USA > Kentucky > History of pioneer Kentucky > Part 6
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The memory of Richard Henderson has for more than a century suffered from the ambition of some writers, the hatred of others, and the ignorance of all. Like many other notable figures in American history, he was born in and early emigrated from Virginia. From his utterances in later life it is safe to suppose that his removal from Virginia was so early as to leave him without affection for it, or that his short life there was sufficient to inspire a violent dislike.2 The elder Henderson, with the boy Richard and the re- mainder of his family, settled in the Yadkin region of North Carolina. The industry even more than the ability of the father may be inferred from the fact that he became sheriff
1 A perusal of the Haldemand papers is sufficient to dissipate the idea that the English deliberately encouraged the Indians in their atrocities.
2 Henderson's "Journal" contains many innuendoes at things Virginian.
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in that turbulent community where peace officers were re- quired to be constantly on duty. Richard, becoming older, acted as his assistant, and as a corollary took up the study of law. The legal libraries extant at that time in the Yad- kin were not burdensome, either in quality or extent. Never- theless, when the time came for him to be admitted to the bar, he successfully passed an examination as rigid as the Chief Justice 3 could make it. At the bar he speedily dis- tinguished himself and was ultimately chosen by Governor Tryon as Justice of the Superior Court. This position he held for a full term of six years, retiring from the bench in 1774.4 Henderson was a man of extraordinary ability and of greater ambition. From a home of poverty and a youth of illiteracy he had risen by native ability to be a leader among his people. He had tasted power and enjoyed it. Moreover, in his character was that large magnetism that made him popular with all classes and made men look to him instinctively as a leader. Popular, ambitious and conscious of his ability, it was natural that after retiring from the bench he should be far from content with the life of a rural barrister. He turned his thoughts to Kentucky.
The surveyors who had been forced by Dunmore's war to abandon Kentucky had not been silent concerning the land they had left. On the Point Pleasant campaign Kentucky had been a subject as exciting as the war itself.5 Back in the "settlements" men began again to plan for land com- panies. Patrick Henry 6 sent a messenger to sound the Cherokees in regard to a sale of their Kentucky lands, but
3 Berry.
4 Draper, MSS. Life of Boone, Vol. III, p. 165.
5 Autobiography of Daniel Trabue.
6 Deposition of Patrick Henry, Calendar of Virginia State Papers, Vol. I, p. 289.
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the approach of the Revolution interrupted the negotiations by offering a more brilliant outlet for his peculiar talents. Boone had not gone on the campaign with Lewis, but had remained in reluctant command of the three forts in the Clinch Valley. He suggested to Henderson that he pur- chase the Cherokee title to Kentucky and establish a colony there. The suggestion came to not unwilling ears. On the twenty-seventh of August, 1774, Henderson, John Wil- liams, Thomas Hart, Nathaniel Hart, James Luttrell and Williams Johnston formed themselves into the Louisa Com- pany for the purpose of renting or purchasing the land from the Indians on the Mississippi.7 Whatever vices may be imputed to Henderson, indecision was certainly not one of them ; in the autunin after the formation of the company, he and Nathaniel Hart personally visited the Cherokees and began the negotiations for the land. Henderson made the Indians promises, not of gold for their lands, but of many "white man's goods." The Cherokees listened to these prop- ositions with pleasure, and with commendable prudence pro- posed that the Cherokee representatives should go to inspect the stores. To this Henderson assented, and after a discus- sion of a proposed meeting next spring the two men, accom- panied by two Indian warriors and a woman, returned home.
Meanwhile, while the envoys of the Louisa Company and their dusky companions were crossing into eastern Carolina for the coveted stores, the Louisa Company itself was being reorganized. Leonard Bullock, James Hogg and David Hart increased the number of stockholders from six to nine. Each stockholder was to receive one-eighth part, since Bul- lock and David Hart ventured only one-sixteenth each. The
7 Draper, MSS. Life of Boone, Vol. III, Chap. XI.
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name of the company was changed from Louisa to Tran- sylvania. The latter name suggested at once the character of the Kentucky lands and the impediments on the way into it.
