X- 
 
 OPIMOXS AND AWARD OF ARBITRATORS 
 
 OF WASHWi- 
 
 MARYLAND @ VIRGINIA 
 
 BOUNDARY LINE. 
 
 M (.ILL & WITHEROW, HHINTERS, WASHINGTON, D. C. 
 

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 consented to do this in 
 the capacity of arbitrators, we are about to make our award. 
 
 To examine the voluminous evidence, historical, docu- 
 mentary, and oral; to hear with due attention the able and 
 elaborate arguments of counsel on both sides, and to con- 
 fer 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 indus- 
 try, the talent, the wise judgment, and the scrupulous in- 
 tegrity upon which we had relied so much. Thought 
 these high qualities were fully supplied by his distin- 
 guished successor, the vacancy occurring when it did, set 
 back our proce,edings 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 differences of opin- 
 ion, grown inveterate by centuries of hostile discussion, 
 made some explanation of our judgment desirable, if not 
 necessary. 
 
 The charter of Charles I to Cecilius, Baron of Baltimore, 
 dated June 20th, 1G32, 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, proprietory as well as politi- 
 
cal, became vested in the State of Maryland at the Revo- 
 lution. 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 propertj^, jurisdiction, 
 and government over territories contained within the char- 
 ters of Maryland and other adjoining colonies. The force 
 of this solemn acknowledgment is not, in our opinion, 
 diminished by the dissatisfaction 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 Baltimore, 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 
 assigned to Maryland by that instrument. By what lines 
 was the colony ot Maryland divided from those other pos- 
 sessions of the British Crown to which A'^irginia 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 Ofiice is 
 produced. It is written in the law Latin of the period to 
 which it belongs, and many of the words are abbreviated. 
 Another copy nearly, if not exactly, like that from the Rolls, 
 was deposited in tlie Colonial Ofiice, 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, 
 which, according to the same allegation, was borrowed 
 from a member of the Calvert family for that purpose. 
 We reject this whole story as apocryphal. The interline- 
 
ations were unauthorized except b}' the judgment of the 
 person who wrote them that lie was supplying elipsea 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 pre- 
 sumption 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 
 tact that abbreviated words ar(^ found in the registry. 
 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 in all legal papers and records as long as the law 
 spoke Latin. A deed in which these abbreviations oc- 
 curred was not thereby vitiated. What was the harm of 
 writing A. D. for armo domini, fi. fa. for Jieri facias, or ca. 
 sa. for capias ad satisfaciendum? Jrlered. ei assignat. was 
 as good as heredibus ei assignatus suis, if all legists under- 
 stood that one as well as the other was a limitation of the 
 fee to heirs and assigns. Adjectives and substantives 
 without terminations to indicate gender, number, or case 
 did not lose their meaning, and the omission of the con- 
 cluding syllable might be some advantage to a conveyancer 
 wlio was rusty in his syntax. This habit of contracting 
 words pervades, not only the deeds, but the criminal plead- 
 ings of that time. A public accuser, doubtful if the oft'ense 
 he was prosecuting violated two acts of Parliament or only 
 one, charged it as contra formam siaiut., and read the last 
 word statuti or statutorum, as the state of the case might 
 require. The defendant's averment of his innocence was 
 recorded as a plea of 7ion cul. When the Attorney Gen- 
 eral 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 — cul. 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 intelligibly written — sus. per col. 
 We are satisfied that the office copy is true; that it is 
 
exactly like the original; and that the use of abbreviated 
 words does not impair the validity of the instrument. 
 Moreover, that part of the charter which defines the bound- 
 aries of the province speaks, not equivocally, but in terms 
 so clear and apt that the 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 understood by the King and Lord Balti- 
 more 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 Mans- 
 field,) or by some equity pleader under his immediate 
 direction, avers in substance that Charles I and the min- 
 isters whom he consulted on Lord Baltimore's application 
 had the map of Capt. 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 map was the only delineation then extant of 
 that region, and his History of Virginia, to which the map 
 was prefixed, had been before, and continued for a long 
 time afterwards, to be the only source of information con- 
 cerning its geography. Besides, a comparison of the 
 map with the charter will show by the similarity of names, 
 spelling, &c., that one must have been taken from the 
 other. 
 
 The editions of Smith's History, published by himself in 
 1612 and 1629, have been produced, with the map thereto 
 prefixed. Besides, we have one printed in 1819 by au- 
 thority of Virginia from the same plate used by Smith 
 himself two hundred years before, and found, by a curious 
 accident, in a promiscuous heap of old metal which had 
 been imported from England to some town in Pennsyl- 
 vania. 
 
With tlie cliarter 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 marvellous produc- 
 tion, considering how and when it was made, is not per- 
 fectly correct. Smith could not see and measure every- 
 thing 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 inaccuracies 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 smidl 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 n(nv popularly known 
 by the names he gave them. Not only the names, but the 
 places themselves have been much changed. Consider- 
 able 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 whicii 
 the subject was handled in colonial days, an<l 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. 
 
 The 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 tlie Delaware Bay, 
 to the fortieth degree of latitude; thence westward along 
 that degree to the longitude of tlie headwater of the Poto- 
 mac; thence southward to that river, and by it, or one of 
 
6 
 
 its banks, to Cinqnack on the Chesapeake, and from Cin- 
 quack 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 Maryland 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 authorities, 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 own 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 within 
 the limits of the grant to Lord Baltimore. 
 
 When 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 mid- 
 way between them. But a river may be included or ex- 
 cluded, 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 author- 
 ity. But it was well illustrated by the Supreme Court of 
 the United States, in the case of IngerBoll v. Howard, (13 
 
 1&; 
 
How., 381.) Alabama claimed to the middle of the Chat- 
 ahoochee by virtue of a boundary described in a concession 
 from Georgia thus : " Beginning on the loesiern bank of the 
 Chatahoochee river, where the same crosses the boundary 
 line between the United States and Spain ; running thence 
 up the said river and along the western bank thereof," &c. 
 The court held that these words established the line of 
 boundary upon the western bank. There is some resem- 
 blance between that case and tiie one under considera- 
 tion. 
 
 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 ascertained, it shall turn 
 at right angles and run towards (literally against) the 
 south — " vergendo versus meridiem " — where ? " ad idierioram 
 predicti jluminis ripam" — to the further bauk of the afore- 
 said river. Approaching the river from the north, the 
 further bank is the south bank of course. The description 
 proceeds, without a pause, thus : " et earn sequendo quaj)laga 
 occidenialis ad meridionalem spectat usque ad locum quendani 
 appellatum Cinquack." Now, the words " eam sequendo " 
 are a direction 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 Cin- 
 quack, which is on the same side of the river, near to its 
 mouth. What shall we follow ? Clearly earn inpam and 
 clearly not id fiamen, 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 vernacular tongue. We would naturally 
 expect to see the thought of these parties expressed by 
 words arranged in the English order, thus: ad idierioreni 
 ripam predicti fluminis et sequendo eam. The other and 
 more classical collocation was not adopted for its euphony, 
 but for the sake of precision. It brought ripam and eam 
 into close juxtaposition, and made the antecession so im- 
 mediate that it could not be mistaken. The interjected 
 phrase, " qua plaga occidentalis ad meridionalem spectat," 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 as- 
 pect 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 improbable that the two termini of this line should 
 both have been fixed on the south side of the river with- 
 out 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 Ingersoll v. Howard. 
 
 For these reasons we conclude that the charter line was 
 on the right bank of the Potomac, where the high-water 
 mark is impressed upon it, and that line follows the bank 
 along the v/hole course of the river, from its first fountain 
 to its mouth and " usque ad locum, quendam appellatum- Cin- 
 quack.'^ 
 
 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 memor3^ of living men. Neverthe- 
 less, the place where it once was can be easil}-^ found. The 
 charter describes it as '■* prope Jiujninis 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 chosen as the terminus of 
 the long river line, because it was the only place near the 
 mouth of the Potomac, on that side, to wdiich Smith's map 
 gave a name; and it furnishes one among many circum- 
 stantial 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 Wat- 
 kins' Point, the other runs from VVatkins' Point due east 
 
9 
 
 to the sea shore. There will be no possible mistake about 
 these lines if we can but find out the precise situation of 
 Watkins' P'oint. 
 
 *This point being the con\niencenicnt 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 ^^JKxia sinum predicium prope Jiumen de Wighco; " that 
 is to say, on (or close to) the aforesaid bay (the Chesapeake) 
 and near the river Wighco. Looking at Smith's map we 
 find a cape extending southwestwardly from the main- 
 land 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 Chesapeack Bay, and on the other 
 Wighco fiitmen. Turning to the modern maps, and especi- 
 ally to those of the Coast Survey, where everything is 
 measured with fractional accuracy, we tind the same point 
 of land laid down, not quite in the same latitute nor de- 
 lineated 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 tlie 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 prem- 
 ises 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 
 o 
 
10 
 
 Baltimore showed how lie mideratood it. In 1635, only 
 three j^ears after the date of his charter, he printed what 
 he called a "Relation of Maryland," and prelixed to it a 
 map on which Watkins' Point is hiid down at Cedar Straits, 
 with the beginning and closing lines of his boundary run- 
 ning from and to it. It is not likely that lie could be mis- 
 taken, nor is it supposed that he fraudulently misstated the 
 fact, and he was not contradicted by the ministers of tlie 
 Crown or by anybody interested in the Virginia planta- 
 tion. 
 
 In 1670 Augustin Herrman, the Bohemian, published a 
 map fuller than the previous ones, and there we have Wat- 
 kins' Point at Cedar Straits very conspicuously 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 Cal- 
 vert and Scarborough on 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 the ocean so over- 
 ruling, 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 the publishers to the Lords Commissioners of Trade 
 and Plantations, we find Watkins' Point unmistakably 
 laid down at the mouth of the Pocomoke, with the Scar- 
 borough and Calvert line from the sea to the Pocomoke 
 ' so drawn that a westward extension of it would strike 
 exactly or very nearly that place. 
 
 Mr. Thomas Jefferson published his Notes on AHrginia 
 in 1787, with a map, on which the strongly-marked bound- 
 ary 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 
 
11 
 
 the situation of Watkins' roint. So do several others of 
 the iast 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 cgti- 
 turies and a half have understood Sniith's map as calling 
 what is now the Southern extremity of Somerset County 
 Watkins' Point; nor is it known otherwise in the general 
 speech of the country. Smith's designation lias adhered 
 to it through all changes. If that be ni t its true name, it 
 never had any name at all. 
 
 But tlie fact rests on stronger proof than that. It is 
 established by the uniform 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. East- 
 ward and Westward, where the lines were invisible, both 
 parties made mistakes. But Watkins' Point or the terri- 
 tory near it was not debatable ground. All men, except 
 perhaps Col. 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 emi- 
 nent 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 Wat- 
 kins' Point was the boundary mark to which the line from 
 the Western shore should run; and they described its 
 situation very unequivocally when they spoke of it as 
 "Watkins' Point, near the mouth of the Pocomoke river" 
 Remembering that 'this compact was drawn 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 regarded as of such 
 sacred obligation that all power to touch it is withheld 
 from us, we feel ourselves literally unable to fix the Wat- 
 kins' 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 'pro^.iovtov)/, 
 
12 
 
 M^liich imyilies liigli land, whereas this is a dead level, rising 
 but slightly above the waters oti either side. That argu- 
 ment is easily disposed of. The map did not indicate 
 whether tlie 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 "« prom- 
 ontorio sive capite terr^ vocaio Watkins' Point ; " from 
 the promontory or headland. The same abundant caution 
 is observed again when the point comes to be mentioned 
 as the terminus of the closing line, which is required to run 
 ^^jper lineam, brevissimam usque ad predicium promontorium 
 SIVE LOCUM vocaium Watkins' Point." Thus the controlling 
 call of the charter is for Watkins' Point, by its given name, 
 whether it be a high promontory or a low headland, or 
 merely a place whose character is not properly signified by 
 either word. 
 
