i, I ■«.;.■. The Boundary Stone at Oxford, Chester County. 'r/ S3 Printed under direction of WILLIAM FRANCIS HARRITY. S e ere tary of the C omm o nwe alth , Edited hy Wm.H.EGLE,M.D. roi. xvt. HARRISUURG: E.I£.3Ieyei_"s , State Printer. 1890. \w oy\ The Breviate: BOUNDABT DISPUTE BETWEEN PENNSYLVANIA AND MARYLAND. HARRISBUKG : EDWLN K. .MEYERS, STATE PRINTER. .'891. INDEX, The Copy of Lord Baltimore's own Plan, annext to the Articles of Agreement, Our Map of the Places in Question, proved in the Cause by four Surveyors ; some of which are of other Provinces. Brief of our Bill begins, ...:.... fo. 1 The Relief prayed, fo. SI A State of the Interlocutory Proceedings between the Bill and An- swer, fo. 83 The Defendant's Answer begins, fo. 83 The Schedule annexed to the Defendant's Answer, containing his Commissioners Account of the Proceedings before them, and the Papers which were exchanged (in a regular Order of Time), from the 6th of October, 1732, to the 24th of November, 1733, . . . fo. 165 A State of several Proceedings in the Cause, from the Time of putting in the Answer to the Time of passing Publication, fo. 216 Written Evidence proved in the Cause by the Plaintiffs, from Re- cords, Ancient History, &c, in a regular Course of Time, fro m 1584 to 1742, divided into 17 Chapters or periods, . ■' f°- 217 Chap. 1st. From the Discovery of North- A.merica to the Grant, made by the Crown of Maryland, to Lord Baltimore in the year 1632, fo. 217 Chap. 2d. From the Lord Baltimore's Grant, 1632, to the End of the Year 1663, during all which time the Dutch and Swedes re- mained in the quiet Possession of what is now New-York ; and also Delaware, which now makes the Three Lower Counties ; free from any Claim by the Lord Baltimore, or by the English Crown, fo. 227 Chap. 3d. From the latter End of the Year 1663 (when King Charles granted New- York, &c., to the Duke of York, and the Dutch were, consequently, dispossessed of their great and small Settlements) down to the Year 1673, during all which time the Duke of York possessed and governed New-York in the Lower Counties also, fo. 245 Chap. 4th. Of the Dutch regaining Possession (for a few Months) of New-York and Delaware also, ... . fo. 280 Chap. 5th. From the New Grant, made by King Charles the Second to the Duke of York, in June 1674, down to the Time of granting (v) vi INDEX. Pensilvania, and the Lower Counties to Mr. Penn, and. his being in full possession of all the same, at tbe end ot the Year 1682. fo. 283 Chap, 6th. What past in America, in the Years 1683, 1684 and 1685 (exclusive of what past in England during those Years.) . . fo. 381 Chap. 7th. What past (in England) in the Years 1683, 1684 and 1685 : being the first Contest or Suit between Lord Baltimore and Mr. Penn, fo. 390 Chap. 8th. From the first Determination of the King in Council on the 13th of November 1685, down to the second Determination in the Plaintiff's favour, in the Year 1708, fo. 408 Chap. 9th. From the Second Determination in their favour, in January 1708, to the third Determination in their favour, on 23d . June 1709, fo.428 Chap. 10th. From June 1709 to the time of the Death of Mr. Penn the Patentee, in 1718, fo. 430 Chap. 11th. From the Death of William Penn the Proprietary in 1718, to the Death of Mrs. Hannah Penn his Widow and Execu- trix in 1726, fo. 439 Chap. 12th. From the Death of Mrs. Hannah Penn in December 1726, down to the time of beginning the Treaty with Lord Balti- timore, for the Agreement now in Question, fo. 443 Chap. 13th. From the Beginning of the Treaty, to the Time of ex- ecuting the Articles of Agreement in Question and the Commis- sions for running the Lines pursuant to the same, fo. 444 Chap. 14th. From the Time of sealing the Articles, here in Lon- don, in May 1732, down to the End of the Year 1733, fo. 461 Chap, 15th. From Christmas 1733, to the time of filing the present Bill, in June 1735, • fo. 483 Chap. 16th. Matters which have past since the filing of our present Bill, fo. 496 Chap. 17. Containing a Case stated to, and the Opinions of Sir Clement Wearg, Mr. (now Lord Chief Justice) Willes, and Sir Philip Yorke"(now Lord Chancellor) thereon, relating to the Construction of Lord Baltimore's Charter and his bounds, . . fo. 504 Depositions of Witnesses for the Plaintiffs, with some Observations thereon, digested wilder the following 29 Branches, viz., . . . fo. 508 1st. Branch. Of the first Discovery of the Peninsula, and the first Maps published thereof (before the year 1632), and how many several Editions of Captain Smith's Book had been published before that Year, fo. 509 Sd Branch. To prove my Lord Baltimore's own printed Book and Map, and Description of Maryland, and how far he then claimed ; published in the Year 1635, within three Years after the Date of his Charter, and soon after he had landed in, taken possession of, and settled, his Province of Maryland, fo. 512 Sd Branch. Containing the strongest Proof that there never was any real Order of Council of 4th of April 1638, about William INDEX. vii Clayborne and the Isle of Kent ; but that such Order was made or invented by Lord Baltimore, in 1685, fo. 517 4th Branch. That the Swedes, the Dutch, and the Duke of York, successively, held the Lands now called the three Lower Counties under the names of New Sweden, new Netherland, South River, Delaware, Sandhook, from the Year 1630 downwards.— That the principal seat of Government was then at New York — And Lord Baltimore's Ancestors never possest. — Also of the Conquest from the Dutch in 1664, fo. 520 5th Branch. Proving where the true Susquehannah Indian Fort formerly stood, which is mentioned in some of the Proceedings in 1680, fo. 522 6th Branch. Proving by whom the Lower Counties were possessed when Mr. Penn first went thither in 1682 ; and also the actual Delivery of Seisin to him then, fo. 525 7th Branch. To prove a Petition from the Inhabitants of the Lower Counties in 1682, to be united to the Province of Pensilvania ; also an Indian Purchase then made, and a Copy of a Demand made upon Mr. Penn, by Colonel Talbot, which was in 1683, . fo. 526 8th Branch. Relating to the Names which the three Lower Coun- ties have been called by, under the Dutch, the Duke of York, and Mr. Penn ; the making them into Counties in 1682 ; and their being called the Territories of Pensilvania, fo, 527 9th Branch. To prove Colonel Talbot's running a Line in 1683, from the mouth of Octorara Creek, by Order of Lord Baltimore, for a Division, called Octorara Line, Colonel Talbot's Line, and Lord Baltimore's Line ; and afterwards building a small Log- house, of a few Logs, within and below that Line for a Fort (which themselves afterwards deserted) ; and that that Line was always regarded by us ; and for more than 40 Years by them also, fo. 529 10th Branch. About the Indian Purchases made by the Dutch, and Swedes, and Mr. Penn ; and of his exercising the Government of tbe Lower Counties from 1682, to 1702, fo. 538 11th Branch. Proving Mr. Penn's constant Possession, as Landlord and Proprietor ever since 1681, and 1682 ; his granting out of the Lands ; appointing great Numbers of Collectors and Receivers of Quit-Rents in all the Lower Counties ; and receiving Quit- Rents, fo. 538 12th Branch. Thatconstant, Annual Assemblies have been held, for the Lower Counties under Mr. Penn, from 1682 ; Courts of Jus- tice always held there, under his authority ; and none of the Inhabitants of those counties ever elected into the Maryland Assembly, ■ fo. 544 13th Branch. To prove the very Acts of Assembly (past in Lord Baltimore's own Province of Maryland) do, from time to time, call the Lower Counties the Territories of Pensilvania, and tax Goods coming from thence, or carried thither, as Goods coming to, or going from, another distinct Province, and that those Laws are, from time to time, inforced and put in Execution, . fo. 547 viii INDEX.' 14th Branch. Some general Proofs of the great Expense Mr. Penn was at, and how much he has impaired his English and Irish Es- tates, to settle this country, fo. 551 15th Branch. That the now Plaintiffs have possest ever since 1726, fo. 554 16th Branch. Of the Number of Persons settled in each of the three Lower Counties, . . . fo. 554 17th Branch. Of the very strange way of granting out Lands by the Maryland Officers, and the Consequences which they inflict on, from the Persons locating such Grants, fo. 555 18th Branch. Of the notorious Situation of Pensilvania, and the Lower Counties, both upon one and the same, West, Side of the River and Bay of Delaware ; and of my Lord's going personally, by Land, from the one to the other of them in 1733 ; which, never- theless, he has been pleased to swear; in his Answer, are sepa- arated by, and Lie on different Sides of, that great Bay and River, fo. 558 19th Branch. Of the Treaties in order to, and the drawing, perus- ing, and settling the Draught of the Agreement, the Map, and Mr. Senex's written Opinion, and the Execution (by the Parties) of the Agreement in question, and of the Commissions for run- ning the Lines pursuant thereto, fo. 560 20th Branch. Of the several Proceedings of the Commissioners in America, Day by Day, in order to have carried the Agreement into Execution, fo. 577 21st Branch. That the Circle, and the Distance of it, were well known at the time of the Agreement ; That Lord Baltimore's own Map had many particular Marks and Lines relating to that very Circle ; That he had above 8 Years before that time, the largest Draught of the Peninsula that had ever been seen, with several East and West Lines markt for Division thereof ; That the Plaintiffs had never been in America, to gain any Knowledge on their Parts ; and also to prove an old Map of the Town of Newcastle, . fo. 632 22il Branch. That the Defendant was not deceived in the Plaintiff's Title, which he very well knew, long before the Agreement, . fo. 640 23d Branch. Of the East and West Bounds of the Peninsula, and where the Bay of Delaware ends, viz. at Bombay's Hook, about 30 Miles below the Town of Newcastle, fo. 641 24th Branch. Proof of our general Map, and where the true Isthmus is ; being formed by the Tide Waters flowing very near, to with- in 4 Miles of each other, in Apoquinomy River, and Bohemia River, fo. 643 25th Branch. Proof where the before-mentioned Isthmus, formed by the flowing Water is ; and also, where another Isthmus, formed by the Navigable Water is, .' . . fo. 647 26th Branch. Proof of several Springs that rise, in the Peninsula, and run, from the same common Head, both ways, into the Bays on each Side of the Peninsula, fo. 650 27th Branch. Proof where Lord Baltimore's oldest Line, which he claimed in 1635, lies, fo. 653 INDEX. ix 28th Branch. Proof where the Octorara Line, run by Lord Balti- more in 1683, lies ; also, where the Line for Temporary Jurisdic- tion (lately run in 1739, by Order of the King in Council) lies, fo. 654 £9th Branch. Containing Proof of many old Maps, Foreign and English (made before the Year 1680) which lay down both Cape Cornelius and Cape Hinlopen, and in the same manner as the Map in question did ; also, where our Cape Hinlopen really lies ; That the whole Country thereabouts, was formerly called Hin- lopen, as well as that particular Spot ; That there is the appear- ance of a Cape at our Cape Hinlopen ; That the South Bounds of the Whorekiln District, or Sussex County, extended thither; That the Dutch had a Boundary Tree, in their time, there ; That Mr. Penn granted out Lands to that Place (as soon as ever he had his Feoffments), particularly to the Duke of York, and several oth- ers ; and stiii possesess very near to it ; and that the first cursory Claim of Maryland, a little North of that South Boundary, began but in the Year 1696 ; also an Account, for what Reasons, some- thing like the Name of that old Cape, has, lately been trans- ferred up to the Mouth of Delaware Bay, fo. 656 Depositions of- Witnesses for the Defendant, with some Observa- tions thereon, divided into 46 several Branches or Parts, . . fo. 676 1. As to our Commissioners for running the Linos, which the De- fendant cross-examined, in order to disqualify themselves as interested Persons, fo. 676 2. As to some other of our Witnesses, whom the Defendant also cross-examined as to their Interest, fo. 678 .'!. Proofs upon the Defendant's Enquiry whether Observations had not been taken at Philadelphia, and where the 40th Degree fell, fo. 681 4. The Examination of some persons, Dependants upon the De- fendant, as to their Construction and Opinion of the Extent of his Charter for Maryland, fo. 682 5. To prove the Isle of Kent is very near the Peninsula, . . fo. 690 6. The Defendant clearly proves there was another very an- cient Swedish and Dutch Fort in Newcastle County, fo. 691 7. To prove two Points: 1. That my Lord Baltimore did, about 1673, burn and destroy a Place, then called the Whorekills, now called Lewes Town. 2. The Place where those Whore- kills were ; and that, for a two-fold Purpose, viz. in Order to affect our Cape Cornelius, as well as to shew what he did to assert his Right in the three Lower Counties, . . . • . . . . fo. 691 S. A. Memorandum as to 8 of the Defendant's Witnesses, there named, who were never at all examined by us, to any Point whatever ; but, in the Defendant's own Examination of them, have proved themselves interested in the Dispute, so that we object to them as being disqualified, and their Names have, as often as they are mentioned, this Mark * before them, . fo. 699 x INDEX. 9. Proof of Exhibits from the Secretary's Office in New York and New Jersey ; also from the Council Books, the Land Office Books, and from two private Books (pretended to have be- longed to Surveyors) in Maryland ; also of the usual Manner of Patenting Lands in Maryland, and granting Warrants for those Lands at large, fo. 700 10. Proofs, on the Defendant's Enquiry, who were the first dis- coverers, who were the first Settlers, and what were the first Names of the three Lower Counties, fo. 704 li. To prove that the New Cape Hinlopen lies opposite to Cape May, . . fo. 705 12. To prove what Settlements were made, and under what Gov- ernment, near and about Philadelphia, before the Year 1680, fo. 707 13. To prove how the Whorekills had been settled, and under whom, fo. 708 14. To prove a Susquehannah Fort, situated a great way North up in the Country about the River Susquehannah, fo. 709 In. To prove a Release for 500 Acres from William Penn to William Standley, and the Frame of Government in Pensilvania, and the tisual Conditions of granting out Lands there at first, fo. 712 16. That the Town of Newcastle lies very near 20 Miles South of Philadelphia, fo. 713 17. That no other Line has heen run from Newcastle, than one to mark Part of a Circle of 12 Miles Radius from the Town of Newcastle, and separate the County of New Castle from Ches- ter county in Pensilvania : That several Parcels of Land, lying South of the Parallel of the most Northern Part of Ihe said Circle, are held under the Plaintiffs, and what Number of Persons there settled, fo. 714 18. One single Witness to prove an Isthmus, somewhere or other, at the Spring Heads, fo. 714 19. The Proof, upon the Defendants Enquiry, whether the Mouth of Christiana Creek or River lay to the South, or to the North, of the Line lately run by Order of the King in Council, . . . fo. 716 20. An Attempt to prove where some Places called Kingsess, Mill Creek, Charges Creek or Westerbock lay, fo. 716 21. To prove that a Tree called [some Lord's bounded Tree] at Marcus Hook on Delaware was spoke of 40 Years ago, . . fo. 717 22. To prove that my Lord's Ancestor, in 1682, went up Delaware to Chester, in Order to make an Observation, and how he was received there by the People ; and that in going back, at Marcus Hook, &c, he forewarned a few Inhabitants from paying any more Quit Rent to Mr. Penn, fo. 717 23. To prove that, about 1682, Plaintiffs Father landed at Newcastle Town, and afterwards went to Chester, and had an Observa- tion taken, in order to found his City of Philadelphia, but was told he Avas within the Maryland Boundaries, . ... . . . fo. 719 INDEX. xi 24. To prove an East and West Line run by Lord Baltimore's An- cestor, being the Octorara Line, fo. 721 25. To prove a Fort at Christiana, fo. 722 26. An unsuccessful Attempt, to prove that Lord Baltimore had exercised the Government, and had received Quit Rents, in the Lower Counties, fo. 72t> 27. To prove, directly contrary to the Answer, That the Province of Pensilvania is not contiguous to New Jersey, but is con- tiguous to the Lower Counties ; and that Pensilvania and the lower Counties are on the same, West, Side of tlie Bay of Delaware, and not on the East Side of the said Bay and River, fo. 728 28. An Attempt to prove a very few Instances of Settlements of Lands, in the Lower Counties, under Maryland Rights, . fo. 730 29. Proofs upon the Defendant's Enquiry where, and in what Province, four or five particular Gentlemen lived, and who they held their Lands under? fo. 739 30. To prove the Number of Inhabitants in the three Lower Counties, fo. 740 31. To prove the payment of Quit Rents in the Lower Counties, . fo. 742 32. To prove the appointing a Governor, for the three Lower Counties, always by Mr. Penn and his Family, fo. 745 33. To prove how many Ports and Harbours there are, on both Sides in going up Delaware Bay, fo. 747 34. To prove the actual Payment of Duties on Goods imported into Maryland from the Lower Counties, fo. 748 35. An Attempt to find out two lost Colonies in Maryland, (Dur- ham and Worcester) which no Soul ever heard the Names of, fo. 749 36. An Attempt to prove a Fort on Susquehannah River lately kept by one Cressap, fo. 749 37 To prove the Agreement, and the Treaty in order thereto, and the Defendant's great Ignorance of his Province, fo. 749 38. To prove what passed, during the Time the Commissioners met in order to have excuteel the Articles, fo. 767 39. To prove the Copy, only, of a Question and two Surveyors An- swer, about the Dimensions of the Circle, fo. 771 40. To prove the Extent of Newcastle Town, fo. 772 41. To prove that the first Time the Defendant had any Account of the Proceedings of the Commissioners for settling the Boundaries pursuant to the Agreement, was after his Arrival in Maryland, fo. 773 42. To prove there are Ferries over Susquehannah River, fo. 774 43. To prove a short Account of the Commissioners Proceedings, fo. 774 44. To prove the Defendant's Application for a Grant of the Lower Counties in August 1734, fo. 775 45. To prove Exhibits in England, fo. 777 46. To prove Deceit put upon the Defendant by his own Map, (as most falsely pretended), fo. 778 • 1 ^=T U lllap of parti of tfu jP?vvmccJ of -Paifyhama and Tflarulanl nnth the Counticn/7/,, ,„,„ f, M,., ?_ JT1 ,■.,,. „. Rift ^ °B M - -.^UJ'S*' 3 '" J ER S EY r to ZcrJ. Ji.Jttmnl' 7ILf An-cf ,w CVft« Town MARY Annapolis land. \Sx™" J ' uY_ijifar Vma£ £ J^h VIRGINIA b fe/v Cornelius —* S J7 5 SxJ- r/,.y>. | J)mw7ltfZfami .•flAel.m.fc fir,, .•„J r 'X;,a,..,H, e i'7„./,j>l~Ju,,rw„ C , %:,,„ JJtnbpeii 2J B l d a de1 f U a .20 ik 0ct r t 14 O Jjct Wim Mn7cnn,^,n M '?en,,k&cLzrl&^ Tn-Owiic ns, and moving, presently, to adjourn (did agree to adjourn, but the Night was so far spent in Debate, that a Minute of Adjournment could not, that Night, be settled. BOUNDARY QUESTION. 61 But, upon the next Day, being the 9th Day of the Month of May 1733, the Commissioners, on both sides, met, and a Minute of Adjournment was agreed to, for meeting at Philadelphia on the 21st of May then Instant ; under a Proviso, that if the Maryland Commissioners could not return from Burlington, so as to meet on that Day, then, the next meeting was to be at Philadelphia, but upon such other Day (before the Maryland Commissioners return into Maryland) as the Maryland Commissioners should appoint ; and under another Proviso, that the Maryland Com- missioners should not be stayed, above one Day, from return- ing home; and that the next Adjournment should be, into New- castle County, for the 18th Day of June then following. Which Adjournment was requested by, and agreed to for the Convenience of, the said Maryland Commissioners, and them only. But the said Maryland Commissioners, not returning so soon from Burlington as the 21st of the said May, sent to the Plain- tiffs Commissioners a Notice, of the 25th of the said May, to meet them, the then next Day, at Philadelphia. And, accordingly, on the 26th of May 1733, the Commission- ers, on both sides, met, at Philadelphia, and, then, the Mary- land Commissioners pretended, that their Proprietor intended to return very soon to England, and that some of his Commis- sioners were to attend him to Virginia, and, therefore, that the next Adjournment, which was to have been for the 18th of June, would be extremely Inconvenient, to them ; whereupon so candid were the Plaintiffs Commissioners through the whole Proceed- ing, that they agreed to adjourn to the 3d of September then next, and a Minute of Adjournment was made, to meet then at Newcastle. That, in the Morning of the 3d of September 1733, Quorums of the said Commissioners, on each side, met at Newcastle, and the Plaintiffs Commissioners proposed to proceed, but the said Maryland Commissioners desired that what was proposed should be reduced into Writing, and then adjourned till the Afternoon. And the Commissioners, on both sides, met again in the After- noon of the same Day, when the Plaintiffs Commissioners de- livered to those for Maryland, a Paper, in Writing, acquaint- ing 1 them that they the Plaintiffs Commissioners were ready with their Artists to proceed, immediately, to run out the Cir- cle mentioned in the said Charter and Deed, at the distance of 12 Miles from Newcastle ; and mentioned in the said Paper that, as a great part of the time appointed for executing the said Articles was then elapsed without any Progress made, therefore, the Plaintiffs Commissioners earnestly desired and prest the Commissioners of Maryland to join with them in the said Work> 62 PENNSYLVANIA AND MARYLAND that no more time might be lost; and, then, the said Commis- sioners adjourned till next Day. v And, upon the 4th of September 1733, the Commissioners, on both sides, met again, and the said Maryland Commissioners delivered to the Plaintiffs Commissioners a Paper, in Writing, again insisting that the Circle, to be run, was (as they said they were informed and convinced by Mathematicians) no other than a Circle whose Circumference or Periphery was 12 Miles, and whose Diameter was somewhat less than four Miles, and, that Circle, the said Maryland Commissioners did thereby declare themselves ready to proceed to run and mark out. Whereupon the Plaintiffs Commissioners desired to see that Opinion of Mathematicians, which the said Maryland Commis- sioners pretended to be so convinced by, and had a short Query and Answer delivered to them, with the Names of Hugh Jones and William Ramsey, thereunder, upon the Words of the said Deed of Feoffment only, that they understood the Term Circle, in the said Feoffment, to mean a Circumference or Area, and, as there exprest, to be limited to a Circumference or Periphery, there called Compass about, the Diameter of which Circle, or Compass about, was (as they apprehended) somewhat less than four Miles; which the Plaintiffs charge was not a fair Question put to the said two Persons, neither were they indifferent Per- sons, but Dependants on the Defendant, and the Plaintiffs Commissioners made some verbal Remarks thereon, and, then, the Commissioners adjourned till the Aftei*noon. And, in the Afternoon of the same 4th of September 1733, the Commissioners being again met, the Plaintiffs Commissioners delivered, to those for Maryland, a written Paper, containing their Reasons why this Question did not fall under the Cog- nizance of Mathematicians, as such, and, then, the Commis- sioners adjourned till next Morning. And, upon the 5tb of September 1733 in the Morning, the Commissioners being again met, those for Maryland returned their Answer, in Writing that they were not satisfied with the Reasons offered by the Plaintiffs Commissioners, but insisted on their own former Opinion as to the Circle, and, then, the Commissioners adjourned till the Afternoon. At which time they met, and, after further Discourse, ad- journed to the next Morning.. And, upon the 6th of September 1733, the Commissioners on both sides met again, at which time the Plaintiffs Commissioners delivered a signed written Paper, insisting on the Circle as they had before insisted, and requested the Maryland Commissioners either to join in running such a Circle, or directly to declare they would not. BOUNDARY QUESTION. 63 And the Maryland Commissioners delivered a Question in Writing, to the Plaintiffs Commissioners, desiring to know whether they would not consent to run out any Circle, but one whose Radius was 12 Miles? And the Commissioners separated, for a short time, and then met again, the Maryland Commissioners delivered to the Plain- tiffs Commissioners a written Answer, that they would not agree or join to run or mark out a Circle at the distance of 12 English Statute Miles from the Town of Newcastle. • And the Plaintiffs Commissioners, on their Parts, delivered in their Answer in Writing, that they could not agree to run any other than a Circle at the distance of 12 Miles from Newcastle. And then, the Commissioners for Maryland proposed an Ad- journment, the Minute for which was to be brought in by each side at their Meeting that Afternoon. And, accordingly, the Commissioners on both sides did meet that same Afternoon, and after much Debate, a Minute of Ad- journment, to meet at Newcastle on the 14th of November then next, was signed. That the Commissioners on both sides, or sufficient Quorums of them, did meet, at Newcastle, on the said 14th of November 1733, and on the 15 ch and 16th of the same Month, and con- tinued to meet, debate and adjourn during those three last men- tioned Days and the Commissioners on each side appearing fixed in their former Sentiments, respectively, the Commissioners for, Maryland, thereupon, frequently declared, that, as the Plain- tiffs Commissioners would not join with them in running the Circle they contended for, it was to no purpose to continue any longer together, and therefore proposed that the Commissioners should depart, without Adjournment. But the Plaintiffs Commissioners refused to agree thereto. And, then, the Commissioners for Maryland delivered a Writ- ing, whereby they proposed and offered to the Plaintiffs Commis- sioners to proceed to Cape Hinlopen, in order to proceed in fixing the Cape, and running the East and West Line directed by the third Article of the Agreement to be run from thence, and, then, adjourned to the next Day. And, on the 17th of November 1733, the Commissioners on both sides met again, and the Plaintiffs Commissioners delivered to those for Maryland a written Paper, recapitulating many parts of the Conduct and Behaviour of the said Maryland Commis- sioners from the first meeting, and giving the Reasons why the Plaintiffs Commissioners could not proceed to other Business and Lines (which were to be directed and governed by the Cir- cle) until the Circle it self was fixed as directed in the said 64 PENNSYLVANIA AND MARYLAND Articles; and, then, the Commissioners adjourned till the 19th of November. And, on the 19th of November 1783, the Commissioners met again on both sides, and the said Maryland Commissioners de- livered a long Answer, in writing, tending to excuse, or palliate, their Conduct and Behaviour, and with Remarks that no Min- utes, taken, mentioned many Facts which had really past, and which the Plaintiffs Commissioners had insisted on in their last Paper (whereas that was one of the Complaints made by the Plaintiffs Commissioners, that those for Maryland had refused to let any Clerk, or even two Commissioners, one on each side, take Minutes) and concluded the same with an express Declaration that, in their Opinion, no other Consequence could arise from the Differences in Judgment between them, and the Plaintiffs Commissioners, and the Plaintiffs Commissioners refusal to pro- ceed to Capt Hinlopen, than that, either the said Commission- ers should continue at Newcastle until the 25th of December 1733, without running the Circle, or, depart from Newcastle without further Adjournment; the which they left to tiie Con- sideration of the Plaintiffs Commissioners, and, then, the Com- missioners adjourned till the next Day. And, on the 20th of November 1733, the Commissioners on both sides met again, and adjourned to the next Day after. And, on the 21st of November 1733, the Commissioners on both sides again met, and the Plaintiffs Commissioners delivered to those for Maryland, a written Paper of Observations and Arguments upon many parts of the Proceedings and Papers, and the Commissioners adjourned to the next Day. And, on the 22d of November 1733, the Commissioners met on both sides again, and those for Maryland delivered to the Plain- tiffs Commissioners another long Paper, and the Commissioners adjourned till the next Day. And, on the 23d of November 1733, the Commissioners on both sides met again, and the Plaintiffs Commissioners delivered to those for Maryland the Answer, to the last Paper, and then, the Commissioners for Maryland proposed that, since the Commis- sioners had continued so long together in exchanging of Papers, to no manner of purpose, being still as far from agreeing as ever, they should then depart. Whereupon, it was agreed that a Minute should, by mutual consent, be prepared against the next Day, to which time the Commissioners adjourned. And, upon the 24th of November 1733, the Commissioners met for the last time, and signed a Minute; which recited the said Articles of Agreement, and the Original Commission granted by the Defendant to his Commissioners, and the Original Com- BOUNDARY QUESTION. 65 mission granted by the Plaintiffs to their Commissioners, and reciting the Meeting between the Commissioners on the 6th of October 1732 and other subsequent Meetings ; and reciting several subsequent Appointments of some particular Commissioners for Maryland, in Place of others who were sick or dead or could not attend; and that since the Meetings at Newcastle, divers Ap- pointments and Adjournments had been made, and sundry Pro. positions and Debates at their several Meetings had passed, and that five Commissioners on each side had met at Newcastle on the 14th of November then Instant, where, resuming their former Debates, and making divers Propositions to each other from the said 14th to that present 24th of November, each side con- tinued to persist in their former Opinion, that is (as is expressed in the said Minute) the Commissioners on the part of Pensilvania insisted, as they always had done, in running and marking out a Circle (or so much thereof as should be requisite) at the dis- tance of 12 English Statute Miles from the Town of Newcastle, as in the second Article of Agreement is directed, as the only Circle they conceived themselves impowered to run; and that the Commissioners for Maryland, on their part, insisted, as at former Meetings they had done, upon running a Circle (or so much thereof as should be requisite) whose Periphery or Cir- cumstances is 12 Miles only, or whose Diameter is somewhat less than 4 Miles, as the only Circle meant in the Deed of Bar- gain and Sale and Deed of Feoffment for Newcastle, and as the only Circle intended by the Proprietors in the said Articles; which Circle the Commissioners of Maryland conceived them- selves only impowered to run ; and that, under that difference of Judgment, the Commissioners of Pensilvania having refused to proceed to Cape Hinlopen, in order to fix the Cape and run the East and West Line, because, they said, for the Reasons by them assigned, it could be to no manner of purpose. The Com- missioners of Maryland were of Opinion that, no other Conse- quence would arise, than, either that the Commissioners should continue at Newcastle, until the said 25th of December next, without running the said Circle about Newcastle; or, depart from Newcastle without further adjournment; and, as the last 11 Days, since the 14th then Instant inclusive, had passed in Debates that had not in the least tended to any nearer Agree- ment between the Commissioners, and the time limited for exe- cuting the said Articles was then so near expiring that, even with the utmost Industry and Application, it would, scarce, by any means, be found practicable to run and mark out and fix all the several Lines in the Articles agreed and required to be done. Therefore upon the whole, the Commissioners, on 5— Vol. XV. 66 PENNSYLVANIA AND MARYLAND both sides, under those Circumstances, did thereby agree that it could not answer any of the Purposes intended by the said Articles to continue longer together, and that they, therefore. thought ( it proper to depart, without further adjournment, and leave the Conduct of the Commissioners, on both sides, and their Endeavours, used towards the execution of the said Arti- cles of Agreement, t the Justice and Wisdom of their Super- iors. As by the said parting Minute, which is dated the 24th of the said Month of November 1733, and the said other Papers, Pro- posals and Writings, interchanged between the said Commis- sioners, had the Plaintiffs the same to produce, relation being thereunto had respectively, might and would more fully and at large appear. And thus, as the Plaintiffs Charge, the Meetings, between the Commissioners on both sides, were put an end to, and there- by the Circle, Lines and Bound-marks were not run, markt, or laid out by the 25th of December 1733, within the time cove- nanted and agreed by the said recited Articles for the doing thereof, nor are yet run and markt out. But the Plaintiffs expressly charge and insist, that the not running and marking out the said Lines, within the time afore- said, was in no sort occasioned by the Non-attendance of the Plaintiffs Commissioners from time to time pursuant to the Ad- journments made, or, from any Default whatever on the part of the Plaintiffs, or of their Commissioners, but purely and simply from a difference in Opinion between the Commissioners on each side (as those for Maryland pretended) namely, whether the Commissioners were to mark out the Circle at 12 Miles dis- tance from Newcastle (as the Articles and the Commissions most plainly, positively and expressly mentioned they were) or, at less than two Miles distant therefrom? But, notwithstanding such difference, or pretended difference, in Opinion, the Said Articles of the 10th of May 1732 did, and do now, subsist in full Force and Vertue. And the Plaintiffs further charge that the said pretended difference of Opinion of the Maryland Commissioners, from that of the Plaintiffs Commissioners, was nothing but a meer Pretence and Artifice, purely to avoid executing the Agreement ; and which Endeavour to that end had been before proposed, directed and consented to, by the Defendant himself, as a means to spin out the time mentioned in his Agreement, and avoid complying with his own Proposal, and solemn and deliberate Agreement aforesaid. And the Plaintiffs Charge that the first News which arrived in Great Britain after Christmas 1733 of the expiration of the BOUNDARY QUESTION. 67 time, mentioned in the Articles for running the Lines, being expired without their having been run, having arrived in May 1734, the Plaintiffs John and Richard Penn, both in Great Britain, did receive, at the same time, many Accounts of the great dissatisfaction, troubles and uneasiness which the expira- tion of the said time without the Lines having been run had given to their Tenants and Occupiers of Land there, and who re- fused to pay to the Plaintiffs even those very small Quit-Rents which had been reserved upon the Grants in Fee made by the Plaintiffs and their late Father to such Tenants and Occupiers ; in so much, that for the quieting the Minds of the People in the said three Lower Counties, as well as for preserving the Plaintiffs Right to the Premisses, the Plaintiff John Penn, the eldest Brother, at very great Inconvenience, was also obliged to go from Great Britain to Pensilvania, and did go on Board a Ship on such intended Voyage upon the 9th of July 1734, and, some time after, arrived there. And, after such the Plaintiff John Penn's departure, the only one of the Plaintiffs who then was, or yet is, in Great Britain, was the Plaintiff Richard Penn, the youngest of the three Broth- ers, who was but lately come of age, and had no Knowledge of these old and intricate Disputes and Transactions. And the Defendant did know, and hear, both of the Plaintiff John Penn's said departure for Pensilvania, and also that the Plaintiff Thomas Penn was, and for about two Years before had constantly been, in Pensilvania. And, thereupon, he the Defendant did as the Plaintiffs have since discovered, upon the 8th of August 1734 (which was with- in less than a Month after the Plaintiffs John Penn's said de- parture) present, or cause to be presented, a Petition, to his present most Excellent Majesty in the Name of the said De- fendant, stating the Charter for Maryland in such manner as he thought proper, and alledging that some Matters appeared by an Order in Council of the 4th of April 1638, relating to one William Clabourne and the Isle of Kent (although there is no such Order) and stating some part, and a part only, of the said Report and Order made in the Year 1685, but, leaving out the most essential and material Parts thereof, in the very middle and heart of the same, and particularly those Words whereby it was declared that the said three Lower Counties had, ever since the Charter for Maryland, been possessed by Christians down to that Year 1685, and had continued as a distinct Colony from Maryland; and stating that if, at the time of the Charter for Maryland, any part of the Tract of Land, mentioned in the said Report, was inhabited by Christians, yet, that they were not Subjects of the Crown of England, but Swedes and Dutch- 68 PENNSYLVANIA AND MARYLAND men. or other Subjects of Foreign Nations ; and, therefore, as the said Charles Lord Baltimore suggested, (though most untruely) by his said Petition, that the whole of that part of the said Peninsula was plainly described within the Limits of the said Grant of Maryland, so that he conceived the same was intended to pass, and did pass, by that Charter, he by his said Petition, besought his Majesty, by a further Charter or Letters Patent, to confirm to the Defendant his Heirs and Assigns the whole of such part of the said Peninsula as was contained within the Limits of the said Maryland Charter, notwithstanding the said words of Hactenus inculta in the Recital thereof inserted. And the Plaintiffs Charge that the Defendant by his said Pe- tition omitted to name the Plaintiffs therein, or their Father, or the said Province of Pensilvania, or the said three Lower Counties of Newcastle, Kent and Sussex, nor took any Notice of his own solemn Agreement of the 10th of May 1732, and con- cealed the whole of his said Agreement, whereby, for such valu- able Considerations, he had released to the Plaintiffs in Fee the said three Lower Counties by express name, and all his Right, and all his Pretences thereto, and had covenanted to make further Assurance of the same and had covenanted, by all means in his Power to support the Interest of the Plaintiffs in and to the same by Vei-tue of and under the said Agreement, and also concealed every Tittle of the Plaintiffs and their Mother and Father, and the Duke of York's Title, and very long and ancient Possession of the said three Lower Counties quite from the Year 1664, and the very great Improvements which have, at so great an Expence, been since made thereon, purely to obtain, from his Majesty to himself, a Grant or Confirmation of the said three Lower Counties, and to turn the Plaintiffs out of their ancient Possession and Improvements and undoubted Right, which the Defendant did and doth well know and believe his Majesty, upon a fair full and true Representation of the whole Case, was too good and just to do, — although, from any Flaw in the Plaintiffs Title it might legally have been done ; which the Plaintiffs humbly insist it could not; and the Crown has never yet disturbed the Possession of any one Subject whatever, in America, who has been at any Trouble or Expence in settling there and cultivating: the Country, though many of them, there, have Titles which possibly might not bear an exact and strict Examination. And the Plaintiffs Charge that, upon presenting the said last mentioned Petition to his Majesty, his Majesty by his Order in Council of the 8th Day of August 1784, was pleased to refer the same to the Lords Commissioners for Trade and Plantations, to examine and consider the Matters and Facts contained in BOUNDARY QUESTION. 69 the said Petition, and report the same together with their Opin- ion to his Majesty in Council. And the Defendant never gave any the least Notice of such his said Petition to his Majesty, or of his Majesty's said Refer- ence thereof to the said Lords Commissioners of Trade and Plantations, unto the Plaintiffs, or unto any one of them, or unto any Person whatever in their behalf. But an Agent, who had formerly been concerned in some of the Plaintiffs Affairs, received Notice thereof, not from the De- fendant or any Agent of his, but from the said Lords Commis- sioners of Trade and Plantations, who, accidentally, in the Course of the Business in their Office, knew that the Plaintiffs, and their Father, had, very long, been in Possession of the said three Lower Counties, and had named Lieutenant or Deputy- Governors for the same without Intermission. And the Plaintiffs charge that, thereupon, Application was made to the said Lords Commissioners for Trade and Planta- tions, in the Presence of the Defendant, in the behalf of the Plaintiffs John and Thomas Penn, then and still in America, and of the Plaintiff Richard Penn, then in Great Britain, but in the Country, to know, what it was that the Defendant, under such general Petition, pray for, and to have reasonable time to apprize all the Plaintiffs thereof in order to make their Defence ; in answer whereto, the said Defendant himself, iu express Terms, did declare, in the hearing of several Persons, to the said Lords Commissioners for Trade and Plantations, that he then peti- tioned for a Grant of the said three Lower Counties, or to the same Effect and Purpose. And the said Defendant did press and insist that time might not be given for Notice to the Plaintiffs in America (who, only, knew any thing, and they but little, of the before mentioned old Transactions) but that the Matters of his said Petition might be heard forthwith. And the said Lords Commissioners for Trade and Plantations, not conceiving it Decent to let his Majesty's said Reference to them lay so long unexamined as till the Plaintiffs might have Notice in America, and an Opportunity of being heard there- after, did appoint a Day for hearing the same, and did hear the same on the 20th and 31st Days of December 1734, but those Hearings on one side only, without hearing the Plaintiffs or any Person whatsoever on their behalf upon the Merits of the said Petition. At which, and other times, the Defendant, and his Agents by and with his Knowledge, Privity, Consent and Direction, and in his own Presence, taking Advantage of the Plaintiffs Absence, offered to the said Lords Commissioners the said blank Paper, 70 PENNSYLVANIA AND MARYLAND not purporting to be ever authenticated any way whatever, or to be signed by any Person, and which had been so before offered by his grandfather in 1684, as a Copy of some Report or Order in Council of the 4th of April 1638 of the then Com- mittee for Trade and Foreign Plantations; although the Plain- tiffs charge there was no such Real Report or Order in Counci 1 of the 4th of April 1638 to be found, and that his the said Lord Baltimore's said Grandfather, in 1684 and 1685, had, in Person, acknowledged that there was no Original thereof, even then, to be found. But the Plaintiffs at such Hearings on the 20th and 31st of December last, not being heard to Object to the said Paper, nor any Agent authorized by the Plaintiffs then attending the said Lords Commissioners of Trade and Plantations, and their Lordships not knowing of any Objections that might be made to the said Paper, took it to be a Real Paper. And upon the 16th of January 1734, made a Report to his Maj- esty in Council, upon the Petition of the Defendant, founded chiefly, if not entirely, on the said Paper of the 4th of April 1638. And the said Lords Commissioners, in the said Report, have only stated so much of the Determination made in 1685 as the Defendant had set forth in his said Petition. By which Proceedings, herein before stated, of the Defend- ant and his Commissioners, and Agents, both in America and Great Britain, the Plaintiffs are greatly injured. But the Plaintiffs Charge that the said Report of the 16th of January 1734 having been referred, by his Majesty's Order in Council, to the Right Honourable the Lords of the Committee of his Majesty's Most Honourable Privy Council for Plantation Affairs, their Lordships, on the 10th of May 1735, heard Council for the Plaintiffs thereupon, and their Lordships, afterwards, made a Report to his Majesty in Council. Whereupon, by Order in Council, of the 16th Day of May 1735 (made upon reading the said last mentioned Report) his Majesty was graciously pleased to Order that the Consideration of the said Report of the Lords Commissioners for Trade and Plantations of the 16th of January 1734, and of two Petitions, presented in the behalf of the Plaintiffs, and of the Possessors and Owners of Lands in the said three lower Counties, should all be adjourned, unto the End of Michaelmas Term then and now next, that the Plaintiffs might have an Opportunity to proceed, in a Court of Equity, to obtain Relief upon the said Articles of Agreement as they should be advised ; and that, after the Expiration of the said Term, either Party should be at liberty to apply to the said Committee of Council as the BOUNDARY QUESTION. 71 Nature of the Case might require ; as by the said last mentioned Petitions, Orders and Reports, relation being: unto them sever" ally and respectively had, may more fully and at large appear. All which Actings, Doing's, Misrepresentations and other Prac- tices and Proceedings of the Defendant, and of his Confederates, and of his Commissioners and Agents, both in America and Great Britain, are contrary to Equity and good Conscience, and tend to the manifest, apparent, and grievous Wrong and Injury of the Plaintiffs, who are utterly Remediless in the Premises by the strict Rules of the Common Law, in regard the Plaintiffs Witnesses, who could prove the truth of all and singular the Premises to be as herein before set forth, are either dead, or in Parts remote, beyond the Seas, and in America, and many of them unknown to the Plaintiffs, but the Plaintiffs are properly relievable in this Honourable Court, where they may have the Personal Oath and Discovery of the Defendant touch- ing the Matters aforesaid, and where Matters of Fraud, Deceit, and specifick Performance of Covenants and Agreements, and Matters of perpetual Injunction, are properly Examinable and Relievable. Therefore, that the Defendant and his Confederates, when discovered, may, upon their several and respective Corporal Oaths, true, full, distinct and perfect Answer make, and that, according to the best of their several and respective Knowledges, Beliefs, and Informations, to all and every one of the Matters, Facts, Charges and Allegations herein before mentioned, as fully and amply as if the same were here again particularly re- peated and interrogated to, and, more particularly, may answer, set forth and discover, according to the best of their several and respective Knowledges, Beliefs and Informations. And may set forth Verbally and Literally, a true Copy of the Words of the said Charter for Maryland, as they are respec- tively written at length or abbreviated in the Original Charter under the Great Seal of England, from the beginning of the said Charter unto the first Habendum therein. And whether the said William Penn did not enter into the peaceable Possession of the said Province of Pensilvania in June 1681? And into the peaceable Possession of every one of the said three lower Counties either in October or November 1682? And who, from the last mentioned tims respectively, have been in the chief Possession and Government of the said Prov- ince of Pensilvania, and of the said three lower Counties? And who it was that peopled, settled, and improved the said Province of Pensilvania and the said three lower Counties? 72 PENNSYLVANIA AND MARYLAND Whether the said William Penn, or any Ancestors of the said Defendant? And, at whose Expence, the same was so peopled, settled, and improved, whether at the sole Expence of the said William Penij, and his Grantees under him, or at the Expence of the Crown, or the Publick, or the Defendant, or any of his Ances- tors? And whether he in his Conscience believes it was a small, or a very great Expence? And whether he really believes it was not at more than 60, _ 0001. Sterling, or at what Sum, as he believes in his Conscience? And whether the said Province of Pensilvania, and the said three lower Counties, do not, at this time, make the most nourishing and populous Province or Colony, for the Age thereof, throughout, all America? And whether -the Number of Inhabitants, in the said three lower Counties only, exclusive of Pensilvania, are not esteemed to be more than 40,000? And whether the Defendant, when he lately came out of the Province of Maryland into the said three lower Gounties, was not surprized to see how much thicker of Inhabitants, and of beautiful Plantations, the said three lower Counties were, than the said Province of Maryland was? And may set forth, at what Place, by Name, and in what De- gree and Minute of Latitude, the most Northern Part of the said Peninsula ends, and the most Southern Part of the Isthmus or Neck of Land begins, and in and through what Places, by Name, the Line of the 40th Degree compleat does run, and how many English Statute Miles there is in Distance, from the most Northern Part of the said Peninsula, to the said Line of the 40th Degree compleat, and which of those two Places lies the most Northwards? And whether there was not such Agreement signed and exe- cuted, between the Defendant and the Plaintiffs late Mother in the said Year 1723. after the Decease of the Plaintiffs Father, as herein before mentioned, or of what other Purport and Effect, and where the same, and each Original Part thereof, now is? And that the Defendant may set forth a true ^opy of the same, at full length, in the very Words, Figures and Abbreviations as the same is in the Original, with the Parties and Witnesses Names thereto, and all the Attestations thereto, and all the Endorsements thereon, in case that before set ioj.-th by the Plaintiffs be not a true Copy thereof? And whether the same Agreement was not published, at full length, in a Proclamation, and when, by the Lieutenant or BOUNDARY QUESTION. 7?. Deputy Governor of Pensilvania, pusuant to one of the Clauses contained in the same Agreement? And whether the same Agreement was, or was not, and if it was, then, when it was, published by Proclamation by the Gov- ernor or Lieutenant, or Deputy Governor of Maryland? And why, by whose Order, the same was published? And whether the Plaintiffs said Mother, or thu Plaintiffs have, from the time of the said Agreement of 17th of February 1723, to this time, ever, and when, how, and at what times par- ticularly, disturbed any, and which of the Inhabitants under the Defendant, or molested them in their Possessions? Or have suffered any and what particular Parcels of Lands to be surveyed, taken up or granted, either in Pensilvania, or in the said three lower Counties, or in any, and which of them, near the Boundaries which had been claimed or pretended to on either side? And whether the Plaintiffs said Mother and the Plaintiffs respectively, did not justly and honestly fulfill and perform the said Agreement of 1723, on their Parts, according to the true intent and meaning of the same, and that, not only during the 18 Months, in the same Agreement mentioned for the Continu- ance thereof, but even after the said 18 Months, until the last Agreement was concluded in May 1732? And whether the Defendant and his Agents, Commissioners and Officers did, or did not, fully and truly, and in all points, perform and fulfil the same, or whether it has not been long, and is not to this time, the usual, common and constant Method, in the said Province of Maryland, to make large Grants to Per- sons of a certain Number of Acres, at large, without specifying in what particular Spot, Parish, Precinct, Division or County the same do, or shall, lie or be situated; and to leave such Grantees at liberty to find out, and set down upon, and appropriate to themselves, under such Maryland Grants at large, so many Acres as therein specified, just in such Places (not before taken up and appropriated) as they can find out, and their own Fancy and Inclination leads them to? And whether many such Maryland Grants are not, now, ex- tant, of very large Quantities of Lands at large as aforesaid, and which have not yet been seated upon or appropriated? And whether the Defendant does not know, and verily believe, and has not been credibly informed, that many such unappro- priated Maryland Grants at large are now in the hands of all, or some, and which, of the Commissioners authorized and ap- pointed on the Part of the Defendant for executing the Agree- ment of 1732, and in the hands of many, and what, other lead- ing and considerable Men in the said Province of Maryland? 74 PENNSYLVANIA AND MARYLAND And whether the Defendant does not know, and verily believe, and has not been credibly informed, by many, or by some, of such Maryland Grantees, and others, and by whom in particular, that such Maryland Grantees, or some, and which of them, did design and intend, by Virtue, of such Maryland Grants, to set down upon and appropriate Lands which would, or which they apprehended would, by the Agreement in 1732, fall within the Plaintiffs Bounds? And whether as the Defendant knows, believes, and has been credibly informed, any Disappointment or expected Disappoint, ment, in appropriating such Lands, was, or was not, any Motive or Inducement, and to whom, to the not compleatly executing the said Agreement of 1732? And whether the Defendant did not, in the Year 1731, ac- knowledge the Plaintiffs Title to the said three lower Counties, and did not apply to them, not to give up to him the said three lower Counties, but to settle the Limits and Bounds of the same, and of the said Provinces of Pensilvania and Maryland? And whether, upon the Plaintiffs not instantly complying with such the Defendant's Request and Application, he did not, thereupon, in order to spur the Plaintiffs on, present, or cause to be presented, such his Petition to his present Majesty, on the 1st of July 1731, or any and what other Petition, and to what Effect? And particularly, whether such last mentioned Petition, and the whole Tenor thereof, did not pray and desire the Bounds might be ascertained and settled upon the foot of the said Orders of Council of 1685 and 1708? And whether the Defendant himself did not, thereby, mean and intend to leave to the Plaintiffs the three lower Counties of Newcastle, Kent, and Sussex? And whether, after the said last mentioned Petition was pre- sented, and such Order thereon made as aforesaid, the Defend- ant did not. in his own Person, apply to some, or one, and which of the Plaintiffs, and to some and what Agent of theirs, or Person concerned for them, and did not, again press and desire that a Treaty might be set on foot for the settling and agreeing the Bounds and ending: all Disputes between the Plaintiffs and him? And whether, from the 11th of June 1731, to the 10th of May 1732, such Treaty and Agreement was not on foot, between him and the Plaintiffs, and many Meetings had between the Plaintiffs and their Agents and the Defendant and his Agents, at many different Places, within that space of time? And whether, at some, and which, of such Meetings, and at what Time and place, the Defendant, on his Part, did not pro. BOUNDARY QUESTION. 75 duee a Map or Plan of the Parts in Question and other adjacent Places, which he himself said and acknowledged his Agents had sent, to him, from America, in order to settle the said Dis^ putes ? And whether the Plaintiffs, on their Part, did not also pro- duce a Map or plan of the Parts in Question? And whether the Map or Plan, so produced by the Defendant was not, by him in Person, at some of the said Meetings, mark'd with a Pencil, in what manner the dividing Lines should run ? And whether the Plaintiffs did not insist that the Head Line of Maryland should be not so little as 15 Miles, but 20, or at least 18, or 17 Miles, South of Philadelphia, which he did not agree to? And whether the Defendant did not insist, and the Plaintiffs agree, that, not the Plaintiffs Map or Plan, but, the said Map or Plan of the Defendant should be engraved, in order to be affixed or annexed to, and to explain the meaning of, the Agree- ment they should come to? And whether the Defendant did not, at the said Meetings op- pose the Person the Plaintiffs proposed to engrave the Defend- ant's Map or Plan, and name and insist that Mr. Senex should do the same? And whether the Plaintiffs did not consent thereto, and whether the said Senex did not engrave the same, and was jointly paid for so doing, by the Plaintiffs and Defendant? And whether the said engraved Map or Plan of the Defendant was not printed or stamped on the Original Articles of Agree- ment, afterwards executed on the 10th of May 1732? And whether there is any, and what Material Difference, between the Map or Plan so produced by the Defendant, and that printed or stamped on the same Original Articles of agree- ment of 1732? And whether the Defendant, at a Meeting between him and the three Plaintiffs, or some of the said three Plaintiffs, upon the 22d of July 1731, or at any and what other time, did not produce, out of his own Pocket, a written Paper, written of his own proper Hand- Writing, and read the same to the Plain- tiffs, as his own Note or proposal of what was to be agreed and done between the Plaintiffs and him? And what was and were the true Contents thereof, and may set forth an exact, full and true Copy thereof, at full length, in the very Words, Figures, Letters, and Abbreviations thereof ? And particularly, whether, in two several Parts thereof, the said Charles Lord Baltimore, did not expressly mention that 76 PENNSYLVANIA AND MARYLAND the Circle, round Newcastle, was to be 12 Miles from Newcastle, and 12 Miles distant from Newcastle? And whether that was not, in the Month of July 1731, his own real intention and meaning? And whether he in his Conscience does believe that running a Circle at the Distance of only two Miles, or less from New- castle, is, in any sort, according to his said own Proposal? And whether the Plaintiffs or their Agent did not, at the said Meeting upon the 22d of July 1731, desire of the Defendants to deliver to them the said Note or Proposal of the said Defend- ant, or a Copy thereof, in order to prepare the written Agree- ment at full length pursuant thereto? And whether the Defendant did not, then, express himself that he had not, at that time, any Copy thereof, but that he would deliver the same to his Sollicitor in order to give the Plaintiffs a Copy thereof? And whether the Defendant did then instantly deliver the same over to Mr. John Sharpe the Sollicitor for the Defendant, for the very purpose of assisting- to prepare the said Agreement at full length, and of giving the Plaintiffs a Copy of the said Note and Proposal in order thereto? And whether the Defendant did not then, at the said Meet- ing, consent and direct that the said Mr Sharpe should give the Plaintiffs a Copy thereof, and whether, in some few days after- wards, the said Mr. Sharpe did not give to the Plaintiffs a Copy thereof, as the said Defendant has heard, believes, and been informed? And that the Defendant may set forth where the said Original Note or Proposal is, and may produce the same a,t the hearing of this Cause? And whether, upon the 16th Day of August 1731, or when else, the Plaintiffs or their Agent, did not deliver over to the De- fendant, or his Agent, a Draught of Articles of Agreement between the Defendant and the Plaintiffs, prepared upon the foot of the Denfendant's own Note and Proposal before men- tioned, in order to be considered and settled by the Defendant and such other Persons as he should think fit to make use of, or advise with therein? And whether such Draught of Articles of Agreement was not, constantly and continually, from the said 16th Day of August 1731, to the Beginning of May 1732, or for how much of the said time, in the Custody, and under the Consideration and Examination, of the Defendant, and of Mr. Wynne his Council, Mr. Sharpe his Sollicitor, Mr. Senex his Mathemati- cian, and Mr. Ogle his Lieutenant, or Deputy Governor of Mary- BOUNDARY QUESTION. 77 land, and divers others, and who by Name, made use of by the Defendant to assist and help him in settling the same? And whether the Defendant, during such time taken for the Examination, Consideration and Settlement of the said Draught did not propose and insist on several, and what, and how many' new and different things to be provided for and inserted in the said Draught, which had not at that time been inserted in the said Draught, nor in the Defendant's own Note and Pro- posal, nor had ever once been proposed, or talk'd of, during the Treaty between the Plaintiffs and Defendant? And whether the Plaintiffs did not, at his Request, consent and agree to every one of such his new Proposals, or After- thoughts. And particularly, whether he did, or did not, insist on all and every the Matters and Things herein before for that Purpose mentioned, or any and which of them? And whether, in the Treaty in order to the said Articles of Agreement of May 1732, any one Matter or Thing, whatsover. proposed or insisted on by the Plaintiffs, was yielded or agreed to by the Defendant? And whether, on the contrary, every Matter and Thing whatsoever, which was proposed or insisted on by the Defend- ant, was not yielded and agreed to by the Plaintiffs? And that the Defendant may set forth all and every the Par- ticulars, which he had insisted on at any time during the said Treaty, which were not agreed to by the Plaintiffs, and also, all and every the Particulars which the Plaintiffs insisted on, at any time during the said Treaty, which were agreed to by the Defendant? And whether the said Draught of the said Agreement, after the same was settled by the Defendant and every one of his before-mentioned Agents, Assistants and Advisers to his own Satisfaction, was not engross'd, and was not executed by the Defendant and the Plaintiffs on the 10th Day of May 1732? And whether, soon after such the Execution of the said Articles of Agreement, namely, on or about the 12th Day of the same May, the Plaintiffs and Defendant did not, severally and respectively, execute such several Commissions as before men- tioned, authorizing 7 Commissioners therein named, or any 6, 5, 4, or 3 of them, to mark, run and lay out the Bounds so agreed upon? And whether the said Commission, so executed by the Defend- ant, and that so executed by the Plaintiffs, were not, exactly like and agreeable, each to the other, in Form and Substance, and were not both engross'd from one and the same Draught or Copy, only changing the Names and additions of the Persons 78 PENNSYLVANIA AND MARYLAND who granted the Powers and Authorities thereby given, and to whom the Powers and Authorities were granted? And whether such Commissions were not, respectively, sent over to America, and whether, on the Request of the Plaintiffs Commissioners, the Meetings, between the Plaintiffs Commis- sioners and those for the Defendant, were not begun, at New- town in Maryland, on the 6th Day of October 1732, and were not continued, adjourned, and held again, at all and every the Times and Places herein for that purpose mentioned, down to and upon the 24th of November 1733, being near 14 Calendar Months? And whether, at those Meetings between the said Commis- sioners, all and every of the Matters and Things herein before mentioned did not pass, and were not Transacted, at the Times, in the Manner, by the Persons, and with the Views and Designs, herein before mentioned and set forth, or with any, and what other Views, Intents and Designs, severally and respectively. And particularly, that the Defendant may, upon his positive Oath, say for how long, during the said Meetings between the said Commissioners, he the said Defendant was in America, and in or near to the Province of Maryland? And whether his Commissioners did, or did not, make all and singular the Cavils and Objections herein before mentioned, or not? And whether he the defendant was knowing of, or privy to, the same, or to any and which of them, or not? And whether he, at that time, advised, consented to, directed, approved of, or was acquainted with, any and which of the Doubts, Scruples and Objections, or pretended Doubts, Scruples and Objections, made by his said Commissioners at such Meet- ings, or any and which of them? And if the Defendant does not know, and in his Conscience believe, and has not been credibly informed, that it was the Intention and Resolution of all the Commissioners by him ap- pointed as aforesaid, or of some and which of them, and who by Name, to defeat and prevent the running out the Lines aforesaid agreed upon by the said Articles? And whether the said Commissioners, or some other Person or Persons, did not, after the Execution of the said Engros'd Articles of the 10th of May 1732, endeavour to persuade the De- fendant not to compleat and perform the same? And whether he, himself, was not, by some means or other, brought or induced to wish and desire, or intend, that the said Agreement might, or should not, be carried into Execution. And whether the Defendant ever, and when, did consult, converse or advise with any, and what, other Person or Persons, BOUNDARY QUESTION. 79 and when, and where, how the Execution of the said Agreement of May 1732 might be avoided or evaded, but so, as not to forfeit the Penalty or Sum or 50001. therein mentioned? And whether the said Commissioners of the Defendant, or any and which of them, or who else, did Object to the want of Parties in the Commission to the Plaintiffs Commissioners, and did raise such Objections and Difficulties to the making or fixing a Center for the said Circle, and to the Distance that the said Circle was to be from the Town of Newcastle, or not? And whether such Objections were made, or insisted on, with the Privity, Consent, Direction or Good-liking, of the Defend- ant? And whether he did, and does, approve of all the Proceedings of his Commissioners, herein before mentioned, or what and which Parts of the same he did, and does, Dislike and Disap- prove of? And whether the Defendant does know, or in his Conscience oelieve, that his Commissioners acted, in all things, with that Candour, Fairness and Dispatch, which he himself intended and agreed they should do at the time when he executed the said Agreement on the 10th of May 1732. And whether the Defendant is, oris not, willing and desirous that the said Agreement of the 10th of May 1732 should be ex- ecuted, fulfilled and performed, according to the true intent and meaning of the same, or why he is not? And, at Avhat Distance from the Town of Newcastle he himself d's insist the Circle, or part of a Circle, was agreed to be run, and ought to be run, and whether, at the several times of his producing and reading his said Note or Proposal, and also of executing the said Agreement on the 10th of May 1732, he meant, or intended that the said Circle, or part of a Circle, should be at the Distance of two Miles only, or of somewhat less, or at the Distance of 12 Miles from the said Town of Newcastle? And may set forth whether Commissioners on each side, pro- ceeding with Fairness, Candour, and Dispatch, and having no Difference of Judgment arising between them, might not, within the Space of four Weeks, at a proper Season of the Year, mark and run out so many, and so much of the Circle and Lines, mentioned in the said Agreement of May 1732, as were thereby agreed to be run and mark'd out; or, in what length of time the same might, at a convenient Season of the Year, be done, if no Delay, or Difference of Judgment, happened therein. And whether the Defendant did not present or cause to be presented, to his present Majesty, in his own Name, such Pe- tition as herein before mentioned, upon the 8th of August 1734, or any and what other Petition, and for what Purpose. 80 PENNSYLVANIA AND MARYLAND > And whether he did not, in Person, before the Lords Com- missioners for Trade and Plantations, expressly declare that he meant and intended, by his last mentioned Petition, to pray his Majesty for a Grant of the three lower Counties, and did not in such Words mean the three lower Counties of Newcas- tle, Kent, and Sussex. And why, and with what Views and Designs, in his said Pe- tition, he mentioned neither the Plaintiffs, nor their Father, nor the said Province of Pensilvania, nor the said three lower Counties by Name, nor set forth therein any thing at all relat ing to the said Agreement of May 1732, and why he asserted therein that there was such a Report or Order in Council of the 4th of April 1638 relating to the said William Clabourne and the Isle of Kent, when his Grandfather had in Person de- clared, about 50 Years before, that there was no such Original Order? And why, in inserting in his last mentioned Petition the Ac- count of what was done in the Year 1685 as aforesaid, he omitted and concealed those very material Words, in the Heart of the Report of the then Committee for Trade and Foreign Planta- tions, which imported that the Tract of Land then in Dispute had ever since from the Date of the said Patent for Maryland in 1632 been inhabited and planted by Christians and had con-' tinued as a Distinct Colony from that of Maryland? And why he concealed, in his said last mentioned Petition, the old Possession, and great Improvements, made by and under the Plaintiffs and their said late Father? And whether the Defendant did not, and doth not, think, and in his Conscience believe, that those Facts, so by him omitted and concealed in his said Petition, were true, and pro- per and material Facts to be laid before his Majesty and his Ministers, or not? And whether the Plaintiff John Penn was not gone for America, at the time the Def andant presented the said last men- tioned Petition to his Majesty? And whether, the Defendant did not propose and expect some Advantage to himself, by the Absence of the Plaintiffs John Penn and Thomas Penn? And whether the Defendant did present the said last men- tioned Petition to his Majesty in order to obtain a Grant of the said three lower Counties for himself, and for his own Use, Benefit, and Advantage, or, for the Use and Benefit of the Plain- tiffs and as a Trustee for them? And in Case he meant and intended and hoped to obtain a Grant of the same for himself, that the Defendant may set forth why, and for what Reasons, he never gave the least Notice BOUNDARY QUESTION. 81 of such his last mentioned Petition to the Plaintiffs, or any of them, or any Agent of theirs, but carried on the same privately and wholly unknown to the Plaintiffs. And whether there have not been such Orders, Proceedings, Petitions and Reports, founded on the said last mentioned Pe- tition of the Defendant, as are herein before mentioned and set forth, or what others, and to what Effect and Purpose? And whether the Defendant does admit that the said Agree- ment of the 10th of May 1732 does now exist, and subsist in Full Force and Virtue, or whether he does insist that the same is absolutely void? And, in Case he insists that the same is void, that, then, he may set. forth, minutely, exactly and particularly, why, and for what Reasons, he insists the same is void? And that the Defendant may set forth and discover whether it is not as easy and as practicable (in a proper Season of the Year) now to run, mark and lay out the Bound- Lines, agreed upon by the said Articles of the 10th of May 1732, as it was between the Month of October 1732 and Christmas 1733, or what new Difficulties have, since the last mentioned time, arisen to make that Work more Difficult, or less Practicable, now, than at that time? And how long Space of Time, as he believes, would be really necessary for Commissioners, that would proceed with Fairness, Candour and Dispatch, to run out all the several Lines and Bounds pursuant to the said Agreement of May 1732, in case no Difference, or pretended Difference, in Judgment arose between them? Relief prayed. 1. And that the Plaintiffs may be at liberty to examine their Witnesses, whom they charge are very aged and infirm and likely to die, to perpetuate their Testimony, 2. And that the Plaintiffs may be quieted in the Possession of the three lower Counties, which have so often as aforesaid been adjudged not to be comprised within the Bounds granted as above mentioned to the said Cecilius Lord Baltimore, by that Jurisdiction which, in the last resort, determines all Questions concerning Property in any of his Majesty's Plantations in America, 3. And that the Defendant may be decreed to desist from giving them any further Trouble, or Molestation by renewing the said oil, and heretofore often over-ruled, Claims to the same, 4. And that the said recited Articles of Agreement, of the 10th of May 1732, may be decreed and declared to exist and subsist and to be in full Force and Virtue, 6— Vol. XV. 82 PENNSYLVANIA AND MARYLAND 5. And may be decreed to be forthwith specifically performed, and to be carried into full Force and Execution, in all Points and Respects whatever, 6. And that all necessary and proper Directions may be given, in order thereto (the Plaintiffs hereby offering to do everything which shall be adjudged necessary, on their Parts, in order to the same,) 7. And that the said pretended Doubts, as to the fix- ing a Center for the said Circle around the said Town of New- castle, and as to the Dimensions of the said Circle, or Dis- tance from the said Town, at which it is to be marked out, and any other Doubt, or pretended Difficulty, that the Defen- dant hath, or pretends to have, relating to the said Articles of Agreement, or any thing therein contained, or the Execution and Performance of the same, may be removed and cleared up, by the Authority and Decree of this Court (the Plaintiffs hereby Offering 1 to fix the said Center in the Middle of the said Town of Newcastle,) 8. And that the Defendant may now, instantly, and may, again, after the said Lines and Bounds shall be run, mark'd and laid out, in a more certain and particular manner, pursuant to his Covenants and Agreements in the said recited Articles of Agreement contained, make further and better Assurances and Conveyances to the Plaintiffs, their Heirs and Assigns of the said Province of Pensilvania, and of the said three lower Counties of Newcastle, Kent, and Sussex, to be bounded, and bounded, according to the true Intent and Meaning of the said Articles of Agreement of the 10th of May 1732, and of all his Right, Interest, Pretensions, Claim and Demand in and to the same ; such Conveyances and Assurances to be settled, in case the Parties differ about the same, by a master of this Hon- ourable Court (the Plaintiffs hereby offering, on their parts, to make reciprocal Assurance and Conveyances of the said Prov- ince of Maryland, to be so bounded as aforesaid, and of all their right, Interest, Pretentions, Claim and Demand in and to the same, unto the Defendant, his Heirs and Assigns,) 9. And that the Defendant may be decreed to pay to the Plain- tiffs all the Costs and Expences, of their said Commissioners, and otherwise, relating to the executing the said Agreement of May 1732, and likewise all the Costs which the Plaintiffs have been, any way, put to, by reason of the Breach and Non-Per- formance on the Part of the Defendant of the said recited Articles of Agreement of May 1732, and by reason of the said Petition of the Defendant presented to his Majesty on the said 8th of August 1734, 10. And that the Plaintiffs may have all such further and BOUNDARY QUESTION. 83 other Relief, in the Premises, and in such other manner, as shall be consistent with Justice and Equity, 11. And may have a perpetual Injunction, to quiet the Plain. tiffs, and their Grantees, Tenants and Occupiers, claiming by Titles under the Plaintiffs, or under those from whom the Plain- tiffs claim and der ive Title as aforesaid, in the peaceable Pos- session and Enjoyment of the said Province of Pensilvania, and the thi'ee lower Counties of Newcastle, Kent, and Sussex, to be bounded, and bounded, as aforesaid, 12. And to have Writs of Injunction, tmd Writs of Subpoena. IS THE BILL. 1735. May 16. The Order in Council was made, at least giving leave, if not directing, that such a Bill should be brought. 1735. June 21. In five Weeks time afterwards, this very long Bill was drawn and filed. 1735. June 25. The Defendant was served with an Office Copy of the Bill and a Subpoena to Answer. 1735. July 1. The Plaintiffs obtained an Order for a Sequestration unless Cause, for want of an Appearance. 1735. July 29. The Plaintiffs obtained another Order for a Sequestration un- less Cause, for want of an Answer. 1735. Aug. 2. The Defendant moved and obtained an Order to refer our Bill for Scandal and Impertinence. 1735. Oct. 11. The Plaintiffs moved and obtained an Order that the Master should proceed on that Reference de die in diem. 1736. May 25. Master Eld reported our Bill not Scandalous nor Imperti- nent. 1735. Bee. 18. The Plaintiffs obtained an Order to amend, and did amend, their Bill. 1737. June 15. The Defendant, above two Years after the Bill filed, put in his Answer, having spun out that time by his Reference for Scandal and Impertinence, and by Privilege of Parliament. DEFENDANT'S ANSWER, SWORN 15 JUNE, 1737. Believes that there is, in Amercia, a certain Tract of Land or Peninsula, shooting out from the main Continent, South 84 PENNSYLVANIA AND MARYLAND ward, unto the Atlantick Sea or Ocean ; and, for ought this De- fendant knows to the contrary, and as this Defendant has heard and believes, the said Peninsula or Tract of Land and is bounded, on the West, East, South, and North Sides thereof, as in the Bill is for that Purpose particularly set forth and described. Hath heard, and believes it may be true, that the great River or Bay of Delaware, in the Plaintiffs said Bill mentioned, runs between the same Peninsula or Tract lying on the West Side thereof, and the Territory now called West-New-Jersey lying on the East part thereof. And that the said West-New-Jersey might be, heretofore, called, successively, New-Belgia, New-Netherlands, and New England, as in the Bill is alledged. But saith that he doth not know, nor can he set forth, by whom the said Peninsula, or Tract or Parts Contiguous thereto, were first discovered, or the time when they were first discov- ered ; nor whether Capt. John Smith, an Englishman, in the Bill named, was the first Discoverer thereof, about the time in the Bill for that purpose mentioned, or at any other, or what time; never having so much as heard the same, or had any Ac- count of the said Capt. Smith's being the first Discoverer there- of, save from the Bill. Nor can set forth whether the said Capt. Smith did, or did not, give or affix Names to several, or any, of the Places on that part of the main Continent which lay over against the said Peninsula on the Western Side of the Bay of Chesopeake, as in the Bill is set forth ; the Defendant, if Capt. Smith so did, being an entire Stranger thereto, not having ever heard of the same save by the Bill. Doth not know, nor ean set forth, whether the said Capt. Smith, at any time after his return from his pretended Voyage in the Bill mentioned, did, or did not, cause to be printed and published a Book, giving any Account of his Voyages and Dis- coveries, as in the Bill is alledged; nor, if the said Capt. Smith did cause such Book, to be printed and published, whether such Book was printed in or about the time in the Bill for that purpose mentioned, or at any other time, or when, or whether he annexed to such Book a Map or Plan of the said Peninsula, or of any of the adjacent Parts of what was then called by the general Name of Virginia, or whether he intitled his Book as in the Bill is for that purpose particularly mentioned and set forth. Though he hath heard and believes there is such a Book ex- tant, and in print, as is described by the Bill, and therein al- ledged to have been printed and published by the said Capt. Smith ; but as the same purports, and appears, from the Title BOUNDARY QUESTION. 85 thereof, as stated and set out in the Bill, to have been printed and published now upwards of 100 Years since, cannot take upon him to say, or set forth, whether the same was so printed and published by the said Capt. Smith at the time, or in the manner, in the Bill mentioned, or, whether the same was not printed and published by any other Person, under- Colour of the said Capt. Smith's Name, and without his Knowledge or Consent, in order to give the better Authority to the said Book, and to pro- mote the Sale thereof for the Benefit of the Author or Pub- lisher thereof. But, whether the said Book is a well known Book among Historians, Geographers, and Mathematicians, or of what Au- thority or Esteem the same may be in amongst them, nor whether the said Book and the Map of Virginia therein con- ined,are held in any, or what, Estimation amongst learned Men, nor whether the same are by them, or any one else, reckoned and esteemed as the first and earliest Account and Description) or Map, ever given of those Parts in and near to the said Pe- ninsula by any Englishman whatsoever, as in the Bill is sug- gested, this Defendant doth not know, nor can set forth; this Defendant having but very little Knowledge of the same him- self, and never having heard much concerning the same. Nor can this Defendant set forth whether the said Map of Virginia, thereto annexed, contained the Degrees of Longitude and Latitude according to the best Observations and Discoveries then made. But saith he hath been credibly informed, and believes, that the said Map hath been, many Years since, found by Experience, to have been, in many respects, faulty and erroneous, and by no means a true or correct Map thereof, and in no wise to be de- pended upon. And is advised, and apprehends, that all this Part of the Plain- tiffs Bill, touching who was the first Dicoverer of the said Pe- ninsula, and in relation to the said Capt. Smith, and the said Book, and Map pretended to be published by him, are wholly immaterial, and no ways relative to any of the Matters in Ques- tion in this Cause. Believes it to be true that the three lower Counties of New- castle, Kent, and Sussex, in the Bill described and mentioned, are situate on the Eastern Side of the said Peninsula or Tract, and also above the Peninsula or Tract, within the main Land or Continent, and, towards the Sea and the Estuary of Delaware, as in the Bill is set forth. But denies that he either knows, or believes, or hath ever heard, that the said three Counties have been ever called, or went under the general Name of, the Territories belonging to Pensilvania; 86 PENNSYLVANIA AND MARYLAND the said Counties, or any Part of them, or either of them, having never, to the best of this Defendant's Knowledge or Belief, been looked upon, or esteemed, to be any Part of, or to belong to, Pen- silvania, or the Territories thereof, by any other Persons than the Family of the Penns themselves, and their Dependants and Adherents, whose Interest it was to endeavour to have them thought or esteemed Part of Pensilvania. Nor does this Defendant know or believe, nor did he ever hear, save from the Family of the Penns and their Dependants and Adherents, and save from the Bill, that the Territories belong- ing to Pensilvana did, or could, or does, signify and mean, or com- prehend, or include, the said three lower Counties, or any part of them or either of them. Doth not know, nor can set forth, whether the said three low- er Counties were ever called or comprehended under the Name of the Settlement on Delaware, or by the Name only of Dela- ware, or at other times by the Name of the Province of Delaware, this Defendant having never heard the same so called, or called by any other Name or Names than the three lower Counties on Delaware, or the Counties of Newcastle, Kent, and Sussex, and if they ever were called, or comprehended, under the Names in the Bill mentioned, this Defendant believes it must have been a great many Years ago, and in the Infancy of their Settlement, and before any considerable Parts thereof were inhabited or cultivated ; nor is at all Material, in the Judgment and Belief of the Defendant, by what Name or Names they may have been called. Denies that he either knows, or ever heard, otherwise than by the Bill, or believes, that the said three lower Counties on Dela- ware, of Newcastle, Kent, and Sussex, were, of very early and ancient Times, the beginning whereof is not known (as is pre- tended by the Bill) settled, planted and inhabited by Chris- tians of the Swedish Nation, or that the same were afterwards held and inhabited, for many Years, by Christians under the Dominion of the States General of the United Provinces, in th e manner as in the Bill is for that purpose set forth and men. tioned. But, on the contrary, hath always understood and believes, the same were not settled, planted and inhabited by Christians at any time before, or until after, the Grants thereof to this De- fendant's Ancestor by his Majesty King Charles the First, as herein after is more particularly set forth. But saith he hath heard and believes that some few itinerant Swedish and Dutch Traders did, now and then, visit, and re- sort to, some small and inconsiderate Part of the said three Counties, antecedent to the said Grant; but never heard, o BOUNDARY QUESTION. 87 believes, that the said Swedes or Dutch, or any other Christians whatever, had ever formed, or made, any abiding Settlement there before the said Grant thereof to the Defendant's said An- cestor as herein mentioned; all the Christians there being only a few Swedish and Dutch, straggling, itinerant Traders, that now and then resorted to that part of the Skirts or Borders of the said Counties, for the Benefit and Conveniency of Trade with the Natives. And is advised, and conceives, it is wholly immaterial, as to any Question that can arise between him and the Plaintiffs, whether the said Tract of Land was, or was not, inhabited by Christians antecedent to the said Grant. Neither knows, believes or ever heard, save from the Plain- tiffs or their Agents, and the present Bill, that the said Counties have, ever since the Year 1663, been in the quiet Possession of the late James Duke of York, and of the Plaintiffs Father, and of the Plaintiffs in their own Right, as is untruly alledged in and by the Bill, or that the Complainants have now any Right to the Possession thei-eof. On the contrary, saith, he this Defendant, ever since he came of age, and his Ancestors, before him, as he hath heard and believes, have, all along, ever since the Grant of the said three Counties to his Ancestor as aforesaid by King Charles the First, and both before, and after, the said Year 1663, from time to time, asserted, supported and maintained, to the utmost of their Ability and Power, the Right and Title to the Possession of the said three Counties; and this Defendant's said Ancestors did, and exercised, Acts of Ownership thereon, and received Rents from several of the Tenants and Inhabitants thereof, and Avere at very great Expences and Charges in Improving and Cultivating the same, and in driving out, and defending them- selves from, the barbarous Indians and Natives that first in- habited there, before the same was known or found out by any Christian Settlers, to the Knowledge or Belief of this De- fendant. Saith that, in or about the Year of our Lord 1632, Cecilius, then Baron of Baltimore, did petition his late Majesty King Charles the First, praying leave to transport a Colony of the English Nation into America, and believes it may be true that the said Cecilius, then Lord Baltimore, might, in his said Petition to King Charles the First, suggest that the parts of America, he so prayed to have Liberty to transport an English Colony into, was not then cultivated and planted, though in certain Parts thereof inhabited by certain bar- barous People having no Knowledge of Almighty God, and, therefore, besought his Majesty to Give and Grant to him, the 88 PENNSYLVANIA AND MARYLAND said Cecil ius, and his Heirs for ever, all such the said Country in his said Petition mentioned, with certain Priviledges and Jurisdictions for the Government thereof, as in the Plaintiffs said Bill is for that purpose set forth and mentioned ; but this Defendant, having never seen such Petition, cannot, with any certainty, answer or set forth whether the same was so or not, though, from the Words of the Grant, made upon such Petition, and herein after pai'ticularly set forth, this Defendant believes the Plaintiffs Allegations in their said Bill, with respect to the said Petition of the said Cecilius then Baron of Baltimore, may be true. Likewise admits that, thereupon, his late Majesty King Charles the First, by his Letters Patent, under the Great Seal of England, bearing Date at Westminster the 20th Day of June, in the Year 1632, did Give and Grant, unto the said Cecilius, in Fee, two several Tracts of Land, namely, one Tract which was part of the before -mentioned Peninsula, and one other Tract of Land which was part of the Main Land, lying West- ward of the said Peninsula, and on the West side of the said Bay of Chesopeake; the respective Buttals and Boundaries of which said two several Tracts of Lands, so granted to the said Cecilius, by the said Letters Patent of his Majesty King Charles the First, are particularly set forth and described in the said Letters Patent under the Great Seal of England, now in Defendant's Custody and ready to be produced as this Hon- ourable Court shall please to dircet; and which Letters Patent, as the Plaintiffs by their Bill have required this Defendant to set forth the same verbally and literally from the beginning thereof unto the first Habendum therein, this Defendant saith he hath, accordingly, herein set forth the same; and likewise, in regard that the Habendum or granting part of the said Grant tends to explain the first or the reciting Part thereof, which cannot be so clearly or so well understood, without the Haben- dum, this Defendant hath, therefore, set forth the said Grant or Letters Patent, Verbatin, down to the end of the Habendum; the same, to the best of this Defendant's Knowledge, Examina- tion and Belief, being verbally and literally, and the Words of the said Original Charter respectively written at length and ab- breviated, as follows (Viz.) Rex, &c. Omnibus ad quos. &c. Salutem. Cum perdilectus et perquam fidelis subditus nostei', Cecil Calvert, Baro de Bal- timore in Regno nostro Hibernise, filius & hseres Georgii Calvert Militis, nuper Baronis de Baltimore in eodem regno Hibernise, patris inhserens vestigiis laudabili quodam et pio Christian* religionis pariter, & imperii nostri territor' dilatandi studio flagrans, licentiam nostram, ut copiosam Anglican* gentis BOUNDARY QUESTION. 89 Coloniain, industria & iiupensa sua, ad eertam quandam regio- neni, inferius describendaui, in terra quadam, in partibus Amer- ica, haetenus inculta, & barbaris nullam iivini Numinis noti- tiam habentibus in partibus oeeupata,deducere possit,totamque illain regionein, cum certis quibusdaiu privileges, & jurisdic- tionibus, ad colonic sua% & regionis praedictre salubre regimen & statum pertinentibus, a regia nostra celsitudine, sibi & harre- dibus suis dari, concedi & confirmari, humiliter supplicaverit ; Sciatis igitur quod nos, pium et nobile, prarfatorum Baronum de Baltimore, propositum & studium, regio favore prosequentes, ex gratia speciali, certa scientia & inero motu nostris, dedimus, concessimus & conflrmavimus, & per hanc prarsentem chartam nostram, pro nobis harredibus & successoribus nostris, prafato Cecil' modo Baroni de Baltimore, & harredibus & Assignatis suis, damus, concedimus & confirmamus Totam illam partem peninsular, sive chersonesus, jacentis in partibus American, inter oceanum ex oriente, & Sinum de Chesopeake ab occidente, a resid' ejusdem, per rectam lineam a promontorio sive capite terras vocato Watkin's Point juxta sinum prardictum prope fluvium de Wigbco, scituat' ab occidente, asque ad magnum oceanum, in plaga oriental' ductam, divisam; Et, inter metam illam a meridie, usque ad partem illam arstuarii de Delaware, ab aquilone,quarsubjacet quadragesimo gradui latitudinis, Septen- trionalis, ab arquinoctiali, ubi terminatur Nova Anglia; Totum- que ilium terra; tractum, infra metas subscriptas; Viz. transe- undo, a dicto arstuario vocato Delaware Bay, recta linea,per gra- dum prardictum, usque ad verum meridianum primi fontis fluini- nis de Pattowomack, deinde. vergendo, versus meridi?in, ad ulteriorem dicti numinis ripam, &, earn sequendo, qua plagam occidentalem & meridionalem spectat, usque ad locum quendam, appellatum Cinquak, prope ejusdem fluminis ostium scitua- tum, ubi in prarfatum Sinuni de Chesopeake evolvitur, ac, inde per lineam brevissimam, usque ad prardictum promontorium, sive locum, vocatum Watkin's Point, (ita quod totius tenrae- tractus per lineam prardictam, inter magnum oceanum & Wat- kin's Point divis' usque ad promontorium vocatum Cape Charles, & singula sua appenditia, nobis, harredibus & successori- bus nostris, integre remaneant excepta, imperpetuum) nee non omnes insulas, et insululas, infra limites p'rardictos. Concedimus etiam, & confirmamus, eidem Baroni de Baltimore, harredibus& Assignatis suis, omnes & singulas insulas, & insululas, ab orien- tali praedietar regionis littore orientem, versus in mari, natas, vel nascendas, infra decern leucas marinas, ab eoclem littore scituatas, cum omnibus & singulis portubus, navium stationi- bus, arstuariis, fluminibus, & fretis, ad regionem, vel insulas, prardictas, pertinentibus; omnesque fundos, terras, campestria, 90 PENNSYLVANIA AND MARYLAND silvas, monfcana, paludes, lacus, flumina, astuaria, & freta, infra metas, terminos & limites praedictos, scituata,seu existen- tia; cum cujuscunque genei'is piseium, tam baleenarum, Stur- geonum & aliorum, regaliuru quain aliorum, in ruari, sinubus, fretis vel fiuminibu infra pra3iuissa,piscationibus,& pisce ibidem capt' ; Omnesque insuper auri,argenti,gemmarum, lapidum pre- ciosorum,& aliorum, quascunque, sive lapidum, si veMetallorum, sive alterius cujuscunque rei aut materia, venas, mineras, & fodi- nas, tam apertas quam occultas, infra regionem, insulas, seu limi- tes pradictos, repertos & reperiendos ; Et hoc amplius omnium ecclesiarum, quas (crescente Christi cultu & religione) infra dic- tam regionem, insulas, & insululas, & limites pnedictos, futuris temporibus eedificari contigerit, patronatus & advocationes; Una cum licentia & facultate ecclesias, capellas & oratoria, in locis infra prsemissa congruis & idoneis, extruendi & fundandi ; eaque dedicari & sacrari juxta leges ecclesiasticas regni nostri Anglian faciendi ; cum omnibus & singulis hujusmodi, ac adeo amplis juribus, jurisdictionibus, privilegiis, prasrogativis, reg- alitatibus, libertatibus, immunitatibus, juribusque, regalibus & franchesiis, quibuscunque, temporalibus, tam per mare quam per terram, infra regionem, insulas, insululas, & limites prse- dictos, habend' exercend' utend' & gaudend' prout aliquis Epis- copus Dunelmensis, infra Episcopatum sive Comitatuin Palati- num Dunelmensis in regno nostro Anglian, unquam antehac babuit, tenuit,usus vel gavisus fuit,seu de jure habere, teneri, uti vel gaudere debuit aut potuit, Ipsumque modo Baronem de Bal- timore, & haredes suos, regionis predict*, caterorumqueomin- um praemissorum, veros et absolutos Dominos & Proprietaries (exceptis prreexceptis) salva semper fide, & ligeantia,ac dominio directo, nobis, haeredibus & successoribus nostris, debitis, pro nobis, haeredibus & successoribus nostris, facimus,creamus & con- stituimus per praesentes ; habend' tenend' possidend' & gaudend' praedictam regionem, insulas, insululas, & castera prasmissa, praefato modo Baroni de Baltimore, & haeredibus & assignatis suis, ad solum & proprium opus et usum ipsius modo Baronis de Baltimore, hatred um & assignatorum, suorum,imperpetuum; tenend' de nobis, haeredibus & successoribus nostris, Regibus Angliae, ut de Castro nostro de Windsore in comitatu nostro Berks, in libero & cominuni socagio, per fidelitatem tantum pro omnibus Servitiis, & non in Capite, nee per Servitium militare. As by the said Original Letters Patent, under the Great Seal of England, to wbich Defendant for his greater cer- tainty craves Leave to refer, relation thereunto being had, may more fully and at large appear. Defendant cannot but observe, that, notwithstanding the Words Hactenus inculta are made use of in the Preamble of BOUNDARY QUESTION. 91 the said Charter, the Lands thereby granted being then lookt upon and esteemed to be incultivated, yet, they are not inserted by way of restriction in the Body, or granting part thereof ; and, therefore, Defendant is advised, and insists, the Lands, thereby described and granted, are not restrained to the said Words Hactenus inculta, but did, all, well pass by the said Let- ters Patent, notwithstanding the said Words Hactenus inculta so recited in the Preamble thereof. Admits that his late Majesty, King Charles the First, by his said Letters Patent to the said Cecilius, did grant, unto the said Cecilius in Pee, all Islands and Islets within the Limits described in the said Grant as aforesaid, and all and singular the Islands and Islets which were, or should be, in the Ocean, within ten Leagues from the Eastern Shore of the said Country towards the East as in the Bill is set forth,' and that his said late Majesty did thereby erect the said Lands, so granted, into a Province, by the Name of Maryland, with certain Priviledges and Jurisdictions for the better governing thereof. Doth not know, nor can set forth, whether the said Letters Patent or Grant, so made to the said Cecilius as aforesaid, was, or was not, so described, or whether the Tracts, which were thereby granted, were, or were not, so bounded, by the help of the said pretended Captain Smith's said Book and His- tory or Map of Virginia, and no other, as by the Bill is alledged ; nor whether any skilful Persons own or acknowledge or believe the same, for the Reasons in the Bill mentioned, or for any other Reasons ; but this Defendant, having never compared the said Book or Map with the Names and Descriptions of the sev- eral Places mentioned in the said Letters Patent, hath no reason to believe the Boundaries or Descriptions in the said Letters Patent were taken from such Book or Map. Defendant is advised and insists the said pretended History of Smith cannot, in any respect, add to, or diminish from, the Grant to the said Cecilius, or be of any Authority to explain the same, if there was any Doubt or Obscurity as to the Limits of the Lands that were thereby granted, and which he humbly apprehends there is not. Saith the said Grant fully and clearly, as he doubts not to make appear, extends to, and includes, all and every part of the said three Lower Counties of Newcastle, Kent and Sussex. Doth not know, nor can set forth, whether the said Captain Smith's pretended History and Map of Virginia, had been printed and published some few, or any, or what, number of Years, or how long, before the presenting such Petition of the said Cecilius, then Baron of Baltimore in 1632 to his Majesty King Charles the First, and the issuing such Letters Patent as 92 PENNSYLVANIA AND MARYLAND aforesaid, or whether the said Captain Smith's said History and Map of Virginia, was then printed or published at all, as pretended by the Bill ; though, for ought he knows to the con- trary, such Book might be then printed and published, and which he is inclinable to believe it was, from the Date it bears, and the Year in which it purports, upon the Title page, to have been printed and published. Doth not know, nor hath even heard, save from the Plaintiffs and their Bill, nor hath he any Reason to believe, nor doth he believe, that there was then no other Map or Plan of the said Peninsula or Tract, or the Parts adjacent thereunto done by any Englishman whatsoever extant, nor any History or De- scription of the same Peninsula or Tracts and Parts adjacent, published, printed, known or used, than the said pretended Book or History and Map of Captain Smith's, as is alledged in and by the Bill ; the said Peninsula, and the several Parts ad- jacent thereto, as he hath been informed and believes, having been discovered, though not inhabited, or settled upon, by En- glishman, as well as others of Foreign Nations, many Years before the Grant thereof to the said Cecilius, the Defendant's Ancestor, by his said Majesty King Charles the First as afore- said, or the time of the pretended printing and publishing of the said Captain Smith's said History; and the Defendant hath now, in his Custody or Power, a Map thereof, much more ancient, as he believes. Denies that he either knows, or believes, that, according to the express Bounds of the said recited Letters Patent, the Head, or most Northern Parts, of the Lands, thereby granted to the said Cecilius, was to extend only so far as until it subjoined to such part of the Estuary of Delaware, as lay under the 40th De- gree of the Northern Latitude, as in and by the Bill is sug- gested, or that every, or any, part of the Lands which lay under the said 40th Degree, or of such Lands as lay from the 39th De- grea compleat to the 40th Degree compleat, were excluded by the said Grant. On the contrary, the Defendant saith he is advised, and con- ceives, that, according to the express Bounds of the said recited Letters Patent, the Lands, thereby granted, were to extend, though the 40th Degree compleat, and to the end thereof, and that no part of the Lands under the said 40th Degree were ex- cluded out of the said Grant, or meant or intended so to be, all the Lands under the said 40th Degree being, manifestly, and in Terms, comprehended within the said Grant. Insists that no such Construction, or Restriction, can, or ought to, be put upon the said Grant, as the Plaintiffs mention and insist upon by their Bill, the same, as he is advised and BOUNDARY QUESTION. 93 conceives, being directly contrary not only to the express Terms, but to the true Intent and Meaning, of the said Letters Patent. Believes that, from the 89th Degree compleat, to the 40thDegree compleat, is 60 Geometrical Miles or Minutes, or 69 English Stat- ute Miles, as the Plaintiffs compute and state the same by their Bill, and that there is such Quantity or Space of Land lying under the 40th Degree as the Plaintiffs mention, but insists that the whole thereof, and all Lands lying under the said 40th De. gree, of what Space or Quantity soever, were granted to the said Cecilius, by the said Letters Patent, and not such Lands, or so far only, as extended or adjoined to the said 40th Degree, as the Plaintiffs unjustly pretend by their Bill. Denies that he either knows, or believes, that it appears by the Land Marks, Buttals and other Descriptions in the said re- cited Letters Patent, or by any of them, that no part of the Lands which lay under the 40th Degree was, or was intended to be, granted to the said Cecilius; on the contrary, apprehends and is advised that it manifestly appears, from all and every the Land Marks, Buttals and other Descriptions, contained in the said recited Letters Patent, that all the Lands which lay under the said 40th Degree were, and were intended to be, thereby granted to the said Cecilius. Denies that he either knows, or believes, or ever heard, save from the Plaintiffs and their Agents, that, at the time of mak- ing the before recited Letters Patent to the said Cecilius, such part of the said Peninsula as is for that purpose mentioned and described by the Plaintiffs said Bill, or any part thereof, or any part of the Continent at the Head or North part of the said Peninsula, and which is now called the three Lower Counties of Newcastle, Kent and Sussex, was seated and in- habited by the Swedes and Dutch, or either of them, in man- ner as in the Plaintiffs Bill is for that purpose set forth and alledged, or in such a manner as that his Majesty was not at the time of the said recited Letters Patent to the said Cecilius seized or possessed thereof, so as to have a good Right and Power to grant the same, as by the Plaintiffs said Bill is most untruly suggested. Defendant is advised and humbly insists that his said late Majesty had good Right and Power to grant the same, and. that he did, by his said Letters Patent, grant, and did intend to grant, the same, and that the said Cecilius did, by his said Petition, and according to the true Scope, Acceptation and Meaning thereof, petition his Majesty for the same. Defendant is advised and insists that, from the Words of the said Cecilius's Petition, whereby he prays Leave to transport an English Colony into a certain Country therein after de- 94 PENNSYLVANIA AND MARYLAND scribed in the Parts of America not then cultivated and planted, though in some Parts thereof inhabited by certain barbarous People, having no Knowledge of Almighty God, and from the particular and exact Bounds, and Limits of the Country therein after set out and described in the said Cecilius's Petition, and the said Letters Patent granted thereupon, which evidently and manifestly takes in and includes the said three Lower Counties of Newcastle, Kent and Sussex, it is undoubtedly plain that the said three Lower Counties were not then known, looked upon, or esteemed, to have been inhabited or planted, or settled upon by any Christians whatever, either English or Foreigners, or by any others than the rude and barbarous Indians, and that the said Cecilius, by his said Petition prayed for a Grant of the said three Lower Counties, and that his Majesty certainly in- tended to grant the same. Defendant is advised and conceives that his Majesty had full Power so to do, and was well seized and possessed of the said three Lower Counties, so as to grant the same, and that, if there was any itinerant Dutch or Swedish Traders upon any part of the said three Lower Counties, at the time of his Ma- jesty so granting the same to the said Cecilius, yet, that their being there, could in no manner deprive or take from his Ma- jesty the Power of granting the same, or lessen or diminish the said Grant, and that a few of such Foreigners being there, in Case there were any such, would in no Case make the same be considered as inhabited and cultivated, in such a manner as to impeach or invalidate the said Grant; for, that his Majesty could not be supposed to have any View to secure Possessions to Foreigners, appears from the express Words of the said Grant, it being mentioned and recited to be made for the Enlargement of the English Empire and Dominion ; and, as the Limits de- scribed in the said Grant clearly take in the said three Lower Counties, the Defendant is ad /ised there can be no pretence of any Deceit on the Crown in obtaining the said Letters Patent, though there should happen to be some few Swedish and Dutch settled upon some small inconsiderable Parts of the said Counties. Hath heard, and believes it to be true, that, after the said Letters Patent and Grant were made to the said Cecilius as aforesaid, he the said Cecilius, or some of his Defendants, en- tered upon and took possession of the same Premisses so granted, and have ever since continued possessed thereof, save as here- after is mentioned as to such Parts thereof as the Plaintiffs and their Ancestors have unjustly usurped the Possession of, and to which they now pretend a Right, but, as Defendant is ad- BOUNDARY QUESTION. 95 vised and insists, without the least Manner of Right or Title thereto. Denies that he either known or believes, or hath ever heard, save from the Plaintiffs or their Dependants, that the said Swedes and Dutch successively possessed and enjoyed for many Years after the Date of the said Letters Patent to the said Ceci- lius their ancient Settlement on Delaware, as described and mentioned in the Plaintiffs said Bill of Complaint, the said Dutch and Swedes having no such Settlement there (as this De- fendant ever heard of, or believes) as is pretended and sug- gested in and by the Bill, there being but a few of them there (if any) and those but itinerant Traders, who had nothing that could deserve the Name of, or be considered, as a Settlement thereon ; or if they were settled there, had no Right to the same, or at least to such Parts only as they were actually settled upon, and as were inhabited by them as aforesaid, which were very small and inconsiderable. Hath heard, and believes it to be true, that the said Cecilius and his Heirs or Descendants, the Defendant's Ancestors, did set down, and take possession of, Lands, on the Western Side of the said Peninsula above, and more Northwards than, the 39th Degree of Northern Latitude compleat, and even almost to the 40th Degree compleat, of the said Northern Latitude, but is advised and apprehends the same was not so done by them in Deceit and Disinherison of his Majesty, but all such Lands as they so sat down upon, or took possession of, were expressly contained within the Limits and Bounds of the said recited Letters Patent, and for which Seating down and Possession Defendant is advised and insists that the said Cecilius, or his Heirs or Descendants, had a clear and indisputable Right and Title under the said Letters Patent and Charter of Maryland as before is mentioned. Denies that he either knows, or ever heard or believes, that the Plaintiffs, or either of them, or any under whom they claim, ever could, or did, make or transfer any legal Title or Right of the said three Lower Counties, or either of them, or of any Part thereof, to any Descendant of the said Cecilius, as is un ■ truly alledged in and by the Bill, or that any Descendant of the said Cecilius ever did or could derive or have any Right or Tite thereto from the Paintiffs, or those under whom they de- rive, the Plaintiffs or either of them, or those under whom they derive, never having had any Manner of Right or Title to the said three Lower Counties, or either of them, or any Part thereof, to the Knowledge or Belief of this Defendant. Doth not know, nor ever heard, save from the Bill, nor doth he believe, that the Dutch ever held the said Lands called the three 96 PENNSYLVANIA AND MARYLAND Lower Counties (which this Defendant hath heard and believe lie on the Western Side of the River of Delaware) as appertain- ing and belonging to a larger or greater Settlement, upon a large Tract of Land Part of what is generally called New Eng- land, and particularly on those Parts now called West New Jersey and East New Jersey and New York on the Eastern Side of Delaware; or, that the said three Counties always went along with the said larger Tract or Settlement, as by the Bill is suggested, or any ways belonged or appertained thereto; but a very inconsiderable Part of the said three Counties (if any) being inhabited or settled upon, at the time the Dutch were in possession of the said Jerseys and New York, and the said three Counties were not, then, looked upon or esteemed, in any man- ner, to appertain or belong to the said Jerseys or New York. Neither doth Defendant know, or believe, that it was, or is absolutely necessary for those who enjoyed the said greater Set- tlement to have, likewise, the Lands now called the three Lower Counties, for the Reasons in the Bill mentioned, or any othar Reasons; nor do the Inhabitants of the said Jerseys or New York make the least Pretence or Claim to the said three Counties, or any Part thereof, to the Knowledge or Belief of this Defendant tho' this Defendant believes it might be ad- vantageous, for those who enjoyed the said greater Settlements, to have, likewise, the said three Lower Counties, if they had any Right to the same. Hath heard, and believes it to be true, that, in or about the Year 1664, his late Majesty King Charles the Second took from the said Dutch the said great Settlement and Possession of the said Dutch at New York and New Jerseys, on the Eastern Side of the said River of Delaware, and all Lands appertaining to the said great Settlement. But denies that he either knows, or believes, or ever heard, that the said three Lower Counties were then looked upon, or esteemed, to be Part of, or appertaining to, the said Provinces of New York and New Jerseys, or to be then the Right of, or in the Possession of the Dutch, or that his said late Majesty King Charles the Second, by virtue of such his Conquest from the Dutch became, for the first time, seized and possessed, in Right of his Crown, of the said three Lower Counties; on the contrary, the said three Lower Counties were, as Defendant most assuredly believes, long before that time, the Right of, and belonged to, the Crown of England ; the same having been, before that time, granted by his said then Majesty's Royal Father King Charles the First to the said Cecilius Defendant's Great Grandfather, by the said Letters Patent, as aforesaid. Hath heard, and believes it to be true, that his said late BOUNDARY QUESTION. 97 Majesty King: Charles the Second did, by his Letters Patent under the Great Seal of England, bearing Date at Westminster on or about the 12th Day of March, in the 16th Year of his Reign, and in the Year of our Lord 1664, give and grant unto his Brother James then Duke of York, his Heirs and Assigns, very considerable Tracts of Land in New England, with divers Powers of Government over the said County thereby granted, as in the Bill is mentioned ; but Defendant, as to the several Tracts of Land and Premisses thereby granted to the said James, then Duke of York, craves leave to refer to the said Letters Patent under the Great Seal of England when produced, or the Exemplifiation or Enrollment thereof, alledged by the Bill to remain of Record in this Honourable Court. But denies, that he either knows, or believes, that the said Duke of York, by virtue of or under the said last recited Grant and Letters Patent, by his Governors, Deputy-Governors, and other Officers, or otherwise, became and was actually and really, or lawfully and rightfully, seized and possessed of or intitled to the said three Lower Counties of Newcastle, Kent, and Sus- sex, as belonging or appertaining to the said Provinces of the Jerseys and New York, or either of them, or as Part of, or ap- pertaining to, any of the Premisses so granted to him by any of the said Letters Patent of the 12th of March 1664, as is set out and pretended in and by the Bill. On the contrary, the Defendant hath heard, and believes, that the said Cecilius Lord Baltimore, and others, the Defendant's Ancestors, both before and after the said Year 1664, and from time to time, from the Grant of the said Charter in 1682, until as herein after is mentioned, did and exercised all Acts of Ownership, Proprietorship, and Government, within the said three Lower Counties, as absolute Lords and Proprietors there- of, and that they had a good Right and Title so to do. Doth not know, or believe, or ever heard, save from the Plain- tiffs and their Agents, that the said three Lower Counties were ever in the Possession of the Dutch, or were Dependents upon, or belonging, or appertaining to, the said Great Settlement of the two Jerseys and New York, as by the Bill is suggested. On the contrary apprehends and believes, the same were always dependent upon, and belonging to the Province of Mary- land, and fully comprehended and included within the Limits and Bounds described in the said Charter of Maryland to the said Cecilius the Defendant's Great Grandfather as aforesaid. And the Defendant insists, that the said Duke of York had no Right to grant the same away to any other Person, as is alledged and pretended by the Bill. 7— Vol. XV. 98 PENNSYLVANIA AND MARYLAND Hath heard, and believes it to be true, that, after his said late Majesty King Charles the Second had made such Grant in 1664, as aforesaid, to the said James Duke of York, a certain Treaty was concluded at Breda, between his said late Majesty King Charles the Second and the States-General, about the time in the Bill for that purpose set forth and mentioned ; and that the States-General, by such Treaty, ceded and yielded, to his said late Majesty, all places whereof his said late Majesty had been in Possession on the 10th of May 1667, as in the said Bill is al- ledged : To which Treaty the Defendant, for his greater Cer- tainty, craves leave to refer: Hath also heard, and believes, that War was, afterwards, de- clared between England and Holland, in or about the Year 1672, as in the Bill is set forth. And that afterwards, and for ought the Defendant knows to the contrary, in or about the Month of July 1673, the Dutch entered into and upon their former said great Settlement, upon the Lands now called West and East New Jersey, and New Y r ork ; but denies, that he either knows, or believes, or ever heard save from the Plaintiffs and their Agents, that the Dutch likewise, upon or after such Declaration of War in 1673, entered into and upon the Lands now called the three Lower Counties of New- castle, Kent, and Sussex, as by the Bill is alledged. Hath heard, and believes, that to the contrary, in or about the Month of February 1673,asbythe Bill is alledged, a Treaty of Peace was concluded, between England and Holland, and that, by such Treaty, all Countries, which had been taken by each from the other, since the said last-mentioned War broke out in 1672, were agreed to be restored, by each of the contracting Parties, to the other, from whom the same had been taken : To which Treaty, for greater Certainty, the defendant craves leave to refer. Heard and believes, that in a very short time after the con- cluding the said last-mentioned Treaty of February 1673, his said late Majesty King Charles the Second, and the said James Duke of York, sent over Colonel Edmund And ross, afterwards Sir Edmund Andross, Knight, or same other Person or Persons, with Authority to receive from the Dutch the said Settlements of the two Jerseys and New York, and the Government thereof, to continue in the Command thereof under the said James Duke of York. But denies, that he either knows, or believes, or ever heard, save from the Bill, that the said Colonel Andross was sent over to receive, or did receive, from the Dutch, Possession of the said three Lower Counties of Newcastle, Kent, and Sussex, or anv Part thereof, at the time he so received from them their BOUNDARY QUESTION. 99 said Settlement of the Jerseys and New York, as by the Bill is suggested ; the same not having, to the Knowledge or Belief of the Defendant, been in the Possession of the Dutch during the War, or delivered by the Dutch to the said Colonel Andross, or been under his Command or Government under his said late Majesty King Charles the Second, and the said James Duke of York, or either of them, by virtue of any Commission or Com- missions from them, or either of them, or otherwise howsoever. Hath heard and believes that, immediately, or soon, after the giving such Commissions and Authority to the said Colonel Andross, the Colonel went over to the New East and West Jerseys and New York, and took Possession thereof, for, and in behalf » f the said James Duke of York, and continued in Possession thereof, and under the Authority and in the Behalf of the said James Duke of York, did, for many Years together, ex- ercise all Sorts of Acts of Propriety and Government whatsoever throughout the said Provinces of New East and West Jerseys and New York. But denies, that he either knows, believes, or ever heard, save from the Bill and from the Plaintiffs and their Agents, that the said Colonel Andross, under the Authority and in the Behalf of the said James Duke of York, or of his said late Majesty King Charles the Second, by virtue of such his Commis- sions, or otherwise, exercised all, or any, kinds of Acts of Ownership or Government, within the said three Lower Counties of Newcastle, Kent, and Sussex, or either of them, or any Part thereof, or that he was any wise in the Possession of the same, or had any Right thereto by virtue of his said Commission under the Crown, or the Duke of York, or otherwise, however, the Right thereto, as the Defendant is advised and insists, being in the Defendant's said Ancestors, under the said Letters Patent, as aforesaid. Hath heard, and believes it may be true, that his said late Majesty King Charles the Second, in order to make unto the said Duke of York a clear Title to the said Countries which had been before granted to him in 1664, as aforesaid, by his Letters Patent, under the Great Seal of England, bearing Date at West- minster on or about the 29th Day of June, which was in the Year of our Lord 1674, did give and grant, unto the said James Duke of York, his Heirs and Assigns the same Territories which were granted by the said former Letters Patent ; and did thereby give and grant unto the said James Duke of York, in Pee, divers Powers of Government over the said Country and Territory thereby granted, as in the Bill is for that purpose set forth ; but for his greater Certainty therein craves leave to refer to the said Letters Patent, when produced by the Plaintiffs 100 PENNSYLVANIA AND MARYLAND under the Great Seal of England, or to the Exemplification, or Enrollment thereof, alledged by the Plaintiffs to remain as of Record in this Court. Denies that he either knows, or believes that the said three LowerCounties of Newcastle, Kent, and Sussex, or any part there- of, were included in the said last mentioned Letters Patent to the Duke of York of 1674, or that any Interest therein, or Right thereto, passed to the said Duke of York, by virtue of the said recited Letters Patent, the same being, as the Defendant ap- prehends, and believes, no new Grant of any other Lands than what were before included in the said former Letters Patent to the Duke of York of 1664, but only a Confirmation of the very same Lands included in the said former Grant; which said former Grant or Letters Patent to the Duke of York no ways extended, as the Defendant is advised, and insists, to the said three Lower Counties of Newcastle, Kent, and Sussex, or either of them, or any Part thereof. Hath heard and believes, that the Plaintiffs late Father, about the time in the Bill for that purpose mentioned, peti- tioned his late Majesty King Charles the Second to grant him Letters Patent for a Tract of Land in America, as in the Plain- tiffs Bill is for that purpose set forth ; but having never seen the said original Petition, and knowing nothing thereof of his own Knowledge, must therefore crave Leave for his greater Certainty, as to the Contents of the Plaintiffs Father's said Petition, to refer to the said Petition itself, when produced. Doth not know, nor ever heard, save from the Plaintiffs Bill and from them and their Agents, and therefore cannot set forth, either as to his Knowledge or Belief, whether the Plaintiffs late Father was, or was not, about the time in the Bill for that purpose mentioned, or at any other time, called in by the Lords of the Committee of his said late Majesty's most Hon- ourable Privy Council for the Affairs of Trade and Plan- tations, to whose Consideration the said Petition (as the Plain- tiffs alledge by their said Bill) had been referred, as in the Plaintiffs Bill is set forth; nor whether the Plaintiffs said late Father was, or was not, then asked such Questions, or whether he did, or did not, make such Answer thereto, as in the Plain- tiffs Bill is for that purpose particularly set forth and alledged ; nor what was done or transacted thereon, nor what Proceed- ings were had relating thereto, the Defendant knowing thereof himself, but must refer the Plaintiffs to the Minutes and Orders of the said Privy Council, and Lords of Trade, for the same, th e Defendant being an entire Stranger thereto, otherwise than may appear by such Orders and Minutes. Hath heard and believes, that, pursuant to the Advice and BOUNDARY QUESTION. 101 Reports of the Lords of his said late Majesty's most Honourable Privy Council, and by Letters Patent under the ^Great Seal of England, of such Date as in the Bill is for that purpose men- tioned, his said late Majesty did give and grant, unto William Penn, Esq ; the Plaintiffs said late Father, his Heirs and Assigns, a Tract of Land in America, with divers Powei-s of Government ; and that, by the same Letters Patent, the said Country was erected into a Province, and called Pensilvania; but the Defend- ant, for his greater Certainty, as to the proper Bounds, and Limits, and Dimensions of the said Tract of Land, so granted by the said Letters Patent to the Plaintiffs said Father, and called Pensilvania, begs leave to refer to the said last men- tioned Letters Patent under the Great Seal of England, when produced by the Plaintiffs. [HERE HE SWEARS THE LOWER COUNTIES TO BE ON THE OTHER SIDE OF DELAWARE!] But is advised and insists that the said last-mentioned Letters Patent no ways granted, or gave, to the Plaintiff's late Father the said three Lower Counties of Newcastle, Kent, and Sussex, or either of them, or any Part of them ; the said Province of Pensilvania, being entirely in the West Side of Delaware River, and the said three Counties being on the East Side of the said River, and no ways included in the said last mentioned Letters Patent. Denies that he either knows, or believes, or ever heard, that the Lords of his said late Majesty's Privy Council thought the Consent of the said Duke of York necessary before the said Grant of Pensilvania passed the Great Seal, for the Reasons in the Bill for that purpose mentioned ; or particularly in respect of the said three Lower Counties of Newcastle, Kent, and Sus- sex, or that the said Duke of York's Assent to the said Grant was, accordingly, for that reason, had and given to the Right Honourable the Lords of the Committee of Plantations, or before a Committee of the Privy Council of his said late Majesty King Charles the Second, as by the said Bill is suggested. [HERE HE SWEARS PENSILVANIA CONTIGUOUS TO NEW JERSEY AND NEW YORK, THO' IN FACT THE RIVER DELAWARE IS BETWEEN THEM!] But hath heard, and believes it to be true, that the said Duke of York's Assent was had to the said Grant, and that the said Lords of the Council thought such Assent necessary to the said Grant of Pensilvania, before they passed the same, in regard that, as this Defendant believes, their Lordships might be apprized that the Provinces of New East and West 102 PENNSYLVANIA AND MARYLAND Jersey and New York, which were then in the Possession of tho said Duke of York, were contiguous to the said Tract of Land so passed by the said Grant, and intended to be erected into the said Province of Pensilvania, and therefore, their Lord ships were in some doubt whether it might not infringe upon the said other. Grant of the other Provinces of the Duke of ¥ork, called New East and West Jersey and New York, and for that reason, and that reason only, as the Defendant hath heard and believes, and not particularly, or at all, with respect to the said three Lower Counties of Newcastle, Kent, and Sussex, their Lordships thought it necessary to have the said Duke of York's Assent to the said Grant, before it passed the Great Seal. Hath heard, and believes it may be true, that the said Wil- liam Penn the Plaintiffs late Father, after obtaining the said Grant of Pensilvania, and to take away all manner of Objec- tions thereto from the said Duke of York, or any Claiming under the Duke, did make Interest and prevail upon the said Duke of York to confirm the same; and that the said Duke of York, afterwards, by Indenture dated on or about the 21st of August 1682, and made between such Parties as in the Bill are for that purpose mentioned, did remise, release and for ever quit claim, unto the said William Penn, his Heirs and As- signes, all his the said Duke of York's Right, Title and In- terest, whatsoever, to the said Tract of Land and Premisse s before granted by the said Letters Patent of the 4th of March 1680, To hold to the said William Penn, his Heirs and Assigns, for ever; but the Defendant craves leave, for his greater Cer- tainty, to refer to such Indenture when produced. Doth not know, but hath heard, that, soon after the Grant was made by the said King Charles the Second of the said Pro- vince of Pensilvania, and confirmed by the said Duke of York unto the Plaintiffs late Father as aforesaid, the said James Duke of York did make and execute two several Indentures of Feoffment, of the 24th of August 1682, to the Plaintiffs Father William Penn, as in the Bill is for that purpose particularly set forth and mentioned ; and that there might be such Coven- ant therein, on behalf of the said Duke of York, and such Power for Livery and Seisin, as in the Bill are mentiond ; but the Defendant, knowing nothing thereof of his own Knowledge, or otherwise than by Information, for his greater Certainty as to the Contents of the two last mentioned Indentures of Feoff- ment, and the Premisses thereby intended to be enfeoffed to the said William Penn, begs leave to refer to the said Inden- tures of Feoffment when produced. But denies that he either knows or believes, that any Right to, or Interest in, the said three Lower Counties of Newcastle, BOUNDARY QUESTION. 103 Kent, and Sussex, or either of them, or any Part of them, passed, or could pass, to the said William Penn the Plaintiffs late Father, by virtue of, or under, the said pretended Indentures of Feoffment, or either of them from the said Duke of York ; the said Duke of York having no manner of Right or Title thereto himself, under either of his Grants from the Crown before-mentioned. Hath heard, and believes it to be true, that the said Duke of York was so sensible he had no manner of Right or Title to the said three Lower Counties, or either of them ; and that his said Grants and pretended Feoffments to the Plaintiff's late Father in 1682, (if any such Feoffments there really and in fact were) were of no Validity or Force, with respect to the said three Lower Counties of Newcastle, Kent, and Sussex, that the said Duke of York, soon afterwards, in the Year 1683, obtained a Warrant from his late Majesty King Charles the Second for passing a Patent, whereby the said three Lower Counties were intended to have been granted to the said Duke of York ; and that a Copy of a Bill was afterwards prepared by his Majesty's then Attorney-General for that purpose ; but the same, as the Defendant hath heard and believes, was never passed into a Grant; for that the then Lord Baltimore, having notice thereof, presented a Petition to his Majesty, in opposition to the passing the said Bill under the Great Seal, and praying the same might not pass till his Majesty should be satisfied of the said Letters Patent formerly granted to Cecilius Lord Baltiomre, as afore- said, wherein the said three Counties of Newcastle, Kent, and Sussex, were comprized ; which as this Defendant hath heard and believes prevented the passing the said Bill into a Grant of the said three Lower Counties to the said Duke of York. And this Application of the said Duke to the Crown for a Grant of the said three Counties in 1683, is the strongest Evi- dence, as the Defendant is advised, and insists, that it was then apprehended the Duke had no manner of Right or Title thereto, and the not passing the said Bill into a Grant, upon the Lord Baltimore's Petition against the same, shews the Sense of the Crown to be so at that time. Knows nothing of the Plaintiffs late Father William Penn having taken Possession in Form, of the Premisses contained in the said respective pretended Indentures of Feoffment, or of any Tenants of the said Premisses, attorning to him, at the time, or in the manner, as by the Bill is suggested, or at any other time, or in any other manner, whatsoever; but, if the Fact really was so, and that the Plaintiffs late Father did really take Possession of the said Premisses in the manner as by the Bill is pretended, which the Defendant neither knows or 104 PENNSYLVANIA AND MARYLAND believes, yet, the Defendant is advised and insists his so doing- was a Wrong and Injury done tu the Defendant's said late An" cestor, the then Lord Baltimore, and an Infringement upon his Right and the Lands granted to him by the said Charter of Maryland, and that the Plaintiffs late Father had no manner of Right so to do ; and that the Plaintiffs ought not, now, to be permitted in a Court of Equity, to make use of the Injustice and Injury their late Father committed against the Defendant's said Ancestor, to support their Pretensions to what they have no manner of Right to. Knows nothing of the pretended Proclamation by the Plain- tiffs Bill, set forth to have been made by the Governor and Council of New York, in favour of the Plaintiffs late Father, and in support of the said two Indentures of Feoffment from the Duke of York in 1G82, and must, therefore, leave the Plaintiffs to make such proof thereof as they shall be able, or advised. But is advised, and insists, that such Proclamation (if any such really was made) could noways impeach the said Charter of Maryland, or the said Letters Patent to the said Cecilius in 1632, or take away any Right the Defendant or his said Ances- tors had to any Lands under the same. Believes the said three Counties of Newcastle, Kent, and Sussex, may be comprized and included within the Bounds and Descriptions of the said Indentures of Feoffment of 1682, but the Defendant is advised, and humbly insists, the Plaintiffs can have no right to the said three Counties, or any Part of them, under the said Indentures of Feoffment, or otherwise, for the Reasons herein before particularly mentioned; and particularly for that the said Duke of York, at the time of his making the said Feoffment, if any such Feoffments were made, had no manner of Right to the said Counties, or either of them, or any Part thereof. Hath heard, and believes it may be true, that the Plaintiffs late Father might enter into the peaceable Possession of the said Pro. vinee of Pensilvania about the time in the Bill for that purpose mentioned ; but denies that he either knows, or believes, or ever heard that the said William Penn, at or about the time in the Bill for that purpose mentioned, or at any other time, whatsoever, entered into the peaceable Possession of the said three lower Counties, as Proprietor thereof, as in the Bill is untiuely suggested, or that he had any right so to do, or that the said William Penn, or those claiming under him, now are, or ever were Proprietors thereof, or ever in the Possession thereof as such, or had any Right or Title thereto, whatsoever. But hath heard and believes that, there being a Dispute, between the Crown and the Defendant's Ancestor, touching the BOUNDARY QUESTION. 105 Right to the said three Lower Counties, and the Defendant's Ancestors having been under some supposed legal Disabilities, whereby they were restrained from exercising any Acts of Gov- ernment, and these three Counties not being of Extent and Riches enough to maintain a Governor of themselves, separately and independent of any other Province, the Governors of Pen- silvania, for the time being, for many Years past, have been permitted to have the Government, and to exercise a Jurisdic- tion, over the said three Counties ; but notwithstanding such Permission the said Counties were never, to the Knowledge or Belief of the Defendant, look'd upon as Part of Pensilvania, or that the Plaintiffs, or any of their Ancestors, had any Right or Title thereto : and, as an Evidence of this, the Defendant hath been informed and believes, and doubts not but it will appear, that the Plaintiffs and their Ancestors have, always, from time to time, upon his Majesty's approving of a Governor for their said Province of Pensilvania and the said three Lower Counties, signed a Declaration in Writing, declaring that his Majesty's Royal Approbation and Allowance of such Governor of Pensilvania, to be at the same time Governor of the said three Lower Counties upon Delaware River, should not, in any manner, be construed to establish any Right in them to the said three Lower Counties, or to diminish or set aside the Right claimed by the Crown thereto. So that the Defendant apprehends, and is advised that it ap- pears from this Declaration of their late Father, and themselves. from time to time, that he and they was and were sensible, he and they had no Right to the said three Lower Counties, but that he and they, and the Deputy-Governor of the said Province of Pensilvania under him and them, held the Government of the said three Lower Counties in Trust only for the Crown, or of such other as should make out a Title to the same under the Crown. Defendant doth not know, or believe, or ever heard, that the Plaintiffs, or their Father, ever received Quit-Rents from the In- habitants of the said three Counties as Proprietors thereof, but, however that might be, the Defendant is advised and in- sists that any illegal, or usurped, Possession of their's of the said three Lower Counties, or any Part of them, can in no wise support their Pretended Right or Title, thereto, as the same are clearly comprized within the Limits and Bounds described in the said Charter of Maryland granted to the Defendants said Ancestor Cecilius, as aforesaid. But the Defendant apprehends the original Right, to the said three Counties, cannot be drawn into Question in this Suit, and therefore the Defendant apprehends and is advised all these 10G PENNSYLVANIA AND MARYLAND Parts of the Bill, relating to the Grants from the Crown and the Duke of York, might have been very well omitted out of the Plaintiffs Bill. Denies that he either knows, or believes, or ever heard, save from the Plaintiffs Bill, that the Plaintiffs late Father William Penn, at his own Charge, peopled and settled the said three Lower Counties of Newcastle, Kent, and Sussex, or that the Plaintiffs, or their said late Father, have been at the Expence of 60,0001. Sterling in peopling, settling and improving the same, as is pretended by the Bill, or that they have been at any Ex- pence at all on that Account, to the Knowledge or Belief of the Defendant: for, on the contrary, the Defendant hath heard, and believes it to be true, that the Plaintiffs late Father was not at the Charge or Expence of peopling or settling the Pro- vince of Pensilvania, but that the settling and improving, even of that Province, was begun and carried on to the Expence, Hazard and Industry of divers People who purchased, at first, a very considerable Tract of Land from the Plaintiffs late Father, to the amount of 600,000 Acres, and were at the Trouble, Hazard and Expence of settling, peopling and cultivating the same, and paii the said Wiliam Penn a considerable Consid- eration for such Purchase; by which the Plaintiffs said Father was an immediate Gainer by the first settling and peopling the said Province of Pensilvania, and was not at the Hazard or Ex- pence thereof himself: And, as this was the Method the Plain- tiffs late Father took, in settling and peopling the said Prov- ince of Pensilvania, to which he had, as the Defendant believes, a Right, is very improbable to imagine he should be at any Ex- pence in settling, peopling, or improving the said Lower Coun- ties of Newcastle, Kent and Sussex, or either of them, or any part of them, to which he must, as the Defendant appre- hends, know he had no manner of Right or Title. Saith that if the said three Lower Counties of Newcastle, Kent and Sussex were part of, or appertaining to, the said Pro- vince of Pensilvania, which however he insists they are not, he believes they, together, would not make one of the most con- siderable and populous Provinces or Colonies for the Age thereof in America. And, for ought the Defendant knows to the contrary, the Number of Souls, in the said three Lower Counties only, ex- clusive of Pensilvania, may be esteemed to be 40,000, or near that Number. But denies that when he lately came out of the said Province of Maryland into the said three Lower Counties, he was at all surprized, as is suggested by the Bill, to see how much thicker of Inhabitants, or of beautiful Plantations, the said three lower Counties were, than the said Province of Mary- BOUNDARY QUESTION. 107 land was ; neither, in Fact, are there, to the best of the Defend- ant's Judgment and Belief, more beautiful Plantations in the said three Lower Counties than in the other Parts of the De- fendant's said Province of Maryland; nor are the same thicker of Inhabitants, as the Plaintiffs suggest. Knows nothing of the subsequent Letters Patent, in the said Bill alledged to have been obtained by the said Duke of York from his said late Majesty King Charles the Second, dated the 22d of March 1682, nor ever heard of the same, or of such Letters Patent having been obtained or granted, save from the Plaintiffs^ and doth not believe there are any such, and must, therefore, refer to the saniq, if any such were granted, under the Great Seal of England, when produced by the Plaintiffs ; but, if such Letters Patent, as are last mentioned, were obtained by the said Duke of York, and granted by his said late Majesty, as the Plaintiffs suggest, yet, the Defendant denies that he either knows, or believes, that the same were so obtained or granted in Trust for the Plaintiffs late Father, or in Pursuance or Per- formance of any the Covenants in the said pretended Indentures of Feoffment from the said Duke of York to the Plaintiffs said Father, or that the said Duke of York delivered the said Letters Patent under the Great Seal to the Plaintiffs Father immediately or at any time to the Plaintiffs Father, as is pretended by the Bill ; but the Defendant is advised and insists that the said last mentioned Letters Patent, if obtained by the said Duke of York, as by the Bill is suggested (but which this Defendant doth not believe) could not any way divest the Defendant, or any of his Ancestors, of the Right they had to the said three Lower Counties, or either of them, under their Original Charter of Maryland, from the Crown in 1632, such Letters Patent being long Subsequent in time to the said Charter. Hath heard, and believes it to be true, that the said Duke of York, about the time in theBill mentioned, was solhciting and endeavouring to procure from the Crown a further Grant of the three Lower Counties of Newcastle, Kent and Sussex, and that, before such Grant passed the Great Seal, it was stopt, upon a Pe. tition presented to his late Majesty King Charles the Second, on behalf of the said Lord Baltimo re, the Defendant's Ancestor and in support of his Right and Claim to the said three Lower Counties, as in the Bill is also for that purpose mentioned, and as herein before is mentioned and set forth. But denies that he either knows, or believes, that the said Duke of York so sollicited such further Grant of the said three Counties in pursuance of any Covenants with the Plaintiffs said late Father, as is pretended by the Bill, or that the Duke of York, in case he had procured such further Grant, intended 108 PENNSYLVANIA AND MARYLAND it for the Benefit of the Plaintiffs late Father, but for his own Use and Benefit. Hath heard, and believes it to be true, that such last men- tioned Petition, on behalf of the said then Lord Baltimore, having been presented to his Majesty, was, by his Majesty's Order in Council of such Date as in the Bill is set forth, re- ferred to the Consideration of the then Committee of Trade and Plantations, (and which Committee the Defendant believes did then consist of such of the Lords of his said Majesty's Most Honorable Privy Council as charged by the Bill.) Hath likewise heard, and believes it to be true, that the said then Lord Baltimor? was, by himself or Council, heard thereon, touching his Right and Title to the Land and Soil of the said three Lower Counties. But denies that he either knows, or believes, or ever heard, save from the Plaintiffs, that the Plaintiffs late Father was divers, or at any time, heard before the said Committee in his own Right, or touching any Right pretended to be in him to the said three Counties, or either of them, or any part of them ; nor did the Plaintiffs late Father then, as the Defend- ant either heard of, or believes, pretend, or insist upon, any Right in himself to the said three Lower Counties, or either or them, before the said Committee, but appeared, upon that oc- casion, as Agent only for and on the behalf of the said Duke of York, and to support the Duke of York's Pretensions to the said three Counties against the then Lord Baltimore, and not under the Pretence of any Right in himself. Denies that he either knows, or believes, that it appears any otherwise, by the Register Books, or any of the Proceedings of the said Committee of Council or Committee of Trade and Foreign Plantations ; or that, in the Prosecution of the said Suit, it is from time to time continually taken notice of, or expressly mentioned in the Minutes or several Orders made by the said Committee thereon, that the then Dispute and Differ- ence was a Dispute between the then Lord Baltimore and the Plaintiffs said Father, although the Plaintiffs Father did some time make Use of the said Duke of York's Name therein, as holding under the Grants and Covenants for further Assurance of the said Duke of York, as is alledged in and by the Bill ; but on the contrary, the Defendant apprehends, and doubts not but that it will appear from the said Register Books, and all the several Proceedings throughout the Prosecution of the said Dis- pute, from the begining to the end thereof, that the Duke of York himself, by his Council, and other Agents, did assist and interpose in the said Suit against the then Lord Batimore's Claim to the said three Lower Counties, and that the Plain- BOUNDARY QUESTION. 109 tiffs said Father was no ways concerned, or acted, therein, other- wise than as Agent to the said Duke of York, or that any of the said Proceedings before the said Committee declare, or so much as even Tacitely, or otherwise imply, or tend to shew, that the Grant of the three Lower Counties, which the Duke of York had obtained from the Crown after the said pretended Feoffment to the Plaintiffs late Father, or such further Grant which he was then sollicting to obtain, or either of them, were in Trust for, or for the Benefit of, the Plaintiffs late Father, as is pretended and suggested in and by the Bill. Doth not know, nor can set forth, whether there were, or were not, such several Minutes, Orders and Reports, of such particular and respective Dates, made by the said Committee of Council, upon, and during the Continuance of, the said Dis- pute, as in the Bill are particularly set forth and mentioned, the Defendant not having examined the Council Books, or com- pared the respective Dates, in the Bill mentioned, with the Entries thereof in such Books ; nor does he apprehend it at all Incumbent on him so to do, but begs to refer to the Council Books themselves when produced as to the several and particular Orders, Reports and Minutes that were so made by the said Committee pending such Dispute as aforesaid. Hath heard, and believes it to be true, such final Order in Council, and of such Date, was made, upon the said Dispute, touching the Right to the said three Lower Counties, between the then Lord Baltimore, and the Crown, as in the Bill is for that purpose set forth, but, for his greater Certainty therein, craves leave to refer to the said Original Order itself, or to th9 Entry or Minute thereof in the said Council Books when pro- duced. Saith he is advised and insists that the said last mentioned Order in Council is so far from being an Evidence of any Right in the Plaintiffs, or their said late Father, to the said three Lower Counties, that it makes no manner of mention of any Right pretended thereto by the Plaintiffs late Father, and the Division thereby directed of the said three Lower Counties is only between his then Majesty and the then Lord Baltimore. And the Defendant is advised and apprehends and insist that the said last mentioned Order in Council in 1685, could no ways legally deprive the Defendant, or his Ancestors, of the Right they had to the said three Lower Counties under their Original Charter in 1632 from the Crown, which was granted upwards of 50 Years before the making of that Order in Council ; and which the Defendant is likewise advised and insists was inconsistent with two former Orders in Council, of the 3d of July 1633, and of the 4th of April 1638. 110 PENNSYLVANIA AND MARYLAND And apprehends the said Orders in 1683 and 1638 ought to have the greater regard paid to them, because it is much more likely that the Intention of the Crown should be more clearly known in 1633 and 1638, so soon after the granting the said Charter of Maryland, as to the Lands comprized in such Charter, than upon a Dispute, afterwards, so many Years, as in 1685. Saith, for ought the Defendant knows to the contrary, it may be true that, during the said Contest in the Years 1688, 1684 and 1685, the then Lord Baltimore might produce to the then Committee of Trade and Plantations, a Copy of the said Order of the Committee of Foreign Plantations, dated the 4th of April 1638 herein before mentioned, in order to shew that former Board's Opinion touching the said Lord Baltimore's Right to the said three Counties, but the Defendant knoweth nothing thereof of his own Knowledge ; and the Defendant is an entire Stranger to the Charge ir. the Bill, that such Copy was not an attested Office Copy, and that, therefore, the Board refused to admit of the same as Evidence, or that they gave the said Lord Baltimore time to procure an authentick and attested Copy thereof, or that he afterwards declared to the said Board that he could not find the Original, whereby an attested Copy might be procured ; but, in case the Fact was so, which the Defendant neither knows or believes, it cannot, as the Defendant apprehends, considering all the Circumstances, throw any Imputation upon the Reality of the said Order made so many Years before; but the Defendant assuredly believes such Order was made, and the Copy thereof, produced by the said Lord Baltimore on the aforesaid Occasion, (in Case any such was produced) was a true and exact Copy thereof, and that the same was not any fictitious Paper drawn up to serve that, or any other, particular Purpose, as is most unreasonably insinuated in and by the Bill. Saith such Orders are, as the Defendant verily believes, now remaining amongst the Office Books and Papers at and belong- ing to the Office of Trade and Plantations at Witehall, where the Plaintiffs or their Agents may, if they please, peruse and inspect the same, and where the Defendant is informed, and believes, the Plaintiffs Sollicitor in this Cause hath perused and inspected the same, and had Copies thereof. Believes that the Plaintiffs Father had not made any very large, or very expensive Improvements in the said three Lower Counties, before the time of the said last mentioned Order of Council of November 1685 was made, nor doth know or believe that the Plaintiffs, said late Father, or the Plaintiffs, even at this Day, and to this Hour, have made any large or expensive Improvements in the said three Counties, or either of them, BOUNDARY QUESTION. Ill or that they, or either of them, have been at any Expenee in sett- ling, improving, cultivating, or peopling the said three Coun- ties, or either of them, or any part of them or that they "ever Mortgaged their Estate in England, or America, for that pur- pose, or that they have ruined, or distressed, or any ways im- poverished, their Family, by that means, as is suggested in the Bill. But believes that the Plaintiffs late Father, and the Plain- tiffs since his Decease, may have been at some Expenee, but to what amount cannot say or set forth, either as to his Know- ledge, or Belief, in making Presents to, and Treating with, the Neighbouring Indians, or the Indians inhabiting near the said three Lower Counties, and which the Defendant apprehends it was nceessary for them to do in order to support and promote their Trade with the Indians, and to keep up a good Corres- pondence with them as they are Proprietors of Pensilvania ; but denies that he either knows, or believes, that they were at any such Expenee on Account of the said three Lower Counties, the same being wholly, as the Defendant believes, on Account of their own Province of Pensilvania, which Borders upon or Adjoins to the said Counties. Verily believes that the Plaintiffs, or their said late Father, would not have been at any such Expenee, or at any Expenee at all, for the Benefit or Protection of the said three lower Counties, or the Inhabitants thereof, or for the promoting their Trade, and that all the Expences they were, or ever have been at, was for the Benefit, Safety, Promotion and Improvement of the said Province of Pensilvania only, and not of the said three lower Counties, or either of them. Doth not know, but believes it may be true, that the Plain- tiffs, or their late Father, may have Mortgaged their Lands in America, or their said Province of Pensilvania, but not for the Purposes or Reasons in the Bill suggested, and denies that he either knows, or believes, that they, or either of them, did, or could Mortgage the Lands of the said three Lower Counties, or either of them, or that any one would accept of a Mortgage of the same, or lend them any Money thereon, in regard, as the Defendant believes, they have no manner of Right thereto, and could not make the same a proper Security, or any security at all, for any Money that might be advanced them thereon. Doth not know, nor can set forth, either as to his Knowledge, or Belief, whether most part of the Lands in the said three Lower Counties are taken up and cleared, as by the Bill is sug gested, or what particular Part or Quantity of the said Lands in the said three Lower Counties are taken up and cleared, or what Number of Plantations there may be thereon ; but believes 112 PENNSYLVANIA AND MARYLAND that that there are many Towns, Villages, Churches, Meetings, Court-Houses, Assembly-Houses, Harbours, Piers, Dwelling- Houses, and other publick and private Structures, Buildings, Edifices and Improvements built and made therein. But denies that he either knows, or believes, or ever heard, save from the Plaintiffs and their Agents, that all this has been done, or that the said three Counties have been thus improved, by the great and continual Pains, Labour and Industry, or by the many repeated Toils and Hazards, of the Plaintiffs said late Father, or of the Plaintiffs, or either of them : on the con- trary, hath been credibly informed, and believes, that the said Counties were first settled and improved at the Expence, and by the Care and Industry of, the Defendant's Ancestors, Pro- prietors of Maryland, and Inhabitants of the said Counties themselves, and not of the Plaintiffs late Father, or the Plain- tiffs, who were at no Expence therein to the Knowledge, or Belief, of the Defendant. Knows nothing of any Purchases, made by the Swedes and Dutch, of any Tracts of Land within the said three Lower Counties, from the Indian Natives, Owners and Possessors of such Lands, for valuable Considerations, or otherwise, as pre- tended by the Bill, nor knows, or believes that any Right, to any such Lands, within the said three Lower Counties, did, or could, pass to, or vest in, the Plaintiffs said Father, under or by Vertue of such pretended Purchases from the Indians by the Swedes and Dutch. Neither knows any thing of any Purchases, by the Bill pre- tended to have been made by the Plaintiffs late Father, of th e Indians, Natives and Owners of any of the Lands comprized within the Limits of the said three Lower Counties, or of any Conveyance to the Plaintiffs late Father of any such Lands, as is suggested by the Bill, and, therefore, must refer to such Con- veyances (if any such there were) when produced by the Plain- tiffs and to such Proof thereof as they can make of the due Exe- cution thereof, or paying any Consideration for the same. But is advised and insists the Plaintiffs, or their late Father, can, or could, have no manner of Right, to any part of the Lands within the said three Lower Counties, under, or by Vertue of, any such pretended Purchases or Conveyances from the Indians, if any such there really were, and that the De- fendant's Right or Title thereto, under the said Original Charter of Maryland in 1632, can in no wise be affected thereby. Doth not know, nor can set forth, whether the Lands, comprized in the said pretended Deeds or Conveyances to the Plaintiff's Father from the Indians (if any such there be) do, or do not, of themselves, make up three fourths of all the Lands within the BOUNDARY QUESTION. 