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charges made by Mr. Anthony." Although the sentence had not yet
been pronounced, the Tribune commented on Anthony's defiance,
that the Times printed:

articles even more savage than those which produced the suit for libel. Mr.
Anthony has one advantage upon his side, namely, the sympathy of the com-
munity, and also of a majority of the people of the State, who have not forgotten
the position Judge Lecompte occupied towards free Kansas in the years of her
history from 1854 to 1857. His Republicanism is hardly of sufficient age to
wipe out those memories.

Although gratified by the Tribune's view of the case on most
points, Anthony objected sharply to the allegation of personal enmity
between himself and Lecompte and about the latter being the leader
of a Republican party faction:

We simply took exceptions to a man of Lecompte's record thrusting un-
popular ideas upon the Republican party, and also thought that he was too
ready to bind over for trial parties charged only with the trivial, technical vio-
lation of the Revenue laws, . . . and where it is evident that arrests were
made to give officials their fees.

The Times claimed credit for breaking up that sort of persecu-
tion, and for contributing to the breakup of the bankrupt court ring.
To illustrate the contention that there was no personal ill-feeling,
Anthony reminded his readers that he had employed Lecompte in
the Haldeman case, and paid him $150 although he had contributed
nothing to the case.

All this had transpired prior to the session of the criminal court
at which Judge Sherry, on December 18, pronounced sentence. The
following day, still unrepentant, Anthony declared: "The English
language cannot describe a more infamous character than that
which reputation, history, and public opinion accord Lecompte.

THE TIMES will continue to be the advocate of right and justice.

By that time the state was being heard from, and on the same day,
the Times began publishing a column of commentary from Kansas
newspapers, all favorable to Anthony. The Olathe News Letter
reported rumor that Lecompte's "speech and not the evidence se-
cured the verdict." The Louisville Reporter concluded: "It would
tax our ingenuity too much to guess what the TIMES could have said
about the old border ruffian to libel him, unless it accused him of
having been a decent and honest man in those times." Sol Miller's
Kansas Chief attributed the verdict to bitter enemies and the sheriff


stacking the cards. The Oskaloosa Independent likewise pre-
sumed that the verdict reflected "the outgrowth of ill-will toward
Anthony rather than a vindication of Lecompte, and in any event
is a huge burlesque upon justice and the facts of history." The
Leavenworth Herald, after expressing itself rather freely, pretended
fear of a libel suit, and so closed its comments. The Times, Decem-
ber 20, published a second series of comments, these from the
Ottawa Journal, the Solomon Gazette, the Garnett Plaindealer, the
lola Register, and the Wyandotte Gazette. The Gazette was sure
the verdict was "all wrong, and the jury must have been idiots 1 /
Along with this installment was another chapter of Kansas history
chosen from W. O. Blake's, The History of Slavery and the Slave
Trade (Columbus, Ohio, 1863), pp. 752-754. On December 22,
the special year's-end edition, came still another chapter in Kansas
history, this time from Gihon's Geary and Kansas, including the al-
leged Lecompte charge of the grand jury on constructive treason.
Along with it was reprinted the first and second series of Kansas
press notices.

Over Christmas, Lecompte was given a short rest, but December
27 brought a third series of press notices, with an introduction as-
serting that "every paper, Democratic and Republican, which has
thus far expressed an opinion, is on the side of the liberty of the
press, and most emphatically against Lecompte, the jury and the
judge" only persons exposed for shortcomings, or corruption, or
with guilty consciences sustained Lecompte. Several opinions of
unusual violence appeared in this column: the Doniphan County
Republican, Troy: "decided by a jury of nincompoops or partisans
in favor of Lecompte"; the Holton Express: "The mystery to us is
how a jury outside the infernal regions, . . . could bring in a
verdict against the Colonel . . ."; the Howard County Ledger,
Elk Falls, declared that Lecompte "was an old political harlot";
and the Woodson County Post, Neosho Falls: "We should judge
from the published evidence that it would be hard to tell a lie on
old Lecompte without accusing him of possessing some of the at-
tributes of a gentleman of honor."