In the spring of 1775, the wagons laden with goods 8 designed for the Cherokees by the Transylvania Company made their slow way across the Carolina mountains toward the appointed rendezvous on the Wataga River. The heavily laden wagons with their extraordinary cargo and their guard of two impassive warriors created much com- ment as they passed through the scattered settlements. The report got abroad and spread like wildfire that a new attempt was to be made to cross the Cumberlands and settle Kentucky. It was welcome news to a people whose eyes had long been turned thither. The Kentucky fever broke out anew and with greater violence than ever before. It pervaded all classes, and for a time seemed likely to depopulate the colony. Henderson's name became asso- ciated with the project and kindled additional enthusiasm. And when finally the insistent rumors were corroborated by the lips of Boone, the eagerness of the people could not longer be restrained. Boone had been employed and commissioned by the Transylvania Company to aid in the negotiation with the Cherokees, and at its completion to mark a road and lead the first settlers to the banks of the Kentucky. He selected from the ready frontiersmen thirty picked men and rendezvoused them at Long Island in the Holstein River, near the place selected for the treaty with the Cherokees.ยบ
Boone, Henderson, Luttrell and Nathaniel Hart were to be the representatives of the Transylvania Company in
8 The goods were bought at Fayetteville.
9 Filson, Autobiography of Boone, p. 57.
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the dealings with the Indians.10 The four chiefs, Oconis- toto, Attacullacula, Savanooko and Dragging Canoe were deputed by the Cherokees to represent them in the delib- erations. The place of meeting was at Sycamore Shoals on the Wataga River. Here, then, in February, 1775, assembled the aforementioned chiefs of the Cherokees and about twelve hundred of the people.11 At least one-half of these were warriors. Another chieftain, known as "Judge's Friend," had been kept at home for some reason but sent his proxy. Both sides were fully alive to the importance of the business to be transacted. The Cherokees were on the point of parting with their most valued possession. Kentucky was to them a paradise and a shrine. They loved the land because of the game in its level valleys. It was the land above all others where they delighted to hunt. To their minds Kentucky was the ideal country. Moreover, the Cherokees more than any other Indians, held the Kentucky land in veneration. The bones of their an- cestors, so their tribal legend ran, lay thick beneath its surface. Under their savage exteriors they hid hearts by no means insensible to the pathos of their vanished fore- fathers. Truly, it was no trivial thing to give up the land that was called Kentucky. Such thoughts as these tempered their desire for gain and gave to their delibera- tions a dignity and a gravity not surpassed by the white men themselves. For Henderson and his associates also had much at stake. They were bargaining for an exten- sive country and money was not easy to find. And when the payment was made could they be sure of their pur- chase? Even if the Cherokees respected the treaty, would the northern Indians observe it? Supposing that Virginia
10 Draper, MSS. Life of Boone, Vol. III, p. 169.
11 Depositions of Chas. Robertson, Cal. Va. St. Papers, Vol. I, p. 291.
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should again extend unscrupulous hands, as at Fort Pitt, what might not the future hold?
Premonitions of such things caused Henderson to take the utmost precautions that the treaty should be fair and just, and that the Indians should fully understand the nature of it all. All halfbreeds among the Indians were required to attend and assist in interpreting.12 Moreover, the best linguists among the Indian traders, including Ellis Harlan, Isaac Rogers, Thomas, Benjamin and Rich- ard Paris, and Thomas Price were present and rendered active aid. Several men of note in the "settlements" were there; among which number was Isaac Shelby, later to become first governor of Kentucky. He was making plans for moving to Kentucky and more than suspected that Henderson was after the same lands as himself.13
From the time the contracting parties met until their departure, twenty days were consumed, but not all these were spent in business. The actual treaty-making seems to have taken up about five days while the remaining time was passed in feasting and revelry. On the first day,14 Henderson and his companions called upon the Indians to show their title to the Kentucky lands. This the chiefs did, and Henderson satisfied himself by a most careful investigation that the Cherokees alone of all the people of that time were the rightful owners of the land. On the second day there came up the question of what lands Hen- derson wished to buy from the Indians. The Cherokees showed themselves unwilling to part with any lands except those lying to the north and east of the Kentucky River.
12 Deposition of Samuel Wilson, Cal. Va. St. Papers, Vol. I, p. 282.
13 Deposition of Isaac Shelby, Cal. Va. St. Papers, Vol. I, p. 296. 14 Deposition of Jas. Robertson, Cal. Va. St. Papers, Vol. I, p. 285.
