CHAPTER XV. Transylvania--A wilderness Commonwealth

You are about a work of the utmost importance to the well-being of this country in general, in which the interest and security of each and every individual are inseparably connected .... Our peculiar circumstances in this remote country, surrounded on all sides with difficulties, and equally subject to one common danger, which threatens our common overthrow, must, I think, in their effects, secure to us an union of interests, and, consequently, that harmony in opinion, so essential to the forming good, wise and wholesome laws.--Judge Richard Henderson: Address to the Legislature of Transylvania, May 23, 1775.

The independent spirit displayed by the Transylvania Company, and Henderson's procedure in open defiance of the royal governors of both North Carolina and Virginia, naturally aroused grave alarm throughout these colonies and South Carolina. "This in my Opinion," says Preston in a letter to George Washington (January 31, 1775), "will soon become a serious Affair, & highly deserves the Attention of the Government. For it is certain that a vast Number of People are preparing to go out and settle on this Purchase; and if once they get fixed there, it will be next to impossible to remove them or reduce them to Obedience; as they are so far from the Seat of Government. Indeed it may be the Cherokees will support them." Governor Martin of North Carolina, already deeply disturbed in anticipation of the coming revolutionary cataclysm, thundered in what was generally regarded as a forcible-feeble proclamation (February 19, 1775) against "Richard Henderson and his Confederates" in their "daring, unjust and unwarrantable proceedings." In a letter to Dartmouth he denounces "Henderson the famous invader" and dubs the Transylvania Company "an infamous Company of land Pyrates."

Officials who were themselves eager for land naturally opposed Henderson's plans. Lord Dunmore, who in 1774, as we have seen, was heavily interested in the Wabash Land Company engineered by William Murray, took the ground that the Wabash purchase was valid under the

Camden-Yorke decision. This is so stated in the records of the Illinois Company. Likewise under Murray's control. But although the "Ouabache Company," of which Dunmore was a leading member, was initiated as early as May 16, 1774, the purchase of the territory was not formally effected until October 18, 1775--too late to benefit Dunmore, then deeply embroiled in the preliminaries to the Revolution. Under the cover of his agent's name, it is believed, Dunmore, with his "passion for land and fees," illegally entered tracts aggregating thousands of acres of land surveyed by the royal surveyors in the summer of 1774 for Dr. John Connolly. Early in this same year, Patrick Henry, who, as already pointed out, had entered large tracts in Kentucky in violation of Virginia's treaty obligations with the Cherokees, united with William Byrd 3d, John Page, Ralph Wormley, Samuel Overton, and William Christian, in the effort to purchase from the Cherokees a tract of land west of Donelson's line, being firmly persuaded of the validity of the Camden-Yorke opinion. Their agent, William Kenedy, considerably later in the year, went on a mission to the Cherokee towns, and upon his return reported that the Indians might be induced to sell. When it became known that Judge Henderson had organized the Transylvania Company and anticipated Patrick Henry and his associates, Colonel Arthur Campbell, as he himself states, applied to several of the partners of the Transylvania Company on behalf of Patrick Henry, requesting that Henry be taken in as a partner. It was afterward stated, as commonly understood among the Transylvania proprietors, that both Patrick Henry and Thomas Jefferson desired to become members of the company; but that Colonel Richard Henderson was instrumental in preventing their admission "lest they should supplant the Colonel [Henderson] as the guiding spirit of the company."

Fully informed by Preston's elaborate communication on the gravity of the situation, Dunmore acted energetically, though tardily, to prevent the execution of Henderson's designs. On March 21st Dunmore sent flying through the back country a proclamation, demanding the immediate relinquishment of the territory by "one Richard Henderson and other disorderly persons, his associates," and "in case of refusal, and of violently detaining such possession, that he or they be immediately fined and

imprisoned. This proclamation, says a peppery old chronicler, may well rank with the one excepting those arch traitors and rebels, Samuel Adams and John Hancock, from the mercy of the British monarch. In view of Dunmore's confidence in the validity of the Camden-Yorke decision, it is noteworthy that no mention of the royal proclamation of 1763 occurs in his broadside; and that he bases his objection to the Transylvania purchase upon the king's instructions that all vacant lands "within this colony" be laid off in tracts, from one hundred to one thousand acres in extent, and sold at public auction. This proclamation which was enclosed, oddly enough, in a letter of official instructions to Preston warning him not to survey any lands "beyond the line run by Colonel Donaldson," proved utterly ineffective. At the same time, Dunmore despatched a pointed letter to Oconostota, Atta-kulla-kulla, Judge's Friend, and other Cherokee chieftains, notifying them that the sale of the great tract of land below the Kentucky was illegal and threatening them with the king's displeasure if they did not repudiate the sale.

