USA > Virginia > A history of the valley of Virginia, 1st ed > Part 18
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'The sale of the estate of lord Fairfax by his legatees in England, and the devise and sale of the estate of the late Col. 'T. B. Martin, is the last chapter in the history of the Fairfax interest in the Northern Neck, a territory comprising about one fourth of the whole of the preseut limits of Virginia.
The state of Maryland has lately set up a claim to a
* The estate sold for about one hundred thousand dollars.
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considerable tract of territory on the north west border of Virginia, including a part of the Northern Neck. As the claim was pushed with much earnestness, the executive of our state appointed Charles James Faulk- ner, Esq. of Martinsburg, a commissioner to collect and embody the necessary testimony, on behalf of Virginia, on this interesting question. Mr. Faulkner's able re- port the author deems of sufficient interest to his rea- ders generally to insert in this work. It follows :
Report of Charles James Faulkner relative to the boundary line between Virginia and Maryland.
MARTINSBURG, Nov. 6, 1832.
SIR : In execution of a commission addressed to mic by your excellency, and made out in pursuance of a joint resolution of the general assembly of this state, of the 20th of March last, I have directed my attention to the collection of such testimony as the lapse of time and the nature of the inquiry have enabled me to pro- cure touching "the settlement and adjustment of the western boundary of Maryland." The division line which now separates the two states on the west, and which has heretofore been considered as fixed by posi- tive adjudication and long acquiescence, commences at a point where the Fairfax stone is planted, at the head spring of the Potomac river, and runs thence due north to the Pennsylvania line. This is the boundary bv which Virginia has held for near a century ; it is the line by which she held in 1786, when the compact made by the Virginia and Maryland commissioners was solemnly ratified by the legislative authorities of the two states.
An effort is now made by the general assembly of Maryland, to enlarge her territory by the establishment of a different division line. We have not been inform- ed which fork of the South Branch she will elect as the new boundary, but the proposed line is to run from one of the forks of the South Branch thence due nouh to the Pennsylvania terminus. It i: needless to say that
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the substitution of the latter line, no matter at which fork it may commence, would cause an important di- minution in the already diminished territorial area of this state. It would deprive us of large portions of the counties of Hampshire, Hardy, Pendleton, Ran- dolph and Preston, amounting in all to almost half a million of acres-a section of the commonwealth which, from the quality of its soil, and the character of its po- pulation, might well excite the cupidity of a government resting her claims upon a less substantial basis than a stale and groundless pretension of more than a centu- ry's antiquity. Although my instructions have direct- cd my attention more particularly to the collection and preservation of the evidence of such living witnesses "as might be able to testify to any facts or circumstan- ces in relation to the settlement and adjustment of the western boundary," I have consumed laut a very incen- siderable portion of my time in any labor or inquiry of that sort, for who indeed, now living, could testify to any. " facts or circumstances" which occurred nearly a century since ? And if such individuals were now liv- ing, why waste time in taking depositions as to those "facts," in proof of which the most ample and authen- tic testimony was taken in 1736, as the basis of a royal adjudication ? I have consequently decmed it of more importance to procure the original documents where pos- sible, if not, authentic copies of such papers as would serve to exhibit a connected view of the origin. progress and termination of that controversy with the crown, which resulted, after the most accurate and laborious surveys, in the ascertainment of those very. "facts and circumstances" which are now sought to be made again the subjects of discussion and inquiry. In this pursuit I have succeeded far beyond what I had any greind for anticipation : and from the almos forgotten rubbish of past years, have been enabled to draw forth docu- ments and papers whose interest may survive the occa- sion which redeemed them from destruction.
'To enable your excellency to form a just conception
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of the weight and importance of the evidence herewith accompanying this report, I beg leave to submit with it a succinct statement of the question in issue between the governments of Virginia and Maryland, with some ob- servations shewing the relevancy of the evidence to the question thus presented.
