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History of York County Pennsylvania From the Earliest Time to the Present online

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land lying north of Maryland on the east
bounded by Delaware River, on the west
limited as Maryland, and northward to extend
as far as plantable.* To this application ob-
jections were made by the Duke of York and
Lord Baltimore. William Penn, in his own

*Proud. Anderson's History of Commerce.



43



HISTORY OF YORK COUNTY.



account of the application, says he petitioned
the king for five degrees, when it was urged that
Lord Baltimore had but two degrees. "Upon
which the Lord Baltimore, turning his head
to me, at whose chair I stood, said, 'Mr.
Penn, will not three degrees serve your
turn ?' I answered, 'I submit both the when
and how to the honorable waMen".

The charter of Charles II to William Penn,
Proprietary and Governor of the province of
Pennsylvania, is dated at Westminster, the
fourth day of March, 1681, in the thirty-
third year of that monarch. The land granted
to him is described as follows: "All that tract
or parcel of land in America, with the islands
therein contained, as the same is bounded on
the east by the Delawai'e River from twelve
miles distance northward of Newcastletown.
unto the three and fortieth degree of north-
ern latitude, if the said river doth extend so
far northward, but if the said river shall not
extend so far northward, then by the said
river, so far as it doth extend, and from the
head of the said river, the eastern bounds are
to be determined by a meridian line, to be
drawn from the head of said river, unto the
said forty-third degree. The said land to
extend westward five degi'ees in longitude, to
be computed from the said eastern bounds
and the said lands to be bounded on the
north by the beginning of the three and for-
tieth degree of northern latitude, and on the
south by a circle, drawn at twelve miles
distance from Newcastle, northward and west-
ward, unto the beginning of the fortieth
degree of northern latitude and then by a
straight line westward to the limits of the
longitude above mentioned."*

Newcastle was a town that had been set-
tled by the Dutch, and called Nueue Amstel,
and changed to Newcastle by- the Duke of
York, being the place now of that name, and
situate within the fortieth degree of latitude.
The land bordering on the Delaware Piiver and
Bay, settled by the Dutch and granted to the
Duke of York, comprises what is now the
State of Delaware. This land William Penn
obtained of the Duke of York, by deed of re-
lease, dated the '21st day of August, 16S2.
And by deeds of feoffment, dated the 24th
of the same month, he procured from the
Duke all his right, title and interest in the
land, after known as the three lower counties
on the Delaware, extending from the south
boundary of the province of Pennsylvania,
and situate oo the western side of Delaware
River and Bay, to Cape Henlopen. The first
deed was for the town of Newcastle and a
district of twelve miles around it as far as the



Delaware River. In the second was compre-
hended that tract of land from twelve miles |
south of Newcastle to Cape Henlopen.*

Proud, in his history of Pennsylvaniai ;
says: "By the first section of the charter,
the extent and boundary of the province are
expressed in such plain terms that it might
reasonably be supposed they could not well or;
easily be misunderstood; three degrees of lafc-;
itude included and bounded between the be-
ginning of the fortieth and the beginning of
forty-third degree of north latitude, equal to
about two hundred and eight English statute
miles, north and south, with five degrees of
longitude westward from Delaware River,!
which, in the parallel of forty-one degrees, I
are equal to nearly two hundred and sixty-five;
miles east and west, are as clearly and mani- ;
festly expressed to be granted to the proprie- '
tary of Pennsylvania as words can do it; and
we are otherwise suiBciently certified that the
same space or quantity of land was intended'
by the king to be included in the said grant, ,
yet the dispute between the proprietaries of i
Maryland and Pennsylvania, on this point, i
was afterwards remarkable and of many'
years' continuance, occasioned by each of the
respective proprietaries claiming to himself
the whole space or extent of land contained
in the fortieth degree of latitude, which was ,
the north boundary of Maryland by patent
of that province, and which though prior to i
that of Pennsylvania, sjDecifics or assigns no '
particular part of the said degree for the
boundary as the Pennsylvania grant doth,
which space or degree, containing nearly
seventy English miles in breadth, north and -
south, and in length westward, so far as Ma
ryland extends, was no small matter to occa-
sion a dispute. But notwithstanding the
clearness of the terms by which the boundary
between the said provinces is expressed in'
their respective charters, as above mentioned,
yet this dispute was at length, in the year
1732, finally settled chiefly in favor of Mary-'
land by fixing the said boundary between the'
two provinces only fifteen miles due south.
of the most southerly part of Philadelphia,
or in the parallel of thirty-nine degrees, for-
ty-four minutes, nearly, instead of 39 degrees,
or at the beginning of the fortieth degree, as
mentioned and intended by charter, which
renders the real extent of Pennsylvania
north and Bcnth only about 155 miles,
instead of 208, and makes the square miles
in the province about 41,000, and the num-
ber of acres 26,288,000, or near twenty-six
millions." When William Penn visited the
province, in 1682, he had an interview with



EUKOPEAX TITLE.



