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 HOUSE DOC. Xo. YI. / ^ 
 
 
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 ($rH>j 
 
 
 
 COMMUNICATION 
 
 FROM THE 
 
 GOVERNOR OF VIRGINIA 
 
 TRANSMITTING 
 
 REPORT OF THE COMMISSIONERS 
 
 TO ARBITRATE 
 
 THE BOUNDARY LIJ^E BETWEEN VIRGINIA AND MARYLAND, 
 
 COMMONWEALTH OF VIRGINIA, 
 Governor's Office, 
 
 Richmond, \^ih January^ 1877. 
 To the Senate and 
 
 House of Delegates : 
 I have the honor to transmit herewith the award of the Board of Arbitra- 
 tors, appointed to ascertain the line of boundary between Virginia and Mary- 
 land; also the several opinions of the arbitrators thereon, together with a map 
 exhibiting the adverse claims of the two states, and a communication from the 
 secretary of the Board. 
 
 ■ , JAMES L. KEMPER. 
 
House Doc. Xo. 6. 
 
 FIB7 
 
 Letter from the Secretary of ilie Board. 
 
 WASHIXGTO:., D. C, January 17, 1877. 
 To His Excellency James L. Kemper, 
 
 Governor of Virginia: 
 Dear Sir : 
 
 I have the honor to inform you tliat I forward per Adams Ex- 
 press the " Award and Opinion^^ of the Board of Arbitrators on the disputed 
 boundary line between the states of Virginia and Marj'land. 
 
 I also enclose a communication from the Boan; in regard to the compensa- 
 tion of the secretary. • 
 
 • Very respectfully, ) ours, etc., 
 
 A. W. GRAHAM, 
 
 Secretary of the Board. 
 
 The arbitrators to determine the boundary between Maryland and Vir- 
 ginia, in May, 1875, requested Aug. W. Graham, of North Carolina, to act as 
 secretary of the board. He has performed his responsible and laborious .duties 
 with unexceptionable fidelity and with mai-ked tibility. They have no author- 
 ity to fix his compensation, but have considered it right to express an oi:)inion 
 about it. After conference, they have directed me to say that they think the 
 sum of three thousand dollars moderate and rea>onable. 
 
 J. S. BLACK, Chairman. 
 Wasdington, January 17, 1877. 
 
House Doc. No. 6. 
 
 OPINION OF ARBITRATORS. 
 
 The undersigned are requested by the states of Virginia and Maryland to 
 ascertain and determine the true line of boundary between them. Having con- 
 sented to do this, in the capacity of arbitrators, we are about to make our award. 
 
 To examine the voluminous evidence, historical, documentary, and oral ; to 
 hear with due attention the able and elaborate arguments of counsel on both 
 sides, and to confer fully on the merits and demerits of this ancient contro- 
 versy, required all the time we bestowed on it. 
 
 The death of Governor Graham, in the midst of our labors, was a great loss 
 to the whole country ; but to us it was a special misfortune, for it deprived us 
 suddenly of the industry, the talent, the wise judgment, and the scrupulous 
 integrity upon which we had relied so much. Though these high qualities were 
 fully supplied by his distinguished successor, the vacancy occurring when it 
 did, set back our proceedings nearly to the place of beginning, and caused a 
 delay of almost a year. 
 
 Our first intention was to make a naked award, without any statement of the 
 grounds upon which it rested ; but after more reflection it seemed that the 
 weight of the cause, the dignity of the parties, and the wide difference of 
 opinion, grown inveterate by centuries of hostile discussion, made some expla- 
 nation of our judgment desirable, if not necessary. 
 
 The charter of Charles I to Cecilius, Baron of Baltimore, dated June 20th, 
 1632, gave to the grantee dominion over the territories described in it, and 
 made him governor of the colony afterwards planted there, with succession to 
 his heirs at law. These rights, proprietary as well as political, became vested 
 in 'the state of Maryland at the revolution. Inasmuch as that state claims under- 
 the charter, she must claim according to it. 
 
 Virginia, by her first constitution, as a free state (June 29th, 1776) disclaimed 
 all rights of property, jurisdiction, and government over territories contained 
 within the charters of Maryland and other adjoining colonies. The force of 
 this solemn acknowledgment is not, in our opinion, diminished by the dissatis- 
 faction which Maryland, as well as other states of the confederation, afterwards 
 expressed with Virginia's claim to a northern and western border, including all 
 lands ceded by France to Great Britain at the pacification of 1763. 
 
 Inasmuch as both of the states are bound by the king's charter to Lord Bal- 
 timore, and both confess it to be the only original measure of their territory, it 
 becomes a point of the first importance to ascertain what boundaries were as- 
 
4 House Doc. Xo. 6. 
 
 signed to Maiyland by that instrument. By what lines was the colony of 
 Maryland divided from those other possessions of the British Crown to which 
 Virginia afterwards succeeded as a result of her independence ? 
 
 The original patent delivered to Lord Baltimore by the king is irrecoverably 
 lost, and it is denied — at least it is not admitted — that we have an accurate 
 copy. It was registered in the high court of chancery when it passed the seal, 
 and an attested transcript from the rolls office is produced. It was written in 
 the law Latin of the pei'iod to whicli it belongs, and many of the words are 
 abbreviated. Another copy nearly, if not exactly, like that from the rolls, was 
 deposited in the colonial oflBce, and thence removed to the British museum. 
 The latter copy was changed long subsequent to the date of the charter by a 
 person who added some words, and extended others by interlining omitted 
 terminations. This is alleged to have been done for the purpose of making it 
 correspond with the original, wliich, according to the same allegation, was bor- 
 rowed from a member of the Calvert family for that purpose. We reject this 
 whole story as apocryphal. The interlineations were unauthorized except by 
 the judgment of the person who wrote them, that he was supplying elipses or 
 giving in full the true words meant by the contracted orthography. We are 
 obliged to believe that the patent was enrolled with perfect accuracy. The 
 conclusive presumption of law is that the high and responsible officers charged 
 with that duty did see it performed with all due fidelity. No doubt of this 
 can justly be raised upon the fact that abbreviated words are found in the regis- 
 try. Why should not these be in the original ? Nay, why should we expect 
 them not to be there? That mode of writing was the universal custom of the 
 time. It was used ift all legal papers and records as long as the law spoke 
 Latin. A deed in which these abbreviations occurred was not thereby vitiated. 
 What was the harm of writing A. D. for anno domini, fi. fa. for ^eri facias, or ca. 
 sa. for capias ad satisfaciendum ? Hcred. et assignat. was as good as heredihus et 
 assigraius suis, if all legists understood that one as well as the other was a limita- 
 tion of the fee to heirs and assigns. Adjectives and substantives without termi- 
 nations to indicate gender, number, or case did not lose their meaning, and the 
 omission of the concluding syllable might be some advantage to a conveyancer 
 who was rusty in his syntax. This habit of contracting words pervades, not 
 only the deeds, but the criminal pleadings of that time. A public accuser, 
 doubtful if the offense he was prosecuting violated two acts of parliament or 
 only one, charged it as contra formam staiut., and read the last word statuti or 
 statuiorwn, as the state of the case might require. The defendant's averment of 
 his innocence was recorded as a plea of non cuL When the attorney general 
 reasserted the guilt of the accused and declared his readiness to prove it, he 
 took one Latin and one Norman-French word, truncated them both, and said — 
 cid. prit. Even the last and most tragical part of the record in a capital case, 
 the judge's order to hang the prisoner by the neck, was curtly, but very intel- 
 ligibly written — sus. per col. 
 
 We are satisfied that the office copy is true ; that it is exactly like the origi- 
 nal ; and that the use of abbreviated words does not impair the validity of the 
 instrument. Moreover, that part of the charter which defines the boundaries 
 of the province speaks, not equivocally, but in terms so clear and apt that the 
 
House Doc. No. 6. 5 
 
 intent is readily perceived. It remains to be seen whether we can apply the 
 description to the subject-matter by laying the lines on the ground. To that 
 end it is necessary to ascertain how the geography of the country was under- 
 stood by the king and Lord Baltimore at the time when the charter was made. 
 
 In the great litigation between Penn and Lord Baltimore, a bill drawn up by 
 Mr. Murray, (afterwards Lord Mansfield,) or by some equity pleader under his 
 immediate direction, avers in substance that Charles I and the ministers whom 
 he consulted on Lord Baltimore's application had the map of Captain John 
 Smith before them when the boundaries of the colony were agreed on. This 
 was neither denied nor admitted in the answer of the defendant, who, being 
 third in descent from the applicant, had no personal knowledge about it. But 
 we take the fact to be certainly true, not only because we have the assertion of 
 it by Penn and his very eminent counsel, but because it is well known that 
 Smith's maj) was the only delineation then extant of that region, and his His- 
 tory of Virginia, to which the map was prefixed, had been before, and con- 
 tinued for a long time afterwards, to be the only source of information con- 
 cerning its geogra^Y^ Besides, a comparison of the map with the charter will 
 show by the sim plic ity of names, spelling, &c., that one must have been taken 
 from the other. 
 
 The editions of Smith's History, published by himself in 1012 and 1629, have 
 been produced, with the map thereto prefixed. Besides, we have one printed 
 in 1819 by authority of Virginia from the same plate used by Smith himself, 
 two hundred years before, and found, by a cui'ious accident, in a promiscuous 
 heap of old metal which had been imported from England to same town in 
 Pennsylvania. 
 
 With the charter in one hand and the map in the other, it may seem an easy 
 task to run these lines. But there are difficulties still. The map, though a 
 marvelous production, considering how and when it was made, is not perfectly 
 correct. Smith could not see and measure everything for himself, nor always 
 depend upon the observations of others. With his defective instruments he 
 could not get the latitude and longitude truly. He laid down some points and 
 places in the wrong relation to each other, and some not unimportant to us he 
 left out altogether. There are inaccui'acies here and there in the configuration 
 of a coast, the shape of an island, or the course of a river. Unfortunately the 
 style of his History is so confused and obscure that it throws no light on the 
 dark parts of the map. As a writer, he had great ambition and small capacity. 
 He could give some interest to a narrative of his own adventures, but any kind 
 of description was too much for his powers. There is another trouble: scarcely 
 any of the places marked on Smith's map, are now populai-ly known by the 
 names he gave them. Not only the names, but the places themselves, have 
 been much changed. Considerable islands are believed to have been washed 
 away, or divided by the force of the waters. Headlands which stretched far 
 out into the bay have disappeared, and the shore is deeply indented where in 
 former times the water line was straight, or curved in the other direction. Add 
 to this a certain amount of human perversity with which the subject was han- 
 dled in colonial days, and it is not surprising that representatives of the two 
 states have, with the most upright intentions, failed to agree in their views of 
 it. We are to reach, if possible, the truth and very right of the case. 
 
6 House Doc. Xo. 6. 
 
 T]3e boundaries of Maryland are described in the charter as beginning at 
 Watkins' Point and running due east to the sea, up the shore of the ocean and 
 the Delaware Bay, to the fortieth degree of latitude ; thence westward along 
 that degree to the longitude of the headwater of the Potomac; thence south- 
 ward to that river, and by it, or one of its banks, to Cinquack on the Chesa- 
 peake, and from Cinquack straight across the Bay to the place of beginning. 
 With the eastern and western borders we have nothing to do. Our interest in 
 the description of the Marjdand line begins at the northwest angle, where her 
 territory becomes contiguous to that of Virginia. 
 
 That line, on the western side, has been run and marked along its whole 
 course, and at both termini, in a way which commands the acquiescence of both 
 states. No question is raised here about the location of it. But it is necessary 
 to look somewhat narrowly into the call for it which the charter makes, because 
 that may influence our judgment on the lines which run from the head of the 
 river to the sea, every inch of which is contested. 
 
 The state of Virginia, through her commissioners and other public authori- 
 ties, adhered for many years to her claim for a boundary on the left bank of the 
 Potomac. But the gentlemen who represent her before us, expressed with great 
 candor their opinion that a true interpretation of the king's concession would 
 divide the river between the states by a line running in the middle of it. This 
 latter view they urged upon us with all proper earnestness, and it was opposed 
 with equal zeal by the counsel for Maryland, who contended that the whole 
 river was vi^thin the limits of the grant to Lord Baltimore. 
 
 AVhen a river is called for as a boundary between two adjacent territories, 
 (whether private property or public domains,) the line runs along the middle 
 thread of the water. A concession of lands to a stream does not stop at one 
 bank or cross over to the other, but finds its limit midway between them. But 
 a river may be included or excluded, if the parties choose to have it so. If the 
 intent is expressed that the line shall be upon one bank or another, the mere 
 force of construction cannot put it anywhere else. The natural interpretation 
 is the legal and proper one. 
 
 This is too obviously just to need the support of authority. But it was well 
 illustrated by the Supreme Court of the United States, in the case of IngersoU 
 V. Howard, (13 How., 481.) Alabama claimed to the middle of the Chatahoo" 
 chee, by virtue of a boundary described in a concession from Greorgia, thus : 
 " Beginning on the ivesicrn lank of the Chattahoochee river, where the same crosses 
 the boundary line between the United States and Spain; running thence up 
 the said river, and along the ivesiern lank thereof," &c. The court held that these 
 words established the line of boundary upon the western bank. There is some 
 resemblance between that case and tlie one under consideration. 
 
 The northern boundary of Maryland is by the charter to run westward to the 
 true meridian of the first fountain of the Potomac. That point being ascer- 
 tained, it shall turn at right angles and run towards (literally against) the south — 
 vergendo versus meridiem^' — where? "«(/ ulierioram prcdicti Jluminis ripam^' — to the 
 further bank of the aforesaid river. Approaching the river from the north, the 
 further bank is the south bank of course. The description proceeds, without a 
 pause, thus: "ei earn sequcndo qua plaga occidentalls ad meridionalem spectat usque ad 
 
House Doc. ^o. 6. 7 
 
 locum quendam appellatum Cinquack." Now, the words, "m?n sequendo,^^ are a di- 
 rection that something shall be followed in running the line between the point 
 already fixed on the south bank of the Potomac, where it rises in the mountain, 
 and Cinquack, which is on the same side of the river, near to its mouth. What 
 shall we follow ? Clearly earn ripam, and clearly not id flumen, if we take the 
 grammatical sense of the phrase. Another consideration impresses us a good 
 deal. Lawyers, in the reign of Charles I, wrote Latin in the idiom of the ver- 
 nacular tongue. We would naturally expect to see the thought of these parties 
 expressed by words arranged in the English order, thus: ad ulterior em ripam pre- 
 dicti Jluminis et sequendo earn. The other and more classical collocation was not 
 adopted for its euphony, but for the sake of precision. It bi'ought ripam and 
 cam into close juxtaposition, and made the antecession so immetliate that it 
 could not be mistaken. The interjected phrase, '■'■ qua plaga occidentalis ad merid- 
 ionalem speciat," has had its share of the minute verbal criticism bestowed upon 
 the whole document; but we see nothing in it except an attempt (perhaps not 
 very successful) to describe the aspect of the western shore, where it turns to 
 the south. Certainly there is nothing there which requires the line to leave the 
 river bank. Apart from all this, it looks utterly impi'obable that the two termini 
 of this line should both have been fixed on the south side of the river without 
 a purpose to put the line itself on the same side. The intent of the charter is 
 manifest all through to include the whole river within Lord Baltimore's grant. 
 It seems to us a clearer case than that decided in Ligersoll v. Howard. 
 
 For these reasons we conclude that the charter line was on the right bank of 
 the Potomac, where the high-water mai'k is impressed upon it, and that line 
 follows the bank along the whole course of the river, from its first fountain to 
 its mouth, and ^^ usque ad locum quendam appellatum Cinquack.^' 
 
 Where is the place called Cinquack? It must have had a certain degree of 
 importance in Smith's time as a landing place, a village, or the residence of 
 some aboriginal chief. But there is now no visible vestige of it. Even its 
 name has perished from the memory, of living men. Nevertheless, the place 
 where it once was can be easily found. The charter describes it as "prope 
 Jluminis ostium^^ — near the mouth of the river; and Smith has marked it on his 
 map about six miles south of the place where the river joins the bay. This 
 point was no doubt chos^en as the terminus of the long river line, because it 
 was the only place near the mouth of the Potomac, on that side, to which 
 Smith's map gave a name ; and it furnishes one among many circumstantial 
 proofs that no other map was consulted in drafting the charter. Having found 
 this corner, it becomes our duty to trace the lines which lead us thence over 
 the bay and across the eastern shore to the sea. 
 
 From Cinquack to the ocean the charter gives only two lines. One, starting 
 at Cinquack, goes straight to Watkins' Point, the other runs from Watkins' 
 Point due east to the seashore. There will be no possible mistake about these 
 lines if we can find out the precise situation of Watkins' Point. 
 
 This point being the commencement and closing place of the boundary is 
 twice named, and once its locality is given with reference to other objects. It 
 is described as lying "JM.rto sinum predictum prope flumen de Wighco ;" that is to 
 say, on (or close to) the aforesaid bay (the Chesapeake) and near the river 
 
8 House Doc. Xo. 6. 
 
 Wighco. Looking at Smith's map we find a cape extending southwestwardly 
 from the mainland of the eastern shore. This cape is called "Watkins' Point 
 by Smith himself on his map, and he has marked the waters on one side 
 Ckesapeack Bay, and on the other Wighco fltimen. Turning to the modern maps, 
 and especially to those of the Coast Survey, where everything is measured with 
 fractional accuracy, we find the same point of land laid down, not quite in the 
 same latitude nor delineated with exactly the same shape, but bordered by the 
 same waters, and with no variance which makes its identity at all doubtful. It 
 is at present the extreme southwestern point of Somerset county in Maryland 
 at Cedar Straits, juxta the Chesapeake and prope the Pocomoke, which is now 
 the name for Wighco. Being the Watkins' Point of Smith's map, it is the 
 Watkins' Point of the charter. 
 
 This conclusion appears to be inevitable from the premises stated; but it does 
 not receive universal assent. We must therefore notice the principal grounds 
 on which its correctness is impugned. 
 
 In the first place, the fundamental fact is denied that Smith, by his own map, 
 affixed the name of Watkins' Point to the headland in question. In other words, 
 it is alleged, that though the point is laid down and the name written in 
 proximity to it, the one does not apply to the other. Let the map speak for 
 itself. An inspection of it will show that all the names of such points are 
 written in the same way. Nor is there any other point to which it can, with 
 reasonable propriety, be referred. 
 
 The map has been uniformly read as we read it. Lord Baltimore showed 
 how he understood it. In 1635, only three years after the date of his charter, 
 he printed what he called a " Relation of Maryland," and prefixed to it a map 
 on which Watkins' Point is laid down at Cedar Straits, with the beginning and 
 closing lines of his boundary running from and to it. It is not likely that he 
 could be mistaken, nor is it supposed that he fraudulently misstated the fact, 
 and he was not contradicted by the ministers of the Crown or by anybody in- 
 terested in the Virginia plantation. 
 
 In 1670 Augustin Ilerrman, the Bohemian, published a map fuller than the 
 previous ones, and there we have Watkins' Point at Cedar Straits verj- con- 
 spicuously marked, and the two lines closing at its southern end. What makes 
 this stronger is, that in 1668 the line between the colonies had been marked 
 east of the Pocomoke by Calvert and Scarborough oh a latitude considerably 
 higher than an eastern line from Watkins' Point; but Herrman considered 
 Watkins' Point so definitely fixed, and the call for a straight eastern line thence 
 to tlie ocean so overruling, that he assumed the coincidence of the Scarborough 
 line with his own, and so laid it down. 
 
 In the map of Peter Jefferson and Joshua Fry, of which a French copy was 
 engraved and printed at Paris in 1755, and a second English edition at London 
 in 1775, dedicated by tne i)ublishers to the Lords Commissioners of Trade and 
 Plantations, we find Watkins' Point unmistakablj' laid. down at the mouth of 
 the Pocomoke, with the Scarborough and Calvert line from the sea to the Poco- 
 moke so drawn that a westward extension of it would strike exactly, or very 
 nearly, that place. 
 
House Doc. No. 6. 9 
 
 ^Mr. Thomas Jefferson published his Notes on Virginia in 1787, with a map, 
 on which the strongly-marked boundary runs to the ocean by an East line from 
 Watkins' Point at Cedar Straits; and he, like Herrman and the others, took it 
 for granted that this, and no other, was the line marked by Scarborough and 
 ■Calvert. 
 
 Mitchell's map (1750-1755) bears similar testimony to the situation at Wat- 
 kins' Point. So do several others of the last century and many of more recent 
 times. 
 
 It is useless to particularize more authorities like these. Let it be enough to 
 say, that all geographers for two centuries and a half have understood Smith's 
 majD as calling what is now the southern extremity of Somerset county Wat- 
 kins' Point; nor is it known otherwise in the general speech of the country. 
 Smith's designation has adhered to it through all changes. If that be not its 
 true name, it never had any name at all. 
 
 But the fact rests on stronger proof than that. It is established by the uni- 
 form and universal consent of both states and all their people. Maryland 
 steadily claimed it as her actual border, and Virginia never practically denied 
 the claim by taking territory immediately above it. Eastward and westward, 
 where the lines were invisible, both jiarties made mistakes. But Watkins' 
 Point or the territory near it was not debatable ground. All men, except per- 
 haps Colonel Scarborough, recognized'and respected the great landmark when 
 they came within sight of it. 
 
 But even that is not all. In 1785 some of the most eminent men of the two 
 states came together at Mount Vernon to arrange the difficulties between 
 them. Standing face to face, those commissioners concurred in saying that 
 Watkins' Point was the boundary mark to which the line from the western 
 shore would run; and they described its situation very unequivocally when 
 they spoke of it as ''Watkins' Point, near the mouth of the Pocomoke river." 
 Kemembering that this compact was di'awn up with most conscientious care, 
 agreed to after cautious examination, ratified by the legislatures of both states, 
 rigidly adhered to by all parties ever since, and still i-egarded as of such sacred 
 obligation that all power to touch it is withheld from us, we feel ourselves lite- 
 rally unable to fix the Watkins' Point of the charter anywhere else than at 
 the place then referred to as the true one. 
 
 It is suggested that the charter could not have meant the point at Cedar 
 Straits, because it is called a promontory, which implies high land, whereas this 
 is a dead level, rising but slightly above the waters on either side. That argu- 
 ment is easily disposed of The map did not indicate whether the land was 
 high or low, and therefore care was taken to employ two alternative terms, of 
 which one would surely fit the case if the other would not. The charter says 
 that the beginning line shall run east to the ocean "a promontorio sive capite 
 TERR.E wcaio Watkins' Point;" from the promontory or headland. The same 
 abundamt caution is observed again when the point comes to be mentioned as 
 the terminus of the closing line, which is required to run ''per lineam brevissimam 
 usque ad predictum promontorium siVE locum vocatum Watkins' Point." Thus the 
 controlling call of the charter is for Watkins' Point, by its given name, whether 
 
 2 
 
10 House Doc. Xo. 6. 
 
 it be a high promontoiy or a low headhind, or merely a place whose character is 
 not properly signified by eitlier word. 
 
