Law West Of Fort Smith A History Of Frontier Justice In The Indian Territory 1834-1896

27586

'J

LAW WEST OF FORT SMITH

BY THE SAME AUTHOR!

Six Gun and Silver Star
Toughest of Them All

LAW
WEST OF
FORT SMITH

A History of Frontier Justice in
the Indian Territory, 1834-1896

by Glenn Shirley

Illustrated with Photographs
HENRY HOLT AND COMPANY, NEW YORK

Copyright 105? by Glenn Shirley,

All rights reserved, including the right to reproduce
this book or portions thereof in any form*

In Canada, George J. McLcod, Ltd.

FIRST EDITION

Library of Congress Catalog Card Number: 57-6193

8787OOII7

Printed m the Vmted States of America

FOR THE PEOPLE, LIVING AND DEAD,

WHO SAW THE LAW COME WEST OF FORT SMITH

PREFACE

MOST WORKS OP WESTERN AMERICAN HISTORY AND
lore tell of the acts of men performed within the law, detailing
their lives that made ours better by their living. We like to
exult in our American greatness, particularly the resounding
booms of the Southwest. This is good. But too often we fail
to make sober investigation into how these things came about
and the reason for our being here in a state of opulence and
good repute. We shy from the fact that all history is crowded
with deeds of lawlessness; but without recording these, the
complete history of an era or the subject dealt with cannot be
written.

Crime is sordid; dragging it from the grave doesn't better
its reputation. It is not done here to perpetuate the infamy of
men who transgressed the law. In Law West of Fort Smith I
have written a full account of the lawless conditions on our last
and wildest frontier, and how a lone federal judge became a
potent influence in the regulation of affairs that brought order
out of chaos in a vast section of country. By the same token, I
have preserved the gallant acts of the quiet men with rifles and
six-shooters who aided him in the legal side of the controversy.

Ignoring the efforts of such officials and portraying criminals

vii

Vlii PREFACE

as picturesque figures, unfortunately, is an old and shameful
practice. Robin Hood slants have been given atrocious careers.
Homicidal exhibitionists like Jesse James and Billy the Kid have
been painted as good men who got their thinking twisted be-
cause they were victims of passion and mistaken loyalty, or
were sinned against by society, and an industrious school of
fiction has embroidered this theme with lariats and rattlesnakes
and lies. In the same way, or simply out of thin air. illusions
have been built around the gangster of the Oklahoma frontier;
but a little serious consideration of the facts shows that here,
too, he prevailed only through illegal acts, continuous cruelty,
and brutality.

The land on which he thrived was all that territory west of
Fort Smith, Arkansas, from Texas and Kansas to Colorado And
no man's land, called "Indian country." Over il ruumod the
native red man, and to it in the 1830"s came the Five Civilued
Tribes, who brought their own laws and tribal courts.

But the Indian courts took no cognizance of the white nun,
Tribal laws had no application. The white intruder fell directly
under the laws of the United States then & vague and distant
thing in this land now called Oklahoma.
What really happened?
Soldiers of fortune rode the plains. The cattle and horse

thief, the prostitute, the desperado, the whisky pt< Idler* all

sought refuge where there was no u whitc man's court'* and no
law under which they could be extradited to the state ur territory
where they had committed their crimes,

The Civil War wrecked the peace of the Kivo Tribes. Its
aftermath was a maelstrom of racial hatred and unbridled
vice. Rape, robbery, and pillage became common offenses. Kill-
ers traveled in gangs.

Some of these outlaws, like the Paltons, Bill Powers, Dick
Broadwell, and Henry Starr, were hard livers who turned to
a life of outlawry with little effort. A few, like Jim Reed and
Belle Starr, were products of the war.

PREFACE IX

Others were like Ned Christie, Smoker Mankiller, John
Billee, Blue Duck, and Cherokee Bill, whose wanton whim was
shedding blood.

Martin Joseph and Jason Labreu were rapists. And many
were simply renegades and looters, like Bob Rogers, Jim French,
the Cook gang, and the Rufus Buck outlaws.

Their savagery flaunted itself. It seemed that every white
man, Negro, and half-breed who entered the country was a
criminal in the state from which he had come; that the last
thing on his mind at night was thievery and murder, and it was
his first thought in the morning. No American frontier ever saw
leagues of robbers so desperate, any hands so red with blood.
By 1875 this civilization was in the balance. Decent men, red
and white alike, cried to the government for protection.

The only court with jurisdiction over the Indian country
was the United States Court for the Western District of Arkan-
sas at Fort Smith. To it came Judge Isaac Charles Parker. It
fell upon him to rout these gangs of criminals. He was given
only two hundred marshals to police nearly seventy-four thou-
sand square miles and sixty thousand people; but he issued
warrants for the gangs and number-one bad men and ordered
the deputies to bring them in alive or dead. Sixty-five of these
marshals gave their lives in the field in line of duty before they
were able to hold the outlaws in check and, in a gratifyingly
large number of cases, extinguished them.

A brutally picturesque drama it was with amazing inter-
ludes punctuated by the dull thud of the gallows trap as men,
singly, in pairs, or six at a time, were plunged to oblivion. The
death penalty was prescribed more often and for more flagrant
violations of law than anywhere on the American continent.
That Judge Parker's administration was stern to the extreme
is attested by the fact that he sentenced 160 men to die and
hanged 79 of them.

His court was the most remarkable tribunal in the annals
of jurisprudence, the greatest distinctive criminal court in the

X - PREFACE

world; none ever existed with jurisdiction over so great an area,
and it was the only trial court in history from the decisions of
which there was, for more than fourteen years, no right of ap-
peal. He helped to build, and loved, an empire. He lived only a
short time after it crumbled before the march of white aggres-
sion.

Certainly no man of his time exerted a greater civilizing in-
fluence on this section of the West, and it may almost be said
that no other one man could have accomplished the great work
that his intellect, strength, and unswerving administration of
justice enabled him to do. If it appears that his efforts were
fanatical or bloodthirsty, it is well to remember that the times
produced this hero. The people owe him a debt of gratitude they
should not forget. Even in the town in which he lived and pre-
sided with distinction he deserves more than a meaner marker
in the National Cemetery.

From authentic sources, an accumulation of material result-
ing from extensive correspondence and research over a ten-
year period, this volume is designed to throw light on the real
story of why he hanged men, the kind of society he served,
and the law that created and destroyed his jurisdiction. As a
faithful record of fact, it is offered with the hope that his great
service will be better understood by a generation that knows
little of our indebtedness to him, and that his example will not
only interest but strengthen our faith in and admiration for
human courage and unselfish purpose.

N SHIRLEY
Stillwater, Oklahoma

CONTENTS

Page
Preface vii

Chapter

I "JOHN CHILDERS' SOUL HAS GONE TO HELL " . . 3

H LAND OF THE SIX-SHOOTER 9

III JUDGE PARKER 25

rv "BRING THEM IN ALIVE OR DEAD!" 41

V FIVE HUNDRED MILES TO FORT SMITH . ... 67
VI LADY DESPERADO 85

vii "AFTER i AM KILLED !" 99

VIII THE INFAMOUS COOKS Ill

IX APPEALS AND REVERSALS 139

X THE SAVAGE BUCKS 159

xi "THE WICKED FLEE" 175

XII ADJOURNED, FOREVER 197

Appendix A Chronology of Hangings 209

Appendix B Commutations and Pardons 233

Appendix C Reversals and Acquittals 239

Appendix D Bond Forfeited 243

Appendix E The Famous Grand Jury Charge . . . 245

Appendix F The Best Petit Jury Charge 273

Notes 305

Bibliography 325

xi

LAW WEST OF FORT SMITH

I

'JOHN CHILDERS' SOUL HAS GONE
TO HELL'

DEPUTY UNITED STATES MARSHAL JAMES MESSLER
adjusted the noose about the prisoner's neck. He placed the big
knot under the left ear in the hollow just back of the jawbone
and took up the slack. Then, mopping huge drops of perspiration
from his forehead with a soiled bandanna, he stared down the
thirteen steps at the two thousand sweating sight-seers who
packed the jail yard inside the grim stone walls of abandoned
Fort Smith.

Outside, the walls of the fort were lined with hacks, spring
wagons, and saddle horses. Many had come on foot. Others had
traveled hundreds of miles and had been in town as much as two
days, camping on the ground and sleeping at the foot of the
scaffold the night before to have ringside places. The whole
population, it seemed, along the Arkansas River on the Arkan-
sas borderall colors and sexes, from babes in arms to the halt
and graybeard had turned out to watch, with eager, morbid
curiosity, the spectacle of the first human being to die on the
newly erected gallows*

3

4 LAW WEST OF FORT SMITH

It was the afternoon of August 15, 1873. The sun boiled down.
There was not even a tiny stir of breeze. The sky was clear ex-
cept for a small black cloud coming up in the southwest. It
crossed the Arkansas, and as Messier adjusted the noose,
seemed to pause and hover over the scene.
The crowd waited.

The prisoner was John Childers. He was strong, of muscular
build, five feet eleven inches in height, and one hundred sixty
pounds in weight. Twenty-four years before this, his last day
of life on earth, he had been born on (Ywskin Cn-ek in the
Cherokee Nation, the son of John Childers, a white man, and
Katy Vann, his Cherokee wife. He had spent his childhood in
wickedness, and at the time of his arrest was a member of one
of the worst bands of brigands and plunderers to infest the wide-
spread "Indian country." His crime was murder, ami it had
been committed with such cold-blooded vinmisness that scarcely
one among the many assembled could not recite the revolting
details.

Reyburn Wedding was an old man who made his living travel-
ing through the Indian country trading flour ami bacon for hides
and produce. On the morning of October 14, IS7t\ ThiMers
met him near Caney Creek below the Kansas line in the < Chero-
kee Nation. A fine black horse that Wedding was driving caught
the outlaw's fancy, and he began dickering for a trade. Wadding
declined, saying he was not interested in parting with the
animal, and drove on.

Childers* face darkened. Deciding to havr the horse at any
cost, he spurred his pony ahead, overtaking the peddler, Hitrh-
ing his mount to the tail gate of the wagon, he climbed into the
seat beside him.

Together he and Wedding rode on toward (,'anry Crwk, while
Chiklers, according to testimony developed later at his trial,
bargained for the horse twenty-seven times* ami twenty-seven
times Wedding refused, Finally Childers smed the .surpri**d
trader by the head, whipped a long knife from his bdt, and

"John Childers' Soul Has Gone to Hell " S
before Wedding could move to defend himself, stretched the old
man across the back of the seat and slashed his throat from ear
to ear. Then the outlaw dumped the body in the water, stripped
the harness from the horse he coveted, and rode away.

Deputy Marshal Vennoy traced the well-known animal to
Childers' home near Klo Kotchka (now Broken Arrow) in the
Creek Nation and placed the killer under arrest. He was taken
to Van Buren, at that time the location of the federal court, and
arraigned before the United States Commissioner on December
2,1870.

There being no court in session at the time, Childers was
ordered held for action of the next grand jury. A few weeks
later, he and six other prisoners tunneled their way from the
jail and fled to the woods.

The others were soon captured. But Childers returned to his
old haunts, joined a renegade gang that was terrorizing the
Cherokee and Creek Nations, and succeeded in eluding officers
for months.

He might never have been rearrested nor Wedding's death
avenged had he not become enamored of a Fort Smith prosti-
tute whom he visited frequently. For $10 the woman confessed
the affair to Vennoy and agreed to aid in his capture. One
evening, while the fugitive was "reveling in her charms," Vennoy
and Deputy Sheriff Joe Peevy entered the room and snapped on
the handcuffs.

During the period intervening his escape and capture, Con-
gress had passed an act removing the United States Court for
the Western District of Arkansas from Van Buren to Fort
Smith. 1 In its new location, on May IS, 1871, a grand jury
brought in eleven indictments charging sixteen persons with
major offenses and John Childers with murder. He was found
guilty on November 11, 1872, and on May 19, 1873, was sen-
tenced to die on the scaffold, the execution date being Aug-
ust IS. 2

Behind Childers now stood a guard of six deputies headed by

6 LAW WEST OF FORT SMITH

Marshal John Sarber and, at his side, Deputy Messier. As yet
no regular hangman had been appointed to carry out the decrees
of this court, and Messier, for this occasion, had volunteered
his services.

Marshal Sarber faced the prisoner and the mumbling of the
crowd quieted down. Slowly he read the death warrant, while
Childers puffed a cigar with an air of indifference that had been
with him throughout his trial. Witnesses had furnished an alibi.
Even after his conviction he had felt confident that he would
receive a pardon or commutation. For the criminal class wa> a
power in the Indian country, and strong petitions for executive
clemency had been sent to Washington. Perhaps it wa< the in-
fluence brought to bear on the case from southern Kansas, where
Wedding had resided, that had caused the attorney general only
a few days before the date of execution, to refuse to interfere.
On the trap of the gallows, Childers still exhibited such non-
chalance that the hanging might not have been hi* own, and the
crowd stirred restlessly as if impatient at the delay.

Marshal Sarber spoke again, and anxious faces looked in his
direction.

"Are there any last words you wish to say, Childers?* 1 asked
Sarber.

The killer tossed away his cigar. For the first time .since his
capture he appeared disturbed.

Finally he broke his silence, and for sixteen minutes lie talked.
He quibbled at first, then admitted that he had murdered Weil-
ding, but claimed that he should not have been convicted be-
cause the prosecution had erred as to the time and date* nf the
offense. It was the only murder he had ever committed alone,
he said, and he regretted it and hoped that he would be for-
given. He admitted that the witnesses who had testified that he
was sixty miles away when the crime was committed had lied,
and he hoped God would forgive them too. Then, looking out
over the crowd that was eagerly drinking in his every word, he
added:

"John Childers' Soul Has Gone to Hell "7

"My pals and me once swore to help each other, no matter
what the circumstances. But they don't seem to be doing any-
thing for me now."

The marshal's voice rose: "If you will give me their names,
Childers, I pledge not to hang you now. What is your answer?"

It grew so quiet in the jail yard that the drone of insects in
the elms was the only sound. Dust and tobacco smoke hung
motionless in the air. The heat was stifling.

The condemned man's gaze, jerking away from Sarber, again
flicked over the crowd. Among them he recognized many of
his boon companions in crime, but to have turned informer
would have violated the morbid code that bound them each to
the other.

Instead, he waved them farewell with a general sweep of his
hand. To the marshal's offer he replied in a firm, clear voice
that all could hear:

"Didn't you say you were going to hang me?"

"Yes," Sarber replied.

"Then," Childers responded coolly, "why in hell don't you!"

Deputy Messier buckled his hands to his sides, while the
prisoner offered a short prayer. The black hood was adjusted.
Then the marshal gave the signal. The deputy released the bolt,
and John Chiiders' neck tilted curiously to one side as he shot
down to the end of the rope.

And at exactly the same moment a remarkable thing hap-
pened.

As the door fell from under Childers' feet, a tremendous
clap of thunder shook the earth of the enclosure, drowning com-
pletely the thudding noise of the cumbrous trap. The black
cloud hanging above the fort had seemed innocent enough.
From it now shot a bolt of lightning. It struck the frame of
the gibbet, shooting a thousand tiny sparks into the air.

"John Childers' soul has gone to hell I done heerd de
chains a-ciankinM" screamed an ashen-faced Negro woman as
she hysterically waved her arms and swooned in the center of

8 LAW WEST OF FORT SMITH

the throng. Then the cloud burst open and for several minutes
rain poured down, soaking the bewildered crowd.

The disposition of Childers' soul, as described by this frantic
Negro woman, might be questioned; none present, however,
could ever deny the startling phenomenon that attended its
violent liberation from his body. The entire proceedings--^ 1
grim ritual on the scaffold, the celestial detonation, pyrotech-
nics, and sudden drenching filled the spectators with awe.

Those who believed in the supernatural shuddered with fear.
fools who had come to mock and jeer at the law never attempted
an explanation. Some believed that the fall did not kill ChildtTs:
that after being cut down he regained consciousness, climbed
over the wall near the gallows, and fled. This story gained such
credence that for several years after his execution there were
persons who claimed they had seen him in the Indian nations,
alive and well. 3

The facts are that at 2:00 P.M. on that fatal day Deputy
Messier pulled the bolt that released the trap; a moment later
the ghastly work was done, the cloud had vanished, and all that
was left of John Childers hung limp and quivering.

Perhaps the accompanying thunder, lightning, ami rain
should be interpreted as God's wrathful condemnation of the
swelling battle between right and wrong in Oklahoma the
Armageddon of the West. For John Childers was to bt* the first
of more than fourscore convicted felons to die on this pillows
for crimes committed in what is now that state.

Nor was the fight to be easily won. It was to rage for more
than twenty-one years. For Childers himself , as lie .slorxl on the
scaffold with the noose around his neck, had revealed the tem-
per of the men who composed the forces of cvi! when he refused
to name his companions in crime and said:

"Didn't you say you were going to hang me? Then why in
hell don't you 1"

II

LAND OF THE SIX-SHOOTER

THE BATTLE TO WREST OKLAHOMA FROM THE HOST

of evil will best be understood If, before entering upon a recital

of the same, an explanation is given of the origin of the Fort

Smith court and the conditions of the crude period that brought

on the circumstances surrounding the execution of John Childers.

The first shadow of the court fell across the Indian country

when the Twenty-third Congress, on its last day in session,
June 30, 1834, passed the Intercourse Law, placing many re-
strictions on the relations of the whites and Indians. It was en-
titled "An Act to Regulate Trade and Intercourse with the In-
dian Tribes and Preserve Peace on the Frontiers," * It de-
scribed the Indian country as "all that part of the United States
west of the Mississippi and not within the States of Missouri
or Louisiana or the Territory of Arkansas, also that part of the
United States east of the Mississippi and not within any state,
to which the Indian title has not been extinguished," 2 and
provided "that for the sole purpose of carrying this act into
effect, all of that part of the Indian country west of the Mis-
sissippi River that is bounded north by the north line of the

9

10 LAW WEST OF FORT SMITH

lands assigned to the Osage Indians, produced (or continued")
east to the State of Missouri; west by the Mexican posses-
sions; south by the Red River; and east by the west line of the
Territory of Arkansas and the State of Missouri, shall be and
hereby is, annexed to the Territory of Arkansas; and that for
the purpose aforesaid, the residue of the Indian Country west
of the Mississippi River shall be and hereby is annexed to the
judicial district of Missouri; and for the purpose aforesaid,
the several portions of the Indian Country east of said river
shall be, and are hereby severally annexed to the Territory in
which they are situated." 3 Thus the section of Indian country
that is now Oklahoma and a strip of country fifty miles wide
across southern Kansas was made subject to the Western Dis-
trict of Arkansas for judicial purposes, and "so much of the
laws of the United States as provides for punishment of crimes
committed within any place within the sole or exclusive juris-
diction of the United States shall be in force in the Indian
country. PROVIDED, that the same shall not extend to crimes
committed by one Indian against the person or property of
another Indian." 4

On June 15, 1836 T the Territory of Arkansas was admitted
to the Union and the new state made one federal judicial dis-
trict. 5 A district court was created to consist of one judge, hold-
ing at the seat of government of the state at Little Rt>ck two
sessions annually, "and he shall, in all things, have and exercise
the same jurisdiction and powers which were by law given to
the judge of the Kentucky District under an act of September
24, 1789, entitled, 'An Act to Establish the judicial Court* of
the United States.* " The salary of the judge was fixed at $2000
per year, payable quarterly; he was empowered to appoint a
clerk who should receive the same fees as the clerk for the Ken-
tucky District; provision was made for the appointment of a
district attorney to be paid, in addition to his stated fees, $200
yearly, and the appointment of a marshal "to perform the ?anw
duties, be subject to the same regulations and penalties and

Land of the Six-Shooter 11

be entitled to the same fees as are prescribed to the marshal
in other districts, and he shall be entitled to $200 annually as
compensation for extra services." 6

On March 1, 1837, Congress approved an act giving the
Court of the United States for the District of Arkansas "the
same jurisdiction and power in all respects, whatever, that was
given to the several district courts of the United States, by an
act of Congress entitled, 'An Act to Regulate Trade and Inter-
course With the Indian Tribes and Preserve Peace on the
Frontiers 7 ," and provided that "the courts of the United States
in and for the District of Arkansas be and hereby are vested
with the same power and jurisdiction to hear, try, determine
and punish all crimes committed within that Indian country
designated in the twenty-fourth section of the act to which
this is a supplement, and therein and thereby annexed to the
Territory of Arkansas as were vested in the courts of the United
States for said territory before the same became a state. And
for the sole purpose of carrying this act into effect all that In-
dian country hereunto annexed by the said twenty-fourth sec-
tion of the act aforesaid to the Territory of Arkansas be, and
the same is, annexed to the State of Arkansas." 7

A military post had been established on the Arkansas near
Fort Smith as early as 1817 to preserve order among the In-
dian tribes. Western Arkansas and eastern Oklahoma were the
choice hunting grounds of the Quapaws, Comanches, and Chero-
kecs. The Osages, a proud and insolent people, ranged the
country from eastern Missouri south to the Red River and west
to the Rocky Mountains. They drove the native tribes from
the region, perpetrated outrageous offenses against their peo-
ple and property, and defied the authority of their own chiefs
until the War Department directed General Andrew Jackson,
then head of the Southern Division of the United States Army,
to establish a fort on the Arkansas near the Osage line and
erect, as quickly as possible, a stockade adequate to accom-
modate a company. 8

12 LAW WEST OF FORT SMITH

General Jackson communicated his orders to General Thomas
A. Smith, commander of the Ninth Military Department of the
United States Army at St. Louis, who in turn directed Major
S. H. Long to select a suitable spot on the Arkansas border and
there erect a military post. The site chosen by Major Long
was Belle Point, a sandstone bluff in the forest overlooking the
juncture of the Poteau and Arkansas rivers. Here the new fort
was constructed, w named Cantonment Smith in honor of
Thomas A. Smith, renamed Fort Smith; and the first com-
pany of troops under the command of Major William ttnul-
ford arrived on December 25. Indian hostilities were soon
brought under control, and by September, 1819, the warring
tribes sat in the first council at Fort Smith and smoked the
pipe of peace.

But peace did not last. When Congress organised Arkansas
Territory, the Indian country was made one country, and the
Indians within the tract wore placed under the supervision of
the territorial governor. Hostilities again broke out, and the
Seventh Infantry was ordered from St. Louis to Fort Smith in
February, 1822. 11

Despite these re-enforcements, the Osages continued their
war for control of the territory to the west. White Bottler* ami
traders farther up the Arkansas demanded protection, and in
April, 1824, with the establishment of Forts Gibson ami Towson
in the Indian country, the troops were removed to tluw points.
It was not until March 22, 1833, that troops were again sta-
tioned at Fort Smith to assist in carrying out Indian treaties
and the government's fixed policy of moving the Indian popu-
lation from east of the Mississippi into their western hornet
The following June these troops were ordered to Fort Coffee,
farther up the river, and later to Fort Wayne to the north, so
that Fort Smith was again unoccupied until 1838.

During this period many people had settled In this section
of the Southwest. The Arkansas being navigable for boats of
light draught and the only outlet for staple products, the little

Land of the Six-Shoo ter 13

frontier town became the center of activity. A month before the
admission of the Territory as a state, so much pressure had
been brought to bear for the erection of a post that would more
adequately defend its western border that Congress, by an act
approved May 14, 1836, authorized the removal of the garrison
at Fort Gibson "to some feasible point that would better ac-
commodate the troops" and "for better defense of the Arkansas
frontier," and appropriated $50,000 for a fort to be built at
the new point selected. 12 On April 4, 1838, a resolution was
passed authorizing the Secretary of War "to take not to exceed
$15,000 from the sum appropriated" and purchase a site for a
fort at or near the western border of Arkansas. 13 The new site
purchased was on the east bank of the river at the head of
what is now Garrison Avenue. Here a new and more substantial
fort was constructed and the modern city of Fort Smith de-
veloped.

The new fort was in the shape of a pentagon enclosed by
heavy walls of stone blasted from the bluff at Belle Point.
Loopholes four feet apart were provided for musketry. Can-
non bastions were built on the northeast and southeast corners
and on the south face, the latter being used as a powder maga-
zine. Inside were two large two-story brick buildings to quarter
officers and a barracks building for enlisted personnel. A small
building was erected near the northeast wall for a guardhouse,
and four blockhouses of stone, to be mounted with heavy ar-
tillery, were under construction when General Zachary Taylor,
in command of the military forces of the United States in the
Southwest, arrived in 1842. 14

By this year most of the Indians composing the Five Civil-
ized Tribes had been settled in Oklahoma and the warring
Osages routed. General Taylor thought the government was
wasting money. He believed he could protect the Arkansas
frontier from the tricks of the half-civilized Indians and allay
the fears of the white citizens without an expensive fortifica-
tion, and opposed an appropriation for further construction.

14 LAW WEST OF FORT SMITH

Two of the blockhouses were abandoned at their foundation.
The others were so near completion that the}' were finished, not
to accommodate heavy ordnance as originally intended, but
as ordinary stone buildings. One was used by the quartermaster,
the other as a commissary. 15 The annexation of Texas to the
United States in 1845 was highly displeasing to the Mexican
government, which still entertained hope of reconquering the
country despite the ten years of independence; and with the
outbreak of hostilities in the Mexican War. General Taylor
was relieved of command at Fort Smith and ordered to take
possession of the country to the Rio Grande. 1 *'

Meanwhile the town itself had boomed as a commercial point.
Extensive trade with the Indians attracted the attention of the
entire Southwest. 17 In 1849 Fort Smith became the jumping-off
place for numerous companies en route to the California gold
fields; and later, when John Butterfield launched his project
to unite the East and the West by means of an overland mail
line, Fort Smith became an important center on the stage
routes, 18 and began demanding railroad connection with the
settled areas west of the Mississippi River.

This increase of population on the border of the Indian coun-
try increased the business of the federal court. By an act ap-
proved March 3 T 1851, Congress divided Arkansas Jnto two
districts, the Western District embracing Henton. Washington*
Crawford, Franklin, Johnson, Madison, Carroll, Scott, ami Polk
counties, and "all that part of the Indian country within the
present judicial district of Arkansas/' ** The court seat was at
Van Buren, five miles down the river, and by virtue of the same,
act, the new court was presided over by Judge l>anit*t Kingo,
who was also judge of the Eastern District of Arkansas. By an
amendment approved March 27, 18S4, "offenders convicted in
the Western District of Arkansas and punishable by confine-
ment at hard labor in the penitentiary'* could In* sentenced by
the court "to the Penitentiary House in the Eastern District of
Arkansas the same as if the Penitentiary House was in the Went-

Land of the Six-Shooter 15

ern District of Arkansas"; and by the same amendment the
counties of Sevier and Sebastian, of which Fort Smith was the
county seat, were added to the Western District. 20

The court had tremendous power, but Judge Ringo made
little use of it. Already the echoes of civil war rolled close to
the border. In the Indian country the Five Tribes split into
factions, most of them joining the South. 21 The Federal troops
at Fort Smith found themselves sandwiched between a hand-
ful of Northern sympathizers and a large majority of Southern
advocates. A thousand regulars of the United States Army were
ordered dispatched to Fort Smith immediately to augment the
garrison. 22 On the same day, April 24, 1861, three thousand
state troops under the command of Colonel Solon Borland
seized and occupied the United States post, 23 and on May 6
Arkansas seceded from the Union. On September 3, 1863, the
fort was recaptured for the North by Brigadier General James
C. Blount and used as one of the centers from which Federal
troops wore sent to ravage the Indian country until the end
of hostilities. 24 In September, 1871, Fort Smith was again
abandoned, the soldiers removed to Fort Gibson, and the prop-
erty transferred from the War Department to control of the
Department of the Interior and placed in charge of the Marshal
for the Western District of Arkansas.

To what extent the United States court functioned during
the war is not known. Judge Ringo remained on the bench
until 1860, when, because of his sympathy with the South, he
resigned and turned over all court records to his clerk, John
B. Ogdcn, He was then appointed by President Davis of the
Confederacy as judge of the Confederate court established at
Helena, Arkansas. 20 In February, 1863, a company of Federal
soldiers raxded Van Buren. The courthouse was burned and the
records destroyed.

The court continued to function at Van Buren from 1865 to
1871, but most of the cases filed were for treason and confisca-
tion of enemy's property, and the majority of these were "nolle

16 LAW WEST OF FORT SMITH

prosequi" because of the general pardon issued by the Presi-
dent, On March 3, 1871, Congress approved an act moving the
offices of the judge, marshal, district attorney, and clerk of the
court to Fort Smith.- By the same act "so much of the act
of March 3, 1851, as gives the judge of the Eastern District of
Arkansas jurisdiction over the Western District of #;rid tate,
be and hereby is repealed." Henry J. Caldwll, then jiulne of
the Eastern District of Arkansas at Little Rock, was appointed
by President Grant as the first judge of the Western District
court for its exclusive use.

Judge Caldwell opened the first session of court in Fort Smith
in the second story of an old brick building *tt the corner of
Second and A streets in May, 1871. John Childers was in-
dicted for murder. His trial was begun, and was continued to
the November term as one of the fir.t casts on the November
docket. On the night of November 13 this building burned.
An adjournment was taken to November 14 at the Sebastian
County Circuit Court room, where a two-day session was held.
Marshal Logan H. Roots then received permission from the De-
partment of the Interior to open the large brick bull lint: within
the garrison enclosure that had been used a,s a soldiers' bar-
racks. In this building Childers' trial continued to its successful
conclusion, and he was sentenced as the first man to die inside
the walls of the abandoned military post 27

In 1872 Caldwell was succeeded by an officious young lawyer
named William Story, Story was a product of the *'earpe*thajr,'*
rule of the Reconstruction Period, and a man of little character,
who somehow wangled the appointment from President Grant*
He served less than fourteen months, and his tenure wan at-
tended by incompetency and corruption. Although court costs
for the period ran into the fabulous sum of $400,000, few cases
were ever tried. Marshal Roots was removed from office. Mar-
shal John Sarber, who succeeded Roots, made Httle effort to
Improve conditions. Few arrests were made. Certificates issued
witnesses and jurors for services went unpaid, and many who

Land of the Six-Shooter 17

were subpoenaed from distant points on the frontier were
forced to sell their personal effects to pay their expenses and
walk home. Often important witnesses who became disgusted
with the situation and left Fort Smith before their funds were
depleted were sent after by the court and thrown in jail. Dis-
trict Attorney Newton J. Temple was summoned to Washing-
ton as a witness before the Judiciary Committee, and although
no charges were made against him he was requested to resign.
A strong case of bribery, however, was made against Judge
Story, and in June, 1874, he resigned to avoid impeachment pro-
ceedings. 28 The vacancy caused by the resignation of Temple
was filled by President Grant appointing Judge William H. H.
Clayton of the Arkansas First Judicial Circuit; and upon in-
structions from Washington, 20 Judge Caldwell, from the East-
ern District of Arkansas, was ordered to come to Fort Smith
and preside over the court during the November term and until
the vacancy could be filled.

There was strong sentiment in Washington in favor of abol-
ishing the court at that time, but a new threat had thrust itself
into the Oklahoma situation.

The Five Tribes had been given the area for their exclusive
use at the time of their removal from east of the Mississippi,
and the Intercourse Law had been passed to insure them fed-
eral protection. In 1866, as penalty for their alliance with the
Confederacy, they were compelled to cede the western half of
their lands to the Plains tribes. 30 On these scattered reserva-
tions were settled the roving, half-savage Cheyenne and Arap-
aho, Wichita-Caddo, Kaw, Tonkawa, Ponca, Otoe-Missouria,
Pawnee, Iowa, Kickapoo, Sac and Fox, Potawatomie-Shawnee,
Osage, Kiowa, Comanche, and Apache.

Into this section also came the cattlemen. Already Texas
drovers had trailed more than a million longhorns across the
Indian country to railhead shipping points in Kansas. 81 The
Intercourse Law prohibited the grazing of livestock in the In-
dian country under penalty of a one-dollar fine per head of stock

18 LAW WEST OF FORT SMITH

so grazed; but the law was difficult to enforce, and the Five
Tribes had permitted this transient invasion when paid for the
right to graze these herds while getting them ready for market.
Many cattlemen had moved onto the free range in the central
part of the territory an area still held by the government and
not given to any tribe, called the a Unassigned Lands/'

In the eastern half of the country steel rails were fingering
south and west. The Atlantic and Pacific Railroad had crossed
the Missouri border and built as far as Vinita, Cherokee Na-
tion, in 1871. The Missouri, Kansas and Texas, with evident
expectation that large herds would be trailed through from
Texas rather than taken on the longer drives to shipping points
in central and western Kansas, had built to a point south of
Muskogee in the Creek Nation and constructed large cattle-
loading yards. Muskogee was a terminus settlement of tents,
shacks, and shanties where the vicious element of the country
congregated, as it did in the new towns that sprang up over-
night along the lines of the western railways built across the
Great Plains in Kansas and Nebraska during this same period,

J. H. Beadle, 3 - a Cincinnati newspaper correspondent, who
visited the "end of the track" of the Missouri- Kansas-Texas
Railway at Muskogee, reported the following conditions:

Of the town proper, the majority of the citizens were
with them a few whites of doubtful **rep*' and pt*rh;ip* a <i*an
Indians. The negroes were formerly slaves to the Indians, hut .slav-
ery here was never severe, and they are little more their nwn mas-
ters than they were before. They earned a precarious ^ubstetenre 1 ,
the women by washing and the men by teaming and chopping, and
all were sunk deep, deep in poverty and ignorance.

Here, as in Vinita, I saw no farms, no si^ns of cultivation. The
Indians live off the railroads, in the timber and along the jitrertw*,
Around the town, far as the eye can reach, extend fertile prairies
of rich green rivaling Ohio meadows in May, while five mi!***
northeast a heavy line of timber marks the course f the Arkansas,

Muscogee, or, if spelled as pronounced, MoOrkokee, h the ab-

Land of the Six-Shooter 19

original name for the tribe we call the Creeks, and, having de-
cided to thoroughly inspect these Indian sovereignties, and their
relations with the General Government, we begin with these:

"Brad Collins is on a big spree, ain't he?' 7

"You bet he's charginM"

"Killed anybody yet?"

"No, only had one fuss. Him and two other Cherokees went into
the car last night with cocked six-shooters and scared some eastern
fellers darned near to death."

"Mind the time he shot that ar marshal?"

"I reckon! Killed him right in front of this car. Shot him twice
afore. Fetched him dead that time. Then came in next day and
give himself up. Tuck him down to Fort Smith and turned him
loose in a little while. Lord, that court don't amount to nothin'."

"Marshal's got a good thing, though."

"I see you; best place to make money in the United States.
These deputies are the biggest rascals in the country. That court
is a disgrace to the American people. 'LI ruin us here yet."

Such was the conversation we heard our second morning at the
table of the dining-car in Muscogee. It was anything but encour-
aging to a man of peaceful proclivities. A few days after, I had
my first view of this somewhat notorious Brad Collins. I was sit-
ting in the tent of an old Cherokee woman, listening to her account
of the expulsion from the "old Nation in Geawgey" when shots
were heard not far off and an athletic, rosy-featured young man
came running by the tent with a pistol in his hand. The old woman
merely said, "Brad's got his shooter; there's a fuss some'ers,"
and went out for a look. It proved to be nothing but some freed-
men practicing on a stray hog, a wanderer from the Creek farms,
which they brought down after a dozen shots 1 Collins walked back
with a marked air of disappointment, muttering, "If I couldn't
hit a hog first shot, I'd throw away my pistol." And the old lady
entertained me by his story which has since been verified by others.
He is nearly white, an outcast from the Cherokee Nation, a smug-
gler of whiskey, a desperado and a dead shot. It is said that he
has been known to throw a pistol in the air, causing it to make a
lialf dozen turns, catch it as it fell, bring it instantly to level and
hit an apple at thirty paces. He is reported to be "quick on the

20 LAW WEST OF FORT SMITH

trigger" and that all the other "shootists" in the country have an
awe of him. He is known to have killed three men and was then
under bond of one thousand dollars to appear in the May term of
the Federal Court in Fort Smith for shooting at a United States
marshal with intent to kill. Many excuse him in the case where he
actually killed a marshal, as it was a private quarrel in which
both had sworn to "shoot on sight." Associated with him were a
dozen or more young ''White Cherokees," who were suspected of
being robbers, and known to be drunkards and gamblers. A dozen
such men can do the cause of Cherokee independence and nation-
ality more harm than all the Rosses and Downing* and their able
compeers can do it good. . . .

The records are simply horrible. During the few weeks that the
terminus and stage offices were at Muscogee and Gibson, sixteen
murders were committed at those two places, and, in a very short
time, five more were killed at the next terminus. One nun was
shot all to pieces just in front of the dining-car at Museonee, and
another had his throat cut at night, almost in the middle of the
town. . , . A few days after our arrival, a Texan reached Cana-
dian Station with the proceeds of a cattle sale. . . . He was seen
that night at 10 o'clock, drunk and generous with his money; a
few days after his body was washed ashore some miles clown the
Canadian. . . ,

Other terminus towns were Pryor Creek, Gibson Station, and
Perryville. While the records of all were bloody, Muskogoc
and Gibson Station were the worst. A half-dozen other railroad-
building projects had been launched by the government under
Indian opposition, and other terminus towns were in the making.

A great flood of whites connected with railroad-building
were entered under the classification of ''tradm, " 3JI Kven
hotel-keepers, livery-stable operators, and barbers were per-
mitted to carry on business In the country so long as they ob-
tained a federal license and paid a tax to the tribal treasuries,
and their presence was protected by the government. The
United States Indian Office held that legal white residents of
railroad towns could sell or bequeath the right of occupancy

Land of the Six-Shooter 21

to business or resident lots to other white men, and merchants
obtained business locations and opened stores supplying every-
thing from saddles, carbines, and wagon tongues to kitchen
knives, calico dresses, sunbonnets, tobacco, and snuff.

On the other hand any attempt to settle on Indian land, to
mark out boundaries, or make surveys was punishable by a
fine of $1000. No purchase of land from an Indian was valid,
and in addition a fine of $1000 was provided for such offenses.
Many avoided this law by leasing land from the Indian year
after year until they virtually possessed it. Others married In-
dian women. Thus they became members of the tribes and
entitled to all rights to hold land and engage in business as
though they themselves were of Indian blood.

This march of civilization and primitive condition of the
country attracted a horde of riffraff, the refuse of humanity. 34
There were no extradition laws effective by which a criminal
entering the area could be removed to answer for his offense
elsewhere, and the country became infested with hundreds of
fugitives from justice. Many of this type married among the
Indians, and the half-breed was reputed to be a product "in-
heriting the bad traits of both races and the good ones of
neither." There was also a large infusion of Negro blood
emanating from the slaves brought in by the Cherokees and
freed following the Civil War, and these mixed-bloods seemed
little disposed toward law and order.

Each tribe had its own sovereign government, modeled after
the government in Washington, with a legislative, an executive,
and a judicial branch. Their statute laws, courts, and tribal
procedure were much like the white man's courts. They had
Indian lawyers and judges. There were few intricacies and
technicalities, and they dispensed a grim but highly efficient
brand of aboriginal punishment. Each tribe had its groups of
Light Horse (Indian police), but their authority extended only
over Indian citizens. There was little safety for the whites who
were in the country legally. Every man protected his own prop-

22 LAW WEST OF FORT SMITH

erty and right to do business under tribal sanction. Sordid
crimes were committed upon lone travelers and against women
and children. Many of the outlaws banded together and ter-
rified the settlements, robbed the railroads and freight cara-
vans and stage lines, and made wild forays into the border
states of Texas, Kansas, and Missouri. And the situation had
grown doubly worse under Judge Story.

The Fort Smith New Era observed in IS 72: "The Indian
country is beginning to be a rough region." And the Denison
Journal stated: "A great many horses have disappeared from
northern Texas during the past six months and there is a rendez-
vous for horse thieves in the Indian nations. 7 ' 3ts The Atoka
Vindicator told of three men killed on a cattle trail through
the Chickasaw Nation when rustlers attempted to stampede a
herd of cattle, 30 and in a later issue of December 22 stated:
"Two men and two women were murdered on the prairie near
the coal mines; the prairie was set on fire and the bodies
severely burned. J) When the Oklahoma Star declared that "re-
ports of crime in the Indian territory are being greatly exag-
gerated," the Indian Progress published a "calendar of opera-
tions of the knife and pistol," listing fifteen murders, most of
them unsolved, some not even investigated, committed within
a* thirty-mile radius of the "peaceful precincts" of Caddo in
1873 and 1874. 3T "Add to the above sickening list the innumera-
ble minor crimes which harass, vex and disrupt society, for
which there is no law, no punishment, on the one side and no
safety or salvation on the other, and then talk about exaggera-
tion." <

The editor of Fort Smith's Western Independent summed up
the conditions as follows:

It is sickening to the heart to contemplate the increase of crime
in the Indian country. , It is time Congress took this matter
in hand and organized a territory, for if crime continues to increase
there so fast, a regiment of deputy marshab cannot arrest all the
murderers. 8 *

Land of the Six-Shooter 23
In a later issue he added:

We have lived in and around the Indian country since the spring
of 1834, but have never known such a state of terror. Now it is
murder throughout the length and breadth of the Indian country.
It has been the rendezvous of the vile and wicked from every-
where, an inviting field for murder and robbery because it is the
highway between Texas, Missouri, Kansas and Arkansas. . . .
Stealing horses is an everyday occurrence, and murder and rob-
bery seem to equal that sin. It is dangerous to travel alone where
villains from four quarters of the United States congregate to
murder, rob and steal. . . ,*

There was plenty of law to enforce. In fact the Intercourse
Law was so laden with tedious provisions for the protection of
the Indian that anything near perfect enforcement was impos-
sible. Death by hanging was the fixed punishment in capital
offenses. Arson carried a term of two to twenty-one years at
hard labor. Assault with a deadly weapon with intent to kill
or maim was punishable by imprisonment at hard labor for not
less than one and not more than five years. Horse-stealing car-
ried a maximum thousand-dollar fine and fifteen years 7 im-
prisonment. Obstructing railroads was punishable at hard la-
bor not to exceed twenty years, and if a person killed another
as the result of such obstruction, he could be prosecuted for mur-
der. Selling, bartering, or giving any ardent spirits or wines to
an Indian brought a five-hundred-dollar fine; a three-hundred-
dollar fine could be assessed for introducing or attempting to
introduce the same into the Indian country; and for operating
any distillery for the manufacture of any ardent spirits the fine
was $1000. Indian agents and other government officers were
authorized to search any suspects, persons, boats, or carriers of
any kind in order to prevent liquors being carried or manufac-
tured in the Indian country; and to enlist the aid of the popu-
lation in apprehending violators, the law provided that confis-
cated goods be divided equally between the informer and the

24 LAW WEST OF FORT SMITH

United States government. Notwithstanding this provision,
intoxicants flowed freely.

There were various other statutes. But for all the enforce-
ment given them during the tenure of William Story, they might
as well have applied to the jungles of Africa. It is estimated
that over half a hundred killings for which no arrests were
made were committed in the Indian country during his fourteen
months on the bench. People called the area "Robbers' Roost"
and "The Land of the Six-Shooter ." At the time of the hanging
of John Childers, crime was so rampant that the condition
gave rise to the phrase: "There is no Sunday west of St. Louis
no God west of Fort Smith.**

Ill

JUDGE PARKER

THESE CURRENT STATEMENTS WERE NOT EXAG-
gerated. By 1875, the year Isaac Charles Parker came to the
Fort Smith bench, there was no worse spawning place for
Satan's own on the western frontier,

Parker came from English ancestry. His father, Joseph
Parker, was a native of Maryland, though the family had orig-
inally settled in Massachusetts, In his early life he had mi-
grated to a farm in Ohio and there married Jane Shannon, a
native of Belmont County, where Parker was born in a log
cabin October IS, 1838.

Isaac was evidently destined to become a public officer. Six
of his grandfather's brothers had held official positions. One
great-uncle, Wilson L. Shannon, was twice governor of Ohio,
minister to Mexico, member of Congress, and finally governor
of Kansas. His father and mother were both respected for their
industry, strong domestic discipline, intellectual strength, but
mild and kindly dispositions. Both were "firm-believin 1 " Meth-
odists in a community where people had exceedingly strong
ideas and stood by them, and their ideals and strong traits of

25

26 LAW WEST OF FORT SMITH

character they passed along, in his formative years, to their
son Isaac. 1

When a lad, Parker could attend school only as work on his
father's farm permitted, but he managed to acquire a knowl-
edge of common school subjects, and through private study
became well versed in English literature. At seventeen he de-
cided upon becoming a lawyer and began teaching school as a
means of promoting this study. For four years he alternately
taught school and attended Barnesville Academy. The Kansas-
Nebraska question was the absorbing topic of the day, and
young Parker, fond of debate, took active part in its discussion.
In 1859, when he was twenty-one, he was admitted to the Ohio
bar. 3

Everyone in this year had the fever to go West, and that is
what Isaac did. He went down the Ohio River by packet,
caught a boat up the Missouri, and landed at St. Joseph. St.
Joseph was the gateway to the great western frontier. Trappers,
traders, scouts, gamblers, and the nondescript were assembled
here on the border. Ben Holladay was running a freight line
to the West. The first pony express riders were to start to Cali-
fornia from St. Joseph the next year. Later, the notorious outlaw
Jesse James was to be slain here by a member of his own
gang. It was a wild town on a wild frontier. A man with a Httle
legal knowledge was needed, and welcome. Parker liked the
place and hung up his shingle.

In this same year, after beginning the practice of law, he
met laughing, dark-eyed Mary OTooIc. She was born in St.
Joseph and graduated from the Convent of the Sacred Heart.
She was a Catholic and Parker a Protestant, which delayed but
did not prevent their marriage. 3 To thorn were born two sons,
Charles and James. Mary was devoted to Isaac and the chil-
dren, and Isaac was an affectionate and indulgent husband and
father. For fourteen years he practiced law in St. Joseph and
made friends and a professional reputation that soon led him
into a career of public service.

Judge Parker 27

From April, 1861, to April, 1864, he held two public posi-
tions. He served two terms as city attorney and was a corporal
in the state militia as assistant provost marshal at St. Joseph. 4
His early training and political convictions to some extent fitted
Parker for service in the South. He was a firm believer in the
dignity of the law and the idea that the wicked should suffer,
and until the outbreak of the Civil War he was an ardent Demo-
crat like his Uncle Bill Shannon. He was president of the first
Stephen A. Douglas club organized in Missouri and strongly
supported the "Little Giant" in his bid for the Presidency
against his fellow Illinoisan, Abraham Lincoln. 5 After Lincoln
was elected and the South seceded, Parker, a Northerner and
nonslaveholder, threw his support to Lincoln and used all his
political skill in keeping Missouri on the Northern side. He also
espoused the Republican principles and remained a strong ad-
herent to the party thereafter.

His reputation grew. In 1864, as Presidential elector, he
helped cast Missouri's vote for Lincoln for his second term.
In this same year Parker was elected state's attorney for the
Twelfth Judicial Circuit of Missouri. In November, 1868, he
was elected judge of the Twelfth Judicial Circuit for a term
of six years. He served in this position until 1870 when he was
elected representative to Congress from the Sixth Missouri
District, a position he was to fill until he accepted the appoint-
ment to the judgeship for the Western District of Arkansas. 6
At the time of his appointment, despite the redistricting of his
congressional area so that it contained a Democratic majority
of three thousand, Parker had been re-elected by a majority
of more than 143 votes and was serving his second term in the
Forty-third Congress. 7

Purposely or not, Parker laid the foundation here for be-
coming a federal judge. During his first term in Congress he
served as chairman of the Committee on Expenditures of the
Navy Department and was a member of the Committee on
Territories. He became deeply interested in the problem of

28 LAW WEST OF FORT SMITH

the American Indians and was sympathetic to their cause. His
second term afforded him even richer opportunities. He was
appointed to the Committee on Appropriations, a committee
of which every member was later to receive higher honors. 8 He
engineered the Indian Appropriation Bill of 1872, and spon-
sored a measure to organize a territorial government for the
Indian country in the Western District of Arkansas, which he
was unable to pass. 9 Little by little he became the champion of
the Indian and became known in Congress as "the Indian's best
friend."

That Parker's work pleased President Grant is evidenced
in the latter 's last annual message in 1872, in which he stated:

The policy which was adopted at the beginning of this Adminis-
tration with regard to the management of the Indians has been as
successful as its most ardent friends anticipated within so short a
time. It has reduced the expense of their management, decreased
their forays upon the white settlements, tended to give the largest
opportunity to the extension of the great railways through the
public domain, and the pushing of settlements into more remote
districts of the country, and at the same time improved the con-
dition of the Indians. 10

The President was concerned with conditions in the Indian
country, for he also said:

The subject of converting the so-called Indian Territory, south
of Kansas, into a home for the Indian, and erecting therein a ter-
ritorial form of government, is one of great importance, as a com-
plement of the existing Indian policy, ... A territorial govern-
ment should protect the Indians from the inroad of whites for a
term of years until they have become sufficiently advanced in the
arts and civilizations to guard their own rights, and from the dis-
posal of lands held by them for the same period, 11

In 1874, when Parker aspired for election to the United
States Senate, Missouri had gone Democratic and he could
not hope to win. Neither had he a chance, despite his own pop-

Judge Parker 29

ularity, of being re-elected to the House. However the Re-
publicans were in control at Washington, and Parker was en-
titled to party favors. When he retired from Congress in March,
1875, President Grant appointed him Chief Justice of the Ter-
ritory of Utah.

Before the appointment could be confirmed, however, Parker
wrote the President a letter. Utah was all right with him, but it
was far away. Furthermore, the job would be only temporary.
As soon as Utah became a state, territorial officers would cease
to function. On the other hand, there was a vacancy at Fort
Smith, closer to Parker's home. He had lived and served as
judge in a region not unlike Arkansas, and he knew better the
needs of the Indian country. He had done much for the In-
dians; look at his record in Congress in handling Indian affairs.

The Republican senators from Arkansas also requested that
he be appointed to the vacancy existing at Fort Smith. The
Republican party was in a decrepit condition in this section of
the Southwest. Arkansas was passing through the throes of re-
construction. It had witnessed, only a short time before, the
split in the Republican ranks in the state that had resulted in
the so-called Brooks-Baxter War. The tenure of William Story
had added scandal. What that bench needed was a fighting,
honest, incorruptible outsider who could regain respect for the
party, and who could not be identified with either side of the
factional split. 12

Upon receiving these requests, the President withdrew the
previous nomination and appointed Parker judge of the court
for the Western District of Arkansas at a salary of $3500 per
annum. This second appointment was promptly confirmed.
Parker became the youngest judge on the federal bench, he
then being only thirty-six years of age. 13

The judge and his wife and two children arrived at Fort
Smith by steamboat up the shallow, winding Arkansas on Sun-
day morning, May 2, 1875. Although its population numbered
less than twenty-five hundred, the town was listed as the chief

30 LAW WEST OF FORT SMITH

center of commerce and trade. River navigation then afforded
a low-cost means of transportation; wholesale warehouses had
been established, and the town was the distribution center for
a large region of the eastern Indian country and much of west-
ern Arkansas. So the Parkers expected something hi the way
of comfort and progress.

They found little of this. It was a town of the second class.
There were no paved streets, no sidewalks, no street lights, no
factories, no decent hotels or public schools; and the chief
means of travel were river craft and horse-drawn carriages. 14
The Little Rock and Fort Smith Railroad extended through to
the Indian country at a point across the river, but no bridge
spanned the river to connect town and depot. Ferryboats and
skiffs were the only means of conveying merchandise and
passengers from the depot to the city, until Jay Gould pro-
moted the construction of a combination railroad and wagon
bridge in 1891. 15 It already boasted of four newspapers ie serv-
ing its vast area, and thirty saloons which did a thriving busi-
ness with steamboat and railroad men, cowboys returning from
long Texas drives, and transient traffic to the great Southwest.
One bank, the First National, had been established in 1872 at
600 Garrison Avenue, where it stands today. Garrison Avenue,
the main street that ran from the central part of town to the
garrison of the old fort, was a wide, rutted roadway, a mass
of mud when it rained and a fog of dust that baffled animal
and pedestrian on days when the wind blew and the sun shone
hot, as it did the day the Parkers arrived.

Many had gathered at the docks, not especially to welcome
the newcomers but to get a good look at this new judge. They
saw a broad-shouldered man over six feet tall, weighing two
hundred pounds, with piercing blue eyes and tawny mustache
and goatee. They saw more than that. They noted his quick,
firm step and square-set jaw, and they guessed he was no
weakling. Beyond this, he was another appointment of Presi-
dent Grant, to be looked upon with considerable misgiving, and

Judge Parker 31

all the more so because he was an out-of-state man and had
been endorsed by the Republican senators who had been placed
in power by the carpetbagger regime that for years had denied
Arkansas its state government by force of arms. The term
"carpetbagger" was anathema in the ears and hearts of the
majority of these people present, and thinking men looked at
the judge and wondered if another mere carpetbagger had been
foisted upon them. In Mrs. Parker they saw a pleasant woman,
larger than average, and the two children were remarkably
handsome.

After Parker got his family settled, he took a look about town
and the garrison court and sized up the situation. Only then did
he realize that he had accepted one of the most difficult offices
in the country.

Story's weakness had allowed the court to slide into disre-
pute. People on the streets still openly criticized his regime and
the wasteful and inefficient methods of his court. Witnesses
were difficult to secure, and the good citizens of the court's juris-
diction had become strongly antagonistic toward its officers.
The bar itself was sullen and even openly rebellious, and the
old stockade of hewed logs standing on the Poteau bluffs that
was being used as a jail was jammed with prisoners who had
not been tried. 17

In addition, there was considerable distrust of Parker by
triumphant and righteously indignant Democrats because of his
switch to the Republican party. Local newspapers had ex-
pressed their disgust at Parker's congressional votes on bills
affecting sectional issues. 18 Despite the acknowledged success
of President Grant's Indian policy, in the Indian country they
felt that it had been a complete failure. 19 Parker also had
been a member of the Forty-third Congress that had attempted
to abolish the court for the Western District of Arkansas in a
revision session held in 1873 and 1874. The upshot of the
matter had been the passage of a redistricting act 20 that made
the jurisdiction consist of thirteen counties 21 in the western

32 LAW WEST OF FORT SMITH

and northwestern part of Arkansas, seventeen counties 22 in the
eastern and northeastern part of the state, and the Indian coun-
try leaving Clay County in the extreme northeastern corner,
and Lee County in the central east on the Mississippi, in the
Eastern District: a gerrymander to aid carpetbag control of
state government at the expense of costly and difficult function-
ing of an already corrupt and inefficient bench.

The spectacle of counties away in the east being made to con-
stitute a portion of the western district while other counties in
the western part of the state, one of them actually bordering the
Indian Territory, were retained in the eastern district, was a fraud
so palpable it smelled to Heaven and was the cause of much de-
served censure being heaped upon the heads of the statesmen who
secured the passage of the act by means best known to themselves
and their tools. 28

The newspapers gave the judge only guarded publicity.

"We have made a great mistake, Isaac," said Mary.

"No, Mary," the judge replied, "We are faced with a great
task. These people need us. We must not fail them/'

Failure would have meant bloodshed and fierce domination
by the criminal class. Parker had lived through the bloody war-
fare of William Clarke Quantrill, Bloody Bill Anderson, and
the Jameses and Youngers of western Missouri. He knew the
type of ruthless refugees into whose hands the Indian country
had been abandoned for years. He saw from the beginning that
politics must be set aside. Politics could play no hand in bring-
ing law and order to this frontier. The country's salvation, the
fate of this great jurisdiction, lay in the hands of these Arkansas
people. Only if he could have their help and cooperation in
tackling this "vast problem of crime" could he achieve his ideal,
"a great government, where liberty, regulated by law, would be
guaranteed to all, even the humblest,"

For clerk of the court he chose Stephen Wheeler, 24 a favorite
of these people and at that time clerk of the Federal Circuit

Judge Parker 33

Court at Fort Smith, a division of the Eighth Judicial Circuit.
Wheeler accepted the appointment and never left this position
until June, 1897, nearly a year after Parker's death* In the
twenty-two years he held the office he was to issue 18,877
writs for the arrest of persons charged with violations of every
federal statute written on the books. 25 As private bailiff, Parker
retained George S. Winston, private bailiff under both Caldwell
and Story. Winston always gave close attention to court affairs,
and he came to Parker with the unanimous recommendation of
the other court officers. Parker appointed J. A. Hammersly
court crier. A stern disciplinarian, Hammersly was of such
genial nature that everyone who had dealings with the court
liked him. He too remained in office until after Parker's death,
then retired to private life.

James F. Fagan was United States Marshal. He had been
appointed by Grant to succeed John Sarber during the clean
sweep begun with the resignation of Story in 1874, 20 Charley
Burns, head jailer under both Roots and Sarber, was retained
in that capacity, and George Maledon, a former Fort Smith
policeman and Sebastian County deputy sheriff, was placed
in charge of execution of condemned prisoners. Burns was to
hold his position, with the exception of one period of four years,
until February, 1882, and Maledon was to achieve national
notoriety comparable to Parker's.

Parker also got acquainted with his working partner and
chief prosecutor for the court, William H. H. Clayton. Behind
Clayton lay a brief but brilliant record as a soldier. He had
served as a lieutenant in Company H, 124th Pennsylvania In-
fantry, under Colonel Hawley, and fought in the battles of
South Mountain, Antietam, Burnside's Defeat at Fredericks-
burg, and Hooker's Battle of the Wilderness. Retiring from
service, he took a position as teacher of military tactics in
Village Green Seminary until the autumn of 1864, when he
resigned to join his brothers, Powell and John M. Clayton,
on their two-thousand-acre plantation below Pine Bluff on

34 LAW WEST OF FORT SMITH

the Arkansas, and to study law. He was admitted to the Arkan-
sas bar in 1871, and in March of the same year was appointed
prosecutor for the First Judicial Circuit of Arkansas. Two years
later he was appointed judge of the First Judicial Circuit,
which office he resigned in July, 1874, to accept the appoint-
ment from Grant as United States Attorney for the Western
District at Fort Smith. He was reappointed by President Hayes
in 1879, and except for four years, 1885 to 1890, when he
was succeeded by M. H. Sandel, an appointee of President
Cleveland, he was district attorney until 1893. In that year,
James H. Read was appointed his successor by Grover Cleve-
land, in his second term as President, and Read served in that
capacity until 1897. During his fourteen years of service Clay-
ton was to prosecute over ten thousand cases, convict eighty
men of murder, and see forty of them hanged. 27

Clayton's chief assistant was James Brizzolara, former city
attorney and mayor of Fort Smith for several years after the
town was incorporated. A prosecutor in his own right, Briz-
zolara fought beside Clayton for three terms. On June 12,
1878, he resigned to accept an appointment as United States
Commissioner for the Western District, which position he held
until it was abolished by an act of Congress in 1897.

The physical setting of the court was as grim as the work
it was to perform for the next twenty-one years. The two-story
brick building where John Childers had been convicted and
sentenced to death was partitioned for a court room, jury rooms,
and offices for clerks, attorneys, and the marshal. The base-
ment beneath the building, eight feet deep and partitioned by
a solid stone wall into two compartments each twenty-nine
by fifty-five feet, was converted into a jail, and the old log
prison on the Poteau abandoned. The small basement windows
provided the chief source of light and ventilation. Buckets
placed in the old basement chimneys answered the purpose of
toilets, while kerosene barrels cut in half were used for bath
tubs. Entrances to the two basements were made from the

Judge Parker 35

outside on either side of the porch facing southeast. Inside
each basement entrance was constructed a small vestibule,
eight by ten feet square, where prisoners could come from
the depths of the damp, foul-smelling dungeons to consult with
their attorneys during court sessions. 28

Judge Parker took up quarters in the stone commissary
building. Three hundred feet away, on the site formerly occu-
pied by the fort's powder magazine and within clear view of
his window, stood the gallows that already had launched John
Childers' soul into eternity. It was a strong structure of heavy
timbers. The I beam was a twelve-by-twelve supported by
similar timbers. The four traps were thirty inches wide and
twenty feet long, furnishing room for twelve men to stand side
by side and drop to their deaths simultaneously. Later the
structure was roofed and the back walled, so that executions
could proceed even in inclement weather.

The people wanted proof that Judge Parker wasn't a cor-
ruptionist, and they quickly got it. On May 10, only eight
days after his arrival at Fort Smith, he opened his first term
of court. Eighteen persons came before him charged with
murder and fifteen were convicted. Eight of these he sentenced
to die on the gallows on September 3. Before the date arrived,
however, one tried to escape and was brought down by the rifle
fire of George Maledon; and another, because of his youth, had
his sentence commuted to life imprisonment by the President
and was later pardoned.

The hanging of the remaining six called the attention of the
world to the court and its judge. Newspapermen came from
Little Rock, St. Louis, and Kansas City; many of the great
Eastern and Northern daily newspapers sent representatives to
cover the event. Even strangers from abroad, reading the an-
nouncement of the unusual "attraction," began filtering into
the city a week before the execution. Men and their families
living within forty to fifty miles of Fort Smith began pouring
into the city at daybreak. More than five thousand packed the

36 LAW WEST OF FORT SMITH

jail yard and clung from the tops of the old fort's stone walls
to view the major event.

At 9:30 A.M. they saw the six condemned felons, unshackled
in their cells, led by four local clergymen and surrounded by
a dozen well-armed guards, march from the grimy dungeon
jail onto the gallows. Three were white men, two Indians, and
one a Negro.

One of the white men, Daniel Evans, had murdered a nineteen-
year-old boy named William Seabolt and robbed him of a fine
horse and saddle. The youth's body had been found beside a
stream in the Creek Nation with a bullet in the head and the
feet without boots or shoes. Evans was convicted on the fact
that at the time of his trial he was wearing a pair of fancy, high-
heeled boots taken from the young man's body."

William Whittington had murdered an elderly man named
John Turner with whom he had associated and drunk whisky on
a Sunday. While riding back to the Chickasaw Nation from
across the Texas border, Whittington clubbed him from the
saddle, cut his throat with a bowie, and robbed him of $100.
He had been apprehended with the money in his pocket and
his knife still red with his victim's blood. In pronouncing judg-
ment on him, Judge Parker said:

The man you murdered was your friend. You spent most of the
Sabbath in his company. In an unsuspecting hour when he no
doubt was treating you as a trusted companion, you set upon him
unperceived and aimed a deadly weapon at his head and with the
fateful knife you brutally hacked his throat to pieces and with
these fatal instruments of death you mangled, you murdered your
victim.

But your guilt and your depravity did not stop there. Scarcely
had you committed the bloody deed before you entered upon the
commission of another crime. You converted to your person as
spoils of the murder your victim's money.

James Moore, the third white man, was a member of an
organized band of horse thieves raiding from the Missouri and

Judge Parker 37

Kansas borders to the western counties of Texas. He had
killed his eighth victim, Deputy Marshal William Spivey, in a
desperate flight from the posse that had captured him near Red
River. 30

One of the Indians, Smoker Mankiller, borrowed a Win-
chester of William Short, a neighbor, used the weapon to as-
sassinate him, then rode about the country openly boasting
of his treachery. Because he spoke and understood only Chero-
kee, his trial had consumed most of three days. When the jury
brought in its verdict of guilty, he commented gloomily:

"The law has come upon me."

"Yes," said Judge Parker sharply, "the sword of human jus-
tice is about to fall upon your guilty head."

The other Indian, Samuel Fooy, had slain and robbed a
young white man named John Emmit Neff, known as "The
Barefooted School Teacher." Neff had been carrying $250
earned from teaching in the Cherokee Nation, and Fooy had
shot him to secure the money. He hid the body near Tahlequah
on the Illinois River, and no trace of the victim was found until
the bones of his skeleton and a teacher's manual with the fly-
leaf still bearing his name and other memoranda were dis-
covered nearly a year later.

To Fooy, Parker said: "You have taken human life, you have
sent a soul unprepared to its Maker. You have set at defiance
God's law."

The crime of Edmund Campbell, the Negro, had been the
most senseless of all. He had gone to the farm of Lawson Ross
in the Choctaw Nation and slain both Ross and his mistress
in cold blood in revenge for a fancied insult. The apparent lack
of motive and the sheer brutality of the offense obviously con-
vinced Parker that the prisoner had no chance for commutation.

"Your fate is inevitable," he said. "Let me, therefore, beg
of you to fly to your Maker for that mercy and that pardon
which you cannot expect from mortals . . . and endeavor to
seize upon the salvation of His Cross."

38 LAW WEST OF FORT SMITH

To all of them, after commenting separately on their cases,
the judge said: "Farewell forever until the court and you and
all here today shall meet together in the general resurrection."

The six felons were seated on the rough plank bench along
the back of the gallows and their death warrants read to them
by Marshal Fagan, Mankiller's both in English and Cherokee.

Die brave; show no emotion; do not falter in the shadow
of the gallows. This was the code of the doomed men, the
example set them by John Childers.

Asked if he had any last words to say, handsome, blue-eyed
Daniel Evans stared defiantly at the marshal and shook his curly
brown head.

Tall, broad-shouldered James Moore, staring out over the
crowd, spoke in a loud, clear voice: "I have lived like a man,
and I will die like a man. ... I see men in this crowd who
are worse than I have ever been. I hope you make peace with
God before brought to my condition."

