USA > Kentucky > A history of Kentucky and Kentuckians; the leaders and representative men in commerce, industry and modern activities, Volume I > Part 22
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Several reflections necessarily arise out of this summary of the negotiations of 1795, which were preserved secret from the govern- ment of Kentucky until voluntarily disclosed by Judge Innes in 1806 before a committee of
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the legislature. The first remark that sug- gests itself on the face of these documents is, that Judge Sebastian had been connected with the Spanish government before this time, since Governor Carondelet refers to the confidence reposed in him by his predecessor. To what extent and how long, no information exists within the command of the author, al- though he has attempted to investigate the earliest ramifications of a plot now only in- teresting for its historical curiosity. This negotiation, though terminated so abruptly by Carondelet, contrary to the urgent repre- sentations of Sebastian, was again renewed by the former officer in 1797, while the terri- torial line was marking between the United States and Spain on the south. It was again affected through the agency of Messrs. Power and Sebastian, and in a way to endanger the U'nion and peace of these states more fla- grantly and openly than on the former more covert attempt."
In the summer of 1797. Thomas Power again arrived at Louisville as the agent of the Spanish governor of Louisiana and immedi- ately communicated a letter to Sebastian desir- ing him to lay his proposals before Messrs. Innes, Nicholas and Murray. These proposals were no less than to withdraw from the Federal Union and to form a government wholly un- connected with that of the Atlantic states. To aid these nefarious purposes, in the face of a solemn treaty recently negotiated, and to compensate those who should consign them- selves to infamy by assisting a foreign power to dissolve the American Union, and to con- vert its free republican states into dependen- cies upon the arbitrary and jealous govern- ment of Spain, orders for one, or even two hundred thousand dollars on the royal treas- ury in New Orleans were offered ; or, if more convenient, these sums were to be conveyed, at the expense of His Catholic Majesty, into this country, and held at the disposal of those who should degrade themselves into Spanish
conspirators. Fort Massac was pointed out as an object proper to be seized at the first declaration of independence, and the troops of the new government, it was promised, should be furnished without loss of time, with twenty field pieces with their carriages and every necessary appendage, including powder, balls and other munitions, together with a number of small arms sufficient to equip the troops which it should be deemed expedient to raise. The compensation for these free offers of money and arms, independent of weakening the United States, was to be obtained in the extension of the northern boundary of the possessions to which Spain had so tenaciously clung and which she now so desperately and for the last time, endeavored so treacherously to retain. The northern boundary, on this side of the Mississippi, was to be the Yazoo river, as established by the British government when in possession of Florida, and which was, by a secret article in the treaty of peace, retained as the boundary between the United States and Florida, should Great Britain recover it from Spain. Eager, indeed, must Spain have been, to obtain this insignificant addition to her boundary, when she could break in upon her jealous exclusion of foreigners from her American possessions and promise the Ken- tuckians, if they would declare themselves in- dependent of the Federal government and establish one of their own, to grant them privileges far more extensive; give them a decided preference over the Atlantic states in her commercial connections with them, and place them in a situation infinitely more advan- tageous in every point of view than that in which they would find themselves were the treaty of 1795 to be carried into effect. Such were the powerful temptations presented by the Spanish government of Louisiana to some of the leading men of Kentucky, in order to reduce them into a dependency of Spain.
