USA > Kentucky > A history of the commonwealth of Kentucky > Part 20
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* Marshall 1, 379. t MoClung, 334. ! St. Clair's dispatch.
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his illness, was borne about every where in his litter into the thickest of the fire, giving his orders with the coolness and self- possession worthy of a better fortune; directed Col. Darke to rouse the Indians from their covert with the bayonet, and to turn their left flank. This was executed with great spirit; but although the enemy was driven three or four hundred yards, for want of numbers or cavalry, they soon returned and our troops were forced to give back in their turn. The savages had now got into the American camp by the left flank, having pur- sued back the troops that were posted there: again several charges were made with effect: but in these efforts, great car- nage was suffered from the concealed enemy and particularly by the officers. Every officer of the second regiment fell ex- cept three, more than half the army was killed: under this la- mentable slaughter, it became necessary to make another charge against the enemy, as if with a view to turn their right flank, but in fact, to regain the road from which the army were intercepted. This object attained, the retreat began and soon degenerated into a "flight," a "precipitate one it was in fact," as so honestly owned, in the simple and dignified dispatch of Gen. St. Clair. Arms were thrown away even after the pursuit had ceased; the artillery was necessarily abandoned, for not a horse was left to have dragged it off, had that have been practicable, and the General was mounted on a packhorse "which could not be pricked out of a walk." "The rout continued quite to Fort Jefferson, twenty-nine miles from the scene of action," which was reached about sun-set; while the battle ended about half after nine in the morning. The troops were then marched back in good order to Fort Washington by the 8th of the month. In this disastrous battle. which may well he called a second Braddock's defeat .* (for the loss in killed and wounded amoun- ted to nearly six hundred, about the same, as is supposed with that of the latter) all the baggage and seven pieces of artil- lery were left on the battle ground. The behavior of the In- dians on this occasion, was singularly daring; after delivering
· Judge Marshall represents Braddock's force as 1200. vol. 1, p. 8, and Col. James Smith says the Indians killed all their prisoners .-- Col. Smith's narrative.
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their fire, they rushed on with their tomahawks; one indeed, at the sacrifice of his own life, darted into the camp and tomahawked and scalped Major General Butler, where his wounds were dressing, though the Indian was instantly put to death. A variety of opinion has been expressed in regard to the numbers of the enemy engaged in this battle; varying from four thousand to ten hundred: the former estimate is ut- terly too extravagant for all our acquaintance with Indian force. Against General Wayne,* they mustered but two thousand, according to his own account; and only half that number from Col. McKee's letter to Col. England at Detroit; though he had been advancing against them for two seasons. Our own force engaged in the action, after deducting the first regiment, amounted to about twelve hundred men, exceeding in all proba- bility, the number of the Indians; but with all their gallantry and even hard fighting, wofully inferior to the enemy in etfi- ciency; had our men flanked out according to all Indian fighting when they had roused the enemy from the grass and the bogs, their opportunity would have been at least equal with them. The truth is, that the division of the force was highly danger- ous; not worth the deserters after whom a large detachment was sent; and if necessary to secure the provisions in the rear, it had been better effected by a retrogade movement of the whole body; the deficiency of cavalry or mounted men, was also most fatal; still the radical error of the campaign was forcing disaffected, unprepared troops into such hazardous war- fare. It is due to our adversaries to record, that the Indian chieft who commanded them in this great battle was Little Turtle, who had defeated Colonel Hardin in Harmar's cam- paign; assisted no doubt by the Shawanee chief Blue Jacket, and the Delaware Buckongahelas. This eminent native chief, the imitator of Pontiac in influence and war, is represented as planning this attack in opposition to many other chiefs; and that he was arrayed with silver medals and jewels from the ears and nose, in all the foppery of Indian dress mixed with Euro-
· Wayne's dispatch, Metcalf's Collection, p. 160. fIdem p. 138, and Thatcher's Indian Biography.