"I am as anxious to get out of this world as you are to see
me go," said Sam Fooy.

"I didn't shoot anybody," denied the short, stocky Campbell,
cool and calm. "I am innocent and ready to die."

Smoker Mankiller, glum-faced and dull-eyed, addressed the
crowd through his interpreter, and they leaned forward eagerly
to drink in every word. "I did not kill Short; I would admit it
if I did. I stand before you convicted by prejudice and false
testimony."

Lean, sallow-faced William Whittington had a wife and three
children in the Chickasaw Nation. He had become ill while
in jail awaiting execution, and this, coupled with his concern
for his family, had made him doubtful that he would be up to
making a speech on the scaffold. Accordingly, he had written
his message under the caption "How I Came to the Gallows/*
and it was read to the crowd by Reverend H. M, Granade, his
spiritual adviser:

Judge Parker 39

My father taught me to be honest and avoid those great sins
that disgrace the world, but he did not teach me to be religious. If
he had, I would have been a Christian from my boyhood. I was
just what my father taught me to be. He showed me how to drink
whiskey, and set me the example of getting drunk. I took to his
practice and this is what has brought me to the gallows. When I
got drunk I knew not what I was doing and so killed my best
friend. If it had been my brother it would have been the same.
If I had been blessed with the good instruction I have had since
I have been in prison I would be a good and happy man today
with my family. Oh! what will become of my poor wife and two
dear little boys, who are away out on Red River? I fear that peo-
ple will slight them, and compel them to go into low, bad company,
on account of the disgrace that I have brought upon them. But
I leave them in the hands of that gracious God in whom I have
learned to trust. ... Oh! that men would leave off drinking al-
together. And, O, parents, I send forth this dying warning to you
today, standing on the gallows: Train up your children the way
they should go. My father's example brought me to ruin. God save
us all! Farewell! Farewell!

The preliminaries over, there were prayers, the singing of
hymns, and farewells. Then the six felons were lined up on
the scaffold with their feet across the crack where the planks
forming the death trap came together. Their arms were bound
securely, the black hoods pulled over their faces shut out the
light forever, and George Maledon adjusted the nooses about
their necks.

"Jesus save me! " cried William Whittington.

The trap door fell, and the six men died at the end of ropes
with broken necks.

Reports in the press of the event shocked people through-
out the nation. "CooL DESTRUCTION OF Six HUMAN LIVES BY
LEGAL PROCESS I " screamed the headlines. In the minds of those
who read their pleas on the gallows and were unfamiliar with
the details of their atrocities, human sympathy naturally went

40 LAW WEST OF FORT SMITH

to the victims and caused the belief that "none but a heartless
judge could be so lacking in compassion as to decree such whole-
sale killing."

But what about the people of the Indian country who had
seen vicious bands running roughshod over lives and property?
J. W. Weaver, a reporter for the Western Independent and
valued correspondent of the New York Herald and other big
Eastern dailies, knew the frontier outlaw better than any man
of his day. He aptly expressed their sentiments in closing his
report of the execution.

"These terrible scenes have made a lasting impression." While
"these men were young and in the full prime of strength, and
should have been active and useful members of society, the
pride of their friends, the staff of their aged parents . . . so-
ciety, through the stern mandates of the law, has thus consigned
them to death and exterminated them from the face of the
earth." Why? "Because they are preying wolves upon the
lives and property of their fellow beings, unfit to live and unsafe
to remain at large." This fact "should not be lost in the ex-
citement and glare of the terrible exhibition, nor forgotten in
the morbid curiosity which absorbs the mind in witnessing an
event so rare and tragical."

To those prone to criticize Parker's first session on the bench,
he replied: "If criticism is due, it should be the system, not the
man whose duty lies under it. . . "

Those active in their arrest and prosecution were relieved
that the desperadoes were gone. In his appointments Judge
Parker had showed from the start that he did not intend to use
his new office as a steppingstone to something else. In ordering
these executions, he gave evidence of his unbounded energy
and fearlessness in enforcing the laws and his determination
to bring order and decency to this "Godless" frontier.

IV

*BRING THEM IN ALIVE-OR
DEAD!'

ONE OF JUDGE PARKER'S EARLY MOVES WAS TO Ap-
point two hundred deputy marshals to police the area over
which he had jurisdiction and bring in the lawbreakers. He

reopened investigations into many old, unsolved murders and
other felonies, issued warrants for the arrests of the most
notorious brigands and their gangs, and told these marshals:

"Bring them in alive or dead!"

Thus began, in the language of the judge, "a fight between
the court and the lawless element of that country" that con-
tinued unabated for twenty-one years, 1

It was a big order. Two hundred men were a mere handful
to cover an area of 74,000 square miles, where the outlaws
knew every trail and hideout and the deputies had little pro-
tection other than their own discretion and skill in serving these
processes of law. A year's imprisonment was the only penalty
attached to resisting a federal officer. "To a man who will risk
his life to avoid arrest," commented the attorney general, "a
yearns confinement is a small matter." 2

41

42 LAW WEST OF FORT SMITH

In the north of the Territory were the Boston Mountains, and
to the south were the Winding Stair and the Kiamichi, while scat-
tered between were many hills and canebrakes which gave ready
refuge to those 'on scout.' Game was still plentiful and water and
firewood could be found in every hollow. There was a border class
of confederates who gave assistance and warning to the criminals,
even though they were not active members of the gang. 3

The problem was made even more difficult by the practice of
some of the settlements to furnish known criminals "a sort of
asylum in exchange for immunity"; often whole gangs of out-
laws "bore themselves so quietly among the citizens of the
town while their lurid escapades filled the border press." *
Here also was a large class of citizens who "hated marshals
and hampered them in every possible turn." 5 Decent citizens
were afraid to let a marshal stay overnight or otherwise ac-
commodate him for fear of reprisals the next day. "Many a
wanton, unprovoked and unpunished murder had shown that
there was a real basis for that fear." e

Add to this the fact that the marshals often had to transport
desperate prisoners to Fort Smith from distances of two and
three hundred miles; that, traveling by wagon and horseback,
with no bridges crossing the streams and no open paths or
roads, their progress was slow; that frequently they were am-
bushed by criminal gangs in attempts to deliver a fellow
criminal, and fierce gun fights sometimes resulted in death to
the officer and the escape of prisoners and it is not hard to
appreciate the dangers these men faced.

For these outlaws had committed themselves to crime and
fled to the Indian country for the protection and opportunity
it afforded to further satiate their keen appetites, Marshals
were "intruders" in their criminal empire, and they connived
and banded together to prevent them from performing their
duty. From the prairies in the wild country to the west rose
high knobs or hills, which they used as lookout points. Lights
at night or flashing signals in the daytime, relayed from one

"Bring Them in Alive or Dead!" 43
knob to another, often warned fugitives miles away that officers
were in a certain locality, told the size of their force, and even
gave their identity. 7 Many a deputy had to conceal his identity
and sometimes associate with his quarry for weeks to obtain
enough evidence to insure a conviction and to await an oppor-
tunity to make a successful capture.

Take the case of Deputy Marshal H. D. Fannin, who went
after Jason Labreu. Labreu was a Creole cowboy wanted for
killings in Texas and New Orleans. With his carefree smile and
flashing eyes, he captivated pretty Leona Devere, the daughter
of a prominent western Arkansas farmer. The two went for a
walk in the meadow in search of wild flowers, and the girl was
not seen again until her body was found face down in a small
brook, badly decomposed and brutally ravished.

Fannin traced Labreu to the Chickasaw Nation, where he
located him working for a wealthy farmer named Jack Crow.
The next day Fannin, dressed as a farm hand, appeared at
Crow's farm and hired out to assist with the spring planting.
He was put to work in the fields beside Labreu.

The killer's dark eyes hardened when he saw the new hand.
He did not even appear relieved by the fact that Fannin was
unarmed. Fannin had concealed his revolver and handcuffs
at the house in his saddlebags. Labreu was a dead shot; he car-
ried his Winchester strapped to his back while he worked,
and Fannin realized his only chance lay In catching him at a
disadvantage.

For weeks they worked and ate together and slept in the
same bed at night, but still Labreu did not trust him and re-
mained tense and watchful. One night as they lay in the lean-to
where the farm hands slept, Fannin had an idea.

"I had to kill him," he muttered, as though talking in his
sleep. "He caught me stealin 3 his cattle. I can't ever go back to
Texas!"

The next day in the field Fannin noted that, although Labreu
continued to study him through slitted eyes, the fugitive had

44 LAW WEST OF FORT SMITH

relaxed and was more friendly. Late in the evening Labreu
confided to him: "I've killed a dozen men myself, but I was
never bothered in my sleep until I killed a girl."

"I shot a woman once in Dallas/' Fannin lied, "but she didn't
die."

Labreu grew moody. "I drowned the one I killed," he said.

Then followed the revolting details of how he had lured
Leona Devere into the meadow, crammed a handkerchief into
her mouth to muffle her cries, and raped her; and how 7 after-
ward, as she sat on the grass sobbing, covering her face with
her hands in shame and begging him to marry her, he had
dragged her into the brook and held her face beneath the water
until she had ceased to struggle.

The confession was half the battle, but Fannin still had to
arrest Labreu. During the next several days he thought of a
dozen plans and discarded all of them. Labreu kept his Win-
chester ready while he worked, ate, and slept, and in all his
waking moments continued to keep Fannin under close scru-
tiny. The marshal could think of no way to throw him off guard.

One morning they went to the field as usual. The day was
sultry hot. The killer washed his face and hands for the noon
meal, but this time, instead of leaning his rifle against his thigh
as he did usually, Labreu leaned it against the door casing.

Fannin waited his turn in line behind him. Labreu emptied
the basin, took the towel from a nail, and lifted it to his bearded
face. Fannin acted in a split second, and the cowboy found
himself covered with his own riile. Looking into the muzzle of
the weapon and the grim face of the man who held it, he knew
he had been outwitted. He lifted his hands and calmly allowed
Crow, whom Fannin directed to get the cuffs from his saddle-
bags, to clamp the irons about his wrists.

The deputy and his prisoner had been in the saddle several
days and were within a few hours ride of Fort Smith when they
were forced to stop at a railroad crossing for an approaching
train, Labreu was still handcuffed, and a lead rope from Fanning

"Bring Them in Alive or Dead!" 45
saddle was fastened to his horse's bridle. The deputy dis-
mounted to tighten a cinch, and Labreu saw his chance. The
horses, restless and frightened by the train, responded to the
outlaw's savage kicks. His mount reared and snapped the lead
rope, and Fannin 's horse plunged away, leaving him on foot.
His rifle was in the saddle boot, but he quickly drew his six-
shooter and fired. Labreu rolled from the saddle. When Fannin
reached his side, the outlaw was dead.

It took quick thinking and quick shooting to stop these kill-
ers. Fannin had avenged the death of Leona Devere, but he
had forfeited all fees and expenses he might have collected. A
deputy had to arrest his man and deliver him safely to the
court or serve the papers in lesser cases or he could collect
no fees or mileage. Nor could he leave the corpse unattended. If
the man he was forced to kill had no friends or relatives to dis-
pose of the body, the deputy had to bury it at his own ex-
pense. It cost Fannin sixty dollars to bury Jason Labreu.

An incredible feature of the heroic work done by these dep-
uty marshals is the pecuniary compensation they received at
the hands of the government. There were no fixed salaries for
deputies. A deputy depended on fees, mileage, and such rewards
as came his way. He received six cents a mile when out on official
business all expenses of transportation and board to be paid
by him out of these six cents if proper receipts were obtained,
and obtaining receipts was practically an impossibility in the
majority of localities in the Indian country.

For arresting a suspected or guilty party at the risk of his
own life and becoming the marked victim of the arrested out-
law^ friends, he received the munificent sum of two dollars!
And this was the same whether he was arresting a whisky ped-
dler, or horse thief, or a desperado like Jason Labreu, even
when it meant pursuing the murderer hundreds of miles, hiring
a posse or buying information from his own pocket, and then
having to take him in a bloody fight.

If he returned with his two-dollar prisoner in charge, he was

46 LAW WEST OF FORT SMITH

allowed ten cents to feed and transport himself, pay the assist-
ants he might need, and meet the expense of the prisoner him-
self. If he was sent out to subpoena witnesses, he received six
cents a mile only one way, fifty cents for contacting the first
witness, and thirty-seven cents for each additional. He received
no fees at all if he failed to locate the witnesses, which was often
the case.

This was not all. When the accounts were rendered, the
marshal deducted 35 per cent of the gross amount as his fee.
Then the bill was sent to Washington and sometimes allowed !
In the meantime, the deputy had to advance all moneys spent,
borrowing from friends if he had no money in the bank, very
happy indeed if he finally got in hard cash just half of what was
legitimately due him.

Everything considered, the average deputy seldom made
$500 a year unless he was lucky enough to pick up a reward.
The government usually offered rewards in cases of mail rob-
bery and the murder of federal employees, but the deputies were
not entitled to these on the grounds that they were already paid
fees by the government to capture these criminals.

This was a cause of much dissatisfaction among the officers,
for the rewards often amounted to more than a whole year's in-
come, as compared with the $30 to $40 they were able to collect
under the fee-mileage setup. The marshals always kept an eye
on the rewards offered by local and state authorities , private in-
dividuals, and the railroad and express companies. They could,
and did, collect many of these.

Parker fought the inequity of the system. "The services of
reliable, efficient, trustworthy men are indispensable," he told
grand juries and Washington. "To secure such services the
pay must be adequate. . . "

Congress considered the pay sufficient for well-populated
sections; where transportation facilities were good, the marshals
could sleep in hotels and eat in restaurants, the people willing
to render all assistance necessary.

"Bring Them in Alive or Dead!" 47

"But conditions in the Indian country," argued Parker, "are
exactly in the reverse. The facilities for transportation are
meager and primitive. The country is sparsely settled. The
deputy cannot rely on assistance from anyone, and the Indian
people, by nature uncommunicative and averse to report and
prosecute crimes, are rendered all the more so by fear of bodily
injury and death at the hands of criminals."

Despite his appeals, there was little change as the years
passed. In 1884 a bill was presented in Congress to pay deputy
marshals salaries instead of fees "to attract good men who will
know just what they can make and prevent trumped up cases
and the wholesale subpoena of witnesses for fees whether they
know anything about the cases or not"; but it was opposed
on the grounds of "inequality of service to be performed by
the different men." 8

Scores of deputies quit to accept positions as detectives for
express and railroad companies or to enter civilian pursuits.
Why so many stayed so long is amazing.

Perhaps it was that Judge Parker, with a desire for law and
order, inspired them with his zeal. The officers had to feed their
families, of course, but in no other pursuit was there such great
adventure and opportunity to serve the cause of justice.

"Without these men," Parker said time and again, "I could
not hold court a single day." And in his later years, when he
talked much of his record on the bench, he gave a great deal
of credit to the deputy marshals, particularly the sixty-five of
them who gave their lives in the field in the cause of peace and
decency.

Too many of the outlaws were like John Billee. Billee was
so ferocious that he had to be kept chained in the corner of
his cell even after he was lodged in the Fort Smith jail. He
knew no fear. When a neighbor ordered him off his farm, Billee
told him he would return and kill him. The neighbor armed
himself with a rifle and hid in some bushes. As Billee rode back,
he fired. The shot missed the outlaw. There was no time for a

48 LAW WEST OF FORT SMITH

second. Billee wheeled his horse and plunged head on into the
brush, shooting his neighbor dead.

Deputies Will Ayers, James Wilkerson, and Perry DuVal
started to Fort Smith with Billee and four other prisoners in
custody. At a deserted, two-roomed shack near Muskogee they
stopped to spend the night. Ayers bedded down in the front
room with three of the prisoners chained to him and together.
DuVal slept in the same room with Ayers, with Billee in cus-
tody. Wilkerson and the other prisoner shared the back room
of the cabin.

In the middle of the night Billee slipped one of his handcuffs.
He seized DuVal's revolver and shot the officer in the head.
He then fired at Ayers, who was resting on his back, wounding
him in the right nipple. Awakened by the shots, Wilkerson
rolled to a sitting position. Billee shot him through the back
and kidneys. Ayers grappled the outlaw, and while Billee strug-
gled to free his arm for another shot, Wilkerson raised himself
on an elbow, leveled his own weapon, and put a bullet in his
body. Fortunately, Billee survived his wound. The marshals
were able to collect their fees, and Billee was hanged on the
Fort Smith gallows.

A writ was issued for Sheppard Busby by the United States
Commissioner at Fort Smith, charging him with living m
adultery with two young Indian women in the Cherokee Na-
tion, and placed in the hands of Deputy Marshal Barney Con-
nelley, who resided in that district at Vinita. ConncIIcy was a
highly respected citizen and a good officer. He had arrested
scores of violators and was a man of extreme caution. But as
he approached Busby's home the morning of August 19, 1S9I,
to serve the warrant, the latter opened fire on him, killing him
instantly. Busby was hanged for his crime April 27, 1S92.

It was cold-blooded murder again in the case of William Irwin.
Invin was a widower with two children to support. He had been
a mail-carrier before he tried his hand at law enforcement. He

"Bring Them in Alive or Dead!" 49
quickly became a fearless, top-flight officer. For years he ar-
rested murderers and whisky peddlers. Then on April 12, 1886,
he was shot to death from ambush by two members of the
Felix Griffin gang as he was bringing Griffin himself in from the
Choctaw Nation. Investigation fastened the crime on Jack
Spaniard and Frank Palmer, and the government offered a re-
ward of $500 for each of the slayers. Frank Palmer fled the
territory and was never seen again, but Spaniard was taken
prisoner in 1888 and executed at Judge Parker's order. Griffin
was recaptured, and while out on bail was killed stealing horses.

Popular, friendly Addison Beck was another deputy with a
steady stream of arrests to his credit, but in 1883 he and his
guard, Lewis Merritt, went out after two ruffians named John
Bart and Johnson Jacks, and neither officer came back alive.
Bart got away, but Jacks was wounded in the fight and died
after his capture. So Beck's murder went only partially avenged.

It was even worse in 1885, when Deputy Marshal Jim Guy
and his posse went up against the Tom Pink-Jim Lee gang. Guy
and three of his men were killed and the rest of the posse
routed. Deputy Marshal Heck Thomas later tracked down
and killed Tom Pink and Jim Lee, but the battle went on
record as one of the heaviest losses sustained by the government
in any one fight with outlaws during the Judge Parker era.

Many times the marshals came out of a fight with only flesh
wounds, or gunpowder-burned faces, or unscathed. But these
were "just breaks of luck." A deputy called on Bill Pigeon, a
Cherokee outlaw wanted for the slaying of Deputy Jim Rich-
ardson, and found him at home. He was met at the door with a
fusillade from a six-shooter, and when this was backed up by
a Winchester, the marshal declared himself ready to retire. A
bullet passed through his hat and grazed his scalp, with no
more serious results. The marshal was then informed by Pigeon
that he could always be found at home, and that he could come
back whenever he liked. But when the deputy returned a few

50 LAW WEST OP FORT SMITH

hours later with a posse, Pigeon had retreated into the fastness
of the Flint Hills, and he was never found.

Buck Anderson had just got out of the Texas penitentiary
when he stole a herd of horses in Crawford County, Arkansas,
and drove them to his hide-out on Lee's Creek in the Cherokee
Nation. A posse went to his house one evening. Anderson saw
them and stepped out the door, gun in hand, saying: "Stop,
Fve killed one man and can kill another. All I want is one
shot." He fired, missed his man and before he could fire again
the posse riddled him.

Deputy Marshal Scott Bruner had a warrant for the arrest
of an outlaw who had robbed a woman of $6.00, and when her
two-year-old child came crying to its mother, had knocked it
in the head with his six-shooter. Bruner came up on the fugi-
tive sitting on his horse with his Winchester in his hands rest-
ing on the toe of his boot. Bruner ordered him to throw up his
hands, and the outlaw jerked up his rifle and fired. His bullet
struck Bruner in the side just under the heart, knocking him
down. The outlaw whirled to ride away, but the deputy drew
his six-shooter. His first shot tore through the man's hat brim.
His second bullet struck him between the shoulder blades,
killing him instantly. It passed through his body and struck the
horse in the head, killing the horse. Bruner always hated it
"because the horse got killed."

Doctor J. C. Bland, a white man, married a Creek citizen,
which gave him the right to fence land in the Creek Nation. His
ranch lay on the Cimarron in the heart of the Indian county,
and he was having a hard time holding his own against hor.se
thieves. One night he lost a big bunch of mares, and Deputy
Marshals Frank Jones, John McCann, Bill Tilghman, and
Heck Bruner trailed them to the Shelly brothers' ranch on Carr
Creek east of Choteau. At daylight they went up to the ranch
house and told the Shellys to come out and surrender. The an-
swer came immediately: "We'll shoot it out, but we Ye staying
inside."

"Bring Them in Alive or Dead!" 51
The officers took up positions, then told them to send out
their women and children. As this was being done Deputy Mc-
Cann accidentally showed himself, and the Shellys opened fire,
wounding him in the shoulder. The officers returned the fire,
pouring a steady stream of lead into the house for several min-
utes, but the Shellys didn't come out. Realizing that the outlaws
were well barricaded and that the battle might last for days,
Jones got hold of a wagon, took the front gear off, and loaded
it with hay. Moving it around to the side of the house that had
no windows, he ran it up against the wall and set the hay on
fire, then hurried back to wait with his companions. In a few
minutes the weather-beaten shack was in flames, and out came
the Shellys and surrendered.

The papers of the time were replete with items of this kind:

Deputy Marshal Mershon and posse attempted to arrest Jim
Webb near Bywater's store, in the Arbuckle Mountains, on the
15th inst., which resulted in a running fight, in which Webb was
wounded and died that night. Webb was boss of Washington's
ranch. He was charged with killing a negro for burning the range
last winter.*

Important Arrest. Dan Thompson, a full blood Creek, was
lodged in jail Wednesday by Chub Mclntosh, who arrested him
the day previous at his home ten miles from Eufaula. Thompson
is one of the men charged with the murder of Deputy Marshal
John Phillips and posse, for whom the government offers a reward
of $500 each. 10

Wesley Barnett, the murderer of Deputy Marshal John Phillips
is reported by the Indian Journal as having stormed the Creek
capital with a crowd and shot twenty-six bullet holes through the
cupola of the building. Armed men guarded the town afterwards
to prevent similar raids. Wesley is worth $500 to anyone who
will lodge him in the U. S. jail here. 11

News reached the Marshal's office Tuesday that Wesley Barnett,
for whom there was a reward of $500 was killed. The following
letter to Marshal Carroll explains how it was done:

52 LAW WEST OF FORT SMITH

"EUFAULA, C. N., JAN. 15, 1889
"Hon. JOHN CARROLL, U. S. MAR.

"We killed Wesley Barnett Saturday night last about 10 o'clock,
near Okmulgee. The circumstances of the killing are about as
follows: I sent Salmon north of the Arkansas river with three
men, then I went up North Fork with three more, sending my
posse, William Sevier, up Deep Fork, accompanied by John
Barnell and Wallace McNack. They stopped at John Porters to
stay over night. About the hour mentioned above Wesley Barnett
and Wiley Bear came in on them and commenced shooting. In the
fight Wesley was killed. \Ve turned his body over to friends.
Will be in as soon as we can. The waters are very high.

"Yours, etc.
"D. V. RUSK,
"U. S. Dcp. Mar."

We would infer from the above that Wiley Bear escaped . . .
but it is only a question of time when all of them will either be
arrested or killed off. 13

There was a bloody fight between Deputy Marshal E. L. Drake
and two outlaws named William Miller and William Uostetter.
Both of the outlaws were killed and the marshal mortally
wounded. The fight occurred on Deep Fork beyond Sapulpa. 1 *

Deputy Marshal Heck Bruner, with D. Douthit and Wood
B rimer, posse, got in from the Territory Sunday night with Sam
Rogers, who they captured near White Oak Station, not far from
Vinita, Saturday night. Rogers was suffering from a wound in
the hips, inflicted by the officers in trying to arrest him. His
partner, Ralph Hedrick, was killed in the fight. Hcdrick and
Rogers are supposed to be two of the men who recently robbed
the bank at Mound City, Kansas. 14

And in the Indian Journal of December 14, 1894:

A posse composed of U. S. Marshal Xeal and five other
marshals, attempted to surround the house of Kizzie Lola, about
12 miles south of Eufaula, in order to capture a band of outlaws;
the outlaws escaped, shooting Deputy Marshal LeForce, who
later died.

"Bring Them in Alive or Dead!" S3
It would appear that the marshals had all their difficulties
with robbers, horse thieves and murderers. On the contrary,
more than half their battles were with liquor-law violators:

Deputy Marshal Chilton arrested two men near here last week
charged with dealing in the ardent; and pressed "Wild Bill" a
noted whiskey peddler, so close that he deserted his outfit and
took to the brush. 15

On Tuesday, Deputy Marshals Tyner Hughes and West Harris,
with a posse of three men, went to arrest James Hart and Henry
Ewing in San Bois county, Choctaw Nation, on a charge of in-
troducing and selling whiskey in the Nation. They came upon
them about four miles above Blaine, when a fight ensued in
which many shots were fired and Hart was severely, if not fatally,
wounded. Hart and Ewing were brought in late Wednesday night,
and as we go to press the wounded man is in a critical condition,
and may be dead before this paper reaches the public. 16

From the Arkansas side of the federal court district:

Deputy Dave Rusk came in from Montgomery county Monday
with Carter Markham, Mathew Pervine and Joseph Pepper, at-
tached witnesses in the Cogburn moonshine whiskey case, and
J. D. Holli field, a Montgomery county fanner, charged with sell-
ing moonshine whiskey. Mr. Rusk says the five men who partici-
pated in the murder of Deputy U. S. Marshal Trammell have all
been arrested and released by a magistrate, as no witnesses ap-
peared against them, and no one was present to prosecute. Their
examination was a mere farce, and during its progress they were
surrounded by their friends all well armed, who would have
released them had they been bound over. Rusk had writs for all
of them on charges of illicit distilling but did not go to the trial,
as the sheriff had warned him that it would be extremely dan-
gerous, as he would likely be killed. He then requested the sheriff
to turn over to him Fayette and Franklin Cogburn, two of the
alleged murderers, whom he had in custody, and assist him in
getting them out of the country. The sheriff sent him word that
he could not get a force large enough to take them out, as it
would be impossible, and they were released* 17

54 LAW WEST OF FORT SMITH

And there was a wide range of items such as these:

Thomas Jefferson, a white man, was lodged in jail on Friday
by Deputy George Williams, charged with threatening to kill
G. W. Dotson. It appears that Jefferson seduced Mrs. Dotson,
and the husband claims he accomplished his object by giving her
doctored candy, after which he run Dotson from the house by
threatening to kill him, and took full possession. 18

J. M. McDougal was lodged in jail Wednesday by Tyner
Hughes, charged with attempt to murder. In this case it is set
forth that McDougal and wife separated at McAlester. McDougal
went to a friend and gave him some powders requesting that he
not tell who sent them, but to say they were love powders and
to take them, at the same time assuring his friend that such they
were, and he wanted his wife to take them so she would love him.
The friend delivered the powders, but told who sent them, where*
upon the woman sent them to a physician who pronounced them
strychnine. 19

The most dangerous outlaw the marshals had to go after was
Ned Christie. A full-blooded Cherokee, Christie had served as
one of the tribe's executive councilors, but soon found the life
of bandit, horse thief, whisky peddler, and killer more excit-
ing. He fought a greater number of battles with government
officers than any other outlaw in the history of Judge Parker's
court.

For months Deputy Marshals Heck Bruner and Barney Con-
nelley trailed him without success. Deputies Heck Thomas and
L. P. Isabel cornered him in 1889 and shot him in the face,
but Christie escaped after shooting Isabel in the shoulder, crip-
pling him for life. In another battle with Deputies William
Bouden, Milo Creekmore, David Rusk, and Charlie Copdand
in the Cherokee Nation, Christie wounded three of the officers
and escaped unscathed. Finally he ambushed one of Parker's
deputies, likable Dan Maples, as the officer was crossing a
stream on a foot log, and fled to the hills.

The marshals learned that he was holed up in a log fort at

"Bring Them in Alive or Dead!" 55
the mouth of a narrow canyon called Rabbit Trap, fourteen
miles from Tahlequah. About daylight on the morning of No-
vember 2, 1892, the place was surrounded by sixteen of the
bravest men under Marshal Jacob Yoes' command, led by Heck
Bruner and Captain G. S. White.

The presence of the officers was unknown to the outlaw un-
til about sunrise, when Arch Wolf, a comrade of Christie's,
started for the spring. They ordered him to surrender; he opened
fire and ran into the house, and the battle began.

The fort stood high against a steep wall, commanding every
approach up the canyon. One man with a rifle could have held
off a posse indefinitely. The battle raged into the afternoon with-
out results. Several deputies had holes burned in their cloth-
ing by Christie's bullets. Christie was a dead shot, and none were
so foolish as to rush the outlaw's hot Winchester.

Bruner reported the situation to Marshal Yoes at Fort Smith.
Yoes, determined to take the killer at any cost, assumed per-
sonal command of the venture. He dispatched Bruner and
Paden Tolbert to Coffeyville, where they obtained a three-
pound cannon. Hauling the cannon in a wagon, the party re-
turned to the scene.

They set up the cannon and opened fire. They hurled thirty
balls into the fort, but they were too far away, and Christie's
rifle kept them from moving the cannon in where the balls could
take effect. The marshals had to try something else.

They had also brought along some dynamite. A half-dozen
six-inch sticks were bound together. While the rest of the posse
covered him with a heavy barrage from both sides of the
canyon, Deputy Copeland placed the bomb and returned to
safety.

The charge exploded, blowing down part of the house and
setting fire to the ruins. While the blaze was at its fiercest,
Christie emerged from under the floor and started to run. A
dozen shots brought him down, and the officers turned their
attention to the burning building. Wolf did not show, and it was

56 LAW WEST OF FORT SMITH

assumed that he had been wounded and burned to death. Later
they learned he had escaped in the confusion of the battle, and
he was caught and sent to the penitentiary for assault with
intent to kill. Christie's body was placed on a slab and hauled
to Fort Smith for official identification, then given to relatives
for burial.

Intrepid fighting men, these marshals, picked for their ability
to handle tough assignments. They always got their man, but
they made no corps 7 boast of it as did the Northwest Mounted
Police and the Texas Rangers.

The test was not always being able to bring in the criminal
dead or alive. The prosecution needed evidence to convict, and
often a man-sized share of courage was needed to collect it.
Such a case involved Deputy Marshal John Spencer.

Martin Joseph, a Texas horse thief, murdered Bud Stephen?,
raped and murdered his sixteen-year-old bride, and threw their
bodies into a deep crevice at the back of a cave on top of the
Arbuckle Mountains. Months later, Deputy Marshal J. H,
Mershon apprehended Joseph, obtained a confession, and took
him to Fort Smith, where the details of his crime were placed
before District Attorney Clayton. Clayton wanted evidence to
corroborate Joseph's confession. He told Marshal Yoes: "We
ought to have the bones of the victims."

"We'll get them," Yoes promised.

A party was dispatched to the deep hole in the mountain.
Spencer volunteered to go down and bring up the bones. The
others tied a rope about his waist and lowered him into the
dusky pit.

What Spencer didn't know was that a den of rattlesnakes
had set up housekeeping in the bones of the two victims. As
his feet touched the bottom there was a sudden rattling and
hissing. In the dim light Spencer saw the skeletons crawling
with the mass of scaly replies.

"For God's sake, pull me up quick!'* he screamed.

A moment later he stood back on the floor of the cave, white-

"Bring Them in Alive or Dead!" 57
faced and trembling. His nerves soon steadied, however. Then,
with a lantern in one hand and his revolver in the other, he
asked to be lowered into the pit a second time. Taking advan-
tage of the blinding effects of the light upon the reptiles, he
aimed at the shining eyes of the largest and nearest snake as
it reared to strike, and fired.

The explosion extinguished the lantern. The snake, threshing
about in wild death agony, coiled itself about his arms and
neck.

Spencer kept his nerve. He called for his companions to
throw down a sack. The noise of the explosion had frightened
the rest of the snakes from the skeletons, and Spencer was not
again molested.

Quickly he gathered the bones, including the clothing of the
victims, then signaled to be pulled to the top. When he appeared
on the rim with one end of the huge rattler wrapped about his
arms and the other around his neck, his companions almost let
him fall back into the pit. The bones and clothing were pro-
duced during the trial before Judge Parker, and Martin Joseph
died on the gallows.

As time went on and the officers solved crimes and brought
in more and more prisoners, their daring and morale was ap-
preciated by the law-abiding citizens of the district, and they
were often commended for their tireless efforts. Once, when
appropriations were short and fees delayed but their work
continued, the observing editor of the Elevator commented,
"The failure of Congress to appropriate funds for the payments
of the marshals seems to have little effect in this district." 20
Again, on July 30, 1880, he wrote: "The office of the marshal
in other places is kind of a matter of form, but the marshal's
office in the western district of Arkansas is very different on
account of its vast territory and the immense amount of busi-
ness transacted." Even as early as 1875, less than six months
after Judge Parker had taken his place on the bench, the Ok-
lahoma Star was moved to say:

58 LAW WEST OF FORT SMITH

The relation this country bears to the United States government
makes the marshals office for the Western District of Arkansas of
the most vital importance to us. In fact we are dependent solely
upon it for the preservation of our lives and our property. But
for this protection no honest man could live in the Territory.
The present incumbent, James F. Pagan, was raised on our
border, and is well known to most of our people, and we will
venture to say that nine-tenths of them would rather see him
in the position than any man that could be appointed. Before
he came into office we had been imposed upon to such an extent
that our best citizens had come to look upon U. S. deputy marshals
as a greater curse than the thieves and murderers that infested
the country, and of the two evils they preferred taking their
chances among the latter. 21

Most of the seven marshals 22 appointed by Presidents during
Parker's term merited and preserved general respect. The De-
partment of Justice gave Parker free rein. Judge Story had
given the department a bad name and caused all sorts of diffi-
culty. It was such a relief to have things going smoothly again
that they said nothing when Parker influenced appointments.
As a judge, Parker was reluctant to interfere in such matters,
but when Fagan left office in 1876, Parker wrote a letter to
the White House recommending D. P. Upham for the job. "As
fine a man as ever I saw," Parker said. "He is honored by all
except Ku Klux, thieves, gamblers, drunkards and liars." In
1880, when President Rutherford B. Hayes gave the office to
Valentine Dell, Parker described the latter as t iil natured,
irascible and impractical ... a friend of bad and reckless men
who only want an opportunity to filch money from the govern-
ment." A few months later he wrote Hayes: u lf we had the
strong arm of an able and honest and effective Marsha! to pro-
tect us, we could enforce the law and make its power felt. . . ,
In the interest of justice and right, peace and security, send me
a man who can and will do his duty."

"Bring Them in Alive or Dead/" 59

When Hayes failed to respond, Parker went after Dell's scalp.
He was aided by District Attorney Clayton and the prosecutor's
brother, Powell Clayton, United States Senator and Republican
boss of Arkansas. Dell was dismissed February 20, 1882.

Dell was succeeded by Judge Thomas Boles. Boles was a
native of Arkansas. He had been judge of the Fifth Judicial
District from 1865 to 1868, served three terms in Congress, and
was receiver of the land office at Dardenelle at the time of his
appointment as marshal. An able lawyer, kind and sociable in
private and public life, and reliable, he became an exceedingly
popular officer. He was succeeded by John Carroll, 23 appointed
under Cleveland's first administration, in 1886; in 1889 he be-
came a candidate for reappointment, and a petition circulated
in his behalf bore 16,000 signatures. But for the sake of party
harmony, Boles withdrew and Jacob Yoes was given the place
early in 1890.

Parker had trouble with some of the deputies, too. None were
angels. Many were bullies. Nearly all were coarse-talking, un-
sentimental individuals. The personal characters of some of his
most famous officers would scarcely bear careful scrutiny. But
the judge winked at that sort of thing as long as they served the
cause of justice in this haven of the worst hellions on earth. As
Parker aptly put it, he was "obliged to take such material for
deputies as proved efficient in serving the process of this
court. ..." A coward could be highly moral, but "he could not
serve as a marshal in the Indian country."

But when the time came that he could no longer wink at a
deputy, Parker never hesitated to let his influence be felt. In
1896 he sentenced Deputy Bee Mellon to three years in the peni-
tentiary because he "did more shooting than was justified in an
attempt to make an arrest." Before this, in 1892, when Deputy
Marshal Tucker went on a drunken spree at "Chippy Hill,"
a section of South McAlester devoted to prostitution, and shot
and killed an inmate of one of the houses, Lulu May, who re-

60 LAW WEST OF FORT SMITH

fused him admittance, Parker sentenced him to hang. 24 But
President Cleveland exercised his clemency and the sentence
was commuted to life.

There were deliberate efforts to discredit these officers in the
eyes of Parker and the public in general. In 1877 Anna Jones,
a female inmate of the federal jail, publicly announced that
Jailer Pierce had many times attacked her person. BrougM be-
fore District Attorney Clayton for questioning, she churned that
she had complained about the "slop" fed the prisoners and
Jailer Pierce had taken her to his private office and as-wed her
that better food could be had if she would "cooperate." "I
wanted to eat," said Anna, but she had received no belter food,
and she had been forced to "cooperate repeatedly thereafter."
Pierce wasn't the only one, she said. After her rele TO from jail,
she claimed she had been "approached" by the other guards, the
deputies, and even the United States Marshal.

"She came to this jail a common prostitute," commented
Marshal Upham, "and she is now following here in Fort Smith
the usual vocation of her class."

"A common strumpet," said District Attorney Clayton. "The
lowest of her kind."

The case was aired before Judge Parker. Anna Jones was
proved "an adroit liar," and Jailer Pierce exonerated.

A petition came to Judge Parker bearing the stemUires of
fifty persons asking for the removal of a deputy marshal be-
cause he was partial to a certain class. The deputy was in the
Indian country on assignment at the time, but when he returned,
Parker called him in and showed him the petition.

"What do you know about this?" the judge asked.

The marshal read the paper. When he had finished, he looked
up with a smile. "Judge," he replied, "I brought in sixteen
prisoners this trip. Four of them are signers of this petition,
all arrested on writs from this court."

The four men in question were arraigned, all pleaded guilty

"Bring Them in Alive or Dead!" 61
to their different crimes, and all were sentenced to long terms
in prison.

Parker appreciated the noteworthy work of these deputies
and their loyal assistance to the bench. They took desperate
risks, and Parker saw that they were rewarded by seeing that
the men whom they arrested were tried promptly, "with a large
percentage of convictions." 25

On April 21, 1876, less than a year after he opened his first
term of court, five murderers were marched onto the gallows
and plunged through the trap together. 26

"The crowd was as great, if not greater, than at any previous
execution. . . . Those present must have numbered between
six and seven thousand. . . ." 2T

On September 8, 1876, four men stood on the scaffold and
were hanged as a quartet. 28 In 1877 ten more convictions were
had for crimes of murder and rape, and ten offenders sentenced
to the rope. Two of these hanged together on December 20,
1878. 2D In the spring term of 1879, four were sentenced to
hang. One died in jail while awaiting his turn to model the
fatal necktie, and another had his sentence commuted by the
President. The remaining duet went to their deaths on August
29. 30 Nine murderers were tried in the August term, 1881, and
on September 9, five of them marched onto the gallows and died
simultaneously. 31 In 1882 three were sentenced to die for mur-
der. One received a commutation to life imprisonment, and two
were executed in single hangings occurring June 30, 1882, and
April 13, 1883. 32 Another trio was hanged on June 29, 1883. 8 *
Three more died on the gallows together July 11, 1884 , 84 and
another single hanging occurred April 17, 1885. 35 Eight were
convicted of murder in 1885, all sentenced to die on April 23.
However, the scaffold was cheated of its largest scheduled set of
victims. One died in jail, five were commuted to life, and the
two remaining completed the first raw, red decade of Judge
Parker's tenure by falling through the trap together on June 26.**

62 LAW WEST OF FORT SMITH

A draft of official records for this ten-year period shows that,
in addition, 466 were convicted for assault with intent to kill;
1190 for selling liquor in the Indian country; 97 for illicit dis-
tilling; 124 for violating the internal revenue laws; 65 for vio-
lating the postal laws; 50 for counterfeiting; 24 for arson;
48 for perjury; 32 for bigamy; 27 for conspiracy to commit
crimes; 59 for stealing government property; 24 for resisting
arrest, and 149 for miscellaneous offenses. 37 Witnesses, always
numbering into the hundreds, reached three thousand at one
term of court, and witness fees, never less than $41,000 an-
nually during this period, reached at one time the staggering
figure of $13 7,240. 38

The coolness that attended Judge Parker's arrival at Fort
Smith gave way to enthusiastic support. The Elevator said:
"The Judge is giving entire satisfaction to both the bar and
the public. He brought with him ... a higher appreciation of
his duties than his predecessor."

"Confidence in the court has been restored," wrote the editor
of the Herald. "Moneys appropriated are being properly ap-
plied. . . . The court and the several departments are being
run in perfect order and harmony."

A later issue described Parker as "a man of coolness, calm-
ness and great deliberation."

The Independent, his greatest political critic in the begin-
ning, was most responsive to "this almost revolutionary im-
provement."

Even a "stroke of conscience" seemed to have effected Con-
gress. By an act approved January 31, 1877, Section 533 of
the Revised Statutes was amended to read:

"The Western District of Arkansas shall consist of the counties
of Benton, Washington, Crawford, Sebastian, Scott, Polk, Sevier,
Little River, Howard, Montgomery, Yell, Logan, Franklin, Joha-
son, Madison, Newton, Carroll, Boone and Marion, and the
country lying west of Missouri and Arkansas known as the Indian

"Bring Them in Alive or Dead!" 63
Territory. The Eastern District of Arkansas shall include the
residue of the state." 39

Thus the portion of Arkansas attached to the Western Dis-
trict consisted of nineteen counties in compact form, reaching
across the state from the north to a line even with the southern
boundary of the Indian country. Although Congress had re-
duced the jurisdiction of the Fort Smith court, they "gave evi-
dence of common sense ... as commended them to all fair
minded people . . . and the work of the gerrymanders was
destroyed." 40

The position of the marshals strengthened. "A certain esprit
de corps grew up, and it is clear that this was due to the fact
that these officers realized that their efforts were not in vain." 41
They no longer thought of themselves as mere deputies, but
as "The Men Who Rode for Parker."

Day after day, year after year, they ranged over this vast
region of wooded hills, long-grass pastures, and creek bottoms,
past lonely houses and ranches and wigwams and through the
raw prairie towns. And with them rolled the wagon of the law
to transport their captives. A sort of prison caravan, for usually
it was composed of a chuck wagon and extra mules and horses.

Camping at night on high ground under the stars. Eating
with Winchesters across their knees. A summons here, an arrest
there, gathering a load of prisoners, and starting the long,
dangerous haul back to Fort Smith. Watching the captives
every moment, appraising them, trying to read their thoughts
as they gazed into the campfire or carelessly ate their beans or
stared somberly across the prairie where some of them would
never ride again. Guarding them while they snored in their
blankets, chained to a tree or the wheels of the wagon.

The arrival at Fort Smith was a social event. They ferried
their wagon and prisoners across the river on a boat, and the
people came down to the docks and gathered on the sidewalks
to see who they had brought in this time. Sometimes they would

64 LAW WEST OF FORT SMITH

string out behind the caravan, and follow it through the streets
on foot and on horseback like a circus. At the jail the prisoners
would push their faces against the bars and hoot and yell while
the wagon discharged its cargo. Then the guards took over.
The new prisoners were marched through the main gate, and
the gate closed behind them. The journey was over. The horses
were returned to the men who rented them, the wagon went to
a local shop for repairs, and the deputies filed claims for their
pay. Some went to the saloons to relax from the strain of the
trip. Most of them went home to their families.

How many outlaws did they bring to justice? The records
show thousands. They brought them in six and sixteen and
twenty-six at a time. On one occasion Deputy Marshal Heck
Thomas and his posse surprised Parker with thirty-two prison-
ers in a single group, nine of whom were found guilty of crimes
punishable by death.

The basement jail to which they first brought their prisoners
became overcrowded and vile-smelling of food, sweat, tobacco
juice, and urine. It was cold in the winter, damp in the sum-
mer, and in all seasons poorly ventilated. Segregation was
impossible, and young and old, innocent and guilty crowded to-
gether with desperadoes and sadistic murderers upon the un-
pitying flagstone floors. The sick slept with the well, and despite
the efforts of physicians, who were in charge constantly, several
men died and others left jail physical wrecks. The guards
fought the odor and disease with whitewash and lime, but theirs
too was a losing battle. Vermin infested its precincts until its
very existence was a veritable curse upon the government that
harbored it and a disgrace even to the rough border town in
which it existed. Members of grand juries hardly dared to
enter, yet for too many years human beings though many of
them the most debased characters on earth were allowed to
be thrown into this hellhole of filth. 42

Judge Parker fought hard to remedy these conditions. So
did the marshal and the district attorney. As early as 1883

"Bring Them in Alive or Deadl" 65
the Attorney General called the matter to the attention of Con-
gress. 43 But nothing was done. The Indian country, which fur-
nished most of the jail's prisoners, had no representative in
Congress. Most of the congressmen from Arkansas were Demo-
crats, and they did little to help Parker, a Republican, get aid
from Washington.

Finally, in 1885, the Elevator took up Judge Parker's cause
and strongly attacked the congressman from the Fort Smith
district:

Our representative should be the exponent and advocate of
those places which originate and ask something for themselves.
. . . Fort Smith, for ten years, has anxiously sought a penitentiary
and a U. S. jail . . . and asks for them. . . . Such a building is
a public necessity, and the present one a disgrace to a civilized
people. . . . Our representative need not be afraid to get up a
bill and fight it through. We say we have not the least doubt that
having at his back a DEMOCRATIC House, should he place this
matter before them in his bold, impressive manner and with the
gift of the English language that does him credit, and said to
them that this court is for the whole Indian Territory, and every
member of the House was as much interested in the Indian
Territory as he was, and called on all to support it, not as an
Arkansas but as a National matter, it must pass.* 4

And the Attorney General again told Congress:

This place, dignified by the title United States jail ... in
which white, black and Indian prisoners are indiscriminately
huddled . . . is a standing reproach. It is under the supervision
of the United States Marshal. This officer has done the best he
could with the materials at hand, and it is not his fault that he
is a nominal warden of the most miserable prison probably in the
whole country. 48

After repeated complaints from the officials, the newspapers,
and humane agencies, money was appropriated and construc-
tion begun on a new, three-story brick jail in 1886. 48 Upon

66 LAW WEST OF FORT SMITH

completion in 1889, the men prisoners were taken out of the
basement and the women brought from their little brick shack
on the courthouse yard, and all confined in the new quarters.
The lower floor was designated "Murderers' Row/' and used
for prisoners charged with severe crimes. The second floor was
used for prisoners charged with burglary, robbery, larceny,
assault, and similar offenses; and on the top floor were confined
persons charged with selling or introducing whisky into the In-
dian country and all federal prisoners convicted by the United
States court and sentenced to imprisonment not to exceed one
year. Each floor consisted of twenty-four cells, five by eight
feet in size and equipped with two iron cots, one above the
other, so as to accommodate two prisoners each; but before
many years passed of Judge Parker's second decade on the
bench, this new jail too became overflowing.

V

FIVE HUNDRED MILES TO
FORT SMITH

"OYEZ! OYEZ! THE HONORABLE DISTRICT COURT OF
the United States for the Western District of Arkansas, having
criminal jurisdiction of the Indian Territory, is now in ses-
sion," rolled the voice of Court Crier J. G. Hammersly.

"The court is ready for the first case," announced Judge
Parker.

"The United States versus Peter House," called the clerk.
"Charge, bigamy."

A bigamy case was nothing to excite even passing interest in
the days when murder was commonplace. At the moment there
were 204 prisoners in the federal jail, 69 of them charged with
capital offenses. Attorneys took advantage of the opportunity
to make last-minute preparations for these more important
cases scheduled for the November term beginning Judge Par-
ker's second ten years on the bench. The judge adjusted his
spectacles and scanned the list of more than a score of ter-
rorists as he waited for the defendant to be brought in.

67

68 LAW WEST OF FORT SMITH

Finally a thin-faced, balding man with beady eyes, heavily
manacled, was led to the bar. Parker looked over his glasses
at a most unprepossessing specimen of manhood.

"Who is this?" he asked. "He's not the man. This is a bigamy
case. This man never caught a gal in his life."

The judge was right. Peter House, who was up for the crime,
was a handsome man of fine physical build; the bailiff, through
error, had brought in Lee Galcatcher, who faced a charge of
perjury.

Later House was brought in, found guilty of the offense, and
sentenced to five years in prison.

This was one of the lighter moments in this most unique
court in the world. Despite his stern bearing on the bench,
Judge Parker was a congenial man and enjoyed a harmless joke
better than anybody.

One day an aged Irishman, charged with selling whisky in
the Indian country, was arraigned before Parker.

"Plaze, yer honor, an' may I plade me own case?" he in-
quired.

"Certainly/ 7 replied the judge.

"Then," said Pat, "I plade guilty."

The plea brought a twinkle to Judge Parker's eye, and drew
for Pat the lowest sentence the court could fix.

On another occasion a son of Erin who answered to the
name of Mike was up for a minor offense. He provoked the
court no end by consistently interrupting the testimony of the
witnesses for the prosecution in an attempt to correct state-
ments in his favor. Parker ordered him down several times
without success. In an exasperated moment, the judge brought
his gavel down hard.

"Sit down, Mike! " he commanded. "You will get justice."

"Be jazzes, an' that's what I'm scared of/' Mike replied.

The proceedings were suspended until the court and attorneys
recovered from a spell of laughter.

In another case a witness for the prosecution was testifying

Five Hundred Miles to Fort Smithfa
to the law-abiding and peaceful character of the complainant.
The defense attorney, a shrewd lawyer, sought to lay the predi-
cate for impeaching the witness's testimony.

"As a matter of fact," said the attorney on cross-examination,
"you know that the complainant is quarrelsome and that he
has a lot of trouble with his neighbors. 7 '

"Yes," admitted the witness.

"Don't you know that he gets drunk and whips his wife and
that last spring he almost beat his young son to death and that
nearly every time he comes to town he gets in jail?"

"That is true," the witness replied.

"What!" boomed the attorney. "You know all this about the
complainant and you swear on your oath that his reputation
is good in your community?"

"Yes," stated the witness earnestly. "It takes more than that
to give a man a bad reputation up where I come from."

A smile broke the judicial seriousness of Judge Parker's face,
but in a moment those grave lines had returned, and he re-
marked firmly:

"That indicates the class of persons this court has to contend
with."

A brief but exciting scene was witnessed by more than a hun-
dred persons attending the trial of Mat Music, a Negro charged
with raping a seven-year-old child at Caddo, Chickasaw Na-
tion, and transmitting to her a venereal disease. The case came
up in the July term of court, and the summer heat was terrific.
The sun beat down on the roof of the old barracks courtroom.
Every window in the place was open to admit any breath of
air.

The trial proceeded slowly. Attorneys and jurors wiped
perspiration. Mat Music, strong, powerfully built, and quick
as a cat, conceived a plan to escape. In the rear and to the right
of the defendant were three large windows, but half a dozen
marshals occupied positions near these. In front of him Judge
Parker sat at his cherry-paneled desk, which was nearly five

70 LAW WEST OF FORT SMITH

feet high. Behind Parker a large window opened into the jail
yard. In front of the desk stood a wide, flat-topped table stacked
with court exhibits, law books, and papers. By springing onto
this he could fling himself over the judge's bench and leap
through the window before the marshals could swing into ac-
tion. They would not dare fire at him for fear of hitting the
judge. So reasoned Mat Music.

While the defense idly argued a point of law, the Negro
lurched suddenly onto the table. But Judge Parker was watch-
ing. As Music topped the desk and executed the leap to clear
Parker's head, the judge shot out his arm and hooked it around
the Negro's thick neck. The force of the Negro's jump carried
both men to the floor. Music fought to free himself, but Parker
held him until the marshals had him shackled hand and foot.

Afterward, the trial proceeded with great alacrity.

Although Parker "frequently gave vent to humor on the
bench" l or occasionally aided in preventing the escape of a
prisoner "he never hesitated to impose sentences designed to
make the Indian Territory safe for law-abiding citizens of all
races." 2 The juries of his court came from the Arkansas side
of the district, and the people of the Indian country often com-
plained that they were "being tried by foreigners." 3 Another
matter of concern was the pay of jurors $2.00 per day. They
felt that only shiftless and incompetent men did jury service.
Judge Parker influenced the grand jury to recommend that the
pay be raised to $3.00 per day "to attract jurors industrious
enough to have other occupations." 4 These juries were praised
for the way they upheld the law. They were usually composed
of high-caliber men, and the judge was "very solicitous of their
welfare." But it was more, perhaps, because Parker never
hesitated to let them know when he wanted a conviction. In
his charge to his first jury he plainly expressed his conception
of the court's judicial duties.

"The fault does not lie with juries," he said. "Juries are will-
ing to do their duty, if they know that the judge wants the law
enforced. . . ."

Five Hundred Miles to Fort Smith 71

At the close of one murder trial there was some belief among
court attaches that there might be an acquittal. The accused was
a young man of considerable influence. He had been ably de-
fended, and throughout the proceedings his mother and sister
had sat clasped in each other's arms, moaning. Parker was
thoroughly convinced of the defendant's guilt, but he obviously
shared the doubt of the other court officers. After he had given
the jury its instructions, he said: "Retire, gentlemen, and do
your duty! 9

When the jury returned to the box and the foreman announced
that they had found the defendant "guilty as charged of murder
in the first degree," Parker turned to the manager of the hotel
where the jury ate its meals. "Have you a good dinner prepared
for these men?" The hotel man nodded. "Then," Judge Parker
continued, "take them over and give it to them. They deserve
it!"

Parker went further than this and often advised and influ-
enced government witnesses. "Such a reign of terror exists
among them," he said, "that they are afraid to talk in open
court. . . ."

Once while examining a witness on the stand, the judge asked:
"Don't you know you are swearing a lie?"

"Yes," the man replied.

Parker leaned down from the bench. "Don't you know what
it means to swear an oath?" he snapped. "Do you know the
penalties for contempt and perjury in this court?"

"Yes," grunted the witness. "But if I swear against the de-
fendant, his pals will give me plenty when I get home."

Parker could not guarantee them much protection, but he
let these witnesses know he was on their side. If they were
wronged as the result of testimony they had given, and that
was the evidence in the case, they would get justice.

"But," argued the witness, "what good will that do me if I'm
dead?"

On the other hand, when witnesses for the defense were
caught in a lie or contradiction, Parker upbraided them

72 LAW WEST OF FORT SMITH

severely. Under the judge's vigorous attack and threats to cite
them for contempt, many became confused and bewildered or
forgot completely the testimony they had been "coached" to
give. Too often in the Fort Smith court the defense was sus-
tained by perjury. 5 The average killer, when arrested, would
boast of his deeds; but when he came to trial, he was always
"the most respectable, peaceful man in his community" while
his victim was a quarrelsome individual, or lying witnesses were
ready to prove an alibi.

In these interrogations District Attorney Clayton worked
closely with Parker. Trying to prosecute lawbreakers under
the same difficult circumstances, he, like Parker, often scouted
legal procedure and precedents. Not that he was not skilled in
marshaling evidence and using it to the best advantage; most
of the cases coming before the court were based on circum-
stantial evidence, and time and again Clayton surprised the
courtroom throngs with the strength of the case he was able to
present. But he angered defense witnesses so that they could
mot testify effectively, and tried to drag out any bad record
that had a bearing upon their association with the defendant.
And Judge Parker reciprocated by ruling that such questions
were "competent to test reputation." If the defense resorted to
the same methods, Clayton would object, and Parker usually
advised the defense to "stick to the case being tried."

Defeated attorneys damned Clayton as "unfair." "The judge
had no right to help the prosecution, " they cried. But those
close to the Fort Smith court replied: "The judge and his
prosecutor behaved no more badly than the defendant's law-
yers."

Parker said: "It is our desire, and our duty, to uncover per-
jury and falsehood and bring to justice false accusers or false
witnesses, wherever we can find them, whether they are upon
the side of the government or against it."

Parker and Clayton were not so severe in dealing with de-
fendants in doubtful cases. Many times they were willing to

Five Hundred Miles to Fort Smith 73
reduce a charge of murder to manslaughter. In crimes not
involving homicide, Parker often handed down less than the
maximum penalty and occasionally suspended sentences. His.
keen sense of justice made him a stickier for the right when
evidence showed the defendant was innocent.

A posse of marshals had gone to a Creek Indian lease near
Checotah in search of a man wanted for train robbery in Texas,,
Fearing their quarry might escape before they could obtain
a search warrant, they invaded the defendant's home just before
daylight, and the latter, not knowing they were officers of the
law, shot and killed a Cherokee Indian policeman, Jim Naked-
head. 6 Judge Parker instructed the jury to acquit the defendant,
of the murder charge; that he had a right to resist such an attack
by officers who had no warrant for his arrest or to enter his
home. When the verdict of "not guilty" was given, a roar of
applause filled the courtroom. Men yelled and threw their hats
in the air. To the judge this was sacrilege. He rapped the bench
with his gravel. When order had been restored, his dark eyes
flashed and his deep basso, with powerful dignity, rolled to
every corner of the room.

"Justice is justice not chivalry!"

He then ordered the arrest of every man who had participated
in the outburst and fined each $50.

Although his court properly held only criminal jurisdiction
over the Indian country, several civil cases came to Parker in
this period. In 1875 he decided two important cases involv-
ing Indian citizenship. Did a white man who married a Cherokee
Indian woman in the Cherokee Nation, and was recognized as
a Cherokee citizen, become thereby an Indian in law and sub-
ject to the jurisdiction of the Cherokee courts where he and a
Cherokee Indian were parties to an offense? No, Parker said,
a white man who married a Cherokee woman and thereby be-
came a citizen of the Cherokee Nation was still under the juris-
diction of the United States court. How about the Plains tribes
having reservations in the Indian Territory? Were they subject

74 LAW WEST OF FORT SMITH

to the jurisdiction of the United States court for offenses commit-
ted against the person or property of another Indian? Yes, ruled
Parker; though living in the Indian Territory in their tribal
capacity, they were nevertheless citizens of the United States,
and "if an Ottawa should steal the horse of another Ottawa in
the Ottawa Nation, in the Indian Territory, the United States
court has sole and exclusive jurisdiction."

In the early 1880's he made three famous decisions of far-
reaching consequence affecting the title of Indian lands, which
brought him both praise and censure from the Indians. In
1882 he held that the people of the territory were without re-
course against timber thieves who came from across the border.
There was no law on the subject, the lands of the territory were
not public lands within the meaning of the law, and he, there-
fore, had no jurisdiction. The Cherokees loudly protested. 7
' Later, when Congress passed the right of way for the South-
ern and Kansas railroad company through the Cherokee Na-
tion pursuant to the Act of July 25, 1866,* the Cherokees in-
stituted a suit in the United States court in the nature of an
injunction. Congress had no power to grant such right of way,
they claimed. The right of eminent domain was not in the
United States when the enjoyment of whatever right or priv-
ilege flowed from it was to be had in the Cherokee Nation.
Such right was in the nation alone. Railroad company attorneys
filed a demurrer on grounds that the bill was without equity
because the right of eminent domain was in the United States
and not the Cherokee Nation. No more important question had
been placed before the courts of the country for years. Said
Judge Parker:

The Cherokee Nation is not ... sovereign, for its dependence
on the United States forbids the idea of the existence of sover-
eignty in the Cherokee Nation as against the United States. If not
sovereign it cannot as against the United States have the right of
eminent domain as an inherent right. It cannot have it as it has

Five Hundred Miles to Fort Smith 7$
not been granted it by the government, as the government cannot
grant away the sovereign powers of the people. . . .

He sustained the demurrer, refused the injunction, and dis-
missed the bill. 9 The Cherokees again protested. His decision
opened the way for the construction of railroads through tribal
domains.

It was different in the case of trespass upon their lands by
the crusading frontiersman David L. Payne and his land-
hungry followers, the "Boomers." The unsettled lands in the
center of the Indian country had been earmarked for the In-
dians since 1866, but never assigned by the government. Payne
and his Boomers, claiming they could homestead or pre-empt
the land, moved in from Kansas across the Cherokee Outlet.
Many times they were thrown out by the military. Finally
Payne was arrested and brought to Fort Smith for trial as an
intruder under the Intercourse Law.

It was by far the most important case ever to come before
Judge Parker. Delegates from the Five Tribes assembled at
Eufaula for a two-day meeting, in which they discussed the
forthcoming trial at length and pledged $4820 to employ the
best legal minds of their nations to assist District Attorney
Clayton in his prosecution. 10 They were joined by the cattle
kings who were using the country as grazing lands.

On the other side, with the Boomers, stood a "powerful com-
bination of greedy St. Louis and Kansas businessmen," Kansas
newspapers and railroad companies which, although already
granted a right of way through the Indian country by the gov-
ernment, were more anxious than Payne to see the Indian titles
to the lands extinguished. There was even strong support for
the movement in Fort Smith. The Elevator, Parker's strong-
est advocate, gave its sympathy to Payne and screamed "Bay-
onet rulel" when the Boomer chief was brought in under guard.

Parker believed in territorial organization for the Indian

76 LAW WEST OF FORT SMITH

country. He had fought for it in Congress when he was repre-
sentative from Missouri. But, like his old boss, President Grant,
he believed it should come only after a period of years when
the Indians had "become sufficiently advanced ... to guard
their own rights." To uphold the Boomers meant "legalizing the
overwhelming of the whole territory" by the white man. Too,
the question was not whether the Unassigned Lands were pub-
lic domain. Payne faced a charge of trespass on the lands of
the Cherokee Outlet. There was no way for the Boomers to
enter these lands without crossing the Indian country and be-
coming intruders.

Payne's attorneys contended that he had been improperly
brought to Parker's court and that jurisdiction in the case lay
with the court at Wichita, Kansas. Parker ruled that only
land not belonging to the Cherokees was assigned to the Kansas
court. He said that the Cherokee Nation, while under the po-
litical control of the United States and dependent upon it for
its political rights necessary for the protection of its people,
"owns the soil of its country," and fined Payne $1000. 11

Accordingly the Cherokee Outlet was properly within the
jurisdiction of the court of the Western District of Arkansas,
and the Boomers must keep out. 1 - By asserting the jurisdiction
of his court, Parker had also established the Cherokee^ title to
8,000,000 acres of land. The Five Tribes celebrated their vic-
tory and forever afterward regarded Parker as their u power-
ful friend and ally." lij

All this was Judge Parker on the bench impartial, inflex-
ible. "But it was in his private life where the triumphs of his
character shone most resplendent." 34 Then he was plain Isaac
Parker, a gentle, kind, companionable man. His "problem area"
was in the Indian country to the west, so nothing prevented him
settling down to a quiet existence among the people he was to
live with for twenty-one years.

He lived half a mile from the courtroom and walked to work
every day. He stopped to chat with the merchants up and down

Five Hundred Miles to Fort Smith 77
the street, showed an interest in their business, and passed the
gossip of the day. He found them to be "first-rate people, who
wanted schools, hospitals and peaceful progress," and he joined
them in advancing Fort Smith to "Queen City of the South-
west, entitled to wear a gemmed crown of the superlative de-
gree." 15

Within ten years he saw the dirty frontier hamlet he had
looked upon the morning of his arrival by boat up the Arkansas
become a town with sidewalks, gas works, electric lights, street
cars, and excellent railroad connections, and declared a city of
the first class. 10 In his first decade on the bench its population
jumped to over 11,000. By 1887 it boasted one of the largest
cotton-seed-oil mills and compresses in the world, three large
cotton gins, two grist mills, three large saw and planing mills,
two furniture factories, two foundries, several wagon factories,
an ice factory, and one of the best waterworks systems in the
South. A fifty-thousand-dollar opera house and a twenty-
five-thousand-dollar canning factory were under construction,
and a company had been formed and a charter applied for to
build a four-hundred-thousand-dollar bridge across the Arkan-
sas. "A great agricultural, timber, coal, mineral, manufacturing
and wholesale and jobbing center, with the best cotton market
in the South handling 45,000 to 50,000 bales per season, and the
great United States court here, in session the year around, dis-
bursing over two hundred thousand dollars per annum." 1T

Parker worked for the general growth of the city, but he was
most noted for his work with the schools. He was given special
credit for preparing the bill by which Congress donated the old
military reservation, adjoining the principal part of town, to the
schools of Fort Smith. "A generous fund amounting to more
than half a million dollars in real estate, dedicated to educa-
tion. ... If used with wisdom and advantage, Fort Smith
stands pre-eminent among her sister cities." 1$ From this fund,
and school taxes, were constructed three large schools for whites
and one for colored children. Here Parker saw his two sons

78 LAW WEST OF FORT SMITH

receive their public education, grow to manhood, and enter the
law profession. Charles, the older, began his practice in St.
Louis, and James entered a law firm in Fort Smith.