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This region Henderson promptly refused to buy for the quite sufficient reason that Virginia had already bought it and was at that moment in possession. 'The Indians, un- able to comprehend the ethical principle which prevented them from selling the same property as often as they pleased, were much incensed at Henderson's attitude, and, led by Dragging Canoe, they withdrew and broke up the conference. However, the lure of the "white man's goods" was too much for the Indian character and the following day found the Indians prepared to renew the conference. Henderson renewed his demands and the Indians finally agreed to them, though not without many complaints of the fewness of the goods to be given in exchange. It was at this juncture that Dragging Canoe in an impassioned address warned the white men that they had secured a "dark and bloody ground," a phrase that was to become widely famous. The region demanded by Henderson and yielded by the Indians lay between the Kentucky and the Cumberland rivers. On the fourth day nine deeds, one for each of the proprietors, were prepared and laid before the Indians for signing. The interpreters were present and read the documents to the chiefs, word for word, until they declared they thoroughly understood them. Then the chiefs signed. One of the interpreters, Vann,15 as a result of a slight altercation with Henderson, at the last moment counseled the Indians to reject the treaty, but his advice fell on unheeding ears.
The boundary line of the land purchased by Henderson took its beginning from the Ohio River at the mouth of the Kentucky and ran up that stream to the head springs of its northernmost branch; thence the line ran overland
15 Deposition of John Lowry, Cal. Va. St. Papers, Vol. I, p. 283.
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to the top of Powell's Mountain in North Carolina, now Tennessee ; thence it took its vague way along the ridge of the mountain until it reached a point where a northwest course struck the head springs of the southernmost branch of the Cumberland to the Ohio, and up that stream to the starting point. For this tract, goods amounting to ten thousand pounds sterling were given by Henderson to the Indians. In their eyes this seemed a huge amount, but they found when twelve hundred warriors shared in the division the per capita was surprisingly small. One war- rior afterwards declared that his portion was represented by a single shirt.
After the chiefs had affixed their signatures to this deed, Henderson called their attention to the fact that the land he had bought of them was far off and that he had no entrance to it except through their territories or Vir- ginia's. He proposed that they sell him for a further consideration a path 16 to Kentucky. This was to include Powell's Valley, in what is now Tennessee, and was to extend thence in a narrow path south of the Virginia line and into Kentucky. The actual limits of this path is today a matter of controversy and seems not to have been clearly understood then, unless by the contracting parties. It is certain that it included the land through which Boone a few days later blazed his way into Kentucky. It may be stated that for this "path" grant no money or goods passed into the hands of the Cherokees ; the tribe was considerably in debt to the Indian trader, Carter,17 and Henderson as- sumed the debt as a payment for the land. The nascent
16 Deposition of Nathaniel Henderson, Cal. Va. St. Papers, Vol. I, p. 305.
17 Deposition of Jas. Robertson, Cal. Va. St. Papers, Vol. I, p. 285.
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Wataga settlement had a representative present at all the deliberations in the person of Charles Robertson.
The expense of the twenty days of treaty making was by no means small and was met by the Transylvania Com- pany. They furnished beeves, flour, corn and other pro- visions for the entire assembly. To the credit of the company no liquor was given the Indians until the nego- tiations were completed. Hardly was the treaty signed, however, before the chiefs got gloriously intoxicated. The action of Henderson throughout is not open to criticism. There will not be found in history a treaty more fairly negotiated or more religiously observed.
For one hundred and thirty-five years the point has been debated whether the transfer was a legal one or not. Virginia took up the question almost before the ink was dry on the treaty and, of course, decided it in the negative. The royal Governor of North Carolina took similar action, and from that day to this the Transylvania Company and Henderson in particular has suffered condemnation at every hand. Were it not for the fact that historians, like animals of a more woolly appearance, are inclined to fol- low an accepted leader and that the action of the first judge, Virginia, was patently for self-aggrandizement, the verdict of the years might be accepted as final. Yet it might well seem strange to any truth-seeker that Hender- son, one of the most eminent of colonial jurists, should be taken like a boy in a legal tangle, and that Boone, whose name was a synonym for honesty all along the fron- tier, should lend himself so completely to unlawful schemes. It may not, then, be entirely amiss that at least one more effort should be made to ascertain and make known the facts.
