■iiili ililp'" HI 111 ■!' iiiiiii: iiiiil'f iiiiii =iiiil!iiii|ii!ili!!l 7hE pT/KTi: Of THE QuEgTIOp^ -OF- %4 «>'?f' -BETWEEN- NEW JERSEY AND DELAWARE. Q,^^^^ ©■, l©*F©»SQs3 TRENTON, N. J.: Wm. S. Sharp's Printing and Publishing House. 1873. The State of the Question of Jurisdiction and Boundary between New Jersey and Delaware, A. D. 1873. The dispute arises out of tlie arrest, in Delaware river, of twenty-two Ilew Jersey fishermen by Delaware authorities, in May, 1872, for fisliing without taking out license from and pay- ing license fees to Delaware. The fees demanded of Jerseymen are of greater amount than those exacted of citizens of Delaware. Delaware has never claimed title to any portion of Delaware hay beyond the middle thereof. ( Clayton's argument before John Sergeant, in Pea Patch Arbitration, Senate Ex. Doc, A. D. 1848, No. 21, p. 193; Bayard's argument, p. 130, 140.) Delaware has never claimed title to any portion of the river beyond the middle, except that part within the supposed twelve- mile circle. {Bayard's argument, p. 140.) In the case before Mr. Sergeant, in 1848, the right oi fisliing in the river by Jerseymen was not denied. It was expressly distinguished from right to soil. {Bayard's argument, pp. 142, 146; Clayton's argument, p)p. 197, 198, 200; Mr. Sergeant's opinion, p. 244.) As to title to soil of river other than by a valid grant, see {Bayard's argument, p. 144.) JURISDICTION AND BOUNDARY Both New Jersey and Delaware omist claim under crown of England. I. The New Jersey documentary title commences March 12th, 1663-4, by the grant of Charles II. to Duke of York. II. It commenced a second time in 1674 by a new grant of Charles II. to the Duke. The title of the Duke — who might still be supposed to retain the governmental power for want of express words conveying it in his first grant of June 24th, 1664, to Berkeley and Carteret — was considered defeated by the Dutch conquest, and re-vestcd in Charles II. by a re-conquest. III. The New Jersey title, however, has a third commence- ment in the year 1683, by virtue of the same supposed letters jjatent, which are the Mdiole basis of the Delaware title — being the alleged grant of Charles II. to the Duke of the supposed twelve-mile circle — which enured to the benefit of New Jersey against the Duke by the estoppel produced by his grant to Byl- linge, in August, 1680, three years before his grant from the King, and two years before the Duke's grant to Penn of the supposed twelve-mile circle. IV. The New Jersey title may also be considered as com- mencing for the fourth time, and with much broader extent than ever before, by the unity of possession in the crown of New Jersey proper, (if New Jersey did not already include the Dela- ware river,) and of the adjacent territory — the Delaware river ; which unity took place in 1702, on the surrender of the pro- prietary government. The royal Governors were not only Governoi's of New Jersey, but of territories thereon depending in America, and Vice Admiral of the same. Sec Lcaminr/ & Spicer, p. 8, /or Governor Hunter's title ; also, pp. 635, 655. A^. Title by Revolution of 1776, supposing neither New Jersey nor Delaware to have had title to the river till then. The following is a statement of the New Jersey titles : BETWEEX NEW JERSEY AND DEL-VWAKE. 5 I. Tlie grant of Cliarles II., uhieli was Jlarch 12tli, 1663-4, siter™!"' was for " All the laud from the west side of Connecticut to the cast side of Delaware bay, together with the rivers, harborit, * * fishings * * and all other royalties * * to the said several lands belonging and appertaining, with their and eveiy of their appurtenances," and "full and absolute power and authority to correct, jiunish, pardon, govern and rule all such subjects, &c., * * according to such laws, &c., as by him shall be established, as well in cases and matters * * crimi- ■ nal, civil, marine and others," reserving appeals from judgments to the King. The Duke was to ordain and confirm laws, estab- lish forms of government, ; and put in execution the laws he should make, not only ivithin the jjrecincts of said territories, but also upon the seas in going to and coming from the same." His Governors " to resist as well by sea as land, all invaders." The Duke, June 24th, 1664, three months and twelve days Leamiug & r* 1 -r-f J 1*11 11 • ' 1 Spicer, p. 8. alter the K-ing s grant to him ; by lease and release — reciting the grant of the King as of " All the land from the west side of Connecticut nver to the east side of Delaware bay, together with the rivers, harbors, * * fishings * * and all other royalties * * appertaining," and as made " with divers other grants" — granted to Berkeley and Carteret in fee, "All that tract of land adjacent to New England, &c., bounded on the east, part by the main sea, part by Hudson's river, and hath on the M'cst Delaware bay or river, and extendeth southward to the main ocean as far as Cape May, at the month of Delaware bay, and to the northward as far as the northernmost branch of the said bay or river of Delaware, &c. ; and also all rivers, * * fishings * * and all other royalties * * appertaining, with their and every of their appurteuances, in as full and ample a manner as the same is granted to the Duke." A 7-cnt was reserved. 1664-5, February 10th. Berkeley and Cartaret agreed \\{i\\ Loaming & settlers that the Assembly should have power to create and ap- ii'.""^'^''' '' "' point such and so many ports, harbors, creeks and other places for the convenient lading and unlading of goods out of ships, p. 19. 6 JURISDICTION AND BOUNDARY with such jurisdiction, &c., as to sucli ports, &c., as they shall judge, &c. The Governor to suppress rebellions by sea or land. They grant land for wharves, kays and liarbors, and by the next to the last item, it is stipulated — " That the inhabitants of the said Province have free passage through or by any seas, bounds, creeks, rivers or rivulets, &c., in the Province, through or by which they must necessarily pass to come froni tlic main ocean to any part of the Province aforesaid." II. teaming & 1674, Juue 29th. Charles II. makes a new grant to the Duke of York, The Dutch had in meantime conquered New Jersey, and it had been re-conquered by England, and doubt was expressed whether the crown was not thereby re-vested with the title to the government and jn'operty. This was the reason of the re-grant. The new grant was by the same words as that of 1G63-4. Learning & 167G-7, Jlarch 3. The proprietors of West Jersey {Fenn 40D, 390. ' being one,) though they had not yet received a re-grant of West Jersey from the Duke, " agreed and granted convenient portions of land for wharves, kay.«, harbors, * * and also that tlie in- BETWEEN NEW JERSEY AND DELAWAEE. 7 habitants * * Lave free pass through or by any seas, bound, creeks, rivers, rivulets in the said Province through or by which they must necessarily pass to come from tlie main ocean to any part of the Province." "That all the inhabitants within the said Province of West Jersey have the liberty offisJiing in Dela- ware river." {Chapter F., p. 390.) Whatever right Penn afterwards acquired in the Delaware river from the crown, was subject to this grant in equity, though he might not have had the title to the river Avhen he, as one of the proprietors of West Jersey, made the above agreement of 1676-7. It would seem that he is estopped to claim a right to exclude Jerseymen from fishing in Delaware. 1680, July 28th. Xo grant having yd been made by the crown of England to the west of New Jersey ; and the Duke of York's Governors in New York, without any authority, having I'cpeatedly interfered beyond the Duke's own jurisdiction by levying customs on the Delaware rivei' — Penn, as a AYest Jersey ''''"j.^e^^oJ™''''' proprietor, drew up an argument to show that the Duke's own Muiford's New , , ^ .T= for navagation, free trade, fishing or otherwise." And p. 418, "all and every such the same powers, authori- ties, jurisdictions, govei'nments, and other matters," &c., which were granted to the Duke by the King. The powers of government are not given to tlie same parties to whom the land and the free use of the rivers are granted. Byllinge alone took the power of government; Penn and others the; land and the free use of the river for all inu-poses. Though the Duke had no title to the Delaware river then, he ought not to be permitted in equity to assert that he had no title then, but to be held a trustee of Mhat he afterwards received. ■ There is rent reserved. If Duke barred, so is Penn, his grantee, of supposed twelve- mile circle. BETWEEN NEW JERSEY AXD DELAWARE. \) 1681— j'. e., February 28th, 1680-1— King Charles II. grants Lusas-ped from taking a grant of the fishing right, and a trustee of it if he took it, but his grantor was bound by a broader equity. His grantor had conveyed the use of the river in 1680, /or all jnirjioses, to Penn and othei's, as West Jei'sey proprietors. His grantor being estopped or trustee, Penn was, to the same extent, especially as he had notice of what his grantor had conveyed. The King's supposed grant to tlie Duke of York for the sup- posed twelve-mile circle, is dated the thirty-fifth year of the King, March 22d, 1682-3, which was nearly seven months offer the Duke's feoffment to Penn, which bore date August 24th, 1682. On June lltli, 1683, nearly a year after tlie feoffment of the pennsjivania Duke to Penu, and nearly three mouths after the King's sup- uiil^vv^ls'^i". posed grant to the Duke, Penn appointed Commissioners to treat with West Jersey proprietors. His appointment of Com- missioners bears date June 11th, 1683; his letter of instructions to Commissioners the same date, and his letter to West Jersey Council same date. There is yet another letter of June 20th, 1683, to West Jersey Council. In the commission he speaks of the trade and islands of Pennsylvania and Ihe territories, [/. c, Delaware.] In his in- 12 JURISDICTION AND BOUNDARY structions he says his Commissiouers must " insist upon his title to the river, soil, and islands thereof, according to grant, and if they [/. e., West Jersey,] shall deliver up ye island of Matini- cuui and Sepassing, he will return one-half of Matinicuni before ye to^yn." See also Learning & Spicer, p. 455. As for Sepassing island, he -would not admit any parley about his title. Where Sepassing was I have not ascertained. He adds, " They [West Jersey proprietors] are bounded west- ward by the river Delaware, y" they cannot go beyond low-water mark for land." New Jersey proprietors " have ye liberty of ye river, but yet no propriety." lu his first letter to the proprietors he desires " a final estab- lishment of a right understanding between us concerning ye river and islands." In second letter, June 20th, he says that " you [West Jersey Council] are pleased to say y' as to the river and islands ye are M'illing at ye present to be passive, taking it not projier for you to manage, and yet y' Commissioners press me about ye right to river." teaming A lu Sejitcmbcr, 1683, it was resolved by the West Jersey As- 4sor48i.''''' ' sembly that Penu be treated with in reference to the rights of West Jersey to or in the Delaware river, and Commissioners were appointed. IV. The fourth commencement of the New Jersey title is at the surrender of the proprietary government in 1702. This implies some difference in the nature of the title of the crown to the Delaware river, and to the land within the three counties. This may well be, because of the different nature of river and land. Though the title of Penn to the land may stand upon posses- sion, the river is incapable of possession. Besides, Penn, in 1676-7, had agreed to grant land for v.-harves, kays and harbors, and that the inhabitants should have free pass through seas, rivers, &c., in the Province through or by which they must pass to come from the main ocean to any BETWEEN NEAV JEESEY AND DELAWARE. 13 part of the Province, and that they should have tlic liberty of fishing in the Delaware. He had excepted, as one of the "West Jersey proprietors, the grant of August, 1680, of the free use of all rivers leading to the Province for all purposes. These agreements and grants greatly modified Penn's title, if any, to the river, and yet had no such effect upon the land within the three counties. When, therefore, the crown became possessed of West Jersc}', in 1702, all these rights in the river of Jerseymen must have passed to the crown as trustee of the people. In 1683, in his treaty with West Jersey, he admits the Ubcrtij in the river of West Jersey. The Courts of Admiralty of the crown, not dependent on Penn's government at all, exercised great authority on Delaware river. See from A. D. 1688 on. Lord Gornbury, in 1703, exercised jurisdiction over Delaware river. 2 Pennsylvania Colonial Records, 99, 100, 421, 422 ; Documentory History of New York, Vol. V.,p. 17, [quarto.) Governor Belcher also, in 1747, exercised juristlction. Pcmisylvania Colonicd Eccords, 111. 14 JUEISDICTION AND BOUNDARY V. Haniiiey'sLes- Revolutlou of 1776 gavc title to New Jersey to middle of see V, Anthony, ^ ^ ^ ^ 380^'"''""" s"S' Delaware river, as neither Delaware nor New Jersey previously had title. We may assume that New Jersey had none under this fifth head. Did Delaware have any title prior to Revolution? Her claim starts under the feofflncnt of the Duke of York, of August 24th, 1682. This feoffment is partially set out in Appendix to 1 Wallace^s a a Ii.,p. 31 ; also, in Ex. Doc, No. 21, A. D. 1848, Senate, 2>. 11. It is wholly set out in Vol. I., Delaware Laws p. 1 of Appen- dix, edited hy Booth, A. D. 1797; also, in Vol. I., Pennsylvania Archives, p. 52. I. The Duke's grant to Penn is no foundation for the Dcla- ■\vare claim. The claim to the river within a circle of twelve miles seems really absurd, when the language of this grant is fairly con- sidered. It must be construed, no doul)t, as intending to pass some part of the river Delaware. It grants — 1st. "All that town of Newcastle, [otherwise called Dela- ware,] and 2d. "All that tract of laud lying within the compass or circle of twelve miles about the same, situate, lying and being upon the river Delaware." 3d. " All islands in the river Delaware, and the said river Delaware and soil thereof lying north of the southermost part of said circle of twelve miles about said town." It is plain that there are three distinct grants here: 1st. Of Newcastle. 2d. What is in the circle outside of the town " upon the river," excluding Newcastle itself. 3d. The islands and the river lying north of a part of a line. It is equally plain that there was no intention by the second grant to convey any loMd, that did not lie upon the river and BETWEEN NEW JEBSEY AND DELAWARE. 15 about the town. The circle was not to be a boundary toward the east; the m'ei' was to be the boundary line there. Proud, in his History of Pennsylvania, Vol. I., p. 201, says the deed " was for a district of twelve miles round Newcastle as far as the Delaware river." This is manifest from the following considerations : 1. If the most easterly part of a complete circle around New- castle was to be the boundary towards the east, the second clause of the dcscrijition Avould take in the town of Salem, in New Jersey, of which there is no pretence that there was the slightest intention. Penu's counsel in Breviat insist that New Jersey is not contiguous to three lower counties — /. e., Delaware river be- t^^•een. Breviat, 82, 107. Penn knew all about West Jersey, having an interest there aud being a proprietor, and himself owning lands in Salem. Penn and Logan correspondence, Vol. I., jj. 347, published A. D. 1870. 2. The land described in this second clause must not merely lie within the circle, but " tqjon the river." If the words "upon the river" do not limit the extent of the land described in the second clause towards the cast, it is plain that the intention of the description was to include Salem ; but this intention, it is admitted, did not exist. It is the intention we are looking for. If Penn thought it ■would take in Salem, he would not have asked for a grant in such terms, for it would be useless. He knew the Duke had twuce conveyed Salem — once to Penn himself, as a ^Vest Jersey proprietor. The language of the graut should be construed to have such meaning as to exclude Salem. We should not dismiss this ex- traordinary effect of construing the description as calling for a complete circle by saying — as the Duke had no title to Salem and Penn knew it, the grant is void as to that. The eifect of such a fact upon the deed is to make it plain, that the descrip- tion should be restrained so as to avoid the imputation of such absurd conduct on the part both of grantor and gi'antee. 16 JURISDICTION AND BOUNDAHY The ATords " upon the river," in the second clause, will restrain the description and prevent Salem being within in it. 3. Laud is called for, anel land is distinguished in the description itself from the bed of the river, that being called " the soil of the river." 4. The circle should be a boundary no farther than the river; for there is a distinct grant of land or soil in the river by the ihird clause, in addition to the grant of land icifhin the circle in the second clause. If, by the word " circle," a complete circle was meant, the soil of the river would already have jiasscd by the second clause, and the third clause be without any effect what- ever. To give, under the second clause, the soil or land in the river, would deprive the ihird clause of the grant of any mean- ing whatever. And yet such must be the necessary effect of the second, if by the word circle was meant a complete circle. The third clause ought to have a significance different from the second — especially as the second clause speaks of " land " — land " ti2)07i the river," not land in the river, and the third clause of " the soil of the river." The soil of the river in the third clause " lay north of the southernmost part or bound of the circle." The " land " In the second clause lay " upon the river." If, by the word " circle " in the second clause, were meant a complete circle, the natural, short and easy description of the soil of the river intended to be conveyed would be, " and the soil of the river within the said circle." Indeed, there would have been no words more than those in the second clause ; but if, by the word " circle," an incomplete cli'cle was intended, the peculiar circumlocution was necessary to pass any part of the river. The truth Is, the words suggested were not used, because the " circle " before described was not a complete circle. If a complete cli-cle was meant to be described, the description of the land to be conveyed would have ended with a description of the figure, and there would have been no call for the "river." These two calls show the circle was not to be complete. Not being complete, there was a necessity for another clause to in- clude a part of the river ; and the third clause became necessary BETWEEX XEAV JERSEY AXD DELAAVARE. 17 to describe any part of the river wliicli it was inteiidecl to pass. AMieu we consider that the land within the compass or circle of twelve miles about the town, meant only land within a part of a circle; and that there could be no "compass" or "circle" of the land " upon the river" beyond the river, nor within it,— the circle described as a boundary in the second clause could not be said to have a southernmost jmrt anywhere in the river. All its parts, as first described, were the boundary of land on the west side of the river — "upon the river." Yet the southernmost part of the circle on the land might have islands in the Delaware river, and the river Delaware^ and the soil thereof — lying north of it. Draw a line due north from the west side of the river, where the southernmost part of the circle touches it there ; and whatever portion of the river lies between the southernmost part of the circle, and this line drawn due north, is granted. It is not necessary that this Jine should be so drawn that it will join the circle again, for the west boundary of the soil of the river must of course be the river bank ; and the north bound must also be the river bank, or there is no northern boundary. A line drawn due north would include a i)art of the river, and thus the soil of the river granted would be bounded on all sides. No such difficulty results from a line drawn due north, as re- siilts from considering the circle described to mean a complete oue ; for th'ereby the river is granted twice, and nearly as much land in the State of New Jersey as on the west side of the Dela- ware. But, by considering the circle incomplete, and a boundary of the land in the second clause described, only where the river was not ; and a due north line, the eastern boundary of the de- scription in the third clause, — no part of Salem, New Jersey, is included, though such a due north line should cut it, for it is only the "soil of the river" which is granted in the third clause, and it is this clause which calls for the line to the north. No land not in the river could pass under such a grant as that con- tained in the third clause. Such a construction of each clause would not include in one clause, anything granted by the other. Perhaps the word "islands" may not be qualified by the words "lying north." c 18 JUEISDICTION AND BOUNDARY 5. To cousider the circle as complete, would be to pass to Penn the whole of the Delaware river throughout its course, be- tween Pennsylvania and Now Jersey. It would seem that tlie clear and iair construction of this feoff- ment was to limit tlic circle to tlie land. A circle was chosen at first, for the southern boundary of Penn's patent of Pennsylvania. The reason Mas, that the Swedish set- tlement in Delaware at and about Newcastle, might not be inter- fered with. When the Duke of York, the next year, made his feoffment, the circular boundary Mas M'cll known. Of course Penn knew it, for it was described in his patent. Even there it is called a circle ; and it is restrained to mean a circular line there, by but t^vo considerations. A complete circle is more than is necessary to describe a boundary; for it describes not merely a line or lines, but the contents; and, second, it is described there as a circle to be drawn to the northwards and westwards. Still it M'ould not be a circle, if only drawn to the northwards and west- wards. No complete circle was meant in either patent or feoffment — it was circular line in both cases. 1 Wallace c.c.R. Nothins; makes this plainer than this ; that of the multitude A,*>pendis, p. 5'.'. ~ ^ ^ ^ ' of maps from 1G82 to this time, not one ever has had a complete circle dra\vn upon it; that a complete circle would include what BETWEEN NEAV JERSEY AXD DEI- ;V WARE. 19 is admitted was not intended to be conveyed — Salem, &e. : that otlier words, as in the third clause, arc a mere repetition of what preceded them in the second clause, if a complete circle was meant ; that what was icithin the circle, is called for, as only " upon" the river; and this word excludes the river. So far as the Delaware claim to the river depends ujron the dcscrijdion in the ''feoffment of the Duke of York to Pcnn in 1G82, it docs not extend even to the middle of the river, but covers onlv a cove in the river. 2d. But, assume that the feoftinent fairly construed, takes in the whole of the Delaware river, the title of Delaware, it is ad- mitted, is not complete, for the Duke confessedly had no title. Delaware sets up, however, letters patent to the Duke from the King, bearing date the next year, March 22d, 1G83. The grant by the Duke to Penn, was August 24th, 1682 ; the King's patent, March 22d, 1G82-3, or seven months after the Duke enfeoffed Penn. Delaware insists that, by virtue of the feoffinent, the Duke, on being invested with the title, became estopped as against Penn ; or, became trustee for Penn. How the estoppel could work upon what the Duke did not pretend to convey — the power of government, which is the matter in question — or how he could be trustee of what Penn never could fairly make any claim to — the same power of govern- ment — will be afterwards considered. But New Jersey must formally and distinctly deny that Charles II. ever made the supposed grant of March 22d, 1G83 ; or, if he made it. New Jersey alleges it was surrendered. The crown never granted the Delaware river. The only grant alleged is this of INIarch 22d, 1G83. 20 JURISDICTION? AND EOTJNDAEY porte'to^be aftlu There is a raultitade of facts which leads to the conelusion tliat of'H'azard''8 Reg- this grant was uever made ; notwithstanding tlie production be- ™nL°p.'2'7'!"''^' fore ]Mr. Sergeant of the lyretended original of it, of a certified copy, of a sworn copy, and of a printed copy in Franklin's laws of 1754. (Sec 1 WaUa'cc C. C. R., Appmcli.r, p. 40; but bdtn; p. 8 of Ex. Doc, No. 21, Senate, A. D. 1848.^ That such a patent was sought for and drawn up, is proved by the documents which show it never passed the great seal. The history of this transaction appears to be this : It appears that Lord Baltimore, who claimed that his patent of 16oG intJuded Pennsylvania and the tliree lower counties, ap- plied to the crown to be heard as well before Penn's patent for Pennsylvania, as before the King's supposed grant to the Duke of York for the supposed twelve-mile circle. (1 Proud 202, 203, 293.) Loi'd Baltimore's resistance to the patent to the Duke for the supposed twelve-mile circle, continued for years. Charles II. died before the question whether the laud lay within Lord Bal- timore's patent or not, M'as determined. That was determined November 13th, 1685. (See the Decree of the King in Council, set out prefti/ fully in 5 Hazard's Pennsylvania Register, p. 409. See j)ost page I have seen this decree in Council in several places. It is variously stated ; but in every place it is set out as a decree that the King owned the three lower counties — i. e., Delaware. Proud sets it out jiartially, (1 Proud 293,) but he interpolates, after the judgment, that the eouuties belong to the King, these M'ords, viz. : " to King James, who granted it to W. Penn when Duke of York." The exact text of this decree should be ascertained. But all the authorities agree that it adjudged the three lower counties to belong to King James II. BETWEEN NEW JERSEY AND DELAWARE. 21 This might be true, though the grant of Charles II. to the Duke had been issued, and even had it not been issued. In 1709, however, a like decree was made in Council by Queen Anne, that the three counties belonged to Queen Anne ; and this could not have been made if there had been any grant by Charles IL to Duke of York, and a consequent estoppel against the Duke in favor of Penn. (iSec 1 Proud 294 ; 2 Haz- ard's Pennsylvania Register 202.) These decrees Avcre made by the proper authority. [Penn v. Lord Baltimore, 1 Vescy, Sen., Ch. R. 447 ; Punlop^s 3Iemoir, in Memoirs of Historical Society of Pennsylvania, Vol. I., pp. 181, 216, 217.) There is great reason to believe that Penn assumed that the grant of Charles II. to Duke of York never took effect. In a statement of Penn's title, made about 1715, to be found in 5 Hazard's Pennsyli-ania Register, pp. 409, 410, it is said : " And the King, besides his deeds of feoffment given when Duke of York, having, as far as lay on his part, granted a no/j patent, (fliough having passed all the other offices, it weis delayed at the great seal,) with ample power of government to the proprietor, William Penn, for the whole, — the title to the soil (at least) of these counties remained undisputed." Hei'e, it appears, Penn relied on a patent from James II. M'hen King, which was displayed at the great seal, as the former one also from Charles II. to the Duke, had been. Chalmers, in his history of the Revolt of the Colonies, Vol. I., p. 299, says : " During an unguai'ded moment, that able pol- itician, Penn, confessed to the Board of Trade, when pressed by these objections, that had James the Second remained two da}s longer at Whitehall, he would have obtained a grant under the great seal for the three counties on Delaware." Proud tells us, [Vol. I., p. 202, note:) "William Penn, in a letter to some of his friends in Pennsylvania, dated ' England, 10th fourth (June) month, 1691,' (at a time when there was a disagreement in these counties respecting his title,) says, ' I would also you should know I have a patent of the lower counties some 22 JURLSDICTION AND BOUNDARY years since, that when there is occasion for it, you may allcdge so, but not otherwise.' " The Provincial Assembly of 1704 complain to Peuu tluis : " And as to tlie conveniency of the union of the Province [Penn- sylvania] and lower counties, [Dela^vare,] we cannot gainsay it, if the King had granted thee the government, as the Duke had done the soil ; but to our great grief and trouble, we cannot find that thou had any such grant ; and if thou had, thou ^could not produce it, though often requested to do so." {FranMin's WorJcs, Vol. III., 2^- 125.) In 1708, the Assembly of Delaware say they canuot provide for the expenses of the government with cheerfulness, Avhen they look back to these requests in 1700 and 1701, "in relation to Pcnn's right of government over these three lower counties, to all which we could never receive a satisfactory answer." " And whereas, the raising of money for the support of Government is an act of the highest nature, and ought to be warranted by the highest authority ; therefore they believe it to be their duty, be- fore they proceed to any further business, to address your honor to lay before them the j^oic^rs of government wherewith your honor is invested." The Governor replies that it is not worth while to vindicate his authority as he is soon to have a successor, 2 Pennsylvania Colonial Records, ^yp. 424, 425, 426. Logan, the agent of Penn, in a letter to Henry Goldney, dated Philadelphia, 3d month, (then May,) 1709, to be found in 3rf vol. of FranMin's worh, j>p. 573-4-5, says : " Thy Government has consisted of two parts : the Province of Pennsylvania, and the three lower counties on Delaware. To the first, the 2>roprie- tor has a most clear and undoubted right, both for soil and gov- ernment, by the King's letters patent or royal charter ; for the latter, he has much less to shou: For the soil, he has deeds of feoffment fi.'om the Duke of York, but for the govci^ment, not so much as is necessary. After his first arrival, however, in these parts, he prevailed with the people, both of the Province and those counties, to join in one government under him, according BETWEEN NEW JERSEY AND DELAWARE. 23 to the powers of tlic King's charter, which, nevertheless, extended to the Province onli/. * * * Since [the separation of the Province and counties in 1702,] we have had two Assemblies — that of the Province, acting by a safe and indisjmted power; but that of the other counties, witliout sufficient (I doubt) to justify them. Last fall, the Assembly of those counties took occasion to inquire into their own powers, * * and have sent home an address * * to obtain powers to some person or other whom the Queen may think tit to discharge all the necessary duties of government over them. This, I doubt, will give the proprietary great trouble ; for, when the Council of Trade is fully apprized (as by this means they will be) that those counties are entirely disjoined from the Province, it is probable they may more strictly inquire into the proprietor's right of government and legislation with the people there ; and it is much to be feared that they may advise the Queen to dispose of the government of those parts some other' way." It appears that, if the grant of Charles II. to Duke of York ever progressed to make it effectual, that it was surrendered. There is, or was, in existence in 1717, the draft of a grant, dated April 13th, 1G83, reciting the surrender of the grant of March 22d, 1682-3 ; and May 31st, 1683, Lord Baltimore's agent prayed that the draft should not pass into the grant, and this prayer was not disposed of till Charles II.'s death. {See Chcdiners^ Colonial Opinions, 75, 83, 87, 86 ; OpAnion of Northey and Thompson, Oct. 2\st, 1717; Opinion 6 on King's Preroga- tive Abroad.) As the counsel for the crown, in the opinion last stated, say, — the great seal having been delayed till November, 1685; the great seal of James II. could not have been affixed to a grant of Charles II. after Charles' death in the February preceding ; nor could letters patent be issued nine months after that King's death, — as letters patent of King Charles II., nor as letters granted to the Duke of York as such — he then being King. Charles II.'s seal was probably destroyed in the spring or summer of 1685. Charles II.'s Chancellor, or Lord Keeper Guilford, remained such under James II. until September, 1685, 24 JUEISDICTION AJfD BOUNDARY when he died ; and Jeffries was James II. 's Chancellor in No- vember, 1685. Each great seal is destroyed on the demise of the King, and necessarily so, as each great seal is engraved with the reigning sovereign's name. {See Charles II.' s and James II. great seal, in Ath Vol. KnigMs History of England, pp. 241, 381.) ' . The two decrees of a competent court, which could and ioould 'pass upon the equitable as well as the legal title, it seems, should be conclusive that the croivn -was entitled to the soil and govern- ment of the three counties as late as November, 1685, and a. v. 1709. The refusal of Penn to show his title^to the government ; the pretence of his adv^ocate in 1715, that the title depended upon a grant of James II. (not as Duke, but) as King to Penn, — which James II. had done all he could to make effectual, but which, also, was delayed at the great seal, probably just as he abdicated and fled the kingdom ; and Penn's confession that he woidd have had the grant, if the King had delayed two days longer — all are strong proofs that the decrees Mere, and were considered, conclu- sive that the supposed grant of Charles II. to the Duke never took effect ; and that the title to government and soil, too, remained in the crown. Though Penn was permitted to remain in possession, yet, from the year 1702, Penn, after many struggles to escape it, signed a icritten declaration every time his Governor was approved by the King, that the approbation of the King of the Governors of Pennsylvania and oj the three lower counties should not impair the claim of the crown to the government and soil of the three lower counties. This declaration was repeated for certainly seventy years. Brcviai, p. inn, This is admitted in 1750, in the Breviat of Penn's counsel, in Library,'No.iG24 thc suit of Penn V, Lord Hcdtimore, to have been done from 1702 till that time; but his counsel say it was so in every colony, by virtue of a statute of Ann. The truth is, there is no such reservation in any other case. The Governors w'cre rec^uired to be approved by statute 7 and 8, BETWEEN 'SEW JERSEY AND DEL.VH'AEE. 2a William III., ch. 22, § 16,' A. D. 1696, and not by an act in Queen Ann's time. These decrees, Peun's reluctance to show his title, liis counsel in 1715 claiming under a jjatent of James II., and not Charles II., his and his heirs' rejoeatcd written declarations, and the con- tinual claim of the crown during five reigns, make a strong case against the existence of any grant by Charles II. The Delaware statnte of 1775, (1 Bootlis Laws, pp. 567, 569,) untruly recites the proclamation of George III. in January,' 1769. The King's proclamation, expressly reserves the right of the crown to the soil and government of the three counties, and only ratifies the agreement so far forth as relates to the dispute of Penn and Baltimore " between themselves." I have a copy of the M'hole proclamation. Superadd to all these decrees, writings, reservations and facts, — the acknowledgment by Delaware in 1794, that the crown at the Eevolution owned the three counties, and was entitled to the government thereof, and her claim that thus by the Revolution of 1776 she derived the title to the vacant lands, — and the weight of the evidence against the grant of Charles II. to the Duke becomes overwhelm- ing. {Sec Ad of 1791, in 2 Booth's Laws, p)p. 1174, 1175.) Mr. Sergeant rejected this act of 1794, as any estoppel against Delaware ; but the recitals in this act seem to be true, — and are proved to be true by the other powerful evidence before stated. If such grant of Charles II. to Duke, March 22d, 1682-3, is now shown, what is it against two decrees — one in 1685, and one in 1709 — that the crown yet held the title to the land and the government of the three counties. There may be a record of the grant ; but is there any record . of the great seal being annexed to it as an original paper? The decree of Lord Hardwick in 1750, is to be found in Penn- sylvania Archives, 1760 to 1776, Vol. IV., p. 13. His decree expressly reserved rights of crown. I think it does not appear that Attorney-General ever in flict appeared to the suit. 26 JUKISDICTION AND liOUXDARY In the Brevial of Perm's couusel, they say they have the grant of Charles II. to Duke ready to show, but it does not appear to have been put in evidence at all. There have been two investigations of the title to Pea Patch Island, which is in the Delaware river, within the supposed twelve-mile circle — one in the Circuit Court of U. S. for New Jersey, before Judge Baldwin, in November Term, 1836; the other, before John Sergeant, as Arbitrator, in 1847 and 1848. The case before Judge Baldwin was between Gales, lessee, plaintiff, and Edward Belinge, an engineer of the United States, in possession under the United States, defendant. {See Governor Bibb's Argument before Mr. Sergeant, Senate Executive Documents, No. 21, XXXth Congress, first Session, A. D. 1848.) The result was, a verdict and judgment against Belinge, No- vember Term, 1836. {Sec a history of the case v:iih Judge Bald- win's charge in Senate Documents, No. 140, XXVfh Congress, second Session, A. D. 1838.) BETWEEN NEW JERSEY AND DELAWARE. 27 The case before John Sergeant was between James Humphrey and the United States. Ilumplircy claimed under a sale to Hudson, under a jndg- ment and execution out of Supreme Court of New Jersey, against Gale, and a deed from Hudson. [Sec Ex. Doc. No. 21, above p. 51.) The arbitration was under an agreement between Marc}-, Sec- retary of War, and Humphrey, dated February 27th, 1847. The agreement is set out in full, in Ex. Doc. No. 21, 2'P- -1, 5, 6, 7. By this it was agreed that Sergeant should " decide the question of title to the said Pea Patch Island, as derived, by the United States from Delaware ; and by the said James Humphrey claiming through the said Henry Gale, deceased, frona the State of New Jersey ; and his decision and award made in writing shall be final and conclusive between the United States and the said James Humphrey, claiming under the said Henry Gale, de- ceased." Humphrey agreed to leave a deed to United States in escrow, to be delivered, if decision in favor of United States. If award against the United States, there was to be a valuation of the island, and when paid, deed to take eifect. The result of this arbitration was in favor of the title of the United States under Delaware. In the first case, in 1S3G, Judge Baldwin charged the jury: that Delaware had never been granted by the crown, and re- mained as part of the royal domain : that Pennsylvania had no title but such as the Duke of York had ; and that he had none : that the Duke's two deeds to Penn of 24th August, 1682, pur- ported to grant the twelve-mile circle, and by the words " roi/- altics," and " seignories," the power of government. The truth is, the word " seignories " is not contained in the deed. He also charged that the act of union in 1682, between Penn- 28 JURISDICTION AND BOUNDARY sylvania and the three lower counties, (Delaware,) recited that the Duke acquired the counties by conquest ; but as a subject could not acquire such title, the title vested in the crown, and cited Chalmer's Colonial Opinions : that the deeds alone passed neither soil nor jurisdiction : (hat the}' did not, in intendment of law, even, purport to pass more than a tract of "land" on the Delaware ; therefore, that the bounds of the grant must be on the bank, and not follow the line of a circle into the river : that the habendum is only of " the town and circle of twelve miles of land about the same islands, and all other the before- mentioned or intended to be hereby bargained premises :" that the only part of the river conveyed was that west of a line drawn between the two points where the two ends of the circular line touched the river. The omission of the word " river," in the habendum and cov- enants, he thought, aided the construction, He thought that in no event could the deeds be construed to intend a grant of any more of the river than to its main channel. He suggests that, as the island was not in existence in 1G82, it might have been part of Jersey main land tlien. If bare at low water in 1664, and part of Jersey sliore, it Avas ^-et in New Jersey; if under water always, prior to Eevolution, it belonged to King. Though the title purported to be conveyed by the Duke's deeds was not valid originally, it became valid by acquiescence of the crown in Peuu's long possession of the government from 1682 to 1776. {But, as ice have seen, the crown did not acquiesce.) That there was every evidence, short of letters patent, of Penn's title to the three lower counties. He instructed the jury to take it as proved, that the King had ajiproved and confirmed the Duke's deeds to Penn, but that, as to boundaries, they could go only as far as possession had been had, or acts of ownership or jurisdiction exei'cised. Says there is no evidence of possession of Pea Patch Island, or any jurisdiction exerted till 1813, when Delaware ceded it to United States. The title must depend upon the acts of approbation and con- firmation of the crown. An uninterrupted enjoyment of a right of government will give rise to the presumption of an original grant or confirmation. That islands in Delaware have been surveyed by West Jersey BETWEEN NEAV JERSEY. AXD DELAM'ARE. 29 proprietors since 1739, at least. (This was after government surrentlcred, and tlierefore could not be assertion o? governmental right. Delaware alleged all these were north of circle.) He said it is matter of judicial knowledge, that New Jersey has enjoyed riglits of fishing in Delaware. Laws of New Jersey regulated rights of fishing in Delaware. [The only right New Jersey Legislature, prior to Revolution, had to do this as to Delaware river, must have been the grant of right to fish if river was in crown .J Penn claimed right to islands in Delaware, and it was I'ccog' nized. {Cites 12 S. and F. 209, 210.) llights of Delaware are perfect to the extent of exercise of jurisdiction or acts of legislation ; both being "the foundation of prescription. No pretence that Penn exercised any jurisdiction beyond the middle of the river. The adverse claim of the New Jersey proprietors, by making grants, tliough they had no right to government, would bar any prescription of Penn. At Kevolution, States did not become propiietors. In 1784 a survey of West Jei'sey proprietors vested title in Hall, under wliom Gale claimed. Hall and Gale had possession from 1784 to 1815, when dispossessed by United States. Thirty-one years' possession was good title. Delaware had an election to consider herself as succeeding to the rights of the proprietaries of the three counties, or to the lights of crown — [i. e., proprietaries had title by possession against crown, and State could succeed to that ; or, having conquered the territory from the crown, if it was jjroprietor, stand on that.] This election was made eighteen years after Revolution; and in 1794, when Delaware repudiated any claim under Penn. Del- aware then, by act, recited that the crown having claimed the soil of the State, and the crown having relinquished its rights, pro- prietary and territorial in the United States to its citizens, by virtue of this relinquishment, the soil and lands became the rights of the citizens of Delaware, who have power to dispose of it ; and the claims of the former pretended proprietaries are not founded in law or equity. This election he held to preclude Delaware from standing on the Penn title by prescription ; that as the State rested its title 30 JURISDICTION AND BOUNDARY on the treaty with England, she can have no better right than tlie King. The renunciation of the title of Penn put both States on equal footing. The King had title to the river and the two States at the Revolution, took title to the middle of the river. Gen. "Wall's brief (lie then being U. S. District Attorney) is at page 25 to 34, Ex. Doc, Senate, No. 140, A. D. 1838. He plac&s the right of New Jersey on the absence of the title derived from the crown to the Delaware river in either State, and that by the Revolution each Avent to middle of river. Sergeant admits the conclusion, if neither had title. {See E.v. Doc, No. 21, A. D. 1845, pp. 230-1.) Ex. Doc, Sen- j^fj. Sergeant, in 1848, places the title of the State of Delaware ate, A. D. 1848, Of 'J. No..2i,p.234. iipon the fact— Is^ That the Duke of York made the grant to Penn, tliough without title, and that thereby the three couuties became a Prov- ince or Colony, and acquired a name or identity, with the bound- aries given by the deeds. 2d. That the act of union of Pennsylvania and the three coun- ties, 7th December, 1682, was, "of course," submitted to the King in Council and approved. [This he assumes, entirely.] Sd. That the crown thereby assented to the act of union, and thus acknowledged the validity and legal operation of the two deeds to Penn from the Duke of York, the boundaries defined in them, the possession and right of possession according to those boundaries, and the rightful exercise of the powers of govern- ment under them. 4th. An existing Colony Avas thus acknoM-ledged as rightfully created and lawfully enjoying the powers and privileges of a Colony by known and settled boundaries ; and this acknowledg- ment was by all who had an interest. 5//i. That neither Pennsylvania, New Jersey, nor the Duke of York had title. BETWEEN ^BVr JERSEY AND DELAWARE. 31 Gth. Tlic crown alone could object, and the crown assented. 7th. The crown never retracted its assent, nor intimated any disposition to do so. Sth. That, March ■22d, 1682-3, Charles II. granted to the Duke the same premises which, in August, 1682, seven months before, the Duke had conveyed to Penn. dlh. The original patent M'as produced before Sergeant, (he says,) p. 235 ; but see record of (lie evidence, pp. 8, 9 ; an exem- plification of this patent nnder great seal 16th July, 1843 ; a printed cojiy, said to be in Franklin and Hall's edition, in 1754, of proceedings of Pennsylvania Legislature, Vol. III., p. 590. {See p. 19 and 18 of Ex. Doc, No. 21 ; a sworn copy under seal of Mayor of London, dated February 4th, 1735, made from letters patent in Penn's possession. The original was offered to be j^roduced in 1735, in Penn v. Baltimore. 10th. The foundation of the new Ptovince on the basis of the deeds from the Duke, the exercise of legislative power, the dec- laration of allegiance at Newcastle, and the union with Pennsyl- vania, M'ere all approved by the crown. [This is all assumed.] 11th. In 1685 the King in council, to whom the jurisdiction belonged, decided against Baltimore title. [And Penn's too, ad- judging title in croicn, two years after the alleged patent to the Duke.] 12^/(. Penn removed from the government of Pennsylvania by King AVilliam, in 1692. Xo question about title then. Penn restored by King in 1694. 15th. January, 1711-12, Penn's title was gone into by Attor- ney-General, with a view to his surrender of the Government, and held made out. 1-ith. June, 1717, Earl of Sutherland applied for grant of the three lower counties. Ko letters patent from crown to Duke then shown, because Penn was under a lunacy. The Attorney 32 JUEISDICTIOK AND BOUNDAEY and Solicitor-General advise no grant without establishing crown's title in chancery. 15th, The title passed undisturbed by the crown through five reigns and a revolution, and the Province continued as it Mas founded in 1682; though always in view of the English author- ities, and frequently since subjected to the examination of the King's advisers. IGth. June, 1735, Penn's suit against Lord Baltimore, decree against Baltimore, and liberty given to either paHy to apply, if the execution of the decree was interrupted by any act or right of the crown ; and liberty never used. Crown did not interpose its right, nor do any act. [Reason was, this decree in no wise affected tlie crown's right to the three counties. This decree i-elates only to northern and western boun- dary, and Penn and liis heirs had for above thirty years before, whenever he or they appointed a Governor, been required to sign a paper that tlie crown's act in approving his Governor should not prejudice crown's riglit to three counties.] pp. 238-9. 11th, The Duke was estopped. 18^/i. The Duke was trustee of Penn mIicu he got the sup- posed grant in 1683, and therefore Penn, and so Delaware, has equitable title, wliicli was just as good by tlie agreement submit- ting the question to Sergeant. 19//(. Decree of Lord Hardwick in 1750 settled the caUdity and legal sufSciency of the deeds, the right of the Province under them, and of course its boundaries. [It really settled only northern and western boundaries.] 20^/i. Decree universally acquiesced in, and became the law of the land till the Revolution of 1776. Neither party ever aj^plied to set up any act or right of the crown. 21st, Twenty -four years more elapsed, from 1750 to 1774, without a question of boundary, when first Congress assem- bled. The boundaries were acknowledged by the crown — the crown, in truth, never having disputed them. BETM'EEN NEAV JERSEY AXD DELAWARE. " 33 22c?. Such as this Province of the three lower counties Avas v.m\ under the crown of England, she was acknowledged to be, by being received into Congress of 1774. 23f?. The boundaries of the three lower counties had never been questioned by the crown from the beginning. [It is not a mere question of what the boundary was, but what it is; and this is to be determined by what the jurisdiction was; not what the boundary was. The crown denied the rightful power of Penn to govern, and reserved its right. Penn, many times under his hand, agreed its acts should not prejudice its right.] 2ifh. New Jersey has no controversy with Delaware as to the boundary. 2otJi. There was no outstanding royal claim which, according p. 241. tOiSIartin and Waddell, would have vested in the new sovereignty at the Revolution. 26^/;. From these considerations, if the King had not conveyed to the Duke, it would be difficult to prove that Delaware's limits were not determined by the boundaries in the deeds — unless they interfered with some superior and better right. 27th. A Colony without any deed, under like circumstances, would, if there were any authentic documents to prove her boun- daries, be entitled to stand on the boundaries. 2Sih. All arguments against Delaware's right to the river go r- 2n. too far. They take away right to the land of the State, for it is alleged the three counties belonged to Lord Baltimore. [This is not so ; for the existence of the river between the two States halves that, but not the land.] 29^/t. The right between Penn and Baltimore was decided by King in Council, 1685, by fixing the present line. [This is all wrong. The council determined it to be the King's — not Penn's. The question of the boundary of the three counties was not up, but the eastern boundary of Maryland.] E 34 JURISDICTION AND BOUNDARY SOth. The original right has never been open since. [Yes, it has. The crown, as late as 1760, claimed the right to the three lower counties.] Slst. The right of Penn as against crown, was long ago settled and decided in England. [But decision in 1685 was in favor of the King against Balti- more, and Penn advocated in person the King's right. Lord Hardwick's decree, in 1750, expressly reserved right of crown.] S2d. The patent of Charles II., in 1683, to Duke, authenti- cated the boundaries of the three lower counties. 33c7. So did the decree in council, in 1685. 34^. So did Lord Hardwick's, in 1750. 35^/(. The boundaries never underwent a change from the be- ginning. [This is immaterial. It is no consequence what the bounda- ries were ; the question is, what are the boundaries noio ? If Penn had not such title to the government as was good against the crown — the boundaries noiv must be different from what they were of old; for the Revolution of 1776 would divest the rightful title of the crown, and halve the river, and vest that riglitfiil title in the two conquering sovereignties, — no matter what, in fact, had been the colonial boundaries under Peun's de- feasible claim. Tlierefore the question as to former times is not one of actual boundary, but of governmental rigid. If the crown denied the right of Penn to the government tliroughout ; and re- served it ; and Penn assented to the reservation under his hand ; — what the boundaries of an invalid deed, and a deed which gave no power of government at all, and which could not estop even the Duke's claim to the government — is immaterial to the ques- tion of jurisdiction of old, which settles what the boundary is noio. If the power of government was in the Duke, and not con- veyed by his deeds, as it was not, it entitles New Jersey to mid- dle of river, same as if King had the river.] ZQth. The terms used in the Duke's deeds are the same as used BETWEEN NEW JERSEY AND DELAWARE. So to convey navigable rivers to the Duke — to I^ord Berkeley and Sir George Carteret, and from them to New Jersey proprietaries. 37^/;. Not unreasonable to think grant of river was intended, reserving only the public rights — navigation, for instance — which were free and common to every subject, and now are common to every citizen. S8th. Has Delaware, by any act or defoult of lier own, parted with right she had ? If she has, it must be as a sovereign parts Avith his right to his territory. It would be legitimate to allege anything to show her right in one State or another : but if her boundaries are conceded, argument is at end — there must be a grant. If there was a dispute as to boundary, the State might settle it ; but, admit the boundary, and there is no dispute to settle. Delaware's act of 1794 did not grant New Jersey the territory ; nor did it settle boundar}-. [It did settle the boundary, if the facts recited in the act of 1794 are true. The Ijoundary depended (as Mr. Sergeant admits, 2)p. 230, 231,) on the /ac< whether the crown owned the river in 1776. The act of 1794 admitted that the crown did own it.] 39//i. Case been argued as if title to Pea Patch dejjended on boundary of State. AOth. The decision of Judge Baldwin, in Circuit Court U. S., and of Delaware Circuit Court, by default, both necessary to be disregarded; for the very question to be determined is the juris- diction of one court or the other over the cpiestion. Alsi. Governor Bloomfield, of New Jersey, negotiated the cession of Pea Patch Island from Delaware to United States. 42cL Reedy Island is conceded to be Delaware's ; yet, if wliile Delaware -was a Province, the river was in the crown, Delaware could have no right to Reedy Island. [He seems to say this island was in possession of Delaware prior to Revolution of 1776.] AM. New Jersey, even in granting to Gale, asserted no title to Pea Patch. 36 JUEISDICTION AKD BOUNDARY 4:ith. Not a single instance of jurisdiction, by New Jersey, over Pea Patch. Tlae suit in Circuit Court U. S., New Jersey, is no evidence. It was after controversy arose, and to deter- mine it. p. 249. 45th. Delaware asserted, and exercised jurisdiction over liver and islands habitually. This is conclusive evidence. ■iGth. Cites evidence of Chief Justice of Delaware and eleven others as to exercise of jurisdiction. 47th. New Jersey, in 1709, established boundaries of her coun- ties west of Delaware. Her act of 1822 was after controversy arose. 48^/i. Concludes Pea Patch was in Delaware. Eeply to the Points upon avhicii Mr. Sergeant places THE EIGHT OF DELAWARE TO THE PeA PaTCH IsLAND. 1st. That the counties, by the Duke's grant, became, de facto, a Province or Colony ; and acquired a name or identity, with the boundaries given by the deeds of the Duke. BETWEEN NEW JERSEY AND DELAWARE. 37 — (a.) The boundaries do not include the Delaware river, except a cove. {See Humphrey's line in map in 1 Wallace C. C. B. Appendix, and the discussion of the boundaries hereinbefore con- tained.) {b.) It Avas 7iot a Province, de facto, in any hiown sense of that phrase. Every government, de jure, which exercises its jjower, is a government in fact ; but is never called a government de facto. Delaware's Governors were approved by the crown from 1702 to 1776, under the repeated written declarations of Penn and his heirs given to the crown, that such approval should not impair right of crown to government or soil. In the true sense of Mr. Sergeant's proposition, a government, de facto, is one which is not dejure. This government was con- fessedly not granted, and therefore not de jure ; but being per- mitted under reservation of the croAvm's right, though quasi de jure, as long as permission lasted, it was not de facto, as distin- guished from de jure. Besides the written declarations, — we have crown's reservation as late as January 11th, 1769. ^^Tien one exercises the powers of government, in fact, (not de facto,) by express permission of him who turns out to have had the title dejure, who, however, reserved his own right, — the exercise of power which has taken place must be referred and attributed to the best title ; which was the permission of him who had the title dejure. The dejure title of the crown appears by the decrees of 1685 and 1709 ; and it was reserved by the M'ritten declarations of Penn; and the ^proclamation of January 11th, 1769. The act of Delaware of 1794, though not an estoppel, is the strongest possible evidence. Estoppel is conclusive. This evi- dence is strong, though not conclusive. It destroys the right to act on a de facto basis ; it acknowledges the right ; it states who had the government de jure. It is a moral estoppel, and tliat ought to be enough between sovei'eigns. (c.) There can be no title by prescription between sovereigns founded on a de facto government, where continual claim is kept up. {See VatteU's Law of Nations, p. 190, §§ 143, 144, 145.) 