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passed in the same way by sale to interests that controlled the road.
On December 4, 1868, construction was approved and on the same
date title to 104,632.64 acres was conveyed by the state to Dudley
M. Steele, president of the company, for a consideration of $1.25
an acre. 25

After Joy got control of the Kansas & Neosho Valley, he purchased
from the state the unsold lands apportioned to his company. On
December 13, 1868, construction was certified and on December
26 he bought 89,690.83 acres at $1.25 an acre. 26

Lands allotted to the Union Pacific, Southern branch, the fourth
beneficiary, likewise passed largely to interests close to the man-
agement of the line and were eventually conveyed to the railroad
itself. This was the last of the four roads to complete construction
of the required ten miles of line. Certification was entered on
October 1, 1869, and on December 16 the state sold 89,095.85 acres
to the Land Grant Railway & Trust Co. 27 These lands were later
conveyed, without substantial consideration, to the Missouri, Kansas

22. S. J. Crawford to P. B. Maxson, May 25, 1867. "Governor Crawford's Letter Copy
Book," p. 50, Archives division, Kansas State Historical Society.

23. State to Peck, patent deed. "Allen County Deed Record," v. F, pp. 354, 362.

24. Peck to L. L. & G. R. R. Ibid, p. 367.

25. "Patent Book, Internal Improvements Lands." Office of state auditor, Topeka.

26. Ibid.

27. Ibid.


& Texas railroad, successor to the Union Pacific, Southern branch. 28
The Land Grant Co. held the contract for the construction of the
M. K. T. Both the Land Grant Co. and the railroad were controlled
by Levi Parsons. 29

Alone among the sales to the beneficiary railroads of the land
apportioned to them, the M. K. T. transaction was made at prices
above the minimum. It will be recalled that only this road had
made an appraisal of its allotment, and it was at the appraised value
that the land was sold. Prices ranged from $2.25 to $6.50 an acre,
with a mean of $4.50. This transaction represents about 17.5% of
all the internal improvements lands. It thus affords some clue
to the extent of the state's bounty and some index of fair prices
for land in comparison with the federal government's politically-
determined price of $1.25 for its public lands. If all of the internal
improvements land was equally valuable, the total value of the
500,000 acres was $2,250,000. It is possible, however, that the lands
of the Union Pacific, Southern branch, that had already been sold
were less valuable than those bought in by the Land Grant Railway
& Trust Co. Assuming that this was the case and that the average
value of all the 500,000 acres was only $4.00 per acre, it follows that
each of the four railroads was given by the state a bounty of half a
million dollars, or fifty thousand dollars for each mile of construction.
The approximate cost of good construction at this time was about
$25,000 per mile. The original 241 miles of the Burlington system
in Nebraska cost $27,291 per mile, including interest payments dur-
ing construction. 30 The original estimate for construction of the
Santa Fe from Atchison to Topeka was $13,690 a mile. 31

The purchases by which the four beneficiary railroads acquired
the unsold lands allotted to them exhausted the supply of internal
improvements land. A small balance of the whole grant of 500,000
acres had not then been received. On April 19, 1870, the federal
government conveyed to the state the 4,600 acres still due. 32 Mobley,
the state agent who had succeeded Veale, did not at once commence
sale of these lands. When, on February 13, 1872, he assembled
state officials and representatives of the beneficiary railroads to ap-
portion the supplementary grant, the state attorney general, A. L.
Williams, petitioned the district court of Shawnee county for an
injunction restraining sale or payment of the proceeds to the rail-

28. Interstate Commerce Commission, "Valuation Docket No. 828," pt. 1, p. 9.

29. Missouri, Kansas & Texas R. R., First Annual Report, p. 13.

30. Richard C. Overton, Burlington West (Cambridge, 1941), p. 282.

31. L. L. Waters, Steel Trails to Santa Fe (Lawrence, 1950), p. 33.

32. These lands all lay in Ranges 8 and 10, West, and had been selected by Mobley.
Supplementary list 14, approved and certified by the U. S. General Land Office, 1870, in
office of the state auditor, Topeka.


roads. Mobley did not appear in court to oppose the application
and the four railroads filed disclaimers to any interest in the land
or in the proceeds of its sale. The injunction was therefore issued
and on August 9, 1873, was made perpetual. 33

