Dodge City Courts, 1876-1886
The stereotype of frontier or cattletown justice as being “make shift as the towns that sprang up along the frontier’s far edges” does not hold for the District Court of the Ninth Judicial District in Dodge City, nor, for that matter, the city courts. Part of the misinterpretation can be blamed on the traditional image that all cattletowns adhered to quick, raw justice of the Judge Roy Bean vintage. The contemporary press gave a note of authenticity to these fanciful accounts by their own lurid stories printed at the time as jests and satire by journalists given to a flamboyant style of reporting. Unfortunately, these burlesques have been accepted as true, eyewitness accounts. Dodge City’s reputation owes much to both sources: the latter stereotype and the contemporary exaggeration.
The stereotype has been enhanced by the assumption that the same lawless conditions present before the town became a cattle trading center continued to exist after the Texas trail herds arrived. At least three of the Kansas cattletowns had deserved, violent reputations and shoddy or little law enforcement before they began their careers as centers of cattle trade. Violence on the streets during Dodge City’s first three years after settlement, if not condoned, was not prosecuted in any orderly or consistent manner simply because the justice system was not in place. None of the cattletowns, including Dodge, remained static for any length of time. They grew rapidly and changed their characteristics as economic and social changes occurred. In Dodge City, community attitudes toward law and order
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were substantially altered after the buffalo business declined and continued to move toward the accepted national norms while the town developed as an important reception point for Texas cattle. After Dodge received municipal status as a third class city in the fall of 1875, a legal system was established which required even greater changes in community attitudes and policies.
Obviously, by 1875, the United States court system and legal procedures in the settled parts of the country were mature and sophisticated. But courts are no better than the individuals who interpret the law and serve on the bench and the bar. Fair and impartial trials depend upon how carefully those administering justice abide by acceptable standards. Frequently, depictions of the conditions under which justice was attempted in the last quarter of the nineteenth century in the West stress the ignorance, if not the corruption, of the court officials. Such unflattering image [sic] of those responsible for cattletown justice is offered in a recent popular account:
In the best of circumstances, with a conscientious jury and well-intentioned lawyers, a district judge still had his frustrations. Because many lawyers were abysmally ignorant of the law–only a relative few had been formally schooled in it before hanging out their shingles–a judge could expend a good deal of effort in prompting and guiding both prosecutor and defense. Nor was he himself necessarily versed in procedures and precedents. Though judges who presided over jury trials were expected to have some formal education in the law, those appointed to the Western bench often were men left over after others had picked off preferred judicial plums back East.[1]
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The major actors in the Dodge City court dramas between 1876 and 1886 bear slight resemblance to the untutored amateurs administering the law represented by this description. The judges and lawyers were, in the main, competent and were generally sensitive to the requirements of preserving correct rules and form. If cases were decided in much shorter time than today, the speed reflects more on the nature of the docket than on hasty and erratic procedures. Obviously, there have been changes in form and practice over the years, but the decorum and basic rules in important matters are not greatly different. Today’s lawyers would not feel terribly uncomfortable in the Dodge City District Court of the 1880s; nor would they find the language of the court profoundly changed.
When Kansas in 1909 adopted a new code of civil procedure, referred to as the “Field Code,” the changes in civil cases were substantial. In the words of one authority: “Free-wheeling in litigation was largely quashed. The importance of written pleadings was enhanced. There was now a premium on careful study, preparation and written documents. A ready tongue was still important, but its relative importance declined.” The initial pleading under the Field Code was required to state “facts constituting a cause of action,” and these “facts” were expected to become more specific and particularized. Under the new code, acceptance of “facts” rather than the pleaders’ conclusions became crucial, frequently tested by a demurrer. The plaintiff had the burden of supplying evidence (facts) to justify a judgment in his favor if he expected the jury to accept the case as he presented it.[2]
To a much more limited degree, the same general judicial philosophy was to apply [sic] to the new criminal proceedings. More consistency and
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precision in both oral and written expression is required in criminal cases today than in the older courts. There is little evidence, however, that in the serious cases in Dodge’s District Court the judge tolerated excessive bombast or oratorical pyrotechnics. Oratorical flourishes were more popular in the nineteenth century in any public presentation, whether in court or before civic, religious, or educational audiences. Lawyers were expected to be great, even grand, speakers. Such generalizations, however, need to be understood in terms of degree rather than absolutes.
The written briefs of Dodge City lawyers like Michael W. “Mike” Sutton, Harry E. Gryden, and James T. Whitelaw were carefully drawn. When their appeals reached the Kansas Supreme Court, considered the most practiced and exemplary judicial body in the state, the justices there frequently used the language and arguments of the Dodge City briefs in reporting their judgments. But even the written statements submitted to the Supreme Court would appear over-drawn and excessive by today’s standards. In a civil suit defended by Mike Sutton, J.C. Strang, and Charles Walker, the crucial point was made with exaggerated embellishments:
How, then, can the law for the sale of school lands be enforced in an unorganized county, except by giving authority to the officers of the organized county to which it is attached, to enforce and carry out the provisions of this act? This act alone renders life and the pursuit of happiness secure in all the unorganized counties of the state. Without it, crime would run riot, and the murderer would no longer need to seek the shades of midnight to wreak his deadly vengeance, or secure his unhallowed gains. Not alone in the mountain fastnesses, nor in foreign climes, nor yet in the dense and crowded hordes of
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criminals that infest our cities, would he whom justice seeks be found; but in the beautiful plains of the western part of our noble state he might revel in the delights of a pleasant home, beautified, perhaps, by the money taken from his slain victim. Public policy alone would dictate, were it necessary, that this act be upheld.
