USA > Kentucky > The political beginnings of Kentucky. A narrative of public events bearing on the history of that state up to the time of its admission into the American Union > Part 2
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" This proclamation may be found printed as an appendix to Dr. Franklin's argu- ment on the Walpole grant. (Franklin's Works, Vol. IV, p. 374.) The Kentucky land titles, earlier than such Virginia grants as postdate 1776, are nearly if not quite all based upon warrants authorized by the royal proclamation of 1763, to be issued to sol- diers in the North American wars.
P
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boundary of the Kanawha was abandoned, the adoption of the treaty of Fort Stanwix brought embarrassments. It was soon asserted that Virginia had no title westward of the Alleghany range, because the cession by the Six Nations was (as contended) a new and original title in the King, incompatible with the pretensions of Virginia to the terri- tory which her charter boundary would include. It was thus that Franklin, in his argument before the Privy Council in 1772,' ingeniously established the royal title from the Iro- quois and checked Virginia with a mountain boundary, find- ing a location as well as a title for the Walpole grant.
The original boundaries granted to Virginia were cer- tainly declared in ignorance of what would be their gigantic extent, but it can hardly be contended that they were impos- sible of ascertainment or application. There were well- defined beginning points on the Atlantic coast; the courses of the lines to the north and south were unmistakably indi- cated, and the limit of the grant to the west was the sea. The royal grantor declared :
"And we do also of our special Grace, certain knowledge and mere Motion, give, grant, and confirm unto the said Treasurer and Company, and their successors, under the Reservations, Limitations, and Declarations hereinafter expressed, all those Lands, Countries, and Territories situate, lying, and being in that part of America called Virginia, from the Point of
I Franklin's Works, Vol. IV, p. 324, and following.
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Land called Cape or Point Comfort all along the Sea Coast to the North- ward two hundred miles; and from said Point of Cape Comfort all along the sea coast to the southward two hundred miles; and all that space and Circuit of Land lying from the Sea Coast of the Precinct aforesaid, up into the Land throughout from Sea to Sea, West and Northwest; and also all the Islands lying within one hundred miles along the Coast of both Seas, of the Precinct aforesaid : Together with all the Soils, Grounds, Havens, and Ports, Mines, as well Royal Mines of Gold and Silver, as other Minerals, Pearls, and precious Stones, Quarries, Woods, Rivers, Waters, Fishings, Commodities, Jurisdictions, Royalties, Privileges, Franchises, and Preheminences within the said Territories, and the Precincts thereof what- soever; and thereto and thereabouts, both by Sea and Land, being in any sort belonging or appertaining, and which We by our Letters Patents may or can grant, in as ample Manner and Sort as our noble Progenitors have heretofore granted to any Company, Body Politic or Corporate, or to any Adventurer or Adventurers, Undertaker or Undertakers, of any Discover- ies, Plantation or Traffic of, in, or unto any Foreign Parts whatsoever, and in as large and ample Manner as if the same were herein particularly men- tioned and expressed: To have and to hold," etc.'
Of this grant it has well been observed that all the con- ditions can be satisfied only by extending from a point two hundred miles south of Point Comfort a line due west to the Pacific, and, from a point equally distant and to the north of Point Comfort, another line stretching northwest to the Pacific. Between these lines on the north and south and the ocean limits on the east and west was the chartered
" For the charter of the London Company see Poore's Constitutions and Charters, Government Press, 1878, Vol. II, p. 1897.
2 Hinsdale, The Old Northwest, p. 75.
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:
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area of Virginia. The divergence of the inclosing bound- aries spreading at an angle of forty-five degrees would have included a Pacific coast line from the vicinity of Monterey to the snows of Alaska.
