m CUV i RaJaxrvt A tlrX C^m^^u^- Glass. F i &x BookS_7/V(jg4>5 / \ a * REPORT OF TH* COMMISSIONERS CONCERNING THE • wiasiffiiBsi MffiMiPs ®? ipina static 1 ANNAPOLIS: J. HUGHES, PRINTS** Fi&f £° s To the Honorable ** The General Assembly of Maryland. Having been appointed one of the commissioners to settle and adjust the western limits of this state > and the dividing line and boundary between this state and the commonwealth of Virginia, it becomes a duty to make known to the Legislature the causes which prevented the commissioners from proceeding to any examination,, which might eventuate in a final termination of the dis- puted territory. When I arrived at Smith's Tavern, the place of rendezvous, the unexpected and mournful intelligence of the death of the late chancellor Johnson first reached me; an event deeply to be deplored as a private loss or a pub- lic calamity. As the surviving commissioners were from that place but a day's journey to Fairfax Stone, which had been designated in the act of Assemblj of Virginia as the place of beginning, it was deemed most expedient to visit it, and ascertain if this call would an- swer that of the Maryland act, and if not, how far Fair- fax Stone might be distant from "the most western source of the north branch of the Potomac river," which was the point of beginning specified in the Maryland law. It was soon discovered that the difference between the two places of beginning embraced a section of country about one mile in width and thirty-sis miles in length, which was dWned iO"> important to be abandoned unless under express instructions' to that effect. The reasons which induced the Maryland commissioners to terminate the business of adjustment will be found at length in co- pies of the correspondence herewith transmitted, mark- ed A, B, C, D, E. I declined taking a meridional line because the transit instrument had been rendered use- less and I wished the state to express some opinion up- on the point of beginning^ If the Legislature of Maryland contemplate new modelling their law to meet the views of Virginia, it will be fieceSsary to give the commissioners the power to summon and swear witnesses, and to vest a majority of the commissioners with the powers of the whole. If upon an investigation of the title the state has, it should be found that the act of 1 718 ch. 206, if acted under, will be an abandonment' of the rights of Mary- land to nearly an half a million of acres of territory, it may be considered fortunate that the phraseology of the Virginia and Maryland laws have essentially differed from each other. The only question for consideration is, whether the North or South branch is to be considered "the first fountain of the river of Pattowmack." In the consider- ation of that question, the charter granted td Cecil Lord Baron of Baltimore bearing date at Westminster, the twentieth day of June, fn the eighth year of Charles the second, the charter granted to Ralph Lord Hopton and others, bearing date at St. Germans en Ley the eigh- teenth of September, in the I st year of Charles the se- cond, other letters patent to Henry Earl of St. Alban's and others bearing date the eight day of May, in the one and twentieth year of the said reign, and other letters pa- tent to Thomas Lord Culpepper bearing date at West- minster, the twenty-seventh day of September, in the fourth year of James the second, must be construed in strict connection. I do not consider it irrelevant to the subject here to lemark, that properly authenticated copies of these charters are not to be obtained either in Maty- land of Virginia, and what appear* strikingly strange no copy which would be admitted as evidence by a tribunal properly constituted to decide this dispute, exists on this side of the Atlantic of the original charter granted to Lord Baltimore, the adventurous and venerable founder of Maryland. These grants of the first, eighth, and twenty first of (Bharles the second, and the fourth of James the second, contained, as is alledged, the disputed territory, to which Thomas Lord Culpepper became the sole heir, and whose right, if any he had, descended to his heir at law, Thomas Lord Fairfax, Baron of Cameron, who came into America, opened a land office, and made 6 grants, but he like Lord Baltimore, was prohibited from making grants in this portion of territory, by a royal pro- clamation, dated the seventh of October, 1T63. Thomas Lord Fairfax, Baron of Cameron, died, having devised hio right to Denny Fairfax About the time of the death of Lord Fairfax, the colony of Virgi- nia, having become an independent and sovereign pow- er, asserted its right to this territory, founding its claim on the principle of Denny Fairfax being an alien, obtain- ed possession of the records, documents, and entries of the lands made by individuals in the land office of Tho- mas Lord Fairfax, removed the same to the city of Richmond, and placed them in the keeping of the regis- ter of the land office there, and commenced issuiug war- rants. In the year 1796, or perhaps earlier, a company of gentlemen of whom John Marshall, the present chief justice cf the United States was one, purchased from Denny Fairfax the aforementioned devisee, all his claim, and the Commonwealth of Virginia subsequently obtain- ed the right of those gentlemen. The question still re- curs to the phraseology of the original charters, and the location of the first fountain of the river Potomac. If the South Branch traced to its source be the first foun- tain, then the act of 1718, chapter 206, will be an aban- 7 donment of nearly an half a million of acres, a large portion of which is extremely and proverbially fertile. The present line (as it is called