VOICES, THE KANSAS COLLECTION ONLINE MAGAZINE



The Law



     A SURPRISING number of Kansas Collection works deal with legal matters. But then, the law is a focal point in history for Kansas. From the early days, when justice was rough and simple -- courts not being common in the territory's beginnings, and jails even less so -- to the troubled times of "Bleeding Kansas" when law was largely in the eye of the beholder (and with the one holding the gun or numerical advantage), and through time since, as vigilantes took the law into their hands, prisons became a source of controversy, and landmark Supreme Court decisions changed the course of a nation, many of the turning points in Kansas history have had at their heart the law, and its enforcement.

     In the struggles before statehood, when free-state and pro-slavery forces literally battled each other for control of Kansas, the law itself was in question. The proponents of slavery established themselves in appointed and elected positions, with the support of the President of the United States, the Cabinet, and Congress. The growing numbers of free-state settlers, however, felt this position of power had been obtained through illegal means -- fraudulent elections, terrorism, and brute force -- and felt that the government did not fairly represent the majority of Kansas residents. Interestingly enough, the free-state forces responded by in effect seceding, and setting up their own Territorial government.

     The violence of these times, as well as the political chicanery and outright fraud, is well documented in two Kansas Collection books, Kansas: Its Interior and Exterior Life by Sara Robinson and Geary and Kansas by Dr. John Gihon. Both writers describe murder, graft and political imprisonment in sometimes harrowing terms.

     Mrs. Robinson, the wife of Territorial Governor Charles Robinson who was a prisoner for several weeks of the Army of the United States, cried out in fury and despair in 1856,

scales"We have fallen upon the evil times, in our country's history, when it is treason to think, to speak a word against the evil of slavery, or in favor of free labor. In Kansas, prisons or instant death by barbarians are the reward; and in the Senate, wielders of bludgeons are honored by the state which has sent ruffians to desolate Kansas. But in this reign of misrule the President and his advisers have failed to note the true effect of such oppression. The fires of liberty have been rekindled in the hearts of our people, and burn in yet brighter flame under midnight skies illumined by their own burning dwellings. The sight of lawless, ruthless invaders, acting under the United States government, has filled them with that 'deep, dark, sullen, teeth-clenched silence, bespeaking their hatred of tyranny, which armed a William Tell and Charlotte Corday.' The best, the boldest utterance of man's spirit for freedom will not be withheld. The administration, with the most insane malignity, has prepared the way for a civil war, and the extermination of freemen in Kansas. With untiring malice, it has endeavored to effect this by the aid of a corrupt judiciary, packed juries, and reckless officials. In violation of the Constitution of the United States, no regard was paid to the sacred rights of freemen in their persons and property. Against the known sentiment and conviction of half the nation these deeds of infamy have been plotted, and have been diligently carried on. That a people are down-trodden is not evidence that they are subdued. The crushed energies are gathering strength; and, like a strong man resting from the heats and toils of the day, the people of Kansas will arise to do battle for liberty; and, when their mighty shouts for freedom shall ascend over her hills and prairies, slavery will shrink back abashed."

     A year later, Dr. Gihon wrote,

scales"It would be impossible, in the limits allotted to this work, and to carry out its intentions, to give more than a mere passing notice of the most important events that occurred prior to Governor Geary's arrival in the territory. Party spirit increased daily in violence, new accessions were constantly being made to each of the contending factions, and hordes of desperadoes rushed into the country to take advantage of its disturbed condition, simply to plunder and destroy, regardless of the consequences, or of who might be the sufferers. Brutal and shocking crimes were of daily occurrence, and a state of affairs existed too disgusting and deplorable for language properly to describe."

     It took some time -- and statehood, and a national Civil War -- to put an end to these troubles in Kansas. But the confrontations of law and lawless continued in other forms. In the later part of the nineteenth century, the development of cattle towns -- and the unrestrained spirits of the cowboys -- called for men like the legendary lawman "Bear River" Smith, described by Dick Taylor in "Tom Smith of Abilene":

scales"Tom Smith immediately enforced a city ordinance prohibiting anyone from carrying guns in Abilene. His first and second challenges to the law came from the insolent 'Big Hank' Hawkins and from the terrible and burly 'Wyoming Frank.' Neither the superior size of his antagonists nor their pistols intimidated Smith. Individually, Tom Smith quickly overpowered, disarmed, and then banished Hank and Frank from the town without having to use any weapon other than his bare hands."