The territory of Maryland granted by Charles I. to lord Baltimore in June 1632, was described in the grant as "that region bounded by a line drawn from Wat- kins's point on Chesapeake bay to the ocean on the east; thence to that part of the estuary of Delaware on the north which lieth under the 40th degree, where New- England is terminated ; thence in a right line by the degree aforesaid, to the meridian of the fountain of the Potomac ; thence following its course by its farther bank to its confluence." (Marshall's Life of. Wash- ington, vol. 1, ch. II. pp. TS-81, 1st edition.)
It is plain that the western boundary of this grant was the meridian of the fountain of the Potomac, from the point where .it cut the 40th degree of north latitude to the fountain of the river ; and that the extent of the grant depended upon the question, what stream was the Potomac? So that the question now in controversy grows immediately out of the grant. The territory granted to lord Baltimore was undoubtedly within the chartered limits of Virginia : (See Ist charter of April 1606, sec. 4, and the 2d charter of May 1609, see. 6; Ist Hen. Stat. at Large, pp. 58-SS.) And Marshall says that the grant " was the first example of the dis- memberment of a colony, and the creation of a new one within its limits. by the mere act of the crown ;" and that the planters of Virginia presented a petition against it, " which was heard before the privy commeil (of England) in July 1633, when it was declared that lord Baltimore should retain his patent, and the petition- ers their remedy at law. To this remedy they never thought proper to resort."
Whether there be any record of this proceeding ex- tant, I have never been able to learn. 'The civil war in
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England broke out about ten years after, and perhaps the journals of the proceedings of the privy council were destroyed. Subsequently to this, we are informed by Graham, the planters, " fortified by the opinion of emi- nent lawyers whom they consulted, and who scrupled not to assure them that the ancient patents of Virginia still remained in force, and that the grant of Mary- land, as derogatory to them, was utterly void, they presented an application to the parliament, complaining of the unjust invasion which their privileges had un- dergone." ( Graham's History, vol. 2, p. 12.) But as the parliaments of those days were but the obsequi- ous ministers of the crown, that application, it is presu- med, likewise shared the fate of their former petition to the privy council.
The present claim of Maryland, then, must be found- ed on the supposition that the stream which are call the Potomac was not ; and that the stream now called the South branch of the Potomac, was in fact the Potomac intended in the grant to lord Baltimore. I have never been informed which fork of the South branch she clairs as the Potomac (for there is a North and a South fork of the South branch) ; neither have I been able to learn what is the evidence, or the kind of evidence, on which she relies to ascertain that the stream which is noi called the South branch of the Potomac, but which at the date of the grant to lord, Baltimore was not known at all, and when known, known for many years only as the Wappcecmo, was the Potomac intended by lord Baltimore's grant. . For this important geo- graphical fact, I refer to the numerous carly maps of the chartered limits of Virginia and Maryland, some of which are to be seen in the public libraries of Washing- ton and Richmond.
The question, which stream was the Potomac ? is simply a question which of them, if either, bore the name. The name is matter of general reputation. If there be any thing which depends wholly upon general acceptation, which ought and must be settled by pre-
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scription, it is this question, which of these rivers was and is the Potomac? The accompanying papers, it is believed, will ascertain this fact to the satisfaction of every impartial inquirer.
In the twenty-first year of Charles II. a grant was made to lord Hopton and others, of what is called the Northern Neck of Virginia, which was sold by the oth- er patentees to lord Culpeper, and confirmed to him by letters patent in the fourth year of James II. This grant carried with it nothing but the right of soil and the incidents of ownership ; for it was expressly sub- jected to the jurisdiction of the government of Virginia. Of this earlier patent I believe there is no copy in Vir- ginia. The original charter from James II. to lord Culpeper accompanies this report, marked No. 1. They are both recited in the colonial statute of 1736. (1 Rer. Code, ch. S9.) The tract of country thereby granted, was " all that entire tract, territory and parcel of land, lying and being in America, and bounded by and with- in the heads of the rivers Tappahannock alias Rap- pabannock, and Quiriough alias Potomac rivers. the course of the said rivers as they are commonly called and known by the inhabitants, and description of their parts and Chesapeake bay."