 We proceed to another objection. Sraitli, in his account of the explorations 
 made by himself and others with him, says, in eflPect, that they landed at divers 
 places mentioned (among others Watkins' Point), and at all those places marked 
 trees with crosses, as "a notice to any. Englishmen had been there.'" Xow 
 there are not, and probably never were, trees capable of being so marked on 
 the Watkins' Point which lies at Cedar Straits; therefore, it is argued that 
 Watkins' Point is not Watkins' Point. Those who think this deduction legiti- 
 mate would remove the point in question from the place where Smith puts it 
 on his maj), where all geographers have placed it, where the charter describes 
 it to be, and where by the general consent it is, rather than believe that Smith, 
 in his confused way of writing, exaggerated the truth or committed an error 
 about so unimportant a matter as that of marking trees at all points where he 
 landed. 
 
 It is alleged that another place, higher up the shore and near to the mouth 
 of the Annamessex, is the true AVatkins' Point of the charter. There is (or 
 rather there was) a point there of considerable magnitude and some elevation, 
 which has now entirely disappeared. Smith noted it as a triangular extension 
 of the mainland into the bay; in 1665 persons, who had then recently seen it, 
 described it as "a small spiral jioint," whatever that may mean; and later evi- 
 dence shows that there was a i)each orchard upon it. In a sworn affidavit of 
 Captain Jones, used in 1665 by Virginia, it is referred to as "a small point 
 described on Captain Smith's map without a name." Why should we suppose 
 this to be the place called for in the charter as Watkins' Point? It was not so 
 nominated on the map, or anywhere else. Smith, so far from ever speaking or 
 writing about it as Watkins' Point, gave it another and a different name. Dr. 
 Eussell, who was with him when he made his explorations, says that it was 
 called Point Ployer, "in honor of that most honorable house of Monsay, in 
 Brittaine, that in an extreme extremity once relieved our Captaine." Can any 
 thing be more complete than the failure of this effort to substitute the place 
 called Point Ployer for the place called Watkins' Point? 
 
 But it is said that Scarborough and Calvert agreed in 166S that the line from 
 the sea should run to the Annamessex, and not to the Pocomoke. That is not 
 the point of the present question. We are now inquiring where the boundaries 
 Avere originally fixed. A conventional arrangement of those commissioners 
 might bind their constituents for the after time, but it could not change the 
 pre-existing facts of the case or make that a false, which before Ayas a true, 
 interpretation of the charter. Nor is any opinion or conclusion expressed or 
 acted upon by them entitled to much consideration as evidence. If Philip 
 Calvert (hovght that the charter limit was at Point Ployer, he was grossly 
 deceived, and Colonel Scarborough knew very well that it was not there, for he 
 had previously declared on his corporal oath that the " small spiral poini " near 
 the Annamessex was south of the charter call "about as far as a man could see 
 on a clear day." 
 
 Some stress is laid upon another fact. In 1851 the Fashion, a vessel of wliich 
 John Tyler, a Marylander, was owner and master, was arrested for dredging in 
 
House Doc. K"o. 6. 11 
 
 Marj'land waters. The justice of the peace before whom the proceeding was 
 instituted condemned her, but on appeal to the county court the judgment 
 was reversed. The record does not show the grounds of the condemnation or 
 the reasons of the reversal; but Tyler himself deposes from memory that he 
 was finally cleared on the testimony of two old men, who swore to a state line 
 running across Smith's Island about three-quarters of a mile above Horse Ham- 
 mock, and over the bay to the mouth of the Annamessex, which would throw 
 the locus in quo of the offence within the jurisdiction of Virginia. If we assume 
 that the issue, the evidence, and the legal reasons of the judgment, are cor- 
 rectly reported by an unlearned man a quarter of a century after the trial, the 
 inference is a fair one that the court of Somerset county believed, the line to be 
 where the witnesses said it was, and not at Horse Hammock on one side of 
 Tangier Sound, or at Watkins' Point on the other. But are we now bound to 
 accept that evidence as infallibly true? If it were delivered before us in the 
 pending cause by the witnesses themselves, we would take it at its worth. Its 
 probative force is certainly not increased by being fished up from the oblivion 
 of twenty-five years and produced to us at second hand. We do not under- 
 stand that anybody supposes the judgment itself to be binding as a determina- 
 tion of the subject matter between the two' states. The traditionary line of 
 Tyler's grandfather and old Mr. Lawson must stand or fall by the natural 
 strength of the facts which support and oppose it. Now it is perfectly ascer- 
 tained that Virginia in 1851 did not pretend to have any claim on Smith's 
 Island above Horse Hammock, nor within the limits of Somerset county on 
 the bay shore above Watkins' Point. This record of the Fashion case, con- 
 sidered as evidence of a line at Annamessex, is illegal, insufficient, and unsatis- 
 factory, while the proofs which show that in truth the line was at Watkins' 
 Point are irresistible and overwhelming. 
 
 If we are right thus far, it follows that the original line as fixed and agreed 
 by the King and Lord Baltimore runs from Cinquack by a straight line to the 
 extreme southwestern part of Somerset county, Maryland, which we find to be 
 the true Watkins' Point of the charter, and thence by a straight line to the 
 Atlantic ocean. These lines will be seen on the accompanying map, marked 
 and shaded in blue. 
 
 But this is not the present boundary. How firmly soever it may have been 
 fixed originally, a compact could change it, and long occupation inconsistent 
 with the charter is conclusive evidence of a concession which made it lawful. 
 
 Usucaption, prescription, or the acquisition of title founded on long posses- 
 sion, uninterrupted and undisputed, is made a rule of property between indi- 
 viduals by the law of nature and the municipal code of every civilized country. 
 It ought to take place between independent States, and according to all au- 
 thority it does. There is a supreme necessity for applying it to the dealings of 
 nations with one another. Their safety, the tranquility of their people, and 
 the general- interests of the human race do not allow that their territorial rights 
 should remain uncertain, subject to dispute, and forever ready to occasion 
 bloody wars. (See Vattel, Book II, chap. 11, and Wheaton, Part II, chap. 4, 
 sec. 4, citing Grotius Puflfendorf and Rutherforth.) The length of time which 
 creates a right by prescription in a private party raises a presumption in favor of 
 
12 House Dqc. Xo. 6. 
 
 a state, that is to saj^, twenty years. (Knapp's Rep., CO to 73.) It is scarcely 
 necessary to add that the exercise of a privilege, the perception of a profit, or 
 the enjoyment of what the common law calls an easement, has the same effect 
 as the possession of corporeal property. It behooves us, then, to see whether 
 the acts or omissions of these states have or have not materially changed their 
 original rights and modified their boundaries, as described in the charter. We 
 will look first at the Potomac. 
 
 The evidence is sufficient to show that Virginia, from the earliest period of 
 her history, used the South bank of the Potomac as if the soil to low water- 
 mark had been her own. She did not give this up by her Constitution of 1776, 
 vrhen she surrendered otherclaims within the charter limits of Maryland ; but 
 on the contrary, she expressly reserved " the property of the Virginia shoi-es 
 or strands bordering on either of said rivers, (Potomac and Pocomoke,) and all 
 improvements which have or will be made thereon." By the compact of 1785, 
 Maryland assented to this, and declared that "the citizens of each State re- 
 spectively shall have full property on the shores of Potomac and adjoining their 
 lands, with all emoluments and advantages thereunto belonging, and the privi- 
 lege of making and carrying out wharves and other improvements." We are 
 not authority for the construction of this compact, because nothing which con- 
 cerns it is submitted to us ; but we cannot help being influenced by our con- 
 viction (Chancellor Bland notwithstanding) that it applies to the whole course 
 of the river above the Great Falls as well as below. Taking all together, we 
 consider it established that Virginia has a proprietary right on the south shore 
 to low water-mark, and, appurtenant thereto, has a jirivilege to erect any struc- 
 tures connected with the shore which may be necessary to the full enjoyment 
 of her riparian ownership, and which shall not impede the free navigation or 
 other common use of the river as a public highway. 
 
 To that extent Virginia has shown her rights on the river so clearly as to 
 make them indisputable. Her efforts to show that she acquired, or that Mary- 
 land lost, the islands or the bed of the river, in whole or in part, have been 
 less successful. 
 
 To throw a cloud on the title of Maryland to the South half of the river, the 
 fact is i^roved that in 1GS5 the King and Privy Council determined to issue a 
 Quo Warranto against the Proj^rietary of Maryland, " whereby the powers of 
 that charter and the government of that province might be seized into the 
 King's hands" for insisting on "a pretended right to the ivhole river of Potow- 
 mack " and for other misdemeanors. This was a formidable threat, considering 
 what a court the King's Bench was at that time; but it never was carried out, 
 and we can infer from it only that the then Lord Baltimore was not in favor 
 with the ministry of James II. 
 
 What is called the Ilopton grant was confirmed to the Earl of St. Albans and 
 others in 1G67 by Charles II. It included all the land between the Rapjiahan- 
 nock and the Potomac, together with the islands xvithin the banks of those rivers and 
 the rivers themselves. The rights of the original grantees became vested in Lord 
 Fairfax and his heirs, who sold large portions of it, and as to the rest, the com- 
 monwealth first took it by forfeiture and afterwards bought out the Fairfax 
 title from the alienees of his heirs. It is not pretended that this grant could. 
 
House Doc. No. 6. 13 
 
 propria vigore, transfer the title of the Potomac islands from Lord Baltimore to 
 the Earl of St. Alban's ; but it is argued that, as Lord Baltimore must have 
 known of it, and did not protest or take any measure to have it cancelled, his 
 silence, if not conclusive against him by way of equitable estoppel, was at least 
 an admission that he did not own the islands or the bed of the river in which 
 they lay. "VVe answer that he had a right to be silent if he chose ; his elder 
 and better title, which was a public act, seen and known of all men, spoke 
 for him loudly enough. Besides that, his subsequent possession of the islands 
 was the most emphatic contradiction he could give to any adverse claim, or 
 pretense of claim, under the Hopton grant. 
 
 But these conflicting grants of the islands increased the importance of know- 
 ing how and by whom they had been occupied. The exclusive possession of 
 Maryland was affirmed and denied upon evidence so uncertain that we thought 
 it right to postpone our determination for several weeks, so as to give time for 
 the collection of proper proofs. When these came forth they showed satisfac- 
 torily that Maryland had granted all the islands, taxed the owners, and other- 
 wise exercised proprietary and political dominion over them. Three Virginia 
 grants were produced which purported to be for islands in the Potomac, but on 
 examination of the surveys it appeared that they were not in, but upon, the 
 river. One is in Nomini Bay, and the other two are called islands only because 
 they lie with one side on the shore, while the other sides are bounded by inland 
 creeks. All are on the Virginia side of the low-water mark, which we have said 
 was the boundary between the states. 
 
 It being thus shown that there is nothing to deflect the line from the low- 
 water mark, we ar^ next to see whether its eastern terminus has been changed. 
 That it certainly has. Cinquack was quietly ignored so long ago that no recol- 
 lection, nor even tradition, exists of any claim by Maryland on the bay shore 
 below the Potomac. When the compact of 1785 was made. Smith's Point, pre- 
 cisely at the mouth of the river, on the south side, was assumed by both states 
 to be the starting place of the line across the bay. 
 
 Nor does the line now run from Smith's Point, per lineam brevissimam, to Wat- 
 kins' Point. It holds a course far north of that, so as to strike Sassafras Ham- 
 mock, on the western shore of Smith's Island, and take in Virginia's old pos- 
 session there. It reaches Watkins' Point, not by the one straight line called 
 for in the charter, but by a broken line, or rather by several lines uniting at 
 angles more or less sharp. Before we explain how this came about it is neces- 
 sary to observe some facts in the general history of the eastern-shore boundary. 
 While the situation of Watkins' Point at the mouth of Pocomoke was not 
 doubted, nobody knew where the lines running to and from it would go, or 
 what natural objects they would touch in their course. East and west, where- 
 ever the solitary landmark could not be seen, a search for the boundary was 
 mere guess-work, and some of the conjectures were amazingly wild. The peo- 
 ple there seem to have had none of that ready perception of courses and dis- 
 tances which an Indian possesses intuitively, and which a pioneer of the 
 present day acquires with so much facility. 
 
 Almost immediately after the planting of the Maryland colony, some of its 
 officers claimed jurisdiction on the eastern shore, nearly twelve miles south of 
 
14 House Doc. Xo. 6. 
 
 a true east line from Watkins' Point. Sir John Harvey, "[then governor and 
 captain-general of Virginia, with the advice of the council, conceded the 
 claim, and on the 14th of October, 1638, issued a proclamation, declaring the 
 boundary to be on the Anancock, and commanding the inhabitants of his colony 
 not to trade with the Indians north of that river. We discredit the allegation 
 that this was a fraudulent collusion between the governor of Virginia and the 
 agents of the Maryland proprietary. It was a mutual mistake — a very gross 
 one to be sure — and not long persisted in. It served now only to show how 
 loose were the notions of that time about these lines. 
 
 Soon after this (but the time is not ascertained) a similar blunder was made 
 westward of Watkins' Point. This was not a claim by Maryland below the true 
 line, but by Virginia above it. Smith's Island lies out in the Chesapeake Bay, 
 quite north of any possible line called for by the charter. But the relative sit- 
 uation of that island being misapprehetided, Virginia took quiet and unopj^osed 
 possession upon it, and holds a large part of it to this day. 
 
 No wilful transgression of the charter boundary took place before 1G64. Then 
 rose Col. Edmond Scarborough, the King's surveyor-general of Virginia. His 
 remarkable ability and boldness made him a jDower in Virginia, and gave him 
 great mental ascendency wherever he went. He had no respect for Lord Balti- 
 more's rights, and, when he could not find an excuse for^invading them, he did 
 not scruple to make one. -At the head of forty horsemen, "for pomp and safe- 
 ty," he made an irruption into the territory of Maryland, passing Watkins' 
 Point, and penetrating as far as Monoakin, where he arrested the officers of the 
 Proprietary and harried the defenceless people. 
 
 To justify this proceeding he referred to an act of the grand assembly of 
 Virginia, (passed without doubt by his influence,) which declares Watkins' Point 
 to be above Monoakin, authorizes the survej'or-general to make publication com- 
 manding all persons south of Watkins' Point to render obedience to his majes- 
 ty's government of Virginia, and requiring Col. Scarborough, with Mr. John 
 Catlett and Mr. John Lawrence, or one of them, to meet the Maryland authori- 
 ties, upon due notice, (if they were not fully convinced of their intrusions,) and 
 debate and determine the matter with them. Scarborough did none of these 
 things. His conduct throughout violated the act of the Virginia assembly as 
 grossly as it violated the Maryland charter. 
 
 To vindicate the claim for a boundary as high up as Manoakin, he put in his 
 own affidavit, and that of seven others, that the place described in Ciipt. Smith's 
 map for Watkins' Point, was not at the Pocomokc nor at the Annamessex, but 
 as far above the small spiral point at the mouth of the latter river as a man 
 could see in a clear day, and that the Pocomoke was never called or known by 
 the name of Wighco. This was sworn to in the very liice of the map itself, 
 where Watkins' Point was described as lying on the Pocomoke, and where the 
 Pocomoke was distinctly named the Wighco. \ 
 
 In June, 1G64, Charles Calvert, lieutenant-governor of Maryland, sent Philip, 
 the chancellor, on a special mission to Sir William Berkeley, then governor- of 
 Virginia, to demand justice upon Scarborough for entering the province of Ma- 
 ryland in a hostile manner, for outraging the inhabitants of Annamessex and 
 Manoakin by blows and imprisonment, for attempting to mark a boundary thirty 
 
House Doc. Xo. 6. 15 
 
 miles north of Watkins' Point, and for publishing a proclamation at Manoakin 
 wholly unauthorized. Col. Scarborough was too great a man to be punished, 
 but his acts were repudiated, the claim for his spurious boundary was disavowed, 
 Watkins' Point was again fully acknowledged to be where it always had been, 
 and so the land had rest for a season. 
 
 But the quiet time did not last long. The very next year we find Colonel 
 Scarborough on the east side of the Pocomoke, north of the boundary, cutting 
 out a large body of Lord Baltimore's land, and dividing it by surveys to himself 
 and his friends. The necessity was manifest for having the true line traced and 
 marked on the ground between Watkins' Point and the sea. To do this Colo- 
 nel Scarborough was appointed a commissioner on one side, and Philip Calvert 
 on the other. But, instead of closing the controversy as their respective con- 
 stituents intended, their work was done so imperfectly that it has been a prin- 
 cipal cause of error and misunderstanding ever smce. 
 
 Their instructions, as recited by themselves, required them to "meet upon 
 the place called Watkins' Point." That they did m^et there does not appear, 
 but they say that, "after a full and perfect view of the point of land made by 
 the north side of Pocomoke Bay and the south side of Annamessex, we have 
 and do conclude the same to be Watkins' Point, from which said point, so called, 
 we have run an east line, agreeable with the extremest part of the western 
 angle of said Watkins' Point, over the Pocomoke river, to the land near Eobert 
 Holston's, and there have marked certain trees which are continued by an east 
 line to the sea," &c. ; and they agreed that this should be I'eceived as the 
 bounds of the two provinces "on the eastern shore of the Chesapeake bay." 
 Whosoever shall try to get at the sense of this document, will find himself 
 *' perplexed in the extreme." What was it that they concluded to be Watkins' 
 Point ? Not the whole body of the territory between the Annamessex and 
 the Pocomoke. Nobody understands it in that way. Not Point Ployer ; for 
 they both knew, and one of them swore, it was not there. Did they actually 
 run any line west of the Pocomoke ? If yes, they must have known with per- 
 fect certainty where the true line would cross the river ; and in that case, what 
 was the necessity for founding a mere conclusion about it upon the lay of the 
 land between the two bays? If it was then ascertained by actual demonstra- 
 tion with the compass that a western extension of the marked line would strike 
 Watkins' Point, why does it not strike that point now, instead of terminating, 
 where it does, far above, at the Annamessex? Again, why was it not marked ? 
 Why was it never recognized, acknowledged, or claimed by either party after- 
 wards? Our rendering may seem a strain upon the words, but we infer from 
 the paper and the knoYvn facts of the case, that the commissioners, instead of 
 meeting at Watkins' Point, came together on the east bank of the Pocomoke, 
 from thence took a view of the country on the other side, and thereupon 
 erroneously concluded that an east line running from Watkins' Point would 
 cross the Pocomoke at the place near Holston's, where they marked certain 
 trees. ThJ^ being satisfactory to themselves, they proceeded, without further 
 preliminary, to mark the eastern end of the line between the river and the sea. 
 
 Scarborough may have known that he was not on the true line, but if so he 
 kept his knowledge to himself. It is very certain that Calvert had full faith in 
 
16 House Doc. Xo. 6. 
 
 the correctness of his work. No doubt he lived and died in the belief that the 
 marks he assisted to make were on a due east line from the westermost angle 
 of "Watkins' Point, properly so called. If any one thinks this a.blunder too gross 
 to be credited, let him remember by whom it was shared. Herrman and all sub- 
 sequent mapmakers place the marks on the straight line where Calvert thought 
 it was. All the public men of the colonies had the same opinion. The error 
 was not discovered, nor even suspected, for more than a hundred years. 
 
 But it is argued that the call of the charter is for a straight line ; that com- 
 missioners were appointed to ascertain where it ran ; that they did ascertain it, 
 and marked a part of it; that their judgment being conclusive, the whole line 
 is established as certainly as if it had been marked. So far as this is a geomet- 
 rical proj^osition, it is undoubtedly true. Bnt mathematics cannot determine 
 this case against law and equity. 
 
 Their own description of the line they agreed upon is inconsistent with itself. 
 They call it an east line from Watkins' Point, and give it an outcome by a 
 course corresponding with,IIolston's tree. If this be a straight line, how shall 
 we find it? If we begin at Watkins' Point and run east to the sea, we go far 
 below the marked line ; if we begin at the marks and run west to the bay, we 
 reach the Annamessex, which is equally wide of the fixed terminus at that end. 
 Yet by one way as much as by the other, we follow the agreed line of the com- 
 missioners. We reconcile these contradictions, and carry out the whole agree- 
 ment, if we run the east line from Watkins' Point until it begins to conflict 
 with the marked line, and from there to the ocean let the marked line be taken 
 for the exclusively true one. 
 
 Plainly, it never was intended by the commissioners, or anybody else, that 
 the territory west of the Pocomoke should be divided by a line extending 
 westward from Holston's to the mouth of the Annamessex. If that was the 
 technical effect of the agreement, it was instantly repudiated by the common 
 consent of both provinces. Maryland had held before, and continued after- 
 wards to hold and possess, all the territory between the Pocomoke and the Bay 
 down to the latitude of Watkins' Point, granting the lands, taxing them in the 
 hands of her gi'antees, and ruling all the inhabitants according to her laws and 
 customs. Her jurisdiction was not intermitted, nor any of her rights suspen- 
 pended, for a moment. Virginia never expressed a suspicion that this posses- 
 sion of Maryland was inconsistent with any right of hers under the agreement. 
 Scarborough himself acquiesced in it to the day of his death as a true con- 
 struction of his covenants with Calvert. 
 
 Our conclusion is that Virginia, by the agreement and her undisturbed oc- 
 cupancy, has an undoubted title to the land east of the Pocomoke, as far north 
 as the Scarborough and Calvert line, while Maryland, by the charter and by 
 her continued possession under it, has a perfect right to the territory west of 
 the Pocomoke and north of Watkins' Point. 
 
 We must now go back to Smith's Island. That island is clearly north of 
 the charter line, and all the rights which Virginia has there must depend on 
 the proofs which she is able to give of her possession. The commissioners, 
 agents, and counsel on both sides have, with infinite labor, collected a great 
 volume of evidence on this part of the case, and discussed it at much length. 
 
House Doc. Xo. 6. 17 
 
 In early times Virginia granted lands high up on the island; and Marjdand, 
 without expressly denying the right of Virginia, made grants of her own in 
 the same region. The lines of these grants are so imperfectly defined by the 
 surveys that it is not at all easy to tell where they are, and some of them are 
 believed to lie afoul of others. The occupancy, like the titles, was mixed and 
 doubtful. The inhabitants did not know which province they belonged toj 
 at least that was a subject on which there were divers opinions. 
 
 A line running nearly across the middle of the island was at first claimed by 
 Virginia as being the old boundary; but a subsequent personal examination 
 and a more careful reconsideration of the evidence brought the -counsel them- 
 selves to the opinion that a claim by that line could not be supported. They 
 insisted, however, and do still insist, that another line, which runs about three- 
 quarters of a mile above that from Sassafras Hammock to Horse Hammock 
 was and is the true division. There is some evidence that this was once thou-^ht 
 to be the boundary. 
 
