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He said he was glad that it was permitted to so many of the actors in those
early times of excitement and trouble to come forward and explain to each
other the positions they occupied, and to have the errors that had gone upon
the record corrected. He thanked Judge Lecompte for having accepted the
invitation of the society to deliver a lecture under its auspices.

Thus the experiment in giving Lecompte his opportunity to be
heard passed off without any serious untoward incident. Both
Adams and Robinson, although not compromising their own point
of view, were endeavoring sincerely to keep the scales balanced
evenly and in good taste.


At Lawrence, local annual old settler meetings were inaugurated
in September, 1870, continuing without interruption until 1878. At
the meeting of 1877, a decision was reached to skip one year and
make the meeting of 1879 a quarter-centennial celebration on a
state-wide scale. In this manner Lawrence took the lead away
from other centers of old settler organization. The Osawatomie
area had organized in 1872, and Franklin county in 1875. 24 The
Leavenworth Old Settler Association had been organized August 8,
1874, H. Miles Moore, secretary. 25 Kansas had been busy making
history. Now, in the 1870's, the older generation under the name
of "Old Settlers," began the "Battle of Kansas History." In the
making of Kansas territorial and Civil War history, the participants
operated under the Free-State or Antislavery as against the Pro-
slavery banners. In the later warfare, they fought each other,
another Kansas Civil War, over credits and interpretation.

The quarter-centennial celebration of the organization of the
territory of Kansas was a two-day event held at Bismarck Grove,
along the Union Pacific railroad, near Lawrence, September 15, 16,
1879. Charles Robinson was president, and among the vice-presi-
dents announced was Samuel D. Lecompte. He was present, his
name appearing among the registrants, but he did not speak, and

24. Malin, John Brown and the Legend of Fifty-six, ch. 14.

25. "H. Miles Moore Papers," Coe collection, Yale University Library. Microfilm, Kansas
State Historical Society.


apparently made no appearance before the public. Obviously the
occasion was a celebration of the defeat of the cause for which he
had stood. Gen. Benjamin F. Stringfellow, of Atchison, was invited
but did not attend. His letter explained that he was prevented by
circumstances over which he had no control, and which made him a

Col. D. R. Anthony was present, and delivered an address, which
included the following compliments to his fellow citizens of Leaven-

I hope we will remember the "lesson" that was read to us yesterday, the
"LESSON OF KANSAS." Let us not forget it. Let us see to it that history records
the truth. Do not allow history to record a lie. Let it not be forgotten, that
twenty-five years ago the army, the^ navy, the courts, and the whole power of
the national government and its appointees were invoked to make Kansas a
slave State. No federal judge or other official dared disobey the commands of
the slave power. When the Hon. Samuel D. Lecompte, Judge of the United
States District Court at Lecompton, delivered his famous charge, defining
"constructive treason" to the United States grand jury then in session, and
when the grand jury indicted the Free State Hotel at Lawrence as a nuisance,
and then under command of a United States Marshal proceeded with a posse
comitatus to batter down that hotel with cannon, sacking and then firing it,
the court remained silent as the grave while this outrage was perpetrated, and
not till long years afterward did he even attempt to explain his then apparent
silent approval of the vandalism of his marshal, grand jury and court officials.
President, Congress, Territorial Governor, Judges, Courts and Federal officials
dared not lift a hand to prevent the destruction of that Free State Hotel. Let
these facts go down into history, and don't let us attempt to wipe them out.
We could not if we would; we ought not if we could.

Anthony hated with the same vigor he put into his other activi-
ties, which made him so potent a force in Leavenworth history.
The last sentence in the above quotation was a paraphrase of
Lecompte's own language from the second paragraph of his Kansas
Chief letter, which Anthony was throwing back at him. As presi-
dent of the old settler association, and official host, Robinson under-
took again, but not so successfully, to keep the proceedings on a
high level of mutual courtesy, an aspect of charity in his character
that has usually been overlooked, obscured possibly by the bitter
controversies of succeeding years to which he became a party. 26


At the hands of several people who have written general histories
of Kansas, Lecompte has not received fair treatment. Only Leverett
W. Spring, professor of English at the University of Kansas, in his

26. The proceedings of the quarter-centennial celebration were edited by C. S. Gleed,
and published under the title, The Kansas Memorial (Kansas City, Mo., 1880). See pp.
10, 95, 102-106, and 234.


