A History of the Daniel Boone National Forest 1770 - 1970

Judge Richard Henderson of Hillsborough, North Carolina, was destined to play a leading role in the early settlement of that part of Kentucky in which the Daniel Boone National Forest lies. He was born in Hanover County, Virginia, April 20, 1735. At the age of 10, his family moved to Granville County where his father was appointed Sheriff and where young Richard, as constable and deputy, performed many of the duties of his father's office.

As a young man, Richard read law under the direction of his uncle, John Williams. After only a year's study, he passed the examination with a high rating and was admitted to the bar where he rose rapidly in his profession. He was appointed to the Superior Court of North Carolina as one of the two Associate Justices by Governor William Tryon of North Carolina on March 1, 1769.

While yet a young attorney, Richard Henderson became aware of the demands of the increasing population for new lands for settlement. His interest was particularly directed to the lands beyond the Cumberland Mountains, probably by the tales of the Long Hunters, Dr. Walker and frontiersmen such as Daniel Boone who had traveled and hunted there repeatedly. Several well-known and reliable writers of early western history have stated that Daniel Boone, Henry Skaggs and Samuel Callaway were employed by Henderson at various times in exploration of the country in which he was interested. Boone, according to historic record, was employed by Henderson as early as 1764 to explore the western wilderness of Virginia and North Carolina. It was the opinion of those best informed that Boone had been a secret agent of Henderson and his associates in the western land scheme for several years.

As Judge Henderson's interest in western lands grew, there developed in his mind a scheme of colonization of a magnitude far beyond that which would be expected of a country lawyer. His plan was not a scheme to extend the western boundaries of North Carolina or Virginia, but a plan to establish a new colony with himself and associates in control, and with the right to establish the government and sell land to the colonists. He had visions of great power and wealth. He was not only a man of visions and plans, but he was a man of action. His first move to implement these plans was taken while he was still a young attorney. In association with Thomas Hart, a member of the State Senate, and his law partner, John Williams, he organized a land company under the title of Richard Henderson & Company.

For a number of years there was little activity by this company other than the accumulation of information of the western country brought back by Daniel Boone and others who were probably employed on an intermittent basis. One reason for this activity on the part of Henderson was the press of business. As an Associate Justice of the Superior Court, his time and energies were fully occupied by the duties of that office.

It was during his term in office that the activities of the Regulators increased to the point of violence. As a result of his sincere efforts to enforce the law and to maintain order, he became involved in some of the incidents created by this movement which had its central headquarters in Hillsborough, the county seat of Orange County, North Carolina. By September, 1770, the situation had developed to the point where the Regulators invaded the court room of Judge Henderson with demands. The crowd suddenly became a mob threatening to beat John Williams and Judge Henderson. This mob did beat several other prominent men, among whom were Thomas Hart and John Luttrell, both of whom were later members of the Transylvania Company. The mob broke into the courthouse and entered comments on the court records that were sneering, ludicrous, and profane. In November, 1770, the Regulators burned a barn and stables belonging to Judge Henderson, together with a quantity of corn and several horses. Two days later they burned a house belonging to him. As the regular March term of court approached, the Regulators defied him to hold court. The records show that the three justices of the Superior Court, Howard, Henderson and Moore, petitioned the Governor's Council to suspend that term of court, which was approved. This unsettled condition continued until the Regulators were soundly defeated at the Battle of Alamance on May 6, 1771, after which the three judges held court at Hillsborough. The trials at this term of court resulted in the execution of six Regulators and imprisonment of many others, and terminated the activities of that organization.

These demanding activities, together with the loss of property at the hands of the Regulators, may well account for the lack of action on the part of Judge Henderson and his partners, then Henderson & Company. The return of Boone from his extensive travels in Kentucky in the early summer of 1771, brought to Henderson detailed information as to the character of the country and the glowing endorsement of Daniel Boone as to the suitability of Kentucky as the site of the proposed colony. This information may well have influenced Judge Henderson that the country described by Boone was the logical location for his colony, but he still had duties and responsibilities as a Justice of the Superior Court of North Carolina. In addition, there was a matter of financing such a venture and, more important, the matter of how to obtain legal title to the lands in question. To this question Judge Henderson had undoubtedly been addressing himself for some time.

