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



Discharge of Hays by Judge Lecompte.--Order for his re-arrest.--Conduct of Marshal Donalson.--Col. Titus re-arrests Hays, who is again set at liberty by Lecompte on a writ of habeas corpus.--President Pierce and the United States Senate on the case of Lecompte.--Letter from Secretary Marcy asking explanations.--Governor Geary's reply.--Judge Lecompte's letter of vindication.

    ON the 10th of November several members of the free-state party, all gentlemen of intelligence and respectability, and citizens of the territory, called upon the governor to protest against the abuses they were suffering from the partial manner in which the government was conducted. They complained loudly and emphatically of the fact that while no efforts were made to arrest pro-slavery criminals, or that if arrested, they were immediately discharged on bail, numerous free-state men were being seized almost daily by the officers, thrust into prison, and there detained, all their importunities to give bail being repulsed by Judge Lecompte and other pro-slavery magistrates.

    The governor was vindicating his own policy, and the impartial and independent course of the grand jury as evinced by their recent action at Lecompton. They had found true bills, he said, against a number of prominent pro-slavery men, among whom was Charles Hays for the murder of Buffum. The men indicted, he continued, are pro-slavery men, and have position and influence in the community; and yet their position has not been so exalted as to screen them from the searching scrutiny of an independent grand jury, though summoned under pro-slavery auspices.

    The governor dwelt upon the murder of Buffum, described it as it really occurred, narrated the circumstances of his interview with the dying man, and said that he had left no means untried to secure the murderer, and that it was a cause of great gratulation to him that the grand jury had so promptly done their duty in the matter after the officers had succeeded in making the arrest. Now, concluded the governor, you perceive that a disposition does exist to do equal and exact justice, and that a determination prevails to bring criminals of all parties to punishment.

    He had scarcely completed the last sentence when several persons entered, one of them remarking that Judge Lecompte had admitted Charles Hays, the murderer of Buffum, to bail, and that Sheriff Samuel J. Jones, a man notoriously not worth a dollar, was on his bail-bond.

    The governor was astounded. He could scarcely accredit what he heard. All his arguments were scattered to the winds. He no longer doubted his true position. The cloud was dispersed, and he saw precisely where he stood. He was alone in the territory. He was not only not supported by a single officer sent there by the general government, but every one of them was exerting his influence and power to oppose his efforts to do justice to the people and secure the peace he had effected. He saw himself surrounded by a combination of official traitors, banded together to embarrass all his just operations for the public good. He had devoted much time, expended over two hundred dollars, and offered a reward of five hundred more, to secure the person of one of the foulest murderers that ever disgraced the human form. No sooner had he accomplished this object--at a time when it was of the utmost importance to allay the rising excitement of an aggrieved people, and to satisfy them of his honest intentions to do justice to all men--than the chief-justice steps forward and sets the criminal free. He saw at a glance that he must now assume weighty responsibilities, and act independently and for himself, as the government had surrounded him with men who were resolved upon frustrating the impartial policy he had come to enforce. No other course was left to keep down the smouldering volcano that was about to break forth with fearful violence, or prevent a civil war, the elements for which were gathering. He knew that he must act promptly and decisively, and in such a manner as to convince the people of the territory that he looked with detestation upon the conduct of Lecompte, and was disposed to annul his action. No other policy was left, else in another day a thousand bayonets would have glistened in the sunbeams, and a thousand strong hearts, arouses to vengeance, would have been marching toward Lecompton to set at liberty the free-state prisoners, and chastise, as they merited, those who held them in unjust confinement.

    "You see how it is, governor," said the free-state men; "all our statements are confirmed. Did not Judge Lecompte refuse to entertain a motion to have evidence in the case of the free-state men charged with the Hickory Point murder, to ascertain whether the offence was bailable, as it afterwards turned out to be by the verdict of the jury only finding manslaughter? In these cases the motion to admit to bail was made before before bill found, when the right was unquestionable; but in the case of Buffum, after the grand jury had maturely considered the matter, and found a true bill against Charles Hays for murder in the first degree, this murderer is immediately bailed, and without authority of law or precedent for so glaring an act, is set at large. The free-state men," continued they, "can no longer expect even-handed justice, and their only hope must be in physical force."

    The governor replied that he was conscientious on the subject; 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 boldly pronounced the action of Chief Justice Lecompte in dismissing the murderer of Buffum, after the grand jury had found a bill of indictment against him for murder in the first degree, as a judicial outrage, and under the circumstances, without precedent, as highly discourteous to himself, he having been the means of arresting Hays, and should have been consulted; as greatly calculated to endanger the public peace, and 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 declared that he would treat the decision of Judge Lecompte as a nullity, and proceed upon the indictment for murder to re-arrest Hays as though he had merely escaped, and would submit the matter to the president, feeling assured that he 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. He accordingly issued the following warrant:

              "Executive Department, K. T.,
                    "Lecompton, Nov. 10, 1856.
"I. B. DONALSON, Esq.,
        "Marshal of Kansas Territory.
    "Sir: An 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 first above written.
        {SEAL.}              "JNO. W. GEARY,
                                "Governor of Kansas Territory."