38 JURISDICTION AND BOUNDARY ■ ' -le — ~ — — ~-~ So that a de facto government, if it existed, is immatei'ial whenever there is a continual claim. As against Penn's title to the government, this continual claim is all that was necessary. As to purchasers of land from him, there ought to be more than continual claim. The title, by prescription alleged, is against the crown. The State of Kew Jersey claims one-half ol the river, under the crown. An acknowledgment by Delaware, in solemn form, as by Statute o/1794, disposes of right under de facto title; for it is a solemn jjublic declaration by one of two claiming under the same title which the other has a right to the benefit of. There is a privity between the crown and New Jersey and Delaware. New Jersey and Delaware have each one-half of the title of the crown, whatever it was. Delaware's acknowledgment of the crown's title, would be estoppel in favor of the crown and against Penn's exercise of power in fact, being considered an exercise of a power technically dc facto. The Penns, in 1792-3-4, claimed the vacant land in Dela- ware. Chief Justice ilcKcan and Edmund Physic were Penn's agents, and made a "calm appeal to the People of the State of Delaware," claiming title to the vacant lands. This "calm appeal" is in Philadelphia library, No. 12,278, duodecimo. The i>ower of Penns to McKean and Physic is on record at New Castle, and dated July 7th, 1781. On the 17th August, 1792, McKcan and Physic advertised notice in the Delaware Gazette that they would sell vacant lands for £5 per one hundred acres. Resolutions of Delaware Legislature of 1792 and 1793, are set out in " calm appeal." {See 2 Booth's Laws, pp. 1077-8, 11 GO.) The date of the supposed letters from Charles II. to the Duke, March 22d, 1682, is assumed in the "calm appeal" to be before August 24th, 1682; whereas it was after, as March 22d, 1682, was last of year 1682, {old style.) 2(?. That the act of union of Pennsylvania and three lower counties was submitted to King in Council, " of course," and ap- proved. BETWEEN NE"W JERSEY AND DELAWARE. 39 (a.) This is not to be admitted. There is much evidence that it never was so submitted. There are records to show the union was considered illegal within a few years after 1682. It was repudiated by three counties, and their separation from Penn- sylvania must have been illegal, if union approved by crown. The separation was never objected to, but the union was ; both in three lower counties and in England. {See Quarry's letters.) 5d. That, by approving union, crown acknowledged — I. Validity and legal operation of feoff- ments of Duke to Penn. II. The boundaries defined in the deed. III. The jiossession and right of possession of Penn, according to the boundaries. IV. The rightful exercise of the powers of government. (a.) This third proposition cannot be admitted as a fad, for crown did not approve the union act. (b.) The approval, if it had been given, would not have these effects stated, for the decrees of 1685 and 1709 overthrew all such effect. (c.) Penn's solemn written admissions that crown claimed the soil and government, avoid the effect of the union act. It was a mere temporary expedient, if union approved. (d.) The boundaries in the deed do not include any more of the river than a cove. {See Humphrey's line on map in 1 Wal- lace C. C. -B. Appendix and the discussion of boundaries herein- before contained.) {e.) If union act being approved had such effect, Penn's writ- ten declaration avoided it, and reinstated the matter as it stood before approval of union act. Penn's declarations were given after separation. (/.) If boundaries were acknowledged by union act, then the separation, the decrees of 1685 and 1709, Penn's written declara- tions from 1702 to 1776, crown's reservations iu proclamation of 1769, — all show crown claimed the title and government ; and the claim of crown thus made enures to New Jersey's benefit ; for, if crown's right in river existed — as the decrees, the declara- 40 JURISDICTION AND BOUNDARY tions and proclamations show — New Jersey lias title to middle of river. In this respect the definiteness of the boundaries aids New Jersey. It shows the extent of crown's claim to the river which is public property, and must go with the governmental powers. Wlien decrees of 1685 and 1709, and Penn's declara- tions and King's proclamations are shown, the definite thing claimed by the crown and decreed to crown is made manifest. The crown claimed all of three lower counties, and so the river, if the river was included by the description in feoffments. (.) It settled only northern and western l:)onndaries. Idth. Decree of 1750 universally acquiesced in till 177G. (a.) Crown proclamation of 1769 mis-recited in Delaware act of 1775. Cro-H'u did not acquiesce, l)ut expressly reserved its right. {Bee aho above Gfh.) 20th. rroui 1750 to 1774, acquiescence in boundary till first Congress. Crown never disputed boundaries. (a.) Proclamation of 1769 intervened. {b.) Penn's heirs' written declarations were repeated. (e.) Crown always disputed title to any part of the boundaries — /. e., the right of Penn to the power of government. That being disputed, and Penn assenting to the right being re-asserted at any time, over the wliolc he occupied, it is immaterial that the crown did not dispute the right to any particular part of the boundaries. 21.s^ Such as Delaware was under the crown, she was ac- knowledged by first Congress. (cf.) Tliis might be admitted ; fjr, under the crown, she was iiof acknowledged as a government existing, except by temporary sufferance; but as belonging, really, soil and government, to the crown directly, without any rightful jurisdiction or boundary, — ■ unorganized and unbounded. (6.) Did New Jersey, by consenting to the admission of Dela- ^vare as a Colony, acknowledge her boundary, or give up any right she there might have insisted upon ? Did she waive any right, by not asserting it against Delaware, when all were uniting to preserve their liberties as men!' 22d. The boundaries of the three lower counties had never been questioned by the crown from the beginning. (a.) But, so far as the present controversy is concerned, the crown questioned something more important than the boundaries. If the crown was right, New Jersey's claim to river stands on 44 JURISDICTIOX AND BOUNDARY solid foundation, by virtue of Revolution of 1776. The crown questioned the right of government, certainly from 1685. Penn, certainly from 1702, admitted it was questioned, and agreed that the right should be asserted whenever the crown thought proper. (b.) It is not a mere question of boundary ; but of any jurisdic- tion, within any boundaries by Penn which could be transmitted to Delaware as against the crown. If there was no rightful jurisdiction at all over the three counties, and the right to assert the claim of the crown M'henever it was found convenient, was reserved, (as it was,) and it appears now that the crown had the jurisdiction ; — it is immaterial to the question of governmental right over the three counties, what the boundaries of the three counties were ; for whatever they Mere, all within the boundaries were not Penu's, but the crown's. If the crown had the right, Penn had assented to its being asserted at any time ; and the de facto existence of his government any length of time, over whatever boundaries or to whatever extent, could not ripen into a right against the crown ; for by common consent the crown's right was to be exerted whenever the crown chose. o 2ith. New Jersey has no controversy with Delaware as to boundary. (o.) Now, she has. 2oth. There was no oidxfanding royal claim which, under Martin and Waddell, would have vested in the new sovereignty at the Revolution. (a.) This is not true, and never can be asserted so long as there exist the decree of 1685 ; the decree of 1709 ; Lord Hard- wick's reservation in his decree of 1750; Penn and his heirs' repeated wrftten declarations in writing, from 1702 to 1776; the proclamation of 1769. (6.) No grant by Charles II. to Duke's son took effect ; or if it did, it was surrendered. 26f/i. From these considerations — if the King had not granted to the Duke — it would be difficult to prove that Delaware's BETM'EEN NEW JERSEY AND DELAWAEE. 45 limits were not determined by the boundaries in the deeds, unless they interfered with some supreme and better right. (a.) It is immaterial M-hcther her limits were detei-niincd or not. Though the question now at issue is one of boundary ; that is to be determined by who had the right of (/overnmcnt — the crown or Peun. If Penu had any right, it was by contract be- tween crown and Penu to be defeasible by the crown at any time. He M'as lessee at will, and prescription runs not in favor of such a holder. Did Delaware belong to the crown or not, is the rpiestion. The crown claimed her certainly from 1702. Penu consented to leave the question open. Delaware, by her legisla- tion, 1792-3-4, admitted she had belonged to the crown till 1776. AV'hatever her boundaries iccrc is immaterial. The question is, what arc her boundaries noiv f This does not depend on M'hat her boundaries iccrc ; but upon the question, to whom did the power oi government belong. The main fact is whether crown could have claimed the government of her, if there had been no llcvolution of 1776. If the crown could, New Jersey goes to middle of river. This does not prove too much, as Sergeant says ; for a royalty — a river stands on very different ground from the land which was inhabited and cultivated. The land is private in its nature — the river is always public. The land can be held in possession as property ; river cannot. Though land is corporeal, the gov- ernment over the land is an incorporeal royalty; the river is a corporeal royalty ; and should be held as such or not at all. (6.) The deeds ought not to determine the boundary on that which is not a subject of private property. The deeds were for private property, and ought not to determine jurisdiction over that which is not a subject of jmvcde property. The boundaiy of a deed often determines extent of possession and of claim to private pi'operty. But it ought not to determine boinidary or jm-isdiction — no jurisdiction at all being granted. (c.) Permitting the boundaries of the private property grant- ed to determine the boundary of jurisdiction, ivould interfere with " the superior and better right " of crown ; which Penn 46 JUEISDICTION AND BOUNDARY admitted was claimed by crown, and under wliicli lie held de facto by permission until the right should be determined. 27th. A Colony icithout any deed wonld, under the other cir- cumstances — if there were any documents to prove her bounda- ries — be entitled to stand on the boundaries. (a.) Surely not as against the rightful claimant of the Colony, whose right, it was agreed should be asserted when convenient — nor as against any one claiming under that right. 28^/(. All arguments against Delaware's right to Pea Patch, in land, go too far. It would deprive her of vacant land and jurisdiction over all her land and territory. (a.) On the contrary, Delaware puts her right to vacant land upon right of crown to it — and thus legitimately derives title, and without it could not claim it. {b.) The argument that crown owned government and land, would give the whole of both to Delaware, except the river. Thus Delaware claimed both government and land in 1792- 3-4 ; but from the nature of part of the subject to M'hich she claims title under the crown — (the river) — and from adjacency of New Jersey — another sovereign ; she can have but half of tlmt. 29 ' Hsiied ?n\'87o""'^^'°"^'-^ havc bccu covcrcd by deeds, if a complete circle were described by feoffment. 38^/i. Delaware has not parted with any right she had. If she had she would have done it as a sovereign parts with it. If boundaries are conceded arguments are at an end. If there were dispute about boundary, Delaware might havc settled that dispute. If there was no dispute there was nothing to settle. Act of 1794 did not grant New Jersey the territory nor settle a boundary. (a.) The State of Delaware's right was acquired by Revolution of 1776, cither from Penn or from crown, or both. She could not acquire the same thing from both unless they were both entitled. But one or the other was entitled, not both. The question is not whether act of 1794 granted anything to New Jersey, or settled any disjjute of bouudaiy between the States, but whether the act of 1794 admits a title to the government in the crown and claims under it. If it docs, then thereby Delaware admits a fact M'hich determines what the boundary is, not what it was. The presumption is she had no more than she claimed. The un- impeachable presumption must be that she did not have the title which she not only did not claim, but declared was not founded in law or equity as to the land. BETWEEN NEW JERSEY AND DELAWARE. 49 The act of 1794 is an admission of a, fact — no governmental jurisdiction by Penn — wliich, if true, proves Delaware never liad any title to the Delaware river as a colony ; but which entitles her, as a Revolutionary State, to one-half of it, though she never before owned it ; and also entitles to New Jersey to the other half. The act is a solemn admission. Delaware did not, in 1794, claim that to be true which she now alleges. On the contrary, she claimed that the fact she now alleges as true — that Penn had the soil and government — was false, and his claim illegal and inequitable. It will not do to say that the claim of Penn, in 1794, was illegal and equitable then, and not before ; for it could not be divested as to the vacant lands by the Revolution. Penn's title to these was a imvate title. The Revolution did not disturb private rights of property. If Penn had the government, that Avas gone by the Revolution ; but if he had the government and lands, the lands did not pass by the Revolution, unless they M'ere public lands aud he held them as the ruler. An admission that Penn had not title to the lands in 1794, is an admission that lie never had title ; for nothing had occurred to divest it. (b.) Xew Jersey does not claim that act of '94 granted any- thing — but that it acknowledged a fact which shows Delaware had not title and did not claim under ; but disj^utcd and denied, the title of Penn. Tiiis fact is now pretty fully established by decrees of 1685, 1709, 1750, and reservation of crown's right; Penn's written declarations and proclamation of crown of 1769, &c. (c.) The concession tliat Delaware Colony boundary extended to Jersey shore, does not end the case. It is not true that if the old boundaries are admitted that argument is at an end ; but if the boundaries noiv, ai'e admitted it is at an end. But what the boundaries are noiv, does not depend upon what ivere the boun- daries, but in whom the government "s\'a3 vested. If Delaware was bounded by the west side of the river of old, she yet would go to the middle of the river. This shows that what ivere the boundaries is not the question, but in tvhom the powers of G 50 JURISDtCTIOX AND BOUNDARY government resided. Though they resided iii fact in Dela- ■\vare Colon)', by permission of the crown, under whom New Jersey claims. New Jersey can assert the crown's title. The question is, under whom did Delaware Colony claim it and hold it, aud by what title. If/)), name of, and for crown, New Jersey can claim of Delaware, as crown's trustee, half of the river. That Delaware claimed in name of and for the crown, is shown by act of 1794, by Penn's repeated written declarations that crown should not be prejudiced by approving of her Governor, and by the proclamation of 1769, under M'hich, also, Delaware claims by her statute of 1775. « Sdth. Case been argued as if it depended on the boundary of State of Delaware. (a.) Pea Patch being an island and land, it might have been enough to show it within feoifments. (6.) But showing the river to be Mithin feoffment did not settle the political boundary. 40th, Decision of Judge Baldwin, not competent as evidence. (a.) This is not sound, though the question to be decided by Sergeant was whether District of New Jersey included place. The question to be controlled by judgment of Baldwin was twofold — the title against United States, established against its officer, aud exercise of jurisdiction by a court upon jurisdiction was within New Jersey. 41st. Governor Bloomfield being negotiator, (a.) Immaterial. 42d. Reedy Island is conceded to be Delaware's ; yet if Dela- ware river was in crown's power to 1776, Delaware could have no title to it before 1776. («.) An island stands on different footing from river. River is royalty and public ; island is uot. Possession would give Del- aware the island ; but such possession of river not possible. Possession of private land, under circumstances before stated of BETWEEN NEW JERSEY AND DELAWARE. 51 Penn's written declarations, might give title to it; but would not to a royalty. 43d. New Jersey never asserted title (a.) She docs now. 4-lth. Not an instance of jurisdiction exercised by New Jei'sey. («.) Tlien instances must be searched out. 45th. Delaware habitually exerted jurisdiction on river. (a.) This is capable of explanation by reason of convenience. 4Gth. Evidence of Chief .Justice of Delaware and eleven others, (a.) Should be examined and contradicted. 47th. In 1709 New Jersey boundary was west by Delaware river. {a.) If Delaware — i. e., the three counties — was on the west, it would have been so said ; but Delaware (the three counties,) was not a boundary of New Jersey on the west in 1709. If the river was the boundary in 1776 of both, the river is to be di- vided between them. 4%th. Pea Patch in Delaware, (a.) Deny it. APPENDIX. lGSO-1— (March 4 ?) The King granted to Penn— " All that tract or part of land in America, with all the islands therein contained, as the same is bounded on the east by Dela- ware river, from twelve miles distance northwards of Newcastle town, unto the 43d degree of northern latitude, if the said river doth extend so far northwards, but if the said river shall not ex- tend so flir northward, then, by the said river so far as it doth extend ; and from the head of the said river the eastern bounds arc to be determined by a meridian line to' be drawn from the head of the said river unto the 43d° ; the said lands to extend westwards 5 degrees in longitude, to be computed fi-om the said eastern bounds — and the said lands to be bounded on the north bv the beo-iunins; of the 43d degree of northern latitude : and on (lic south by a circle drawn at twelve miles distance from Ncwea,stle northwards and icestwards unto the beginning of the 40th degree of northern latitude ; and then, by a straight line M'estwards, to the limit of longitude above mentioned." Feoffments of Duke of York to Pemi, and Act of Union. The Duhc of Yorlc's Deed, of Feoffment of New- Castle, and twelve miles circle, to William Penn. This indenture, made the four and twentieth day of August, in the four and thirtieth year of the reign of our Sovereign Lord Charles the Second, by the grace of God of England, Scotland, France and Ireland, King, defender of the faith, ct-c. annoquc Domini One Thousand Six Hundred and Eighty-two, between the most illustrious Prince his Koyal Highness James Duke of York and Albany, Earl of Ulster, &c. of the one part, and William Penn, esq. son and heir of Sir William Penn, Knight, deceased, of the other part, Avitnesseth, That his said Royal Highness, out of a special regard to the memory and many flxith- 54 APPENDIX. ful and eminent services heretofore performed by the said Sir William Penn to his said ISIajesty and Royal Highness ; and for the good will which his said Roj'al Highnc?s hath and beareth to the said "William Penn ; and for and in consideration of the sum of Ten Shillings to him in hand paid by the said William Penn at and before the ensealing and delivery hereof, the receipt whereof is hereby acknowledged ; and for other good causes and considerations, doth bargain, sell, enfeoff and confirm unto the said William Penn, his heirs and assigns for ever, all that the town of New-Castle, otherwise called Delaware, and all that tract of land lying within the compass or circle of twelve miles about the same, situate, lying, and being upon the river Delaware, in America ; and all islands in the said river Dela- ware, and the said river and soil thereof, lying north of the south- ermost part of the said circle of twelve miles about the said town, together with all rents, services, royalties, franchises, duties, ju- risdictions, liberties and privileges thereunto belonging ; and all the estate, right, title, interest, powers, property, claim and demand whatsoever of his said Royal Highness, of, in, or to, the same, or any part or parcel thereof; Saving always and reserving to his said Royal Highness, his agents and servants, free use of all ports, ways and passages into, through and out of the bar- gained premises, and every part and parcel thereof; To have and to hold the said town and circle of twelve miles of land about the same, islands, and all other the before mentioned or intended to be hereby bargained premises, with their appurtenances, unto the said William Penn, his heirs and assigns, to the only use and behoof of him the said William Penn, his heirs and assigns, for ever, yielding and paying therefore yearly and every year unto his said Royal Highness, his heirs and assigns, the sum of Five Shillings of lawful money of England, at the feast of St. Michael the Archangel only. And the said William Penn, for himself, his heirs and assigns, doth covenant and grant to and with his said Royal Highness, his heirs and assigns, by these presents, that he the said William Penn, his heirs and assigns, shall and will well and truly pay, or cause to be paid to his said Royal Highness, his heirs and assigns, the said yearly rent of Five Shillings at the days whereon the same is reserved to be paid as aforesaid. A)id his said Royal Highness for himself, his heirs and assigns, doth covenant and grant to and with the said Wil- APPENDIX. 55 Ham Penn, his heirs and assigns, by these presents, that his said Royal Highness, liis heirs and assigns, will at any time or times hereafter, during the space of seven years next ensuing the date hereof, upon the request, and at the costs and charges in the law of the said "William Penn, his heirs and assigns, do, make, and execute, or cause or procui'e to -be made, done and executed, all and every such further act and acts, conveyances and assurances in the law whatsoever, for the further conveying and assuring the said town and circle of twelve miles of land about the same, and islands, and all other the premises, with the appurtenances, unto the said AVilliam Penn, his heirs and assigns, for ever, as by the counsel learned in the law of the said William Penn, his heirs or assigns, shall be reasonably devised, advised, or re- quired. And his said Royal Highness hath hereby made, con- stituted and appointed John Moll of New-Castle aforesaid, esq. and Ephraim Harman of New-Castle aforesaid, gentleman, jointly, and either of them severally, his true and lawful Attor- nics ; and by these presents doth give and grant unto the said John Moll and Ephraim Harman, his said Attornies, or either of them, full jjower and authority for him, and in his name and stead, into all and singular the premises herein before men- tioned, or intended to be hereby aliened, enfeoffed and confirmed, and into every, or any part or parcel thereof, in the name of the whole, to enter, and quiet and peaceable possession and seisin thereof, or of any part or parcel thereof, in the name of the Avhole, to enter and receive. And after peaceable possession thereof had and taken as aforesaid, to deliver quiet and peace- able possession and seisin thereof, or of any part or parcel thereof, in the name of the ^vhole, to the said William Penn, his heirs or assigns, or to his or their lawful Attorney or Attornies, suffi- ciently authorized to receive and take the same, and him or them to leave in the quiet and peaceable possession thereof, ac- cording to the true intent and meaning of these presents. And his said Royal Highness doth hereby allow of, ratify and con- firm whatsoever tlie said John Moll and Ephraim Harman, his said Attornies, shall lawfully do, or cause to be done in e,nd about tlie premises, by virtue of these presents, to be as good and effectual in the law, to all intents and purposes whatsoever, as if his said Royal Highness had done the same in his own person, or had been present at the doing thei-eof. In witness 56 APPENDIX. whereof his said Royal Highness hath to these presents set his hand and seal, the day and year first above written. JAMES, [l. s.] Sealed and delivered in the presence of J. WEEDEN, GEORGE MANN. The DuJce of York's Deed of Feoffment of a trad of land tirelcc miles south from New-Castle to the Whorekillf'; to Willicun Pcnn. This indenture, made the four and twentieth day of August, in the four and thirtieth yCar of the reign of our Sovereign Lord Charles the Second, by the grace of God of Euarcel thereof, and there to H 58 APPENDIX. distraiu, and the distress and distresses there taken, to take and detain, until tJie said moiety and arrears thereof shall be well and truly satisfied and paid, together Avitli all costs and damages for the same. And his said Eoyal Highness for himself, his heirs and assigns, doth covenant and grant to and with the said Wil- liam Pcnn, his heirs and assigns, by these presents, that his said Royal Highness, his heirs and assigns, will, at any time or times hereafter, during the space of seven years next ensuing the date hereof, upon the request, and at the cost and charges in the law of the said William Penn, his heirs and assigns, do, make, and execute, or cause or procure to be made, done and executed, all and every such further act and acts, conveyances and assurances, in the law whatsoever, for the further conveying and assuring the said tract of land, and all and singular other the premises, with the appurtenances, unto the said William Penn, his heirs and assigns, for ever, as by the counsel learned in the law of the said William Penn, his heirs or assigns, shall be reasonably devised, advised, or required. A7id his said Royal Highness hath hereby made, constituted and appointed John Moll of Is ew-Castle, aforesaid, es(p and Ejihraim Harniau of New-Castle aforesaid, gentleman, jointly, and either of them severally, his true and lawful Attornies ; and by these presents doth give and grant unto the said John IMoll and Ephraim Harman, his said Attortiics, or either of them, full power and authority for him, and in his name and stead, into all and singular the premises herein before meutioned, or intended to be hereby aliened, en- feoffed and confirmed, and into every, or any part or parcel thereof, in the name of the whole, to enter, and quiet and peace- able possession and seisin thereof, or of any part or parcel thereof, in the .name of the whole, to take and receive. And after peaceable possession thereof had and taken as aforesaid, to deliver quiet and peaceable possession and seisin thereof, or of any part or parcel thereof, in the name of the whole, to the said William Penn, his heirs or assigns, or to his or their lawful Attorney or Attornies, sufficiently authorized to receive and take the same, and him or them to leave in the quiet and peace- able possession thereof, according to the true intent and meaning of these presents. And his said Eoyal Highness dotli hereby allow of, ratif}' and confirm, Avhatsoever the said John Moll and Ephraim Harman, his said Attornies shall lawfully do, or cause APPENDIX. 59 to be done, in and about the premises, by virtue of these pre- sents, to be as good and effectual in the law, to all intents and purposes whatsoever, as if his said Koyal Highness had done tlio same in his own person, or had been present at the doing thereof. In witness whereof his said Royal Highness hath to these presents set his hand and seal, the day and year first above written. JAMES, [r,. s.] Scaled and delivered in the iwesence of J. WARDEN, GEORGE MANN_ An ACT of union, for annexing and uniting of the counlies of New-Castle, Jones's, and Whorcldlls, alias New-Dcde, to the ■province of Pennsylvania ; and of naturalization of cdl foreign- ers, in the said province and counties annexed. Since by the good Providence of God, it hatii graciously pleased King Charles the II. of England, <£-c.^or divers good considerations, to grant by his letters patents, under the Gi'eat Seal of England to William Penn, esq. son and heir of Sir William Penn, deceased, and to his heirs and assigns for ever, this 2irovince of Pennsylvania; according to the bounds therein expressed ; with all requisite powers for the good government thereof, by such laws as he and they shall make, by and witli the advice and consent of the freemen of the said province or their deputies, not repugnant to their faith and allegiance to the legal government of the said realm : And it having also favour- ably pleased James, Duke of York and Albany, Earl of Ulster, &c. to release his right and claim to all and every part thereof unto the said William Penn, his heirs and assigns ; whereby he, the said William Penn is become the undoubted and rightful Proprietary and Governor of the province of Pennsylvania, and is hereby freely and fully so recognized and acknowledged. And as a beneficial and I'equisite addition to the territoiy of the saireserve peace and tranquility on the said borders, until the boundaries should be finally settled. And yom- ^Majesty having approved of what was jn'oposed by the said report, was pleased, by your order in council, of the eighteenth of August 1737, to direct as follows, viz : That the governors of the respective provinces of Maryland ind Pennsylvania, for the time being, do not, upon pain of in- APPENDIX. 69 curring his IMajesty's highest displeasure, permit or suffer any tumults, riots or other outrageous disorders to be committed on the borders of their respective provinces ; but that they do im- mediately put a stop thereto, and use their utmost endeavours to preserve peace and good order amongst all his Majesty's subjects under their government, inhabiting the said borders. And as a means to preserve peace and tranquility on the said borders, his ]\Iajesty doth hereby enjoin the* said governors, that they do not make (/rants of any parts of the lands in contest between the proprietaries respectively, nor of any jxirt of the three loicer coun- ties, commonly called New-Castle, Kent and Sitsse.v; nor permit any person to settle there, or even to attempt to make a settle- ment thereon, till his Majesty's pleasure shall be further signi- fied. And his Majesty is further pleased to direct that tiiis order, together with duplicates thereof, be delivered to the pro- prietaries of the said provinces, who are hereby required to transmit the same forthwith to the governors of the said respec- tive provinces accordingly. That since the issuing the said order, your Majesty hath been pleased to refer unto this committee an address of the deputy governor, and of the upper and lower houses of assembly, of the province of INIaryland, relating to a continuance of the said dis- orders ; and also two petitions, the one in the name of John, Thomas ; and Richard Penn, Esquires, proprietaries of the province of Pennsylvania, praying your Majesty's further plea- sure may be signified relating to your IMajesty's afore-recited order in council of the eighteenth of August, 1737, and the other in the name of the agent of the said province of Pennsyl- vania, complaining of fresh disorders committed by the inhabi- tants of ]\Iaryland against those of Pennsylvania : Whereupon the Lords of the Committee did, on the twenty third day of February last, proceed to take all the papers relating to the complaints made by each of the said provinces, into considera- tion, and were attended by council on both sides, and likewise by the proprietaries of the said provinces; and the council desiring that some reasonable time might be allowed the pro- prietaries to confer together in order to come to some agreement amongst themselves, that so the peace and tranquility of both provinces may be preserved, until such time as the boundaries can be finally settled. The Lords of the Committee thought 70 APPENDIX. projier to comply ■with such their request; aud being this day again attended by all parties, the council acquainted the Com- mittee, that the ■proprietaries of each province had accordingly met aud agreed to the following propositions, viz. I. That so much of the Majesty's order in council of the eigh- teenth of August, 1737, as orders. That the governor's of the respective jjrovinces of Maryland and Pennsylvania, for the time being, do not, on pain of incurring his Majesty's highest dis- pleasure, jiermit or suffer any tumults, riots or other outrageous disorders, to be committed on the borders of their respective provinces, but that they do immediately put a stop thereto, and use their utmost endeavors to pi'eserve peace and good order amongst all his Majesty's subjects under their government, in- habiting the said bordei's, do staud in force and be observed. II. That there being no riots that appear to have been com- mitted within the three lower counties of New-Gastle, Kent & ►Sussex, upon Delaware, it is therefore not tho't necessary to continue the latter part of the said order in council, as to the said three lower counties, (but that the said former order in council, so far as relates to the said three Lower Counties) be discharged without prejudice to either of the proprietaries, as if the same had never been made. III. That all other lauds, in contest between the said pro- prietaries, now possessed by or under either of them, shall remain in the possession as they now ai'e (although beyond the temporary limits hereafter mentioned) and also the jurisdiction of the respective proprietaries shall continue over such lands until the boundaries shall be finally settled ; and that the ten- ants of either side shall not attorn to the other ; nor shall either of the proprietaries, or their officers, receive or accept of attorn- ments from the tenants of the other proprietary. IV. That as to all vacant lands, in contest between the pro- prietiiries, not lying within either of the Three Lower Counties, and not now possessed by or under either of them, on the East side of the river Susquehanuah down so far south as fifteen miles and one quarter of a mile south of the latitude of the most southern part of the city of Philadcliihia, and on the west side of the said river Susquehanuah, down so far south as four- teen miles and three quarters of a mile south of the latitude qf the most southern part of the city of Philadelphia, the temporary APPENDIX. 71 jurisdiction over the same is agreed to be exercised by the pro- prietaries of Pennsylvania, and their Governor, Courts, and OiBcers. And as to such vacant lands in contest between the proprietaries, and not now possessed by or under either of them, on both sides of the river kSusquehaunah, south of the respective southern limits in this paragrapli before mentioned ; the tem- porary jurisdiction over the same is agreed to bo exercised by tiie jwoprietary of Maryland, and his Governor, Courts, and Officers, without prejudice to eitlier proprietary, and until tlie boundaries shall be finally settled. V. That the respective proprietaries shall be at ft-ee liberty to grant out on the common and usual terms, all or any vacant lands within the said province of Pennsylvania and ]\Iaryland, in contest between the said proprietaries, (that is to say, within their own respective sides of the said several limits, mentioned in the last foregoing paragraph.) For the whicli lands, and the profits of the same also, each proprietary shall account to the other, who may be adjudged to be the proprietary thereof, upon the final determination of the boundaries between the two pro- vinces. VI. That all prisoners, on both sides, on account of being concerned in any riots or disturbances, relating to the bounds, or for any act or thing done thereat, or for any other act touch- ing the right of either of the said provinces, in relation to their bounds, be forthwith released and discharged, on entering into their own respective recognizances, in a reasonable sum, to ap- pear and submit to trial, when called upon by further order from his majesty. YII. That this be declared to be a provisional and temporary order, to continue until the boundaries shall be finally settled, and declared to be without prejudice to either party. VIII. That his Majesty bo most humbly moved to discharge so much of the order of the eighteenth of August 1737, as varies from this agreement ; and that the several other petitions of complaint, now depending before his Majesty in Council, relating to any disturbances, may be withdrawn by the respec- tive petitioners. To which propositions, the proprietaries of each province signified their consent before the committee, and declared their readiness to carry the same into execution, if your Majesty shall ArrEXDix. be pleased to approve thereof: And the committee considering tliat tliis agreement may be a proper exj^edient for restoring jjeace and tranquility between the said provinces, and for pre- venting any the like disturbances for the future, do therefore agree humbly to lay tlic same before your INIajosty, for your royal ajiprobation. His Majesty this day took the said report into consideration, and, in order to preserve peace and tranquility between the said provinces, and to prevent any the like disturbances for the future, is pleased, with the advice of his Privy Council, to ap- prove of the said agreement entered into between the proprie- taries of the said respective provinces. And his majesty is liereby pleased to order, that the proprietaries of the said respec- tive provinces of Maryland and Pennsylvania, do cause the said agreement to be carried into execution, whereof the said pro- prietaries, and all others whom it may concern, arc to take notice, and govern themselves accordingly. JA. YERXON. [Tlie following is copied from- an old MS. (without date) in the possession of "The Historical Committee of the American Philosophical Society." It lias been so much injured as occasionally to render it impossible to discover some of the words — which we have occasionally supplied in brackets [ ]. Tlie asterisks * denote entire omissions. About a. d. 1715.] The Claims of y Proprietors of Maryland and Pensilvania. The Boundaries of the Provinces of JNIaryland and Pensil- vania, and of the three Lower Counties upon Delaware annexed to Pensilvania (all which joyn on each other) having never yet been fixed, nor any Division Lines run between them, tiie Northern Limits of Slaryland and the Southern of Pensilvania are disputed by their respective Proprietors, the Ld Baltemore and William Penn, Esq. as is the Title also, in some measure, to the whole said three Counties, and the Grounds of the Dis- pute are as follows, viz : Ccecilius Calvert, Bax'on of Baltemore, in the Kingdom of Ireland, obtained of King Charles the first, by His Letters Patent, bearing date 20th of June 1632, the grant of a Tract of Land named Maryland, in which the sd Patent is thus described, APPENDIX. 73 viz : " That part of a Peninsula lying in the parts of America between the Ocean on-, the East, and the Bay of Chesopeake on tlie West, and divided from the other part thereof by a right line drawn from the Promontary or Cape of Land called Wat- kins point (Scituate in the aforesaid Bay near the River of Wighco) on the West, vnito the main Ocean on the East, and between that bound on the South, mito that part of Delaware Bay on the North which licth under the fortieth Degree of Northern Latitude from the Ecpiinoctial, where New England ends. And all that Tract of Land between the Bounds afore- said, that is to say^ passing from the aforesaid Bay, called Dela- ware Bay, in a right line by the Degree aforesaid unto the true Meridian of the first fountain of the River Potowmeck, and li'om thence trending towards the South unto the fixrthcr Bank of the [rivei'] afoi'csaid, and following the West and kSouth side thereof unto [a certain] place called Cinquake, scituate near the mouth of the said River, where it falls into the Bay of Cheso- peake, [and from] thence by a Streight line unto the afores'd Promontory at a place called Watkius point, etc." B}^ this Grant the present Lord Baltcmorc extends his Claim Northward to the Parallel of forty degrees of Latitude compleat, to be yet found out, and fixed, which according to their present Notion of it will fall much much more Northerly than formerly was imagined. But King Charles the 2d by his Letters Patent bearing date tlie 4th day of March, A. D. 1680, Granted to William [Penn the] Countrey called Pcnsilvania, herein after described [be- tween] fixed Bounds to the SouthAvard, with which that ex- tended claim of the Lord Baltemore much interferes, that according to their present pretentions (could they also come fully up to Delaware) Maryland would take in the principal and most valuable part of all Pcnsilvania, the Improvements and Estates of a great part of the first adventurers, even all the City Philadelphia itself, the Buildings of which alone would at this time more than Doubly purchase all the Towns in Maryland. But that this exteuded claim has no equitable or solid Foun- dation, and that Maryland has no right further Northward than is consistent with the Grant of Pcnsilvania, tho' the Latitudes of those parts should be now found Difterent from what they K 74 APPENDIX. were formerly understood to be, will ("tis supposed) manifestly appear from [what] follows. When such remote [countries as could] not be duly Survcy'd arc granted, where known [fixed lines,] such as Capes, Elvers, &c. are named, if clear from [aforesaid lines] at the time, they cannot be disputed. But when such Bounds as Astronomical Lines, which no mortal could ever yet exactly fix, are made use of, 'tis presumed the Bounds of the Grant ought to be limited as nearly as may be, to what they were understood by the Grantor ; otherwise, as Men's Notions in Astronomy through succeeding ages very much vary, if left to be determined by the truest ob- servation they must forever be uncertain and disputable. The intended Northern Boundary of Marjdand, as given b}^ the Grant, in a lino passing from that part of Delaware Bay which is under the fortieth degree of Latitude. And as the Southern limits arc fixed to a certain spot, viz : Watkins Point on the river Pokomoake, fallsly called Wighco in the Patent, so Delaware Bay is the first thing named in the Northern Bounds, and to this they are in express words twice over limited, viz : first. Unto that fiart of the. Dclaicare Bay on the North (says the Grant) ivhieh lieth under the fortieth Degree ; And again. Pass- ing from the aforesaid Bay, called Delaware Bay, in a right line by the Degree aforesaid. So that here are two particulars named for fixing the Boundary, first, Delaware Bay, which is a certain known place on the earth of a considerable Extent ; and next, the fortieth dcgi-ee of Latitude. But the fortieth Degree taken Literally, is no certain indivisible line, but a Zone containing the space of Sixty Minutes or ISIariner's Miles, for as the Eigh- teenth Century is all those Hundred Years between Seventeen and Eighteen hundred. So the fortieth Degree is all that sjjace between thirty-nine and forty Degrees complcat, and the Patent mentioning neither any determinate spolt on Delaware Bay, nor the beginning, middle, nor end of the -lOth Degree, the Noi'theru Bounds of Maryland by the AVords of the Grant, literally taken, arc left loose and uncertain. Yet, however, this happened to be expressed, 'tis very pro- bable that by the 40tli Degree was intended the parallel of 40 Degrees complcat. But then 'tis evident it was also understood that this parallel did not extend beyond Delaware Bay, and that the whole Limits intended to be granted for that province was APPENDIX. 75 to some part of that Bay and no farther. This therefore ap- pearing, by express words twice repeated, to bo the intention of the Grant, and the Degree of Latitude luippcning to bo expressed by an nncortain term, seeing ahnost all Delaware Bay lies under the 40tli Degree, tho' it reaches not to the end of it, the only method that appears to be left to reconcile the Language of the Grant to itself as also to the Intention of it, is to extend it to the most northerly part of DelaM'are Bay, Avhieh Avhen allowed, \vill give Maryland as great an Extent of Ground as ever was designed for it at the time of the Grant, as will now more fully appear. Now tho' this Bay is among [the lines] generally lui- derstood to end at those Islands called ******** Hook, yet it may bo allowed to roach up to ***** jioint on Now Jersey side, not much below the town of Newcastle, or because of the great Bile under tho town even to Newcastle itself, from whence Dela- ware becomes a smooth I'cgular Biver upAvards, and at that place being but narrow much more justly claims that name than Potowmeck which oven at its mouth is called a River in the Patent for Maryland though it is not loss in that place, than 15 miles over. Thus much being said concerning the Northern Boundary as it is to pass from Delaware Bay, It will further appear ('tis conceived,) by what follows, that without regard to this Bay, a line passing from the aforesaid place or thereabouts, is the ut- most that was intended by the Grant for Maryland. When a Country is to bo described, that is not an Island the description must be taken from a draught of it, now that this of Maryland was taken from Capt. John Smith's Map of that Countrey, published in his Book called the General History of Virginia, N. England, &c. is evident. This Book was pub- lished in the year 1624, and was so much in request for the laro-e and entertaining accounts he gives of those first settlements '&^ and of his own adventures, that it had no less than three editions before the year 1634, the Date of the INIaryland Patent. The map in it may be presumed to be the exactest that could then be had ; the Description in the Patent exactly agrees in all the places, names, there mentioned in or about Chesopeak Bay, even in that mistake where he calls the well known River Pocomoak by the name of Wighco, after Avhich the patent copies, and for this mistake those of INIaryland account from that map from 76 APPENDIX. wliencc some other maps, especially that partial one of Aug. Herman, calculated iu favour of the Lord Baltcmore, add both uames, viz : Wighco alias Pocomoak. Now the Latitudes being given in this map from the one end to the other, the parallel of forty degrees, the line contended for by INLaryland, is jtlaccd about six miles above the head of Chesopeak Bay, which is very nearly on a parallel or "West line from Newcastle uj^on Dela- ware, the place before mentioned, which is a second proof that this was truly the intended Limits of the Grant. But it is from hence further observable. That, notwithstand- ing the Lord Baltemore in his petition to the King (as the writer is credibly informed) prayed for the Grant of two Degrees of Latitude, that is 120 Jlariner's miles, from South to North, yet according to this map of Captain Smith's, which layes AVat- kins point (from whence the patent begins in the Latitude of 38 dco-. 10 minutes, there was no more intended bv the Grant than one degree and fifty minutes, or one hundred and ten such miles. But now on the other hand they have laid down the same Wat- kins point and its opposite ])oint. Look-out, called Cinquacke in the patent, which ai'c the Southern Bounds of J\laryland, in the Latitude of 37 deg. 48. rain, that is, 22 minutes more Southerly than it was understood to be, at the time the Grant M'as made, and when it was to extend to the Fortieth Degree, as 'tis called. From whence, were Maryland to be confined to the same length Noi'thwards that by this map (which unquestionably was their rule) was intended to be granted, it would extend, supposing the latter observation right, no farther than to 39 deg. 38 min. and yet contain the full length that was at first intended for it. But what most effectually clears up the point as well in rela- tion to Delaware Bay as the Intention of the Grant is this — In the beginning of the Description of IMaryland the Eastern part of it is called part of a Peninsula, (the rest of it being reserved in the patent to Virginia) said to lie between the Ocean on the East, and the Chesopeak Bay on the West, where Delaware Bay is not taken notice of, a small i^art only of the whole peninsula being bounded by that Bay. Now if it be a peninsula, as it really is, it must have its Isthmus or narrow neck of land, which is truly made by Chesopeak Bay bending iu to the East^vard, at the head of it, as appears clearly by all the draughts, and thereby the greatbranch of Elk draws so near to Delaware, that it is not APPKXDIX. 77 oljove 10 miles distant from the Bite tliat bends in "Westerly, just below Newcastle, where the Isthmus is effectually made. And this falls so near to where Smith placed the parallel of 40 (for to the eye his map makes that parallel fall in very nearly M'ith the head of Elk, which he calls Gunters Harbour) and so fully confirms what has before been advanced, that to stretch Slaryland any further would be to doe Violence to the express words of all the parts of the grant itself, as well as to its mani- fest Intention. For, whereas the Bay from the Capes lies to the Westward of the North, the River above the town of Newcastle takes quite another course, no less than about five points of the compass to the Eastward, and Susquchannah Ilivei; bending Westwai'd, and considerably more so than tlie maps lay it do\vn, these two Rivers diverge so much, and are so far afterwards from making anj-thing like an Isthmus that at the town of Phil- adelphia they are no less than sixty miles distant on a streight Westerly line, as on a certain occasion it lias been measured through the woods. From all these considei'ations thei"efore, viz : The Grant being confined to the Bay which at the utmost cannot exceed Newcastle. The Latitude as given by Smith's map, from whence Maryland was described, which falls nearly in with Newcastle, and the peninsula having its isthmus near the same place, 'tis presumed there can be no room left to doubt Avhere Maryland ought to end. This being thus far settled, the next to be considered is the Grant for Peusilvania, M'hich in the Letters Patent of Kiugc Charles the 2d for that Province, bearing date the 4th day of March, A. D. 1G80, is thus described, viz : " All that Tract or parcel of Land in America, with all the Islands therein con- tained, as the same is Bounded on the East by Delaware River Jvom 12 miles distanec Northwards of Newcastle Town unto the three and fortieth Degree of Northern 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 said River unto the three and fortieth degree. The said lands to extend Westward five degrees of Longitude, to be computed from the said Eastern Bounds, and the said lands to be bounded to the North by the Beginning of the three and 78 APPENDIX. fortieth Degree of Northern Latitude, and on ilie South by a circle drawn at 12 ms. distance from Keircastle, NoiihuMrd and Westward, unto the beginning of the fortieth degree of Northern Latitude, then by a streight line Westward to tlio limits of Longitude above mentioned." Here Pensilvauia begins at a determinate fixed place, viz. at twelve miles distance from Newcastle Town on Delaware River, which Town with a circle of land 12 miles round it, (and all the rest below on that Bay was reserved by the King to his Brother, the Duke of York, who afterwards granted it to William Pcnn,) as Maryland also begins at a known place, viz. Watkins point ; and it reaches Northwards to the three and fortieth degree, but this is afterwards called the beginning of that degree, which, if the reckoning begins at the Equinoctial, would extend it only to the end of the two and fortieth, or the parallel of 42 compleat, by which rule were the fortieth degree to be taken in the Charter for Maryland, they would reach no farther than to 39 compleat. Pensilvauia, by the pateut for it, extending Southwards to the beginning of the fortieth degree which is the parallel of 39. But waiving this, the Southern Bounds of Peusylvania on that side are the Northward and AVestward parts of a circle drawn about Newcastle Town at 12 miles distance from it; so that it ought to extend as far South as the said Town at that distance, that is, it ought at the back of the Circle to come down to a parallel drawn Due West from Newcastle, which still exactly agrees with the Boundary to which 'tis hoped it has been abundantly proved that Maryland ought to be Limited, Inso- much that taking both Grants together they as exactly corres- pond as if they had been both done at the same time and by the same hand, saving that at the time of the latter Newcastle was known to be on other right. Thus have the Rights of both Provinces in relation to their Boundaries on each other been freely stated and cleared up, ac- cording to which were a Division Line run by consent, or a sufficient authority, it would give each their due and putt a final period to all differences on this head, and render all those con- cerned in the disputed lands quiet and easy. But instead of this, the late Lord Baltemorc accounting nothing less than the Parallel of 40 Degrees to be his right, about the year 1682, and soon after the Grant of Pcnsilvania APPENDIX. 79 to its proprietor, being then in Maryland, resolved to find out tliat Degree and by it fix his Boundary, and to extend his claim along Delaware Bay, etc. notwithstanding the lands upon it had been cither in the possession of another nation, or on another right from before tlie date of his patent, of which more here- after. Accordingly he took Avitli him the Surveyor General of his province, and divers other Surveyors, with several com- manders of ships then in Maryland, who M-ere artists. And accompanied with these and others of his principal officers, with divers Instruments, especially one large Quadrant, they took tlicir station on Palmer's Island, near the mouth of Sasquehan- nah River, which is the head of the Bay, and tho' some of the commanders could not before be perswaded that the Latitude of 40 reached so high, yet after two days trial (as the writer has thy the Right Honourable the Lords of tlie Committee of Council for Plantation Affairs. PEESEXr. Lord President Viscount Falmouth Duke of Grafton Viscount Barrington Earl of Shaftesbury Lord North Earl of Marchmont Lord Sandys Earl of Harcourt James Stuart Slakcnzie Escp.-. Earl of Hillsborough Lord Chief Justice Wilmot Viscount Weymouth Thomas Townshend Esquire. Your Majesty having been pleased by your order in Council of the 26th of June 1767 to refer unto this Committee an hum- ble Petition of the proprietaries of the Provinces of Maryland and Pcnsilvania praying your Majestys Confirmation of Sun- dry agreements and Proceedings respecting the Boundaries of those Provinces. The Lords of the Committee in obedience to Your Majestys said order of Reference, did, on the 24th of Au- gust 1767, take the said Petition into Consideration, and thought proper to refer the same to the Lords Commissioners for Trade and Plantations for their Consideration and opinion ; and the said Lords Commissioners having Transmitted to this Commit- tee a Report made to them by Your Majesty's Attorney and So- licitor General thereupon, their Lordships this day resumed the consideration of the whole matter, and do agree humbly to Re- port, that it may be Advisable for Your Majesty to give the Testimony of Your Royal approbation to the said Agreements and Proceedings so far as the same concern the disputes for- merly subsisting between the petitioners themselves, and so as such approbation shall not be construed in any manner to di- minish or affect Your Majestys Claim of Right to the thi-ee lower Counties of Newcastle, Kent and Sussex, and so that the same be without Prejudice to any Prerogative, Power, Property, APPENDIX. 