While he observed the proprieties of his judicial position with
regard to politics, during his last four years on the bench the vot-
ers of this overwhelmingly Democratic community twice elected
him to the Fort Smith Board of Education. "There was no
politics in this . . . the tribute was to the man and not to the
position he held; it was a recognition not only of his sterling
qualities, but also of his affectionate interest in the children of
the town. ... To the children of the day he was the very em-
bodiment of that patron saint of childhood made famous by
the 'Night Before Christmas. 7 " 19 In his later years, as his
hair and beard turned white and his cheeks grew pink and
rotund, "he had a twinkle in his eye and a little contagious
chuckle which always made them think of Santa Glaus." 20

During the four years he served as director of the board, he
never missed a meeting.

In these meetings he had the courage of conviction, and in
many embarrassing and perplexing questions presented he stood,
always, for the integrity, purity and efficiency of the .schools and
the sacred preservation of the property of the district. He looked
forward to the time when night schools could be organized for
indigent young men and women, whose conditions imposed upon
them labor during the day, and he cherished and often spoke of
adding several industrial features to the system so that young
men and women might not only be trained morally and mentally
but also given some means of earning a livelihood when they
had completed their school course, 21

Parker's home was open for counsel to the poor and unfor-
tunate, and he contributed liberally to charitable causes. Al-
though he never identified himself with any religious denom-
ination until he joined his wife's church just before his death,
he went to church every Sunday, and nearly every Sunday

Five Hundred Miles to Fort Smith 79
also attended church with Mrs. Parker. He possessed a strong
religious disposition, as evidenced by the admonitions given
to the men he sentenced to death. On execution days he re-
turned home and prayed. When he finished sentencing the first
six men to the gallows, he bowed his head and wept. 22

"I do not desire to hang you men," he said. "It is the law."

It seemed strange that a man with such compassion could
become so relentless in his fight against outlawry. The entire
district over which he presided felt the effect and wondered at
his strong character. Whereas his predecessor was noted for
seldom holding court, Judge Parker gained notoriety for sel-
dom adjourning. At the beginning of his tenure there were but
two terms, May and November. Parker merged one term into
the other with no apparent break, and never recessed until the
last case scheduled had been tried. He opened court at 8:30 hi
the morning and closed at dark. Often he held night sessions
at the requests of attorneys. He observed no holidays except
Christmas and Sundays. In no other manner could Judge Parker
have disposed of the tremendous volume of work that constantly
pressed him. 23

Within the walls of the old federal courtroom, month after
month and year after year, the daily grind continued, and
"Tried, found guilty as charged, sentenced" was the tale re-
peated until the mere fact of arrest meant almost certain con-
viction. The sentence "To die on the gallows" was passed upon
more men here than anywhere in history. So numerous were
the executions he ordered and so commonplace the thunderous
crash of the gallows trap that street urchins playing outside
the old walls would gleefully shout: "There goes another man
to hell with his boots onl"

Its crash was also a familiar sound to the prisoners in the
federal jail, and "its grisly echoes should have been an un-
questionable deterrent to men of violence throughout the Ter-
ritory. But how vain its iron warning. . . . Always there was
someone to step into the vacancy made by the gibbet. . . ." 24

80 LAW WEST OF FORT SMITH

Two men were hanged together April 23, 1886. 25 Two died
together July 23, 26 and one hanged August 6. 27 On January 11,
1887, the morbidly curious who gathered in the jail yard saw
four murderers drop through the trap at the same time. 28 An-
other murderer who was to have hanged with this quartet, but
was granted a reprieve until the President and Attorney Gen-
eral examined his case, died alone April 8.- Two were hanged
the same year on October 7, 30 On April 27, 1888, a trio fell
through the trap. 31 There were single hangings on July 6,
1888, 32 and January 25, 1S89. 33 Two died April 19, 1S89, 34
and on August 30 two more murderers formed a duet on the
scaffold. 85 On January 16, 1890, a second sextet of felons
marched up the gallows stairs. A few minutes later six bodies
dangled between heaven and earth.

Judge Parker became "rank poison" to the vicious and the
criminal of the Indian country. His reputation as "The Hang-
ing Judge" spread until curious witnesses throughout the land
and from points as far away as London and Paris ventured to
this wild region in droves, to observe the proceedings in his
court and hear his pronouncements of doom.

Famous, too, became wispy, long-whiskered George Maledon,
the executioner. He seldom smiled and took a natural pride in
his work. His ropes were made of chosen hemp fiber, woven
by hand in St. Louis, and treated with a pitchy oil substance to
prevent their slipping. When he retired from his uncanny busi-
ness in 1894, he took with him one rope on which he had hanged
twenty~seven men, another he had used to string up eleven,
and another nine. With these mementos, other gruesome in-
struments of his office, and numerous photographs of the most
notorious desperadoes with whom he had dealt, he toured the
country towns and small cities within five hundred miles of
Fort Smith, pitching his tent and lecturing on the lives of the
various criminals and "how they came to their deaths in the
name of the law."

He was proud of his ability to always break the neck of his

Five Hundred Miles to Fort Smith 81
victim rather than strangle him to death, and accepted with
aplomb the monickers tacked on him by journalists "Prince
of Hangmen" and on the scaffold on which he performed his
duties "The Gates of Hell." 37

"Get out your oilcan, Maledon," was the grim jest of officers
and court attaches after each capital conviction. It was Male-
don's cue to oil up the squeaking hinges of the gallows traps.
But they had little time to get rusty. 38 During his twenty years
of service, he hanged sixty 39 of the seventy-nine men executed
under Judge Parker.

Maledon was also an expert pistol shot. Although small of
stature, he carried two guns, was left-handed, and could shoot
equally well with either hand. He shot four prisoners who
attempted to escape while awaiting trial. Another, a Negro
named Frank Butler, cheated the gallows by trying to escape
Maledon the night before his execution. The hangman fired one
shot, and the prisoner fell dead at the feet of his parents, who
were waiting for him outside the wall. Afterward it was learned
that his death had been planned that way. They knew of the
unerring aim of Maledon. They had agreed with their son that
it was better to die in this manner than by hanging. 40

Many stories were told of how the gallows behind the jail
was haunted. Inmates claimed that they frequently saw ghosts
standing on the scaffold. Others saw strange beings coming
over the walls with ropes about their necks. On one night, it
was reported, a multitude of spirits gathered on the platform
of the death-dealing structure and seemed to be holding a
meeting preparatory to making an attack upon the prison. But
these stories were largely believed by Negroes and superstitious
whites. Before Maledon left Fort Smith, he was asked by a
lady whom he was escorting on a tour of the jail if he had any
qualms of conscience or feared the spirits of the departed.

"No," he replied. "I simply did my duty. I never hanged a
man who came back to have the job done over."

On execution days it was Maledon J s duty to make the neces-

82 LAW WEST OF FORT SMITH

sary arrangements. He picked special guards and instructed
them so the condemned could not escape. He saw that they
dressed neatly and inspected their weapons. After 1881 they
were furnished uniforms.

He provided new suits and coffins for the prisons and ar-
ranged for transportation of unclaimed corpses to the cemetery.
In 1882, because these hangings had "taken on the aspects of a
carnival," Washington ordered them closed to the public. A
stockade was built around the gallows and the number of of-
ficial witnesses cut down to forty. Maledon received the addi-
tional duty of supervising the issuance of passes.

While these arrangements were being made, the condemned
prepared themselves to die. They were urged to pray and talk
to the ministers who came to their cells, to "save their souls
for eternity." "No matter how many stains of blood there may
be on the hands," Parker had said, "lift those hands in sup-
plication to the Judge of the quick and the dead . . . and let
the heart speak out contrition and sorrow." At first they laughed
and jeered at his words, but many, on the eve of their execu-
tion, asked permission to be taken from the jail and baptized.
Nearly all, in some manner, thought of their sins and salvation
before the trap fell from under their boots.

A draft of official records for the first fourteen years' work
of the court shows the appalling figure of ninety-three men
convicted of murder and rape committed in the Indian country
and ninety-two of these sentenced to hang. Of the ninety-three
total, one died in jail awaiting sentence, forty-six died on the
scaffold, two died in jail awaiting execution^ forty were com-
muted by the President to terms of from four years to life
imprisonment in federal penitentiaries at Albany, New York;
Columbus, Ohio; Detroit, Michigan; Joliet and Menard, Illi-
nois; Little Rock, Arkansas; and Moundsville, West Virginia;
two were granted new trials, and two were pardoned by the
President. 41

Little wonder that the criminal feared Parker and his Fort

Five Hundred Miles to Fort Smith 83
Smith justice. To the law-abiding citizens he was the frontier's
"rock of security," but to the brigands he was "hell on the
border."

Throughout the Indian country they denounced him as
"Hanging Parker" and "Bloody Parker" and "Butcher Parker."

Out in No Man's Land on the banks of the Canadian River
a sign had been nailed to a sycamore post at the crossing of
two main trails. At its top an arrow pointed eastward and be-
neath it was the legend:

500 MILES TO FORT SMITH

A band of horse thieves fleeing the territory a few jumps
ahead of the marshals paused long enough to empty their rifles
and six-shooters into the board to show their contempt for
Fort Smith and the federal court, then fled to safety.

One of them, returning past the sign a few days later, no-
ticed that they had nearly riddled it with bullets. Struck by
the humor of the "situation, he removed his dirk, and standing
high in his saddle, added two words to the legend. The sign
then read:

500 MILES TO FORT SMITH AND HELL

For most of them, Judge Parker made the distance much
shorter.

VI

LADY DESPERADO

ONE OF THE ONLY TWO MURDERERS THESE FIRST FOUR-

teen years Parker served as judge of the Western District of
Arkansas to finally receive a pardon from the President was
a white man who flourished under the alias "Blue Duck.' 7 On a
drunken spree with William Christie in the Flint District of the
Cherokee Nation, he rode into a field where a young fanner
named Wyrick was at work, emptied a revolver into the farm-
er's body, then reloaded, whirled his horse and rode off yelling,
firing a wild shot at an Indian boy in Wyrick 's employ. He
went to the house of Hawkey Wolf, a neighbor, and shot at
him three times without injuring him, then rode about the coun-
try bragging to several persons that he had killed Wyrick.
Deputy Marshal Frank Cochran arrested the pair and took
them to Fort Smith, where Christie was acquitted and Blue
Duck was convicted of murder and sentenced on April 30 to
die on the gallows July 23, 1886. 1 But through the able assist-
ance of his sweetheart the dashing lady desperado, Belle
Starr, who hired the best lawyers in the country he was twice
reprieved, and in September President Cleveland commuted

85

86 LAW WEST OF FORT SMITH

his death sentence to life imprisonment. 2 For by 1886 Belle
Starr figured prominently in the criminal activities of the In-
dian country. 3

She was the most notorious outlaw to be sentenced by Judge
Parker.

She was born Myra Belle Shirley, February 5, 1848, in
Jasper Country, Missouri, on a farm to which her parents, John
and Eliza Shirley, had migrated from Virginia in 1846. When
she was eight the Shirleys left the farm and moved to Carthage,
where John Shirley opened a combination livery stable, black-
smith shop, and crossroads cavaransary on the direct trail south
from Independence to Fort Smith and west through the central
part of the Indian country to Santa Fe along the route surveyed
by Captain Randolph B. Marcy in 1852. Here John Shirley be-
came prominent in politics, was highly respected, and pros-
pered. At the Carthage Female Academy, Myra Belle learned
her three "RV and how to play the piano, and was otherwise
given every chance to grow up to be a nice little girl. But her
overpowering interests were horses and guns, and by the time
John Brown had stirred bad blood between abolitionist Kansas
and proslavery Missouri, she was an expert horsewoman and
a deadly shot with pistol or rifle. 4

Pillaging and murder swept the border states. At the out-
break of the Civil War, citizens of both commonwealths found
themselves at the mercy of guerrilla bands who joined first one
side and then the other for the sole reason of looting and the
lust to kill. 8 Myra Belle was fifteen when the ruthless rebel
leader Quantrill sacked and burned Lawrence, Kansas. She
saw him build a small band into an army of hard-riding, well-
disciplined raiders whose exploits attracted the cream of
frontier bad men, among them Cole Younger and the two
Kentucky-born sons of a Baptist minister, Frank and Jesse
James; and she idolized them as dashing heroes of a lost
cause.*
Her brother Ed led his own band of Jasper County bush-

Lady Desperado 87

whackers operating out of Carthage. When he was killed and
the town razed by Federal troops in the summer of 1863, Myra
Belle flew into a rage, strapped two pistols about her waist,
and rode off to join the guerrillas. She became informant for
the Rebels. Many Federal troops died in broad daylight and
small detachments were wiped out as the result of information
furnished by this revenge-crazed girl. 7 A few months later
Carthage was again raided and the Shirley home burned.

Sick at heart, John Shirley moved his family to Texas, "where
the social atmosphere was more to his liking," settling between
Mesquite and Scyene, east of Dallas. He reverted to his old
profession of farming and raising fine horses. He placed Myra
Belle back in school and tried to cure her of her flamboyant
ways; but in 1866, dark, handsome, twenty-four-year-old Cole
Younger rode into the Shirley ranch with his three brothers and
Frank and Jesse James, fresh from their first bank job at
Liberty, Missouri, and Myra Belle fell in love with Cole. When
the outlaw rode back with his gang to Missouri in 1867, he left
her pregnant with a child. 8

Myra Belle never saw Cole Younger again. The gang startled
the nation with its daring bank and train robberies. Sheriffs
and Pinkerton detectives were hot on their trail. At Northfield,
Minnesota, the gang was nearly annihilated; only Frank and
Jesse escaped; Cole and Bob were wounded and captured and
sentenced to life terms in the state prison at Stillwater.*

Meanwhile, Myra Belle's scandal swept the Texas country-
side. Scyene society ostracized her. When the child was born, a
daughter whom she named Pearl Younger, she left it in her
parents' care and "entered the saloon life of Dallas." For a
while she sang in the dance halls, dealt monte, faro, and poker.
She dressed "spectacularly," but "within the conventions," and
did "very well financially*" 10 But she got a craving for a suc-
cessor to Cole Younger, settling finally on Jim Reed, an "ob-
scure but proficient" young horse thief operating around Dallas.

Reed was twenty-eight years old, five feet eight, and slender,

88 LAW WEST OF FORT SMITH

with a Roman nose and sandy hair. He had migrated to Texas
from Vernon County, Missouri, in 1872, settling on Coon Creek
in Bosque County. 11 A few months later he sold his farm and
moved to Scyene. He made love to Myra Belle, and over the
"violent opposition" of John Shirley, married her and took her,
with her illegitimate child, back to Missouri and his family at
Rich Hill. 12

This was the beginning of her career in banditry. Reed was
a member of a large band of horse thieves led by the Texas out-
law John Fischer. The band preyed on Texas herds and ran
them north. Myra Belle found in these activities the freedom
her soul craved, and aided his aspirations until the Shannon
boys, members of a competitive outfit, ambushed Jim's brother,
Scott Reed, mistaking the latter for John Fischer. Jim went
after the Shannons and killed them, and had to flee the coun-
try to avoid arrest on two warrants charging murder. He sent
for Myra Belle and little Pearl, and for a while they found
refuge in California. Here her second child, Ed Reed, was born
in Los Angeles. Then a local constable learned there was a
reward offered for Reed. A matter of a stage robbery near San
Diego also helped hasten their departure from the state.

Myra Belle returned to Texas. The birth of this second
child had somewhat reconciled John Shirley. 13 He took in his
daughter and the children, but Reed, "being an asset of too
much value for him to remain long in one place," sought refuge
in the Indian country and made periodic visits to his family by
stealth. 14

He hid out on the ranch of Tom Starr, a Cherokee, who had
the reputation of being the wor^t Indian with whom the tribal
government ever dealt. 15 A strong advocate of the Southern
cause, he had stirred up such an outburst of rubbery and mur-
der against the Ross faction of the nation that the Cherokee
Council made a treaty with him, granting him amnesty for his
past crimes and a good slice of tribal wealth to be a good boy,
Tom and his sons, Sam, Cooper, Molsie, Tuxie, William, Ellis,

Lady Desperado 89

Jack, and Washington, including two daughters, Nettie and
Sophie together with their numerous cousins and in-laws
all had taken land between Briartown and Euf aula on the bend
of the Canadian. It was a remote region rarely traveled by peo-
ple not friendly with the Starr clan, and therefore a safe re-
treat for outlaws of the Reconstruction disorder. Jim Reed
had made old Tom's acquaintance about the same time the
Jameses and Youngers used his place as a hide-out after the
breakup of QuantrnTs guerrillas. Here Belle came to meet her
husband, and thus became acquainted with handsome young
Sam Starr, Jack Spaniard, Jim French, Felix Griffin, Blue Duck,
and a host of others whose names were to grace the most spec-
tacular period of her life.

During one of her visits, in November, 1873, Belle, dressed
as a man, accompanied Jim Reed and Daniel Evans 16 in the
robbery of Watt Grayson, a wealthy Creek Indian living west
of Eufaula not far from Tom Starr's home. Grayson and his
wife were tortured by the robbers until he revealed the hiding
place of over $30,000 in gold coins.

The following April, in 1874, when Jim was paying one of
his visits to Belle, he teamed up with two of his old Missouri
pals and held up the Austin-San Antonio stage north of Blanco, 17
obtaining $2500 in cash and four gold watches. 18 Abandoning
their jaded ponies, the trio took the "spirited animals belong-
ing to S. T. Scott & Co.'s stages," and headed "in a northwestern
direction, keeping between the settlements and the Indian coun-
try." 1J> On April 28, 1874, the Dallas Daily Herald announced
the arrest of "two of the participants in the robbery" in Dallas,
and on August 6, 1874, Jim Reed was slain by Deputy Sheriff
John T. Morris of Collin County in a cabin near Paris. 20

Belle now embarked upon that part of her lurid career for
which she became notorious in Judge Parker's court. She took
her son Ed to Rich Hill, Missouri, and placed him in the care
of Grandmother Reed; shipped little Pearl to other relatives
in Arkansas; and returned to the Indian country to "practice

90 LAW WEST OF FORT SMITH

the profession she knew best." She joined the Reed gang of
"rustlers, highwaymen, Indian half-breeds and cowboys" and
dominated them with her "scathing tongue, superior intelli-
gence and sex appeal." They stole cattle and horses, highjacked
the tribal treasuries, ran whisky to the Indians, and burglarized
stores. Belle never participated in the raids herself, but served
as the "brains" of her ruffianly crew, and became so success-
ful in securing "the quickest possible release" of any member
of the gang who got arrested by the marshals that they re-
garded her as a sort of magician. 21

She disposed of the loot they brought her through "fences"
and helped them whoop off the profits at the seasonal stomp
dances, horse races, and near-by Indian Territory "boom"
towns in general "fornication and merriment."

Tulsey Town (Tulsa) had one two-story hotel from which
drunken cowboys shot out the window lights regularly, and its
share of "masculine social centers." Saloons being prohibited
in the Indian Territory, the pool hall, with its merry click of
balls and loud merriment, the back room with its card games
and liquor and swirls of tobacco smoke, became the centers
of cheerful talk, amiable profanity, and the dampening of one's
jollity. Claremore was a "bad" town, but Catoosa, on the
branch of the Frisco railroad running out of Missouri through
it from Vinita to Tulsa and the crossroads of two important
cattle trails, was the "hell-hole" of the whole territory. 23

Hotels, stores, the livery stable, not to mention the wily boot-
legger, all did a rushing business. Occasionally inebriated riders
raced their ponies up or down Main street, whooping mightily
and emptying their revolvers at the sky, though sometimes the
aim was careless and store windows or false fronts suffered as a
result. The noisy celebrants often kept up the rattle of pistol shots
far into the night. Not infrequently arguments or smouldering
grudges flared up, ending in fist fights or gun smoke. Except for a
United States marshal or a deputy who occasionally rode through,
there was no constituted authority of law and order. * . .**

Lady Desperado 91

Here Myra Belle caroused and made love to the characters
she liked best, finally marrying young Sam Starr, and thus she
became Belle Starr, the name by which she is best known to
posterity.

Sam's ranch was in the bend of the Canadian River under
Hi-Early Mountain. The only approach was over a narrow
canyon trail set with boulder-guarded caves. By this marriage,
Belle had "acquired dower rights to Sam Starr's share in the
communal lands" of the nation; she moved right in and named
the place "Younger's Bend," obviously hi token of her "senti-
mental rememberances of her first lover." 2 * It became a new
refuge for fugitives, and so inaccessible was her stronghold and
so smooth her operations, she was not arrested until she and
Sam were caught stealing horses from a neighbor's corral on
April 20, 1882. They were taken to Fort Smith to face Parker.

The trial began February 15, 1883. It lasted four days and
became a national sensation. Reporters seized upon Belle as
"copy," and Eastern journals and newspapers headlined her
"Queen of the Bandits," "The Lady Desperado," "Wild Woman
of the Wild West," "The Petticoat Terror of the Plains." She
had achieved the notoriety of her childhood playmates the
Jameses and Youngers. She was convicted on two counts, Sam
on one. Judge Parker sentenced her to two six-month terms and
Sam to a full year in the House of Correction at Detroit. 25

In nine months both were back at Younger's Bend. They took
into the gang a new member named John Middleton, a cousin
to Jim Reed. Middleton was wanted in Arkansas for larceny
and arson and in Texas for murder. A few nights before his
arrival at Younger's Bend he had gone to the home of Sheriff
J. H. Black of Lamar County, called him to the front door, and
shot him down in cold blood.

Meanwhile, Sam Starr and Felix Griffin held up the Creek
Nation treasury. The marshals captured Griffin 26 and ob-
tained a warrant for the arrest of Starr. Starr fled from Young-
er's Bend, but with the marshals and Indian police so thick

92 LAW WEST OF FORT SMITH

in the neighborhood, Middleton began worrying about his safety
and decided to head for a mountain hide-out in Arkansas near
his mother's home at Dardanelle.

Belle's love had grown cold for Sam since their stay at
Detroit, With Sam on the dodge and her left alone with Mid-
dleton, it soon became "enkindled." She decided to accom-
pany Middleton and "give Sam the slip." They rode together
as far as Keota. Here they separated, continuing on different
routes to allay suspicion and meet later near Dardanelle. Mid-
dleton never reached his destination. A few days later his horse,
still saddled and bridled, was found tangled in the brush on
the bank of the Poteau in the Choctaw Nation. Near by, washed
up on the bank and half-buried in mud, lay the outlaw's body.
His face had been blown away with a shotgun, Sam Starr "hav-
ing trailed him silently." 2T

Belle returned to Younger's Bend. Whether she gave Sam
an excuse for her actions, or whether even she considered it
necessary, is a matter of conjecture. Sam knew the "kind of
slut she was" and that he was "sharing her" with the other
outlaws, but he had to stay on the dodge. Belle's attentions
had centered on Blue Duck when he went on a rampage and
murdered the farmer Wyrick. Even after she succeeded in
getting his sentence commuted, she was unable to spring him
from prison, and found herself again "lonesome" for male
companionship.

Sam ventured back to Younger's Bend in March, 1886, and
was surprised to find Bill Vann, chief of the Cherokee Light-
horse, and a posse waiting for him. In their raid on Belle and
Sam, they captured a white man named Jackson, but nine others
escaped, Sam Starr by jumping his horse off a bluff over twenty
feet high and swimming the river. "These officers are deter-
mined, however, to break up this band of cut-throats, robbers
and horse-thieves, and say they will never let them rest in peace.
This is certainly a bad gang, and we would rejoice to know
that they were out of the country. . . ." **

Lady Desperado 93

On May 28, 1886, Deputy Marshal Tyner Hughes arrested
Belle on a charge that, dressed in male attire, she had led a
party of three men who robbed an old man named N. H. Far-
rell and his three sons forty miles from Fort Smith in the
Choctaw Nation. At the hearing, however, neither Farrell nor
his sons were able to identify anyone, and Belle was released.
A few weeks later she was arrested for stealing horses from
one Albert McCarty. Belle again successfully fought her case,
and was discharged when the jury found her "not guilty as
charged in the within indictment."

Sam Starr was still at large. Late in September, Chief Vann,
his brother R. P. Vann, Frank West, and Deputy William
Robberson, sighted him riding through a cornfield. Vann called
on him to surrender. Starr set spurs to his mount and started
shooting. The posse returned his fire } knocking him from the
saddle and killing his horse.

With the outlaw in custody they proceeded to a farmhouse
near by. While they were dressing his wounds, preparatory for
the long ride to the tribal council, the Starr gang raided the T
farm, overpowered the officers, and then escaped with the pris-
oner.

Belle learned that Vann was organizing a huge posse to wipe
out Younger J s Bend and recapture Sam. She prevailed upon
Starr to surrender to the United States marshals, explaining
that he would have a much better chance defending himself on
robbery charges in federal court than before a tribal council.
Furthermore, if he gave himself up to the marshals, the In-
dian officers could not arrest him.

It was good advice, considering how the chiefs hated old
Tom Starr and all his family. Too, Sam did not fancy the pun-
ishment dealt out to offenders of tribal laws. So Deputy Marshal
Tyner Hughes was surprised on October 11, when the long-
hunted Starr rode unarmed through the streets of Fort Smith
and surrendered to him at the federal jail. As usual, Belle
immediately employed the best lawyers. In a short time Sam

94 :LAW WEST OF FORT SMITH

had been arraigned, released on bail, and sent on the way back

to Younger 's Bend to await the date of his trial.

On Friday night, a week before Christmas, Mrs. Lucy Sur-
ratt, who lived near Whitefield on the Canadian, gave a dance
at her home and invited the neighborhood. Belle and Sam de-
cided to attend. They arrived at the place after dark. Sam was
drinking and in a bad mood. The moment his eyes fell upon
Frank West, who was also attending the dance, he said:

"You are the son of a bitch who shot me and killed my
horse that day in the cornfield!"

West denied both charges. Starr drew his gun. He shot West
in the neck. As the policeman fell he pulled his own revolver
from the pocket of his overcoat and sent a bullet through
Starr's heart. Both men were dead within two minutes after
sighting each other.

With Starr's death, things quieted down at Younger's Bend.
Pearl Younger and Ed Reed, Belle's daughter and son, now
grown, came to live with their mother in her log cabin under
Hi-Early Mountain, and readily took up with the wild and
criminal associates they found there. In April, 1887, Pearl gave
birth to an illegitimate daughter in Siloam Springs, where Belle
had sent her, telling her she never wanted to see the child. Pearl
left the child in Arkansas and returned to Younger J s Bend,
refusing to disclose the name of its father. Meanwhile Ed
evinced a fondness for liquor and began selling it to the In-
dians. On July 22, 1888, he was convicted of horse stealing
and sentenced to seven years in the federal penitentiary at
Columbus. But through the efforts of his mother and the at-
torneys she hired, he received a pardon within a few months.
When he returned to Younger's Bend, Belle had married again,
this time to a tall young Creek named Jim July, who was only
twenty-four years old but was well educated and could speak
the languages of all the tribes fluently.

July was under indictment in Judge Parker's court for horse
stealing when Belle moved him in at Younger's Bend, On

Lady Desperado 95

February 2, 1889, he left for Fort Smith to answer the larceny
charge. Belle, riding her favorite white horse Venus, accom-
panied him as far as San Bois, a distance of fifteen miles.

On her return she stopped at the home of a man named
Rowe to visit his wife, and while there met E. A. Watson. The
rumor was that Watson was wanted in Florida for murder.
He had been in the neighborhood about a year. He had been
dickering to lease a part of Belle's acreage for farm land, which
Belle had declined to do. On the occasion of her visit at the
Rowes', they renewed the argument, during which Watson re-
marked about the frequency with which federal officers came
to look her over.

Belle replied: "Maybe the officers in Florida would like to
know where they could find you?"

It was believed that Watson decided Belle was going to turn
him in; that he went home, armed himself with a shotgun, and
waited in a fence corner for her to ride past as she left the
Rowe place.

That afternoon two men at the ferry on the south side of the
Canadian heard shots, and a moment later Belle's horse with
an empty saddle ran down the trail and swam the river. One
of the men, Milo Hoyt, hurried up the trail and found Belle
lying face down in the mud. A charge of buckshot in the back
had unhorsed her. A charge of turkey-shot had been fired into
her face and neck. When the animal reached home, Pearl, fear-
ing something had happened, mounted and rode back, soon
reaching the scene of the murder. 29

July was in Fort Smith when he received the wire about his
wife's death. He bought a quart of whisky, saddled his horse,
and headed for home with bad blood in his eyes and the ominous
promise: "Somebody is going to suffer." 30

The distance was about seventy-five miles. He arrived at
Younger's Bend in nine hours. The story of Belle's quarrel
with Watson at the Rowes* had been circulated. A set of tracks
similar to those of Watson had been discovered leading from

96 LAW WEST OF FORT SMITH

his house to the point where the assassin stood, then by a cir-
cuitous route back again, and his shotgun had been found in
his home with both barrels freshly discharged. 31 July threw his
Winchester on Watson and accused him of murdering his wife,

"If you kill me,' 7 Watson told him, "you will kill an innocent
man."

He denied any knowledge of the crime. 32

July informed him that he was under arrest, and Watson
agreed to accompany him to Fort Smith without the formality
of a warrant. The small party of witnesses, including July
and his prisoner, accompanied by Pearl Younger, arrived in Fort
Smith the following day, and July swore out a charge against
Watson. 33

The testimony was taken before United States Commissioner
Brizzolara. The evidence was all circumstantial. No one seemed
anxious to secure an indictment against Watson except July.
Watson's neighbors refused to testify against him. They swore
he was a quiet, hard-working man, well liked by everyone, and
had caused no trouble since coming to the community. The
rumor that he was wanted in Florida proved to be false. Com-
missioner Brizzolara ordered the defendant discharged. 34

July jumped the bond on the horse-theft charge pending
against him. Judge Parker issued a warrant for his arrest, and
on January 23, 1890, Deputy Marshal Heck Thomas brought
him back to Fort Smith, badly wounded. He had been shot by
Deputy Marshals Bud Trainor and J. R. Hutchins near Ard-
more in the Chickasaw Nation. And this is how that happened.

After Watson was released, he called Deputy Hutchins to
his home and told him he had been framed by Jim July; that
July had come to his house at three o'clock the afternoon he
supposedly had been en route to Fort Smith and asked to bor-
row his shotgun "to kill a wolf that has been catchin' my chick-
ens." When July returned the gun an hour later, both barrels
had been fired. Shortly afterward Watson had learned that
Belle Starr had been murdered and that he was suspected.

Lady Desperado 97

Watson gave Hutchins the empty shells, and the marshal took
them, with his new information, to Judge Parker. It was Wat-
son's word against July's, but Parker saw no reason for the
farmer to lie now that he had been freed on the charge. He
authorized Hutchins to go to Younger's Bend and find out what
he could.

From Milo Hoyt the deputy learned that a short time prior
to the shooting, July had offered him $200 to kill Belle. Hoyt
had declined, and July, spurring his horse savagely, had rid-
den away, shouting: "Hell I'll kill the old hag myself and
spend the money for whisky! "

"Why would July want to kill his own wife?" Hutchins asked
Hoyt.

"I reckon because Belle caught him playing around with a
little Cherokee gal over at Briartown. She told him she would
do nothing to help him fight that case he had coming up at
Fort Smith."

This, one may conclude, was the reason Belle rode with
July only as far as San Bois.

Obviously July sensed that Hutchins was finding out too
much. Rumors came to the marshal that the outlaw intended
to kill him. While Hutchins was on another assignment down
in the Chickasaw Nation, an Indian woman sent her young son
to warn him that the outlaw had stopped at her home near Rock
Creek making inquiries for him, and had left heading for Ard-
more.

Hutchins and Trainor proceeded to the woman's home at once
and picked up July's trail. At daybreak they overtook him and
demanded his surrender. July reached for his guns and set spurs
to his long-legged sorrel. Hutchins opened fire, wounding him
seriously with the first shot, and July surrendered.

Four days after the outlaw arrived at Fort Smith he was re-
moved from jail on the verge of death. He asked for Hutchins,
stating that he had an important confession he would give only
to the man who had shot him. Hutchins was notified to come

98 LAW WEST OF FORT SMITH

to Fort Smith at once, but before he arrived, July was dead.

The deputy was confident that July would have told him: "I
killed Belle Starr." 85

Whoever was guilty, July or Watson, Belle Starr was dead.
And she died as she had lived, ingloriously and ignominiously.

Pearl Younger had her mother taken to the Bend and buried
behind one of the cabins, and erected over her grave a monu-
ment of native stone. At its top, chiseled in relief, is the image
of her favorite horse Venus with a B-S brand on its shoulder.
Above and to the right is a star, and below, to the left, is a bell.
At the bottom is a clasped hand filled with flowers, and the fol-
lowing inscription:

BELLE STAKR

Born in Carthage, Mo.

Feb. 5, 1848

Died

Feb. 3, 1889

"Shed not for her the bitter tear,
Nor give the heart to vain regret;
'Tis but the casket that lies here,
The gem that filled it sparkles yet."

VII

"AFTER I AM KILLED!*

ON THE EVENING OF JUNE 1, 1892, THE SOUTHBOUND

Santa Fe pulled out of Arkansas City across the Cherokee Outlet
en route to the Unassigned Lands, which had been opened to
white settlement on April 22, 1889, and named "Oklahoma."
The train was loaded with passengers. Conductor Harry Wilcox
was in charge. In the express car behind the engine rode E. S.
Whittlesey, the express messenger, and John A. Riehl, a Wells
Fargo Express guard.

It was 1 o'clock when the train reached Red Rock, in the
northwest corner of the Otoe and Missourias reservation in the
Cherokee Indian strip. Just as it was pulling out a few minutes
later, two men with black masks covering their faces jumped
suddenly into the engine's cab from the tender, and covering the
engineer and fireman with revolvers, commanded them to run
the train down to the stockyards and stop there at a given signal.
Mack, the engineer, and Frank Rogers, the fireman, obeyed the
command. To have resisted would have meant their death. When
the train stopped, the two robbers were joined by five masked
companions. 1

99

100 LAW WEST OF FORT SMITH

The train was in the hands of the Dalton gang the most
desperate band of robbers to infest the Indian Territory.

Whittlesey and Riehl, anticipating what was going on when
the train came to a standstill, had blown out the lights in their
car and refused to allow anyone to enter. The gang opened fire
on the car from all sides, sending lead whipping through the
wooden sides and windows, even getting under the car and
shooting through the floor. But the two men bravely stood their
ground, returning the fire courageously, and drove back the
robbers.

Finally the leader seized a coal pick from the engine. He
handed it to the fireman and ordered him to go forward and open
the door. This placed Rogers literally between two fires, and
engineer Mack, seeing that it meant death to his companion,
explained the situation to the men inside and told them to cease
firing.

Whittlesey and Riehl allowed Rogers to approach the car.
He chopped a hole in the door large enough to admit a man's
body, and was told to crawl through it into the car. The moment
he was inside, Riehl ordered him to go to the opposite end of
the car and lie down. Then the guard shouted to the bandits
that the first one to enter the opening would be shot dead.

Another fusillade poured through the car while Riehl and
Whittlesey hugged the floor, with their guns trained on the door-
way. During the siege, the fireman kept begging the men to give
up, and after each volley the leader outside would shout: "If
you lay down your guns and come out with your hands up, you
won't be hurt/'

Realizing that they all might finally be killed, the two men
surrendered. When the robbers entered the car, they covered
them with their guns, and with a sledge hammer and chisel
broke open both the "way" and "through" safes and robbed
them of everything of value. After taking a gold watch from
Riehl and both men's weapons, they mounted their horses and
escaped in the night. 2

"After I Am Killed!" 101

The year before, on May 9, 1891, the Dalton gang had held up
the Santa Fe express at Wharton, in the Outlet. 8

When the robbers boarded the train . . . the messenger was
looking out the door of his car, and seeing what was going on,
immediately closed and locked it. ... While the bandits were
detaching the engine and express car from the rest of the train
and were running it to the place where the robbery occurred, two
miles distant, the messenger disposed of most of the valuables in
places of safety. . . . When the robbers appeared at the door, he
made a show of resistance, but finally admitted them. They im-
mediately made for the safe and demanded that it be opened.
With feigned reluctance the messenger opened it, and at the
command of the leader handed over the contents, among which
was a package . . . containing $500. . . . 4

On Tuesday night, September 15, 1891:

The southbound passenger train on the M. K. & T. was flagged
at Lillietta, a cattle station a few miles north of Wagoner, and
the express was robbed of about . . . $3000. The robbers did
not molest the passengers and only detained the train a few
minutes. So quietly did they do the job that the passengers did
not know the train had been robbed until after they had pulled
out and were nearly to Wagoner. Reports are conflicting as to
the number of robbers, one being that there were only three and
another that there were seven. ... It is the general opinion that
the job was done by the Dalton boys, and it is more than probable
that they were 'in it 7 . . . .*

Following the Red Rock robbery, they held up the north-
bound Missouri-Kansas-Texas passenger train near Adair in
the Cherokee Nation. This holdup, which occurred the evening
of July 15, 1892, was as daring a feat as any accomplished in
the band's career. The train carried an armed force of Indian
police and railroad detectives, who poured a withering fire into
the bandits as they broke into the express car. Several police and
passengers were wounded, and Dr. W. L. Goff, who was sitting
in a drugstore near the depot, was slain by a stray bullet, 6

)2 I-AW WEST OF FORT SMITH

The wildest rumors concerning the lightning rapidity and
icrecy with which Bob Dalton conducted the band's operations
>read over the territory and into the bordering Kansas towns,
id every act of particularly bold outlawry was placed to their
edit.

The James boys, with all their deeds of outlawry, surpassed in
no way the crimes that the devilish Daltons have been known to
commit. Schooled in vice and sin through older associates, serving
apprenticeships under some of the greatest criminals the world has
ever known, they now have blossomed out the peer of any gang
that makes a living purely and alone from appropriating other
men's honest gains at the point of knife and gun. 7

Hardly had news of the Adair robbery hit the papers when the
Dbbers appeared in El Reno, on the Choctaw Coal and Railway
,'ompany's lines, one morning when the streets were crowded
dth people, and entered the leading bank of the city. The only
.erson in the bank at the time was the wife of the president, who
ainted at the sight of their guns. The bandits leisurely helped
tiemselves to all the money in sight, remounted their horses, and
ode away. The raid netted them $10,000, which was such a
evere loss to the bank it was forced into liquidation. 8

The Dalton brothers who formed the gang Grat, Emmett,
jid Bob were the three youngest of a family of fifteen children
>orn to Lewis and Adeline Dalton. Lewis Dalton was a Ken-
ucky man who had fought in the Mexican War. Later he moved

Jackson County, Missouri, near the home of the notorious
fameses and Youngers, and married Adeline Younger, an aunt
>f the Younger boys. They moved some years later to Kansas,
settling finally near Coffeyville. Here the children, except two,

1 boy and girl who died in infancy, grew up. Of the remaining
ihirteen children, eight boys and five girls, the three older
>rothers, Charles, Henry and Littleton, drifted to Texas and
Montana. Another son, Bill, went to California, married, and
Settled down in respectability. In 1882 Lewis Dalton moved the

"After I Am Killed!" IVZ

rest of his family to the Indian Territory, leasing land in the
Cherokee Nation near Vinita until 1889. Unsuccessful in ob-
taining a farm in the Oklahoma land rush, his temper soured,
and he returned to Coff eyville, doing odd jobs about the country
until his death in 1890. Charles, Henry, and Littleton returned
to Oklahoma and settled down with their mother on some good
claims they obtained near Kingfisher. Their sisters married well
and located on farms near by. Another brother, Frank Dalton,
had seen service as a deputy United States marshal under Judge
Parker as early as 1884, and was known as a brave and effec-
tive officer. On November 27, 1887, he was shot and killed at-
tempting to arrest three whiskey peddlers in the river bottoms
west of Fort Smith.

Marshal John Carroll appointed Grat Dalton to fill Frank's
boots. Bob joined Grat as a posseman and soon thereafter was
himself appointed deputy marshal under Jacob Yoes. Emmett,
still a boy, was employed on the Bar X Bar ranch near the
Pawnee Indian agency. He never held a federal commission but
served as posseman under Grat and Bob. 10

The three brothers were deadly fast with their guns, knew no
fear, and rode like imps from damnation. They became known
the length and breadth of the territory as dangerous men to
affront. But the time came when it was another case where
Parker could no longer wink at the Daltons as deputies.

Grat and his brothers became involved in several shady
transactions, and finally "overstepped the bounds of official
decency" by stealing and running away a herd of horses, which
they sold in Baxter Springs, Kansas. They fled to California
to avoid arrest on federal warrants, and here, on the night of
February 6, 1891, they joined brother Bill in a daring but
unsuccessful attempt to rob an express train at Alila in Tulare
County. The fireman was killed, and the Daltons were charged
with robbery and murder. Bob and Emmett fled back to the
Indian country. Grat and Bill were captured and charged as
accessories. Bill won an acquittal. Grat was convicted and

104 LAW WEST OF FORT SMITH

sentenced to twenty years in the state penitentiary, but escaped
from the train while being transferred to prison. Aggregate
rewards to the amount of $6000 were offered by both the rail-
road and express companies for the arrest of the Daltons and
their delivery. 11

In the Indian Territory, Grat rejoined Emmett and Bob.
Bob, wilful and impetuous, became their leader. They added
two members to their band, Dick Broadwell and Bill Powers,
alias Tom Evans two typical Territory outlaws. Within a
year they had successfully looted trains at Wharton, Lillietta,
Red Rock, and Adair, and been charged with numerous other
crimes.

The Daltons were familiar with the operations of the United
States marshals. They avoided capture by hiding in caves on
the Canadian River and in the Creek Nation. 12 Then, on the
crisp fall morning of October 5, 1892, they attempted the bold
task of robbing two banks at once in broad daylight at Coffey-
ville, where they had been raised from childhood and were well
known to most of the citizens. This was the last raid of the
Daltons, and according to the proud boast of Bob, their leader,
it would have eclipsed anything ever pulled by the James boys
and the Youngers. 13

The gang was recognized the moment they rode into town
at nine o'clock. Word spread among the three thousand resi-
dents swiftly and silently. When the gang split and entered the
two banks, armed men took strategic positions.

As the outlaws emerged, they were met by a deadly barrage
of gunfire. Bill Powers was shot dead in the street. City Marshal
Charles Connelley wounded Grat Dalton. As the outlaw lay
on the ground dying, he lifted his six-shooter and killed the
marshal as the latter approached. Two citizens, Lucius Bald-
win and George Cubine, rushed to the aid of Connelley, and
Dick Broadwell fired on them, killing both men instantly. As
Broadwell fled to his horse, a charge of buckshot caught him
in the right side and arm. Blood gushed from his wounds, bat

"After I Am Kitted! 99 105

he mounted and started out of town. He was hit again by a
rifle bullet fired from the livery barn. Still clinging to his horse,
he rode a mile from Coffeyville before he fell from the saddle
into the road, dead. When Bob and Emmett rushed from the
First National Bank, they met a citizen named Charles Brown.
Bob put a bullet between Brown's eyes. He and Emmett then
ran to their horses in the alley and mounted. A hail of lead tore
Bob from the saddle; and Emmett fell from his horse badly
wounded, and was captured. The battle had lasted ten min-
utes. Two hundred shots had been fired and eight men four
citizens and four bandits lay dead in the street. Had the raid
been successful, it would undoubtedly have been the largest of
its kind in Western history, for when quiet had been restored,
it was learned that the gang had taken $11,000 from the First
National Bank and $20,000 from the Condon. 14

Emmett Dalton was removed to a hospital, where he re-
covered from his wounds. He was tried for murder and sen-
tenced to life in the Kansas state penitentiary. After serving
fourteen years he was pardoned and restored his citizenship.
He died in California in 1937.

This ended the career of the Dalton gang, but appalling tales
of their escapades still filled the border press when Bob Rogers
set out "to swell the list of bandits" in 1892. With the story
of how the Daltons got their start ringing in his brain, he stole
a dozen horses in the Cherokee Nation and sold them in Arkan-
sas. Deputy Marshal Heck Bruner arrested him and took him
to Fort Smith.

Judge Parker sentenced Rogers to the federal reformatory,
but released him on probation because he was only nineteen.
Looking down at the boy from his bench, the judge said:

"This is your first offense, lad. If you continue in this path of
life, death may be the penalty."

It was good advice, but young Rogers didn't take it. For a
while he continued to engage in petty thefts. On November 3,
Jess W. Elliott, a Cherokee, went to Catoosa to serve some

106 LAW WEST OF FORT SMITH

legal papers in the capacity of deputy constable for the Chero-
kee courts. He met Rogers in a pool hall. Both men were drink-
ing, and they engaged in a fight. Elliott was beaten and knocked
down before bystanders interfered. They got Rogers out of
the place and kept Elliott inside until he was able to ride. When
Elliott got on his horse and started up the street, Rogers fol-
lowed. He "knocked the constable off his horse, cut his throat
with a knife, making three horrible gashes, and left him in the
roadway." A passerby observed Elliott "leaning against a post
with the blood rushing out of him as if he were vomiting" and
summoned a doctor and the neighbors. Elliott died within
twenty minutes. The doctor and the neighbors built a fire and
"stayed to watch the body where it laid" while a messenger
went after Deputy Marshal John Taylor, but Rogers returned,
"rode through the fire, ran them off, kicked and stamped the
lifeless body of his victim, put on and wore his hat for a while,
looked through the papers in his pocket and left' 7 just before
Taylor arrived. The marshal trailed him to Sapulpa, where
Rogers had his horse shod the next day and left word that he
was going west. 15

A few months later he returned to the Indian Territory rid-
ing at the head of a gang of four desperadoes, among them a
killer from Colorado with a reward of $1400 on his head named
Dynamite Jack. 16 Duplicating the deeds of the Daltons, they
robbed the Missouri-Kansas-Texas Railroad at Kelso; held
up the Mound Valley Bank in Labette County , Kansas; and
on Christmas Eve robbed the Kansas and Arkansas Valley train
at Seminole switch. 17

On January 8, 1894, Deputy Marshal W. C. Smith surprised
Rogers at the home of his brother-in-law, Henry Daniels, where
he and a member of the gang named Bob Stiteler had stopped to
spend the night. Stiteler had gone upstairs and Rogers was sit-
ting before the fire with his boots off when the officer came in
and disarmed him. At Smith's orders, Daniels went upstairs

"After I Am Killed!" 107

and brought the other outlaw down. As the men dressed prepara-
tory to going with the marshal, Rogers struck Smith in the
head, knocking him down, and both outlaws escaped in the
darkness. Stiteler was recaptured the same night and taken to
Fort Smith. 18

Between 3:00 and 4:00 A.M. on January 24, 1894, Heck
Bruner's posse surprised the rest of the gang asleep in a hide-
out on Big Creek. They captured Dynamite Jack and killed his
brother Kiowa, and Willis Brown was so severely wounded
that he died en route to Fort Smith at Vinita. 19

Rogers remained at large. On the night of March 13, 1895,
a posse under Deputy Marshal Jim Mayes learned that the
youth was hiding in his father's house at Horseshoe Mound,
twenty miles south of Coffeyville. They rode to the place in
the early morning hours and concealed their horses in a dump
of trees bordering a dry creek. Inside the house, besides Rogers
and his father, were Charlie Collier and his wife, who were in
the elder Rogers' employ.

Mayes deployed his men so that the building was sur-
rounded and a shotgun or rifle trained on every door and win-
dow. With eight men, the deputy then approached the front
door and knocked. Collier opened the door, saw the group out-
side, and summoned the elder Rogers.

"What do you men want?" the father asked.

"We want your son," Mayes said. "The house is surrounded;
he won't escape this time. Light a lamp."

Rogers complied. He admitted that his son was upstairs.

Mayes called to the youth: "Come down, Bob, and sur-
render."

"Come up and get me 1 " came the defiant answer.

Deputies W. C McDaniel, Phil Williams, and C. E. Smith
volunteered. The frightened Collier and his wife, clad only in
night clothes, fled from the house into the darkness and ran to
the home of a neighbor.

108 LAW WEST OF FORT SMITH

McDaniel took the lead with Williams behind him, and Smith
brought up the rear. The father went ahead, carrying the lamp.
At the top of the stairs Bob Rogers met them with a revolver
in each hand.

"Drop those guns!" ordered McDaniel.

Bob fired. The bullet struck McDaniel in the heart, killing
him instantly. Rogers' second bullet tore Williams' right arm
from wrist to elbow. He staggered against Smith, and both men
lost their balance and fell back down the stairway, followed
by the frightened father.

Bob Rogers seized the dead marshal's ammunition belt and
his Winchester. He began pumping lead through the floor at
Mayes and the possemen in the room below, and they were
forced to withdraw outside. From all points, then, the posse
opened a hot, continuous fire into the upper part of the build-
ing. After a few minutes the elder Rogers was sent in to talk
to his son and ask him again to surrender.

"I'll give up," the young outlaw replied, "ajter I am killed!"
* The posse opened another barrage. Over three hundred bullets
were fired into the upper story of the house. The inch boards
offered little resistance, and after the battle it was discovered
that some of the rafters supporting the roof had been cut in
two and hardly a square foot of the upper half of the structure
remained unripped by bullets. 20 By some miracle, the desperado
survived.

Finally he called to Mayes: "If you let me bring my gun, 111
come out."

"Keep the muzzle down," the marshal advised.

Dawn was just breaking, but it was still too dark to define
objects easily. Mayes and his men had taken cover behind a
pile of poles about twenty yards from the front of the house.

The outlaw opened the door and peered out; he saw no one.
He carried McDaniel's Winchester, muzzle downward. When
he had advanced a few steps into the open, Mayes rose from
behind the woodpile. Rogers stopped abruptly.

"Ajter 1 Am Killed/" 109

"Do you have a warrant for me?" he called.

"We don't need one," Mayes replied.

The rifle in the youth's hands jerked up. Instantly a dozen
guns blazed, and Rogers, with a groan, fell forward riddled
with lead.

VIII

THE INFAMOUS COOKS

DURING HIS LAST FIVE YEARS ON THE BENCH JUDGE
Parker waged an incessant war against these outlaw gangs in
the Indian country. On January 17, 1895, a young desperado
was arraigned before him on twelve counts of armed robbery.

His full name was William Tuttle Cook, but from June, 1894,
until his arrest and capture on January 11, 1895, he was known
the length and breadth of the United States as Bill Cook, leader
of the vicious Cook gang. With him rode such unenviable lights
as Cherokee Bill, Lon Gordon, Henry Munson, Sam McWil-
liams alias Verdigris Kid, George Sanders, Jess Snyder, William
Farris, Thurman "Skeeter" Baldwin, Elmer "Chicken" Lucas,
Curtis Dayson, and Jim French, former member of the Jim
Reed-Belle Starr gangs and onetime sweetheart of the outlaw
queen. 1

Bill Cook was a docile-appearing man. He was five feet and
nine inches tall and of stout but not athletic build. He had a
full, boyish face, ruddy complexion, light brown hair, a small
mustache, and blue eyes. The fifteen hundred people who came
to get a glimpse of him in his cell at the Fort Smith jail were

111

112 LAW WEST OF FORT SMITH

amazed to find a mild-mannered outlaw. While he was being
interviewed and photographed by newspapermen, one young
lady sketched him, and many exclaimed: "Surely this isn't the
famous Bill Cook? Why, he doesn't look like a bad man!" 2

They overlooked the fact that he had headed an outfit so
tough that it became unsafe for the railroad operating between
Fort Smith and Coffeyville to carry any valuable express mat-
ter or passengers over the route at night; that for the six-month
period his gang functioned the company changed its schedule,
going through only in the daytime and then under heavy guard;
that he had raided all that country lying between Fort Gibson
and Wagoner and Muskogee, and all the towns along the At-
lantic and Pacific Railroad as far north as the Kansas line; that
he had become so ravenous and elusive that Washington was
on the verge of sending out Regular Army detachments to assist
the marshals and Indian police in rounding up his gang; and
that at the time of his arrest the government, railroads, and
express companies had placed on his head rewards totaling over
$7000. 3 All this he had accomplished before he was twenty-one.

James Cook, his father, was a Southern man. He had fought
in the Civil War on the Northern side. His mother was a quarter-
breed Cherokee. They had married in the territory shortly after
the war, settling on Grand River, four miles north of Fort Gib-
son, where Bill Cook was born December 18, 1873. When he
was nearly three, the family moved five miles up the river.
Here his brother Jim was born. In 1878 his father died; his
mother rented the place and moved to Arkansas near Fort
Smith, but she soon married again and returned to the old home
on Grand River, later moving to Fourteen Mile Creek, where
she died when Bill Cook was fourteen. 4

For a while Bill stayed with his stepfather, then went on his
own. He worked on cattle ranches in the Osage and Cherokee
Nations, and learned "to ride, shoot, drink and play cards,"
He spent his earnings for whisky and sold it to the Indians.
In 1892 he fled to New Mexico to avoid arrest on a warrant

The Infamous Cooks 113

charging sale of liquor, but he was picked up when he returned
to the territory in 1893 and sentenced by Judge Parker to forty
days in the Fort Smith jail.

In 1894 he was charged with horse stealing, and again be-
came a fugitive. That same year his brother Jim got into trouble
in the Cherokee Nation. He fled to the Creek Nation to avoid
arrest by the Cherokee Indian police, but a warrant was issued
for him at Fort Smith charging assault with intent to kill, and
the marshals began to hunt for him too. He joined Bill, and
together they organized a band of thieves that within two
months stole more than fifty head of horses from the country
between Wagoner and Muskogee. 5

On June 16, Bill and Jim Cook, in company with Cherokee
Bill, started for Tahlequah to collect their share of the Cherokee
Outlet money. On June 1, 1894, more than a year after the
sale of the Outlet to the government and nearly nine months
after its opening to white settlement, treasurer E. E. Starr
of Fort Gibson, with Captain Cochran and fifty picked gunmen
to guard him, had proceeded to Tahlequah from Fort Smith
with $1,000,000. On June 4 the payment had commenced,
averaging $265.70 to each member of the tribe.

Cherokee Bill was also a fugitive from the Cherokee Nation.
The trio proceeded to the home of Effte Crittenden, a friend of
the Cook family who lived on Fourteen Mile Creek within
fifteen miles of Tahlequah. They wrote her an order for their
money, and she went to Tahlequah and returned with it. 6 The
Indian police, realizing the three fugitives must be hiding near
her place, followed the woman home. They had divided the
money and were getting ready to leave when the officers opened
fire on them. In the gun battle that followed, Sequoyah Hous-
ton, a Cherokee marshal, was slain, Erne Crittenden's husband
Dick and his brother Zeke were wounded, and Jim Cook, too
badly shot to escape, was captured. 7 Bill Cook and Cherokee
Bill rode to freedom. During the next few months so many rob-
beries were committed in the Cherokee and Creek Nations

114 LAW WEST OF FORT SMITH

that the columns of the border press and great Eastern dailies
teemed with hair-raising tales, fiction as well as fact, about
"Bill Cook, the Famous Outlaw."

On July 14, 1894, the Muskogee-Fort Gibson stage was held
up by six masked robbers in the Arkansas River bottoms, and
the passengers relieved of their money and watches. An hour
later, William Drew, a prominent Cherokee, was held up on
the other side of the river and robbed of $80 and a fine belt
and pistol. Two days later, on July 16, Bill Cook, Cherokee
Bill, Lon Gordon, Sam McWilliams, Henry Munson and Curtis
Dayson held up the Frisco train at Red Fork.

Soon after 10 o'clock on the morning of July 31, five armed
men rode into Chandler, Oklahoma Territory, across the Creek
Nation line, and dismounted back of the Lincoln County bank.
Three rushed inside while the other two stood guard at the doors
with Winchesters. Two men covered President O. B. Kees and
his brother Harvey Kees, the cashier, and demanded that they
"cash up purty damn quick." The third man ran into the private
office where teller Fred Hoyt was lying sick. The bandit or-
dered him to go to the safe and unlock it. Hoyt, already weak
from his illness, fell on the floor in a faint, and the bandit
fired at him, the bullet fortunately missing him and tearing into
the floor.

The guards outside called that it was time to go, and the
three men grabbed between $200 and $300 that lay on the
counter and ran to their horses. J. M. Mitchell, a barber across
the street, sounded the alarm and was killed by one of the
guards. The bandits left the city with a posse of citizens and
two deputy sheriffs in pursuit. Numerous shots were fired. One
of the gang, Elmer Lucas, was shot in the hip and captured.
The others scattered and disappeared in the hills.

At ten o'clock in the evening of September 2 1 the gang raided
the J. A. Parkinson & Company store at Okmulgee, taking
over $600. On October S they crossed the Arkansas at the
ferry between Muskogee and Fort Gibson, and held up a traveler

Isaac Charles Parker, just
past 35 years of age when he
arrived at Fort Smith in 1875
and took over as the youngest
judge on the federal bench,
where he presided for 21 years.
His motto was "Do equal and
exact justice."

The Indian Territory, after the Civil War and the ceding of the Western
lands of the Five Civilized Tribes to the Plains Indians, was called "Robbers'

i S 3 g s

:ri|^
Jliliil

s - - -r a M

Tw w
-^ CJ

rt

tllillo

5b^ o ^^ <u

!T" ?S -. E l^*-l fl

! -a a?

a" 2 .a

Iis. s l^

Each Indian tribe had its own tribal laws and sovereign government, anc
dispensed punishment with the whip and the rifle; but their laws did not appl^
to the white man. Above is a Choctaw Nation execution.

At left is a photograph oi
the last execution in the
Seminole Nation under triba
laws. After January 1 ; 1898
the U.S. courts in the Indiar
Territory had exclusive juris-
diction over all civil anc
criminal cases and persons

V-~. s.'n'f
' ? il?fl

H-

t ,

* '

Belle Starr, "The Petticoat Terror of the Plains/ 1 with Blue Duck, one of her

sweethearts.

"r-\

.5M*

Belle Starr's saddle, now in the Fott Smith museum, is alleged to be the one
she was riding the day she was shot from ambush.

Belle Starr's grave at
Younger's Bend. On the
tombstone is engtaved an
image of her favorite horse,
a bell and a star, and the in-
junction to "Shed not for her

Some were taken alive: here is the Rufus Buck gang in chains, hanged as a
quintet on the Fort Smith gallows, July 1, 1896.

And some were taken dead: here lie four of the Daltons killed in the Coffev-

'1

Taking his cue from the
Dalton gang, Bob Rogers or-
ganized and led one of the
fastest-riding, most danger-
ous bandit gangs in the Terri-
tory, until a posse riddlec
him with lead.

William Tuttle (Bill)
Cook was known the length
and breadth of the United
States as the leader of the
vicious Cook gang, until
Judge Parker sentenced the
captured outlaw to 45 years'

it

The officers' quarters at the Old Fort became the courtroom, and the basement
was converted into a jail.

cite Parker took up private quarters in the Old Fort stone commissary

.*.->, "iv*- -^?

At the time of the Judge's arrival, Fort Smith was listed as the chief cente
of commerce and trade ; but it offered little in the way of comfort or progress

L* 1 *! *L"*

hfct*

b >-.*. *T V.

Within 10 years he saw the dirty frontier hamlet become a town with sidewalks

Henry Starr, who at 18 had been a
crack cowboy and looked like a man who
could be trusted, became leader of the
Starr gang and a notorious bank robber.

Paul Curry, the 14-year-old youth who
wounded and captured Starr after a dou-
ble bank robbery, posed for this picture,
holding Starr's rifle.

"Kid" Wilson, companion
of Starr in robberies, looked
like a mere boy, was a ruth-
less outlaw.

Ned Christie (dead), '
full-blooded Cherokee, wa;
the most dangerous bandi
the marshals had to go afte

K ^ ,__* &

* "- - W
,L *< '

Here are 10 members of the 1 7-man posse that brought in Christie. They had
to use a three-pound cannon and a half-dozen sticks of dynamite to blast him
from his hideout.

The hanging of Cherokee Bill on the Fort Smith gallows brought masses
of people only too relieved to see the doomed man swing. Here is one artist's

05
O
Qi

O

CD
UJ

a:

2:

O

ilil

s -

i S

m

TI

Heck Thomas, deputy U.S.
marshal, once surprised
Judge Parker by bringing in
32 prisoners in a single group.
Nine were found guilty of
crimes punishable by death.

William H. H. Clayton,
chief prosecutor for the fed-
eral court, prosecuted over
10,000 cases during his 14
years' service, convicted 80
for murder, and saw 40 of

Executioner George Male-
don, who achieved fame as
the ''Prince of Hangmen,"
seldom smiled, took a natural
pride in his ability to always
break the neck of his victim,
and after retirement toured
the West with rope and other
gruesome instruments of his
office.

A

The last person to die on
the Fort Smith gallows was
26-year-old James C. Ca-
sharego, alias George Wilson,
on July 30, 1896. In pro-
nouncing the death sentence,
the eloquent Judge Parker
said: "Even nature revolted
ae-ainst vour crime ..."

"3

Symbols of Crime and Pun-
ishment: The Winchester auto-
matic, at left, once belonging
to Henry Starr, was a spokes-
man for lawlessness. The chair,
below, was Judge Parker's, from
which he dispensed justice and
brought the law west of Fort
Smith.

The Infamous Cooks US

near Fort Gibson and relieved him of $19. The following day
they robbed Ed Ayers, a Cherokee, of $120 on the road.

On October 10, "the record of bold and desperate deeds" was
broken when the gang held up and robbed the depot of the
Missouri Pacific Railroad at Claremore and, less than two
hours later, relieved the agent of the Missouri, Kansas-Texas
of his "surplus" at Choteau, twenty miles away.

On Saturday night, October 20, they exceeded even this feat
with the wrecking and robbery of the Kansas City and Missouri
Pacific express at Coretta, a blind siding five miles south of
Wagoner:

The train was going at a speed of about twenty-five miles per
hour and when within 100 feet of the switch a man sprang from
behind an embankment and threw the switch for the side track,
running the train into a string of empty box cars. Engineer James
Harris applied the air and reversed his engine, but did not have
time to jump before the engine struck the cars on the siding. The
robbers commenced firing at the train and engine as soon as it
struck the siding. Two of the robbers ran to the engine and
commanded Engineer Harris and Fireman Cottrell to come down,
and as soon as they had dismounted, marched them to the
baggage and express cars, where, by firing through the doors, they
forced Messenger Ford to admit them. Meanwhile, two more of
the robbers had taken up positions at the rear of the train to
prevent anyone escaping through the rear doors of the sleeper,
two more mounted the platform between the smoker and the
baggage car and two more the platform between the first and
second coaches, all keeping up a continual firing. During this time
the two in the express car were ransacking it. They got all the
money in the local safe and Messenger Ford's gun, and then com-
manded him to open the through safe. He told them it was im-
possible, and after hearing his explanation as to how it was
locked, they left the express car.

The two robbers on the front platform started through the
second coach demanding money and valuables. As soon as they
reached the rear of the coach the two men on that platform started

116 LAW WEST OF PORT SMITH

through the second coach. When they were about half way
through this car, a freight train following close behind whistled
and Bill Cook, the leader, who had all the time remained outside
issuing commands, swearing at the passengers and shooting, called
for all hands to come out. The men on the cars jumped out, and
when all were outside, fired a last volley at the train and disap-
peared in the darkness.

Jack Mahara, an advance agent for Mahara's minstrel Com-
pany, was struck in the forehead by a bullet and seriously injured.
Walter Barnes of Van Buren, Arkansas, was slightly injured by a
piece of bullet striking him in the cheek . . . Special officers Hel-
mick and Dickson of the Missouri Pacific were on the train, also
Deputy Marshals Heck Bruner and Jose Casaver, but the attack
was so sudden that they were all covered by Winchesters in the
hands of the bandits before they had time to make a move.
Casaver lost a watch and his six-shooter in the fracas . . . The
train was backed to Wagoner for assistance and to give medical
attention to the injured. The entire train was completely riddled
with bullets, every window being broken and the engine cab shot
to pieces, even the steam gauge and gauge pump being shot away. 8

On October 25, the Vinita Indian Chieftain reported:

The Cook gang . . . has opened a thriving highway robbery
business along the road between this city and Fort Gibson, and
within the past week three "knights of the grip" have contributed
towards its support. James Wood of the Shibley-Wood Grocery
Company, Van Buren, was met by two men near Menard and
relieved of all his money and a valuable watch. Later, L. A. Wake-
field of the Jacob Bold Packing Company, Kansas City, and
F. B. Mittong of the Daughtery-Crouch Drug Company of St.
Louis, were confronted near the same place by two highwaymen
and made to fork over what money they carried. The two latter
gentlemen had taken the precaution to leave their watches and
all their money except $15 at Fort Gibson, for which they were
roundly reprimanded by the outlaws.