113 said three LowerCounties, or whether the other parts of the same three Counties have, or have not, been heretofore purchased by the Swedes and Dutch, the Defendant knowing nothing of such pretended Purchases from the Indians, or of the Conveyances by which the same are pretended to have been assured to the Plain- tiffs, or the said Dutch and Swedes, or of the particular Lands comprized therein, or otherwise than from the Allegations of the Plaintiffs Bill, by which the Defendant apprehends it is impossible for him, or any one else, to form any judgment, or Belief, concerning the same, the Description, made use of in the said pretended Purchase-Deed from the Indians, of the Lands thereby pretended to be passed, as set out by the Bilb being no other but, as far as a man can ride with a Horse in two days, and which may be more, or less, according to the good- nes» of the Horse or ability of the Rider, and is, as the De fendant apprehends, so uncertain a Description as can in no wise enable the Defendant to answer the Plaintiffs particular Charges relating thereto ; nor is it any ways material, as the Defendant is advised and apprehends, to the Matters in Ques- tion between the Defendant and the Plaintiffs whether the said pretended Conveyances from the Indians contain the whole, three Fourths, or any other particular Quantity, or part, of the said three Lower Counties? Denies that, to the Knowledge or Belief of this Defendant. any of his Ancestors knew of any such pretended Purchases of the Plaintiffs, or their late Father, from the Indians, or of their peopling, settling or improving the said three Lower Counties as suggested by the Bill, and, therefore, could not be said to have suffered the Plaintiffs Father to go on peaceably and quietly without the least Claim or Interruption whatsoever, to make such pretended Purchases, or to people, cultivate or im- prove the said three Lower Counties, after the said order in Council of 1685, as is alledged in and by the Bill, the Plaintiffs said Father never having made any such Improvements, or peopled or settled the said three Lower Counties, or either of them, or any part of them, in the manner as is alledged by the Bill, to the knowledge or belief of this Defendant. Doth not know, but believes it may be true, that the De- fendant's Ancestor, and, as the Defendant believes, the same Lord Baltimore as in the Bill is for that purpose named, pre- sented a petition to her late Majesty Queen Anne, in January 1708, and that such Petition, for ought the Defendant knows to the contrary, might be to the Effect in the Bill set forth ; but the Defendant, not knowing the same of his own Knowledge, craves leave to refer to the said Petition, itself, when produced. 8— Vol. XV. 114 PENNSYLVANIA AND MARYLAND Likewise believes that such last mentioned Petition was re- ferred, by her late Majesty, to the Consideration of the then Lords Commissioners for Trade and Plantations, about the time in the Bill for that purpose mentioned. Doth not know, but hath heard and believes, that the Plain- tiffs late Father, about the time in the Bill for that purpose mentioned, presented his Petition to her said late Majesty, in opposition to the said other Petition of the then Lord Baltimore and praying that the same might be dismissed, and, for ought this Defendant knows to the contrary, such Petition of the Plaintiffs late Father might be to the Effect in the Bill, but this Defendant, knowing nothing thereof of his own Knowl- edge, craves Leave to refer to the said Original Petition, when produced. Saith, that for ought he knows to the contrary, such Order might be afterwards made by her Majesty in Council on the said last mentioned two Petitions, as in the Bill is set forth and mentioned, but, knowing nothing thereof of his own Knowl- edge, craves Leave to refer to the said Order in Council, if any such there be, or the Entry thereof in the Council Books, when produced. Saith, he doth not know of his own Knowledge, but, for ought this Defendant knows to the contrary, it may be true, that such further Application, and such other Petition, was afterwards made and presented, in 1709, by the then Lord Bal- timore, and such Orders made by her late Majesty in Council thereon, as in and by the Bill for that purpose set forth and mentioned, but, knowing nothing thereof of his own Knowl- edge, craves Leave to refer to the said Petition and Orders, or the Entry thereof in the Council Books, when produced. Denies that he either knows or believes that the Plaintiffs late Father, afterwards, or at any time during his Life, was or remained in quiet and peaceable Possession of the said three Lower Counties, or either of them, or any part of them, in his own Right, as pretended by the Bill, or otherwise than as afore- said. Hath heard, and believes it to be true, that the Plaintiffs Father departed this Life about the time in the Bill, and, for ought this Defendant knows to the contrary, he might before such his Decease, duly make and execute his last Will and Testament in Writing, of such purport, and to such Effect, as in the Bill is particularly set forth. And that the Plaintiffs Mother might, afterwards, prove the same, in the manner in the Bill mentioned, but this De- fendant knowing nothing thereof of his own Knowledge, must refer to such Will, when produced, and such other Evidence as the Plaintiffs shall think fit to make concerning the same. BOUNDARY QUESTION. 115 Never heard of the Deed-Poll, or Appointments, by the Plaintiffs said Bill set forth to have been made and executed by Hannah Penn, the Plaintiffs Mother, in pursuance of the Power she had or was invested with by the Will of the Plaintiffs late Father, or of the several Allotments or Divisions thereby al- ledged to have been made by her of the Premisses in the Bill for that purpose mentioned, amongst the Plaintiffs, otherwise than by the Bill, and the same, as he believes, being in the Plaintiffs Custody or Power, he must therefore crave Leave to refer to the said Deed-Poll. or Appointment, when produced. Hath heard, and believes it to be true, that the Plaintiffs said Mother Hannah Penn, departed this Life, about the time in the Bill for that purpose mentioned, and that Dennis Penn her Son, in the Bill named, might also die, an Infant, and without Issue, about the time as therein is mentioned. Hath heard of the Indentures of Lease and Release, alledged by the Bill to have been made and executed by the Surviving Trustees of the last Will and Testament of the Plaintiffs late Father, pursuant to the Directions in the Apointment alledged to have been made by the said Hannah Penn, but, as to the Contents thereof, must refer to the same, when produced by the Plaintiffs, being an entire Stranger thereto. Knows nothing of the pretended Mortgage by the Plaintiffs Bill alledged to have been made by their said Father William Penn, to Joshua Gree, John AVoods, and others, for the Sum of 66001. or any other Sum, or of the said pretended Mortgage having lain at Interest for above 20 Years, as by tne Bill is sug- gested, or for any other Number of Years or Time, or of the Reconveyance pretended to have been made thereof by the Mortgages in 1729, neither did this Defendant ever hear thereof, save from the Bill, and from their Agents, and therefore must refer himself to the said Mortgage and Reconveyance, if any such ever were, when produced by the Plaintiffs. Denies that he either knows, or believes, or ever heard, save from the Bill, that the Plaintiffs upon their said Mother's de- cease, or at any time whatsoever, either entered into, or are now, in Possession of the said three Lower Counties or, either of them, or any part of them, or of all or any of the Lands, Tene- ments or Hereditaments therein, under or by Vertue of the said pretended Will, Appointment, Conveyance, Mortgage, and Re- conveyance, as by the Bill is untruly suggested, nor doth know or believe that the Plaintiffs, or either of them, have any Right or Title thereto undersuch pretended Will, Appointment, Con- veyance, Mortgage, or Reconveyance, or otherwise howsoever. Denies that he either knows or believes that the said Hannah Penn, after the Decease of the said William Penn, did enter into, 116 PENNSYVLANlA AND MARYLAND or from the time of the death of the said William Perm, down to the time of her own death, was in the quiet and peaceable Possession of, the said three Lower Counties, or of all the Lands, Tenements, and Hereditaments therein, or any part thereof, in her own Right, or as a Trustee, or in Right of, the Plaintiffs, or either of them, as by the Bill is suggested, or in any other manner whatsoever than as Intruders upon the Right and Pro- perty of this Defendant and his said Ancestors, and subject thereto, and to the Right claimed thereto by the Crown as aforesaid. Neither doth know or believe, or ever heard, save from the Plaintiffs, that the said William Penn, in his Life-time, or the said Hannah Penn, after his death during her Life, or the Plaintiffs since her death, down to the time of the Plaintiffs said Bill, or since, respectively, and frequently from time to time as Occasion required, appointed Deputy or Lieutenant-Gov- ernors of the said three Lower Counties, in the manner pre- tended and suggested by the Bill, or in any other manner what- soever then as before mentioned and set forth by this Defend- ant. Or that they, or either of them, begun, continued, or carried on the great Improvements now in being thereon at their own sole and prodigious Expence, as pretended by the Bill, or that they, or either of them, were of any Expence on that Account, other than what they were obliged necessarily to be at for the Benefit and Safety of their said Province of Pensilvania. Believes that the Plaintiffs, and their said late Father and Mother, were so well apprized and conscious of the Right of this Defendant, and his said Ancestors, to the said three Lower Counties, and of the Weakness and Injustice of their Preten- sions thereto, that they would never have put themselves to any Expences for the improving or cultivating the said three Lower Counties upon so precarious and illegal a Pretence as they set up to the same, and which they must, as the Defendant believes, be sensible they could never support when properly and legally contested. Denies that he ever made such Application to the saidHannah Penn, for setting out and describing of the Bounds of the said other Province of Maryland and Pensilvania, during thelnfancy of the Plaintiffs, as is alledged and suggested in and by the Bill, or at any other time or times whatsoever, or that he this Defendant then, or at any other time or times whatsoever, or upon any Occasion whatever admitted to the said Hannah Penn, or to any other Person whatsoever, that he had no Right or Title to the said three Lower Counties, or to any part of them, as is untruly alledged by the Bill ; on the contrary, saith, he BOUNDARY QUESTION. 117 this Defendant, and all and every of his Ancestors the Lords Baltimore, to the best of his Knowledge and Belief, always, fi*om time to time, and upon every Occasion, claimed, main- tained and supported their Right and Title to the said three Lower Counties, and every part of them, in the best manner they were able, and never, in any manner whatsoever, admitted they had no Title thereto, and have been at very great Ex- pence from time to time in supporting their Right thereto, by Building of Fortifications in the said three Lower Coun- ties, to defend the Inhabitants thereof from the Indians, and in improving and cultivating the same. Denies that he, to the best of his Knowledge, Remembrance and Belief, ever made any such Representation or Proposals to the said Hannah Penn, or to any such or the like Effect, as is untruly suggested in and by the Bill, or that any such Agree- ment was, thereupon, made, entered into or executed by and between the said Hannah Penn and this Defendant as by the said Bill is suggested; but believes it to be true that the said Hannah Penn, by her Self and Agents, and others on her be- half, did apply to this Defendant, about the Year 1723, and made some such or the like Representation and Proposals to this Defendant, as the Plaintiffs by their said Bill suggest this Defendant made to her, and desired and requested this Defendant to enter into an Agreement in Writing, in Order to settle the Boundaries of the said two Provinces of Maryland and Pensil- vania, and for the Prevention of all Contention and Differences between the Inhabitants of the said Provinces in the mean time. And this Defendant, thereupon, and at the earnest Request and Desire of the said Hannah and others on her behalf, consented to enter into some Treaty of Agreement for that purpose. And he this Defendant did, accordingly, afterwards, to that end, and about the time in the Bill mentioned, to the best of his Remembrance and Belief as to the time, enter into and exe- cute an Agreement with the said Hannah Penn, to the Purport and Effect in the Bill particularly set forth, but for his greater certainty thereof craves Leave to refer thereto, when produced And believes that one part of such last mentioned Agreement was executed by the said Hannah Penn and the other Persons in the Plaintiffs Bill for that purpose named, and delivered to this Defendant, but, not having the same in his Custody or Power, cannot set forth the same as is prayed by the Plaintiffs Bill, but as to the Contents thereof refers to that Part thereof in the Plaintiffs Custody, when produced. Hath heard and believes that such Proclamations were, after- wards, duly published in the said Provinces of Maryland and Pensilvania, by the Deputy-Governors thereof, in Pursuance 118 PENNSYLVANIA AND MARYLAND ani Performance of the said Agreement, and about the times, in the Bill particularly set forth, and that such Proclamation published by the Deputy-Governor of Maryland was mentioned to be published by the Directions of this Defendant. Hath heard, and believes it to be true, that Matters remained at quiet, under the said last mentioned Agreement, not only during the 18 Months therein mentioned, but for a much longer time, in Vertue and Consequences, and under the true Intent Meaning and Equity of the said Agreement, as by the Bill is alledged. But denies that he either knows, or believes, that the Plain- tiffs late Mother, or the Plaintiffs, on their Parts, justly and truly observed the said Agreement, by not granting out or pre- tending to grant out any Lands near to the Borders of Pensil- vania or Maryland, or in the manner by the Plaintiffs Bill pre- tended ; on the contrary, saith he hath heard and believes that the Plaintiffs late Mother during her Lifetime, and the Plain- tiffs after her Decease, and pending the Continuance of the said last mentioned Agreement, frequently granted out Lands, near the Borders of the said Provinces, and Lands within the said three Lower Counties, without any legal Right or Au- thority for their so doing, and with a View and Design of de- feating and depriving this Defendant of his Right and Title to the said three Counties, and of Extending their Grants and Set- tlements far beyond the true Limits and Bounds of their said Grant or Charter of Pensilvania, and in direct Breach and Op- position of the said Agreement, to the great Wrong and Injury of this Defendant. Denies that the exact Marks and Bounds of the said Prov- inces of Maryland and Pensilvania, not being markt out pur- suant to the Design and Intention of the said last mentioned Agreement, was any ways occasioned by any Neglect in this De- fendant, this Defendant being then ready to have it done, on his part and amicably to have adjusted all Matters then inDifference or Dispute between this Defendant and the Plaintiffs or their said Mother ; and the not doing the same was wholly occasioned by the then neglect of the Plaintiffs and their said late Mother. Saith that he, on his Part, observed and performed the said Agreement, in every respect, as far as he was able, and was then on his Part, ready to have carried the same into Execution, if the Plaintiffs, or their said late Mother in her Life-time, would have concurred with him therein. Denies that he either knows, or believes, that the Plaintiffs said Mother, or the Plaintiffs, or either of them, did justly and honestly fulfil and perform the said Agreement, on their Parts, according to the true intent and meaning of the same, BOUNDARY QUESTION. 119 as by the Bill is suggested, but saith that be did, on his Part, fully and truly, and in all points and in every respect perform and fulfil the same. Denies that he did, bj r himself, or any of his Governors, Commission Officers, and other Servants, to the best of his Knowledge and Belief, from the time of his first entering into the said Agreement, or at any time pending the Continuance thereof, make many, or any large or extensive Warrants, or Grants of great Quantities of Lands, to sundry Persons, with- out specifying where or in what Places the same were to lie, with intent that such Grantees should seat down upon, or take up, any Lands belonging to the Plaintiffs, or either of them, or their said late Mother, or any of their Ancestors, as is un- truly alledged in the Bill, or with any View, or Design of ex- tending his Settlements beyond the true Limits and Bounds of the Grant made to the said Cecilius, this Defendant's Ancestor. Saith he did on or about the first Day of July 1731, as in the Bill is for that purpose mentioned, present, or cause to be pre- sented, to his present Majesty, such Petition, praying his Majesty to order the Proprietors of Pensilvania, to join with him in settling and ascertaining the Boundaries of the said two Provinces of Maryland and Pensilvania, as in the Bill is for that purpose mentioned and set forth, and which, he humbly apprehends and conceives, is a clear and manifest Evidence of this Defendant's real Intention and Desire of per- forming the Agreement herein before mentioned, and shews the not performing of that Agreement, or the not carrying it into Execution, was not owing to any Neglect or Design in this De- fendant, as is pretended by tbe Bill, but to the Neglect or De- sign of the Plaintiffs. Denies that he either knows, or believes, that he prayed or desired by such his last mentioned Petition to his Majesty, presented on the first of July 1731 as aforesaid, that the Bounds of the said Provinces might be ascertained or settled upon the foot of the said Order in Council of 1685, or said other Order in Council of 1708, as suggested by the Bill; neither did this Defendant by such Petition, to the best of his Knowledge or Belief, exclude, or intend to exclude, the said three Lower Counties of Newcastle, Kent, and Sussex, or either of them, or any part of them, from being adjudged and determined to be part of his said Province of Maryland, or thereby mean, or intend, to leave to the Plaintiffs the said three Lower Counties, or either of them, or any part of them, as by the Plaintiffs said Bill is insinuated. Denies that he ever applied to the Plaintiffs, or either of them, or any other Person, or Persons on their Behalf , before the 120 PENNSYLVANIA AND MARYLAND presenting such his Petition to his Majesty in July 1731 as afore- said, not to give up to him the said three Lower Counties, but only to settle the Limits and Bounds of the said Provinces of Pensilvania and Maryland exclusive of the said three Lower Counties, or either of them, or any part of them, or that he pre- sented, or caused such his last mentioned Petition to be pre sented, to his Majesty, as aforesaid, in Order to spur the Plain- tiffs on, or to bring them to a Compliance with any such Pro- posal or Desire, as is untruly suggested in and by the Bill. But, on the contrary, this Defendant always look'd upon the said three Lower Counties of Newcastle, Kent and Sussex, and every of them, and every part of them, to be part of, and of Right appertaining' to, his said Province of Maryland, and always insisted upon his Right thereto as such, and never acknowledged or believed the Plaintiffs, or either of them, had any Right or Title thereto, whatsoever. Hath heard and believes his Majesty, by his Order in Council, of such Date as in the Bill, was pleased to refer this Defendants said last mentioned Petition to the Consideration of the Lords of the Committee of his Privy Council, for hearing Appeals and Complaints from the Plantations, and that their Lordships of the said Committee, by their Order, likewise of such Date as in the Bill, were pleased again to refer the said last mentioned Pe- tition to the Consideration of the Lords Commissioners for Trade and Plantations, as by the Bill is set forth, but, for his greater Certainty therein, begs leave to refer to such Petition, Orders, or the Minutes thereof, in the proper Register Books, when produced. Saith that, soon after this Defendant's Application to his Majesty by Petition as aforesaid, for settling the Boundaries of the said Provinces, and the Plaintiffs perceiving that this De- fendant was intent and resolved to proceed in such Application in Order to obtain his Majesty's Determination thereon, the Plaintiffs, with a View to put a stop to the same, made frequent Applications to this Defendant, and, at last, by their earnest Solicitations and frequent repeated Requests, prevailed upon this Defendant to enter into a Treaty with them for settling and determining the Bounds of the said Provinces amicably between themselves, and to drop the Application he had made to his Majesty by Petition in the manner before mentioned, which he admits he was prevailed upon by them to do, and, therefore did not solicit or obtain any final Order from his Majesty upon such last mentioned Petition. Denies that such last mentioned Treaty, between the Plain- tiffs and this Defendant, for the purpose aforesaid, was first proposed by this Defendant, or entered into by the Plaintiffs, BOUNDARY QUESTION. 121 or either of them, upon this Defendant's motion, Application, or Request, or of any Agent or Person concerned for this Defendant, or on this Defendant's Behalf, to the Knowledge or belief of this Defendant, as by the Bill is untruly suggested ; but, on the contrary, saith said last mentioned Treaty was first proposed by the Plaintiffs, and was agreed to, and entered into, by this Defendant, at the proper Instance, Desire and Request of the Plaintiffs, and upon their own Motion and Solicitation entirely. Saith that one of the Plaintiffs frequently waited upon this Defendant, at his house in Grosvenor Square, after such this De- fendant's Application to his Majesty by Petition as aforesaid, in order to prevail on this Defendant to come into such Agree- ment. Denies that he either knows, remembers or believes, that he this Defendant, in order thereto, or to bring about the last men- tioned Treaty, did apply by himself in Person to the Plaintiffs Sollicitor, or to the Plaintiffs, or either of them, or any other Agent of theirs, or Persons concerned for them, and press and desire to have a Meeting between the Plaintiffs and this Defend- ant in order to settle and agree the Matters in Difference between them, in the manner as by the Bill is untruly suggested ; but, on the contrary, the Plaintiffs pressed and desired this De- fendant to have a Meeting for that purpose, and to treat with them about the same. Denies that he did, then, or at any other time, declare that if the Plaintiffs would not agree thereto he would set up his former Pretence to the said three Lower Counties, as pretended by the Plaintiffs said Bill, in order to induce or bring the Plaintiffs to a Compliance with any such pretended Proposal or Accommodation, as is most untruly suggested in and by the Bill. Neither did this Defendant, by his entering into the said last mentioned Treaty, intend, or design, to make, or so much as conceive, or imagine that he should or could make, to himself, any great or undue Advantage thereby against the Plaintiffs by means of their pretended Ignorance of the Premisses, as is most untruly insinuated in and by the Bill. Neither did this Defendant, then, know or believe, nor doth he now know or believe, that the Plaintiffs, at the time of the said Treaties beine' set on foot, were wholly or utterly unac- quainted with, or Strangers to, the said old Disputes in 1683,1684, 1685, and 1709, as by the Bill is alledged, or that the Plaintiffs, or either of them, were at all, or in any manner whatsoever, Strangers to, or unacquainted therewith ; but, on the contrary, this Defendant verily believes the Plaintiffs were then thor. oughly, and in every respect, as well acquainted with all and 122 PENNSYLVANIA AND MARYLAND every the said former Proceedings and Disputes touching the Matters aforesaid, in the said several Years of 1683, 1684, 1685, and 1709, as they now are. Neither did this Defendant treat with them, or enter into the said last mentioned Treaty, with any View or Design, or even so much as an Imagination, that he could or should im- pose upon the Plaintiffs, or either of them, or take, or have any Advantage of them, upon any of the Accounts in the Bill contained, or any other Account whatsoever. Nor doth he now know or believe that the Plaintiffs, or either of them, were under any of the pretended Disadvantages in the Bill mentioned at the time of such last mention'd Treaty, as is suggested in and by the Bill. On the contrary, this Defendant saith he most assuredly believes the Plaintiffs were not only as well, but much better apprized, than this Defendant, of all and every the several Orders and Proceedings, and others Transactions, that had been before had and made touching the Boundaries of the said Provinces, and the several and respective Claims that had from time to time been made thereto, and that he this Defendant was under much greater Disadvantages, and much more liable to be imposed on, in such last mentioned Treaty, than the Plaintiffs. And verily believes that the Plaintiffs, and their Agents, had in View the gaining great Advantages from this Defendant by such Treaty, or, otherwise, they would not have so earnestly applied to this Defendant, and taken such Pains, and used such Endeavours, as they really did, to prevail on this Defend- ant to come into such Treaty. Saith that, pending such Treaty, and before they came to any Conclusion or Agreement thereon, this Defendant gave the Plaintiffs John and Thomas, and Mr. Paris their Sollicitor, and other their Agents, several Meetings, and at different Places, to receive their Proposals, and treat with them concerning the same ; but, whether such Meetings were had at the particular and respective times in the Bill for that purpose mentioned, this De- fendant doth not know, or remember, or can set forth, having made no Memorandum, or kept any Account thereof, and there- fore, this Defandant cannot set forth, either as to his Know- ledge, Remembrance, or Belief, the particular or respective Days on which such several Meetings or Treaties were had, though this Defendant believes that several Meetings were had between the 11th of June 1731 and 10th of May 1732. Believes he might, at some or one of the said Meetings, upon the sail last mentioned Treaty, produce, out of his Pocket, a Map or Plan of Pensilvania, which had been, many Years before, transmitted by one of his Agents in Maryland, and had been, BOUNDARY QUESTION. 123 by such Agent, as this Defendant verily believes, received from Pensilvania, and, with a Rule and Pencil, draw Lines thereon, but, in what particular Parts, this Defendant cloth not remem- ber, to denote in what manner he thought the bound Lines ought to run. But saith that he did not intend, at the time, or by the man. ner, of drawing the said Lines, to exclude from t 'in this De- fendant, and to include to and for the Plaintiffs, any thing but what he then apprehended the Plaintiffs had good Right to either in Law or Equity; whereas, this Defendant is since fully convinced, the Plaintiffs had no such Right to the said three Lower Counties. Saith he was guided by the said Map or Plan in such Treaty, this Defendant, of his own Knowledge, being then an entire Stranger to the said Peninsula, and every Part and Place therein, and knowing very little thereof but from Information, and the several Representations that were made to him thereof by the Plaintiffs and their Agents, a5d from the said Map and Plan, which this Defendant saith he hath since found, and been convinced, was greatly faulty, incorrect and untrue. Which said Map or Plan this Defendant saith was neither made by his Order, or Directions, but was made, as he verily believes, by the Plaintiffs, or their Ancestors, or their Agents, and sent by them to this Defendant's Agents in Maryland, and was made use of by this Defendant as the first that came to hand, this Defendant not then imagining that there was, or could have been, so great a falsity therein as he hath since dis- covered there really was. And the reason that this Defendant believes, that the said Map or Plan was made or framed by the Plaintiffs, or their Agents, is, for that, when this Defendant was treating with the Plaintiff Penn about the Bounds of the said Province, and the manner in which the Limits should be run, and when this Defendant produced the said Map or Plan out of his Pocket, and drew Lines thereon, as herein before is mentioned, the Plaintiff Penn himself, at the same time, produced a little Map or Plan, drawn with a Black-Lead Pencil, which was, as this Defendant observed and verily believes, in all things, alike to that which this Defendant so produced, and which the said Penn told this Defendant had been sent over, to him, from Pen- silvania, by Logan his Deputy-Governor, in order to treat with this Defendant about the Bounds of the said Provinces, and which said Plan or Map the said Plaintiff Penn made the same use of, by drawing Lines and otherwise, as this Defendant did of that he this Defendant produced. Saith that, for the reason before mentioned, he cannot set 124 PENNSYLVANIA AND MARYLAND forth or say on what particular Day such Meeting was had, when he so produced and mark'd the said Plan or Map as before mentioned, nor whether the same was or was not on the 20th Day of July 1731, as by the Plaintiffs said Bill is alledged ; neither doth apprehend it any ways material on what particular Day suchPlan or Map was so produced or mark'd by this Defend- ant as aforesaid, in regard this Defendant admits it was done at some or one of the said Meetings, pending the said last men- tioned Treaty, and before they came to any Conclusion or Agree- ment thereon. Believes he might at the said, or some other of the said, Meetings, but at what particular time or times he doth not re- member, nor can set forth, otherwise than that it was before the said 10th of May 1732, insist that his Northern Bounds for Maryland should extend Northwards as far as to within 15 Miles South of the City of Philadelphia in Pensilvania, which this De- fendant saith he humbly apprehends was, instead of being further, not near so far as what the just Bounds of Maryland ought to extend, agreeable to the Limits and Bounds de- scribed by the said Original Charter of Maryland. And denies that he then believed, or knew, or that he now believes or knows, or that the same in Fact is true, to the Knowl- edge or Belief of this Defendant, that the so extending the Northern Bounds of Maryland, to within 15 Miles South of Philadelphia, in the manner aforesaid, was much, or at all higher, or further, than the Northern Bounds of Maryland ought to extend. And saith that, for ought he knows to the contrary, the Plaintiffs, or their Agents on their behalf, upon this Defendant's insisting that his Northern Bounds of Maryland ought to ex- tend in the manner before mentioned, might desire that the same might not be agreed upon to extend so far Northwards, but only to within 20 or at most to within 18 Miles, of the said City of Philadelphia, as by the Bill is suggested ; but this Defendant doth not particularly remember the same and if the Plaintiffs, or their said Agents, did make any such Objection to the Ex- tent of the said Northern Bounds of Maryland, as the Plain- tiffs set out by their Bill, this Defendant believes he did re- fuse to Consent thereto, he then* and still, looking upon, and esteeming, the said Northern Bounds of his said Province of Maryland, as he then insisted upon them to extend, to be fully comprized and included within the Limits and Bounds described by the said Original Charter of Maryland, and that all the Lands comprized within such Bounds and Limits are properly Part of, and of Right appertain to, his this Defendant's said Province of Maryland and are not Part of, or belong or apper- BOUNDARY QUESTION. 125 tain to, the said Province of Pensilvania, as by the Bill is sug- gested ; nor were the Northern Bounds of the said Province of Maryland, as this Defendant is advised and humbly insists, confined by his Charter, as the Plaintiffs pretend, to the 39th Degree compleat, or to the beginning of the 40th Degree, but on the contrary, by the Original Charter do and ought to extend to the 40th Degree compleat. And is advised and conceives that the Plaintiffs agreeing 1 to the Boundaries to be settled, as mentioned in the said Agree- ment, cannot be look'd upon as giving them any such Merit as they would willingly ascribe to themselves by their Bill, or any Merit at all, but, on the contrary, it now plainly ap- pears, as this Defendant apprehends and believes, that the said Plaintiffs had, by the said Agreement, endeavoured to impose upon, and deceive, this Defendant in the settling the said Boundaries in manner after mentioned, and by pretending to give unto him that which was not theirs to give, and which they had no Right or Title to, being comprized within the Charter of Maryland, and no ways comprized within the Charter of Pensilvania, but which did not then appear to this Defend ant, who was, then, not thoroughly acquainted with the Sit- uation of the said Country, otherwise than as aforesaid. Saith, that whatever Objections may have been made by the Plaintiffs to the Proposals, were pretended, and colourable only, and made the better to conceal and gloss over their Designs upon this Defendant, and founded on an untrue Suggestion that the 40th Degree was compleat and ended where this De- fendant hath since found and discovered it is not; and were, as this Defendant verily believes, only barely mentioned, and that not with any Design or View of having any Weight or being agreed to by this Defendant, the same, as stated upon the face of the Plaintiffs own Bill, being most unreasonable and unjust, and what they could never expect this Defendant would agree to ; in regard this Defendant most assuredly be- lieves they themselves must know, that the utmost of the said Northern Limits of the said Province of Maryland, as set out by their Bill to have been agreed to by them, are clearly and expressly comprized and included within the said original Charter of Maryland, and were no Part of the Province of Pen- silvania, and were what the Plaintiffs had not the least Shadow or Colour of any legal Title to. Denies that he either knows, or believes that all, or any Parts, of the said Northern Limits of the said Province of Pensilvania, as set out by the Plaintiffs said Bill to have been agreed between them and this Defendant in the manner therein mentioned, were any Part of Pensilvania, or any ways included within the Char- 126 PENNSYLVANIA AND MARYLAND ter of Pensilvania, or could legally pass to the Plaintiffs by their Charter, or otherwise; but, on the contrary, were this Defend- ant's Right and Property long before such Treaty, or Agree- ment with the said Plaintiffs, under, and by virtue, of, the said original Charter of Maryland to the said Cecilius in 1632, as before is set forth.* Saith, he believes the Plaintiffs John and Thomas Penn did, at the said last-mentioned Meeting and Treaty, as before set forth, produce a Map or Plan, or pretended Map or Plan, of the Parts in questiou ; and for ought he knows, or remembers to the contrary, they, or one of them, or some one of their Agents there, might draw Lines on their said Map or Plan they then produced, to denote in what manner the then proposed Bound Lines should run, as by the Bill is set forth. Believes, that the manner in which it was then proposed the said Bound-Lines should run, being, as he has since discovered, so greatly for the Advantage and Benefit of the Plaintiffs, and so much to the Disadvantage and Injury of the Defendant, (and which the Defendant believes the Plaintiffs were then very sensible of, they being very well acquainted with the Situation of the several Parts of the said Peninsula) and the Defendant being not thoroughly — — therewith, and relying solely upon the Truth and Exactness of the said Map or Plan, by which he was greatly misled and deceived, as herein after is mentioned, the Plaintiffs were glad to close with the said Proposals, and to comply with the manner in which it was proposed the said Bound-Lines should run ; the Plaintiffs, as the Defendant verily believes, then well-knowing that the same would ex- clude great part of the said three Lower Counties, which were included with the Defendants Bounds of Maryland, from being part of Maryland, without including any Part, or any Tract of Land whatever, that the Plaintiffs had any Right or Pre- tensions to ; so that the Agreement, upon that footing, was, in effect, a giving up, from the Defendant to the Plaintiffs, of great Parts of the said three Lower Counties, which the De- fendant insists were his Property, without any the least Con- sideration moving from the Plaintiffs to the Defendant, as a Satisfaction or Equivalent for the same. Denies that the said Treaty was carried on, by the Defendant, on his Part, in the over-bearing manner as is untruly sug- gested in the Bill, or that this Defendant refused to recede from any thing he at first insisted on ; but, on the contrary, the De- fendant, pending the said Treaty, was prevailed upon to make *The Defendant's Agents had lost themselves, and he swears to the Answer they drew, and so here insists upon his Right by his Charter to the 43d Degree ; for that's the Northern Limit of Pensilvania. BOUNDARY QUESTION 127 great Concessions to the Plaintiffs, and which the Defendant never would have done, if he had had a thorough Knowledge and Insight into the true Situation of the several Parts of the said Peninsula; and if the said Map or Plan, from which the said Agreement was founded, had been a true and exact Map or Plan thereof. Saith, that the Plaintiffs, and for the Reasons before-mention- ed, as the Defendant verily believes, did agree that the said Map or Plan, so produced by the Defendant, should be engraved by Mr. Senex, in order to be affixed or annexed to, and to explain, the Meaning of the Agreement they should come to, as by the Bill is suggested; and that the said Mr. Senex, might be pro- posed or named by this Defendant, or some other on his behalf, and agreed upon as a more proper Person to engrave the said Map or Plan than the Person at first proposed and named by the Plaintiffs, if any other was named by them, which the Defendant doth not remember that there was. Believes, that the said Map or Plan was printed, or stamped, on the original Agreement afterwards executed on the 10th of May 1732. Believes there is No material Difference, between the Map or Plan so produced by the Defendant, and that printed or stamped on the said original Articles of Agreement of 1732. Believes he did, at some one of the Meetings pending the said Treaty, but whether particularly on the 2d of July 1731, as in the Bill, cannot remember or set forth, produce a Paper, con- taining Notes of some few things he proposed should be in- serted as Part of the said intended Agreement, and that such Notes were of the Defendant's own Hand-writing; but absolu- tely denies that the same were, or purported to be, compleat Notes of everything, or to contain the Substance of all the several Matters proposed as Part of the said intended Agree- ment; or that he proposed, desired or insisted, or that the Plaintiffs agreed, that such Agreement should be drawn upon the foot of those Notes only, as is insinuated in the Bill ; but the same were only some few Notes concerning the Matters in dispute, which this Defendant had committed to Writing as they occurred to his Mind, lest they might afterwards escape his Memory. Believes he read the same to the Plaintiffs, as his own Notes, and Part of his own Proposals; but not as entire or compleat Notes, or to contain all this Defendant's Proposals. Saith, that he cannot now, at this distance of time,upon his Memory, or otherwise, not having kept the said Notes by him, nor having any Copy thereof, set forth the particular Contents thereof, tho' whatever the Contents were, believes the same 128 PENNSYLVANIA AND MARYLAND may be contained in the Agreement that was afterwards exe- cuted between the Defendant and the said Plaintiffs. Saith, that he cannot set forth a full, true, and exact Copy thereof, at full Length, in the very Words, Figures, Letters, and Abbreviations thereof, as the Plaintiffs have required him to do by their Bill, the same being now lost, mislaid, or de- stroyed, as the Defendant believes ; such Notes, after executing the said Agreement, being disregarded and looked upon no otherwise than as waste Paper. Doth not know, or believe, that running a Circle at the dis tance of two Miles from Newcastle is, in any sort, contrary or repugnant to the Words of the pretended Agreement, which describes the Circle to be a Circle of 12 Miles, whose Semi- diameter must be 2 Miles, and of consequence its whole Diame- ter 4 Miles, which will make a Circle, or what would be com- monly called the Periphery of the Circle, 12 Miles or there- abouts, as the Plaintiffs alledge by their Bill. Believes, the Plaintiffs, or one of them, or some other Person on their behalf, did desire the Defendant to deliver to them his said last mentioned Note, or Proposal, in order to insert the same in the said intended Agreement ; but denies, that he at first agreed thereto, and afterwards said he had no Copy thereof, and therefore delivered it to his said Sollicitor, in the man- ner as by the Plaintiffs Bill is suggested, tho' the Defendant believes, that, upon the Plaintiffs desiring to have his said Notes, he might and did say, that he had no copy thereof, but would deliver the same to his Sollicitor, in order to give the Plaintiffs a Copy thereof : And that he the Defendant did then, accordingly, deliver the same over to his said Sollicitor, for the purpose before-mentioned ; and that He might make and give the Plaintiffs a Copy thereof, in order that the same might be inserted, and made part of the said intended Agreement ; and that he the Defendant, did consent and direct his said Sollicitor, to give to the Plaintiffs a Copy thereof. Hath heard, and been informed by his said Sollicitor, and therefore believes it to be true, that he did, in some few Days afterwards, give the Plaintiffs, or their Agent, a Copy of the Defendant's said Notes, as in the Bill; but denies, that he either knows, believes, or hath ever heard or been informed, by his said Sollicitor, or otherwise, that the Copy, so delivered by the Defendant's said Sollicitor, to the said Plaintiffs or their Agents, was very much, or at all, abbreviated from the orignal Notes so produced by this Defendant at the said Meeting 1 , as aforesaid ; but, on the contrary, the Defendant hath been in- formed, by his said Sollicitor, and therefore believes, that the same was a true Copy thereof, and no ways altered or ub- BOUNDARY QUESTION. 129 breviated from what it was when the Defendant so produced the same, as aforesaid. Saith, that he cannot answer, or set forth, whether the mate- rial Parts of the said Copy of such Notes, so delivered by the Defendant's said Sollicitor to the Plaintiffs or their said Agent as aforesaid, are, or are not, in the Words, or to the Effect, in the Bill, he having never seen such Copies, or known any thing thereof, save from the Information of his said Sollicitor, and therefore begs leave to refer, for certainty, to the said Copy, when produced by the Plaintiffs. Neither can the Defendant answer, or set forth, for the Reasons before-mentioned, at this distance of time, whether the material Parts of such Notes, so produced by the Defend- ant as aforesaid, were, or were not, in the Words, or to the Effect, in the Plaintiffs said Bill suggested, tbe Defendant not having the same in his Custody or Power, as before is mentioned. Nor can the Defendant, now, set forth where the said origi- nal Note, ur Proposal, now is, and therefore the Defendant cannot undertake to produce the same at the Hearing of this Cause, as the Plaintiffs pray by their Bill, which, otherwise, he would readily have done. But saith, that, if he should hereafter find the said Notes, he will be ready to produce the same at the Hearing of this Cause. Saith, he hath been informed by his said Sollicitor, and believes it to be true, that the Plaintiffs Sollicitor did, some time after such Treaty as aforesaid, and for ought the Defendant knows to the contrary, it might be on the 16th of August 1731, as in the Bill is set forth, deliver over to Mr. Sharpe, the Defend- ant's Sollicitor, a Draught of the intended Articles of Agree- ment, between the Defendant and the Plaintiffs, which had been prepared by the Plaintiffs Agents and Sollicitor, in order to be considered and settled by the Defendant. Hath heard, and believes it to be true, that the said intended Articles of Agreement might lay before the Defendant, and his Agents, for his and their Perusal, from the time they were so de- livered out by the Plaintiffs said Sollicitor, to about the be- ginning of May following; but the more exact time they so lay before this Defendant, as aforesaid, the Defendant cannot set forth. Admits, that he was assisted, in the settling the said in- tended Articles of Agreement, by Mr. Wynne his Council, and Mr. Sharpe his Sollicitor, as in the Bill is alledged ; but denies, that he was assisted therein by Mr. Senex or that Mr. Senex perused the same, otherwise than in regard to the Pro- 9— Vol. XV. 130 PENNSYLVANIA AND MARYLAND priety of some of the Terms and Expressions made use of in the said Agreement ; nor was this Defendant so much as once with the said Mr. Senex thereon, nor his Sollicitor, but once, as the Defendant is informed and believes, tho' the Defendant is in- formed he was often applied to by the Plaintiffs Agent as his Mathematician. But believes the said Mr. Senex was no otherwise concerned, than being consulted in relation to the Propriety of some of the Terms used in the said Agreement, and in engraving the Plate annexed to the said Articles ; in doing of which the De- fendant believes, he acted a very indifferent Part, and was looked upon to be, and was, as the Defendant verily believes, as much in the Service and Interest of the Plaintiffs, as of the Defendant. Neither was the Defendant assisted, in the perusing and sett- ling the said intended Articles of Agreement, by his Lieuten- ant-Deputy-Governor of Maryland, Mr. Ogle, as the Plaintiffs alledge by their Bill ; nor was the Defendant helped or assisted therein by any other Persons than as before mentioned. Saith, that, whilst the said Draught of the intended Articles of Agreement, lay before the Defendant for his Perusal an 3 Con- sideration, as aforesaid, several Alterations were made therein by the Plaintiffs and their Agents, as well as by the Defendant and his Agents; and particularly that the Clause mentioned by the Plaintiffs Bill to have been inserted in the said Articles, pending the time the said Draught lay before the Defendant for his Consideration's aforesaid, whereby it was provided, that in case a sufficient Quorum of the Commissioners to be named on either side, should not, from time to time, according to the Appointments and Adjournments to be made for that purpose, attend to proceed in the marking and running out the Lines and Bounds aforesaid (for want thereof same could not be done with- in the time limited) then the said Agreement should be void ; and. in such case, the Party or Parties whose Commissioners should make such Default should forfeit and pay unto the other Party or Parties, whose Commissioners should attend, upon Demand, the Sum of 50001. of lawful Money of Great Britain, as in the Bill is set forth, was looked upon as much for the Benefit and Advantage of the Plaintiffs, as of the Defendant ; nor can the Defendant certainly say, whether the same was first pro- posed by the Defendant or his Agents, or by the Plaintiffs, or some of their Agents, but, to the best of the Defendant's memory and Belief, it was proposed by the Plaintiffs, or Mr. Paris, on their behalf. Nor doth this .Defendant believe the Plaintiffs would have complied with any Alterations proposed by the Defendant, or any of his Agents, if the same had not been apparently for their BOUNDARY QUESTION. 131 own Advantage; and whatever Alterations were made, they were such as the Plaintiffs, and their Agents themselves, thought as reasonable and necessary, upon their being mentioned and proposed, as the Defendant, or his Agents. Believes it to be true, that the several Alterations in the Plaintiffs Bill set forth to have been made in the Draught of the said intended Articles of Agreement, after the same had been delivered over to the Defendant and his Agents, as afore- said, were agreed upon between the Plaintiffs and this Defend- ant, and made part of the Agreement that was afterwards ex- ecuted. Defendant doth not recollect any other Alterations that were made therein, while the said Draught laid before the Defend- ant and his Agents, than as in the said Bill are set forth. Saith all the Alterations that were proposed to be made by the Defendant, or on his Behalf, in the said intended Agree- ment, being so very reasonable, were readily complied with, and agreed to, by the Plaintiffs and which the Defendant is not at all surprized at, since he hath discovered the great Advantage they had a design and view of gaining over the Defendant by the said Agreement, and the great Disadvantage that was likely to accrue therefrom to the Defendant, thro' the Error and Misrepresentation that was inserted in the said Map or Plan, upon the foot of which the said Agreement was founded ; and which the Plaintiffs, as the Defendant believes, knowingly and designedly, took advantage of, from the Defendant's Ignor- ance and Want of Knowledge of the several Places mentioned, in the said Map or Plan, and of the due and proper Situation and Distances thereof, without discovering the same to the De- fendant. For the Defendants saith, that, in the said Map or Plan, which was so made use of as a Gfuide to the Parties in making the said Agreement, there is a Place described and said to be Cape Hinlopen, in which Place there is no such Cape: and that the Place described or said by the said Map to be Cape Cornelius, is the true Cape Hinlopen, originally so called by the Dutch, and so described in their Maps ; the Signification of which Word Hinlopen, in the Dutch Language, is, going in, from the Dutch Word Hinlopen and the same, in the Plaintiffs pretended Deeds of Feoffment, is called Cape Hinlopen, alias, the Whore-Kilns, which formerly were there, or thereabouts, and are so described in the said pretended Agreement ; which was a great Imposition upon the Defendant and his Agents, and grsatly misled them therein, in regard the due East and West Line that was agreed upon to be drawn a,-cross the Peninsula, was to begin, on the East Part of the Place, in the said Plan, or Map, called Cape 132 PENNSYLVANIA AND MARYLAND Hinlopen, but ought to have oeen from that Place only which in the said Map is called Cape Cornelius. Believes, that the said Draught of the said Articles of Agree- ment, was afterwards, about the Month of May 1732, as in the Bill, delivered over by the Defendant's Sollicitor, to the Plain- tiffs, in order to be prepared and made ready for Execution, and to be engrossed in the manner the Defendant and the Plain- tiffs, and their several Agents, had agreed upon, as before set forth ; and that six Parts thereof, were accordingly, soon after- wards engrossed, and duly executed by the Defendant and the Plaintiffs Thomas and Richard Penn, on the 10th of May 1732, in the manner as set forth in the Bill. And believes, that the said Articles of Agreement, so exe- cuted as aforesaid, bore Date, and contained such Recitals and particular Covenants, and were of such Purport and Effect, as in the Bill are particularly mentioned and set forth; but, for bis greater Certainty, as to the Substance and Contents of the said original Articles, begs leave to refer thereto, when pro- duced. Hath heard, and believes it to be true, that, during the time the said Draught of the said Agreement was so under Consid- eration, as aforesaid, and before the same was executed, the said Map or Plan was carried to the said Senex to be engraved, and was engraved by him, and that the Plaintiffs and the De- fendant jointly paid the said Mr. Senex for the same, as in the Bill is mentioned; and that the said Mr. Senex was desired, and did give his Opinion, in Writing, upon the Propriety and Fitness of the Terms and Expressions made use of in the said Draught of the said Agreement ; but denies, that the same was so done by the said Mr. Senex at the Desire and Request of the Defendant only, but as well as at the Desire and Request of the Plaintiffs and their Agents, as of the Defendant. Saith, that the said Senex was then, and still is, an entire Stranger to the Defendant, in so much that the Defend- ant doth not believe he should know him if he was to see him; and he was named only upon that occasion as the most known and properest Person for that purpose, and not as any Acquaintance, Friend, or Servant of the Defendant's. Believes, that, soon after the Execution of the said Agree- ment, and as the Defendant believes, on the 12th Day of May 1732, the Plaintiffs and the Defendant did, severally and re- spectively, execute such several Commissions, as in the Bill are for that purpose mentioned, authorizing Commissioners therein named, or any six, five, four, or three of them, to mark, run, and lay out the Bounds so agreed upon. Doth not certainly know, nor can set forth, whether the said BOUNDARY QUESTION. 133 several Commissions (that is to say) that executed by the De- fendant, and that so executed by the Plaintiffs, were or were not exactly alike, and agreeable each to the other, in Form and Sub- stance, tho' he hath been informed and believes, they were alike and agreeable, each to the other, only changing the Name and Additions of the Persons who granted the Powers and Authori- ties thereby given, and to whom the Powers and Authorities were granted, as in the said Bill are mentioned. But, for his greater Certainty therein, and as to the Substance and Contents of the said several Commissions, craves leave to refer to the same when produced. Hath hard, and believes it to be true, that, some short time after the Execution of the said Articles of Agreement, and re- spective Commissions, and, for ought he knows to the contrary, on the 20th Day of May 1733, as in the Bill, the Plaintiff Thomas Penn left this Kingdom and embarked for Pensilvania, where, he soon afterwards, as the Defendant hath likewise heard and believes, arrived, and has continued there, to this time. Believes, and hath heard that the said Thomas Penn carried over with him thither the said Commission, executed on the Plaintiffs Part, and also one Part of the said original Articles of Agreement, executed as aforesaid. And the Defendant, by the same Ship in which the said Thomas Penn went, sent over to his Deputy-Governor at Mary- land the said Commission, executed on the Defendant's Part, and also, one Part of the said original Articles of Agreement, executed as aforesaid, and, some short time after, sailed him- self to, and arrived at, his said Province of Maryland, as in the Bill is mentioned. Denies, that he endeavoured, or contrived, to take to himself on his own Part all, or any, the Benefit which under the said Articles might possibly result to him, and, at the same time, to deprive the Plaintiffs of all or any manner of Benefit which under the said Articles could possibly result to them, as by the Bill is most untruly alledged. Neither hath the Defendant, nor all, or any one, of his said four Commissioners, by his Direction, Advice, Consent, Privity, or Knowledge used all imaginable, or any, Arts and Methods, to frustrate and evade the »aid Articles of Agreement, or to prevent the making out the Lines and Bounds pursuant to the same and the true meaning thereof, for the Reasons, or in the manner, as is pretended by the Bill. Denies that he either knows, or ever heard, save from the Plaintiffs or their Agents, nor doth believe, that all of his said Commissioners, or any of them, or their near Relations, as the Plaintiffs charge by their said Bill, were possessed of Grants from 134 PENNSYLVANIA AND MARYLAND the Defendant or his Officers under his Authority for large Tracts of Land in general, without any Specification of the Place or Places where such Tracts should be situated or taken up, which Grants had not been located or seated, or that they, any, or either of them, were in hopes to have laid out such their Grants upon some improved or good Lands within the said Province of Pensilvania and the said three Lower Counties, any, or either of them, but were prevented by the Tenor of the said Articles of Agreement, as in and by the said Bill is alledged. Denies, that he was any ways prevailed upon or induced to fly from his said Agreement, by the Advice, Persuasion, En- treaty or Desire of the Defendant's said Commissioners, any, or either of them, or any other Persons pretended to be pos- sessed of like Grants, as pretended by the Bill, from the De- fendant, or his Officers, of great, or any, Quantities of Land in no certain or particular Place as by the Bill is suggested. Denies, that his said Commissioners, any, or either of them, ever writ, spoke, declared or mentioned to the Defendant, or to any of the Defendant's Officers, Agents or Servants who ac- quainted the Defendant thereof, that, in Case the Defendant would not perform, but would break, that Agreement, they themselves would raise and pay the 50001. Forfeit, or the greatest, or some, or any Part thereof, or to any such or the like Effect. Denies, that he ever heard, save by the Bill, or that he be- lieves, his said Commissioners, any, or either of them, ever de- clared or gave out that they could not, if the Bound Lines should be run as by the said Agreement was agreed, settle and locate their large Grants upon such valuable Lands as they hoped to have done by Encroachment, in case no Bounds had been agreed upon, or to any such or the like Effect, as by the Bill is suggested. Denies, that he, in order to oblige such his Grantees, as by the Bill is alledged, or for any other Purpose to the Preju- dice of the Plaintiffs, writ, spoke to, advised or consulted with many, or any, Persons in Maryland, or else-where, how, or in what manner, or by what means, to avoid the running and marking out the Lines in the manner and within the time agreed on, and yet, at the same time, to avoid incurring and paying the said 50001. Forfeiture in the said Articles provided, in any such Manner as set out and pretended in and by the Bill, nor was any such Means or Method found out, or agreed upon, for that Purpose as is suggested by the Bill, nor was any such pretended Method or Resolution ad- hered to by the Defendant and his said Commissioners, or any, or either of them, or any others, as is pretended by the Bill, BOUNDARY QUESTION. 135 to prevent the said Agreement being carried into Execution, nor any such previous Measures concerted for that purpose in the manner as by the Bill is alledged. Has heard, and believes it to be true, that it is, to this Time, and has long been, the usual, common and constant Method in the said Province of Maryland, as it has been in other Pro- vinces as he is informed and believes, to issue out Warrants to Persons, of a certain Number of Acres of Land, uncultivated and not taken up, within the said Province of Maryland at Large, without specifying in what particular Spot, Parish, Pre- cinct, Division or County, the same do or shall lie or be situated, and to leave such Grantees at liberty to find out, and set down upon, and appropriate to themselves, under such Maryland Grants at large, so many Acres as therein specified, in such Places within the said Province of Maryland, not before taken up and appropriated, as they like best,' as in the Bill is alledged. Likewise believes, that many of such Maryland Warrants may be, now, extant, for large Quantities of Land at large, within the said Province of Maryland, which have not been yet seated upon or appropriated. Saith he believes most, if not all, of said Warrants that have been issued, and under which no Lands have been taken up or ap- propriated, are now of no manner of Force, nor can any Lands be now, as the Defendant believes, taken up or appropriated under such Warrant, for that, for these fifteen Years past or upwards, it hath been the usual Custom and Practice of the Defendant, and of his Deputies and Officers in his said Province of Maryland, to annihilate and make void all Warrants forLands, where Lands are not taken up under the same within a limited Time, and Proclamations have, from Time to Time, been issued from the Land-Office in Maryand, declaring all such Warrants void under which the Lands were not taken up within the Time limited in such Proclamation for that purpose, and, after the Expiration of Time limited by such Proclamations, the said Warrants under which Lands were not taken up as afore- said, were not allowed to take place. And the Reason for the Defendant and his said Officers not suffering such Warrants to stand out and be unappropriated is, for that it hath been, and still is, the usual Method and Practice for the Persons entitled to such Warrants, upon their locating and taking up Lands under the same to have a Grant issue to them of such Lands, and thereupon to pay a Fine or Sum of Money to the Defendant as Lord Proprietor. Saith that, for ought he knows to the contrary it may be true, tho' he never heard it any otherwise than from the Plain- tiffs, and therefore hath no Reason to believe, nor doth he be- 136 PENNSYLVANIA AND MARYLAND lieve, that several of such unappropriated Maryland Warrants or Grants at large are now in the Hands of any of the Gentle- men who were the Defendant's Commissioners for executing the said Agreement of 1732.. and several other considerable Men in the said Province of Maryland, as by the Bill is alledged, neither doth the Defendant know, nor can set forth, nor can form any Belief, what particular Grants, or of what particular Quantity of Land, or Number of Acres, within Maryland, if any such there are, are in the Hands or Possession of his said Com- missioners respectively, or either of them, or of any Person in Maryland, in regard such Grants, when made, are assignable from one to another, and, therefore, it is impossible the De- fendant should know, or can set forth . the particular Properties in such Grants; but denies that he either knows, or believes, or has been any ways informed, by any of such Maryland Grantees, or others, that such Maryland Grantees, or any, or either of them, did design or intend, by virtue of such pre- tended Maryland Grants, to set down upon and appropriate Lands which would, or which they apprehended would, by the Agreement in 1732 fall within the Plaintiffs pretended Bounds. Neither doth this Defendant know or believe, or has ever been informed, that any Disappointment, or expected Disap- pointment, in appropriating such Lands, was any Motive or Inducement to any of his said Commissioners to the not corn- pleating and executing the said Agreement of 1732, as in the Bill is suggested; but the Reason of the said Agreement not being carried compleatly into Execution by the said Commis- sioners, so far as related to them, was, as the Defendant hath heard and verily believes, entirely owing to the Conduct of the Plaintiffs Commissioners, and to the Difference in Opinion, that had happened between them and the Defendant's Com- missioners, with respect to the Method of running the Circle round Newcastle, and the Dimensions of such Circle, as herein afterwards is mentioned. Hath heard, and believes it to be true, that the Meetings between the Plaintiffs Commissioners and the Defendant's said Commissioners, for running the Lines pursuant to the said Agreement, were begun at Newtown, in Maryland, on the 6th Day of October 1732, and were continued to the 24th of November 1733. at the several Times and Places in the Bill for that pur- pose set forth and mentioned, and, for ought the Defendant knows to the contrary, and as the Defendant believes, such Meetings were continued, adjourned, and held again, at the several Times and Places in the Bill for that purpose men- tioned, but the Defendant, not being present at any of the said Meetings himself, cannot certainly set forth the several and BOUNDARY QUESTION. 137 particular Times and Places of the Meetings of the said Com- missioners of his own Knowledge, or in any other Manner than as he has herein before set forth the same. Denies that he either knows, or believes, or hath ever been in- formed, that all and every the Matters and Things in the Bill set forth, and mentioned to have been transacted and passed by and between the said Commissioners on both Sides, at their several Meetings as aforesaid, or any of them, were so trans- acted and passed by and between the Defendant's said Com- missioners, or any or either of them, in the Manner, or with the Views or Designs, as represented and alledged in and by the Bill, or with any other fraudulent Views or Intent or De- signs whatever, nor can the Defendant, either to his Know- ledge, Information or Belief, set forth the several Matters that passed between his said Commissioners and the Plaintiffs at their several Meetings aforesaid, in any other Manner than as he hath herein after set forth the same, the Defendant not being present at such Meetings, nor knowing anything thereof, otherwise than from what he hath heard and been informed from his said Commissioners. Saith that the Account he hath received from his said Com- missioners, of the several Matters and Transactions that were had between them and the Plaintiffs said Commissioners at their several Meetings aforesaid, is as follows, that is to say. The Defendant hath been informed, by his said Commis- sioners, and which Information the Defendant believes to be true, that on the 6th and 7th Days of October 1732 a Quorum of the Commissioners on each Side appointed for running the Bounds pursuant to the said Agreement, met, and adjourned to Newcastle Town, in Delaware, on 30th of same October. At which Time and Place the Defendant hath been, in like manner, informed, and believes, a Quorum of the Commission- ers met, on each Side, and the Defendant's Commissioners in- sisting to have the Charter of Pensilvania, and the Deed of Feoffment for Newcastle produced, the second Article of the Agreement, directing the Commissioners to run out the Circle mentioned in the said Charter and Deed of Feoffment at 12 Miles Distance from Newcastle, the Plaintiffs Commissioners produced Copies or Exemplifications thereof, and a Dispute aris. ing where they should fix the Centre of the Circle? the said Commissioners adjourned to the 1st of February then next. And the Defendant hath been, in like manner, informed and believes, that on the 1st Day of February the said Commission ers met according to their last Adjournment, and adjourned to the next Day, and that on the next Day being the 2d of February, the said Commissioners met again on both Sides, 138 PENNSYLVANIA AND MARYLAND when a Dispute arising concerning the Dimensions of the Circle intended to be run about Newcastle, they adjourned to five in the Afternoon, at which time, at the Request and De- ire of the Defendant's Commissioners, in order to prevent any further Doubts or Disputes, and that they might agree in Opinion touching the Dimensions of the said intended Circle, the Plaintiffs Commissioners were prevailed upon to agree to consult and hear Mathematicians on each Side. And the Defendant hath, in like manner, been informed and believes, that the Commissioners accordingly met again in the Afternoon of the 2d of February, according to their said last- mentioned Adjournment, but the Plaintiffs Commissioners ac- quainting the Defendant's Commissioners that their principal Mathematician was so ill of the Gout that he could not attend, and desiring the Matter in dispute, and Question thereon, might be reduced into Writing, and that, if their said Mathematician could not attend the next Day, they would produce his Answer in Writing, the Defendant's Commissioners, to prevent any Delay or Loss of Time, offered to go themselves to the Plain- tiffs said Mathematician, and to carry their Mathematicians with them, but which the Plaintiffs Commissioners, as the Defendant hath been informed and believes, would not comply with and refused, upon which the Defendant's said Commis- sioners reduced the Matter and Dispute in question into Writ- ing, and the same was delivered to the Plaintiffs Commissioners and then, the Commissioners on each Side agreed to adjourn till next Morning at ten at the same Place. According to which last Adjournment the Defendant hath likewise been informed and believes, the Defendant's Commis- sioners attended, being on the 3d of February following, and none of the Plaintiffs Commissioners attending, the Defendant's Commissioners, after having stayed a long time, ordered the Offi- cer of the Court-house to go and acquaint the Plaintiffs Commis- sioners that they the Defendant's saidCommissioners were there, and ready to go on Business, and to desire the Plaintiffs Com- missioners to come immediately and join with them, it being long after the Hour appointed. Some time after which, as the Defendant hath been informed and believes, two of the Plaintiffs Commissioners came, and, some time afterwards, a third of the Plaintiffs said Commis- sioners came, upon which the Defendant's Commissioners, after taking notice of their Delay and of the Time they had stayed, desired, as there was then a Quorum ou each Side, they might then proceed to Business without further Delay, and, as a Reason and Inducement for the Plaintiffs Commissioners to comply therewith, the Defendant's said Commissioners ac- BOUNDARY QUESTION. 139 quainted them, as the Truth really was as the Defendant hath heard and believes, that the Defendant's said Mathematicians were obliged to return to Maryland that Day, and the Defend- ant's Commissioners then produced and read the Answer of their Mathematicians, in Writing, to the Matter in Dispute and Question thereon as settled and reduced into Writing at their last Meeting, whereupon, and immediately after reading there- of, as the Defendant hath been informed and believes, one of the Plaintiffs Commissioners withdrew himself, by reason whereof there was not a sufficient Quorum of the Plaintiffs Commissioners left to proceed on Business ; upon which the De- fendant's Commissioners, after staying a considerable time in hopes either that the Commissioner of the Plaintiffs would return who had withdrawn himself, or that some other would have come, there being then, as the Defendant hath been in- formed and believes, five of the Plaintiffs Commissioners there then in that Town, but none of them coming, as the Defendant's said Commissioners were in Hopes and Expectation they would have done, the Defendant's Commissioners took notice thereof to the Plaintiffs Commissioners then present, and observed that it seemed very strange and surprizing to them that they did not meet to proceed according to the said Adjournment, and that, if they delayed in coming any longer, the Defendant's said Com- missioners would think themselves obliged to quit the Place and protest against their Non-attendance; upon which the Plaintiffs Commissioners said Mr. Hamilton, one of their Com- missioners was ill of the Gout, and not able to attend ; where- upon the Defendant's Commissioners agreed to go to Mr. Hamil- ton, if the Plaintiffs Commissioners desired it, but which as the Defendant hath been informed and believes, the Plaintiffs Commissioners did not agree to do; and the Defendant's Com- missioners having waited some time longer with their Mathe- maticians, and none of the Plaintiffs Commissioners coming, or sending any Message, the Defendant's Commissioners again repeated to the said two of the Plaintiffs Commissioners then present, the Necessity they the Defendant's said Commission- ers should be under of leaving the Place, and protesting against the Plaintiffs Commissioners for Non-attendance, if a sufficient Number did not, in a short time, come. And the Defendant's said Commissioners having stayed some time longer, to no manner of purpose, and it being then 35 Min- utes after 12 o' Clock, and consequently the Appointment for that Morning at an end, and the Defendant's said Commission- ers having heard that one of the Plaintiffs Commissioners had at the last Meeting declared the Affair to be transacted by them would not end there, but must be carried to England, from 140 PENNSYLVANIA AND MARYLAND whence, and from their wilfully neglecting to attend at the said Meeting, the Defendant's said Commissioners were fully satisfied and convinced, as they have since informed the Defendant, that the Plaintiffs Commissioners had nu other Intent than to break off any further Proceedings towards executing the said Agree- ment, and, therefore, the Defendant's said Commissioners, before and in the Presence of one of the Plaintiffs said Commissioners (one of the two who were before present having, some time be- fore, withdrawn himself) protested against the Non-attendance of the said Plaintiffs said Commissioners, reserving all Benefit and Advantage which did or might accrue to the Defendant by reason thereof, and then left the Place and returned to Mary- land. Admits that he the Defendant was then in Maryland, and that, on the Return of his said Commissioners to Maryland, and on the 15th of the same February, he the Defendant wrote a Letter, to the Governor of Pensilvania and one of the Plain- tiffs Commissioners, setting forth the Attendance of the Defend- ant's own Commissioners, and the Non-attendance of the Plain- tiffs, and that, were he the Defendant inclinable to make a strict Use of this voluntary Failure on the Side and Part of the Plaintiffs Commissioners, he the Defendant might disregard any further Notice or Execution of the said Agreement, and entitle himself, immediately, to the Forfeiture thereby mentioned by the Plaintiffs, but that, being fortunately in Person there, he the Defendant could recede in some measure from the Advantage he might claim from the Non-attendance of the Plaintiffs said Commissioners, which the Defendant's own Commissioners could not have done if the Defendant had not been there present himself, and signifiying that the Defendant was willing, and did thereby offer, and had given Directions to his own Commis- sioners, to meet the Plaintiffs Commissioners on the first Mon- day in May then next, at Joppa in Maryland, but with this Salvo of all Right, Benefit and Advantage he the Defendant might claim from theNon-attendance or Failure of the Plaintiffs Commissioners on the 3d of February, as herein before is men- tioned and set forth. Saith he hath been informed by his said Commissioners, and be- lieves it to be true, that after the Defendant had sent such Letter to the Governor of Pensilvania and one of the Plaintiffs Com- missioners as herein before is mentioned, that is to say, on the 28th Day of March 1733, the Plaintiffs Commissioners wrote a Letter to the Defendant's Commissioners, telling the Defend- ant's Commissioners that though they the Plaintiffs Commis- sioners did not punctually attend the said 3d of February, ac- cording to their Adjournment, that yet, that Afternoon, they BOUNDARY QUESTION. 141 were ready to attend and had given the Defendant'sConimission- ers Notice thereof, and also served the Defendant's said Com- missioners with a Notice to meet the 5th of that February, but that the Defendant's Commissioners had refused to attend, in- sisting on the said Failure in the Plaintiffs Commissioners; and by such Lettei the Plaintiffs Commissioners gave the De- fendant's Commissioners Notice that they would be ready to meet at Newcastle, on the 16th Day of April then next; in Answer to which Letter of the Plaintiffs said Commissioners, the Defendant saith he hath been informed by his said Com- missioners, and believes it to be true, that his Commissioners sent to the Plaintiffs Commissioners a Notice, in Writing, re- citing their former Default, and the Defendant's said former Letter offering to renew their Meeting (under a Reservation of his Benefit to the Forfeiture) and giving the Plaintiffs Commis- sioners Notice that they the Defendant's Commissioners would attend and meet them, at Joppa, the first Monday in May, agreeable to the Defendant's said Offer to them in his said Letter. Hath been informed, and believes it to be true, that on the said 7th, and also on the 8th and 9th of May 1733, the Commis- sioners, on both Sides, accordingly met, at Joppa, when the Defendant's Commissioners asked the Plaintiffs Commissioners if they had procured the Opinion of any skilful Mathematicians on the Question in Dispute between them at their former Meet- ing? Upon which the Plaintiffs Commissioners insisted there was no manner of Occasion, either to consult with Mathemati- cians, or to regard the Charter of Pensilvania, or Deed of Feoff- ment of Newcastle, in relation thereto, but only to pursue the Directions of the second Article of the Agreement ; but the De. fendant's Commissioners then insisted, as they had before at their former Meetings, that the said second Article of the Agree- ment had plain Reference to the said Charter and Dead of Feoffment, and that they must insist on explaining the Nature of the Circle to be drawn agreeable to such Reference, and the Opinion of their Mathematicians, unless the Plaintiff's Commis. sioners would satisfy them of theError of suchOpinion with that of other Mathematicians, which the Plaintiffs Commissioners re- fused to do, and after a very long Debate, as the Defendant hath been informed and believes, it was agreed between the Commis- sioners, on both sides, to meet at Mr. Norris's,in Philadelphia, on the 21st Day of May; with this Proviso that, if the Defendant's Commissioners could not, with Conveniency, return from Bur- lington, where they were going, so as to meet on that Day, then the Plaintiffs Commissioners agreed, on Notice given them by the Defendant's Commissioners of a Day t"> meet, at the same 142 PENNSYLVANIA AND MARYLAND Place, before their return to Maryland, they would meet them, at such Time and Place, accordingly, and that if, after such Meeting and Stay of the Defendant's Commissioners in Phila- delphia with the Plaintiffs Commissioners one Day, they could not readily agree upon an Adjournment, that then, the Defend- ant's Commissioners should not be longer detained from re- turning to their respective Homes, they the Defendant's Com- missioners accepting a Notice, in Writing, to be delivered to any of one them, to meet the Plaintiffs, at Mr. Paterson's, in Newcastle County, the 18th Day of June then next. Hath, in like manner, been informed and believes it to be true, that the Defendant's Commissioners not returning from Burlington so as to meet on the 21st of May, they the Defend- ant's Commissioners did, according to their said last mentioned Agreement, on the 25th of May send a Notice in Writing, to the Plaintiffs Commissioners, to meet them, at Mr. Norris's, on the next Day, being the 26th of May, at 10 of the Clock in the Forenoon. Hath likewise heard, and believes, that, on the said 26th of May, the said Commissioners, on both sides, accordingly met, and, in regard the Defendant's speedy Departure for England rendered it very inconvenient for the Defendant's Commission- ers to meet in June, as was before agreed on, and the Heats of the Months of June and July being such as would render the attending running the Lines very unsafe, the Commissioners, on each Side, agreed to meet, at the Town of Newcastle, on the 3d of September then next, in order to the running, and marking out the Lines according to the said Articles of Agreement. Hath been informed, and believes it to be true, that, on the said 3d of September 1733, the said Commissioners, on both Sides, accordingly met, at Newcastle, and continued together that Day and also the three next Days following ; all which Days, as the Defendant hath been informed and believes, were spent in debating what were the Dimensions of the Circle intended to be run? the Defendant's Commissioners insisting, agreeable to the Opinion of their Mathematicians, that the Circle to be run and marked out was the Circle mentioned and described in the Deed of Bargain and Feoffment of Newcastle and no other, and which they were informed and convinced, (as they have in- formed the Defendant and as the Defendant believes) by their Mathematician was such a Circle whose Circumference or Peri- phery is 12 Miles, and whose Diameter is somewhat less than four Miles, whereas the Plaintiffs Commissioners insisted the Circle to be run must be a Circle to be drawn at the Distance of 12 Miles from Newcastle, and that such a Circle whose Radius was 12 Miles was the only Circle they could run, and the Plain- BOUNDARY QUESTION. 143 tiffs Commissioners insisted to reject all Assistance from Mathe- maticians, as needless and unnecessary, and the Defendant's Commissioners, and the Plaintiffs thus differing, in their Sen- timents, about the Dimensions of the Circle directed to be run by the second Article of the said Agreement, the Commis- sioners, on both Sides, agreed to and did adjourn for further Consideration of the Premisses in Question, to the 14th Day of the then next November. Hath in like manner been informed by his said Commission- ers, and believes it to be true, that, on the 14th Day of Novem- ber 1733, the said Commissioners, on each Side, met according- to their said last Adjournment, and trie same Differances in Opinion still containing between them, that and the two next Days, and they not being able to agree in the Dimensions of the Circle to be ran, the Defendant's said Commissioners, on the 16th Day of the same No member, finding that nothing could be done, with any effect, with respect to the running the said intended Circle, proposed to the Plaintiffs Commisssioners to go to Cape Hinlopen, in order to proceed as far as they could towards the Execution of the said Agreement, and in running the East and West Line directed by the said third Article to be run from thence ; but which, the Defendant hath been informed by his said Commissioners and believes, the Plaintiffs Commissioners refused to agree to, till the running the Circle directed by the said Articles of Agreement was first done and compleated. Hath been informed, and believes, the said Commissioners, on each Side, continued sitting till the 24th Day of the same November, and neither receding, but each persisting, in their Opinions, and the Plaintiffs Commissioners refusing to take the Advice and Assistance of the Mathematicians for their Guide and better Information as the Defendant's Commission- ers frequently offered them and were desirous of doing, the De- fendant's Commissioners were oblidgrd, seeing nothing could effectually be done, at last to consent Avith the Plaintiffs Com- missioners to break up their Meeting without any further Ad- journment, and accordingly, as the Defendant hath been in- formed and believes, on the said 24th Day of the said November, an Instrument was drawn up, which was in the following Words (viz.) Whereas by Articles of Agreement, made the 10th Day of May 1732, between the Right Honourable Charles Lord Baltimore, Proprietor of the Province of Maryland, on the one Part, and the Honourable John Penn, Thomas Penn, and Richard Penn, Esqrs. Proprietors of the Province of Pensilvania and Counties of Newcastle, Kent and Sussex upon Delaware, on the other 144 PENNSYLVANIA AND MARYLAND Part, it was agreed and concluded that a certain Circle, in the said Articles mentioned, or so much thereof as should be requisite, and also that a due East and West Line, should be drawn, across the Peninsula mentioned in the said Articles or so much thereof as should be requisite; such East and West Line to begin, at Cape Hinlopen in the said Articles mentioned, and that, from the Western Point or End of the said East and West Line, which Western Point or End shall be just half-way a-cross the said Peninsula, a strait Line shall run Northward up the said Peninsula (and above the said Peninsula, if it re- quires it) till it shall so touch the Western Part or Periphery of the said Circle as to make a Tangent thereto, &c, and divers other Lines, in the said Articles also mentioned, should be ruxij marked and laid out before the 25th Day of December, in the Year 1733, by certain Commissioners, to be respectively ap- pointed for the said purpose. And whereas the said Lord Pro- prietor of Maryland, on his Part, by his Commission, dated[the 12th Day of the said Month of May, made in pursuance of the said Articles of Agreement, and duly executed, did appoint the Honourable Samuel Ogle Esq., Lieutenant-Governor, the Hon- ourable Charles Calvert Esq ; Philemon Lloyd, Michael Howard, Richard Bennet, Benjamin Tasker, and Matthew Tylghman Lloyd Esqs; or any six, five, four or three of them, to be hi Commissioners, for the Purposes in the said Articles mentioned. And whereas the said Proprietors of Pensilvania and said Counties, by their Commission, dated the same 12th Day of May, made in pursuance of the said Articles of Agreement, and duly executed, did, in like manner, appoint the Honourable Patrick Gordon Esq., Governor, Isaac Norris, Samuel Preston, James Logan and Andrew Hamilton Esqrs. and James Steele and Robert Charles Gent, or any six, five, four or three of them, to be their Commissioners, for the Purpose in the said Articles mentioned. And whereas six of the said Commissioners on the Part of Maryland, viz. the Governor of Maryland, Charles Calvert, Philemon Lloyd, Michael Howard, Richard Bennet and Mat- thew Tylghman Lloyds Eqs. and six on the Part of Pensilvania viz. the Governor of Pensilvania. Isaac Norris, Samuel Preston and Andrew Hamilton Esqs; and James Steele and Robert Charles Gent, did, on the 6th Day of October 1732, meet, at Newtown in the County of Kent, in Maryland, and from thence adjourned to the 30th Day of the same Month, to meet at New- castle, in order then to proceed to mark out the Circle in the said Agreement mentioned, and accordingly six of the said Com. missioners on the Part of Maryland, and all the Commissioners on the Part of Pensilvania, met at Newcastle, on the said 30th BOUNDARY QUESTION. 145 of October, and have there had divers Conferences, for some Days, about the Execution of the said Articles adjourned to a further Day. And whereas, because of the Indisposition of the said Richard Bennet, one cf the Commissioners for Maryland, the Lord Pro- prietor of the said Province and chief Governor thereof, then executing in Person the Powers of Government in Maryland, found it necessary to appoint Edmund Jennings Esq; to be one of his Commissioners in the Place of the said Richard Bennet, for the Purpose in the said Articles mentioned, pursuant to Powers reserved to each Governor for such Purposes ; also, by reason of the Death of the said Philemon Lloyd Esq ; and of the indisposition of said Charles Calvert Esq; the Honour- able Samuel Ogle Esq ; Lieutenant-Governor of the said Pro- vince of Maryland, after the Departure of the Lord Baltimore out of his said Province, in pursuance of the Powers aforesaid in the said Articles or Commission made for that Purpose, found it necessary to appoint others, and accordingly by his Commission, duly executed, dated the , did ap- point John Ross Esq; in the Place and Stead of the said Charles Calvert, and by his Commission, dated the ,duly executed, did, in like manner, appoint James Harris Esq ; in the Place and Stead of the said Philemon Lloyd, to be Com- missioners for the Purposes aforesaid. And whereas, after the aforesaid Meeting at Newcastle, divers Appointments and Adjournments having been made, and sundry Propositions and Debates, at their several Meetings, past, five of the said Commissioners on the Part of Maryland, viz. the Honourable Samuel Ogle Esq ; Benjamin Tasker, Edmund Jennings Esqs ; John Ross and James Harris Esqs ; and five Commissioners on the Part of Pensilvania, viz. Isaac Norris, Samuel Preston, James Logan and Andrew Hamilton Esqs; and James Steele Gent, pursuant to their last preceding Adjourn- ments, met, at the Town of Newcastle, on the 14th Day of this Instant November 1733, were, resuming their former Debates, and making divers Propositions to each other, on both sides, from the said 14th to this 24th Day of the said No- vember, each Side continued to persist in their former Opinions, that is, the Commissioners on the part of Pensilvania insisted, as they always had done, on running and marking out a Circle, or so much thereof as should be requisite, at the Distance of 12 English Statute Miles from the town of Newcastle, as in the second Article of the Agreement is directed, as the only Circle they conceived themselves impowered to run; and the Commissioners for Maryland, on their Part, insisted, as at 10— Vol. XV. 146 PENNSYLVANIA AND MARYLAND former Meetings they had done, upon running a Circle, or so much thereof as should be requisite, whose Periphery or Cir- cumference is 12 Miles, as the only Circle meant in the Deed of Bargain and Sale and Deed of Feoffment for Newcastle, and as the only Circle, intended by the Proprietors in the said Articles, which Circle the Commissioners of Maryland conceived them- selves only impowered to run. And that, under this Difference of judgment (the Commis- sioners of Pensilvania having refused to proceed to Cape Hin- lopen, in order to fix the Cape, and run the East and West Line, because they say, for the Reasons by them assigned, it could be to no manner of purpose) the Commissioners of Maryland were of Opinion that no other Consequence can arise than, either, the Commissioners should continue at Newcastle until the said 25th of December next, without running the said Circle about Newcastle, or, depart from Newcastle without further Ad- journment; and as the last 11 Days, since the 14th of this In- stant inclusive, have passed in Debates that have not, in the least, tended to any nearer Agreement between the Commis- sioners, and the Time, limited for executing the said Articles, is now so near expiring that, even, with the utmost Industry and Application, it would, scarce, by any means, be found practicable to run and mark out and fix all the several Lines in the Articles agreed and required to be done. Wherefore, upon the whole, the Commissioners, on both Sides, under these Circumstances, agree that it cannot Answer any of the Purpose intended by the said Articles to continue longer together, and, therefore, think it proper to depart without further Adjournment, and leave the Conduct of the Commissioners, on both Sides and their Endeavours used towards the Execution of the aforesaid Articles of Agreement to the justice and Wisdom of their Superiors. Samuel Ogle, Edmund Jennings, Benjamin Tasker, John Ross.; Isaac Norris, James Logan, Samuel Preston, A. Hamilton. Done at Newcastle, Nov. 24. Anno Domini 1733. In Presence of David French, Jos. Wood, S. Bourn. Which Instrument, as the Defendant hath been informed and believes, was jointly signed by the Commissioners on both Sides, and accordingly, the 25th of December 1733 came without any thing first being done towards running the said Line or Circles or performing the said Agreement. Saith that he cannot, either as to his Knowledge, Information or Belief, in any other manner, set forth the several Matters and Transactions that passed and were had between his Com- missioners and the Plaintiffs Commissioners, than as herein before is particularly mentioned and set forth, save and except BOUNDARY QUESTION. 147 that he hath rceeived, from his own Commissioners, several Papers, purporting to contain an Account of what passed between the Defendant's Commissioners and the Plaintiff's Commissioners at several of their said Meetings, being Copies as the Defendant is informed and believes, of several Papers that were delivered by the said Commissioners on each side to each other at several of their Meetings, Copies of all which Papers the Defendant, for the Plaintiffs further Satisfaction, hath set forth by way of Schedule to this his Answer, and prays that the same may be taken as part thereof. Saith he arrived in New-England on the 3d Day of September 173^, from whence he proceeded directly to Maryland, and got there on the 14th Day of November following. Denies he knows, or believes, or ever heard, that his Com- missioners made all or any of the Cavils or Objections in the manner as by the Bill is set forth, or that they acted in any other manner than as herein before is mentioned, and denies that he was knowing of, or privy to, all, or any, pretended De- signs of his said Commissioners, or to what they had done, or intended to do, till such time as they gave or sent this Defend- ant an Account of what had passed at their said Meeting. Denies that he previously advised, consented to, directed, ap- proved, or was acquanted with, any of his said Commissioners Doubts, Scruples, and Objections, made by his said Commission- ers at their Meetings as before set forth, or knew any thing, or Avas any ways apprized thereof, till after the same had really and in fact happened, until he received an Account thereof from his said Commissioners, and of what had passed at their said Meetings in the manner before set forth. Denies that he knows, or in his Conscience believes, or has ever been informed, that it was the Intention and Resolution of all, or any, or either of his said Commissioners, to defeat and prevent the running out the Lines aforesaid, agreed upon by the said Articles, in the manner as by the Bill is set forth. And denies that his said Commissioners, or any or either of them, after the Execution of the said engross'd Articles of the 10th of May 1732, in any manner endeavoured to persuade the Defendant not to compleat and perform the same, or to his Knowledge or Belief acted in any other manner than as herein before is particularly mentioned and set forth. Denies that he was, by any means whatsoever, brought, or induced to wish, or desire, or intend, that the said Agreement miffht, or should not, be carried into Execution, till such times as he was clearly convinced he had been greatly imposed upon therein by the Plaintiffs. Denies that he ever, until after he had discovered the Impo- 148 PENNSYLVANIA AND MARYLAND sition put upon him, and which he discovered during his so being in Maryland, consulted, conversed, or advised with, any Person whatsoever, how the Execution of the said Agreement of May 1732 might be avoided or evaded, as pretended and set forth in and by the Bill ; but after such Imposition discovered, and after his Arrival in England from Maryland, he admits he took the Opinion of several Counsel thereon. Neither knows, not hath heard, of any other Objections or Difficulties that were started by his Commissioners, with respect to the several Matters under their Consideration, than as herein before is set forth; and denies that such Objections were made, or insisted on, with or by his Privity or Direction ; nor had he any Knowledge or Information thereof, till he received an Account thereof from his Commissioners in the manner before-mentioned. Saith he does approve of the said several Proceedings of his said Commissioners, in the manner as herein before set forth; the same being consistent with, and agreeable to his own real Opinion, and the Justice of the Case, as he verily believes. Saith that, from the Information he hath received, and the Re- presentation that hath been made to him of his Commissioners Behaviour and Proceeding, he in his Conscience believes that his said Commissioners acted, in all things, with that Candour, Fairness, and Dispatch, which he himself intended and agreed they should do at the time when he executed the said Agree- ment on the 10th of May 1732. Saith that in regard he was over-reached by the Plaintiffs in the said Agreement, and greatly deceived and misled therein by the Map or Plan upon which the said Agreement was founded, he is not desirous that the said Agreement of the 10th of May 1732 should be executed and fulfilled, but, on the contrary, hopes, for the Reasons before-mentioned, the same shall not be carried into Execution. And in case this Court should be of Opinion, that the said Agreement ought to be carried into Exe- cution, in that Case, is advised and insists that the Circle, thereby agreed to be run about the Town of Newcastle, ought to be a Circle whose Periphery only is 12 Miles, and whose Semi-diameter is two Miles ; and not a Circle whose Semi-diame- ter is 12 Miles, as the Plaintiffs insist upon. Denies that, at any of the several times of his producing and reading his said Notes or Proposals, pending the said Treaty with the Plaintiffs, and before the said Agreement with them, or at the time of executing the said Agreement with them, on the 10th of May 1732, he meant, or intended, that the said Circle, agreed upon, should be a Circle whose Semi-diameter- was to be 12 Miles, as by 7 the Bill is pretended. BOUNDARY QUESTION. - 149 Believes the Commissioners, on each Side, in case no such Difference in Judgment had arose between them as is before set forth, might, within the Space of four Weeks, at a proper Sea- son of the Year, have mark'd and run out the Circle, and Lines, mentioned in the said Agreement of the 10th of May 1732. Admits he did cause to be presented, to his present Majesty, a Petition in his own Name, on the 8th of August 1734, as in the Bill, praying a Confirmatory Grant of such Parts of the said Peninsula as are contained within the Limits of his said Charter, notwithstanding the words Hactenus inculta inserted in the recital of the said Charter. But denies that he either knows, or believes, that any falsi- ties were alledged or set forth in such his Petition to his Majesty, or that any Matters or Things that were necessary, on his part, to be laid before his Majesty were omitted, as is pretended by the Bill. Saith that the Reason why he did not mention in his said Petition neither the Plaintiffs, nor their Father, nor the said Province of Pensilvania, nor the said three Lower Counties by Name, nor set forth any thing relating to the said Agree- ment of May 1732, was, because, as he was advised, such Mat- ters were no ways material or pertinent to be set forth in such his Petition to his Majesty as aforesaid. And the Reason why he inserted in his said Petition that there was such a Report or Order in Council of the 4th of April 1638, relating to William Clayborne and the Isle of Kent, was, because such Order appears entered in the Books as of Record at the Board of Trade, and because he, and his Agents con- cerned for him, thought it was necessary to be stated in his Petition, and pertinent to the Prayer thereof. And denies that he either knows, or believes, that any thing was purposely omitted, or concealed, in his said Petition, either with respect to the Report of the Committee for Trade and Foreign Plantations in 1685, as by the Bill is pretended, or in any other respect whatsoever. Saith that, for ought he knows to the contrary, the Plaintiff John Penn might be gone for America, at the Time the Defend- ant presented his said last mentioned Petition to his Majesty, but the Defendant did not know the same, his going from England being in a secret and private Manner; besides, one of the Plaintiffs was then, and still is, in England ; but denies that he purposed, or expected, any advantage whatsoever to himself, by the Absence of the Plaintiffs John and Thomas Penn. Admits he did present the said last mentioned Petition to his Majesty in order to obtain a Confirmatory Grant of the said 150 PENNSYVLANIA AND MARYLAND three Lower Counties for himself, and for his own Use, Benefit and Advantage, ana not as a Trustee for the Plaintiffs, the De- fendant apprehending the Plaintiffs had no manner of Right or Title thereto, and that the same were clearly comprized within the Limits of his said Orginal Charter of Maryland. Denies that he either knows, or believes, or knew, or did believe, at the Time of his presenting his said Petition to his Majesty, that his Majesty, upon a fair and full Representation of the whole Case, as is pretended by the Bill, would not grant it; or that he the Defendant, for that, or any other Reason, con- cealed or omitted any Matter or Thing whatsoever in his said Petition, or which the Defendant thought necessary or material o be set forth. Saith the Reason Why he did not take any Notice, in his said Petition to his Majesty, of any Improvements pretended by the Plaintiffs to have been made in the said Three Lower Counties, or the Plaintiffs pretended Possession of them, was, because he did not know, nor was privy, nor does he now know, of any Improvements that had been made by the Plaintiffs thereon ; and for that such a limited Possession as the Plaintiffs have had in the said three Lower Counties was, in the Defendant^ Apprehension, no manner of Evidence at all of their Right or Title thereto, or their Property therein, and therefore the De~ fendant did not think it any ways material or nceessary to be stated ; nor doth he know or believe that it was any ways neces- sary, material or proper, to have stated in his said Petition any of the Facts, or Matters, in the Bill, pretended, and untruly al- ledged, to have been designedly or otherwise omitted or con- cealed therein; nor was the same, to the Knowledge or Belief of the Defendant, drawn or framed with any such Design or View as is suggested by the Bill; on the contrary saith, he as- suredly believes, if his Agents, or the Persons concerned for him in solliciting the same, had thought any of the Facts or Matters, by the Plaintiffs pretended to have been omitted therein, were necessary or proper Facts to have been stated therein, or that their not stating the same could with any colour of Reason have been imputed as a Design or Intention in them, or in the Defendant, of imposing upon their Lordships by that means, or misguiding their Lordships Judgment, as the Plaintiffs ridiculously insinuate, they would certainly, and of their own accord, have stated and represented the same fully to their Lordships. Denies that he took, or intended to take, any Advantage of the Absence of the Plaintiff John Penn, at the Time of his pre. senting such his last mentioned Petition to his Majesty ; nor did the Defendant, with any such View, or designedly, take that Op- BOUNDARY QUESTION. 151 portunity of presenting it rather than before, as is insinuated by the Bill ; but saith he caused the same to be presented as soon as possibly he could after his return to England from Maryland, without any regard to the Absence or Presence of the said Plain- tiff JohnPenn. And saith that the said Plaintiff John Penn's Departure was unknown, and unheard of, by the Defendant, till long after he was gone ; and the Defendant was so far from being- privy or acquainted with his Departure, that the Defendant hath been credibly informed it was very sudden and private, even in the City of London, where he resided. Defendant saith that such his Application to his Majesty, by Petition as aforesaid, was far from being unknown, unforeseen, or a Surprize upon the Plaintiffs, as by their Bill is suggested, for that the Defendant himself personally acquainted Mr. Paris, the Plaintiffs Agent and Sollicitor, with his Intention of ap- plying to his Majesty, as he afterwards did by his Petition in the manner before-mentioned, before the same was presented. Saith that the Reason why he apprehends it was necessary and material in his said Petition to his Majesty, as herein before is mentioned, to set forth and take Notice of the Report or Order in Council, of the 4th of April 1638, relating to the Isle of Kent, was, for that the said Isle of Kent, which was the Subject-Mat- ter and Occasion of that Order, lies on the Western Side of the said Peninsula, and is only divided therefrom in one Part, by a narrow Run of Water, and in regard that Order directs no Grant should be made of any Lands within the Limits of the said Maryland Charter, although it was then suggested that the Isle of Kent was inhabited, the Defendant was, therefore, advised it was pertinent to his said Petition to his Majesty, and proper to be inserted therein, which only prayed for a Con- firmation, from the Crown, of the Lands within the Limits of the said Maryland Charter; their Lordships Opinion appearing, upon the Face of the said Order, to have been that the said Isle of Kent was comprized within those Limits. Saith he did not apprehend, nor was he advised that it was any ways necessary, or pertinent to the Subject-Matter or Prayer of his said Petition to his Majesty, to set forth, or take any notice of, the Plaintiffs pretended Possession of the said three Lower Counties, in regard such a Possession as the Plaintiffs have had and enjoyed therein would be no manner of Evidence, nor is any Evidence, as he humbly insists and is advised, of any such Right or Property in the said three Lower Counties as the Plaintiffs set up or pretend : Nor could it any ways shew that the Plaintiffs had any manner of Right or Title thereto whatsoever : Nor have the Plaintiffs, as they state it themselves by their Bill, received any Quit-Rents from any of the Inhabi- 152 PENNSYLVANIA AND MARYLAND tants of the said three Lower Counties under such their pre- tended Possession; which, as the Defendant is advised and in- sists shews that the Inhabitants of the said three Lower Counties never looked upon, or acknowledged, the Plaintiffs, as the De- fendant humbly conceives and is advised, as their Proprietor, nor esteemed the said three Lower Counties, or any Part of them, as a Part of, or belonging to, the Plaintiffs said Prov- ince of Pensilvania, or to be comprized within the Limits of their Pensilvania Charter; but, on the contrary, to be distinct therefrom, and to belong to, and be Part of, the Defendants said Province of Maryland, or, otherwise, to be the Right of the Crown, and no ways to be the Right of, or belong to, the Plaintiffs. ' Saith he did not, in his said Petition to his Majesty, state the Agreement of 1732 between the Defendant and the Plaintiffs ; and the Reason he did not was, because, he was advised and apprehended, and still humbly apprehends, the same was no ways necessary or material to be stated : Tha said Agreement, as he is advised and insists, being lapsed in point of Time, and void, by a particular Clause in the said Agreement, and not being carried into Execution within the Time prescribed by the said Articles for that purpose. Saith that his said last Petition to his Majesty being, by his Majesty's Order in Council of the said 8th of August 1734, re- ferred to the Lords Commissioners for Trade and Plantations, to consider the same, and to Report their Opinion thereon, the same was, afterwards, on the 28th of the same Month, laid be- fore that Honourable Board ; and ths said Lords Commissioners of Trade and Plantations, on the very next Day, being the 29th of the same August, were pleased, as the Defendant hath heard and believes, to give Notice of the Defendant's said Petition being so laid before them for their Consideration, to Mr. Paris, the Plaintiffs Agent and Sollicitor, by a Letter, from then- Secretary, of that Date ; and likewise acquainted the said Mr. Paris, at the same Time, that they had appointed the 18th of the next Month, being September 1734, to take the Defendant's said Petition into their Consideration. And saith that their Lordships were, afterwards, pleased to prolong the Day for taking the Defendant's said Petition into^ their Consideration, to the 16th Day of the Month of October 1734, and of which Mr. Paris the Plaintiffs Agent had due Notice. And saith that, on the said 16th of October 1734, the Day ap- pointed by the Board of Trade for taking his said Petition into their Consideration, the said Mr. Paris appeared before the said Lords of Trade and Plantations, as Agent for the Plaintiffs BOUNDARY QUESTION. 153 in Opposition to the Defendant's said Petition, and, as the De- fendant has heard and believes, prayed further Time of their Lordships, alledging that he had not an Opportunity of pre- paring his Briefs for Council, or perusing the necessary Papers for that purpose; and, at the same Time, acquainted their Lordships that lie had, loug before, and immediately upon re- ceiving their Lordships Notice by their Secretary, sent the Plaintiffs, his Clients, an Account of the Defendant's said Ap- plication to his Majesty, and which had been referred to their Lordships for their Consideration; but that, as the said Mr. Paris was thoroughly acquainted with the whole Affair, he should not wait any Answer from Philadelphia, but only de- sired a Fortnight's time for the Purpose before-mentioned ; upon which their Lordships, in the Presence of the said Mr. Paris, and at his Request as aforesaid, were pleased to appoint the Monday following, for another Attendance on the said Petition, in order only that a Beginning might be made, ana acquainted Mr. Paris that they would, then, adjourn to a further Time, to hear any Arguments he, or his Council, might offer on the Case depending before their Lordships on the Defendant's said Petition ; and the said Mr. Paris, upon such last mentioned At- tendance before the Lords of Trade on the 16th of October 1734, informing their Lordships that he intended to present a Counter Petition to his Majesty on Behalf of the Plaintiffs, and in Op- postion to the Defendant's said Petition; their Lordships were pleased to acquaint Mr. Paris, that their Lordships were ready, and would hear any thing he the said Mr. Paris, or his Council, thought fit to object or offer, either in Opposition to the De- fendant's said Petition then under their Consideration, or in Support of the Plaintiffs Title to the said three Lower Counties ; to which Mr. Paris then replied, that, as he knew that to be the Sense of the Board, he would desist from presenting any such Counter Petition to his Majesty as he had before purposed to do, and promised to take notice of their Lordships further Ap- pointment for the Monday following. And accordingly the Defendant sa'.th, on the said Monday following, being the 21st of the same October, the said Mr. Paris attended the said Board with Counsel, and the Plaintiff Richard Penn was present, likewise, and prayed further time of their Lordships to be heard till the 20th of December following, when,' they assured their Lordships, they would then, certainly, proceed, without asking any further time, and without any further delay, and with which time their Lordships were further pleased to indulge them. Saith that, on the said 20th of December following, the De- fendant again attended the said Lords of Trade and Plantations, 154 PENNSYLVANIA AND MARYLAND and was heard, by himself and Counsel, in Support of his said Petition; and the same not being gone through upon that At- tendance, was, afterwards, heard again by their Lordships, in the same manner, upon the 31st of the same December ; but the said Mr. Paris, who had kept their Lordships in suspense all that time, in expectation of laying the Plaintiffs Pretensions and Title to the said Counties before their Lordships, and had, upon that Account, delayed their Lordships taking this Defendant's said petition into their Consideration from Time to Time, de- clined laying the same before their Lordships, or appearing in Support of their pretended Right, and only stood by to take notice of what passed and what was offered by the Defendant and his Counsel ; upon which their Lordships, after having heard the Defendant and his Counsel, in Support of his said Petition, that is to say, on the 10th of January 1734, made their Report to his Majesty among other Things, setting forth the Substance of the Defendant's said Petition, and humbly acquainting his Majesty, that the Lands in question, commonly called the three Counties on Delaware River, supposed to be excepted by the Words Hacte- nus inculta, appeared to their Lordships to be included in the Limits of this Defendant's Charter, but they having been in the Possession of the Plaintiffs Family, for several Years, their Lordships thought it proper to communicate the Defendant's said Petition to the Plaintiffs Agent, that they might have an opportunity to lay before their Loi-dships what they thought proper in relation to the said Petition, and to the Plaintiffs Title to the said Lands; and their Lordships were likewise pleased, in their said Report, to set forth, that they had been frequently attended by the Plaintiffs Agent, and by the Plain- tiff Richard Penn, who had promised to lay an Account of the Plaintiffs Title before the Board, but that, after having kept their Lordships in expections thereof for several Months, they, at last, refused to proceed therein, whereby their Lordships were disabled from offering any Thing to his Majesty relating to their Claim, except that they found, by their Books, that, for some time past, whenever the Plaintiffs, the Proprietors of Pensilvania, had nominated a Person for the Approbation of the Crown to be Deputy Governor of that Province, and of the said three Lower Counties, they have given Declarations, under their Hands and Seals, which are extant in their Office from 1702 to the last Nomination in 1733, whereby they acknowledge and agree that the said Approbation shall not be construed, in any manner, to diminish or set aside the Claim made by the Crown to the said three Lower Counties ; and their Lordships were, likewise, pleased further to set forth, by their said Report, that, upon the Plaintiffs refusal to proceed therein, their Lord- BOUNDARY QUESTION. 155 ships thought it their Duty to examine the several Facts set forth in the Defendant's said Petition, and thereby alledged by the Defendant as a Ground for his Hopes of his Majesty's favour ; and begged leave to acquaint his Majesty that they, thereupon, found that there was no room to doubt the Lands in question were comprized within the Limits described by the said original Charter of Maryland dated the 20th of June 1632; and their Lordships, likewise in their said Report, further set forth that they had examined the ancient Records of their Office, and found the Order of Council of the 4th of April 1638 herein before-men- tioned, and se as we apprehend, for the mutual Convenience of both Commis- sioners; and this we have the greater Reason to say since, the Motive, mentioned by you, of the Commissioners of Maryland desiring to attend his Lordship, is not taken Notice of in the Paper containing the Adjournment. The Commissioners did meet in May. at Philadelphia, and, from thence, an Adjourn- ment was made to the 3d of Sept. last, for the Reasons men- tioned in the Paper containing that Adjournment; and, what was offered, or refused, by the Commissioners of either side, will appear by the several Papers exchanged at that Meeting; and it was, from the Commissioners being at a stand (as you are pleased to express it) that the Commissioners of Maryland always ready to make Proposals, or offer Expedients, for the Furtherance of the Execution of the Articles, so far declined an obstinate Perseverance in their Opinions, that they proposed an Adjournment, for a further Consideration. — We find that, not- withstanding our Hopes, the same Sentiments as appears, as formerly, with relation to the Circle ; but why must we know that you can never submit to our Opinion of that Circle? We think our selves right, and therefore have reason to expect you'll in time be convinced of it; besides, such Arguments as these in your Answer may, with as much Propriety, be used by us against you, which we shall avoid, being sensible to carry no Conviction. We have offered, under the Disagreement we now labour, to proceed to Cape Hinlopen, in order to fix the Cape, and run the East and West Line from thence, and we areAvell convinced that such Proposal (tho' you have thought proper to reject it) is rational and expedient, for the following Reasons, viz. That that part of the Work must be done, as well as any other, before 25th of December 1733; That the Winter-Season is so much en- tered into, that no Probability of running the Lines, in that low and desart Country, later than this time, can be hoped for : and That the Tangent to the Circle of Newcastle depends, as much, upon running the East and West Line from Cape Hin- lopen, as the same Tangent does upon the Circle.— Before we 206 PENNSYLVANIA AND MARYLAND leave this Matter, we must, in Answer to your mention of Age and Infirmities and Fatigues, take notice that the Commission- ers of Maryland have constantly attended the several Meetings, at Newcastle, notwithstanding the most severe Season that has been for many Years known, notwithstanding the very great Distance from the Habitations of the Commissioners of Mary- land, and notwithstanding the Debates and Disagreement amongst the Commissioners might, as well have been held at any other Place, as at Newcastle. Thus, we doubt, not of our having removed every surmise of our entertaining any other than a laudable View in the Execution of the Ar- ticles, and, upon the whole, with the same Frankness as we have hitherto used, we cannot help saying that, in our Opinion, no other Consequence can arise, from our Differences in Judgment, and your Refusal to proceed to Cape Hinlopen, than that, either, the Commissioners should continue at Newcastle till the 25th of December 1733, without running the Circle, or, depart from Newcastle, without further Adjournment ; which we leave to your Consideration, 19th November 1733. The Original, whereof this is a Copy, was delivered by the Commissi onei-s of Maryland, to us, the Commissioners of Pensilvania, contained in 16 Papers in Folio. Isaac Norris, Sam. Preston, Jame« Logan, A. Hamilton, James Steele. Novemb. 20. To the Commissioners appointed on the part of Maryland for running, marking and laying out the Limits and Bounds between the Province of Maryland and the Province of Pensil- vania, &c. Gentlemen, Were the Matter of your Reply, of Yes- terday, to our Paper of the 17th Instant, as well supported, as the Manner of it is ingenious and civil, we own we should find our selves at a loss in answering it, but we must beg leave to say the Method you have taken in that reply is somewhat singular, for it is observable you admit what you think will not preju- dice the Point you aim at, you pass over in Silence what can- not be denied, and avoid or distinguish away such Facts as (tho' true in themselves) are not to be found in what you are pleased to call Minutes, and, at the same time, with a masterly Freedom, advance, on your part, without the Aid of any Min- utes at all, whatever you conceive may tend to your justification. Thus, you have endeavoured to justify the Objection made by the Commissioners of Maryland at our first Meeting at New town, against the Validity of our Commission, by terming it a prudent Caution, and alledging that it behoved you to con- sider our Powers, whether they were sufficiently ample for the Purposes so designed. But our Complaint was not that our BOUNDARY QUESTION. 207 Commission was considered, which you had regularly done in comparing your own and ours together, and finding them to agree in all things with each other, and with the Articles themselves (the Names and Titles of the Proprietors and Com. missioners excepted) but you'll be pleased to remember this was not sufficient to satisfy you, for, after all your Inspection, you thought fit to object that certain Persons, who were no Parties to the Agreement, had not joined in granting our- Com- mission; nor was this Objection, however groundless, given up> but only for that time waved ; now this Fact,tho' not to be found in the pretended Minutes we are referred to, is yet most un- questionably true. In the same manner it is, to keep up your own AVords, you say an Insinuation is endeavoured to be raised, that no Minutes of what passed at either of the Conferences (at Newtown, or the first at Newcastle in October 1732) were reduced to a certainty, and then, recommending us to the Re- visal of our Papers, you let us know there is such a Minute in being of what passed at Newtown. And. lastly, with a very civil Insinuation, are so kind as to charge this Misrepresenta- tion, as you have called it, to the Account of our bad Memories. And here, we must confess ourselves at a Loss to understand what can be intended by an Insinuation raised, that no Minutes were reduced to a certainty, but, as to the Hardships the Com- missioners of Pensilvania alledge that they have been laid under by those of Maryland, in denying to admit of Clerks, &c. the Case is briefly thus. The Commissioners on the Part of Pensil- vania, when at Newtown, strenuously insisted on having a Clerk, or Clerks, to take Minutes of our Pi'coeedings, and, when this was refused us, we then further insisted that one of our own Number, of each side, might be mutually appointed for that purpose, and to sign and exchange the Minutes between us; but this was, also, denied; nor can the Variety o* Argu- ments that were used, on your Part, against taking any Minutes, in the just sense of the Words, be forgotten. By one, it was alledged to be altogether unnecessary ; by another, that it would occasion much Writing and loss of Time ; and one, in a par- ticular Manner, expressed his Resolution not to sign any Papers, lest it might occasion his going into England ; but not only Minutes, but even the word Adjournment was objected to, till it was proved, from the Articles themselves, to be truly neces- sary; and then, at last, all we could possibly obtain was that a Memorandum should be taken, in Writing. The full Con- tents of which are very well noted in your own fourth Para- graph to be confined to these Particulars, That the Commis- sioners met, the Commissions were produced, and it was agreed the Commissioners should, without further Notice, meet a^ain 208 PENNSYLVANIA AND MARYLAND the 80th of that October, at Newcastle, to proceed on the Circle. But, to our surprize, when these Memoranchinis caine to be de- livered, it was absolutely refused, on your part, to have them signed in any manner at all. You, however, had one of them (you say) in the Hand-writing of one of our Commissioners, which was a Condescension, on our part, beyond what you thought fit to gratify us in, on vours; for the Duplicate we have is in the Writing of some Stranger, unknown to us, signed by no-body, and without the least Mark of its being a Minute that can have any Weight, or be of any Force whatever : Yet this Paper, such as it is, must, we presume, be the sole Founda- tion on which you really appear to divert your selves in con- cluding it must seem strange, even to us, that being possessed of it, we should complain of the want of Minutes, or, that hav- ing obtained that at Newtown, we should not be satisfied at Newcastle with the Expectation of the like Indulgence for the future. This we take truly to be the Sense of what you have said; yet, unhappily for your way of arguing, it fell out, at our then next Meeting at Newcastle, that tho' we had been, for four successive Days together, we do not find the least Mem- orandum of that kind, save in our own Minutes only. These extraordinary Methods of Obviating our just Complaints natur- ally afford Matter for a good deal of Observation, but we shall waive it, and only add, on this Subject, that, as we have always hitherto, so we must continue to differ from you in our Opinion of the best Method of taking Minutes, tho' we are not displeased with what you were, at length, prevailed on to fall into, for the first time, at Joppa. The Commissioners of Pensilvania have, most truly, said it was agreed at the first Meeting that the second Article for running a Circle about the Town of Newcastle, being the first in Order, and upon which a great Part of the Work depended, the said Commissioners should first meet there to proceed on that Circle, as the first thing necessary to be done by them, but say further, it no way appears they ever alledged that these Words were reduced to a Minute, and yet, that this was so agreed, is equally true in Fact, as if it had; therefore, of what Service it could be, to the Commissioners of Maryland, to make the Remark they have done, on that Fact, more than on many others, that most certainly passed, of which none at all were noted, save what has been mentioned, we cannot really discover? The Matter in it self is indisputably true, and, that it was so agreed, amongst the Commissioners, at Newtown, is equally true, which most certainly is sufficient. But to apply one of your own Words, we cannot forbear saying it is indeed astonishing, to us, to find that, in speaking of the Difficulty started about fixing the Cen- BOUNDARY QUESTION. 209 tre, &e. , you declare that you can in truth say you apprehend the Commissioners of Pensilvania, as well as those of Maryland, thought the Objection about it of so much Weight that an Adjournment was readily agreed on, when, on the contrary, Ave think it cannot but be still fresh in the memory of every Com- missioner then present, that those for Pensilvania would never allow that there was any difficulty at all in it, but always de- clared they were well satisfied it was not easy to fix the Centre, and were fully impowered for it, without any Application for further Direction, in that, or any other, Point of the Articles; but, when the Commissioners of Maryland appeared so extremely scrupulous, and declared themselves under Difficulties, which by the arrival of the Lord Baltimore their Proprietor, who was then shortly expected, might possibly be removed, none of you, Gentlemen, who were then present, we presume, can forget the great Regard we of Pensilvania expressed for the Lord Bal- timore on that Ocasion, our hearty Wishes for his safe Arrival, and our Confidence in his Honour, that he would always see his own Agreement fulfilled ; but his Lordship, it seems, thought not fit to interpose, and, from thence, alone, it arose, as we then, again and again, repeated it to you, that we gave way to that Adjournment which, in our Paper, we truly a long one ; but, you say, some of our Commissioners at the meeting in Feb- ruary, expressed their own Thoughts that the Meeting was too early, which, in the last page of yours, you have fully explained for them, in owning it the most severe Season that ever has been known. Your next Paragraph (the 7th) again forces us on that most disagreeable Task of repeating our surprise, but, after what we have very truly asserted to have been our sole Inducement to join in an Adjournment in November last to Feb- ruary ; and that being under no doubts in our selves, we never had the Thoughts of applying to any of our Proprietors for further Direction, we hope you cannot possibly be any longer at a loss to know, from which Proprietor's Commissioners a, Solution of the started Difficulty was to be expected? We agree with the Commissioners for Maryland, that in February, they very much insisted on taking the Opinion of Mathematicians, as a Direction, or at laast as a Help, for understanding the Dimensions of the Circle mentioned in the Articles of Agree- ment. We also acknowledge, that the Commissioners for Mary- land proposed a Question, which with great Solicitation, you were prevailed upon to put into writing, but, at the same time, you were so cautious that none of your Number should sign it ; and we further own, that we not only agreed, but proposed, to hear the Mathematicians, on both sides, speak to the Di- 14- Vol. XV. 210 PENNSYLVANIA AND MARYLAND mensions of the Circle in the Presence of the Commissioners on the 3d of February in the Forenoon; but we likewise say, what we have repeatedly said before, that the true Reason for our proposing to hear Mathematicians was, because the Com- missioners for Maryland having refused, as we have often noted, to admit Clerks for taking Minutes, and as the Commissioners for Pensilvania had no Evidence of any thing that passed between us, those on our Part were forced on this Thought of getting the Mathematicians before the Commissioners, as the best Expedient to have Witnesses to the Delivery of the Answer we were then to make to the Question of the Commissioners for Maryland ; but we must beg you to excuse us, for not re- membering that we ever intended, or proposed, to have the Answer of our Mathematicians in writing to the Question pro- pounded to us by the Commissioners for Maryland ; and this Answer, being somewhat large, and the Weather very severe, a longer Time than we expected was spent in the Copying ; whence it was, that some of the Commissioners for Pensilvania were delayed, as we have said in our Answer, about an Hour or two after the time of the Adjournment; and then it was the Com- missioners of Maryland thought fit to withdraw, and tho', im- mediately after their leaving the Room appointed for our Meet- ing, some of our Commissioners, in the most respectful man- ner, waited upon those of Maryland, and endeavoured to excuse the small Delay given them, requesting them at the same time to return to the Place of Meeting, which was not above 200 Yards from their Lodging, yet, all those Endeavours were in vain, and, though you stayed in Town from 12 o'Clock in the Forenoon of the 3d of February, the Time when you thought fit to withdraw, till the next Term, yet, no Importunities could pre- vail on you to meet us again; no Notice, by Word or Writing, was regarded ; and, notwithstanding some of you were told by us that the small Delay of an Hour Or two was, neither in Law or Equity, any Breach of the Articles, and that we were sure you would not venture to depend on it, but would find your selves under a necessity of meeting us again, yet, so pleased were some of theCommissioners for Maryland, with the imaginary Advant- age, that you left Newcastle, and returned home, unkindly en- deavouring (at least, some of you) to bring the Commissioners of Pensilvania under severe Censure for their neglect of their Duty. We hope to be excused if we cannot be so very courteous as to believe the Lord Baltimore's only View, when he wrote the Letter referred to in your Paper, was to permit his Com- missioners to endeavour the Execution of the Articles; for we have much more reason to believe that his Lordship, from the Result of his own good Judgment, knew well that your De- BOUNDARY QUESTION. 211 parture from Newcastle, in the manner before-mentioned, would be construed a direct Breach of the Articles on his Part, if the same could not be remedied by your meeting us again; but, as it seems agreed that his Lordship's Letter to our Governour was not a Notice within the meaning of the Articles, we cannot but observe the great Regard you paid to our Notice given you to meet us at Newcastle the 16th of April last ; but, as in many other Instances, so, in this neglect of our Notice, you plainly shew at the same time your Opinion of our Authority and your own readiness (as you call it) to do every thing in your Power to forward the Execution of the Articles of Agreement. It is in- deed very kind, in the Commissioners of Maryland, so frequently to put us in mind of what you modestly call our Forgetfulness, and, to be as civil as we can the same way, we desire you to remember, that what is contained in the Papers exchanged at Joppa, more than a small Part of what had been frequently and more largely talked to and treated of before that Time and the Adjournment, is only your Proposal of our going from thence to Cape Hinlopen, the Meaning of which we perfectly well understood; and, when you found we were not so easily to be imposed on, by such a Feint, you were pleased frankly to own that you, or some of you, were, at that Time, obliged to attend the Lord Baltimore to Burlington, and then proposed to meet at Philadelphia about the Time you expected his Lord- ship might be there ; to which, for your Convenieney, we agreed, though you thought it worth your while to oppose having that inserted in the Minute of Adjournment ; and, for the Truth of this, we need not rely on the Memory of the Commissioners on either Side : As we have been always ready to acknowl- edge every Truth alledged by the Commissioners for Mary- land, so we now own what you say, that you have been very ready to make Proposals, and offer Expedients, &c. , but we beg leave to say they must appear in another Light to us, than they have hitherto done, before we can agree these Proposals and Expedients had any tendency to the Execution of the Articles in the Terms in which they are expressed, or as they are gen- erally understood. As to the Proposal of going to Cape Hin- lopen, at this time you will excuse, for saying we well know it to be nothing but Amusement, and had we assigned no other Reason than this, for what we have said on that Head, you have now furnished us with a sufficient one, when you insist that no other Consequence can arise from our Difference in Judgment, but that, either, we must stay at Newcastle till the 25th of December, without running the Circle, or depart, with- out Adjournment; now, after this plain Declaration, that the Circle must not be run, is it not as plain a Consequence that 212 PENNSYLVANIA AND MARYLAND the running of the Line can be to no purpose? We are sori*y we have occasion to repeat, what we have so often said, but as, in our Opinion, it is beyond all exception, just, we must ever abide by it, and say that it is, by running a Circle at the Dis- tance of 12 Miles from the Town of Newcastle, only, that the Work enjoined us can be done according to the Tenor and Di- rections of our Commissions, for, other Authority, you, or we, have none. And, notwithstanding you seem to be determined, which perhaps with too good Reasons you believe must con- clude us, yet, the just Views which appear throughout our whole Conduct in this Affair, we hope at least will be approved of by Superiors. Newcastle, Nov. 20th, 1738. Isaac Norris, Sam. Preston, James Logan, A. Hamilton, James Steele. Nov. 22. To the Commissioners appointed on the Part of Pensilvania, for running, marking, and laying out the Lines, Limits, or Bounds, between the Province of Maryland and the Province of Pensilvania, &c, Gentlemen, It is with so much Reluctance we give you, or ourselves, any further trouble at this Time, in Vindication of our Conduct, truly represented, and justly sup- ported, in the Paper of the 19th Instant, that we shall content ourselves with some few Remarks in Answer to your Paper of the 20th Instant. First, In our Detail of the Transactions between the Commissioners at such Meetings where any Minute was taken, we rely on such Minute for the Truth of what passed. In order to avoid the Force of this, you are pleased to endeavour, at one time, to distinguish away the Writing we called a Min- ute into something you name Memorandum ; what essential Difference this Distinction makes, your own good Judgment will suggest. At another time you urge, that there were other Proceedings than what were contained in such Minutes, as in the Instance of the Minutes (for so we think we may call it) taken at Newtown, and the Minute taken at Joppa on account of the Adjournment; although we will not presume to question your Candour, in declaring what you positively remember, yet, we hope, a Truth, or Mistake of a material Fact, is much better proved from what was reduced into Writing, at the Time in which such Fact was supposed to have happened, than from the Uncertainty of Opinions, Memories, or Apprehensions. And what alledge to have been agreed on at Newtown, viz. that it was first necessary to run the Circle about Newcastle, proves the little Dependanceto be had on Memory, for it seems improbable that that should be agreed to be the first necessary Work, since the Tangent does no more depend on the Circle, than on the Line from Cape Hinlopen. Secondly, At such Meetings, where no Minute or Memorandum happened to be BOUNDARY QUESTION. 213 taken, we have been so fortunate as to advance nothing that can be denied. And we must confess, Gentlemen, you have shewn, in your Admissions, a strict Regard to Truth ; but, at the same Time, you have attempted, with wonderful Dexterity, to vanish over, and give the Fact a different Hue, from which it ought to appear in. As, for Instance, you think fit to own, that the Commissioners of Maryland insisted upon having the Opinion of Mathematicians as a Direction, or at least a Help, for understanding the Dimensions of the Circle ; and that the Commissioners of Pensilvania not only agreed, but proposed, to hear the Mathematicians speak to the Dimensions of the Circle in the Presence of the Commissioners of Maryland on the 3d of February in the Forenoon ; but, indeed, you also say, that the true Reason for the Commissioners of Pensilvania proposing to hear Mathematicians was, because the Commis- sioners of Maryland had refused to admit Clerks for taking Minutes, and as the Commissioners of Pensilvania had no Evi- dence of any thing that passed, those of the Pensilvania Com- missioners thought of getting the Mathematicians before the Commissioners, as the best expedient to have Witnesses to the Delivery of the Answer the Commissioners of Pensilvania were then to make to the Question of the Commissioners of Maryland. It is not said, nor can it be pretended (for we doubt not you would have spoke the Truth) that that true Reason was ever mentioned to the Commissioners of Maryland, and the Com- missiont-rs of Maryland, who have been always free, candid, and sincere, in this Transaction, never could suppose any re- serve, or private meaning, in the Commissioners of Pensilvania, nor can the Commissioners of Maryland conceive the essential Parts of the Facts to be less true and sufficient for their Justi- fication, because the Commissioners of Pensilvania had private Reasons for agreeing to such Proposals or Facts. You give us an undeniable Instance of yielding to the Force of Truth, when, in your Paper of the 20th Instant, you desire us to remember that what is contained in the Papers exchanged at Joppa, more than a small Part of what had been frequently and more largely talked to and treated of before that Time and the Adjournment, was only the Commissioners of Maryland's Proposal of going to Cape Hinlopen; so that a small Part of what had been more frequently and more largely talked to, &c. ,is plainly admitted or have been proposed at Joppa; and that small Part, as yoxi are pleased to term it, was to run out the Circle in the manner the Commissioners of Maryland conceived, and also to receive In- formation from Mathematicians about the Dimensions of the Circle; from whence it appears the Commissioners of Maryland had somethng else to propose to the Commissioners of Pensil 214 PENNSYLVANIA AND MARYLAND vania than the going to Cape Hinlopen, mentioned in your Paper of the 17th Instant. Nothing can more fully evince the exactly honourable Part his Lordship took, in what happened between the Commissioners, than the Direction he was pleased to give his Commissioners to renew the Meeting after the De- fault of the Commissioners of Pensilvania, and his Refusal to interpose in the Explanation of the Articles; by the First, he shewed his generous Willingness that the Articles should be executed, and, by the last, he declared he would not influence the Judgment of the Commissioners in the manner of Execution. What we have further to observe is, the Misapprehension you have entertained, either of our Declaration, or Determination, that the Circle must not be run. We do not insist, but declare our Opiuion, that no other Consequences can arise, from our Differences in Judgment, and your Refusal to proceed to Cape Hinlopen, than, that either the Commissioners should continue in Newcastle, until the 25th of December 1733, without running the Circle, or depart from Newcastle, without further Adjourn- ment, which Opinion, we apprehend, is very different from a Determination that a Circle must not be run. We have never assumed, or even pretended to, a masterly Freedom, but, by a Liberty becoming Truth, we hope we have done Justice to our own Behaviour in the Opinion of our Superiors. Newcastle, 22d of November, 1733. The Original, whereof this is a Copy was delivered to us. the Commissioners of Pensilvania. —Isaac Norris, Sam. Preston, James Logan, A. Hamilton, James Steele. Nov. 23. To the Commissioners appointed on the Part of Maryland for running, marking, and laying out the Lines, Limits and Bounds between the Province of Maryland and the Province of Pensilvania, &c. , Gentlemen, At our first Meeting here, on the 14th of this Instant, pursuant to our Adjournment in Sep- tember, you were pleased to say, as you have often before told us, that you could not agree in running a Circle at the Dis- tance of 12 Miles from the Town of Newcastle, and on the 16th proposed to us, in Writing, to go to Cape Hinlopen, in order to proceed in fixing the Cape as you were pleased to express it. We, in answer to that Proposal, found it necessary to shew that, in our Opinion, our Proceeding on that Part of the Work could be to no Purpose, if the other must be left undone. At the same time observing how, upon all Occasions, you seemed fond of expressing your great Readiness and Willingness to do every thing that in your Opinion might contribute to the Exe- cution of the Articles. Those Professions let us naturally into an Examination of the Conduct of the Commissioners of Mary- land, under the all Changes that have been in your Commis- BOUNDARY QUESTION. 215 sions since the first Appointment, even from our first Meeting at Newtown, a Place so often mentioned, and to set the whole in a true Light, from whence, it might easily be seen, how far your Professions, and the manner of your Proceedings, agree. This Attempt of ours as naturally drew on a Recollection of the Proceedings of the Commissioners on your Part, and then, your Representation, we found, made it, again, necessary, in ours, to state the Proceedings of the Commissioners on both sides, in a manner as we presume could be liable to no Objec- tion. You, in return to this, in your Paper of yesterday profess- ing a Reluctance to give us, or your selves, any further Trouble in the Vindication of your Conduct, duly represented, and justly supported (as you are pleased to say) in yours of the 19th, you declare you shall content your self with a few Remarks on our Paper of the 20th ; but we must beg you to excuse us, if, from all you have said in either of your Papers, we cannot discover any thing which has weakened the force of what we have, with great plainness, advanced in support of our Opinion, but will rather confirm us with every indifferent Person in the same ; for, to observe on your first Remark, while you insist on a Difference between a Memorandum and Minute, as there may truly be a great one, if you will be pleased to take not only ours, but the Notion that all Men as we conceive must form, of what with any Justice can be called Minutes, viz. that they are plain and clear Notes of the Substance of what materially passes at the Conferences of Persons intrusted with the transacting an Affair of Importance, and such as derive an Authority from the Trust reposed in the Clerk or Clerks who take them, we say, if you will consider this, it will be evident, from all that has passed between us, the Subjects that you have fully justi- fied our Complaints for the want of such Minutes, and could the Commissioners for Maryland have been prevailed on to agree with us, that such Minutes should be taken, and rendered Authentick by proper Signers, and exchanged, which we must believe was necessary in our Case, they should have been at full Liberty, as to us, to call them by what Name they pleased ; yet, though they persisted in refusing to allow such Minutes, we were not so much wanting to our selves as to have no other Recourse for ascertaining what passed between us than to our Memories only ; for we duly took, and kept Minutes, for our own use, some of which we once read at the Board, and though their Authority could not be admitted, by tne Commissioners of Maryland, their Truth will stand above all Objection. The Methods we were obliegd to take, at Joppa, for procuring some certain Evidence of our Proceedings, we need not mention, nor can there be any Occasion to speak further to the Affair of the 216 PENNSYLVANIA AND MARYLAND Mathematicians, the Papers that passed between us at Joppa, or the Lord Baltimore's Letter to our Governor, for all these, we conceive, sufficient Notice has already been taken, and there- fore we shall only say, upon the Distinction you have endeav- oured towards the Close of your Paper to make, between de- claring your Opinion, and your being determined, that, if we misapprehended your Meaning, we assure you it was far from being a wilful Mistake: on the contrary, it will give us a great Pleasure to find you Change your Sentiments, and agree to run the Circle at the Distance of 12 Miles from the Town of New- castle, as enjoined by the Articles ; a Point from which we never can recede, and, without your Concurrence in this, we must be contented to submit to any Consequence that may arise from this Difference of Judgment, as you are pleased to call it. Newcastle, November the 23d 1733. Isaac Norris, Sam. Preston, James Logan, A. Hamilton. Nov. 24. There is one Paper more contained in the Schedule to the Defendant's Answer: which is the Commissioners parting Minute of the 24th of November 1733 ; but as that is fully stated in Folio 347 of our Bill, and is set forth verbatim at Folio 334, in the Body of the Defendant's Answei*, it need not be here again inserted. 1737. June 15. The foregoing Answer was put in. 1738. April 13. The Defendant signed a Waiver of his Priviledge. April 20. The Plaintiffs replied to the Defendant's Answer. Nov. 27. They served the Defendant with a Subpoena to rejoin. Jan. 27. The Plaintiffs gave a Rule to produce Witness. Feb. 8. The Plaintiffs obtained an Order for a Commission to be exe- cuted in the City of Philadelphia, and adjourned to the Town of Newcastle, &c. And at the same time it was ordered that the Defendant might take out a Commission to Maryland. Mar. 13. By another Order of this date the Defendant's Commission was to be executed at Annapolis, and adjourned to any other part of Maryland and the three Lower Counties. 174u. Ap. 9. to Sept. 18. The Defendant's Commission was first executed. BOUNDARY QUESTION. 217 Oct. 20. to Nov. 29. The Plaintiffs Commission was executed. Jan. 16. The Defendant's Commission was returned. 1741. July 30. The Plaintiffs Commission was returned. Feb. 3. The Defendant gave a Rule to publish. Feb. 4. The Plaintiffs, who had many Witnesses to examine in Lon- don, got an Order to enlarge Publication till the first Day of Easter Term then next. 1742. April 28. The Plaintiffs obtained a further Order to enlarge Publication till the first Day of Trinity Term. June 17. The Defendant, who had but three Witnesses to examine here, and had himself given the Rule to publish in February before, obtained an Order to enlarge Publication, for a Month. July 13. The Defendant, again, obtained another Order to enlarge Publication, for three Weeks more. Aug. 11. Publication passed. WRITTEN EVIDENCE WHICH IS PROVED IN THE CAUSE, AND WHICH THE PLAINTIFFS HAVE TO PRODUCE; TOGETHER WITH SOME OCCASIONAL OBSERVATIONS THEREON. Chap. I. From the Discovery of North America to the Grant made by the Crown of Maryland to Lord Baltimore in the Year 1632. 1584. As Captain Smith's History, (hereafter mentioned) and many others, inform us, Queen Elizabeth granted Letters Patent to Sir Walter Raleigh, for the discovering New Lands and Countries, not actually possessed by any Christians. Captain Smith's Folio Voyages, Fol. 2. 1606. As we are informed by Captain John Smith's History, (here- after mentioned) he the said Captain Smith discovered several Parts of Virginia, particularly the Bay of Chesopeak, and the 218 PENNSYLVANIA AND MARYLAND Peninsula, mentioned in this Cause, and went on Shore, and gave Names to several Places. Captain Smith's Folio Voya- ges, Fol. 21, and the following Pages. 4 Jac. I. 1606. Apr. 10. From the Chappie of the Rolls, a Copy of Letters Patent, under the Great Seal. Reciting that the King's Subjects, Sir Tnoinas Grates and divers others, had desired Licence to make Habitation, Plantation, and to deduce a Colony, of sundry of the King's People, into that Part of America commonly called Virginia, and other Parts and Territories in America, either appertaining to the King, or which were not then actually possessed by any Christian Prince or People, scituate, lying and being, all along the Sea Coast, between 34 Degrees of Northerly Latitude from the Equinoctial Line, and 45 Degrees of the same Latitude, and, in the main Land, between the same 34 and 45 Degrees, and the Islands thereunto adjacent, or within 100 Miles of the Coast thereof; and, to that End, and for the more speedy Accomplishment of their said intended Plantation and Habita- tion there, were desirous to divide themselves into two several Colonies and Companies. The one, consisting of certain Knights, Gentlemen, Merchants, and other Adventurers of the City of London and elswhere, which desire to begin their Plan- tations and Habitations in some fit and convenient Place between 34 and 41 Degrees of the said Latitude, all along the Coast of Virginia and Coasts of America aforesaid. And the other, consisting of sundry Knights, Gentlemen, Merchants, and other Adventurers of the Cities of Bristol and Exeter, and Town of Plymouth, which desire to begin their Plantations and Habitations in some fit and convenient Places, between 38 and 45 Degrees of the same Latitude, all along the said Coast of Virginia and America, as the Coast lyeth. The King grants that the said Adventurers of the City of London shall be called the First Colony, and shall begin their said first Plantation and Seat at any Place, upon the said Coast of Virginia or America, between 34 and 41 Degrees of the said Latitude; and that they shall have all the Lands, Woods, Soils, Havens, Ports, Rivers, &c. , from the said first Seat of their Plantation and Habitation, by the Space of 50 Miles all along the said Coast of Virginia and America, towards the West and South West, as the Coast lyeth ; and also, for the Space of like 50 Miles, all along the said Coast of Virginia and America, towards the East and North East, as the Coast lyeth, with all the Islands within 100 Miles directly over against the same Sea Coast; and all the Lands, &c. , from the Sea directly into the main Land by the Space of 100 Miles, and that none shall plant behind them, towards the main Land, without the express Leave of the Coun- BOUNDARY QUESTION. 