     The profession of lawman does not appear to have ever been easy. Years later, Ulysses S Grant Sanders related the story of one of his assignments as a deputy sheriff:

scales"I had some exciting adventures while I was a deputy sheriff in Hodgeman County, Kansas. One of the most dangerous ones was the time the sheriff sent me after an insane man named Frank Bursinger. One day late in the fall great clouds of smoke could be seen rising to the skies away in the east from Jetmore, the county seat. It was a great prairie fire and apparently at least 25 miles away and of great extent. Immense columns of black smoke filled the air and we all knew that a big prairie fire was sweeping the country. About the middle of the afternoon a couple of men rode in from the east and immediately went to the County Judges' office. In an hour or so I was called in to the Sheriffs office and was told that an insane man named Frank Bursinger - a Frenchman by birth - was on a rampage and had set fire to the prairie, and burned hay stacks and shot at people and killed some stock and the country was thoroughly terrorized. I had noticed a couple of other deputies enter the court house and leave hastily. The Sheriff said he was very ill and could not go and that I was the only available deputy to send. I sensed the whole situation. It was an ugly job."

     Many of these offenders, if they survived apprehension, would wind up in local or county jails -- often little more than dark, dirty store-houses for human beings. But a reform movement, based on rehabilitating the law-breaker and abandoning corporal punishment such as whipping, led to the development of the penitentiary system. The goal was to provide an environment which would restore the criminal to health, but the results were sadly different, as John Reynolds reports in his 1890 book, Twin Hells:

scales"The following pages treat of hell -- A Kansas hell and a Missouri hell. Those who desire to peruse works that tell about Heaven only, are urged to drop this book and run. I was an inmate of the Kansas penitentiary for sixteen months, and make mention of what came under my own observation in connection with what I experienced. While an inmate of this prison I occupied cells at various times with convicts who had served terms in the Missouri prison. From these persons I gathered much useful material for my book. After my release I visited the Missouri penitentiary, and verified the statements of those criminals, and gathered additional material from the prison records and the officials. I have written chiefly for the youth of the country, but all ages will be deeply interested in the following pages. A large majority of the convicts are young men from sixteen to twenty-five years of age. They had no idea of the terrible sufferings of a convict life, or they surely would have resisted temptation and kept out of crime. The following pages will impart to the reader some idea of what he may expect to endure in case he becomes entangled in the meshes of the law, and is compelled to do service for the State without any remuneration. Every penitentiary is a veritable hell. Deprive a person of his liberty, punish and maltreat him, and you fill his life with misery akin to those who wander in the darkness of 'eternal night.' I think, when the reader has perused the following pages, he will agree with me, that the book has the proper title."

     The situation had not changed by 1908, when an investigation of the Kansas Penitentiary described by John Reynolds revealed ghastly practices, including torture and medical alterations. This was perhaps in part because even those closest to the prisons remained blissfully unaware of the conditions inside. Just five years later, Mildred Botkin, daughter of Jeremiah Botkin, the Kansas Penitentiary warden, wrote to a friend,

scales"It is a very pretty place. This part of the country is prettier than that farther west. It is more broken and has more trees. We have a beautiful view to the west and north. The prison looks like an old castle, with the ivy growing over its walls of brown stone, and with its towers and fountain and beautiful large lawn. One man gives all his time to the flowers in the greenhouse and on the lawn, with some assistance from another man or two. There are gold-fish in the fountain, and we are going to plant some water-lily seeds soon, for next summer. We should all like to see you and the children, and want you to visit us whenever you feel that you can."

