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From: "Carter Dick (LegHall)" <>
Subject: [LDR] Del-Md Boundary Dispute etal
Date: Thu, 19 Dec 2002 20:41:39 -0500


I've seen several messages recently on the subject of the early status of Delaware and specifically those parts of the state which were once considered part of Maryland. The responses which discuss the status of "the Three Lower Counties Upon Delaware" seem to indicate some confusion as to Delaware's connection to Pennsylvania during the 18th Century. If you don't mind the somewhat excessive length of this e-mail, I thought I would straighten it out for those who might be interested.

As all good Delawareans know, the first point of European settlement in what is now Delaware was the ill-fated Dutch West India Company whaling settlement at Swaanendael (near present-day Lewes), which was established briefly in 1631. It's settlers were massacred by local Indians within a few months and the area wasn't resettled until some 25 years later, again by the Dutch. The later boundary disputes between the Calvert family, the Lords Baltimore of Maryland, and the Penn family, proprietors of Pennsylvania and Delaware, had their origin in large part because various British monarchs, through ignorance of local geography, appear to have granted the same lands twice. Their grant to the Calverts which, if memory serves me, was made in 1632, would appear to have included all or nearly all of present-day Delaware, but it included some sort of legal boiler plate which noted that the areas being granted were subject to change if it could be demonstrated that some portion the!
reof had earlier been settled by another European power.

Some 50 years later, after a great deal of water had gone over the dam in England, i.e., the beheading of Charles I, the Cromwellian interregnum, the restoration, etc., etc., King Charles II granted to William Penn the domains which later became Pennsylvania. This was said to have been in lieu of the repayment of a debt owed by the Crown to William Penn's late father, Admiral Sir William Penn (who figures prominently in Samuel Pepys's diary). A short time thereafter, the younger Penn, having had a chance to study the maps, realized that the lands he had been granted were a considerable distance from the ocean. Wanting to improve his position, he began lobbying for the grant of the additional lands to the south, down to the ocean, which were then held by the King's brother, James, Duke of York, by virtue of military conquest.

This area, which became the three lower counties, had also gone through a number of changes during the half century since the original Swaanendael settlement. In 1638, the Swedes had established colonies on the upper Delaware, including one at the site of present-day Wilmington. In the late 1650s, the Dutch had largely displaced the Swedes in the north and had resettled the area at the mouth of the Delaware, which became known at the Hoernkil, or "The Whorekills." They also established a larger administrative center (Fort Oplandt) at present-day New Castle.

In 1664, the British, under the Duke of York (the future King James II), went to war with the Dutch and were able to win control of the Dutch domains in America, including New Amsterdam (which was renamed New York in the Duke's honor) and those along the Delaware. This state of affairs remained in place for most of the time until Penn took over in 1681, except that the Dutch were able to regain control of the Delaware for a period of about a year in the early 1670s before the English got it back again. What had been two large administrative districts along the Delaware Bay under the Dutch became three counties under the Duke of York, New Castle, Jones (later Kent) and Deale (later Sussex).

While all this was going on, the Lords Baltimore were hard at work in the settlement of Maryland. The Calverts were not happy about the prospect of ceding control of the western side of Delaware Bay to the Dutch or anyone else, and they sent expeditions of raiders to the village known as Hoernkil (Lewes) several times in the 1660s and 1670s. At the same time their boundary with Eastern Shore Virginia was also subject to considerable uncertainly and the Calverts were clearly worried about holding onto their lands on the lower Eastern Shore of Maryland. They sought to encourage as much settlement in the area as possible in order to strengthen their claim. After the Delaware area was taken over by the Duke of York, their legal position was greatly weakened for obvious reasons. Surprisingly, one of their incursions against the future Lewes occurred during the period when the Duke was in nominal control, which did not help their cause.

