USA > Kentucky > The history of Kentucky, from its earliest discovery and settlement, to the present date, V. 1 > Part 44
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I Butler, pp. 244-250.
337
MORE PROPOSALS.
"Several reflections necessarily arise out of this summary of the nego- tiation of 1795, which was preserved secret from the government of Ken- tucky until voluntarily disclosed by Judge Innes, in 1806, before a committee of the Legislature. The first remark that suggests 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, although he has attempted to investigate the earliest ramifications of a plot, now only interesting for its historical curiosity. This negotiation, though terminated so abruptly by Carondelet, contrary to the urgent representations of Sebas- tian, was again renewed by the former officer in 1797, while the territorial line was marking between the United States and Spain, on the south. It was again effected through the agency of Messrs. Power and Sebastian, and in a way to endanger the Union and peace of these States more flagrantly 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 governor of Louisiana, and immediately communicated a letter to Sebastian, desiring 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 unconnected 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 themselves to infamy by assisting a foreign power to dissolve the American Union, and to convert its free republican States into depend- encies on the arbitrary and jealous Government of Spain, orders for one, or even two hundred thousand dollars, on the royal treasury 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 dis- posal 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 judged expedient to raise. The com- pensation for these free offers of money and arms, independent of weaken- ing the United States, was to be obtained in the extension of the northern boundary of the possessions to which Spain had so pertinaciously 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 Mis- sissippi, was to be the Yazoo, as established by the British Government, when in possession of the Floridas, and which was, by a secret article in the treaty of peace, retained, as the boundary between the United States and
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338
HISTORY OF KENTUCKY.
Floridas, should Great Britain recover them 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 Kentuckians, if they would declare themselves independent 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 advantageous 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 pre- sented by the Spanish Government of Louisiana to some of the leading men of Kentucky, in order to seduce them into a dependency of Spain. These offers were entertained too gravely, and rejected with too much tameness for the honor of Kentucky patriotism, as will appear from the following detail given by Judge Innes to the legislative committee previously men- tioned :
"After receiving the above communications from Power, Sebastian 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 navi- gation of the Mississippi, by which all their wishes were gratified. Mr. Sebastian concurred in sentiment, after, it must be observed, this explicit declaration of Judge Innes, who seems to have given tone to the whole transaction. Still, as Power desired an answer in writing, Sebastian pre- vailed on Innes to see Colonel Nicholas, saying whatever they did he would concur in. In a few days afterward, 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 1 to Power's communication, 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 their only induce- ment, 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 Gov- ernments 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 efficient means to conciliate their good will, and to obtain, without hazard, and at reduced prices, those supplies which are indis- pensably necessary to the Spanish Government and its subjects. This reply was forwarded to Mr. Sebastian, and communicated by him to Mr. Power.
I Dated Lexington, September 4, 1777 ; Journal of the House of Representatives, 1896.
339
SKETCH OF THE THREE AGENTS.
"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 can not 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 un- impaired 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. His1 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, 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 respon- sible 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 reputation of an exalted and patriotic states- man. In the convention of Virginia, assembled to decide upon the rati- fication of the present Constitution of the United States, he took a prominent and influential part alongside 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 address, and most courte- ous, dignified 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 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 government, at once derogatory to his duty as a public officer of the laws and his honor as a faithful citizen.
"In the Spanish conspiracy, there are three stages and correspondent degrees of condemnation. The first existed in 1787, when Don Gardoqui communicated his overtures to the people of Kentucky, to establish a gov- ernment independent of the rest of the confederacy ; this, under the ominous and disgraceful condition of the existing government, might have been laudably entertained 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 Span-
I D. Clark's letter to Judge Innes ; Palladium, April 7, 1808.
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340
HISTORY OF KENTUCKY.
ish 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 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 in- troductive 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 attempt of Spain to dissever this country, in the face of her recent treaty, and inconsistent with everything like the good faith which is represented as characteristic of Castilian honor. This intrigue of the provin- cial authorities, in Spanish Louisiana, is no doubt to be traced to European politics."