Not all, however, were so violent. The Topeka Times thought
that "Judge Lecompte will in the end lose more than he will gain.
. . ." The Manhattan Nationalist conceded that "Lecompte may
be a good man now, but he was unquestionably an infernal scoun-
drel in the old days that tried men's souls." After its first sharp
reaction, the Oskaloosa Independent reported "There is quite a
general sentiment in Leavenworth city that the verdict . . . was


just/' but the editor differentiated, that if considered a vindication of
Lecompte, that opinion was wrong, although if considered as an
expression that Anthony's attack was uncalled for and out of place,
on that point there was room for honest difference of opinion.
Another Independent (n. p.) asserted categorically that: "We think
the editor of the Times ought to let Lecompte alone. If he has re-
pented of his wrong doing, let him die in peace and obscurity." To
this Anthony replied: "The joke is, the old Border Ruffian judge
now claims to have done more than any other man towards making
Kansas a free State."

When the Leavenworth Times came out in a new format in
January, 1875, the Solomon City Gazette congratulated Anthony
on his achievement, in spite of the libel suit brought "by the
notorious Lecompte, of border ruffian fame. . . ." The Ells-
worth Reporter also extended its congratulations, and suggested
that if such a new dress was in consequence of being convicted of
libel, there were other Kansas newspapers that ought to be con-
victed. But Anthony was particularly pleased by the editorial of
the Hiawatha Advocate, "an out and out partisan sheet, that honestly
endorses every act of the White Leaguers/' and one which should
be read "by Lecompte, judge and jury." Extracts from this editorial

the verdict is one which is calculated to act as an injunction on the liberties of
the press, everywhere, we are provoked to say that, in our estimation, a more
flagrant, unjust and henious verdict has never been returned to any court in
Kansas. ... If Anthony was guilty in this case, then the whole editorial
fraternity, from California to Maine, is guilty, and may be successfully prose-
cuted. It has ever been a wonderment to us that a man whose history is
black with all manner of crimes, who, in the darkest days of Border Ruffianism,
was the cheapest deputy of the hell-born embassy that sought to establish human
slavery on our free soil, should be made the Chairman of the Congressional
Committee of the State. 14

Soon the Commercial found itself the defendant in a libel suit.
Anthony had no love for D. W. Houston, and recalled that the Com-
mercial had "gloried in the fact that old Lecompte sued and got a
verdict," yet he believed that the case "ought to be uncermoniously
kicked out of court. . . ." 15 In the legislature a bill was pending
to abolish the criminal court in Leavenworth county and merge it
with the district court as in Atchison, Douglas, Shawnee, and other
counties. Anthony joined in the campaign. But the Commercial
pointed out that in the legislature of 1874, as a member of that body,
Anthony had opposed such a bill. Why had he changed sides?

14. Leavenworth Daily Times, January 17, 21, 1875.

15. Ibid., February 7, 1875.


"It is to gratify his vengeance on some one he hates; and to pander
to his inordinate selfishness . . . because Col. Anthony has
been tried and found guilty in Judge Sherry's Court . . . this
court must be abolished." 1G

But it is time to get back to first principles. Because of the im-
portance of the parties and issues in the Lecompte- Anthony libel suit,
Judge Sherry had prepared, and the Commercial published in full,
the judge's charge to the jury and the instructions nearly three
columns in six-point type. There seem to be two good reasons for
quoting at some length Judge Sherry's exposition of the nature of
proof: 1. because of the importance of the principles stated there
as bearing upon the whole controversy that has been reviewed; 2.
because of the legend that has been built up by subjective-relativists
in the 20th century about the rigidity and absolutism of the law as
administered in 19th century jurisprudence.

Judge Sherry explained the difference between criminal and civil
law with respect to proof. In criminal cases the accused was as-
sumed to be innocent until proved guilty:

In civil cases the rule is different, for there the jury weighs the evidence and
when it is sufficient they decide according to the weight or preponderance,
though a reasonable doubt may exist as to the correctness of the decision; but
in criminal cases the jury must be satisfied beyond a reasonable doubt. A
reasonable doubt, then, is one which in the mind of a reasonable man, after
giving a due consideration to all the evidence, and such as leaves the mind to a
condition in which it is not honestly satisfied, and not convinced to a certainty,
of the guilt of the accused. A reasonable doubt is an honest uncertainty
existing in the mind of an honest, impartial, reasonable man, after a full and
careful consideration of all the facts, with a desire to ascertain the truth, re-
gardless of consequences, and it is to be distinguished from a captious or
capricious doubt, or a mere possible or arbitrary doubt.

