mere agreement was effectual for that purpose, by the well known compact of 10th May, 1732, entered into between Lord Baltimore of the one part, and John, Richard and Thomas Penn, proprie. taries of Pennsylvania, of the other part. of This agreement, so far as it relates to the definition of the boundaries, was a full concession of the claims of the latter. In determining the boundaries of their respective peninsular posAgreement sessions, it provided that they should consist of a May 10th, 1732, line beginning at the easternmost part of Cape Henlopen, and running due west to the exact middle of the peninsula at that point, and of a line running from that middle point in a northerly direction so as to form a tangent to a circle drawn around New Castle, with a radius of twelve miles. And thus it gratified the grant of 1682, from the Duke of York to Penn, the original proprietor, which, as has been seen, conveyed all the territory for twelve miles around New Castle, and thence southward to Cape Henlopen. In adjusting the northern boundary of Maryland, which was also the southern boundary of Pennsylvania, it determined that that boundary should begin, not at the 40th degree of latitude, as called for by the charter of Maryland, but at a latitude fifteen English statute miles south of the most southerly part of Philadelphia; and that to connect this common boundary line with the boundary lines of their peninsular possessions, it should begin upon the said tangent line, if it extended to that latitude, or if not, that then a line should be drawn due north from the point at which the tangent met the circle until it reached that latitude, and that the said boundary line between Maryland and Pennsylvania should then begin: and that beginning in said latitude, either on said tangent line, or said north line, as the case might be, it should run due west to the western extremity of the two states. As incidental to this agreement, there were incorporated into it several stipulations with reference to the navigation of rivers, flowing through both provinces, and as to the interests of grantees or occupants of lands lying within the debateable territory, which, for the purposes of the present enquiry, it is not material to notice. To carry it into effect, each of the contracting parties was required to appoint, within two months thereafter, not less than seven commissioners, under whose direction the survey of the boun daries was to be completed on or before the 25th of December, 1733, and when completed, a plat of the survey, with an exact description of its courses and bounds, was to be signed both by the commissioners and the proprietaries, and entered on record in the public offices of the provinces. (54) In pursuance of this agreement, commissioners were appointed, between whom, at the very outset of the performance of their duties, differences arose as to the proper application of the terms of the agreement, and the manner of carrying it into execution, which at once put an end to this new effort at adjustment. plication to the eil, and result of The result of it was, however, such as to give Baltimore cause to tremble for the extent of his concessions in that agreement: and now, for the first time, he sought to relieve himself from all Baltimore's ap- further controversy, by obtaining from King George king in coun. II. a confirmation of the charter, non obstante the words of description contained in it, which represented it "as uncultivated, and inhabited by savages." These unfortunate words, which the sagacity of Penn had turned to good purpose, in his objections to the charter, as obtained by misrepresentation at least as to the peninsular territory, had been the source of his most serious difficulties, and they now suggested an expedient which it would have been well for the proprietary of Maryland to have adopted in the very origin of the controversy. To adopt this expedient, was indeed to admit the force of the objection, and hence the tardy resort to it; yet it is probable, that if instead of relying with entire confidence upon the efficacy of the charter, the proprietary had, upon the first appearance of this objection, petitioned for this confirmation, it would have been at once accorded by the justice of the crown, and thus in all future contests, his claims would have rested upon an unquestionable chartered right. Fortified by this right, whatever might have been the result during the reign of James, the principles of political liberty and the respect for chartered rights, which rose in triumph when he fell, must ultimately have restored Baltimore to the full enjoyment of his original grant. As it was, the proprietaries of Maryland had suffered difficulty to ac (54) For a view of this agreement see the recitals of the agreement of 1760, hereafter alluded to, and also 2d Proud, 209, and Kilty's Landholder's Assistant, 170 and 171. cumulate upon difficulty, and objection to spring upon objection, until it was too late to retrace their steps. Had the confirmation been sought and obtained in the first instance, it would have beena preventive; but now it was applied for as a remedy, and only when all else had failed. The application thus made was strenuously opposed by the proprietaries of Pennsylvania, who interposed Baltimore's voluntary agreement and surrender of territory as a bar to his application. The result was, that for the purpose of testing the validity and conclusiveness of that agreement, by an order of the King in Council in 1735, the Penns were directed to institute proceedings in Chancery upon it, and the consideration of the petition was delayed to await the issue of those proceedings. The proceedings in Chancery were accordingly instituted in June, 1735, and the question of right involved in it, was thus suspended until the decree in 1750. (55) State of the boun agreement of 1732, until the decree thereon in 1750. During this interval, some excesses of a frightful nature were committed on the borders of Lancaster and Baltimore counties. The most prominent of these was, the attack upon daries