The rest of the argument was more prosaic, relying on clear marshalling of logic and facts.[3]
Equally wide of the mark is the popular picture of quick, hasty, and certain convictions in which judges and juries ignored the niceties and safeguards of individual rights. In most instances, the trials were conducted with dignity and careful attention to proper procedure. Juries were no more hasty, emotional, or partial than they are today. They usually took less time to reach a verdict, but there are instances of prolonged jury deliberation; as an example, the Atkinson-Warren case in 1886 found the jury confined in a room from March 24 until March 29. There are other instances of juries moving at a snail’s pace and lawyers resorting to delaying tactics which added to the judge’s task. Yet there is little evidence to suggest that the District Judges badgered the lawyers to hurry cases or tolerated short cuts even though the District Judge’s work load was heavy, made doubly so by the distances he had to travel.[4]
If the trials proceeded without undue haste or pressure from the judges, convictions in the District Court are about the same today as they were a hundred years ago. Even the notorious frontier “Hanging Judge of Arkansas,” Isaac Parker, hanged only 88 persons of the 13,000 he tried, with 4,000 being acquitted (30.8%). In Indian Territory, 30% of the indictments at the trial led to nolle prosequi, judicial dismissal, or not guilty verdicts. Kansas in 1984 found 30.4% of felony cases and 28.8% of
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misdemeanors not guilty. Apparently, M.W. Sutton as County Attorney had a considerably higher ratio of convictions than the average prosecutor, but he never reached the 100% that the press claimed for him. A random sample of three sessions (1878, 1879, 1881) of the District Court in Dodge City as reported in newspapers placed convictions at 53.8%, continuances at 19.2%, and non-convictions at 27%.[5]
One procedure which has changed and invalidates many comparisons is the present use of plea bargaining. The need to clear backlogged dockets did not have the priority it now has. There was, however, a kind of modified process in which charges and punishments were scaled down. In one instance a man, James Dempster, charged with first degree murder was “persuaded” to plead guilty, “owing to the circumstantial character of the evidence and sentence was made murder in the second degree.” In several cases, the defendant was tried first on “an attempted murder” charge, and when the jury failed to agree, the charge was reduced to “assault and battery” the second time around. Although neither process closely resembles the current plea bargaining efficiency, the more awkward early process had the same effect. In these cases, neither haste nor crowded dockets motivated the court, but rather an attempt was made to “make the punishment fit the crime.”[6]
Reducing the charge from assault with intent to kill to the lesser crime of assault and battery was a frequent adjustment in the lower courts. After tempers cooled, or on direction of the judge who could look more dispassionately at the circumstances, the Justice of the Peace could and did try the case. One such instance received full coverage by the Ford County Globe that treated a fracas in a neighboring town with the levity it deserved:
The case was opened by Judge Burns, who surprised the opposite side by
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asking that the defendant be placed on trial for assault and battery, instead of assault with intent to kill. The defense objected, and a long argument ensued, in which each side exhibited great legal ability in expounding the law and smoking cheap five cent cigars to the great disgust of the honorable court. At the close of the argument, court was adjourned for six hours, to take a rest and consider the matter.
Although the reduction was hotly contested by the Acting County Attorney, the Justice of the Peace decided to insist on the lesser charge.[7]
Undoubtedly the surroundings in which a trial was held contributed to the degree of decorum in the procedure. When court was held in the cramped, upper story of the old jail where prisoner, prosecutor, judge, sheriff, witnesses and spectators sat cheek by jowl, the room forced a more informal and lax atmosphere. Dodge City was blessed in 1876 with a new courthouse in which the District Court was held. The building of native stone and locally fired brick had, according to the Ford County Globe, “the best courtrooms in western Kansas, good offices for county officers, and a splendid jail.” The “splendid jail” in the basement fashioned from limestone, known to those lodged there as the “lime kiln,” added to the sense of security and reduced the need for release on inadequate bail which had led earlier to many prisoners escaping prosecution by fleeing the county once they were released. It was a great improvement over the old wooden-plank jail south of the tracks on Front Street. Although not totally escape proof, it was no longer possible for a prisoner to carve his way out with a pen knife as one prisoner did in the old wooden structure. But the major physical improvement was in the courtroom which was large enough to serve as a theater occasionally, and was designed and furnished
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in traditional courtroom style. In this more commodious and formal setting, individuals charged with crimes and the parties to legal disputes could more easily sense the somber and judicious implications of the process. The legal actors–judges, lawyers, jury, and witnesses–were more willing to observe the proprieties of court procedures and court etiquette seemed more appropriate. On the local level, the District courtroom provided a setting for government in its most formal and mature development.[8]
The types of crime on the dockets in the 1880s somewhat resemble those of today with a major difference related to automobile and traffic violations. Drunkenness, disorderly conduct, and petty larceny occupied much of the time of the city courts. Dodge was also more aware of vagrants than most towns, and usually punished them by ordering them out of town by sundown. For a time following the passage (August 1878) of a revenue-producing ordinance fining any “inmate or resident of any brothel, bawdy house or house of ill-fame” and an ordinance against gambling the city did a brisk business in those categories. As intended, the proprietors of the houses and halls considered the fines no more than a nuisance tax for doing a profitable business.[9]
The District Courts dealt with a great variety of civil and criminal cases as determined by state statute. The only ones not handled were the minor offenses–small claims, misdemeanors, and breakage of local ordinances, which were settled by the city courts and the Justice of the Peace. Horse stealing and cattle rustling cases did appear rather frequently, although not so often that they can be compared to auto thefts on today’s dockets. Larceny, divorce, and assault outnumbered other suits.