News of the plans which Henderson had already matured for establishing an independent colony in the trans-Alleghany wilderness, now ran like wild-fire through Virginia. In a letter to George Washington (April 9, 1775), Preston ruefully says: "Henderson I hear has made the Purchase & got a Conveyance of the great and Valluable Country below the Kentucky from the Cherokees. He and about 300 adventurers are gone out to take Possession, who it is said intends to set up an independent Government & form a Code of Laws for themselves. How this may be I cant say, but I am affraid the steps taken by the Government have been too late. Before the Purchase was made had the Governor interfered it is believed the Indians would not have sold."

Meanwhile Judge Henderson, with strenuous energy, had begun to erect a large stockaded fort according to plans of his own. Captain James Harrod with forty-two men was stationed at the settlement he had made the preceding year, having arrived there before the McAfees started back to Virginia; and there were small groups of settlers at Boiling Spring, six miles southeast of Harrods settlement, and at St. Asaph's, a mile west of the present Stanford. A representative government for Transylvania was

then planned. When the frank and gallant Floyd arrived at the Transylvania Fort on May 3d, he "expressed great satisfaction," says Judge Henderson, "on being informed of the plan we proposed for Legislation & sayd he must most heartily concur in that & every other measure we should adopt for the well Govern'g or good of the Community in Gen'l." In reference to a conversation with Captain James Harrod and Colonel Thomas Slaughter of Virginia, Henderson notes in his diary (May 8th): "Our plan of Legislation, the evils pointed out--the remedies to be applyed &c &c &c were Acceeded to without Hesitation. The plann was plain & Simple- -'twas nothing novel in its essence a thousand years ago it was in use, and found by every year's experience since to be unexceptionable. We were in four distinct settlem'ts. Members or delegates from every place by free choice of Individuals they first having entered into writings solemnly binding themselves to obey and carry into Execution Such Laws as representatives should from time to time make, Concurred with, by A Majority of the Proprietors present in the Country."

In reply to inquiries of the settlers, Judge Henderson gave as his reason for this assembling of a Transylvania Legislature that "all power was derived from the people." Six days before the prophetic arrival of the news of the Battle of Lexington and eight days before the revolutionary committee of Mecklenburg County, North Carolina, promulgated their memorable Resolves establishing laws for independent government, the pioneers assembled on the green beneath the mighty plane-tree at the Transylvania Fort. In his wise and statesmanlike address to this picturesque convention of free Americans (May 23, 1775), an address which Felix Walker described as being "considered equal to any of like kind ever delivered to any deliberate body in that day and time," Judge Henderson used these memorable words:

"You, perhaps, are fixing the palladium, or placing the first corner stone of an edifice, the height and magnificence of whose superstructure . . . can only become great in proportion to the excellence of its foundation . . . . If any doubt remain amongst you with respect to the force or efficiency of whatever laws you now, or hereafter make, be pleased to consider that ALL POWER IS ORIGINALLY IN THE

PEOPLE; MAKE AND THEIR INTEREST, THEREFORE, BY IMPARTIAL AND BENEFICENT LAWS, AND YOU MAY BE SURE OF THEIR INCLINATION TO SEE THEM ENFORCED."