by a vulgar error,) beeween Virginia and Maryland, was laid down by Francis Deakins, with a view to locate bounties of land to the war-worn veterans of the Maryland line, and in a spirit of grateful remembrance for their services, he was expressly enjoined to avoid all conflicting title. I hi« line is declared by the legislature of this state in the year 1788 u to be far within that which this state may rightfully claim as its western boundary; and that at a time of more leisure, the consideration of the legisla- ture ought to be drawn to the western boundaries of this state." This communication would have been made sooner, but the plat shewing the distance between Fairfax Stone and the most western source of the North Branch, was not forwarded by the chief engineer until a few days since, and will be transmitted to the General Assembly by my woithy colleague, Col. Chambers, in whose pos- session it is. I have the honor, gentlemen, to be, "With sentiments of high respect And consideration, yours, JAMES BOYLE, CORRESPONDENCE. A. SMITH'S TAVERN, August 7, 1824. GENTLEMEN, — In the conference which we had the honor to hold with you on the 4th instant, it was stated by us, that we should feel authorised by our com- mission to -ascertain the point which might correctly be termed, the western source of the North Branch of the Po;omu.c, and to commence the divisional line between the states «f Maryland and Virginia from that source. We had also the honor to enquire of you, whether by the commission under which you act, you considered your- selves authorised to commence at any other spot, than at the Fairfax Stone, in the event of your being convinced, by an examination of the streams at the head of the ri- ver, that stone was not located at the head of the stream whi.h ought properly to be considered the true source of the western branch of the Potomac river. We then un- derstood from you, thajt you would decline giving us an answer to the enquiry until you had viewed the stream* at the head of the north branch. Having since that conference taken a view of these streams, vve have now to invjte your attention to the sub- ject, and to request an answer to our enquiry. In sub- mitting this subject to vour consideration, at this mo- 10 ment, we feel it due to the candid spirit in which our pro- ceedings have" progressed, to inform you, that our ob- servations have resulted in the most decisive conviction, that the fork of the river at which the Fairfax Stone is placed, is not the proper source of the North branch. We beg it to be understood throughout, that we do not bv any expressions used in this communication, intend to as- sume the fact, of the North Branch at any of its streams being the proper source or fountain of the Potomac river. This is a question certainly not now to be agitated by us. The spirit of conciliation which has influenced our go- vernment to propose a beginning at the western source of the North Branch, from which to run a dividing line, has deprived us of the privilege of urging the reasons on which the claim to the South Branch as the first fountain of the river, could be sustained. The same rea- sons which induced the state of Virginia to claim the North branch as the first fountain . and the State of Ma- ryland to attempt an adjustment of the lines on the terms mentioned in her late statute, (which we had the honor to submit to you) appear to us to apply with the strongest possible influence in determining the stream westward of the Fairfax Stone as the source of the North Branch. The propriety of asserting and enforcing in detail, the reasons by which we sustain our opinion, that the Western Fork can alone be regarded as the proper source of the North Branch, must be determined by the 11 construction which you shall give to the powers vested by your commission. We therefore forbear urging them,, until we have the pleasure to receive vour answer. With sentiments of the highest respect, We have the honor to be. Your humble servants, JAMES BOYLE, EZEKIELF. CHAMBERS, Commissioners on the part of the State of Maryland. To H. L. Ofiie, T. F. Mason, and H. Eoi/e, Esqrs. Commissioners on the part of Virginia. True copy from the original, test, JOHN BREWER, Secretary to the Maryland Commissioners. B. To James Boyle and E. F. Chambers Esquires, Commis- sioners on the part of the State of Maryland. Gentlemen — We regret to perceive from your let- ter of this morning, as well as from the various conver- sations we have held with you upon the subject, that there is no probability left of our being able to adjust the boundary line between our respective states, which it was the object of our mission to settle. It is true that in our first interview with you in relation to this matter that we declined to enter into the discussion of any hy- 12 pothetical questions or enquire into the extent of powers, which the state of facts might render it entirely unneces- sary; and the more especially, as we derived from that interview, the impression that you would feel yourselves authorised to commence at the "Fairfax stone," or any other point, you might be satisfied, was in fact, the true source of the North branch of the river Potomac. — From subsequent explanations, however, as well as from the tenor of your written communication, it seems that in this impression, we were mistaken, and that you do not now feel yourselves authorised to enquire further, than to ascertain the most Western source of the North branch, and that in doing this, you are further bound to select the most Western tributary stream or spring with- out regard to the relative quantity of water, or the point at which it may contribute its supply. This alone, would in our