The injunction outlawed any disposal of the lands by prohibiting
sale for the only purpose provided by state law. Until the legislature
made some new provision the remaining lands would be available
only to trespassers. In 1876 Governor Osborn stated that he had
been contemplating a recommendation that the legislature authorize
sale of the lands and diversion of the proceeds to the state university,
but that he had been dissuaded by uncertainties arising from con-
fusion in the sales records. 34 It was at this stage that Atty. Gen.
A. M. F. Randolph issued a ruling confirming that issued in 1866 by
his predecessor, Brumbaugh. Randolph reiterated that congress
had never accepted the provision of the Wyandotte constitution
diverting the lands to the benefit of education from the purpose
prescribed by the federal law of 1841. 35

It appears that no effort was made until 1885 to provide by law
for the disposal of the lands conveyed to the state in 1870. The
state meanwhile collected small balances due on sales made earlier
on the original conveyance of 495,000 acres. By 1885 there was a
little over $8,000 cash and the 4,600 acres still in the state's railroad
account. In that year the legislature, uninhibited by the rulings
of two attorneys general, passed a law authorizing sale of the land
for the benefit of the permanent school fund and transfer of the
cash balance to the same account. 36

In retrospect it would seem that the state legislative policy was
unwise and that the state administration was irresponsible and in-
efficient in the disposal of the internal improvements grant. The
legislature offered unusually generous bounties for the construction
of as little as ten miles of trunk line. If trunk lines were wanted,
greater mileage should have been required. If the legislative
policy of having the state sell the lands was intended to prevent
withholding of the lands from settlement, it failed. The railroads
bought in 80% of the land and then were free to withhold it for
optimum market conditions. As to the act of 1885 diverting the
small final balances of land and cash to the school fund, it was clearly
a violation of the mandate of congress.

33. Letter from the attorney general to the legislature, January 26, 1874. Kansas
Senate Journal, 1874, pp. 127-129.

34. Message of the governor, Kansas House Journal, 1876, p. 40.

35. Opinion of the Attorney-General Concerning the 500,000 Acres of Internal Im-
provement Lands, dated Topeka, February 2, 1876.

36. Laws of Kansas, 1885, ch. 182. This statute listed the unsold parcels. The
statutory listing was repealed by ch. 220 of the Laws of 1887, which gave a slightly different

Judge Lecompte and the "Sack of Lawrence,"
May 21, 1856


IN part one, "The Contemporary Phase/' of this study, Judge
Samuel D. Lecompte's defense of his judicial career rested pri-
marily upon his four letters to Rep. James A. Stewart, to Sen.
James A. Pearce, to Gov. John W. Geary, and to Caleb Gushing.
He was not permitted a hearing upon any of the charges where
prime documentary records cOuld be presented or witnesses intro-
duced and cross-examined.

Thus matters were left, so far as Lecompte was concerned, until
1873, when old wounds were reopened. This seems all the more
remarkable, because Lecompte had maintained his residence in or
near Leavenworth, had remained loyal to the Union, and after the
Civil War had served as a Democrat in the state legislature in 1867
and 1868, after which he became a Republican during the campaign
of 1868, and in 1874 was chosen chairman of the Republican con-
gressional committee.

Upon the last mentioned occasion, and without any reference to
the impending explosion, Sol Miller, editor of the Troy Kansas
Chief, June 25, 1874, printed this paragraph:

If there still be persons who think that the world does not move, we refer
them to the name of S. D. Lecompte, attached to the call for a Republican
District Convention to nominate a Congressman for this District, and remind
them that this is the same Judge Lecompte for whom Lecompton was named,
and the very mention of whose name, less than twenty years ago, caused a
shudder everywhere in the Free States. He is one of the pleasantest looking
old gentlemen imaginable. It may serve to strengthen their faith in progress,
to know that Gen. Stringfellow is a member in good standing of the Republican

One of the remarkable aspects of the post-Civil War period re-
markable if one takes seriously the "depravity" charged against the
Proslavery "villains" of the territorial melodrama is that once the
slavery question was eliminated, former Proslavery people, includ-
ing the more prominent leaders, lived as integral components of
their communities, commanding the respect each deserved as an
individual, unless, perchance, old controversies were revived. In

DR. JAMES C. MALIN, associate editor of The Kansas Historical Quarterly, is professor
of history at the University of Kansas, Lawrence.



that case Free-State people, with few exceptions, demanded a com-
plete monopoly upon interpretation of the past.