As carly as 1729, in consequence of the cagerness with which lands were sought on the Potomac aud its tributary streams, and from the difficulties growing ont of conflicting grants from lord Fairfax and the crown, the boundaries of the Northern Neck proprietary be- came a subject which attracted deep and earnest atten- tion. At this time the Potomac had been but little ex- plored ; and although the stream itself above its conflu- ence with the Shenandoah was known as the Colon- goroota, or Upper Potomac, it had never been made the subject of any very accurate surveys and examinations, nor had it yet been settled, by any competent authority, which of its several tributaries was entitled to be re- garded as the main or principal branch of the river. It
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became important, therefore, to remove all further doubt upon that question.
In June 1729, the lieutenant-governor of Virginia addressed a communication to the lords commissioners of trade and plantation affairs, in which he solicits their attention to the ambiguity of the lord proprietor's char- ter, growing out of the fact that there were several streams which might be claimed as the head springs of Potomac river, among which he enumerates the She- nandoah, and expresses his determination "to refuse the suspension of granting of patents, until the case should be fairly stated and determined according to the genuine construction of the proprietor's charter." "This was fol- lowed by a petition to the king in council, agreed to by the house of burgesses of Virginia, in June 1730, in which it is set forth, among other matters of complaint, "that the head springs of the Rappahannock and Po- tomac are not yet known to any of your majesty's sub- jects ;" that much inconvenience had resulted to gran- tees therefrom, and praying the adoption of such mnea- sures as might lead to its ascertainment to the satisfac- tion of all parties interested. Lord Fairfax, who, by his marriage with the only daughter of lord Culpeper, had now succeeded to the proprietaryship of the North- ern Neck, feeling it likewise due to his grantees to have the question relieved from all further difficulty, prefer- red his petition to the king in 1733, praying that his majesty would be pleased to order a commission to is- sue, for running out, marking, and ascertaining the bounds of his patent, according to the true intent and meaning of his charter. An order to this effect was accordingly directed by the king ; and three commis- sioners were appointed on behalf of the crown, and the same number on behalf of lord Fairfax. The duty which devolved upon them was to ascertain, by actual examination and survey, the true fountains of the Rap- pahannock and Potomac rivers. 'To enable them more perfectly to discharge the important trust confided to them, they were authorized to summon persons before
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them, to take depositions and affidavits, to search pa- pers, and employ surveyors, chain-carriers, markers, and other necessary attendants. The commissioners convened in Fredericksburg, on the 26th of Septem- ber, 1736, and proceeded to discharge their duties, by taking depositions, appointing surveyors, and making every needful and requisite preparation for the survey. 'They commenced their journey of observation and sur- vey on the 12th day of October, 1736, and finished it on the 14th of December, of the same year; on which day they discovered what they marked and reported to be the first fountain of the Potomac river. Separate reports were made by the commissioners, which reports, with all the accompanying documents, papers, surveys, plans, &c. were, on the 21st of December, 1738, refer- red to the council for plantation affairs. That board, after hearing counsel, made a report on the 6th day of April, 1745, in which they state, "that having exam- ined into the several reports, returns, plans, and oth- er papers transmitted to them by the commissione s appointed on behalf of the crown, as likewise of lord Fairfax, and having been attended by counsel on be- half of your majesty, as likewise of lord Fairfax. and having heard all that they had to offer thereupon, and the question being concerning that boundary which ought to be drawn from the first head or spring of the river Rappahannock to the first head or spring of the river Potomac, the committee do agree humbly to re- port to your majesty as their opinion, that within the words and meaning of the letters patent, granted by king James II. bearing date the 27th day of Septem- ber, in the fourth year of his reign, the said boundary ought to begin at the first spring of the South branch of the river Rappahannock, and that the said bounda- ry be from thence drawn in a straight line north west to the place in the Allegany mountains where that part of the Potomac river, which is now called Co- hongpronta. first rises." The Cohongoroota is known to be the stream which the Maryland writers term the
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North branch of the Potomac, but which is recogni- zed in Virginia, and described on all the maps and sur- veys which I have ever yet seen, as the Potomac river, from its first fountain, where the Fairfax stone is loca- ted, to its confluence with the Shenandoah ; there be- ing, properly speaking, no such stream as the North branch of the Potomac. This report of the council for plantation affairs was submitted to the king in council on the 11th of April, 1745, and fully confirmed by him, and a further order made, directing the appoint- ment of commissioners to run and mark the dividing line agreeably to his decision thus made. Commission- . ers were accordingly appointed, who, having provided themselves with surveyors, chain-carriers, markers, &c. commenced their journey on the ISth of September, 1746. On the 17th of October, they planted the Fair- fax stone at the spot which had been described and marked by the preceding