USA > Kentucky > A history of the commonwealth of Kentucky > Part 24
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After receiving the above communications from Power, Se- bastian visited judge Innes, at his seat near Frankfort, and laid them before him. The judge immediately observed, "that it was a dangerous project and ought not to be countenanced; as the western people had now obtained the navigation of the Mis- sissippi, by which all their wishes were gratified. Mr. Sebas- tian concurred in sentiment, after, it must be observed, this ex- plicit declaration of judge lunes, 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;
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saying, "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 Power's communication, which unequivocally de- clared 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 their only inducement, and that they would never receive any pecuniary or other re- ward for any personal exertions made by them to promote that welfare." They added, "that they flattered themselves, that every thing concerning the important business of the navigation of the Mississippi, would be set right by the governments 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 the free intercourse with the inhabitants of the western country; as this will be the most etlicient means to con- ciliate their good will, and to obtain without hazard, and at re- duced prices, those supplies which are indispensably necessary to the Spanish government, and its subjects." This reply was forwarded to Mr. Sebastian, and communicated by him to Mr. Power.
This transaction must be pronounced a dangerous tampering with a foreign power, and contrary to the allegiance of Ameri- can 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 for faithful, devoted friends to the freedom and happiness of their country, had ever 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. Hist public career in this country, amidst its carli- est difficulties, had always been one of high trust and confi-
« Dated Lexington, Sept. 4, I.S. Rep. Journal, 180G.
[ D. Clark's letter to Judge Innes. Palladium, April 7, 1808.
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dence. under all the changes of government: he had early been appointed judge of the Virginia district court, then attorney general. judge of the United States district 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 responsi- ble capacities, the conduct of' judge Innes was without reproach, and raised him, most deservedly, high in the public esteem, and received the repeated thanks of General Washington for the discharge of high trusts. Colonel Nicholas has left the reputa- tion of an exalted and patriotic statesman In the convention of Virginia, assembled to decide upon the ratification of the present constitution of the United States, he took a prominent and influential part along side such illustrious worthies as Wythe, Madison, and Governor Randolph. In the opposition to the administration 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 Mr. Sebastian, the other agent in this unhappy business, much more is known of his abilities. commanding ad- dress, and most courteous, dignitied manners, than 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 Mr. Sebastian was the corrupt instrument of Governor Caron- delet, and that he perverted his acknowledged abilities and in- timacy with judge Innes, to swerve him from the direct and open path of public daty, by listening to proposals from a for- eign government, at once derogatory to his duty as a public officer of the laws, and his honor as a faithindl citizen. Over- powering indignation should have flashed Sebastian's own aban- donment of his duty, as one of the supreme judges of Kentucky, home to his conscience, and instantaneous denunciation to the constituted authorities, should, at all hazards, have exposed his treachery to his government.
Thus might the commonwealth have been shielded from " harboring a traitor and a Spanish pensioner on the highest seats in her temple of justice; and at the same time it would
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have protected the fame of himself and Col. Nicholas from the blot of private citizens listening to plans of a foreign Govern- ment, destructive to the peace and honor of their country. Yet the author is not unaware of the difficulty of denouncing friends, even when their conduct is most disapproved; but the merit is enhanced by the difficulty, and duty ought to be superior to personal attachment.
In this Spanish conspiracy, there are three stages and corres- pondent degrees of condemnation. The first existed in 1787, when Don Gardoqui communicated his overtures to the people of Kentucky, to establish a government independent of the rest of the confederacy; this, under the ominous and disgraceful con- dition of the existing government, might have been laudably en- tertained by Kentucky patriots. The second happened in 1795, under circumstances of accumulated trial and disappointment to the fondest and most indispensable 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 unjustifiable agreement of private citizens with a foreign government, for the regulation of western trade. This pro- posal, if it had have been consummated, would, however, have amounted to superseding the regular operations of the general government in the western commerce; and would have granted exclusive commercial favors to the parties in this agreement, inconsistent with the equal constitutional rights of the citizens of a common country. It would. moreover, have been intro- ductive of a foreign influence, dangerous to the liberty and peace of the nation. But the third stage of this business, after ten years interrupted communications, was the most indefensi- ble of all; it was a treacherous and undisguised attempt of Spain to dissever this country, in the face of her recent treaty, and inconsistent with every thing like the good faith which is represented as characteristic of Castilian honor. This intrigue of the provincial authorities, in Spanish Louisiana, is no doubt to be traced to European politics.
On* the 19th of August, 1796, France and Spain concluded + Fitkin's United States, 2 vol .- page 484-483.