123 Title or luterest of Your Majesty, Your Heirs and Successors, ill or to the said Territories, Districts, or Tracts of Land, or any part thereof, and also to any Estate or Interest of any of the I'lanters, Proprietors, Tenants or Occupiers of and Lands, Ten- onients, or Hercditements, lying within tlic same, which the pe- titioners had not a Right or Power, by A'irtuc of the respective Charters or Grants, under which they claim to bind or Con- clude. To tlie Kings most Excellent Majesty in Council. The Humble Petition of the Right Honourable Frederick Lord Baron of Baltimore in the Kingdom of Ireland true and absolute Lord and proprietary of the province of Maryland and of Thomas Peun and Richard Penn Esquires true and absolute l^roprietaries of the Province of Pennsylvania and three Lower Countys of Newcastle Kent and Sussex on Delaware in America — most humbly sheweth : That divers long Controversies and Disputes have Subsisted between your petitioner Lord Baltimores Ancestors and William Penn the Father and John Penn deceased the Brothers of Your petitioners Thomas and Richard Penn and Your Petitioners Thomas and Richard Penn from the year 1G83 down to 1732 toucliing the Bounds and Limits of the said Provinces of Mary- land and Penusilvania and touching the Bounds and Limits between the province of Maryland and the said three lower Counties. That in order to put an End to the said Disputes and Contro- versies certain Articles of Agreement bearing Date the 10th Day of May 1732 were entered into between Charles Lord Baltimore deceased the Father of your petitioner the Lord Baltimore of the one part and the said John Penn and your Petitioners Thomas and Richard Penn Sous and Devisees under the Will of the said William Penn their late Father of the other part AVhereby it was agreed in tlie manner following (that is to say) First. That thcplau Printed in the Margin which contained a ]\Iap of the peninsula therein mentioned and also of the Tracts of Ground wherein the province of Maryland (or part thereof) tiie said three lower Counties part of the province of Penusil- vania and part of Virginia do lye is a true Copy of tliose which had been sent over from America to the parties by their re- 124 ArrENDix. spective Agents in those parts for their assistance in the settling the said Disjuitcs and by which the said Agreement was to be Explained and Understood. Second. That there should be the Circle mentioned in the Charter of Pennsilvania and Deed of Bargain and Sale or Feoff- ment of Newcastle therein mentioned (or so much thereof as is requisite) drawn and marked out at the twelve miles distance from the Town of Newcastle \vhich twelve INIiles should be twelve English Statute IMiles. Third. That a due East and West Line should be drawn across the said Peninsula (or across so much of it as should be requisite) such East and West Line to begin on the East part at the place in the said Map called Cape Hinlopen which lies South of Cape Cornelius on the Eastern Side of the said Peninsula towards the INIaiji Ocean and at the point of the said Cape and to run towards the western side of the said Peuinsula which lies upon the Chesopeak Bay but to stoi^ in the Exact Middle of that part of the same Peninsula when so riuming a due East and "West Course. Fourth. That from the M-esteru point or End of the said East and West Liue (which A\'csterii Point or End should be just half way across tiie said peninsula) a straight Line should run Northward up the said jieninsula (and above the said peuinsula if it should require it) till it should so touch the Western part of the Peripheiy of the said Circle as to make a Tangent thereto. The said Strait Line (as at that present apjirehended) would run pretty near South and North (but however it might bear on the Compass) such Strait Liue should be run Northward up tlie said peninsula and above the said peninsula if it should require it) and should begin at or from the Western point or End of the aforesaid East and West Line and should run until it should touch and make a Tangent to the Western part of the periphery of the said Circle and there the said Strait Line should End. Fifth. That at the Northern point or End of the said Strait Line a Line should begin and should from thence run due North above the said peuinsula but so flir only until it should come into the same Latitude as fifteen English Statute Miles due South from the most Southern part of the City of Philadelphia. Si.vth. That a due East and West Line should be run iu manner following. It should begin at the Northern point or APPENDIX. 125 End of the said due South and North Line and should from tlicuce run duo West cross Susquchannah Elver to the utmost ^^'cstern Extent of the said Province of Pcunsilvania or so far in part tliereof as sliould be tlien requisite in regard tliat as tlie same M'as to be a due East and West Lino the beginning part thereof might be sufficient to continue tlic same by wlien further Occasion shouki require and when the Lands Westward in the said provinces of Maryland and Pennsylvania sliould be better settled and that it would occasion a very Great Expense and likewise be then needless to run the same to the utmost Extent Westward of the said province of Pennsilvania however tlie same should (then) l)e run across Susquchannah Eiver and about five and twenty English Statute Miles further on tlie "\^"estcrn side of the said River. Seventh. That tlie part of a Circle then drawn with Red Ink upon the said plan and the Red Lines also drawn there upon A\ere then drawn to serve as an Explanation to the said Agree- ment but not witir Exact Certainty in regard the said plans so sent over liad neither scale nor compass to them. Eighth. That the first above meutioned due East and West Line to run from Cape Hinlopen to the middle of the Peninsula and" the said Strait Line to run from the Western point thereof Northwards up the said Peninsula (and above the said Peninsula if it should require it) 'till it should touch or make a Tangent to the Western part of the Periphery of the said Twelve nfiles Circle and tlie said due Soutli and North Line to run from such Tangent 'till it should meet with the upper or more Northern East and AYest Line and tlic said upper East and AVest Line to begin from tlic Northern point or End of the said South and North Line and to run due A^'estward at that present Cross Susquchannah River and five and twenty Englisli Statute Miles South of the Latitude of the most Southern part of the said City of Philadelphia were and should be and at all times for ever tliereafter should be allowed to be the true and Exact Limits between the said province of Maryland and the said three Lower Counties of Newcastle Kent and Sussex and between the said provinces of Maryland and Pcnsilvania, excepting only, tliat in Case the said north Line from tlie Tangent of the Circle of Newcastle shouki break in upon the said Circle in such Case 126 APPENDIX. ■ SO mucli of the said Circle as should be cut off by the said Line should belong to and be part of the County of Newcastle. Ninth. That the said Charles Lord Baltimore and his Heirs and Assigns on his part and the said John Peun and your peti- tioners Thomas and Richard Penn and their Heirs and Assigns on their parts should by proper powers and Instruments within two Months appoint a sufScieut Number of proper persons not more than seven on each side to be their Commissioners with full power to the said seven persons or any three or more of them for the actual running marking and laying out the said part of a Circle and the said Lines which said Commissioners should give due Notice to each other and should fix upon a time to begin and proceed in the running the same and the same should be begun at the farthest some time in October then next and be proceeded in with all fairness Candour and Dispatch and the said Lines should be marked out by Visible Stones Posts Trees Pillars IJuildings Landmarks or other Certain Boundaries which might remain such Boundaries to be marked on one Side with the arms of the said Charles Lord Baltimore and on the other side M'itii the arms of the proprietors of Peu- silvania and such Lines should be Compleatly so run (as far as by the said Agreement was intended) on or before the 25th day of December 1733, and when so done a true plan and survey thereof with the best and most certain Descriptions that could possibly be given of the same should be made up Signed and Scaled by the said Commissioners on both sides and by their principals and should be Entered in all the publick Offices in tlie said several provinces and Counties and moreover it should be recommended by the respective proprietors to the Assemblies of the said several provinces and Counties forthwith to pass Acts of Legislature for the Visitation upon Certain Fixed Days to be agreed on on both sides (at least ouce in every three Years) and for the Continual Reparation of tlie said Boundaries and Bound Marks and that no Disputes might arise tliereafter concerning the same. Tenth. That the said Charles Lord Baltimore for himself and his Heirs did tliereby for ever renounce release and quit claim unto the said John Penn and your petitioners Thomas and Richard Penn and their Heirs All Rights Titles Interest Powers Prerogatives Claims Demands and Pretensions to the said pro- APPEXDIX. 127 vince of Pensilvania and to the said three lower Counties of i^ew Castle Kent and Sussex to be so bounded as aforesaid (part at least of the said three lower Counties being then known to he Comprised within the Bounds mentioned in tlie said Charter of Maryland) and did at the request and Cost of the said Jolm Penn and your petitioners Thomas and Richard Peun and their Heirs agree to Grant Convey and Assure in the most effectual manner the said Province of Peunsilvania and the said three Lower Counties to be bounded as aforesaid free from all Incum- brances by Cecilius Lord Baron of Baltimore Great Grandfother of the said Charles Lord Baltimore Charles Grandfather of the said Charles Lord Bajtimore Benedict Father of the said Charles Lord Baltimore or by him the said Charles Lord Baltimore his Heirs or Assigns excepting such grants and Agreements to Planters as therein after mentioned unto the said John Penn and your Petitioners Thomas and Richard Peuu and their Heirs To hold unto the said John Penn and your Petitioners Thomas and Richard Penn and their Heirs To the use of them and their Heirs for ever And on the other ILmd the said John Penn and your Petitioners Thos. and Richard Pcnu for themselves and their Heirs did thereby for ever Renounce and Quit Claim unto the said Charles Lord Baltimore and his Heirs All Riirhts Titles Interest Powers Prerogatives Claims Demands and Pre- tensions to the said Province of Maryland to be so bounded (part whereof when so bounded being apprehended to be Com- prised within the Bounds mentioued in the said Charter for Pensilvania) and should also at the request and Cost of the said Charles Lord Baltimore and his Heirs Gi'ant Convey and As- sure in the most Effectual manner the said province of INIary- land to be so Bounded as aforesaid free From all Incumbrances by William Penn the Grandfather 'William Peun the Father S^jringett Penn Esqr. deceased William Penn the son all therein mentioned John Penn and your Petitioners Thomas and Richard Penn their Heirs and Assigns excepting such Grants or Agree- ments to Planters as is therein after mentioned unto the said Charles Lord Baltimore and his Heirs To hold unto the said Charles Lord Baltimore and hLs Heirs To the Use of him and his Heirs for ever. Eleventh. Whereas during the Disputes which had theretofore subsisted and then were accomodated divers Persons under 128 APPENDIX. Grants made and Granted from tlie said Charles Lord Baltimore and his ancestors before the fifteenth day of May 1724 might have Cleared Occupied and possessed several Parcels of Land •within the Limits and Bounds thereby Yielded and agreed upon for the said province of Pensilvania and for the said three lower counties and in like manner other persons under Grants made and Granted from the said John Penn and your Peti- tioners Thomas and Richard Penn or their ancestors before the said 15th Day of May 1724 might have Cleared Occupied and Possessed several Parcels of Land within the Limits and Bounds thereby Yielded for the said Province of Maryland and it might be proper to Quiet such -Occupiers in thciru'espective possessions (which might otherwise be disturbed by the agreement of the Proprietors) under some Restrictions It was therefore mutually ao-reed that in order to the Information of the Parties each of the said proprietors should have full Liberty to take Copies at their Costs of all Grants &e. whicli at any time before the said 15tli Day of JNIay 1724 had been made or Granted by the re- spective proprietors or tlieir ancestors and under M-hich any of the said Occnjjiers did Claim any such parcels of Land and in order to Quiet and settle such Occupiers every of them might upon request and payment of the accustomed Fees, in such Cases only have new Grants or Patents from the respective Propi-ie- tors within whose Territory their Lands by virtue of or accord- in£r to asi'ccmcnt should lye for the like Estate and Interest as mentioned in their Original Grants upon Condition that they did first attorn and become Tenants to their respective Proprie- tors within whose Territories the Lands then lay according to the agreement and' did submit themselves in all things to the Government thereof and did pay to the New Proprietor (unless it should be disi^ensed with by him) all such Fines Rents and Arrearages of Rents and Duties as by their Original Grants were to have been paid to their former proprietor and which had not then been really paid To the Use of such their former proprietor and for the time thence forwards such occupiers should be put upon the like Foot and Condition with the rest of the occupiers and Tenants who held Lands in such parts of the said respective provinces and Counties as had never been in Contest and such occupiers and Tenants claiming originally under another proprietor as aforesaid should hold their Lands and APPENDIX. 129 have patents thereof Granted them by their new proprietors subject to tJie like Fines Rents Duties and Services as the other Land holders were and had been generally subject to in the respective provinces and Counties to which they sliould belong with a proviso therein that in Case any persons during the Dis- putes which had subsisted had taken double Titles (that is to say) from l)oth the said proprietors under wliich they had shel- tered themselves by turns against each of the said proprietors And also in Cases wliere any persons during the said Disputes had of their o\vn authority seated themselves down upon any parcels of Land without Lycence or authority from either of the said proprietors such Persons in respect of such Lands were by no means to be Included in this Article but werc (however) to be treated with Moderation and \vith some regard and the more so' in Case they had theretofore actually paid the Usual Quit Rents to either of tiie said Proprietors and Provided they should Surrender their former Grant and Submit to hold only under the proprietor as the Case might bo. Twdfih. That in Case the parties could coucludu upon any further Clauses in favour' of the Occupiers of any Lands within the Bounds theretofore disturbed the same should be contained in a subsequent agreement between them. That the said Charles Lord Baltimore being not willing to Ijerform the said agreement did on the 8th day of August 1734 present a Petition to His Majesty insisting that the lower Coun- ties were within the Limits of His Grant and praying that His Majesty would Grant further Letters Patent to Confirm to him and his Heirs the ■\vliole of such part of the pem'nsula as is con- tained in the Limits of his Charter. That on the lOtli day of December 1734 Your petitioner Richard Penn (on behalf of himself and his two Brothers then in Pennsilvania) petitioned the King pi'aying that Lord Balti- more's Petition might be dismissed. That upon the IGth day of Januaiy 1734 the Lords of Trade (to whom Lord Baltimores Petition had been referred) made their Report and on the lOtli day of May 1735 the Lords of the Council upon Consideration of this Report and of the peti- tion of your petitioner Richard Penn and hearing Council Re- jjorted that it was their opinion that the Considerations of the said petitions should be adjourned to the End of Michaelmas 130 APPENDIX. Term to give an opportunity for the said John Peun and \our petitioners Thomas and Richard Penn to bring a Bill to obtain Relief on the said articles of agreement as they should be ad- vised and that after the Expiration of the said Term either party should be at Liberty to apply to the Committee of Coun- cil for plantation affairs as the nature of the Case might require. That the said John Penn and your petitioners Thos. and Richard Penn in pursuance of the said last mentioned Order in Council on or about the 21st da}' of June 1735 Exhibited their original Bill of Complaint into His Majestys High Court of Chancery in Great Britain against the said Charles last Lord Baltimore as Defendant thereto -which Bill was afterwards amen- ded and Sundr}' Bills of Revivor and Supplemental Bills were afterwards filed fi-om Time to Time in the said Cause upon the Decease of the said John Penn and as other occasions required by which several of the Children of the said Richard Penn and the Executors in Great Britain of the said John Penn deceased were additionally made Coplaiutiffs and also his Majestys Attor- ney Gcuei-al and sundry other persons were additionally made other partys Defendants thereto By which said Bill the plaintitis the parties in the said Cause prayed (amongst other matters) that they might be quieted in the possession of the said three Lower Counties and that the said Defendant Charles Lord Baltimore might be Decreed to Desist from giving them any further Trouble or ilolestation by renewing his Claims under the said Bill mentioned and that the said Articles of the 10th day of May 1732 might be decreed to Exist and be in full force and virtue and might be forthwith Specifically performed and carried into full Execution and that all necessary Directions might be given and that the pretended Doubts set forth in the Bill as to the fixing a Centre for tlie Circle round the Town of Xew Cas- tle and as to the Dimensions of the said Circle or distance from the said Town at which it was to be marked out and any other Doubt or pretended Difficulty that the Defendant the said Charles Lord Baltimore had or pretended to have relating to the said Articles or the Execution and performance of the same might be removed by the Decree of the Court and that the said Defendant might then and might again (after tlie said Lines should be run in a more certain and particular manner pursuant to His Covenants in the said articles) make further Conveyances APPENDIX. 131 and Assurances to the Plaintlfts their Heirs and Assigns of the said Province of Pennsilvauia and of the said three Lower Counties to be butted and bounded according to the Intent of tlie said articles and of all his Right Interest Pretensions Claims and Demands in and to tlie same and be Decreed to pay all the Costs and Expenses of the Commissioners and otherwise rela- ting to the Executing the said agreement of May 1732 and like- wise all the Costs which the plaintiffs had been put to by Reason of the Breach and nonperformance on the part of the Defend- ants of tlic said Articles of Agreement and by Reason of the said Petition of the said Defendant presented to His Majesty on the said Eighth Day of August 1734 and that the Plaintiffs might have all such further and other Relief in the premises and in such other manner as should be Consistent witli Justice and Erpiity. That the said Charles late Lord Baltimore put in his Answers to the said Bills, and thereby (amongst otlier things) insisted on Fraud and Imposition in obtaining the said Articles of Agree- ment and that the same were Void and Voluntary and without Consideration and therefore sayd that he hoped the plaintiffs should not have any such Relief as was prayed and that the said Articles should not be carried into Execution but be delivered up to be Cancelled and that the plaintiffs should be decreed to pay his Costs. Tliat the said Cause Avas carried on at a great Expense and being regularly at Issue great Numbers of \yitnesses were duly Examined therein on each side botii in America and in Great Britain after which the said Cause came on to be heard and was heard before the late Lord Chancellor of Great Britain in presence of Council learned for all jJarties on or about the 3rd ■ 4th 7th 8th 9th 11th and loth Days of May 1750 and upon the said 15th day of May 1750 the said late Lord Chancellor decreed that the said Articles of the 10th day of May 1732 and the several Matters therein Contained should be performed and carried into Execution by and between the said parties and every of them and to that End it was further Ordered that the plain- tiffs your petitioners Thomas and Richard Pcnn in their own Right and as Standing in the place of the said John Penn deceased and the Defendant the Lord Baltimore sliould before End of three Months from that Day Execute under their Hands 132 APPENDIX. and Seals two scvei-al proper Instruments appointing and aiitlior- izing proper persons not more tlian seven on each side M"it]i full power to the said seven pei'sous respeetivcly or any three or more of them for the aetual running the part of a Circle and the several Lines in the said articles mentioned and such Commis- sioners were to give Due Xotice to each other aud to fix upon a time to begin and proceed in the running the same. Aud that the same should be begun at the furthest in the month of No- vember then next and be proceeded iu according to tlie said Articles and that the said Lines should be marked out by visible Stones Posts Trees Pillars Buildings and Landnfarks or other certain Boundaries Avhich might Remain and should be marked ou one side with the Arms of the said Defendant the Lord Bal- timore and ou the other side with the arms of the Plaintiffs the Penns aud that such Lines should be compleatly run qn or be- fore the last Day of April 1752 and when so done his Lordship further ordered that a true and Exact Plan and Survey thereof with the most Exact Discriptions that could be given of the same should be made up signed and Sealed by the said Commis- sioners on both sides and by their principals and be Entered in all the Publick Offices in the provinces of Maryland and Peun- silvania and the three lower Counties of Newcastle Kent and Sussex aud that a true Copy of such respective Instruments for ai)pointing Commissioners when prepai'cd. should be delivered by the Solicitor of the one party to the Solicitor of the other party and in Case the jiartics should diifer about such lusti'u- ment His Lordship further Ordered that it should be referred to Mr. Spiccr one of Jila^ters of that Court to Settle the same, and two (iucstions in particular liaviug been raised in America by the Commissioners formerly appointed by the said Defendant the Loi-d Baltimore and being then made iu that Cause (Vizt) where the Centre of a Circle agreed by the said Articles to be drawn about the Town of Newcastle ought to be fixed and whether the said Circle ought to be of a Eadius or Semidiamiter of Twelve Miles aud a third Question having been also made in the said Cause vizt At what Place the Cape called iu the said Articles Cape Hiulopeu was Situated His Lordship declared that he was of opinion that according to the true Intent and Construction of the said Articles the Centre of the said Circle ought to be fixed in the J.Iiddle of the town of Newcastle as near as the same APPENDIX. 133 could be computed and that the said Circle ought to be of a Eiidius or Scmodiauiitcr of twelve iNIilcs and that Cape Hiulopen ought to be deemed and taken to be Situated at the Place where the same M'as laid down and described in the Plan annexed to the said Articles and therefore His Lordship farther ordered and Decreed that the said Articles should be carried into Execu- tion accordingly and after the said Limits and Boundaries should be set out and ascertained by the said Commissioners His Lord-' shij] ordered that the Plaintiffs your petitioners Thomas and Richard Penn in their own Right and as Standing in the Place of the said John Penn Deceased and the Defendant the Lord Baltimore should respectively Release and Convey to each other and their PIcirs the respective Rights Titles Interests Powers Prerogatives Claims Demands and Pretensions in or to the respective Territories Districts and Lands severally allotted to them according to the tenth Article of the said Agreement at the Costs and Charges of the person to whom such Release autl Con- veyance should be made and all proper parties were to Join in such Releases and Conveyances as the said blaster should direct. But the said Decree was to be without Prejudice to any Pre- rogative Power Property Title or Interest of His Majesty his Heirs and Successors in or to the said Districts or Tracts of Land or any part thereof And also to any Estate or Interest or Possession of any of the said Planters Proprietors Tenants or occupiers of any Lands Tenements or Hereditaments lying within the same "which the Parties to the said articles had not a Right or Power by Virtue of the respective Charters or Grants under which they Claimed to bind or Conclude and in Case His Majesty his Heirs or Successors should Insist upon any Power Title or Eight whatsoever cither on behalf of himself his Heirs or Successors or of any of his or their Subjects residing in or being Possessed of or Interested in any Lands Tenements or Hereditaments lying within any of the said Territories Districts or Tracts of Land so as to hinder or obstruct the EfiPectual Execution or performance of the said ^Vrticlcs or any part thereof then and in ever}- such Case any of the parties were to be at Liberty to apply to the Court from time to time as they should be advised and his Lordship reserved the Consideration of any further or other directions to be given as between the Plaintiffs and the Defendant the Lord Baltimore and the Defendants 134 ArPENMX. claiming and "William Penn Esquire deceased and farther ordered that the PlaiutifTs should Pay uuto the Defendant the Earl Pow- Ictt his Cost of the said Suit to be Taxed and that the Defend- ant the Lord Baltimore should pay unto the said Plaintifi's their Costs to that Time to be Taxed and reserved the Consideration of the subsequent Costs and all further Directions until the time tiierein Limittcd for performance of the said Articles should Ijc Expired and any of the parties were to be at Liberty to Resort to the Court as there should be occasion which Decree hatli since been duly Signed and Enrolled. That after pronouncing the said Decree the said Charles Lord Baltimore submitted thereto and in obedience thereto Com- missions were respectively Executed by him and by your Peti- tioners Thomas and Richard Penn authorizing sundry persons as their respective Commissioners to caiTy the said Articles of Asrreoment and Decree into Execution and to run tlie Lines part of a Circle and Boundaries so agreed and Decreed and the Commissioners proceeded tiierein but in the Course of such their proceedings sundry other objections were raised in America to some of the said Work by the Commissioners on the part of the said Charles Lord Baltimore. That thereupon your petitioners Thomas and Richard Penn on or about the IGth day of March 1750 presented their humble petition to the said late Lord High Chancellor pursuant to the Reservation in the said Decree (humbly setting forth the new objections which had been so made and praying (amongst other things) that it might be Declared that the Circle Round the Town of Newcastle ought to be at twelve Miles Distance from the Centre according to Ilorizcmtal and not Sujjerficial Measure and that the fifteen Miles due South of the southermost part of the city of Philadelphia ought to be Computed according to the like Measure and the said petition came on to be heard before the late Lord High Chancellor on or about the 27th and 29th Days of the same Month of March but in the year 1751 in tlie Pres- ence of Council for the said PlaiutiQs and for the said Charles Lord Baltimore and the said Lord High Chancellor on the said twenty-ninth day of March 1751 made an Order to the foliow- ino- Effect. His Lordship declared tliat the part of a Circle mentioned in the said Decree to be drawn round the Town of Newcastle ought to be at twelve Miles Distance from the Centre APPENDIX. 135 according to Horizontal and not Superficial Measure and that the fifteen Miles due South of the Southermost part of the City of Pliiladelplna ought to bo Computed according to the like measure and did order that the Commissioners on both sides should observe that Rule in carrying the said Decree into Exe- cution and reserved the Consideration of the Costs of that ap- plication in like manner as the Costs sulxserpient to tlie Hearing were reserved by the said Decree. That the said Charles Lord Baltimore died in England about the 23d day of April 1761 leaving your petitioner Frederick Lord Baltimore his only Son and Pleir tlieu an Infant and having after the Time of Pronouncing the said Decree duly made and Executed his last will and Testament in M'riting which was attested by three Witnesses and bears date on or about the 17th day of November 1750 and liaving thereby de- vised his Real Estate as therein mentioued and after payment of his Debts Legacies Funeral Charges and the Charges of his Executors Devised the residue of his personal Estate to his said son. That the Commissioners appointed by the said Charles late Lord Baltimore and by your Petitioners Thomas and Richard Peun proceeded in America towards the Execution of the said agreement and Decree especially in such parts to which no diffi- culties had been raised and particularly the said Commissioners before the twenty-sixth day of April one thousand seven hun- dred and fifty-one duly Signed a Minute in Writing and de- clared it to have agreed to by them- First that a due West Line should be run and marked out by visible Stones Trees Buildings or Landmarks to begin at a point on the verge of the Main Ocean (being at the Distance of 139 perches due East from a Stone fixed by the said Commissioners on the Xortheru part of the Land called Fenwick's Island) near to Four Mul- berry Trees there growing across the peninsula to the Bay of Chesopcak which fixed stone was marked on the side thereof turned to the South with the Arms of the Lord Baltimore and on the other side thereof turned to the North with tlie Arms of your petitioners Thomas and Richard Penn and Secondly that the said Point or Place of beginning should be agreed to be the Place where the Cape called in the articles Cape Hiulopen was Situated and that the said Line when so laid out should be es- 136 APPENDIX. teemed and be the East and West Line Avliich the said Commis- sioners ^ycre directed and Impowered to draw across tlie said Peninsula by virtue of their several Commissions according to the third Article of the said Agreement from the middle -n-here- of a Tangent I^inc was to be draAvn to the "Western Part of the Periphery of a Circle at twelve Miles distance from the Town of Newcastle subject nevertheless to the alteration or Confirma- tion by the Eight Honourable the Lord High Chancellor of Great Britain or the joint order or Direction of their Constitu- ents. That the said Commissioners and their Surveyors in Conse- quence of such their agreement began in their own persons to Execute the same and fix a Meridian Line and measured and marked out the said East and West Line due AVest from the said point or place of beginning on the verge of the Main Ocean and found the Extent of the said A^'cst Line from the Verge of the Ocean on the East part as fiir as to a certain place or AYatcr called Slaughters Creek on the AVcst part at which place or AVater the said Charles Lord Baltimores said Commissioners insisted the said Line should stop) amounted to sixty six Miles and two hundred and forty eight perches and a half But that when such Line was continued on farther AVest quite to the verge of the East side of Chesopeak Bay To which Bay (the Commissioners of your petitioners Thomas and Richard Penn insisted the same Line ought to run and extend) the same amounting to sixty nine ]\Iiles and 298 iierches. That the said East and AVcst Line when Extended AVest to the Verge of the Bay of Chesopeak runs through Taylors Island and through a small part of James's Island at or near the Southern end of the said James's Island. That the measuring and markingout the said East and AVest Line was a AVork attended with a large and heavy Expence to the parties and although some part of the said AVork was carried on by the Commissioners and Surveyors in America after the Day of the decease of the said Charles late Lord Baltimore in Great Britain Yet the same was bona fide carried on and Finished long before the' respective Commissioners in America received any Information thereof the Death of the said Charles Lord Baltimore and the consequence of Extending the said Line AA^est to the said Bay of Chesopeak was that according to the APPENDIX. 137 said Articles of Agrcepicut and Decree the said Tangent Line to be di-awu up tlio said peninsula and to make a Tangent to the "Western part of the periphery of the said Circle at twelve Miles Distance from the Town of Newcastle was to begin at the Middle of the said East and West Line, that is to say, at the dis- tance of thirty four of the said Miles and 309 perches from the said point or place of Beginning of the said East and West Line at the said East End of the same East and West Line. That your Petitioners Thomas and Richard Penn together with iSnndry of their Children and the Executors in Great Britain of their Deceased Brother the said John Penn on or about the 8th day of November 1754 Exhibited into the said Court of Chancery their Bill of Revivor and Supplemental Bill of Complaint against your petitioner Fi-ederick Lord Baltimore and "sundry other persons therein named as parties Defendants thereto and thereby stated the proceedings and the said Decree and Subsequent Order which had been obtained in the said former Cause against the said Charles late Lord Baltimore and also the proceedings of the said Commissioners in America and the new Question which was made by the Commissioners of the said Charles Lord Baltimore whether the said East and ^\'cst Line should Extend West across the said peninsula Quite home to the Bay of Chesopeak or should stop there at the said other place or Water called Slaughters Creek and also the Will and Death of the said Charles late Lord Baltimore and many other matters and thereby prayed (amongst other things) that the said former Suit the said Inrolled Decree and Subsequent Order and all other the proceedings therein Avhich abated by the Death of the said Charles late Lord Baltimore might be revived in full force against and be fully Compleatly and in every part thereof Obeyed Performed and Executed by all the Defendants or by such of them as claimed or should appear to have any Estate or Eight to the said province of Maryland and that all the Defendants might by. the authority of the said Court be decreed to obey the said Decree and that the said Defendants might shew Cause why the said Decree and Proceedings should not be revived and might answer the Supplemental matters con- tained in the said Bill and that the matter whether the said . East and West Line should stop at its Western End at Cheso- peak Bay or at any and Avhat particular place short of the said s 138 APPENDIX. Ba)'' might be settled by the Judgmeut of tlie said Court and for a discovery of all Settlements aud pretended Settlements or Agreements to settle the said province of Maryland and for further Relief. That the plaintiffs in the said Cause on or abont the 21st day of November 1754 obtained an Order of the said Court to re- vive the said former Suit and proceedings against Your Peti- tioner Frederick Lord Baltimore. That your petitioner Frederick I^ord Baltimore on or about the twenty second day of March 1755 put in his plea to Part and Answer to other Part of the said Bill of Pevivor and Sup- plemental Bill and by such his Plea insisted on certain Settle- ments said to be made of the said province of Slaryland by Indentures of Lease aud Eelease on the 30th and 31st Days of December in the Year of Our Lord 1698 and by other Inden- tures of Lease and Release of the 10th and 11th Days of July in the Year of Our Lord 1730 and that Your Petitioner Frede- rick Lord Baltimore bj' virtue of and under the said Settlements or one of them was seized to him and the Heirs ]\Iale of His Body of the Province of INIaiylaud which he pleaded in Bar to the Relief Sought by the said last mentioned Bill and Insisted that his Right and Interest to the said Provinces of INIaryland and Pensilvania and the three lower Counties or any of them ought not to be bound by the Articles Executed by His Fatlier. That the said plea was set down and came on to be in part ar- gued before the Right Honourable the late Lord Pligh Chancellor of Great Britain on or about the seventh day of May 1755 But the said IMca was not fully Argued or Determined and the ► Council for your Petitioner Frederick Baltimore then agreed to deliver over Copies of the. several Family Settlements and Agreements in Order to shew to the plaintifis that your Peti- tioner Frederick Loi'd Baltimore was not Bound by the said ai"- ticles or by the said Decree or Subsequent order and accordingly the agent of your petitioner Frederick Lord Baltimore did de- liver over unto the agent of your petitioners the said Thos. and Richaixl Penn Copies of one settlement of the said province of iMaryland bearing Date on or about the said 31st day of Decem- ber 1698 and made by Way of Lease and Release by Charles late Lord Baltimore the Elder late Great Grandfather of your Petitioner Frederick Lord Baltimore and by Benedict Calvert APPENDIX:. 139 then Son and Heir apparent of the same Charles late Lord Bal- timore tlie Elder and of another settlement of the said Province of Maryland bearing Date on or about the said 11th day of July 1730 and made and Executed by Way of Lease and Eelcase by Charles late Lord Baltimore tlic late Father of your petitioner Frederick Lord Baltimore and of a Certain Indenture of Covo- najits and Agreements relating to the said province of Maryland bearing date on or about the Dth day of ]March 1753 and En- tered into and Executed by your petitioner FredericJc Lord Bal- timore and Cecilius Calvert his Uncle. That your Petitioners the said Thomas and Richard Peun and other the plaintiffs after that they and their Council had considered the said Deeds did obtain an order bearing Date the 16th day of the same Montli of May 1755 That the plaintiffs might be at Liberty to amend tlieir said Bill and on or about the 6th day of December 1755 Exhibited a new Engrossment of their amended Bill of Revivor and Supplemental Bill of Com- plaint against your petitioner Fredericlv Lord Baltimore and several other persons as parties named for Defendants tlicrcto and thereliy Charged and put in Issue as Avell the several last mentioned proceedings of the said Commissioners in America as the Will and Death of the said Charles late Lord Baltimore Father of your petitioner Frederick liord Baltimore and the several Family Settlements and Indentures of Covenants and agreements relating to the said province of Maryland Copies wliereof had be~so delivered over as aforesaid and Insisted that your petitioner Frederick Lord Baltimore was bound by and ought to perform the said articles and the said Decree of the 15th Day of May 1750 and the said Subsequent order of the 29th day of March 1751 and also Insisted on the Validity of the said Commissioners last mentioned proceedings and prayed (amongst other things) that tlie said former Suit Inrolled Decree and Subsequent Order and all other the proceedings therein which abated by the Death of the said Charles late Lord Baltimore might stand and be revived and be fully and Com- pleatly obeyed performed and Executed by all the then Defts or by such and so many of them as Claimed or should appear to have any Eight or Interest in the said province of Maryland and that all the Defendants miglit by the Authority of the Court be Decreed to Obey the said Decree and if tlic Court 140 APPENDIX. should not think proper to Decree the Defendants siJecifieally to perform the said Articles that then Plaintifls might then have a Decree for a Discovery and Account of the Real and personal Assetts of the said Charles late Lord Baltimore and that the same might be paid to or secured for the plaintiffs as well for paying their costs as also for making them a Satisfaction for the very great Damages they had already incurred and for the much greater Damages they might thei-eafter sustain by the Breach and nonperformance of the said Articles and that the said De- cree and subsequent order might be decreed to be obeyed and Performed in all points by all the the then Defendants or by such as ought to perform and obey the same and by their respective Issues and by all pei"sons claiming by or under them and that the plaintiffs the proprietaries of Pensilvania might have the Decree and perpetual Injunction of the Court to Enjoy to them and their Heirs for ever the said Territories and Lands so 'Eeleased by the said Charles the last Lord Baltimore by the said Articles as against the Defendants Frederick Lord Balti- more Louisa Calvert and Cccilius Calvert and their Heirs and Assigns and their respective Issues and against all persons claiming under or in Trust for them and that the Costs Decreed to be paid and those reserved might all be decreed to be paid by tlie Defendants or by such of them as the same might Concern and that the Doubt touching the Extent Westwards of the said East and West Line to run across the said Peninsula might be cleared up and determined by the authority of the Court and for further and other Relief. That before any answer was put into the said amended Bill your Petitioner Frederick Lord Baltimore and your petitioners Thomas Penn and Richard Peun came to an amicable agreement of all their Differences in consequence of which by a certain Indentui'e (ready to be produced and verified) bearing Date the 4th day of July 1760 and made between your petitioner Fi'edei'ick Lord Baltimore as only Sou and Heirs at Law Devisee and Residuary Legatee of His Father Charles Lord Baltimore and as such or under some or one of the settle- ments aforesaid true and absolute Lord and proprietary of the province of Maryland in America of the one part and your jie- titioners Tliomas and Richard Penn as true and absolute propri- etaries of the province of Pcnnsilvania and three lower Counties of Newcastle Kent and Sussex on Delaware in America of the APPENDIX. 141 otlier part, after Eeciting amongst other Particulars herein be- fore mentioned It is "Witnessed for putting a final and perpetual End to all Disputes and Differences between the parties relating to the Extents Bounds and. Limits of the said Province of jNIaryland Province of Pcnnsilvania and the tkree lower Coun- ties of Newcastle Kent and Sussex on Delaware and in order that the same Provinces and Counties might respectively be peaceably possessed and quietly Governed by the respective pro- prietaries and that the Business of the Settlements and Improve- ments of the same might be carried on by the respective propri- etaries without farther Interruption and to as great a Degree as might be done and for the putting an end to that Excessive Expence which the parties on Both sides and their respective ancestors had long Sustained during the said Contests your j^eti- t loner Frederick Lord Baltimore for himself and his Heirs Ex- ors Admors and assigns and for each and every of them did ac- knowledge Testify and Declare and did also Covenant promise Grant and Agree to and w'ith your petitioners Thomas and Richard Penn and their Heirs Executors Admors and Assigns in manner following (viz) That the Commissioners who had been appointed by the said Charles Lord Baltimore and by your petitioners the said Thomas and Hichard Penn did duly proceed in the Execu- tion of such Commissions and did justly agree upon and deter- mine the true Spot or point for beginning from whence to mea- sure the due West Line across the said Peninsula which was agreed and directed by the said Articles of Agreement and De- cree That the said Spot or point or place for beginning such due West Line was and should at all times forever thereafter be es- tablished to be where the said Commissioners so agreed upon the same to be, namely at a point on the Verge of the Main ocean being at the distance of 139 perches due East from a Stone fixed by the said Commissioners on the Northern jDart of the Island called Feuwick's near to Four INIulberry Ti'ecs there growing and which Stone was marked on the side thereof to the South with the arms of the said Charles last Lord Baltimore and on the side thereof to tlie North with the arms of your Pe- titioners the said Thomas and Richard Penn That the said Spot of beginning such due West Line should at all times forever thereafter be Esteemed the point of Cape Hinlopen mentioned in the said Articles at which the East and West Line across the 112 ArrENDix. said Peninsula mentioned in the same Articles was intended to begin . that the said Commissioners and their Surv^eyors did rightly fix the due Meridian Line and did then jjroceed justly according to the said Articles and Decree and their respective Commissioners and did measure a true West Line from the said spot of beginning at the East End thereof quite across the said "Whole peninsula to the Verge on the Eastern side of the said Bay of Chesopeake at the AVest End thereof in Exact jiursu- ance of and Compliance with the said recited articles of Agree- ment and Decree and the True Intent and meaning thereof That the said commissioners did agree that the said West Line measured quite across the said ■whole peninsula to the extent of 69 miles and 298 Perches That the true length and Extent of the said West Line was and should at all times for ever there- after be Esteemed to be 69 miles aiid 298 perches and neither more or less and consequently the Exact middle of such West Line (whence the other Line was to begin which was to run up the said Peninsula till it made a Tangent to the Western part of the Periphery of the said part of a Circle at the Distance of twelve English Statute Miles Horizontally measured from the Court House in the said Town of Newcastle) was and should at all times for ever be esteemed to be at the Exact Distance of 34 of the said Slilcs and three hundred and nine perches so meas- ured West from the aforesaid of bcgiuuing of the said West Line as the same wei'e so measured as as aforesaid. That as the said Exact middle of the said Western Line (as then fixed and for ever agreed) would be a very material Bound or Corner mark between the parties two Different Ways so in ad- dition to or rather in ascertainment of that Part of the said for- mer agreement there should be at the joint expence of the said respective proprietaries and their Heirs one or more large and remarkable Stones erected and continued for ever there accord- ing to the Angle made by the said due "West Liue and by the said Tangent Line for dividing the said peninsula which Stone or Stones on the outward side facing towards the West and South should have the arms of your petitioner Frederick Lord Baltimore and on the Inward sides of the same facing towards the East and towards the North should have the arms of your petitioners the said Thomas and Richard Penn. That your petitioner Frederick Lord Baltimore and his Heirs APPESDIX. 142 and Assigns sliouki within thirty Days Execute one or more Commissions appointing seven proper persons or any number of tliem not less than three as Commissioners on his and their parts to run out all such parts of tlie said Circles Lines Marks and Boundarys as were not then Comjileatcd and to carry the said former Articles Decree and Subsequent Order and the Agree- ment in the said Indenture of July 17C0 into full and Compleat Execution, That such Commiss'rs should proceed with all Fair- ness and Dispatch : That neither your Petitioner Frederick Lord Baltimore nor his Heirs Executors or Administrators should at any time thereafter be consenting to assisting in or promote in an}' manner or lend his or tlieir Xames towards the Commencing or Defending any Suit whatsoever to be commenced or defended by any of the Tenants of Your Petitioner Frederick Lord Bal- timore by any of his Grantees or the Grantees of any of His Ancestors whereby the Right of Your Petitioners said Thomas and Eichard Pcuu their Heirs or Assigns to the said province of Pennsilvauia in America with all and Singular the Eights Eoy- alties I\Iembers and Appurtenances thereof and all those Terri- tories and Tracts of Laud called the three lower Counties of Xewcastle Kent and Sussex upon Delaware with tlieir Rights Royalties ]\Iembers and Appurtenances the said Province and Counties Bounded and to be bounded according to the Exteut Bounds and Limits agreed by the said Articles and Decreed by the said Decree and ordered by the said Subsequent Order of the 29th day of May 1751 and the true meaning of the said Inden- ture of July 17G0 might be drawn iu Question or Controverted. That Your Petitioner Frederick Lord Baltimore liis Heirs and Assigns would on request aud at tlie Costs and Ciiarges of Your Petitioners the said Thomas and Ricliard Pcnn their Heirs and Assigns Execute any farther matter and tiling Exclusive of the Acts thereby Stipulated and intended to be jicrformed at a joint expence which should any way be necessaiy to be done for rendering the said articles Decree and Subsequent order and the said Indenture of July 1760 most perfect and Effectual. That Your Petitioner Frederick Lord Baltimore would within three Days in liis own person duly acknowledge the Execution thereof aud his Consent that the same might be Inrolled before one of the Masters of the Court of Chancery to the Intent that the same might be Inrolled. That Your Petitioner Frederick Lord Bal- 144 APPEIs-DIX. timore would Avithin thirty Days after a Bill should be filed by Your Petitioners the said Thomas aud Eichard Pcun or their Heirs against your petitioner Frederick Lord Baltimore in the said High Court of Chancery for carrying the said matters and things contained in the said Agreement into Execution duly put in his Answer thereto and in such Answer should admit all such matters as in the said Indenture were by him admitted, and par- ticularly that your petitioner the said Frederick Lord Baltimore and all persons claimiug the said province of ilaryland under him should be bound to obey aud perform the said Articles and the said Decree and Subsequent Order of the said Court of Chanceiy and also the said proceedings of the said Commis- sioners in and about the said Spot of beginning of the said AYcst Line and in and about the said Meridian Line and in and -about the running: aud measuring the said Line due Avcst cross the said peninsula and in and about the true length and extent of the said Line as aforesaid and that such Bill and Answer should be settled with the Approbation of Council on both Sides.' Tiiat Neither in such Answer or at any other time should your peti- tioner Frederick Lord Baltimore his Heirs or Assigns or any of Ids or their Council or Agents demand any Costs to be decreed to him or them in respect to the said Suit then depending but the said Suit and all proceedings therein should be forthwith dismissed upon a proper application to be forthwith made by Your petitioner Frederick Lord Baltimore to the Court of Chan- cery as for want of Prosecution. That upon request made to your petitioner Frederick Lord Baltimore or to liis Clei-k in Court or Solicitor after such answer put in Your petitioner Frederick Lord Baltimore or his Clerk in Court or Solicitor should Instantly sign a full Consent for setting the said Cause down to be heard upon Bill and Answer. That your petitioner Frederick Lord Baltimore should by his Council appear Gratis and hear tiie said Cause at such Time as should be appointed for the same without being Served with a Subpena for that purpose. That at such hearing and on other necessary occasions Your petitioner Frederick Lord Baltimore aud his Heirs and Assigns and his and their Council aud Agents should Consent and Agree that a Decree should be pronounced against him and them agreeable in all respects to the true Intent and meaning of the said Indenture and further that Liberty APPENDIX. 145 should be therein reserved for cither party to apply to the Court for further directious as tliey should be advised and to pray no Costs to the Time of the hearing and to Consent that the subse- quent Costs should be reserved. That Your Petitioner Frederick Lord Baltimore his Heirs and Assigns should not at any Time oppose such Decree as should be made pursuant to the true meaning of the said Indenture or the signing and Inrolling such Decree And that in Case Your Petitioners the said Thomas and Richard Peuu or their Heirs or Assigns should at any time thereafter whether before or after the said Cause in Chancery should be heard be desirous to lay the said Indenture and the matters therein Contained by an humble petition before His J\Iajesty his Heirs or Successors in His Privy Council and hum- bly to pray his Majestys Royal Allov.ance Ratification and Con- firmation of the said former Articles of Agreement and the said Inrolled Decree and Subsequent Order of the said Court of Chancery and~bf the said Indenture to be for ever Established as between the respective proprietaries of the said j^rovinces and Counties for the j^cace and welfare of the same and of His i\Iajestys Subjects in those parts Your Petitioner Frederick Lord Baltimore his Heirs and Assigns should forthwith upon request join in and become a Co-Petitioner therein or otherwise with his and their own Hands sign a full Consent to such petition at the Foot thereof and should by all other fitting and j^roper means give his and their full Consent to the same cither in his and their own proper persons or by such other means as should be most Valid and Effectual. That after taking Notice that Your Petitioners- the said Thomas and Richard Penn and their ancestors by themselves or some of their Tenants Grantees or Agents under their Right and Title had been and then were in the actual possession of all the Lands Tenements and Hereditaments therein after Granted your Petitioner Frederick Lord Baltimore for the Ends and purposes aforesaid and in order to render the said Indenture most Valid and in Consideration of Five Shillings of Lawful Money of Great Britain to him paid by Your Petitioners the said Thomas and Richard Penn for himself and his Heirs did fully and absolutely Release Renounce and Quit Claim unto Your petitioners the said Thomas Penn and Richard Penn their Heirs and Assigns for ever All that the said Province of Penn- 146 APPENDIX. silvaiiia iu America -wUli all and Singular the Rights Royaltius Jlcmbers and Appurteuanccs thereof And all those Territories and Tracts of Land then Called the three lower Counties of Newcastle Kent and Sussex upon Delaware in America with all and Singular their and each and every of their Eights Royalties Members and Appurtenances the saiil province and Counties Bounded and to bo Bounded according to the Extent Bounds and Limits which were agreed by the said Articles and Decreed and ordered' in aud by the said Inrollcd Decree of the said Court of Chancery and the said Subsequent Order of the said Court of the 29th Day of March 1751 and according to the true Intent and meaning of the said Indenture of July 1760 and the Reversion and Reversions Remainder and Remainders Yearly and other Rents Issues and Profits and Arrears of Rents Issues and Profits of all and Singular the said Province of Pennsilvania and the said Three lower Counties of New- castle Kent and Sussex and of each of the same Aud all the Estate Right Title Interest property jiowcr prerogative Claim Demand and pretensions whatsoever of your petitioner Frede- rick Lord Baltimore and his Heirs of in and to the same and every part thereof Provided always and it \vas thereby Declared that neither the said Indenture nor any Clause therein Con- tained should Extend to the Right of any Grantee or Grantees and those Claiming under them to any the Farms Lands Tene- ments or Hereditaments then in the actual possession and occu- pation of all or any the Tenants or OccupicM-s of the said Pro- vince Lands Hereditaments and premises thereby Released which had been at any Time and in any manner theretolbre Granted by or under the Authority of Your petitioner Frederick liord Baltimore or any of his Ancestors. But that it should be Ijawful to and for all such Tenants their and every of their Heirs Executors Adm'(n's and Assigns from Time to Time and at all Times to hold and enjoy their said Farms Lands Tene-. ments and Heredits aud. every part thereof for and during such their several and respective Estates Terms and Interests in the same and every part thereof Subject nevertheless to and under the same Quit Rents Reservations and Services to be from thenceforth paid rendered and performed to the proprietaries of the said Province of Peusilvania for the time being as they the said Tenants and Occupiers and every of them were liable at the Time of and Immediately before the Execution of the said APPENDIX. 