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pean clothes: he it was, who wisely withdrew his countrymen from the pursuit, telling them they had killed enough of the Americans. The loss of the Indians in this battle is not cer- tainly known; but in no probability, could it be proportionate to that of the whites; the former fought mostly under cover of logs or grass, while the latter were gathered into a target for the whole fire of the enemy. "An American officer who en- countered a party of thirty Indians near the battle ground, a day or two after the defeat (and was detained by them, till they believed him a friend from Canada) was informed, that the number of killed was fifty-six."*
A few weeks after this defeat, Gen. Scott having raised a volunteer corps of mounted men, is said to have dispatched some scouts to reconnoiter the enemy, who, when they had ar- rived within a few miles of the battle ground,t discovered a large party of Indians diverting and enjoying themselves with the plunder they had taken; riding the bullocks and to all ap- pearances generally drunk. This condition of things was quickly reported to their commander; a force march was er- dered, and the corps being divided into three parties, fell upon the enemy by surprise and routed them with a slaughter of two hundred killed on the spot; all the cannon and stores in their possession were retaken, and the remainder of the savage body put to flight. Gen. Scott, in this pretended retaliation upon the In- dians, is represented to have lost six men; to give greater plaus- ibility to this tale, he is said to have given the following affecting description of the fatal field of St. Clair's defeat. In the space of three hundred and fifty yards lay five hundred skull bones; and from the battle ground for five miles, the roads and woods were strewed with skeletons and muskets. This would indeed have been a retaliation almost merited by the bloody field of St. Clair; but an attentive reader must have been astounded at the greatness of the alleged carnage. Two hundred Indians killed would have been a more memorable destruction of the savages, than had ever been ascertained, (it is believed, in any one contest) during the wars of more than two centuries with the European
. Thatcher's Indian Biography, vol. 2, p. 249. S + Metcalf, p. 140.
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race. But this whole account is utterly fabulous; the Ken- tucky troops did not go beyond the Eagle creek hills in their own State, and did not cross the Ohio. An actor* in the party itself, has assured the author, that the whe's expedition to the field of battle is a fiction: the panic of the western country was too great to admit of so remarkable an enterprise to a scene, which had filled the country with dismay and with mourning.t
The elections for members of our eighth and last convention anterior to the formation of the State, took place in Decem- ber, 1701; the period of the meeting was not, however, till the first Monday in the ensuing April at Danville. In January of the latter year, Colonel Wilkinson, who had figured so largely in the affairs of Kentucky, and in her trade and defence with signal service, was appointed a Lieutenant Colonel in the second regiment of United States' troops, and took command of Fort Washington.
The old story, but of melancholy import at the time of In- dian depredations continued from Danville to Louisville; and to punish and prevent them, Congress passed an act for the de- fence of the western frontiers.
It is solacing to the feelings to turn from this constant catalogue of blood, to the rise of the useful and peaceful arts among us, which, however, could only be secured by first putting it out of the power of the Indians to interrupt their development. Higby's grist mill near Lexington, and one on Fountain Blue near Harrodsburg, were among the earliest water mills in the State. The former was built before the fall of 1785. To Messrs. Craig and Parkers, Kentucky is indebted for the establishment of the first paper mill near Georgetown in Scott county.
But this brief notice of our arts is again interrupted by the din of war; and yet the President of the United States, still in much forbearance, thought it prudent to offer the Indians peace. Indeed what had we to gain of these poor naked miserable sav-
+ H. Marshall, Es.
+ The original anueces of this mistake which have imposed on Mr. Trumbull, Mr. McClung and Dr. Metcalf, the author has not been able to detect.
-
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ages, but peace, and if they would but have granted it in good faith, by negotiation, much bloodshed might have been saved on both sides. Notwithstanding this disposition on the part of the United States, at this very time, it was ascertained "that the Cherokees of five towns would join the Shawanees in the war against Kentucky;" and yet hostilities were forbidden on the part of the whites, while the effect of pacific overtures was ascertaining.