Spanish occupation, and the treaty of 1763, made it im- possible for Virginia to assert (as she came to the status of a revolutionary State) territorial claims west of the Missis- sippi. But never was her claim abated short of the great river.' Jefferson, more than any, appreciated the paper title which the charter of 1609 gave, and his far-sighted comprehension urged George Rogers Clark from the Falls of the Ohio into the northwest, that actual occupation at the close of the Revolution might secure to the new nation territory for new commonwealths. His broad intelligence kept steadily in mind that divergent line toward the north- west for nearly thirty years longer, until, by the purchase from France of the Louisiana territory, the old Spanish title to the trans-Mississippi was extinguished, and Great Britain and the United States were left sole owners of all above the Gulf of Mexico. Then once more he started exploration on the northwest line, dispatching Lewis and Clark up the Mis-
" The 7th article of the treaty of 1763, between France, Great Britain, and Spain, fixed the boundary line between Spain and Great Britain as to their North American possessions, by the current of the Mississippi, " une ligne tirée au milieu du fleuve Mississippi, depuis. sa naissance jusqu'à la rivière d'Iberville, et, de là, par une ligne tirée au milieu du cette rivière et des lacs Maurepas et Ponchartrain, jusqu'à la mer." (Martens, Recueil des Traités, etc., Vol. I, p. 32, ed. of 1846.)
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souri and beyond the Rocky Mountains, enabling his country- men to claim Oregon by joint title of grant and occupation.
The charter-title thus held by the colony of Virginia con- cerns the present inquiry only so far as it is connected with the development of Kentucky. During the interval between Boone's first visit to Kentucky, in 1769, and the close of the Revolutionary War, only one occasion called for the asser- tion of the sovereign title held by Virginia over Kentucky soil.
The King had granted, in 1609, and had perfected the original title, based on the right of discovery by purchase from the Six Nations at Fort Stanwix. It was very much a case of buying in the outstanding claim of an annoying neighbor. The public men of Virginia must have regarded the treaty of Fort Stanwix as confirming, to the extent of its cession, the ancient charter grant. Yet they must have appreciated the argument thus put into the hands of such as might dispute Virginia's right to the territory north of the Ohio. It was forcibly contended in after years that the treaty of Fort Stanwix, in 1768, operated as a resumption by the Crown of all the grant of 1609 that lay west and north of the treaty line." But the urgency of the political
' This point was pressed by the counsel for Garner, indicted in Virginia for the offense of assisting slaves to escape. He was seized by Virginia officers on the north bank of the Ohio River, between high- and low-water mark. The case is reported in 3 Grattan, Virginia Reports, 655.
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situation demanded an acceptance of what was procurable ; for Stuart's treaty with the Cherokees threatened the barrier of an Indian title, solemnly agreed and guaranteed, which would bar all expansion toward the west. Already Orange County has been constituted by colonial act, in 1734, with a boundary to "the utmost limits of Virginia,"' and from it, in 1738, Augusta County has been formed, extending beyond the mountains "to the utmost limits of Virginia."2 Bote- tourt had been carved from Augusta in 1769,3 and from it in turn was taken Fincastle in 1772.4 Kentucky County was erected in 1776 by the partition of Fincastle, under one of the earliest acts of the first legislative assembly of the independent State of Virginia.
To a sequence of political acts manifesting sovereignty, Virginia added at the close of the Revolution the proud claim that she, unaided, had subdued and held the Northwest.5
The Continental Congress acquiesced in a theory that quite confirmed Virginia's claim. Its committee reported
1 4 Hening, Statutes at Large, 450.
2 5 Hening, Statutes at Large, 79.
38 Hening, Statutes at Large, 396.
48 Hening, Statutes at Large, 600.
5 The sovereignty of Virginia over the Northwest, and her power to declare bound- ary, in cession of that territory, was discussed and established by Chief Justice Marshall, in Handley's Lessee v. Anthony, 5 Wheaton, 374, where the boundary of Kentucky is judicially settled as being low-water mark on the north side of the Ohio River. The same conclusion as to the river boundary of Virginia was reached by the General Court of that State in Garner's Case, 3 Grattan, 635. The latter case was one where the ma- jority of the court, led by Robertson and Lomax, rose, with noble tranquility of judg-
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in January, 1782, that the States, considered as independent sovereigntics, had severally succeeded to those limits and boundaries which belonged to them as colonies, and had become entitled to all the territorial rights that the colonial charters conferred."
Henderson's Purchase.
But in the mean time the question of political authority had been distinctly presented upon the soil of Kentucky.