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1 treaty of alliance, offensive and defensive, guarantieing all the territories they possessed or should possess. "Soon after this, Spain complained to the American government, that the British treaty had sacrificed her interests, as well as those of France-particularly in abandoning the principle, that free ships make free goods-and by enlarging the list of contraband; and she made this a ground for delaying the delivery of the posts on the Misssissippi, and running the line according to the treaty of 1795." In this remonstrance, Spain seems to have been influenced by a wish to maintain the interests of France in regard to the Floridas and Louisiana, which Mr. Munroe mentions, were expected to be obtained by the French government; "as well as from an expectation that the western people might still be induced to separate themselves from their Atlantic brethren." Such expectations might well be enter- tained from the exertions of her agents in the United States from 1787 to 1797.
While Sebastian was procuring the answer of Messrs. Innes and Nicholas to the propositions of the Spanish Governor of Louisiana, Power proceeded to the head-quarters of Wilkin- son, then at Detroit, with a letter of remonstrance from Caron- delet, against taking possession of the military posts on the Mississippi, "until it should be ascertained whether, before delivery they were to be dismantled." This was his ostensible object, his real one has been seen by his communications with Sebastian, and by his instructions from the Spanish Governor. Power delivered his letter to Wilkinson, but without effecting any delay, on his part, in the execution of his duty; and the former was, contrary to his remonstrances, compelled to return by way of Vincennes to Fort Massac, under the escort of Captain Shaumburg of the American army. The Governor of the north-western territory had orders from the government of the United States, (which had got information of this insidious mission,) to arrest Power and send him to Philadel- phia. Thus terminated the repeated attempts of the Spanish Government to wrest the western country from the Union, after she had been frustrated in the united efforts of both
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branches of the House of Bourbon, to exclude these young and thriving states from the Mississippi, at the peace of Paris, in 1782.
It is now necessary to retrace the course of events, after the first propositions of Power, which have been narrated beyond the current time, in order to preserve them unbroken. On the assembly of the legislature, in 1795, General Adair introduced several resolutions expressive of the sense of the country in regard to the navigation of the Mississippi, the delivery of the western posts, and the duty on distilled spirits. On the failure of the government of the United States to obtain the two former · objects, it was declared "the duty of the Kentucky people to use every necessary exertion, on their part, in concert with, and to render effectual any other measures which may be adopted by the general government for obtaining these interesting objects." The resolutions passed both houses; this cordial disposition towards the government of the United States was farther manifested by the selection of Mr. Humphrey Mar- shall, a sagacious statesman, and devoted friend to the Wash- ington administration, as a senator of the United States, in opposition to the brilliant powers of John Breckenridge.
At this session an attempt was made to remove George Muter and Benjamin sebastian from the bench of the court of Appeals, by an address of two thirds of hoth houses of the legislature. The cause of this delicate interference with a high judicial tribunal, arose out of an opinion and decree of the court of Appeals. on the subject of claims under cer- tificates issued by the commissioners for settlements and pre- emptions, in the case of Kenton against McConnell. No court could be invested with higher jurisdiction, for their duration, than these tribunals appointed to determine the " claims of the settlers to the lanis assigned them by the benevolent policy of Virginia, in consideration of actual set- tlement or improvement in ine country amidst ite dangers and hardships. Such meritorious uitles must naturally have been regarded with the fondest affretion; won as they had been at the hazard of every thing dear to man. When, therefore, tue
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decisions of a court, which were made final, where not caveated by the land law of 1779, creating them; and whose conclusive character had been decided by the old District court, were to be opened to all the perilous uncertainty, vexation, and expense of legal controversy; it was not at all strange, that the people and the legislature should be agitated. A memorial was laid before the legislature, which brought the matter regularly be- fore that body. The House of Representatives determined to summon the two judges before them. This was done, and a copy of the memorial annexed to the summons was served on the two obnoxious judges; Wallace, the third judge, having objected to the decree. The former gentlemen addressed the Speaker of the House, informing him, that they could find no charge against them, that they could or ought to answer; that the legality of an adjudication of the court of Appeals, or an opinion of any judge thereof, in any cause, could not be pro- perly or constitutionally examinable by a single branch of the legislature : and they protested against a legislative revision of judicial decisions. But they said, justice to the judge, and to the independence of the court, demanded that they should be proceeded against in the manner pointed out in the constitution, in which mode they felt themselves ready to answer any specific charge. The House interpreted this letter into a refusal to appear before it, and proceeded to act upon a resolution, which had been laid upon the table previous to the response of the judges, reciting the illegality and prejudicial character of the decision; it alleged, that "the opinion and decree are subversive of the plainest principles of law and justice, and involve in their consequences, the distress and ruin of many of our innocent and meritorious citizens." The resolution then goes on to allege that the judges "must have done so. either from undue influ- ence or want of judgment; as said decree and opinion con- travene the decisions of the court of commissioners, who were authorised to adjust and settle under the said recited act, (meaning the Virginia land act of 1779,) and also contradict a former decision of the late Supreme court for the district of Kentucky, on a similar point-whence arises a well ground- Y
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ed apprehension that the said George Muter, and Benjamin Sebastian are altogether destitute of that judgment, integrity, and firmness. which are essential in every judge; but more especially in 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 their power to address the Governor to remove any judge for any reasonable cause, which should not be sufficient ground for impeachment, determined, by a majority of three votes, that this address ought to be made. The subject, however, was resumed in the Senate, and a resolution, censuring the judges for a decision, which the resolution asserted, "from what appears at this time, proceeded from a want of a proper know- ledge of law, or some impure motives, that appcar to discover a want of integrity," passed by a majority of one vote. This was most unconstitutionally transmitted to the other House for its action, when the question had fallen from a want of the constitutional majority of two-thirds. It passed by the same majority, as the first resolution introduced on this subject into the House.