 We proceed to another objection. Smith, in his account 
 of the explorations made by hiniself and others with him, 
 says, in effect, 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, English- 
 meu had been there." Now there are not, and probably 
 never were, trees capable of being so marked on the Wat- 
 kins' Point which lies at Cedar Straits; therefore it is ar- 
 gued that Watkins' Point is not Watkins' Point. Those 
 who think this deduction legitimate would remove the 
 point in question from the place where Smith puts it on 
 his map, where all geographers have placed it, where the 
 charter describes it to be, and where by the general con- 
 sent 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 Watkins' 
 Point of the charter. There is (or rather there was) a point 
 there of con^:;iderable ma<i;nitude and some elevation, which 
 
13 
 
 lias now entirely disappeai'ed. kSniitli noted it as a trian- 
 gular extension of the mainland into the bay; in 1665 per- 
 sons, who liad then recently seen it, described it as "a small 
 spiral point," whatever that may mean; and later evidence 
 shows that there was a peach 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 Capt. Smith's 
 map without a name." Why should we supjjose 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. Russell, who was with him when he made his ex- 
 plorations, says that it was called Point Ployer, " in honour 
 of that most honorable house of Monsay, in Brittaine, that 
 in an extreme extremity once relieved our Captaine." Can 
 anything be more complete than the failure of this effort to 
 substitute the place called Point Ployer for the place called 
 Watkins' Point? 
 
 l>ut it is said that Scarborough and Calvert agreed in 
 1668 that the line from the sea should run to the Anna- 
 messex, and not to the Pocomoke. That is not the point 
 of the present question. We are now inquiring where the 
 boundaries were originally fixed. A conventional arrange- 
 ment 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 was 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 thought 
 that the charter limit was at Point Ployer, he was grossly 
 deceived, and Col. Scarborough knew very well that it was 
 not there, for he had previously declared on his corporal 
 oath that the "small spiral point" 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 which dohn Tyler, a Marylander, was 
 
14 
 
 owner and master, was arrested for dredging in Marjdand 
 waters. The justice of the peace before whom the pro- 
 ceeding 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 
 Hammock, and over the Buy to the mouth of the Anna- 
 messex, which would throw the locus in quo of the ofiense 
 within the jurisdiction of Virginia. If we assume that the 
 issue, the evidence, and the legal reasons of the judgment, 
 are correctly 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 pro- 
 duced to us at second hand. We do not understand that 
 anybody supposes the judgment itself to be binding as a 
 determination of the subject-matter between the two States. 
 The traditionary line of Tyler's grandfather and old Mr- 
 Lavvson must stand or fall by the natural strength of the 
 facts which support and oppose it. Now it is perfectly 
 ascertained that Virginia in 1851 did not pretend ro 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, 
 considered as evidence of a line at Annamessex, is illegal, 
 insufficient, and unsatisfactory, 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 
 
15 
 
 as fixed and agreed by the Kino; and Lord Baltimore rnnH 
 from CiuQLiack bv a strais'ht line to the extreme soutii- 
 western part of Somerset count}', Maryland, which we lind 
 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 so- 
 ever 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 possession, uninterrupted and undisputed, 
 is made a rule of property between individuals b}' tlu; law 
 of nature and the municipal code of every civilized coun- 
 try. It ought to take place between independent States, 
 and according to all authority it does. There is a supreme 
 necessity for applying it to the dealings of nations with one 
 another. Their safety, the tranquility ot" their peoples, 
 and tlie general interests of the human race do not allow 
 that their territorial rights should remain uncertain, sub- 
 ject 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 PufFendorf and Uiitherforth.) 
 The length of time which creates a right bj- prescription in 
 a private party raises a presumption in favor of a State, 
 that is to say, twenty years. (Knapp's Rep., 60 to 73.) 
 It is scarcely necessary to add that the exercise of a privi- 
 lege, the perception of a profit, or the enjoyment of what 
 the common law calls an easement, has the same efiect 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 modi- 
 fied 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 
 
16 
 
 1776, when she surrendered other claims within tlie churter 
 limits of Maryland; but on the contrary, she expressly re- 
 served " the property of the Virginia shores or strands 
 bordering on either of said rivers, (Potomac and Poco- 
 raoke,) 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 respect- 
 ively shall have full property on the shores of Potomac 
 and adjoining their lands, with all emoluments and advan- 
 tages thereunto belonging, and the privilege of making and 
 carrying out wharves and other improvements." We are 
 not authority for the construction of this compact, because 
 nothing which concerns it is submitted to us ; but we can- 
 not help being influenced by our conviction (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 
 proprietory right on the south shore to low water-mark, and, 
 appurtenant thereto, has a privilege to erect any structures 
 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 eo clearly as to make them indisputable. Her efforts 
 to show that she acquired, or that Maryland 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 proved that in 1685 the King 
 and Privy Council determined to issue a Quo Warranto 
 against the Proprietary 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 pre- 
 tended right to the whole river of Potowmack" 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 
 
17 
 
 tlie then Lord Baltimore was not in fuvor with the ministry 
 of James II. 
 
 Wliat is called the llopton grant was confirmed to the 
 Earl of St. Albans and others in 1667 by Charles II. It 
 included all the land between the Rappahanock and the 
 Potomac, together with the islands within 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 Common- 
 wealth 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, proprio vigore, transfer the 
 title of the Potomac islands from Lord Baltimore to the 
 Earl of St. Albans ; but it is argued that, as Lord Balti- 
 more must have known of it, and did not protest or take 
 any measure to have it cancelled, his silence, if not con- 
 clusive 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. We 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 subse- 
 quent possession of the islands was the most emphatic 
 contradiction he could give to any adverse claim, or pre- 
 tense of claim, under the Hopton grant. 
 
 But these conflicting grants of the islands increased 
 the importance of knowing 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 satisfactorily 
 that Maryland liad granted all the islands, taxed the 
 owners, and otherwise exercised proprietary and political 
 dominion over them. Three Virginia grants were pro- 
 duced 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 
 3 
 
18 
 
 the other two are called islands only because they He 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 bo-undary 
 between the States. 
 
 It being thus shown that there is nothing to deflect the 
 line from the low-water mark, we are next to see whether 
 its eastern terminus has been changed. That it certainly 
 has. Cinquack was quietly ignored so long ago that no 
 recollection, 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, precisely 
 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 Watkins' Point. It holds a course far 
 north of that, so as to strike Sassafras Hammock, on the 
 western shore of Smith's Island, and take in Virginia's old 
 possession 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 
 necessary 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, nobod}' 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 con- 
 jectures were amazingly wild. The people 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 Siiore, nearlv twelve miles south of a true east 
 
19 
 
 Sine from Watkins' Point. Sir John Harvey, tlicn Gov- 
 ernor and Captain-General of Virginia, with the advice of 
 the council, conceded the claim, and on the 14th of Octo- 
 ber, 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 fraudu- 
 lent collusion between the Governor of Virginia and the 
 agents of the Maryland proprietary. It was a mutual mis- 
 take — a very gross one to be sure — and not long persisted 
 in. It serves now only to show how loose were the notions 
 of that time about these lines. 
 
 Soon after tiiis (but tlie 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 Vir- 
 ginia 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 situation of that island being 
 misapprehended, Virginia took quiet and unopposed pos- 
 session upon it, and holds a large part of it to this day, 
 
 No wilful transgression of the charter boundary took 
 place before 1664. Then rose Col. Edmond Scarborough, 
 the King's Surveyor General of Virginia. His remarkable 
 ability and boldness made him a power in Virginia, and 
 gave him great mental ascendency wherever he went. He 
 had no respect for Lord Baltimore'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 safety," 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 Proprie- 
 tory and harried the defenseless 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 Man- 
 oakin, authorizes the Surveyor General to make publi- 
 cation commanding all persons south of Watkins' Point to 
 render obedience to His Majesty's Govornmcnt of Virginia, 
 
20 
 
 and requiring Col. Scarborough, vvitli Mr. John Catlett 
 and Mr. John Lawrence, or one of them, to meet the 
 Maryland authorities upon due notice, (if they were not 
 fully convinced of their intrusions,) and debate and determ- 
 ine 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 Man- 
 oakin, he put in his own affidavit and that of seven others 
 that the place described in Capt. Smith's map for Wat- 
 kins' Point, was not at the Pocomoke nor at the Annames- 
 sex, 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 
 V/ighco. This was sworn to in the very face of the map 
 itself, where Watkins's Point was described as lying on the 
 Poccfraoke, and where the Pocomoke was distinctly named 
 the Wighco. 
 
 In June, 1664, Charles Calvert, Lieutenant Governor of 
 Maryland, sent Philip, the Chancellor, on a special mission 
 to Sir William Berkeley, then Governor of Virginia, to de- 
 mand justice upon Scarborough for entering the Province 
 of Maryland in a hostile manner, for outraging the inhab- 
 itants of Annamessex and Manoakin by blows and impris- 
 onment, for attempting to mark a boundary thirty miles 
 north of Watkins' Point, and for publishing a proclama- 
 tion at Manoakin wholly unauthorized. Col. Scarborough 
 was too great a man to be punished, but his acts were re- 
 pudiated, the claim for his spurious boundary was disa- 
 vowed, Watkins' Point was again fully acknowledged to 
 be where it always had been, and so the laud 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 iiis friends. The necessitv was manifest 
 
21 
 
 for having the true line traced and marked on the ground 
 between Watkins' Point and the sea. To do this Colonel 
 Scarborough was appointed a commissioner on one side, 
 and Philip Calvert on the other. But, instead of closing 
 the controversy as their respective constituents intended, 
 tbeir work was done so imperfectly that it has been a 
 principal cause of error and misunderstanding ever since. 
 Their instructions, as recited by themselves, required 
 them to "meet upon the place called Watkins" Point." 
 That they did meet 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 
 aide 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 Poco- 
 moke river, to the land near Robert Ilolston's, and there 
 have marked certain trees which are continued by an east 
 line to the sea," k,c.; and they agreed that this should be 
 received 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 con- 
 cluded to be Watkins' Point? Not the whole body of the 
 territory between the Annamessex and the Pocomoke. 
 jSTobody understands it in that way. Not Prtint Ployer; for 
 they both knew, and one of them swore, it was not there. 
 Did the}' actually run any line west of the Pocomoke? If 
 yes, they must have known with perfect 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 ba^'s? If it was 
 then ascertained by actual demonstration with the com- 
 pass 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? Wh}' 
 was it never recognized, acknowledged, or claimed by 
 
22 
 
 either party afterwards? Our rendering may seem a strain 
 upon tlie words, but we infer from the paper and the 
 known 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 con- 
 cluded that an east line running from Watkins' Point 
 would cross the Pocomoke at the place near Holston's, 
 where they marked certain trees. This being satisfactory 
 to themselves, they proceeded, without further prelimi- 
 nary, 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 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 westerniost 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. Herr- 
 man and all subsequent raapmakers 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 commissioners were appointed to ascer- 
 tain 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 geometrical proposition, it is undoubtedly 
 true. But mathematics cannot determine this ca-^e against 
 law and equity. 
 
 Their own description of the line they agreed upon is in- 
 consistent with itself. They call it an east line from Wat- 
 kins' Point, and give it an outcome by a course corres- 
 ponding with Holston's tree. If this be a straight line, 
 how shall we find it? If we begin at Watkins' Point and 
 
23 
 
 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 ter- 
 minus at that end. Yet by one way as much as by the 
 other, we follow the agreed line of the commissioners. 
 We reconcile these contradictions, and carry out the whole 
 agreement, 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 IIol- 
 ston's to the mouth of the Annamessex. If that was the 
 technical effect of the agreement it was instantly repudi- 
 ated by the common consent of both provinces. Maryland 
 had held before, and continued afterwards to hold and 
 possess, all the territory between the Pomoke and the Bay 
 down to the latitude of Watkins' Point, granting the lands, 
 taxing them in the hands of her grantees, and ruling all 
 the inhabitants according to her laws and customs. Her 
 jurisdiction was not intermitted, nor any of her rights sus- 
 pended, for a moment. Virginia never expressed a suspi- 
 cion that this possession 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 
 construction of his covenants with Calvert. 
 
 Our conclusion is that Virginia, by the agreement and 
 her undisturbed occupancy, 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, 
 
24 
 
 and counsel on both sides have, with Infinite labor, col- 
 lected a great volume of evidence on this part of the case, 
 and discussed it at much length. 
 
 In early times Virginia granted lands high up on the 
 island; and Maryland, without expressl}^ denj'ing 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 oc- 
 cupancy, like the titles, was mixed and doubtful. The 
 inhabitants did not know which province they belonged 
 to; 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 Ham- 
 mock was and is the true division. There is some evidence 
 that tiiis was once thought to be the boundary. 
 
 Two grants, one by Maryland and one by Virginia, each 
 calling for the divisional 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 vras understood to be the division be- 
 tween the provinces or the States. But this argument a 
 priori is all that supports the theor}' of a State line there. 
 If it ever was actually run, it cannot now be told by whom, 
 when, for w^hat purpose, by what authorit}', 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 divid- 
 
25 
 
 ing line of the States. But none of them can give any 
 substantial grounds for his belief. 
 
 Out of this contradictory evidence and above the ob- 
 scnrity 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 Vir- 
 ginia has claimed no higher. By that line alone both 
 States have limited their occupancy 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, obe\^ 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 in- 
 trusion 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 prescription, and the 
 boundary now to be determined must conform to those 
 possessions, no matter at what expense of change in the 
 original lines. We know therefore how 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 nppurienajit to the dry land, 
 4 
 
20 
 
 but Jis jjarl of it. One who owns hiiul to a river owns to 
 tlie middle of the channel. Upon the same principle, if 
 one State has the territory on both sides the whole river be- 
 longs to her. Nor docs it make any difference how large 
 or how small the body of water is. The Romans called 
 the Mediterranean Mare Nostrum, because her territory 
 surrounded it on all sides. This construction a[>piies with 
 equal certainty to every kind of title, whether it be acquired 
 by express concession, by lawful conquest, or by tlie long 
 continuance of a possession which, at first, may have been 
 but a naked tres[)ass. In the last case the silent derelic- 
 tion of the previous proi)rietor implies a grant of his whole 
 right as fully as if it had been given b^' solemn treaty. 
 
 A few observations upon the several sections of the 
 broken line which we ;idopt in place of the straight line of 
 the charter will sufiice to apply the principles 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 be- 
 tween 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 dvy land on the 
 opposite shore. 
 
 The south line dividing the waters stops where it inter- 
 sects the straight line from Smith's Point to Watkins' 
 Point, because this latter is the charter line, as modified 
 l»y the compact, and Maryland has no rights south of it. 
 
 From that point of intersection to Watkins' Point we 
 follow the stiaight line from Smith's Point, there being no 
 j)Ossession or agreement wdiich 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 
 
27 
 
 must be followed until it meets the middle thread of tlie 
 Pocomoke. At the place last mentione<l 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 territorj- on one side 
 belongs to Maryland and on the other to Virginia. 
 
 From the angle formed by the Scarborough and Calvert 
 line with the line last descrii>ed through the middle of the 
 Pocomoke, the boundary follows the marki'd line of Scar- 
 borough and Calvert to the seashore. 
 