If a jury should be fully and clearly convinced of the guilt of the defendant
in a case where the evidence established it beyond a reasonable doubt, and
then acquit a defendant upon an imaginary or speculative doubt, they would
be guilty of perjury for an imaginary or speculative doubt, as contemplated by
law, is not to be considered by the jury, for the law does not require that the
proof should satisfy the jury beyond all possible doubt, but only beyond a reason-
able doubt, and while it is true that the law deems it better that many guilty
persons should escape and go unpunished for the want of adequate proof of guilt,
rather than that an innocent person should suffer and be convicted upon insuffi-
cient evidence, yet absolute and positive certainty is not required in any cases.
Possible and contingent doubt hangs over all human affairs, while absolute, un-
qualified certainty is rarely obtained. I therefore admonish you to give the de-
fendant the benefit of every reasonable doubt, and would further say that if any
juror should entertain this reasonable doubt as already explained, it would be the
duty of such juror to withhold his assent to the rendition of a verdict of guilty.

16. Ibid., February 11, 1875; Commercial, February 13, 1875.


Before proceeding to the next step to be considered in the instruc-
tions, attention is called to the dictionary distinction between the
words "character" and "reputation." The character of a person
refers to the combination of qualities that are inherent in him, and in
his conduct, while his reputation is opinion about him held by others
regardless of whether or not it is true, or accords with his character.
Thus when the issue was joined on the question of the truth of the
charges as published, these differences in the meaning of words were
critical. Judge Sherry's language was not happily chosen, but his
meaning is not to be mistaken:

That evidence of reputation admitted by the Court to go to the jury, is to
be considered by them only in reference to such of the libelous matters in the
information as alleged by reputation, and is not to be considered by them as any
evidence in support of direct charges against the said Samuel D. Lecompte.

That the proof having been made by the State of the publication of the
libelous matter and the defepdant setting up truth thereof, in justification [,]
the burden of proving the truth is on the defendant, and also that it was
published with good motives and justifiable ends.

Anthony was in error when he contended that nothing could
change the verdict of history. He was confusing historical actuality
with written history. True, nothing could change events that had
already transpired historical actuality but written history was
subject to error, and in this case the error could be demonstrated,
and the record corrected. He was confused also on the usage and
meaning of the words character and reputation. Thus, the character
of a historical person is historical actuality, a past fact that cannot
be changed, while reputation is a judgment of others about character
( actuality ) and reputation may be modified. When extensive writ-
ten records of the transactions of history are available, historians
can usually reconstruct historical actuality with such a degree of
certainty and fidelity as to revise substantially the errors of first ver-
sions of written history, or in the case in point, the reputations at-
tributed by contemporaries to the characters of historic persons.

This difference between character and reputation was far more
important to Anthony himself than he appears to have realized.
Anthony himself was a positive personality, who had made many
bitter enemies. If his contention was correct about reputation and
written history, then he himself would suffer at their hands, be-
cause his own reputation was not above reproach. Thus fortunately
for both Anthony and Lecompte, the historical actuality as repre-
sented in their characters was not as bad as contemporary written


history and reputations would have posterity believe. Indeed, sel-
dom are the facts as bad as the evil report spread about them.