Eventually, William Penn was able to get control of the Three Lower Counties as well as Pennsylvania, although he was not given the same type of outright title to this area that he had to Pennsylvania. It was more a kind of protectorate status, though Penn was very clearly in possession of full authority to govern the new area. Thus, there was always a kind of legal difference in the status of the two parts of Penn's domains.

Penn gave Kent and Sussex and the town of Lewes their present names. For a period of about 23 years the Three Lower Counties shared a common Assembly with Pennsylvania--the upper counties. But there were potential differences between the two areas from the very beginning. In the first place, the lower counties were subject to frequent attack by pirates along the ocean and bay coasts. The peace-loving Quakers who were in control were loathe to spend money on raising a military force to combat these threats, much to the consternation of the Delawareans. Secondly, it was very clear that as the Pennsylvania domains were vast compared to the Three Lower Counties, as settlement progressed in Pennsylvania the political position of the lower counties must inevitably decline.

These and other differences led to the formal division of the two areas in 1704. After that time the Three Lower Counties had their own separate Assembly and were a separate administrative unit, although they shared a proprietor and a governor with Pennsylvania. Unlike Pennsylvania, Delaware never had an executive council and functioned with just an Assembly until the establishment of the Delaware State in 1776.

The Lords Baltimore were much less reluctant to take on William Penn than they had been the King's brother and by the early 18th century there began the first in a long series of litigation in the English courts to establish the proper boundaries between the Three Lower Counties and Maryland. These actions grew more intense as settlement progressed in the areas in question and the stakes grew higher. At one point relatively early in the proceedings the Calverts were outmaneuvered by the Penns when they allowed the acceptance by the court of a map which showed Cape Henlopen as being located at the present site of Fenwick Island rather than where it is actually located some 20 miles to the north.

As a practical reality, during the first three quarters of the 18th century, everything in Sussex County south of the Indian River and west of a line generally running diagonally from Millsboro to a few miles east of Greenwood was considered to be in Maryland, but this was never absolute. And since settlement was minimal in this border area the line was somewhat hard to fix with any degree of certainty. The Calverts frequently attempted to grant lands in domains generally held to be controlled by the Penns and vice-versa as a way of trying to strengthen their opposing claims. The murder of the tax-collector mentioned by one correspondent on this subject was not entirely an isolated incident, though it was the only case I know of in which violence led to murder.

This is the background which led to the various surveys to establish the boundary, mandated by the British courts. These culminated in the most famous survey by Charles Mason and Jeremiah Dixon in 1763. It should be noted that Delaware's southern boundary with Maryland is not technically a part of the Mason-Dixon Line, despite a continuing belief to the contrary among many people who live in the area. There is a Mason-Dixon Motel in Fenwick Island and a Mason-Dixon Shopping Center in Selbyville, for example. The southern boundary is part of the earlier Transpeninsular Line, run by homegrown American surveyors in 1750 and 1751 to establish the middle point of the peninsula beginning at Fenwick Island.

Mason and Dixon confirmed that the earlier line was accurate and then began their survey at the Middle Point (some five miles west of the present town of Delmar). Having earlier laid out the great circle which constitutes Delaware's northern border with Pennsylvania, they ran the boundary line north from the middle point to intersect with this arc (there was a slight area of variation northwest of Newark known as "The Wedge", but that is another story). Then, at the point of intersection, Mason and Dixon turned west and ran the line which now constitutes the boundary between Maryland and Pennsylvania. This is the most famous part of the line, the part which historically separated north from south. Delaware is the only state which is neither north nor south of the Mason-Dixon Line, but actually east of it.

It took the courts another 7 or 8 years to officially approve the new boundaries, which were implemented in 1775, just months before the beginning of the American Revolution. That struggle resulted, among other, more momentous changes, in the final annihilation of the claims of both the Penns and the Calverts. The former Maryland parts of Sussex County were thenceforth known for several generations as "New Sussex" while the old, original parts of the county were "Old Sussex." Hope this is helpful. - Dick Carter

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