USA > Virginia > A history of the valley of Virginia, 3rd ed > Part 18
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only daughter, who is now the wife of Rev. Thomas Kennerly. Col. Martin directed by his will the sale of all the residue of his estate, and the money arising from the sale to be remitted and paid to his two maiden sisters in England. * Shortly after his death an attempt was made to escheat the landed estate, and the suit was depending some sixteen or eighteen years before its final decision. The Court of Appeals at length decided the question in favor of Martin's legatees.
It is proper, before the subject of Lord Fairfax's immense grant is dismissed, to inform the reader, that a few years after the War of the Revolution, an attempt was made to confiscate all that part of his landed estate devised by his nephew Denny Martin (afterwards Denny Lord Fairfax). But Messrs. Marshall, Colston and Lee, having purchased the estate, a compromise took place between them and the state government, for the particulars of which the reader is referred to the first volume of the Revised Code of the Laws of Vir- ginia, pp. 352, 353.
The sale of the estate of Lord Fairfax by his legatees in Eng- land, and the devise and sale of the estate of the late Col. T. B. Mar- tin, 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 present limits of Virginia.
The State of Maryland has lately set up a claim to a considera- ble tract of territory on the northwest 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 Faulkner, Esq., of Martinsburg, a commissioner, to collect and em- body the necessary testimony, on behalf of Virginia, on this inter- esting question. Mr. Faulkner's able report the author deems of sufficient interest to his readers generally to insert in this work. It follows :
REPORT OF CHARLES JAMES FAULKNER, RELATIVE TO THE BOUND- ARY LINE BETWEEN VIRGINIA AND MARYLAND.
MARTINSBURG, VA., November 6th 1832.
SIR :- In execution of a commission addressed to me 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 enquiry have enabled me to procure 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 positive adjudication and long acquiescence, commences at a point where the Fairfax stone is planted, at the head spring of the Poto-
* The estate sold for about one hundred thousand dollars.
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mac River, and runs thence due north to the Pennsylvania line. This is the boundry to which Virginia has held for nearly 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 informed 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 north to the Pennsylvania terminus. It is needless to say that the substitution of the latter, no matter at which fork it may commence, would cause an important diminution in the already diminished territorial area of this State. It would deprive us of large portions of the counties of Hampshire, Hardy, Pendleton, Randolph 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 popula- tion, might well excite the cupidity of a government resting her claims upon a less substantial basis than a stale and groundless pre- tension of more than a century's antiquity. Although my in- structions have directed 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 circumstances in relation to the settlement and adjustment of the western boundary," I have consumed but a very inconsiderable 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 living, why waste time in taking depositions as to those "facts," in proof of which the most ample and authentic testimony was taken in 1736, as the basis of a royal adjudication ? I have consequently deemed it of more importance to procure the original documents where possible, 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 sur- veys, 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 ground for anticipation ; and from the almost forgotten rubbish of fast years, have been enabled to draw forth documents and papers whose interests may survive the occasion which redeemed them from destruction.
To enable your Excellency to form a just conception 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 Mary- land, with some observations showing the relevancy of the evidence to the question thus presented.
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The territory of Maryland granted by Charles I. to Lord Balti- more, in June, 1632, was described in the grant as "that region bounded by a line drawn from Watkins' Point on Chesapeake Bay to the ocean on the east ; thence to that part of the estuary of Dela- ware on the north which lieth under the fortieth degree, where New England is terminated ; thence in a right line by the de- gree aforesaid, to the meridian of the fountain of the Potomac ; thence following its course by its farther bank to its conflu- ence." ( Marshall's Life of Washington, vol. I, chap II, pp. 78-81, Ist 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 fortieth degree of north latitude to the fountain of the river ; and 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 Vir- ginia : (See Ist chapter of April, 1606, sec. 4, and the 2nd charter of May, 1609, sec. 6, Ist of Hen. Stat. at Large, pp. 58-88. And Mar- shall says that the grant "was the first example of the dismember- ment of the 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 council (of England) in July, 1633, when it was de- clared 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 extant, I have never been able to learn. The civil war in 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 in- formed by Graham, the planters, "fortified by the opinion of emin- ent 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 Maryland, as derogatory to them,, was utterly void, they presented an application to the parliament complaining of the unjust invasion which their privileges had undergone." ( Graham's History, vol. 2, p. 12). But as the parliaments of those days were but the obsequious ministers of the crown, that application, it is presumed, likewise shared the fate of their former petition to the privy council.