CHAPTER XIII.
Convention of 1792-George Nicholas-First Constitution-Boundaries-First officers of Government-Compensation-Intrigues of Genet in Kentucky-Remonstrances of Gen. Washington with Gov. Shelby-French attachments in Kentucky.
On the first Monday in April, the convention for forming the first Constitution of Kentucky assembled, as previously indi- cated. The most distinguished man in this body, and who may emphatically be called the author of the first Constitution of Ken- tucky, was George Nicholas, the most eminent lawyer of his time in Kentucky; whether his learning or his powers of mind be regarded, and the father of the present Judge Nicholas. This gentleman had emigrated from Virginia, about '90 or 191, and had devoted himself with the most exemplary and untiring en- ergy to a profound and thorough comprehension of his complex and intricate profession. Presenting too, difficulties of pecu- liar and novel embarrassment in the condition of our land law, which presented a terra incognita for the sagacity of Ken- tucky judges and lawyers to explore and to coast. He is said to have devoted seven hours a day for many years in order to reach a lofty standard of professional excellence, which he had set before. his generous ambition; the allurements of company were disdained, and they were left to the hospitalities of his lady, when their entertainment came into competition with his professional studies. Col. Nicholas is said not to have been an eloanent or graceful speaker, although a powerful and impres-
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sive one, and always possessed of great influence with the courts, and of widely extended reputation with the people. Next to Col. Nicholas were judges McDowell and Sebastian and Alexander S. Bullitt, all gentlemen of talents, information and habits of public business. There ought to be some curi- osity in regard to the labors of this convention,* for although the Constitution formed by it, no longer directly governs the affairs of Kentucky; still it is one of our political muniments; and as the earliest political fabric after the Revolutionary war, possesses an interest to which no American patriot, much less no citizen of Kentucky ought to be insensible. For this pur- pose an abstract of the material parts of the Constitution of 1792, is submitted to the reader. The legislature was divided as at present into two branches, a Sente and a House of Rep- resentatives; the latter elected by the free white male resi- dents, annually; the former by electors, for four years. The electors were chosen every four years and formed a college for the choice "of men of the most wisdom, experience and virtue, in the State as Senators;" and likewise at the same time elected a Governor. The peculiar features were, that the Senate might fill its own vacancies, (almost unavoidable in a body chosen independently of any local districts:) and an executive veto on the disapproved acts of the legislature, which could only be invalidated, by a vote of two-thirds of both branches of the legislature. Another peculiar provision, not generally re- cognized in the south-western country of the United States was, that all elections were directed to be by ballot. The Supreme Judiciary both as to matters of law and equity was constituted much as at present, of one Supreme court and such inferior courts as the legislature may establish; with one sin- gular provision, that it should have original and final jurisdiction in all cases respecting the titles to land, under the present land laws of Virginia, including those which were depending in the present Supreme court for the district of Kentucky at the time of establishing the new court. It was, however, provided, that the legislature might, whenever they thought it expedient, take
+ Ita Journal still slumbers in perishable manuscript in the department of State.