 It will be readil}' perceived that we have no i'aith in any 
 straight-lij)e theory wliicli conflicts with the contracts of 
 the parties, or gives to one what the other has peaceably 
 and continuously occupied fora very long time. The broken 
 line which we have adopted is vindicated by cei'tain prin- 
 ciples so simple, so plain, and so just, that we are compelled 
 to adopt them. They are briefly as follows: 
 
 1. S(^ far as the original charter boundary has been uni- 
 formly observed and tiie occnpanc}' of both lias conformed 
 thereto, it must be recognized as the l)onndar_y still. 
 
 2. Whereever 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 
 territory within the State that has it. 
 
 3. Where any compact or agreement has changed the 
 charter line at a particular place, so as to make a new di- 
 vision of the territoi-y, such agreement is binding if it has 
 been followed by a corresponding occupancy. 
 
 4. But no agreement to transfer territory or change 
 boujidaries can count for anything now, if the actual pos- 
 session was never changed. Continued occupancy of the 
 granting State for centuries is conclusive proof that the 
 agreement was extinguished and the parties remitted to 
 their original rio^lits. 
 
 5. The waters are divided by the charter line where that 
 line has been ujidisturbed by the subsequent acts of the 
 parlies; but where accjiiisilions have been made by one 
 
28 
 
 from the other of territory bounded b}' 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 running east from Wat- 
 kins' 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 fairly made or else by 
 a long and undisturbed possession. Her right to this ter- 
 ritory, 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 anything which fairly or legally 
 belongs to the other; but in dividing the land and the 
 waters we have anxiously observed the Roman rule, saum 
 cuique tribuerc. 
 
 J. S. Black, 
 
 Pen?isylvania. 
 Chas. J. Jenkins, 
 Georgia. 
 A. W. Graham, 
 
 Secretary. 
 
AWARD. 
 
 And now, to wit, January 16, Anno Domini 1877, tlie 
 undersigned, being a majority of the arbitrator^ to whom 
 the States of Virginia and Maryland, by acts of their re- 
 spective Legislatures, submitted the controversies concern- 
 ing their territorial limits, with authority to ascertain and 
 determine the true line of boundary between them, jjaving 
 heard the allegations of the said States and examined the 
 proofs on both sides, do find, declare, award, ascertain, 
 and determine that the true line of boundary between the 
 said States, so far as they are conterminous with one an- 
 other, is as follows, to wit: 
 
 Beginning at the point on the Potomac river where the >i 
 line between Virginia and West Virginia strikes the said 
 river at low-water mark, and thence following the mean- 
 derings 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 longitude 76° 13' 46" ; thence crossing the 
 waters of the Chesapeake Bay, by aline running ISTorth 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"; thence 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 hundred 
 and eighty yards, to a point marked ">4 " on the accom- 
 panying map, in the middle of Tangier Sound, in latitude 
 37° 56' 42", longitude 75° 56' 23", said point l)earing from 
 Jane's Island light South 54° West, :in<l distant from that 
 
30 
 
 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 " _S " 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 thousand eight hun- 
 dred and eight}^ yards, to a point where it meets a line 
 running through the middle of Poconioke Sound, which 
 is marked "C" on the accompanying map, and is in 
 latitude 37° 54' 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 " i) " on the accom- 
 panying map, in latitude 37° 56' 25", longitude 75° 45' 
 26" ; thence following the middle of the Pocomoke river 
 by a line of irregular curves, as laid down on the accom- 
 panying 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 E*ocomoke 
 river and in latitude 37° 59' 37", longitude 75° 37' 04" ; 
 thence, by the Scarborough and Calvert line, which runs 
 5° 15' North of East, to the Atlantic Ocean. 
 
 The latitudes, longitudes, courses, and distances here 
 given have been measured upon the Coast Chart No. 33 of 
 the United States Coast Survey, (sheet No. 3, Chesapeake 
 Bay,) which is herewith filed as part of this award and 
 explanatory thereof. The original Charter-line is marked 
 upon the said map and shaded in blue. The present line 
 of Ixnindiirv, as ascertained and determined, is also marked 
 
81 
 
 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 award, the arbitrators 
 deem it proper to add that — 
 
 1. The measurements being taken and places fixed ac- 
 cording 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 con- 
 sidering arms, inlets, creeks, or affluents as parts of the 
 river, but measuring the shore lines from headland to 
 headland. 
 
 3. The low-water mark on the Potomac, to which Vir- 
 ginia 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 indenta- 
 tions, 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 Po- 
 tomac, but has a right to such use of the river beyond the 
 line of low-water mark as may be necessary to the full 
 enjoyment of her riparian ownership, wnthout 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, 
 A. W. Graham, Of Pennsylvania. 
 
 Secretary. Chas. J. Jenkins, 
 
 Of Georgia. 
 
OPINION OF JAMES B. BECK, OF KENTUCKY. 
 
 I agree with niy colloagnes in the coiiclusioti 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 Bal- 
 timore'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 
 circumstances before us, that the promontory at the ex- 
 treme Western angle of the body of land, called by Cal- 
 vert 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 
 tlie charter, and consequently the line of Calvert and Scar- 
 borough 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 jSTorthwestern sideof Poco- 
 moke 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, fol- 
 lowing 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. Bein^' 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, 
 a!id propose to give my reasons for declining to sign the 
 awai'd. 
 
34 
 
 The length of time which has elapsed, and the loss of 
 records which would have explained many of the trans- 
 actions, render it ditticult to speak with accnracy as to ac- 
 tions 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 this commission by the dis- 
 tinguished counsel for the States to test the truth of the 
 deductions and conclusions arrived at, makes an elaborate, 
 and it may be somewliat tedious, statement of the case 
 necessary to a proper understanding of it. 
 
 I shall not attempt to give my views a judicial appear- 
 ance, but rather set forth the reasons and arguments which 
 have impelled me to the conclusion I have reached. 
 
 By reference to the acts of the Legislatures of Maryland 
 and Virginia appointing 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 charter under which Maryland 
 claims, it must first be settled, as the closing line from the 
 mouth of the Potomac to the initial point cannot be de- 
 termined until the beginning point is ascertained. That 
 done, the closing line being " the shortest line " from the 
 West side of the Bay to the beginning, only requires 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 Cher- 
 sonese 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 promon- 
 tory 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 mathematical point which -^hall be 
 determined to be the Watkins' Point, from which the sur- 
 veyor should start the right line from the Chesapeake to 
 
35 
 
 the ocean. In reference to " Watkins' Point," several 
 things must be observed : First. It is described in the open- 
 ing 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 Web- 
 ster's Unabridged Dictionary a " Promontory " is tlius 
 described : " From iwo, before, and m<ms, mountain. 
 (Geofj.) A high point of land or rock projecting into the 
 the sea beyond the line of the coast ; a headhmd. It difl'ers 
 from a cape in denoting high land. A cajie ina}^ be a 
 similar projection of land, high or low. 'Like one who 
 stands upon a promontory,' " (Shak.) Second. It is situated 
 on Chesapeake Bay. Third. It was near (not upon or ne- 
 cessarily connected with) the river Wiglico. Fourth. The 
 line to be run from Watkins' Point on Chesapeake Bay 
 was to be a ^^ right" 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 de- 
 termining 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 mathematical point from which a line of survey should 
 be run. The history which the map was drawn to illus- 
 trate makes it conclusive that the marshy angle at Cedar 
 Straits could not be the " Watkins' Point" named by Cap- 
 tain 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 
 Patawoniack and Panuinnkce, after the names of the dis- 
 
36 
 
 coverers. In all these places antl the furthest we came 
 up the rivers we cut in trees so many crosses as we would, 
 and in many places made holes in trees, wherein we writ 
 notes, and in some places crosses of brasse, to signifie to 
 any, Enghshmen 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 Point 
 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 vi^ere. 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 Ciuquack 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 
 ex[)lain how Maryland became' entitled to it. It is not 
 contended that any land has l>een 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 Headlcmd on the Chesapeake Bay. 
 
 The Maryland Commissioners in their statement to this 
 
87 
 
 commission, pages 46 and 47, i^ive such a dl•^^eri{)lioll of 
 the character of the coast on each side of Cedar Straits jib 
 show that the point now determined to be Watkins' Point 
 by ray colleagues was not believed by them to be the 
 Walkins' Point 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 3'ou pass Tangier Island, thence (in- 
 cluding Fishbone and Heme Islands) extending as far 
 north as Fox Island is now. From the mouth of the Po- 
 comoke to Point Ploj^er at that time (1608) the coast was 
 low broken isles of marsh, and from Cedar S(7-ai(s to Jane's 
 Island such is nmo (he 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 brokeft islands of marsli, which 
 have long since been washed away, and some of them have 
 been submerged within the memor)- of living witnesses. 
 * * * The isles they called Liml)o wore evidently 
 those now known as Smith's Islands and Holland Islands. 
 And the only point of high land upon the main from Rus- 
 sels' (Tangier) Isles to Nanticoke river was that since 
 known as Jane's Island, which must have been tlie Point 
 Ployer of Smith's History." 
 
 The point at Cedar Straits never was called "Watkins' 
 Point" in any Patent or conveyance; it reuiained vacant 
 land till 1702, when it was granted by Lord Baltimore by 
 the name of'Plane's Harbor" to Isaac and Nathan Horsey. 
 The grant contained 407 acres; its bounds calls for " Cedar 
 Straits," but nowhere 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 
 IVom their " Watkins' Point" east according to the calls of 
 
38 
 
 Lord Baltimore's charter, which they admit calls for a 
 straight line from the Chesapeake Bay to the Atlantic* 
 They are obliged to meander along the Pocomoke Bay 
 and River more than four miles tiorth 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 tlie ocean, and to admit, Jirsi, that tlieir line w 7iot the 
 true charter line, and second, to claim that the Calvert and Scar- 
 burg line of 1668 is not the true Charter line, though they adop^ 
 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 the 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 Calvert and Scarburg; and when in addition 
 to this it is shown that, more than two hundred years ago, 
 Commissioners appointed by the highest authoritjMU Mary- 
 land 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 Straits at a point which has all the requirements of 
 the "Watkins' 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, conceding 
 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 w^hich 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, 
 from the Chesapeake Bay to the ocean, became the sub- 
 
89 
 
 ject of serious controversy between the colonies at a very 
 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 Scar- 
 burg, the Surveyor General of Virginia, 1668, all sorts of 
 extravagant claims were asserted on both sides — Lord Bal- 
 timore 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 "Rela- 
 tion of Maryland; " and Virginia, by the act of her Grand 
 Assembly of September 10, 1663, claiming up to Nanticoke 
 or Nanokin, many miles north of the " River Wighco" on 
 Smith's map. I repeat that there was no map of that 
 country in existence when Lord 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 Amer- 
 ica. The map accompanying Lord Baltimore's Relation 
 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 lie 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 
 Barae thing, it was perhaps natural that Lord Baltimore 
 should seek to extend his limits as 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, extending the Southern Point far into the Bay be- 
 yond 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 pai-t of Smith's maj) at 
 
40 
 
 least, and if he clniiiied from the Soutliern angle of the 
 Point instead of the Westernmost, would have dotted his 
 Southern line tlience 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. The King, after closing the grant to 
 him, had taken the precaution to say in tlie charter that it 
 was laid oft' "so that the whole tract of land divided by 
 the line aforesaid between the main Ocean and Watkins' 
 Point, unto the promontory called Cape Charles, may en- 
 tirely remain for ever excepted to us, our heirs and suc- 
 cessors forever." It must therefore have been obvious to 
 Lord Baltimore that he was attempting to take fr.om the 
 King a large amount ot property not granted to him when 
 he so drew his map as to extend his Southern Boundary 
 from the Chesapeake 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 Scarhurg as an adjustment of all disputes from the 
 Chesapeake Bay to the ocean, set up extravagant and un- 
 founded claims. Lord Baltimore obtained from Sir John 
 Harvey, (whose history is too well known to require fur- 
 trier comment than that he was hated and despised by the 
 people, whom he as cordially disliked,) after the banish- 
 ment and return of that Governor, a proclamation, dated 
 October 4, 1638, forbidding all citizens of Virginia from 
 trading " with the Lidians 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 hay of Chesapeake," * * 
 "without license first obtained for their so doing from the 
 Lord Baltimore, or his substitute," &c. 
 
 Onancock, as Sir John Harvey, and certainly as Lord 
 Baltimore knew, being from ten to fifteen miles south of 
 
41 
 
 what MaTvland now claims to bo the " Watkins' Point" 
 of the charter, and from eight to ten miles south of the 
 dotted line whicli Lord Baltimore had drawn east to the 
 ocean from the " VVatkins' Point," laid down by him on 
 the map of 1635, accompanying- his "■relation of Maiy- 
 land." Several streams of considerable magnitu<le, snch 
 as Chesconessex and Hunter's creek, were between Onan- 
 cock 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 knowl- 
 edge. Lord Baltimore, in a letter of instructions to his 
 Governor and Council, dated October 23, 1656, among 
 other things, ordered, "That thej' take special care that no 
 encroachments be made by any, upon any part of his lord- 
 ship's said provinces; for the better prevention whereof, 
 his lordship requires his said lieutenant and council to 
 cause (he bounds thereof to be kept in memory and notoriously 
 known,, especially the bounds between 31aryland and Virginia, 
 on that part of the conntry known there by the name of the 
 Eastern Shore; * * * and his lordship hath also, for 
 their direction therein, sent herewith a copy of a procla- 
 mation 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 proclamation bore date 4th October, 1638, 
 and, therein are described the bounds between Maryland and Vir- 
 ginia.^' This extreme claim of Lord Baltimore doubtless 
 induced the Maryland commissioners, in their statement 
 in 1872, to say that, "It may be foirly consirlered 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 unbroken 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 sin(;e become known as Watts' Tshind." 
 G 
 
42 
 
 So that neither Lord Baltimore in 1656, nor the Mary- 
 land Commissioners in 1872, claimed that the marshy 
 point, which is tlie sonthern point of Somerest county, on 
 the bay, is the true " Watkins' Point" of the charter to 
 Lord Baltin)ore. Surely Watkins' Point could not be at 
 one place at one time and at a difi'erent place at another. 
 Whatever was originally the true charter point is so now. 
 Our duty is to find it. All the best informed parties as- 
 sumed that it was not at Cedar straits. 
 
