To Thomas Jefferson from Harry Innes, 6 December 1799
From Harry Innes
Frankfort Kentucky Decr. 6th. 1799
Dr. Sir
Agreably to my promise I have proceeded to get some certificates respecting the Murder of the Indians which caused the War with them in 1774, as also that Michael Cressap was guilty of an outrage, upon two of those unhappy people preceeding that opposite the mouth of Yellow Creek, & that it was perpetrated by him as far as it can be now ascertained without provocation.
The transactions are of an old date & the people who resided in that part of the Country, entertaining strong prejudices against Indians, generally approbated every act which tended to destroy any of those people, the minds therefore of the white people who resided on the frontiers1 were not so strongly impressed with the impropriety of the frequent murders which were committed by the whites upon the Indians as those of the interior part of the country, therefore cannot now minutely detail the whole of the circumstances.
If the inclosed certificates are not sufficiently explicit I will take them over upon your stating interrogatories—Other certificates can be procured respecting the affair at yellow Creek—but I do not know whether any other circumstance can be proved respecting Cressap. I am well acquainted with Jacob Newland he is a man of integrity Charles Polke & Joshua Baker both support respectable characters. I pray you to excuse the interlineations in the Certificates, Polke & Newland were in the woods perpetuating testimony—I had to write on my knee, & no opportunity of copying them.
Having long been of opinion that it was extremely burthensome to suitors in Chancery to be obliged to produce their Witnesses in open Court, & having at the last Fœdral Court held in this state asscertained the fact, I shall take the liberty of stating a single case to you in support of my opinion, hoping that if it makes the same impression upon your mind that it has done on mine, your influence will be exerted to remove the evil—Our innumerable land suits are all ended in a Court of Chancery; & the variety of facts, which generally arise in the investigation of the contending Claims, produce a number of witnesses, viz. the identifying—Cabbins, other improvements, marked Trees, Springs, the antient & present names of Watercourses, Buffaloe roads, Licks & the roads which were first traveled from one station to another &c. &c.
The case that occurred the other day is not an extraordinary one, yet the Plf & Deft. had summoned 12 Witnesses—the indisposition of one Witness produced a continuance of the Cause, & it being a rule of Court that the party praying a Continuance shall pay the expence—the Plf had to pay 150$ & 35 Cts.—this included milage & 5 days attendance; the procrastination arose from other business which preceeded it & which engaged the Court—the Plf who wished the benifit of the sick witness, was anxious for trial, & kept his Witnesses attending, but his Counsel upon considering the application & materiallity of the Witness in the cause would not proceed—the Plf was obliged to sell a negroe boy in consequence of it, he is rather needy.
There are about one hundred Chancery land suits now depending in the Court & from the experience I have had in Courts as a Lawyer & a Judge, am will assured that one half of them will require as many Witnesses as the one alluded to. The present mode of trying suits in Equity by Parol testimony will not only increase expence, but delay—the instance I have adduced proves the fact—there is Sir still a greater objection to this mode of trial than as yet stated—Matters of fact are to be tried by a Jury—Jurors of bystanders are too often incompetent to the task—there are several facts submitted—a variety of testimony introduced & a number of Witnesses—Jurors seldom take Notes—trusting to their recollection—they not only forget but misapply—their Verdicts are contrary to evidence & a new Trial is granted—this doubles the expence—The experience of this Country has taught us the impropriety of that mode of proceeding, which was attempted under the Original jurisdiction given to the Court of Appeals.
If depositions were used, New trials would but seldom occur, because the Jurors could & will on their retirement, read & apply the testimony. The idea is pleasing in theory, but upon trial, is oppressive & impracticable in this Country.
There is another subject which is of importance to the Western Country & to the Union too, & on which I have maturely reflected; a subject on which the senate have passed a Bill, that has been arrested in its passage in the Ho. of Representatives, respecting a change in the Judiciary on which I shall trouble you with a few comments; they contain the sentiments of a number of respectable fellow citizens as well as my own; being addressed to you in a legislative capacity, presume an appology is unnecessary, well knowing that the pursuits of your life have been for the good of Society.
I have been informed that the Bill contemplates establishing a Circuit Court & to fix the Circuit to North Carolina, Tenessee & Kentucky—My first objection to the plan is probable delay— arising from the extent of this Circuit—from Frankfort to Knoxville 220 miles—from Knoxville to Raleigh between 4 & 500—a rough road—thinly inhabited in places—bad accomodations & difficult to travel in wet seasons on account of the numberless watercourses, over which there are neither, Bridges or Ferrys. The inconvenience which would result to suitors by the non-attendance of a Judge is easily conceived & especially by a gentleman of your experience—
A second objection arises from a political consideration, to you sir I can venture an explanation—We are really afraid of Eastern political influence creeping in among us by an improper appointment, which might create discord among us & division in the Court upon particular questions.
A third objection—is, the inconvenience of having a judge sent to us who is a stranger to our Land Law—a Law which is full of ambiguity—a Law which to do justice to the Community, must be construed in part by local circumstances, knowledge of which must be acquired by being conversant in the land business of the Western Country. By having a Judge who has had experience in the land business, there would be a greater probability of union in the Court & be a means of preventing frequent Appeals, which is much dreaded.