 Two grants, one by Maryland and one by Virginia, each calling for the divi- 
 sional line between the states, without describing where the divisional line 
 was, were so located on the ground that they met on the line in question. It 
 is inferred from this that a line had been previously run at that place, which 
 was understood to be the division between the provinces or the states. But 
 this argument a priori is all that sup»ports the theory of a state line there. If 
 it ever was actually run, it cannot now be told by whom, when, for what pur- 
 pose, by what authority, or precisely where. All the evidence relating to it is 
 very doubtful. It dates back to what may be called the prehistoric times of 
 the island. Some witnesses affirm and others deny, on the authority of their 
 forefathers, that this was the dividing line of the states. But none of them 
 can give ahy substantial grounds for his belief. 
 
 Out of this contradictory evidence and above the obscurity of vague tradition 
 there rises one clear and decisive fact, which is this : That for at least forty 
 years last past Maryland has acknowledged the right of Virginia up to a line 
 which, beginning at Sassafras Hammock, runs eastward across the island to 
 Horse Hammock, and Virginia has claimed no higher. By that line alone both 
 states have limited their occupany for a time twice as long as the law requires 
 to make title by prescription. By that line Maryland has bounded her election 
 district and her county. North of it all the people vote and pay taxes in 
 Maryland, obey her magistrates, and submit to the process of her courts. 
 South of it lies, undisturbed and undisputed, the old dominion of Virginia. 
 We have no doubt whatever that we are bound to regard that as being now the 
 true boundary between the two states. There are not two adjoining farms in 
 all the country whose limits are better settled by an occupancy of forty years, 
 or whose owners have more carefully abstained from all intrusion upon one 
 another within that time. 
 
 We have thus ascertained to our entire satisfaction the extent and situation 
 of the territory which each state has held long enough to make a title by pre- 
 scription, and the boundary now to be determined must conform to those 
 possessions, no matter at what expense of change in the original lines. We 
 3 
 
18 House Doc. Xo. 6. 
 
 know therefore Low the land is to be divided. But how does prescriptive title 
 to land affect the right of the parties in the adjacent waters? 
 
 It has been argued with great force and ingenuity that a title resulting 
 merely from long possession can apply only to the ground which the claimant 
 has had under his feet, together with its proper appurtenances; that a river, a 
 lake, or a bay is land covered with water; that land cannot be appurtenant to 
 land; that therefore title by prescription stops at the shore. But this is 
 unsound, because the water in such a case is not claimed as appurtenant to the 
 dry land, but as part of it. One who owns land to a river owns to the middle 
 of the channel'. Upon the same principle, if one state has the territory on 
 both sides the whole river belongs to her. Nor does it make any difference 
 how large or how small the body of water is. The Romans called the Mediter- 
 ranean Mare Nostrum, because her territory surrounded it on all sides. This 
 construction applies with equal certainty to every kind of title, whether it be 
 acquired by express concession, by lawful conquest, or by the long continuance 
 of a possession which, at first, may have been but a naked trespass. In the 
 last case the silent dereliction of the previous proprietor implies a grant of his 
 whole I'ight as fully as if it had been given by solemn tjeaty. 
 
 A few observations upon the several sections of the J^roken line which we 
 adopt in place of the straight line of the charter will suffice to apply the prin- 
 ciples we have endeavored to set forth. 
 
 We run to Sassafras Hammock and from that to Horse Hammock, because 
 we cannot in any other possible way give Virginia the part of Smith's Island 
 to which she shows her right by long possession. 
 
 We go thence to the middle of Tangier Sound and from thence downward 
 we divide Tangier Sound equally between the two states, because the possession 
 of Virginia to the shore is proof of a title whose proper boundary is the middle 
 of the water. We give Maryland the other half of the sound for the same or 
 exactly a similar reason, she being incontestibly the owner of the dry land on 
 the opposite shore. 
 
 The south line dividing the waters stops where it intersects the straight line 
 from Smith's Point to Watkins' Point, because this latter is the charter line, as 
 modified by the compact, and Maryland has no rights south of it. 
 
 From that point of intersection to Watkins' Point we follow the straight 
 line from Smith's Point, there being no possession or agreement which has 
 changed it since 1785. 
 
 At Watkins' Point the charter line has stood unchanged since 1632, and the 
 call for a due east line from thence must be followed until it meets the middle 
 thread of the Pocomoke. At the place last mentioned the boundary turns up 
 the Pocomoke, keeping the middle of the river until it crosses the Calvert and 
 Scarborough line. It divides the river that far because the territory on one side 
 belongs to Maryland and on ihe other to Virginia. 
 
 From the angle formed by the Scarborough and Calvert line with the line 
 last described through the middle of the Pocomoke, the boundary follows the 
 marked line of Scarborough and Calvert to the seashore. 
 
 It will be readily perceived that we have no faith in any straight-line theory 
 which conflicts with the contracts of the parties, or gives to one what the other 
 
House Doc. No. 6. 19 
 
 has peaceably and continuously occupied for a very long time. The broken 
 line which we have adopted is vindicated by certain principles so simple so 
 plain, and so just, that we are compelled to adopt them. They are briefly as 
 follows : ^ 
 
 1. So far as the original charter boundary has been uniformly observed and 
 the occupancy of both has conformed thereto, it must be recognized as the 
 boundary still. 
 
 2. Wherever one state has gone over the charter line taken territory which 
 originally belonged to the other and kept it, without let or hindrance, for more 
 than twenty years, the boundary must now be so run as to include such terri- 
 tory within the state that has it. 
 
 3. Where any compact or agreement has changed the charter line at a par- 
 ticular place, so as to make a new division of the territory, such agreement is 
 binding if it has been followed by a corresponding occupancy. 
 
 4. But no agreement to transfer territory or change boundaries can count for 
 anything now, if the actual possession was never changed. Continued occu 
 pancy of the granting state for centuries is conclusive proof that the agreement 
 was extinguished and the parties remitted to their original rights. 
 
 5. The waters are divided by the charter line where that line has been undis 
 turbed by the subsequent acts of the parties; but where acquisitions have been 
 made by one from the other of territory bounded by bays and rivers such 
 acquisitions extend constructively to the middle of the water. ' 
 
 Maryland is by this award confined everywhere within the original limits of 
 her charter. She is allowed to go to it nowhere except on the short line run 
 ning east from Watkins' Point to the Middle of the Pocomoke. At that place 
 Virginia never crossed the charter to make a claim. What territory we adjudge 
 to Virginia north of the charter line she has acquired either by compacts fairt 
 made or else by a long and undisturbed possession. Her right to this terri- 
 tory, so acquired, is as good as if the original charter had never cut it off to 
 Lord Baltimore. We have nowhere given to one of these states anythin<^ 
 which fairly or legally belongs to the other; but in dividing the land and the 
 waters we have anxiously observed the Eoman rule suum cuique trihuere. 
 
 J. S. BLACK, Pennsylvania. 
 A. W. Graham, Secretary. ^^^^' =^' J^NKIxXS, Georgia, 
 
20 House Doc. Xo. 6. 
 
 ^TV^A^RD. 
 
 And now, to wit, January 16, Anno Domini 1877, the undersigned, being a 
 majority of the arbitrators to whom the states of Virginia and Maryland, by 
 acts of their respective regislatures, submitted the controversies concerning 
 their territorial limits, with authority to ascertain and determine the true line 
 of boundary between them, havijig heard the allegations of the said states and 
 examined the proofs on both sides, do find, declare, award, ascertain, and de- 
 termine tiiat the true line of boundary between the said states, so far as they 
 are conterminous with one another, is as follows, to wit : 
 
 Beginning at the point on the Potomac river where the line between Vir- 
 ginia and West Virginia strikes the said river at low-water mark, and thence 
 following the meanderings of said river by the low-water mark to Smith's 
 Point at or near the mouth of the Potomac, in latitude 37° 53^ 08'^ and longi- 
 tude 76° 13^ 46'^ ; thence crossing the waters of the Chesapeake Bay, by a line 
 running north 65° 30^ east, about nine and a half nautical miles, to a point on 
 the western shore of Smith's Island, at the north end of Sassafras Hammock, 
 in latitude 37° 57^ 13'^, longitude 76° 02' 52'^ ; thgnce across Smith's Island 
 south 88° 30' east five thousand six hundred and twenty yards, to the center of 
 Horse Hammock, on the eastern shore of Smith's Island, in latitude 37° 57' 
 08", longitude 75° 59' 20"; thence south 79° 30' east four thousand eight hun- 
 dred and eighty yards, to a point marked ''A " on the accompanying map, in 
 the middle of Tangier Sound, in latitude 37° 56" 42", longitude 75° 56' 23", 
 said point bearing from Jane's Island light south 54° west, and distant from 
 that light three thousand five hundred and sixty yards; thence south 10° 30' 
 west four thousand seven hundred and forty yards, by a line dividing the 
 waters of Tangier Sound, to a point where it intersects the straight line from 
 Smith's Point to Watkins' Point, said point of intersection being in latitude 
 37° 54' 21", longitude 75° 56' 55", bearing from Jane's Island light south 29° 
 west, and from Horse Hammock south 34° 30' east. This point of intersection 
 is marked "2J" on the accompanying map. Thence north 85° 15' east six 
 thousand seven hundred and twenty yards along the line above mentioned, 
 which runs from Smith's Point to Watkins' Point until it reaches the latter 
 spot, namely, Watkins' Point, which is in latitude 37° 54' 38", longitude 75° 
 52' 44". From Watkins' Point the boundary line runs due east seven thou- 
 sand eight hundred and eighty yards, to a point where it meets a line running 
 through the middle of Pocomoke Sound, which is marked " C '•' on the accom- 
 
House Doc. Xo. 6. 21 
 
 panying map, and is in latitude 37° 5V 38'^, longitude 75° 47^ 50^^ ; thence, by 
 a line dividing the waters of Pocomoke Sound) north 47° 30' east five thousand 
 two hundred and twenty yards, to a point in said sound marked " J>" on the 
 accompanying map, in latitude 37° 56' 25'', longitude 75° 45' 26" ; thence fol- 
 lowing the middle of the Pocomoke river by a line of irregular curves, as laid 
 down on the accompanying map, until it intersects the westward protraction 
 of the boundary line marked by Scarborough and Calvert May 28, 1668, at a 
 point in the middle of the Pocomoke river and in latitude 37° 59' 37", longi- 
 tude 75° 37' 04" ; thence, by the Scarborough and Calvert line, which runs 
 5' 15' north of east, to the Atlantic ocean. v 
 
 The latitudes, longitudes, courses, and distances here given have been meas- 
 ured upon the Coast Chart No. 3'3 of the United States Survey, (sheet No. 3, 
 Chesapeake Bay,) which is herewith filed as a part of this award and explana- 
 tory thereof. The original charter-line is marked upon the said map and 
 shaded in blue. The present line of boundary, as ascertained and determined, 
 is also marked and shaded in red, while the yellow indicates the line referred 
 to in the compact of 1785 between Smith's Point and Watkins' Point. ■ * 
 
 In further explanation of this awai'd, the arbitrators deem it proper to add 
 that — 
 
 1. The measurements being taken and places fixed according to the Coast 
 Survey, we have come as near- to perfect mathematical accuracy as in the nature 
 of things is possible. But in case of any inaccuracy in the described course or 
 length of a line or in the latitude or longitude of a place, the natural objects 
 called for must govern. 
 
 2. The middle thread of Pocomoke river is equidistant as nearly as may be 
 between the two shores without considering arms, inlets, creeks, or affluents as 
 parts of the river, but measuring the shore lines frorn headland to headland. 
 
 3. The low-water mark on the Potomac, to which Virginia has a right in the 
 soil, is to, be measured by the same rule, that is to say, from low-water mark at 
 one headland to low-water mark at another, without following indentations, 
 bays, creeks, inlets, or affluent rivers. 
 
 4. Virginia is entitled not only to full dominion over the soil to low-water 
 mark on the south shore of the Potomac, but has a right to such use of the 
 river beyond the line of low-water mark as may be necessary to the full enjoy- 
 ment of her riparian ownership, without impeding the navigation or otherwise 
 interfering with the proper use of it by Maryland, agreeably to the compact of 
 1785. 
 
 In testimony whereof we have hereunto set our hands the day and year 
 above written. 
 
 J. S. BLACK, of Pennsylvania. 
 CHAS. J. JENKINS, of Georgia. 
 A. W. Graham, Secretary. 
 
22 House Doc. No. 6. 
 
 OPINION OF JAMES B. BECK, OF KENTUCKY. 
 
 I agree with my colleagues in the conclusion they have reached as to the 
 rights of Maryland on the Potomac river. But I regret to be compelled to 
 differ with them as to the location of the "Watkins' Point" of Lord Balti- 
 more's charter, and consequently as to the true line of division between the 
 states on the eastern shore of the Chesapeake Bay. I am satisfied, from all the 
 facts and cii-cumstances before u?, that the promontory at the extreme western 
 angle of the body of land, called by Calvert and Scarborough, Watkins' Point, 
 in 1668, from which or " agreeable " to which they ran their divisional line east 
 straight to the ocean, is the true Watkins' Point of the charter, and conse- 
 quently the line of Calvert and Scarborough is the true line from the bay to 
 the sea. 
 
 My colleagues have decided that the true "Watkins' Point " is at Cedar 
 Straits, which is a low, marshy cape or angle of the Chesapeake, on the north- 
 western side of Pocomoke Bay, from which the charter line of Lord Baltimore 
 ran 'east to the ocean, but that, owing to the action of the commissioners in 
 1668, the present .true line now runs thence east to the middle of Pocomoke 
 Bay ; thence, following the middle of the bay, to the mouth of Pocomoke 
 river; thence up the middle of the river till it reaches the line of Calvert and 
 Scarborough, four or five miles north of their Watkins' Point ; thence with 
 that line east to the ocean. Being unable to see how this crooked line can be 
 reconciled or made to agree, either with Lord Baltimore's charter or Calvert 
 and Scarborough's settlement of the boundary in 1668, I am compelled to 
 disagree with them, and propose to give my reasons for declining to sign the 
 award. 
 
 The length of time which has elapsed, and the loss of records which would 
 have explained many of the transactions, render it difficult to speak with 
 accuracy as to actions and events so remote. Much has to be inferred from 
 the necessary or probable connection of isolated facts : whilst the impossibility 
 of obtaining evidence outside of the documents laid before the commission by 
 the distinguished counsel for the states to test the truth of the deductions and 
 conclusions arrived at, makes an elaborate, and it may be somewhat tedious, 
 statement of the case necessary to a proper understanding of it. 
 
 I shall not attemj^t to give my views a judicial appearance, but rather set 
 forth the reasons and arguments which have impelled me to the conclusion I 
 have reached. 
 
House Doc. 'So. 6. 23 
 
 By reference to the acts of the legislatures of Maryland and Virginia appoint- 
 ing this commission, it will be seen that we are directed to determine the true 
 line of boundary between the states ; and as the line across the Eastern Shore 
 from the Chesapeake to the ocean is the opening line of Lord Baltimore's char- 
 ter under which Maryland claims, it must first be settled, as the closing hne 
 from the mouth of the Potomac to the initial point cannot be determmed un- 
 til the beginning point is ascertained. That done, the closing line bemg " the 
 shortest line" from the west side of the bay to the beginning, only reqmres 
 the drawing of a straight line to the initial point to answer the call of the 
 charter, in which the first or controlling line is thus described : " All that 
 part of the Peninsula or Chersonese lying in parts of America between the 
 ocean on the east and the Bay of Chesapeake on the west, divided from the 
 residue thereof by a right line drawn from the promoniori/ or headland called 
 Watkins' Point, situate upon the Bay aforesaid, near the river Wighco on the 
 west, unto the main ocean on the east. " The location of the right line called 
 for in the foregoing recital is the main point in dispute, especially the mathe- 
 matical point which shall be determined to be the Watkins' Point, from which 
 the surveyor should start the right line from the Chesapeake to the ocean. In 
 reference to "Watkins' Point," several things must be observed: First. It is 
 described in the opening line as a promontory or headland, and in the closing 
 line thus : " Thence by the shortest line unto the said promontory or place 
 called < Watkins' Point,'" In Webster's Unabridged Dictionary a "promon- 
 tory" is thus described: "From pro, before, and mons, mountain. [Geog.) A 
 high point of land or rock projecting into the sea beyond the line of the coast; 
 a headland. It differs from a cape in denoting high land. A cape may be a 
 similar projection of land, high or low. ' Like one who stands upon a promon- 
 tory,'" {Shak.) Second. It is situated on Chesapeake Bay. Third. It was near 
 (not upon or necessarily connected with) the river Wighco. Fourth. The line 
 to be run from Watkins' Point on Chesapeake Bay was to be a '' righV or 
 straight line "from that initial point to the ocean on the east." 
 
 When the charter for Maryland was granted by Charles I to Cecelius, Lord 
 Baltimore, in 1632, there was no map of the country in existence except that 
 made by Captain John Smith to accompany the history of his explorations and 
 adventures in America, and no means existed of determining the location and 
 character of the place called by him "Watkins' Point," except the description 
 given of it in his history. The name "Watkins' Point" is written on the land 
 in Smith's map in such a manner that no person can say, by looking at it with 
 the certainty that ought to be required in settling a question of boundary 
 between colonies or states, what spot is intended to be indicated as the mathe- 
 matical point from which a line of survey should be run. The history which 
 the map was drawn to illustrate makes it conclusive that the marshy angle at 
 Cedar Straits could not be the " Watkins' Point" named by Captain Smith, the 
 only description of which is given by him in volume 1, page 183, as follows: 
 
 " Watkins', Read's, and Momford's poynts are on each side Limbo, Ward, 
 Cantrell, and Sicklemore's, betwixt Patawomack and Pamaunkee, after the 
 names of the discoverers. In all these places and the furtherest we came up 
 the rivers we cut in trees so many crosses as we would, and in many places 
 
24 House Doc. Xo. 6. 
 
 made holes in trees, wherein we writ notes, and in some places crosses of 
 brasse, to signifie to any, Englishmen had been there." 
 
 It is agreed that Smith gave the name of "Limbo" to the straits known as 
 "Hooper's Straits," about twenty miles north of Cedar Straits; and the proof 
 is conclusive that the angle at Cedar Straits is, and always was, a low, marshy 
 point, on which no trees ever grow and which has none of the elements of a 
 promontory. The southernmost angle of it lies south of, and is hidden from 
 the view of navigators, on the Chesapeake Bay, by the northern pojjit of Fox 
 Island, which is, and always has been, a part of Accomac county, in Virginia. 
 Fox Island lies near to and west-southwest of the southern point of the main 
 shore at Cedar Straits, and was 'granted by Virginia in 1678, Watts' Island, 
 south of it, having been granted in 1673. They were both islands then; and 
 there being no evidence to show that they were not both islands in 1608 and 
 1632, the presumption is that they were. A straight line cannot now be drawn, 
 and I assume never could have been drawn, from the southern extremity of 
 the main shore at Cedar Straits, either to Cinquack or Smith's Point, on the 
 western side of the bay, without running across Fox Island. My colleagues 
 have been compelled to run through it, as the line on their map shows, in order 
 to reach their so-called Watkins' Point. It would be hard to explain how 
 Maryland became entitled to it. It is not contended that any land has been 
 made at this point since the charter was granted; and whatever washing away 
 has taken place only renders the fact less certain now than it was two centuries 
 ago. These facts will appear by an examination of any map of the United 
 States Coast Survey, and such examination will show that the southern point of 
 the mainland at Cedar Straits never was in any sense a promontory or headland 
 on the Chesapeake Bay. 
 
 The Maryland Commissioners in their stc^tement to this commission, pages 
 46 and 47, give such a description of the character of the coast on each side of 
 Cedar Straits as show that the point now determined to be Watkins' Point by 
 my colleagues was not believed by them to be the Watkins' Poirt of the charter. 
 
 If it was not so originally, no changes in the character of the coast since can 
 make it so now. John Smith named it long before any charter was thought of. 
 
 The commissioners say : 
 
 "The mouth of the Wichcocomoco or Pocomoke was then as it is now south 
 of what is known as Watts' Island, thence going north you pass Tangier Island, 
 thenoe ( including Fishbone and Ilerne Islands) extending as far north as Fox 
 Island is now. From the mouth of the Pocomoke to Point Ployer at that 
 time (lOOS) the coast was low broken isles of marsh, and from Cedar Straits to 
 Jane's Island such is noiv the character of the coast. Tliere may then have been, 
 (in 1608,) and for thirty years thereafter, an unbroken neck of land, as we have 
 supposed, flanked on the east and west by low broken islands of niArsh, which 
 have long since been waslied away, and some of them have been shbmerged 
 within the memory of living witnesses. * * * The isles they called 
 •Limbo were evidently those now know as Smith's Islamls and Holland Islands. 
 And the only point of high land upon the main from Russels' (Tangier) Isles 
 to Nanticoke river was that since known as Jane's Island, which must have 
 been the Point Ployer of Smith's History." 
 
 The point at Cedar Straits never was called " Watkins' Point " in any patent 
 or conveyance : it remained vacant land till 1702, when it was granted by Lord 
 
House Doc. :^o. 6. 25 
 
 Baltimore by the name of " Plane's Harbox' " to Isaac and Nathan Horse3\ 
 The grant contained 407 acres ; its bounds calls for " Cedar Straits, " but no- 
 where suggests that " Watkins' Point" is in the grant. In 1748 Isaac Horsey 
 conveyed it, and again gives its bounds with " Cedar Straits " among the calls ; 
 no mention being made of " Watkins' Point. " No line ever was run from 
 Cedar Straits east to the ocean. The majority of the board do not now propose 
 to run a line from their " Watkins' Point" east according to the calls of Loi'd 
 Baltimore's charter, which they admit calls for a straight line from the Chesa- 
 peake Bay to the Atlantic. They are obliged to meander along the Pocomoke 
 Bay and river more than four miles north of an east line from Cedar Straits to 
 the line established in 1668 by Calvert and Scarburg, and follow that line from 
 the Pocomoke River east to the ocean, and to admit, Jirst, that their line is not the 
 true charter line, and second, to claim thai the Calvert and Scarburg line of 1668 is not 
 the true charter line, though they adopt it in order to sustain their theory that the 
 point at Cedar Straits is the "Watkins' Point" of Lord Baltimore's charter. 
 I assert that no man could take Smith's History and map, with the description 
 of the country for fifteen miles north and south of Cedar Straits, as given in 
 tlie Maryland statement of this case, and locate the "Watkins' Point" of 
 Lord Baltimore's charter at Cedar Straits, even if no line had been run by Cal- 
 vert and Scarburg; and when in^ddition to this it is shown that, more than 
 two hundred years ago, commissioners appointed by the highest authority in 
 Maryland and Virginia did in fact run a divisional line between the colonies 
 straight from the Chesapeake Bay to the ocean on what" was then decided and 
 settled to be the charter line, which strikes the Chesapeake about four miles 
 north of Cedar Strait at a point which has all the requirements of the " Wat- 
 kins' Point" of Smith's History and map, it seems to me that the assumption 
 that Cedar Straits is the true " Watkins' Point " cannot be maintained, con- 
 ceding the possession by Maryland of the point of land south of the true 
 charter line, which is explained on grounds easily understood, without doing 
 violence to the well-settled facts in the case. In order to present my views 
 clearly I will be compelled to give a somewhat detailed statement of the causes 
 which led to the Calvert and Scarburg survey and agreement ; an explanation 
 of its true meaning, and the protraction of its line west over Smith's Island, 
 and east to the sea. 
 