 I agree with them, thai it is not. As already stated, that 
 point has none of the elements of a pr onion tori/ or headland, 
 and was not resrarded bv Calvert and Scarburij as an- 
 swering 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 dic- 
 tatorial than Lord Baltimore in the assertion of her claim 
 to a line of division between herself and Maryland many 
 miles north of tlie line, finally agreed on i)y Calvert 
 and Scarburg. It is unnecessary to refer to her conduct 
 prior to 1663, as her action then illustrates fully what I 
 mean. On tlie 10th day of September, 1663, her grand 
 assembly passed an act " Commanding in his majesties 
 name all the inhabitants of the Eastern Shore of Va., 
 frem 'Watkins' Point,' Southward, to render obedience to 
 his majestie's Government of Va., and mal^e payment of his 
 majesties rents and all public dues to his majesties colony 
 ofVa. And whereas, it has been controverted by some 
 ignorant or ill-disposed persons, where 'Watkins' Point,' 
 the Lord Baltimore southernmost bounds on the Eastern 
 Shore is situate. This Grand Assembly 'by the care and 
 special inquiry of five able selected Surveyors and two Bur- 
 gesses, and the due examination thereof, conclude the same 
 place of Watkins' Point to be the North side of Wicococom- 
 mico River, on the Eastern Shore, and near unto and on 
 the South side of the Straight Lymbo, opposite the Pa- 
 tuxent river, which place, according to Capt, John Smith, 
 and discoverers with him in the j-ear 1608, was so named, 
 being the Lord Baltimore's bounds on the Eastern Shore, 
 
43 
 
 within which bounds his majestios subjects that are now 
 seated, are hereby conimantled to yield due obedience at 
 their perils." 
 
 Col. Edtuund Scarbur-:: and two others were appointed 
 to confer with the Md. authorities, and in tiie meantime 
 "all inhabitants on the Eastern Shore as aforesaid, are re- 
 quired in his majesties name to conform due obedience to 
 this act of asseml)l3^" 
 
 Acting or assuining to act under tlie orders so given by 
 the grand assembly of Virginia, Col. Scarburg, in October, 
 1G68, taking with him about forty horsemen '' for pomp and 
 safety,'' went to Annamesseks and Manoaken, and pro- 
 ceeded iti the most arbitrary manner to take possession of 
 the country up to Manoakin, and to require all the inhabi- 
 tants to " subscribe obedience" to his majesty according to 
 the Va. 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 be 
 Lord Baltimore's southern 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 tlie other places to 
 Onancock, to which it was answered that whilst the erro- 
 neous Proclamation was uncontroled that declares Onan- 
 cock to be Maryland's Southern Bounds, it might be so 
 received. But since occasion made the Government of 
 Virginia not oidy 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 pi ice ; therefore they need not trouble them- 
 selves therein, for the question appertained to higher pow- 
 ers and above private men's controverting." In order to 
 sustain the claim of Virginia, the Couit o[' Accomac 
 County, seven Justices of the Peace present, on the lOlh 
 
44 
 
 (]ny of November, 1663, alter a long preamble setting forth 
 the disobedience of certain rebellious Quakers and other 
 factions people about Manoakin, who refused to conform to 
 the act of Assembly of Virginia, ordered certain oflicers 
 to call together His Majesty's good subjects from Manoakin 
 t'» Pocomoke river; to arm themselves, and if necessary, 
 protect the people, alid 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 ap}:)arently respectable gentlemen appeared 
 before the Court of Accoraac and made oath that the Po- 
 comoke 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 sinral point on the south side of Annemessecks, and 
 that point is to the southward of the place described in 
 Capt. John Smith's map for Watkins' Point, so far as a 
 man can see 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 body of land on which they after- 
 wards determined the initial point of the opening line of the 
 charter on the Chesapeake to be, tiie point Dr. Russell says 
 they called Point Ployer in all probability, but to which, 
 in my opinion, Smith in his history and map gives the 
 name of Watkms' 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 op- 
 posite Patuxent river, which Virginia was asserting with 
 such pertinacity to be the Watkins' Point of Lord Balti- 
 more'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 Virginia any trouble in 
 
45 
 
 rnaiiitaiiiing her extreme claim. Lord J'altimore's claim 
 to Oiuincock was too extreme to be dangerous ; but she 
 had to fortify herself against Maryland's withdrawal fiom 
 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 Mary- 
 land, demanding that point as the true Watkins' Point of 
 her charter; for it will be observed that it was made after 
 Governor Calvert's visit Sir to Wm. Berklc}- 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 Straits 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 manner. Lord 
 Baltimore protested at once against tlie arbitrary conduct 
 of Scarborough, and demanded "Justice against the said 
 Edmund Scarbui-gh for entering into tliis province, in a 
 hostile manner, in October last, and by blows and im- 
 prisonment outraging the inhabitants of Manoakin and 
 Annamessex." 
 
 Governor Calvert, in the early part of the year 1664, vis- 
 ited Governor Berkley in person, as shown by his procla- 
 mation dated June 3d, 1664, in which, after speaking of 
 the outrages committed by Scarborougli on his people, he 
 says, "And whereupon remonstrance of this undue i)ro- 
 ceeding to the lion. Sir William Berkeley, b}j riDjself in. per- 
 son, he did not only disclaim any order from him to the 
 said Scarburg alone, or before notice given and debate 
 had, touching the point in difference, to proceed i)^' 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 com'rs 
 as should by me be appointed," &c. After stating the fail- 
 ure of these commissioners to ineet, tlie Governor |)ro- 
 ceeds : "And to show how wc are not to be tired out of our 
 
46 
 
 desires of foir correspondence with the Hon. Gov. tf Council 
 of Fa., I have constituted, ordained, appointed, and era- 
 powered Philip Calvert, Esq., Deputy lieutenant and chan- 
 cellor of this province, to repair to the Hon. Sir Wra. 
 Berkley, Gov. of Va., and the council there, and after 
 delivering of a duplicate of these presents, and to treat 
 and determine the said differences concerning ' Watkins' 
 Point.' * * * Whereof I desire that the said Philip 
 Calvert may he credited and believed, promising to ratify 
 and confirm whatsoever shall he done by him, according 
 to this my commission, as if it were done hy m3'self." 
 
 It thus appears that the Governor of Maryland had a 
 personal interview before March 28th, 1664, with the Gov- 
 ernor of Virginia relative to the settlement of the true 
 boundary-line between the two provinces on the Eastern 
 Shore, between tlie 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 in 1656, based upon it as 
 well as the act of the Assembly of Va. of Sept. 10th, 1663, 
 and the facts upon which that action was based, were all 
 before them. The result was, as Gov. Calvert stated in 
 his proclamation of June 3, 1664, that Sir William Berke- 
 ley "was pleased further, by his order of the 28th of March 
 last, to order the said Scarburg, with one or both the sur- 
 veyors, &c., * * to give a meeting to such commission- 
 ers as should by me be appointed at Manoakin 10th of May 
 last." That commission having failed, Philip Calvert was 
 ordered by the Governor to repair to Va. 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 tlie questions at issue with the Gov. and Council of 
 Virginia. In the absence of records, we cannot say how 
 far he was successful, but the inference is strong that be- 
 fore Oct., 1667, he had made an agreement with them sub- 
 
47 
 
 stantially similar to that formally signed by himself and 
 Edinuiid Scarborough on the 25th of June, 1668. A care- 
 ful reading of that agreement (leaving out for the present 
 the grant from Virginia for 1,000 acres on Smith's Island 
 in Oct., 1667) seems to warrant the assumption that he 
 had, and that Scarborough was sent by the Governor and 
 Council to perfect it and run tiie boundary-line, as it " re- 
 cites "by his majestj-'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 including the ap- 
 pointment of Philip Calvert in 1664 were based upon the 
 extreme claims of the parties to the controversy. Neither 
 had pretended to assert where the true mathenuitical jioint, 
 the Watkins Point of the charter, on which the sui-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 settled and agreed upon 
 no line could he run. They had confined themselves to 
 general claims reaching to the neighborhood of certain 
 places. 'No line was ever traced on avy inap of John Smithy 
 the only one in existence when the Charter 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, witli 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 the south side of but dis- 
 connected 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 almost 
 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 " Wat- 
 kins 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, shows the in- 
 
48 
 
 correctness of liis map pnblislied in 1635 with his relation, 
 and disproves the claim of Va., 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 Calvert and the Governor and Council of 
 Va. while he was with them '■'• to treat and determine the said 
 differences concerning Walkins Point, and when it was fairly 
 looked at by men negotiating in a just and amicable spirit 
 it caused all the extreme pretentions on both sides to be 
 abandoned. That furnishes the only rational interpreta- 
 tion of the language used in the preamble or first section 
 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 in- 
 tended to give permanent peace and securit}^ to both colo- 
 nies along the whole disputed line from the Chesapeake 
 Bay to the Ocean. That agreement is as follows: 
 
 "Whereas his Royal Majesties Commission to the Sur- 
 veyor Genl. of Virginia, commands setting out the bounds 
 of Virginia, with a reference to his Majesty's Hon'ble Gov- 
 ernor and Councdl 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 
 bis Majesty's Hon'ble Governor and Council have by letter 
 moved tlie Hon'ble the Lord Baltimore's Lieut. Genl. of 
 Maryland 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 line to the Ocean 
 Sea, &c. 
 
 "The Hon'ble Philip Calvert, Esq., Chancellor of Mary- 
 land, being fully impowered by the Hon'ble Lieut. Genl. 
 of Maryland, and Edmond Scarborough, his Majesty's Sur- 
 veyor 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 con- 
 clude the same to be Watkins Pt., from which said point, 
 so called, we have run an east line, agreeable with the ex- 
 tremest part of the westernmost angle of said Watkins 
 Point over Pocomoke Kivei', to the land near Robt. IIol- 
 
49 
 
 ston's, and there have marked certain trees, which are so 
 continued by an east line, ninninii; over Swansecute's 
 Creek, into the marsh of the seaside, with apparent marks 
 and boundaries, which by our mutual agreement, accord- 
 ing 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 Cal- 
 vert and the Governor and Council of Va., 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 pretensions, Va. no longer insist- 
 ing upon carrying out the provisions of her act of Assem- 
 bly by claiming to run the divisional line from Manokin to 
 the Ocean, and Lord Baltomore 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 point of laud formed by the north side of Po- 
 coraoke Bay and the south side of Annamessex Bay, the 
 Governor and Council of Va., by letter, moved tiie Governor 
 of Md. to appoint some fitting person to meet upon the 
 place called " Watkins Point" on Smith's map, with the 
 Surveyor General of Va., whose duty it was, "by his com- 
 mission from the King," to lay out the bounds of Va. un- 
 der 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 accordance with the request 
 contained in said " letter," sent l)y the Gov. of Md. to meet 
 Scarburg, having beeti long before fully empowered to set- 
 tle the disputed question. They met on said land, took 
 a full and perfect view of all of it, agreed that n(!ither Man- 
 okin nor Onancock was the i)lace on which the '• Watkins 
 7 
 
50 
 
 Point" of tlio cliarter was situated, hut tliat it was on the 
 point of land forniod by the north side of the Poconioke 
 Bay and the southern side of Amiarnessex Bay, and that 
 the extreniest part of the westernmost ans^Ie of it was tlie 
 true mathematical point from M'hich a line should be run 
 by survey to the Ocean on the east, and they ran it accord- 
 ingly. It may be suggested that tlie fact tiiat they viewed 
 the whole point and decided the point of departure after- 
 wards shows that they alone determined the whole ques- 
 tion. The answer is that the respective Governments 
 could only give gejieral 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 Poconioke Eiver to tbe land near 
 Kobert Ilolston's, and tlience to the marsh by tlie seaside. 
 The}' marked the line east of tiie Pocomoke for reasons 
 made obvious by another agr(;ement entered into be- 
 tween them, or rather signed by them on the same day, 
 for the protection of all grantees from Virginia for lands 
 north of the boundaiy 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 })atents 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 eitlier for Lord Baltimore or the claimants to 
 liave executed that agreement for the protection of Vir- 
 ginia patentees; but as Virginia bad made no grants west 
 of the Pocomoke nor on the seven miles east of the Swan- 
 secute 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 fur- 
 nished 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, 
 
51 
 
 wlierever it was iieci'ssarv <^)i' desirable to do so for any 
 purpose. Tlie lino thus run and partially marked is, the 
 Commissioners say, " /o he receiced as (he bounds of Vir- 
 ginia and Maryland on the Eastern Shore of the Chesapeake 
 jBuy.^' Not from tlie Fcjcomokc Kiver to the sea, leaving 
 the line west of that river for fifteen miles oitlier unsettled 
 or to follow the meanders of the river and bay to Cellar 
 Straits, four miles south of the line they had run, hut they 
 did what they were ordeied to do and what they say they 
 <lid. They settled the Ijounds of Va. and Md. by a straight 
 line, a8 the charter lequii'ed, from the Chesapeake Bay to 
 the Ocean. It seems to me that no other construction can 
 be given to tlie agreement. They met to run the Hue be- 
 tween the colonies according to the charter granted to 
 Lord Baltimore and the wliole line between the Chesa- 
 [leake Bay and the sea. Tliey 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 correspondence, records, or con- 
 temporaneous history is any com[)romise line suggested.' 
 No map-maker, until very recently, ever drew any other 
 than a straight line as the divisional line between the col- 
 onies 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 
 migiit be mistaken as to its true location, its existence 
 straight from the bay to the ocean was universally recog- 
 nized and laid down by them. We knoni 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 
 <letermine the said ditlcrencc concerninir Watkins I'oinl. 
 
