed to think that they had now full authority for acting against
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intruders, and they raided each other's territory to make arrests. There was also a long squabble with the Mary- land commissioners about marking the temporary line, which was at last marked by the Pennsylvania commis- sioners alone.
The case on the articles of agreement was not finally argued and disposed of until 1750, fifteen years after it had been begun. It was an important occasion, attract- ing much interest, and the speeches of counsel occupied five days. The decision was rendered by Lord Hard- wicke, one of the greatest equity lawyers of England, and the case has become a leading authority for the well- established doctrine that a court of equity deals directly with the individual, although the subject matter of the controversy may be outside of its jurisdiction. His lordship had some severe comments for the conduct of Baltimore, and ordered the agreement to be enforced without further delay or quibbling.
One might suppose that this was the end, but it was not, and a quarter of a century elapsed before the boundary question could be put at rest. Baltimore could still raise difficulties, and he found an excellent point for himself in the circle round New Castle, the radius of which he said must be measured on the ground up and down the hills, instead of in a horizontal air line.
Another application had to be made to the court to convince him of his error. But, true to his family traditions, he soon had another objection. The western side of Delaware was by the agreement to begin at the middle of the line drawn from the false cape to the Chesapeake, and he insisted that the middle of this line was half-way between the false cape and the first creek
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that was reached flowing into the Chesapeake. This would have reduced Delaware to very narrow limits, and still another application had to be made to the court to convince him that the line crossing the peninsula must reach from the false cape to the shore of the bay. He died about this time, and his successor, Frederick, Lord Baltimore, raised the objection that the suits had abated, and declined to be bound by any of the acts of his predecessor or by any decrees made against him.
In this way ten years were frittered away until 1760, when a new agreement was made with the new Lord Frederick, ratifying with slight changes the old one of 1732. Preparations were immediately made to mark the lines, and the Pennsylvania commissioners appointed were the governor, James Hamilton, Richard Peters, Rev. Dr. Ewing, William Allen, William Coleman, Thomas Willing, Benjamin Chew, and Edward Shippen, Jr., an excellent selection, and an assurance of good faith and skill. Three years were spent by the sur- veyors employed by the commissioners in marking the lines of Delaware. The circle round New Castle was drawn by Rittenhouse, and added much to his reputation.
But the work seemed too slow to satisfy the proprie- tors, and in 1763, Mason and Dixon, two well-known English astronomers, were sent out to revise what had already been done and complete it. They resurveyed the circle and the tangent drawn to it for Delaware's western boundary, but were unable to make it vary by a single inch from the lines of Rittenhouse and the others.
They then set about the more difficult task of mark-
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ing the long line to the west for the boundary between Pennsylvania and Maryland. Four years were spent on it, as they proceeded step by step, cutting a vista twenty- four feet wide among the trees, in the middle of which they marked the exact line. At every fifth mile a stone was set up marked on the side towards Pennsylvania with the arms of the Penns, and on the side towards Maryland with the arms of Baltimore. The intermediate miles were marked with stones having P. on one side and M. on the other.
As they proceeded, the Indians became more and more suspicious. They could not understand the object of an exploring expedition that spent every clear night gazing at the stars through big guns, and they soon stopped its advance. The Penns used their influence with the chiefs of the Six Nations, and the work began again. The western extremity of Maryland was reached and passed, and the astronomers were encamped on the banks of the Monongahela. Here the Indians again interposed, and many of the servants and workmen of the expedition deserted. But the delight of running an astronomical line through primeval forests raised Mason and Dixon above all fears, and they pressed on to the Warrior Branch of the great Catawba Indian trail.
The patience of the Indians was now exhausted, and they were determined that this star-gazing folly should penetrate not another step into the sacred West. Mason and Dixon were obliged to return, and the Warrior trail remained the terminus of their line for many years. On their way back to Philadelphia they often amused them- selves by climbing to the summits of the mountains,
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from which they could see the vista of their line stretch- ing for many miles to the horizon, and they noticed, with great pleasure, that it seemed to have the true curve of a line of latitude encircling the round earth.
It was really a great achievement, and a new thing in the science of that day. The two unpretending and skilful men had made themselves immortal. Their line was what we call an imaginary one. There was no river, or mountain chain, or natural feature to mark it; and to this day the farmer that lives upon it cannot tell, from anything he sees in nature, whether he is ploughing in Maryland or Pennsylvania. But this line, fixed after nearly a hundred years of conflict, is more unalterable than if nature had made it. It grew more and more unal- terable with every year after it was made, and it was soon discovered that it was more than the boundary between two States : it was the boundary between the conflicting ideas of the continent, between the North and the South.
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