 The true divisional line between Maryland and Virginia, f»om the Chesapeake 
 Bay to the ocean, became the subject of serious controversy between the colo- 
 nies at a verjr early period, yet no line was established and no settlement of the 
 controversy had until 1668. From 1632, when the charter for Maryland was 
 granted by Charles I to Cecilius, Lord Baltimore, up to the settlement of the 
 line by Phillip Calvert, the chancellor of Maryland, and Edmond Scarburg, 
 the surveyor-general of Virginia, 1C68, all sorts of extravagant claims were as- 
 serted on both sides — Lord Baltimore claiming down to Onancock, which is 
 many miles south of what he had assumed to be his charter line in the map 
 published by him in 1635, to accompany his " Relation of Maryland ;" and Vir- 
 ginia, by the act of her gi'and assembly of September 10, 1663, claiming up to 
 Nanticoke or Nanokin, many miles north of the "River Wighco," on Smith's 
 map. I rei:)eat that there was no map of that country in existence when Lord 
 
 4 
 
26 House Doc. Xo. 6. 
 
 Baltimore's charter was granted, except Captain John Smith's, and his history 
 furnished the only information which we have any right to assume either the king 
 or Lord Baltimore had when the grant was made; neither of them ever were 
 in America. The map accompanying Lord Baltimore's Eelation of Maryland 
 in 1635, was, of course, his advertisement of his claim, made up and published 
 in London, to induce people to emigrate there, and certainly included all he 
 thought he could possibly embrace within the limits of his charter. Until a 
 line was run from the ocean to Watkins' Point, or from "Watkins' Point to the 
 ocean, which is the same thing, it was perhaps natural that Lord Baltimore 
 should seek to extend his limits a^. far south as possible, as he obviously did on 
 his map, by changing the whole character and shape of the land at Watkins' 
 Point, as laid down on Smith's map, of which he professed his was a copy, ex- 
 tending the southern point far into the bay beyond what Smith had done, and 
 from that southern point, so made arbitrarily, he extended his " charter line," 
 by a dotted line straight east to the ocean. If he had been entirely impartial 
 between himself and the king, he would have made a true copy of that part of 
 Smith's map, at least, and if he claimed from the southern angle of the point, 
 instead of the westermost, would have dotted his southern line thence east to 
 the sea, as Smith's map located it, instead of creating an artificial point or tongue 
 of land, as he did, so as to claim across the whole eastern shore all the land for 
 many miles south of what a line projected from the southern point on Smith's 
 map would have given him. Tlie king, after closing the grant to him, had 
 taken the precaution to say, in the charter, that it was laid off " so that the 
 whole tract of land divided by the line aforesaid, between the main ocean and 
 Watkins' Point, unto tlie promontory called Cape Cliarles, may entirely remain 
 for ever excepted to us, our heirs and successors forever." It must therefore 
 have been obvious to Lord Baltimore, that he was attempting to take from the 
 king a large amount of property not granted to him, when he so drew his map 
 as to extend his southern boundary from the Chesaiaeake east to the ocean, from 
 a point far south of that laid down on Smith's map, from which he professed to 
 have copied his own. 
 
 Again, and I am only showing now that each side, prior to the running of the 
 divisional line in 1668, by Calvert and Scarburg, as an adjustment of all dis^jutes 
 from the Chesapeake Bay to the ocean, set up extravagant and unfounded 
 claims. Lord Baltimore obtained from Sir John Harvey, (whose history is too 
 well known to require further comment than that he was hated and despised 
 by the people, whom he as cordially disliked,) after the banishment and return 
 of that governor, a jiroclamation, dated October 4, 1638, forbidding all citizens 
 of Virginia from trading "with the Indians or savages inhabiting within the 
 said province of Maryland, viz : northward from the river Wiconowe, commonly 
 called by the name of Onancock, on the eastern side of the grand bay of Ches- 
 apeake," * * "without license first obtained for their so doing from the 
 Lord Baltimore, or his substitute,'' <fec. 
 
 Onancock, as Sir John Ilarvey, and certainly as Lord Baltimore knew, being 
 from ten to fifteen miles south of what Maryland now claims to be the " Wat- 
 kins' Point" of the charter, and from eight to ten miles south of the dotted 
 line which Lord Baltimore had drawn east to the ocean from the " Watkins' 
 
House Doc. Xo. 6. 27 
 
 Point," laid down by him on tlie map of 1635, accompanying his "Relation of 
 Maryland." Several streams of considerable magnitude, such as Chesconessex 
 and Hunter's creek, were between Onancock and the Wighco (or Pocomoke,) 
 on the Eastern Shore, so that there could be no doubt that Onancock was far 
 south of any possible charter line ; yet, with that knowledge. Lord Baltimore, 
 in a letter of instructions to his governor and council, dated October 23, 1656, 
 among other things, ordered, "That they take special care that no encroach- 
 ments be made by any, upon any part of his lordship's said provinces ; for the 
 better prevention whereof, his lordship requires his said lieutenant and council 
 to cause the bounds thereof to be kept in memory and notoriously Jcnoivn, especially the 
 bounds between Maryland and Virginia, on that part of the country known there by the 
 name of the Eastern Shore ^ * * * and his lordship hath also, for their direc- 
 tion therein, sent herewith a copy of a proclamation published heretofore by 
 the then governor and council of Virginia, for prohibiting any of Virginia to 
 trade with the Indians in Maryland without his lordship's license, which pro- 
 clamation bore date 4th October, 1638, and therein are described the hounds leiiveen 
 Maryland and Virginia:' This extreme claim of Lord Raltimore doubtless in- 
 duced the Maryland commissioners, in their statement in 1872, to say that, "It 
 may be fairly considered evidence that ' Watkins' Point' at that time extended 
 so far south as to be west or nearly west of Onancock river, so that an east line 
 from it to the ocean would pass along or near that river. * * * And the 
 tradition is so fully proved that the mainland originally extended in one un- 
 broken point to Watts' Island, the southern end of which at that time was 
 probably so nearly west of Onancock river as to confirm the implication that 
 ' Watkins' Point' was at the southern end of what has since become known as 
 Watts' Island." 
 
 So that neither Lord Baltimore in 1656, ner the Maryland Commissioners in 
 1872, claimed that the marshy point, which is the southern point of Somerset 
 county, on the bay, is the true " AVatkins' Point" of the charter to Lord Balti- 
 more. Surely Watkins' Point could not be at one place at one time and at a 
 different place at another. Whatever was originally the true charter point is 
 so now. Our duty is to find it. All the best informed parties assumed that it 
 was not at Cedar straits. 
 
 I agree with them, that it is not. As already stated, that point has none of the 
 elements of a promontory or headland, and was not regarded by Calvert and Scar- 
 burg as answering Captain John Smith's description of " Watkins' Point." 
 But before considering that, I propose to show that Virginia, prior to 1668, was 
 as extreme and more dictatorial than Lord Baltimore in the assertion of her 
 claim to a line of division between herself and Maryland many miles north of 
 the line, finally agreed on by Calvert and Scarburg. It is unnecessary to refer 
 to her conduct prior to 1663, as her action then illustrates fully what I mean. 
 On the 10th day of September, 1663, her grand assembly passed an act " Com- 
 manding in his majesties name all the inhabitants of the Eastern Shore of Va., 
 from 'Watkins' Point,' Southward, to render obedience to his majestie's Gov- 
 ernment of Va., and make payment of his majesties rents and all public dues 
 to his majesties colony of Va. And whereas, it has been controverted by some 
 ignorant or ill-disposed persons, where ' Watkins' Point,' the Lord Baltimore 
 
28 . House Doc. l^o. 6. 
 
 southernmost bounds on the Eastern Shore is situate. This Grand Assembly by 
 the care and special inquiry of five able selected Surveyors and two Burgesses, 
 and the due examination thereof, conclude the same place of Watkins' Point 
 to be the North side of Wicocommico river, on the Eastern Shore, and near 
 unto and on the South side of the Straight Lymbo, opposite the Patuxent river, 
 which place, according to Captain John Smith, and discoverers with him in the 
 year 1608, was so named, being, the Lord Baltimore's bounds on the Eastern 
 Shore, within which bounds his majesties siJbjects that are now seated, are 
 hereby commanded to yield due obedience at their perils." 
 
 Col. Edmund Scarburg and two others were appointed to confer with the 
 Maryland authorities, and in the meantime "all inhabitants on the .Eastern 
 Shore as aforesaid, are required in his majesties name to conform due obedience 
 to this act of assembly." 
 
 Acting or assuming to act under the orders so given by the grand assembly 
 of Virginia, Colonel Scarburg, in October, 1663, taking with him about forty 
 horsemen "for pomp and safety,^'' went to Annamesseks and Manoaken, and 
 proceeded in the moSt arbitrary manner to take possession of the country 
 up to Manoakin, and to require all the inhabitants to "subscribe obedience" 
 to his majesty according to the Virginia act of assembly ; setting the "broad 
 arrow,^' the mark of confiscation, on the doors of all who refused or asserted 
 any right in Lord Baltimore to any jurisdiction south of the place claimed by 
 Virginia in this act, to bfe Loi'd Baltimore's southei-n boundary. 
 
 In his report to the Governor and Council of Virginia of what he had done, 
 he gives his conversations with some of Lord Baltimore's officers and staunchest 
 adherents, and adds : "Some of them also discussed of the Lord Lieutenant of 
 Maryland's claim to Manoakin and all the other places to Onancock, to which 
 it was answered that whilst the erroneous Proclamation was uncontroled that 
 declares Onancock to be Maryland's Southern Bounds, it might be so received. 
 But since occasion made the Government of Virginia not only reverse that 
 proclamation, but also by the present act' of Assembly, the certain bounds of 
 the Lord Baltimore's patent was declared, &c., that if the Lord Lieut, had 
 aught to say he was referred by the act to persons and place; therefore they 
 need not trouble themselves therein, for the question appertained to higher 
 powers and above private men's controverting." In order to sustain the claim 
 of Virginia, the Court of Accomac County, seven Justices of the Peace present, 
 on the 10th day of November, 1663, after a long preamble setting forth the 
 disobedience of certain rebellious Quakers and other factious people about 
 Manoakin, who refused to conform to the act of Assembly of Virginia, ordered 
 certain officers to call together His Majesty's good subjects from Manoakin to 
 Pocomoke river; to arm themselves, and if necessary, protect the people, and 
 suppress any disturbances that these Quakers or others may seek to raise 
 because of said act. 
 
 On the 19th of July, 1664, Edmund Scarborough and seven other apparently 
 respectable gentlemen appeared before the court of Accomac, and made oath 
 that the Pocomoke river had been known by that name "time out of mind," 
 ''being a river on the eastern shore of the Chesapeake Bay in Virginia, lying 
 to the southward of a small spiral point on the south side of Anneraessecks, and 
 
House Doc. No. 6. 29 
 
 that point is to the southward of the place described in Captain John Smith's 
 map for Watkins' Point, so far as a man can seen in a clear day." It is evident 
 that the "small spiral point" referred to in that affidavit is the "Watkins' 
 Point" of the Calvert and Scarborough line, the "extreme western angle" of 
 the bodj^ of land on which they afterwards determined the initial point of the 
 opening line of the charter on the Chesapeake to be, the point Dr. Russell says 
 they called Point Ployer in all probability, but-io which, in my opinion, Smith 
 in his history and map gives the name of Watkins' Point, there being no "Point 
 Ployer" anywhere laid down by him; and it was from his history and map 
 that both Virginia and Maryland were asserting their rights. That spiral or 
 triangular point was about fifteen miles south of the first high land on the 
 main°shore north of it, which was the point at Nanticoke, nearly opposite Pa- 
 tuxent river, which Virginia was asserting with such pertinacity to be the Wat- 
 kins' Point of Lord Baltimore's charter and the northern limits of Accomac 
 county, being about as " far as a man can see in a clear day. " It was the only 
 point on the coast north of Onancock or south of Nanticoke, which gave Vir- 
 ginia any trouble in maintaining her extreme claim. Lord Baltimore's claim 
 to Onancock was too extreme to be dangerous ; but she had to fortify herself 
 asainst Maryland's withdrawal from Onancock and asserting her right east from 
 the point which the makers of the affidavit spoke of as " a small spiral point. " 
 Doubtless the affidavit was made to fortify Virginia in the negotiation then in 
 progress against Maryland, demanding that point as the true Watkins' Point 
 of her charter ; for it will be observed that it was made after Governor Cal- 
 vert's visit to Sir William Berkley and after Phillip Calvert was empowered to 
 treat with the governor and council of Virginia ; they had no apprehension 
 that the marshy angle at Cedar Strait would ever give them any trouble. 
 
 Enough has thus been shown to exhibit the extreme claims of each, and the 
 danger to be apprehended unless the question was settled in some amicable 
 man'ner. Lord Baltimore protested at once against the arbitrary conduct of 
 Scarborough, and demanded " Justice against the said Edmund Scarburgh for 
 entering into his province, in a hostile manner, in October last, and by blows 
 and imprisonment outraging the inhabitants of Manoakin and Annamessex. " 
 Governor Calvert, in the early part of the year 1664, visited Governor Berk- 
 ley in person, as shown by his proclamation dated June 3d, 1664, in which, 
 after speaking of the outrages committed by Scarborough on his people, he 
 says, "And whereupon remonstrance of this undue proceeding to the Hon. 
 Sir William Berkley, by myself in person, he did not only disclaim any order from 
 him to the said Scarburg alone, or before notice given and debate had, touch- 
 ing the point of difference, to proceed by force, as he did ; but was pleased, by 
 his order of the 28th of March last, to order the said Scarburg, with one or 
 both surveyors, &c., * * to give a meeting to such commissioners as should 
 by me be appointed, " &c. After stating the failure of these commissioners 
 to meet, the governor proceeds : " And to show how we are not to be tired 
 out of our desires of fair correspondence with Hon. Gov. & Council of Va., I 
 have constituted, ordained, appointed, and empowered Philip Calvert, Esq., 
 Deputy lieutenant and chancellor of this province, to repair to the Hon. Sir 
 Wm. Berkley, Gov. of Va., and the council there, and after delivering of a du- 
 
30 House Doc. Xo. 6. 
 
 plicate of these presents, and to treat and determine the said differences con- 
 cerning * Watkins' Point. ' * * * Whereof I desire that the said 
 Philip Calvert may be credited and believed, promising to ratify and confirm 
 whatsoever shall be done by him, according to this my commission, as if it 
 were done by myself. " 
 
 It thus appears that the Governor of Maryland had a personal interview be 
 fore March 28th, 1664, with the Governor of Virginia, relative to the settle- 
 ment of the true boundary line between the two provinces on the eastern 
 shore, between the Chesapeake Bay and the ocean, at which time it must be 
 assumed that the claims of Lord Baltimore and those of Virginia were fully 
 discussed. Smith's book and map ; Lord Baltimore's relation and map ; Sir 
 John Hervey's proclamation in 1638 ; Lord Baltimore's claim to Onancock iu 
 1656, based upon it as well as the act of the assembly of Virginia September 
 10th, 1663, and the facts upon which that action was based, were all before 
 them. The result was, as Governor Calvert stated in his proclamatiou of June 
 3d, 1664, that Sir William Berkley " was pleased further, by his order of the 
 28th of March last, to order the said Scarburg, with one or both the surveyors, 
 <fec., * * to give a meeting to such commissioners as should by me be ap- 
 pointed at Manoakin 10th of May last. " That commission having failed, 
 Philip Calvert was ordered by the governor to repair to Virginia in' person, 
 and there treat with the governor and council of Virginia, and determine the 
 "differences concerning Watkins' Point." We must assume that he went, 
 and had a full discussion of all the questions at issue with the governor and 
 council of Virginia. 
 
 In the absence of records, we cannot say how far he was successful, but the 
 inference is strong that before October, 1667, he had made an agreement with 
 them substantially similar to that formally signed by himself and Edmund Scar- 
 borough on the 25th of June, 1668. A careful reading of that agreement (leav- 
 ing out for the present the grant from Virginia for 1,000 acres on Smith's Island 
 in October, 1667,) seems to warrant the assumption that he had, and that Scar- 
 borough was sent by the governor and council to perfect it and run the bound- 
 ary line, as it recites, "by his majesty's commission," it was his right and duty, 
 by the advice and order of governor and council, to do. I will speak of that 
 hereafter. All the proceedings had, and all the acts done, prior to and includ- 
 ing the appointment of Philip Calvert in 1664, were based ujion the extreme 
 claims of the parties to the controversy. Neither had pretended to assert where 
 the true mathematical point, the Watkins^ Point of the charter, on which the sur- 
 veyor should plant his staff or compass and start the divisional line from the 
 Chesapeake Bay to the ocean on the east, was. Until that exact point was set- 
 tled and agi'eed upon, no line could be run. They had confined themselves to 
 general claims reaching to the neighborhood of certain i^laces. No line was 
 ever traced on any map of John Smith, the only one in existence when the char- 
 ter was granted. He had described Watkins' Point in his history only in the 
 manner I have stated. It will be observed also that Smith's map lays down the 
 Pocomoke Bay as running almost due west from the mouth of the river, with a 
 long, narrow tongue of land on the south side of it, extending almost to the 
 islands in the Chesapeake, dividing it from a large bay filled with islands on 
 
House Doe. No. 6. 31 
 
 the south side of, but disconnected with it. However erroneous that map may- 
 be, and we now know it is very incorrect in regard to both the river and bay, 
 their general direction being ahnost south, instead of west, as he lays them down, 
 still it was the only guide which either the king or Lord Baltimore had when 
 the charter was drawn, and it fixes the "Watkins' Point" of the charter very 
 near the point agreed on by Calvert and Scarburg, while it dissipates the claim 
 of Lord Baltimore to run down to Onancock, shews the incorrectness of his 
 map, published in 1635, with his relation, and disproves the claim of Virginia, 
 as asserted in her act of 1663, to the line she sought to maintain twenty miles 
 above, at Nanticoke or Manoakin. The map was of course before Philip Cal- 
 vert, and the governor and council of Virginia, while he was with them " to 
 treat and determine the said differences concerning Watkins' Point,'' and when it was 
 fairly looked at by men negotiating in a just and amicable spirit, it caused all 
 the extreme pretensions on both sides to be abandoned. That furnishes the 
 only rational interpretation of the language used in the preamble or first sec- 
 tion of the final agreement of Calvert and Scarburg in 1668 ; indeed of the whole 
 agreement as signed by them. It was written by and for men familiar with all 
 the antecedent negotiations, who knew just what point had been reached when 
 they met, and were consummating agreements intended to give permanent 
 peace and security to both colonies along the whole disputed line, from the 
 Chesapeake Bay to the ocean. That agreement is as follows: 
 
 <' Whereas his Royal Majesties Commission to the Surveyor Genl. of Virginia, 
 commands setting out the bounds of Virginia, with reference to his Majesty's 
 Hon'ble Governor and Council of Virginia, from time to time to give advice 
 and order, for directing the said Surveyor General to do his duty appertaining 
 to his office. In order thereunto his Majesty's Hon'ble Governor and Council 
 have by letter moved the Hon'ble the Lord Baltimore's Lieut. Genl. of Mary- 
 land to appoint some fitting person to meet upon the place called Watkins 
 Point with the Surveyor Genl. of Virginia, and thence to run the division Hne 
 to the Ocean Sea, &c. 
 
 "The Hon'ble Philip Calvert, Esq., Chancellor of Maryland, being fully nn- 
 powered by the Hon'ble Lieut. Genl. of Maryland, and.Edmond Scarborough, 
 his Majesty's Surveyor Genl. of Va., after a full and perfect view taken of the 
 point of land made by the north side of Pocomoke Bay and the south side of 
 Annamessex Bay, have and do conclude the same to be Watkins Pt., from which 
 said point, so called, we have run an east line, agreeable with the extremest 
 part of the westernmost angle of said Watkins Point over Pocomoke Eiver, to 
 the land near Robt. Holston's, and there have marked certain trees, which are 
 so continued by an east line, running over Swansecute's Creek, into the marsh 
 of the seaside, with apparent marks and boundaries, which by our mutual agree- 
 ment, according to the qualifications aforesaid, are to be received as the bounds 
 of Virginia and Maryland on the Eastern Shore of Chesapeake Bay. 
 
 " In confirmation of which concurrence we have set our hands and seals this 
 25th day of June, 1668. 
 
 (Signed) Philip Calvert. [Seal.] 
 
 Edmond Scarborough. [Seal.]" 
 
 Viewed in the light of antecedent negotiations, I think the meaning of the 
 foregoing agreement is that Philip Calvert and the governor and council of 
 Virginia, after a full and free conference extending over several years, during 
 which serious encroachments had been and still continued to be made by each 
 of the colonies upon the other, determined to abandon their extreme preten- 
 sions, Virginia no longer insisting upon carrying out the provisions of her act 
 
32 House Doc. Xo. 6. 
 
 of assembly by claiming to run the divisional line from Manokiii to the ocean, 
 and Lord Baltimore abandoning all his claims to the line east from Onancock ; 
 and as John Smith's map, from the names and descriptions on which the King 
 granted the charter to Lord Baltimore, has " "Watkins Point" laid down on the 
 l')oint of land formed by the north side of Pocomoke bay and the south side of 
 Annamessex bay, the governor and council of Virginia, hy letter, moved the 
 governor of Maryland to appoint some fitting person to meet upon the place 
 called " Watkins Point " on Smith's map, with the surveyor-general of Virginia, 
 whose duty it was, " by his commission from the King," to lay out the bounds 
 of Virginia under the direction, advice, and order of the governor and council, 
 " and thence to run the line of division to the ocean sea." Philip Calvert was, in ac- 
 cordance with the request contained in said " letter," sent by the governor of 
 Maryland to meet Scarburg, having been long before fully empowered to settle 
 the disputed question. They met on said land, took a full and perfect view of 
 all of it, agreed that neither Manokin nor Onancock was the place on which 
 the " Watkins Point " of the charter was situated, but that it was on the point 
 of land formed by the north side of the Pocomoke bay and the southern side 
 of Annamessex bay, and that the extremest part of the westernmost angle of 
 it was the true mathematical point from which a line should be run by survey 
 to the ocean on the east, and they ran it accordingly. It may be suggested that 
 the fact that they viewed the whole point and decided the jjoint of departure 
 afterwards, shows that they alone determined the whole question. The answer 
 is that the respective governments could only give general directions from a 
 distance. Much of detail had necessarily to be trusted to the judgment and 
 discretion of their agents, as was doubtless done. 
 
