KANSAS COLLECTION BOOKS

William G. Cutler's History of the State of Kansas


TERRITORIAL HISTORY, Part 45

[TOC] [part 46] [part 44] [Cutler's History]

THE JUDICIARY.

The inefficiency of the courts, and the lax and apparently partial execution of the laws by the civil authorities, together with the contempt in which the officials were held by a portion of the inhabitants, had rendered the laws of Kansas for the prevention or punishment of crime, a dead letter, and their attempted execution a mere travesty. While this condition of affairs continued, Kansas still remained the chosen field of operations of many lawless desperadoes who, unrestrained by fear of punishment, could, with comparative safety, continue a life of brigandage and crime, after the general disorders which had first drawn them to the Territory had ceased to exist.

Gov. Geary was not unmindful of the importance of a prompt and impartial administration of justice through the established courts, and knew that except this could be effected, all others efforts to bring about a permanent peace would prove unavailing. The open disorders being quelled, and the dangers of armed conflict averted, he at once set about what proved to be the more difficult task of bringing the courts into their legitimate position as conservators of order and peace, and as dispensers of equal justice to all the inhabitants of the Territory.

The United States District Judges were: Chief Justice, Samuel D. Lecompte; Associate Justices, Sterling G. Cato and J. M. Burrell. Judge Burrell* was absent from the Territory, and the highest judicial duties were vested in the two remaining Judges - Lecompte and his associate, Cato. Geary's first interview with Cato was in the Missouri camp, at Franklin, on the 15th, where he found him doing duty as a soldier, and brought him with him on his return to Lecompton. He held an interview with Lecompte and Cato on the 16th, at which he urged upon them the urgent necessity of their opening and holding court, for the purpose of issuing processes on the many complaints being made, that a prompt and sure arrest of criminals might follow the commission of their crimes. He also dwelt on the importance of giving to every citizen held in custody, what was his right, viz., a just and speedy trial. He tried to impress upon them a full sense of the great responsibilities which rested upon them as the upholders of the law and dispensers of justice, and assured them that unless they took measures immediately for the hearing of the grievances of the people, and the granting of relief through the courts established for that purpose, he should be constrained to proclaim and adopt the more potent remedy of military law, whereby the functions of the courts over which they presided would be suspended. The judges seemingly concurred in his views, and agreed to act in accordance with his expressed wishes. The interview ended with the understanding, or, at least, belief on the part of the Governor, that a court would immediately be held for the examination of the Hickory Point prisoners and others, as well as for the dispatch of other important legal business. On the next day the Governor, with a detachment of troops and accompanied by a Deputy Marshal, went up to Topeka to arrest such of Whipple's men as could be found there, as participants in the armed raid into the Hickory Point neighborhood the previous week. The arrest of quite a number was effected and, with the prisoners, the arresting party returned to Lecompton in the evening. What was his surprise to learn that Lecompte had returned to his home at Leavenworth, having appointed a court to be held at that place, fifty miles distant, three weeks subsequently. The prisoners awaiting examination or trial, now numbered upward of one hundred and twenty. Lecompte had left directions to have them all conveyed to Leavenworth for trial at the time appointed.

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* Judge Burrell received his appointment in December, 1854. He was in ill health, and remained but a few weeks in the Territory, when he returned to his home, Greenburg, Penn., where he died in October, 1856.
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The whole procedure was not only an unprovoked insult to Gov. Geary, but seemed a deliberate plan on the part of Lecompte to prevent a speedy or fair trial of the prisoners and to vindictively increase their punishment and suffering by increasing their term of imprisonment to the longest period possible before a hearing was granted. Furthermore, it was certain that, at that great distance from the place where the alleged offenses had been committed, the road to which no witness favoring the prisoners could travel except at the risk of his life, no fair or just trial was possible. Incensed at the outrage on justice no less than at the open insult thus gratuitously offered him. Gov. Geary addressed to Judge Cato the following note:

EXECUTIVE DEPARTMENT, K. T., Lecompton, Sept. 20, 1856.
JUDGE STERLING G. CATO:

Dear Sir -

You will oblige me by fixing an early day for the examination of the prisoners now held at the encampment of the United States troops in this district, and give proper and official notice of the same. It is essential to the peace of the community and the due execution of the 'law, that this be effected at the earliest possible moment. Some of these men have been already detained as prisoners six days without a preliminary hearing. If, at the time appointed and legally notified, no prosecutor appears, the alleged criminals are permitted to repair to their homes and lawful pursuits.