commissioners as the true head spring of the Potomac river, and which has con- tinued to be regarded, from that period to the present time, as the southern point of the western boundary be- tween Maryland and Virginia. A joint report of these proceedings was made by the commissioners to the king, accompanied with their field notes ; which report was received and ordered to be filed away among the records of his majesty's privy council. Thus termina- ted, after a lapse of sixteen years, a proceeding, which had for its object, among other matters, the ascertain- ment of the first fountain of the Potomac river, and which resulted in the establishment of that "fact" by a tribunal of competent jurisdiction. This decision has now been acquiesced in for near a century; and all to- pographical description and sketches of the country have been made to conform to it. I say acquiesced in, for it is imp wsible to regard the varying, fluctuating le- gislation of Maryland upon the subject, at one session of her general assembly recognizing the line as now established, (see compact of 1785, Session Acts of 1803, 1818, and others,) at another authorizing the
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appointment of commissioners to adjust the boundary, as a grave resistance of its conclusiveness, or such a continual claim, as under the usages of international law would bar an application of the principles of ysu- caption and prescription. (See Vattel, p. 251. Gro- tius, lib. 2, cap. 4. Wolftus. Jus. Nat. par. 3.)
Jurisdiction in all cases relating to boundaries be- tween provinces, the dominion and proprietary govern- ment, is by the common law of England exclusively vested in the king and council. (1 Ves. sen. p. 417.) And notwithstanding it may be a question of boundary between the crown and a lord proprietor of a province, (such as that between lord Fairfax and the crown, ) the king is the only judge, and is presumed to act with en- tire impartiality and justice in reference to all persons concerned, as well those who are parties to the procced- ing before him, as others not parties who may yet be interested in the adjustment. ( Vesey, ib.) Such is the theory and practice of the English constitution ; and although it may not accord precisely with our im- proved conceptions of juridical practice, it is neverthe- less the law which must now govern and control the le- gal aspect of the present territorial dispute between Vir- ginia and Maryland.
It does not appear by the accompanying papers, that Charles lord Baltimore, the then proprietor of Maryland, deputed an agent to attend upon his part in the ex- amination and survey of the Potomac river. It is possible he conceived his interests sufficiently protected in the aspect which the controversy had then assumed between lord Fairfax and the crown. Certain it is. that it nowhere appears that he ever considered himself ag- grieved by the result of that adjustment. That his go- vernment was fully apprised of what was in progress, can scarcely admit of a rational doubt. For it is in- possible to conceive that a controversy so deeply affect- ing not only the interests of lord Baltimore, but all who were concerned in the purchase of land in that section of the country, and conducted with so much solemuity
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and notoriety, could have extended through a period of sixteen years without attracting the attention of the gc- vernment of Maryland- a government ever jealous, because ever doubtful of the original tenure by which her charter was held. But had lord Baltimore even considered himself aggrieved by the result of that set- tlement, it is difficult now to conceive upon what ground he would have excepted to its justice, or questioned its validity. Could he have said that the information upon which the decision was founded was imperfect ? Qr that the proceedings of the commissioners were cha- racterized by haste, favoritism or fraud? This, the proceedings of that board, still preserved, would contra- dict. For never was there an examination conducted with more deliberation, prosecuted with more labor, or scrutinized with a more jealous and anxious vigilance. Could he have shewn that some other stream ought to have been fixed upon as the true head spring of the Po- tomac ? This, it is believed, is impossible ; for although it may be true that the South branch is a longer stream, it nevertheless wants those more important characteris- tics which were then considered by the commissioners, and have been subsequently regarded by esteemed geo- graphers as essential in distinguishing a tributary from the main branch of a river. (See Flint's Geography, vol. 2, p. 88.) Lastly, would he have questioned the authority of the crown to settle the boundaries of lord Fairfax's charter. without having previously made him a party to the proceeding ! I have before shewn the futility of such an idea. Besides, this would have been at once to que-tion the authority under which he held his own grant ; for Baltimore held by virtue of an arbi- trory act of the second Charles. His grant was mani- fetly made in violation of the chartered rights of Vir- ginia, and carried into effect not only without the ac- quiescence, but against the solemn and repeated remon- stranees of her goverment. Was Virginia consulted in the "dismemberment" of her territory? Was she made a party to that preceeding, by which, "for the first
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time in colonial history, one new province was created within the chartered limits of another by the mere act of the crown?" But the fact is, that Charles lord Bal- timore, who lived for six years after the adjustment of this question, never did contest the propriety of the boundary as settled by the commissioners, but from all that remains of his views and proceedings, fully acqui- esced in its accuracy and justice. (See treaty with the Six Nations of Indians, at Lancaster, in June 1744.)