219 sell of that Colony. And his Majesty likewise grants, that the said Persons of the Town of Plimouth, in the County of Devon, shall be called the Second Colony, and shall begin their first Plantation and Seat between 38 and 45 Degrees of the said Northerly Latitude, and shall have all Lands, &c. ,in like man. ner, 50 Miles each way on the Sea Coast, and all the Islands against the Sea Coast 100 Miles into the Sea, and all the Lands into the main Land 100 Miles ; and that none shall plant behind them, without the Leave of the Council of that Colony. And the King ordains, that each of the said Colonys shall have a Counsell, which shall govern and order all Matters and Causes which shall arise within the same several Colonys, according to such Laws, Ordinances, and Instructions, as shall be given and signed with the King's Hand, or Sign Manual, and pass under th^ Privy Seal. And the King grants and agrees with the Persons of the said first Colony, that he, upon Petition, will grant to them, by Letters Patent, all the Lands which shall be within the said Precincts limited for that Colony, to be held of the King, as of the Manor of East Greenwich, in free and common Soccage only, and not in Capite. And in like manner agrees with the said Persons of the second Colony. This is proved by Paris to be a true Copy from the Roll, and is exhibit Rocha, No 1. 7 Jac. I. 1609. May 23. From the Chappie of the Rolls. A Copy of Letters Patent under the Great Seal, Reciting the said former Letters Patent granted to the First and Second Colony jointly ; and that the said first Colonv, (which had already engaged themselves in the Business of the said Plantation) had requested a further Enlargement and Explanation of their said Grant, Prvileges, and Liberties, and that Councellors and other Officers might he appointed to direct and manage their Affairs, as were not so remote from London, but might be ready at hand to give Ad- vice and Assistance on all requisite Occasions. The King granted unto Robert Earl of Salisbury, and unto 62? other Lords, Knights, Gentlemen, Merchants, Captains, and Traders, by Name, and unto 55 of the Company of the City of London, and, unto 28 other Persons, by Name, that they, and those who they should admit, should be a Body and Cominalty perpetual, and should have perpetual Succession, and a Common Seal, and should be incorporated by the Name of the Treasurer and Com- pany of Adventurers and Planters of the City of London, for the first Colony in Virginia. And the said King granted unto the said Treasurer and Company, and their Successors, all those Lands, Countrys and Territories iu that Place of America called Virginia, from the Point of Land called Cape, 220 PENNSYLVANIA AND MARYLAND or Point Comfort, all along the Sea Coast, to the Northward, 200 Miles; and from the said Point of Cape Comfort, all along the Sea Coast, to the Southward 200 Miles ; and all that Space and Circuit of Land, lying from the Sea Coast of the Precinct aforesaid, up, into the Land, throughout, from Sea to Sea, West and North West: And all the Islands, lying within 100 Miles along the Coast of both Seas of the Precinct aforesaid. To hold the Premisses to the said Treasurer and Company, their Successors and Assigns, for ever, to their own Use. To be held of the King, as of the Manor of East Greenwich, in free and common Soccage, and not in Capite. — This is proved by Bulmer to be a true Copy from the Roll, and is Exhibit Rocha, No 2. 1612. A Quaito Book, this Year printed at Oxford, (borrowed out of the American Library belonging to the Society for the Pro- pagation of the Gospel in Foi'eign Parts) — intitled, A Map of Virginia, with a Description of the Country, &c. written by Captain Smith, sometimes Governor of the Country. At Fol. 1, and the following Pages, he gives an Account of the planting in America by the English in 1606, under the Degrees 37, 38, and 39. And describes the Bay of Chesopeak, and sev- eral other Rivers and Places in that Bay. And, at Fol. 110, he gives Captain Smith's Map of that Part of the Country, drawn by him in 1606, of which we" shall say more hereafter. This Book is marked by White Kennett, Bishop of Peter- borough, deceased, who gave it, and a great Collection of other Books, to the Society, with his Name, and is proved by Paris to be borrowed out of the said Society's American Library, and is Exhibit, Quarto Book, West-Indies, B. 18 Jac% 1. 1620. Nov. 3. From the Chappie of the Rolls, a Copy of Letters Patent, Reciting the former Joynt Letters Patent, of the fourth Year of the King, to the first and second Colonys both : Reciting also, the subsequent Letters Patent, granted to the first Colony, to make them a distinct and entire Body by themselves, giving unto them their distinct Limits, and Bounds; Reciting liKewise, that the King had been, in like manner, petitioned, by the Adventurers of the second Colony, and their Associates, to avoid all Questions between them and the first Colony, to make the Adventurers of the said several Colony one distinct and entire Body, and to grant them such Estate, Liberties and Privileges as after mentioned. Now, for as much as the King has been certainly given to understand, by divers good Subjects, that have for these many Years past frequented those Coasts and BOUNDARY QUESTION. 221 Territory's between the Degrees of 40 and 48, that there is no other Subjects of any Christian King or State, or by any Au- thority from their Sovereigns, Lords, or Princes, actually in Possession of any the said Lands, or Precincts, whereby any Right, Claim, Interest, or Title, may or ought, by that means, to accrue or belong to them, &c. His Majesty grants, that all that Circuit, Continent, Precincts, and Limits in America, ly- ing and being, in Breadth, from 40 Degrees of Northerly Lati- tude from the Equinoctial Line, to 48 Degrees of the said North- erly Latitude, and, in Length, by all the Breadth aforesaid, throughout the main Land from Sea to Sea, shall be the Limits and Bounds, and Precincts of the said second Colony; and, to the End the said Territories may, for ever, be more certainly known and distinguished, the King 1 wills that the same shall be called New England in America. And, for the better Plan- tation, Ruling, and Governing of the said New England in America, his Majesty ordains, that there shall be, for ever here- after, in the Town of Plymouth, in the County of Devon, one Body Politick and Corporate which shal 1 have perpetual Suc- cession, which shall consist of the Number of 40 Persons, and no more, and which shall be called, The Council established at Plymouth, in the County of Devon, for the planting, ruling, ordering, and governing of New England in America. And ac- cordingly his Majesty appoints the first 40 Persons (consisting of Privy Counsellors and others) for that Council, and incorpo- rates them and their Successors, by the Name aforesaid, with sundry Powers and Privileges, and amongst others to elect a President of the said Council. And his Majesty gives and grants to the said Council established at Plymouth, and their Succes- sors, " All the aforesaid Lands and Grounds, Continent, Pre- "cincts, Place, Places, and Territories, viz. That aforesaid "Part of America, lying and being, in Breadth, from 40 Degrees "of Northerly Latitude from the Equinoctial Line, to 48 Degrees "of the said Northerly Latitude, inclusively, and, in Length, of "and within all the Breadth aforesaid, throughout the main "Lands from Sea to Sea. Together with all Lands, Soils, "Grounds, Havens, Ports, Rivers, &c. Provided always that the "said Islands, or any the Premisses herein before-mentioned, "and by these presents intended and meant to be granted, be not "actually possessed or inhabited by any other Christian Prince "or State, nor be within the Bounds, Limits, or Territories of "that Southern Colony, heretofore by us granted." To hold to the said Council, their Successors and Assigns, for ever, to their own sole use, to be held of the King, as of the Manor of East Greenwich, in Soccage, and not in Capite. This is proved by 222 PENNSYLVANIA AND MARYLAND Bulmer to be a true Copy from the Roll. And is Exhibit, Rocha, No. 3. Note. Supposing that no State had been possessed of any Part of these Lands, (tho' it is certain the Dutch and Swedes were) yet, so long as the foregoing Grant to the Council of Plymouth sub- sisted, (which it did, until long after the Grant of Maryland was made to Lord Baltimore) the 40th Degree inclusively, was granted for Part of New England ; and, consequently, no Part of that 40th Degree, while that Grant subsisted, could be re- granted by the Crown, either to Lord Baltimore, or to any other Person. 1624. A Folio Book, this Year printed in London, intitled, The General History of Virginia, New England, &c. , from their first Begkining, Anno 1584, to this present 1624. With the Proceedings of the several Colonies, &c. , also the Maps and De- scriptions of all those Countries, &c. , divided into six Books. By Captain John Smith, sometimes Governor in those Coun- tries, and Admiral of New England. This is the Book, men- tioned in the Bill and Answer. At Fol. 41, he gives his Map of Virginia, again, as done in 1606, being a Copy of that which had been printed in the former Edition of his Work be- fore, in 1612. And at Fol. 21, he gives the same Account, again, of the Discovery, and going a-shore, and giving names to Places, in the Bay of Chesopeak, and upon the Penin- sula, mentioned in the Pleadings in this Cause. Two several Copies of this Folio Edition are spoken to by James Logan, Benjamin Eastburne, and F. J. Paris, as well as occasionally mentioned by other Witnesses. And these exhibits are Smith's Folio History, and Smith's Folio History J. S. 1625. Another very large Folio Work, this Year printed in London, intitled, Purchas his Pilgrims, in 5 large Volumes. This Work is a well known Collection of vast Numbers of different Voy- ages and Discoveries. And, amongst others, the 4th Volume thereof contains, at Fol. 1691, the Description of Virginia by Captain John Smith, enlarged out of his written notes. This contains exactly, the like matter as the two former printed Editions of his Works, of the Years 1612, and 1624. And it also contains another Copy, exactly like the former, of Captain Smith's Map made of Virginia in 1606. — This Book is spoke to by Paris (and some other Witnesses) and is the Exhibit, Pur- chas' s Pilgrims, Vol. 4. BOUNDARY QUESTION. 223 Note. The great Use of these several Editions of Captain Smith's History and Map is, to shew that his Map was thrice printed and published in England, in 1612, 1624, and 1625, and so, must have been well know in 1632. Note also. By all the three early Editions of Captain Smith's Map, the Line of the 40th Degree of Northerly Latitude, compleat, was laid down to be no more than 7 Miles more North, than the Head of Chesopeak Bay. Note likewise. Every one of these threa Editions of Captain Smith's Map, contains the following Names and Descriptions of Places, which we shall by and by find to be mentioned in the Grant of Mary- land, viz. It shews that there is a Peninsula; it contains the Names of the Bay of Chesopeak, Watkins Point, the River of Wighco, the River Patowomeck, the Place called Cinquak, and Cape Charles. 1630. July 15. An Exemplification, or Inspeximus, under his Majesty's great Seal of the Province of New York, of the following Record, re- maining in the Secretary's. Office of that Province, (being proved additionally by two Witnesses in the Cause, viz. Thomas Nox- on and William Vandespiegel, to contain a true Copy, and also a true Translation, of a Book of Dutch Patents, in th e fol- lowing Words, viz. We, the Director and Counci 1 of New Netherland, residing on the Island Manhatans, and Fort Am- sterdam, under the Government of their High and Mighty- nessesthe Lords States General of the United Netherlands, and the incorpoi*ated West-India Company at the Chamber of Am- sterdam, testify and declare by these presents, that on the Day of the Date hereunder written, before us, in their own Persons, came and appeared Queskakotts, Ellsongues, Sironchusou, and Inhabitants of their Town, scituate on the South Corner of the Bay of the South River, and declare, voluntarily, and by the especial Direction of the Rulers, with the Consent of the Com- mon People thereof, that they had since the 1st Day of June 1629, for and by reason of certain Parcel of Merchandizes which they acknowledge, before the passing of these Presents, to their good Liking and Satisfaction, to have received in their Power and Hands, and delivered to them, in a right, just and free Prop arty to have transported, released, given over and assigned, as they do by these Presents transport, release, give over and assign, for and to the behoof of the Honourable Mr. Samuel Godyn now absent, on whose Words we, on due Stipulation, do accept thereof, to wit. 224 PENNSYLVANIA AND MARYLAND The Lands, to them belonging, situate on the South-side of the said Bay, called by us the Bay of the South River^ stretching in length from Cape Hinloop to the Mouth of the said South River, about 8 large Miles, and up in- to the Country, in the breadth of half a Mile, stretching to a certain Cowplace or Meadow ; by which said Meadow these Limits maybe, evidently, on Sight distinguished. And that, with all the Action, Rights, and Jurisdiction, to them, and their aforesaid Quality, belonging; constituting the said Godyn in their stead, Estate, real and actual Pos- session of the same; and giving him and his Assigns full Power and Authority to enter on, possess, use and retain the said Land ; and thereof to transact and dispose, as with his own lawful acquired Lands; without the Releasors any Right in the least thereto, having, reserving or keeping, but warranting the same against all persons. All on good Faith, without Fraud or Deceit, &c. In witness whereof we have confirmed these presents with our usual Signature and our Seal hereto appending. Done on the Island of Manhatans 15 July 1630. ' This is Exhibit Dutch Records, New York No. 2, Fol. 3. Note. This not only shews that the Dutch were possessed of Man hatans (which is now New- York) in 1630, but had a Director and Council there, so early. And that this Purchase, by a Dutchman, so early as 1629, of Lands from the Indian Natives, from Cape Hinloop in the Bay of the South River, (now Dela. ware Bay) was past and recorded before the Dutch Director and Council of New-Netherlands (now New-York.) Of all which, there will be no sort of doubt, presently. 8 Car. I. 1632. June 20. We have an Order that the Defendant shall produce his Ori- ginal Charter, under the Great Seal, for Maryland, which he says, in his Answer, runs in these Words, viz. REX &c. Omnibus ad quos &c. Salutem. Cum perdilectus & perquam fidelis sudditus noster, Cecil Calvert, Barode Balti- more in Regno nostro Hibernian, Alius & litres Georgii Calvert Militis, nuper Baronis de Baltimore in eodem regno Hiberniae patris in ha^rens vestigiis laudabili quodam & pio Christian* religionis pariter, & imperii nostri territori dilatandi Studio flagrans, licentiam nostram, ut copiosam Anglican* gentis Coloniam, industria & impensa sua, ad certani quandam re- gionem, inferius describendain, in terra quadam, in partibus America?, hactenus inculta, & barbaris nullam divini Numinis notitiam habentibus in partibus occupati, deducere possit, totamque illam regionem, cum certis quibusdam privileges, & jurisdictionibus, ad colonic sua?, & regionis predict* salubre BOUNDARY QUESTION. 225 regimen & statum pertinentibus, a regia nostra celsitudine, sibi & haeredibus suis dari, eoncedi & confirmari, huniiliter sup- plicaverit ; Sciatis igitur quod nos, Hum & nobile, praefatorum Baronum de Baltimore, propositum & studium, regio favore prosequentes, ex gratia speciali, certa Seientia & mero motu nostris, dedimus, concessimus & eonflrmavimus, & per hanc praesentam chartam nostram, pro nobis, ha?redibus & succes- soribus nostris, praefato Cecill' modo Baroni de Baltimore, & hseredibus & assignatis suis, damus, eoncedimus & eonfirrnamus. Totam illam partem peninsula?, sive chersonesus, jacentis in partibus America 1 , inter oeeanum ex oriente, & finum de Ches- sopeake ab occidente; a resid' ejusdem, per rectam lineam a promontorio sive capite terras, vocato Watkins Point, juxta sinum prasdictum prope fluvium de Wighco seituate, ab occi- dente, usque ad magnum Oeeanum, in plaga oriental' ductam, divisam ; Et, inter metam illam a meridie,usque ad partem illam aestuarii de Delaware, ab aquilone, quae subjacet quadrage^imo gradui latitudinis Septentrionalis, ab a?quinoctiali, ubi termi- natur Nova Anglia. Totumque ilium terras tractum, infra metas subscriptas; viz : transeundo, a dicto aestuario vocato Delaware Bay, recta linea, per gradum praedictum, usque ad verum meridianum primi fontis fluminis de Pattowomack, deinde, vergendo, versus meridiem, ad ulteriorem dicti fluminis ripam, &, earn sequendo, qua plagam occidentalem & meridionalem spectat, usque ad locum quendam, appellatum Cinquak, prope ejusdem fluminis ostium scituatum, ubi in praeiatum Sinum de Ohessopeak evol- vitur, ac, inde, per lineam brevissimam, usque ad pra?dictum promontorium, sive locum, vocatum Watkins Point, (ita quod totius terras tractus per lineam praedictam, inter magnum oeeanum & Watkins Point divis' usque ad promontorium vo- catum Cape Charles, & singula sua appenditia, nobis, hasre- dibus & successoribus nostris, integre remaneant excepta imperpetuum. ) Necnon omnes insulas, & insululas, infra limites prasdictos. Concedimus etiam, & eonfirrnamus, eidem Baroni de Balti- more, ha?redibus & assignatis suis, omnes & singulas insulas, & insululas, ab oriental! pr^dicta- Regionis littore orientem, versus in mari, natas, vel nascendas, infra decern leueas marinas, ab eodem littore scituatas ; Cum omnibus & singulis portubus,navi- um stationibus, a3stuariis, fluminibus, & fretis, ad regionem, vel insulas praedictas, pertinentibus; Omnesque sundos, terras, cam- pestria, silvas, montana, paludes, lacus, flumina, a?stuaria, & freta, infra metas, terminos & limites prasdictos, scituata, seu existentia, &c. — habend' tenend' possidend' & gaudend' pras- 15— Vol, XV. 226 PENNSYLVANIA AND MARYLAND dictam regionem, insulas, insululas, & ceetera prsemissa, praefato modo Baroni de Baltimore, & haeredibus & assignatis suis, ad solum & proprium opus & usum ipsius modo Baronis de Balti- more, hseredum & assigriatorum suorum, imperpetuum; — Tenend' de nobis, heeredibus & successoribus nostris, Regibus Angliee, ut de Castro nostro de Windsore, in comitatu nostro Berks, in libero & communi Socagio,per fidelitatem tantum pro omnibus Servitiis, & non in Capite, nee per Servitium militare. Note. We say no other English Map, of those Parts, was then extant, but Captain Smith's only. This last Charter has such names of Places in it, that it is be- yond presumption, that it was described from Captain Smith's Map. We defy the Defendant to shew any Map, English or foreign, of that Time, but Captain Smith's only, that has all those Names of Places in it which are mentioned in his Charter. And the Defendant will be under some Difficulty, to make a Part of a Peninsula, (which is the first Description in his Char- ter) mean to extend above the whole Peninsula into the main Continent, up to the 40th Degree compleat. He will be under the greater Difficulty, to make such a Part of the Peninsula, as is bounded Eastward by the Sea only, ex- tend up in to the main Continent, above all the Bay and above great Part of the River of Delaware; neither of which are men- tioned for his Eastern Boundaries. He will be under a third Difficulty, as his Bounds are taken from' the South, and extend Northwards, only usque ad such Part of the Bay of Delaware on the North as lay under the 40th Degree, to extend it all through the whole 70 Miles of that 40th Degree, quite up to the 40th Degree compleat, especially as no Part of Delaware Bay runs so high as to the 40th Degree, but the very Head of that Bay is proved to be 30 Miles below Newcastle. And he will be under a 4th Difficulty, as by the express Words of his Charter, his Bounds are to extend Nortwards only usque ad such Part of Delaware Bay as lays under the 40th Degree, where New-England ends, to extend those Bounds to the Head and further Part of that Degree, when, we see, that New-Eng- land had, before, the whole 40th Degree inclusively, granted to it. So that every Description whatever, contained in his Patent, (and, by the way, every subsqeuent Description, at any Time afterwards made by the Crown) all confine him to the 39th De- gree compleat. And, when so confined, then, his Ancestor asked, and the Crown granted, nothing, but what was hactenus inculta. BOUNDARY QUESTION. 227 Under the last Chapter in this Brief, before we come to the Depositions, will be contained the Opinions of three great Law- yers, relating to the Construction of Lord Baltimore's Charter ; which, tho' not Evidence, nor yet proved in the Cause, are yet extremely well worth the perusal, and much to our purpose. Chap. II. From the Lord Baltimore's Grant in 1632, to the End of the Year 1663 ; during all ivhich Time the Dutch and Swedes remained in the quiet Possession of tuhat is now New York, and also of Delaware, lohich now makes the three Lower Counties, free from any Claim by Lord Baltimore, or by the English Crown, (and in one single Instance, dotvn loiver than 1663, viz. to 3 July 1664. ) 1633. June 28. An Order of Council in the following Words. At the Star- Chamber, present Lord Keeper, Lord Privy Seal, and eleven other Lords. Whereas a Petition, heretofore presented to the Board by the Adventurers and Planters of Virginia, shewing, that, by reason of some Grants lately obtained of a great Pro- portion of Lands, and Territories, within the Limits of their Colony and Places of their Trafflck, they were much prejudiced and discouraged in the Proceeding with the said Plantations, was, by his Majesty, referred to the Consideration of the Board, to the end their Lordships might examine and report the true State thereof, together with their Opinions concerning the same. This Day, the Lord Baltimore, who hath a Grant from his Majesty of a Proportion of the said Lands, and divers of the Principal Adventurers and Planters, being called before the Board, and their Lordships having heard the Allegations then made, on both Sides, did, for the better preparing of the Busi- ness against their next Sitting (appointed to be on Wednesday next) Order and direct, that the Lord Baltimore, and two or three of the said principal Adventurers, should forthwith meet, and confer together, and endeavour, amongst themselves, to accom- modate the Points in difference, arising between them, or so many of them as they could, and to set down the same so agreed on in Writing; as likewise, such points, wherein they shall differ, together with their Exceptions and Reasons; and to present the same to the Board, at their said next Sit- ting; at which Time they are, likewise, to bring with them a Map of the said Plantation, upon View whereof their Lord- ships may better discern how the Proportion granted to the Lord Baltimore is limited and bounded. This is proved to be a Copy from the Council-Register by Dickenson, and is the Ex- hibit, Co-Off. No 1. July 3. Another Order of Council in the following Words. At the 228 PENNSYLVANIA AND MARYLAND Star-Chamber. Present, Lord Keeper, Lord Privy Seal, and 8 other Lords. Whereas an humble Petition of the Planters in Virginia, was presented to his Majesty, in which they remon- strate, that some Grants have lately been obtained of a great Proportion of Lands, and Territories within the Limits of the Colony there, being the Places of their Traffick, and so near to their Habitation, as will give a general Disheartening to the Planters, if they be divided into several Governments, and a Bar to that Trade which they have long since exercised towards their Supportation and Relief, under the Confidence of his Majesty's Royal and Gracious Intentions towards them, as by the said Petition more largely appeareth ; Forasmuch as his Majesty was pleased, on the 12th of May last, to refer to the Board the Con- sideration of this Petition, that, upon the Advice and Report of their Lordships, such Order might be taken as to his Majesty's Wisdom should seem best. It was thereupon ordered, on the 4th of June last, that the Business should be heard tne second Friday in this Term, which was the 28th of the last Month; and that all Parties interested should then attend, which was accordingly performed ; And their Lordships, having heard the Cause, did then order that the Lord Baltimore, being one of the Parties, and the Adventurers and Planters of Virginia aforesaid, should meet together, between that Time and this Day, and accommo- date their Controversy, in a friendly manner, if it might be; and likewise set down in Writing, the Propositions, made by either Party, with their several Answers, and Reasons, to be presented to the Board this Day, which was likewise accord- ingly done. Now, their Lordships having heard and maturely considered the said Propositions, Answers, and Reasons, and whatsoever else was alledged on either part, did think fit to leave the Lord Baltimore to his Patent, and the other Parties to the Course of Law, according to their Desire. But, for the preventing of further Questions and Differences, their Lord- ships did also think fit and Order that, Things standing as they do, the Planters, on either side, shall have free Ti-affick and Commerce, each with other; and that neither part shall receive any fugitive Persons belonging to the other, nor do any Act which may draw a War from the Natives upon either of them. And lastly, that they shall sincerely entertain all good Correspondence, and assist each other on all Occasions, in such manner as becometh Fellow-Subjects and Members of the same State. This is proved to be a Copy from the Council- Register, by Dickenson, and is the Exhibit Co-Off. No. 2. Note. The two last foregoing are real Orders of Council, and, because mentioned by Lord Baltimore, are here inserted ; but they de- BOUNDARY QUESTION. 229 termine nothing, either one way or other, nor are of any Con- sequence in the present Matter. 1635. April 25. A Copy from the Papers remaining in the Office of the Lords Commissioners for Trade and Plantations, of a Minute made and recorded at a very solemn Meeting of the President (Lord Gorges) and Council of New England, which is intitled, A de- claration of the Council of New England for the Resignation of the great Charter, and the Reasons moving them thereto. This Paper pathetically enumerates the Troubles, Charges and Loss of their Friends abroad, which the Adventurers had suf- fered, from the Time of their Grant till then ; the many litigious Questions moved against them by the Virginia Company, both before the King in Council, and in Parliament at home, where- by the Adventurers grew disheartened, and that many of their ablest Supporters had died ; that the French Ambassador had made a Claim; that, at length, other People got Patents, and intruded upon these Adventurers, and rent in Pieces his Majesty's original Grant, and these Adventurers designed Un- dertaking; and that Complaints coming over, to this President and Council, that had not sufficient Means to redress them, or to give Satisfaction to the Persons aggrieved, they were forced to Petition his Majesty, who referred it to the Lords to consider of the Means of Reformation; which Lords, finding fault with this President and Council, and calling for them from their Homes, far remote in the Country, at unseasonable times, to their great Charge and Trouble, whereupon the Presi- dent and Council, after clearing themselves, referred it to the Lords, to do what they thought fit; who found Matters so de- sperate, as that they saw a Necessity for his Majesty to take the whole Business into his own Hands, if this President and Council could not rectify what was brought to ruin; who, finding it a Task too great for them to perform, rather chuse to resign all into his Majesty's Hands, to do as he pleased. After all these Troubles, and upon these Considerations, it is now Resolved, that the Patent shall be surrendered to his Ma- jesty, with Reservation of all such Rights as any have been seized with, that it may please his Majesty to pass particular Grants to the President and Council, of such Proportions as they have mutually agreed upon, and as are before recorded in that Book : And so much they have thought fit to be re- corded, that Posterity may know the Reasons and Necessities moving them to quit themselves of those Inconveniencys and Dangers, &c. This is proved to be a true Copy by Mr. Gal- librand, and is the Exhibit Botra No 1. 230 PENNSYLVANIA AND MARYLAND May 1. A Copy from the Original Papers remaining in the Board of Trade, of a Petition to the King, from Edward Lord Gorges, President of the Council of New England, in the Name of him- self, and divers Lords and others of the said Council, setting forth that, forasmuch as they were, presently, to join in a vol- untary Surrender of the Grand Patent of their Corporation, to his Majesty, they pray his Majesty to order his Attorney Gen- eral to draw Patsnts, for Confirmation of such Parcels of Land, as by mutual Consent in their Court had formerly been al- lotted to them, with such Privileges and Immunitys as here- tofore they might have enjoyed with their Lands, by Virtue of the said Grand Patent. This is proved to be a true Copy by Mr. Gallibrand, and is the Exhibit Botra No 2. June 7. A Copy from the Books remaining in the Plantation Office of the Act of Surrender of the great Charter of New England to his Majesty. Whereby the President and Council, reciting their said Charter of the 3d of November, in the 18th of King James the 1st, do give, grant, assign, yield up and surrender to his Majesty, the said Charter, and the Libertys, Licences, Powers, Privileges and Authoritys thereby granted, and all their Right, Estate, Title, Interest, Claim and Demands, of, in and to the same. In Witness whereof (it is there said) the said President and Council had caused their Common Seal to be thereto put; and the Entry in the book has a Mark to it thus. L. S. This is proved to be a true Copy from the Book, by Mr. Gallibrand, and is the Exhibit Botra No 3. Note. This Original Surrender no where appears, neither is it en- rolled in Chancery; for which Reason we took in some other Papers leading to it. But, of it self, it is a Matter sufficiently notorious, since Seven or Eight of our present Colonys sprung up, and were created, out of the old great New England Charter since the Surrender thereof. Note also. That when the New England Charter was surrendered, the Crown might (then) grant the 40th Degree, if it could gain the Possession thereof. Sept. 8. A thin Quarto Book, printed this Day, Month and Year, in- titled, A Relation of Maryland, together with a Map of the Country, the Conditions of Plantation, his Majesty's Charter to the Lord Baltimore translated into English, &e. .which gives BOUNDARY QUESTION. 231 an Account of the Adventurers under Lord Baltimore's Patent going to and first landing in the Country, on the 24th of Feb. 1633. At Fol. 13 there is Chap. 2, a Description of the Country, wherein it's said "that it is seated between the Degrees of 38 "and 40 of North Latitude, Virginia bounds it on the South, " New England on the North and the Ocean on the East. " At Fol. 21 it is said thus, " You shall find, in the Southern Parts of " Maryland, all that Virginia hath naturally ; and, in the North- "ern Parts, what New England produceth; and he that reads "Capt. John Smith shall see, at large, discoursed what is in "Virginia, and in Mr. William Wood (who, this Year hath "written a Treatise of New England) he may know what is "there to be expected. " Again, at Fol. 38 and 39 (tho' mis- "mark'd Fol. 22 and 23) there is Chap. 6, Conditions propounded, "by the Lord Baltimore, to such as shall go or adventure into "Maryland." Again in Fol. 41. "There isconveniency of Pas- "sage thithsr in most Months of the Year, and any one that "will send unto Mr. Peasley or Mr. Morgan's House," (Note, in the Title Page it is said, that these Books were to be had of those two Persons) " may, there, be informed of. the certain "Time, when any of his Lordships's Company is to go away, " and so save the Charge of unnecessary Attendance here in "London." The whole Book, indeed, is an Invitation to Per- sons to go over and settle there. But, what we prize it most for, it has a fair Map of Chesopeak Bay, and the Peninsula, with my Lord Baltimore's Arms upon it. In which Map the Lines of Northerly Latitude are laid down, and he plainly makes his Bounds in the Map, agreeable to what had been said in the Body of that printed Book, to begin at the 38th Degree compleat ; and to end at the 40th Degree compleat. So far, it is a very early Claim to have to the 40th Degree compleat ; but then he makes that 40th Degree compleat. to cut the Head of Chesopeak Bay, and not be any thing at all above the Head of Chesopeak Bay : (Whereas we have now granted to him many Miles up into the main Continent, as a valuable Consideration for his Agreement.) This Book is proved, in the Cause, by Dr. Stack, to have been 40 or 50 Years in the Custody of Sir Hans Sloane, a great Collector of old Tracts, and will be produced at the Hearing by Dr. Stack. We have also an incompleat printed Copy of it, and a manu- script Copy of the Map, proved to be Copys thereof, (so far as they go,) by the same Dr. Stack; and is the Quarto Book Mary- land 1635 . We have also another Copy of my Lord Baltimore's Map, contained therein, spoken to by Mr. Eastburne, and is in a large marbled Cover. 232 PENNSYLVANIA AND MARYLAND 1638. Apr. 4. Is the Copy of a pretended fictitious Order of the Lords of the Council, insisted on by the Defendant now ; first produced and made an ill use of, before the Board of Trade, by his Grand- father, in 1685, and afterwards by the Defendant himself, ex parte, again, in 1734; tho' there was not then, neither is there now, any Thing like an original, or an authentick Copy of it; not- withstanding that the Council Registers of that very Day, are ex- tant, and many other Orders are found therein of that very Date. This blank Paper is in the following Words, viz. At White- hall the 4th of April 1638. Present Lord Archbishop of Can- terbury, Lord Keeper,Lord Treasurer, Lord Privy Seal, Earl Mar- shal, Earl of Dorset, Lord Cottington, Mr. Treasurer, Mr. Comp- troller, Mr. Secretary Cook, Mr. Secretary Windebank. Whereas a Petition was presented, to his Majesty, by Capt. William Clay- borne, on the Behalf of himself aud Partners, showing that, by Virtue of a Commission, under his Majesty's Hand and Signet, they, divers Years past, discovered and planted upon an Island, in the great Bay of Chesopeak, in Virginia, named by them the Isle of Kent, whereupon (they pretended) they had bestowed great Charges; and that the Lord Baltimore (as they alledged) taking Notice of the great Benefit that was likely to arise to them thereby, obtained a Patent from his Majesty, comprehend- ing the said Island within the Limits thereof; and that they had likewise settled another Plantation, upon the Mouth of a River, in the Bottom of the said Bay, in the Sasquesahanoughs Country which the said Lord Baltimore's Agents there (as they alledge) sought to dispossess them of; pretending, likewise, great Injuries and Violence offered to them, in their Trade and Possessions in those Parts, by the said Agents, in killing some of the said Capt. Clayborne's Men, and taking their Boats, contrary to the said Commission and the express Words of a Letter from his Majesty, under his Hand and Signet; and therefore, besought his Majesty to grant, unto the Petitioner, a Confirmation, under the Great Seal, of his Majesty's said Com- mission and Letter, for the quiet keeping, enjoying, and gov- erning of the said Island, Plantations and People, with other Additaments of Lands and Immunitys in those Parts; and like- wise, that his Majesty would refer the Examination of the said Wrongs and lnjurys, to such as his Majesty should think fit, as by the said Petition more at large appeareth ; Forasmuch as his Majesty was pleased, at Newmarket, on the 26th of February, 1637, to refer the consideration of the Petitioner's Request, unto the Lord Archbishoo of Canterbury, the Lord Keeper, the Lord Privy Seal, and any other the Commissioners for Planta- tions, who should be near at Hand, and whom they pleased to BOUNDARY QUESTION. 233 call, and withall to advise with Mr. Attoimey General, for the preparing- and settling the Grant desired, for his Majesty's Signa- ture, and to examine the Wrongs complained of, and certify his Majesty what they thought fit to be done for Redress thereof, whereupon all Partys attending their Lordships this Day, with their Counsel learned, and being fully heard, the said Com- mission and Letter being likewise read, it appeared clearly, to their Lordships, and was confessed by the said Clayborne him- self, then present, that the said Isle of Kent is within the Bounds and Limits of the said Lord Baltimore's Patent, and the said Capt. Clayborne's Commission (as it likewise appeared) was only a Licence, under the Signet of Scotland, to Trade with the Indians of America, in such Places where the said Trade had not been formerly granted by his Majesty to any other ; which Commission, their Lordships declared, did not extend, nor give any Warrant to the said Clayborne, or any other, nor had they any Right or Title, thereby, to the said Island of Kent, or to Plant or Trade there, or in any other Parts or Places, with the Indians or Savages, within the Precincts of the Lord Baltimore's Patent; and their Lordships did likewise de- clare, that the aforesaid Letter, under his Majesty's Signature, which had reference to the said Commission under the Signet of Scotland, was grounded upon Misinformation, by supposing that the said Commission warranted tlie Plantation in the Isle of Kent, which (as now appears) it did not : Whereupon, as also upon Consideration of a former Order of this Board, of the 3d of July 1633, wherein it appeared that the Differ- ence, now in Question, being then controverted, the Lord Bal- timore was left to the Right of his Patent, and the Petitioners to the Course of Law; their Lordships having resolved and de- clared, as abovesaid, the Right and Title to the said Isle of Kent, and other Places in Question, to be absolutely belonging to the Lord Baltimore, and that no Plantation, or Trade with the Indians, ought to be within the Precincts of his Patent, without Licence from him, did, therefore, likewise think fit and declare, that no Grant from his Majesty should pass to the said Clayborne, or any others, of the said Isle of Kent, or other Parts or Places within the said Patent, whereof his Majesty's Attorney and Sollicitor General are hereby prayed to take Notice; and, concerning the Violences and Wrongs, by the said Clayborne and the rest complained of in the said Petition to his Majesty, their Lordships did now, also, declare, that they found no Cause at all to relieve them, but do leave both Sides therein to the ordinary Course of Justice. This is spoke to by Mr. Gallibrand and Mr. Paris, also by Dickenson, and is the Exhibit Botra No 4. 284 PENNSYLVANIA AND MARYLAND Now follows a great Number of Dutch Records, remaining in the Secretary's Office of New-York, authenticated from thence, under the King's Great Seal of that Province; and also their being true Copies, and the Translation of them, proved by two Witnesses in the Cause, viz. Messrs. Noxon and Vanderspiegel. These sort of Records now reach down (without any other sort being intermixed with them) to the 28th of October 1658, which is for 20 Years together. 1638. May Q. A Copy, from a large Dutch Book of Record, being a Protest, whereby William Kieft, Director General of New-Netherland, residing on the Island Manhatans, and in Fort Amsterdam, under the Government of the States General of the United Netherlands, and the West-India Company at the Chamber of Amsterdam, makes known to one Peter Minuit, Commander in the Service of the Queen of Sweden, that the whole South River of New River, has been, many Years, in the Dutch Pos- session ; and above and below settled by Dutch Forts ; and also sealed with the Dutchmen's Blood ; the which had happened, even during the said Minuit's Direction in the New Nether lands, and was well known to him. Now, because the said Minuit comes between the Dutch Forts, and begins to build a Fort there, to the Damage and Prejudice of the Dutch, which, nevertheless, we the Dutch Mali never suffer; and we being assured the Queen of Sweden has given you no Orders to build in our Rivers, or along our Coasts : Therefore, in case you proceed in the building Fortifications, manuring of Lands, and trading for Peltry, or attempt any thing to our prejudice, we protest for all damages, Miseries, Bloodsheds and Troubles^ and that w« will maintain our right, in such a manner, as we shall find most suitable. This is Dutch Records, New- York, No 2, Fol. 4. 1638-9. Feb. 3. A copy from the same Book of Records, of a Judgment given against one Coinclisse, for wounding a Soldier in the Fort, con- demning him to serve the Company, along with the Blacks, to be sent by the first Ship to the South River, to serve the Company there, and to pay a Fine to the Fiscal, and Damages to the wounded Soldier. This is Dutch Records, New-York, No. 2, Fol. 5. 1639. March 31. Another Copy, from the same Book, being an Ordinance which recites that many Persons, Companies, and Servants as Setlers, do dare, against the Orders of the States- General and the West India Company, to sell to the Indians, Guns, Powder, andLead ; BOUNDARY QUESTION. 235 therefore every Inhabitant of New Netherland is forbidden #he same, on Pain of being punished with Death : Also every one is Avarned, not to go, with Boats or Vessels, to Fort-Orange, (South-River, or Fort-Hope, without a Writing from the Di- rector-General, and on their Return, a Note from the Factors of the said Places, residing there for the Company, on Pain of Forfeiture of the Ships, Vessels, and Cargoes to the Profit of the Company, and of further Forfeitures. Publish'd in Fort- Amsterdam. This is Dutch Records, New-York, No. 2, Fol. 5. 1642. May 15. Another Copy from the same Dutch Book of Records, being an Order or Resolution ; taking notice that some English had dared to come into their South River, across over against their Fort Nassau, where they had seated themselves in the Schuilkill, without, having Commission from any Potentate, being a Matter of ill Consequence, and Disregard of their High Mighti- nesses, and the Interest of the West-India Company, whereby their Trade, which they have in the South River, is made use- less; therefore it's resolved, in the Assembly, to fetch away the English, from the Schuilkill, in the properest manner possible. This is Dutch Records, New- York, No. 2, Fo. 6. May 22. Another Order from the same Book, for Jan Jansen van Ilpen- dam, Factor of the West-India Company, how to conform him- self, in the South River of New Netherland ; namely, to go, with two Sloops, and as many Men as he can procure in the Schuilkill, where the English have now lately taken Possession, and de- mand of the English their Commission, and by what Authority they have dared to take from us our Jurisdiction, Goods, and Commerce, and having no Royal Commission to seat themselves in our Limits, he shall constrain them peaceably to depart, that no Blood be spilt : If they refuse, to secure and bring them on board the Sloops, hither; taking care that He remains Mas- ter, and maintains the Reputation of their High Mightinesses and the West-India Company; and after the Departure, or Seising, of the English, to ruin the said Place to the Ground. Done in Our Assembly at Fort Amsterdam, in New Netherland. This is Dutch Records, New- York, No 2, Fo. 6. 1644, March. From the same Book, a Notification, from the Fiscal General of New Netherland, to one Govert Cookermans, that he should not undertake, in the Company's usual Trading place, where the Factor Jan Jansen van Ilpendam uses to trade, in the South River of New Netherland, to trade with the Indians; and, in case he shall do, or has done, to the contrary, then the Fiscal 286 PENNSYVLANIA AND MARYLAND General protests against him for all Damages the honourable Company shall suffer. This is Dutch Records, New-York, No. 2, Fol. 4. 1646, Jxdy 2. From the same Book, a very formal Patent, from William Kieft, Director-General, and the Council, under the Prince of Orange, and the West-India Company residing in New Nether- land, granting to Abraham Plack, Simon Root, Jan Andrieson, and Peter Harmens, that they may settle themselves in the South River, and take Possession of the Lands lying therein, almost over-against the little Island called Vogels Sant; of which Land is granted to them 100 Morgen of Land to settle 3 or 4 Plantations: under Condition to acknowledge the Mana- gers before-named for their Lords and Patrons, under the Sov- ereignty of their High- Mightinesses; and to be subject to all such Rates and Duties as are already, or shall be establish'd ; and the said Land is further described to be lying on the West- side of the South River. Dated at Fort New Amsterdam, with Promise of further Land, provided they build. Signed by Order of the Director-General and Council of New Netherland, and their Secretary, and sealed with red Wax. This is Dutch Records, New-York, No. 2, Fol. 26. 1647, Sept. 20. From another Dutch Book of Orders and Resolutions, Pro- position made by the General, Peter Stuyvesant, to the Board of the Honourable Council. 6. Whether Andries Huddie shall continue in the South River, or who to send thither; because it is highly necessary that a fit Person be continued there? By the Director General and Council it is resolved to continue the said Andries Huddie, for the Service of the West India Company, as Factor in Fort Nassaw, in the South River of New Nether- land, and he to have Appointment and Wages, as allowed to other Factors abroad. This is Dutch Records, New York, No 2, Fol. 26. We have seen what Officer Andries Huddie was, under the Dutch. 1648, Nov. 17. Now follows, from the Dutch Records, a Report, or Repre- sentation, made by A. Huddie dated at Fort Nassaw in New Netherland, 17 Nov. 1648, with this Title; A short, yet true, Declaration of the Proceedings of Johan Prints, Governor over the Swedish Troops in the South River of New Netherland, as also the Swedish Settlement in the said River, found in the first of November, 1645. This Piece is long, wherefore we shall BOUNDARY QUESTION. 237 give a short Extract of it. He says, At the coming in of the River, three Miles from the Mouth, upwards, on the Eastern Shore, lyes a Fort, called Elsingburgh, garrisoned with 12, and a Lieutenant, four Cannon of 12 Pounders, and a Potshead, and that that Fort was erected by Johan Prints, and,, by that Fort, keeps the River close to himself, and stops all Vessels there, even those of the Honourable Company, going from the Manhatans to their designed Place, even by firing at them, so that they must go up the River, about six Miles, to the said Prints, for Leave to come up higher. Further up, on the Western Shore, in the Mingas Creek, lyes a Fort called Christina, no setled Garison, but is reasonably provided, and is the Chief Place of the Trade, where the Factor keeps his Residence, and there is the Magazines of all Merchandizes; and this is the first Fort that is built by the Swedes, under the Command of Peter Min- uit, in the Year 1688, altho' the Company had sufficient Settle- ments, in the River, of Fortifications, Men, and Stores of War, and that, above 14 Years before the Swedes had; which Peter Minuit has served the Honourable Company as Director in this Country. Further, on the same Side, about two Miles up, they begin to settle some Plantations, which they continue for about a Mile, but the Houses few and scatter'd, and stretch as far as about the Island Tinnekonk ; Where the Governor Prints re- sides, lyes a pretty strong Fort of Pine Beams, but it was burnt down, 5 December 1645. What relates to the Schuilkill, Avhich are the Honourable Company's purchased and possessed Lands, He has ruin'd the Company's Buildings; and, instead thereot, erected a Fort, about Musket Shot from the Creek ; which Creek is the only Place left for Trade with the Mingaes, and, without that Trade, this River is of small Importance. Further, a little beyond this Fort, near Kinsessinge, which has been a Continual Place of Trade for us with the Mingaes; but is now possessed by the Swedes, with a Strong House. Further, about half a Mile, through the Woods, Governor Prints, has erected a Mill, on a Creek that runs into the Sea, a little to the South- ward of Matinneconck. And, over the Creek, a Strong House, right upon the Path of the Mingaes. So there is no Place open, to draw in the Mingaes, as he has, in his Hands, the greatest Power of the Trade with the River Indians, who go a hunting, and can't come through, without passing by this Place. The Strength of his People consists in about 80 or 90 Men, at most Freemen, and Servants; wherewith he must garrison all his Places. The Fortifications and Garrisons of the Honourable Company, because they are sufficiently known, (says Andrew Huddie) is here left out. Then, he goes on to report what hap- pened, between himself and the Swedish Governor Prints, on 238 PENNSYLVANIA AND MARYLAND the 23d of June, 1646, who stopt then a Vessel, Julian Blanck Master, and Cargo, sent to the said Huddie for Trade to the Schuilkill, and of the several Debates and Conferences, and Papers, that pass'd thereon ; Huddie insisting on the Right of the Dutch, and their West India Company, and Governor Prints insisting on the Right of the Queen of Sweden, and stopping that Ship. Then Huddie proceeds to give an Account that, on 7 Sept. 1646, he having received strict Orders to buy Land of the Indians, on the Western Shore, about a Mile North from Fort Nassaw,he did so and put up the Company's Arms thereon, and took Possession thereof, and several Freemen made ready to build there : But, the Swedish Factor, Huygen, came down, from above, took down the Arms, and committed a great Riot and Disorder there, on the 30th of the same September, and brought down Governor Prints's Protest, declaring it wa s the Queen of Sweden's own Ground, and Lands, and taking Notice that these secret underhand new Purchases, by the Dutch, shewed how little was to be relyed on of their pretended ancient Right, thentofore talkt of by them. And that Protest was dated at New Gottenburg. The said Huddie also relates his firing at, and endeavoring to stop, a Swedish Vessel, going by Fort Nassaw up the River on the second of April, 1648, and gives a Copy of the Protest which he sent, upon that Occasion, to Governor Prints. He also reports that, as the Swedes had carryed many Pine Beams to the Schuilkill, so he, apprehend- ing they meant to build at the Places where the Vessels lye and trade, sent an Account thereof to the Dutch Goverenor, who sent him Orders that, if the Swedes should come to build, and a new Settle any unsettled Places, he, the said Huddie, should, in the Name of the Company, with all Civility, settle next to him ; and having received Accounts that the Swedes had anticipated, and already made some Buildings there, he went thither, and, by the Consent of the Sachems, attempted to build, and Sachems did the Swedes go off, for that they the Swedes had possessed against the Sachems Mind, who had given it to Huddie; and Huddie planted the Prince's Flag, &c. , in Token of Possession, and erected the House; but, in the Evening, the Swedish Factor, and seven or eight Men, came and enquired into it; The Indians sayd they had sold it us, and that we should dwell there, and that the Swedes had nothing to do to build there, for that they possessed enough already, in Matinnekonk, the Schuilkill, Kinsessingh, Kakari- com, Upland, and other Places, which had been altogether stole from them ; Minuit, about 11 Years past, having bought no more than a small Piece at Paghahackinge, to plant some To- bacco, whereof the Natives were to have one half for an Ac- BOUNDARY QUESTION. 239 knowledgment, and that the Swedes were now lately first come into the River; but we, the Dutch, had conversed here above 30 Years; so Huddie proceeded in the Work, and set Pallisadoes about the House; but the (Swedish) Lieutenant of the Fort in the Schuylkill come, with 24 Men, with Fire- Arms and Matches, and with Axes destroyed the whole Work. That on the 10th of June the principal, and true Owners publickly conveyed the Schuilkill,and renewed the Sale which was formely made to Ar- ent Corse, (former Factor there) of the Schuilkill,and the Lands adjoyning, whereof two of the Dutch Council took publick and lawful Possession. After that, one Hans Jacobse began to seat himself in the Schuilkill, but was obstructed by the Swedes, commanded by Governor Prints, who burnt what Jacobse was building. So also, one Thomas Broen went to seat himself at Newhooven ; but, after three Hours, the Swedish Adjutant came and pulled that down. Afterwards, on 8 September, News came that the Swedes had set up a House before the Fort Beevers Reede, whereby the Approach to that Fort is shut up. And came in the Night, and pulled down the Palisadoes of that Fort, and broke through it, whereupon the said Huddie sent a Pro- test to the Swedish Governor Prints. And thus ends this Report. And this Exhibit is Dutch Records, New York, No 2, and begins at Fol. 7. 1649. Apr. 15. The Copy of an Original Indian Deed of Sale to the Dutch, of Lands in the South River, whereby Bycheske and Hysiackan declare, in the Presence of several Indian Witnesses, being the Chief of those Quarters, and of the Commonalty there, to sell, in Consideration of a Parcel of Merchandize received in Hand. A certain Parcel of Land, in the South River of New Nether- land, on the East Side of the said River, stretching from the Land called Roophakesky, being over against the Creek of Nejeck Northerly, up, along the River, to the South Corner of an Island called Pincoe Rockanningh, which Place is called by the Natives Mechopinachan, further up the Wyquanaonge, Wysoktchouck, Nepatchtea, Pepiscrikas, are over the Southerly End of the said Is- land, and further beyond the said Island, unto Necheckei- ouw, further up the River, and is called Passanoonoe, Andemoerara, and herein is comprehended the said Island Pincoe Rockaningh, within these Limits and Bounds being, and up in the Country four Miles, or so much more or less as the Possessors shall think fit. To hold to Andries Huddie, Alexander Boyer, Simon Root, Peter Harmans, and others. This is Dutch Records, New York, No 2, Fol 27. ^40 PENNSYLVANIA AND MARYLAND 1654. Octob. 17. From the same Book of Records, a Protest signed by Hen drick van Deswick, Factor of the General Council of Trade, and Southern Company in Sweden, directed to the general Director and Council of the New Netherland. Complaining that having come into the Fort Amsterdam, with the Ship the Golden Hay, on the 12th of September last, and sent on Shore there for a Pilot, to convey him to the South River, his Ship had been seised and appraised, and he himself and his Men imprisoned, on pretence that the new Swedish Governor, Jan Rising, had caused the Fort Casimir to be taken from them ; which was a groundless Pretension, because the Dutch had built that Fort in 1651, on the Queen of Sweden's Ground, by Violence and Force, and against which the late Swedish Gov- ernour Johan Prints had then protested ; so that the new Swedish Governour Rysing has taken nothing from the Dutch) but only recovered that which belongs to her Swedish Majesty. This is Dutch Record, New-York, No. 2, Fol. 29. Octob. 27. A Counter-Protest, from Peter Stuyvesant, the Director Gen. eral, and the Council of New -Netherlands; offering to restore the Swedish Ship, if their Fort Casimir and the Ammunition, &c. , were restored; Complaining of the Swedes treacherously having seized that Fort Casimir. As to Fort Casimir having been built on the Queen of Sweden's Ground, they declare, that that is not, nor cannot be proved ; but, ont he contrary, the said Director and Council oiler to show, and prove, here in this Country, and not at the Hague or Stockholm, by authentick Writings, and living indifferent Witnesses, Christians and In- dians, the States General, and West-India Company's un- doubted Right and Property on the Lands in the South River; and that, by Virtue of First Discovery, ancient and first Pos- session, sealed with their Blood, the erecting of divers Forts heretofore, both on the Eastern and Western Shore, below, above, and in the Centre of the River, as also by legal Pur- chase, and Conveyance of sundry Tracts, acquired of the true Loi'ds of the Soil, even of that Land on which Fort Cazimir is built; whereon they do not only and absolutely ground their undoubted Right to the whole South River, but on their ancient and first discovery many Years before any other Christian Na- tion, even the Swedes themselves, who, in 1G38, began to anti- cipate on this South River, &c. Dated at New Amsterdam in New Netherlands. This is Dutch Records, New York, No. 2, Fol. 31. 1655, Aug. 31. From the Dutch Book of Records. A Copy of a Receipt BOUNDARY QUESTION. 241 whereby some Person acknowledges to have received, of Thomas Willeth, 1,500 Guilders in black and white Wampum. With an Entry (under the same) signed by the Director and Council, that the General takes that Wampum with him, on the Expe- dition to the South River, to make use of the Moneys for the Service of the Company, for paying of Soldiers, or victualling, or making presents to the Natives. Wherefore if any Accident happens, the Company must pay that Money to Willeth. Also another Entry, that the General and Mr. Sille being going to the South River, whereby the Number of the Council will be reduced, two other Persons are to be assumed and added to the remaining Councillors. This is Dutch Records, New York, No. 2, Fol. 28. 1655. From another Book of Dutch Records, A Commission, from the Dutch Governour Peter Stuy vesant, and the Council at New Amsterdam in the New Netherlands, appointing John Paul Jacques, Vice Director and Chief of the said South River of New Nether] and, as also over the Fortresses, Lands, and other Places lying on the said River, and for the Security of the Fort Casimir, and other Places, to keep and establish good Orders, and cause the same to be observed in all matters relating to Trade, Policy, Justice, and Militia, as also over the sol- diers, sailors, free Persons, high and subaltern Officers, &c. To command all, for the West-India Company's Service, to ad- minister Right and Justice, as well in Civil as in Military, &c. This is Dutch Records, New York, No. 2, Fol. 41. 1656, Apr. 12. From the like Book, A Grant, from the Director General and Council of the New Netherlands, past at New Amsterdam, granting, unto Thomas Broen, a Plantation lying in the South River, below Fort Casimir. Dutch Records, New- York, No. 2. Fol. 38. Aug. 25. Another like Grant unto Jacob Dehinse, of two (Town) Lots, near Fort Casimir, being the 18th and 67th Lots. Dutch Records, New York, No. 2, Fol. 38. Sept. 1. Another like Grant, unto Jan Picolet, of Land, in the South River, to the Southward of Fort Casimir, bounded on several other Persons Plantations. Dutch Records, New York, No. 2, Fol. 39. Sept. 12. Another like Grant, to Philip Jansen Ringo, of a Lot for a 16— Vol. XV. 242 PENNSYLVANIA AND MARYLAND > House and Garden, below Fort Casimir, bounded on another Plantation in the South River. Dutch Recurds, New York, No. 2, Fol. 39. Sept. 13. ' Another like Grant to Constantine Groenenburgh, of a Lot for a House and Garden, in the South River, below Fort Casi- mir, being Lot No. 20. and bounded by other Persons Lots. Dutch Records, New York, No. 2, Fol. 39. Sept. 13. Another like Grant to Hans Alberts, of a Lot for a House and Garden in the South River, by Fort Casimir, in the second Row, bounded by several other Neighbours. Dutch Records, New York, No. 2, Fol. 40. Sept. 22. Another like Grant to Jan Hendrickse, of a Lot for a House and Garden in the South River, by Fort Casimir, being the 35th Lot in the second Row, bounded on several Neighbours. Dutch Records, New York, No. 2, Fol. 40. Nov. 30. Another like Grant to Andries Huddie, of a Lot for a House and Garden in the South River, nigh Fort Casimir, being the 15th Lot. Dutch Records, New York, No. 2, Fol. 37. Nov. 30. Another like Grant, to Alexander Bowyer, of a Plantation in the South River, to the North of Fort Casimir, bounded by one Neighbour. Dutch Records, New York, No. 2, Fol. 37. 1657. Apr. 12. A Conveyance from the Director and Council of New Nether- lands, (in Virtue of Orders rceeived from the West-India Com- pany, bearing Date 19 Dec. 1656,) unto Jacob Alricks, Director and Commissary (under the City of Amsterdam) over their Colony in the South River, the Fortress Casimir, now called New Amstel, with a,ll the Lands thereunto, according to the first Sale of the Natives dated 19 July 1651, beginning on the West-Side of Christina Kill, to the Mouth of the Bay or River called Boomties Hooke, and as far up into the Country, as the Limits of the Minquaes; to hold, to the said Jacob Alricks, to the use of the Burgomasters and Governours of the City of Amsterdam. Dutch Records, New York, No. 2, Fol. 34. 1658. Apr. 20. Peter Stuyvesant, the Governour. lays, before the Council at New Netherlands, several Matters for redress of the Company's Affairs in the South River, that necessary Orders might be set- BOUNDARY QUESTION. 243 tied there, and the Rights of the West-India Company might be taken care of ; particularly, in collecting the Customs, for goods inwards and outwards, because there are great Frauds, much Peltry being shipped of, without Entry; and several of the In- habitants of the Colony of New Amstel petition to settle about ttie Fortress Altena, within the District of the Company, and to begin Plantations ; also, some necessary Orders are wanting, concerning the Swedes. On all which Matters the Council advise Governor Stuyvesant to go thither, himsef speedily. Dutch Records, New York, No. 2, Fol. 35. Octob. 28. A Commission, from the Director General and Council of the New Netherlands, appointed William Beckman, Factor and Vice Director over the Lands, Forts, standing Forces and Free People on the South River, to keep and make good Orders, Right and Justice amongst them, in Civil and Military, to administer, &c. Dutch Records, New York, No. 2, Fol. 36. 1664. July 3. From the Records in Newcastle County. A Grant from Alexander Hyniossa, Governor of New Amstel, under the Burgomasters of the City of Amsterdam, unto Gerret vaii Sweeringen. of a "Piece of Land, on the South-side of the Fort, in breadth 1600 Rod, and in length 2000 Rod; on Condition to acknowledge the Burgomasters of Amsterdam and the States General for his Lords and Masters, and to obey their Governors and Council there, &c. This is proved to be a true Copy from Newcastle Records, by Messrs. Shaw and Lardner, and is in Newcastle Records, No. 11, Fol. 3. It's hoped, that all these antient Records from one of the King's own Provinces (New York), will most abundantly prove that the Dutch were possessed from 1629 to 1664, of New York, as their head and chief Settlement, and also of the South River, (which is now Delaware River) as dependant on their great Set- tlement. Likewise, that the Swedes, also, had a Possession on the South River and Forts there. It only remains, (on this Head) to fix the several Places men- tioned. To which purpose, we have an ancient Map, which is a Dutch Map, and has the Dutch Arms upon it, and must have been published whilst they had Possession of the Country, (which Possession they ai*e now going to lose immediately) for it was to no purpose to make Maps of any Country after they had lost it. This Map has no Date to it, nor have Maps usually any Dates to them. But it's intitled Novi Belgii, Novteque 244 PENNSYLVANIA AND MARYLAND Anglise, Necnon partis Virginia Tabula, multis in locis emen- data a Nicolao Joannis Visschero. And this Map is spoke to by Mr. Greeme, and is marked Bid, and shews abundance of Matters to our Advantage, viz. 1. It shews that Cape Hinloop, Fort Casimir, Fort Christina, Mattinnakonk, and Schuilkill, are all on the West side of Delaware Bay and River (being that Side where the three Lower Countrys now are.) 2. By calling it, still, Fort Casimir, and not New Amstel, it should seem to have been published before 1657; for we see above, that in April 1657, that Place had got its new Name of New Amstel, amongst the Dutch. Note. Fort Casimir, New Amstel, and now Newcastle, are all of them the successive Names of the self same Place. 3. This Dutch Map lays down the Line of the 40th Degree (compleat) not more than 3 Miles above the Head of Chesopeak Bay. But, above all other Matters, 4. This old Dutch Map, acquits the Plaintiffs of one Imposition which the Defendant would fain charge them with, viz. of put- ting Cape Hinlopen in his Map too low ; he pretending it ought to have been put more Northerly, at the Place where Cape Cornelius was put; for, this old Map (as well as another, which we shall come to in 1671,) lays down both Cape Hinlopen and Cape Cornelius, seperately and distinctly, as two several Capes; and it lays down Cape Hinlopen about 19 Miles more Southerly than Cape Cornelius; and exactly in the self same manner as my Lord Baltimore's own Map of 1732 placed them. So that, indeed, the Plaintiffs did not (in 1732) invent this matter, or impose upon Lord Baltimore therein, as he has most unhand- somly charged upon them, contrary to his own certain Know- ledge, nor did the Dutch orginally, and in their Maps, call the Place Cape Hinlopen, which in my Lord's Map is called Cape Cronelius, (which is the very Matter put in Issue by my Lord's Answer) but their Maps were, inthis respect, mostexactly like my Lord's own Map. BOUNDARY QUESTION. 245 Chap. III. From the latter End of the Year 1663, when King Charles granted New York, &c, to the Duke of York, and the Dutch were consequently dispossessed of their great and small Settle merits, down to the Year 1673 ; during all which time the Duke of York possessed and governed New York, and thelower County s also. 16 Car. II. 1663. Mar. 12. From the Chappie of the Rolls. Copy of the Grant made to the Duke of York by Letters Patent, of all that Part of the Main Land of New England, beginning at St. Croix, next ad- joining to New Scotland in America, and extending, along the Coast, to Pemaquid, and so, up the River thereof, to the furthest Head of the same, as it extended Northwards; and extending, from thence to the River of Kinebequie, and so, upwards, by the shortest Course, to the River Canada, Northwards; and also, all that Island called Mattowacks, or Long Island, lying towards the West of Cape Codd and the Narrohigansetts, abutt- ing upon the Main Land between two Rivers there, severally cal- led Connecticut's and Hudson's River; and the said River called Hudson's River; and all the Land, from the Wf>st side of Con- necticut River, to the East side of Delaware Bay: and also all those several Islands called Martin Vinyards and Nantukett; Together with all the Lands, Islands, Soils, Rivers, Harbours, Mines, Minerals, Quarries, Woods, Marshes, Waters, Lakes, Fishing, Hunting and Fowling, and all other Royalties, Profits, Commodities and Hereditaments, to the said several Islands, Lands and* Premisses belonging and appertaining, with their and every of their Appurts: and all the King's Estate, Right, Title, Interest, Benefit, Advantage, Claim and Demand, of, in or to the same, or any part thereof; To hold to the Duke of York in Fee, to be held of the King, as of the Manor of East Greenwich, in free and common Soccage, and not by Knights Service; rendering 40 Beaver Skins Yearly; with Powers of Government, &c, granted to the Duke of York ; and to appoint Governours, Officers and Ministers under him: And an express Power (Fol. 4. ) to the Duke of York, his Governours and Officers, for their Defence and Safety, to encounter and expulse, by Force of Arms, as well by Sea as by Land, all such Persons as, without their Licence, should attempt to inhabit, within the several Precincts and Limits of his Majesty's said Territories and Islands, &c. This Exhibit is prov'd by Bulmer, and is Rocha No. 4. 246 PENNSYLVANIA AND MARYLAND Note. It's pretended that, as this Grant to the Duke of York, whsn coming from the Eastward, extends only to the E as t side of Delaware Bay. so, that it did not, by express Words, include the three lower Counties, which are on the West side of that Bay: But, it was a very large and extensive Grant, of several very large Tracts and Territories in America, and past (as we say) all Lands appertaining to those extensive Tracts. And this is the single weak Point in our whole Case. This Grant was made, in order to drive out the Dutch, and so they immediately did. 1664. Apr. 2. From the Records, in his Majesty's Secretary's Office in New York, an Exemplification and Inspeximus under the Great Seal there, of a Commission from the Duke of York, of this Date, reciting the said Grant to him, and constituting and appoint- ing, Richard Nicholls Esq; his Deputy Governour, within the Lands, Islands and Places aforesaid, and to follow all such Orders and Instructions as he should from time to time receive from the Duke. This Exhibit is also proved to be a true Copy, , by two Persons, Noxon and Vandespiegel, and is in New York Records, No. 1, Fol. 3. Apr. 23. Copy from the Books at the Board of Trade of Publick Instructions from King Charles the 2d. to Colonel Rich- ard Nichols, Sir Robert Carr, George Cartwright, and Samuel Mavericke Esqrs. his Commissioners, to visit the Colony of the Massachusets Bay in New Engalnd ; the second of those Instructions is (Fol. 5.) to this Effect, viz. You shall, at large, discourse with them, all that we our self have discoursed with you, of reducing the Dutch in or near Long Island, or any where within the Limits of our own Domin- ion, to an entire Obedience to our Government; and to put them out of Capacity of doing the same Mischief as at Am- boyna; and to reduce them to the same Rules and Obedience with our own Subjects there; which you are to let them know is all we aim at, without any purpose of using any other Vio- lence, than is necessary to those Ends; and that no Man shall be disturbed or removed from what he possesses, who will yield Obe- di?nce to us, and live in the same Subjection Avith our other Subjects; and you shall desire Concurrence hereto, from the Massachusets, and such a Number of Men, and all other things as are necessary thereto ; and shall thereupon proceed, in such manner as you shall think fit, either by building of Forts about them, or, by using, such Force as cannot be avoided for BOUNDARY QUESTION. 247 their Reduction, they having no kind of Right to hold what (hey are in Possession of, in our unquestionable Territories, than, that they are possessed of it, by an invasion of us. And, by another Set of Private Instructions, also given to the said Commissioners, at the same time, they were directed by his Majesty, in his first private Instruction, to acquaint all Men, that a great End of their Design was, the possessing Long Island and reducing that People to an entire Submission and Obedience to the King and his Government, now vested, by his Grant and Commission, in the Duke of York, and by raising Forts, or any other way, to secure that whole Trade to our Sub- jects, that the Dutch may no longer engross or exercise it, which they have wrongfully possessed themselves of; that whole Ter- ritory being in our Possession, before they, as private Persons and without any Authority from their Superiours, and against the Law of Nations, and the Alliance between us and their Superiours, invaded, and have since wrongfully detained the same, to the Prejudice of our Crown and Dignity, and therefore ought iii justice, to be resumed by us, unless they entirely submit to our Government ; and live as our Subjects, and, in that Case we will take them into our Protection, and they shall enjoy all their Possessions, (Forts only excepted) and the same Freedom in Trade, as our good Subjects. These Copies are proved by Mr. Gellibrand, and are in the Exhibit Botra No. 5. Apr. 26. Copy, from the Records in New York, of King Charles' Com- mission to those 4 Commissioners to visit the several Colonies in New England, and to hear, receive, examine and determine all Complaints and Appeals in all Causes and Matters as well Military, as Criminal and Civil, and proceed, in all things,. for the providing for and settling the Security of the said Country, according to the Instructions given, or to be given, to them. This is New York Records, No. 1, Fol. 4. Now we shall find the Commissioners got to America,. Aug. 15. A Proclamation, that his Majesty having sent the Commis- sioners, to expel, or reduce to his Obedience all Foreigners, as have seated thpm amongst any his Majesty's Dominions in America; all such, of what Nation soever, as will submit to his Majesty's Government shall enjoy their Possessions and Privileges as his Subjects; which the Commissioners publish, to clear themselves from the Charge of those Miseries that may befall such others, as live there and will not acknowledge the King for their Sovereign. New York Records, No. 1, Fol. 5. 248 PENNSYLVANIA AND MARYLAND Aug. 19. Peter Stuyvesant, Governor and Commander in chief of the Council of the New Netherlands, writes a Letter from Fort Anill, in New Netherlands (to the Commissioners) sent by sev- eral Members of the Council and others, to desire to know the Meaning of an English Man of War arriving in the Bay of the North River of the New Netherlands, about three Days since, and three more arriving there since 'i New Y'ork Records, No. 1, Fol. 6. Aug. 20 Colonel Richard Nicholls writes an Answer, dated from on Boardh is Majesty's Ship the Guinea riding before Maijcktelling the Dutch Governour, that the King's Right and Title to those Parts is unquestionable, and therefore, requires the Surrender of all Forts, Towns and Places of Strength then possessed by the Dutch, and demands the Town upon the Island Manhatoes, with all its Forts to be rendered to him ; promising to secure Life and Liberty to those who submit, and those who oppose must expect the miseries of War. And this he sends by Mr. Cartwright, one of the Commissioners, and 3 others. New York Records, No. 1, Fol. 6. Aug. 22. Governour Stuyvesant, by a Note, owns the Receit of the said Demand, and will answer it to Morrow. New Y T ork Records. No. 1, Fol. 7. Aug. 23. The Dutch Governour Stuyvesant writes a long Answer, dated at Fort Amsterdam : Says, he won't at present Debate the Rights of the King, amongst other things, to Virginia, Mary- land, or others in New England ; but, that he has a Right to all the Lands in the North Parts of America, is what the Kings of France and Spain will disallow. As also, he the said Gover- nour does, by Virtue of a Commission given to him by the States General, to be Governour General over New Holland, &c. , dated 26 July 1646, as also by Vertue of a Grant and Com- mission from the States General to the West-India Company in the Year 1621, under their Great Seal, now produced to Col- onel Nicholls's Deputies. Moreover, it's acknowledged by all the World, that by Vertue of the said Commission and Patent of the States General, the Dutch have peaceably, and without controul, enjoyed Fort Orange, about 48 or 50 Years, the Manhatans about 41 or 42 years, the South River 40 Years, and the fresh Water River about 36 Years. As to de livering up of the Places, the King has so much Equity BOUNDARY QUESTION. 249 that, if he knew the Truth, which is, that the Dutch came not into these Provinces by any Violence, but by Commission from the States General, first of all in the Year 1614, 1615, and 1616, up the North River near Fort Orange, and in the Year 1622, there was a Commission and Grant to the Dutch West-India Company, and moreover, in 1656 a Grant to the Burgomasters of Amsterdam, of the South River, by which Grants they have been held, as also in right of their first Discovery, uninter- rupted Possession, and Purchase of the native Princes, and other Persons, the King, (on such Knowledge) would not grant any such Order, to demand their Places ; and protesting against this Demand, as an unjust Violence and Breach of the Articles of Peace. New York Records, No. 1, Fol. 7. Aug. 24. Colonel Nicholls's Warrant to Captain Hyde, the Com- mander of the English Squadron, to prosecute, by all ways and means, the speedy reducing the Dutch under his Majesty's Obedience. New York Records, No. 1, Fol. 10. Aug. 25. Governour Stuyvesant's Letter from the Manhatoes, in the Fort of Amsterdam, in New Holland, to Colonel Nicholls, that, following the Orders of the States General, he is obliged to defend the Place; but, to prevent spilling Blood, sends Depu- ties to treat for an Accommodation, and desires, in the mean Time, all Hostilities may cease. New York Records, No. 1, Fol. 10. Aug. 25. Colonel Nicholls writes that he insists on his first summons for a speedy Surrender of the Towns and Forts; and will not treat, save upon Articles for a Surrender. New York Records, No. 1, Fol. 11. Aug. 26. Governour Stuyvesant and his Council's Commission dated in Fort Amsterdam in New Netherland, in order to prevent the effusion of Blood, plunderings, murders, &c, appointing Dep- uties to treat. New Y'ork Records, No. 1, Fol. 11. 1664. Aug. 26. Colonel Nicholls, Commander in Chief of his Majesty's Forces now beleaguering the Town on the Manhatons, by his written Answer, dated at the Camp before the Manhatans, ac- cepts of the Proposal made by the Governour and Council there, to treat by Articles of Surrender, and appoints Deputies on his part, to treat and conclude upon Articles of Surrender of the aforenamed Place. New York Records, No. 1, Fol. 12. 250 PENNSYLVANIA AND MARYLAND Aug. 27. The Articles of the Surrender, whereby the Persons, Proper- ties, Liberties and Customs were to* be preserved; and the Sol- diers to march out, with their Arms, Drums beating, Colours flying, &c. , and Copies of the King's Grant to the Duke of York, and the Duke of York's Commission to Colonel Nicholls, to be delivered to Governor Stuyvesant on Monday next, signed by Colonel Nicholls, Deputy Governour to the Duke of York; and within two Hours after that, the Fort and Town called New Amsterdam, upon the Isle of Manhatoes shall be delivered into the Hands of Colonel Nicholls. New York Records, No. 1, Fol. 12. Aug. 29. Governour Stuyvesant's Ratification of the said Treaty. New York Records, No 1, Fol. 16. Thus the Duteh great Settlement was reduced ,at what is now New York. And after that was done, the English pro- ceeded next, to the small Settlement, viz. Sept. 3. Colonel Nicholls and Mr. Cartwright, and Mr. Mavericke's Commission, dated at the Fort in New York, upon the Isle of Manhatans, reciting, that the Dutch have seated themselves at Delaware Bay, and drawn a great Trade thither; which, if they be permitted to go on, the gaining of this Place will be of small Advantage to his Majesty; wherefore having deter- mined to bring that Place, and all Strangers thereabout, to his Majesty's Obedience; the Commissioners appoint two of his Majesty's Frigates, and all the Soldiers which are not in the Fort, to go thither, under the Command of Sir Robert Carr, to reduce the same. And all Officers at Sea and Land are to obey Sir Robert Carr during this Expedition. New York Re- cords, No. 1, Fol. 12. Instructions to Sir Robert Carr for reducing of Delaware Bay, and settling the People there under his Majesty's Obedience; When you come near the Fort, which is possessed by the Dutch, send your Boat ashore, to summon the Governor and Inhabi- tants ; and let them know they shall enjoy their Houses, Goods and Privileges, only, they must change their Masters, whether they be the West India Company, or the City of Amsterdam. To the Swedes, remonstrate their happy Return, under a Mon- archical Government. The Cannon and Ammunition, which be- longs to the Government, shall remain to his Majesty. The Acts of Parliament shall be the Rule of future Trading in Liberty of Conscience to the People. If you can't reduce the Place by Force, send a Messenger to the Governor of Maryland, with BOUNDARY QUESTION. 251 this Letter to him, and request his Assistance, and of all other English, who live near the Dutch Plantations. '.' To my Lord "Batimore's Son, You shall cJ lare, and to all the English 'concerned in Maryland, that his Majesty hath, at his great '"Expence, sent his Ships and Soldiers to reduce all Foreigners " in those Parts to his Majesty's Obedience : and, to that Purpose, '•only, You are employed; But, the Reduction of the Place '"being at his Majesty's Expence, you have Commands to keep '"Possession thei-eof, for his Majesty's own Behoof and Right, "and that you are ready to join, with the Governor of Maryland, '"upon his Majesty's Interest, in all Occasions; and that, if my " Lord Baltimore doth pretend right thereunto, by his Patent, " (which is a doubtful Case) you are to say that you only keep "Possession, till his Majesty is informed and satisfyed other- wise." This Piece is not dated, nor signed by any one, but is in New York Records, No. 1, Fol. 15. Oct, 1. Articles of Agreement between Sir Robert Carr, on the Behalf of his Majesty, and the Bui-gomasters, on the Behalf of them- selves, and all the Dutch, and Swedes, inhabiting in Delaware Bay and Delaware River. The Burghers and Planters to sub- mit to his Majesty's Authority, without making any Resistance, to be protected in their Estates, the Magistrates to be continued, any Dutchman or other may depart, the Magistrates and all the Inhabitants to take the Oaths of Alegiance to his Majesty, and of Fidelity to the present Government, the People to en- joy Liberty of Conscience, and whoever takes the Oaths to be, from that Time a free Denisen. -New York Records, No. 1, Fol. 16. Now the English having gained from the Dutch, both their great Settlement at New York, and their small Settlement at Delaware Bay and River, we shall have abundant Proof, of the small Settlement being governed, granted out, ruled and or- dered, by the Duke of York's Governors at New York, in num berless Instances, as a Part and Appurtenance of that great Settlement at New York. Oct. 24. The King's Commissioners sign a Warrant, dated at New York, on Manhatans Island, appointing Colonel Nicholls to repair to Delaware Bay, and there to take special Care for the good Government of the said Place, and to depute such Officers therein, as he shall think fit, for the Management of his Majesty's Affairs, Civil and Military. New York Records, No. 1, Fol. 17. 252 PENNSYLVANIA AND MARYLAND Oct. 26. Governor Nicholls signed four Papers, at Port James in New York, on Manhatans Island, this Day. By the first he gave a Licence to Elizabeth Cousturier, to transport herself and Goods to Delaware Bay, and there to trade or traffick with the same. By the second, he certified that Captain Hyde, of his Majesty's Ship the Guinea, had delivered a Flag for his Majesty's Service in the Fort of New York, and another Flag, and Sea Compass, to Sir Robert Carr at Delaware Bay. By the third, he certified that Captain Hyde having worn a Jack Flag, at his Main Top Mast head, in those Parts, was, by the Advice and Allowance of the King's Commissioners. And, by the fourth, he certified that the said Captain Hyde had spared two Barrels of Power, and 20 Iron Shot, which were spent at the reducing of the Fort at Delaware aforesaid under his Majesty's Obedience. New York Records, No. 1, Fol. 17, 18. The same Day. The said Commissioners signed an Order, dated at James Fort in New York, on Manhatans Island, to Captain Hyde, Commander of his Majesty's Ship the Guinea, to sail directly for Portsmouth, giving his Royal Highness Notice of his Ar- rival. New York Records, No. 1, Fol. 18. 3665. June 12. Governor Nicholls issues out an Order, dated at Fort James in New York, whereby, in Virtue of the King's Grant to the Duke of York, he revokes the Form and Ceremony of Govern- ment of that his Majesty's Town of New York, under the Name of Scout, Burgomasters, and Chepens; and for the future Ad- ministration of Justice by the Laws established in these the Territories of his Royal Highness by Persons to be appointed Mayor, Aldermen and Sheriffs, according to the Custom of Eng- land in other his Majesty's Corporations. New York Records, No. 1, Fol. 19. July 5. Governor Nicholls, at Fort James in New York, grants a Licence of Alienation to Jacob Vis, to sell his real Estate, con- sisting of a House and Garden, at, or near Newcastle in Dela- ware Bay, to any Person living within this Government. New York Records, No. 1, Fol. 20. Nov. 11. Governor Nicholls, by his Licence, dated at Fort James in New York, grants Leave to Peter Alricks to trade, or traffick with the Indians, in and about Hoarekills, in Delaware Bay, for Skins, Peltry, or other Commodities ; the said Alricks making BOUNDARY QUESTION. 253 due Entry with the Officers at Delaware, of the Quantity or Quality of such Commodities as he shall trade for. New York Records, No. 1, Fol. 20. The same Day. Governor Nicholls, by his Pass, dated at Fort James in New York, permits the said Alrick, with his Servant and six Horses, to pass from New York to Delaware, and, from thence, into Maryland, and so to return about his Occasions. New York Records, No. 1, Fol. 20. 1666. Mar. 20. Governor Nicholls, by an Order, under his Hand and Seal, dated in Fort James at New York, and directed to the Collector and Receiver General of the Customs at New York, (and it is there said, that another was sent to Delaware) takes notice of the Necessity of granting some temporary Privileges for En- couragement of Trade between the Port of New York and Dela ware River; and that, the Tenths of all Sorts of Goods, Liquors, Peltry, &c, by former Practice and Order, had been collected and paid, in or at the aforesaid Port and River; now, he orders, that (until contrary Order shall be published) no Sort of Goods, Liqnoi-s, or Peltry, shall be liable to pay any Custom, either in this Port, or in Delaware River, provided that due Entry and Certificate be made and given of all such Goods, Liquors, or Peltry, which shall be transported to or from this Port, and Delaware River. New York Records, No 1, Fol. 21. 1667. July 21. A Copy which was reprinted by the King's Printer, and by his Majesty's special Command, so long ago as 1685, of the Articles of Peace and Alliance between King Charles the Second, and the States General, at Breda. By the third Article whereof, (Fol. 56.) It was agreed, "That both the Parties, and "either of them, shall keep and possess hereafter, with plenary "Right of Sovereignty, Propriety, and Possession, all such "Lands, Islands, Cities, Forts, Places and Colonies, (how many "soever) as, during this War, or in any former Times before "this War, they have, by Force of Arms, or any other way "whatsoever, gotten and detained from the other Party; and "that, altogether after the same manner as they had gotten, and "did possess them the 10-20 Day of May last past; none of the " same Places being exempted. " Printed Book of Treaties, Fol. 55, 56. Certificate from the King's Prothonotary in Chancery, that he cannot find any Inrollment of that Treaty, or any Original, or other Transcript, or Memorial, of it. Paper Certificate. Note, It is indeed lost, and was never inolled, great En- 254 PENNSYLVANIA AND MARYLAND deavours having been used to And it, at every publick Office, but in vain, as is proved by Paris. In 1664, the Crown had conquered from the Dutch both their Settlements, and had, since, possessed the same ; but now the Dutch, as we see, added a Cession of the sam<\ After which, we shall find the Instances, of what we are proving, much stronger, and more frequent, than before. Jan. 8. From the Records in New York. Governor Nicholls's Grant of Confirmation unto Johan Hendricks, Niels Nielson Sen. Hendrick Nielson, Mattys Nielson, and Niels Nielson Jun. their Heirs and Assigns for ever, for a Plantation, to each of them, at Newcastle, viz. scituate on the Verdrietige Hook, or Corner of Land, so extending to the Stone Hook, which had been before granted to them the fifth of March, 1663, and the 15th of June, 1^64. Five Bushels of Wheat Acknowledgment. New York Records, No 3, Fol. 3. The same Day. From the Records in New York. Governor Nicholls's Grant of Confirmation unto Captain John Carr, of a Piece of Land with a Plantation thereon, containing 50 Acres, and another contiguous Piece of Land and Bowery thereon, containing 100 Acres both scituated at Newcastle upon Delaware, upon the first Hook or Corner of Land, above the Fort, on the North East Side thereof, and mentioned to be bounded by three othe r Persons Lands, which Lands, &c. , had been purchased from the Owners by Anthony Bryant, and by him since sold for a valuable Consideration to the said Captain John Carr; and, for a Con- firmation to him of his Possession and Enjoyment, this Patent is granted. Two Bushels of Wheat Acknowledgment. New York Records, No 3, Fol. 3. 1668. Mar. 25. Now Francis Lovelace Esq ; appears to be Governor ; but his Commission does not appear. From the Records in New York. Francis Lovelace's Grant of Confirmation to Hans Block, for a piece of Land at Delaware, upon the second Hook, or Neck, above the Town of Newcastle, and some Meadow Land, containing together, 120 Acres, bounded by four Neighbours Lands. The Quit Rent two Bushels. New York Records, No. 3, Fol. 4. April 21. From the Records in New York. Regulations and Directions for the Settlement of the Government in Delaware, dated at Fort James in New York. It is necessary to hold up the BOUNDARY QUESTION. 255 name and Countenance of a Garrison in Delaware, with 20 Men, and a Commission Officer. That the Soldiers be lodged in the Fort, and keep the Stockadoes up in Defence. That the Civil Government be continued, till further Order. It any Com- plaints shall be made of the Civil Magistrates, the Commission Officer, Captain Carr, is to call to him five Persons, therein named, as a Councill,to determine the same. They also are to advise him, in all Difficulties with the Indians, and for the arming the several Plantations and Planters, who must obey their Orders. Two Thirds of the Soldiers to remain, constantly, in and about Newcastle. Fines for light Offences to be moderate. The Commission Officer, Captain Carr, in the Determination of the chief Civil Affairs, whereunto the fore mentioned Coun- sellors are ordained, to have Casting Voice. The new appointed Counsellors; to take the Oath to his Royal Highness. The Laws of the Government, established by his Royal Highness, to be frequently cummunicated to the Counsellors and others. >No offensive War to be made, against any Indians, before you receive Directions from the Governor for so doing. In all Mat- ters of Difficulty and Importance, You must have Recourse, by way of Appeal, to the Governor and Council at New York. New York Records, No 17. Fol. 22. June 8. From the Records at New York. A Letter, writ from Gov- ernor Nicholls and Colonel Lovelace jointly, and dated at Fort James, directed to Captain Carr. Since our last, relating to the Indians, who murdered the Servants of Mr. Tom and Peter Alricks, one Rambo informs us that the Indians, in those Parts, desire there should be an absolute Prohibition, upon the whole River, of selling strong Liquors to the Indians: Therefore, you are to convene those Persons, who are joined with you in Com- mission, for the Management of the Civil Affairs ; and, with their Advice, give all necessary Orders for the good Government of Christians and Indians, and, what you conclude, must be remitted hither, and shall be confirmed, as if we had been pres- ent. New York Records, No. 1, Fol. 23. July 7. From the Records at New York, dated at Fort James in New York, on Manhatans Island, A Certificate, that, at the taking of the Fort and Town at Delaware, from the Dutch and reduc- ing of those Parts under his Majesty's Obedience, all the Goods and Servants, taken or seized upon in the said Fort or Town, belonging to the City of Amsterdam, or their Officers, were confiscated, and made free Plunder, and so disposed of accord- ingly ; and there being several Negroes taken away from Peter 256 PENNSYLVANIA AND MARYLAND Alrieks, who fell into the Hands of Ensign Arthur Stock, he, afterwards, freely restored and bestowed 11 Negroes upon the said Alrieks, as a Grift, which was allowed, and approved of by me the Certifier. New York Records, No. 1, Fol. 23. Aug 27. From the Records at New York. A Certificate, dated at Fort James in New York, that Mr. William Tom came over, with the Certifyer, in his Majesty's Service and had ever since been in Office, and for two Years last past Commissary at Delaware, and having behaved well, and desired his Discharge, it is hereby granted to him. New York Records, No 1, Fol. 24. Nov. 17. From the Records at New York. An Order, under Hand and Seal, dated at Fort James in New York, directed to Captain John Carr, at Newcastle upon Delaware. Reciting, that Sir Robert Carr had received a Mare, at Delaware, which he pro- mised to pay Samuel Edsal for here ; but not having paid the same, as was also represented to the late Governor, Colonel Nicholls; therefore, authorising Captain Carr, with the Mag- istrates in Commission at Delaware, to make Enquiry of the Value of the said Mai'e, and to cause the same to be paid to Edsal, out of the Estate in those Parts belonging to the said Robert Carr. And for so doing this shall be a sufficient War- rant. New York Records, No 1, Fol. 24. Dec. 15. From the Records at New York. An Order, dated in Fort James there, reciting, that an Agreement had been made, with Peter Alrieks, about Mattinicom, alias Carr's Island, in Dela- ware River, and all the Stock, Goods, and other Materials thereon, heretofore, in your Care and Custody ; Therefore, re- quiring immediately to make a Surrender of the said Island, and Stock, and Goods, to Alrieks, or his Assigns, and return me a true Inventory, and Account of all the Stock and Goods, which was delivered you there by Sir Robert Carr. New York Records, No 1, Fol. 24. Mar. 23. From the Records at New York, a Confirmatory Licence of Alienation, there dated, (by Governor Lovelace) to confirm a Licence, granted by the late Governor, Colonel Richard Nich- olls, his Predecessor, unto William Beckman, to sell a House, and Lot of Ground at Delaware. New York Records, No. 3, Fol. 5. Mar. 24. From the Records at New York, a Confirmatory Grant, made BOUNDARY QUESTION. 257 by Governor Lovelace, unto Jurien Jans, for a piece of Land at Delaware, upon Hook, or Neck, above the Town of New- castle, bounded by one Neighbour, and containing 46 Acres. The Quit Rent, one Bushel of Winter Wheat. New York Records, No. 3, Fol. 5. 1669. Mar. 25. From the Records at New York. Governor Lovelace's Con- firmatory Grant, to Jacob Vander Weer, of a small Island, at Delaware, lying beyond Christeen Kill, bounded upon the Main by two other Neighbours. Quit Rent, two Bushels of Wheat. New-York Records, No 3. Fol. 5. Same Day. Governor Lovelace's like Confirmatory Grant, to Gerrit San- derson of two Pieces of Land at Delaware, bounded by four Neighbours, named. New-York Recoi'ds, No 3. Fol. 5. Mar. 26. Three more Confirmatory Grants, from Governor Lovelace. 1. To John Sibrantse, of a Piece of Land, at Delaware, near the Horse Neck, called the Paerd Hook, bounded on one Neigh- bour. Quit Rent, one Bushel. 2. To Evert Gertson, of a Piece of Land, at Delaware, viz. in Newcastle, between Otter Street, and Calves Street, bounded on each Side by one Neighbour. Quit Rent, one Bushel. 3. To Paul Jaques, of 200 Acres of un- manured Land, along Christeen Kill, bounded by two Neigh- bours. Quit Rent, two Bushels. New- York Records, No 3. Fol. 6. April 8. Two more Confirmatory Grants, from Governor Lovelace. 1. To Harman Reyners, of a Lot of Ground, at Newcastle in Delaware, with a House and Garden thereon, bounded by one Neighbour. Quit Rent, one Bushel. 2. To Neils Lawes, of a Piece of Land, at Delaware, near Upland, containing 150 Acres, bounded by one Neighbour. Quit Rent, one Bushel and a-half. New-York Records, No 3. Fol. 7. May 28. Governor Lovelace's Confirmatory Grant, to Olla Towson, of a Parcel of Land at Delaware, bounded by two Neighbours. Quit Rent, one Bushel. New-York Records, No 3. Fol. 7. Same Day. Two more Confirmatory Grants, from Governor Lovelace. 1. To Bernard Eken.of a House and Garden, in the Town of New- castle, bounded West with the Church Yard, and North with the Mart. Quit Rent, one Bushel. 2. To Bernard Eken, of a 17— Vol. XV. 258 PENNSYLVANIA AND MARYLAND Plantation, at Delaware, near Horse Neck, or Paerd Hook, and called Laymakers Hook, Quit Rent, one Bushel. New-York Records, No. 1. Fol. 25. July 1. Another Confirmatory Grant, from Governor Lovelace, to Simon Jansen and Mattys Berkelse, for a Parcel of Land, at Delaware, upon the Crane Hook, bounded by one Neighbour. New- York Records, No 1. Fol. 25. July 1. A General Order, dated at Fort James in New- York, Reciting, that there was an Order, made at the General Court of Assizes in 1666, that all Persons, who had old Patents, should bring them to be renewed, and those who had none should be sup- plied therewith by a certain Time; which Order extended itself to Albany, Esopus, and all other Places of the Government, as well as this City; and, more particularly, to all those, who had been under the Dutch, and are now reduced to his Majesty's Obedience ; these Presents declare, that the Inhabitants in and about Delaware, being under this Government, are likewise concerned, as well as the rest, so that all Persons there, who hold their Lands by Patents, or Ground Briefs, of the Dutch Tenures, are to have their Patents renewed, and those who have none, are, with all Speed, to be supplyed therewith, other- wise they are liable to incur the Penalty of the Law. New York Records, No 1. Fol. 25. July 29. Two Confirmatory Grants, from Governor Lovelace 1. To William Tom, of a Piece of Land, below the Town (of Newcastle) heretofore belonging to Peter Alrick, and another Piece of land and Meadow. Quit Rent, two Bushels. 2. To William Tom, of a House and Lot, at Newcastle. Quit Rent, one Bushel. New-York Records, No 1. Fol. 26. Aug. 2. An Order, dated at New York, permitting William Tom to take up, kill, or mai'k wild Hogs, in the Woods, at Dela/ware, near his Lands. New- York Records, No 1. Fol. 26. Same Day. Another Order, dated at Fort James in New York, directed to the Officers at Delaware, reciting, that there is a Swede, at Delaware, pretending to be Son to Conismark, one of the King of Sweden's Generals, who raises Sedition, and disturbs the Peace and Laws of the Government ; and Henry Coleman, one of the Fins, (Finlanders) leaves his Habitation, Cattle, nnd Corn, and runs after the other Person; and they converse with BOUNDARY QUESTION. 259 the Indians; and Mischief being apprehended from them you have, already, according to your Duty, set forth your Warrant to apprehend him, but he can't be met withal. I therefore impower you to set forth a Proclamation, in my Name, that if Coleman does not surrender himself in 15 Days, you cause all his Estate, within this Government, to be seised upon, and secured to his Majesty's Use; of which you are to render me an Account, by the first Opportunity. New- York Records, No. 1. Fol. 27. Same Day. The Governor's Order, dated at New York, upon William Tom's Request, that the Finnes, or others, ressiding at, or about Delaware, may have an Enlargement of their Bounds; they desiring to take up some Lands at Apoquimini, within the Government, as an Encouragement to them, the Governor grants their Request, on Condition a Draught of the Land be taken, and returned to him, whereupon, those who settle there shall have Patents. New York Records, No. 1, Fol. 27. Same Day. The Governor's other Order, dated at New York, upon Wil- liam Tom's Request, that some Familys from Maryland may have liberty to come and settle, upon the Kill, below Apoqui- mini, within the Government ; to the end the said Place may be inhabited and manured, it tending likewise to increase the Inhabitants within these Territories, I grant the said Request, on condition a Draxight be taken of the Land in the said Kill, and a Return thereof made to me, whereupon those who settle there shall have Patents for their further Assurance. New York Records, No 1. Fol. 27. Same Day. The Governor's Order, dated at New York, impowering Wil- liam Tom to collect the Quit Rent, upon all Persons relating to Delaware, or Delaware River, who have taken out Patents and hold their Lands under his Majesty's Obedience, and also, to collect from those who have no Patents, and hold Lands, there at least proportionable with the rest. For the taking out of whose Patents thex-e is Notice of another Order. New York Records, No 1. Fol. 28. Aug. 3 and 6. Two several Orders, from the Governor, directed to Captain Carr, and the rest of the Court at Newcastle, one Outhouse's Goods having been attacht, at the Suit of Teller, in the City of New York, but permitted to be transported to Delaware, on con- dition to be deposited, till the Debt was paid ; but the Court 260 PENNSYLVANIA AND MARYLAND having, contrary to the Governor's Orders, released the Goods, and given longer time for Payment, the Goveimour requires the Court to secure all Charges and Interest out of the Debter's Estate, which, if they cannot do, the Court themselves are to make good. New York Records, No 1. Fol. 29. Sept. 1. A Grant from Governor Lovelace, unto Charles Floyd and John Henry, two Soldiers who went over in his Majesty's Ser- vice, of 20 Acres of Land, behind tli3Townof Newcastle, which had belonged to one Webber under the Dutch Government, and had been seized upon and confiscated by Order of the late Governor. Quit-Rent, 1 Bushel. New York Records, No. 1. Fol. 30. Sept. 14. From the Records of New- York. Minutes of the Governor and Council, on Receipt of Letters from Captain Carr, that an In- surrection was very much feared there, the chief Actor being in hold, and the Depositions of several Persons taken ; Oi'dered a Letter of Thanks to the Officers there, for their great Care, and that the long Finne, in hold and in Irons, be still kept in safe Custody, till the Governor, or some other commissioned from him, shall go over to examine into and try the Matter of Fact, which is of so heinous and high a Nature; and that all Persons who have had a hand in the Plot, be bound over and enjoyned to give Security to answer their Misdemeanour, and an Account to be taken of their Estates, in the mean time. New-York Records, No 1. Fol. 30. Sept. 15. Being the next Day, the Governor writes a Letter, from Fort James in New- York, to Captain Carr and the Scout and Com- missaries at Delaware, thanks 'em for their good Service herein to his Royal Highness, in securing those Men, and promises to represent that Matter to the Duke. Orders him to keep the long Swede in Irons, till he can have his Trial, which shall be as speedy, as the Governor's Affairs can permit, either by the Governour's own Presence, or by some of the Council suffi- ciently authorised to hear and determine that Affair. I think it would not be amiss if, to the simpler Sort of those concerned, you injoin them to labour sometimes in the Reparation of the works about the Fort. New-York Records, No 1. Fol. 31. Oct. 18. Minutes of the Governor and Council of New-York, on con- sideration of the long Finne's Insurrection at Delaware, it is ajudged, that he deserves to die for the same ; yet in regard BOUNDARY QUESTION. 261 many others were concerned with him, and, amongst them, some simple People, who might be involved in the same, if the Rigor should be extended, it's thought fit and orderd, that the said long Finne shall be publickly and severly whipt, and branded in the Face with R, for attempting Rebellion : After which, that he be secured, till he can be sent and sold to the Barba- dos ; That the Chief of his Accomplices do forfeit to the King half their Goods and Chattels, and a smaller Fine be set on the rest; which shall be left to the Discretion of the Commissioners who shall be appointed to make Enquiry into the same. As to the Indian, who committed a Rape on a Woman there, that he be put to Death, according to the Sentence past on him there. New-York Records, No 1. Fol. 32. Next Day. Governor Lovelace's Letter to Captain Carr. Approves of the Sentence of Death which the said Captain Carr and the Com- missioners had condemned the Indian to ; and, he beins: escaped, orders them to send to the Sachem, that he may be delivered up, and Justice executed on him. As to the long Finne, keep him a little longer, till I send some Commissioners from hence to examine into the whole Matter; but I would not have the ordinary People be too much frighted, I have thought fit to ex- cuse them, by a pecuniary Mulct, as they shall appear more or less guilty. New- York Records, No 1. Fol. 32. Nov. 22. The Form of a Commisions, from the Governor of New-York, to several Persons (for whose Names there is a Blank) whereof Matthias Niccols to be President, to put in Execution the Regulations, and Act of Council made relating to the long Finne; Also to call any other Persons that were in hold, before them, and pronounce sentence against them, according to the Directions therewith given to the Commissioners; and to ex- amine all others, suspected to be guilty, and impose Fines ac- cording to their Demerits. New- York Records, No. 1. Fol. 33. Jan. 25. Minutes of the Governor and Council. The Sentence against the long Finne being taken into Consideration, order'd, that two Warrants be prepared, the one to Mr. Cousseau to receive the other to Captain Manning the Sheriff, to deliver the said Finne, according to the Sentence. Also the Matter about Wil- liam Douglas taken into Consideration. The Letter from the Whorekill read, ordered that, according to their desire, and an Order of the special Court held at Newcastle, there be an Officer appointed amongst them, to keep the Peace, &c. and a Com- mission sent to that purpose ; And, as Douglas has behaved 262 PENNSYLVANIA AND MARYLAND so ill, at the Whorekill, he shall be continued in Prison till further Order, but his Irons to be taken off ; but if he can give Security not to return to the Whorekill, &c. he may be dis- charged. New-York Records No 1. Fol. 33. Jan. 26 and 28. An Entry that the long Finne was, that Day, put on Board Mr. Cosseau's Ship, to be transported and sold at Barbados, according to the Sentence of the Court at Delaware: And a Warrant (to the Captain of the Ship) dated at Fort-James in New-York, to carry him to Barbados, and sell him there, as Servants were sold, and to return the Produce to that Port of New York. New-York Records, No 1. Fol. 34. Feb. 25 and 26. An Entry that William Douglas was, that Day, released from Prison in the State-house, where he had been committed for a Misdemeanor at the Hoarkill, and was sent into the North, having given Bond not to return into this Government ; And the Governor's Letter (to the Magistrates) approving of their having sent him Prisoner to Delaware, from whence he had been remitted to New-York, approving what they had done, and acquainting how he was now sent away. And, to prevent future Disturbances, the Governor sends a Commission, im- powering some of them to suppress them. New- York Records, No 1. Fol. 34. Feb. 28. A short Entry (which is sworn to be a true Copy of the Re- cord) that, this Day, there was a Commission, under the G6v- ernour's Hand and Seal, sent to the Hoarekil!, for certain Persons, there named, to be Scout and Commissaries, to keep good Orders there for his Royal Highness, to try all Matters of Difference under 101. amongst themselves; for what shall be above, they are to apply themselves to New- York : and so, for all Criminals. New- York Records No. 1. Fol. 35. Mar. 15. An Order of the Governor, renews the former Custom and Duty of 10 per Cent, on all European Goods imported at the Hoarekill, and 10 per Cent, on all Furrs and Peltry exported from thence : and appoints Martin Crieger to be Receiver and Collector of the Customs at the Hoarekill, to receive those Duties, according to former Custom and Usage; and all Persons are to obey this Commission under Penalty of Confiscation of their Goods. And the said Crieger is to render the Governor a due and exact Account of the said Duties. New-York Records No 1. Fol. 35. BOUNDARY QUESTION. 263 1670, April 13. The Governor's Letter from New- York, to Captain Carr, that he has given Jacobus Fabritius and his Wife, his Pass to go to Newcastle, or any Place in Delaware River, . And recom- mends to him a Suit that Fabritius's Wife has there, the Gov- ernour thinking it just that an old Execution, in that Suit, should be of Force, or renewed. New-York Records, No 1. Fol. 35. May 16. The Governor's Order made at New- York, on the Petition of Niels Nielson, and the others, concerned in the Patent granted by Colonel Nicolls, for each of them to have a Plantation, on Verdrietiges, or Trinity-Hook, at Delaware; they complain that William Tom, having, by Misreprentation, obtained a Patent for the said Land, has, by Order of the Court at Dela- ware, forbid them to cut Hay, or feed the Marsh ; which, with- out Relief, will be much to their Prejudice. Now, the Governour orders, that the said Petitioners shall enjoy what is granted in their Patent, any Patent, Grant, or Order of Court, in favour of William Tom, to the contrary notwithstanding. New- York Records, No 1. Fol. 36. Aug 24. The Governor's Letter, dated from Fort James, directed to Captain Carr, on account of a new Murder committed by the Indians, blaming the Magistrates at Newcastle for their too much Remissness, in not avenging the last Murder; ordering a narrow Enquiry into this late Action ; to strengthen themselves in their Garison; recruit their Men; muster the Burghers; dis- pose them to their Watches ; summon the Commissioners ; with them consult the Dest way to discover the Assassins; demand them, or force the Indians to deliver them up, that they may be brought to Punishment; and on all occasions, to give the Governour Advisements of their Proceedings, that He may apply a timely Assistence, if need require. New York Records, No 1. Fol. 36. Oct 22. Minutes of the Governor and Coucil, that the Customs at the Whorekill should be abolished. New-York Records, No 1. Fol. 37. Same Day. The Governor's Abolition, under the Seal of New-York, done with the Advice of his Council, of the Customs lately laid at the Whorekills, and this, on the Request of the Inhabitants there, provided they don't sell too great Quantities of Liquors 264 PENNSYLVANIA AND MARYLAND to the Indians, nor prejudice their Neighbours of Newcastle, upon which Place they are to have their Dependance. New York Records, No 1. Fol. 37. Some Day. A Licence granted to Peter Gronendike, to trade with the Indians at the Whorekill. New-York Records, No 1. Fol. 37. Nov. 7. The Governor's Licence to Peter Alricks, to take up a Pair of Mill -stones at the Whorekill, belonging to no Person there. New- York Rcords, No 1. Fol. 37. Nov. 16. The Governor's Letter from New-York to Captain Carr, now it's Winter, and safe against the Indians Attempts, to disband some of his Men, contract his Expence,and take them on again in the Spring, and to let the Governour know if shall want any Force from New York. New-York Records, No 1. Fol. 38. 1670. Jan. 9. The said Governor Colonel Lovelace's Commission, dated at New- York, appointing James Mills Surveyor of Land at the Whorekill and Parts adjacent, he behaving according to the Custom and Practice of Surveyors in these his Royal Highness's Territorys. New York Records, No 1. Fol. 38. Jan. 12. The Governor's Licence, dated at New-Y'ork, to William Mills, to purchase a Piece of Land for a Plantation, to the South- ward of the Town at the Whorekill, but the Extent and Quality thereof is to be cert if yed tome, whereupon he shall have further Assurance by Patent. New-York Records, No 1. Fol. 38. Feb., 24. Minutes of the Governor and Council at Fort James, on the Result of the Affair Avith the Indians, which Affair is respited till Capt. Carr's Arrival; and a Letter, to that effect, writ by Governor Lovelace to the Inhabitants of Delaware. New- York Records, No 1. Fol. 39. Mar. 17. In: t uctions given, by Governor Lovelace, to Capt. Crieger. who was bound to the Whorekills, viz. To bring the Governor an Account of the Encrease or Decrease of the Inhabitants there, whether any new Families are resolved to settle here under the Protection of his Royal Highness, and to give the Governor an Account what the Civil Officers are, whether the scout is to be altered this year, the Person to succeed him is to be rec- couimended to the Governor, who will authorize him for two BOUNDARY QUESTION. .265 Years, to enquire about the Indians who murdered John de Caper's People, and let the Governor know under whose Jurisdiction they live, to bring the Milstones with him, to re- move the Customs, and restore them to their ancient Liberty. New-York Records No 1*. Fol. 39. 1*571. Apr. 15. Minutes of the Governour and Council of New- York. Dela- ware Business taken into Consideration (Capt. Carr being pi'esent) about the Murder committed by the Indians, about selling strong Drink to the Indians. About the Murderers, they are known, but, for the present, not thought convenient to prosceute to the utmost. Capt. Carr relates of the Desire of many Familys to come and settle below Newcastle, at Apo- quimini and Bombey's Hook, to be considered of; a Letter is ordered to be written to treat with some of them about their Settlement. New- York Records, No 1. Fol. 39. Ayr. 25. A special Writ, dated at Fort James in New York, in an Action of Debt, brought by Peter Jego against Cornelius Joris now residing at Newcastle in Delaware, commanding the said Joris to appear at the General Court of Assize to be held in the City of New- York the 6th of October next to answer the Com- plaint of the said Plaintiff in an Action of Debt. This Writ is directed to any of the Officers at Delaware, or in Delaware River, who are to see this special Warrant served, and to make Return thereof to the Court above mentioned, and also to cause any Attachment, laid upon the Goods of the Plaintiff by the Defendant, to be rebact, until the Trial at the Assizes. New York Records, No 1. Fol. 40. May 1. From the Records in Newcastle County, Governor Lovelace's Grant, at full Length, which he makes, as Governor General tinder the Duke of York, unto Herman Rayners in Fee, of a Lott of Land at Newcastle in Delaware River, bounded by the Mart, and by Beaver Street, and by two Tenants. Newcastle Records, No 11. Fol. 4. May 18. From the New-York Records, Minutes of the Governor and Council. Capt. Crieger's Business about the Whorekill. The Purchase of the Whorekill, by the Dutch, to be recorded. An Exniination made at the Whorekill by Capt Crieger, and the Answer upon it, together with three Papers brought by Capt. Carr concerning it. The other Matters irom the Whorekill well approved of. New- York Records, No 1. Fol. 40. 26G PENNSYLVANIA AND MARYLAND June 14 Minutes of the Governor and Council at New-York. The Business under Consideration are the Matters at Newcastle and the Whorekill. About Newcastle it was ordered that no Per- son in Delaware be permitted to distill there, but such as give in their Names to the Officers at Newcastle, and from them to receive Licences, and that they pay one Guilder per Cann for all they shall distill, which shall go towards the Reparation of the New Block-house and Fort. About the Whorekill it is ordered, that what is. past, and granted there, shall be con- firmed, upon the same Conditions as the rest of the Land ; with this Proviso, that each Planter be obliged to settle upon the Land, and that each Person be injoyned to settle a House in a Town to be appointed near them. New- York Records, No 1. Fol. 40. {June 14.) The next Paper is some written Proposals, tendered to the Consideration of the Governor and Council, touching the Town of Newcastle and Plantations in Delaware River, now under his Royal Highness's Protection and Government. (Note, this is the Paper which the Governour and Council had, that Day, under their Consideration (The Town of Newcastle, being the Strength of the River, it's left to Consideration whether they should not have more than ordinary Encouragment. 1. That a Block house may be erected, and a constant watch may be kept now the Fort is fallen to ruin. 2. That no vessel from this, or any other Place to trade, be permitted to go up the River above the town, for it will ruin the Place, all Trade deserting them. 4. That the distilling of strong Liquors, which consumes Grain and debauches the Inhabitants, be prohibited. 5. That the Number of Victuallers be restrained, to such as the Officers shall approve of, and may be licensed. 6. That Constables may be appointed who shall have Staves with the King's Arms, as is practised in the rest of his Royal Highness's Dominions. 7. To have the King' .* Arms in their Courts of Justice. 8. That what Lands the Officers there have granted, (which they had Encouragement to do by the Governor's Predecessor, and never had Order to the contrary) may be confirmed. 9. That several Orders, past about the Time of the Trial of long Finn as well about public Charges, as the Whorekill having Officiers subordinate to those of Newcastle, as for clearing Highways, maintaining Fences, and other Matters, relating to the Well- Government of that Place, be reinforced, by the Governor's Approbation. 10. That whereas their Neighbours of Maryland have made offer to clear one Half of the Way. between Augustine BOUNDARY QUESTION. 367 Harman's Plantation and the Town of Newcastle, an Order may be issued that those of Delaware should clear the other Half next to them. 11. That a Person be appointed and sworn at Newcastle, Corn-meeter, to see that it be sent abroad clean, and to view their Beef and Pork, that it be well packt and mer- chantable. 12. That a Mill, up Delaware River, at the Car- coons Hook, heretofore belonging to the Publick, but now en- deavour'd to be engross'd by private Persons, may be taken into his Highness's Hands, for the publick Good to the In- habitants. This is New York Rceords, No 1. Fol. 41. June 14. Minutes of the Governor and Council of New-York, in Answer to the Proposals, delivered in by Capt.John Carr, the Governor and Council do give their Resolutions upon each one of them, in general, agreeing to what was proposed for the most part ; and some former Grants of Lands made by the Officers at New- castle, were confirmed ; but, for the future, it's expected, before any Grant be absolutely made there by the Officers, that the Desires of Persons to have Lands, and the Quantity thereof, be first transmitted to the Governor at New-York, who, as ho shall see Cause, will order the Surveyor to make a Survey, which being certified, they may have Patents of Confirmation for the same ; and the Officers are to acquaint Persons, who apply to them for Lands, with this Order. Lastly, As to the Tenure of the Land at Delaware, it's to be held in free and com- mon Soccage, as his Royal Highness by his Majesty's Patent holds all his Territorys in America, that is to say, according to the Custom of the Manor of East-Greenwich, only, with this Proviso, that they likewise pay the Quit-Rents, reserved in their Several Patents, as an Acknowledgment to his Royal Highness. New-York Records, No 1. Fol. 42. June 17. Governor Lovelace's Commission, dated at New- York, ap- pointing Walter Wharton to be Surveyor-General of Lands on the Western Side of Delaware River, now under his Royal Highness's Government and Protection. He observing such Orders as he shall receive from the Governour. New- York Records, No 1. Fol. 43. June 21. Minutes of the Governor and Council of New-York. The first Matter and Consideration is the Business of Delaware about granting Patents there. Capt. Carr declares, that Governor Nicolls gave the Officers Order to make Grants of Land to those that would plant there, which being remitted to the Governor, he was pleased to give Patents for them. The signing of Patents 268 PENNSYLVANIA AND MARYLAND for those Parts concluded on. An Order, also, relating the Grant to Mr. Mills, the which is to extend only to the Whore- kill Lands, tho' mentioned Parts adjacent, on the South side of the Whbrekills. .New York Records, No. 1, Fol. 43. Sept.25. Minutes of the Governor and Council of New York, upon a Letter sent from Mr. Toms, and upon the Examination of Peter Alricks. about a new murder of two Dutchmen, killed by some Indians at Mattiniconk in Delaware River. New York Records, No. 1, Fol. 44. Note. For the better understanding of what follows, it is neces- sary to inform you, (tho' it is not in Proof on our side) that, before this Time, the Duke of York had conveyed away New Jersey (a Tract lying between New York and what is now Pensilvania) unto the Lords Proprietors of New Jersey. Sept. 25. Resolves, at a Council held at New York by the Governor of these his Royal Highnass's Territories, and the Governor of New Jersey, upon Consideration about the said Murther, not to prosecute this Affair about the Indians without mutual Con- sent; and that the Governor of New Jersey call an Assembly in his Province, to know how far that Province will assist in case of a War. New York Records, No. 1 Fol. 45. Sept. 26. Governor Lovelace's Letter, directed to Mr. Tom at Delaware ; Blames him that his, the Governor's, Directions had not been vigorously followed on the last sad Accident, which might have prevented this. Think, immediately, how a War may be prosecuted on these Villanies. In the mean Time I think it requisite that all the Frontier scattering Plantations, be order'd immediately to thrash out, or remove, all their Corn, as like- wise their Cattle, that they may receive less Damage by the Effects of the War which will ensue. Next, that none, on pain of Death, presume to sell any powder, Shot, or strong Waters to the Indians. In the mean time carry it fair to the Indians that they may have the less Mistrust of our Designs. Tells him also that the Governor of New Jersey is acquainted with the Affair, and is very zealous therein, and we may depend on Supply and Assistance from him. If a good Work were thrown about Mattiniconk House, and that strengthened with a Con- siderable Guard, it would be an admirable Frontier. New York Records, No 1. Fol. 46. BOUNDARY QUESTION. 269 Sept. 28. Governor Lovelace's Letter from New York to Captain Carr; You being ill, I directed my Letter to Mr. Tom, but sends Cap tain Carr a Duplicate of it, that he may truide himself by those Rules which the Governor then prescribed. As the Gov- ernour and Council, at this Distance, cannot give punctual Directions, we must therefore reserve that to your prudent Managerv, wherein I would have you, always, take deliberate Advice, from the Commissaries, before you put any thing in practice, and be sure, on all Occasions to advertise me of your Motions. New York Records, No 1. Fol. 47. Sept. 29. Governour Lovelace's Pass dated in New York, to permit the Sloop Royal Oak, Thomas Lewis Master, to pass out of the Port of New York to Newcastle in Delaware Bay, and, at this particular Juncture of time, from thence, to go up the River to trade and trafflck as the Masters occasion shall require. New York Records, No 1. Fol. 47. Nov. 7. Minutes of a Joint Meeting of Governors and Councils (in East New Jersey) by the Governor of his Royal Highness's Territories, and the Governor under the Lords Proprietors of East New Jersey, deferring the Warr, at that Time, and con- taining several other Directions. New York Records, No 1. Fol. 48. Nov. 9. Governor Lovelace's Commission, dated at New York, and under the Seal of that Province, issued by the Advice of his Council, appointing the present Officers and Magistrates in Newcastle and Delaware River, or any 4 of them, to be a special Court of Oyer and Terminer, to try and pass Sentence and exe- cute it on the Murtherers, if taken. New York Records, No 1. Fol. 49. Same Bay. Governor Lovelace's Order, reciting the pass which he had granted to Thomas Lewis (the 29th of September) to trade, at this particular Time, notwithstanding any General Order here- tofore made to the contrar-y; but the said Lewis being now in the said River with his Sloop, where he is stopt by Order from the Officers there; I order the said Stop to be taken off. New York Records, No 1. Fol. 49. Nov. 10. A severe Letter from Governor Lovelace's at New York, to Capt. Carr at Delaware, Complains of the Backwardness of the 270 PENNSYLVANIA AND MARYLAND Inhabitants of Delaware, to bring the Murtherers to condign Punishment. Then as to Captain Carr, says the Governor, for you to receive the Duke's pay constantly, and the Appearance of Soldiers, and to let the Fort run so to decay, and not em- ploy them in the Reparations, is but just a perfect Rent charge to the Duke ; for it is not reasonable he should be at that Ex- pence, only to allow you a Sallary and Soldiers; besides the Inhabitants are not so much digested into any military Form, nor half of them armed, tho' you have had, annually, a Moni- tors by the Murthers committed by the Indians, &c. New York Records, No 1. Fol. 51. Nov. 24. Governor Lovelace's Warrant, or Order to all Persons in this Government, to assist a publick Messenger going down to New- castle, or back again to New York. New York Records, No 1. Fol. 52. Decemb. 15. Mr. William Tom of Delaware, his Letter to the Governor, acquainting him, that the Indians have killed and brought in one of the two Murtherers, and we design to hang him in Chains and the Indians promise to bring in the other.. New York Records, No 1. Fol. 52. Dec. 22. Governor Lovelace's Answer to Mr. Tom, approves of their hanging the Indian's Body in Chains; and if the Indians bring in the other Murtherer alive, let him suffer in the most exem- plary way that may be, leaving the Manner and Place to your self. Bids him now, while the thing is fresh, enquire after the former Murtherers. New York Records, No 1. Fol. 53. Jan. 13. Governor Lovelace's Order dated at New York, Recites that there had been, lately, an Order of Prohibition made, that no Corn should be exported out of Newcastle or any Part of Dela- ware River ; s}nce which, the occasion thereof, which was the ex- pected War with the Indians being removed, and the Inhabi- tants there having Grain sufficient for themselves, and also to supply their Neighbors, therefore, requires all Persons to permit Captain Crieger to pass out- of the Port of New York with his Ship, to Newcastle, there to take in Corn, or any other Produce of the Country. New York Records, No 1. Fol. 53. Same Day. The Governor's Licence to Susanna Garland to Trade to Dela- ware. New York Records, No 1. Fol. 53. BOUNDARY QUESTION. 271 Jan. 1^. Governor Lovelace's Order or Brief, dated at New York, and granted to Martin Hoofman, a Lutheran Minister; requiring the Officers in Delaware not to hinder or molest him in collect- ing the Benevolence of the Lutherans in the South River at Delaware and those Parts, towards huilding a House in New York, for their Church or People to meet in. New York Re- cords, No. 1. Fol. 54. Jan. lfi. The Governor's Release to Matthias Nicolls, the Secretary, dated at New York, of any Damage for not having, in due time, made any Settlement upon a distant Parcel of Land which had been patented to him in Delaware, on the West side of the River near the Falls, known by the Indian Name of Chiep- iessing. Provided that some Settlement be now made within 3 Years to come. New York Records, No. 1. Fol. 54. Feb. 6. The Governor's Pass to permit Helletia, Wife of Laurence Hoist, to go in Captain Crieger's Sloop, to Newcastle in Dela- ware, from thence, to go, up the River, to the Swedes Planta- tions, with Shoes, &c. of her Husband's Trade. New York Records, No. 1. Fol. 55. Feb. 20. From the Records of Newcastle County, Governor Love- lace's Grant, at full length, dated at New York, and granted by him as he was Governor General under the Duke of York, of all the Duke's Territories in America, Reciting a Grant which had been made by the Officers at Delaware unto Reloff Anderson, of 200 Acres of Land, on the West side of Delaware River, and on the North West side of Apoquiminick Creek, bounded by Drawers Creek, and by sundry Neighbours there named; Now the said Governor, by Vertue of the Duke's Com- mission to him, ratifies, confirms and grants the Premisses to the said Anderson in Fee, reserving to the Duke the Rent of 2 Bushels of Wheat. Newcastle Records, No. 11. Fol. 5. 1«71. Feb. 26. Governor Lovelace's five several like Grants, entered at full length, all dated in New York, and granted by Virtue of the Duke's Commission to him, of several Parcells of Land, before granted by the Officers at Delaware. 1. To Jacob Piana, 188 Acres, on the West side of Delaware River, and on the North - West side of Apoquinimick Creek, reserving a Quit-Rent to the Duke of a Bushel and \ of Wheat. 2. To Garrett Otto, 180 Acres, at the like Place, reserving Quit- Rent I Bushel. 3. To 272 PENNSYLVANIA AND MARYLAND Hans Hanson, 100 Acres at the like Place reserving Quit-Rents 2 Bushels. 4. To John Aronson and Jacob Anderson, 157 Acres, reserving Quit-Rents to 1 Bushel and A. And 5. To Abraham Coffin 400 Acres, Reserving Quit-Rent 4 Bushels. Newcastle Re- cords, No. 11. Fol. «, 7, 8, 9, 10. Mar. 12. Governor Lovelace signs Instructions, at New-York, to one Mr. Garland, to make Preparation for the Governor's Voyage to Delaware ; namely, to go before, with a Party of Horse, near to Mattiniconk Island in Delaware River, &c. and then to Captain Carr, and the Commissarys, to get Provisions, Boats, &c. and to meet the Governor at such a Place. New York Records, No. 1. Fol. 55. Mar. 18. Governor Lovelace's Instructions, directed to Thomas Dela- wall and Cornelias Steynwick, two of my Council, to the Duke of York in these his Territories of America. They are to the following Purport; Tells them (amongst other things) that they are not unacquainted with the Design of this his Resolu- tion, of visiting those more remote Parts of the Duke's Tsrri- toriesat Delaware, where he hopes to settle all publick Affairs there, as may free him from the further Trouble of a sudden re- visit of them. New York Records, No. 1. Fol. 55. 1671. In this Year a very large Folio Work (of several Tomes) was printed in London, being done and printed by John Ogilby Esq; his Majesty' s Cosmographer. Geographick Printer, &c. called Ogilby's Atlas, adorn'd with Maps and Sculptures: In the sceond Tome of which, being Ogilby's America, at Fol. 168. he gives an Account (very shortly) of the New Nether- lands, then called New York, which comes up very nearly to the Account which the foregoing Records give. But what we principally rely on in that Book is, several Maps, which he therein published in 1671, viz. at Fol. 192. he gives a Map of Virginia, which is (tho' with other Names additionally inserted then) an exact Copy of Captain Smith's Map. At Fol. 182. he gives a Map of Maryland, with the Arms of the Lord Baltimore, being agreeable to that which had been printed by the Lord Baltimore in 1635, save, that he makes the dotted partition, and the 40th Degree compleat,to be, then, about 7 Miles above the Head of Chesopeak Bay, whereas in 1635, Lord Bal- timore had made that dotted Line and 40th Degree to touch the Head of Chesopeak Bay. And at Fol. 168. he gives a third Map, with this Title. Novi Bel^ii quod nunc Novi Jorck vocatur, BOUNDARY QUESTION. 273 Novseque, Anglise, & partis Virginia-, accttratisshna & novissiina Delineatio ; in which last mentioned Map he, again, nine Years before ever the Plaintiff's Father had any thing in the World to do with America, lays down, separately and distinctly, Cape Cornelius and Cape Hinlopen, as two separate and distinct Capes and Cape Hinlopen at a large Distance South of Cape Cornelius, (exactly as it was laid down in the Maps made use of by all the Parties of this Cause in concluding the Articles of Agreement which are now in Question.) And this is so well a known Work, that it the Defendant had ever looked into it (as he must have done) he could not have fancied any thing of the pretended imposition, as he would now complain of, having been committed in 1732: whereas the old Dutch Map of 1663, (at the latest, but most likely many Years older) and this Eng- lish Map printed in this great Work in London, in 1671, both contain the two several Capes as before mentioned. This Book of Ogilby's is spoke to by Paris and other Witnesses, and the Reference to it is, Ogilby's Atlas. To, 2. in large Folio; and at Fol. 192, 182, and 168 therein. Mar. 17. An Order of the King and Council, that the Secretary of State should publish his Majesty s Declaration against the States General, and the said Declaration (which is a Declaration of War against them both by Sea and Land. ) These are proved from the Council Register by Dickenson, and make the Exhibit Co. Off. No. 3. 1672. Apr. 8. Governor Lovelace's Grant, by Vertue of the Duke's Commis- sion to him, dated at Newcastle in Delaware River, Reciting that the Dutch Governor, Peter Stuyvesant, did on 27 Sept. 1655, grant to Isaac Tyne, a Lot and House, at Newcastle, and Tyne having on 17 and 20 Octob. 1662, purchased two other Lots, all contiguous to each other, the said Governor ratines, confirms and grants the same unto the said Tyne, in Fee. Re- serving the Quit-Rent of a Bushel of Wheat to the Duke. Newcastle Records, No. 11. Fol. 11. May 6. The Governor's Order, dated at New-York; Whereas the Time is expired for the Officers holding their Places of Scout and Commissarys at the Whorekill ; the Inhabitants there are hereby impowered to make a New Election, upon the return of whose Names to me, they shall have such further Con- firmation as shall be requisite. New York, No. 1. Fol. 35. 18— Vol. XV. 274 PENNSYLVANIA AND MARYLAND May 17, Minutes of the Governor and Council at New-York. 1. About the Town of Newcastle's being a Corporation, it's allowed of, and that it be a Bayliwick, and governed by a Bayly and 6 Assistants; after the first Year, 4 old ones to go out, and 4 other to be chosen in their Places. The Bayly to be President, and have a double Vote. A Constable, to be chosen by the Bench. To try Causes, as far as 101. without Appeal. 2. As to the English Laws, according to their Desire, to be established in that Town and River. The Office of Scout to be converted into a Sheriff, for the Corporation and River, and that he be annually chosen. 3. As to the 3d, to have free Trade, without being obliged to make entry here, that the Determination thereof be suspended, until advice be sent about it out of Eng- land, or other Consideration had thereof. New-York Records. No. 1. Fol. 56. June 10. Minutes of the Governor and Council at Fort James; As to the Matter about Captain Carr, and Delaware, the Orders made, last Council, about the Town and River, to be allowed and sent. The Continuance of the Garrison in pay, taken into Consideration, whether there is any Occasion for them any longer or no? That they continue, as they are, till further Order. New York Records, No. 1. Fol. 57. July 1. Minutes of the Governor and Council of Fort James ; The Business of the Whorekill, about a Disturbance there from Maryland. Mr. Fletcher makes good what he writ against Daniel Browne, for his abusive Language against the Duke's Interest, and it is attested by the Commissarys and others from thence; Ordered, that Daniel Browne shall enter into a Recognizance of 20/. for good Behaviour, &c. which Order re- cites, that Daniel Browne, a Planter at the Whorekill in Dela- ware Bay, was committed and sent a Prisoner hither (New York) by the Magistrates there, for contemning the Authority of their Court held by Approbation of the Governor, under the Protection of his Royal Highness, together Avith several other abuses; but he having acknowledged his Fault, and begging Pardon, and that Confinement would ruin his Affairs ; ordered a Letter of Thanks be sent, to the Magistrates at the Whore- kill, and that Browne be released, he entering into a Recog- nizance, before his Departure, in 20Z. to keep the Peace, which if he break, he is to be again seized upon, and sent Prisoner to this Place, there to receive Punishment; and he is likewise, at his Return to acknowledge his Fault, and ask Dardon of the BOUNDARY QUESTION. 275 Magistrates at the Whorekill. As to the Request from the Whorekill, that they may lay an Imposition on strong Liquors sold there, it is allowed of and consented to ; and the Magis- trates there, have, hereby, Power to levy and receive the Value of four Guilders, in Wampum, upon each Anchor; this to continue for one Year only, till the Conveniency or Inconven- iency shall better appear. New York Rceords, No. 1. Fol. 57. Aug. 1. The Governor's Order at Fort James in New York. Upon the Return of a double Number, from the Inhabitants at the Whorekill in Delaware Bay, for Scout and Commissarys, I ap prove of such and such for Scout and Commissarys, for one Years, after which they are to make a new Return. New York Records, No. 1. Fol. 5. Aug. 2. The Governor's Commission dated at Fort James in New York, appointing Peter Alricks, one of the two Persons re- turn'd to him, to be Bayliff and principal Civil Magistrate of the Corporation of Newcastle in Delaware for the ensuing Year, And he is, in all things, to be regulated by the Laws of this Government, and such Instructions as have been given him by me and my Council. New York Records, No. 1. Fol. 58. Same Day. The said Governor Lovelace's Commission dated at Fort James in New York, appointing Captain Edmund Cantwell, one of the two Persons return'd to him, to be High Sheriff in New- castle and Delaware River, for the Year ensuing. New York Records, No. 1. Fol. 5. Aug. 7. Governor Lovelace's Commission to Captain Edmund Cant- well, dated in New York, appointing him to enquire after, and make seisure at Newcastle, and on the West side of Delaware, of all stray Horses, neat Cattle, or Swine, unmarked, and hav- ing no certain Owner ; and to dispose of them for his Royal Highness'suse, and render to the Governor an Account thereof. New York Records, No. 1. Fol. 59. Same Day. Governor Lovelace's Commission, to the said Captain Cant- well, dated in New York, authorising him to demand, levy and receive all Arrears of Quit-Rent, due from any the Inhabi- tants of New-Castle and Delaware River, according to the Re- servation in their particular Patents, of which he is to have an authentick List out of the Records. New York Records, No. 1. Fol. 59. 276 PENNSYLVANIA AND MARYLAND Aug. 8. Prom the Records in New York; An Order reciting that Complaint has been made to me (the Governor) by Jan Corne- lius and two others, Inhabitants at Amsland in Delaware River, that after having quietly possessed a Meadow, upon the Island over against Calcoone Hook, Israel Helme, by Misrepresenta- tion, obtained a Patent for the same, having never Possession or Pretence thereto before : so that the said Inhabitants are dispossessed, to the Ruin of their Plantations without Relief; I authorize and impower the Court at Upland, with the As- sistance of one or two of the high Court, to examine into the Matter, and make Report of the Truth thereof to me, that I may make some Order thereupon, according to Equity and good Conscience. New York Records, No. 1. Fol. 59. Aug. 12. Letter from Governor Lovelace, dated in New York, directed to Philip Calvert Esq; Governour of Maryland, complaining of some horrid Outrages, committed upon his Majesty's Sub- jects under the Protection of the Duke's Authority, as were exercised by one Jones, who with a dissolute Party, took the Pains to ride to the Whorekill, where, in Derision and Con- tempt of the Duke's Authority, bound the Magistrates and Inhabitants, rifled and plundered them of their Goods; and when his Authority was demanded, answered only by a cock'd Pistol to the Person's Breast; telling him, that his Highness will not be satisfied with these violent Proceedings, the Indig' nity whereof rebounds on him ; and it would be as easy for Governor Lovelace to retaliate the same Affront on Jones, and his Accomplices, but that he first chuses a more calm Redress from Mr. Calvert, to whom he now appeals, expecting the Cas- tigation of Jones, cum Sociis ; otherwise, he must take other Remedies as the Exigence of this Indignity shall perswade him to. New York Records, No. Fol. 60. It seems by wha+ follows by and by, that no Reparation was made by Governor Calvert, but a farther injury afterwards committed. Same Dap. The Governor's Order to Captain Edmund Cantwell, High Sheriff of Newcastle and Delaware, to cause some Land to be seated and cleared, by a Tenent or otherwise, on the West side of Delaware River, which had been formely granted unto Rich- ard Gorsuch, and since by him assigned to the Governor. New York Records, No. 1. Fol. 60. Aug 13. The Governor's Order at New York, made at the Request of BOUNDARY QUESTION. 277 Jeuft'ro Arniegart Prince, living in Delaware River, excusing her Man Servant from ordinary Trainings in the Company in which he was inlisted ; and also giving her Licence to still some Liquors for her own Use, and her Servants and Labourers in Husbandry. The Last to continue one Year. New York Records, No. 1. Fol. 60. Sept. 5 From New York Records, Order to Captain Carr, upon the Complaint of Robert Williams, that John Ogle, one of the Soldiers at Newcastle, is indebted to him about 10/. requiring the Officers there to examine into the Matter, and if it be as alledged, to give Orders for the Payment, or securing the Debt from Ogle for the Creditor. New York Records, No. 1. Fol. 60. The same Day. The Governor's Order to one Bed loo, to pay some Persons their Boat Hire, for carrying, and bringing back the Troopers Horses, in the Expedition to Delaware. New York Records, No. 1. Fol. 61. Sept. 28. New York Records, a Permit to Christopher Hoogland, to go to Newcastle at Delaware, and from thence up the River, to receive or secure his Debts; any Order to the contrary not- withstanding. New York Records, No. 1. Fol. 61. Oct. 1. Grant from Governor Lovelace, dated in New York, unto Hubert Hendrickson, in Fee, of three Lots of Land in Newcastle, reserving two Bushels Quit Rent to the Duke. Newcastle Re- cords, No. 11. Fol. 12. Oct. 7. Governor Lovelace's Letter, dated from New York, to Cap- tain Carr, owning the Receipt of his Relation and Papers about the Whorekill, and the Marylanders forcibly possessing them- selves of the Place, as also of the Goods and Estates of some of the Inhabitants. I heard, but did not give Credit to it before, supposing it the rash Action of some private Person; not thinking the Authority of Maryland would invade the Duke's Territories, which he hath been possessed of for near eight Y T ears: Their former violent Action, and Force, upon those poor, unarm'd People, together with the Particulars of their Plunder, I immediately sent to the Duke, and may expect Di- rections in a short Time, till then, it is best, for the present to leave Matters as they are. As to the Cloud, which likewise hangs over your Heads at Delaware, which, it is said, they are making Preparations to invade, my Orders are, put yourselves 278 PENNSYLVANIA AND MARYLAND in the best Posture of Defence, fit up the Fort, keep your Com panies in Arms, both there and up the River, in the Town, es- pecially, make your Guard as strong- as you can, and keep a strict Watch. If any Enemy comes to demand the Place, first desire to know their Authority and Commission, and how those of Maryland should, now, make such an Invasion, after so long-, quiet Possession of those Parts, by the Duke's Depu- ties, under his Majesty's Obedience, and by other Nations before that, several Years, before the Date of Lord Baltimore's Patent, whom they never disturbed by Arms, and whose Right is now devolved upon the Duke. Stand well on your Guard, and don't begin; b\it if they fire, or commit any hostile Action, then, use all possible Means of Defence. New York Records, No. 1. Fol. 61. So that it appears hereby, that this was the Time when the Marylanders, by Force, possessed themselves of the Whorekills, but they not keep Possession of it, as you'll pi'esently find. Dec. 16. From New York Records, A Warrant directed to the Sheriff of that City, to take into his Custody the Body of William Douglas, brought thither a Prisoner from Newcastle in Dela- ware, he having been formely banished out of this Government for great Misdemeanors, and to keep him without Bail or main prize, till further Order. New York Records. No. 1. Fol. 62. Jan. 27. Minutes of the Governor and Council at New York, upon re- presenting to them the Inconvenience of debarring Vessels of this Place from going up the River above Newcastle, as also the Distaste taken, that some have had Licences so to do, while others are restrained, It is ordered, that the Prohibition thereof be taken away, and all Sloops may go up that River, taking a Certificate from the Governor of his going from hence; but no other Vessel shall have that Liberty, but such as sail from this Place thither directly. Upon a Letter from Mr. Wharton, and Captain Cantwell, and a Proposal for the Reducement of the Whorekill, by the Officers from Delaware, the Consideration thereof suspended for a short Time. On the Letter with which William Douglas was sent from Delaware, it is ordered, in regard of the Trouble he has given the Country, that he be sent, by William Shackerly, to Barbadoes, there to be sold, to make Satisfaction towards the Charges he has occasioned. New York Records, No. 1. Fol. 62. 1672. Feb. 20. The Governor's Order, dated at New York, Keeites, that Jeuffro Armegart Prince obtained a Judgment on Verdict of a Jury, at the last General Court of Assize, against Andrew Carr, BOUNDARY QUESTION. 279 and his Wife, for 3000 Guilders, or 3001. sterling - , the Determina- tion whereof being referred to the majorPart of the Bench, they made a Report, that 501. should be allowed for Interest, leaving the other Charges and Costs to the Determination of the Law. Upon due Consideration had thereupon, the Governor comfirms and approves of the Judgment for the 3001. and 501. for In- terest, together with 51. more, towards the Plaintiff's Charges, and the usual Costs of Court, all which is to be levied upon the Estates and Goods of the Defendants in Delaware River, or elsewhere, within the Government : To which End the Gov- ernor appoints four Persons to be Commissioners to appraise, and set a Value upon the Island of Titticum in Delaware River, not long since in the Tenure of the Defendants, as also all other Goods or Estate belonging to them, to make Payment to the Plaintiff. New York Records, No. 1. Pol. 62. The same Day. The Governor at New York signs an Execution, directed to the Sheriff of Newcastle, in Delaware River, against the said defendants, for the aforesaid debt, &c. New York Records, No. 1. Fol. 63. March 10. A Pass for John Schouten, to go, with his Sloop, to Newcastle in Delaware River, or Parts adjacent, and to return again with his Loading hither. New York Records, No. 1. Fol. 63. The same Day. A Licence to John Garland, to trade or traffick with the In- dians, or others, at the Whorekill, or any other Parts at Dela- ware, in any Goods not prohibited, and likewise to go up the River above Newcastle, in any Vessel belonging to this Place, ac- cording to the Toleration granted by me in Council, 27 January last. And all Officers and Magistrates at Delaware are required not to hinder him, any former Orders to the contrary notwith- standing. New York Records, No. 1. Fol. 63. 1673. Apr. 7. Two several Grants at full Length, from Governor Lovelace, as the Duke's Governor, both dated in New York. 1. To Mathias de Ring and Emilius de Ring of a House and Lot of Ground at Newcastle, reserving to the Duke the Quit Rent of one Bushel. 2. To Captain Edmund Cantwell, and Johannes de Haes, of 100 Acres of Land between Dog Creek and Namon's Creek, reserving to the Duke the Quit Rent of one Bushel of Wheat. Newcastle Records, No. 11. Fol. 13, 14. April 14. From the New York Records, Minutes of the Governor and S80 PENNSYLVANIA AND MARYLAND Council. The Affair of the Whorekill taken into Consideration ; Letters read from Captain Carr, Captain Wharton, and Captain Cantwell ; with their Proposals for Red ueement of. the Place, it is ordered, that a Commission be sent, to the Officers and Mag- istrates at Delaware, to go to the Whorekill, there to keep a Court in the King's Name, and enquire of all irregular Pro- ceedings, and settle the Government and Officers there, as for- merly, under his Majesty's Obedience, and the Protection of his Royal Highness; for which there shall likewise be sent par- ticular Instructions. New York Records, No. 1. Fol. 64. So that this shews that the Marylanders did not keep Pos- session of the Whorekills. June 24. Minutes of the Governor and Council, and a Proclamation, reciting the great .Scarcity of Wampum, throughout the Duke's Territories, which was paid and received as Current Payment there, in all Transactions between Man and Man : Therefore, in order to bring in Wampum, encreasing, and raising the Value of it to one Third more than it was of before; and this Procla- mation shall be sent, and promulgated in Albany, Esopus, and Delaware, &c. there to be in Force. New York Records, No. 1. Fol. 64. It is hoped the foregoing Records, under this Chapter, af- ford super-abundant Proof of the Fact, that the Duke of York (also) from 1663 to 1673, did actually possess both New York, and Delaware; and that he, by his successive Governors, Colonel Nicholls, and Colonel Lovelace, held and accounted Delaware, as Part of, and appurtenant, in his Time to New York ; and that he did, in the Terms of our Allegations in our Bill, all Sorts of Acts of Owner- ship, Government, and Propriety in Delaware, equally, and as well as in New York. But, it being now Time of War with the Dutch, they, by the Numbers of Dutch left there at the former Conquest, did, about this Time, for a few Months only, dispossess the Duke, as shall be shewn in the next Place. Chap. IV. Of the Dutch regaining Possession (or a few Months) of New York and Delaware also. 1673. Aug. 12. Out of the Dutch Record Book, (remaining in the Secretary's Office of New York) containing Orders of the Council of War, fly the Commanders of the Dutch Squadron— is extracted the fol- lowing Dutch Commission, viz. The noble and strict Council of BOUNDARY QUESTION. 281 War, under the States General and Prince of Orange, of a Squadron of Ships now riding at Anchor in Hudson's River, in New Netherland. To all, &c. Greeting. Whereas it is neces- sary to appoint a fit Person, who, as Governor General, is to have the chief Command over this Conquest of New Netherland, with all its Appendencies and Dependencies, beginning from Cape Hinlopen, or South Side, of the South, or Delaware Bay, and 15 Miles more Southerly, (with the said Bay, and South River, included) as the same, in former Times, by the Directors of the City of Amsterdam, and, afterwards, by the English Government, in the Name, and under the Duke of York, was possessed ; and further, from said Cape Hinlopen, alongst the main Ocean, to the East End of Long Island, and from thence Westward, &c. , provided it come not within ten Miles of the North River, in pursuance of some Provisional Limits made in the Year 1650, and afterwards by the States General, on 20 Feb. 1656, and on 23 Jan. 1664, ratified ; so we by Virtue of our Com- mission granted to us by the States General and Prince of Orange do appoint Anthony Colve, the Captain of a Company of Foot in the Service of the States General, and the said Prince, as Governor General, those Lands, and Forts thereto belonging, with all its Appendencies and Dependencies, to govern, rule, and against all Invasions of Enemies to defend ; ordering all Officers, Judges, Magistrates, Commanders, Soldiers, Free- men, and all Inhabitants of those Countries to obey him as Gov- ernor, Dated in Fort William Hendricks; and signed Cor- nelius Everse Jun. and Jacob Binkes, Dutch Records from New York, No. 2. Fol. 43. Sept. 19. At the Meeting of the Gentlemen, Commanders, and Council of War, held 19 Sept. 1673, the foregoing Commission, for Governor General Anthony Colve, was registered this Day, by Order of the Commanders. Dutch Records, No. 2. Fol. 43. Sept. 19. The same Day Governor Anthony Colve, by the Title of Governor General, under the States General, and Prince of Orange, by his Commission, reciting the Necessity to appoint a Person to be Commander and Sheriff, in the South River of New Netherland, last called Delaware, beginning from Cape Hinlopen, and as much more Southerly as the same, heretofore, in the Time of the former Dutch Government, was possessed and enjoyed, to the Head of the said River; and reciting the good Character of Peter Alricks, late Ensign and Factor there, at the Time of the said former Dutch Government, does ap- point the said Peter Alricks Commander, and Sheriff of the 282 PENNSYLVANIA AND MARYLAND said River, and the Inhabitants thereof, to govern and rule, under the chief Command and Direction as above said, the said River and Inhabitants, as well on the East as Western Shore, and to defend them from all Enemies Invasions. Dated at Fort William Hendrick in New Netherlands; signed A Colve. Dutch Records, New York, No. 2. Fol. 45. Feb. 1(5. An Entry in the Dutch Book of Records, that a Patent and Ground Brief was granted to two Brothers, Ephraim and Cas- par Harmans, for a Neck, or Piece of Land, in the South River, below New Amstel, on the South Side of Apoquinimini Creek, by Dieck Creek, and St. Augustine's or Arien's Creek, con- taining, besides the Meadows, 250 Morgan, (500 Acres) which Ground Brief is signed by the Governor Colve, and the Secre- tary N. Bayard. Dutch Records, New York, No. 2. Fol. 45. The same Day. The same Grant entered at full Length in the old Records of Newcastle. Newcastle Records, No. 11. Fol. 15. Feb. 9-19. Articles of Peace between King Charles the Second, and the States General, concluded at Westminster, the 6th Articles whereof is in these Words. " That whatever Country, Island. "Town, Haven, Castle, or Fortress hath been, or shall be taken, "by either Party, from the other, since the Beginning of the "late unhappy War, whether in Europe, or eleswhere, and "before the Expiration of the Times above limited for Hos- "tility, shall be restored to the former Owner, in the same Con- dition it shall be in at the Time of publishing this Peace." This is printed by the King's Printer, and by the King's Spe- cial Command, so long ago as 1685, and is the printed Book of Treaties, Fol. 180. Certificate from the King's Prothonotary in Chancery, that He cannot find any Inrollment of this Treaty neither, nor any Original, or other Transcript, or Memorial of it. Paper Cer- tificate. - , Note — This Treaty also has been diligently enquired after by Paris, but is lost. So that by this Treaty we see the Dutch gained but a short Possession of New York and Delaware, of a very few Months only, before they restored it again to this Crown, by Treaty. BOUNDARY QUESTION. 