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Heinous crimes are far down the list. As a place of wild lawlessness, Dodge City’s reputation was and is highly exaggerated. Although no place for faint hearts, and while Dodge remained a fairly wide-open town as long as the Texas cattle came to the stockyards, its most lethal period had preceded the cowboy. After 1876, the criminal justice system, from the peace officers through the courts, did a commendable job in curbing violence. Civil cases do not appear as similar to today’s suits as the criminal cases. The human emotions generating crimes in that period were not much different from those a hundred years later. Crimes resulting from passion, greed, covetousness, and uncontrolled tempers spark criminal actions similar to those in any age. But since civil suits deal in material matters, and the nature of the economic life and the kinds of material development present cause the dispute to appear markedly different. Damages caused by live-stock grazing on growing crops, or the loss of “One Brown Canvas copper riveted over Coat,” debts of $5.00 for Osage orange seeds, and attachments of “bay horses, harness, and buggies” speak of a far different time. But even in civil suits, many of the cases are quite familiar: damages caused by loss of goods, work uncompleted, divorce, and wages unpaid would not appear out of place on a contemporary docket.[10]
Both the Ninth and Sixteenth Judicial Districts required much travel by the judges who were obligated to hold court at least twice each year in each of the counties with a District Court and, if the docket demanded, special sessions at other times. The Ninth District included eleven counties with District Courts and “all that portion of the state lying south of the fourth standard parallel, arid west of the counties of Hodgman,
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Ford, and Clark.” The Sixteenth District included twenty-seven counties. The Ford County District, because of its western location, had the unorganized counties in the southwestern part of the state attached to it for judicial purposes. These counties in 1881 included Clark, Meade, Seward, Stevens, Kansas, Stanton, Grant, Arapahoe, Foote, Sequoyah, Kearney, Hamilton, Greeley, and Buffalo. Only two district judges served the Dodge City lawyers: Samuel R. Peters of Newton from March 1, 1875 to December 12, 1882, while Dodge was in the Ninth District, and James C. Strang of Larned from March 8, 1881 to January 1, 1890, while serving the Sixteenth District. Both men had considerable experience before coming to the district bench and both moved on to important political, legal, or judicial positions.
In Dodge City, the travel required of the judgeship, which wore out many a frontier judge, was relieved by the easy access of the Atchison, Topeka and Santa Fe Railroad. Still, it was a grueling job. Just how onerous is illustrated in the description by the Ford County Globe of Judge Samuel R. Peters’ work in the year 1877, when he was reported to have dispensed with 919 docketed cases and traveled 8170 miles in performing his “herculean task.” The record of the District Court Judges was a remarkable one and the process and the procedures maintained were at least on a par with District Courts in the more settled Eastern states.[11]
The Justice of the Peace Courts, although representing the lowest state unit, the township, were constitutional courts of great importance on the frontier. Each township could elect two J.P.s for two-year terms with the Governor filling vacancies which might occur between elections. The powers of the court were impressive, including original jurisdiction in
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both petty civil and criminal suits, holding preliminary examinations preparatory to handing cases to the grand jury or referring to the District Court, confining the insane, acting as coroner, collecting any assessment made upon the premium notes of the insured, and staying execution of judgments. The J.P. could also perform marriages and administer oaths. Matters of great importance came first to the attention of the J.P. At inquests, he determined cause of death, the initial need to consider a charge, and the appropriateness of jail or bail. In civil suits the J.P.s also handled cases in which sizable amounts of money were in dispute. When the County Commission refused to pay a warrant to H.P. Myton, he sought redress from Justice of the Peace R.G. Cook who awarded him the full amount of $299.30 plus 7% interest from the date of issue. A number of similar cases were acted on by Cook and other J.P.s. Compensation of the Justices was by fee; the rate established by state statute. Police Courts resembled the Justice of the Peace Courts and a J.P. could serve as Police Judge in the absence of that official. The state statutes provided that “The police judge shall be a conservator of the peace, and shall have exclusive original jurisdiction to hear and determine all offenses against the ordinance of the city.” Like the J.P.s, no legal training was required and the judge was compensated by fees based on the same schedule as that of the J.P.s.[12]
The local courts have suffered most from popular account, as well they should. Even in Dodge City the Justice of the Peace and the city courts were occasionally in the hands of incompetents and the proceedings could border on the farcical. The newspapers there did much to exaggerate and perpetuate the ludicrous image, since what they reported as happening in court had only a general resemblance to the actual trial. Klaine’s description of “a day in the life of the Dodge City police court” has been
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widely distributed as the real thing. Stripped of Klaine’s hyperbole, the story reports the court dealing with three cases of disturbing the peace, in which one of the defendants had to be restrained in court by one of the peace officers. Klaine converted those dull facts into readable copy:
‘The Marshal will preserve strict order,’ said the Judge. ‘Any person caught throwing turnips, cigar stumps, beets, or old quids of tobacco at this Court will be immediately arranged before this bar of Justice.’ Then Joe [Policeman J.W. Mason] looked savagely at the mob in attendance, hitched his ivory handle a little to the left and adjusted his moustache. ‘Trot out the wicked and unfortunate, and let the cotillion commence,’ said his Honor.