On the same date a dispatch was received by the marshal's
office at Fort Smith that the gang were again in the vicinity

The Infamous Cooks 117

of Claremore and intended to sack the town. Citizens cooperat-
ing with Indian police and aided by the deputy marshals and
special officers of the railway and express companies, found
themselves "unable to encompass the gang or drive its mem-
bers from the country." 9 "There is apparently no effort being
made to capture the gang or suppress their depredations,"
charged the Eagle-Gazette on November 1, 1894, after repeated
appeals to the United States Army to intervene. "The capture
of the desperadoes responsible for the depredations in the Ter-
ritory cannot much longer be delayed." And Dew M. Wisdom,
Union Agent at Muskogee, sent another telegram to the Office
of Indian Affairs, in which he stated:

My police force is not equal to the emergency and Marshal
Crump at Fort Smith writes that he has not money to keep
marshals in the field for a campaign. Affairs here are in a desperate
condition; business is suspended and the people generally in-
timidated and private individuals robbed every day and night. I
renew my recommendations and earnestly insist that the govern-
ment, through the proper channel, take the matter in hand and
protect its court and citizens of the United States, who are lawful
residents of the territory. Licensed traders are especially suffer-
ing and they are here under suspense. The state of siege must be
broken and something done to save life and property. 10

The telegram was referred to Secretary of the Interior Hoke
Smith, who called the attention of the Secretary of War to
the numerous previous requests. Marshal Crump was sum-
moned to Washington to give a full account of the holdups of
the Cook gang, and Attorney General Richard Olney thought
that the government "should do everything legitimately within
its power to prevent the interruption of interstate commerce
and the detention of the United States mails."

"Abrogate the treaties; abolish the tribal relations; establish
a territorial government," replied Secretary Smith. "If a terri-
torial government were established, judges would be sent there

118 LAW WEST OF FORT SMITH

to administer the laws and the governor who was appointed
could see that they were enforced."

"The Cook gang must be killed out at once with Winchesters,
at the cost of the government," said Marshal Crump,

The Attorney General authorized Crump to post a reward
of $250 for each known member of the gang and advised Judge
Parker "if these efforts fail, it is assumed that the military will
be called into requisition." C. J. Harris, Principal Chief of the
Cherokees, offered $500 for Bill Cook's head. "All the Light-
horse guards and all Indian police have been summoned for
duty, and all United States marshals of the Territory have
been put on the trail," reported the Eagle-Gazette of Novem-
ber 8. "In addition, there are special officers of the railway
and express companies making a total of between five hundred
and six hundred men ready to commence concerted action im-
mediately."

The following day, November 9, the Cook gang held up the
Schuf eldt and Son store and post office at Lenapah, and Chero-
kee Bill deliberately shot and killed a prominent citizen, Ernest
Melton. Standing in the store, looking through the glass door,
he saw Melton watching from a window of a restaurant across
the street. "Without warning he fired. The ball struck Melton
just below the eye and came out the back of his head." n

Judge Parker issued his ultimatum: "Bring them in alive
or dead!"

The marshals and Indian police surrounded three of the
gang in the house of Bill Province, fourteen miles west of
Sapulpa. Lon Gordon and Henry Munsen were shot and killed
as they fled, and Curtis Dayson was captured. He was taken to
Fort Smith and tried with Elmer Lucas, who had been cap-
tured in the Chandler bank robbery. Judge Parker sentenced
Dayson to ten years and Lucas to fifteen years in the peniten-
tiary at Detroit. 12 Bill Province was brought to Fort Smith and
questioned as to the possible hide-outs of the rest of the gang,

The Infamous Cooks 119

and six other citizens of the Creek Nation were arrested for
harboring the bandits on various occasions.

The marshals began making the territory hot for Bill Cook,
He decided to cool off in Texas. En route the gang held up a
German emigrant named Beckley, who was driving his family
from Wewoka in the Seminole Nation to Tecumseh, Oklahoma.
They robbed him of his valuables and brutally assaulted his
eldest daughter, and one of the band unhitched a horse from
his wagon and rode off with it. 13 The marshals picked up their
trail and wired ahead to Texas authorities. Texas Rangers in-
tercepted the gang in Clay County near Wichita Falls; Baldwin,
Snyder, and Farris were captured and returned to Fort Smith,
and Parker sentenced Baldwin to thirty years and Snyder and
Farris to twenty years each in the Detroit prison. 14

The remaining members of the Cook gang never united.
Hunted like a wolf with a fabulous price on his head, Cook
headed for Mexico. The Rangers were still on his trail, so he
rode west. Captain Bill McDonald gave his description to New
Mexico officers, telling them he was headed in their direction;
and on January 11, 1895, in a sod house on an isolated cattle
ranch a few miles southeast of Old Fort Sumner, where Pat
Garrett had killed Billy the Kid, Sheriff C. C. Perry of Chaves
County and two deputies surprised Bill Cook and took him
without a fight. 15

Cook arrived at the Frisco depot at Fort Smith at one o'clock
in the morning of January 22 in custody of the New Mexico
officers. Notwithstanding the lateness of the hour, a large crowd
had gathered to see him escorted to jail. In less than ten min-
utes after he stepped off the train he was securely behind bars,
and the next day a full force of guards were kept busy manag-
ing the throng bent on seeing the noted outlaw.

When arraigned before Parker, Cook entered a plea of not
guilty to all charges against him. At his trial, however, he
offered no defense, except on two counts, and the evidence

120 LAW WEST OF FORT SMITH

against him was so clear even in these cases that his attorneys
were unable to do anything for him. On February 12 the jury
brought in a verdict of guilty, and Parker sentenced him to
forty-five years' imprisonment at Albany, New York.

While Cook was still in jail awaiting transfer to prison, three
other members of his gang Jim French, George Sanders, and
Sam McWilliams, alias Verdigris Kid were brought in to Fort
Smith, shot to death.

French was a half-breed Cherokee, his mother being a white
woman. He had graduated with honors from the seminary at
Tahlequah and learned the saddler's trade. In an altercation at
Fort Gibson in 1891 he killed a Negro, and from that time on
stole horses and sold whisky until after the big payment, when
he joined the Cook gang and took part in their numerous hold-
ups and train robberies. After the Texas fight he returned to
Catoosa, his old stamping grounds, where he had first made love
to the outlaw queen. He joined forces with a small-time burglar
named Jess Cochran, alias Kid Swanson, and on the night of
February 7, the pair broke into the W. C. Patton & Company
general store. Too late they discovered the manager, Sam Irvin,
and a night watchman named Wilkens on hand and armed.
The watchman blew off Cochran's face with a shotgun, and
French opened fire on Irvin with a Winchester. Irvin sank to
the floor, and though fatally wounded, raised himself on one
arm and fired two bullets into French's neck below the ears.
The outlaw dropped his gun and fled from the store with blood
spurting from his wounds. He mounted his horse and rode to
a house three-quarters of a mile away, ran inside, and fell on
the floor before the fire. The frightened occupants of the house
hurried to Catoosa and reported what had happened, and a
posse proceeded to the place at once. They found French dead
on the floor. He had fallen with his body half in the fireplace.
His boots were burned off and his feet and legs half-burned
away. 16
Irvin died at ten o'clock the next morning. He was given a

The Infamous Cooks 121

Masonic funeral and buried at Vinita. The remains of the two
outlaws were shipped by train to Fort Smith for identification.
Cochran's body was identified en route at Claremore and left
there. The body of Jim French arrived at Fort Smith on Satur-
day morning, February 9, and for several hours lay in an open
coffin at the United States jail. After it had been satisfactorily
identified, it was turned over to a brother, who took it to Fort
Gibson for burial.

At eight o'clock hi the morning- of March 28, Sanders, Me-
Williams, and a youth named Sam Butler rode into Braggs, a
small town on the railroad nine miles east of Fort Gibson,
and held up T. J. Madden's store. They were "taking things
easy and had picked out a suit apiece" when warned of the
approach of John Manning and Hira Stevens, Indian deputy
sheriffs. They ran to the door. Butler fired first, killing Man-
ning's horse. The deputies returned the fire almost simultane-
ously, and McWilliams fell dead, shot through the center of
the breast. Sanders and Butler retreated toward their horses,
keeping up a steady fire. Joe Morris, a clerk of Madden's, tried
to intercept them and was slain for his efforts. At this moment
Deputy Marshal Ed Barbee arrived on the scene. He ran be-
tween the deputies and the outlaws, grabbed up McWilliams'
Winchester, and joined the fight. Sanders died with a bullet
hole in his temple and several wounds in his body. Butler
reached his horse and escaped. The dead outlaws were taken
to Fort Smith and turned over to Marshal Crump. The guards
brought Bill Cook up to see the bodies. Laying his hand affec-
tionately upon the coffin of his former comrade, Sam McWil-
liams, he said: "This is the Kid." 17

A warrant was issued at Fort Smith charging Sam Butler
with the murder of Joe Morris. On the night of August 1, 1895,
Deputy Marshal John Davis trailed Butler to the Henry Cham-
bers place near Island Ford on the Verdigris River, the home
of Butler's wife and mother. When Davis approached, Butler
was lying under an apple tree. The moment he recognized the

122 LAW WEST OF FORT SMITH

deputy, he sprang to his feet and fired, the ball striking Davis
under the second rib on the right side. Davis fell from his horse,
but regained his feet and returned the shot, striking Butler
in the breast and killing him instantly. Davis died an hour
later. 18

Cherokee Bill became the most wanted outlaw on the mar-
shals' list.

His real name was Crawford Goldsby. He was born at Fort
Concho, Texas, February 8, 1876. His father, George Goldsby,
was a soldier in the Tenth Cavalry, U. S. Army, of Mexican
extraction, mixed with white and Sioux; his mother, Ellen
Beck, was half Negro, one-fourth Cherokee and one-fourth
white. His parents separated when he was seven, and he was
raised by an old colored woman named Amanda Foster at Fort
Gibson. At the age of twelve he killed his brother-in-law in a
quarrel over some hogs. At eighteen he was a lusty, burly,
brawling fellow who could not be curbed. Though charged with
the slaying of agent Richards in the robbery of the depot at
Nowata, he was never indicted. He was also alleged to have
killed a young man named Henderson and wounded a brake-
man on a freight train at Fort Gibson in the summer of 1894.
He was on the scout for firing three bullets into the body of
Jake Lewis, a young Negro with whom he had quarreled at a
dance, when he joined the Cook gang. After that his crimes
became so numerous that "working up cases against him be-
came unnecessary, and no effort was made to get evidence."
The problem was to effect his arrest. 19

That he killed principally for the love of shedding blood was
apparent from the manner in which he shot down Ernest Mel-
ton, and though rewards offered for him aggregated $1300, he
was more dangerous and fierce than his white companion, Bill
Cook, and few of the officers who pursued him cared to engage
him in combat.

Only once did they make contact with him after the breakup

The Infamous Cooks 123

of the gang in Texas. Marshals Heck Thomas, Heck Bnmer,
and Burl Cox had been on his trail for days when late one eve-
ning they sighted him riding to the home of his sister, who
lived near Nowata. As the outlaw came within range of the
point where the officers were concealed, B rimer fired at him,
but missed. The outlaw's horse was shot from under him in a
running fight that followed, but he escaped, leaving them with-
out a doubt that he would fight to the last, no matter how
great the odds, and his hat as a trophy.

It remained for Deputy Marshal W. C. Smith to work a
scheme for his capture in which a dusky maiden with whom
Cherokee Bill was infatuated was to play an unwilling part.
The girl was Maggie Glass, a cousin of Isaac Rogers, a Chero-
kee who had done considerable service as a deputy under Mar-
shal Crump. Smith got Rogers to invite the girl to his house for
a visit and also to extend an invitation to Cherokee Bill. The
arrangements were made, and on the evening of January 29,
1895, Bill came to see the girl and was cordially received.

Maggie, however, suspected treachery and warned Bill of
his danger, but the outlaw refused to leave.

"If Rogers makes a play," he said, "I'll show him how long
it takes to commit murder."

He kept close watch on Rogers, but the latter was wily enough
not to tip his hand. While his wife and Maggie prepared supper
he joked with the outlaw, offered him a drink doctored with
morphine, which the latter refused, and otherwise acted the
part of the perfect host. Meanwhile Clint Scales, a neighbor
and ally of Rogers, "dropped in for a visit."

After supper, cards were proposed, and Bill played casino
and talked with the men until past midnight, declining to re-
tire. Toward morning, however, he was induced to lie down
with Rogers.

His host feigned sleep and waited in vain for Bill to close
his eyes in slumber, but every time Rogers moved, Bill was

124 LAW WEST OF FORT SMITH

wide awake, his Winchester ready. After breakfast all were sit-
ting in front of the open fireplace. Bill again held his Winchester
across his lap, and began to talk of leaving.

What happened next is best told in Rogers' own statement to
the editor of the Fort Smith Elevator: 20

It began to look as if the game would surely escape. I didn't
want to kill him; but I made up my mind to kill him if I couldn't
get him in another way. ... I knowed that we had to make a
break on him pretty soon and I was afraid the girl would take a
hand in it when the trouble began, so I gave her a dollar to buy
some chickens at. a neighbors, so as to get her out of the way. I
also sent my boys away, as I had not told them of my plans.

Bill finally took a notion that he wanted to smoke and he took
some paper and tobacco from his pocket and rolled a cigarette. He
did not have a match, so he stooped over toward the fireplace
to light it, turning his head from me for an instant. That was my
chance and I took it. There was a fire stick lying on the floor
near me and I grabbed it up and struck him across the back of
the head. I must have hit him hard enough to kill an ordinary
man, but it only knocked him down. Scales and I then jumped
on him but he let one yell and got to his feet.

My wife grabbed Bill's Winchester and we three tusseled on
the floor a full twenty minutes. I thought once I would have to
kill him, but finally got the handcuffs on him. He then pleaded
and begged me to kill him or release Mm. He promised me money
and horses, all I wanted. Then he cursed. We put him in a wagon
and Scales rode with him and I rode horseback and started to
where Deputies Smith and George Lawson were waiting at
Nowata. On the way Cherokee broke his handcuffs and grabbed
at Scales' gun and Scales had to fall out of the wagon to keep
from losing his Winchester, while I kept Cherokee covered with
my shotgun. . . .

At Nowata, Smith and Lawson took charge of the prisoner,
and that same night landed him behind the bars of the federal
jail in Fort Smith. "The news of his capture spread like wild-
fire, and a sigh of relief went up . . . his captors being regarded

The Infamoits Cooks 125
as having done a noble work for the good of the country. . . ," 21

At his trial for the murder of Melton, Cherokee Bill en-
deavored to prove an alibi but "failed utterly," every witness
he had held up in the Schufeldt store "fully identifying him as
the man who fired the shot that pierced Melton's brain." Argu-
ments in the case began at noon February 26 and ended at ten
o'clock that night. The next morning Judge Parker instructed
the jury, taking only fifteen minutes in his charge, and within
twenty minutes after retiring, the jury brought in a verdict
of guilty. 22

The boy killer simply smiled. But his mother and sister, who
were with him in the courtroom throughout the trial, wept
loudly. "What's the matter with you two?" he snapped. "I ain't
dead yet." And that afternoon, over at the federal jail, Chero-
kee Bill "was engaged in a game of poker with Bill Cook and
several kindred spirits as if nothing had happened." 23

On April 13 he was brought before Judge Parker for sentenc-
ing. Asked if he had anything to say why judgment should not
be passed at that time, he replied, boldly and defiantly, "No,
sir." Judge Parker then continued:

From the evidence in the case there can be no doubt of your
guilt. That evidence shows a killing of the most brutal and
wicked character. . . . Melton was the innocent, unoffending
victim of the savage brutality which prompted the robbery and
murder. From the information that has come to me this murder
is one of three committed by you, and the others were equally
as wicked and unprovoked as this one. The young man you
killed was . . . innocent of any wrong against you. While offend-
ing no one, you shot him down in cold blood. . . . The murderous
act was of the most wanton and reckless character, showing
total disregard of human life.

These murders are not the only crimes committed by you. You
have aided in the commission of many robberies. Your career
recently has been remarkable for the number of crimes you have
committed, and yet how brief has been that career. It has been
scarcely a year since you became a hardened criminal, and your

126 LAW WEST OF FORT SMITH

life of crime, covering as it does, many of the worst crimes known
to law, has all been crowded in that space. Justice has at last
overtaken you, and you have been tried and convicted of several
robberies, and now stand before the bar of this court, to be
sentenced for a crime for which you must forfeit your life. What
a lesson is here to those who have a criminal tendency, or who
entertain a desire to become criminals. The law very soon over-
takes. They are brought to justice, and their lives become a blank
or have to be forfeited to the law. From your criminal career you
are a fit representative of that spirit of lawlessness and murder
which characterizes the age to such an extent that social order
and personal safety are threatened by lawlessness and crime. . . .
Happily for the peace of the country, the whole of the band in
which you belonged has been broken up. Its members have been
brought to justice or have been killed by officers while they were
in the act of committing crimes, or resisting arrest, and this has
all happened to them in less than a year.

Now it behooves you to prepare to meet your fate. You must
reflect on your past life, and fully comprehend its wickedness, and
the injuries that your acts have done others. I have no idea that
you appreciate the enormity of the wrongs that you have com-
mitted, or that you comprehend your condition. Your career of
crime has been a wicked, bold and bad one. You must recognize
this. You must seek forgiveness for it from the author of all
mercy, the good God, whose government is so much higher than
human government that he can and will forgive the worst of
crimes. Then I ask you to consider that no one can doubt the
justice of your conviction, or the certainty of your guilt, so you
can enter upon a new existence with your sins, wickedness and
crime behind you.

Do everything you can to accomplish this end, and lose not a
moment's time. . . .**

Then followed the dread pronouncement, setting June 25
as the date of execution. But Cherokee Bill's attorneys took an
appeal to the Supreme Court, and Judge Parker issued a stay
of execution a few weeks later. 25

The Infamotis Cooks 127

Cherokee Bill "took the sentence very calmly and disclosed
no emotion whatever. The only show which he made that he
regarded the matter more seriously than when he was convicted,
was the absence of his smile." 26

Back in jail, he became morose and unruly. The lower floor
where the condemned were kept was called "Murderers' Row."
The prisoners were allowed the freedom of the floor and permit-
ted to mingle with each other during the day. At night they were
locked in separate cells. Cherokee Bill's conduct affected the
other prisoners. Among themselves they predicted that "some-
thing terrible" was going to happen. Even Bill Cook, while
en route to Albany prison on May 2, expressed the opinion that
"no bars can hold Cherokee."

Few men had escaped from the old jail or the new one since
Parker's arrival at Fort Smith. Many breaks had been halted
in the planning stage, due to the inspection system put in effect
by the first head jailer, Charley Burns. Routine inspections had
turned up everything from iron knucks, three-cornered files,
knife blades, slingshots, and pistols to tunnels and sawed bars.
Most of the weapons were smuggled in by friends, wives, and
sweethearts in cakes, pies, loaves of bread, and jugs of butter-
milk, or hidden under petticoats. Sometimes these persons used
money and bribed a guard or trusty. Though poorly paid, the
guards rarely took a bribe. The few who did lost their jobs,
and at least one was arrested and sentenced to three years in
the penitentiary. 27

On December 1, 1889, five men managed to escape by cut-
ting off the heads of the bolts to the lock on one cell, sawing
the heavy chain holding the door that let them into the guards'
corridors; then climbing through a steel trap door into the
attic of the jail over the third tier of cells, passing into the
attic of the old courthouse adjoining, and crawling through a
hole between the roof and ceiling of the back porch, where they
let themselves down on blankets tied together. It was the first

128 LAW WEST OF FORT SMITH

time anyone ever escaped from the new jail, and was recorded
as the biggest break in the court's history. The five convicts
were never recaptured. 28

J. D. Berry, former deputy sheriff of Franklin County, Arkan-
sas, was head jailer during the stay of Cherokee Bill, Bill Cook,
and others of their ilk, and was perhaps the most alert and
competent of any who served hi this capacity during the tenure
of Parker. When he took charge on November 1, 1894, there
were 209 prisoners in jail, and the number increased during
his term to 244 in February, 1896. Hardly a day passed that
some scheme was not afoot for a single escape or a wholesale
delivery. Matters grew worse following the confinement of
Cherokee Bill.

Berry read the mood of the prisoners, sensed trouble brew-
ing, and ordered a search of the entire prison. In Cherokee
Bill's cell the guards found several .45 cartridges. They found
a .45 revolver in the bathroom in Murderers' Row and arrested
Sherman Vann, a Negro trusty serving ninety days for larceny,
who confessed to a conspiracy on the part of several prisoners to
break jail and to smuggling in the weapon and ammunition in
a bucket of lime. 29

They failed, however, to find a second gun that had been
smuggled to Cherokee Bill. The killer had hidden it in the
wall of his cell where he had removed a loose brick. The inside
half of the stone had been broken off and the whitewashed end
replaced, and the trick was not discovered*

At seven o'clock in the evening of July 26, guard Lawrence
Keating and turnkey Campbell Eoff began checking In the
prisoners for the night. The two rows of cells ran north and
south on each side of the "bullpen." By pulling a lever con-
nected to a long bar all the cell doors on each side could be
dosed and fastened at the top. It was Eoff s job, after pulling
the levers, to enter the corridors flanking the cells and lock each
door separately with a key. Guard Keating, wearing his six-
shooter, walked along outside the corridor to ascertain that

The Infamous Cooks 129

each prisoner had closed his cell door so that the locking bar
would work properly. The bar could be thrown, however, by a
stick or similar object in the hands of any of the prisoners in
either row of cells. Cherokee Bill shoved up the bar with the
barrel of his smuggled revolver and released all the doors to the
cells on his side after Eoff had entered the corridor and locked
the door behind him.

Eoff locked all the cells on the east side, Keating keeping
pace outside the corridor. When the turnkey passed around the
south end and started locking the doors of the west row of
cells, Keating was even with him. Cherokee Bill waited with
gun ready.

In the cell next to the outlaw was Dennis Davis, a half-
witted Negro who had murdered his best friend. The keyhole
of his cell lock had been stuffed with paper. When Eoff inserted
the key, it lodged in the lock, and he called to Keating:

"Hold up. Something is wrong here."

As Eoff leaned forward to examine the lock, Keating stepped
closer to the bars, and for a moment his attention was attracted
to the turnkey. At that instant Cherokee Bill leaped from his
cell and shoved the muzzle of his revolver between the bars at
the guard.

"Throw up your hands and give me that pistol damned
quick!" he commanded Keating.

The guard reached for his six-shooter instead, and Cherokee
Bill shot him through the stomach. Keating ran toward the
front of the jail and Cherokee Bill fired a second shot at him.
He fell dead at the foot of the stairs leading to the jailer's office.

When Cherokee BUI leaped from his cell, Eoff tried to jerk
the keys from the lock. Failing again to dislodge them, he left
them hanging and ran around on the other side of the door.
George Pearce, one of the ringleaders of the desperate plot, had
come out of his cell when Cherokee Bill threw the brake. As the
young killer followed Eoff, firing four shots at him, Pearce,
thinking Eoff had the keys, joined in the chase, brandishing a

130 LAW WEST OF FORT SMITH

broken table leg for a club. George Lawson happened to be at
the door of the jail and ran in. He emptied his revolver at
Cherokee Bill, chased him to his cell, drove Pearce back around
the south end of the row of cells, and saved EofF s life.

Guards Will Lawson, Bras Parker, Tom Parker, and William
McConnell were soon in the jail, and jailer Berry arrived to
take command. Heck Bruner and several other deputies heard
the shooting and hurried to the jail to join the fight. They
began a sniping match with Cherokee Bill. Every time the
outlaw fired, he gobbled. It was an unearthly sound, half way
between the bark of a coyote and the gobble of a turkey cock.
It was the death cry among the territory Indians. 30

The great excitement prevailed from the time of the first shot
which killed Keating until late into the night. Crowds gathered in
an incredibly short space. They heard the cannonade going on
within the jail and some were frantic. Not less than 100 shots were
fired, Winchesters, shotguns and revolvers being brought into play.
To the person entering the jail after the firing ceased, excitement
and confusion was apparent at every hand. Firearms were at
every step and the place was redolent with the smoke of gun-
powder. The prisoners were for the most part badly frightened
and huddled in the corners of their cells. On the west side in the
outside corridor, were twenty or more men, all armed to the teeth.
Standing in the inside corridor was the vile murderer himself,
Cherokee Bill, Captain Berry, the jailer, was vainly endeavoring
to induce him to tell who furnished him the weapon. A steady
refusal was the only response. . . . Outside the crowd continued
to increase until it assumed alarming proportions. The cry "Lynch
him!" "Hang him!" was frequently heard. The guilty wretch him-
self heard the shouts; he saw the temperament of the men; he
feared he was about to be brought out to a terrible death. . . , 31

Marshal Crump arrived from his home in the suburbs and
took personal charge of the situation. He ordered the cell
blocks surrounded. Keating was a popular citizen of Fort

The Infamous Cooks 131

Smith and one of the oldest officers of the court. He had served
as guard at the jail for nine years. "Vengeance boiled in many
breasts" and a "short but earnest consultation was held . . .
to kill the outlaw then and there." One word from Crump and
"justice, swift and certain," would have been "meted out," but
the outlaw pleaded with the officers:

"I didn't want to kill him; I wanted my liberty. Damn a
man who won't fight for his liberty! If I hadn't shot him, he
would have shot me. If I could have captured the jail ... no
one would have been killed."

He then "pleaded for the protection of the law which he
had so many times and so lately outraged/' and told Marshal
Crump, "If you promise they won't kill me, I will give up my
pistol."

"Shooting is too good for him," ordered Crump. "Save him for
the gibbet."

The killer surrendered his weapon. His cell was searched
thoroughly before he was handcuffed and chained and locked
back inside, and the jail cleared of spectators. 32

The rest of the night the marshals and guards worked about
the jail, dispersing the crowds and discouraging talk of lynch-
ing. District Attorney James F. Read also made his way quietly
among these enraged citizens, arguing against mob violence,
promising that the case would be vigorously prosecuted and
that the crime would not go unavenged; and the night passed
without incident. But these people remained in a waiting, sullen
mood. They talked of nothing else in public places the whole
week that followed, and Read moved swiftly to make good
his promise.

The autumn term of court opened Monday, August 5. For
the first time in three years the petit and grand juries were
empaneled on the opening day, and the first case taken up was
the murder of Keating. The grand jury returned the quickest
indictment in the history of the court, considering the evidence

132 LAW WEST OF FORT SMITH

only thirty minutes, and at one o'clock in the afternoon Chero-
kee Bill was arraigned before Judge Parker. 83

When his shackles were removed, the killer threw back his
head with a quick jerk, taking in every detail of the courtroom
at a glance. What he saw was a dozen armed marshals and a
court bailiff with a heavy billy. Finally an expression of resig-
nation settled over his Satanic countenance, and he entered a
plea of not guilty.

Parker set his case for the following Thursday, August 8,
and on that date Cherokee Bill was again brought into court
in chains and under heavy guard.

Never had the courtroom been jammed with so many visitors.
His defense attorney fought the case with every "hook and
crook" from the beginning. He made a motion for continuance
on grounds that public sentiment and prejudices of the people
of Fort Smith would not allow his client to get a fair and im-
partial trial at that time, and filed a demurrer alleging that
the court did not have jurisdiction because the killing had oc-
curred in jail. Judge Parker ruled that "there is no question
as to the jurisdiction of the court in this case"; he became
"highly indignant" that a fair and impartial trial could not be
had in his court and stated that "the allegations in the demurrer
are wholly false and without foundation." He ordered the panel
of jurors called. Twelve men who lived no closer than forty
miles to Fort Smith were chosen. He questioned each man
closely and, satisfied that they were not prejudiced and could
render a verdict in accordance with the law and the evidence,
pronounced them "qualified jurors."

The trial lasted three days, the prosecution being handled
by District Attorney Read's able assistant, J. B. McDonough.
In the closing arguments in the case, McDonough delivered the
most lengthy, hair-raising appeal ever made to a Fort Smith
jury.

First he spoke of the evidence the prosecution had produced,
then of the renegade band of which the defendant had been a

The Infamous Cooks 133

member and the reign of terror they had spread "under the
very eaves of this court!" Of Cherokee Bill, as recorded in
Harman's Hell on the Border, he said:

"Life, honor, property, all were unsafe, so long as this red-
handed fiend stalked abroad, unmindful of another's rights or
another's life. His love of crime was his controlling passion, and
even the mighty power of the law seemed almost unable to keep
it in check. Failing to work out his plan for escape, he delib-
erately ... let out the life-blood of a fellow being . . . who
had been the best friend he had known in his incarceration ; then,
nerved by the very scent of the fresh blood he had spilled . . .
he stood at bay and fired shot after shot at the brave officers
who gathered to prevent him from adding other and heavier
burdens upon his soul that was already foul with crime.

"Now he comes here, with his hands steeped hi human gore,
with a long list of misdeeds that should cause even the imps in
hell to shudder, with a plea that is untenable, asks mercy at your
hands; mercy! for a series of crimes that knows no equal among
men of the nineteenth century; with his heart reeking with in-
famy, he pleads for mercy; this most ferocious of Monsters . . .
whose very existence is a disgrace upon nature, a grievous bur-
den to the atmosphere from which he draws his breath. . . ."

McDonough grew "intense in his masterful eloquence." His
blue eyes "flashed and seemed to become as black as night."
He threw back his head and his breast "heaved" as he "pounded
blow after blow upon crime and its perpetrators" in a deep
voice that "reached the far corner of the court yard where were
massed many who were unable to secure entrance to the court-
room."

Finally he paused, like a man who had "reached the limit of
his endurance," yet "showing no signs of fatigue." When he
again faced the jury, he was "strangely calm" and his blue eyes
were mild and filled with sympathy. Quietly he spoke of "poor

134 LAW WEST OF FORT SMITH

Larry Keating" and his "untimely death/' of his kind heart
and his wife and fatherless children. He then concluded:

We all loved Larry Keating. ... He loved his family, idolized
his children; few men were ever blessed with his splendid tempera-
ment. He had always a kind word for those he met, always a smile
and a hearty handshake for his friends. We cannot allow his
murder to go unavenged. . . . There is nothing complex about
this case, no technicalities to be cleared away; all is as plain as
the noonday sun. You will do your duty, I have no fear of that
... I feel it ... I can read it in your faces. . . . And may
God bless you for it.

A "subdued ripple of admiration passed over the crowd' 7 as
he finished, and all faces turned toward Judge Parker. They
expected him to deliver a similar, lengthy charge, but in all his
years on the bench, the judge had never had before him a case
where there was "not a particle of doubt that the crime was
committed" or "as to who committed it." His charge was brief.
The jury brought in a verdict of guilty within thirteen minutes.
Judge Parker sentenced Cherokee Bill to be hanged Septem-
ber 10. 34

Again his case was appealed to the Supreme Court, and
Parker granted another stay of execution. But, on December 2,
the Supreme Court affirmed the decision of the Fort Smith court
in the Ernest Melton case. For the third and last time Judge
Parker sentenced Cherokee Bill to die on the gallows and fixed
the date as St. Patrick's Day, March 17. There was "no ave-
nue of escape left except executive clemency by the President,
who was appealed to in vain." 35

The Elevator 3e carried the following account of his execu-
tion:

[Cherokee Bill awakened] this morning at six, singing and
whistling. He partook of a light breakfast about eight o'clock,
which was sent to him by his mother from the hotel. At 9:20,

The Infamous Cooks 135

Cherokee Bill's mother and the old negress who raised him were
admitted to his cell, and shortly after Father Pius, his spiritual
adviser, was also admitted. The usual noise and hubbub that is
always heard within the big iron cage that surrounds the cells
was noticeably lacking this morning. Cherokee Bill's fellow-
prisoners, many of them under sentence of death, seemed to be
impressed with the solemnity of the occasion, and an air of
subdued quiet pervaded the jail. Many of the men who are already
standing within the shadow of the gallows gathered in a group
near the cell occupied by the condemned man and conversed in
low tones. To his most intimate associates since his confinement
Cherokee distributed his small effects. . . .

By 10:30, the corridor in front of Cherokee's cell was crowded
with newspaper representatives, deputy marshals and other privi-
leged individuals, all taking note of every passing incident. Oc-
casionally the condemned man would throw aside the curtain
which concealed the interior of his cell and make his appearance
at the grated door in order to give some instructions or to make
some request of the officer who stood guard.

About 11 o'clock Marshal Crump, after a short conversation
with Cherokee, announced that the execution would be postponed
until 2 o'clock, in order to give his sister an opportunity to see
him before the death sentence was carried out. She was coming in
on the east-bound Valley train, and would not arrive until one
o'clock. The 2000 or 3000 sight-seers surrounding the big stone
wall and within the enclosure dispersed.

It was a struggling mass of humanity that had gathered on
and around the steps and walls and when the time came there
was a scramble even among those who were provided with passes.
There was a crush and a jam for a few minutes but order was at
last restored in a measure and all awaited the moment when the
door should open for the coming of the condemned man. On the
inside there was a repetition of the scenes of the morning. Bill's
mother had packed up several belongings of her son and was ready
when called upon to take final leave. Her parting was an affec-
tionate one but she strove as much as lay in her power to restrain
her emotion.

136 LAW WEST OF FORT SMITH

Bill was affected by it, but following the example of his
mother, gave little or no indication that he was other than
perfectly composed.

"Well; I am ready to go now most any time," said he, address-
ing the guards.

He was taken at his word, and the jail was cleared. The crowd
outside had swelled to increased numbers, all the available build-
ings and sheds being occupied. A pathway was cleared through
the crowd, and very shortly after the clock struck two the door
opened and the doomed man was brought forth, a guard on either
side. The march to the gallows was taken up, and at Col. Crump's
suggestion, Cherokee's mother and the old colored Aunty walked
alongside Bill. Father Pius came next, the newspaper men follow-
ing and the crowd bringing up the rear.

"This is about as good a day to die as any," remarked Cherokee
as he glanced around. Arriving at the south end of the jail, he
looked around at the crowd and said, "It looks like a regiment of
soldiers."

He continued to look around at the crowd, eyeing them
curiously.

At the door of the enclosure there was a jam. Everybody
crowded up and there was a stop for a few moments. It took
several minutes for everyone holding tickets to gain admittance,
and by this time the condemned man and guards had mounted the
scaffold. Bill walked with a firm step and, taking up a position
near the west wall of the gallows, waited for the end.

Turning slightly and seeing his mother standing near, he said:

"Mother, you ought not to have come here." Her reply was;
"I can go wherever you go."

Colonel Crump suggested to him that he take a seat until all
was in readiness, but he replied: "No, I don't want to sit down."

The death warrant was then read, during which Bill gazed about
as if a little impatient to have the thing over with. He was asked
at its conclusion if he had anything to say, and replied: "No sir,
without he (meaning Father Pius) wants to say a prayer." The
Priest here offered a short prayer, the condemned man listening
attentively the meanwhile, and then as if knowing what was to
come next, he walked forward till he stood upon the trap. Deputy

The Infamous Cooks 137

George Lawson and others arranged the ropes, binding his arms
and legs, and it was while this was being done that Bill spoke
to different ones in the crowd below.

"Good-bye, all you chums down that way," said he, with a
smile. Just then he caught sight of a young man in the act of
taking a snap shot with a kodak and pulling it sharply back.
There was a creaking sound as the trap was sprung and the body
shot downward. The fall was scarcely six feet, but the rope had
been adjusted carefully by Lawson and the neck was broken. The
muscles twisted once or twice, but that was all. . . . Twelve
minutes from the time the trap was sprung, the ropes that bound
his limbs were removed, also the handcuffs and shackles, and
the body was lowered into a coffin and borne away and the crowd
dispersed. At Birnie's, the coffin was placed in a box and then
taken to the Missouri Pacific depot and put aboard the train.
His mother and sister took it back with them to Fort Gibson.

On May 18, 1896, the Supreme Court disposed of the second
appeal case of Cherokee Bill as follows: "Crawford Goldsby,
alias Cherokee Bill, v United States, No. 728. In error to the
circuit court of the United States for the Western District of
Arkansas. The Attorney General, for the United States. No
opinion. Dismissed, the cause having abated, on motion by
Mr. Solicitor General Conrad, for the defendant in error." 37

APPEALS AND REVERSALS

FOR FOURTEEN YEARS FROM THE DAY JUDGE PARKER

stepped to the bench and took the fate of civilization's outpost
in brave and willing hands, there was no appeal from his pro-
nouncements of doom. In cases of homicide, his tribunal func-
tioned as a circuit court, and federal statutes made no pro-
vision for having his findings reviewed by the Supreme Court
of the United States. To that extent his court was greater than
the Supreme Court, for it possessed both original and final
jurisdiction. His decisions were absolute and irrevocable. A
murderer could ask for a new trial, but Parker could deny the
motion. A murderer could be pardoned or commuted by the
President, but in these years Parker had considerable influ-
ence in Washington, and the White House was little inclined
to issue pardons over his judgment. "It reminds one of the fa-
mous argument between the Judge and the Bishop," says Harry
P. Daily. 1 "The Bishop asserted that his power was the greater
because, while the Judge could merely say, c You be hanged,'
the Bishop could say, 'You be damned.' The Judge retorted,
'Yes, but when I say, "You be hanged," you are hanged.' "
Parker held still another advantage. The United States had

139

140 LAW WEST OF FORT SMITH

few laws and practically no precedents. State legislatures, how-
ever, had passed many statutes, and state courts of appeal had
rendered numerous decisions on murder and manslaughter,
but Parker was not compelled to follow decisions of these state
courts. He must adhere only to the old English common law,
which was obscure and doubtful and could be construed vari-
ously. He made his own rulings and established precedents that
became the law. No jurist in America has ever been invested
with so much power.

"Tyranny!" cried his critics. Others asked: "Is there any
country on earth even one-half civilized that gives one man
the power to commit judicial murder with no hope of appeal?"
Multiple hangings were played up more and more, and news-
papers placed much stress on the title "The Hanging Judge,"
until hi distant states and modern cities, where citizens had
never faced the atrocities committed against the people of the
Indian country, Judge Parker was given the reputation of be-
ing "heartless and blood-thirsty."

More than this, Parker felt the pressure of the tide of white
immigration. From the beginning he had fought against "this
temporizing process this sugar-coating the inevitable destiny
that awaited the Indian country." As early as 1878, of its pop-
ulation of 85,000 people, 20,000 were whites and 6000 to 7000
were Negroes. Already there was $10,000,000 worth of rail-
road property in the territory and half as much more of other
owned by whites and Negroes not members of the tribes. 2 More
than thirty different tribes, with all this outside population,
were without any law to regulate and control intercourse, ex-
cept Indian law. Commissioners, Presidents, and committees
had for years recognized this "analogous condition of affairs,"
and had recommended the establishment of some kind of civil
government. So had Parker. But he did not believe, as many
of these officials of note believed, that "the false theory that
the Indian tribes are so many independent nationalities, with
whom it is necessary or competent to make treaties, may as

Appeals and Reversals 141

well be abandoned now, as at any future time, for abandoned
it must be." Parker was emphatic in regard to the titles held
by the leading tribes of the territory, and thought that Congress
could furnish a form of government for them that would not
disturb existing rights and institutions; that the government
could make such laws as would give to every tribe "full pro-
tection in person and property, and in the enjoyment of his
homestead in his full right, to use, occupy and own, and with
it prosper."

But his critics took the opposite view, pointing to the activi-
ties of the Fort Smith court as "strengthening our convictions
that the Indian country should be by Congress organized into
a territory of the United States, and that beautiful land made
the home of civilization and refinement, instead of the rendez-
vous and refuge of the thieves, murderers and desperadoes of
all classes from the states as it now is." The so-called Indian
nationalities that they clung to "with such pertinacity" were
but "myths and shadows," they said, having in reality "no
existence worthy of the name." They complained of the juris-
diction the United States court exercised over all white people
in that country for offenses committed by them and over all
Indians for offenses committed upon white people, and that the
result was that they were brought by the hundreds from their
homes in all parts of the territory to Fort Smith and tried by
juries not of their own race or nation, but by strangers. "If they
were organized into a territory and made citizens of the United
States, such would not be the case; but courts could be estab-
lished in their midst and their criminals tried by their own
people," 3 to say nothing of the "enormous expense incurred
by the government and the loss of time and money imposed upon
witnesses and accused persons in reaching its portals, nor the
trivial charges and offenses that come within its comprehensive
grasp, nor of the interests of Fort Smith, of the bar, the jurors
and tradesmen and boarding house keepers to hold fast to the
benefits derived from the presence of the court. ..." *

142 LAW WEST OF PORT SMITH

To alleviate the pressure, Congress, by an act approved
January 6, 1883, took the western half of the Indian country
from the jurisdiction of the Western District of Arkansas. This
western section was in turn divided at the Canadian River,
shifting cases from the northern half of the area to the United
States Judicial District of Kansas, giving the federal courts
at Wichita and Fort Scott "exclusive, original jurisdiction";
the southern area being annexed to the Northern District of
Texas with the federal court at Graham. 5

Judge Parker kept quiet. The larger number of crimes were
committed in the eastern half of the Indian country, and the
loads of offenders coming to Fort Smith did not slacken.

The howl for patronage from Kansas and Texas subsided,
but there was no improvement of conditions in the Indian
country, and Senator George Vest of Missouri took the floor
of Congress in behalf of locating a United States court in the
territory. Pointing again to the Fort Smith tribunal, he stated
that "here it has been shown by experience that it is poor
practice to take [these people] from the Territory for trial"
and declared, "It is high time to stop experimenting with courts
in the states."

He pointed out that with courts in Kansas and Texas, guards
and the same means of transportation had to be employed as
before, that it was no closer to Paris for the Choctaws and a
good half of the Chickasaws than to Fort Smith, and that when
going to the courts in these states the territory witnesses were
still surrounded by the same debasing influences. Very few went
to Fort Smith or to the Texas cities "without indulging in a
big drunk, and many a gallon of vile whiskey finds its way back
by these same witnesses to swell the crime of the Territory.
Hotel keepers rob them of the last cent of their mileage and
fees as at present and they are still tried by juries not of their
own race or nation."

Senator Vest closed his argument with the following appeal:

Appeals and Reversals 143

So long as we treat the Indian as a dependent, helpless being,
fit only to be used for the purpose of plunder and greed, we may
expect the result which has attended our Indian policy for the last
hundred years. Instead of dragging them off to other states to be
tried by juries made up of strangers, instead of impressing them
with the idea that they are fit only for the punishment of the law
and not its administration, let us rather seek to teach them the
self-respect which comes as [sic] free men as both makers and
administrators of the laws.

The Indian Journal commented that "as the United States
is teaching the Indian civilization, what would be better to give
them than practical lessons in the workings of our laws and
courts?" 6

Congress struck another blow at the Fort Smith court. By
two acts approved July 4, 1884, it granted rights of way through
the Indian territory to the Southern Kansas & Gulf and the
Colorado & Santa Fe railroads, and gave the circuit and district
courts of the District of Kansas and the Northern District of
Texas concurrent jurisdiction with the Western District of
Arkansas in all controversies arising between the railroads and
the tribes through whose nations they should be constructed,
regardless of the amount in controversy and "without distinc-
tion as to the citizenship of the parties." 7 But these acts went
"so little noticed that some of the deputy marshals were un-
aware of their provisions for several years thereafter." 8 Again
Parker said nothing.

He took notice, however, that Congress "seemed determined
to keep haggling away at his jurisdiction" when, on March 3,
1885, it approved another act providing that "any Indian com-
mitting against the person or property of another Indian any
of the crimes, as follows: Murder, manslaughter, rape, assault
with intent to kill, arson, burglary and larceny, in any Terri-
tory of the United States and within or without an Indian
reservation, shall be subject ... to the laws of such Territory

144 LAW WEST OF FORT SMITH

relative to such crimes, and . . . tried in the same courts and
in the same manner and . . . subject to the same penalties as
are all other persons charged with the commission of said crimes,
and said courts shall govern and have jurisdiction in all such
cases." 9 This began the "breaking down of the barrier protect-
ing the Indian in the Indian territory in the right to punish the
members of their own tribes for offenses committed against each
other." 10

Added to Judge Parker's burdens was "the arrested state of
development of the whole federal judicial system." There were
yet several courts of original jurisdiction having no superior
appellate courts, and some, like Parker's, were loaded with
both district and circuit court jurisdiction. The Attorney Gen-
eral had urged Congress to reorganize these jurisdictions "be-
cause such conditions are causing delays that amount to a de-
nial of justice." lx Too much territory was under one court.
For instance, the eighth circuit, in which the Fort Smith court
was located, comprised nine states, twelve districts, and twenty-
five divisions. "It is impossible to administer justice efficiently
under such conditions." 12

A grand jury report to Judge Parker in 1887 summarized
the conditions in the Western District of Arkansas as follows:

The task of law enforcement in this district is too great for
Marshal Carroll and his trusted deputies. The dangers are too
great to risk. It would require the might of the United States Army
barking the marshals to efficiently cope with the conditions. . . .
The task is too great for yourself, your honor, and your pay is
insufficient for the vast duties you perform. 18

From 1883 to 1889 criminal cases and court costs increased
so steadily that Marshal Yoes, in his annual report of 1889,
stated that "further reduction of the territory" was the "most
likely" means of cutting expenses and the volume of work
coming before the court.

Apparently all agreed that conditions were "bad" in the
Western District of Arkansas. They were unable, however, to

Appeals and Reversals 145

agree upon a solution. In the "turmoil of dissatisfaction" they
focused their attention upon the tribunal's "character as a court
of both original and final jurisdiction/' and settled down to
attacking the fact that "in its constitution by Congress, certain
great principles of law which lie at the very foundation of
common justice" had been ignored.

The Judge of the Fort Smith district alone has passed the
sentence of death upon more convicted criminals than we care
to guess at, not one of whom, red, white or black, ever had the
poor privilege of having his case reviewed in any manner. . . .
The law vests the judges of these border district courts with
almost unlimited power; human nature prompts them to use it. 14

And in Washington, Representative John H. Rogers and Sen-
ator James K. Jones of Arkansas took the lead in advocating
appellate courts for the districts that had none, and called the
Fort Smith tribunal "a burning shame on American civiliza-
tion." 15

Finally, in 1889, Congress acted upon their recommendations,
abolishing the circuit-court powers of the district courts of the
Western District of Arkansas, the Northern District of Missis-
sippi, and the Western District of South Carolina, three of the
four districts complained of by the Attorney General, and pro-
viding that, after May 1, "in all cases of conviction of crime,
the punishment of which by law is death, tried before any court
of the United States, the final judgment of such court against
the respondent, may be re-examined, reversed, or affirmed by
the Supreme Court of the United States upon a writ of error,
under such rules and regulations as said court may proscribe." 16
Thus the Fort Smith tribunal was stripped of its right as a
court of last resort.

Judge Parker was piqued. "Like a huge monolith supporting
the temple of justice," he had borne alone the great burden,
originally placed upon his shoulders by Congress, of passing
finally upon the guilt and innocence of those arraigned before

146 LAW WEST OF FORT SMITH

him and of sentencing men to death. Why was it necessary now
to share the responsibility with the United States Supreme
Court? Judge Parker spoke out.

"Back of this change/' he said, "is a maudlin sentimentality
that condones a crime on which the blood stains have dried.
. . . Take the good ladies who carry flowers and jellies to
criminals. They mean well . . . but, oh, what mistaken good-
ness! What motives of sincerity, pity and charity, sadly mis-
directed. They consider alone the prisoner chained in his cell
... the convict on the scaffold and his fatal plunge to death.
. . . They forget the crime he perpetrated and the family he
made husbandless and fatherless by his assassin work.

"I have no objection to appeal. I even favor abolition of the
death penalty, provided there is a certainty of punishment,
whatever the punishment may be, for in the uncertainty of pun-
ishment following crime lies the weakness of our halting justice.

"The murderer must be punished as an example to others.
Screening him from punishment by releasing him ... on some
technicality ... is the greatest calamity to the members of
society. . . . The murderer must look to a Higher Court, to
a Higher Power, to a Higher Law, for mercy, for absolute for-
giveness.

"This court," he concluded, "is but the humble instrument
to aid in the execution of that divine justice which has ever
decided that he who takes what he cannot return the life of
another human being shall lose his own. . . ."

This seemed to settle it. The judge had shed few tears for
those who had died on the gallows. His tears were for the inno-
cent, the victims, the murdered men and their families, and
most Fort Smith attorneys, as familiar with conditions in the
Indian country, respected Judge Parker's views. It was not un-
til ten more men had been sentenced to hang that the right of
appeal was exercised in behalf of a client.

The defendant was William Alexander, a Mexican convicted
for murder committed in the Creek Nation, October 21, 1889.

Appeals and Reversals 147

His attorney was J. Warren Reed, a newcomer to the Fort
Smith bar.

Reed had been born December 9, 1849, in Parkersburg, West
Virginia. Like Judge Parker, he spent his childhood on a farm
and in early life chose law as a profession. Through the "same
energy and perserverance which distinguished him in later
years," he secured a fair education and was admitted to the
bar in 1879, when he was thirty, practicing in Wood County,
West Virginia, and southeastern Ohio, where he soon gained
notoriety as "That Lawyer, Who Always Wins His Cases." In
1886 he was admitted to practice hi the Supreme Court and in
the United States District and Circuit Courts of West Virginia.
In April of the same year he went to California, and was ad-
mitted to the bar there by the Supreme Court, in full session
at San Francisco. For a while he successfully handled many
important mining, land, and criminal cases, then became in-
terested in criminal law and decided to specialize in it. He
made a tour of Mexico, the United States, and Canada, and
returned to his native state to settle down to permanent prac-
tice; but he was called to Fort Smith to defend a prominent case
and, noting the volume of business being transacted in the
famous court, decided to stay. He associated himself with the
law firm of Boudinot and Barnes. When Boudinot died a few
months afterward, the firm continued under the name of Barnes
and Reed. Three years later, Reed began practice alone. For
by this time he already was well on his way to becoming one of
the most successful lawyers in the Southwest. 17

Reed was shorter in stature than Parker, but of stout build
and stronger physically. He wore a thick black mustache, in
contrast to Judge Parker's whitening beard and goatee, but
had the same cold, calculating, and piercing blue eyes. Wearing
only the most fashionable clothes, affecting a "claw-hammer"
coat, a silver-headed cane, and a high silk hat, he was "some-
thing of a dandy" to the citizens of Fort Smith, and appeared
out of place on this rough frontier. But he soon became known

148 LAW WEST OF FORT SMITH

as an indefatigable worker for his clients, and a "bold, ruth-
less schemer" who won cases.

He began defending scores of criminals, specializing in de-
fending those charged with murder. Whether his clients were
guilty or not, he fought hard to free them and was not too par-
ticular about his methods. His sole interest was to win their
cases. And when juries found them guilty and Judge Parker
sentenced them to die, Reed went directly to the President. He
began getting executive clemency and pardons in nearly every
case he took to the White House. His ingenuity was "uncanny,
almost diabolical," and word swept the Indian country: "Hire
Lawyer Reed."

Parker was wondering what to do about him when Congress
allowed appeals in all cases carrying the death penalty. It was
too late then for the judge to do anything.

Alexander's conviction stemmed from "wholly circumstan-
tial" evidence that he killed his partner, David C. Steadman,
and appropriated his horses and money. The chief indication
of his guilt was a statement he made concerning the disap-
pearance of his partner to J. G. Rails, a Muskogee attorney
whom he consulted in regard to the ownership of the horses a
few days after the slaying. Over the objection of the defendant,
Judge Parker admitted the statement "as a matter of public
policy when such statements tend to prove the guilt or inno-
cence of the person accused." Reed was certain there were
errors in the ruling and took a bill of general exceptions to the
Supreme Court.

His move attracted national attention. He scorned the notion
that he might incur the displeasure of the court, and maintained
and urged that "it is the duty of any attorney, under his oath,
to avail himself of every right and advantage provided by law
in the interest of a client. . . ."

The Supreme Court agreed. In delivering its opinion, Mr.
Justice Brown accused Parker of scouting the established rule
that "whatever facts are communicated by a client to a coun-

Appeals and Reversals 149

sel solely on account of that relation, such counsel are not at
liberty, even if they wish, to disclose," and added: "While, if
he were guilty of murder, [his statement] may have had a tend-
ency to show an effort ... to make profit out of his death by
appropriating to himself the partnership property, it did not
necessarily have that tendency" and "is perfectly harmless
upon its face." Rails' testimony, therefore, was incompetent.
The judgment of the Fort Smith court was reversed, and the case
remanded for a new trial. 18

Alexander went on trial again a few months later. The skillful,
perservering Reed more plainly developed the circumstances
of the case, and the jury stood five to seven for acquittal. At
a third trial a year later, the jury again failed to agree, and on
the day before Christmas, 1892, District Attorney Clayton,
convinced that he could not secure a conviction, consented to
nolle prosequi.

Reed's success caused him to muster courage to appeal more
cases, and more reversals followed.

On the night of June 15, 1888, the southbound Missouri-
Kansas-Texas passenger express had been held up at Verdigris
tank and Benjamin C. Tarver, a cattleman from Rose, Texas,
en route home from Chicago, had been slain. Four men were
involved in the robbery. One of them, Jim Johnson, was arrested
in Texas on another charge and sentenced to twenty-five years
in prison. A second, Kelp Queen, a notorious bandit, was killed
near Claremore by Deputy Marshal Bud Sanders of the Coo-
weescoowee District. And later a third member of the gang,
John Barber, was slain by Deputy Marshal Connelley and Cap-
tain White, In December, 1890, a youth who had been raised
in the home of Alexander Lewis, fifty miles from the scene,
confessed to J. J. Kinney, a railroad detective, that Lewis was
the fourth member of the band, that plans for the robbery had
been made in Lewis' home, and that Lewis had ridden away
with the gang and returned with them following the holdup
and slaying.

150 LAW WEST OF FORT SMITH

Detective Kinney and the marshals worked up a mass of cor-
roborative evidence, and Lewis was indicted, tried, and sen-
tenced to hang. Attorney Reed appealed to the Supreme Court
on error that, during the trial and after the defendant had
pleaded not guilty to the indictment, Judge Parker had directed
secret challenges to be made, not in the presence of the prisoner
and the jurors. At least Reed discovered that the clerk had failed
to indicate in the record that the jury was present in the box,
face to face with the defendant, when he was called upon to
make his challenges, and the Supreme Court, in reversing and
remanding the case ; held that "nothing can be presumed for
or against a record, except what appears substantially upon its
face." 19

The second trial was "hotly contested." Reed depended "very
little" upon his witness for defense. He "assaulted the govern-
ment witnesses in cross examination. ... In his plea to the
jury, he was concise, logical, keeping the minds of the jury
fixed upon the discrepancies in the testimony of the prosecu-
tion." He literally tore down the case the government had built
up, and "the lengthened faces of the jurors betokened how true
to the mark Reed's logic and argument had been fired" when he
maintained that at no time during the robbery had the prosecu-
tion been able to place his client on the scene as one of the
members of the gang. Reed won his point and Lewis' acquittal. 20

Joseph Wilson was a fearless young Texan riding as deputy
United States marshal in the Muskogee district. On September
21, 1891, he went to the home of Sam Hickory, alias Downing,
on Fourteen Mile Creek near Tahlequah, to serve him with a
warrant for a violation of the liquor laws, and after arresting
him in the field, proceeded to the house with the outlaw to get
his saddle. Once inside the house, Hickory decided to escape.
He picked up his gun and returned to the door, and Wilson,
drawing his revolver, fired into the door facing above his head.
Hickory returned the fire, shooting the deputy's horse in the
leg and Wilson from the saddle. Then the outlaw loaded the

Appeals and Reversals 151

marshal's body into a wagon, hauled it a mile from his home,
and dumped it in a ravine, where it was found, badly decom-
posed, by a searching party three days later. The deputy's horse
lay dead a quarter-mile in the opposite direction, saddle and
bridle missing, its throat cut, and the bullet wound in its knee.

Hickory pleaded self-defense, daiming that while en route
to the house, the marshal began firing at him; that he ran into
the house; and that the affray occurred there, in which there
was shooting by both, until the marshal was slain. 21 The evi-
dence, however, failed to bear out his story. He was convicted
of murder and sentenced to the gallows.

Attorney Reed objected to the manner in which Judge Par-
ker instructed the jury, and appealed. In reversing the case
(Hickory v United States, 151 U. S. 303), Mr. Chief Justice
Fuller of the Supreme Court wrote:

The "experienced" trial judge told the jury that the mere fact
that a killing is done willfully does not necessarily make it mur-
der; that it is also done willfully when done in self-defense; and
explained the characteristics of that malice the existence of which
is the criterion of murder . . . pointing out that the requisite
malice exists when the act is perpetrated without any provocation
or any just cause or excuse . . . that the time of prior considera-
tion will vary as the minds and temperaments of men . . . that
there is no time so short but that within it the human mind can
form a deliberate purpose to do an act. . . .

And in this connection, the "learned" judge charged, among
other things, as follows: "You see, a man is required to discharge
certain great duties under all circumstances, and especially is
this law of duty incumbent upon him when he is put in ... the
position of a judge sitting on the bench, deliberating upon what
the law is, and of a jury sitting hi the jury box, listening to the
facts, and finding as coolly, deliberately and dispassionately as
possible under the circumstances what the facts are. When a party
is in such a condition, he is the judge upon the bench and the
jury in the box; and not only that, but he is the executioner.
He finds what the facts are as a jury, and he makes an applica-

152 LAW WEST OF FORT SMITH

tion of the law that he finds as a judge to these facts that he
finds as a jury, he enters up a judgment, and then and there, he,
as a marshal, kills in the furtherance of the judgment. Suppose
that the judge of this court had that power, how long would the
people of this land permit him to sit on this bench? Suppose that
you, as twelve dispassionate citizens, had that power, how long
would these people permit that system to exist? Suppose that the
chief executive officer of this government, the President of the
United States . * . how long would these people permit one man
to exercise a power of that kind? Exercise it, too, when he wasn't
inflamed with acts that confronted him, but exercised it when he
was an intelligent man, and just man . . . and a fair-minded
man? We have divided this power when it comes to be executed
deliberately. We have a court that performs one office, and the
jury another, and the executive arm of the government another.
Yet the law of self-defense puts all of these mighty elements of
power into the hands of one man. ... He is required to avoid
the necessity of killing if he can with due regard to his own
safety. He must do that. He must forget that he is judge, jury,
and executioner when he is sitting in that tribunal out in the
woods or country. ... He is required to know what the facts
are that confront him, and . . . make correct application of what
this law is ... to these facts . . . and if he does not do that
when he might do it he makes a mistake in that regard, and he
would be guilty of manslaughter. . . ."

To enlarge upon the magnitude of the power of slaying in de-
fending against an attack as being a power which in itself would
not be tolerated in the chief executive of the country or in the
judge then passing upon the issues of life and death, and to advise
the jury to inquire, not into the existence of defendant's belief,
or the reasonableness of the grounds on which it rested, but into
the character of the deliberation which accompanied it, tested by
the standard of that of the judge, the jury, and the executioner,
in the discharge of their appropriate duties, manifestly tended to
mislead. Nor does this view impute a want of intelligence in the
jury. They might find a verdict in disregard of the instructions of
the court, but this is not to be presumed; and, if that strict atten-
tion to judicial direction were paid which the due administration

Appeals and Reversals 153

of justice requires, we are constrained to the conclusion that such
instructions as these under consideration could not but have a
decided influence upon their action. 22

At his second trial a year later (Hickory v United States,
160 U. S. 408) Hickory was again convicted and given the
death penalty. And again Reed objected to Parker's charge to
the jury. The language of this charge to which Reed took ex-
ception was as follows:

There is no man who has arrived at the years of discretion who
has not been so created that he has that in his mind and heart
which makes him conscious of an act that is innocent upon his
part; and his conduct, when connected with an act of that charac-
ter, will be entirely different from the conduct of a man who is
conscious of wrong and guilt. In the one case he has nothing to
conceal; in the one case his interest and self -protection, his self-
security prompts him to seek investigation, to see to it that it is
investigated as soon as possible. This is no new principle. I say
it is as old as the days of the first murder. There is a little bit of
history on that, and I apprehend the gentlemen won't take any
exceptions to reading from this book [the Bible]. There are a
great many exceptions filed here to almost everything said by the
court, but I hope they won't take any exceptions to this. There is
a little bit of history illustrative of the conduct of men:

"And Cain talked with Abel, his brother; and it came to pass,
when they were in the field, that Cain rose up against Abel, his
brother, and slew him.

"And the Lord said unto Cain, where is Abel, thy brother? And
he said, I know not. Am I my brother's keeper?

"And He said, what hast thou done? The voice of thy brother's
blood crieth unto Me from the ground."

"Am I my brother's keeper?" From that day to the time when
Professor Webster murdered his associate and concealed his re-
mains, this concealment of the evidence of crime has been re-
garded by the law as a proper fact to be taken into consideration
as evidence of guilt, as going to show guilt, as going to show that
he who does an act is consciously guilty, has conscious knowledge

154 LAW WEST OF FORT SMITH

that he is doing wrong, and he therefore undertakes to cover up
his crime. . . .

The questions for you to pass upon is whether or not . . .
there were acts upon the part of this defendant . . . that looked
toward concealing this act of the killing of Wilson; what these
acts were; if they were cruel, if they were unnatural, if they were
barbarious . . . that men who are conscious of innocence do
not usually characterize their conduct after a killing by that sort
of acts ... the concealment of this body, the concealment of this
horse, the killing of the horse, and the concealing of everything
that pertained to that man . . . that they might be discovered
afterwards as evidences of the killing.

And bear in mind that the other witness in this case cannot
appear before you. He cannot speak to you, except as he speaks
by his body as it was found, having been denied even the right
of decent burial, by the dead body of his horse, by the concealed
weapons and the concealed saddle, by the blood stains that were
obliterated. . . . You are to see whether [these circumstances]
harmonize with the statement of this transaction as given by the
defendant, bearing in mind that he stands before you as an
interested witness, while these circumstances are of a character
that they cannot be bribed; that cannot be dragged into perjury;
they cannot be seduced by bribery into perjury but they stand
as bloody, naked facts before you, speaking for Joseph Wilson
and justice. . . , 28

In writing the opinion of the Supreme Court, Mr. Justice
Edward D. White said:

It is undoubted that acts of concealment by an accused are
competent to go to the jury as tending to establish guilt, yet
they are not to be considered as alone conclusive, or as creating a
legal presumption of guilt. The charge . . . magnified and dis-
torted the proving power of the facts on the subject of conceal-
ment; it made the weight of the evidence depend not so much on
the concealment itself as on the manner in which it was done . . .
it practically instructed that the facts were, under both divine
and human law, conclusive proof of guilt . . . the effect of ...

Appeals and Reversals 155

the epithets and vituperation . . . was to instruct the jury to
return a verdict of guilty.

The manner of contrasting the testimony of the accused with
the circumstances connected with the concealment was also clearly
illegal. ... It substantially said to them, "The circumstances as
to the killing and concealment cannot be bribed, but the defendant
can be; therefore you must consider that these circumstances out-
weigh his testimony, and it is hence your duty to convict him."

Admonished by the duty resting on us, we feel obliged to say
that the charge crosses the line which separates the impartial
exercise of the judicial function from the region of partisanship
where reason is disturbed, passions excited, and prejudices are
necessarily called into play. 24

In the third trial the crime was reduced to manslaughter,
and Hickory received a five-year sentence in the penitentiary
at Columbus.

These reversals and Reed's temerity encouraged other at-
torneys. More than that, Fort Smith in these years was crawling
with lawyers; and with clients demanding such service as
Reed's, it was good business to climb on the Supreme Court
bandwagon. Numerous other cases were appealed, Judge Par-
ker's decisions reversed many times, new trials granted, charges
reduced, and acquittals won. 25

During his first seven years at the Fort Smith bar, the en-
viable Reed alone defended or assisted in the defense of 134
persons charged with murder and other capital offenses, be-
sides over 1000 cases of lesser importance, such as assault with
intent to kill, robbery, larceny, and whisky violations. Of the
134 charged with capital offenses, he lost only 2 on the gallows;
the others were discharged by commissioners' courts upon ex-
amination trials, acquitted by juries after second or third trials,
the grade of their crimes reduced, or were commuted or par-
doned by the President.

Besides William Alexander, Alexander Lewis, and Sam
Hickory, the most important murder cases with which he was

156 LAW WEST OF FORT SMITH

connected were those of Charles Bullard, Ed Alberty, Buzz
Luckey, Frank Carver, Jake Harles, Isaac Yustler, John Alli-
son, A. H. Craig, Berry Foreman, Rufus Brown, Jess Miller,
Thomas J. Thornton, Frank Perry, and John Gourke. He was
defense attorney for Cherokee Bill at the time of his convic-
tion for the slaying of Ernest Melton, and it was the consensus
that this savage would never have hanged if he had not, while
awaiting the review of his case by the Supreme Court, attempted
the wholesale jail delivery and murdered Lawrence Keating.

Obviously these appeals did not set well with the Fort Smith
press. The editor of the Elevator wrote in his issue of Septem-
ber 13, 1895:

For the benefit of those who may not understand why Cherokee
Bill was not hanged (why he was allowed to remain alive long
enough to commit another brutal murder), we will say that his
case was appealed to the Supreme Court of the United States upon
what is known in law as technicalities little instruments some-
times used by lawyers to protect the rights of litigants but of tener
used to defeat the ends of justice. It will remain there until the
bald-headed and big-bellied respectables who compose that body
get ready to look into its merits. . , .

Heating's slaying also affected Judge Parker deeply. At the
time, he was in St. Louis with his family on a brief vacation.
On July 30 he issued a statement to the St. Louis Globe-
Democrat, commenting on the affair and sharply criticizing the
Supreme Court in its handling of appeals. He said:

At this moment the Fort Smith jail contains over fifty mur-
derers. They have been tried by an impartial jury; they have
been convicted and sentenced to die. But they are resting in jail,
awaiting a hearing of the Supreme Court.