Humphrey Marshall, the eminent statesman and historian of Kentucky, was this year elected United States senator, over the distinguished John Breckinridge. This event derived importance from the fact that Marshall was a bold and uncompromising leader of the Federal party in Kentucky, and an earnest supporter of Washington and his administrative policy. His competitor was no less an able leader of the democratic or republican party, as the opposition was called. A violent feeling of prejudice was excited against the senator a short time after, on account of his vote in favor of the adoption of the treaty with England. The anti-Federal spirit was still rife, though prudent counsels had before elected him. The event of the session. however, was the attempt to remove from the bench of the Appellate Court. Judges George Muter and Benjamin Sebastian, by an address of two-thirds of both houses of the General Assembly. 1
"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 certificates issued by the commissioners for settlements and pre-emptions, in the case of Kenton against McConnell. Such meritorious titles must naturally have been regarded with the fondest affection, won as they had been at the hazard of everything dear to man. When, therefore, the 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 un- certainty, vexation, and expense of legal controversy, it was not at all strange that the people and the Legislature should be agitated. A memo- rial was laid before the Legislature, which brought the matter regularly before that body. The House of Representatives determined to summon the two judges before them. This was done, and a copy of the memorial annexed
I Butler, p 252 ; Marshall, Vol. 1l. p 161.
341
ADDRESS FROM BOTH HOUSES.
to the summons was served on the two obnoxious judges; Wallace, the third judge, having objected to the decree. They answered that 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 pro- ceeded to act upon a resolution, that the opinion and decree are subversive of the plainest principles of law and justice, and involve, in their conse- quences, 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 influence or want of judgment; as said decree and opinion contravene the decisions of the court of commissioners, who were authorized to adjust and settle under the Virginia land act of 1779, and also contradict a former decision of the late Supreme Court for the dis- trict of Kentucky, on a similar point-whence arises a well-grounded appre- hension 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 Ben- jamin Sebastian continue as judges of the Court of Appeals. The house, then, in consequence of these recitals, and their power to address the gov- ernor 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 knowledge of law, or some impure motives, that appear to dis- cover 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."
The overweening influence which George Nicholas was alleged to have had with the court entered into the discussions of this issue, and the sus- picions were only intensified of the party favoring prosecution, by his being counsel for McConnell in this case. At the subsequent term, Judge Muter reversed his opinion, and joined Judge Wallace in one favorable to Kenton. But Sebastian stubbornly adhered to the first. The action of the Legislature was a bold venture; but it was encouraged by the almost universal senti- ment, that the court had rendered a flagrantly unjust and injurious decision, and one affecting widely the general interests of the citizens.
General Benjamin Logan and James Garrard, both of the democratic party, became candidates for the succession of Isaac Shelby, the first gov- ernor of Kentucky. By a bare majority Garrard was elected, and assumed
342
HISTORY OF KENTUCKY.
the functions of the office in June, 1796. Harry Toulmin, an accomplished and learned gentleman. who had been a follower of Dr. Priestly, in Eng- land, and a minister in the Unitarian church, was appointed secretary of state. It was the acknowledgment of his worth that rendered this appoint- ment acceptable to the people at the time; a testimony that was afterward confirmed by his succession to the judgeship of the United States Court in Alabama. He was the author of a digest of the laws of Kentucky, since held in high esteem.
The essential features of the message of the new governor, we give in the following extracts :
" With peculiar pleasure it is that I call your attention to the present state of the country. contrasted with what it lately was, involved in war with a cruel foe, on all our borders; and now, by the directions and exer- tions of the Federal Government, as the instrument of a wise and gracious Providence, the blessings of peace, no longer in expectation, are in our en- joyment. Add to this the increase of population; the extension of the settlements to the extremities of our territories; the flourishing state of agri- culture; the increase of improvements; the establishment of manufactures; a year of the greatest plenty, in succession to one of the greatest scarcity, with the hopeful prospects opening to agricultural industry and commercial enterprise by means of the treaty with Spain, which has opened the naviga- tion of the Mississippi, and a port at Orleans for us-objects long and ar- dently desired-and with this accumulation of blessings, extending our views to the security of our rights by means of our constitution and laws, I might ask, in the exultation of an American citizen, where is the nation that hath greater reason to be thankful, contented, and happy?
"Thus fortunately circumstanced, our present situation seems peculiarly favorable to legislative deliberations, while it invites the attention to a calm review of the laws in force. Suffer me to refer you to some of them. The first to be mentioned, as directly affecting humanity, are those of the crimi- nal code, and the law respecting grand juries. Crimes of magnitude escape punishment, while those of a trivial nature are punished with an undue se- verity. And however this course of procedure may suit despotic govern- ments, it derogates from the justice and the honor of a free and enlightened State.
"In relation to the adjustment of the boundary between Virginia and this State, the executive will want the aid of the Legislature. Commissioners have been appointed by each State : yet the business. I am sorry to say, has not terminated so happily as was anticipated, owing to a disagreement be- tween them.