Lord Baltimore in regard to the matter, in
which he presented a letter from the king,
that Lord Baltimore should measure his de-
grees at sixty miles to a degree, his lordship
said that the king was mistaken, and that the
letter could not avoid his patent. William
Perm says that the proprietor of Maryland
treated him with great civility, but in all of |
their interviews he could never get him to ar-
range definitely their respective bound-
aries. *

James, Duke of York, succeeded to the
throne on the death of his brother, Charles, in
168-i. A petition of Lord Baltimore to the late
king had been referred to the Committee of
Trade and Plantations, and the Committee
after many hearings on behalf of both parties,
made their report to King James II, and he,
in November, 1685, by advice of the council,
ordered a division of the land between the
Delaware and Chesapeake Bays, from the lat-
itude of Cape Henlopen to the south bound-
ary of Pennsylvania, into two equal parts,
the Delaware side to be the king's, and the
Chesapeake side to be Lord Baltimore's, on
the ground that the lands granted by the pat-
ent of Lord Baltimore were inhabited only
by savages, and the part in dispute was in-
habited and planted by Christians before the
date of the patent. This dividing line termi-
nated on the north at a parallel of about fif-
teen miles due south of Philadelphia, touch-
ing the arc of a circle drawn at twelve miles
distant from Newcastle to the river Delaware.
James II, by the revolution of 1688, lost his
throne and William and Mary succeeded.
During this period of revolution, William
Penn was under a cloud of suspicion, having
been charged with being a Jesuit in disguise.
It resulted in bis being deprived of the gov-
ernment of his province, b}' William and
Mary, which was placed under the control of
Benjamin Fletcher, Governor of New York.
The affairs of the province went on much as
usual, William Markham, the first agent of
William Penn, having been appointed dep-
uty. In 1693 the government was restored to
him. The same fate overtook the rival pro-
prietary. Cecil Calvert died in 1675, when
Charles became proprietor, and in 1691 the
king took the government in his own hands
until 1715, when the province was restored to
the heir, then a Protestant. f

It was at the time of William Penn's sec-
ond visit to the provintTe, and after his resto-
ration to the government of it in 1693, that
the purchase through Gov. Dougan, of
New York, was effected from the Indians.

•Hildreth.

tHist. of Maryland.



This was done in 1696. After the proprieta-
ry's return home, the treachery of a trusted
friend of his own sect threw him into finan-
cial embarrassments, occasioned his impris-
onment and the rest of his life was a series
of trials and sufferings, mental and physical,
until his death, in 1718. His eldest sou, by
his first wife, died a year or two aftei' his
father, leaving a son, Springet Penn. This
grandson was the heir at law. The grand-
father, however, had made a will by which
the government of the province was devised
in trust to dispose of to the crown or other-
wise. The soil, rents or other profits of
Pennsylvania he bequeathed to trustees, to
lay out 40,000 acres for Guli Springe t's
descendants (his first wife's family), and
to sell as much land as would pay of the
whole of his debts, and then divide the re-
mainder among the children of his second
wife, with a pension to his widow out of the
profits, making his wife sole executrix. The
rights of the devisees were disputed and a
tedious suit in the Exchequer Court resulted.
He had made his will six years before his
death, and after it was made, he had agreed
to sell the province to the crown and had re-
ceived a part of the money. Before the
making of his will' he had mortgaged the
province to secure some borrowed money,
with power to sell. This mortgage was un-
satisfied at the time of his death.