Being familiar with the law and legal processes, it is certain that Judge Henderson had searched the laws pertaining to the acquisition of the western lands and their settlement. The results of this search must have been most disturbing, as they revealed legal obstacles to the plan as great as the towering white limestone cliffs of the Cumberlands offered to the western travelers. However, as the western travelers had found a way through these cliffs by means of Cumberland Gap, so Judge Henderson proposed to find a route through or around the legal obstacles to his scheme of colonization.

The portion of Kentucky where Henderson proposed to establish his colony lay within the region reserved for the Indians by the British Government Proclamation of 1763. By the Treaty of Paris in 1763, all of the Indians in Canada and east of the Mississippi River, formerly under the jurisdiction of the French, now came under the rule of the British. Widespread Indian unrest, manifest by Pontiac's conspiracy and similar reactions made some action to reassure the Indians mandatory. In addition, the British Government was motivated by British traders to take action which would discourage the white residents of the colony from leaving the coastal areas. The result was the King's Proclamation of 1763 which established specific restrictions regarding the use and occupation of lands west of the Allegheny River watershed. Some of the more pertinent portions of this Royal Proclamation read:

" . . . that no Governor or Comander in Chief . . . do presume for the present, and until out further Pleasure be known, to grant Warrants for Survey, pass Patents for any Lands beyond the Heads or Sources of any Rivers which fall into the Atlantic Ocean from West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us aforesaid, are reserved to said Indians, or any of them . . . . . And We do, hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any Lands above reserved, without our special leave and Licence for that Purpose first obtained . . . . . We do, with Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any Purchases from the said Indians of any Lands reserved to the said Indians, within these parts of our Colonies where, We have thought proper to allow Settlement; but that, if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie . . . ."

These restrictions, when considered in the light of the colonization plans of Richard Henderson & Company, could only be interpreted as restrictive or prohibitive as far as the Kentucky country was concerned unless the British Government should remove the restrictions or be induced to make some exception in this case. Even then, the venture would be bound by the regulations established by the British Board of Trade. We may be sure that Judge Henderson and his associates considered the situation from every angle.

Judge Henderson, being a lawyer, searched diligently for a loop-hole or "weasel words" in British law which might give him a toehold for his venture, and he eventually found one. This was the famous Camden-Yorke opinion of 1757 which the historian Samuel Wharton describes as briefly as:

"In 1757, the East India Company of London petitioned the King, that in a new charter which it was then soliciting, a clause might be inserted, for enabling them to hold and enjoy, subject to the King's right of sovereighty, all such districts and territories as they had acquired, or might hereafter acquire, (in Asia) from any nation, state or people, by treaty, grant or conquest, upon which these respectable lawyers Camden and Yorke (being then the King of England's Attorney and Solicitor General) officially advised him, 'that in respect to such territories as having been, or shall be acquired by treaty or grant from the Great Mogul, or any of the Indian princes or governments, your Majesty's letters patent are not necessary; the property of the soil vesting in the Company by the Indian grant subject only to your Majesty's right of sovereignty over the settlements, as English settlements, and over the inhabitants, as English subjects, who carry with them your Majesty's laws wherever they form colonies, and receive your Majesty's protection by virtue of your royal charters . . .'"

While this opinion pertained to British India, prominent British promoters of western colonial projects were quick to claim it also applied to Indian lands in America. Two of the most eminent lawyers of London had written opinions, the essence of which was that the Camden-Yorke opinion was applicable to the Indian grants. These promoters utilized this opinion in an attempt to convince British authorities that it was applicable to America as well as Asia. What they overlooked, perhaps intentionally, was that the word "Indian" in the opinion refers to the Indian of Asia, not the American Indian, and the rights declared by the opinion to be vested in the East India Company were inherent in its Royal Charter. It is difficult to understand how these promoters could reason that this opinion could be applied to a land company in America which had no Royal Charter. However, Judge Henderson seized on this opinion as justification and proceeded to have his concept confirmed by an opinion from Lord Mansfield, a prominent English lawyer, which indicated approval of Henderson's plan to purchase land from the Indians. It appears that even lawyers and judges can rationalize actions which they desire to take. Judge Henderson had, to his own satisfaction, found the answer to one of his problems. It had now become an opportunity.