City vs. James Martin–But just then a complaint not on file had to be attended to, and Reverent John Walsh, of Las Animas, took the Throne of Justice, while the Judge stepped over to Hoover’s. ‘You are here for horse stealing,’ says Walsh. ‘I can clean out the d—-d court,’ says Martin. Then the City Attorney [E.F. Colborn] was banged into a pigeon hole in the desk, the table upset, the windows kicked out and the railing broke down. When order was restored, Joe’s thumb was ‘some chawed,’ Assistant Marshal Masterson’s nose sliced a trifle, and the rantankerous originator of all this, James Martin, Esq., was bleeding from a half dozen cuts on the head, inflicted by Masterson’s revolver. Then Walsh was deposed and Judge Frost took his seat, chewing burnt coffee, as his habit, for his complexion. The evidence was brief and pointed. ‘Again,’ said the Judge, as he rested his alabaster brow on his left paw, ‘do you appear within this sacred realm, of which I, and only I, am high muck-i-muck. You have disturbed the
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quiet of our lovely village. Why, instead of letting the demon of passion fever your brain into this fray, did you not shake hands and call it all a mistake. Then the lion and the lamb would have lain down together and white-robed peace would have fanned you with her silvery wings and elevated your thoughts to the good and pure by her smiles of approbation: but no, you went to chawing and clawing and pulling hair. It is $10.00 and costs, Mr. Martin.’
‘Make way for the witnesses,’ says Joe, as he winks at the two coons that comes to the front, and plants one on each side of Mr. Morphy, who appears for the defendant–‘ a thorn between two roses.’ It was the City vs. Monroe Henderson, all being ‘niggus’ except the City Attorney and Mr. Morphy. The prosecuting witness, Miss Carrie, looked ‘the last rose of summer all faded and gone’ to — . Her best heart’s blood (pumped from her nose) was freely bespattering the light folds which but feebly hid her palpitating bosom. Her starboard eye was closed, and a lump like a burnt bisquit ornamented her forehead. The evidence showed that the idol of her affections, a certain moke named Baris, had first busted her eye, loosened her ribs and kicked the stuffing generally out of Miss Carrie. That Carrie then got on the war path, procured a hollow ground razor, flung tin cans at defendant, and used such naughty, naughty language as made the Judge breathe a silent prayer, and caused Walsh to take the open air in horror. But the fact still remained that defendant had ‘pasted’ her one on the nose. The City Attorney dwelt upon the heinousness of a strong giant man smiting a frail woman. Mr. Morphy, for defendant, told two or three good stories, bragged on the Court, winked at the witnesses
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and thought he had a good case, but the marble jaws of justice snapped with adamantine firmness, and it was $5.00 and costs. Appeal taken.
It was Carrie’s turn next to taste the bitter draughts brewed in our Police Court. She pled ‘Guilty, your Honor, just to carrying that razor in my hand. ‘Deed, ‘deed, your Honor, I never had it under my clothes at all.’ Carrie received an eighteen dollar moral lecture and a fine of $5.00 and costs, and Court stood adjourned.
Such accounts were not intended or understood at the time to be factual reporting but were, in the words of Joseph Snell in his thoroughly researched account of Kansas gunfighters, “the eruptions of humorous journalese.” Frontier humor tended to be broad and could be blatantly racist.[13]
According to Robert Wright, one J.P. attracted the attention of the humorist Bill Nye who reported how the J.P. reversed a decision in favor of the plaintiff when he discovered the defendant was broke and unable to pay the court costs ,while the plaintiff had ample funds. The J.P., W.Y. McIntosh, later was forced to resign when the County Attorney M.W. Sutton brought him to trial for overcharging the legal limits for fees. However, by the mid-18 70s, even the lower courts of Dodge City were in good hands. Frequently, lawyers held the offices as a means of supplementing their income. It was rarely the case that the Dodge City courts were not presided over by one of the local attorneys. All lawyers were called “Judge”; most who had any rightful claim to the title gained it in one of the lower courts. The position of J.P. or Police Judge was not taken lightly. Colonel T.S. Jones, one of the most dignified and respected of the attorneys, won a hard-fought campaign for the position of Police Judge in 1881. In fact, most elections for the positions were hotly contested.
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In one of the closest races, Harry Gryden lost by two votes (129 to 127) to a non-lawyer. Four years before that, the campaign for the position attracted so much attention that a rostrum was erected in front of the Saratoga House, where Dr. S. Berry Dorr and Dan Frost held a formal debate amidst considerable heckling that interrupted the speakers with “bright sally[ies] of wit or sparkling humor [which] electrified the audience with spontaneous outbursts of applause.”[14]
D.M. Frost, R. E. Burns, and H.M. McGarry, all attorneys, served as Justices of the Peace. The office was considered important enough to Sutton that he went to some pains, as usual behind the scenes and confidential, to get F.T.M. Wenie appointed J.P. by the Governor at a time when Wenie, although primarily a businessman, was an active attorney. One legal suit that Sutton fought all the way to the State Supreme Court had to do with the jurisdictional rights of a Finney County J.P. The J.P.’ s status was certainly an honorable one, and, because of the nature of most claims and crimes, fairly active.
Records preserved of city court actions, show the proceedings in the lowest courts to be relatively formal, with witnesses present, the accused represented by counsel, and accurate records kept. The individuals’ rights were assured even before the bar of the lowly J. P’s court. Fines were relatively heavy, and some judges took pride in being considered stern and unyielding. In the following instance, the costs totalled [sic] $20.75, or about three weeks’ pay for a laboring man:
Hattie Mauzy Defendant arrested on the complaint of. James Masterson charging that on the 5th day of Oct. AD 1878 at the said City of Dodge City,–The said Defendant Hattie Mauzy…within the Corporate limits
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of the said city an inmate and resident of a Certain Brothel Situated on … 24 Block on Locust Street in the said City of Dodge City contrary to the provisions of Section II of Ordinance No 42 entitled an Ordinance Relative to houses of ill-fame. Now on this the 8th day of Oct 1878 have this cause for hearing. The Plaintiff appears by its attorney E.F. Colborn and the Deft in person and by her attorney H.E. Gryden. The Defendant waives arraignment and pleads not Guilty. Whereupon Wyatt S. Earp, James Masterson, Wm Tilghman and James R. Ballard are sworn & testify for the plaintiff and Hattie Mauzy is sworn & testifies in behalf of the Defendant. After hearing the Testimony of both Plaintiff & defendant and listening to the argument of Counsel, the Court does find that the charges contained in the Complaint are true and that the Deft. Hattie Mauzy is guilty as charged.
