Multiple colonial charters, two negotiated settlements by the states in 1785 and 1958, an arbitrated agreement in 1877, and several Supreme Court decisions have defined how Maryland and Virginia would deal with the Potomac River as a boundary line, and shaped the boundary on the Eastern Shore (separating Accomack County in Virginia from Worcester/Somerset counties in Maryland).
The Potomac River divides Maryland and Virginia, but Virginia does not own half of the Potomac River. The Maryland-Virginia boundary is next to the Virginia shoreline at the low-water mark in most places; the line separating Maryland from Virginia is not in the middle of the river.
As a result of this peculiar boundary:
- in the 1950's, when gambling and liquor-by-the-drink were legal in Maryland but not Virginia, Colonial Beach and Prince William County had slot machines located on boats docked in the river off the Virginia shoreline. (Customers would park in Virginia, walk out a pier, and "step across the line" into Maryland.)
- today, if you want to get married on a boat in the middle of the Potomac River while looking at Mount Vernon, you need a Maryland marriage license.
- bridges crossing the Potomac River are almost completely in Maryland... and the dreams of Virginia transportation planners to build new bridges across the Potomac River in Loudoun/Prince William counties can be blocked by Maryland, which has expressed clear opposition to road projects that would extend urban sprawl further into Montgomery/Charles counties.
Between 1606-1609, in the three charters issued by James I, most of what is now Maryland was included within the boundaries of the Virginia colony. After James I revoked Virginia's charter in 1624 and converted it into a royal colony, there were no constraints on how the king could alter the boundaries of Virginia.
In 1632, King Charles I reduced the size of Virginia when he granted a charter to Cecil Calvert, Baron of Baltimore. Virginia lost control of the northern part of the Delmarva Peninsula and the top of the Chesapeake Bay, plus all land north of the Potomac River. The Calverts named their new colony after the wife of Charles I, Queen Henrietta Maria. An earlier colony founded by George Calvert on the island of Newfoundland was called Avalon, but Maryland provided some political advantage by honoring the king's wife. Virginia colonists had sought royal favor in the same way, naming their colony after the "virgin queen" Elizabeth and naming the first town after James I.
The original plan of Charles I had been to reward Cecil Calvert's father George. George Calvert had considered asking the king for land between the James and Chowan rivers, picking off the southern end of the Virginia colony. Virginia officials, and others in England who hoped to obtain their own grant for the Carolinas, steered Calvert and King Charles' officials into choosing land far to the north of the Virginia settlements on the James River. Encouraging Calvert's Catholic settlers to occupy the uncolonized land north of the Potomac River would help England compete with the Dutch, who were starting to settle in the gap between New England and Virginia. (The area was not "unoccupied," but land claims by Native Americans were not a factor in drawing the boundaries of English colonial charters.)1
George Calvert anticipated getting the entire Delmarva Peninsula in his grant. However, he died before the paperwork was finalized, and royal officials realized that Virginia colonists had already settled in what today are Accomack and Northampton counties. When George's son Cecil Calvert got his charter for Maryland, the Maryland boundary on the Eastern Shore was drawn from Watkins Point east to the Atlantic Ocean. The southern part of the Eastern Shore was excluded and remained within the Virginia colony's boundaries.2
the 1632 Maryland charter defined the new colony's southern boundary on the Eastern Shore starting at a point in the Chesapeake Bay, then by a Right Line drawn from the Promontory, or Head-Land, called Watkin's Point, situate upon the Bay aforesaid, near the river Wigloo, on the West, unto the main Ocean on the East
(NOTE: map is oriented with West at the top, and North is to the right)
Map Source: Library of Congress, Virginia / discovered and discribed by Captayn John Smith, 1606
Delmarva Peninsula, without political boundaries later imposed by English officials
Map Source: US Fish and Wildlife Service, Wetlands Mapper
in 1778, Watkins Point was still identified on maps of the Eastern Shore
Map Source: Library of Congress, This map of the peninsula between Delaware & Chesopeak Bays, with the said bays and shores adjacent drawn from the most accurate surveys
The northern boundary of the new colony of Maryland was defined by drawing a line due west from the ocean along the 40 degree parallel, the southern boundary of the New England grants, until getting to a point due north of the beginning of the Potomac River. In reality, the line was located further north, where Philadelphia is now located. After William Penn was granted a charter for a new colony in 1681, Maryland and Pennsylvania argued about their border until a survey was completed in 1767 by Charles Mason and Jeremiah Dixon, the Mason-Dixon Line.
The western boundary of Maryland was based on the location where the Potomac River started, along a line running directly south from the 40th parallel (at least that's what they thought in 1632...) to the spring at the headwaters of the Potomac River. The Deakins Line was surveyed in 1788, starting at the sandstone monument (the "Fairfax Stone") that had been erected in 1746 and moving north to the Pennsylvania-Maryland line.
