Geary and Kansas by John H. Gihon, M.D.



Improved condition of things.--Attempt to resurrect the courts and incite the judges to the performance of their duty.--Judges Burrell, Cato and Lecompte.--The examination and trial of free-state prisoners.--Directions to Judge Cato.--Letters to the Supreme Judges.--Replies of Judges Cato and Lecompte.--Great criminals permitted to run at liberty.-- Discharge of free-state men on bail.--Judge Lecompte's defence.

    THE dismissal of the Missouri invaders, the arrest of Harvey's party, and the departure of Col. Lane (which took place about this time) from the territory, were followed with the most beneficial effects. The prompt, bold, rapid, and decisive movements of the governor struck the numerous predatory bands with terror, and they either dispersed, or fled the country; and a happier condition of things began to be apparent on every hand.

    The next important measure for the governor, was to resurrect, if possible, the courts, and infuse new life and spirit and energy into the judiciary, who had not only been entirely neglectful of their duties, but were actually responsible for a great portion of the evils that had so long existed. The President cannot be reprehended for not appointing men of superior legal attainments, or more than ordinary talent, to these offices; for the inducements to accept them were insufficient for men of that description. Hence, he was in a measure compelled to make his selections from other material. But still he could have obtained men of mediocre ability, who possessed at least a small amount of integrity and legal knowledge, and some disposition to hold the scales of justice with an even hand. He certainly could not have chosen worse than he did for the necessities of the times and territory, had he canvassed the entire country with that sole determination.

    Judge Burrell was in the territory about ten days of the two years he held his appointment, the remainder of his time being passed at his residence in Greensburg, Pa., where he recently died.

    When Governor Geary visited the camp of Reid, as already related, he found his honor, Judge Cato, performing the duties of a soldier in that ruffian army, and brought him thence to Lecompton, where, a short time afterwards, being in a tent of the militia, who had got possession of the arms of the free-state prisoners, and were making selections to appropriate to their own use, the judge was shot in the ankle by the accidental discharge of a revolver in the hands of a drunken fellow, named Hull. This disabled him for a considerable length of time; but, after his recovery, he became the constant companion of the most worthless characters in Lecompton, was the daily associate of George W. Clarke and L. A. Maclean, and the room-mate, mess-mate, and bed-fellow of Jones and Bennett of the Lecompton Union, the honor of writing and supervising the scurrilous and lying productions of which false and abusive sheet he was shrewdly, and perhaps not unjustly, accused of sharing with Surveyor Calhoun and the other worthies named. His knowledge of law was extremely meagre, and his sense of justice by no means delicate or refined.

    Chief Justice Lecompte was a third or fourth-rate lawyer, from Maryland; and though notoriously indolent and sluggish, has, during his two years' residence in Kansas, accumulated in valuable property a fortune of considerable magnitude. In most of the towns laid out by pro-slavery men he owns a goodly share of choice lots, presented to him, doubtless, more in regard to his virtues and talents, than for any favors he had bestowed, or was expected to bestow, in the discharge of his judicial functions. The judge owns a handsome place near Leavenworth City, to which he is so devotedly attached, that he finds it far more convenient to discharge prisoners on strawbail, than travel twenty or more miles to hold courts and go through the troublesome forms of trial. He can always find time to strike a profitable bargain, make a good land speculation, or engage in any operation that will put money in his purse; but the duties of a judge are too insignificant to receive any special amount of attention; hence he troubles himself but little with the matter of holding courts. An anecdote, somewhat characteristic, is almost universally told, and very generally believed, of him in Kansas. He adjourned the spring term of his court, it is said, to plant potatoes; the summer term to hoe his potatoes; the fall term to dig his potatoes; and the winter term because he had to be at home to sell his potatoes. This, however, is probably somewhat of an exaggeration.

    When the governor returned from the Missouri camp, on the 15th, bringing Judge Cato with him, he found Lecompte at the capital, in compliance with a request forwarded to him at Leavenworth to that effect. On the 16th he had an interview with these two officials, in which he endeavored to impress them with the importance to the territory and the country, of proper judicial proceedings--of opening and holding courts; not only that prisoners could be justly disposed of, but that processes could be issued and criminals arrested. This, they were assured, must be done, or military law proclaimed and adopted. They both seemingly concurred in his views, and agreed to his expressed desires.

    At this time hundreds of persons were constantly pouring into the city, distracting the attention of the governor with pitiful complaints of atrocious outrages that were being committed upon their persons and property. It was the province of the judges to hear these complaints and endeavor to redress the wrongs the people were suffering, adopt and prosecute measures for the arrest and punishment of transgressors, and prevent a continuance of the crimes which were distracting the territory.