It will be remembered that, at this time.
(1723) the intention of Gov. Calvert, communi-
cated to Gov. Keith, was to take an observation
on the west side of the Susquehanna to as-
certain the fortieth degree of northerly lati-
tude from the equinoctial. Thus commenced
the troubles regarding the boundary line
under the claim of Lord Baltimore to the
lands west of the Susquehanna, and which,
if sustained, to the fortieth cfegree of lati-
tude, would have placed the territory we now
occupy in the State of Maryland. It will be
remembered, too, that Gov. Keith, in his
letter to Gov. Calvert, objects to the ex-
tension of the northern boundary of Mary-
land beyond the Octararoe line, established
above forty years before. With regard to
this, Gov. Gordon made subsequently the
following statement; "King Charles the
First, granted to Lord Baltimore the province
of Maryland, extending northward to the
fortieth degree of northern latitude, in the
manner expressed in his patent, at a time
when the true latitude of, those parts was
not well understood, bl^t it can be incontest-
ably made to appear that the grantee him-
self claimed by hie grant no higher than the
head of Chesapeake Bay. In the year 1680,



44



HISTORY OF YORK COUNTY



Charles II granted to Mr. Penn, the province
of Pensylvania. bounded southwai-d by a cir-
cle of twelve miles round Newcastle and to
the westward of that circle by the same
fortieth degree. Mr. Penn, coming over in
1682 with great numbers of people to settle
this province, the then Lord Baltimore, eon
to the first grantee, being at the same
time in Maryland, and willing to fix his
northern boundary, came up not long after,
in person, to the mouth of the Oetoraroe
Creek, on Susquehanna, causing Col. Talbot
to begin there and run a line from thence east-
ward to Delaware; after this was done he, in
1083, sent the same gentleman, Col. Talbot, ^
at two different times, with two several com-
missioners to this government, to demand
the possession of all the lands lying on tlie
west side of the Delaware to the southward
of that line, leaving both times authentic
copies of his commissions, and no further
settlement being then made, from that time
the mouth of Oetoraroe was reputed by the
inhabitants of those parts on both sides to
give the northern limits of the one and
the southern limits of the other province."*
The Maryland encroachments, as they were
called by the Pennsylvanians, were founded
upon this claim of Lord Baltimore to the ter-
ritory wherein he authorized settlements to
be made. It does not appear that there were
any difficulties between the two provinces,
from the city of Philadelphia to the Susque-
hanna River. But west of the Susquehanna
River Lord Baltimore issued his warrants
under his claims to the fortieth parallel of
latitude, even pending the litigation between
him and the Penns, evidently suimising that
the right to it under his grant might be ulti- '
mately acknowledged.

On the 17th day of February, 1724, there was
an agreement made between the right honor-
able Charles, Lord Baltimore, proprietor of
Maryland, and Hannah Penn, widow and exec-
utrix of William Penn, Esq., late proprietor
of Pennsylvania, and Joshua Gee and Henry
Gouldney, of London, in behalf of them-
selves and the rest of the mortgagees of the
province of Pennsylvania, as follows:
"Whereas there are disputes depending be-
tween the respective proprietors of the pro-
vinces of Maryland and Pennsylvania touch-
ing the limits or boundaries of the said pro-
vinces where they are contiguous to each
other. And whereas both parties are at this
time sincerely inclined to enter into a treaty
in order te take such methods as may be ad
visable for the final determining of the said
controversy, by agreeing upon such lines or {



other marks of distinction to be settled as
may remain for a perpetual boundary be-
tween the two provinces; it is therefore mu-
tually agreed .... That, avoiding all man-
ner of contentions or differences between the
inhabitants of the said provinces, no person
or persons shall be disturbed or molested in
their possessions on either side, nor any
lands be surveyed, taken up or granted in
either of the said provinces near the boun-
daries which have been claimed or pretended
to on either side. This agreement to con-
tinue for the space of eighteen months from
the date hereof, in which time it is hoped
the boundaries will be determined and set-
tled. And it is mutually agreed on by the
said parties, that proclamations be issued out
in the said provinces signifying this agree-
ment, for the better quieting of the people."*
There was litigation as to the proprietorship,
and after some years a compromise was
effected in the family, and the government of i
the province fell to John, Thomas and Rich- j
ard Penn, the surviving sons of the second "
wife." By a letter of August 17, 1727.
from John and Thomas Penn to the trustees, ,i
it was announced that the long depending :
dispute was at last determined with respect '
to the propriety of the province. The court |
established the will, but in relation to the i
powers of government the Barons would not [
take upon them to decide anything until the j
Attorney -General should have orders to answer i
whether his Majesty would be pleased to in- i
sist upon the performance of the contract
made with the late queen, or quit it; but j
this they had not yet, by all the solicitation i
they could make, been able to obtain, but
hoped to get it against the next term. How- I
ever, they were now authorized to execute (
the trust, j In 1732, after the mortgage debt,
and all other claims had been settled, Thomas
Penn arrived in this country, and for himself
and brothers took possession of the province.
In that same year, on r,he 10th of May, ar-
ticles of agreement were made between
Charles, Lord Baltimore, proprietary of
Maryland, and John, Thomas and Richard
Penn, proprietaries of Pennsylvania. Among
other things it provided, "that in two
calendar months from that date, each party
should appoint Commissioners, not more than
seven, whereof three or more of each side
may act, or mark out the boundaries afore-
said, to begin, at the furthest, sometime in
October, 1732, and to be completed on or be-
fore December 25, 1733, and when so done
a plan thereof shall be signed, sealed and