"The general revenue laws of the State seem to require careful revision. The act establishing a permanent revenue seems to have undergone so many hasty alterations, and has become so complex and susceptible of so many constructions, that its operation is considerably impeded, and some-
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343
ADAMS CHOSEN THE SECOND PRESIDENT.
times its effect defeated. While the collectors are authorized to collect the arrearages of 1792 and '93, it is doubted if the law will compel them to pay the money collected into the public treasury. The attorney-general says it will not. Another part of this law subjects land not entered for taxation within a limited time to be forfeited to the State. Can, or ought, such for- feiture injuriously affect the rights of others who have complied with the law? It may be a question as to non-residents, whether the forfeiture is not an infraction of the seventh article of the compact with Virginia, and if so, a violation of the Constitution. These matters being deemed worthy of at- tention are, on that account, presented to your view.
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" The Green river settlers, availing themselves of the act of last session, have paid four thousand pounds into the public treasury for lands taken up. Those who have not paid have no doubt forfeited their claims to the State; but I do very sincerely recommend them as proper subjects of legislative indulgence.
"The auditor's statement exhibits a balance of more than eleven thou- sand pounds in favor of the State. This is a subject on which I congratu- late you, and at the same time take the liberty to express a hope that its dis- bursement will be on objects of general utility.
" The act for transcribing certain entry books has been complied with.
"The appointments to office, since last session, will be laid before the Senate."
The issues of the approaching presidential election were agitating the whole country, and the people of Kentucky were not the least interested, of the many. Washington issued his affectionate and paternal valedictory to his countrymen, announcing that he would not again serve after the 4th of March, 1797. The two great political parties began to organize for the campaign, and to consider the claims of candidates. The Federal party selected John Adams, who was then vice-president; and the Democratic party, Thomas Jefferson. who was secretary of state. Honored and em- balmed as these great and patriotic statesmen now are in the memories of the people of to-day, we will find it difficult to realize that the presidential contest waged between the adherents on either side was as remorseless, in- temperate, and embittered. as was that between the adherents of Blaine and Cleveland in the very recent presidential campaign. The truth of his- tory thus forms a commentary of rebuke upon the uncharitable injustice and unkindness with which the characters of the most eminent and worthy men are assailed by partisan spirit, and at the same time affords grateful assur- ances 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 consecration of affection, as well. On counting the electoral votes, it was found that, by a plurality of three, John Adams was chosen the second president of the United States. Thomas Jefferson receiving the next highest number, was, by the provisions of the
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HISTORY OF KENTUCKY.
Constitution, then declared elected vice-president, a singularly antagonistic succession, in case of a presidential vacancy.
The laws of Virginia and Kentucky under which the titles to land had been acquired, and upon which the claims were now based, seemed a very flood of evils let loose to harass and distress the original settlers, and with little less remorse than the inflictions of savage warfare. There was no sur- vey and partition of public lands by the Federal Government in Kentucky, as these lands did not become the disposable property of the same. The parent State of Virginia made no provision for such survey. Hence, the titles were acquired under different laws, and in different conflicting and misleading modes, only to inveigle the unsuspecting into interminable, and, too often, ruinous litigations. Each claimant surveyed for himself, and of course a multiplicity of surveys overlay the same land, or overlapped upon the surveys of adjacent tracts.
1 By the land law of Virginia, passed in 1779, for the sale of public lands, one holding a warrant for land might enter in the surveyor's books the boundaries of such lands as he wanted to acquire previous to any survey ; but he must direct the location thereof so specially and precisely, as that others might be enabled with certainty to locate warrants on the adjacent residuum. Others claimed rights of settlement or pre-emption, as described under the land law in its appropriate gear. These claimants must obtain certificates from the commissioners appointed, naming the cause of claim, the number of acres, and describing the location. Under these brief texts arose a system of judicial legislation fraught with subtlety and perplexity, and aggravated by the license and entanglements of surveys. In the lan- guage of the distinguished attorney, John Rowan, "the territory of Ken- tucky was encumbered and cursed with a triple layer of adversary claims." The occupying claimant who had built his cabin and outlying improvements, cleared away the forest growth, and inclosed his fields, had no assured guar- antee that his title would not soon be assailed by some adverse claimant from a distant State or district, who had never seen the land, or embarked a penny in its improvement. Thus home, comfort, and competency might, by a judicial fiat, be in a moment swept away, and occupant, wife, and chil- dren beggared and turned out upon the merciless charities of the world.
The questions concerned the deepest feelings of the human heart; for the freehold, improved and adorned as the sweet refuge of the laborer, his affectionate partner for life, and their loved offspring, possessed a value and gave a charm to life far beyond its worth in silver and gold. Often the re- mains of the loved and lamented dead of the household and kindred lay in some consecrated spot near by, while every familiar object treasured some pleasant memories of the past. In the safe repose of peace at last, those rude homes far away in the wilderness were peculiarly endeared to the peo- ple of Kentucky. They had risked their lives in exile from civilization for
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