52 
 
 In flie letter ordered by the Conncil of Maryland in 
 1662-03 to Sir Wrn. Berkley they say: "And that on 
 their part they wonhl appoint a time when we on our part 
 shall attend on them to determine that place which shall 
 be accounted '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 As- 
 sembly in 1663, she claimed that Accomac County ex- 
 tended to Manokin ; when the court of that county or- 
 dered 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 tliought 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 Wra. Berkley 
 disapproved his conduct; but in March, 1664, after Gov- 
 ernor 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 
 of June, 1664. When Philip Calvert was appointed to treat 
 with the Governor and Council of Virginia and settle the 
 disputed boundary, Scarburg was again in 1668 appointed 
 the agent of Virginia to close the controversy. He was 
 certainly a man of sufficiently high character to be trusted 
 by Virginia and the King with most important commis- 
 sions; and I know of nothing relative to the question 
 before us which warrants us to regard any act of his with 
 
53 
 
 suspicioTi or to impute to liim any improper motives. It 
 is urged that ho had obtained large grants of hmd from 
 Virginia north of the true charter-line, and that he \va8 
 therefore greatly interested 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 Cal- 
 vert'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 by 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 cliarter 
 line established over two hundred years ago is to be set 
 aside because of it, some fact should 1)0 shown. Finding 
 fault with Searburg now will hardly be satisfactory. I can 
 see, however, why he delaj^ed signing the tinal 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 1668 
 both sides were active in strengthening their respective 
 claims. Lord Baltimore was urging his otiicers to en- 
 courage settlers on the debatable ground. In 1666 he 
 organized Somerset county, and laid out its bounds thus: 
 "All that tract of land within our Province of Mai-yland 
 bounded on the south with a line from Watkiiis Pohit, be- 
 ing the north point of the bay 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 Scar- 
 borough and Calvert line, and in every other way sought 
 to sustain his claim south to that point. He had, in 1666, 
 I assume, abandoned his claim to Onancock. He re)>u- 
 diatcd llic theory advancfij in ihc .Mar\land stalcnn iil. 
 
54 
 
 that the VVatkins l^oint of liis charter was at Watt-^ 
 Island, or at any point south of the southern angle of the 
 county he laid out. Virginia, on the other hand, was vig- 
 orously pushing her (dainis northward on the eastern side 
 of the Poconioke River, wdiere the lands were far more 
 valuable and of course more eagerly sought after. She 
 liad not ci'ossed into the mai'shes west of the Pocomoke, 
 hut before 16G7 had granted nordi of the Calvert and Scar- 
 borough line about 33,000 acres, or over fifty square miles 
 of territory. If she made any grants north of tlie line of 
 1668 after July, 1667, I have fdled to observe thoni. Slie 
 was, under her act of Assembly of 1663, insisting on her 
 right to assert her jurisdiction over all the country from 
 the Chesapeake Ba^- to the ocean, south of a line nearly 
 opposite the Patuxenl River, some fifteen or twenty miles 
 north of the line of Calvert and Scarborough. Collisions 
 between citizens, officials, and the respective governments 
 were imminent until the Calvert and Scarborough settle- 
 ment and line adjusted everything according to the legal 
 rights of the parties. McMahon, in his History of Mary- 
 land, vol. 1, pages 20 and 21, sets forth these transactions 
 with great clearness. He says : 
 
 "These acts of unprovoked hostility on the part of Scar- 
 borough were at once disclaimed by Sir William Berkley 
 as wholly unauthorized, and as the best mode of obviating 
 all future difficulties, the Governor of Maryland set on 
 foot a negotiation with Berkley for the purpose of effect- 
 ing a filial settlement of the boundary line between the 
 respective possessions of the two governments on the east- 
 ern side of the bay. The entreaties and remonstrances of 
 tlie former were at last crowned with success, and com- 
 missioners were at last appointed, viz, Philip Calvert on 
 the part of Maryland, and on the part of Virginia its Sur- 
 veyor General, Edmond Scarborough, who were empow- 
 ered to determine the location of Waikins Point, and to mark 
 the boundari/-[ine between the tioo eolonies naming 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 thera on 
 beluilfof their respective governments, in one of which 
 they designated the point of land made by the north side 
 
Ob 
 
 of PcK'omoke Buy and tlio sontli side of Aiitiamessex Bay 
 iis Watkiiis Point, and the divisional line l)et\vcf;n the two 
 colonies to he 'an east line running with the extreniest 
 part of the westernmost angle of said Watkins Point over 
 Pocornoke river, and thence over Swansecnte Creek into 
 the marsh by the seaside, with a[»[)arciit marks and hound- 
 aries.' 
 
 "Thus ceased all tlu^ existing sources of controversy 
 with the Government of Virginia about the validity or true 
 location of the charter of Maryland." 
 
 McMahon evidently liad not a shadow of doubt that the 
 Calvert and Scarborough line ran straight from the Chesa. 
 peake Bay to the sea precisely wdiere I contend it does. 
 
 In a recent work by Edward D. Noell, entitled "Terra 
 Marie, or Threads of Maryland Colonial History," on page 
 151, the writer, after sjjcaking of Scarborough's raid, saya^ 
 "These acts were disclaimed by Sir Wm. Berkley. And 
 Philip Calvert on the part of Maryland, and Scarborough 
 as Surve3'or General of Virginia, on the 2.5th day of July, 
 1668, agreed upon a boundary, an East line from the ex- 
 treme part of the most VVestern angle of Watkins Point, 
 over Pocornoke River, thence over Swansecnte (>reek into 
 the marsh on the Eastern Shore." 
 
 In a note on the same page he says: "Scarborougli, from 
 the year 1630, had been prominent as a representative of 
 Accomac county, Virginia. Tlis daughter married Custis, 
 formerly an inn-keeper in Rotterdam, and the ancestor of 
 the iirst husband of Mrs. George Washington." 
 
 Other historians might he quoted, hut it would be only 
 a repetition of the i(Jeas if not the language of McMahon, 
 I doubt whether any expression can be found in any his- 
 tory, or any suggestion from any of the public men of 
 Maryland or Virginia, or any line drawn on any map, un- 
 til quite recently, which intimates either that tiie line of 
 division between Virginia and Maryland from the Chesa- 
 peake Bay to the Ocean was not a straight line all the 
 way, or that Calvert and Scarborough only maile a jjartial 
 settlement of tlie disputed boundary in 1668. Lord Balti- 
 more evidently was advised prom[)tly of what had been 
 
56 
 
 done, and approved the settlement made by Calvert and 
 Scarborough, Mr. Lee, in his letter to the Governor of 
 Maryland in 1860, says, (see page 12) "In instructions to 
 his son Charles, dated London, 21st March, 1670, Lord 
 Baltimore directs that he 'should fortliwith make good all 
 articles made by our dear brother Philip Calvert on his 
 Lordship's behalf, and Col. Edmund Scarborough, upon 
 laying out the bounds between his Lordship's said prov- 
 ince 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 the seven years as prescribed in 
 the agreement, each grant from Lord Baltimore containing 
 tlie following recital: "That whereas, by certain articles 
 of agreement, bearing date the 25th day of June, 1668, 
 between our dear brother Philip Calvert, Esq., Chancellor 
 of our said Province of Maryland, of the one part, and Col. 
 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 Vir- 
 ginia, from Walkins Point, on the Eastern Shore of the Chesa- 
 peake Bay, to the seaside," it was covenanted, &c. Therefore 
 the lands were granted. 
 
 These recitals, if there was nothing else, appear to rae 
 conclusive 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 tlrew or directed the preparation of the grants con- 
 taining 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 ordy settled the bounds between the two colonies 
 from the Pocomoke River, fifteen miles east of Chesapeake 
 
57 
 
 Bay to the Swaiisecuto Marshes, acveii rnilos from the 
 Ocean. 
 
 Some stress is laid by tlic majority of the board n]ton 
 one or two facts that I may as well notice here. One is 
 tliat Scarhnrg ai\d others had, in July, 1064, made afhdavit 
 that tlie Watkins Point on John 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 ti a clear 
 day." That affidavit is pronounced false. If these gentle- 
 men 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 the 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 Assembly of Virginia, in Sept., 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 survey- 
 ors and two burgesses and the due examination thereof," 
 conclude that "Watkins Point," according to John Smith 
 and discoverers with him in 1608, was. opposite the Patux- 
 ent 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. 
 
 Another point is that Calvert 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, liave and do 
 conclude the same to be Watkins Point, from which said 
 
point, so called, we have run an east liue^" &c. It is eon- 
 tended that the language of the agreement would be com- 
 plied 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 
 •ti division line between the colonies from the Chesapeake 
 to the sea, which was the ol)ject they professed to have in. 
 view, and which the}^ said they had accomplished. 
 
 No man with a map before hira, 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 " yyiade by the 
 north side 0/ 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 
 •construccioii possible, reached as far east as the point on tiie 
 Pocomoke River wliere the maiked trees on the line are 
 admitted to he by from three to four miles. 
 
 The counsel for Maryhind, it is true, drew a line from 
 Kingston, on the Annamessex, to Rehoboth, on a bend of 
 the Pocomoke River, 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 agree- 
 ment. Tliat 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 Potomac, or to Harrisburg on the 
 Susquehanna, as to assert that Pocomoke Bay extends or 
 ever extended to Rehoboth, or that Calvert and Scarburg 
 ever intended 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- 
 detined banks miles distant from its mouth. 
 
 They say that they met on Waildns Point, from which 
 
59 
 
 *^ point" tliov ran tlie line ow7' Pocomoke Kiver to the sea-- 
 side, wliieli was to be received as tlie bounds of Virginia 
 and Maryland on the Eastern Shore of the Chesapeake 
 Bay. I cannot 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 tiiey say they did. Yet 
 if their line is recognized only from Pocomoke rivci- cast, 
 every statement made by them is disregarded, and a Hue is 
 established which. ])al|»ably viohites tbe charter and contra- 
 dicts every fact which Calvert and Scarburg assort to be 
 true. How could tliey start from " Watkins Point" and 
 run across the Pocomoke River if they began tlioir 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, ajid 
 meanders through Pocomoke Bay and up the river four 
 miles north of its starting [dace to the line of 1668, and 
 th.eu followa it east to the sea. '' We are directed to ascer" 
 tain and determine the true line I)etween the States, not to 
 make lines arbitrarily."' The crooked lin« meandering, 
 from Cedar Straits up the Poconiocke Biiy and river to the 
 Calvert and Scarborough lino cannot possibly be thecharter- 
 line, which all must admit was a straight line fKom the 
 Chesapeake Bay to the Ocean, It will not do to assert, 
 without proof and without suggestion of the truth of the as- 
 sumption, that Calvert and Scarborough, over two hundred 
 years ago, ran a false \\i\q. {ind cheated Lord Baltimore out 
 of a strip of country from the Pocomoke River to the 
 Ocean, four miles wide and twenty-.-aix miles long, when it 
 was run and settled by his chancellor and confirmed by 
 himself, with full knovydodge of all the facts, and the line 
 «o established aesert.ed by him to be his charter-line in 
 •every possible fornji. I have shown the recitals in the 
 grants made by him jn^mediutely ^.fterwards; there were 
 hundreds of them, coi|iyeying 33»0^O' acres, all asserting 
 "that the Scarborough a;ijd Cu-lvert Ij^ie was his true divis- 
 ional chaj'tcr-Iine from ihv Vhe-f^ii^lAke Ji'^\ to the Ocean. 
 