Is it not practicable, & would it not prove really benificial to establish a Circuit, to be composed of the States of Tenessee & Kentucky & of the Territory North West of the Ohio—appoint two Judges to ride the Circuit alternately who are resident in the Western Country—The Land titles in Tenessee & Kentucky have been acquired much alike—a part of the Territory No. West of the Ohio, viz the Military claims between sciota & the little Miamis in the same manner—And I am informed that the Legislature in the Territory now in session are adopting many of our laws—In addition to this it will be a means of desiminating political information among the inhabitants North of the Ohio who at present know or hear but little except what flows from a ministerial paper, published under the inspection of their Executive.
It is the evident interest of the Western Country to move unanimously in all great questions—Our political consequence & the maintenance of our Rights depend upon it.
My letter is long, but the subjects I flatter myself merit your attention
With sentiments of respect & esteem I am Dr. Sir your friend & Servt.
Harry Innes
N.B. I have written to Messrs. Brown Davis & Fowler upon the same Subjects—
RC (DLC); at end of text: “The Hble Thos. Jefferson”; endorsed by TJ as received 30 Dec. and so recorded in SJL. Enclosures: (1) Certificate of Charles Polke of Shelby County, Kentucky, 15 Nov. 1799, in Innes’s hand, signed by Polke, stating that in April or May 1774 a group that gathered at his house on Cross Creek proceeded to the house of Joshua Baker about 16 miles away on the Ohio River across from the mouth of Yellow Creek, where under the principal leadership of Daniel Greathouse the party “murdered several Indians among whom was a woman said to be the sister of the Indian Chief Logan”; stating also that Michael Cresap was not involved in that incident, although sometime before “it was currently reported” that he had murdered one or two Indians on the Ohio River below Wheeling (DLC: TJ Papers, 105:18086). (2) Certificate of Jacob Newland, also of Shelby County, 15 Nov. 1799, following Polke’s certificate on the same sheet, in Innes’s hand and signed by Newland; declaring that in June or July 1774 he joined a company recruited by Michael Cresap, who “several times” told Newland of having killed “two or three” Indians on the Ohio sometime prior to the killings “by Greathouse & others at Yellow Creek”; Newland stating also that he cannot recall Cresap giving any reason for the killings by his hand, “but never understood that the Indians gave any offence” (same). (3) Statement by Innes, undated, following Newland’s certificate on the same sheet, entirely in Innes’s hand and signed by him, attesting to the statements of Polke and Newland; stating also that on 14 Nov. 1799 Innes met by accident Joshua Baker, who said that the murder of the people opposite the mouth of Yellow Creek “was perpetrated at his house by 32 men led on by Daniel Greathouse”; that 12 people were killed in that incident and 6 or 8 others wounded, the dead including “a sister & other relations of the Indian Cheif Logan”; that Cresap was not among the killers then, but some days earlier Cresap “& a party of land improvers” murdered two Indian men traveling down the Ohio from Baker’s house, this deed having been done “if not by Cressap himself with his approbation, he being the leader of the party & that he had this information from Cressap” (same). The enclosures were printed in the Appendix to the Notes on Virginia Relative to the Murder of Logan’s Family (see , 237, 241–2).
Fœdral Court held in this state: Innes had been U.S. district judge since 1789 ().
In his messages to Congress of 3 Dec. 1799 and 22 Nov. 1800 John Adams called attention to the organization of the federal judiciary, but only in February 1801, when “An Act to provide for the more convenient organization of the Courts of the United States” became law, did a bill to restructure the courts receive the approval of both houses of Congress. That statute placed Tennessee, Kentucky, and the territories north and west of the Ohio River into a judicial circuit and abolished the district courts in Kentucky and Tennessee in favor of a three-judge circuit court panel ( 3:527, 725; , 2:89–91, 97).
Messrs. brown davis & fowler: Kentucky’s congressional delegation, minus Federalist Senator Humphrey Marshall; that is, Senator John Brown and Representatives Thomas T. Davis and John Fowler (Biog. Dir. Cong., 63, 883, 1022).
Through Brown, TJ received a certificate of William McKee of Lincoln County, Kentucky, dated 18 Dec. 1799, stating that when McKee was an officer of Virginia militia in 1774 he “heard repeated conversations concerning an extraordinary speech made at the treaty, or sent there, by a chieftain of the Indians, named Logan, and heard several attempts at a rehearsal of it. The speech as rehearsed excited the particular attention of said William, and the most striking members of it were impressed on his memory.” McKee stated also that after TJ’s Notes on Virginia appeared “he was struck, with the speech of Logan as there set forth, as being substantially the same, and accordant with the speech he heard rehearsed in the Camp as aforesaid.” The copy of McKee’s statement that was sent to TJ bore an attestation signed by James Speed, Jr., and Joseph Hamilton Daveiss at Danville, 18 Dec. 1799. The statement and attestation were printed in the Appendix to the Notes on Virginia, omitting a notation by Woodson G. Wren, who had made the copy of the certificate, and misinterpreting Daveiss’s signature as “Dewees” (MS in DLC: TJ Papers, 105:18096, with a diagonal stroke through Wren’s notation and signature, apparently as a direction to the printer of the Appendix, and one instance of “at” changed to “in,” both probably by TJ; , 244–5). Daveiss, having heard that TJ “was making some enquiries” in response to Luther Martin’s accusations, had solicited McKee’s statement and sent it to Brown from Danville on 21 Dec. (RC in same, 106:18097; endorsed by TJ: “Mc.kee Colo Wm.”; the letter, which does not appear in the Appendix, has been struck through with a diagonal line and has a note, “not to be copied,” in TJ’s hand at head of text).
1. Preceding five words interlined.