These offers were entertained too gravely and rejected with too much tameness for the
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honor of Kentucky patriotism, as will appear from the following detail given by Judge Innes to the legislative committee previously mentioned: "After receiving the above com- munications from Power, Sebastian visited Judge Innes at his seat near Frankport and laid them before him. The judge immediately observed that it was a dangerous project and ought not to be countenanced. As the west- ern people had now obtained the navigation of the Mississippi by which all their wishes were gratified. Sebastian concurred in this sentiment, after, it must be observed, this ex- plicit declaration of Judge Innes, who seems to have given tone to the whole transaction. Still, as Power desired an answer in writing, Sebastian prevailed on Innes to see Colonel Nicholas, saying that whatever they did he would concur in. In a few days afterwards, Colonel Nicholas was seen by the judge at Lexington, who agreed in opinion with Innes that the proposal ought to be rejected. The Colonel accordingly wrote an answer to Pow- er's proposals, which unequivocally declared they would not be concerned in any attempt to separate the western country from the United States; that whatever part they might at any time be induced to take in the politics of their country, that her welfare would be the only inducement and that they would never receive any pecuniary or other reward for any personal exertions made by them to promote that welfare. They added that they flattered themselves that everything concerning the important business of the navigation of the Mississippi would be set right by the govern- ments of the two nations; but, if this should not be the case, it appeared to them that it must be the policy of Spain to encourage by every possible means free intercourse with the inhabitants of the western country, as this will be the most efficient means to con- ciliate their good will. and to obtain, without hazard, and at reduced prices, those supplies which are indispensably necessary to the Span-
ish government and its subjects. This reply was forwarded to Sebastian and communi- cated by him to Mr. Power.
This transaction must be pronounced a dangerous tampering with a foreign power and contrary to the allegiance of American citizens. Yet the whole tenor of the conduct of Messrs. Innes and Nicholas cannot justify the slightest suspicion of their fidelity to the Union of the American states or indifference to their liberties. Their character as faith- ful, devoted friends to the freedom and hap- piness of their country had always stood high and unimpaired in the confidence of their fellow citizens. It is likewise due to the virtues of Judge Innes to declare that in all the relations of private life, no man was dearer or more idolized by the witnesses of his mild, upright and benevolent character. His public career in this country, amid its earliest difficulties, had always been one of high trust and confidence under all the changes of government; he had early been appointed judge of the Virginia district court ; the attor- ney general; judge of the United States dis- trict court for Kentucky, a member of the board of war for the western country and president of our first College of Electors. In all these responsible capacities, the conduct of Judge Innes was without reproach and raised him most deservedly high in the public esteem. He received the repeated thanks of General Washington for the discharge of high trusts. Colonel Nicholas has left the reputation of an exalted and patriotic statesman. In the con- vention of Virginia assembled to decide upon the ratification of the constitution of the United States, he took a prominent and influ- ential part, alongside of such illustrious wor- thies as Wythe, Madison and Governor Ran- dolph. In the opposition to the administra- tion of the elder Adams he bore an ardent share, as exhibited in his celebrated letter to a Virginia friend on the Alien law.
In regard to Sebastian, the other agent in
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this unhappy business, much more is known of his abilities, commanding address and most courteous, dignified manners, than of his devotion to popular government. He had, however, received a judgeship in the court of appeals at its organization in 1792. The most probable construction of this conference seems to be that Sebastian was the corrupt instrument of Governor Carondelet and that he permitted his acknowledged abilities and intimacy with Judge Innes, to swerve him from the direct and open path of public duty by listening to proposals from a foreign gov- ernment, at once derogatory to his duty as a public officer of the laws and his honor as a faithful citizen.
In the Spanishi conspiracy there are three stages and corresponding degrees of condem- nation. The first existed in 1787. when Gar- doqui communicated his overtures to the people of Kentucky, to establish a govern- ment independent of the rest of the confed- eracy; this, under the ominous and disgrace- ful condition of the existing government, might have been laudably entertained by Ken- tucky patriots. The second happened in 1795 under circumstances of accumulated trial and disappointment to the fondest and most in- dispensable hopes of western prosperity; at this time the Spanish propositions, whatever ultimate views were concealed under them, only aimed at an irregular, and, so far, un- justifiable agreement of private citizens with a foreign government for the regulation of western trade. This proposal, if it had been consummated, would, however, have amount- ed to superseding the regular operations of
the general government in the western com- merce and would have granted exclusive commercial favors to the parties to this agree- ment, inconsistent with the equal constitu- tional rights of the citizens of a common coun- try. It would, moreover, have been indicative of a foreign influence, dangerous to the liberty and peace of the Nation. But the third stage of this business, after ten years of interrupted communications, was the most indefensible of all, it was a treacherous and undisguised at- tempt of Spain to dissever this country, in the face of her recent treaty, and inconsistent with everything like the good faith which is repre- sented as a characteristic of Castilian honor. This intrigue of the provincial authorities in Spanish Louisiana is, no doubt, to be traced to European politics.
