Maryland State Archives

Charles M. Andrews provides a partially erroneous analysis of the warrants for the grant of Maryalnd to Cecil Calvert in volume II of The Colonial Period of American History. The Settlements, (New Haven: Yale University Press, 1936), pp.278-285. Because Andrews did not have access to the full text of the warrants, he wrongly argued that "Mariland" as first conceived, was to cover only what is now known as the Eastern Shore (p. 280). In fact, the first request for a grant encompassed land to the south of the James River. When Virginians objected, the second request, dated March 1632, encompassed all of the Eastern Shore as well as the whole of the Potomac River from "the head or fountaine thereof."

The language of the second request or draft warrant reads:

"that whole peninsula or Neck of land lying betweene the ocean on the East & the greate Bay of Chessopeack on the west, and betweene Cape Charles on the South, and Delaware Bay on the North, together with the whole Bay of Delaware unto the Bottome thereof and from thence to the head or fountain of the River of Patowomack and so long the west and south shoare of the said river unto a place called Cinquacke at or neare unto the mouth thereof where it falles into the Bay of Chessopeack, and from thence running along the west=shore of the said Bay to the Bottom of the same when it meetes wth the Peninsula first mentioned, and all the scope of land contained within those limmitts."

The Virginians were unhappy with the second warrant, which had already progressed through the Privy Seal, and 'after much discourse and debate' on June 5, 1632, the King was informed that the previous warrant should be limited to above Watkins Point. It is at this 'discourse and debate' that Virginia had every opportunity to object to the issuance of a charter encompassing the whole of the Potomac River, which it did not as is evidenced by the draft of the letter of the Attorney General requesting that the only change to be made in the "graunt lately passed the privi seale" be the removal of that part of the Eastern Shore below a parallel line drawn to the Atlantic Ocean from Watkins Point.

transcribed text:

May it please
yor most excellent Matie

Whereas upon complaint unto yr matie by some of the late dissolved company for the plantation of Vriginia pretending the injury & discouragement the English planted in those parts might recive by a grant lately passed the privy Seale unto the Lo: Baltimore of some part of that territory uer Matie was pleased to refer the examination of that difference unto us. Whereupon both parites appearing before us after much discourse and debate of the business, we thought fitt, in respect that divers of ye Maties subjects have beene a long time planted on that part of the Peninsula adjoyning to Cape-Charles, wch is now comprehended within the Lo: Baltimores grant, that ther should be an exception in the said grant, of all that part of the said peninsula where in the English are inahbited lying between the Promontory of Cape=Charles aforesaid & a certain poynt of land comonly called Watkins Poynt at or near the mouth of the river Wighco being distant three score miles from the said Cape Cahrels, and that therefore the Lo: Baltimores Grant should be in that river limited to that poynt, and in all things else continue as it was. All wch we humbly leave to yr Maties consideration.

R: Weston
Dorsett

From Greenewich June the 5th 1632.

Citation: June 5, 1632, "Coppy of the Lords Certificate to his Matie concerning the limits of my grant," Maryland State Archives Special Collections, MSA SC 1546-4

The Charter was issued on June 20, 1632 in latin with a sealed parchment copy given to Lord Baltimore and a copy for the King recorded among the Patent Rolls. Its bounds were defined by the language of the final draft of the patent which was in latin derived from the language of the second warrant as modified by discourse and debate limited to the controversy over how much of the Eastern Shore peninsula to grant.

The first English version of the Charter was published in 1635 as part of the Relation of Maryland. It is that text which forms the most accurate rendition of the original intent of Maryland's boundaries. Given the process by which the official recorded version of the Charter was translated into Latin, this is most likely the english version from which the official Latin was derived:

KNOW YEE therefore, that Wee favouring the Pious, and Noble purpose of the said Barons of Baltemore, of our speciall grace, certaine knowledge, and meere motion, have given, granted, and confirmed, and by this our present Charter, for Us, Our heirs, and successors, doe give, grant and confirme unto the said Cecilius, now Baron of Baltemore, his heires and Assignes, all that part of a Peninsula, lying in th eparts of America, betweene the Ocean on the East, and the Bay of Chesopeack on the West, and divided from the other part thereof by a right line drawne from the Promontory or Cape of Land called Watkins Point (situate in the foresaid Bay, neere the River of Wighco) on the West, unto the maine Ocean on the East; and betweene that bound on the South, unto that part of Delaware Bay on the North, which lieth under the fortieth degree of Northerly Latitude from the Equinoctiall, where New-England ends; And all that tract of land between the bounds aforesaid; that is to say passing from the foresaid Bay, called Delaware Bay, in a right line by the degree aforesaid, unto the true Meridian of the first fountain of the River of Pattowmeck, and from thence trending toward the South unto the farther banke of the said River, where it falls into the Bay of Chesopeack, and from thence by a straight line unto the foresaid Promontory, and place called Watkins Point, (so that all that tract of land divided by the line aforesaid, drawne betweene the maine Oceane, and Watkins Point unto the Promontory called Cape Charles, and all its apurtenances, do reamine intirely excepted to us, our heires, and Successors for ever.)

Because of the confusion in all the boundary court cases with regard to what constitutes the proper translation of the latin in the Maryland charter with regard to Maryland's boundaries, it is important to point out that the language of the charter was first in English as represented by drafts of warrants requesting that a charter be issued. Once the officers of the crown (in Maryland's case, the Attorney General) and the King in Council agreed to the language, then it was translated into Latin and, after several bureaucratic hoops, the charter was issued bearing the Great Seal.

Charles M. Andrews provides an excellent analysis of this process in an appendix to his Guide to the Materials for American History, to 1783, in the Public Record Office of Great Britain ... Washington, D. C., Carnegie institution of Washington, 1912-14. 2 v. On p. 271 Andrews points out that "in the case of Baltimore's Charter the bill seems to bear the signature of the Attorney General." [ecp-12-33; for a discussion of the first warrant and the request for a grant south of the James River see ecp-12-247]

For the authoritative version in latin see Patent Roll 8, Charles I, part 3, no. 2594 in the Public Record Office, and a fascimile presented by the Duke of Kent to the State of Maryland in 1984 (MSA SC 1601-1-1). The latin of the Patent Rolls was transcribed in the third volume of the Archives of Maryland. Daniel Dulany, in Thomas Bacon's Laws of Maryland (1765), provides the generally accepted translation on facing pages with a latin version which differs in minor respects from that transcribed in volume 3 of the Archives of Maryland. In 1860, W. N. Sainsbury pointed out that the examination of two later copies of the Maryland patent "exhibit a remarkable instance of the different construction that may be put upon the same document, if written in full or with contractions; the disputes with Virginia about boudnaries form the frequent topic of discussion in these papers." In 1723 a copy of the latin was transcribed and corrected from the original in the Calvert family Archives. Calendar of State Papers, Colonial Series, 1574-1660. London: Longman, Green, Longman, & Roberts, 1860, pp. xxii, 42, 152. In all, any discussion of the text of the Charter should flow from the English as published in 1635, and from the Latin as recorded on the Patent Rolls of the Public Record Office (MSA SC 1601-1-1) or from the missing original parchment given Cecilius Calvert. [editorial note, ecp-12-33-4]

