Bills for Dividing Fincastle County
Editorial Note

The involved and at times impenetrable legislative history of these two Bills requires special comment. For this was not merely another county division: it was the first great collision between Jefferson and the powerful land speculators. During the two years preceding this session of the Assembly, Jefferson’s statements in the Summary View, in his correspondence with Pendleton, and in his Drafts of a Constitution had revealed his liberal attitude respecting the uses and potentialities of the vast expanse of fertile lands lying beyond the mountains and within the charter claims of Virginia. To him this was a resource for the development of a country of independent farmers; unappropriated lands would have been, by his Constitution, used for settlers and each person not owning fifty acres of land would have been privileged to appropriate that much; no Indian purchases could have been made without the sanction of the legislature. To others—including many of the most powerful leaders in Virginia and other states—the West offered an unparalleled opportunity for profit. The theme of this great conflict between the aims of statesmanship and the schemes of land-capitalism, together with its impact upon the new institutions being set up, has been explored by many competent scholars, but even those who have dealt with that aspect of the issue involved in the affairs of the Transylvania Company have not explored the intricacies of the history of these Bills to divide Fincastle County. Since Jefferson’s liberal statesmanship in behalf of the western settlers triumphed in these Bills over the profit-seeking and proprietary interests of land-capitalism, represented by a relatively few powerful individuals who sought special privileges from the state legislatures and from the Continental Congress and who had influential official connections that ramified in many ways—socially, politically, and economically—, it is important that the struggle over the Fincastle Bills be explored. Indeed, the Bills themselves could not be disentangled without great difficulty unless their legislative history were followed step by step. Once this is done, certain clues to the method by which Jefferson gained his victory may be noted, and the Bills themselves, as documents, may be more accurately presented.

The Transylvania Company, organized by Judge Richard Henderson of North Carolina, based its claim to lands between the Cumberland and Kentucky rivers on an Indian purchase made on 17 March 1775 with the Cherokee. Most of this vast tract of fertile land lay within the charter claims of Virginia, claims that had been first officially stated when the Constitution of 1776 was adopted. Styling themselves the “true and absolute Proprietors of the Colony of Transylvania”—terminology more appropriate to the seventeenth than to the eighteenth century—, Henderson and his associates set about the business of establishing a government for their princely domain. Dispatching an emissary, James Hogg, to the Continental Congress in the autumn of 1775, they endeavoured to have Transylvania admitted to the Union as a fourteenth colony. In Philadelphia Hogg conferred with Jefferson and Wythe. The former informed Hogg that Transylvania’s claim lay within the charter limits of Virginia, but also asserted his desire to see new governments established within those limits so long as they were based on liberal principles and properly united with Virginia.

Henderson had been present at Williamsburg with most of the members of his Company during the Convention of 1776 and had presented a petition on 15 June, asserting, with bland disregard for facts, that they had “never entertained thoughts of such an absurdity” as the establishment of a separate government; that neither the Convention nor the Congress had any jurisdiction over the private title to the soil involved in their purchase; that “some interested, artful, and designing persons, by cunning, specious and false suggestions” had raised doubts about the validity of their title; that they were ready to subject themselves “to such government as should be placed by authority over them.” The Convention replied to this by its resolution of 24 June 1776 to the effect that no private purchases of land from the Indians should be considered valid until approved by the legislature; the Constitution adopted a few days later, drawing upon Jefferson’s Draft, gave this resolution the force of substantive law.

The “interested, artful, and designing persons” complained of by Henderson and his associates had met at Harrodsburg on 8 June as an assembly of anti-Transylvania settlers. Its presiding officer was John Gabriel Jones, nephew of the Gabriel Jones who is said to have been associated with Jefferson in the practice of law and who was the father-in-law of John Harvie. This assembly petitioned Virginia to set off West Fincastle as a separate county and chose as members of the House of Delegates John Gabriel Jones and George Rogers Clark, whom Jefferson had known since boyhood. But Henderson and his associates also had powerful connections. Patrick Henry had flirted with Transylvania in 1775, though now, as governor, he fell in with Clark’s plans. There were others in the Virginia legislature interested in Henderson’s scheme: Arthur Campbell, for example, who is a key figure in the history of the Fincastle Bills since he was county lieutenant of Fincastle, though at the same time he aspired to be surveyor for Transylvania. Thus with the arrival of Jones and Clark in Williamsburg at the opening of the legislature, and with the ubiquitous Henderson and his associates also present, the issue was joined.