As defined in the 1632 charter, the Maryland boundary crossed the river to the southern bank. Key language in the grant from Charles I was that Maryland's western boundary kept going south and crossed the Potomac River to its southern shore, before following the southern edge of the Potomac River to the Chesapeake Bay. The western boundary extended:3
Maryland's border was defined in 1632 charter by a line running south from 40th parallel (supposedly...) to the start of the Potomac River, then unto the further Bank of the said River before following the southern edge of the Potomac River to the Chesapeake Bay
Map Source: US Fish and Wildlife Service, Wetlands Mapper
No one knows why the 1632 charter was so generous to Maryland, giving the entire Potomac River to Maryland instead of drawing the boundary in the middle of the river. The decision may have been intended to give Maryland officials an extra measure of control. George Calvert had visited Jamestown with his family in 1629, and the Virginia colonists had demonstrated their distrust of him both as a Catholic and a potential rival.
Another possibility is that no one in London cared much about the details of the boundaries, far across the Atlantic Ocean. At least some people thought the boundary should be drawn at Potomac Creek or Aquia Creek, in modern Stafford County. It is hard to believe such efforts reflected ignorance of which stream was the main Potomac River. The first European known to have explored the area, John Smith, had clearly recognized in 1608 which creeks were smaller tributaries and which channel was the main Potomac River.
if Potomac Creek/Aquia Creek had been declared the main stem of the Potomac River, all of Northern Virginia would have been part of Maryland
Source: Library of Congress, A mapp of Virginia discovered to ye hills, and in it's latt. from 35 deg. & 1/2 neer Florida to 41 deg. bounds of New England (by John Ferrar, around 1667)
first map showing Maryland placed the boundary on the south side of Aquia Creek in modern Stafford County -
and if that had been accepted, what is currently Northern Virginia would instead be Southern Maryland today
Source: Maryland State Archives, Nova Terrae-Mariae tabula (by Jerome Hawley and John Lewger, 1635)
Complicating the status of the river, in 1688 James II modified the boundaries of the "Northern Neck" grant made originally by Charles II in 1649, and renewed as the Hopton grant in 1667. James II gave Lord Culpeper the entire Potomac River in 1688:4
In 1776, the first Constitution of Virginia acknowledged that the Maryland charter was valid, but avoided defining the limits of that state's claim to the Potomac River. The 1776 Virginia constitution did assert the right of Virginians to exercise free navigation on the Potomac and Pokomoke rivers, and to use the water and shoreline ("riparian rights"):5
Left unclear was determination of the location of the actual line on the south bank, the "further Bank of the said River" (in Latin, ad ulterioram predicti fluminis ripam).
Virginians were not legalistic about defining the edge of the shoreline, or even respectful of Maryland's claim to the entire river. In tidewater, the rise and fall of the tides can produce a wide, sandy beach/mudflat on the river's edge. Above the high water mark, defined by the edge of vegetation along the shoreline, the upland was clearly Virginia. Below the low water mark (the normal edge of the water when the tide is out, "the point to which the water recedes at its lowest stage" according to Black's Law Dictionary), the riverbottom was clearly Maryland. The shoreline itself could be interpreted as being in Virginia - or in Maryland.6
A literal interpretation of the 1632 grant to Lord Baltimore might suggest the boundary was set at the high water mark, but Virginia landowners interpreted the right to "navigation and use" of the Potomac to include using the shoreline down to the low water mark. Wharfs were built on the shore at plantations such as Stratford Hall, with no consideration of paying Maryland taxes for the shoreline real estate. George Washington operated a herring fishery in the Potomac River offshore from Mount Vernon. It provided a more reliable source of income than growing tobacco and wheat, but he never asked for permission or paid Maryland anything for "their" fish.7
After the American Revolution, the new United States was only a loose confederation, governed by a weak national Congress. Maryland had refused to ratify the Articles of Confederation until 1781, maneuvering Virginia and other states into ceding their western lands claims (beyond the Ohio River) to the new national government first. Maryland could have asserted its right as an independent state and its claim to the Potomac River, and tried to tax commercial traffic going to Virginia ports such as Alexandria.
However, it was not clear how Maryland could enforce any claim based on the now-rejected authority of English kings. Virginia still remained the largest, most-populated state in the new nation, and the "United States in Congress Assembled" under the Articles of Confederation might not suport ancient land grant claims by Maryland against Virginia.
In 1785, there was no judicial referee to resolve interstate conflicts. The idea of a Supreme Court, operating as an independent third branch of government, would not be established until the Constitution was ratified in 1788 and the court asserted its independence over the next 20 years. It was unclear how a weak national Congress could force Virginia to comply with Maryland's interpretation of its 1632 charter.
