Act of the Legislative Assembly, to authorize courts and judges to admit to bail in all cases.--Veto message of the governor.--The bill passed.--Clarke and others bailed under the new law.
THE first act of the Legislative Assembly was a direct attempt to recreate disturbances, by agitating anew the question of difficulty between Governor Geary and Judge Lecompte, growing out of the bailing by the latter, of the murderer of Buffum. This was the passage of a bill, intended as an endorsement of Lecompte's conduct, and disapproval of the governor's, and giving to any district judge authority to bail all persons charged with any and every crime, whether previously considered bailable or not. The following is a copy of this bill:--
"The District Court, or any judge thereof, in vacation, shall have power and authority to admit to bail, any prisoner on charge, or under indictment for any crime or offence, of any character whatever, whether such crime or offence shall have heretofore been bailable or not; such court or judge, on every such application for bail, exercising a sound discretion in the premises."
This bill was returned by the governor unsigned, with his objections, which are sufficiently important and interesting to be given to the reader:
"To the Council and House of Representatives of Kansas Territory.
'The doctrine that the more certain the punishment of crime is made, the greater will be the restraints upon the evil passions of wicked men, has been established in all civilized communities, and approved by the wisdom and experience of every age of the world; and had we no other evidence of its truth, more than sufficient has been furnished in the disturbances and outrages which have so recently occurred in the Territory of Kansas; for no one can be insensible of the fact, that the impunity that has here been given to crime, has been the cause of many of the offences that have been committed. Had but a few of the early agitators, and defiants of law, been brought to punishment, the subsequent events which every good citizen deplores and condemns, would never have occurred.
"It is of the utmost importance to the safety of society that the laws should be rendered as stringent, and their execution as certain as possible; especially as regards the crime of wilful and deliberate murder. Such an offence should be guarded against with the utmost care. No door, whatever, should be opened for the escape of the criminal. Once in the hands of the proper authorities, he should there be secured until the ends of justice are effected. The man whose life has been forfeited to the law, will stop at no means within the range of human possibility to accomplish his escape; for 'what will a man not give in exchange for his life?'
"The act under consideration makes it comparatively easy for the most notorious criminal to escape the punishment his crimes have merited. Any judge of a district court is thereby allowed to set him at liberty on bail. The bill does not even establish the amount of bail required. This, as well as the propriety of bailing, is left to the discretion of the court or of the district judge. Were the bill passed expressly to tamper with and corrupt the judiciary, it could not have been more effectual. All human beings are fallible, and it is a sound principle to throw in their way to err, as few temptations as possible. No judge who has a proper regard for his own reputation, can desire the passage of a law which will render him liable to invidious imputations. If this bill becomes a law, appeals will be made to the district judge to bail every person charged with the crime of murder, and the strongest inducements will be offered to influence his action. Should he refuse to accede to the wishes of the individual accused, or his importunate friends, he will subject himself to the charge of some unjust bias; while on the other hand, should he yield to such importunities he is almost certain of being charged with bribery and corruption; and violence towards himself might ensue in either case. The judge, therefore, would prefer to avoid the additional responsibility which this bill imposes.
"But apart from this, one tendency of the act is to corrupt the judiciary. It will not do to affirm that this is impossible. It has frequently been done to such an extent as to endanger the safety of communities, and even incite to anarchy, with all its fearful consequences. The intention of the laws have been so disregarded, that the people, in self-defence, have repudiated the courts, and in opposition to all legislative enactments, have taken upon themselves the administration of justice. Indeed, in every instance where 'lynch law' has been resorted to, the excuse given by the people has been founded upon the laxity of the courts, or the inefficiency or corruption of the judiciary.
"This want of confidence in the authorities regularly constituted for the execution of justice upon persons charged with heinous crimes, produced those terrible excitements in California, consequent upon the organization of the memorable 'Vigilance Committee.'
"It is to be hoped that a similar condition of things may never transpire in Kansas, though it may well be anticipated, if murder is permitted by the courts to be perpetrated with impunity. The murmurings on this subject are even now loud and almost universal. Some of our best citizens have been stricken down by the hand of the assassin, whose blood has cried in vain upon the legal tribunals for justice. And although many have fallen victims to this atrocious crime, not one of its numerous perpetrators has yet suffered the just penalty of the law. The murderer, his hands still reeking with human gore, walks unmolested in our midst, laughing to scorn the laws which condemn him to an ignominious death.