Jones and Clark presented the Harrodsburg petition on 8 Oct., asserting that the “absolute proprietors” of Transylvania intended to erect a “new independent province”; that civil and military officers had been appointed by Henderson and his group, writs of election issued, assemblies convened, a land office opened, and lands sold at exorbitant prices; that the inhabitants of the western part of Fincastle questioned the validity of the Transylvania title, acknowledged themselves within the State of Virginia, and had, after a duly called meeting, elected two delegates who prayed to be admitted to the House. At the same time, Jones and Clark presented a petition asking that the western part of Fincastle be set off as a separate county. On 11 Oct. the House resolved that the delegates could not be admitted, since the inhabitants of western Fincastle were not “allowed by law a distinct representation in the General Assembly.” At the same time the Committee on the State of the Country reported the opinion that the inhabitants of the western part of Fincastle “ought to be formed into a distinct county, in order to entitle them to such representation, and other benefits of government.” Robert Carter Nicholas, Carter Braxton, and Jefferson were appointed a committee to bring in a Bill for this purpose.

Braxton reported the Bill (No. i below) on 15 Oct. The next day it was read the second time and recommitted, this time to a committee composed of Jefferson, who was named first, the members from Augusta (Thomas Lewis and Samuel M’Dowell), and the members for Bote-tourt (John Bowyer and Patrick Lockhart). Another significant fact occurs from this recommitment: in an issue which involved also the conflicting interests of Tidewater and Piedmont, it is noteworthy that the first committee had included Robert Carter Nicholas and Carter Braxton, both outspoken conservatives from the Tidewater and with land-speculating connections. These were dropped in the recommitment, and, instead of being the minority of a committee dominated by conservatives, Jefferson became the head of one made up of representatives from the western counties. The new committee lost no time in coming to an agreement, reporting their amendments to the Bill the next day, 17 Oct. These were accepted, the Bill passed its second reading, and it was ordered to be engrossed and read a third time. Twice the Bill was postponed and finally, 26 Nov., was defeated. The Bill merely provided for the division of Fincastle into two counties, the western part of Fincastle (embracing most of the Transylvania claim) to be called Kentucky, and the remainder of the parent county of Fincastle to be called Washington.

This defeat of the first Bill is puzzling in view of the extraordinary speed with which it and its amendments reached and passed the second reading. But the Committee on Propositions and Grievances—a committee numbering almost half the entire house and including Braxton, Carter, Nicholas and other conservatives—had nevertheless continued to consider the petition from the inhabitants of western Fincastle that had, on 11 Oct., been favorably reported on. The reason for this seems obvious. The shift of the Bill to another committee, Jefferson’s emergence as head of this committee having charge of amending the Bill, its introduction on 17 Oct., and its passing the second reading meant that he had clearly been successful in mobilizing western support. With the order to have the Bill engrossed (and it actually was engrossed), Jefferson, no doubt feeling triumphant over his victory for the western settlers against the land speculators, obtained leave from Friday, 18 Oct., until the following Monday. During this week-end Henderson and his associates must have engaged in considerable activity. For, on the same day that Jefferson departed, the final reading of his Bill was postponed until the following Thursday, and on Tuesday, 22 Oct., Braxton reported from the Committee on Propositions and Grievances that the petition of the inhabitants of western Fincastle to be set off in a separate county was reasonable, and his committee was thereupon ordered to bring in a bill for this purpose, surely a strange proceeding in view of the fact that the House had already arrived at this conclusion and had, in fact, twice read and approved the amendments of such a bill. But Braxton and the land speculators and Tidewater planters who were aligned with him took this course because the amendments Jefferson and his followers had made to the Bill introduced by Braxton on 15 Oct. were clearly not to their liking (see notes on Bill No. 1). Such maneuvers no doubt aroused Jefferson to renewed activity, for, two days later, 24 Oct., the House ordered the Committee on Propositions and Grievances to cease its proceedings on the Fincastle petition, though it did not order that committee to refrain from bringing in the bill that it had been directed on 22 Oct. to draw up. But Jefferson also was a member of the Committee on Propositions and Grievances, and the struggle then was transferred to the unrecorded silences of that large and important committee. We can only guess at the intensity of the fight that there took place, but the outcome provides a clue to its course: on Saturday, 26 Oct., it was Jefferson, not Braxton, who reported the new Bill to divide Fincastle. There were now two Fincastle Bills before the House, both bearing the same title, and the one that Jefferson introduced on 26 Oct. was almost identical with that which Braxton had originally brought in on 15 Oct. On 30 Oct. this new Bill passed its second reading and was thereupon referred to a committee which Jefferson headed and which included Charles Simms of West Augusta, Cuthbert Bullitt of Prince William, and the members for Fincastle, Augusta, and Botetourt—all, save Bullitt, representing western counties; Simms, Campbell, and perhaps others of the committee, however, were in one way or another identified with land speculation.

