the Penn lawyer, in writing to Pennsylvania about the agreement, apologized for its yielding so much!

It would seem, on the other hand, that, when the prominent Marylanders heard of the agreement, they began trying to find some means of breaking it without their Proprietary becoming liable for the £5000 forfeiture, although they might have thought even that preferable to carrying the agreement out. The joint commissioners were appointed and met, but soon adjourned on a quibble raised by those from Maryland. At a subsequent meeting, the latter insisted that the circle around New Castle was to be twelve miles in diameter, instead of radius. The commissioners appointed by the Penns having no authority to run any circle but that of twelve miles radius, there was a final adjournment on Nov. 24, 1733, obviating any forfeit, but making it impossible to carry out the agreement within the time specified.

On Aug. 8, 1734, Lord Baltimore petitioned the King to grant him letters patent confirming to him in fee the Peninsula as in the charter to Cæcilius, the 2nd Lord, notwithstanding the words "hactenus inculta” &ct. in its recital. Richard Penn, the only Proprietary of Pennsylvania then in England, opposed this, his lawyers insisting that the agreement for adjusting boundaries was in force notwithstanding the failure to run the line within the prescribed time. A petition from several thousand Quakers of the Lower Counties against such a grant was laid before the Commissioners for Trade &ct., and the latter recommended that further consideration be postponed until the end of Michaelmas Term following, to give the Penns an opportunity to raise before a court of equity the question of the validity of the agreement. Such postponement was made by the King in Council on May 16, 1735.

The Penns filed the necessary bill in the Chancery of Great Britain on June 21, 1735. Anybody reading the

bill, and not aware of the facts about the old patents as before mentioned, will get the idea that Baltimore, the defendant, was a terrible robber, a liar, if not a forger, a trickster who, after browbeating the rightful owners into his own terms, conspired to prevent their being carried out, and a sneak who took advantage of the absence of the older brothers to apply to the King. The bill prayed for equitable relief, the lawyers using every pretence of title, every accusation of bad dealing, requisite or cumulative, to make out that the agreement was reasonable, had been broken by the act of the other party, and should be specifically performed. The bill seems to have been the first formal assertion that the charter to the 2nd Lord gave him only the few miles on Delaware Bay between the cape at the entrance and the completion of the thirty-ninth degree, viz: the thirty-ninth parallel. Lord Baltimore's answer disputed the effect upon his right of orders in Council, possession, expenditure, and pecuniary loss set forth in the complaint, and denied some of the facts, and alleged that he had been imposed upon as to the location of Cape Henlopen from which the southern boundary of the Lower Counties was to be run, and set up the want of title in the complainants to the land to be allotted to him, and the want of consideration in the agreement, and defended his commissioners and their interpretations, and prayed for the cancellation of the agreement.

Before the case could be decided, the disorders on the frontiers broke out afresh, in fact the officials of the bordering counties of the two colonies seem to have promoted violence in hopes of gaining for their respective lords some small advantage. A petition was sent from Maryland to the King in 1736, reciting various offences committed, and praying some relief from the state of affairs. On Aug. 8, 1737, the King made an order in Council commanding the Governors of the two

Provinces to preserve the peace, and, for that purpose, to make no grants of any part of the land in contest, nor any part of the Lower Counties, nor permit any person to settle or attempt to settle thereon until the King's pleasure was further signified.

On petitions from both sides to the King, received after the royal order of Aug. 8, 1737, the Lords for Trade and Plantations brought about an agreement between the opposing Proprietaries as follows, viz: that settlements within the Lower Counties be permitted without prejudice to either right; that all lands remain in the possession and under the jurisdiction of the Proprietary possessing them, until boundaries be settled; that all other land in contest east of the Susquehanna, and not in the Lower Counties, and not as far as fifteen miles and a quarter south of the latitude of the most southern point of the City of Philadelphia, and all land west of the Susquehanna not as far as fourteen and three quarter miles south of said latitude, be in the temporary jurisdiction of Pennsylvania, and all land south of those distances be in the temporary jurisdiction of Maryland, that the respective Proprietaries be permitted to grant vacant lands within their temporary jurisdiction on the usual terms, subject to an accounting if such locality be finally adjudged to the other Proprietary; and that all prisoners by reason of the boundary dispute be discharged on their own recognizances to appear for trial when ordered by his Majesty. The King in Council on May 25, 1738, ordered this agreement to be carried into execution, without prejudice to either party.

The temporary boundary thus ordered between the two jurisdictions was agreed to be run by commissioners from each side, who began work on Dec. 5 by agreeing that a certain post on Society Hill was the southernmost point of Philadelphia. In the following Spring, after running due west far enough to

get away from the wide parts of the Brandywine and Christiana Creeks, and then running due south fifteen and a quarter miles along the surface of the earth with an allowance of 25 perches for altitude of the hills, all the commissioners ran the line from this starting-point thus found to the Susquehanna, and fixed the startingpoint on the west side. After this, one of the Maryland commissioners being called home by a death in his family, and his colleague declining to go on without him, the Pennsylvania commissioners ran the line to the top of the most western hill of the Blue Mountain range, the limit of land purchased by the Pennsylvania Proprietaries from the Indians.

The proceedings in chancery, including the taking of much testimony in America, lasted many years. The case came finally to Lord Chancellor Hardwicke for decision by himself alone. This was pronounced on May 15, 1750. Feeling the greatness of the interests involved, he remarked that the matter was "worthy the judicature of a Roman Senate rather than of a single judge," and that it was a consolation to him that there was a judicature equal in dignity to that Senate the House of Lords-to whom an appeal could be made, if he erred. He did not decide the dispute between the parties as it stood before the making of the agreement. Had that responsibility been upon him, it is possible that he would have come to conclusions more like those of an impartial historian as to the intentions of statesmen dead before he was born, and as to facts in which the actors had passed away. As the case was presented, he, however, saw reasonableness in the Penns' interpretation of the charters. He accepted as true the allegation of a charter to the Duke of York in 1683, and therefore thought that the Duke, afterwards King, was a trustee for Penn; but, as the Lower Counties were not to be conveyed by Penn's descendants, their title to convey needed not to be considered. The decision

was: that for an agreement to compromise, it was enough that there was a doubt as to the true rights, and the settlement of the contention was a sufficient consideration. He found as a fact that, in making the agreement, Lord Baltimore was neither surprised nor imposed upon nor ignorant. There was no mistake of the intention of the parties made in the articles of agreement. So the Lord Chancellor decreed specific performance of the agreement without prejudice to any right of the Crown.

The present author is not aware that there has been any criticism of this decision by any luminary of equitable jurisprudence as bright as the one who delivered it. What is called equity by lawyers had long before that time become an artificial system very different from the justice of the old ecclesiastical Chancellors. We can imagine one of them asked to enforce such a bargain as the heir of the grant of 1632 had made: they sat partly for the very purpose of restraining any man or men who by the terms of a bargain would get an unconscionable advantage. There can be little doubt that their opinion would have been against the complainants in this case, and with the words "ils serront damnés in hell."

For an account of the carrying out of the agreement so declared binding, the reader is referred to George Johnston's History of Cecil County, Maryland. Suffice it to say that the boundary line or boundary lines were at last run to almost the west end of Maryland by Charles Mason and Jeremiah Dixon. They were English mathematicians and astronomers, selected by the opposing Proprietaries, and performed the work in a little less than three years, ending on Sept. 25, 1766: and the delimination was confirmed by the King in 1769. In the middle of the Nineteenth Century, the names of Mason and Dixon were in the mouth of nearly every American; for their line was marking the cleavage be