The convention according to the order of the day, resolved itself into a committee of the whole, on that part of the constitution of Virginia which was referred to their consideration ; Mr. T. Wright in the chair. After some time spent therein, Mr. President resumed the chair, and Mr. Wright reported, that the committee had, according to order, taken the same into consideration, and had come to several resolutions thereon, which he read in his place and afterwards delivered in at the table, where the same were again twice read, amended, and agreed to as follow: Resolved unanimously, That it is the opinion of this convention, that the state of Virginia hath not any right or title to any of the territory, bays, rivers, or waters, included in the charter granted by his majesty Charles the first to Caecilius Calvert, baron of Baltimore. Resolved unanimously, That it is the opinion of this convention, That the sole and exclusive jurisdiction over the territory, bays, rivers, and waters, included in the said charter, belongs to this state; and that the river Potowmack, and almost the whole of the river Pocomoke, being comprehended in the said charter, the sole and exclusive jurisdiction over the said river Potowmack, and also over such part of the river Pocomoke as is comprehended in the said charter, belongs to this state; and that the river Potowmack and that part of Chesapeake bay which lies between the capes and the south boundary of this state, and so much thereof as is necessary to the navigation of the rivers Potowmack amid Pocomoke, ought to be considered as a common highway, free for the people of both states, without being subject to any duty, burthens or charge, as hath been heretofore accustomed. Resolved unanimously, That it is the opinion of this convention, that the very extensive claim of the state of Virginia to the back lands hath no foundation in justice, and that if the same or any like claim is admitted, the freedom of the smaller states and the liberties of America may be thereby greatly endangered; this convention being firmly persuaded, that if the dominion over those lands should be established by the blood and treasure of the United States, such lands ought to be considered as a common stock, to be parcelled out at proper times into convenient, free and independent governments. Proceedings p. 292-293, 1836 ed.

[For the original manuscript draft of the proceedings and the resolution see the images below from MSA S 989-4560-5[6}]

[The following text is taken from the Papers of George Mason, vol . II. See the portage.tif below for page images and the other images for the original record in the Maryland State Archives. Note that the Commissioners do not refer to the Compact they have just completed. Instead they refer exclusively to the Potomac Company legislation enacted prior to their current negotiations.

ENCLOSURE 2 TO THE PRESIDENT OF THE EXECUTIVE COUNCIL OF THE COMMONWEALTH OF PENNSYLVANIA

SIR Virginia, Mount Vernon, March 28th. 1785. In Pursuance of Directions from the Legislatures of Virginia and Maryland, respectively to us given, we beg Leave to represent to the State of Pensylvania, that it is in Contemplation of the said two States to promote the clearing & extending the Navigation of Potomack, from tide- Water, upwards, as far as the same may be found practicable; to open a convenient Road, from the Head of such Navigation, to the Waters running into the Ohio, and to render these Waters navigable, as far as may be necessary & proper; that the said works will require great Expence, which may not be repaid, unless a free Use be secured to the said States, & their Citizens, of the water of the Ohio & it's Branches, as far as the same lie within the Limits of Pensylvania: that as essential Advantages will accrue from such Works to a considerable Portion of the said State, it is thought reasonable that the Legislature thereof shou'd by some previous Act engage, that for the Encouragement of the said Works, all Articles of Produce & Merchandize, which may be conveyed to or from either of the said two States, thro' either of the said Rivers, within the Limits of Pensylvania, to or from any Place without the said Limits, shall pass throughout, free from all Duties, or Tolls whatsoever, other than such Tolls as may be established, & be necessary for reimbursing Expences incurred by the State, or it's Citizens, in clearing, or for defraying the Expence of Preserving the Navigation of the said Rivers. And that no Articles imported into Pensylvania thro' the Channel or Channels or any Part thereof to be opened as aforesaid, and vended or used within the said State, shall be subject to any Duties or Imposts, other than such Articles wou'd be subject to, if imported into the said State thro' any other Channel whatsoever. We request Sir, that you will take the earliest Opportunity of laying this Representation, on Behalf of the two States, before the Legislature of Pensylvania; ar)d that you will communicate the Result to the Executives of Virginia & Maryland. [822] By Acts of the Legislatures of Virginia & Maryland for opening the Navigation of the River Potomach above tide-Water, the Citizens of the United States have the same Right of trading thro' the said Water, which the Citizens of Maryland & Virginia enjoy; and we have no Doubt but the Legislature of your State will, agreeably to this Principle, give every Encouragement to Measures, which have for their Object, the Interest & Convenience of their Citizens, and those of the other States in the Union. We have the Honour to be, with the greatest Respect, Sir your most obdt. Servants G MASON ALEXR. HENDERSON DANL: OF ST. THOS. JENIFER T. STONE SAMUEL CHASE
ecp 12/13/00]

Chancellor Bland extracts the case as follows:

When an attachment is in the nature of mesne process, the Sheriff may take bail for the party's appearance; and on a return cepi, the sheriff may be ordered to bring in the body; or he may sue upon the bail bond. It is the better mode, in most cases, to decide on the motion to disolve the Injunction, before an attachment for the breach of it is disposed of.