 Their line crossed the Pocomoke river to the land near Robert Holston's, and 
 thence to the marsh by the seaside. They marked the line east of the Poco- 
 moke for reasons made obvious by another agreement entered into between 
 them, or rather signed by them on the same day, for the protection of all 
 grantees from Virginia for lands north of the boundary established by them, 
 so that Lord Baltimore and persons holding lands granted by Virginia north of 
 the line should have no difficulty in causing re-surveys to be made and jDatents 
 from Lord Baltimore issued with that marked line as the southern boundary of 
 the grants. Without a line so marked it would have been impossible either for 
 Lord Baltimore or the claimants to have executed that agreement for the pro- 
 tection of Virginia patentees ; but as Virginia had made no grants west of the 
 Pocomoke nor on the seven miles east of the Swansecute marsh, no marks 
 were made. Maryland's grantees south of the line were not protected by the 
 agreement anywhere. A marked line was not immediately necessary on their 
 account, the line being a "right" or straight line from the Chesapeake bay to 
 the ocean, the portion marked because of the urgent necessity above stated 
 furnished not only conclusive evidence of where the line was all the way, but 
 made it easy for the plainest surveyor with the simplest instruments to protract 
 it east or west, wherever it was necessary or desirable to do so for any purpose. 
 The line thus run and partially marked is, the commissioners say, "to be re- 
 ceived as the bounds of Yiryinia and Maryland on the eastern shore of the Chesapeake 
 Bay. " Not from the Pocomoke River to theeea, leaving the line west of that 
 
• House Doc. Xo. 6. 33 
 
 river for fifteen miles either unsettled or to follow the meanders of the river 
 and bay to Cedar Strait, four miles south of the line they had run, but they did 
 what they were ordered to do, and what they say they did. They settled the 
 bounds of Virginia and Maryland by a straight line, as the charter required, 
 from the Chesapeake Bay to the ocean. It seems to me that no other con- 
 struction can be given to the agreement. They met to run the line between 
 the colonies according to the charter granted to Lord Baltimore and the whole 
 line between the Chesapeake Bay and the sea. They say in their agreement 
 that they met for that purpose, and that they did so run it, and that their acts 
 are to be so received as covering the whole line. Nowhere in all the corres- 
 pondence, records, or contemporaneous history is any compromise line sug- 
 gested. No map-maker, until very recently, ever drew any other than a 
 straight line -as the divisional line between the colonies on the eastern side of 
 the Chesapeake Bay, and all agreed that the Scarburg and Calvert line, as 
 marked from the Pocomoke to the marsh by the sea, was a part of that straight 
 line ; and however much the map-makers might be mistaken as to its true loca- 
 tion, its existence straight from the bay to the ocean was universally recognized 
 and laid down by them. We know where it is beyond question ; and if a thousand 
 map-makers had laid it down elsewhere, the true location on the land remains 
 and settles all questions concerning it. 
 
 I said there is no evidence anywhere, either that any compromise line was 
 run or that any other than the true line of Lord Baltimore's charter was ever 
 suggested. The agreement says they met to run that line, and that they ran 
 it. Philip Calvert's commission in 1664 was "to treat and determine the said 
 difference concerning Watkins' Point. 
 
 In the letter ordered by the council of Maryland in 1662-'63 to Sir William 
 Berkley they say : "And that on their part they would appoint a time when 
 we on our part shall attend on them to determine that place which shall be ac- 
 counted ' Watkins' Point, ' according to his lordship's patent for Maryland. " 
 Virginia never, so far as appears, asked for or sought to establish any other 
 line than the charter line as she understood it, when, by her act of assembly, 
 in 1663, she claimed that Accomac county extended to Manokin ; when the 
 court of that county ordered out the militia ; when seven of the citizens made 
 the affidavit referred to. All was based upon and set up to sustain and enforce 
 the charter line. It is safe to assert that there is no evidence even tending to 
 show that any other was ever attempted to be established, or that any other 
 than a " right" or straight line from the bay to the ocean was ever thought of. 
 There are intimations all through the proceedings that Scarburg, perhaps for 
 personal reasons, overreached Philip Calvert, and had the line run north of 
 the true line of the charter. There is absolutely nothing to sustain any such 
 charges or suggestions against Scarburg. It is true he attempted to enforce the 
 act of the Virginia Assembly of 1663 in a very arbitrary way, but it was a very 
 arbitrary act which he was ordered to enforce. Sir William Berkley disap- 
 proved his conduct; but in March, 1664, after Governor Calvert had visited 
 Virginia, Scarburg was again appointed at the head of the commission to settle 
 the boundary after the accusation and demands for justice against him made 
 in Governor Calvert's proclamation of June, 1664. When Philip Calvert was 
 
 5 
 
34 House Doc. Xo. 6. 
 
 appointed to treat with the governor and council of Virginia and settle the dis- 
 puted boundary, Scarburg was again in 1668 appointed the agent of Virginia 
 to close the controversy. He was certainly a man of sufficiently high charac- 
 ter to be trusted by Virginia and the king with most important commissions ; 
 and I know of nothing relative to the question before us which warrants us to 
 regard anj'^ act of his with suspicion or to impute to him any improper motives. 
 It is urged that he had obtained large grants of land from Virginia north of 
 the true charter line, and that he was therefore greatly intei'ested in pushing 
 the line east of the Pocomoke as far north as possible. I have failed to com- 
 prehend the force of the suggestion, with Governor Calvert's agreement of 
 June 11, 1668, and Philip Calvert's covenant of June 25, 1668^ protecting in 
 every way all surveys, grants, and entries made bj' or under Virginia north of 
 the line. It might as well have been located at Onancock, so far as his landed 
 interests were concerned, as where it was. It is too late now to impugn the 
 motives of Scarborough. He must stand on the same footing as Philip Calvert, 
 unless some wrongful act is shown, and none is even pretended. If fraud is 
 charged, and a charter line established over two hundred years ago is to be set 
 aside because of it, some fact should be shown. Finding fault with Scarburg 
 now will hardly be satisfactory. I can see, however, why he delayed signing 
 the final agreement as to the boundary line until Lord Baltimore had ordered 
 and Governor Calvert had executed the covenant for the protection of the 
 grantees of Virginia north of the line. 
 
 It is apparent from the proof that, from 1663 to 166S, both sides were active 
 in strengthening their respective claims. Lord Baltimore was urging his offi- 
 cers to encourage settlei's on the debatable ground. In 1666 he organized 
 Sotnerset county, and laid oitt its bounds thus: "All that tract of land within 
 our province of Maryland bounded on the south with a line from Walkuis'' 
 Point, being the north point of tlie baj' into which the river Wighco (formerly 
 Wighcocomico and afterwards Pocomoke and now Wighcocomico again) doth 
 fall exclusively to the ocean on the east," taking, of course, all the territory 
 east of the Pocomoke for over four miles south of the Scarborough and Calvert 
 line, and in every other waj'^ sought to sustain his claim south to that point. 
 He had, in 1666, I assume, abandoned his claim to Onancock. He repudiated 
 the theory advanced in the Maryland statement, that the Watkins' Point of 
 his charter was at Watts' Island, or at any point south of the southern angle 
 of the county he laid out., Virginia, on the other hand, was vigorously pushing 
 her claims northward on the eastern side of the Pocomoke River, where the 
 lands were far more valuable and of course more eagerly sought after. She had 
 not crossed into the marshes west of the Pocomoke, but before 1667 had granted 
 north of the Calvert and Scarborough line about 33,000 acres, or over fifty 
 square miles of territory. If she made any grants north of the line of 1668 
 after July, 1667, I have failed to observe them. She was, under her act of 
 Assembly of 1663, insisting on her right to assert her jurisdiction over all the 
 country from the Chesapeake Bay to the ocean, south of a line nearly opposite 
 the Patuxent River, some fifteen or twenty miles north of the line of Calvert 
 and Scarborough. Collisions between citizens, officials, and the resi-)ective 
 governments were imminent until the Calvert and Scarborough settlement and 
 
House Doc. No. 6. 35 
 
 line adjusted everything according to the legal rights of the parties. McMahon, 
 in his history of Maryland, vol. 1, pages 20. and 21, sets forth these transactions 
 with great clearness. He says: 
 
 " These acts of unprovoked hostility on the part of Scarborough were at once 
 disclaimed by Sir AVilliam Berkley as wholly unauthorized, and as the best 
 mode of obviating all fu.ture difficulties, the governor of Maryland set on foot 
 a negotiation with Berkley for the purpose of effecting a final settlement of the 
 boundary line between the respective possessions of the two governments on 
 the eastern side of the bay. The entreaties and remonstrances of the former 
 were at last crowned with success, and commissioners were at last appointed,. 
 viz: Philip Calvert on the part of Maryland, and on the part of Virginia its 
 surveyor-general, Edmond Scarborough, who were empowered to determine the 
 location of Watkins'' Point, and to mark the boundary line betiveen the two colonies running 
 thence to the ocean. By them this duty ,was fully discharged on the 25th June, 
 1668, and in consummation of it certain articles of agreement were drawn up 
 and signed by each of them on behalf of their respective governments, in one 
 of which they desi»nated the point of land made by the north side of Poco- 
 moke Bay and the south side of Annamessex Bay as Watkins' Point, and the 
 divisional line between the two colonies to be 'an east line running with the 
 extremest part of the westernmost angle of said Watkins' Point over Poco- 
 moke River, and thence over Svvansecute Creek into the marsh by the seaside, 
 with apparent marks and boundaries. ' _ 
 
 " Thus ceased all the existing sources of controversy with the government 
 of Virginia about the validity or true location of the charter of Maryland, " 
 
 McMahon evidently had not a shadow of doubt that the Calvert and Scar- 
 borough line ran straight from the Chesapeake Bay to the sea precisely where 
 I contend it does. 
 
 In a recent work by Edward D. Noell, entitled " Terra Marie, or Tlireads of 
 Maryland Colonial History," on page 151, the writer, after speaking of Scar- 
 borough's raid, says, *' These acts were disclaimed by Sir William Berkley. 
 And P-hilip Calvert on the part of Maryland, and Scarborough as surveyor- 
 general of Virginia, on the 25th day of July, 1668, agreed upon a boundary, an 
 east line from the extreme part of the most western angle of Watkins' Point, 
 over Pocomoke River, thence over Swansecute Creek into the marsh on the 
 eastern shore. " 
 
 In a note on the same page he says : " Scarborough, from the year 1630, had 
 been prominent as a representative of Accomac county, Virginia. His daugh- 
 ter married Custis, formerly an inn-keeper in Rotterdam, and the ancestor of 
 the first husband of Mrs. George Washington. " 
 
 Other historians might be quoted, but it would be only a repetition of the 
 ideas if not the language of McMahon. I doubt whether any expression can 
 be found in any history, or any suggestion from any of the public- men of 
 Maryland or Virginia, or any line xirawn on any map, until quite recently, 
 which intimates either that the line of division between Virginia and Mary- 
 land from the Chesapeake Bay to the ocean was not a straight line all the way, 
 or that Calvert and Scarborough only made a partial settlement of the dis- 
 puted boundary in 1668. Lord Baltimore evidently was advised promptly of 
 what had been done, and approved the settlement made by Calvert and Scar- 
 borough. Mr. Lee, in his letter to the Governor of Maryland in 1860, say?, 
 (see page 12) *' Instructions to his son Charles, dated London, 21st March, 
 1670, Lord Baltimore directs that he 'should forthwith make good all articles 
 
36 House Doc. Xo. 6. 
 
 made by our dear brother Philip Calvert on his lordship's behalf, a,nd Colonel 
 Edmund Scarborough, upon laying out the bounds between his lordship's said 
 province and the province of Virginia, in relation to any grant of land. ' " 
 
 The Virginia grants north of the line were made good to all who applied 
 within thp seven years as prescribed in the agreement, each grant from Lord 
 Baltimore containing the following recital : " That whereas, by certain articles 
 of agreement, bearing date the 25th day of June, 166S, between our dear 
 brother Philip Calvert, Esq., chancellor of our said province of Maryland, of 
 tiie one part, and Colonel Edmond Scarburg, late surveyor-general of Virginia, 
 of the other part, at and upon the laying out the bounds and running the 
 divisional lines between Maryland and Virginia, from Wathins' Point, on the 
 eastern shore of the Chesapeake Bay, to the seaside, " it was covenanted, &c. There- 
 fore the lands were granted. 
 
 These recitals, if there was nothing else, appear to mo OBonclusive proof of 
 the fact that the divisional line was run by Calvert and Scarburg from the 
 eastern shore of the Chesapeake by a straight line to the ocean. The proba- 
 bility is that Philip Calvert, the chancellor of Maryland, either drew or di- 
 rected the preparation of the grants containing these recitals. All the facts 
 show that they were prepared carefully by some well-informed person. I can- 
 not understand, in the face of the recitals above set forth, in contradiction of 
 the avowed object of the contracting parties and of their own statements as to 
 •what they did, how it can be successfully maintained that Calvert and Scarburg 
 only settled the bounds between the two colonies from the Pocomoke River, 
 fifteen miles east of Chesapeake Bay, to the Swansecute Marshes, seven miles 
 from the ocean. 
 
 Some stress is laid by the majority of the board upon one or two facts that I 
 may as well notice here. One is that Scarburg and others had, in July, 1664, 
 made affidavit that the AVatkins' Point on Smith's map was as far north of the 
 "small spiral point, " afterwards determined by Calvert and Scarburg to be the 
 *' Watkins' Point " of Lord Baltimore's charter " as a man could see on a clear 
 dav. " That affidavit is pronounced false. If these gentlemen had the same 
 •copy of Smith's map before them which we have, I would say it was not true ; 
 but I do not know what map they had showed. It was agreed on the 
 hearing that the plate from which the map we have was taken was found more 
 than a century afterwards among some rubbish in a town in Pennsylvania. I 
 do not know whether the affidavit-makers were deceived by a false map or not. 
 For ought I know, they may have had a copy of Smith's map, which varied 
 from the truth as much as the copy accompanying the relation of Maryland 
 did. The grand assemblj^'of Virginia, in September, 1663, after saying "some 
 ignorant or ill-disposed persons '" had controverted where Watkins' Point was, 
 said " this grand assembly, by the care and special inquiry of five able-selected 
 surveyors and two burgesses and the due examination thereof, " conclude that 
 " Watkins' Point, " according to John Smith and discoverers with him in 160S, 
 was opposite the Patuxent river, at least fifteen miles north of the point where 
 it was fixed in 1668. So that the same charge might with equal propriety 
 be made against that body of men, and Lord Baltimore's claim to Onancock 
 might be criticised with equal severity. I am unable to appreciate how any of 
 these things weaken the force of the facts I have shown. 
 
House Doc. Xo. 6. 37 
 
 Another point is that Culvert and Scarburg say in their agreement that they, 
 " after a full and perfect view taken of the point of land made by the north 
 side of Pocomoke Bay and the south side of Annamessex Bay, have and do 
 conclude the same to be Watkins' Point, from which said point, so called, we 
 have run an east line, " &c. It is contended that the language of the agree- 
 ment would be complied with if the line was run from the eastern line of the 
 body of land thus designated to the ocean. This is an exceedingly strained 
 construction, and I think a very wrong one. It is evident that a line so run 
 would not have been a division line between the colonies from the Chesapeake 
 to the sea, which was the object they professed to have in view, and which they 
 said they had accomplished. 
 
 No man with a map before him, and certainly no man standing on the 
 ground as Calvert and Scarburg say they did, and took a " full and perfect 
 view " of the whole body of land,, could assume that the body of land " made 
 hy the north side of Pocomoke Bay and the south side of Annamessex Bay, " on which 
 they determined that the true mathematical point to start their line of survey 
 was, giving it the broadest construction possible, reached as far east as the pomt 
 on the Pocomoke Eiver where the marked trees on the line are admitted to be 
 by them from three to four miles. 
 
 The counsel for Maryland, it is true, drew a line from Kingston, on the An- 
 namessex, to Rehoboth, on a bend of the Pocomoke Paver, eight or ten miles 
 from what anybody pretends is Pocomoke Bay, and claimed that to be the line 
 Calvert and Scarburg intended and meant to comprehend in " Watkins' Point" 
 by the language used in their agreement. That claim was more extreme than 
 the claims of Virginia and Maryland to Manokin and Onancock. It would be 
 as logical to say that the Chesapeake Bay extends to Harper's Ferry on the Po- 
 tomac, or to Harrisburg on the Susquehanna, as to assert that Pocomoke Bay 
 extends or ever extended to Rehoboth, or that Calvert and Scarburg ever in- 
 tended by the language they used to say that it did. A river may, when called 
 for, be construed to include the bay into which it flows, for some distance at 
 least, but a bay cannot possibly include the river, whose stream forms or helps 
 to form it either to its source or along its well-defined banks miles distant from 
 its mouth. 
 
 They say that they met on Watkins' Point from which "poini! '' they ran the 
 line over Pocomoke River to the seaside, which was to be received as the bounds 
 of Virginia and Maryland on the eastern shore of the Chesapeake Bay. I can- 
 not see how it can be asserted now that they did not run from Watkins' Point; 
 did not go within fifteen miles of the Chesapeake ; did not run across Pocomoke 
 River ; did not do any of the things they say they did. Yet if their line is 
 recognized only from Pocomoke River east, every statement made by them is 
 disregarded, and a line is established which palpably violates the charter and 
 contradicts every fact which Calvert and Scarburg assert to be true. How 
 could they start from " Watkins' Point " and run across the Pocomoke River 
 if they began their line east of this river? How can the line be a right line 
 from Watkins' Point to the ocean if it begins at Cedar Straits, four miles south 
 of the Calvert and Scarborough line, and meanders through Pocomoke Bay 
 and up the river four miles north of its starting place to the line of 1668, and 
 
38 House Doc. Xo. 6. 
 
 then follows it east to the sea. " We are directed to ascertain and determine 
 the true line between the states, not to make lines arbitrarily."' The crooked 
 lines meandering from Cedar Straits up the Pocomoke Bay and river to the 
 Calvert and Scarborough line cannot possibly be the charter line, which all must 
 admit was a straight line from the Chesapeake Bay to the ocean. It will not 
 do to assert, without proof and without suggestion of the truth of the assump- 
 tion, that Calvert and Scarborough, over two hundred years ago, ran a false 
 line and cheated Lord Baltimore out of a strip of country from the Pocomoke 
 River to the ocean, four miles wide and twenty-six miles long, when it was run 
 and settled by his chancellor and confirmed by himself, with full knowledge of 
 all the facts, and the line so established asserted by him to be his charter line 
 in every possible form. I have shown the recitals in the grants made by him 
 immediately afterwards ; there were hundreds of them, conveying 33,000 acres, 
 all asserting that the Scai'borough and Calvert line was his true divisional char- 
 ter line from the Chesapeake Bay to the ocean. 
 
 When it is admitted that the Calvert and Scarborough line of 1668 is the true 
 line of division, as it must be after two hundred years, and when the charter 
 line is conceded to be a straight line from bay to ocean, which cannot be denied, 
 when the exact line of their survey is fixed by thirty-three marked .trees and 
 other permanent objects, as Mickler found was ti'ue in 1858, the western end 
 on the bay and the eastern end on the ocean are fixed by simply protracting 
 the line according to the marked objects. No mathematical problem can be 
 simpler or plainer. When it is asserted that two and two make four, the argu- 
 ment is exhausted. This proposition is of that character. We know that Vir- 
 ginia and Maryland each holds east of the Pocomoke by the boundary line laid 
 out and marked by the commissioners, asserting if to be the line of the char- 
 ter, which is fully confirmed bj^ grants to that divisional line on both sides. 
 Surely it must be evident that the property south of that straight line west of 
 the Pocomoke River must be given to Maryland, if at all, not by her charter 
 line as settled in 1668, but because of her continued, undisturbed possession of 
 it. The settlement of the boundaries of the provinces from the Chesapeake to 
 the sea was reported by Lord Baltimoi-e to the king and the colonial office in 
 London, and was accepted by them as a straight line throughout. We have a 
 letter written by order of the king to Lord Baltimore, August 10, 1682, in 
 which he tells him the true way to prevent any complication between himself 
 and William Penn as to the divisional line between Maryland and Pennsyl- 
 vania is "by an admeasurement of the two degrees north from ' Watkins' 
 Point, ' the express south bounds of your patent, and already settled by com- 
 missioners between Maryland and Virginia. " That was strictly true ; it had 
 been settled by Calvert and Scarborough on the line laid down four miles north 
 of Cedar Strait, from which point Lord Baltimore would certainly have mea- 
 sured if he had agreed to the measurement. 
 
