· · · VIRGINIA, MARYLAND · · ·
Surveyed five hundred acres of land on ye South Fork of ye branch. On our way shot two wild turkeys.… This morning we began our intended business of laying off lots. We began at ye Boundary Line of ye Northern [Branch] … & run off two lots.
—SEVENTEEN-YEAR-OLD SURVEYOR GEORGE WASHINGTON1
Here’s what we know. Maryland came into existence under a 1632 charter that stipulates its southern border as being “the first Fountain of the River of Pattowmack … and following the same on the West and South, unto a certain Place, called Cinquack, situate near the mouth of the said River.” We also know that the Potomac, as with every river, results from the confluence of numerous waterways. And we know—or surveyors do—that, from among these numerous waterways, the one most distant from the mouth of the river is considered the source (or in the charter’s more lyrical language, “first fountain”) of a river. We know that the South Branch of the Potomac, originating farthest from the mouth, would therefore be the southern border of Maryland. But we know that instead the North Branch is the southern border of Maryland.
Since half a million acres is at stake, and since Maryland diligently and repeatedly protested this obvious error, how did Virginia succeed in pulling it off?
Lord Fairfax (1693-1781) (photo credit 5.1)
The answer is Thomas Fairfax, the 6th Lord Fairfax. In terms of “who you know,” he of course knew his father, the 5th Lord Fairfax. The 5th Lord Fairfax had known and married the only legitimate child of Lord Culpeper, who knew and had remained loyal to Charles II during his French exile in the 1640s. Charles, essentially penniless while in exile, rewarded his supporters with land grants in the New World—a shrewd move since, in order to obtain their rewards, his supporters needed to return Charles to the throne.
Lord Culpeper’s IOU was proprietorship over all the land in the Virginia colony between the Rappahannock and Potomac Rivers. That was a nice hunk of real estate but, being south of the Potomac, it had nothing to do with Maryland. It was, however, the seed of Maryland’s boundary conflict with Virginia.
Following the restoration of Charles II to the throne, Virginia’s colonial government was less than thrilled to see the taxes from this region going to Lord Culpeper and, upon his death, the 5th Lord Fairfax and, upon his death, the 6th Lord Fairfax, the gentleman who caused the boundary conflict with Maryland to surface.
Thomas Fairfax was the first of the proprietors of this region to see the family’s American domain. Like his predecessors, he initially arranged for a relative to live in Virginia and manage his land. After a young woman whose name has not survived broke off their engagement, Fairfax left England to live on his American estates. He built a home for himself in the Shenandoah Valley, distant even from Virginia society, then centered around the ports of Williamsburg and Alexandria.
Lord Fairfax was not, however, in the wilderness. Virginia’s growing population had by then pushed westward to the point that disputes were arising regarding the boundary between the two rivers cited in what was now known as the Fairfax Grant. Consequently, he and Virginia’s governor commissioned a survey to settle their dispute by locating the western boundary of the Fairfax Grant—a line from the source of the Potomac to the source of the Rappahannock. Among those who participated in marking the Potomac portion was a young surveyor hired because he knew Lord Fairfax’s cousin. This “who you know” factor would also affect Maryland’s boundary dispute, since the young surveyor was George Washington.
In October 1746 Lord Fairfax’s and Virginia’s team placed a marker, known as the Fairfax Stone, at what they agreed was the source of the Potomac. That agreement located the source at the headwaters of the North Branch of the river, since that branch behooved both parties.