Wlien it. is admitted that the Calvert and Scarboroni^li 
 line of 1668 is the trae 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 tixed by 
 thirty-three marked trees and other permanent objects, as 
 Mickler found was true 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. ISTo 
 mathematical problem can be simpler or plainer. When 
 it is asserted that two and two make four, the argument is 
 exhausted. This proposition is of that character. We 
 know that Virginia and Maryland each holds east of the 
 Pocomke by the boundary-line laid out and marked by the 
 commissioners, asserting it to be the line of the charter, 
 which is fully contirmed by grants to that divisional line 
 on both sides. Surely it must be evident that the propertj' 
 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 l)ecause of hei- continued, un- 
 disturbed possession of it. The settlement of the bounda- 
 ries of the provinces from the Chesapeake to the sea was 
 reported by Lord Baltimore to the King and the colonial 
 office in London, and was accepted by them as a stiaight 
 line throughout. We have a letter written by order of the 
 King to Lord Baltimone, August 19, 1682, in which he tells 
 him the true way to prevent any complication between him- 
 self and William Penn as to the divisional line between 
 Maryland and Pennsylvania 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 Scar- 
 borough on the line laid down four miles north of Cedar 
 Straits, from which point Lord Baltimore would certainly 
 have measured 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 
 
fil 
 
 oil l*eim>ylvaiii;i by iui adnieasuretiient of tlio two degrees 
 granted in your patent, according to the usual computation 
 of sixty Englisli miles to a degree, beginning from the 
 south bounds of Maryland, according as the same are al- 
 ready settled by commissioners, as is above 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 one from the Chesapeake to the 
 sea, it made no difference to Lord Baltimore or Wm. Penn 
 from what point of it he started. The measurement of two 
 degrees of latitude necessarily assumed that the lines north 
 and south were straiglit. It is irn[»ossible to suppose that 
 either the King or his council or the colonial ministry 
 suspected that Lord Baltimore could run his line four miles 
 further north into Pennsylvania, if he started from the east 
 side of the Pocomoke River, on the line run by the Com- 
 missioners, whose action they assumed was final, than he 
 W(.uld if he started from the point now called by Maryland 
 " 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 confirmed the Calvert and Scar- 
 borough line. Virginia being a royal province, tlie King 
 and Lord Baltimore alone had to agree to it. It must l)c 
 obvious that neither the King nor his council suspected 
 when that letter was written that Wm. Penn would lose a 
 strip of tei'ritory 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 Poco- 
 moke River to run his two degrees north, more tiien would 
 be taken if he began on the Chesapeake Bay. Nor 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 King's province west of that river 
 for four or five miles, when his charter called for a straight 
 line all the way, and the sommissioners liad said that they 
 had so run it. Lord Baltimore in the same year wrote to 
 Penn as follows: "My southern bounds being Watkins 
 Toinl, was so determined i»v •■ommissioners from his Ma- 
 
62 
 
 jest}- and others from rn_y father. Now, hue] tliey set Wat- 
 kins Point higher up tlie Bay, 1113' lather must have been 
 contented therewith, and tlje 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 tlie line of the settle- 
 ment 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 fact that the map 
 of Herrman, published in 1673, which was followed sub- 
 stantially, indeed copied from by a majority of the subse- 
 quent map-makers, including Fry and Jefferson and Thos. 
 Jefl^erson, as shown upon their face, draws the divisional 
 line straight from the Ocean along the Calvert and Scar- 
 borough! line to a fictitious point corresponding sonnewhat 
 with what is called Cedar Straits. Herrman had fallowed 
 Lord Baltimore's map of 1635 as to the location of his 
 line, which is the onl}' way to account for his blunder on 
 the ground of honest mistake. I repeat tliat the onh' fact 
 which the old maps establish is that Calvert ijnd Scar- 
 borough did run a divisional line from the Bay to the 
 Ocean, and that it was a straight line all the way. They make 
 tiic line of 1668 a part of the line of their maps. Herrman 
 says on his: "These limits between Virginia and Maryland 
 are tljus bounded by both sides deputies, the 27th May, 
 A. D. 1668, marked by double trees from the Pocomoke 
 east to tlje seaside to a creek called Swansecute Creek." 
 Fry and Jefferson's and Thos. Jefferson's maps each note 
 the fact that the line 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 sup- 
 ervision of the conimisioners 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 
 S-'arborouirh aloni^ the line east of thi-^ Pocomoke River. 
 
63 
 
 He protracted it west of that river for fifteen niilcs!, and 
 struck the Chesapeake Bay at the extreme western ano-le 
 of the hody of land formed by the north side of Pocomoke 
 Bay and the south side of Annamessex Bay, nearer the 
 former than the hitter, at the exact spot from which or 
 agreeable to which Calvert and Scarborouo;h say they ran 
 their divisional line in 1668. 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 liad the surveys of tliat line before them which we 
 now have, they would have drawn the divisional line to 
 the true Watkins Point at the westernmost angle. It 
 would have been impossi'Ae for them to have done other- 
 wise 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 tliat 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 Bay 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 n()rth of its mouth, 
 near Robert Holston's, runniuu 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 Lieu- 
 tenant Michler or any other competent engineer, and he 
 had been told to run the boundary-line according to the 
 information 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 i)oints would 
 have been discarded and the line protracted by the ascer- 
 tained straight line on the ground. 
 
 Herrman's map was approved and indorsed by Lord 
 Baltimore, as his answer to the question of the commis- 
 sionern in London, March 26, 1678, shows, lie says: "I 
 
64 
 
 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 Ilerrman. an inhabitant of the said Province, 
 and printed and pul)licly sold in London by liis Majesty's 
 license, to which I liereby refer for greater <ertainty." 
 This was a clear recognition of the line of 1668, promi- 
 nently laid down on the map, and of its being a straight 
 line all the way, as his charter requii-ed. This map had 
 the double effect of making all subsequent map-makers 
 follow him in his false Wai/dns Point, and of making Vir- 
 ginia and all persons seeking to locate lands in that colony 
 believe that by the line of Calvert and Scarborough she 
 had no land to grant west of the Pocomoke River, which 
 rationall}' accounts for her failure to take possession of any 
 land south of the line of Calvert and Scarborough west of 
 the Pocomoke. Herrman wrote the words Watkins' Point 
 in large letters all over the body of land, as a book at his 
 map will show. It does not appear that any plat of the 
 line or map of the country was ever hied anywhere by 
 Calvert and Scarborough, so that the colonies or people 
 might know what each was entitled to. 
 
 That Virginia never consented to a crooked line or gave 
 up knowingly any porti(m of the land she was entitled to 
 by virtue of the division made in 1668 is shown conclu- 
 sively by the fact that in 1682 she still complained of en- 
 croachments 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 Balti- 
 more by an unfair line from tlie pretended point of land 
 called ' Watkins' Point,' " east to the sea, by which (as 
 supposed) "there is at least lifteen 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 Scarborough had 
 cheated Philip Calvert, so as to get the line east of the 
 Pocomoke, four miles north of the charter-line. She 
 
65 
 
 charged, fourteen years afterwards, that the lino was un- 
 fair 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 Pocornoke 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 Pocornoke. The 
 almost utter want of value of that land, its want of conve- 
 nient connection to the balance of Accomac, (three-fourths 
 of what there was of it being swamp,) prevented any Vir- 
 ginia citizen from asking a patent for it. Very few patents 
 were .granted by Maryhmd 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 at- 
 tention would have been paid to the line. 
 
 Stress is laid on the 21st section of the Virginia Consti- 
 tution of 1776, in which she surrendered to Maryland, 
 Pennsylvania, and jSTorth Carolina the territories contained 
 in their charters, which, by the way, Maryland did not 
 accept, if acceptance was necessary. It seems to me to 
 confirm my view. Virginia 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 Scarbor- 
 ough line. She now consented that the charter lines as fixed 
 in 1668 should be considered as permanently established. 
 But it never entered into the brain of any man in Virginia 
 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 the Ocean or by a crooked line which is now 
 sought to be declared the true line to which Virginia in 
 1776 surrendered her claim. In the Maryland Convention 
 which met to frame the Constitution the following resolu- 
 tion was adopted October 30, 1776 : 
 
 " Rcsoli'cd unaiiimousb/, That it is the opinion of this Con- 
 vention that tlie sole and exclusive jurisdiction over tlie 
 9 
 
territory, bays, rivers, and waters included in the said 
 charter belongs to this State, and that the river Potomac, 
 and almost the loliole of the river Pocomoke, being compre- 
 hended in the said charter, the sole and exclusive jurisdic- 
 tion over the said river Potomac, and also over such pari 
 of the river Pocomoke as is comprehended in the said charter, 
 belongs to this State, and that the river Potomac and that part 
 of the Chesajjeake Bay luhich lies between the capes and the 
 south boundary of this State, and so much thereof as is neces- 
 sary to the navigation of the rivers Potomac and Pocomoke, 
 ought to be considered as a common highway free for the people 
 of both States, loithout 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 Poco- 
 moke some four miles from its mouth, leaving "almost 
 the whole of the river Pocomoke" in Maryland, compre- 
 hended 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 Maryland by adverse pos- 
 session of any land south of the charter-line. 
 
 The compact of 1785, the language of which, I agree, 
 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. Sec- 
 tion o?7e 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. 
 
 Seclion 8 provides that laws and regulations for keep- 
 
67 
 
 ino^ the channel, &c., '■'■ of the. river Pocomoke within the limits 
 of Virginia " shall be raade with the consent of both States. 
 How did the river Pocomoke get within the limits of Vir- 
 ginia for any part of its course, as both States b_y that com- 
 pact (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 in- 
 cluded in Virginia if the charter-line ran from Cedar Straits 
 east, or if Calvert and Scarborough only ran the divisional 
 line east from the Pocomoke River to the sea, and con- 
 sented 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 Herrman's 
 map or the maps of Mr. Jefferson and others who followed 
 him. 
 
 Section 10 admits that there may I)e doubt as to the ex- 
 act location of Walldns Point. But while that doubt re- 
 mains unadjusted Virginia reserves the exclusive 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 
 Waikiiis' Point on many of the maps, and b}'- the possession 
 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. 
 
 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 tlie 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 18(»S, tells the whole story in his 
 
68 
 
 report. He says: "The part of the line between Chiiico- 
 teague Bay and the Atlantic Ocean, involved the prolonga- 
 tion of part of the line on the mainland visible from the 
 shore across the Chineoteague Bay to the islands border- 
 ing 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 
 vyere recorded in the land offices of the two respective 
 States, calling for this line as the State line. This tradi- 
 tionary 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 re- 
 commending the traditionary line acknowledged by the 
 land offices of both States as the boundary-line, " which, 
 with the stone monument as a pivot, leaves about the same 
 quantity of land in each State as if the Calvert and Scar- 
 borough line had been exactly prolonged. Surely these 
 facts show that the Calvert and Scarborough line was ex- 
 tended substantially for seven miles further than they 
 marked it, even to the Ocean, and the patents from Lord 
 BaJtiraore and Sir William Berkley, commencing within as 
 few years after 1868, called for the divisional line, which 
 Mr. De la Camp found marked as he described, doubtless 
 by the State surveyors 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 conclu- 
 sive 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, speakingofthew^estern 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 lightship, now an- 
 
69 
 
 cliored abont a mile and a lialf out from the present shore- 
 line." * * * "The hand lying south of the prolonged 
 or broken line is principal!}' marsh, the area of firm land 
 south of it and west of the Pocomoke not exceeding eight 
 square miles." There is no doubt, therefore, that the point 
 from which Calvert and Scarborough 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 Anna- 
 messex Bay; that it was the only promontory on the Bay, 
 all the Bay coast south of it being mere marsh, palpably 
 always so at Cedar Straits. That their line was aeiualbj run 
 from that angle is obvious. Nobody, I presume, will ven- 
 ture to assert that they could have run a line from the Po- 
 comoke river, which was fifteen miles distant, east to the 
 Ocean so accurately l)y guess that Michler, with his instru- 
 ments, would strike the very mathematical point on Chesa- 
 peake 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 
 they intended to state a falsehood, they ccuild not possii)ly 
 have made it correspond so accurately with the truth; they 
 must have run it, or Michler never could have traced it 
 back two hundred N'ears afterwards for fifteen miles on the 
 reverse line to the very spot they described. 
 
 Lord Baltimore granted that extreme westernmost point 
 March 19th, 1666, two years before the line was run, to 
 Henry Smith. The Patent contained 150 acres, describing 
 it as "A parcel of land formerly called Smith's Island, (now 
 aPenynsula,) lying and being in Annamessex, beginning 
 at a marked tree standing on the southernmost side of the 
 Island; thence running E. by jST., by the Bay side, to the 
 mouth of Cornelius Ward's creek; thence running IST. by 
 AV. to nmarked Pine standing by the Bay side; thence run- 
 ning W. by S. to a marked tree standing on the northern- 
 most side of the Island; thence running by the Bay side, 
 including the pitch of the point, to the first bounds." 
 This J'atent shows several noticeable facts. i'Vr.s/, there 
 
70 
 
 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 b}^ Md. 
 to be the " Watkins' Point" of the charter. Smith, in his 
 history, says there were trees on the Watkins' Point he 
 named, on which they 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 njany years before. Second. It was a 
 Point, and a point of high laud on which trees grew; a 
 Promontory or headland. Third. It had "formerly," long 
 before it was granted to Smith, before either Lord Balti- 
 more or any private person had any occasion to give it a 
 name, been called '^ Smithes Island," most probably after 
 Capt. John Smith himself, from the names, notes, marks, 
 and crosses he and his companions had placed on the trees 
 halt 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 con- 
 veyance, after setting forth his patent in full, among the 
 lines by which he conveys is the following: " Thence run- 
 ning down the aforesaid Bay side to the northernmost side 
 of the point called 'Watkins' Point,' and from thence run- 
 ning round the said Point to a pond called Duck Pond, &c." 
 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 de- 
 pending on tradition or the truthfulness of witnesses 
 detailing old men's legends ; it is a recorded fact, made at 
 the time when all the facts were fresh, and its materiality 
 in this or any other controversy could not have been sus- 
 pected. 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. 
 
71 
 
 That name and the accnracy of the line as developed by 
 Michler, coupled with the facts 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 was called the Mountain of Anne- 
 messex; that there was a peacli 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 
 " Walkins' Point" 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 Chesa- 
 peake, about five miles from the present Ba}^ shore, and 
 see how far they elucidate the question. It is certain that 
 a line from Smith's Point on the Potomac or Qinqaack 
 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 would intersect it. 
 
 Some care is required to prevent confusion while speak- 
 ing 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 places which occurred about 
 the time referred 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 nowhere 
 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 the Smith's Island referred to in the 
 first grant by Sir William Berkley, made in 1667, on the 
 present Smith's Island; they all abandoned that theory 
 
72 
 
 when the facts were carefully 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 Chesapeake, and was much nearer, as Mich- 
 ler'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" Somerset 
 county; 3'et 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 Patei>t 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 
 tirst grant on it was by Sir William Berkley, Governor of 
 Virginia, to Henry Smith, Oct. 9th, 1667, for 1000 acres, 
 described as being in Accomac county, Virginia, " begin- 
 ning 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 grant. It will be remembered that after the Scarburg 
 raid in 1663, friendl}^ negotiations and personal inter- 
 views were had between Governor Calvert and his Chan- 
 cellor, 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 1666 so far withdrawn his 
 extreme claim as to abandon the line east from Onancock, 
 and laid oft" Somerset county, claiming Cedar Straits as his 
 southern boundary, running liis line from thence east to 
 the ocean. Under that claim all of the present Smith's Island 
 (then without a name) w^ould necessarily have been in 
 Maryland, yet the Governor of Virginia, in October, 1667, 
 
73 
 
 issued a Patent for part of it, calling for an east and west 
 Hue from Smith's Island, (soon afterwards called Janes' Is- 
 land,) 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 chai'ter 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 lino, when its 
 existence is proved by the agreement of Calvert and Scar- 
 burg, and two hundred years later is traced with absolute 
 accuracy by Michler across the Eastern Shore to the 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 bj^' subsequent Patents 
 and deeds from Virginia. 
 