Truly yours, JOHN W. GEARY, Governor of Kansas Territory.

Judge Cato acceded to the request, and a court was opened for the examination of the prisoners. The examination was interrupted, and prolonged by an accident to the Judge which occurred while the examination was going on. After considerable delay, it resulted in the committal of the most of them, bail being refused, to be held on the charge of murder in the first degree, as had been previously recounted in a different connection.

The Governor was now quite fully convinced that the troubles of the Territory had been greatly increased and complicated by the unfairness, prejudice, or incompetency of the Territorial officers and Judges of the court, and with a view to ascertaining where the culpability rested before attempting a reform, addressed to the various territorial officers a letter of inquiry similar in import to the following:

EXECUTIVE DEPARTMENT, K. T., September 23, 1856.

TO THE HON. SAMUEL D. LECOMPTE, CHIEF JUSTICE OF THE SUPREME COURT OF KANSAS TERRITORY:

Sir - Upon my arrival here I found this Territory in a state of insurrection, business paralyzed, operation of the courts suspended, and the civil administration of the government inoperative and seemingly useless.

Much complaint has been made to me against the Territorial officers, for alleged neglect of duty, party bias, and criminal complicity with a state of affairs which resulted in a contempt of all authority.

I have therefore deemed it proper to address circulars to all Territorial officers, in order that, being informed of the complaints against them, they may have an opportunity to vindicate themselves through my department.

The efficiency of the executive will be much impaired or strengthened by the manner in which his subordinates in office discharge their respective duties.

As it is my sworn duty to see that the laws are faithfully executed, I need offer no apology for requesting categorical answers to the following interrogatories:

1st. When did you assume the discharge of the duties of your judicial office?

2d. What counties compose your judicial district?

3d. How many bills have been presented - how many ignored in your courts, how many indictments have been tried before you, and how many convictions had, and for what offenses?

With a brief statement of other facts and circumstances, showing the manner in which you have discharged your duties, which you may be pleased to communicate.

Very truly your obedient servant,

JOHN W. GEARY, Governor of Kansas Territory.

The answer of Judge Lecompte was extremely long, chiefly made up of excuses and explanations of apparent derelictions of duty, and in refuting various charges, some of which were self-preferred. The categorical answers to the interrogatories of the Governor showed that he had assumed the functions of his office in November, 1854; that he had been assigned to the First Judicial District, comprising the counties of Doniphan, Atchison, Leavenworth, Jefferson, Calhoun (now Jackson), and Douglas; that the statutes prescribed a term of one week in each year, to be held in each of these counties ; and, that, in accordance therewith, such terms had been held by him, with the exception of the term of 1855 in Doniphan County, passed on account of his inability to reach the place appointed by boat ; and the last terms of Jefferson and Calhoun Counties where the existing disorders in his opinion rendered it "utterly useless to hold court at the time appointed." The result of his judicial labors were thus summed up:

In almost all the criminal cases presented anterior to the publication of the statute, nolle prosequies were entered by direction of the District Attorney of the United States for the Territory, upon the ground taken by him, that there was no law in force in the Territory to punish them. The consequence was that few trials arose. * * * The only convictions I remember were: one for horse stealing in Doniphan, and some three or four for assuming office; one for maliciously killing a horse in Atchison County ; one in Jefferson County for selling liquor to Indians; and, perhaps some eight or ten in different counties, for selling liquor without license.