EUEOPEAN TITLE.



45



delivered by the Commissioners and their
principals, and shall be entered in all the
public offices in the several provinces and
counties, and to recommend to the respective
Legislatures to pass an act for perambulating
these boundaries, at least once in three years.
The party defaulting, to pay the other party
on demand 6,000 pounds sterling."

On the 12th of May, John, Thomas and
Richard Penn signed a commission directed
to Patrick Gordon, Isaac Norris, Samuel
Preston, James Logan and Andrew Hamilton,
esquires and to James Steel and Robert
Charles, gentlemen, appointing them or any
three or more of them Commissioners with
full power, on the part of the said proprie-
taries, for the actual running, marking and
laying out the boundary lines, between both
the province and territories of Pennsylvania
and Maryland, according to the articles of
agreement. And an instrument of the same
tenor and date was executed by Lord Balti-
i more, directed to Samuel Ogle, Charles
Calvert, Philemon Lloyd, Michael Howard,
Richard Bennet, Benjamin Tasker, and
Matthew Tilghman Ward, Esquires, appoint-
ing them, or any sis, five, four or three of
j them. Commissioners, for the same purposes
on the part of the said Charles, Lord Balti-
[ more. At a meeting of the Provincial Coun-
'cil on the 31st of September, 1732, Thomas
I Penn, proprietary, being present. Gov.
Gordon acquainted the Board that the differ-
[ ences between our honorable proprietary
I family and the Lord Baltimore, touching the
I disputed boundaries of their respective gov-
ernments, being now happily accommodated,
an agreement had been concluded between
them, which, by the direction of the pro-
prietor, he was now to lay before the Board.
That it had been as yet only communicated
; to the Commissioners, and those gentlemen
were in a few days to set out to meet Mr.
Ogle, Governor of Maryland, and those named
i on the part of that government. The mem-
I bers of the Council expressed their satis-
j faction and pleasure .that the differences and
1 uneasinesses, which had formerly so much
[disquieted the government, were in so fair
I a way of being settled, and as execution of
the agreement was entrusted to persons of
such good abilities it was to be hoped the
! same would be speedily brought to a happy
! issue;* and on the 3d of October, 1732, the
Governor notified them that pursuant to an
appointment made between the Lieutenant-
Governor of Maryland and himself for the
I meeting of the Commissioners, he was to set
out to-morrow for Newtown in Maryland.

*1II Col. Kec. 464.



The Commissioners respectively appeared at
the time and place fixed, but upon some
differences of opinion, the boundaries were
not made in the time limited. The failure
was on the side of Lord Baltimore, who
alleged, in respect of the agreement, that he
had been deceived in fixing Cape Henlopen
twenty-five miles southwesterly of the western
cape of Delaware Bay, whereas Cape Hen-
lopen is the western cape itself. The Penns
affirmed that the western cape is Cape Cor-
nelius, and Cape Henlopen some miles south-
wardly of it, according to the Dutch maps
and descriptions published, about the time
when Lord Baltimore obtained his grant.
The chart by which the boundaries were given
named the cape opposite to Cape May, at the
mouth of Delaware Bay, Cape Cornelius, and
the point at Fenwick's Island, Cape Henlopen.
The charts now transpose that order. Lord
Baltimore endeavored to avoid this agreement
to settle the boundaries, and the time having
expired for completing the articles, Charles,
Lord Baltimore, petitioned the King in Coun-
cil for relief on the 9th of August, 1734,
which was opposed by a counter petition by
John, Thomas and Richard Penn on the 9th
of December, 1734, and upon references and
report thereon, the King on the 16th of May,
1735, ordered the consideration of the report
to be adjourned, that the Messrs. Penn might
proceed in equity. On the 21st of June, 1735,
they exhibited their bill in the court of
Chancery of Great Britain against Lord
Baltimore, praying that the said articles may
be deemed to subsist and be carried into exe-
cution, and that any doubts arisen may be
cleared by the decree. After tedious delays
they obtained a decree on the 15th of May,
1750, for the specific performance of the
agreement.*