The answer to the question of the reopening of the old wounds
in the case of Lecompte is to be found in a complex situation,
climaxing in 1873-1874, in a criminal libel suit, State of Kansas vs.
Daniel R. Anthony, with Lecompte as the complaining witness.

The situation providing the immediate setting for the libel suit
involved four episodes, more or less related: a controversy over
enforcement of internal revenue laws; Cole McCrea's charges against
Lecompte arising out of the territorial troubles; Lecompte's article
on the advisability of limiting the President to one term; and
Lecompte's relations with the Grange and farmers' discontent of


The tax on liquor was inaugurated during the Civil War as an
internal revenue tax to aid in financing the war. It was one of the
few internal taxes retained by the national government after the
war, and was the object of a bitter and relentless campaign for
repeal. In fact, there were many resemblances between this cam-
paign and the antiprohibition campaign of the 1920's against the
Eighteenth amendment. Corruption in administration led to the
Whisky Ring scandals in 1875, which compromised even President
Grant. The federal enforcement in Kansas was in the hands of
George T. Anthony, a cousin of D. R. Anthony, and a political op-
ponent within the Republican party. Lecompte was United States
commissioner in Kansas and preliminary hearings for offenders
prosecuted under federal law came before him to determine whether
evidence seemed to justify binding them over for action by the grand
jury at the next term of the United States court.

The case of Charles Dietrich, for rectifying liquor without a li-
cense, was heard in August, 1873, and he was bound over on $2,000
bond for trial at the next term of the circuit court. In the Leaven-
worth Daily Times, August 8, 1873, Col. D. R. Anthony denounced
the prosecution of Dietrich on the ground that there was no desire
to enforce the law, only to harass small offenders while the big vio-
lators, under a system of protection, became rich. Furthermore, in
attacking the commissioner personally, Anthony charged that: "Le-
compte true to his instincts and the tyranical reputation he bears
for crimes committed in the dark days of 1854 5 6 and '57, bound his
victim over in accordance with the instructions he received, from
the man he now acknowledges his master/' Instead of being re-


quired to appear in the United States district court in Leavenworth,
Dietrich was required to appear before the United States circuit
court in Topeka. 1 Neither the guilt of Dietrich's action nor the cor-
rectness of Lecompte's official action are critical to the present
story, but the language quoted above in characterization of Le-
compte, became one of the counts in the libel action. The Dietrich
case provided only the occasion for its use.


The revival of the controversy over Lecompte and the murder of
Malcolm Clark by Cole McCrea, April 30, 1855, came about through
a series of "Early Kansas" articles prepared by H. Miles Moore and
published over a period of approximately a year, February, 1873, to
January, 1874, in the Leavenworth Daily Commercial. Moore was
a New Yorker, living in Weston, Mo., 1851-1855, a Whig in politics,
and a member of the Leavenworth town company. He had acted
with the Proslavery element, voting in Kansas on election days prior
to his definite residence in Leavenworth which began in September,

1855. He had joined the Free-State party soon thereafter and was
nominated attorney general, December 22, and elected January 15,

1856, under the Topeka constitution. Thus, at the time of the Clark-
McCrea affair he was still a Weston resident, although a member
of the Delaware Trust Land Squatters' Association because of a
claim held in Kansas.

The murder of Clark had occurred during a Delaware Trust Land
Squatters' meeting. As Moore related the incident, McCrea was
not eligible to participate because he was settled on Kickapoo lands.
Clark had served as marshal in the Delaware association and when
McCrea interrupted after warning that he was not eligible to partici-
pate, an altercation ensued in which Clark was in the act of attacking
McCrea when the latter shot and killed him. McCrea attempted
to escape, was seized by the crowd and with difficulty taken to the
guardhouse at Fort Leavenworth to save him from mob violence.
After several months, McCrea escaped, but after a few years returned
and was then living at Leavenworth. 2

In the "Early Kansas" article of the week following the printing
of the above account, Moore added further comments including the
Leavenworth Herald May 11, 1855, account of an indignation meet-
ing and incendiary resolutions of May 3, 1855, of sympathy for
Clark and denunciatory of McCrea. In reprinting this material,

1. Leavenworth Daily Commercial, August 8, 1873; Leavenworth Daily Times, August
8, 1873. Another "vinegar works" liquor case was reported in the Times, August 26.