283 Chap. V. From the New Grant made by King Charles the Second to the Duke of York, in June, 1674, doion to the Time of grant- ing Pensilvania, and the Lower Counties, to Mr. Penn, and his being in full Possession of all the same, at the End of the Year 1682. 26 Car. II. 1674, June 29. From the Chappie of the Rolls, Copy of the Grant made (without any Recital) to the Duke of York, by Letters Patent, of All that Part of the main Land of New England, beginning at St. Croix, next adjoyning to New Scotland in America, and extending, along the Coast to Pemaquid, and so, up the River thereof, to the furthest Head of the same, as it extended North- wards; and extending, from thence, to the River of Kineb3quie, and so, upwards, by the shortest Course, to the River Canada, Northwards ; and also all that Island called Mattowacks, or Long Island, lying towards the West of Cape Codd, and the Narrohigansetts, abutting upon the main Land, between two Rivers there, severally called Connecticut's and Hudson's River; and the said River, called Hudson's River; and all the Land, from the West Side of Connecticut River, to the East Side of Delaware Bay : and also all those several Islands, called Martin Vinyards, and Nantuckett ; together with all the Lands, Islands, Soils, Rivers, Harbours, Mines, Minerals, Quarries, Woods, Marshes, Waters, Lakes, Fishings, Hawkings, Hunting, and Fowling; and all other Royalties, Profits, Commodities, and Hereditaments, to the said several Islands, Lands, and Premises belonging and appertaining, with their, and every of their Appurtenancies; and all the King's Estate, Right, Title, Interest, Benefit, Advantage, Claim, and Demand, of, in, or to the same, or any Part thereof. To hold to the Duke of York in Fee, to be held of the King, as of the Manor of East Greenwich, in free, and common Soc- cage, and not by Knights Service, rendering 40 Beaver Skins yearly : With Powers of Government, &c. , granted to the Duke of York, and to appoint Governors, Officers, and Ministers under him: and an express Power (Fol. 4) to the Duke of York, his Governors and Officers, for their Defence and Safety, to en counter and expulse, by Force of Arms, as well by Sea as by Land, all such Persons as, without their Licence, should at- tempt to inhabit within the several Precincts and Limits of his Majesty's said Territories, and Islands, &c. Being in the like Words with the former Grant, made to the Duke in 1663. This Exhibit is proved by Bulmer, and is Rocha, No. 5. 284 PENNSYLVANIA AND MARYLAND Please to observe, that this second Grant to the Duke of York, of all Lands belonging to his great Settlements, when, in Fact, Delaware, had really belonged to those great Settlements for ten Years together before, in the Hands of the Duke of York himself, as well as that it had also, before that, belonged to the Dutch, whilst they had the Possession of New Netherlands, (from 1629 to 1674, in the whole) seems to make those general ^Vords more significant and effectual to the Duke of York, in this second Grant, than they were in the first Grant, made to him 11 Years before. July 1. In two Days after the Grant to the Duke of York he granted a Commission, reciting the Letters Patent to himself, and ap- pointing Major Edmund Andros to be his Lieutenant and Gover- nor within the Lands, Islands, and Places aforesaid, to execute all Powers, which by the said Patent were granted to the Duke ; requiring all the Inhabitants to yield Obedience to the said Edmund Andros Esq ; and the said Edmund Andros to observe all such Orders as he should receive from the Duke. This Com- mission is enrolled at New-York, and our Copy from thence is New-York Records, No. 1. Fol. 65. Oct. 31. A Record of Matters past in Council since the Governor's re- ceiving the Province of New- York from the Dutch, Oct. 31. 1674. Saturday, Oct. 31. 1674. The Fort being, this Day, surrendered to the Governor, Mr. Matthias Nicolls was, at the City-Hall, sworn one of the Council. Three Constables for the City of New-York were there likewise appointed and sworn. New- York Records, No. 1. Fol. 66. Nov. 2. By the Governor, It is resolved and ordered that the Magis- trates at Albany, &c. , who were in place at the time of the Dutch coming here, in July 1673, be re-established ; the same for Dela- ware River (except Peter Alricks the Bayliff,he having profer'd himself to the Dutch, at their first coming, of his own Motion, and acted very violently, as their chief Officer, ever since) ]New-York Records, No. 1. Fol. 66. Nov. 3. Governor Andros's Letter, dated at New-York, to the Gov- ernor of Maryland, acquainting him that he had, on Saturday last, received that Place, and Dependencies, from the Dutch, in behalf of his Majesty, to continue, as formerly, under the Com- mand of his Royal Highness He takes this first Opportunity to acquaint him thereof, and that he has given Orders that BOUNDARY QUESTION. 285 all Officers and Magistrates of that Government and Delaware do take Care, on this Change, to prevent, or redress, any kind of Injury to the neighbouring Colonys, and will not doubt the like on the Governor of Maryland's Part. New-York Records, No. 1. Fol. 7. Nov. 4. Several Officers are appointed for several Places in New- York itself; after which it goes on thus, viz. Capt. Edward Cant- well formerly Sheriff, to be Scout or Sheriff of Delaware, Mr. William Tom to be Secretary or Clerk there; Ordered that Capt. Cantwell and Mr. Tom be authorized to take possession of the Fort, Cannon, and all other Stores of War of Newcastle, or any Part of Delaware River, for his Majesty, pursuant to the Articles of Peace, and to remain in the Command thereof until further Order; That Capt, Cantwell and Mr. Tom have an Order to receive the Quit Rents, and all other Dutys, whether Customs or Excise, as formerly was established before the Dutch coming to the Place; and, for Customs, it is, since, established by his Royal Highness; and to return to me a due Account of the State of all other Matters relating to the Revenue by the first Convenience. New-York Records, No. 1. Fol. 66. 1674. Nov. 4. Governor Andros's Commission, dated in New-York, appoint- ing certain Persons whose Names are left in blank, but the Commission is directed, "To the Commissarys of Newcastle "in Delawai-e, who were in Office at the time of the Dutch eom- "ing into these Parts in July 1673;" The Commission recites, that the Governor had received that Place and Government in the behalf of his Majesty, from the Dutch, and being invested in the Command thereof under the Duke, he, in his Majesty's Name, appoints them to be Commissarys in the Town of New- castle upon Delaware River and Dependances, authorising them to act according to the Laws and Customs as had been used amongst them during his Royal Highness's Governor Nicolls and Governor Lovelace's time. Iinpowers them also, to give Order for electing a Constable, in each of the other Towns ad- jacent, and to administer the Oath to him, as directed in the Laws establish'd by his Royal Highness. New-York Records, No. 1. Fol. 68. Same Day. A short Letter from Governor Andros along with that Com- mission. New -York Records, No. 1. Fol. 68. Nov. 4. Two several Commissions from Governor Andros, both dated 286 PENNSYLVANIA AND MARYLAND in New-York, 1. Appointing Capt. Edmund Cantwell and Johannes de Haas to receive the Quit- Rents at Delaware, and Arrears thereof, together with all other Dutys, whether Custom or Excise, as were due and formerly establisht before the Dutch coming into the Place in July 1673, as also for the Customs now, as they have been since ordered by his Royal Highness, a Copy whereof is herewith sent ; and ordering these Persons to send to Governor Andros a due Account of these, as well as of all other Matters, relating to the Revenue and Government. 2. The Second Commission appoints William Tom Secretary for the Town of Newcastle on Delaware. New- York Records, No. 1. Fol. 69. Nov. 6. Governor Andros's further Commission dated in New York, recites that Delaware is a Dependant on New York, and au- thorizes Captain Cantwell and Mr. Tom to receive the Fort at Newcastle, as also the cannon, and Stores of War there, or any other Part of the River, for the King's Use, pursuant to the Articles of Peace; and also to send to any other Part of the Country for repossession and settling any of His Majesty's Subjects in their just Rights, and particularly at the Whore- kill. New-York Records, No. 1, Fol. 69. Same Day. An Entry of the Names of five Persons as Justices for New- castle, and five more for the River. New- York Records, No. 1. Fol. 70. Nov. 9. Governor Andros's Proclamation, dated in New- York, recites that the King and the DuKe had sent him over to receive that Place and Government from the Dutch, and to continue in the Command thereof under the Duke, he confirms all former Grants, Privileges, and Estates legally possest under the Duke before the late Dutch Government : and declare that the known Book of Laws, formerly establisht and in Force under the Duke's Government, is now again confirmed by the Duke, and Courts are to be held, and Magistrates and Civil Officers belonging thereto, are to be chosen, and establisht accordingly. New- York Records, No. 1. Fol. 70. Nov. 11. Govenor Andros's Commission, dated in New- York, impow- ering Capt. Cantwell and Mr. Tom, to administer the Oath, to the Commissarys at Newcastle, to those of the Court up the River, and to those at the Whorekill in the Bay. New-York Records, No. 1. Fol. 71. So that the Duke of York has clearly now the Possession of the Whorekills again. BOUNDARY QUESTION. 287 Nov. 12. Governor Andros's Order, dated in New-York, to Capt. Cant- well, to enquire for the King's Colours, which Capt. Carr, late Deputy-Governor at Delaware had, and to use the same in the Fort, and for the Company whereof Capt. Cantwell was Captain in Newcastle. New- York Records, No. 1. Fol. 70. Jan. 9. Governor Andros's Letter, to Capt. Cantwell at Delaware, expressing his satisfaction that Cantwell had taken possession of the Fort, and also settled the Magistrates in Newcastle, and up the River, and at the Whorekill; gives him Orders about the Fort; orders him to give New-comers any reasonable Quantity of Lands ; appoints him Surveyor for the whole River and Bay; as to the execution against Carr's Estate, my Pro- clamation sufficiently confirms all Judicial Proceedings; gives him Directions about the Militia;, as to the Whorekill, the Number is, as yet, too little for a Company; but, if it's neces- sary, you may appoint a Lieutenant, who may chuse Serjeants, and command there; you have done well in summoning the Indians to demand Justice for the Murtherof Dr. Roads, which pray prosecute, that it may be effected without War ; but if not, let me hear from you, that I may take Order in it and supply you accordingly. New- York Records, No. 1. Fol. 72. Feb. 23. Governor Andros's Letter from New- York to Capt. Cantwell. I shall come into your Parts in April, in the mean time you are not to suffer Capt. Carr to make away his Estate, upon which you may lay an Attachment in the King's Behalf. You are also to prepare an Account and State of the customs to Lady- day next, to be remitted to his Royal Highness's Chief Col- lector here. New-York Records, No. 1. Fol. 73. 1675, Mar. 27. Governor Andros's Letter from New-York, directed to Capt. Edmund Cantwell Scout of Newcastle in Delaware. About an Indian found dead and supposed to have been murdered, about the Indians having formerly murder 'd Dr. Roads. About an- other Indian killed by an Inhabitant in the River, and Orders that the Magistrates enquire into that last Murder and do Jus- tice immediately in it, altho' it should not be demanded by the Indians. He adds, I hope you have prohibited all manner of distilling of Corn, as well as its Transportation; if not, I pray that it be done presently. New-York Records, No. 1. Fol. 74. Apr. 23. Governor Andros's Letter to Capt. Cantwell, on receiving an 288 PENNSYLVANIA AND MARYLAND Account from him of the Murder of two Christians ou the 8th instant about Milstone River. Tells him the Nevisans Sache- makers; and about 30 of their People had been just now with him, and concluded a Peace. I have sent to Governor Carteret, to enquire into this Murther, and to give Order for Horses for our Journey to Delaware, to be ready the last instant. I shall come by the way of the Falls, where you may meet me Tuesday the 4th, or may come on further, towards Millstone River : In the mean time look to yourselves, and give no Offence or Suspicion to the Indians. As to James Sandyland you ought to have a Court and legal Trial to detain, punish or release him, therefore, let that be done, for that was my Meaning; as to his being out upon Bail, if he be not criminal it cannot be denied him. New- York Records, No. 1. Fol. 75. Same Day. Minutes of the Governor and Council agreeing to the Matters mentioned in the Governor's above Letter. New- York Re- cords, No. 1. Fol. 75. Apr. 30. Governor Andros's Letter from New- York, to Capt. Cantwell, on receiving from him an Express with the Alarm in his Parts, and Fear thereof the Indians Intention to do Mischief; telling him his Information is wrong, for Reasons which he gives him : shall set out the 3d of May, and be at the Falls next Day, and hope for the Quiet and Settlement of all those Parts. Thanks him for his Care for the Preservation of the Inhabitants of the River, and giving Notice to prevent Surprizes, and providing against all Events; and, if there shall be Occasion, I shall not be wanting in supplying you with all Things necessary. New- York Records, No. 1. Fol. 76. May 13 & 14. An Order made, at a special Court, held by the Governor at Newcastle in Delaware, in the Case of the Inhabitants at Ver- drietys Hook, in this River, complaining that William Tom molests them in the Enjoyment of the Meadow-Ground next their Plantations, and Tom claiming the same by virtue of a Patent from Colonel Nicolls, a Compromise relating to the Enjoyment of the same was proposed, and ordered. Records from Newcastle, No. 11. Fol. 16. May 15. An Order made and signed by Governor Andros at Newcastle, and recorded at the last-mentioned special Court, ordering that all new Lands be surveyed and patented, and recorded in the Court-Books, of the several Jurisdictions or Precincts; also, BOUNDARY QUESTION. 289 that all Lands, formely taken up and settled, but not surveyed, and the Owners have not Patents, that such Owners, forthwith, before the next general Court, give Notice to the Surveyor- General that it be done, and they take out Patents to assure them their Lands, and prevent future Disputes, and that it be recorded. In order to which, you are to give Notice at your next Monthly, or Quarterly Courts, in the several Precincts, And this Order is directed thus, "To the Three several Courts "of Delaware River or Bay." Records from Newcastle, No. 11. Fol. 17. June 23. From the New- York Records, Minutes of the Governor and Council, upon the receiving Letters from Delaware about a Disturbance of the People there, and their Disobedience to the Magistrates, It is order' d that some Person be sent thither- about it, and that, with the Person to be sent to Delaware, two Files of Soldiers, or some Force, be sent likewise, New- York Records, No. 1. Fol. 76. July 24. Minutes at another Meeting of the Governor and Council, That the former Order of Council of 23 June, about the Dis- turbance at Delaware, be respited ; and that an Order, or special Warrant, be sent thither, for Jacobus Fabricius and John Ogle, as Ringleaders, to make their Appearance here to answer the Misdemeanors objected against them touching the late Distur- bance; also, the Business about Capt. Carr's Meadow-Ground at Newcastle being taken into Consideration, it is order'd that the Order made at Delaware, be observed, for the valuing of the said Land, and the Town to have the Refusal. New- York Records, No. 1. Fol. 77. July 26. Then immediately follows the two special Warrants, signed and sealed by Governor Andros in New-York, against Fabricius and Ogle at Delaware, reciting that the Governor had received Information from the Magistrates at Delaware, that they were principal Ringleaders in the tumultuous Disturbance upon 4th June last at the Town of Delaware, and had disobeyed the Order set forth by the Magistrates in a riotous manner; com- manding them, therefore, in the King's Name, forthwith to make their personal Appeareance before the Governor in New York, to answer what shall be objected against them on tha* account, as they'll answer the contrary at their utmost Peril. New- York Records, No. 1. Fol. 77. 10— Vol. XV. 290 PENNSYLVANIA AND MARYLAND July 26. A Grant from Governor Andros, dated in, and sealed with the Seal of the Province of New-York, recorded at full length there, reciting a Patent heretofore granted by the late Governor Lovelace, unto Robert Tallant, on 26 Feb. 1(371, for 400 Acres of Land on the West side of Delaware River, and on the South- east side of Apoquimini Creek, and reciting divers mesne As- signments thereof down to BezalieU Osborne; now Governor Andros, by virtue of his Commission and Authority froin the Duke of lork, ratifys, confirms and grants the said Premisses, unto the said Bezaliel Osborne in Fee, reserving as a Quit- Rent to the Duke, four Bushels of Wheat. This is the first Grant of Lands which we have, that was made by Governor Andros, and it happens to be entered at full length, and so shews the Form of his Grants ; we have some Hundreds more of his Grants hereafter, but they are (as to many of them) very shortly recorded. This is New-York Records, No. 3. Fol. 9. Juhj 28. A Letter dated in New- York, signed by M. Nicolls, and there said to be sent by the Governor's Order to Capt. Cantwell ; as to Capt. Carr's Meadow and Land near the Town, now upon Sale, and in Dispute betwixt the Town and particular Persons, the Court is to make a ! Return thereof to the Governor, whether it was -ever enclosed or improved, particularly since Capt. Carr had it; in the mean time it to remain as it was the last seven Years of the English Government, before the Dutch took the Place in July 1673: Upon which Return the Governor will give further Directions. Encloses the two special Warrants for Fabricius and Ogle; the other chief Ringleaders are to be bound over to the next General Court there. New-York Records, No. 1. Fol. 77. Sept. 15. From New-York Records, Minutes of the Governor and Council, Fabritius being ordered, by special Warrant, to make his Appearance before the Governor here, to answer a Complaint made against him by the High-Sheriff and Court at Newcastle, Ogle falling sick appeared not, it's ordered that Fabritius, in respect of his being guilty, and his former irregular Life, be suspended from exercising his Function as a Minister, or preach- ing any more within this Government, either in publick or privates. The Orders of the Court at Newcastle, for making the Dykes, to be confirmed ; The Out-People to have like Com- monage of the Meadow, adjoining to the Dykes they helped to make, as those of the Town. Captain Carr's Meadow having never been enclosed, nor purchased from the Indians, It is BOUNDARY QUESTION. 291 ordered that the said Lands shall be purchased of the Idnian Proprietors in the Duke's Name, ; in the mean time to remain Common, as it is. Ordered that the Block-house at Newcastle, be removed, and built on the Back-side of the Town, about the middle of it, at or near the Old Block-house, wherein there may be a Court-house and a Prison also. New-York Records, No. 1. Fol. 78. Sept. 23. An Indenture between Edmund Andros Esq ; Governor and Lieutenant under the Duke of York, of all his Territories in America, for and on behalf of the Duke of the one Part, and Mamarakickan, Auricktan, Sackoquewan, and Nanneckos, on behalf of themselves, as the true Sachems and lawful Indian Proprietors of the Lands after-mentioned, on the other Part. Whereby, in consideration of a certain sum of Wampum, and other Goods, mentioned in the Schedule, to them in hand paid, they grant, bargain and sell to Governor Andros, for and on behalf of the Duke of York, All that Tract of Land, on the West side of Delaware River, begining at a Creek next to Cold Spring, somewhat above Mat- tinicom Island, about 8 or 9 Miles below the Falls, and as far above the said Falls as the other is below them, or further that way, as may be agreed on, to some remarkable Place for the more certain Bounds; As also, all the Islands in Delaware River, within the above mentioned Limits, both below and above the Falls (except only one Island called Peter Alrick's Island) together with all Lands, Soils, Meadows, Woods, Marshes, Rivers. Waters, &c. , without any Reservation of the Herbage or Trees, or any thing growing or being thereon. To hold to Governor Andros and his Successors, for and on be- half and to the Use and Behoof of the Duke of York, his Heirs and Assigns for ever. Which Deed is executed before 12 Christian Witnesses, of which Edmund Cantwell is one; and the Schedule enumerates a great Quantity of Goods paid for said Purchase. New-York Records. No. 1. Fol. 79. Oct. 21. Governor Andros' s Letter from New-York to the Governor of Maryland, merely about some expected Quarrels with the In- dians, and offering him his friendly Assistance. New York Records, No. 1. Fol. 81. Nov. 5. An Entry in the New-York Records, that the above-mentioned Indian Purchase Deed was then recorded, as it is at full length. New-York Records, No. 1. Fol. 79. 292 PENNSYLVANIA AND MARYLAND Nov. 5. Three several Grants from Governor Andros. 1. To Thomas Spry of a Parcel of Land called Doctor's Commons, on the West Side of Delaware River, and on the South Side of St. George's Creek, containing 160 Acres, together with the Marshes there- unto, as by the Return of the Survey by Captain Edmund Cant- well, Quit-Rent 1 Bushel and half 2. To James Crawford of a Parcel of Land called Barwick, on the West Side of Delaware Bay, on the South Side of St. George's Creek, and laid out for 210 Acres together with the Marshes thereunto, as by the same Surveyor's Survey, Quit-Rent 2 Bushels. 3. To Bernard Egberts of a Parcel of Land, called Smith's Hall, on the West Side of Delaware River, on the South Side of St. George's Creek, con- taining 30Q Acres, as by Cantwell's Survey, Quit-Rents 3 Bushels. New-York Records, No. 3. Fol. 10. Same Day. Two more Grants from Governor Andros. 1. To Jacob Young for a Parcel of Land on the West Side of Delaware River, on the North Side of St. George's Creek, containing 1280 Acres, with the Marshes thereto, as by Cantwell's Survey, Quit- Rent 12 Bushels and 3 Pecks. 2. To Hermanus Wiltbank, of Land near to the Whorekill in Delaware Bay, lying upon Fish-Creek, containing 800 Acres, as by Cantwell's Survey, Quit-Rent 8 Bushels. New-York Records, No. 3. Fol. 11. Same Day. Two more Grants from Governor Andros. 1. To Henry Ward of a Neck of Land on West Side of Delaware River, between the Beaver Dam and Dragon Swamp, near to St. George's Creek, containing 446 Acres and I, with the Marshes thereto, as by Cantwell's Survey, Quit-Rent 4 Bushels and ',. 2. To William Roods, of a Tract of Land at the Whorekill on the West Side of Delaware Bay, called Rehobah, lying upon Rehobah Bay, bounded on one Side by John Avery's Land, containing 600 Acres, as by Cantwell's Survey, Quit-Rent 6 Bushels. New- York Records, No. 3. Fol 12. Note — The first of those Grants is also at full Length recorded in Newcastle Records, No. 11. Fol. 18. This last Grant, amongst many other Proofs, shews, the Whorekills was the Name of a District ; for Rehobath Bay is > at least 7 Miles from the Town of Whorekills or Lewis, and yet is said to be at the Whorekills. 1675, Nov. 5. Three more Grants from Governor Andros. 1. To Hans Peter- son, of Land on the West Side of Delaware River, in Skillpades- Kill or Creek extending out of Christiana Creek, containing 157 Acre* and i, with the Marshes thereto, as by Cantwell's BOUNDARY QUESTION. 293 Survey, Quit-Rent 1 Bushel and |. 2. To Charles Peterson, of Land, on the West Side of Delaware River, on the North Side of Verdrityes Hook, containing 266 Acres, with the Meadow or Marsh thereto, as by Cantwell's Survey, Quit- Rent 2 Bushels and L 3. To George Moor, of Land called Winsor, on the West Side of Delaware River, on the South Side, of St. George's Creek, containing 280 Acres, with the Marshes thereto, Quit- Rent 2 Bushels and •]. New-York Re- cords, No. 3. Fol. 13. Two more Grants from Governor Andros. 1. To Anne Wale of Land, called Chelsey, oh the West Side of Delaware River, and on the South Side of St. George's Creek, containing 300 Acres, with the Marshes-thereto, as by Cantwell's Survey, Quit- Rent 3 Bushels. 2. To John Ogle of Land, oh the West Side of Delaware River, called Hampton, on the North Side of St. George's Creek, containing 300 Acres, as by Cantwell's Survey. Quit-Rent 3 Bushels. New-York Records, No 3. Fol. ,14. Note — The last of these Grants is also recorded at full Length in Newcastle Records, No. 11. Fol. 19. Same Day. Two more Grants from Governor Andros. 1. To Morris Listen, of Land on the West Side of Delaware Bay, lying on a Fork of Cedar Creek, containing 150 Acres, as by Cantwell's Survey, Quit Rent 1 Bushel and £. 2. To Peter Bawcom and Richard Blinks, of Land on the West Side of Delaware Bay, called Stening, or Bawcom Briges Creek, containing 600 Acres, together with all Marshes thereto, as by Cantwell's Survey, Quit-Rent 6 Bushels. New-York Records, No. 3. Fol. 15. Dec. 1. Another Grant from Governor Andros, to Ephraim and Caspar Harman, of Land, called St. Augustine, on the West Side of Delaware River, being on the North Side of Apoquemini Creek, and on the South Side of St. Augustine's Creek, con- taining 400 Acres, as by Cantwell's Survey, Quit-Rent 4 Bushels. New-York Records, No. 3. Fol. 16. Note — The same Grant recorded, at full Length, in New- castle Records, No. 11. Fol. 20. Dec. 5. Minutes of the Governor and Council taken from New- York Records. The Letter from Captain Edmund Cantwell being taken into Consideration, concerning the Arrival of Mr. Fen- wick and others at Delaware, with their Pretences. Resolved, that Mr. Fenwick having no Order, (which if he had, ought to have been brought first and recorded here) he is not to be received as Owner of any Land in Delaware, but to be used 294 PENNSYLVANIA AND MARYLAND civilly, paying all Duties, as other the King's Subjects in those Parts : and if he, or any that come with him, desire Land to the Westward, that there be assigned them fitting Proportions, as to others, and due Return made of the Surveys : As to any Privilege, or Freedom of Customs, or Trading on the Eastern Shore, none to be allowed, in any case, to the smallest Vessel, Boat, or Person. The Magistrates and Chief Officers are to be very careful that there be no Abuse committed on the Eastern Shore, under any Pretence whatsoever, contrary to the above : As to Customs, Newcastle to pay but as New-York, two per Cent. &c. But, above the Town, or any other Place on the Bay or River, except Whorekill, to pay the Addition of 3 per Cent, as per Regulation. New- York Records, No. 1. Fol. 82. Note— A Copy thereof, but signed Mat. Nicoll's Secretary, and expressly called Minutes of a Council held in New- York, is also entered in Newcastle Records, No. 11. Fol. 21. Dec. 10. Governor Andros's Letter from New- York to the Governor of Maryland, touching a War with the Indians which the Gov- ernor of Maryland was engaged in, and wherein the Susque- hannah Indians were concern'd. New-York Records, No. 1. Fol. 83. Dec. 10, Governor Andros's Letter from New- York to Captain Cant- well. You are punctually to observe the Order I here send you, concerning Mr. Fenwick, and the Customs, as practised here, which 1 hope will satisfy all Persons; Mr. Dyre will send you the Rules you desire, for Entrys, &c. I am sorry you find the Indians in your Parts wavering, be just to them, I'll supply you with what is fit for a Garison in your Town, at this Junc- ture, for Security of your Parts ; and would have you take Or- der for removing the Blockhouse, about the middle of your Town, above it, into the Place I shewed you when there, so to command both Ends. New-York Records, No. 1. Fol, 83. Decemb. 14. Governor Andros's Commission dated at New York, author- ising Casper Harman to fetch and bring in, from out of the Woods, in and about Delaware Bay, adjacent to Apoquemini and Landwerdin, within this Government, all wild and un- marked Cattle, Hogs and Hqrses, not having a known Owner; he bringing the same to the Chief Officer or Magistrate at Apo- quemini. and paying one third Part or Value to his Royal Highness's Use, the other two thirds to be his for his Pain, and Trouble. This Commission to be in Force for one Year. New York Records, No. 1, Fol. 84. BOUNDARY QUESTION. 295 Dec. 15. Governor Andros's Grant dated in, and under the Seal of the Province of New York, whereby he grants in Fee to Peter Bay- ard, a parcel of Land called Bunibey's Hook, on the West side of Delaware Bay, on the Mouth of Duck Creek, contain- ing 600 Acres, as by Cantwell 's Survey, Quit-Rent reserved to the Duke 6 Bushels. This is recorded at full Length in New- castle Records. No. 11. Fol. 22. Jan. 12. A renewed Execution, under the Hand and Seal of Governor Andros, dated at New York, recites that Jeuffro Armegart Prince, of Upland in Delaware River, obtained a Judgment at the Assisses held in the City of New York in 1672, in the time of Governor Lovelace, against Andrew Carr and Persilla his Wife, Inhabitants in the said River, for a Sum, for which a special Warrant of Execution was also granted, but the same was not fully effected ; at her Request that the former Execu- tion may be renewed, the Governor in the King's Name, re- quires Captain Cantwell, Sheriff of Delaware, or his Deputy, to proceed according to the said Judgment, in what remains unexecuted. New York Records, No. 1. Fol. 85. Jan. 15. In the New York Records, a short Entry of a Grant from Governor Andros (but without a Date there) unto Percifell Wodersell and 4 others of Land on the Westward side of Del- aware River, and on the North- West side of Black Bird Creek, containing 1200 Acres, as by Cantwell' s Survey, Quit-Rent 12 Bushels. New York Records, No. 3, Fol. 47. Jan 15. The same Grant recorded at full length, in .New castle Records, No. 11. Fol. 23. Jan. 15. Another Grant from Governor Andros in New York, and under the Seal of that Province, to James Wallem, of a Lot of Ground below the Fort in the Town of Newcastle, Quit-Rent 1 Bushel. Newcastle Records, No. 11. Fol. 24. Note— Another Entry of the last Grant in the New York Records, No 3. Fol. 49. Jan. 15. xVnother Grant from Governor Andros in New York, and under- the Seal of that Province, to Henry Vanderburch of another Town-Lot, below the Fort, in the Town of Newcastle, Quit-Rent 1 Bushel, Newcastle Records, No. 11. Fol. 25. 296 PENNSYLVANIA AND MARYLAND Jan. 15. Another Grant from Governor Andros in New York, and under the Seal of that Province, to John Scott, of a Tract of Land on the West side of Delaware River, at the first dividing of St. George's Creek, called Maidstone, containing 400 Acres, as by Cantwell's Survey, Quit-Rent 4 Bushels. Newcastle Records, No. 11. Foh 26. Note — Another Entry of the last Grant, in New York Re- cords, No. 3. Fol. 51. Jan. 15. Another Grant from Governor Andros, dated at New York, and under the Seal of that Province, to John Edmondson, of Land, which had been formerly granted by Colonel Nicholls, the Duke's Governor, upon 1 Aug. 1668, to Thomas Woolaston and others, being in White Clay Kill, near unto Christiana Kill, in Delaware River, containing 800 Acres of Wood-Land, besides Valley, on which former Grant, a Quit-Rent of 8 Bushels was reserved, which being now by mesne Assignment come to John Edmonson, Governor Andros grants it to him in Fee, reserving the 8 Bushels Quit-Rent. Newcastle Records, No. 11. Fol. 27. Note — This last is quite a new distinct, parcel of Land, the former Grant of it had never before been mentioned in our Evidence. Jan. 15. Another Grant from Governor Andros, dated at New York, and under the Seal of that Province, unto Olie Franson and two others, of a Tract of Land on the Westward side of Dela- ware River, about two Miles above Verdrietigys Hook, con- taining 700 Acres as by Cantwell's Survey, 300 Acres of which were before granted to them by Patent of 7 April 1673, but the other 400 Acres are new Land, Quit-Rent 7 Bushels. Newcastle Records, No. 11. Fol. 28. Note— An Entry of this last Grant is also in . New York Records, No. 3. Fol. 54. Jan. 15. Another Grant from Governor Andros, dated in New-York, and under the Seal of that Province, to Francis Wittwell of a Parcel of Land on the West side of Delaware River, called Brooshey, on the West side of the South West Branch of Duck Creek, containing 400 Acres as by Cantwell's Survey, Quit Rent 4 Bushels. Kent County Records, No. 14. Fol. 3. Note— Another Entry of the last Grant is also in . New York Records, No. 3. Fol. 52. BOUNDARY QUESTION. 297 Jan. 15. Another Grant from Governor Andros dated in New-York, and under the Seal of that Province, to William Tom in Fee, of a Tract of Land upon the Whorekill in Delaware Bay, being formely the Land of Peter Alricks, near Pagan Creek, contain- ing 132, Acres ,as by Cantwell's Survey, Quit-Rent 1 Bushel. Sussex County Records, No. 17. Fol. 3. Note— Another Entry of the last Grant is also in . New York Records, No. 3. Fol. 54. Jan. 15. Another Grant from Governor Andros, dated in New York, and under the Seal of that Province, unto Simon Patten, of a Tract of Land at the Whorekill, upon the West side of Dela- ware Bay, by Pagans Creek, containing 50 Acres, as by Cant- well's Survey, Quit Rent half a Bushel. Sussex County Records, No. 17. Fol. 4. Jan. 15. Another Grant from Governor Andros, dated in New York, and under the Seal of that Province, to George Young, of a Tract of Land, near unto the Whorekill, in Delaware Bay, called Young's Hope, containing 300 Acres, as by Cantwell's Survey, Quit-Rent 3 Bushels of Wheat. Sussex County Records, No. 17. Fol. 5. Note — Another Entry of the last Grant is in .New York Records, No. 3. Fol. 53. Feb. 21. Governor Andros 's Commission dated in, and under the Seal of, New York, appointing 5 of the Justices of the Court at Newcastle, and 5 of the Justices of Upland Court, and Delaware River, a Court of Oyer and Terminer, for Trial of Sybrant Johnson and his Accomplices, for a Rape which had been com- mitted, on Ann Jurians, within the Jurisdiction of the Court at Newcastle. New York Records, No. 1. Fol. 86. Same Day or Month. An Entry in the New York Records- of a Grant by Governor Andros, to William Davids, of Land on the Westward side of Delaware Bay, called Roaseberry, a little below the Indian Bridge, containing 300 Acres, as by Survey, Quit-Rent 3 Bushels. New York Records, No. 3. Fol. 8. 1676. Mar. 25. From New- York Records, Three several Grants from Gov- ernor Andros. 1. To Hendrick Coleman and Peter Patcon, of Land, on West-side of Delaware River, and on North-west side of Millcreek, containing 100 Acres as by Survey, Quit-Rent 1 298 PENNSYLVANIA AND MARYLAND Bushel; 2. To Jurian Hartsfielder, of Land on the West side of Delaware River, on the Southwest side of Cohocktincks Creek, containing 350 Acres, Quit-Rent three Bushels and a Half. 3. To Henry Allison, of Land called Tilmouth Haven, on the West side of Delaware Bay, and on the South-side of Fish Creek, containing 400 Acres as by Survey, Quit-Rent four Bushels. New-York Records, No. 3. Fol. 17. Same Bay. From New- York Records, Three 1 more Grants from Governor Andros, 1. To Thomas Williams, of Land on the West side of Delaware Bay, and on North-west side of Baucum Briggs Creek, containing 200 Acres as by Survey, Quit-Rent 2 Bushels. 2. To Robert Tallent, of Land called Poplar-Hill, on the West side of Delaware Bay, and on North side of Hangman's Creek, containing 200 Acres as by Survey, Quit-Rent 2 Bushels. 3. To John Street, of Land called the Chops, on the West siie of Delaware, and at the Head of Hangman's Creek, containing 200 Acres as by Survey, Quit-Rent 2 Bushels. New-York Records, No. 3. Fol. 18. Same Bay. From the Records in Newcastle County. Twelve several Grants, from Governor Andros, dated in, and under the Seal of New- York, recorded at full Length, all granted by virtue of the Duke's Commission to him, and reserving the Quit-Rents to the Duke, viz. 1. To Peter Thomasson in Fee, of lands on the West side of Delaware River, and on White-clay Creek, being a Branch of Christianna Creek, above the Falls thereof, containing 220 Acres, Quit-Rent 2 Bushels. 2. To William Sharpe in Fee, of Land called Canaan, on the West side of Delaware Bay, and on the North side of Duck Creek, contain- ing 500 Acres as by Cantwell 's Survey, Quit- Rent 5 Bushels. 3. To Walraven Johnson de Fox, and another in Fee, of Land on the West side of Delaware River, near the upper End of Bread and Cheese Island, and on the North side of White-clay Creek, containing 570 Acres as by Survey, Quit-Rent 5 Bushels. 4. To John Nomers in Fee, of Land, on the West-side of Dela- ware River, on both sides of White clay Creek, being a Branch of Christiana Creek, containing 340 Acres as by Survey, Quit Rent 3 Bushels and a Peck. 5. To Edmund Cantwell in Fee, of Land on the West side of Delaware River, nigh the Head of Apoquiminick Creek, containing 800 Acres, 400 of which was granted to William Smiler, and by him for- feited to his Majesty, by the late Governor Lovelace granted to the said Cantwell, and the other 400 laid out for the said Cant- well, Quit-Rent reserved to the Duke 8 Bushels. 6. To Cas- BOUNDARY QUESTION. 299 parus Hariuan in Fee of Land, called Good Neighbourhood, on the West side of Delaware River, and on the North-east side of St. Augustine's Creek, containing 330 Acres, as by Sur- vey, Quit-Rent 3 Bushels. 7. To Edmund Cantwell in Pee, of Land on West side of Delaware Bay in Apoquiniminick Creek, beginning from the Green Hook to Sassafrax-Kill, containing 900 Acres, which had on 17 June 1671, been granted by Gov- ernor Lovelace to Lucas Abell and others, and since purchased by Cantwell, Quit-Rent 9 Bushels. 8. To John Mall in Fee, of a Lot in Newcastle Town, Quit-Rent 1 Bushel. 9. To Robert Tallent in Fee of Land called Poplar-Hill, on the West side of Delaware Bay, and on North side of Hangman's Creek, con- taining 200 Acres as by Survey, Quit-Rent 2 Bushels. 10. To John Street in Fee, of Land called the Chops, on the West side of Delaware Bay, on the Head of Hangman's Creek, contain- ing 200 Acres as by Survey, Quit-Rent 2 Bushels. 11. To John Barker in Fee, of Land called Calton, on the West side of Dela- ware River, and on the North side of Blackbirds Creek, con- taining 220 Acres as by Survey. Quit-Rent 2 Bushels. And 12. To Samuel Land in Fee, of a Lot in the Town of Newcastle in Delaware River, in Warmoes Street, bounded upon the Min- quaes Street, Quit-Rent 1 Bushel. Records from Newcastle County, No. 11. Foliis 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40. Note — As the 12 foregoing Grants are taken only from New- castle Records (tho' long before Mr. Penn had any thing to do with that Country) so it may be necessary to men- tion, that we have short Entries of seven of these Grants from New York Records also, viz. The first of the last- mentioned 12 Grants is in New-York Records, No 3. Fol. 27; and the second, in the same Book ,Fol. 22; the third is in the same Book, Fol. 31 ; the fourth is in the same Book, Fol. 30; the sixth is in the same Book, Fol, 60; i the eleventh is in the same Book, Fol. 61; and the twelfth is in the same New York Book of Records, No. 3. Fol .31. Same Day. From the Records in Kent County, Two more Grants, from Governor Andros, dated in, and under the Seal, of New York, recorded at full Length, and both granted by Virtue of the Duke's Commission to him, and reserving the Quit Rents to the Duke, viz. 1. To Thomas Williams in Fee of Land on the West Side of Delaware Bay, and on North-west side of Beaucom Briggs Creek, containing 200 Acres as by Survey, Quit Rent 2 Bushels. 2. To William Simson, of Land on the West side of Delaware Bay, and on the North side of Little -Creek, contain- 300 PENNSYLVANIA AND MARYLAND ing 400 Acres, as by Cantwell's Survey, Quit-Rent 4 Bushels. Records from Kent County, No. 14. Fol. 4 & 5. Note — The last of these Grants is also entered in . New- York Records, No. 3. Fol. 23. 1676. March 25. From the Records in Sussex County, one more Grant, from Governor Andros, dated in, and under the Seal of New York, recorded at full Length, granted by Virtue of the Duke's Coin- mission to him, unto Abraham Clement, and another in Fee. of Land, upon the Whorekill, near Delaware Bay, by Pot- ters Creek, and Pagans Creek, containing 600 Acres, as by Cantwell's Survey. Quit Rent, six Bushels reserved to the Duke. Records from Sussex County, No. 17. Fol. 6. May 25. Governor Andros' Order, dated in New York, being an In- junction granted' by him, upon a Petition in Equity presented to him ; to stay Execution, upon a Judgment obtained at Law, in the Courts at Newcastle, by William Tom against Hendrick Janson. The Governor orders, that, on Janson's giving Se- curity to make good his Complaint, Execution be suspended, and that all the Proceedings, Writings, and Proofs, be trans- mitted to New York, for a final Determination in Equity. New York Records, No. 1. Fol. 87. June 23. Grant from Governor Andros in New York, to William Stevens, of Land called York, on the West Side of Delaware Bay. above Little Creek, containing 600 Acres, as by Cantwell's Survey. Quit Rent, six Bushels. New York Records, No. 3. Fol. 19. June 24. Two more Grants from Governor Andros, 1. To Edward Southeran, of Land called St. Giles's, on the West Side of Delaware Bay, West from the Whorekill, about a Mile from Pagans Creek, containing 196 Acres, as by Survey. Quit Rent, two Bushels. 2. To William Arundel, of Land on the West Side of Delaware Bay, about three Miles South West from the Whorekills, in the Woods, containing 304 Acres, as by Sur- vey. Quit Rent, three Bushels. New York Records, No. 3. Fol. 29. Note — The first of those two last Grants is entered, at full Length, in the Records from Sussex County, No. 17. Fol. 7. June 30. Govei-nor Andros' s Grant to Edward Bodell, of Land on the West Side of Delaware Bay, in the Woods, South South East BOUNDARY QUESTION. 301 from the Whorekill, about three Miles, near to Green Branch, containing 300 Acres of Land, as by Survey. Quit Rent, three Bushels. New York Records, No. 3. Fol. 29. July 15. Governor Andros's Grant to Juhn Moll, for Land called the Exchange, on the West Side of Delaware River, between it, and the great Dragon Swamp, laid out for 1000 Acres, 600 whereof were formerly granted by Patent to William Currer. and another, whose Right Moll is invested with, and the other 400 are new Land. Quit Rent, 10 Bushels. New York Records, No. 1. Fol. 88. July 26. Prom New York Records, Minutes of the Governor and Council, signed by Governor Andros, on the Petitions of Lau- rence Caroli of Delaware, to the Governor, one concerning a Mare, the other concerning selling strong Liquors to the In- dians, in both which Matters Caroli was cast at the Court of Newcastle, and appealed hither for Relief; Ordered, that the Petitions, Proceedings, Judgment of Court, and several Attesta- tions, delivered in here, be all transmitted to the Court at Newcastle, who are to return them back, with their Answer, to the Governor, and in the mean time, that Execution be stopt. Upon the Petition o fPeter Gronendyke of the Whorekill, com- plaining of wrong done him by the Court at the Whorekill, in a Suit between him and Smith for some Tobacco, where the Petitioner was cast, and the President of the Court, and six of seven of the Jury, acknowledged their Proceedings erroneous, and desired their Verdict might be annulled, and yet the Presi- dent gave out afterwards Execution against the Petitioner; it is ordered, on the Petitioner's giving Security, that the Presi- dent of the Court, some of the Jury, and the Prosecutor, shall all make their personal Appearance at the next General Court of Assize, to be held in this City, in October next, to answer in this Behalf. Another Petition of Helmanus Wiltbank, re- ferred to the Court at Whorekill to take Order in, with all just Favour to the Petitioner according to Law, and make Report to the Governor. New York Records, No. 1. Fol. 88. July 28. Minutes of the Governor and Council, from New York Records, Resolution to write to Captain Cantwell at Delaware, to en- deavour to make up a Contest which the Susquehanno Indians had with Maryland, and to acquaint the Governor of Maryland thereof. Also, upon a Petition of the Widow of Hans Block of Newcastle, that of late the Commons or Woods have been 302 PENNSYLVANIA AND MARYLAND enclosed by a Fence towards her Land, so that she is debarred of the Liberty she many Years heretofore bad, of commoning her Cattie, ordered, that there shall be a convenient Out-drift for her Cattle. New York Records, No. 1. Fol. 89. Aug. 10. The Governor's Pass, dated in New York, for John Turcoat, a Frenchman belonging to this Government, with four or five of his Countrymen, to pass towards Delaware River, or Bay, and the South Parts thereabouts, being intended to hunt that way, and to retui-n again. New York Records, No. 1. Fol. 89. Aug. 11. From the New York Records, Minutes of Council to check Captain Cantwell fur raising so rash an Alarm there, but nevertheless to enquire the Meaning of the Susquehannos com- ing in. New York Records, No. 1. Fol. 89. Sept. 15. From the New York Records, Minutes of Council, on a Com- plaint made by Captain Hans Jurienson, that Captain Edmund Cantwell abused and struck him in his own House; upon Ex- amination and Hearing of both Parties, ordered, that Captain Cantwell shall pay 200 Guilders Fine to the King, and both Parties to lay by all Animosities for the future, but it does not clearly express where this Assault was. - New York Records, No. 1. Fol. 90. Same Day. A Grant from Governor Andros to Walter Dickinson, of two Parcels of Land, each of 400 Acres, on the West Side of Dela- ware Bay, and on the North East Side of St. Jones Creek, being about a Mile from Murder Creek, or above Murder Creek. Quit Rent, eight Bushels. New York Records, No. it Fol. 90. Sept. 23. Three several Commissions, granted by Governor Andros, all dated in New York. 1. To Captain John Collier, to ba Sub- collector of all his Majesty's Customs of Newcastle in Delaware, and Receiver of the Quit Rents, or other his Royal Highness's Revenue there, together with the River and Bay, wherein he is to act pursuant to Law, and his Royal Highness's Orders for this Government, and to observe such Directions as shall be received from Governor Andros. 2. In his Majesty's Name appointing six Persons to be Justices of the Peace in the Juris- diction of Delaware River, and Dependencies, any three of them to be a Court of Judicature, for one Year. 3. And in his Majesty's Name appointing six Persons to be Justices of Peace in the Jurisdiction of Newcastle, and Dependencies, any three BOUNDARY QUESTION. 303 of them to be a Court of Judicature, for one Year. New York Records, No. 1. Fol. 91. Same Day. Two more Commissions from Governor Andros, dated in New York. 1. Whereby he, in Virtue of the Duke's Authority, ap- points Ephraim Hermans to be Clerk of the Court of Newcastle in Delaware, and also of the Court of Upland in the River. 2. He also, in Virtue of the Duke's Authority, appoints Captain John Collier to be Commander in Delaware River and Bay, to take Care that the Militia, in the several Plaees, be well armed, duly exercised, and kept in good Discipline, and the Officers and Soldiers are required to obey you as their Commander, and you are to observe such Orders as you shall receive from me, according to the Rules and Discipline of War. New York Records, No. 1. Fol. 92. Note — This last Commission to Captain Collier is recorded in Records from Newcastle County, No. 11. Fol. 41. And the former to Hermans is recorded in Newcastle Records, No. 11. Fol. 42. Same Day. Governor Andros's Instructions to Captain John Collier, dated in New York, to go to Maryland, either from the Whore- kill, or from Delaware, about making up a Difference which Maryland had with the Susquehannah Indians; then to return to Newcastle. Instruction 4. To prevent all Interlopers, or ir- regular Traders, contrary to Law, and the Privileges, and In- habitants of this City and Newcastle. Instruction 5. To keep due Accounts of all Things belonging to the Customs, as also of all other publick Revenues in the River and Bay, and return an Account thereof every three Months. New York Records, No. 1. Fol. 92. Sept. 25. Governor Andros's Letter to the Deputy Governor of Mary- land, advising him to a Friendship with the Susquehanno In- dians. New York Records, No. 1. Fol. 93. Same Day. Governor Andros's special Warrant against Major Fenwick, dated in New York, but directed to Captain Edmund Cantwell, Sheriff of Delaware, to execute; recites, that Major John Fen- wick, now living at the East Side of Delaware River, pretends to be Proprietor of that Side, [viz. in New Jersey] and has acted accordingly, granting Lands, dispossessing Persons, selling their Lands, arrogating Power of Judicature, and giving out Licences for distilling, contrary to the Order settled 304 PENNSYLVANIA AND MARYLAND in the River, whereby he has inveigled some Persons from other Parts, and distracts the Minds of the Inhabitants throughout the whole River and Bay. not having any lawful Power or Authority ; you are therefore to repair over the River to the said Fenwick, and all other Places on that Side, to inform yourself of the Truth of the said Particulars, and to forewarn any such of the Danger and Premunire they incur; and, if Fenwick has so acted, you are to summon him, in his Majesty's Name, to appear, without Delay, to answer the same before me, and my Council, in this Place, at his utmost Peril ; and, in case of Opposition all his Majesty's Subjects are required to aid and assist you/ New York Records, No. 1. Fol. 93. Sept. 25. Governor Andros's Instructions given to the Justices at New- castle, dated in New- York; They recite that, last Year, upon his being at Delaware, the Inhabitants represented that his Predecessor Governor Lovelace began to make a Regulation for the due Administration of Justice, according to the Laws of this Government ; pursuant whereto the present Governor ap- pointed some Magistrates, and made some Rules for their Pro- ceedings the Year ensuing, or till further Order; now, by the Advice of his Council, he makes some Alteration, and they are to remain and be in Force in Form following. 1. That the Book of Laws, established by the Duke, and practised in New- York, and Dependence's, be in Force and Practice in this River and Precincts; except the Militia, now ordered to remain in the King, and except such as don't relate to that River, &c. 2. That there be three Courts held, in the several Parts of the River, as formerly, viz. One in Newcastle, one above,at Uplands, and another below at the Whorekills. 3. The Courts to consist of the Justice, three to be a Quorum, and to have Power of a Court of Sessions, and decide all Matters under 20Z. without Ap- peal ; above 20/. and for Crime, extending to Life, Limb or Ban- ishment, to admit Appeal to the Court of Assize. 4. All small Matters, under 51. may be determined by the Court, without a Jury, as also all Matters of Equity. 5. The Court for Newcastle to be held Monthly, those for Uplands and the Whorekill quar- terly, and he names the fixed Days they are to be held on. 6. The Courts may make By-Laws, not repugnant to the Laws of the Government, to be good for a Year, they giving an Account thereof to the Governor by first Opportunity. 7. The Courts to regulate the Court and Officers Fees, but not to exceed the Rates in the Book of Laws. 8. To be a High-Sheriff for the Town of Newcastle, River and Bay, and he to make an Undei'sheriff, to be approved by the Court, and the Sheriff is to act in the Execution BOUNDARY QUESTION. 305 of the Laws, but not as a Justice of Peace or Magistrate. 9. That there be fitting Books provided for the Records, all judicial Proceedings to be fairly entered therein, as also publick Orders from the Governors. 10. That each Court recommend to the Governor, for his Approbation, a fit Person for Clerk, in whose hands the Records are to be kept. 11. That all Writs, War- rants, and Proceedings at Law, shall be in the King's Name, it having been practised in the Government ev*r since the first Writing of the Law-Book, and it being the Duke's special Pleasure and Order. 12. No Rates to be imposed, or Levies made, within the Town of Newcastle, River or Bay, without the Governor's Approbation, and all Accounts of Receipts and Disbursements on Rates, to be sent to the Governor for his Allowance, until which, not to be a sufficient Discharge; Any Person desiring Land may apply to the Court, in whose Bounds it is, who are to sit Monthly, or oftner, which Certificate shall be a sufficient Warrant to the Surveyor to survey it and the Certificate and Surveyor's Return to be sent to New- York, for the Governor's Approbation. Newcastle Records, No. 11. Fol. 42. Note — The above is called Instructions, but is, in effect, some- thing like a Charter. Sept. 27. The Governor's Dedimus, dated in New-York, authorising Captain John Collier and Captain Edmund Cantwell, to give the Oaths to the new Magistrates at Newcastle, and up the River at Delaware, and also at the Whorekill. Newcastle Records, No. 11. Fol. 42. Oct. 10. An Entry in Newcastle Records that this Day the new Jus- tices, and Clerk, were sworn and establish'd in their Places by Captains Collier and Cantwell, and the several new Commis- sions granted by the Governor to Captain Collier, as also to the Justices, with their Instructions, and the Commission to the Clerk being openly read, it was ordered that the same should be recorded; and accordingly they all immediately follow that Entry. Newcastle Records, No. 11. Fol. 42. Oct. 26. Two several Commissions, under Governor Andros's Hand and Seal, dated in New- York. 1. In his Majesty's Name ap pointing five Persons, viz. Helmanus Wiltbank, Edward South- erne, Alexander Molestien, John King, and Paul Mash, Justices of the Peace at the Whoi'ekill and Dependencys, and any thi'ee to be a Court of Judicature. To continue one Year, or till 20— Vol. XV. 306 PENNSYLVANIA AND MARYLAND further Order. 2. By vertue of the King's Letters Patent, and the Commission to the Governor given by the Duke, The Gov- ernor appoints John Avery to be Captain of the Foot Company of the Militia at the Whorekill ; with a short Entry that the like [Commissions] were given to a Lieutenant, and to John Roads Ensign. New-York Records, No. 1. Fol. 94. Nov. 8. The whole Bench of Justices at Newcastle wrote a Letter to the Governor, praying him to send them (as he had promised) the Duke's Law-Book, corrected of all such Laws and Orders as did not concern that River; complaining that some of those who belonged to the Company of Militia of that Town lived three or four Miles distant, and it was inconvenient to them to do Watch in the Fort ; and as this is a Frontier Place, it will be to the Ease of the People, and Reputation of the Province, to have a small Number of Soldiers kept, as in the time of the Governor's Predecessors r or several would rather incline to pay them than watch themselves : They pray the Governor to give them a lesser Seal for the Office : They have no Prison, desii-e the Governor's Order to erect one, and to appoint what Allow- ance Prisoners shall have, and by whom to be paid ; The last Court made an Order to allow 40 Guilders for every Wolf's- Head, to be levied from the Publick, they desire the Governor's Approbation thereof. They desire the Governor's Order to iiri- power them to a raise a Levy for defraying of small publick Charges; They desire the Governor's Order, that Fines imposed by the Court may henceforth, be converted for the publick Charges, in repairing the Fort, building a Prison, &c. Chiefly, they tell the Governor, that in case Sloops and Vessels be, henceforth, permitted to go up and down the River, trading with the People, and getting all the ready and best Pay, as they now do, this Place will, in short time, be deserted and come to nothing, which, then, will make this River as bad as Maryland ; wherefore, they entreat the Governor to prohibit the going up of all Vessels, as it was in his Predecessors time; and that this may be the only Place of Lading, Unloading, and keeping of Stores for all Merchants ; and pray the Governor to order a publick Weigh-house and Store-house to be erected. Newcastle Records, No. 11. Fol. 44. Nov. 20. From the New-York Records, Minutes of the Governor and Council; several Letters about Major John Fenwick s Actings in New-Jersey, on the East-side of Delaware River, by his granting Patents, refusing to obey the Governor's special War rant, &c. , being read ; and it importing the King's Service and BOUNDARY QUESTION. 307 the Good and Quiet of the Inhabitants of those Parts, Resolved that he be sent for, and, if there be occasion, that the Com* mander and Magistrates at Delaware do use Force for seizing and sending him hither ; and as to one Jaquet, who has been dispossest of Land on the East-side of Delaware River by Major Fenwick, that the Court do repossess him thereof and if neeu be the Commander to assist them. New -York Records, No. i. Fol. 95. Nov. 23. Governor Andros's Letter dated from New-York, and directed for the Commander and Court at Newcastle, in answer to theirs of the 8th Instant before stated, wherein he, having taken the Ad- vice of his Councils, sends them Orders to seize Major Fenwick, and to repossess Jaquet as above, and then answers their own De- sires, by telling them he will send them one of the Duke's Law- Books, that the Inhabitants of the Town of Newcastle, and within a Mile thereof, are to keep Watch, but none to be obliged to come to it further : The Proposal about Soldiers to be further considered ; Care will be taken for a publick Seal against next Year; You may cause a Prison to be built in the Fort; For Allowance to Prisoners, you are to be directed by the Law-Book; I confirm the Order about killing Wolves, for the present Year; I grant the Fines to the Court, for this Year, and the two past Years, for publick Uses, and the Sheriff and Re- ceivers to pay the same, and the Court is to send the Governor an Account how tney are disposed of : The Sheriff is to have 5s. in the Pound for collecting the same and other Charges; towards the further defraying of publick Charges, in the Town of Newcastle, as also up the River, and in the Bay, a Levy al- lowed to be made of a Penny in the Pound upon every Man's Estate, to be taxed by indifferent Persons to be appointed by the Court, but an Account to be given hither to the Governor ; The former Orders to be duely observed, as heretofore, and care to be taken that no Vessels go up the River above New- castle to trade; a Weigh-house is allowed in the Town of New- castle, for the which you are, then, to appoint an Officer, to be sworn thereto. Newcastle Records, No. 11. Fol. 46. 1676. Dec. 8. From Newcastle Records, The Orders of the Court at New- castle, consisting of the Commander and Justices ; The Com- mander informing them that he had sent to and been with Major Fenwick, over at his own House, who refused to obey the Governor's special Warrant, and stood upon his De- fence, saying, the Governor of New York had nothing to do with him, and he would obey nothing, but what should come 308 PENNSYLVANIA AND MARYLAND from the King, or the Duke, and threatened any one to take him ; the Court comes to a Resolution that Force be used, and that Fenwick be taken, and sent to York to the Governor. Newcastle Records, No. 11. Fol. 48. Same Day. And accordingly by a Warrant of the same Day, dated at Newcastle in Delaware, and signed by Captain Collier and the Justices, as the Commander, and Court at Newcastle in Dela- ware, they appoint 3 Persons, of which one was the Under - Sheriff, to levy 12 Soldiers out of any the Militia of this River, and repair to Fenwick's House, and to bring him by Force before us to this Town of Newcastle, and to pull down, break, burn or destroy the House for the apprehending of him ; and in case of Resistance to fire upon him, or his, and if Fenwick or others resisting shall be killed, you are hereby discharged and field innocent, as being done in pursuance of the Duke's Lieutenant's Orders, and of us, by the Governor's Order re- commended. Newcastle Records, No. 11. Fol. 49. Decemb. 16. From the New York Records. Governor Andros's Warrant, signed in New York, directed to the Sheriff of New York, com- manding to take into his Custody, and safely keep, in order to a legal Trial, John Fenwick, sent a Prisoner hither from Dela- ware, for presuming to act as a Proprietor and Supreme Magis- trate, without any, and even refractory to, lawful Authority. New York Records, No. 1. Fol. 93. Jan. 2. At a Court held at Newcastle before the Commander and Justices, Four several Families petitioned for Warrants, to take up 250 Acres of Land for each Family, their Petitions are granted, provided they settle according to the Governor's Orders, and the there following Warrants were given to each of the said Persons, directed to Captain Canitwell the Surveyor, to survey, for each Family 250 Acres on the West side of Dela- ware River or Bay, within the Limits of that Court, and to make returns of the said Surveys to the Court, for to be sent to New York, in order that Patents niay be had. Newcastle Records, No. 11, Fol. 50. Feb. 8. The Court at Newcastle write a letter to Governor Andros at New York, making request of many further Powers ; They tell him, Order is given for erecting a Weigh-house and Prison : as to the Watching, by those who live within a mile of the Town, they say that some of those at Swanwick will fall BOUNDARY QUESTION. 309 within the Mile, and must come, when their next door neigh- bors, without the Mile, will be excused, which will breed Dis- content, therefore desire the Governor's further Order therein; As to the Levy of the Penny per Pound which your Honour al- allowed, the People live so distant, and their estates so inconsid- erable, that we can find no way to discover the Value or if discov- ered, to make it valuable to receive ; but if your Honour would allow of a Poll-Levy, as in Virginia and Maryland, it will be easier made and received. Pray remember our former Petitions about Soldiers, the Law Book and Seal ; we send you a copy of the Pines; we desire your Order and Approbation about the following Particulars. 1. That you will impower the Com- mander Captain Collier, or the Court, to prove Wills, and grant Letters of Administration, with the Fees, for the Estates of most People in these Parts are so inconsiderable, that the Charge and Expence of going to your Honour at New York to obtain the same, is much to their Hindrance. Pray tbe Gov- ernor either to appoint a Vendue-Master in the River, or else to impower the Court to do it ; and that the Valley above the Town, which was late Captain John Carr's, and was given by the Governor to the Town for a Common, may be a stinted Common ; that an Order may be set forth in the River and Bay. forbidding all Persons to lend Vessels to any Stranger to go over to the East side of this River, or Servants, without a Ticket from the Magistrates, under a Penalty ; for if this Order be not made, you'll please to consider that when the Alteration of Government cometh on the other side, [Note, the Duke of Y'ork had, before this time, granted New Jersey, which was on the other side, to the Lords Proprietors] we shall not be able to keep any servants on this side ; and lastly to admit of a Gen- eral Court, or Meeting, of all the Justices, as heretofore, if but for making up the Levies, collecting of General Revenues, and other publick and general Affairs ; we are ready to obey your Honour's Orders, and to use all Endeavours for the Ad- vancement of the People over whom your Honour has put us, and are your most humble Subjects and Servants. Newcastle Records, No. 11. Fol. 51. 1676. Same Day or Month. From the New York Records. Two Grants from Governor Andros, 1. To John Woodhus, of Land called Would have more, on West side of Delaware Bay, and on North side of Duck Creek in the middle Branch of the said Creek, contain- ing 400 Acres as by Survey, Quit-Rent 4 Bushels. 2. To Morris Lester of Land on West side of Delaware Bay, and on the North side of Duck Creek in the middle Branch of said Creek. 810 PENNSYLVANIA AND MARYLAND next to Woodhus's, containing 400 Acres, Quit-Rent, four Bushels. New York Records, No. 3. Fol. 47. 1677. Apr. 6. From the New York Records, Minutes of Council in these short Words only, Three Months Liberty given to any Sloop or Vessel to go up the River above Newcastle, to fetch old Debts. New York Records, No. 1. Fol. 96. Same Day. Governor Andros's Letter or Orders, signed by him at New York, and countersigned by Matthias Nicolls Secretary, in Answer to the Proposals from the Court at Newcastle of the 8th of February last; None to watch or ward in the Town or Fort but such as live in or near the Town, unless on Alarms or extraordinary Occasions; Levys to be laid by the Poll as usu- ally; a Law-book shall be sent; the past and next Years Fines granted for publick Charges, so to lessen the Rate ; the several Courts may, at a Sessions, take Proofs and Security* and grant Administration of Wills, but, if above 201. to remit the same here to the Secretary's Office to be recorded : The Court to re- commend one for Vendu Master. The Fees to be 6 per Cent, besides the Cryer, and no other Charges; the Commons to be i"egulated by the Court, till further Order; all Persons in Dela- ware River, or Bay, leaving the Government, to set up their Names, where they live, and in Newcastle, and in this City, according to Custom, in Default thereof, any assisting their Departure, to be liable to the Penalty ; Liberty is granted for the Sloops, &c. , going up the River, as formerly, for this Year's Effects, or former Debts; five Guns, 30 Hoes, and one Anchor of Rum, the Remainder of the Pay for the Land at the Falls, to be forthwith paid the Indians; the Remaining Part of the Land, betwixt the old and new Purchase, as also the Islanu called Peter Alricks, or so much as is not already pur- chased, and the Indians will part with, to be bought of them ; for which Captain Israel Helm is to enquire for the Owners, and if they'll be reasonable to bring them to the Commander and Court at Newcastle for concluding a Bargain thereof. Newcastle Records, No. 11. Fol. 53. May 1. From New York Records, Minutes of Council, on a Letter from Newcastle about Mrs. Block's being debarred of her Out- drift for Cattle, Resolved a convenient Out-drift to be allowed according to Law, as by former Order of Council. New York Records, No. 1. Fol. 96. June 8. From Newcastle Records, at a Meeting of theOominander and BOUNDARY QUESTION. 311 Justices there, they read in Court the Governor's Answer dated the 6th of April, and entered the same, and having deliberated thereon, writ an Answer thereto to the Governor ; As to Watch and Ward, they say none live near the Town but at Swanwike, and if they are exempted, most Part of the Town will fly thither; therefore intreat the Governor to furnish them with a small Number of Soldiers to watch the Fort; As the Governor has admitted of a Levy by the Poll, we find that cannot be laid without a General Meeting, or High Court, of all the Justices once a Year, we desire therefore, as we did before, that the Governor will take it into Consideration, and that such Meeting cr General Court may begin in September next; For Treasurer we appoint John Moll, and desire the Gov- ernor to nominate the Treasurer's Fees: Pray don't forget the Lawbook, there is great Occasion for the same; we thank the Governor for the gracious Act of granting the Fines for lessening the Levy, but it will be difficult to collect, unless the Governor sends Soldiers to assist the Sheriff in the execution thereof; As to Letters of Administration we'll follow the Gov- ernor's Instructions. We nominate Ephraim Herman for Vendu Master, but it would be convenient to raise the Sallary to above 6 per Cent. As to Persons departing without a Pass, we shall endeavour to observe the Governor's Order; as to the Liberty for Sloops to go up the River, to receive former Debts, we suppose they will never be without that Pretence. Newcastle Records, No. 11. Fol. 54. June 23. From New York Records, An Order signed by the Governor at New-York, that Weights, &c. should be according tu former Custom and Practice, unless otherwise determined by Law published. New York Records, No. 1. Fol. 96. July 6. An Entry in the New York Records, that, upon an Order of Court at the Whorekill. in the Case of William Hamilton, concerning Weights, referred to the Governor, the there follow- ing, (but here foregoing) Order was made. New Y"ork Records, No. 1. Fol. 96. July 27. From New York Records, several Judicial Acts of the Counc*), Mrs. Block claims a Way for Out-drift of her Cattle, through a Piece of Ground near Newcastle in Delaware, now in Tenure of Cantwell and de Haes, for which he alledges Custom for above 10 Years; Hayes answers, whilst it lay unimproved an Out-drift was suffered, but it now being in Fence, desires to enjoy the Benefit of his Grant; and Mrs. Block having nothing 312 PENNSYLVANIA AND MARYLAND to produce to shew her Right, Ordered that the Case be referred to be beard and determined at the next Court at Newcastle, reserving Liberty of Appeal according to Law ; Also in the Case between Walter Wharton and Edmund Cantwell, Ordered that Wharton give Security to make good his Allegation, and Cant- well to answer his Proceedings and produce his Authority. New York Records, No. 1. Fol. 96. . July 28. The Governor's Order signed in New York, upon Request of Hans Peterson, concerning several Judgments of the Courts of Newcastle and Upland in Delaware, in a Case between Peterson and Carolus about a Mare, the Jurys brought in several Ver- dicts, and the Court gave different Judgments, and it not ap- pearing by any Testimony what Mare was in Difference, I order that the Executions in the said Matter ba suspended, and a full Account of all said Proceeding, in botb Courts, be sent to me; and this Order is accordingly directed to the Courts of Newcastle and Upland, and all Officers in Delaware whom it may Concern. New York Records, No. 1. Fol 96. July 28, Governor Andros from New York, writes a Letter to Captain John Collier Commander at Delaware, that he finds the Com- mander goes to, and sits as Judge in Courts; orders him to forbear doing so, to act according to his known Authority, and in no Case to go to Court. New York Records, No. 1. Pol. 96. Aug. 13. From New York Records, four several Warrants signed by the Governor there, by Vertue ot Authority derived to him under the Duke, appointing 1. Captain Christopher Billop to be Sub-Collector Of the Customs of Delaware River, to observe the Acts of Trade, make Seisures, &c. and to observe such Orders as he shall receive from the Chief Collector, or principal Officers of the Customs here, and Superiors. Newcastle to be the only Port for all Entries and Clearings. 2. Ephraim Herman to be Clerk of the Permits, Entrys, and Clearings for all Duties of. Customs in Delaware River, and to receive the King's or Duke's thirds of any Forfeitures. 3. Requiring all Persons that have, or claim any Land in Delaware River and Bay, without Delay to make a due Return to the Clerk of the Court in whose Juris- diction it lies, and the said Courts to make a Return of the whole to the Governor, that those wanting Grants or Patents, may have them dispatched and sent; this to be published in the several Courts, which are to take care therein, and the Sur- veyor also to take Notice and see it be observed. 4. Appoint- BOUNDARY QUESTION. 313 ing Ephraim Herman Receiver of the Quit-Rents in Delaware River, in the Jurisdiction of Newcastle, and Upland Courts, and to keep exact Accounts, to be sent here by the 1st of May, made up to 25 March before. New York Records, No. 1. Fol. 97. Aug. 13. Three of the above Warrants and Oi-ders, viz. for Herman to be Clerk of the Permits, for Herman to be Receiver of the Quit- Rents, and for Persons to come in for Patents for their Lands, are also entered in. Records trom Newcastle, No. 11. Fol. 56. Aug. 13-14. Two more Warrants for Commissions from the Governor of New York, by the first he appoints a new Commfnder, viz. Cap- tain Christopher Billop to be Commander in Delaware River and Bay, to take care that the Militia, in the several Places, be well armed, duely exercised and kept in good Discipline. By the 2d he appoints Walter Wharton to be Surveyor of Lands in Delaware Bay and River, and appoints what Fees he shall take. New York Records, No. 1. Fol. 98. Aug. 14. The Commission to Captain Billop to be Commander is also in Newcastle Records, No. 11. Fol. 55. Aug. 14. And the Commission to Wharton to be Surveyor is in New- castle Records, No. 11. Fol. 60. and— Kent Records, No. 14. Fol. 6. Aug. 14. Another Order from the Governor dated in New York, upon a Complaint which had been made to him, not to hinder the Owners of a Mill, standing- on a Creek, in Christiana Kill, in Delaware River, but that they shall have free Liberty, to cut Wood for Reparation of said Kill, upon any Land, not in Fence, according to Law. New York Records, No. 1. Fol. 98. Same Bap. Governor Andros writes a Letter to the Justices of the Court at Newcastle, acquainting them of the Change of the Comman- der, and the other Officers which hethe Governor had appointed, and will fill up their Court at the usual Time next Month, and then send them the Law-Book. As to penal Bonds, or such like Cases of Equity, you may judge thereof according to Equity ; finds no need of a General or High Court in the River ; directs them to take Care and fitting Orders for Ordinarys, that they be fit Persons, and duely licensed, and that none else be admitted to retail. New York Records, No. 1. Fol. 98. 314 PENNSYLVANIA AND MARYLAND Same Day. That Letter, as entered also in Newcastle Records, No. 11. Fol. 57. Sept. 4. A Court held, before the Justices in the Court of Newcastle, when they read the several Commissions and Orders from the Governor of the 13th and 14th past, and entered then ; and as to his Order, that Persons should come in for their Patents, they call it a Standing Order, and make an Entry that it was published in Court, and that a true Copy thereof, in English and Dutch, was fixed up at the Fort Gate in Newcastle. Newcastle Records, No. 11. Fol. 55, 56. Sept. 5. From the Newcastle Records, au Order made upon the Peti- tion of John Edmunds to have a Patent for 800 Acres of Land, formely granted him in 1673, but not settled in time, by Reason of the Dutch coining in, but he afterwards set down upon them again, with Captain Cantwell's Leave, and has ever since been in Possession, but some other Persons afterwards surreptitiously got a Grant of it, who are since dead, without Heirs, and therefore prays a Re-suryey. The Court orders a Re-survey, and that the Petitioner do apply to the Governor to obtain a Patent, and to desire that the former Patent may be disannulled upon Record. Also the Court, according to the Governor's Order, appoint Ephraim Herman Vendu Master, and to receive the Fees by the Governor allowed. Also the Court appointed Walter Rowels Constable for one Year; his Limits or Bounds to be from the South side of St. George's Creek, to Boompties Hook, including Apoquemenen, Blackbird Creek, and all between the said St. George's and Boompties Hook aforesaid. Newcastle Records, No. 11. Fol. 58. 1677. Sept. 6. John Moll (who appears at Fol. 55 to be the first named of the Justices ) signs a Warrant to Walter Rowles, Constable of Apoquenemen, to take a List of all the Tytables within his Bounds, and to bring it to the next Court to be held in New- castle. Newcastle Records, No. 11. Fol. 58. Sept, 23. Two more Commissions from Governor Andros dated in New- York; the first appointing seven Persons Justices of the Peace for the Jurisdiction of Newcastle and Dependencys, and three or more of 'em to be a Court of Judicature, for one Year, or till further Order; and the second authorising Captain Billop the Commander, to administer the Oaths to those Justices. New York Records, No. 1. Fol. 99. BOUNDARY QUESTION. 315 The same Commissions entered in Newcastle Records, No. 11. Fol. 61. Sept. 29. From New York Records, A short Entry of a Grant from the Governor to John Stevens for 1200 Acres of Land, which had been certified by the Court at the Whorekill, in a Creek called Little Creek, near xmto St. John's Creek, lying on the West side of Delaware Bay, and on the North side of the said Creek, near Duck Creek, and bounded partly upon Land formerly laid out to him. New York Records, No. 3. Fol. 65. Same Day. From Newcastle Records, another Grant, at full length, from Governor Andros, dated at New York, unto Justa Andries, of a House and Lot of Ground at Newcastle in Delaware, near the Old Fort, late belonging to Captain John Carr, as by Pat- ent from the late Governor Lovelace of 1 May 1671, being con- demned by the Court at Newcastle and sold for Carr's Debts, reserving Quit-Rent to the Duke one Bushel. Newcastle Records, No. 11. Fol. 59. Oct. 2. A Court held before the Justices at the Court of Newcastle, where the Governor's Commission to Mr. Wharton to be Sur- veyor, dated 14 Aug. last was read and ordered to be recorded. Newcastle Records, No. 11. Fol. 60. Oct. 6. That Court seems to be continued, and the Dedimus to swear the new Justices, and the new Justices Commission, are entered, and the new Justices were sworn. Newcastle Records, No. 11. Fol. 61. Oct. 9. A Bill of Sale from Captain Christopher Billop, to his Brother Joseph Billop, in Fee, of an Estate in England, wherein Cap- tain Billop takes on himself this Title, viz. Commander in Delaware, belonging to the Colony of New York in America under his Royal Highness the Duke of York. With Governor Andros' s Certificate of the 25th of the same October, that the Persons Names who were set down as Witnesses to that Deed, were Magistrates or Officers in Newcastle in Delaware, Mr. John Moll being a Justice of the Peace, and Mr. Edmund Cantwell Sheriff there; And, a Note that that Deed, and some other Writings, were entred at the Request of Mrs. Mary Billop, on 26 Octob. 1677. Also Christopher Billop's Bond (wherein he takes the same Title) of 9 Oct. 1677, to his Brother 316 PENNSYLVANIA AND MARYLAND Joseph Billop in 600Z. penalty, to perform the Covenants in the said Deed of Grift. Newcastle Records, No. 1. Fol. 101. Oct. 10. A Letter from Governor Andros at New York, to the Gov- ernor of Maryland, acquainting him that having receiv'd the Duke's leave to go home this Winter, so as to return in the Spring, he shall sail this Month, and hopes, and doubts not of the Continuance of his good Neighbourhood. New York Re- cords, No. 1. Fol. 99. Oct. 13. The Governor's three Letters, of the like Tenor, to the Judges or Magistrates of the Court at Newcastle on Delaware, to the Justices or Magistrates of the Court at Upland, and to those of the Whorekills, acquainting them of his going home; and he adds, any Appeals to be, to the Court of Assizes, which, or Extraordinaries, may be sent to the Secretary Captain Nicholls here, and, if occasion, to be communicated to the Council. New York Records, No. 1. Fol. 100. This Letter is also in Newcastle Records, No. 11. Fol. 62. The same Day. The Governor writes another Letter to Captain Billop, the Commander at Delaware, acquainting him also of his going home, to return next Spring, and recommends Care to him in his Stations, both as to the Militia and Customs, and sends him by the Sloop, a Supply of Musket Bullets. New York Records, No. 1. Fol. 100. Oct. 19. Governor Andros's Letter to Ephraim Herman, Clerk of the Customs at Delaware, wishes he could have had an exact Ac- count ol the Quit Rents of the River and Bay, before his going to England ; Draw out and deliver to the Commander, for the chief Collector, an Account of all Permits and Fees paid by two Ships, there named. New York Records, No. 1. Fol. 102. Nov. 10. Governor Andros's Commission, dated in, and under the Seal, of the Province of New York, wherein, by Virtue of the King's Letters Patent, and the Commission and Authority given to the Governor by the Duke, he the said Governor, in his Majesty's Name, appoints seven persons to be Justices of the Peace at the Whorekill, and the Dependence's, viz. Helmanus Wilbank, Henry Smith, Alexander Molesteyn, Edward Southeran, Paul Mash, John Barkstead, and John Roads, and any four, or more, BOUNDARY QUESTION. 317 to be a Court of Judicature, To be in Force for one Year, or until further Order. New York Records, No. 1. Fol. 102. Now we have no more Acts of Governor Edmund Andros Esq. ; till he gets back to America next Year ; and then he comes back Sir Edmund Andros, Knight. We see he received the Government from the Dutch, but the last Day of October, 1674. and we have Entries, (in the New York Records) of many more Grants of Lands made by the Governor Edmund Andros, Esq ; but without any Dates to them ; they must of Necessity, there- fore, have been dated between October, 1674, and Nov. 1677, and so here they follow, in this Place, it not being our Fault that the Records, in the King's Province of New York, are no better entered up. Note — All these Lands that follow are expressly said to be on the West Side of Delaware River, or Bay, and are all con- tained in New York Records, No. 3. but the particular Folios of that Book are marked, against each single Grant. To Peter Dalboe, 300 Acres on the East Side of Schuilkill, Quit Rent, three Bushels. Fol. 32. To Laurentius Carolus, 350 Acres near Crum Kill, Quit Rent, three Bushels and an half. Fol. 25. To Charles Jansen and others, 1,000 Acres in Naaman's Creek, Quit Rent, 10 Bushels. Fol. 58. To Henry Barker, a Town Lot below the Fort at Newcastle. Fol. 54. To William Currer and another, 600 Acres in St. George's Neck, North Side of Dragons Swamp, Quit Rent, six Bushels. Fol. 51. To John Pitt, 500 Acres in St. George's Neck, Quit Rent, five Bushels, Fol. 52. To Evan Salisbury, 300 Acres in St. George's Neck, Quit Rent, three Bushels. Fol 49. To George Axton, 200 Acres South Side of St. George's Creek, Quit Rent, two Bmshels. Fol. 24. To William Grant, 400 Acres on South Side of main branch of St. George's Creek, Quit Rent, four Bushels. Fol. 24. To William Harriot, 100 Acres, on South Side of St. George's Creek, Quit Rent, one Bushel. Fol. 34. To Richard Scaggs, 300 Acres, on South East Side of South West Branch of St. George's Creek, Quit Rent, three Bushels. Fol. 31. To Abraham Enloes, 170 Acres on North Side of St. Augus- tine's Creek, Quit Rent, one Bushel and half. Fol. 59. To Peter Alricks, 560 Acres, on South East Side of St. Augus- tine's Creek, Quit Rent, five Bushels and half. Fol. 59. To Brian Omella, 200 Acres, on North Side of Drawyers Creek, Quit Rent, two Bushels. Fol. 48. 318 PENNSYLVANIA AND MARYLAND To Ditto, 200 Acres, on South Side of Drawyers Creek, Quit Rent, two Bushels. Fol. 57. To Maurice Daniel, 190 Acres, on North West Side of Apo- quiniminick Creek, Quit Rent, two Bushels. Fol. 60. To Edward Swandall, 200 Acres, on North West Side of Black- bird Creek, Quit Rent, two Bushels. Fol. 50. To Robert Tallent, 200 Acres, on South East of Blackbird Creek, Quit Rent, two Bushels. Fol. 51. To Thomas Bromall, 300 Acres, on South East of Blackbird Creek, Quit Rent, three Bushels. Fol. 58. To Thomas Coks, 300 Acres, on South East of Blackbird Creek, Quit Rent, three Bushels. Fol. 56. To John Woodas, 400 Acres, on South East of Blackbird Creek, Quit Rent, four Bushels. Fol. 57. To William Ford, 800 Acres, on North Side of Duck Creek, Quit Rent, eight Bushels. Fol. 22. To John Denn, 200 Acres, on North Side of Duck Creek, Quit Rent, two Bushels. Fol. 27. To John Morgan, 300 Acres, on North Side of Duck Creek, Quit Rent, three Bushels. Fol. 22. To Francis Whitwell, 400 Acres, on North East Side of Duck Creek, Quit Rent, four Bushels. Fol. 48. To Stephen Durdene, 400 Acres, on North East Side of a Branch of Duck Creek, called Middle Branch, Quit Rent, four Bushels. Fol. 56. To Nicholas Bartlett, 400 Acres, on North East Side of Duck Creek, Quit Rent, four Bushels. Fol. 52. To Henry Bowen, 400 Acres, on South Side of Duck Creek, Quit Rent, four Bushels. Fol. 56. To Herbert Craft, 300 Acres, on South Side of Duck Creek, Quit Rent, three Bushels. Fol. 20. To Edward Man, 500 Acres, on South Side of Duck Creek, Quit Rent, Ave Bushels. Fol. 34. To Oliver Melington and another, 400 Acres, on South Side of Duck Creek, Quit Rent, four Bushels. Fol. 57. To Henry Palmer, 400 Aci'es, on South Side of Duck Creek, Quit Rent, four Bushels. Fol. 48. To Robert Dickes, 200 Acres, on North Side of a Branch above Little Creek, Quit Rent, two Bushels. FoL 21. To Peter Perry, 200 Acres, on North Side of a Branch of Little Creek, Quit Rent, two Bushels. Fol. 21. To William Willoughby, 200 Acres above Little Creek, Quit Rent, two Bushels. Fol. 23. To John Webb, 300 Acres, on South Side of Little Creek, Quit Rent, three Bushels. Fol. 23. To John Autrey, 300 Acres, in St. John's Creek. Fol. 68. BOUNDARY QUESTION. 319 To Daniel "Whitley, 300 Acres, at the Head of St. John's Creek. Fol. 68. To Thomas Philips, 600 Acres, on North Side of St. Jones Creek, Quit Rent, six Bushels. Fol. 21. To Peter Bawcom, 200 Acres, on South Side of St. Jones Creek, near Murder Creek, Quit Rent, two Bushels. Fol. 28. To Robert Frances, 400 Acres, on South West Side of St. Jones Creek, Quit Rent, four Bushels. Fol. 21. To Frances Neales, 400 Acres, on South West Side of St. Jones Creek, Quit Rent, four Bushels. Fol. 8. To Henry Stevenson and another, 600 Acres, on North Side of Murder Creek, Quit Rent, six Bushels. Fol. 28. To James Peddy, 600 Acres, in Maspillin Creek, and on North Side of it. Fol. 41. To Thomas Davis Taylor, 500 Acres, East Side of Maspillin Creek. Fol. 42. To John Field, 300 Acres, in Maspillin Creek. Fol. 44. To Richard Hill, 1,000 Acres, on Mispillin Creek. Fol. 39. To Josias Cowdery, 700 Acres, on North Side of Cedar Creek. Fol. 65. To Robert Hart, 600 Acres, on North-Side of Cedar Creek, Quit Rent, six Bushels. Fol. 33. To Robert Hart Jun., 500 Acres, on Ce4ar Creek. Fol. 38. To Thomas Davis, 300 Acres, in Cedar Creek. Fol. 39. To Edward Forloung, 400 Acres, in Cedar Creek. Fol. 40. To John Otten, 300 Acres, in Cedar Creek. Fol. 40. To John Ashman and another, 300 Acres, on South Side of Cedar Creek, Quit Rent, three Bushels. Fol. 49. To Dittos, 400 Acres, on South Side of Cedar Creek, Quit Rent, four Bushels. Fol. 50. To Alexander Draper and another, 996 Acres, on South Side of Cedar Creek, Quit Rent, ten Bushels. Fol. 64. To John Deprey, 1,000 Acres, near Slaughter Creek. Fol 37. To James Lillie, 300 Acres, on a Branch of Slaughter Creek. Fol. 43. To Randal Revel, 900 Acres, on Slaughter Creek, near to the Whorekili, Quit Rent, five Bushels. Fol. 20. To William Prentis, 400 Acres, in the Woods, five Miles South West from the Whorekili Town. Fol. 42. To William True, 300 Acres, in the Woods, five Miles Distance, South West from the Whorekili. Fol. 45. Jacob Seth, 500 Acres, South West from the Whorekili Town, Distance about four Miles. Fol. 44. To Henry Smith, 3,000 Acres, called Prime Hook, near Slaughters Creek, by Prime Creek, Quit Rent, 30 Bushels. Fol. 20. 320 PENNSYLVANIA AND MARYLAND To John Cornells, 300 Acres, in Marches Creek, to the North of the Whorekill Town. Fol. 36. To John Kirk, 800 Acres, in the Woods, South West from the Whorekill Town, about five Miles, and to a Branch prcoeed- ing from Rehobuth Bay. Fol. 42. To Daniel Brown, 400 Acres, upon Pagans Creek, near the Whorekill, Quit Rent, four Bushels. Fol. 46. To Hermanus Woolbank, 134 Acres, upon the Whorekill and Pagans Creek, Quit Rent, one Bushel and a Quarter. Fol. 55. To Edward Southeran, 400 Acres, on Pagans Creek, Quit Rent, four Bushels. Fol. 53. To John Kephaven, 69 Acres, near Pagans Creek, upon the Whorekill, Quit Rent, Half a Bushel. Fol. 55. To Alexander Molestedy, 611 Acres, upon the Whorekill, near Pagans Creek, Quit Rent, six Bushels. Fol. 46. To William Tom, 132 Acres, by Pagans Creek and the Whore- kill, Quit Rent, one Bushel and a Quarter. Fol. 54. To Ditto, 80 Acres, upon the Whorekill, near Pagans Creek, Quit Rent, three Pecks. Fol. 55. To Cornelius Verhoofe, 112 Acres, at Mouth of the Whore- kill Creek. Fol. 37. To Henry Stretcher, 600 Acres, upon the Whorekill, by Kick- out, Quit Rent, six Bushels. Fol. 32. To John Lining, 300 Acres, in the Woods, to the Eastward of the Whorekill Town. Fol. 40. To William Warren. 300 Acres, at Potoks Creek, on East Side of Whorekill Town. Fol. 38. To Abraham Clement, 400 Acres, on Gimbals Neck, in Mill Creek. Fol. 35. To Walter Lewis, 300 Acres in Cimbals Neck, on North Side of a Small Creek. Fol. 35. To Henry Stretcher, 400 Acres, in Cimbals Neck, joining to Mill Creek. Fol. 41. To John Allward, 400 Acres, on Cambals Neck, joining to Mill Creek. Fol. 41. To James Welles, 400 Acres, at Loues Creek. Fol. 43. To John Johnson, 400 Acres, on Rehobuth Bay upon Loues Creek. Fol. 45. To Robert Brasey, 800 Acres, in the Woods, near Rehobuth Bay. Fol. 39. To Robert Brasey jun. , 300 Acres upon Rehoboth Bay, Dis- tance from the Whorekill about ten Miles, bounded by Richard Brasey. Fol. 65. To Richard Brasey, 300 Acres, on Middle Creek. Fol. 35. To William Buston. 1.000 Acres, on South Side of Rehoboth Bay, and on North Side of the Great River, and by Middle Creek. Fol. 38. BOUNDARY QUESTION. 321 To Henry Peddington 400 Acres, on Rehoboth Creek, Quit Rent, four Bushels. Fol. 53. To Hubert Francis. Land, in St. Johnsons Creek. Fol. 44. To John Collison, 300 Acres, on North Side of Great Creek, Quit Rent, three Bushels. Fol. 63. To Thomas Gilley and another, 450 Acres, on North Side of Great Creek, Quit Rent, four Bushels and Half. Fol. 64. To Charles Barnard, 300 Acres, on the Great Creek. Quit Rent, three Bushels. Fol. 63. To John Briggs, 400 Acres on South Side of Bawcom Briggs Creek. Quit Rent, four Bushels. Fol. 24. To William Froth, 200 Acres, on South West of Bawcom Briggs Creek, Quit Rent, two Bushels. Fol. 50. To Samuel Barbary, 200 Acres, on South Side of Bawcom Briggs Creek, Quit Rent, two Bushels. Fol. 46. To Cornlius Verhoofe, 1218 Acres, on North Side of Mispann Creek, by Indian Bridge Creek. Fol. 36. To Samuel Stills, 400 Acres, on North Side of Maspim Creek. Fol. 36. To Christopher Jackson, 300 Acres, on North Side of Mispann Creek. Fol. 45. , To Thomas Gadd, 300 Acres, on a Creek proceeding out of Mispann Creek, Quit Rent, three Bushels. Fol. 64. To Samuel Styles and another. 744 Acres, on North Side of Mispann Creek. Fol. 37. To Peter Cock, 650 Acres, on Quessinawominck Creek, Quit Rent, six Bushels and Half. Fol. 25. To Laurence Cock and others. 1600 Acres, at Cohock sinks Creek, Quit Rent, 16 Bushels. Fol. 26. To Michael Fredericks, 300 Acres, at Sissowokisink Creek, Quit Rent, three Bushels. Fol. 61. To Errick Mullock and others, 950 Acres, at Sissowokisink Creek, Quit Rent, nine Bushels and Half. Fol. 27. To Sanders Molestin, 50 Acres, on Back of his own Land. Fol. 43. To Francis Walker and another, 450 Acres, on the lower Side of Nishambanack Creek, Quit Rent, four Bushels and a Half. Fol. 62. To Peter Peterson and another, 500 Acres, on lower Side of Pimmecpihkahs Creek, Quit Rent, five Bushels. Fol. 26. All the 108 foregoing Grants are shortly entered in the New York Records No. 3. at the Folios before respectively mentioned. 1677, Jan. 1. From the Newcastle Records, A Court being held at New- castle, Captain Billop, the new Commander there, delivers 21— Vol. XV. 322 PENNSYLVANIA AND MARYLAND them a Letter at the Fort belonging- to that Town, being for the publick Service, ought to be repaired by the Inhabitants within that Jurisdiction, and not out of his Royal Highness's Revenues, and desires they'll take care to raise Moneys to re- pair it, and that this his Letter and their Answer to it may be recorded. Newcastle Records, No. 11. Fol. 62. Jan. 2. ' The Court read that Letter, "and gave for Answer, that when the Sheriff brought in his Account of Recaits at Lady-Day, and the Debts already due on the publick Account should be first paid, the Court is willing what should be left should be so employed. Newcastle Records, No. 11. Fol. 62. Jan. 3. Five Petitions presented to the Court, who grant Liberty to four of the Petitioners to take up 200 Acres a-piece, and to the fifth to take up a Town Lot, they ssating, improving, and building, according to the Governor's Orders. Newcastle Records, No. 11. Fol. 63. March 7. An Indenture between Samuel Styles, and Robert Trayley, of the Whorekills, Planters of the Province of New York, of the one Part; and John Shackerley, and Raynier Williams of New York, Merchants, of the other Part. Reciting, that the Duke of York, by his Grant under the Great Seal of the Province of New York, dated 29 Sept. 1677, did grant unto the said Styles and Trayley, a Parcel of Land on the West Side of Delaware Bay, called Styles's Delight, on the North Side of a Creek, called Muspalling Creek, containing 744 Acres; now they, for valuable Consideration, convey the same to Shackerley and Williams, in Fee, To hold, under his Royal Highness, for the Rents and Services in the original Deed receited mentioned to be sealed and delivered in the Presence ot the open Court, and acknowledged at the Court held for the Whorekills, on the 12th of the same: this Deed is said to have been recorded at the Request of Johannes Kypp ; and that the original Deed was brought to St. Jones's Court, being a called Court, held for Johannes Kypp and Raynier WiHiams, Plaintiffs, and Cornelius Verhoofe, Defendant, on 23 April, 1681, confirming [I suppose they meant concerning] said Land. Kent County Records, No. 14. Fol. 15, 16. 1678, May 22. From the Newcastle Records. A copy of Minutes of a Council held in New York, ordering an Express to be sent to the Com- mander and Justices of Newcastle in Delaware to notify to BOUNDARY QUESTION. 323 Major Fen wick, not lb assume the Powers he did, on the East Side of the River, he having therein broke his Parole, and if he refuses, the said Commander and Justices are to order him to go to New York, and if he denies that, then the said Com- mander and Magistrates, together with the Sheriff, are to use Force to seize his Person, and send him to New York. New- castle Records, No. 11. Fol. 64. June 3. An Entry in the Newcastle Records, that in pursuance of the said Order of Council, the Justices from Newcastle writ the there following Letter to Major Fenwick, at New Salem, ac- quainting him what order they had received from the Council of New York, and that he should forbear assuming any power on the East Side of Delaware, and to send them his Answer. New- castle Records, No. 11. Fol. 64. Same Day. An Entry in the Newcastle Records, of Major Fenwick's Let- ter sent back by Thomas Woolston, Under Sheriff, wherein he insists he has Authority to act, by Virtue of the King's Letters Patent, and of the Duke's Grant to John Lord Berkley, and Sir George Carteret, and the Lord Berkley's Deed to the said Major Fenwick, all which had been before produced to the Gov- ernor and Council, at New York ; and that he is not obliged to go to New York, &c. Newcastle Records, No. 11. Fol. 64. June 5. Another Entry in the Newcastle Records, of a Letter signed by the Justices there, and directed to Captain Matthias Nicholls, and the rest of the Council in New York, acquainting them with, and sending them the Letters between them and Fenwick informing, that Fenwick still acts ; and granted, but on the Sat- urday last, a special Warrant for the apprehending one Eldridge and declares, that no Man shall take him alive; no, not if the Governor himself came ; therefore, what you further resolve, if directed to us, we desire may be absolute and sufficient, for he won't be taken without Bloodshed. As to Mr. Toms, deceased, there was an Execution against his Body, but not against the Estate: But, if vour Honours think fit that the whole Estate, real and personal, be sold, we then desire a more positive and absolute Order, and it shall be readily performed by us. New- castle Records, No. 11. Fol. 65. June. 21. Another Entry of a Meeting (afterwards) of the Commander and Justices at Newcastle, at which Meeting they read and en- tered, an Answer, of this Date to the Justices from the Council 324 PENNSYLVANIA AND" MARYLAND of New York, complaining that their letter of the 5th was very little satisfactory to the Council ; they say the Council's former Order about Fenwick was absolute and full, in case of his Re- fusal, so they shall not alter any thing therein, but leave the Justices to answer their Neglect to the Governor, who is dayly expected. Also a great deal about selling Captain Tom's Estate, to pay Debts; and that it's unreasonable Captain Delavall's Judgment should be excluded, because Mr. Tom had in his Will excluded it ; The execution against the Debtor's Body not being thought sufficient to debar the creditor where there was Effects. The Council admires at the court's so sudden giving Judg- ment against the Deceased's Estate for a Stranger, of Maryland, which may defeat others within the Government : Upon your Desire of more particular Orders, the Council think it conveni- ent that one of the Creditors should administer upon Tom's Estate, and that Captain Cantwell (who resigned any Interest for his Son, who was named Tom's Executor) is the fittest Per- son to have it ; who, upon giving Security to administer accord- ing toLaw, and returning a Certificate hereof, may have Letters of Administration from hence. Newcastle Records, No. 11. Fol. 66. July 17. An Entry in Newcastle Records, that the Commander and Justices this Day met at Newcastle, and read the forementioned Letter, and then Captain Billop acquainted them that he had been last Week at Salem, and that then Fenwick was willing to answer the Councils Order at New-York, and that he will surrender himself at New-York; whereupon, it was resolved that, if Fenwick will give under his Hand, by a Letter to the Council, that he will not assume any Government on that side of the River, and that he will, within 20 Days, appear at New- York, then, he be left there: but, incase of Refusal, then, that the Commander and High Sheriff press and take with them so many of the Militia as they think fit, and with them seize Fen- wick, and send him to New-York, without Delay, according to the Order of the Council. Newcastle Records, No. 11. Fol. 67. Same Day. A Letter from the Commander and Justices at Newcastle, to Major Fenwick at Salem, of the Purport of the foregoing Order. Newcastle Records, No. 11. Fol. 67. July 24. Another Entry in Newcastle Records of a Letter from the Court at Newcastle, directed to Captain Matthias Nicolles, and the BOUNDARY QUESTION. 325 rest of the Council, at New-York, acquainting them what they had done as above, against Fenwick, and that, since, the Com- mander and Sheriff have fetched Fenwick to Newcastle, and the Commander intends to send him by Land. As to Tom's Estate, Captain Cantwell offers Security, and intends to go to New-York himself to take out Letters of Administration. As to the Judgment so suddenly given, those of Maryland make no difference, in the like cases, with us, but suppose there will be little left after Captain Delavall's Debt is paid. Newcastle Records, No. 11. Fol. 67. Aug. 4. From the Records in Kent County, A Grant at full Length from Sir Edmund Andros Knight, Lieutenant-Governor under the Duke of York, dated in, and sealed with the Seal of New-York, granting to John Briggs Land laid out by Warrant from the Court of Whorekills on West side of Delaware Bay, about two Miles above St. Jones Creek, bounded partly by Robert Jones, and Walter Wharton, containing 260 Acres as by the Sur- vey. Quit- Rent reserved to the Duke 2 Bushels and I. Kent County Records, No. 14. Fol. 7. Aug. 14. From NewYork Records, the Entries of Three Grants from Sir Edmund Andros of Lands laid out by Warrant from the Court at the Whorekill. 1. To Francis Whitwell on West side of Delaware Bay, and on North side of the Souther most Branch of Duck-Creek, containing 1000 Acres, Quit Rent 10 Bushels. 2. The just -mentioned Grant to John Briggs, of Land on the West side of Delaware Bay, about two Miles above St. John's Creek, bounded partly by Robert Jones and Walter Wharton, containing 260 Acres, Quit Rent two Bushels and a Half. 8. To John Briggs and Mary Phillips joyntly; on North side of St. Jones's Creek, containing 450 acres of Land and 40 Acres of Marsh, Quit Rent 5 Bushels. New- York Records, No. 3. Fol. 66. Aug. 22. From the New-York Records, Minutes of the Council, Major Fenwick having been sent from West-Jersey, in the Governor's Absence about his late Disturbance there, and having had Copys of what was laid to his Charge, in the several Depositions tnken at Newcastle in Delaware against him, and now appear- ing before the Governor in Council, desiring Time to answer and to prepare Witnesses on his Part, alledging his Interest to be distinct from this Government, so not to be judged or con- ' eluded by it, therefore, prays an Appeal from the Judgment 326 PENNSYLVANIA AND MARYLAND of the Court of Assizes to the King, in order whereto presses to have leave to go home about his Occasions, the same was not allowed, nor here dismist, but referr'd to the Judgment of the Court of Assizes given against him. New -York Records, No, 1. Fol. 95. Sept. 6. From Newcastle Records, at a court which was afterwards held at Newcastle before all the Justices there is an Entry made, of a Receipt, of this Date, signed by John Moll and Peter Alricks, for 8 Iron Guns, 24 Musquets, Bandileers, Iron and Shott, Musquet Bullets, Powder, &c. received from Capt. Billop as belonging to the Fort (I suppose he had been then removed.) Newcastle Records, No. 11. Fol. 68. Oct. 8. From New-York Records, Governor Andros's Commission, dated in, and sealed with the Seal of New-York, appointing 7 Persons, Justices of the Peacs at the Whorekill and Depen- dence's in Delaware Bay, viz. John Avery, Francis Whitwell, Alexander Molesteyn, John Kipshaven, Luke Watson, John Roads, and James Wells, and any four of them to be a Court of Judicature, to be in Force for one Year. New-York Records, No. 1. Fol. 103. Oct. 11. A Letter from Capt. Matthias Nicolls, dated from New-York, and said to be written by the Governor's Order. There was 680 Acres laid out for Nathaniel Walker on 11 May 1677, situate upon the South-westermost Creek of Rehoboth Bay, it is the Governor's Order that he shall have the Land, after it has been certified by your Court that it's not already granted or possest; upon the Return whereof he may have a Patent for the same. There is a Piece of Land at the Whorekill possest between Nathaniel Walker and John Winder, for which there is a Pat- ent in the Name of Robert instead of John Winder, the which is to be rectifyed, the Land lyes by a Broad Creek, between the Kill and Prime Hook, containing in the Patent 1,000 Acres, and an Island lying, at the Bottom of the Land, of about 100 Acres, which was surveyed for Part of it: but Henry Stretcher having a Grant from the Court, for about 600 Acres, in no certain Place, has pitched upon this 100 Acres Island as Part, the same not being particularized in Winder's Patent; which, if enjoyed by Stretcher, will hurt Walker and Winder; it is the Gov- ernor's Pleasure that the said Island shall- belong to Winder's Patent, and Stretcher is to take up his Land in some other Place, altogether, as near as may be, and not by Parcel or Piece-meal. Sussex Records, No. 17. Fol. 8. BOUNDARY (QUESTION. 327 1678. Oct. 12. From the New- York Records, Governor Andros signs a Writ- ing at New- York, certifying that Capt. Avery, who was one of the seven Justices of the Peace of the Court at Whorekill, had taken his Oath as such, and authorising him to administer the Oath to the others joyned with him. New-York Records, No. 1. Fol. 103. Oct. 14. A very short Entry in the New-York Records, that there was a Commission for seven Persons there named as Justices of Newcastle in Delaware. New- York Records, No. 1. Fol. 103. Oct. 26. From the New- York Records, the following Order, signed by Governor Andros at New-Y r ork, viz. Whereas in 1675 I did, amongst other Regulations, remit the Quit Rents for the first three Years, of all New Lands to be taken up in Delaware Pre- cincts, which has proved inconvenient, by many taking up and not seating; I therefore repeal and recall the same, except for such as have seated and improved ; but all such as have taken up Land, and not seated and returned and made due Returns thereof, as by Law and Orders, sent last Year to be recorded, to forfeit the same, and the Land to be disposed of as vacant Land ; and all such as have improved and seated, but not made Re- turns, are required, within six Months, to return it to the Clerk of the Court within whose Jurisdiction it is, to be there recorded, and by the Court certified to the Secretary's Office here; and such as have not paid their Quit-Rents due, may come, within six Months as above, and account and pay the Arrears, to the now Receiver, from my first coming into the Country in 1674; and, for the future, all such as have or shall take up Land, are to pay their Quit-Rents from the taking up such Land, and yearly, at the Towns of Upland, Newcastle, and Whorekill, for the several Precincts, to their Perils; and such as shall take up and not improve Land, to forfeit the same according to Law. This Order to be forthwith publisht and set up at the Court-houses of Upland, Newcastle and Whore- kill, in Delaware. New- York Records, No. 1. Fol. 104. The same Order also entered in the Newcastle Records, No. 11. Fol. 70. and in Sussex Records, No. 17. Fol. 9. Oct. 26. From the New- York Records, Governor Andros's Letter dated in New-York, and sent to the Justices of Newcastle. Your De- sire of a Minister is allowed by the Law; a new Commission for Magistrates is herewith sent ; and also a Law-Book ; Capt. Carr's Land is allowed to be sold for the Creditors, and the 328 PENNSYLVANIA AND MARYLAND Purchaser may have anew Patent for his Title; the Court have power to order Matters relating to the Surveyor, in every re- spect, according to Regulation and Law; the Book of Laws gives Directions for Weights and Measures, but ancient Custom may be lookt upon as Law ; the publick Weigh-house is to be gross Weights only; Payment for Wolves and other necessary Charges are to continue, on the East side, as formerly ; when the Accounts of publick Debts are stated, and allowed, Order shall bf taken for Payment as desired ; Houses and improved Lands are liable to pay Debts, as well as Moveables; where none administer the Court may appoint fit Persons, having due Regard to Widows; all Favour may be expected to Trade (so as the Acts of Parliament and Orders thereon be not in- fringed) with due Regard to the Custom-house here; the late Commander [Billop] is here, and to give an Account of his acting in your Parts; if any have been wronged by him, they shall have Right; also any publick Matter, which may further accrue, rectified, as soon as may be. New York Records, No. 11. Fol. 103. The same Letter entered in Newcastle Records, No. fl. Fol. 68. Same Day. There is a very material Entry, in the New-York Records, of a Commission granted by Governor Andros at New-York, appointing six Persons to be Overseers, select Men, or Commis- sioners, on the West-side of New-Jersey, on Delaware River, at Elsingburgh and Parts adjacent, for one Year, amongst the New-comers: and, if any Dispute arise amongst them and old Inhabitants of those Parts, then, Mr. Outhout, who has been an ancient Inhabitant there, and is now one of the Justices of Newcastle, to have notice, who is authorized, upon such Occa- sion, to be one of the Court, and, being there, is to preside; and you, or any four, to keep a Court as a Town or Corpora- tion, quarterly or oftener, to appoint Constables, and to allow fit Proportions of Land for present Improvement, the same being duly purchased, and to hear and determine all Matters, not extending to Life, Limb, or Member, or exceeding 51. Above which, to admit an Appeal to the Court of Justices at Newcastle. New-York Records, No. 1. Fol. 104. Oct. 28. From the New York Records, Governor Andros's Order, dated in New-York ; directed to the Justices of the Court of Newcastle, reciting that he had received several Complaints and Petitions, from divers Inhabitants of the East side of Delaware River, that they have been disturbed in the Possession of their Lands and Tenements by Major John Fenwick and others, I desire and BOUNDARY QUESTION. 329 authorize you the Justices of the Court of Newcastle to take care that the said Inhabitants be not disturbed in their Possession, upon any Pretence whatsoever, by the said Fenwick or any others, and, if Occasion, to make me forthwith acquainted with the same. New-York Records, No. 1. Fol. 105. This same Order is also entered in Newcastle Records, No. 11. Fol. 69. Nov. 1. From the Newcastle Records, Entry of the Court's Proceed- ings held this Day at Newcastle, wherein the Governor's Let- ter to them, before stated, of the 26th of October, is entered : then they go on and say, that Mr. Michael Baron, for himself and in behalf of the other old Inhabitants of the Eastern Shore, this Day brought and produced in Court a Warrant from Sir Edmund Andi*os Ofovernor, directed to this Court, being the last Order herein before stated, which Warrant they also record ; Then they go on and say, that the Governor's Order about Lands, herein before stated, was also this Day read in Court and fixed up at the Court-house, and, then, that Order is also entered ; and then they proceeded to make several Orders of their own ; the Petition of Hans Peterson, desiring to take up Lands in Schilpatts Creek, formerly improved, is referred to next Court day; another Petition of Do. to take up some Marsh before Joulsen's Island referred till next Court-day ; a Petition of Peter Alricks to take up 200 Acres in Apoquenemen, granted, he seating and improving according to the Governor's Regula- tions ; a Petition of John Walker, to take up 200 Acres granted on the same Conditions ; a Petition of Moses de Gann for a Lott in the Town of Newcastle granted ; and the like to John Boyer. Newcastle Records, No. 11. Fol. 70. Nov. 18. From the New-York Records, Governor Andros's Warrant, dated in New- York, and directed to Capt. Edmund Cant-well, Sheriff of Delaware, authorizing him to put Robert Stacey in Possession of Mattiniconk Island, in Delaware River, which the Governor had leased to Stacey for seven Years from the 1st of January then next, to enjoy the Benefit of his Lease. New- York Records, No. 1. Fol. 105. Same Day. Governor Andros's Order, signed and dated at New York, re- citing that some of the Land on the West side of Delaware River, below the late Purchase at the Falls, is as yet, unpur- chased of the Indian Proprietors, therefore, lie authorizes and ap- points Capt. Edmund Cantwell and Ephraim Harman, to agree 330 PENNSYLVANIA AND MARYLAND for and buy of the Indian Proprietors, all that Tract, yet unpur- chased, on the Western Shore of Delaware Ri vei; between the late Purchase at the Falls and the former below, together with any Islands in the River, and to adjust Time, Place, Sum, and Species, for Payment, of which to give me present Notice, for my Approbation, whereupon Order shall be taken for the In- dians Satisfaction. New-York Records, No. 1. Fol. 105. Same Day. Governor Andros's further Order, dated at New York, requir- ing Capt. Cantwell and Ephraim Herman to send the Governor a particular Account of the Rate or Levy laid in Delaware the last Year towards defraying publick Charges in those parts what it was, how raised, what it amounted to, and how disposed of? And also the Copies of all Orders relating thereto, and a par- ticular Account of what Debts there are, yet remaining unpaid, since the late Change of Government, that due Care may be taken for their Satisfaction. New-Y r ork Records, No. 1. Fol. 105. Nov. 30. An Order of the Governor and Council in New York, reciting that Henry Smith, of the Whorekill in Delaware Bay, had raised several Reports against some of the Magistrates and Officers belonging to the Court there, and having declared the same before the Governor, did afterwards, on the 8th of October past, deliver in a Paper, charging two of the said Justices and the Clerk of the said Court with several Crimes in general Terms, whereupon, he was committed to the Sheriff of the City of New York, till he should give 5007. Security to prosecute or make good his Charge against them according to Law, which he refusing, but pretending an Inquest in the County for it, the whole Matter having been debated in Council, the said Smith is adjudged to pay, as a Fine, to the Church or Poor here, 10Z. together with all incidental Charges; and that he be, likewise, bound in a Bond of 207. at the Whorekills, to be of the good Behaviour, till the next general Court of Assizes : and all Persons left to due Course of Law. New York Records, No. 1. Fol. 106. Note well— That we have, from the Records of New-York, the Commissions and special Warrants hereafter mentioned, which were granted by Governor Andros, in the selfsame Form and Manner, for Magistrates, Officers, and upon other Occasion^, to the City of New- York, and other Places, 1 which were meerly within the Body of the Province of New- York, viz. 1674. Nov. 10. His Commission to the Mayor and Aldermen of the Citv of New- York. New-York Records, No. 1. Fol. 128. BOUNDARY Q.UESTION. 331 1674. Feb. 25. His Commission to the Clerk of the Court in Long-Island. Fol. 129. 1675. Sept. 6. His Commission to Justices of the Peace for Kingston. Fol. 129. 1675. Feb. 9. His special Commission to try a Murther in Long-Island. Fol. 129. 1676. May 13. His special Summons for the Constable of Hemp- sted to appear at New- York. Fol. 130. 1676. July 1. His Commission to a Sheriff in Long Island. Fol. 130. 1676. Oct. 14. His Commission appointing Mayor, Aldermen and Sheriff of the City of New- York. Fol. 131. 1676. Dec. 1. His Warrant to take up stray Cattle in Long- Island. Fol. 132. 1678. Sept. 6. His Commission to the Magistrates at Schanec- tady. Fol. 132. All which shew that he exercised exactly the same Authority in the Duke's Name, in no other manner, in the Body of the Province of New-York, than what he did, m so many Hundreds of Instances, in that Dependency, Delaware. Mar. 5. At a Court in Newcastle, held before the Justices and Sheriff, upon William Pierce's Petition to have a Re-survey, and Grant in his own Name, of two Tracts of Land containing 500 Acres on the West side of Delaware River and on North side of Duck Creek, heretofore granted by Patent from Governor Andros to Persons who have since deserted, his Petition is granted, he paying the former Quit-Rents and all other charges ; and upon John Cox's Petition of the Like Kind, for 200 Acres on the South side of St. George's Ci-eek, the like Order made by the Court. Newcastle Records, No. 11. Fol. 72. 1679. Mar. 29. From the New York Records, Governor Andros's Order upon a Petition of Cornelius Jansen of the Whorekill, That Kilmanus AVooltbank put the Petitioner upon a Picee of Land in those Parts, for three Years, pretending that it was his; and at the End of the Term warned the Petitioner off, altho', as the Pe- titioner is informed, he has no Right thereto or Patent for the same; and therefore the Petitioner prays, since it is at his Royal Highness's Disposal, and having wrought so long upon it, that he shall enjoy it; the Magistrates at the Whorekill are to examine and make Report of the Matter, and if it be as al- ledgecl, the Petitioner to continue in Possession till further Order. New-York Records, No. 1. Fol. 107. 332 PENNSYLVANIA AND MARYLAND Apr. 23. From the Newcastle Records, an Entry made of a Letter sent by the Justices of the Court to the Governor at New-York, ac- quainting him that one Wallis left a Chest of Goods well lockt, and put into the House of Hutchinson, and, coming to fetch it away, found it had been broke open and lockt up again, and many Goods taken out of it; after three strict Examinations Hutchinson has contest, before us, that he stole the said Things, and Search being made, there is found in Hutchinson's House most of the Things; Hutchinson has been five Days kept Prisoner in our Fort; we desire the Governor's Orders and Di- rections, after what manner we are further to proceed, which shall be strictly observed by us. Newcastle Records, No. 11. Fol. 73. May 4. From Newcastle Records, an Indian Deed of Sale, whereby Mechaecksitt, chief Sachem of Cohansink and sole Indian Owner and Proprietor of all that Tract of Land called by the Chris- tians Bompies Hoeck,and by the Indians Newsink, in considera- tion of a Gun and some other Matters, grants to Peter Bayard of New- York, all that Tract of Land called Bompies Hoeck, lying on the West side of Delaware River, and at the Mouth thereof, beginning at a great Pond and a little Creek issuing out of the said Pond, being the uppermost Bounds of the said Land, and stretching down along the said River to Duck Creek, includ- ing all the Land, Woods, Marshes, &c. , between the said upper- most Pond and Creek, and Duck Creek, to hold to Peter Bay- ard in Fee, to his own sole Use. Note, This Deed is witnessed by Ephraim Herman, Clerk, who Vas one of the two Persons that the Governor had ordered to purchase the Lands of the Natives, so that (by that Circumstance )it should seem to have .been purchased by Governor Andros's Order. Newcastle Records, No. 11. Fol. 75. May 19. From the New- York Records, the Entry of a Letter to the Magistrates of Newcastle, which is signed in New- York by Matthias Nicolls, and is there said to have been by the Gov- ernor's Order; says the Governor has received theirs of 23 April, about Hutchinson's Theft, By the Governor's Command I am to acquaint you this Fact could not reach Hutchinson's Life, by the Strictness of Law, if it were in England, and the Duke's Laws are much more favourable, as you'll see if you turn to the Capital Laws; he reasons about the Nature of this Crime, and its Punishment, but the Governor leaves the whole to your Court to judge and determine, and to put your Sentence in Exe- BOUNDARY QUESTION. 333 cution. In the Case between Harwood and Vanderveere, con- cerning the Stone put in the Bag of Feathers, it's the Gov- ernor's Pleasure that there be no further Proceedings in your Court, his Honour has remitted the Fine, and a Stop is to be put to the levying the Charges, the whole Case being order'd to be heard, in this Place, before the Governor and Council in October next, when both Plaintiff and Defendant are to give their Attendance here. As to the Difference, before your Court, about the Pretence of Land between Vanderveere and Tenenian, the same is, also, to be remitted here, with all Papers or Pro- ceedings relating thereto, for a final Determination. Lauren- tius Carolis complains that an Execution against him has, for the greatest part, been levied by the Sheriff, and the Remainder called for, tho' he has Judgment for a greater Sum against the same Person Hans Paterson ; it's an old Difference about a Mare : The same is, also, to be respited, and his Excellency desires an Account how that Matter sttnds between them, whereupon a definitive Order will be given to determine the Matter in Dif- ference between them. Thus far I have in Charge from his Excellency the Governor to transfer to you. New- York Records, No. 1. Fol. 107. A Copy of the foregoing Letter is also in Newcastle Records, No. 11. Fol. 73. May 24. From the Newcastle Records, a Return, this Day made, by Edmund Cantwell, of his having, by virtue of a Warrant from the Court of Newcastle, which was dated the 8th of November last, laid out for Englebert Lott, two Lots of Ground at the North-east End of Newcastle Town, where the old Fort stood. Newcastle Records, No. 11. Fol. 71. May 31. An Order signed by Governor Andros, for Peter Gronendike at the Whorekill ; according to the Order and Judgment of the Court of Assizes, Cost of Suit, or Court-charges only, to be paid ; which being satisfied here, the Party is not to be molested by Henry Smith or any other, an account of any other Charges of said Suit. New York Records, No. 1. Fol. 108. 1679, June 4. At a Court held in the Town of Newcastle before the Justices, they granted Liberty to seven Petitioners, Fabian Orme, Chris- topher Ellitt, John Daston, Elias Brown, Thomas Snelling, and Thomas Broscum, to take up 200 Acres each, and to Ben- amin Gumley 300 Acres, in all 1500 Acres of Land, within that Court's Jurisdiction, not before granted, taken up or improved by any other; they seating and improving according to the 334 PENNSYLVANIA AND MARYLAND Governor's Orders and Regulations. Newcastle Records, No. 11. Fol. 70. June 6. A Letter from New- York, signed by Matthias Nicolls, [who was Secretary] and writ, by the Governor's Order to the Magis- trates of the Whorekill, giving them an Account of the Answers given, upon several Requests which had been made to him by particular Persons of their Parts, and his Approbation of sev- eral Matters recommended to him by their Court, which had been (also) inserted or indorsed upon the Requests, or upon the Orders of their Court sent back to the Parties concerned. In the Matter between Woolbank and Johnson, concerning which the Court had certified their Report, the same was to be allowed by Order of the Governor, and to be confirmed to Woolbank. On Verhoof 's Petition to your Court to be allowed Clerk, and about Fees, which is certified to be granted by said Court, upon their Recommendation the Governor allows it, and Fees of extraordinary Courts to be ascertained. All Fees to be collected, as by Execution. Upon the Court's Choice and Recommendation of Verhoof to be Surveyor at the Whorekill, the Governor orders him to be confirmed. Upon Kipshaven's Petition to the Governor for a Piece of waste Land, the Governor has granted the same (if as alledged) and to be surveyed in order to a Patent. Upon Vine's Petition to the Governor to officiate as Sheriff at the Whorekill and Precincts, the Governor returned the following Answer. Upon Security and Court's Choice, allowed and confirmed. Upon Clark's Petition to the Governor, of the Uncertainty of Surveyors Fees, he orders the Price of Surveys be. at the Whorekill, &c. as in Virginia or Maryland. A Magistrate of the City of New York unadvisedly took an Oath of one Taylor, concerning Fees which he claimed for surveying at the Whorekill, the Magistrates of this City having nothing to do in any other Parts of the Government out of their Precincts, and the said Oath being taken contrary to Law, you are to take no Cognizance thereof, and by no means to admit it as a Proof or Evidence for Taylor. New York Records, No. 1. Fol. 109. June 10. From the New- York Records, the Governor's Letter, signed by him, and dated in New-York, directed for the Magistrates or Court of Newcastle, owning the Receit of theirs of the 4th Instant, which had exclaimed against him, as having im- properly remitted Vanderveere's Fine, in the Case between Harwood and him, which had been determined by their Court. And he orders, that their Clerk, or some other in their behalf, BOUNDARY QUESTION. 335 and Harwood and Vanderveer, repair and attend at New- York for a Hearing of the Cases they mention, to satisfy themselves and others, and that, tho' it has not been lately, it is no wrong, if Re-hearings be from them, as well as other subordinate Courts, tho' for the meanest Subject. New-York Records, No. 1. Fol. 110. July 2. From Newcastle Records. The Court there make and sign a Writing, impowering Mr. John Moll, Capt. Edmund Cant- well and the Clerk Ephraim Herman, to appear in behalf of the Court, before the Governor at New-York, as well in Defence of the Court, and the Orders and Sentences by them past, as also in all Humility to request Privileges, and to represent Grievances and desire that they may be removed, &c. Newcastle Records, No. 11. Fol. 77. July 8. Governor Andros's Commission, dated in New- York, appoint- ing Philip Pocock Surveyor to survey and lay out Tracts of Land below the Falls of Delaware River, on the West side, for several Persons lately come out of England and destitute of Land, to take such Fees as in Maryland, and to make due Re- turns of such Surveys for the Confirmation. New-York Records, No. 1. Fol. 110. Aug. 20. From New-York Records, the Entries of three Grants from Sir Edmund Andros, viz. 1, For Land laid out for Josiah Barkstead, by the Approbation of the Court at the Whoreki lis on the West-side of Delaware Bay, and on the South-east side of St. Jones Creek, containing 800 Acres as by Survey, Quit- Rent 8 Bushels. 2. For Lands in Delaware Bay, in ttie Woods, near unto Rehobah Bay, distant from the Whoreki lis about ten Miles, unto Francis Meggs and John Coiley, containing 600 Acres, as by Survey, Quit Rent 6 Bushels. 3. For Land in Dela- ware Bay, and being upon Rehobah Bay, distant about eight Miles South from the Whorekills, which had been laid out by Approbation of the Court at the Whorekills for John Okey, arid bounded, partly by Timothy Love, containing 400 Acres, Quit Rent 4 Bushels. New York Records, No. 3. Fol. 67. Same Bay. Another Grant from him, to Andrew Deprie, for Land in Delawai-e Bay, near unto Rehobath Bay, on the Northside thereof, bounded, partly, by John Avery, containing 400 Acres, Quit-Rent 4 Bushels. New- York Records, No. 3. Fol. 68. Same Bay. Also two more Grants from him, 1. To Robert Hignat and 336 PENNSYLVANIA AND MARYLAND John Orue, of Land already seated in Delaware Bay, near unto Kehobah Bay, about four Miles to the South of it, called West- chester, containing 1 900 Acres, Quit-Rent 9 Bushels.' 2. To Robert Bedwell, of Land on the West-side of Delaware Bay, and on South-East-side of St. Jones Creek, bounded by the Cypress Branch, and Chaptank Road, &c. containing 800 Acres, Quit Rent, 8 Bushels. New-York Records, No. 3. Fol. 69. Nov. 20. Four more Grants from Governor Andros, dated in New York. 1. To Peter Teschermaker, for a Town Lot in the West End of Newcastle Town, Quit Rent, one Bushel. 2. To Matthias and Amilius de Ring, for another Town Lot at the West End of Newcastle Town. 3. To Hendrick Vanderburgh, for another Town Lot in Land Street in Newcastle Town, Quit Rent, one Bushel. 4. To Thomas Jacobson, and two others, of Land on the West Side of Delaware River, callad Red Clay Point, on the North, and North West Side of Bread and Cheese Island, and more than half compassed with a Branch of Christiana Creek, called Red Clay Creek, containing 248 Acres, Quit Rent, two Bushels and an Half. New York Records, No. 3. Fol. 70. I Same Day. Three more Grants from Governor Andros. 1. To Bryan Omella, tor some improved Land, on West Side of Delaware River, on North Side of Apoquimine Creek, in the Drawers Creek, containing 400 Acres, Quit Rent, four Bushels. 2. To Maurice Daniel, of Land on West SMe of Delaware Bay, on North West Side of Apoquemini Creek, containing 190 Acres, Quit Rent, two Bushels. 3. To John Moll, of three Town Lots in Newcastle Town, late Captain John Carr's, and since sold at publick Outcry, in Warmore Street, Harte Street, Land Street and Minquaes Street, Quit Rent, two Bushels. New_ York Records, No. 3. Fol. 71. Dec. 3. An Entry in the Newcastle Records, that Hendi-ick Williams petitioned the Court, shewing, that, according to this Court's Answer to his former Petition the third of April lakt, concerning his two Judgments, and Executions against the Estate of Walter Wharton, deceased, he had petitioned the Governor at New York, who gave for Answer, he thought it but Reason the Petitioner should be paid his Debt out of the Estate of Whar- ton ; wherefore the Petitioner prays an Order, with Preference, against Wharton's Estate, ordered, since the Governor is of Opinion he .ought to be paid, that he be paid, accordingly, out of Wharton's Estate; but no Preference to be allowed, BOUNDARY QUESTION. 337 t unless —the Governor shall think fit so to order it. New- castle Records, No. It. Fol. 78. Feb. 4. An Entry of a Letter, from the Justices at Newcastle to the Governor with the Request of several Planters, Inhabi- tants of that County, who owed Quit Rents in Wheat, and were threatened by the Receiver, but had no Wheat to pay, only Tobacco ; praying, that that might be taken at a reason- able Price, to be set by the Governor, it being taken in the neighbouring Colonies at 2d. a Pound, otherwise, several must forfeit their Lands. They, likewise, desire to have a Rule, whether Arrears of Quit Rents, due for forfeited Lands, must be paid by the new Possessor, when new granted. Desire Di- rections about an old Man who had been employed to look after the Fort. Also, whether the Fort should be repaired, and how the Means for it should be found. A new Commission being coming from the Governor, and one of their Magistrates being going to England, they present the Names of two Persons, as fittest to be put in the Commission in his stead, if the Gov- ernor thinks fit. They desire the County may be enlarged up and downwards, as far as St. Jones's. Newcastle Records, No. 11. Fol. 79. Mar. 2. An Entry, that one Randal presented a Petition to the Court, suggesting, that he bought 300 Acres of one Test in St. George's Creek, for which he paid the Quit Rent last Year, and is will ing to pay it this, but is informed the Court had escheated it for want of Settlement; and, as he had been a Prisoner in Turkey, desired to have the Land again ; upon examining the Case, the Court find the Land was thrice sold, but never any Improvement made, which is contrary to Law, and therefore escheated; and, since the Court cannot lawfully recall their former Grant and Order therein, to Rolf Andrews and another, they, therefore, refer the Petitioner to the Governor at New York, for his Order and Determination therein. Newcastle Records, No. 11. Fol. 81. 1680, May 24. From New York Records, the Duke of Y'ork's Commission, dated at Windsor, authorising and appointing John Lewin, Gent, to be his Agent and Servant, in New York and Albany, and other the Duke's Lands and Territories in America; to proceed thither, and to enquire and find out all the Estate, Rent, Revenues, Profits, and Perquisites, which in any Sort did of Right belong, and appertain to the Duke, and arise in any 22— Vol. XV. 338 PENNSYLVANIA AND MARYLAND of those Places, and to examine ail Books, Papers., Records, and other Matters relating thereto; with Power to demand, from all the Duke's Officers and Servants, or any others em- ployed in any Place of Trust belonging to the Duke, all Books, Papers, Writings, Records, Registers, Accounts, and all other Things tending to the Discovery thereof ; and, in a more especial manner, to enquire and find out, whether the free Trade of any the Inhabitants of those Places, or any Merchants trading thither, now is, or has been, obstructed or hindered, and by what means, and how such Obstructions may be removed, and by what Methods the Trade and Traders in those Places may be encouraged and encreased ; if being the Duke's real Inten- tions and Desire to encourage and advance the Ease, Benefit, and Advantage of Trade, and the Merchants and Inhabitants thei-e; and for the better executing of this Trust, which the Duke reposes in him, he is to observe and follow such directions and Instrutions as he received with that Commission. New- York Records, No. 1. Fol. 112. Note — This Commission is likewise entered in the Records of every one of the Three Lower Counties, viz. in Newcastle Records, No. 11. Fol. 82. In Kent Records, No. 14. Fol. 8. And in Sussex Records, No. 17. Fol. 10. May 28. Entries in the New York Records, of four Commissions granted by Governor Andros, dated in, and sealed with the Seal of New York. 1. To five Persons to be Justices of the Peace, in the Jurisdiction of Newcastle, and the Dependencies, and three, or more of them, to be a Court of Judicature for one Year. 2. To five more Persons to be Justices of the Peace in the Juris- diction of Upland Court or County, in Delaware River and De- pendencies, (which is the first instance that we have of a Com- mission in this New County of Upland.) 3. To four more Persons to be Justices of the Peace, in the Jurisdiction of the County of St. Jones, in Delaware Bay and Dependencies; the same to begin from the South Side of Duck Creek, so to extend to the North Side of Cedar Creek. 4. To five more Persons viz. Luke Watson, John Roads, John Kipshaven, Otto Woolast, and William Clarke, to be Justices of the Peace, at the Whore- kill and Dependencies; the said Court to begin at the South Side of Cedar Creek, and so to go downwards. New York , Records, No. 1. Fol. 113. June 1. The Governor's Certificate and Dedimus, dated in New York, importing, that John Roads, one of the Justices of the Whore- kill Court, having taken his oath for the same, the Governor BOUNDARY QUESTION. 339 authorised him to administer the Oaths to the other Magis- trates. Sussex Records, No. 17. Fol. 11. Same Day. The Governor's Order, dated in New York, reciting, that there was, heretofore, granted unto John Morgan, and John Denny, 300 Acres each, on the West Side of Delaware River, towards the Mouth thereof, near Duck Creek, which have never been improved, and the Persons are dead ; now, upon Application of Ephraim Herman, that he may have the said two Pieces, I heraby grant the same, to be confirmed to him by Patent, when the old Patents shall be delivered in. New York Records, No. 1. Fol. 113. Same Day. The Governor's other Order, alike to the former in all Re- spects, being in Favour of Lausa Cock, for 600 Acres on the West Side of Delaware River, and on the North Side of Duck Creek. New York Records, No. 1. Fol. 113. June 12. The Governor's Warrant, dated in New York, directed to Captain Edmund Cantwell, Sheriff of Newcastle on Delawai-e, requiring him to summon Jacob Young, to appear personally before the Governor, and his Council, to answer for presuming to treat with the Indians, within this Government, without any Authority, to the Disturbance thereof. New York Records, No. 1. Fol. 114. Same Day. Governor Andros's Commission, dated in New Jersey, au- thorising Ephraim Herman to be Surveyor for Newcastle, and Precincts, as also for St. Jones, and Dependencies, to lay out Land, as a Surveyor ought to do, in Places not taken up, ac- cording to such Warrants as you shall receive from myself, or, upon extraordinary Occasions, to fit Persons as shall apply for the same; of which, to make due Returns to the Secretary's Office at New York, according to Law. New York Records, No. 1. Fol. 114. This Commission is also entered, being there recorded by Order of Court, of 3 November following, in Newcastle Re- cords, No. 11. Fol. 85. J'line 17. A Special Court was held for the Whorekill, for the Estab- lishment of the new Justices, and they were there sworn by Mr. John Roads, 'whom the Governor had before qualified and au- thorised thereto. Sussex Records, No. 17. Fol. 11. 340 PENNSYLVANIA AND MARYLAND July 10. An Original Indian Deed of Sale, (upon Half a Sheet of Paper) whereby K«noekere, Alom, Eliggene, Nogcotto, Towis, Wippaycan and Winappanegge, for themselves, and their Heirs, alienate, bargain, and sell, unto Mr. John Moll, of the Town of Newcastle upon Delaware River, in the Behalf of all the Inhabit- ants dwelling at Case and Broett Island, Red Clay Creek, and White Clay Creek, quite unto the Falls thereof, whieh are al- ready settled, and shall settle hereafter, upon any of the said Lands about Christianna Creek, as far as tlie Precincts of Mary- land, the Land called Musser Cripple, therein included ; to hold, free of the Claims of all Indians, and their Heirs; and that, for a valuable Consideration, in real Satisfaction, paid to the In- dians by the said John Moll, as well for his own proper account, as also for the proper Account of all the present, and all future Settlements, and Inhabitants, in all those Parts. Given under our customary Mark in Newcastle, 10 July, 1680. Pensilvania Exhibits, F. F. Note — John Moll, the Grantee, appears to have been one of the Justices -of Newcastle, as long as they had had any Com- missions from the Duke of York ; and generally, at the Head, or first, of the Commission ; and the above Deed appears to be witnessed by J. de Haes, who also appears to have been, very long, one of the Justices of Newcastle. Aug. 21. A Meeting of the Justices was held in Newcastle, when they writ a Letter to the Governor at New York, and sent it by Eph- raim Herman their Clerk, in relation to Captain Collier's Ac- count, (who seems to have had a Demand upon the Publick.) They tell the Governor there was never any other Tax, or publick Levy laid at Newcastle, than in 1G77, which was with his own Approbation, and on Account of the Wolves Heads; and at the same time were collected the Fines, whereof an Account was then also sent him. We have perused Captain Collier's Accounts, the Article therein for Wolves Heads the Sheriff will pay; as also for repairing the Dyke, the several Persons will pay; and for the rest of Captain Collier's Account, we know not which way it may be paid, having now, nor before, any Cash, or publick Store to pay the same. The 25 per Cent, charged by Captain Collier, for collecting the Wolf, the Dyke, and Fine Money, we desire the Governor to regulate, as he shall think just and equitable. Newcastle Records, No. 11. Fol. 83. 1680, Aug. 26. From Kent Records, a Warrant signed by their Clerk, and directed to Cornelius Verhoof the Surveyor, that it was granted BOUNDARY QUESTION. 341 to lay out for — Raynier Williams, and Johannes Kypp, the Quantity of 800 Acres of Land, in any Part of that County, or Precincts, not already granted, and to make return of the Cer- tificate of the Survey of the said Land into the Office in six Months, it being formerly granted from the Court. Kent Records, No. 14. Fol. 16. Sept 22. At a Court held before the Justices for the County of St. Jones's it being proved in Court, that Robert Willing had abused his Royal Highness's Justices of the Peace, by saying he wondered the Duke of York was such a Fool, as to make such inconsiderable Sons of Whores Justices, the Court con- demn him to pay 500 Pound of Tobacco to the Use of the Pub- lick, and to be bound over to the Peace for a Year and a Day, and pay the Costs. Kent Records, No. 14. Fol. 9. Oct 4. Two Warrants, or Orders, signed by Governor Andros, the one directed to the Magistrates of the Court of Newcastle, the other to the ^Magistrates of the Court of Upland in Dela- ware River; he says, that being informed of some Differences, in passing Captain Cantwell, the Sheriff of Delaware's Ac- counts, for collecting the Asessments, Amerciaments, and Fines, there is allowed to the petty Constable 12d to the high Constable 6d. and to the Sheriff 6d. in all, 2s. per Pound, ac- cording to the Directions in the Law, which he is to have ac- cordingly, and no more, notwithstanding any greater Latitude formerly given, upon Misinformation, contrary to Law. New York Records, No. 1. Fol. 118. Note — This last Order is also entered in Newcastle Records, No. 11. Fol. 84. Oct 4. Another Order sign'd by Governor Andros at New York, re- citing, that by the Accounts of Captain Cantwell, Sheriff of Delaware, there remains due to him for Disbursement, 59?. 16s. 7d. i. the Governor orders Ephraim Herman, Collector of the Quit Rents at Delaware, to pay Cantwell that Sum, out of Arrears due for Quit Rents from Cantwell, and others in said River, particularly for two Parcels of Land of 800, and 900 Acres in Apoquinemen, formerly taken up, and patented, by Cant- well in the Year 1676. New York Records, No. 1. Fol. 118. Oct 5. From New York Records, the Entry of a most Solemn Court of General Assize, held in that City, which being opened, &c. , they prcoeeded to try the following Cause. John Stevens, Ap- 342 PENNSYLVANIA AND MARYLAND pellant ; John Richardson, Defendant. An Appeal from a Ver- dict and Judgment given at the Court of the Whorekill, in Feb. 1679, for the Defendant, for Title of Land, called Willing- brook, first surveyed for, seated, and improved by the Defend- ant; upon full Hearing of Proceedings of said Court, and what could be alleged by both Parties, their Evidences and Proofs, the Court confirms the said Judgment, and that the Defendant have and enjoy all the Land he hath seated and improved, with the buildings thereon; the Appellant to pay Costs. New York Records, ^o. 1. Fol. 115. Oct. 6. Also, at the same Court of Assizes, the next Day. Peter Gronendike, Appellant; John Vines, Defendant. An Appeal, from a Verdict and Judgment obtained by the Defendant against the Appellant at a Court held at Deale. [this was formerly Whorekill, but now named Deale— as you'll see when you come to the 15th of December,] for the Town and County of Deale, the 15th of June last, on an action commenced by the Appellant against the Defendant, as Sheriff, for Refusal to give him Satisfaction for an Execution, by him levied on the Estate of John Avery, according to an Order of the Governor and Coun- cil, and neglecting to perform his Office and Duty therein, which the Defendant pleaded he had done according to Law; Proceed- ings of said Court, with several Depositions read, and Parties fully heard, and Matter debated. The Court give their Judg- ment, that the Defendant, as Sheriff, has fully performed his Office and Duty therein ; therefore, confirm the said Judgment given at Deale Court. The' Appellant to pay all Costs. New York Records, No. 1. Fol. 116. Also' Mr. John Moll, Justice of the Peace, and President of the Court at Newcastle, being called to answer an Indictment exhibited against him. by one Abraham Mann, for Words spoken in Court, and at other Times, to which Moll pleaded not guilty; and a Jury being impanelled and sworn, with sev- eral Evidences, they brought in their Verdict, and found him guilty of speaking the Words, in the first and second Articles, and of denying Execution, when demanded, mentioned in the 4th Article, and for the rest, not guilty. Which the Court taking into Considei-ation, do adjudge the said Indictment to be illegal and vexatious, and that Moll, by what found against him, is not guilty of any Crime, or Breach of any known Law, therefore, acquit Moll from the same, and order Mann to pay the Costs of Court. Mann moved for an Appeal for England, which is granted, he giving sufficient Security to the Value of 1,0007. to prosecute the same, and pay Damage to the Party, if cast. New York Records, No. 1. Fol. 117. BOUNDARY QUESTION. 343 Oct. 11. The Governor's Warrant, to lay out Lands at Delaware, dated at New York, reciting, that John Richardson having obtained, at the Court of Assizes, a Judgment lor the Land he had seated and improved, and having a considerable Number of Hands, therefore to lay him out 1200 Acres thereto adjoining. Also to lay out to John Stevens 1200 Acres of Land adjoining, and to make Returns of the Surveys, in order to Confirmation, according to Law. New York Records, No. 1. Fol. 118. Nov. 13. Copy of Minutes of the Governor and Council at New York of this Date, entered in the Sussex Records, purporting to have been made upon an Application of the Magistrates and Court of the Whorekill, signifying the Necessity and Want of a Court house, Prison, Stocks and Whipping-post, for the Publick Ser- vice, and desiring to be impowered to rate the Inhabitants there to pay for the same. Granted for the Prison and Stocks, for which they are to make an equal Rate according to Law. Sussex Records, No. 17. Fol. 10. Nov. 15. From the New York Records, a Letter from Governor Andros in New York to the Magistrates and Court at the Whorekill, and St. Jones, with an Entry that the like Letter was sent to the several Magistrates and Courts in their respective Precincts throughout the Government Telling them that he had received Orders, and was going for England ; upon which he had sent, and ordered a General Court or Meeting of the Justi- ces, to be at New York the 17th Instant, excusing them by reason of the Distance and Season of the Year; also that he designed to leave Captain Brockholes his Lieutenant, as last time; likewise that Mr. John Lewin, a Gentleman sent by the Duke, was arrived, authorised to inspect the Revenue, as by his Commission, of which the Governor sends them a Copy. New York Records, No. 1. Fol. 119. Note — a Copy of thi-s Letter is also entered in Sussex Records, No. 17. Fol. 13. and another Copy of the like Letter, only dated the 23d of December, is entered in Newcastle Records, No. 11. Fol. 86. Nov. 17. From the Records in Kent County, Entry of the Acts of Court held before the Justices for St. Jones's County, upon the several Petitions of the after-named Persons, the Court grants to them, separately, Liberty to take up, within the Limits and Precincts of their Court : Then they name 16 Persons, and 344 PENNSYLVANIA AND MARYLAND the Quantity of Land, for them all, amounted to 9500 Acres; And the Court makes an Order, that all Persons taking up Lands, in Default of Settlement and Improvement within one Year after the Date of the Survey, shall forfeit their Interest in the same. Kent Records, No. 14. Fol. 10. Dec. 15. An Act of the Court, entered in the Sussex Records, for that the Governor of New-York has made an Alteration of the Name of this Town and County, and instead of theWhorekill to be from henceforth called by the Name of Deal; The Court orders and decrees that it bes^ called from this Day. Sussex Records, No. 17. Fol. 14. Dec. 21. From the Records in Kent County, Entry of the Acts of Court held before the Commissioners for St. Jones's County; whereby, on the Petitions of sundry Persons, the Court grants to each of them Liberty to take up, within the Limits and Precincts of that Court, the Quantities of Land there specified, naming 33 Persons, and the whole Quantity amounts to 18,663 Acres. And on the Petition of Verhoof, that by an Order of the Whorekill Court of the 11th of February last, he was to have his Land surveyed again; but since that the Governor was pleased to divide St. Jones from Whorekill County, and the Survey not being accomplished before the Division, he pravs this Court to order a Confirmation of the Order of the Whore- kill Court; and accordingly the Court does confirm it, and the Petitioner is to have his Lands surveyed. Likewise a Let- ter of Attorney from Nicholas Bartlet of St. Jones's County in the Province of New York, to his Wife, was this Day ac- knowledged in open Court and entered. Kent Records, No. 14. Fol. 11, 12. Dec. 30. A Grant from Governor Andros, to Peter Gronendike, for Land on West Side of Delaware Bay, and on North Side of Murder-Creek, containing 413 Acres, Quit-Rent 4 Bushels. New York Records. No. 1. Fol. 114. Jan. 1. From Sussex Records Entry of Acts of Court held before the Commissioners relating to the Court house, Stocks, Prison, &c. which the Governor of New York ordered to be built for the Service of the said Country. And, upon the Complaint of Parret the Indian Schackamaker, alledging, that Henry Bow- man and others takes his Land, and gives him no Satisfaction for it, the Court orders that every Person that seats any Land, ( BOUNDARY QUESTION. 345 shall pay the Indian Proprietor; for 600 Awes or under, one Match-coat; and, if above 600 Acres, two Match-coats; and, at the time of the Indians's receiving the Coats, he is to convey the Land to the Person he receives the Coats of ; and if any Person refuses to pay the Indians for the Land as aforesaid, Exe- cution to be given out for the same, directed to the Sheriff, to execute and pay to the Indian. After which (at Fol. 16) follow several other Acts or Orders, that several Certificates, which Cornelius Verhoofe this Day presented to the Court to be signed and allowed by the Court, be certified, except two that have taken in other Persons Lands. And two Entries that Parret the Indian Shackamaker acknowledged in open Court, that he had sold, unto Henry Bowman, the Indian Right of 1000 Acres and 700 Acres between Slaughter-Branch and Cedar- Creek. Sussex Records, No. 17. Fol. 14. and Fol. 16. Jan. 31. Upon the Kent Records, a Letter from Ephraim Herman to (some) Gentlemen, complaining that several of the People refuse to pass their Bills for the Payment of the Surveyors Fees estab- lished by the Governor; and more, he admires that, as he hears, Clerks Fees are to paid in Tobacco at 121, 6d. per. Hundred; It seems (says he) as if his Royal Highness's Laws were slighted or contradicted; and, for any to make Laws, or By-laws, without the Governor, or Court of Assizes Law and Approbation, is a Contempt of Authority, and I suppose it will be found so. Sirs, The Law expressly says that all Fees shall be paid in Silver, Beaver, Wampum, or Wheat ; one of which I may, not only by Law, but also by the Governor's distinct Order, insist on ; but, because the Country does not plentifully afford the same, I am willing to take the Produce of the Country, which is Pork, at a reasonable Rate, and should be ready to take Tobacco, if it was like to be worth any thing. If I am denied what the Law and Reasons allows, I shall desist for a while, and make the Case known to the Governor or his Deputy ; I pray, Sirs, you would right me, where I am wronged, it being your Places so to do ; I hope to be with you and attend at March Court next. Mar. 4. Matters having passed in America as herein before stated, it was upon this Day that King Charles the Second granted, by Charter, the Province of Pensilvania to Mr. Penn : That was not a sudden unadvised Act, but went through, for nine Months before, a very serious Examination on the Part of the Crown ; and not only so, but the Duke of York, and the Lord Balti- more's Agents, were, from time to time, consulted thereon. I 346 PENNSYLVANIA AND MARYLAND would not so servilely adhere to the Regularity of giving every Paper according to its Date, as to intermix the Papers which, on this Occasion, past in England, for nine Months now past, along with those Papers of the ordinary Occurrences in America, . in that Period of Time: but, as these Papers, preparatory to Mr. Penn's Charter for Pensilvania, are exceedingly material, almost every single Word of them, I, therefore, chose to throw them all together, under this (marginal) Date, at the same time giving you the real Dates of all the same, and the Con- tents as follows, viz. For the The Humble Ad Son to Sir W Sheweth, N That having in Ireland by the Oppression of the Lord decease (though most of it remitted by to borrow every Penny of it, by reason England was under the Stop of the Ex with the growing Interest of it, and 9 ye for the Relief of his own, and his Mother's Ruine. He Humbly prays that that Princely Respect he of his Compassion to the Afflicte America, lying North of M River, on the West, limmit extend as far as plantable, he doubts not by his Intere profitable Plantation to the to raise that speedy and sufficient Incumbrances, that he may Debt of, at least ll.OOOZ. and be and Time as shall be most And The foregoing imperfect Paper (one half of it being worn away) remains in the Books at the Board of Trade, is spoke to by Mr. Gallibrand, as Mr. Penn's original Petition for a Grant of Pensilvania, and is the Exhibit, Botra No. 26. 1680, June 14. In the Council-Chamber, Monday the 14th of June 1680. Present Lord President, Duke of Albemarle, Bishop of London, Mr. Secretary Jenkins, Sir T. Chichley : The Petition of Wil- liam Penn, referred by an Order from the Earl of Sunderland of the first Instant, is read, praying, in Consideration of Debts BOUNDARY QUESTION. 34? due to him, or his Father, from the Crown, to grant him Letters Patent, for a Tract of Land in America, lying North of Maryland, on the East bounded with Delaware River, on th3 West limited as Maryland, and Northward to extend as far as plantable; Whereupon, Mr. Penn is called in, and, being- asked, what Extent of Land he will be contented with Northerly? declares himself satisfied with three Degrees to the Northwards ; and that he is willing, in lieu of such a Grant, to remit his Debt, due to him from his Majesty, or some Part of it, and to stay for the Remainder till his Majesty shall be in a better Condition to satisfy it: Upon the whole Matter, it is ordered that Copies of his Petition be sent unto Sir John Werden, in behalf of his Royal Highness, and unto the Agents of the Lord Baltimore, to the end they may report how far the Pretensions of Mr. Perm may consist with the Boundaries fof Maryland, or the Duke's Propriety of New York and his Possessions in those parts. This Exhibit is proved by Mr. Cfellibrand, and is Botra, No. 6. 