You ask why that, while crime in a general way has decreased
in the Indian country very much in the last twenty years, murders
are largely on the increase? Why, I attribute the increase to these
reversals. First, the convicted murderer has a long breathing spell

Appeals and Reversals 157

before his case comes before the Supreme Court; then, when it
does come before that body, the conviction may be quashed; and
wherever it is quashed it is always upon the flimsiest technicalities.
The Supreme Court never touches the merits of the case. As far
as I can see, the court must be opposed to capital punishment, and
therefore, tries to reason away the effect of the law.

In speaking as I do, I am mindful, of course, of the wise and
merciful provision of the law which declares it is better that
ninety-nine guilty ones escape than that one innocent man should
suffer. Nor am I devoid of human sympathy because I have
endeavored to carry out the law justly and fearlessly. . , . Sym-
pathy should not be reserved wholly for the criminal. I believe
in standing on the side of the innocent. Take that man Keating.
Is there no sympathy for him and for the wife and children who
have been deprived of his support and protection? Wasn't his
life worth more to the community and to society at large than the
lives of a hundred murderers?

During the twenty years that I have engaged in administering
the law here, the contest has been one between civilization and
savagery, the savagery being represented by the intruding criminal
class. The United States government, in its treaties from the days
of Andrew Jackson, stipulated that this criminal element should
be kept out of the country, but the treaties have only been made
to be broken. . . . Thus this class keeps on increasing; its mem-
bers marry, and the criminal population keeps ever growing
larger. ... At the present time there seems to be a criminal
wave sweeping over the country, the like of which I have not
seen before.

It is due to the laxity of the courts.

I have this much satisfaction, after my twenty years of labor;
the court at Fort Smith, Arkansas, stands as a monument to the
strong arm of the laws of the United States, and has resulted in
bringing to the Indian Territory civilization and protection.

X

THE SAVAGE BUCKS

EIGHT MEN WERE HANGED IN 1896 FOLLOWING THE
execution of Cherokee Bill. Three were hanged together April
30, 1 and little more than two months later, on July 3, the en-
tire gang of Buck outlaws were marched onto the scaffold.

The Buck gang sprang up in the Creek Nation in July, 1895,
and flourished thirteen days. But in that thirteen days they
made a criminal record that, considering the time they op-
erated, faded the Starrs, the Daltons, the Rogers and Cook
gangs combined. Their acts were heinous and terrifying. They
never rose to the level of bandits. They were simply ravishers.
Undoubtedly they were the most depraved band of outlaws in
America. 2

Rufus Buck, a full-blooded Euchee Indian, was their leader.
The other members were Sam Sampson and Maoma July,
Creek renegades, and Lewis and Lucky Davis, Creek freedmen
a mixture of Creek and Negro (a cross considered the most
dangerous of all the types of "mixed-blood" desperadoes to
infest the Indian country). These four had been lawbreakers

159

160 LAW WEST OF FORT SMITH

for months, Buck for years. All had been before Judge Parker
for minor offenses and served time in the Fort Smith jail.

On July 28 they shot and killed a Negro deputy marshal,
John Garrett, near Okmulgee. Buck is credited with having
done the job personally. It was the first act of a carefully laid
scheme to get rid of the officer who was watching them in the
district before starting their campaign of terror and destruc-
tion. In fact it was Rufus Buck's boast that his outfit would
make a record that would sweep all the other gangs of the ter-
ritory into insignificance.

Riding from Okmulgee, four of them met a Mrs. Wilson, who
was moving from one farm to another with two wagons. Her
fourteen-year-old son and a young man who was with her were
ordered to drive on with the wagons, while they kept the woman.
Then each member of the band brutally assaulted her, releas-
ing her afterward and firing at her feet as she fled from their
abuse half dead with fright.

On Berryhill Creek, eight miles from Okmulgee, they met a
man named Staley and robbed him of his horse and saddle, fifty
dollars in cash, and a gold watch. They then discussed the most
feasible method of killing him, but finally released him after
three of the gang voted to let him go.

They rode hi the night to the home of Gus Chambers on
Duck Creek near Sapulpa to steal some horses. Chambers
put up a fight, and they filled his house with lead.

They robbed a stockman named Calahan, even taking his
clothing and boots, and fired at him as he fled naked, at the
same time badly wounding a Negro boy who was with him.

Two days later the whole gang appeared at the home of
Henry Hassan between Duck and Snake Creeks, and after
forcing his wife to prepare dinner for them and gorging them-
selves like ravenous wolves, they seized and tied her down
with a rope, and each took his turn assaulting her while the
others held her husband at bay with Winchesters. They then

The Savage Bucks 161

amused themselves by making Hassan and his hired man, who
also was present, fight each other and dance, shooting at their
heels to make the affair more lively.

On August 9 they robbed Norberg's store near McDermott
and Orcutt's store in the same locality. By this time the people
of the Creek Nation had become thoroughly aroused. Captain
Edmund Harry of the Creek Lighthorse, with Lighthorsemen
Tom Grayson, George Brown, and Skansey, accompanied by
Deputy Marshals Sam Haynes and N. B. Irwin and over one
hundred irate citizens, took their trail. Shortly after noon the
following day, the huge posse came upon the outlaws camped
in a little valley at the foot of a high knoll several miles south of
the village.

The sky was clear; the sun beat down; not a breath of air
stirred. In wide-brimmed black and white felt hats, jean trou-
sers, high-topped boots with long-shanked spurs, vests flung
open, fancy colored bandannas about their necks, and heavy
cartridge belts around their waists, they squatted in the shade
of a dump of trees around a big pile of ammunition, tobacco,
clothing, and other merchandise they had carried from the two
stores. A dozen yards away their horses switched flies and fed
on the half -dead prairie grass. They were so occupied in dividing
the loot that they were unaware of the posse until it had sur-
rounded them from the other side of the knoll and opened fire.

Strangely, none of the gang were wounded by the first volley.
The fierce, unexpected onslaught brought them into action.
Unable to reach their horses, they grabbed their rifles and fled
to the top of the knoll, where they sought cover in some grass
roots in the center of a little plateau and opened fire on the
posse below. For seven hours the battle raged, while the "brave
and desperate" Indian police, deputy marshals, and Creek
citizens sought to ascend the hill, and the outlaws, shooting down
from their vantage ground, drove them back.

At Fort Smith, shortly after court had convened at one

162 LAW WEST OF FORT SMITH

o'clock, the first dispatch reached the city that the big posse had
made contact with the Buck gang and "a furious battle" was in
progress.

Everybody in Fort Smith had heard of the Buck gang, the report
of whose dare-devilishness had spread over the entire country.
Coming so soon after the Keating murder, their acts had filled
the people of the city and country with horror, and women and
children feared to step out of doors after dark. The news of the
"round up" spread like wild fire; "The Buck Gang" was upon
everybody's lips. The news reached the court house. There were
in the yard and corridors over 400 persons who had been sum-
moned before the court as witnesses. The court room was crowded,
to listen idly to the numerous petty cases that were invariably
called up after the disposal of a noted murder trial. Inside the
court room word was passed from lip to lip, to the effect that
officers had corralled the Buck gang; almost instantly all was in
a bustle. A bailiff whispered the news to Judge Parker; he nodded
pleasantly, called for order in the court and proceeded with the
regular business. Soon another dispatch came; it read:

"Deputy marshals and Indians are engaged in a hand to hand
conflict with the Buck gang."

Like a flash the contents of this second dispatch found its way
to every nook and cranny in the city. In the court room the bustle
increased; attorneys for once forgot to ask questions, and witnesses
to answer them, and again and again Judge Parker called for the
bailiffs to preserve order. His tone was kindly, however, and he
seemed to join in with the crowd in secret exultation at the fact
that the murderous and unholy gang had been tracked to their
lair. All through the afternoon this eager uneasiness continued
and Judge Parker's voice would sing out ever and anon . . .

"Bring in the prisoner; swear the witnesses; order in the court!"

And when court finally adjourned everyone hurried to the streets
to learn of any possible later news of the fight and gathered in
little knots to discuss the probable outcome. 8

Shortly after dark a dispatch was received that the battle
was over and all five outlaws had been taken alive.

The Savage Bucks 163

They were shackled and chained together and returned to
McDermott. Marshal S. Morton Rutherford of the northern dis-
trict of the territory arrived to take charge. It was decided to
place the outlaws under heavy guard during the night and
transfer them to Fort Smith the next day.

Citizens and settlers throughout the Creek Nation swarrned
into the little village to get a look at these men who had spread
such terror among their people in so short a time. At first there
were only whispered threats, then lynching was talked openly.

Marshal Rutherford spoke to the people. He assured them
that the bandits would be delivered to Fort Smith and that they
would get justice in Judge Parker's court, and the mob quieted
down for a while. Then talk began about cases being long-
drawn-out affairs that went to the Supreme Court. They talked
also of the White House criticism of the tribes in general, and
the Creeks in particular, for their laxity in upholding the law
and their failure to assist in its enforcement as a cause for much
of the crime in their nation. The Creeks had smarted under these
accusations, and they saw an opportunity for retribution.

Rutherford realized that if he waited until morning none of
the prisoners would leave there alive. The noise of the mob in-
creased, more threats, more curses. One large group of Creeks
gathered near the marshals' camp and began posting sentries
to see that neither the officers nor their prisoners escaped.

Rutherford consulted with his deputies. In the darkness, he
believed, they could steal through to safety but for the noise
of the heavy chains that bound the bandits together. He told
the outlaws that the only way they could remain alive was to
cooperate, and if they would pick up their chains and carry them
without sound, his officers would try to slip them away. Anxious
to save their own lives, although they had little regard for the
lives of others, the renegades picked up their chains and carried
them silently for half a mile. From there the officers whisked
them to Muskogee, placed them on the train, and took them to
Fort Smith. 4

164 LAW WEST OF FOBT SMITH

They reached the Arkansas city on Sunday morning, August
11. Seven hundred people had gathered at the depot to gaze
upon "these fiends in human form." As the prisoners were
escorted off the train with the officers in front and behind them,
the crowd fell back on either side, and the outlaws shot furtive
glances, taking in every face, every detail, as if at any moment
they might attempt a break. One contemporary in describing the
situation wrote that "if by some manner or means these men 57
could have been "unshackled and all provided with Win-
chesters," what a "scattering" there would have been. 5

Quickly the deputies marched their prisoners up Garrison
Avenue, with the crowd close behind them following silently,
"while the church bells tolled a requiem to the dead victims of
this blood-thirsty gang." The only other sound was the clanking
of their chains upon the sidewalk. Three blocks away the iron
gate opened into the old government barracks enclosure, the
marshals and their prisoners passed through, and the gate
screeched closed behind as the territory's most savage band
of criminals walked within the majesty of Judge Parker's law.

The case was assigned to Assistant District Attorney Mc-
Donough, who had prosecuted Cherokee Bill and obtained his
second conviction. For a week McDonough collected evidence
surrounding the gang's "most shocking, dastardly crime" the
rape of Rosetta Hassan which was placed before the grand
jury and an indictment returned as follows:

UNITED STATES OF AMERICA, WESTERN DISTRICT OF ARKANSAS.

IN THE CIRCUIT COURT, MAY TERM, A. D., 1895.
UNITED STATES

RUFUS BUCK AND LEWIS DAVIS AND LUCKY DAVIS " E
AND SAM SAMPSON AND MAOMA JULY.

The grand jurors of the United States of America, duly selected,
empaneled, sworn and charged to inquire into and for the body of
the Western District of Arkansas aforesaid, upon their oath
present:

The Savage Bucks 165

That Rufus Buck and Lewis Davis and Lucky Davis and Sam
Sampson and Maoma July, on the 5th day of August, A. D., 1895,
at the Creek Nation, in the Indian country, within the Western
District of Arkansas aforesaid, in and upon Rosetta Hassan, a
white woman, and not an Indian, feloniously, forcibly and
violently an assault did make, and her, the said Rosetta Hassan,
then and there, and against her will, forcibly, violently and
feloniously, did ravish and carnally know, contrary to the form
of the statute in such case made and provided, and the peace and
dignity of the United States of America.

E. J. BLACK, Foreman of Grand Jury.
JAMES F. READ,

U. 5. District Attorney, Western District of Arkansas.

On August 20 the prisoners were arraigned before Parker and
entered pleas of not guilty. The judge set September 20 as the
date for trial.

The trial was amply covered by the Fort Smith press and the
newspapers in the Indian territory, St. Louis, Little Rock and
Kansas City, and other points near and far. Yet the best account
is given by S. W. Harman in his incomparable book, Hell on
the Border:

Court opened at 8:30 A.M. Within a short time the courtroom
was packed with an eager crowd, of all kinds and classes, and the
whole motley throng, unmindful of the suffocating heat, sat
through the trial, eagerly drinking in the loathsome details of the
horrible crime . . . that they might gain a knowledge of the
minutest details . . . and so work themselves to a pitch where
they could more fully enjoy the punishment, even if inadequate,
so certain to be dealt [these outlaws] .

Henry Hassan, the husband of the injured woman, was the first
witness examined. He described how, on Monday, the fifth day
of August, as he lay sleeping beneath an arbor, his wife sitting
nearby preparing fruit for the family larder, the gang rode
through the front gate. Awakening, he greeted them pleasantly
and asked them if they were hunting. Buck replied in the affirma-
tive and called for water. Sending his wife's little brother for a

166 LAW WEST OF FORT SMITH

pail of fresh water, he started to meet them and then discovering
that one of the number was Lewis Davis, with whom he had
previously had some slight difficulty, he knew he was at the mercy
of the terrible band of whose recent depredations he had heard.
He hesitated a moment, then started for a corner of the house,
hoping to reach cover, then enter a door, inside of which hung his
Winchester. He gained the corner safely, then ran towards the
door and as he started to enter was stopped by Maoma July,
who had entered from an opposite door and securing the coveted
rifle now brushed his face with its muzzle, while Sampson at the
same time covered him with a six-shooter. Hassan backed away,
and the others coming up, Buck, with an air of bravado, said: "I'm
Cherokee Bill's brother; we want your money." With vile curses
they commanded Hassan to sit in a place designated, then ordered
his wife and her mother to prepare dinner. The women hastened
to cook a meal, and meanwhile Lewis Davis stayed with Hassan
to keep him under control by threats of death, boastfully declaring
himself to be Tom Root [a notorious outlaw sought at that time].
While the meal was being made ready the rest of the gang searched
the house and appropriated $5.95 cash, a suit of clothing, some
baby's dresses, together with various articles of feminine apparel,
handkerchiefs and whatever struck their fancy. After having ap-
peased their appetites, they came out and stood guard over Hassan
while the Negro went in to dinner, after which the assault on Mrs.
Hassan was made.

Having satisfied their lusts, they mounted their horses and
ordered Hassan to go with them; just then a young man [the
hired hand] came, unsuspectingly, to the house . . . and they
held him up, and marched both him and Hassan two miles away
and compelled them to jump into a pool of water, then forced
them to wrestle and fight, then amused themselves by making the
men dance while they fired random bullets at their bare feet.
Finally, when their ideas of fun were exhausted, they ordered the
men to go home, warning them: "If you ever appear against us
our friends will kill you." Hassan hurried to his home as soon as
released, but found his wife missing. She had been so wrought up
over the ordeal through which she had passed, believing it the
only means of saving her husband's life, the continued absence of

The Savage Bucks 167

the latter had caused her to believe her sacrifice had been useless,
and that he had already fallen a victim to their love of crime, and
finally, overcome with fear, she had fled to a nearby cornfield and
hid. After a continued search, her husband found her, in a
paroxysm of fear, nearly dead from apprehension.

Hassan's story, as related on the witness stand, was straight-
forward, and was given with but little interruption on the part of
the prosecuting attorney and none whatever by the attorneys for
defense. Through it all the members of the gang sat unmoved,
pretending an inability to understand English. If the testimony of
the husband was listened to by the vast assemblage with thrilling
interest, then there is no adjective capable of describing the in-
terest shown during the time that the injured wife and mother was
giving a recital of her wrongs.

The murmur of indignation that ran through the crowd when
Hassan stopped speaking and retired, ceased as Mrs. Hassan was
escorted into the courtroom and took her position on the stand,
and but for the bustle occasioned by the shifting and craning of
necks by the members of the crowd to secure a view of the
witness, all was silent. Mrs. Hassan was a well proportioned
woman with beautiful features, and a look that betokened a kindly
disposition. She appeared to be about 30 years of age. She was
very nicely dressed, and wore nothing that could be considered
gaudy. Her appearance was most modest and it was evidently
with a great effort that she was able to sit there, cynosure of
so many curious pairs of eyes. She still showed the effects of her
frightful experience. She spoke slowly and in low but tremulous
tones showing the strong nervous tension under which she was
still laboring; at times her breath came quick, her bosom heaved,
the hot blood surged to her temples with her head bowed low she
would give way to heart-rending sobs, as the questions propounded
by the prosecution or the court brought back with awful vivid-
ness the horrible scene through which she passed but a few weeks
before. She related, much as her husband had done, the coming
of the gang to her home to ask for water, of her fears for the life
of her husband, of the hastily prepared meal which she hoped
might be the means of saving him. Urged to tell what occurred
after they had eaten, she described between sobs how Lucky

158 LAW WEST OF FORT SMITH

Davis, the Negro, had told her: "You have to go with me," and
how she pleaded with him not to take her away from her babies;
how he had replied, "We will throw the G d brats in the
creek"; how he had commanded her to mount his horse and ride
away with him, only desisting when she declared she could not
ride; how he then ordered her to go with him a little way, and
she hesitated and had finally obeyed, believing if she refused they
would kill her and the rest of her family, and marched on, while
the colored brute held the muzzle of his Winchester close to
her head. She told how they continued until they reached the
back side of the barn, out of sight of the house and 200 feet
away, and of Davis then laying down his rifle and drawing a
pistol from his belt then paused.

Judge Parker said kindly, "Just go on and tell everything that
occurred there. The law makes it necessary to tell it. It is a very
delicate matter, of course, but you will have to tell about it."

"Did he tell you what to do?" asked Mr. McDonough.

"Yes sir," in a tone barely audible.

"What did he say?"

"He told me to lie down" ; and the witness broke down com-
pletely, while her frame shook with convulsions and she sobbed
like a child, yet as a child could not. The effect upon the audience
was magnetic. They had listened with sympathetic eagerness,
forgetful of their own existence even, and the result when the
climax was reached is indescribable ; during the several minutes
that elapsed before the witness could regain her composure there
was the most profound silence, broken only by her sobs; the
conditions, the awfulness of the crime committed, the story so
clearly told and the woman in tears, had a reflex action upon the
auditors, and a wave of sympathy swept through the room, and
left scarcely a dry eye. Not one of the jurors, accustomed though
they were to recitals of brutality, somewhat hardened no doubt,
but who shed tears, sympathetic, manly, noble tears, of which
they were not ashamed, neither had reason to be. It was a supreme
moment such as I never expect to experience again. The few
women in the crowd gave way to a mighty surge of grief, and
even Judge Parker, notwithstanding that he had been inured by
many long years of experience with brutal crimes, removed his
spectacles and while a suspicious moisture twinkled upon his

The Savage Bucks 169

lashes, drew a handkerchief from his pocket, wiped the lenses,
then spoke a few words of gentle encouragement to the wit-
ness.

Let us draw a charitable veil before the remainder of her
testimony, her unwilling description of what followed, and was
repeated, one, two, three, four times, each one of the brutal
ruffians taking their turn at the revolting crime while at all times
three of the gang remained on guard over the husband, ready to
send a bullet crashing through his brain if he attempted a re-
monstrance or made an outcry. Gently the court drew from her
that it was only for the sake of her husband and children and
through fear that they would kill her loved ones that she submitted
to the indignities, and as she proceeded, the terrible iniquity of
the deed came upon him with such power that Judge Parker
became livid with rage ; it were well for the prisoners that the law
prevented him dealing out punishment then and there.

Without cross-examination Mrs. Hassan was allowed to step
down -from the witness stand and retire; the attorneys standing
aside and bowing reverently as she passed out, bearing the sym-
pathy of every one in the courtroom. At the conclusion, Assistant
District Attorney McDonough rose and in a subdued tone said
to the jury:

"Gentlemen: You heard the evidence. It was so plain it is
unnecessary to argue the case. The court will give all necessary
instruction, and we will expect a verdict of guilty at your hands."

Wm. M. Cravens, one of the five attorneys appointed for the
defense, arose and said, simply, "May it please the court and
you, gentlemen of the jury, you have heard the evidence. I have
nothing to say," then resumed his seat. It was probably the
shortest plea for defense ever recorded.

Judge Parker then delivered a short but impressive charge and
the jury retired. It required no effort on the part of any member
of that jury to arrive at a verdict of guilty. They did not even
take time to ballot. One of their number was chosen foreman, his
signature was affixed, and the jury at once returned to the court-
room, where in silence, the verdict was awaited. It read: "We,
the jury, find the defendants, Rufus Buck, Lewis Davis, Lucky
Davis, Sam Sampson and Maoma July guilty of rape, as charged
in the within indictment. (Signed) John N. Ferguson, Foreman." e

170 LAW WEST OF FORT SMITH

Harman continues:

Immediately after the finding of the indictment for the rape of
Mrs. Hassan, the grand jury had returned a true bill charging
the Buck gang with murder ... of the Negro marshal ... the
first crime committed by them as they started out on their short
and terrible career. As soon as the verdict convicting them of rape
was read, Judge Parker excused the jury and at once another
panel was drawn, a new jury was selected, and, without being
allowed to leave their seats, the prisoners were placed on trial
for murder. The case continued until the next day, resulting hi a
verdict of guilty , T

On Wednesday, September 25, a huge crowd again gathered
in the courtroom to hear Judge Parker pronounce their sentence.

"Rufus Buck, Lewis Davis, Lucky Davis, Sam Sampson and
Maoma July, stand up.

"You have been convicted by a verdict of the jury, justly
rendered, of the terrible crime of rape. It now becomes the duty
of this court to pass sentence upon you which the law says shall
follow a conviction of such crime. Have you anything to say
why the sentence of the law should not now be passed in your
cases?"

"Yes, suh," Lucky Davis replied. "I wants my case to go to
the Supreme Court."

"I don't blame you," commented Judge Parker, then he con-
tinued, speaking to all of them:

I want to say in this case that the jury, under the law and the
evidence, could come to no other conclusion than that which they
arrived at. Their verdict is an entirely just one, and one that must
be approved by all lovers of virtue. The offense of which you have
been convicted is one which shocks all men who are not brutal.
It is known to the law as a crime offensive to decency, and as a
brutal attack upon the honor and chastity of the weaker sex. It is
a violation of the quick sense of honor and the pride of virtue
which nature, to render the sex amiable, has implanted in the
female heart, and it has been by the law-makers of the United

The Savage Bucks 111

States deemed equal in enormity and wickedness to murder, be-
cause the punishment fixed by the same is that which follows
the commission of the crime of murder . . .

Your crime leaves no ground for the extension of sympathy.
. . . You can expect no more sympathy than lovers of virtue and
haters of vice can extend to men guilty of one of the most brutal,
wicked, repulsive and dastardly crimes known in the annals of
crime. Your duty now is to make an honest effort to receive from
a just God that mercy and forgiveness you so much need. We
are taught that His mercy will wipe out even this horrible crime;
but He is just, and His justice decrees punishment unless you are
able to make atonement for the revolting crime against His law
and against human law that you have committed. This horrible
crime now rests upon your souls. Remove it if you can so the
good God of all will extend to you His forgiveness and His
mercy.

Listen now to the sentence of the law which is, that you,
Rufus Buck, for the crime of rape, committed by you upon
Rosetta Hassan, in the Indian country, and within the jurisdiction
of this court, of which crime you stand convicted by the verdict
of the jury in your case, be deemed, taken and adjudged guilty
of rape; and that you be therefor, for the said crime against the
laws of the United States, hanged by the neck until you are dead;
that the marshal of the Western District of Arkansas, by himself
or deputy, or deputies, cause execution to be done in the premises
upon you on Thursday, the thirty-first day of October, 1895,
between the hours of 9 o'clock in the forenoon and 5 o'clock hi
the afternoon of the said day; and that you now be taken to the
jail from whence you came, to be there closely and securely kept,
until the day of execution, and from thence on the day of execu-
tion as aforesaid, you are to be taken to the place of execution,
there to be hanged by the neck until you are dead.

May God, whose laws you have broken, and before whose
tribunal you must then appear, have mercy on your soul.

He then pronounced the sentence upon each remaining mem-
ber of the gang, while they "exhibited no sign" and "seemed to
care nothing for it." 8

172 LAW WEST OF FORT SMITH

For "downright dare-deviltry" and "complete abandon" these
renegades stood at the head of all "dissolute characters" who
had been swung into eternity on the gallows at the federal jail.
There was "no extenuating circumstance" for their counsel to
offer in their behalf. The "details of the rape of Mrs. Hassan
were so revolting" and "proof of their guilt so plain" that it
appeared the case would not be taken to the Supreme Court. 9

But Buck claimed that, given the opportunity, he could prove
an alibi, and the case was appealed. Judge Parker issued a stay
of execution, but this time the Supreme Court refused to inter-
fere. The decision was affirmed without opinion, 10 and Judge
Parker resentenced the gang to hang on July 1, 1896.

The best account of their execution appeared in the Elevator
issue of July 3:

It was seven minutes past 1 o'clock when the doors of the jail
opened for the egress of the condemned men. As they passed out,
many of their fellow prisoners called to them: "Good bye, boys."
They responded in a rather low tone of voice. Rufus Buck was
the first to come from the jail door. He was perfectly calm. The
others followed, and were equally cool. All were clad in black
suits, and Rufus Buck, Maoma July and Lucky Davis wore large
boutonniers upon the left lapel of their coats. Father Pius, their
spiritual adviser, accompanied them. Closely following upon the
train toward the gallows were the sisters of Sam Sampson and
Lucky Davis.

When the prisoners entered the gallows enclosure they took a
glance at its hideous paraphernalia and then ascended the steps
without the least sign of emotion. They remained seated upon a
bench while Colonel Crump read the death warrant. Most of the
officers and the spectators seemed impressed by this part of the
proceedings, and stood with uncovered heads. When this part of
the preliminaries had been disposed of, Col. Crump asked the
condemned men if they had any remarks to make. All except
Lucky said they had not. Lucky simply said he wanted the priest
to pray for him.

The Savage Bucks in

Father Pius uttered a short prayer in silence, during which all
present stood with uncovered heads.

This over, the prisoners stepped upon the fatal trap. As they
did so they recognized a number of persons among the crowd
around the gallows and saluted them. Lucky Davis shouted
"Good bye, Martha" to his sister, who was also present. Rufus
Buck's father, a big, heavy old man, got into the jail enclosure
and attempted to come up the steps to the platform where his
son stood; but he was stupidly drunk, and was escorted below.

The sister of Sam Sampson entered the gallows yard and stood
until the black caps were placed in position. . . .

It took but a short time to complete the work after the pre-
liminaries had been arranged. The prisoners stepped forward . . .
none of the condemned men except Lucky Davis showed any
signs of trepidation. Lucky was nervous, and during the time Col.
Crump was reading the warrants, showed his nervousness by
restless movements and twitchings of his face. Beyond this he
showed no signs of fear. When he stood upon the scaffold he was
perfectly cool. He kept repeating prayers even after the black cap
was placed over his head.

The trap dropped with its horrible "chug" at 1:28 o'clock.
Lewis Davis died in three minutes, his neck being broken. The
necks of Sam Sampson and Maoma July were also broken, and
they died easily. Rufus Buck and Lucky Davis were strangled to
death. . . . Davis' body drew up several times before it straight-
ened out. Rufus Buck did not suffer, unconsciousness coming over
him as soon as the rope tightened around his neck and shut off his
breath; but it was several minutes before the contortions of his
body ceased.

In Rufus Buck's cell, after his execution, was found a photo-
graph of his mother. On its back he had sketched a strange
farewell poem, decorated with a cross and a drawing of the
Savior. It read:

MY, dreAm, 1896
I, dreamP'T, i, wAs, in, HeAVefl,
Among, THe, AngeLs, Fair;

174 LAW WEST OF FORT SMITH

I'd, neAr, seen, none, so HAndsome,
THAT, TWine, in, goLden, HAir;

THey, Looked, so, neAT, And, SAng, so, sweet,
And, PLAY,d, THe, THe, goLden, HArp,

i, wAs, ABout, To, Pick, An, AngeL, ouT,
And, TAke, Her, To, mY, HeArT;
BuT, THe, momenT, i, BegAn, To, PLeA,
i, THougHT, oF, You, mY Love,
THere, wAs, none, Pd, seen, so, BeAuTiFuLL,
On, eArTH, or, HeAven, ABove,
gooD, By, My, Dear, Wife, anD. MoTHer

all.so.My. sisTers

RUFUS, BUCK
Youse. Truley
I Day. of. JUIy
Tu, THe, Yeore
off
1896

H

O
L
Y

FATHer Son
g
H
O

s

T

virtue & resurresur.rection.
RememBer, Me, ROCK, OF, Ages:

XI

'THE WICKED FLEE'

MEANWHILE, JUDGE PARKER WAS EXPERIENCING
great difficulty suppressing his indignation at having his opin-
ion reversed by the Supreme Court in the case of the notorious
desperado Henry Starr.

Henry was born December 2, 1873, in a log hut near Fort
Gibson. His father was George "Hop" Starr, half-breed Chero-
kee son of the old Cherokee outlaw, Tom Starr, and brother of
Sam Starr, husband of Belle, the outlaw queen. If there was an
inherent criminal instinct in Henry's nature, it was a dark
heritage from the Starr strain. His mother was half-Irish and a
highly respectable woman. At sixteen he went to work on the
Half Circle Box ranch south of Coffeyville. In the fall of 1890
he worked on the Open A, and when their cattle were shipped
in the spring of '91, he got a job with the Roberts brothers
near by. 1 By this time he was a crack cowboy five feet nine
inches tall, strong, of athletic build, with straight black hair,
dark brown eyes, and handsome with just a tinge of swarthi-
ness. He didn't use tobacco, coffee, or liquor. He looked like a
man who could be trusted. 2

115

176 LAW WEST OF FORT SMITH

Then, in June of '91, Henry was arrested for introducing
whisky to the Indian Territory. Starr always claimed that the
whisky the marshals found in his buggy belonged to a friend
who had asked him to haul it to Nowata. Official records do not
bear him out. The supposed friend was never identified. Starr
pleaded guilty, and was fined and released.

In February, 1892, he was arrested for horse stealing, but
the case was dismissed in commissioner's court. In August he
stole two horses and was released on bond furnished by a cousin
and the chief of the Cherokee Nation. He failed to appear for
trial; the bond was forfeited, and his bondsmen offered a re-
ward for his capture. While a fugitive on this charge he began
the series of crimes that graduated him into the full-fledged
outlaw class of the James, Youngers, and Daltons ... "a well
fit type of his distant kinsmen and as daring a devil as ever
terrorized peaceable citizens." 3

Accompanied by a Delaware half-breed, Ed Newcome, and
Jesse Jackson, a white man, he held up the Missouri Pacific at
Nowata. He robbed the Schufeldt and Son store at Sequoyah. 4
Meanwhile Detective H. E. Dickey of the express company,
investigating the Nowata affair, had gone to Fort Smith, ob-
tained a warrant for Starr's arrest, and accompanied by Deputy
Marshal Floyd Wilson had gone out to hunt the youthful bandit.
It was while being pursued by Wilson and Detective Dickey
that he committed the murder for which he was tried before
Judge Parker.

On December 13 they picked up his trail south of Lenapah
and traced him to the ranch of Albert Dodge in the California
Creek country. Dodge reported he had seen the outlaw ride past
his place several times. The officers began scouring the coun-
try for him.

Wilson came upon Starr alone in an opening on Wolf Creek.
They sighted each other the same instant, and Starr dropped
from his saddle. Wilson dismounted also, and the pair stood

"The Wicked Flee 99 111

facing each other only thirty paces apart, Winchesters in their
hands.

Wilson ordered Starr to surrender. "The reply was a shot
from Starr's rifle." 5 Wilson fired once and then "an empty
shell became clogged in his Winchester, and throwing down
the weapon, he tried to defend himself with a revolver." 6 Starr
"discharged his Winchester several more times at the brave
marshal," 7 knocking him down; and while the deputy lay on
the ground, too badly wounded to defend himself, the outlaw
calmly strode forward and fired another shot into Ms breast,
holding his gun so close that the blaze spouting from its muz-
zle burned the officer's clothing. 8 Dickey heard the shooting
and hurried to the scene. But Starr had escaped.

The slaying of Wilson "established" Starr among the re-
maining desperadoes of the West. He now organized a "hard-
riding, fast-shooting gang" that, under his planning and lead-
ership, committed robberies in a short time as follows: the
People's Bank at Bentonville, Arkansas, in which a fierce battle
was waged with citizens and the gang took $11,000; the Chelsea
railroad station; the Missouri-Kansas-Texas train at Pryor
Creek; stores at Nowata and Choteau; the bank at Aldrich,
Missouri; and the Caney Valley Bank at Caney, Kansas. Three
thousand dollars were obtained at Aldrich and $2000 at Caney. 9
"Always on the go, always pursued, but somehow always man-
aging to avoid capture," the gang experienced only one brush
with the marshals. In a fight with Deputies Isaac Rogers and
Rufe Cannon near Bartlesville, one member, Jesse Jackson, was
shot three times. Henry Starr and Ed Newcome escaped.
Rogers, in a message to Marshal Yoes at Fort Smith, stated
that "about two hundred shots were fired; we are still on the
trail of Starr and his confederates and will yet run them
down." 10

With the law "literally breathing down their necks," the gang
decided it wise to break up and go their separate ways. Starr,

178 LAW WEST OF FORT SMITH

accompanied by Kid Wilson, the only other survivor of the
Bentonville raid, 11 departed for Colorado Springs. On July 3,
1893, they were captured by the Colorado Springs police:

It had been rumored for several days that Starr was in the
city, but his identity could not be determined. Monday morning
Mr. William Feuerstine [a resident of Fort Smith who was in
Colorado Springs attending to private business] happened to step
into the Spaulding House . . . and saw Starr. He at once in-
formed Capt. Dana, chief of police . . . and a search was in-
stituted at the Spaulding House, where the following entry was
made late Saturday night:

Frank Jackson, Joplin, Mo.

John Wilson, Joplin, Mo.

Mary Jackson, Joplin, Mo.

As surmised, Jackson proved to be Starr, and Mary Jackson
his alleged wife. Chief Dana, knowing the character of the men he
had to deal with, planned to attack them separately. Four men,
heavily armed, were located in a convenient room on South Telon
street. Detective Joe Atkinson was detailed to remain at the
Spaulding House and keep the game in sight. . , . Shortly after
noon Starr and Wilson sauntered up Telon street. They entered
the store of Oppenheim Brothers, bought a lot of clothes and a
good gold watch and chain and impressed the proprietors they
were from the East to see the sights. The Oppenheims were asked
to accompany them, which they did. Mrs. Jackson was picked up
at the Spaulding House, and the party drove to Manitou Springs
and spent the day, closely followed by officers in citizens' garb,
who watched their every movement. They returned about dark.
Starr and the woman got out at the Spaulding House, but Wilson
accompanied the driver to the stable. An hour later Starr de-
scended to the hotel office, and being informed that the supper
hour had passed, he started out to get a lunch. The hour anxi-
ously awaited for had come. The desperadoes had separated.
Starr sauntered up the street, with Chief Dana and Captain
Gathright behind him, and Detective Atkinson and two deputies
on the opposite side of the street.
After walking about two squares, Starr entered the Cafe

"The Wicked Flee" 179

Royal, and ordered a lunch, which was served. While he was en-
gaged in disposing of the meal, Dana and Gathright sauntered
in leisurely, but turned suddenly and pinioned Starr's arms and
wrists. Meanwhile, Atkinson and his deputies entered and lev-
eled their revolvers on Starr, who, after being relieved of a .45
Colt's revolver, surrendered. After being taken to the police sta-
tion, he asked:

"Who do you think youVe got?"

"Henry Starr," was the answer.

"You're right," was his reply.

Wilson, "the Kid," had taken the street car for Colorado City,
in company with the Oppenheims. The officers were soon in pur-
suit. One of the Oppenheims said Wilson had entered a house of
ill fame close by. The landlady opened a door of one of the rooms
and the officers rushed in, calling on Wilson to throw up his hands.
He did so, and his capture was effected without a struggle. Wil-
son's revolver was found under his pillow. The last of the trio,
the woman known as Mrs. Starr, was found in bed at the Spaul-
ding House a few minutes later. Under her pillow was $1460 in
bills, and in a valise near by $500 in gold. 12

Starr, with Wilson, was taken to Fort Smith, where four in-
dictments for robbery and one for murder awaited him. 13 Wil-
son was convicted for participation in the Pryor Creek train
robbery and sentenced to twenty-four years in prison at Brook-
lyn.

Henry Starr was tried for murder of the deputy marshal.
He did not deny killing Floyd Wilson, but claimed it was in
self-defense . . . that he did not know Wilson was an officer
and that the latter had given him "no notice of his character
or mission." That Starr knew Wilson was an officer and knew
he was being pursued was evidenced by the testimony of one
Mrs. Padget, who witnessed the slaying from near her home
and testified that she heard Wilson say, "Hold up; I have a
warrant for you," and that Starr said, "You hold up." In an-
swer to a question put by the District Attorney, she also stated
that three or four weeks before the shooting Starr had remarked

180 LAW WEST OF FORT SMITH

to her that he guessed the marshals were hunting him "for
jumping his bond." 14

Parker charged the jury accordingly:

If a man stands up and obstructs arrest, prevents arrest, armed
with deadly weapons, and using them in a way that is threaten-
ing, then the officer has no time, nor is he called upon to make
proclamation. The officer must stand on the offensive and over-
come the danger and take his man or overcome him by violence,
if necessary.

The judge added:

When we enter upon the execution of as grave a design as the
taking of the life of individuals, we must enter upon it with clean
hands and a pure heart. If we have created a condition that leads
to a deadly result, the law of self-defense does not apply ... if
we create that condition by doing a wrongful thing upon our part,
which would naturally or reasonably or probably produce a deadly
result . . . because we are wrong in the first place.

Referring to the defendant, he said:

He was a fugitive from justice ... he had forfeited his bond
and was up in that country, hiding out from his usual place of
abode, to avoid arrest. . . .

And continued:

It is a fact that becomes pertinent to you to take into con-
sideration . . . from what transpired . . . that he knew Floyd
Wilson was an officer, and was seeking to arrest him. ... It
takes men who are brave to uphold the law here. There is no
protection unless the law is upheld by men of this kind. ... If
you are satisfied of the fact, beyond a reasonable doubt, that
Floyd Wilson was a man of this kind, that he was properly in
the execution of the high duty devolving upon him, and while so
properly executing it, by the light of these principles of the law
I have given you, his life was taken by this defendant, your
solemn duty would be to say that he is guilty of the crime of
murder, because . . . the law is to be vindicated. You are to

"The Wicked Flee"lSl

stand by the nation. You are to say to all the people that no
man can trample upon the law, wickedly, violently, and ruthlessly;
that it must be upheld if it has been violated.

Parker concluded his charge "in strong terms, expressed in-
dignation at the homicide, and urged argumentatively the neces-
sity of vindicating and upholding the law." 15

In pronouncing sentence upon Starr, he said: "You tried
this brave officer, condemned him to death and executed him
with a Winchester; and now it is only simple justice that you
should die at the end of a rope." 16

Starr's attorney quickly sued out a writ of error on grounds
that Parker's remarks were "not consistent with due regard
to the right and duty of the jury to exercise an independent
judgment," and Chief Justice Fuller, in handing down the
opinion of the Supreme Court, said:

Whatever special necessity for enforcing the law in all its rigor
there may be in a particular quarter of the country, the rules
by which, and the manner in which, the administration of justice
should be conducted, are the same everywhere; and argumenta-
tive matter of this sort should not be thrown into the scales by
the judicial officer who holds them. . . . The judgment is re-
versed, and the cause remanded, with a direction to grant a new
trial. 17

Parker demanded:

Does it mean that it is the part of the government to send a
man out into that Golgotha to officers, and command them, in the
solemn name of the President of the United States, to execute
these processes, and say to them: "Men may defy you; men may
arm themselves, and hold you at bay; they may obstruct your
process; they may intimidate your execution of it; they may
hinder you in making the arrest; they may delay you in doing
it by threats of armed violence upon you; and yet I am unable,
as chief executive of this government, to assure you that you have
any protection whatever!" What a mockery, what a sham! What
was this posse to do? What was he commanded to do? To go
into the Indian country and hunt up Mr. Starr, and say to him

182 LAW WEST OF FORT SMITH

that on a certain day the judge of the federal court at Fort Smith
will want your attendance at a little trial down there, wherein
you are charged with horse stealing, and you will be kind enough,
sir, to put in your attendance on that day; and the judge sends
his compliments, Mr. Starr? Is that his mission? Is that the mes-
sage from this court that is to be handed to Mr. Starr upon a
silver platter, with all the formalities of polite society? Is that
what Floyd Wilson was employed or engaged to do?

No. This court did not have anything to do with that com-
mand.

In the fall of 1895 Starr was retried before Parker. After
being granted a new trial by the Supreme Court, the outlaw
feared nothing more than a conviction of manslaughter. Friends
of the dead marshal were also uncertain of the result, and many
thought it would be impossible to secure another conviction.
Starr went on the stand and corroborated the most damaging
testimony against himself. He admitted that he advanced on
Wilson all the time, and was standing almost over his prostrate
body when the fatal shot was fired. 18

"The wicked flee when no man pursueth," charged the white-
haired Parker, "but the righteous are as bold as a lion. A man
is to be judged by his consciousness of the right or wrong of
what he does. ... If he flees from justice, if he goes to a dis-
tant country and is living under an assumed name because of
that fact, the law says that is not in harmony with what inno-
cent men do, and jurors have a right to consider it as an evi-
dence of guilt ... a presumption of fact ... a silent admis-
sion by the defendant that he is unwilling or unable to face the
case against him ... a confession that comes in with other
incidents, the corpus delicti being proved, from which guilt may
be cumulatively inferred." 19 And Starr was again convicted of
murder and sentenced to die.

"Reversed and remanded for a new trial," ruled the Supreme
Court. Flight of the accused did not raise a "legal presumption"
of guilt so that an "inference of guilt" could be drawn there-

"The Wicked Flee"U3

from. At the most, wrote Justice White, it was only one of a
series of circumstances to be considered by the jury with the
reasons that prompted it, and even then "its force is slight."
The law on the subject of the weight to be given to the evidence
of flight of the accused was "identical with instructions here-
tofore held by this court to be fatally defective." 20 The high
tribunal had corrected Parker on this matter in the cases of
Alexander Allen and Sam Hickory, in which the judge's lan-
guage was "substantially similar." So Parker "should know
the law."

A review of the thirty-seven reversals of his court shows that
most of the errors he made were the outgrowth of his philosophy
that law was a subject beyond the experience of the average
frontier juror and that they needed guidance. The polyglot sec-
tion of American society, so entirely different in its legal setup
than any other in the United States with many nations within
the western district and each possessing its own system of laws
and courts created judicial difficulties that required exten-
sive explanations to juries. When an offense occurred in which
whites, blacks, foreigners, and Indians were involved, jurisdic-
tion could not be determined by color or race alone. The recon-
struction treaties of 1866 had freed the Indian's slaves. Previ-
ous treaties had established the immunities of adopted or natu-
ralized citizens, and the slaves when freed and adopted became
Indians in the sight of the law, with the immunities of the In-
dian. Evidence had to substantiate the significant statement
of the indictment, "a white man and not an Indian," or "a
Negro and not an Indian"; for if it was proved during the
trial that the parties to the crime were Indians, either by blood,
treaty, or adoption, the indictment was quashed. The judge
of the United States court had to know the laws of the Indian
nations, and they were not the same in bestowing citizenship.
Parker had to explain these treaties and laws to the juries; he
quoted Scripture, gave illustrations, and used figures of speech
to employ language within the grasp of these lowly trained men;

184 LAW WEST OF FORT SMITH

and consequently his charges amounted to from twenty to fifty
pages of material. On one occasion Solicitor General Edward
B. Whitney complained that "in one case on my desk his
charge contains 70 large and closely typewritten pages where
five pages would have been ample." 21

The Supreme Court knew these conditions, but the majority
of the justices felt that his lengthy discourses from the bench
"infringed upon the rights of the accused"; that his charges
went beyond mere exposition and became "inaccurate, prolix
and prejudicial toward the defendant"; and that his strong
feeling against corrupt and lawless characters often caused him
so to explain the rule of evidence as to take the evidence away
from the jury and "confuse the law as to its weight and compe-
tence." 22

On the other hand, the Supreme Court reversed Parker many
times on points not raised by defense attorneys. Instead of in-
sisting that they specify the exceptions, the justices allowed
"general exceptions," as in Alexander v United States, the first
case appealed. In Hicks v United States, 23 November 27, 1893,
Justice David J. Brewer, dissenting, scored the court because
errors "were challenged by only a single exception running to
them as an entirety; which was not noticed in the motion for
a new trial, or in the assignment of errors, and is evidently an
afterthought of counsel, with the record before them, studying
up some ground for a reversal"; and added that "the opinion
and judgment of the court proceeds in disregard of rules long
ago established in regard to the conditions under which an ap-
pellate court will review the instructions given on the trial."
Several other cases were sent back to Parker where "no suf-
ficient exception was taken."

Often, too, the court "sacrificed justice to the merest kind of
objection." In Lewis v United States, 24 December 5, 1892, Jus-
tice Brewer stated that "the discretion vested in the trial court
as to the manner of challenges" was no error sufficient to jus-
tify a new trial. Justice Brown concurred. Justice R. W. Peck-
ham, dissenting in Grain v United States 25 April 20, 1896,

"The Wicked Flee" IBS

thought the judgment of the court "seems to proceed, not alone
upon the merest technicality, but also upon an unwarranted
presumption of error arising from a formal statement in the
record showing that the defendant was duly arraigned and
pleaded not guilty," and declared the reversal of the trial court
"without an allegation, or even a pretense, that the defendant
has suffered any injury by reason of any alleged defect of char-
acter hi question ... a result most deplorable."

Justice Brewer wrote an even more vigorous and caustic dis-
sent when the court saved John Brown from the gallows the
third time because it said Parker had committed reversible error
in stating that "reputation must grow out of the dispassionate
judgment of men who are honest men and good men, and able
and competent to make up a judgment of that kind. It is not the
judgment of the bad people, the criminal element, the man of
crime, that is to fasten upon a man and blacken his name."

Said Justice Brewer:

This part of the charge is, as a whole, unobjectionable. . . .
The admonition was just and sound. Reputation is the general
judgment of the community in respect to the witness whose repu-
tation is challenged, and is not made up by the flippant talk of a
few outlaws. . . ,

The testimony discloses an outrageous crime, showing the de-
fendant, in connection with another party, in the nighttime
called from their slumbers two officers of the law and shot
them down, without provocation. . . . Three juries (36 jurors)
have agreed in finding a defendant guilty of the crime charged,
and such finding has each time been approved by the trial judge,
the judgment based upon the last verdict ought not be disturbed
unless it is manifest that the verdict is against the truth of the
case. . . . Justice and the protection of society united in saying
that it is high time such a crime was punished. . . . 26

In Isaacs v United States? 1 November 11, 1895, the court
admitted the assignments of error were "so obviously frivolous
that no discussion of them is necessary."

In Garland v State of Washington, 28 in 1914, Justice William

186 LAW WEST OF FORT SMITH

R. Day, referring to the identical question of law on which the
Supreme Court reversed Parker in the Grain case, said:

Technical objections of this character were undoubtedly given
much more weight formerly than they are now. . . . Notwith-
standing our reluctance to overrule former decisions of this court,
we are now constrained to hold that the technical enforcement
of formal rights in criminal procedure in the Grain case is no
longer required in the prosecution of offenses under present sys-
tems of law, and ... is not in accord with the views herein ex-
pressed. . . ,

Strange to say, the court hi later years also departed from
the rule of flight and upheld criminal cases containing sub-
stantially the same language as used by Parker in Starr's case. 29

Under the federal judicial system a federal judge could ex-
press rather freely his opinion on the weight of evidence in a
criminal case. Parker was "prone to emphasize first the govern-
ment's and then the defendant's theory . . . and often used
strong statements favorable to the prosecution," which were
reversible error except where cured by "equally vigorous state-
ments favorable to the accused." It was "difficult for him to
frame his charges in colorless language." 30 The practice is still
followed in the federal courts, and Judge Parker's remarks
"would probably seem mild compared with the remarks of some
present day federal judges." 31

Perhaps if Parker had not so openly criticized the Supreme
Court, it would not have been so inclined to ferret out tech-
nical points to his disfavor. It was more than the judge could
bear. For six years his irritation smouldered. The reversals in
the Starr case 32 sparked it to flame.

He intimated that he was more familiar with criminal court
procedure and criminal law than were justices of the appellate
court. "I am not," he stated, in February, 1896, "opposed to
the right of appeal. I merely prefer that my decisions be re-
viewed by courts specializing in criminal law, and that all tech-

"The Wicked Flee"lS7

nicalities not affecting the guilt or innocence of the accused be
ignored. The convicted criminal should have the right to have
his case reviewed upon a writ of error, but ... the case should
be passed upon according to its merits. The Supreme Court,
being learned in the civil law and not the criminal law, looks to
the shadow in shape of technicalities instead of the substance
in the form of crime." 3S

And later in the year he stated, "I have given every criminal
a chance to prove his innocence, but I never made hair-splitting
distinctions in favor of the criminal at the expense of life." He
characterized the appellate court as "knifing the trial judge in
the back and allowing the criminal to go free." 84

While denouncing the Supreme Court, Parker also vigor-
ously assailed Attorney General Judson Harmon and Solicitor
General Whitney. In an open letter published in the St. Louis
Globe-Democrat, dated February 3, he said: "They are sup-
posed to speak for this court when cases go up on appeal, but
they have blundered badly and let the opposition run off with
the show." A bitter controversy arose, through letters and the
newspapers, in which the issues developed into personalities.

The Solicitor General described Parker's interpretation of
the law of self-defense "obsolete and applicable to an age hi
which swords, spears and knives were used as deadly weapons"
and labeled the idea that a defendant when attacked "must use
every means in his power otherwise to save his own life, such
as retreating as far as he could, or disabling his adversary with-
out killing him" as ridiculous. "If the learned judge would
confine himself to statements of the law instead of going into
the merits of the case, he could avoid innumerable errors."

And Parker, in reply to the Solicitor General's open letter,
labeled his charges "a string of falsehoods" made by "a legal
imbecile" who spoke a "personal screed . . . croaked by
every foul bird of evil, hissed from every wicked serpent of
crime . . . for all these twenty years."

He contended further that Whitney "knew nothing of the

188 LAW WEST OF FORT SMITH

frontier," and therefore "was unable to cope with experienced
frontier criminal lawyers." He hadn't even tried, Parker added.
"On five occasions 35 he has given up without a struggle, con-
fessing error and agreeing with the opposition."

"I have actually argued at the Supreme Court eight mur-
der cases coming from Judge Parker," the Solicitor General
stated to the President, "and I have been, to some extent,
cognizant of the facts of seven others."

"Whitney knows this is not true," Parker replied. "He has
never argued one case, and he could not do so, for he has never
tried a murder case in a trial court." And he added that the only
time Mr. Whitney had "exercised his gigantic intellect before
the President of the United States" was in asking for some
outlaw's pardon.

"Is he a pardon broker?" demanded Parker. "This brings
me to the conclusion that he is on the side of the man of crime,
the man of blood. . . ."

And Whitney scathingly retorted that the judge was "ig-
norant and careless" and only trying to cover up for his "gross
errors." He was the best friend of the criminals, Whitney said,
for he "assures them reversals and thus gives them chances of
escape which the most adroit criminal lawyers could not pos-
sibly accomplish."

"A lame attempt at the suppression of facts!" Parser fired
back. "The feeble and childish reply of a legal simpleton . . .
who knows no more of criminal law than he does of the hiero-
glyphics of the Great Pyramid."

Thoroughly aroused, the judge cracked down at Attorney
General Harmon:

I have, for four lustrums, been aiding the battle between the
law and human rights on one hand, and wicked and unrelenting
men of crime on the other. . . . Do you not think, my dear sir,
that if instead of the solicitor general in hot haste confessing er-
ror, he would have looked into the cases far enough to under-
stand them, and that someone in your department would have

"The Wicked Flee"lS9

orally argued these cases before the Supreme Court, that that
court might have had a better understanding of them? Sir, do you
know that no murder cases going to the Supreme Court under the
law as it now stands has ever been orally argued before that
court? . . . Liberty and life are precarious unless those in au-
thority have sense and spirit enough to defend them under the
law.

The controversy was one of the most bitter and vituperative
ever conducted in the border press. Parker's action in not send-
ing a copy of his letter to the Attorney General, allowing the
latter to learn of it from the newspapers, caused considerable
speculation. The St. Louis Republic charged that the judge
aspired to an appointment to the Supreme Court bench, and
that his motive was politics.

Parker had plainly stated bis motive in his letter to the Justice
Department:

I think my duty to the public, my duty to the law, my duty to
peace and order, my duty to the innocent and unoffending people,
and my duty to the murdered dead, all demand that I should,
in the name of right and justice, protest against this extraordinary
and unusual method of getting rid of important criminal cases
which have been taken on appeal.

The citizens of the Indian country were behind Parker. It
was a tough job to fight "the worst bands of desperadoes, mur-
derers and outlaws to be found in any civilized land." The
"almost necessary result" was to "shock the man of blood" into
"dread of the law" by aiding the marshals who brought in the
bad men, helping the district attorneys prosecute the murderers,
and "leading" the juries to a verdict of death. The people
wanted results, there was no time for technicalities.

The Solicitor General, however, disagreed:

We have little difficulty in sustaining the judgment of other
judges in murder cases, and I believe that no other judge has
found it necessary to write open letters abusing the Supreme

190 LAW WEST OF FORT SMITH

Court. The continual mistrials before Judge Parker are the more
to be deplored because in most cases the prisoners are probably
guilty and would have been convicted if the court had submitted
the case with the very barest statement of law of murder and
without any denunciation or attempt to usurp the jury func-
tions. . . .

Where the charge of the trial judge takes the form of animated
argument, the liability is great and the propositions of law may
become interrupted by digression, and so intermingled with in-
ference springing from forensic ardor, that the jury are left with-
out proper instructions; their appropriate province of dealing with
the facts invaded; and errors intervene which the pursuit of a
different course would have avoided.

The Judge replied:

The truth is the administration of the civil laws has so absorbed
the attention of the court that they have been looked upon as
the greatest rights of man ... all over the country criminal law
has fallen into disgrace due to corrupt practices which have al-
lowed the man of influence and money to break through the
meshes and go free, and the sickly sentimentality in favor of the
criminal. ... In the past five years 43,000 persons, more than
are in the regular army, have been murdered in the United States.
Parallel with these have been 723 legal executions and 1,118
lynchings. Think of an average of 7,317 murders a year! Last year
10,500 persons were murdered in this country; that is at the rate
of 875 a month, while five years ago the number of murders
were, for the year, but 4,290. . . . This fearful condition exists
because the bench is not alive to its responsibilities. . . . The
law must be vindicated ... if this great government is to teach
to the people the high object lesson that they can depend on its
courts and thus secure protection to life and destroy that hide-
ous monster which now curses the country called the "mob."

And he pointed to the fact that there had been only three
cases of mob violence in his jurisdiction in twenty years. 36

But the controversy had been carried too far. The newspa-
pers blazoned the affair. Friends of the offended Supreme Court

"The Wicked Flee" 191

shamed Parker for bad taste. Friends of the offended Attorney
General and Solicitor General complained to the President. Dis-
satisfied lawyers who had seen their clients 7 necks placed in the
noose, to vindicate themselves and their clients, damned the
federal court and its judge for "cruelties," "inhumanities," and
"wickedness." Considering only the number of men who had
died on the scaffold, others characterized Parker as "harsh" and
"cruel," "a monomaniac on the subject of crime." And the "sen-
timentalists," sensitive to the jibes of other regions about the
hangings that took place in their midst, demanded more than
"reduction of territory" to modify the operation of the court in
behalf of justice.

In a heated speech before the House of Representatives, Con-
gressman John S. Little of Arkansas charged that, although "the
honorable judge of the court presumes that he has hanged all
the mean men and left the good ones there," the Indian country
was still "the very glen of criminal miasma, the fumes of the
poisons from which are not only generating the best blood of
that country, but its contaminating influences are extending
into the adjoining states," 3T and that the situation would not
improve, regardless of the number executed, until the Indian
country "has been organized into a territory."

He admitted that Judge Parker "has done more to stay the
progress of murder and crime in the Indian country than any
other power"; that "his name was a terror to evil doers"; but
"while this court has been serving its purpose, it has done much
to bring the good name of the city of Fort Smith and Western
Arkansas into disrepute." He let the country know that he did
not want the institution referred to as "the Parker slaughter
house" retained in his district any longer, despite the fact that
many of the officials belonging to the "slaughter house gang"
were his best friends.

And in the Senate before men who had never seen the
desperado riding red-handed over the Indian country, unmind-
ful of the rights of property, raiding trains, desolating homes,

192 LAW WEST OF FORT SMITH

and subjecting defenseless women to the most unspeakable in-
dignities George Vest of Missouri arose to declare the Fort
Smith hall of justice "a shambles, a stench and a disgrace, a
butcher's domain."

Step by step, Congress had "encroached" upon the Fort
Smith court, "taking away its criminal jurisdiction over the In-
dian country by degrees, like the slow bleeding to death of an
unfortunate patient under the knife of the bungling surgeon." 38
Immediately following the act of February 6, 1889, in which
appeals were allowed to the Supreme Court, it approved an act
on March 1, establishing the first white man's court in the
Indian country at Muskogee. Principally a court of civil juris-
diction, putting into force the civil laws of the State of Arkan-
sas, it interfered with the criminal jurisdiction of the Fort
Smith court to the extent that it was given exclusive, original
jurisdiction of all offenses against the laws of the United States
not punishable by death or imprisonment at hard labor. By
this same act, apparently repealing the act of January 6, 1883,
annexing a certain portion of the Indian country to the North-
ern District of Texas, the Chickasaw Nation, and a greater
portion of the Choctaw Nation as far north as the Canadian
River were annexed to the Eastern Judicial District of Texas,
with the court seat at Paris, and the Paris court was given ex-
clusive, original jurisdiction of all federal law violations within
this portion of the territory of which jurisdiction was not given
to the new court at Muskogee. 39

On May 2, 1890, Congress approved an act creating the Ter-
ritory of Oklahoma, comprising all that part of the Indian coun-
try not actually occupied by the Five Civilized Tribes and the
Indians of the Quapaw Agency in the extreme northeast corner
of the country, except the unoccupied part of the Cherokee Out-
let, together with that portion of the United States known as
the Public Land Strip (No Man's Land). An independent ter-
ritorial judicial system, with three judicial districts, was estab-
lished with full jurisdiction of all cases originating in Oklahoma

"The Wicked Flee" 193

Territory and that portion of the Cherokee Outlet not included
in Oklahoma Territory. The act defined the Indian Territory
as "all that portion of the United States bounded on the north
by Kansas, east by Arkansas and Missouri, south of Texas, and
west and north by Oklahoma." Thus the new court at Musko-
gee was restricted to less than one-half its area, but given in-
creased jurisdiction and power over all civil cases in the do-
main remaining as Indian Territory except cases under juris-
diction of the tribal courts. Fifty-six chapters of Mansfield's
Digest of the Statutes of Arkansas were put in effect; the judge
of the court was given the power to extradite persons who had
taken refuge in the Indian Territory and to issue requisitions
for fugitives upon governors of other states and territories;
and the right of appeal and writs of error to the Supreme Court
of the United States were allowed. 40

By an act of May 3, 1892, still another court was given juris-
diction in the Indian Territory. This act created a third di-
vision of the District of Kansas from portions of the First Dis-
trict. For judicial purposes the Counties of Miami, Linn, Bour-
bon, Crawford, Cherokee, Labette, Neosho, Allen, Anderson,
Coffey, Woodson, Elk, and Greenwood were established as the
Third District of Kansas, and all offenses against the laws of
the United States within these counties and the limits of the
Quapaw Agency in the Indian Territory were to be tried in the
court of the Third Kansas District at Fort Scott. 41

But of all these acts "none were so vicious, nor had such de-
pressing, effect" as the one with which Congress now "swooped
down upon its victim like some monster bird of prey . . . prac-
tically demolishing this greatest court on earth, signaling the
ending of its career as such, and sweeping it, almost, from its very
foundation." 42 By an act approved March 1, 1895, it divided
the Indian Territory into three judicial districts, to be known
as the "Northern," "Central," and "Southern" districts. The
northern district included the Quapaw Agency and the area of
the Creek and Cherokee Nations, with headquarters at Musko-

194 LAW WEST OF FORT SMITH

gee and court towns at Vinita, Miami, and Tahlequah; the
central district embraced the Choctaw Nation, with headquar-
ters at South McAlester and court at Atoka, Antlers, and Cam-
eron; and the southern district comprised the Seminole and
Chickasaw Nations, with headquarters at Ardmore and court
at Purcell, Pauls Valley, Ryan, and Chickasha. A special pro-
vision constituted the three district judges into a court of ap-
peals, presided over by the senior judge acting as chief justice,
to which could be appealed decisions of any of the trial courts,
and South McAlester was designated seat of the appellate court.
Appeals to the circuit court of appeals were provided in lieu of
direct appeals to the Supreme Court of the United States. These
courts were given exclusive, original jurisdiction of all offenses
committed in the Indian Territory, "except such cases as the
federal courts at Paris, Texas, Fort Smith, Arkansas or Fort
Scott, Kansas, may have already proceeded against"; and Sep-
tember 1, 1896, set as the date when the authority of these out-
side courts would pass to the new federal courts within the
territory. The jurisdiction of the Fort Smith court was spe-
cifically limited to the handful of counties in Western Arkan-
sas. 43

Judge Parker's great white head dropped. How keenly he
felt this stripping of authority is shown in his famous grand
jury charge of August 5, 1895, 44 when he spoke of the trust
reposed in the people of Arkansas for enforcing the law in the
Indian country:

When the court was removed from Van Buren to this place, the
same power of protecting remained in the hands of the people of
Arkansas, and I want to say that for twenty years, since the open-
ing of the first court here, these people have performed their duty
faithfully and well. . . . Why a distrust has been entertained
of them or why the jurisdiction was changed, I am not prepared
to say. ... All I have to say is that much has been falsely as-
serted in regard to it. I can say, in vindication of these jurors
and of the people, that the law has been as well enforced by them

"The Wicked Flee 99 195

as affecting that country and all the rights of its people, as it is
enforced in any state of the union anywhere. . . . More cases of
criminals committing high crimes have been tried, a higher per-
centage of arrests have been made, more convictions have been
obtained, more men brought to justice, the law better vindicated,
better upheld and better sustained and the rights of the people
better protected by the people who come to this court as jurors
than in any court in the country.

To another grand jury in February, 1896, he said: "It was
a desire for gain at the expense of law enforcement that caused
the change."

Again In May, 1896, in referring to the administration of jus-
tice in the territory by these new courts, he added:

At my first term of court it was rather hard to get good, honest
men to come out of that country and give testimony against these
desperate characters. A reign of terror existed over there, and the
peaceful, law-abiding citizens would rather put up with the an-
noyances they were subjected to than to come out and testify
against the criminals and thus incur the enmity of these bad men
and their friends and risk life by assassination at their hands. I
fear the same reign of terror will again prevail when jurisdiction
of higher crimes are taken away from strong outside courts and
given to Indian Territory courts.* 5

Judge Parker was now in the full vigor of manhood at the
age of fifty-eight, but the twenty-one years spent in the arduous
task of this unusual tribunal had left their mark upon the man,
upon the judge. He looked like a man of seventy. Yet he "pre-
sided with the same ease and dignity that has characterized his
deliberations all these years. His kindly face belies the many
hard things that have been said of him, and he is the same
counsellor and friend to the wayward that he has always
been." 46

xn

ADJOURNED, FOREVER

THE LAST PERSON TO DIE ON THE FORT SMITH GAJ>

lows was George Wilson. Wilson was a white man, twenty-six
years old. A swindler, thief, and forger, he had been out of the
state penitentiary of Tennessee less than a year when he killed
Zachariah W. Thatch, a traveling companion from Washing-
ton County, Arkansas, as the latter sat at their campfire near
Keokuk Falls in the Creek Nation, on May 15, 1895. After rob-
bing the body, he threw it into Rock Creek, then stole Thatch's
team and wagon and camp outfit, which was still in his pos-
session when he was arrested a few days later. Wilson claimed
Thatch was his uncle, and said that Thatch had left the prop-
erty in his care and gone farther west into the Kickapoo coun-
try. 1

Meanwhile the corpse had floated downstream toward the
North Canadian River, where it was discovered lodged among
some rocks and logs with two fingers shot away and the head
split from the blow of an ax. Wilson identified the body and
admitted that he was not the dead man's relative, that his proper
name was James C. Casharego of Conway, Arkansas. But he

197

198 LAW WEST OF FORT SMITH

denied that he had murdered Thatch. Several persons, however,
stated they had seen the pair in camp together the night of the
slaying, and that shortly after dark two shots had been fired.
There was blood on Wilson's trousers and other garments, and
on an ax still in the wagon.