'The first evidence of dissatisfaction with the boun- dary as established, which the researches of the Mary- land writers have enabled them to exhibit, are certain instructions from Frederick lord Baltimore (successor of Charles) to Governor Sharpe, which were presented by the latter to his council in August 1753. I have not been able to procure a copy of those instructions, but a recent historian of Maryland, and an ingenious advo- cate of her present claim, referring to them, says, " His instructions were predicated upon the supposition that the survey might possibly have been made with the knowledge and concurrence of his predecessor, and hence he denies the power of the latter to enter into any arrangement as to the boundaries, which could extend beyond his life estate, or conclude those in re- mainder." ( M. Mahon's History of Maryland, p. 53.)
What were the precise limitations of those convey- ances made by the proprietors of Maryland, and under which Frederick lord Baltimore denies the power of his . predecessor to enter into any arrangement as tothe boun -- daries, which could extend beyond his life estate, I am unable to say-my utmost researches having failed to furnish me with a copy of them-but they were so far satisfactory to his lordship's legal conceptions, as to in- duce him to resist even the execution of a decree pro- nonneed by lord Hardwicke, in 1750. (1 Ves. sen. pp. 414-46) upon a written compact as to boundaries, which : had been executed by his predecessor and the Penns. in 1732. 'To enforce submission to that decree, the Penns filed a bill of reviver in 1754, and after an ineffectual
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struggle of six years, lord Baltimore was compelled with a bad grace to submit, and abide by the arrangement as to the boundaries which had been made by his prede- cessor. To this circumstance, in all probability, was lord Fairfax indebted for his exemption from the further demands of the proprietor of Maryland. For lord Fred- erick, no ways averse to litigation, had by this time doubtless become satisfied that the power of his prede- cessor did extend beyond his life estate, and might even conclude those in remainder. Be that as it may, how- ever, certain it is that the records of Maryland are silent upon the subject of this pretension, from September 1753, until ten years subsequent to the compact between Virginia and Maryland in 1785.
An opinion prevails among some of our most distin- guished jurists, resting solely upon traditionary infor- , mation, that about 1761, Frederick lord Baltimore pre- sented a petition to the king and council, praying a re- vision of the adjustment made in 1745, which petition was rejected, or after a short time abandoned, as hope- less. If there ever was such a proceeding, I can find nothing concerning it in the archives of Virginia.
Be that as it may, it is certain that ever since 1745 Jord Fairfax claimed and held, and the commonwealth of Virginia constantly to this day has claimed and held by the Cohongoroota. that is by the northern branch, as the Potomac; and whatever lord Baltimore or his heirs, and the state of Maryland may have claimed, she has held by the same boundary. There was no reason why lord Fairfax, being in actual possession, should have controverted the claim of lord Baltimore, or Maryland. If lord Baltimore or Maryland, ever controverted the boundary, the question must, and either has been deci- ded against them, or it must have been abandoned as hopeless. If they never controverted it, the omission to do so, can only be accounted for, upon the supposition that they knew it to be hopeless. If Maryland ever as- serted the claim-seriously asserted it I mean-it must have been before the revolution, or at least during it,
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