The King's proclamation of 1763 (among its other pro- visions) strictly prohibited all purchases- of lands by private persons from any Indian tribes. It had come to the general knowledge of the country, and especially to the men of the frontier, because of the liberal patents of land that it author- ized to be issued to soldiers in the former French and Indian wars. Almost all the adventurous spirits of the border were embraced in this category, and interested in the grants which the proclamation made. Its terms were well known.2
ment, above the irritation that seems to have disturbed some of the judges. Garner and others, citizens of Ohio, had met and assisted certain fugitive slaves as they crossed the river, and had been arrested in the act. The river was at medium stage, and they were therefore above the low-water mark. It was held that they were not within the jurisdiction of Virginia, and the court directed an acquittal. The argument of Mr. Vinton, counsel for Garner, was very full upon the history of the Virginia title. It is imperfectly reported.
1 Secret Journals of Congress, Vol. III, p. 151.
2 The royal proclamation of 1763 may be found in 7 Hening, Statutes at Large, 663. It is also printed in Franklin's Works, Vol. IV, p. 374, as already noted.
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Richard Henderson, an influential, able, and wealthy citi- zen of North Carolina, enlisted a number of his friends in the tempting enterprise of securing Indian lands west of the mountains. His acquaintance with Boone doubtless directed his attention to the lands in Kentucky, and the former haunts of the old pioneer on the banks of the Kentucky River were included in the grant that Henderson secured. After a pre- liminary journey to the Indian country, in which he prepared the minds of the leading chiefs for his plan, Henderson met a great council of the principal chiefs and warriors of the Cherokees at the Sycamore Shoals, on the Watauga River.' As many as twelve hundred Indians are said to have been present at the treaty, and ten thousand pounds sterling in value of goods was paid by Henderson and his associates.2 The lands granted were thus described in the formal and tediously-lengthened deed which Henderson pre- sented for the signatures of the three great chiefs, Oconis- toto (The King), Attacullacullah (Little Carpenter), and Sav- onooko (Raven Warrior):
" Beginning on the said Ohio River at the mouth of Kentucky, Chenoca, or what by the English is called Louisa River ; from thence running up said river and the most northwardly branch of the same to the head spring thereof; thence a southeast course to the top ridge of Powell's Mountain ; thence westwardly along the ridge of said mountain unto a point from which
" Wautauga in the Cherokee language signifies " River of Islands."
2 Kamsay, History of Tennessee, 117; Monette, Valley of Mississippi, Vol. I, p. 389.
4
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a northwest course will hit or strike the head spring of the most south- wardly branch of the Cumberland River; thence down the said river, including all its waters, to the Ohio River; thence up the said river as it meanders to the beginning.":
This conveyance, though made to Henderson, Hart, Wil- liams, and their associates by individual description, was to be enjoyed by them in a corporate capacity as "Proprietors of the Colony of Transylvania," and they lost no time in entering upon their new possessions. The treaty was no sooner signed, on 17th March, 1775, than Boone was dis- patched with a score of expert woodmen to mark and clear a trail to the banks of the Kentucky, where the chief office of the new land company was to be located. He made such speed, in spite of Indian attacks and the loss of one fourth of his force, that he commenced on the Ist April the erec- tion of the "Station" at Boonesborough. The quadrangle of cabins was completed by the Ist June; but before that time Henderson and certain of his associates had arrived, hunters and land-seekers had congregated in some numbers, and the machinery of a colonial government had been devised and put in motion.
The scheme of Henderson was the last appearance on American soil of the old idea of government by lords pro- prietors. It was too late for success, and could hardly have
" The deed of conveyance is given in full by Butler, History of Kentucky (second edition), p. 503.
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maintained itself had no opposition been shown by the authorities of Virginia. Its career was brief and its history very curious, and totally unlike that of any American com- munity since the original colonial grants.
The proprietors were so energetic that they issued a call for an election of delegates, caused the elections to be had, and assembled the chosen representatives at Boonesborough on the 23d May, 1775.
The record of these proceedings has been preserved and published,' as has also a diary kept by Henderson.2
It is to the credit of the American pioneer that his first unaided essay in the organization of a community under laws of their own making should have been pursued with the decorum and orderly regularity that marked the proceed- ings of the assemblage called by the Transylvania proprie- tors. Their journal begins thus :
"Journal of the Proceedings of the House of Delegates or Representatives of the Colony of Transylvania, begun on Tuesday, the 23d of May, in the year of our Lord Christ 1775, and in the fifteenth of the reign of his Majesty, King of Great Britain.
