Thomas Jefferson Papers

I. Notes of Thomas Burke’s Speech before the House of Delegates, [19 November 1777]

I. Notes of Thomas Burke’s Speech before the House of Delegates

[19 November 1777]

Jurisdiction of this state extends to lands in question.

Henderson & co. nevertheless a right to the soil. Altho’ he must shew their right to the whole, they wish only to retain a very small part and give up the rest in consideration of protection.

To make a good deed 3 essentials.

  • 1. That it be bona fide made.
  • 2. feoffor’s right to sell.
  • 3. feoffee’s right to purchase.
  • 1. Price and other depositions prove deed bona fide executed for valuable consideration.
  • 2. Indians have a right in the grounds they occupy.
    • the right which god and nature gave them.
    • British empire and colony of Virga. have hitherto treated with them on that ground and therefore conclusive.
    • Cherokees derive right to lands in question thus—
      • if 6. nations had a right they ceded that right to crown of Gr. Brit. by the treaty of Fort Stanwix.
      • they could only convey a feudal right to the crown and not a right to the soil.
      • but whichever the right be it has been conveyed to the Cherokees, who therefore might well convey to Hend. & co.
      • by treaty of Lochabar grounds westward of a line from Holston to G. Canaway ceded to Cherokees.
      • H. of burgesses in 1769 say “a country westward of this line to the Ohio to be purchased of the Cherokees would open an advantageous trade” and address Ld. Botett. on the subject.
      • the community under another government gave up the point.
      • the Cherokees have obtained all the right that could have derived from the treaty of F. Stanwix by cessions of the crown of Gr. Brit. and of the colony of Virga.
  • 3. Parties who purchased had a right so to do.
    • every freeman has right to use his own as he pleases, provided it be not to the prejudice of others.
    • on what ground can the purchaser’s right be disputed.
    • upon two grounds.
    • 1. being against a decree of the crown of Gr. Brit.
    • 2. the great extent of territory.
    • 1. Hend. & co. knew of, and despised the prohibition of the crown as tyrannical.
      • property of the soil not in the feudal sovereign.
      • Indignation against the royal proclamation.
      • wherever a subject goes he carries all his rights.
      • Rom. tree.
    • 2. Extent of territory.
      • act of assembly no operation in this case.
      • difference of principles that govern the legislature and judge.
      • is any law which forbids purchase beyond such a quantity?
      • altho’ inconvenient, was not unlawful.
      • where there is no right, assembly will not exercise powers.
    • Hend. & co. intend to give up all and take back part as the gift of the state.
      • Company been at great expence in exploring &c. &c.

N (DLC); with TJ’s title at top of page: “Notes of Burke’s argum. before H. of Deleg. in the case of Henderson’s claim to Kentucke.” Docketed by TJ: “Henderson & Co. Notes of Burke’s argum.”

The opening section of Thomas Burke’s speech proves that it was based upon Richard Henderson’s memorial of 29 Oct. 1778 in which he offered to make a compromise settlement (Lester, Transylvania Colony, p. 230; Abernethy, Western Lands, 220). TJ did not take his seat at this session until 30 Nov. and hence could not have been present at the time the speech was made. It is probable that he based these notes on those of some other member who was present and made an outline of Burke’s argument.

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