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away entirely this original jurisdiction. The greatest departure from the institutions of Virginia was, the election of sheriffs and coroners, who were to be chosen by the people for three years; provided they otherwise behaved well. The general character of this Constitution evidently bears a strong similitude to that of the United States; whose merits were now widely diffused by the publication of the "Federalist," a collection of pure, dispassionate, learned and sagacious discussions of the Constitution of the United States. This joint production of Mr. Madison, Judge Jay and Mr. Hamilton; if the author were not afraid of being charged with hyperbole; he would denomin- ate, a golden commentary on a diamond text. In addition to this perennial fountain of political wisdom. may be added the diffusion of the constitutions of the other States, as storehouses, or fountains from which to draw constitutional provisions. The Senate appears to be an imitation of the Maryland body of that name; the election of Governor was drawn from the Constitu- tion of the United States, as well as the veto of that officer. On the whole, it strikes the writer as a much better balanced Constitution than our present, which has swallowed up the executive authority and left a mere shadow of restraint upon the Legislature. The Constitution of the Senate afforded the probability of a selection of more elevated character for its members, than our present local elections; the principal objee- tion seems, the power of filling its own vacancies; and in party excitements, so constant under our government, the irresistible one, of depriving the minority of any representation. The same remark may be made in regard to the election of Gover- nor; did not the actual working of our political system render the intervening link of electors, merely nominal; whenever the public mind has made its selection, which it has almost always exercised. The election of fiscal officers as sheriff's by the people, seems incompatible with the pecuniary responsibilities involved in the office. It is almost sure to make the sher- iff and his securities the victims of indulgence, inconsistent with private safety and the punctual collection of taxes. There is one effect, which the bringing of elections home to the peo-
S *
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ple may produce, that may eventuate in their corruption, or their improvement; but most probably in the foriner; it is the incessant courting their favor for every public employment. An intelli- gent and high spirited people ought to feel above the low flattery, the servile compliance and often the infamous misrepresenta- tion, that are too inevitably incident to the practice of election- - eering. It has grown with the growth of Kentucky at a most fearful rate; and does it not among other mischievous effects, tend to supersede the popular superintendence of its own affairs by tacitly surrendering them to professed candidates? Let discussion take its widest range within the limits of deco- rum: but let the parties whose qualifications and merits may be the subject, be kept out of the interested, and consequently
intemperate participation. The author entertains no great faith in institutions to protect the people against the mischiefs of their own ignorance or vice; and above all, by recognizing different classes of interest, whether of property or rank; the only effectual influence, which can radically ameliorate society is, the diffusion of moral and intellectual cultivation with the protection of honest industry in the enjoyments of its fruits. Still good government is an institution, which affords a reason- able probability for bringing the intelligence and virtue of so- ciety into the management of its affairs consistently with the will of the people. No free government, and therefore gener- ally no good one, can protect the people against their own will, however corrupt and misdirected it may be; all then, which the machinery of government can effect, is to check the hasty and rash impulses of the popular sentiment for some short time; till it has had the opportunity to correct itself. In reverencing the ultimate sovereignty of the people, we should, under the influence of a genuine patriotism, abstain most religiously from inciting the people to dispense with these safeguards to the salutary exercise of their authority. Power, let it ever be im- pressed on the hearts of a free people, is just as susceptible of disregard and injustice to the rights of others in their hands, as in governments of more exclusively individual authority. When so administered, as to forget or to violate the rights of others;
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popular power becomes as rank tyranny and as gross oppres- sion, as at the hands of kings and of princes. Right and justice are founded in distinctions, as eternal as the Almighty Mind which created them; and no power, whether clothed in impe- rial purple or the more unpretending, though not the less sig- nificant insignia of a republic, can consecrate oppression, or lessen the wickedness of injustice. Long may these sober truths protect the American people from corruption by their flat- terers, and save them from the enormities, which disgraced the free governments of antiquity, as well as the hideous misnamed republic of modern France.
On the 19th of April the Convention closed their labors, and on the Ist of June, 1792, the political existence of Kentucky, was consummated on an equality with her co-States, that were members of the American confederation. The boundaries of Kentucky were recognized in the act of separation on the part of Virginia, as the same which then separated the District from the residue of the Commonwealth. As these have not, how- ever, been specially mentioned, it may not be improper to state, that on the cast, commissioners on the part of the two States interested, on the 14th of October, 1799, established the boun- dary to commence at the top of the Cumberland mountain, where the Carolina, now the Tennessee line, crosses the same; and pursuing a north-east direction to the north-eastwardly branch of Sandy river to the main west branch and down the same to the Ohio; and on the south, in 1820, Walker's line as run in 1779 and 1780, as far as the Tennessee river, and thence the line run by Alexander and Munsell under the authority of Kentucky to the Mississippi river below New Madrid; on the west, the Mississippi, and on the north, the Ohio river to the beginning, were established.