147 Indenture to have pny'd rondrcd and performed to the pro- prietary of the said province of Maryhrnd : Provided also that neither the said ludcuture nor any Clause therein should Extend to the Right of any Grantee or Grantees and those claiming under them to any of the Farms Lands Tenements and Here- ditaments which were situate on the West side of the River iSusrpichaunah and within one Qitarter of a IMile more North than the East and "West Line mentioned in the 6th Article of the said Articles and which had been at any time and in any manner theretofore Granted by or under the .iuthority of Your petitioner Frederick Lord Baltimore or anj' of his Ancestors and were then in the actual possession of all or any the Tenants or Occupiers of the said province Lands Hereditaments and premises nor to the Estate Right Title or Interest of any such Tenants or Occupiers in or to the said Lands and premises last mentioned But that it should and might bo Lawful for all such tenants their and every of their Heirs Executors Admors and Assigns To hold and enjoy their said Farms Lands Tenements and Hereditaments and every part thereof during all their several anil respective Estates Terms and Interests in the same and every of tliem and every part thereof subject to and under all the same Quit Rents Reservations and Services to be paid Rendered and performed to the proprietaries of the said pro- vince of Penusilvania for the Time being as they were liable at the Time of the Execution of the said Indenture to have paid rendered and performed to the Proprietary of Maryland. And it was thereby further "Witnessed that for the Considera- tions aforesaid Your petitioner Thomas Penn for himself and his Heirs Executors Administrators and Assigns and your peti- tioner Richard Penn for himself and his Heirs Exors Admors and assigns Did in like manner acknoAvledge Testify and Declare and did also Covenant Promise Grant and i\.gree to and with your petitioner Frederick Lord Baltimore his Heirs Executors Admors and Assigns in manner and form following (that is to say) Tliat the Commissioners who had been last so respectively appointed by the said Charles last Lord Baltimore on his part and by Your Petitioners Thomas and Richard Penn on their part did duly proceed in the Execution of such Commissions and did justly agree upon fix and determine tiie True Spot or point or place for beginning from whence to measure the due West Line 148 APPENDIX. across the said peninsula which was agreed and Directed by the said articles of agreement and Inrolled Decree That the said Spot or point or place for beginning such Due West Line was and should be at all Times for ever thereafter be established held taken and adjudged to be where the said Commissioners so agreed ujion iixed and determined the same to be, namely at a point on the Verge of the main Ocean being at the Distance of 139 perches due East from a Stone fixed by the said Commis- sioners on the Northern part of the Land called Fenwicks Island near to Four INIuUberry Trees there growing which Stone was marked on the side thereof turned to. the South Mitli the Arms of the said Charles last Lord Baltimore and on the side thereof turned to the North Avitli the Arms of j-our petitioners Thomas and Richard Penn. That the said spot or point or jilace of beginning such due AA'cst Line was and should at all Times for ever thereafter be Esteemed held taken and adjudged to be the point of Cape Iliu- lopcn mentioned in the said articles of agreement of the 10th day of Slay 1732 at which the East and West Line across the said Peninsula mentioned in the same Articles was meant and Intended to begin That the said Commissioners their Surveyors did in due manner rightly fix and Settle the true Meridian Line and did then i>roceed justly according to the said Ai'ticlcs and Decree and their respective Commissions and did measure a true "West Line from the said spot or point or jilace of beginning at the Ea.st End thereof quite across the said whole peninsula to the Verge on the Eastern side of the said Bay of Chesopeak at the West End thereof in Exact pursuance of and Compliance with the said recited articles of Agreement and Decree and the true Intent and meaning of the same. That the said Commissioners did find and agree that the said "West Line measured quite across the said whole peninsula to the length or Extent of G9 Miles aud 298 perches. That the True length and Extent of the said West Line was and should at all Times for ever thereafter be esteemed held taken and adjudged to be 69 Miles aud 298 perches neither more or less. That consequently the Exact middle of such West Line from whence the other Lino was to begin which was to run up the said Peninsula 'till it made a Tangent to the Western jxirt of the periphery of the said part of a Circle at the Distance of 12 APPENDIX. 149 English Statute "Miles Horizontally measured from the Court House in the said Town of ISTeweastle was and should at all Times for ever thereafter be esteemed held taken and adjudged to be at the Exact distance of 34 of the said Miles and 309 perches so measured AVest from the aforesaid Spot or point or place of beginning of the said "West Line as the same were so measured as aforesaid. That the said Exact middle of the said Western 'Line as then fixed and for ever agreed would be a very material Bound or Corner Mark between the parties two dif- ferent Ways so in addition to or ratlier in ascertainment of tiiat part of the said former Agreement there should be at tlie joint Expence of the said respective proprietaries parties thereto and their Heirs one or more large or remarkable Stones Erected or Set up and Continued for ever there according to the angle made by the said due West Line and by the said Tangent Ijine for dividing the said peninsula which Stone or Stones on the Inward side of tlie same facing towards the Ea'st and towards the North sliould have the arms of your petitioners Thomas and Richard Pcnn araved thereon and on the outward sides of the same lacing the West and towards the South sliould have the Arms of Your Petitioner Frederick Lord Baltimore Graved thereon. That your petitioners Thomas and Richard Penn and their Heirs and A'fesigns should and would witiiin the Space of thirty Days from the Date thereof prepare Execute and Issue under their Hands and Seals one or more Commissions appointing seven impartial and proper persons or any Number of them not. less than three as Commissioners on their parts to mark run out Settle fix and Determine all such parts of the said Circle Lines Marks and Boundaries as were not then Compleated and to carry the said former Articles of Agreement Decree and Subsequent Order and the Agreements therein contained into full and Com- plcat Execution in all respects whatsoever agreeable to the plain Intent and true meaning of the same former Articles Decree and Order of the said Indenture. That such Commissioners should proceed to Execute such Commissions with all fairness and Dispatch. That neitlier Your petitioner Thomas Penn his Heirs Ex'ors or Adm'ors nor your petitioner Richard Penn his Heirs Ex'ors or Adm'ors nor any of them should at any Time or Times thereafter be eonsentino- to aiding or assisting in or Encourage or promote in any manner 150 APPENDIX. wliatsoevei- or lend his or their or any of their Name or Names towards the commencing prosecuting or Defending any Suit or Suits Cause or Causes whatsoever to be Commenced Prosecuted or Defended in any Court of Law or Equity Avhatsoever by any of the Tenants of your petitioners Thomas and Richard Penu or cither of them or by any of tlieir or either of their Grantees or the Grantees of their or any of tlieir Ancestors whereby the Eight of your petitioner Frederick Lord Baltimore his Heirs or Assigns to the said province of INIarylaud in America with all and singular the Rigiits Royalties Members and ^Appurtenances thereof bounded and to be bounded according to the Extent Bounds and Limits which were agreed by the said articles of the 10th day of May 1732 and Decreed and Ordered in and by the said InroUed Decree of the Court of Chancery and the said Sub- sequent Order of the said Court of the 29th Day of May 1751 and according to the true Intent and meaning of the said Inden- ture might be drawn in Question or Controverted in any manner whatsoever. Tiiat your Petitioners Thomas and Richard Penu their Heirs and Assigns should and would on his and their parts at all times on request and at the Costs and Charges of your petitioner Frederick Lord Baltimore his Heirs and Assigns make do perform and Execute any further matter and thing (Exclusive of the Acts thereby stipulated to be performed at a joint Ex- pence) which should any way be necessaiy to be done for rend- ring the said former Articles of Agreement Decree and Subse- quent Order and the said Indenture most perfect Valid Sure aud efifectual at all Times for ever thereafter. That your petitioners Thomas and Richard Pcnn should aud would within three Days after your petitioner Frederick Lord Baltimore should have acknowledged the due Execution of the said Indenture in such manner as he had therein before agreed to do axwse the same to be Inrolled in his Majestys High Court of Chancery. That Your Petitioners Thomas and Richard Penfl should within thirty Days next after they could or might obtain an ' office Copy of such Answer as aforesaid which your Petitioner Frederick Lord Baltimore had therein before agreed to put in as aforesaid to the said Bill to be filed for the purposes aforesaid make proper application to the said Court of Chancery to liavc the said Cause set down for hearing l)y Consent upon r>ill and APPE>'DIX. 151 Answer at some eai'ly Day so soou as the Court should think fit to appoint for tliat purpose and should and would previously give Xoticc of such Intended Application cither unto your petitioner Frederick Lord Baltimore or unto his Clerk in Court or Solicitor in Order to have a full and proper Consent thereto on the part of Your I'ctitioner Frederick Lord Baltimore. That Your Petitioners Thomas and Eiciiard Penn should and Mould set down the said Cause to be heard at such Time as should on such Application be appointed for the same and should and would by their Council duly attend the hearing of the same. That on the hearing of the said Cause Your petitioners Thomas and Richard Penn should and would 1)y their Council Consent and pray that all parties might have Liberty to resort to the Court from Time to Time for further Directions in Case any difficulty or Doubt should happen to arise in the Carrying the said former Decree and Subsequent Order or any Decree or Oi-der to be thereafter made iu the said Cause into Compleat Execution and should uot pray any Costs in the said Cause to the Time of tiie hearing the said Cause upon such Answer Con- sent and Submissions as aforesaid or at any other Subsequent Time should Your petitioners Thomas and Richard Penn or their Heirs or Assigns or any of their Councel or Agents de- mand or pray any Costs to be Decreed or Ordered to him or them in respect of the said Suit then Depending. But the said Suit and all proceedings therein should be forthwith dismissed upon a proper apjilication to be forthwith made by your peti- tioner Frederick Lord Baltimore to the Court of Chancery as for want of prosecution, That your petitioners Thomas and Richard Penn or their Heirs or Assigns should uot at any time or in any manner Avhatsocvcr oppose such Decree as sliould be so made upon such Consent as aforesaid in the said Cause to be eomenced by Your petitioners Thomas and Richard Penn pur- suant to the true intent and meaning of the said Indenture therein before declared or Expressed or the Signing and In- rolling such Decree. That in Case your petitioner Frederick- Lord Baltimore or his Heirs or Assigns should at any time thereafter (whether before or after the said Cause in Chancery slioidd be heard) be desirous to lay the said Indenture and the matters therein before men- tioned or any of them by au humble petition before His Majesty 152 APPEXDIX. his Heirs or Successors iu liis or their privy Council and humbly to pray the Koyal allowance Ratification and Confirmation of the said former Articles of Agreement and the said inrolled Decree and Subsequent Order of the said Court of Chancery and of the said Indenture to be for ever Established as between the respective proprietaries of the said Provinces and Counties for the peace and welfare of the same and of His Majestys Sub- jects in those parts petitioners Thomas and Eichard Penn and their Heirs and Assigns should forthwith upon request join iu and become Co-petitioners therein or otherwise with their own. Hands Sign a full Consent to such petition at the foot thereof and should and would by all other fitting and jiroper means give their full Consent and Agreement to tlic same either in their own pro])er persons or by such other means as should be most valid and effectual and for the Considerations aforesaid Your petitioner Thomas Penn for himself and his Heirs Executors Adm'oi's and Assigns and Your petitioner Richard I'enn for himself his Heirs Ex'ors Adm'ors and Assigns did thereby further Covenant promise and agree to and with Your petitioner Frederick Lord Baltimore his Heirs Ex'ors and Adm'ors and every of them That they and also some or one of the Executors of the said John Penn deceased should on the Day after the Date of thp said Indenture upon request to be to tiieni made and for the consideration of the sum of one Shilling only but at the Costs of Your petitioner Lord Baltimore execute luito your 3'our petitioner the said Frederick Lord Baltimore and unto the Executors of the said Charles last Lord Baltimore and the Executors of Samuel Ogle and John Sliarpe two of the said Ex'ors who arc since dead and unto all and every other per- son or persons claiming or to claim by from or under the said Ciiarlcs Lord Baltimore and your petitioner Frederick Lord Baltimore or either of them and also unto all and every the Estates Real and personal of the said Charles Lord Baltimore a full Dischai'ge and Release for all and every such Costs as by the said former Decree and Subsequent Order were decreed to be paid by the said Charles last Lord Baltimore or were re- served for the future Consideration of the said Court of Chancery and for all Costs and Charges which your petitioner the said Thomas and Richard Penn and the Executors of the said John Penn could or might Claim against your petitioner Frederick APPEXDIX. 153 Lord Baltuuorc the Executors of the said Charles Lord Balti- more or ain^ otlier pei'son or persons aforesaid by Virtue of the said Articles Decree and Order and other the proceedings afore- said mentioned therein That after taking Notice that your peti- tioner Frederick Lord Baltimore and his ancestors by him or tlieiuselvcs or by some of his or their Tenants Grantees or agents under his or their Right and Title had been from Time to Time and then ■were in the actual possession of all the Lands Tene- ments and Plereditaments therein after mentioned to be thereby released by your petitioners Thomas and Richard Penn unto your petitioner Frederick Lord Baltimore and his Heirs It was Witnessed tliat for the Ends and purposes and from the mo- tives aforesaid and in order to render the said Indenture the most Valid that might possibly be and for and in consideration of five shillings of Lawful Money of Great Britain to your pe- titioners Thomas and Richard Penn in hand paid by your peti- tioner Frederick Lord Baltimore Your petitioners Thomas and Richard Penn for themselves and their Heirs did thereby fully and absolutely Release renounce and Quit Claim unto Your pe- titioner Frederick Lord Baltimore and his Heirs and Assigns for ever all that the said province of Maryland in America with all and singular the Rights Royalties Members and appurte- nances thereof Bounded and to be bounded according to the Ex- tent Bounds and Limits which were agreed by the said articles of agreement of the 10th day of May 1732 and Decreed and Ordered in and by the said InroUed Decree of the said Court of Chancery and the said subsequent Order of the said Court of the 29th of March 1751 and according to the True Intent and meaning of the said Indre and the Reversion and Reversions Remainder and Remainders Yearly and other Rents Issues and Profits and arrears of Rents Issues and Profits of all and Sin- gular the said province of Maryland and all the Estate Right Title Interest property power prerogative Claim Demand and pretensions whatsoever of Your Petitioners Thomas and Rich- ard Penn and their Heirs of in and to the same and every or any part or parts of the same Provided always and it was there- by Declared and agreed that neither the said Indenture nor any Clause Article matter or thing whatsoever therein contained should Extend to the Right of any Grantee or Grantees and those claiming under them to any the Farms Lands Tenements u 154 APPENDIX. or rierditameiits then in tlic Actual possession or Occupation of all every or any the Tenants or Occupiers of the said province Lands Hercdils and premises thcrehy Released or intended or agreed to be Eeleascd as aforesaid which had been at any Time or in any manner theretofore Granted by or under the authority of the proprietaries of the said province of Peusilvania for the time being but tliat it should and might be Lawful to and for all and every such Tenants and Occupiers of the same premises and cveiy part thereof tlieir and every of their Heirs Executors Admors and Assigns from Time to Time and at all Times thereafter to hold and enjoy the said Farms Lands Tene- ments and Hercdits and every of tlicm and every part thereof for and during all and every such their several and respective Estates Terms and Interests in the same Subject nevertheless to and under all and every of the same Quit llents Reservations and Services to be thenceforth paid rcndred and performed to the proprietory of the said province of Maryland for the Time being as they tlie said Tenants and Occupiers and every, of them were liable at the Time of and Immediately before the Execu- tion of the said Indenture to have paid rendered and performed to the pi'oprietaiy of the said province of Pensilvania pi'ovided also and it wa,s tlicreby further Declared and agreed that neither the said Indenture nor any Clause article matter or thing what- soever therein contained should Extend to the Right of any Grantee or Grantees or tliose claiming under them to any the Farms Ijands Tenements or Hereditments whicli were Situate lying and being on the East side of the River Susquehannah and within the sj)ace or Distance of one Quarter of a Mile more South than the East and West Line mentioned in the Sixtli ar- ticle of the said articles of agreement of the 10th day of May 1732 and M'hicli had l^ccn at any time and in any manner tlierc- toforc Granted by or luider the authority of the proprietaries of the said province of Pensilvania for the time being and were then in the actual possession or occupation of all every or any the Tenants or occupiers of the said province Lands Heredits ' and premises But that it should and might be lawful to and for all and every such Tenants and occupiers of the said last men- tioned Lands and premises and every part thereof their and every of their Heirs Exors Admors and Assigns from Time to Time and at all times thereafter to hold and enjoy the said APPENDIX. 155 Farms Lauds Tenements and Hcrcdits and every of them and every part tliereof for and during all and every their several and respective Estates Terms and Interests in the same and every of them and every part thereof Sebjcct nevertheless to and by and under all and every the same Quit Eents Reserva- tions and Services to be from thenceforth paid rendered and per- formed to the proprietary of the said province of JIaryland for the Time being as they the said Tenants and Occupiers and every of them were lyable at the time of and Immediately be- fore the Execution of the said Indenture to have paid rendred and performed to the proprietaries of the said province of Pen- si Ivan ia. That in pursuance of the said last mentioned Indre your petitioners Executed Commissions to certain Commissioners to run the Lines pursuant to the sSid luilre who made a progress therein but there being not Sufficient Time allowed to finish and Compleat the same Your petitioners did rene^v such Commis- sions allowing further Time for the Compleating the same and such Commiss'rs are now proceeding in the said ^Vork. That in pursuance of the said Indenture of 1760 Your peti- tioners Thos. and Richard Penn brought a Bill in the Iliffh Court of Chancery against your petitioner Frederick Lord Balti- more to Confirm and Establish the said agreement & your peti- tioner the said Frederick Lord Baltimore put in his Answer thereto and the said Cause came on to be heard Ix^fore the Right Honble the Lord High Chancellor of Great Britain upon the 6th Day of March 1762 when his Lordship was pleased to order and Decree that the Supplemental Bill brought by Your Peti- tioners against the said Thos. & Richard I'cnn against your petitioner Frederick Lord Baltimore should be dismissed with- out Costs Your Petitioner Frederick Lord Baltimore consenting thereto & by the Consent of Your petitioner the said Frederick Lord Baltimore it \vas Decreed that the said Indenture of the 4th day of July 1760 should be confirmed and Established and carried into Execution & that the several proceedings of the . Commsssioners to fix and Settle the Boundaries of the respective provinces which were antecedent to the Death of the late Lord Baltimore or antecedent to the Execution of the new Commis- sions by Your petitioners should be likewise Confirmed and Established and the Cemmissiouers were directed to proceed in 156 APrENDix. the Execution of the new Commissions that had issued by virtue of the said Indre of the 4th July and his Lordship gave no Costs ou either side But reserved the Consideration of further Costs and farther Directions and your pet'rs were to be at Lib- erty to apply to the Court as there should be occasion. That your jiet'rs are desirous as much as in them lye to Quiet the Minds of all Your IMajestys Subjects Inhabiting in tlie lately disputed parts of the said provinces and three lower Counties & to promote the peace and "N^^elfare of those parts and in order to give a further Testimony of their Fii'ra agreement and that a final End and period hath been put to all their Contests and Litigations by the said Agreement of 1760. Your Petitioners do most humbly pray Your ilajcsty that Your Jlajesty will be most graciously pleased to give Your Royal allowance Ratification ancT confirmation of the said Arti- cles of Agreement of the 10th of May 1732 of the said Inrolled Decree of the loth of May 1750 of the Subsequent Order of the 29th of March 1751 and of the said Indenture of the 4th of July 1760 of the said Decree of the 6th of March 1762 and every Article Clause matter and thing in them and each of them contained and that tlie same may be for ever Established as between Your petitioners proprietaries of the provinces of Mary- land and Pensilvania and the three lower Counties of Newcastle Kent and Sussex on Delaware in America. And your Petitioners shall ever Pray &c. F BALTIMORE THO: PENN RICH'D PENN. 177.1. An ACT for the more effectual oseertaAning and fixing the UmUs of the several counties loithin this (/overnment, and for remedying some inconveniences that may arise by the late establishment of the boundaries and divisional lines bettvecn the same and Mary- land*- rrcamijic. V.'licrcas in pursuance of certain articles of agreement, made tlic tenth day of May in the year of our Lord One Thousand « : -Sec a supplementary act hereto^ chap. 231, a. ArrENDix. 157 Seven Hundred Thirty and Two, between the right lionorable Charles, Lord Baltimore, proprietor of the province of Maryland and the honorable the proprietaries of these counties of New- castle, Kent and Sussex, and the province of Pennsylvania, and the decree of the Lord High Chancellor of England, bearing date the fifteenth day of IMarch in the year of our Lord One Thousand Seven Hundred and Fifty, for the specific per- formance and execution of the said articles ; and aho in pur- suance of certain other articles of agreement made, tlie fourth day of July in the year of our Lord One Thousand Seven Hun- dred and Sixt}', between the right honorable Frederick, Ijord Baltimore, son and heir of tlic said Charles, Lord Baltimore, and the honorable the proprietaries of these counties and the pro- vince of Pennsylvania, and of one other decree of the Lord High Chancellor of England bearing date the sixth day of March in the year of our Lord One Thousand Seven Hundred Sixty and Two, for the sjiecific performance of the last mentioned articles ; the several lines, mentioned and described in the said articles, and thereby finally agreed upon and settled by the said parties, to be and forever remain the boundaries and divisional lines betAYcen the said provinces and counties, have been run by Commissioners, for that purpose appointed and authorized by the said respective proprietors, and marked out in exact con- formity to the said articles, with stones, pillars and other land- marks, and described by the said Commissioners in the return of their proceedings under their hands and seals, and in an exact plan or map thereof. Section 2. And ^cJicreas in the year of our Lord One Thou- sand Seven Hundred and Sixty-seven a joint petition -^-as pcr- fcrred to his present Majesty, by the said Frederick, Lord Baltimore, and the proprietaries of these counties and the said province of Pennsylvania, reciting the before mentioned articles and decrees, and setting forth, that their Commissioners were then proceed- ing in the work ; that they the said proprietors were desirous as much as in them lay, to quiet the minds of all his Majesty's subjects, inhabiting in the lately disputed parts of the said pro- vinces and counties, and to promote the peace and welfare of those parts ; and in order to give a further testimony of their firm agreement, and that a final end and period had been put to all their contests and litigations by their said agreement of the 158 APPENDIX. year One Thousand Seven Hundred and Sixty, they, by their ,=aid petition, most humbly prayed his Majesty, that he would bo most graciously pleased to give his royal allowance, ratification and confirmation, of the several and respective articles and en- rolled decrees before mentioned, and every article, clause and thing in them and each of them contained, and that the same might be forever established between them ; "Whereupon his Majesty, by his order in Council dated the eleventh day of January, in the year of our Lord One Thousand Seven Hun- dred and- Sixty-nine, was pleased to signify his royal approba- tion of the said agreements and proceedings mentioned in the petition of the said proprietaries ; whereof as well the proprie- taries of the said provinces, as all others whom it might con- cern, was ordered (o take notice, and govern themselves ac- cordinglv. Sect. 3. And ichcrcas the honorable the Governor and Com- mander in Chief of these counties and the province of Penn- sylvania, in pursuance of- his Majesty's pleasure and permission, by his proclamation bearing date the eighth day of April, in the year One thousand Seven Hundred and Seventy-five, did publish and make known all and singular the premises, thereby requiring (among other things) all officers and other persons, dwelling to the northward and eastward of the lines and boun- daries so as aforesaid run and marked, between the province of Maryland and counties aforesaid, to yield obedience to the laws of the said counties and govern themselves according thereto. For the purpose thei'cforc of carrying the intention of the said proclamation and the laws of this government moi-e effectually into execution. Sect. 4, Be it enacted by the honorable John Penn, esq., ivith his Majesty's royal approbation, Governor and Commander in Chief of the counties of Newcastle, Kent and Sussex, uj)on Del- aware, and province of Pennsylvania, by and with the advice and consent of the Pc2)resentatives of the freemen of the said counties, The .livisionai '"^ General Assembly met, and by the authority of the same, That from and after the luiblication of this act the line dividing the counties of Newcastle and Kent, continued from the mouth of a branch issuing from the main branch of Duck Creek, and opposite part of Enoch Jones' land on the Kent side, and Richard Nash's land on the Ncav Castle side, and running from lint? between tho counties of New Ciistle and Kent continued and fixed. APPENDIX. 159 thence up the said braiicli on the several courses thereof, wcst- ^^■ard six humhril and two perclics to a white oak corner tree of Benjamin llazlc and llichard Ilollet's lands at the head of said branch ; from thence continued due west one thousand seven hundred and eight perches, till it intersects the tangent or divisional line between tliose counties and Maryland, where the same cr.osses the Cyprus Branch, shall be deemed, taken and held, the boundary between the said counties of New Castle aiso, between 1 T^ 1 1 1 T 1 1 • f T- .the counties of and Kent ; and that the Inie between the counties oi Xeut and Kent ana Sussex. Sussex, continued from a fork of Mispillion-creek, at the junc- tion of Tan-Trough-brauch, and Beavcr-dam Branch, running up the Tan-Trough-brauch with the sevei'al courses thereof eijrht hundred and eight pcrclies to the head thereof; thence south westwardly to a small fork of a small branch of the river Nanti- coke ; thence down .said branch to the southward end of a Beaver- dam, on the west side of a Beaver-pond, the original temporary division between Kent, Sussex and Maryland, and from thence due -west t^v•o thousand eight hundred sixty and four perches to the north and south or tangent line aforesaid, shall be deemed, taken and held the boundary between the said counties of Kent Persons iniiai>- aud Sussex ; and that all the persons inhabitins; the lately dis- disputed la'uds . 1 1 1 ■ 1 ■ 1 • 1111 1 . 1, 1 **•'*" ""joy »" puted lands withui this government shall nave and enjoy all the ''gi'ts. piiviiegcs im^uunities, rights, liberties and privileges, which they could or might be entitled to, as if they had always been acknoA\ledged actually to have resided within the same. Sect. 5. And be it further enacted btj the authority ajoresaid, a/certain'"'!'!.'' Tliat the Justices of the Peace for the several counties of this seTJShuudrlaa government may and shall, as soon as conveniently may be, in *'^' the Courts of General Quarter Sessions to be held for the said counties i-espectively, ascertain the bounds and limits of the several ancient hundreds within the same, and lay out such and so many new hundreds as may be found necessary and con- venient, and, until the same shall be so fixed and laid out, that tlie freeholders and other electors who have heretofore resided together and been considered as inhabitants of one and the same district or hundred, and now added to the county of Sussex, may and sliall choose their own inspectors and Assessors in the presence of two freeholders in each district or liundrcd, to be named by Jolin Dagworthy, William Elligood, William Polke, William Holland and Jonathan Bell, esr^uires; or any three of IGO APPENDIX. them, which said freeholders are this year appointed to supply the defect of such officers in those hundreds, added as aforesaid to Sussex county, as by law are constituted judges in electing said Inspectors and Assessors, and also to maintain and support tlie poor and the public roads, and do all and every other act or thing in like manuer as the inhabitants of any ancient hun- dred within this government might or could do before the pass- ing of this act. Passed September 2, 1775. " It is apparent how erroneously the act recites the proclama- tion of George III. last stated." In 1792 or 1793, it is'difBcult to say whiclii, as the only source from which the information was obtained, is the mutilated " Calm Appeal " of McKeon and Physic, in Philadelphia Library, No. 12,378, Duodecimo, the Delaware Legislature unanimously passed three resolutions, as follows : 1st. "That the issuing of any warrant for the surveying any vacant or unapjiropriated lands in this State, by any person or persons whatever other than sucli as may act under the autliority of tins State, is an usurpation of the sovereignty of the State. « 2d. " That it is the sense of the two Houses that no surveyor in this State ought or legally can execute any warrant issued in the name of any person not authorized by this State for that purpose. 3d. " That it be recommended to the citizens of this State to take up no warrants and to acccjit of no patents or deeds what- ever from John Penn the younger, and John Penn, or either of them or their agents or attornies." 1703. An A CT concernlncj vacant and uncultlvutcd lands.* V/hcreas tlie minds of the good people of this State arc much alarmed and discj^uieted by wan-ants for surveying lands, being * See after chap. 45. c. an act for opening a Land OfGoe for tlie sale of sncli, &c. — and chap. 57. c. a supplement tlicreto. APrEXDIX. IGl issued without the authority of the State ; and it appears that the peace thereof will be greatly disturbed by such pi'occeding : Therefore for preventing the evil consequences thereof, Takin" any Section 1. Be it enacted hj the Senate and House of Repre- ;™7^';'' '/''^^'j;? scntatives of the State of Delaware in General Assembly met, "^^^^^ Pf That, if any person or persons, inhabitants of this State, shall, p^J'on'ru'nau" after the passing of this act, take or receive any ^varrant, or s';.";!'''* ''■'' "'" shall make, or cause to be made, any survey in consequence of such -warrant, or shall take or recei\-e any grant, deed, indenture, or other writing, from any person or persons not acting under the authority of this State, for any vacant and uncultivated lands in this State, the person or persons so ollcndiug shall forfeit and pay for every such offence, the sum of One Hundred rinaity. Dollars, to be recovered in any Court of General (Quarter Ses- sions of the Peace and Gaol Delivery. Sect. 2. And he it enacted, Th^t no warrant issued since the ^_ ^o warrant^^i^s- fourth day of July, One Thousand Seven Hundred and Seventy- f,;jj"n;i,.*pate';t six, slmll be laid or surveyed by any surveyor ; nor any patent s™"''"''' *=• granted, or deed received, on any warrant or 'survey, either issued or made since the fourth day of July aforesaid, under the penalty of One Hundred Dollars for each and every such ^var- i""^' ty- rant, survey, patoiit, or deed, to be recovcTcd as aforesaid,* Passed February 2, 1793. All ACT for opening and cdabUslung a Land Office within this'^''^^- state, and for the sale of all vacant and uncultivated lands therein, {a) Whei-eas it appears to this General Assembly that large quan- p,, titles of vacant and uncultivated land are within this state, which at the present do not, and heretofore have rendered no support to the government : Wherefore, (6) * See cluap. 45. c. sects. 10, 11, that nothing in this act (chap. 10) shall he construed so as to v.acate or annul any warrant issued hetween Jan. 1, 1770, and Jan. 1, 1-792, or any sur^'ey, patent, deed, or grant, made or obtained thereon, between the said tini'es; but sucli title to any lands in this State is there confirmed. (a) See after chap. 57. c, a supplement hereto — and chap. 10-. c, an addi- tional supplement. (b) See before chap. 10. c. X amlilo. 162 APPENDIX. sury.y„i-stobo -SECTION 1. BE it enciclcd hy the Senate and House of Re pre- scntaticcs of the stale of Delaware in General Assemhhj met, That sneTaTOuts°of tlic GovGnior sliall coiumissionato in each county soiuc Surveyor locatbn. of skill and integrity : And that it shall and may be lawful for any person or persons to apply to the Recorder of Deeds in each county, who is hereby directed and required to issue a special Marrant, under his hand and the seal of office, directed to the Sur- veyor of the county, authorizing him to survey and locate the land or lands therein mentioned, and to return a plot thereof, which shall contain the courses and distances, of the several lines there- of, a description of the boundaries, creeks, branches and rivulets surveyed or lying within the lines of the said plot, the names of the owners of the contiguous or adjoining lands, and the quan- tity of land thereby isurveycd, to an examiner, to be ajJi^ointed and commissioned by the Governor; (<•) which said plot as above described, shall be returned, M'ithiji six months after the date of sucli warrant, to tlic examiner as aforesaid, who shall Wiiiiin whai examine the same, and if it be impei-fect, shall return ^t to the timo tho I>lcil3 ' '^ ' siiiiii lie nturncd gr,ij Survcvoi" for amendment: but if the same shall not be rc- to the examiuer. ^ ' If approved, turned for amendment, but be approved bv the examiner, which shall li6 sent to -n i i -i i tho Kpcoidor; approbation shall be certified on the said iilot, signed by the ex- who Bhall mako li . ii,i-i out a grant and aiuiucr, and returned by him, together with the plot, to the said pivsent thu same ■" ./ / o x / to a itoaid of Recorder, who shall, upon ijaymcut of the iiurchasc money to C o m uiissioncrs, ' J I I J l ^ ^ J ^ *'^- the State Treasurer, and a receipt produced as is hereinafter di- rected to make a grant, and present the same to a Eoard of Com- missioners in each county, consisting of three suitable persons to be appointed by the Governor for the time being, for their ap- probation, and being attested by them, and signed by tlie Gov-- crnor for the time being, the seal of the state shall be annexed thereto, {d) i,i«tof«ainints Sect. 2. And be it enacted, That the Eecorder in each county and mrvtjys to bo , . i , , , , t /» ± l retmncd to the- as aforcsaid, shall make out a list ot everv warrant and survey Ticasiiror. i,.™. •'•■i fxi made out and returned to his omce, containing the names ot the person or persons in whose favour the same may have issued, the date of the warrant, the date of the survey, and the quantity of land contained in such survey, and transmit the same to the State Treasurer ; and in case the. person or pei-sons in whose (c) To wit, one in each county by sect. 11, of cliap. 57. c. ((I) See said cliap. 57. c. sects. 3, -1, 7, 8, tliat such grant shall be by patent, and the form thereof prescribed, &c. ^p^E^•DIX. i 10 ;i fiivour the said Mavraiil or \varrant.s issued, shall not, ■\vitliiii , i;; <■'* "f 'i''; ' ^ luult 111 payim lit nine months after the approbation of the said examiner, pay or "'' "'" i;"" ''■'",'= i- X / J- t* lllulU'V, till.' lUlliIs cause to be paid to tlie State Treasurer, at the rate of Fifty "^^^^ ""■"'*' Cents for every acre of land included in such survey, tlien and in such case, the said land shall be adjudged, deemed and taken to be still vacant aud unappropriated ; and it shall and may be lawful for any person or persons willing to purchase the same to apply to the State Treasurer, at any time after the cxjiiration of the said nine months, and pay to the State Treasurer the pur- chase money for the lands contained in such survey ; and upon a payment made to the State Treasurer, for the lands contained in any survey, he shall give a receipt to such person oi' persons, siwcilVing therein the' date of the warrant, the name of the per- nnw pits, n-i ^ "^ ^ _ , / ■*■ willing; to pur- son or persons in whose favour it liad issued, the date of the '=''■'■■"' ""' "'""« survey, and the quantity of land contaiued in such survey ; which receipt shall be carried to the llecorder, who shall file the same in his office as of rccoi-d, and thereupon shall immediately make out a grant, as before directed, to such person or persons producing such receipt, reciting therein the particulars men- tioned in such receipt. {<•) Sect. 3. And tcharas dis|)utes may arise between the inhabi- Disputes ou tim ^ '' lociitiyn of liintiri tants on the location of lands as aforesaid : JJe it enacted. That ?''"',', ''"t,''°,',"'"'; ' iiieu by tueuoard ■^Ndiatcver different claims or pretensions may arise, or any caveat ofCommiasioneM shall be entered before the llecorder, against any warrant and survey, at any time before the same shall be certified to the State Treasurer as afjresaid, it shall and may be lawful for the aforesaid Board of Commissioners, upon notice of such caveat having been given, ten days previous to the sitting of the said board, to the person or persons in wliose favour such warrant and survey was made, to hear aud determine all matters in vari- ance, in a summary way, according to the laws of the land, and equity and good conscience; and such determination shall be entered as of record by the said board. Prodded, That, in all To whom n pi c- , 11 , • 1 forcnce sliull 1,0 cases a preieccnce shall be given to such ])erson or persons as s'^on- have lands contiguous to, or adjoining such vacant or uncultiva- ted and other lands, and to all pei-sons Avho may have settled (c) See chap. 57. c. sect. 4, a similar provision with the extension of tlie time for paying at the rate of Fifty Dollars Per 100 acres, to two years from (late of warrant — in chap. 90. c. time of payment exteniled to one year more — and in chap. 101. c. sect. 5, further extended for another year. 164 k APPENDIX. any lands, not included or held under any warrant issued previ- ous to the first of January, One Thousand Seven Hundred and Ninety -two, in case such person or persons shall apply for war- rants, within six months after the appropriation of such lands How it ihaii lie as aforesaid to the use of the state; and in case two or more tain cases. shall havG adjoining or contiguous lands as aioresaid, then the said board shall do Avhat to them seems equitable and right ; and no warrant shall issue to- any one person for any greater quantity than two hundred acres of land. (/) Recorders to en- Sect. 4. And bc it encictccl, That the Recorders, in the respec- rol all warrants, , r. i • in i ■ enrvcjs.ic. tivc couutics 01 this State, shall, at their own expense, procure record books well bound and of good paper, wherein shall be recorded the warrants issued, the surveys made thereon, and re- turned with the certificate of the examiner, the grants made in consequence of such surveys, all caveats entered before the Re- corder, M'ith the determination of the Board of Commissioners thereon, {(j) Repealed. Sect. 5. Anil be it further enacted, That ^\•hcre any warrants ings ma/bTbad' havc becii granted since the first day of January, One Thousand imvr'iioT cmu° Scvcu Huinlrcd and Seventy-six, and the terms of such war- terms ot their rants havc not been complied with, by the persons to whom they warrants, grant- . 'in i iipij*' cd since tbc first ^vcre granted, in all such cases it sliall and mav be lawtul tor of Jaunarv,1776. i i " -t ^ the ])ersons to whom such wai-rants were granted, to apply to the Board of Commissioners aforesaid for the respective counties, and upon tlie payment of the caution money to the State Treas- urer as before directed, and agreeably to the original terms con- tained in such warrants, such persons shall receive certificates at- tested by the said Board of Commissioners, to be signed by the Governor for the time being, under the seal of the state ; wliich said certificates shall be I'eturued into the Recorder's Office, to be filed as of record, within three months, (/i) or appeal from Sect. 6. Provided nefertheless, and be it enacted, That nothing the bjard. ' in this act contained shall prevent an apjjcal from the Board of (/) See chap. 57. c. sects. 3, 5, 9, 10— chap. 90, c. sect, 2— chap. 101. c. sects. 2, 5, 6, 7 — and chap. 102. c. for further and other powers given to the said Boaid of Commissioners and for their regul.ation. ((/) See said cliap. 57. c. sects. 4, 8 — chap. 101. c. sects. 3, 4 — and chap. 102. c. for other duties, &c., prescribed by the Recorders. (h) See chap. 57. c. sects. 3, 13, this sect. 5, repealed and supjdied. APPENDIX. 165 Commissiouers to the . Supreme Court, wliicK shall beheld in the respective counties. (/) 8ect. 7. And be it enacted, That the variation of the compass AmU, in all cases, be according to the usage and custom hereto- fore practised in different parts of the state ; And that all sjrants oftiiDv;matiun ^ -*■ ' ^01 the compiuss. made by virtue, or under the authority of this act shall convey Nature ..t tii^ . p . -, estate gwinted. to the grantee or gi-antecs an estate in ice simple. Sect. S. And be it further enacted, That uotliing in this act iiereaiea. contained shall impeach, impair, or iu any manner whatever confirmation. .f call into question, the title to any lands in this state held under iteki under imy .,■,., grant, &c. prior any gi'ant, M^arrant, survey, re-survey, or patent, made or issued to nvs. before the year of our Lord One Thousand Seven Hundred and Seventy-six ; but that all such titles shall be good and available iu law and equity. (/.•) Sect. 9. And be it enacted. That each member of the Board „ *";;^™"fj 'JJ. of Commissioners, iu the respective counties, shall be allowed commissioners, for every day's attendance, One Dollar and Fifty Cents. (/) The Recorder in each county shall have for every warrant Recorder. signed and sealed, Fifty Cents. For every caveat entered. Ten Cents. Every copy thereof, under seal. Forty Cents. Every final determination, Twenty Cents. Filing every survey. Ten Cents. Every grant made out and ready for signing, Fifty Cents. Recording every warrant, survey, certificate, grant, ca\'cat, and final determination, One Cent for every line of twelve words, (m) Aiid the Surveyor shall have for every plot. Two Dollars, stmoyors. and every day's attendance in surveying, Two Dollars. And the Examiner shall have for every plot examined, Fifty Examiner. Cents. (i) Ey sect. 10 of chap. 57. c. sneh appeal is to be to the Iliglv Court of Er- roM and Appeals. (/.) Tills section supplied and repealed in cliap. 57. c. sects. 1, 2, .3, 1.3. {I) See chap. 101. c. sect. 2, an additional allowance to Commissioners which with all expenses arising and accruing on the hearing and trial of any caveat since Xoveraber 1, 1795, to be paid by the party failing in its claim. (m) By chap. 101, sect. 4, the Recorder of Deeds in the counties of Kew- Castle and 'Kent for every day's attendance on the Board of Properly, to be allowed One Dollar per D.iy, to be paid out of the monies arising from the Laud Office. 166 ArPENDIX. Every certificate thereof, Twenty Cents. And tlie State Treasurer shall have for every i-cccipt, Fifty Cents : Which said fees shall bo paid by the party, at whose re- quest the said services are done. Warrants, *c., Sect. 10. And be it ciiactcd. That notliino- in the act entitled, inmle since Jan- v o imry 1, 1776, and _^.|,j qqi conccniinQ vaccint and uncultivated lands, (n) shall be before January 1, ^ / \ / 1792, not to be coustrucd to cxtcud to vacate, or annul, any warrant issued since the first day of January, 1776, and before the first day of January, 1792, nor any survey, patent, deed, or grant made or obtained thereon between the times aforesaid. .,F.K"''T°.'i™°^ Sect. 11. And be it enacted, That the title to any lands in BULll grants. ' ■ this state, held under any grant, warrant, survey, re-survey, or patent made or issued between the said first day of January, 1776, and the first day of January, 1792, shall be good and available in law and equity, (o) SlcT. 12. And irhcrcas, from the former communication be- tween Delaware and Pennsylvania, as to jurisdictiou and gov- ernment, many of the warrants, surveys, patents, and grants for lands within the state of Delaware, were filed and recorded in the Land Office in the city of Philadelphia, Mhereby many of the inhabitants of this state have sustained grevious hardships and great expense, in procuring authenticated copies of such original papers and records : wherefore. Be it farther enacted, That infow™"' To J°''''^P'^ Miller, esquire, be and he is hei'eby appointed, autlior- I'-e nV»y°i vm'ia i^cd, aud impowcrcd, ou the part of this state, to attend in the rantCiLr" b™h city of Philadelphia, and permission from the proper authority [I'b itate!"''"'' of the state of Pennsylvania being first had, to transcribe, or procure to be transcribed, under his care and direction, in one or more well bound books, in folio, all such M'arrants, surveys, re-surveys, patents, grants, aud other original papers, as may be found in the said office, and which in any wise relate to lands, tenements, and hereditaments within this state ; being by him also carefully and diligently compared M-ith the originals, in III what rases fhc Said officc ; and that he be also authorized and imiiowered, lie shall solicit n , . t • r i •in' i • • tiiu originals, ou the part of this state, to solicit irom the said otuce, the origi- nals of all such warrants, surve\-s, patents, grants, and other papers, when the same can be had and procured without injuring politei"" '"'''''" "'■ 'defacing other records of the said office; to the end that the (m) For wliicli see chap. 10. c. Ante, (o) See also cliap. 57. c. sect. 3. APPENDIX. 1C7 same, being first examined and approved by tiie Legislature of this state, may be deposited in the Recorder's fffice at Dover,' as public records. Sect. 13. And he itfui-thcr enacted, That Joseph Miller sliall to be™nmarjlhn. receive such compensation for his services in the premises, as shall be hereafter directed by law. Skct. 14. And be if enetctcd, That the folio book, certified and 1,0 removea ivom signed by Thomas INI'Keon, and now lodged in the office of the Hover. Master of the Rolls in the town of New-Castle, containing tlie transcripts of original papers, made under the direction of the said Thomas M'Kcon, shall be removed from the said toAvn of NcAV-Castlc to the town of Dover, and shall l)e there deposited in the Recorder's office, (j)) Sect. 15. And be it enacted, That no warrant shall be issued, in^'^'^tr",,!' nor any proceedings had under this act, before the first day of [;-»=« ™'^" "'"' October next. 2\isscdJune-id, 1793. A Supplement to an act, entitled. An act for opening and cstab- I'oi- lishing ei Land Office ivithin this Stcde, and for the sale of all vacant and unlocafed Icauh therein, (a) Whereas the right to the soil and lands within the known rreamMe. and established limits of this state, M'as heretofore claimed by the cro\vn of Great Britain : And ivhereas, by the definitive treaty between his Britannic Majesty and the United States of America, his said Majesty relinquished all rights, proprietary and terri- torial within the limits of the said United States, to the citizens of the same, for their sole use and benefit ; by virtue Avhereof thc_ soil and lands within the limits of this state became the riglit and pro[)erly of the citizens thereof, and who at the time of passing the act to which this is a supplement, had, and now have, full power and authority, by their Representatives, to dis- pose of the same for their sole benefit, emolument and advan- {])) See cliap. 199. a. 9 Geo. Ill, declaring this book a [mblic rcconl, and in sect. 5, to be kept at Keiv-Castle. (n) Fur this sec cbap. -15. c. Ante, and for an additional supplement, chap. 102. e. Post. IGS APPENDIX. tago. And u-Jiereas, the claims of the late aud former pretended proprietaries of this state, to the soil and lands contained Avithin the same, are not fonnded either in law or equity ; {b) and it is just,, right, and necessary, that the citizens thereof should be secured in the enjoyment of their estates, rights and properties. Section 1. Be it therefore enacted by the Senate and House of Repixsentuiives of the state of Delaware in General Asscmbhj met, auTulS,'™,,-- That all patents, warrants, and grants, for lands within this I^Iri'cUri'S state, made or granted by James heretofore Duke of York, the andSieunoys proprietaries of ]\'[aryland, or the pretended proprietaries of this .iT<-o°th'"r«.™'ex- state, or their or any of their Agents, Officers or Commissionei's, vonts' fino°,'"an(i duly autliorized to grant lands within the same, at any time before the first day of January, in the year of our Lord One Thousand Seven Hundred and Sixty, and all surveys made in pursuance of any such patents, warrants, or grants, shall be, and at all times hereafter shall be deemed and taken to be good and valid both in law and equity, fully, clearly, and absolutely exonerated, discharged and exempted of and from all manner of * rents, fines, and services whatsoever ; and the said patents, war- rants, and grants so fully, clearly and absolutely exonereted, discharged and exempted, are hereby ratified, confirmed, and established forever, according to such estate and estates, rights and interests, and under such limitations and uses, as in and by the said patents, warrants and grants, are expressed, directed and appointed, and no other. insTanrts umi"r Sect. 2. Aud be it enactcd, That any person or persons legally "'rMt7nK.de'bc- claiming any land within this state, under any Avarrant or grant, ulTy! neo,' shaii issued or made before the first day of Januaiy, in the year of tho oSr'sVeus our Lord One Thousand Seven Hundred and Sixty aforesaid, u' pattuts.""""' for which lands no patent hath yet been issued, are hereby declared to be entitled to a patent for the same, on proceeding in the manner hereinafter dii-ected to pi'ocure patents for other lands under this act, without paying any sum or sums of money for the same, other than the legal fees to tlie several officers through whom such patent is to be procured : Provided, That Hilt tiie same no patent, to be issued under this act, for any lands held under fihall not invali- ^ ^ 'lipi'ini (late tiic risiits ^nv warrant or grant, made or issued betorc tlie said first day of ol persons claim- •^ n > i i n . Hig under prior January in the year aforesaid, shall operate so as in any manner to invalidate, or take away, the right of any person or persons (6) Sec, Inter Alia, the recitals in chap. 229. a. Ari'KNDIX. 109 Iiokling lands luicler any warrant or grant, prior in date to tlie • ■warrant or grant under which such patent shall be issued. Sect. 3. And be it enacted, That where any warrants have now porsi.iw , may iiroctrod to been issued since the first day of Jauuarv, ui the year of our "'"""'i piitcnts, "^ ' * who nave not Lord One Thousand Seven Hundred and Sixty, and before the compikd wuii • ^ the termsof then- first day of January, One Thousand Seven Hundred and Ninety- ™™"ij'''i,fj'i''„'l two, and tlie terms of such warrants 'have not been complied JJiJg';^. \'};"^ j"^'J with by the person to whom such -warrants were granted, it J"""'"-^'' i'"-- shall and may be lawful for any person or persons legally claim- ing under any such warrants to apply to the Commissioners appointed, or to be appointed, under the act to which this is a supplement, for a certificate specifying the quantity of land Avhich the person. so applying shall be permitted to hold under such Avarrant, and upon paying to the State Treasurer the sura of Fourteen Dollars for every hundred acres, contained in such certificate, and producing a receipt therefi)r, I'roni the said Trea- surer, to the Eccorder of Deeds for the county in which the lands lie, the said Recorder shall malcc out a patent for the said land, in which patent the State of Delaware shall be the grantor, and the person or persons named in such certificate shall be the ratonts to i.e i ■'■ ^ ^ signed by the grantee or grantees ; which patent being produced to the Gov- oovcmor, &c. ernor of this state, he shall sign the same, and cause the seal of the state to be affixed thereto; and every patent made in pur- suance of this act, and authenticated in manner aforesaid shall convey to the person or persons named as the grantee, or grant- Nature <.f the cos therein, aiid to his, her, and their heirs and assigns, an abso- by'them. lute and unconditional estate in the land mentioned in such patent. Sect. 4. And be it enacted. That the Recorder iu each couuty shall, in the month of November annually, make out a list of all warrants by him granted, and the surveys made iu pursuance Lists of war- of such warrants, aud returned to his office, containing the names veys" to he ro- of the person or persons in whose favor the same have issued. Treasurer, the date of the warrant, the date of the survey, and the quantity of land contained in such survey, aud transmit the same to the State Treasurer ; and in case any person in whose favou any such warrant hath issued or shall issue, shall, M'ithin two years y ■nf 170 APPENDIX. Pci-sons obtain- aftcr tlie date of such Avarrant, (e) pay or cause to be paid to the shall upon pay- Statc Trcasurcr the sum of Fifty Dollars for eveiy hundred mcnt of the pur- , . « , ^ chase money, Bo acrcs, aiid 111 proportiou lor any greater or lesser quantity of cntitlcil to pa- '. ^ ^ 1 11 , ■ 1 1 « , tents; hutinraso land HI sucli survcy, liG shall be entitled to a patent for the of default, the . lands to be deem- gamc ; but if any person who hei'etofore hath or hereafter may ed vacant. 7 ^ l j obtain a Avarrant under this, or the act to which this is a supple- ment, shall not pay the' money for such land within the time aforesaid, such land shall still be deemed vacant and unappro- priated ; and it shall and may be laM'ful for any other person or Aiui may 1.0 pa- persons to apply to tlio Statc Treasurer, at anytime aftcr the Icutod to others. ^.. / « i, r>i expiration of t\yo years froin the date of such warrant, and upon flaying the money for the quantity of land mentioned in such survey, at the rate aforesaid, such other person shall be entitled to a patent for such land. What proprio- Sect. 5. Bc it fuHlicr cnadcd, That the proprietary warrants, siiau not be granted to survcy lands to the use of the proprietor, shall not Ac. ' be deemed grants for the cpiantities of lands in the said warrants mentioned, but shall bc deemed and taken to 'be, aiiplications for land made by the person or jjcrsons in such warrants mentioned ; but all surveys made, or to be made, in pursuance of such Mar- siirvoys made rant, sliall be subject to bc caveated before the Board of Com- in purauunce of,, ,- -. , ■, , -, ^ , , , such warrmts missioncrs, apiiointecl under the act to whicli this is a suijple- .~iil)jcct to be ca- i • i • i /-, • • l li i i i j^ • vcated- ment; Mluch said Lommissioners siiall hear and determine, on all such caveats, in such manner, that no survey made, or to bc made, in pursuance of any such proprietary Avarrant, shall deprive the owner of lands held under any patents, or other Avarrants, of the privilege of taking uj) and securing such quan- iiow the Com- tity of laud adjoining such patents, or other warrants, as will Iil'twuliu'c there- make up to such patents or other warrants, the quantity of two hundred acres, including the land held under such patents or other warrants ; and so also, that no survey made in pursuance of such proprietary warrants, shall include any improvement made by any other jicrson before the date of such survey, and such quantity of land adjoining such improvement as added to the same will make two hundred acres ; and aftcr all caveats agaiiJst the confirmation of such surveys shall be determined, the said Commissioners shall give to the person or persons (c) By cliap. 90. c. sect. 1. Anno 1795, this time of payment extended to one year more — and by chap. 101. c. sect. 5. Anno 1790, a further extension of one vear. ArrENDix. 171 legally claiming iiiulci' such proprietary warrants, a certificate specifying the courses and distances of the lines including the ^ lands such person or persons shall bo permitted to hold under such proprietaiy warrants ; and the person or persons obtaining Persons ouain- sucli certificate, shall be entitled to i)atents for the lands con- froS ti.e com- 1 • 1 . • 1 c< rn r missioners. Ac. tamed in such certificate, on paying to the State Ircasurer, lor Ki>aii be ontiiie.i . . 'to patcuts. the use of the state, the sum of 'Fifty Cents for every acre thereof: Provided, That no survey made in pursuance of any E"' sucii sur- " ^1 J veysbhall not m- sueh proprietary warrants, shall be permitted to invalidate, or in ^^.g^Jftio'to any anywise call in question, any person or persons title to any riijent.