2. Leavenworth Daily Commercial, July 13, 1873.


however, Moore omitted names of living persons, particularly the
references to Lecompte. The latter wrote Moore a letter, dated
July 21, thanking him for his kindness, but taking the occasion to
explain the errors in the old Herald story. This was substantially a
restatement of his Stewart letter on the same points, relating how
his role in that meeting had been misrepresented, and that, in fact,
he had intervened to save McCrea, and he still thought he had done
so. That story may be summarized, briefly. Judge Lecompte, who
was then living at Shawnee Mission, was notified of a meeting to be
held in Leavenworth the next day to decide upon action. On a
half-hour's notice, Lecompte insisted, he caught the stage to the
fort, and in the city intervened to persuade leaders to submit to legal
processes. To that end, he thought that he had succeeded. He
addressed the meeting and left thinking the crisis was over. Only
afterward had he discovered what the meeting had done following
his departure in adopting the resolutions in question, and the
Herald's misrepresentation of his address to the meeting as an en-
dorsement. 3

Too late, Lecompte realized the mistake he had made in not
entering into the contemporary record an immediate denial of the
Herald story, his letter to Moore stating the circumstances at any
rate the circumstances as he saw them in 1873:

I intended to write the proper explanation for the next issue, but unhappily
for a proper vindication of myself, I failed to think of the future and consider-
ing that the knowledge of those present would correct the falsity of the posi-
tion assigned me, let pass the opportunity of correction, and they [thus] left,
[as] a permanent record, a report of the proceedings, such as it is.

McCrea took strong exceptions to Moore's version of the affair
and prepared an extended reply, published in the Leavenworth
Daily Times, August 5, 10, 19, 24, 31, 1873. In printing McCrea's
"Card," D. R. Anthony stated, August 5, that "We have no interest
in the controversy, but, as Mr. McCrea thinks he has been grossly
wronged and outraged by Mr. Moore, we give admission to his
card of defense." McCrea referred to Moore as "a paid wretch in
the employ of a newspaper claiming to be Republican," and to his
history as "vulgar twaddle." In the second article McCrea com-
pared Moore to a "snarling cur," and made even a more offensive
comparison, but as the article deals primarily with Lecompte, the
details of the Moore controversy are omitted here. 4

McCrea pled self defense in justification of his shooting of Clark,

3. Ibid., July 20, 27, 1873.

4. Leavenworth Daily Times, August 5, 10, 1873. The story of Moore and McCrea has
been told elsewhere by the present author, under the title "From Missouri to Kansas; The
Case of H. Miles Moore, 1852-1855."


and in defending his claim of right to participate in the squatters'
meeting of April 30, 1855, enumerated five points: the exercise of
jurisdiction by the Delaware association in Kickapoo country; the
resurvey of the Delaware-Kickapoo boundary which placed Mc-
Crea's claim on Delaware land; retainer by William Braham, as his
legal counsel; engagement by the real settlers, regardless of Pro-
slavery or Free-State sentiment as their agent; election as Sachem
of a secret Free-State society. McCrea's narrative was so confused
in places as to render much of it incoherent, and therefore it is
impossible to be certain upon what ground McCrea claimed his
right to participate in the squatters' meeting as of April 30 in con-
trast with his claim of right as of August, 1873. In his "Early
Kansas" articles, Moore had not recognized any aspect of such a
claim of right by McCrea. On McCrea's side, he accused Moore
of heading a mob to deliver McCrea from the guardhouse at Fort
Leavenworth into the hands of the mob to hang him. Moore's
"Journal," however, proves McCrea's accusation false. 5

McCrea's grievance against Lecompte is the major focus of the
present story. In connection with the charge against Moore of
heading a mob to hang him, McCrea charged that Moore and Dr.
Bailis appeared at the Fort with a writ of habeas corpus, pur-
portedly sued out by McCrea, before Judge Lecompte "the affi-
davit bearing the certificate of that most servile of ruffian tools.
. . ." He accused Lecompte further of trying to force an indict-
ment of McCrea from the grand jury in September, 1855, which
was refused. Again in an adjourned session of the court, McCrea
asserted that Lecompte secured a more pliable grand jury. Further-
more, he told a confused story of securing a change of venue under
threats against Judge Lecompte.