"The proprietors of said colony having called and required an election of Delegates or Representatives to be made for the purpose of legislation, or making and ordaining laws and regulations for the future conduct of the
1 Butler, History of Kentucky (second edition), pp. 506-515.
2 Collins' History of Kentucky, Vol. II, p. 498, and following. In the collection of R. T. Durrett is a manuscript copy of the journal of Col. Henderson, and of the rec- ords of the Transylvania Colony, and indeed of all the papers connected with this matter. These are the only full copies known to the writer.
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inhabitants thereof, that is to say, for the town of Boonesborough six mem- bers, for Harrodsburg three, for the Boiling Spring Settlement four, for the town of St. Asaph four, and appointed their meeting for the purpose afore- said on the aforesaid 23d of May, Anno Domini 1775.
"It being certified to us here this day by the Secretary that the fol- lowing persons were returned as duly elected for the several towns and settlements, to-wit: ... The House unanimously chose Colonel Thomas Slaughter, Chairman, and Matthew Jouett, Clerk, and after divine service was performed by the Rev. John Lythe, the House waited on the proprie- tors and acquainted them that they had chosen Mr. Thomas Slaughter Chair- man, and Matthew Jouett Clerk, of which they approved; and Colonel Richard Henderson, in behalf of himself and the rest of the proprietors, opened the convention with a speech, a copy of which, to prevent mistakes, the chairman procured."
1
The convention that thus inaugurated its legislative labors comprised several men who bore an important part in the later history of the West. Daniel Boone and his brother, Squire Boone, together with Richard Callaway, were of the representation of Boonesborough. John Lythe (an ordained Episcopal clergyman) and James Douglass sat for Harrods- burg, James Harrod for Boiling Spring Settlement, and John Todd (afterward Governor of the Illinois, and killed" at the Blue Licks), with John Floyd, represented the group of set- tlers that Ben Logan had collected at St. Asaph (now Stan- ford).
The delegation was an ample one for so small a constitu- ency; for, counting the company that Henderson brought
·
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with him, there were but sixty-five riflemen at Boonesbor- ough, and the total population of Kentucky at the time has been estimated as not exceeding two hundred and thirty men.' There was not a white female within the territory .?
The preamble of their proceedings might be supposed to indicate harmony between the influential pioneers who were delegates and the Transylvania proprietors, and an acquies- cence in the title as derived from the Cherokees.
The ceremonious attendance of the body of delegates upon Col. Henderson, as the representative of the proprie- tors, and his condescending approval of their choice for chairman and clerk, smacked of ancient colonial usage, and it can hardly be doubted that Henderson and his associates contemplated the establishment of a proprietary government as nearly as possible on the model of those existing by royal grant.
Their serious scheme was to dispose of their lands between the Kentucky and the Cumberland. The govern- mental features of the assemblage at Boonesborough were forced upon them. The regulation of the franchise, the making of laws and appointment to magisterial duties, was
' Collins' History of Kentucky, Vol. II, p. 509. Morehead, Boonesborough Address, p. 41, estimates the number as 150.
2 Boone brought his wife and daughter to Boonesborough in June, 1775. Mrs. Harrod, Mrs. Denton, and Mrs. McGary arrived at Harrod's Station in September of the same year.
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either reserved in their intention for arrangement by a char- ter which they hoped to secure, or left to await the develop- ment of the future.
But the outlook for the Transylvania Company was far from encouraging, notwithstanding the apparent harmony of its House of Delegates and Proprietors.
Lord Dunmore, Governor of Virginia, had already issued a proclamation against "one Richard Henderson and other disorderly persons, his associates, who, under pretense of a purchase from the Indians, contrary to the aforesaid orders and regulations of His Majesty, has set up a claim to lands of the crown within the limits of the colony;" denouncing the treaty of Watauga and the Transylvania scheme. Hen- derson, in his speech to the delegates, alludes to this as being "an infamous and scurrilous libel lately printed and pub- lished concerning the settlement of this country, the author of which avails himself of his station, and under the specious pretense of proclamation, pompously dressed and decorated in the garb of authority, has uttered invectives of the most malignant kind, and endeavored to wound the good name of persons whose moral character would derive little advan- tage by being placed in competition with his, charging them, among other things equally untrue, with a design 'of forming an asylum for debtors and other persons of desperate circum- stances,' placing the proprietors of the soil at the head of a
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lawless train of abandoned villains, against whom the regal authority ought to be exerted, and every possible measure taken to put a stop to so dangerous an enterprise.""
