Comments on Petition of Kentuckians, [27 August] 1782
Comments on Petition of Kentuckians
Printed copy ( pp. 146–47). See Comments on Temple, 1 August 1782, headnote.
Editorial Note
About two years had elapsed since discontented settlers in Kentucky addressed two memorials to Congress asking for statehood. At that time a motion by the delegates of Virginia for Congress to disclaim jurisdiction by referring the petitions to Governor Jefferson had been defeated (, II, 65, and nn.). In his summary of the contents of the present memorial, which also requested that Kentucky be admitted to the federal union as “a separate and independent State,” Charles Thomson noted that, besides stressing the usual grievances because of absentee landownership, a remote “Supreme Court,” and a state government so far removed as to lack “justice & energy,” the signers affirmed: “they have taken an Oath of Allegiance & considered themselves subjects of the United States & not of Virginia, that the Charter under which Virginia claimed that Country, had been disolved; that in consequence of the dissolution the Country belonged to the Crown of G. Britain & that by the revolution the rights of the Crown was devolved on the United States” ( pp. 145–46). Among the papers of the Continental Congress there are several undated petitions by Kentuckians asking for statehood, but none of them advances this constitutional argument. A copy of the petition which elicited JM’s comments was enclosed by the Virginia delegates in their letter of 3 September 1782 to Governor Harrison (q.v.). Only printed extracts of this letter are now available.
Judging from Thomson’s summary, the emphasis and the greater sophistication of argument in the present petition suggest that it was not prepared, as one authority assumes, by the same meeting of discontented Kentuckians who in the spring of 1782 requested a redress of grievances by the Virginia General Assembly (Thomas Perkins Abernethy, Western Lands and the American Revolution [New York, 1937], pp. 262–65; , IV, 119; 120, n. 5). Unlike the petitioners to Congress, those who addressed the General Assembly pointed out that they were among the first settlers in Kentucky and owed all “deference” to Virginia as long as she acted “for their safety and defence.” They asked her either to “Create them a power Sufficient for their Controul and better Government” or to “grant them a Separation with your Intercession with the Honourable the Continental Congress for their Incorporation with them” (MS in Virginia State Library; reproduced, with some errors of transcription, in James Rood Robertson, Petitions of the Early Inhabitants of Kentucky to the General Assembly of Virginia, 1769 to 1792 [Louisville, Ky., 1914], pp. 62–65).
After Congress listened to a reading of the present memorial, Arthur Lee asserted that “countenancing such petitions was an insult to the State of Virginia.” In his view, Congress had no jurisdiction whatsoever over the soil of Kentucky or its inhabitants. To hold that “the rights of the Crown devolved upon Congress was a groundless, an extravagant & idle supposition.” For this reason, the petition should have been referred to his state without being read in Congress (, XXIII, 532; p. 146; JM to Randolph, 3 September 1782). Evidently entering the debate immediately after Lee had concluded, JM probably was not surprised by the presentation of the document. Three months earlier Pendleton had informed JM that the memorial was “circulating” in Kentucky for signatures (, IV, 277; 278, n. 11).
[27 August 1782]
Mr Madison supported the propriety of referring the paper to the legislature of Virginia. The State he said had already taken measures to redress some of the grievances complained of. The legislature had divided the Country into Counties, they had established Courts, appointed judges, and brought justice to the doors of the petitioners.1 He was sensible that they were far removed from the seat of Government; that the time would come when the people in that Country must be divided into separate jurisdictions. The Constitution of the State had provided for that event;2 but the Legislature of Virginia & not Congress were to judge when that would be proper. The dissolution of the Charter did not break the social Compact among the people. The Charter was an agreement between the King, the proprietors, and the people.3 Though the King, by the dissolution of the Charter, might succeed to the rights of the proprietors, the rights of the people remained entire, and the King had no right to cut them into separate Governments without their consent.4 He doubted whether the present petition expressed the sentiments of the people in that district; he apprehended there were few if any of the natives of Virginia among the number of the petitioners.5 That the paper read should be referred to the Legislature of Virginia that they might enquire into the facts and determine what was proper to be done. As to the supposition that the right of the Crown devolved on the U. S. it was so extravagant that it could not enter into the thots of any man. If the right of soil devolved why not the right to the quit rents and confiscated estates.6
1. The three counties comprising the District of Kentucky were Fayette, Jefferson, and Lincoln. Several of the principal “measures to redress” had been adopted by the General Assembly on 1 and 2 July 1782 and hence most likely postdated the drafting of the memorial (, IV, 277; 278, n. 11; 376; 395; , pp. 85, 86; , XI, 85–90, 91–92, 100–101, 103; , III, 73, 118, 126; , III, 204).
