USA > West Virginia > History of West Virginia > Part 15
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To enable Your Excellency to form a just conception of the weight and importance of the evidence here- with accompanying this report, I beg leave to submit a succinct statement of the question in issue between the governments of Virginia and Maryland, with some observations showing the relevancy of the evi- dence 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 Watkin's point on Chesapeake bay to the ocean on the east; thence
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to that part of the estuary of Delaware on the north which lyeth under the fortieth 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 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 lati- tude 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 con- troversy grows immediately out of the grant. The territory granted to Lord Baltimore was undoubtedly within the chartered limits of Virginia. (See Ist char- ter of April, 1606, sec. 4, and the 2d charter of May, 1609, sec. 6, Ist Hen. Stat. at Large, pp. 58-88.) And Marshall says that the grant " was the first example of the dismemberment 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 council- of England-in July, 1633, when it was declared that Lord Baltimore should retain his patent, and the peti- tioners 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 informed by Graham, the planters, "fortified by the
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opinion of eminent 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, presented an application to the parlia- ment complaining of the unjust invasion which their privileges had undergone." (" Graham's History," vol. ii., 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 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 south fork of the South Branch-neither have I been able to learn what is the evidence, or kind of evidence, on which she relies to ascertain that the 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, and 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 that name. The name is matter of general reputation.
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If there be anything which depends wholly upon gen- eral 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 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 other 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, where it was expressly subjected to the jurisdiction of the government of Vir- ginia. Of this earlier patent I believe there is no copy in Virginia. The original charter of James II. to Lord Culpeper accompanies this report, marked No. I. They are both recited in the colonial statutes 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 bounded by and within the heads of the rivers Tappahannock, alias Rappahannock, and Quiriough, alias Potomac, the course of said rivers as they are commonly called and known by the inhabitants, 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 boundaries of the Northern Neck proprietary became a subject which attracted deep and earnest attention. At this time the Potomac had been but
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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 examinations, nor had it yet been settled, by any com- petent 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 trade and plantation affairs, in which he solicits their attention to the ambiguity of the lord proprietor's charter, growing out of the fact that there were several streams which might be claimed as head springs of the Potomac river, among which he enumerates the Shen- andoah, 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 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 com- plaint, " that the head springs of the Rappahannock and Potomac are not yet known to any of your majesty's subjects ; that much inconvenience had re- sulted to grantees 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 relieved from all further diffi-
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culties, preferred his petition to the king in 1733, pray- ing that his majesty would be pleased to order a commission 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 by the king, and three commissioners were appointed on behalf of the crown, and the same number on behalf of Lord Fair- fax. 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 confided to them, they were authorized to summon persons before them, to take depositions and affidavits, to search papers, and employ surveyors, chain-carriers, markers, and other necessary attend- ants. The commissioners convened in Fredericksburg, on the 26th of September, 1736, and proceeded to dis- charge their duties, by taking depositions, appointing surveyors, and making every needful and requisite preparation for the survey. They commenced their 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 fountain of the Potomac river. Separate reports were made by the commissioners, which reports, with all the accompany- ing documents, papers, surveys, plans, etc., were, on the 2Ist 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 the several reports, returns, plans, and other papers transmitted to them by
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the commissioners appointed on behalf of the crown, as likewise of Lord Fairfax, and having been attended by · counsel on behalf of your majesty, as likewise of Lord Fairfax, and having heard all they had to offer there- upon, 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 report 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 of September, 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 said boundary be from thence drawn in a straight line northwest to the place in the Allegheny mountains where that part of the Potomac river, which is now called Cohongoroota, first rises. The Cohongoroota is known to be the stream which the Maryland writers term the north branch of the Potomac, 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 first fountain, where the Fairfax Stone is located, to its confluence with the Shenandoah ; there being, properly speaking, no such stream as the north branch of the Potomac." This report of the council for plantation affairs was sub- mitted to the king in council on the 1 1th of April, 1745, and fully confirmed by him and a further order made, directing the appointment of commissioners to run and mark the dividing line agreeably to his decision thus made. Commissioners were accordingly appointed, who, having provided themselves with surveyors, chain- carriers, markers, etc., commenced their journey on the
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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 commis- sioners 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 southern 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 sixteen 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 estab- lishment of that "fact" by a tribunal of competent jurisdiction. This decision has now been acquiesced in for nearly a century ; and all topographical descrip- tion 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 Mary- land, 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 usucaption and prescription. (See Vattel, p. 251, Grotius, Lib. 2, cap. 4 ; Wolfius Jus. Nat., par. 3.)