Besides, Virginia had real leverage to convince Maryland to resolve conflicting claims to use of the Potomac River: Virginia owned the mouth of the Chesapeake Bay. Virginia was an independent state that could tax all Maryland ships coming from the Atlantic Ocean into the Chesapeake Bay, before they sailed north to "Maryland's" Potomac River.
The tradeoffs to reach agreement were based on the shape of the bay as well as the colonial boundaries. While Maryland might own the Potomac River, Virginia controlled the entrance to the Chesapeake Bay. Under the Articles of Confederation, Virginia could impose a high tax on all vessels sailing between Cape Charles and Cape Henry on the way to the Potomac River.
All of Maryland's significant ports were on the bay and the rivers draining into the bay, such as Annapolis and Baltimore. There were no good harbors on Maryland's Atlantic coastline. As a result of natural and political geography, nearly all commercial traffic going to (or from) Maryland could be forced to pay an import or export fee on their cargoes passing through Virginia's portion of the Chesapeake Bay.
Bottom line: each state could wreak economic havoc on the other.
length of Chesapeake Bay controlled by Virginia
Source: Color Landform Atlas of the United States
The solution was to negotiate, in order to encourage rather than block each state's commerce and economic development. Maryland supported chartering the Potowmack Company in 1784, which would benefit both states, and agreed to send delegates in 1785 to a meeting regarding commercial use of the river.
Each state appointed commissioners to negotiate a compact. The commissioners met initially in Alexandria, then moved to Mount Vernon. In part because George Washington hosted the discussions (even though the Virginia General Assembly had not designated him as a commissioner), the negotiators crafted the Compact of 1785 and the General Assemblies of both states ratified the deal.
Maryland and Virginia agreed in the Compact of 1785 that neither state could interfere with the other's trade or fishing on the Potomac River. Virginia and Maryland also agreed to allow each other free access on the Chesapeake Bay. The first provision in the Compact of 1785 stated:8
Through that statement, Virginia traded away its theoretical ability to impose tolls on Maryland vessels entering the Chesapeake Bay between Cape Charles and Cape Henry, near Norfolk. In exchange, Virginia was guaranteed free access to the Potomac River.
The challenges in resolving the Virginia/Maryland issues through bi-state negotiations revealed clearly that the new national government was not capable of dealing with multi-state concerns. To comply with the Articles of Confederation, Virginia and Maryland were supposed to get approval by a majority of the Congress, where other states could be competitive rather than cooperative and potentially block commercial development in the Chesapeake Bay region:9
The commissioners called for another meeting among all the states to address larger interstate commerce issues. This led to the Annapolis Convention, which begat the Constitutional Convention in Philadelphia in 1787, which begat the Constitution and the current political structure for the United States of America. The Virginia/Maryland border dispute triggered the conflict resolution process that led to the Commerce Clause authorizing the new Federal Government to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
when the Compact of 1785 was negotiated, the economies of Virginia and Maryland were both dependent on exporting tobacco by ships to Europe
Source: National Park Service, Jamestown, Virginia National Historic Site - The Townsite and Its Story
To get a sense of the challenge under the Articles of Confederation to resolve the interstate conflict over the rights to the Potomac River, look at today's debates over the relative authority of individual states in the European Union. In 1785 it was not clear that the 13 new states would remain under one federal government, just as the future of the European Union is unclear today. The development of the Constitution was not pre-ordained, and the leaders of the newly-independent states had no crystal ball showing that a new Constitution would change the authorities of the individual states.
Like the Articles of Confederation, the new Constitution required that interstate compacts had to be approved by the national Congress. No two states would be allowed to cut side deals without concurrence by all the other states. However, the Compact of 1785 was "grandfathered in" because it preceded adoption of the national Constitution. (In 1958, another compact between Maryland-Virginia to resolve boundary issues was ratified by the Congress.)
|Maintaining ownership of the Potomac River was the only boundary fight in which Maryland managed to maintain most of its original claims. It lost battles with Pennsylvania to define the eastern and northern sides of the colony.
The 1632 charter for Maryland defined its boundary along the 40th parallel of latitude. The 1681 charter for Pennsylvania used the same line. The surveying surprise was that the 40th parallel was further north than expected, and ran through what became Philadelphia.
If the Calverts had succeeded in blocking claims of the Penns, then Maryland might have ended up controlling all the territory south of the 40th parallel. If Maryland's claim to that line was upheld, it would control land on both sides of the mouth of the Delaware River, comparable to Virginia's control of Cape Charles/Cape Henry at the mouth of the Chesapeake Bay.