Relating to the release of Robinson and the other treason prisoners on bail, he says:

The cases of Robinson and others, indicted for treason, were called. They tendered themselves ready for trial. A motion was made by a gentleman deputed for that purpose, simply to continue the causes.* I saw no alternative but a trial, which, without readiness on the part of the Government, under the most peculiar circumstances, would have amounted to an acquittance, almost to a farce, and, on the other hand, a continuance. ----
* The United States Attorney was absent with the Missouri army, preparing to march on Lawrence.
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The latter ultimatum was adopted. The question then remained, what was to be done with the prisoners? As they tendered themselves ready for trial, I believed that to continue them in confinement would be oppression. I therefore discharged them on bail.

The reply of Judge Cato to like interrogatories showed that he had held his position on the bench for about one year, and had been appointed to the Second Judicial District, embracing eight counties. He had held court in each of the counties, except Linn, "during last spring and summer, beginning at Franklin on the third Monday of April, and ending at Shawnee on the second Monday of June last." The only criminal cases tried by him were in Bourbon County ; one for murder, and two for assault with intent to kill. The murder case resulted in an acquittal, and the others, one in acquittal, and the other in a mis-trial. Thus, it appeared that, although murders of the most atrocious character had been committed almost daily, and, in many cases the murderers were well-known, and boasted openly of their achievements, there had not been during the whole time since the courts were established, a single conviction, and in only a single case had an alleged murderer been brought to trial. History records but few instances where either through a corrupt, prejudiced, vindictive, or imbecile judicature, the court so utterly failed in the performance of its legitimate functions. The minor officials gave like unsatisfactory though less important reports in answer to the circular addressed them. As a whole, they disclosed to the Governor a rottenness in the whole administration of civil law in the Territory, far exceeding his worse apprehensions or suspicions. His further experience convinced him that the root of the evil sprang more from the perversions of the Judge than from the perverseness of the people. A case in point soon brought the Governor and the Chief Justice to an open rupture.

The warrant for the arrest of Buffum's murderer was, as has been recounted, placed in the hands of the Marshal on the evening of September 15, with authority to call on the United States troops for such aid as might be required. Hearing nothing further concerning it, he, on the 18th,

addressed a note to Marshal Donaldson, inquiring whether the warrant had been executed, and the result of the efforts to arrest the murderer, if any such had been made. He replied, that diligent inquiry on the part of Deputy Marshal Cramer had failed to discover the murderer, and that he had consequently failed to identify or arrest him. Geary became satisfied that, with the warrant in the hands of Cramer, one of the most intense and unscrupulous Pro-slavery men in the Territory, the murderer, if known, would never be apprehended. He accordingly sent secret agents to Atchison County to ferret out the perpetrators of the deed, and publicly offered a reward of $500 for their apprehension. Although unsupported in these efforts by any Territorial officer, he found them at the same time over-zealous in obtaining the arrest of Free State men on every possible pre-text. Old charges were renewed and new ones made, and the Marshals, with possess of United States troops, were constantly hunting them down. Geary was powerless to prevent this mode of petty persecution, which seriously hindered his efforts to establish peace, since it was carried on primarily under the forms of law, the warrants being issued by regularly constituted officers, and the offenses sworn to in due form, whether false or true. Requisitions were made for troops, to assist in the serving of processes, which the Governor granted, in the belief and on the representation of the officers that without such help the legal processes in their warrants could not be served. As soon as he became convinced that the soldiers were required for the protection of the officers, rather than for the arrest of the prisoners, he denied all further aid for the purpose. The murder of Buffum, the failure to arrest the murderer, or any other Pro-slavery man, although many warrants had been issued against them, and the continued harassing and arrest of the Free-State settlers, aroused anew murmurings of discontent, impaired confidence in the sincerity of Geary's professions and promises, and brought grave danger of a fresh outbreak of violence on the part of the exasperated citizens.

Early in November, the murderer of Buffum was discovered to be one Charles Hays, a member of the Kickapoo Rangers, then living in apparent security in Atchison. A new warrant for his arrest was issued, and a few days thereafter he was brought to Lecompton, a prisoner. He was indicted by the grand jury, composed entirely of Pro-slavery men, and committed for trial, on the charge of murder in the first degree. It seemed certain that at length one murderer was to be brought to trial, if not to justice.