 Of course there is difficulty in explaining accurately how 
 Sir Wm. Berkley, in October, 1667, could refer in his Pat- 
 ent 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 ii, and in the absence 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 conclusions. 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 prop- 
 erly be asked, could Sir Wm. Berkley 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 substantially agreed on by Philip Calvert and 
 
 the Governor and Council of Virginia, and the location of 
 
 it on Smiih's Island on the main shore determined on 
 
 10 
 
74 
 
 before October, 1667, and that it was agreed that the out- 
 lying island in the Bay should be treated and divided b}? 
 the same divisional line as that agreed on for the division 
 of the mainland. Many facts other than the action of Sir 
 Wm. Berkley sustain that assumption. We had record 
 evidence before us that on the 11th day of June, 1668, two 
 weeks before Calvert and Scarborough signed their agree- 
 ment as to the boundary and land grants, Charles Calvert, the 
 Governor of Maryland, signed a covenant setting forth in 
 detail the names of the persons and the exact number of 
 acres which had been cut offby the line assumed 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 laid out on the Eastern Shore in Somer- 
 set County to be within this province of Maryland, I do 
 hereby promise to ratify and confirm, by virt/ue of his 
 Lordship's instructions to me directed, every of the lands 
 by patent or grant," &c., made by the authorities of Vir- 
 ginia. Not 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 as to all the facts first sent to him 
 from Maryland, which, by the ordinary means of communi- 
 cation then, it is agreed, would have taken many months, ren- 
 dering it highly probable that the agreements were all in 
 fact made before October, 1667, and their formal ratification 
 and settlement delayed till Lord Baltimore was fully ad- 
 vised 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 bound- 
 ary. He alone had power by virtue of his commission as 
 Surveyor-General to lay off the boundaries of the Colony, 
 subject to the advice and order of the Governor and Coun- 
 cil. He might have well have held back the final ratifica- 
 tion of the divisional line until instructions were received 
 
75 
 
 from Lord Baltimore and his orders consummated protect- 
 ing all the Virginia grants north of the line in which he 
 was so largely interested. The covenant of Governor Cal- 
 vert is on pages 34 and 36 of the volume of statements and 
 evidence, dated 1872, submitted to us. I have examined it 
 as carefully as I could to ascertain when the grants pro- 
 tected by it were made. Many of them will be found on 
 pages 136 and 137 of that volume, and I have been unable 
 to find 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 be- 
 lieve it to be, it strongly fortifies the assumption that the 
 line was in fact agreed on before July, 1667, and explains 
 how Sir Wm. 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 actively carried on in 1666, should have 
 ceased in 1667. The patent of October, 1667, certainly 
 shows that Sir Wra. Berkley knew of the existence and 
 general location of the line at that date ; and his grantees, 
 Henry Smith and Col. Wm. 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 September, 1682, for 1,000 acres to Henry 
 Smith, of Somerset County, Maryland, as assignee of Col. 
 William Stevens, of that count}', and the same person Avho 
 had received the one-thousand-acre grant from Sir Wm. 
 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 ofiice of the city of St. Marie's, bearing date the 7th 
 of June, 1679, and there remaining upon record." Unfor- 
 tunately the record of that survey cannot be found. The 
 grunt is called " l*ittscraft," and among the lines described 
 
76 
 
 in it is the following: "Thence for the eastern boundaries, 
 bonnded 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 runtiing 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 Pocoraoke 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 di- 
 visional line, such as Lord Baltimore describes in this 
 patent, could 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 main-shore line had 
 been agreed upon. It is assuming a good deal to suppose 
 that Lord Baltimore and his officials, as late as 1682, were 
 ignorant of the true boundaries of the provinces, when, as 
 early as 1656, he had by proclamation directed his Gov- 
 ernor and Council "to cause the bounds of Maryland to 
 be kept in memory and notoriously known, especially the 
 boundaries between Maryland and Virginia 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 ob- 
 tained 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 tlic same line as Sir William Berk- 
 
77 
 
 ley's, calling it the divisional line between Marj'land and 
 Virginia, Sir William Berkley bad 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 Colo- 
 nel 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 nearer to Cedar Straits, 
 and nearer still to ^^ Smith's Island" the terminal points of 
 the Calvert and Scurburg line on the eastern shore. They 
 knew an east and west line. The sun and the north star 
 shone then as now; no compass was needed to deter- 
 mine 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 such recitals 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 line meandered down 
 through it and the ba}'- to Cedar Straits. Smith and Ste- 
 vens must have known that no east and west line could pos- 
 sibly touch the island they were buying and selling. In 
 other words, to maintain the crooked line theory Sir Wil- 
 liam Berkley, Lord Baltimore, Colonel Stevens, and Henry 
 Smith, the two latter especially, as they were on the 
 ground, are assumed to have been utterly ignonint 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 Kehoboth, one of Lord 
 Baltimore's commissioners to lay oif Somerset county, and 
 ()!ie of the justices of the pcat-c summoned by IMiilip Cal- 
 
78 
 
 vert to aid and advise him in laying off the Calvert and 
 Scarborongh 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 acrps and thus connect his with the Virginia 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 b}' Calvert and Scarborough. 
 
 It is thus that the acts and line;^ on Smith's Island demon- 
 strate 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 Watkiiis Point of Calvert and Scarborough, was a well- 
 known and perfectly-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 portion of it in Accomac 
 County, by the Governor of Virginia to Francis McKennie, 
 Arcadia Welborne and others. In this Patent the Northern 
 boundary is thus described: "Beginning at a marked 
 lightwood stump standing near I^anticoke 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 
 JSTanticoke, 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 survery 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 tlio same county and province, two bun- 
 
79 
 
 dred 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 wliich Virginia claimed as the prolonga- 
 tion 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: 
 
 "A part or parcel of laud 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 by 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 Mary- 
 land. While the action of Calvert and Scarburg w^as 
 yet fresh, and doubtless within his personal knowledge, he 
 went before two justices of the peace of Somerset county 
 with the deed, and had the following certificate indorsed 
 
 on it : 
 
 " Hen. Smith. [Sealed.] 
 
 '•Signed, sealed, and delivered in sight 
 and presence 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, Wm. and 
 Mary, over England, &c.. Anno Domini, 1693. Before 
 Thomas Newbold and Jno. King, gents., two of their 
 ma'ties justices of the peace for the county of Somerset, in 
 the province of Maryland, came the within-named Henry 
 Smith, in his proper person, and did acknowledge the 
 within-mentioned land, containing two hundred acres, part 
 thereof lying in Virginia and part in Maryland, to be right 
 of him, the witiiin-nanied Jno. Tyler, and his heirs forever; 
 and for this acknowledgment, quit claim, and agreement 
 
80 
 
 the said Jno. hath given him, the said Henry, nine thou- 
 sand pounds of tobacco. 
 
 "Ths. Wewbold. 
 
 "Jno. King. 
 " Coram nobis. 
 
 *' Entered the 17th of August, 1693, pr. 
 
 "Jno. West, Cir cr." 
 
 It seems to rae impossible 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 fol- 
 lowed 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 pat- 
 ents, conveyed 150 acres of land to Arthur Parks and 
 Thomas Summers, wdiich was shown by other deeds and 
 proofs to be very near the protraction of the Calvert-Scar- 
 burg line, which he bounded as follow: 
 
 "Beginning where an east and west line enters the marsh 
 from Jane's Island, being the Virginia line, through the 
 aforesaid Smith's Island, where the said line enters the 
 marsh upon the west side of a creek called Dogwood 
 creek," &c. 
 
 It wnll be observed that each deed keeps up the call 
 for the boundary line between Marjdand and Virginia 
 about the place where the Calvert and Scarburg line pro- 
 tracted would cross the Island, and all call for an east 
 and west line across it. These facts do not rest on tradi- 
 tion, and are not dependent on human memory or human 
 prejudice ; they are the record of facts made at the time 
 without reference to this or any other dispute. As late as 
 1848 Ricliard Evans conveyed to John Marshall, of Ac- 
 comac Co., a resident of the southern part of Smith's Island, 
 a tract of land described thus: " On the north by the lands 
 of Elijah Evans, of Somerset Co., Md., and the State line 
 separating the States of Va. and Md." This tract is about 
 
81 
 
 the point where the traditionary line from Jane's Island 
 crosses Smith's Island, perhaps just south of it. It is un- 
 necessary to elaborate further i»y 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 Cidvert 
 and Scarburg line, and Maryland contending for a line 
 from Horse Hammock on the eastern to Sassafras Ham- 
 mock 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 pro- 
 duct of the Calvert and Scarburg line to the westernmost 
 angle on the main shore. Many circumstances combined, 
 especially of late, to make as many of the citizens and res- 
 dents of Smith's Island as could possibly do so become 
 citizens of Maryland. The Island was so far from Drum- 
 raund Town, or any other settled portion of Accomac Co., 
 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 anywhere. On 
 the other hand, the island was near the Maryland shore. 
 The largest and most populous portion of it was unques- 
 ably in Maryland. Crisfield, on the main shore, and other 
 points in Somerset county, were springing up, and the busi- 
 ness and social intercourse of the islanders was almost 
 exclusively with Maryland, Two justices of the peace, 
 who could take acknowledgment of deeds or decide cases, 
 were kept in commission by Maryland. In 1835 she es- 
 tai)lished an election precinct on the island, and her com- 
 missioners, without going near "Horse Hammock," where 
 John Tyler lived, hearing that he was, perhaps, the best 
 qualified man on the island forjudge of (dections or justice 
 of the peace, laid off the election precinct so as to take in his 
 11 
 
82 
 
 house, and he was soon afterwards qualified as one of the 
 justices. It does not seem to me, under all the circum- 
 stances, 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 prolongation of the Calvert and Scarborough 
 line. It is perhaps unnecessary for me to set forth fur- 
 ther the evidence as to the recognized stones and trees, 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 Vir- 
 ginia as late as 1855, in the race between Gov. Wise and 
 Mr. Flournoy. I suppose, however, they generally voted 
 in Maryland. 
 
 It seems to me that the patents, deeds, marks, and tra- 
 ditions 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. 
 
 If the action of the Maryland authorities, in regard to 
 the election precinct and other matters on Smith's Island 
 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 prin- 
 pal 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 Mary- 
 land 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 Rock, in Tangier 
 Sound, in what was clearly Maryland waters, if Cedar 
 Straits is the Boundary line, and in what is clearly Vir- 
 ginia waters, if the Calvert and Scarborough line extended 
 to the western angle at Jane's Island. The volume con- 
 taining the Marjdand and Virginia Reports 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. 
 
83 
 
 Distinguished counsel appeared on both sides, J. W. 
 Crisfield, W. S. Waters, and Wm. Daniel being attor- 
 neys for Jno, Tyler, and Wm, Tingle and I. D. Jones for 
 Cullen. While there was a good deal of testimony taken 
 in regard to it, it is very clearlj^ stated in the deposition of 
 Jno. Tyler, taken at Crisfield, Md., 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. I was captain of the vessel, and was arrested 
 by Captain John Cullen, 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 ap- 
 peal 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 the State line ran from Smith's Island to 
 Little Aunamessex, or wliat was the question in the case? 
 
 "Answer. That was my only plea, that I was dredging 
 in Virginia waters. 
 
 "7th Question by same. Did you hear the testimony in 
 the case, and who were examitsed as witnesses? 
 
 "Answer. I heard the testimony, and Thomas Tyler, 
 my grandfather, William Tyler, James H. Hoftman, W. G. 
 Hoftman, 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. 
 
 "8th Question by same. Were other parts of the line 
 between the States inquired into, and what parts? 
 
 "Answer. My gratidfather 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 the island, and I believe also the 
 line extending from the island as far as to Pitt's Creek on 
 the Pocomoke river, was discussed in court. 
 
 "9th Question by same. State what was proved as to 
 the line across Smith's Island and the line across the 
 sound? 
 
84 
 
 "Answer. My gratulfather said that the line ran frona 
 tlie stone three-quarters of a mile above Horse 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 upon their evidence I was cleared. Mr. James 
 Lawson was summoned for the State of Maryland and my 
 grandfather was summoned on ray side. 
 
 "10th 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 witnesses testified on that point." 
 
 When asked as to the location of Filliby's Rock, 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 aforesaid, it lying between Filliby's and the 
 Great Rock. Great 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 rock 
 we mean a bed of oysters." 
 