But time, at last, makes all things even, the epigrammatic philosophers have told us. Spain failed to corrupt the people of an entire state, whatever may have been her success with a few men of prominence. She saw Louisiana and the Floridas pass from her con- trol to the French and ultimately to that of the United States, the government of which she had sought to disrupt with the power of corrupting gold. In after years she saw the same United States drive her from Cuba, Porto Rico and the Philippines, her richest and almost her only colonial possessions. She learned that "the mills of the gods grind slowly, yet they grind exceeding small." Upon the possessions of the United States to- day the sun is ever shining somewhere, while Spain, no longer a world power, is left in doubt if it have any power whatever.
CHAPTER XXVI.
U. S. SENATOR MARSHALL-ATTEMPT TO DISCIPLINE JUDGES-GARRARD SUCCEEDS SHELBY- BITTER ADAMS-JEFFERSON CAMPAIGN-LITIGATION OVER LAND TITLES-INJUSTICE RIGHTED.
In 1795 Humphrey Marshall, statesman and historian, a near kinsman of that great chief justice, John Marshall, who, for so many years, presided with distinction over the su- preme court of the United States, was elected a senator in congress from Kentucky, defeat- ing John Breckinridge, who was later to dis- tinguish himself as the author of the Ken- tucky Resolutions of 1798.
Marshall was the leader of the Federalists in Kentucky, who favored a strong centralized government as against a government of the people. Mr. Breckinridge was the leader of the Republicans in Kentucky, those who, at a later date, were to be known as Democrats, reference to which has been elsewhere made in this work. Those excellent gentlemen of today who boast of their enmity to the Repub- lican party, would probably reject with scorn the statement that in the earlier days of our government their forefathers were very proud to be known as Republicans and to be led by such a statesman as John Breckinridge. The latter, had favored the adoption of the treaty with England, which excited the enmity of many against him and led to the election of Mr. Marshall.
The people of Kentucky at this time, were to be excited by an incident, the first of its kind in the history of the young state. This was an attempt, by the general assembly, to remove from the court of appeals, Judges George Muter and Benjamin Sebastian. This action grew out of a decision of the court in
which the old pioneer, Simon Kenton, was in- terested. That decision opened the way for endless litigation and threatened not only the title of Kenton to his lands, but the titles of many others. There was much excitement among the people, which culminated in the presentation of a memorial to the legislature which brought the matter before that body for consideration. Judges Mutter and Sebas- tian were summoned to appear before the house, a copy of the memorial accompanying each summons. Judge Wallace, the remain- ing judge of the court, was not summoned as he had dissented from the views of Muter and Sebastian. These latter answered the sum- mons of the house by a demand to be pro- ceeded against in the manner provided by the constitution, stating their readiness, in that event, to answer any specific charge that might be made against them.
Smith in his "History of Kentucky," quot- ing Butler and Marshall, summarizes the con- ditions as follows: "The house interpreted this answer into a refusal to appear before it and proceeded to act upon a resolution that the opinion and decree are subversive of the plainest principles of law and justice and in- volve in their consequences the distress and ruin of many of our innocent and meritorions citizens. The resolution then goes on to al- lege that the judges have decided either from undue influence or want of judgment ; as said decree and opinion contravene the decisions of the court of commissioners, who were author-
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ized to adjust under the Virginia land act of 1779, and also contradict a former decision of the supreme court for the district of Ken- tucky on a similar point :- whence arises a well-grounded apprehension that the said George Muter and Benjamin Sebastian are al- together destitute of that judgment, integrity and firmness which are essential in every judge, but more especially to judges of the supreme court ; and that there is no security for property so long as the said George Muter and Benjamin Sebastian continue as judges of the court of appeals. The house, then, in consequence of these recitals and its power to address the governor to remove any judge for any reasonable cause, which should not be sufficient ground for impeachment, deter- mined by a majority of three votes, that this address ought to be made. The subject, how- ever, was resumed in the senate and a resolu- tion was reported, censuring the judges for a decision which, the resolution asserted, pro- ceeded from a want of proper knowledge of the law, or some impure motives that appear to discover a want of integrity. This resolu- tion was adopted by a majority of one vote."