"Let the law contemplated in this bill be adopted, and this evil, already sufficiently deplorable, will be rendered far worse. The slight restraints now held upon the vicious, will be almost entirely removed. No good citizen can venture in the streets or upon the highways, with a proper feeling of security. The personal safety of all who are well disposed, will be constantly endangered. The odious practice of bearing concealed weapons for self-defence will become general, and the most disastrous results will follow. Every man, conscious of the uncertainty of punishment by the courts, will take the law in his own hands, and the slayer of one individual will fall a victim to the retaliatory vengeance of another. Or should he be brought before a judge or court, and liberated upon bail, an offended people will arise in their majesty, and prevent his escape by the infliction of summary punishment.
"The fact that bail has been given, will have no tendency to prevent these results; for no one can have confidence in the security furnished by such bail as a deliberate murderer can obtain. The person who will step in between him and the execution of justice, must himself be destitute of those feelings and sentiments which will render him worthy the confidence of peace-loving citizens. Or even were it otherwise, and the murderer is substantially bailed by a wealthy relative or friend, the only object in the whole transaction is the criminal's escape; for any amount of property, under such circumstances, will be forfeited to preserve his life. But in the majority of cases the bail is entirely worthless, and its being admitted by a court or judge is equivalent to the murderer's discharge; for no one who is conscious of a conviction that will condemn him to death, will ever present himself for trial. If he has wealth, he can purchase sureties, and if he has not, he may obtain the aid of those who are worthless, or if possessed of the property to which they swear, may dispose of it at pleasure, and thus defraud the territory as well as justice. Bail-bonds, as now given, are of little value even in trivial cases; for when forfeited the amount is seldom collected. To make them of any avail, a lien should immediately be created on the lands of the persons acknowledging them, 'and the execution issued by virtue of a judgment thereon, may rightly command the taking and sale of the lands, of which defendant was seized at the time the recognisance was acknowledged.' Were this rule of law adopted, there would be some value in a bail-bond, and fewer persons would be found willing to execute it. But as the law now rests in this territory, a criminal may be bailed to-day upon what is apparently tangible security, and to-morrow, both himself and sureties dispose of all their property, and unmolested and quietly depart to another region, and thus the matter ends. In the majority of instances therefore, the taking of bail in criminal cases, only tends to defeat the ends of justice, and in every case of absolute premeditated murder, where the proof is clear, or sufficient to convict, is tantamount to an acquittal of the criminal.
"The fact that we have no sufficient prisons for the safe-keeping of the murderer, affords no argument for the passage of the bill. This want can soon be supplied, and it will be better far to commence that work at once, than to adopt a law which must remove the almost only restraint that now exists upon murderous inclinations and passions. There is no necessity for deliberate murderers to be set free, on bail or otherwise, for want of a prison to keep them in lengthy confinement. Frequent sessions of the courts, early trials, and, speedy executions, will dispose of such cases, and give to the people confidence in the judiciary and the laws, and a sense of security of which they have so long been deprived.
"Remove or weaken any one of the safeguards we now possess against criminals and crime, and the peace we enjoy must measurably be shaken. Hence it becomes a subject of the utmost importance, not only to guard against such a result, but to adopt, if possible, laws which will strengthen the general confidence, by making the barriers to the escape of the criminal even more firm and impassable.
"Let it be established and universally known, that 'though hand join in hand, the guilty shall not go unpunished;' that the blood-stained murderer once in the power of the authorities, shall have no possibility or hope of escape; that he who wilfully and deliberately sheds the blood of his fellow-man shall surely suffer the penalty by which his life is forfeit, and our laws will be more respected; fewer crimes will be committed; and the community will repose in far greater security and peace.
The bill, notwithstanding these substantial reasons for its rejection, was passed by an almost unanimous vote of both houses. On the following day, George W. Clarke, charged with the murder of Barber, Dr. J. H. Stringfellow, Captain William Martin, and other pro-slavery men, against whom unserved warrants had been in the hands of the marshal for several months, appeared voluntarily before Judge Cato, offered bail, and were discharged. The sureties in Clarke's case, were the ever-ready Sheriff Jones, and the probate-judge and United States Commissioner John P. Wood. This was the first action under the new bail law. Clarke, from that time, was daily within the bar of the house, instructing the members, until the adjournment, when he proceeded to Washington, and became an adviser of President Buchanan, the Cabinet and Robert J. Walker.