CHAPTER XXIV

CONSTITUTION AND UNION

Kentucky was now in sight of statehood. She had been patient to the extraordinary extent of electing nine conventions; and she had been long-suffering to the extent of almost as many disappointments. A distinct feeling of relief was now apparent. She understood the national government better, a condition which led the national government to understand her problems better. John Brown's influence was now directed toward a forwarding of this mutual accord. He was accused by his enemies of even having changed from being in favor of separation to an opposition to it, because of fear that he might lose his position in Congress if Kentucky became a state.1 Brown had been sounding the President and Senators on Kentucky's chief problem that remained after statehood had been gained, the question of the navigation of the Mississippi, and had come to the conclusion that Kentucky's position should be made perfectly plain. He wrote Harry Innes in October, 1789, to have Kentucky address the President and the Senate and "state what would satisfy the people" on this question.2 Thomas Marshall, who in the early part of 1789, had written Washington of the serious situation in Kentucky, in September of 1790 was able to give an entirely different picture. Kentucky was now contented. Washington replied that he "never doubted that the operations of this government, if not prevented by prejudice or evil designs, would inspire the citizens of America with such confidence in it, as effectually to do away [with] those apprehensions which under the former confederation, our best men entertained of divisions among ourselves, or allurements from other nations. I am therefore happy to find, that such a disposition prevails in your part of the country, as to remove any idea of that evil, which a few years ago, you so much dreaded." 3

Even Wilkinson found such a change, that he began to despair of being able to continue his labors in the interests of Spain. The national government, instead of being weak and of no importance as he had predicted, was now functioning vigorously. In the early part of 1790, he wrote Miro that he had been noting a great change coming about in the people. "Many," he said, "who loudly repudiated all connection with the Union, now remain silent. I attribute this, either to the hope of promotion or the fear of punishment. According to my prognostic [sic] Washington has begun to operate on the chief heads of this district." He then gave a list of Kentuckians who had been appointed to various Federal positions.+ He, himself, gave up active intriguing with foreign countries until times were more propitious, and sought his old position again in the United States army.

1 Thomas Marshall to George Nicholas, April 26, 1789. Innes MSS., 22, No. 69. 2 Dated October 7, 1789. Innes MSS. 19, No. 4.

8 Marshall to Washington, September 11, 1790. Green, Spanish Conspiracy, 277,

278. Washington to Marshall, February 6, 1791. Ibid., 273, 274.

4 Green, Spanish Conspiracy, 288. Letter to Miro, January 26, 1790. Wilkinson's later dealings with Spain are set forth in I. J. Cox, "General Wilkinson and his Later Intrigues with the Spaniards" in American Historical Review, XIX, 794-812.

When Congress met in the fall of 1790, it took up the question of Kentucky in order that it might act within the time limits set by Virginia. In his message to Congress of December 8, Washington spoke of the arrangement between Virginia and Kentucky for the latter's separation and admission into the Union, and declared that the "liberality and harmony with which it has been conducted, will be found to do great justice to both parties; and the sentiments of warm attachment to the Union and its present government, expressed by our fellow citizens of Kentucky, cannot fail to add an affectionate concern for their particular welfare to the great national impressions under which you will decide the case submitted to you." With Washington's support, the question of Kentucky's admission was not long delayed. Sectional jealousies played their part, however. The admission of Vermont was linked with Kentucky. Although the act for admission of the latter passed a few weeks earlier in February than for the former; yet by Kentucky's action in fixing the date of her admission so far ahead [June 1, 1792], Vermont actually came into the Union first.7

Ample time was given in the date set for the call of the constitutional convention for a complete discussion by the people of principles of government and for formulating their desires on what they should want included in the new constitution. Throughout the period from the first convention, there had been more or less discussion, and at times preceding certain of the conventions which they thought would make constitutions, the discussions became very definite as to constitutional principles. Kentucky's experiences from the very first settlement had been in many respects different from that of any other state which had ever made a constitution. Equality and democracy had been lived from the necessities of the situation. It had already in certain of their governmental regulations departed from the Virginia customs in such a way as to point to a greater degree of democracy. While others had been talking about democracy, Kentuckians were willingly or otherwise living it. During the fall of 1791, the Kentucky Gazette carried a series of articles advocating universal suffrage. The author, signing himself "A. B. C." declared that "every cast and denomination of men amongst us, are entitled to a representation in forming a constitution by which they will all be equally bound." All, he declared, helped to clear the wilderness of the savages, suffered dangers and privations together, and intend to live. under the new constitution. Therefore, all should have equal rights.8 In all of the states of the Union at this time, there were varying property and religious qualifications for voting and office-holding. In her dealings with Kentucky, Virginia had continued these usages. In the act of erecting the country of Kentucky out of Fincastle, she gave the franchise to "every white man possessing twenty-five acres of land with house and plantation thereon," and later when the General Assembly incorporated the town of Lexington, a property qualification of £25 was placed on the right to vote.99 But, of course, Kentucky was not a Utopia; there was always a difference of opinion on all principles of government. The Danville Political Club, in discussing the question, "In a free government ought there to be any other qualification required to entitle a right of suffrage than that of freedom?" decided that some other qualification was necessary.10