Deputy marshals located the camp site. Wilson had burned
a fire over the spot where his victim had bled on the ground,
and they found no surface evidence of the slaying. But dry
weather at the time of the crime had caused the earth to crack,
and blood from the murdered man had run deep into one of
the fissures. The officers dug deep into the crack and collected
several chunks of blood-saturated earth, which were produced
at Wilson's trial.

In pronouncing his death sentence, Judge Parker said:

Even nature revolted against your crime; the earth opened and
drank up the blood, held it in a fast embrace until the time it
should appear against you; the water, too, threw up its dead and
bore upon its placid bosom the foul evidence of your crime.

Wilson appealed to the Supreme Court, but the higher court
upheld Parker's decision. Wilson was resentenced, and hanged
July 30, 1896.

In Judge Parker's twenty-one years on the bench, 13,490
cases had been docketed, exclusive of more than 4000 petty
crimes that got no farther than the commissioner's courts. Of
this total, 9454 had been convicted by a trial jury or had entered
pleas of guilty, and 344 had been tried for offenses punishable
by death. Of the 344, 165 had been convicted and 160 of these
sentenced to the gallows. Seventy-nine had been hanged, 2
killed attempting to escape, 2 had died in jail awaiting exe-
cution, 2 had been pardoned, 46 commuted by the President
to terms from ten years to life, and 2 granted new trials and
finally discharged by acquittal or nolle prosequi. Twenty-seven
had been given new trials on appeal to the Supreme Court, and
of these 9 had been acquitted, 15 convicted on charges of smaller

Adjourned, Forever 199

degree with imprisonment from one year to life, 2 nolle prosequi
and 1 commuted. Of the 5 remaining of the 165, 2 had died in
jail awaiting sentence, 1 had been declared insane and trans-
ferred to an asylum, 1 returned to the Indian courts for lack of
jurisdiction, and 1 out on a bond of $5000 had failed to return
and his bond had been forfeited. 2

Parker had taken pardonable pride in eradicating lawlessness
from his jurisdiction. He had taught the criminal class to fear
the law and respect the rights and property of peaceful citizens,
and had helped the Indian advance to a higher civilization.

The Indians loved and respected him. While in general they
hated the white man, they looked upon Judge Parker as their
friend and protector. Although he "regarded his court as having
been established for the protection of the innocent, unoffending
Indian ... he held no maudlin sympathy for the criminal In-
dians. They received exactly the same treatment at his hands as
other criminals. But he was fair, and the Indians came to know
that he was fair, and acted accordingly." 3 They expressed their
"liberality" towards full jurisdiction of the United States courts
in the Indian Territory with the wish that "the good name of
Judge I. C. Parker would not be villified. . . . Judge Parker is
good enough for any law-abiding people, and too good for some
visitors we have out here ... a well known class of land grab-
bers, townsite boomers and vigilantes . . . clamoring, howling
and sending up to Congress such great and terrible petitions for
help and mercy . . . while striving daily to rob the Indians
of what they have left of that which is justly theirs. ..." *

They looked upon the enlargement of federal courts in the
territory as an effort to suppress them just as the South had
been oppressed under the carpetbagger regime. They feared
that these courts, which permitted no Indian to serve on a jury,
would be used by the white men within their country to imprison
them unjustly and confiscate their lands, and boldly asserted
that the courts were not needed for them but for the white people
in the country, and that justice would be more readily attained

200 LAW WEST OF FORT SMITH

before Judge Parker, who was appointed for life, than in courts
where judges were appointed for four years. 5 "May God grant
that these courts may never get full jurisdiction until we can
elect our officers by ballot. . . ." 6

These tribes had been forcibly driven from their homes in
Florida, Mississippi, Arkansas, Georgia, North Carolina, and
Tennessee, cruelly driven like cattle across country over the
"Trail of Tears" to the land the government had set apart to
be theirs "as long as grass grows and water runs," and the white
man had followed. From the time of the earliest colony, disre-
gard for the rights, property, and life of the Indian had been
practiced, and the white man in the Indian country could see
nor more reason for respecting Indian claims here than elsewhere.
"So long as there remained on the frontier one square mile of
land occupied by a weak and helpless owner, there was a strong
and unscrupulous frontiersman ready to seize it, and a weak
and unscrupulous politician, who could be hired for a vote or
for money, to back him." T Parker was not so foolish as to think
that he could obstruct the tide of white civilization. He did not
even want to. But he knew that before their removal the In-
dians had been compelled to yield to mass aggression, and he
"was determined that in their new home they should not be
cowed, intimidated, robbed and murdered by individual ruf-
fians." 8

He wanted a while to protect them, to teach them that there
were good white men who respected their rights and would
punish their oppressors. In a little while, said Parker, the In-
dian would become "convinced that his true interest was to keep
pace with civilization," and then he could be absorbed as a will-
ing, devoted citizen. Twenty-one years' experience with the
Indians had taught him that they were a "religiously inclined,
authority respecting" people, living off the "honest fruits of
their labor" and "ambitious to advance as to the development
of their lands and conveniences of their homes"; in their coun-
cils were men of "learning and ability," and their "rapid progress

Adjourned, Forever 201

from a state of wild barbarism to that of civilization and en-
lightment ... in the past hundred years . . . had no parallel
in the history of the world." 9 Was it too much to ask the white
man to wait a little longer . . . ?

After years of agitation the Unassigned Lands had been
opened, and 50,000 whites poured in. Bit by bit other strips
of the Indian country or reservations Iowa, Sac and Fox,
Shawnee and Pottawatomie, Cheyenne and Arapaho, Cherokee
Outlet, Kiowa-Comanche had been added to this originally
settled land. The population was now 250,000, with 200,000
whites, an increase over the 60,000 population of 1875 of over
300 per cent. 10

Said Parker:

Beyond this tide of immigration, and hanging like the froth
of the billows upon its very edge is a host of law-defying white
men many of whom are refugees from justice who introduce
among the Indians every form of demoralization and disease with
which depraved humanity in its most degrading forms is ever af-
flicted. . . . While the Indian, hi many cases copies our vices,
he has failed to imitate our virtues because, as a rule, none but
the refuse of our population . . . have mingled among them.

Many in high authority censored the Indians for this lawless
condition and used it as leverage to deprive them of their tribal
governments. "United States marshals and Winchester rifles
will not solve the outlaw question in the Indian Territory,"
they claimed. "Civilization will. And civilization can only come
through a change in the conduct of the Indian governments
which are crude and uncivilized, and will remain so as long as
the influence of the white man is excluded." xl "This farce of
treating them as independent nations with whom it is necessary
to have treaties ... is a great mistake, so early made and so
long followed. The Indian needs law and government to become
civilized, and if he has no power to procure these for himself,
he must either receive them at our hands or remain a savage." 12

Parker replied:

202 LAW WEST OF FORT SMITH

Perhaps things would have been different had the government
given them the protection it promised in 1828. "Not only will we
give you farms and homes in fee simple," it said, "but we will
protect you in your rights. We will give you every protection
against lawlessness; we will see that every refugee, every bandit,
every murderer that comes into your country is put out." Not
one of these pledges has ever been kept, except for the work
that has been done by the United States courts having jurisdic-
tion over this country. 13

Upon Parker and his marshals had fallen this task, and it had
been necessary for him to be stern on the bench and to bring
all the strength of his nature to bear upon the enforcement of
law.

The court was his idol; with its fall his mission was ended;
and as the final day approached, it was reported that for the
first time the judge, always the example of perfect strength and
health, was too ill to hold court. "Dropsy. An affectation of the
heart/' the town gossips called it. His physician said it was the
result of the enormous amount of work he had accomplished in
twenty-one years.

As the days passed the court opened each morning and
closed each evening as was customary. Unable to preside in
person, Parker kept in touch on all important matters and issued
orders from his sickbed. The grand jury met and conducted
its investigations, but withheld its report pending the judge's
return.

A vast number of cases accumulated. On August 24 Judge
Caldwell, who by now had risen to the position of Judge of the
Eighth Judicial District, issued an order for the Honorable
Oliver P. Shiras of the Northern District of Iowa, at Dubuque,
to proceed to Fort Smith and preside over the court two days,
August 27 and 28. The grand jury returned 187 true bills and
ignored 58. On the following day, 33 of the 58 indicted entered
pleas of guilty, and Judge Shiras set the remaining cases for trial
during the coming term.

Adjourned, Forever 203

As the day approached designated by Congress for ending
the criminal jurisdiction of Parker's court over the Indian Ter-
ritory, the St. Louis Republic sent its famous woman reporter,
Ada Patterson, to Fort Smith to interview the judge. She had
been told that he was stern and cruel, and she experienced an
uncontrollable dread of the meeting. She secured the interview,
however, and gave her opinion of him in the following words:

He is the gentlest of men, this alleged sternest of judges. He
is courtly of manner and kind of voice and face, the man who has
passed the death sentence on more criminals than has any other
judge in the land. The features that have in them the horror of
the Medusa to desperadoes are benevolent to all other human-
kind. . . .

He spoke on his personal views of crime and law enforcement
with such feeling that he sat up from his pillows . . . and his
weak voice grew strong. ... "I have been accused of leading
juries. I tell you a jury should be led! They have the right to
expect it; if they are guided they will render justice, which is the
greatest pillar of society. . . . People have said that I am a cruel,
heartless and bloodthirsty man, but no one has pointed a specific
case of undue severity. ... I have ever had the single aim of
justice in view. No judge who is influenced by any other con-
sideration is fit for the bench. 'Do equal and exact justice' has
been my motto, and I have often said to the grand juries, 'Permit
no innocent man to be punished; let no guilty man escape.' "

She described a visit to the gallows "so inseparable with
Judge Parker 's name/' and quoted a prominent member of the
Fort Smith bar:

"Judge Parker is learned in the law; he is conscientious of the
administration of it. He has a kind heart and a big soul. He is ab-
solutely faithful to his home ties. All I could say of him for days
would be summed up in this: He is a good man."

She concluded:

He is a good man! What a tribute that is by one man of the
world to another! What music to the ears of the woman who loves

204 LAW WEST OF FORT SMITH

him! I am glad to have the honor of knowing this alleged cruel
judge. It is darkly, indeed, the press and people view him through
the glass of distance. He is a twentieth century hero, worthy of
the fame of the most just of Romans. More than all, as the old
lawyer said to me, while a moisture he was not ashamed of made
the office belongings and the face of the visitor look misty and far
away, more than all, 'He is a good man.'

On September 1, 1896, Court Crier J. G. Hammersly shouted
his "Oyez! Oyez! The Honorable District and Circuit Courts
of the United States for the Western District of Arkansas, hav-
ing criminal jurisdiction of the Indian Territory, are now ad-
journed, forever. God bless the United States and the honor-
able courts 1"

It was still the fervent hope of everyone connected with the
court that Judge Parker would soon recover, and during Sep-
tember and October the work was allowed to accumulate for
his disposition. But on Monday, November 2, the day for the
opening of the November term, Parker was still too ill to leave
his home. Judge John E. Garland of the District of South Da-
kota was ordered to Fort Smith by Judge Walter Sanborn of
the Eighth Judicial Circuit, and he held court during the re-
mainder of Judge Parker's life. For Court Crier Hammersly,
in sounding the death knell of the famous jurisdiction, had
also sounded the death knell of its judge. On November 17 he
was dead. 14

It was hailed as a gala day by the prisoners in the old jail
awaiting trial . . . whose cases had been listed on the docket be-
fore the arrival of the time for the finale of the court's jurisdiction
over the Indian Territory . . . and hoped during the months
Judge Parker was too ill to attend court that he might continue
confined in his bed until their cases were disposed of, that with
some other judge upon the bench they would stand better chances
of light sentences or of possible acquittal. The announcement of
Judge Parker's death was, therefore, the signal for a jubilee. Word
was quickly passed from cell to cell. "The devil's shore got de ole

Adjourned, Forever 205

cuss dis time! " sang out a negro criminal. "Is he dead? Whoopee!"
yelled another, and, almost in a twinkling, those prisoners nearest
the ones first learning of Judge Parker's demise took up the re-
frain, and for a brief period it looked as if pandemonium was
about to break loose, but ... Berry, the astute jailer, was on the
ground and by prompt action and energetic measures he quelled
the disturbance, and the offenders were brought to understand that
open contempt for Judge Parker, even when dead, would not be
tolerated in the Federal jaiL 15

Throughout the Indian country, and in Judge Parker's big
brick home on North Thirteenth Street, where he had lived his
last fifteen years, there was mourning. The funeral was at two
o'clock the next day. It was the largest ever held in the little
city. Notable personages came from everywhere. Public and
private business was suspended. Flags stood at half mast.

The casket was placed in the huge front parlor of the big
house and covered with flowers. Mrs. Parker and Charles sat
at the head of the coffin. The room was filled with other mem-
bers of the family and close friends, among them officers of the
court and attorneys, Odd Fellows, members of the Grand Army
of the Republic, and Knights of Honor. Father Smyth conducted
the brief services, and the family and close friends filed out;
then large groups awaiting outside passed through the room to
gaze upon the figure in the casket.

The National Cemetery, where he was buried, overflowed
with thousands who accompanied the body to its last resting
place. The grave was filled and sprinkled with holy water, and
there were expressions of condolence.

Many proclaimed him the greatest judge in all the history of
the West. "American civilization has produced a multiplicity
of character, but only one Parker. ... In the administration
of the law for the Indian country, he was a necessity. . , . It
is impossible to even imagine what the record of the territory
might have been had not the strong arm of Judge Parker ex-
tended over it. . . ." Even his archenemy, J. Warren Reed,

206 LAW WEST OF FORT SMITH

added a grandiose gesture: "Our beloved judge has fallen asleep.
. , , For him the sun of existence has dropped its golden light
of eternity. When we think of his bereft family the wife, his
sons we long to speak words of sympathy, as we stand with
them in the shadow of a great affliction." But the most touching
tribute was paid by Pleasant Porter, Principal Chief of the
Creeks, who, in behalf of all the tribes of the Nations, placed
upon his grave a simple garland of wild flowers.

APPENDICES

APPENDIX A
Chronology of Hangings

("Chronology of Hangings" lists by date the seventy-nine execu-
tions carried out under Judge Isaac C. Parker, the names of those
executed, and a resume of their crimes, dates committed, victims,
and other pertinent details available. The records show that from
the date of the federal court's creation, March 3, 1851, until its re-
moval to Fort Smith in 1871, nine persons were sentenced to death
at Van Buren; one was commuted to life imprisonment at Little
Rock and afterwards released by Confederate soldiers; one was
commuted to life imprisonment and later pardoned; four were com-
muted to terms of imprisonment of shorter length; and one escaped
and was sought nine years before he was recaptured, resentenced,
and executed at Fort Smith. Also not included in this Chronology
are seven murderers hanged on the Fort Smith gallows following
the execution of John Childers and before the advent of Judge
Parker.)

209

210 APPENDIX A

September 3, 1875 Daniel Evans

William Whittington

James Moore

Smoker Mankitter

Samuel Fooy

Edmund Campbell
The first famous sextet. See Chapter III.

April 21, 1876 Orpheus McGee
William Leach
Isham Seely
Gibson Ishtanubbee
Aaron Wilson

ORPHEUS McGEE murdered Robert Alexander on April 20, 1874.
Alexander's body was found in the timber about sixty yards from
his home, shot through the back and the neck. McGee was arrested
in possession of his victim's rifle. In his confession he claimed that
Alexander had murdered a friend, for which crime he had not been
prosecuted; that he had lured him from his house into the timber
by gobbling like a wild turkey, and as Alexander approached through
the brush, he had slain him for revenge.

WILLIAM LEACH murdered John Wadkins in the Cherokee Nation,
March 8, 1875. Wadkins was an itinerant minstrel who had hired
Leach to show him the road to Fayetteville, Arkansas, where he was
to play a performance the following evening. Wadkins never reached
Fayetteville. A month later a hunter, attracted by buzzards, dis-
covered the burned remains of a human body. The smaller bones had
been destroyed and the larger bones charred. The skull had been
punctured by a bullet. From the ashes deputy marshals recovered
pieces of clothing of the description worn by Wadkins, a knife and
screwdriver known to have been in his possession when last seen alive,
and two sections of catgut from the strings of his violin. Leach was
arrested when he attempted to sell Wadkins' boots.

"SQUIRREL" FUNNY, a white farmer, lived in the Chickasaw Nation
near Stonewall. He was unmarried and kept a Negro woman in his
employ as housekeeper and cook. ISHAM SEELY and GIBSON ISH-

Appendix A 211

TANUBBEE stopped at his home about midnight on May 10, 1873,
and were given accommodations before continuing their journey the
following day. Shortly before daylight the pair arose. Ishtanubbee
secured an ax from the yard. He chopped Funny in the head and
cut his throat as he slept. Seely beat the Negro woman to death with
a pistol. The pair then looted Funny's house, stealing a pair of boots,
pantaloons, and a dress. They burned the pantaloons, hid the dress in
a hollow log in a field back of the house, and traded off the boots
before they were arrested.

Fifty-six-year-old James Harris and his twelve-year-old son were
crossing the Indian country en route to Texas with a wagon and three
horses and the remnants of a stock of goods from a clothing store
he had operated at Beatty, Kansas. On October 12, 1875, they
camped near the Wichita Agency, twelve miles from Fort Sill. AARON
WILSON, a burly Negro twenty years old, stopped at their camp,
partook of their evening meal, and was invited to spend the night.
At midnight he crept from his blankets and killed Harris with an ax.
Harris* death cry awakened his son. The boy begged for his life;
Wilson calmly withdrew a double-barreled shotgun from the wagon.
The boy fled, but Wilson pursued him and killed him with a charge
of buckshot 175 yards from camp. The Negro then took the horses,
dressed himself in a new suit of clothes from the wagon, removed
the scalps of his victims, and rode off with them wrapped in a hand-
kerchief. Stopping at the Wichita Agency, he exhibited the scalps and
told the Indians he had taken them from two white men whom he
had killed, supposing from what he had heard of Indian character
that these would serve as a recommendation. The chief, however,
reported him to the agent. Wilson became frightened and rode
away, but was apprehended the next day by a squad of United
States troops that had been dispatched from Fort Sill.
For stolid indifference as to the result of his trial, Wilson surpassed
anyone ever tried in the Fort Smith court. In passing his sentence,
Judge Parker said:

You have been tried and found guilty of that most revolting and
terrible of crimes known to the land as murder. You have been aided
and advised by able and experienced counsel, who have done all that
could be done by any one under that most conclusive and convincing

212 APPENDIX A

set of facts which made up the damning evidence of your guilt. ... I
beg of you not to waste a moment of time, but to at once devote
yourself to the preparation of your soul to meet its God. Let me
entreat of you by every motive temporal and eternal to reflect upon
your past life and present condition and the certain death that awaits
you. There is but one who can pardon your offense; there is a Savior
who can wash from your soul the stain of murder. I beg of you to fly
to him for that mercy which you cannot expect from mortals. When
you return to the solitude of your prison, let me entreat you by all
that is dear to you in time, by all that is dreadful in the retributions
of eternity, that you seriously reflect upon your past conduct and your
present situation. Bring to your mind all the aggravated horrors of
that dreadful night when you sent two souls without warning into
the presence of their God, where you must shortly meet them as
accusing spirits. Bring to your mind the mortal struggles and dying
agonies of your murdered victims. Recall to your memory the face
of that murdered boy. . . .

The sentence was then pronounced. When Wilson was being taken
back to the jail, he said to his guards, "By God, that is nothing when
you get used to it I"

The other four received their sentences with no manifestations of
feelings. All claimed they were victims of vicious conspiracies.

William Leach bore the character of being one of the worst men
in the Cherokee Nation. Isham Seely, when remanded to jail and
just before his shackles were put on, jumped up, cracked his heels
together, and whooped: "Chick-a-mah!"

September 8, 1876 Sinker Wilson
Samuel Peters
Osee Sanders
John Valley

SINKER WILSON murdered Datus Cowan in the Cherokee Nation in
1867. He was arrested and convicted of the crime while the federal
court was still at Van Buren, but escaped and remained at large until
recaptured by United States marshals. He was taken to Fort Smith
and resentenced June 24, 1876.

On June 21, 1876, SAMUEL PETERS, twenty-eight, was convicted of
attacking and stabbing to death Charity Hanson at her home on
Hiwan prairie in the Choctaw Nation.

Appendix A 213

OSEE SANDERS, twenty-nine, killed Thomas S. Carlyle, a white man,
in a robbery near Tahlequah. About dark on the evening of August
6, 1875, Carlyle and his Cherokee wife were sitting in the passageway
that separated the two parts of their double house (a style of
architecture frequently seen in the Indian Nations) when Sanders and
a stranger rode to the gate and spoke to them. Carlyle recognized
Sanders and invited him in, sending his young son to open the
gate, which was fastened from the inside. As the men approached the
house, Carlyle noticed that both carried pistols in their hands. The
stranger seized Carlyle, and Sanders covered the wife with his pistol.
The frightened woman grabbed her child and fled, escaping in some
tall grass 150 yards away. She heard three shots and saw the two
men ride off. When she returned to the house, her husband lay dead
in a pool of blood. His pocketbook had been turned inside out, and a
trunk containing $1200 in cash and a quantity of Cherokee warrants
was missing. Sanders was arrested the next day. He refused to name
his confederate, and the latter was never apprehended or identified.

JOHN VALLEY was convicted on May 20, 1876, for the robbery and
murder of Eli Hackett in the Cherokee Nation.

December 20, 1878 James Diggs
John Postoak

JAMES DIGGS, a Negro, murdered a cattle-drover, J. C, Gould, in the
northern part of the Indian territory near the Kansas line, August 4,
1873. His conviction was the result of the skill and determination of
Deputy Marshal James Wilkinson, who took up the case after it had
long been abandoned. Gould, with Diggs and another employee,
Hiram Mann, a white man, had camped for the night in a deserted
cabin. Early the next morning Diggs aroused the people living hi
the vicinity, reporting that during the night two men had ridden
into camp, shot his companions, and chased him into the woods,
where he concealed himself under a log until they departed. A posse
went to the scene and found Gould and Mann lying side by side in
a pool of blood. Gould was dead; Mann was still alive but uncon-
scious, and a doctor was summoned. A search of the premises re-
vealed no evidence of horses having been near, and there was no log
where Diggs claimed he had taken cover. Diggs was questioned, and
$27 in greenbacks were found concealed in the lining of his coat.

214 APPENDIX A

Further evidence showed that Gould had been recently paid this
amount in corresponding bills. Diggs was taken to Fort Smith, but
in that year Parker was not judge for the Western District of
Arkansas. No witnesses appeared against the Negro, and he was
released. Wilkinson heard about the case soon after being sworn
in under Judge Parker. He located Diggs and placed him under arrest.
Meanwhile, the witnesses had scattered to far points of the country.
He located some of them in Kansas and Missouri, one in Ohio; and
Hiram Mann, who had recovered from his wounds, had migrated to
Michigan. All were brought to Fort Smith and testified at the trial,
and the jury promptly entered a verdict of guilty.

JOHN POSTOAK was convicted on August 16, 1878, for the murder of
John Ingley and his wife in the Creek Nation.

August 29, 1879 William Elliott

Dr. Henri Stewart

WILLIAM ELLIOTT, alias Colorado Bill, already wanted in four states
for murder, killed his fifth victim, David J. "Cooke" Brown, in the
Choctaw Nation, February 23, 1879. Following his conviction on
May 28, 1879, the Elevator, listing the charges hanging over him
elsewhere, commented: "He will hardly be wanted by any other
state after they get through with him here."

DR. HENRI STEWART, a white man, thirty-five years old, had studied
medicine at Harvard and Yale and served as a ship's physician in
Cuba, South America, and California. In 1877 he ran away from his
wife and four children in Ohio and came to the Indian country. He
joined Sam Bass and for a time was a member of his notorious gang
of Texas train-robbers. In May, 1879, he killed J. B. Jones in an
attempted holdup of the Missouri-Kansas-Texas train at Caddo,
Choctaw Nation. He was apprehended in Missouri.

September 9, 1881 George W. Padgett
William Brown
Patrick McGowan
Amos Manley
Abler Manley

Appendix A 213

GEORGE W. PADGETT, a Texas cattle thief, murdered W. H. Stephens
on the North Fork of the Canadian River, July 26, 1881, when the
latter questioned him about some cattle "bearing a certain Texas
brand" that he was driving to the Kansas market.

WILLIAM BROWN killed Ralph Tate near White Bead Hill, Chicka-
saw Nation, August 19, 1880, through mistaken identity as he waited
in ambush for a man named Moore, who had given him a severe
beating in a quarrel over a horse race. Brown was captured in Texas.

PATRICK McGowAN ambushed Sam Latta, July 13, 1880, following
an argument over twenty acres of land leased him by Latta in the
Chickasaw Nation.

AMOS and ABLER MANLEY'S crime was one of the most brutal and
unprovoked slayings perpetrated in the Indian country. Ellis McVay,
a white fanner, lived with his wife and two children on the line
between the Creek and Choctaw Nations. He had a hired man named
William Burnett. On the bitter cold night of December 3, 1880, the
Man ley brothers stopped at his home after the family had retired and
asked to come inside and warm. McVay accommodated them, stirring
up the fire. They then told McVay they were on their way to take
jobs in the Choctaw Nation and asked if they might spend the night.
McVay consented. Burnett occupied a cot in one corner of the room,
the only other bed available, so a pallet was provided for the visitors
by the fire. McVay then returned to bed. About 3:00 A.M. the Mau-
leys arose. Both drew pistols and approached McVay's bed. Amos
fired once, striking him in the head; the younger brother, Abler,
fired two bullets into his body. Burnett, awakened by the shots,
leaped from his cot, and they began firing at him. As he went down
he grappled one of them. The other seized a double-bitted ax from
beside the fireplace and struck the hired man in the neck, cutting a
severe gash. Another blow chopped off Burnett's right hand and
sent it flying under the table. While Burnett lay on the floor 7 bleeding
from his wounds, he was struck several additional blows about the
back and legs and left for dead. The pair then turned on Mrs.
McVay, but a dog started barking, and they went outside, thinking
someone was approaching the house. Mrs. McVay grabbed her chil-
dren, slipped through the back door, and fled half a mile through
the frozen night, in nightgown and barefoot, to a neighbor's home.

216 APPENDIX A

A doctor was summoned for Burnett, and a posse took the trail of
the Manleys. They were apprehended the next day, and Burnett lived
to appear in court. The stump of his right arm, the severed hand, and
the bloody ax, sent them to the gallows.

June 30, 1882 Edward Fulsom

EDWAKD FULSOM had served one term in the penitentiary, and in
February, 1881, fled to the Indian country to avoid prosecution on
a charge of horse stealing. He beat William Massingill to death with
a pistol in a saloon brawl on the Arkansas-Indian Territory line,
after the latter had been wounded and lay on the floor, unarmed and
helpless. Fulsom was such a slightly built man that his fall on the
gallows did not break his neck. His pulse beat for an hour and three
minutes before jail physicians pronounced him dead.

April 13, 1883 Robert Massey

ROBERT MASSEY died on the gallows for slaying his business as-
sociate, Edmond Clark, hi camp on the South Canadian River, two
hundred miles west of Fort Smith, the night of December 1, 1881.
In the summer of this year the two men had driven a herd of cattle
from Dodge City, Kansas, to the Dakota Territory. They had
completed the sale and were en route to their homes in Texas when
Massey shot Clark in the back of the head as he sat at the fire. He
dumped the body in a hole near the camp site and burned his clothing
and saddle. He then took the proceeds of the cattle sale, and Clark's
horse and six-shooter, and continued to his home in Grayson County,
where he was arrested the following April, still in possession of the
weapon. He had traded the horse to his brother-in-law.

June 29, 1883 William Finch
Martin Joseph
Tualisto

WILLIAM FINCH, a mulatto, thirty years old, shot and killed two
military guards who were returning him to Fort Sill from Decatur,
Texas, where he had fled after stealing a horse from an Indian named

Appendix A 217

Quinette. He was rear rested in Texas by deputy marshals and taken
to Fort Smith.

MARTIN JOSEPH. See Chapter IV of text.

TUALISTO, a Creek Indian, needed money to attend a green-corn
dance. On July 6, 1881 ; he ambushed and robbed Emanuel Cochran,
a white man traveling through the Choctaw Nation. Deputy Marshal
Beck was assigned to the case and gathered enough evidence to
obtain a warrant for the renegade's arrest. Meanwhile, Tualisto had
been convicted of larceny in the tribal court and sentenced to the
whipping post. Beck was on hand for the event. The moment
Tualisto had received his punishment, he took him into custody. On
the scaffold, the Indian confessed that he had murdered Cochran
and bragged that he had killed others. He called the crowd's atten-
tion to four buttons sewed on the crown of his hat, then stated that
each button represented a man he had slain.

July 11, 18S4 Thomas Thompson
John Davis
Jack Woman Killer

THOMAS THOMPSON, a whisky smuggler, was hanged for killing his
partner, James O'Holeran, in the Chickasaw Nation, September 20,
1883, and tossing his body into a well.

On June 27, 1883, JOHN DAVIS murdered and robbed William
Bullock, who had driven a herd of cattle through the Indian country
to Colorado, and buried his body beside the trail.

Nathaniel Hyatt, a white man, farmed in the Cherokee Nation. On
May 7, 1883, he left his home on a trip into Arkansas. Two days
later his body was found at the roadside pierced by bullets, with the
features mutiliated beyond recognition. He had been robbed. JACK
WOMAN KILLER was arrested and convicted for this crime.

April 17, 1885 William Phillips

WILLIAM PHILLIPS died on the gallows for murdering his father-in-
law as the latter slept in bed at his home in the Cherokee Nation
in the summer of 1884.

218 APPENDIX A

June 26, 1885 James Arcene

WilUam Parchmeal

William Feigel, a Swede, was murdered and robbed near Fort Gibson,
November 25, 1872. The perpetrators of this crime might have gone
unpunished but for the diligent efforts of Deputy Marshal Andrews,
who rode that part of the Indian country. After thirteen years, he
was able to piece together enough facts to secure warrants for JAMES
ARCENE and WILLIAM PARCHMEAL. The pair confessed in their cells
at Fort Smith and were convicted in the February term of court,
1885.

April 23, 1886 James Wasson
Joseph Jackson

JAMES WASSON was a double murderer. He had aided in the slaying
of Henry Martin in 1872, but was not captured until he killed
Almarine Watkins in 1884 and a large reward was offered for his
capture.

JOSEPH JACKSON, a Negro, was hanged for the brutal murder of his
wife, Mary Jackson, at Oak Lodge, Choctaw Nation, March 9, 1885.

July 23, 1886 Calvin James
Lincoln Sprole

CALVIN JAMES, a Negro, was leader of a gang of whisky runners. On
August 1, 1885, he, Tony Love, Henry Robey, and Albert Kemp
went to Texas and each purchased four gallons of whisky. On their
return trip, while riding through a secluded section of the Chickasaw
Nation, James shot Love in the head to get the whisky he carried.
Robey and Kemp were riding some distance ahead. James carried
Love's body two hundred yards off the road and concealed it in
the brush, then unsaddled his victim's horse and turned it loose.
He then told Kemp and Robey he would kill them if they ever
mentioned the incident. However, when Love turned up missing, it
was ascertained he was last seen with these men, and all three were
arrested. Kemp and Robey confessed the whole affair and appeared
against James as government witnesses.

Appendix A 219

LINCOLN SPROLE, a young white man, murdered elderly Ben Clark
and his eighteen-year-old son Alex, May 30, 1885, in Paul's Valley,
Chickasaw Nation. Sprole and his victims were renters on the Sam
Paul farm, and prior to the double slaying, he and Clark had fallen
out over the watering of stock at a well on the premises. On the date
of the killing, Clark and his son went to White Bead Hill to do
some trading, and on their return trip Sprole, concealing himself in a
thicket at the side of the road, fired upon them. Clark fell from the
wagon seat, shot in the chest. The horses began to run and the boy
leaped from the wagon. Another shot from Sprole's Winchester broke
his leg at the knee, and as he lay at the roadside, begging for his
life, Sprole advanced, raised his weapon again to his face, and shot
the helpless, unarmed youth through the right breast and collar bone.
Clark died within six hours; his son lived only seventeen days. Sprole
left the country, but Deputy Marshal John Williams tracked him
down and hauled him to Fort Smith. The Elevator of August 9, 1886,
speaking of the evidence produced at the trial, commented: "It is only
to be regretted that he has not two necks to break instead of one."

August 6, 1886 Kit Ross

KIT Ross was part Cherokee, twenty-five years old. In 1883, while
on a drunken spree, he rode his horse into the home of Jonathan
Davis while the latter's wife was seriously ill, and was roughly
ejected. He and Davis met frequently afterwards and seemed ap-
parently on good terms, but "revenge lurked hi the heart of the
treacherous Ross." On December 20, 1885, while Davis was in a
store at Choteau, Ross entered in an intoxicated condition. As
Davis was leaving, he met Ross at the door and remarked about the
weather: "Kit, I believe we will have some snow." Ross replied:
"Yes, I believe we will," and as Davis passed outside, stepped
behind him and fired two shots into his back. As Ross was being led
from the courtroom after the jury had pronounced him guilty, he
remarked: "Well, they done it to me."

January 14, 1887 James Lamb
Albert O'Dett

220 APPENDIX A

John T. Echols
John Stephens

In the autumn of 1885, Edward Pollard and George Brassfield, who
farmed a lease near Lebanon, Chickasaw Nation, hired two young
men, JAMES LAMB and ALBERT O'DELL, to help in the harvest.
Within a short while Pollard's wife was indulging in "passionate rela-
tionships" with Lamb, and Mrs. Brassfield had taken a fancy to
O'Dell. Their open conduct became neighborhood scandal. Brassfield
finally left his wife, and O'Dell took over. Pollard wasn't so easily
dissuaded. He continued "in possession of his chattels, if not his wife"
until the night of December 26, when Lamb and O'Dell ambushed
him as he returned from a trip to Lebanon and concealed his body
on the trail. A few days later a preacher was summoned to the
Pollard home to marry Lamb and Mrs. Pollard, who explained that
her husband had deserted her and "would not be back." The preacher
refused to perform such a ceremony, and the following day the
quartet left the community. Pollard's body was found two months
later, and the case assigned to Deputy Marshal Mershon. He as-
sembled the facts stated above, arrested the two men and the women
at Buck Horn Creek, fifty miles away, and lodged them in jail at
Fort Smith. Mrs. Pollard made bond and went to the home of rela-
tives in Missouri, where she gave birth to a child of which Lamb
was the father. Mrs. Brassfield gave birth to twins the "fruits of her
debauchery with O'Dell" which died a few hours after they were
born. Lamb and O'Dell, who had stuck together through crime and
courtship, now employed separate attorneys. At their trial they
prosecuted one another, while the district attorney, using the women
as witnesses, prosecuted both.

JOHN T. ECHOLS, a white man, wounded John Pattenridge, February
16, 1886, at White Bead Hill, Chickasaw Nation, in a quarrel over
a cattle deal hi which Echols felt that he had been cheated; and
while his unarmed victim lay on the ground, begging him piteously
not to shoot again, fired five more bullets into his body. He then
stole Pattenridge's horse and rode away.

On May 28, 1886, JOHN STEPHENS, a mulatto, borrowed a horse
from an Indian on the Delaware reservation and rode in the night

Appendix A 221

to the home of Mrs. Annie Kerr, who had appeared as a witness
against him in a larceny case. He found Mrs. Kerr and her sixteen-
year-old son asleep on a pallet near the door and chopped them to
death with an ax. He then rode to the home of Dr. Pyle, also a wit-
ness against him, struck Pyle and his wife in the head with an ax,
and brutally beat their small child. Dr. Pyle died six days later, but
his wife survived to appear in Judge Parker's court and exhibit the
ghastly wounds in the back of her head from which fourteen pieces
of bone had been removed.

April 8, 1887 Patrick McCarty

PATRICK MCCARTY originally had been scheduled to hang on January
14, 1887, with the quartet of Lamb, O'Dell, Echols, and Stephens,
but was granted a reprieve until his case could be examined by the
President. He was convicted for slaying Thomas Mahoney and his
brother in the Cherokee Nation. The Mahoneys farmed near Fort
Scott, Kansas. During the slack winter months they had come to
the Indian Territory to work with a grading crew on the Atlantic
and Pacific railroad, which was under construction, and brought with
them two good teams and wagons loaded with plows, shovels,
scrapers, and camping equipment. They cleared $200 during the
winter, and in the spring, about crop-planting time, began their
return trip to Fort Scott, accompanied by McCarty with whom they
had made an acquaintance. Several weeks later their bodies were
found in a coal bank between Vinita and Coffeyville, and their teams,
wagons, and other equipment in possession of a man in Fayetteville,
Arkansas, who testified he purchased them from McCarty. McCarty
was arrested at Springfield, Missouri, having a high time on the
profits and still in possession of a watch taken from Thomas Ma-
honey. In his confession he related how, on the night of February 17,
1886, after a hard day's journey, the brothers had made camp seven
miles south of Coffeyville. He had insisted that they get some rest
and allow him to perform the camp chores. When the brothers were
asleep he had drawn his revolver and crept to the wagon. He shot
one between the eyes; the blood gushing out soaked the feather
mattress on which they slept. His second bullet missed, and as the
other brother aroused, he had brained him with an ax. He had then

222 APPENDIX A

buried the bodies and burned the bed and all their clothing to prevent
identification. When his attorneys appealed to the President, Judge
Parker submitted a lengthy, vigorous statement of facts taken from
the testimony at the trial, and the President refused to intercede.

October 7, 1887 Seaborn Kalijah
Silas Hampton

SEABORN KALIJAH was arrested January 17, 1887, by Deputy Mar-
shal Phillips for selling whisky in the Creek Nation, but before he
could transfer the prisoner to Fort Smith, the deputy was sum-
moned to Eufaula on another investigation. He left Kalijah in camp
in custody of three possemen, Mark Kuykendall, Henry Smith, and
William Kelly. When he returned the next morning, he found the
three possemen dead. The prisoner had escaped. Smith and Kuyken-
dall had been chopped to death with an ax while they slept and
their bodies dragged into the fire and burned from the waists down.
Kelly's body lay a dozen yards away, shot and horribly mutilated.
Phillips followed Kalijah's trail to the home of relatives and re-
arrested him.

SILAS HAMPTON, an eighteen-year-old fullblood Cherokee, killed
Abner N. Lloyd, a white farmer living near Tishomingo, December
9, 1886, and robbed his body of $7.50 and a pocketknife. The money
he invested in a bright-colored silk handkerchief and some trinkets,
which led to his arrest. When told he had murdered a white man,
Hampton requested of the marshals: "Don't take me to Fort Smith;
kill me right now I "

April 27, 1888 George Moss
Owen Hill
Jackson Crow

On November 26, 1886, GEORGE Moss, Sandy Smith, Factor Jones,
and Dick Butler conspired to steal beef on the range. They entered
into an agreement that if any person caught them in the act they
would murder whoever it might be. Accordingly they proceeded to
the Red River bottoms in the Choctaw Nation and shot a steer be-
longing to a prominent farmer, George Taff. Taff appeared on the

Appendix A 22$

scene shortly after the shot was fired, and Moss promptly killed
him. During the shooting, Moss's horse got away and Moss was un-
able to catch him. Discovery of his horse and the dead body of
Taff led to the arrest of all four conspirators. Moss and Smith were
taken to Fort Smith by deputy marshals, but Jones and Butler,
being citizens of the Choctaw Nation, were released, the Fort Smith
court having no jurisdiction. The infuriated citizens, knowing the
murderers would probably never be punished in the Choctaw courts,
took them to the spot where Taff was murdered, and after hearing
their confessions, completely riddled them with bullets, leaving their
bodies where they fell on the prairie. Sandy Smith died in jail before
the case came to trial, leaving Moss alone to pay the penalty for their
crime by due course of law.

OWEN HILL and his wife resided near Gibson Station, Cherokee Na-
tion. They could not get along together, so his wife went to live
with her mother. On the night of June 25, 1887, Hill appeared at the
home of his mother-in-law with a shotgun. After beating her over
the head with the weapon until he supposed her dead, he threw the
gun aside and sprang at his wife with a razor. She tried to escape,
but he caught her in the yard and cut her throat, nearly severing the
head from the body. He was arrested in Kansas City after writing
to a friend inquiring if his wife had died of her wounds.

JACKSON CROW assassinated Charles Wilson, a prominent merchant
in the Choctaw Nation, August 7, 1884, and while his victim lay
dead on the trail near Kully Chaha, bashed his head with the stock
of his Winchester. He remained at large until December, 1885, when
Deputy Marshal Charles BarnhiU and posse trailed him to a house
in the Poteau Mountains. Crow refused to surrender until the posse
set fire to the building. When taken into custody, he still had Wil-
son's pistol in his possession.

July 6, 1888 Gus Bogles

Gtrs BOGLES hanged for the slaying of J. D. Morgan at Blue Tank,
a railroad station near McAlester. Morgan's body was discovered the
morning of June 28, 1887, near the section house, stripped of coat,
hat, shoes, and trousers. Bogles was identified as a man put off the

224 APPENDIX A

train by the conductor for not having a ticket at the time and place
of the murder. When arrested at Denison, Texas, Bogles confessed
he had slain Morgan by buckling a strap around his neck and beat-
ing him over the head with a pistol. In his testimony at the trial he
denied all knowledge of the murder, saying the officers had frightened
him into making the confession; that he knew nothing of the crime,
had never been in the vicinity, and had never seen Morgan in his
life. In pronouncing his sentence, Judge Parker said:

"In your efforts to escape the consequences [of murder], you have
added to your crime that of perjury. This, of course, is not to be
wondered at. ... It is expecting too much of wicked and depraved
human nature for us to look for truth from one who has stained his
hands with innocent human blood. . . . Sometimes such persons have
succeeded, by their falsehoods, in deceiving juries and in cheating
justice. You have not succeeded, and you stand before the bar of this
court to have announced to you the sentence which the law attaches
shall follow. . . ."

Bogles was described as one of the most difficult prisoners ever in
the Fort Smith jail. Twice he tried to escape, once by seizing the
pistol of a guard who walked too close to his cell, and again by in-
ducing a trusty to smuggle him out in an empty barrel that had been
brought into the jail filled with sawdust for filling the spittoons.
For several nights preceding his execution, after being locked in his
cell, he would whoop and yell like a lunatic for hours, for no other
purpose than to annoy the other inmates.

January 25, 1889 Richard Smith

RICHARD SMITH killed Thomas Pringle on March 28, 1888, as the
latter walked in the woods with his sweetheart near Wheelock,
Choctaw Nation. The ground was soft, and the tracks showed the
murderer wore a pair of boots with soles driven full of large round-
headed tacks, twenty-one tacks in the right foot and fourteen in the
other. Smith tried to hide his trail by wading through a lake, and
when arrested the next day was wearing boots corresponding with
the tracks except that the heels were missing and the tacks had been
removed. But a boy on the premises told deputy marshals that
Smith had come home with his gun on the day of the slaying, wet to

Appendix A 225

the waist and complaining that his boots hurt his feet; that after-
wards he had knocked off the heels and pulled the tacks from the
soles. The heels were found where he had thrown them in the
bushes, the tacks were never located, but the holes were still in the
shoe soles, plainly visible.

April 19, 1889 James Mills
Malachi Allen

On December 15, 1887, JAMES MILLS and Tom Robin, Negroes,
murdered John Windham in the Seminole Nation, shooting him in
the back, After he had fallen, they shot him twice in the mouth and
body. A group of irate citizens attempted to arrest the killers. In
the fight, Robin was wounded and captured and Mills escaped. Robin
was taken to Fort Smith, where he died of his wounds. Mills was ar-
rested the following January. They refused to give the motive for
their crime.

MALACHI ALLEN hanged for the murder of Shadrach Peters and Cy
Love in the Chickasaw Nation, July 15, 1888, in a quarrel over a
saddle. In a vicious gun fight with Deputy Marshal McAlester and
posse, he was wounded and captured. His gun arm was so badly
shattered it had to be amputated before he was taken to Fort Smith.

August 30, 1889 William Walker
Jack Spaniard

WILLIAM WALKER killed Calvin Church at Durant, Choctaw Nation,
December 12, 1888, for ten dollars and two quarts of whisky.

JACK SPANIARD'S proper name was Sevier, the name of his grand-
father on his father's side. His father and mother died when he was
a child, and while living on Spaniard Creek between Muskogee and
Webbers Falls, he was given the name of Spaniard. He was a half-
blood Cherokee, twenty-eight years old, of fine physique and hand-
some appearance. He was convicted April 12, 1889, for the murder
of Deputy Marshal William Erwin (see Chapter IV). The evidence
against him was purely circumstantial but so conclusive that the
jury was out only one hour. At the time of his hanging, Fort Smith

226 APPENDIX A

newspapers described him as "a man of desperate and reckless char-
acter, who held human life at a very low estimate."

January 16, 1890 Harris Austin
John Billee
Thomas Willis
Jefferson Jones
Sam Coin
Jimmon Burris

HARRIS AUSTIN shot Thomas Elliott on May 25, 1883, at Tish-
omingo, Chickasaw Nation, because the latter stole his whisky.
As his victim lay wounded, Austin fired a second shot into his body,
then walked close to the prostrate form and fired a third time, hold-
ing the muzzle of his pistol so close to his forehead that the powder
burned his face. Austin fled to the hills, and despite the efforts of
United States marshals remained at large until he was shot and cap-
tured in a gun battle with Deputy Marshal Carr and posse in April,
1889,

JOHN BILLEE and THOMAS WILLIS hanged for the robbery and slay-
ing of W. P. Williams, April 12, 1888, and burying his body in a
shallow ravine in the Kiamichi Mountains.

On March 12, 1889, JEFFERSON JONES murdered sixty-year-old
Henry Wilson, who was traveling through the Winding Stair Moun-
tains, Choctaw Nation, robbed the body of $12, and tossed it into
a creek, where it was discovered a week later, badly decomposed.

SAM COIN and JIMMON BURRIS killed Houston Joyce of Franklin,
Texas, another traveler in the Indian Territory, as Joyce left their
home November 17, 1888, after inadvertently displaying a large roll
of money while paying for a meal.

January 30, 1890 George Toiler

GEORGE TOBLER quarreled with Irvin Richmond over a woman, with
whom both were infatuated, at a dance in Cache Bottom, Choctaw
Nation, the night of April 30, 1889. Later in the evening, when
"the revelry was at its height," Tobler placed the muzzle of his

Appendix A 227

pistol to a crack in the wall, and as Richmond danced past less than
two feet away fired a bullet into his body.

July 9, 1890 John Stansberry

JOHN STANSBERRY went to the gallows for murdering his wife and
infant child in 1 889 to be free of his marital ties in order to marry a
Creek squaw with whom he had become infatuated.

June 30, 1891 Bood Crumpton

BOOD CRUMPTON was a beardless youth of nineteen. In a drunken
and evil mood he shot his companion, Sam Morgan, in the back and
dumped his body in a hole near the Pawnee Indian Agency. His was
the only execution ordered by Judge Parker for the year 1891, but
it had a potent influence on those who witnessed it. As Crumpton
stood on the scaffold before the crowd, he said: "To all you who are
present, especially you young men the next time you are about to
take a drink of whisky, look closely into the bottom of the glass and
see if you cannot observe in there a hangman's noose. There is where
I first saw the one which now breaks my neck."

April 27, 1892Shepard Busby See Chapter IV of text.

June 28, 1892 John Thornton

JOHN THORNTON had committed one of the most revolting crimes
recorded on the docket of the Fort Smith court. He was a profligate,
a drunkard. Repeatedly he had violated his own daughter, and after
she married to escape his horrible abuse, he went to her house in the
absence of her husband and emptied a pistol into her head and body.
Thornton was a heavily built man. His stay in jail added to his
weight. The muscles of his neck were small and flabby and in no
condition for the task placed upon them. When he dropped at the
end of the rope, blood spurted and the flesh ripped apart. The crowd
standing inside the enclosure shuddered with horror as his body
dangled before them, swaying slightly, only the tendons of the neck
preventing it falling to the ground.

228 APPENDIX A

September 24, 1894 Johnny Pointer

JOHNNY POINTER was born at Eureka Springs, Arkansas. His par-
ents were religious, well-to-do, and highly respected people, but ap-
parently had never heard of the old adage, "Spare the rod and spoil
the child." What Johnny wanted he got, and if they expressed any
opposition, Johnny still had his way. At the age of twelve he set fire
to a neighbor boy. He was reprimanded. A year later he stabbed a
playmate with a knife and was fined $50 in a Carroll County court.
His father paid the fine, and little Johnny boasted: "My old man
will never let me go to jail."

Within a month he picked a quarrel with another boy and beat
him senseless with a rock. True to little Johnny's prediction, father
made a settlement with the parents of the injured child, and Johnny
was neither arrested nor punished. By the time he was seventeen,
he was so completely out of hand at home that his parents decided
what was needed was a change of scene. They sent him to live with
relatives in Missouri.

Johnny had grown up to be a bully and a braggart. There were
no younger boys here to mistreat. Things were too peaceful, so he
decided to go home. He stole a fine riding mare from a man near
Springfield and rode back to Eureka Springs. He told his father he
had purchased a small pony at an auction and in turn traded it to
another man for the mare, agreeing to give him $13 to boot; that
this man was in Eureka Springs at the time, and if his father would
give him the money he could close the deal.

Foolish father patted his son on the shoulder, told him what a
shrewd trader he was, and handed over the amount requested. There
being no deal to close, Johnny spent papa's money for a good time
about town, and within a few days the owner of the mare and a
Missouri sheriff called at the Pointer home with a warrant for
Johnny's arrest. Still believing his son's story, certain that the man
to whom Johnny had traded his pony was the real thief, father hired
a lawyer, put up the price of the mare, and did everything possible
to reach a compromise with the man from Missouri.

The owner of the animal could not be swayed, and the sheriff
sent to Missouri for requisition papers. Meanwhile father got Johnny

Appendix A 229

released on bail of $1000, furnished him expense money to leave
the country, and put him on a train for Texas.

No more was heard of the youth until he turned up in jail at
Decatur, due to another misunderstanding over a horse. He wrote
home for money to make his bond, the request was expedited by his
father, and soon Johnny was on his way back to Eureka Springs,
traveling with two men named Ed Vandever and William Bolding,

Vandever and Bolding were also from Arkansas. They had driven
to Texas on a trading expedition, and with a large roll of money and
a good team and wagon to show for their trip, they left Decatur for
their homes. On the night of December 25, 1891, they camped near
the farm of W. G. Baird at Wilburton, Choctaw Nation, where they
purchased hay for their team. Pointer was still with them. The fol-
lowing morning their bodies were found in a creek near the camp,
and Pointer, with the team and wagon and money, was missing. His
description was furnished deputy marshals, who arrested him at Mc-
Alester attempting to dispose of the outfit.

Throughout his trial, conviction, and sentence, Johnny was cocky
and calm and made light of his weeping parents. He even asked
Judge Parker for permission to set the hour of his departure from
earth. Judge Parker consented, and Johnny set half past three in the
afternoon. When the time approached, he weakened. He asked for a
fifteen-minute delay, which was granted. At 3:45 he was brought
from the jail into the gallows enclosure. He began to tremble. On
the scaffold he turned white. His knees buckled so that he was
scarcely able to stand. He died as he had lived a coward.

November 2, 1894 Lewis Holder

LEWIS HOLDER murdered and robbed his partner, George Bickford,
in the San Bois Mountains, Choctaw Nation, on December 28, 1891,
and dumped his shotgun-riddled body into a gorge. Two exciting
incidents occurred in connection with this case. The first was at the
conclusion of the trial. When Judge Parker pronounced that he "be
hanged by your neck until dead," his words died away and the
courtroom became as quiet as a tomb. Apparently it was more than
the condemned man could bear. His face paled and a tremor shook

230 APPENDIX A

his whole body. Suddenly he let out a scream that was heard in the
street beyond the walls below, and fell forward on the courtroom
floor. Everyone believed the man had cheated the gallows. The room
was filled with confusion, and it was with great difficulty that Judge
Parker was able to restore order. When the marshals bent over
Holder, he was still breathing. They carried him outside into the
air, and he recovered. From that moment he was a broken man. Day
after day he begged the guards passing his cell not to hang him.
When this gained him no consideration, he declared that if he was
executed he would return to the spirit and haunt them and Judge
Parker and everyone connected with the court. Even this threat
failed to stay the hand of justice, and he went to his death as sched-
uled. On a night in December, a month later, Jailer George Lawson
and a half-dozen fellow-officers were sitting in the jail office when
an unearthly sound floated from the inky darkness that enveloped
the gallows startled them to silence. The tones were so weird and
expressive of poignant grief that it was several minutes before the
officers ventured into the jail yard. The great death trap stood iso-
lated from the other buildings three hundred feet away. The moan-
ing continued. "No doubt about it," gasped one of the deputies, "it's
Lewis Holder's ghost 1" Lawson's call for volunteers to investigate
met no response, so he went alone. On the floor of the scaffold he
found a man in a highly intoxicated condition, and this was the
source of the uncanny sounds.

March 17, 1896Crawjord Goldsby
alias Cherokee Bill

See Chapter VIII.

April 30, 1896 Webber Isaacs
George Pearce
John Pearce

WEBBER ISAACS ambushed and robbed a peddler, Mike Gushing,
smashed his head to a jelly, saturated his clothing with coal oil, and
set him on fire. Cushing's identity was established from a tuft of
gray whiskers under the chin that had not been consumed by the
flames and from bills and letters bearing the name of his concern in

Appendix A 231

Leavenworth, Kansas, which had been lost from his clothing as his
body was dragged into the woods.

The PEARCE brothers murdered William Vandever, their traveling
companion, and robbed him of his horses, mules, and a wagon. The
crime occurred on November 21, 1894, in the Cherokee Nation.

July 1, 1896Rujus Buck
Lucky Davis
Lewis Davis
Sam Sampson
Maoma July

Members of the infamous Buck gang, hanged as a quintet for the
rape of Rosetta Hassan in the Creek Nation. See Chapter X.

July 30, 1896 George Wilson

(James Casharego)

Last man executed on the Fort Smith gallows. See Chapter XII.

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APPENDIX E

The Famous Grand Jury Charge

On August 5, 1895, a grand jury was called to examine the case
of Crawford Goldsby alias Cherokee Bill, charged with the murder
of Guard Lawrence Keating. There were, at the time, numerous
other cases and such a large variety of crimes to be investigated
that the task facing this particular jury was the hardest in the
history of the court. To this jury Judge Parker delivered his most
notable charge. It is filled with points of law and was considered by
the Fort Smith bar, and by himself, the masterpiece of his life in
this class of charges.

Gentlemen of the Grand Jury, before proceeding with your de-
liberations, I desire to address to you a few remarks by way of a
reminder of what your duties are under the law. That reminder has
already been given to you in the shape of your oath, which is an
epitome of the great duties that devolve upon you as the accusing
power of the government, in this district, for this term of court, but
it is sometimes considered to be more impressive, and we are more
apt to understand our duties, when we can converse for a brief

245

246 APPENDIX E

time about them, and when we understand them properly we are
apt to perform them better than we would if we did not fully com-
prehend the great responsibilities resting upon us.

I never open a term of court that I am not impressed again and
again with the greatness of this government of ours. Its greatness
consists of the fact that all of its power is in the hands of those
who are to be benefitted or injured by the execution or the neglect
to execute that great power in the hands of the people themselves.
There is not a step taken in the execution of these laws enacted by
this government that is not taken by the people. In the first place,
the laws are made by their agents. They are made for their protec-
tion, to secure their rights, and when they do not bring them that
protection, and do not secure to them these rights, they are bad
laws, they are vicious laws. Every good citizen should never let his
partisan opinions or his political views, no matter what party he
belongs to, run so high as to forget the great truth of the principle
as to what his duty may be as to the government of his country,
and its laws. Now, what I have said is based upon the fact that laws
are worthless to protect the rights of the people unless they are ex-
ecuted. Society cannot live, it cannot exist, it degenerates into an-
archy, into riot, into bloodshed, and into that condition which brings
about destruction of all order and of all peace, unless these rules of
government called the law are executed promptly and vigorously
for the protection of every right that belongs to the citizen. The
laws of the United States cannot be executed in this district until you
as a grand jury first act in the premises. You occupy such a posi-
tion as that the government through its officer comes to you and
says: "I present this man, or that, or the other, and charge him with
a crime." The government is the charging power. The government
brings the case before you. Before any action can be taken to ascer-
tain finally the guilt or innocence of a man you must first accuse him
in a lawful way by an indictment. That is to say, you must pass
upon his case, and see to it by the light of the evidence that the
government offers to you, because the government says to you, "I
charge this man with crime and here is the evidence supporting that
charge." That evidence is presented to you through the district at-
torney, or some one of the assistants, and you pass upon the question
primarily as to whether he shall be called upon in a court of justice

Appendix E 247

to have the question determined as to whether he is guilty or inno-
cent.

We have but to cite this fact to show the great responsibilities
that rest upon you, to show you the importance of the position you
assume or that is cast upon you, when you are chosen from the body
of the people and brought into this court, placed under the sanction
of an oath to perform this great duty, to perform it thoroughly, to
perform it well, to perform it so that the rights of the citizen which
are protected by these laws are really made secure by the proper
enforcement of them. That is why you are brought here. It is a prin-
ciple of law, arising under the Constitution of the United States,
that if a man is the accused of a capital, or otherwise infamous of-
fense, he cannot be tried for it, no matter how guilty he may be,
no matter how injurious to the community it may be not to try
him, unless he is first indicted by a grand jury. That is a matter
that is enacted by the law as a safeguard to the liberty of the citi-
zen who may be improperly accused, who might be wrongfully ac-
cused, who might be accused in an ex parte way, but the presumption
is that if the grand jury investigates his case, and they find facts
showing, first, that a crime has been committed, and secondly, that
the man accused committed it, then there exists a condition of
things that demands the intervention of a petit jury to pass upon
that case, and he is accordingly indicted. The grand jury system,
in my judgment, is one of the guarantees thrown around the liberty
of the citizen, in this country. At the same time it is a method by
which it is made easier to determine the guilt or innocence of the
party accused when he is put upon trial in a court before a petit
jury, because the evidence is sifted out, the facts in some degree are
ascertained, and it becomes easier to find out whether he is guilty
or innocent than if an indictment was not had, but he was simply
tried upon information. When there is an investigation of that kind,
the facts are better developed than they would necessarily be if
there was no investigation.

The duties of this grand jury are much more onerous than those
of a Federal grand jury usually are. Most Federal courts only deal
with cases directly affecting their government, but here we have
nearly all the Indian Territory attached to this jurisdiction, and the
laws of the United States are extended over it to protect that coun-

248 APPENDIX E

try which for years has been cursed with criminal refugees. They
committed some crime back at their homes and fled from justice,
taking refuge in the land of the Indians, where, by their acts and
their influence, they have made a hotbed of crime. The government,
in its treaties with the Indians, obligated itself to keep all these
characters out, to remove them as fast as they moved in, but that
promise has never been kept except insofar as the court having
jurisdiction over that country has brought these criminals out to
punish them. For years this court stood alone in the work but of late
years the jurisdiction has been divided and now other courts are
exercising the same wholesome influence.

Taken as a whole, the juries have done their duties fairly, honestly
and impartially, though some grave mistakes have been made and
the cause of justice scandalized. By finding a verdict of guilty where
guilt exists, you are doing your duty, and also are teaching one of
the greatest object lessons. Judging from the vast volume of crime,
which has almost submerged us in a sea of blood, we have gone
astray, and are almost at the mercy of the man of crime. The great-
est question of the hour is, can we properly enforce the law? Crime
is gaining strength, especially those crimes affecting human life. This
is not caused entirely by the failure of the people to enforce the
laws. There are other causes and sources. One of our leading news-
papers, in commenting upon the trial of Dr. Buchanan, printed an
editorial under the heading of "Laxity of Law." The article went on to
say that technical pleas of cunning lawyers often defeat justice; that
the appellate courts consider alleged flaws and encourage a system
of practice of the law entirely in favor of the criminal and against
the cause of right; that they never look to the merits of the case, but
seem to be cooperating with the unscrupulous attorneys whose ob-
ject is to circumvent the law. This is as true as the words of Holy
Writ. However honest and fair the trial court may be, it is impos-
sible to bring assassins to merited punishment when appellate courts
allow the cases to linger along, and give these murderers an oppor-
tunity to take other innocent life in cold blood.

Now, you will understand that you organize as an accusing body.
You are organized now as such body, with a foreman to preside over
your deliberations with a foreman as your presiding officer, and
who presides over you during these deliberations as he would over

Appendix E 249

any other deliberative body. He puts all questions to a vote that
come before you, he determines whether the proposition accusing
the man of crime has received the requisite number of votes to au-
thorize the findings of a true bill against a party. He may determine
this by counting the votes. He may determine it by calling the roll
when there is any question of doubt about it. He has the power,
under the law, to swear witnesses, to administer an oath to a witness
that is binding upon the witness as though it was administered by
the judge of this court, or by the clerk of the court. He leads in the
examination of the witnesses, though any gentleman on the jury has
a right to ask a witness questions, with his consent. You will bear in
mind that the law prescribes the number of votes that shall be cast
in favor of indicting a man before you are authorized to return a
true bill against him. The law says that at least twelve of your num-
ber shall concur in voting the man guilty of the crime charged be-
fore an indictment can be returned. You will understand that it
takes sixteen of your number to constitute a working quorum. You
cannot transact any business unless there are sixteen members of the
grand jury present. Now, in this connection, I remark that it is highly
important that the whole body should be promptly present at every
meeting after recess or adjournment, because you are all interested,
of course, in the investigation of these cases. You all want to under-
stand them, and you all want to perform your duties, and prompt
attendance is the way to accomplish that, and if this rule is ob-
served strictly it becomes a fact that you are all present, and there
could never be any question raised about the quorum.

You will bear in mind that there is a veil of secrecy thrown
around your proceedings. There was a much greater necessity for
that in the beginning of the grand jury system than there is now,
though at times now the rule is necessary in order to secure the in-
dependence of the grand jury in their action. The language of your
oath is that you are to pass upon these cases without fear, favor or
affection; you are not to be controlled by any outside opinion; in
fact, you have no right to talk to anybody outside the grand jury
room about cases, unless it may be the judge of the court or the
district attorney, or some one of the assistants of the district at-
torney. The matter of passing upon the guilt or innocence of a man
is to be determined by you just as it is to be determined by the

250 APPENDIX E

petit jury, by the law bearing upon the question of which you will
be advised by the district attorney or some one of his assistants,
and by the evidence that is offered upon that case, and by these,
and these alone, are you to be governed. Therefore, you are not to
make known what proceedings are transpiring in the grand jury room
to anybody on the outside; you are not to inform anyone what you
are doing there, whether you have indicted anybody for a crime, or
whether anybody has been charged, before you, with a crime. Nor
are you permitted to make known how any member of your body
votes upon a proposition, or what opinions he expresses upon ques-
tions that may be pending before you. Nor are you permitted to
make known the testimony of any witness before you, unless you
are called upon in a court of justice to make known that evidence
and the character of it. You may be called upon, for instance, in a
case of perjury, where a party is accused of perjury before you, or
in a case where it becomes necessary to impeach the testimony of a
witness by proving contradictory statements made before you dif-
ferent from those made in court, and in such cases you may be
called upon legally as a witness to disclose the testimony of the wit-
ness, but outside of this exception you are to keep that matter a
profound secret so that witnesses may act independently. It some-
times is the case very often is the case that witnesses are afraid
to go before the grand jury and tell the truth if that evidence is to
go out before the party is arrested, or the party or his friends might
be informed of it, and the witness might, perhaps, be assassinated,
or interfered with, or run out of the country. You see there is wisdom
in all these rules. Now, of course, this rule I have given you, re-
quiring you to keep these matters a profound secret, is a rule, when
properly observed, which secures the administration of justice in
the proper way. At the same time it may be taken advantage of un-
duly not apt to be, here, because we have safeguards against that,
but still you are to see to it that men do not come into the grand
jury room and take advantage of this rule of secrecy by falsely ac-
cusing other men of crime. We have rules, I say, that prevent that
as far as possible. For instance, a party who desires to make com-
plaint, if the case has not been examined by a commissioner, and he
has not already given his evidence, is required to go to the district
attorney and make his complaint to him, and then the district at-

Appendix E 251

torney passes Ms judgment upon the question as to whether the man
is telling the truth or not. If, in the judgment of the district at-
torney, the man is telling the truth, he is sent to the grand jury.
If he is not, if it is a fictitious charge, if it is something that is in-
vented for the purpose of venting spleen or malice or hatred or ill-
will against an innocent citizen, the district attorney is apt to de-
tect that, and, consequently, you are not liable to be imposed upon.
You are not troubled much by false witnesses, who seek the privacy
of your chamber, and who become false accusers. Sometimes men
go there who may be mistaken as to whether the act is a crime or
not. They may be mistaken as to the identity of the man committing
that crime, and they may be mistaken honestly, but it does not often
happen. It sometimes occurs, though, that witnesses appear before
the grand jury for the purpose of committing downright and delib-
erate perjury. The perjury is more apt to be committed where the
motive is greater. The motive upon the part of the government does
not exist to have a man falsely convicted. There is nobody who repre-
sents the government who wants a man falsely accused or falsely
convicted. It generally occurs that the perjury is upon the other side,
where the motive is strongest, where a man is in danger of convic-
tion, where he is likely to pay the forfeit with his life or lose his
liberty. The inducement is greater there to invoke this terrible
agency of crime, called perjury, which is so often resorted to in
this age, than it is upon the part of the government, whose duty it
is to see to it that the innocent are protected as well as the guilty
punished. No one connected with the court, or with the government,
has any interest in that direction, much less have they any desire
of that kind; but they have a desire to uncover perjury, to uncover
falsehood, and bring to justice false accusers or false witnesses,
whenever they can be found, whether they are upon the side of the
government or against it.