Nevertheless, the appointment of this committee on the new Bill is testimony to the quality of Jefferson’s leadership on this issue: twice he had displaced Braxton; twice he had become the head of a committee of western representatives; and twice he had assumed charge of bills that had been sponsored by Braxton. The victory was finally won in the Committee on Propositions and Grievances between 24 and 26 Oct. When Jefferson reported the new Bill on the latter date, it was Braxton’s Bill (see notes to Bill No. II), but he and his followers had no intention of allowing it to remain in that state: it was merely more convenient to amend it than to draw a third bill. Jefferson’s process of amending was thoroughgoing. When he reported on 23 Nov. that he and his committee had agreed on several amendments, he must have meant several were embraced in one, for the first amendment was to strike out everything following the initial word “Whereas” in Braxton’s bill and then to substitute therefor a completely new bill. The “amendments” were read twice and agreed to; two days later the Bill passed its third reading, and Arthur Campbell, one of Henderson’s supporters, was designated to carry to the Senate a Bill that symbolized the worst blow that the founder of Transylvania had yet experienced, a blow delivered primarily by Jefferson, though with the support of the western representatives.

Jefferson’s “amendment,” compared with the bill introduced by Braxton, reveals the force and strength that he threw into the fight. For it provided among other things that Fincastle should be divided into three instead of two counties. If Braxton and the conservatives had left well enough alone and had not endeavored to thwart his amendments to Braxton’s first bill, their defeat would not have been so stinging. What they had done was not to frustrate Jefferson, but to arouse and unite his followers so that he was able to give to the western part of the state six instead of four new representatives. More, the Bill included a section which would have made it impossible for surveyors of the great land companies to operate independently of a single official surveyor for each county. Going further, the Bill would have made it impossible for any civil or military officer in Washington and Kentucky counties to hold office if he had taken an oath of office “to the pretended Government of Richard Henderson Gentn. and Company,” unless he first made a public renunciation of that government to the Governor and Council. Both of these sections were struck out of the Bill, one probably by the Senate, since the Senate offered three amendments, of which the House accepted one and rejected the others. Both may even have been inserted merely for reasons of political strategy, as an advanced position that Jefferson and his supporters knew they would have to yield, but which would have bargaining value. The second of these sections especially has the appearance of this, for, once Kentucky and Washington counties were established under Virginia law, “the pretended Government of Richard Henderson Gentn. and Company” could never again be set up without open rebellion against Virginia, and this section of the Bill, therefore, would have little meaning beyond a punitive one.

Jefferson’s “amendment” to Braxton’s bill not only asserted the sovereignty of Virginia over the Kentucky region claimed by Transylvania, but it dealt another blow to the conservative Tidewater dominance over political affairs within the state. Arrayed against him in this struggle were the most powerful forces in Virginia—the plantation aristocracy of the East and their allies, the land-capitalists, who sought to exploit the West for profit. Against this powerful combination he had won a signal victory. There were other results besides these. The Fincastle Bill was not, in itself, a part of his legislative reform program, but in seizing upon it because of the great issue involved, he no doubt created animosities among the leaders of the Tidewater whom he had defeated, and thus jeopardized parts of his other program, such as the Court Bills and the Bill for Religious Freedom. Yet, offsetting this, he had demonstrated his skill as a legislative leader; he had mobilized the forces of the western part of the state; and in speaking for justice, for liberal land tenure, and for the use of the West for settlers and not for exploiters, he laid the foundation of a following that three years later elevated him to the governorship as the successor to that other leader of the West, Patrick Henry. Perhaps the greatest significance of the Fincastle Bills is the conclusive evidence presented to show Jefferson’s skill as a legislative leader and his emergence as an acknowledged champion of the western settlers.

(On this subject, see C. W. Alvord, The Mississippi Valley in British Politics, Cleveland, 1917; Abernethy, Western Lands, p. 123–35, 162–8; Rudolf Freund, “John Adams and Thomas Jefferson on the Nature of Landholding in America,” Land Economics, xxiv [1948], 107–19; W. S. Lester, The Transylvania Colony, Spencer, Ind., 1935; A. M. Lewis, “Jefferson and Virginia’s Pioneers,” Miss. Valley Hist. Rev., xxxiv [1948], 551–88; F. J. Turner, “Western State-Making in the Revolutionary Era,” Amer. Hist. Rev., i [1895], 70–87, 251–69. The legislative history of these Bills is found in JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1776, 1828 edn., p. 4, 13, 15, 16, 22, 28, 33, 52, 67, 70, 87; the Bill as finally enacted is in Hening, ix, 257–61.)