The court frequently refuses an injunction where it acknowledges a right, when the conduct of the party complaining has led to the state of things, that occasions the application; but in most cases, to obtain an injunction, it is suffcient, that the qustion is important and dobutful. In some cases the injunction is granted by a special order, allowing a motion to dissolve, to be heard at an early day. The making of a substantial amendment dissolves the injunction of course, unless expressly save. An anser, which purports to be the answer of several; but is not sworn to by all of them, may be taken off the file; or considered as the answer of him only who has sworn to it. A defnedant may sufficiently answer, by adopting the answer of his co-defendant. --No one is a party to the suit against whom no process is prayed. --A misnomer may be waived, but if relied on, it is fatal.

Where the legal capacities of parties, as charged, are different; such capacities must be ocnsidered as if they were different persons. --A corporation can only be called on to answer by its proper name. -- All corporations are subject to visitorial power; or to some legal control. --In general, a corporation may alien all, or any of its property at pleasure.

A natural mill-site described. -- It is not legal to erect a new mill near to, and in rivalship of an old one.--The power conferred on the Potomac Comapny in regard to mills considered. --The nature and application of presumption or right as to certain mill-sites.

The Potomac river belongs entirely to Maryland --above tide, it was not originally deemed a navigable river; but has been made so, in a qualified manner, by law.

A grant of the power of eminent domain is one which must be construed strictly; it cannot be exercised for any but a public purpose; and, in general, does not admit of any repetition. The jurisdicaiton of this court in regard to persons or things not within the state; and the uncontrolled concurrent jurisdiction of the judiciary of this state, and that of the neighboring states, in some peculiar cases. --The termination of a canal at the tide in a certain district, must mean a convenient port in that district. --The usage as to the termination of canals. The difference between rivercanal navigation.

No parol proof, nor any part of the proceedings of either branch of the legislature, can be admitted to explain th elanguage of an act of Assembly; except as to private acts, in which there may be a latent ambiguity.

[Bland's index references to Binney's Case:

MILLS

A mill-site on a descending stream how constituted, p. 114; 116
The Plaintiff must describe and shew himself entitled to a mill-site before he can have any relief founded on a claim of such property, p. 117
The water of a stream cannot be diverted to the prejudice of the owner of a mil-site on it, p. 118
One mill may be erected so near another, as to compete with it for its custom, p. 119
The nature of mill-sites as connected witht he canals of the Potomac Company consided, p. 130
The claim of surplus water issuing from a canal for mills, founded on presumption, p. 138

RIVERS

The Potomac rivers belongs altogether to the state of Maryland, pp. 123; 127
The Potomac above tide declared to be a navigable highway to a certain extent, pp. 124, 128
A River not navigable may be made so by law, p. 125
A riparian holder has a right so to use the waters of a river as not to injure the rights of others, p. 125
The compact between Maryland and Virginia as the the river Potomac, p. 126
A common use of rivers flowing between conterminous states presumed, unless, as in the case of the Potomac, the contrary can be shewn, p. 127
The banks of rivers, why designated as right and left, p. 127, note.
Improved river navigation as distinguished from canal navigation, p. 158

See biographical materials on Theodorick Bland (1776-1846), who as a native Virginian wrote an exhaustive opinion denying Virginia's claim to the waters of the Potomac.]

Binney's Case appears as Virginia exhibit 4

After this & fixing upon a proper Magazine for powder we set off to explore Potowmack River which proved from the number of shoals & falls to be of no Service in transporting either Artillery or other Baggage in our passage down ... (Archives of Maryland, 6: 168)

I had the pleasure to see Sr J St Clair arrive also, after which we tarried there only one Day & in Order to examine the Channel of that River we came down Potowmack by water for the Distance of about 250 Miles, the many Falls & Shoals in that River will we find render the conveyance of Artillery & other Stores to the Camp by water impracticable... (Archives of Maryland 6: 186)