    On the 17th the governor accompanied a detachment of troops to arrest a party of alleged criminals at Topeka; and upon his return, on the following day, learned, to his astonishment, that Lecompte had already left for his home in Leavenworth; and that, instead of making arrangements for the immediate examination of the great number of prisoners collected at Lecompton, he had appointed a court for that purpose, to be held three weeks subsequently, at Leavenworth City, forty miles distant, and left directions to have the prisoners conveyed there for trial. Had he adopted this procedure for the express purpose of defeating the ends of justice, and of stultifying all the exertions of the executive for the public welfare, he could not more effectually have accomplished that object. It would have been possible, though extremely difficult, and unnecessarily expensive, to carry one hundred and twenty or more prisoners, then in custody, fifty miles to accommodate Lecompte; but it would have been altogether impossible to give those prisoners a proper hearing and just trial at a place so far distant from where their offences were alleged to have been committed. The witnesses could not have been brought together at such a distance, in times when no unprotected traveller could pass the roads in safety, even were there in the way no other obstacles. This, Lecompte knew; and the whole arrangement afforded but another evidence, in addition to the numbers he had already given, of imbecility and worthlessness during the entire period he had been in office.

    Incensed at this conduct, and determined that the prisoners should have an early hearing in Lecompton, or be set at liberty, the governor addressed the following note to associate-justice Cato:--

              "Executive Department, K. T.,
                    "Lecompton, Sept. 20, l856.
    "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 sufficient 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 already been detained as prisoners six days without even a preliminary hearing. If at the time appointed and legally notified, no prosecutor appears, the alleged criminals should be discharged and permitted to repair to their homes and lawful pursuits.
                  "Truly yours,
                      "JNO. W. GEARY,
                    "Governor of Kansas Territory."

    In accordance with this demand, Judge Cato appointed a court and commenced an examination of the prisoners, during the prosecution of which he met with the accident mentioned, and the proceedings were postponed. The hearing and trials, however, were finally had, the result of which has been related in another place.

    Resolved, if possible, to awaken the judiciary to a sense of duty and obligation, or at least to obtain from them an account of their past stewardship, the governor addressed a letter of inquiry to each of the supreme judges, of which the following is a copy:--

                  "Executive Department, K. T.,
                      "September 23, 1856.
       "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, and how frequently have you held courts in each county or in your 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 offences?
    "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 obedt. servt.,
                    "JNO. W. GEARY,
                  "Governor of Kansas Territory."

    Similar communications were addressed to all the territorial officers, the replies to which are not of sufficient interest to receive a place in these pages. They all amount to precisely the same thing, to wit: that not one of the officials understood his duty, or had performed it. The offices appear to have been held, not so much for any good that could be accomplished, as for their honor and emoluments.

    From Judge Cato's reply, dated October 29th, it seemed that he had been in the territory about a year. He was appointed to the second judicial district, composed of eight counties. He says: "I held court in each of said counties, except Linn, 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 that he had ever tried he speaks of thus: An "adjourned term of the court for Bourbon county was held to dispose of cases on the criminal docket, and the week was occupied in the trial of one case for murder and two for assaults with intent to kill. The case for murder resulted in an acquittal; one of those for assault with intent to kill, resulted in acquittal, and the other in a mistrial. These are the only trials of criminal cases held in my district."

    The answer of Chief Justice Lecompte is very wordy and lengthy, and, with accompanying documents, consisting of a defence of himself published in the newspapers, and an address to the members of the bar, would comprise a good-sized volume, all of which amounts to the simple fact, that, although he arrived in the territory in November, 1854, he had transacted no judicial business worthy of any note. He was assigned the first judicial district, comprising the counties of Doniphan, Atchison, Leavenworth, Jefferson, Calhoun and Douglas. In each of these counties one term of court, of a week's duration, was required by statute to be held during the year. "All these were holden," he says, "except that for Doniphan [in 1855], which I was not able to reach for failure of the boats;" and "except the last term for Jefferson county and for Calhoun. These I did not hold because the recent commotions had just then arisen. It was considered utterly useless to hold court at either Osawkee, the county seat of Jefferson, or Calhoun, the county seat of Calhoun, as neither juries, nor witnesses, nor suitors could be in attendance."

    "In almost all the criminal cases," he says, "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 is that few trials arose.   *  *  *   The only convictions I remember are, 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."

    Thus it appears that, although crimes of the blackest dye were daily and hourly being committed, and many of the criminals were arrested and indicted, the only convictions that could be obtained by the district courts, with three supreme judges, and a United States district attorney, in the space of two years, was one for stealing and another for killing a horse; three or four for assuming office; and some eight or ten for selling liquor without license.