1680, June 14. To Sir J. Werden about William Penn. Council-Chamber, 14th June 1680. Sir, the Right Honourable the Lords of the Committee for Trade and Plantations having received a Peti- tion of William Penn. referred unto them by an Order from his Majesty, concerning a Tract of Land in the North Part of America, which he would undertake to settle, and render it a profitable Plantation to the Crown; But their Lordships have not thought tc take any Resolution thereon, before they had first consulted you in relation to the Propriety of his Royal Highness in those Parts; and do therefore command me to send you a Copy of his Petition, here inclosed, with their Desire, that you would report unto them, whether such a Plantation or Settlement would, any ways, intrench upon the Patent of his Royal Highness, or otherwise prejud ice the same. I am — Mary- land. Whereupon, their Lordships, taking notice of the Neigh- bourhood of Maryland to the Country he desires to plant, have thought fit to order a Copy of the Petition to be sent you, or such others as are employed here in behalf of the Baltimore, to the end you may acquaint them. This Copy is proved by Mr. Gellibrand, and is Botra, No. 7. 1680, June 23. For William Blaythwaite Esq; Secretary to the Right Hon- ourable the Lords Commissioners for Trade and Plantations at Whitehall. St. James's 23d June 1680. Sir, I had answered your Letter, of the 14th Instant, sooner, but that my going to Windsor just when I received it, hindred me then, and also 348 PENNSYLVANIA AND MARYLAND made me think it proper to acquaint the Duke with the Con- tents of it first; What I have now to say is this, that, by all which 1 can observe of the Boundaries mentioned in Mr. Penn's Petition, they agree weli enough with that Colony or Plantation which hath been hitherto (ever since the Conquest of New York by Colonel Nicholls) held as an Appendix and Part of the Government of New York, by the name of Delaware Colony, or more particularly Newcastle Colony, that being the Name of a principal Place in jt (the whole being planted, promiscuously^ by Swedes, Finlanders, Dutch and English) all which hath been actually under the Government of his Royal Highness's Lieutenant at New-York hitherto ; but what are its proper Boundaries (those of Latitude and Longtitude being so very little known, or so ill observed, as Experience tells us, in all the Wet-Indies) I am not able to say. If this be what Mr. Penn would have, I presume the Right Honourable the Lords of the Committee for Trade and Plantations will not encourage his Pretensions to it, because of what is above-mentioned, which shew plainly the Duke's Right preferable to all others (under his Majesty's Good-liking) though it should not prove to be strictly with the Limits of the Duke's Patent; but, if it beany other Parcel of Land unimproved, in those Parts, which is without all other Patents, and not interfering with the Pos- sessions of his Majesty's Subjects already settled there, I hum- bly submit to their Lordships how far they may think conve- nient (under fitting Restrictions and Qualifications, whereby to tie up the Government of such new Colony, as near as may be to the Laws of England) to recommend the Petitioner's Re- quest to his Majesty: Thus, I think I have T as far as I am able at present, fully answered your Letter upon this Subject ; and so I remain, Sir, your most affectionate Friend and Ser. vant, Jo. Werden. This is proved by Mr. Gellibrand, and is Botra, No. 8. 1680, J line 23. To Mr. Blaythwaite at his Office in Whitehall, present. Sin, In answer to your's, in reference to Mr. Penn's Petition, some things are thought proper to be offered, in respect to the particular Concern of my Lord Baltimore, something in referenc e to the Public on his Lordship's behalf. It is desired, that, if the Grant pass unto Mr. Penn, of the Land petitioned for by him in America, that it may be expressed to be of Land that shall lie North of Sasquahanna Fort, and North of all Lands in a direct Line between the said Fort and Delaware River, and also North of all Lands upon a direct Line WestAvard from the said Fort, for that Fort is the Boundary of Maryland North- ward ; It is further desired, that there may be contained general BOUNDARY QUESTION. 349 Words of Restriction, as to any Interest granted to the Lord Baltimore, and saving to him all Rights granted ; It is also prayed, that my Lord's Council may have a Sight of the Grant before it pass. On the Publick Account, it is offered that some due Caution be provided, that no Arms, Powder, Shot or other Ammunition, be sold by any that shall settle in this new Plantation, to the Indians or Natives; for thereby a com- mon Mischief may happen unto all his Majesty's neighbouring Plantations. This, with our Thanks on my Lord Baltimore's behalf, for your Care on him, is all at present from, Sir, your humble Servants, Barnaby Duneh, Ri3hard Burk. This is proved by Mr. Gellibrand, and is Botra, No 9. 1680, June 25. Whitehall, Friday 25th of June, 1680. Present, Lord Presi- dent, Marquis of Worcester, Earl of Clarendon, Mr. Sceretary Jenkins. The Petition of Mr. Penn is again read, concerning a Tract of Land to be granted him in America, together with a Letter from Sir John Werden, and another from the Lord Baltimore's Agents, touching the same. And Mr. Penn being afterwards called in, is told, that it appearing by Sir John Werden's Letter, the Part of the Territory desired by him is already possessed by the Duke of York, he must apply himself to his Royal Highness for adjusting their respective Pre tensions. And Mr. Penn being also acquainted with the Matter of the Letter from the Lord Baltimore's Agent's he does agree that Susquahannough Fort shall be the Bounds, of the Lord Baltimore's Province. And, as to the furnish- ing of Arms and Ammunition to the Indians Mr. Penn, declares himself ready to submit to any Restraint their Lord- ships shall propose. This is proved by Mr. Gellibrand, and is Botra, No. 6. 1680, Oct. 16. For my Honoured Friend William Blaythwaite Esq ; Secretary to the Right Honourable the Lords Commissioners for Trade and foreign Plantations at Whitehall. Whitehall, 16th Oct. (80.) Sir, You heretofore wrote to me, touching Mr. William Penn's Petition, then before the Right Honourable the Lords Commissioners for Trade and foreign Plantations; to which I answered you, as at that time I was obliged to do. Since then, Mr. Penn hath represented to the Duke, his Case and Circumstances (in relation to the Reasons he hath to expect Favour from his Majesty, touching that Request of his) to be such, as that his Royal Highness commands me to let you know (in order to your informing their Lordships of it) That he is very willing Mr. Penn's Request may meet with Success: that 350 PENNSYLVANIA AND MARYLAND is, That he may have a Grant of that Tract of Land which lies on the North of Newcastle Colony (Part of Delaware) and on the West Side of Delaware River, beginning about the Latitude of 40 Degrees, and extending Northwards and Westwards as far as his Majesty pleaseth, under such Regulation as their Lordships shall think fit. I am, Sir, your very humble Servant, Jo. Werden. This is proved by Mr. Gellibrand, and is Botra, No. 10. 1680, Nov. 1. Whitehall, Thursday the 1st of Nov. 1680. Present, Prince Rupert, Lord Privy Seal, Earl of Bridgewater, Earl of Sunder- land, Earl of Halifax, Earl of Clarendon, Earl of Essex, Mr. Hyde, Mr. Godolphin, Mr. Chancellor of the Exchequer. The Petition of Mr. Penn is read, desiring that a Day may be ap- pointed for preparing a Grant unto him of Propriety fn a Tract of Land in America upon Delaware River, and their Lordships appoint this Busii oss for Thursday next. This is proved by Mr. Gellibrand, and is Botra, No. 6. 1680, Nov. 8. Copy of a Letter to Mr. Attorney General about Mr. Penn. Council Chamber, the 8th November 1680. Sir, His Majesty having referred the Petition of Mr. William Penn, unto the Lords of the Committee of Plantations, wherein he prays his Majesty to grant him a Tract of Land in Amercia, for the set- thing a Colony and Plantation there; and their Lordships having received, from him, the Inclosed Draught of a Grant, which he desires may pass to him for the Government of that Colony, have commanded to signify their Desire unto you, that, upon Consideration of the Powers therein proposed, you report unto them, whether you have any thing to object against the same ; their Lordships having appointed to meet again upon this Business on Thursday next at Four in the Af- ternoon. This is proved by Mr. Gellibrand, and is Botra, No. 11. 1680, November 11. Whitehall, Thursday November the 11th, 1680. Present, Lord Privy Seal, Earl of Clarendon, Earl of Halifax, Earl of Bridgewater, Earl of Sunderland, Mr. Secetary Jenkins. Mr. Attorney General presents the Committee with his Observations upon the Draught of Mr. Penn's Patent. This is proved by Mr. Gellibrand, and is Botra, No. 6. 1680, Nov. 18. To Sir J. Werden about Mr. Penn's Patent. Council-Cham- ber the 18th Nov. 1680. Sir, I formerly sent you the Petition BOUNDARY QUESTION. 351 of Mr. Penn, touching a Tract of Land adjoining to New-York, and received your Answer thereupon, which I presented to the Lords of the Committee of Plantations, and now send you, by their Lordships Order, an Extract of so much of the Patent, which he is soliciting, as concerns the Boundaries, to the end you may make your Objections to it in behalf of his Royal Highness, if you see Cause. The Committee having appointed to take this Business into their further Consideration on Tuesday next at Four in the Afternoon. This is proved by Mr. Gellibrand, and is Botra, No. 12. 1680, Nov. 18. To the Agents of the Lord Baltimore, about Mr. Penn's Grant. Council-Chamber, the 18th Nov. 1680. Gentlemen, On the 14th of June last, I sent you, by Order of the Lords of the Committee for Plantations, the Petition of Mr. Penn, who prays a Charter for making a Settlement Northerly of Mary- land ; and I received your Answer, in behalf of my Lord Bal- timore, on the 23d following, which I accordingly laid before the Committee ; since which time their Lordships have perused the Draught of Letters Patent which Mr. Penn desire? to have passed unto him, and which, he alledges, was put into youi 1 /Hands, according to their Directions, in order to receive your Objections, if you had any to make; wherefore, their Lord- ships command me to give you notice of the Meeting of a Com- mittee on Tuesday next at Four in the Afternoon, for the further Consideration of this Business, and that, in case you have nothing more to offer to their Lordships at that time, they will, thereupon, take their final Resolution concerning the said Patent. I am This is proved by Mr. Gellibrand, and is Botra, No. 13. 1680 Nov. 20. For my honoured Friend William Blaythwaite Esq ; Secretary to the Right Honourable the Lords Commissioners for Trade and foreign Plantations, at Whitehall, St. James's 20th Nov. .(80.) Sir, At two of the Clock this Day, I met with your Letter to me, of the 18th Instant, and a Copy in it (which I here re. turn you) of some Part of Mr. Penn's Patent for Land in America. I am. first, to premise to you, that, in cases of this Nature, it were most proper to have the Advice of Council learned in the Laws, for settling the Boundaries of any new Patent, which may be liable to encroach on those of another's Possession. But in regard I remember well the Duke's Direc- tions, (expressed, in a former Letter from me to you, by his Royal Highness's Order, dated 16th October (80.) I shall frankly tell you my Thoughts thereupon, viz. That I believe the De- 352 PENNSYLVANIA AND MARYLAND scription by Lines, of Longitude (especially) and of Latitude, are very uncertain, and so also is it under what Meridian the Head of Delaware River lies, which, I do believe, hath never yet been observed, by any careful Artist; But it being the Duke's Intentions, that Mr. Penn's Grant be bounded on the East-side by Delaware River, and that his South Limit be 20 or 30 Miles beyond Newcastle (which Colony of Newcastle is Northwards, and distinct from Maryland, that being under the Jurisdiction of Lord Baltimore) which Extent Northwards of Newcastle Colony, we guess, may reach as far as the Begin- ning of the 40th Degree of Latitude; therefore, if Mr. Penn's Patent be •so worded, as to leave Newcastle 20 or 30 Miles beyond it free, and to be bounded on the East by Delaware River; I think this is all the Caution that needs, as to the Duke, who will not concern himself how far North or West Mr. Penn's Patent takes in. I am, Sir, your very affectionate Friend and humble Servant, Jo. Werden. This is proved by Mr. Grelli- brand, and is Botra 14. 1680, Nov. 23. To my Honoured Friend William Blaythwaite Esq ; Secretary to the Right Honourable the Lords Commissioners for Trade and foreign Plantations, Whitehall. St. James's 23d Nov. (80.) Sir, Mr. Perm having fallen into Discourse with me of his Concerns in America, since 1 wrote to you on Saturday, 1 have told him the Substance of what I wrote, and he seems to fear that if his South Limits be strictly set at 20 or 30 Miles North from Newcastle Town, he shall have so little of the River left, as very much to prevent the Hopes he hath of improving the rest within his Patent, but, on the other Side, he is willing that 12 English Miles North of Newcastle be his Boundary, and believes that that Distance will fall under the Beginning of the 40th Degree of Latitude; I have already signified to you all I know of the Duke's Mind herein which is, in general, to keep some convenient Distance from Newcastle, northwards, for a Boundary to that Colony, but I confess, I do not understand why'tis precisely necessary to insist on just such a Number of Miles, more or less, in a Country of which we know so little, and when all the Benefits are intended to this Patentee that others enjoy ; so as I submit this point to their Lordships Con- sideration, and do not think it material for me to add more at present from, Sir, your very affectionate Friend and Servant, Jo. Werden. This is proved by Mr. Gellibrand, and is Botra 15. 1680, Decemb. 16. Whitehall, Thursday the 16th Day of Dec. 1680. present. BOUNDARY QUESTION. 353 Prince Rupert, Lord Privy Seal, Marquis of Worcester, Earl of Clarendon, Earl of Halifax, Lord Chamberlain, Earl of Bridge- water, Lord Chief Justice North, Mr. Secretary Jenkins, Mr. Hyde. Mr. Penn is called in, concerning the Patent desired by him, and upon reading the Letters from Sir John Werden touch- ing the Boundaries wherein his Royal Highness may be con- cerned, their Lordships think it best, for the Settlement thereof, that Sir John Werden be desired to attend, on Saturday next in the Afternoon; at which time the Agent of the Lord Baltimore is likewise ordered to give his Attendance, as to what con- cerns his Lordship's Propriety of Maryland. This is proved by Mr. Gellibrand, and is Botra No. 6. 1680, Dec. 16. Copy of a Summons to the Lord Baltimore's Agent Mr. Burk, and to Sir John Werden, about Mr. Perm's Patent. Council- Chamber, 16th Desember, 1680, Sir, The Right Honourable the Lords of the Committee for .Trade and foreign Plantations have appointed to hear the Exceptions of my Lord Baltimore, against the Draught of Mr. Penn's Patent, formerly sent to you, upon Saturday the 18th of this Instant at Four in the Afternoon; and you are desired not to fail in your Attendance at that time, their Lordships being then resolved to proceed to a Resolution in that Matter. I am. Mr. Burk Sir, The Lords of the Committee of Trade and Plantations find it neces- sary, in order to the Settlement of Mr. Penn's Patent, to dis- course with you concerning it, and have therefore commanded to desire you to attend on Saturday the 18th Instant at Four in the Afternoon. This is proved by Mr. Gellibrand, and is Botra No. 16. (1680, Dec. 16.) Mr. Penn's Boundaries, settled by my Lord Chief Justice North. As the same is bounded on the East by Delaware River from the Beginning of the 12 Miles Distance Northwards of Newcastle Town fortieth Degree of Northern Latitude unto the three and fortieth Degree of Northern Latitude, if the said River doth ex- tend so far Northward ; But, if the said River shall not extend so far Northward, then, by the said River, so far as it doth extend, and from the Head of the said River, the Eastern Bounds are to be determined by a Meridian Line, to be drawn from the Head of the said River unto the said three and fortieth Degree. The said Lands do extend Westward five Degree in Longitude, to be computed a Circle drawn at 12 Miles Distance from Newcastle North- 23— Vol. XV. 354 PENNSYLVANIA AND MARYLAND wards and Westward unto from the said Eastern Bounds, and the said Lands are bounded, on the North, by the Beginning of the three and fortieth Degree of Northern Latitude, and, on the South by by a straight Line the Beginning of the fortieth Degree of Northern Latitude, and then, on, Westwards, to the Limit of Longitude above mentioned. This is proved by Mr. Gellibrand, and is Botra No. 17. (1680, Dec. 16.) About Mr. Penn's Boundaries. May it please your Lordships, I have considered the Petition of Mr. William Penn, praying his Majesty to grant unto him a Tract of Land in America, lying North of Maryland, bounded on the East by Delaware Bay, to the Westward by the Indian Countries, as Maryland ; and do not find that such Boundaries do intrench upon the Lord Baltimore's Province of Maryland, which is bounded South- ward by a Part of Virginia, Eastward by the main Ocean and Delaware River, and Northward by that Part of Delaware River that lieth in the 40th Degree of Latitude, and so, by a direct Line, Westward, through the Continent. And the Patent granted to his Royal Highness of New York, being bounded Westward by the East Side of Delaware Bay, is sufficiently dis- tinguished from theGrant desired by Mr. Penn which is bounded Eastward by Delaware Bay, or River ; so that that Tract of Land desired by Mr. Penn, seems to be undisposed of by his Majesty, except the imaginary Lines of New-England Patents, which are bounded, Westward ly, by the main Ocean, should give them a real, though impracticable Right, to all those vast Terri- tories. But, I am further to offer unto your Lordships, that there are several Dutch and Swedish Plantations, which have been long under the English Government, that lie scattered on the Westward of Delaware River, and some of them perhaps within the Bounds of Mr. Penn's Petition, and have, for a long time, either acknowledged the Protection of his Royal Highness, who took them from the Dutch upon the Conquest of New- York, or of the Lord Baltimore, near whose Borders they are settled : And hoAv far Mr. Penn's Grant may, in this Consideration, concern his Neighbours, is most humbly sub- mitted to your Lordships. This is proved by Mr. Gellibrand. and is Botra No. 18. 1680, January 15. Whitehall, Saturday the 15th of January 1680-1. Present, Prince Rupert, Lord Privy Seal, Marquis of Worcester, Lord Chamberlain, Earl of Bridge water, Earl of Clarendon, Vis- count Fauconberg, Mr. Finch, Lord Chief Justice North, Mr. BOUNDARY QUESTION. 355 Chancellor of the Exchequer. The Boundaries of Mr. Penn's Patent, settled by my Lord Chief Justice North, with the Alterations of Sir John Werden are read and approved. And their Lordships appoint Wednesday next, at Nine in the Morn- ing, to review the whole Patent. This is proved by Mr. Grelli- brand, and is Botra No. 6. 1680, Jan. 22. Whitehall, Saturday the 22d of January 1680-1. Present, Lord Privy Seal, Earl of Clarendon, Mr. Hyde, Lord Chief Justice North, Mr. Seymour, Mr. Secretary Jenkins. Upon reading the Draught of a Patent for Mr. Penn, constituting him abso- lute Proprietary of a Tract of Land in America, Northerly of Maryland, The Lords of the Committee desire my Lord Chief Justice North to take the said Patent into his Consideration, and to provide, by fitClauses therein, that all Acts of Sovereignty as to Peace and War, be reserved unto the King; and that all Acts of Parliament, concerning Trade and Navigation and his Majesty's Customs, be duly observed ; and, in general, that the Patent be so drawn, that it may consist with the King's In- terest and Service, and give sufficient Encouragement to Plant- ers to settle under it. A Paper being also read, wherein my Lord Bishop of London desires that Mr. Penn be obliged by his Patent to admit a Chaplain of his Lordship's Appoint- ment upon the Request of any Number of Planters; the same is also referred to my Lord Chief Justice North. This is proved by Mr. Gellibrand, and is Botra No. 6. 1680, Feb. 24th. Whitehall, Thursday the 24th of February 1680-1. Present, Lord President, Earl of Conway, Earl of Clarendon, Earl of Chesterfield, Mr. Secretary Jenkins. A Draught of a Patent for Mr. Penn is read, and there being a Blank left for the Name, thair Lordships agree to leave to Nomination of it to the K^ng. The Lord Bishop of London is desired to prepare the Draught of a Law, to be passed in this Country, for the settling of the Protestant Religion. This is proved by Mr. Gellibrand, and is Botra No. 6. 1680, Feb. 24. May it please your Majesty, In obedience to your Majesty's Order, signified unto us by the Earl of Sunderland on the first of June last, We have pi'epared the Draught of a Charter, con- stituting William Penn Esq; absolute Proprietary of a Tract of Land in America thei-ein mentioned, which we humbly pre- sent to your Majesty for your Royal Approbation, leaving also the naming of the said Province unto your Majesty, which is 356 PENNSYLVANIA AND MARYLAND most humbly submitted. This is proved by Mr. Gellibrand, and is Botra No. 19. 33 Car. II. 1680. Charles the Second, by the Grace of God King of England, Scotland, France and Ireland, Defender of the Faith, &c. To all whom these Presents shall come Greeting. Mar. 4. Whereas Our Trusty and Well-beloved Subject William Penn Esq; Son and Heir of Sir William Penn deceased, out of a com- mendable Desire to enlarge our English Empire, and promote such useful Commodities, as may be of Benefit to us and our Dominions, as also to reduce the savage Natives, by gentle and just Manners, to the Love of Civil Society and Christian Reli- gion, hath humbly besought Leave of us to transport an ample Colony unto a certain Country, herein after described, in the Parts of America, not yet cultivated and planted ; And hath likewise humbly besought our Royal Majesty to give, grant and confirm all the said Country, with certain Privileges and Jurisdictions requisite for the good Government and Safety of the said Country and Colony, to him and his Heirs for ever; Know ye therefore, that we, favouring the Petition and good Purpose of the said William Penn and having Regard to the Memory and Merits of his late Father in diverse Services, and particularly to his Conduct, Courage and Discretion, under our dearest Brother James Duke cf York, in that signal Battle and Victory fought and obtained against the Dutch Fleet com- manded by the Heer Van Obdam in the Year 1665, In Consideration thereof, of our special Grace, certain Knowledge and meer Motion, have given and granted, and, by this our present Charter, for us, our Heirs and Successors, do give and grant, unto the said William Penn, his Heirs and Assigns, All that Tract or part of Land in America, with all the Islands therein contained, as the same is bounded, on the East,- by Delaware River, from 12 Miles Distance Northwards, of New castle Town unto the three and fortieth Degree of Northern Latitude, if the said River doth extend so far Northwards ; but if the said River shall not extend so far Northward, then, by the said River, so far as it doth extend, and, from the Head of the said River, the Eastern Bounds are to be determined by a Meridian Line to be drawn from the Head of the said River unto the said three and fortieth Degree; The said Lands to extend Westward five Degrees in Longitude, to be computed from the said Eastern Bounds; and the said Lands to be bounded, on the North, by the Beginning of the three and BOUNDARY QUESTION. 357 fortieth Degree ot Northern Latitude, and, on the South by a Circle, drawn, at 12 Miles Distance from Newcastle, Northwards, and Westwards, unto the Beginning of the fortieth Degree of Northern Latitude, and, then, by a straight Line, Westward, to the Limit of Longitude above mentioned. We do also give and grant, unto the said William Penn, his Heirs and Assigns, the free and undisturbed Use and Continu- ance in, and Passage into, and out of, all and singular Ports, Harbours, Bays, Waters, Rivers, Isles, and Inletts, belonging unto, or leading to and from the Country or Islands aforesaid ; and all the Soyl, Lands, Fields, Woods, Underwoods, Mountains, Hills, Fenns, Isles, Lakes, Rivers, Waters, Rivulets, Bays and Inletts, situate or being within, or belonging unto, the Limits and Bounds aforesaid ; together with the Fishing of all Sorts of Fish, Whales. Sturgeons, and all Royal and other Fishes in the Sea, Bays, Inletts, Waters or Rivers within the Premises, and the Fish therein taken, and also all Veins, Mines and Quarries, as well discovered as not discovered, of Grold, Silver, Gfems and Precious Stones, and all other whatsoever, be it Stones, Metals, or of any other Thing or Matter whatsoever, found or to be found, within the Country, Isles, and Limits aforesaid. And him the said William Penn, his Heirs and Assigns, we do, by this our Royal Charter, for us, our Heirs and Successors, make, create and constitute the true and absolute Proprietaries of the Country aforesaid, and of all other the Premisses. Sav- ing always to us, our Heirs and Successors, the Faith and Allegiance of the said William Penn, his Heirs and Assigns, and of all other the Proprietaries, Tenants and Inhabitants, that are, or shall be, within the Territories and Precincts afore- said ; And saving also, unto us, our Heirs and Successors, the Sovei-eignty of the aforesaid Country. To have, hold, possess and enjoy the said Tract of Land, Coun- try, Isles, Inletts, and other the Premisses, unto the said William Penn, his Heirs and Assigns, to the only proper Use and behoof of the said William Penn, his Heirs and Assigns, for ever, To be holden of us, our Heirs and Successors, Kings of England, as of our Castle of Windsor in our County of Berks, in free and common Soccage, by Fealty only for all Services, and not in Capite or by Knight's Service. Yielding and paying, therefore, to us, our Heirs and Succes- sors, two Beaver Skins, to be delivered at our said Castle of Windsor, on the first Day of January in every Year ; And also, the fifth Part of all Gold and Silver Ore which shall from time to time happen to be found within the Limits aforesaid, clear of all Charges. 858 PENNSYLVANIA AND MARYLAND And, of our further Grace, certain Knowledge and meer Motion, we have thought fit to erect, and we do hereby erect, the aforesaid Country and Islands into a Province and Seig- niory, and do call it Pensilvania, And so, from henceforth, we will have it called, &c. Original Charter under the Great Seal. It may be proper to observe here, that there is, at the Board of Trade, a very beautiful Map of Maryland, but very ill drawn, of which we have proved a Copy ; it must have been, at least, as ancient at this Time, because it takes no notice at all of Pensilvania; By it, the Eastern Side of the Peninsula is plainly left as void and unsettled, whereas all the other Parts are ex- tremely full of Names of Places. This Map lays down neither Cape Cornelius, not Cape Hinlopen, and it makes the Line of the 40th Degree compleat to be a little above Newcastle Town, but a great deal above the Heads of both Bays, and it makes the apparent Isthmus or Neck, which joins the Peninsula to the main Continent, to be about 18 Miles below Newcastle: but, although a beautiful Map to look at, it's done with no sort of Truth. We have proved a Copy of this Map, by Mr. Mathias, and it is Exhibit, Botra No. 25. 1681. Mar. 30. From the New York Records, the Entry of a Letter, dated at New York, and directed to the Justices and Court at the Whorekill: It's signed only shortly A. B. (which we shall see by and by was Anthony Brockholts the Commander, left there by Sir Edmund Andros) He tells them he has received theirs of the 21st, with a Complaint of several Misdemeanours against the Clerk of the Court, tor which they sayd they had been obliged to turn him out; But you had done well (says he) had you sent the Cause hither, before you suspended him, it being a Matter rather becoming the Power of some higher Judica- ture, and not so fitting for yourselves, who were the Accusers, to judge of ; however, I am inclinable to believe you did not do it without full Examination into the Truth ; and, in hopes of Amendment for the future, am willing to pass it by; to which you have made a good Step in the Choice of William Clark, a Person I judge capable enough, and could well approve of for a Continuance, were he not one of your Bench, which is not practicable in any Part ot this Government; however, he may officiate till further Order. New York Records, No. 1. Fol. 119. Apr. 8. At a Court held in Newcastle, Present Captain John Lewin, his Royal Highness's Agent, the Justices and Captain Cantwell the Sheriff, Captain Lewin produced his Commission from the BOUNDARY QUESTION. 359 Duke, and, understanding it had been publickly read here in Court, demanded whether any body questioned the same, but none appearing it was ordered that it should be recorded. New- castle Records, No. 11. Fol. 87. Apr. 23. From the Kent Records, a Bill of Sale, acknowledged in open Court, and recorded, whereby John Briggs, of St. Jones' County in the Province of New York, assigns some Patent and the Benefit of it, unto Henry Stevenson. Kent Records, No. 14. Fol. 14. Apr. 23. From the Kent Records, an Entry of a Bond of this Date, whereby, according to that Court's Order, the Appellant Corne- lius Verhoof, with two Securities, entered into Bond to the Court of St. Jones's County, of 200Z. New York Money, for answering the Appeal granted in the Action of Johannis Kypp and Raynier Williams, at the next High Court of Assizes at New York, and abiding the final End and Determination of that Court. And on the other hand, another Bond from Johannis Kypp and Partners to the said Court of St. Jones's County, in 2001. New York Money, conditioned to appear and answer the said Appeal at the next Court of Assizes at New York, and to abide by the final Determination of that Court. Kent Records, No. 14. Fol. 17. May. 6. A Re-survej', made by Ephraim Herman, Surveyor, for John Barentson, according to a Patent from Governor Lovelace, of Land granted to Geritt Sanderson, and by him sold to the said John Barentson, lying on the West side of Delaware River above Newcastle, at a Place called Swanwick. Newcastle Re- cords, No. 11. Fol. 88. July 19. At a Meeting of the Justices of St. Jones's County, Ephraim Herman, the Surveyor, made Returns of the following Surveys, made for divers Persons there named, according to the several Warrants from this Court directed to him ; Then they enumer- ate the Names of 23 Persons, and their respective Quantities of Land, which altogether amount to 14,247 Acres. Those 23 Certificates, Plotts, and Surveys, were overlooked and perused by the Magistrates, and were by them allowed, and the Clerk John Brinckloe ordered to cause the same to be recorded upon the Records, and, after that, to certify to the Governor, on every of the said Certificates, that they were approved of by the Court ; and then to be sent to New York, for further Con- firmation thereof by Patent. Kent Records, No. 14. Fol. 18. 360 PENNSYLVANIA AND MARYLAND Aug. 15. From the New York Records an Order, dated in New York, signed shortly A., B. bat there said to be made by the Com- mander in Chief, directed to the Magistrates, Court and Sheriff at Deal alias Whorekill, Delaware; recites, that Complaint had been made to the Commander, that Cornelius Verhoof, though dismist from being Clerk of the Court, and another appointed in his stead, detains and refuses to deliver the Records and Papers belonging to the said Court; Therefore, in the King's Name authorising and requiring the Magistrates, Court, and Sheriff, to demand them, to search for them in all Places, and, if found, to deliver them to William Clark, the present Clerk; but if not found, to bind Verhoof over, to the general Court of Assizes, to answer the same. New York Records, No. 1. Fol. 119. 1681. Aug. 21. From New York Records the following Entry. These follow- ing Accounts recorded for Mr. Philip Wells in behalf of Sir Edmund Andros. New York, Anno 1681. Aug 21. Account of Debtors standing out, &c. for Account of his Royal Highness James Duke of York, &c. Among other Articles in said Ac- count of outstanding Debts to his Royal Highness is the fol- lowing one, For Quit-Rents at Delaware Ephraim Herman is to give account of. New York Records, No. 1. Fol. 120. Aug. 27. From the New York Records, the Duke of York's Order, dated at Edinburg, directed to Lieutenant Brockholls. Being informed that most, if not all the Commissions of the Peace and Magistrates, in the City and Province of New York, and Dependencies, do expire, ere long; I signify to you, that the present Justices and Magistrates are to continue in the Exercise of their respective Functions until further Order; and in case of any Want of them, by Death or otherwise, their Places to be supplied, from time to time, by you and the Council. New YorK Records, No. 1. Fol. 120. Octob. 5. In the Kent Records, an Entry of an Act of the Oeneral Court of Assizes held at New-York this Day, attested by the Clerk of the Assizes, that in the Cause Cornelius Verhoofe Appellant Johannes Kypp and Raynier Williams Defendants, the Appel- lant not appearing to prosecute his Appeal according to Law, the Court ordered him to be nonsuited, and to pay Costs. And, underneath that Entry, another Entry or Minute ; Exe- cution taken out upon the Order of April Court 1681, Kent Records, No. 14. Fol. 19. BOUNDARY QUESTION. 361 Nov. 11. From the Newcastle Records, a Letter, writ by the Justices, directed to the Right Honourable Captain Anthony Brockholts, Deputy Governor in New York, acquainting him, that at their ordinary Court Day, on the 1st Instant, Francis Jackson, Servant to Abraham Man, appeared in Court, and there delivered a Paper signed by his Master, whom we resolved to send for and proceed against; to which purpose we issued a Warrant, but the said Man made his Escape from the Under-Sheriff, and keeps at present in Pensilvaniaand Burlington; We send your Honour, enclosed, the Copies of all the Papers and other Pro- ceedings, and desire your Honour's further Order and In- structions for our further Rule in this and the like Occasions. The Proclamation which Mr. Moll brought along with him, is published. Newcastle Records, No. 11. Fol. 89. Nov. 21. From New York Records, an Entry of Deputy-Governor An- thony Brockholl's answer, signed by him, and directed to the Magistrates and Court at Newcastle Delaware. Says he has re- ceived theirs of the 11th, with the enclosed Writing about Abra- ham Man, whom you did well to prosecute, but your Officers were not so careful as they ought, in the Service of the Warrant. His Offence being great, I have wrote to the Governor of Pen- si lvania, that, if he abscond in that Government, Enquiry may be made, and he delivered to you. If he be submissive, you may bind him over, on good Sureties, to the next General Court of Assizes, to answer the same; but, if he be stubborn, send him hither, that he may not longer disturb the Peace and Quiet of your Parts, which shall always endeavour to preserve; hope you'll do your Parts, that all Offenders in the like Nature may have their due Punishment, and the Authority of the Govern- ment maintained and supported. New York Records, No. 1. Fol. 120. Note — The same Letter is also entered in Newcastle Rec- ords, No. 11. Fol. 91. Dec. 6. At a Court held before the Justices in the Town of Newcastle, upon several Petitions presented to them, the Court granted to Benjamin Gumly to take up 200 Acres, Ephraim Herman 400 Acres, Casparus Herman 400 Acres, and to Joseph Burnham a Lot within the Town of Newcastle. Newcastle Records, No. 11. Fol. 90. Jan. 26. From the New York Records a Letter from Captain Brock- holls, dated in New lork, and directed to Mr. Ephraim Her- 362 PENNSYLVANIA AND MARYLAND man, owns the Receipt of his of the 16th and 27th of December, and tells him that he has sent him enclosed an Order for col- lecting and receiving the Quit-Rents, and Arrears, due in Dela- ware River and Dependencies, as formerly, as well of what was in Arrear for that Part of the River now called Pensilvania; Of which have wrote to Governor Markham, desiring him to assist you therein. As to the Desire of the Magistrates, to ioin, to lay out the twelvs Miles above Newcastle, it is not within their Cognizance, but, if necessary, and desired here, shall ap- point as may be most proper. New York Records, No. 1. Fol. 121. Same Day. Captain Brockholl's Commission or Warrant, dated in New York, and directed to Ephraim Herman, Collector and Receiver of the Quit-Rents in Delaware River, recites that he had been formerly appointed Collector and Receiver of the Quit-Rents due in Delaware River and Dependencies ; and several Sums being due and in Arrear for the same, as well in that Part of the River now called Pensilvania, as the other Parts thereof; he therefore authorises Herman to continue to collect and re- ceive the same, till further Order; remitting it to Captain Brockholts, together with an Account thereof, as often as Op- portunity. New York Records, No. 1. Fol. 121. Same Bay. Captain Brockholl's Letter, dated at New York, to the Gov- ernor of Pensilvania, acquainting him what Authority he had continued to Hermans; and being informed that several Per- sons, now under your Government, are in Arrear for the same, do desire your Favour and Assistance to the said Collector in the Receipt thereof; assuring you I shall be ready, on ail Oc- casions, to serve you, &c. New York Records, No. 1. Fol. 121. Feb. 1. From Sussex Records, the Entry there, of a Bill of Sale, from John Oakey of Deal County in the Province of New York, to John Kiphaven and Alexander Moulston of a Lot of Land. Sussex Records, No. 17. Fol. 15. March 12. From Kent Records, A Deed of Conveyance of Lands, ac- knowledged in open Court, and recorded from John Burton to Daniel Jones, wherein the said John Burton describes himself of St. Jones's in the Province of New York. Kent Records, No. 14. Fol. 20. 1682. June 21. From Kent Records, A Contract, acknowledged in open BOUNDARY QUESTION. 363 Court, and recorded, being for Sale of Lands on the North Branch of Duck Creek, from John Hilliard to Simon Hirons; wherein Hilliard writes himself of St. Jones's County in the Province of New York, and, when Hilliard obtains a Patent for the same, out of the Offlc? at New York, he shall make further Assurance. Kent Records, No. 14. Fol. 21. Aug. 11. From Kent Records, and Assignment, acknowledged in open Court, and ordered to be recorded, from Thomas Heathard of the County of St. Jones in the Province of New York, to Samuel Mott. Kent Records, No. 14. Fol. 22. Aug. 14. From Kent Records, A General Release, ordered to be recorded made from William Buorn of St. Jones's County in the Prov- ince of New York, to Nicholas Greenberry. Kent Records No. 14. Fol. 23. Aug. 15. From Kent Records, a Letter of Attorney, ordered to be re- corded, from John Beaman and Nicholas Greenberry, both of Maryland, unto Captain John Brings of St. Jones's County, in the Province of New York, to demand and recover a Bond Debt due from William Buorn, of the County of St. Jones, in the Province of New York. Kent Records, No. 14. Fol. 24. Aug. 21. An Original Indenture of Release, under the Hand and Seal of the Duke of York, being made between the said Duke of York, of the one Part, and William Penn Esq; Son and Heir of Sir William Penn Knight, deceased, of the other Part. It recites, that the Duke, being willing and desirous, that the Tract, or Part of Land called Pensilvania, therein after men- tioned, should be granted and assured unto the said William Penn, and his Heirs, and, for that Purpose, having signified and declared his Assent thereunto, to the Right Honourable the Lords of Committee of Plantations; His Majesty, by his Letters Patent under the Great Seal, bearing Date the 4th of March, in the 33d Year of his Reign, had granted unto the said William Penn, and his Heirs, all that Tract, or Part of Land in America, with the Islands, therein contained, and thereunto belonging, as the same is bounded and described in, and by ths said Patent, and therein called Pensilvania, together with sev- eral Royalties, Franchises, Jurisdictions and Privileges therein contained. It further recites, that, in Consideration of 5s. and for the Considerations therein after mentioned, the said Duke was willing and pleased to confirm, and make any 364 PENNSYLVANIA AND MARYLAND further Assurances of the said Tract of Land and Premi- ses, unto the said William Penn, and his Heirs. Now, his said Royal Highness, out of a special regard to the Memory, and many faithful and eminent Services, heretofore performed by the said Sir William Penn to his Majesty, and his Royal Highness, and for the better encouraging the said William Peun to proceed in the cultivating and improving the said Tract of Ground and Islands therein, and there unto be longing, and reducing the savage and barbarous Natives thereof to Civility, and for the Good- will which is said Royal Highness hath, and beareth unto the said William Penn, and for other good Causes and Considerations, doth, for him and his Heirs, remise, release, and for ever quit Claim, unto the said William Penn, (in his peaceable Possession now being) his Heirs and Assigns, all the Estate, Right, Title, Interest, Rents, Services, Duties, Payments, Property, Claim and Demand what- soever, of his said Royal Highness, of, into, or out of the said Tract of Land, and all and singular other the Lands, Islands, Tenements, Hereditaments, and other things comprised in the said Letters Patent, and within the Bounds and Limits therein mentioned ; to hold to the said William Penn. and His Heirs, to the only Use and Benefit of the said William Penn, his Heirs and Assigns forever. The original Indenture under the Duke's Seal, (above 60 Years old,) witnessed by Jo. Werden and Geo. Mann. Aug. 24. Another original Indenture of Feoffment, under the Hand and Seal of the Duke of York, between the Duke of the one Part, and the said William Penn of the other Part, whereby (without any Recitals) the said Duke, out of a special Regard to the Memory, and many faithful and eminent Services then- tofore performed by Sir William Penn to his Majesty and the Duke, and for the Good -will which the Duke had and bore to the said William Penn, and in consideration of 10s. and for other good Causes and Considerations, did bargain, sell, enfeoff and confirm, unto the said William Penn, his Heirs and Assigns for ever. All that the Town of Newcastle, otherwise called Delaware, and all that Tract of Land, lying within the Compass or Circle of 12 Miles about the same, scituate, lying, and being upon the River Delawarejn America, and all Islands in the said River Delaware, and the said River and soil thereof, lying North of the Southermost Part of the said Circle of 12 Miles about the said Town. Together with all Rents, Services, Royalties, Franchises, BOUNDARY QUESTION. 365 Duties, Jurisdictions, Liberties and Privileges, thereunto be- longing, and all the Estate, Right, Title, Interest, Powers, Property, Claim and Demand whatsoever, of the Duke, of, in, or to the same, or to any Part or Parcel thereof. Saving always to the Duke, his Agent and Servants, free Use of all Ports, Ways and Passages, into, through, and out of the bargained Premises, and every Part and Parcel thereof, To have and to hold the said Town and Circle of 12 Miles of Land about the same, Islands and Premises, with their Appur- tenances, unto the said William Penn, his Heirs and Assigns, to the only Use and Behoof of the said William Penn, his Heirs and Assigns, for ever, Yielding, and paying yearly unto the Duke, his Heirs and Assigns, the Sum of 5s. at the Feast of St. Michael only. And the said William Penn, for himself, his Heirs and As- signs, covenants and grants to the Duke, to pay the said yearly Rent of 5s. at the Days whereon reserved. And the Duke, for himself, his Heirs and Assigns, covenants and grants with the said William Penn, his Heirs and Assigns, that the Duke, his Heirs and Assigns, will, at any time hereafter during the Space of 7 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 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 assur- ing the said Town, and Circle of 12 Miles of Land about the same, and Islands, and all otlier the Premises, with the Appur- tenances, unto the said William Penn, his Heirs and Assigns forever, as by the Council learned in the Law, of the said William Penn, his Heirs or Assigns, shall be devised, advised, or required. And the Duke thereby made, constituted, and appointed John Moll of Newcastle aforesaid Esq; and Ephraim Herman of Newcastle aforesaid Gent, jointly, and either of them sever- ally his Attorneys ; and gives and grants unto them, or either of them, full Power and Authority for him, and in his Name and Stead, into all and singular the Premises, 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 whole to enter 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 Attorneys, sufficiently au- 366 PENNSYLVANIA AND MARYLAND thorised to receive and take the same; and him or them to leave in the quiet and peaceable Possession thereof, according to the true Intent and Meaning of these Presents. And the Duke allows of, ratines and confirms, whatsoever his said Attorneys shall lawfully do, or cause to be done, in and about the Premises, by Virtue of these Presents, to be as good and effectual in the Law, to all Intents and Purposes, as if the Duke had done the same in his own Person, or had been present at the doing thereof. Signed and sealed by the Duke of York, and witnessed by Jo. Werden and Greo. Mann. This original Indenture is markt to be inrolled in sundry Places, and at sundry Times, viz. in the Office of Records for the Province ot New York, on 21 Nov. 1682, in the Court of Exchequer in Trinity Term 1684, (the 36th of King Charles II.) in the Office of the Auditor of the Exchequer sans Date thereto, and in the Office of the Clerk of the Pells, on 10 Oct. 1688, in the fourth of King James the Second. As by the Original Indenture of Feoffment. We have also a Copy thereof from the Records in New York, in New York Records, No. 1. Fol. 122. Aug. 24. Another Original Indenture of Feoffment, under the Hand and Seal of the Duke of York, between the Duke of the one Part, and the said William Penn of the other Part, whereby, (without any Recitals,) the said Duke, out of a special Regard to the Memory and many faithful and eminent Services then- tofore performed by the said Sir William Penn to his Majesty and his Royal Highness, and for the Good-will which the said Duke had and bore to the said William Penn, and for the Con- sideration of 105. and of the Rent and Covenants herein after reserved and contained, does bargin, sell, enfeoff and confirm, unto the said William Penn, his Heirs and Assigns for ever, All that Tract of Land, upon Delaware River and Bay, be- ginning 12 Miles South from the Town of Newcastle, other wise called Delaware, and extending South to the Whore- kills, otherwise called Capin Lopen, together with free and undisturbed Use and Passage into, and out of all Har- bours, Bays, Waters, Rivers, Isles and Inlets, belonging to, or leading to the same ; Together with the Soil, Fields, Woods, Underwoods, Mountains, Hills, Fenns, Isles, Lakes. Rivers, Rivulets, Bays and Inlets, scituate in, or belonging unto the Limits and Bounds aforesaid. Together with all Sorts of Minerals, and all the Estate, In- terest, Royalties, Franchises, Powers, Privileges and Immuni- BOUNDARY QUESTION. 367 ties whatsoever, of the Duke therein, or in or to any Part or Parcel thereof. Saving and reserving to the Duke, his Agents and Servants, free Use of all Ports, "Ways and Passages into, through, and out of the Premises. To hold to the said William Penn, his Heirs and Assigns, to the only Use of the said William Penn, his Heirs and As- signs for ever. To be held of his Royal Highness and his Heirs, as of their Castle of New York, in free and common Soccage, Yielding yearly to the said Duke, his Heirs and Assigns one Rose at Michaelmas, if demanded. And the said William Penn, for himself, his Heirs and As- signs, covenants and agrees with the Duke, his Heirs and As- signs, that he the said William Penn, his Heirs or Assigns, shall and will, within one Year next, erect a publick Office of Reg- istry upon the Premises, wherein he or they shall and will, amongst other Things, truly account, set down, and register, all Rents and other Profits, which he or they shall make, raise get, or procure, of, in, or out of the said Premises, and shall, at Michaelmas, yearly, pay and deliver to the Duke, his Heirs and Assigns, a Moyety of all Rents, Issues and Profits, as well extraordinary as ordinary, as shall be made or raised by reason of the Premises. And, if the same shall be behind by the Space of 20 Days after the same ought to be paid, then, and so often, it shall be lawful for the Duke, his Heirs and Assigns, to enter into, and upon the said Premises, and there to distrain, and the Dis- tresses to take and detain, until the said Moyety and Arrears thereof shall be paid, together with all Costs and Damages for the same. The follow the Duke's Covenants for further Assurance, and his Appointment of Attorneys to deliver Seisin, in the very same Words as in the last Feoffment which was made of New- castle. Signed and sealed by the Duke, and witnessed by Jo. Werden and Geo. Mann. This original Indenture is markt to be re. corded in the Office of Records for the Province of New York, on 21 Nov. 1682. As by this original Indenture of Feoffment also. We have likewise a Copy thereof from the Records in New York, in NewYork Records, No. 1. Fol. 124. 1682, Oct. 10. From the Records in Kent County, the Entry of a Bond from Geo. Cullin, of the County of St. Jones's in the Province of 368 PENNSYLVANIA AND MARYLAND New York, to Geo. Martin of the same County and Province, conditioned for making over to the said Martin, within a Year, in open Court for the County of St. Jones's, 500 Acres of Land on the South Side of Mispillion Creek. Kent Records, No. 14. Fol. 25. Note. You are pleased to observe the Feoffments from the Dnke were dated (here) but 24 Aug. 1682, and some Time it must have taken for Mr. Penn to prepare and go over with them. Oct. 27, 28. An Entry taken from the Newcastle Records in the following Words ; " On the 27th Day of October, 1682, arrived before the "Town of Newcastle in Delaware, from England, William "Penn Esq; Proprietor of Pensilvania, who produced two "certain Deeds of Feoffment, from the illustrious Prince James, "Duke of York and Albany, &c. , for this Town of Newcastle, "and 12 Miles about it, and also for the two lower Counties, "the Whorekills and St. Jones's which said Deeds bore Date "24th August 1682, and, pursuant to the true Intent, Purpose, "and Meaning of his Royal Highness in the same Deeds, he "the said William Penn received Possession of the Town of "Newcastle, the 28th of October, 1682. Newcastle Records, No. "11. Fol. 92." Oct. 28. Another Entry, taken from the Newcastle Records, viz. " New- castle, the 28th October, 1682. Memorandum, That the Day "and Year first above written, William Penn Esq; by Virtue "of an Instrument of Indenture, signed and sealed by his Royal "Highness James Duke of York, &c. did, then and there, de- "mand Possession and Seisin, of John Moll Esq; and Ephraim "Herman Gent. (Attorneys constituted by his said Royal Higb- "ness) of the Town of Newcastle, otherwise called Delaware, "with 12 Miles Circle or Compass of the said Town; That the "Possession and Seisin was accordingly given, by the said At- torneys, to the said William Penn, according to the usual "Form, by Delivery of the Fort of the said Town, and leaving "the said William Penn in quiet and peaceable Possession "thereof, and also, by the Delivery of Turf and Twig, and "Water and Soil of the River Delaware; and that the said Wil- "liam Penn remained in the peaceable Possession of the Pr«- "mises, as Witness our Hands the Day abovesaid. Thomas "Holme, William Markham, Arnoldus de la Grange, Geo. "Ferman, Ja. Graham, Samuel Land, Richard Tugelo, Joseph "Curtis, John Smith." Newcastle Records, No. 11. Fol. 93. BOUNDARY QUESTION. 369 Note. We have, in this present Cause, (58 Years aftar this Transac- tion) examined old Witnesses, who were present at Mr. Penn's taking Possession, and at the Delivery of Seisin to him. Oct. 28. Another Entry from the Newcastle Records, viz. " We under "written, being Inhabitants of the Town of Newcastle upon "Delaware River, haviug heard the Indentures read, made be- "tween his Royal Highness James Duke of York and Albany, "&c. and William Penn Esq; Governor and Proprietor of the "Province of Pensilvania, &c. wherein the said DuKe trans- "ferreth his Right and Title to Newcastle, and 12 Miles Circle "about the same, with all Powers, and Jurisdictions, and Ser- vices thereunto belonging, &c. unto the said William Penn; "and having seen, by the said Duke's Appointed Attorneys, "John Moll and Ephraim Herman, both of Newcastle, Posses- sion given, and by our Governor, William Penn Esq; Posses- sion taken, whereby we are made subjects, under the King, "to the said William Penn Esq; we do hereby, in the Presence "of God, solemnly promise to yield to him all just Obedience, "and to live quietly and peaceably under his Government. " Witness our hands this 28th Day of October, Anno 1682. "Arnoldus de la Grange, Joh. D'haes, R. D. Burch, Will. "Sempill, John Homez, Hendrick Lemmens, Joseph Moore, "Jean Bavins, Jonas Arskin, Gyles Barret, Peter Clason, Sam- "uel Land." Newcastle Records, No. 11. Fol. 93. We have a written Map or Plans of the Town of Newcastle, apparently very ancient; It appears to have been writ by some Foreigner, and Mr. Hamilton gives some Account of its having been of the Hand Writing of this Arnoldus de la Grange, before named, and of its having been found, by a dead Sur- veyor of Newcastle County, long ago, in the Surveyor General's Office in Newcastle. The Date is most uncertain, but it shews that the Town anciently was laid out regularly in Streets, and many of the Town Lots then taken up. at the Time of this Map ; and indeed, it is observable, on many ot the Grants of Town Lots in Newcastle, herein before stated, that those Lots are said to be lying in such and such Streets, as we find mentioned in this old Map. The Exhibit is Newcastle Map. Oct. 29. From the Records in Sussex County. The Entry of a Notifi- cation, signed William Penn, dated at Upland, and directed to William Clarke, Luke Watson, John Roads, John Avery, Halmanus Wiltbank, and Alexander Molistone; he notifies to 24— Vol. XV. 370 PENNSYLVANIA AND MARYLAND them, that the Duke of York had, by Feoffment, dated 24 Aug- 1682, past and conveyed to him, from 12 Miles Southward of Newcastle upon Delaware River, to Cape Henlopen, together with the Powers and Jurisdictions thereunto belonging, reserv- pig unto himself one Moyety of the Rent thereof, whereby the said William Penn becomes, also, Proprietary and Governor of the before-mentioned Tract of Land ; He desires them to meet him, next Thursday, at the Town of Newcastle, being the 2d of November, where he intends to hold a General Court for the settling the Jurisdiction of these, and your Parts, in which they will oblige him. If there be any Persons of Note, or others, that desire to be present, they may come freely, ^ hich you are desired to communicate. Sussex Records, No. 17. Fol. 16. Nov. 7. Prom the Records in Sussex County, Commission from Wil- liam Penn Esq ; dated in Newcastle, whereby he, as Proprietary, and Governor of Pensilvania, Newcastle, St. Jones, Whorekill alias New Deal, with their proper Liberties, does, in the King's Name, constitute Luke Watson, William Clark, John Roads, John Avery, and Halmanus Wiltbank, or any three of them, to be Justices of the Peace, and Court of Judicature for the County of Whorekill alias New Deal; this Commission to be in Force for one Year, or till further Order. Sussex Records, No. 17. Fol. 17. Same Day. From the Records in Kent County, another like Commission from the said William Penn, under the like Titles, and dated at Newcastle, appointing Frank Whitwell, William Durvall, John Hillyard, John Briggs, and Robert Hart, or any three of them, to be Justices of the Peace, and Court of Judicature for the County of St. Jones, and an Act of Entry, that it was pub- lisht in Court, and ordered to be recorded. Kent Records, No. 14. Fol. 26. Nov. 8. From the Records in Kent County, A Writ, under Mr. Penn's Hand and Seal, directed to Peter Baucomb, High Sheriff of St. Jones's County, requiring him to summon all the Freeholders, within the Precinct of his Office, to meet on the 20th Instant, and to elect and chuse, out of themselves, seven Person, of most Note for Wisdom, Sobriety and Integrity, to serve as their Deputies and Representatives, in General Assembly, to be held at Upland, in the Province of Pensilvania, the 6th of December next, and then and there to consult with him, for the common Good of the Inhabitants of that Province, and the adjacent BOUNDARY QUESTION. 371 Counties of Newcastle, St. Jones's, Whorekill alias New Deal, under his Charge and Jurisdiction, and to make a true and just Return to Mr. Penn. Kent Records, No. 14. Fol. 26. Same Day. From the Records in Sussex County, A Commission from Mr. Penn, appointing John Vynes to be Sheriff of the Count} 7 of Whorekill alias New Deal. Sussex Records, No. 17. Fol. 18. Same Day. Also Mr. Penn's like Writ, to him dir acted, to summon all the Freeholders of that County, to elect seven Persons as their Representatives, for the General Assembly. Sussex Records No. 17. Fol. 18. Nov. 14. From the Sussex Records, an Entry of a Paper signed and sealed by several of the Justices by Mr. Penn appointed for that County, whereby, in pursuance of their Commission, they do, in the Presence of God, declare and promise to act justly, and faithfully discharge their Trust. Sussex Records, No. 17. Fol. 19. Nov. 20. From the Records in Kent County. Peter Bawcomb signs and seals, before the open Court, that he being appointed Sheriff of the County of St. Jones's, by Mr. Penn, he declares, and solemnly promises, in the Presence of God, justly to exe- cute his Office, and discharge his Trust. Kent Records, No. 14. Fol. 27. Same Day. From the Records in Kent County, five of the Justices for St. Jones's County being appointed by Mr. Penn, sign and seal the like solemn Declaration, on their Parts. Kent Records, No. 14. Fol. 27. Nov. 21. From the New York Records, it appears that the two Feoff- ments from the Duke of York to Mr. Penn, were on this Day, entered in their Records. New York Records, No. 1. Fol. 123. and Fol. 126. Same Day. From the New York Records, A Declaration, by the Com- mander in Chief and Council, dated in New York, recites both the Duke's said Feoffments to Mr. Penn, and the Duke's Ap pointments, therein contained, of Persons to deliver Posses- sion of the said Pemises to Mr. Penn, as by the said Indentures, here produced and shewn to us, and by us well approved of 372 PENNSYLVANIA AND MARYLAND and entered in the publick Records of this Province, does ap- pear. And we, being thereby fully satisfied of the said William Penn's Right to the Possession and Enjoyment of the Premises, have, therefore, thought fit and necessary to signify and declare the same to you, to prevent any Doubt or Trouble that might arise or accrue, and to give you our Thanks for your good Services, done in your several Offices and Stations, dur- ing the Time that you remained under his Royal Highness's Government; expecting no further Account, than that you readily submit and yield all due Obedience and Conformity to the Powers granted to the said William Penn in and by the said Indentures; in the Performance and Enjoyment of which we wish you all Happiness. This Declaration is directed, To the several Justices of the Peace, Magistrates, and other Officers, at Newcastle, St. Jones, Deal, alias the Whorekill, at Delaware, or, within any of the Bounds and Limits above-mentioned. New York Records, No. 1. Fol. 127. We have another Entry of this Declaration, which is there signed by the Commander Anthony Brockholls, and counter- signed, by Order in Council, John West Clerk of the Council ; which is entered in Newcastle Records, No. 11. Fol. 92. From the Newcastle Records, we have an Entry of a Certifi- cate, or Declaration, signed John Moll, (but without Date) wherein he relates that Mr. Penn, at his first Arrival from England by the Town of Newcastle, in the Month of October 1^82, sent a Messenger ashore, to give Notice to the Commis- sioners of his Desire to speak with them aboard ; that Mr. Moll (being then left the first in Commission by Sir Edmund Andros, Governor under the Duke of York of all his Territories in America) did go aboard, with some more of the Commis- sioners; when Mr. Penn shew'd him the two Feoffments, the one for the County of Newcastle, with 12 Miles Distance North and South thereunto belonging [please to observe Mr. Moll's understanding of the Terms of that Feoffment] The other for, &c. with Powers of Attorney to me, and Ephraim Herman de- ceased, to deliver Possession to Mr. Penn ; but the said Herman, being gone from borne, was not aboard, at that Time; I there- fore, desired, from Mr. Penn, 24 Hours to consider with Herman and the rest of the Commissioners about it ; In which Time we unanimously agreed to comply with the Duke's Orders, Where- upon, by Virtue of the Powers given to us by the said Letters of Attorney, we did give and surrender, in the Duke's Name, to Mr. Penn, actual and peaceable Possession of the Fort at Newcastle, by giving him the Key thereof to lock upon himself alone the Door: which being open'd by him again, we did deliver, also, to him, one Turf, with a Twig upon it, a Por- BOUNDARY QUESTION. 373 ringer with River Water and Soil, in Part of all that was spe- cified in the said Indenture, and according to the true Intent and Meaning thereof; And, a few Days after that, we went to the House of Captain Edmund Cantwell, at the south Side of Apo- quemining Creek, by Computation, above 12 Miles Distance from the Town of Newcastle, as being Part of the Two lower Counties mentioned in the Duke's other Feoffment; and, after we had shewn to the Commissioners of those Counties, the Power and Orders given to us as aforesaid, we askt them if they could shew any Cause why we should not proceed to act and do there, as we had done at Newcastle? And, finding no manner of Obstruction, we made, then and there, in the Duke's Name, the same Manner and Form of Delivery, as we had done at Newcastle ; Which acting of us, was fully accepted and well approved of, by Anthony Brockholl, then Commander in chief, and his Council, at New York, as appears by their Declaration dated 21 November 1682. From which Jurisdiction we had our Dependance, all along, ever since the Conquest, until we had made the above related Delivery to Mr. Penn, by Virtue of the Duke's Orders and Commands. Newcastle Records, No. 11. Fol. 94. Nov. 21. From the Sussex Records, the Return made by John Vines Sheriff, to Mr. Penn, that, in obedience to his Warrant of the 8th Instant, he did summon all the Freeholders, and that they, with a general Vote, did elect and choose Edward Southrin, William Clark, Alexander Draper, John Roades, Luke Wat- son, Nanthaniel Walker, and Cornelius Verhoof. Sussex Re- cords, No. 17. Fol. 19. Dec. 6. An original Paper, or Petition, signed by those particular seven Persons for New Deal alias Whorekill, by six more for St. Jones, and by five more for Newcastle, directed to the Hon- ourable Proprietor and Governor of Pensilvania, intitled, The humble Request of the Freeholders of the Three Countys of Newcastle, Jones, and New Deal alias Whorekill, humbly de siring that they may be favoured with an Act of Union, by the Governor and Assembly, for their Incorporation in and with the Province of Pensilvania, in order to their Enjoyment of all the Rights and Privileges of the aforesaid Province ; and that they might, for ever after, be esteemed and accounted as Free- men of the before-named Province ; This being our Desires and humble Request in the Assembly, we have desired the Presi- dent and two other Members of the Upper Counties, Part of this Province, to present it to your Honour ; and if we are so happy 374 PENNSYLVANIA AND MARYLAND to obtain our Request, we will, for ever, acknowledge it, and in all Faithfulness subscribe ourselves your in all lawful Obe- dience. This Original Paper is proved by Patrick Baird, and is Pensilvania Exhibit D D. 1682, Dec. 6. From the Records of Pensilvania— An Act of Assembly with this Title, The Laws of Pensilvania and Territories thereunto belonging, made by the Governor and Freemen of the Province, in a General Assembly held at Chester alias Upland, the 6th of December 1682. An Act of Union for annexing and uniting of the Counties of Newcastle, Jones's, and the "Whorekills alias New Deal, to the Province of Pensilvania. It recites the Let- ters Patent for Pensilvania, granted by King Charles to Mr. Penn, and that the Duke of York had released his Right and Claim to every Part of that Province to Mr. Penn, whereby he was become the undoubted and rightful Proprietary and Gov- ernor of that Province, and was thereby so recognized and ac- knowledged. It also recites that, as a beneficial and requisite Addition to the said Territory, it had pleased the Duke of York to grant to Mr. Penn all that Tract from 12 Miles Nothward of Newcastle on the River Delaware, down to the South Cape commonly called Cape Henlopen, and by the Proprietary and Governor now called Cape James, lying on the West side of the said River and Bay, formerly possest by the Dutch, and bought by them of the Natives, and first surrendered up, on Articles of Peace, to the Lieutenant-Governor Colonel Nicholls, and a second time, to Sir Edmund Andros, Lieutenant-Gov- ernor to the said Duke, and had been by him quietly possest and enjoyed ; and also the said River of Delaware, and Soil thereof, and all Islands therein, lately cast into three Counties, called Newcastle, Jones's and Whorekill alias New Deal, together with all Royalties, Powers and Jurisdictions thereunto belonging, as by two Deeds of Feoffment, dated 24th August 1682, may appear. And for that, there must always be a People, before there can be a Government, and that People must be united and free, in order to settle and encourage them for the Prosperity of the Government ; and since the Inhabitants of that Tract, lately passed from the Duke, are not yet under the same Capacity with those in Pensilvania ; and, reciting the said Request of the Freemen of the said County, and as the Union of two distinct People, that are under one Government, is most desirable in itself, and beneficial to the Publick, and that it cannot be so durably maintained, to the mutual benefit of each other, as by making them equally Sharers in Benefits and Privileges. It is enacted by the Proprietary and Governor, by BOUNDARY QUESTION. 375 and with the Advice and Consent of the Deputies of the Free- men of the said Province and Counties, in Assembly met, that the Counties of Newcastle, Jones's, and Whorekill alias New Dale, shall be, and are, annexed unto the Province of Pensil- vania, as of the proper Territory thereof ; and the People therein shall be governed by the same Laws, and enjoy the same Privi- leges, in all Respects, as the Inhabitants of Pensilvania do or shall enjoy from time to time therein. This is proved by Charles Brockden Deputy-Master of the Rolls, to be a true Copy, and is in Pensilvania Records, No. 7. Fol. 2. Bee. 18. From the New York Records, the Entry of a Letter from Cap- tain Brockholls to Sir John Werden. Sir, I received your's of the twenty fourth of August past the 4th of December : but, too late to assist or serve Mr. Penn in giving Possession of what his Royal Highness has been pleased to grant him; being before possest thei'eof by the Persons iinpowered in the Body of the Deeds, which Mr. Penn, having since been here, hath shewn and recorded. Am ready to obey all his Royal Highness's Com- mands, and serve his Interest, but fear what left of his Province not able to defray the Charge. I am, &c. New York Records, No. 11. Fol. 126. Dec. 21. From Kent County Records, Proprietary Penn's Commission, or Authority, under his Hand and Seal, dated at Chester, and directed to the Justices of the Peace for the County of Kent; wherein he orders and appoints them, in open Court to receive all Petitions from Persons wanting to take up Land amongst them, to grant Warrants to the Surveyor to measure the same, not to exceed 300 Acres to a Master of a Family, nor 100 to a single Person at one single Penny per Acre, or Value thereof in the Produce of the Countv ; which done the Surveyor to make his Return to the Court, and the Court make their Return into my Secretary's Office : all Lands formerly granted, and not taken up and settled within the Time limited by the Methods of your own Court, shall be accounted vacant Land ; all Persons, for the future, that shall have Grants, shall be limited to seat in a Year, else the Grants to be void ; Endeavour to seat the Lands by way, of Townships, as 3,000 Acres amongst 10 Families; if single Persons 1,000 among 10 of them, laid out in a long Square, 5 or 10 of a side, and a Way, of 200 Feet broad, left between them, for a Highway in the Township, for the future Good and great Benefit of the County. Newcastle Records, No. 11. Fol. 28. 376 PENNSYLVANIA AND MARYLAND Dec. 25. From Kent County Records, Proprietary Penn's Commission, under his Hand and Seal, dated at Chester, in the second Year of his Government, appointing seven Persons to be Justices of the Peace in the Jurisdiction of the County of Jones's, which my Will and Pleasure is shall, from henceforth, be called by The Name of Kent; the Extent whereof shall be from the South- side of the most Northerly main Branch of Duck-Creek North- wards, and Southward to the North-side of the mam Branch of Mispillion Creek called the Three Runs; and they, or any four of them, to be a Court of Judicature; This Commission to be of Force for one Y T ear, or till further Order. Newcastle Records, No. 11. Fol. 29. Same Day. Governor Penn's Letter to those Justices, exhorting them most pathetically, to do Justice by virtue of their Commission, and also telling 'em that he thinks fit that an exact Catalogue be returned to him, of the Names of all the People of their County, Masters, Mistresses, Servants, Parents, Children, also the Number of Acres each Freeholder has, and by whom, and when, granted, &c. Newcastle Records, No. 11. Fol. 30. Same Day. Proprietary Penn's Commission under his Hand and Seal dated at Chester, in the 2d Year of his Govenment, in like manner appointing seven Persons, viz. William Darvall, Luke Watson, Norton Claypole, John Roades, Edward Southrin. Robert Hart, and John Kyphaven, to be Justices of the Peace in the Jurisdiction of the County of the Whorekills, which he wills, from henceforth, shall be called by the Name of Sussex; the Extent whereof shall be from the main Branch of Mispillion Creek, called the Three Runs, Northwards, and Southwards to Assawament Inlett, reputed and accounted Cape Henlopen, which said Cape Henlopen, I will, from henceforward, have called by the Name of Cape James ; And you or any four of you to be a Court of Judicature. This Commission to be in Force for a Y T ear or till further Order. Sussex Records, No. 17. Fol. 20. Note well. Mr. Penn had not been two Months in the Country, and he scarce foresaw the present Dispute, yet. then, nay three YVeeks before, in the Act of Union, he called Cape Henlopen, just where the ancient Maps called it, and where Lord Baltimore's map, and our Map, (used 50 Years afterwards in 1731, and 1732) called it. BOUNDARY QUESTION. 377 Same Day. Another Entry of Proprietary Penn's Letter, sent to the Jus- tices of Sussex County in totidem verbis as the former. Sus- sex Records, No. 17. Fol. 21. Same Day. Another Entry of Proprietary Penn's Orders and Limitations about taking up Land in totidem verbis, as, the former sent to Kent County. Sussex Records, No. 17. Fol. 22. Same Day. Another Commission from Proprietary Penn, constituting William Clark to be Clerk of the Court of Sessions for the County of Sussex, and Register of the said County. Sussex Records, No. 17. Fol. 23. Dec. 26. From the Sussex Records, an Order, under Proprietary Penn's Hand and Seal, to the Justices of the Peace of the County of Sussex, that, before any Land be surveyed, for any other Person, they issue a Warrant, to the Surveyor, to lay out, for the Duke of York, in their County or Precincts, 10,000 Acres of Land for a Manor, and 10, 000 Acres for a Manor for Governor Penn ; and he would have the Duke's Manor lie on the North side of Assawarmet Inlett, as near to Cape James as may be, and his own Manor to be between the Bounds of Cedar-Creek and Mispillion-Creek, or in the most convenient Place towards the North side of the County. Sussex Records, No. 17. Fol. 23. Dec. 26. From the Kent Records, another like Order under Proprie- tary Penn's Hand and Seal, to issue a Warrant to the Surveyor to lay out in their County or Precincts, 10,000 Acres for a Manor for the Duke of York, and 10,000 Acres for a Manor for himself, in the best Places for sound and good Land and Water. Kent Records, No. 14. Fol 81. Jan. 9. From the Sussex Records, an Entry of a Declaration, signed and sealed by the Justices which had been appointed by Pro- prietary Penn, whereby they acknowledge him to be their right- ful Proprietor, and make a solemn Promise to discharge their Commission faithfully, and if they should do otherwise, then to suffer and undergo the same Fine or Punishment as if they had taken an Oath. Sussex Records, No. 17. Fol. 20. Jan. 16. At a Court held for the County of Kent under Proprietary Penn, the Court orders the Clerk to give out a Warrant, di- 378 PENNSYLVANIA AND MARYLAND rected to the Surveyor, to lay out 10,000 Acres of Land for the Duke of York, on the Rich Rigge, in the Road to Chop- lanct, and to the Heads of the Branches of the Murther-Creek or where they will in any other clear Land ; it being for a Manor for the Duke of York, granted by a special Order from the Proprietary and Court for the same. And they make another like Order, for a Warrant to lay out 10,000 Acres for Proprietary Penn, at the South-side of the main Branch of Duck-Creek, and so towards Jones's Creek. Kent Records No. 14, Fol. 81. Same Day. All the Justices of Kent County, sign and seal a like Declara- tion of Acknowledgment of Mr. Penn's being their Proprietary, and a solemn Promise faithfully to execute his Commission, under Pain of the same Fine and Punishment as if they had taken an Oath. Kent Records, No. 14. Fol. 32. Feb. 13. A Deed recorded in Sussex County whereby Luke Watson of Sussex County, in consideration of 30Z. Sterling, conveys to Sam- uel Gray also of Sussex County formerly called the Whorekill, a Parcel of Land of 196 Acres called St. Giles's on the West-side of Delaware Bay, West from the Whorekills about a Mile from Pagan- Creek, which Piece of Land had been heretofore granted on 24th June 1676, by the Duke of York by his Grant under the Great Seal of New York, used for granting of Land ; free of all Incumbrances, the Rent and Services reserved to the Duke of York and his Assigns only excepted. Sussex Records. No. 17. Fol. 24. Feb. 21. An Original Assignment, made by way of Endorsement upon the Indian Purchase which was made the 10th of July 1680, whereby that Purchaser, John Moll, assigns all his Right, Title and Interest to the therewithin mentioned, unto Proprie- tary Penn; Moll's own Plantation of 200 and odd Acres of Land in White-Clay Creek only excepted. This is proved by Patrick Baird and is the Pensilvania Exhibit. F F. 35° Car. II, 1682. From the Chappel of the Rolls, a Copy of Letters Patent granted to James Duke of York his Heirs and Assigns (without any Recital) of. Mar. 22. All that the Town of Newcastle, otherwise called Delaware, and Fort therein or thereunto belonging, situate, lying and being between Maryland and New Jersey in America; and all BOUNDARY QUESTION. 379 that Tract of Land, lying within the Compass or Circle of 12 Miles about the said Town, situate, lying and being upon the River of Delaware ; and all Islands in the said River of Dela- ware; and the said River and Soyl thereof, lying North of the Southeruiost Part of the said Circle of 12 Miles about the said Town; and all that Tract of Land, upon Delaware River and Bay, beginning 12 Miles South from the said Town of Newcastle otherwise called Delaware, and extending South to Cape Lopin ; together with all the Lands. Islands, Soil, Rivers, Harbours, Mines, Minerals, Quarries, Woods, Marshes, Waters, Lakes, Fish- ings, Hawkings, Huntings. Fowlings, and all other Royalties, Privileges, Profits, Commodities and Hereditaments to the said Town, Fort, Tracts of Land, Islands and Premises, or to any or either of them, belonging or appertaining, with their and every of their Appurtenances, scituate, lying and being in America. . And all the King's Estate, Right, Title, Interest, Benefit, Advantage, Claim and Demand whatsoever of in or to the said Town, Fort, Lands or Premises, or any Part or Parcel thereof; and the Reversion and Reversions, Remainder and Remainders thereof ; together with the yearly and all other Rents, Revenues and Profits of the Premises, and of every Part and Parcel thereof. To hold to the said Duke of York his Heirs and Assigns for ever, to be held of the King his Heirs and Successors, as of the Manor of East Green wich in free and common Soccage, and not in Capite or by Knight' s-Service. Yielding and rendering, and the Duke of York for himself his Heirs and Assigns covenants and promises to yield and render, to his Majesty his Heirs and Assigns, yearly, four Beaver Skins, when demanded. And the Crown thereby grants to the Duke of York, his Heirs and Assigns, Power to govern, punish, make Laws, &c. (and reserves appeals to the Crown) and to appoint and revoke Governors, Officers, Ministers, &c. This Copy is proved from the Rolls by Paris, and is Rocha No. 6. Note. The Defendant cannot bring himself in his Answer to be- lieve that ever these lower Counties were expressly granted by the Crown to the Duke of York, but it is plain from the above that they were. But then he says, that this Grant was made to the Duke after his Feoffments were executed to Mr. Penn, and it is certain that it was,almost, not quite, seven Months after the Date of the Duke's Feoffments to Mr. Penn; and the Defendant supposes that the Duke obtained this Grant 380 PENNSYLVANIA AND MARYLAND for himself, and not for Mr. Penn, and never made any subse- quent Conveyance to Mr. Penn after this Patent : But that is not to be suppos'd, nor can legally be suppos'd ; the legal ana the fair Presumption is, that the Duke, who, not 7 Months be- fore, had covenanted to procure further Assurance, did obtain this new express Grant of the 3 lower Counties in Perform- ance of his Covenants, and for the Benefit of Mr. Penn ; and, as this new Grant must either have been intended for the Bene- fit of the Duke himself, (as the Defendant insists) or of Mr. Penn, (as we insist) we have a Fact that will determine that Question : 33° Car. II 1682, Mar. 22. For, we have the very Original Charter itself, under the Great Seal, in our Custody, ready to produce, which, if the Duke had intended for himself, and to defeat our Title by, he would have kept, and not Mr. Penn, who was, at this Time of passing it, and for a considerable Time longer, over in America. As to Mr. Penn' s obtaining further Assurance from the Duke, after this express Grant to the Duke, within the 7 Years, the Duke, soon after Mr. Penn's Return to England, became King, and afterwards abdicated, before the 7 Years expired. Besides, as will be observed by and by, the particular Bounds of the lower Counties were not settled, much less the Lines, to divide them from Maryland, run. And, had the Duke of York continued a Subject, Mr. Penn might have compelled him to have made further Assurance which being the Case The Crown, (which was never advised to take Advantage of defective Titles in America if Possession and Improvement had followed) will never, we trust, be advised to it, in this Case, after near 80 Years Possession, and such an Im- provement, and fine Colony as this settled, by one private Gen- tlemen, to the Ruin of his own private Fortune and Family, and without a Shilling Expence (in any Shape whatever) ever contributed by the Crown, or the Publick; by which Improve ment, and the great Privileges Mr. Penn granted to the Settlers, he has, in Effect, purchased to the King, many Thousands of new Subjects, being Foreigners, who have fled from Tyranny and Oppresson in their own native Countries, thither for an Asylum and Place of Refuge. And this Colony is now so finely settled, that it is not 2 Years ago since they furnisht the King with 895 Men, for the Expedition against the Spanish West Indies ; afar greater Number than was furnisht by any other Colony in America. This is, doubtless, not in the present Causo, but is a Digression from it, however hope this short Digression may be excused, on so great a Part of the Plaintiff's Case. BOUNDARY QUESTION. 381 And thus have we travelled thro' this very long 5th Chap- ter, from the new Charter granted to the Duke of York in 1674 down to the Time of Mr. Penn's being in full Possession of Pensilvania and the lower Counties, in 1682. Chap. VI. An Account of what past (in America) in the Years 1683, 1684, and 1685, {exclusive of what past in England during those Years. ) 1683. Apr. 23. From the Records in Kent County at a Court held for the County of Kent by Commission from William Penn, Proprietary and Governor of Pensilvania and Territories thereunto belong- ing, Captain William Markham Deputy Governor, present the Commissioners. The Proprietary made his Speech to the People and afterwards, the Deeds of these lower Parts was read, before the People, in open Court ; then the Laws of the Government read, in open Court. Kent Records No. 14. Fol. 33. July 26. From the Original Returns in the Surveyor General's Office in Pensilvania, a Return, signed by J. Barkstead by Order of William Clark, that, by Virtue of a Warrant from William Penn, Proprietary and Governor of the Province of Pensilvania, and the Territories thereunto belonging, bearing Date the 4th Day of May last to him directed, by William Clark, Chief Sur- veyor of the Counties of Sussex and Kent, Layd out, for James Duke of York, a Tract of Land, lying and being: on the North Side of Assawormenett River and Inlett, in the Territories of the Province of Pensilvania, in the County of Sussex, beginning at a Corner markt White Oak, standing in a Hommack, near the Mouth of the Inlett of Assawormenett, and running, from thence, up the River, bounded therewith, on several Courses, 1620 Perches, &c. Layd out for 10, 000 Acres of Land. Surveyed the 26th of July 1683, by me J. Barkstead by Order of William Clark. This is proved to be a Copy by Benjamin East-burn Esq ; Surveyor General, and is in the Exhibits from the Sur- veyor General's Office, No. 8. Fol. 1. Note. Proprietor Penn had ordered the laying out this Tract for the Duke in this very Place, so long ago as 26 December 1682, as has appeared in his Order to the Justices of Sussex County of that Date. And this very Spot comes to the Cape Henlopen which we insist on, and is very material to be observed. Sept. 17. An old worn out Copy of a Commission supposed to have 382 PENNSYLVANIA AND MARYLAND been signed and sealed by Lord Baltimore, wherein the said Lord Baltimore took the Title of Proprietor of Maryland, and directed that Commission to his dear Cousin and Councillor Geo. Talbot Esq ; and appointed the said Talbot to repair,forth- with, to the Skoolkill at Delaware, and in Lord Baltimore's Name to demand of William Penn Esq; or his Deputy, all that Part of Land, on the West Side of the said River, that lyeth to the Southward of the 40th Degree Northerly Latitude, according to an East Line run out, from two Observations, the one taken on 10 June 1682, and the other the 27th of September 1682, in Obedience to his Majesty's Commands, exprest in a Letter of the 2d of April 1681 ; which Commands were, at that time, re- jected by the Agents of the said Penn, notwithstanding that (by several Letters and Writings under their Hand it may ap- pear) they promist a Compliance with his Majesty's Commands aforesaid ; and, for what you shall do herein, this shall be to you a sufficient Power. Pensilvania Exhibit B. B. spoke to by Patrick Baird. Sept. 24. Upon the same Paper, an old worn out Copy of a Demand, sup- posed to be signed and sealed by Geo. Talbot, wherein He, by Vir- tue of his Lordship's Commission, whereof he said that, which was there above written, was a true Copy, He the said Talbot did, in the Name of Lord Baltimore, demand, of Nicholas Moore, Deputy to William Penn Esq; all the Land, lying on the West Side of Delaware River, and to the Southward of the 40th Degree of Northerly Latitude, according to a Line run East, from two Observations, &c. ut supra; The Land, so claimed by me for Lord Baltimore's use, being Part of the Province of Maryland, granted to his Lordship's Father by King Charles the 1st of sacred Memory, and now wrongfully detained by the said William Penn from his Lordship; And in Witness that I make this Demand 1 have hereunto set my Hand and Seal. This is also spoke to by Patrick Baird, and is the Pensilvania Exhibit B. B. Octob. 28. From the Original Returns in the Survevor-General's Office in Pennsilvania, another Return signed by J. Barkstead by Order of William Clark, that, by virtue of a Warrant from Pro- prietary Penn, dated the of May last to him directed by Wil- liam Clark, Chief Surveyor of the Counties of Sussex and Kent, laid out for the said Proprietor Perm a Tract of Land, being on the South Side of Rehoboth Bay, in the Territories of the Province of Pensilvania, and in the County of Sussex, bound- ing, on one side, along the Line of the Duke of York's Manor, BOUNDARY QUESTION. 383 containing and laid out for 4,790 Acres of Land, survey'd the 28th October 1683, by me J. Barkstead, by Order of William Clark. This is proved to be a Copy by Ben. Eastburn Esq ; Surveyor- General, and is in the Exhibits from the Surveyor General's Office, No. 8. Fol. 1. Octob. 31. Upon the same Paper with the Copy of Lord Baltimore's Com- mission to Colonel Talbot, and with Colonel Talbot's Demand made by Virtue of such Commission, is an Original Paper signed by Proprietor Penn, of this Date, being his Answer to that Demand. In which Answer Proprietor Penn, First, takes notice that, a long with that Demand, Lord Baltimore should have sent some Letter or Memorial to state his Demand. Secondly he objects to the Stile and Language of the Commis- sion. Thirdly he says that he, nor any Deputy of his, do live on the West side of Skuilkill. Fourthly he says he was absent at New York, when this Commissioner came, and never did, nor will, commissionate his Deputy to treat and conclude his Inheritance, without his particular Directions and Command. Fifthly he says that Colonel Talbot is directed in the Com- mission to make his Demand according to a Line, which is said to be run in Obedience to his Majesty's Commands; and the King's Letter of 2 April 1681, expresly said that the Lord Bal- timore or his Agent should, together with Mr. Perm's Agent, agree the Latitude and then run the Line and bound the Pro- vinces; which (says Mr. Penn) is not yet done; for, those Ob- servations, and the Line run by them, are performed by Lord Baltimore and his Agents only, and therefore, not according either to the King's Commands, or to common Equity, for Mr. Psnn said He knew nothing of them. Sixthly, To pretend (as the Commission does) that Mr. Penn's Commissioners refused to comply with the said Letter is hard for him to do, for Lord Balti- more would have had them agreed to have taken an Observation upon the River Delaware, whereas the King's Letter (stating Mr. Penn's Bounds as they are exprest in his Patent) begins 12 Miles above Newcastle, upon the West side of Delaware River, so to run to the three and fortieth Degree of Northern Latitude upon the said River; which makes it impossible that Lord Baltimore should come within those Limits to take an Obser- vation, or to run a Line, in persuanceof the King's Commands in the said Letter; since, taking an Observation on Delaware River, (which, say they, he exprest) is a plain Violation of it. They further say, that they never refused, but prest. taking an Observation according to the King's Letter, which was grounded on the Bounds of Mr. Penn's Patent; and when 384 PENNSYLVANIA AND MARYLAND Lord Baltimore, and Mr. Perm's Agent, had agreed to meet at Newcastle, and to proceed according to the King's Letter, its true that Mr. Penn's Agent came not, and as true, that the Reason was, that Lord Baltimore called immediately, at Chi- chester alias Marcus Hook, as he went to Newcastle, and for- bade the Inhabitants to pay me Quit Rent, and named the Place by a new Name, before any Line was run, or any Obser- vation agreed ; which, being a declared Breach, both of the King's Commands, and of their Treaty, in the Opinion of Mr. Penn's Agent, the said Agent retused to meet next Day, about a Matter the Lord Baltimore had, in such a manner, already determined. Seventhly, But what fault soever they were in, Mr. Penn says that he is sure, that, before an Observation was agreed, or any Line was run, he came in himself, and sud- denly after waiting upon the Lord Baltimore, presented him with another Letter from the King, which he was so far from complying with, that he lookt upon the King as mistaken, and set his Patent in direct Opposition, and, to this day, would never hear of complying with it. Now, in Mr. Penn's Opinion, it was not proper to ground Lord Baltimore's Proceedings, upon a former Letter, in Neglect of a later Advice and Command from his Majesty. Nor does it look very just to make the Caution or Neglect of an Agent, in the Absence of his Principal, a Reason to proceed against his Principal when present with other Instruct- ions, without due Regard had to him or his Allegations. And Mr. Penn goes on thus, I must say, that, at Newcastle, when I prestthe Lord Baltimore to set in one House with his Council, and I would set with mine in another, that we might treat by written Memorials under our Hands, to prevent Mistakes, Ill- memory, or Ill-will, he refused, alledging he was not well. I then told him I would wave the Advantage, I thought I had, by the second Letter, and proceed to meet him at the place he de- sired, which was at the Head of Chesapeak Bay, and there try to find the 40th Degree of Northern Latitude, provided he would first please to set me a Gentleman's Price, so much per Mile, in case I should have no Part of the Bay by Latitude, that so I might have a Back-Port to this Province ; [Note By our present Agreement we have no Back-Port now into Chesapeak Bay ; many Miles, above that Bay. being, by the Agreement, yielded to Lord Baltimoi-e, in Considei-ation of the three lower Counties. ] This I writ according, to his Desire, and sent it after him. To sell he refused, but, started An Exchange of that Part of the Bay for the Lower Counties on the Bay of Delaware : This, I presume, he know I could not do. For his Royal Highness, had the One Half, and I did not prize the thing I desired at Such a rate : Soon after this meeting I understood he had BOUNDARY QUESTION. 385 publisht a Proclamation, some time before, to invite Peo pie to plant those Parts in my Possession under the Duke; and that also, before any Demand had been made, or our Friendly Treaty ended, &c. There I left him, expecting his News when he came to the Head of the Bay in September, as I thought he promised me; but instead of that, An Observation is taken, a Line run, and Trees markt, without my Notice, and a Demand made thereupon, and all grounded on the King's Letter of 2 April 81, in which I find no such Direction. And as to the Demand itself, of all the Land on Delaware River to the South of the 40th Degree, He has no Warrant to run his Line to the River, neither by the King's Letters, nor his own Patent, if he peruses it well, where he will find the Bay, but no River of Delaware. The Land demanded, is not a Part of the Province of Maryland, as exprest in the Demand, for, it is of the Jurisdiction of Delaware alias Newcastle; which is, by sev- eral Acts of the Assembly of Maryland, distinguisht and dis- owned from being any Part of that Province. [Those old Acts have been all in a Lump repealed in Maryland, on 15 September i704, as by Maryland Statute Book, Fol. 44; but they have made new Acts exactly to the same Purpose, there, since, as we shall shew in their Order of Time.] The Lord Baltimore has no Land given him by Patent, but what was implanted of any but Savage Natives; and this West Side of the River Delaware, before, and at, the passing of his Patent, was actually bought, and possest, by a Civil and Christian State in Amity with the Crown of England ; and by the Treaty of Peace in 53, between the English and Dutch, was Part of one Article of the Treaty that the Dutch should enjoy those Territories in America, of which this was a Member ; and we know Foreign Acquisitions, of that Time and Kind, continued firm, after his Majesty's Res- toration ; for Jamaica still remains to us, and Dunkirk itself was not rendered, but sold. But, if Lord Baltimore had a just Pretence to this Ri^er, and former Possession too, which he never had, yet, being by the Dutch taken, and by the King taken from the Dutch, it becomes the Conqueror's; a Ship taken by the Enemy, and possest but 24 Hours., if retaken by the Crown is Prize, and this Place was more than 24 Years in the Hands of the Dutch, not demanded of them; This made the Duke (upon the Opinion of Councill) take out fresh Patents, since the last Conquest, for his Territories in America; nor is Lord Baltimore in the Conditon of an ordinary Subject, (in whose Favour something might be alledged) for he has Regalia, Principality, as his Style shews, and I conceive he is bound to keep his own Dominions, or else lose them, and if lost to a For 25— Vol. XV. 386 PENNSYLVANIA AND MARYLAND eigner, and taken by the Sovereign, the Sovereign has the Right another Conqueror could plead. This is the present Jus Gen- tium, and Law of Nations, which, in Foreign Acqussts, pre- vaileth ; and the King, accordingly, has granted it under his Great Seal to the Duke, and if there was no Truth in this, it was actually another's before; and Connecticut Colony might put in for New York, as reasonably, as Lord Baltimore can for Delaware; their Patent having that Part of the Dutch Ter- ritory within its Bounds, on the same Mistake ; which is yet out of Dispute, from Lord Baltimore's own Patent, that says New England begins where he leaves, which, being at 40 Lati- tude, it follows, that New York, and Part of East and West Jersey and Pensilvania will fall to New England; Libera nos, JDomine ! He concludes, that the King, by Articles of Peace between him and Holland, is the allowed Owner of all that Terri - tory once called New Nethereland.of which this is a Part ; he has granted it by two Patents; and this in Controversy by one, under the Great Seal, to the Duke of York ; and the Duke, out of his Regard to the Services and Losses of my deceased Father, has interested me in Part of the same; so that he is Lord, and I am Tenant; of him I hold, and to him I pay my Rent (which his Governor of New York has now sent for) and for him I im- prove, as well as myself; and, therefore, I must take leave to refer Lord Baltimore to the Duke, who is, doubtless, of too much Honour to keep any Man's Right, and of too great Resolu- tion to deliver up his own ; whose Example I am resolved to follow. W. Penn, Philadelphia, 31 October 1683. This Paper is spoke to by Patrick Baird, and is Pensilvania Exhibit B B. Feb. 13. At a Court held by Commission from William Penn, Proprie- tor and Governor of the Province of Pensilvania and Territories .thereunto belonging, at Lewis for the County of Sussex, the In- dian Assawawmack, Harmattamale, acknowledged, in open Court, the Sale of 1.000 Acres of Land to Mr. Alexander Moli- stone; which Land is on the South-side of the Indian River. Sussex Records, No. 17. Fol. 26. 1684, Mar. 26. , From Sussex Records the Inrollment of a Patent granted by William Penn Esq ; as Proprietary and Governor of the Pro- vince of Pensilvania and Territories thereunto belonging (which Titles he constantly takes in his Acts, tho', being long, it is not always recited in this Abstract) whereby he grants in Fee, to William Emmitt, 400 Acres of Land in the County of Sussex, on the West side of Delaware Bay, and on the South side of Herring Ci-eek, proceeding out of the Middle Creek from Rehobotli Bay, BOUNDARY QUESTION. 387 To be held of the said William Penn and his Heirs, Proprietary as aforesaid, as of his Manor of Worminghurst in the said County; yielding and paying 4 Bushels of Wheat yearly. In Witness whereof I have caused these my Letters to be made patent, witness myself at Philadelphia in the 4th Year of my Government. Sussex Records, No. 17. Fol. 27. Same Bay. Another like Patent from him to Richard Stevens in Fee, for 550 Acres in the said County of Sussex, on the West side of Delaware Bay and on the North side of the River called the South River, formerly called the Indian River, rendering 5 Bushel and i of Wheat yearly. Sussex Records, No. 17. Fol. 28. Apr. 18. A Return of a Survey, made by J. Barkstead, by Order of William Clarke, by vertue of a Warrant from Sussex Court, directed to the said William Clarke Chief Surveyor, for Andrew Depree and John Barker, of a Tract of Land called Faire fields, on the South side of the Indian River, in the County of Sussex and Territories of the Province, adjoining to the Land of Thomas Hall, beginning, &c. containing and laid out for 645 Acres. Surveyor General's Office, No. 8. Fol. 2. Same Bay. Another like Return of a Survey, made by Do, by order of Do, by vertue of a Warrant from said Court, for John Okey, of Land called Mullatto Hall, on the South side of Indian River in the County of Sussex and Territories of the Province of Pen - silvania, beginning, &c. &c. containing and laid out for 801' Acres. Surveyor General's Office, No. 8. Fol. '6. Apr. 19. Another like Return of a Survey, made by Do, by Order of Do, by vertue of a Warrant from said Court, for John Croper, of Land called the Lady's Delight, on the South side of the Indian River, in the County of Sussex and in the Territories of the Province of Pensilvania, adjoining to the Lands of John Okey and John Barker, beginning, &c. containing and laid out for 1,000 Acres. Surveyor General's Office, No. 8. Fol. 2. 1684, May 12. Another like Return of a Survey, made by Do, by Order of Do, by vertue of a Warrant from said Court, for John Vines, of a Tract of Land called Barkin, on the South side of the In- dian River in the County of Sussex in the Territories of the Province of Pensilvania, on the South -East side of the first Fork of the said River called South- West Branch, beginning- 388 PENNSYLVANIA AND MARYLAND &c. containing and laid out for 500 Acres. Surveyor General's Office, No. 8. Fol. 4. \ Same Day. Another like Return of a Survey, made by Do, by order of Do, by order of a Warrant of said Court, for John Kipshaven of a Tract of Land called Nonsuch, on the South side of the Indian River, in the County of Sussex and in the Territories of the Province of Pensilvania, adjoining to the Land of John Okey, beginning, &c. containing and laid out for 500 Acres. Surveyor General's Office, No. 8. Fol. 3. May 13. Another like Return of a Survey, made by Do, by Order of Do, by vertue of a Warrant from said Court, for Alexander Maulstone, of a Tract called Cattle's Delight, on the South side of the Indian River, in the County of Sussex in the Ter- ritories of the Province of Pensilvania, adjoining to the Land of John Kipshaven, beginning, &c. containing and laid out for 1,000 Acres. Surveyor General's Office, No. 8. Fol. 49. Note well. These 8 very early Surveys, for the Duke of York, Mr. Penn himself, Andrew Depree and John Barker, for Johu Okey, for John Croper, for John Vines, for John Kipshaven, and for Alexander Maulstone, all on the South side of Indian River, and even down to Assawarmett, are very material to fix our Cape Hinlopen. June 1. Besides the foregoing Return made by Barkstead the Deputy Surveyor, there is, at the Foot of the Return for the Duke of York's Manor, the following additional Return, from William CJlarke the Chief Surveyor, viz. I hereby certify into the Pro- prietary's Secretary's Office, that I have caused to be surveyed and laid out, unto James Duke of York, the Land above men- tioned, and is accordingly entered and recorded in my Office. Given under my Hand at Lewis 1 June 1684. William Clarke Chief Surveyor of the Counties of Sussex and Kent. Surveyor General's Office, No. 8. Fol. 1. Same Bay. The like additional Return from the Surveyor General for Mr. Penn's own Tract. Surveyor General's Office, No. 8. Fol. 1. July 10. The like additional Return ior Andrew Depree and John Barker's Tract. Surveyor General's Office, No. 8. Fol, 2. BOUNDARY QUESTION. 38y Same Day. The like tor John Okey's. Surveyor General's Office, No. 8. Fol. 3. Same Day. The like for John Croper. Surveyor General's Office, No. 8. Fol. 2. Same Day. The like for John Vines. Surveyor General's Office, No. 8. Fol. 4. Same Day. The like for Alexander Maulstone. Surveyor General's Office, No. 8. Fol. 4. Nov. 2. From Sussex County., the Enrollment of a Patent granted by Thomas Loyd, James Claypole, and Robert Turner, Commis- sioners appointed under the Great Seal by William Penn Pro- prietary and Governor, &c. to grant and sign Warrants and Patents for Land ; granting in Fee unto John Croper his said particular Parcel of Land, containing 1000 Acres called Lady's Delight, so surveyed and returned as aforesaid, rendering Rent to the said Proprietary and his Heirs one Bushel of Wheat for each hundred Acres. Sussex Records, iNo. 17. Fol. 29. Feb, 1. The like additional Return from the Chief Surveyor for John Kipshaven's above mentioned 500 Acres. Surveyor General's Office, No. 8. Fol. 3. Along with the 8 Surveys below Indian River, mentioned in this Chapter, are returned Maps or Plans how those several Per- sons Lands lay : But they are, more sensibly, denoted and marked in the General Map of Pensilvania herein after mentioned, which is (as well as these particular Maps) proved in the Cause, and shew the material Scituation of these Tracts, so early granted out by Mr. Penn. But these particular Maps or Plans are in Records from the Surveyor General's Office, No. 8. 1685, Octo. 2. From the Records in the Master of the Rolls Office in Pensil- vania, the Copy of the following Indian Deed ; whereby Lare, Packenah, Jareckham. Sickais, Pettquessit, Towis, Esse- penaick, Petkhoy, Kekelapan, Ecomus, Machaloha, Methconga, Wissa, Powey, Indian Kings, Sachemakers, right Owners of all the Lands from Quing Quingus Creek, called Duck Creek, unto Upland, called Chester Creek, all along by the West-side of Delaware River, and so, between the said Creeks, backward, 890 PENNSYLVANIA AND MARYLAND as far as a Man can ride in two Days with a Horse, for and in Consideration of the there following Goods, to them in hand paid and secured to be paid by William Penn Proprietary and Governor of the Province of Pensilvania and Territories' thereof, do bargain and sell to the said William Penn his Heirs and Assigns for ever, the aforesaid Tract of Land with all the Woods, Runs, Creeks and Appurtenances to the same belonging. To be held, used, possest and enjoyed by the said William Penn his Heirs and Assigns for ever, without any Molestation by them or any other Indians. Witness their Hands and Seals, with 13 Labels and Seals and Mark thereto, and witnessed by 9 Christian Witnesses and 5 Indian Witnesses. This Copy from the Records is proved by Mr. Brokden, Deputy Master of the Rolls in Pensilvania, and is in Pensilvania Records, No. 7. Fol. 3. And now we shall go back again to see what was transacted in England during these three Years, which would have been very obscure if interinixt with the America Proceedings. Chap. VII. An Account of what past (in England) in the Years 1683, 1684, and 1685, being the first Contest or Suit between Lord Baltimore and Mr. Penn, viz. Note. In April 1683, the Duke of York was obtaining a further Grant, from the King to himself, of the three lower Counties, in a more ample manner than that which he had before ; and it was very near passing, if it did not actually pass, the Great Seal; but we can't find an Enrollment of it, to shew thereby that it did actually pass the Great Seal. And indeed the Defendant has proved a Copy of this intended Patent, from the Bill remaining at the Signet Office, and an Entry made relating to it at the Privy Seal Office ; and has also examined Mr. Sharp's Clerk, Hamersley, to prove that he cannot find that Patent enrolled, at the Chappel of the Rolls, as it ought to have been, had it passed the Great Seal; As the Defendant has proved it, we design to move for Leave to examine a Witness viva voce to prove Copies, on our, part, at the Hearing, because, altho' it niight not pass, yet, it con- tains such a Description of the South Bounds of the lower Counties as is extremely material for us. 1683, Apr. 13. A Bill signed by Sir R. Sawyer and now remaining at the Signet Office, containing the King's Grant to the Duke of York, in Fee; which recites that the Duke of York had surrendered BOUNDARY QUESTION. 391 to the King the Letters Patent dated 22d March last, which Surrender his Majesty had accepted and thereby did accept. Therefore the King, of his especial Grace, &c. Grants unto the Duke of Y'ork, in Pee. All that the Town of Newcastle.' otherwise called Delaware, and Fort therein, or thereunto belonging, scituate, lying and being between Maryland and New Jersey in America, And all that River called Delaware, and Soil thereof, and all Islands in the said River. And all that Tract of land, upon the West side and River of Delaware which lieth from Skoolkil Creek, upon the said River, unto Bombeys-hook, and, backwards, into the Woods, so far as the Minqua's Country. And, from Bombeys-hook, on the said River and Bay, unto Cape Henlopen, now called Cape James, being the South Point of A Sea Warmett Inlett; and backwards, into the Woods, three Indian Days Journies : Being formerly the Claim or Possession of the Dutch, or purchased by them of the Natives, or which was by them first surrendered unto our Lieutenant Governor Colonel Nicholls, and which hath since, been sux- rendered unto Sir Edmund Andros, Lieutenant Governor to our said dearest Brother James Duke of York, and hath for several Years been in his Possession. With the general Words following, and Powers of Govern- ment, &c. This is Exhibit Signet Office. Apr. 16. An Endorsement upon the Bill thus, viz. Expediture apud Westmonaster, 16 die Aprilis anno regni Regis Caroli Secundi tricesimo quinto. Per Morice. Apr. 16. An Entry or Docket in the Books at the Signet Office, and at the Privy Seal Office of the said Bill. These are also Exhi- bits markt Signet Office, and Privy Seal Office. Apr. 16. Another Entry in the books at the Hanaper Office, viz. A Grant to James Duke of York of the Town of Newcastle alias Delaware scituate between Maryland and New Jersey in America, to him and his Heirs. At the Foot of which Entry the Clerk of the Hanaper certifies that that Grant did pass the Great Seal. (For they are not entered there unless they pass) — Han. Off. Note. Three things arise upon this intended Patent, even if it did not pass. 1. If this Patent did not pass, neither did the Duke of York's Surrender of his former Patent pass. 2. Please to re- 392 PENNSYLVANIA AND MARYLAND mark well where the South Bounds of the three Lower Counties were then expressly described to be. And 3. Tho' the Suit and Contest, then beginning, lasted three Years, and my Lord Bal- timore insisted that the whole Counties were within the Extent and Limits of his Grant of Maryland ; yet, when that was flatly adjudged against him, and when the Proposal was made, for ending the Difference, and he had time allowed him to consider of, and make any Objections to, the Terms, he never pretended then that those South Bounds went at all too low, or ever ob- jected to them then ; which is the more material as the South Bounds of the lower Counties, taken by the present Agreement, are most precisely and exactly, what was then designed for the South Bounds thereof, if that Patent. had passed in 1683. Apr. 17. Tuesday. April 17th 1683. Present Lord Keeper, Lord Presi- dent, Lord Privy Seal, Earl of Craven, Lord Viscount Faucon- berg, Earl of Rochester, Bishop of London, Mr. Secretary Jen- kins. My Lord Privy Seal produces a Letter, to himself, from the Lord Baltimore, dated the 8th of February 1682, with two other Papers inclosed, the one being an Account of the Confer- ence held in Maryland, between the Lord Baltimore and Wil- liam Penn, and the other containing a Narrative of the whole Proceedings, betwixt them; whereby it appears, that great Contests have arisen between them, concerning the Bounds of their Provinces; it being also alledged therein, that Mr. Penn las written a Letter, dated the 16th of September 1681, which vas directed to James Frisby and others, at their Plantations n Pensilvania, which the Lord Baltimore does assert to be within the Bounds of his Propriety, wherein Mr. Penn does, nevertheless, advise them, that, as he was confident and ready to believe, they were within his Bounds, they should not pay any more Taxes or Sessments, by any Order or Law of Maryland ; Whereupon the Inhabitants of Baltimore and Cecil County, having refused to pay their Levys, the Lord Baltimore and his Council had immediately issued out Orders to the Military Officers of those Counties, to assist their respective Sheriffs in the due Execution of their Office, which had been, with great Difficulty, effected ; Whereupon, it is ordered, that my Lord Keeper have a View of the several Boundaries of the Patents granted to the Lord Baltimore and Mr. Penn, as also to his Royal Highness, of Newcastle, which his Lordship is desired to consider of, and to report his Opinion to the next Commit- tee ; when the Agents of the Lord Baltimore and Mr, Penn are to attend; and in the mean time, that Application be made to his Royal Highness, that he would please not to pass any Con- veyance to Mr. Penn of those Parts, until the Bounds between BOUNDARY QUESTION. 393 the Lord Baltimore and him be settled. Memorandum. Sir John Werden was accordingly attended, from the Committee, and promised to represent their Desires to his Royal Highness. It is also agreed, by the Committee, that Letters be written to the Lord Baltimore and Mr. Penn, advising them to come to a fair and speedy Composure of the Matters in Difference betwixt them. This is proved by Mr. Gellibrand, and is Exhi- bit Botra No. 22. Fol. 1. Note. This shews the Reason why the then passing Grant, to the Duke, was stopt. It also shews why the Duke did not make a formal Conveyance to Mr. Penn. For Lord Baltimore's Com- plaint and Claim of Right, which came over hither first of all by his Letters, and was, afterwards, turned into a Petition, wherein he claimed the whole three lower Counties, put a stop to any further Grant from the King to the Duke, and also from the Duke to Mr. Penn, until such time as that the Lord Balti- more's Claim should be examined into. Api\ 27. Friday, April the 27th 1683. Present Lord Keeper, Lord Presi- dent, Duke of Ormond, Earl of Clai-endon, Lord Chamberlain, Earl of Rochester, Earl of Sunderland, Earl of Chesterfield, Earl of Craven, Mr. Secretray Jenkins, Mi'. Chancellor of the Exchequer. Their Lordships being acquainted that an Agent from the Lord Baltimore attended without, concerning the Boundaries in Difference between Mr. Penn and his Lordship, it is ordered, that the said Agent be told, that if he has any Matter of Complaint, he may represent the same, by Petition, to his Majesty in Council. This is proved by Mr. Gellibrand, and is Exhibit Botra No. 22. Fol. 4. May 30. Thursday, May the 30th 1683. Present Lord Keeper, Lord President, Lord Privy Seal, Earl of Peterborough, Earl of Craven, Earl of Clarendon, Earl of Rochester, Lord Dartmouth Mr. Secretary Jenkins. A Reference, dated the 31st May, upon the Petition of Richard Burke, Servant to my Lord Baltimore, being read, praying that a Grant, which is passing to his Royal Highness, of the Parts adjacent to Delaware Bay,may not p?" : the Great Seal, until his Majesty shall be satisfied concerning the extent of Lands granted to the Lord Baltimore, Council learned in behalf of his Royal Highness, together with an Agent from Mr. Penn, who solicits the passing of this Grant, as also the Petitioner Mr. Burke, and his Council learned, are called in: Whereupon the Council for my Lord Baltimore affirming, that the Tract of Land in Question lies within 394 PENNSYLVANIA AND MARYLAND the Limits of the Charter granted to the Lord Baltimore, and that his Lordship has, always, continued his Claim thereunto, Mr. Penn's Agent, and the Council in behalf of his Royal Highness, endeavoured to make out, that this Territory was never possessed by my Lord Baltimore, but originally inhabited by Dutch and Swedes, and that the Grant to my Lord Balti- more was only of Lands not inhabited by Christians; so that, a Surrender having been made of the Country to his Majesty in 1664, the Lord Baltimore can have no rightful Claim there- unto ; and that it having been, ever since, in the Possession of his Royal Highness, the Lord Baltimore can receive no Injury by the Grant that is desired. Upon the whole Matter, Mr. Penn's Agent undertaking to prove, within a short time, that this Country was possessed by the Dutch and Swedes in the Year 1609, or at least, before the Date of the Lord Baltimore's Patent, their Lordships agreed to meet again, as soon as the Proofs shall be ready for making out the same. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 22. Fol. 5. May 31. At the Court at Hampton-Court the 31st of May 1683. By the King's Most Excellent Majesty, and the Lords of his Majesty 's most Honourable Privy Council. Upon reading this Day at the Board the Humble Petition of Richard Burke Gent. Ser- vant to the Right Honourable Charles Lord Baltimore, pray- ing, in behalf of his Lordship, that a Grant (which is passing) from his Majesty to his Royal Highness the Duke of York, of the Town of Newcastle, and the adjacent Country, on the Confines of Maryland may not pass the Great Seal, until his Majesty shall be satisfied of the Extent of Letters Patent for- merly granted to Cecill Lord Baltimore, wherein the said Town and adjacent Country is alledged to be comprized. His Majesty in Council was pleased to order, that the Examination of that whole Matter be, and it is hereby, referred to the Right Hon- ourable the Lords Committees of this Board, for Trade and Foreign Plantations, and, upon their Lordships Report of the State thereof, with their Opinion thereupon, his Majesty will declare his further Pleasure. Sign'd Phil. Loyd. This is proved by Mr. Gellibrand and is Exhibit Botra, No. 21. Fol. 1. 1683. June 12. Tuesday the 12th of June 1683. Present Lord Archbishop of Canterbury, Lord Keeper, Lord President, Lord Privy Seal, Earl of Rochester, Earl of Craven, Lord Bishop of London, Lord Dartmouth, Mr. Chancellor of the Exchequer, Mr. Godolphin. The Agents on behalf of the Lord Baltimore and Mr. Penn are called in, and Council learned being heard on both sides, the BOUNDARY QUESTION. 395 Question is stated between them, viz. Whether, in the Year 1632, the Dutch were possessed of the Lands claimed by Mr. Penn; which Mr. Penn's Agent undertakes to prove, in a short time, and their Lordships will then take this Matter into fur- ther Consideration. This is Exhibit Botra, No. 22. Pol. 7. Aug. 14. A Letter from Mr. Penn to the Right Honourable the Lords of the Committee for His Majesty's Plantations at Whitehall. Philadelphia the 14th of the 6 month, Aug. 1683. Tho' it be a Duty I humbly own, to inform the Lords of the Committee of Plantations of what concerns his Majesty's interest in the Success of this Province, I thought myself equally obliged to be discreet and cautious in doing it : To write when there was need, and not trouble Persons, of their Honour and Business, with Things trivial, at least raw and unfinisht for their View. This, hitherto, put me by, giving any Account of the State of our Af- fairs ; To say nothing of the mighty Difficulties I have laboured under, in the Settlement of six and twenty Sail of People, to Content, within the Space of one Year, which makes my Case singular, and excusable above any other of the King's Planta- tions. But, because my Agent has informed me, that the Pro- prietor of Maryland, has been early in his account of our Conference, about the fixing of our Bounds, and made a Nar- rative of my Affairs, as well before, as at that Time, a little to my Disadvantage, and the rather, because my Silence might be interpreted Neglect, I am necessitated to make some De- fence for myself, which, as it will not be hard to make, so I hope it will be received as just. I humbly say then first, that it seemed to me improper to trouble the Lords with my Transactions with this Proprietor, till we were come to some Result; which we were not, for we parted till Spring, and even then, were but to meet about the Methods of our Proceed- ing. Next, this Narrative was taken, by this Lord's Order, with- out my Consent or Knowledge, in a Corner of a Room, by one of his own Attendants. And lastly when, upon Notice given of this Usage, I complained to him, he promised, upon his Word and Honour it should go no further, and that it was for his own Satisfaction he did it. I told him, that mitigated the Thing a little ; but, if he should divulge it, before I saw and agreed the Copy, he must pardon me if I lookt upon it as a most unfair Practice ; what that Lord has done, and what to call it, I leave to my Betters, but the Surprize and Indigestion of the whole, will I hope excuse me of Neglect or Disrespect; for tho' I am inceremonious, I would by no means act the rude or undutiful. This said, I humbly beg that I may give a brief 398 PENNSYLVANIA AND MARYLAND Narrative of the Matter, as it then past, since has been, and now stands, without the Weakness and Tautology his Rela- tion makes me guilty of. So soon as I arrived, which was on the 24th of October last, I immediately dispatcht two Persons to the Lord Baltimore, Proprietary of Maryland, with my Respect, to ask of his Health, offer kind Neighbourhood, and agree a Time of meeting, the better to establish it. While they were gone in this Errand, I went to New-York, that I might pay my Duty to the Duke, in the Visit of his Government and Colony ; at my Return, which was towards the End of November, I found the Mes- sengers I had sent to Maryland newly arrived, and the Time fixed being the 19th of December, I prepared myself, in a few Days, for that Province ; the 11th of that Month, I came to West River, where I met the Proprietor, attended, suitable to his Character; who took that Occasion, by his Civilities, to shew me the greatness of his Power; the next Day, We had a Conference, about our Business of the Bounds, both at the same Table, with our respective Members of Council. The first, Thing I did, was, to present the King's Letter, which consisted of two Parts, one, that the Lord Baltimore had but two De- grees, and the other, that, beginning at Watkins's Point, he should admeasure his said Degrees, at 60 Miles to a Degree. This, being read by him, first privately, then publickly, he told me that the King was greatly mistaken, and that he would not leave his Patent to follow the King's Letter, nor could a Letter void his Patent, and by that he would stand. This was the Substance of what he said from first to last, during the whole Conference. To this I ansAvered, that the King might be mis- informed, rather than mistaken, and that I was afraid the Mis- take would fall of his Side; for, though his Patent begins at Watkins's Point, and goes to the 40th Degree of North Latitude, yet, it presumed that to lie in thirty-eight, else Virginia would be wronged, that should extend to that Degree ; however, this I assured him, that when I petitioned the King for five Degrees North Latitude, and that Petition was referred to the Lords nf the Committee of Plantations, at that time, it was urged by some present, iha.t the Lord Baltimore had but two Degrees, upon wnicli the Lord President turning his Head to me, at whose Chair I stood, said, Mr. Penn, wall not three Degrees serve your turn? I answered, I submit both the what, and how, to the Honourable Board. To this, his Uncle and Chancellor returned, that, to convince me, his Father's Grant was not by Degi-ees, he had more of Virginia given him, but, being planted, and the Grant intending czily Land to - Vn^ •'" *» ^ossest but of Savages, Natives, he left it out, that it might not luifoit BOUNDARY QUESTION. S97 the rest, of which the Lord Baltimore takes no notice in his Narrative, that I remember; but, by that Answer, he can pre- tend nothing to Delaware, that was, at and before, the passing of that Patent, bought and planted by the Dutch, and so could not be given; but, if it were, it was forfeited, for not reducing it during twenty Years, under the English Sovereignty, of which he held it; but was at last reduced by the King, and therefore, his to give as he please it. Pei*ceiving that my pressing the King's Letter, was uneasy, and that I had determined myself to dispose him, with utmost Softness, to a good Compliance. I waved that of the two Degrees, and prest the measurement only, the next Part of the Letter; for, tho' it were two Degrees and half from Watkins's Point to Forty, yet let it be measured at 60 Miles to a Degree, and I would begin at Forty, fall as it would, my Design was, that every Degree, being seventy Miles, I should get all that was over sixty, the Proportion intended the Lord Baltimore by the Grant, and the Computation of a Degree at that time of the day. Thus, he had enjoyed the full Favour intended him, and I had gained a Door, of great Im- portance to the peopling and improving of this his Majesty's Province : But this, he also rejected ; I told him, it was not the Love, or Need, of the Land, but the Water ; that he abounded in what I wanted, and had Access and Harbourage even to Excess; that I would not be thus importunate, but for the Importance of the Thing, to save a Province ; and, because there was no Proportion in the Concern, if I were hundred times more urgent and tenacious, the Case would excuse it; because the Thing is insisted on, were more than ninety-nine times valuable to me, than to him : To me the Head, to him the Tail. I added, that if it were his, and he gave it me, planting it would recompence the Favour, not only by laying his Country between two thriving Provinces, but the Ships that come yearly to Maryland for Tobacco, would have the bringing of both our People and Merchandize, because they can afford it cheaper, whereby Maryland would, for one Age or two, be the Mart of Trade: but this, also, had no other Entertainment, but hopes that I would not insist on these Things at our next Meet- ing. After three Days time we parted, and I returned to this Province. When the Spring came, I sent an Express, to pray the time and Place when and where I should meet him, to effect the Business we adjourned to that Time. I followed close upon the Messenger, that no Time might be lost; but the Expecta- tion he twice had, of the Lord Culpepper's Visit, disappointed any Meeting in our Affair, till the Month called May. He, then, sent three Gentlemen, to let me know he would meet me at the Head of the Bay of Ghesopeake. I was then in Treaty 398 PENNSYLVANIA AND MARYLAND with the King of the Natives, for Land, but, three Days after, we met, ten Miles from Newcastle, which is thirty from the Bay ; I invited him to the Town, where, having entertained him as well as the Town could afford on so little Notice, and finding him only desirous of speaking with me privately, I prest that we might, at our distinct Lodgings, sett severally, with our Councils, and treat by way of written Memorials, which would prevent the Mistakes or Abuses that may follow from ill Designs, or ill Memory; but he avoided it, saying he was not well, the Weather sultry and would return with wlmt Speed he could; reserving any other Treaty to another Season. Thus we parted, at that time. I had been, before, told by divers, that the Lord Baltimore had issued forth a Proclamation, to invite People, by lower Prices, and greater Quantities of Land, to plant in the Lower Counties, in which the Duke's Goodness had interested me as an inseparable Benefit to this whole Pro- vinse; I wa's not willing to believe it; and he, being in haste, I omitted to ask him ; but I had not been long returned, before two Letters comes from two Judges of the two County Courts, that such a Proclamation was abroad, that the People adhorr'd to hearken to it, but yet, prayed my Directions. I bid them keep their ground, and not fear, for the King would be Judge. Upon this, I dispatcht. to the Lord Baltimore, three of my . Council, with the Clerk of it: as they went, they got an Au- thentick Copy, under the Hand of one of his Sheriffs, to whom an Original had been directed ; but, as the last Civility I could yield him, I forbid them to seem to believe any thing, but what they had from his own Mouth : Thus, they delivered my Letter; at first, he denied any such Proclamation, turning to two Gen- tlemen of his Council that stood by, asked them, if they remem- bered any such thing? They also denied it; upon which, the Persons I sent, produced the attested Copy, which, refreshing their Memories, they confessed there was such a Proclamation, but the Lord Baltimore told them, that it was his ancient form, and he only did it to renew his Claim, not that he would en- courage any to plant there. They then prayed him to call it in, lest any trouble should ensue, but he refused it. This was, during a Civil Treaty, without any Demand made, and after the Place had been, for many years, in the quiet Possession of the Duke. What to call this, I still humbly refer to my su- periors; for his Pretentions to those Parts, I have thoroughly instructed my Agent, who I hope will be able to detect them of Weakness and Inconsistency. This is a true, tho' brief, Nar- rative of the Entertainment I have had from that Lord, in the Business between us. And because I have, as in Duty bound, sent an Agent Extraordinary, to wait upon the King and his BOUNDARY QUESTION. 399 Ministers, in the Affairs of this Province, (so soon as I Could make any Settlement in it) I shall only humbly pray leave to hint at two or three Things, relating to the Business depending between this Lord and myself, about finding the Fortieth Degree of North Latitude. 1st. That I have common Fame on my side. grounded upon an ancient and constant Judgment, that the fortieth Degree of North Latitude lieth about Pool's Isle; this the Lord Baltimore himsef hatn not denied, the Country con- fesseth, and I shall, when required, prove by some able Masters of Ships. 2d. If this were an Error, it is grounded upon such Skill and Instruments as gave measures to the Times in which his Patent was granted; and if he hath got upon Virginia, by that Error, he should not get upon me, by an exacter Know- ledge; considering that Carolina, which endeth by Degrees, would as much advance upon Virginia, if the reputed Latitude of unprejudiced Times should take no place ; for, by advancing her Bounds twenty Miles, by a new Instrument, beyond the Place which hath generally been taken for 36J ; and Virginia not being equally able to advance, upon Maryland, (because of it's beginning at a Place certain) she will be greatly narrowed between both. 3dly. I, therefore, most humbly pray, that the Judgment of Ancient Times, by which Persons, at the Dis- tance of England from America, have governed themselves, may conclude that Lord's Bounds; or, that he may measure his two Degrees according to the Scale and Computation of those Times, which was sixty Miles to a Degreee; or, if it be allowed that he had not his Grant by Degrees, that, at least, I might not lose the Benefit of Admeasurement, as before men- tioned, from Watkin's Point (in whatsoever Degree of Latitude that shall be found) to the fortieth Degree of North Latitude ; which I humbly take the more courage to press, because a Pro- vince lieth at stake in the Success of it. I have only humbly to add that the Province hath a Prospect of an extraordinary Im- provement, as well by divers Sorts of Strangers, as English Sub- jects; that, in all Acts of Justice, we name and venerate the King's Authority; I have exactly followed the Bishop of Lon- don's Council, by buying, and not taking away, the Natives Land, with whom I have settled a very kind Correspondence. I return my most humble Thanks for your former favours in the passing of my Patent, and pray God reward you. I am most ready to obey all your Commands, according to the Obligations of it, and beseech you to take this Province into your Protection under his Majesty, and him, whom his Goodness hath made Governor of it, into your Favour ; for that I am, with most sincere Devotion, Noble Lords, your thankful faithful Friend and Servant to my Power (sign'd) William Penn. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 20. 400 PENNSYLVANIA AND MARYLAND Feb. 12. Memorandum concerning Pensilvania, received and read lath February 168|. A certain Tract of Land, in America, having been surrendered, long since, by the Dutch to the Kins:, and, ever since, in the Possession of his Royal Highness ; His Royal High- ness having demised it to William Penn Esq ; (lying contigouus to Pensilavnia) at a Rent ; the Lord Baltimore now disturbs Wil- liam Penn, and his Agents there, and opposes tlie passing of a Patent of it to his Royal Highness here. And, upon a Hearing before the Lords of the Committee of Plantations, it being al- leged in the behalf of his Royal Highness, that this Tract of Land was inhabited by Christians, before the Lord Baltimore's Patent, which extended only to Land uninhabited by Christians, it was ordered that they should be ready with Proofs to that Point. It is now desired, in the behalf of his Royal Highness a Day may be appointed to be heard to it. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 21. Fol. 2. Feb. 12. Tuesday 12th February 168|. Present Lord Keeper, Earl of Bridgewater, Earl of Clarendon, Mr. Secretary Jenkins. Upon reading a Paper, delivered by the Agent of Mr. Penn, Proprie- tor of Pensilvania, wherein it is desired, that a Day may be ap- pointed to hear the Difference between the Lord Baltimore and the said William Penn, touching a certain Tract of Land in America,* now in the Possession of his Royal Highness. Their Lordships take notice of a Letter, lately received from the Lord Baltimore, wherein his Lordship desires that the Hearing of this Matter may be deferred till April next, when he intends to come into England. Whereupon it is agreed that this Business be postponed until the Month of April next, unless the Agent of the Lord Baltimore be ready to bring the Matter in difference to a Hearing before that time. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 22. Fol. 8. 1684. July 2. Wednesday July 2d, 1684. Present Lord Keeper, Lord Presi- dent, Lord Privy Seal, Duke of Beaufort, Earl of Rochester, Lord Viscount Fouconberg, Lord Dartmouth, Sir Leolin Jenkins. A Letter from Sir Edward Herbert, Solicitor to his Royal Highness, read, representing the Prejudice that his Royal High- ness may suffer by a further Delay of the Business now depend- ing before their Lordships, between Mr. Penn Lessee to his Royal Highness, and the Lord Baltimore, for the Lands in Delaware. Whereupon, their Lordships order that the Lord Baltimore's Agent have notice to attend on Wednesday the 16th Instant. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 22. Fol. 9. BOUNDARY QUESTION. 401 July 16. Wednesday July 16th 1684. Present Lord Archbishop of Can- terbury, Lord Keeper, Lord Privy Seal, Earl of Craven, Earl of Nottingham, Earl of Rochester, Lord Bishop of London, Lord Dartmouth, Mr. Chancellor of the Exchequer. The Agents of my Lord Baltimore and Mr. Penn attending, their Lordships ap- point to taks the matter in difference between them into further Consideration, on Wednesday next, at four in the Afternoon, at which Time all Parties are to attend. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 22. Fol. 10. July 23. Wednesday July 23d 1684. Present Lord Keeper, Lord Presi- dent, Lord Privy Seal, Earl of Craven, Earl of Rochester, Mr. Secretary Godolphin, Sir Leolin Jenkins, Mr. Chancellor of the Exchequer. My Lord Baltimore attending, upon the Di fference between his Lordship and Mr. William Penn, touching the Boundaries of Maryland and Pensilvania, his Lordship. and Mr. Ford, Agent for Mr. Penn, are called in, and Mr. Ford declaring that he could not be leady for Hearing, because Sir Edward Herbert, Solicitor to his Royal Highness, whose Lessee Mr. Penn is, was gone upon his Circuit, and that he could not get other learned Council : Their Lordships appoint this Matter to be heard the first Tuesday after Michaelmas, at which Time all Parties are to be ready with their Proofs and Evidences of the Right. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 22. Fol. 11. Sept. 30. Tuesday Sept. 30th 1684. Present Lord Keeper, Earl of Roches- ter, Lord President of his Majesty's Council, Lord Privy Seal, Earl of Sunderland, Earl of Clarendon, Earl of Craven, Earl of Middleton. My Lord Baltimore, and the Commissioners of his Royal Highness, under whom Mr. Penn claims a Tract of Land about Newcastle in the Province of Delaware, together with their Council learned, are recalled in, and it being alledged by Sir Edward Herbert, his Royal Highness's Solicitor, that the Proofs in this case depend chiefly upon Mr. Penn's coming into England, where he was soon expected, their Lordships appoint the Business to be heard on the 9th Day of December next, at which Time Mr. Penn is expected here. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 22. Fol 12. 1684, Dec. 9. Tuesday December 9th 1684. Present Lord Keeper, Earl of Hutingdon, Earl of Bridgewater, Earl of Sundprland, Earl of Craven, Earl of Middleton, Lord Viscount Fauconberg. The 26- VOL. XV. 402 PENNSYLVANIA AND MARYLAND Difference depending between my Lord Baltimore and Mr. Penn, being appointed to be heard this Day, was put off to another Time. This is proved by Mr. Gellibrand, and is Exhibit Botra, No 22. Fol.13. March 17. Tuesday March 17th 168f. Present Lord Keeper, Lord Presi- dent, Lord Privy Seal, Duke of Beaufort, Earl of Sunder- land, Earl of Craven, Earl of Ailsbury, Lord Viscount Fau- conberg, Lord Godolphin, Mr Chancellor of the Dutchy. A Let- ter from Mr. Penn, dated this Day, is read, praying that he may have an Order for quieting the Possession of the Lands in Dela- ware, as his Majesty had placed it, till the Difference between Mr. Penn and the Lord Baltimore be heard, but their Lordships do not think fit to do any thing therein. This is proved by Mr. Gellibrand, and is the Exhibit Botra, No. 22. Fol. 14. 1685, Aug. 18. Received from the Earl of Middleton 18th August 1685. Read the same Day. To the King's Majesty. The Petition of William Penn, with all Humility sheweth, That his Petitioner has long waited, to his great Detriment, the Decision of the Matter in Difference between the Lord Baltimore and himself, under the King's Name and gracious Protection, about the Bounds of the Lands which he received from the King when Duke ; and, tho' he has been referred to the Issue of the Quo War- ranto upon the Lord Baltimore's Patent, yet, since this Stay is of the greatest Prejudice to his Majesty's Province, and a Ruin to his Petitioner and his Family, as he is ready to evince, and that it is about a Title of Land, and not of Power, and so, not the Question the Quo Warranto goes upon; for that Dispute would remain, tho' the King's Suit about Power were issued ; His Peti- tioner most humbly prays his Case may be recommended to the Lords of Plantations, and a short Day set to hear and deter- mine this Business; and his Petitioner shall ever heartily pray, Signed William Penn. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 21. Fol. 3. Aug. 18. Tuesday 18th August 1685. Present, Lord Treasurer, Lord Pres- ident, Earl of Bridgewater, Earl of Sunderland, Earl of Craven Earl of Middleton, Lord Godolphin, Mr. Chancellor of the. Dutchy. Upon the Petition of William Penn Esq ; referredto the Committee, setting forth that the Difference between my Lord Baltimore and the Petitioner, is about a Title of Land, and not of Power, and so not, the Question of the Quo Warranto issued against my Lord Baltimore, and therefore, praying that a short BOUNDARY QUESTION. 403 Day may be set for hearing and determining the same, their Lordships appoint to hear the Difference bet w sen the Lord Balt- imore and the Petitioner, concerning the Boundaries and Title of Soil in America on Wednesday the 26th of this Month, at 4 in the Afternoon, and order Notice thereof to be given to both Parties accordingly. This is proved by Mr. Gellibrand, and is the Exhibit Botra, No. 22. Fol. 15. Aug. 26. Thursday the 26th of August 1685. Present, Lord Treasurer, Lord President, Earl of Bridgewater, Earl of Craven, Earl of Nottingham, Lord Viscount Fauconberg, Lord Bishop of Lon- don, Earl of Middleton, Mr. Chancellor of the Dutehy. The Lord Baltimore and Mr. Penn attending, upon the Differences between them, touching Boundaries, and Title of Soil, in Amer- ica, are called in, and their Lordships appoint to henr this Business on Wednesday the 2d of the next Month, when both Parties agreed to attend without Council. This is proved by Mr. Gellibrand, and is the Exhibit Botra, No. 22. Fol. 16. Sept. 2. Tuesday the 2d of September 1685. Present. Lord President, Lord Privy Seal, Earl of Bridgewater, Earl of Craven, E^rl of Middleton, Lord Viscount Fauconberg. The Lord Baltimore and William Penn Esq ; attending, this Day, according to Order, upon the Difference between them, and the Boundaries of Land, and Title of Soil, in America : And Mr. Penn having produced divers Proof, to make out that the Country of Delaware was inhabited by the Swedes and Dutch before the Date of my Lord Baltimore's Patent: It is thought fit that Copies be given to the Lord Baltimore, of the said Evidences and Proofs, that his Lordship may be prepared to make his further Defence before the 30th of this Instant September; on which Day their Lordships resolve to take this Matter again into Consideration. This is proved by Mr. Gellibrand, and is Exhibit Botra, No. 22. Fol. 17. Octob. 8. Thursday the 8th of October 1685. Present, Lord Jefferys, Lord High Chancellor of England, Lord Treasurer, Lord Presi- dent, Lord Privy Seal, Earl of Mulgrave, Lord Chamberlain, Earl of Sunderland, Earl of Craven, Lord Bishop of London, Master of the Ordnance. My Lord Baltimore and Mr. Penn attending, are called in, and both Parties being heard, my Lord Baltimore gives their Lordships an Account that, in the Year 1642, one Ployden sailed up Delaware River, and did not see any House there at that time, as is affirmed by a Deposition produced by Mr. Penn ; and the Copy of a Report of the Com- 404 PENNSYLVANIA AND MARYLAND missioners of Foreign Plantations, on the 4th of April 1638, touching the Differences between the Lord Baltimore and Mr. Clayborn, about the Isle of Kent, is offered by my Lord, shew- ing their Opinion touching the Lord Baltimore's Right to the Isle of Kent: After which, the Deposition of Mr. Garret Van Sweeringen concerning the seating Delaware Bay and River to the Southward of the 40th Degree Northern Latitude, by the Dutch and Swedes, read. Whereupon their Lordships think fit that my Lord Baltimore procure an attested Copy of the fore- mentioned Reports, against Thursday next, when their Lord- ships will take this Matter into further Consideration. This is proved by Mr. Gellibrand, and is Exhibit Botra No. 22. Fol. 18. Octob. 17. Saturday October 17th 1685. Present, Lord Chancellor, Lord Treasurer, Lord Privy Seal, Duke of Beaufort, Lord Chamber- lain, Earl of Sunderland, Earl of Craven, Earl of Middleton, Lord Dartmouth, Mr. Chancellor of the Exchequer. My Lord Baltimore and Mr. Penn are called in, and my Lord Baltimore having undertaken to procure an authentick Copy of a Report, made by the Commissioners for Foreign Plantations on the 4th April 1638, touching the Differences between my Lord Balti- more's Predecessors and William Clayborne, about the Isle of Kent, my Lord Baltimore declares that he cannot find the Ori- ginal, whereby an attested Copy may be procured; Their Lordships agree to report their Opinions, that the Tract of Land, now in Dispute, does not belong to my Lord Baltimore; but, in as much as it yet remains doubtful, what are the true Boundaries of the Land called Delaware, which their Lord- ships now adjudge to belong to his Majesty, their Lordships will meet again for the Settlement of those Boundaries between his Majesty, and the Lord Baltimore; at which time his Lord- ship and Mr. Penn are to give their Attendance, and to come prepared for a final Decision therein. This is proved by Mr. Gellibrand, and is Exhibit Botra No. 22. Fol. 20. Octob. 31. Saturday October 31st 1685. Present, Lord Chancellor, Lord Privy Seal, Lord Chamberlain, Earl of Sunderland, Earl of Craven, Earl of Berkeley, Earl of Plimouth, Earl of Middle- ton, Lord Viscount Preston, Mr. Chancellor of the Exchequer. My Lord Baltimore and Mr. Penn attending, are called in, and their Lordships taking into Consideration what might be the proper Boundaries of the Country of Delaware, now in Question, it is proposed that the whole Peninsula, or Tract of Land, called Delaware, from East to West, as far as Cape BOUNDARY QUESTION. 405 Hinlopen Southward, may be divided into two equal Parts, between his Majesty and my Lord Baltimore. Whereupon, his Lordship, desiring further time, to consider of this Proposal, the Committee allow him a Week longer, to offer his Objec tions. This is proved by Mr. Geliibrand, and is the Exhibit Botra No. 22. Fol. 21. Nov. 7. Saturday November 7th 1685. Present Lord Privy Seal, Earl of Bridgewater, Earl of Sunderland, Earl of Craven, Eail of Middleton, Lord Viscount Fauconberg, Mr. Chancellor oi the Exchequer, Lord Chief Justice Herbert. My Lord Baltimore and Mr. Penn attending, concerning the Boundaries of the Country of Delaware, are called in; and being heard, their Lordships resolve to report their Opinion, to his Majesty, That, for avoiding further Differences, the Tract of Land, lying between the River and Bay of Delaware, and the Eastern Sea, on the West side, and Cheasepeak Bay on the other, be divided into two equal Parts, by a Line, from the Latitude of Cape Hinlopen, to the 40th Degree of Northern Latitude; and, that one half thereof, lying towards the Bay of Delaware and the Eastern Sea, be adjusted to belong to his Majesty; and that the other half remain to the Lord Baltimore, as comprised within his Charter. This is proved by Mr. Geliibrand, and is Exhibit Botra No. 22. Fol. 22. Note well. This Determination was made by Agreement of Parties, as it were, it having been before proposed to the Parties, and Time given them to consider thereof, And this Report abundantly fixes the North Bounds of Mary- land to be at the Head of Chesopeak Bay ; for the Peninsula, which was so to be divided, although it had three Boundaries on the one side, namely, the River and Bay of Delaware, and the Eastern Sea, yet it had no Boundary on the other side but Chesopeak Bay only. Again, this Report fixes, very materally for us, that the South Bounds of the lower Counties were to be from Cape Hinlopen. And the first Dutch Record, of the Year 1630, shews that was 8 large Miles, (viz. 8 Leagues) South of Delaware Bay. Besides which, Cape Hinlopen mentioned in this Report, could not be (as my Lord Baltimore now pretends) at the Mouth or Entrance of Delaware Bay ; for, if so, there was no occasion to describe the Eastern Sea as Part of the Boundary of the Peninsula, which in fact it was not, in such Case, but, on the contrary, the River and Bay of Delaware would have been the only East- ern Boundaries, had Cape Cornelius been the true and ancient Cape Hinlopen. 406 PENNSYLVANIA AND MARYLAND Nov. 13. At the Court at Whitehall the 13th Day of November 1685. Present, The King's Most Excellent Majesty, His Royal High- ness Prince George of Denmark, Lord Archbishop of Canterbury, Lord Chancellor, Lord Treasurer, Lord Privy Seal, Duke of Or- mond, Duke of Beaufort, Duke of Queensberry, Lord Chamber- lain, Earl of Huntingdon, Earl of Bridge-water, Earl of Peterbor- ough, Earl of Sunderland, Earl of Craven, Earl of Berkeley, Earl of Nottingham, Earl of Plymouth, Earl of Morray, Earl of Mid- dleton, Lord Viscount Fauconberge, Lord Viscount Preston, Lord Viscount Melfort, Lord Bishop of London, Lord Dart- mouth, Lord Godolphin, Mr. Chancellor of the Exchequer. The following Report, from the Right Honourable the Lords of the Committee for Trade and Foreign Plantations, being this Day read at the Board : The Lords of the Committee for Trade and Plantations having, pursuant to his late Majesty's Order in Council of the 31st of May 1683, Examined the Matters in differ- ence between the Lord Baltimore and William Penn Esq ; in be- half of nis present Majesty, concerning a Tract of Land, in America, called De la Ware, Their Lordships find that the Land, intended to be granted to the Lord Baltimore's Patent, was only Land uncultivated and inhabited by Savages. And that this Tract of Land, now in Dispute, was inhabited and planted by Christians, at and before the Date of the Lord Baltimore's Patent, as it hath been, ever since, to this Time, and contained as a district Colony from that of Maryland ; so that their Lord- ships humbly offer their Opinion, that, for avoiding fur- ther Differences, The Tract of Land, lying between the River and the Eastern Sea, on the one Side, and Chesapeake Bay, on the other, be divided, into equal Parts, by a Line, from the Latitude of Cape Hinlopen, to the 40th Degree of Northern Latitude ; and that one Half thereof, lying towards the Bay of Delaware and the Eastern Sea be adjudged to belong to his Majesty, and that the other Half remain to the Lord Baltimore, as comprised within his Charter. Council Chamber 7th of November 1685. His Majesty, well approving of the said Report, It was, thereupon, Ordered, by his Majesty in Council, That the said Lands be forthwith Divided accordingly. Whereot the said Lord Baltimore and William Penn Esq; together with their respective Officers, and all others whom it may concern, are to take Notice, and give due and ready Obedience thereunto. This is proved by Dickinson, and is Exhibit Co-off. No. 4. Note. And thus ended this first Contest wherein many Things clearly appear. 1. That Lord Baltimore and his Council were fully heard, Great Numbers of Times, and had such Indulgence that BOUNDARY QUESTION. 407 they ordered him Copies of Mr. Perm's Proofs. 2. That, throughout the whole Process, it is, from time to time, taken notice of as a Dispute between Lord Baltimore and Mr. Penn, and is expressly called so in the Minutes and Acts of Council, although at the same time Mr. Penn did hold under the Duke's Deeds and Covenants, and under Rent to the Duke, and, there- fore, additionally, took into his aid the Duke's Name and Right. 3. That it was, in this Contest, that the then Lord Baltimore first trumpt up the pretended Order of Council about Clay borne of 4 April 1638, and then gave it up again. 4. That there was a flat Judgment against Lord Baltimore, that Delaware, (the Tract of Land then in Dispute) did not belong to him, and the only Doubt was, What were the true Boundaries of Delaware? 5. That a Proposition was made then, for Peace sake, and to prevent further Differences, how it should be bounded, and Time given to Lord Baltimore to offer any Objections to that Pro- posal. 6. That the Order, then made, for a Division, was to extend Southwards, down to Cape Hinlopen, and Northwards, not a Hair further than to the Head of Chesapeak Bay, (whereas, now, we have granted him a great many Miles higher than that) For, The Land, which was to be divided, was such as lay between Delaware River and Bay, and the Sea, on one Hand, and Chesopeak Bay, on the other. 7. Another Matter which confined the Northern End to that dividing Line is very express and remarkable, and falls in exactly with our Construction of Lord Baltimore's Patent and with the express Words of the Pensilvania Patent ; for, that Dividing Line was, by this Order, to run from the Latitude of Cape Hinlopen to the 40th Degree of Northern Latitude; but not, through all that Degree, up to the 41st Degree. 8. AH the World understood this as a Judg- ment in the Favour of Mr. Penn, who was all along said tjo have been a Party in the Contest; Indeed, nominally, it was said one Half should belong to his Majesty, the Duke of York being then become King. But, the very Order, itself, is di- rected to my Lord Baltimore and William Perm Esq; and their respective Officers, to take notice of it, and give due Obedience to it; and, had the King and Council intended to have tript up the Tenant Mr. Penn's Title, it had been a little hard and unnatural to have ordered him to run a Line, in order to g-et Land meerly for the King, but not for himself. If it be askt why, after this Determination was made, Mr. Penn did not get further Assurance from the King? The Answer is, that tho' it was agreed and ordered how the Lower Counties should be divided, yet. the Line of Division was not run, but was still to be done. And even yet remains to be done. We hoped to have done it by means of the Agreement of 1732, 408 PENNSYLVANIA AND MARYLAND but that Agreement the Defendant will not execute. And, till the Division Line should be run, no regular Conveyance could be made. And that Division Line not being run in that King's Time, (who abdicated before the 7 Years which were mentioned in his Covenant expired) Mr. Penn therefore could not, at any Time hitherto, apply for further Assurance. Chap. VIII. From the first Determination of the King in Coun- cil of the 13th of November 1685, down to the second Deter- mination in the Plaintiffs Favour in the Year 1708. 1685, Dec. 10. From the Records in Sussex County. At a Court held in the Name of William Penn Proprietary and Governor of Pensilva- nia, and the Territories, at Lewes for the County of Sussex, the 8, 9, and 10th Days of December 1685, Iwottama Samam, the In- dian Shackamacker of Assawawmat, signed, sealed and delivered an Indenture of Sale for 1000 Acres of Land to Norton Claypoole, called the Indian Grove, scituate on the South side of the In- dian River, and acknowledge the Sale thereof to the said Clay- poole, according to the Indenture of Sale signed in the Docket by Justice Watson, one of the Members of the Court. Also the same Shackamacker signed, sealed and delivered an Indenture of Sale for 500 Acres of Land, scituate on the North side of the Indian River, to Matthew Taylor Merchant of New York, and acknowledged the Sale thereof according to the Indenture of Sale. Sussex Records, No. 17. Fol. 26. Note. Neither of these Indentures appear : neither are they said to be recorded. This shews, however, that Courts were held in Mr. Penn's Name, that those Courts exercised Jurisdiction on both sides of Indian River, and that the Lands, about Indian River, were not then settled, but were, piece by piece, bought, from time to time, from the Indians then. And you remember there was an Order of Sussex Court made on 1 January 1680, that none should seat down on Lands, till they brought the Indians to Court to acknowledge they had sold those Lands. 1686, Sept. 14-16. From the Sussex Records, an Indenture made in the 7th Year of the Proprietary Government, between John Oakie of the County of Sussex in the Territories of the Province of Pensil- vania of the one Part, and John Barker of the other Part, It recites the forementioned Grant, from Proprietary Penn's Com- missioners, to John Oakie, dated the 27th of January 1684, of Mulatto Hall, on the South side of Indian River, containing BOUNDARY QUESTION. 409 800 Acres, now the said Oakie, in Consideration of 307. alienates unto John Barker 400 Acres, being one Moyety thereof; with Warranty against all Persons, the Rents from henceforth to grow due to the Proprietary only excepted. And there is an Act of the Court held at Lewis for the County of Sussex the 14, 15 and 16th of September 1086, endorsed on the said Deed, and signed by the Clerk of the Court, that Oakie acknowledged that Sale and Conveyance according to the Contents there within written. Sussex Records, No. 17. Fol. 30. 31. 4° Will. & Marice, 1691. Oct. 25. From the Chappel of the Rolls, a Commission under the Great Seal, from King William and Queen Mary, to Benjamin Fletcher Esq; It recites that Colonel Fletcher had, by Letters Patent under the Great Seal of the 18th of March then last, been appointed Governor of New York. It also recites, Fol. 4. That, by reason of great Neglects and Miscarriages in the Gov- ernment of our Province of Pensilvania in America, and the Absence of the Proprietor, the same was fallen into Disorder and Confusion; by means whereof not only the Publick Peace and Administration of Justice (whereby the Crown's Subjects should be preserved in those Parts) was broken and violated, but there was also great Want of Provision for the Guard and Defence of the said Province against the Enemies of the Crown, whereby the said Province, and the adjacent Colonies, were much exposed, and in Danger of beiDg lost from the Crown of England. For the Prevention whereof as much as in us lies, and for the better Defence and Security of our Subjects inhabiting those Parts, during this Time of War, we find it absolutely necessary to take the Government of our Province of Pensilvania into our own Hands, and under our immediate Care and Protection. Therefore constituted and appointed Colonel Fletcher to be Captain General and Governor in Chief in and over our Pro- vince of Pensilvania and Country of Newcastle and all the Tracts of Land depending thereon in America; and commanded him to take the said Province and Country under his Govern- ment. And, for the better governing and ruling the said Province and Country, and the Tracts and Territories depending thereon, their Majesties gave and granted unto the said Colonel Fletcher, all and every the like Powers and Authorities, as by the former Commission was given and granted to him for the ruling and governing of New York ; To be exercised, in like manner, by Colonel Fletcher, in and over our said Province of Pensilvania and Country of Newcastle, and the Territories and Tracts of Land depending thereon in America. 