^ucimiwi patent or other warrant, included withiu the bounds of such J;°opri',°ry wSl'- proprietary warrant, either prior or subsequent to the date ""'■ ^'^' thereof; nor to include more than two hundred acres of land for every person named in any such Avarrant ; and the residue of the quantity of laud mentioned in such proprietary warrant, if any, shall bo deemed vacant and unappropriated laud. Sect. 6. ^l«JM)/i.cj'ea.s former proprietaries of the late province, win> siiaii i.o •■■ '^ „ , . , entitloil to (he but now State of Maryland, for the ijuriwse of having lands P'f^feronco of •J ' ^ ^ '^ warrants ana ]ia- improved, have hci'ctofore made leases to persons for life or '""'^ '"■' '^'"'■'' 1 ' A leased by former lives, for lauds then Avithin the jurisdiction of Maryland afore- £°j:'j;[^!i;i"" "'' said, but now within the established limits of the State of Dcla- Avare ; Avliich leases have in many instances, expired by the death of the person or persons for Avhose life or li\'es the same Avere at first made : Be it therefore enacted, That the heirs, or other legal representatives, of such lessees, shall be entitled to the preference of Avarrants aud patents for all such leased lands, upon the terms expressed in this act for unappropriated lands, {d) Sect. 7. And he it enacted, That patents made pursuant to r,.nnoftiiei.a- this act, shall run in the following manner: The State of Delaavare to all to whom these j^rescnls shall come, greeting : KnoAV ye, That for and in consideration of the sum of paid into the treasury of this state, by A. B. of county, there is granted unto him the said A. B. a certain tract of land siiucde in county, containing acres [describing particularly, in Avords at length, the courses and distances of the several lines, and the boundaries thereof, ] tvith the appurtenances : To have and to hold the said tract of land, with the appurtenances, to {, for another provision in favor of Mary- land "rants. 172 APPENDIX. Jihii the said A. B. Jils hcim and assigns forever, and his and (heir absolute and unconditional estate and property, free and clear of all 7'cscrvations of rents or services trhatsocver. In tcstimoiuj whereof esquire. Governor, hath hereunto set kis hand, and caused the seal of the state to be affixed, the day of in the year of our Lord, and in the year of the independence of the said state. ii7the°oiwfor Sect. 8. And be it enacted, That all patents granted in pur- '''■'''"''''° "''*'''*■ suance of this act, shall be recorded in the office for recording of deeds for the county in which the lands granted by such patents respectively lie ; for the recording of which said j^atents, the respective Recorders of Deeds in this state shall be al- Too3. lowed the like sums as for recording deeds of the same length, and for an cndorsemeut of such jiatent being recorded, and his hand and seal of office thereto, the same sum as in other cases of the like nature. (<■) nrt7,r»mins''of Sect. 9. And be it enacted. That the Commissioners ap- t|u> con.imssion- poii^tcd, or to 1)0 appointed, under the act to which this is a sup- plement, shall set at the Court House for the county in which they reside, on the first Tuesday of April next, and on their own appointments at all times thereafter, for the purpose of discharging the duties enjoined on them by this and the before recited act ; but, before tliey enter on the said duties, each of them shall take an oath, before the Prothonotary, or Clerk of the Supreme Court, in the respective counties of this state, Their cinth. That he will to thc best of his skill and judf/mcnt, faithfully and impartially discharge the trust in him repjoscd, by act of Assem- cimp.jr,. c. jjjy^ iutitled. An act for opening and establishing a Land Office within this state, and, for the sale of all vacant and tmcultivcded lands ihcrcin, and the supplement thereto, icithont fear, favor, or affection, or any partiality whatever ; and each of tlie said Com- Aiid per diem missioucrs shall be allowed the sum of Two Dollars for every allowiince. , ^ i-i pi ••(» i ■ day s atteuclaucc, to be paid out ot the moneys arising irom the sale of vacant lands within this state. (/) Of appeal from Sect. 10. And bc it enacted. That if any person shall con- tlio Caiiimissioa- .ni.i ,i , -ni t. •,■ n ere. sider him, her, tjr tliemselves, aggrieved by any determination ol (<:) For wliich sec chap. 27, c. sect. 8. (/) All expenses, including the above allowance, arising on any caveats after November 1, 1795, to be paid by the party failing in his claim, with an ■ additional sura of Two Dollars to each Commissioner, by chap. 101, c. sect. 2. ArrEXDix. • 173 the Comuiisslouers appointed, or to be appoiutcd as aforesaid, it shall and may be lawful for such person or persons to appeal from the determination of the said Commissioners, to the High Court of Errors and Appeals, mIiosb determination shall be binding and final and conclusive to all parties, (g) Sect. 11. And be it enacted, That the Governor shall ap- tiw Goronior point some fit person in each county respectively as examiner, amiuf-r of each whose duty and compensation shall be the same as is directed to the examiner, in the act to -which this is a supplement. (A) Sect. 12. Be it further enacted, That all the streets in the ^ The strcete ..r ^ ' Lc\vt.'S, ic, shall town of Lewes, and the bank and marshes between Front- iJf,i^,y"™am' street and Lewes creek, and between South-street and Canary *"• creek, which have heretofore been considered as common and public property, shall not be sul^ject to be taken up by any war- rant to be issued in pursuance of this act, or the act to which this is a supplement, but shall from and after the passing of this act be vested in the inhabitants of the town of Lewes, and the citizens of this state in general, for their common use and benefit ; and all warrants already issued to take up any part of the said streets, bank, or marshes, are hereby vacated and made void ; and the said streets shall be and remain oiien as common But shaii ro- highways under such regulations as other iiighways in this commou high- ways state ; and if any person shall in any manner obstruct the said streets or highways, he shall forfeit and pay the same sum as by Penalty rorob- 11 iir»p' 1 /•! • 11-1 atnictitig Ihciu. law he would lorteit and pay tor obstructuig any other highway within this state, to be recovered in the same manner that such forfeitures, by the laws of this state, are directed to be recovered. Sect. 13. And he it enacted. That the fifth and eighth sec- Part of chap- 1 1 11 • 1 1 • 1 1 • *■'• '^- l<'l"=''>'y the autlioi-ity of Kiiif;- Henry VII. of England, to Jolm Cabot, March 5th, 1495, to make discoveries in America in the name and by the authority of tlie King, etc. June 2-lth, 1-107, Cabot discovered and took possession of Xcw Foundland, part of the continent of America. The right of discovery gave absohite title to the soil. " This \vas an origi- nal acquisition — ■\'\hich before belonged to no man — and now began to be the property of a particular person," &c. These rights remained in the cro'wn of England to the reign of Charles II., King, &c. March 13th, 1664, Charles II., King, etc., conveved to , . , „ ■ James, Duke of York, certain territories in America, generally "''"'^• called " Virginia," of which territory Xe^^■ Jersey was part. " Together -with all the lauds, islands, soiles, rivers, harbours, i,e„mi,-^ * sii. mines, minerals, quaia."ies, woods, markets, waters, lakes, fahings, '^"''^' haicJcings, huntings, and fowlings, and all other roijaltks, &c. "With full and absolute power and authority to correct, pun- j, ,„„i„g & f;,i. ish, pardon, govern, and rule all such subjects of ns, onr heirs and "'''■ ''' °' successors, as shall from time to time adventure themselves into any the parts and places aforesaid," &c., "according to such laws, &c., as by our said dearest brother, or his assigns, shall lie estab- lished," &c., " so that the same be not contrary to the laws and statutes of this our realm of England," etc. June 24tli, 1GG4, James, Duk< of York, conveyed to John LeM.i.ig & fpi- Lord Berkley and Sir George Carteret that part of the aforesaid '-''■'''''•'*■ grant known as New Jerse}-. 17G aitk>;t)I\. Dosciii.tiuii „f " Adjacent to New England, and lying and being to the wcst- Lwmiing'^i' si>i- ward of Long Island and INIanliitas Island, and bounded on the east by the main sea, and part by Hudson's Eivcr, and hath upon the west Delaware Bay or river, and extendeth southward to the main ocean as far as Cape ]May, at the mouth of Delaware •Bay, and to the northward as far as the northermost branch of the said Delaware Bay or river, which is forty-one degrees and forty minutes of latitude," &c. Lciimiiig A si.i- "And also all the rivers, mines, minerals, woods, fishings, CiT, p. 10. ' ' / J ^ o J hawkings, huntings, and fowlings, and all other royalties," &c., in as full and ample manner as the same is granted to the said Duke of York by the hefore-recifcd deed, &c. Learning & spi- Jolin Lord Berkley and Sir George Carteret agreed upon cer- tain "constitutions of government," February 10th, 1G64, and the eastern part of the Province was soon considerably peopled. Smith's His- This was the first constitution of New Jersey, and continued tory of New Jcr- . .n , • t -t t . ^nf-n Boy,p.6i. entire till the province was divided in Ibib. Graham's nis- Philip Cai'tcrct was appointed Governor, and arrived with a states, vei. II., fcw colouists fi'om England, November, 1665, and settled at Elizabethtown. The troubles that existed in the Colony during his adminis- tration, need not be mentioned here. March. 18th, 1673-4, John Lord Berkley conveyed his un- divided half part of New Jersey to John Fen wick, absoluteli/ and in fee simple. ^ Edward Byllynge, of "Westminster, IMiddlesex, England, brewer, through misfortunes in trade became baukrupt, and his creditors suspected he had some interest in the territory conveyed by Berkley to Fcnwick. An inquiry M'as instituted by William Penn as arbitrator, and it was disclosed that such was the fact as to nine-tenths of the property conveyed. That Byllynge's creditors might derive advantage therefrom, and Fcnwick have only his real interest, a conveyance of the said undivided half of New Jersey was made as follows : APPENDIX. 177 Febriuuy lOtli, lG7-t-5, John Feiiwick and Edward 1^1" Nf''rp. *" w- lyngc conveyed the onc-lmlf of New Jersey to Williaui Penn, ^l^^^t:XI, Gawen Lawrie, and Nicholas Lucas, (consideration of £400 to •'"• Feuwick and five shillings to Byllynge,) as releasees to uses — i. c, to iisc of Fenwick in fee as to one-tenth, and to use of releasees themselves in fee as to nine-tenths. The trust for the creditors of Byllynge is not set out in the so,. Lii.or b2, deed : but the deeds from the i-eleasees recite a trust for Eyllynge's secWry of state, .' '' J J o xrc-uton, N. J. creditors. The difficulty -with Edward Byllynge and his creditors delayed the sale of land by John Fenwick in New Cwsarea, and iiis set- tlement of the same as well. The records show the first deed to be dated ]\Iareh 15tJi, 1G74-5, thirty-six days after the date of the deed to Penn, Law- rie, and Lucas, and about two months before the date of the par- tition of the ten lots to Fenwick, hereinafter mentioned. By the first deed (Slai-ch loth, 1674-5,) he conveyed to John ^■'^•^"^ Dowiii, •^ ...*-. Xu. 1,1'. ll,Treli- Adams, clothier, late of Reading, in Berkshire, E., and Eliza- '""• beth his wife, (eldest daughter of said Fenwick,) two thousand acres of laud. The boundaries were not defined, but, as the deed says, " to be taken out of, set forth, and surveyed out cf the said undivided moiety of the said tract of land Avithin said Province of Nbav Cajsarea, or New Jersey, in such manner and form, and according to such laAvs and rules, as by him, the said John Fenwick, or the Governor in his absence appointed by him, Avith the advice of his council, the General Surveyor, by him, the said John Fenwick, likewise nominated and appointed, by virtue of their sevei'al commissions, be thought fit in the most equal Avay and method with other the proprietors and freeholders within the wdiole moiety aforesaid, or otherwise within such part of the whole as the said John Fenwick shall from time to time reserve to him, his heirs and assigns, forever." jNIarch 24th, 1C74-5, John Fenwick conveyed to William g,,,,,,,, d,,(,js, Hughes, cooper, of the parish of St. Paul, Shadwell, in Middle- ''' **' ''"'""'""• sex, England, aud Deborah his wife, five hundred acres, after the same manner. February 25th, 1G74-5, he conveyed to AVilliam Malster, s.^,^„, j,^„j^_ gentleman, late of the city of Westminster, INIiddlcscx, and Kath- f' «■ T'<-"»"- z 178 APPENDIX. N... l.Ticnl.iii. ariiie his wife, and Francis Bowycr, late of the parish of Ilcr, Buckinghamshire, five thousand acres of land in the same manner. These deeds were executed in England, and if the Patroon with his colony arrived in the Delaware river in June, 1G75, many like conveyances for land were made on shipboard, as the dates will verify. The mode adopted for the locating or dclining the boundaries of these tracts of land was substantially the same as that after- wards adopted by the London and Yorkshire proprietors, and still used by the Council of Proprietors of East and "West New Jersey. It seems that there was a partition between Feuwick and the releasees. This is set out by a memorandum dated May 7th, 1G75, on the back of the deed aforesaid to Penn, Lawrie, and Lucas as releasees to uses, which is in these Avords : sai™ riocis, "Memorandum. — That the seventh of tlie third montli, one All. 1, J). ■), Tren- ' '""• thousand six hundred seventy and five, John Fenwick drew the following numbers, viz.: 20, 21, 2G, 27, 36, 47, 50, 57, G3, 72, and his proportion of the one moiety of New Cesaria or Jersey, being divided into one hundred lots, and that he had accepted the same, and the trustees for the other lots were satisfied therein. "In testimony of Mliich, tliey have intereliangcably set tlieir liands. Signed thus : "WILLIAM PENN. "GAWEN LAWRIE. "JOHN FENWICK. " Witness : "Robert Squbb, Jr. "William Roydon." Thus the grant to William Pcnn, Gawen Lawrie, and Nicho- las Lucas became. In effect, simply for the ninety otpial divided l)arts, being the estate actually owned by Edward Byllyngo when John Lord Berkley conveyed said moiety of New Jersey to John Fenwick (March 18th, 1G73.) John Feuwiek proceeded to appropriate his divided ten parts by removing from England with a colony . of purchasers, and occupying the same, (June, 1G75,) and united with said pur- APPENDIX. itO chasers and emigrants in establishing a form of government in manner following : " That the Governor and magistrates shall be chosen by the saiom reed. c " No. 1. ji. 6). Of- advice and consent of the said proprietors and freeholders every Sf'sil.^TKBfo?. year, and ten or twelve persons to be elected as aforesaid to be a council, to remain one year, and then one-half of them to be put out and so many more chosen in their places, and so from time to time, after a year's service, to make a new election of a Gov- ernor and a half of the council, or a continuance of him or them, as shall be most convenient, who shall have full poivcr to make such laws and customs for the good of the Colony and suppres- sion of vice as to them shall seem most necessary and convenient." Signed June 28th, 1675, by John Fenwick and thirty-two other persons. John Fenwick was elected Governor, and thirteen of the sign- ,|,S|ion' ^^^^"^If ers elected magistrates and council. xrsut'uf °^ *"""' A Sui'veyor General, Eegister of Deeds, Surrogate, Sheriff, &c., were appointed, and a government for " Fenwick Colony " itut in motion and authority. /-< • 1 • • 1 1 Ol •«> -11 Minots Bonk Courts were organized, writs were issuetl to the Sheritt, wills offi„|'''f's,„^reury were proven and letters of administration granted, suits tried and "' ^'^'°' '^'""''^''^ decided, and all the forms of law were observed as under any well-organized government. This system was continued for about six years, and until the sitting of the first Legislature at Burlington, N. J., December 21st, 1681, as established under the " Concessions and agree- ments of the proprietors, freeholders and inhabitants of West New Jersey," March 3d, 1676. Many of the persons who had subscribed to the forms of gov- ce^ "lm*,* 'Iri; eminent in Fenwick Colony, June 28th, 1675, also attached their "" names to the " concessions and agreements," and accepted the plan as therein proposed, enlarged and improved ui^on their own. Among these were most' of the Swedes and Finns who had settled on the eastern shore of the Delaware river previous to the coming of the English, who bore allegiance to the Dutch rulers at New York, and acknowledged their Deputy Governor and magistrates at New Castle and Upland. By that act they gave their adherence to the government estab- lished under the " concessions and agreements " before named. 180 APPENDIX. joining with other citizens to make it efficient and satisfactory to the people. This fact bears much significance when the troubles existing at that time between John Fenwick and Governor Andross (who was acting by a commission of the Duke of York under his second patent from the King) are considered. It involved the interests of these prior settlers on the Eastern shore, who were claimed as coming within the control of the New York authori- ties. The endorsement of the " agreements " showed their prefer- ence and which went far to end the whole difficulty. Trenton ^' *^' '^^'^^^ 17th, 1675, (but after most of the before-mentioned titles were executed,) John Fenwick conveyed by a lease for one thou- sand years, to John Edridge, of Shadwell, Middlesex, E., tanner, th«''°New'"j" n°/ and Edmund Warner, citizen and poulterer, of Loudon, E., the Vol. IV.. p. 70. ■ said ten lots in West New Jersey, called " FenM'ick Colony," to secure the jiaymcnt of certain debts by him owing to said Edridge and Warner and other persons. This grant was the source of much trouble to Fenwick and the purchasers of his land ; and in his will his executors are required to make a settlement with Edridge and Warner, they having i.iher T, 486, taken advantage of the contract, under the mortgage, to the in- jury of Feu wick. This curious document was not entered iu the registry office until about ninety years after Its date, it being found among the papers of William Penn in Philadelphia, by William Peters, the agent of the family. The signature of the grantor was proven by Graut Gibbon, May 11th, 1764. in the State, N.J. See the hooks By agreement, a registry of deeds for lands sold by John Fen- sooretoy^of -^yick in Wcst Ncw Jersey was kept in London, as well as one in Salem, which last-named shows the care taken to preserve the titles to the soil, and the good faith in which the covenants of the Patroon were carried out. U^wn the arrival of these adventurers into " Fenwick Colony," they found the lands along the river, within the bounds of their territory, settled by the Swedes and Finns. It was not the policy of the Patroon to question the title of these people to the lands AIUMJNDIX-. 181 they occupied, antl, as an assurance of liis desire for them to re- main, the Surveyor General Avas directed to lay out their several tracts and define the boundaries of the same. Immediately upon the settlement of the bound^iries and title to the land occupied by the Swedes and Finns, the " adventurers and emigrants into Fenwiek Colony" proceeded to accomplish the same object for themselves. As the land M-as selected, the surveys made, returned, and ap- proved by the magistrates and council, the Patroon executed deeds to the purchasers. These M'ere entered of record, and perfected the title to tlie land according to the original agreements. These records are in good preservation, and on file in the office of the Secretary of State, in Trenton,' N. J. July 1st, 167G, Sir George Carteret, of tlie first iiart; "\Vil- Lonmiiig & spi- l'T-» PI 1 /-■) X * n 1 1 • t eel's Laws, 61. iiam Fcnn, ol the second part; Gawen Lawrie, ot the third part ; Nicholas Lucas, of the fourth part ; and Edward Byllynge, of the fifth part, executed the Quintipartite deed, for the purpose of making a division of Xew Jersey. The assignment of the westerly part to William Penn, Gawen Description of * ^Vcst New Jorscv Lawrie, and ' Kicholas Lucas is described as follows : " Extend — tii» Q a 1. J J '■j_|'fS''i"'.Trcn- tJie release to uses, excepting one hundred and fifty thousand * acres called " Fenwick Colony." John Fenwick divided his tract of laud into three allotments — the Salem, the Alloways, and the Cohanzic — the bounds of M"hich, taken as a whole, remain in doubt. Oldman's Creek ou the north and Cohansey Creek on the south, the Cumberland county line on the cast and the DelaM-are River on the west, are sufficiently correct for present purposes. " The Libertie of Colianzic," as laid out and sold by Fenwick in 1676, shows that his territory extended as far south as that stream ; and " the Libertie of AUoway," as laid out and sold in lots by Fenwick iu 1676, shows that his territory extended as far cast as those grants. Johnson s His- " The mauor of West Fenwick," as fixed by Fenwick in 1682, extended from Oldman's Creek along the river to Salem Creek. The grant of "Finntown Point" iu 1676, and the devise of the "Manor of Cesarae" iu 1683, shows his Colony extended along will suicm Re- i\^q j-jyej. ^q i\^q Cohauscy. cords, Trenton. •' These conveyances show generally what John FeuAvick con- sidered the extent of "Fenwick Colony," or what was included in the reservation of one hundred and fifty thousand acres in his deed to Penn. The Legislature of West New Jersey, sitting at Burlington, N. .1., after November 21st, 1681, passed laws for Salem county tory of Sjuleni, p. ci; .Tno. Fenwick*s APPENDIX. 187 — appointed Judges, Clerks, Surrogates, Sheriffs, &c., for tlio same. At every session of said Legislature from November 21st, Lo^iming & spi- 1G81, to the surrender to, and acceptance of the government l)y niw Jersey. ° the Queen in 1702, Salem county was represented. Although John Fenwick did not sign the " concessions and agreements," yet he was returned as a member in 1683, but died before he acted as a member of that body. The bounds of Salem county were not defined l)y law until 1694. The time for holding courts in Salem county was fixed by law. i,,,amin- & g,,,. In 1682, Salem town was made a "port of entry," and James Ncwje^^y. °' Neville ajipointed Collector of the Revenue. In the same year a "market" M^as appointed to be held at Salem town. The appointment of officers and the authority of the laws of the Legislature of West Jersey, does not appear to have been objected to or resisted by John Fenwick. John Fenwick died December, 1683. His will bears date August 7th, 1683, and M-as admitted tp probate May 2d, 1684. Extracts from this document may be properly inserted here. " I John Fenwick late of Binfield in the Countie of Berks i^^^^y n^ , with- the Kingdom of England Esq the late absolute Lord or ie'eTfl'o'chSf Chief Proprietor by law & survivorshipp of the Province of New "'S'""'.'!'™'™- Casaria or New Jersey, and now of Fenwick Colony Avho doth hereby as he hath in the hazarding of my life appeal to the Al- myghty God and doe now appeale to him who is my witness that I never cheated any man nor went about to cheate, circumvent nor defraude Edward Billing. But he Gawin Lawrey and and others his creddite' and others his Faccon hath most covet liaisly and most unxtiauly delt w* me as I have often declared and p-t'cularly in my just claime and remonsterance ; wliomo I doe freely forgive & heartyly desire God the Searcher of all hearts to make them sencible of itt, that he may forgive them also. ********** "Item. I give aud bequeath Fenwick Grove w'"" I liave made a Manor unto Fenwick Adams. ***** 188 APPENDIX, " And in the mean time my Executors shall liave liberty to keep Court Leets and Court Barons in my said INIanor house. " Item. I will and bequeath unto the s* Fenwick Adams * ****** my houses and lands at Fenwick Ivy which I have likewise made a Manor w" is to containe the land from the mouth of Fenwick river to the mouth of INIonmouth river, and up the s* river above "William Penton's planlacon and soe to run in a straight line to Fenwick creek and down the said creek by Mark Reeves plantacon and soe down to the month of Fenwicks river. ****** " Item. I give and bequeath unto my three grand children and heirs Fenwick Adams, Samuel Hedge the younger and John Champncys * * all that tract of land lying upon the River heretofore called Cohanzey w""" I will hereafter have called Casaria River and w"*" is known by the name of the Towne neck and my will is that it together Tcith the land on the other side w"'' is called Shrewsbury neck and other the lauds thereunto be- longing w°'' is contained in my Indian purchase and soe \\\\ the Bay to the mouth of INIonmouth river and uji Monmouth river to the head or furthest branch thereof and soe in a straite line to the head of Casaria river, all w''' I will to be called the Manor of Casaria, and y' there shall be a cittie erected and marshes and lands allowed as my executors shall see convenient * * * * and the Fenwicks divident shall joine to the Towne and Bacons creek, where, my will is, there shall be a house erected and called the Manor house for keeping of courts. " Item. ****** J appoint ]\Ir Samuel Hedge my son in law to be my Secratary and Register for his life where I would have his office kept. * * * " Item. My will is y' my Exers shall have the M'hole power of my estate imtill Fenwick Adams comes of age and untill Samuel Hedge the younger come to the age of one and twenty j-ears and uutill John Champneys comes to the age of one and twenty — to lett sett, sell and disjiose of my whole estate for the paying of my debts and improving my estate. * , * * APPENDIX. 1S9 " Item. INIy AvIU is y' ray Excrs doth settle the Townc of New Salem according to my p-posalls, ord' and agreements under my baud and theirs. *******. My will is that my Executors shall likewise after their selling forth the Towue of Cohauzick y' they first agree upon the lotts y' I would have equall if they think fitt to give every freeholder a lott upon condicon they build upon it — as my Excrs shall think fitt and to allow such large piivilidges and immunities as w""" shall be according to the Kings Letters patents av* impowers me and my hcires as by several meane grants appear. * "Item. ***** J Jq f^]gQ authorize and appynt INIr Samuel Hedge my son in law to be the sccratary to my Exrs if he will accept thereof * * * * and my will is that William Wilkinson be Clarke to my Court Leets and Court Barons ****** and I doe appoynt and authorize Daniel Smith my beloved friend to be the Coroner of my Colony. * * * * * * * * * * * And further 1 doe nominate and appoynt Govcuor William Penn iny much esteemed friend to take upon him the trouble of being one of my Exr's and for his ease of carrying on all the Trust aforemenconed and settlcing of my Colony according to his noble and xtian promises and agreements ords and methods w-ch hath (been) observed and executed by me ever since my arrival ********* I doe likewise appoynt John Smith of Smithfield and Samuel Hedge of Hedgefield and Richard Tiudall of Tindalls Bowery (my s* Survy'r Gen'l) which I desire iu all love to be my Execrs * * * * * * * **' And further my will is y' Edmond Waruer and John Edridge be brouglit to an accompt in order to the reconveying of the Lease of one thousand yeares, for they chose the collaterall security to 'pay themselves' aud never gave me a just accompt above four score pounds and ten pounds wch I left in their hands to pay my debts, according to my remonstrance The rightous God above is my wittnesse that itt is true iu sum and substance aud y' they with the assistance of theire confederates y' have beene the cause of my trouble for this eight ycarcs by 1 90 APPENDIX. false imprisonments, illegally seising of my estate and blasting my good name and taking away my credit, by all w"*", I, my children and j'l^nters Lave been damnified many thousand pounds, and this is truth. Aud-I declare this to be my last will and testament." TJie witnesses to this document were Thomas Yorkc and Thomas Webley. James Nevill, Edward "Wade, and Andrew Thompson, sitting as Judges in the Court at New Salem (May 2d, 1GS4), allowed the probate, and Samuel Hedge, as Clerk, entered the same of record. The deed from John Feuwick to William Penn bears date Liirer E r, 1). March 23d, 1682, and conveys "all his (Fenwick's) right claim 135, Trenton. ' ' •' '' . / b and estate in the whole Jialf part of New Jersey * * * and all the estate he is entitled to by survivorship in the same * * * always excepting the quantity of one hundred and fifty thousand acres to the said John Fenwick his heirs and assigns * * * called ' Fenwiek Colony ' * * . being part of the aforesaid tenth * * * ^.j^jj ^Jjq power and privilege henceforth to hold and hccp Court Leets and Court Barons * * * j-j^^ g^^jj JqJjjj Fenwick his heirs and assigns (for such privileges) to pay to William Penn a royalty of two Buckskins yearly on the twenty-ninth day of September if demanded * * * i\^q game to be conveyed free from all mortgage claims, &c." This deed does not appear of record until the year 1741, when the signature of Samuel Hedge, a subscribing witness, was proven- by Isaac Decou, before John Allen, Esq., one of the Judges of the Supreme Court of New Jersey. This grant extinguished all the estate of John Fenwick as one of the proprietors of West New Jersey. By tlie deed of Febru- sair-m iiQcds, ary 10th, 1674, to Penn, Lawrie, and Lucas, he had conveyed ton. ' ' ' all but his tenth, Mdiich, in that deed, was declared to be held to his use. This new deed to Penn alone, in 1682, put William Penn in possession of all his (Fenwick's) divided interest in said ten lots (excepting the one hundred and fifty thousand acres,) all other right of John Feuwick, except the one-tenth, which iuclndc'd the APPENDIX. 191 oue hundred and fifty tliousaud acres, in the one-lialf of New Jersey, having been before conveyed by the deed of February lOtli, 1G74, aforesaid. The death of John Fenwick so soon after the arrival of him- self and associates in West New Jersey, still more complicated the affairs of the Colony and the title to the soil. These troubles were best understood by himself, and, had he lived,' would have been equitably settled. His will shows his endeavor to explain to his executors what he desired in this regard, and which they appear to have faithfully carried out. The many complications, however, into which he had fallen, was the cause of much delay and vexation on their part, and in the sales of land under the will of the Patroon, the execu- tors had many difficulties to contend with. The contracts made by Fenwick before he left England, for unlocated surveys, had to be carried out, — the sales made by Edridge and AVarner by authority given in their mortgage, must be regarded, — as well as the claims of other creditors who were importunate in their demands upon the property now to be dis- posed of. Richard Tindall was Surveyor General, by appointment of John Fenwick, and made the surveys in accordance with the directions of the executors. A copy of one of these conveyances, hereunto annexed, will sufficiently illustrate the manner in which tlio title was perfected in the purchaser. 192 APPENDIX. MARY HOLME 2000 ACEES OF MARISH To all people to whome this present writing shall come Liber E.saiom William Pcnu p'rietor of the Province of Pennsilvauia, and p'rietor of Salem Tenth in ye p'vince of "West Jersey, John Smith of Smithfield Samuel Pledge of ITedgefield and Richard Tiudall of Tindalls Bawery in the s* County and p'vince of "West Jersey Send"' Greeting Whereas John Fenwick Esq late p'prietor of Fenwick Colo- ncy w"'in the s'' p'vince of AVest Jersey deceased by his last Will and Testament Did nominate and appoynt them the s* William Penn, John Smith, Samuel Hedges and Richard Tindall, to be his Excctrs as in and by his s* Will relacon being thereunto had doth and may more at large appeare. Now Know Yce that for and in consideracon of the sum of five shillings currt silver money in hand paid unto ye s^ John Fenwick as alsoe for divers other good causes and valuable con- sideracons them ye s* William Penn, John Smith, Samuel Hedge and Richard Tindall hereunto moveing they the said William Penn, Samuel Hedge, John Smith and Richard Tin- dall have granted bargained sold aliened enfeoffed and con- firmed. And by these presents Doth gi-ant bargain sell alien enfeoffe and confirrac unto Mary Holme the wife of John Holme of Philadeljihia in the Province of Pennsilvania Gent and to her heircs and ass' forever All that tract of Marisli con- taining 2000 acres scituate lyeing and being on Delaware River and joyneing on Samuel Nicholson land and the land called Anns Grove and Locuss Island as by a certificate under the hand of Rich* Tindall Surveyor Gen' may appeare. Together with the Islands Rivuletts profitts comoditics and other hered' and appurtenances thereunto belonging or appertaining And all the estate right title interest p'ptie claime and demand w^soever of in or to the same and the revercon and revcrcous remainder and remainders thereof.- To have and to hold all the s** Two thousand acres of Marish p'mises and every pte and p'cell thereof unto lier the s* Mary Holme and to the heires and as' of her the s* ]\Iary Holme for- ever and to no other use intent or purpose whtsoevcr, j-iclding APPENDIX. 1 !);> and payeiug therefore yearley and every year the yearly rent of one English shilling on ye 29th day of September unto the heires Exer' or As' of the said John Fenwick deceased And the s* William Penn, John Smith, Samuel Hedge and Eichard Tiu- dall for themselves their heires Exrs,'Admr, and As' Doth covenant and grant to and w"" her the s^ JJary Holme her heires Ex" Adm' or As' That she the s* Mary Holme her Jieircs Exrs, Admr, and Ass' shall and may hold and enjoy all the s'* two thousand acres of Ivlarish and p'misis and receive and take the rents issues and p'fitts thereof from time to time and at all times hereafter w"'out the Ictt, evicion or disturbance of them ye s'' Exr, their heires and As' or the heires or As' of the s'' John Fenwick deceased or any or either of them or of or by any other p'son or p'sons w'''soever lawfully claiming or to claime by from or under them or any or either of them for or in respect of any right title or interest well them or any or either of tliem shall or may have or claime imto the s*" two thousand acres of INIarish and p'misis soe granted as aforesaid or any pte or p'ccU thereof, and not otherwise freed and discharged or otherwise vrell and sufficiently saved harmless of and from all incumbrances w^'so- ever done or suffered by them or any or either of them, in the meantime. In "Witness Whereof the s'^ John Smith, Samuel Hedge and Eichard Tindall have hereunto set their hands and scales be- longing to the Mann'' the 13th day of June Anno Dom 1694. Signed JOHN SMITPI ^ SAM'L HEDGE )- [l. s.] EICH'D TINDALL J Signed scaled delivered and acknowledged before us. JNO. WOELIDGE ) . ,. JONAT. BEECE /'Justices. Eccordcd ye 20th day of June 1G94. SAM'L HEDGE Eecorder 2b 194 APPENDIX. In 1683 an act Avas passed by the Provincial Legislature as follows : " XIII. And he it enacted hy the authority aforesaid, and hereby resolved, That the proprietary, &c., of the Province of Pennsyl- vania be treated -with in reference to the rights and privileges of tliis Province to, or in the Delaware River. "XIV. And further, That (with the Governor and such and so many of his council as he shall think fit,) the Assembly nomi- nate and hereby aj^point William Welch, Samuel Wills, and William Peache to treat in the aforesaid premises." June 11th, 1G83, William Penn, as Governor of Pennsyl- vania, also appointed commissioners to meet those appointed on the part of West New Jersey in reference to the river Delaware. [See Attorney General Gilchrist's " The State of i\\e Question," pages 11, 12, &c.] The position of William Penn was a peculiar one. By the deed of February 10th, 1674, ho was made one of the trustees to ninety parts of West New Jersey. March 23d, 1682, John Fen wick conveyed to him all his right in the ten parts of the same territory (excepting one liun- t drcd and fifty thousand acres.) In the same year, Edmund Warner conveyed to William Penn his share of thirty-two thousand acres purchased of John Fen- wick, and INIay 2d, 1684, he became one of the executors of the will of John Fenwick, with discretionary power in the disposi- tion of his (Fenwick's) real estate in Fenwick Colony. Beside tlie authority to Iiavc located and convey land under ■ the will above named, the riglit to locate and sell land under his deed of March 23d, 1682, existed. This difficulty was anticipated, and eleven days after the proof of the will the following agreement M'as entered into : " Several things discoursed of to be argued upon between Wil- Proccediugs of liam Pcuu, proprietor and Governor of Pennsylvania and terri- toricai Society, torics, aud Samucl Hedge, John Smith, and Kichard Tindall, Vul. IV., p. 84. ' . ... . executors of ISIr. John Fenwick, the said William Penn being pro- prietor by conveyance or deed from the said John FeuM'ick, may from time to time take up land aud dispose of land for the planting APPENDIX. 195 and iniproveineut of the Colouy, provicliug always that the licir.s and assigns of the said John Fen wick Iiave the reserved number of one hundred and fifty thousand acres, that tlie same may from time to time be taken up, planted, or disjDosed of for the use ajipointed by his will for tliat purpose ; that the said Samuel Hedge, John Smith, and Richard Tindall do condescend to that the said William Penn get the neck between Salem Creek and Oldman's Creek, so far as the same is unsold or disposed of by John Fenwick, shall be and is hereby allotted to be disposed of or settled by William Peun from time to time lor the royalties of such lauds as are disposed of, he making full reprise for the same; that John Smith agreeth to resign his five hundred acres in the towue for five hundred acres elsewhere in the same juris- diction, reserving to him a double town lot, each lot being fifteen acres, the remainder to be common until taken by warrauts as town lots — exceijt sixty acres for a town and a commandechant Proceedinfcs of '- *' J\e\v Jersey ihs- to the proprietor, William Penn ; that tlie lots already laid out \^'''^{%; ^'"(4'^' before tlie first day of the eighth mouth ensuing the date hereof, be settled by others paying the value of said lots, as it is adjudged in open court ; tliat there may be a general warrant granted by the said William Penn to the surveying the tenth, enabling him to rc-survey all tracts completed as of more than may be coming to his agent for the time being. " Dated Salem, 13th 2d montli, 1G84. (Signed,) " WILLIAM PENN. "SAMUEL HEDGE. "JOHN SMITH. "RICHARD TINDALL. ", Witnesses : "Arthur Cook. "James Neville." In this agreement, William Peun recognized the right and estate of John Femvick in the ten parts, and that the conveyance from Fenwick to himself for the same was valid and sufficient in law. That his right to make surveys in said teuth lay between two natural boundaries, excepting always such parts thereof as had •bceu before appropriated by the said Fenwick, with a general warrant to locate and rc-survey within the limits mentioned. ] 96 APPENDIX. The eastern boundaiy of tliis territory ^yas Salem Creek to the line of Thomas Piles' ten thousand acres, (now Pilesgrove town- shi}],) and by the same to Oldman's Creek, the western boundary being DelaAvare River, making the limit within the twelve-miles circle, if the same be continued east of the Delaware liiver. In 1693 an act was passed by the Provincial Legislature as follows : " Whereas, the whalery in Delaware Bay has been in so great a measure invaded by strangers and foreigners that the greater part of the oyl and bone recovered and got by that employ, hath been exported out of the Province, to the great detriment thereof, to obviate which mischief. Be it enacted by the Governor, Coun- cil, and Bcprescntatives of this Assembly met and assembled, and by authority of the same, That all persons not I'esidiug within the ]ireeincts of this Province or the Province of Pennsylvania, who shall kill or bring on shore any whale or Avhales within Dela- Avare Bay or elsewhere ^vitliin the boundaries of this government, shall pay one full and entire tenth of all the oyl and bone made out of said whale or whales, unto the present Governor of this Province for the time being." In 1694 an act was passed to ch.ange the bounds of Salem county as follows : " That the jurisdiction of Salem county shall extend from Berkley Elver on the north to the river Tweed, formerly called Back Creek, on the south, and is hereby named and from hence- forth called the county of Salem." And in the year 1700 the bounds were further enlai'ged as follows : " That all persons inhabiting on the river Tweed, being the lower bounds of Salem county, and all settlements below unto the bounds of Cape May, shall from henceforth be annexed to and be subject to the jurisdiction of the court of the county of Salem until it shall be otherwise ordered by the General Free Assembly of this Province." This extended the bounds of Salem county from Oldman's Creek or Berkley River on the north to Prince IMaurice Eiver on the south. APPENDIX. 19'i The many acts and resolves of the Legislature relating to their troubles with the home governmeut, and which ended in the sur- render to Queen Anne, April 15th, 1702, and of her acceptance of tlie same, Api'il 17th, 1702, need not be referred to here. The agreement made between William Peun and the other executors of John Feuwick, before copied at large, gave the sur- veys and sales of land made by and under the authority of the Patroou, iireference as to title and boundary. The care observed by Eichard Tindall in fixing and describing the lines of these grants, shows hira to have been a pains-taking and competent surveyor, whose field work to this day is so re- garded by practical men. The fii'st survey made by William Penn under the as;reemcut i^iijor a loo. •' •' ^ ^ , Surveyor Gonc- with the executors of John Fenwick, deceased, dated loth of the rars oisce uui- ' ' liiigton, N. J. 2d mouth, 1GS4, was for fifteen thousand five hundred and fifty- three acres, and bears date 2d month 24th, 1706, lying between Salem Creek and the river, including the Boughtown tract on the north, and extending along the river to Salem Creek, excepting all prior surveys. [See map.] The second survey made by William Penn under said agree- lii'or a si, meut was for four thousand five hundred acres, and bears date 4th mouth 13th, 1706, and situate betv.'cen Salem and Oldman's Creek, west of Thomas Piles' ten thousand acres. [See map.] The third survev made by William Penn under said aoree- Ln.or a cs, IT 1 ; ^ 1 BiulingUm. ment was for two thousand acres, and bears date 4tli month HAh, 1706, and adjoined the last-named survey. [See maj).] The fourth survey made by William Peun under said agree- Lii.cr a ion, ment was for two thousand acres, and bears date 4th month 16t]i, 1706. [See map.] The fifth survey made by William_Peuu under said agreement i,iijpr a ion, was for three thousand six hundred acres,'and bears date 8th "' '"^ """ month 20th, 1706. [See map.] The most of these surveys contained large exceptions, being land before appropriated and conveyed by John Fenwick and 198 APPENDIX. those located through grants made by James Nevill as attorney for William Penn, grantee of Edmund Warner. All of these surveys lie wholly within the limits of tlie twelve-miles circle, if Extended east of the river. Surveyor Gene- May 14th, 1738, Joliu, Tliomas, and Richard Penn made a liugton, N.' J. re-survey of part of the above-named land, containing (after many exceptions) one thousand seven hundred and seventy-nine acres, with a front on Delaware River of nearly four miles. Liber B C23 Octobcr Ist, 1C97, Philiii Ford conveyed to William Penn anil 0-J4, Trenton. , i , r. \ . „ -.xr -ivt t ^ one ■whole share ot the ninety parts ot West JSew Jersey, ana November 3d, in the same year, Daniel A\'aite also conveyed to him a like quantity of said ninety parts, and iinder which AVil- liam Penn and his sons, after his death, made various surveys, but none of M'hich lay within the Salem tenth. As before mentioned, William Penn became the owner of Ed- mund AVarner's share of thirty-two thousand acres in Fenwick's ten lots, which same wei'e unlocated. James Isevill, as the attor- ney for William Penn, proceeded to sell and survey said unlo- cated acres to various persons, the first of which surveys was i.ibcr A, or rcturucd to Michael Lacroy for three lunidred acres, and bears NevilTj* Book, I). , /-» i c\>~ » -, ^^ 7,Trcutuu. (late October 2/th, 1684. Several of these locations were made to the Swedes and Finns, who were grantees under John Fenwick, and lay near the land named in said deeds, fronting on the Delaware River, and within the bounds of the agreement of the 13th of 2d month, 1C84. Richard Tindall, Surveyor General under the will of John Fenwick, fixed the boundaries and retoi'ued a map showing the situation, &c. Tliis was a proper precaution on the part of Wil- liam Penn — avoiding trouble with the adjoining owners, and having the sanction of the representative of the Fenwick intei-est. A cojiy of one of these deeds is here given in full. \ 71 V 01 rfB'-. i L \L ,ui bar, .i>viH tjiu7;>;I-Ai yJj lo jeiil'l ("nJn^a -. ui iifii^I aJJib i/iili isAe iia^^ .rf'tfii m'' nt «o[i(it H sIboB .i ' i i.i.rtiT ;5Tr . .o'< .8f8I .a •I / ■ =ho9 bi(iwb3 oi oion I .6 .ort u') .^^ (fjTJB 001-08 £1? .0 .0/. .01 nr .(T ./- .98ooK ■ rfT r- {f\ f.OT T? T oZ I- .e .0/ AIH'ENDIX. J 99 MICHAEL LACROY 300 ACRES OF LAND. , ■To all people to wliome tins present writin"; shall come.' J- ^ ^ ^ R c c r il o (1 1 11 "Wm Penn propriet' aucl Cover of the Province of PcnnsiU- H"..!; a of nc- vania and the Territories thereunto annexed, and propriet' of •'"^•. r- f, *'■• Salem Tenth, in the province of New "West Jersey Sendeth Greeting "Whereas Edmond Warner late of the Province of Penusil- vania afores* IMarch' being invested in 32000 acres of land purchased by him and others of 'John Fenwick late of Fen- wicks Coloney Esq &c. as by severall deeds being upon record relacon being thereunto had may more at large appear. And AYhereas ho the s* Edmond "Warner did for a valluablc cousideracou in hand payd liy him the s'^ "Wm Penn grant bar- gaine and sell all his right title interest pptie, claime and de- mand w'"soevcr of in or to the s"" 32000 acres of land unto him the s^ Wm Penn his heires and assigues forever. Now Know Yee that he the s'' Wm Penn for and in consid- eracon of the sum of fiveteeu pounds ISIarch"''* pay at Country price to him the s'' Wm Penu in hand payd by Michael Lacroy of Salem Tenth in the province afores** planter at or before the ensealing and delivery hereof the receipt hereof the s'^ Wm Penn doth hereby acknowledge himselfe therew"' fully satisfied contented and payd thereof and every p'° and p'cell thereof he doth hereby acquitt exhonerate and forever discharge him the s* Michael Lacroy his heires and assignes forever by these pres- ents As alsoc for divers other good causes and considerations he the s* Wm Penn hereunto espetiijlly moveing he the s** Wm Penn have granted bargained sold aliened enfeoffed and con- firmed And by these presents doth grant bargaine sell allien enfeoff and coufirme unto him the s* Michael Lacroy his heires and Assignes forever Three hundred acres of land Marish Swamps and cripples cittuate lycing and being on the east side of Dellaware River in the s*" Tenth and p'vince afore'* being butted and bounded by the compasse as followeth (vizt) Begin, ning at a stake sett up at high water marke on the East side of Dellaware River being the bounds betwccue William Gill John- son and Michael Lacroy marked wth the letters M W from 200 ArPEN'DTX. thence South West to a stake standing at high ■«-ater niavke mark* w* the letters J ]M being the bounds betweene John Lacroy and INIichael Lacroy 120 pearches from thence South East into the woods tlioroo the Marish 400 perclies. To a Spanish oakc tree mark' w"" I M from thence North East for a head line 120 perches to a black tree mark' m'"* the letters M from thence to the first meuconcd stake 400 perches w'"" w'*' bounds and limitts is contained three hundred acres of land Marish swamps and cripples as by a certificate under the hand of Eichard Tindall Surveyor General bearing date the 2d day of August 1684 All av"'' said Tract of three hxmdred acres of land Slarish swamps and cripples together w'" the rivuletts quaries woods comoditics advantages and other hercdittaraents w"soever belonging or in anywise apptaining And also all the estate right title interest pptie claime and demand w^soevcr of him the s* AVni I'enn of in or to the s* Three hundred acres of land I\Iarish swamps and cripples as aforcs* and all and singular other the premises herein before mentioned or intended to be granted bargained and sold, or any pte or p'cell tliereof And the revercon and revercons remainder and remainders thereof To have and To hold the s* three hundred acres of land Marish swamps and cripples w"" the appurtenances and heredittamonts and all other the p'mcsis herein and hereby gixintcd bargained sold aliened enfeoSfed and confirmed and every pte and p'cell thereof unto him the s* Michael Lacroy and to the heires and assignes of him the s* IMichael Ijaeroy for ever To the onley use and behoofe of him the s* Michael Lacroy And to the heires and assignes of him the s* Slichael Lacroy forever and to noe other use intent or purpose w'"soever Yielding and payeing therefore yearley and every year the yearely rente of Three bushels of winter wheat on every 29th day of September unto the s* Wm Penn his heires and assignes forever And the s* "NVra Penn for himselfe his heires executors and administrators Doth covenant and grant to and w"" him the s* jMichael Lacroy his heires and assignes that he the s* ^lichael Lacroy his heires and assignes shall and may hold and enjoy the s'^ Three hundred acres of land Marish swamps cripples and p'mesis And receive and take the rents issues and p'fitts thereof ft-om time to time with""' the Ictt evicion or disturbance of him the s* Wra Penn and the s* Edmond AVaruer theirc heires and assignes or any or APPENDIX. liOl cither of thorn or of any other p'son or p'sous churning or to chiime by from or under him, them or any or either of tliem for or in respect of any right title or interest w'"" they or any or eitlier of them shall or may have or claimc unto the s* Three hundred acres of land Mavish swamps cripples and p'mesis soc granted as aforesaid or any pte or p'cell thereof And not other- wise, freed and discharged or otherwise sufficiently saved harm- less of and from all incnmliranccs done or suifcrcd by him them or any or cither of tlicui iu the nieane time. In ^\'itness Whereof the s'' AVilliam Pcun lun-c hereunto sett his hand and scale this 27th day of October in tiic yeare by the English acct 1G84 and in the oOth ycare of the I\eign of Charles the second King over England 1 •^ SettleiiU'Tits oil West India Company, and in the year 1623 the said company Deiawnrc luver, sent a shiji with emigrants, under the command of Cornelius INIay, to America. They arrived in Delaware Bay, and sailed up the river to near where Gloucester City now stands, and erected a fort, which was called "Fort Nctssau." These were the first Europeans who sailed up the river Dela-ware, and by right of discovery the Dutch claimed tlic territory on both sides of the stream, and purchased lai'ge tracts of the Indians on botli I'^'i's v- w- sides of the river. July 2d, 1626, Gustavus Adolphus, King of Sweden, granted reiiis,i..2s. to William Usselins, a merchant of Stockholm, jiower to organ- ize a trading company, to settle a colony in America. Tliis was abandoned. The patent was renewed by Christiana, Queen of Sweden, and in 1637, two ships sailed from Gottenberg, oil the west coast of Sweden, and arrived in the Delaware river, at a place they called "Christiana," in the spring of 1638. These ships were Ferris, r-ss. the " Key of Calmar," and the " Griffin," under command of Peter Miuuit. May 6th, 1638, William Ivieft, Governor of New Amster- Ferris, r.w. dam, and residing at Manhattan (New York), and by direction of the Dutch authorities, issued a protest against the Swedes, under authority of Queen Christiana, making any settlements on the Delaware river. This protest was not regarded by ISIinuit, but they proceeded Ferris, ii. is. to erect a fort, and purchased large tracts of land of the In- dians. In 1610, several companies of emigrants left Sweden, and came to New Sweden, on the west bank of the Delaware river. Tlie authorities of Stccdcn appointed Jost de Bogart as Chief Fenis, i.. x. 208 APPENDIX. Director of the Hollanders who had settled in New Sweden, and in 1642, instructions M-ere sent to Governor Printz in regard to the " Dutch f:\milies " about Fort Christiana. Ferris, p. 58. Peter Minuit, Governor of New Sweden, died in 1641, and Peter Hollendan succeeded him as Governor, &c. ■ He remained about one year, and John Printz was appointed Governor of ifcrris, 1. 61. Ncw Sweden, and arrived February 15th, 1643. His instructions were, generally, to preserve the manners and customs of Sweden, to encourage agriculture and manufactures, Ferris, p. 63. to cultivatc friendly intercourse with the Dutch, but to deny their pretended right to any part of the land on the west side of the river, and to regard the Indians as the rightful owners of the laud, &c. Printz built two forts, one at Tinicura, and one at Elfsborg, In 1646, a Dutch ship arrived in the Delaware. It was ordered into the Schuylkill by the Dutch commandant at Fort Nassau (Hudde). Governor Printz ordered it to leave the Schuylkill, During this trouble, Hudde was ordered, by the Dutch authorities at New York, to purchase a tract of land of the Indians, where Philadelphia now stands. Printz objected to the purchase. The Swedes destroyed the Dutch settlements on the west side of the Delaware and Schuylkill. Governor Ivieft was succeeded by Peter Stuyvesant, ]\Iay 27th, 1647, at Manhattan. July 19th, 1651, Governor Stuyvesant purchased of the In- dians a large tract of land on the west side of the Delaware river, and built a fort at New Castle, which they called Fort Cassimer. The Dutch increased their military force in the Delaware forts, and iu view of pending hostilities, Printz returned to Fuiris.p.si. Sweden for direction and advice. Before his arrival thercj a man-of-war ship, "Tlie Eagle," was dispatched, which broug3it John C. Eising as Counsellor to the Governor, and Peter Lind- strom, ]\Iilitary Engineer, &c. Ferris, p. 81. ^i^g gjjjp proceeded up the river, and ca^Dtured Fort Cassimer (New Castle) as standing on Swedish (/round. John C. Eising was appointed Governor of New Sweden, &c. August 30th, 1C55, Governor Stuyvesant arrived in the river APPENDIX. 209 Finis, 1.. 01. with a squadron of ships and many soldiers, to conquer the Swedes, and captured Fort Trinity (New Castle). In the correspondence between Governors Stuyvesant and Rising, each denied the claim of the otlier's Government to the territory, but Governor Rising eventually capitulated, and arti- cles were signed September 25th, 1655, and the Swedish do- minion of the Delaware river passed to the Dutch. Some deeds were given to the Swedes by the Dutch, to con- Morris, p. im. firm their title, and also by Lord Lovelace (the English Gov- ernoi'), for the same purpose. In 1656, many settlers came to Xew Castle, and the Governor and Council executed seventy-five deeds for land thereabouts. Fcnis, 11. 105. November 29th, 1655, John Paul Jaquet M'as made Governor by the Dutch. The country on the west side of the river was divided into hco colonies, one extending from Christiana creek to Bombay Hook, was called " The Colony of the Company ; " the other, extending from the creek northward, up the river, was called " The Colony of the City." It belonged to the city of i\iris, p. loe. Amsterdam, and by it governed through Peter Stuyvesant and Council. Deeds for the land were made by the Burgomasters and Council of Amsterdam. April 20th, 1657, Jaquet was removed, and Jacob Alrich appointed Governor over the Colony of the City ; Goeran Van Dyke was made Inspector of the Swedes. October 28th, 1658, William Beekman of Amsterdam, was chosen Vice-Govcrnor of "The Colony of the Company," to reside at Altona (Wilmington). In 1659, tliere were one hundred and thirty families of Swedes rciris, p. los. on the Delaware, being in majority of all others there. Governor Alrich died in 1659, and Alexander Hinoyosa suc- ceeded him, February 7th, 1663, "The Colony of the Company" was united with " The Colony of the City," making one colony of the territory extending from Bombay Hook up the river the extent of the settlements. The war between the States of Holland and Great Britain gave all the territories in America to the Crown of England, and August 21th, 1664, Governor Stuyvesant capitulated with 2d 210 APPENDIX. Ftnis, pp. 110, Colonel Nicolls and the Dutch dominion over the North and South (Delaware) Rivers, and tlie settlements thereon passed to the British King, Charles II. By a commission dated Sei^tember 3d, 1664, Sir Robert Carr proceeded to tlie Delaware to accejit the allegiance of the people to the new powers, who accepted the same peaceably. To Lord Baltimore's son he was directed to say : " Your commands are to keep possession in his 3Iajcsfy's men behoof and right" and if he pretends a right thereunto by his patent (which is a doubtful case) you are to heep possession till his majesty is informed," &c. Colonel Nichols was made Governor of New Netherland under the Duke of York. FiTiis, p. 123. In the war with the States of Holland on the one side, and England and France on the' other, New Netherland was recon- quered by the Dutch, in August, 1673. Anthony Clove was appointed Governor of New York and its dependencies, and he made Peter Alrich deputy commandant of the Colonies on the west side of the Delaware river. February 19th, 1674, this country was by treaty restored to the English. Fciris, p. 125. October, 1674, Edmond Andross Avas appointed Governor of New York, Pennsylvania, Delaware, and New Jersey, and he appointed Captain CantwcU and "William Tomm to take charge of the fort at New Castle. The attempt to enforce the payment of duties by all vessels jiassiug up the Delaware river for poi'ts in New Jersey, called forth a protest from the proprietors and trustees of that jjrov- ince (William Penn being one), who claimed that the right of government had been granted, &c., M'hich caused said demand to be abandoned. SCO Minutes of Thc Swcdcs and Dutch having recognized the authority of McmoiraofUis- tlic English Crown, those settled on either side of Delaware rcn'nByivaiiia, river established two courts, one at New Castle, and thc other at Upland, under the government of Charles II., King, &c. The records of the Upland Court commence November 14th, 1676, and end June 14th, 1681. There being some difficulty as to the extent of the jurisdiction of the said courts, a division line or boundary, was agreed upon / I V \ u .