This result was reported to the other house for action, though the resolution had really failed, for want of the two-thirds majority re- quired by the constitution. In the house, it was adopted by the majority as had been the original resolution presented therein. No ac- tion by the governor appears to have been taken, but at a subsequent term of the court, Judge Muter reversed himself and joined in the opinion of Judge Wallace, but Sebastian ad- hered to his first opinion. Pending the heated discussion of this important question, George Nicholas, of counsel for the defendant, O'Connell, was alleged to have an undue in- fluence over the court, a charge that has been heard in other courts of the state since that day and involving the names of attorneys de- voting themselves to the defense of persons indicted for criminal offenses. Muter and
Sebastian remained on the bench for the time being, but Sebastian was later to leave it un- der conditions that could not be pleasing to a inan of acute sensibilities, the details of which will be noted hereafter.
The close of the term of Isaac Shelby as governor was approaching and Gen. Benjamin Logan and James Garrard, both of the Repub- lican or Democratic party, were candidates to succeed him, the Federalists appearing not to have offered a candidate. Garrard was suc- cessful by a small majority notwithstanding the great services Logan had rendered the people in the early conflicts with the Indians. Governor Garrard assumed the duties of the office in 1796 and named for secretary of state, Harry Toulmin, an accomplished gentleman of English birth, who had, at one time, been a minister of the Unitarian church. This ap- pointment was acceptable to the people on ac- count of the acknowledged ability of Mr. Toulmin, which subsequently led to his ap- pointment by the president as judge of the United States court for the district of Ala- bama.
General Washington, after eight years in the presidency, was now about to retire to the peace of Mount Vernon, there to rest as he had stated "in the shadow of his own vine and fig-tree." The Federalists named John Adams, the vice president, to succeed him; the Republicans selected as their candidate Thomas Jefferson, the secretary of state. A generous minded historian of that period has written of the contest as follows: "Honored and embalmed as these great and patriotic statesmen now are in the memories of the peo- ple of today, we find it difficult to realize that the presidential contest waged between the ad- herents on either side was as remorseless, in- temperate and embittered as was that between the adherents of Cleveland and Blaine in our own time. The truth of history thus forms a commentary of rebuke upon the uncharitable injustice and unkindness with which the char-
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acters of the most eminent and worthy men Hancock Taylor, his kinsman, was killed are assailed by partisan spirit, and, at the same time, affords grateful assurance that when time shall have dissipated the prejudices of the partisan, the virtues and nobler deeds of the great shall live to be honored, not only in the urn of memory, but in the holier consecra- tion of affection as well."
Adams was elected president by a majority of three votes in the electoral college, and Jefferson, having received the next highest vote, became vice president by virtue of the constitution as it then existed. It is interest- ing to consider the conditions that would have been presented in the recent past had there been no change in the constitutional provision in this respect. For instance, in 1896, Wil- liam Mckinley would have been elected pres- ident and William Jennings Bryan, vice presi- dent. There would have been stirring happen- ings then, or soon afterward. Happily the constitution had been changed.