 The king, in the same letter, directs him to " determine the northern bounds 
 of your province as the same borders on Pennsylvania by an admeasurement 
 of tlie two degrees granted in your patent, according to the usual computation 
 of sixty English miles to a degree, beginning from the south bounds of Mary- 
 land, according as the same arc already settled by commissioners, as is above 
 
► 
 
 House Doc. Ts'o. 6. 39 
 
 mentioned. " In this clause the king did not tell him from what point of_ his 
 southern line to begin his measurement. As the line was an east and a straight 
 cue tm the Chesapeake to the sea, it made no difference to Lord Baltunore 
 or William Penn from what point of it he started. The measurement of two 
 decrees of latitude necessarily assumed that the lines north and south were 
 strlic^ht. It is impossible to suppose that either the king or Ins council or the 
 coWl ministry suspected that Lord Baltimore could run his Ime four miles 
 further north into Pennsylvania, if he started from the east side of the Poco- 
 xnoke Eiver, on the line run by the commissioners, whose ^^^lon they assumed 
 ^as final, than he would if he started from the point now called by Mary- 
 land " Watkins' Point, " in the Chesapeake Bay ; yet that would be the fact if 
 the theory of the crooked line be true. The king's letter accepted and con- 
 firmed the Calvert and Scarborough line. Virginia being a royal province the 
 kin<^ and Lord Baltimore alone had to agree to it. It must be obvious tha 
 neither the king nor his council suspected when that letter was written that 
 William Penn would lose a strip of territory four miles wide from the meridian 
 of the first fountain of the river Potomac on the west to the ocean on the east 
 if Lord Baltimore started east of the Pocomoke River to run his two degrees 
 north, more than would be taken if he began on the Chesapeake Bay. Isor 
 was it suspected that he could, after getting that advantage over Penn leave 
 the line on the east side of the Pocomoke and reach down into the kings 
 province west of that river for four or five miles, when his charteV called for a 
 strai.^ht line all the way, and the commissioners had said that they had so run 
 it Lord Baltimore in the same year wrote to Penn as follows : " My southern 
 bounds being Watkins' Point, was so determined by commissioners from his 
 majesty and others from mv father. Now, had they set Watkins^ Point higher 
 up the bay, my father must have been contented therewith, and the northern 
 bounds being the 40th degree of northern latitude, beyond which I am not to 
 run •' These letters show, first, a final settlement agreed to by both parties, 
 and, second, that the line of settlement was a straight one from the bay to 
 the ocean, from any part of which the two degrees north might have been 
 
 measured. , 
 
 The majority of the board rely on the f^ict that the map of Herrman, pub- 
 lished in 1673, which was followed substantially, indeed copied from by a major- 
 ity of the subsequent map-makers, including Fry and Jefferson and Thomas 
 Jefferson, as shown upon their face, draws the divisional line straight from the 
 ocean along the Calvert and Scarborough line to a fictitious point correspond- 
 in.^ somewhat with what is called Cedar Straits. Herrman had followed Lord 
 Britimore's map of 1635 as to the location of his line, which is the only way to 
 account for his blunder on the ground of honest mistake. I repeat that the 
 only fact which the old maps establish is that Calvert and Scarborough did run 
 a divisional line from the' bay to the ocean, and that it was a straight line all the 
 way. They make the line of 1668 a part of the line of their maps. Herrman 
 says on his • " These limits between Virginia and Maryland are thus bounded 
 by both sides deputies, the 27th May, A. D. 1668, marked by double trees from 
 the Pocomoke east to the seaside to the creek called Swansecute Creek. " Fry 
 and Jefferson's and Thomas Jefferson's maps each note the fact that the line 
 
4^ House Doc. Xo. 6. 
 
 they trace was run in 1668. There is no reason for believing that any of them 
 ever were on the ground or professed to know with any accuracy where the 
 line of 1668 was, and they all laid it down wrong. We know exactly where it 
 IS. Michler in 1858, under the supervision of the commissioners of both states 
 ran it from the Swansecute Marsh to the bay. He found thirty -odd of the old 
 line trees and other monuments of Calvert and Scarborough along the line east 
 ot the Pocomoke River. He protracted it west of that river for fifteen miles 
 and struck the Chesapeake Bay at the extreme western angle of the bodv of 
 land formed by the north side of the Pocomoke Bay and the south side of \n- 
 namessex Bay, nearer the former than the latter, at the exact spot from which 
 or agreeable to which Calvert and Scarborough say they ran their divisional 
 line in 16G8. De la Camp protracted it afterwards for other commissioners of 
 both states seven miles east to the ocean, and Junken ran it west over the 
 present Smith's Island on the bay. If the map-makers had had the surveys 
 of that line before them which we now have, they would have drawn the 
 divisional Ime to the true Watkins' Point at the westernmost angle. It would 
 have been impossible for them to have done otherwise and retain the line of 
 Calvert and Scarborough, which was the acknowledged basis of the line they 
 drew. That proposition needs only to be stated. The conclusion follows that 
 the map-makers were all wrong, and all that their maps prove is that they are 
 wrong, as no one will contend that the line of 1668 ever was where they lay it 
 down. They make it cross Pocomoke B.iy at least four miles south of the 
 mouth of the river, in order to run it straight to a false point made on paper 
 to fit the line, instead of crossing the river, as we know it does, four miles 
 north of its mouth, near Robert Ilolston's, running west to the promontory at 
 the point four miles north of Cedar Straits. If any or all of these old maps 
 had been placed in the hands of Lieutenant Michler or any other competent 
 engineer, and he had been told to run the boundary line according to the in- 
 formation they gave him, his first step would have been to find the Calvert and 
 Scarborough line. As soon as he located three marked trees on it, his duty was 
 plain and his task easy, and the old maps and all false points would have been 
 discarded and the line protracted by the ascertained straight line on the 
 ground. 
 
 Herrman's map was approved and indorsed by Lord Baltimore, as. his answer 
 to the question of the commissioners in London, March 26, 1678, shows. He 
 says : " I answer that the boundaries, latitude, and longitude of this province 
 are well described and set forth in a late map or chart of this province lately 
 made and prepared by one Augustine Herrman, an inhabitant of the said pro- 
 vince, and printed and publicly sold in London by his majesty's license, to 
 which I hereby refer for greater certainty. " This was a clear recognition of 
 the line of 1668, prominently laid down on the map, and of its being a straight 
 line all the way, as his charter required. This map had the double efTect'of 
 making all subsequent map-makers follow him in his fals^ Watkins' Point, and 
 of making Virginia and all persons seeking to locate lands in that colony be- 
 lieve that by the line of Calvert aud Scarborough she had no land to grant west 
 of the Pocomoke River, which rationally accounts for her failure to take pos- 
 session of any land south of the line of Calvert and Scarborough west of the 
 
House Doc. 'No. 6. 41 
 
 Pocomoke. Heri'man wrote the words Watkins' Point in large letters all over 
 the body of land, as a look at his map will show. It does not appear that any 
 plat of the line or map of the country was ever filed anywhere by Calvert and 
 Scarborough, so that the colonies or people might know what each was en- 
 titled to. 
 
 That Virginia never consented to a crooked line or gave up knowingly any 
 portion of the land she was entitled to by virtue of the division made in 1668 
 is shown conclusively by the fact that in 1682 she still complained of encroach- 
 ments on her true boundaries in her report to the king and council, in which 
 she said : " Neither are our northern boundaries less encroached on by the 
 Lord Baltimore by an unfair line from the jDretended point of land called ' Wai- 
 kins^ Point, '" east to the sea, by which (as supposed) " there is at least fifteen 
 miles lost to Virginia. " She evidently assumed that the line she complained 
 of had been run straight east from the Watkins' Point on the Chesapeake to 
 the ocean, and she never suspected, what is now for the first time suggested, 
 that Scarboi'ough had cheated Philip Calvert, so as to get the line east of the 
 Pocomoke, four miles north of the charter line. She charged, fourteen years 
 afterwards, that the line was unfair to her. Surely she granted Maryland 
 nothing which the line of 1668 gave to her. Maryland's possession south of 
 the line west of the Pocomoke was obviously the result of Virginia's ignorance 
 of her rights — the false impression produced by erroneous maps, which showed 
 that there was no land south of the line west of Pocomoke. The almost utter 
 want of value of that land, its want of convenient connection to the balance 
 of Accomac, (three-fourths of what there was of it being swamp,) prevented 
 any Virginia citizen from asking a patent for it. Very few patents were 
 granted by Maryland south of the line for from five to eight years after 1668. 
 It was gradually but slowly taken up by fishermen and others after the better 
 land was patented. The now known value of the oyster fisheries was not then 
 even suspected. If it had been, more attention would have been paid to the 
 line. 
 
 Stress is laid on the 21st section of the Virginia constitution of 1776, in 
 which she surrendered to Maryland, Pennsylvania, and North Carolina the ter- 
 ritories contained in their charter^, which, by the way, Maryland did not ac- 
 cept, if acceptance was necessary. It seems to me to confirm my view. Vir- 
 ginia had never, so far as appears, repealed her act of September 10, 1663, 
 claiming the line of the county of Accomac as running east from near Nanti- 
 coke, some fifteen miles north of the Calvert and Scarborough line. She now 
 consented that the charter lines as fixed in 1668 should be considered as per- 
 manently established. But it. never entered into the brain of any man in Vir- 
 ginia or Maryland that the constitution meant to annul the line of 1668 and 
 let Maryland run a new line from Cedar Straits, either east to tlie. ocean or by 
 a crooked line which is now sought to be declared the true line to which Vir- 
 ginia in 1776 surrendered her claim. In the Maryland convention which met 
 to frame the constitution the following resolution was adopted October 30, 1776 : 
 
 " Resolved unanimously/, That it is the opinion of this convention that the sole 
 and exclusive jurisdiction over the territory, bays, rivers, and waters included 
 in the said charter belongs to this state, and that the river Potomac, and almost 
 
 6 
 
42 House Doc. Xo. 6. 
 
 the whole of the river Pocomoke, being comprehended in the said charter, the sole 
 and exclusive jurisdiction over the said river Potomac, and also over such part 
 of the river Pocomoke as is comprehended in the said charier, belongs to this state, and 
 that the river Potomac and (hat part of the Chesapeake Bay ivhich lies between the capes 
 and the south boundary of this state, and so much thereof as is necessary to the navigation 
 of the rivers Potomac and Pocomoke, ought to be considered as a common highway free for 
 the people of both states, without being subject to any duty, burthen, or charge, as hath 
 been heretofore accustomed. " 
 
 If the charter line ran east from Cedar Straits, no part of the Pocomoke 
 River could possibly be in Virginia. Not only "almost" the whole, but the 
 entire river and a large portion of the bay would have been in Maryland, and 
 the same clear assertion of claim would have been made to it that was set up 
 in regard to the Potomac. The language used is precisely such as would be 
 adopted to maintain the line of Calvert and Scarborough, which crosses the 
 Pocomoke some four miles from its mouth, leaving "almost the whole of the 
 river Pocomoke" in Maryland, comprehended in Lord Baltimore's charter. 
 
 They had practically located their southern boundary on the line of 1668 east 
 of the river from, that date, and Worcester county, which was laid off in 1742, 
 never sought to claim any jurisdiction south of that line. The action of the 
 convention dissipates all idea of any grant from Virginia or any claim of Miuy- 
 land by adverse possession of any land south of the charter line. 
 
 The compact of 1785, the language of which 7 a^rree, was carefully considered, 
 and is entitled to great weight in our determination on this subject, is full of 
 statements, suggestions, and covenants fortifying the view I take. Section one 
 agrees " that the waters of the Chesapeake Bay and the river Pocomoke within 
 the limits of Virginia be forever considered as a common highway, " &c. 
 
 Section 8 provides that laws and regulations for keeping the channel, &c., 
 " of the river Pocomoke within the limits of Virginia'''' shall be made with the consent 
 of both states. How did the river Pocomoke get into the limits of Virginia for 
 any part of its course, as both states by that compact (now made perpetual) 
 admitted and agreed that it is, if the boundary line of Calvert and Scarborough 
 was not run as I contend it was ? No part of it even could be included in Vir- 
 ginia if the charter line i\an from Cedar Straits east, or if Culvert and Scar- 
 borough only ran the divisional line east from the Pocomoke River to the sea, 
 and consented to or agreed on the crooked line now proposed to be made from 
 Cedar Straits to their line by the meanders of the Pocomoke Bay and river. 
 Certainly no part of the river is within miles of any part of Virginia on Ilerr- 
 man's map or the maps of Mr. Jefferson and others who followed him. 
 
 Section 10 admits that tiiere may be doubt as to the exact location of ^^a^ 
 kins'' Point, liut while that doubt remains unadjusted Virginia reserves the ex- 
 clusive right to try all offenses committed in the doubtful or disputed waters 
 by foreigners on foreigners. The doubt probably had sprung up by reason of 
 the erroneous location of Watklns^ Point on many of the maps, and by the pos- 
 session by Maryland of land south of the line. But it shows that Maryland 
 admitted the doubt as to her right to hold it even then, and neither asserted a 
 grant from Virginia for it, as it is now alleged must be assumed, nor set up ad- 
 verse right by such holding. 
 
House Doc. No. 6. . 43 
 
 Truth is always consistent. Each link in the broken chain, when found, 
 will fit and agree with every other. I propose to submit this chain of evidence 
 to that test. Calvert and Scarborough only marked their line ; only ran it, as 
 claimed by my colleagues, from the Pocomoke River to the marsh by the sea 
 side, leaving seven miles east of the line they marked, before the end of it on 
 the ocean was reached. What became of that section of country ? Mr. John 
 De la Camp, engineer to the joint Maryland and Virginia boundary commission 
 in 1868, tells the whole story in his report. He says : " The part of the line 
 between Chincoteague Bay and the Atlantic Ocean, involved the prolongation 
 of part of the line on the mainland visible from the shore across the Chinco- 
 teague Bay to the islands bordering on the Atlantic Ocean. And here a little 
 difficulty arose. Although this prolongation was executed with as much care 
 as circumstances admitted, the. line touched those islands at points north of 
 the traditionary line, which divides two large tracts of land, the deeds of 
 which were recorded in the land offices of the two respective states, 'calling for 
 this line as the state line. This traditionary line is marked by strong posts, 
 and at the west shore of Pope's Bay even by a stone monument. " 
 
 The sub-committee for both states "agreed upon recommending the tra- 
 ditionary line acknowledged by the land offices of both states as the boundary 
 line, " which, with the storie monument as a pivot, leaves about the same quan- 
 tity of land in each state as if the Calvert and Scarborough line had been ex- 
 actly prolonged. Surely these facts show that the Calvert and Scarborough line 
 was extended substantially for seven miles further than they marked it, even 
 to the ocean, and the patents from Lord Baltimore and Sir William Berkley, 
 commencing within as few years after 1868, called for a divisional line, which 
 Mr. De la Camp found marked as he described, doubtless by the state sur- 
 veyors who made the surveys on which the grants were issued. It would be 
 •useless to cite further proof as to the eastern end of the line ; that given is 
 conclusive and uncontroverted. 
 
 Next, as to the western end. Let us see what links are there. General 
 Michler, in his report to the joint commission in 1859, speaking of the western 
 angle at Jane's Island, says : " Although the angle at this point of land where 
 it Strikes the sound is, even at this day, the most western one, still many years 
 ago the land made out into the sound a much greater distance. ' Jane's Island,' 
 is°said by Captain John Nelson, aged 72 years, to have extended within his recol- 
 lection to the present position of the light-ship, now anchored about a mile 
 and a half out from the present shore-line. " * * * " The land lying south 
 of the prolonged or broken line is principally marsh, the area of firm land 
 south of it and west of the Pocomoke not exceeding eight squai*b miles. " 
 There is no doubt, therefore, that the point from which Calvert and Scar- 
 borough started their line of survey from the Chesapeake Bay east to the ocean 
 was the extremest western angle of the body of land formed by the north side 
 of Pocomoke Bay and the south side of Annamessex Bay ; that it was the only 
 promontory on the bay, all the bay coast south of it being mere marsh, palpa- 
 bly always so at Cedar Straits. That their line was actually run from that angle 
 is obvious. Nobody, I presume, will venture to assert that they could have run 
 a line from the Pocomoke river, which was fifteen miles distant, east to the 
 
44 House Doc. Xo. 6. 
 
 ocean so accurately by guess that Michler, with his instruments, would strike 
 the very mathematical point. on Chesapeake Bay which they had described in 
 their agreement as the point from which they started. The age of miracles 
 had passed before their day, and if it is to be assumed that the'y intended to 
 state a falsehood, they could not possibly have made it correspond so accu- 
 rately with the truth ; thej^ must have run it, or Michler never could have traced 
 it back two hundred years afterwards for fifteen miles on the reverse line to the 
 very spot they described. 
 
 Lord Baltimore granted that extreme westernmost point March 19th, 1G66, 
 two years before the line was run, to Henry Smith. The Patent contained 150 
 acres, describing it as " A parcel of land formerly called Smitlis Island, (now 
 a Penynsula,) lying and being in Annamessex, beginning at a marked tree 
 standing on the southernmost side of the Island ; thence running E. by X., by 
 the Bay side, to the mouth of Cornelius Ward's creek ; thence running N.' by 
 AV. to a marked Pine standing by the Bay side; thence running W. by S. to a 
 marked tree standing on- the northernmost side of the Island ; thence running 
 by the Bay side, including the pitch of the point, to the first bounds." Thil 
 Patent shows several noticeable facts. First, there were plenty of trees there 
 which never grow on the marshes; there never was a tree on the mainland 
 within three miles of the angle at Cedar Straits, claimed by Maryland to be the 
 " Watkins' Point " of the charter. Smith, in his history, says there were trees 
 on the Watkins' Point he named, on which thgy made marks and crosses. 
 Whether the surveyor found the "marked Pine" Lord Baltimore's patent calls 
 for, or made the marks on it, cannot perhaps be determined. John Smith and 
 his companions had marked trees there many years before, ^comc/. , It was a 
 Point, and a })oint of high land on which trees grew; a Promontory or head- 
 land. Third. It had "formerly," long before it was granted to Smith, before 
 either Lord Baltimore or any private person had any occasion to give it a name, 
 been called ''Smith's Island;' most probably after Captain John Smith himself, 
 from the names, notes, marks, and crosses he and his companions had placed 
 on the trees half a century before. 
 
 On the 11th day of June, 1672, four years after Calvert and Scarburg had run 
 the line from it and fixed it as the true " Watkins' Point" of Lord Baltimore's 
 charter, Smith conveyed one-half of it to Edward Price, and in the conveyance, 
 after setting forth his patent in full, among the lines by which he conveys is 
 the following : " Thence running down the aforesaid Bay side to the northern- 
 most side of the point called ' Watkins' Point,' and from thence running round 
 the said Point to a pond called Duck Pond, kc'' How did that point acquire 
 the name of Watkins' Point between 1666 and 1672, if Calvert and Scarburg 
 did not so name it in 1668? That it did acquire it is not a fact depending on 
 tradition or the truthfulness of witnesses detailing old men's legends; it is a 
 recorded fact, made at the time wlien all the facts were fresh, and its materi- 
 ality in this or any other controversy could not have been suspected. It is 
 worth all the speculations and guesses of men after two hundred years have 
 elapsed. I do not see how the question can be answered, except by the fact of 
 the determination in 1668, that it was the true Watkins' Point. That name 
 and the accuracy of the line as developed by Michler, coupled with the facts 
 
House Doc. No. 6. 45 
 
 in Smith's History, and the acknowledged and proved character of the land 
 there and above and below it, are themselves sufficient now to show that the 
 divisional line was in fact run and properly run from that point in 1668. All 
 the witnesses agree that this point, soon afterwards called Jane's Island, was 
 the highest point on that part of the Bay, indeed the only " Promontory or 
 Headland" on it; that it w^s called the Mountain of Annemessex; that there 
 was a peach orchard on it in former times; that it extended far out towards 
 the present Smith's Island, which is still clearly shown by the soundings laid 
 down on the charts of the Coast Survey. The Maryland statement sets forth 
 these facts so clearly that it is only necessary to refer to it to show that it had 
 all the requisites of the " Wathhis' PoinV of the Charter, while the angle at 
 Cedar Straits had none of them. 
 
 I propose now to follow the patents and deeds over " Smith's Island," which 
 is situated in the Bay of Chesapeake, about five miles from the present Bay 
 shore, and see how far they elucidate the question. It is certain that a line 
 from Smith's Point on tlie Potomac or Cinquack south of it to Cedar Straits 
 would not intersect that island, but would run south of it altogether, while a line 
 drawn to the Watkins' Point I contend for ivould intersect it. 
 
 Some care is required to prevent confusion while speaking of the line across 
 -this island, because of the number of Smith's Points and Islands in the vicinity, 
 and because of the changes in the names of the places, which occurred about 
 the time referred to; to Smith's Point on the Virginia side of the Chesapeake, 
 at the mouth of the Potomac, though in fact an island, was never called one, 
 and it is no where referred to in connection with grants on the Eastern Shore, 
 or on the island in the bay now called " Smith's Island," though counsel on 
 both sides of this controversy at one time thought it was th-e Smith's Island re- 
 ferred to in the first grant of Sir William Berkeley, made in 1667, on the pre- 
 sent Smith's Island; they all abandoned that theory when the facts were care- 
 fully examined and understood. The large island in the bay now called Smith's 
 Island, which lies much nearer the eastern than the western shore of the Ches- 
 apeake, and was much nearer, as Michler's report shows, to the "Watkins' 
 Point," I claim as the true one, two hundred years ago, than it is now, had no 
 name till after the Calvert and Scarburg line was run. It was barely marked 
 on Smith's map, and was not noticed by Lord Baltimore in 1666, when he laid 
 off Somersett county; yet, an equitable division of it became necessary about 
 that time, in order to settle all questions of boundary between the colonies on 
 the Eastern Shore, to which this island naturally belonged. At that time the 
 only Smith's Island known was the westernmost angle of the Watkins' Point of 
 Calvert and Scarburg, as shown by the patent of Lord Baltimore for that. point 
 in 1666, as already explained. With this explanation the patents and deeds for 
 and on the present Smith's Island will be easily understood. The first grant on 
 it was by Sir William Berkeley, governor of Virguiia, to Henry Smith, October 
 9th, 1667, for 1,000 acres, described as being in Accomack county, Virginia, 
 ^•beginning where the east and west line from 'Smith's Island' intersects, and 
 bounded on the northern part therewith," thence by lines so as to embrace all 
 the island .south of that line. Several important questions are suggested by 
 this <rrant. It will be remembered that after the Scarburg raid in 1663, friendly 
 
46 House Doc. Xo. 6. 
 
 negotiations and personal interviews were had between Governor Calvert and 
 his chancellor, Philip Calvert, and the governor and council of Virginia, for the 
 purpose of determining and establishing the true line of division between the 
 colonies on the Eastern Shore. Lord Baltimore had, in 166G, so far withdrawn 
 his extreme claim as to abandon the line east from Onancock, and laid off Som- 
 erset county, claiming Cedar Straits as his southern boundary, running his line 
 from thence east to the ocean. Under that claim all of the present Smith's 
 Island (then without a name) would necessarily have been in Maryland, yet the 
 governor of Virginia, in October, '1G67, issued a patent for part of it, calling for 
 an east and west line from Smith's Island, (soon afterwards called Janes' Island,) 
 on the main eastern shore, as the northern boundary of his grant, which line is 
 over four miles north of an east and west line from Cedar Straits, and grants 
 land which could not possibly belong to Virginia, on the theory that Cedar 
 Straits was the initial charter point on the bay. If there-was no such line from 
 "Smith's Island," as the patent called for, how could he have referred to it? It 
 will hardly be answered that he created an imaginary line, when its existence 
 is proved by the agreement of Calvert and Scarburg, and two hundred years 
 later is traced with absolute accuracy by Michler across the Eastern Shore to 
 tl^e bay, and by Junkin and others across the island, and when it is supported, 
 as I will show, by patents and deeds from Lord Baltimore and his grantees, and 
 by subsequent jjatents and deeds from Virginia. 
 
 Of course there is a difficulty in explaining accurately how Sir William Berke- 
 ley, in October, 1667, could refer in his patent to Smith to the east and west line 
 from the main shore at "Smith's Island," and why he continued the east and 
 west line across the large nameless island in the bay. He did it, and in the ab- 
 sence of nearly all the old colonial records of Virginia, which, we were advised, 
 have been destroyed with many of the old records of Maryland also gone, the 
 probabilities of the case, as shown by secondary evidence, must govern our con- 
 clusions. The Calvert and Scarburg agreement was not signed till June, 1668. 
 The line run and agreed to by them, is the only one which was ever run. Their 
 line did not extend west of the Eastern Shore of the Chesapeake Bay. How, 
 then, it may properly be asked,' could Sir William Berkeley know in October, 
 1667, where that line would run by which he bounded his patent to Smith on 
 the north ? 
 