Sol Miller was one of the outstanding men of Kansas journalism.
He founded the White Cloud Kansas Chief in 1857, moved it to
Troy, July 4, 1872, and published it until his death. A loyal Repub-
lican always, yet Miller was independent, fearless, and blunt, wield-
ing power because he was respected even by those who opposed and
hated him. He played the game of politics and of journalism ac-
cording to the prevailing rules, and with ability. Sometimes Miller
wrote significantly and at a high ethical level; at other times he wrote
in bad taste; and sometimes he was obscene. Without regard to
the prestige and power of any man, if Miller disagreed, he spoke his
piece and to the point. Certainly he did not stand in awe of
Anthony. His relations with Anthony may be documented by two
illustrative paragraphs in the Chief for June 26, 1873:

D. R. Anthony was thrashed, last week, in the streets of Leavenworth, by a
book agent. As there is no ordinance in Leavenworth against kicking a dirty
dog in the streets, even though he be Mayor of the city, the man was not

And again:

One thing that we admire in D. R. Anthony is, that he never goes back on
a friend. His best friend is the Devil, the father of lies; and Anthony never
goes back on a lie.

With that gentle prelude, as the stage setting, Miller's reactions
to the Lecompte-Anthony libel suit may be reviewed without any
illusions :

Our love for Anthony is not like unto the love of Jonathan for David; but these
libel suits against newspapers are hard tuggings at a teat, and precious little
milk. We thought Judge Lecompte was too smart for that. 17

When the verdict was returned in December, 1874, Miller ob-
served that:

Considering that Anthony has many bitter enemies, and that the Sheriff who
had the picking up of jurymen hates him as hard as Lecompte does, the cards
were decidedly against him. We sympathize with him the County does not
pay the costs of the trial. 18

The following week, however, Miller had pondered the issues
involved and delivered a challenging sermon on public ethics under
the text: "Shall a Man Never be Forgiven?"

17. The Weekly Kansas Chief, Troy, January 1, 1874.

18. Ibid., December 17, 1874.


Perhaps in strict justice, D. R. Anthony should not have been convicted of
libel for saying what he did about Judge Lecompte; but in reading his denuncia-
tions of the Judge, and his copious extracts from history to back them, the
question arises, shall a man never be forgiven, if he once takes a wrong position,
and does bad acts?

Nobody presumes to say that Judge Lecompte dealt out justice as he should,
when he ran that department of the Territory of Kansas, and his name was by
no means savory among Free State people; even the Judge himself is aware of
this fact, and has remarked to that effect, when conversing upon the subject.
But are there not excuses sufficient to palliate his conduct in some degree?
Judge Lecompte was born, reared and educated in the South. He spent all his
days amidst the institution of Slavery, and was taught to believe it a Divine in-
stitution, and as sacred in law as the Constitution of the United States itself.
He was appointed at a period of intense bitterness on the Slavery question, and
came here with all his prejudices on the question. He was appointed for the
purpose of carrying out a certain line of action, and no doubt fulfilled his mis-
sion more faithfully than was pleasant or wholesome for Northern men. But if
Lecompte did this, we must remember that he was backed by both Presidents
Pierce and Buchanan, Northern men, and by Gov. Shannon, also a Northern
man. Why shall the past be raked up against Lecompte, who believed in the
cause in which he was engaged, and forget the part taken by those Northern
men, who directed Lecompte's actions, but who were not actuated by sincere
motives? Although Lecompte's acts may have encouraged outrages, and pre-
vented the punishment of those who committed them, yet we have never heard
that he engaged in any of them himself indeed, we have always taken him for
a man whose disposition was averse to ruffianism.

When Slavery was defeated, and Kansas admitted as a Free State, Lecompte
quietly accepted the situation, remained in the State, and yielded obedience
to the laws. When his Southern friends rebelled, he did not go with them,
but remained loyal, and if he was even suspected of disloyal sentiments, we
have never heard of it. Rebels, both Northern and Southern, have been for-
given [Amnesty Act, 1872], and are again beginning to crowd the Halls of
Congress. We cannot see the justice of continuing to throw stones at Lecompte,
for acts committed before the rebellion especially by men who have so many
sins of their own for which they need forgiveness and forgetfulness. We do
not pretend to justify or apologize for the acts of Judge Lecompte in the early
history of Kansas; but if he has been convinced of his error, and is endeavoring
to atone for it, we say, let him alone. 19

