Baltimore's petition against a patent for the Lower Counties had been laid over, asked in August, 1685, that it be taken up, as being a question of property, and not of power, as raised by quo warranto. In October, the Committee decided that the land granted to Lord Baltimore in 1632 was intended to be only such as at the time was uncultivated and not inhabited except by savages, and that the western shore of Delaware Bay and River at that time had been planted and was inhabited. A very fair, a substantially just, recommendation was made on Oct. 31 to the King in Council, viz: that the land between the eastern sea and river and the Chesapeake be divided into two equal parts by a line drawn from the latitude of Cape Henlopen to the 40th degree, the eastern part to be the King's, the western part to be Lord Baltimore's. On Nov. 17, 1685, an order was made in Council approving and directing this. Nothing was said about Penn's right under James in the recommendation or order. It was afterwards claimed that this order enured to the use of William Penn as James's tenant in fee under the old deeds.

The right of James, however, at this time did not hang upon his acquirement of the land when Duke of York, and the legal conclusion must be that his true title to the west side of Delaware Bay and River, justifying the decision, came to him when he succeeded Charles as King. Was the sovereign to be bound as trustee by his grants made when a private citizen without right to the property? or were the covenants then made for warranty and further conveyance so obligatory and beyond his royal discretion that a court of equity would afterwards presume a royal patent from him to carry them out? Was succeeding sovereigns' right, which was supposed to be for the good of the community, so to be divested? James as King did intend to give William Penn a patent for the Lower

Counties. This, moreover, as we learn from a petition of Hannah Penn of 1720, was to extinguish the rent reserved in the deeds of 1682. Logan had heard that the patent had gone through the various offices, and was ready for the great seal, when the Lord Chancellor made objection to some of the powers conferred. The Revolution prevented the final issuing.

From the livery of seisin at William Penn's first visit to America, when he entered the fort at New Castle, and turf and twig and a porringer of river water and soil were delivered to him there, and Markham, as his attorney, received similar tokens on Appoquinimy Creek, the inhabitants of the Lower Counties accepted their new master. They chose seven freeholders from each county to meet in Assembly with representatives from the counties of Pennsylvania on December 6, 1682. At that meeting, upon petition of seven persons from New Deal (Sussex), six from St. Jones's (Kent), and five from New Castle, an act of Union was passed on Dec. 7, by which those counties were annexed to the Province of Pennsylvania, and the people subjected to the same laws, and invested with the same privileges, as the people of the Province. This proceeding, which could not have force in political matters against the Sovereign, had no effect upon the disputed ownership of the soil: yet the region continued to be under the same government as Pennsylvania until the American Revolution, although with a separate legislature after 1702, and with the stipulation of the Penns in writing, whenever the appointment of the acting Governor was approved, that such approbation by the King or Queen should not prejudice the King or Queen's right to those countries. Within the region, the Penns sold and confirmed lands, and intermittently collected rents until Delaware, on July 4, 1776, was declared a free and independent State. Following that, the People decided adversely to any title

having been rightfully in the Penns; for while, in divesting the Proprietaries of unsold land and of quit rents, the Assembly of Pennsylvania made exceptions, and granted a partial compensation, the Assembly of Delaware neither allowed nor paid anything.

The decision, or order, of 1685, whatever its effect as between King James and Penn, established both the eastern and northern boundaries of Maryland, and should have been accepted by the Proprietaries thereof as shutting them out from the land east of the line prescribed, and by the Proprietaries of Pennsylvania as making them in their turn recede from the land west of the line as far as the fortieth parallel astronomically fixed. The King in Council was, as Lord Hardwicke afterwards said, the proper tribunal for the determination of boundaries, even where, as in this case, the King was deciding upon his own rights, for it was presumed that he would be just. It is likely that if Lord Baltimore had accordingly yielded the great bone of contention, the Lower Counties and the river frontage above them, a line run by him or his orders according to the mean of the observations would have been accepted by William Penn as the location of the parallel. The Proprietaries of Maryland, however, tried to overthrow the decision, and the Proprietaries of Pennsylvania maintained possession of what they had far south of even an approximate location of the fortieth parallel.

Throughout the long struggle between the opposing Proprietaries, the advantage was nearly always on the side of the Penns: at the beginning, in William Penn's standing at Court, and after the Revolution of 1688, in the greater toleration of Quakers than of Papists, and, except for a very short period, in the uninterrupted possession by the Penns of the government of Pennsylvania and Lower Counties, and, except at rare intervals, in the preference of the inhabitants concerned,

and almost always of the more substantial inhabitants, for the Penns, rather than the Calverts, as landlords.

In 1689, Charles, 3rd Lord Baltimore, was outlawed by the Court of King's Bench in Ireland on the charge of high treason, and this was followed in 1691 by the appointment of a Royal Governor over Maryland. Although King William III was convinced that Baltimore was innocent, and issued a warrant in 1693 for reversing the outlawry, Baltimore did not seek to avail himself of this by going to Ireland, although subsequently petitioning Parliament to relieve him; and the powers of government of the Proprietary of Maryland remained suspended during the rest of this Baron's life.

Under Royal rule, Maryland officials endeavored to have the boundary line run in accordance with the order of 1685, and Penn, on Sep. 1, 1697, ordered Markham to co-operate in doing this: but nothing resulted.

Scarcely any white people settled beyond the Brandywine except within twelve miles of New Castle until 1701. A few months after Penn ended his second visit to the Province, Cornelius Empson and others proposed to the Commissioners of Property to settle 18000 acres on the Octorara about twenty-four miles from New Castle. The Commissioners hesitated, feeling doubtful as to the Penn right so far south to the west of the line ordered in 1685, but the applicants were importunate and willing to take the risk. The Commissioners added 3000 acres for the Proprietary, and issued a warrant for the whole, dated 1, 7, 1702, the land to be adjoining on the south the barrens between the Octorara and the main branch of the North East River, and to be bounded on the south by an east and west line parallel as near as might be "to the line of the Province." The district received the name of Nottingham. It was laid out so near the latitude of the mouth of the Octorara as to be cut by the boundary as finally

established. About this time, Talbot's manor, which, laid out under Maryland authority, covered the district, was offered for sale to Anthony Sharp, one of the Quaker proprietors of New Jersey, and Sharp informed Penn of this opportunity: but Penn was without ready money, and the purchase would not change the paramount lordship, but, if the land was within Maryland, would make Penn only a tenant of Lord Baltimore for it. In 1705, Empson was so little inclined to hold Nottingham adversely to that Lord that he was contemplating protecting himself by acquiring a title to it from him. Nothing of the kind appears to have been done, and, in 1718, Keith, Lieutenant-Governor of Pennsylvania, gave officials powers within that settlement, he having, however, refused to exercise authority over the settlers of New Munster, east of Nottingham, who were holding by Maryland title. To a request from Hart, Governor of Maryland, for the recalling of the commissions over Nottingham, Keith answered that, pending a settlement of the boundary dispute, each side should be allowed jurisdiction over those occupying land under grants from that side.

For a long time after the settling of Nottingham, the trend of immigration through Pennsylvania was much further north, and the agents of the Penns took care to keep their people away from the Octorara line: so Pennsylvanians generally came to believe that such line was the undoubted boundary in the region bordering on the Susquehanna.

In 1708, the third Lord Baltimore, still hoping to obtain the Lower Counties, attempted to have the order of November, 1685, set aside; but, upon report by the Commissioners for Trade, the Queen dismissed the petition. A second petition by him for the same purpose resulted in an order of June 23, 1709, that the petition be dismissed, and that the order of 1685 be confirmed, and put in execution without delay.