Now, there is another remark I desire to address to you in regard
to the character of evidence you are required to act upon in the
grand jury room. You cannot indict a man upon affidavits, or upon
ex parte statements that come to you second hand. The general rule
is that the witness whose testimony is relied upon must be pro-
duced before you. He is to be sworn by the foreman, and you pro-
ceed then to examine him. You judge of his credibility and you use

252 APPENDIX E

exactly the same means that a petit jury may use for that purpose.
You look at the very way he gives his evidence, the very consistency,
and reasonableness and probability of the story as he gives it, his
very manner of testifying. All of these things are passed upon by
you. That is the benefit of having the living witness before you. You
can see the manner of evidence he is giving sometimes from the way
he gives it. There are exceptions, however, to this rule from neces-
sity, and in the interest of public justice. If a witness has once ap-
peared before a man accused of crime in an examining court, for
example, and has there given his evidence, and he subsequently dies,
that evidence from necessity, and in order that justice may not be
defeated, may be relied upon by you, and it may be produced before
you properly, more properly by the officer who heard the evidence.
He can go before you, or anybody else who heard it may go before
you and reproduce it and tell you what that evidence was and you
may act upon it just the same as though that witness had stood
before you and given that testimony; or, it may be shown from the
notes of the officer who takes it down, the commissioner. That is one
exception to the rule. The other is, where a witness is permanently
sick, and he has given his evidence before an examining court, and
his sickness is of that permanent nature that it is hardly probable or
reasonable to believe that he will ever recover; his testimony then,
I say, may be reproduced in the way I have indicated the same as
though he were dead. In that sort of case, before the evidence can be
used, it ought to be shown that the sickness of the witness is not
merely temporary but is of that permanent and serious character as
to disable the party for all time so he could not be able to come and
that in all reason and probability he would die before he could be
produced before you. Another exception to the rule is where a witness
is improperly used by a party accused of crime, or somebody in his
interest, where he is induced to leave the district by corrupt means
used upon him in the shape of bribery, or by threats or violence, or
intimidation, he is induced to absent himself from the district, or to
so hide himself away as that the officer cannot serve a subpoena upon
him. In a case of that kind, if he has once given his evidence before
the commissioner, that testimony may be reproduced before you, and
you may act upon it just the same as though the witness were dead.
Now, these are exceptions to the rule, but with these exceptions you

Appendix E 253

are required to have the presence of the witness before you, and you
are to so examine them as to satisfy yourself, first, of their telling the
truth, and then, of course, you are to pass upon the proving power of
the story given by them as witnesses to see whether the testimony
of any one witness alone, or in conjunction with other testimony, is
sufficient to lead you to the belief, first, that a crime has been com-
mitted, and, secondly, that the party or parties accused, is the one,
or are the ones, who committed it. If the two propositions are then
established, your duty calls upon you to say so by presenting your
conclusion from that evidence in the character of the charge drawn up
by the district attorney's office, and presented by you in the shape of
an indictment, signed by Mr. Brooks, as your foreman, and returned
into court by you as a body headed by your foreman. That completes
your duty as to that case. That case is then in a condition where the
court can dispose of it in the way prescribed by law.

Now, it is your duty to pass upon all violations of the laws of the
United States where those violations are alleged to have occurred in
this district. These violations may be classified. There are violations
of laws which affect the operations of the Treasury Department of the
United States, for instance. If a party counterfeits the money of the
United States, or such counterfeit is found in the possession of a
party with guilty knowledge and for fraudulent purpose, that be-
comes a crime against the operation of the government. This is a mat-
ter that you are to look to carefully, because the circulating money
of the country which passes into the pockets of the people, and which
they receive in exchange for the products of their toil, is required
by the law to be kept entirely pure. You cannot keep it pure unless
this law against counterfeiting, or passing counterfeit money, and
having it in possession for fraudulent purposes, is rigidly enforced.
There arc always enough bad men who are disposed to violate the
law if they can make gain of it, if they can benefit themselves by it,
and the only tiling that restrains them is the fear of punishment; it
is the fear of capture, the certainty of conviction, and the certainty
of punishment following that conviction that restrains them* The
Treasury Department is, therefore, oae of the departments of the gov-
ernment that must be protected by you, and by the petit jury, in all
cases where you and it are called upon to enforce the law.

Then there is the Postal Department, one of the great agencies of

254 APPENDIX E

the government, which is of the highest character because of its great
importance to the people of the United States everywhere, so im-
portant and so much of a necessity, that we would rather do without
one of our meals than to miss our mail one time. We become so anx-
ious about it and so used to it, that it is one of those agencies we
depend upon to such an extent that we cannot do without it. And if
you wanted to produce a revolution in this country, if you wanted to
upset things generally, I think you could do it quicker by suspending
the mails of the United States for six months or a year than by any
other means. This agency is a matter of great benefit to the people.
They are enabled by it to transmit valuables and letters to one an-
other; to transmit letters containing matters that are private be-
tween relatives and friends; to transmit packages and things of that
character. And they now transmit them as a rule by depositing them
in the office with the belief in their minds that they will as certainly
arrive at their destination as that they deposit them. Somebody has
said, somewhere, that the postal laws of the government, from the
way they are executed, make this mail matter just as secure as though
each letter was surrounded by a batallion of cavalry to convey it to
its destination. And that is true. You take that great system and
consider the millions and hundreds of millions in money that is trans-
mitted through it by the people of the United States from one to
another, and the millions of letters and the thousands and hundreds
of thousands of papers and magazines that pass throughout the coun-
try by the means of this great agency, and all with entire safety, and
there is the greatest lesson that teaches us what the security of the
law means; it teaches us how secure all the rights of men can be made
if we look to the proper enforcement of the law. What do I mean
by that? This branch of the government is better protected by the
agency of the Postal Department, intended to discover, arrest and
bring to justice all violators of this law than any other department
in it. It is a fact that may be asserted with truth with reference
to this department that a robber or an embezzler, or a man who would
open a letter wrongfully, or a man who would commit the larceny of
a letter or of its contents, has not any possibility of escape, as a rule.
Its agents follow him to the uttermost ends of the earth; they arrest
him and he is brought to justice before the juries of the country
through the means of this great agency of the government. The con-

Appendix E 255

sequence is that it has this security. How much better would the
condition of the country be, how much happier would the people
be, if we could only assert this fact with reference to that which is
the most sacred thing possessed by any citizen his life? If the same
measure of security, if the same degree of protection, if the same en-
forcement of the law to protect human life, existed in this country
as it does with reference to this department of the government, this
tide of bloodshed that is now deluging this land would, in a measure,
disappear and human life would have at least the highest possible
degree of security thrown around it that could be thrown around it
by the power of the law. I say there is an object lesson to be found
in the way that the law is enforced as affecting the Postal Department
of the government. I ask you to continue to teach that object lesson
in this jurisdiction by indicting every man who violates the postal
laws in any way. There is another branch of the Postal Department I
desire to call your attention to especially. While it is important to
protect the property of the citizen, his money in the letter, or his
secret in the letter transmitted to his friend, or the transmission of
these confidential family matters that exist, and with which the public
have no business, it is equally important to protect the morals of the
young of this country against the vicious and vile acts of men who
would use the mails as a conduit for corruption, for villainy and vice
and crime of that character. The law therefore says that the mails can-
not be used for the transmission of anything that vitiates the morals,
or has that tendency. And this is one of the best laws ever enacted by
the Congress of the United States in the interest of good morals. All
those who violate this law in the interest of licentiousness, vice and
crime are guilty and should be punished. He who makes a threat in
an open manner upon a postal card so that it would have a deleterious
influence upon the party to whom it is sent, is subject to punishment.
The mails paid for by the people are not to be used as a conduit for
crime, for the perpetration of crimes, or for the production of bad
morals, vice and licentiousness. And I ask you especially if any cases
of that kind are discovered by you to indict the parties who may be
guilty of having used the mails in this unlawful way.

There is another department of the government, of which I re-
mind you especially, and it is connected with, and grows out of,
this department I have called your attention to already, the Treasury

256 APPENDIX E

Department. This treasury has to be supplied with funds, with
money, and it is necessary that the agencies used to do that should
be protected by the courts and juries of the country. There is one
system of collecting revenue, growing out of a direct tax on products
produced in the country known as liquors, such as whisky, brandy,
distilled or fermented liquors, etc., and the law is of that character
that unless a man complies with these provisions he is guilty of
a crime. If he runs an illicit distillery without complying with the
many regulations prescribed by the statutes, he is guilty of crime;
he is running what is called a "moonshine" or illicit distillery, and
he is subject to punishment. If he carries on the business of a whole-
sale liquor dealer, without having first paid the tax required by law,
he is guilty of crime. If he sells malt or fermented liquors, without
having paid the tax, he is guilty of crime. Or if he carries on a retail
liquor business, without first having paid the tax, he is guilty of
crime. It is highly important that this law should be enforced, for
the reason if it is not enforced the government will get but little
revenue from that source, and if the government is to recognize this
traffic at all, the law should be so administered as to fall equally
upon all, and that the man who honestly pays the tax and complies
with all the requirements of the law should not be put to a dis-
advantage, compared with the man who disregards the law and
pays no tax. If you do not enforce it, even against the smallest
violators, the consequence is that, in a small way, it is evaded, and
the traffic is wholly carried on in that way. For instance, you take
the business of carrying on a retail liquor dealer's traffic: the law
says that if a man sells or offers for sale any foreign or domestic
spirits in quantities less than five wine gallons at one time, he is
carrying on the business of a retail liquor dealer. He is required by
the law to pay twenty-five dollars tax per year, and if he does
not pay that tax, the act of entering the business becomes a crime.
The law is very comprehensive. It says: "Whoever sells or offers
for sale this liquor in any quantity." A man can go out here with
a pint cup and he can sell, or offer to sell, a drink of whisky, and if
he does he is carrying on the business of a retail liquor dealer. It
looks like a trivial thing upon the face of it, but when we look
at the consequences arising from it if the law is not enforced, it
becomes a serious matter. If the business could be carried on in that

Appendix E-~ 257

way, without paying any tax, of course that is the way it would be
carried on. Nobody would put himself in a position where he could
be caught up readily by the officers, but he would peddle it around
and sell it to single individuals in small quantities. The law is made
comprehensive for the purpose of saying to all men: "If you sell it
or offer it for sale in any quantity less than five wine gallons, you
must pay the tax. If you sell it in quantities more than that, you
are a wholesale dealer, and you must pay the tax."

Now, these are the principal departments of the government that
may be affected by these violations of the law, that may come
before you, and I ask you to see to it that every department of the
government that is effected by these violations of the law is sus-
tained. You are emphatically and truly upon the side of the govern-
ment when you come into a court of justice, not to use that govern-
ment for the purpose of wrongdoing, but to see that these laws are
sustained and the same thing is true with reference to the petit jury
to sec to it that no guilty man escapes and that no innocent man
is wrongfully accused or punished.

Now, there are other matters that will come before you because
of the peculiar jurisdiction of this court. What I have heretofore
stated has been stated with reference, more especially, to the estab-
lished jurisdiction of Federal courts, but in this jurisdiction up to
this time, and as it will remain for some time in the future, there
is an increased jurisdiction belonging to this tribunal; and this
being so, there is cast upon you additional responsibilities. For in-
stance, there comes before you for investigation cases growing out
of the taking of human life, or of attempts upon human life in the
shape of assaults with intent to kill, and cases growing out of acts
affecting the property rights of citizens. And there are cases to be
brought before you which grow out of violations of what is called
the intercourse law -the law that regulates the intercourse between
the people of the United States and the Indian tribes or nations that
are rightfully in the Indian country. This docs not exist as a part
of the jurisdiction of the United States courts generally. Now, in
coming to that part of the jurisdiction belonging to us because of
this traffic that is carried on in liquor in the Indian country, we
approach a subject that is of the gravest importance to the welfare
and peace of that country; and while it is impossible to make that

258 APPENDIX E

country a prohibitory one, we can largely suppress, if we do our
duty, this traffic in liquors there, or the taking of them into that
country. Of late years there has been much legislation upon that
subject. The law as it existed originally is found in that section of
the statute which has stood as the law of that country for a great
many years. That section is 2139 of the Revised Statutes of the
United States, which provided:

No ardent spirits shall be introduced under any pretense into the
Indian country. Every person who sells, exchanges, gives, barters, or
disposes of any spirituous liquors or wine, to any Indian under the
charge of any Indian superintendent or agent, or introduces or attempts
to introduce any spirituous liquor or wine into the Indian country,
shall be punishable by imprisonment for not more than two years,
and a fine of not more than $300.

That is the law as it has stood ever since Indian reservations were
set apart by the laws of the United States. That act was repealed by
the act of July 23, 1892, upon the subject of the introduction of
liquors of an intoxicating nature. The very gravamen of these statutes
is that liquor is prohibited, and liquor of any kind that will intoxicate,
or that is spirituous in its nature, is not to be introduced. By the
act of July 23, 1892, it was provided:

Every person who sells, exchanges, gives, barters, or disposes of any
ardent spirits, ale, beer, wine, or intoxicating liquors of any kind to
any Indian under charge of any Indian superintendent or agent, or
introduces or attempts to introduce any ardent spirits, ale, beer, wine,
or intoxicating liquor of any kind into the Indian country, shall be
punished by imprisonment for not more than two years, and by a fine
of not more than $300 for each offense.

That stood as the law repealing the old statute until the last
legislation upon the subject, which was upon the first of March,
1895, by an act entitled "an act to provide for the appointment of
additional judges of the United States court in the Indian Territory/'
and for other purposes. I note these different stages of legislation
upon this subject because I am coming to the proposition as to
whether or not this court has jurisdiction of violations of this law
at this time. Section 8 of the act of March 1, 1895, provides:

Appendix E 259

That any person, whether an Indian or otherwise, who shall, in said
Territory, manufacture, sell, give away, or in any manner or by any
means, furnish to anyone, either for himself or for another, any vinous
malt or fermented liquors, or any other intoxicating drinks of any
kind whatsoever, whether medicated or not, or who shall carry, or
in any manner have carried, into said Territory, any liquors or drinks,
or who shall be interested in such manufacture, sale, giving away,
furnishing to anyone or carrying into said Territory, any of such
liquors or drinks shall, upon conviction thereof, be punished by a fine
not exceeding five hundred dollars and by imprisonment for not less
than one month nor more than five years.

This section of the act of March 1, 189S ; as this court construes
it, as far as such law has reference to acts done in the Indian
country, works a repeal of the law passed upon the 23rd of July,
1892. It takes up the whole subject. It legislates fully upon it. It
changes the penalty. It embraces, as I have said, the whole subject
embraced in the other statutes, and more, too. It is more compre-
hensive, because it makes it an offense to manufacture in the
Territory, or to sell, or to give away to anyone, or in any manner or
by any means furnish to anyone, whether he be an Indian or not,
either for himself or for another, any vinous, malt or fermented
liquors, or any other intoxicating drinks of any kind whatsoever,
whether medicated or not, and it prohibits the carrying in, or in
any manner having carried into said Territory, any such liquors
or drinks. It prohibits parties from being interested in such manu-
facture and sale or giving away or carrying into the Territory. As
I say, it embraces the whole subject embraced in the other statutes,
comprehends even more, and it changes the penalty. It is, therefore,
new legislation, inconsistent with the other statutes, and they both
cannot stand together. That being true, by the rules of law declaring
that when one statute repeals an older one, as asserted by the follow-
ing authorities, the statute of March 1, 1895, manifestly being in-
tended as a substitute for the act of July 23, 1892, repeals the same.
In King vs. Cornell, 106 United States, 396, the Supreme Court said:

While repeals by implication are not favored, it is well settled that
where two acts are not in all respects repugnant, if the later act covers
the whole subject of the earlier, and embraces new provisions which
plainly show it is intended as a substitute for the first, it will operate

260 APPENDIX E

as a repeal. United States v. Tynen, 11 Wall, 88; Redrock vs. Henry,
106 U.S., 596; Wood vs. U.S., 16 Peters, 342, and Murdock vs. City
of Mephis, 12 Wall, 590, fully sustain the principle asserted in King
vs. Cornell.

Under the subsequent provisions of the statute denning the juris-
diction of the courts in the Indian Territory, which say that the
United States courts in the Indian Territory shall have exclusive
original jurisdiction of all offenses committed in said Territory, of
which the United States court in the Indian Territory now has
jurisdiction, if they had jurisdiction of this offense, as prescribed by
this statute, they would have, under this legislation, exclusive juris-
diction of it, and this court would have nothing to do with it; but
they could not have had jurisdiction of this offense as created by
this statute it being a new offense and punished in a different way
they could not have had jurisdiction of this offense at the time the
act passed, when there was no act in existence providing for the
offense as it is prescribed here, and the manner of committing it, and
the punishment as prescribed by this statute. Therefore, they did
not have jurisdiction of this offense as prescribed by Section 8, and
consequently they do not have jurisdiction now, but this court has
jurisdiction of it, and will continue to have jurisdiction under the
provisions of this statute until the first day of September, 1896.
Therefore, I say to you, that as to all offenses committed, which are
prescribed as offenses by that section, growing out of the manufacture
in the Territory, or of the selling, the giving away, or in any manner
or by any means furnishing to anyone, either for himself or another,
any vinous, malt or fermented liquors, or any other intoxicating
drinks of any kind whatsoever, whether medicated or not, or who
shall carry or have carried into such Territory any such liquors or
drinks, if any of these things are proven before you, your duty is
to indict the party. There has never been a Congress yet, except one,
where there was an exception made, and that was by a legislative
trick, where any of the provisions in any of these laws that I have
read were not regarded of the highest importance. They were enacted,
in the first place, upon the petition of Indian settlers of that country
who looked upon the traffic of intoxicating liquors as a method
adopted by vicious, vile and evil-disposed white men to destroy

Appendix E- 261

their people and take advantage of their condition and their tribal
weakness. And this destruction has been brought about in many
instances until whole nations have been wiped from the face of the
earth by means of liquor carried to them by white men who were
desirous of using them in that way in order that they might get some
advantage of them. It is your duty, and I know you will perform it,
so see to it, as the people of this goodly state have seen to it for
over fifty years, that this provision of the law is enforced.

You will understand that upon the organization of this Indian
country, the power to uphold the laws of the United States over
that country was put into the hands of the good people of the State
of Arkansas, and it has remained there for fifty years and over
ever since 1834. The law at first provided that the court of the
United States for the Territory of Arkansas, sitting at Little Rock,
was to enforce the laws of the United States over the Indian country.
Subsequently, after the territory had been admitted to statehood,
when there was a division of the State into two districts and a court
was established at Van Buren, the same law prevailed, and the same
people of this State were the jurors in whose hands was placed by
that law the power to protect these people of that nation, to use all
the power that belonged to them to protect them in all the rights
which they possessed.

Again, in 1871, when the court was removed from Van Buren
to this place, the same power of protecting them remained in the
hands of the people of Arkansas. And I want to say that for twenty
years, just about now, since the opening of the first court here, as
a rule these people have performed that duty faithfully and well.
Why a distrust has been entertained of them, or why the jurisdiction
was changed, I am not prepared to say, nor is it material that any-
thing should be said upon the subject. AH I have to say upon that
subject is that the jurisdiction yet remains, and still is in your
hands, and as long as it does remain I ask you to vindicate the
character established by the people of this State for enforcing the
law in that country. Much has been said in that regard. Much has
been falsely assorted in regard to it. I can say, in vindication of
these jurors and of these people, that the law has been at least as
well enforced by them us affecting that country and the rights of its
people, as it is enforced in any State of the Union, anywhere. I can

262 APPENDIX E

say more than that. I can say even more than that. I can say that
there has not been a band of robbers or highwaymen or assassins
in the Indian country that has not been, by the officers of this court
and by the juries passing upon their cases and finding them guilty,
if they were guilty, more promptly broken up, destroyed and wiped
out, than has been the case in the Indian country for twenty years
past. This is the truth. More cases of criminals committing high
crimes have been tried, a higher percentage of arrests have been
made, more convictions have been obtained, although justice has
often failed from corrupt influences, as it does everywhere, from
improper influences exerted, not always felt, known and understood
by the jury when the mistake is made; but, I say, notwithstanding
this there has, altogether, been a greater percentage of convictions,
more men brought to justice, the law better vindicated, better up-
held, and better sustained, and the rights of the people better pro-
tected by the people who come to this court as jurors than in any
court in the country, I care not whether it is in the old States or in the
new States, and when the history of this court comes to be written ;
when the passions of the hour, prompted by cupidity, avarice and
self-interest, and desire for gain shall have all disappeared, those who
have been connected with it in upholding the majesty, power and
dignity of the law of the United States shall not suffer from that
true history. I ask you to keep it up. I ask you to vindicate it still,
because when you are doing that you are seeking to protect the
people under the protecting agency of the law of the United States,
and, as I have already said to you, the only way to protect men in
their rights is for the juries of the land to come into the courts with
a desire to fearlessly enforce the law, no matter whom it affects.
The truth about it is that we are in a peculiar condition in this
nation today in such a condition that, in my judgment, the greatest
problem that has ever presented itself to the minds of the people is
confronting us now, and that is, whether crime shall be triumphant;
whether the man of blood, the man of crime, the man of vicious
disposition, the man who destroys human life, who tramples upon
the rights of others, shall be the ruler, or the law of the land shall
exert its peaceful sway, and by its protecting power, all men made
secure under their own vine and their own fig tree, and under their
own rooftree. It is a great problem. It is one that is exciting the

Appendix E 263

interest of all good men in the land. You find it in the law journals
of the country; you find it in the lectures of judges; you find it as
delivered by professors in colleges who are discovering this terrible
condition where this wave of blood is about to deluge us and over-
power us. Now, what is the reason for that? The reason for it in
our jurisdiction is, because we have had to contend with almost the
whole earth the criminals, at least, of all the country. It has been
the custom for all these years that when a man committed a crime
in an older state, or in any state, and he could get away from the
officers, he would run into the Indian country. He became a refugee
criminal. And while there are many good men, hundreds and thou-
sands of good white men in that country who are properly there,
who are there by invitation; there are hundreds and thousands of
others who are stained with crime, whose tendencies are corrupted
by the crimes that they have committed elsewhere, and it is with
this corrupt element assembled from all the States of this Union
that this court, and the juries of this court, have had to contend
with. That is why the volume has been great. That is why it has
been said: "You convict so many men there; you must be cruel, you
must be harsh, you must be tyrannical." In fact, that reputation of
this court has gone abroad, it has reached the whole land, and it
started right here. Often, lawyers who would lose cases, whose
client's neck was placed in the halter by the evidence and the law
of the case, to vindicate themselves with their clients, would go off
and damn the court, and talk about its cruelty, and its inhumanity
and wickedness in that direction. There is where it started from;
there is the origin of it. Many have acted outrageously in that
particular, disgracefully, unprofessionally, and in every other way
that ought to be reprimanded. That is the truth about it. There is
where it started. But let the record of the court speak for itself and
it will vindicate itself. The juries in this court, under the guidance
of the court, as a rule have endeavored to uphold the law, to vin-
dicate it. Now, then, it is not only your duty to continue to do this
for the sake of giving protection of these people under the law, but
you, as well as the petit jury, are, for the time being, educators. You
are to teach the people everywhere a wholesome lesson, and that is
that they must rely upon the law and upon its enforcement, for their
protection, and not upon mob violence, not upon that spirit that

264 APPENDIX E

causes people to degenerate into a mob and become criminals them-
selves in an effort to seek protection. There is a prevalence of this
crime everywhere, that men, instead of arresting criminals and bring-
ing them before juries of the country, take them out and put them
to death without judge or jury, and without investigating their cases,
and not being competent to properly investigate them. Every day
they do that. Sometimes you will find that good men are involved in
things of that kind. It is because they have lost confidence in courts
and juries. You say to a community that as sure as a crime is
committed, so sure will the party who has committed it be brought
to merited justice, as the law prescribed that punishment, and you
won't find any mobs in that community. There are no mobs in the
counties of this state which are in this jurisdiction. Have you
noticed that? Why is that? It may not be that this court is entitled
to the credit for it, but it is a fact that three or four times a year
sixty or seventy-five men come up here, assist in the enforcement of
the law and go home as educators among their people, and who
are in favor of depending upon the law for the protection of every
right, and the consequence is that mob violence does not exist in
these counties. Everything is peaceable, it is quiet. A man commits
a crime and the people seek to arrest him, as they have a right to
do, and they bring him into the courts that he may be punished.
And it is a rare exception that mob violence exists in the Indian
country. There are cases of it (we have tried in this court three
cases of mob violence since I have been here), but there is not the
amount of it that you would naturally expect from the criminal
condition of that country. And it is because the people have a
belief that we will at least endeavor to enforce the law. Now, when
we are teaching the lesson to all people that we must rely upon
the law of this country to secure peace and good order and the
consequent happiness and prosperity of the people, we are teaching
the greatest lesson that can be taught; and we do that every day
and every hour when we are in the courts of the country seeking
to honestly, impartially and dispassionately uphold and enforce the
law. It may not be inappropriate to give you the opinions of
eminent jurists, of eminent men, showing our condition at this time
in this country, and outlining to us what the duties of every good
citizen are when they go into the courts of the country, and even

Appendix E 265

when they are outside of the courts. Now, reading from the lecture
of Judge Elliot Anthony, President of the Illinois State Bar Associa-
tion, at its eighteenth annual meeting, held January 24, 1895, at
Springfield, Illinois, in which he said, in relation to criminal law:

There is no subject at the present time before the American people of
such transcendent importance as that of the administration of the
criminal law.

Much criticism has been indulged in regarding our jury system.
The jury of the vicinage is, today, the most complete humbug. It
was all right when it was originated five hundred years ago, but the
jury system has been reversed since. Then the jury tried the case
on their own knowledge of it; now that knowledge of it would dis-
qualify you. The majority of criminals do not want a trial by a
jury of the vicinage. They committed crimes at their former homes,
and fled because they did not have a good opinion of that law
system. All they are entitled to is a fair trial by an impartial jury,
and that I am sure they will get here. The truth about it is, for
some reason or another, and the reason to my mind is manifest,
that the administration of the law affecting the civil rights of the
citizen, his property rights growing out of the controversies between
man and man, has become to be regarded of much more importance
than the enforcement of the law which protects the life of the
citizen. Did you ever notice that? The criminal law and its adminis-
tration has rather fallen into disgrace. That is especially true of
the large cities of the country. Now, is it not more important to
protect a man's life than it is his property? A man may lose every
cent he has on earth and he can earn more; if he cannot, he can
depend upon his neighbor, or upon charity. He still has his life. But
if his life is destroyed, if the assassin fires into his house and
takes his life, robs his family and himself of that which belongs to
him, is not that a greater deprivation than to deprive him of his
horse, or his cow, or even of all the property which he possesses?
Yet I say it is true that the administration of the criminal law has
to some extent fallen into disgrace. I apprehend it is because of
the corrupt methods resorted to to defeat its administration, and
for this reason the people have become so that they look upon it
with a kind of contempt. This eminent jurist, continuing, says:

266 APPENDIX E

It is as a general rule the least studied and the least understood by
our judges of any other branch of the law. Many, up to the time of
their accession to the bench, never tried a criminal case in a court of
record, and consequently they have no appreciation whatever of the
fine points of the law, or what is required by the Supreme Court to
sustain a verdict in a case wherein it has once been obtained, and what
is worse, they do not study to master the subject. Our methods of
criminal procedure are vicious, and our criminal practice still worse.
The rights of the defendant are regarded as supreme, while those of
the public are almost entirely disregarded and ignored. Those who are
charged with a criminal offense in Illinois are privileged characters and
dominate the state. They can, under our practice, generally choose
their own judges to try them, can fix the time and the season, can
select just about such a jury as they see fit, and can then prolong
the trial long enough to wear out the patience of the jury and drive
the judge to madness. Everything is, as a general thing, ruled against
the state, and if they cannot win in the court below, they can in the
Supreme Court.

The history of crime is interwoven to a greater or less extent with
every government, and will always be the most momentous question
with which the human race has to deal. It is the great problem of
civilization. He who has not thought upon it, has thought little about
humanity, and he who has not paid some attention to the criminal
kw of his country has not received a liberal education. It ought to
be administered with intelligence and enlightenment, but it is not. The
great effort seems to be to involve every investigation of crime in a
network of subtleties, artificial distinctions, and downright quibbles,
shut out all mcriminating evidence possible, then decide every case
on some technicality. There is dissatisfaction everywhere throughout
the country in regard to the methods adopted and the course pursued
by our courts in dealing with the violators of the law, and it is but
little wonder that the people in some of the oldest portions of the
Republic have at times become exasperated at the trifling and juggling
which are allowed, to the disgrace of civilization and the age in which
we live. Public rights seem to be held in much lower estimation than
private rights, and as between the living and the dead there is no
equality whatever.

In 1889, David Dudley Field said, in addressing the American
Bar Association, of which he was at that time the president:

Appendix E 267

We are a boastful people; we make no end of saying what great
things we have done and are doing; and yet behind these brilliant
shows, there stands a spectre of halting justice, such as is to be seen
in no other part of Christendom. So far as I am aware, there is no
other country calling itself civilized where it is so difficult to convict
and punish a criminal and where it takes so many years to get a final
decision between man and man. Truly may we say that justice passes
through the land on leaden sandals. The judges of the Supreme Court
have it in their power to establish by their decisions such a body of
criminal law as they see fit. They are hampered very little by statutes
and none whatever in regard to the determination of the guilt or
innocence of the accused. To build up and establish an arbitrary system
of rules and regulations is not the true object and aim of an enlightened
judiciary. What society demands and common sense demands, is this:
If a man is charged with a crime, then the question should be, is he
innocent or guilty; not did the judge err when he told the jury that
they must be "satisfied" of the guilt of the accused, instead of "believe"
him guilty, after a full consideration of all the evidence.

These are the expressive sentiments of men who are observing
men, who are good men, who are skilled in the laws of the country,
who are devoted to the true interests of the people everywhere in
this land. You cannot pick up the proceedings of a bar meeting, a
meeting of lawyers, nor can you scarcely find a lecture delivered on
that line in any institution of learning in the country, that does not
treat of this subject just as these eminent jurists have spoken of it.
It is the solemn truth, and it should be the duty of every good
citizen to see to it, in court and out, that no stone is left unturned
to undo this condition where the man of crime is in power, where
he is practically the ruler, where, if he has things in the shape of
money or social power and standing, he breaks through the meshes
of the law and makes his trial a mockery, a sham, a delusion, as is
manifested in every court in this land, time after time. Juries are
deceived; they are humbugged; they are imposed upon by the
tricks and artifices resorted to for the purpose of circumventing
justice, to cheat the law of its rights and its just demands. I ask
you to see to it that nothing of that kind will occur as far as you
are concerned, that no effort can be brought forth strong enough or
powerful enough to cause you to swerve from the Hne of duty which

268 APPENDIX E

is marked out for you by the law, and that is indicated for you
by the oath you have taken. See to it that every apparently guilty
man accused of crime is properly and promptly indicted so that
he may be put upon his trial, and it may be finally ascertained
whether he is guilty or innocent. It is the duty of all of us, as
citizens and as officers, to see that these great principles of law,
enacted for the preservation of the rights of each and every citizen,
whether it be the right to life, to liberty or property, shall in every
case be enforced, and in every case be vindicated. That no distinction
shall be made; or, if any distinction is made, make it against the
intelligent and powerful and those who ought to know better, rather
than against a man who has less reason and who is ignorant and
who may have become criminal from environment, from his sur-
roundings, as is often the case. If any distinction shall be made in
the way of punishment, in my judgment, it should be made in favor
of a man of that kind, and not in favor of the man with power
behind him, who breaks through all of these statutes that have been
enacted. And you are to especially see to it if he is a violator of the
law that he shall suffer punishment. It is abhorrent, it is disgusting
hi the extreme, to see this manifestation exhibited all over the land,
which has gone so far that there is a sickly sentimentality today in
favor of crime. The man who is a criminal is apparently a little
better than you who are honest and upright and who have not stained
your hands with the blood of a fellow man, or committed some other
high crime. There is that sickly sentimentality in favor of crime
upon the part of large numbers of people of this land. When you
come into this court as jurymen, if you ever had a lingering frag-
ment of such a sentiment, leave it outside the door, because you are
here panoplied with the power of your country to uphold the laws
of this land, to assist in seeing to it that justice is done in every
instance, no matter who may be charged, no matter who the criminal
may be, no matter who the innocent person may be. If a man is
innocent, protect him in his innocence; if he is guilty, see to it that
you assist in bringing him to merited punishment.

I want you to return indictments in every case wherein it is
probable that a murder has been committed, and first, I want you
to take up the case of Crawford Goldsby, alias Cherokee Bill, who
has been regularly convicted in this court of a foul murder, but

Appendix 269

upon which the sentence was set aside by his appeal to the Supreme
Court, which is now pending. He is accused of, while lawfully
committed to jail, having secured a pistol and killed Lawrence
Keating, one of the guards, as the result of a conspiracy on the
part of the prisoners to escape from custody. I want you to especially
give that case your attention, and if you think an indictment should
be returned, do so speedily, that he may be put on trial to answer
for his crime. There are a large number of murderers confined in the
jail, and in the interests of good government and humanity, you
should act promptly. Something must be done to hold these characters
in check.

It is not the severity of punishment but the certainty of it that
checks crime nowadays. The criminal always figures on the chance of
escape, and if you take that away entirely he stops being criminal.
The old adage of the law, "certainty of punishment brings security,"
is as true today as it ever was.

You will have someone from the district attorney's office, either
himself or one of his assistants, who will wait upon you, to give
you advice upon questions of law, because you have a right to have
information upon these matters to aid you in correctly and properly
performing your duties. The district attorney, or one of his assistants,
has a right to assist you in the examination of witnesses. Of course,
he knows more about these cases than you can possibly know. He
has become conversant with them and in that way he can render
you very material aid. I desire to say to you in this connection that
when you come to vote upon a proposition no one is permitted to
be with you when you vote except a member of your body. The
district attorney, or whichever one of his assistants may be wait-
ing upon you at that time, will retire at that time. Nobody will be
present with you. At all other times the representative of the district
attorney's office has a right to be present with you to assist you in
the manner I have indicated. There will be a bailiff at your door
for the purpose of calling witnesses, and make you as comfortable
as is possible in the room we furnish you.

Now, of course, it is your duty to proceed as fast as you can with
the business before you, yet at the same time not to proceed so
rapidly with it that you would overlook it, or that you would hastily
indict a man without fully understanding the case, or that you would

270 APPENDIX E

hastily ignore the charge against a man without understanding the
case. See that you get all the facts in every case. If the witnesses are
not all here, examine those who are here, and lay the case over until
the others can be produced. You are, of course, to take up the
cases first where parties desire to plead guilty before you. It is a
rule of law that if a man is brought before you and is informed of
the nature of the charge, and you are satisfied he understands its
nature, and the consequence of pleading guilty, and the party says,
when interrogated by the foreman or any other member of your
body, or the representative of the district attorney's office, that he
desires to plead guilty to the charge, that you can indict him upon
that plea alone. You have a right under the law to do that. I would
suggest that you take up these cases first, if there are any. I do
not know whether there are any or not. If there are, they will be
brought before you, and you will proceed with them as rapidly as
you can that they may appear before the court and receive their
sentences, whatever they may be. I might outline the order in which
you may conduct your business, but of course I do not undertake
to make it absolutely binding upon you, it being only directory,
because you have necessarily to change it owing to the varying cir-
cumstances that will transpire in the course of your deliberations, but
dispose first of cases where the parties are in jail that is, if you
can do so, if the witnesses are here. Next, dispose of cases where
parties are upon bond. Next, where parties are not in arrest. Now,
vary this order of business according to the circumstances. That is to
say, if witnesses are here in cases where parties are upon bond, and
are not here in cases where parties are in jail, take up the cases first
where parties are on bond. If there is a case where it is urgent to
get an indictment where the party has not been in arrest, proceed
with his case first that he may be arrested upon your indictment re-
turned in his case, if you return one. In other words, vary the order
of business according to the circumstances, so you will be enabled
to discharge the business before you as rapidly as possible.

You have a right to fix your own hours of meeting and adjourn-
ment. The court usually fixes its hour of meeting in the morning at
half past eight o'clock, a recess of an hour and a half at noon, and
adjourns at six o'clock in the evening. You may conform to that
time, or fix other hours, just as you see fit. I say to you, make use

Appendix E 271

of all the time you can in justice to your health to dispose of the
business before you as promptly as possible.

In conclusion I say to you that for the time being I put the
laws of the United States applicable to this jurisdiction in your
hands, and I ask you to sustain them upon your part by a fair,
just, impartial, and deliberate investigation in every case that comes
before you. If guilt is established, you cannot help it; you must
proceed to return your indictment. If guilt is not established, the
man who has been charged is vindicated and you ignore the bill
and so return it into court. When you proceed in this way, as you
have taken your oath to proceed, and as I know you will do, you
have performed your duty as good citizens and good jurors, and in
such a way as to become an educating influence in the country, and
at the same time to give fully the benefit of the law of the land
to those who are entitled to its power as a protecting agency.

Gentlemen, you will retire to your room and proceed with your
deliberations.

APPENDIX F

The Best Petit Jury Charge

On Wednesday afternoon, December 18, 1895, Judge Parker de-
livered the following charge to the petit jury that convicted George
Wilson (James Casharego), the last man to die on the Fort Smith
gallows. It was considered the masterpiece of all his numerous
charges to petit juries.

Gentlemen, a moment's reflection satisfies us that in every trial
of this character, there is involved one of the gravest propositions
upon which depends the social happiness of men, women and children
living in a state of civilized society and under a civilized government.
That proposition is whether the law of the land, that rule of action
which prescribes the conduct of men, when in the hands of the
intelligent jurymen of the country, affords a sufficient safeguard for
all the rights of the governed, and especially that highest of rights
known as belonging to man the right to life. I say, in every trial of
this kind, there is involved that proposition which determines the
weal or the woe of the people of this land; that proposition upon
which depends the enforcement of the law of the land, the mission

273

274 APPENDIX F

of which is the peace and social order and security of all innocent
and law-abiding people of the nation. This being a proposition of
this magnitude it can be seen at a glance that the responsibility
placed upon you by the law as a part of the good people of this
land, is the greatest responsibility which you are ever called upon to
assume as citizens. Nothing, I say, can ever be done by you, if you
perform your duties properly, which will so subserve the true interests
of the people of this land. Because of the magnitude of this responsi-
bility, because of the greatness of the issue, you are entitled to the
sympathy and honest support of all good men in the faithful dis-
charge of your duty according as you may see the right as God
gives you to see it. But notwithstanding you are entitled to this
sympathy, when you consider the attributes which you possess, the
duty is lightened. When we but reflect for a moment that you are
possessed with memories, with judgment, with reason, with the power
of observation, with the knowledge of right and wrong, with a high
sense of justice, a strong desire to see the right prevail, an inherent
love of equal and exact justice to all under all circumstances, a
reverence for the truth, and high regard for the law of the land
when you have all of these things as attributes of your nature, and
as a part of the qualifications which enable you to perform right-
fully, honestly and well this high duty cast upon you by the laws
of your land; I say the consideration of sympathy is lessened, be-
cause when you can apply, in the discharge of this great duty, these
great attributes of your nature, the duty is easier of solution, easier
of performance than it would be if you did not possess them. Be-
sides these attributes you have all Nature to aid you in your search
for the truth in this case. It has been truthfully said, it has been
well said, that Providence always throws a protecting shield around
the innocent, and it may be as truthfully said as a corollary to that
proposition, that Providence always points to the guilty as unerringly
as it protects the innocent. There may be exceptions, but Nature,
when properly studied by her subjects, never lies to them. They may
sometimes misinterpret her on abstract questions, it may take long
to understand her rightly, but when once properly understood the
Almighty never lies, and Nature is but His revealed will When He
has forged a chain of circumstances around an individual, He has

Appendix F275

done it for the wisest of purposes to protect human life, to teach
those who think they have a safeguard in the secrecy which is to
accompany the commission of a crime that detection is all around
them, and justice is certain to overtake them. For centuries, yes,
for ages, if geology be true, the lightnings had played in the heavens
and men were awed and terrified from their sight. Morse came with
the capacity to read their laws, and he chained them, and taught
them to carry our messages of affection, our messages of fortune
and misfortune, to friends thousands of miles away. When Nature
is correctly read she never deceives. For centuries the blood had gone
to the heart and returned again to the extremeties. For centuries
physicians had dissected the human frame and had failed to dis-
cover the great law of life, that the lungs received the oxygen from
the air we breathe and transmit it to the blood ; that the blood thus
provided with new life was sent out to feed the most remote organ,
it may be said by a mechanism more delicate than human genius
has ever been able to construct. Harvey came, read Nature's law
aright, made the discovery, and it was no longer a mystery. And
so it is with Nature everywhere. We look out of that window and
see the leaves falling from the trees. The unthinking say the frost
has come and killed the leaf, and so it falls. Pick it up, and examine
it. At the end of the stem you find a little cavity which covered a
bud that had been gradually growing and growing and crowding
the little leaf off until it fell, and next spring that little bud, which
will remain torpid through the cold winter, will expand with the
increased heat and grow into a green leaf. These are Nature's laws
which always tell the truth. These are Nature's laws which are a
part of the great system of Nature, designed by its God Nature's
laws to govern the workings of Nature in their innocence, and that
they may serve the purposes of man. Nature has a set of laws
which apply to the criminal acts of men as well as to their innocent
acts* And let us read what one of the greatest American thinkers
says upon that subject:

The league between virtue and Nature engages all things to assume
a hostile front to vice. The beautiful laws and substances of the world
prosecute and whip the criminal. He finds that things are arranged for

276 APPENDIX F

truth and benefit, and that there is no den in the wide world to hide
a rogue. Commit a crime, and the world is made of glass. Commit a
cri^ and it seems as if a coat of snow fell on the ground such as
revealed in the woods the track of every partridge and fox and squirrel
and mole. You cannot recall the spoken word. You cannot wipe out
the foot track. You cannot draw up the ladder so as to leave no inlet
or clew. Some damning circumstance always transpires. The laws and
substances of nature, water, snow, wind, gravitation, become penalties
to the thief.

So I say it is true that you have Nature in her honesty, in her
great purpose to subserve men, and especially to protect innocent
life, to aid you in the solution of this problem, if you will but read
her aright, and you can apply to her ; and to her laws, these great
attributes which belong to you, and which I have named, and when
that application is properly made the solution of the problem of as-
certaining the truth or falsity of the charge preferred against this
defendant becomes, in my judgment, comparatively easy, one which
is easy to solve one way or the other. You will find that by Nature's
law these things which are invariably left around human action,
human conduct, called circumstances, if read aright by the true law
of Nature, will either always point towards innocence, and therefore
it is truthfully said in the language of the book I read from that
"Nature reveals innocence," or if guilt exists they will invariably
point, if read aright, towards guilt. And therefore, while Nature,
will all her mighty power protects innocence, she at the same time,
in the interest of man, in the interest of the enforcement of the law,
in the interest of the upholding of the dignity and power and
supremacy of government that it may be reverenced by men and
its laws obeyed by them, is equally all-powerful in uncovering guilt.
Then it is that we are to solve these problems by these tracks which
Nature has left around the occurrence, and which Nature permits
us to read. And I say to you, in this connection, that it is but these
natural things which make up what we call in the law tbat volume
of testimony so often resorted to in the courts, called circumstantial
evidence. When true, when forming a connected chain, when properly
produced to the jury, it is all-powerful in its proving power as
though a human agent in the shape of a living being had applied
to the transaction at the time of its occurrence some one of his

Appendix F277

five senses in order that he might come here as a positive eye-witness
before you and tell you of the occurrence. You see and understand
that in this case, as in a large proportion of cases where human life
has been taken, there is no human eye which witnessed the destruc-
tion of that life, except the eye of the author of the crime. The eye
of the man who has been murdered, if murder exists, is closed in
death. His tongue is silent. No one of his five senses can be used
to reproduce the occurrence before you. It is true that he can be
brought here with all of his gaping wounds, from which there was
streaming his heart's blood, with his mangled clothing, with the
bloody garments which were found near him they can all be pro-
duced before you as inanimate circumstances upon which no in-
fluence can be exerted to induce them to tell that which is false. They
are motiveless, they are inanimate, and therefore no motive can cause
them to be influenced, and yet, though they be inanimate, in the
language of the great poet, Shakespeare, they are made upon occasions
like this to speak with wondrous power to enable you to see the truth
of this case.

Now, gentlemen, it is necessary that we should proceed in detail
to see what this crime as charged is, then see whether or not it
exists as charged, then whether or not this defendant is the author
of that crime. These are the several general propositions which make
up the one asserted here by the government in this indictment. It
is stated in the first count of this indictment that this defendant took
the life of the man who is alleged to have been murdered, named
Zachariah W. Thatch, and that he did it willfully and with malice
aforethought; that he did it with a blunt instrument, a more partic-
ular description of such blunt instrument being to the grand jurors
unknown; that he used that blunt instrument in such a way as to
willfully and with malice aforethought destroy the life of Zachariah
W. Thatch* That is the charge in the first count of the indictment.
The charge in the second count of the indictment pertains to the
killing of the same man, of the same name, by the same party, the
defendant, George W. Wilson. It is alleged in that count of the
indictment that the means used by the defendant in taking the life
of Zachariah W. Thatch were unknown to the grand jury, but that
he used these unknown means in such a way as to willfully and with
malice aforethought destroy his life. Now, if you believe this charge

278 APPENDIX F

to be true, as I have named it to you, then you are to designate the
count in the indictment which is appropriate as the one upon which
you will find your verdict. If you find, from the circumstances of
this case, that it was a blunt instrument used, and its nature was
unknown to the grand jury, judging from the character of the
evidence here, then your appropriate finding would be upon the first
count of the indictment. If you are unable, as was the grand jury,
in your judgment, from the testimony here, to find beyond a reason-
able doubt the nature of the instrument used, then the appropriate
finding would be upon the second count of the indictment, where
the instrument is alleged to have been unknown to them.

We now proceed, I say, in detail, to ascertain what propositions
are necessary to be found. First, we are required to find that
Zachariah W. Thatch is dead. That is the very initial point in this
case. It is the point from which we start, because, if it should turn
out in an investigation that a man was not dead, that stops the
inquiry. We need not go any further. And by proceeding in this way
there might be cases where the work could be shortened. I take up
these propositions in detail because it makes it easier for you. If I
were to tell you in a general way, by so many sentences, that certain
things must be found, and stop there, you might overlook them
when you came to make the application of the law. So we must
enter into this charge in detail in order that you may the better
recall the testimony bearing upon each proposition as we go along
and have it fixed in your mind as to whether or not that proposition
is established and established to the extent required by the law.

In ascertaining the proposition that he is dead, that inquiry
necessarily involves the identity of the body found, with the dead
body of Zachariah W. Thatch. Then it becomes, right at this point,
a question of identity, because the government does not produce
the body; the government claims that was the body of Mr. Thatch,
and it is to the identity of that body that we are to confine our
investigation here. Now we are to proceed to ascertain how bis
identity may be established, and in doing that we cannot do better
than to read from the charge of the court here, delivered to the
jury which tried the case of the United States versus Graves, a man
tried in this court some time ago, and you will ascertain from the
principles of law laid down in that charge exactly how you may

Appendix F 279

ascertain that this was the body of Mr. Thatch; but you will
bear in mind all the time that all these propositions I will enumerate
to you in detail the fact of the death of Thatch, involving his
identity; the fact that he died by violence of the kind described in
the indictment; the fact that violence was criminal, and the conclud-
ing fact that the defendant was the author of that violence, may
all be established by these things called circumstances, which are a
part of Nature.

This is a case like hundreds of others which occur in the adminis-
tration of justice in this country where you may not be able to look
upon the face of a dead man, or look into it and see that it is the
face of a certain man, because the face may have been destroyed.
The decaying finger of time may have touched it. It may no longer
exist, and the question then becomes pertinent right here: how we
are to establish the identity in this case of Thatch, how we are
to ascertain that proposition. You see a man alive, with whom you
are acquainted your friend, a man you have met often; you can
look into his face and from the nature of that face, its form or
appearance, and its very cast, its features, its lineaments, made up
of a number of things combined, you can swear, from an observation
of these, to the identity of the person, from that face and from this
combination of things which produces a certain appearance, and this
combination, as it is illuminated by the light which comes through
the windows of the soul, his expression and intelligence which exists
in the human mind and which beams out over the face, you are
able to know it. You can look into the face of a friend or an
acquaintance and name him as a man whom you know. When a man
is dead this illuminating power which is connected with the human
mind, and which comes from the mind, disappears, and, necessarily,
the human face, while it is preserved, until it is destroyed, only
presents the general outline which it had when the person was alive.
There was something about it in life which is gone forever, it is
destroyed, and you will have a little more difficulty in recognizing
the face of a man, although he may be an acquaintance, yet, as a
general rule, you can recognize him by his face. But suppose his face
is gone, the body is partially, or it may be entirely, destroyed;
what then are you to do? When a man has been murdered the rights
of society and the rights of its members have been thus wickedly

280 APPENDIX F

trampled upon by a brutal assassination; are you to make no effort
to discover the crime and punish the criminal because the identity
of the remains of the person, by the means I have named, cannot be
ascertained? Not at all. You can go to the means extraneous to the
body of the person. You can, in other words, fall back upon that
evidence which is so often and so generally and usually relied upon,
called "circumstantial evidence," to ascertain that fact. Now, the fact
to be proven under this proposition is the identity of Zachariah W.
Thatch, the man alleged by the government to have been murdered.
That is a proposition which, if a man would come before you and
say he had looked at the dead body, he saw it, and from its face,
its form, its appearance he knew it, then you could take the state-
ments of a witness of that character as the positive statements of
an eye-witness to that fact. As I have already told you, in regard
to a live person, we can recognize it from a combination of things,
such as the character of the nose, the appearance of the eyes, the
shape of the mouth, and the general appearance and outline of the
face of the party, and all these things which are illuminated by that
light which comes from the soul, from the mind. When there is no
opportunity of that kind, identity may be made in that way by a
person having looked at and observed the man, and being able to
tell what he observed at that time and to tell it to a jury. Now, in
the absence of both of these opportunities, the man being dead, and
thus one of the means of recognition gone, or if the face is so far
decayed as that persons cannot look into that face, the inquiry
naturally arises whether there are other means of identification. Mr.
Burrill, an eminent writer upon the subject of circumstantial evi-
dence, says:

Where the body is found, shortly after the commission of the crime,
and the face has not been disfigured by the violence employed, or by
accident, or in the natural course of decay, the identification is made
in the form of direct and positive proof of the fact by those to whom
the deceased is known. But where the features have been destroyed the
body may be identified by circumstances, as by the dress, articles
found on the person, and by natural marks upon the person. In
Colt's case, where a considerable portion of the face had been beaten
in by blows Colt was the brother of the inventor of Colt's pistols,
and he murdered a man in the city of New York, mutilated him by

Appendix F 281

cutting him up, put him in a barrel, started to ship him to Charleston,
or New Orleans, or some other place, and was discovered and the
progress of decay had otherwise rendered direct recognition impossible,
the body was identified in this way. In McCann's case, where the
face of the deceased had been eaten away by the hogs, identification
was effected in a similar manner. Even where nothing but a skeleton
has been found, it may sometimes be identified by peculiar marks, and
by objects discovered near it. In the case of Rex versus Clews (4
Carrington & Payne, 221) the body of a man, after the lapse of
twenty-three years, was identified by his widow from some peculiarity
about his teeth, and by a carpenter's rule and a pair of shoes found
with the remains, and also identified. But in examining skeletons, great
attention should be paid to their anatomical characteristics, upon which
the important fact of the age and sex of the person depends, as these
may be decisive of the whole case in favor of the accused. Where the
body has been purposely mutilated, and especially where it has been
dismembered, with a view to its destruction, by fire or otherwise, its
identification becomes a matter of greater difficulty, the head being
usually destroyed first, for the very purpose of preventing recognition,
but it occasionally happens that even the agency of fire, which is
generally selected as the readiest and most effectual means of destruc-
tion, proves inadequate to the purpose contemplated.

Sometimes it may happen that it will not even dry up and destroy
Ms blood.

In Webster's case, the head of the deceased had been placed in a
furnace, and exposed to a strong heat for a considerable time, but
some blocks of mineral teeth resisted the action of the fire so
effectively that they were identified by a dentist as part of a set of
artificial teeth which had been made for the deceased, and which the
latter wore at the time of his disappearance. Some other portions of
the body, which had not been subjected to the action of the fire, were
also identified by peculiar appearances. A case is mentioned by Mr.
Wills, in which the remains of a female, consisting merely of the trunk
of the body, from which the other parts had been cut, were identified
by a curious train of circumstantial evidence, embracing several facts
of conduct on the part of the prisoner.

Mr. Wills, on circumstantial evidence, further says:

It is not necessary that the remains should be identified by direct
and positive evidence, where such proof is impracticable, and especially

282 APPENDIX F

if it has been rendered so by the action of the person accused. A
man was convicted of the murder of a creditor, who had called for
the payment of a debt, and whose body he cut in pieces, and attempted
to dispose of by burning. The effluvium and other circumstances
alarmed the neighbors, and a portion of the body remained uncon-
sumed, sufficient to prove that it was that of a male adult, and various
articles which had belonged to the deceased were found on the person
of the prisoner, who was apprehended putting off from Black Rock, at
Liverpool, after having ineffectually attempted to elude justice by
drowning himself. The identification of human remains has been
facilitated by the preservation of the head and other parts in spirits;
by the anti-putrescent action of the substances used to destroy life; by
the similarity of the undigested remains of food found in the stomach
with the food which it has been known that the victim has eaten;
by means of clothing or other articles of the deceased traced to the
possession of the prisoner, and unexplained by any evidence, that he
became innocently possessed of them; by means of artificial teeth
and by means of other mechanical coincidences.

Mr. Wills further says upon the subject of identification:

Identification is often satisfactorily inferred from the correspondence
of fragments of garments, or of written or printed papers, or of other
articles belonging to or found in the possession of persons charged
with crime, with other portions or fragments discovered at or near
the scene of crime, or otherwise relating to the corpus delicti, or by
means of wounds or marks inflicted upon the person of the offender.

I think that is sufficient upon that proposition. You are told by
these cases I have referred to (and they are simply the declarations
of the law which are recognized everywhere as being the kw) that
the identity of the remains may be proven purely by circumstances,
may be proven by circumstances extraneous to the body that is,
that there are garments found which belonged to him, found upon
him, or identified as his, and garments found near where the body
was found, or garments or property of his, proven to be his, found
in the possession of a defendant and not satisfactorily accounted for
upon the theory that his possession is an innocent one. All these
means, then, in this case may be used for the purpose of enabling
you to come to the conclusion as to whether the body of the man
found in Rock Creek, at the place described by the witnesses, was

Appendix F 285

the body of Zachariah W. Thatch. If so, if these circumstances all
combined, whether connected immediately with the body or extrane-
ous of it, in your judgment, as honest, as intelligent and as just men,
are sufficient to establish this proposition beyond a reasonable
doubt, then you have proven the fact that Zachariah W. Thatch is
dead, because that body was dead; there can be no controversy over
that proposition. If that was his body, then he is dead. That is the
first proposition to be established.

The next proposition to be established is, did he die by violence,
either of the kind named in the first count of the indictment, or by
violence exercised in such a way as that the means by which it was
exercised that is, the weapon with which death was produced was
unknown to the grand jury, and is not known to you, beyond a rea-
sonable doubt. That is the second proposition to be established. Now,
how are you to get at that? By the same method by which you may
find the other one. You are to see in what condition that body was;
whether or not it presented any evidence of violence. You go to the
evidence and see what the condition of the skull was; whether the
testimony shows to you that it was crushed or that it was broken.
If so, that is a fact which would ordinarily satisfy reasonable men
that that act was one which might produce the death of Thatch, that
it might cause his death, and you would be justified, in the opinion
of the court, in so finding. But, of course, as to what the evidence
is, and as to its weight, you are to finally determine, and any sug-
gestions which may be made by the court upon the weight of testi-
mony are made to you with the distinct reservation to you that
you are the ultimate arbiters, not only as to what the testimony
is, but as to what its proving power amounts to. While the Federal
courts, under the practice prevailing in them, may take up the
testimony of each witness, even, and detail it to the jury, tell them
in the judgment of the court what it proves, I do not do that, but
if I were to do it, it is always done by leaving to you the ultimate
right of passing upon that very proposition and solving it for
yourselves. Then, upon this point, you look to the testimony and
see from it whether or not the second requisite of this charge is
established beyond a reasonable doubt.

The third proposition is, was he killed willfully, and with malice
aforethought. These are the attributes of murder. In addition to the

284 APPENDIX F

physical fact that he is dead, he must be killed in a certain way
so that we are able to say, under the law, that he was murdered,
that his life was taken in that wicked and wanton way denned by
the kws of the United States to be murder. These attributes that
is, that it was done willfully and done with malice aforethought
are the things which go to characterize an act so that it may be
named as murder. They have a legal meaning attached to them.
Each expression has a legal meaning attached to it. For that reason
we must stop here long enough to get that meaning, to ascertain what
it is. We will inquire first, whether that killing was done willfully;
we will see what is meant by that. We will then go to the method
that may be adopted by you in finding that proposition. What is
meant by "willful" as used in this connection? The law says it
means intentional, and not accidental. That is a definition of "will-
ful" which is remarkable for its brevity, and also for its power. It is
the most powerful definition which could be given when we get in
mind the strong contrast existing between a death produced by an
accident and one where there has operated to produce the act which
results in death the agency called the human mind. In the law a
thing which is called an "accident" is something which transpires
after a man has used the care exacted of him by the law to prevent
its occurrence. When he does that, although human life may be
destroyed, it is called an accident; it is called misadventure; it is
not a crime. Whenever he uses that care which the law says he
ought to use under the circumstances, considering the character of
the weapon handled or being used, and the dangerous consequences
which may be produced by it, you have a condition which is not
willful, a condition which is outside of the domain of willfulness,
and it is called a case of misadventure. Now, the opposite of that
is this expression which enters into the crime of murder, known as
an intentional act. It means this: If the evidence in a case shows
that the act which produced death was intentionally done, because
of the intimate connection between an act which will produce death
known as a deadly or dangerous act and death, the law says you
are authorized to find not only that the act was done intentionally
but that the death was intentional, because of that connection be-
tween cause and effect, between action and result, between the
deadly act and the death. Then in this case, if, from the circumstances

Appendix F 285

of it, from the character of the wounds, from the fact that the skull
was crushed, from the concealment of the remains, from the effort
to cover up all traces of the fact of the killing, and of the manner
of the killing, and from all these facts and circumstances combined
which have gone to you as evidence in this case, you are able to
conclude as rational men, as just men and as men loving truth,
beyond a reasonable doubt that that killing was done willfully, then
you may take that proposition as established, you may take it as
proven in the case. You can only know it, when a murder is alleged
to have been done, in secret as this is alleged to have been done,
by the means of these circumstances, by these means which Nature
by her great law presents to you as proven facts either to show
the truth or falsity of the proposition alleged. You can only know
it that way, as you can only know all the elements which enter into
any and every secret crime committed as this was committed, if it
was committed, in the hour of night, when no human eye except the
eye of the author of the crime beheld it. You can only know it by
the light of these things left around it, and which can be seen through
Nature and by Nature's laws to enable you to fathom this mystery,
to know the truth of this case. Then, look at the evidence. You
must understand the meaning of this expression, not only because
it is necessary for you to understand it as an element which enters
into the crime of murder, but because if you find this to be a case
where the killing was done without provocation, and therefore out-
side of a state of case where the law of self-defense would be ap-
plicable, or a killing in the absence of mitigating facts and therefore
outside of a state of case where the law of manslaughter would be
applicable, and you have a set of facts and circumstances which show
that it was done willfully, done wrongfully, done illegally, you have
that which establishes the other element of the crime known as
"malice aforethought/* which is the distinguishing characteristic of
the crime of murder, that which stamps it as murder and gives it a
character different from any other homicide, or from any other crime
which results in death.

Let us now see how "malice aforethought" is defined. The law
says that this characteristic of murder means the doing of a wrong-
ful and illegal act in a way which is not justified or mitigated, and
which act results in the taking of a human life causelessly and

286 APPENDIX F

wickedly in such a way as to show premeditation, to show that it
was thought of beforehand, to show that it was planned by its
perpetrator, by its author, and that it was executed by him in
pursuance of a previous purpose to take that human life. We cannot
entertain a purpose to wrongfully destroy human life. We can enter-
tain a purpose to defend ourselves and be justified in entertaining
it, and we can deliberate upon it, we can premeditate upon it, but
if it be a case of killing where there is nothing of that kind in it, and
the killing is shown to have been wrongfully and illegally done, and
the facts and circumstances show, under such a state of case, pre-
meditation and deliberation, these are evidences of malice afore-
thought, because they show the existence of a state of case where
human life has been destroyed in such a way as to show that it was
wrongfully and illegally destroyed, without just cause, or in the
absence of mitigating facts. Mr. Wharton, in Section 35 of his work
upon Homicide, says:

Malice is implied from any deliberate, cruel act committed by one
person against another, however sudden, as where a man kills another
suddenly without any, or without considerable, provocation, and
with a deadly weapon, it being a maxim based on ordinary experience
that no person unless under the influence of malice would be guilty
of such an act upon slight or upon no apparent cause.

Again upon this subject:

Where there is a deliberate intent to kill, unless it be in the dis-
charge of a duty imposed by the public authorities, or in self-defense
or in necessity, the offense must be murder at common law, as
evidenced by the execution of the deliberate intent, wrongfully and
improperly.

Further, upon the definition of malice aforethought and I want
you to observe in this connection that there is a proposition referred
to which will be a little more elaborately given after a while, and
which has reference to the fact that you are not required in the
investigation of these cases, before you can come to a conclusion of
guilt, to find the existence of a motive for the crime, or the adequacy
of that motive, for if you were to stop, to hesitate and to fail to
enforce the law and thus stop the wheels of justice until you could

Appendix .F 287

find an adequate motive for a deliberate and wicked and unprovoked
killing, you never would, in the judgment of honest men and of
men with pure hearts and proper minds, find a motive which was
adequate, because all this world, with its riches, if it be a case where
lucre was the cause, was the motive, is not a motive sufficient hi the
judgment of a good man to destroy an innocent human life, and
therefore we never do find motives which are adequate, and if we
are to wait until we do that is the end of all enforcement of the law,
that is the end of all the protecting power arising from the enforce-
ment of the law; but we are not required to do that, as you will learn
further on. I read to you now from the case of Lander versus The
State, upon the subject of malice aforethought:

When the law makes use of the term "malice aforethought" as
descriptive of the crime of murder, it is not to be understood merely
in the sense of a principle of malevolence to particulars, but as meaning
that the fact has been attended with such circumstances as are the
ordinary symptoms of a wicked and malignant spirit.

It is not necessary to show that a man had special spite or hatred
or ill will against the man whom he may have killed, because it very
often happens that men kill when there is nothing of this kind exist-
ing. But there is another motive which prompts them. There is always
a motive to cause the hand of the murderer to strike its victim. There
always does exist a motive for that, but sometimes we lose it because
of its inadequacy in our judgment we overlook it sometimes. It is
not necessary that that should be proven. It is not necessary that
it should be shown that there was any special spite or hatred or
ill will against the party slain. That sometimes exists as a motive,
as a cause, and sometimes it does not; sometimes there are other
reasons for the killing. A man may kill for revenge, he may kill
from jealousy, he may kill from a great many things from which
spring special spite, or a grudge, or a state of ill will which he
desires to satisfy, but there are many other reasons for a killing
which are equally as wicked, and even perhaps more so, because it
often happens when a man kills from ill will that he has considerable
provocation. He goes too far, he exceeds his authority and takes
human life. But still, when we look at the uniformity and the
wickedness of the mind of men there are many things which are

288 APPENDIX F

highly provocative in the law which are not justifiable, nor can
they be mitigated, and that is a case where the man who takes
human life is entitled to the greatest sympathy, if he is otherwise
a good man. It often happens that this is true. But when we come
to a case where a man kills for gain, for lucre, to get that which does
not belong to him, we must all agree in the truthfulness of the
proposition that that is a motive of the basest character, that that is
a motive of the most degrading nature, showing a heart void of
social duty and a mind fatally bent upon mischief. Further, upon
this line:

Malice, in its legal sense, denotes a wrongful act done intentionally,
without just cause or excuse. The legal import of the term, it has
been said, differs from its acceptation in common conversation. It is
not, as in ordinary speech, only an expression of hatred or ill will
to an individual, but means any wicked or mischievous intent of the
mind. Thus, in the crime of murder, which is always stated in the
indictment to be committed with malice aforethought, it is neither
necessary in support of such indictment to show that the person had
any enmity to the deceased, nor would proof of the absence of ill
will furnish the accused with any defense when it is proved that the
act of killing was intentional and done without justifiable cause. Malice
in law is a mere inference of law which results simply from a willful
transgression of the law. It imports simply the perverse disposition
of one who does an act which is unlawful without sufficient legal
excuse therefor. And the precise and particular intention with which
he did the act, whether he was moved by anger, hatred or a desire
for gain, is immaterial. He acts maliciously in willfully transgressing
the law.