opinion, raise an insupa- rable obstacle to our further proceeding; but in the same spirit of candor which has marked your communications upon the subject, we feel bound to repeat, what we have before declared to you, that by the act of Assembly under which we have been appointed, we are required, in run- ning the contemplated l : ne, to commence at Fairfax stone on the head waters of the North Branch of the Potomac river ', and further, that uponviewing the whole ground of controversy, the various tributary streams and springs, irt are under the most clear and entire conviction, IS that the fact assumed by our act of Assembly of Fair- fax Stone and the head waters of the main North Branch of Potomac river, being Identical, is entirely correct. In the course of your communication, you have been pleased to state "that you do not by any expression's used by you, intend to assume the fact of the North branch or any of its streams being the proper hource or fountain of the river Potomac," and we entirely concur with you, when you add "that this is certainly a question not now to be agitated by us." It has been too well set- tled, and its settlement too long acquiesced in and solemn- ly recognized by all parties ever again to be brought into doubt or controversy. Very respectfully, We have the honor to be, Gentlemen your obedient servants, H. L. OPIE, THO: S. MASON, HERMAN BOVE. Smith's Tavern, August 7. 1824. True copy from the original, Test, JOHN BREWER, Secretary to the commissioners on the part of Maryland. c. SMITH'S TAVERN, August 8, 1824. GENTLEMEN: — Your answer to the communi- cation of Col. Boyle and myself of yesterday morning, was received at too late a period last night, to permit a reply until this morning. Col. Boyle declines continuing the correspondence, for reasons with which he wdl ac- quaint you. Believing, however, that an omission to re- ply to you, might possibly be considered as an acknow- ledgement of the correctness of your statements and con- clusions, I must claim permission to say a word. The language used by you in relation to the South branch, has surprised me exceedingly, and I am utterly at a loss to conjecture on what authority you have introduced it into your communication. The true source, or first fountain of the Potomac was certainly the proper boun- dary of the state of Maryland. Whether it was to be found at the South branch, or at the North branch was a question of controversy between Maryland and Virginia, to adjust which, various essays were made, and at one time, commissioners were appointed to determine the question, who did not however act finally on the subject. Your answer asseits, "that it has been too well settled, and its settlement too long acquiesed in, and so- lemnly recognized by all parties, ever again to be brought into doubt or controversy." When, and by what act, or 15 what mode this settlement or recognition was made by Maryland, I am yet to learn. That the act of assembly under which her commissioners are now convened, was passed in a spirit of liberal feeling is admitted. The au- thorities of the state at that time appear to have been willing that the most western source of the North branch, should by compromise be received in lieu of the first fountain of the river, but I must still be indulged in the belief that no settlement of this question has ever been recognised by the state of Maryland in any solemn act or otherwise. In relation to the other parts of your letter, I do not deem it material to reply. I will howerer, express my regret, that you have alluded to ''various conversa- tions" as the grounds of certain opinions formed by you. Our situation has given occasion to many informal and casual conversations, which it was not expected, and certainly not intended by me to have been brought into view in any official proceeding on this subject. Under this impression, our communication of yes- terda) omitted the notice of any conversation, except that which took place at the formal conference on the 4th. That conference was the only one at which I considered myself acting officially, and therefore the conversation at that time alone, was considered proper for official notice. The danger of relying on casual and unofficial con- versation, is fully exemplified in this transaction, in the 16 progress, of which references are made by you from that authority, not exactly in accordance with the views which it was my intention to convey. I remain gentlemen, with great respect, Your vtry humble servant, E. F. CHAMBERS. To H. L. O/re^ T. F. Mason £s? II. Boye, Esqrs. Commissioners from Virginia. Trii'- copy from the original, Test, JOHN BREWER, Secretary to the Maryland Commissioners. D. Smith's Tavern, August 8M,1824. Gentlemen, In declining a continuance of the correspondence between us, I do so, because I consider your powers of so limited a nature, that it can lead to no happy result. Couid I believe you had any discretionary power, I would willingly continue a communication, but know- ing you are bound by the act of Assembly of Virginia to commence the line at Fairlax Stone, and that, the Mary- land Commissioners must begin at the most western source of the North Branch of the Potomac river, a cor- respondence is entirely useless. Tied down as both tides are by their respective statutes, the only question 17 for consideration is, whether Fairfax Stone is at the most western source of the North Branch of the Potomac ri- ver. I am of opinion it is not, and as we have no mu- tual point of beginning, I consider the object of the com- mission cannot be effected I am unwilling to continue a discussion of any points extraneous to the main ques- tion, which is, where are we to begin? And