     The vigilante movement was another attempt to adjust the criminal justice system. Some strongly supported vigilante actions as the most effective way to right the wrongs of this system; others condemned it because the vigilantes took on themselves the job of judge, jury and (quite literally) hangman. The Death of Jesse Turner explores, through accounts written at the time, the trial of the man accused of murdering Jesse Turner and the fateful results of the vigilante justice in that case, which was said to have involved the bribing of a juror:

scalesReport from the Osborne Journal, May 1889: "We are not an advocate of mob law, but it seems to us that while they were about it, it would have been entirely consistent and eminently beneficent to have strung up the man who received and who gave the bribe, and every person connected with the infamous proceeding. Lynch law is bad enough at the best, but this much can be said in behalf of the law abiding disposition of the people of Lincoln: They invoked the power of the law and found it prostrate and impotent to protect their most sacred interests before taking justice in their own hands."
scalesReports from the Lincoln Republican,1888 and 1889: "Outrages have been committed against the people of this state frequently, but no greater one was ever perpetrated than that which gave to the mob the right to protect the state against this travesty on justice."

     Some Kansas laws have served as a precedent for national laws, most notably the laws against the consumption of liquor. Never mind that Prohibition proved largely unworkable, and was frequently (although discreetly) ignored in Kansas itself, the Prohibition laws persisted in the state for decades after the rest of the nation had given up on it, as Mike Jacobs recalls in "Bootleggers of Jewell County":

scalesMy maternal grandfather, Roy Keeler, was twice sheriff of Jewell Co., serving two terms--1944-46 and 1946-48. As Jewell Co. is in the northern tier of counties along the Nebraska state line, a regular duty was attempting to stem the flow of bootleg liquor from Nebraska down KS-14 toward Beloit and points south. This was somewhat of a trial to Grandfather, since he enjoyed an occasional drink and didn't think much of the Kansas blue laws then in force.
     One of his adventures with a bootlegger about 1944-45 involved my mother, who was his deputy at the time. Mother and Dad had married in 1942, before he spent 3 1/2 years wearing a uniform for Uncle Sam in North Africa, Italy, France, and Germany. She and a cousin went to California to work in an aircraft factory after Dad went overseas, but she returned to Jewell Co. in 1944 after one of her younger brothers was killed in the China-Burma-India Theater. Grandfather got permission from the county comissioners to deputize Mother because there were so few able-bodied men left in the county who could drive (if you understand that Mother is about 4'11" and weighs about 105 pounds, you'll appreciate how serious the situation was). Also, she could live at the jail and help Grandmother cook for the occasional inmate.
     Anyway, they got a tip that a well-known bootlegger would be making a run down KS-14 on a certain evening and went out to intercept him. When the bootlegger made his appearance, Mother and Grandfather started their pursuit, Mother driving and Grandfather firing a few shots (in the air, of course, since he didn't want to really harm anyone over bootleg whiskey). The bootlegger and his accomplice began pitching bottles out of their vehicle into the ditches along side the road and eventually succeeded in eluding Mother and Grandfather. And that was the end of the story, as far as Mother knew, for almost 50 years....

     Other Kansas laws, which were intended to answer to a specific problem, might seem strange from a more modern perspective. In 1936, Progress in Kansas reported, tongue in cheek, on some of the oddest of these Kansas laws, such as a prohibition against snake-eating in public (apparently to discourage carnival shows that featured that sort of thing). But the magazine received this stiff rebuke:

scales"I do not see why our anti-snake eating law should produce merriment, although your article is the second I noticed on the subject. A Literary Digest article some months ago referred to it as an object of queerness. To my own mind a public performance of the kind referred to is an act of indecency and should be prohibited.
     "I am by no means a prude. Neither do I favor nudist exhibitions, but as between a nudist display, which is generally punishable as an act of indecent exhibition, and a snake eating exhibition, I think the snake eater the more entitled to punishment.
     "The type of carnival show mentioned was still in vogue 10 years ago. At that time I was county attorney, and sent the sheriff down to watch an exhibition of the nature in question with instructions to arrest forthwith. The showman got word of our intentions, however, and called the matter off, reporting, as I understood it, that the county attorney had objected to it on the ground that it was cruelty to dumb animals. The fact was I was not worried about the feelings of the snakes involved, but did consider the exhibition inherently indecent and properly subject to legislative restriction."

     It seems the law in Kansas was often a matter of perception; and perhaps that's why it has played such a pivotal role in the state's history.



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