Miller's editorial drew an appreciative note from Lecompte, and
an arrangement by which he prepared a defense of his career as
territorial judge in Kansas under the title, "The Truth of History,"
which was printed in the Kansas Chief, February 4, 1875. After
reading what Lecompte had to say, Miller introduced the com-
munication with the following editorial, which went rather further
in concessions to the writer than the earlier editorial:

Most of our inside reading space, this week, is occupied by Judge Lecompte's
review and defence of his official life, as Judge of Kansas Territory. Several

19. Ibid., January 7, 1875.


weeks since, we published an article, in which we contended that, however
censurable some of the Judge's acts may have been, we did not regard him as
so bad a man as he had been represented to be, and that in consideration of
his subsequent good behavior, he was entitled to forgiveness. This prompted
the Judge to ask if we would grant space in our columns for a review and
defence of his official conduct, and if so, what space would be allowed. We
replied that it was a rule with us to give every man who desired it a fair show-
ing in this paper, and that he might occupy as much space as he deemed
necessary to do himself justice. What he has to say on the question is before
the reader.

Judge Lecompte's statements are most complete and clear upon every
point, embracing, we believe, all the acts or alleged acts for which he has been
so bitterly denounced for almost twenty years. He does not shirk any ques-
tion, nor beat about the bush, but defies proof, either by living witnesses or
authentic records, to prove that any of the charges were true or just. If there
be any who have evidence to the contrary, now is the time to produce it.

We are among those who once believed, that if Judge Lecompte did not
directly countenance and encourage Pro-Slavery outrages, his leaning was so
strong on that side of the question, that advantage was taken of it by those
who did commit the outrages. This was the impression we received before
coming to Kansas; and after coming here, we heard nothing to correct the im-
pression. Reports of committees, and the tone of what purported to be true
histories, all pointed in the same direction. The Judge's political friends did
not seem to make an effort to refute the charges, which was regarded as ad-
mitting their truth. Having since met him upon several occasions, his appear-
ance, bearing and style did not seem to us to be those of a man who had a
taste for ruffianism; and his after conduct has been that of a peace-loving and
law-abiding man. We therefore thought, that if he had been open to censure
for past acts, it was time they were forgiven, if not forgotten.

But, according to his own story, the Judge is himself responsible for having
so long rested under the odium of those charges. He tells us, in this article,
that when investigating committees, officials and reporters were charging him
with gross crimes, he took no measures to vindicate himself; that only once,
before this time, has he ever offered, in print, to defend himself and the first
time, we presume, he did not enter into a thorough review. So that, we may
say, now is the first time that he undertakes a full defence of himself. He
ought not, then, think so badly of the press. We are honest in our belief that
he was open to censure; and other editors, from the same sources of informa-
tion, doubtless honestly believed the same thing. One generation that held
him guilty is rapidly passing away, and their children have been brought up
in the same belief. It may be, that if the Judge had undertaken his vindica-
tion while the bitterness of the strife still existed, it would have been looked
upon as simply intended for effect, and have failed of its object. Perhaps now
is a more appropriate time to speak out; but still, as all statements heretofore
made have been on the opposite side, it is not at all strange that public senti-
ment was against him.

We are glad that Judge Lecompte was induced to place a review of his
official acts upon record, by seeing a desire on our part to be fair and just, and
that he chose our columns for his purpose; for it is the other side of a question
of Kansas and national history, which should be made correct and perfect


while there are living witnesses of the facts. The statements seem to be fair,
and must be regarded as true, until the contrary is proven.

Except for four paragraphs, Lecompte's "The Truth of History"
letter has been reprinted in the Collections of the Kansas State
Historical Society, 1903-1904, v. 8, pp. 389-405, which makes it
generally accessible. With the details of the occasion for the de-
fense before the reader, he may read and judge for himself the
reasonableness of Lecompte's presentation of his case as it applies
to the many episodes in controversy. The present consideration
must be restricted to the paragraphs omitted in the reprint, with-
out the customary signs of omission, or explanations, and to the
Sheriff Jones episode.

The two opening paragraphs of "The Truth of History" were
deleted in the reprint. The first was not important, except as ex-

Online LibraryKansas State Historical SocietyThe Kansas historical quarterly (Volume 20) → online text (page 66 of 76)