An early writer, in speaking of the full blooded democracy of these "advanced" sentiments, quaintly comments: "If Jeremy Bentham had been in existence of manhood, he would have sent his compliments to the President of Transylvania." This, the first representative body of American freemen which ever convened west of the Alleghanies, is surely the most unique colonial government ever set up on this continent. The proceedings of this backwoods legislature--the democratic leader ship of the principal proprietor; the prudence exhibited in the laws for protecting game, breeding horses, etc.; the tolerance shown in the granting of full religious liberty--all display the acumen and practical wisdom of these pioneer law- givers. As the result of Henderson's tactfulness, the proprietary form of government, thoroughly democratized in tone, was complacently accepted by the backwoods men. From one who, though still under royal rule, vehemently asserted that the source of all political power was the people, and that "laws derive force and efficiency from our mutual consent," Western democracy thus born in the wilderness was "taking its first political lesson." In their answer to Henderson's assertion of freedom from alien authority the pioneers unhesitatingly declared: "That we have an absolute right, as a political body, without giving umbrage to Great Britain, or any of the colonies, to form rules for the government of our little society, cannot be doubted by any sensible mind and being without the jurisdiction of, and not answerable to any of his Majesty's courts, the constituting tribunals of justice shall be a matter of our first contemplation . . . ." In the establishment of a constitution for the new colony, Henderson with paternalistic wisdom induced the people to adopt a legal code based on the laws of England. Out of a sense of self- protection he reserved for the proprietors only one prerogative not granted them by the people, the right of veto. He clearly realized that if this power were given up, the delegates to any convention that might be held after the first would be able to assume the claims and rights of the proprietors.

A land-office was formally opened, deeds were issued, and a store was

established which supplied the colonists with powder, lead, salt, osnaburgs, blankets, and other chief necessities of pioneer existence. Writing to his brother Jonathan from Leestown, the bold young George Rogers Clark, soon to plot the downfall of Transylvania, enthusiastically says (July 6, 1775): "A richer and more Beautifull Cuntry than this I believe has never been seen in America yet. Col. Henderson is hear and Claims all ye Country below Kentucke. If his Claim Should be good, land may be got Reasonable Enough and as good as any in ye World." Those who settled on the south side of Kentucky River acknowledged the validity of the Transylvania purchase; and Clark in his Memoir says: "the Proprietors at first took great pains to Ingratiate themselves in the fav'r of the people."

In regard to the designs of Lord Dunmore, who, as noted above, had illegally entered the Connolly grant on the Ohio and sought to outlaw Henderson, and of Colonel William Byrd 3d, who, after being balked in Patrick Henry's plan to anticipate the Transylvania Company in effecting a purchase from the Cherokees, was supposed to have tried to persuade the Cherokees to repudiate the "Great Treaty," Henderson defiantly says: "Whether Lord Dunmore and Colonel Byrd have interfered with the Indians or not, Richard Henderson is equally ignorant and indifferent. The utmost result of their efforts can only serve to convince them of the futility of their schemes and possibly frighten some few faint-hearted persons, naturally prone to reverence great names and fancy everything must shrink at the magic of a splendid title."

Prompted by Henderson's desire to petition the Continental Congress then in session for recognition as the fourteenth colony, the Transylvania legislature met again on the first Thursday in September and elected Richard Henderson and John Williams, among others, as delegates to the gathering at Philadelphia. Shortly afterward the Proprietors of Transylvania held a meeting at Oxford, North Carolina (September 25, 1775), elected Williams as the agent of the colony, and directed him to proceed to Boonesborough there to reside until April, 1776. James Hogg, of Hillsborough, chosen as Delegate to represent the Colony in the Continental Congress, was despatched to Philadelphia, bearing with him an elaborate memorial prepared by the President, Judge Henderson,

petitioning the Congress "to take the infant Colony of Transylvania into their protection."

Almost immediately upon his arrival in Philadelphia, James Hogg was presented to "the famous Samuel and John Adams." The latter warned Hogg, in view of the efforts then making toward reconciliation between the colonies and the king, that "the taking under our protection a body of people who have acted in defiance of the King's proclamation, will be looked on as a confirmation of that independent spirit with which we are daily reproached." Jefferson said that if his advice were followed, all the use the Virginians should make of their charter would be "to prevent any arbitrary or oppressive government to be established within the boundaries of it"; and that it was his wish "to see a free government established at the back of theirs [Virginia's] properly united with them." He would not consent, however, that Congress should acknowledge the colony of Transylvania, until it had the approbation of the Virginia Convention. The quit-rents imposed by the company were denounced in Congress as a mark of vassalage; and many advised a law against the employment of negroes in the colony. "They even threatened us with their opposition," says Hogg, with precise veracity, "if we do not act upon liberal principles when we have it so much in our power to render ourselves immortal."