All ships sailed to Philadephia through the Delaware Bay. In theory, under the Articles of Confederation, Maryland could have taxed all ships going to and from the Delaware River to the Atlantic Ocean.
In reality, the Penns forced the Calverts to accept a boundary line south of Philadelphia, 15 miles below the 40th parallel. (The Mason-Dixon line ultimately defined the northern border of Maryland.)
Pennsylvania also blocked Maryland from acquiring control of three counties along the western shore of Delaware Bay, territory that had been settled earlier by Swedes and Dutch. The three counties ended up becoming the separate colony of Delaware, while the eastern shore of Delaware Bay - including Cape May - ended up as part of New Jersey.
Delaware Bay and the southern 1/3 of New Jersey could have been part of Maryland
Map Source: US Fish and Wildlife Service, Wetlands Mapper
The Compact of 1785 resolved the dispute over navigation and taxation, and made clear that Smith’s Point was the mouth of the Potomac River and the starting point for the line across the Chesapeake Bay. Maryland made no effort to extend its claim south to the location of Cinquack, as marked on John Smith's map.10
However, the Compact of 1785 did not fix the location of the boundary line along the Potomac River, or clarify if the high-water mark or the low-water mark should be used. Ultimately, a lawsuit in the District of Columbia led to a US Supreme Court decision that determined ownership of the shoreline, and surveys that marked a fixed boundary on the southern bank of the Potomac River.
In 1829, a canal was opened to connect the northern tip of the Chesapeake Bay to the Delaware Bay. The Chesapeake and Delaware Canal bypassed the passage of Baltimore-bound shipping through Virginia, via the natural opening at Cape Charles/Cape Henry, and now carries 40% of all the shipping to the port of Baltimore.11
Had the Chesapeake and Delaware Canal been built before the Compact of 1785, ships would have been able to sail between Baltimore and the Atlantic Ocean without having to use the mouth of the Chesapeake Bay and sail through Virginia waters. Without the leverage of control over traffic in the lower Chesapeake Bay, who knows how the Maryland/Virginia negotiations over the boundary may have evolved...
Determining exactly where to draw the boundary line was a political, surveying, and legal decision. Rather than ask the Supreme Court to make a decision, Virginia and Maryland agreed to a commission of arbitrators. Their final decision is known by the name of two of the three commissioners, Jeremiah S. Black of Pennsylvania and Charles J. Jenkins of Georgia. The third commissioner, James B. Beck of Kentucky, did not agree with the boundary decision for the Eastern Shore section.
In the Black-Jenkins arbitration decision of 1877, Maryland's boundary was determined to be the low-water mark on the southern shore of the Potomac River, and islands within the river were owned by Maryland. Virginia had no right to sell submerged lands underneath the Potomac River, but as noted in a later US Supreme Court decision:12
To minimize confusion about the location of the low water mark, the line was defined as a fixed boundary established by the Matthews-Nelson Survey of 1927. In that survey, the state boundary did not follow the shoreline exactly. Shallow-water embayments were granted to Virginia, and the Maryland-Virginia state line crossed between points of land (headlands) jutting into the Potomac River.
Colonial Beach is part of Westmoreland County, Virginia... but the Potomac River just offshore is located in Charles County, Maryland
Map Source: US Geological Survey (USGS), Colonial Beach North 7.5 x 7.5 topographic map (2011)
Matthews-Nelson Survey of 1927 granted embayments to Virginia, as shown downstream from Colonial Beach
Source: USGS, Colonial Beach South 7.5x7.5 topographic map (2013)
The 1877 arbitration decision, which would have an impact on Fairfax County in 2003, also said:13
In 1940, Congress gave its consent to a new interstate compact for managing the Potomac River. Maryland, West Virginia, Pennsylvania, Virginia, and the District of Columbia entered into a Congressionally-approved compact that created the Interstate Commission on the Potomac River Basin (ICPRB) and the Potomac Valley Conservancy District, to address water quality and related land resources issues in the Potomac River watershed.
In the 1950's, the dispute between Maryland and Virginia over rights to oysters and other resources in the Chesapeake Bay/Potomac River turned violent again. Both states armed patrol vessels and the "Oyster Wars" led to a effort to abrogate the Compact of 1785. Virginia started a lawsuit at the Supreme Court, but state officials were able to negotiate their differences and replaced the Compact of 1785 with the Compact of 1958.
The 1958 agreement established the Potomac River Fisheries Commission, defined the jurisdictional boundaries for that commission's powers (in great detail for the Maryland side of the Potomac River, but simply referencing the mean low waterline of the Potomac River on the Virginia side, as marked by the Matthews-Nelson Survey of 1927). After both the Virginia and Maryland legislatures and the Maryland voters approved the 1958 agreement, Congress affirmed it in 1962.