410 PENNSYLVANIA AND MARYLAND And to appoint, and suspend, a Lieutenant Governor, and a Council there. To hold, exercise and enjoy the said Office and Place of Cap- tain General and Governor in Chief in and over our Province of Pensilvania and Country of Newcastle, and the Territories and Tracts of Land depending thereon in America, during our Will and Pleasure. This Copy is proved by Mr. Bulmer and is Exhibit Rocha, No. 7. Note. This Commission was proved not so much with any design to make use of it in our favour, as to obviate any Objection that might be made against us, that the Crown, once, took the Government from Mr. Penn ; which, you are pleased to observe, was not of the lower Counties only, or upon account of any Defect of Title in Mr. Penn, but, for Reasons of State ; and the Crown took the Government of Pensilvania itself from Mr. Penn, as well as that of the Lower Counties. Indeed, King William did not greatly confide in Mr: Penn, nor in the then Lord Baltimore (who was a Roman Catholick) and his Majesty wanted both their Governments- into his own hands. Sundry Lawyers Opinions were taken thereon, at length, the Crown was advised that, for Reasons of State, it might be done; and thereupon, for Reasons of State it was done, both as to Mr. Penn and Lord Baltimore also. But Mr. Penn so very well cleared himself to the Satisfaction of the Crown that his Government was restored to him in less than 22 Months from the Date of this Commission, even during that War: Whereas the Crown kept the Government of Maryland in their own Hands, above 25 Years, from 1691 to 1716, before they restored that to the Lord Baltimore. 1692, Nov. 10. From the Records in Sussex County an Indenture of this Date between John Barker of the County of Sussex annext unto the Province of Pensilvania and Peter Waples late of the County of Somerset in the Province of Maryland, but now of the fore- said County of Sussex Planter; reciting Patent granted by Pro- prietary Penn's Commissioners on 25 September 1691, unto one Richard Patte deceased, of a Tract of Land on the South side of the Indian River at the Head of a Neck of Land called Pine- Neck in the said County of Sussex, containing 800 Acres of Land, and that John Patte, Son and Heir of Richard Patte, had con- veyed the same to the said John Barker ; now the said Barker, for 4500 Pound of Tobacco, conveys the same to the said Peter Waples, warranted against all Incumbrances, the Rents from henceforth to grow due to the Proprietor only excepted. BOUNDARY QUESTION. 411 With an Endorsement thereon attested by the Clerk of the Court that at a Court held at Lewis for the said County of Sussex on 5th September 1694, Barker acknowledged that Deed in open Court. Sussex Records, No. 17. Fol. 32. 33. 6° Will. & Maria, 1693, Aug. 20. From theChapell of the Rolls, a Commssion under the Great Seal to William Penn Esq; recites that, upon Information that by reason of great Miscarriages in the Government of our Pro- vince of Pensilvania in America, and the Absence of the Pro- prietor, the same was fallen into Disorder and Confusion, by means whereof not only the Publick Peace and Administration of Justice was broken and violated, but there was also great want of Provision for the Guard and Defence of our said Pro- vince against our Enemies, whereby it was apprehended that our said Province and the adjacent Colonies were much in danger of being lost, from the Crown of England ; For Pre- vention whereof, as much as in us lay, and for the better De fence and Security of our Subjects inhabiting those Parts- dur- ing this time of War, we found it absolutely necessary to< take the Government thereof into our Hands, and into our imme- diate Care and Protection, and did, thereupon, by Letters Patent of 21st October in the 4th Year of our Reign constitute and appoint Benjamin Fletcher Esq ; our Captain General and Governor in Chief in and over our said Province of Pensilvania and Country of Newcastle and all the Territories and Tracts of Land depending thereon in America, &c. And whereas humble Application has been made unto us, by our trusty and well beloved William Penn Esq ; Proprietor of our said Province of Pensilvania, that he may be restored to the Administration of the Government thereof, as formerly, And whereas the said Pro- prietor has given us good Assurance that he will take care of the Government of our said Province and Territories, and provide for the Safety and Security thereof all that in him lies. We have thereupon thought fit to restore him to the Adminis- tration of the Government of our said Province and Territories ; And accordingly our Will and Pleasure is that so much of our said Commission, bearing Date 21 October in the 4th Year of our Reign, as appointed Colonel Fletcher Governor of our said Province of Pensilvania, Country of Newcastle, and the Terri- tories and Tracts of Land depending thereon in America, to- gether with all the Powers, &c. thereby granted for the ruling and governing of our said Province and Country, do, from the Publication of these our Letters Patent, cease, determine and become void ; And accordingy, the same are hereby declared void ; Of which all Persons whom it may concern are to take notice 412 PENNSYLVANIA AND MARYLAND and govern themselves accordingly under Pain of our highet e Displeasure. This is proved by Mr. Buhner, and is Exhibit Rocha No. 8. Note. So that here the Crown layd no Claim to the Government of the Lower Counties, but restored the Government of the Terri- tories to Mr. Penn, as formerly. Sept. 5. From the Sussex Records, an Indenture between William Clark of the County of Sussex annext unto the Province of Pen- si lvania, Merchant, of the one Part, and Peter Waples of the aforesaid County of the other, reciting that Proprietary Penn's Commissioners did by their Patent of 7 September 1691, grant to the said William Clark a Tract of Land, on the South side of Indian River, in the said County of Sussex containing 400 Acres. Now for the Consideration of 4300 Pound of Tobacco Clark conveys the same to Waples, free of all Demands, the Rents and Services from henceforth to grow due to the Proprietor and Government only excepted. With an Endorsement signed by the Clerk of the Court that Clark acknowledged that Deed in open Court held at Lewis for the said County of Sussex upon 5 September 1694. Sussex Records, No. 17. Fol. 34. 1694, March 6. At a County Court or Court of Common Pleas held in their Majesties Names at Lewis for the County of Sussex on the 6th and 7th Days of March 1694, before the Justices of the said Court, after several Proceedings there stands recorded thus, The Court caused a Letter to be written, to the Justices in Maryland, re- lating to some Difference between the two Governments; and ordered the Clerk to record the Letter, which follows there, and is to this Effect; We their Majesties Justices of the Peace, in Court sitting, are given to undarstand that John Barker and Charles Tindall, Inhabitants on the South side of Indian River, within this County and Government, stand bound over to your Quarter Sessions, for not owning the Authority of your Govern- ment, thought fit to signify to you that most of the Lands, on the said South side of the said Indian River, and particularly the Lands that they live upon, were taken up, and surveyed by Grant, when this Place was under the Government of New York, and since patented under William Penn Esq; absolute Proprie- tary; and that the said above-named Persons possess their said Lands by the said Right; and have, all along, paid Rents and Duties unto the said Proprietor and Government ; And whereas some of your County have pretended something of an Order of King and Council, that the Tract of Land, lying between the BOUNDARY QUESTION. 413 River and Bay of Delaware on the one side, and Chesopeak Bay on the other side, be divided in two equal Parts, by a Line, from the Latitude of Cape Inlopen, to the 40th Degree of Northern Latitude, and that one half thereof lying towards Chesapeak Bay remain to the Lord Baltimore, and that half Part lying towards the River and Bay of Delaware unto Wil- liam Penn Esq ; But, if any apprehend so, they are under a great Mistake, for, the Order of King and Council is, That, for avoiding further Differences, the Tract of Land lying between the River and Bay of Delaware and the Eastern Sea on the one part, and Chesapeak Bay on the other, be divided into equal Parts, by a line from the Latitude of Cape Henlopen to the 40th Degree of Northern Latitude, and that one half thereof, lying towards the River and Bay of Delaware and the Eastern Sea be adjudged to belong unto his Majesty, and that the other half remain to the Lord Baltimore as comprised within his Charter. Now, some of your Government have, also, alledged that Cape Henlopen, and Cape Inlopen, are one and the same Cape, which, likewise must be a great Error; for, if so, there had been no need for the King and Council to have mentioned the Eastern Sea in the said Order. All which, being duly de- liberated, Quere, Whether it be not most fit to abstain all Acts of Violence, and Breach of good Neighbourhood, on either part, till such time as the Division be made and completed according thereto ; which we believe will not be long. These things we have agreed to offer to your Consideration, and may conduce to the Relief of the said Barker and Tindall. Sussex Records, No. 17. Fol. 35. 36. 7 c6 8° Will. Mii, 1696. An Act of Parliament was past, for preventing Frauds and regulating Abuses in the Plantation Trade, which contained many new Regulations for the Plantations in divers Respects. By the 4th Clause, all Governors in the Plantations were to take an Oath to observe the Acts of Trade. By the 9th Clause, all Laws of the Plantations contrary to the Acts of Trade therein mentioned then in Being, or repugnant to the then present Act, or to any future Act which should relate to the Plantations, were declared null and void. By the 12th Clause Places of Trust in the Colonies were to be in the hands of native- born Subjects. By the 16th Clause Persons claiming a Right or Propriety in any Islands or Tracts of Land on the Continent of America by Charter or Letters Patent should not alien or sell the same other than to the natural born Subjects of England, Ireland, Wales, or Berwick upon Tweed, without Licence from the Crown by Order in Council And by the latter Part of the same Clause. "All Governors nominated and appointed by 414 PENNSYLVANIA AND MARYLAND " any such Persons or Proprietors who shall be intitled to make "such Nomination, shall be allowed and approved of by his "Majesty, his Heirs and Successors as aforesaid, and shall take "the Oaths appointed by this or any other Act to be taken by "the Governors or Commanders in Chief in other his Majesty's " Colonies and Plantations, before their entering upon their re- " spective Governments, under the like Penalties as his Majesty's "Governors and Commanders in Chief are by the said Acts "liable to." Printed Act of Parliament 7 & 8 W. 3. 8th & 9th Will. 3d, 1696. An Act of Parliament was past intitled, An Act for making good the Deficiency of several Funds, &c. and for enlarging the Capital Stock of the Bank of England, &c. By a Clause wherein, the foregoing Clause in the last Act of Parliament is recited, and that thereby all the then present Governors and Commanders in Chief of any English Colonies and Plantations were, before the 25th of March 1697, and all who should be made Governors, before their entring into their Government should take an Oath to observe the Acts of Trade therein mentioned. Noav, further Time is given for admiuistring that Oath, to the then present Governors, and such Oath was to be taken before such Persons as his Majesty should appoint. Printed Act of Parliament 8. & 9. W. 3. 9° Will. Uii, 1697. Apr. 30. A Commission under the Great Seal of England entred upon the Records of Pensilvania directed to Edward Randolph, Robert Quarry, Richard Holliwell, Edward Chilton, John Moor and Jasper Yeates, Esquires or any 5 of the Members of the Council, and the Collector of our Customs for the time being, within our Province of Pensilvania, reciting the said Clause in the Act of the 8th and 9th of King William. And reciting that the Persons appointed to administer the said Oath were by some Accidents prevented from performing the same within the Time limited by the said Act; To the end the good Intent of the said Act might not be disappointed for want of time to put the same in Execution, it had been enacted that further Time should be allowed for administring the said Oath, the King therefore appoints and authorizes the said Persons, or any 3 or more of them, to administer the Oath thereunto annext, unto the Governor or Commander in Chief of the said Province of Pensilvania. Pensilvania Records, No. 7. Fol. 4. March 17. Prom the Pensilvania Records Copy of an Entry of an En- dorsement on the said Commission, that by vertue of those Let- ters Patent, William Markham Esq; Governor under William BOUNDARY QUESTION. 415 Penn Esq ; absolute Proprietor of the said Province and Terri- tory thereunto belonging, made Oath as was therein directed, signed by 4 of the Commissioners. Pensilvania Records, No- 7. Fol. 6. 1698, May 27. From the Pensilvania Records, Copy of an Entry of another Endorsement on the said Commission, that William Markham, Lieutenant Governor of the said Province (by vertue of a late Commission, granted to him by William Penn, absolute Pro- prietor and Governor of the said Province and Territories thereunto belonging) took the Oath there within directed, in full Council, held at Philadephia; because a Quorum of the Commissioners (expresly) named in that Commission could not be got together at that time. Pensilvania Records, No. 7. Fol. 6. Note. In such Case the Commission was directed to the Members of the Council. 1700, Sept. 13. From the Pensilvania Records an Indian Deed, whereby Wida- agh alias Orytaah, and Andaggy-junkquogh, Kings or Sach- emas of the Susquehannagh Indians, and of the River under that Name, and Lands lying on both sides thereof, do declare that, in Consideration of a Parcel of Indian Goods, to them given by their Friend and Brother William Penn, Proprietary and Governor of Pensilvania, and also in Consideration of the former much greater Costs and Charges the said William Penn had been at in treating about and purchasing the same, did give, grant and confirm unto the said William Penn, All the said River Susquehannagh, and all the Islands therein, and all the Lands scituate lying and being upon both sides of the said River and next adjoining to the same, extending to the utmost Confines of the Lands which are, or formerly were, the Right of the People or Nation called the Susquehannagh Indians, or by what Name soever they were called or known; and also all Lakes, Rivers, Rivulets, Fountains, Streams, Trees, Woods, Underwoods, Mines Royal and other Mines, Minerals, Quarries, &c. and other Royalties, Privileges and Powers, whatsoever, to them or any of them belonging, or by them en- joyed, as fully and amply in all respects as they, or any of their Ancestors, had or could have held and enjoyed. And all the Right, Title, Interest, Possession, Claim ind Demand of them, or the said Nation, or any in Right of the same. And do hereby ratify and confirm unto the said William Penn the Bargain and Sale of the said Land, made unto Colonel 416 PENNSYLVANIA AND MARYLAND Thomas Dongan, now Earl of Limerick, and formerly Governor of New York, whose Deed of Sale to the said Governor Penn, we have seen. To hold the said River, Lands and Premises to Mr. Penn in Fee. Pensilvania Records, No. 7. Fol. 6. 1701, Apr. 23. From the Pensilvania Records, Copy of Articles of Agreement between William Penn, Proprietor arid Governor of the Pro- vince of Pensilvania and Territories thereunto belonging, on the one Part, and Connoodaghtoh, King of the Indians inhab- iting upon and about the River Susquehannah in the said Pro- vince, and Widaagh alias Orettyah, Koqueeash, and Andaggy Junkquagh, Chiefs of the said Nations of Indians, and Wopath- tha, King, Lemoycungh and Pemoyajooagh, Chiefs of the Nations of the Shawonnagh Indians, and Abookassoough, Brother to the Emperor, for and in behalf of the Emperor, and Wewhinjouh, Cheequittah, Jakyewsan, and Woopackoa, Chiefs of the Nations of the Indians inhabiting in and about the North- ern Part of the River Pottomock in the said Province, for and in behalf of themselves and Successors, and their several Nations and People, on the other Part. That as there always had been a good Understanding and Neighbourhood, between Mr. Penn and his Lieutenants, ever since his first Arrival in that Pro- vince, and the several Nations of Indians inhabiting in and about the same, so it agrees that there should be, for ever, a firm and lasting Peace continued between them, and they should live as one Head and one Heart, in true Friendship and Amity, as one People. And many particular Clauses there are therein, for doing Justice to each other, and that the Indians, whilst they lived near or among the Christian Inhabitants, should observe the Laws of the Government, and have the Privileges thereof, as any other Inhabitants. They acknowledging the Authority of the Crown of England, and Government of that Province; and several Clauses about Trade. And the Indians of Conestogo ratify the Indian Sale made to Mr. Penn the 13th of September last. Pensilvania Records, No. 7. Fol. 7. Now Mr. Penn came over from Pensilvania and appointed a new Lieutenant Governor, fur the first time, after the Act of Parliament of the 7th and 8th of King William had been made , But from 1682, to this Time Mr. Penn had governed the Lower Counties by himself and his Deputies without signing any De- claration to the Crown. 1702, Nov. 11. The Board of Trade made a Representation to the Queen in Council, that they had, in Obedience to the Queen's Commands, signified to them by Secretary Hedges, upon the Petition of Mr. BOUNDARY QUESTION. 417 Penn, that Colonel Andrew Hamilton, appointed by him to be Deputy or Lieutenant Governor of Pensilvania, might have her Majesty's Approbation for the executing of that Trust, for one Year only, lately represented to her Majesty, before, that, having beenlinformed the said Hamilton had been a Favourer of illegal Trade with Scotland and other Parts, they did not think it for the Queen's Service that he should receive the Queen's Royal Approbation as Lieutenant Governor of that Province. But the Queen having, now, signified to them her gracious Inclination to gratify Mr. Penn in his present Request, and considering the absolute Necessity which he alledges for a temporary Approbation of the said Hamilton, their Lordships humbly offer that Security be given to her Majesty in 2000Z. at least, by Mr. Penn, or other Persons, for Hamilton's duly ob- serving the Acts of Trade, &c. as is usually done for the Pro- prietary Governments; " provided always that your Majesty's " Favour herein be not construed or extended in any manner to diminish or set aside your Majesty's Right and Title to the three lower Counties upon Delaware River adjoining to Pensilvania [Note these last Words are more softened upon future Appro- bation] ; And their Lordships take this occasion to pray the Queen's Order to Mr. Penn that he be obliged to return a speedy Answer in Writing to four Queries which they had delivered to him in May last, which much imported the Good of the Trade and Settlement of those and the neighbouring Parts. Co. Off. No. 5. Same Day. The Queen's Order in Council, stating that Representation verbatim, and approving the same, and declaring her Majesty's Allowance of the said Andrew Hamilton to be Deputy Governor for the said William Penn, of her Majesty's Province of Pensil- vania, and Territories thereunto annext, for one Year only; pro- vided that the usual Security be first given 'as aforesaid that Hamilton shall duly observe the Acts for better regulating the Plantation Trade, and obey such Instructions, relating there- unto, as he shall receive from her Majesty, or any acting under her Authority ; And provided also that the said William Penn do forthwith return to the Lords of Trade an Answer to the said four Queries ; And do further declare, under his Hand, that her Majesty's said Allowance shall not be construed in any manner to diminish or set aside her Majesty's Right and Title to the three Lower Counties upon Delaware River; And the Lords of Trade are to take care that good and sufficient Security be given to her Majesty as aforesaid. Co. Off. No. 5. 27— Vol. XV. 418 PENNSYLVANIA AND MARYLAND Jan. 21. * Another Representation from the Lords of Trade to the Queen in Council, That pursuant to the last Order they had required from Mr. Penn the several previous Conditions which were therein exprest, and having received from him a Certificate of Security, given in her Majesty's Remembrancer's Office, for 2000Z. for Hamilton's observing the Acts of Trade, in the same Form as had been done for other Proprietary Governments, As likewise a Declaration and Promise under Mr. Penn's Hand, that the Queen's Royal Approbation and Allowance of the said Hamilton to be Deputy Governor of the said Province and Ter- ritories should not be construed in any manner, to diminish or set aside her Majesty's Claim of Right to the said three lower Counties upon Delaware; and also his Answer to the four Queries; and that their Lordships were, then, considering, (upon the said Queries and Answer) the ascertaining of one current Rate or Value of Coin in the Plantations on the Con- tinent of America, also, the Pretentions and Claim of Mr. Penn to the Power of Government in the thr.ee lower Counties ; and. in the mean time, they conceived it absolutely necessary for her Ma- jesty's Service in those Parts, and agreeable to the Charter granted to Mr. Penn, that all Persons in Judicial, or any other Offices in Pensilvania and the said Lower Counties, should be obliged to take the Oath or Affirmation directed by the Law of England ; and that no Judge should be allowed to sit on the Bench, who should not first take the Oath or Affirmation of a Judge, as directed by the Law of England, and that all Persons who in England are obliged, and are willing, to take an Oath in any publick or judicial Proceeding, be admitted so to do by the proper Officers and Judges in Pensilvania and the said Counties, and in default thereof, or in case the said Judges refuse to ad- minister the same, that their Proceedings be declared void and null; and that the Queen's Pleasure herein should be signified to Mr, Penn, and to the several Judges of her Majesty's Courts within those Territories ; and, considering the Uncertainty of the Voyage to Pensilvania, they further proposed that the Queen's Approbation of the said Hamilton to be Deputy Gov- ernor of that Province should be extended to the 1st of May 1704, an, their Lordships made their Report, wherein they report, that having *(but that Grant is now found) BOUNDARY QUESTION. 437 examined the Matters, in Difference between the Lord Baltimore and William Penn Esq; on behalf of his then Majesty, concern- ing a Tract of Land called Delaware, they found the Land in- tended to be granted to Lord Baltimore, was only Lands un- cultivated and inhabited by Savages, and that the Tract of Land then in Dispute, was inhabited and planted by Christians, at and, before the Date of the Lord Baltimore's Patent, as it had ever since, to that Time, and continued as a distinct Colony from Maryland; so that their Lordships humbly offered their Opinion, that, for avoiding further Differences, the Tract of Land, lying between the River and the Eastern Sea on the one side, and Cheasapeak Bay on the other, be divided into equal Parts, by a Line from the Latitude of Cape Hinlopen to the 40th Degree of Northern Latitude, and that one half thereof, lying towards the Bay of Delaware and the Eastern Sea, be ad- judged to belong to his Majesty, and the otlier half to Lord Baltimore; which Report his then Majesty was pleased to ap- prove of, and to order the said Lands to be divided accordingly, and the Lord Baltimore and William Penn required to yield due Obedience thereunto ; Which Report was also confirmed 23d June 1709, by her late Majesty Queen Anne in Council. However, this Petition, on behalf of the Lord Baltimore, is a very great Argument that the Bill of 1683 to the late Duke of York, never passed the Great Seal, as on Mr. Penn's behalf is supposed, for that it being stopped, as must be presumed on that Petition or Grant, after that Matter settled, which was in 1685, in the Reign of the said Duke, when King of England, could not pass the Great Seal, in the Name of King Charles, to the Duke of York, then being King of England, but the Entry in the Hanaper Office might have been made when the Privy Seal was brought to the Great Seal, to be nassed into a Grant. On the whole matter, we humbly submit it to your Majesty's Consideration, whether it will not be reasoable that your Majes- ty's Title should be established by the Court of Chancery before any Grant should be made of the Premises; and if any Grant should be made, we most humbly submit it to your Majesty, whether the Claims of Purchasers or Grantees under Mr. Penn, who have improved that Part of the said three lower Counties, should not be established ; But if Mr. Penn should have a Title to the three lower Counties by vertue of the two Grants made to him by the late King James in 1682, when Duke of York, we have not received any Answer why he should not account, according to his Covenant in the last of the said Deeds, for the Moiety of the Rents, Issues and Profits raised by vertue of that Grant. All which is humbly submitted to your Majesty's Royal Wisdom. 438 PENNSYLVANIA AND MARYLAND Note. The foregoing Report on Lord Sutherland's Petition in 1716. was so little in his favour that he took nothing by it . It is very long, as here stated, and contains many Matters whereof you have had an Account before. But there is a Use instating it so fully, for you observe the Contents of it, and how fully and plainly the Objections to Mr. Penn's Title to the three lower Counties are therein stated; you also observe that Lord Baltimore was a Party to that Report (and the Opinion of the then Attorney and Sollicitor General that he had no Title) Now, the Lord Baltimore, who was a Party thereto, is the very present Defendant, who, notwithstanding that, in one Part of his Answer to our Bill at Fol. 222, would have it be believed that the Plaintiffs imposed upon him in respect to their Title to the three lower Counties, which is impossible to have been true considering he was a Party to the foregoing Report, and so, contrary to Truth, and his own knowledge of the Truth ; nay, indeed, he contradicts himself in his own long Answer, for it is but 14 Sheets before, \iz: at Fol. 208, he swears ha always knew and believed they had not a Title to the three Lower Counties, consequently they could not deceive him therein; Besides which, it will appear most manifestly, by and by, that it is of no manner of Consequence in the whole World, as to him, whether they really had, or had not, a Title to those Counties; since it is he that conveys those Counties to them, and not they to him. 1718. Mr. Penn made a Will (about 1712) sans Date, and a Confir- mation of it, dated 27 May 1712. By his Will taking notice, that his eldest Son was well provided for, by a settlement of his Mother's, and the Testator's Father's Estate: he devises the rest of his Estate in manner following: The Government of his Province of Pen&ilvania and Territories thereunto be- longing he devised to the Earls of Oxford and Poulett, on Trust to dispose thereof to the Queen, or any other Person, to the best advantage they could, to be applied in such manner as he should therein after direct; and he gave to his wife Hannah Penn, and sundry others (to the Number of 12 Persons) all his Lands, Tenements and Hereditaments in Pensilvania and the Territories thereunto belonging, or elsewhere in America, upon Trust to sell sufficient to pay his debts, and after Payment to convey to each of his Son William's three Children, Springett, William, and Gulielma-Maria in Fee 10,000 Acres each. And (afterwards) 10,000 Acres more to the Testator's Daughter Letitia; And all the rest of his Lands, Tenements and Heredita- BOUNDARY QUESTION. 439 merits in America to be conveyed by his said Trustees to and amongst his Children which he had by his then Wife, in such Proportions and for such Estates, as his said Wife should think fit, and made his said Wife sole Executrix. Original- Will, to be produced from Doctors Commons, and to which we have examined one of the Witnesses, Thomas Pyle, in this present Cause. July 30. Mr. Penn, the Patentee, died; leaving a son William Penn Junior, and a Daughter Letitia by his first Wife ; and leaving his second Wife Hannah Penn and four sons, the Plaintiffs John, Thomas and Richard Penn, and Dennis Penn (who is since deceased) and also a Daughter, Margaret Penm. by her. Chap. XI. From the Death of William Penn Esq ; the Proprie- tary, in 1718, to the Death of Mrs. Hannah Penn his Widow and Executrix, in 1726. 1718, Nov. 14. 18. Probate granted at Doctors Commons to Mrs. Hannah Penn the Widow and Executrix of the Will of her late Husband William Penn Esq; Original Probate under Seal. Original Deed Poll of Appointment, executed by Mrs. Hannah Penn, whereby she, in pursuance of the Powers vested in her by her late Husband's Will, directs and appoints all the rest and re- sidue of the Testator's Lands, Tenements and Hereditaments in Pensilvania and the Territories thereunto belonging, or elsewhere in America, that should remain after the Provisions in the Will in manner following, viz. Three undivided sixth Parts of the Province of Pensilvania, and of all Lands and Promts, &c. therein, to be conveyed, by the Trustees, to and to the Use of, her eldest Son, the now Plaintiff John Penn in Fee, and the other three 6th Parts thereof, to and to the Use of her three other younger Children, Thomas and Richard Penn (now plain- tiffs) and Dennis Penn (since dead) in Fee, as Joynt tenants. And as to the Lower Counties, and all, Lands therein, or elsewhere in America, she in like manner directed and ap- pointed the Trustees to convey three sixth Parts thereof to the said John Penn in Fee, and the other three sixth Parts to the said Thomas, Richard and Dennis Penn, and their Heirs, as Joynt tenants for ever. Proviso that if the said John Penn should not pay to his Sister Margaret Penn 1500Z. at her Mar- riage or age of 21, which should first happen, In such Case she appointed for her Daughter Margaret in Fee one third Part 440 PENNSYLVANIA AND MARYLAND of all that had been before appointed for the Use of her Son John. Deed of Appointment proved by Mr. Page. 1720. William Penn junior, eldest Son and Heir of Proprietary Penn died, leaving two Sons, Springett and William, and a Daughter Gulielma Maria. 1721, Octob. 23. The said Hannah Penn the Widow and her then Children, John, Thomas, Richard, Dennis and Margaret Penn, all Infants, brought their Bill in the Court of Exchequer, against the Earl of Oxford and Earl Poulett (to whom the Government had been devised, upon Trust to sell and apply the Produce in such manner as was intended to have been, but was not, afterwards directed) against the said Springett Penn the Grandson and Heir at Law of the Testator to establish the Will ; against the said Henry Gouldney, Joshua Gee and others, the Survivors of the Mortgagees, to redeem, and also against Richard Hill, Isaac Norris and others the surviving Trustees in the Will, to whom the Lands had been devised in Trust, for to execute their Trust; and also against William Penn the Grandson, Gulielma Maria the Grand-daughter (and her Husband Aubrey Thomas) Letitia the Daughter (and her Husband) of the Tes- tator, by his first Wife, who had Devises of 10,000 Acres each under the Testator's Will, and against his Majesty's Attorney General, to know whether the Crown would, or would not, go on with a Treaty that had been set on foot by the Earl of Ox- ford in 1711 and 1712, to purchase the Government from Mr. Penn for 12,0002. 1722, Feb. 6. Dennis Penn the Son of the Testator died an Infant and Without Issue. 1722, 1723, 1724. And many answers of the Defendants were put in thereto. Copy of Bill and answers proved by Mr. Weston, Exc. No. 1, 2, 3, 4,. 5, 6, 7, 8. . 1733, Feb. 17. There was such an Agreement in Writing between the said Hannah Penn and the Lord Baltimore, not to grant out Lands upon the Borders wh}ch had been contested, for 18 Months; in which Time 'twas hoped the Boundaries might have been set- tled : and also such Proclamations afterwards publisht by the Lieutenant Governors in both Provinces, notifying that tempo- rary Agreement, as the Plaintiffs have charged at Fol. 154. in their Bill, and which the Defendant has fully admitted at Fol. BOUNDARY QUESTION. 441 192. of his Answer; but such Agreement, having been mislaid, is not proved in the Cause. 1724, Octo. 6. A Maryland Act of Assembly for repealing Part of the last mentioned Act made in Maryland in 1715; enacting that such Part of that former Act as imposed 9d. a Gallon on Rum, Spirits, Wine and Brandy to be imported from Pensilvania and the Territories thereto belonging by Land, should be repealed ; but this not to exempt Persons bringing the said Liquors from Pensilvania by Land from paying the other Duty of 3d. per Gallon, which is declared to be still due and payable. Mary- land Statute Book, Fol. 263. Mr. Gouldney, one of the principal Mortgagees died. 1725, Octob. 23. The said Hannah Penn, John, Thomas, Richard and Mar- garet Penn, filed their Bill of Reviver in the Exchequer, against the Executor of the said Gouldney, Exe. No. 9. Nov. Petition from Lord Sutherland again, to have a Grant of the three lower Counties ; and Reference of the same by the Duke of Newcastle to the Attorney and Sollicitor General. These are to be proved viva voce on the Hearing, there is nothing ma- terial in them, only to shew that Lord Sutherland had such a second Petition depending, and thereby to warrant Paris's Deposition, who speaks of several Hearings that there were before the Attorney and Sollicitor General on that Petition. Exhibit Sec. Off. During that Suit in the Exchequer, though carried on very adversarily between Mrs. Penn and her Children on the one side, and the Heir at Law of the Proprietor on the other, they both agreed, thus far, to turn out the Deputy Governor Mr. Keith (then become Sir William Keith) and to appoint another, viz. Patrick Gordon. Jan. 7. From the Records in Newcastle County, The Commission Avhich was this Day granted by Sprine-ett Penn Esq; Grandson and Heir at Law of William Penn Esq ; by and with the Ad- vice and Consent of Hannah Penn, widow and Executrix of the said William Penn, testified by her signing and sealing the same, appointing Patrick Gordon to be Lieutenant Governor of the said Province of Pensilvania and Counties of Newcastle, Kent and Sussex. Newcastle Records, No. 11. Fol. 97. 98. Mar. 4. A Report from the Committee of Council made upon the Re- 442 PENNSYLVANIA AND MARYLAND presentation (which had been referred to them the 12th of Feb- ruary last) of Springet Perm Grandson and Heir at Law of William Penn Esq: deceased, and Hannah Penn the Executrix of the said William Penn, humbly recommending Major Patrick Gordon to be Deputy or Lieutenant Governor of Pensilvania and of the Counties of Newcastle, Kent and Sussex on Delaware in America, in the room of Sir William Keith; and praying his Majesty's Approbation of him accordingly; and which Re- port was also made upon a Petition presented by Colonel Spots- wood on behalf of Sir William Keith, and upon another Peti- tion presented by the Creditors of Sir William Keith, praying that Sir William might not be removed ; their Lordships re- ported that they had received a good Character of Major Gordon, and offered their Opinion that his Majesty should be pleased to declare his Allowance and Approbation of Major Gordon to be Deputy Governor of the Province of Pensilvania without Limitation of Time, and of the three Counties of Newcastle, Kent and Sussex, during his Majesty's pleasure only, provided the said Gordon qualified himself, and gave the Security; and provided that the said Springet and Hannah Penn made a Declaration, in such manner as had been formerly made by the said William Penn, relating to his Majesty's Right to the said three Counties. Co. Off. No. 22. 1725, March 11. The King by Order in Council, made upon reading that Re- port, ordered just in the same Words as proposed ; and directed the Lords of Trade to take care that the said Security was given, and Declaration made accordingly. Co. Off. No. 22. 1726, Apr. 18. By another Order in Council reciting the last Order and that the Lords of Trade had this Day reported that they had re- ceived a Declaration and Promise under the Hand and Seal of the said Springett Penn, and the like under the Hand and Seal of the said Hannah Penn, that his Majesty's Approbation of the said Gordon to be Deputy Governor of the said Province and of the three Lower Counties should not be construed in any manner to diminish or set aside his Majesty's Claim of Right to the said lower Counties; and that they had also re- ceived a Certificate of Security given in the Exchequer, of 20007. for Gordon's observing the Acts of Trade, His Majesty in Council declared his Royal Approbation of the said Gordon to be Deputy Governor of Pensilvania without Limitation of Time, and of the said three lower Counties of Newcastle, Kent and Sussex, during only his Royal Will and Pleasure. Co. Off. No. 23. This last foregoing Order is also entred in Newcastle Records, No. 11. Fol. 99. BOUNDARY QUESTION. 443 Deo. 13. A Decree was made in the said Cause in the Exchequer, but that was, unless Cause, for the Heir at Law, and all the Rela- tions of the Family, by Mr. Penn's first Wife, made Default at the Hearing. Exc. No. 10. Dec. 20. Mrs. Hannah Penn died. Chap. XII. From the Death of Mrs. Hannah Penn in December 1726, down to the time of Beginning the Treaty with Lord Baltimore for the Agreement now in Question. 1727, Apr. 20. The said John Penn, Thomas Penn, Richard Penn, and Mar- garet Perm (after their Mother's Death) brought their Bill of Revivor of the Suit in the Exchequer. Exc. No. 11. May 15. Order to revive the said Cause. Exc. No. 12. July 4. The Cause in the Exchequer came on again, and all Parties appeared, and the Court declared that Mr. Penn's Will and Declaration or Confirmation dated 27 May 1712, were duly proved. But, as concerning all other the Matters and Things in the Cause, ordered it should stand to be heard the then next Michaelmas Term. Paper Copy of the Decree, Exc. No. 13. And Exemplification of that Decree under the Seal of the Court of Exchequer. July 5. A Family Deed of Indenture Sextipartite between the Plain- tiffs John, Thomas and Richard Penn, and their Sister Mar- garet Penn, together with Thomas Freame (whom she was then going to marry with) and two Trustees Joseph Wyeth and Sil- vanus Beavan. Reciting Mr. Penn's Will, and Mrs. Hannah Penn's Appointnientwhereby 1500Z. was secured for the Daughter Margaret, (And reciting a subsequent Appointment of Mrs. Hannah Penn's, after the Death of her Son Dennis, which it's now thought she had no Power to make, having before executed her Power, neither, if the second Appointment we.e good, would it all vary the Plaintiffs Title,) And reciting the said Decree, and Mrs. Hannah Penn's Will, and sundry Diffi- culties arising thereon, and many other Matters; For settling all Difference it's agreed, inter alia, that the said John Penn his Heirs and Assigns shall hold and enjoy one Moyety of all the Testator's Estate in America (subject to a Provision herein 444 PENNSYLVANIA AND MARYLAND after made for the said Margaret) And that the said Thomas and Richard Penn their Heirs and Assigns shall hold and enjoy the other half Part thereof as Tenants in common, and not as Joynt tenants ; Proviso that JohnPenn's Moyety shall be subject to pay to the said Margaret 500/. and also an annuity of 50/. during her Life, to be paid to her separate Hands, and also Avith Payment of 1000/. in three Months after her Death, to the said Wyeth and Beavan in Trust for her Children, in such manner as she shall appoint. And all the Parties thereto agree that the Trustees, named in their Fathers' Will, shall convey the Lands accordingly. Deed proved by Mr. Page. 1729, Jan. 13, 14. Indentures of Lease and Release being a Reconveyance from Joshua Gee and John Woods (who were the two only surviving Mortgagees) of all the mortgaged Premises unto John Penn and Thomas Penn their Heirs and Assigns; as to one Moyety to the Use of the said John Penn in Fee ; as to one Quarter Part to the Use and behoof of the said Thomas Penn in Fee; and as to the other Quarter Part to the Use of the said John Penn and Thomas Penn in Fee, but in Trust for the said Richard Penn his Heirs and Assigns. Note, Mr. Richard Penn being then married was the Reason why the legal Estate was not vested in him, only the Trust thereof. Original Deeds cf Conveyance proved by Mr. Page. 1730, Dec. 30. Springett Penn, who was the Grandson and Heir of Proprie- tary Penn, died unmarried, and his younger Brother, William Penn, the Grandson, became Heir at Law of Proprietary Penn. Chap. XIII. From the Beginning of the Treaty, to the Time of executing the. Articles of Agreement in Question, and the Commissions for running the Lines pursuant to the same. 1731, June 3. Was the Day (as will appear in Evidence) when the Parties to this Cause had the first Meeting, in order to the Agreement. June 3. The written Map then produced and markt and made use of by the Plaintiffs on their Parts, in order to the Agreement, which has some other Words writ upon it, but all the Lines and Outmarks are exactly agreeable to my Lord Baltimore's Map which was afterwards graved and stampt, or printed, on the Original Articles of Agreement. This Map is proved by Paris, and is the Exhibit Par. No 1. in a marbled Cover. BOUNDARY QUESTION. 445 The Treaty not proceeding at that time, but breaking off then, because at first, the Plaintiffs refused to agree to the De- fendant's Proposals, the Lord Baltimore petitioned the King as follows : July 1. The Defendant the Lord Baltimore petition'd the King, and set forth the Grant of Maryland, made to his Ancestor in 1632, and the Description of the Tracts of Land, as they are therein exprest; and, That the late William Penn, by Grant under the Great Seal, in the lear 1680, became Proprietor of the Province of Pensilvania, and his Descendants (as the Petitioner believed) still were Proprietors of the same. That there had been diverse Disputes, between the Petitioner's Ancestors, and the said William Penn, about the Northern Boundaries of the said Province of Maryland, and frequent Application having been made to His Majestys Royal Ancestors in Council, in order to settle and ascertain the same, not only in the Year 1685, 1708, but so lately as in the Year 1720, by the-Widow of the said Wil- liam Penn, and divers Letters and Orders had been sent by His Majesty's Royal Ancestors for that purpose; but theyhad hither- to bad no effect. That, by reason of the said Disputes, very great Numbers of the Petitioner's Tenants refused to pay any Rents, or to submit themselves to the Petitioner's Government, or really to any, which occasioned frequent Disputes, notwith- standing the Petitioner's great Care to prevent the same. He therefore prayed the King to order the Proprietors of the Prov- ince of Pensilvania forthwith to join with him in settling and ascertaining the said Boundaries; and, in case they refused to comply therewith, or in case the same should not be settled and ascertained within the Space of twelve Months from tnat time, that then, and in that case, the King would hear the Matter in dispute, and give such Order, and make such Deter- mination, touching the the same, as to His Majesty should seem meet. Co. Off. No. 24. If that Petition had any Meaning at all, surely it must be to carry into execution the Order of 1685, which is mentioned in that Petition ; and which Order of 1685, expresly adjudged the Right to the three lower Counties, against him and had contained Directions for settling the Bounds of those lower Counties; but which Bounds had not, indeed then, nor yet neither, been ever run out. July 1. It was ordered that the said Petition should be refen*ed to a Committee of the Lords of His Majesty's most Honourable Privy Council, to consider the same, and report their Opinion thereupon to His Majesty. Co. Off. No. 25. 446 PENNSYLVANIA AND MARYLAND July 22. The written Heads for an Agreement, then produced by Lord Baltimore, and whereof a Copy, full of Abbreviations, was soon afterwards delivered by the Defendant's Sollictor to the Plain- tiff's Sollicitor, is in the following Words, viz. 1. There shall be a Circ. of 12 M. dist. drawn from Newcastle. 2. The Proprs. of Pensil. shall be entituled to 15 Miles Soth of Phi la. by a West Line drawn from the Point of the Soth and North to the extent of their West Limits comprised in the Charter of Pensa. , 8. There shall be a Line South drawn from the East and West Line aforesaid, which shall intercutt the Periphery of the Circ. of 12 Miles frorn Newcastle, untill it intercutt the Parallel of an East and West Line drawn, the Promontory or Cape called Cape Hinlopen at rect Angles. 4. The Lord Baltimore, to quit all Pretensions to the three lower Counties (known to be at present comprised within the Limits aforesaid, that is to say, within the 12 Miles Circle of Newcastle and the North and South Line drawn as aforesaid on the West, and the Bay of Delaware on the East. 5. The Proprtrs. of Pensa. to quit all Pretensions to any Land to the Southward of the Line of 15 Miles from Phil. , and to the West of the North and South Line heretofore described, and for the Considerations aforesaid convey to the Lord Balti- more, all Right and Title they may have thereunto belonging. 6. For the quieting the present Possessors of the Lands in dispute, and the better informing the respective Proprietors of the Provinces aforesaid, it is agreed by the Parties contracting that it shall and may be lawful for each Proprietor to have Copys at their respective Costs and Charges of the Grants, Patents, and Leases, &c. by which any of the present Claimants held their Land. And moreover it is mutually agreed that fresh Patents, Leases, and Grants, shall be made out to all the Possessors of Land, Houses, &c. within the present disputed, and by this de- termined, Boundary without any Fines or Arrearages of Rent whatsoever, provided they become Tenants to the respec- tive Provinces, subject to the Rents and Reserves common to the Landholders of the respective Provinces, subject never- theless to usual Fees to the proper Officers of the said Provinces for the taking out of any new Patents for the Lands or Tene- ments they at present are possessed of. This is proved by Paris, and is a very material Exhibit markt Par. No. 2. We have, most particularly, charged this Paper to be of the Defendant's own Hand-writing, at Fo. 179. of our Bill, and BOUNDARY QUESTION. 447 at Fo. 1415. we have demanded that he may produce it. He in his Answer, Fo. 257. admits there was such a Paper, but says it's mislay'd, but if he finds it, he will produce it. If he does not, the Reason is most obvious, for this puts an end to his Commissioners Doubt (which yet he says he approves of) whether the Circle should be 2 Miles or 12 Miles, from New- castle? For here, in two several Places, in his own Notes for drawing up the Agreement in Form, he says twi3e over, that the Circle shall be 12 Miles distant from Newcastle, and again 12 Miles from Newcastle. Note — The Defendant has proved, by his own Sollicitor Mr. Sharpe, that the foregoing Notes are lately found, and he sets forth an exact Copy of the same verbatim, in his Deposition. For which we are bound to thank him. And it's intended to move, that the Original may be produced at the Hearing by the Defendant, according to his Offer, now that it is found. Aug. 16. The Draught of the Articles of Agreement this Day delivered over to Mr. Sharpe, with his own Directions thereon, to Coun- sellor Wynne, and his own Marks and Notes thereon, that the Miles were to be mentioned English Statute Miles, &e. This Paper is proved by Serjeant Wynne, and by Paris, and is Ex- hibit, Par. No. 3. Aug. 19. Mr. Sharpe 's Letter to Mr. Paris, that he had perused the Draught of the Agreement between Lord Baltimore and Mes- sieurs Penns, and thought the same perfectly right, and had sent it that Night to Lord Baltimore for his Perusal, with a Desire to return it to him as soon as he had done with it, and the Moment it came back to Mr. Sharpe he would let Mr. Paris know it. This Exhibit is proved by Mr. Paris, and is Par. No. 4. This serves to prove the Length of Time taken to consider the Draught, from August 1731, to 10 May 1732. Sept. 22, 23. Indentures of Lease and Release, whereby William Penn, Grandson and Heir at Law of Proprietary William Penn, in Consideration of 5500?. Releases and Quits Claim to the said Province and Counties, unto the said John and Thomas Penn in Fee ; As to one Moiety to the use of John Penn in Fee ; as to one quarter Part to the Use of Thomas Penn in Fee ; and as to the other quarter Part, to the Use of John and Thomas Penn in Fee, but in Trust for Richard Penn, his Heirs and Assigns. Deeds proved by Paris. 448 PENNSYLVANIA AND MARYLAND Sept. 29. Bargain and Sale enrolled, by way of Mortgage, from John, Thomas and Richard Penn, of the Province of Pensilvania only, excepting thereout the Government and Powers of Government, to William Penn in Fee, for securing 5000Z. and Interest, proviso for Redemption. Deed proved by Paris. Feb. 12. By an Indorsement made on the Back of the Family Deed of 5 July 1727, Margarat (Penn) and her Husband Thomas Freame, release to the said John Penn the 500/. which had been there- within secured to her out of Mr. Penn's Moiety. Endorsement proved by Mr. Page. 1732, March 29. The new Clause, that Day delivered by Lord Baltimore, above 7 Months after the Draught of the Agreement had been delivered over, viz. "There must be a Clause to prohibit any of the "People of the respective Provinces to carry on any Commerce '• into the Bays of Chesopeak and Delaware, by the means of "any River or Rivers, leading from one of the Provinces afore- " said to the other, without the Leave of the Proprietor of the "Province to whom the said Bay doth belong." Proved by Paris, and is the Exhibit, Par. No. 6. April. That Copy of Mr. Senex's written Opinion of the Articles which he delivered to the Plaintiffs, viz. The Division, as described in the Articles. That there shall be drawn, so much of a Circle as is necessary, round Newcastle as a Center, at the Distance of 12 English Statute Miles. That there shall be a true East and West Line drawn, 'twixt Cape Hinlopenand the Chesopeak Bay: And that, from the middle of that Line, there shall be drawn a Right Line, Northwards, so as to become a Tangent Line, on the Western Side, to the above Circle, described at 12 Miles Distance from Newcastle. That, at the Distance of 15 English Miles from the most South- ern Part of Philadelphia, there shall be drawn Westwards a Parallel, or due East and West Line, whose Distance, Westwards, is to be determined afterwards. That, from the Point of Con- tact of the afore described Tangent Line with the Circle, there shall be drawn a Meridian, or due North and South Line, so far as till it touches the said Parallel. That those Lines, so drawn, shall be the Boundaries 'twixt Pensilvania and Mary- land. All to the Northward and Eastwards Pensilvania. All to the Southward and Westward Maryland. This Division of the Countries in dispute, betwixt the Lord .Baltimore, &c. as de- scribed in the Articles of Agreement, &c. Seems to be much BOUNDARY QUESTION. 449 more convenient and practicable, than any Division that can be made, by affixing the Longitude and Latitude of such Bounds — Because, the Longitudes and Latitudes of Places are with great Difficulty made sufficiently exact, to determine the true Place of such Boundaries, within less than a Mile or two Miles: Whereas, this Method is easily practicable, and deter- mines it to what Exactness is required. Moreover, in case any Dispute at any time arises, it may soon be adjusted, by any skilful Surveyor, to the Satisfaction of each Party. John Senex. This Exhibit is spoke to by Paris, and is proved to be Mr. Senex's Hand (who is dead) by Mary Senex his Widow, and by Thomas Hutchinson and Thomas Smith, who were his Servants. And is the Exhibit, Par. No. 5. This Man, of my Lord Baltimore's own chusing, read and explained the Draught of the Articles, that the Circle was tu be at 12 Miles Distance from Newcastle, and also shews that he understood Newcastle itself, as a Center. 1732, April. The Copy of Lord Baltimore's Map, as engraved by Mr. Senex (who he chose to do it) or his Servants. Printed Map proved by Hutchinson and Smith, being the Exhibit Sen. No. 1. May 10. Copy at full length of the Articles of Agreement executed between the Parties, viz. ARTICLES of Agreement indented, had, made, and con- cluded upon, this tenth Day of May, in the Fifth Year of the Reign of our Soverign Lord George the Second, by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith, &c. Annoque Domini 1782, between the Right Honourable Charles Lord-Baron of Baltimore in the Kingdom of Ireland, true and absolute Lord and Proprietary of the Pro- vinces of Maryland and Avalon, &c. of the one Part, and John Penn, Thomas Penn, and Richard Penn Esqrs. Sons and De- visees under the Will of William Penn Esq ; the Elder, their late Father, true and absolute Proprietaries of the Province of Pensilvania, &c. of the other Part, in Manner and Form fol- lowing; that is to say, Whereas, his late Majesty King Charles the First, by his Royal Charter or Letters Patent under the Great Seal of Eng- land, bearing Date at Westminster the twentieth Day of June, in the eighth Year of his Reign, did give, grant, and confirm unto Cecilius, then Baron of Baltimore, (the Great Grandfather of the said Charles Lord Baltimore) and to his Heirs and As- signs, all that Part of a Peninsula lying in the Parts of America, 29— Vol. XV 450 PENNSYLVANIA AND MARYLAND between the Ocean on the East, and the Bay of Chesopeake on the West, and divided from the other Part thereof by a Right Line from the Promontory or Cape of Land called Watkin's Point, (scituate in the aforesaid Bay near the River of 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 lieth under the fortieth Degree of Northerly Latitude from the Equinoctial, where New England ends ; And All that Tract of Land, between the Bounds aforesaid; that is to say, passing from the aforesaid Bay called Delaware Bay, in a Right Line, by the Degree aforesaid, unto the true Meridian of the first Fountain of the River Pattowmeck, and from thence trending toward the South unto the farther Bank of the afore- said River, and, following the West and South Side thereof, unto a certain Place called Cinquack, scituate near the Mouth of the said River, where it falls into the Bay of Chesopeake, and from thence, by a straight Line, unto the aforesaid Prom- ontory and Place called Watkin"s Point (except, as therein is excepted:) And bis said late Majesty did thereby also grant and confirm unto the said then Lord Baltimore, his Heirs and Assigns, all Islands and Islets within the Limits aforesaid, and all and singular the Islands and Islets, which were or should be in the Ocean, within ten Leagues from the Eastern Shore of the said Country towards the East, with all and singu- lar Ports, Harbours, Bays, Rivers and Inlets belonging unto the Country or Islands aforesaid : And all the Soil, Lands, Fields, Woods, Mountains, Fenns, Lakes, Rivers, Bays and Inlets scituate or being within the Bounds and Limits afore- said : And moreover, all Veins, Mines and Quarries, as well discovered as not discovered, of Gold, Silver, Genims and precious Stones, and all other Mines whatsoever of Stones, Metals, or of any other Thing or Matter whatsoever, found, or to be found, within the Country, Isles, and Limits aforesaid, reserving as therein is reserved ; together with divers ample Rights, Jurisdictions, Privileges, Prerogatives, Royalties, Lib- erties, Immunities, Royal Rights and Franchises, of what kind soever, more at large set forth in the said Letters Patent. And the said then Lord Baltimore, his Heirs and Assigns, his said late Majesty did thereby for himself, his Heirs and Successors, make, create, and constitute the true and absolute Lords and Proprietaries of the Country aforesaid, and of all other th3 Premisses (except as before excepted) to have, hold, possess and enjoy the said Country, Isles, Islets, and other the Premisses, unto the said then Lord Baltimore, his Heirs and Assigns, to the sole and proper Use and Behoof of him the said then Lord Baltimore, his Heirs and Assigns for ever : as by the said Char- BOUNDARY QUESTION. 451 ter, relation being thereunto had, may more fully and at large appear. And whereas his late Majesty King Charles the Second, by his Royal Charter or Letters Patent under the Great Seal of England, bearing Date at Westminster the fourth Day of March, in the thirty-third Year of his Reign, for the Considera- tion therein mentioned, did give and grant unto the said Wil- liam Penn the Elder, his Heirs and Assigns, ALL that Tract or Part of Land in America, with all the Islands therein contained, as the tame was bounded, on the East, by Delaware River, from twelve Miles distance Northwards of New-Castle Town, unto the fortv-third Degree of nothern Latitude, if the said River did extend so far Northward ; but, if the said River should not extend so far Northward, then, by the said River so far as it did extend; and, from the Head of the said River, the Eastern Bounds were to be determined by a Meridian Line, to be drawn from the Head of the said River unto the said forty-third Degree : The said Lands to extend Westward five Degrees in Longitude, to be computed from the said Eastern Bounds: And the said Land to be bounded, on the North, by the be- ginning of the forty-third Degree of northern Latitude, and, on the South, bv a Uircle drawn at twelve Miles distance from New-Castle, Northwards and Westwards, unto the beginning of the fortieth Degree of northern Latitude, and then, by a strait Line, Westward, to the Limit of Longitude above-mentioned. And his said late Majesty King Charles the Second did thereby also give and grant unto the said William Penn the Elder, his Heirs and Assigns, the free and undisturbed Use and Continu- ance in, and Passage into and out of all and singular Port-, Har- bours, Bays. Waters. Rivers, Isles, and Inlets, belonging unto or leading to or from the Country or Islands aforesaid ; and all the Soil, Lands, Fields, Woods. Underwoods. Mountains. Hills, Fenns, Isles. Lakes. Rivers, Waters. Rivulets, Bays and Inlets, scituate or being within, or belonging unto the Limits and Bounds aforesaid : and also all Veins, Mines, and Quarries, as well discovered as not discovered, of Gold, Silver. Gemms and precious Stones, and all other whatsoever, of Stones. Metals, or any other Thing or Matter whatsoever, found or t« be found within the Country, Isles, and Limits aforesaid ; and him the said William Penn the Elder, his Heirs and Assigns, his said late Majesty King Charles the Second did. by the said Royal Char ter, for himself, his Heirs and Successors, make, create, and constitute, the true and absolute Proprietaries of the Country aforesaid, and of all other the Premisses, TO HAVE, hold, possess, and enjoy the said Tract of Land, Country, Isles, In- lets, and other the Premisses, unto the said William Penn the 452 PENNSYLVANIA AND MARYLAND / Elder, his Heirs and Assigns, to the only proper Use and Be. hoof of the said William Penn the Elder, his Heirs and Assigns for ever ; as by the said last recited Charter or . Letters Patent (amongst divers other Matters and Things therein contained) relation being thereunto had, may more fully and at large ap- pear. And whereas by Indenture of Bargain and Sale enrolled, bearing Date on or about the four and twentieth Day of August, in the Year of our Lord One Thousand Six Hundred Eighty and Two, and made or mentioned to be made, between his Royal Highness James, then Duke of York, (afterwards James the Second, King of England) of the one Part, and the said William Penn the Elder of the other Part, his said Royal High- ness (for the Considerations in the said Indenture mentioned) did bargain, sell, enfeoff, and confirm unto the said William Penn the Elder, 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, scituate, 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 Southermost Part of the said Circle of twelve Miles about the said Town, together with all Rents, Services, Royalties, Fran- ehies, Duties, Jurisdictions, Liberties and Privileges thereunto belonging; and all the Estate, Right, Title, Interest, Powers, Property, Claim and Demand whatsoever, of his said Royal Highness, in or to the same, To hold to the said William Penn the Elder, his Heirs and Assigns, to the only Use of the said William Penn the Elder, his Heirs and Assigns for ever. And whereas by another Indenture of Bargain and Sale, or Feoffment, bearing Dateon or about the said four and twentieth Day of August in the said Year One Thousand Six Hundred Eighty and Two, and made, or mentioned to be made between his said Royal Highness of the one Part, and the said "William Penn the Elder of the other Part, his said Royal Highness for the Considerations in the said last Indenture mentioned, did bargain, sell, enfeoff, and confirm unto the said William Penn the Elder, his Heirs and Assigns, all that Tract of Land upon Delaware River and Bay, beginning twelve Miles South from the Town of New-Castle, otherwise called Delaware, and ex- tending South to the Whore Kilns, otherwise called Capin Lopen, (which said last mentioned Tract of Land hath been divided into two Counties, and called by the Names of Kent and Sussex ; and these two Tracts, together with the Town of New-Castle, are, and have been, commonly called by the Name of the three lower Counties of New-Castle, Kent and Sussex) BOUNDARY QUESTION. 453 together with the Soil, Fields, Woods, Underwoods, Mountains, Hills, Fenns, Isles, Lakes, Rivers, Rivulets, Bays and Inlets, scituate in or belonging unto the Limits and Bounds aforesaid ; together with all sorts of Minerals, and all the Estate, Interest, Royalties, Franchises, Powers, Privileges and Immunities whatsoever, of his said Royal Highness thereunto, To hold unto the said William Penn the Elder, his Heirs and Assigns, to the only Use and Behoof of the said William Penn, his Heirs and Assigns for ever; as by the said two several Indentures of Bargain and Sale or Feoffment, relation being unto them re- spectively had, may more tully appear. And whereas, soon after the granting the said Charter and Deeds of Bargain and Sale or Feoffment unto the said William Penn the Eldei", several Disputes and Differences arose between the then Lord Baltimore, (Grandfather of the said Charles Lord Baltimore) and the said William Penn the Elder, touching the respective Bounds and Limits of the said Provinces of Mary- land and Pensilvania, and between the said Province of Mary- land and the said three lower Counties of New-Castle, Kent andjSussex.in regard that the Observations made by Mathemati- cians and other skilful Persons from time to time, in order to the fixing the Place of the fortieth Degree of northerly Latitude (mentioned and referred to by both the said Charters of Mary- land and Pensilvania) greatly varied and differed from each other ; and also, in regard that the said Tracts of Land, since called the three lower Counties of New-Castle, Kent and Sussex, which were granted to the said William Penn the Elder, by the said Deeds of Bargain and Sale or Feoffment (or at least some Parts thereof) were comprized within the Bounds and Limits which had been mentioned in the said Charter of Maryland. And whereas, notwithstanding several Treaties and Endeavours for settling the said Disputes and Differences, divers Difficulties have arisen, and many Persons have seated themselves upon great Parcels of the Lands in dispute, without Authority from either of the Proprietors, and without paying the usual Fines or Quit-rents, or conforming themselves to the Government and Establishment settled in any of the said Provinces or Counties: But, for the putting a final and friendly End and Accommodation to the said Disputes and Differences, the Parties hereunto have come to the following Agreement touching the same. Now therefore these present Articles witness, That it is hereby mutually and reciprocally covenanted, promised, declared and agreed by each and every one of the said Parties to these Pre- sents, for himself, and his Heirs, Executors and Adminstrators, to and with all and every other of the same Parties to these 454 PENNSYLVANIA AND MARYLAND Presents, and their several and respective Heirs, executors and Administrators, in Manner and Form following; that is to say, I. That the Draught or Plan printed in the Margin upon this Skin of Parchment, which contains a Map of the Peninsula herein before mentioned, and also of the Tracts of Ground wherein the said Province of Maryland, (or Part thereof) the said Three Lower Counties, Part of the said Province of Pensil- vania, and Part of Virginia do lie, is a true Copy of those which had been sent over from America, to the present Parties hereto, by their respective Agents in those Parts, for the As- sistance and Guidance of the said Parties, in the settling the said Disputes, and by which this present Agreement is to be explained and understood. II. That there shall be the said Circle, mentioned in the said Charter for Pensilvania, and Deed of Bargain and Sale or Feoff- ment 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. III. That a due East and West Line shall be drawn across the said Peninsula, (or across so much of it as shall be requisite) such East and West Line to begin, on the East Part, at the Place in the said Draught or Map called Cape Hinlopen, which lies South of Cape Cornelius, upon the eastern Side of the said Peninsula, towards the main Ocean, and, at the Point of the said Cape; and to run toward the western Side of the said Peninsula, which lies upon the Chesopeake Bay ; but to stop, in the exact middle of that Part of the same Peninsula, when so running a due East and West' Course. IV. That, from the Western Point or End of the said East and West Line (which Western Point or End shall be just half way across the said Peninsula) a strait Line shall run, North ward, up the said Peninsula (and above the said Peninsula if it require it) till it shall so touch the Western Part of the Peri- phery of the said Circle, as to make a Tangent thereto : The said strait Line, as at present apprehended will run pretty near South and North, but (however it may bear on the Compass) such strait Line shall be run Northward up the said Peninsula (and above the said Peninsula if it require it) and shall begin at and from the Western Point or End of the aforesaid East and West Line, and shall run until it touches, and makes a Tangent to, the Western Part of the said Periphery of the said Circle, and, there, the said strait Line shall end. V. That, at the Northern Point or End of the said strait Line, a Line shall begin, and shall, from thence, run due North above the said Peninsula, but so far only until it comes into BOUNDARY QUESTION. 455 the same Latitude, as fifteen English Statute Miles due South of the most southern Part of the City of Philadelphia. VI. That a due East and West Line shall be run in manner following; it shall begin at the northern Point or End of the said due South and North Line, and shall, from thence, run due West cross Sasquehannah River, to the utmost Western Extent of the said Province of Pensilvania, or so far in Part thereof as shall be at present requisite, in regard that, as the same is to be a due East and West Line, the beginning Part thereof may be sufficient to continue the same by, when further Occasion shall require, and when the Lands Westward in the said Provinces of Maryland and Pensilvania shall be better settled, and that it would .occasion a very great Expence, and likewise be at present needless, to run the same to the utmost Extent Westward of the said Province of Pensilvania; however, the same shall (at present) be run cross Sasquehannah River, and about five and twenty English Statute Miles further on the Western Side of the said River. VII. That the Part of a Circle, at present drawn with Red Ink upon the said Draught or Plan, and the red Lines also drawn thereupon, are now drawn to serve as an Explanation to this present Agreement, but not with exact Certainty, in regard the said Draughts or Plans, so sent over to the Parties aforesaid, have neither Scale or Compass to them. VIII. That the first above-mentioned due East and West Line to run from Cape Kinlopen to the Middle of the Penin- sula, and the said strait Line to run from the Westward Point thereof Northwards up the said Peninsula (and above the said Peninsula, if it require it) till it touches or makes a Tangent to the Western Part of the Periphery of the said twelve Miles Circle; and the said due South and North Line to run from such Tangent till it meet with the Upper or more Northern East and West Line : And the said upper East and West Line to begin from the Northern Point or End of the said South and North Line, and to run due Westward at present cross Sas- quehannah River, and Five and Twenty English Statute Miles at least on the Western Side of the said River, and to be fifteen English Statute Miles South of the Latitude of the most South- ern Part of the said City of Philadelphia, are and shall be, and shall at all Times for ever hereafter be allowed and esteemed to be, the true and exact Limits and Bounds between the said Province of Maryland, and the said Three Lower Counties of New-Castle, Kent, and Sussex, and between the said Provinces, of Maryland and Pensilvania; excepting only, that in case the said North Line from the Tangent of the Circle uf New- Castle shall break in upon the said Circle, in such Case, so 456 PENNSYLVANIA AND MARYLAND much of the said Circle as shall be cut off by the said Line, shall belong to and be Part of the County of New-Castle. Provided always, and it is hereby mutually covenanted, con- cluded, and agreed, by and between the Parties to these Presents, that in case it should happen in the Running or Setting out the Lines or Boundaries hereby agreed upon, that the Head or Heads of any River or Rivers leading either into the Bay of Chesopeake,or into the Bay of Delaw8i - e, or unto the Sea, shall remain on one Side the Lines and Boundaries hereby agreed to be run or set out, and that the lower Part of such River or Rivers shall remain within or run thro' the other Province or Counties, and on the other Side of such Lines and Boundaries; then, and in such Case, this present Agreement, or any Mat- ter or Thing herein contained, is not intended, and shall not in any Wise be construed or extended to give or yield to the People or Inhabitants of the Province or Counties within whose Limits the Heads of any such River or Rivers shall ac- cording to this present Agreement fall or remain, any Sort of Right or Title to carry on any Commerce into the said Bays of Delaware or Chesopeake, or either of them, or into the Sea thro' the lower Parts of such River or Rivers, which may run thro' the Territory or Limits of any other Province or Counties, without the Leave or Licence of the respective Proprietor or Proprietors of the Province or Counties thro' whose Territories such lower Parts of the said River or Rivers shall run, first duly had and obtained ; this Agreement, or any thing herein contained, to the contrary thereof in any wise notwithstanding. This Clause is translated verbatim into the very Commissions, nevertheless, the first Objection made by the Maryland Com- missioners was, for that some other different Persons had not also joined in granting our Commission. \ IX. That the said Charles Lord Baltimore, and his Heirs and Assigns on his part, and the said John Penn, Thomas Penn, and Richard Penn, and their several and respective Heirs and As- signs on their parts, shall and will, by fit and proper Powers and Instruments, within two Calendar Months from the Day of the Date of these Presents, authorize and appoint a sufficient Number of discreet and proper Persons, not more than seven on each side, to be their respective 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 before-mentioned Lines : which said Com- missioners shall give due and proper Notice to each other, and shall fix and agree upon a Time or Times to begin and proceed in the running, marking, and laying out the same; and the same BOUNDARY QUESTION. 457 shall be begun, at the farthest, some time in the Month of Octo- ber next, and shall be proceeded in with all Fairness, Candour, and Dispatch that may reasonably be. And the said Lines shall be marked out by visible Stones, Posts, Trees, Pillars, Buildings, Land-marks, or other certain Boundaries which may remain and continue; such Boundaries to be marked, on one side, with the Arms of the said Charles Lord Baltimore, and, on the other side, with the Arms of the Proprietors of Pensil- vania. And such Lines shall be compleatly so run,mark'd, and laid out, (as far as by this Agreement is intended; on or before the twenty-fifth Day of December, One thousand seven hundred and thirty-three: and, when so done, a true and exact Plan and Survey thereof, with the best and most exact and certain Descriptions that can possibly be given of the same, shall be made up, and sign'd, and seal'd, by the said Commissioners on both sides, and by their Principals, and shall be entred in all the publick Offices, in the said several Provinces and Counties : And moreover it shall be recommended by the respective Pro- prietors to the Assemblies of the said several Provinces and Counties, forthwith to pass Acts of Legislature for the Visita- tion upon certain fix'd Days, to be agreed on on both sides (at least once in every three Years) and for the continual Repara- tion of the said Boundaries and Bound-marks, that no Disputes may arise hereafter concerning the same. Provided always, and it is hereby agreed, that in Case a sufficient Quorum of the Commissioners to be named on either side, shall not, from time to time, according to the Appoint- ments and Adjournments to be made for that purpose, attend to proceed in the marking and running out the Lines and Bounds aforesaid, for want whereof the same cannot be done within the Time before limited, then, this present Agreement, and every Article and Thing herein contained, shall cease, de- termine, and be void; and, then, and in such Case, the Party or Parties, whose Commissioners shall make such Default, his or their Heirs, Executors, or Administrators, shall and will forfeit and pay, to the other Party or Parties, whose Commis- sioners shall attend, his or their Heirs, Executors or Adminis- trators, upon Demand, the Sum of Five Thousand Pounds of lawful Money of Great-Britain. X. That the said Charles Lord Baltimore, for himself and his Heirs, doth by these Presents for ever renounce, release, ind qui^ claim unto the said John Penn, Thomas Penn, and Richard Penn, and their Heirs, all Rights, Titles, Interest, Powers, Prerogatives, Claims, Demands, and Pretentions, to the said Province of Pensilvania, and to the said Three lower Counties pf Newcastle, Kent, and Sussex, to be so bounded as aforesaid, 458 PENNSYLVANIA AND MARYLAND (Part at least of the same Three lower Counties being now known to be comprized within the Bounds mentioned in the said Charter of Maryland) and shall also, at the Request and Cost in the Law of the said John Penn, Thomas Penn, and Richard Penn, and their Heirs, grant, convey, and assure, in the most effectual Manner, the said Province of Pensilvania, and the said Three Lower Counties to be bounded as aforesaid, and all his and their Right, Title, Interest, Powers, Claims, and De- mands, in and to the said Province of Pensilvania, and the said Three Lower Counties to be so bounded as aforesaid, and every Part of the same, free of all Incumbrances by the said Cecilius Baron of Baltimore, Great Grandfather of the said Charles Lord Baltimore, Charles Grandfather of the said Charles Lord Baltimore, Benedict Father of the said Charles Lord Bal- timore, or by him the said Charles Lord Baltimore Party hereto, his Heirs or Assigns, excepting such Grants and Agreements to Planters as herein after mentioned, unto the said John Penn, Thomas Penn, and Richard Penn, and their Heirs; TO HAVE AND TO HOLD unto the said John Penn, Thomas Perm, and Richard Penn, and their Heirs, to the only Use and Behoof of them and their Heirs for ever, in such/ Manner as by them the said John Penn, Thomas Penn, and Richard Penn, or their Heirs, or their Council learned in the Law, shall be reasonably devised, advised, and required. AND on the other Hand, the said John Penn, Thomas Penn, and Richard Penn, for them- selves and their Heirs, do by these Presents for ever renounce and quit claim unto the said Charles Lord Baltimore and his Heirs, all Rights, Titles, Interest, Powers, Prerogatives, Claims, Demands, and Pretensions to the said Province of Maryland, to be so bounded as aforesaid, (Part whereof when so bounded being apprehended to be comprized within the Bounds men- tioned in the said Charter for Pensilvania;) and shall also at the Request and Cost in the Law of the said Charles Lord Bal- timore and his Heirs, grant, convey, and assure, in the most effectual Manner the said Province of Maryland, to be so bounded as aforesaid, and all their and every of their Right, Title, In- terest, Powers, Claims, and Demands, in and to the said Province of Maryland, to be so bounded as aforesaid, and every Part of the same, (free of all Incumbrances by the said William Penn the Grandfather, William Penn the Father, Springett Penn Esq; deceased, William Penn the Son, John Penn, Thomas Penn, and Richard Penn, their Heirs or Assigns) excepting such Grants or Agreements to Planters as herein after men- tioned, unto the said Charles Lord Baltimore and his Heirs, to have and to hold unto the said Charles Lord Baltimore and his Heirs, to the only Use and Behoof of him and his Heirs BOUNDARY QUESTION. 459 for ever, in such Manner as by him or them, or his or their Council learned in the Law, shall be reasonably devised, ad- vised, and required. XI. And whereas during the Disputes which have hitherto subsisted, and now are accommodated between the Parties to these Presents, divers Persons under Grants, Patents, Leases, Warrants, Licences and Agreements, made and granted from and agreed with the said Charles Lord Baltimore and his An- cestors, before the fifteenth Day of May, One thousand seven hundred twenty and four, may have cleared, oceupied and pos- sessed, several Parcels of Lands within the Limits and Bounds hereby yielded and agreed upon for the said Province of Pen- silvania, and for the said Three Lower Counties: And in like manner other Persons under Grants, Patents, Leases, Warrants, Licences and Agreements made and granted from, and agreed with the said John Penn, Thomas Penn, and Richard Penn, or their Ancestors, before the said fifteenth Day of May, One thousand seven hundred twenty and four, may have cleared, occupied and possessed several Parcels of Lands within the Limits and Bounds hereby yielded and agreed upon for the said Province of Maryland, and it may be proper to quiet such Occupiers and Possessors in their respective Possessions (which might otherwise be disturbed by this present Agreement of the Proprietors, under some Restrictions;) It is therefore mutually agreed, that in order to the Information of the Parties to these Presents, touching the Premisses, each of the said Proprietors shall have full and free Liberty to take Copies at their respect- ive Costs and Charges, of all Grants, Patents, Leases, Warrants, Licences and Agreements, which at any time before the said fifteenth Day of May, One thousand seven hundred twenty and four, have been made or granted by the respective Proprietors or their Ancestors, and under which any of the said Occupiers do hold or claim any such Parcels of Land : And in order to quiet and settle such Occupiers, every of them shall and may, upon Request and Payment of the accustomed Fees, in such Cases only, have new Grants or Patents from the respective Proprietors within whose Territory or Limits their Lands, bs r virtue of, or according to this present Agreement, shall lie, for the like Estate, Term, and Interest, as mentioned in their ori- ginal Grants, Warrants, Leases, Licences or Agreements, upon condition that the said Occupiers respectively do first attorn, and become Tenants to their respective Proprietors within whose Territory or Limits their Lands now lie, by virtue of, or according to this present Agreement, and do submit them- selves in all Things to the Government thereof, and do pay to their new Proprietor or Proprietors (unless it shall be dispensed 460 PENNSYLVANIA AND MARYLAND with by him or them) all such Fines, Rents and Arrearages Of Rents and Duties, as by their original Grants, Licences or Agree, merits, were to have been payed to thsir former Grantor or Pro- prietor, and which have not been really and bona fide payed to or to the Use of such their former Proprietor; and for the time to come, such Occupiers shall be put upon the like Foot and Condition with the rest of the Occupiers and Tenants who hold Lands in such Parts of the said respective Provinces and Counties as have never been in Contest; and such Occupiers and Tenants claiming originally under another Proprietor, as aforesaid, shall hold their Lands and have Patents thereof granted them by their new Proprietor, subject to the like Fines, Rents, Quit-Rents, Duties, Services and Reservations, as the other Landholders are, and have been generally subject to in the respective Provinces and Counties to which they shall belong. Provided always, that in Cases where any Persons dur- ing the Disputes which have subsisted between the said Pro- prietors have taken double Title; that is to say, from both the said Proprietors or their Commissioners or Officers, under which they have sheltered themselves by turns against each of the said Proprietors, and also in Cases where any Persons dur- ing the said disputes, have of their own authority seated them- selves down upon any Parcels of Lands, without Licence or Authority in Writing from either of the said Proprietors, such Persons in respect of such Lands, are by no means to be in- cluded in this present Article, but are (however) to be treated with Moderation, and with some Regard ; and the more so, in case they have heretofore actually paid the usual Quit-Rents and Services to either of the said Proprietors, and provided they bring in, surrender or yield up their former Grant, Li. cence, Warrant, Lease or Agreement, and submit to hold only under the proper Lord or Proprietor as the Case may be. XII. That in case the Parties hereto can conclude upon any further Clauses in favour of the Occupiers of any Lands within the Bounds heretofore disputed, but by these Presents fixed and determined; the same shall be contained in a subsequent Agreement between them. Lastly, That all the Parties hereto, and their Representatives, shall at all times hereafter use all friendly Means and Offices to the utmost of their power, to assist and support this present Agreement, and the several and respective Rights, Interests and Pretensions of the Parties, by virtue hereof. In Witness, &c. The foregoing Articles are proved to be executed by all Parties, by Mr. Taylor and by Paris. And are Exhibits Art. And Par. No. 7. BOUNDARY QUESTION. 461 Note — Upon some of the six several parts of those Articles there was an Endorsement executed (of the same Date with the Articles) by William Penn, Letitia Aubrey and Charles Fell and Gulielma Maria his Wife; whereby all those Persons as- sented to those Articles, and promised not to hinder or obstruct the said Agreement, or the due Execution thereof, in any man- ner or wise. Endorsement on the said Articles, Par. No. 7. and proved by Paris. 1732, May 12. The Draught of the Commission prepared for the Plaintiffs to authorise their Commissioners to carry the Articles into Exe- cution, which the Defendant and his Sollicitor approved ; with Mr. Sharpe's Endorsement thereon of the Names which he would have inserted for the Defendant's Commissioners. This is proved by Paris, and is Exhibit Par. No. 8. Same Day. The Original Commission executed by the Plaintiffs, author- ising their Commissioners to carry the Agreement into Ex- ecution, which recites the Agreement most minutely. The Execution of this Commission by the Plaintiffs is proved by Mr. Taylor, and this Exhibit is in Parchment markt Com. And thus the written Articles of Agreement were executed. Chap. XIV. From the Time of sealing the Articles here in Lon- don in May 1732, down to the End of the Year 1733. Aug. 26. An Order of Council, which does not directly make any Proof in the Matter in question, otherwise than as a very strong Precedent, (founded upon the present Lord Chancellor's Opinion) that the Crown will not disturb ancient Possessions, or take Advantage of defective Titles in America. The Order altogether is long, but the Case was, the Crown had ordered Mr. Dunbar, the Surveyor General, to endeavour to form a Colony or Settlement in a Part of New England, which seemed to be unimproved, adjacent to Nova Scotia. Hereupon, Samuel Waldo, Elisha Cook and Sir Biby Lake, and others, petitioned the King, and set up a Title thereto, and some Endeavour that had been used to settle the same, and some Expences layd out therein, but that frequent Indian Wars had disturbed them, and it came out, that the French had conquered that Territory in 1696, and that in the Year 1710, it was reconquered under General Nicholson; and was afterwards ceded by France, to Great Britain, by the Treaty of Utrecht : and the Matter being referred to the then Attorney and Sollicitor General (Yorke 462 PENNSYLVANIA AND MARYLAND and Talbot), They reported, that some of the Petitioners had Titles under the Council of Plymouth, and others from Indians, pretending to be Owners of the Land, under which large Sums had been laid out, in endeavouring to settle and improve, and tho' interrupted and defeated by frequent Wars and Incursions of the Indians, yet, some of their Tenants appeared to be still in Possession of some Parts of the said Land. The Attorney and Sollicitor also reported, "That some Objections were made, '• before them, to the Nature of the Grants andConveyances under '• which the Petitioners claimed, and to the Manner of deducing "down their Titles, but they conceive that, in Questions of "this kind, concerning Rights to Lands in the West Indies, "and upon Enquiries of this Nature, the same Regularity and " Exactness is not be expected, as in private Suits, concerning "Titles to Lands in England; but that, in these Cases, the " principal Regard ought to be had to the Possession, and the " Expences the Parties have been at in endeavouring to settle and " cultivate such Lands ; Therefore, upon the whole Matter, they "are of Opinion that the Petitioners, their Tenants or Agents, "ought not to be disturbed in their Possession, or interrupted •in carrying on their Settlements, in the Lands granted to "them, within the District in question. " Thereupon the Lords ••of the Committee of Council also reported, "That they agreed •• in Opinion with his Majesty's Attorney and Sollicitor General " (Inter alia) That the Petitioners, their Tenants or Agents, "ought not to be disturbed in their Possession, or interrupted •• in carrying on their Settlements, in the Lands granted to them "within the District in question." And therefore advised the King to revoke, and he accordingly, by his Order in Council of this Date, did revoke, the Instructions which he had before given on 27 April 1730, to the Governor of Nova Scotia, and the Surveyor General, relating to the settling the said Lands, and ordered the Surveyor General to quit the Possssion of all the said Lands. Original Order of Council under Privy Council Seal, Co. Off. No. 26. 1732. Oct. 7. Bargain and Sale enrolled, whereby William Penn the Grand- son, conveyed his 5000Z. Mortgage upon Pensilvania, unto Alex- ander Forbes, for securing a Sum of 2500Z. which he borrowed of him. The Deed proved by Paris. Oct. 6, 7. The Minutes of this Day's First Meeting of the Commission- ers on both Sides at New-Town in Maryland, (as they were taken and kept by the Pensilvania, Commissioners.) In which, after naming the Commissioners who were present, on both Sides, BOUNDARY QUESTION. 463 they go on in the like Words as that Minute set forth by the Defendant in Fol. 456. in the Schedule to his Answer; which is contained in Fol. 25 and 26. of this Brief. This Minute is additionally proved by Samuel Preston and James Steel, two of our Commissioners. And is in the Pensilvania Exhibits, No. A. 1. Oct. 30. 81. Nov. 1. 2. The Defendant in the Schedule to his Answer, at Pol. 460. has given us a very short imperfect Minute, return'd to him by his Commissioners, and as if it had passed upon the 30th of October only. Whereas we have the following full Minutes of all those four Days, kept by our Commissioners, and proved by them, viz. Oct. 30. Five of the Commissioners appointed by Lord Baltimore, and all the 7 Commissioners appointed by the Plaintiffs being met, on the 30th of October, at Newcastle, in order to proceed to mark out the Circle mentioned in the Agreement between the said Proprietors. The Lieutenant-Governor of Maryland, opening the Confei*ence, declared, They were now met to pro- ceed to run the Circle about Newcastle, mentioned in the 2d Article of the Agreement, which he read ; and as, in that Article, the Circle is said to be the Circle mentioned in the Charter for Pensilvania, and the Deed of Feoffment from the Duke of York. 'twas necessary they should see that Charter and the Deed of Feoffment. The Commissioners of Pensilvania answered that the Agreement fully recited the necessary Parts of the said Charter and Deed, That the respective Commissions from the Propi-ietors enjoyn'd the Commissioners to execute the several Articles agreed on, and that, as the Proprietors were mutually satisfyed with the Recitals made in the Agreement, the Com- missioners could want no further Satisfaction than was con- tained in those Recitals. But the Commissioners of Maryland insisting upon their Demand, those of Pensilvania condescended to send to Philadelphia for the Charter of Pensilvania, and for an Exemplificaton of the Deed of Feoffment from the Records of New York, where it was first entered, the Original being in England. Oct. 81. Present the same Commissioners. The Charter of Pensilvania under the Great Seal, with the Exemplification of the Duke of York's Deed of Feoffment to Mr. Penn for the Circle about Newcastle being brought from Philadelphia, th3 Commission- ers of Maryland desired Copies of the descriptive Parts of the said Charter and Deed, wherein the said Circle was mentioned. 464 PENNSYLVANIA AND MARYLAND It was answered by those of Pensilvania, That the said Charter and Deed, with the Agreement between the Proprietors, being All on the Board, the Recitals, in the Agreement, might be now compared with the others, by the Commissioners present, and, if found to agree, they could not want any other Satisfac- tion; and, being compared, they were found exactly to agree verbatim, allowing for the Change of Words necessary in mak- ing Recitals. The Commissioners of Maryland continued to insist on Copies of the descriptive Parts, which, tho' repre- sented to be altogether unnecessary after the Satisfaction already given them, were, notwithstanding, drawn out and delivered to them, certifyed to be true copies of the said de- scriptive parts under the hands of two of the Pensilvania Com- missioners. It was then proposed that we should agree on a Place of beginning for running the 12 Miles distance ; upon Avhich much was sayd. And the Commissioners of Maryland alledging They must further consider it, the Business was ad- journed till 3 in the Afternoon. The same Commissioners meeting in the Afternoon. Those of Maryland questioned whether, by their Commission from their Proprietor They had full Power to run the described Circle? For, as there could be no Circle without a Center, that Center must be first had; but, it was no where directed by the Articles or Commission ; and they conceived they had no Power to make one. It was answer'd, that the Commis- sioners, being impower'd and required to execute the Agree- ment in that Part, they were impowered to do all Things neces- sary to the Performance of it: For that it is a known Maxim in Law that where a Thing is prescribed to be done, the Means are, at the same time, prescribed. That, from Newtown, the Commissioners had adjourned to meet at Newcastle the 30th of October in order to proceed to mark out the Circle; That the Articles enjoyn'd the Business to be begun in the Month of October, at furthest ; That this was the Afternoon of the last Day of October, and yet, nothing was done to any Effect. Those of Maryland answer'd, that every body must allow they had en- ter'd on the Business : They were now upon it, and they should all acknowledge, before any number of Witnesses, that they had begun the Business ; But, how to proceed is the Difficulty, which appears such to them, as that they must further advise on it. The Commissioners of Pensilvania declared themselves fully impower'd, as they conceived, to do every thing necessary to the full Execution of their Commission ; and, to save time, the Surveyors might be sent to measure the Town. The Com- missioners of Maryland then proposed that the Company should walk about the Town and view it; and accordingly the Com- BOUNDARY QUESTION. 465 inissioners, of both Parts, adjurning till Morning, walkt out to view the Town. JSov. 1. The Commissioners being met, The Governor of Maryland, in Behalf of the Gentlemen of that Province, declared that, having advised Doth with Lawyers and Mathematicians, on the Subject of finding a Center, they were fully satisfied that, as the Center for the Circle is not directed by the Articles, or their Commission, They have no Power to make one; but that, as his Lordship's Arrival in Maryland is every Day expected, they thought it proper for them to apply to his Lordship at his coming: and if he would direct them to find a Center, they would readily obey; To which it was answered that the Pro- prietors, on both Parts, had absolutely concluded an Agreement, in full and clear Terms; That they had given full Powers to their Commissioners on both Sides, to execute that Agreement; And, the better to enable them, a printed Draft of the Work was annexed in the Margin, both of the Articles and Commis- sions, which was to be explanative and directive in case of any Difficulty ; That the Town of Newcastle was fairly marked out, in that Draft, with a Central point in the Middle of it, on which the Circle in the Draft was drawn ; That it was easy to find this Center, as it is there pointed out; Another Objection also that had been made, from the Suggestion of some Mathe- matician, that it is impracticable to draw any true Circle of such an Extent, in the Woods or Fields, being' largely spoke to, the Governor of Maryland continued to insist on it, that they had no Power to find any Center, for that, if they fix on any, it may, as probably, be wrong as right, and, if wrong, it may injure Men in their Property, which they would avoid; Therefore, they must first take the further Directions of their Lord Proprietor, and, for that End. desire we may adjourn for same time, that they may have the Opportunity. The Com- missioners, of Maryland appearing fixed in this, the Consider- ation of it was referred to the Afternoon. The Commissioners meeting in the Aftenoon, those of Pensil- vania said, that as they met here, fully prepared and resolved, to proceed to Business, the Proposal of an Adjournment was un- expected; and first they desired to know, to what Time those of Maryland desired the Adjournment should be made? Which, when considered, might the better enable them to judge whether they could agree to it; the Gentlemen, of Maryland said, that, unless it were first agreed to adjourn, it would be to no Purpose to propose a Time ; and insisted, that those of Pensilvania should 30— Vol. XV. 466 PENNSYLVANIA AND MARYLAND first agree to an Ajournnient ; which they declining, and much being spoken to it, It was insisted, on the Part of Pensilvania, that Minutes should be taken of what has past ; which being also largely spoke to, and those of Maryland persisting in it, that all Minutes are unnecessary, further than to enter the Meetings and Adjournment; that each Side might keep what Minutes they pleased : The Commissioners of Pensilvania in- sisted, that it was absolutely necessary, in the Execution of all Commissions, to keep some Minutes, as a Register of the Commissioners Proceedings, otherwise, how shall it appear, what has been done in them? That they take this to be abso- lutely necessary in the present Case, and must appear so, in the Eyes of all Men of Understanding, acquainted with such Affairs ; but those of Maryland declined to join in such Minutes, and then, tbey proposed the first of February, for the Day of Adjournment to meet at Newcastle. The Commissioners of Pensilvania took till Morning to give their Answer, which is in these Words; Gentlemen, You cannot but be sensible, that after the Preparations made to proceed on the execution of our Commissions, it cannot but be a Disappointment to us, to have an Adjournment proposed to us; for, as the whole Articles, clearly shewed the Proprietors on both Sides were fully re~ solved, in the most amicable manner, to have their mutual Boundaries fixed, for which End, they had appointed us their Commissioners to run the Lines they had agreed on, and it is evident to us, and we are fully satisfied, that we have full Power to execute them, which it is required should be done with all the Fairness, Candour and Dispatch, that may be reasonable ; but as the Reason assigned for the Adjournment is, the general Expectation of th3 Arrival of the Lord Balti- more in some short Time in Maryland, whom you are desirous further to consult, we have so very great Regard for that worthy Nobleman, and so great an esteem of his Honour, that, on that Consideration, alone, we agree to the Adjournment proposed; viz. the first Day of February ensuing, then to meet at the Town of Newcastle. Nov. 2. The Commissioners being met, those of Pensilvania said, that, having considered the Adjournment proposed by the Gen- tlemen of Maryland, they had come to a Conclusion thereupon ; but as, at a former Meeting, they had strenuously insisted, that Minutes of what had now past should be kept, they thought it incumbent on them, to read at the Board the Minutes they had taken, at the Close of which their Answer to the Adjournment would appear; the Gentlemen of Maryland answering, that BOUNDARY QUESTION. 467 those of Pensilvania, undoubtedly had the Liberty to read what Paper they pleased ; the foregoing Minutes were read : The Adjournment being thus agreed to, the Gentlemen of Maryland were asked, whether they could object to the Truth of these Minutes? Their Governor answered, he had nothing to say to any Minutes we should take; but the same Question being re- peated, and an Answer pressed for, he said, the Arguments used on their Part were not, in these Minutes, set in so strong a Light, as he believed he could place them in, if he were to draw the Minutes, and particularly observed that the Reasons he had given, for insisting on a Sight of the Charter for Pensil- vania, and Deed of Feoffment for Newcastle, were not taken notice of; To which it was answered, that all Arguments were designedly omitted : He then desired one of the Commissioners, on the Part of Maryland, to read a Minute they had prepared, which mentioning only that, in pursuance of their former Ad- journment, the Commissioners had met at Newcastle, to run the Circle, specified in the Agreement, and that, Difficultes having arisen touching the same, they had adjourned to the first Day of February, was objected to by the Commissioners on the Part of Pensilvania, as imperfect and unsatisfactory. The Governor of Maryland then producing a Paper, of some Notes he had taken, asked what the Gentlemen of Pensilvania could say to that? Which being read by him, was to this Effect, that five of the Commissioners for Maryland, and all those for Pensil- vania, being met. in pursuance of their Adjournment at New- town, He, upon reading the second Article of Agreement, de- sired a Sight of the Charter tor Pensilvania, and Deed of Feoff- ment for Newcastle; that it had been argued by the Commis- sioners on the Part of Pensilvania, that the Charter and Deed, being recited in the Agreement, the Proprietors on both Parts were bound by the said Recitals, whether true or false. This being read, the Commissioners for Pensilvania immediately objected thereto, and insisted that no such Words had ever been used, by any of them, for it could not be supposed that the Recitals drawn by Council, and mutually signed by the Proprietors, could be false; the Governor of Maryland said, that, tho' these Words might not have been used, yet they were consequential to what was said ; and then, putting up the Paper, without offering any other Minute, or an Amendment to that, on the Objection made, and observing that, an Adjourn- ment being agreed to, there was no occasion for further Disputes, at this time ; the Commissioners taking leave of each other, parted. The foregoing four Days Minutes are all upon one Paper, and are proved by Messieurs Preston and Logan, and are the Pen< silvania Exhibit marked Letter C. 468 PENNSYLVANIA AND MARYLAND Jan. 26. A Commission from John, Thomas and Richard Perm, of this Date, appointing (in their own Names) Major Gordon the former Governor, to be Governor of the said Province of Pen- silvania and Lower Counties. Newcastle Records, No. 11, Fol. 100. Note, They had before pxirchased a Release from their Father's Heir at Law. Feb. 1, 2, 3. Lord Baltimore in the Schedule to his Answer at Fol. 463. and the following Sheets (which are in Fol. 26. and 27. of this Brief) has given the Account of these Days Proceedings of the Commissioners, in such manner as he says his Commissioners returned the same to him ; But as they are very short and de- fective, especially of all that past on the 3d of February (after the pretended Disappointment for about an Hour on our Parts) so we have Proof that one John Georges is dead, and we have Proof that he swore to an Affidavit (made upon the 26th Day of the same February) of what past on those Days; and our pi-esent Witness also says, he believes that that Affidavit was writ by the said John Georges; On which account, as a Paper writ by a man since dead (though not as an affidavit) we hope we may read it ; And we have, the Copies of the Notices, duly proved, which were served upon the Maryland Commissioners upon the said 3d of February ; which written Paper, and which Notices, are as follows, viz : John Georges of Philadelphia in the Province of Pensilvania Gent, being solemnly sworn on the Holy Evangelists maketh Oath, That he was at Newcastle on Delaware the first Day of Feb- ruary Instant, where he saw Samuel Ogle, Charles Calvert, Mat- thew Tilghman Ward, Michael Howard, Benjamin Tasker and Edmund Jennings of Maryland Esquires, and likewise Isaac Norris, Samuel Preston, Andrew Hamilton, James Steel, and Robert Charles of the Province of Pensilvania; That he un- derstood these Gentlemen to be Commissioners appointed for the Execution of certain Articles agreed upon by the Propretaries of Pensilvania and Maryland, and had met together in the After- noon of that Day, and likewise in the Forenoon and Afternoon of the Day ' following, which was the 2d Current ; That this Deponent, in the Evening of that Day, being in Company with the above named Gentlemen of Pensilvania, heard them make great Complaints, of the Usage they received at the Hands of the Commissioners of Maryland, in giving needless Delays, and raising unaccountable Objecti rms to the Work then before BOUNDARY QUESTION. 469 them ; That they particularly complained that, notwithstand- ing they had repeatedly pressed the Commissioners of Maryland to suffer a Clerk or Clerks to be present at their Meetings, and take Minutes of what should pass between them, and had sup- ported the Proposal by the very best and most solid Arguments in their Power, yet those of Maryland persisted in aflat Denial, would allow no other Persons but the Commissioners to be present at the Meetings, nor would consent that the Proceedings should be carried on in Writing; That the Commissioners of Maryland amused them, the Commissioners of Pensilvania, all Day long, with a very strange Interpretation of the Circle to be described round Newcastle, as if the same was to contain only twelve Miles in Circumference, instead of being described with a Radius of twelve Miles; That it had been proposed, on this Point, to consult the Mathematicians and Artists attend- ing on both sides; and that a Question, stated by the Commis- sioners of Maryland, though unfairly as was apprehended by those of Pensilvania, had been offered ; That besides, as no Center was directed by the Agreement, they questioned whether they had any power to fix one And this Deponent saith, that next day, being the 3d of this Instant February, he went, in the Morn- ing, to the Lodgings of some of the Pensilvania Commissioners, when he found they were all met together with their Artists, and were reducing into Writing their Thoughts on the Dispute then in Agitation touching the Circle, which they told this Deponent they intended to deliver to the Commissioners of Maryland, at their Meeting in the Forenoon ; That this De- ponent observed the Commissioners of Pensilvania to be in a great hurry for finishing the same; That three of the said Commissioners, viz. Messieurs Norris, Preston and Steel, went to the Court House of Newcastle, to meet the Commissioners of Maryland, leaving Messieurs Hamilton and Charles with the Artists; That this Deponent was sent to Mr. Steel, for a Paper in his Custody ; That no sooner was the Paper, intended for the Commissioners of Maryland, drawn up, and the same, with a Copy thereof, duly compared by this Deponent, and the said Commissioners setting out for the Court-House, but Mr. Norris, returning, said, that Governor Ogle had taken it ill to have waited so long, and had broke up the Meeting ; Whereupon Mi-. Charles, with this Deponent in Company, went to Governor Ogle's Lodgings, and there this Deponent heard Mr. Charles tell the said Governor that it could not but surprize the Commis- sioners of Pensilvania to find that they were gone from the Court House ; That probably it might, noAv, be an Hour, or an hour and half after the precise Time to Avhich they stood adjourned; but could not believe that so small a Delav could be interareted 470 PENNSYLVANIA AND MARYLAND a Failure in Meeting; since that, Yesterday, the Commissioners of Pensilvaniahad waited a full Hour after the adjourned Time for those of Maryland; and that they were now ready to wait of them, and a good deal of Business might be transacted before Dinner; To which Governor Ogle replied, that he could not think of meeting the Commissioners of Pensilvania, till he had consulted the Matter ; for that, if any Advantage had arisen to Lord Baltimore his Constituent by the said Failure, he the said Mr. Ogle should think it imprudent to give it up ; upon which, Mr. Charles again pressed the Meeting, but the other refused. This passed some time after 12 o' Clock at Noon, and, about an Hour thereafter, several of the Commissioners of Pen- silvania, with this Deponent, went to the Lodgings of Gov- ernor Ogle, to wait upon him and the rest of the Commissioners for Maryland to Dinner, according to an Invitation given by the Gentlemen of Pensilvania the Day before ; That the Com- missioners on both sides, and this Deponent, dined together, at one Henry Newton's in the said Town of Newcastle; That, about an Hour after Dinner, Mr. Ogle, with the rest of Lord Baltimore's Commissioners, departed; That soon after, the Commissioners on the side of Pensilvania, with this Deponent, waited upon Mr. Ogle at his Lodgings, where were present two others of the Maryland Commissioners, viz. the Honourable Charles Calvert Esq; and Mr. Edmund Jennings; That Mr. Norris began to make some Apologies for the Commissioners of Pensilvania not meeting those of Maryland at the precise Hour agreed upon ; That the said Mr. Jennings retired from the Com- pany, with a View, as this Deponent supposes, that there should not be a Quorum of their side ; The Reasons of the Failure of Meeting, at the precise Time appointed, were told; and that one chief Cause thereof was, that as the Commissioners of Mary • land having, the Day before, objected something so very extra- ordinary, concerning the Circle about Newcastle, that those on the side of Pensilvania thought It proper to a-ive their Answer thereto in Writing, the drawing up of which occasioned their not being precisely punctual to Time ; That this Deponent having the Paper, containing those Answers, about him, signed by five of the Commissioners for Pensilvania, with a Copy there- of, he delivered it to Mr. Hamilton, who gave it into Mr. Ogle's Hands., That Mr. Ogle looked at the Beginning and the End of it, and offered it back again to Mr. Hamilton ; but he refus- ing to take it, Mr. Ogle threw it carelesly down upon a Chair near him, and said that thes r were not then a Quorum, and therefore, could not enter upon any Business; That Mr. Ham- ilton said the Commissioners of Pensilvania were now ready and would meet those of Mayland, either in the Court-House, BOUNDARY QUESTION. 471 or at any other place, where they would appoint ; That Mr. Ogle insisted, that as they had failed in Point of Time in the Morning, he should not think himself obliged to appoint any other Meeting; and, as the Affair between the two Proprietors of Maryland and Pensilvania was of very great consequence, that if any Benefit should accrue to his Constituent by such Failure, that he could not answer it, either to Lord Baltimore or him- self, if he did not take the Advantage of it. That, thereupon, Mr. Hamilton observed that, if he imagined the Failure of an Hour, or an Hour and a half, could be understood as a wilful De- sign to break up their Meeting, that he would most certainly find himself greatly mistaken; for that, in all Cases, where Commis- sioners are appointed to transact any'Affairs, the Delay of an Hour, or two, or three, or more, is of little or no Signification; for that, though anyone particular Hour might be appointed, yet. if they met at any time in that Day it would be sufficient, and that it was an adjudged Rule, in the Books of Law, that Commissioners on one side were obliged to wait for those of the other from Nine o' Clock in the Morning till Six in the Evening. Mr. Hamilton, likewise, observed that it was very extraordinary they should so rigidly insist upon the Failure of so small a Space of Time, when they very well knew, that at their former Meetings at Newtown, and the said Town of New- castle, sometime in October last, many Delays were occasioned on their side; at Newtown especially, that the Articles of Agreement were objected to, because some of Mr. Penn's Family did not sign them; That it was made appear, they were signed by all the necessary Persons concerned ; and that the rest of the Commissioners were satisfied in that Point, when, at last, Mr. Ogle gave it up, but with a Reserve, for that time only ; and that, upon their meeting afterwards at Newcastle, pursuant to their Adjournment at Newtown, other Difficulties were started ; For, notwithstanding that, in the Articles of Agreement, Recitals of all the Grants and Deeds necessary wWe made, yet, they in- sisted upon seeing the originals, in Compliance to which the Commissioners of Pensilvania sent up one of their Number to Philadelphia, to bring down the same, which occasioned a Delay of one Day, at least ; That, when those Originals were produced, and found to be agreeable to the respective Recite- ments, they further insisted to have Copies thereof, or such Parts thereof as they thought necessary, which was likewise complied with ; Mr. Hamilton further mentioned that Mr. Ogle might very well remember, that it was the Opinion of the Gen- tlemen of Pensilvania that a Clerk or Clerks should be ap- pointed to take Minutes of the Pi"oceedings of the Commission- ers on both sides, that their Transactions might appear, which 472 PENNSYLVANIA AND MARYLAND the Gentlemen of Maryland would not agree to; That it was then proposed by the Commissioners of Pensilvania that each Side should take their own Minutes, and exchange them signed, but that was also refused on the side of Maryland ; That, from such Proceedings, Mr. Hamilton said, he could not help ob- serving that it appeared to him that the Gentlemen of Mary- land were not inclined to execute the Articles with such Fair- ness, Candour and Dispatch as is therein recommended. Mr. Ogle replied that as he knew little or nothing of the Law, he desired to be excused from entring into an Argument with one of that Profession : A Meeting of the Commissioners being again pressed by those of Pensilvania, and refused on the side of Maryland, Mr. Charles read a Notice of Meeting at the Court- House of the said Town of Newcastle at Six of the Clock that Evening, which Mr. Ogle refused to take notice of, but it was left with him, and the Commissioners of Pensilvania attended at the said Court-House from Six of the Clock till some time after Eight, this Deponent being with them all the while; but as the Commissioners of Maryland did not come there.it was thought proper to give them fresh Notice of meeting on the Monday following, at Ten o'Clock in the Forenoon; and that the Deponent waited upon Mr. Ogle at his Lodgings, between the Hours of Nine and Ten in the Evening, and acquainted him that one of the Commissioners on the side of Pensilvania was there, with a Message to deliver him from the rest ; That Mr. Ogle answered, it was an unseasonable Time, and would receive no Messages, that he did not choose to say an uncivil thing to any Gentleman, and therefore desired to be excused from ad- mitting him; That though Mr. Ogle would not suffer that Com- missioner to wait upon him, yet the Notice of Meeting, at Ten o'Clock, on the. Monday following, as above mentioned, was (as this Deponent was informed) served upon four of the Com- missioners for Maryland, that same Night, but, instead of pay- ing any regard thereto, all the Commissioners for Maryland set out from Newcastle the next Day, being Sunday. This De- ponent thinks proper to observe, that though what he has above deposed may not be delivered in the same Words, nor in the same Order, in which they passed; yet, that the several Deposi- tions are strictly true, and as nearly in the same Words and Order as his Memory can furnish him with, and further this Deponant saith not. Sworn before the Mayor of Philadelphia the 26th of the same February 1732. Mr. Hasell the Mayor of Philadelphia not only proves that Mr. Georges swore to the foregoing Affidavit before him, but he also adds, he believes the said Affidavit was writ by the said Georges, and it makes the Pensilvania Exhibit markt Q. q. BOUNDARY QUESTION. 473 1732, Feb. 3. The following is a very sensible and material Paper, which our Commissioners delivered to Mr. Ogle upon this Day, in Writing, in answer to. the pretended Doubts about the Center and Dimensions of the Circle, viz. The Commissioners on the Part of Maryland having made two Objections against running the Circle, or Part of a Circle, about the Town of Newcastle, as directed by the Agreement made between the Proprietaries of Penailvania and Maryland. 1. For that there being no Center fixed, or agreed upon by the said Proprietors, from whence the said Circle shall be drawn, they conceive they have no Power to make a Center, and therefore are not warranted by their Commissions to run the said Circle. 2dly, For that the Deed of Bargain and Sale, or Feoffment, from the late Duke of York, to the late William Penn Esq ; the elder, for the Town of Newcastle, and the Lands about the same, being expressed in these Words, to wit, All that the Town of Newcastle otherwise called Delaware, and all that Tract of Land lying within the Compass or Circle of twelve Miles about the same, scituate lying and being upon the River Delaware in America, the said Commissioners for Maryland do object, That the Circumference or Periphery of that Circle is to be twelve Miles, which they say will make a Diameter scarce four Miles, or at most, it will but make a Diameter of twelve Miles ; so that the Radius of the Circle to be run by the present Agi'eement about the Town of Newcastle will be but six Miles at most, and that the Words in the Articles of Agreement and Com- missions, which direct that the Circle shall be at the Distance of twelve English Statute Miles from the Town of Newcastle, are either superfluous, or are contradictory to the Description in the Deed of Feoffment, and therefore, void in themselves. To which Objections, the Commissioners on the Part of Pensilva- nia, answer, that they conceive the Commissioners on both sides, being empowered and directed by their Commissions, in pursuance and in part performance of the said Articles of Agree- ment, to draw and mark out the said Circle mentioned in the Charter of Pensilvania and Deed of Bargain and Sale or Feoff- ment,of Newcastle, or so much thereof as shall be requisite, at twelve Miles Distance from the Town of Newcastle, which twelve Miles shall be twelve English Statute Miles, and, to do every thing necessary for running the same accordingly, and that the Words in the said Deed, as well as the Words in the said Articles of Agreement and the several Commissions from the respective Proprietors to their Commissioners, contains such a Certainty, as will well warrant the Commissioners to proceed in drawing and marking out the said Circle, or so 474 PENNSYLVANIA AND MARYLAND much thereof as shail be thought requisite. As to the second Objection, The Commissioners of Pcnsilvania are of opinion, that it is not from the Words of the before mentioned Deed, only, that the Radius of the said Circle is to be judged of or measured, but, likewise, from the Charter of Pensilvania, and the Grant of the late Duke of York to William Penn Esq ; the Elder, for that Tract of Land upon Delaware River and Bay, now called by the Names of Sussex, Kent, and Part of New- castle County. And, if any Doubt could arise, upon the Words of the Deed of Bargain and Sale for the Town of New- castle, &c. concerning the Radius of the Circle of twelve Miles about the said Town, we conceive it is fully explained, cleared up, and reduced to a Certainty, by the aforesaid Charter and Deeds; for, it is to be observed, that, as the Town of Newcastle and the twelve Miles round the same, was originally appro- priated by the said late Duke of York for certain Purposes, before he granted the same to the said William Penn, so, King Charles the Seeond, when he granted the Province of Pensilva- nia, took care not to encroach upon that Circle, but begins the Bounds of the said Province from twelve Miles distant North- ward of Newcastle Town. Thus, by the King's Grant of the Province of Pensilvania, we see, that he understood the Peri- phery or Circumference of the Circle about the Town of New- castle to be twelve Miles distant from the same. It is further observable that, by the Grant of the said late Duke of York to the said late William Penn the Elder, of that Tract of Land now containing Sussex, Kent and Part of Newcastle County, the said Duke, who was at the Time of making the said Grant, Owner of both the said Town of Newcastle and the twelve Miles round the same, and also of the said Tract of Land lying on the River and Bay of Delaware, understood the Circumference of the said Circle to be at the Distance of twelve Miles from the Town of Newcastle, and, accordingly, describes the Bounds of the said Tract of Land as lying on Delaware River and Bay, and begin- ning twelve Miles South from theTown of Newcastle and extend- ing South to Cape Henlopen, &c. From all which, we conceive, it is most evident that the Circumference of the Circle about the Town of Newcastle is twelve Miles distance from the same, for so it appears King Charles the Second, who was the ori- ginal Granter, understood it, when he bounded the Province of Pensilvania at the Distance of twelve Miles North of the Town of Newcastle ; And the said late Duke of York, who was Owner of all the Land to the Southward of Pensilvania as far as Cape Henlopen, and had the unquestionable Right to declare the Meaning of his own Grant, he has declared how he understood the Extent of that Circle, by beginning his Grant of the Lands BOUNDARY QUESTION. 475 lying on Delaware and to the Southward of the said Town of Newcastle at twelve Miles Distance from the same. But, were it possible, after Consideration had of the said Charter and Deeds, for any Person to be in doubt, about the Extent of the said Circle, or Part of the Circle, now to be markt out by the Commissioners, we, on the Part of Pensilvania, are clearly of opinion that the Proprietors of both Provinces, who are the sole Owners of all the Lands lying between the Bay of Chesa- peak and the River Susquehanna to the Westward, and the Bay and River of Delaware to the Eastward, have, as they had an undoubted Right to do, in most full and express Terms, removed that Doubt, by the second Article of their Agreement, where they say. that there shall be the said Circle mentioned in the said Charter for Pensilvania and Deed of Bargain and Sale or Feoff- ment of Newcastle (or so much thereof as is requisite) drawn and marked out at the twelva Miles Distance from the Town of Newcastle, which twelve Miles shall be twelve English Statute Miles. And as to the Objection, that so much of this Article as directs the Circle to be at twelve Miles distance from the Town of Newcastle is superflous, or contradictory to the Deeds of Feoffment aforesaid, and, therefore, void in itself, we do not conceive it deserves any other Answer than to say, that this Article is neither superfluous nor contradictory, but a plain Declaration of what has been always understood to be meant by twelve Miles about the Town of Newcastle; And that the Proprietors of Maryland and Pensilvania had, undoubtly, a good Right to divide their own Lands in such manner as they thought fit, And they have, accordingly, agreed that the Circle about the Town of Newcastle shall be drawn and markt out at the Distance of twelve English Statute Miles from the said Town, and the Commissioners on the Part of Pensilvania are now ready, and offer themselves to proceed to the drawing and marking out the same accordingly. Note. My Lord Baltimore in the Schedule to his Answer, at Fol. 573, admits that the foregoing Paper was delivered to his Com- missioners, at another time, viz. upon 4 September 1733. The foregoing Paper is proved by Messieurs Logan, Preston, Steel and Taylor, and is the Pensilvania Exhibit markt E. Note. It comes out in Evidence, that there was one verbal Request, this Day, to meet before Dinner, and another verbal Request to meet, after Dinner, but, those being refused, 1732, Feb. 3. A signed Notice, by four of our Commissioners, directed to 476 PENNSYLVANIA AND MARYLAND the Lord Baltimore's Commissioners; That the Commissioners having agreed to meet at Newcastle, at Ten, or Eleven, o'Clock in the Forenoon of the 3d Instant, but, by reason of Indisposi- tion, a quorum of our Number not appearing at the precise Hour ; We do now give you the Commissioners on the part of Maryland Notice, that we will meet you at the Court-house, in this Town of Newcastle, at Six o'Clock tiiis Afternoon. This is proved by Messrs. Logan and Preston, and is the Pensilva- nia Exhibit B. No. 1. This produced no Meeting, neither. Feb. 3. Another signed Notice, by four of our Commissioners, di- rected to Mr. Ogle, and which was served (tho' he refused to be seen) upon four others of the Maryland Commissioners, That since you have declined meeting us this Afternoon at the Court- house, pursuant to the Notice given you, we judge it necessary to give you further Notice, that we will continue here till Monday the 5th Currant, in order to meet you at Ten of the Clock in the Forenoon of that Day, at the said Court-house, there jointly to proceed to the Execution of our respective Com- missions, which we on our parts have declared ourselves ready to do, as from the Paper signed by us, and this Day delivered by one of our Number into your Hands, may fully and clearly appear. This Paper is spoke to by Messrs. Logan and Preston, and is the Pensilvania Exhibit markt B. No 2. Instead of meeting on the Monday, the Maryland Commis- sioners left the Town, and went back to Maryland, on the Sunday. Feb. 15. Is the Date of Lord Baltimore's Letter to the Governor of Pensilvania, reviving the Meetings, and appointing one at J op- pa; which we have particularly charged at Fol. 304, in our Bill : and the Defendant has expressly admitted it in Fol. 316. of his Answer, which we must refer to; for we have it not to produce, nor are we bound to produce it, it being my Lord's Letter to Major Gordon, who is proved to be dead. Notwithstanding that Notice from my Lord Baltimore him- self that the Commissioners should meet at Joppa on the 7th of May, we shall see what my Lord himself and his Commis sioners did, in Maryland, in the meantime; he himself being then there. For we have proved by the Reverend Mr. Hugh Jones of Maryland, a Copy of the following Letter which Governor Ogle wrote to him, and which he sent to another Person. BOUNDARY QUESTION. 477 1732, Mar. 8. To the Rev. Mr. Jones in Cecil County, These. Annapolis Mar. 8, 1732. Sir, I send you this, on purpose to desire you not to fail being here at the Meeting of our Assembly, having several Things to communicate to you in relation to his Lord- ships' Interest, which cannot well be brought into the Com- pass of a Letter; However, I can't, in the mean time help giving myself the Pleasure of acquainting you that we are not at all sorry at the unreasonable Behaviour of the Commission- ers for Pensilvania, in refusing to run out the Circle about New- castle, as mentioned in their pretended Deed of Feoffment ; For, altho' that would be only at about two Miles Distance from Newcastle, yet, it is what I believe, they would be glad to get hereafter; my Lord having, now, the most reasonable Hopes that can be of getting every Inch of the three lower Counties, which are so indisputably his Right. This, to tell you my thoughts freely, will be the greatest Happiness that can be to the present Tenants, however they may have been deceived by artful People; His Lordship being determined to let such of them, as behave well to his Lordship, enjoy the Land they hold, without exacting any thing of them, either for arrears of Rent, or any other Cause whatsoever besides the ordinary Conditions of Plantations, which you know comes but to a Trifle. lam Sir Your assured Friend and humble Ser- vant Sam. Ogle. This Letter has the following Underwriting " I attest that this is a true Copy of a Letter lately sent, by Express, from his Excellency the Governor to me. H. Jones. This Letter has an Endorsement thereon thus "To Mr. Lloyd, "Mai-. 17, 1732. Sir, 'Tis a great Satisfaction to me, that my "Lord Baltimore will condescend to the Particulars of this "Letter; I communicate it to you, to shew any of your Friends "that may have any Interest therein, and am, Sir, Your's. H. " Jones. The foregoing Copy of a Letter is proved by Hugh Jones Clerk of Maryland, and is the Pensilvania Exhibit in a marbled Cover, No. 2. Note. This was to draw off our Tenants, while my Lord himself had writ to appoint a new Meeting at Joppa, and the Original hereof was writ by his Governor and first Commissioner Mr. Ogle. But, lest this should not be quite plain enough, nor quite publick enough, we have also proved the following printed Advertisement. 478 PENNSYLVANIA AND MARYLAND Mar. 21. •'Annapolis, Mar. 21, 1732. By Order of the Right Honour- "able che Lord Proprietor. To all Persons whom it may con- " eern, All Takers-up of Land within the Province of Maryland, " who may pretend to hold them by virtue of any Grants or Pat- " ents, not deriving the same from the present Proprietor or his "Ancestors, will be intitled to no Benefit thereby, unless they "make speedy Application to Matthew Tilghman Ward Esq; "Agent for the Proprietor. Sign'd by Order, John Ross Dep. " Agent. This also is proved by Hugh Jones of Maryland Clerk, and is the Pensilvania Exhibit in a marbled Cover, markt No 1. and was, by my Lord's own Order posted up on the Borders of the Three lower Counties. So that, while my Lord, himself, had appointed the new Meetings of the Commissioners at Joppa, and was himself in Maryland, here were written, and printed, Invitations and Threats, to draw of our Tenants, and they were to apply to Mr. Ward, another of my Lord's Commissioners. And these last printed Papers are proved to have been stuck up on the Borders of the Three Lower Counties by my Lord Baltimore's own Orders. 1733, Mar. 28. The Notice signed by all the Pensilvania Commissioners, and served personally upon six of .Lord Baltimore's Commissioners in Maryland, viz. Gentlemen. Five of us, the underwritten Commissioners ap- pointed by virtue of a Commission from the Honourable the Proprietaries of Pensilvania, for executing certain Articles of Agreement concluded between them and the Right Honourable Charles Lord Baltimore, Proprietor of the Province of Mary- land, touching the Limits of the said Provinces and Counties of Newcastle, Kent and Sussex on Delaware, having met the like Number of you, the Commissioners appointed by the said Lord Baltimore, at Newcastle, on the first Day of February last, pur- suant to our former joint Adjournment, and continued together till the 3d Day of the same Month, when, from a pretended Fail- ure by reason of a Quorum of us not appearing at the precise Hour in the Forenoon of that Day, to which we stood adjourned, you thought fit to withdraw yourselves from the Court-house of the said Town of Newcastle, the Place of our Meeting, and, not- withstanding you, and we, met together, several times, after- wards, in the same Day, yet, insisting on" that supposed Fail- ure, you refused, as Commissioners, to join with us, in the Execution of our respectiv? Commissions, by which Refusal, BOUNDARY QUESTION. 479 we were obliged to serve you with Notice to meet us the same Evening, at sixo'Clock, at the Court-house of Newcastle afore- said, which you neglecting to do, we, the same Evening, again, ser\ed a Quorum of you (Access being denied us, to others of your Number) with Notices to meet us at the Place aforesaid on Monday the 5th Day of the said Month ; which, likewise, you thought fit so little to regard, that, leaving Newcastle the Day before, you again neglected to meet us at the Time and Place, by the said Notices appointed. But we the underwritten Commissioners, notwithstanding the Disregard shewed to our former Notices, being still willing to proceed on the Business which now lies before the Commissioners jointly, (viz.) the Execution of the second Article of the said Agreement, which follows in these Words. "That there shall be the said Circle, "mentioned in the said Charter for Pensilvania, and Deed of " Bargain and Sale or Feoffment of Newcastle (or so much there- "of as is requisite) drawn and markt out at the 12 Miles Dis- "tance from the Town of Newcastle, which 12 Miles shall be 12 "English Statute Miles") Do hereby give you, and each of you, Notice, That we, or a sufficient Quorum of us, will attend at the said Town of Newcastle on Delaware (which by the joint Consent of the Commissioners on both Sides, hath been acknow- ledged to be the only Place proper for beginning the Business immediately before us) on the 16th Day of April next ensuing, there to meet and join with you, agreeable to the Directions of our respective Commissions, in proceeding to draw and mark out the said Circle accordingly. (riven under our Hands at Philadephia the 28th Day of March 1733. The foregoing Paper is proved by Messrs. Logan and Preston, who signed, and by William Biddle who serv'd it; and is the Pensilvania Exhibit markt B. No. 5. May 7. The written Question from the Maryland Commissioners, whether the Pensilvania Commissioners, would run out any Circle, other than at 12 Miles Distance? And the Pensilvania Answer, that they conceived themselves directed to run no other than that in the Articles, which they mention s erbatim. This is proved by Messrs. Preston, Logan and Steel, and is, exactly asset forth by the Schedule to the Defendant's Answer at Fol. 532, 533. The Original is Pensilvania Exhibit markt Letter H. May 8. The Pensilvania Commissioners written Proposal, and the Maryland Answer of this Date, are set forth in Fol. 536. of the Defendant's Answer. The Orginals are proved by Messrs. Logan, Preston and Steele, and are the Pensilvania Exhibit markt I. 480 PENNSYLVANIA AND MARYLAND May 8. The Maryland Commissioners written proposal and the Pen- silvania Answer, of this Date, are set forth in 540. of the De- fendants answer. The Originals are proved by Messrs. Logan, Preston and Steele, and are the Pensilvania Exhibit markt J. May 9. The written Minute of Adjournment from Joppa is set forth in the Defendant's- Answer, Fol. 545. The Original is proved by Messrs. Logan, Preston and Steel, and is markt K. May 26. The written Minute of this Day is set forth in Fol. 550. of the Defendant's Answer. The Original is proved by Messrs. Logan, Preston and Steel, and is markt L. Aug. 2. An Order of the King in Council, made upon the Petition of the now Plaintiffs, John, Thomas and Richard Penn, and upon a Report from the Committee of Council dated the 1st of Au- gust; taking Notice that they had delivered to the Lords of Trade a Declaration under their Hands and Seals, in the usual Form, for saving the Right claimed by the Crown to the three Lower Counties; whereby his Majesty approved of the said Patrick Gordon to be Deputy- Governor of Pensilvania without Limitation of Time, and of the said Counties during his Pleas- ure only; provided he qualified himself according to Law, and gave 2000Z. Security before the Lieutenant-Governor of Virginia for observing the Acts of Trade. This Exhibit is Co. Off. No 27. Note— This Order of Council is also entred in Newcastle Records, No. 11. Fol. 102. Sept. 3. The Pensilvania Demand, of this Date, is set forth in the Defendant's Answer Fol. 553. The Original is proved by Messrs. Logan, Preston and Steel, and is Pensilvania Exhibit, Letter M. Sept. 4. The Maryland Answer thereto of this Date, is set forth in the Defendant's Answer Fol. 556. The Original is proved by Messrs. Logan, Preston and Steel, and is in Pensilvania Exhibits, Letter N. Sept. 4. The Pensilvania Paper of this Date, is set forth in the De- fendant's Answer Fol. 562. The Original is proved by the same three, and is in the Pensilvania Exhibits, Letter O. Sept. 5. The Maryland Answer of this Date, is set forth in the Defend- BOUNDARY QUESTION. 481 ant's Answer Fol. 588. The Orignial is proved by the same three, and is in the Pensilvania Exhibits, Letter P. £ept. 6. The Pensilvania Categorical Demand, that the others would run the Circle at 12 Miles Distance, or else declare they would not? The Copy is set forth in Defendant's Answer Fol. 584. The Original is proved by the same three, and is in Pensilvania Exhibits, Letter Q. Sept. 6. The Maryland Answer thereto, they cannot agree to that Circle. The Copy is set forth in Defendant's Answer Fol. 596. The Original is proved by the same three Persons, and is in Pensilvania Exhibits, Letter S. Sept. 6. The Maryland Demand, whether the Pensilvania Commis- sioners will run no other Circle? The Copy is set forth in De- fendant's Answer Fol. 598. The Original is proved by the same three Persons, and is in the Pensilvania Exhibits, Letter R. Sept. 6. The Pensilvania Answer, that they can't agree to run any other. The Copy is set forth in the Defendant's Answer Fol. 599. The Original is proved by the same three Persons, and is in the Pensilvania Exhibits, Letter T. Sept. 6. The Minute of Adjournment to the 14th of November. The Copy thereof is set forth in the Defendant's Answer Fol. 601. and the Original is proved by the same three Persons, and is in the Pensilvania Exhibits, Letter U. Nov. 14. From the Newcastle Records, an Entry recorded there, of a Testimonial given by Mr. Gooch the Lieutenant-Governor of Virginia, under the G-reat Seal of that Colony, that Colonel Gordon had taken the Oaths, subscribed the Test, took the Oath of Office, and given 2000Z. Bond to observe the Acts of Trade, before him. Newcastle Records, No 11. Fol. 103. Nov. 16. The Maryland Paper of Proposals at Newcastle, to go away to Cape Hinlopen to run the East and West Line there. The Copy is set forth in the Defendant's Answer, Fol. 606, and the Original is proved by Messrs. Logan, Preston and Steel, and is in the Pensilvania Exhibits, Letter W. 31— Vol. XV. 482 PENNSYLVANIA AND MARYLAND Nov. 17. The Pensilvania long Answer thereto, recapitulating the several Instances of Chicanery which had been used by the Maryland Commissioners. The Copy is set forth in the De- fendant's Answer Fol. 609. and the Original is proved by the same three Persons, and is in tne Pensilvania Exhibits, Letter X. Nov. 19. The Maryland long Answer thereto, pretending that there were no Minutes taken to justify what was therein contained, (which was one of the Objections all along that they refused to let Minutes be taken) and telling them plainly they must either continue at Newcastle without running the Circle, or else depart without Adjournment. The Copy is set forth in the Defendant's Answer, only with some Mistakes in the Copy- ing made by the Clerk, Fol. 635. and the Original is proved by the same three Persons, and is in the Pensilvania Exhibits markt Letter Y. Nov. 20. The Pensilvania long Reply thereto is set forth in the De- fendant's Answer Pol. 671. The Original thereof is proved by the same three Persons, and is in the Pensilvania Exhibits markt Letter Z. Nrv. 22. The Maryland Paper then delivered. It is set forth in the Defendant's Answer Fol. 703. And the Original thereof is proved by the same three Persons, and is in the Pensilvania Exhibits markt Letter Z a. Nov. 23. The Pensilvania Answer thereto is set forth in the Defend- ant's Answer Fol. 716. and the Original is proved by the same three Persons, and is in the Pensilvania Exhibits markt Letters' Z b. Nov. 24. The Pai-ting Minute, signed by the Commissioners on both sides, declaring their Difference in Judgment to be, whether the Circle was to be 2, or 12 Miles distant from Newcastle, and then breaking up without further Adjournment. The full Purport of this is set out in our own Bill Fol. 347. It is again set out, verbatim, at Fol. 338. in the Body of the Defendant's Answer, and also at Fol. 726. in the Schedule to his Answer. The Original is proved by Messrs. Logan and Preston, and is in the Pensilvania Exhibits markt Letters Z c. BOUNDARY QUESTION. 483 Jan. 10. A Report then made by all the seven Pensilvania Commis- sioners to their Proprietors, and then signed, and afterwards sworn and affirmed to by them, in Pensilvania, containing in it a Minute Relation of all that had nast from day to day, between the Commissioners on both sides, and also containing Copys, at full length of all the foregoing Papers which past, between them ; and which Paper (as some of those Commis- sioners are since dead) we have proved to have been signed and sworn to by all the seven Commissioners, by Messrs. Logan, Preston, Hamilton and Graeme. It is, of itself, a large Book, under the Great Seal of Pensilvania, markt A. But as others of the Commissioners are still living, and have, in this Cause, given Evidence to the same Facts, and proved the Copies of the same Papers exchanged between the Commis- sioner on each side, I would not again incumber you with that Heap of Matter. Only this, That in Fol. 26. and 27. of this Report, they have inserted the Body of my Lord Baltimore's Letter of 15 Feb. to revive the Meetings of the Commissioners, and appointing the Meeting at Joppa for the 7th of May, of which at present we have no other Copy. Chap. XV. From Christinas 1733, to the Time of filing the present Bill in June 1735. 1734, Aug. 8. The now Defendant's Petition to the King in Council, wherein he states the Charter for Maryland, and that his Ancestors, pursuant to the Design of the said Charter, with great Charge and Difficulty proceeded to cultivate and settle such Part of the Country so granted, as the Nature thereof would admit, intending, by Degrees, to make a compleat Settlement of the whole. "That it appeal's by an Order of Council of the 4th of "April 1638, that Captain William Clayborne, on the Behalf of "himself and Partners, having presented a Petition to his late "Majesty, King Charles the First, shewing that, by a Commis- "sion from his Majesty, they had planted upon an Island in "the Great Bay of Chesepeak in Virginia, named the Isle of " Kent, and others Places therein mentioned, and bestowed "great Charges thereon, and that the Lord Baltimore had ob- "tained a Patent from his said Majesty, comprehending the "said Island and Places, within the Limits thereof, they thereby "prayed a Grant of Confirmation of the said Island and "Places to the said Petitioners; and the Matter of the said 484 PENNSYLVANIA AND MARYLAND " Petition being referred to the then Lord Archbishop of Canter- bury, the Lord Keeper, Lord Privy Seal, and others, and it "appearing that the said Isle of Kent was within the said Lord "Baltimore's Patent, and it appearing also, by an Order of "Council of the 3d of July 1633, that the Right and Title to "the said Isle of Kent, and other Places in Question, had been "resolved and declared absolutely to belong to the Lord Bal- "timore, their Lordships declared, that no Grant should pass "to the said Clayborne or any others of the said Isle of Kent, "or other Places within the said Patent." That the Petitioner conceives, from the said Order of Council, and from the Body of the Patent, (which hath no restrictive Words of hactenus inculta) that all Lands, within the Limits of the said Patent, did pass to the Lord Baltimore ; but finds that, pursuant to an Order of Council dated the 31st May 1683, the Lords of the Com- mittee for Trade and Plantations, amongst other Things, re- ported that the Land intended to be granted by the Lord Balti- more's Patent, was only Land uncultivated and inhabited by Savages, and that Part of the said Land called Delaware was in- habited by Christians, at and before the Date of the Patent, [Here, in pretending to set out this Order, he only leaves out these essential Words, viz. As it hatn been ever since to this Time, and continued as a distinct Colony from that of Maryland] and were, therefore, of Opinion that the Tract of Land lying be- twaen the River and the Eastern Sea on the one-Side, and Cheso- peake Bay on the other, should be divide into equal Parts, by a Line from the Latitude of Cape Hinlopen to the 40th Degree of Northern Latitude, and that one Half thereof, lying towards the Bay of Delaware and the Eastern Sea, should be adjudged to belong to his then Majesty, and that the other Half should re- main to the Lord Baltimore, as comprized within his Charter, which was accordingly ordered by his said Majesty King James the Second by Order of Council of 7th November 1685. But the Petitioner shews, that if any Part of the said Tiact of Land mentioned in the said Report was inhabited at the Time of the said Patent, by any Christians, yet, they were not Subjects of the Crown of England, but Swedes and Dutchmen, or the Sub- jects of Foreign Nations. That, as the whole of that Part of the said Peninsula is plainly described within the Limits of the said Grant to the Petitioners's said Ancestors under whom he claims, so he conceives the same was intended to pass, and did pass, by the said Charter: in regard the chief Design thereof was to enlarge and extend the English Empire and Domin- ion, and, therefore, in the Body of the said Charter all that Part of the said Peninsula, comprized within the Limits therein delineated, is granted, without any Qualification or Restric- BOUNDARY QUESTION. 485 tion, of the said Words hactenus inculta mentioned in the Recital of the said Charter. That, alt ho' the said Order of King James cannot legally infringe the Rights of the said Charter, yet, the same may hereafter create Doubts, and occa- sion the Petitioner's Right, to the Lands therein mentioned, to be drawn in question, and thereby create great Expence to the Petitioner; but the Petitioner prays the King not to inter- pret the said Words hactenus inculta, in a Sense exclusive of any Part of the said Peninsula lying within the Limits of the said Charter, altho' some very small Parts thereof should, at the Date thereof, happen to have been inhabited by the Sub- jects of Foreign Powers; and that, in regard the Petitioner's Ancestors had been at great Expence and Hazard, to settle and plant that Part of the said Peninsula, described within the Limits of the said Charter, and to extend the Empire and Do- minion of the Crown of England, agreeable to the Royal In- tention, as expressed in the said Charter. He prays that the King would, by a further Charter or Letters Patent, confirm unto him and his Heirs and Assigns the whole of such Part of the said Peninsula as is contained within the Limits of the said Charter, notwithstanding the said Words of hactenus inculta, in the Recital of the said former Charter or Letters Paten t~ in- serted. Co. Off. No. 28. Note. You'll observe there is not a Syllable of Mention made in this Petition of the Province of Pensilvania, or of the Proprie- tors of it, or of the three lower Counties, (which are not once named) or of the long Possession and Improvement made there- on, or of the Articles of Agreement which he had entred into : but he, by this Petition, presented in a few Days after a Second of the Plaintiffs was gone abroad, falsely sets up the pretended forged Order of 4 April 1638, drops every material word in the Final Order made in 1685. and petitions, behind the Plaintiffs Backs, upon these Falsehoods and gross Concealments, for a Grant to himself of those three lower Counties which he had already conveyed and covenanted to make further Assurance of to the Plaintiffs ; and, their Interest whereto, he had covenanted to support and assist, by all the Means in his Power. But this is like every other Part of his Proceedings. 1734, Aug. 8. By Order in Council the foregoing Petition was referred to the Lords of Trade to examine the Matters and Facts contained therein, and report the same, together with their Opinion, there- upon, to his Majesty. Co. Off. No. 20 When this Petition was preseuted Mr. John Penn was, a few 486 PENNSYLVANIA AND MARYLAND Days before only, gone to Pensilvania; Mr. Thomas Penn the second Brother, had been there constantly for two Years before, immediately after executing the Agreement; and there was none of them in Europe but Mr. Richard Penn, the youngest Brother, who was but just come of Age, and knew nothing of the Matter. There was no Notice of this Petition given, even to him, but the Lords of Trade by their Secretary, sent a Sort of Notice of this Petition to Mr. Paris, who on the 17th of October brought him down to the Lords of Trade. Dec. 19. Th3 now Plaintiff Richard Penn presented a Petition to the King in Council in behalf of himself and his two elder Brothers, then in Pensilvania setting forth what the former Lord Balti. more had petitioned for, and the Crown had granted to him, in 1632; That that Province of Maryland was evidently known to produce to the Lord Baltimore a very great yearly Profit, and was, by much, the most beneficial Grant in any Subject's Hands in America; That at, and long before, the Grant to Lord Balti- more, the Eastern Side ot the Peninsula had been possest, and was held, by the Swedes and Dutch, as had been manifested and determined by many Orders, made after the fullest Hear- ings and Examinations in Council ; and those Lands were, long after that Grant, taken, and afterwards confirmed by Treaties, from the Dutch ; That on 4 March 1680, King Charles made the Grant of Pensilvania; and in 1682. the Duke of York conveyed the three lower Counties, which lay contiguous to Pensilvania, and on the Eastern Side of the said Peninsula, to the Petition- er's Father, with Covenants for further Assurance; and the Duke had, for a lone: time, been in full Possession of the same under Grants from the Crown ; and had exercised, by his Officers, all Sorts of Acts of Ownership, Proprietorship and Government therein; That there had been, soon after those last Grants, such a Contest in 1683, 84 and 85. and such Determination made ; which Order of 1685 the L:>rd Baltimore had, several Times since, petitioned against; suggesting that it had been made ex parte, or that he had not been heard thereto ; but, upon Ex- aminations into such Suggestions, they likewise have been de- clared to be untrue, and the said Order has thereupon been repeatedly confirmed by subsequent Orders in Council in 1708 and 1709. That the Lord Baltimore hath greatly extended his true Bounds, Northwards, beyond the Beginning of the 40th Degree, as known and understood at the Time of his Grant, but nevertheless, the same do not extend to include the 3 lower Counties, nor do include above a very small Part of one of th e said Counties. That, after the said Order in Council was made, BOUNDARY QUESTION. 487 the Petitioner's Father, fairly and for valuable Considerations, purchased the Lands, which had been so granted to him as aforesaid, from the Indian Natives in those Parts, and sold great Parts of his Family Inheritance, in England and Ireland, (which is of above 1500Z. a Year) and has constantly possest and cleared, settled, peopled and cultivated these Tracts, so granted him ; insomuch, and to so great a Degree, that the same, altogether, make, without Exception, the most flourishing Colony in America for its Age; the Number of Inhabitants in the 3 lower Counties only, being at least 70,000 Souls. That the Petitioner's Father had done this, in the Space of about 50 Years, without one Penny Charge to the Crown or Publick, and at his own sole, but very great, Expence ; having been forced, in order to accomplish the same, to mortgage the very Lands granted to him, besides selling his Family Estate, and to contract other great Debts, many of which are to this Hour unpaid, an 3 for some of which he lay in Prison a considerable Time; and the Petitioner's Father, or his Family, have never received any Sort of Benefit to themselves, from this Grant, nor from his Father's great Labours, Toil, Hazard, and Ex- pence, but are, as yet, many Thousands of Pounds the worse for the same. That as the Bounds between Maryland and the 3 lower Counties had not been exactly delineated and marked out, neither the Petitioners Father, nor themselves, have been able to raise or receive the Quit Rents out of the lower Counties, the Lord Baltimore still making some Pretensions to Land there, whereby the Petitioners have been hindered from mak- ing even further Improvements, and also from receiving some small Fruit and Benefit from this great Undertaking. That in 1731, the present Lord Baltimore drew out, with his own Hand, and offered to the Petitioners his own Proposals for an Agree- ment, in order to accomodate all Differences, and to settle the Bounds between Maryland and Pensilvania, and the three lower Counties; the first Clause whereof was in the Words following, "There shall be a Circle of 12 Miles Distance drawn from New- castle.