 I am satisfied this Watkins' Point of Lord Baltimore's charter was substan- 
 tially agreed on by Philip Calvert and the governor and council of Vii-ginia, and 
 the location of it on Smith's Islar^d, on the main shore determined on before 
 October, 1667, and that it was agreed that the outlying lands in the bay should 
 be treated and divided by the same divisional line as that agreed on for the di- 
 vision of the mainland. Many facts, other than the action of Sir William 
 Berkeley, sustain that assumption. We had record evidence before us, that on 
 the 11th day of June, 1668, twp weeks before Calvert and Scarborough signed 
 their agreement as to the boundary and land grants, Charles Calvert, thegov- 
 ernor of Maryland, signed a covenant setting forth in detail the names of the 
 persons, and the exact number of acres, wliich had been cut off by the line as- 
 sumed to have been settled prior to that date, in which he says: "Whereas the 
 lands belonging to the persons above mentioned are found since the lines are 
 
House Doc. l^o. 6. 47 
 
 laid out on the Eastern Shore in Somerset county, to be within this province of 
 Maryland, I do hereby promise to ratify and confirm, by virtue of his Lordship's 
 instructions to me directed, every of the lands by patent or grant,"' &c., made 
 by the authorities of Virginia. Kot only had the lines been all settled then,* 
 but the governor had received definite instructions from Lord Baltimore, then 
 in England, exactly what to do in regard to them. Of course Lord Baltimore 
 issued his instructions because of information a,s to all the facts first sent to him 
 from Maryland, which, by the ordinary means of communication then, it is 
 agreed, would have taken many months, rendering it highly probable that the 
 agreements were all in fact made before October, 1667, and their formal ratifi- 
 cation and settlement delayed till Lord Baltimore was fully advised' and gave 
 his sanction and orders as to the final and formal consummation of them. In 
 this connection, as before suggested, I can understand how Scarborough's grants 
 north of the divisional line may have operated to delay final action in signing 
 the agreement as to the boundary. He alone had power, by virtue of his com- 
 mission as surveyor-general, to lay off the boundaries of the colony, subject to 
 the advice and order of the governor and council. He might have well have 
 held back the final ralyification of the divisional line until instructions were re- 
 ceived from Lord Baltimore and his orders consummated protecting all the 
 Virginia grants north of the line in which he was so largely interested. The 
 covenant of Governor Calvert is on pages 34 and 36 of the volume of state- 
 ments and evidence, dated 1872, submitted to us. I have examined it as care- 
 fully as I could to ascertain when the grants protected by it were made. Many 
 of them will be found on pages 136 and 137 of that volume, and I have been 
 unable to fjnd that any of these patents were issued or any of the entries made 
 after July, 1667. They run from 1661 to 1666— numbers of them in the latter 
 year. If the fact is as I believe it to be, it strongly fortifies the assumption that 
 the line was in fact agreed on before July, 1667, and explains how Sir William 
 Berkley issued the patent at that time on Smith's Island, calling for the line 
 on the main Eastern Shore. If no such line had been agreed on, it is hard to 
 understand why the granting of patents by Virginia, which had been so ac- 
 tively carried on in 1666, should have ceased in 1667. The patent of October, 
 1667, certamly shows that Sir William Berkley knew of the existence and 
 general location of the line at that date; and his grantees, Henry Smith and 
 Colonel William Stevens, who aided Calvert in establishing the line, knew 
 beyond question exactly where the line would terminate on the main shore and 
 how an east and west line drawn from it would divide the island in the Bay. 
 The next patent, indeed the patent for the balance of this island was issued by 
 Lord Baltimore on the 2d day of Septenjber, 1682, for 1,000 acres to Henry 
 Smith, of Somerset county, Maryland, as assignee of Colonel William Stevens, 
 of that county, and the same person who had received the one-thousand-acre 
 grant from Sir William Berkley, Governor of Virginia, in October, 1667. 
 
 The patent recites that it was issued "according to a certificate of survey 
 thereof taken and returned unto the land office of the city of St. Marie's, 
 bearing date the 7th of June, 1679, and there remaining upon record." Un- 
 fortunately the record of that survey cannot be found. The grant is called 
 " Pittscraft," and among the lines described in it is the following: "Thence 
 
48 ■ House Doc. Xo. 6. 
 
 for the eastern boundaries, bounded down the side of said sound by the said 
 sound to the divisional line drawn between Maryland and Virginia ; thence for 
 the southern boundaries, bounded by the said divisional line running west to 
 the aforesaid bay side." There are several noticeable facts in this patent : First. 
 Be it remembered that if Calvert and Scarburg only ran their line from the 
 Pocomoke river east to the sea, leaving all the balance of the line to be divided 
 by meandering down the Pocomoke river and through the sound to the southern 
 angle, now called by Maryland " Watkins' Point," no divisional line, such as 
 Lord Baltimore describes in this patent, coujd by possibility have been run 
 through any part of the island to which this grant relates. Second. This patent 
 runs an east and west line across the island, exactly as the patent from Sir 
 William Berkley had done, showing that a prolongation of the n^ain-shore line 
 had been agreed upon. It is assuming a good deal to suppose that Lord Balti- 
 more and his oflBcials, as late as 1682, were ignorant of the true boundaries of 
 the provinces, when, as early as 1656, he had by proclamation directed his 
 governor and council " to cause the bounds of Maryland to be kept in memory 
 and notoriously known, especially the boundaries between Maryland and Vir- 
 ginia on that part of the country known there by the name of the Eastern 
 Shore." 
 
 And it would be assuming still more to assume, in order to fix a '* Watkins' 
 Point" at Cedar Straits, that Colonel William Stevens, who had the survey of 
 Pittscraft made, did not know that an east and west line from that point would 
 leave no divisional line on the island on which his patent was laid, and that 
 Henry Smith, who had obtained a patent from Governor Berkley for 1,000 acres 
 of it in 1667 at that time, and when he took the assignment of Stevens' survey, 
 both being citizens of Somerset county, Maryland, did not know all about the 
 true location of the line spoken of and agreed to in both patents. Lord Balti- 
 more's patent called for the same line as Sir William Berkley's, calling it the 
 divisional line between Maryland and Virginia. Sir William Berkley had 
 called for the east and west lines from Smith's Island, so that both agreed pre- 
 cisely with the line of 1668; therefore, whatever mistakes map-makers made, 
 or however they laid down the islands, rivers, or bays, it was impossible for 
 Henry Smith or Colonel William Stevens, both intelligent citizens of Maryland, 
 to be mistaken as to the location of the land they surveyed and- purchased. 
 The island lay in view of Smith's Point on the Virginia side of the bay, still 
 nearei to Cedar Straits, and nearer still to '^ Smith's Island,'^ the terminal points 
 of the Calvert and Scarburg line on the eastern shore. They knew an east and 
 west line. The sun and the north star shone then as now ; no comj^ass was 
 needed to determine it ; suggestions of mistakes as to the location of the island 
 in the bay by Smith and Stevens in order to destroy plain facts will hardly be 
 seriously regarded. I cannot understand how these grants containing su*h re- 
 citals could have been made to such men by both governments if there had 
 never been any divisional line run between the colonies except east of the 
 Pocomoke river, which is fifteen miles distant from the Chesapeake bay, where 
 the acknowledged line crosses it, if from that river the liiie meandered down 
 through it and the bay to Cedar Straits. Smith and Stevens must have known 
 that no cast and west line could possibly toucli the island tliey were buying 
 
House Doc. ^^o. 6. ' 49 
 
 and selling. In other words, to maintain the crooked line theory Sir William 
 Berkley, Lord Baltimore, Colonel Stevens, and Henry Smith, the two latter 
 especially, as they wei'e on the ground, are assumed to have been utterly igno- 
 rant of what they were doing (when the reverse is the reasonable presumption). 
 
 It must be borne in mind that Colonel William Stevens was, as shown and 
 urged zealously before us, the richest man and largest land speculator on the 
 Eastern Shore. He was, shown to be the founder of Rehoboth, one of Lord 
 Baltimore's commissioners to lay off Somerset county, and one of the justices 
 of the peace summoned by Philip Calvert to aid and advise him in laying ofT 
 the Calvert and Scarborough line. It was therefore impossible for him not to 
 know all the facts; and when he had a survey made and recorded to meet the 
 Virginia survey and patent for 1,000 acres, and thus connect his with the Vir- 
 ginia 1,000 acres grant, and called for the divisional line between the states, 
 from Jane's Island or the Western angle as the line of his patent, it is evidence 
 OVERWHELMING of the existence of such a divisional line run by Calvert and 
 Scarborough. 
 
 It is thus that the acts and lines on Smith's Island demonstrate the truth of 
 the position that the divisional line of 1668 ran, as I contend it did, from the 
 bay to the ocean. 
 
 Again, to show that the line prolonged from Jane's Island, the Watkins' 
 Point of Calvert and Scarborough, was a well-known and i^erfectly recognized 
 line, carefully marked, and running east and west through what is now called 
 Smith's Island in the bay; I refer to the patent granted in 1703, for some cause 
 or other disregarding the grant to Henry Smith, in 1667, for the Virginia por- 
 tion of it in Accomac county, by the governor of Virginia to Francis McKen- 
 nie, Arcadia Welborne and others. In this patent the northern boundary is 
 thus described: "Beginning at a marked lightwood stump standing near Nan- 
 ticoke Sound, thence by marked trees and over marshes and guts, west one 
 thousand and twenty poles to the Main Bay of Chesapeake." 
 
 The grant of Lord Baltimore to Pittscraft, said the line was surveyed and the 
 survey recorded. This Virginia grant, in 1703, found the corner tree on the 
 Sound (then called Nanticoke, now Tangier,) marked, and the marked line- 
 trees all along the line, which was 1,020 poles long. How could the distance of 
 1,020 poles be ascertained without a survey ? Can that be pronounced false, too, 
 after Mr. Junken finds, by his late survey, that the width of the island on that 
 line, after allowing for the washing away, which is proved and admitted, was 
 about 1,020 poles? 
 
 In August, 1693, Henry Smith, the grantee in both patents, and a citizen of 
 Somerset county, Maryland, sold to John Tyler, of the same county and pro- 
 vince, two hundred acres of land, which the counsel on both sides located 
 by elaborate proof and argument on the eastern side of the island, about one- 
 half of it north and the other half south of the line which Virginia claimed as 
 the prolongation west of the line of Calvert and Scarburg. He set forth in the 
 conveyance both his patents from Maryland and Virginia, carefully by the metes 
 and bounds therein given, and then describes the two hundred acres he was 
 conveying partly thus: 
 
 7 
 
50 ■ House Doc. Xo. 6. 
 
 "A part or parcel of land taken out of the aforesaid 2,000 acres of land 
 granted as aforesaid, viz, by Sir Wm. Berkley and the Lord Baltimore, as by 
 the several patents more amply and fully appear," &c. 
 
 I attach more importance to the facts set forth in this deed than to any other, 
 because it was made b}^ the man to whom both grants issued, a man who knew 
 all the facts, who could have no interest in reciting falsehoods, himself a citizen 
 of Maryland, conveying to another citizen of Maryland. "While the action of 
 Calvert and Scarburg was yet fresh, and doubtless within his personal knowl- 
 edge, he went before two justices of the peace of Somerset county, with the 
 deed, and had the following certificate endorsed on it: 
 
 "Hex. Smith. [Sealed.] 
 
 "Signed, sealed, and delivered in sight and i^resence of us, 
 
 " Sam'l Alexander. 
 "J. Gray. 
 
 " In memorandum that this day, viz, the 8th day of August, in the .5th year 
 of their ma'ties reign, William and Mary, over England, kc, Anno Domini, 
 1693. Before Thomas Xewbold and Jno. King, gents., two of their ma'ies jus- 
 tices of the peace for the county of Somerset, in the jjrovince of Maryland, 
 came the within-named Henry Smith, in his proper person, and did acknowl- 
 edge the within-mentioned land, containing two hundred acres, part thereof 
 lying in \'irginia and part in Maryland, to be right of him, the within-named 
 Jno. Tyler, and his heirs forever; and for this acknowledgment, quitclaim, and 
 agreement the said Jno. hath given him, the said Henry, nine thousand pounds 
 of tobacco. 
 
 ■ " Ths. Newbold. 
 " Jno. King. 
 
 " Coram nobis. 
 
 "Entered llie 17th of August, 1693, pr. 
 
 " Jno. "West, Cir cr. " 
 
 It seems to me imi")ossible that this deed, containing such recitals, could have 
 been made by, to, and before persons so familiar, from the very nature of things, 
 with all the facts, if, as is now assumed, Calvert and Scarburg never laid down 
 any line west of the Pocomoke River, but followed its meanders to the bay and 
 thence to Cedar Straits. 
 
 Again, in August, 1718, John Caldwell, attorney for John Smith, grandson of 
 the original grantee in both patents, conveyed 150 acres of land to Arthur Parks 
 and Tliomas Summers, which was shown by other deeds and proofs to be very 
 near tlio protraction of the Calvert-Scarburg line, which he bounded as follows : 
 
 " Beginning where an east and west line enters the marsh from Jane's Island, 
 being the Virginia line, tlirough the aforesaid Smith's Island, where the said 
 line enters the marsh upon the west side of a creek called Dogwood creek," &c. 
 
 It will be observe<l that eacli deed keeps up the call for the boundary line 
 between Maryland and Virginia about the place where the Calvert and Scarburg 
 line protracted would cross the island, and all call for an east and west line 
 across it. These facts do not rest on tradition, and are not dependent on hu- 
 man memory or human prejudice; they are the record of facts made at the 
 
House Doc. Xo. 6. 51 
 
 time without reference to this or any other dispute. As late as 1848 Kicharcl 
 Evans conveyed to John Marshall, of Accomac county, a resident of the south- 
 ern part of Smith's Island, a tract of land described thus :' "On the north by 
 the lands of Elijah Evans, of Somerset county, Maryland, and the state line 
 separating the states of Virginia and Maryland." This tract is about the 
 point where the traditionary line from Jane's Island crosses Smith's Island, 
 perhaps just south of it. It is unnecessary to elaborate further by tracing the 
 deeds over this island. Both sides admitted before us, indeed the facts proved 
 conclusively, the existence of a divisional line between the states, running 
 nearly due east and west across it. Virginia claiming a continuation of the Cal- 
 vert and Scarburg line, and Maryland contending for a line from Horse Ham- 
 mock on the eastern to Sassafras Hammock on the western side of the island. 
 Either line establishes the proposition I maintain. They are about a mile apart ; 
 that of Maryland being over three miles and that of Virginia over four miles 
 north of any possible east and west divisional line from Cedar Straits, while both 
 are near and necessarily result from and are the product of the Calvert and 
 Scarburg line to the westernmost angle on the main shore. Many circum- 
 stances combined, especially of late, to make as many of the citizens and resi- 
 dents of Smith's Island as could possibly do so become citizens of Maryland. 
 The island was so fiir from Drummund Town, or any other settled portion of 
 Accomac county, Virginia, and the means of reaching these, especially in- the 
 winter or in stormy weather, so precarious, that the inhabitants of the Virginia 
 portion of the island were almost deprived of the rights of citizenship any- 
 where. On the other hand, the island was near the Maryland shore. The 
 largest and most populous portion of it was unquestionably in Maryland. 
 Crisfield, on the main shore, and other points in Somerset county, were spring- 
 ing up, and the business and social intercourse of the islanders was almost ex- 
 clusively with Maryland. Two justices of the peace, who could take acknowl- 
 edgment of deeds or decide cases, were kept in commission by Maryland. In 
 1835 she established an election precinct on the island, and her commissioners, 
 ■without going near " Horse Hammock," where John Tyler lived, hearing that 
 he was, perhaps, the best qualified man on the island for judge of elections or 
 justice of the peace, laid off the election precinct so as to take in his house, and 
 he was soon afterwards qualified as one of the justices. It does not seem to me, 
 under all the circumstances, that the action of Maryland, then or since, in re- 
 gard to that line is sufficient to give title by possession if the divisional line is 
 where all the patents and deeds place it, viz, a pi'olongation of the Calvert and 
 Scarborough line. It is perhaps unnecessary for me to set forth further the 
 evidence as to tiie recognized stones and ti^ees, or the fact as to the marriage 
 house along the traditional line north of the Horse Hammock line. Many of 
 the voters on the island north of the Maryland precinct voted in Virginia as 
 late as 1855, in the race between Governor Wise and Mr. Flournoy. I su2:>pose, 
 however, they generally voted in Maryland. 
 
 It seems to me that the patents, deeds, marks, and traditions ought not to 
 be abandoned for a precinct line which recognizes neither the Cedar Straits nor 
 the Calvert and Scarborough line, especially as it was established so recently by 
 men who never saw it. 
 
52 House Doc. Xo. 6. 
 
 If the action of the Marvlaii'l authorities, in regard to the election precinct 
 and otlier matters on Smith's Ishmd is to be regarded as conclusive or highly- 
 persuasive as to her right, the action of her courts ought to be more so. The 
 case of the schooner "Fashion" was one of the principal causes leading to the 
 passage by Maryland of the act of 1852, out of which this commission grew, 
 and may be briefly stated as follows: Some time previous" to 1851 Maryland 
 had passed a stringent law prohibiting the dredging for oysters in her waters. 
 John Tyler, sometimes called John Tyler of Severn, was captain of the 
 " Fashion," and was dredging for oysters on the Little Eock, in Tangier Sound, 
 in what was clearly Maryland waters, if Cedar Straits is the boundary line, and 
 in what is clearly Virginia waters, if the Calvert and Scarborough line extended 
 to the western angle at Jane's Island. The volume containing the Maryland 
 and Virginia Eeports of 1872, from pages 225 to 240, gives the pleadings and 
 court entries in full. They were laid before us the record in the case. Dis- 
 tinguished counsel appeared on both sides, J. W. Crisfield, W. S. Waters and 
 "William Daniel being attorneys for John Tyler, and "William Tingle and I. D. 
 Jones for Cullen. "While there was a good deal of testimony taken in regard 
 to it, it is very clearly stated in the deposition of John Tyler, taken at Crisfield, 
 Maryland, June 27, 1876, as the following extract shows : 
 
 "3d question by same. "Were you concerned in the trial of the schooner 
 Fashion for dredging for oysters unlawfully in Tangier Sound in 1851, and how ? 
 
 "Answer. 1 was captain of the vessel, and was arrested by Captain John Cul- 
 len, who was on board of the steamer Herald, and was carried before Justice 
 J. B. Stevenson, of Maryland, and was convicted, and the vessel was con- 
 demned. 
 
 "4th question by same. "Where were you dredging? 
 
 "Answer. I was dredging on the Little Rock, which is between Great Rock 
 and Filliby's Rock. 
 
 "5th question by same. "Were you present when the appeal in the case was 
 tried at Princess Anne? 
 
 "Answer. I was. 
 
 "6th question by same. Did the question arise in the case as to where th& 
 state line ran from Smith's Island to Little Annamessex, or what was the ques- 
 tion in the case? 
 
 "Answer. That was my only plea, tliat I was dredging in Virginia waters. 
 
 " 7th question by same. Did you hear the testimony in the case, and who were 
 examined as witnesses? 
 
 " Answer. I heard the testimony, and Thomas Tyler, my grandfather, "William 
 Tyler, James II. Hoffman, "W. G. Hoffman, and others, were my witnesses. The 
 state had Mr. James Lawson, and other old gentlemen from the lower part of 
 Annamessex Neck, on her behalf. 
 
 "Sth question by same. "Were other parts of the line between the states en- 
 quired into, and what parts? 
 
 "Answer. My grandfather I had heard speak a great deal about the line, and 
 I rested on what he had told me about the line, and dredged in accordance with 
 what he told me. The line across th'e island, and I believe also the line extend- 
 ing from the island as far as to Pitt's Creek on the Pocomoke River, was dis- 
 cussed in court. 
 
 "9th question by same. State what was proved as to the line across Smith's 
 Island, and the line across the sound? 
 
 " Answer. My grandfather said that the line ran from the stone three-quarters 
 of a mile above Ilorse Hammock, west to the bay, and from the stone easterly 
 to the mouth of Little Annamessex river. He and Mr. James Lawson, the two 
 oldest men summoned in the case, agreed as to the line, and upoji their evidence I 
 
House Doc. 'No. 6. 53 
 
 loas cleared. Mr. James Lawson was summoned for the state of Maryland, and 
 my grandfather was summoned on my side. 
 
 "iOth question by same. Was the evidence sustained by other witnesses in 
 the cause? 
 
 "Answer. It was (I think) by all who testified about the line. The old wit- 
 nesses testified on that point." 
 
 When asked as to the location of Filliby's Eock, the Little Rock, and the 
 Great Rock, he said : 
 
 "Answer. They all three lie east of the Sound channel; and Filliby's Rock 
 is farthest north, the northern part of which is perhaps one-quarter of a mile 
 south of the light-house near Jane's Island. The Little Rock is farther south, 
 perhaps from one-half to three-quarters of a mile south of the light-house afore- 
 said, it lying between Filliby's and the Great Rock. G#eat Rock lies southwest 
 •of Little Rock; the western part goes down to the channel, but the great body 
 of it lies towards the Annamessex shore. By 7-ock we mean a bed of oysters.''^ 
 
 It will thus be seen that before this controversy arose, the court of Somerset 
 county, Maryland, reversed the decision of the justice of the peace, acquitted 
 John Tyler, and released his schooner when he vras dredging not less than three 
 miles north of Cedar Straits, on the east, or Maryland side of Tangier Sound, 
 and therefore not protected even by the Horse Hammock and Sassafras Ham- 
 mock line across Smith's Island, solelt/ upon the ground that he was dredging in Vir- 
 ginia waters, being south of the boundary line between Maryland and Virginia 
 on Janes' Island, extending, as was proved, over Smith's Island. In short, he 
 was protected expressly by a judicial recognition of the Calvert and Scarburg 
 line, as, I insist, it was located by them. Afterwards Tyler sued Mr. Cullen for 
 damages, for seizing and detaining the Fashion, and after verdict a judgment 
 was rendered against him, which he paid. Mr. Cullen testified that his coun- 
 sel, Judge Tingle, and Mr. Crisfield, the attorney for Tyler, both sj^oken of as 
 able lawyers, agreed that he had to pay the judgment, but they thought he had 
 a good casie to petition the legislature of Maryland for relief on, as he was an 
 ofKcer who thought he was discharging his duty in making the seizure. This 
 case led to the subsequent legislative action. 
 
 It is hard to understand how Maryland, through her courts and her lawyers, 
 could have given a more absolute recognition of Virginia's right, under the line 
 of 1668, than the "Fashion" case presents. It is certain that there was no 
 ground for believing that Cedar Straits was the Charter Watkins' Point, or such 
 judgments never would have been rendered by the Maryland courts, with such 
 lawyers defending. It was shown clearly before us that Maryland never had 
 exercised exclusive jurisdiction over any portion of the waters of Tangiei' Sound 
 soutk of the line of Calvert and Scarburg, at the Watkins' Point claimed by 
 Virginia, and that she not only never exercised exclusive jurisdiction over any 
 portion of the waters of the Pocomoke Bay, but that Virginia repeatedly as- 
 serted her right of sovereignty over the whole of the Bay of Pocomoke; she 
 established police and revenue regulations over it, and a citizen of Maryland 
 was killed in an affray originating in the effort of Virgiriia officials to enforce a 
 very rigorous construction of the Virginia laws over the right of oystering in 
 the bay. Virginia paid five-eighths and Maryland three-eighths of all light* 
 house and other expenses on it. Virginia alone could try foreigners for offen- 
 
54 House Doc. Xo. 6. 
 
 ses committed on foreigners, and in many other forms asserted her superior 
 right. I think it may be safely said that Maryland never asserted more than a 
 common right with Virginia in Pocomoke bay, and never claimed exclusive 
 jurisdiction over any part of its waters. 
 