At about this time there began a litigation over land titles in Kentucky, which, strangely enough, has continued in some form, to the present time. The Federal government, never having a disposable interest in Kentucky lands, made no survey thereof. It has been claimed by some, but without good reasons for the claim, that George Washington made sur- veys for private parties in the district of Ken- tucky. As is stated elsewhere in this work, that claim is not believed to be tenable. How- ever that may be, it is true that Virginia made no provision for a survey. Surveyors came from Virginia and so long as they could es- cape attention from hostile savages, made sur- veys wherever their inclinations took them. One of these surveyors less lucky than others of his calling, was Hancock Taylor, a member of the numerous and somewhat important Taylor family of Virginia. to which belonged Gen. Zachary Taylor, presi- dent of the United States, whose remains rest in Jefferson county near Louisville.
by the Indians while engaged in making a survey of Kentucky lands. In the haphaz- ard methods of surveying many claims over- lapped each other, thus bringing about litiga- tion which often lead to expenditures greater than the value of the lands in controversy. It is not uncommon at this time to read in the newspapers of suits being filed for the recov- ery of timber and coal lands in the mountains of Kentucky, such suits being based upon real or alleged surveys purporting to have been made more than one hundred years ago. As the lands at issue have been in the most part, in peaceable possession of their present occu- pants or holders for many years, the courts, in the main, have decided these suits adversely to those claiming under these old grants, or surveys, and in favor of the present holders. John Rowan, a great land lawyer of Kentucky. said that "the territory of Kentucky was en- cumbered and cursed with a triple layer of ad- verse claims." Thus the man who believed that he held a valid title to the bit of ground he and his fellow pioneers had wrested from the Indians who claimed it as their hunting ground ; the ground on which he had grown crops for the sustenance of his family; the ground in which perhaps he had buried some of that family-the victim of savage ferocity -this man had no assurance that some claim- ant who had never seen Kentucky, who had never risked his life in defense of his home and family, would not lay claim to his home and through the operations of the laws force him from its possession.
As has been stated by one writing of that period: "Under the laws and rulings of the courts, not only might the bona fide occupant who cleared the ground, erected houses, built barns, planted orchards and made fields and meadows, be evicted from his premises and di- vested of his title; but the new and foreign claimant was allowed to take possession and use of all improvements, without compensa-
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tion, and to demand of him rent for the use of the land for the time of occupancy. Against this palpable injustice the common sentiment of the people protested in tones that demanded redress."
It was a time when the "land lawyers," as certain attorneys were called in those days, "waxed fat and kicked," not, until the legis- lature taking cognizance of this great injus- tice to the suffering people, enacted a law to the effect "that the occupant of the land from which he is evicted or deprived by better title, shall be excused from payment of rents and profits accrued prior to the actual notice of the adverse claim ; provided, his possession was peaceful and he shows a plain and con- nected title in law or equity, deduced from some record, and that the successful claimant should be liable to a judgment against him for all valuable and lasting improvements made
on the land prior to actual notice of an ad- verse claim."
This was an act founded upon the princi- ples of simple justice, though the land law- yers proposed to "drive a coach and four through it" on the ground that "it was a vio- lation of the compact of separation with Vir- ginia, which declared that the rights and inter- ests of lands derived from the laws of Vir- ginia should be decided by the laws in force when the compact was made, and this pre- cluded legislation on the subject."
It is gratifying to state that the courts of Kentucky sustained the validity of the act of the legislature, yet there was not yet to be an end to litigation over old land titles. For years the courts and lawyers were busy with innumerable suits and, as has been stated, there is still occasional litigation over the va- lidity of some ancient titles.
CHAPTER XXVII.
FAMOUS RESOLUTIONS OF YOUNG KENTUCKY-ERRORS OF REPRODUCTION AND AUTHORSHIP- ALIEN AND SEDITION LAWS-ORIGIN OF KENTUCKY RESOLUTIONS - JEFFERSON AND BRECKINRIDGE RESOLUTIONS-TEXT OF JEFFERSON RESOLUTIONS .*
Of all the resolutions which have been en- acted by the law-making powers of the differ- ent states of the Union none have been so fa- mous and enduring as those adopted by the legislature of Kentucky in 1798 and 1799. The legislatures of older states have often en- tered the political arena and put forth edicts that were to settle great conflicts, but their works perished with the occasions which brought them into use and have no longer any place other than the musty pages which record them in unused journals.
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