Whom it did not behoove was Lord Baltimore. Had the Virginia surveyors determined that the South Branch of the Potomac was the true source of the river, the land between the two branches would belong to his colony, Maryland. But Lord Baltimore did not then know (nor did anyone else) which branch of the Potomac extended farthest into the heavily forested western mountains. Over the next several years, however, his suspicions were aroused, and he had his colony’s governor dispatch a surveyor to determine the respective locations of the source of both branches. The surveyor reported that the South Branch extended sixty to eighty miles farther from the mouth of the Potomac than did the North Branch. Learning this, Lord Baltimore sent instructions to his governor, stating:
Lord Viscount Fairfax has a Grant of a large Tract of Land lying and running along the Banks of Patowmack River on the Virginia Side and … I am informed The Powers of Government in Virginia have taken the Liberty to ascertain the Bounds and Limits of his said Lordships Grant.… I am informed that Commissioners have proceeded therein and instead of their stopping at the South Branch, which runs from the first Fountain of Patowmack River, one of the Boundries of Maryland, have cros’t to a Branch runing North.… Communicate to Lord Fairfax that I am very desirous of Settling Proper Limits Conclusive between him and me in regard to my Province of Maryland and his Grant in Virginia.2
The Fairfax Grant: three-way dispute
Maryland and Virginia: disputed border
Lord Fairfax politely declined. Lord Baltimore then sought to have a survey commissioned by Maryland. But the colony’s House of Burgesses was engaged in a battle over taxes with Lord Baltimore and postponed funding the survey. The issue was further delayed by the dangers and expenses of the French and Indian War (1754–63). Once recovered from the war, Maryland commissioned a survey. When completed in 1774, it revealed what by now both sides knew: the South Branch of the Potomac was the more extensive branch.
But this was not the time for colonies to fight each other, particularly in a dispute that would require the king to adjudicate. Maryland and Virginia were in the midst of uniting with their fellow American colonies to fight that very king over issues far more important than this chunk of land.
The boundary dispute resurfaced during the first years of the new nation within the context of a new issue. Under the Articles of Confederation, no provisions existed regarding interstate commerce. One state could tax another for use of its roads and rivers. For Maryland and Virginia, a compact was necessary to protect Virginia’s use of the Potomac, which was entirely within Maryland’s jurisdiction, and Maryland’s use of the lower Chesapeake Bay, which was entirely within Virginia’s jurisdiction. In 1785 negotiations were mediated by, of all people, George Washington. At this time, Washington was retired from the army but was not yet the president, as no such position existed under the Articles.
Maryland navigated these negotiations carefully, since contesting the North Branch as the proper border would have been awkward enough when one of the line’s original surveyors was mediating the negotiations. Given that the mediator was also the nation’s foremost military hero, Maryland opted to cooperate. But it kept an ace up its sleeve. The legislation that appointed its negotiators stipulated that only when the two states agreed to their respective borders would the compact be submitted to the Maryland legislature for approval. Virginia agreed to such a discussion, but only regarding the border’s western terminus—the Fairfax Stone having been lost in the intervening years. (Decades later it was rediscovered under forest foliage.) Virginia would not discuss which branch was the border.3
Maryland knew it could take the dispute before the Supreme Court. But here again, doing so would be asking the court to invalidate a boundary that the father of the country had helped establish. Fearing the impact of “who” over “what,” Maryland’s legislature debated less confrontational options. Its deliberations, however, were interrupted by—yet again—the need for unity in wartime, this time the War of 1812.
Virginia, meanwhile, had been continuing to deed land in the disputed region. These deeds further diminished Maryland’s chances of prevailing before the Supreme Court. Maryland sensed (correctly, as it turned out) that the court would tend to rule in favor of states that had deeded land, despite an incorrectly surveyed border. The court’s privileging of deeded lands protected citizens who would be adversely affected by suddenly having their property in another state.
Maryland made a last-ditch effort in 1818. The state proposed to Virginia that it would accept the North Branch as the boundary if Virginia agreed to a survey to relocate its source—since it is from that point that Maryland’s western boundary is located. (The state that presently shares this boundary with Maryland, West Virginia, was still part of Virginia at the time.) Virginia, sensing advantage, agreed only to a survey that would reestablish the location of the Fairfax Stone, regardless of whether or not that location was truly the source of the North Branch.
In other words, Virginia won.