 Before sjieaking of the effect to be given to possession, I will close this long 
 and somewhat disconnected review of the history of this controversy, and of 
 .the reasons which controlled me in reaching the conclusions I have arrived at, 
 by noticing as briefly as I can the effect which the last or closing line has on 
 the question. 
 
 Although it was argued, I think it can hardly be seriously contended, that 
 the language used in describing the closing line of the charter to Lord Balti- 
 more, which calls for the^" shortest line" or a straight line (which is always the 
 shortest) from Cinquack or Smith's Point to WatMns'' Point, throws any light on 
 the question as to the location of the true Watlins' Point on the Eastern Shore. 
 Whether it was at " OnancocJc,'^ as Lord Baltimore first claimed, or at " Xaniicoke,^^ 
 as Virginia asserted, or at the lower point of Watts' Island, as the Maryland 
 commissioners lately believed, or at Cedar Straits, as Maryland now assumes, or 
 at the westernmost angle of the promontory on the Calvert and Scarborough 
 line of 1668, as Virginia insists it is, the closing line from the western side of ' 
 the Chesapeake must be drawn straight to it, and can be drawn as well to one 
 as the other, without throwing any light on which is the true beginning. The 
 closing line must run to the beginning. The survey of the charter could not 
 otherwise be closed. " Watkins'' Point" is nowhere assumed, either in the char- 
 ter or in any controversy between the colonies or the states, to be the point or 
 place nearest the western side of the bay at the mouth of the Potomac. It is 
 not certain that Captain Smith knew where the mouth of the Potomac was 
 when he named " Watkins Point." It is very certain that he did not so name 
 it because it was the land nearest to the place he called '■^Cinquack'''' on the 
 western side of the bay. Wherever he fixed Watkins' Point is the tru^charter- 
 line of division, which both states have directed us to ascertain and report j 
 and though there may be a dozen places or angles or points on the Eastern 
 Shore nearer to Smith's Point or Cinquack than John Smith's Watkins' Point, 
 we cannot close the Maryland charter boundary line by running the line to any 
 of them. The fact that no one, either under the colonies or the states, in all 
 the controversies relative to the true initial point of Lord Baltimore's charter, 
 ever suggested that the call in the closing line for the "shortest line" to the 
 beginning, threw any light as to where the beginning point was, or that it con- 
 trolled the first line that the charter required to be run, or determined its 
 locality, is highly persuasive evidence, if any is needed, to show that thei^ is 
 no real merit in the argument on that point. 
 
 I have up to this point avoided speaking or the adniilted fact that Maryland 
 has always held possession of and exercised jurisdiction over all the land west 
 of the Pocomoke river and south of tlie line of Calvert and Scarburg, which t 
 have been contending is the true divisional line, because, if I have failed to 
 show that I am right as to that line, there can be no question as to the right of 
 Maryland to all the land west of Pocomoke river down to Cedar Straits. I 
 shall assume, therefore, when speaking of the effect of possession, that I- am 
 
House Doc. No. 6. 55 
 
 right as to the line of Calvert and Scarburg extending from the Chesapeake 
 bay to the ocean, and that it is the true southern line of Lord Baltimore's 
 charter on the Eastern Shore. That being so, what rights have been acquired 
 by possession of the land south of the true line? The King, in the charter of 
 1G32, after setting out the boundaries of the grant, add?, "so that all that tract 
 of land divided by the line aforesaid drawn between the main ocean and 
 Watkins' Point unto the promontory called Cape Charles and all its appurte- 
 nances do remain entirely excepted to us, our heirs and successors forever." 
 AVith that express restriction and reservation in the charter. Lord Baltimore 
 could not, either by laying off the county of Somerset to Cedar Straits, or to 
 Onancock, or to any point south of his charter line, have acquired title by 
 l^ossession against the King. Certainly not without avowing his intention to 
 hold it, even though it was outside of his charter. Virginia remained a Eoyal 
 Province till she declared her independence in 1776. Her right and title was 
 the right and title of the King up to that time. She could not, if she had 
 tried, have deprived the King of his sovereign jurisdiction over all the territory 
 he had ^^ entirely excepted" in the charter for Maryland to himself, his heirs and 
 successors forever, and there is no evidence that she ever attempted to do so. 
 Neither the possession of Lord. Baltimore nor the neglect or ignorance of the 
 agents of the King in Virginia in allowing him to hold south of his charter 
 line could destroy or weaken the title of the King to the property he had so 
 expressly reserved. It is certain that Virginia never granted anything to Lord 
 Baltimore south of his charter line. Her complaint to the King in 1682, which 
 I have already set forth, proves that she was more aggrieved at what Calvert 
 and Scarburg had given him than disposed to grant him anj' more ; and it is 
 equalljr certain that he received no additional grant from the King, and never 
 asserted anj^ right, by possession or otherwise, south of the line of his charter. 
 The letters sent by the King's order to Lord Baltimore, relative to his bounda- 
 ries, and to the settlement of his controversy with William Penn, assume that 
 the line fixed by the Commissioners in 1668 as the southern boundary of his 
 charter was conclusive, as Lord Baltimore's own letters, answers to the Com- 
 missioners in, London, and his conveyances and orders assumed that it was. 
 Therefore the presumption of a grant which, after possession for a great length 
 of time, arises as between private individuals, does not operate in the matter 
 we are considering. That was beyond question the Eiiglish law prior to the 
 Revolution. 
 
 Looking over the whole ground, it is not difficult to understand how Mary- 
 land happened to retain the land west of the Pocomoke and south of the 
 charter line. Greneral Michler, in his report in 1859, says " that the land lying 
 south of tlie prolonged or broken line is principally marsh, the area of the firm 
 land south of it and west of the Pocomoke not exceeding eight square miles." 
 The whole quantity of land south of the line, on the west side of the river, is 
 about twenty-three square miles, or less than 15,000 acres, and the firm land is 
 only about 5,000 acres. The line from the Pocomoke river to the western angle 
 of the point on the bay is fifteen miles long, so that there was less than 1,000 
 acres of land of any sort, and only about 300 acres of firm land on an average 
 to tlie mile along the whole line. It could hardly be supposed or expected, at 
 
56 House Doc. Xo. 6. 
 
 a time when land was cheap and population sparse, that men who wanted to 
 locate in Virginia would seek to obtain grants from her authorities and settle 
 where they would be separated from the great body of Accomac county, de- 
 prived of all the protection and advantage of Government, to live in isolated 
 spots surrounded by swamj^s. It must not be forgotten that religious intole- 
 rance prevailed at that time to an extent which we would now regard as absurd, 
 if not impossible. The few scattered Virginians who could have been located, 
 or .^' seated,'^ as it was then called, on the spots of firm ground, would have felt 
 very much like convicts, surrounded by Quakers, Catholics, and other Non- 
 conformists, whom thej' had i^erhajis aided in driving out of Virginia because 
 of their heretical opinions. 
 
 A very different condition existed as to the settlement of this strip of land 
 under the Government of -Maryland. Lord Baltimore had, as early as 1661-'62, 
 urged his officers to push his settlements as far and as rapidly southward on the 
 eastern shore as possible, and while Virginia was pushing north on the eastern 
 side of the Pocomoke so rapidly that before 1668 she had granted over 33,000 
 aci'es, or more than fifty square miles, north of the line established by Calvert 
 and Scarburg, Maryland was pushing South, on the "West side of that river, 
 wnth all 2?ossible energy. Lord Baltimore had made a nuniber of grants, as the 
 Patents laid before us showed, on the west side south of the Calvert and Scar- 
 burg line from 1664 to 1667. He had laid off the county of Somerset in 1666 
 so as to embrace all the land Avest of the river and north of Pocomoke Baj'. 
 He had established "hundreds," and laid out roads, organized the militia, 
 and had all the settlers looking to his officials for protection and assistance. 
 When the Calvert and Scarburg line was establislied he had covenanted to pro- 
 tect all the grants made by Virginia north of the line. No protection was 
 given by Virginia to his grantees south of it. Of course all who could, clung 
 to the Maryland Government for protection, all west of the Pokomoke did so, 
 as there were no Virginia grants there to call for the line or for protection under 
 the agreement. The Maryland courts were convenient; everything in short 
 combined to make Virginia neglect and Maryland hold on to the slip of land 
 south of the line and west of the Pocomoke, while every interest united to 
 cause the lines east of it to be carefully maintained. Scarburg does not appear 
 any more after 1668. It was not shown when he died. Lord Baltimore, in 
 1671-72, in the recitals in the grants he made under the agreement of 1668, 
 speaks of him as " the late Surveyor General of Virginia.^' Very few patents were 
 issued by Lord Baltimore for any land south of the line west of the river for 
 several years after 1668, only one or two for five yearSj and very few for seven 
 or eight, until it became apparent that the settlers still clung to Maryland, and 
 Virginia took no steps to interfere. Probably after Scarburg was gone hardly 
 any one cared anytliing about tiiat detached fragment of land. He must have 
 been well advanced in years when the line was run, as he was a representative 
 of Accomac county in the Grand Assembly of Virginia thirty-eight years before 
 he ran the line. Soon after 1668 Herrman's map appeared ; it purported to be 
 a map of Virginia and Maryland, " published by authority of his majesty's royal 
 license and particular privileges * * * for fourteen years from the year of 
 our Lord 1673. It laid down the Calvert and Scarburg line straight from the 
 
House Doc. JN'o. 6. 57 
 
 ocean to tlie Chesapeake, drew the double rows of trees along the line east of 
 the Pocomoke, but made the line run through the bay of Pocomoke to the 
 southern angle at Cedar Straits showing no land south of the straight line of 
 1668 west of the Pocomoke river. Doubtless it was extensively circulated in 
 both colonies, and was well calculated to deceive, and no doubt did deceive the 
 people of Virginia and the authorities by making them believe that Virginia 
 had no land to grant on the eastern shore west of the Pocomoke. Mr. Jeffer- 
 son's map, as well as that of Fry & Jefferson, follow Herrman's. They evidently 
 copied theirs from his. The line of Calvert and Scarburg is marked and the 
 date of it given on each of them ; that of Mr. Jefferson extending it as Herr- 
 man had done, sti'aight to Smith's Point, but throwing it down so as to cross 
 Pocomoke Bay six or eight miles lower than where we know it actually is, and 
 leaving no land in their jirotraction of the Calvert and Scarborough line in 
 Virginia west of the Pocomoke. All of them are now known to be palpably 
 wrong, but they deceived Virginia as to her rights, and show how it was that 
 Maryland retained possession of the land which lay south of her charter line 
 on the west side of the Pocomoke river. It was a rule in the English colonial 
 office to require governors and proprietors of colonies and grants in America to 
 report, in answer to interrogatories, such facts relative to the condition of their 
 provinces, their boundaries, trade, &c., as the "Lord of the Committee of Trade 
 and Plantations" required. 
 
 The reply and complaint of Virginia in 1G82, claiming that the Calvert and 
 Scarborough line had been unfair to her by not fixing " Waikins' Point" at Nan- 
 ticoke, fifteen miles north of the line they agreed on, was in answer to inter- 
 rogatories of that sort. "We have before^ us, from pages 217 to 222 of the Book 
 of Eeports and Statements, &c., of 1872, a series of similar questions pro- 
 pounded to Lord Baltimore on the 10th of April, 1678. Tlie tenth question is, 
 *' What are the boundaries, longitude, latitude, and contents of land within 
 the province? — what number of acres patented, settled or unsettled, and how. 
 much of manureable land ?" Lord Baltimore's answer to this question as to 
 his boundaries has been given in another connection, but it is better perhaps 
 to repeat it here. He says : '' To the 10th I answer, that the boundarys, longi- 
 tude, and latitude of this Province are well described and set forth in a late 
 map or chart of this Province lately made out and prepared by one Augustine 
 Herrman, an inhabitant of the said Province, and printed and publicly sold in 
 London by his Majesty's license, to which I humbly refer for greater certainty, 
 and not to give their Lordships the trouble of a large, tedious description here." 
 
 Nothing api^ears to indicate that the commissioners demanded any more 
 sjoecific description of the boundaries. Herrman had not only drawn the 
 divisional line straight from the ocean to the bay, but he had with great min- 
 uteness described his line as the line laid down by Calvert and Scarborough. 
 Lord Baltimore ad'opted it, and the commissioners accepted it. Michler and 
 others have established and located it. Lord Baltimore never claimed nor did 
 Virginia or the king ever concede that he was entitled to any land or water 
 south of it. His holding, therefore, south of the line, west of the Pocomoke 
 river, was simply by mistake on both sides, and not by either claim of right on 
 one side or hy concession or abandonment of right on the other. 
 
58 House Doc. Xo. 6.* 
 
 I am satisfied that the English authorities before the Revolution all agree 
 that such liolding vinder a charter containing such absolute exceptions in favor 
 of the king to all the land and its appurtenances south of the charter line did 
 not vest the title in Lord Baltimore, nor abridge in any way the king's absolute 
 right to take it away at any time. This mistake on both sides was brought 
 about in great part by erroneous maps, which were circulated extensively and 
 relied on without examination as to their correctness, as all of them showed 
 that Virginia had no land west of the Pocomoke River by the map-makers' 
 protraction of the line of Calvert and Scarborough. ^ 
 
 If I am right in the assumption that Maryland acquired no right either from 
 the king or Virginia by possession under the circumstances I have indicated,, 
 she had no title to it when the colonies threw off their allegiance to the king. 
 The next question is, what title has she acquired since. Virginia, by the 21st 
 section of her constitution of 1776, already referred to, provided that "The 
 territories contained within the charters erecting the colonies of Maryland, 
 Pennsylvania, North and South Carolina are hereby ceded, released, and for- 
 ever confirmed to the people of those colonies respectively." 
 
 This provision certainly contained no grant beyond what the charter of Mciry- 
 land gave her, and parted with nothing of hers which Maryland had in' posses- 
 sion outside of her charter line. 
 
 The compact between the then sovereign and independent states of Maryland 
 and Virginia, entered into in 1785, while it rejieatedly recognizes the Pocomoke 
 River as being within the limits of Virginia, as it undoubtedly is, from the point 
 where the Calvert and Scarburg line crosses it to its mouth, if I am correct in 
 my construction of their action ; and as it undoubtedly is not for any distance 
 whatever, if the crooked line from Cedar Straits is accepted as the true one, in 
 the tenth article makes the following provisions : 
 
 '' Tenth. All piracies, crimes, or offenses committed on that part of Chesa- 
 peake Bay which lies within the limits of Virginia, or that part of the said bay 
 where the line of division from the south of Potowmack River (now called 
 Smith's Point) to Watkins' Point, near the mouth of Pocomoke River, may be 
 doubtful ; and on the part of Pvcomoke river, icithin the limits of Virgwia, ov where 
 the line of division between the two states upon the said river is doubtful, by 
 any persons not citizens of the commonwealth of A'^irginia against the citizens 
 of Maryland, shall be tried in the court of the state of Maryland which hath 
 legal cognizance of such oftense. And all piracies, crimes, and offenses com- 
 mitted on the before-mentioned parts of Ciiesapeake Bay and Pocomoke river,, 
 by any persons not citizens of Maryland, against any citizen of Virginif\, shall 
 be tried in the court of the commonwealtJi of Virginia which hath legal cog- 
 nizance of such offense. All piracies, crimes, and offenses committed on the 
 said parts of Ciiesapeake Bay and Pocomoke River, by persons not citizens of 
 either state, against persons not citizens of either state, shall be tried in the 
 court of the commonwealth of Virginia having legal cognizance of such offenses."' 
 
 If Maryland's holding down to Cedar Straits had been adverse and avcjwed, 
 and she had maintained her undoubted right to that point as the Watkins' 
 Point of her charter, it is hard to understand why she would have made or 
 agreed to a provision which substantially admitted that the Wat/dns' Point of 
 the charter was doubtful. There could have been no doubt about it if Mary- 
 land had maintained and Virginia had admitted that "Cedar Strait'" was the 
 
House Doc. JNTo. 6. 59 
 
 clmrtev jmni. Time does riot run against the commonwealth any more than it 
 does against the king. When the holding was either doubtful or subject to 
 future adj ustment it is clearly excluded from all principles under which title 
 by possession can be acquired from a sovereign: The language of that section 
 clearly concedes a doubt by both states, both on the Chesapeake Bay and Po- 
 comoke River, which neither desired to secure any advantage from over the 
 other, by reason of accidental possession, as all their future legislation on the 
 subject shows. That uncertainty and doubt became more serious as population 
 grew more dense and the trade in oysters became the subject of state regula- 
 tion and taxation. 
 
 The case of the *' Fashion " is a prominent example, which need not be re- 
 peated. It illustrates this branch of the case very clearly. 
 
 I will not prolong this already too prolix statement by noticing any of the 
 old acts of the states after the adoption of the constitution. Those of recent 
 date make the question clear, both as to the doubt regarding the true line and 
 the friendly character of the holding by either of whatever might be found to 
 belong to the other. On the 29th of March, 1852, the legislature of Maryland 
 passed an act which recites that "the true location of that part of the line 
 separating the state of Virginia from Maryland, intervening between Smithes 
 Point at the mouth of the Potomac River and the Atlantic Ocean, has from lapse of time 
 become uncertain, thereby involving innocent parties in difficulties to them irrem- 
 ediable, therefore Virginia is invited to appoint joint commissioners to entrace 
 that portion of the line and to mark the same by the erection of suitable mon- 
 uments at proper points." For some unexplained reason Virginia did not ac- 
 cept this invitation until 1858. Under these acts Messrs. Lee and McDonald 
 were appointed by their respective states to entrace and mark the doubtful (kivi- 
 sional line on the eastern shoi'e. Lieutenant Michler's survey and report is 
 part of their work. Their report and Michler's were referred by the legis- 
 lature of Maryland to a select committee, which made a report, saying that 
 the committee ^did not find the uncertainties described in chapter 60 to be 
 existing in the boundary betw een Smith's Point at the mouth of Potomac 
 River and the Atlantic ;" and they say " it appears that the commissioners of 
 1668 established and marked the whole boundary across the peninsula or Cher- 
 sonese by a line between Pocomoke River and the marsh of the seaside, begin- 
 ning therefor on the Pocomoke River, east by compass from the extremest 
 point of the locsterninost angle of said Watkins' Point, as by thein defined ;" 
 '^ and that consequent upon this action of tlie commissioners, the divisional 
 line aci'oss the bay was and is now known and recognized to be a line from 
 Smith's Point, at the mouth of the Potomac, to this same westernmost angle of 
 Watkins' Point, and these are the true limits of this state to the south and 
 west." And they reported a bill accordingly; but it was amended in its pas- 
 sage by strikin g out "westernmost" and inserting "southernmost," as descrip- 
 tive of the line from Smith's Point across the Bay. 
 
 The committee reported the true state of facts, as Michler's report shows, but 
 the legislature changed it. No reason was shown for the change, so far as I 
 have been able to ascertain. The committee's report was unanimous, and its 
 conclusions after examination are entitled to full consideration, notwithstand- 
 
60 House Doc. No. 6. 
 
 ing the action of the House, which cannot usually examine all the facts as well 
 as a committee. However that may be, the action taken by the state since the 
 comijact of 1785, was entered into, confirms the admission therein made and 
 assumed, that the divisional line across the Eastern Shore was doubtful, neither 
 asserting a positive claim to any fixed initial point, nor claiming, as against the 
 other, anything either might happen to hold by mistake as to their rights. 
 
 The difference between the Maryland legislature and its committee, illustrates 
 how honestly these differences of opinion might exist. Their action proves 
 further that both agreed that the true line was the line of Calvert and Scarbo- 
 rough. They did not by their legislation undertake to establish a new line ; 
 they only proposed to retrace and mark an old one. As there never had been 
 any other run or attempted to be run except that established in 1668 by Calvert 
 and Scarborough, of course that was what they both agreed should be the boun- 
 dary between them when ascertained, regardless of any encroachments by one 
 or the other while ignorant of their rights. 
 
 The acts of the states appointing this commission, are framed in the same 
 spirit, and guard the rights of their citizens against any injui-y which might 
 otherwise follow by reason of the mistakes by possession growing out of the un- 
 certainty as to the true divisional line. The proviso referred to is as follows: 
 
 " Provided, hovjever, That neither of the said states, nor the citizens thereof 
 shall, by the decision of the said arbitrators, be deprived of any of the rights 
 and i^rivileges enumerated and set forth in the compact between them, entered 
 into in the year seventeen hundred and eighty-five, but that the same shall re- 
 main to and be enjoyed by said states and the citizens thereof forever; and pro- 
 vided further, that the landholders on either side of the line of boundary be- 
 tween the said states, as the same may be ascertained and determined by the 
 said award, shall in no manner be disturbed thereby in their title to and posses- 
 sion of their lands as they may be at the date of said award, but shall in any 
 case hold and possess the same as if their said title and 2iossession had been de- 
 rived tinder the laws of the state in which by the fixing of the said line by the 
 terms of the said award, they may be ascertained to be." 
 
 It would unquestionably be better that the small strip of countiy west of the 
 Pocomoke river, and south of the Calvert and Scarborough line, should be trans- 
 ferred to Maryland. But I am unable to see, from the view I take of the action 
 of the commissioners in 1668, and the subsequent action of the two colonies 
 and states, how T can find the facts to be otherwise than as set forth in the fore- 
 going statement. 
 
 In order to illustrate more clearly where I think the true line runs than I can 
 do by description, I have procured two copies of the map of Thomas I. Lee, the 
 Maryland commissioner of 1860, and have protracted his line of Calvert and 
 Scarburg froiji the Pocomoke river to Watkins' Point on the Chesapeake, thence 
 over Smith's Island, and from the western side of that Island. I have drawn a 
 straight line to Smith's Point; I have also marked in red ink, with substantial 
 accuracy, the line agreed on by the other arbitrators, so that a map may be de- 
 livered to each state as part of my view of the case. I do not jiretend that the 
 charter line runs from Watkins' Point west over Smith's Island; and it is well 
 known that Smith's Point, at the mouth of the Potomac, is not the charter 
 point from which its closing line starts to cross the bay. That line was a straight 
 
House Doc. No. 6. 61 
 
 one from "Cinquack," which was somewhere about six miles south of Smith's 
 Point to Watkins' Point, on the Eastern Shore. "Cinquack" seems to have 
 been abandoned long ago, certainly as early as 1785, when the compact was en- 
 tered into, and the east and west line was by the- action of Lord Baltimore and 
 the governor of Virginia, protracted from the "Watkins' Point" of Calvert and 
 Scarburg as early as 1667 and 1682, as an equitable division of an outlying and 
 for a time neglected island. 
 
 JAMES B. BECK, of Keniuchj. 
 
 Note. — The copy transmitted to the House of Delegates of Virginia, and by 
 it furnished to its printer, was printed, and he has followed the spelling, punc- 
 tuation, &c., verbatim.