    What became of the incendiaries, the robbers, the ravishers and assassins? These were permitted to run at large, to burn houses and crops; plunder stores and dwellings; violate and brand women; steal horses and cattle; and murder defenceless men in their own homes or on the public highways, with impunity! Or if they were arrested, they were immediately set at liberty again, upon worthless bail, by faithless judges, or discharged because of a nolle prosequi entered by the United States District Attorney, or acquitted by a verdict easily obtained from a packed jury of criminals like themselves. Supreme judges and district attorneys had plenty of leisure and admirable opportunities to secure comfortable building lots and eligible claims, and to grow rapidly rich upon salaries insufficient to meet their daily wants; whilst the worst felons ran at large, laughing to scorn the laws, and the holding of courts were nothing better than shameless farces, in which all interested found abundant sources of amusement.

    The judge's account of the dismissal upon bail of the prisoners indicted for high treason, is sufficiently interesting to present to the reader. He says--

    "It occurs to me as proper to add something in relation to the last term of court in Douglas county. This occurred soon after the late serious disturbances in the territory, the most serious part of which existed, as always, in this county. It seemed perfectly certain to me before I left home, that there was no probability of being able to dispose of any business. I deemed it my duty, nevertheless, in view of the peculiar importance of those cases pending under indictments for treason, to attend, the more particularly as the persons so indicted were held in confinement.

    "As I went I met large numbers of persons coming from Lecompton towards Leavenworth, and when I reached Lecompton, I found it almost deserted. No full jury, either grand or petit, was in attendance; indeed not enough of both to constitute one. The country, it was well understood, was equally abandoned by all those law and order men from which a jury could be selected. Under these circumstances it was perfectly clear that no business could be done.

    "The cases of Robinson and others, indicted for treason, were called. They tendered themselves ready for trial. The government was not ready; nor was there any officer to represent the government upon the 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 acquittal, almost to a farce, and on the other hand, a continuance. The latter ultimatim 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 United States Attorney, instead of being at Lecompton to try these cases, was in the border-ruffian army, marching towards Lawrence to massacre its inhabitants; and the "law and order" men, who alone were fit, according to Judge Lecompte, to sit upon a jury, were flying in terror from Lecompton, because of the reported approach of Lane. And on the afternoon of the same day upon which the alleged traitors were so generally set at liberty on bail, the guns of Lane were pointing over the town, to discharge the prisoners, had they not already been dismissed, without the legal form of a bail-bond. How far this fact influenced the action of the judge, he has not thought proper to state. One thing is certain; these men had already been held in custody for months without a trial; and it is quite probable that the government would never have been ready for trial, if its Kansas ministers could have continued the prisoners in confinement with any degree of safety to themselves. Had the accused been pro-slavery men, there would have been no lack of readiness on the part of the government to try the cause, nor any difficulty on that of the court to secure an acquittal.

    An extract from that portion of the letter of Chief-Justice Lecompte, in which he attempts to repel the charges of official defection, will afford the reader some amusement even should it fail to convince him of the entire purity of the judge's ermine:--

    "As to the charge of 'party bias,' he says, if it means simply the fact of such bias, I regard it as ridiculous; because I suppose every man in this country, with few exceptions indeed, entitled to respect, either for his abilities, his intelligence, or his virtue, has a 'party bias.' I am proud of mine. It has from my first manhood to this day, placed me in the ranks of the democratic party. It has taught me to regard that party as the one, par excellence, to which the destinies of this country are particularly intrusted for preservation.

    "If it be intended to reach beyond that general application, and to charge a pro-slavery bias, I am proud, too, of this. I am the steady friend of southern rights under the Constitution of the United States. I have been reared where slavery was recognised by the constitution of my state. I love the institution as entwining itself around all my early and late associations; because I have seen as much of the nobility of the human heart in the relation of master and servant, and on the part of the one as well as of the other, as I have seen elsewhere. I have with me now an old woman who left all to come with me, when it was purely at her discretion. Another who did the same have I lost and buried with care and decency at Fort Leavenworth. An old man has lately come to me under the care of a youthful nephew, within a few days, all the way from Maryland, and passing through every intervening free state, with a perfect knowledge of the fact, and making his own way through various interferences by his own ingenuity.

    "If it mean more than the fact, and to intimate that this 'party bias' has affected the integrity of my official action, in any solitary case, I have but to say that it is false--basely false.

    "In relation to the other of 'criminal complicity with a state of affairs which terminated in a contempt of all authority,' I will content myself with saying that it, too, is false--basely false, if made in relation to me, and to defy the slanderer to the proof of a solitary act to justify the deepest villain in such an assertion."

    Who, after that stout denial, will dare to question the integrity or impartiality of Chief Justice Lecompte? Who can any longer doubt that to the abolitionists he has always meted out the same mercy and justice that he has bestowed upon his opponents? Who will pretend to affirm that Hays, the murderer of Buffum, would not have been as readily discharged from custody even had he been a free-state man or an abolitionist? The judge really seems to think himself innocent of the charge of "party bias;" yet the loved institution of slavery, is entwined around all his affections, and he could not hold his court because "the law and order men" from which only he could select a jury, had fled from Lecompton.


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