Governor Martin, of North Carolina, also denounced vig- orously and promptly the treaty made within the jurisdiction of his government, and the attempt to obtain Indian lands by private contract. He explicitly declared the Watauga purchase illegal.2
The North Carolina proprietors, thus disowned at home and confronted by Lord Dunmore's assertion of Virginia's ownership and jurisdiction, must have been convinced that their pretensions would find no favor, judged by the prece- dents of royal colonies. They had distinctly ignored the prohibitions of the Proclamation of 1763, and could scarcely hope for their enterprise a better treatment at Court than had been accorded by the two Governors.
It may have been this thought, or it may have been pure patriotism-perhaps both motives entered into their action- that induced the proprietors when they met in September, 1775, at Oxford, in Granville County, North Carolina, to prepare a memorial addressed to the Continental Congress at Philadelphia.
* Henderson's speech is given in Butler (second edition) and in Collins, Vol. II, p. 503. The proclamation of Lord Dunmore will be found in Force's American Archives, Vol. II, p. 174.
2 Ramsay, History of Tennessee, p. 126.
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The purport of this document (along with which went an argument for the legality of the Watauga purchase), was that the proprietors "having made this purchase from the abo- rigines and immemorial possessors -the sole and uncon- tested owners of the country-in fair and open treaty, and without the violation of British or American law whatever, are determined to give it up only with their lives requesting that Transylvania might be added to the number of united colonies, having their hearts warmed with the same noble spirit that animates the colonies, and moved with indig- nation at the late ministerial and parliamentary usurpations, it is the earnest wish of the proprietors of Transylvania to be considered by the colonies as brethren engaged in the same great cause of liberty and mankind."!
The bearer of the memorial, James Hogg,2 one of the proprietors, was not received by the Congress. The ill-suc- cess of his mission was largely attributable to the strong opposition which Patrick Henry expressed to the proprie- tors' claim. He had been consulted in 1774 by Col. William Byrd and John Page upon the possibility of purchasing lands from the Cherokees, and was informed that the Indians were willing to treat on the subject. He testified at a later date that :
I Collins, History of Kentucky, Vol. II, p. 511; Morehead, Boonesborough Address, p. 36.
2 James Hogg, native of Augusta County, Va., and brother of Peter Hogg, drafts- man of the remonstrance against Transylvania Colony.
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"Not long after this and before any treaty was Resolved on, the Troubles with Great Britain seemed to Threaten Serious Consequences, and this Deponent became a member of the first Virginia Convention and a mem- ber of the first continental congress, upon which he determined with him- self to disclaim all Concern and Connection with Indian Purchases, for the Reasons following, that is to say: He was Informed shortly after his arrival at Congress of many Purchases of Indian Lands, shares in most or all of which were offered to this Deponent and Constantly refused by him, because of the Enormity in the Extent to which the Bounds of those Purchases were carry'd. Another Reason for this Refusal was that Disputes had arisen on the subject of these purchases, & this Deponent, being a member of both Congress & Convention, conceived it improper for him to be concerned as a party in any of these partnerships on which it was probable he might decide as a Judge. The Deponent says he was further fixed in his Determination not to be concerned in any Indian Purchase whatever, on the prospect of the Present War, by which the Sovereignty & Right of Disposal in the soil of America would probably be claimed by the American States.
"After conversing with the said Wm. Byrd, & Communicating his senti- ments freely on the subject, the Deponent saith that the scheme dropt, nor did it proceed further than is above related. The Deponent further says that Wm. Henderson & his Partners very soon after their supposed Pur- chase joined in a letter to this Deponent, in which was contained, as this Deponent thinks, a Distant though plain Hint that he, the Deponent, might be a partner with them. The Deponent also says he rec'd a great number of Messages from Messrs. Henderson & Co., inviting him to be a partner ; that Mr. Henderson, in his own person, & Mr. Allen Jones (a partner in the purchase), both apply'd to the deponent to join him in their schemes, but the Deponent uniformly refused, & plainly Declared his Strongest Disapprobation of their whole proceedings, giving as a Reason that the People of Virginia had a right to the back country derived from their Charter & the Blood and Trensure they expended on that account. The Deponent says he is not now nor ever has been concerned, directly or indirectly, in any Indian Purchase of "Lands, & that he knoweth nothing of Mr. Henderson's contract." 1
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