This is, it is believed, the earliest dispute between the Legislative and Judicial departments of the state govern- ment; which at a more recent period appeared to threaten the commonwealth, with anarchy and confusion. Nor ought the occasion to pass without remarking, that, however cor- rect the legal principles contended for by the Legislature may be, and indeed they appear to be very manifest; still there is a system of official intimidation, and overawing, evidenced by the legislative proceedings, after constitutional majorities could not be obtained, which is utterly incon- sistent with the constitutional rights of the Judiciary, and which, in a popular excitable government like ours, is calculated to overthrow all the barriers against tyranny and unlawful violence, at the feet of the legislature. The hold which the members of this body so justly possess, on the affections of their neighbors and friends, with whose bosoms
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they are in such constant and familiar intercourse; should at the same time subject its steps to the vigilant scrutiny of the community; that they do not pervert the public confidence to the purposes of individual passions, at the expense of the public liberties on interests. The judges are said to have published "a clamorous appeal to the peo- ple in a pamphlet of thirty pages," which the author has not been able to procure. The remark proceeds from a writer, who, with his acknowledged abilities, bears his re- sentments too keenly, to always sec the injustice he com- mits against his enemies. The overweening influence, which Colonel George Nicholas is alledged to have posses- sed over the court, excited great jealousy in the public mind; nor was this suspicion lessened, by his being counsel for McConnel, in this agitated case.
At the subsequent term, judge Muter joined judge Wal- lace, in an opinion favorable to Kenton; and a decree directly the reverse of the former one, was made by the court; Sebastian adhering to his former sentiments. Thus terminated the first controversy between the court of Ap- peals and the legislature of Kentucky, in the triumph of the latter, though it is firmly believed, in a righteous cause. Not that any doubt exists as to the constitutional power of the legislature to address the executive for the removal of a judge for gross misconception of his duties, in the misunderstanding, or misapplication of the laws; for this incapacity is one of those very "reasonable causes," which is presupposed by the constitution in giving a legis- lative control in addition to the power of impeachment. This latter check is presumed to be intended to meet the moral delinquency of its objects, and not the involuntary, though mischievous exertions of their powers.
At this session an act was passed disqualifying sheriff's and their deputies from sitting in either branch of the leg- islature, until one year after they shall have made their collections of the public revenue, paid them into the public treasury, and obtained a quietus from the auditor. The
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constitutionality of this law creating qualifications for mem- bers of the legislature, in addition to those enacted by the constitution, may well be doubted; the same objection can- not be made to the disqualification of Quarter Session Jus- tices, which likewise took place at the same session. This was effected by vacating the seats of twelve persons, who had been elected to the House of Representatives. At this session was communicated by the Governor, the cor- respondence which he had held with Colonel James Innes; the special messenger employed by the President of the United States, on the interesting subject of the negotiations with Spain respecting the navigation of the Mississippi. "This corespondence had taken place during the preceding January, soon after the adjournment of the body for which it was intended." It is to be regreted that Governor Shelby should not have felt himself at liberty, to have laid these communications before the public, in order to tranquilize their apprehensions and suspicions. The move- ments of Colonel Innes upon a mission of so much im- portance to the public peace, and which involved the anxious feelings of the western country to so intense a degree, seem utterly inexplicable at this day. * The Sen- ate of the United States, after resolving that "on the nego- tiation now carrying on at Madrid. between the United States and Spain, the right of the former to the free navi- . gation of the Mississippi is well asserted and demonstrated, and their claim to its enjoyment is pursued with all the assiduity and firmness, which the nature of the subject demands," had requested "that the President of the United States, would communicate to the Excutive of Kentucky, such part of the existing negotiation between the United States and Spain, relative to this subject as he may deem advi- sable, and consistent with the course of the negotiation." A similar vote of approbation passed the House of Repre- sentatives. General Washington had, however, two months before the request of the Senate communicated the course
»Marshall's Washington, 2d vol. 333, 2d edition.