*' That the said Lord Baltimore, by those Proposals, insisted to extend and stretch his Country, on the North Part, towards and into the Province of Pensilvania; and, on the East Part, towards the 3 lower Counties also, in a manner to which the Petitioners conceived he was no way intitled; but, to put an end to all manner of Differences and Disputes, and that the Petitioners might begin to reap some small benefit, they agreed to every one of Lord Baltimore's own Proposals in the manner he himself had offered them. And his own Plan ot the Country in Question was engraved by his own Mathe- matician, and was printed on the side of the Articles of Agree- 488 PENNSYLVANIA AND MARYLAND ment; which Articles were, during 10 Month's Time, under the Consideration of his own Counsel, Mathematician, Solicitor, and other Agents, and were at last executed by the Lord Bal- timore and the Petitioners on the 10th of May 1732. That those Articles contained the fullest, plainest and clearest Directions for the actual running and marking out the dividing Lines, and also contained Renunciations and Releases, in Fee, from each of the Parties, to the other, of the Lands on the respec- tive sides of the dividing Lines (which Lines were markt out on the Map in the very Margin of the Articles) and of all their Claims and Interests therein and thereto, and more particu- larly the Lord Baltimore himself conveyed thereby, to the Pe- titioners, the said three lower Counties; and one particular Clause was comprised in the said Instruments, in the following express Terms "That there shall be the said Circle, mentioned "in the said Charter for Pensilvania, and Deed of Bargain and " Sale or Feoffment of Newcastle, or so much thereof as is re- quisite, drawn and markt out at the 12 Miles Distance from "the Town of Newcastle, which 12 Miles shall be 12 English "Statute Miles." And the Lord Baltimore covenanted for further Assurance and that he would use all friendly Means and Offices, to the utmost of his Power, to assist and support that Agreement, and the Rights, Interests and Pretentions of the Petitioners by virtue thereof. That the Petitioners had good reason to hope, when they had concluded that Agreement with the Lord Baltimore, at his own Request, and upon his own Terms also, that they should have enjoyed the Benefit of so much Labour and Expence, And the Lord Baltimore and the Petitioners executed Commissions, to 7 Commissioners of each side, to mark and run out the Lines, described and mentioned in the Articles. And the Petitioner Thomas Penn went to Pensilvania, and, some time after, the Lord Baltimore went to the Province of Maryland. That, before his Lordship's Arrival there, the Commissioners, on both sides, had had several Meet- ings to run out the Lines, and the first thing in course to be done, and the first thing directed by the Articles to be Performed, being to mark out the Circle round the Town of Newrastle, the Lord Baltimore's Commissioners, most surprisingly, insisted to run a Circle not 12 Miles distant from Newcastle, as was agreed in express Terms, but something less than 2 Miles distant there- from, declaring that they understood the Articles to mean a Circle whose Periphery was only 12 Miles, the Diameter of which would be less than 4, and consequently it could not be 12 Miles distant, but something less than two Miles distant, from Newcastle: nor would they seem to understand the Words of the Articles in any other sense, unless the Lord Baltimore BOUNDARY QUESTION. 489 himself should ceitify them to the contrary. That, as his Lord- ship was expected in Maryland in some few Months, the Peti- tioners Commissioners readily agreed to adjourn the Proceed- ing till he should arrive, that he might explain to his own Commissioners whether the Words of the Artisles [of lz Miles Distance from the Town] meant only two Miles Distance, or not; not in the least doubting but his Lordship, who had so earnestly pressed and obtained that Agreement from the Peti- tioners, would have instantly set his Commissioners right in their pretended Misapprehension. But, after his Lordship's Ar- rival, his Commissioners still refused to mark out any other Cir- cle than that they had so contended for, although his Lordship was several Months in Maryland during their Meetings, and thereupon the Lines were not actually markt out, which was occasioned purely and simply by the Misapprehension, or pre- tended Misapprehension, of the Lord Baltimore's Commission- ers, of those plain words, and not from any other Cause what- ever. — That the Lord Baltimore returned to England, and the Petitioner John Penn had occasion to go to Pensilvania, (the Petitioners' Affairs there being in a very indifferent Scituation, for want of the said Lines being run out. That, in a very short time after that the said John Penn (who is the eldest brother, and had all the Papers relating to this affair in his Cus- tody, and had been most conversant therein) was gone for Pen- silvania, the Lord Baltimore presented a Petition to his Majesty on the 8th of August last, without so much as naming, or taking the least notice of the Petitioners, or of his own sol- emn Agreement and Conveyance, but setting forth the Grant in 1632, and setting forth some other Matters relating to an Island called Kent (which no manner of way relate to the mat- ter in Question) and partially reciting the Order of Council of November 1685, and containing an Allegation, that, if any Part of the Tract mentioned in that Order was inhabited at the time of the Grant to the Lord Baltimore, by any Christians (which the Petitioner seems to doubt, tho' so clearly and fully estab- lished) yet, that they were not Subjects of England, but of For- eign Nation, and therefore, as the whole Description of that. Pavt of the Peninsula, in the granting Part of the Patent, did not, a second time, contain the Qualification or Restriction of Hac- tenus ineulta menti oned in the Recital of the Patent, he, by his Petition, behind the Petitioners Backs, prayed that his Ma- jesty would, by a further Charter, confirm to him the said Lord Baltimore his Heirs and Assigns, the whole of such Part of the Peninsula as was contained within the Limits of the said Char- ter, notwithstanding the Restriction in the Recital; Thereby, as the Lord Baltimore expects, and has in explicit Terms ac- 490 PENNSYLVANIA AND MARYLAND knowledged, to make a subsequent Grant to Lord Baltimore of these very Lands which he had so lately, and alter so much Advisement, conveyed to the Petitioners, which is what the Petitioners could not have expected. That, throughout the Lord Baltimore's whole Petition, there's nothing which informs iiis Majesty of the Length of the Petitioners Possession, of the very great Improvements made by their Father (to his own and Family's Ruin) of the Agreement so solemnly and so lately entred into between the Lord Baltimore and the Petitioners, or of the Conveyance which himself had so lately made to the Petitioners of the three lower Counties (and which Matters the Petitioners conceive might have been very proper for his Majesty's Information) but, on the contrary, every thing tend- ing thereto is dropt and concealed, and upon the Face of that Pe- tition it might seem as if the Lord Baltimore was petitioning his Majesty only for some small trifling Tract of Land, which was neither claimed. posSest or improved by any Person in the World. That his Majesty having been pleased to refer the said Petition to the Consideration of the Lords for Trade, their Lordships, in the Course of their Office knew of the Petitioners Possession and Clai'n, and from their great Justice it was, that the Petitioner Richard Penn received (about tne 17th of Octo- ber 1734) the first notice that any such Petition was depending. That the said Petitioner, without the most material Papers, or any Instructions, having lost the Assistance of his former Counsel, did get a new Counsel, who had never been acquainted with this very intricate Affair, to attend the Lords for Trade and Plantations upon the 21st of October last, when a first Hearing was had, and another appointed for the 20th Day of December now next, at which former Hearing it was insisted by the Lord Baltimore's Counsel, that if your Petitioners should not shew a, clear legal Title to the Lands prayed for, that your Majesty might be advised to make a Grant now, as prayed, to the Lord Baltimore, which (as was pretended) could not invalidate the Right of your Petitioners, if any they had; but the Petitioners humbly apprehend, that such a Grant might create very great Disorders and Inconveniencies, and would raise the greatest Trouble and Disputes imaginable, and the rather from the Difficulty of settling a, proper Jurisdiction in that Country to try the Rights of the Parties. That the Petitioner Richard Penn is interested but a small matter, in proportion to his two elder Brothers, in the Lands in question, and they, alone, have always had the Custody of the Deeds and Papers relating to this Dispute (which has depended now above 50 Years, but which it was hoped was ended by the Agreement in 1732) and have had the Management of the Affair; and the BOUNDARY QUESTION. 491 present Petitioner has not intermeddled, or been acquainted therewith, and is therefore in a most defenceless State, now in their Absence. That the Petitioners Interests, and also those of all the Inhabitants in the three lower Counties, who hold by Titles derived from the Petitioners Father, and who have laid out their whole Substance in improving particular Parcels there, would be affected, by granting the Prayer of the Lord Baltimore's Petition, and the Petitioner prays Leave to inform his Majesty, that many Thousands of the Inhabitants in the said lower Counties are of the People called Quakers, who have ever behaved as loyal and faithful Subjects, and who, or their Ancestors, l'etired thither to settle in a Place where they have ever enjoyed Freedom of Conscience, and who might be deeply affected, in their Temporal and Religious Rights, both, if now to be put under another Government. That, from the first Notice the Petitioner Richard Penn hath had of the Lord Bal- timore's Petition, no Opportunity (in regard of the Season of the Year) hath offered, of informing the two other Brothers in Pensilvania thereof. That his Majesty has not hitherto been strict upon his Subjects Titles in America, where a long Pos- session and real Improvement has been made, and the Peti- tioners hoped, that their very lone: Possession, and very great Improvement, added to the good Title they have will induce his Majesty to quiet them in their Possession. Therefore pray, that they may not, upon the Petition of the Lord Baltimore, be drawn (especially at so great a Surprize, and in such an un- common Case) to set forth their Right to their antient Posses- sion, and that his Majesty would not be pleased, at the Lord Baltimore's Request, who has so lately conveyed these Lands to the Petitioners, to strip the Petitioners (who have not hitherto received any Benefit from the said Grant) to give the Fruit of their great Labour. Hazard and Expence, to the Lord Bati- more(who has already so very beneficial a Grant) and that his Majesty will not be pleased to grant the Prayer of the said Lord Baltimore's Petition, but to dismiss the same, and to confirm the Petitioners Possession and Title, agreeable to the Limits in the said Deeds of May 1732, between the Lord Baltimore and the Petitioners, and to indulge the Petitioners with a reasonable Time to be heard hereon, and to grant the Petitioners all other Relief in the Premises. Co. Off. No. 30. 1734, Dec. 19. By Order in Council, made upon reading this Petition, it was referred to the Lords of the Committee of Council to consider the same, and report their Opinion thereupon to his Majesty. Co. Off. No 31. 492 PENNSYLVANIA AND MARYLAND It is very true, that we did try to get our foregoing Petition also referred down to the Lords of Trade; but, as it came in so late, the Lords of the Council would not refer it thither ; Where- fore, and as the younger Brother, in truth, knew nothing of this old Affair, we resoUed to let the Board of Trade (whose Inclinations we could very well guess at) make their Report ex parte, upon my Lord Baltimore's Petition: And accordingly, they made just such a Report thereon as was expected. Jan. 16. Report from the Lords of Trade to the King, That they had con- sidered Lord Baltimore's Petition, and acquaint his Majesty, that the Lands in Question, commonly called the three lower Counties on Delaware River, supposed to be excepted by the Words Hactenus inculta, appear to them to be included in the Limits granted by King Charles the First to the Lord Balti- more's Ancestors, but they have been in the Possession of the Penn Family for several Years, which made it proper for us to communicate the Purport of Lord Baltimore's Petition, and of his Majesty's Order thereupon, to the Agent for Messieurs John, Thomas and Richard Penn the present Proprietors of Pensil- vania, that they might have an Opportunity of laying before us what they should think proper in relation to this Petition, and to their Title to the said Lands.* And we have been fre- quently attended by the said Agent, and by Mr. Richard Penn, one of the said Proprietors, upon this Subject, who promised, from time to time, to lay an Account of their Title before us; but, after having kept us in Expectation thereof, for several Months, they, at last, refused to proceed therein, whereby we are disabled from offering anything to your Majesty, relating to their Claim, except what we find by our Books, namely, that, for sometimes past, when any of their Family, Pro- prietors of Pensilvania, have nominated a Person for the Ap- probation of the Crown to be Deputy Governor of that Prov- ince, and of the said three lower Counties, they have given Declarations, under their Hands and Seals, which are extant in our Office from the Year 1702, to the last Nomination in 1733, whereby they acknowledge and agree that the said Approbation and Allowance shall not be construed in any manner to diminsh or set aside the Right claimed by the Crown to the said three lower Counties. Upon their Refusal to proceed herein, we thought it oar Duty to examine the Facts set forth in the Lord *Mr. Paris, in fact, was not Agent for Mr. Penns, nor Sollicitor for them, neither; though the Lords of Trade called him so, to warrant their own Proceeding without sending any Copy of the Petition to the Persons it reallv concerned. BOUNDARY QUESTION. 493 Baltimore's Petition, and the Equity alledged by him as a Ground for his Hopes of your Majesty's favour in this Case. Whereupon we beg leave to acquaint your Majesty, that we find the Lord Baltimore's Original Patent bears Date the 20th of June 1632 and there is no room to doubt, that the Lands in Question are comprised within the Limits described in that Grant. And, with regard to the Interpretation of the Words Hactenus inculta, we have examined the antient Records of our Offlce,f and find by an Order of Council dated the 4th of April 1638, which recites the Purport of a former Order dated the 3d of July 1633, that one Captain William Claybourne having, in behalf of himself and Partners, set forth in a Petition to the King, that divers Years past they had discovered and planted upon an Island in the great Bay of Chesapeak in Virginia, which they had named the Isle of Kent, and that they had likewise settled another Plantation, upon the Mouth of a River, at the bottom of the said Bay in the Sasquehannaugh Country, and that the Lurd Baltiaiore, taking notice of the great Benefit that was likely to arise to them thereby, had obtained a Patent from his Majesty, comprehending the said Island within the Limits thereof; upon which he besought his Majesty to grant him a Patent, under the Great Seal, for the quiet keeping, en- joying and governing of the said Island, Plantations, and Peo- ple, &c. Whereupon all the Parties having been fully heard, we find the Sense of the Council expressed in the following Words, "That, upon what then appeared to them, and also "upon Consideration of a former Order of that Board, dated "July 3d 1633, wherein it appeared that the Difference now in "Question, being then controverted, the Lord Baltimore was "left to the Right of his Patent, and the Petitioners to the "Course of Law, their Lordships, having resolved and declared "asabovesaid, the Right and Title to the said Isle of Kent and "other Places in Question to be absolutely belonging to the "Lord Baltimore, and that no Plantation or Trade with the " Indians ought to be, within the Precincts of his Patent, with- "out Licence from him, did, therefore, likewise think fit and "declare, that no Grant from his Majesty should pass to the "said Cleyborn, or any others, of the said Isle of Kent, or other "Parts or Places within the said Patent, whereof his Majesty's "Attorney and Sollicitor General are hereby prayed to take "notice." But we find that, upon a Dispute, betwixt the Lord Baltimore and the Duke of York (for whom Mr. William Penn was then Agent) concerning a Tract of Land in America, com- fThey have no Record, nothing but an unauthentick Copy, of this pretended Order. 494 PENNSYLVANIA AND MARYLAND nionly called Delaware, wherein we conceive the said three lower Counties to be comprized, the Lords of the Committee for Trade and Plantations reported their Opinion, in May 1683, that the Land intended to be granted by the Lord Baltimore's Patent, was only Land uncultivated and inhabited by Savages, and that the Land, then in Dispute, was inhabited and planted by Christians, at and before the Date of Lord Baltimore's Patent,* whereupon they proposed that the Land, lying between the River and Bay of Delaware, and the Eastern Sea, on the one side, and the Chesapeak, on the other, should be divided into two equal Parts, by a Line from the Latitude of Cape Hinlopen, to the 40th Degree of Northern Latitude, and that one half thereof, lying towards the Bay of Delaware and the Eastern Sea, be adjudged to belong to his Majesty, and the other half to the Lord Baltimore, as comprized within his Charter. Soon after King James the Second's Accession to the Crown, that is to say, in 1685, this Report was ordered to be carried into Execution, and was confirmed by the late Queen in ,1709. Whereupon, as the Sense of the Crown and the Lords of the Council, in these several Decisions, seems to have been governed by the Acceptation of the Purport of the Words Hac- tenus inculta, we beg leave to observe to your Majesty, that not- withstanding these Words are in the Preamble, yet they are not inserted by way of Restriction in the Body or Granting Part of Lord Baltimore's Charter, and as the Authorities seem to us to be equal with regard to the Interpretation hitherto given them, we must humbly submit it to your Majesty, whether the Sense in which they were understood by the Privy Council in 1633 and 1638, being so soon after the Date of Lord Baltimore's Patent, when the real Intention of the Crown in that Grant might have been more clearly known to the Lords of the Council, or the later Decision thereupon, when this Matter was again made the Subject of an Enquiry in Council, so long after- wards as 1683, and 1685, should have the Preference?! Thus much hath occured to us upon the Subject of Lord Baltimore's Pretentions to the Lands petitioned for, and we cannot enter into any Examination of the Claim of the Penn Family, because thev have declined to proceed therein before us. But, if it should be determined that the Right to the Lands in Question still remains in the Crown, we humbly beg leave to offer our Opinion, that the Lord Baltimore hath very just Pretensions to your Majesty's Favour, in Consideration of the great Sums of Money that have been expended by his Ancestors, in settling the Prov- *Here they drop the very Heart and Essence of the real Order. fBallancing a Fiction in 1638, against a most solemn Reality in 1685. BOUNDARY QUESTION. 495 ince of Maryland, and in bringing the Cultivation of Tobacco to Perfection there, whereby the Trade and Revenue of this Kingdom have gained, and do daily receive very great Aug- mentations. But to whomsoever your Majesty shall be pleased to grant the said Lands, if still remaining in the Crown, in our humble Opinion proper Care should be taken to preserve the Inhabitants settled there, in the full Possession of all their Re- ligious and Civil Rights. All which is most humbly submitted. Co. Off. No. 32. 1735, May 10. A Report from the Committee of Council, made upon consid- ering the Report made by the Lords of Trade, upon the Peti- tion of Charles Lord Baltimore, praying for a Grant of Con- firmation of such Part of a Peninsula in America, as is con- tained within the Limits of the Charter, granted to his Ances- tor, in the Reign of King Charles the First, notwithstanding the Words Hactenus inculta, which are inserted in the Recital of the said Charter; and also made, upon two Petitions, the one in the Name of Richard Penn Esq; the youngest surviving Son oi William Penn Esq ; deceased, in Behalf of himself and his two elder Brothers John and Thomas Penn Esqs; now in Pensilva- nia, setting forth their Right to the three Lower Counties of Newcastle, Kent and Sussex, lying within, and contiguous to, the said Peninsula, and therefore praying to be heard against the confirming the said Peninsula, to the Lord Baltimore; And the other, in the Name of the People called Quakers, in behalf of several Thousand Families of Quakers, Inhabitants of the said three Lower Counties, praying also to be heard against the confirming the said Lands to the Lord Baltimore: The Lords of the Committee, this Bay, took the said Report and Petitions into their Consideration, and were attended by Council, as well for the Lord Baltimore, as the other Petitioners, and it appearing that on the 10th of May 1732, Articles of Agreement had been entred into, between the Lord Baltimore and the said John, Thomas and Richard Penn, for adjusting the Boundaries of the Lands granted to them, by their respective Charters, which Articles had not been carried into execution, within the Time thereby limited, But, notwithstanding such Lapse of Time, the Valididy of the said Articles being insisted on. by and on behalf of the said John, Thomas and Richard Penn. The Lords of the Committee do agree humbly to report to your Majesty, as their Opinion, that the Consideration of the said Report and Petitions should be adjourned, until the End of Michaelmas Term next, in order to give an Opportunity to the said John, Thomas, and Richard Penn, to proceed in a 496 PENNSYLVANIA AND MARYLAND Court of Equity, to obtain Relief upon the said Articles of Agreement, so insisted upon by them, according as they shall be advised ; and that after the expiration of the said Time, either Party should be at liberty to apply to the Committee of Council for Plantation Affairs, as the Nature of the Case may require. Co. Off. No. 33. May 1C. An Order of the King in Council approving the skid Report and ordering that the Consideration of the said Report and Petitions, be adjourned, until the End of Michaelmas Term next, that the said John, Thomas and Richard Penn may have an Opportunity to proceed in a Court of Equity, to obtain Relief upon the said Articles so insisted upon by them, accord ing as they shall be advised; And his Majesty doth hereby further order, that after the Expiration of the said Time, either Party be at liberty to apply, to the Committee of Council for Plantation Affairs, as the Nature of the Case may require. Whereof all Persons whom it may concern are to take notice, and govern themselves accordingly. Co. Off. No. 33. June 21. The now Plaintiffs did, in pursuance of the last Order, file their present Bill against the Defendant. Chap. XVI. Of Matters which have past since the Filing our present Bill. June 24. By Indenture of Release Samuel Preston and James Logan, the two Survivors of the Twelve Trustees to whom Proprietary Penn had by his Will devised all his Lands in America upon Trust, conveyed unto John Penn and Thomas Penn and their Heirs, all the Lands, &c. in Pensilvania and in the three lower Counties, &c. To hold one Moyety thereof to the Use of John Penn in Fee, To hold one Quarter part to the Use of Thomas Penn in Fee. and to hold the other Quarter part to the Use of Richard Penn in Fee. Parchment Deed proved by Daniel Flexney. 1737, March 26. By Indenture of Release enrolled in Chancery, Alexander Forbes and William Penn the Grandson, conveyed the Mort- gage which had been made to the said William Penn of Pen- silvania, for securing the 5000Z. and Interest, unto Thomas Jackson in Fee. Parchment Deed proved by Paris. March 26. By a Declaration of Trust enrolled in Chancery dated the BOUNDARY QUESTION. 497 same Day, Thomas Jackson declared that one Moyety of the Money, paid to buy up that Mortgage, was the Money of John Penn, and that the said John Penn was interested one Moyety in that Conveyance from Forbes and William Penn, and should have a Conveyance thereof. Parchment Deed proved by Paris, March 28. An Entry of the Commission granted by John, Thomas and Richard Penn to Colonel George Thomas to be Deputy Gov- ernor of Pensilvania and the three Lower Counties in. New- castle Records. No. 11. Fol. 104. April 21. The now Defendant presented a Petition to the King in Council, setting forth his Charter, and that he was indis- putably intitled to the Tract called Maryland, and likewise to another Tract called the three Lower Counties, which lye con- tiguous to Maryland on one side, and to Pensilvania on the other but are really (as he said) within the Bounds of his Charter, and therefore he apprehends they are Part of his Province, and as such belonging to him. That in King James the Second's Time, Advantage was taken of the Expression Hactenus inculta and, under that Suggestion, the Crown took the three Lower Counties into their own Possession; That the said three Lower Counties, being then incapable to support a separate Governor, and the Petitioners Ancestors being soon after under some legal Disabilities [Roman Catholicks] the Crown permitted the same Person who was Governor of Pensilvania to act as Governor likewise over the three Lower Counties; but, to evidence that this was not done as considering them as Part of Pensilvania, the Proprietors have, always, signed a Declaration that it should not prejudice the Bight claimed by the Crown to the said three Lower Counties ; [He forgets that we held the Government the first twenty Years without any such Declaration.] That the People of Pensilvania, in settling, have made great Incroach- ments on Maryland; To prevent which he, in 1723, made such an Agreement; but they still made Encroachments; to prevent which, he, in 1732, on the Application and Request of the Pro- prietors of Pensilvania, entred into another Agreement with them ; but that Agreement was to be void if the Lines were not run by 25 December 1733; which Time being expired, and the Lines not run, he's advised the said Agreement is null and void : That he has since found he was most grossly deceived and imposed upon, by the Proprietors of Pensilvania, in makingthat Agreement: insomuch that, if it had not been void by Lapse of Time, he's advised he should have been relieved against the 32— Vol. XV. 498 PENNSYLVANIA AND MARYLAND same, on the Head of Fraud and Imposition ; That he presented a former Petition, to have a confirmatory Grant of the three Lower Counties, and that Petition having been referred to the Lords of Trade, and they having reported thereon, and that Report coming on to be heard, together with another Petition on the part of the Pensilvania Proprietors, and they insisting on the said Agreement, as subsisting and in full force, the Lords suspended proceeding on his Petition, till the Validity ot the Articles should be determined, on such Bill to be brought by the Proprietors of Pensilvania, and a Bill has been accordingly filed, for a specifick Performance of the Articles, and is now de- pending. 1. That, during this Dispute, the Sheriff of Pensil- vania with 40 Men in Arms entred the Province of Maryland, and attackt and took Prisoner Captain Thomas Cressap, one of his Tenants, in Cressap's own House, and carried him Pris- oner to Pensilvania. [Note this Fellow had murdered several Persons, was got up very far North in the Country, and, to screen himself, said he was there in Maryland, and he was under Lord Baltimore's Jurisdiction, and my Lord thought proper to patronize and support the Fellow.] 2. That the Proprietors of Pensilvania had lately petitioned his Majesty to approve of Colonel Thomas to be Deputy Governor of Pensilvania and the said three Counties; That he had no Objections to Colonel Thomas's Person, but as the Proprietors of Pensilvania had acted so, in regard to Captain Cressap, and had no legal Right or Title to the said three lower Counties, He prayed two sev- eral things, (which were, at several and distinct times, con- sidered) viz. That no Person should be appointed Deputy Gov ernor of the lower Counties upon the Recommendation of the Proprietors of Pensilvania, but that, until the Dispute between them and him touching the Validity of the Articles should be determined, some indiffernt Person might be appointed to have the Command over the said three lower Counties, by Commis- sion from the King, or, at least, that Colonel Thomas, if to be appointed Governor of the three lower Counties, should be so appointed by Commission directly from his Majesty, and not by Commission from the Pensilvania Proprietors. And he like- wise prayed that Directions might be given for quieting the Possessions, on either side, near the Boundaries, till the Mat- ters in Dispute should be adjusted here at home. Co. Off. No. 34. 1737, April 21. By Order in Council that Petition was referred to the Lords of the Committee of Council, to consider the same, and report their Opinion thereupon to his Majesty. Co. Off. No. 85. BOUNDARY QUESTION. 499 May 5. By an Order, made by the Lords of the Committee, upon reading a Report from the Lords of Trade, which was made upon a Petition of the now Plaintiffs, praying the King's Ap- probation of Colonel Thomas to be Deputy Governor of Pen- silvania and the three lower Counties, and, upon considering Lord Baltimoi'e's Petition referred to the Committee the 21st of April last, the Lords ordered that the said Report should be referred back to the Board of Trade, together with Lord Baltimore's said Petition, who were to examine into the whole Matter, and report their Opinion thereupon to the Committee. And whereas there was also laid before the Committee a Refer- ence of the 17th of March last, of another Petition from the President, Council and Assembly of Pensilvania, complaining of several Acts of Violence done, by Persons acting under Lord Baltimore, against the People of Pensilvania, together with my Lord Baltimore's Answer thereto, and several Papers ac- companying the same, their Lordships likewise ordered that all those Papers should be transmitted to the Lords of Trade, that they might examine into the same, at the same time as they should consider of the other Matters above referred to them, if they thought fit; in which case they were likewise to report their Opinion thereupon, to the Committee, otherwise, to re-transmit the said Papers. Co. Off. No. 36. June 3. A Report from the Lords of Trade that they had read all the Papers referred to them, and had heard my Lord Baltimore and Mr. Penns, by their Council, what they had to offer, with regard to the Appointment of Colonel Thomas by the ProDrie- tors of Pensilvania, for the Government of Pensilvania, and the three lower Counties ; upon which they report, " That "from the Time that the Province of Pensilvania, and the 3 "lower Counties were possest by the late William Penn, they "have been governed either by the Proprietor, or by Deputies "appointed by him and his Successors with the Approbation "of the Crown ; and upon every Appointment of a Deputy Gov- ernor the Proprietors have constantly signed an Instrument "declaring under their Hands and Seals that his Majesty's Ap- probation and Allowance of the Deputies so appointed by "them for the Government of the 3 lower Counties shall not be "construed in any manner to diminish or set aside the Right "claimed by the Crown to the said 3 lower Counties*; what this "Right claimed by the Crown is, as also the Claim made by *This is true from 1702 to this time; but 'twas otherwise from 1682 to 1702. 500 PENNSYLVANIA AND MARYLAND "my Lord Baltimore, appears very distinctly set forth in a Re- port to his Majesty of 21 October 1717. from Sir Edward "Northey and Sir William Thompson, then Attorney and Sol- "licitor General, and of which we take leave to annex a Copy." The Lords of Trade further report, that there having been Disputes, between Lord Baltimore and the Proprietors of Pen- silvania, touching Boundaries, an Agreement was made, between them, 10 May 1732. relative thereto, and not being carried into Execution, the Proprietors of Pensilvaniahad filed their Bill in Chancery against Lord Baltimore for a specific Performance thereof ; " Which Dispute being yet depending in the said Court, "we don't think it proper to advise any Alteration in the usual "manner of appointing the Deputy Governor of the said Three "Lower Counties." And the Lords of Trade re-transmitted the Petition from the President, Council and Assembly of Pensil- vania, relating to Boundaries, and other Papers on that Subject, but proposed, in order to prevent Disturbances for the future, that the King should enjoin the respective Governors to- pre- serve Peace and good Neighbourhood. Co. Off. No. 37. June 15. The Defendant put in his Answer to our Bill, wherein, by the way, he now swears that the Lower Counties are oy no means contiguous to Pensilvania, for that one is of the one Side, and the others on the other Side of Delaware. A wonder- ful Change since his Petition of the 21st of April last, not two Months before ! July 21. Lord Baltimore did not at all like the Report of the Board of Trade in Favour of our Nomination, wherefore he petitioned the King in Council against it ; and insisted that by Sir Edward Northey' s and Sir William Thompson's Report of 1717, it clearly appeared Mr. Penns had no legal Right or Title to the lower Counties; and that on 16 Jan. 1734. the Lords of Trade had made such an [ex parte] Report in his Favour; so that the Petitioner may very safely affirm that there has never yet been any one Determination in Favour of the Right claimed by Mr. Penns to the said 3 lower Counties, and he apprehends it is impossible for them to make out any legal Right or Title thereto ; whereas it appears by the said [ex parte] Report, that the same are included within the Limits of the Maryland Charter; that tho' the said Counties have been, for many Years past, under the Government of the same Person as was ap- pointed Governor of Pensilvania, yet all those Governors (save the last) were so appointed while his Ancestors were under legal Disabilities, being Roman Catholicks. and when the BOUNDARY QUESTION. 501 Government of Maryland was in the Hands of the Crown, or during the Petitioner's Infancy, therefore hopes those instances shall not be used as an Argument now, when those Disabilities are removed ; and the rather, because such Appointments have, in the Progress of the Disputes with Mr. Penn, been constantly made use of, and insisted on, as Evidence of their Right, in Opposition to that claimed and insisted on by the Petitioner; and, as such Approbation, at this Juncture, and pending the Dispute now carrying on in Chancery, would, in all Probability, be insisted on by them, as a further Evidence of their Right, not only against the Petitioner, but against the King too, which might be of great Disadvantage to the Petitioner* That the Petitioner does not desire the Government of the said Counties to be put into the Hands of any of his Nomination ; all that he desires being, that they may be under the Govern- ment of an indifferent Person, till the Disputes between Mr. Penns and him, in relation thereto, are finally settled and ad- justed ; and that, whoever the Person is, he may be appointed by Commission directly from his Majesty. Therefore prays the King to reject Mr. Penns Nomination of Colonel Thomas to be Governor of the said lower Counties, and that the King will please to appoint Colonel Thomas, or such other as He shall think fit, to be Governor of the said Counties, by Com- mission from his Majesty, till the said disputes shall be finally determined between him and Mr. Penns; and that this Peti- tion may come on to be heard at the same time with his former Petition, and the Report of the Lords of Trade made thereon. Co. Off. No. 38. July 21. This Petition was by Order in Council referred to the Lords of the Committee of Council to consider the same and report their Opinion thereon. Co. Off. No. 39. Feb. 4. A Report from the Committee of Council, That they had ap- pointed a Day to consider the two Petitions of Lord Baltimore, referred the 21st of April and 21st of July, relating to the Ap- pointment of the Deputy Governor, but, in the mean time, and before the Consideration thereof, the Agent for Lord Bal- timore attended the Committee, and signified to them that there was a Suit now depending in Chancery between the Pe- titioner and the Proprietors of Pensilvania, for determining *After all these Apprehensions, when this Petition was appointed to be heard, Lord Baltimore would not stand a Hearing; but prayed, and had Leave, to withdraw this Petition, that is, in effect, not to proceed on it, for the Petition still remains in the Office. 502 PENNSYLVANIA AND MARYLAND the Right to the said 3 lower Counties, and that the Petitioner, upon further Consideration, was willing to wait, till the same should be determined, and did not intend to make any Opposi- tion to the Nomination of Colonel Thomas, and therefore prayed to be permitted to withdraw his said Petitions. The Lords of the Commitee thereupon report that his Majesty may be pleased to permit and allow the Petitioner to withdraw his said two Petitions accordingly. Co. Off. No. 40. Feb. 6. By Order in Council made upon reading that Report, his Majesty in Council approved that Report, and ordered that the Lord Baltimore be allowed to withdraw his said two Peti- tions accordingly. Co. Off. No. 40. Feb. 7. Being the very next Day, the Lords of the Committee made a further Report, upon Mr. Penns Nomination of Colonel Thomas, that his Majesty might be pleased to approve ot Colonel Thomas to be Deputy Governor of Pensilvania, and the 3 lower Counties of Newcastle, Kent and Susses in the Manner, and upon the Conditions proposed by the Lords of Trade, [which were in the same Words as the other former instances] and Colonel Thomas, being then in the Leeward Islands, they pro- posed he might qualify himself, and give the Security, before the Governor or Commander in chief in one of the Leeward Island. Co. Off. No. 41. Feb. 15. By Order in Council his Majesty approved that Report, and order'd according to what was thereby proposed. Co. Off. No. 42. Note, An Entry of this last Order in the Newcastle Records, No. 11. Fol. 106. . 1738, May 4. The Lords of the Committee of Council made a Report to the King in Council, upon the Petition of the President, Council and Assembly of Pensilvania, and likewise some cross Petitions from Maryland, which had been referred to their LDrdships on 17 March 1736, and 21 July 1737, complaining, on both Sides, of Disorders and Outrages, committed on the Borders of Mary- land and Pensilvania ; and stating that they had made a former Report on the 29 of July 1737, and that his Majesty had there- upon made a (temporary) Order on 18 Aug. 1737; That, since that Time, several fresh Petitions had come in, from Maryland and from Pensilvania, complaining of fresh Disorders, and that Mr. Penns had petitioned for the King's further Pleasure to be BOUNDARY QUESTION. 503 declared relating to the said Order of 18 Aug. 1737; That the Lords of the Committee had on^the 23d Feb. last proceeded to take all the Papers relating to the said Complaints made by each of the Provinces into Consideration, and were attended by Council on both Sides, and likewise by the Proprietors of both Provinces, and the Counsel desiring that Time might be allowed the Proprietors, to confer together, in order to come to some agreement amongst themselves, that so the Peace of both Provinces might be preserved, till such time as the Boundaries could be finally settled, the Lords of the Committee had com- plyed with their Request, and being, this Day, attended by all Parties, the Counsel acquainted the Committee that the Pro- prietors, of each Province, had accordingly met and agreed to the there following Propositions; to which Propositions the Proprietors of each Province had signified their Consent, before the Committee, and declared their Readiness to carry the same into Execution, if his Majesty should be pleased to approve thereof: and the Committee, considering that this Agreement might be a proper Expedient for restoring Peace and Tranquillity between the said Provinces, and for prevent- ing any the like Disturbances for the future, did therefore agree to lay the same before his Majesty for his Royal Approbation. Co. Off. No. 43. Note, So much of that Agreement as any way relates to the present Point was, fixing between the (meer) Province of Pen- silvania and Mryland a Line for Temporary Jurisdiction, to be exercised in those respective Provinces. And as the Articles of 10 May 1732, had made the North Bounds of Maryland, and the South Bounds of Pensilvania, to be just 15 Miles South of Philadelphia, so, to come as near to it as might be, (but not to confirm it) it was agreed that the provisional and temporary Limits, till the Boundaries should be finally settled, should be, on the East Side of Susquehannah River, 15 Miles and one Quarter South of Philadelphia, and on the West Side of Sus- quehannahRiver, 14 Miles and 3 Quarters South of Philadelphia; but this, to be without Prejudice to either Party; and it was also agreed that the respective Proprietors should receive the Quit-Rents due on their own Sides of that temporary Line; and the Order of Council of 18 Aug. 1737, (which had laid Re- strictions upon Mr. Penns as to their granting out of Lands in the lower Counties) was agreed to be discharged. May 25. By his Majesty's Order in Council made upon reading the said Report, in order to preserve Peace and Tranquillity between the said Provinces, and to prevent any the like Disturbances 504 PENNSYLVANIA AND MARYLAND for the future, his Majesty in Council approved of the said Agreement, entered into between the Proprietors of the said respective Provinces, and ordered that the Proprietors of the said respective Provinces of Maryland and Pensilvania, should cause the said Agreement to be carried into Execution ; whereof the said Proprietors, and all others whom it might concern, were to take notice, and govern themselves accordingly. Co. Off. No. 43. 1740, Jan. 29. By Bargain and Sale enrolled Thomas Jackson re-conveys the Pi'emises which had been mortgaged originally to William Penn for 5000Z. unto John and Thomas Penn and their Heirs. As to one Moiety to the Use of John Penn and his Heirs in Fee, as to one Quarter Part to the Use of Thomas Penn and his Heirs in Fee, and as to the other Quarter Part to the Use of John and Thomas Penn in Fee, but in Trust for Richard Penn, his Heirs and Assigns for ever. Parchment Deed proved by Paris. 1740. A written Map made of Part of Pensilvania, and of the three Lower Counties, &c. extremely material for the understanding of this Case, which Map divers Witnesses, Surveyors in other Provinces as well as in Pensilvania, have been examined and have spoken to, viz. Jacob Hewling, Thomas Miles, Thomas Noxon and Benjamin Eastburn. Map in a large marbled Paper Cover — Of which there is a printed Copy at the Beginning of this Brief (say Book.) 1742, May 28. A Release from Letitia Aubrey (the Daughter of Proprietary William Penn) to the said John, Thomas and Richard Penn of the 10,000 Acres left her by her Father, and of all Claims by Vir- tue of his Will. This was executed in order to make her an unexceptionable Witness, she being examined 3 or 4 Days after. Parchment Deed proved by Paris. Chap. XVII. Containing No Proof, but a Case stated to, and the Opinions of, Sir Clement Wearg, Mr. {now Lord Chief Justice) Willes, and Sir Philip Yorke, (now Lord Chancellor) thereon, relating to the Construction of Lord Baltimore' s Charter, and his Bounds. MARYLAND, in the Grant from King Charles the 1st to the Lord Baltimore, dated the 20th of June 1632, is thus described, viz. "That Part of a Peninsula, lying in the Parts of America, "between the Ocean on the East, and the Bay of Chesopeake on "the West, and divided from the other Part thereol by a Right BOUNDARY QUESTION. 505 "Line, drawn from the Promontory or Cape of Land called "Watkius's Point (seituate in the aforesaid Bay near the River " Wighto) on the West, unto the main Ocean on the East, and, "between thai Bound on the South, unto that Part of Dela- "ware Bay on the North, which lyeth under the 40th Degree of "Northern Latitude from the Equinoctial, 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 "Delaware Bay, in a Right Line, by the Degree aforesaid, unto "the true Meridian of the first Fountain of the River Potow- "meck, aud, from thence, trending towards the South, unto " the farther Bank of the aforesaid River, and following the "West and South side thereof, unto a certain Place called "Cinquake, situated near the Mouth of the said River, where "it falls into the Bay of Chesopeake, and from thence, by a "straight Line, unto the aforesaid Promontory or Place called "Watkins Point." Pensilvania, in the Grant from King Charles the Second to William Penn Esq; dated the 4th of March 1680, is thus de- scribed, viz. "All that Tract or Part of Land in America, "with all the Islands therein contained, as the same is bounded "on the East by Delaware River, from twelve Miles Distance " Northward of Newcastle Town, unto the 43th Degree of North- ern Latitude, if the said River doth extend so far Northward, "but if the said River doth not extend so far Northwards, then, "by the said River so far as it both 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 "43th 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 Be- "ginning of the three and fortieth Degree of Northern Latitude, "and on the South by a Circle drawn at 12 Miles Distance from "Newcastle, Northwards and Westwards, unto the Beginning "of the 40th Degree of Northern Latitude, then, by a straight "Line, Westward, to the Limits of Longitude above-mentioned." The Grant of Maryland begins with that Part of a Peninsula lying between the Ocean on the East (by which most of it is bounded) and Chesopeake Bay on the West: The Extent of the Province Northward is to that Part of Delaware Bay, which lyeth under the 40th Degree of Northern Latitude, and the Northern Boundary of it is a Right Line passing from Dela- ware Bay by the Degree aforesaid. In this Description, Dela- ware Bay is twice mentioned as the Limits of Maryland ; but neither Delaware River, which falls into the Bay of that Name, nor Sasquahannah, the great River which falls into the Head 506 PENNSYLVANIA AND MARYLAND of Chesopeake Bay, are mentioned on any account; but the Peninsula is confined to the Ocean and Bay of Delaware on the East, and Chesopeake Bay on the West, which two Bays, bending in, at their Heads, towards each other, truely from a narrow Isthmus or Neck of Land terminating the Peninsula there. The Geographical Maps of those Parts, extant at the Time of the Grant for Maryland, from whence there are very strong Arguments to prove the Description of that Province was taken, placed 40 Degrees very near to the Head of Chesopeake Bay and the aforesaid Isthmus there. From all which it appears where the Northern Boundary of Maryland was, by the Grant, understood to be placed, viz : at that Isthmus or Northern Part of the Peninsula, near the Heads of the Chesopeake and Delaware Bays, and not far from the Town built on Delaware by the Dutch, since called New- castle. Pensilvania, by the Grant for it, is bounded on the South by a Circle drawn at 12 Miles distant from Newcastle, Northward and Westward, that is, by the Northward and Westward Parts of that Circle, unto the Beginning of the 40th Degree of North- ern Latitude, then by a straight Line, &c. which seems per- fectly to agree with the above-mentioned Bounds of Maryland. In the Years 1681 and 82, great Numbers of sober and indus- trious People, with their Families and Estates, by Favour of that Grant, went over to Pensilvania, and there laid out their Substance in settling themselves, and making large Improve- ments, beginning at the Southern Bounds of the Province on Delaware River, as those Bounds are above described. And about the Year 1683, the Lord Baltimore, then in Mary- land, caused a Line to be run and marked out, 6 or 8 Miles more Northerly than the above-mentioned Bounds, as his North- ern Boundary at that time; Upon which he demanded of the Proprietor of Pensilvania, all the Lands to the Southward of it, as by the Copy of his Commission annexed, appears: and Pensilvania, to avoid Contention, has never, hitherto, made any Grant or Settlement to the Southward of that Line. But in the Year 1714, by a large Astronomical Instrument sent over on purpose, and by another since that time, the Lord Baltimore caused Observations of the Latitude to.be made, by which they extend the Claim of Maryland not only beyond the Peninsula and Isthmus, the Bays of Delaware and Chesopeake, and the Line run by the present Lord Baltimore's Ancestor, but, passing the Isthmus, they carry it up the Rivers Delaware and Sasquahannah (which exceedingly diverge in their Courses) so far as to take in the most valuable Improvements of all Pen- BOUNDARY QUESTION. 507 silvania. alledging that the true Position of the 40th Degree will fall somewhat above the Town of Philadelphia, and that they are not to be confined to the Description of the Peninsula and Bay of Delaware, tho' these are visible Places on the Earth, which may always be certainly known, while Astronomical Observations are always subject to be controverted ; but that their Grant will extend as far as the said Latitude of 40, where ever that shall be found to fall, by Observations skilfully taken. Now, allowing that what is most commonly understood by the 40th Degree, should, by more accurate Observations at this time, be found to reach more Northerly than was supposed by the respective Grants. Quoere, Whether the Lord Baltimore has, or can claim, a Right to any Lands lying to the Northward of the Peninsula, and of the Bays of Delaware and Chesopeake, and beyond the Bounds, as understood at the time of his Grant, within the Grant of Pensilvania, now settled above 40 Years? This Question depends upon the Intent of the King, with re- gard to the Boundaries of Maryland, and it seems to me, by the Boundaries described in the Charter, that the King intended Maryland should not extend North beyond Delaware Bay, which was then thought to reach to the 40th Degree of Northern Lati- tude, and so described by the Charts of those Times; and tho', upon a more exact Observation, it shall be discovered that the Bay don't reach so far North, yet, I apprehend, the North Part of tli3 Bay was intended to be the North Boundary of Maryland : This is confirmed by the subsequent Grant of Pensilvania, and by the Line drawn by the Ancestors of the Lord Baltimore. C. Wearg, 11 April, 1724. I am of opinion, that Lord Baltimore has no Right to any Lands lying Northwards of the Isthmus of the Peninsula, beyond the Bays of Delaware and Chesopeake : The Limits of Mary- land are, by the Grant of King Charles the First, plainly fixed there; And by the subsequent Grant to Mr. Penn by King Charles the Second, 'Tis likewise manifest, that Pensilvania was to extend as far Southward as the Beginning of the said Isthmus and Bays, except only that little Compass of Ground round about Newcastle. The Alteration of the Latitude, which gave occasion for this Dispute, seems to me to be of no consequence at all, since the Latitude was mentioned in Lord Baltimore's Grant for no other purpose but to describe that Tract of Land which was then esteemed to lie under the 40th Degree of Lati- tude. To ascertain the Bounds, therefore, it must be con- sidered where the 40th Degree of Latitude was fixed at the time of the said Grant, and tho' that appears to be mistaken 508 PENNSYLVANIA AND MARYLAND by some latter Calculation, the Case will not be altered there- by, since that Tract of Land which, at the time of the said Grant, was esteemed to be in that Degree of Latitude and not any Point in the Heavens, was to be the Mark of the Boundary betwixt Pensilvania and Mai y land; besides, as neither of the Rivers of Delaware or Sasquehannah are mentioned in Lord Baltimore's Grant, and as it expressly appears by that Grant, that Maryland was not to extend Northwards beyond the Isth- mus of the Peninsula, for those Reasons, likewise, 'tis plain to a Demonstration that there is no colour for extending the Bounds of Maryland Northwards, as Lord Baltimore endeavours to do. J. Willes, 28 Feb. 1733. I am of opinion, that the Boundaries described in the Lord Baltimore's Grant, must now be understood in the same man- ner as they were at the time of the making thereof, and con- sequently, that in case the Extent of Maryland to the North should be taken to be to the 40th Degree of Northern Latitude, yet, that 40th Degree must be taken to be according to the Calculation allowed at that time, and as it was then laid down in Maps and Charts, even tho'' that Calculation was really erroneous. A.nd what the rather convinces me that Lord Bal- timore can claim nothing to the Northward of the Peninsula is, that the Description is not, to the 40th Degree of the North- ern Latitude, but to that Part of Delaware Bay which lies under the 40th Degree of Northern Latitude. Now, if Delaware Bay be rightly laid down in the Plans laid before me, no Part of it comes near to that Line, where, by their late Observations they would fix the 40th Degree of Northern Latitude, and therefore that could not be the Northern Boundary intended by the Grant. P. Yorke, 23 May, 1724. We shall find some trifling Surveyors Dependents on the Lord Baltimore taking upon them to expound the King's Charter, very badly as Lawyers, and if possible worse as Mathematicians, by and by. Against whose Opinions the foregoing will abund- antly serve. And now we come to the Depositions of Witnesses on both sides. DEPOSITIONS FOR THE PLAINTIFFS, WITH SOME OB- SERVATIONS THEREON. NOTE, The Proofs being abundantly long, the common Proof of the Execution of Deeds, or of Copys of Papers from the Chapel of the Rolls, Council Office, or Board of Trade, &c. which are not attended with some special Circumstances, are BOUNDARY QUESTION. 509 omitted here; having a Scheme in my Hand, ready to turn at the Hearing, instantly to the Proof of any such Papers as those, if demanded. Note, As often as we quote the Depositions of *John Anderson, *John Graretson, *James Steel, who was one of our Commissioners to execute the Articles, and our Receiver General of Quit-Rents. *Wooman Stoekley, *William Till, *William Waples, there is this Mark* set before their Names, which is, to denote that the Defendant has cross examined them as to their being interested only, which they have so far acknowledged, as to say they hold Lands in the three Lower Counties, under the Plaintiffs; altho' some of them say, they don't believe themselves concerned in the Event of the Cause, notwithstanding that; their cross Examinations are at thevery Beginning of the Brief of the Defendant's Depositions, where you'll see how far their Concern leaves them good Witnesses, or not. If you think them all exceptionable, we have other Witnesses, to the Point they speak to; and, rather than fail, the Defendant, himself, has proved every Fact for us. The Person we would least choose to lose is James Steel, who is one of our Witnesses that pi'ove our receiving of Quit-Rents, tho' that also the Defendant has likewise proved for us. 1ST BRANCH, relating to the first Discovery of the Peninsula, and the first Maps publish'd before the Year 1632, and how many several Editions of Captain Smith's Book had been publish'd before that Year. Benjamin Eastbum, {Surveyor General of Pensilvania, aged 44. [Lib. C. fo. 678. Int. 2. fo. 769.] Is acquainted with some Parts of the Peninsula, which shoots out, Southerly from the Maiu Land or Continent of America into the Ocean, and which lies between West New Jersey and Chesopeak Bay. Became acquainted with the Eastern Parts thereof, lying on Delaware Bay and River, and Part of the Ocean, from Certificates and Drafts of Sur- veys of Lands made therein under the Pensilvania Proprie- tors; which Certificates and Drafts were returned into the Surveyor General's Office in Pensilvania, which Office he has enjoyed for seven Years past: Became acquainted with the Northern Parts of the said Peninsula by travelling and mak- ing Personal Observations there. Has acquired his Knowledge 510 PENNSYLVANIA AND MARYLAND of the other Parts of said Peninsula, by reading and studying Books and Maps of Geography, and Accounts of Voyages and Discovers of Lands and Territories in America. Such Maps, Books and Accounts have been his Study for about twenty Years. That in 1624, Captain John Smith published a Book, contain- ing an Account of said Peninsula, and several adjacent parts, with a Map describing the same. Which Book and Map he believes, was the first particular Account and Description of those Parts, published by any Englisnman. Has look'd on that printed Book, exhibited to him, the same is the Book by him before mentioned, and which he believes, is well known amongst Historians, Geographers and Mathematicians. Like- wise believes that the Map between Fol. 40. and 41. of that B«ok, in which Map there are these Words, (Discovered and described by Captain John Smith 1606.) is well known to His- torians, Geographers and Mathematicians. And the said Book and Map are generally reputed and esteemed to be published by said Smith in or about 1624. Says he neither knows nor has heard, that any other Book or Map, describing the Parts afore- said, were printed or published, by any Englishman, before the Month of June 1632. James Logan, aged 66. {Lib. B. fol. 76. Int. 2. fol. 78.] Is well acquainted with the Peninsula, lying between West New Jersey and Chesopeak Bay ; became acquainted with it, by ocular Views, by Maps, and by reading Books of Geography and His- tory. Has consulted and considered Maps, Books of Geography and History, and Accounts of Voyages, at times for 30 Years past. From his Reading and Observation believes Captain John Smith, the Author of Smith's History of Virginia, printed in London 1624, was the first Englishman that printed any Map and Account of the said Peninsula, and the Territories adjacent thereto. That he has look'd on the said Book, now produced, and believes it is well known amongst Historians, Geographers and Mathematicians, and was the Foundation of Beverly's His- tory of Virginia. Has viewed the Map of Virginia, between Fol. 40. and 41. of the said Book, in which Map it's said that Vir- ginia was discovered and described by the said Captain Smith in 1606. And believes the said Map is likewise well known amongst Histurians, Geographers and Mathematicians; and which Book and Map he believes, are generally esteemed to be publish'd by Captain Smith, about the Time in the Title-Page mentioned; and are, as he believes, of unquestionable Credit amongst all learned Men; has neither known, seen, or been acquainted with, any other printed History, Map, or Descrip- tion of the said Peninsula, done, or reputed to be done, by any BOUNDARY QUESTION. 511 Englishman or Foreigner, that were extant so early as June 1682. And believes there is not any other, because, on diligent Search of Mercator's, Jansen's, and Bleau's Atlas, he could never discover any. Ferd. John Paris, {Lib. A. fol. 195. Int. 2d. fol 312.] Has diligently enquired after the most ancient printed Map of Virginia, or the Places in Question, that had been made, or was reputed to have been made, by any Englishman; and the Account he obtained was, that Captain Smith's Account of Virginia, and his Map thereof, were the first and best Accounts of the Discovery, and his Map the earliest printed Map, of those Parts, that were ever printed by any English- man; whereupon, made very diligent Search, to find out as many ancient Editions thereof, as he could ; and found the said Map, in some printed Accounts, said to be of Captain Smith's and bearing Date severally in the Years 1612, 1624, and 1625. Saith, the Quarto bound Book produced and let- tered (West-Indies B.) he found in a Collection of Books, which he is informed and believes, was heretofore given by Dr. White Kennet, Bishop of Peterborough deceased, to the Society for the Propagation of the Gospel in foreign Parts, for an American Library for the said Society ; and out of which Collection or Library he borrowed that Quarto Book, which contains sundry printed Tracts, relating to several Parts of the Continent of America, bound up together; the first whereof is entitled, A Map of Virginia, with a Description of the Country, &c. written by Captain Smith, some time Governor of the Country, and mentions to have been printed at Oxford by Joseph Barnes 1612; at the End of which Tract, in the said Quarto bound Book, there is a printed Map of Virginia, which is therein said to be discovered and described by Captain John Smith: saith that in his Searches, he, at several Booksellers, met with a thin Folio Edition of a Work, which appeared to this Deponent to be an ancient Book, and which was entitled, The General History of Virginia, New England, &c. also the Maps and Descriptions of all those Countries, &c. divided into 6 Books, by Captain John Smith, sometimes. Governour in those Countries, &c. and Admiral of New England. London printed for Michael Sparkes 1624 ; before the Page (41) of which thin Folio, there is the like printed Map of Virginia (to this De- ponent's belief) with that in the said before mentioned Quarto Book of 1612; and easily finding many printed Copies of the said thin folio Book and Map, did, therefore buy two (if not three) of the same, one of which is now produced, having the Letters J. S. stamo'd into the Cover. And also found out 512 PENNSYLVANIA AND MARYLAND another very large Collection of Discoveries and Voyages, con- tained in a Work said to be printed in 1625; which consists of several thick Volumes in Folio, and is commonly called Purchas Pilgrims: in one Volume of which last mentioned Work now produced and lettered (Purchas Pilgrims Vol. IV. ) between Pages 1690 and 1691, another liKe printed Copy of the said Captain Smith's Map, appears to this Deponent to be fixed ; and which Map in Purchas's, and in Captain Smith's thin Folio History, this Deponent believes are both printed off from one Plate which believes not only from the great Similitude of the two Copys, but also from an Observation upon both the said Maps which he particularly mentions, besides which three Editions of 1612, 1624, and 1625, the Deponent upon his best Observation, believes that the Book in Ogylby's of 1671, (before mentioned by and produced to the Deponent) does about Fol. 192, contain a Map of New Virginia, likewise drawn from, and nearly cor- respondent to, the said Smith's Maps, in the Out-Lines of the Country, and Places therein contained. 2D BRANCH to prove my Lord Baltimore's now printed Book and Map, and Description of Maryland, and how far he then claimed; published in the Year 1635, within three Years after the Date of his Charter, and soon after he had landed in, taken Possession of, and settled his Province of Mary- land. Dr. Thomas Stack. {Lib. A. Fol. 41. Int. 45. Fol. 42.] That he has looked upon the Book or Collection of Tracts, bound up all together, now produced, which is a Volume of about 19 various Tracts, on different Subjects, several of which regard our Foreign Plantations; and it is mark' d, at the Top of the first Leaf within the Cover C. 199, which is a Mark of Sir Hans Sloane's Library, to which the said produced Volume answers in his Catalogue; the same Page also contains these Words (Hans Sloane) written by himself, as he acknowledged to this Deponent : and this Deponent is well assured. Saith that Sir Hans Sloane is the present Owner or Proprietor of the said Volume, and which he can depose, because that on Tues- day last, he intrusted the Deponent with the said Volume, out of his Library, in order to be examin'd to in this Cause, on the Deponent's giving him a Receipt for the return thereof to him again, and also, because, that, some Years ago, he intrusted this Deponent therewith, in order to be produced at the Board of Trade. And further for that, in examining Sir Hans Sloane's Library, in the Year 1733, soon after he appointed the Deponent BOUNDARY QUESTION. 513 his Librarian the Deponent then took Notice of the said pro- duced Volume. And verily believes Sir Hans Sloane has been in Possession of the said Volume between 40 and 50 Years, for that very particular Tract contained therein is entered in the first Volume of his Catalogue, in his own Hand Writing, which first Volume of his Catalogue, as far as is written by himself, does not to the best of the Deponent's Remembrance, contain any ooe Book or Tract publish'd since the Year 1699 ; and there- fore believed that he was in Possession of all the Books, entered by himself in the said first Volume in or before the said Year 1699 ; and saith that Sir Hans Sloane has been collecting ancient and curious Books and Tracts ever since 1682, at least, as he has often told the Deponent and the Deponent is well assured to be true : for the Deponent has often taken Notice of several Books in his Library, in which he mark'd the Date of buying and pur casing them to be 1682, written with his own Hand, in the said respective Books ; and saith that Sir Hans Sloane has a very large Library, and in particular, a vast Collection of small Tracts, commonly called Pamphlets ; and the Deponent observed whilst he took Care of Sir Hans Sloane's Library, that he had been from the said Year 1682, and then was extremely curious in collecting every thing, especially Old Tracts published, or even in Manuscript, ralating to our Plantations and Settle- ments abroad, Voyages and Travels, and many other things ; on which said particular Subject does not remember that Sir Hans ever omitted to purchase, or endeavoured to purchase, any Book or Tract, especially Old ones, that a most dilligent enquiry and examination, or perusal of Catalogues of Books to be sold could intimate to him ; saith the precise Time when the said Sir Hans Sloane became first possessed of the said pro duced Volume does not appear by any List, Catalogue or Ac- count kept in his Library, but firmly believes Sir Hans has been in Possession thereof between 40 and 50 Years [or the Reasons above mentioned. Saith that he hath look'd upon that particular Tract, bound up in the said produced Volume, which purports to contain (a Relation of Maryland, together with a Map of the Country, the Conditions of Plantation, his Majesty's Charter to Lord Baltimore translated into English) and bearing for its Date September the 8th, Anno Dom. 1635. And takes himself to be pretty well acquainted with Books, having had Academical Education, and always loved Books, and having taken Care of Sir Hans Sloane's Library about 7 Years; which Library contains near 40,000 Volumes, among which are an immense Number of small Tracts, collected and bound together in Volumes, for their Preservation: and he 33— Vol. XV. 514 PENNSYLVANIA AND MARYLAND also, having at present, and for some time past, the Care of Dr. Mead's Library, and having about 2500 Volumes in his own Study or Library. And saith it is no difficult matter for a Person conversant with Books, to distinguish an Old Book, or a Book printed above a IOC Years since, from a New Book ; the Letter or Type, the Paper , often the Paper-Mark, and in short the whole Face or Appearance of the Book or Tract, are very good Grounds to make such a Distinction. And saith that he saw and considered the particular Tract of the said produced Book herein above-mentioned, upon the Occasion here after mentioned, (to wit) about 7 or 8 Years ago, a Gentleman un- known to this Deponent, who called himself Mr. Penn, came to Sir Hans Sloane, and desired a Sight of the said particular Tract: whereupon the Deponent, by the said Sir Hans Sloane's Direction (to whom the Deponent was then Librarian) look'd for the Entry of the said Tract in his Catalogue, (the usual way of finding Books in great Libraries) and having found it, the Deponent brought the said produced Volume which con- tains it, to the said Sir Hans, who in this Deponent's Presence shewed the said particular Tract, and the Map contained therein, to Mr. Penn ; and the said Mr. Penn desired the Loan of it, for a Day on any Security, which Sir Hans did not agree to; but the said Mr. Penn urging that it would be a great Detriment to him, in a Cause depending between him and the Lord Baltimore, if the said produced Book could not be pro- duced that same Day at the Board of Trade, the said Sir Hans said, he would intrust the Deponent with it, for that purpose, on Condition that the Deponent would not part with it out of his Sight or Possession, but barely produce it at the said Board of Trade, if required ; and therefore he desired the Deponent to take the said produced Book, and carry it directly to the said Board of Trade and bring it back again; which the De- ponent accordingly did; and after the Deponent's return home to the said Sir Hans, this Deponent carefully examined and considered the said Tract in particular, and really believes that the said Tract is a genuine one, printed and published at the Time of its Date, (to wit) September the 8th 1635, and not a new or modern Tract; and that the Motive of the said Sir Hans Sloane, in procuring the said particular Tract was, his extreme Curiosity in purchasing every thing published or even in Manuscript, relating to our Plantations abroad ; and really believes Sir Bans had no private View in procuring the said Tract, nor any View therein than that of making his Col- lection of Books and Tracts on the Subjects before-mentioned as compleate as he possibly could, and consequently, no View of deceiving or imposing on any Person whatsoever. And BOUNDARY QUESTION. 515 saith that the said Tract has an Engraved and Printed Map inserted, between Pages 12 and 13, and bound up with it, which Map it had at the Time this Deponent examined it, as above-mentioned. And saith the said Map hath these Words (Hans Sloane) written on the Back of it, which the said Sir Hans told the Deponent he formerly wrote on it, to the best of his Remembrance, upon occasion of lending the said pro- duced Volume out of his Library. And saith that upon a strict Examination, and impartial Observation, on the said Map, he does verily believe it to be a genuine and ancient Map, cotem- porary with the said Tract, to be intended for the said Tract, and to be the very identical Map expressed in the Title-Page of the said Tract. And saith he hath looked upon a small printed Tract, now likewise produced, which is not complete or per- fect at the latter end thereof; and which is marked on the Out- side (Maryland 1635.) and he hath also looked upon the written Map of Maryland, contained between the 12th and 13th Pages thereof; and saith that he hath very carefully and diligently examined and compared the said last mentioned single Tract (so far as it goes) with the above-mentioned particular Tract in the aforesaid produced Volume of Tracts, and finds they very exactly and minutely agree together, except that the Title- Page in the said single Tract having been partly wore or tore off, and the Defect thereof supplied by Writing, this Deponent observes that the Word (London) which is printed underneath the Word (Dolphin ) in the said produced Volume, is omitted to be copied in the said single Tract; and really believes that the said two Tracts are equally genuine, so far as they are per- fect ; and that they are two Copies of the same orginal Impres- sion, of the same Tract : for this Deponent finds an exact Agree- ment or Sameness, in the Frame of the Letter-Press, the Letter or Type, the Lines of each Page, the Orthography, the Punctua- tion, the Errors, some bad Types, and the Mark or Alphabet of the Sheets at the Bottom of the Pages. And saith he hath com- pared and examined the written Map, contained in the said sing-le Tract, with the printed Map contained in the said pro- duced Collection of Tracts, and believes the said written Map to be a good Copy of the said printed one. And this Deponent has observed that there is, in both the said Maps, a Place called Chesopeak Bay, and each of the said Maps contain a prick'd or dotted strait Line, running quite thro* the said Maps, from East to West, at the Figure (40) which Figure (40) is at the East- side or Border of the said Maps; and the said prickt or dotted straight Line, in both the said printed and written Maps, runs in the same place, or extremely near, in each of the said re- spective Maps; and the said prickt or dotted streight Line runs 516 PENNSYLVANIA AND MARYLAND close in one part thereof, to the Head of Chesopeak Bay, in both the said printed and written Maps. Note — The Use of establishing this Book and Map printed by Lord Baltimore himself, so early as in 1635, to invite Persons to settle his Country, in three Years after it was granted to him, is to shew that then he laid down the 40th Degree compleat to touch or make a Tangent to the Head of Chesapeak Bay; whereas he has since from time to time encroacht, and we have now granted to him ; beyond every of his Encroachments. Ferd. John Paris {Lib. A. fol. 195. Int. 27. fol. 322.] That he hath diligently enquired after the most ancient printed Maps and Accounts of the particular Province of Mary- land, but hath not been able to discover more than two such an- tient printed Maps and Accounts which particularly and profes- sedly treat of Maryland, as a particular Province: The one of which was, and is a small Quarto Book called or said to be a Re- lation of Maryland, together with a Map of the Country, the Con- ditions of Plantation, his Majesty's Charter to the Lord Balti- more translated into English, &c. and bearing for the Date of such Book the 8th of September, Anno Domini 1635, in which was a Map of Maryland and the other was the said Book of Ogilby's of 1671 before spoken of by, and produced to this De- ponent; In which, last mentioned Book, at about Folio 183, there appeared to this Deponent to be a new Description of Maryland, together with a Map of that Province very nearly agreeing in the Out Lines (according to the Deponent's best Judgment and Belief) with that in the said small Book of 1635; out con- taining more and other Names, and different Names, of Places from those contained in the said other Book and Map of 1635; Bat, besides such printed Maps and Accounts, the Deponent found out, at the Board of Trade, a written Map of Maryland, which the Deponent believes and apprehends, to have been a Map of some Antiquity, and before any Grant was made from the Crown of the Province of Pensilvania because, that the De- ponent does not, to his apprehension, perceive any Notice taken therein of any such Province as Pensilvania. BOUNDARY QUESTION. 517 3D BRANCH, containing the strongest Proof uncontradicted, that the Nature of the Case can admit of, that there never was any real Order of Council of 4th April 1688, about William Clayborn and the Isle of Kent ; but that such Order was made or invented, by Lord Baltimore in the Year 1685. Ferd. John Paris [Lib. A. fol. 195. Int. 23. fol. 292.] That he hath perused the Paper produced, markt Botra No 4, and the same bears Date the 4th Day oi April 1638, and, according to the Terms and Expressions therein, the same appears to be of the Purport of a Report or Order, of the Privy Council, or of some Lords or Committee thereof, upon some Petition of one William Clayborne relating to the Isle of Kent; and the De- ponent got the said produced Copy from the Office of the Lords Commissioners for Trade, and the Reason and Occasion of look- ing after, and getting out, such produced Copy were, that the Deponent found that Mention was made of some such Paper, in a Petition presented to his Majesty, in the Name of the De- fendant on 8th of August 1734, and also in a Report made by the Lords for Trade upon such Petition, on 16th January 1734; wherefore the Deponent was desirous to see what such Paper was? And saith that the Original Paper at the Board of Trade, (from which such now produced Paper was copied) and with which the Deponent examined the same, appeared to be bound up in a Book, not by way of regular Entry of any Papers of the Year 1638, or about that time, but along with a miscella. neous Collection of many other Papers of many different Kinds, Sizes and Dates relating to many different Matters; and such Original Paper did not appear to this Deponent to have then, or to have ever had any Sign, Seal or Mark of Attestation, whatsoever to the same, nor to carry with it any Degree of Authority or Authenticity, to the Deponent's Belief; and as the Deponent conceived that great stress was laid (in the said Petition in 1734) upon such Paper, and as the Deponent discovered some Entries (in or about 1685) that seemed (to this Deponent's Belief) very much to question the Authority of such Paper, the Deponent therefore made Enquiry at the Privy Council Office, whether the Privy Council Registers or Journals of the Year 1638 were in Being or not? Upon which Enquiry being informed that the Council Registers of that Year were in Being, the Deponent did search, and look into the same, and did there find many Acts, Proceedings or Orders of the Privy Council in the said Year 1638. and several of Dates very near the Day, (if not upon the very Day) that the produced Copy bears Date, but after diligent Search made by him could find no Entry there, of any Order, of any such Date as the said 518 PENNSYLVANIA AND MARYLAND produced Copy, or of any other Date, which related to the said William Clayborn and the said Isle of Kent, of any like Pur- port with the said Copy now produced. Samuel Gellibrand {Lib. A. fol. 91. Int. 5. fol. 102.] Has lookt upon the Exhibit Botra No 4. which purports to be a Copy of Report of the Commissioners for Foreign Plantations upon Clayborne's Petition against Lord Baltimore dated 4th April 1638. Says he never, at any time, saw an Original of the said Paper under any Seal ; nor any Copy of it which purported to be signed or attested as an authentiok Copy, by any Clerk of the Council. Nor is the Paper, from which the produced Copy was copied, entred up in any Original Journal or Register Book of the Acts and Orders of the Committee of Council for Trade and Plantations, of the Year 1638. or about that time, as he most assuredly believes; For he has made diligent Search, in the said Journals and Registers, of and about that Year, and can find no Entry thereof. Says the Paper, from which the produced Copy was made, remains bound up in one of the old Books in the Plantation Office, with many other Papers, such as Petitions. Orders, Letters, and the like, some whereof are Originals, and others only Copies, which were, as he assuredly believes, at various times, during the Space of several Years, before the Affairs of Trade and Plantations were put into Commission as aforesaid, presented to, laid before, or left with the said Committee for Trade, or their Secretary or other Offi- cers. Says the said Book is not a Book of regular Entries, in any regular Series, but contains miscellaneously, many different Papers relating to many different Matters and Persons, and of many different Dates; and the Papers bound up therein are not all of a size, but some are small Papers, others large, some of them contain Part of a Sheet only, others several Sheets. The 3 Papers contained therein, next preceeding that from whence this Copy was made are dated 18th August 1685, 13th October 1683, and 3 July 1663; and the three Papers, next following it, are dated 4th April 1638, 12th May 1684. and 20th April 1685. Says it has been the Custom and Usage in the said Office, to bind up, in Books, such Papers, and Copies of Papers, as Persons have presented to, or laid before, or left with the Committee, or Lords Commissioners for Trade, or their Secretary; And, in case any Person having Business depending before the said Lords Commissioners should at this time, present to them any Paper as a Copy of an Order of Council of some old Date, and should leave it before them, such Copy would, according to the Course and Usage of the said Office, be bound up into a Book, when there should be Papers enough to make a Volume of, digested BOUNDARY QUESTION. 519 under their respective and distinct Heads and Titles in Order of Time as received and delivered, which was not as he observed so regularly done before the Affairs of Trade were- put under Commission as aforesaid. Says he has lately perused and read the Minutes and Records of 8th and 17th October 1685 of the Committee for Trade and Plantations, relating to a Matter then in Contest between Lord Baltimore and Mr. Penn, whereby it appears that they attended the Board on both those Days, and that on the 17th of October the Lord Baltimore had undertaken to procui'e an authentick Copy of a Report made by the Com- missioners for Foreign Plantations on 4th April 1738, touching the Differences between Lord Baltimore's Predecessors and William Cleyburne about the Isle of Kent ; From whence it seems probable that the Paper, from which this Copy was made, was first offered to the said Committee by Lord Baltimore in October 1685. And says the produced is a true Copy of that Paper in the said Book. Charles Dickenson [Lib. A. fol 19. Int. 38. fol. 27.] That he is Office- Keeper and Servant to the Council Chamber of his Majesty's Privy Council, and has been so ten Years or upwards; and saith that the Council Registers of the Acts, Orders, Reports, and Proceedings of the Privy Council, and of the Lords or Committee of Privy Council, of the Year 1638. are in Being, in the said Office. And saith that he hath carefully examined the Council Registers, in order to find out the Entry of an Order or Report made the 4th of April 1783, upon the Petition of William Clayborne relating to the Isle of Kent; and saith that he did find several Entries in the Council Regis- ters, wherein the Orders and other Acts of the said Year 1638 are entred, of the very Date of the 4th of April 1683, relating to other different Matters, but this Deponent could not nor did find any entry therein of the said 4th April 1638 of any Re- port or Order of the Lords or Committee of Privy Council which related to William Clayborne and the Isle of Kent ; though he carefully searcht in the said Council Registers for the same. What adds to this Proof is, that the pretended Order of 4th April mentions a supposed prior Reference of Clay- borne's Petition to that Committee. But there is no such Reference neither to be found, so that it's manifest the whole is an Invention. 520 PENNSYLVANIA AND MARYLAND 4TH BRANCH, shewing that the Swedes, the Dutch, and the Duke of York, successively, held the Lands, now called the three Lower Counties, under the Names of New Sweden, New Netherland, South River, Delaware, Sandhook, from the Year 1630 downwards. That the principal Seat of Govern- ment was then at New York. And Lord Baltimore's An- cestors never possest— also of the Conquest from the Dutch in 1664. John Rambo of New Jersey aged 79[Lib. B. fol.36. Int. 27. fol. 37.] Knows the Province of Pensilvania, is acquainted with New- castle, and has oeen at the Place commonly called the Whore- kills, but is not otherwise acquainted with the three Lower Counties. Knew the Province before it was called Pensilvania, being- upwards of 70 Years ago [before 1670] Has heard from his Father and other old People, that the said Countries wera origi- nally settled by the Dutch and Swedes, but by which of them first does not remember to have heard. But knows that the same Countyies have been since under the Government of the English. Has heard that the said Countries were first called New Swedeland by the Swedes, And knows that the same Countries were, afterwards called South River by the Dutch, and sometimes were called Delaware River. And that the Pro- vince of Pensilvania has been called by that Name, ever since William Penn's being Proprietor thereof; but by what Names the said three Lower Counties were since severally called knows not. Knows the Bay and River of Delaware, which as he has heard was formerly called South River, but, after the coming of the English wera called Delaware River and Bay. Has been informed by the Sailors, that, when they come in from Sea and arrive at Bombay Hook, anciently called Bombkeys hook, they suppose and take themselves to be at the Head or End of the Bay, at the Beginning or Entrance of the River. That New- castle was formerly called Sandhook by the Dutch, and, since the same has been in the Hands of the English, has been called New- castle, and does not know or remember to have heard the same called by any other Names. Does not know nor has heard, that the said three lower Counties were anciently divided into Counties, but has heard that the Creek at Lewis town, near the Capes, was called the Whorekills. Does not know, nor ever heard, that the said Province of Pensilvania, and the three lower Counties or any part thereof, were ever under the Government of Lord Baltimore. William Peterson of New Jersey aged 92. [Lib. B. fol. 24. Int. 27. fol. 25. ] Has known the Province of Pensilvania and the Land between BOUNDARY QUESTION. 521 Newcastle and Wliorekill, formerly called Sandhook, a long time, and before William Penn came into the Country; but can't ascertain the exact Time of his first Knowledge, nor does he know that any part of the Land between Newcastle and Wliorekill was ever called Kent; when he came into the Coun- try the said Province, and the Land there called Sandhook were in Possession of tho Dutch, under the Government of the Province now called New York, at that time called Manhadas. And has heard from the Swedes, that the said Province and Land were possest, by People of their Nation, before the Pos- session of the Dutch. That the said Province and Land were formerly called New-Netherland by the Dutch, but after the Arrival of William Penn here they were called Pensilvaniaand Newcastle. He knows the Bay or River of Delaware, and never heard it called from the Mouth between Cape May and the Whorekill, where it enters into the Sea, upwards, by any other Name than the Bay or River. Has never heard, or known that the Province of Pensilvania or the Counties of Newcastle, Kent and Sussex, or any of them, have been under the Government of Lord Baltimore Proprietor of Maryland. Samuel Preston [Lib. B. fol. 312. Int. 27. fol. 336.] Has heard and believes that the Bay and River were formerly under the Government of the Dutch, and were then called South River by the Dutch, and also in some old Dutch Maps which he has seen. Has also heard that the Swedes had form- erly some Pretensions in those Parts. Thomas Noxon aged 40. [Lib. C. fol. 488. Int. 27. fol. 502.] Has heard from many old Dutch People, Inhabitants of the City of New York, and of ancient Dutch, Swedes, and other anci- ent Inhabitants of the County of Newcastle, and believes, that all the Lands on the West side of Delaware River and Bay, from the Ocean up to about the Falls of Delaware, were under the Dutch Government, whose principal Seat was at the said City of New York formerly called Manhatans; their whole Pos- sessions in those Parts being at that time called New Nether- lands. Says he is the more confirmed in this Belief became it ap- pears from the Dutch Records at the City of New York, that the said Lands on the West side of Delaware were under the Govern- ment of the Dutch from 1630 to 1664. By which Records it also appears that about 1637 the Swedes made Encroachments upon the Dutch Settlements, on the West side of Delaware River afore- said, which produced many Quarrels and Differences between the Dutch and Swedes that continued till near or about 1647 or 1648. About which time, it also appears by the said Records, that the Swedes, who then continued within the Claim of the 522 PENNSYLVANIA AND MARYLAND Dutch, btcame subject to the Dutch Government. And that, by the said Records, it further appears that the Dutch Posses- sion and Government continued^ till 1664; at which time the said Lauds on Delaware were reduced to the Subjection of the King of Great Britain. Has never heard or believes that Pen- silvania and the three lower Counties were ever under the Gov- ernment of the Proprietor of Maryland, but has heard, by ancient Inhabitants of the said Counties, that some People of Maryland burnt and destroyed the Town of Lewes, formerly called Whorekill, the Truth whereof appears more plainly to this Deponent from a Letter, upon Record in the City of New York, which appears to be sent from Francis Lovelace, Gov- ernor of New York, to the Governor of Maryland, complaining that one Jones, with some others, as dissolute as himself, came to the Whorekills, rifled the Houses of the Inhabitants, and used them very ill ; and likewise demanding satisfaction for said Injuries. 5TH BRANCH, proving where the true Susquehannah Indian Fort formerly stood, which is mentioned in some of the Proceedings in 1680. James Hendricks aged 73. [Lib. C. fol. 743. Int. 131 fol. 744. and 132. fol. 748] Knows Part of Cecil County in Maryland, and Lancaster, Ches- ter, and Philadelphia Counties in Pensilvania. Does not know the Bay of Chesapeak, but knows the River of Susquehannah, Part of which lies in Maryland, and Part in Pensilvania. Has seen Indian Forts and Indian Towns ; apprehends the Difference between an Indian Fort and Town is, that the first is an House or Number of Houses surrounded by Stakes of Wood and a Bank of Earth cast up, and the other is only a Number of Cabbins, built near each other, without being so surrounded. Says that he, near fifty Years ago, saw about 40 Indian Cabbins or Houses upon the upper Point of Land which forms the Mouth of Octorara Creek that runs into Susquehannah River aforesaid, within about Half a Mile of the said Creek and River; which Town had Stakes of Wood, and a Bank cast up round it. That the Affirmant was then told, by some of the Indians there re- siding, that they called the same Place Meanock, which they said, in English, signified a Fortification or Fortified Town. Has also seen the Ruins of another such Fortified Town, on the East side of Susquehannah River aforesaid, opposite to a Place where one Thomas Cresap lately dwelt. That the Land there, on both sides of the said River, was formerly Conajocula. BOUNDARY QUESTION. 523 Further says that the Indians, who lived in the said last men- tioned Town before he saw the same, were moved from thence, lower down (to) the said River to Conestoga. [Int. 132. fol. 748] Has known the said River Susquehannah, near fifty Years, and first became acquainted with it. by searching thereabout for Alines. That he knows the Place on the said River called Con estoga, and that near Susquehannah, near fifty Years, and first became acquainted with it, by searching thereabout for Mines. That he knows the Place on the said River called Conestoga, and that near 50 Years ago [that must be 1690 or after] he and another Person travelled to Conestoga, and this Affirmant un- derstanding the Indian Language, enquired of several of the Indians there, whether any Christian People had ever travelled so high up the said River as Conestoga aforesaid? and was in- formed by them that there had not, but that this Affirmant and his said Companion were the first ; for which reason this Affirmant does believe no Christian People had ever, before that time, travelled so high up the said River. Two Reasons why the Upper Fort could not be the Susque- hannah Fort, mentioned as agreed upon before the Lords of the Council in 1680. 1st, No Christain had ever been up so high in ten or twelve Years after that time, to know that there was any Fort there. 2d, The Land there was not Susquehannah Land, it was Conajocula, which is the Name of another Nation of Indians. Ergo the lower Fort, at the Mouth of Octorara Creek was the Fort mentioned, before the Lords of the Council in 1680. And that precisely falls in, and coincides, with my Lord Bal- timore's running his Line presently after, viz. in 1683, from the Place where that Fort was, viz. the Mouth of Octorara Creek. As to which Fort our Evidence continues very strong and clear. John Hans Steel-man [Lib. C. fol. 749. Int. 131, fol. 750. ] Indian Trader, aged 85, Is acquainted with the greatest Part of Maryland and Pensilvania, and is well acquainted with the Bay of Chesopeak and Susquehannah River, and some part of the said River lies in Maryland, and some part of it in Pensil- vania. Has frequently seen both Indian Towns and In- dian Forts, and says the Difference between an Indian Town and an Indian Fort is, that an Indian Town is a Num- ber of Indian Houses or Cabbins built or set near together, and an Indian Fort is such a Town, fortified or surrounded with a Breast-work of Poles or Stakes of Wood set up, and a 524 PENNSYLVANIA AND MARYLAND Bank of Earth thrown up about them. Says that about forty or fifty Years ago, he saw an Indian Town wherein were Indians then residing, at the Point of Land at the upper side Of, and about Half a Mile from, the Mouth of Octorara Creek, which runs into Susquehannah River aforesaid; And at the side of, or near to, the said Town this Deponent then also saw an In- dian Fort, consisting of a great Number of Poles or Stakes of Wood set up, and a Bank of Earth thrown up about the same, as herein before described, which the said Indians then told this Deponent had been the Indian Fort. Says he also remem- bers that one Jacob Young, did, before or about the same time, shew this Deponent the Ruins of another Indian Fort which stood at about three Quarters of a Mile from the said first men- tioned Fort, and where the said Jacob Young then also shewed this Deponent several dead Mens Bones, and told him that a great Battle had been fought there by the Indians. Elizabeth Murphy aged 43 [Lib. C. fol. 754. Int. 131. fol. 755.] Knows some Parts of Cecil and Baltimore Counties in Mary, land, and some Parts of Lancaster, Chester, and Philadelphia Countiesin Pensilvania, knows the River Susquehannah, but does not know the Bay of Ohesapeak. Says Part of the River Susquehannah lies in Maryland and Part in Pensilvania. Has seen Indian Forts and Indian Towns, and that the Difference between an Indian Town and an Indian Fort is, that the first is inclosed with Wood, by some called Pallisadoes, and Banks of Earth, and that the latter is a Place where their Houses or Cab- bins are built, and they plant their Corn without such Inclosure. Says that upwards of 30 Years ago. she saw a Place on a Point of Land, between the Mouth of Octorara Creek that runs into Sus- quehannah River aforesaid and the said River, near to the Mouth of the said Creek, where, her Father Jonas Erskine, since de- ceased, informed there had formerly been an Indian Fort. That, when she saw the same, there appeared a large Bank cast up round it, and the Tops of the Pallisadoes that had been there appeared to be rotted off, and the Stumps of them re- mained in the Ground. And says that her Father, who lived at the same Place many Years, by the Licence of the Indians, informed her there had been a great Battle fought there, and shewed her the Bones of several Persons buried in the Cliffs of the Rocks, which he said were the Bones of Indians slain in that Battle. That the Indians who had formerly resided at the Place, were removed from thence when she saw it ; and then lived at a small Distance from it. Says that her Father, like- wise, at the same time, said to her this Affirmant, "That you "may remember it, there, over the Creek (pointing to a Place BOUNDARY QUESTION. 526 "over Oetorara Creek aforesaid.) I saw the Lord Baltimore "set his Compass to run the Line." Margaret Allen aged 39 ; [Lib. C. fol. 759. Int. 131. fol. 760.] She knows Susquehannah River, and very well distinguishes between an Indian Fort and Town ; And says that, near 30 Years ago, she lived with her Father Jonas Erskine now deceased, at a Place near the Mouth of Octorara Creek which runs into Susque- hannah River, where the Remains of an ancient Indian Fort, a Bank, and some part of the Loggs with which it had been sur- rounded appeared. That she often heard her said Father, and several Indians, who resided very near the same Place, say that, at the same Place, there had formerly been an Indian Fort. And says that she saw there, great Numbers of human Bones, which her Father informed her, had been slain in many Battles fought there. And that she often, pickt up great Numbers of Stone Arrow Points, and Stone Hatchets there. 6TH BRANCH, Proving by whom the Lower Counties were possest, when Mr. Penn first went thither in 1682, and also the actual Delivery of Seizin to him then. Samuel Hollingsivorth aged 67. [Lib. B. fol. 57. Int. 28. fol. 59.] Has known the Province of Pensilvania and County of New- castle since 1682, but has not been well acquainted with the two lower Counties of Kent and Sussex. Resided in Newcastle County from 1682 to 1701, and then removed to Chester County, where he has resided ever since. First arrived at Newcastle in 1682, and, then, understood from his Father and others, that the Plaintiffs Father was gone down to Maryland to meet Lord Baltimore: and, in a few Days after, saw him return, from thence as 'twas said, in a Riding Habit. At that time there were several Families of Swedes and Dutch, settled upon each side of Christiana Creek as high as the Tide Water flows, and, on the lower side of Brandy- Wine Creek ; But there were few, or no Settlements back in the Woods, that he knew of, that being the Year when the Back Woods first began to be settled. John Musgrove aged 73. [Lib. B. fol. 67. Int. 28. fol. 68.] Came into the Country in 1682, and lived in Newcastle County four Years. Well remembers he first saw William Penn in the Year 1682 at Robert Wade's House in the Town now called Chester in Pensilvania, where the said William Penn then generally lodged, and Affirmant also. Joseph Wood, Carpenter, aged 81. [Lib. B. fol. 4. Lnt. 28. fol. 5.] Knew the Country now called Pensilvania before it was called 526 PENNSYLVANIA AND MARYLAND by that Name. Came from England and arrived in the Bay of Delaware about 1678, and the Counties Newcastle, Kent and Sussex, at that time, were governed by Sir Edmund Andros, who was then also Governor of New York under the Duke of York. Has resided in Pensilvania ever since. That William Penn ar- rived at Newcastle about 1682, where the Deponent then was at Work as a Carpenter, where he, then, saw Ephraim Herman and John Moll, make Livery of Seizin, of Newcastle aforesaid, in the Name of all the adjacent Lands that belonged to the Duke of York, to the said William Penn, by delivering a Turff and Twig from the Land, and Water and Mud from the River, by vertue of a Power from the Duke, as the Deponent under- stood, and which be heard read. William Peterson of Nevo Jersey, aged 92. [Lib. B. fol. 24. Int. 28. fol. 28.] Came into the Country about 1658, and lived for 20 Years after on Christiana Creek about three or four Miles from the Mouth of it, and has ever since resided in New Jersey. Saw William Penn, at his first Arrival in the Country, which he well remem- bers, having seen some Persons, then make Livery of New- castle, then called Sandhook, and the River, by delivering to him some Water and Earth. Note, The Defendant has cross examined both the last Wit- nesses to many other Matters. 7TH BRANCH, to prove the Petition from the Inhabitants of the Lower Counties in 1682, to be united to the Province of Pensilvania, also an Indian Purchase then made,and a Copy of a Demand made upon Mr. Penn by Colonel Talbot, which was in 1683. Patrick Baird, aged 47. [Lib. C. fol. 763. Int. 117. fol. 764.] Has lookt on the Paper Writing B. B. which purports to be A Copy of a Commission given by Charles Lord Baltimore to Colonel George Talbot, to demand of the Plaintiffs Father all the Land on the West side of the River Skuylkill that lay to the Southward of the 40th Degree Northerly Latitude, accord- ing to an East Line run as is thei'ein mentioned, with the Copy of the said Demand, and also a Copy of the Answer, given by the said William Penn, to the said Demand; which Copy of the Answer he believes is subscribed with the proper Name and Hand-writing of the said William Penn. And the Reason of his Belief is from the great Similitude of the said written Name, to the Name of William Penn, which he has seen subscribed to many other Papers, and which he was informed by divers BOUNDARY QUESTION. 527 Persons, were the proper Hand-writing of the said William Perm. Says he was appointed Secretary of Pensilvania in July last, and by vertue of the same Appointment, did receive sundry Books and Papers which were lodged in the same Office, and. amongst those Papers, did receive the said Paper B. B. Has seen another Paper D. D. which he takes to be an Original Paper containing a Petition from sundry Persons formerly Inhabit- ants of the Counties now Newcastle, Kent and Sussex, to the Proprietor of Pensilvania, praying for a Union and Incorpora- tion of the said Counties with the said Province, and he re- ceived the same at the same time, and in the same manner as the other. Has seen another Paper Writing F. F. and believes the same to be an Original Paper, purporting to be a sale of Lands from divers Indians to John Moll. And believes the Endorsement thereon, whereby, Moll released the same to the Plaintiffs Father, is an Original Writing also, and he received that Paper likewise, at the same time, and in the same man- ner, as the other. 8TH BRANCH, relating to the Names which the lower Counties have been called by, under the Dutch, the Duke of York and Mr. Penn, the making them into Counties in 1682, and their being called the Territories of Pensilvania. Samuel Preston aged 75 {Lib. B. Fol. 312. Int. 8. Fol. 315.] Has been acquainted with the County of Kent on Delaware about 60 Years. And with the Province of Pensilvania and the Counties of Newcastle and Sussex about 53 or 54 Years. The said County of Kent when he first knew it was generally called St. Jones's. Has heard that the said County (now Sussex) before he knew it, had been generally called the Whorekill. And that the said three Counties have frequently been called by the Names of the three lower Counties, and, The Territories of Pensilvania, both by William Penn and his Adherents, and also bv other Persons in general. Abraham Allmau aged 50 [Lib. B. Fol. 236. Int 8. Fol. 236.] Was born in, and is pretty well acquainted with Newcastle County, has been at Philadelphia, and has been in Kent County, but knows nothing of Sussex County; and he never heard ihe said three Counties called by any other Name than as aforesaid. James Logan aged 66 [Lib. B. Fol. 76. Int. 8. Fol. 92.] That Delaware Bay and River, whilst they were under the Dutch, as he has collected from his Reading, were called South River; and the upper Part of the three Lower Counties was called Sandhook, and the lower, Whorekill; That, when the 528 PENNSYLVANIA AND MARYLAND Country called New Netherlands (of which the Lands on both Sides of the South River were Part) were taken from the Dutch, by the English, about 1664, according to the best Information he could ever obtain, the said Lands on both Sides of the said River, were generally called Delaware; And that, upon taking the said Country called New Netherland, the upper Part of the said three Counties, formerly called Sandhook, was called the County of Newcastle, by which Name the Town there built by the Dutch was and is known to this Day. And the lower Part, towards the Capes, still retained the Name of Whorekill ; by which Name the small Town, also built by the Dutch, near the Cape was distinguished. That afterwards the said Two Districts, of Newcastle and the Whorekill, were divided into three Counties, by erecting one in the middle of them called St. Jones's. And that, sometime after, the Governor of New York changed the Name of the lowest Part of the said Land called the Whorekills, into that of Deal County. And after the Arrival of William Penn, Proprietor of Pensilvania, he, hav- ing obtained from the Duke of York a Grant of the said Coun- ties situated on all the Western Side of Delaware from the Province of Pensilvania Southward, changed the Name of the County of Whorekill or Deal, to that of Sussex ; and the Name of the said Town of Whorekill, to that of Lewes; and also changed the Name of the County called St. Jones's to that of Kent ; and erected a Town therein, which he called Dover ; but the Town and County of Newcastle still retain their former Appellation. And says that by an Act of Union made by the Representatives of the Province of Pensilvania and the said three Counties, the whole Government of the said Province and Counties was united, under one Legislative Assembly and so continued, under the Name of the Province of Pensilvania, and the Territories thereto belonging, from the Year 1683 to the Year 1704, fi*om which time, hitherto, they have had separate Assemblies, He has not heard the said Counties called by any other Name than he has mentioned, unless to the Name of Delaware, some Persons might have added the Word Settlement. Thomas Noxon aged 40 [Lib. C. Fol. 488, Int. 8. Fol. 496. ] Has been acquainted with Pensilvania and the three lower Counties about twenty Years. Has frequently heard the lower Counties called the Territories of Pensilvania, in Maryland, in Pensilvania, and in other neighbouring Governments, anrl has heard them called the three lower Counties. Ever since he has been well acquainted with them, they have been generally called the three lower Counties of Newcastle, Kent and Sussex. Has formerly heard the said Counties, by some ancient Dutch BOUNDARY QUESTION. 529 people residing in New York, called by the Name of South and South River. And from the Dutch Records at New Y T ork has learnt that, from 1630 to 1664 that Part, now called the three Lower Counties was generally called South River, particularly that Part where Lewes now stands was called Whorekill ; where Newcastle now stands, was first called Sandhook, afterwards Fort Casimier, and after that New Amstel. Has also learned from the English Records at New York, that, from the Conquest of New York and the said three Counties by the English in 1664, to near or about 1680, the said Counties were sometimes called South River, afterwards Delaware, Delaware River, and Dela- ware Bay. sometimes one, and sometimes the other, respecting the several Places in those Records severally meant, but, more particularly by the Names of Newcastle and Dependances, and Whorekill and Dependances. That, in or about 1680 the said Counties were distinguished into three Districts; and that Part now called Sussex County, still retained the Name of the Whorekill and Dependances; the Part now called Kent County, was, about that time called St. Jones's, and after- wards Deal ; and the Part, now Newcastle County, was then called Newcastle and Dependances, (but does not remember that it appears from those Records that the said Counties were then called by the Name of Counties) which last men- Honed Names they continued to bear till 1682, when it ap- pears by the same Records that Mr. Penn purchased the Land composing the said Counties from the Duke of York. Has also learned from the Records, within the said three Counties, that, soon after the said Purchase, Mr. Penn erected the said Lands into Counties, by the Names of Newcastle, Kent, and Sussex, Avhich Names they now bear. 9TH BRANCH, To prove Colonel Talbot's running a Line in 1683 from the Mouth of Octorara Creek by Order of Lord Bal timore, for a Division, called Octorara Line, Colonel Tal- bot's Line, and Lord Baltimore's Line; and afterwards building a small Loghouse of a few Logs, within and below that Line, for a Fort, (which themselves afterwards de serted) and that that Line was always regarded by Us; and tor more than 40 Years by them also. Samuel Preston aged 75 [Lib. B. Fol. 312. Int. 25. Fol. 335.] Heard of one Colonel George Talbot who lived in Maryland, and had considerable Interest with, and was a great Favourite of, the late Lord Baltimore, and bore a great Sway in Mary- land ; but whether he held any Post or Place there knows not. 34— Vol. XV. 530 PENNSYLVANIA AND MARYLAND John Musgrave aged 73 [Lib. B. Fol. 67. Int. 25. Fol. 74.] Knew Colonel George Talbot, and has heard that he lived in Maryland. Samuel Hollingsworth aged 67 [Lib. B. Fol. 57. Int. 25. Fol. 66.] Knew Colonel George Talbot, and has seen a House, on the West Side of the Head of Elk River, which he was informed, was the House he lived in. The same [Int. 23. Fol. 61.] That one Evening, in or about 1683, Colonel George Talbot of Maryland, with 4 or 5 others, came to the House of the Affirmant's Father, and requested Lodging for that Night, and being welcomed into the House, upon Conversation between his Father and Talbot, concerning the Business Talbot was then about, the Affirmant heard Talbot acquaint his Father, that he was then, by Lord Baltimore's Orders, running a Line to divide the Province of Maryland from the Province of Pen- silvania, which was to be the North Boundary of Maryland ; that he had begun the said Line, at the Mouth of Octorara, and had, and was, to run it, from thence due East to Delaware. That they returned to his Father's House the next Night, and then the said Talbot informed his Father that they had finished the said Line. That the Affirmant the next Day saw a Line of marked Trees, which he then, and many Times afterwards un- derstood, was the Line run by the said Talbot, and which he saw frequently after, and so well remembers that he believes he could shew its Course at this Time; and understood that it ended a little below the Mouth of Naaman's Creek: That the said Line was sometimes called Talbot's Line, sometimes Mary- land Line, but, generally, Lord Baltimore's Line. Has heard there was a Fort built, (soon after running the said Line) by the Order of Lord Baltimore, some Miles to the Southward of the said Line, near Christiana Bridge, in order to keep Possession. That he never saw the said Fort, but understood it was a little Loghouse, that hardly deserved the Name of a Fort. John Musgrave, aged 73 [Lib. B. fol. 67. Int. 23. fol. 70.] That about 1683, Colonel George Talbot, with some others, came to the House of Valentine Hollingsworth, the Affirmant's Master, and requested Lodging for a Night which being granted, upon Discourse between Talbot and the Affirmant's Master, the said Talbot, in this Affirmant's Hearing, told him he was running a Line from the Mouth of Octorara to Delaware River, by Order of the Lord Baltimore, for a Division Line between Lord Baltimore and Mr. Penn. That the said Talbot and his Company departed next Morning, and returned to the Affirm- BOUNDARY QUESTION. 531 ant's Master the next Night; and then, said he had flnisht the said Line. That very soon afterwards he saw a Line of markt Trees, which, he was informed, stood in the Line run by the said Talbot, and were markt by him, which he knew a long time afterwards. Does not know where the said Line ran into Delawai-e River, but has heard, 'twas a little below Naaman's Creek. Does not know, or has heard, that the said Line was run by any Authority or Direction^ from William Penn. Samuel Gellibrand {Lib. A. fol. 91. Int. 9. fol. 120.] Proves an Exhibit Botra No 20. to be a true Copy of an Ori- ginal Letter from William Penn, to the Committee for Trade and Plantations remaining now in their Office, dated 14th August lfi83, wherein Mr. Penn relates some Interviews and Dis- putes he had already had with Lord Baltimore in America. And now came on the very busy Contest at the Council-Board, when there were so many Hearings in the Years 1683, 1684, and 1685, between Lord Baltimore and Mr. Penn. Samuel Gellibrand [Lib. A, fol. 91. Int. 10. fol. 122.] Proves an Exhibit, being Copies of Petitions and Orders, &c. in May and February 1683, and August 1685, remaining now at the Board of Trade. That Exhibit being markt Botra, No 21. The same [Int. 11. fol. 125.] He proves the Minutes of the Proceedings^ and Acts of the Committee, during those three Years, from 17th April 1683.. to 7 November 1685. It is Exhibit Botra No 22. Note— During that long Contest, Pensilvania being in its Infancy, and the Proprietor attending those Hearings, Lord Baltimore took the opportunity, to build, in that Wilderness, unsettled Country, what is now called a little Furt ; of which we shall make good use, after we have shewn that Pensilvania, and indeed both Sides, paid a great regard to that ex parte Octoraro Line, so run by Lord Baltimore's Order in 1683. Samuel Hollingsworth, aged 67. [Lib. B. fol. 57. Int. 24. fol. 65.] Has heard that the Part of the Line which he has before mentioned, which was markt (towards Octorara) was regarded by the People inhabiting on both Sides of it, as the Division between the Provinces of Maryland and Pensilvania, but that Part thereof which run thro' Newcastle County (towards Dela- ware) he never understood, was, in any sort, regarded as such a Division Line. John Musgrnve, aged 73 [Lib. B. fol. 67. Int 24. fol. 72.] That the Inhabitants of the Province of Pensilvania and Maryland, for a long time after running the said Line, had so 532 PENNSYLVANIA AND MARYLAND great a regard to the same, that no Incroachments were made beyond it, on either side; But, of iate, he has heard, some En- croachments have been made by the Maryland Officers, but does not know it, living far from thence. Does not know that the Proprietors of Pensilvania, their Agents, Commissioners, Magis- trates, Surveyors or Officers, have transgrest the said Line, or that any Lands have been granted, by or under their Authority, or any Jurisdiction exercised, to the Southward of that Line. John Ball, aged 69. [Lib. B. fol. 15. Int. 22. fol. 16.] Knew the Town called Newcastle, about 1677, or 1678, which was then settled by Dutch People, and called Sandhook, which, with the County of Newcastle, was then governed by Governor Andros, the Gfovernour of New-York under the Duke of York. That about 54 Years ago (1686) his Father shewed him a small Log-house standing near Christiana Bridge, on the West Side of Christiana Creek, about 5 Miles from Newcastle, and told him that was Talbot's Fort, and that it was kept by Talbot's Men. That the said Fort was built amongst the Inhabitants of the County of Newcastle, who owned Mr. Penn for their Proprietor and Landlord, several of whom lived between the said Fort and the Province ol Maryland. That this Deponent was informed the Land whereon the Fort stood, was taken up, before the Fort was erected, by a Company under the York Government; and heard one Thomas Ogle and his Brother John, say it was their Land, and that they claimed under their Father who was one of the Patentees; but knows not, nor ever heard, that it was taken up under the Government of Maryland, That the said Fort was about thirteen or fourteen Feet long, and about 10 Feet wide, covered with Slip- Wood, and could not cost, in the Deponent's Judgment, above three or four Pounds. That the Design of the Lord Baltimore, as he has been informed, in building and keeping Men in the said Fort was, to keep Possession of the Place, which he claimed. That about six or seven Irish Men, esteemed Roman Catholicks, kept the Fort, who behaved peaceably towards the Inhabitants, amongst whom they frequently went. That he knew of no In- habitants near the said Fort, or within the County of New- castle, who owned the Lord Baltimore's Authority at that time; But has heard there was a Tract of Land surveyed under the Lord Baltimore, within three Miles to the Westward of the said Fort, which was unsettled. Believes the Inhabitants of New- castle County could easily have dispossest those who kept the said Fort ; but they neglected to do it, because the Men behaved themselves quietly and civilly to them. That the said Men had sometimes Plenty of Provisions, but were generally in Want, BOUNDARY QUESTION. 533 which he knows, by their frequent going down to Maryland, and there pressing Provisions. That they lived in the Fort, to his Knowledge about two Years, and has heard they lived, in all about three or four Years, and left it upon some of their being Frost-bitten, since whi3h time no Person, pretending Authority from, or owing the Jurisdiction of, Maryland, was ever in possession of the said Fort, or the Land thereabout, to the Knowledge of the Deponent. *John Garretson, aged 77. [Lib. B. fol, 7. Int. 22. fol. 8. ] Has known the County of Newcastle., as long as he can re- member. Says it was at first, under the Government of the Governour of New- York, and when his Power expired, has been under the Government of Mr. Penn, the Father of the Plain tiffs, and his Descendants. That upwards of .50 Years ago [and he was examined, and so were all the American Witnesses, in the Year 1740] there was a Fort built, and kept, by Lord Dal - timoreon the North Side of Christiana Creek, about five Miles distant from Newcastle. That there were but few Families settled thereabouts; at that time, Four of which, besides his own, Jived between the said Fort and the Province of Maryland, but more that lived between the Fort and Maryland he can't certainly remember, which Families own'd Mr. Penn for their Proprietor and Landlord. That the Land, whereon the said Fort was built, was taken up, before that time, for the Use of one Ogle, either under the Government of New York or the said William Penn, but is uncertain which. That the said Fort was about 14 or 15 Foot long, and built of Logs, and covered with Clap-boards, and could not cost above two or three Pounds, and was fronted with, a few Palisadoes about the Height of a Man. Believes the Design of Lord Baltimore in building the Fort, was to take Possession of the Place. That the Fort was kept, sometimes by one or two, but never above 7 lusty Irish Men to the best of his Remembrance, who lived very peaceably with the Inhabitants. That they were sometimes in the Fort, at other times abroad, but one or more always remained in the Fort. Does not remember any Persons who lived near the Fort, or in the County of Newcastle at that time, owned the Lord Baltimore's Authority. Believes the Inhabitants of the same County, who owned Mr. Penn's Government, could easily have dispossest the People in the Fort of the same, if they had re- solved so to do; but that they declined so doing, because they lived peaceably amongst them. That the People in the Fort were chiefly supplied with Provisions from Maryland, and some- times lived plentifully, at other times in Scarcity, and stayed there between 4 and 5 Years. That the leaving the Fort was 534 PENNSYLVANIA AND MARYLAND occasioned by the Men's getting fuddled, and lying out in the Cold, whereby some were froze to Death, and others lost their Limbs. Since which time, to the Knowledge of the Deponent, no Person pretending Authority from, or owning the Jurisdic- tion of, Maryland, has been in the Possession of the said Fort, or any Lands thereabouts. And the Reason of this Deponent's Knowledge of what he has declared on this Interrogatory is, that he lived very near to the said Fort at the time of. its Building and Settlement, and was frequently in it. Note, Both these last Witnesses about the Fort, the Defend- ant has cross-examined to their being interested in the Event of the Cause only. But the Defendant himself has examined a great many Witnesses (in Number) many of which speak onlv to this Fort, and to another Action, about burning the Whore- kills; which, if he had had Shame or Humanity in him, he should rather have concealed. And his own Witnesses, prove every Fact, above spoke to about the Fort. John Taylor, aged 43, the Defendant's own Witness, but cross- examined by us [Lib. C. Fol. 648. Int. 23. Fol. 649. J Says, that near 20 Years ago, his Father, was Surveyor of Chester County, shewed this Witness a Line of markt Trees, running Eastwai'd from the Mouth of Octoraro Creek, on Sus- quehanna River, and said it was called Lord Baltimore's or Colonel Talbot's Line, and that it divided Maryland from Pen- silvania. This Witness's Father then said, he had been in- formed by an ancient Man, an Inhabitant of Maryland, that the said Line was run by Colonel Talbot, by the Order of Lord Baltimore, for a Division-Line as aforesaid; and that he this Affirmant's Father had written Orders or Directions from the Commissioners of Property in Pensilvania, not to survey Lands to the Southward of that Line. The Affirmant's Father than also said that he had run the said Line Eastward, from the Mouth of the said Creek upwards of 20 Miles. Says that the said Line, for the length of six or seven Miles was afterwards shewn to him by several ancient People, who informed him that they attended Colonel Talbot in 1683, for several Miles, when he run and markt the said Line. About 15 Years ago the Affirmant having occasion to enquire, concerning the Divi- sion between the said Provinces, the said Line, near the Mouth of Octorara Creek aforesaid, was shewn to the Affirmant by one Joseph Askew, [Note, two other Witnesses prove Askew to be dead] who resided thereabout, and informed this Affirmant either that he saw the said Line run, or, had been informed that the same was run, by Colonel Talbot, and 5 or 6 Gentle- men from Maryland, by Lord Baltimore's Order, and was gen- BOUNDARY QUESTION. 535 erally called by the Inhabitants there Lord Baltimore's Line. And that, afterwards the said Jonas Askew rid many Miles along the Line with this Affirmant, when the Marks on the aid Trees were very clear and apparent. Says also that, about 15 Years ago, he was Sheriff of Chester County, part of which, to the Southward, joins to the Northern Part of Cecil County in Maryland, and about that time being in Company with John Hack, who was then Sheriff of Cecil County, they together saw the said Line which as it was said was run and markt by Colo- nel Talbot, and they both called, and esteemed it their Divi- sion-Line. James Logan, aged 66. ]Lib. B. Fol. 76. Int. 23. Fol. 133.] That in the Summer of 1700, the Proprietor William Penn took a Journey into Maryland, and, in his Return, was at- tended by divers Gentlemen of Maryland in his Journey from thence, up the River Susquehannah, which Gentlemen having accompanied him as far as Octorara Creek, or River, stopt there, in the Ford as this Affirmant was soon after credibly informed by some of the Pensilvania Gentlemen, and there took leave of him, with Expressions to this purport, viz. Now we have waited on your Honour, into your own Province, and must desire leave to return; To which the said Proprietor answered, I hope I have been in it some time ago ; which Information led the Affirmant to enquire into the Reason, and he was assured, thereupon, that the Lord Baltimore had in 1683, come up to the Mouth of the said Creek or River of Octorara, and having made some Observations there, had directed Colonel George Talbot to proceed from thence, Eastward to Delaware River, and to mark on the Trees a Line of Division ; and that the Affirmant hath been assui-ed, by divers Persons, that they saw the said Colonel Talbot and his Company in their said Journey to the side of Delaware River, and had frequently seen divers of the said markt Trees, and traced the Line from thence, West- ward for some Miles. That, upon the Truth of this Informa- tion the Affirmant so intirely depended, that being Secretary and Commissioner of Property, upon the Application of Corne- lius Empson, William Brown, Andrew Job, and clivers others, who petitioned for a Grant of that Tract of rich Land now called Nottingham, at the Affirmant's Instance it was wholly declined, till such time as the Applicants had produced un- questionable Evidence, that the most Southern Part of the said Tract lay at lease the Distance of one Mile to the Northward of the said Line, run from the Mouth of Octorara as aforesaid ; upon which the said Tract was granted to them. That the Affirmant never heard the said Line disputed for a Boundary, 536 PENNSYLVANIA AND MARYLAND till by a Letter from Charles Carrol then Agent for Maryland, the Affirmant found the said Agent did not own the said Lin3 as a peremptory Division which induced the Affirmant to en- quire further into the certainty of the said Boundary ; and in order thereunto he found a Copy of a Writing left by the said Colonel Talbot at Philadelphia, with Nicholas More President, in the Absence of the Proprietor William Penn, who was ,then at New York, containing a Commission from the Lord Balti- more to the said Colonel Talbot, dated the 17th of September 1683, requiring him to repair to Schuykill, and there demand, from the said William Penn, possession of all the Lands on Delaware, to the Southward of the said markt Line, as also a Demand in writing dated the 24th of the same Month, made by the said Colonel Talbot, in pursuance of the said Commission ; as also a Writing signed by the said Wiliam Penn, dated the 31st Day of October then next following; which being upon the same Paper with the aforesaid Copies, being, as the Affirmant is well assured, signed by the said Proprietor's own Hand, im- mediately induced him to believe, and the Affirmant does firmly believe that the said Copies of the Lord Baltimore's Commis- sion, and of the said Colonel Talbot's Demand, are true, genuine, and Authentick ; and the Affirmant also procured sundry other Vouchers for the Truth of the said Lino ; but, as the Affirmant is not immediately furnish 'd with any of them, refers to them when produced. And further saith, that he heard divers times from Henry Hollingsworth, who formerly was Clerk, and Surveyor in Chester County and is long since dead, That one of those who were employ'd to run the said Line, and afterwards lived in the Town of Chester, had fre- quently affirmed in his hearing, that after the first day's Jour- ney, the said Colonel Talbot made a Sett off to the Northward, before he resumed the said Line on an Eastern Course. James Logan, [Lib. 76. Int. 24. fol. 142.] Saith there never was, to his Knowledge, and he has all the moral Certainty that can be had, in such case, that there never was any Grant or Survey, made by the Proprietors of Pensil- vania, or under their Authority, of any Lands, more or less, neither have they themselves, or any Person by their Authority, exercised any Acts of Government to the Southward of the Bounds, Limits or Line of Division aforesaid, and to the West- ward of the Limits of the three Lower Counties aforesaid. And saith, that after the said Settlement of Nottingham and the Set- tlers thereof, by their large Improvements, had rendered them- selves considerable, the Lord Baltimore's Agents for Maryland, (as the Affirmant conceives) beginning to think these Parts worth their Notice, ceased not to claim them ; in so much, that BOUNDARY QUESTION. 537 in the Year 1722, not only Isaac Taylor the Surveyor of Chester County aforesaid, was taken, by a Warrant from the Justice of Maryland, for surveying some Land situate to the Northward of the said Line, but also Elisha Gatchell, going to visit the said Surveyor, and to inquire into the Cause of his being so apprehended, was likewise seized, and both the said Taylor and Getchell were committed to the Custody of the Sheriff of Cecil County, and sometimes to the Prison it self, and were much harrassed for near one whole Year, being removed thence to the supreme Court of Annapolis, and there, at length ac- quitted; but the Affirmant having taken a Voyage to London, in the Fall of the Year 1723, and making a Complaint thereof to Charles Lowe, then the Lord Baltimore's Agent in London, the said Lord and Hannah Penn, Executrix of the late Pro- prietor William Penn's Will, entred into an Agreement dated the 17th of February 1723, that the Possessors of Lands in both Provinces should remain quiet and unmolested, during the Space of 18 Months, in which time it was hoped, the Bound- aries would be effectually settled ; of which Agreement signed by the Lord Baltimore himself, and the said Hannah Penn, jointly with Henry Goldney and Joshua Gee two of the Trustees for the said Province of Pensilvania, and witnessed by Simon Clement, the said Charles Lowe, and the Affirmant, three Ori- ginals of the said Agreement were executed, on each side ; which Agreement being transmitted to the respective Governors of both the said Provinces, with Orders on each side, that the same should in puruance of the said Agreement, be proclaimed in each Province; the said Orders were accordingly obeyed in the Province of Pensilvania, and were in general observed in both Provinces, till, after the Arrival of Governor Ogle in Maryland, in the latter End of 1731, notwithstanding he well knew that the Lord Baltimore had entered into an Agreement with the Proprietors of Pensilvania, for putting a final Period to all their Disputes, of which he, by his Letter, accordingly advised Colonel Gordon, then Governor of Pensilvania, yet he renewed the former Disturbances. John Taylor, aged 43. [Lib. C. Fol. 648. Int. 24. Fol. 653.] Ever since he knew the said Line, as far as he knows, or has heard and believes, the Pensilvania Inhabitants in general, and the Proprietors of that Province, their Agents, Commissioners, Magistrates, Surveyors and Officers, have always esteemed, re- garded and observed the said Line as a Division between the Provinces of Maryland and Pensilvania, and neither the Pen- silvania Proprietors, nor any under their Authority, did survey any Lands, or exercise any Acts of Government, to the South- ward of that Line, to the Knowledge or Belief of this Affirmant. 538 PENNSYLVANIA AND MARYLAND That by coversing with several of the Inhabitants of Maryland before 1726, or 1727, always heard and believes that the People of Maryland, till about those Years, thought the said Line was the Division of the same Provinces. But has heard and believes that since those Years, .Lands have been surveyed under the Proprietor of Maryland, and Acts of Government have been exercised by his Magistrates and Officers, to the Northward of the said Line. 10TH BRANCH, about the Indian Purchases made by the Dutch and Swedes, and Mr. Penn, and of his exercising the Gov- ernment of the Lower Counties from 1682, to 1702. James Logan, aged 66. {Lib. B. Fol. 76. Int. 12. Fol. 121.] That the Dutch, as he is well assured, and, as he believes, the Swedes, having purchased from the Indians, the greater Part of the Lands below Duck Creek in the said three Lower Counties, the said William Penn's Commissioners in 1685, for a large Consideration, made a very extensive Purchase of Land from the Indians, from the said Duck Creek, as far North as Chester or Upland Creek, which is reputed by Travellers, no less than 60 Miles, which last mentioned Place, in common Estimation, lies not above five Miles to the Northward of the Northern Boundaries of the said Counties. And saith, that only the said William Penn, and his Deputies, exercised the Government in and over the said Province of Pensilvania, and three Lower Counties of Newcastle, Kent and Sussex, from 1682, to 1702, (excepting for some time in the Years 1693 and 1694, to the be- ginning of 1695, when King William and Queen Mary, by Com- mission to Benjamin Fletcher E*q ; then Governor of New York, authorized him to take the said Government under his Care, alledging for a Reason the Proprietor's absence from the same; but by other Letters Patent, dated in August 1694, re- stored the Government of the said Province and Counties to the said William Penn and his Heirs as before, and saith Wil- liam Penn, only made two Voyages from England to America between the Years 1680 and 1703. 11TH BRANCH, Proving Mr. Penn's constant Possession as Landlord and Proprietor ever since 1681 and 1682; his granting out of the Lands; appointing great Numbers of Collectors and Receivers of Quit-Rents in all the Lower Counties, and receiving Quit-Rents. Samuel Preston, aged 75, [Lib. B. Fol. 312. Int. 9. Fol. 317.] Has li\ed in the three Lower Counties and Pensilvania about 52 Years, was Sheriff of Sussex about 1690, and in some little BOUNDARY QUESTION. 539 time before or after, a Justice of Peace for that County. In 1700 was a Councellor for that County by the Election of the People. Has been a Member of the Governor's Council for the Province of Pensilvania above 20 Years last. Has been Treas- urer of that Province about as long. Has been an Alderman for the City of Philadelphia about 30 Years, was Mayor of that City in 1711. That ever since he has known the said three Lower Counties and the Province of Pensilvania, they have been in the Possession of the Duke of York and William Penn, and those claiming under him, as Proprietors and Landlords of the same, successively. When he first knew Kent County, it was the Practice of the County Courts in the said Lower Counties, as he was informed and believes, to grant Warrants and Survey Lands, and thereupon Patents were granted for those Lands by the Government of New York ; but that, always after William Penn obtained the Government of the same Counties and Province of Pensilvania, hitherto, he the said William Penn, and those claiming under him, have, succes- sively, appointed the Officers, Commissioners, and Managers of Property, in the said Province and Counties. And never knew that the Defendant, or his Ancestors, ever were in Possession of the said Province of Pensilvania, or the said Counties, as a Proprietor or Landlord of them. Or that the Officers, Com- missioners or Managers of Property for the Lord Baltimore ever granted out any Lands or Plantations within the same Province or Counties. He has known that William Penn deceased, and the Widow Hannah Penn, Mother of the Plaintiff's (likewise deceased,) by Virtue of the said William Penn's Will, and the present Plaintiff's, have been severally and successively in the Possession of the same Province and Counties, as Landlords, Landladies, and Proprietors of the same Province and Counties ; and has heard and believes that William Penn was in the Pos- session of the Province of Pensilvania from 1681, till this Wit- ness first knew the same Province. That he knew the said three Lower Counties before 1682. And since that Year, the said William Penn, and those claiming under him, have, always been in Possession of the same. This Witness never held any Office which gave him an opportunity of inspecting Records, and thereby becoming acquainted with Grants and Titles of Lands in the said Province and Counties, but has occasionally, seen several Grants of Lands in the said Province and Counties, which, since the Year 1682 were all made by the said William Penn, and those claming under him ; and hath never seen any Grants f n r Lands in the same Province or Counties from or under the Lord Baltimore, or any of his Ancestors. Note— The Defendant has cross-examined Mr. Preston to a whole Sett of Interrogatories. 540 PENNSYLVANIA AND MARYLAND James Logan, aged 66. [Lib. B. Fol. 76. Int. 9. Fol. 97. ] From 1701 has held the several Offices of Secretary. Com- missioner of Property, General Receiver of the Proprietors Dues, and one of the Governor's Council, and continued in them many Years. On Governor Gordon's Death in 1736, he was, for near two Years, till the Arrival of the present Gov- ernor, President of the Council, and as such, had the Admin- istration of the Government in Pensilvania, and then, divested himself of all Offices in the said Government. That for seven Years from the Year 1716, he was President of the Court of Common Pleas for Philadelphia County ; and from the Year 1731, for 5 Years, he was Chief Justice of the supreme Court of that Province, which he was obliged to lay down, upon his coming to the Administration of the Government. That ever since he knew the said Province and three Lower Counties, the said William Penn and his Descendants, have always been in Possession of the same Province and Counties as Proprietors and Landlords thereof, except when the said William Penn was obliged to vest the same in Trustees for the Payment of a con siderable Debt contracted by him; during which time the said William Penn, his Trustees and Descendants, have successively appointed the Officers, Commissioners, and Managers of Prop- erty, for granting out Lands in the said Province and Counties — he has — neither heard, nor does believe, that Lord Baltimore, or his Ancestors, ever had any Possession or Management, in or of the said Province, or the said Counties, or any part of them, except by an Intrusion and forcible Entry made, in or about 1685, by some of Lord Baltimore s Officers, upon the Land of one John Ogle, near Christiana Creek, of which the said Ogle had been long in Possession, and building a small inconsid- erable Fortress there. Says he is very sure the said William Penn only, was always in Possession of the Province of Pensil- vania from 1681, till this Witness first knew that Province, and also of the said Counties from the Year 1682, till this Witness's first Knowledge of them. He has seen several of the Records of the said Province but it was never his Business to inspect any of them. That as Secretary as aforesaid, he had occasion, ever since the Beginning of the Year 1700, to inspect great Numbers of the most ancient Grants as well as others, and Titles of the Tenants and Occupiers of Lands in the Province of Pensilvania and the said Counties, made before the Year 1700 ; and never saw one Grant, during that time, of any Lands in the said Province or Counties, from Lord Baltimore, or any of his Ancestors, or from any other under his or their Authority. The most ancient of all which Grants that he has seen, were from Mynheer Stuyvesant, who was Governor for the Dutch at BOUNDARY QUESTION. 541 the time when the Lands were under their Government; and after the Year 1664, from Richard Nichols, Francis Lovelace, or Sir Edmund Andros, the several Governors at New-York ; and, from the Year 1682, from the said William Penn or his Commissioners. That during the Year 1700, and to November 1701, the said William Penn signed all the Grants of Lands in the sa.id Province and Counties ; and that from November 1701, this Witness, as one of the Commissioners of Property for William Penn and the Trustees aforesaid, signed almost every Grant for Lands in the said Province and Counties, until the Death of the said William Penn; and from his Decease this Witness, being duly authorised for that purpose, continued to sign all the Grants that were made of any Lands in the said Province or Counties, until the time the Plaintiff Thomas Penn arrived in the Province in 1732 ; the other Commissioners of Property surceasing to act during the Witness' Absence on a Voyage to England. That the Number of those Grants and Titles was great, but he never kept any Account of them. Note — The Defendant cross-examined this Witness, only as to his being interested in the Event of the Cause, or hold- ing any disputed Lands, which he, in the most precise, full and absolute Terms utterly denied. These two Persons, having long knoAvn the Country, and gone thro' all these publick Offices, were the properest Persons to know these Matters, but what they say in General, and at once, is no more than what is confirmed, peacemeal, by a Cloud of other Witnesses, (even the De- fendant's own Witnesses,) and by the Records themselves. * James Steel, [Lib. C. Fol 559. Int. 127. Fol. 625.] Has known Pensilvania and the three lower Counties above 32 Years. He was and acted, for many Years, as a Justice of Peace in Kent County. And was, afterwards one of the Justices of the Supreme Court for the said three Counties. About that time was also appointed and continued for many Years, Receiver of the Quit Rents and other Revenues accrewing to the Proprietors of Pensilvania in the said Province, and also in the said three Counties. For about seven Years past has acted as Receiver General under the Pensilvania Proprietors for that 'Province and the said three lower Counties. Ever since his first Know- ledge of the said Province and Three Counties, Mr. Penn and his Family and Descendants, or Persons under their Authority, have all along, to this present Time, been in Possession of the said Province and thi'ee Lower Counties as Landlords and Pro- prietors thereof, and have all along appointed the Magistrates, Officers and Commissioners of Property for the granting of 542 PENNSYLVANIA AND MAEYLAND Lands within the said Province and Counties. And never knew Lord Baltimore, or any of his Ancestors, in Possession of the said Province and Counties as Proprietor or Landlord thereof, since this Affirmant knew the same : nor did he ever know the said Defendant, or any of his Officers, Commissioners or Agents, to grant out the several Lands within the said Prov- ince and three lower Counties, or any of them. And has heard and believes the said Mr. Penn was always in Possession of the said Province and three lower Counties, from 1681, as Proprie- tor or Landlord thereof, unto the time he first knew the same. Benjamin Eastburn aged 44. [Lib. C. fol. 678. Int. 128. Fol. 1714.] Has seen in the Office of Surveyor General of Pensilvania, and the three Lower Counties, (which he now holds) Great Numbers of Original Warrants and Surveys for the granting Lands in the said Province and Counties; which all appear to be made either under the Government of the Province of New York, or by Courts who acted under the same Government, or under the Authority of Mr. Penn deceased, formerly Proprietor of Pensilvania, or those who have claimed under him ; but never did see any Grants or Titles for or to Lands in the same Province or Counties, which were made or derived under the Defendant or his Ancestors, or his or their Commissioners or Of- ficers. That by Warrants now lodged in the said Office, it appears that Mr. Penn and those claiming under him. before June 1785, have granted near and about 830,000 Acres of Land, lying in the said Counties of Newcastle, Kent and Sussex. And that the Dutch and English Governments, at Nsw York aforesaid, had granted very large Quantities of Land there, before Mr. Penn's Right to the said Counties, to the amount of near 100,- 000 Acres as he believes, under which same Grants divers Per- sons, there residing, claim and enjoy those Lands to this Day. * James Steel {Lib. C. Fol. 559. Int. 128. Fol. 629.] Has seen several Grants for Lands within Pensilvania and the Lower Counties, not only amongst the Records kept at New York, but aiso in the Hands of several of the Occupiers of such Lands, bearing Date before 1681, and made by the Governor of New York. And that under some of those Grants some of such Occupyers as he believes still continue to hold their Lands, under the Plaintiffs, but the greater Number of the Occupyers and Claimants of the Lands under such old Grants, have since renewed their Grants for such Lands with and under Mr. Penn and his Descendants, and those claiming under him. He has also seen great Numbers of Grants and Titles of Lands within the said Province and three lower Counties, bearing Date since , BOUNDARY QUESTION. 543 1681, as well upon and amongst, the several Records kept in and for the said Province>nd Counties, as in the Hands of several of the Owners and Occupyers of such Lands. And says that all the same Grants appeared to him to have been made by and under the Authority of Mr. Penn, his Family and Descendants, and does not remember ever to have seen any Grants for Lands within the said Province and three lower Counties, which were made by or under the Defendant, or any of his Ancestors, or his or their Commissioners, Agents or Officers for Property. Says that by and from his inspecting and examining the sev- eral Memorials, Minutes and Entries of Lands granted within the said three lower Counties of Newcastle, Kent and Sussex, which are kept in the Office of the Surveyor General for the said Province and three lower Counties, he computes and believes there were near or about 100,000 Acres of Land within the said three lower Counties granted before 1682, by or under the Au- thority of those under whom William Penn claimed ; and that, since that Time, and before June 1735, there have been near or about 328,000 Acres of Land, within the said three lower Coun- ties, granted by Mr. Penn, his Family and Descendants, and those claiming Authority under him and them. Says that by and from several ancient Books, Papers and Memorials, now in his Custody as Receiver General under the Plaintiffs as aforesaid, he finds and believes, that, soon after the Grants of the said three lower Counties to William Penn. John Hill, Samuel Preston, William Clarke, and Thomas Fisher were appointed by or under William Penn to be his Receivers and Collectors of Rents and Quit Rents, from the Tenants and Occupyers of Land in the said County of Sussex; and that George Martin, William Berry, Samuel King, and William Rodeney, and some- times the said William Clarke, were also appointed by or under the said William Penn to be his Collectors and Receivers of such Rents in the said County of Kent. And also that Edward Gibbes, George Dakeyne, Cornelius Empson, and John French, were also appointed by or ander the said William Penn to be such his Collectors and Receivers in and for the said County of Newcastle, And that James Atkinson, was in like Manner appointed to receive such Rents in all the said three Counties. All and every of which said several Collectors and Receivers this Affirmant finds by the same ancient Books and Papers, and believes, did actually receive, divers and considerable Quit Rents from the then several Tenants and Occupyers of Lands in each of the said three Counties, for the Use of the said William Penn. And says that, since his being appointed Receiver and General Receiver as afore set forth he has also received, from time to time, from the Tenants and Occupyers 544 PENNSYLVANIA AND MARYLAND of Lands in each of the said three Counties divers and consider- able Quit Rents for the Use of William Penn, his Family and Descendants. And says he believes and is well satisfyed, that all and every of the said Tenants or Occuoyers of Lands, within the said three Counties, which are herein before mentioned to be held under the said ancient Grants from the Governor of New York as aforesaid, have at one Time or other, paid some Part of their Quit Rents, for such Lands, to, or to the Use of the said William Penn, his Family or Descendants, or some of them. James Logan, aged 66. [Lib. B. fol. 76. Int. 10. fol. 106] That William Penn did, from time to time, appoint the several Officers for collecting the Quit Rents from the Tenants and Occupiers of Lands in the said three lower Counties ; and that no other Officers or Collectors were ever appointed for that purpose by or under any other Person but the said William Penn and Persons under his Authority, from the time of the said Wiliiam Penn's first becoming Proprietor of Pensilvania and the said three Counties, as this Witness ever heard or un- derstood. And says there has been considerable Quit Rents received from the Tenants in the said three Counties, by the said Officers and Collectors so appointed by the said William Penn and under his Authority as aforesaid. Says the Names of some of the said Collectors of Quit Rents so appointed by the said William Penn and under his Authority, were Samuel Land. Edward Gibbs and George Dakeyne, with several others, for the County of Newcastle; and William Clarke, principally, for the Counties of Kent and Sussex; But there were divers others whose Names do not at present occur to his Memory. 12TH BRANCH, That constant Annual Assemblies, have been held, for the Lower Counties, under Mr. Penn from 1682 ; Courts of Justice always held there, under his Authority; And none of the Inhabitants of those Counties ever elected into the Maryland Assembly. Samuel Preston, aged 75 {Lib. B. fol 312. Int. 30. fol. 337.] Says that upon Proprietor Penn's first coming to Pensilvania and settling the Constitution thereof, and of the three Lower Counties, the Members or Representatives, who were elected by the People in and for the Province, and in and for the said Counties, sate in and made but, one united House of Assembly under the Government of the said William Penn; And that the said three lower Counties were thereupon called the Territories of Pensilvania; But, some time after Mr. Penn's second De- BOUNDARY QUESTION. 545 parture from Pensilvania. the Representatives of the People divided, and sate in, or made two separate Houses of Assembly, one for the Province of Pensilvania, and the other for the three lower Counties; which were, from that time, called the three lower Counties of Newcastle, Kent and Sussex on Delaware. Doth not know how many Assemblies have been held in the said Province and Counties, but says the same have been, always, held under William Penn his Family and Descendants. Says there have been Courts of Judicature held in the said three lower Counties ever since his being acquainted therewith, which have always been, and still are, held under the said William Penn his Family and Descendants, and not under the Defend- ant or his Ancestors, or any other Person or Persons whatso- ever. James Logan, aged 66. [Lib. B. fol. 76. Int. 30. fol. 154] Says that from 1682 there have been, to the best of his Know- ledge, constant Annual Assemblies, and also Courts of Justice, held, down to this time, in Pensilvania and the said Lower Counties, under the Authority of William Penn and his De- scendants. And never knew or heard of any Assemblies or Courts of Judicature whatsoever, held in the said Province or the said three lower Counties, ot either of them, under the Authority of the Defendant or any of his Ancestors. John Ball, aged 69. [Lib. B. fol. 15. Int. 30. fol. 22.] Has known the Lands now called Pensilvania 64 Years, and the County now called Newcastle sixty two Years, in which County he has lived 54 or 55 Years. That formerly the Repre- sentatives of the said three Counties, and of the said Province, composed one joint Assembly, but, for near 30 Years past, the Representatives of the said Counties have made a distinct As- sembly. All which Assemblies have been always held under the Proprietors of Pensilvania, and never under the Proprie tors of Maryland. That there have been Courts of Judicature held in the said Counties, which as long as he remembers, wera always held under the Proprietors of Pensilvania, and not under the Proprietors of Maryland ; but has heard there were Courts held at the Town, now called Newcastle, formerly Sandhook, and at the Town now called Chester in Pensilvania, formerly called Upland, by the Dutch. *John Garretson, aged 77. [Lib. B. fol. 7. Int. 30. fol. 13.] Has known the Province of Pensilvania and the County of Newcastle, which was formerly called Sandhook, as long as he can remember, but was not well acquainted with the lower Counties, but heard the lowest County was called Whorekill, 35— Vol. XV. 546 PENNSYLVANIA AND MARYLAND and the next above it Jones's. That, for about 30 Years past the Province of Pensilvania and the three lower Counties have been represented by different Assemblies, but, before that time the Representatives were joined, and composed but one Assem- bly for the whole. That the said Assembly for the said Counties, during these 30 Years, have been elected annually, and were always held under Mr. Penn and his Descendants, and never under Lord Baltimore; That Courts of Judicature have been always held in the said Counties as long as he can remember, under Mr. Penn and his Descendants only. Jeremiah Langborne, aged 66. [Lib. C. fol. 719. Int. 30. fol. 721.] Has known Pensilvania and the three lower Counties above fifty four Years. Ever since he can remember till 1701 the Rep- resentatives chosen by the People of the said Province and Counties did compose one joint Assembly to make Laws for Government of said Province and Counties. And in 1699 or 1700 this Affirmant was chosen a Representative for Bucks County, and met the other Representatives for the Province of Pensilvania .and the Representatives chosen for the said Counties, at Philadelphia; where they made one joint Assem- bly. And that from 1701 or 1702 (to the best of his Memory) to this Time, the Representatives of the said Province and Counties have composed two distinct Assemblies. Believes there have been Annual Assemblies held for the said Counties (either in Conjunction with that for Pensilvania, or separately as aforesaid) ever since he knew the same. Never heard, or knew that any such Assemblies were held by or under any other Authority than that of Mr. Penn. Has heard and believes that Courts of Judicature have been held, from time to time in the said Counties, ever since he knew them, which as he has heard and believes were always held under the Authority of Mr. Penn. John Webster of Maryland aged 72, Defendant's Witness cross- examined [Lib. E. fol. 22. Int. 5. fol. 23.] Says there is an Assembly of the Representatives of Maryland, which is a, Part of the Legislature of that Province, but knows not, that any Persons were ever elected, in any of the three lower Counties, to serve in that Assembly. Benjamin Tasker of Maryland aged 50, Defendant 's Witness, but cross-examined [Lib. E. fol. 49. Int. 5. fol. 52.] Speaks in the self-same Words with Webster. BOUNDARY QUESTION. 