November 10, a committee of Free-State men appeared before the Governor to protest against the partiality shown in the conduct of the Government, and the continued severity with which the officials were pursuing and persecuting them. The Governor assured them that he had it in his heart to do equal justice to all, and referred to his earnest and successful efforts to bring Hays, although a Pro-slavery man, to justice. While the interview was still being continued, a person entered the room and announced that Lecompte had, on the bond of Sheriff Jones, a man notoriously worthless, admitted Hays to bail, and that he was then at large. With his only argument thus ruthlessly annihilated by Lecompte, Gov. Geary no longer attempted any other than a personal defense. The committee closed with the ominous declaration that "as the Free-State men can no longer expect even-handed justice, their only hope must be in physical force." In reply, the Governor asserted in the strongest terms, his own conscientious determination to see equal justice disposed to every inhabitant of the Territory, whatever their personal opinions might be. "He was instructed to preserve the peace of the Territory, and to exercise his discretion as to the means to be employed, and was sworn to, and would at all hazards, discharge his duty as he understood it." He pronounced the release of Hays, not only a studied insult to him, but a judicial outrage, without precedent, and "as calculated to endanger the public peace, to destroy the entire influence of the policy he was laboring day and night to inaugurate; and to bring the court and judiciary into contempt." He assured the committee that he should immediately issue an order for Hays re-arrest, and submit the matter to the President, who, he felt assured, "would permit no judicial officer to forget his duty and trifle with the peace of the Territory by making decisions abhorrent to public justice, and grossly steeped in partiality."

The interview resulted in convincing the committee that the Governor was earnestly endeavoring to promote even-handed justice; that he was not in complicity with the gang of conspirators that was goading them to fresh deeds of violence; and that he was being thwarted in his every endeavor by the court, its officers, and others, from whom he had a right to expect assistance and co-operation.

Gov. Geary immediately issued the following warrant:

EXECUTIVE DEPARTMENT, K. T., LECOMPTON, Nov. 10, 1856.

I. B. Donaldson, Esq., Marshal of Kansas Territory:

SirAn indictment for murder in the first degree, having been duly found by the Grand Jury of the Territory against Charles Hays, for the murder of a certain David C. Buffum, in the county of Douglas, in this Territory, and the said Charles Hays having been discharged upon bail, as I consider in violation of law, and greatly to the endangering of the peace of this Territory:

This is therefore to authorize and command you to re-arrest the said Charles Hays, if he be found within the limits of this Territory, and safely to keep him until he is duly discharged by a jury of his country, according to law.

Given under my hand and seal at the city of Lecompton, the day and year above written.

JNO. W. GEARY, Governor of Kansas Territory.

Marshal Donaldson declined to execute the foregoing warrant, stating that after taking time for consideration he would give a written answer. A duplicate warrant was at once placed in the hands of his special aid de-camp, Col. H. T. Titus, who promptly re-arrested the murderer and notified the Governor that he held the prisoner subject to his further order. Donaldson, after due consideration, declined to serve the warrant and tendered his resignation as Marshal of the Territory.

The prisoner remained in the custody of Titus until December 18, at which time, Governor Geary being at Leavenworth, he was again brought before Lecompte on a writ of habeas corpus, and again set at liberty. The Governor stood vindicated in the eyes of all men as to his complicity in this judicial outrage, and chose to no longer continue the vexatious contest with the contumacious (sic) Judge. He sent to the president a full history of the case and urged his removal, on the ground of his known partiality to one faction, which rendered him a serious obstacle in the way of pacifying the Territory or otherwise carrying out his instructions. Mr. C. O. Harrison, of Kentucky, was immediately nominated as successor. It happened, either by accident, or design, that no writ of supersedes was issued, and the Senate consequently withdrew their confirmation of Harrison's appointment. There the matter rested and Geary went on with his work as best he could, with Lecompte and his friends exultantly pitted against him.

[TOC] [part 46] [part 44] [Cutler's History]