It is there upon considered ordered and adjudged by the Court that the Deft Hattie Mauzy do pay a fine of Ten dollars & the Cost of this prosecution and that she stand committed until the same is paid.
Bond of appeal filed the 8th day of October AD 1878 and Defendant Hattie Mauzy released.[15]
All seemed to be in order and justice served. Although the legal language was a bit strained, the grammar unpolished, and the record preserved in an untidy and disorderly scrawl, the trial process is clearly far from the burlesque Klaine described in “a day in the life of the Dodge City police court.”
The court which received the most criticism in Ford County was the Probate Court, which came near at times to representing the stereotypical frontier justice. Having jurisdiction over the probation of wills, admin-
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isiration of decedent’s estate, and guardianship of minors and incompetents, the court had considerable administrative power. The major area of abuse came with its authority to issue writs of habeas corpus. Such a writ could secure release from custody of any imprisoned person on a convincing showing of a denial of a constitutional right or other official illegal conduct, such as the denial of or excessive requirement of bail or illegal arrest. Considering the frequent informality of arrest and the difficulty of following procedures to the letter of the law because of the distances traveled by the sheriff in transporting prisoners, writs were frequently sought and obtained in a Probate Court.
Judges in the Probate Courts rarely had legal training: only one of Dodge’s Probate Judges during the cattletown decade was ever admitted to the bar and one, August Crumberg, was elected under an assumed name because, he said, he wished to “conceal his whereabouts.” These judges, more than any other magistrates, would bow to the superior knowledge and glib tongue of an attorney. Part of their willingness to please undoubtedly came from the miserable pay the office received. Most of the fees were fixed by law and those that were not were determined by what the Clerk of the District Court was allowed. For issuing a subpoena a judge was allowed 25¢, administering an oath 10¢, recording a will 10¢, and probating a will or issuing a marriage license, $1.00. The highest fee they could earn was $3.00 for a hearing on a writ of habeas corpus. The judges, consequently, were inclined to be overly cooperative in setting times for hearings to suit the convenience of an attorney. On a number of occasions, the court was convened late at night without notification to all parties involved. A case in point was one dealing with an alleged theft of
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horses in the Texas Panhandle by W.B. (or B.W.) Rogers and four companions. The owner, Milton Harrison, pursued the thieves, caught them at Hays City, and brought them to Dodge where they were turned over to Sheriff Bat Masterson for safekeeping. Bat, smarting under his recent defeat for reelection, was at best careless, accepted the prisoners, and locked them in the Dodge City jail. When Sutton, the County Attorney, heard they were being held without any authorization, he requested a writ of habeas corpus. Obviously, Bat could give no justification for holding the men and, with complete candor, wrote a brief explanation for the Probate Judge Nicholas Klaine:
State of Kansas, Co. of Ford
To the Probate Court: I hereby state that I hold the within named parties without any authority whatever; that I have no commitment of them.
W.B. Masterson
Sheriff
Harrison was not informed of the hearing which was held early the next morning and he was considerably disturbed to find the men he had tracked from Texas released and well out of the country. Masterson’s excuse for not informing Harrison was that he couldn’t find him, and that the one plaintiff he did locate was so drunk “he would not have known the difference between a writ of habeas corpus and a Texas steer.”[16]
Other instances of an over-cooperative judge in Dodge City freeing undeserving prisoners were cause for considerable complaint. After one such incident, the Kinsley Graphic editorialized under the headline, “Prostitution of the Writ of Habeas Corpus”:
Unfortunately, Kansas, with a carelessness little less than criminal,
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the legislature has conferred the power to issue this writ, not only on the Judges of the Supreme Court but also on the Probate Courts. When it is considered that few of the Justices of our Probate Courts are men learned in the law, and many of them distinguished for their ignorance of the first principles of common law, it is at once seen that to commit the power to issue a writ of such high character and dignity may lead–and, in fact, has led–to the most serious consequences. Criminals have gone unwhipped of justice, and the laws have been set at defiance. The great writ that was intended to be the safeguard of the liberties of the people, bids fair to become the destroyer of peace and welfare of society.[17]
The District Courts were far better served than the lower courts. The finest eye-witness accounts of the procedure and atmosphere of the District Court in Dodge City were given by Dan Frost. Not only was Frost, as an attorney, knowledgable [sic] of the law, but he was a perceptive observer and appreciated the niceties of procedure. Representative of Frost’s reporting was his coverage of the January 1877 session, which had been a busy one with “a large attendance…of interested parties, jurors, witnesses, etc.” The court remained in session Tuesday through late Saturday when it recessed for a week before reconvening to try the civil suits. On Saturday, just before adjournment, Judge Samuel R. Peters passed sentence upon the six who had been convicted. Under the headline, “The Way of the Transgressor,” Frost described the court:
To all who witnessed the scene in the court room last Saturday evening, the proof was positive that ‘the way of the transgressor is hard.’ The room was crowded with curious spectators, who had heard that the convicts were to be sentenced that evening, and as sentences
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in this community have been almost as rare as angels’ visits in the past–few and far between–it was natural for the people to assemble as they would to witness a contest in the arena. The Judge was seated at his desk, his grave and solemn countenance told that his thoughts were stern and decisive. Groups of attorneys conversed in low whispers within the railing, all of whom, save one–the prosecutor–had failed to get the ear of the jury, and their spent eloquence was as pearls cast before swine–trampled and trod upon. In a row in front of the Judge sat the six sinners for whom they had labored; all were convicted, and from their features every ray of hope had fled. The whispering was hushed in the room as Judge Peters finished writing, laid aside his pen and reflecting for a moment, said, ‘James A. Bailey, you may stand up.’ The first of the six slowly rose to his feet. He was a man of fine appearance, and to questions propounded by the Judge, answered that he was born and raised in New York; was 42 years of age; had received an education, and before coming west was employed as a traveling salesman for his brother. When asked if he had any reason to offer why sentence should not be pronounced, he said he had none, as he had plead guilty; but in view of the fact that he was already advanced in years, he hoped the Judge would not sentence him to a long term, as he would be unable to survive it. He asked that the fact of his being under the influence of liquor be considered in mitigation of his crime.
