Philadelphia Reflections

Forming the State of Delaware

Philip Yorke, Earl of Hardwicke

When the Duke of York was within hours of being banished, he told his agent Sir John Werden to give the contested strip (now the state of Delaware) to Penn, but save out the town of Newcastle with a twelve-mile strip of land around it. Werden wrote that into the charter with a proviso based on the idea that the fortieth parallel was to the south of Newcastle, when in fact it was fifty miles north of it, and could not possibly conform to the stated boundaries. Both Penn and Baltimore learned the true situation in a year or two, and both attacked the other for dissembling ignorance, each seeking to take advantage of implausible arguments. What in fact they both discovered was that if the dividing line could be pushed a few miles south, Penn would acquire the mouth of the Susquehanna in the Chesapeake Bay, while if it went north a few miles, Maryland would acquire most of Philadelphia. Lord Hardwicke worked out a reasonable compromise which, while ignoring some plain language in the documents, eventually resulted in the Mason-Dixon line which is now reasonably comfortable for everybody, although first subjected to another two decades of wrangle.

Delaware Wedge

Even part of the eventual compromise, a semicircular northern border, didn't come out right, resulting in a wedge of no-man's land. Landowners didn't enjoy paying disputed taxes, so they held up the settlement of the wrangle into the Twentieth Century. Eventually, the U.S. Supreme Court cut the wedge into two pieces, giving one piece each to Pennsylvania and Delaware. Meanwhile, disputes continued which had their basis in the way the semi-circular line was plotted out on the land. The surveyors ran 120 straight-line radii outward from the courthouse tower in Newcastle, and then connected the ends. Obviously, that resulted in 120 straight chords instead of a smooth semi-circle, and a couple of bulges had to be accommodated where the circle grazed other straight borders. The semi-circle crossed the Delaware River, so New Jersey helpfully abandoned its portion, only to regret its decision later when toll bridges were constructed, and ship channels deepened.

King Charles I

Two major societal changes took place between 1632 -- when Charles I granted the proprietorship of Maryland to the first Lord Baltimore -- and 1776 when all American real estate changed its rules. The first change was that the Delaware Bay morphed from a swamp into settlements of people; settlers came into possession. The second evolution was to the current view that if you sell some real estate it is no longer yours; in earlier eras, everything belonged to the king, who could take it away and give it to others as often as he pleased. In legal terms, the last king had the last word. Although acres of parchment were scribbled by lawyers pro and con, these considerations are what make clear how Lord Baltimore could hold the unchallenged legal title for fifty years to everything up to the fortieth parallel, but then have a court take away thousands of square miles. A land which was to become the three lower counties of Pennsylvania was given to William Penn by the Duke of York in 1682, using some flawed documents and only fully enjoyed by Penn's heirs for six years until they morphed into the new State of Delaware. From 1684 to 1769, legal ownership was a matter of continuing dispute. The exasperated Lord Chancellor (Hardwicke) in 1750 declared the case as one "of nature worthy of the judicature of a Roman senate rather than of a single judge".

Lord Baltimore

Lord Baltimore had been given "unsettled" land, occupied only by savages. William Penn's lawyers struggled to prove the Dutch had settled the area before 1632, while Baltimore's lawyers sought to prove that pirates and wandering fur traders don't count, nor do villages of thirty people who were wiped out by the Indians. By the Doctrine of Discovery, taking land from pagans was encouraged, but taking land from Christians required special formalities. Since this Doctrine dates back before there were Protestants, it might have been pertinent to inquire whether the Dutch should be regarded as pagans, as the Spanish surely did when they suppressed Dutch independence in the Eighty Years War, ending in 1648.

Lord Baltimore advertised land along Delaware for sale to settlers while the matter was still under litigation. That was the foulest play said Penn, a weak argument to make if litigation was intentionally pursued for a century.

Maryland favored the Catholic cause, so it seemed plausible for them to want to stall, hoping the Catholic Duke of York would ascend to the throne. Under the new King James II, however, Baltimore seemed unlikely to prevail that the same person, as Duke of York, really didn't own the land he was trying to give to William Penn. So of course, Lord Baltimore claimed he never stalled.

Cape Henlopen

And by the way, ocean currents moved Cape Henlopen a mile or so southward, but the real boundary problem was that common usage over the centuries confused Cape Henlopen with Fenwick's Island (to which it is usually attached by a thin barrier island), making an implicit difference in the Maryland/Delaware ownership of the corresponding strip of land at the southern border of the State of Delaware, a matter of a hundred or so square miles.

And all of this confusion was merely about the borders of one of the smallest of our fifty states. The political manner in which Delaware became a colony without a charter to the King, and became a state by gradual and mystifying degrees separate from the other counties of Pennsylvania are other complicated stories. Never mind the reasons Delaware remained in the Union during the Civil War, even though it also remained a slave state.

With gratitude to the memory of Dudley Cammett Lunt 1896-1981, whose books are a most readable but scholarly analysis of this complicated history. In particular, The Bounds of Delaware and, for the Mason-Dixon Line, Taylor's Gut in the Delaware State are recommended. The courts rejected arguments that the land was essentially wilderness when Lord Baltimore acquired his patent, and history has been sympathetic to Penn, the winner. The contention was the Dutch owned the land by right of discovery ( a Doctrine applied to land ruled by pagans by Pope Nicholas II in 1454), while the Duke of York later took it from the Dutch by surrender to force of arms -- another legally benign method of acquiring sovereignty. However, Lunt points out that a far more significant issue was the southern border of Pennsylvania in Penn's original grant, which asserted geographical impossibility to replace Maryland's plain and simply defined boundary. History has tended to regard this as understandable error, and subsequent legal quarrels to have been perpetuated by William Penn's greedy heirs. However, Lunt seems to reveal his own opinion of the affair by ending his book with a July 31, 1683 quotation from a letter by William Penn to Colonel Thomas Tailleur:

I, finding this place necessary to my Province and it ye Presence of Ld. Balt. was at Law, civil & common, I endeavoured to get it, & have it, & will keep it if I can.

Originally published: Thursday, February 04, 2010; most-recently modified: Thursday, January 09, 2020