    This warrant was handed to Marshal Israel B. Donalson, who was in the executive office during the foregoing occurrences. He, however, declined to execute it, saying he would take time to consider the matter, and give his answer in writing.

    The marshal retired, and the governor immediately made out a duplicate warrant and placed it in the hands of his special aid-de-camp, Col. H. T. Titus, with orders to take a file of men and execute it without delay, as, while the marshal was considering the matter, Hays would escape. Colonel Titus promptly obeyed the order, and departed on his mission, the result of which is given in the following report:--

                  "Lecompton, Nov. 12, 1856.
            "Governor of Kansas Territory.
    "Sir: In pursuance of your warrant of 10th instant, I proceeded to the residence of Charles Hays and arrested him, brought him to this place, and now hold him subject to your further order.
                    "Your obedient servant,
                          "H. T. TITUS."

    In the meantime Marshal Donalson had considered the matter, and declined to execute the order for the re-arrest of Hays, concluding his answer in writing with following paragraph:--

    "Your determination, as expressed this evening, (if I refused to execute your order), to suspend me or procure my discharge by the president, induces me to say that I have some days since determined to discontinue my present official relations with this territory; and I now desire the favor of you to assure the president of my gratitude for his confidence and kindness, and ask him to relieve me from my present position as soon as may be convenient."

    Hays remained in the custody of Colonel Titus until Governor Geary visited Leavenworth City, on the 17th November, to attend the public sales of the Delaware lands. During his absence Hays was again discharged by Judge Lecompte on a writ of habeas corpus, as shown in the subjoined communication from Colonel Titus:--

                  "Lecompton, Nov. 21, 1856.
            "Governor of Kansas Territory.
    "Sir: I have the honor to state that during your recent absence from this place, a writ of habeas corpus, issued by Chief Justice Lecompte, was served upon me, by which I was commanded to produce the body of Charles Hays before him, with the cause of his detainer .
    "That in obedience to the writ, I caused the body of Hays to be produced before Judge Lecompte, and returned as the cause of his detention the finding by the grand jury of a true bill of indictment against him for murder in the first degree, committed upon the person of one David C. Buffum, together with your warrant, commending the re-arrest of the said Hays and his detention until his discharge by a jury of his country according to law.
    "I have further to state that Judge Lecompte discharged the said Hays from my custody notwithstanding my return, and that he is now at large. I have the honor to remain,
                  "Your obedient servant,
                        "H. T. TITUS."

    The governor did not attempt to interfere with this writ of habeas corpus. His action in the case had satisfied the free-state people that he had no complicity whatever with the partial policy of the other officers, and that he would do them justice to the full extent of his power. He therefore contented himself with forwarding to the president and secretary his executive minutes, containing a history of the circumstances as above related, and showing the necessity for a less partial judiciary in order to preserve the peace of the territory, and enable him to enforce their own instructions.

    President Pierce forthwith nominated Mr. C. O. Harrison, of Kentucky, to the Senate, as successor to Lecompte, without, however, issuing a writ of supersedeas, which was a sufficient reason for the Senate to withhold their confirmation of Mr. Harrison's appointment. Neither the president nor the Senate were disposed to assume a responsibility in the matter; and Judge Lecompte, not being superseded, remained in office, to the enthusiastic delight of the pro-slavery party, and to the still further annoyance of Governor Geary, and the embarrassment of his honest and judicious administration.

    While the question was pending before the Senate, which was nothing more than one of those political farces so often enacted to dazzle the vision of the people, who are not permitted to look behind the scenes, Secretary Marcy forwarded the following dispatch to Governor Geary:--


                "Department of State:
                    "Washington, 4th February, 1857.
"To JOHN W. GEARY, Esq.,
        "Governor of Kansas, Lecompton.
    Sir:--The original letter of which the inclosed is a copy, was brought to the notice of the president, a few days since, by Hon. James A. Pearce, of the United States Senate. The discrepancies between the statements of this letter and those contained in your official communication of the 19th of September, last, are such, that the president directs me to inclose you the copy for explanation.
              "I am, sir, respectfully, your obed't serv't.
                      "W. L. MARCY."