He had stolen a horse.
Frank Jennings was next called up. He was from Pennsylvania; was 26 years old; had been in Kansas five months; has a mother living; by
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profession a house carpenter. Was under the influence of liquor. Begged the Court to treat him with leniency. His offense was horse stealing.
James Skelley, convicted of stealing a gun. Was 27 years old; been in the west two years; from Illinois; parents both living; by trade a glass blower; uneducated. Was under the influence of liquor; hoped the Court would be lenient.
H. Gould, [ “Skunk” Curley] assault and battery with intent to commit murder. Mr. Gould wore a smiling countenance, and did not seem to fully comprehend his situation. Was a native of Kansas; by occupation a herder of cattle; age, 24 years. Was influenced by liquor. In view of his tender years he asked the court to be merciful.
Mr. Sebastian, charged with stealing 26 sacks of corn, was the only one of the six who claimed to be innocent, 31 years of age.
Mr. John Brown, charged with the same offense as Sebastian, said he supposed, from the evidence he was guilty. Was 36 years of age and by trade a butcher. Was intoxicated at the time of the theft.
After the prisoners had all been thus questioned, Messrs. Gryden, Jones and Kellogg, in behalf of their respective convicted clients, argued to the Judge, and directed his attention to the I brightest spots’ in the lives and acts of the criminals, and asked that mercy be shown them. The Judge then passed the following sentences, the date of imprisonment to commence Jan. 7th, 1879; Bailey, two years and six months; Jennings, two years and six months; Skelley, two years and three months; H. Gould, two years and three months; Sebastian, eighteen months; Brown, two years and three months.
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The remarks of Judge Peters on this occasion were very appropriate and the advice he gave should be followed by all who heard it and witnessed this sad scene. It was long after lamplight when court adjourned, and the crowd dispersed, free to go where they pleased, while the doomed six filed out under heavy guard to seek what comfort they might within the narrow bounds of their lonely prison cells.[18]
Not all sentencing appearances were conducted with such efficiency and dispatch. The trial of John S. McCarty, a “confidence man” charged with robbery by use of a “monte game,” was a case in point:
The Judge overruled the motion for a new trial, and on Monday evening was the time set for the passing of the sentence. The accused pad been admitted to bail in the sum of $8,000, and when his appearance was demanded he was non est. County Attorney Whitelaw, on Monday, moved that the prisoner be taken charge of by an officer, but the court said that the accused was on bail and his custody was not necessary, ‘or words to that effect.’ The bonds of McCarty are also missing. It is said that the bond never passed into the hands of the District Clerk, so he informs us. A party started in pursuit of McCarty, supposing that he had gone south in the stage, but they returned without the fugitive, he having taken another course.
Judge [J.C.] Strang, in the course of some remarks to McCarty, commenting upon the latter’s course, said that the rolling stone gathers no moss. In his ‘argument’ for his defense, McCarty retorted upon the Judge’s suggestion by citing a circumstance in the life of another. In the defense of his course he said that it was ‘the rambling bee that gathers much honey.’ At this juncture, it would
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appear that McCarty is the rambling bee in search of more honey. Whose comb will he fill next from the result of his rambles, after the victims who too eagerly fall prey to his wily schemes?
The bondsmen are responsible notwithstanding the bonds cannot be found. The bonds can be proven by competent witnesses. A forfeiture of the bond was taken in court on Tuesday morning.[19]
The press was quick to expose the irregularities and to call for an accounting of responsibilities. Nick Klaine wrote in an editorial huff: “Ford County has been at considerable expense…; and [for] the efforts of justice to be frittered away in this manner is a shame and a mockery. The responsibility will be placed where it belongs.” The editor wanted his readers to know that the integrity of the courts was under the careful scrutiny of the press.[20]
The extent to which the rights of the individual were to be preserved and the letter of the law enforced were matters of great concern and occupied much of the time of the court. Occasionally, the court was presented with questions the judge could not immediately answer. In one such instance, the judge adjourned the court and spent much of the night researching the problem. Judge Strang had been confronted with the question: “Has the court, in the absence of a regular panel, power to order a drawing?” The next morning, he presented “a long and able argument” which found that there would be “no jury trial this term except by agreement.” At the same session, the judge “spent several days” studying the briefs of E.H. Borton as to whether a judgment could be reopened after the statute of limitations had run out. Awareness of the importance of adhering to correct procedures, not haste, motivated these judges.[21]
In one of the most thoroughly covered trials, Dave Mather’s killing of
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Tom Nixon, the lawyers clashed over several points of procedure in the preliminary hearing. At one point, the prosecuting attorney, Whitelaw, moved that the court require the defense to name its witnesses, that they be examined separately, and that all but the witness under examination be excluded from the court room. Whitelaw then turned to Sutton, requesting him to name his witnesses. Sutton refused, saying he was not certain of what the necessary defense would be at that point and he might require several witnesses or none in response to the prosecuting actions. He concluded that
there were able attorneys for the State and all the power of the great State of Kansas stood ready to sustain them. To refuse this [the right not to name his witnesses] was to throw upon themselves the imputation that they were afraid of justice. It is an established rule that the defense may or may not introduce testimony and no power can compel them to say at this stage that they will or will not do it. No undue advantage should be taken of the opposing counsel.