Another offensive reference to Lecompte was made by McCrea
in connection with his charge about Lecompte's relation to the
Howard committee which investigated the Kansas troubles in 1856:
Now one more incident in the judicial life of this unjust and imbecile Judge,
. . . the office-seeking Republican, and I have done with him. I now
refer to his raising his hand against the very government of the nation when
the wretch undertook to keep our country from knowing our wrongs. 6

McCrea was not "done with him," however, but, in the next in-
stallment of his reply to Moore, discussed the murder of William

5. Leavenworth Daily Times, August 10, 24, 1873; H. Miles Moore "Journal," entries
for April 29, 30, May 1, 2, 3, 1855, account for Moore's activities. He was ill May 1, 2, 3,
and confined to his bed, or to his room, most of the time. The Moore "Journal" is in the
Coe collection, Yale University Library, and is used here with the written permission of the
Yale University Library, dated February 26, 1953.

6. Leavenworth Daily Times, August 24, 1873.


Phillips, by a mob, and the murder of Hoppe by Fugit, charging
that die latter was acquitted by Lecompte:

The judge is living in well-merited contempt about a mile south of the city.
. . . Not one of the mob [that killed Phillips] was ever brought before a
grand jury by that most infamous of judges S. D. Lecompte. But the strangest
part is, that this judge, the most foul of proslavery lickspitles, expects to re-
ceive a reward from the Republicans. ... He [Phillips] was finally mur-
dered on the 1st of September, 1856, while his gentle wife was an inmate of
a lunatic asylum from the effects of frights received in Kansas from ruffians
under the encouragement and approval of Judge Lecompte. Is it not cruel to
keep that devil in expectancy of office so long? Oh, God! did ever the judicial
ermine rest on so foul a back! 7

The only reaction of Moore to the McCrea articles was an entry
in his journal, August 31, 1873: "McCrea has one in the Times a
rich batch of lies and nonsense." It would seem that, on the basis
of the articles, Moore had as good a case as Lecompte against
McCrea and Anthony for libel.


The third episode that contributed to the Lecompte-Anthony libel
suit arose out of an article written by Lecompte and printed in The
Kansas Magazine, September, 1873, "Presidential Terms of Office."
Lecompte argued for the right of the people to elect a man for as
many terms as they thought fit. The judge pointed out that the issue
was usually raised in the midst of a campaign by the adherents of the
candidate to be benefited. But he insisted that there was a principle
involved that should be considered independently of any particular
candidate or party. The constitution placed no limits, and from
patriotic motives Washington had set a precedent of two terms, but
nearly a century had passed during which the republican principle
of government had become well established in the United States,
and had become widely recognized in the Old World. All argu-
ments against re-election without limits he reduced to two: "The
first, that of an adherence to an old practice because it was so; the
second, that of a doubt of our capacity to maintain the great funda-
mental principle, popular sovereignty."

Lecompte's argument for a change in the custom of the two-term
rule affords an admirable glimpse into the quality of the judge's
mind and personality: "The general adoption of this sentiment [the
two-term rule] would be the most complete quietus to progress that
could be conceived. It is utterly inconsistent with the idea of
human advancement, and can find no advocates amongst the be-

7. Ibid., August 31, 1873.


lievers in the yet untold wonders of human capability." Of course,
there was a fly in the ointment. The New York Herald, a Democratic
organ, had already come out against a third term for Grant. Al-
though Lecompte denied any interest in Grant for a third term, yet
he suggested that if Grant's future conduct did not forfeit public
confidence, and on the contrary, further enhanced it by 1876, the two
objections named should not stand in the way of a third term.

The Topeka Telegraph commented favorably on Lecompte's arti-
cle, but in his Times, August 29, 1873, D. R. Anthony used this notice
as the text for a scathing editorial:

During the old border ruffian troubles Judge Lecompte was the most
obsequeous of all the federal appointees in Kansas. He prostituted the judicial
ermine to do the dirtiest work of the slave power. He went to such extremes
that his name became infamous and is to-day execrated by the friends of
humanity throughout the country. In later years the Democracy failed to

Online LibraryKansas State Historical SocietyThe Kansas historical quarterly (Volume 20) → online text (page 64 of 76)