On the fourth of June, the Governor and Legislature assem- bled at Lexington; Isaac Shelby having been chosen for the former high office by the college of electors and Alexander S. Bullitt and Robert Breckenridge, both of Jefferson county, were selected as speakers of the two houses; the former of the Sea- ate, the latter of the House of Representatives. On the sixth,
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Governor Shelby met the Legislature in person, as was then usual, in imitation of the ancient practice of the British kings, as well as of the colonial governors. A mode of communica- tion, which however calculated it may be for the display and parade suited to a brilliant monarchy, is most unfit for the busi- ness intercourse of a simple and practical government. Under this method the interests of the public were prematurely agi- tated in replies often surprising, and committing the legislative bodies to the approbation of measures, before they could well be understood, or fairly have come before the minds of the rep- resentatives. It was well changed under the Presidency of Thomas Jefferson for the mode of intercourse by message, the same, which had been practiced at all times, upon the business of the current session. In this first communication of a Gov- ernor of Kentucky, the importance of establishing both private and public credit was represented, as the most efficient means of promoting the prosperity of the rising Commonwealth. To secure the first, a speedy and impartial administration of justice was recommended; and a scrupulous adherence to all public engagements for the second. Next in importance to this funda- mental policy of all well regulated States, that of adjusting land titles was represented as most entitled to the earliest regards of the Legislature.
In organizing the government, Jas. Brown, the brother of John Brown, the venerable and honored statesman of Kentucky, and himself subsequently so distinguished in the highest legislative and diplomatic services of the United States, was appointed Secretary of State, and Geo. Nicholas, Attorney General : our first two Sen- ators in the councils of the Union were John Brown, the first and only member from Kentucky of the old Congress; and John Ed- wards who shortly afterwards disappeared from public life. An ap- pointment of commissioners for selecting a seat of government, a matter of great jealousy and contention between the people of the opposite sides of the Kentucky river, was then made by the House of Representatives, agreeably to the Constitution, by nomina- ting twenty-one persons, from whom the delegations from the counties of Mercer and Fayette, alternately struck off one, until
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five gentlemen were left; these were Robert Todd, John Ed- wards, John Allen, Henry Lee and Thomas Kennedy, any three of whom might fix the seat of government. "A majority of the commissioners met soon after their appointment, and fixed on Franfort, as the proper place;" which, most happily for the interests of the State, "required a concurrence of two-thirds of each branch of the legislature to change to any other point." The perfect eligibility of any place as a seat of government, is a subordinate consideration to its permanence; no spot can furnish the accommodations and conveniences of which it might otherwise be capable; and which are so much required at a seat of legislation; when the continuance of the government is held in suspense; and liable to be changed at every gust of caprice or passion. The waste of treasure in public buildings, the injury and destruction to public records, serious as these mischiefs are, diminish in comparison with the paralyzing effects of a fluctuating policy, which works all the practical mischiefs of the grossest perfidy. A state house of stone, sufficiently uncouth, was soon erected at the new seat of government, which was paid for principally, by the proceeds of private contribution; an edifice of brick was erected at the expense of the State for the accommodation of the Governor.
At this session the judiciary was organized, at all times one of the most important departments of government; indeed it is that, which principally brings the force of society into contact with the individual, by affecting his life, his liberty, or his prop- erty. The court of Appeals was directed to consist of three judges,* one of whom was to be styled chief justice of Ken- tucky, and any two of whom were to form a quorum: subordi- nate to this Supreme court, were county courts likewise created by the Constitution, composed of the justices of the different counties, any two of whom were to constitute "a court of quar- ter sessions, and any three a county court. The justices were conservators of the peace. and had jurisdiction of all cases of less value than five pounds (equal to sixteen dollars and
* The first Judyes were Benjamin Sebastian, Caleb Wallace and Harry Innes as Chief Justice, the latter declining the office, George Muter was appointed in his place and Iones was appointed United States' district Judge.
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