The court supported Sutton. Whitelaw then tried to get reporters barred from the court, arguing that if coverage was published, “nine-tenths of the people of Ford county would read them, and it would be impossible to procure an unprejudiced jury in the county.” John Speer, the reporter for the Kansas Cowboy, who, as the free-state newspaper editor of the Kansas Pioneer in Lawrence, was one of the targets of Quantrill’s Raid, rose and defended his presence. Speer, age 70 at the time, was something of a legend in Kansas journalistic circles as a champion of the rights of the accused. In this instance, he won the day and the court overruled Whitelaw’s motion. The press carefully and in detail reported all the
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testimony, cross examination, and re-examination taken in the trial. Mather was eventually granted a writ of habeas corpus, a change of venue, and found not guilty. The major consideration of the court, obviously, was a fair and impartial trial in which the legal safeguards of the defendant were upheld. The judge’s decision was not unusual and he certainly was not “prompting” or “guiding” either the prosecutor or defense.[22]
Occasionally, the judge’s decision was precedent setting. In 1884, at the height of the struggle over prohibition, Judge Strang acted to disqualify a juror. Kansas had been legally dry since 1881, but Dodge City blatantly ignored the constitutional prohibition. In empaneling the jury in the widely publicized Bird Case, the following exchange took place:
In the District Court on Tuesday, Judge Strang made a suggestion which created a slight sensation in court and had considerable effect on the outside of the court room. The precedent has been established that persons engaged in selling liquor are disqualified to sit as jurymen.
In the empaneling of a jury in the Bird case, a barkeeper was proposed for a juror–Judge [N.C.] Sterry, counsel for Bird, propounded the following question to him:
Sterry– What is your business?
Proposed Juror–Barkeeper.
Sterry–Selling liquor?
County Attorney Whitelaw–I object; the counsel has no right to make the juror criminate himself.
Court–That is not your affair.
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County Attorney–But I can suggest it to him.
Court–You have no right to do that.
County Attorney–Then the court should do so.
Court–That is not my business, either; and it is not the business of the county attorney to attempt to shield violators of the law, but to prosecute them.[23]
Both Sterry and the Judge were fully within their prerogatives to challenge the prospective juror as to his ability to be fair and impartial. The circumstances of the County Attorney defending an admitted lawbreaker must have seemed strange to the Judge. Whitelaw, however, represented the community which had not accepted the prohibition law and had established other standards of conduct. Sterry from Emporia and Judge Strang from Newton were “foreigners” in the eyes of the majority of Dodge Citians, and in that sense Whitelaw found justification in upholding his constituents’ standards. The prohibitionists of Dodge were elated by the judge’s action. Nick Klaine editorialized: “Little by little, prohibition is taking hold in this city.” By preventing a barkeeper from serving on a jury, Judge Strang had indicated to the public that “the whiskey selling appeared disreputable.” The ruling of the judge, no doubt, did affect the lifestyle of the town. Sentiments were changing and the trial of an unrelated matter did much to encourage the change.[24]
Usually the lawyers exercised considerable discretion in challenging the validity and decisions of the court, but on occasion such restraint was more than an attorney could bear. Such was the case when Harry Gryden referred to a particular trial as comparable to the con games on Front Street. At a little later date, Mike Sutton was able to express his
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disapproval with more finesse and humor, in fact helping the court over an awkward situation and at the same time pleasing the judge while insulting the jury. William Hutchinson recalled the time the District Court was held on Sunday. When the jury brought in a verdict against Sutton’s client, Sutton’s son, who was inordinately loyal to his father, rose and berated the judge for desecrating the Sabbath. He quoted the Scriptures at length and refused to be quiet until he sank exhausted in his chair. At that point the father rose and said:
Son, the passages of Scripture you have quoted are correct, and I will also quote you some. ‘If the ox or ass fall in the well on the Sabbath, get it out.’ Now Judge Hutchinson has twelve asses in the jury box and he wants to get them out.
The respect usually displayed by the attorneys was generally shared by the people of the community. In that sense, the court by its example led the town in its quest for progress and the expectation of a more orderly future.[25]
Equal justice under the rule of law is a basic principle of American democracy. Albeit only imperfectly realized, its attainment is democracy’s most cherished goal. The fulfillment of this basic objective is dependent on the laws supporting it, and especially on the procedures of the courts. Dodge City as a cattletown was well served by a court system firmly in place when the Texas trail herds reached the Atchison, Topeka and Santa Fe stockyards on the Arkansas River. Although much of what was found on the frontier in terms of social, economic, and political life was new, untested, and in a state of flux, the process and procedures of the courts had been refined over the centuries, dating back to the earliest English common law traditions. The courts in the new setting were more effective,
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more professional, and more attuned to the rest of the United States than any other unit of local government. The courts were, furthermore, under closer scrutiny from outside the community than other units such as the school board or County Commission. Challenges of procedures could be, and were, reviewed by the state’s highest tribunal. The presence of experienced judges in the District Courts who lived outside the area, and the work of attorneys with a variety of experiences and educational backgrounds who came from other towns, kept the atmosphere in that court far more sophisticated and far less parochial than in the other governmental units.