Kansas, The Prelude to the War for the Union, published in 1885,
extended to him even partial justice. Spring's blunders were diffi-
cult to explain. He was a friend of Charles and Sara Robinson, who
knew better. In relation to the notorious accusation about the
charge to the grand jury on constructive treason, Spring did Le-
compte the justice to quote from a letter of December 31, 1884, in
which Lecompte explained his position, and again denounced the
alleged charge to the grand jury as an invention of the imagination
of the Free-State reporters. But on the subject of the "sack of
Lawrence" no new statement of facts was introduced. Spring wrote
that the Douglas county grand jury "found bills of indictment
against two newspapers . . . and against the principal hotel of
that town, which some extraordinary obliquity of vision transformed
into a military fortress, 'regularly parapeted and port-holed for the
use of cannon and small arms'" (p. 118).

Later he erroneously involved Marshal Donaldson (the name
should have been Sheriff Jones) by saying:

Marshall Donaldson and his advisers, though some of them belonged to the
legal fraternity, reposed an astonishing confidence in the virtues and preroga-
tives of the famous grand jury of Douglas County. Scorning such intermediate
steps as citations, hearings, opportunities for explanation or defense, and the
like, they wrecked a hotel and threw two printing-presses into the river, upon
the authority of a bare grand jury presentation.

He then quoted from Lecompte's letter to Stewart of August 1,

That presentment still lies in court. No time for action on it existed none
has been had no order passed nothing done, and nothing ever dreamed of
being done, because nothing could rightly be done but upon the finding of a
petit jury.

But the whole story was told in a satirical vein, holding up the
whole proceeding to ridicule. Even the gestures of justice to Le-
compte, Atchison, Buford, and Jackson, were lost, except upon the
most discerning readers, in the facetious context of the whole treat-
ment. The story of May 21 required some explicit pointing up to
guide the unwary reader through the complexities of the highly
controversial material. Spring himself was confused, apparently,
by legal terminology, and used the words indictment and present-
ment. Under some circumstances they are used interchangeably.
Probably Lecompte had erred in using the word presentment in his
Stewart letter, but that must be discussed later. But with all these
strictures on Spring's handling of the "Sack of Lawrence," his treat-
ment is less objectionable than any others in the general histories.


By the time this book was published, in 1885, the controversy ( or
controversies) over Kansas history was burning with the fury of a
prairie fire before a northwest gale. On one side were Robinson,
Thayer, and others of the Emigrant Aid Company group, and on
the other the admirers of John Brown and Jim Lane. 27 These un-
fortunate animosities gave point to that masterpiece of understate-
ment by the Topeka Daily Capital on the occasion of Professor
Spring's resignation to accept a professorship at Williams College
in Massachusetts: "The loss of the professor would be more gener-
ally mourned if he had not attempted to write a history of Kansas." 28


In 1887 F. G. Adams, secretary of the Kansas State Historical
Society, asked Lecompte for a portrait for the files of the Society.
Lecompte declined, writing a long letter reviewing his point of
view in the territorial troubles. He differentiated between Adams
and the Society, acknowledging Adams' "generous disposition" in all
their personal relations.

Thanking you again, most profoundly, for your individual consideration, I close
with the assurance that I have no desire that my photograph or picture should
grace, as perhaps a score of personal friends might deem, or disgrace, as the
hosts who have confederated to my destruction would adjudge, the halls of
the Historical Society of the state. 29

Adams was much disturbed by Lecompte's reply and wrote im-
mediately suggesting his willingness to have the letter published in
a Topeka newspaper:

It has never been my privilege to have much personal intercourse with you,
but I have long known of the great respect, and kind interest with which all
who have known you best have regarded you; and I know that such, even
though they may have differed from you have been pained to observe the harsh
criticism of which you complain. 30

Immediately Lecompte gave his consent to publication but
warned that "I should expect to have it made the occasion of re-
opening controversy and strife. . . ." Adams reconsidered, and
offered instead of publication, to locate the Kansas Chief letter pub-
lished in 1875 and enter a reference to it in the index of Kansas
material kept by the Society: "This will subserve your main desire,
that you shall not, through the records of the Kansas Historical

27. Malin, John Brown and the Legend of Fifty-six, chs. 17-21.

28. "The Annals of Kansas: 1886," Kansas Historical Quarterly, v. 20, p. 167.

29. Extracts printed in the Collections, of the K. S. H. S., v. 8, pp. 389, 390, footnote.
The original is in the "Correspondence" of the K. S. H. S., Topeka.