The opinion of Lord Hardwicke, the great-
est of the British Chancellors, puts the
'■ merits of the controversy in a clear light.
; "Lord Chancellor. — I directed this cause to
': stand over for judgment, not so much from
any doubt of what was the justice of the
case, as by reason of the nature of it, the
great consequence and importance, and the
great labor and ability of the argument on
both sides; it being for the determination of
the right and boundaries of two great prov-
incial governments and three counties; of a
nature worthy the judicature of a Roman
Senate rather than of a single judge — and
my consolation is, that if I should err in my
judgment, there is a judicature equal in
' dignity to a Roman Senate that will correct
j it. . . . The settling and fixing these

I *Penns vs. Lord Baltimore, I Vesey's Reports, 44i.



46



HISTORY OF YORK COUNTY.



boundaries in peace, to prevent the dis-
order and mischief which in remote countries,
distant from the seat of government, are
most likely to happen, and most mischiev-
ous. . . . This has subsisted above
seventy years. . . . Though nothing
valuable is given on the face of articles as a
consideration, the settling boundaries, and
peace, and quiet, is a mutual consideration
on each side, and in all cases make a con-
sideration to support a suit ia this court for
performance of the agreement for settling
the boundaries. ... It appears that the
agreement was originally proposed by the
defendant himself ; he himself produced
the plan or map afterward annexed to the
articles; he himself reduced the heads of it
into writing, and was very well assisted in
making it; and farther that there was a great
length of time taken for consideration and
reducing it to form. . . . The defendant
and his ancestors were conversant in this
dispute about fifty years before this agree-
ment was entered into. . . . It is insisted
the whole fortieth degree of north latitude is
included; and if so that it is not to be lim-
ited by any recital in the preamble. There
is great foundation to say, the comiDutations
of latitude at the time of the grant vary
miich from what they are at present, and that
they were set much lower anciently than
what they are now. ... In these countries
it has been always taken that that European
country which has just set up marks of pos-
session, has gained the right though not
formed into a regular colony. . . . Next
consider the dispute on Penn's charter, which
grants to him all that tract of land in
America from twelve miles distant from New-
castle to the 43rd degree of north latitude.
.... Upon the charter it is clear by the
proof that the true situation of Cape Hen-
lopen is as it is marked in the plan, and not
where Cape Cornelius is, as the defendant
insists; which would leave out a great part of
what was intended to be included in the
grant, and there is a strong evidence of seiz-
ure and possession by Penn, of that spot of
Cape Henlopen, and all acts of ownership.
But the result of all the evidence, taking it in
the most favorable light for the defendant,
amounts to make the boundaries of these
countries and rights of the parties doubtful.
Senex, who was a good geographer, says that
the degi'ees of latitude cannot be computed
with the exactness of two or three miles, and
another geographer says that with the best
instrument it is impossible to fix the degrees
of latitude without the uncertainty of seven-
teen miles, which is near the whole extent



the capes The objection of

uncertainty arises principally on the question
concerning the circle of twelve miles to be
drawn about Newcastle. It was insisted on
in the answer and greatly relied on in Ame-
rica, but is the clearest part of the cause. As
to the centre it is said that Newcastle is a
long town, and therefore it not being fixed
by the articles, it is impossible that the
court can decree it; but there is no difficulty
in it; the centre of a circle must be a mathe-
matical point (otherwise it is indefinite) and
no town can be so. I take all these sorts of ,
expressions and such agreements to imply
a negative ; to be a circle at such a dis- i
tance from Newcastle, and in no part to be '
further. Then it must be no further dis- j
tant from any part of Newcastle. Thus,
to fix a center, the middle of New-



Online LibraryJohn GibsonHistory of York County Pennsylvania From the Earliest Time to the Present → online text (page 9 of 218)