Finally, all the courts benefitted from the important and searching review of a local community. The driving force behind the rule of law comes not merely from constitutions and statutes, but from an informed public conscience. Dodge City was fortunate in having a number of outspoken editors, frequently representing rival newspapers, who were quick to expose any serious deviation from acceptable procedures and practices, and who tended to show both sides of a dispute. The courts, charged with the responsibility of putting into operation the compulsory force of the government, had the power to deprive citizens of their liberty, their goods, and even their lives. It was a sobering responsibility which saw the community carefully looking over the court’s shoulder, monitoring its actions.
If the courts were sometimes less than ideal, they did represent the democratic aspirations of a raw frontier community. As was true of the lawyers, the courts kept alive the hope for a better life, with the certainty of personal and social advancement.
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NOTES
Cowtown Courts
- Paul Trachtman, The Gunfighters (New York: Time-Life Books, 1974), p. 141.
- Philip H. Lewis, “The Changing Practice of Law, 1882-1982,” Requisite Learning and Good Moral Character, Robert W. Richmond, ed., (Topeka: Kansas Bar Association, 1982), p. 89.
- T.J. Philipin, et. al. vs. Thomas L. McCarty, County Superintendent, etc., Supreme Court (24 Kans.), pp. 285-93.
- Dodge City Ford County Globe, December 25, 1877; Dodge City Times, April 1, 1886.
- Frank Richard Parassel, The Western Peace Officer: Legacy of Law and Order, (Norman: University of Oklahoma Press, 1972), p. 236; information from the Kansas Judicial Administration Office, Topeka; Glenn Shirley, Law West of Fort Smith (Lincoln: University of Nebraska Press, 1957), p. 198; Dodge City Ford County Globe, July 2, 1878, January 25, 1881; Dodge City Times, January 11, February 1, 1879.
- James Dempster, the wife killer, received a stiff sentence in spite of the action. He was sentenced to twenty-five years in the penitentiary. Times, October 30, 1884, February 12, 1885.
- Dodge City Ford County Globe, February 21, 1882. For the same process at the District Court level, see report of State vs. J.W. Choulton, Dodge City Times, June 30, 1877.
- Dodge City Ford County Globe, January 15, 1878; Frederic R. Young, Dodge City: Up Through a Century in Story and Pictures (Dodge City, Kan.: Boot Hill Museum, 1972), pp. 62, 80, 91, 108.
- Parassel, Western Peace Officer, pp. 235-236; Joseph W. Snell, Painted Ladies of the Cowtown Frontier, being Vol. X (December 1965), of The Trail Guide (Kansas City, Missouri: Kansas City Posse, The Westerners); Dodge City Times, August 10, 1878.
- Adams Express Company vs. David Reudebaugh. Selected District Court Cases, Ms. Box 799; Joseph Briggs vs. William Wilkins, Civil Cases, unnumbered, Ms. Box 808; Beeman vs. Peres. Civil Cases, Case No. 168, Ms. Box 807, Kansas State Historical Society, Topeka, Kansas.
- “Official Roster of Kansas, 1854-1925,” Collections of the Kansas State Historical Society, 1923-1925, 16 (1925), pp. 667-68; Session Laws of Kansas, 1876, pp. 120-21, 168; 1881, pp. 199-200.
- General Statutes of Kansas, 1876, passim.
- Dodge City Times, August 11, 1877; Nyle H. MiIler and Joseph W. Snell, Great Gunfighters of the Kansas Cowtowns, 1867-1886, (Lincoln: University of Nebraska Press, 1967) p. 171.
- Dodge City Times, May 26, 1877, April 10, 1880; Wright, Dodge City, p. 187; Dodge City Ford County Globe, February 15, 1881; April 13, 1880.
- Cook vs. the Ford County Commissioners, Civil Appearance Docket A, Ms. Box 805; City of Dodge City vs. Hattie Mauzy, Justice Docket–Dodge City, July 5, 1878 to October 5, 1882. Box 96. Photocopy, W.S. Campbell Collection, Division of Manuscripts, University of Oklahoma Library, Norman.
- Compiled Laws of Kansas,1879, Compiled by C.F.W. Dassler (St. Louis: W.J. Gilbert Publishers, 1879), p. 440. Tarbox vs. Sughrue, Case No. 394; Dodge City Ford County Globe, November 18, 1879; Dodge City Times, November 22, 1879.
- Kinsley Graphic, May 18, 1878.
- Dodge City Ford County Globe, January 14, 1879; Frost’s coverage of the courts was fuller than any of the other papers, except for those of John Speer.
- Dodge City Times, February 22, 1883.
- Ibid.
- Dodge City Ford County Globe, February 12, 1884.
- Dodge City Kansas Cowboy, August 2, 23, 1884; Dodge City Times, January 8, 1884; Dodge City Globe Live Stock Journal, August 5, 1884; A. T. Andreas, History of the State of Kansas, (Chicago: A.T. Andreas 1883), I, p. 344.
- Dodge City Times, June 12, 1884.
- Ibid.; Dodge City Democrat, March 27, 1886.
- Dodge City Journal, September 23, 1948.