 It will thus be seen that before this controversy arose 
 the Court of Somerset County, Maryland, reversed the de- 
 cision of the Justice of the Peace, acquitted John Tjder, and 
 released his schooner when he was dredging not less than 
 three miles north of Cedar Straits, on the East, or Mary- 
 land side of Tangier Sound, and therefore not protected 
 even hy the Horse Hammock and Sassafras Hammock 
 line across Smith's Island, solely upon the ground that he was 
 dredging inVirginia waters, being south of the boundary line 
 between Maryland and Virginia on Janes' Island, extend- 
 ing, 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. Callcn 
 
85 
 
 testified that his counsel, Jiulg-e Tingle, and Mr. Crisfield, 
 the attorney for Tyler, both spoken of as able lawyers, 
 agreed that he had to pay the judgment, but the}' thought 
 he had a good case to petition the Legislature of Maryland 
 for relief on, as he was an officer who thought he was dis- 
 charging 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 Char- 
 ter 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 por- 
 tion of the waters of Tangier Sound south 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 Pocomoke 
 Bay, but that Virginia repeatedly asserted 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 afl'ray orig- 
 inating in the effort of Virginia 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 ex- 
 penses on it. Virginia alone could try foreigners for 
 offenses 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 rifjht 
 with Virginia in Pocomoke Bay, and never claimed ex- 
 clusive jurisdiction over any part of its waters. 
 
 Before speaking 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 xm(.\ in rcai;liin<r the conclusions I have arrived 
 
86 
 
 at, by noticing as briefly as I can the eflfect which the last 
 or closing line has on the question. 
 
 Although it was argued, I think it can hardly be se- 
 riously contended that the language used in describing the 
 closing line of the Charter to Lord Baltimore, which calls 
 for the "shortest line" or a straight line (which is always 
 the shortest) from Cinquack or Smith's Point to Watkins' 
 Point, throws any light on the question as to the location 
 of the true Waikins' Point on the Eastern Shore. Whether 
 it was at ^^Onancock" as Lord Baltimore first claimed, or 
 at '■'•Nanticoke" 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 ran to the begin- 
 ning. The survey of the charter could not otherwise be 
 closed. ^^ Watkins' Point" is nowhere assumed, either in 
 the charter 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 Capt. 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 true Char- 
 ter-line of division, which both States have directed us to 
 ascertain and report; 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 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 
 
87 
 
 line" to the beginning, throw any light as to where the 
 beginning point was, or that it controlled the first line that 
 the charter required to be ran, or determined its locality, 
 is highly persuasive evidence, if any is needed, to show that 
 there is no real merit in the argument on that point, 
 
 I have up to this point avoided speaking of the admitted 
 fact that Maryland has always held possession of and exer- 
 cised jurisdiction over all the land west of the Pocomoke 
 river and south of the line of Calvert and Scarburg. which 
 I 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 right as to the line of Calvert and 
 Scarburg extending from the Chesapeake Bay to the ocean, 
 and that it is the true southern litie 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 1632, after setting 
 out the boundaries of the grant, adds, "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 appurtenances do remain 
 entirely excepted to us, our heirs and successors forever." 
 With that express restriction and reservation in the char- 
 ter, 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 
 possession against the King. Certainly not without avow- 
 ing his intention to hold it, even though it was outside of 
 his charter. Virginia remained a Royal Province till she 
 declared her independence in 1776. Tier 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 '■'■ ctdirdy 
 excepted" in the charter for Maryland to himself, his heirs 
 and successors forever, and there is no evidence that she 
 
88 
 
 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 any more; and it is equally 
 certain that he received no additional grant from the King, 
 and never asserted any right, by possession or otherwise, 
 south of the line of his charter. The letters sent by the 
 the King's order to Lord Baltimore, relative to his bound- 
 aries, and to the settlement of his controversy with Wil- 
 liam Ponn, assume that the line fixed by the Commis- 
 sioners in 1668 as the southern boundary of his charter 
 was conclusive, as Lord Baltimore's own letters, answers 
 to the Commissioners 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 oper- 
 ate in the matter we are considering. That was beyond 
 question the English law prior to the Revolution. 
 
 Looking over the whole ground, it is not difiicult to 
 understand how Maryland happened to retain the land 
 west of the Pocomoke and south of the charter line. 
 General Michler, in his report in 1859, says "that the 
 land lying south of the prolonged or broken line is princi- 
 pally 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 the 
 
89 
 
 mile along the wliolc line. It could hardly be supposed 
 or expected, at a time when land was cheap and popula- 
 tion sparse, that men who wanted to locate in Virginia 
 would seek to obtain grants from ber authorities and set- 
 tle where they would be separated from the great body of 
 Accomac county, deprived of all the protection and ad- 
 vantage of Government, to live in isolated spots sur- 
 rounded by swamps. It must not be forgotten that re- 
 ligious intolerance 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, sur- 
 rounded by Quakers, Catholics, and other ISTon-conformists, 
 whom they had perhaps aided in driving out of Virginia 
 because of their heretical opinions. 
 
 A very diiFerent 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 acres, 
 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, with all possible energy. Lord 
 Baltimore had made a number of grants, as the Patents 
 laid before us showed, on the west side south of the Cal- 
 vert and Scarburg line from 1664 to 1667. He had laid 
 oft' the county of Somerset in 1666 so as to embrace all 
 the land west of the river and north of Pocomoke Bay. 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 Scar- 
 burg line was established he had covenanted to protect all 
 the grants made l)y Virginia north of the line. No protec- 
 tion was given by Virginia to his grantees south of it. 
 Of course all who could, clung to the Maryland (Jovorn- 
 12 
 
90 
 
 ment 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 Mar^'land 
 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 care- 
 fully maintained. Scarburg does not appear any more 
 after 1668. It was not shown when he died. Lord Balti- 
 more, 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 years, 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 anything about 
 that detached fragment of land. He must have been well 
 advanced in years when the line was run, as he was a rep- 
 resentative 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 
 Ocean to the 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 
 extensivel}- circulated in both colonies, and was well cal. 
 culated to deceive, and no doubt did deceive the people of 
 Virginia atid the authorities by making them believe that 
 Virginia had no land to grant on the eastern shore west of 
 the Pocomoke. Mr. Jefferson's map, as well as that of 
 Fry & Jefferson, follow Herrman's. They evidently co[»ied 
 
91 
 
 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 Ilerrman had done, straight 
 to Smith's Point, but throwing it down so as to cross Po- 
 comoke Bay six or eight miles lower than where we know 
 it actuall}^ is, and leaving no land in their protraction of the 
 Calvert and Scarborough line in Virginia west of the Poco- 
 raoke. 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 Poco- 
 moke river. It was a rule in the English colonial office to 
 require governors and proprietors of colonies and grants 
 in America to re[)ort, in answer to interrogatories, such 
 facts relative to the condition of their provinces, their 
 boundaries, trade, &c., as the "Lords of the Committee of 
 Trade and Plantations " required. 
 
 The reply and complaint of Virginia in 1682, claiming 
 that the Calvert and Scarborough line had been unfair to 
 her by not fixing " Watkins Poini" at Nanticoke, fifteen 
 miles north of the line they agreed on, was in answer to 
 interrogatories of that sort. We have before us, from pages 
 217 to 222 of the Book of Reports and Statements, &c., of 
 1872, a series of similar questions propounded to Lord Bal- 
 timore on the 10th of April, 1678. The tenth question is, 
 "What are the boundaries, lotigitude, latitude, and con- 
 tents of land within the province? — what number of acres 
 patented, settled or unsettled, and how much of manure- 
 able land ?" Lord Baltimore's answer to this question as to 
 his boundaries has been given in anotlier connection, but it is 
 better perhaps to repeat it here. He says : " To the 10th 
 I answer, that the boundarys, longitute, and latitude ofj 
 this Province are well described and set forth in a late map 
 or chart of this Province lately made out and prepilred by 
 one Augustine Herrman, an inhabitant of the said Prov- 
 ince, and printed and pnblicl}' sold in London by his Ma- 
 Jisty's license, to wliich I humbly refer for greater (certainty, 
 
92 
 
 and not to give their Lordships the trouble of a large, 
 tedious description here." 
 
 Nothing appears to indicate that the Commissioners de- 
 manded any more specific description of the boundaries. 
 Herrman had not only drawn the divisional line straight 
 from the ocean to the bay, but he had with great minute- 
 ness described his line as the line laid down by Calvert 
 and Scarborough. Lord Baltimore adopted 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 b}' either 
 claim of right on one side or by concession or abandonment 
 of right on the other. 
 
 I am satisfied that the English authorities before the 
 Revolution all agree that such holding under a charter con- 
 taining 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 exten- 
 sively and relied on without examination as to their cor- 
 rectness, 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 oft" 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 Ma- 
 ryland, Pennsylvania, North and South Carolina are hereby 
 
93 
 
 ceded, released, and forever confirmed to the people of 
 those colonies respectively." 
 
 This provision certainly contained no grant beyond what 
 the charter of Maryland gave her, and parted with nothing 
 of hers vehich Maryland had in possession outside of her 
 charter line. 
 
 The compact between the then sovereign and independ- 
 ent States of Maryland and Virginia, entered into in 1785, 
 while it repeatedly 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 Chesapeake 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 Po- 
 comoke river, may be doubttul ; andon ihepartof Pocomoke 
 river, within the limits of Virginia, or where the line of di- 
 vision between the two States upon the said river is doubt- 
 ful, by any persons not citizens of the commonwealth of 
 Virginia, against the citizens of Maryland, shall be tried in 
 thecourt of the State of Maryland which hath legal cogni- 
 zance of such offense. And all piracies, crimes, and 
 offenses committed on the before-mentioned parts of Ches- 
 apeake Bay and Pocomoke river, by any persons not citi- 
 zens of Maryland, against any citizen of Virginia, siiall be 
 tried in the court of the commonwealth of Virginia which 
 hath legal cognizance of such offense. All piracies, crimes, 
 and offenses committed on the said parts of Chesapeake 
 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 avowed, and she had maintained her un- 
 doubted right to that point as the Watkins Point of lior 
 charti^r, it is hard to nndcrstaiid why hIk; would have made 
 
94 
 
 or agreed to a provision which substantially admitted that 
 the Watkins Point of the charter was doubtful. There 
 could have been no doubt about it if Maryland had main- 
 tained and Virginia bad admitted that " Cedar Straits" 
 was the charter point. Time does not run against the 
 Commonwealth any more than it does against the King. 
 When the holding was either doubtful or subject to fu- 
 ture adjustment 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 
 Pocomoke river, which neither desired to secure any ad- 
 vantage from over the other, by reason of accidental pos- 
 session, as all their future legislation on the subject shows. 
 That uncertainty and doubt became more serious as popu- 
 lation grew more dense and the trade in oysters became 
 the subject of State regulation and taxation. 
 
 The case of the '■'■Fashion" is a prominent example, 
 which need not be repeated. 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 adop- 
 tion 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 b^' either of what- 
 ever 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, inter- 
 vening between Smith's Point at the mouth of the Potomac Piver 
 and the Atlantic Ocean, has from, lapse of time become uncertain, 
 thereby involving innocent parties in difficulties to them 
 irremediable, therefore Virginia is invited to appoint joint 
 commissioners to retrace that portion of the line and to 
 mark the same by the erection of suitable monuments at 
 proper points." For some unexplained reason Virginia 
 did not accept this invitation until 1858. Under tliese acts 
 Messrs. Lee and McDonald were appointed by their res[)ect- 
 
95 
 
 ive States to retrace and mark the doubtful divisional line on 
 the Eastern Shore. Lieut. Michler's survey and report is 
 part of their work. Their report and Michler's were re- 
 ferred by the Legislature of Maryland to a select commit- 
 tee, which made a report, saying that the committee " did 
 not find the uncertainties described in chapter 60 to be 
 existing in the boundary between 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 Poeomoke River and the marsh 
 of the seaside, beginning therefor on the Poeomoke River, 
 east by compass from the extremest point of the western- 
 most angle of said Watkins' Point, as by them defined;" 
 "and that consequent upon this action of the commission- 
 ers, the divisional line across 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 passage by striking 
 out "westernmost" and inserting "southernmost," as de- 
 scriptive of the line from Smith's Point across the Bay. 
 
 The committee reported the true state of facts, as Mich- 
 ler'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, 
 a!]d its conclusions after (ixamination are entitled to full 
 consideration, notwithstanding the action of tlie House, 
 which cannot usually examine all the facts as well as a 
 committee. However that may be, the action taken by 
 the States since the compact of 1785 was entered into con- 
 firms 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 difterence between the Maryland Legislature and its 
 
96 
 
 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 
 Scarborough. 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 boundary between them when 
 ascertained, regardless of an}' 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 injury which might otherwise follow 
 by reason of the mistakes by possession growing out of the 
 uncertainty as to the true divisional line. The proviso 
 referred to is as follows : 
 
 " Provided, however. That neither of the said States nor 
 the citizens thereof shall, by the decision of the said arbi- 
 trators, be deprived of any of the rights and privileges 
 enumerated and set forth in the compact between them 
 entered into in the year seventeen hundred and eighty-five, 
 but that the same shall remain to and be enjoyed by said 
 States and the citizens thereof forever ; and j^rovided further, 
 that the landholders on either side of the line of boundary 
 between 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 possession 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 possession had been derived under 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 
 country west of the Pocomoke river and south of the Calvert 
 and Scarborough line should be transferred 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 I can find the facts to 
 be otherwise than as set forth in the foregoing statement. 
 
97 
 
 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 Cal- 
 vert and Scarburg from 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 wnth substantial accuracy the line agreed on by 
 the other arbitrators, so that a map may be delivered to 
 each State as part of my view of the case. I do not pre- 
 tend that the charter line runs from Watkins' Point west 
 over Smith's Island; and it is well known that Smith's 
 Point, at the month of the Potomac, is not the charter 
 point from wliich its closing line starts to cross the Bay. 
 That line was a straight one from "Cinquack," which was 
 somewhere about six miles south of Smith's Point to Wat- 
 kins' Point, on the Eastern Shore. "Cinquack" seems to 
 have been abandoned long ago, certainly as early as 1785, 
 when the compact was entered into, and the east and west 
 line vv'as by the action of Lord Baltimore and the Gov- 
 ernor 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 Kentucky. 
 13