547 13TH BRANCH, To prove that the very Acts of Assembly past in Lord Baltimore's own Province of Maryland do from time to time call the Lower Counties, the Territories of Pen- silvania, and tax Goods coming from thence, or carried thither, as Goods coming to or going from another distinct Province, And that those Laws are from time to time en- forced and put in Execution. Edward Chambres of Maryland aged, 51. [Lib. C. fol. 456. Int. 111. fol. 459.] Has lookt upon the produced printed book, intitled, A Collection of the Laws of Maryland, collected and printed by Authority at Annapolis in 1727. Says that book is well known in Maidyand, and received and allowed as Authority in the Courts of that Province as the Laws thereof. As to Page 49 in the Act to prevent exporting of Tobacco by land, says that by the Words (Territories thereunto) immediately following the Words Province of Pensilvania in the third Line, and again in the fifth Line, are meant the three lower Counties of New- castle, Kent and Sussex on Delaware, as he understands and believes. As to Page 157 in the Act laying an Imposition on Negroes and other Things, says that the like Words there, have the like Meaning as he understands and believes. Edward Chambres {Int. 122. fol. 462.] Has lived in Maryland 11 or 12 Years, and has held the Office of Collecter of his Majesty's Customs for the Port of Pocomoke in that Province during all that time. Is acquainted with the Trade and Navigation of that Province, and with the Duties arising 1 upon Shipping, and Customs or Duties upon Goods imported or exported into or out of that Province. Says that Ships and Vessels trading into and out of the said Province pay Tonnage of 17 d. Sterling per Ton, which is paid to the several Naval Officers out of that Province — Says that Ships and Vessels trading into and out of the said Province pay Tonnage of 17 d. sterling per Ton, which is paid to the several Naval Officers of that Province, and that 14 d. of the said Tonnage is received for the use of the Defendant, and the remaining 3d. for the use of the Governor of that Province. But Vjy what Authority the 14 d. a Ton is demanded, or received, he knows not. Has lookt on the 44th Page of the said Book of the Laws of Maryland, into the Act there for confirming to the Governor 3d. a Ton upon Ships and Vessels, And says that Ships or Vessels built in or belonging to the People of the Counties of Newcastle, Kent and Sussex; and trading into Maryland, do and have paid the said Duty ever since he came into his Office of Collector, but for how long before knows not. And has lookt on the 30tb Page, and says 548 PENNSYLVANIA AND MARYLAND the People of the said Counties who have such a seated Planta- tion as there mentioned, where they have with their Families, resided for a whole Year, within the said three Counties, or any of them, are not intitled to the Privilege of Residents in the Province of Maryland within the Meaning of that Act. And the Reason of his Belief is because such People of the said Counties live in another Government. William Rumsey of Maryland, aged 42, the Defendant's Witness being cross-examined [Lib. E. fol. 25. Int. Additional 5. and 6. fol. 26. and 28.] Says he holds the Naval Office of Cecil District under the Governor of Maryland, the Deputy Commissary's Office of Cecil County under Mr. Dulany Commissary General, the Deputy Surveyor's Office of the said County under Mr. Harris, Surveyor General of the Eastern Shore, is Receiver of the Rents of two Mannors for Lord Baltimore, under Authority from the Gov- ernor, is a Justice of Peace in Cecil County, and a Representa- tive for that County in the Assembly. And says he has lookt on the Book produced markt 3. And it's well known in Mary- land, and is generally received and allowed as of Authority in all Courts within that Province, as the Laws of that Province, and has lookt upon the 49, 73, and 157 Pages, and that by the Words (Tei'ri tor ies thereunto belonging) in those several Places immediately after the Words (as of the Province of Pensil- vania) he understands and believe the three lower Counties of Newcastle, Kent and Sussex on Delaware are meant. Note— This Man with all these Offices is one of those who gave the Opinion as a Surveyor that the Circle should be only two Miles distant, and he is one that swears to an Opinion about the Extent of Lord Baltimore's Charter. Benjamin Tasker of Marland aged 50, the Defendant's witness, but cross-examined [Lib. E. fol. 49. Int. 5. Additional, fol. 57. Int. 3. Original, fol. 51. and Int. 6. Additional, fol. 58.] Says fol. 57. That he holds the several following Offices of Trust and Profit in Maryland, viz. One of the Defendant's Council of State, Agent, and General Receiver, and Naval Officer of the Port of Annapolis, by Appointment of the Gov- ernor of Maryland, also Surveyor of the Customs by Commis- sion from the Commissioners of the Customs at London, and Mayor of Annapolis by Election pursuant to the Charter of that City, Fol. 51. That he never knew or heard the three lower Counties called by any other Names than Newcastle, Kent and Sussex, and the three lower Counties, and (as he thinks) by the Name of the Territories of Pensilvania; but whether they were called so by the Government or Legislature BOUNDARY QUESTION. 549 of Maryland, knows not. [He did not know what we were going to ask him, for] fol. 49. he has lookt upon the printed Book markt No 3. and says it's a Book well known in Marlyand, and is constantly received and allowed as Authority in all the Courts of Judicature within that Province as Part of the Laws of that Province (except such of the Laws therein contained as have been repealed, annulled or expired since the publishing the same) And he says that by the same Words, Territories thereunto belonging, in the Laws, fol. 49, 73, and 157, the three lower Counties of Newcastle, Kent and Sussex, are meant and intended. John Webster of Maryland the Defendant's Witness cross ex- amined, aged 72. [Lib. E. fol. 22. Int. 4. fol. 23. ] Has heard several of the common People dwelling in Sussex County, call the three lower Counties, the Territories of Peu- silvania. Abraham Allman of Maryland, aged 50. [Lib. B. fol. 236. Int. 112. fol. 237.] Does not know of any Bread, Beer or Flour being seized, by any Officer of Maryland, for being imported from either of the three lower Counties, all which he names. But says he himself has once paid Duties, to William Rumsey Naval Officer in Cecil County [in Maryland] for Rum imported by the Deponent into Maryland from Apoquinimink in Newcastle County. And which Duties the said Rumsey claimed as due and payable under some Law of the Province of Maryland, as the Deponent understood. John Carnon of Maryland Merchant, aged 45. [Lib. B. fol. 247. Int. 112. fol. 275.] He never heard of any Bread, Beer or Flour being seized. But has himself paid, and has known several other Persons pay, at sundry times, since 1727, several considerable Sums for Duties of Negroes and Rum imported by him and them, from Newcastle County, into Maryland. And which Duties were paid to Stephen Knight and William Rumsey. as Naval Officers of Cecil County, and due and payable or claimed by them, by vertue of an Act of Assembly of Maryland, as the Deponent un- derstood and believes. John Mac Arthur of Maryland, aged 35. [Lib. B. fol. 292. a. Int. 112. fol. 293. b.] He knows of no Commodities imported from the Lower Counties into Maryland, that have been seized in that Province ; But the Deponent formerly brought two Hogsheads and a Barrel of Rum, from Barbadoes, and landed the same at Phi la- 550 PENNSYLVANIA AND MARYLAND delphia, and carried thern into Christiana Creek in Newcastle County, and, from thence, by Land into Cecil County. That the Deponent was there informed by William Rumsey (who he believes was Naval Officer there under Maryland Government) that if the Deponent did not pay the Duty of the said Rum, he would seize the same. Whereupon the Deponent paid him the Sum he demanded ; and understood and believes it was received from him under the Authority of the Government of Maryland. Q-eorge Lawson of Maryland, aged 30. [Lib. B. fol. 302. Int. 112. fol. 303.] Heard some Rum was seized about two Years ago, as carrying from Newcastle County to the Iron Works in Cecil County, but that the affair was afterwards made up and agreed. He has at several times paid Duty for Rum which he imported into Maryland from the County of Newcastle, unto William Rumsey, as Naval Officer for Cecil County, who claimed and received the same, as the Deponent understood and believes by vertue of and under some Law of the Province of Maryland. John Scott aged 34. [Lib. B. fol. 304. Int. 112. fol. 305.] In 1735 he carried Rum from Apoquinimy Landing in New- castle County, by Land to the Head of Bohemia River in Cecil County in Maryland, and there paid a Duty of 3d. per Gallon for it to William Rumsey, Naval Officer of Cecil District under the Government of Maryland. Andreto Porter of Maryland, aged 35. [Lib. B. fol. 306. Int. 112. fol. 306.] Has heard that Duties have been several times paid for Rum imported into Maryland, from Newcastle County to William Rumsey Naval Officer of Cecil County. And this Deponent is now sued by the said Rumsey, for the Duty of Rum, he imported from Christiana Bridge in the County of Newcastle into Mary- land ; which Suit is now depending in the County Court for Cecil County. And the said Rumsey claims and receives the said Duties, by vertue of or under some Maryland Law, as the Deponent understands and believes. William Rumsey Naval Officer in Maryland, aged 42, the De- fendant's Witness, but cross-examined [Lib. E. fol. 25. Int. 7. Additional fol. 30.] Has heard and believes that Bread, Beer, Flour, Malt, Wheat, and other English Gram and Tobacco have been imported and brought from the three lower Counties since the making the Act contained in Page 73 of the Law Book, but never heard that any of them were seized by any Officer of Maryland. But has BOUNDARY QUESTION. 551 been informed that some Wheat brought from Nottingham under the Government of Pensilvania, was seized by John Ward of Cecil County. That as Naval Officer, by vertue of divers Acts of Assembly of Maryland, he has received from several Persons sundry Duties for Rum, Wine and Negroes, imported into Maryland from Newcastle County. That he brought an Action against one John Carnan in Cecil County, for trans- porting Hides from Bohemia Landing in Cecil County in Mary- land, to Apoquinomy in Newcastle County, with Intention to transport them to Philadelphia, as he apprehended from some Words spoke by Carnon, and recovered Judgment against Carnon in Cecil County Court ; but he brought a Writ of Error in the Provincial Court of Maryland, where the Judgment was reverst. The Cause of which, as he has generally heard, was that Apoquinomy was within the Province of Maryland, but has been informed, by one of the Justices of the same Court, it was upon a Fault in the Declaration. Benjamin Tasker of Maryland, aged 50, Defendant' s Witness but cross-examined [Lib. E. fol. 49. Int. 7. Additional fol. 61.] Remembers that Sir William Keith late Governor of Pensil- vania imported into Maryland in a Sloop from Newcastle, a Loading of Bread, Flour, and Beer, since the making the Act, Page 73 of the Law Book, and that Horses have been since commonly imported into Maryland from the said three lower Counties. And remembers that some Horses were seized, during the Continuance of that Act, and that they were acquitted, but for what Reasons can't set forth. Has heard that Duties, for Rum and Wines imported from the three lower Counties into Maryland, have been paid to the Naval Officers of Cecil County in Maryland, by vertue of the Act Page 157 in the Law Book. And has heard that some Hides were seized by William Rumsey, as being exported out of Maryland contrary to a Mary- land Act, and were afterwards acquitted, but for what Reasons knows not. 14TH BRANCH, Containing some General Account of the great Expence Mr. Penn was at, and how much he has im- paired his English and Irish Estates to settle this Country. You 'lhplease to remember, under this Head, that though Mr. Penn's Petition for a Grant of Lands in America is worn out, and rendered imperfect, yet there remains enough of it, as it appears more authentically in the Acts of Council thereupon in 1680.. to shew that he -petitioned for it in Recompence for great debts then due to him from the Crown. 552 PENNSYLVANIA AND MARYLAND James ^ogan, aged 66. {Lib. B. f< I. 76. Int. 11. fol. 109. The latter Part of his Answer to that Interrogatory, fol. 118.] After speaking of the Grants of Pensilvania and the Lower Counties made by King Charles and the Duke of York to Mr. Penn, he says, Mr. Penn in 1682 arrived himself in the Prov- ince and transported thither from England, a vast Colony, in thirty two Ships, at sundry times before he himself left the Country in 1684. In which Expedition, during the said William Penn's Continuance in the Country, which did not amount to the full Term of two Years, the said William Penn, as the Affir- mant is well assured from the intimate Acquaintance he had afterwards with the said William Penn's Affairs, expended not less than a Sum betwixt Six and Ten thousand Pounds Sterling. Letitia Aubrey, aged 60. [Lib. A. fol. 134. Int. 40. fol. 145.] That William Penn, the Plaintiffs Father, was in his Life- time possest and intitled to a large and considerable Real Estate in England and Ireland, but did not die possest of or intitied to all the same real Estates. For she remembers his selling about 1712 as she believes) an Estate at Worminghurst in Sus- sex of the yearly Value of 200Z. or upwards, and heard he, many Years before, sold another Estate in England, and also an Es- tate in Ireland of several Thousand Pound Value ; and has heard and believes he likewise mortgaged one or more of his Estates. The Reason of selling and mortgaging the same was, as she believes, to raise Money the better to enable him to settle and defend his Colony in America. John Page, aged 60. {Lib. A. fol, 174. Int. 40. fol. 191.] Was well acquainted with the said William Penn from 1705 till his Death, and had Opportunities of being well acquainted with his Cirucmstances and Affairs, which were in a bad Con- dition. And this Deponent can depose the same, because he was employed, as his Attorney or Sollicitor from 1707 till his Death. Knows the said William Penn was a Prisoner in the Fleet from Hillary 1707 to October 1708, at the Suit of Ford and others, for a Debt of above 12,000Z. owing from the said William Penn upon a Mortgage of Pensilvania, and it was with a great deal of Difficulty that he raised Money for discharging the same. When the Deponent first knew him, he was intitled to a con- siderable real Estate both in England and Ireland, but did not die possest of and intitled to all the said real Estates, for in 1707 he sold Part of the said real Estate in England of a consid- erable yearly Value, at Worminghurst in Sussex, to Mr. Butler since deceased, and afterwards sold a considerable Part of his real Estate in Ireland to Mr. Bernard then Sollicitor General there, and this Deponent was concerned for the said William BOUNDARY QUESTION. 553 Perm in the said Sales, which the Deponent believes were made by him for raising Money to pay his Debts. The Deponent hath heard in the Family, and believes, that before the Depon- ent's Knowledge of the said William Penn, he had sold or mort- gaged some considerable Estates in England, which were his first Wife's Inheritance, for raising Money to enable him to carry on the Plantation ofr his said Province of Pensilvania. Ferd. John Paris [Lib. A. fol. 195. Int. 40. fol. 330.] Never had any great Acquaintance with the said William Penn or with his Circumstances or Affairs, during his Life time; but from 1722, became acquainted with and transacted Business in a great many Affairs for Springett Penn, Grandson and then Heir at Law to the said William Penn, down to the Time of Springett's Death in 1730; and immediately after was employed for William Penn junior, who upon his Brother Springetts Death, became Heir at Law to the said William Penn, and has been concerned in a great Number of Affairs for the the said William Penn junior, till 1739, that he went to reside in Ireland. And by reason of being so employed for the Heirs at Law, has had frequent Opportunities and Occasions to look into the Deeds and Titles of the Estates in England and Ireland, which appeared to have been enjoyed by Proprietary Penn, whereby the Deponent plainly perceived that after 1680, he made considerable Mortgages and Sales of his Estates in Eng- land and Ireland, but to what Value can't say, nor how or in what manner he applied the Money theraby raised, but was informed by Springett Penn in his Life time that the Estates, sold off by the said William Penn amounted to a great yearly Value, and as near as Deponent remembers, he mentioned that such Estates so sold off in Ireland only were then of the Value of 1200Z. per Annum, or thereabouts. John Jefferys aged 60 [Lib. A. fol. 63. Int. 40. fol. 66.] Was acquainted with the said William Penn, and served him as Secretary for two Years, from 1705 to 1707, whereby he had some Opportunities of being acquainted at that time, with his Circumstances and Affairs, which, as the Affirmant believes, were pretty much perplext. Says the said William Penn was then possest of, or intitled to, a considerable real Estate in England in Kent and Sussex, and also in Ireland ; But, while the Affirmant was his Secretary, or some time afterwards, the said William Penn did, as the Affirmant understood and be- lieves, sell or dispose of his Estate at Worminghurst in Sussex, which, as he remembers, was computed at about 300Z. a Year, and also part of his Estate in Ireland. 554 PENNSYLVANIA AND MARYLAND John Jefferys aged 60. [Lib. A. fol. 3. Int. 41. fol. 68] Whilst he served the said William Perm as his Secretary, he was privy to several of his Accounts; and in or about 1706, the said William Penn employed and directed the Affirmant to write out and state an Account, from Particulars he gave the Affirmant for that Purpose, of the Costs and Charges of his Affairs in Pensilvania and the Profits arising therefrom ; where- by it appeared and was stated, that the Province of Pensilva- nia and the three Lower Counties of Newcastle, Kent and Sus- sex, stood indebted to the said William Penn in the Sum of 64, 0002 and upwards, over and above the Profits he had received therefrom. 15TH BRANCH, That the now Plaintiffs have possest ever since 1726. Samuel Preston aged 75 [Lib. B. Fol. 312. Int. 16. Fol 324.] Says he has lived in Philadelphia ever since 1726, and there- fore knows that the present Plaintiffs have been in Possession of the three lower Counties of Newcastle, Kent and Sussex ever since that Time, as Proprietors and Landlords of the same. 16TH BRANCH, Of the Number of Persons settled in each of the three Lower Counties. Thomas Noxon, aged 40, [Lib.- C. Fol. 488. Int. 124. Fol. 525. Further on Fol. 527. J Says he lives in the County of Newcastle, and is well ac- quainted therewith, and also with the Counties of Newcastle, Kent and Sussex. That the County of Newcastle is very thick settled, the County of Kent well settled, but not so thick as Newcastle, and the County of Sussex not quite so thick as Kent, there being great Quantities of poor Land in Sussex County. Says there is at least, 1400 Taxables in the County of Newcastle, which he computes and believes make about an Eighth Part of the Inhabitants in that County, [8 times 1400 make 11,200] And that there are two Churches and two Chapels, and also 8 Dissenting Meeting Houses, in the County of Newcastle; and a publick Court-house, and a Prison, and a Market-house, in the Town of Newcastle. And two Market Houses in Wilming- ton in the said County of Newcastle. Benjamin Chew aged 18 [Lib. C. Fol. 772. Int. 126. Fol. 773.] Knows Part of Newcastle County, and lives in Kent County, but does not know Sussex County. That Newcastle County is BOUNDARY QUESTION. 555 pretty thick settled, but Kent County not so thick settled. That he acted last Year as Deputy Clerk of Kent County, and, from a Calculation he made upon a particular Occasion, from the Levy Lists, it appeared there were 1025 Taxables in the same County. That he does not know what Proportion the Number of Taxables bears to the Number of all the Inhabitants of that County, but has heard People, that he esteemed of better Judgment than himself, say they judged they were about 8 or 10 to one [only 8 times 1025 make 8,200]. Does not know what Number of Churches or Meetings there are in that County, and knows of no other publick Buildings therein but a Court- house and a Prison. * William Till aged A3 [Lib. C. Fol. 740. Int. 126. Fol. 741.] Knows the Counties of Newcastle, Kent and Sussex, and formerly lived many Years in Sussex County, but now lives in Philadelphia. Says the said Counties are very well settled. And believes there are about 600 taxable Persons in the County of Sussex, which he believes is about one seventh Part of all the Inhabitants in Sussex County, [7 times 600 make 4200] And that there are in that County, one Church and two Chapels, all under the Care of one Minister of the Church of England, two Presbyterian Meeting Houses, and two Quakers Meeting Houses, and the other publick Buildings are a Court-house and Prison in that County. 17TH BRANCH, Of the very strange Way of granting Out Lands by the Maryland Officers; and the Consequences which they insist arise from the Persons locating such Grants. Benjamin Tasker Defendant' s Witness, but cross examined, aged 50 {Lib. E. Fol, 49. mh Int. Fol, 53. ] That he is at present Agent for the Defendant, and General Receiver of all his the Defendant's Rents, Rights and Dues in the Province of Maryland. The same [21st additional Interrogatory, Fol. 54.] That the Method for authorising the Defendant's Surveyors for laying out Lands is first, to obtain a Certificate to the Judge of the Land Office, from the Defendant's Agent, that his Dues are paid for the Quantity of Land desired, and upon that, a Warrant is granted, in the Land Office, directed to a Surveyor to lay out the Land applied for, and after such Surveyor has made his Return upon such Warrant to the Land Office, and the same is examined and approved, a Patent from the Land Office is thereupon granted: believes that such Surveyors, 556 PENNSYLVANIA AND MARYLAND sometimes do, and sometimes do not actually run out the Lines of such Surveys, but always do mark or certainly describe, one, or more of the Boundaries of such Lands so by them surveyed ; and the said Surveyors always make their Returns upon such Warrants, as if they had actually run out the several Lines. Griffith Beddoe, the Defendant's Witness, cross examined, aged 39 [Lib. E. Fol. 18. Int. 45. Fol. 19.] That there are Grants of Lands recorded in the Land Office of the Province of Maryland, which Lands are expressed by those Grants to lie on the West Side of Delaware Bay, and as he is informed lie in the three lower Counties on Delaware; and other Grants of Lands expressed to lie on Christiana Creek recorded in the said Office, which he is also informed, lie with- in the same Counties; the Names of all which Lands, and of the Persons to whom the Grants were made, do appear in the Exhibits on the Part of the Defendant, numbered (4) purport- ing to be Extracts or Copies of several Grants or Patents of Land recorded in the said Land Record Books of the Province of Maryland. 'The same -[Int. 47. Fol. 21.] That he knows not, nor has he seen, in the Entries of the Land Office of the Province of Maryland, that the Proprietors of Maryland, or their Agents, denied to grant Warrants or Pat- ents for Lands, because such Lands lay, as were supposed to lie, within the Province of Pensilvania, or the three lower Counties on Delaware. Note— They may according to this Method of Granting, grant out even Philadelphia it self, or all Pensilvania, if they set at home and invent imaginary Surveys in a Chim- mey Corner ; and then, the Entries of these Grants are to be topt upon us, as real Grants made by the Defendant, when there is not a single Instance of his having fairly settled any one spot in the Lower Counties. James Logan aged 66 [Lib. B. Fol. 76. Int. 18. Fol. 125.] Has conversed divers Times with Philemon Lloyd, who was Agent to the Lord Baltimore, Proprietor of Maryland, on the Subject of granting Warrants at large for Lands to be located at the Pleasure of the Purchaser ; and on his blaming the Conduct of some of that Province for their pretending to take up lands far within what had always been reputed the Province of Pensil- vania, and, at one particular Time, upon this Witness's mention- ing that Matthias Vanbebber, and one of Henry Hollingsworth's Family about 1716, had presumed to survey Lands towards the River Susquehannah, as far Northwards, as the City of Phila- BOUNDARY QUESTION. 557 delphia, which had always been accounted by the People of Pen- silvania not less than 20 Miles within their well grounded Claims, which Practice divers others likewise afterwards at- tempted, the said Philemon Lloyd alledged in Excuse that those Things were done without the Knowledge, much less the Direc- tion of any concerned in the Land Office of Maryland ; for that, their Warrants were at large, for any Lands whatsoever, that were vacant and unappropriated before, within the Bounds of that Province; and it was entirely at Choice of the Purchasers of such Warrants to locate them where they thought fit, at their own Risque ; but the present Governor of Maryland, Sam- uel Ogle, at a Meeting of the Commissioners (of which this Wit- ness was one) appointed by the Proprietors both of Maryland and Pensilvania, for settling the Boundaries pursuant to the Articles of May 1732, which was held at Newcastle on 80th October in the said Year and the three following Days, upon discoursing the aforementioned Subject of Warrants at large, strenuously insisted that the Division Lines, tho' agreed on, not being yet run, such Warrants issuing from the Office of Maryland, wherever they were located, make the Land, on which they were laid, a Part of the Province of Maryland. Samuel Preston aged 75 [Lib. B. fol. 312. Int. 18. fol 324] That at a Meeting of the said Commissioners in February 1732, upon some Conversation concerning Encroachments made by the Inhabitants of Maryland and Pensilvania, Samuel Ogle, then Lieutenant Governor of Maryland, said, That the Land Office in that Province was open, and any Person applying to the said Office, and complying with the Conditions obtained a Warrant for taking up Lands in the Province of Maryland, which he might locate where he pleased, the Boundaries between the two Provinces not being known; whereupon Andrew Ham- ilton, one of the Plaintiffs Commissioners, asked the said Ogle if the Person obtaining such Warrant should execute it, by an Officer of Maryland, three or four Miles above, or to the North- ward of Philadelphia, Whether the Person obtaining the same Warrant would thereby, become a Marylander? The said Samuel Ogle answered, that such Person must be looked upon as his Lordship's Tenant, or Words to that Effect. * James Steel [Lib. C. fol. 559. Int. 18. fol, 638. ] That at a Meeting of the Commissioners appointed to run the Lines on the first or second of February 1732, on some Con- versation between the Commissioners for Maryland and Pensil- vania touching some Settlements made on the West Side of Susquehannah River under Maryland Warrants, Mr. Ogle, one of the Maryland Commissioners [and Governor] then said that 558 PENNSYLVANIA AND MARYLAND Warrants for surveying Lands in Maryland were granted at lai-ge, and that the Persons who took out, or were possest of such Warrants, had it in their Option, and might locate such Warrants where they pleased : The Pensilvania Commissioners answered that, according to such Position, such Warrants might be located in the Neighbourhood of Philadelphia, or to the Northward ot it : The said Ogle replied, that in case such Warrants should be so located, the Persons locating the same ought to be esteemed Lord Baltimore's Tenants, until the Divi- sion Lines between the Provinces were actually run and settled. A most mischievous, and unheard of, Doctrine in America, purely to beget eternal Contests, first invented and closely observed by this Governor Ogle, who has really been the Incendiary, that has defeated the salutary Agreement made between the Parties, as we shall see, even from his own Evidence, by and by. 18TH BRANCH, Of the notorious Scituation of Pensilvania and the lower Counties, both upon one and the same West Side of the River and Bay of Delaware, and of my Lord's going personally, by Land, from the one to the other of them in 1733, which, neverthless, he has been pleased to swear, in his Answer, are separated by, and lie on different Sides of, that great Bay and River. James Logan, aged 66 [Lib. B. fol. 76. Int. 7. fol. 91.] Has been acquainted with Pensilvania, Three Lower Counties, and 'the Province of New Jersey, above 30 "iears; and it is notorious that Pensilvania and the said Counties lie on the West Side of Delaware Bay and River, and the Province of New Jersey on the East Side thereof. Samuel Preston aged 75 [Lib. B. fol. 312. Int. 121. fol. 450. 1 Has frequently travelled, by the Common Road, from New- castle Town to the City of Philadelphia, which is esteemed about. 36 Miles, and there is not any Bay or River that divides the Province of Pensilvania from the County of Newcastle ; and verily believes no considerate Man, who travels that Road, can so far mistake, or be ignorant of the Scituation of the said County of Newcastle, as to believe it to be on a different Side of Delaware Bay or River from the Province of Pensilvania, because they are apparently on one and the same Side thereof. Edward Chambres of Mai yland aged 51. [Lib. C. fol. 456. Int. 121. fol. 467. ] In totidem verbis. BOUNDARY QUESTION. 559 William Beckett aged 43 [Lib. B. fol. 277. Int. 121. fol. 277.] The Defendant's own Witness, cross examined, says the same thing exactly, but in stronger Terms ; for he thinks no Man in his senses, that rides that Journey by the Common Road, can be ignorant of the Scituation, or believe them to be of differ- ent Sides. Gideon Griffith aged 45. [Lib. B. fol. 279. Int. 121. fol 279. ] In the same Words as Mr. Beckett. George Ross, Clerk, aged 59. [Lib. B. fol. 308. Int. 221. fol. 308.] Another of the Defendant's own Witnesses, cross examined, says the same thing as Beckett and Griffith, in totidem verbis. Abraham Taylor aged 37 [Lib. C. fol 477. Int. 121. fol. 467.] In totidem verbis. Edward Chambres aged 51 [Lib. C. fol. 456. Int. 7. fol. 457.] Has been acquainted with Pensilvania, and the lower Coun- ties, above 20 Years, and has seen the Province of New Jersey ; and says the Province of Pensilvania is not contiguous to the Province of New Jersey, being separated therefrom by the River and Bay of Delaware which run betwixt them ; and that Pen- silvania lies on the West, and New Jersey on the East Side of the said Bay and River. And Pensilvania and the lower Coun- ties lie on one and the same Side, viz. the West Side of the said Bay and River. William Rumsey of Maryland aged 42, the Defendant's Witness, cross examined, [Lib. E. fol. 25. Int. 1. additional fol. 25. ] Says the River Delaware lies between Pensilvania and New Jersey. And that the lower Counties and the Province of Pen- silvania lie on the West Side of the Bay or River of Delaware. Benjamin Tasker of Maryland aged 50, Defendant's Witness, cross examined, [Lib. E. fol 49. Int. 1. Additional fol. 49.] Says with great Difficulty, at last, that the Bay and River of Delaware separate Pensilvania, from that Part of New Jersey which he is acquainted with; and that the Province of Pen- silvania, and the three lower Counties, as he understands, lie on the West Side of the Bay and River Delaware. George Ross, Clerk, [Lib. B. fol. 308. Int. 120. fol 310. ] The Defendant's own Witness, cross examined, swears that Lord Baltimore came to the Town of Newcastle by Land, in Day-time, in 1733, when the Deponent saw him, That he then walked about that Town, stayed there one Night and Part of the next Day. That the Defendant then rode from thence up to Chester Town in the Province of Pensilvania, where this Deponent waited upon him, and from thence went as the De- ponent was informed and believes to the City of Philadelphia. 560 PENNSYLVANIA AND MARYLAND Gideon Griffith [Lib. B. fol. 279. Int. 120. jol. 290.] Confirms the same. Abraham Taylor [Lib. C. fol. 477. Int. 120. fol. 487.] Has heard and believes that Lord Baltimore was at the Town of Newcastle on Delaware in the beginning of the \ 7 ear 1733, and that he came from thence by Land into the City of Philadelphia, where the Deponent saw him, and he continued some Days. 19TH BRANCH, Of the Treatys in Order to, and the drawing, perusing and settling the Draught of, the Agreement, the Map, and Mr. Senex's written Opinion, * * * * * and the Execution, by the Party s, of the Agreement in Question, and of the Commissions for running the Lines pursuant thereto. Ferd. John Paris [Lib. A. fol. 195. Int. 16. fol, 199.] Says, that he became well acquainted with, and known to, the Defendant, at the time, and in the manner following; In 1725, the Earl of Sutherland having made Application to the Crown, relating to the three Lower Counties, there were several Attendances, or Hearings thereon, before his Majesty's then Attorney Greneral ; at which Hearings such Application of the Earl of Sutherland was opposed, not only by the Mother of the Plaintiffs, and also by Springett Penn as Heir at Law, then, of Proprietary "William Penn, but also by the now Defendant; on which occasion the Deponent acted and appeared, not as Solici- tor for the Plaintiffs, or their Mother, but as Solicitor for another Branch of that Family, namely for the said Springett Penn; and in or about 1729 and 1730, this Deponent became further known to the Defendant, by having often attended him on sev- eral Acts of Assembly past in his own Province of Maryland, and on Complaints from thenee, of the Clergy there, or other Persons relating to Matters arising in his said Province of Maryland; and that in 1730, this Deponent was appointed by the Assembly of Pensilvania to be their Agent here, and, as such, publickly acted, in London and Westminster, in the publick Affairs of Pensilvania. And saith that about the be- ginning of 1731, the Deponent accidentally met the Defendant, and falling into Discourse, the Defendent took occasion to mention to the Deponent, that both himself and the Proprie- tors of Pensilvania greatly suffered, from some Disputes which had for a long time subsisted between them, and their Families, and that he wished they were accommodated, or to the like Effect, as near as the Deponent can recollect ; whereto the De- BOUNDARY QUESTION. 561 ponent answered, he had heard a good deal of these old Dis- putes, and that it did seem to be high time they should be composed, or to such Effect ; and acquainted his Lordship that if he would give leave, he the Deponent would acquaint Mr. Penns (who the Deponent believed would be very willing to accommodate that Matter) with what his Lordship had said, or to such Effect; and his Lordship, to the Deponent's Appre- hension, then expressed his Desire, that the Deponent would mention to them, what had so passed between his Lordship and this Deponent. Saith that ne the Deponent was, about that time, and for a considerable time before, had been endeav- ouring to compose a great Difference between William Penn the Younger, (who was then upon his elder Brother Springett Penn's Death, become Heir at Law of Proprietary William Penn) and the now Plaintiffs John, Thomas, and Richard Penn, about Proprietary William Penn's Will, and about his American Estate; and the Deponent apprehending then, that an Agreement, between the Lord Baltimore and Mr. Penns might facilitate the Conclusion of an Agreement between the different Branches of Proprietary William Penn's Family, and might procure better Terms from the Plaintiffs to the said Wil- liam Penn junior, (who was then this Deponent's Client) for con- firming Proprietary William Penn's Will and Disposition of his American Estate, the Deponent was very glad therefore of an Opportunity to promote that other Agreement with Lord Bal- timore ; and thereupon the Deponent did, very soon after such Discourse had past betAveen the Defendant and the Deponent, take an Opportunity to acquaint the Plaintiffs John and Thomas Penn, and also the Deponent's then Client the said William Penn junior thereof; who declared on their Parts, that they were satisfied how much it was the common Interest of all Parties to settle those old Disputes with the Lord Balti- more; In a short time after which, there was a Meeting had, between the Defendant, and some, if not all, of the now Plain- tiffs, at the Ship Tavern near Temple-Bar, on or about 3d June 1731, at which Meeting the Deponent was present ; and after the Occasion of that Meeting had been opened, and some Discourse had between them, one of the now Plaintiffs (and to the De- ponent's best Remembrance it was the Plaintiff Thomas Penn) produced a small written Map of part of Pensilv;mia and Mary- land, and of some adjacent Parts; and the Defendant, on his part, produced another written Map of the like Places, upon comparing of which two Maps together, they seemed to have in the descriptive Parts of the Places no material Difference that the Deponent could perceive, which Map produced by the 36— Vol. XV. 562 PENNSYLVANIA AND MARYLAND Plaintiffs as aforesaid, is the the Map markt Par. (No 1.) now produced, and each of the said Maps had, then, a Circle or part of a Circle, drawn round the Town of Newcastle. And after a good deal of Conference and Discourse, of the Lord Baltimore's Claim to the three Lower Counties of Newcastle, Kent and Sus- sex, and also, how high, or how far North, his Head-Line of his Province of Maryland should extend, the Lord Baltimore with a Pencil and Rule, drew, upon his said Map, a strait Line from a part at the Edge of the Land, which was there called Cape Hinlopen, to the Westward a-cross a good Part of the Peninsula, into the Middle, or thereabouts, of the Peninsula, and then, drew another strait Line, Northwards, up to the Top of the Peninsula, and above every Part of the Peninsula, and into the main Land or Continent, (as there described) and until it went, by and above, some part of the Circle : and then he drew another strait Line, Westwards, across the River at the Head of Chesapeak Bay, (at the upper Point of the said second Line) as and for what he then insisted should be his Boundary: and it was then declared by the said Lord Baltimore, that those two first mentioned Lines would leave the three lower Counties to Mv. Penns ; and that the third Line above-mentioned should be the Head Line, or North Boundary of Maryland, and the Foot Line or South Boundary of Ponsilvania, or to some such Effect : Saith that one of the now Plaintiffs (and to the Deponent's best Remembrance, it was the Plaintiff John Penn) then, with a Pen, drew Lines, upon his Map, how he desired the said Lines should run; which Lines so drawn roughly by the Plaintiff, were much like those drawn by the Defendant, save that the Plaintiff made the general Foot-Line, or South Boundary of Pensilvania, (and consequently the gen- eral Head Line, or North Boundary of Maryland) to be lower, or more Southerly, than the Lord Baltimore had done; where- upon a very long Debate and Argument arose, between the De- fendant and the Plaintiffs, at what Distance South from the City of Philadelphia, the Foot Line of Pensilvania, or the Head Line of Maryland should run? And the Lord Baltimore at first, (and always so far as the Deponent knows) persisted that such last mentioned Line should be only at 15 Miles Distance below the Parallel, or South of Philadelphia. And the Plaintiffs, or such of them as were at that Meeting, then insisted that that would be too much, or too far, above the Peninsula, and that the North Bounds of Maryland should beat 20 Miles Distance, below the Parallel, or South of Philadelphia; And the Depon- ent well remembers that the Terms and Proposals for an Agree- ment did, then, proceed from the Lord Baltimore himself, but no Agreement, was, at that time, concluded between the Parties ; BOUNDARY QUESTION. 563 but both sides took time to consider of it. And saith tbat after such first Meeting, the Deponent was present at a second Meeting, between the Defendant, and some, if not all; of the Plaintiffs, upon or about the 11th June 1731, when a very long Conference was had, between them, whether the Head or North Line of Maryland should be so high, as to be within 15 Miles of Philadelphia, or should be at some greater Distance South of Philadelphia? And the Lord Baltimore then insisted that it should be within 15 Miles of Philadelphia, otherwise, he would not agree, but would take some adversary Measures, or to that Effect; and such of the Plaintiffs as were then there not at all agreeing to the Lord Baltimore's said Proposal and Demand, at that time, the Treaty broke off. And saith that, some time afterwards, the Treaty was again resumed in the following manner, for that the Deponent on or about 6th July 1731, did meet the Plaintiffs John Penn and Thomas Penn, and the said William Penn junior, to consider of a Letter which the said William Penn junior then produced and shewed this Deponent, and said he had received from Lord Baltimore, which Letter intimated that his Lordship had preferred some Petition to his Majesty; whereupon, on or about 9th July 1731, the Deponent did meet the Plaintiffs John Penn, and Thomas Penn, and the said William Penn junior, or some of them, again, together with one Mr. Simon Clements a Relation of theirs, since deceased, in order to prepare an Answer, on the Part of Mr. Penns to that Letter, and to be sent to Lord Baltimore; and he then saw such Letter said to be received by the said William Penn junior, from the said Lord Baltimore, and hath since made very diligent Enquiry after the same, but that the said William Penn junior, having since released to the Plain- tiffs, and having lived for several Years last, past as the Deponent assuredly believes, in Ireland, the Deponent cannot obtain the same, or any Account thereof, but is very apt to believe the same is lost or mislaid, and not now in being; and verily believes that a written Answer to such Letter was sent to, and received by the Defendant the Lord Baltimore. For that, on or about 20th of the same July 1731, the Deponent was present at a third Meeting, at the Bedford-Head Tavern, near Covent- Cfarden, with the Defendant the Lord Baltimore, and (accord- ing to the Deponent's best remembrance) every one of the now Plaintiffs, and also with the said William Penn junior, then Heir at Law of Proprietary William Penn, at which time very great Debates and Arguments were used, between them, at what Distance, South of Philadelphia, the Head or North Line of Maryland, or the Foot or South Line of Pensilvania, should run? Whether so near as within 15 Miles of the Parallel of 564 PENNSYLVANIA AND MARYLAND Philadelphia, (as the Lord Baltimore had before insisted) or, at some, and what greater Distance; and the now Plaintiff John Penn did then insist it should run lower, namely at 18 Miles, South of Philadelphia, afterwards at 17 Miles, and then contended, to the Deponent's now best Remembrance for half a Mile, but the Lord Baltimore appeared to be fixed and deter- mined and declared he would absolutely have it run within 15 Miles of Philadelphia, or else would not agree, or to that Effect ; insomuch that the Deponent apprehended, the Treaty would then again have broken off; whereupon the Deponent went aside, with the Plaintiff John Penn, out of the Room where the Company was met, and represented to him that, as his own Family Difference with his Father's Heir at Law, was then, in a manner agreed upon, and as there had been continual Disputes and Contests between his own Family, and Lord Baltimore's Family, for about 50 Years then past, about Boundaries, and about the said three Lower Counties, the Deponent really thought, it was for the Plaintiffs Benefit, to heal all those old Disputes together, and to accept Lord Baltimore's Proposal, and put all their Affairs at Peace, or to some such Effect ; and the Deponent used such Arguments as seemed proper on that Occa- sion. Whereupon the Plaintiff John Penn and the Deponent returned into the Room again, where the Company and the said Lord Baltimore was, and, after some further Endeavours then used, on the Part of Mr. Penns, to induce Lord Baltimore to agree to run his Head Line, at more than 15 Miles South of Philadelphia, (but which his Lordship absolutely refused) it ; was at length, finally, but verbally, agreed between them, at that Meeting, that the said Head Line of Maryland, should bean East and West Line, to run 15 Miles below, or South of the Parallel of Philadelphia, and the Parties congratulated each other thereon ; and another Meeting was agreed to be had on or about the 22d of the same July, to consider how to carry such Agreement into Execution. And saith that, accordingly, on or about 22d of the same July 1731, the Deponent was present, at a fourth Meeting, between the Defendant, the Lord Balti- more, and some if not all of the Plaintiffs, (but believes all the Plaintiffs were present thereat) at which time the Lord Baltimore produced a Paper, which he said he had written or drawn up, to express the Parties Agreement; and which he also said, must be drawn at length, or to that or the like Effect, and such Paper was then read over twice or thrice (as the De- ponent remembers.; And the Deponent on the behalf of Mr. Penns desired to have the same, or some Copy thereof, but the Lord Baltimore declared, that he had no Copy thereof, but gave it to Mr. John Sharpe his Sollicitor, who was then present, BOUNDARY QUESTION. 565 and directed him to give this Deponent a Copy of the same; Accordingly a few Days afterwards the Deponent received, from the said Mr. Sharpe, the Paper now produced, markt (Par. No 2.) as and for a true Copy thereof ; and the said Mr. Sharpe and the Deponent then examined the same therewith, and Mr. Sharpe kept the Original, and delivered to this Deponent the said now produced Copy. And saitn that he afterwards went to the said Mr. Sharpe' s House, and attended on him several times, in Order to draw up in Form, and settle the Agreement, to be afterwards executed between the Parties, and particularly upon or about 16th August 1781, the Deponent delivered over to the said Mr. Sharpe, the Defendant's then, and present Sol- licitor, the Original Paper Draft of Articles of Agreement (but not including the Additional Clauses which are now thereto) now produced, markt (Par. No 3.) of which time, as well as of several other times spoken to in his Deposition to this Interrogatory, the Deponent is the better able to depose, after this length of Time, from some Notes which he kept thereof in order to draw out his Bill for his Time and Attendances. And the Deponent is the rather certain nearly as to th« Time now last mentioned, from an original Letter to the Deponent (of the said Mr. Sharpe's Hand-writing which Deponent is well acquainted with, for that the Deponent hath often seen him write) now produced and markt Par. No 4. and dated 19th August 1731, wherein, he writ to this Deponent that he had perused the Draft of the Agreement between Lord Baltimore and Messrs Penns, and thought the same perfectly right, and that he had sent it that Night to Lord Baltimore for his perusal, or to such Effect, as by the said produced Letter to which the Deponent refers. Saith, that he, on several Days, after the said 19th of August, went, and sent to, the said Mr. Sharpe's House, in order to forward the settling the said Draft, until on or about the 23d of September 1731. when the said Mr. Sharpe informed this Deponent, that Councellor Wynne then had the said Draft laid before him, which said Councellor Wynne (now Mr. Serjeant Wynne) the Deponent had before seen, acting for the Defendant, relating to his Affairs in Maryland, and accord- ing to the Deponent's best Remembrance, the said Mr. Wynne had been present, on the Part of the Lord Baltimore, at one at least of the Meetings before spoken of ; and after some farther Attendances on the said Mr. Sharpe he acquainted this Depo- nent on or about the 28th of October 1731, that he had got back the said Draft. But the Deponent did not obtain the same, so as to see what Alterations were made, or proposed to be made therein, until on or about 8th November 1731. And, upon the Deponent's obtaining the said Draft back again, this Deponent 56G PENNSYLVANIA AND MARYLAND found the same endorsed on the Outside, with a Direction or Desire to Mr. Wynne to peruse and settle that Draft, on behalf of my Lord Baltimore, and with a Note or Memorandum, that my Lord desired those Articles might be as short and general as possible, in regard the same must be made publick in both the Provinces, and signed Sharpe Sollicitor pro Lord Baltimore, in such manner as now appears thereon. And which said Indorse- ment, Direction, Note and Signing, this Deponent assuredly be- lieves was and is of the said Mr. Sharpe's own proper Hand- writing (which this Deponent was and is well acquainted with as aforesaid. ) And the Deponent saith that the said Draft when it was so returned back, had in the Margin of the 9th Sheet or Folio thereof, these Words written, viz. (The Miles throughout to be expressed English Statute Miles) which said Words so writ- ten there, the Deponent assuredly believes were, and are, of the said Mr. Sharpe's Hand-writing; and also several other Notes and Words had been then added and written (by the said Mr. Sharpe, as the Deponent believes) upon several other of s the Sheets ; and the said Draft had likewise the several other Altera- tion and Additions then made thereto by writing, seeming to be writ with a Pencil, and which the Deponent did then and still doth apprehend and believes had been made by the said Councellor Wynne. Of which Alterations (more especially that for expressing the Miles, to be English Statute Miles) this Depo- nent acquainted the Plaintiffs, or some of them, and had divers Meetings with them thereon, and they appeared to be greatly dissatisfied therewith, declaring that the Miles mentioned in the said Draft, ought to have been Geographical Miles or Minutes, and not English Statute Miles ; and that an Alteration, so as to make them English Statute Miles, was entirely to their Prejudice, and in Lord Baltimoi'e's Favour, and would extend his Bounds, in those Places where Miles had been mentioned, near about a sixth Part more than he himself had ever demanded or to some such Effect, and they shewed apparent Unwill- ingness to agree thereto ; And saith that he afterwards attended the said Mr. Sharpe thereon and objected to that proposed Alteration, in particular, and on or about 5 January 1731, a Meeting was had, between the Defendant, and two, if not all three, of the Plaintiffs, at the Lord Baltimore's House in Gros- venor Square, when after much Debate, the now Plaintiffs, or so many of them as were there at time, were prevailed on to consent to such Expression of English Statute Miles; and the said Draft of Agreement, or great part thereof, was then read over, and many Debates thereon had, and the said Lord Balti- more did then propose that some Mathematician should be con- sulted, upon the Draft of the said Articles; and it having been BOUNDARY QUESTION. 567 mentioned, in the said Draft that some Map or Plan of the Place in Question, was, or was to be, in some manner or other, annexed to, or referred to, in the Articles of Agreement, Debates arose, between such of the Plaintiffs, as were then there (which the De- ponent believes were all three of the Plaintiffs,) and the De- fendant the Lord Baltimore, which of their two Maps or Plans should be engraved, so as to be referred to in the Articles of Agreement ?'and also who should be the Person that should engrave the same? And the Deponent well remembers, that some one of the Plaintiffs proposed that their Map or Plan should be engraved for that Purpose, and that a Person (whose Name this Deponent doth not now recollect, and who lived somewhere in the Strand) should engrave the same, but the Lord Baltimore insisted that his own Map or Plan should be engraved, for such purpose, and he named and desired that another different Person, one Mr. Senex of Fleet street (who is now lately deceased, as the Deponent believes) should engrave his the said Lord Baltimore's Map or Plan, and also, should examine the said Draft of the Articles ; and accordingly, it was, in the Deponent's presence and hearing, agreed between the Lord Baltimore and such of the Plaintiffs as were there, that the Lord Baltimore's Map or Plan should be the Map or Plan, that should be engraved, and that the said Mr. Senex (who had been named by the said Lord Baltimore) should engrave the same; and that Mr. Senex should also consider, and give his Opinion upon, the said Draught of the said Articles of Agree- ment or to that Effect; and, accordingly, the Deponent was present, with the said Mr Sharpe the Lord Baltimore's Sollicitor, when the said Draught of the said Articles of Agreement, was delivered to the said Mr. Senex. And the said Mr. Sharpe de- livered to the said Mr. Senex the Map or Plan which this De- ponent did then, and doth still believe, was the very Plan which had beenmarkt by the Lord Baltimore as aforesaid, and the said Mr. Sharpe and this Deponent concurred in desiring the said Mr. Senex to consider the said Articles, and to give his Opinion for the Satisfaction of their respective Clients, upon the same, and upon the Propriety of the Terms and Ex- pressions which were made use of therein, and also that the said Mr. Senex would engrave the Map or Plan so delivered to him by the said Mr. Sharpe. And the Deponent saith that, after, some few Days time, the said Mr. Senex did verbally declare his Approbation of the Terms made use of in the Draft of the said Agreement, but the Deponent and the said Mr. Sharpe, or one of them, seemed rather desirous that he should give his Opinion thereon in Writing, or to some such effect, and which he atterwards did to the said Mr. Sharpe, and to this Deponent ; 568 PENNSYLVANIA AND MARYLAND and that Copy of his Opinion which he delivered to this De- ponent, this Deponent hath kept in his own Custody ever since, (until lately, that it was left with the Clerk, who examines this Deponent, as an Exhibit in the Cause) And it is the Paper markt Par. (No 5) now produced. And this Deponent did and doth apprehend, such Paper to have been of the said Mr. Senex' s Hand-writing, but doth not know the same to be so. And that the said Mr. Senex declared he would go about engraving a Plate of the Map or Plan which had been so left with him by the said Mr. Sharpe; and after some time, the said Mr. Senex produced a Copper-plate, and also a Proof-sheet, as printed off from the same, the Lines of which the Deponent did examine as carefully as his Capacity Avould allow him, with the said written Map or Plan then in the said Mr. Senex his Custody, and found the same to agree together; And after such time the Deponent knows that Mr. Sharpe had in his own Custody again the said written Map or Plan, which had been so left with the said Mr. Senex, for engraving such Plan; And Mr. Senex did, at the Deponent's Request, some considerable time afterwards, stamp off some of the Prints from the Copper-plate, on the Margin of the Parchment, whereon the Articles of the Agreement were to be (and afterwards were) engrost for Execution Saith that, at the time the said Draft of the Articles was first delivered over, although the now Plain- tiffs and their Nephew William Penn iunior, had very near agreed upon Terms to purchase a Release from him to them, yet. such Release from him, was not actually obtained from him, in Form (to the Knowledge or Belief of this Deponent.) And therefore in August 1731, when the said Draft of the before mentioned Articles was so delivered over to the said Mr. Sharpe, the said William Penn junior was named therein as and for a Party to the said Articles, but after that time, and while the forementioned Matters were passing, the said William Penn junior did (to this Deponent's certain Knowledge) release to his Uncles, the now Plaintiffs, or to some of them generally the said Province of Pensilvania and Counties of Newcastle, Kent and Sussex, on which Account as that Matter had inter- vened while the said Draft of the Articles of Agreement was under Consideration as aforesaid, some of the now Plaintiffs, or the Deponent on their behalf desired, that then the said William Penn's Name might be struck out, and he not longer continued as a Party to such Articles of Agreement, which was agreed to on the part of the Lord Baltimore, and his Council, but the Lord Baltimore, or his Council, Mr. Wynne, afterwards insisted that the said William Penn junior, and also some other Persons Devisees of certain Quantities of 10,000 Acres of Land, BOUNDARY QUESTION. 569 under Proprietary William Perm's Will, should by an Instru- ment, to be endorst on the Back of the said Articles of Agree- ment, declare their Consent to such Agreement between Lord Baltimore and the now Plaintiffs, and accordingly a Draft of a Deed-Poll (for an Endorsement) to some such effect, was pre pared by the Deponent, and was settled by the said Counsellor Wynne, to some such effect, and makes one of the Papers now annexed or pinned to the said produced Draught of the Articles of Agreement. Saith that, upon or about 29th March 1732 (above seven Months after the said Draught had been delivered over as aforesaid) the Defendant did deliver to this Deponent a Memorandum, or Note in Writing, now produced and markt (Par. No 6) which the Deponent believes to be of the said Lord Baltimore's own Hand, containing a new Demand, that there should be a Clause to prohibit any of the People of the respect- ive Provinces, to carry on Commerce into the Bays of Chesapeak and Delaware, by the means of any of the Rivers leading from one of the Provinces to the other, without the Leave of the Proprietor of the Province to whom the said Bay did belong , Upon the Delivery whereof to the Deponent by the said Lord Baltimore, his Lordship did signify to this Deponent, that his People in Maryland insisted on some such Clause, and that, therefore, he must have it, or to some such like effest. And this Deponent acquainted the Plaintiffs, or some of them, of such new Demand, and shewed to them the said last mentioned Memorandum or Note, and after some Consideration they agreed to have some Clause for such Purpose, and, accordingly a Draft of a Clause was drawn, which was afterwards settled by the said Counsellor Wynne, and makes one other of the Papers now annexed or pinned to the said produced Draft of the. Articles of Agreement, and, at length,, after many other Attendances, on the Lord Baltimore, Counsellor Wynne, and the said Mr. Sharpe, this Deponent and the said Mr. Sharpe compared the said now produced Draft of the Articles of Agreement, with Mr. Sharpe's Copy of the same Draft, on or about the 26th of April 1732, and this Deponent was to get and did get the said Map stamped or printed by the said Mr. Senex, on the Margin of some large Skins of Parchment, and the said Draft engrost. for six several Parts of the said Articles of Agreement, three to be kept by the said Lord Baltimore, and three to be kept by the Plaintiffs which being done, this Deponent was personally present on or about the 10th of May 1732, and did then see the Defendant and Plain- tiffs respectively sign, seal, and as their several Acts and Deeds, deliver the Parchment Articles of Agreement, of that Date, now produced and markt Par. (No 7) and the Title Baltimore, and the Names John Penn, Thomas Penn and Richard Penn, thereunto 570 PENNSYLVANIA AND MARYLAND severally set and subscribed, were and are of the proper Hand- writing of the Defend ant, the Lord Baltimore, and of the Plain- tiffs, severally and respectively; and thereupon the said Mr. Sharpe,and this Deponent, and several other Witnesses then pre- sent, did sign an Endorsement or Attestation, as Witnesses, on the Back of the said Articles, of the Execution of the same, in such manner as now appears thereon ; and the Name Ferdinando John Paris, in such manner as now appears subscribed to such Endorsement or Attestation, was and is of this Deponent's own proper Hand-writing; and at the same time this Deponent did also see the said William Penn the Grandson, and Letitia Au- brey, Charles Fell, and Gulielma Maria Fell (all of whom the De- ponent then very well knew) respectively sign, seal and deliver as their several and respective Acts and Deeds, the Deed-Pol 1 or Endorsement, written on the Back of the said engrost Articles, which Deed-Poll or Endorsement also bears Date the same 10th of May 1733, and the several and respective Names, William Penn, Letitia Aubrey, Charles Fell and Gulielma Maria Fell, thereunto severally set and subscribed, were and are of the proper Hand-writings of them severally and respectively; And thereupon, the said Mr. Sharpe and this Deponent, and the like several other Witnesses (then present) who had witnessed the Execution of the said Articles of Agreement, did also subscribe their Names as Witnesses to the Execution of the said Deed- Poll or indorsement, in such manner as now appears at the foot of the same, and the Name Ferdinando John Paris there- unto also set and subscribed, was and is of the Deponent's own proper Hand-writing; and saith, that the said Articles being so executed, the Parties Plaintiffs and Defendant in this Cause, congratulated each other on the concluding such Agreement, and appeared to be, and exprest themselves extremely pleased at the settling the Disputes which had for so many Years before subsisted between the two Families, and dined together that day. The same [Int. 17. fol. 260.] Saith that, so far as he knows or believes, the first Meetings in order to the said Agreement, began entirely upon the Motion and Desire of the Defendant the Lord Baltimore, and not upon the Motion or Request of the Plaintiffs, but the Deponent per- ceived the Plaintiffs to be very willing to meet his Lordship, in order to treat for an Agreement between them ; and the De- ponent well knows that the Terms proposed for their Agree- ment, at such Meetings as before mentioned, were generally proposed by, and were afterwards insisted upon by the Lord Baltimore himself, and several of which were complied with, BOUNDARY QUESTION. 571 and agreed to, by the Plaintiffs with great Reluctancy and Unwillingness on their Part, so far as ever this Deponent could judge, and as this Deponent verily believes; And this Deponent saw and heard the Defendant from time to time insist upon his general Demands, as before-mentioned, and express himself to the Purport that, if the Plaintiffs would not agree thereto, he must renew his Claim against them, as to the three lower Coun- ties, or to the like, or some such Effect. Doth not remember any forcible or menacing Methods, made use of by any of the Parties, in order to procure any particular Terms, save that at one of the early Meetings in order to the said Agreement one of the Plaintiffs exprest a great deal of Regret and Concern at the very great Expence, which, he said, they had been put to, on the former Disputes and Contests; which Matter the Depon- ent did, and doth apprehend and believe the Defendant took some advantage of : for that afterwards the Deponent observed the Defendant seemed the more tenaciously to insist upon his Demands; and several times when the Plaintiffs appeared un- willing to agree to his Terms, he intimated that then he must renew his former Claims, or to some such Effect; which the Deponent then lookt upon as menacing a further Expence to the Plaintiffs, which one of them had axprest some Fear or Dread of; saith that the said Agreement was not hastily or suddenly, or by any Surprise whatever (to the Knowledge or Belief ot this Deponent) concluded and settled, but, on the contrary, the said Agreement and the Terms of it, N were, to the Deponent's Knowledge, under Deliberation, from on or about 3d June 1731, until very near the time of executing the said Articles, on or about 10th May 1732, which was about eleven Months; and saith that great Part of the said Time was taken up in apparent Delays and Procrastinations (as the Deponent then believed, and still believss the same to be) used on the Part of the Lord Baltimore and his Agents, which the Depon- ent then wondered at, and could not then discover what should be the meaning of, as his Lordship seemed very fond and de- sirous of the said Agreement; but the Meaning of which were afterwards explained (to the Deponent's Apprehension) by what the Lord Baltimore himself, at several times towards the latter Part of the said Time, declared in this Deponent's Hearing, when he delivered over the said new Demand, on, or about 29th March 1732, And again, when ho executed the said Articles, on, or about 10th May 1732, from whence this Deponent did then collect and believe, and doth still really believe, that such Delays were taken, in order that the Lord Baltimore might have time to receive the Sense and Opinion of his Officers or Agents in Maryland upon such Agreement, before he would compleat or 572 PENNSYLVANIA AND MARYLAND execute the same. And saith, that he doth not remember any other Instance, of an Agreement between two private Parties, having proceeded with such great Caution and Ceremony, or such long Deliberations, as were used in order to the compleat- ing the said Articles of Agreement between the Parties to this Cause, nor doth this Deponent know or believe that any Im- position or Deceit was used or endeavoured to be used by the Plaintiffs, or any of them, towards the Defendant, in order to the obtaining the said Articles of Agreement. Abraham Taylor, aged 37. [Lib. C. fol. 477. Int. 113. fol. 478.] Says he was a subscribing Witness to, and proves the Execu- tion of the Articles of Agreement of 10th May 1732, by all the Parties thereto, and was also a subscribing Witness, and proves the Execution by the Plaintiffs of their Commission to their Commissioners dated 12th May 1732. The same. [Int. 114. fol. 481.] Says, that he being called in order to be a Witness to the Articles, did go to the Place where it was executed, that the Plaintiffs and the rest of the Company met, before my Lord Baltimore came, and in some time afterwards he came; and ex- cusing himself for so long Stay, desired they might proceed to the Business they had met about. That the said Deed was then read over, and had several Blanks in it, which were all filled up till the Reader came to a Blank, which had been left for the Penalty. That thereupon it was asked by Mr. Paris, as the Deponent remembers, what Sum should be inserted? To which after some time. Lord Baltimore said 'twas a Matter of Indiffer- ence to him whether it was 5000Z. or 50,000Z. Upon which the Parties agreed to have it 5000/. and it was accordingly so filled up. Farther says, that, after the Execution of the said Deed, the Lord Baltimore in Conversation then said, That there had been long Disputes between the said Parties, and he was very glad there was now an End of them; that he had' received Let- ters from his Friends in Maryland, advising him that he might have had better Terms [why then, surely, they knew there, what these Terms were] but thvt he "was perfectly satisfied with them. And then named one Mr. Lloyd, in Maryland, aud, at the same time, James Logan of Pensilvania, and said, that, if they had had the Management of it he believed they would have protracted the Affair much longer; but he thought it much better to end it, as they had now done, and h<~>ped to see Mr. Penn in America to make an end of the Affair, or to that Effect. And both Parties declared they were well satisfied with, and would execute the said Agreement. And further says. That he then collected from the said Lord Baltimore's discourse at that BOUNDARY QUESTION. 573 time, that hi the said Lord Baltimore had transmitted the Substance of the Agreement between him and the Plaintiffs to some of his Friends in Maryland, and had the Letters aforesaid in Answer thereto, but, notwithstanding- those Letters, he was perfectly well satisfied with the said Agreement. Serjeant William Wynne, aged 49. [Lib. A. fol. 164. Int. 29. fol. 166.] Saith that he hath lookt upon the Paper Draft of Articles of Agreement, now produced and markt Par. (No ?>.) and that the said produced Draft was left at the Deponent's late Cham- bers in the Middle-Temple. London, by Mr. Sharpe, or one of his Clerks, (as this Deponent believes) on the Behalf, and by the Order (as he believes) of the Defendant the Lord Baltimore for the Deponent's Perusal, which said Mr. Sharpe is, or was (as the Deponent believes) Agent or Sollicitor for the said Defend- ant. And saith, that he does not remember, that he the De- ponent was ever attended or consulted with, about the said produced Draft, either by the Plaintiffs in Person, or any of them, or by the said Defendant in Person, or by any Sollicitors or Agents for the said Parties, or any, or either of them, and is inclined to believe that he was not; cannot remember how long the said produced Draft lay before this Deponent, but believes it might lie before him about 10 Days, or a Fortnight, and believes he did strike out several Parts of the said produced Draft, and make other Alterations therein with a Lead Pencil; some of which the Deponent observes have been since wrote over with ink; and after he had made such Alterations there- in, he did approve of the said produced Draft on the Behalf of the Defendant, so far as the Deponent could, without speaking to the Defendant or his Sollicitor, touching the same. And the Deponent saith, that he had never been applied to, or consulted by the Plaintiffs, or any of them, relating to any of their Affairs whatsoever before the said produced Draught was laid before this Deponent, as aforesaid, or since, but. this Deponent had several times before that time, been applied to, and consulted, by and on the Behalf of the said Defendant, in the Way of this Deponent's Profession, as a Council relating to the Defendant's Estate and Concerns in Maryland, and elsewhere; and in par- ticular, the Deponent well remembers that he had been ac- quainted by the said Defendant of the long Disputes that had subsisted between the Defendant and his Ancestors as Proprie- tors of the Province of Maryland aforesaid, and the Plaintiffs and their Ancestors as Proprietors of the Province of Pensil- vania relating to the Boundaries of their respective Provinces. And saith, that he was requested by the Defendant, in or about 574 PENNSYLVANIA AND MARYLAND May 1731, or 1732, (as near as this Deponent can recollect the time) to meet the Plaintiffs and their Agents, to try if they could come to any amicable Agreement, touching the said Boundaries; and the. Deponent was accordingly present at sev- eral Meetings between the said Defendant and the said Mr. Sharpe, his Agent or Sollicitor, and some of the Penns, whom the Deponent believes to be the Plaintiffs in this Cause, and Mr. Paris their Agent or Sollicitor ; and remembers that the said Parties did, at length, come to some Agreements, which was ordered to be reduced into Writing, but the Particulars thereof, the Deponent cannot, at this distance of time, recollect, any otherwise, than from the said produced Draft, which the Deponent believes was drawn, or prepared in consequence of such Meetings and Agreement, and soon afterwards laid before this Deponent to peruse and settle on the Behalf of the said Defendant as aforesaid; but who drew, or prepared the said produced Draught, he knows not. Mary Senex, aged 52. [Lib. A. fol. 154 Int. 30. fol. 156.] Well knew John Senex, late of Fleet-street, London, Mathe- matician, who was her late husband, and he died the latter End of December 1740, and knew him for about 18 or 20 Years before his Death, and was his Wife about 18 or 19 Years, of triat time, and did frequently see him write, and is well acquainted with his Character or Manner of Hand -writing, and hath lookt upon the Paper- Writing contained in one Sheet now produced, and markt Par. (No 5.) and does verily believe that the two Pages of the Body of the said produced Paper- Writing, and the Name John Senex, set at the End thereof, is and are of the said John Senex's Hand-Writing. This Exhibit is Mr. Senex's written Opinion upon the Articles. Thomas Smith, aged 29 {Lib. A. fol. 158. Int. 30. fol. 159.] Well knew John Senex, who is dead, and died latter End of December 1740, and knew him between 13 and 14 Years before his Death, and first knew him by being put Apprentice to him, and served him as such seven Years, and lived afterwards with him as his Journeyman, to the time of his Death, saith, he often saw the said John Senex write, and is well acquainted with his Character or Manner of Hand-writing, and hath lookt upon the Paper-writing contained in one Sheet, now Droduced and markt Par. (No 5.) and really believes the two Pages of the Body of the said produced Paper-Writing, and the Name John Senex set at the End thereof is and are of the said John Senex's own Hand-writing; He has also lookt upon the printed Map or Plan, upon Paper, now produced and markt Sen. (No. 1.) and remeinbsrs the engraving the Plate for the said pro- BOUNDARY QUESTION. 575 duced Map or Plan, and it was graved by one Thomas Hutchin- son, who was at that time Servant or Journeyman ' (but had been Apprentice) to the said John Senex, and who left the said John Senex's Service and Family 8 or 10 Years ago, or upwards ; and saith, the said produced written Paper, and the said pro- duced Map or Plan, have relation to each other, and both relate to one and the same Subject, (as he really believes) for the De- ponent hath compared them together, and finds they relate to the same Lands, and that the dotted lines contained in the said produced printed Map or Plan, agree or correspond with the Boundaries described in the said produced written Paper. And the Deponent saith, that he hath likewise lookt upon the Parchment Deed now produced, markt Par. (No 7.) and upon the Map or Plan, stampt or printed on the Margin of that Deed, and has compared the said produced Paper printed Map or Plan, with the said printed Map or Plan upon the said produced Deed, and he does not find any Variation or Difference between them, but is well satisfied and assured they were both stampt or printed from one and the same Plate. Thomas Hutchinson, aged 35. [Lib. A. fol. 147. Int. 30. fol. 148.] Did well know Mr. John Senex, and the said John Senex is dead, and died about a Year and a half since, as this Deponent believes, and knew him for many Years; for the Deponent, about the Year 17r indirectly, any Order, Direction, Instruction or Intimation from, or on behalf of the Plaintiffs, or any of them, to retard, evade, avoid, frustrate or impede the Execution of the said Commission. But on the contrary, this Deponent and the rest of the Plaintiffs Commissioners, were several times, and very frequently, while the Execution of the said Commission was depending, desired and very much pressed, by the Plaintiff Thomas Penn, and 612 PENNSYLVANIA AND MARYLAND it was his constant Instructions to this Deponent and the rest of the Plaintiffs Commissioners, to use all the Dispatch and Candor they possibly could, to carry the said Agreement into Execution. Says he never did, in any manner, endeavour, or do any Act or Thing that he conceived could or would frustrate, avoid or hinder the Execution of the said Commissions; nor, to the best of his Knowlege and belief, did any of the rest of the Plaintiffs Commissioners endeavour or do any thing to frustrate, avoid or hinder the Execution of the same Commissions. * James Steel, {Lib. C. Fol. 559. Int. 62. Fol. 561. ] That he was appointed one of the Plaintiffs Commissioners, and did attend on all the Days that the Plaintiffs and Defend- ant's Commissioners met for that Purpose, (except the two last Days of their meeting) That he never did receive, directly or indirectly, from or on behalf of the Plaintiffs, any Order, Di- rection, Instruction, or Intimation to retard, evade, avoid, frustrate or impede the Execution of the said Commission; and that, neither he, nor to his Knowledge or Belief any other of the Plaintiffs, Commissioners, ever did, in any manner endeav- our to avoid, retard or frustrate the Execution of the said Commission, but on the contrary, did all that was in their Powers to execute the same. Note well. We never had any more than our original seven Commission- ers: two of which are proved to have been dead, and the third come for Europe, at the Time we examined our Witnesses, and we have examined every one of the other four, who concur pre- cisely in this general Account at all Times whatsoever. On the other Hand, the Defendant chopt and changed his Com- missioners till he made his original seven to be ten in Number ; of those ten he has examined only three; against whom there are many Objections also : but as to this present Point, they are most carefully askt, and as cautiously answer, that they did not contrive along with the Defendant to avoid the Agreement at one particular Time when it was no way possible for them to have done it, at that Time. Samuel Preston, [Lib. B. Fol. 312. Int. 63. Fol. 453. J Says that Samuel Ogle, Charles Calvert, P. Loyd, M. Howard, M. T. Ward. R. Bennett, Benj. Tasker, E. Jennings, James Har-, ris and John Ross [ten] were the Persons who, at several Times, appeared and acted as Defendant's Commissioners. And says that none of the said several Persons, in the Opinion and Belief of the Affirmant, did proceed with Fairness, Candour or Dis- patch, in the Service mentioned in their Commissions. But, on the contrary, did shew an Unwillingness and Reluctance to exe- BOUNDARY QUESTION. 613 cute the Articles of Agreement according to the plain Meaning of the said Articles, as the Affirmant, and, he believes, the rest of the Plaintiffs Commissioners understood them, by using many Arts and Methods to prevent, frustrate, evade and delay a fair Execution of the same. * James Steel, [Lib. C. Fol. 559. Int. 63. Fol. 563.] He also names the same ten Persons who appeared and acted as the Defendant's Commissioners, and says he verily believes the said Commissioners, or any of them, did not conduct them- selves with Fairness, Candour or Dispatch in carrying the said Articles into Execution ; but, as it appeared to the Affirmant, did »hew an Unwillingness and Reluctance to execute the same according- to the plain Directions of the same Articles, and also that they the Defendant's Commissioners did use several Arts and Methods, to delay, prevent and evade the Execution of the said Articles, and marking the Lines and Bounds therein men- tioned, pursuant to the true Intent and Meaning of the same Articles. James Logan, {Lib. B. Fol. 76. Int. 63. Fol. 161. ] Names the same ten Perons who appeared and acted as the Defendant's Commissioners at the Meetings where he was pres- ent. Says that all the Commissioners on the Part of Maryland appeared to him to have subjected their Conduct, in a very great measure, if not entirely, to the Direction of the said Governor Ogle. And it also appeared to this Affirmant, from the first Time of the Meeting at Newcastle in October, from the general Conduct of the said Governor Ogle, that he had fully purposed and designed to evade the Execution of the said Articles. Samuel Preston, {Lib. B. Fol. 312. Int. 109. Fol. 444.] That the Commissioners of the Plaintiffs and Defendant, to the best of his Memory, met 25 or 26 Days about the Execution of the said Agreement of May 1732. The first of which Days was 6th October 1732, and the last 24 November 1733. Says he verily believes there was sufficient Time, during such their Meetings, and before 25 December 1733, to have run and marked out the Circle, and all the Lines directed by the said Agreement to be run, if no Difference, or pretended Difference in Judgment had arisen amongst the Commissioners; which running and marking out the said Circle and Lines, the Affirm- ant says, was not obstructed or hindred by the Non-Attendance of the Commissioners, on either Side; but, as it appeared to the Affirmant from the general Actings and Behaviour of all the Defendant's Commissioners, was wholly owing to an Un- willingness in all the Defendant's Commissioners to run or mark 614 PENNSYLVANIA AND MARYLAND out the said Circle and Lines. And further says that he, from time to time, always met, with full Intention and Design to execute the said Agreement, and verily believes, from the gen- eral Conduct, Actings and Behaviour of all the rest the Plain- tiffs Commissioners that they from time to- time, always met with the same Design and Intention. James Logan, [Lib. B. Fol. 76. Int. 109, Fol. 212.] Says the like, that there was abundant Time to have run and markt the Circle and all the Lines, if no Difference, or pretended Differences in Judgment had arisen amongst the Commission- ers. And says the running out the Circle and Lines was not prevented, by Non-Attendance of the Commissioners on either Side. But was occasioned, as he believes, by the long Adjourn- ments prest and insisted on by the Defendant's Commission- ers; owing (in his Opinion) to a formed Resolution on their Parts to evade the Execution of the Agreement, by any means but that of failing in their Meetings according to their Adjourn- ments. He likewise says, that he always had a full Intention to execute the Agreement. And it was apparent to him, and he verily believes, from the Actings and general Behaviour of the rest of the Pensilvania Commissioners, that they met and acted from time to time, with full Intention to execute the said Agreement. And it was apparent to him, and he verily believes from the Actings and general Behaviour'bf the Maryland Com- missioners during all the said Meetings he was at, (which were on nineteen of the said Days,) that they did intend tu delay and avoid the Execution of the said Agreement. And the Reasons for his Belief are that they early alledged they could not find a Center, and then asserting and insisting that by a Circle expressly directed to be run at the Distance of 12 English Miles from Newcastle, was intended a Circle of less than two Miles Distance from Newcastle. Andrew Hamilton, [Lib. C. Fol. 775. Int. 109. Fol. 779.] That the Commissioners of the Plaintiffs and Defendant, who acted in the Execution of the Agreement May 1732, under the Commissions mentioned in his Answer to the 62d Interroga- tory, met on that Business on 26 several Days. The first of which was the sixth October 1732, at Newtown in Maryland, and the last on the 24th November 1733, at Newcastle Town, according to the best of this Deponent's Remembrance. And saith that there was, in his Judgment and Belief, abundantly more than sufficient Time, during such the said Meetings of the said Commissioners, and before the 25th Day of December 1733, to have run and marked out the Circle, and all the Lines di- rected to be run and markt out, by the said Agreement, if no BOUNDARY QUESTION. 615 Difference or pretended Difference in Judgment, concerning the same, had arisen amongst the said Commissioners. And saith ;that he hath been credibly informed, by Surveyors and Persons, who are well acquainted with, have been much con- versant in, such Business, and this Deponent believes it to be true, that two Months, and a little more, at a proper Season of the Tear, would be sufficient for the running and marking out the Circle and Lines aforesaid. And saith that running out of the said Circle and Lines was not prevented by the Non- Attendance of the said Commissioners, on either Side ; and that the said Commissioners, on either Side, or a Quorum of them, did not absent themselves, or stay from any of the said Meet- ings, beyond the Time of Adjournment, above an Hour or two at most. That the Reason assigned, by the Defendant's Com- missioners for their not joining with the Plaintiffs Commis- sioners in running out the said Circle and Lines was, their not agreeing with the Plaintiffs Commissioners in their Opinion or Construction of the Meaning of the said Articles of Agree- ment of May 1732; but, it was apparent to the Deponent, that the Unwillingness of the Defendant's Commissioners to carry the said Agreement into Execution, was the true Cause or Reason why the said Circle and Lines were not run and markt out by the 25th Day of December 1733. And saith that he is well sat- isfied that all the Commissioners on the, Part of the Plaintiffs, always met and acted, from time to time, with full Intention to execute the said Agreement; and on the contrary, that it was apparent to him, and he verily believes, from the Tenor of the Actings, and general Behaviour of the Commissioners who acted from time to time on the Part of the Defendant in the Execution of the said Commission and Articles of Agreement, never intended to carry the said Agreement into Execution. And that the Reasons for such this Deponent's Belief therein are, as follows, viz. That Samuel Ogle Governor of Maryland, and Patrick Gordon Governor of Pensilvania, having agreed that the Commissioners on each Side should meet at Newtown in Kent County in Maryland, on the 6th of October 1732, in order to carry the said Articles of Agreement into Execution, the said Samuel Ogle, Philemon Lord, Charles Calvert, Michael Howard, Richard Bennett, Matthew Tilghman Ward Esqs: Commissioners on the Part of the Defendant ; and the said Patrick Gordon, Isaac Norris, Samuel Preston, this Deponent, James Steel and Robert Charles, Commissioners on the Part of the Plaintiffs, met, accordingly, at Newtown aforesaid on the said 6th of the said October, and agreed to meet ag'ain the next Day, being the 7th of the said October, at the same Place, and met accordingly on the said 7th Day of October and the 610 PENNSYLVANIA AND MARYLAND Articles of Agreement between the Plaintiffs and Defendant's and the Commission to the before-named Commissioners on the Part of the Plaintiffs, and also the Commission to the before- named Commissioners on the Part of the Defendant, being pro- duced and read, the said Mr. Ogle, on the Part of the Defend- ant, objected to the Validity or Sufficiency of the said Com- mission from the Plaintiffs to the said Patrick Gordon, Isaac Norris, Samuel Preston, this Deponent^ Robert Charles and James Steel, and also to James Logan Esq; directed, for want of proper Persons being joined in the granting of that Commis- sion, and shewed an Indorsement, made upon the Defendant's Part of the said Articles, which Indorsement was signed, as this Deponent remembers, with the Names Letitia Aubrey, William Penn, and others, purporting their Consent and Ap- probation of the said Articles of Agreement, and that they would do nothing to frustrate or make void the same, or to such Effect; and therefore, urged that the Persons, signing the said Indorsement, ought to have joined in granting the said Com- mission to the said Commissioners on the Part of the Plain- tiffs, and, for not having so done, the said Commission was not sufficient to authorise the Plaintiffs Cbmmissioners to carry the said Articles into Execution; to which it was answered, by the Plaintiffs Commissioners, that, tho' the Defendant might think it proper, for his own Security, or any other Reason, to take such an Indorsement as aforesaid, from the said Letitia Aubrey and William Penn, or any others, not being Parties to the said Articles, it could not affect the said Commission granted by the Plaintiffs; and much being said, by the Defendant's Commissioners, and those on the Part of the Plaintiffs, touch- ing the said Objection, the said. Mr. Ogle said at length, he would wave the same, for the present; and then, the Commis- sioners proceeded to consider what was first to be done towards carrying the said Articles of Agreement into Execution, and the Plaintiffs Commissioners desiring the said Articles them- selves might be read, it was said, by the said Mr. Ogle, 'that there was no need of having recourse to the Articles, for that the Commissions on each Side, were the only Authority by which the Commissioners could act, and they must pursue the Direc- tions of the Commissions, as their Guide; but without further Argument, it was agreed that the Circle, about the Town of Newcastle, was the first Work enjoined to be done by the said Commissions, and thereupon the Defendant's Commissioners proposed to adjourn to the 30th of October; to which it was said, by the said Plaintiffs Commissioners, that this was the most proper Season of the Year for running and marking out Lines in the Woods, and that they had brought their Artists BOUNDARY QUESTION. 617 and Surveyors, to run the Lines directed to be run, by the said Articles ; and therefore proposed, that the Commissioners might proceed to run the same accordingly; but it being alledged, by the Defendants' Commissioners, that the publick Business of their Province required their Attendance, and that one of their Artists, on whom they chiefly relyed, was sick, therefore, they insisted they could not attend the Business of running the said Lines before the said 80th of October. Whereupon, the Plain- tiffs Commissioners (tho' unwillingly) consented to adjourn to the said 30th of October, to meet at Newcastle aforesaid. Then it was moved by the Plaintiffs Commissioners, that a Minute should be taken of the Meeting of the Commissioners and the Adjournment; which was opposed by the said Mr. Ogle, who said it would be troublesome to the Commissioners. The Plaintiffs Commissioners then proposed the introducing of one Clerk, or more, to take and keep the Minutes of the Com- missioners Proceedings, but this was also opposed by the De- fendant's Commissioners, as a Thing unnecessary, and would occasion great Trouble and Delay in settling such Minutes. Then, it was said by the Plaintiffs Commissioners, that it would not appear that ever the Commissioners had met, upon the Business mentioned in the said Articles, or, that they had ad • journed to any Day ; That, therefore, they believed it absolutely necessary that Clerks should be introduced, as no Persons were present but the Commissioners themselves; but this was abso- lutely refused by the Defendant's Commissioners as unnecessary. It was then insisted by the Plaintiffs Commissioners, that a Minute should be taken of the Commissioners Meetings and Adjournments, and signed by a Commissioner on each Side. This was long opposed by the' Defendant's Commissioners, but, at last, it was agreed that such a Minute should be made, and Michael Howard, one of the Defendant's Commissioners, and Robert Charles, one of the Plaintiffs Commissioners, were ap- pointed to draw up the same, which they accordingly did. And the Commissioners being met, in the Evening of the 7th of October, at the House of Mr. James Harris, where the said Mr. Ogle lodged, and the Plaintiffs Commissioners having, before- hand, desired Mr. David French and Mr. James Hamilton, then at Newtown aforesaid, to be present in the Room with the said Commissioners, to be Witnesses to the exchanging of the said Minute, the said Mr. Ogle, seeing the said two Persons in the Room, asked them whether they were Commissioners? Where- upon they left the Room, believing, as they said, that it was not agreeable to the said Mr. Ogle, that they should be present. Then two Minutes of the said Meeting and Adjournment, of the same Tenor and Date being produced by the said Mr. Howard 618 PENNSYLVANIA AND MARYLAND and Mr. Charles, it was desired by the Plaintiffs Commission- ers, that the Commissioners on each Side might sign the same, which was refused by the Defendant's Commissioners. Then it was desired by. the Plaintiffs Commissioners that the said Mr. Howard and Mr. Charles might each of them sign and exchange the said Minutes. To which the said Mr. Howard made An- swer, with some Warmth, that he would not sign, for he did not know but he might be called to England for it. And further saith, that a Quorum of the Commissioners, on each Side, met at Newcastle on the said 30th of October, in pursu- ance of their Adjournment, at the House of Robert Gordon, and the Articles of Agreement aforesaid being read, it was ob- served, by Samuel Ogle aforesaid, that the Charter for Pensil- vania, and the Deeds of Feoffment for Newcastle being recited in the said Articles, he desired the said Charter and Deeds of Feoffment might be produced ; To which it was answered by the Plaintiffs Commissioners, that so much of the said Charter and Deeds of Feoffment as was necessary for carrying the said Articles into Execution, being recited in the said Articles, there was no Need of the said Charter and Deeds themselves, upon which it was asked by the said Samuel Ogle, and the Deponent thinks by the said Michael Howard, whether any of the Plaintiffs Commissioners would give it under their Hand, for Law, that the Recital of one Deed, in another, was good Evidence to prove the Deed recited : To which it was answered by the Plaintiffs Commissioners, to the following Effect, That, in the present Case, they would do so; for. altho' it was gen- erally true, that the Recital of one Deed, in another, was not a Proof of the recited Deed, yet, the present Articles of Agree- ment, being the joint Act of the contracting Parties, and they having taken upon them the Knowledge of the Charter and Deeds so recited, That same Recital was good Evidence to the said Commissioners, that there were such Charter and Deeds, and that they were truly recited, and that the said Charter and Deeds could not be got nigher than Philadelphia, which would occasion great Delay,, that ought to be avoided at that late Season of the Year; but the Defendant's Commissioners insisting on a Sight of the said Charter and Deeds, one of the Plaintiffs Commissioners was dispatched to Philadelphia,, who returning the next Day, the said Charter and Deeds were, then pi"oduced at a Meeting of the Commissioners, held at the same Place, and the recited Parts of the said Charter and Deeds of Feoffment being compared, with the Charter itself, and exem- plified Copies of the said Deeds, they were found to agree. Then Copies of the said Charter and Deeds of Feoffment were demanded bv the Defendant's Commissioners; to which it was BOUNDARY QUESTION. 619 objected by the Plaintiffs Commissioners, that the Defendant's Commissioners themselves, having compared the Parts of the Charter and Deeds of Feoffment, recited in the said Articles, with the said Charter and Deeds, and being found to agree, there could be no Use of Copies of the said Charter and Deeds, especially seeing they were very long, but to spend Time, and delay the Business they had met about. And the said Defend- ant's Commissioners were then put in mind of what the said Samuel Ogle had said at Newtown in Maryland, That the Commissioners had nothing to do with the Articles, the Com- mission being their Authority and Direction: But this not being satisfactory to the Defendant's Commissioners, it was at last, agreed, that they should have Copies of the Descriptive Parts of the said Charter and Deeds of Feoffment, which they accordingly had, signed by some of the Commissioners for Pen- silvania; It was then offered by the said Samuel Ogle, that he observed there was no Direction in the said Commissions, for finding a Center, in order to run the said Circle about the Town of Newcastle, mentioned in their said Commissions. Whereupon it wasialledged by the Plaintiffs Commissioners, That the Commissioners, being impowered and directed by their said Commissions to run the said Circle, They, therefore, had Power to do all that was necessary for the running of the same, and therefore, to fix the said Center. To this it was re- plied, by the said Samuel Ogle, to the following Effect, That he had consulted both Lawyers and Mathematicians, and they were of Opinion that no Circle could be run, without a Center, and that by their Commissions, they had no Power to fix one. It was then said by the Plaintiffs Commissioners, that in the Map, in the Margin of the said Articles, the Town of Newcastle was laid down, and a Central Point fixed, within the same Town, from which the Circle, described in the said Map, ap- peared to be drawn which according to the said Articles, ought to be a Direction to the said Commissioners; but, it being answered by the said Samel Ogle, That the Town of Newcastle, being large, much depended upon fixing the said Center, for if it was placed at the extreme Part of the Town, it might injure the Lord Baltimore, and if fixed in some other Part it might injure the Plaintiffs, It was then urged again, by the Plaintiffs Commissioners, that the central Point laid down in the said Map for the middle of the said Town, was the best Direction the said Commissioners could have, and therefore the said Plaintiffs Commissioners moved that the Surveyors, attending might go and measure the said Town, which was objected to by the Defendant's Commissioners; and then it was proposed by the said Samuel Ogle, that the Commissioners should take a 620 PENNSYLVANIA AND MARYLAND Walk about and view the said Town ; and the Commissioners on both Sides, accordingly then walked to several Parts of the said Town with Surveyors attending them; That upon some of the Plaintiffs Commissioners offering to shew the Defendant's Commissioners the Extent of the said Town, the said Samuel Ogle neglected and disregarded the said Offer; That, upon a Meeting of the Commissioners, on the next Day, the said Samuel Ogle, again said, that he, having consulted Lawyers and Mathe- maticians, who were of Opinion that they had no Power to fix the said Center, and he having little Skill in those things himself, he ought to have a Regard for their Opinions or to that Effect ; and said, besides, That the said Town, he under- stood, was an oblong, and not round, and the Bounds also uncertain. Therefore he knew not how they could make such a Circle round the same Town ; upon this it was offered, by the Plaintiffs Commissioners, to remove that objection, that they should fix the Center at the Court house, in the said Town, which was not one third of the breadth of the same Town from the River Side, and therefore (as the Plaintiffs Commissioners said) it would be much to the Advantage of the Lord Baltimore ; To which the said Samuel Ogle answered, That they ought to be careful of the interest of the Plaintiffs, equally with that of the Lord Baltimore, and added, that some of the Plaintiffs Commissioners had said at a former Meeting, that the least Variation from the Articles would make void what they should do by Virtue of their Commissions; To this Allegation it was objected, by the Plaintiffs Commissioners, that no such Words, as the least Variation from the Articles, had been used ; but only, that any Variation from the express Words of the Articles, and the Direction of the Commissions, might render void and ineffectual what they should do in pursuance of the same. But there being no express Directions, either in the said Articles or Commissions, for fixing the said Center, and the Circle b«ing directed to be run, therefore, the said Plaintiffs Commissioners conceived that sufficient Power was given to the Commissioners to fix the said Center; and as the said Center, proposed, was for the Advantage of the Defendant, there could be no Apprehensions of his complaining, and the Commissioners on the Part of, Pensilvania proposed that they would procure an Assurance from one of their Proprietors of his acquiescing in such Center, so to be fixed ; but upon this, the said Mr. Ogle said, we may, thereby, injure some other People who have Freeholds bordering upon the Circle, wher- ever it should fall : To this it was said by the Plaintiffs Com missioners, That the Commissioners fixing a Center could injure such other Persons no more than if such Center was fixed by the BOUNDARY QUESTION. 621 Plaintiffs and i Defendant themselves, who nobody denied, had the Right of doing so; upon which Mr. Ogle said, let us wave the Center, for the present, and talk a little about the Circle. To which, it was answered by the Plaintiffs Commis- ioners, that it would be to no Purpose to talk about the Circle, till they had agreed upon the Center, since it was admitted that no Circle could be run without a Center ; but Mr. Ogle proceeded to ask the Plaintiffs Commissioners what they un- derstood were the Dimensions of the Circle, then proposed to be run? To which the Plaintiffs Commissioners answered, that they understood the Circle, mentioned in the said Articles and their Commission, to be a Circle of 12 Miles Distance from the Town of Newcastle, Whereupon Mr. Ogle said that the Circle which the Commissioners were enjoined to run, was the Circle mentioned in the Deeds of Feoffment of the Town of Newcastle, which Circle, was, as he conceived, a Circle whose Circumfer- ence was only 12 Miles, and much more was said by the Defend- ant's Commissioners to the same Purpose; but the Plaintiffs Commissioners insisting that the Articles of Agreement, being plain, would admit of no Construction, different from the ex- press Words, which Words were (a Chicle at the Distance of 12 English Statute Miles from th Town of Newcastle.) Upon this Mr. Ogle asked the Plaintiffs Commissioners, how they con- ceived a Circle of those Dimensions, could be run in the Woods? And said that for his Part, he thought it impracticable. To which the Plaintiffs Commissioners answered, that, if that was the Opinion of the Defendant's Commissioners, then they the Plaintiffs Commissioners understood them very well, that the said Articles were not to be carried into Execution at all ; and much Time being spent in Debates upon this Subject, it was at last proposed by Governor Ogle, That as the Commissioners on each Side, differed so much in Opinion and the Lord Balti- more being, soon expected in his Province of Maryland, that they should adjourn, in order to have his Lordship's Directions for the fixing of a Center; but this was opposed by the Com- missioners on the Part of Pensilvania, who said that the Season of the Year for running Lines in the Woods was far advanced, that they had brought their Artists with them, expecting to proceed upon the Work, as they had done at their first Meeting at Newtown, and that it was well known to every body, that after the 10th or 20th of December, the Weather was too severe, for any Persons to go and continue running Lines in the Woods, for any long Time as the Persons who were to do this Work would be obliged to do; and therefore an Adjournment would be very inconvenient; but the Commissioners of Maryland in- sisted, that they knew no more likely Way to forward the Work 622 PENNSYLVANIA AND MARYLAND then before them, than first to receive the Lord Baltimore's Directions for the finding a Center, which they conceived they had no Power to do themselves; upon this, the Plaintiffs Com- missioners took some small Time to consider of the proposed Adjournment, and in few Hours, the Commissioners of each Side met again, and it was said by the Plaintiffs Commissioners that they could not agree to any Adjournment, till the Defend- ant's Commissioners had named the Day, and if it was a short Adjournment, probably that the Plaintiffs Commissioners would agree to it; and much being said upon this Subject, the Commissioners of Maryland, at last mentioned the first of Feb- ruary, which the Plaintiffs Commissioners desired time to con- sider of; and then, they observed to the Defendant's Commis- sioners, that as there had been no Minutes taken of the Pro- ceedings that had passed amongst them, and that tho' the Busi- ness which they were upon, was of a publick Nature, yet Clerks had been refused to be introduced, and no Persons admitted to hear, or be privy to, any of their Debates, they again insisted upon having Clerks introduced, and Minutes taken of their Proceedings, which they conceived absolutely necessary, that it might appear they had met upon the Business which they were impowered to transact by virtue of their Commissions; but this was, again, absolutely refused by the Defendant's Commissioners, as unnecessary, saying that great Confusion and Trouble would arise by the Clerks dirfering in their manner of taking such Minutes, and Mr. Ogle likewise then said, that they would own before any Body, they had met on this Busi ■ ness; to which the Plaintiffs Commissioners replied, that there would be no Misunderstanding, or Differences of that kind, amongst the Clerks, as they would be present with, and under the Directions of the Commissioners; but not being able to obtain the Consent of the Defendant's Commissioners to have Clerks, or any other Person present at their Meetings, they took Time to consider of the Adjournment, till next Day; and, in the mean time, having observed amongst themselves, with great Concern, the Arts and Methods used by the Defendant's Commissioners to evade and delay the Execution of the said Articles, and their affecting so much Secrecy, at their Meetings, so as to admit no Persons to be present besides the Commis - sioners, it was resolved, amongst the Plaintiffs Commissioners, that a Paper should be drawn up (from the Minutes kept by the Plaintiffs Commissioners) of the several Transactions of the Commissioners from their first Meeting, to be read at the next Meeting of the Commissioners on both sides, and the same was drawn up, accordingly, and read to the Defendant's Commis- sioners the next Day ; and at the same Time it was desired that BOUNDARY QUESTION. 623 they would make their Objections, if they had any against the Truth of it; To whieh Mr. Ogle said, that the Plaintiffs Com- missioners might keep what Minutes they pleased, but if he had had the drawing up of that Paper, he could have set the Arguments of the said Defendant's Commissioners in a fairer Light; and then, one of the Defendant's Commissioners pro- duced a Paper, which was said to be some Minutes kept by them, and read the same, purporting that the Commissioners on both sides had met at Newcastle, in order to execute the Articles, or run the Circle, but, Difficulty s arising, they had agreed to ad- journ ; but the Plaintiffs Commissioners objected to this as being very unsatisfactory, and far from containing what had passed between the Commissioners, and the Reasons of their Adjournment; Upon which Mr. Ogle pulled out a Paper, and after reading the same, said, Gentlemen, What do you think of that? Which Paper was to the Effect following, viz. That the Plaintiffs Commissioners, or some of them, had declared it for Law, that the Recital of the Charter for Pensilvania and the Deeds of Feoffment, in the Articles, tho' false, yet were conclusive to the Parties'? To which it was answered by the Plaintiffs Commissioners, that no such Words had been used by them, or any of them; for that they could not suppose that the Parties to the said Articles, (who were so largely interested and concerned in the Consequence) would make any false Reci- tals 0 Minutes North from the Equator? Is it not under the first Degree, altho' it is not to the Extremity of that first Degree compleat? This I would illustrate further, by asking him, Under what Degree 90 Min., or 110 Min., North from the Equator, is ? Would he say, they are under the first Degree? If so, he makes more than 60 Min. to a Degree; and it's evi- dent, to common Sense, that they are under the second Degree, for they are beyond the Extent of the first Degree, and, there- fore, cannot be in, or under, that. William Riomsey, of Maryland, a Surveyor, the Defendant's Witness, aged 42, [Lib. G. fol. 129. Int. 7. fol. 130. ] That in or about 1716, he began to study Geometry, Trigo- nometry, Plain and Mercator Sailing, and in 1724 he was made Deputy-Surveyor of Cecil County aforesaid, and has acted in that Station ever since, and saith he hath studied some other Branches of the Mathematicks, as Spherical Trigonometry and Dialling; but, as he had not a regular Education, he looks upon himself to have, in relation to them, but a superficial Knowledge and further saith, that the Exhibit, No (1.) he has read and considered; and that he is of opinion, that all the Land lying under the 40th Degree of North Latitude between the Bay or River* Delaware, and the Meridian of the first Fountain of Potomack River, is within the Limits of the Char- ter; unless the 40th Degree of North Latitude should intersect the aforesaid River of Potomack, before it reaches that Meri- dian; And all the other Lanrls, lying under the 40th Degree of North Latitude are excluded thereout. Saith, that he is Avell acquainted with divers Parts of Maryland, being born, and having lived most of his Life-time, therein. Saith. that he has been acquainted with the three lower Counties, about 17 Years, where his Business has frequently called him; Saith, that he apprehends, that all the three lower Counties aforesaid, are within the Limits of the Charter aforesaid. That the Reason of such his Opinion is, because the said three lower Counties are a Part of the Peninsula in the Charter mentioned, lying to the Southward of the 40th Degree of North Latitude. Note— This Man contradicts the Fact admitted in fol. 13. of my Lord's Answer; where my Lord expresly admits that the three Lower Counties lie in the Peninsula, and also, above the Peninsula, within the Main Continent; for this Witness says they are all a Part of the Peninsula. So that * Where has he got the Word River? There is no such in the Char- ter. BOUNDARY QUESTION. 685 we are in a fine Case ; First, my Lord admits a. Fact, to draw us into a Reliance and Dependance uoon it, and then he ex- amines this, and many other Witnesses, to disprove his own Answer. And another partiular Error of this Witness is, that he is looking to the 40th Degree as now known (108 Years after the Time of my Lord's Charter) whereas, if he were to go according to the Degree at all, it should be the Degree as then known. But the greatest Opinions have, unanimously, been, that my Lord's Charter is to be expounded according to the Landmarks, and not any imaginary Points in the Heavens, the Uncertainty whereof the Defendant himself has given such an Account of. Hugh Jones, of Maryland, Clerk, the Defendant' s Witness, aged 49, \_Lib. a. fol. 4. Int. 7. fol. 5.] That he has been conversant in the Mathematicks, and es- teems himself, in some measure, skilled in them ; That he learnt Arithmetick at School, studied Geometry,. Geography and As- tronomy in the University of Oxford ; where, having taken the Degrees of B. A. and M. A. he was recommended, by the then Principal of the College, Doctor Win, Bishop of St. Asaph, to Doctor Robinson, then Bishop of London, who advised the De- ponent to perfect himself, as well as Time would allow, in the Mathematicks, for that his Lordship intended to send him over to the Colledge of William and Mary in Virginia, as Professor of the Mathematicks. That, thereupon, the Deponent applied himself to the Study of Algebra (which he had not applied himself to before) under the Instruction of Mr. Hudson of Christ-Church, and was admitted Professor of Mathematicks in the Colledge of William and Mary aforesaid, in the Year 1717, and continued studying and teaching the Mathematicks there till 1721, and has made it his occasional Study ever since. Says he has lookt upon the Exhibit No 1, and has read and considered the same; and, according to the best of his Under- standing and Judgment, All the Lands, between the Tide Water *1 of Delaware, and the Meridian of the first or Westermost *2 Fountain of Potomack, lying under the 40th Degree of North- erly Latitude from the Equinoctial, that is, at the Distance of 2400 Minutes. from the Terrestrial Equator, *3 are within the Limits and Bounds mentioned in the Exhibit aforesaid. That he has been, often, in 10 of the 12 Counties of Maryland, and knows several Places in each of them, and has known the same about 20 Years: 14 of which he has resided in Maryland. That he has known the County of Newcastle about 8 Years, but is 68G PENNSYLVANIA AND MARYLAND unacquainted with Kent upon Delaware and Sussex. That, for upwards of 8 Years last past, he has been Minister of a Parish, contiguous to Newcastle County, and has had frequent Occasions to go to Newcastle. Further declares, that, to the best of his Judgment and Understanding, all and every Parcel of the thrae Lower Counties are contained and included within the Limits and Bounds specified in the Exhibit; and saith that the Reasons for his Judgment concerning the Extent of the Charter to the said Distance from the Equator, are (1st) Because, to him, it seems located where New-England ends. *4, and Smith, in his General History, published before, and Ogilby, in his America, printed after the said Charter, both agree, that no Part of New- England could come more to the South- ward than 2400 Minutes North of the quator *5 ; 2dly, The differ- ent Cases of the Words Sinus and iEstuarium; the first, used in respect of Chesopeak, and the latter, in relation to Delaware ; for, had the Northern Limits been intended to have stopped short of the 40th Degree compleat, it might have been in a Part of Delaware as much as Sinus as Chesopeak is ; And the Reason why he conceives all the three Lower Counties to be within the Limit aforesaid, is because, from Observations taken, and Lines run, by himself and others, and Knowledge of the Situa- tion of the Places, he is fully convinced, that the most North- erly Part of Newcastle County (the most Northerly, of the three) (supposing Newcastle County not to extend more North- erly than 12 Miles North of Newcastle Town) is, at least, seven Minutes to the Southward of the said 40th Degree *6. Note — This is the very Person, who with his self-esteemed, but false Reasoning, has infected Lord Baltimore, and made him fly off from his Agreement ; and, therefore, we may expect to hear his Arguments enforced against us. But he has made several great Blunders in his Opinion. 1. He takes all the Lands between the Tide-Water of Dela- ware and the Fountain of Potomack ; but why the Tide- Water? He afterwards tells us, that the Word Sinus is used as to Chesopeak, and another different Word,iEstuar- ium, as to Delaware. He does not, indeed, give us his Construction of Sinus, but that's wholly immaterial, as no Part of Chesopeak Water was mentioned for the North- ern Boundaries. And the only material thing is this JEs- tuarium of Delaware, which, I am sure, the Crown did not intend should be the Tide- Water of Delaware, because had he lookt a little further, he would have found that the Crown itself has, in the very Body of the Charter, called it iEstuarium de Delaware vocat Delaware Bay. Now we have proved, by a Number of Witnesses, that the BOUNDARY QUESTION. 687 Head of Delaware Bay ends at Bombeys-book, a great way below Newcastle; whereas, they have got a single Wit- ness, who believes the Tide- Water flows 20 Miles above the City of Philadelphia,) which is really above 60 Miles more North than Bombeys-book, and which 60 Miles at a Touch, this Witness gets, only by striking out of the Charter the English Word Bay, and inserting in it a Word, which he likes better, Tide- Water. This Witness makes another very kind Construction for his Patron, of the King's Charter; for he says, all the Lands from the Tide- Water of Delaware, to the Meridian of the first or westermost Fountain of Potomack ; which is saying, to the first, or to the furthest and last Foun- tain. For the Charter begins with granting the most Eastern Lands first, (the Part of the Peninsula) and then proceeds and grants on to the Westward, to the Meridian of the first Fountain. But this Witness is right, for his Patron, he knows it will grant more, if it goes on and grants quite to the westermost Fountain and therefore he has again inserted Words into the Charter of the first (or westermost) Fountain. I know my Lord's Western Bounds do not affect us, but this abundantly serves to shew the Willngness of the Witness, and his Inaccuracy too, even when on his Oath ; so that no regard ought to be had to his Opinion, who, if he can't find, will yet make and add Words, to favour his Intentions, and his Patron. Having a very bad Argument to maintain, he affects to use very obscure and improper Terms, in order to con- fuse the Matter, even so as to talk very near to Nonsense. He says all the Lands lying under the 40th degree, that is, at the Distance of 2400 Minutes, are within the Limits and Bounds. If he means that it is not the Degree, nor under the Degree (as some of his fellow Witnesses contend) until that Degree is compleat, (and it certainly is com- pleat at the 2400 Minutes from the Equator) then, all these Lands, lying under the 40th Degree compleat, are no Lands at all; for the imaginai'y Line of 40 is an in- divisible Line, without any Space or Width in it. What can he mean then, by the Lands lying under the 40th De- gree, and yet, at the Distance of 2400, at which Distance they are not under, nor pan possibly be under, the 40th Degree? I know what he means, and will tell you. and it's plain that he chose and affected to speak in these dark obscure Terms, because, if he puts his Argument into a clear Form of Words, the Fact, upon which it PENNSYLVANIA AND MARYLAND depends, glares hiin in the Face, and destroys his Ar- gument in one Moment. He unquestionably means this, All the Lands South of 2400 Minutes North from the Equator, or South of that 40th Degree which is compleat at the Distance of 2400 Minutes North from the Equator, are within my Lord's Charter. Had he used these Words, they carry a very clear Proposition in them, and necessarily imply another, more short and more clear, that the whole Space of the 40th Degree was granted to Lord Baltimore ; which brings, it to a Fact that that whole Degree was granted to Lord Baltimore ; whereas I contend, that it was not, it could not, and it was not in. tended to be granted to him, for it was, before, most pre- cisely, granted to the Council of Plymouth for the ruling of New England, and my Lord's own Patent declares in express Terms, that his Province was to go to the Place where New England ended. . As to his first Reason for his Opinion, because it seems, to him, that Maryland was located where New England ended, we contend, it not only seems so, but is exprest, as clearly as Words can express, that it really was located where New England ends, and that is what we rely on. . He has a second Reason; for he says, that Smith and Ogilby both agree, that no Part of New England could come more Southward than 2400 Minutes North of the Equator. I have lookt, pretty well, into Smith and Ogilby both, and don't find that either of them agrees to any such matter. But, if they did both agree it, I am very sure of two things; 1st, That Smith, who originally printed his Book in the Year 1612, (and Ogilby afterwards copied from him) did not mean 2400 Minutes, as one Mr. Jones should observe, or judge them to be, 128 Years after he writ, viz. now in the Year 1740. And, 2dly, That the King's Charter, under the Great Seal, disagrees both with Smith and Ogilby; for that Charter to the Council of Plymouth grants, in plain English Words, from 40 Degrees to 48 Degrees inclusively ; whereas any such Expression of Smith and Ogilby would make it exclusively. , As to his Reason for saying, that all and every Parcel of the Lower Counties are included in Lord Baltimore's Charter, had he studied that Charter well, and. with it, my Lord's own Answer, he might have found much better Reasons to the contrary. For. 1st, The Lower Counties were culta. 2. My Lord had (as to this Matter) only a Part of a Peninsula, and admits upon his own Oath, that some of the Lower Counties lie out of that Peninsula, BOUNDARY QUESTION. 689 for that they are up within the Main Land and Continent, 3. My Lord was bounded on the East only by the Ocean, not so much as by the Bay or River, (much less by the Tide- Water) of Delaware. 4. He was to go from his South Bounds, usque ad such Part iEstuarii de Delaware, vocat, Delaware Bay, quae subjacet the 40th Degree. And, 5th, Were he to go by the Degree (which he was not) and were he to go to the 40th Degree compleat (which he was not neither) yet, it must not be the Degree which this Witness has found out now in 1740, but the Degree as known then in 1632. And that, as my Lord himself fixt it, by his own Book and Map, printed and publisht in 1635, three Years after his Charter, and after he had actually made his Set- tlement in the Country, and got acquainted with it, was, precisely, at the Head of Chesopeak Bay; whereas this Witness's modern Observation, makes it, now, full 26 Miles and 3 Quarters more North than it was esteemed to be then. These are my poor Thoughts and Observations, who never learnt Algebra, or any other Part of the Mathematicks. And I can't omit one Observation upon this Witness. He swears he is Minister of a Parish contiguous to Newcastle County; so that, should my Lord, by the Help of his Opinion, extend his Province, this Witness will naturally extend his Parish ; no small Temptation to a Minister of Maryland, where, as I observe by the 16th Page of the Maryland Law-Book (proved in the Cause) the Minister is intitled to a very large yearly Allowance, of no less than 40 Pound of Tobacco per Poll, on the taxable Inhabit- ants (which are almost every Person, Servants and Slaves) within his whole District; so that the County of New- castle, with about 11 or 12,000 Persons in it, would make a fine Addition to Mr. Jones's contiguous Parish, as well as to my Lord's Province. But, for an absolute Answer to this Witness's Opinion, I would apply the solemn Order of Council, made upon Lord Baltimore's own Petition, and after many Hearings by Council, in the Year 1685, declaring that the three Lower Counties were not granted to Lord Baltimore, and ordering a Line to be run to divide them off, in very em- phatical Terms, to the 40th Degree. Which Order was also, several times afterwards confirmed. And I would also apply the Opinions of Sir Clement Wearg, the present Lord Chief Justice Willes, and the present Lord Chancellor Hardwick, all of which, I presume, were 44— Vol. XV. 690 PENNSYLVANIA AND MARYLAND far better Expositors of the Charter of the Crown, than this Mr. Hugh Jones is ; and who unanimously agree that the Landmarks, and not imaginary uncertain Points in the Heavens, were to be his Boundaries. There is another Observation, too material to be omitted. My Lord has examined a Witness of his own only, one John Miller, (who will be mentioned by and by under another Head) and he has told us, not where the 40th Degree, according to modern Observations, is, (which would have been exceedingly material for my Lord Balti- more to have shewn, who insists that he has a Right to go to the 40th Degree compleat) but he has told us the Latitude of our Cape Cornelius, and that it is in 39 De- grees and 5 Minutes. Now if we should believe this single Witness of my Lord's, and should also agree that my Lord is to go quite to the 40th Degree compleat, even as now sworn to by that Witness, What would be the Con- sequence of that? Why the Consequence is, that the Line given my Lord by the Articles, is 66 English Miles above that Cape Cornelius; and Cape Cornelius itself is 5 Minutes, which is 5 English Miles and T 8 ^ths above the 39th Degree ; so that we have granted to my Lord 71 English Miles and T 8 ,- per Moriue) wrote at the foot of such Copy, is a true Copy of an Endorsement on such Original. And that the Paper-Writing, No 23, is a true Copy of an Entry, made and entred in a Book or Register belonging to the Privy Seal Office at Whitehall. And knows of nothing else that will make for the Defendant's Advantage, except that he has made careful and diligent Search and Enquiry at the Rolls-Chappie, and of Mr. Henry Rooke the Clerk of the said Chappie, who has the Custody and Care of the Rolls and Records there kept, in order to find out and discover whether any Grant or Letters Patent ever past the Great Seal, in pursuance of the said Bill or Draft of a Grant No 22, but has not been able to find any such Grant amongst the Rolls and Records of the said Chappie, or any Enrollment thereof, and has been informed by Mr. Rooke, and believes to be true, that Mr. Rooke has made diligent Search, but has not been able to find the same, or any Entry or Memorandum thereof, in any of the Books or Registers be- longing to the said Chappie, and that he therefore believes no 778 PENNSYLVANIA AND MARYLAND such Grant ever did actually pass the Great Seal, for that, if the same had past the Great Seal, it ought to have been regu- larly enrolled in the said Chappie of the Rolls. Note — As to his No 19, the Plantation-Office is not the Place, but the Council-Office is, for original Orders of Council. I suppose that is the Copy of the Order about Clayborne and the Isle of Kent ; If so, am surprised that Mr. Sharpe, who knows the State of that Order full as well as I do, would let his Clerk call that unauthentick Paper at the Board of Trade the Original Order. 46. We come now to the Gist of the Cause. The Defendant, fol. 268, 269, says he believes the Plaintiffs, knowingly and designedly, took Advantage of his Ignorance and Want of Knowledge of the several Places mentioned in the Map or Plan, and of the proper Situation and Distances thereof, for that, in the said Map, which was so made use of as a Guide in making the Agreement, there is a Place described and said to be Cape Hinlopen, in which Place there is no such Cape; And that the Place, described by the said Map to be Cape Cornelius, is the true Cape Hinlopen, origin- ally so called by the Dutch, and so described in their Maps; Which was a great Imposition on the Defendant, and misled him, in regard the East and West Line, that was agreed to be drawn across the Peninsula, was to begin, on the East Part of the Place in the said Map called Cape Hinlopen; but, ought to have been from that Place only which in the said Map is called Cape Cornelius. This being the Deceipt put upon him, by his own Map I beg you would turn to his Map, and then take his own following Evidence, which do afford (I think) the very strongest and clearest Evidence against him that the Plaintiffs themselves could possibly wish or desire. Margaret Simpson, aged 69, the Defendant's own Witness only, [Lib. G. fol. 194. Int. 12. addit. fol. 198.] Says, that she, about 46 Years ago, when she lived in Maryland, heard of a Place called Cape Henlopen or Inlopen, at or near Phenix's Island; And hath, since her residing at Lewis-Town, heard of a Place called Cape Cornelius about 3 or 4 Miles from Lewis-Town aforesaid, and of a Place called Cape May, oppo- site to said Cape Cornelius; and that, near Phenix-Island, there was, as she heard, a Brass or Copper Plate, or Brass or Copper Nails, on a Tree; and that for forty Years past,she has often heard the People of Maryland aforesaid, and of Sussex BOUNDARY QUESTION. 779 County aforesaid, dispute, and offer to lay Wagers, some that Cape Henlopen was near Phenix's Island aforesaid, and others, that the Cape near Lewis-Town was called Cape Henlopen. Note— To obviate that very Difficulty or Doubt, on account of the Names being transferred, the Articles express it, by a double Description, Cape Henlopen South of Cape Cornelius. John Fleaharty, of Maryland, Planter, the Defendant's own Witness only, aged 102, [Lib. G. fol. 145. Int. 14. fol, 145. ] He is acquainted with some of the Places named in the printed Plan; And that he never heard of any Place or Cape called Cape Cornelius, till within these 6 Months. But that the Place, markt in the said Map for Cape Cornelius, is the Place where the Whorekill Town, settled by the Dutch, was built, opposite to Cape May, and is the Place this Deponent heard the English call Cape Inlopen, ^Hitherto he seems not much for us, but he amply repays us] And that, to the Southward of Indian River and St. Martin's Creek, which St. Martin's Creek is in Somer- set County in Maryland, there is also a Place called Cape Hen- lopen. That he is not certain of the Distance between the Places markt Cape Cornelius and Cape Hinlopen, but supposes, upon a direct Line, it is about 12 Miles. This Deponent does not know how it came to be called Cape Hinlopen, but has heard that the Dutch settled the Whorekills, before Maryland or Virginia was settled by the English. This very antient Witness sets out finely for the Defendant indeed; He says the English call the upper Cape Inlopen but that there is a Place, where? South of Indian River and St. Martin called Cape Henlopen, and that the Dutch settled first, before the English. Charles Hilliard, aged 63, the Defendant' s own Witness only, [Lib. G. fol. 158. Int. 14. fol 166.] Knows several Places mentioned in the Plan which lie between the City of Philadelphia and Lewes Town, which is near the Capes of Delaware, and that he has been at Lewes-Town, and has seen a Point of Land which is called the Cape, which lies, on the other side of a Creek, but, being not skilled in Geo- graphy, can't say whether the Places laid down in the said Exhibit are rightly delineated, or not. The same, to the 12th additional lnterroaatory , fol. 168. Has heard of a Place called Cape Hinlopen, Avhich lies to the Southward of Indian River, near an Island, the Name of which he does not remember ; The said Cape was first so called by the Dutch ; And that he has heard of the said Cape Henlopen from his Father, who was a Sea-faring Man, and lived at St. Martin's Creek or River, near Indian River aforesaid. This is better still. 780 PENNSYLVANIA AND MARYLAND Martha Johnson, the Defendant's own Witness only, uncertain- of her own Age, but believes 72, [Lib. 6r. fol. 210. Int. 12. add. fol. 212.] Lives near five Miles from Lewes Town, the way that is usually rode. She has heard, that a Place, very near to where she , lives, was, by the Dutch, called Cape Inlope. And further says, that she thinks she has heard that a Place, at Phenix's Island, was called Cape Henlopen but that the whole appears to her like a Dream. These are the Defendant's Witnesses, and his own Exam- inations. John Miller, of Somerset County in Maryland, Planter, aged 44, the Defendant' s own Witness only, [Lib. G. fol. 271. Int. 14. fol. 272.] Has lookt upon the Plan. Is acquainted with Delaware Bay, and all the Sea-Coast, from Delaware Bay to the Capes of Vir- ginia having been several Voyages into the said Bay of Delaware and along the Sea-Coast. He has taken an Observation at the Place markt Cape Cornelius, and found it to be in 39 Degrees and 5 Minutes North Latitude. That in all the Sea-Charts and Waggoners which he has seen, the said Cape was called by the name of Cape Henlopen, except some few People in Sussex County, who called it by the name of Cape Cornelius. Says, that, at the Place, markt in the said Exhibit Cape Hinlopen, there is no appearance of a Cape, either near or at a distance, the Sea-shore there is near strait, and very low. That the Place, called Cape Henlopen in the said Exhibit, he apprehends, is intended for the Place called by the Inhabitants there Phe- nix's Island ; tho' he thinks, it ought to have been laid down more to the Southward than it is, near the Midway between the Place markt Cape Cornelius, and the Southern Bounds of Mary- land. Says, he believes it is from Phenix's Island to Cape Hin- lopen, markt Cape Cornelius in the Exhibit, along the Sea- shore, about 23 or 24 Miles. Says, that the Word Henlopen is a Dutch Word, which Language he does not understand. Says, there are several Rivers and Creeks, along the Sea Coast, and in Delaware Bay, which are not laid down in the said Plan [whose Fault was that? It is not our Plan] particularly Seny Puxen, Indian River, and the Whorekill Creek. That, near to the Place markt Cape Cornelius, in the said Plan, there should have been a Bend, and that, afterwards, it should have been laid down straiter than it is in the said Plan. That he has never read the Articles of Agreement between the Parties but if the Southern Bounds of the three lower Counties were to be run, from Phenix's Island, to the Middle of the Peninsula. BOUNDARY QUESTION. 781 described in the said Exhibit, it would extend upon the Posses- sions of the Defendant, upwards of eight Miles to the Southward, and a considerable Space to the Westwards. Supposing this was so, yet if the South Bounds went up so high as to the upper Cape, as my Lord contends, then this Witness allows it would extend 16 Miles upon the Possession of the Plaintiffs, and others say 18 Miles; and we shall clearly account for those 8 Miles this Witness talks of. The same, to the 15th add. Inter, fol. 279. Has been acquainted with the Sea-Coast, Delaware Bay, and the Country thereabouts, described in tha Plan, near 30 Years. Believes that, upon the Tract contained between the Place called Cape Cornelius, and Cape Henlopen. in the said Plan (if Cape Henlopen in the said Plan is intended to be at Phenix's Island) extending the Lines, from both Places West to the Middle of the Peninsula, does contain about 500 Families. [Note, He says this of the whole 23 or 24 Miles.] That the In- habitants, to the Southward of Indian River aforesaid, have lived under the Government of Maryland ; And the Inhabitants to the Northward of Indian River aforesaid, have lived under the Government of Pensilvania. Hath seen several Patents for Lands, from the Lord Baltimore, to the Northward of Phenix's Island, dated in 1677, and the rest bearing Date before the Year 1684. And has also seen two Patents from the Proprietors of Pensilvania, dated 1684, for Land upon Indian River, and on the South Side thereof. That ever since he can remember, [born in 1696] the Inhabitants, on the South Side of Indian River have always paid their Quit-Rents to Lord Baltimore, and his An- cestors, except during the time there was an Equivalent given by the Country to the Defendant for the same. And that he has never heard of any Quit- Rents being paid for the said Land, or any of the said three lower Counties, by the Inhabitants to the Plaintiffs, or their Ancestors. This is a planter, who has made several Voyages into Dela- ware Bay; He says, he lives in Somerset County, which is jiist below Sussex County : and Indian River, indeed, is not easily crost, without a Voyage. But he swears there is no appearance of a Cape at Phenix's Island, either near, or at a Distance, the Sea Shore is very low. Now let us see how their own next Witness contradicts him, as to that last Point, and fortifies all our Witnesses. Boudoin Robins, of Maryland, Planter, the Defendant' s own ' Witness, only aged but 34, [Lib. G. fol. 282. Int. 14. fol. 282.] Has lookt upon the Plan, and is acquainted with the Sea- 782 PENNSYLVANIA AND MARYLAND Coast from the Capes of Delaware to the Mouth of Chesopeak Bay, and from thence, with the said Bay of Chesopeak, as high as Annapolis. Says, that Cape Hinlopen should have been placed in the Plan where the Place markt Cape Cornelius is, as he apprehends ; for that he has been a Coaster, eight or ten Years, and has ever understood that Place to have been Cape Henlopen, and has always heard it called so, by those who spoke of it to him. And that the Shore, from thence (except- ing a little Bend near the said Cape, about five or six Miles to the Southward of it) is generally strait, and beareth South and by West. Says, he observes that Seny Puxen and Indian Rivers are not laid down in the said Plan, and also Choptank River that runs into Chesopeak Bay. That he can't tell by what Name the Place, markt Cape Hinlopen in the Plan, is called by the Inhabitants, because he does not know its Distance from the Mouth of Delaware Bay. That, in sailing along the said Sea-Coast, towards Delaware Bay, the Land at Phenix's Island, is somewhat higher than the rest of the Land about ; But that no cape appears, till you come to Cape Hinlopeu lying on the South side of Delaware Bay, and markt in the Plan Cape Cornelius, [Note, There being no real and true Cape or Head-Land, is the very Reason for transferring the old Name to the Place where there is unquestionably a Cape. And this Witness tells you he is a Coaster, and a young one too, of 8 or 10 Years.] He goes on, and says, he has heard it was called Cape Hinlopen by the Dutch, and that the Meaning thereof is inlap. That he thinks the Cape, upon the East Side of the Mouth of Cheso- peak, is not truly laid down ; and several Islands, Creeks, and Inlets, are omitted in the said Plan, that lie in and run into Chesopeak Bay. The same, to the 15tJi add. Int. fol. 288. That, as there is neither Scale or River mentioned between the said Places markt Ca,pe Hinlopen and Cape Cornelius in the Plan, he cannot, thereby, find out whereabouts the Place, therein called Cape Hinlopen, is intended to be fixt ; nor can say how many Families there are inhabiting betwixt that Place and the Place there markt Cape Cornelius ; but always under- stood that the People as far North as Indian River, held their Lands under the Proprietary of Maryland. Colonel Thomas Colvil, of Maryland, aged 50, the Defendant's own Witness only, [Lib. O. fol. 120. Int. 14. fol. 121.] Says he is not well acquainted with the Bay of Delaware de- scribed in the produced Map, but has been once up and down the said Bay. That he is no otherwise acquainted with Cape Hinlopen, than as is described in the Sea-Charts, or West-India BOUNDARY QUESTION. 783 Waggoners. That he has never heard of any Cape called Cor- nelius, till within these six or seven Years. He knows not from whence Cape Hinlopen took its Name. That, when they sailed in, by the Cape Hinlopen described in the Sea-Charts or Waggoners aforesaid, they apprehended the Cape lay very near Lewis Town. This is nothing to the purpose; the Defendant might have had 10,000 Witnesses, who had only seen the new modern Maps, that might have said just the same as Colonel Col- vill does. And these Witesses tell us, to whom the Inhabitants South of Indian River pay their Quit-Rents, but how many are the Inhabitants? Have they proved seven, five, or three, such Inhabitants? I see not the least Proof made by the Defendant, of any one Inhabitant or Settlement, there, made by Maryland; and indeed, it's a low, sandy, un- healthy and unpleasant Place, and will be the last that is settled, whoever it belongs to. But, what is all this, and more of the same kind, to the purpose? My Lord says, that our Cape Cornelius was, the Place originally called by the Dutch, and so described in their Maps, Cape Hinlopen, why then, sit Liber Judex: Has my Lord proved any one Map whatever? No. Why has he not? Because they most absolutely falsify his Pre- tence and lay down both Capes exactly according to his own Map. Thomas Hynson Wright, of Maryland, Esq., the Defendant's own Witness only, and a Surveyor, aged 52, [Lib. G. fol. 251. Int. 114. fol. 259.] That he hath lookt upon the Plan, and is acquainted with most of the Land between the main Ocean Delaware Bay, and Chesopeak Bay, as far Northward as Newcastle; and that, after the Agreement made between the Plaintiffs and the Defendant, he this Deponent was employed, by the Defendant's Commis- sioners, to go down and take a Reveiw of the Cape of Delaware, and the Sea-Side. And that, when he came to Lewes Town, he inquired of several of the principal Inhabitants there, for Cape Henlopen, particularly of William Till, Rives Holt, and one Col- leak, and was shewed, by them, a Point for Cape Hinlopen, at the South Side of the Mouth of Delaware, which seems to be repre- sented in the said Plan by the Cape marked Cape Cornelius ; and that the said Cape bore, near East, about 4 or 5 Miles Distance, (as he was informed) from Lewis Town aforesaid ; and that, he, afterwards, went, from Lewis Town aforesaid, to the said Cape, and coursed the Sea-side, along with a Compass, to the Mouth 784 PENNSYLVANIA AND MARYLAND of Indian River, which the Inhabitants there acquainted this Deponent they computed to be about 12 or 14 Miles from the said Cape, and that the Course thereof was very near South ; and that, afterwards, he, this Deponent, went to a Place, called Phenix's Island, which the Commissioners aforesaid informed him that the Plaintiffs Commissioners deemed to be Cape Hin- lopen, as described in the Exhibit aforesaid. [Why did he not ask there for Cape Hinlopen?] From which last mentioned Place, he run the Course of the Sea Shore, and measured the Dis- tance of the Mouth of Indian River aforesaid ; and that Indian River bore about North 9 or 10 Degrees East, and distant about 8 or 9 Miles from Phenix's Island : Saith that, as he went along the Sea Shore aforesaid, he inquired for the oldest Inhabitants there, and by them was informed, that they never knew or heard of any Place called Cape Hinlopen, but that Cape near Lewis Town aforesaid, until the Agreement aforesaid ; That the Course of the Sea-shore aforesaid appears to this Deponent to be untruly laid down in the said Exhibit; and that he does not know by what Name the Place marked Cape Hinlopen in the said Exhibit, is called by the Inhabitants there; Hath understood formerly, that the Word Hinlope was Dutch, and that it signified leaping in, and therefore applied to the En- trance of Delaware Bay. Saith, that the said Plan contained in the said Exhibit is incorrectly made. That there are divers Rivers, viz. Nauticoake, Choptank, Chester, and Sassafras, not laid down in the said Map; and that he believes, that, if the said Rivers had been laid down in the said Map, The Tan- gent Line therein marked, would have intersected the Heads thereof, and would have cut off navigable Waters from Nauti- coak and Choptank, if not from the othar Rivers. [This is provided for, by my Lord's new Clause, if it does.] And the Reason of such his Belief is, because he traversed the Courses of the Roads, from Lewis Town to Phenixes Island, and from thence, into Queen Anne's County in Maryland, and from thence to Newcastle aforesaid, in order to plat the same, and discover where the Tangent Line would run. Saith, that if the Articles of Agreement aforesaid, were carried into Execution, and the Place called Phenixes Island should be deemed Cape Hinlopen that the Defendant would lose near 300,000 Acres of Land, which he never understood were claimed as Part of the three lower Counties aforesaid. This Witness does not tell us one single Word, whether there is, or is not, the Appearance of a Cape at Phenix's Island, which would have been very material and natura.1 for him ; and, as he was employed, as a Surveyor, in the Service of the Defendant, by the Defendant's own Com- BOUNDARY QUESTION. 785 niissioners, purely to enquire for the Cape, and to view the Cape, he certainly must have known or learned, some- thing about it, one way or the other; but he is not asked one Syllable about it. This man, sent down pui'posely.on this Errand, enquired at Lewes Town, in the Neighbourhood of the New Cape Hin- Jopen, of several of the principal Inhabitants, (and he names three only and no more) for Cape Hinlopen, and they shew'd him what is called in the Plan Cape Corne- lius, near Lewis Town, and so will 1000 other Persons, now at this Time, do. He tells what Course the Sea Coast bears, and the Distance of several Places, And he inquired of the oldest Inhabitants, and was in- formed by them, (but does not name any one single Per- son of them) that they never heard of any Cape Hinlopen, but that near Lewes Town. What Pity it is, this Gentleman, in his Search and Enquiry, had not found out any one of the many Maryland Wit- nesses, and Sussex County Witnesses both, which the De- fendant and the Plaintiffs found out, and have examined all of whom knew, and could have told him very well, of another Cape Hinlopen, at Phenix's Island, and which they have all sworn to in this Cause. You'll please to observe how cautious this Man is, he does not pretend that my Lord is possessed of, or has a single Tenant upon the 300,000 Acres which he speaks of. Governor Samuel Ogle, of Maryland, aged 40, [Lib. G. fol. 218. Int. 14. fol, 226.] That he is acquainted with the upper Part of Chesopeak Bay, and the Rivers therein, and the Country about it, described in the Exhibit or Plan; and that he lookt upon the said Map or. Plan to be very imperfect and false; There being some Rivers wanting, and others wrong designed and described. That, from the best Information he has been able to get, he is persuaden Cape Henlopen is wrong laid down in the said Exhibit: and that, where Cape Hinlopen is laid down, in the said Exhibit, there is not the least Appearance of a Cape. And that he ap- prehends, from the best Information he has been able to get, Cape Henlopen should be laid down, where Cape Cornelius is laid down, in the said Exhibit; and that, for about 30 Miles to the Southward of the Place which this Deponent apprehends to be the true Cape Hinlopen, marked in the Exhibit Cape Corne- lius, there is a flat Shoar, and no Appearance of any other Cape. Saith, that he really believes the Exhibit aforesaid was con- , 30— Vol. X\ . 786 PENNSYLVANIA AND MARYLAND trived,on purpose to deceive the Defendant, and that the Plain- tiffs were privy to the Falsities and Misrepresentations (before the Execution of the Articles aforesaid) therein made; and that it was artfully conveyed into the Defendant's Hands, by the Plaintiffs or some of their Friends. The Reasons why the De- ponent believes the said Map was not sent from Maryland to the Defendant, are, that he hath heard the late Governor and Mr. Philemon Lloyd, Secretary of Maryland, who had the principal Management of the Defendant's Affairs concerning the Bound- aries of that Province, often declare that they had no hand in the making, or sending it, nor could he ever learn that they, or any other Gentleman in Maryland, ever heard of Cape Hen- lopens being where it is laid down in the Exhibit, before the Map, of which the Exhibit is a Copy, came into Maryland with the Articles of Agreement; and that the Deponent can't conceive how any Gentleman in Maryland, could ever think of placing Cape Hinlopen any where but at the Whorekills, since in the Deed of Feoffment from the Duke of Y'ork to Mr. Penn, it is called Cape Henlopen, alias the Whorekills; and the De- ponent hath never heard of any Dispute made about the Situa- tion of the Whorekills. This Gentleman who, upon Oath, does not believe only, but absolutely knows, the Heart of Man. (even at first Sight) and how much they know, and how little they know, happens to be wonderfully out in what he is per- suaden of, and in what he apprehends, (for those are the governing Words of the former Part of his Deposition as to its being: a flat Shoar, and there not being the least Appearance of a Cape. For his Perswasions and Appre- hensions have the Misfortune to be flatly contradicted by many of his own Fellow Witnesses, (but not Governors) and by many of ours likewise, all of which swear the di- rect contrary. 2dly, As to his real Belief, 1st, That the Plan was contrived to deceive the Defendant; 2dly, That the Plaintiffs were privy to the Falsities in it before the excution of the Ar- ticles; and, 3. That it was artfully conveyed into the Defendant's Hands, by the Plaintiffs, or their Friends, any one of these 3 Things proved, had been exceedingly material, but no Step to prove any one of them, nor, any one Reason given, why he believes any one of those Things. My Lord himself, and his Sollicitor, both admit that the plan was sent to my Lord by his own Agents, whoever they had it from; but this Man goes higher, and believes that the Plaintiffs, or their Friends, conveyed it artfully into the Defendant's Hands; so that he out-does, and BOUNDARY QUESTION. 787 contradicts, his Master, and all. without the least Reason given why he believes this. "Well, but he swears he has some Reasons to believe another distinct Matter; namely, that the Map was not cent from Maryland ; and we will examine those Reasons, and see whether they are Rea,sons to believe that other Matter from. Why first, he has asked two single Persons, the late Governor and the Secretary, and they two told him they had no Hand in making or sending it. But has he examined them as Witnesses? No. Does he say either of them is dead? No. Suppose they told him what was false ! Or, suppose they told him true, Has he asked my Lord's Surveyors General, whose Business it was to make Maps and Plans? No. Can't my Lord tell who it was that he had that Plan of his own Province, from? Does my Lord, or any one else, so much as pretend to name, or say, who the Person was, that delivered the Plan to him? No. Has he examined to prove that that Map was ever seen or heard of, in Pensilvania? No. Had not they an Inter- rogatory framed, on purpose to examine into that Matter? Yes, they had, their 5th cross Int. H. Fol. 176. but they could find nobody proper to be examined upon it. But 2dly, This Witness has another Reason to believe the Map could not be sent from Maryland; for he could never learn that the late Governor, and the Secretary, or any other Gentleman in Maryland ever heard of Cape Hinlo- pen's being where it is laid down in the Map. Y/hat Pity it is a Man, of so great Knowledge, should be so un- willing to learn, what so many of his own, and of our Witnesses (many of Maryland) could have told him, and have sworn, that not only the particular Place was called Cape Henlopen by the Dutch, but that the whole Country thereabouts was called, after its Name, Hinlopen? He can't conceive that any Gentleman in Maryland could ever think of placing Cape Hinlopen any where but at the Whorekills ; since, in the Duke's Feoffment, it is called Cape Hinlopen alias the Whorekills; and he never heard of any Dispute about the Scituation of the Whorekills; but are not we. at this Instant, and himself in this very Argument, considering the Extent of that large District, called first Whorekills, and afterwards Sussex County? And, however it may be expressed in the Duke's Feoff- ment, yet, surely, to Persons, who have seen the Dutch Maps of 1663, and the English Map in 1671, both which laid down Cape Henlopen and Cape Cornelius, and laid down Cape Hinlopen at the Place really called by the 788 PENNSYLVANIA AND MARYLAND Dutch Cape Hinlopen, and who know (as the Witnesses do) that that Place was called Cape Henlopen by the Dutch, it would be no sort of Impropriety for a Mary- lander to think that Cape Hinlopen lay, at a Place where he knew it did lay ; and any Inaccuracy, if there was any, in the Duke's Feoffment in 1682 (and which is helped by the present Articles) would not determine a Man to make a Map of a Country knowingly wrong, because that the Duke of York had, once, inaccurately expressed a Part of that Country, in some Deed of his. dated in 1682. But, if he will have the Duke of York to explain where Cape Henlopen lay, that was so called by the Dutch, they may find it, in very clear explicit Terms. In the Patent which the Duke was obtaining, the Beginning of the very next Year 1683; which describes it exactly accord- ing to our Evidence; and that Patent the Defendant him- self has proved a Copy of, from the Signet Office, in this Cause. The Defendant has cross examined eight of our Witnesses, upon some printed Plan or Map marked A, which I sup- pose was a Copy of his own Plan annexed to the Articles. John Teague, Lib. H. fol, 43. Int. 3. fol. 45. Elizabeth Morris, Lib. H. fol. 26. Int. 3. fol, 28. John Musgrave, Lib. H, fol. 34. Int. 3. fol, 36. William Peterson, Lib. H. Fol. 7. Int. 3. fol. 10. ] Who all say they have looked upon that Exhibit, and don't understand it. Samuel Hollmgsworth, aged 67, [Lib. H. fol. 29. Int. 3. fol. 31.] Says he is unacquainted with the lower Part of Delaware, and tho' he has heard of Cape Hinlopen, Cape Cornelius, and the Whorekills, can give no particular Account of them. He does not remember to have heard of Phenix's Island, [Note, he lives in Chester County in the upper Part of Pensilvania] That he knows Christiana Creek, and takes that Creek in the Map, next above Newcastle, to be designed for it. John Rambo, of New Jersey, Farmer, aged 79, [Lib. H. fol, 19. Int. 3. fol. 21.] He has looked upon the Plan, and he has never heard of any Cape called Cape Cornelius; but that the Place, therein so marked in the Place which he has always undedrstood to have been called Cape Hinlopen since he has been acquainted with those Parts. That he is acquainted with the Whorekill Creek, which runs into the Land, a little within the Cape marked in the Exhibit Cornelius; but knows nothing of Phenix's Island. BOUNDARY QUESTION. 789 That he knows Christiana Creek, which lies, as he believes, 3 or 4 Miles above Newcastle. Note— This Witness, a Country Fanner, has just told us, in the next preceeding Interrogatory, that he was born and lived his first 20 Tears up at Philadelphia, and the Residue of his Time in another distinct and more remote Province, New Jersey, and was never but one Winter a Whaleing at the Places enquired after, and that 50 Years ago ; and now, they are enquiring into his Knowledge, and his Understanding, these Places. Samuel Preston, aged 75, [Lib. H. fol. 104. Int. 3. fol. 106.] Has looked upon the said Plan, and is acquainted with the Places marked therein Cape Cornelius; and has heard of the Place therein marked Cape Hinlopen. Says that the Place therein marked Cape Cornelius has generally, since his know- ledge of it been called Inlopen, and is distant from the Place in the said Plan called Cape Henlopen about 25 Miles as he believes; Further says he has seen some Maps wherein the Place called Cornelius in the said Plan, was called by the same Name Cornelius. He knows the Place formerly called the Whorekill Town, and Christiana Creek, and hath heard of Phenix's Is land. That the Whorekill Town lies near to the Place in the Plan marked Cape Cornelius. Christiana Creek about 5 Miles above the Town of Newcastle. And believes that Phenix Is- land is about the Place marked Cape Hinlopen. Says that a Creek runs up by the Whorekill Town. Thomas James, Pilot, aged 49, [Lib. H. fol. 12. Int. 3. fol. 13.] He has looked upon the Plan, and is acquainted, by sailing into Delaware Bay, with the Place therein marked Cape Cor- nelius, which is now called Cape Hinlopen. That there is another Place, that has the Appearance of a Cape, to the South- ward of the said Cape, which has been sometimes called Cape James, [please to mark it well, for our written Evidence proves that Mr. Penn, so named it in 1682] sometimes Cape Hinlopen, and sometimes the false Cape: but whether this last be cor- rectly laid down, or not, in the Exhibit, he cannot say, there being neither Course nor Distance expressed therein. That he is not acquainted with the Place called Phenix's Island, but has seen the same from the Sea. That he is acquainted with the Place formerly called the Whorekills. That it is scituate upon a Creek, formerly called by the Dutch, the Whorekill Creek, about four or five Miles within the Cape marked in the Ex- hibit Cape Cornelius. That he is likewise acquainted with Christine Creek, which is a Creek scituate about 5 Miles above Newcastle in the Exhibit mentioned. 790 PENNSYLVANIA AND MARYLAND The Defendant, surely, was afraid we should not sufficiently falsity his Answer, and prove our true Cape Hinlopen, and so he takes Care to supply us with more and further Proof of it. And thus ends all the Proofs: wherein it appears most mar- vellous that the Defendant, who builds his whole Pre- tence of Imposition in that his own Map did not lay down Cape Hinlopen where the Dutch Maps did, has never at- tempted to produce one single Map, to support that As- sertion. Another material Omission on the Defendant's Part is, that he has not proved that original Map which he Produced and marked with his own Hand: and why? It is not that that is wanting, for Paris swears that Mr. Sharpe had it again from Mr. Senex, and Mr. Sharpe now swears that the printed Map is an exact Copy of it. But it is for this Reason, they know (and so Paris swears) that that original Map had many Marks, and Lines, and Notes about it, relating to the Circle, and therefore the Defend- ant conceals that original Map of his, because it would convict him.