Jurisdiction in all cases relating to boundaries between provinces, the dominion and proprietary gov-
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ernment 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 boundary between the crown and the lord proprietor of the province-such as that 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 those who are parties to the proceeding before him, as others not parties who may yet be interested in the adjustment. (Vęsey, ib.) Such is the theory and practice of the English consti- tution ; and although it may not accord precisely with our improved conceptions of juridical practice, it is nevertheless the law which now must govern and con- trol 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 Mary- land, deputed an agent to attend upon his part in the examination and survey of the Potomac river. It is pos- sible 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 him- self aggrieved by the result of that adjustment. That his government was fully apprised of what was in pro- gress, 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 atten-
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tion of the government 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 settlement, 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? Or. that the proceedings of the commis- sioners were characterized by haste, favoritism or fraud? This, the proceedings of that board, still pre- served, would contradict. For never was there an examination conducted with more deliberation, prose- cuted with more labor, or scrutinized with a more jealous or anxious 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 consid- ered by the commissioners, and have been subsequently regarded by esteemed geographers, as essential in dis- tinguishing 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 shown the futility 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 with-
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out the acquiescence, but against the solemn and repeated .remonstrances 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 commis- sioners, but from all that remains of his views and pro- ceedings, fully acquiesced in its accuracy and justice. (See the treaty with the Six Nations of Indians, at Lancaster, 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 Sharp, 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 advocate 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 remainder. (See 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
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which Frederick Lord Baltimore denies the power of his predecessor to enter into any arrangement as to the boundaries, which could 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 concep- tions, 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 predeces- sor 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 cir- cumstance, in all probability, 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 satisfied that the power of his predecessor did extend beyond his life estate, and might even conclude those in remainder. Be that as it may, however, cer- tain 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 our most distinguished jurists, resting solely upon traditionary information, that about 1761 Frederick Lord Baltimore presented a petition to the king and council, praying a revision of the adjustment made in 1745, which petition was rejected, or after a short time, abandoned as hopeless.
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If there ever was such a proceeding, I can find nothing of it in the archives of Virginia.
Be that as it may, it is certain that ever since 1745, Lord 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 con- troverted the boundary, the question must, and either has been decided 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 asserted the claim-seriously asserted it, I mean-it must have been before the Revolution, or at least, during it, when, we all know, she was jealous enough of the extended territory of Virginia. The claim must have had its origin before the compact between the two States, of March, 1785. (I Rev. Code, ch. 18.) We then held by the same boundary by which we now hold ; we held to what we called and now call the Po- tomac ; she then held to what we call the Potomac. Is it possible to doubt that this is the Potomac recognized by the compact? That compact is now forty-seven years old.
I have diligently inquired whether, as the Potomac above the confluence of the Shenandoah was called the Cohongoroota, the stream called the South Branch of the Potomac ever had any peculiar name, known to
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and established among the English settlers-for it is well known that it bore the Indian name of Wappacomo. I never could learn that it was known by any other name but that which it yet bears, the South Branch of the Potomac. Now that very name of itself sufficiently evinces that it was regarded as a tributary stream of another river, and that river the Potomac: and the river of which the South Branch was the tributary, was regarded as the main stream.
But let us for a moment concede that the decision of the king in council was not absolutely conclusive of the present question ; let us concede that the long ac- quiescence of Maryland in that adjustment has not precluded a further discussion of its merits ; let us even suppose the compact of 1785, thrown out of view, with all the subsequent recognitions of the present boundary by the legislative acts of that State, and the question between the two streams now for the first time pre- sented as an original question of preference ;- what are the facts upon which Maryland would rely to show that any other stream, than the one bearing the name, is entitled to be regarded as the main branch of the Potomac? It were idle to say that the South Branch is the Potomac, because the South Branch is a longer or even a larger stream than the North Branch, which Virginia claims to hold by. According to that sort of reasoning, the Missouri above its confluence with the Mississippi is the Mississippi, being beyond comparison the longer and larger stream. The claim of the South Branch, then, would rest solely upon its great length. In opposition to this it might be said the Cohongoroota is more frequently navigable-that it has a larger vol- ume of water-that the valley of the South Branch is,
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in the grand scale of conformation, secondary to that of the Potomac-that the South Branch has not the general direction of that river, which it joins at right angles- that the valley of the Potomac is wider than that of the South Branch, as is also the river broader than the other. And lastly the course of the river and the direction of the valley are the same above and below the junction of the South Branch. (See letters accompanying this report, No. 26.) These considerations have been deemed sufficient to establish the title of the "father of waters " to the name which he has so long borne. (See History and Geography of Western States, vol. 2, Missouri.) And as they exist in equal extent, so should they equally confirm the pre-eminence which the Cohongoroota has now for near a century so proudly and peacefully enjoyed.
The claim of Maryland to the territory in question is by no means so reasonable as the claim of the great Frederick of Prussia to Silesia, which that prince as- serted and maintained, but which he tells us himself he never would have thought of asserting, if his father had not left him an overflowing treasury and powerful army.
With this brief historical retrospect, presented as explanatory of the accompanying testimony, I will now lay before your excellency, in chronological order, a list of the documents and papers referred to in my pre- ceding observations.
No. I. Is the original grant from King James II. to Thomas, Lord Culpeper, made on the 27th of Septem- ber, in the fourth year of his reign.
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