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In a consideration of the title to Kentucky five dif- ferent claimants must be noticed. These five are the Vir- ginians, the English, the Shawnese-who may represent all the Indians immediately north of the Ohio-the Iro- quois and the Cherokees. If there was any power to give a rightful title to Kentucky it was necessarily one of these.
The claim of Virginia to the western territory was based upon the charter 18 given them from the founda- tion of the colony. Therein it was specified that the do- main of Virginia should extend from sea to sea and was interpreted by patriotic Virginians to mean that their col- ony grew wider as it grew further from the coast. Hence their seizure of Fort Pitt and the claiming of the Ohio as well as the Kentucky country. But the charter grant- ing this extensive domain had been abrogated in 1624. Virginia's borders thereafter were become matters to be settled according to the kingly will. Virginia had become a royal province ; her charter had been taken away from her and not another given. And in fact her boundaries had been fixed from time to time, not only to north and south, but to the west as well. Then, inasmuch as Vir- ginia could not base her claim to Kentucky upon provisions of an annulled charter, unless the land were ceded her by one of the other four claimants, she could not possibly have any legal right to the country at all. A considera- tion of the other claimants will reveal whether or not any such cession ever was made.
The Shawnese, and the loosely allied tribes of the Ohio country, claimed Kentucky because of ancient possession and present desire. The Shawnese at one time, prior to
18 McDonald, Select Charters, p. 17.
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their removal to Ohio, had indubitably occupied Ken- tucky. They had lived along the Cumberland River and had given their own name to the stream. But neither Shawnese or others had occupied Kentucky, save by stealth, for nearly a century. They had been beaten by the Cher- okees and conquered by the Iroquois. They were a vassal nation and had long acknowledged their dependence. Their claim, then, such as it was, had been taken over by the Six Nations who had conquered them and their country as completely as one tribe ever conquered another. The Ohio Indians admitted the Iroquois right to Kentucky and the Cherokees themselves acquiesced.19 And, assuredly, neither Shawnee, nor Wyandot, nor Delaware, ever pre- sumed to cede to Virginia the land that they had long since lost.
The Iroquois, then, had acquired as sound a title to Kentucky as an Indian ever had to property of any kind. By afterwards buying it from them the English acknowl- edged the claim, and Shawnese and Cherokees by acqui- escing in the sale admitted its legality.20 Thus the Iro- quois title to Kentucky was unquestioned. But in a solemn treaty at Fort Stanwix, New York, on the fifth day of November, 1768, the Iroquois in the presence of the King's Commissioner, the Governor of New York, and representa- tives from Virginia and Pennsylvania, ceded to the English all the country east of the Ohio and Tennessee.21 Three things are to be remembered in connection with this cele- brated treaty of Fort Stanwix. The Shawnese and the Cherokees acquiesced in it; the Iroquois gave up all their
19 Deposition of George Craig, Cal. Va. State Papers, Vol. IV, p. 140.
20 Haywood, History of Tennessee, p. 30.
21 Documentary History of New York, Vol. I, p. 587.
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rights to the land ; the title to Kentucky was ceded to the English and not to Virginia. Virginia had no more right to the country than before. England had acquired the right of eminent domain.
It is now necessary to consider the relations of the Eng- lish and the Cherokees in order to understand why Hender- son, knowing fully the provisions of the Fort Stanwix treaty, yet chose to buy his land from the Cherokees rather than to apply to the English government for a grant. While the provisions of the treaty were being arranged by Johnson and the reluctant ministers of the King could clearly foresee the result, they had begun straightway to make plans for alienating the territory they had un- willingly gained. At Hard Labor, South Carolina, a treaty was made with the Cherokees fixing the western boundary of Virginia by a line extending from a point on the North Carolina boundary, about thirty-six miles east of Long Island, to the Kanawha and down that stream to the Ohio. This boundary was somewhat west of the prior accepted boundary of Virginia, and for their agree- ment to this the Cherokees were expressly confirmed by the treaty in the possession of the lands west of the line. But the restless Virginians could not long be restrained within this boundary. October 18, 1770, at Lochaber,22 in South Carolina, another treaty was made with the Cher- okees by which the boundary was moved a little further west and the Cherokees again confirmed in the possession of the remainder. This time the line was to begin six miles east of Long Island and run to the Ohio. At this treaty the King's Indian commissioner was present, Major Lacey was there from Virginia, and James Sampson represented