6 American State Papers, Foreign Relations, I, 13.

7 McMaster, History of the People of the United States, II, 35. For a general account and summary of the conventions and the conspiracies mixed up with them, see Proceedings of the American Historical Association, IV, 352, 357-361; and S. E. M. Hardy, "Early Conspiracies in Kentucky," in The Green Bag, Vol. 12 [1900], 617-620.

8 For example, Kentucky Gazette, October 8, 1791.

9 Robertson, Petitions of the Early Inhabitants of Kentucky, 41, 106.

10 Speed, Political Club, 125.

Perhaps no constitution problem came up for more thorough and prolonged discussion, than the question whether the legislative power should be vested in one or two houses. Those in favor of two houses advanced the usual arguments for such an arrangement. But there was a persistent opposition against this usual division of powers. It was argued that it would be unworkable, as one house would most certainly block the other in whatever legislation might be attempted; that one group of people. out in the state would side with one house for a law and another group would side with the other house against the law, and that as a result the strife of the legislative chamber would be transferred broadcast over the state to the destruction of the public peace and tranquillity; and finally that it would be an additional expense to the state without any corresponding good.11 In the election for delegates, Bourbon County instructed her representatives to vote in the convention for a legislative body of one chamber.12

The question as to the manner in which representation should be apportioned came up, also, for much discussion. The Virginia method of fixing representation by counties, regardless of the population did not appeal to the Kentuckians. It did not represent the principles of equality and democracy. The Danville Political Club discussed this question and came to the conclusion that numbers should be the controlling factor and not counties.13

The people were thoroughly aroused in their desire to impress their views into the new constitution. Many of the better educated worked out constitutions of their own; while others discussed various principles, or listened with intelligent interest. Different methods were used in bringing their thoughts before the people and in giving the people at large a chance to feel that they were having a part in the important work. The Kentucky Gazette was, of course, filled with communications on the subject. Another method is seen in the public meetings that took place on court days, and which were sometimes called for the specific purpose of discussing constitutional principles. In November, 1791, a committee met at Sinking Springs Meeting House, near Paris, for the purpose of formulating the outlines of a constitution.14

The most systematic way of giving the people at large a chance to reflect their will in the convention was designed by Bourbon County. The plan called for the selection of a committee by each militia company, which in turn should choose a committee of two to go to the county seat to meet with like committees for the purpose of nominating candidates for the convention. The ticket selected should be sent back to the original militia committee for ratification. The advocates of this method declared it would largely settle the minds of the people on their candidates and prevent disorganization and disorders at the election.15 A person whose views were not known would thus stand little chance in coming out a few days before the election, inflaming the minds of the people on some subject, and securing a place in the convention, before wiser counsels could checkmate him. To make doubly sure against too great an independence of views of their representatives, the Bourbon County committees gave definite instructions on certain principles that should go into the constitution. They were instructed for the ballot as against oral voting, and also to favor one house for the legislature instead of two. Among other instructions given was the rather unusual demand that no code or laws of England or other nations be adopted; "but that a simple, and concise code of laws be framed, adopted to the weakest capacity; which we

11 Kentucky Gazette, October 22, passim, 1791.

12 Kentucky Gazette, October 15, 1791.

13 Speed, Political Club, 113.

14 Ibid., February 11, 1792.

15 Kentucky Gazette, October 15, 1791.

" 16

humbly conceive, will happily supersede the necessity of attorneys, pleading in our state. The vigorous minds of the Kentucky pioneers were not to be bound by precedents in constitution making; and every man would be his own lawyer. These efforts at instructing delegates met with strong criticism. It was argued that the convention's very purpose and power would be usurped by the people in such proceedings.

The convention met in the early part of April, 1792, and before the end of the month had framed and adopted a constitution. This document was an interesting and remarkable instrument of government. It represented the genius for government of a community of people that had grown up, as an entity, separated hundreds of miles from a sustaining power. It owed less to precedent and more to experience than the constitution of any other American state up to this time. Many new and unusual features went into the framework. It departed from the Eastern practice of requiring no religious test of any kind for office-holding. Representation was based on population and not on counties as was the case in Virginia. Kentucky preceded the rest of the world a quarter of a century, in granting a full and free suffrage regardless of the amount of property owned.