2. By Article XXI of the Form of Government, Virginia declared that her “western and northern extent,” as granted in the royal charter of 1609, would stand, “unless, by act of legislature, one or more territories shall hereafter be laid off, and governments established westward of the Allegheny mountains” (, IX, 118–19).
3. This basic constitutional position, asserted so often by Virginians, could not be supported by citing an explicit provision of the charter of 1609. That was a grant of land and jurisdictional powers to a corporation, not to the settlers in Virginia except those who were members of the company. Probably reflecting his reading of John Locke, JM implied that “the social Compact among the people” was distinct from and did not depend upon the charter.
4. In the charter, King James I declared on his own behalf and that of “our Heirs, and Successors” that his subjects who should settle in Virginia and “every of their children” born there “shall have and enjoy all Liberties, Franchises, and Immunities” possessed by his subjects who lived “within this our Realm of England.” Certainly this guarantee had not restrained English sovereigns from either dividing or uniting American colonies without the consent of their inhabitants.
5. The earliest settlers in Kentucky had come mainly from Virginia. They were followed during the Revolution by a considerable number of families from the middle Atlantic states, especially from Pennsylvania. Some of these newcomers had been encouraged to move to Kentucky by land speculators resident in Philadelphia (Thomas P. Abernethy, Western Lands and the American Revolution, pp. 262–65).
Hugh Williamson, a delegate in Congress from North Carolina, assured Governor Alexander Martin of that state that “On enquiry there was much reason to believe that the Petition did not originate in the Western Country and it is doubted whether three of those people had ever seen it” (, VI, 545). The reasons for this suspicion were the stronger because the petition purported only to be a true copy of the withheld original. See Virginia Delegates to Harrison, 3 September; JM to Randolph, 3 September; Harrison to Virginia Delegates, 20 September 1782.
6. The Virginia General Assembly had abolished all quitrents by 25 June 1779 (, May 1779, p. 66; , IX, 359; X, 64; , IV, 144, n. 3). For the confiscatory acts, see Pendleton to JM, 26 August 1782, n. 5.
Although JM indulged in hyperbole when he affirmed the inability of any man even to think “that the right of the Crown devolved on the U. S.,” he may have been surprised by the storm of dissent which his statement aroused from Abraham Clark (N.J.), David Howell, Thomas McKean (Del.), and above all from John Witherspoon, his revered teacher at Princeton. One or another of these four men countered JM’s argument by appealing to principles of “truth,” “justice,” “the nature of things,” “the Laws of Society,” “the great law of necessity, which was admitted as a law of nations,” and the law “of self-preservation.” They cited historical precedents, including the Royal Proclamation of 1763. They reminded the delegates from Virginia that the “united and joint efforts of the thirteen states,” and not her exertions only, had broken “the dominion of Great Britain.” McKean bluntly declared: “He is not afraid of Virginia. He hopes no State in the union will ever be so great as to give laws to all the rest, nor that any will be suffered to acquire so much power that the others cannot controul it.” What became of the petition after the close of the discussion is not made clear either by the printed journal or by Thomson’s “Debates.” According to Thomson, Hugh Williamson recommended, in view of the doubt whether the signers “lived on the lands in question,” that “the paper should be dismissed. This brought on a new debate, and at last an adjournment was called for and agreed to” ( pp. 147–50; , XXIII, 532). The petition seems to have been released to the Virginia delegates rather than “filed in the office of the Secretary of Congress,” as the committee of the week had recommended.