from the the house of Thomas Cresap, a citizen of Maryland, which was made by a body of armed men from Pennsylvania, who are said to have set fire to the house in which were Cresap and his family and several of his neighbours, and to have attempted to murder them as they made their escape from the flames. (56) On the other hand it was alleged in recrimination by the government of Pennsylvania, that a body of armed men from Maryland, to the number of three hundred, had invaded the county of Lancaster in a warlike manner, and had resorted to the most violent measures during their incursions, to coerce submission to the government of Maryland. These border excesses, and the recent defection of many citizens of Baltimore county, who formally renounced their allegiance to the government of Maryland, were of so alarming a character, that the governor and council of Maryland, found it necessary to make a full representation of the facts, both to the proprietary and the King in Council. Their petition occasioned an order in council of August, 1737, by which the proprietaries were commanded to put a stop to these excesses, and to use their utmost (55) See the recital of the agreement of 1760. (56) Council Proceedings, Liber M, A. D. 1735. 41 efforts to preserve peace between the two provinces: and as the best mode of accomplishing this, they were inhibited from making any grant of the disputed lands, and particularly in the three lower counties, and from suffering any person to make settlements therein, until his majesty's pleasure, with reference to the territory in question, should be signified to them. (57) The situation of the two proprietaries at that moment, and their desire to conciliate the crown, induced a ready compliance with this order in council, to carry which into effect, an agreement was entered into between them in May, 1738, which provided for the running of a provisional and temporary line between the provinces, which was not to interfere with the actual possessions of the settlers, but merely to suspend all grants of the disputed territory as defined by that line, until the final adjustment of the right. This agreement was approved of by the king, and ordered to be carried into execution, and, in pursuance of it, in 1739 the provisional line was actually run. (58) of Decree upon the Upon the proceeding in Chancery, a decree was pronounced by chancellor Hardwicke, in May, 1750. It is not necessary to review the various objections, both to the jurisdiction of the court, and the efficacy of the agreement, which were urged on behalf of Lord Baltimore. They are all summarily stated by the chancellor in his decision, as reported in 1st Vesey Sen'rs Reports, 444 to 456. It seems, however, to illustrate the circumstances, under which the agreement of 1732 was entered into, and the agency of Baltimore in bringing it about. In the remarks of the chancellor upon the allegation of imposition and fraud practiced upon Baltimore in the formation of that agreement, he says, "It would be unnecessary to enter into the particulars of that evidence: but it appears that the agreement was originally proposed by the defendant himself; that he himself produced the map or plan afterwards annexed to the articles,-that he himself reduced the heads of it into writing, and was very well assisted in making it: and further, that there was a great length of (57) Council Proceedings, Liber M, which contains all the representations, proclamations and council transactions generally, in connexion with these border tumults. And also the above mentioned order in Council of 18th August, 1737. (58) See Smith's Laws of Pennsylvania, 2d vol. 134. time taken for consideration and reducing it to form." Under such a state of facts, the objection to its execution certainly came very ungraciously from Baltimore; and whatever his folly in forming it, it was but justice not to permit him to stultify himself. The objections to the jurisdiction being overruled, the decree, therefore, very equitably ordered the specific execution of the agreement: and to obviate the difficulties which had arisen in the voluntary effort in 1733, to carry it into execution, the chancellor pronounced an opinion as to the true location of Cape Henlopen, and the manner in which the circle around New Castle was to be described. As to the former he remarks, "that it is clear by the proof, that the true situation of Cape Henlopen is, as it is marked in the plan, and not where Cape Cornelius is, as is insisted upon by the defendant, which would leave out a great part of what was intended to be included in Penn's grant from the Duke of York: and there is, says he, strong evidence of seisin and possession by Penn, of that spot of Cape Henlopen, and of all acts of ownership." The circle around New Castle he held to be a circle described around it with a radius of twelve miles, radiating from the centre of the Town. (59) In conformity to this decree, commissioners were appointed by each of the parties to carry it into effect, and further difficulties soon arising as to the circle, the subject of difference was referred to the chancellor under a general power reserved by him in the decree, to adjust any difficulties which might arise in its execution. It was contended by the Maryland comProceedings of the commission: missioners, that the radius should consist of twelve miles of superficial measure: but it was decided by the chancellor, upon the reference, that these miles, as well as the fifteen miles intervening between the boundary and the city of Philadelphia, should be reckoned by horizontal measure. The commissioners had, in the meantime, proceeded to execute the other parts of the survey about which there was no invincible ers under this de cree. (59) I have before me a copy of the minutes of this decree, and also of the commission issued under it by the proprietaries of Pennsylvania, for which I am indebted to the kindness of Charles Smith, Esq. of Pennsylvania, whose learning and spirit of research are so conspicuous in his admirable edition of the laws of that State. |