as the two commissioners cannot agree where to begin the line, I must determine to end a correspondence which can only lead us away from the true object of enquiry. I am sor- ry to differ on this sufcffct from my colleague, but as I act on my own responsibility, so I mnst answer my go- vernment if I err. I know that in all the conversations I have had witk you individually or collectively, offici- ally or unofficially,. I have stated that the Man land sta- tute marked out a beginning, from which I did not ft-el myself at liberty to depart. A discretion was vested with the Maryland commission to settle and adjust any claim of their state to territory claimed by Virginia, but as you appear to have no such authority v I consider the want of mutuality as depriving us of the right to exer- cise it The powers of the two commissioners do not cor- respond, and cannot consequently be brought to unite. I have the honor to remain your friend, JAMES BOYLE. IS To H. L. Opie, 1 . F. Mason fe? /. Boye, Esqr\. Commissioners on the part of Virginia. True copy from the original, Test, JOHN BREWER, Secretary to the Maryland Commissioners- E. •Smith's Tavern, August 8f//, 1824, To J. Boyle and E. F. Chambers, Esquires. Gentlemen, We have to acknowledge the receipt of yoursepe-- rate letters of this morning, and in reply, beg leave to state, that we entirely concur with Col. Boyle in thinking that the object of cur mission cannot in any manner be advanced by any further correspondence on the subject, as we cannot agree for reasons already sufficiently stated, on the beginning point. We consider our functions at an end. In answer however to so much of the commu- nication of Col. Chambers, as refers to a subject .not only not within the scope of either statute, under which we have been conjointly called on to act, but expressly ex- cluded by both, we would only remark, that the first al- lusion to it was seen by us with infinite surprise and re- gret, and that we felt constrained to notice it only as a question no longer open, and as beyond the bounds of 19 our legitimate enquiries, which we have uniformly con ; sidered as extending only to the settlement of, and not the stirring up of questions. H. L. OPIE, THOMPSON F. MASON. HERMAN BOYE. True copy from the original. Test, JOHN BREWER, Secretary to the Maryland CommiaaioneM. COMMUNICATION OF One 0/* Me Commissioners on the Western Boundary TO THIS LEGISLATURE. ANNAPOLIS: J. HUGHES, PRINTE1U EIEIMyiHP. Te the honorable the President of the Senate, And the Honorable the Speaker of the House of Delegates* The undersigned takes leave to present for the in- formation of the legislature, such facts in relation to the progress which has been made in execution of the act of 1 818, chapter 206, as appeared proper to be subjoined to the report of this date made by Col. Boyle. An interview with the Virginia commissioners, in- duced me to believe at a very early period, that an agree- ment on the subject of the boundary line could not be made, except on the terms of commencing at the particu- lar spot at which was placed the stone called the " Fair- fax Stone." All the intelligence which could be procured, and a plot of the various streams forming the head waters of the North Branch of the Potomac, of the correctness of which, there was every reason to be convinced, had per- suaded me that the Fairfax Stone was not situated at the most western source of the North Branch. These facts suggested the conclusion, that to avoid additional expense to the state, we should decline all fur- ther negotiation. Upon our proposing to the Virginia commissioners the enquiry whether they held themselves concluded by the terms of this act of assembly or their commission, to commence the locution of the line at the Fairfax Stone, they declined giving such a definite answer as would have justified us ir terminating the negotiation. We therefore i roceected t<» an examination of the se- veral streams forming the head waters of the North Branch, and to trace to its source the stream at the founr tain of which is placed the Fairfax Stone. The examination resulted in the entire conviction of the commissioners from Maryland, that the point at which the Fairfax Stone was placed, could not be consi- dered the most westerly source, or the first fountain of the North Branch. With this conviction on the part of the Maryland Commissioners, the correspondence was conducted with the Virginia Commissioners, which is communicated with Col. Boyle's report, to which for this purpose I must refer. Anticipating the possibility of a future prosecution of the claim of this state to all the territory north of the South Branch, which the legislature by the act of 1818, had for the first time manifested an intention up- on any terms to relinquish, and then as it would appear only in a liberal spirit of compromise; it occurred to me s that we should cautiously guard against a course of pro- ceeding by which such a claim would in any manner be weakened cr injured, in the event of a failure on the part of the state of Virginia to meet the liberal views of the act of 1818. The language of the Virginia Commissioners ap- peared to justify the inference that they too had refer- rence to ulterior measures, which might grow out of the present effort to conclude an arrangement on the subject] These considerations induced me to differ with my friend Col. Boyle on the propriety of remarking on the strange and untenable positions in the communication of the Virginia Commissioners of date 7th August, 1824. It was a matter of regret with me to differ with my worthy colleague in reference to another subject, which it appeared to me might involve the interest of the