30. Adams to Lecompte, March 11, 1887, "Correspondence" of the K. S. H. S., "Out-
going," v. 16, pp. 126, 127.


Society go down to history with but a one-sided showing of your
career as the first Kansas Chief Justice. . . ." 31 Thus ended the
episode, but no portrait of Lecompte was forthcoming, and none
is now in the possession of the Historical Society, except as he ap-
pears in the group picture of the legislature of 1868.


Historical research has sometimes been referred to cynically as
digging up bones out of one graveyard and reburying them in
another graveyard. That metaphor seemed peculiarly applicable
to the several Lecompte defenses. His Stewart and Pearce letters
of 1856 were forgotten completely by the 1870's. Thus his Kansas
Chief letter published in 1875 appeared to be new. But that state-
ment of the case was not generally accessible even to contem-
poraries. Even though F. G. Adams was as well informed as anyone
on Kansas history, in 1887, he was not aware of Lecompte's Stewart,
Pearce, or Kansas Chief letters. In 1902 G. W. Martin, secretary of
the Kansas State Historical Society, wrote to Mrs. Charles Robinson:

An unfortunate thing in recording history is that those who get whipped
never write history. Since I have been here I have begged and begged John
Martin to write a paper on the personal characteristics of the proslavery leaders.
Only last week in looking through a newspaper file of 1875, 1 came across a half
column extract from an article published in the Troy Chief from Judge
Lecompte. I made a minute of it, and put it away saying that I was going to
have some proslavery matter in the next volume [of the Collect ions] , 32

True to his word, Martin did exactly that, and reprinted Le-
compte's "The Truth of History," from the Kansas Chief, under the
title "A Defense by Samuel D. Lecompte/' and with an explanatory
note: "as an act of historic justice." 33 In a footnote was printed
also a biographical sketch and a summary of the Adams-Lecompte
correspondence concerning the portrait. Omitted, however, was
any reference to the exchange over publication of Lecompte's letter
of March 7, 1887. Omitted also, as explained earlier in the present
article, were four paragraphs of the letter. But at any rate, for the
first time the major portion of the Lecompte defense became avail-
able in a form suitable for general reference. Without a substantial
historical background for Lecompte's statement, however, the full
force and substantial accuracy of his version were not generally ap-
preciated. Captivity to a firmly established tradition was too strong.

31. Adams to Lecompte, March 11, 22, 1887, "Correspondence," K. S. H. S., "Out-
going," v. 16, pp. 126, 127, 147, 148; Lecompte to Adams, March 7, 16, 1887, "Miscel-
laneous Mss."

32. Martin to Mrs. Robinson, July 28, 1902, "Charles Robinson Papers," Ms. division,
K. S. H. S.

33. Collections of the K. S. H. S., 1904, v. 8, pp. 389-405.



Why has the history of the United States district court for the ter-
ritory of Kansas remained in such a state of controversy as has been
detailed in the course of this article? One important reason was
that the records were thought to have been lost. In the course of the
Anthony libel proceedings, the Times, January 4, 1874, reported

The original papers in the . . . [Phillips] case are now on file in the
Clerks' office in this city. The indictment of the Grand Jury, declaring the Free
State Hotel and the two Free State newspapers in Lawrence, nuisances, cannot
be found. They have probably bgen abstracted from the records of the court.
In these later days, there are obvious reasons why many officials would very
naturally desire their destruction.

The Times, January 4, 1874, proceeded to publish documents re-
lating to the Phillips case. Later, during the preliminary hearings
in the Anthony case, the Times, January 7, reported that "The
records of the court while under Lecompte's management were sent
for and found to be either missing or mutilated to such an extent
that nothing could be gleaned from them." A suggestion was made
that interested parties had removed papers for self-protection, the
innuendo being that Lecompte was guilty. But the same report also
stated that "Lecompte wanted these records to be used as testimony,
and the defense pleaded their insufficiency and asked to prove the
imbecility and corruption of Lecompte's court by parole testimony."
In the same connection Legate testified that "all the records of this
court were burned at the time of Quantrell's raid on Lawrence.
. . ." In 1911, when the Leaven worth county courthouse burned,
all records were again reported destroyed.