-'X. f ^^ / -^^ . ''^ \ -^T^ SJ w- o X -^ !? o > O ^ o X 1— 1 o n ^•v cc • cc )^-j s- ■_'^ ^ ■t-3 i3 ^-M f— ' ' — '• > ■^ CO ?; -^ _ ;?^ ■*n > ^ > C X = «> C s ^ S^ W ^ c * «;■ n ^ 4 r- ?c •J 1^ o ■x^ T«S .-, _■ ^ o r> c^ •^ »-^ S5 ^ S ^ ^ o 5 v«4 9 o — cc r: 3 w-J t? " CC jsBiataiijWiaBaBaaeiaeaaaiS APPENDIX. 211 November 12th, 1678, which extended down Stony creek, now Quarryville creek, to the mouth, and thence across the river to Single Tree Point, on the 'New Jersey shore, about one mile below the mouth of Oldman's creek, in Salem county. New Castle at that time was perhaps the largest town on the western shore of the river. The accomjjanying map may explain said boundary. In anticijDatioii of the grant made by the King to William Penn, " for a tract of land in ye north part of America," several questions were submitted to the committee of " Trade and Plan- tations," also to the Attorney Geneuil and Lord Chief Justice North. Protests were entered by the agent of Lord Baltimore, exam- ined by the committee, the Attorney General, and Lord North. An examination of the correspondence hereunto annexed will show that the only difficulty was the position of the southern boundary ; twenty or thirty miles northward of New Castle town was the first suggestion, so as not to interfere with the planta- tion or Colony of New Castle — "ye xvhole being planted iiromis- cuously by Swedes, Flnlanders, Dutch, and English." To this proposition AVilliam Penn objected, for the feason that " he shall have so little of ye river left as to very much prevent ye hopes he hath of improving ye rest within his patent." He was willing to accept twelve English miles north of New Castle as his boundary, to Avhich the Duke of York did not ob- ject, and finally settled upon by Lord Chief Justice , North in these words: "And on a circle drawn at twelve' miles distance from New Cattle northwards and westivards." The claims made by the agents of Lord Baltimore were con- sidered by Lord North, and no doubt held by him as in no way interfering ^Yith the twelve-miles circle, and which circle was fixed by him to meet the views of Penn, who already had the approbation and favor of the King and Duke of York to settle the territory. A synopsis of the letters and minutes of council, &c., as taken from manuscript copies in possession of the Historical Society of Pennsylvania,. immediately follow. 212 APPENDIX. Extracts of Letters in the " Plantation Office," London, England. Council Chamber Htli of June 1680. To Sir J. Warden Sir The R' Hou tlio Lords of the Committe for Trade and Plantations having rec* a Petition from "William Penn, referred to them from his Majesty, concerning a Tract of Land in y° north jjart of America \vh.'^ he M:onkl undertake to settle and render a profitable Plantation to y" Crown, but they must first consult you * * in regard to his Majestys Propriety * * * in those parts * * you Mill send a Copy of Petition &c. * * and they to report whether such a Plantation would intrench on y" Patent of his Eoyal Highness &c. * * * * * * * * St. James 23d of June 1680. For Wm Blaythwaite Sec to Lords of Trade ci-c. Sir I had answered your letter of the 14th sooner but that of my going to Windsor * * * and also made me think it proper to acquaint the Duke with its contents first * * * ^Vhat I have to say now is, That by all that I can observe of y' Boundaries mentioned in Mr Penns Petition they agree well enough with y' Colony or Plantation which hath been hitherto, ever since the conquest of New York by Col Nichols held as an appendix and part of y° Government of New York by y° name of Delaware Colony or more particularly New Castle Colony that being y° name of y° principle jjlace in it. Y" whole being planted promiscuously by Swedes, Finlander's, Dutch and English) all mIucIi hath been actually under y° gov- ernment of his Royal Highness Lieutenant at New Nork hith- erto. But y' as its proper Boundaries (those of Latitude aud Longitude being so very little known, or so ill observed as ex- perience tells us in all y' "West Indies.) 1 am not able to say if this be what Mr Penn would have. I presume y° Lords of Trade * * * will not encourage his pretentions to it because of y° above mentioned, * * which shows plainly y° Dukes right preferable APPENDIX. 213 to all others uudcr Lis Majestys good likiDg * * * tliougli it should not prove to be strictly within y' limits of y° Dukes Patent * * * ]^,^(. j^ j^ ^^ ^^y QtJigj. parcel of land unimproved in those parts which is without all other Patents and not interfering w' the posessions of his Majestys subjects already settled there * • * * I humbly submit * * :); j-,Q^y jfVjj, yo j^^.g -^yiUing ^ Recom- mend y° Petition. ******* June 2.3d 1680. From Lord Baltimores Ar/ents &c. In answer to yours in refference to Mr Pcnus Petition &c * * * something must be reserved to Lord Bal- timore * * * jf yo grant pass to Mr Penn for laud in America * * * yo g^oje shall lay North of Susquehanna Fort * * and on a direct line from s* Fort to y' Delaware River * * * fg^, y« j^q^j is y° Bounds of Maryland Northward. - * * * it may contain general words of restriction * * * as to Baltimores interest. * * * y^^e wish to see the Grant before it pass. ****** Yours &c. Baenaby DrxcH. Rich'd Bcrav. Whitehall 16th Oct 1680. To Wm Blaythwaite Sec of Lords of Trade &c. SiK ***** since then Mr Penn hath represented to y° Duke his case and circumstances (In relation to he hath reason to expect favor of his Majesty touching that request.) * * * His ilajesty orders me to let you . know that he is very willing Mr Penns request may meet with success * * * that he may have a grant of y" tract of land w"" lies on y° north of Xew Castle Colony (part of Dela- ware) on y' West side of Delaware River, beginning about y° lati- tude of 40 degrees and extending. * * * * JO Werdex. Council Chamber 8 Nov 1680. To Mr Attorney General. Sir His Majesty having referred the Pet" of Mr Penn to y" 214 APPENDIX. Lords of Trade &c. * * * to Grant him a tract of Land in America * * * ^nd having rcc from him y° inclosed Draught of y° Grant which he desires * * * you will report if you have any thing to object by next Thursday afternoon. ***** . Nov 18th 1680. To Mr Werden SiE I formerly sent you y° Petition of Mr Penn touching a tract of Land adjoining to New York and Kec* yaur answer which I presented to y° Lords of Trade * * * and now send by their order so much of y" Patent (by extract) which he is soliciting * * * gg concerns the boun- daries, so you may make your objections in behalf of his Majesty. *********** CouxciL Chamber 18 Nov 1680. To the Agent of Lord Baltimore On y" 14 of June last, I sent you y° Petition of JNIr Penn, who prays a Charter * * * fo^. making a settlement north of Maryland and rec* your answer on y" 23d following and laid y° same before y° Lords of Trade * * * -^nd if you have any objections, you must make them * * as on Tuesday P IM they will make up their Resolution. * * * **** * * * * * * St James 20th Nov 1680. From Jno Werden to Wm BraytJmaiie Sec of Lords of Trade * I rec your. letter of the 18th inst of some part of Mr Penns patent for Land in America. It is first proper to have the advice of persons learned in the law for settling y' boundaries of any new Patent, which may be liable to encroach on others possessions. * * * I believe y" description by Longitude and Latitude very un- certain. * * * jj^it it being y° Dukes intention that Mr Penns grant be bounded on j' East by Delaware River * * * and his Southerly boundary be 20 or 30 miles beyond New Castle (which Colony of New Castle is north- ward and distinct from Maryland.) * * * _ AVhich extent northward from New Castle we guess M'ill be in the 40th degree of Latitude. Therefore if Mr Penns patent Ijc so worded as to leave New APPENDIX, 215 Castle 20 of 30 miles beyond it free and to be bounded on-y° East by y° Delaware river, I think this is all y" caution it needs. As y° Duke will not concern himself how flir North and West y° Grant to Mr Penn Jg. ***=»■* * J° AVeedex. St James 23 Nov 1G80. To Win Blaythwaitc Sec of Lords of Trade Mr Penn having fallen into discourse with me about his Grant in America, he seems to fear if his southern limits be rightly set at 20 or 30 miles North from New Castle town, he shall have so little of y' river left as to very much to prevent y° hopes he hath of improving y' rest within his Patent * * * j^^^j, on y* other side he is willing y' 12 Englisli miles North of New Castle be his boundary and believes that distance will fall under y° 40th degree of Latitude * * * Ye Dukes mind is to keep some convenient distance from New Castle northward for a Boundary of that Colouj^ * * * but cannot see why we should be so particular in a country where we know so little * * * when all y° benefits are intended for this Patentee. J° Werdex. Dec 16th 1G80. Summons to Lord BaUimorcs Agents The Lords of Trade have appointed to hear y" Exceptions of Lord Ealtimore to Mr Penns Patent on Saturday y" 18tli at 4 P M. You are not to fail as they will proceed to a resolution etc, J° Werdex, As y" same is bounded on y° East by Delaware river from 12 miles distance northward of New Castle Town, * * * beginning of y° 40th degree of Northern Latitude * * to extend Westward five degrees, * * And on a Circle drawn at 12 miles distance from New Castle Northwards and Westward * * * j^j^,^ ]^y ^ y.[g[^^ line Westward * * * Excepting all lands M'ithin 12 miles of y° Town of New Castle that shall happen to lie within said bounds, * * * * * * * • AVm Penns boundaries settled by me Ij. C. J. North, 216 APPENDIX. May it please your Lordships I have considered the Petition of Wra Penn for his grant in America * * * j^^^ y' Patent granted to his Royal Highness of Xcw York being bounded Westward by y* East side of Delaware Bay, is suffi- ciently distinguished from INIr Penns grant, which is bounded Eastwardly by Delaware bay and River * * * But I am further to offer * * * ^|jj^^ there are several Dutch and Swedish plantations which have been long under the English Government that lie scattered on y° Western shore of Delaware river and some perhaps within j" bounds of Mr Penns Petition, and have acknowledged y' authority of his royal highness or of Lord Baltimore. From ye Plantation Office ****** JNIay it please your Majesty &c. * * * * In obedience to your IMajestys order we have prepared the Draught of a Charter * * * to William Penn * * for a Tract of Land in America. * * February 24th IGSO-L The papers. Letters, Reports etc between Mr Penn, the Board of Trade, Lord Baltimore and J" Werden, previous to the Grant of Pennsylvania, Also the Settlement of ye Pennsylvania bounds by Lord Chief Justice North, are bound in a Book at ye Board of Trade, entitled "Pennsylvania, New Jersey and Carolina papers Volume I" from whence they were copied this June 26th 1735. Council Chamber at Whitehall April 17th 1683. Two letters rec* from Lord Baltimore dated 8th of February 1682, with au account of a Conference with William Penn * * * about the boundary of their Provinces * * * Penn had ordered some persons not to pay any more tax to Lord Baltimore * * * ^}-,gy. i^gjyg j^ Pennsylvania * * * to Avhich he protested * * * and Issued orders to Sheriffs &c * * * Whereupon ye Lord Keejjers &c * * * are to hold the said dispute under advisement &c * * * That letters be sent to Penn and Baltimore to try and settle the difficulty &c * * APPENDIX. 217 May 30tli 1682. Richard Burk, servant of Lord Ealtiiuore on Petition asks that the Grant that is passing to his Royal Highness of ye parts adjacent to Delaware Bay, may not pass ye Great Seal uutill his Majesty be satisfied of the Extent of the Land granted to Lord Baltimoi'e * * * y^ ^^^^^ Burk saying the said lands lie within the Patent of Lord Baltimore. Mr Penn's agent claims the said laud uever was in Balti- more's patent, but settled by Dutch and Swedes, and that the Grant of land to Baltimore was not for lauds inhabited by Christians — so ye surrender of ye country having been made to his Majesty in 1664, Baltimore can have no right unto the same it having ever since been in possession of his Royal Highness * * * Baltimore can receive no injury by ye Grant that is desired * * * Mr Peuns agent imdertaking to jirove that the Dutch and Swedes had possessed this country in 1609, or at least before the date of Baltimore's patent. Feeruarv 12th, 1683-4 A letter was read from Lord Baltimore stating he ■would rc- -turn to England in April next, and the fu^'thcr liearing of the dispute was postponed untill his arrival. July 23d 1684, Lord Baltimore attending with INIr Ford agent of Mr Penn Mr Ford stated that Sir Edward Herbert, Solicitor to his Ma- jesty being absent he could not proceed. Sept 30th 1684. Sir Edward Herbert stated that he could not proceed without Mr Penn being present, who was soon expected in England. Aug 18th 1685. r On petition of Mr Penn, that ye difference between Lord Baltimore and himself is about a title of land and not of power * * * Sept 2d 1685. Lord Baltimore and Wm Penn appearing, Mr Penn pro- ceeded to prove that ye country of Delaware was inhabited by 2 V. - 218 APPENDIX. ye Swedes and Dutch before ye date of Baltimore's jiatent, Peun to give Baltimore copies of his documents. Oct 8th 1685, Baltimore and Penn attended, Baltimore gave an account of one Ploydcn sailing up ye river in 1642 and did not see any houses there at that time. A copy of a report of the Commis- sioners of Foreign xiffairs, Apl 4th 1G38 about the Isle of Kent between Lord Baltimore and Mr Claybornc and about ye set- tling Delaware Bay and Eiver, to ye southard of the 40th degree by ye Dutch and Swedes. * * * Oct 17th 1685. Their Lordships agreed to Report that the Tract of Land now in dispute does not belong to Lord Baltimore, and as the boundaries are iu dispute, also adjudge that the same belong to His Majesty. Oct 31st 1685. Their Lordships taking into cousidei'ation what might be the true boundaries of ye country of Delaware, between Penn and Baltimore, it is proposed that ye Avhole Peninsula called Dela- ware be divided into Two equal parts between his Majesty and Lord Baltimore. Nov 7th 1685. Their Lordships agree that the Peninsula be divided by a line running North and South through the Peninsula, and that half towards ye Delaware Bay and ye Eastern Sea belong to his Majesty and the other to i-eniain Lord Baltimore's. Council Chamber June 14th 1680. The petition of Wni Peuu praying in consideration of debts due his father that a Grant of land be made him of a Tract of Land in America * * * to be bounded on ye East by Delawai'e River &c * * * jj^, Pe^u being asked what extent of land will satisfy his debt, says three de- grees northward &c * * * ^^ ^Qpy ,)f ^]-^q Petition sent to Sir J" "Wcrden * * * June 2oth 1680. Mr Penn agrees that Susquehanna furt shall Ijc the Bounds of Baltimore's Patent * * * APri;]s'i)ix. 219 Dec IGtli 1680 Mr Pemi, Lord Baltimore's Agent and Sir John "Werden requested to attend next meeting * * * January 15th 1G80-1 Tlie boundaries of Mr Penn's Patent settled by my Lord Chief Justice North, and the M-holc to be read at the next meeting. January 22d 1680-1 Upon reading tlie Drauglit of Penn's patent, The Lords of Trade &c request the Chief Justice to correct the same so that War or Peace may be declared by the King, that all acts of Parliament relating to Customs be duly observed &c * * * The Bishop of London also requested that Penn be required to admit a Chaplain upon request of any number of Planters etc II. March 4th, 1681, Cliarles II., King of England, &c., by let- ters patent, granted unto "William Penn a certain tract of laud in America, called "Pennsylvania, as ye same is bounded on ye east by Delaware River, from twelve miles distance northwards from New Castle town," &c., " and on ye south by a circle drawn at twelve miles distance from New Castle northwards and west- loards unto ye beginning of ye fortieth degree of nortliern lati- tude," &e. " In but this sino;le instance has a circle been employed to L,-.tr..i,.-3 aj- 1 ,° r- ■ o 1 T • • dress, ISoi. indicate a dividmg line or contiguous otates, and the inquiry at once suggests itself wliy such a line was established." In 1655 the territory on the west side of Delaware River, as settled by the Dutch and Swedes, was divided into two parts makins: Christiana Creek the boundary line. That from said ef Delaware luv- ^ , *^ ^ or, p. Iu6. stream northxoardly belonged to tiie city of Amsterdam, and was called the " Colony of the City." Grants of land were made to settlers by tlie Burgomasters and Council of Amsterdam within said Colony of the city, and it is possible tlie southern boundary of Penn's patent may have had regard to the northern line of the Colony of the city, and the claims of settlers within the limits thereof. 220 APPENDIX . Holmes' map of Pennsylvania, begun in 1681, and continued under the supervision of "William Peuu (a part of -wliicli is here annexed,) shows how the proprietor made sales of his land along the southern Ijoundary, and was careful to avoid difficulty witli older claims. August 21th, 1G82, James, Duke of York, granted to William Pcnu " All that the town of New Castle, &e., and all that tract of land lying within tlie comjiass or circle of hrclve miles about the same, lying on the Delaware Eivei'," etc. This line was doubtless intended to be the same as that of the patent from the King to Penn (March 4th, 1G81.) The authorities of the counties of New Castle and Chester had some difficulty in fixing the limit of jurisdiction of each bailiwick, and by order of AVilliam Penn certain jiersons Averc appointed (the 8th month 28th, 1701,) to run and settle the same. Although "William Penn claimed at that time to be the owner of the soil on both sides of that part of the circle, yet the com- missioners were directed by his commission, hereunto annexed, to settle the same according to the King's Idlers patent and the deed of feoffment from the Dulce, keeping in vicM', doubtless, the territorial jurisdiction of the courts of New Castle and Chester, which had been i-ecognizcd in the patent of the King to Penn in 1681, and identical with the grants of land made by the Burgo- masters and Council of Amsterdam within the bounds of "the Colony of the City." This avoided any trouble that would occur if the limit of jurisdiction was changed in said counties, and leave the settlers within the bailiwick where their deeds had been recorded. These or perhaps better reasons must have influenced the pro- prietor in perpetuating the boundary, which even then, and for many years after, led to so much litigation and expense. The commissioners proceeded with much cai'c in running the radius of twelve miles from the end of the "Horse Dyke" at New Castle, and in fixing the circle according to their instructions. From the end of the twelve miles distance they ran " eastward circularly, * * * and at the end of forty-tlircc chords, came to ye Delaware River," &c. They returned a map of their woric, dated 10th monlh 1th, "aitstiitnMstk. --»» Maswwa"*!*?**!- r..»^: WHW" t) ^ c^ f \ APPENDIX. 221 1701, a copy of wlilch is licrcunto anncxccl, showing the field work as by them performed. A comparison of Holmes' map of 16S1 with the runiiiug of the circle by the commissioners in 1701, shows that the boundary on the south of the King's patent to Penn could not have been a random line, but was fixed with regard to the claims of settlers that had originated under the Dutch or Swedes, in the Colony of the city about New Castle. First Running of the Circle, 1701. " By virtue of a warrant from "William Penn Proprietary and Governor of the Province of Pennsylvania and Counties annexed Bearing date the 28th day of ye 8th month 1701, Authorising us to accompany the magistrates of ye county of New Castle and County of Chester or any three of them within the space of forty days after ye said date to admeasure and survey from the town of New Castle the distance of twelve miles on a right line up ye said River and from ye said distance to divide between the two s* Counties by a Circular line extending according to ye Kings letters patents and deeds of feoffment from the Duke and ye said Circular line to be well marked two thirds part of ye semicircle. These are to Certify that on ye twenty fifth day of ye ninth month 1701 we met at New Castle with Cornelius Empson Richard Hallowell and John Richardson Justices of ye County of New Castle and Caleb Puscy Philip Roman and Robert Pile Justices of ye County of Chester who did unanimously conclude that the Beginning should be at the end of the Horse Dyke next ye said Town of New Castle and from thence to measure Due North the distance of twelve miles and at the extent thereof to run the said circular line first Eastward down to the River and then to return to yc said extent of twelve miles North and to run the said circle Westward uutill it should complete the two thii-ds part of ye said semicircle, and accordingly the twenty sixth day of ye said month we did begin in ye presence of yo said Justices at ye said end of ye Horse Dyke and measured Due North t\\elvo miles to a "White oak marked with twelve notches standing on 222 ArrEXDix. ye West side of Brandywine Creek in the land of Israel Helm and from the said "White oak we ran Eastward circularly, chang- ing our course from ye East Southward one degree at ye end of every sixty seven perches which is the chord of one degree to a twelve mile radius, and at ye end of forty three chords we came., to ye Delaware river on ye upper side of Nathaniel Lampleys old house at Chichester and then we returned to the White oak in Israel Helms land and from thence we ran Westward, chang- ing our course one degree from the West Southward at ye end of every sixty seven perches as before untill we had extended sev- enty seven chords (which being added to ye forty three chords make two thirds parts of ye semicircle to a twelve mile Radius) all which said circular liue being well marked with three notches on each side the Trees to a marked Hickory standing near ye Western branch of Christiana Creek. Surveyed the 4 day of the 10th mouth 1701. By us. Isaac Taylok. & Tho. Piekson." " These may Certify that Isaac Taylor and Thomas Pierson did accompany us at ye Town of New Castle ye 25th day of ye 9 th month 1701, together with Kichard HoUowell being all Justices of ye peace where we did unanimously agree and conclude that in order to admeasure and survey the twelve miles Y\ 1 11 '{ X*. V. ^\LY. Y. ^o: S^Bee~**:- !i''^H^-*9K'»'-»-: ■*-^SB«wwi»***t'fe>se^^ "^ ■~— ~-~4..^;i'/)/; / // i : ^i?^ :^..~Uh<^ fir-~«'Xl.injnJ fftn7 In o^noH 1)10 orlT .a '} o ') i f; o ^< ,8oIiK oo'iiIT \\ l£ APPENDIX. 22c III. TIiiis far in the history of the tNvelve miles circle it will be seen that the adjustment of it was by direction of tlie jierson wlio claimed the unappropriated land on cither side of the same, and who preserved it for local reasons. Although John Fenwick liad conveyed to William Pcun (jNIarch 23d, 1682,) all his right and estate in the moiety of New Liber e f, i<. Jersey many years befoi'e the first running of the circle, yet nothing appears in Penn's instructions to the Commissioners (1701), in the report of said Commissioners, or in any subse- quent history of the controversy between Penns and Baltimore (1732-1760), to prove that the circle mentioned in the Duke's deed of feoffment passed beyond the edge of the Delaware river on the western side. Extracts from the minutes of the Upland Court, extending from 1676 to 1681 (and to the time of the execution of the deed from the Dulcc of York to William Penn) are here attached. The words, " in Delaware river," as frequently written in said minutes, cannot be construed to mean any other than the terri- tory, the colony, the plantations or scttlc)ncnt>^, and not the stream. The Words "In Delaware RivePv" — 1676. The first Entry in the Eccords of the Upland Court (page 35, Penns. Ilis. Soc. Publications) is in these words : " At a Court held at Uppland in Delowar River by the authourity of our Sovereign Lord Charles the Second, by the Grace of God " etc. Page 37, " By Virtue of Authority &c I do &c appoint Peter Cock, Peter Kandjo etc to be Justices of the Peace in the Juris- diction of Delawar river and dependencies " ttc. Page 38, " By Virtue &c I do appoint Eplu-aim Herman to be Clerk of the Court at Vjikmd in the Fiver " ttc. 224 APPENDIX. Page 39, " That the books of Laws &c used In New York &c be likewise in force and practice in this liircr" &c. Page 40, " That tlicre be three Courts held in the several parts of the Ricer and Bay as formerly " &c. Page 41, "That there be a High Sheriif for the Towne of New Castle, River and Bay " &c. Page 45, " Since it hath pleased &c to Commissionate &.c us Justices at Upland in Delaware River &c we do " &c. Page 46, "At a Court held at Upland in Delaware River" &c March 13th, 167G. Page 50, "At a Court held at Upland in Delavar River" &c June 13th, 1677. Page 59, " At a Court held at Upland in Dclowar River " &c Sept. 11th, 1677. Page 67, " At a Court iickl at Upland in Delawar River " &c Nov. 13th, 1677. Page 74, Petition of Laurus Cock and others, " being brought in this river and parts" — "as well as for the strength of the River and parts" to settle some land below the falls. Page 76, " For the Justices ttc of the Court of Upland in Delowar River." Page 81, the Governor requests all persons that have located or claim " any land in Delawar River and Bay " to make return &c Aug. 13th, 1677, etc. Page 83, "At a Court held at Upland in Delowar River" etc March 12th, 1678. Page 103, " Carell Junsen of Marreties Hook in Deloivar River this day ajijJeared in Court " &c. APPENDIX. 22i Page 103, "Jan Heudrickson of Deloivar Ehrr liusbaiulman " &c. Page 105, "At a Court held at Upland ('/( Ddowar lilver" &e Nov. 12tli, 1678. Page 109, "Know all men &c that I Ohristoplier Barnes of Deloivar river " &c. Page 116, " To all certain people &c Laurance Cock of Shach- auiexiug in Ddowar ricer husbandman" etc Nov. 12th, 1678. Page 119, the limits and Division between Upland and New Castle Counties fixed Nov. 12th, 1678. Page 138, " At a Court held at Upland in Ddowar " Nov. 25th, 1679. Page 154, " At a Court held at Upland in Ddowar river " &c March 10th, 1679. Page 165, Mr Otto Ernest Cock and others appointed Justices of the Peace of Upland Court or County " in Ddowar river or dependencies " &c May 28th, 1680. Page 167, "At a Court held at Upland " in Ddowar Elver" &c June 8th, 1680. Page 171, Court removed to " Ye Towne of Kingsesse in ye Schuylkills " June 8th, 1680. Page 175, "At a Court held at Kingsesse for Upland County in Delawar River" Oct. 13th, 1680. Page 186, "At a Court held in the Towne of Kingsesse in Upland County in Ddowar River" March 8th, 1681. Page 189, "At a Court held at Kingsesse for Upland County in Delaware River" &c June 14th, 1681. Page 195, Grant to William Pcnu 1681. 2f 226 APPENDIX. The ^vo^ds iu the Grant of the Duke of York to William Peim, August 24th, 1682, for the twelve miles circle about New Castle, " lying on the Delaware river, and all the Islands in said River, and the said lilver and soi/l thereof" were used in the same sense, and intended to express the same meaning as the words "in Delaicare river," written in tlie minutes of Upland Court. The words, " and said Hivcr and soi/Ic thereof," as used in the said deed, have reference to the laud and territory adjoining ' Delaware River, and not the soil beneath the water. It is a mode of expression peculiar to the times in which it was written, and which peculiarity may be readily traced through the public legal proceedings of the Courts of the County or territory where the identical land intended to be assigned is situate. It is a fair and legitimate construction of the whole sentence, and deprives the words used of any doubtful or uncertain meaning. To the proposition by the Attorney General of England to fix the southern boundary at twenty or thirty miles northM-ard from Xew Castle, Penn objected, and said " he should have so little of ye river left as very much to prevent y" hope he hath of improving y" rest within his patent ; " evidently not meaning the stream. IV. The first attempt at settlement of the difficulty between Lord Baltimore and William Penn, in regard to the boundaries of their several grants, appears in the agreement signed ISIay 10th, 1732. William Penn was then dead, and his three sons, John, Thomas, and Richard, joined with Charles Lord Baltimore, (great grandson of the original grantee), who was also deceased. A synopsis of said agreement is hereunto attached, in which a full history of the controvei'sy is set out. APrENDix. 227 The most importaut paper, liowevei", is the map annexed, and which is said to have beeu prepared by the first Lord Baltimore himself, remarkably accurate, and giving a fair illustration of the points in question. This map is mentioned as the basis upon which the lines should be run and the controversy settled. Pexxs and Baltimore — The First Agreement, Dated May IOtii, 1732. "Articles of Agreement made May lOtli 1732 betweeu Charles Lord Baltimore * * * ^f ^|^q ^^g p^^^.j. ^^^^ John Penn Thomas Peun and Richard Penn * * * of the second part * * * Whereas Charles 1st King &c by Letters patent * * * dated Jime 20th in the Eighth year of his reign A d 1632 Did Grant &c to Cecilius, then Baron of Baltimore * * * (Great Grandfather of the said Charles Lord Baltimore) all that part of a Peninsula * * * betweeu the Ocean on the East and the bay of Chesepeake on the West and divided from the other part thereof by a right lino drawn from the cape of land called Watkin's point, in said Bay near the River Wighco on the "West unto the main ocean on the East, and between that bound on the South unto that part of Delaware Bay on the North, which lyetli under the fortieth degree of North latitude * * * ^j-^j passing from the afore- said Delaware Bay in a right line by the degree aforesaid * * * and all the Islands * * * in the ocean, ten leagues from the Eastern shore * * * with the jurisdictions Royalties * * * ., * * * And Whereas King Charles Second by Let- ters patent &c dated INLxrch 4th in the 33d year of his reign A D 1680, Did Grant * * * ^^to William Peun all that tract of land iu America * * * bounded on the East by Delaware River, from twelve miles distance Northward of New Castle Town unto the forty third degree of North latitude if said river extended so far north * * * and from said 43d degree Westward five degrees of Longitude * * * to be bounded ou the Nortli by the beginning 228 APPENDIX. of the 43cl degree * * * ^ncl on the South by a Circle drawn at twelve miles distant from New Castle * * * with all the Eoyalties * * * And Whereas By deed dated August 24th 1682 James, Duke of York Granted &c to "NYilliam Penn * * * j^j^(j did sell enfeoff * * * to the said William Penn * * * All that the town of New Castle * * * and all that tract of land lying within the Compass or Circle of twelve miles about the same, lying on the Delaware Eiver and all the Islands in said river, and the said Biver and soi/le thereof lying north of the southermost part of the said Circle of twelve miles about said toivn, with all the Eoyalties * * * And Whereas By another deed of bargain and sale and feoff- ment dated August 24th 1682 Charles 2nd Granted to William Penn * * * j^n ^i^^i tract of land upon Dela- ware Eiver and Bay Beginning twelve miles south of New Castle and Extending Soutli to the Whore Kills, (ftherwise called Capin Lopen which tract of Laud has been divided into two Counties and called Kent and Sussex, and with New Castle called the " Three Lower Counties " * * * And Whereas Soon after the Grants unto William Penn, disputes arose between Lord Baltimore and the said William Penn touching the bounds of Maryland and Pennsylvania and Maryland and the Three lower Counties * * * by reason of the doubts of mathematicians as to the place of the fortieth degrees of North latitude (referred to by both Charters of Pennsylvania and Maryland) and also the three Lower Counties &c and some parts thereof comprised within the bounds of Maryland * * * Now these present articles witness that it is hereby covenanted 1st That the Draught or plan printed in the margin upon this skin of parchment, which contains a map of the Peninsula hereinbefore mentioned, and also of the tracts of ground wherein the said Province of JMaryland (or part thereof) the said Lower Counties, part of said Province of Pennsylvania and part of Yiro-inia do lie is a true Copy of tliose sent over from America * * * for the assistance * * * Qf gjjjj parties in the settling of said disputes and by which this present agreement is to be explained and understood * * * 2d. That there shall be a circle mentioned in the said charter for Pennsylvania and Deed of sale or feoffment of New Castle APPENDIX. 229 (or so much thereof as is requisite) drawn and marked out at the twelve miles distance from the Town of Xew Castle, to be twelve statute miles. * * * 3d. That a due East and "West lino shall be drawn across the peninsula, such line to begin on the East part at Cape Henlopeu on said map, South of Cape Cornelius &c. toward the main ocean and to run towards the "NYest side which lies on Chesa- peake bay. * * * 4th. That from half way on said line across the Peninsula a line shall run Northward up said Peninsula till it touch the Westerly part of the periphery of said circle to make a tangent thereto. The said line will run nearly North and South, but however it may bear it shall run to touch the said circle etc and there shall end. * * * 5th. That said line shall continue to the latitude fifteen miles below the city of Philadelphia. * * * 6th. That a line shall run from said Xorth point (15 miles South of- Philadelphia,) Due "West, across the river Susquehanna. :tc ^ ^ 7th. That the parts of a circle at present drawn with Red ink on said Map, are drawn as an explanation to this agreement, but not with exact certainty in regard. to the plans sent over. * * 8th. That the said lines when run shall be conclusive against all parties and shall be the bounds of said Provinces of Pennsyl- vania Maryland and the Three lower Counties. * * * Provided alwai/s * * * ^[^^^ ^jjg risers crossing said lines * * * shall not be held in common for commerce. * * * 9th. That the parties hereto will select within two calendar months from the date hereof, sufficient persons, not more than seven on each side, to run and mark said line and said part of a circle. The Commissioners to give due notice of their meetings * * * which woi'k shall begin befoi-e the month of October next and be proceeded with despatch. * h< * Stones to be put in and other marks of said line made * * * and the stones marked with the arms of cither party * * * the work to be finished on or before the 25th of December 1733. * * * _^ ^]^^^ ^Q j^g j^iade of the lines * * * under the hands and seals of the Commissioners on both sides and by the parties and Recorded in the several offices of the Provinces * * * ^^^^ ^]^^^^ 230 APPENDIX. said lines and monuments shall be examined every three, years. Provided always, if said Commissioners neglect to meet and run said Hues within the time fixed &c then this agreement to be \'oid and the defaulting party to pay the other £5,000. 10th. When the said lines are run and settled then each party to release and quit claim to the other the lands within said boun- daries. * * * 11th. The lands sold and conveyed by either party to be held as good to the purchasers thereof but subject to the laws of such province in which they may fall. * * * J^^^^ pgj._ sons who have taken double titles shall not have the same advan- tage, but treated considerately. 12th. That any change in this agreement shall be made part thereof. * * * Lastly. All parties to use the best means to reconcile the diffi- culties and support this agreement. * * * BALTIMORE. JOHN PENN. THOMAS PENN. AVitnesses RICHARD PENN." Abraham Taylor. John Georges. John Sharp. Fred. John Paris. Mathew Biddle. " The Commission of John Penn Thomas Penu and Richard Penn to Patrick Gordon, Deputy Governor &c of Pennsylvania, Isaac Norris, Samuel Preston, James Logan, Andrew Hamilton, James Steel, and Robert Charles * * * to act in theii' behalf in the difficulties aforesaid and under said agree- ment * * and any six, five, four, or three of them. * And in case of the death sickness or absence of either of them, then Patrick Gordon, as Deputy Governor, * * * to fill such vacancy. * * * "Witness &e May 12th 1732. JOHN PENN. THOMAS PENN. Witnesses RICHARD PENN." AsRAHAii Taylor. John Georges. John Shewbaet. -^imsmmiiffst.&'fm^&x^s^xsmtiSiy*^^^ II Tf JiiftMfililtifii^ I W I — I •• '■'■■'■iii?Jff V ^JlK 9r(i /, ! Z /-. il'JJJU- ''^ -Vl. )■'! ^ BuflijflioO aqfiO OoqolaiH oqaO' /.:;# I n ''i!- ^ P E N S I M A i R Y PART VIRGINIA 'unds of Mar;land vnamm n; 7'^ I ?. VT H H %. x^^\ / /. J Y 9\ I 1/ KA w i I '/ /' ^^ ^•^ ^.'' T a A 1 'd A 1 K I JL> a [ y APPENDIX, 231 For various reasons, no settlement was liad under the first agreement, and proceedings in Cliaucery were commenced and can'ied to a decree by Lord Hardwicke. In 17G0, a second agreement was entered into, all the original parties being dead. The map attached to the first articles was agreed upon and adopted as the basis of operations for the Commissioners. A synopsis of the second agreement is hereunto attached, but the map was not copied, it being a duplicate of that of the first articles of agreement. Penxs and Baltimore— The Second Ageeejient, Dated July 4th, 17G0. " Indenture of Agreement Fourth day of July 1760 Between The Lord Baltimore and Thomas and Richard Penn. Enrolled in His Majesty's High Court of Chancery, another part of this Indenture the fourth day of July in the year of our Lord 17G0 * * * This Indenture made the fourth day of July in the thirty fourth year of our Sovereign Lord George the Second * * * one thousand seven hundred and sixty * * Between the right Honorable Frederick Lord Baron of Balti- more in the Kingdom of Ireland only son and heir at law, Devisee and residuary legatee of the right honorable Charles late Lord Baltimore deceased and as such, or under some one of the settlements hereinafter mentioned, true and absolute Lord and Propriatory of the Province of Maryland in America, of the one part, And Thomas Penn and Richard Penn Esquires, sons and Devisees under the Will of William Penn Esquire, their late father deceased and true and Absolute Propriatareys of the Province of Pennsylvania and the three lower Counties of Xew Castle, Kent and Sussex on Delaware in America, of the other part. 232 APPENDIX. Whereas The said Frederick Lord Baltimore under and by virtue of a certain cliarter or letters patent bearing date on or about the twentieth day of June which * * * (in the 8th year of Charles the first * * * ^ ^^^j niade and granted unto Cecilius then Baron of Baltimore since dec, the Great, Great Grandfather of the said Frederick * * * stands seized and is well entitled unto the said Province of Maryland as in said Charter mentioned. And Whereas The said Thomas and Richard Penn by virtue of a certain other charter &c dated March 4tli in the 33d year of Charles Second &c, made and Granted unto William Penn since dec* late father &c stood seized and was well entitled unto the said Province of Pennsylvania * * * And Whei-eas By virtue of three other Charters etc the first dated March 12th in the Sixteenth year of Charles Second ' * * * The second dated June 29th in the twenty sixth year of Charles Second * * * 'JIkj third dated March 22d in the thirty fifth year of Charles Second :k * * made and granted to the Duke of York, afterwards King of England, but since deceased. And also by Virtue of two Indentures of Feoffment with livery * * * cacji dated August 21th 1682, and made and granted by the Duke of York to William Penn dec, and by Virtue of other Conveyances * * * stands seized of the said three lower Counties of New Castle, Kent and Sussex on Delaware, in America, as in said deeds of Feoffment described * * =i= And Whereas The said three lower Counties were heretofore Called by the name of Delaware or the Province of Delaware, And some part of the said Province of Maryland and also part of the said tlu-ee Lower Counties "do lie within a Certain Penin- sula in America .hereaftffl: mentioned. And the said Provinces of Maryland and Pennsylvania and the said Territory now called the Three lower Counties of * * * lyiug adjacerit and Contiguous (at least in some parts of the same) each unto the other. Very long litigations and Contests have subsisted from the year 1683 down to the present time, and many orders have been pronounced in Council relative thereto. And Whereas In order to put an end to Litigations and Con- tests Certain Indented Articles of Agreement dated May lOtli A T> 1732 were entered into under hands and seals and by and APPENDIX. 23[ between the said Charles Lord Balliniore ou tlae one part (father of said Frederick * * * j j^j^j John Penn Es- quire the late Elder brother of Thomas and Richard Penu, and since deceased, without issue and the said Thomas and Richard Penu on the other part, upon the side of which said Articles of Agreement, the like Draft, Plan, Diagram or Figure was printed or impressed as is printed or impressed upon one of the skins of Parchment whereou this present Indenture is engrossed. And by which said Articles of Agreement * * * j(- ^.jjg agreed in the words following * * * That it is hereby Covenanted and agreed &c !)y each of the parties to these presents * * * First. That the Draft or plan printed upon the margin of this skin of Parchment which contains a majJ of the Peninsula hei'c- inbefore mentioned. Also the land wherein the Province of Ma- ryland (or part thereof) the said Three Lower Counties, Part of said Province of Pennsylvania and part of Virginia do lye, is a true Copy of those sent over from America to the present parties hereto by their Agents in those parts &c for the guidance &c of the said parties in settleing the said disputes, and by which this agreement is to be explained and understood * * * Second. That there shall be the said circle mentioned in said charter for Pennsylvania and deed of Feoffment of New Castle (or so much thereof as is requisite) drawn and marked out at the twelve miles distance from the town of New Castle, which twelve miles shall be twelve English statute miles. * * * Third. That a Due East and "West line shall be drawn across the Peninsula * * * jq begin on the East part at a place in said map called Cape B[enloj)en (which lies south of Cape Cornelius) and to run towards the "Western side of said Peninsula ou Chesapeake bay' * '■' * but to stop in the e.raci micWfc of said Peninsula. • * * * Fourth. That from said middle of said East and "West line a line shall run Northward up the said Peninsula, until it shall touch the "Western part of the periphery of the said circle to make a tangent thereto, (which said line as at present appre- hended will run pretty near North and South * * * to begin as aforesaid and run to touch said circle, and there to end. Fifth. That at the North end of said line a line shall begin, and run due North above the said Peninsula, but so f;ir only untill 2g 234 APPENDIX. it comes into tlie same latitude as fifteen Euglish statute miles South of the Southern part of Philadelphia. * * * Sixth. That a due East and West line shall begin at the North end of said line and run due AYest - * * * crossing the Susquehannah river * * * ^^j ^q be the line between INIaryland and Pennsylvania. * * * Seventh. That the part of the circle drawn with red ink upon said Draft and the Red lines drawn thereon, are to serve as an explanation to this agreement, but not with exact certainty, * * * in regard to the INIaps sent over. * h; * Eighth. That the first named East and "NYest line from Cape Henlopen, and the North and South line from the middle of the Peninsula to the circle * * * ^nd thfence con- / tinned * * * Northward, and the Due West line * * * crossing the Susquehanna river er Counties * * * unto Thomas and Richard Pcnn * * * as to be fixed by the Com- missioners. * ■■'■ * Thomas and Eichard Penn renounced and released all claim to the Province of Maryland unto Lord Baltimore * * * as to be fixed by the Commissioners. * * * Eleventh. The titles of Settlers to be made good by either party. * * * Twelfth. Relating to settlers. * * * Lastly. All parties to use their best endeavour to preserve peace and good neighbourhood. * * * And Whereas the said Boundaries were not run and settled as agreed upon :>.- * ^ j^jjj after the time limited had passed the said Charles Lord Baltimore on the 8th day of Au- gust A D 1 734, Petitioned in his own name the King and Coun- cil to furtlicr confirm his charter, to so much of said Peninsula as was confirmed therein. * * * This was opposed by a Counter petition from John, Thomas and Richard Penn dated December 19th 1734 * * * The petition of Lord Baltimore was reported upon but ad- journed by the King's order dated May IGtli 1735 to the end of Michaelmass term, that John, Thomas and Richard Penn might have opportunity to proceed in a Court of Equity * * * to obtain relief &c upon tlie said articles of agreement insisted on by them, and after the Expiration of said time either party to have liberty to apply to the .Committee of Council for Plan- tation afjfairs * * * Therefore John, Thomas and Richard Penn June 21st 1735 Exhibited their original bill in the Court of Chancery * * * against the said Lord Baltimore, as defendant. Said Bills were amended at various times. John Penn deceased and his Executors made parties * * * Jq g^jj j3;]j j-j^g plaintiffs prayed they might be quieted in their possession of tlie three lower Counties. That Baltimore be restrained from prose- cuting his Claim. That the Articles of Agreement dated May 236 APPENDIX. 10th A D 1732 may be decreed to Exist &c and be in force * * * and be carried out * * * That all doubts set up by Baltimore be removed and ex- plained * * * so that the parties might make proper exchanges of title as agreed upon * * * That Baltimore might bo decreed to pay all the Costs incurred under the Agreement of May 10th 1732 * * * Lord Baltimore put in his answer, Claiming fraud and impo- sition in obtaining said agreement * * * ^]■^r^l g^ij agreement was void * * * j\^^i yo relief be granted * * * And the cause was heard before the Lord High Chancellor * * * in presence of the parties, their Council Witnesses * * * May 3-4-7-8-9 11 and 15—1750. And on the loth of May 1750 the Chancellor made a decree * * * as follows. That the Articles of Agreement of May 10th 1732 arc valid and obligator}/ * * * That said Agreement should be executed &c nobcithstanding the Umilcd time therein named had elapsed * * * That the said Articles do not bind or prejudice any preroga- tive, or right of the Crown in said Territories * * * nor of any purchaser or settler in said territories &c Therefore the Chancellor Decreed that the Articles of May 10th 1732 be carried into effect * * * And the parties were ordered, within three months to execute two Instruments appointing proper persons (not more than seven on each side) with full power to said seven persons (or any three of them) to run, mark and fix the part of a, circle and the several lines mentioned * * * To give due notice * * * To be began before some time in November next. That monuments be set up * * * on either side with the arms of the owners * * * "jhe whole to be done before the last day of April 1752. A Copy to be made, signed by the parties and Commissioners and Recorded iu all the proper offices * * * jjj. Spicer a Master in said Court to settle all disputes * The Court also decreed that the Centre of the Circle be as uear the middle of the Town of New Castle as possible, and tliat the said Circle ought to be of a Radius or semi-diameter of twelve APPENDIX. 237 miles * * * That the Capo be taken where it is laid do^vn in the map annexed to said articles * * * That the respective parties release and convey each to tlie other, such land as may be settled by the lines to be in each other's Grant or Charter * * * -jjjg decree not to preju- dice the rights of the Crown * * * in said lands. The rights of the tenants and owners not to be prejudiced * * * Costs to be taxed by the Master * * * and defendant to pay Costs * * * Lord Baltimore submitted to said deci'cc and the parties selected the Commissioners * * * rpjjg Commis- sioners proceeded but other objections Avere raised, on behalf of Lord Baltimore * * * Thomas and Richard Peun again petitioned the Chancellor March IGth 1750, that the twelve miles Circle should be accor- ding to horizontal and not superficial measure, and that the fifteen miles South of Philadelphia be in like measure, &c. The petition was heard March 27-29 1751, and the Chan- cellor decreed March 29tli 1751, That the part of a Circle mentioned in said decree to be drawn around New Castle be at twelve miles distant from the Centre according to horizontal and not superficial measure, and that fifteen miles South from Philadelphia be in the same manner * ^ * Ordered that the Commissioners be governed accordingly. Charles Lord Baltimore died in England April 23d 1751, leaving the said Frederick his son and heir, an Infant, his Will dated November 17th 1750, and devised the residue of his estate to the said Frederick * * * The Commissioners proceeded and on the 26th day of April 1751, signed an agreement as follows. lirst. That a due West line be run and marked (to begin at a point 139 perches due East from a Stone &c on the Northerly part of Fenwick Island) across the Peninsula to Chesapeake ]3ay * * * Second. That this point be taken as the Cape Henlopen * * * that at the distance of half way across the peninsula, a line be started, and drawn to the Periphery of a Circle twelve miles distant from New Castle, subject to the Con- firmation or rejection of the Chancellor in England ' * * 238 APPENDIX. Tlie Commissioners Rau -the West line from Cape Henlopen to Slaughter Creek, 66 miles and 248J perches where Lord Bal- timore claimed it should stop, M'hen the distance should be 69 miles and 298 perches, &e This line ran through Taylor's and James' Islands * * * Lord Baltimore deceased before the work was finished, but the Commissioners did not hear of his death until after the work was done * * * The half distance across the Peninsula was 34 miles and 309 perches * * * November 8th 1754 the Plaintiffs again applied to the Chan- cellor and asked a decree that Slaughter Creek was not half the distance across the Peninsula * * * November 21st 1754 the order was revived and Lord Baltimore answered, March 22d 1755, and insisted on certain settlements said to be made of the Province of Maryland by Pclcase dated December 31st 1698, and by others dated July 11th 1730, and that his rights ought not to be affected by the Articles of Agreement as executed by his father. Said plea was argued May 7th 1755, and the family settle- ments handed over to the Plaintiffs for examination * * One deed of Settlement dated December 31st 1698 and another dated July 11th 1730, and an agreement dated March 9th 1753. The Plaintiffs (the Penns) obtained an order dated May 16th 1755, to amend their bill &c, and September 6th 1755 filed a new Bill * * * amended * * * and put in issue the several deeds of settlement aforesaid * * * and insisted the Defendants were bound to carry out the Agreement of ]\Iay 10th 1732 and the decree of May 15th 1750, and the order of March 29th 1751, * * * and also insisted on the validity of the said Commissioners' last proceedings, and that the former suit, enrolled decree and order and all other proceedings therein which abated by the death of Charles late Lord Baltimore might stand and be revived in full force against &c the said defendants, or as many of them as have any estate in Maryland * * * ^^^j j£ g^^jj order be made then the Plaintiffs to have a decree for discovery * * * of the real and personal assetts of the said Charles Lord Baltimore, and that the same might be secured for the Plaintiffs to pay Costs * * * ^^^j ^^ ^^j fQp APPENDIX. 239 Damages already incurred and vliat may occur by the breach of the said Agreement aud its uon performance, dated IMay 10th 1732. That the said Enrolled Decree and subsequent order might be decreed to be performed * * * and that the Plain- tiffs might have decree aud perpetual injunction to hold aud enjoy tliem in said territories so released by the said Charles Lord Baltimore &c by the agreement of May 1732 as against the defendants * * * jjyj ^^Q Costs of this suit * * * That the doubt touching the extent Westward to run across the Peninsula might be cleared and settled by the Court, and general relief * * * And Whereas The parties to these presents have come to an agreement in the manner hereinafter mentioned, Kow this Indenture Wiinesseth That for the putting afncd and perpetual end forever to all disputes * * * relating to the extent, bounds * * * q£ ^Jj^ gj^jj Pi-oyjuce of Slarylaud, Province of Pennsylvania and the three lower Counties * * * on Delaware in America * * * The said Frederick Lord Baltimore * * » p^th Covenant Promise * * * to and with the said Thomas Penn and Pichard Penn * * * that the Commissioners last respectively appointed * * * did justly agree upon fix and determine the true spot &c for Beginning from where to measure the West line across the Pen- insula which was directed by said agreement and enrolled de- cree. That the said spot or point of the Beginning of said West line shall forever hereafter be taken as the said point, viz on the verge of the main ocean 139 perches East of a Stone on the Northern part of FeuAviek's Island &c said stone marked with the arms of the parties * * *, And said jDoint to be Cape Henlopen * * * named in the Agreement of May 10th 1732. That the said Commissioners fixed the true meridian &c aud justly measured the West line &c across the ichole Peninsula to Chesepeake Bay * * * That said line measured G9 miles and 298 perches, and that said distance is the true one * * * That the middle point is 34 miles and 309 perches from the 240 APPENDIX. Beginning * * * where a large stone, marked * * * shall be placed, marked with the Arms * * * That the said Frederick, Lord Baltimore will, within thirty days from this date, appoint seven Commissioners on his part, to rim and mark said lines * * * agreeable to the intent of the former Agreement, Decree and order, and of these Presents. That this settlement shall conclude them the Defendants and all persons Claiming under them * * * touching Pennsylvania and the three lower Counties * * * with all their rights Royalties * * * The said Province and Counties to bound and be bounded according to the agreement of May 10th 1732 and Decreed by the Court of Chancery =(= * * May 29th 1751 * * * r That the said Frederick Lord Baltimore &o will hereafter do all other things necessaiy to carry out this agreement * * * That the said Frederick Lord Baltimore will M'ithin three days after the Execution of these presents, acknowledge his execution thereof before a Master in Chancery * * * That Avithin thirty days after the said Thomas and Richard Penn shall file a Bill in Chancery the said Lord Baltimore will file an answer thereto * * * and in said answer shall admit as are herein by him admitted and that he and all persons claiming under him shall be bound to obey * * * the former agreement, the enrolled Decree and subsequent order of the Court of Ciiancery * * * ^^j J^lgQ tjje proceedings of said Commissioners, about the Beginning of the said West line and the Meridian line, and the Running of the said line, and the length of the same * * * That said Bill and answer shall be settled by the Council on both sides * * * That the Defendants shall not pray any Costs * * * ^^^(J i]^^^^ ^11 proceedings shall be dismissed * * * That the defendant shall consent to the setting down of said Cause to be heard before the Chancellor upon the Bill and answer. That the Defendant shall appear without service of subpoena * * * and that he the Lord Baltimore will consent to a decree being pronounced against him agreeable to the intent APPENDIX. . 241 of these presents * * * ^^^^ i]^^^ eitlier party may ^PP^y *^o ^^^ Court for direction * * * That the Defendant sliall not oppose said Decrees being made * * * and if the Plaintiffs conclude, before or after said Cause be heard, to lay this present Indenture before the King and j^ray the ratification of the said former articles * * * the Enrolled decree and the subsequent order * * * to be forever established between the Pro- priatarys of said Provinces and Counties &c for the peace * * * the said Defendants shall join in said petition or give his consent thereto &c in writing * * * And Whereas The said Plaintiffs * * * j^^.^ now in actual possession of the said lands * * * herein named * t. '.