The present claim of Maryland, then, must be founded on the supposition that the stream which we 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 claims 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, on
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which she relies to ascertain that stream which is now called the South Branch of the Potomac, but which at the date of the grant to Lord Baltimore was not known at all, but when known, known for many years only as the Wappacomo, was the Potomac intended by Lord Baltimore's grant. For this important geographical fact, I refer to the numerous early maps of the chartered limits of Virginia and Maryland, some of which are to be seen in the public libraries of Washington and Richmond.
The question, which stream was the Potomac? is simply a question which of them, if either, bore the name. The name is a matter of general reputation. If there be any thing which de- pends wholly upon general acceptation, which ought and must be settled by prescription, 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 impar- tial 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 other patentees to Lord Culpeper, and con- firmed 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 inci- dent of ownership; for it was expressly subjected to the jurisdic- tion of the government of Virginia. Of this earlier patent I believe there is no copy in Virginia. The original charter from James II. to Lord Culpeper accompanies this report, marked No. I. They are both recited in the Colonial statute of 1736. (I Rev. Code, ch. 89). The tract of country thereby granted, was "all that entire tract, territory and parcel of land, lying and being in America, and boun- ded by and within the heads of the rivers, Tappahannock alias Rappahannock, and Quiriough alias Potomac Rivers, the course of said Rivers as they are commonly called and known by the inhabi- tants, and description of their parts and Chesapeake Bay."
As early as 1729, in consequence of the eagerness with which lands were sought on the Potomac, and its tributary streams, and from the difficulties growing out of conflicting grants from Lord Fairfax and the crown, the boundries of the Northern Neck pro- prietary became a subject which attracted deep and earnest atten- tion. At this time the Potomac had been but little explored ; and although the stream itself above its confluence with the Shenandoah was known as the Cohongoroota, or Upper Potomac, it had never been made the subject of any very accurate surveys and examina- tions, nor had it yet been settled, by any competent authority, which of its several tributaries was entitled to be regarded as the main or principal branch of the River. It 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 trades and plantation affairs, in which he solicits their attention to the ambiguity of the
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lord proprietor's charter, growing out of the fact that there were several streams which might be claimed as the head springs of the Potomac River, among which he enumerates the Shenandoah, and expresses his determination "to refuse the suspension of granting of patents, until the case should be fairly stated and determined ac- cording to the genuine construction of the proprietor's charter." This was followed 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 Potomac are not yet known to any of your Majesty's subjects ; but much inconvenience had resulted to gran- tees therefrom, and praying the adoption of such measures as might lead to its ascertainment to the satisfaction of all interested." Lord Fairfax, who, by his marriage with the only daughter of Lord Cul- peper, had now succeeded to the proprietorship of the Northern Neck, feeling it likewise due to his grantees to have the question re- lieved from all further difficulty, preferred his petition to the king in 1733, praying that his Majesty would be pleased to order a com- mission to issue, 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 to the king ; and three commissioners 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 Rappahannock and Potomac Rivers. To enable them more perfectly to discharge the important trust confied to them, they were authorized to summon persons be- fore them, to take depositions and affidavits, to search papers, and employ surveyors, chain-carriers, markers, and other necessary attendants. The commissioners convened in Fredericksburg, on the 26th of September, 1736, and proceeded to discharge their du- ties, by taking depositions, appointing surveyors, and making every needful and requisite preparation for the survey. They commenced they journey of observation and survey 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 accompany - ing documents, papers, surveys, plans, &c., were on the 21st of December, 1738, referred 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 examined into the several reports, returns, plans, and other papers transmitted to them by the commissioners appointed on behalf of the crown, as likewise of Lord Fairfax, and having been attended by council on behalf of your Majesty, as likewise of Lord Fairfax, and having heard all they had to offer thereupon, and the question being concerning that boundary which ought to be drawn from the first head spring of the
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River Rappahannock to the first head or spring of the River Poto- mac, the committee do agree humbly to report to your Majesty as their opinion, that within the words and meaning of the letters pa- tent, granted by King James II, bearing date the 27th day of Sep- tember, in the fourth year of his reign, the said boundary ought to begin at the first spring of the South Branch of the River Rappa- hannock, and that the said boundary be from thence drawn in a straight line northwest to the place in the Alleghany Mountains where that part of the Potomac River, which is now called Cohongo- roota, first rises." The Cohongoroota is known to be the stream which the Mayland writers term the North Branch of the Potomac, but which is recognized in Virginia, and described on all the maps and surveys which I have ever yet seen, as the Potomac River, from its fountain, where the Fairfax Stone is located, to its confluence with the Shenandoah River; there being, properly speaking, no such stream as the North Branch of the Potomac River. This re- port 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 appointment of commission- ers to run and mark the dividing line agreeably to this decision thus made. Commissioners were accordingly appointed, who, having provided themselves with surveyors, chain-carriers, markers, &c., commenced their journey on the 18th of September, 1746. On the 17th of October they planted the Fairfax 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 continued to be regarded, from that period to the present time, as the south- ern point of the western boundary between 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 terminated, after a lapse of six- teen years, a proceeding, which had for its object, among other matters, the ascertainment of the first fountain of the Potomac River, and which resulted in the establishment of that "fact " by a tribu- nal of competent jurisdiction. This decision has now been acqui- esced in for near a century ; and all topographical description and sketches of the country have been made to conform to it. I say acquiesced in, for it is impossible to regard the varying, fluctuating legislation 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 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 usucapation and prescrip- tion. (See Vattal, p. 251. Grotius. lib. 2, cap. 4. Wolfius Jus. Nat. par. 3.