22 Summers, History of Southwest Virginia, pp. 90 and 111.
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South Carolina. So on two occasions and by solemn trea- ties the English had confirmed the Cherokee title to the Kentucky country. Kentucky, having passed from Cher- okee and Shawnese to Iroquois, and from Iroquois to Eng- lish, had by English cession been restored to Cherokee. But not all of it was destined to come back into their hands. A certain Colonel Donelson was appointed to run the new boundary line, but instead of following the provi- sions of the treaty he passed from Long Island to the headwaters of the Kentucky River and down it to the Ohio. An enormous territory was thus gained for Virginia.23
Henderson in his negotiations with the Cherokees at Wa- taga had in his possession a copy of the Lochaber treaty. He knew, then, that the title of Kentucky rested with the Cherokees, and he knew, also, of Donelson's action in seiz- ing for Virginia all the lands east and north of the Ken- tucky River, hence his refusal to buy such lands notwith- standing the eagerness of the Indian to sell. He was care- ful to buy only to the west and south of the Kentucky, and therefore secured lands outside the jurisdiction of Virginia.
The necessary conclusions from the facts as presented are, that since Shawnee had yielded to Iroquois, and Iro- quois to English, and English had confirmed to Cherokee, the Kentucky lands were Cherokee possessions with the English government holding the right of eminent domain. The treaties of Lochaber and Hard Labor had fixed the western limits of Virginia, a boundary which Donelson unfairly extended to the Kentucky. Assuredly, then, the lands beyond the Kentucky did not belong to Virginia,
23 Draper, MSS. Life of Boone. Donelson justified his act by say- ing that an Indian chief suggested the change on the ground that the Indians preferred natural boundaries.
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they had never even been claimed by her. The treaties of Hard Labor and Lochaber had effectually checked her western expansion and must not be overlooked in any con- sideration of her later claims.
Henderson made no pretense of acquiring eminent do- main. He recognized the sovereignty of England. The right of individuals to buy land of the Indians was one that on many occasions had been upheld by the Crown. Hen- derson, then, did not err in this. The right of a people to organize for local self-government was as old as the Eng- lish race and colonial history afforded many examples of it, notably at Wataga. Henderson, therefore, did no un- lawful thing in establishing the Transylvania government. There can be little doubt that if the Revolution had not intervened, Transylvania would have been recognized by the Crown as a separate colony. The confusion of Revo- lutionary times gave Virginia her opportunity to exploit her claims. As to the King's proclamation forbidding set- tlement in Kentucky, it was never construed as binding. No officer of the Crown observed it. The colonists shrewdly guessed at the truth, that it was intended only as a balm to Indian feelings. Henderson violated no law in settling Kentucky.
After the treaty was completed Henderson announced the terms on which he would sell land to settlers in the proposed Transylvania colony.24 To those whose daring and energy induced them to accompany Boone or himself as the initial settlers, he announced that he would grant six hundred and forty acres at twenty shillings per hun- dred acres. Three hundred and twenty acres additional could be secured by bringing in a taxable settler. Hen-
24 Collins, Vol. II, p. 512.
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derson was careful to explain that this price would be given only to the first settlers and that there would be an increase after the first settlement was made.25 With this clear understanding the journey was begun to Ken- tucky.
Boone and his companions of thirty picked and mounted men had the task of preceding the others and marking out a trace to the new settlement. The party included Squire Boone, Richard Calloway and Felix Walker. Cap- tain William Twetty, with eight men under his command, was also among the number. The objective point was the mouth of Otter Creek on the south bank of the Ken- tucky River. This was a place frequently visited by Boone on his previous trips to Kentucky and one in which he took much delight. To the mind of the simple-hearted hunter it seemed an ideal location for a town and he had not been sparing in its praises to Henderson. The task of Boone was not to make a road but to mark a trace. Those that were to come after were either on foot or at most only accompanied by pack horses. The trace was to be principally for their guidance.
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