    To this insulting epistle the governor immediately made the following laconic reply:--

                "Executive Department, Kansas Territory,
                    "Lecompton, February 20th 1867.
"Hon. WM. L. MARCY,
        "Secretary Of State.
    "SIR:--Your dispatch of 4th instant, enclosing me a copy of Judge Lecompte's letter in the Hays case, and calling my attention 'to the discrepancies between the statements of that letter, and those contained in your (my) official communication of 19th of September last,' and requesting 'explanation,' was received by last mail.
"In reply, I have simply to state, that 'what I have written, I have written,' and I have nothing further to add, alter, or amend on this subject.
"My executive minutes, faithfully chronicling my official actions, and the policy which dictated them at the time they occurred, and my various dispatches to the government, contain but the simple truth, told without fear, favor, or affection, and I will esteem it a favor to have them all published for the inspection of the country.
                    "Your obed't servant,
                      "JNO. W. GEARY,
                  "Governor of Kansas Territory."

    The letter of Lecompte embraced some twenty or more pages of foolscap, written in his usual wordy and indefinite style. That portion of it which relates directly to the Hays case, fully sustains all that was affirmed in the executive minutes concerning that subject.

    He says: "I take pleasure in furnishing you the facts in the Hays case, which, I see by your letter, as well as by newspaper items, has obtained a notoriety vastly disproportioned to its real consequence.

    "On the last day of the term of my court, held at Lecompton for the first district, application was made by the counsel for Hays for bail. Understanding that he was indicted for murder, I observed that I could not admit to bail, unless testimony was offered tending to acquit him of the charge. I was asked by his counsel whether I would hear such testimony. The term of the court being limited, and that being the last day of its session, I said I would. A witness was called, who stated that he was with the prisoner on the day named in the indictment, and that they were coming in company from Lecompton to Leavenworth.

    "I inquired for and had called the witnesses on the part of the territory. They were not in attendance. The matter being submitted on the evidence, and some observations by his counsel, who claimed to have thus furnished proof of an alibi, I declined to admit him to bail, stating as my reason that I did not consider the day named as an averment material to be proved, and that, while the proof exonerated him from the charge on that day, it was possible, and consistent with the evidence offered, that he was guilty of the crime on another day, before or after, and committed him to the custody of the marshal.

    "In the afternoon, by his counsel, he asked permission to offer other and additional testimony, to have a further bearing upon his application. This I granted. Some two or three (three, I think) other witnesses were sworn, who concurred in saying that they were with Hays in the ranks of the militia, returning from Lawrence to Lecompton, on the day of the murder, and that he was in the ranks during the day, and that they frequently saw him. I again had the witnesses for the government called. They not being forthcoming, I stated that I was not fully satisfied to bail. At this moment the district attorney, prosecuting on behalf of the government, arose and stated that he knew Hays well; that he was a neighbor of his; and that he had full confidence that Mr. Hays could give good bail, and should be forthcoming to answer the charge, if bail were allowed; and that he had no objection to his being admitted to bail.

    "I immediately replied, that being the case, if he can give sufficient security in the sum of ten thousand dollars, I will take it. It was immediately given, and he was discharged.

    "But for subsequent occurrences, I know not that I should have thought of the matter again from that day to this. It attracted no more of my attention than any other case upon which I have acted. I never heard the matter mentioned, as I now recollect, except as I have detailed it.   *   *   *   *

    "To my infinite surprise, I learned from the marshal, who, passing my house, called to see me the next Wednesday, that the governor had ordered him to re-arrest Hays, and that, upon his refusal, Colonel Titus had been ordered to re-arrest him, and had left Lecompton for that purpose.

    "A day or two afterwards, application was made to me by Hays for an habeas corpus. This I issued. Being brought before me on the return day, and the matter being submitted, I discharged him."

    Such is Chief-Justice Lecompte's version of the affair, given in vindication of his conduct--a version which must condemn him in the estimation of every man acquainted with the facts. The most of his statements are true--strictly true--and hence the less excuse for his conduct.

    The history of the case is simply this. The "Kickapoo Rangers," of which company Hays was a member, left Lawrence early in the morning of the murder, reached Lecompton about noon, crossed the river shortly afterwards, and proceeded northward toward Atchison on the same day.

    When near Lecompton, six of this company left the ranks, and one of them murdered Buffum, stole his horses and the horse of Miss Thom, and rejoinded the company; the time occupied in the murder and robbery not exceeding, perhaps, five minutes.

    The testimony upon which Hays was committed, clearly and positively established that he left the ranks; that he was absent long enough to commit the crimes alleged; that he was seen to take Buffum by the shoulder with one hand, and to shoot him with the other, calling him, as the dying man testified, a d---d abolitionist; and that he was in possession of the stolen horses.