But democracy did not go unbridled through this constitution. Here is seen an unusual admixture of sentiments for popular sovereignty and fears of too much of it. In this new community, scarcely a dozen years out of the stockades, there had already grown up the cry of aristocracy. Agitators had stirred up a class hatred that was louder than it was dangerous. Nevertheless, the more substantial elements were led to guard against a condition where unreasoning popular passion might wreck the social and economic order.17 The governor, senators, and judges were removed from direct election by the people. The Governor was to be elected by an electoral college, on much the same order as provided for in the recent constitution of the United States for the election of the president. The one chamber argument in the convention had not prevailed. The legislature was composed of a Senate and a House of Representatives. The people were given the power of direct election of the representatives; but this was offset in a peculiar method adopted for choosing the senators. The number of senators was fixed at eleven; the representatives could vary from forty to 100, according to the population apportionments. But a definite ratio was fixed between the numbers composing the two bodies. For every additional four representatives, one new senator was added. Thus, according to an indirect method, the senators were apportioned according to population. The senate was elected by the same electoral body which elected the governor, directly dependent on the people, but without any relationship at all with regard to county divisions. Until the number of counties showed equal the number of senators, at least one should be elected from each County; thereafter they were to be elected at large. They were charged by the constitution to elect "men of the most wisdom, experience and virtue above twenty-seven years of age who shall have been resident of the State above two whole years next preceding the election." 18 Senators served a term of four years, one-fourth retiring at the end of each year. The constitution did not provide for the election of a lieutenant-governor; but, instead, the speaker of the senate succeeded to the governorship in

18 Kentucky Gazette, October 15, 1791.

17 The conditions that produced Shay's Rebellion were still remembered by many Americans with an uncomfortable feeling.

18 The Danville Political Club had debated the question of the manner of electing the senate, and had decided on the very method adopted by the convention more than four years later. Speed, Political Club, 142. The text of the Constitution may be found in B. P. Poore, Federal and State Constitutions, and in Thorpe, American Charters, Constitutions, and Organic Laws.

case of the death, resignation, or incapacity of the incumbent.19 The judges were appointed by the governor.

On the whole, the proceedings of the convention were devoid of excitement. The only ruffle was caused by the question of slavery, which thus early had begun to play its checkered role in Kentucky history. From almost the very beginning of the settlement, there had been growing up a sentiment against the introduction of this institution. The opposition was confined largely to the religious denominations and especially to the Baptists. Slavery had, by this time, taken considerable foothold in this new region, embedding itself into the thoughts and economic life of the more substantial elements of the population. When Article Nine, dealing with the subject was read the fight began. This, the earliest expression of the Kentucky pioneer democracy on slavery, follows:

"The Legislature shall have no power to pass laws for the emancipation of slaves without the consent of their owners, or without paying their owners, previous to such emancipation, a full equivalent in money, for the slaves emancipated; they shall have no power to prevent immigrants to this state, from bringing with them such persons as are deemed slaves by the laws of any one of the United States, so long as any person of the same age and description shall pass laws to permit the owners of slaves to emancipate them, saving the rights of customers, and preventing them from becoming a charge to the county in which they reside; they shall have full power to prevent slaves from being brought into this state as merchandise; they shall have full power to prevent any slave being brought into this state from a foreign country, and to prevent those being brought into this state, who have been since the first of January, 1789, or may hereafter be imported into any of the United States from a foreign country. And they shall have full power to pass such laws as may be necessary to oblige the owners of slaves to treat them with humanity, to provide for them necessary clothes and provisions, to abstain from all injuries to them extending to life and limb, and in case of their neglect or refusal to comply with the directions of such laws to have such slave or slaves sold for the benefit of their owner or owners."

Kentucky's position on slavery was, thus, advanced and enlightened. Emancipation, although guarded, was possible by legislative action. The right to prohibit the domestic as well as foreign slave trade was granted without conditions. The humanitarian interest in slaves was also clearly shown in the powers given the legislature to pass laws for their protections.20

In the discussion preceding the adoption of Article Nine, David Rice, an eminent Presbyterian clergyman, made a strong appeal against slavery. When the question was put "to expunge" the article on slavery, all of the six clergymen in the convention voted in the affirmative. Among the others voting affirmatively was Harry Innes. However, the motion was lost twenty-six to sixteen.21

The framers of this constitution did not consider their work as definitely permanent. It was rather a substantial experiment in government. Anticipating the fact that it might not suit the people in all of its parts, the convention provided a special method to take the popular

19 For a general discussion of this constitution, see J. C. Doolan, "The Constitutions and Constitutional Conventions of 1792 and 1799" in Proceedings of the Kentucky State Bar Association, 1817, 134-158. The governor's term of office was four years; he was ineligible to succeed himself.

20 For a short account of the part slavery played in the convention, see, Brown, Political Beginnings of Kentucky, 222-230.

21 MSS. Minutes in Durrett MS. Collection, p. 23. For further information on the constitution, see Proceedings of the American Historical Association, V, 361; and Reports of American Historical Association Reports, 1905, I, 67.