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of the government on this exciting matter. When such abundant evidence is found in the proceedings of the gov- ernment, to shew the anxiety and exertions of the Wash- ington administration, to promote and secure the western interests; it is painful to reflect on the little credit it re- ceived in the public mind of Kentucky, for this enlarged and parental policy. It is to be apprehended, that there had been too much familiarity with the idea of righting themselves without the aid, if not in defiance of their own government; to have allowed a fair construction to be placed upon the measures of the general government. Indeed it is not to be concealed, that Kentucky was a violent anti- federal State from the first proposition of the glorious system of government, which has advanced this country to such heights of happiness and renown. She had in the excess of her democratic prejudices, refused her sanction to the new frame of government, and she was identified with the opposition to all the leading measures of the Washington administration. The election of Humphrey Marshall, and his votes were, it is believed, the only exceptions to this temper; and now instructions were brought forward, to direct him distinctly from his colleague, in his vote upon the British treaty, which had received the advice and consent of the Senate, to a conditional notification during the preceding summer. Subsequently, however, the individual instructions to Senator Marshall, were amended by inserting the words Senators, in conformity to all propriety and official decorum. The treaty, however, did not again come before the Senate of the Uni- ted States, owing to the ready acceptance of the exception proposed by the American government.
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CHAPTER XV.
Land Laws of Kentucky-Dissatisfaction with the Constitution of 1792-Gov. Garrard- John Adams, President of the United States-Occupying claimant law and controversy -Seven years' limitation law.
Another branch of perplexing legislation presented itself this session in the vacant lands of the commonwealth southwest of Green river, that were ordered to be sold on a credit which created a debt from her citizens, embarrassing to the govern- ment of Kentucky as long as it existed. The first act secured to each housekeeper a pre-emptive right to purchase his land at thirty dollars per hundred acres; the fee simple to be with- held until the money was paid. These easy and tempting terms rapidly attracted a numerous population from other parts of the state to this section of it, where lands were to be had at thirty cents per acre. These are declared to have been worth from two to four dollars for that quantity. Such tampering with public property, contrary to all mercantile principles of supply and demand, and laying aside all the wholesome control of commercial competition, necessarily gave rise to great land speculations, and the arts and impositions which invariably fol- low in the train of all such excitements to the cupidity of the community. Still, as if these terms were not favorable enough, in the year 1797, another act passed, allowing from one to two hundred acres to all who should settle in this section of the state before the Ist of July, 1798, reside one year and tend two acres of corn within a fence. The prices were raised from thirty dollars to sixty per hundred acres of first rate land, and forty dollars per hundred acres of second rate land. But now no first rate lands were to be found for the benefit of the commonwealth, however abundantly they might reward private settlers. The land was to be forfeited, if it was not paid for within a year from the date of the commissioners' certificate; but how could this for- feiture be exacted by the commonwealth against a large and valuable body of her citizens? The very idea is absurd under
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a popular government, and it may well be doubted, whether the commonwealth deserved to collect debts, which she had by her imprudent and improvident legislation tempted her people to contract without any regard to their means of discharging them. If it were good policy to force the population of the common- wealth beyond the natural or efficient demands of her citizens; that is, before their ability to pay what, on free competition, should have proved a fair equivalent for the public domain; better, ten thousand times better would it have been, to have given the lands gratuitously to actual settlers, than to have tempted the creation of a body of debtors to the state, possessing a large section of the commonwealth, and necessarily thrown into conflict with the interests of its powerful but unwieldly creditor. But in truth, there is no doubt that the domain of the State in the section under notice, has been most improvidently wasted. Sound communities are not to be created by such forced bounties and legislative whims, in defiance of the natural laws of society, prior and paramount to the laws of men. Be cause a legislative body finds itself in possession of a great treasure which they are bound to administer for the benefit of society, is it fair and just that they should give it away on the slightest conditions to those who might want it? Such a scheme may, at a superficial glance, appear to be recommended by a noble benevolence and humanity, but on a closer examination it will be found only deceptive. Could such a distribution of lands return like the Jewish jubilees every fifty years, it would bring along with it the same periodical derangement of the ordinary prices of regular industry, of land and of wages, injuring the people by an improvement of the condition of one portion, at the expense of another. To be sensible that these ideas are neither strained nor extravagant, let the effect of these almost gratuitous distributions of land be calculated, upon its value in the older settlements of the state; just as much as the price was artificially depressed in the southwest, it must have been lowered in the northeast; and what was added in one section of the commonwealth, was nearly subtracted in another by the arbitrary glutting of the land market, without any regard to the
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