state, and the convenience of her citizens residing in or adjacent to the disputed territory. Avery considerable expense had been necessarily incurred in procuring com* petent engineers and proper instruments to enable us to run a meredian line with perfect accuracy. The United States corps of engineers had in the most polite manner gratified our application in the loan of instruments to supply the place of our broken transit instrument. In a line of more than thirty miles in length, as we were taught to expect this to be, it became exceedingly important to 4 avoid the error which the ordinary variation of the com- pass would produce, and which it was possible would be more considerable in this very mountainous region of country. The importance of a correct meridian line appear- ed to me manifest, if the two states should hereafter resolve to conclude an agreement, having for its basis the line thus to be run, or any other line in the vicinity of it, in as much as it would supersede tHe necessity of employing any other than a common practical surveyor. Should no such agreement be entered into, it yet appear- ed to me desirable that such a line should be run, and its relation to the streams of the river b« deliniated for the information of the proper authorities of the state. The almost inaccessible character, of that particular district of country, and thexonsequentabscence of accurate informa- tion respecting it, has been the so arce, it is believed, of the conflicting opinions entertained by the States of Ma- ryland and Viginia, as well as of the general expressions in the original grants which have been the subjects of their various constructions. These considerations influenced *ne,to suggest the propriety of causing a meredian line to >e run from the Fairfax Stone, or from the Western source (as the Maryland Commissioners consider it to be,) or from both points. Col Boyle was not of opinion that the advantage which I have suggested would result from the running of such a line, or that the benefit to be obtained by it would compensate for the increased expense. He was also of opinion that it was not desirable to do any act which might in any manner commit this state, even indirectly upon the principles proposed by the act of the Virginia Legislature, or indeed by our own act of 1818, which act he thought it wouTd be the interest of the state to repeal. This disagreement in our views necessarily prevented the running of the proposed line. The accompanying plot which it is believed pre- sents an accurate deliniation, will enable the Legislature to understand fully the views in which this subject has been considered. The supposed necessity of this plot which by accident was not received until a few days ago, must account for the lateness of the period at which this report is made. The accounts of expenditures incurred in the pro- gress of this transaction were placed in part under the care of Mr. Thomas Sudler, our engineer, and have not been furnished to me by him. As soon as they can be procured, they shall be submitted, to be disposed of as the. legislature may direct. The necessary advances in cash, have been made almost entirely from my private purse, and to a consider* able extent. 6 In conclusion, I take leave to suggest the propriety of further legislative provision on this subject. The charter of our state unquestionably entitles her to claim as far south as to the first fountain of the Potomac; she has uniformly claimed that the first fountain of this river was to be found at the head of the south branch, and it is confidently believed, that no official proceedings has ever sanctioned a different location. The placing of Lord Fairfax's stone, was the gra- tuitous act of an individual or individuals, whose imme- diate intrust was to be promoted by removing the western limit of this state, as far north as possible, and who did not pretend or profess to act in virtue of authority deri- ved from this state. A variety of circumstances have concurred to prevent a perfect exposition of facts connec- ted with the controversy, and finally the state of Virginia has declined acceeding to the proposal made in our act of 1818, by which a compromise was offered, which would give to Virginia nearly the whole of the disputed territory. It is not my province to suggest a course for legis- lative adoption, but it may be proper to remark, that should the Legislature be willing to accept the line pro- posed by the state of Virginia, it will be ne:essary to nvodify the provisions of the act of 1818. Before closing this report I must claim excuse from the Legislature in yielding for a moment to the influence ©f those feelings which have been witnessed in every 7 portion of our state, on the death of two of our most distinguished and most useful citizen*, successively ap- pointed to act on this subject. The universal sympathy which has every where soothed the sorrows of their im- mediate relatives, while it has proclaimed the just tri- bute of admiration for the merits of our deceased bre- thren, has also fully manifested the correct estimate which had been formed of their accomplishments, their virtues and their usefulness. In the numerous inflictions of a mysterious Provi- dence, which have deprived the state within a short pe- riod, of some of her highest ornaments, she will long have just occasion to deplore with peculiar and with the deepest concern, the unrelenting mandate, which has rob- bed her senat« of a most distinguished member, and her bench of one of the most able jurists that ever graced her courts. I have the honor to be, With great respect, Your obedient servant, E. F. CHAMBERS. Annapolis 19th January, 1825. * / . i* •>. • \ • •A'