-■ Noiv ihis Indenture Wifnesuclh That for the ends Are and to render these presents more valid and for five shillings jwid * * * the said Defendant Hatli * * * Re- leased, Quit-Claimed * * * unto the said Plain- tiffs * * * all the said Province of Pennsylvania in America with the Eoyalties * * * j^m^j ^-^^^ ^^^^ Three lower Counties * * * upon Delaware in America * * '■' The same to be bounded according to the Agreement of Ma^^ 10th 1732, the Enrolled Decree and the subsequent order &c of March 29th 1751 and according to the intent and meaning of these presents * * * That any land sold and conveyed by Lord Baltimore &c within the Province of Pennsylvania or the Three lower coun- ties, the title to be held good. * ■•'■ * Also of the land sold by "William Penu * * * . in Maryland. * * * And this Indenture also Witnesseth &c. that for the purpose of ending all disputes * * * ^jjg ^^^^ Plaintiffs * * * Do Covenant with Frederick Lord Baltimore * * * that the Commissioners &c Did fix upon the true point to Begin the said "West line, which was agreed in the Articles * * * and also decreed * * * viz at a stone * * * (described herein before,) Avhich shall be conclusive '■•'■ * * and which shall be taken as Cape Henlopen. 2 i: 242 AITEXDIX. That the said Commissioners did justly fix the meredian line * * * did measure the West line properly * * * and fix the length * * * ^]^r^^^ ^]^^ middle of said line was 3-4 miles and 309 perches from the Be- ginning. * * * That. a stone be placed at the said middle of the "West line. * That the said Plaintiffs ^yill within thirty days from the date of these presents appoint seven persons as Commissioners * * * and not, less than three of them to run and mark all such jjcirts of said circle and boiindarys as are not yet completed * * * according to the intent and meaning of the former articles, decree and subsequent order '•' * * and the agreements in these presents contained. * * That said Commissioners shall proceed at ouce &c and that no further suits or litigations shall be prosecuted by these jjlaintifls or those claiming under them against the Right of the Defend- ant * * * according to the agreement of May 10th 1732 and by the enrolled decree and subsequent order dated !May 29th 1751, and according to these presents. * * And the said Plaintiffs will do all other things necessary to carry out the said settlement. * * * And that three days after the said Frederick Lord Baltimore shall acknowledge the execution of these presents (as before agreed upon) the said I'laintiffs will cause these presents to be enrolled in the Court of Chancery. * * * And that within thirty days after the said Plaintiffs shall ob- tain a copy of the answer filed by the said Defendant, make proper application to the court to have the said cause set down for a hearing * * * at an early day * * and will give notice of such application * * * to said Defendant * * * ^,;t|j pi-iyilege to amend That the said plaintiffs will not oppose the decree of the court. And if the said defendant desires (before or after the hearing of said cause) to lay this present Indenture and the matters here- tofore mentioned before the King * * * |q pj.jjy the confirmation of the former articles of agreement, the enrolled decree or the subsequent order of the Court of Chancery * * * that the said Plaintiffs will join in such Petition &c or give their consent * * * to the same. And that the said Plaintiffs will execute proper Eeleasos APl^EXDIX. 2-i3 * * * to said Defendants for costs of the previous suits * * * r^^^\ damages * * * by virtue of the agreement of May 10th 1732 * * * Decree and Order. * * * And now this Indenture moreover 'Witncsseth that for the ends » * * ^ml ^Q render these presents more valid * * '' and for 5 shillings * * * by the said Lord Baltimore to the said Thomas and Eichard Penn paid * * * Doth fully &c Release the said Province of Alaryland * * * to the said Lord Baltimore * * * to be bounded by the agreement of May 10th 1732 and the enrolled Decree and subsequent order of March 29th 1751 &c and the intent of these presents. * That no occupant of land &c be disturbed * * * but hold quiet possession. * * * In Witness Whereof. * * * F. [l.s.] Baltimore. Tiios. Penx. [l.s.] Eicii'd [l.s.] Pexx. V. In the questions submitted to witncsscss in view of the suit in chanceiy between Lord Baltimore and the Penus, the meaning of the words " in Delaware Eiver," and " the said river and the soyle thereof," as written in the deed from the Duke of York to William Penn, appear to have been inquired into. These witnesses were old residents along and on both sides of the river Delaware, and familiar v/ith the Dutch and Swedish history of the settlements thereabouts. AVilliam Peterson, aged ninety-two years. Never heard it called by any other name than " the bay or river." John Eambo, aged seventy-nine years. "Heard the said countries vi^ere first called ' New Swedeland ' by the Swedes, and afterwards by the Dutch called South River, and sometimes ' Delaware Eiver.' " James Logan, aged sixty-six years, says — " The Dutch called the bay and river 'South River'" — the grant of the Duke to 244 ArPENDix. Penn of countries all on the west side of Delaware, formerly called by the Dutch Soutli River, but now by the English called Delaware River. Thomas Noxon, aged forty years, says — " That lie has for- merly heard the said countries, by some ancient Dutch people residing in the Province of New York, called by the name of South River; that from the conquest by the English — 1664 to 1680 — the said lower counties were sometimes called South River, afterwards Delaware, Delaware River, Delaware River and Bay." The extracts from said depositions, as made, arc hereunto annexed. EXTKACTS TAKEN FEOM THE PHILADELPHIA DePOSITIOXS (1740) BETWEEN PeNN AXD BaLTIMOKE. . William Peterson, of Gloucester county, N. J., aged ninety- . two years. Knew the land between New Castle and "NVhorkill before William Penn come ; when he come here the land was in possession of the Dutch, and had heard the Swedes say the land was occupied by their nation formerly — before the Dutch ; knows the bay or river of Delaware, and never heard it called — from the mouth, between Cape May and the Whorekills, where it enters the sea, upwards — by any other name than tlie bay or river; come to this country about eighty-two years ago, and hired for twenty years next after on Christiana- Creek, three or four miles from the mouth, but has since lived in Gloucester county, N. J. ; never knew that the counties of New Castle, Kent, and Sussex liavc been under the government of Lord Baltimore. John Rambo, of Gloucester county, N. J., farmer, aged seven- ty-nine years. Is acquainted with New Castle ; has been at tlie place anciently called Whorekills; heard from his father and other old jjeople that the lower counties were settled originally by Dutch and Swedes ; the said deponent knows the said coun- tries liave since been under the government of the English ; has heard tlie said countries were first called "New Swedcland " l)v APPEKDIX. 245 the Swedes, aud afterwards by tlie Dutch called " South River," and sometimes were called or known by the name of " Delaware . Eiver ;" that the said Province of Pennsylvania has been called by that name ever since William Penn become the proprietor ; don't know by what name the three lower counties have been called since that time ; no part of said three lower counties was ever under the authority of Lord Baltimore. Elizabeth Jlorris, widow, aged sixty-five years, of Philadel- phia. That Sussex county extended south of Indian River; several persons she knew lived there — the Burtons, Stokelys, aud one Fenwick ; Fcnwick owned Fenwiek's Island — was under the government of Pennsylvania. Samuel Hollingsworth, aged sixty-seven years. First arrived at the town of New Castle in 1682 ; in 1701 removed to Chester county. One evening in 1683 one Col. George Talbot, of Jlaiyland, come to his father's house with others ; stayed all night ; said he was running the line to divide the Provinces of Maryland and Pennsylvania, by Lord Baltimore's order; that ho began the said line at the mouth of the Octarora, and from thence due east to Delaware ; returned and stayed the next night at his father's house ; Col. Talbot told his father he had finished the line ; saw the marked trees of the line ; could show the course ; undei'stood it ended a little below the mouth of Naaman's Creek ; it was sometimes called " Talbot's " line, but generally " Baltimore's line ;" has heard that soon after the running of said line, Lord Baltimore built a fort some miles southward of said line, to take possession, &c. ; it was a little log house, and scarcely deserved the name of " fort ;" that part of the line running through Xew Castle county wfts never regarded by the people as the boundary. John JMusgrave, aged seventy-three years. Come into this country in 1682 ; lived in New Castle county for four years, and then removed to Pennsylvania ; remember seeing William Penn at Robert "Wade's house in 1682, in the town called Chester, aud M'here said Penn generally lodged ; was servant of Valentine Hollingsworth ; Col. Talbot come there one night ; said he was riinuing tlie line between Maryland and Pcnnsvlvania ; saw a 2-46 ArrENDix. liue of marked trees in said line ; bas heard it ended at Delaware River, a little below Naaman's Creek. James Logan, aged sixty-six years. William Penn died in the year 1718 ; know a peninsula between West New Jersey and Chesapeake Bay, from my own observation, maps, geography, &c. ; believes Capt. John Smith's Histoiy of Virginia and New England from their beghming (1584) to this present (1624), with the maps, &c., in six books; was the first Englishman that printed any map, &c., of said peninsula and the adjacent lands, &c. [Book shown.] Believes the said book is well known among historians; that the Dutch called the bay and river " South River ;" the upper part of the three lower counties was called " Saudthook," and the lower " Whorekill ;" that the lands on both sides of the river and hay were called by the Dutch Neio Netherlands, and after it was captured by the English (1664) was called "Delaivare;" the upper part of New Netherlands was called the " County of New Castle ;" the town called New Castle was built by the Dutch, and afterwards the said peninsula was called the " Three Lower Counties ;" and after the arrival of William Penn, he having obtained from the Duke a grant of the said countries situate on all the western side of Delaivare, from the Province of Pennsylvania southward, changed the name of the county of Whorekill or Deal to that of Sussex, and changed the name of the county called St. James to "Kent," but the town and county of New Castle still retain their former appellation ; that one Legislature sat for both the • three lower counties and Pennsylvania from 1683 to 1704, and tlien had separate assem- blies. Never heard the thi-ee lower counties called by any other name, except some to the name of Delaware added the M'ord " settlement ; " held several offices under the Government ; that William Penn and those after him liave always had possession of said three lower counties ; that no person, to his knowledge, holds any laud in said three counties by grant from Lord Balti- more ; the most ancient grant is from Mynheer Stuyvesant, Governor of the Dutch, and after the year 16G4, the grants were made by Richard Nichols, &c., and from the year 1682, from William Penn; and after the year 1701, the Commissioners of Property (of which he was one) signed the deed &c. ; tiiat Wil- ArPESDix. « 247 Ham Penu appointed persons to collect the quit rente in the three lower counties ; that Queen Christiana, of Sweden, (between the years 1640 and 1G45), sent a large Colony into the same Bay and River, and made considerable settlements on both sides of the Eiver, on the west side at Christiana Creek, at or near Up- land, which name William Penn changed to Cliester ; that the Government of New York sent a fleet to conquer the Swedes ; they surrendered ; that the English captured from the Dutch said Bay and Eiver of Delaware, fonnerly called by the Dutch '• South Pivcr," but now by the English called Delaware River ; captured again by the Dutch, and again restored by Treaty to the English; that William Pcnn arrived here in 1682, and brought a vast Colony of thiriy-tivo ships, at sundry times before he left, in 1684 ; that the Dutch and Swedes had bought of the Indians the greater part of the land below Duck Creek, in the three lower counties ; and that Peun's Commissioners bought of the Indians (1685) from Duck Creek upwards to Chester or Upland Creek, Avhich lies about five miles above, north of the northern boundary of the three lower counties ; that Penn and his deputies exercised Government over said three lower coun- ties, from 1682 to 1702 (excepting in 1693 and 1694, when William and Mary appointed Benjamin Fletcher Governor); that this deponent was one of the Commissioners appointed to run the line between Maiyland and Pennsylvania (1732). [Many papers, covered with deponent's history of running the Circle, &c.] At a meeting of the parties, held in London, in May, 1724, Lord Baltimore produced a map of the Bays and Peninsula, which was the fairest and largest map of the same this deponent had ever seen, &c. John Teague, eighty-five years old, of Somerset County, Ma- ryland. Abraham AUmau, fifty years old. Is pretty well acquainted with New Castle County ; always heard the three counties called the " Three Lower Counties." David Hazard, sevcnly-three years old. Briekers Towuscud. 2i8 APPENDIX. William Wajiples. John Prcttyman. Woodman Stokclcy. John Anderson. John Cariion. William Beckett. Has travelgd from New Castle to Phila- delphia by the common road ; do not know of any bay or river that separates the couuty of New Castle from the Province of Pennsylvania ; that Philadelphia is about thirty-six miles from New Castle. Gideon Griffith. That it is about thirty-five miles from New Castle to Philadelphia ; there is no bay or river between ; tlie said towns are not on opposite sides of the bay or river. ' John McArthur. James Scotten. Thomas Powell. George Lawson. John Scott. Andrew Porter. George Eoss. Samuel Preston, aged seventy-five years. Saw William Penu when he first came into theProviuce(lG82),and became acquainted M'ith him on his second coming, about forty-one years ago ; Wil- liam Penn deceased 1718; has been a member of the Governor's Council for thirty-three years past ; Treasurer of the Province ; was Mayor of Philadelphia, &c. ; the three lower counties were APPENDIX. 249 always under the goverument of the Duke of York and William Penn; has lived in Philadelphia since 1736 ; that lie hath hnoicn Delaware Baij about fifty years, and believes the head of the same is at Bombay Hook, and about twenty-five or thirty miles to the south of the middle of the town of New Castle ; the distance between New Castle and Philadelphia is about thirty-six miles ; that there is no bay or river between New Castle County and the Province of Pennsylvania ; was one of the Commissioners to run and mark the Circle, &c. Edward Chambers. ^ George Fitzwater. Bombay Hook is the head of the Bay, about thirty miles southward of the middle of New Castle town. William Biddle, aged forty-three years. Abraham Taylor. Thomas Noxon, aged forty years. That he has formerly heard the said counties, by some ancient Dutch people residing in the Province of New York, called by the name of the South and South River ; and from the Dutch records at the city of New York, he has learned that, from 1630 to 1664, the three loiver counties were called South liiver, particularly where Lewestown stands Avas called Whorekill ; where New Castle stands, called Saudthook; afterwaixls, Fort Cosamir; and afterwards. New Amstel ; from the English records at New York, that from the conquest by the English, 1664 to 1680, the said lower coun- ties were sometimes called the South River ; aftcnvards, Delaware, Delaware River, and. Delaware Bay — sometimes the one and sometimes the other; more particularly by the name of New Castle and dependencies, the Whorckills and dependencies ; that William Penn, soon after his purchase of the Duke of York, erected the same into three counties, by the name of New Castle, Kent, and Sussex ; has heard many ancient Dutch and Swedes say that all the land of the west side of the Bay and River, from the ocean to the flills of the Delaware, was under the gov- ernment of the Dutch at the city of New York, then called 2i 250 APPENDIX. New Netlierlaiids ; that about the 3-ear 16G4, the said lands fell under the government of the English ; never heard the said lands were.nndcr the government of Lord Baltimore. Jacob Heulings, of Burlington county, N, J., aged fifty-eight years, a Deputy Surveyor of West New Jersey. Has examined the map, and run some of the lines ; found them correct. Thomas Miles, of Salem county, N. J., aged forty-nine years, a Deputy Surveyor of West New Jersey. Has surveyed lands on the eastern side of the river for sixteen years past ; has taken the width of the river in two places ; made a map of the same from eight miles below New Castle to ten miles beyond the said town. • Samuel Haskell, aged forty-nine years. AVilliam Vanderspriegel, aged twenty-three years. James Steel, aged sixty-five years. Was one of the Commis- sioners to run the lines between the three lower counties and Pennsylvania, and Pennsylvania and Maryland, 1732 ; that there teas about one hundred thousand acres of land granted by the authority of those under William Penn, held loithin the three loicer counties before 1682; and that between that time and June, 1735, about three hundred and twenty-eight thovisand acres have been granted by Penn and his heirs. John Housman, of Delaware, agetl. forty-four years. Shcppard Kolluck, of Delaware, aged twenty-six years. John Taylor, of Pennsylvania. Hereford Lardner, of Pennsylvania. William Shaw, of Delaware. Benjamin Eastburn, of Pennsylvania, aged forty-four years. Made various maps of the Peninsula, and other parts, from old pa]iers, observaiions, etc. APrENDIX. 251 Jeremiah Langlioriie, of Pennsylvania, aged sixty-six years. Charles Brockden, of Pennsylvania. "William Sill, of Pennsylvania, aged forty-thi-ec years. James Hendricks, of Pennsylvania, aged seventy-three years. John Hans Steclman, of Pennsylvania, aged eighty-five years. Elizabeth Mnrphy, of Pennsylvania, aged forty-three }'cars. Margarett Allen, of Pennsylvania, aged thirty-nine years. Patrick Baird, of Pennsylvania, aged forty-seven years. Benjamin Chew, of Delaware. Andrew Hamilton, 'of Pennsylvania, aged sixty-four years. Appointed one of the Commissioners to run the line between the lower counties and Pennsylvania and Maryland. AVith the Maryland Commissioners, was at New Castle to fix the centre of the circle ; walked about to view the town with Commissioners and others of the town, among whom was one John Hoarc, then Surveyor of the county of New Castle, since deceased, who then and there produced a map or plan of New Castle — an old map, &c. — which he found among the papers be- longing to the office of Surveyor, etc., when he was first appointed Surveyor, and has good reason to believe said map was drawn by one Arnoldus de la Grange, who was an ancient, considerable inhabitant of said town of New Castle, at and before the grant thereof to William Penn, Esq. ; had many ancient deeds and public writings, dated before the said grant, and also the instru- ment of allotment of the tenants of New Castle aforesaid to the said William Penn, on his first arrival there, which deeds, pa- pers, &c., were written by the said Arnoldus de la Grange ; and believes the names set down on said map are the writing of the said Arnoldus de la Grange. The records at New Castle also show the words " in Delaware 252 APPENDIX. river" aud like expressions, to have meant no other than tlie land or territory as settled on, and not the soil in or under the ■waters of that stream, as before mentioned. A few extracts have been made, to verify this. Ne^ca*io'''Kf- " -A-le^^ii^icr D. Henyossa' in behalf of the Right Hon Lord cords; Burgamaster of the city of Amsterdam, Govenor oi Delaware river, together with the Conncil," &c. Dated July 3d, 1664. Bouk A, r- *• " Francis Ijovclace Esqone of the Gentlemen of her Majestys coVos. "^ '^ '" Honerable Chamber and Governor General nnder his Eoyal Highness James Duke of York and^^Albany * * * To all to Whom these shall coine, Greeting. * * * " To have and to hold the said parcel of laud * * paying therefor yearly and every year as a quit rent luito his Eoyal Highness' use one bushel and a half of Winter Wheat when it shall be demanded by such officer or officers in authority as shall- be impowered and established in Delaware river and parts adjacent to command and receive the same." Dated February 26th, 1671. Book A. r, 7. " Know all men by these presents that I William Corrcr of wrds.^'""'' "°' Delaware river (Planter) have bargained and sold," &c. Book A, p 8. " Situate and lying upon Whorekill in Delaicare Bay." Now Castlo Ke- J o i. oundary. It follows (hat 2 M 274 APPENDIX. each held soil and sovereignty, in full dominion, to the middle of the river, or the main channel thereof, from the time they became States, withont any preference in either by possession, or by being first established on either bank. In this view of the case, the right of the Pea Patch depends on the facts as yon shall find them. The law of nations assigns the right of property to the State nearest to whose shore it lies, or between whose shore and the main channel the island is situated. If you believe the wit- nesses, the plaintiff" has made out his case in this view of it. But the nature of the case and the course of the argument makes it necessary to examine the title in other respects, in order to ascertain whether it must be decided on rules diifering from those prescribed by the law of nations for ascertaining the boundaries of States. This leads us to an inquiry concerning the original grants by the crown of Great Britain, of New Jersey, to the Duke of York, and of those counties ou the .DelaM'are by the latter to William Penn. By the charter of the Duke of York, in 1664, the King granted him all the lands from the west side of the Connecticut river to the east side of the Delaware bay. In the same year the Duke of York, to Lords Berkley and Car- tei'ct, the land to the west of Long Island and Mauhitas island, and " bounded on the east, part by the main sea and part by Hudson's river, and lieth upon the west Delaware bay or river, and exteudeth southward to the main ocean as far as Cape May, at the mouth of Delaware bay, and to the north as far as the northernmost branch of the said bay or river of Delaware," &c. Patt. L., app. 1, iv. In construing these grants it must be remembered that before that from the King, he Avas the acknowledged sovereign of the ■whole territory on both sides of the Delaware ; and though he granted soil and jurisdiction in full and absolute propriety, and established a proprietaiy government, yet it was with a defined boundary. So was the grant from the Duke to Berkley and Carteret. The f)i'oprietaries of New Jersey claiming by grant, therefore, were not on a footing with a State or nation claiming or settling a country on the bank of a river, who might extend their jurisdiction over its wliole bed, unless they interfered with the rights of another State. This grant of the King severed from the royal dominion a described portion of territory, beyond the I)ounds of which neither the Duke or his grantees could make APPENDIX. 275 any claims of rights, in opposition to the acknowledged sover- eignty of the King, over what was ungranted. Any claims which the proprietaries of New Jersey could make, or any pos- session which they might take beyond their assigned boundary, could, in itself, give them no title. Hence it has been decided by this court, in Corfield v. Coryell, 4 Wash. 371, &c., and in Bennett v. Boggs, 1 Bald. GO, that the west boundary of West Jersey, according to the terms and construction of the gi-ant, was the low water mark in the Delaware. In so doing, oiu* prede- cessors, as well as we, have followed the rule established by the Supremo Court in Handlcy's Lessee v. Anthony. That case arose under the cession from the State of Virginia of the United' States, of " all her right to the territory situate, lying, and being to the northwest of the river Ohio," which, by express stipulation, was to be laid off into independent States. Virginia had previously owned both sides of the Ohio, from Pennsylvania to its mouth ; and it was held that the cession commenced at low water mark on the northwest side ; that the river was the boundaiy between the States, not as in the case of two nations, each holding to the middle of the stream, " but when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river within its domain, and the newly created State extends to the river only ; the river, however, is the boundary." 5 Wh. 379. If any other ground were necessaty to j ustify this construction of the grant of the crown, it will be found on its face to contain an express grant " of Hudson's river." Had it been intended to grant the Delaware, it would not have been limited to the eastei-n 'side of it. So far, then, as depended on the grant or charter of Xew Jersey, it extended only to the low water mark on the Del- aware, which limited the right of soil and jurisdiction under the proprietary government, during its continuance, from 1664 till the surrender of the powers of government to the crown in 1702. We now come to the title of Delaware by grant. No patent or grant from the crown, for the three counties, has ever appeared ; and, from the opinion of the crown la\vj-ers, to whom the matter was referred, it would seem that none ever issued, at least not so far as to bind the King. Chcdmers 40, 1. This territory then remained as part of the royal domain, not having been severed by actual grant. As it was not in the origi- 27(5 APPENDIX. nal patent to tbo Duke of York, he could have uo claim, by orant, beyond the cast side of the Delaware. But the Duke made his deeds of feofiment on the 24th of August, 1682, to William Penn, comprehending the three counties. By the first, he conveyed the " town of New Castle and all that tract of laud lying within the circle or compass of twelve miles about the same," situate, &e., on the Delaware, " and all islands in the said river Delaware, and the said river and soil thereof lying north of the soutliernmost part of the said circle of twelve miles about the said town." " To have and to hold the said town and circle of twelve miles of land about the same islands/' and all tlie premises, and with covenant for further assurance thereof, &e. Appointing, also, attorneys to take pos- session and seisin of the premises, and deliver them to AVilliam Penn, &e. By the second deed, the Duke, in like manner, conveyed to William Penn all that tract of land on tlie Delaware, beginning twelve miles south of Xew Castle, extending to Cape Henlopen, with the free use and passage into and out of all bays, rivers, isles, and inlets, together with the soil, &c., isles, rivers, &c., situate in, or belonging unto, the limits and bounds aforesaid. 1 Laics of Ddaivarc, Jjjp. 1, 4. This deed contained also a covenant of further assurance, and a power of attorney to cei'- tain persons therein named, to take and deliver possession and seizin. Neither deed contains any recital of a patent or grant from the King to the Duke, though in the grant from the Duke, of New Jersey, to Lord Carteret and Berkeley, the patent to the Duke is recited. Both deeds contain a grant of seignQ;-ies and royalties, the effect of which was to grant not only the soil, but ' the rights of a proprietary as to jurisdiction and government, yet no authority for such a grant is referred to. "\Ve find how- ever, by an authentic document, the act of union between the thi'ee counties and AYilliam Penn, annexing them to the province of Pennsylvania, dated 7th December, 1682, the nature of the title which the Duke claimed and conveyed, set forth in the pre- amble and recitals. The country was in possession of the Dutch, who purchased it from the natives. The Dutcli surrendered it, upon articles of peace, to the King's Lieutenant-Governor, Colonel Nicolls, and afterwards to Sir Samuel Audross, Ijieutenant-Govcruor to the APPENDIX. 277 Duke, "and liatli by liiin been quietly possessed and enjoyed." 1 Lmcs of Delaware, App. 8. It tlius appears tliat the Duke claimed tins territory in right of conquest, and held it as an appendage to the government of New York, -nhicli was then in him. He had also claimed part of Pennsylvania by the same right, but had released it to "William Peun before the act of union as therein recited. Vide 1 Proud's Hist. Pa. 122, 124, 135, 200, 20G. Two questions arise on these deeds — 1st. "Whether they pass any title ; 2d. Their construction as to boundaries. It is a settled principle of the British Government, that a sub- ject cannot acquu-c territory to himself by the right of conquest. All acquisitions so made accrue to the crown. Chalmers 69. No subject can create or erect a seignory or proj)rietary govcrij- ment, unless he held them by a grant of these franchises from the King. A royalty, a seignory, or propriety, can be held only by act of Parliament, letters patent, or pi-escription. 4 Com. Dig. 454, D. 1 ; Davis. Rep. 165, &c. These would be fatal objections to tha operation of the deeds of the Duke of York, to pass either the right of soil or juris- diction to "William Penn, if the title to either depended alone on those deeds ; but as there are other considerations which bear on them, and will be stated hereafter, we will proceed to the con- struction of these deeds, assuming their validity. The same rules of construction apply to treaties of cession, ffrant.s by gov- ernments by letters patent, as to deeds of individuals, 6 Pet. 638, and these deeds must not be so construed as not to come in con- flict with a prior grant of New Jersey to the Duke, or by him tb Berkely and Carteret, for a government is never presumed to grant the same thing twice. The deeds must be taken according to the right and claim in which they were made, so as not to embrace territory which was not acquired from the Dutch, nor to authorize the exercise of any power in the government of New York, over any part ot New Jersey, which had been denied by the solemn declaration of the Duke of York in 1672, (Learn. & Sjj. 31, 2, 6,) and by the King in the same year, recognizing and confirming the ab- solute rights of Berkeley and Carteret as proprietors of New Jersey. Lcxm. & Sj). 39, 49. No part of the province was therefore embraced, nor could it 278 AITENDIX. pass by those deeds to William Penu, as it had been before granted by the former grantor, and as they contained no recital of a gi-ant by the King to the Duke, they shall not be taken by implication to embrace any part of what the King had granted. As both deeds were executed at the same time, and for contigu- ous territory, they ought to be construed alike, if the words will permit ; they must also be taken in relation to the parties to the grant, its object and the subject of the grant. The Duke was the grantor of two proprietaiy territories, on the opposite banks of the Delaware ; after the division of New Jersey between Lords Berkley and Carteret, the latter, to whom the west part M'as allotted, conveyed it to William Penn and others in trust. Learn. & Sji. 65, 7, 70. In 1682 William Penn was proprietary of the three counties in his own right, and joint proprietor of West New Jersey in trust. He could therefore acquire no right in New Jersey in relation to his trust, or to the injury of his cestui que trust. To construe the deeds so as to do this, would be contrarv to all rules of law ; as derogatory to the honor and integrity of the Duke, in granting what he had before confirmed, and Penn in accepting, for his own use, a grant of any part of what he held in trust for another. Besides, the main consideration of the deeds of feoffment was to reward William Penn for the services of his father, which could not be done by granting him that which belonged to the proprietors of New Jersey. From these considerations an obvious rule of construction arises ; the deeds to Penn must be construed strictly against the Duke, favorably to the elder grantee, under him, and strictly against the younger grantee ; so that they shall not be held to grant the same thing twice. Vide 6 Pet. 6, 38, d-c, for the rules of construing puhlio grants. We will now consider the two deeds thus construed. There are three points in the first deed : one in New Castle, ( Vide 1 Vesey 450) one on the Delaware, twelve miles north ; the other on the Delaware, twelve miles south ; but it does not purport to extend across the river, or to embrace any part of New Jersey within the circle, or, if it did, the grant would be so far void, for the reasons before given. It is of a " tract of "land" lying on the Delaware, the bounds of which must be on the bank, and not in the river, following the process of the circle. APPENDIX. 279 That this is the meauing of the deed is evident from the bound- aries of the second deed, granting " that tract of land upon Del- aware river and bay, beginning twelve miles south from the town of New Castle." ^Ve have, then, no dilBeulty in ascer- taining the land that was granted to be that which lay on the river between the two points, each twelve miles distant from a common circle in New Castle ; and from such centre twelve miles back from the river towards Pennsylvania and JNIaryland, and no other, nor beyond the low water mark on the river- Then follows the grant of " all islands in the said river Dela- ware, and the said river and soil thereof, lying north of the southernmost part of the said cu'cle twelve miles, about the said town. The habendum is of the said town and circle of twelve miles of laud about the same, islands and all other, the prem- ises granted or intended to be, &c. ; " and the same clause is in the covenant for further assurance, omitting the grant of the river, otherwise than as it may be included as part of the prem- ises granted or intended to be granted. A reference to the second deed will tend to ascertain the meaning of the first ; there is no grant of any part of the river, or any island below the be- ginning point of the second tract ; a grant of the use of the har- bors, waters, &c., belonging to the river and bay, precludes any construction which Avould make the deed pass the river, bay, or its waters, beyond the low water line. No word or expression is in it which could be made to include anything else ; the grant is of the free " use and passage into and out of all harbors, bays, waters, rivers, isles, and inlets, belonging to, or leading to, the same." Delaware River and Bay. Now it would be a sin- gular construction of the two deeds, to hold them to make the east boundary of the entire grant, the radius of a cii'- cle extending from the north and south points of the first graiit, across the Delaware in the water to the Jersey shore, and south to Cape Heulopen, only to low water line. Vi^c think the deeds are not to be so taken, and that the utmost latitude whicli can be given to the first, is, to include only such islands and such parts of the river, as lie between a direct line dra^^'n from the north and south points where the circle strikes the Delaware, and on its western bank. Taking the granting part of the deed, with the habendum and the covenant for further assurance, it would admit of a still narroAver construction. Ey 280 APPENDIX. omitting the river in the two latter clauses, wliieh specially men- tioned the main land and tiie islands, it might be fairly inferred that the grant was intended to cover no more, so as to make it conform to the second grant, below the twelve mile point, the grant' of New Jersey to Berkley and Carteret, and of Pennsyl- vania to "William Penn, all of M'hicli were limited by the Dela- ware as the boundary. Or, if that construction would Jje too strict, we would be clearly of tlie opinion that the gi-ant of " the river and the soil thereof" M^ould not extend beyond its main channel, according to the course of the river opposite its western bank, between the two twelve mile points, north and south of New Castle, upon the shore of the river. On this or any other view of the deeds of 1682, we think that they did not embrace that j)art of the river in wliich the island in question is situated. From the traditionary evidence iu the cause, you will probably concur with us in opinion tliat there was no island there at that time, or for a long time tliereafter; of this fact you will judge. If the island has arisen since 1682, it did not pass by the [grant] of islands in the Delaware ; if the site of it was then connected with the Jersey shore, by a bar or sand bank, as has been con- tended for by the plaintiff's counsel, then, if it was bare at low water, it belongs to Kew Jersey. Vide 5 Wh. 375. From the evidence as to the encroachment on the Jersey shore, opposite to where the island now is, you will decide on this fact. If, on the other hand, the site of the island has been always covered with water, we think it did not pass by the deed, unless you find it to have been, iu 1G82, west of the main channel of the river, but that the right to that part of the river remained in the King, as an ungrauted part of his domain. You M'ill then consider that if the place where the island now is was, in 1664, bare at low M'ater, it passed to Berkley and Carteret by the grant to them of New Jersey by the Duke of York ; if it remained always under water, it belonged neither to the Duke, Berkley and Carteret, or William Penn, by virtue of any title derived by the King's patent to the Duke, or his deeds to Peau, but that the right remained in the crown. "We" have stated to you that, in strictness, no title j^assed by the deeds of the Duke, because, being a subject of the King, any territory acquired by conquest by the Governors of New York, became the domain of the crown, which the Duke could no ArPENDIX. 281 grant, nor could lie create a proprietary government by his own authority. But though originally the title was not valid, it be- came so by the subsequent acquiescence of the crown in the long possession of the territory by AVilliam Penn, and the exercise of the powers of government from 1682 till the Revolution, as well as by various acts of the crown, recognizing the existence of a ^proprietary government, imder the deeds of the Duke of York. It was held so long ago as 1750, by Lord Hardwicke, in the great case of Pain v. Baltimore, that the title of "William Penn to the three lower counties was good by the possession of the Penns, and by their being permitted to appoint Governors over them which have been appointed by the crown. Long posses- sion and enjoyment, peopling and settling counties, is one of the best evidences of title to lands, or districts of lands, in America, that can be. Those persons, therefore, who make these settle- ments, ought to be protected in their possession as far as law and equity can. 1 C. S. 453, 454. This protection is afforded by the presumption of law that a long, quiet possession eithe.r of land or a franchise, began with a grant. This is what M'e call, in law, a title of prescription, not because it is believed that a grant ever in fact existed, but because the law will presume it, and not require any proof of the fact, or suffer it to be questioned. A direct grant of land in a royal haven may be presumed to have been made by the King, after sixty years uninterrupted possession, and whatever may be held by grant may be held by prescription, even against the crown. As to the three lower counties there is every evidence, short of the sign-manual of the King to letters patent, that the title was lawfully in William Penn and his heirs. You will, therefore, take itTis proved that the King had approved and confirmed the deeds of 1682, after a possession of ninety-four years, to the time of the Revolution. The title became as good as the King could make it. 9 Pet. 760. But there is a differ- ence between a title by prescription, or a grant presumed from long possession, and one derived by grant produced in evidence before you ; in the latter case the extent of the grant and its boundaries are defined, whereas in the former they depend on the claim and possession. Prescription can only apply so far as a 2>ossession has been had under claim and color of title, or acts of ownership or jurisdiction has been exercised. The presumed grant will cover all that has been quietly enjoyed, for such time 2n 282 APPENDIX. as suffices to raise the presumption, Ijut the notice of a title by prescription necessarily limits it to what has been possessed, or claimed by right or color of title. In reviewing the evidence of the case, we do not tiud any possession or claim of right, by the Penns or the State of Dela- ware, to this island, nor is there to be found iu the legislation of Pennsylvania, during the union of the Province with the three counties, or by the State of Delaware since the separation, any right asserted, or any jurisdiction assumed or exercised over it, until 1813, when she made the cession to the United States. It is, therefore, not a case where her title can be held good by pre- scription, or presumed grant against the King ; it must rest on the acts of approbation and confirmation by the crown, which gave the same effect to the deeds of the Duke of York as if they had been made under letters patent to him by the same bounda- ries. Assuming the title to be perfect — assuming also that it extended to that part of the river in which the island is situated, which is the strongest case Delaware can make — we proceed to the third view of the case, which is this : Taking the long enjoyment of the rights of soil and govern- ment in the three lower counties as conclusive evidence of a grant or confirmation by letters patent from the crown, then the proprietaries of xvew Jersey and William Penn, by their respec- tive deeds from the Duke of York, stood on an equal footing before the Revolution. Each is deemed to be in the actual legal possession, and to have the legal seizin of the subject matter of the grant, according to their resi^cctive boundaries, unless so far as the other may have taken and continued an adverse posses- sion. 6 Pet. 743. By an adverse possession is to be understood the exercise of acts of ownership in the soil, or the propriety right of jurisdic- tion and government, by one proprietary within the boundaries of the other, under the assertion of a right or color of title in himself to the place in controversy, as a part of his own terri- tory or propriety. When there arises such a case the actual possession of land, or the undisjjutcd exercise of tlie right of property by granting it, or of jurisdiction by acts of legislation, affecting it for a great length of time, the principle of prescrip- tion applies between two proprietaries, by which it will be pre- sumed that an uninterrupted enjoyment of a right of property or government was founded on an original grant or a confirmation. API'EKDIX. 2So It is on this principle alono tliat tlie title of the Duke of York and of William Penu, to the lower counties, can vest, in opposi- tion to the original right of the crown. The same principle must also apply to the proprietaries of New Jersey, if they can show a similar foundation for the prescription of a grant from the crown, or a confirmation to the extent of their possession or exercise of jurisdiction over the Delaware or the islands in it. It is also a settled principle of the law of nations that pi'cscription applies between State and State, nation and nation, when the j^ossession of territory, or the enjoyment of rights of sovereignty, has been long quiet and unquestioned. Vattell 121; Grot. 174, 180; Puff. 449. When a question of this kind arises between nations, the presumption is that ancient possession has been according to the original boundaries between them, or by some convention mutually made, not the presumption of a grant from one to the other, as that would imply an original exclusive right, which must be held derivatively. As to two proprietary governments separated by a largo river, prescription applies in fiivor of each against the crown, the common grantor under whom they both hold ; and between each other it applies as between two nations, for neither proprietary claims from the other or acknowledges any original right to what the one claims to have ever been in the other, so as to make it a subject of grant or coufirniation, in any way, but by a grant to himself from the crown, "We now come to the application of thes.e principles, to the claims of the proprietaries of New Jersey to islands in the Dela- ware, and the exercise of the powers of government on that river. It appears, that from 1739, at least, islands in the Delaware have been surveyed under "West Jersey proprietary warrants, and held by that title to the present day ; so that there has been an uninterrupted exercise and enjoyment of a right of property by the proprietaries for the ninety-seven years. The govern- ment of the province has been in the crown from 1702, so that these surveys and possessions taken under them, were acts of notoriety, presumed to be within the knowledge of the local Gov- enors, who were the immediate representatives of the crown ; and as the right was not contested, it would have been good by prescription, if the royal government had continued for sixty- years from the time of the survey ; but as the State of New Jersey succeeded to the rights of the crown, without ever ques- 284 APPEUDIX. tiouiug the right of the proprietaries to graut islands, every pre- sumption tliat could be made in their favor against the crown, applies to tlie State as its successor, by the declaration of inde- pendence, or in virtue of the treaty of peace, by the relinquish- ment of the King. It is also a matter of judicial history and knowledge, that the riparian owners of land on the Delaware have, from time immemorial, enjoyed the rights of fishery op- posite their shores, Mhicli has been transmitted and conveyed as property, and is so recognized by the compact between Kew Jersey and Pennsylvania in 1783. Various laws have also been referred to, regulating the right of fishing in the DelaAvarc, which are direct and unequivocal claims and assertions of right; and what gives them a greater* weight is, that they are the acts of a royal government over the province, whose boundaries must be presumed to be co-extensive with the exercise of legislative power. The King is, of course, presumed to have ratified and confirmed the acts of his Governor. The Penns also gi'anted islands in the Delaware, ojiposite and near the Pennsylvania shore; always exercised jurisdiction on the river ; and claimed those islands to the middle of the river, which rights ^yere asserted before the King in counsel, with suc- cess. 12S.& B. 209-10. So far, then, as respects the rights of the crown to any islands in the Delaware before the Revolution", or of the State of New Jei"scy since, they must be taken to be in the proprietaries by prescrijition, and the right of jurisdiction under the royal and- State government, to have been exercised by claim and color of right to the middle of the river, and therefore, as valid as if the King had granted, by letters patent, both soil and sovereignty. By the. same principles, the rights of the proprietaries in and over the three lower counties are perfect to the extent of any possession or exercise of jurisdiction or acts of legislation, ■which are the foundation for the presumption from prescription against the crown. But as there is no evidence that William Penn or his successor ever made any claim to the island in question, or exercise any jurisdiction in or over the Delaware, beyond the middle thereof, or the main channel, they can have had no rights by prescription. And admitting that, by the first deed from the Duke of York, this island would be within the twelve mile circle, the adverse claim of the proprietaries of New Jersey and ArPEXwx. 285 the exercise of jurisdiction to the middle of the river, wouhl bar the right of the Peuns by prescription, -whether they are consid- ered as private persons, or as proprietary government. As indi- viduals, the Penns could claim no exemption from the effects of time running on a long and uninterrupted possession -without an adverse possession or claim, by themselves; as a government, they must submit to the rule -which prevails among the States, that peaceable possession is evidence of original or agreed boundary. Thus the matter stood between the two proprietaries, till New Jersey and three lower counties assumed the position and rights of independent States ; the one abolished the royal, the other the proprietary government ; yet neither interfered with the proprietary right of soil within their limits, so that the only cliauge effected was of government. This left the jurisdiction over the Delaware and its islands a matter between the two States. The right of property in the island still remained a question, if at all, only one between tlie two proprietaries, until one of the States would assume tlie right to tlie proprietary in their sovereign capacity. From the 4th of July, 1776, the rights of soil and jurisdic- tion became separated, so that from that time the proprietaries \verc private owners of the laud, against whom time Avould run in favor of adverse possession by an individual ; it was no lon- ger a question between a proprietary and the King, or proprie- tary against proprietary', each being a government. There was no longer a propriety that could not exist in a State. The name of proprietary might be retained, but he could be viewed in no other light than any other great owner of land, who has the legal seizin and possession to the extent of his title, till he is disseized by an adverse possession, from which time a limita- tion begins to run on his right. In the year 1784 this island was surveyed for Edward and Clement Hall, on a "West Jersey proprietary Avarrant, under which it was held until their title became vested in the jjlaiutiff, from this time he stood in place of the A\''est Jersey iiroprietors, entitled to all their rights by prescription against the crown, against the Penns and the State of Kew Jersey, and, in his own right, by his possession, such as it was, entitled to the benefit of any limitation which had begun or commenced running from the date of the survey. As there was no adverse possession or claim, his legal seizin or possession continued till his disposses. 286 . APPENDIX. sion by the United States In 1815, a period of 31 years, which would liar tlie riglit of entry of any adverse claimant ; and, connected with the general claim of the proprietaries of New Jersey to the islands in the Delaware from 1739, would make the title good by a prescription of 74 yeai's' quiet enjoyment, adverse to any right under the deeds of the Duke of York to William Penn. On her becoming a State, Delaware had an election to consider herself as succeeding to the rights of the proprietaries of the three counties, and standing in their place, as to all their former rights of soil, in virtue of the deeds of the Duke of York, in Mhich case she would have been entitled to all 2">resumptious founded on prescription against the crown, to the same extent ' that the Penns were, or Delaware might claim, as succeeding to all the rights of the crown, as devolved on her by the Revolu- tion ; and, repudiating the deeds of the Duke as usurpation on the acknowledged prerogative of the King,. elect to hold the lands of the proprietaries in the original right of the crown. Such election, however, was not made till 18 years after the de- claration of independence, when, by a law of Delaware, passed in 1794, it was declared "that the soil and lands, within the limits of tlie State, became the right and property of the citizens thereof," by the treaty of jieace, by which the King relinquished all proprietary and territorial rights for the " sole use and bene- fit of the citizens ;" and " that the claims of the late and former pretended proprietaries of tiiis State to the soil and lands con- tained within the same, are not founded either in law or equity." 2 Laws Del. 1174-5. This solemn repudiation of any claim under the deeds to Penn, and the express claim asserted by the relinquishment of the crown as the source of the title of tlie State, to the unapprojiriated lands within their boundaries, -pre- cludes the State from claiming any benefit, by prescription, from the long possession of soil and government by the Penns, from 1682 to 1776, or by the deeds of the Duke of York; and as the State asserts title by the treaty of peace, as a cession by the King, she can have no better right than the King had at the time of the treaty or before ; if time had so run on his right, that he would have been presumed to have given a patent of grant or confirmation for any lands or of any proprietary or ter- ritorial rights, the bar would operate as well against the State as APPENDIX. 287 the King, iiiulcr M'lioiu the State held. Had Delaware claimed to hold by the right of I'cuii, there is suflicient evidence in the cause to 2)rcsinuc a right in the New Jersey proprietaries by pre- scrijition, to the island in question as against them. In such case Delaware must have claimed, subject to such right, had she claimed the lauds in the State as her own ; without declaring by what title, she could have rested ou any Mhieh could be pro- duced. Having, however, abjured any others than the title of the Crown, she must rest upon that in support of the right which she ceded to the United States by the act of 1813 ; that the title is not valid, because the principle of prescription had previously made good the title of the New Jersey proprietaries under the patent of the Duke of York, according to their possession or claim under or by color thereof. Another priuciple is also decisive against the right of Dela- ware : Assuuiing that no right existed in the Jersey proprietaries beyond low water mark in the Delaware, and that the survey of this island in 1784 M'as void, then, Delaware having re- nounced any title under the deeds of Penn, the two States, by their declaration of independence, stood on equal footing as each invested with the rights of the King to all that part of the Delaware and its islands which he had not granted. Their respective rights would extend to the middle of the river, or its main channel ; the consequence is, that if this island was nearest the Jersey shore, or east of the main channel, it belonged to New Jersey as a State ; her title passed to the plaintiff by the act of 1831, ceding the right of the State to him. Unless, therefore, you have difficulty in ascertaining where the main channel of the Delaware is, or nearest which shore the island lies, your verdict ought to be for the plaintiff. 288 APPENDIX. The following letters, from James S. Green, Attorney of De- fendant, relating to the trial of Gale v. Bcaling, appear in the report of J. K. Poinsett, Secretary of War, to the United States Senate, relating to the said matter. The report is dated January 27th, 1838, 25th Congress, 2d session. Prixceton, November 23d, 1836. Sir : — The case of John Den, ex. dem. Henry Gale v. Henry Bealing, tenant in possession, involving the question of title to the island called the Pea Patch, in the river Delaware, was tried last M'cek, before the Circuit Court of the United States for the District of New Jersey. The trial occupied three days, and has resulted in a verdict for the lessor of the plaintiff. The plaintiff proved every fact, and jn-oduced every document and paper named in the brief of General Wall, under date of June 9th, 1834, and which has been printed (Rep. No. 92). On tlie part of the defendant, the act of the Legislature of Delaware, of May 27th, 1813, the deed of feoffment from the Duke of York to William Penn, Anno Domini 1682, the act of Union, and the act of settlement between the three counties and the province of Pennsylvania, were all produced and read in evidence. The subject was fully and elaborately discussed, and Judge Baldwin delivered a clear, impartial, and satisfactory charge to the jury. I am not aware that anything more could have been done. Ex- ception to the charge of the Judge was noted, so that the case may be reviewed before tlie Supreme Court, if thought advi- sable. It has cost me much time and labor to iuvestigate the history and law of the case, as well as to try it, and it appears to me that I have a fair claim upon the Government for compensation for extra services. Be pleased to indicate your opinion on this point, and I will forwai'd tiie amount of the charge. ^Mth very great respect, your obedient servant, Jas. S. Green, Attorney of the United States, New Jersey District. The Hon. B. F. Butler, Acting Secretary of War. APPENDIX. 289 PpvINCETON, January 28tli, 1837. Sir : — In answer to your favor of the 25th instant, Avhicli I have just received, I enclose a cojiy of the affidavits read in evidence on the trial of the Pea Patch island case. Several other Tvitnosses Avere examined, but established no new point. The plaintiff further offered and read in evidence the several deeds and other documents named in the printed abstract of IMr. Wall, beginning with page 11 and ending with iJago 19, which I also enclose. On the part of the defendant, was offered and received in evidence the deed of feoffment from the Duke of York to William Penn, dated 1682, of New Castle and the twelve miles circle. This may be found in the first volume of the first edition of the Laws of Delaware. Also Avas offered and received in evidence, " An act of Union for annexing and uniting of the counties of New Castle, Jones, and Hoarkills, alias New Dale, to the province of Pennsylvania, and of natu- ralization of all foreigners in the said province and counties annexed." This act may be found in the 24th page of appendix, in the 1st volume of the Laws of Pennsylvania, by Dallas. I have no cojiy of the charge of the Court, but no doubt Judge Baldwin, avIio is now at Washington, will fui'nish a copy. A^^ith the papers enclosed, and a copy of the Judge's charge, the. Secretary of War can ascertain whether an appeal is neces- sary. Very respectfully, your obedient servant, Jas. S. Geeen, Attorney U. S., N. J. District. Gen. C. Gratiot, Engineer Departmentj Washington City. 2 o 290 APPENDIX. Duke of Yorke ) PUBLIC RECORD OFFICE COPY. Signet Office Docquett Book 35 Charles the Sccoiul. 