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Jurisdiction in all cases relating to boundaries between provin- ces, the dominion and proprietary government, is by the common law of England exclusively vested in the king and council. (I Ves. Sen. p. 447). And notwithstanding it may be a question of bound- ary between the crown and the lord proprietor of a province, (such that as between Lord Fairfax and the crown), the king is the only judge, and is presumed to act with entire impartiality and justice in reference to all persons concerned, as well as those who are parties to the proceeding before him, as others not parties who may not 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 improved conceptions of juri- dical practice, it is nevertheless the law which must now govern and control the legal aspect of the territorial dispute between Virginia 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 examination and survey of the Potomac River. It is possible he conceived his interests sufficiently pro- tected in the aspect which the controversy had then assumed be- tween Lord Fairfax and the crown. Certain it is, that it nowhere appears that he ever considered himself aggrieved by the result of that adjustment. That his government was fully appraised of what was in progress, can scarcely admit of a rational doubt. For it is impossible to conceive that a controversy so deeply affecting 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 solemnity and notoriety, could have extended through a period of sixteen years without attracting the attention of the government of Maryland-a government ever jealous, because ever doubtful of the original tenue by which her charter was held. But had Lord Baltimore even considered himself aggrieved by the result of that settlement, it is difficult now to conceive upon what ground he would have excepted to its justice, or question its validity. Could he have said that the information upon which the decision was founded was imperfect ? Or the proceedings of the commissioners were characterized by haste, favoritism or fraud? This, the pro- ceedings of that board, still preserved, would contradict. For never was there an examination conducted with more deliberation, prose- cuted with more labor, or scrutenized with a more jealous or anxi- ous vigilance. Could he have shown that some other stream ought to have been fixed upon as the true head spring of the Potomac? 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 characteristics which were then considered by the commissioners, and have been subsequently regarded by esteemed geographers as essential in distinguishing a tributary from the main branch of a river. (See Flint's Geography, vol. 2, p. 88). Lastly,
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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 shown the fu- tility of such an idea. Besides, this would have been at once to question the authority under which he held his own grant; for Baltimore held by virtue of an arbitrary act of the second Charles. His grant was manifestly made in violation of the chartered rights of Virginia, and carried into effect not only without the acquies- cence, but against the solemn and repeated remonstrance of her government. Was Virginia consulted in the " dismemberment" of her territory ? Was she made a party to that proceeding, by which, "for the first 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 Baltimore, 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 acquiesced in its accu- racy and justice. (See the treaty with the six nations of Indians, at Lancaster, in June, 1744).
The first evidence of dissatisfaction with the boundary as estab- lished, which the researches of the Maryland writers have enabled them to exhibit, are certain instructions from Frederick Lord Balti- more (successor of Charles) to Governor Sharp, which was pre- sented by the latter to his council in August, 1753. I have not been able to procure a copy of those instructions, but a recent his- torian of Maryland, and an ingenious advocate of her present claim, referring to them, says, "His instructions were predicted 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 would extend beyond his life estate, or conclude those in remainder." (See McMahon's History of Mary- land, p. 53).
What where the precise limitations of those conveyances made by the proprietors of Maryland, and under which Frederick Lord Baltimore denies the power of his predecessor to enter into an ar- rangement as to the boundaries, which would extend beyond his life estate, I am unable to say-my utmost researches have failed to furnish me with a copy of them-but they were so far satisfactory to his lordship's legal conceptions, as to induce him to resist even the execution of a decree pronounced by Lord Hardwicke, in 1750, (I Ves. Sen. pp. 444-46) 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 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 predecessor. To this circumstance, in all probability,
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was Lord Fairfax indebted for his exemption from the further demands of the proprietor of Maryland. For Lord Frederick, no ways averse to litigation, had by this time doubtless become satis- fied that the power of his predecessor did extend beyond his life's estate, and might even conclude those in remainder. Be that as it may, however, 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.
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