    With these facts before him, and with which Judge Lecompte was perfectly familiar, application was made for the discharge of Hays on bail, and witnesses were offered by the district attorney, an associate of the criminal, to prove an alibi. The judge called the witnesses for the prosecution, knowing that they were more than fifty miles distant, and, of course, they did not answer. He then heard the evidence to prove an alibi. This went to show precisely what the prosecution had proved, that Hays was "in the ranks of the militia, returning from Lawrence to Lecompton, on the day of the murder, and that he was in the ranks during the day and that" the witnesses "frequently saw him;" also, that on the afternoon of the same day, Hays was on the north side of the Kansas River, still in the ranks of the militia, marching from "Lecompton to Leavenworth." All this was strictly true, and the witnesses for an alibi might also have added, that, when on the north side of the river, Hays had with him the stolen horses, one of which was subsequently returned to Miss Thom, the owner, by Colonel Clarkson, commander of the "Rangers," upon a requisition from Governor Geary.

    How the chief-justice could discover any evidence in this testimony with which to prove an alibi, was a matter for wonder and amusement even to his friends. It was, however, quite sufficient to satisfy his judicial understanding, and he immediately said that if Hays could give "sufficient security in the sum of ten thousand dollars, he would take it." Where- upon Samuel J. Jones, sheriff of Douglas county, offered himself as sufficient for that amount, (and he would have done the same had it been ten millions) and the chief justice was satisfied, and the murderer discharged.

    The remainder of Judge Lecompte's lengthy letter, sent to Governor Geary for explanation, consists of little else than a wordy denial of the charge of having refused bail to free-state men, or been influenced in any way in the discharge of his judicial functions by party considerations; all of which he maintains with a pertinacity which might induce a reader not thoroughly acquainted with the man, and with his official history, to imagine that the judge was really laboring under the hallucination, that he always had been, was then, and was resolved ever after to be, a most righteous and impartial judge.

    The facts in the case of Hays were misrepresented by the Lecompton Union, and Governor Geary's conduct, as were all his acts, made the subject of an abusive article. To this George W. Brown, who was one of the treason prisoners, replied as follows, in the Herald of Freedom, of which paper he is the editor. Some of the undeniable facts, stated in this article, utterly disprove Judge Lecompte's pretensions to impartiality in the discharge of his official duties:--

    "The Union justifies Lecompte, because the defendant introduced ex parte evidence, and proved an alibi. The judge was offered proof, and in fact we did prove before him, that at the time we were charged with doing certain treasonable things in Kansas, and for more than one month previous, we had been out of the territory, and could not have been guilty of the crime with which we were charged. Moreover we offered to give bonds in the sum of $50,000 for our appearance at the next term of the court to answer the indictment; and yet the judge declared the offence not bailable. Four months after he took bail, however, in the sum of $5,000, basing his action upon the laches of the prosecution.

    "In the indictment against the ninety-eight free-state prisoners he refused bail, as they were indicted for murder. He well knew that there was not a jury, however malevolent, which could be so packed as to bring in a verdict of murder, because of the absence of malice prepense. At best it could only amount to manslaughter, and yet the judge refused them bail.

    "In the case of Buffum, it was a cold-blooded, deliberate murder. There were no extenuating circumstances. The wretches attempted to steal his horses; Mr. Buffum remonstrated, and was shot down like a wild beast. A packed pro- slavery grand jury indicted Hays for murder. Lecompte released him on bail.

    "The governor was knowing to the murder of Buffum. He stood by his bed-side, and heard from the dying man, in extremis, a statement of facts; and with Judge Cato, took his affidavit in due form of law. Hays was proven before the grand jury to be the man who inflicted the mortal blow. Five hundred dollars reward had been offered by the governor for his apprehension, and he was arrested--arrested for wilful and deliberate murder; and Judge Lecompte, disregarding the feelings of an incensed public; disregarding his own duty as a United States judge, sworn to discharge the duties of his office with fidelity; disregarding the sanctity of his judicial robes; bound in honor as in law to know no party, and show no favoritism--released that man, whose hands were dripping with innocent blood, to go at large, and repeat the same foul crime.

    "It was too much for our territorial executive to bear. He had seen the villany of that judge, and had passed him by. He had seen Judge Jeffreys' character re-enacted on the judicial bench in Kansas, and had winced at his numberless faults. But when such a high-handed and atrocious act as the one alluded to, came to his knowledge, it was too much for his equanimity to endure longer. Sworn to see that the laws were faithfully executed, and feeling the sacredness of his pledge to know no north, no south, no east, no west, but to discharge his duty honestly, as given in his inaugural, he resolved on discharging that duty, and ordered Hays again into custody. Donalson, who summoned a posse of half a thousand men to aid in arresting three individuals where no resistance was threatened, refused to obey the reasonable request of the governor. If Governor Geary possesses a particle of influence with the national administration, it is clearly his duty to see that these men are removed from office."


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