Now, the other expression which denotes the meaning of malice
aforethought is: The killing of a human being done In such a way as
to show that he who did it had a heart void of social duty and a mind
fatally bent upon mischief. That implies that the man who thus
kills has forgotten the great obligation which we all owe to each
other not to destroy innocent human life but to protect It. And
when we do destroy it without just cause, when we do destroy it for
gain, in order that we may get property, or from a spirit of
vengeance, or from any other motive which stamps the killing as a
crime of a high degree, and which is of a character that may be

Appendix F 289

taken into account by those who pass in judgment upon the case as
evidence of a malignant spirit, as evidence of a heart which is
void of this duty, when the circumstances, from their wickedness,
from their unprovoked character, from the fact that there is nothing
shown to mitigate the act or to justify it, are in existence as evinced
by the testimony, the very fact that such an act is proven shows
that he who did it had a heart fatally bent upon mischief. There
are degrees of crime by the law of morals, and there are degrees of
crime by the laws of the land. If a crime which results in the taking
of a human life is committed by lying in wait, by watching an
opportunity in the darkness of the night, by taking action when the
party is off his guard, such a crime is known to the law of the land
as assassination, as the highest crime which can be committed which
destroys human life, because it is done by taking advantage of the
unsuspecting victim; the party who commits it awaits his opportunity,
he takes advantage of the helpless condition of the innocent and
murdered man; and it is known, I say, as assassination; it is known
as a killing by lying in wait, and it is denounced by the legislatures
in every State and in every civilized country as a killing which alone
is murder a killing by lying in wait, a killing by assassination.

I told you a while ago that to enable you to find the existence of
malice aforethought, or that the act was done willfully, you need not
stop to hunt for motive. If the motive exists, if it is proven, it
becomes evidentiary in the case and you may use it. You may use
it not only to enable you to characterize the killing, to show what
manner of killing it was, but you have the right to use it also to
bring that killing home to a particular individual charged with it,
because if you can trace the connection between the motive existing
in the breast or mind of a particular party as the cause which pro-
duces the deadly act, you have a fact which brings the crime home
to the party who possessed that motive, and, I say, if it is manifested
in a case, you are not required to look after it, you are not required
to pass upon its adequacy, you may still use it as evidence in the
case for the purposes I have named. Now, Mr. Wharton, that eminent
author upon the subject of criminal law, iu his work upon Homicide,
Section 670-A, says:

It is sometimes urged, is it likely that one man should kill another
for so small an article? Are we not to infer when there is a homicide

290 APPENDIX F

which is followed by the stealing of a mere trifle that the homicide
was the result of sudden passion rather than lucre causa? Or for
some prejudice or spite is it likely that one man would assassinate
another, and thus expose himself to the gallows? No doubt, when a
tender mother kills her child or a friend kills a friend, and nothing
more than the fact of killing is proved, we may be led to infer mis-
adventure or insanity from the motivelessness of the act. But we
have no right to make such an inference because the motive is dis-
proportionate. We are all of us apt to act upon very inadequate motives,
and the history of crime shows that murders are generally committed
from motives comparatively trivial. A man unaccustomed to control
his passions, and unregulated by religious or moral sense, exaggerates
an affront or nourishes a suspicion until he determines that only the
blood of the supposed offender can relieve the pang. Crime is rarely
logical. Under a government where the laws are executed with ordinary
certainty, all crime is a blunder, as well as a wrong. If we should hold
that no crime is to be punished except such as is rational, then there
would be no crime to be punished, for no crime can be found that is
rational. The motive is never correlative to the crime, never accurately
proportioned to it. Nor does this apply solely to the very poor. Very
rich men have been known to defraud others even of trifles, to forge
wills, to kidnap and kill, so that an inheritance might be theirs. When
a powerful passion seeks gratification it is no extenuation that the act
is illogical, for when passion is once allowed to operate reason loosens
its restraints.

There is the germ from which springs this bloody crime which
results in the death of innocent human beings unbridled passion
a desire for gain a mind which has never been regulated by that
high moral sense which governs honest men, a mind which is not
prompted by that spirit of amity and good fellowship which causes
a good man to love another as his brother. That is all out of the
mind. He may be shrewd, he may be quick-witted, In some respects,
he may be sagacious, but when he becomes a criminal by assassina-
tion, by killing another in an unprovoked way, in the darkness of
night, he does it because he is entirely void of moral nature; he
has not that principle of right imbedded in his mind which teaches
him the difference between right and wrong, and that is the secret
of the commission of a crime committed in that way. A little further
upon the subject of "motive," reading from the charge of Judge

Appendix F 291

Landon in the Billings trial, a noted case in the State of New York,
where he said:

I speak first of motive. No man commits a crime without some
motive leading him to commit it. That motive may seem to be strong
or weak. You are not to inquire whether the motive is one that would
ordinarily lead to the commission of the crime charged. It is difficult
for the mind that is fortified by the consciousness of its own rectitude
to conceive of an adequate motive for any crime. No motive will
lead an entirely just man to the commission of any crime. You could
not be moved to take the life of your fellow-man except in the just
defense of your own lives and rights, or the just defense of the lives
and rights of those whom it is your duty to defend. But just defense
is no crime. You may, however, properly inquire what motives usually
lead men to the commission of crimes, and you will find where mens*
consciences and morals are depraved they are often led into the gravest
of crimes by the simplest of motives. A small sum of money, a word
spoken in anger or insult, wrongs real or imaginary, revenge, jealousy,
hatred, envy and malice often lead to the crime of murder.

We find that any one of these may become the mainspring of
high crimes of this nature.

A word or two further as to how you may find this distinguishing
trait of murder known as "malice aforethought." I have already told
you that you may find it, as well as other propositions in the case,
from the circumstances surrounding that case. I will add to that by
saying that you must find it in that way if you are to find it at all,
because it is a condition of the mind, just like "willfully." You
cannot know a mental condition except by the light of circumstances.
No human power has ever devised any scheme by which we can
apply to the working of the human mind directly or immediately any
one of the five senses. You cannot touch it, you cannot taste it, you
cannot feel it, you cannot hear it, you cannot smell it; therefore,
there is no direct method of understanding the movements of the
mind, but we are to bear in mind all the time that by law and by
logic it is a legitimate method to reason from effect to cause, or from
cause to effect, and when you have an effect produced, when you
have a dead body presenting marks of deadly violence, you are to
gather up all the circumstances connected with that death, if you
find that to be the condition as an effect, and to reason back to the

292 APPENDIX F

cause of it. If it is an act which evidences that it was done delib-
erately, done because the mind dictated it should be done, and not
done accidentally, then we have that which shows the existence of
premeditation, of thought of beforehand, and consequently that
which shows malice aforethought. We may take into consideration all
the facts showing the time of the killing, the manner of the killing,
the concealment of the fact of death, or the attempt to conceal it by
placing the body under water and putting logs upon it, the attempt
to obliterate evidences of the death all these things are pertinent
facts, pertinent circumstances surrounding the transaction to show,
first, that a killing occurred, and to show it was a crime, and to show
that it had connected with it this attribute of murder known as
"malice aforethought." We may resort to all these circumstances
for that purpose as means which we must use if we are to get at
the proposition as to whether the killing was one which was murder
or not, because, as I have already told you, you cannot know it in
any other way.

There are but few more things to be said by the court in this case.
You are to bear in mind that there are just two general propositions
entering into your verdict, the truth of the case and the principle
of the law applicable to that truth. I have given to you the language
of the law defining this crime of murder charged in this indictment.
Then the question becomes pertinent upon my part to ask you
whether or not, in your judgment, the proposition asserted in this
indictment has been so proven, as under the principles of the law
which I will give you in a moment, the crime of murder has been
established. If that is the truth of the case, then the principle of
the law applicable to that truth is that which defines the crime which
tells you what is murder. In that way you get at a rational result;
in that way you arrive at what is called your true speech, your very
dictum your verdict. Every proclamation which you make here in
the shape of a verdict has involved in it and interwoven with it, I
say, the law of the case which is applicable to the truth of it as you
find it by your judgment and by your consciences.

Now we come to the point where I am to remind you, as I have
already, but I remind you again, that your certain duty is to find
out what the truth of the case is as ascertained by you from the
evidence which has been offered before you. As we so often remark,

Appendix F 293

it is impossible to reproduce actually and really this occurrence, or
to reproduce it as it would be reproduced upon a stage. It is a
drama which cannot be presented to a jury in that way. The bloody
drama can only be seen by the light of the testimony which il-
luminates it, which lights it up, so you are able, as honest, con-
scientious, and intelligent men, of judgment and reason and memory,
having a desire to arrive at the truth, to see to it by the light of
these circumstances which are brought here as witnesses and offered
before you in this case. Then let us go over again the general
propositions necessary to be found. First, you are to find whether
the man alleged to have been killed is dead, and in passing upon that
you are to take into consideration all of these circumstances sur-
rounding it, and whether he was killed in such a way as to make
the crime murder. Then when we come to the proposition as to the
guilt or innocence of the defendant you are to ascertain whether by
the light of this testimony he had the means at hand to produce this
deadly result, and, secondly, whether he had the opportunity to
produce it. Then what are the circumstances in the case pointing to
the guilt or innocence of the defendant. All these facts and circum-
stances you have a right to take into consideration; you have a right
to have them all pass in review again and again, if necessary, when
you come to consider the case in your jury room, in order that you
may the better see whether guilt or innocence exists here. Every item
of testimony is to be considered, not by itself alone, because some
of it may be very insignificant when considered alone, but when
considered in conjunction with other facts, when considered as a
link going to make up the chain of evidence, it may have great
proving power, it may have great weight as a fact in the case. Then
it is your duty to see what presumptions you can legitimately draw
from the facts and circumstances in this case. The law says that if
a man has been killed, and killed in such a way as to show it was
done murderously under the law I have given you defining the
crime of murder, then you are to look to see whether the party
accused of the killing was found in possession of any of the property
of the man killed* If so, that is the foundation of presumption; it
is not conclusive in the beginning, but it is a presumption which
you are to look at just as you would look at it as reasonable men
outside of the jury box. The party so found in possession of such

294 APPENDIX F

property, recently after the crime, is required to account for it, to
show that as far as he was concerned that possession was innocent,
and was honest. If it is accounted for in that way, then it ceases
to be the foundation for a presumption. If it is not accounted for
in that satisfactory, straightforward and truthful way that would
stamp it as an honest accounting, then it is the foundation for a
presumption of guilt against the defendant in this case, just upon
the same principle as if a certain man is charged with robbery or
larceny, and is found in the possession of the property stolen or
robbed, recently after the crime, he is called upon to explain that
possession. If his explanation of it is truthful, if it is consistent, if
it is apparently honest, if it is not contradictory, if it is the same
at all times, if it has the indicia of truth connected with it, that may
cause to pass out of the case the consideration of the presumption
arising from the possession of the property, but if it is not explained
in that way it becomes the foundation of a presumption against
the party who is thus found in possession of that property. Now,
that is not the only foundation for a presumption, but you take into
consideration the very appearance of this property, whether there
were bloodstains upon it indicating that there was blood of some
kind there, and if so whether that fact has been satisfactorily ex-
plained by the defendant in this case. If not, whether in your judg-
ment there is that in these numerous bloodstains upon these clothes,
bedclothing and found upon the straw in that bed, whether or not
that fact, if it has not been satisfactorily explained, is a fact upon
which you may base a presumption that there was an act of deadly
violence perpetrated while the party was upon these bedclothes, or
while he was connected with them in such a way as that the blood
was the blood of the murdered man, or the missing man. Now,
another foundation of a presumption is the fact of his false state-
ments. You understand that Nature, in her bountiful provision, has
given to man a set of rules by which he may know the truth above all
other things that rule, which underlies all nature, and which comes
from the same source that this state of nature comes, which has its
abiding place in the very breast of God Himself, because God is
truth the truth. The truth is the same yesterday, today, tomorrow
and forever. If a man makes a statement to you today about a trans-

Appendix F295

action which is one thing, and details to you another one tomorrow
which is something else, and another again which is something else,
you necessarily call upon him to explain why he has made these
contradictory statements, because you know they are not the at-
tributes of truth, you know they do not belong to the truth, because
the highest attribute which it possesses is harmony, its consistency,
and it possesses these attributes at all times, whether it is spoken
in the stillest and smallest voice with which it can be uttered, or
whether it is heard in the thunders of the clouds, or in the roar of
the waters of the ocean, or in the voice of the mighty earthquake,
it is still the voice of truth and the voice of Nature, and it speaks
the same at all times, and it has always attending it that which
stamps it as true. Therefore, if statements in this case before you
which are false were made by the defendant, or upon his side of the
case, if they were made by his instigation, and knowingly instigated
by him, you have a right to take into consideration the falsehoods
of the defendant, to see whether they are falsehoods. Then you are
to look at them to see whether he satisfactorily explains to you the
making of those false statements, and if he does not they are the
foundation of a presumption against him for the reasons I have given
you, because they are not in harmony with Nature, they are not in
harmony with truth, they do not speak the voice of truth, they speak
the voice of falsehood, they speak the voice of fraud, they speak the
voice of crime, they are not in harmony with that great law which in
all of its parts is consistent and harmonious. Then look to these
statements and view them, not alone, but in connection with the
other circumstances in the case, all the other circumstances which
have gone before you as evidence, to see whether or not the conduct
which is urged by the government as accusatory, as inculpatory, has
been satisfactorily explained by the defendant upon the theory of
his innocence. If so, then that conduct passes away as proving facts
in the case; it is no longer the foundation as proving facts; but if
these explanations are not satisfactory, if they are not in harmony
with the truth, the presumption must remain in the case and you
have a right to draw that inference from these circumstances I have
named.
In passing upon the credibility of the evidence you consider the

296 APPENDIX F

relation the witnesses bear to the case, their interest in it not
because they exhibit zeal in hunting up the evidence as to whether
a crime had been committed or not, for that is commendable, that
is the duty of every citizen, and if all of us performed it in all
circumstances as we ought to, crime would virtually disappear in the
country; and when witnesses exhibit zeal, when they exhibit energy,
when they exhibit enterprise hi gathering up all the circumstances
and minutiae which surrounds a case, they are entitled to the com-
mendation of all. That does not show an interest which would create
any undue bias in the judgment of the law against any man who
might testify. If a man is related to the case, however, so as to be
affected by the result of it directly or immediately, that is a con-
dition which you are to necessarily look at, because we are all largely
creatures of self-interest. If that self-interest is great, if it involves
the result which may deprive us of life, it is the greatest which can
ever confront us. If that is the condition, in passing upon the
testimony of such a witness we are to view that evidence in the light
of that condition, not that we are to necessarily exclude the testi-
mony because of that condition, but we are to apply this self-evident
principle which is applicable to all of us, that when we are so situated
we are more apt to testify so as to benefit ourselves than to testify
against ourselves, or even to keep along the strict line of truth. We
are more apt to wander from that line when there is that condition
confronting us than if we are entirely disinterested. Such testimony
is to be looked at in the face of that condition, and above all things
in the face of the other facts and circumstances. The defendant goes
upon the witness stand in this case, and you are to view his evidence
in the light of his relation to the case in the way I have named, and
in addition thereto you are to look at all the other facts and cir-
cumstances in the case as bearing upon his evidence to see whether
it contradicts what he says, and therefore weakens it; whether it is
so as to be contradictory and inconsistent from statements made by
him at other times; whether it is shown to lack these elements of
truthfulness known as rationality, consistency, naturalness; whether
these things are all absent from it, and whether, in your judgment,
it seems to be consistent and probable in itself when you come to
look at the story and listen to it and weigh it by your judgment If
it has these attributes they are evidences of its being true; if it

Appendix F 297

hasn't them, but has the opposite, this opposite condition made up of
these circumstances is an evidence of its being false.

The law says it is your duty in the investigation of these cases
to gather up all the accusatory facts, see what their combined
proving power is, and if it is equal to the testimony of one positive,
credible, uncontradicted eye-witness, then you proceed further in the
case to see whether that condition is destroyed or broken down or
eliminated from the case by the testimony which is exonerating in
its nature, which goes to show innocence. If it is not, then the con-
dition remains as one that sufficiently proves the case. That does
not mean that you have to have a witness of that kind before you
can convict a man, that you have to have a man who stood by and
saw this act of deadly violence committed. That is impossible in a
majority of cases. But it means that the facts and circumstances left
around that occurrence, under Nature's laws, are equal in proving
power to what would be the testimony of one such witness. When
there is that amount of evidence in the case the law says the case
is established beyond reasonable doubt, and when it is proven in
that way guilt is established, and conviction of that guilt is a matter
of solemn and imperative duty under your consciences and your
oaths.

Now, what is meant by that proposition? When we have given
that to you we are done; we have submitted the case to you, we
have passed it to your judgments, we have placed it in your hands
that you may deliberate upon it, that you may discharge this great
and solemn duty which I told you in the beginning, rests upon you
as the highest duty, the greatest responsibility ever cast upon any
citizen of this proud government. I say, it is to be proven beyond
a reasonable doubt. Not absolutely demonstrated, because the law
recognizes that you cannot demonstrate a proposition growing out
of human conduct. It is impossible to do that* The law does not
exact of you, in the performance of this great duty, impossibilities.
It does not command you with one voice to uphold the dignity and
power and supremacy of this mighty protecting agency called the law
of the land, and at the same time make it impossible for you to do
so. It permits you to do it in a possible and reasonable way. Now,
to what degree of certainty, then, must the several propositions
making up this crime be established? First, the proposition of the

298 APPENDIX F

law, which is an axiom, supposes that all men, when they enter upon
the trial of a case are clothed with the presumption of innocence,
which presumption surrounds all of us, just as does the presumption
of sanity. The law, from public policy, for the encouragement of the
good and the discouragement of vice, holds out to all mankind that
men are innocent. It does not always hold that out, because if it
did there would be no crimes existing, no matter what the conduct
of men might be, but it declares when a man is charged with a
crime that he is panoplied by this presumption of innocence, and it
further declares that that presumption remains with him until the
proof in the case drives it out of the case. The proof in the case
does destroy it, does drive it out, when it carries the propositions
making up the crime to a point where you are able to say, as
reasonable men, that you have an abiding conviction to a moral cer-
tainty of the truth of the charge, or so it is established that there is
no longer confronting the conclusion a doubt for which a good reason
can be given. In other words, if all doubts are driven out of the case
for which good reasons can be given, no other doubts are to be paid
any attention to, we are not to consider them for a moment, because
they exist as confronting every human proposition. Men doubt the
existence of the Deity. They sometimes are so skeptical that they
doubt their own existence. There are so many doubting Thomases in
the world that they will not even believe a proposition when it is
proven absolutely. Well, of course, that is not the deliberate mind,
that is not the reasonable mind. The reasonable mind is the one
which takes into consideration deliberately and dispassionately and
coolly all the proving facts and all the disproving facts, and when-
ever that mind is brought to a condition that its possessor is able to
say he is satisfied with the truth of the charge, that it is proven to
that degree of certainty that he willingly and readily believes it, and
will take whatever action upon that belief that duty calls upon him
to take, it is then established as such propositions are usually required
to be established by reasonable men, and that is the test, that is the
source of the rule. I will read to you, briefly, the opinion of the Su-
preme Court upon this proposition, commenting upon the charge of
the court in the case of Haupt versus Utah, where a man was upon
trial for murder, and where the court below gave this charge to the
jury:

Appendix F 299

The court charges you that the law presumes the defendant innocent
until proven guilty beyond a reasonable doubt ; that if you can reconcile
the evidence before you upon any reasonable hypothesis consistent
with the defendant's innocence you should do so, and in that case
find him not guilty. You are further instructed that you cannot find
the defendant guilty unless from all the evidence you believe him guilty
beyond a reasonable doubt. The court further charges you that a
reasonable doubt is a doubt based on reason, and which is reasonable
in view of all the evidence, and if from an impartial consideration of
all the evidence you can candidly say you are not satisfied of the
defendant's guilt, you have a reasonable doubt. But if after such
impartial comparison and consideration of all the evidence you can
truthfully say that you have an abiding conviction of the defendant's
guilt, such as you would be willing to act upon in the more weighty
and important matters relating to your own affairs, you have no reason-
able doubt. It is difficult to conceive what amount of conviction would
leave the mind of a juror free from a reasonable doubt if it be not
one which is so settled and fixed as to control his action in the more
weighty and important matters relating to his own affairs. Out of the
domain of the exact sciences and actual observation there is no
absolute certainty. The guilt of the accused in a majority of criminal
cases must necessarily be deducted from a variety of circumstances
leading to proof of the fact. Persons of speculative minds may in
almost every such case suggest possibilities of the truth being different
from that established by the most convincing proof. The jurors are
not to be led away by speculative notions as to such possibilities. In
the case of the Commonwealth versus Webster, the Supreme Judicial
Court of Massachusetts said in its charge, that it was not sufficient to
establish a probability, though a strong one, arising from the doctrine
of chances, that the fact charged against the prisoner was more likely
to be true than the contrary, and said:

"The evidence must establish the truth of the fact to a reasonable
and moral certainty, a certainty that convinces and directs the under-
standing and satisfies the reason and judgment of those who are bound
to act conscientiously upon it. This we take to be proof beyond
reasonable doubt. It is simple, and as a rule to guide the jury is as
intelligible to them generally as any that could be given with reference
to the conviction they should have of the defendant's guilt to justify
a verdict against him. In many cases, especially where the case is at
all complicated, some explanation or illustration of the rule may aid
In its full and just comprehension. As a matter of fact, it has been

300 APPENDIX F

the general practice in this country of courts holding criminal trials
to give such explanation or illustration. The rule may be, and often
is, rendered obscure by attempts at definition which serve to create
doubts instead of removing them, but an illustration like the one
given in this case by reference to the conviction upon which the jurors
would act in the weighty and important concerns of life, would be
likely to aid them to a right conclusion when an attempted definition
might fail. If the evidence produced be of such a convincing character
that they would unhesitatingly be governed by it in such weighty and
important matters they may be said to have no reasonable doubt
respecting the guilt or innocence of the accused, notwithstanding the
uncertainty that attends all human evidence."

The instruction in the case before us is as just a guide to practical
men as can well be given, and if it were open to criticism it could not
have misled the jury when considered in connection with the further
charge, that if they could reconcile the evidence with any reasonable
hypothesis consistent with the defendant's innocence they should do
so, and in that case find him not guilty. The evidence must satisfy
the judgment of the jurors as to the guilt of the defendant so as to
exclude any other reasonable conclusion. The instruction is not
materially different from that given by Lord Tenterden as repeated and
adopted by Chief Baron Pollock in the case of Rex versus Muller. "I
have heard," said the Chief Baron, addressing the jury, "the late
Lord Tenterden frequently lay down a rule which I will pronounce to
you in his own language:

"It is not necessary that you should have a certainty which does not
belong to any human transaction whatever. It is only necessary that
you should have that certainty with which you would transact yovr
own most important concerns in life. No doubt the question before you
today, involving, as it does, the life of the prisoner at the bar, must
be admitted to be of the highest importance* but you are only re-
quired to have that degree of certainty with which you decide upon
and conclude your own most important transactions in life. To
require more would be really to prevent the repression of crime, which
is the object of criminal courts to effect."

Gentlemen, that is the definition of the degree of certainty you are
to arrive at in this case before you find the defendant guilty. When
you have arrived at it, as sensible men, as just men, I say to you,
under the law it is your duty to find the defendant guilty, and to spec-

Appendix F 301

ify in your verdict under which count you find him guilty. If you
do not arrive at that conclusion to that degree of certainty, it is
equally your duty to pronounce him not guilty. I say to you, in con-
clusion, as I said to you in the beginning, that the very power and
majesty of this government and this law is in your hands in every
case as a part of the people of this land. You represent them, and you
represent the whole of them, to see to it that the maxim, (while it is
not there in burning letters, it has been pronounced as existing in this
court, and as engraven over its doors) that no guilty man shall escape
and no innocent man shall be punished, shall be verified in this case,
as it should be in every case. You will find forms upon the back of
the indictment. I submit the case to you. I ask you to pronounce
your solemn, your just, and your impartial judgment, as good men
and good citizens and good jurors, upon this case.
You will retire to make up your verdict.

NOTES

NOTES

CHAPTER I

1. US. Statutes at Large, XVI, 47.

2. Records of Disposition of Cases, 1872-1873, United States Court
for the Western District of Arkansas.

3. S. W. Harman, Hell on the Border; He Hanged Eighty-Eight Men,
195.

CHAPTER II

1. Laws of the V.S., DC, 128-129.

2. Ibid., Sec. 1.

3. Ibid., Sec, 24.

4. Ibid., Sec. 25.

5. tf.5. Statutes at Large, V, 379.

6. Ibid.

7. Ibid., VI, 594.

8. JL Fred Patton, The History of Fort Smith, Arkansas, publication
of Fort Smith Chamber of Commerce.

9. The promontory stood thirty feet above the water and completely
commanded both rivers. It was about one hundred yards west of the
present Arkansas-Oklahoma boundary. It had been named by French
hunters and traders, who made it a favorite stopping place as they

305

306 NOTES

journeyed up the Arkansas in the early days, trading jackknives, glass
beads, and other trinkets to the Indians for furs. (William Brown
Morrison, Military Posts and Camps in Oklahoma, pp. 15-16.)

10. This fort consisted of a stockade formed of heavy square timbers
driven closely together in the ground, with wooden blockhouses and a
sufficient number of outer buildings for barracks and officers' quarters.
The buildings were arranged to form a hollow square and the blockhouses
set at opposite angles, facing the river. (John H. Reynolds, Municipal
Offices, publication of Arkansas Historical Association, Vol. I.)

11. Patton, op. cit.

12. Laws of the VS., IX, 337.

13. Ibid., 838.

14. Harman, op. cit., pp. 26-28.

15. Ibid.

16. Dallas T. Herndon, The High Lights of Arkansas History, pp. 86-87.

17. John C, VanTramp, Prairie and Rocky Mountain Adventures, or,
Life in the West, p. 510.

18. Patton, op. cit.

19. UJS. Statutes at Large, DC, 594.

20. Ibid., X, 269.

21. Official Records of the Rebellion, I, Sec. 1, 682.

22. Herndon, op. cit., p. 102.

23. Morrison, op. cit., p. 24.

24. Ibid.

25. Arkansas Gazette, January 20, 1860.

26. U.S. Statutes at Large, XVI, 47.

27. Harman, op. cit., pp. 70-71.

28. Common Law Records of the United States Court for the Western
District of Arkansas, IV, 1-117.

29. Letter from Attorney General George H. Williams, dated June 27,
1874. (Filed November 9, 1874, Book of Records IV, 1874, 426.)

30. On September 8, 1865, commissioners of the United States govern-
ment met delegations from the several tribes at Fort Smith. The Indians
were informed that all their rights under previous treaties had been
forfeited and advised the terms under which they could be restored to
proper relations with the federal government. In the spring of 1866, at
Washington, commissioners of the United States government negotiated
treaties with delegates of the Five Civilized Tribes. The Seminole treaty
was ratified July 19, 1866; the Treaty of Chickasaws and Choctaws
ratified June 28, 1866; Creek treaty ratified July 19, 1866; and he
Cherokee treaty July 19, 1866. (U.S. Statutes at Large, XIV, 755-785.)

31. Edward Everett Dale, Cow Country, p. 32,

32. J. H. Beadle, Western Wilds and The Men Who Redeem Them,
pp. 194-211.

33. Under the Intercourse Law no person was permitted to reside or
trade in the Indian country without a license from the Superintendent

Notes 307

of Indian Affairs, or his agents. To secure a license the applicant was
required to post a penal bond not to exceed $5000, to be secured by one
or more sureties, and a new license was required every three years. Only
citizens of the United States could secure a license, and foreigners were
required to secure a permit from the President of the United States. Any
person attempting to reside in the Indian country and trade without a
license was to be fined $500 and forfeit his merchandise to the government.
(Laws of the United States, IX, 129.)

34. Dallas T. Herndon, Centennial History of Arkansas, I, 924.

35. May 3, 1873.

36. May 17, 1873.

37. February 11, 1S75.

38. Ibid.

39. August 21, 1873.

40. August 28, 1873.

CHAPTER III

1. Fay Hempstead, History of Arkansas, I, 29.

2. Ibid., p. 28.

3. Married December 12, 186L

4. William S. Speer mg. ed., The Encyclopedia of the New West, pp. 28-
29.

5. Hempstead, op. cit., p. 461.

6. Ibid.

7. Speer, op, cit.

8. James A. Garfield was chairman of this committee. He later became
President of the United States; William Wheeler, Vice-President; William
Hale, of Maine, declined the appointment as Postmaster General under
President Grant; James N. Tyner accepted the position and later became
assistant Attorney General for the Post Office Department; and Isaac C.
Parker became known throughout the world as "The Hanging Judge" of
Fort Smith, Arkansas.

9. Speer, op. cit.

10. Cherokee Advocate, December 21, 1872.

11. Ibid.

12. Harry P. Daily, Judge Isaac C. Parker, address at the thirty-fifth
annual meeting of the Bar Association of Arkansas, 1932.

13. Hempstead, op. cit., p. 460,

14. Dallas T. Herndon, Centennial History of Fort Smith, p. 898.

15. R. H. Mohler, City of Fort Smith, p. 108.

16. The Fort Smith Herald, founded in 1852 and purchased by Frank
Parks in 1870; the Independent; the Thirty-Eighth Parallel, edited by
George M. Turner; the New Era, edited by Valentine Dell, later to be-
come United States Marshal. And there were others that existed for only
short periods. The Elevator was established in 1878, and the Times
founded in 1882. The most prominent during Judge Parker's term was the

308 NOTES

Elevator, and in the latter years this newspaper carried rather full and
detailed accounts of the court's work, of the condemned's crimes, and of
the hangings.

17. Daily, op, tit.

18. Western Independent, April 8, 1875.

19. Oklahoma Star, November 23, 1874.

20. Rev. St., Chap. I, Sec. 533, forty-third Congress, 1873-74.

21. Benton, Washington, Crawford, Scott, Polk, Franklin, Johnson,
Madison, Carroll, Sevier, Sebastian, Fulton and Boone.

22. Phillips, Crittenden, Mississippi, Craighead, Greene, Randolph,
Cross, St. Francis, Monroe, Woodruff, Jackson, Independence, Izard,
Poinsett, Marion, Sharp, and Lawrence,

23. Harman, op. cit., p. 44.

24. Wheeler was described by Fort Smith newspapers as "a man of few
words, who made very little outward show of whatever he saw, felt or
did, but a kinder, more generous heart never beat in a human bosom."
He was a native of New York. He had gone west in 1858 and settled in
southern Michigan, where he enlisted in the Federal Army, September 1,
1861. He had served as a private, sergeant, first lieutenant, and captain
in the engineers, infantry, and cavalry branches of the service, and fought
in the battles of Pea Ridge, Prairie Grove, and Newtonia, Arkansas, and
in Missouri and Louisiana, under Generals Fr6mont, Blunt, and Steel.
After the war he had settled at Powhatan, Arkansas, where he was ap-
pointed assistant assessor of internal revenue, assessor, and later collector.
He had edited a newspaper at DeValTs Bluff in 1S69, but resigned to
become quartermaster general of militia with the rank of brigadier general.
At the state Republican convention in 1872 he received the nomination
for senator from Arkansas and Prairie counties but declined to run. Instead
he ran for the office of state auditor and was elected. When his term
expired in 187S, he moved to Fort Smith and was appointed clerk of
the Fort Smith Federal Circuit Court for the Eighth Judicial Circuit and
clerk of the United States Criminal Court for the Western District of
Arkansas.

25. Records of the United States District Court for the Western District
of Arkansas, 1S75-1897.

26. List of United States Marshals for the Western District of Arkansas
succeeding Marshal Sarber, giving their names, the President by whom
appointed, and date of commissions:

James F. Fagan Grant July 2, 1874

D. P. Upham Grant July 10, 1876

Valentine Dell Hayes June 15, 1880

Thomas Boles Arthur Feb. 20, 1882

John Carroll Cleveland May 21, 1886

Jacob Yoes Harrison Jan. 29, 1890

George J. Crump Cleveland May 29, 1893 to

June 1, 1897

Notes 309

27. At one term of court he prosecuted eighteen men for murder and
convicted fifteen of them. "His success," Judge Parker said of him when
he left office in 1893, "is attributable to close application, indomitable
energy and tireless perserverance. As a lawyer, he was a very close, shrewd
and prudent examiner of witnesses." His record was surpassed by no
other prosecutor of his day and time.

28. Harman, op. cit., pp. 71-72; also Anna L. Dawes, Lend A Hand,

PP- 1-4-

29. See Appendix A, "Chronology of Hangings."

30. See Appendix A, "Chronology of Hangings."

CHAPTER IV

1. Fort Smith Elevator, May 8, 1896.

2. Attorney General Report, 1885, p. 14.

3. Harry P. Daily, op. cit.

4. Angie Debo, Tulsa: from Creek Town to OH Capital, p. 74.

5. Emmett Dalton, When the Daltons Rode, p. 59.

6. Harry P. Daily, op. cit.

7. Tulsa World, February 3, 1936, article "Lookout Tower on Bald
Hill"; Tulsa World, August 20, 1933, article "A Hill Perpetuates Belle
Starr's Memory"; also Harman, op. cit., pp. 304305.

8. Indian Champion, July 5, 1884.

9. Indian Champion, June 21, 1884.

10. Elevator, August 3, 1888.

11. Ibid., October 26, 1888.

12. Elevator, January 18, 1889.

13. Indian Chieftain, May 26, 1892.

14. Elevator, August 4, 1893.

15. Indian Champion, June 21, 1884.

16. Elevator, November 26, 1886.

17. Ibid., August 3, 1888.

18. Ibid., March 25, 1887,

19. Ibid,, April 6, 1888.

20. August IS, 1879.

21. November 30, 1875.

22. See Note 26, Chapter III.

23. John Carroll had been a resident of Arkansas since 1865. He was
born in Virginia, spent the early years of his life in the old Cherokee
Nation cast of the Mississippi, came west with the Cherokees, and settled
at Fort Gibson, where he married a fullblood Cherokee woman in 1858. In
that year he moved to Missouri. When the war broke out, he joined the
Confederate Army, He served throughout the war, participating in
numerous battles, and was discharged with the rank of colonel. He had
served in the Arkansas legislature and in the constitutional convention of
1874 before becoming United States Marshal.

24. Tucker v United States, 151 U.S. 164, 14 Sup. Ct 299.

310 NOTES

25. Harry P. Daily, op. dt.

26. Orpheus McGee, Aaron Wilson, William Leach, Isham Seely, Gibson
Ishtonnubbee. (See Appendix A, "Chronology of Hangings.")

27. Western Independent.

28. John Valley, Osee Sanders, Sinker Wilson, Samuel Peters. (See
Appendix A, "Chronology of Hangings.")

29. John Postoak, James Diggs. (See Appendix A, "Chronology of
Hangings.")

30. William Elliott alias Colorado Bill, Henri Stewart. (See Appendix
A, "Chronology of Hangings.")

31. George W. Padgett, William Brown, Patrick McGowan, Amos and
Abler Manley. (See Appendix A, "Chronology of Hangings.")

32. Edward Fulsom, Robert Massey. (See Appendix A, "Chronology
of Hangings.")

33. Martin Joseph, William Finch, Tualisto. (See Appendix A, "Chro-
nology of Hangings.")

34. Thomas Thompson, John Davis, Jack Woman Killer. (See Appendix
A, "Chronology of Hangings.")

35. William Phillips. (See Appendix A, "Chronology of Hangings.")

36. James Arcene, William Parchmeal, (See Appendix A, "Chronology
of Hangings.")

37. Records of the United States District Court for the Western District
of Arkansas, 1875-1885.

38. Attorney General Report, 1889, p. 22.

39. Laws of the US., XIX, 230.

40. Harman, op. dt., p. 45.

41. Harry P. Daily, op. cit.

42. Harman, op. cit., pp. 72-74.

43. Attorney General Report, 1884, p. 150,

44. December 25, 1885.

45. Attorney General Report, 1885, p. 30.

46. Ibid., 1886, p. 20.

CHAPTER V.

1. Wayne Gard, Frontier Justice, p. 288.

2. Ibid., p. 285.

3. Indian Chieftain, January 8, 1877.

4. Elevator, July 29, 1887.

5. Harry P. Daily, op. cit.

6. Cherokee Advocate, March 6, 1895.

7. Cherokee Advocate, June 2, 1882.

8. U.S. Statutes at targe, XIV, 236.

9. Indian Journal, March 1, 1888; also Federal Reporter, "Cherokee
Nation v. Southern Pacific," XXII, 900. (Reversed on a procedural matter,
135 U.S. 641, 34 L. ed. 295, 10 S. Ct 965, but affirmed by the Supreme
Court on the main principle involved,)

Notes 311

10. Carl Coke Rister, Land Hunger: David L. Payne and His Oklahoma
Boomers, pp. 90-91.

11. Indian Journal, March 3, 1881; also Federal Reporter, "United
States v. David L. Payne," VIII, 883-96.

Payne was arrested again in 1883 (Indian Chieftain, September 21,
1883) and brought to trial before Judge C. G. Foster in the district court
at Topeka, Kansas, on four charges of "conspiracy against the Govern-
ment in attempt to settle the Oklahoma country." See Federal Reporter,
"United States v. Payne et al," XXII, 426-27.

12. Parker said so again in 1885, when Connell Rogers, clerk in the
Union Agency at Muskogee, accompanied the military in the summer of
1884, arrested Payne, and burned his Rock Falls settlement in the Outlet.
Rogers was indicted in the United States Court at Wichita for arson. He
was placed under arrest by Marshal Boles of the Western District of
Arkansas, and the United States Attorney in Kansas applied for a writ of
removal in order to try him in Wichita. Judge Parker issued a writ of
habeas corpus, held Rogers for investigation as to the jurisdiction of the
Kansas court, placed him under bond of $1000, and sent him home. (In-
dian Journal, January 8, 1885.)

13. Indian Chieftain, November 19, 1896.

14. Ibid.

15. Elevator, February 25, 1887.

16. Document, Office of the Secretary of State, signed S. P. Hughes,
Governor of Arkansas, January 29, 1887.

17. Elevator, March 18, 1887.

18. Ibid., November 26, 1886.

19. Harry P. Daily, op. tit.

20. Ibid.

21. Address of President John Rogers in the published report of the
Fort Smith School Board, 1896-1897.

22. Harman, op, cit., p. 90.

23. For example, from the Congressional Record we get the following
statement of the work done in the United States Court for the Western
District of Arkansas for one year, November 1, 1882, to November 1,
1883:

The grand total (all crimes) foots up 588, of which 388 were convicted,
55 acquitted, 18 in which nolle proaequi was entered, 47 ignored and 20
forfeited their bond.

Mistrials by jury during the year. 7

Number of applications for witness in behalf of defendant at U.S. expenses
and acted on. 143

Number of witnesses recognized in open court. 575

Number of murder cases tried by jury, 20

Number convicted of murder) 9 ; manslaughter, 4. Total 13

Number of days consumed in trial of murder cases. 116

312 NOTES

Number of accounts examined and allowed for actual expenses. 26

Number of orders to pay witnesses. 1,996

Number of marshal's accounts currents examined and approved. 45

Number of other accounts, commissioners', etc., examined and approved. 30

Number of sentences passed upon defendants convicted. 388

Number of civil cases on docket November 1, 1882. 70

Number of cases commenced during the year. 158

Number of civil cases pending between November 1, 1882, and November 1,
1883. 228

Number of civil cases disposed of between November 1, 1882, and Novem-
ber 1, 1883. 92

Number of other orders made during said period in relation to jury, jury
commissioners, etc., and entered on record. 3,060

Number of pages of record written and made up during said time. 1,520

Number of days of court held during said year. 291

24. Emmett Dalton, op. dt., p. 54.

25. James Wasson, Joseph Jackson. (See Appendix A, "Chronology of
Hangings.")

26. Calvin James, Lincoln Sprole, (See Appendix A, "Chronology of
Hangings.")

27. Kit Ross. (See Appendix A, "Chronology of Hangings.")

28. James Lamb, Albert O'Dell, John T, Echols, John Stephens. (See
Appendix A, "Chronology of Hangings,")

29. Patrick McCarty. (See Appendix A, "Chronology of Hangings.")

30. Silas Hampton, Seaborn Kalijah. (See Appendix A, "Chronology of
Hangings.")

31. Jackson Crow, George Moss, Owen Hill. (See Appendix A, "Chro-
nology of Hangings.")

32. Gus Bogles. (See Appendix A, "Chronology of Hangings/')

33. Richard Smith. (See Appendix A, "Chronology of Hangings.")

34. James Mills, Malachi Allen. (See Appendix A, "Chronology of
Hangings.")

35. William Walker, Jack Spaniard. (See Appendix A, "Chronology of
Hangings.")

36. Harris Austin, John Billee, Thomas Willis, Jefferson Jones, Sam
Goin, Jimmon Bums. (See Appendix A, "Chronology of Hangings*")

37. "The big knot is the secret of a good execution,*' Maledon once
said. "The right way and the humane way to hang a man is to break his
neck, not to strangle him to death. It takes a long time to strangle a man
to death, and it isn't pretty to look at, for he kicks a good deal. But if
you break his neck there are no contortions. He is unconscious the instant
the neck breaks, and he hangs motionless. It is a painless death, and as
instantaneous as any death can be. ...

"You put the rope around the neck . * . draw it up just tight enough
to touch the skin all around without choking or interfering with the cir-

Notes 313

dilation of the blood, and put the big knot right under the left ear ...
so it lies in the hollow back of the jawbone. Then, here's a little secret the
most of them don't know: to keep the knot from slipping out of position
below the ear, you bring the rope up ... over the top of the head and let
it hang down in a curve on the other side. That holds the knot steady un-
der the ear, and when you spring the trap the man drops through, and
when the rope snaps taut that big knot throws his head sidewise and
cracks his neck in a jiffy. It always works that way for me. That's why
they call me the 'Prince of Hangmen.' " (A. B. MacDonald, Hands Up!,
pp. 155-156.)

38. Dalton, op. cit., p. 54.

39. Twelve of the seventy-nine executions were performed by Deputy
Marshal George Lawson and the remaining seven by various officers at-
tached to the court.

40. Harmon, op. cit., p. 44.

41. Records of the United States District Court for the Western Dis-
trict of Arkansas, 1875-1890.

CHAPTER VI

1. Elevator, January 22, 1886; ibid., June 25, 1886; MacDonald, op. cit.,
p. 231; Harman, op. cit., pp. 259-260.

2. The popular belief is that after he had spent one year in prison
Belle Starr had him pardoned. (MacDonald, op. cit., p. 234; Harman,
op. cit., pp. 260-261. Burton Rascoe in his important volume Belle Starr,
The Bandit Queen, p. 195, claims he was killed in the Indian Territory
by an unknown party in July, 1886.) The facts are: Blue Duck served
eight and a half years in prison, during which time he developed con-
sumption. Doctors gave him only one month to live, and President Cleve-
land, in March, 1895, issued a pardon "to permit him to die among
friends."

3. Harman, op. cit., p. 558.

4. Rascoe, op, cit., pp. 45-71; Duncan Aikraan, Calamity Jane and the
Lady Wildcats, pp. 158-165; Cameron Rogers, Gallant Ladies, pp. 117-
144.

5. Rascoe, op. cit., pp. 76-77.

6. Harman, op. cit., p. 559.

7. Ibid., p. 559-562.

8. Elevator, February 15, 1889; Rascoe, op. cit., pp. 115-119. Cole
Younger always denied his part in the Liberty, Missouri, robbery and
claimed that during this year he was in Louisiana and California, as was
also Jesse James. (Augustus C. Appier, The Life, Character and Daring
Exploits of the Younger Brothers, p. 24; William Ward, The Younger
Brothers, the Border Outlaws, p. 116; Robertas Love, The Rise and Fail
of Jesse fames, pp. 88-92.

9. Appier, op. cit., pp. 273-287.

10. Rascoe, op. cit. f pp. 153-154*

314 NOTES

11. Democratic Statesman (Dallas), April 17, 1874; Rascoe, op. cit.,
p. 117.

12. Rascoe, op. cit., pp. 156-157; Aikman, op. cit., pp. 178-179.

13. Rascoe, op. cit., pp. 166-167; Aikman, op. cit., p. 181.

14. Owen P. White, Lead and Likker, p. 183.

15. Old Tom's brother-in-law was Bill West, the most powerful man in
his day in the Cherokee Nation. A blow from his fist was as deadly as a
Winchester bullet. With this formidable weapon he killed several men, and
a law was passed declaring Bill's fist a deadly weapon. Old Tom and Bill had
been close companions, but one day they quarreled over the division of the
spoils of a plundering expedition. West struck at Tom, but the wily savage
dodged the blow and at the same time deftly placed a long, keen knife
blade between the former's ribs. This was the tragic end of Bill West. At
this time there was a reward of $2000 offered for West's head, and $5000
for that of Starr. Old Tom was in need of ready cash, and determined to
run the risk of losing his own head by trying to collect the reward on that
of his brother-in-law. He cut off West's head, put it in a gunny bag, and
proceeded to Tahlequah, the capital, where he presented his gory charge
to the chief, with the proof that it was the right head, and demanded the
reward. The chief and the treasurer both knew Tom's reputation. They
also knew that the reward on West's head was only $2000, while that
on Tom's was $5000. But Starr was there himself and meant business. At
the muzzle of a six-shooter the treasurer forked over the $2000, and old
Tom departed with the money to the delight and astonishment of the
people of Tahlequah without killing a single person. (Elevator, February
27, 1891.)

16. A member of the first sextet hanged by Judge Parker, September
3, 1875. Before he fell through the trap for the murder of William Sea-
bolt, Evans confessed his part in the Grayson robbery.

17. Dallas Democratic Statesman, April 7, 1874.

18. Austin Weekly Democratic Statesman, April 9, 1874.

19. Dallas Democratic Statesman, April 7, 1874.

20. Dallas Daily Herald, August 7, 1874.

21. Rascoe, op. cit., pp. 195-198.

22. Lon R. Stansbery, "Cowtown Catoosa, Dark and Bloody Ground of
Indian Territory" Tulsa World, June 25, 1937.

23. Homer S, Chambers, "Catoosa Indian Territory Cattle Capital**
Tulsa World, April 10, 1938.

24. Rascoe, op. dt., pp. 116-117.

25. New Bra, February 22, 1883; Indian Journal, March 22, 1883;
Cherokee Advocate, March 23, 1883.

26. See Chapter IV.

27. Rascoe, op. cit., pp. 224-229.

28. Indian Journal, March 11, 1886.

29. Indian Chieftain, February 14, 1889.

30. Elevator, February 8, 1889.

Notes 315

31. Indian Chieftain, February 14, 1889.

32. Ibid.

33. Elevator, February 22, 1889.

34. Indian Chieftain, March 7, 1889.

35. Affidavit of J. R. Hutchins, Ardmore, Oklahoma, 1950; Indian
Chieftain, January 30, 1890.

CHAPTER VII

1. Elevator, June 10, 1892.

2. Ibid.

3. Harman, op. cit., p. 636; Dalton, op. dt., pp. 94-97; Emerson Hough,
The Story of the Outlaw, pp. 378-379.

4. Elevator, May 15, 1891.

5. Elevator, September 18, 1891 (This robbery is admitted in Dalton,
op. cit., pp. 131-134.)

6. StiUwater Gazette, July 22, 1892; Harman, op. cit., p. 637; Hough,
op. cit., p. 379; J. A. Newsom, Life and Practice of the Wild and Modern
Indian, Ch. X, "Going Out of the Outlaws," p. 173.

7. Stillwater Gazette, June 10, 1891.

8. Hough, op. cit., p. 380.

Although the identity of raiders was never established, and it has always
been the general, though perhaps erroneous, opinion that the Daltons tried
their hands bank-robbing at the expense of this little Oklahoma com-
munity, in his book p. 102 Dalton states: "Until toward the very end,
when we held up some banks, our activities were directed at the express
company and its allies. . . ."

9. Elevator, May 15, 1891; Harman, op. cit., pp. 633-635; Glenn Shir-
ley, Six-Gun and Silver Star, pp. 25-27; Dalton, op. cit., pp. 13-14, 24-
25; Hough, op. cit., pp. 475-476; Newsom, op. cit., pp. 157-158; William
MacLeod Raine, Famous Sheriffs and Western Outlaws, p. 207.

10. Harman, op. cit., p. 635; Dalton, op. cit., p. 41.

11. Elevator, May 8, 1891; Ibid., September 18, 1891; Harman, op.
cit., pp. 635-636; Hough, op. cit., p. 378.

12. Dalton, op. cit., pp. 69-72.

13. Evett Dumas Nix, Oklahombres, p. 44; Harman, op. cit., p. 637;
Raine, op. cit., p. 208.

14. Coffeyville Journal, October 6, 1892; David Stewart Elliott, The
Last Raid of the Daltons, pp. 16-42; Harman, op. cit., pp. 637-643;
Hough, op. dt., pp. 381-390; Nix, op. cit., pp. 47-51; Newsom, op. cit.,
pp. 164-167.

15. Indian Chieftain, November 10, 1892.

16. Harman, op. cit., p. 664.

17. Ibid.; Daily Oklahoma State Capital, January 24, 1894.

18. Indian Chieftain, January 11, 1894.

19. Daily Oklahoma State Capital, January 24, 1894; Indian Chieftain,
January 25, 1894.

316 NOTES

20. Indian Journal, March 22, 1895.

A picturesque account of the siege of the Rogers home is given by Har-
man, op. cit. t pp. 667-673.

CHAPTER VIII

1. Indian Chieftain, November 1, 1894.

2. Ibid., January 24, 1895.

3. Harman, op. cit., p. 643.

4. Letter from Bill Cook, U.S. Jail, Fort Smith, Arkansas, March 19,
1895.

5. Eagle-Gazette, June 28, 1894.

6. Letter from Cook, op. cit.; Harman, op. cit., p. 3S9.

7. Eagle-Gazette, June 28, 1894; Harman, op. cit., pp. 390-391.

Jim Cook was tried in the tribal courts for the slaying of Houston,
found guilty of manslaughter, and sentenced to eight years in the Cherokee
National Prison. He escaped prison in December, 1896, was recaptured at
Muskogee, and was returned to the penitentiary April 6, 189 7. Eagle-
Gazette, November 8, 1894; Ibid., November 29, 1894; El Reno News,
January 22, 1897; Indian Chieftain, April 18, 1897.

8. Daily Oklahoma, October 23, 1894.

9. Harman, op. cit., p. 647.

10. Indian Chieftain, November 1, 3894; Daily Oklahoma State Capital,
October 26, 1894; Atoka Citizen, November 22, 1894,

11. Indian Chieftain, February 28, 1895.

12. Indian Chieftain, November 15, 1894.

13. Eagle-Gazette, November 22, 1894.

14. Ibid., November 29, 1894; Albert Bigelow Paine, Captain Bill
McDonald, Texas Ranger: A Story of Frontier Reform, pp. 123-125;
Harman, op. cit., p. 648.

15. Daily Oklahoma State Capital, January 15, 1895; ibid., January
19, 1895; Indian Chieftain, January 17, 1895; Harman, op. cit., pp. 650-
652.

16. Daily Oklahoma, February 9 and March 29, 1895; Cherokee Advo-
cate, February 13, 1895; Indian Chieftain, February 14 and April 4, 1S95;
Indian Journal, April 5, 1895; Stansbery, op. cit,

17. Indian Chieftain, February 14, 1895.

18. Daily Oklahoman, March 29, 1895; Indian Chieftain, April 4, 1895;
Indian Journal, April 5, 1895.

19. Harman, op. cit., pp. 387-389; Eagle-Gazette, November 29, 1894;
Elevator, March 20, 1896; Glenn Shirley, Toughest of Them All, pp. 131-
134.

20. February 1, 1895.

21. Ibid.

22. Indian Journal, March 1, 1895; Cherokee Advocate, March 6, 1895;
Indian Chieftain, March 7, 1895; Goldsby v United States, 159 U.S. 70,

23. Harman, op. cit., p. 400.

24. Indian Chieftain, April 25, 1895.

Notes 317

25. Ibid., May 9, 1895.

26. 7Md., April 25, 1895.

27. Elevator, October 21, 1887; March 23, 1888; March 30, 1888;
August 3, 1888; August 24, 1888; July 25, 1890.

28. Indian Journal, December 5, 1889.

29. Cherokee Bill was the tool to be used in overcoming the guards.
The other members of the plot indicted by the grand jury investigating
the case were Frank, Ed, and Lou Shelly, George and John Pearce, and
Lou Shelly 's wife. The Shellys were sent to prison on other charges; the
Pearce brothers hanged with Webber Isaacs, April 30, 1896; Andy Critten-
den, an important witness, went to the penitentiary; and Mrs. Shelly was
released on bond. Finally the government abandoned the case. Indian
Chieftain, July IS, 1895; September 5, 1895; April 23, 1896.

30. "This 'gobble' was first brought to the attention of Judge Parker's
court and the people of Fort Smith when a white man, who was under
indictment for assault with intent to kill, was asked why he wished to kill
the prosecuting witness, who was an Indian. The prisoner replied that he
did not wish to kill, only wanted to disable him, so shot him in the right
arm. The court, curious to know the object of the assault, questioned more
closely, and was told that he shot because the Indian had 'gobbled at
him,' and that meant 'death/ hence when he shot it was self-defense. Judge
Parker took sudden interest in what he half suspected was a falsehood,
patched up for the occasion, and a dozen more witnesses were brought
in who proved conclusively that the Indian's 'gobble* meant sure death to
someone within hearing of the uncanny sound; that it was as much a
threat to kill as if spoke in so many words." From footnote, 406, Harman,
op. cit.

31. Ibid., pp. 407-408.

32. The foregoing details of the slaying of Keating and surrender of
Cherokee Bill are taken from accounts in the Indian Chieftain, August 1,
1895; Stillwater Gazette, August 1, 1895; Elevator, August 2, 1895; Okla-
homa City Times- Journal, August 2, 1895; and Harman, op. cit., pp. 404-
406.

33. Indian Chieftain, August 8, 1895.

34. For the foregoing account of the trial and sentence of Cherokee
Bill, I have relied on the following sources: Indian Chieftain, August 15
and August 29, 1895; Rogers (Arkansas) Democrat, August 10, 1895;
Elevator, August 16, 1895; Harman, op. cit,, pp, 418-430; Goldsby v
United States, 163 U.S. 688, 16 Sup. Ct. Rep. 1201.

35. Oklahoma City Times-Journal, December 4, 1895; Indian Chieftain,
December 5, 1895; January 16, 1896; Elevator, March 20, 1896.

36. March 20, 1896.

37. 163 U.S. 688, 16 Sup. Ct Rep, 1201.

CHAPTER IX

1. Op. cit.

2. Atoka Independent, January 25, 1878.

318 NOTES

3. Ibid., March 15, 1878.

4. Indian Chieftain, October 26, 1883.

5. U.S. Statutes at Large, XXII, 383-390.

6. June S, 1884.

7. U.S. Statutes at Large, XXIII, 69-72.

8. Barman, op. cit., p. 50.

9. U.S. Statutes at Large, XXIII, 482.

10. Harman, op. cit., p. 50.

11. Attorney General Report, 1885, pp. 36-43.

12. Ibid., 18S9, p. 10.

13. Elevator, July 29, 1887.

Congress had done very little to assist the marshals in performing their
duties in the Indian country. Not until more than twoscore of these
officers had been killed did "congressional conscience" move this august
body to pass an act providing that any person "who shall, in any man-
ner, obstruct, by threats or violence," any agent or police or other officer
engaged in the service of the United States in the discharge of his lawful
duty within the Indian territory, or "who shall commit . , . murder, man-
slaughter, assault with intent to murder, assault, or assault and battery
. . . against any person who at the time, or at any time previous belonged
to either of the classes of officials noted, shall be subject to the laws of
the United States relating to such crimes, and ... to the same penalties
as all other persons in said cases." U.S. Statutes at Large, XV, 583, an act
approved June 9, 1888.

14. Reports from the Missouri Republican. (Indian Chieftain, October
26, 1883.)

15. Congressional Record, August 16, 1888; also H.R. Report 3613, 1888.

16. U.S. Statutes at Large, XXV, 655-666.

This act was given to the President for his signature January 25, 1889.
Not being returned within the time required under the Constitution, it
became a law, February 6, without his approval.

17. Harman, op. cit., pp. 158-159.

18. Alexander v United States, 138 U.S. 153, 11 Sup. Ct. Rep. 350;
Elevator, February 6, 1891.

19. Lewis v United States, 146 U.S. 370.

20. Elevator, June 1 and 8, 1891.

21. Hickory v United States, 151 U.S. 303.

22. Ibid.

23. Hickory v United States, 160 U.S. 408.

24. Ibid.

25. During the seven years from 1889 through November, 1896, & total
of fifty criminal appeals were taken to the Supreme Court. Forty-tight
were appeals from death sentences taken on writs of error and two were
appeals taken by demurrer. Of these forty-eight cases, which held the
fate of fifty-two men, thirty-seven were reversed. Before final disposition
was made of these thirty-seven, all had been arraigned and come to trial

Notes 319

twice, and four had been tried three times. Out of the original fifty-two
sentenced to death, only fifteen were executed. U.S. Reports, 138 to 165.)

CHAPTER X

1. Webber Isaacs, George Pearce, John Pearce. (See Appendix A, "Chro-
nology of Hangings.")

2. Indian Chieftain, September 26, 1895; Elevator, July 3, 1896.

3. Harman, op. cit., pp. 499-500.

4. Indian Chieftain, August 15, 1895; Daily Oklakoman, August 31,
1895.

5. Harman, op. cit., p. 503.

6. Ibid., pp. 505-511.

7. Ibid., p. 511.

8. Ibid.

9. Indian Chieftain, October 3, 1895; Elevator, July 3, 1896.

10. Buck et al. vs United States, 163 U.S. 678.

CHAPTER XI

1. Glenn Shirley, "He Outrobbed Them All," True West, December,
1955; Indian Chieftain, December 22, 1892; Harman, op. cit., p. 367;
Shawnee Herald, March, 1908.

2. Ibid.; Zoe A. Tilghman, Outlaw Days, p. 124.

3. Shawnee Herald, op. cit,

4. Indian Chieftain, December 15, 1892,

5. Ibid.

6. Harman, op. cit., p. 371.

7. Indian Chieftain, December 15, 1892.

8. Starr v United States, 153 U.S. 614, 14 Sup. Ct. 919.

9. Shawnee Herald, March 18, 1908.

10. Elevator, January 27, 1893.

11. Other members were Lin Cumplin, Happy Jack, Bud Tyler, and
Frank Cheney. Cumplin went to Alaska, where he attempted to hold up
an express messenger and was slain. Happy Jack was killed a few months
after the Bentonville robbery and Frank Cheney shot a year later by
marshals in the Indian Territory. Bud Tyler died in bed from his wounds
"with his boots off."

12. Elevator, July 7, 1893. (See also Indian Chieftain, July 6, 1893;
Harman, op. cit., pp. 365-366.)

13. Indian Chieftain, July 27, 1893.

14. Starr v. United States, 153 U.S. 614, 14 Sup. Ct 919.

15. Ibid.

16. Elevator, November 10, 1893.

17. Starr v United States, 1$3 U.S. 614, 14 Sup. Ct. 919.

18. Indian Chieftain, September 19, 1895.

19. Starr v United States, 164 U.S. 627, 17 Sup. Ct. 223.

20. Ibid,

320 NOTES

21. U.S. Reports, 138-165; especially Smith v United States, 151 U.S.
50, 14 Sup. Ct. 234; Alberty v United States, 162 U.S. 499, 16 Sup. Ct
864; Lucas v United States, 163 U.S. 612, 16 Sup. Ct. 1168; Indian CJtief-
tain, February 20, 1896.

22. Ibid. (U.S. Reports).

23. 150 U.S. 442, 14 Sup. Ct. 144,

24. 146 U.S. 370.

25. 162 U.S. 625, 16 Sup. Ct. 952.

26. Brown v United States, 164 U.S. 221, 17 Sup. Ct. 33.

27. 159 U.S. 489, 16 Sup. Ct. 51.

28. 232 U.S. 642.

29. In Oklahoma today flight is a circumstance tending to prove guilt,
and it has been so held in many cases. Quinn v. State, 55 Okia. Cri. 116,
25 P. 2d 711; Pittman v State, 8 Okla. Cri. 58, 126 F. 696; Wcttengcl v
State, 30 Okla. Cri. 388, 236 P. 626.

30. Harry P. Daily, op. tit.

31. William F. Semple, "Isaac C. Parker, Jud^e of the United States
Court," The Journal, Oklahoma Bar Association, August 25, 1951,

32. In March, 1898, Henry Starr pleaded guilty to manslaughter and
was sentenced to five years in prison at Columbus. Pending his third trial,
he was also convicted of three robberies, receiving an additional ten years.
Through the influence of his mother, and on his promise to reform, he was
pardoned by President Theodore Roosevelt. He married, entered the real
estate business in Tulsa, and prospered five years. On the morning of
March 27, 1915, he led a gang of men he had recruited in an attempt to
rob two banks at Stroud, Oklahoma. The gang was routed and later cap-
tured, and Starr himself badly wounded and captured by a fourteen-year-
old youth, Paul Curry. Starr pleaded guilty and was sentenced to the
Oklahoma State Penitentiary for twenty-five years. He was paroled again
in 1919 and managed to keep at liberty until 1921. On February 22 he
was shot and killed while robbing the People's National Bank in the little
Ozark village of Harrison, Arkansas. Daily Qklahoman, March 29-31,
1915; Ibid., February 23, 1921; Records of the Oklahoma State Peniten-
tiary, McAlester, Oklahoma; also Harman, op. tit., p. 365; Tiighman,
op. cit., pp. 126-127.

33. Elevator, February 21, 1896.

34. Ibid., May S, 1896.

35. Davenport v United States, 163 U.S. 682, 16 Sup. Ct. 1200: Luckey
v United States, 163 U.S. 692, 16 Sup. Ct. 1203; Thornton v United States,
163 U.S. 707, 16 Sup. Ct. 1207; King et al. t; United States, 164 U.S. 701,
17 Sup. Ct. 995; Dyer v United States, 164 U.S. 704, 17 Sup. Ct. 993.

36. One old man followed the murderer of his son for months from
the Indian Territory to the Rocky Mountains; and when he finally
overtook the killer, he arrested him, securely fastened him to his own
body with rivets and chains, and brought him back to Judge Parker's
court, where he listened to the trial and witnessed the execution.

Notes 321

37. In March, 1896, the women of northern Texas sent a signed petition
to President Cleveland, Secretary Hoke Smith, and Congress, calling at-
tention to robberies and crimes committed by outlaws from the Indian
territory.

38. Harman, op. cit., p. 60.

39. U.S. Statutes at Large, XXV, chap. 333, Sec. I.

40. Ibid,, XXVI, p. 720.

41. Ibid., XXVII, p. 12.

42. Harman, op. cit., p. 60,

43. U.S. Statutes at Large, XXVIII, 693.

By an act approved June 7, 1897, Indian courts were abolished, and
after January 1, 189S, the United States courts in the Indian Territory
had original, exclusive jurisdiction over all civil and criminal cases and
all persons irrespective of race. U.S. Statutes at Large, XXX, 83.)

44. See Appendix D, "The Famous Grand Jury Charge."

45. Elevator, May 8, 1896.

46. Ibid,, February 8, 1895.

CHAPTER XII

1. Wilson v United States, 162 U.S. 613, 16 Sup. Ct. 895; Elevator,
December 20, 1895; ibid., July 31, 1896,

2. Records of the United States District Court for the Western District
of Arkansas, 1875-1896.

3. Harry P. Daily, op. cit.

4. "A Word for Judge Parker," Elevator, May 29, 1896.

5. Ibid., March 2, 1894.

6. Ibid., May 29, 1896.

7. Helen Hunt Jackson, A Century of Dishonor, p. 30.

8. Harry P. Daily, op. cit.

9. Elevator, September 18, 1896; Jackson, op. cit., p. 296,

10. Attorney General Report, 1893, pp. 20-21.

11. Eagle-Gazette, November 28, 1894.

12. Oklahoma Star, November 2, 1876; At oka Independent, January
25, 1878.

13. Elevator, May 11, 1894.

14. Parker's family Bible (in possession of Mrs. Kate Bailey Parker,
Fort Smith, Arkansas)*

15. Harman, op. cit., pp. 100-101,

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