1683. April. Aprill 1683 Annog r Es Caroli secundi tricesimo quiuto. Upon a surrend' made to bis Maty by his Eoyall Highnesse James Duke of Yorke of certaiiie Lrcs patents bearing date y" 22"' day of March last jjast granting unto him all that towne of Newcastle otherwise called Delaware and fort thereunto belonging lying between Maryland and New Jei'sey in America and sev- erall other lands tenem*' & hereditam'^ therein menconed His Mat^ is hereby pleased to grant unto the s'^ James Duke of Yorke All that towne of Newcastle otherwise called DelaM'are and fort thereunto belonging lying between Maryland and New Jersey in America And all that river called' Delaware and soyle thereof and all islands in the s'' river and all that tract of land upon the west side of the river and bay of Delaware w""" lyeth from Skoolkill Creeke upon the s"* river unto Bombeyes Hook and backwards into the woods soe flxrr as the Minquas County and from Borabeyes Hooke on the said river and bay unto the cape Henlopcn now called Cape James being the south point of Asea Warmett lulett and backwards into the woods three Indians dayes journeys together with all the lands islands soyle rivers harbours mines mineralls quarries woods marshes waters lakes fishings hawkiugs huntings and fowlings and all other roy- alties profitts comoditics and hereditam" to the said towne fort tract of land and p'mises belonging to hold to the s* Duke and his lieires for ever paying therefore yearly one bever skinn and such other clauses jjowers and authorities ai"e inserted as were directed by warr' und' his Ma" Royall Signe Manuall. Subsc'd by W Attor^ Geu" and p'cur by the Earle of Sund'- land. I certify that the foregoing is a true and authentic copy. "William Hardy, Assistant Keeper of Public Eceords. September 12th, 1873. APPENDIX. 291 PUBLIC RECORD OFFICE COPY. Siguet Bills of the 35''-' year of Charles the Second. 1683. April. Carol us R Charles the second &c. To all to ^vhom these p'sents shall come greeting Whereas Our dearest brother James Duke of Yorke hath surrendered unto us certaine L'res Patents bearing date the two and twentieth day of Slarch now last past whereby Wee did grant unto him all that towne of Newcastle otherwise called Delaware & Fort thereunto belonging lying betweene Maryland & New Jersey in America and severall other Lands tcnem'' and hcreditani" therein menconed which surrender Avee have accepted and by these p'sents doe accept Know yce that we'fe for divei's good Causes and consideracous us thereunto moving Of our especiall grace certaine knowledge and meere mocon Have given and granted and by these p'sents for Us Our heires and Succes- sors doe give and grant unto xiur dearest Brother James Duke of Yorke his heirs and assignes All that the Towne of New Castle otherwise called Dallaware and Fort therein or thereunto belong- ing situate lyeing and being betweene Maryland and New Jer- sey in America And all that River called Delaware and soyle thereof And all Islands in the said River And all that Tract of Land upon the West side of the River and Bay of Delaware which lyetli from Skoolkill Creeke upon the said River unto Bombeys hook and backwards into the woods soe far as the Minqua's Country and from Bombeys Hook on the said River and Bay unto Cape Henlopeu now called Cape James being the South point of Asca Warmett lulett and backwards into the woods Three Indians dayes Journeyes being formerly the Claime or possion of the Dutch (or purchased by them of the Natives) or Ivhich was by them first surrendered unto our Lievetenant Governour Colonel Nicholls, and which hath since been surren- dered unto S' Edmund Andross Lievetenant Governor to our said dearest Brother James Duke of Yorke and hath for severall yeares been in his possion with the free use and continuance in 292 APPENDIX. and passage into and out of all and. singular Ports Harbours Bayes Rivers Isles and Inletts belonging unto or leading to or from the said Tract of Laud or any part or parcell thereof And the Seas Bayes and Kivers and soyle thereof bounding Eastward and Southward on the said Tract of Land And all Islands therein And alsoe all the soyle lauds Feilds Woods Underwoods Mountaines Hills Fenns Swamps Isles Lakes Eivers Eiveletts Bayes and Inlets situate or being within the said Tract of Land and any of the limitts aud bounds aforesaid Together with all mines Mineralls Quarrycs Fishings Hawkings Huntings and Fowlings and all other Royalties priviledges profitts comodities and hereditaments to the said Towne Fort Tract of Land and p'misses or to any or either of them belonging or appertcyuing with theire and eveiy of theire appurtenances scituate lyeiug and being in America And all our Estate right title Interest benefit advantage claime and demand whatsoever of in or to the said Towne Fort Tract of Land and p'misses or any part or par- cell thereof-And the Revercon and Revercons Remainder and Remainders thereof Together with the yearely aud other Rents Revenues and profitts of the p'misses and of every f)art and par- cell thereof To have and to hold the said Towne of Newcastle otherwise called Delaware and Fort Tract of Land And all and singular other the p'misses with theire and every of theire ap- purtenances hereby given and granted or hereinbefore menconed to bee given and granted unto our said dearest Brother James Duke of York his heires aud assigues for ever To be holden of Us our heires and successors as of our Mannor of East Grecu- wich in our County of Kent in Free and Comon Soccage aud not in Capite or by Knightservice Yeilding and rendring aud the said James Duke of Yorke for himself & his heires and as- signes doth covenant and promise to yeild and render unto Us our heires and Successors of and for the same yearely and every Yeare one Beaver skynn when the same shall bee demanded or within Jsinety dayes after such demand made And wee doe fur- ther of our especiall Grace certain knowledge and meere mocon for Us our heires and Successors give and gi-ant unto our said dear- est Brother James Duke of Yorke his heires Dejjuties Agei^s Com- issioners and assigues by these p'sents full and absolute power and authority to correct punish pardon governe and rule all such the subjects of us our heires & successors or any other person' or APPENDIX. 293 persons as shall from time to time adventure themselves nito any the ports and places aforesaid or that shall or doe at any time hereafter inhabit within the same according to such Lawes Orders ordinances directions and instrucons as by our said dearest Bro- ther or his Assignes shall bee established and in defect thereof in eases of necessity according to the good discretion of his Deputies Comissioners Officers or assignes respectively as well in all Cases and matters Capitall and Crimiuall as Civill both Marine and others soe alwayes as tlie said Statutes ordinances and proceedings bee not contrary but as ueare as may bee agreeable to the Lawes statutes and Government of this our Eealme of England and saveing and reserving to Us our heires and successors the receive- ing heareing aud determining of the Appeale and appeales of all or any person or persons of in or belonging to the Towne Fort Tract of Land and p'misses aforesaid or touching any Judgment or sentence to bee there made or given And further that it shall and may bee lawfull to and for our said dearest Brother his heires and assignes by these p'sents from titiie to time to nominate make constitute ordaine and confirme such Lawes as aforesaid by such name or names stile or stiles as to him or them shall seeme good, and likewise to revoake discharge change and alter as well all and singular Governors Officers and Ministers which hereafter shall bee by him or them thought fit and needfuU to be made or used within the aforesaid Towne Fort Tract of Land and ji'misses And alsoe to make ordaine and establish all manner of Lawes Orders directions lustruccons Formes and Ceremouyes of Gov- ernment and Magistracy fit and necessary for and concerning the Government of the said Towne Fort Tract of Land and p'misses soe alwayes as the same bee not contrary to the Lawes and stat- utes of this Our Realmc of England but as ueare as may bee agreeable thereunto and the same at all times hereafter to put in execution or abrogate Ilevoake or change not only within the p'cincts of the said Towne Fort or Tract of Land and p'misses But alsoe upon the Seas in goeing and comeing to and from the same as hee or they in theire good discretion shall think fittest for the good of the adventurers and Inhabitants And wee doe further of our especiall grace certaine knowledge and meere mocon grant Ordaine and declare that such Governors Deputyes Officers aud Ministers as from time to time shall be authorized aucF appointed in manner aud forme aforesaid shall and may 294 APPENDIX. have full power and authority within the said Towne fort Tract of Land and p'misscs to use and exercise martiall Law in Cases of Rebellion Insurrection and JNIutiny in as large and ample manner as our Leivetenants in our Countyes within our Eealme of England have or ought to have by force of their Comission of Leivetenaucy or any Law or Statute of this Our Realme And wee doe further by these p'seuts for Us our heu-es and Successors grant unto our said dearest Brother James Duke of Yorke his heires and assigues that it shall and may bee lawfull to and for the said James Duke of Yorke his heires and assignes in his or theire discretions from time to time to admit such and so many person and persons to trade and traffick into and within the said Towne Fort Tract of Land and p'misscs and into every and any part and parcell thereof And to have possesse and enjoy any Lands and hereditaments in the parts and places aforesaid as they shall think fit according to the Lawes Orders Constitucons and Ordinances by Our said Brother his heires Deputies Comis- sioners and assignes from time to time to bee made and estab- lished by vertue of and according to the true intent and meaning of these p'sents And under such Condicons reservations and Agreem*^ as our said dearest Brother his heires and assignes shall sett downe order direct and appoint and not otherwise as afore- said And wee do further of our especiall grace certaine know- ledge and meere mocon for Us our heii-es and successors give and grant unto our said Dearest Brother his heires and assigues by these p'sents that it shall and may bee lawfull to and for him them or any of them at all and every time and times hereafter out of any of Our Eealmcs or Dominions whatsoever to take load carry and transport in and into theire \ayages for and toward the due plantacon of the said Towne Fort Tract of Land and p'mlsses all such and so many of our loveing subjects or any other strangers being not proliibited or under restraint that will become our loving subjects and live under our Allegiance and shall willingly accompany them in the said Voyages together Avith all such Clothing Implements furniture and other things usually transported and not prohibited as shall bee necessary for the Inhabitants of the said Towne Fort Tract of Land and p'misses and for theire use and defence thereof and mannaging and carrycing on the Trade with the People there and in passing and returning to and fro Yeilding & payeing unto Us our heires APPENDIX. 295 and successors the Customcs and diityes therefore due and pay- able according to the Lawes and Ciistomes of this our Rcalme And Avec doe alsoe for us our heires and successors Grant to our said dearest Brother James Dulie of Yorlce his heires and as- signcs and unto all and every such Governor and Governors Deputy or Deputies or other officers or Ministers as by our said Brother his heires or assigncs shall bee appointed to have jiower and authority of Government and comand in and over the In- habitants of the said Towne Fort Tract of Land and p'misses That they and every of them shall and lawfully may from time to time and at all times for ever hereafter for theire severall de- fence and safety encounter repulse expell and resist by force of Armes as well by sea as by Land And by all other wayes and meanes whatsoever All such person and persons as without the speeiall Lyeence of our said dearest Brother his heires or assignes shall attempt to settle and Inhabitt within the several p'cincts and limitts of the said Towne Fort Tract of Land and p'misses or any of them And alsoe all and every such person and persons whatsoever as shall enterprise and attempt at any time hereafter the destrucion invasion detriment or annoyance to the Towne Fort Tract of Land and p'misses aforesaid or any part thereof And lastly our will and pleasure is and wee doe hereby declare and grant that these our Letters Patents or the inrollment thereof shall bee good and effectuall in Law to all intents and purposes whatsoever ..Notwithstanding the not well and true reciteing and menconing of the p'misses or any part thereof or the limitts or bounds thereof or of any former or other Letters Patents or Grants whatsoever made or granted of the p'misses or of any part thereof by Us or any of Our Progenitors unto any person or persons whatsoever Bodyes PoUitick or Corporate or any other Law or other restraint incertainty or imperfection whatsoever to the contrary in any wise notwithstanding Altho' exprcsse meneon of the true yearely value or certainty of the p'misses or any of them or of any other Guifts or Grants by Us or any of our Progenitors or Predecessors to the said James Duke of Yorkc heretofore made in these p'sonts is not made or any statute Act ordinance provision proclamacon or restraint to the contrary thereof had made published Ordained or provided or any other Cause matter or thing whatsoever in any wise not- withstanding In wituesso &c "Wituesse &c Ex'^ R. Sawyer 296 APPENBIX.. May it please your most Excellent Ma'^ Upon a Sai'rencler made to your Ma'^ by his Royall Higlines James Duke of York of certaine Letters patents bearing date the two and twentieth day of March last past granting unto him all that Town of New Castle otherwise called Delaware and Fort thereunto belonging lyeing between Maryland and New Jersey in America, and seve- rall other lands tenements and hereditaments therein mentioned Your Ma'^ is hereby pleased to grant unto the said James Duke of York all that Town of New Castle otherwise called Delaware and Fort thereunto belonging lyeing between Maryland and New Jersey in America And all that River called Delaware and Soyle thereof and all Islands in the said River And all that Tract of Land upon the West side of the River and Bay of Dela- M'are \v°^ lyeth from Skoolkill Creek upon y" said River unto Bombeyes Hook and backwards into the woods so far as the Minquas Country, and from Bombeyes Hooke on the said River and Bay unto Cape Henlopen now called Cape James being the South point of Asca Warmett Inlett and Backwards into the woods three Indians dayes Journeys together with all the lands Islands Soyle, Rivers Harbors Mines MiueralLs Quarries "Woods Marshes Waters, lakes. Fishings hawkings huntings and Fowl- ings and all other Royalties profits comoditics and hereditaments to the said Town Fort Tract of land and p'misses belonging To hold to the said Duke of York and his heires for ever Paying therefore yearly one Beaver skinu And such, other Clauses Powers and Authorities are inserted as were directed by warrant under yeur Ma"°' Royall Signe manuall. R. Sa'svyer Aprill 1683 13 Apr. 1683 '[Endorsed'} — Exped' apud Westm" decimo sexto die Aprilis anno R R Caroli secundi Tricesimo Quinto F MORRICE I certify that the foregoing is a true and authentic copy. 15th September, 1873. William Hardy, Ass't Keeper of Public Records, APPEXDIX. 297 PUBLIC RECOED OFFICE COPY. Patent Roll of the 35* year of Charles the Second. First Part. (N. 24.) D con lUustriss Jacoho Duel Ebor sibi hcrccVt assif/n suis inxp- pitu. 24 Charles the Second by the Grace of God etc., To All to Whouie these Pseuts shall come Grceteing Kuowe yee that wee for diverse good causes and consideracous us thereunto moveing Of our Gspeciall grace certaine knowledge and mere mocon have Given and Granted and by these p'sents for us our heires and Successors doe Give and Grant unto our Dearest Brother James Duke of Yorke His Heires and assignes All that the Towne of Newcastle otherwise called Delaware and Fort therein or there- unto belonging situate lying and being between Maryland and New Jersey in America And all that tract of land lyeing within the compasse or circle of twelve miles aboute the said Towne situate lyeing and being upon the River of Delaware and all Islands in the said River of Delaware and the said River and Soyle thereof lyeing North of the Southermost parte of the said circle of twelve miles about the said Towne and all that tract of . land upon Delaware River and Bay beginning twelve miles South from the said Towne of Newcastle otherwise called Dela- ware and extending South to Cape Lopin Together with all the lands Islands Soyle Rivers Harbers INIines Miueralls Quarrys "Woods INIarshes Waters Lakes Fishings Hawkings Huntings and Fowlings and all other Royaltys Priviledges Pffitts comodi- ties and hereditaments to the said Towne Fort Tracts of land Islands and p'misses or to any or either of them belonging or appurteyneing with their and every of their appurtenances situate lyeing and being in America And all our Estate Riglit Title Interest benefit advantage claime and demand whatsoever of in or to the said Towne Fort lands or p'misses or any jiart or parcell thereof And the Revercou and Revercons Remainder and Remaindei's thereof together Avith the yeareley and other ■ 2p 298 ArrENDix. Rents Eeveuues and pffitts of the p'misses and of every part and parcell thereof To have and to hold the said Towne of Newcastle otherAvise called Delaware and Fort and all and singular the said lands and p'misses Avith their and every of their appurteuces hereby Given and Granted or hereinbefore menconcd to be Given and Granted unto our said Dearest Brother James Duke of Yorke his heircs and assignes for ever To be holden of us our heircs and successors as of our manner of East Greenwich in our County of Kent in Free and comou Soccage and not in Capite or by Knighte Service yeilding and rendring And the said James Duke of Yorke for himselfe his heires and Assignes doth covenant and pmise to yeild and render unto us our heires and Successors of and for the same yearly and every yeare Four Beaver Skins when the same shall be demanded or Avithin Nynety dayes after such demand made And Wee doe further of our cspeciall grace ccrtaiue knowledge and nicer mocon for us our heires and Successors Give and Grant unto our said Dearest Brother James Duke of Yorke his heires Dcputys Agents Comissioners and Assignes by these p'sents full and absolute Power and authority to correct punish pardon Governe and Rule All such the Subjects of us our heires and Successors or any other pson or psons as shall from time to time adventure themselves into any the Ports and places afore- said or that shall or doe at any time hereafter inhabite within the same according to such Lawes Orders Ordinances Direccons and Inslruccons as by our said Dearest Brother or his Assignes shall be established And in Defect thereof in cases of necessity according to the good discrcccon of his Deputys Comissioners Officers or Assignes respectively as Mell in all Cases and JMatters Capitall and Criminall as Civill botii marine* and otheres Soc alwayes as the said Statutes Ordinances and Pceedings be not contrary (but as near as may be) agreeable to the Lawcs' Statutes and Government of this our Realme of England and Saving and reserving to us our heires and Successors the receiveiug hearing and determineing of the Appcale and Appeales of all or any pson or psons of in or belonging to the Towne Fort Lands and p'misses aforesaid or touching any Judgment or Sen- tence to be there made or given And further that it shall and may be lawfull to and for our said Dearest Brother his heires and Assignes by these p'sents from time to time to noiate make APPENDIX. 209 constitute ordeyne aud confirme such lawes as aforesaid by such name or names stile or stiles as to him or them shall seeme good and lilcewise to revoke discharge change and alter as well all and singular Governors Officers and Ministers which hereafter shal be by him or them thought fitt and needful to be made or used within tiie aforesaid Towue Fort Lands and p'misscs And alsoc to make ordeyne and establish all manner of Lawes Or- ders Dircecons Instruccous Formes and Cercmonyes of Governc- mcut aud magistracy fitt and necessary for and couccrniug the Government of the said Towne Fort Lands aud p'misscs Soe alwaj'cs as the same be not contrary to the Lawes aud Statutes of this our Eealmc of England but (as near as may be) agree- able thereunto And the same att all times hereafter to putt in execucon or abrogate revoke or change not onely ^^•ithin the p'cincts of the said Towne Fort Lands and p'misscs but alsoe upon the Seas in goeiug and comcing to and from the same as lie or they in theire good disercccon shall think fittest for the Good of the Adventurers aud Inhabitants ^Vnd wee doe further of our espcciall grace certaine knowledge and meere mocon Grant Ordeyne and Declare that such Governors Deputys Offi- cers and Ministers as from tynic to tyme shall be authorized and appointed in manner antl forme aforesaid shall aud may have full power aud authority within the said TowneFort Lands and p'misscs to use and ex'cise Martiall Law in Cases of Rebellion Insurreccon and Mutiny in as large and ample manner as our Leivetenants in our Counties within our llealme of England have or ought to have by force of comission of Leivetenancy or any Law or Statute of this our Rcalme And wee doe further by these p'sents for us our heires and Successors Grant uuto our said Dearest Brother James Duke of Yorke his heires aud assigncs That itt shall and may be lawfuU to and for the said James Duke of Yorke his heires and Assigncs in his or their discreccons from tyme to tyme to admit such aud soe many pson and psons to trade aud traffick into and within the said Towue Fort Lands and p'misscs and into every aud any part and par- cell thereof and to have possesse and enjoy any Lauds and Hereditaments in the parts and places aforesaid as they shall thiucke fitt according to the Lawes Orders Constitucons and ordinances by our said Brother his heires Deputys Comissioners and Assignes from tyme to tyme to be made and established by 300 appendix; virtue of and according to the true intent and meaneing of these p'sents and under such condicons Keservacous and Agreements as our said Dearest Brother his heires and assignes shall sett downe order direct and appoint and not otherwise as aforesaid And wee doe further of our especiall grace certaine knowledge and meere mocon for us our heires and successors Give and Grant unto our said Dearest Brother his heires and assignes by these p'sents That it shall and may be lawfull to and for him them or any of them att all and every tyme and tymes hereafter out of any of our Realmes or Dominions whatsoever to take loade caiTy and transport iy and into their voyages for and towards the Plantacon of the said Towue Fort Lauds and p'misses All such and soe many of our loving Subjects or any other straingers being not phibited or under restreint that will become our loving subjects and live under our Allegiance and shall willingly accompany them in the said voyages together with all such Cloathing Implements Furniture or other things usually transported and not phibited as shal be necessary for the Inhabitants of the said Towne Fort Lands and p'misses and for their use and defence thereof and manageing and carryeing on the trade with the People there and in passing and returneing to and fro yeilding and paying unto us our heires and Successors tlic customes and dutys thei'cfore due and payable according to the Lawes and Customes of this our Realme And wee doe also for us our heires and Successors Grant to our said Dearest Brother James Duke of Yorke his heires and assignes and to all and every such Governor and Governors Deputy or Deputys or their Officers or Ministers as by our said Brother his heires or assignes shall be appointed to have power and authority of Governement and Comand in and over the Inhabitants of the said Towne Fort Lands and p'misses That they and every of them shall and lawfully may from time to time and att all times for ever hereafter for their severall defence and safety Encounter Repulse and expell and Resist by force of Armes as well by sea as by land and all ways and meanes whatsoever All such pson and psons as without tho speciall lycence of our said Dearest Brother his heires or Assignes shall attempt to settle and in- habitc within the severall p'cincts and limitts of the said Towue Fort Lands and p'misses And also all and every such pson and psons whatsoever as shall enterprize and attempt att any time ^PENDIX. 301 hereafter tlio Destruccon luvasion Detriment or Annoyances to the. jjarts places Towne Fort Lands and p'misses aforesaid or any part thereof And lastly our "Will and Pleasure is and wee doe hereby Declare and Grant that these our Letters Patents or the InroUmcnt thereof shal be good and eiFectuall in Law to all intents and purposes whatsoever Notwithstanding the not well or true reciteinge or menconing of the p'misses or any part tliereof or the limitts or bounds thereof or of any former or other Letters Patents or Grants Whatsoever made or granted of the p'misses or of any part thereof by us or any of our pgeni- toi's unto any psons whatsoever Bodys Politick or Corporate Or any other Law or other Restrainte Inccrtaincty or Impfeccon ^\'hatsoever to the contrary in any wise notwithstanding al- though exp'sse mencon &c In Wituesse &c Witnesse the King att Westm the twoe ancl twentieth day of ]March. By Writt of Privy Scale &c. I certify that tlie foregoing is a true and authentic copy. William Hardy, Assistant Keeper of Public Records. 13th September, 1873. 302 ArpEXMX. Kingdom of England, City of London, s.9. Arthur Henry Bleed;, being duly sworn, upon Ills oath saith — That he is a resident of said city, and has been employed for the past three yeats by Henry Stevens, of said city, whom he has assisted at various times in transcribing from and collating by the records of the said Kingdom, various documents relating to the Colonial History of the United States, and in such em- ployment this deponent has caused to be transcribed from the records of the State Paper Office, of said Kingdom, now contain- ed in the Record Office thereof, the documents hereto annexed, and that the same are true copies from said records, which con- sist of the original documents bound together, except in the case of the letter to William Penn, Proprieties, Vol. 28, p. 55-56 ; a like letter Proprieties, B. T., Vol. 28, p. 267 ; and the letter from William Popple, Proprieties, B. T., Vol. 31, p. 70-71, which are records copied in a- book. And deponent further saith — That he has placed before each document a reference to the book and page where each is to be found, and copies of the en- dorsements and titles thereof respectively. That in such reference, the letters P. R. O., B. T. mean Public Record Office, Board of Trade, and refer to books with such indorsements remaining in said office. And deponent further saith — That after the copying the said documents, he personally went over, examined, and compared the said copies, side by side, with the originals, phrase by phrase, and M'ord by word, with special reference to spelling, punctuation, and the use of capitals, figures, and other signs, and the deponent, after the most careful comparision, believes the same to be exact copies of the originals in all said particulars, he having had much experience and prac- tice in this kind of comparison, and further, this deponent saith not. A. H. Bleeck. APPENDIX. 303 Sworn, ancT solemnly declared, at the Mansion House, in the city of Loiulon, tliis 11th day of September, 1873, before me. Sydney II. Waterloo, Lord Mayor. [l. s.] Rich. Hawley, Dcpij. Registrar. Sworn, at my office. No. 21 Birchin Lane, Cornhill, in the city of London, England, this 11th day of September, 1873, be- fore me. [l. 8.] Edm'ix a. Bueavash, Not. Pub. [Lidorscd'j—V. E. O., B. T., Colonial Papers, Vol. 41. 13 April! 83 Grant of Dellaavaee B. C. P. 48. May it please Your Most Exc' ISIa'^ LTpon a Surrender made to your Ma'^ by His Roy" Highness James Duke of York of certain Letters Patent bearing date the two and tAvcutieth day of March last past, granting unto him all that Town of New Castle otherwise called Delaware and Fort thereunto belonging, lying between Maryland and New Jersey in America, and severall other Lands, Tenements and Heredita- ments therein mcnconed ; Your Ma'^ is hereby pleased to grant unto y" said James Duke of York all tliat Town of New-Castle otherwise called Delaware and Fort thereunto belonging, lying between Maryland and New Jersey in America; and all that River called Delaware and Soyl thereof, and all Islands in y' said River and all that Tract of Land upon y° West side of y" River and Bay of Delaware, which lyeth from Skookill Creek upon y° said River unto Bombeys Hook and backwards into the Woods so far as y° Miuquas Country ; and from Bombeys Hook on y° River and Bay unto Cape Henlopen now called Cape James, being the South point of Asia Warmet Inlet and backwards into y" Woods three Indian days Journey together witli all y° I^ands, 301 ArPENDIX. Islaucls, Soyl, Rivers, Mines, Mineralls, Quarries, Woods, Marshes, Waters, Lakes, Fishings, Hawkings, Huntings, and Fowlings and all other Koyaltics, Profits, Commodities and Hereditaments to y" said Town, Fort, Tract of Laud and Prem- ises belonging to hold to the said Duke of York and his Heira for ever. Paying therefore )'early one Beaver Skinu and such other Clauses, Powers and Authorities are inserted as ■\vere di- rected by Warrant under your Ma'' Royall Sign ISIanuall. R. Sawyer 13 Apr. 1683. llndorsed}—?. R. O., B. T., Colonial Papers,A^ol. 41, B. C. P. 5. 3 May 1683. Reference, of My LP Baltemore's Petition concern'' Y^ Duke's Grant. Rec* y' 4* May 83 Read 30 May, 83: 23 June, 83 23 July, 84 18 Aug: 85* 2 Sept: 85 8 Oct: 85 17 Oct: 85 31 Oct: 85 Eutd. B. of Maryl. P— 105 B. C. P. 5. At the Court at Hampton Court tlie 31" of May 1683. By the Kings most Excellent Ma'^ & the Lords of his Ma" [l. s.] most Hon"' Privy Couucill Upon reading this day at the Board the humble Peticon of Richard Burke Gent Servant to thejlight Hon""'' Cliarles Lord Baltemore Praying iu behalfe of his Lo"" that a Grant (w"'' is passing) from his Maj''" to his Roj^all Highness the Duke of Yorke of the Towne of Newcastle and the Adjacent Country on the Confines of Maryland may not passe the Great Scale, untill his Ma'^ shall be satisfied of the Extent of Letters Patents for- merly granted to Cecill Lord Baltemore, wherein the said Towne and Adjacent Country is allcdgcd to be comprised; His Ma"" iu APPENDIX. oOo Coiincill was pleased to Order that the Examination of that wliolc matter be, & it is hereby referi'cd to tlie Kight Hon*"'" the Ijords Committees of tliis Board for Trade and Forrcigne Plan- tations, and upon their Lo'" report of the State thereof with tlieir opinion thereupon his ]\ra'^ will declare his further pleasure. riII,LI.OYD. llHdorscd']—l\ R. O., B. T., Colonial I'apers, Vol. 41. For the Right IIonnoral)Ie Lyonell Jenkins one of liis Maies tics principal) Secretaries of State Present at AVhite Hall 11. Deceml>'-83 IMy 1/ Baltemore Hon" S'- I knov.' it is to great a boldnes I take in givcing you the trouble so often as I do with my I'res ; w"*" I should not presume to do, did not a very great conccrnc of mine lye afore the Coun- cil, of w"*" 3'ou are ; It is S"' ab' a Grant w°'' I am assured my ill Neighbor AV" Penn is endeavouring by his Agents in Engl'' to gett passt the Great Seal, of no lesse then one Third of my Province, I mean that part w""" lyeth to the Eastward of Chese- peaek Bay, and is on delaware River to tho southward of 40"" degi'ec N. Latitude, w""" he pretends was seated by some dutch afore my Patten for ISIaryP was granted ; w°'' neither ho nor his Agents are as yet able to prove ; and when ever they do, it will signifie little to my preiudico ; for I will sufficiticntly make it Evident that if any dutch were there at that time seated, they Avere but usurpers and had usurped what they so seated ; being never own'd by tlie states of Holland ; nay I M'ill oblige my selfe to prove such vv-ere disown'd by y° states, if I may have liberty and time allowed me till INIay next to appeare in Person at the Council board there to defend my Right w""" I hope you'l favour me so far as to procure for mo, and I shall account my self highly obliged and for ever remaine S' Y' humble faitlifuU Serv' C. BaltemopvE 11"' dcccmb'- 1GS3 2q 306 APPENDIX. [Indorsed}— V. E. O., B. T., Colonial Papers, Vol. 41, B. C, P. 22. Meji^^ Concern Pensylvaxia Rec' & Read 12 Feb^^ 8| The Business put off till Aprill M'hcn my 1/ Baltcmorc \\\\\ be here A Certain Tract of Land in America having been Surrendred long since by y° Dutch to y" King, & ever since in y° possession of His Royall Highnes His Royall Highness having demisd it to "William Penn Esq' (lying contiguous to Pcnsilvania) at a Rent, The Lord Balte- more now disturbs AV" Penn & his Agents there, & Opposes y" passing of a Patent of it to His Roy" Highnes liere And upon a Hearing before the Lords of y" Comittee of Plan- tations it being allcdged in the bclialf of His Royall Highness that tiiis Tract of Land Mas inhabited by Christians before y" Lord Baltcmore's Patent, w"'' Extended only to Land unin- habited by Christians, It was Ordered tiiat they should be ready with proofs to tliat point. It is now desird in the behalf of His Royall Higness, a day may be appointed to be heard to it. {Indorsed}—!'. R. O., B. T., Xew York, Vol. 4., B. F. P., 23. M" Penns advice to the Inhabix^vnts of Pensylvaxia Rec'' 20 Dec: 1693 from Coll Fletcher Read 27 Dec. 93 & 2 Feb 9J Extracted from a letter of William I'enn to a Certain person in Philadelphia. For what concerns the Commission to the Governor of Xew- yorke to add you to liis care during the A\arr and my al:)scnce I APPENDIX. 307 referr you to Thomas I Colmc the bearer who is fully instructed as also to some other letters of that import, in short insist upon your patent with wisdome & luoderacon but stcddy integrity you are to hear and obey the Crowne of England speaking in the language and voice of the Law which this is not but Sir Volo Sir Jubeo &c doubtlesse ujion missadvice of j'our emulous neighbours that suggests the French will make way into the Colonyes by you, Sett forth the falshood of it by your singular situation by laud and sea Your hazards charges labours and that the Government Avas your motive more than land and that you were a people that could have lived here at home and went not upon motives of guilt or poverty and that it M'ill tend to the ruiue of the Plantacon which has brought and daily brings in more customo to the Crowne than revenue to the Government there And send this over to Tho: Barker Phi: Ford Jos Martin and Fran: Plumsteed and others concerned and both freiuds and others of London and Bristoll will deliver your Representation to the Lords of the Plantacons or to the King and Council if you will but protest against any proceeding of the Governor of JScwyorke upon his arbitrary Commison which as I said before must follow from misinformacou aud an excess of care in the Lords to preserve the Colonyes from the French. By another Letter to the freiuds in Pensylvania jM'' Penu writes " to finde out a hundred persons in " the Countrey of Peusilvauia each to lend liim cue hundred pounds without use for three years and without any oy° security than his own bond and promises them that within Six months at farthest after the receipt of it he will imbarquc for that place with all his family. Some meetings have been about it and It is reported that how much soever they appear his freiuds they stagger when he comes neer their purses those that are able want better security aud those that are not (to excuse themselves saying they would if they could. This Accounts comes to By Letter from Philadelpiiia. Ben Fletcher 308 APrEjsDix. P. R. O., B. T. America & AYest Indies. rennsylvania. Y. 599. {Indorsed) 12 July 1694 Order Referring M" Attorney Generll ; Report upon IM" Pex's Petition to the Committee Rcc^ 13 July 94 Ent lib Pnsilvauia p 43 B: A: P: 11: [l. s.] At the Court at Whitehall the 12"' of July 1G94 J5y the Lords of Their Ma'>' most Hono"' Privy Councill". Upon reading the annexed Report of Their Ma'-'' .Vtturuy and Solieitor General!, touching the Right of Government both Civill and Militaiy in the Province of Pensilvania, gran by Letters Patents from King Charles the Second under the great Seal of England bearing date the 4* day of March in the 33'' Year of His Reigne unto William Pcnn Esq", And also touching a Com- mission to Colonel Fletcher Governor of Yorkc, v,ho was ap- pointed by his ]\Ia'^' to be Captain Generall and Governor in Cheif of the said Province of Pensilvania. It this day Ordered in Councill that it be and still is hereby Referred to the R' Ilono"'" the Lords of the Committee of Trade and Plautations, for their Consideration, and to Report -what their Lo'''" conceive fit for Her Ma*^ to do in the matter. Y'm. Bridoemak. To the Queens most Excellent Ma'''^ May it please your ISIa'^. In humble obedience to your Ma'^' Order in Councill annexed, upon the Petition of AYilliam Penn Esq" Whereby we arc com- manded to Consider of the said Petition, and of the letters Patents Granted to the said William Penn of a certain Tract of Ground called Pensilvania in America; And also of the Com- mission Granted to Col. Fletcher, and to Report Our Opinion APPENDIX. 309 upon the whole matter to IV Ma'^ in Couucill. Wee have ]wruscd the letters Patents granted by His late ]\Ia'^ King Charles the Seeoiid under the Great Seal of England bearing date the fourth day of March in the 33* Year of His said late Ma'^' Eeigue Avhereby His said Ma'^, for the Considerations therein mentioned, was pleased to Grant to the said W" Penn his Hcires and Assigncs a large Tract of Land in America, therein described and called by the name of Pensilvania, to be held of His said late Ma'^ His Hcires and Successors Kings of England, as of Their Castle of "Windsor, in Free and Common Soccagc, by feality and llie yearly Rent of two Beaver Skins, and the fifth part of the Gold and Silver Oar found in the limitts of the said Tract of Ground ; And His said Ma'^ did thereby Erect the said Country and Islands into a Province, and did for Himself, His Heires and Successors Constitute the said W" Penn, his heires and Assigncs the true and absolute Proprietaries of the said Country and Premisses. Saving to His said Ma'^ His Heires and Successors, the Faith and Allegiance of the said W" Penn, .his Hcires and Assigncs, and all other the Proprietaries Tenants and Iidiabi- tants within the said Territories, And also the Soveraignty of the said Country, And did Grant to him and them, amongst divers other Powers, Jurisdictions and liberitics therein men- tioned, I'ower to make Enact and publish Lawes for the good Government of the Country, and to. Constitute and appoint Judges and other officei's, and Erect Courts for the Civill Gov- ernment ; And also authority to him and them, by themselves or their Captains, to Train and Muster the Inhabitants of the said Province, and to use all sucli Powers as a Captain Generall of an Army may do. Wee have also perused a Copy of Col. Fletchers Coamiission, produced to us by M"" Penn, dated the 21"' of October in the fourth year of Your Ma'^'^ lleigne, wherein is recited, that by reason of great neglect and miscarriages in the Governm' of Pensilvania, and the absence of the Proprietary the same was falne into disorder and confusion, by meanes whereof not only the publick Peace and administration of Justice M'hcreby the Properties of Yo"^ Ma'^° Subjects which should be preserved in in those parts, Avas broken and violated ; But there was also great want of Provision for the Guard and Defence of the said 310 ArrENDix. Province against You'' Ma'^° Enemies, wlicreby the said Province adjacent Colonies were much Exposed and in danger of being- lost from the Crown of England, therefore your ma'^^ for the prevention thereof and for the better Defence and Security of your Subjects luhabirtiug in those Parts during time of war did find it necessary to take the Government of Pensilvauia into your hands and under your immediate care and Protection, and did therefore constitute and appoint Col. Fletcher to be Your Captain Gcnerall and Governor in Cheif in and over the said Province of Pensilvania during Your Ma'^' pleasure. We arc humbly of Opinion that by the said letters Patents the Eight of Governm' both Civill and Slilitary i« the said Pi'ovince of Pensilvania was granted to the Petioner, subject nevertheless to your Ma'-'' Soveraignty over the said I'rovincc and the Inhab- itants thereof, by vertue of which Soveraignty, ^Vee humbly conceive Your ]Ma'''° in Cases of Extraordinary Exigencies hapn- ing or arising through the default or neglect of the Petitioner or of those appointed by him, or of any inability of the Petitioner to protect or defend the said Province and the Inhabitants thereof, in times of Warr or imminent dangci', may Constitute a Governor of said Provienco for the Protection and Preservation of the said Province, and Yo'' ^la'^' Subjects there ; and upon the reasons and Grounds mentioned in Col. Fletchers Commis- sion, Wee arc humbly of opinion that Your Ma'^ might Law- fully Grant such a Commission, but when those reasons and Grounds do fail or Cease, then wee do humbly conceive that the Ilight of Government doth belong to your Petitioner. All w""" neverthelesse is most humbly submitted to your I\Ia'-^' Royall wisdom and pleasure. 12 July 1694 Edw. Waed ^ A true Copy • Tiio. Trevok APPENDIX. 311 r. R. O., B. T., America & West Indies, rcnnsylvania. Vol. 599. {Indorsed) 25 July 1694 Report of the AttoPvXey and Solicitor Gen"' upon THE Grants of Nem' Castle &c to M. Pen Read 27 July 94 B: A: P: 12: Ent lib Pcnsilvania p: 45 To the Right Hoii"» tlic Lords of the Goraittee of Trades & plantacons. May it please yo"^ Lordpps 51'' Peiin aequainting us that it was yo'' Lordpps pleasure that Avce should lay before your Lordpps his Tj-tle to the Gountrey of Newcastle and all the Tracts of Laud depending thereon in America to which as well as Pcnsilvania the powers of Colouell Fletchers Gomission doe Extend, He also produced to us the writings ct Evidences following that is to say One Indenture bearing Date the 24"' Day of Aug' 1G82. made Between his then Royall Highness James Duke of Yorke &" of the one part and the said i\I' Penu of the other part Whereby his said Royall Highness for the good will he bore to INI"' Penn & for the consideracon of 10^ Did Bargain, Sell Enfeoife & con- firme to the said M" Penu his heires and Assigncs All That the Towne of Newcastle otherwise called Delaware in America, and all that Tract of Laud lying within the Gompass or Circle of Twelve Miles about the same scituate lying and being upon the River Delaware in America, and all Islands in the River Dela- ware and the said River and Soyle thereof lying North of the Southermost part of the said Circle of 12 Miles about the said Towne, together with all Rents Services Royalties Franchises Dutys Jurisdiccons Libtyes and priviledges thereunto belonging And all the Estate Right Tytle Interest powers property Clayme and Demand whatsoever of his said Royal highness of in or to the same or to any part or parcell thereof (w* a saving to his said Royall highness his Agents & Servants the Free Use of all Ports Wayes & passages into through and out of the bargained p'misses) and under the reserved Rent of five shillings to his 312 APPENDIX. said Highness his heircs and Assignes at Michas Yearly w"" a Covenant from M"' Penu his heirs and Assignes to pay the same Kent accordingly, And a Covenant from his Royall Highness his heircs & Assignes with ]\P Pcnn for makeing further assurance during Seaven Ycarcs and a Letter of Attorney in the body of the Deed to two persons to make Livery The deed is Endorsed to be entred in the OSicc of Records for Province of newYorke the 21^' of Novemb' 1G82, & Inrolled iu the Excheq in 1684. One other Indenture of the same Date w* the others whereby his s* Royall bigness for Tenu shillings & other Considcracons therein menconcd Did Bargaiuc Sell Enfeoffo and Confirme unto the said INI' Peun his heircs and Assignes All That Tract of Laud upon Delaware lliver and Eay beginning twelve Miles South from the Towne of Newcastle otherwise called DolaM-are & extending South to the Whore-Kills otherwise called Copin Lopen together w"' Free and undisturbed use and passage into and out of all harbours Bays AVaters Eivcrs Isles and Inlctts be- longing to or leading to the same Together m'* the Soyle Fields "Woods Vnderwoods Mountaines Hills Fenns Isles Lakes Rivers Riviletts Bays and Inlotts scituate in or belonging unto the Lymitts and Bounds aforesaid together w"" all Sorts of jNIineralls and all the Estate Interest Royaltyes Franchises powers privl- ledsres & Imunities whatsoever of his said Rovall hiirhness tliere- in or iu or unto any part or parcell thereof w* the lik° saving to his Royall bigness his Agents and Servants as in the former, onely these last p°misses arc mentioned to be holden of his said Royall highness and his heircs as of their Castle of New-Yorke in Free and Comon Soccage under the Yearly Rent of one Rose at Michaelmas Yearly if Demanded, M"' Penn Covenants within a yoare to Erect a Registry upon the p'misscs and therein to Sett downe all Rents and profitts w""* he his heircs or Assignes should any ways make raise or procure out of the p°misses and att Michas Yearly to pay and deliver to his said Highness his heircs and Assignes one moyety thereof w"* power of Distress to his Highness his heircs and Assignes for nou payment thereof. And a Covenant for his Highness his heirs and Assignes to make fur- ther assurance during Seaven Yeares The Indenture of the In- heritance is Endorsed to be Entred in the Office of Records for the Province of New Yorkc the 21* of Novcmb'' 82 and there is a Letter of Attorney in it to make Livery ArrENDix. 313 By virtue of w""" Deeds M' Pemi aiBrmes he quietly held and enjoyed all the p'misscs thcrehy Granted as fully as he did tlie Province of Pcnsilvauia untill the comeing of Coll : Fletcher and his Entrance by virtue of his Comission and that the In- habitants of these Countrys as well as those of Pcnsilvauia con- stituted the Assembly held under Colonel Fletcher that made those Laws which are now humbly offered to her Ma""' Eoyall approbacon. 25 July 94 Edw: Ward. Tiio: TKEVon: [Indorsed^— !>. R, O., B. T., America & West Indies, Pennsyl- vania, Vol 599 B: A: P: 1" - 1 : 3 August M" Pex's Agreem'"' Coxcer. the Law'S of Pexsilvaxia &c Ent lib Pcnsilvauia p: 48. The Laws of Pcnsilvauia made under the Governm' of Coll: Fletcher being this Day read at the Couucill Board before the Lords of the Comittce of Trade and Plantations in order to be represented to the Queens INIaj'^ for her Roy" approl)atiou or dis- sallowance and severall of them to witt, The Law about Erecting a Post Office at Philadelphia, The La-\v ab' Estates of Testates & Intestates, The Law Concerning y° produce of the Country to pass for Pay, The Law about Recording of Deeds, The Law about Rates for money. The Law about Factors and their lim- ployees not being allowed or Coufirmed, and other of the said Laws being rejected, AVilliam Pen Esq" doth consent and Agree that the said Laws which are not allowed or Coufirmed and all other the said Laws which shall not be coufirm'd or allowed and (which are not or shall not be rejected by Her Maj'^) Shall have the full Force and Vertue of Laws and be put in Execution in the said Country, untill the same shall be altered or revoked in a full Generall Assembly to be lield in Pensilvania Couucill Chamber Wm Penn the 3'' of Aug" 1694 Witness John Lovey 2r 314 APPENDIX. [Indorsed]— ^F. 11. O., B. T. Proprietaries, Vol. G, K 5. . Pexsylvania IVIem^ FROJt ]M" Kandolpii containixg Articles of Com- plaints AGAINST M"^ PeNN g-;}junel7M702 Entred fo: o5. K. 5 To the R' Hon"" the Lords C'omin' for Trade & Plantations. Articles aga' "William Penn Esq' pretended Govorno'' of the three Lower Counties on Delaware Bay in America. 1° He assumes y° Govcrnm' of y' three LoM-er Counties have- ing no Legall right, or power so to do. 2° He lays Taxes & Levies IMoncy upon her IMa""' subjects Inhabiting there, & Exacts Customs & lays 8° p Tunn upon all Foi-eigu Yessells which is destructive to y' Trade of England, M-hilst y" Inhabitants shiji oft' great quantities of Tobacco Yearly from tlience to Scotland directly. 3'^ He has not qualifyed himself to be Governo"' by being first allowed of by his Late ]Ma'^' Order iu Councill befor he entcr'd u2)on the Governm' of his Province, as by the Act for preventing frauds & regulating Abuses in y° Plantation Trade, made in the 7'" & 8* of his Late Ma'^ 4.1WT pjg jjjj^jj (^i^^pf, ],(, -^Ycnt over last to his Province) made Laws destructive, & Repugnant to the Acts of Trade ct Navi- gation, But for y' Eucouragm' of Illegall Traders. 5°'^ He hath Assumed to himself y" third part of all penal- ties, and Forfeitures tJ ranted to her Ma'^' her Heirs and Suc- cesso" by tlie said i\ct for preventing Frauds &c. which were not before particularly disposed of in y" said Act. 6'^" His late Governo'' iSP Markham hath also assum'd to him- self her Majesties third part of two Forfeitures and converted them to liis own use. 7'^ The s" Markham did on y« 30'" of Jidy 1G89 illegally & Arbitrarily Imprison the Surveyo' Gen" of her Ma"°' Customs, & threatned to keep him a Close prison" uutill he had deliver'd up to the said INIarkliam y° Plantacon Bond of lOOO"" enter'd into by John Deplovcy Mereli' in Philadelphia, who was security APPENDIX. ;3i5 w"" Stephen Blackleech M' of y° Brigautcen George of Xew England forfeited for breach of y" Acts of Trade. By. Avhich means y° prosecucon aga' Deplovey (who was then a man of a good Estate, but since insolvent) is wholly stopt. Her Ma*^ looses the Debt & y° Bond is dclivcr'd up to y" said Markhara by the prosecuto" before he could be set at Liberty. All which is luunbly submitted by Ed RAXDor.ni. S: G: June: IG: 1702: P. E. O., B. T. Proprieties, Vol. 2S, pages 55, 5G. [Entry.] To AVilt.iam Pexx Esq". 1702 June 23^ I>etter to M"" Si;, Penn for an Your Letter of the 22'' Instant, with the Ee- Answer to the joynders to Coll Quary's Replyes and the Me- 3 Queries sent morial there inclosed, have been read to the him the ID"" of Lords Commissioners for Trade and Plauta- the last mouth tions ; Who have thereupon commanded me to & desiring an signify to you. That they are yet in Expectation Aceo' of his of your answer to tlie three Queries which I Title to the sent you by their Order the 19'" of the last Soile & Gov' month ; And do also expect, that you do inform of the 3 lower them of your Title to the Soile and Govern- Counties ment of the three ]q\y^- Counties, upon wliich Subject you promised at their Board the 4"" In- stant to give them a final answer ; (They not looking upon what you have exprest in the 8* Article of your first Eejoynder to be any way satisfactory) And that upon receiving your au- swer to the said three Queries, with an Account of your Titles to the three lower Counties, they will be able to discharge their T>nty in making a Eepresentation to her Majesty upon the whole matter. 316 APPENDIX. And Whereas in your foresaid Letter you say that your health, the season of the year and your family affaires do call you out of Town ; They direct me to observe to you that the time of your Attendance h«s been lengthened at your own desire, Their Lordships having assured you that they would Sit de die in diem till your affaires should be wholly dispatched. And they therefore now expect your final Answer to all the particulars here mentioned, in writing, on muuday next or sooner, if you can be ready. I am &c Whitehall June 23^ 1702. W: T: } [/ftc?orsc(/]— P. K. O., B. T. Troprietaries. Vol. 7. L. G. Pennsylvania LuE FPvO M" Penn of y^ 4'^° Dec" 1702, inclosing a Declaeation signed by him eelating to hee jj^TYs 'J'jtle to y^ 3 lowee Covnties. I Dec-^ 8'^ 1702 Read j Enter fo P. 266. L. 6. Hon"° Friends I have sign'd a paper that I hope will please you, and can signe no other without signeing away those de^r bought Countys that 20000ft will not reprize me, as well in Toyle as Gover' I bcgg your favor in my Dispatch, & that I may have three cop- pys sign'd of the Queens approbation, to keep one & send two by scvcrall ways of Conveyance, I am without leggs, but w"" great respect. Your Falthfull friend . to serve you to my power Wm Penn 4. X"' 1702 API'EXDIX. 317 4'" Xber 1702 Copy I do hereby daalare and promise I will take no advantage of the Queens Royall approbation of my Deputy Governor Coll Andrew Hamilton, for one year, to elude or diminish her pre- tentions or Claimc of Right to the Government of the lower Counties ujion Delaware, now under the administration of the said Hamilton in Conjunction Avith the Province of Pennsyl- vania. ' W Penn [Entri/']—!'. R. O. Proprieties. B. T. Vol. 28. p. 267-8. 1702. Decemb' 8"^ Letter to M' Penn in An- swer to his of the 4'" Instant, relating to her Majesties Title to the 3 loM-er Counties. To William Pexn Esq''. SfR Your Letters of the 4* & 7"^ Ins" with the Papers there inclosed, have been laid before the Lords Commissioners for Trade and Planta- tions; And upon Considci-atiou of your Decla- ration relating to her Majesties Right to the three lower Counties upon Delaware River (which was inclosed in the first of your said Lett") Not finding the same so conformable to her Majesties Order in Councill as they conceive it ought to be, Their Lordships have directed me to return it to you, and therewith also to send you (as I do here inclosed) the form of a Declaration prepared by themsclvs in Conform- ity to her INIajesties said Order, which they de- sire you to dispatch accordingly, upon four large Paper : And I am further to assure you that upon the Receipt thereof they will make no delay in what remains to be done by them, in pursuance of her Majesties Aforesaid Order. I am &c. W: J: 318 ArrEXDix. 1702. I under written do by these pres" declare and December 8"" promise, tliat the Queens Eoyal Approbation and allowance of Collonel Andrew Hamilton to be Deputy Governonr of Pennsylvania and the three Lower Counties upon Delaware Kiver, for one Year only, shall not bo construed in any ]\fan' to diminish or set aside hfir Majesties Claim of Right to the said three lower Coun- . ties. In "Witness whereof I hereunto Set my hand and Seal, this Day of December 1702. [Indorsed']— P. R. O. Proprieties, B. T., Vol. 7, L. 43. PeNXSYLY ANIA . M' Penn's Declaration relating to her Ma'^'s Title to y° lower Counties upon her ]\Ia'^'s Ajiprobation of ]\P Jn° Evans as^ Dep''' Gov' of Pennsylvania. Dated IS"" July 1703. Rec* Reac Exd Entr fo p. 352 L. 43. Read }'T"^>'1^'^ 1703. I under written do by these Presents Declare and Promise that the Queens Royal Approbation and Allowance of John Evans Gent" to be Deputy Governor of Pennsylvania and the Three lower Counties upon Delaware River, shal not be con- strued in any manner to diminish or set aside Her Majesty's Claim of Right to the said Three lower Counties. In "Witness whereof I have hereunto set my hand and Seal, This 13 Day of July 1703 Wii Pexx [Seal] APPEXDIX. 319 [Indorsed^— V. R. O., B. T. Proprieties, Vol. 9. Pennsylvania Letter from M"' Penii inclosing his Declaration of licr ]Ma'''' Riglit to the 3 Lower Counties adjoyning to Pennsylvania (For the Lords Com for Trade & Plantations at "Whitehall) 5'°f l2Julyl708. p ,- Kead j ■' P. 4o. Exd Eut'^ fo: G4: F 2" f (Jul) 1708 Honorable Friends I have Submitted to w' you are pleased to say you could not help, & that time & other Circumstauces will not allow me to sett that matter of the Queens Right to the Lower Countys in a better explanation, the scruple being only about Right of Gov- erm' & that my Recompense from these y' had the advantage of the Commission of Trade, that Avas my proposall for a better and more Impartiall as well as expeditious & honorable way of Superintending the Great Provinces of Trade art thereof and there to distrain and the Dis- tresses to detain untill payment of the said Moiety and Arrearcs thereof together with all Costs and Damages for the same And by the same Indenture the said John Moll and Ephraim ITar- man or either of them were appointed in like manner Attorney . or Attornies to deliver Seizin of the last bargained premisses to the said "William Pcnn and his heires Both M-hich said Indent- ures were Entered in (he Office of Records for the Pi'ovince of New York on the 21" Nov' 1G82 within which said Grants the said three Lower Counties are contained but the Covenant to account extends only to what is included in the last recited Grant. That by an Order by the Comander in Chief and Council of New York dated at New York 21 Nov' 1682 reciting the said two recited Indentures And reciting that the said Comander and Council were fully satisfied of the said William Penn's Right to the possession and Enjoyment of the premises had therefore thought fit and necessary to siguifie and declare the same to the several justices of the Peace Magistrates and other Officers at New Castle S' Jones Deale als Whore Kill at l)ela- ware or within any of the Bounds and Limits above menconed to prevent any Doubt or trouble that might arise and after having thanked the said Magistrates for their good services in their several Offices & Stations during the time they remained under his said late Royal Highncss's Government they declare they expected no further Account than that they should readily ru 9?fi