Truth is often stranger than fiction, and in spite of all the reports
to the contrary, the records of the United States district court for the
territory of Kansas are substantially complete. It is possible that the
largest loss occurred in the Leaven worth courthouse fire of 1911,
but most, if not all of the book records were saved. 34 The documents
which the Leavenworth Times, January 4, 1874, published were not
returned to the clerk, but were retained by H. Miles Moore, and
are now to be found in his papers acquired by the Kansas State
Historical Society in 1908. Some of the territorial records are in the
archives of the United States district court and of the state supreme

34. The present author made a general survey of the records in the storage vault of
the district court at Leavenworth. An inventory of all the records in the courthouse would
be necessary to be sure about details. The case files for Leavenworth county cases were
not located.


court at Topeka. As the court traveled from county to county in
circuit during most of the territorial period, exercising jurisdiction
equivalent to the state district courts after 1861, some such records
may have been turned over to clerks of these district courts, in the
respective counties, after 1861. Apparently that is what happened
in Leavenworth county, except that more than the records of that
county accumulated there because Chief Justice Lecompte resided
there rather than at the territorial capital, Lecompton.

The largest single body of records of the court, however, have a
different history. During the winter of 1932-1933, when prepara-
tions were being made for razing the old federal building at Topeka,
the accumulation of federal records of all kinds stored in the upper
story were about to be sold for waste paper, when the State His-
torical Society intervened and secured their transfer to its custody
seven truck loads of paper. A sorting of that material revealed,
among other things, the existence of most of the judicial archives of
the United States district court for the Territory of Kansas. From
another source, at about the same time, "Record A, 1855-1858"
(the journal of the court), for the first division of the first district,
that of Judge Lecompte, earlier deposited at Leavenworth, came to
the State Historical Society. 35 This court material was sorted and
given its preliminary organization for research purposes by the
present author. Only the John Brown study has been published
from this material. The record of the court as bearing upon the
Lawrence episode is presented here for the first time.

Before taking up this particular case, however, the points of the
criminal code essential to legal procedure in the case must be sum-
marized. In the "Bogus" Laws of 1855, chapter 129, article III, "Of
Grand Juries and Their Proceedings Practice and Proceeding in
Criminal Cases," it was provided that grand juries should consist of
not more than 18 summoned, nor less than 15 sworn. The prose-
cuting attorney was to attend, when required by the grand jury, and
might attend on his own motion to present information, and in either
case would examine witnesses, and give legal advice, but he and all
others should not be present when the grand jury voted upon any
matter before them. A concurrence of at least 12 grand jurors was
necessary for voting an indictment, upon which the foreman must
make the endorsement, "A true bill"; and when less than 12 con-
curred, the foreman must make the endorsement "Not a true bill."
Indictments voted must then be presented in open court, and in

35. Report of the annual meeting of the K. S. H. S., 1932-1933, Kansas Historical
Quarterly, v. 3, p. 93. For a more complete description, see Malin, John Brown and the
Legend of Fifty-six, bibliographical note, pp. 765-767.


the presence of the grand jury be filed there, and remain as records
of the court the journal of the court.

In article IV of the same chapter, 129, it was provided that in-
dictments were not invalid merely because of certain omissions or
defects in the form. Warrants for the arrest of a person indicted
might be issued by the court, or the judge of the court in which the
indictment occurred, or by any judge of the supreme court, but
"by no other officers, . . ."

Quite properly, the first step in considering the particular case
is to examine "Record A," the minutes of the proceedings of the
court itself. Each and every item of business presented to the court,
or action taken by the court, was entered in this manuscript book.
For the month of May, 1856, no entry whatever appeared relating
to the Free-State Hotel, or to the printing offices at Lawrence. Of
course, Lecompte had said that in his Stewart letter of August 1,
1856, but he was not believed.

The second step is to examine in detail every sheet of paper
identifiable as having to do with the grand jury of Douglas county
for May, 1856. Three pieces of paper are on file that refer to the
objects in question A complete manuscript copy of the document
so notoriously exploited in history as the indictment or presentment
of the hotel and the printing offices, with the name of Owen C.
Stewart, foreman of the grand jury, at the end. But the document
and the signature are in the handwriting of a clerk. A second copy
of the document, also in the handwriting of a clerk, lacks the last
sentence and the name of the foreman. A third document, a frag-
ment of a sheet of paper, contains the final sentence, missing in the
above, and the signature, both in the handwriting of Owen C.
Stewart. The second version mentioned, and the genuine Stewart
signature are reproduced in the accompanying photographs.

Note should be made of the fact that this document was not in
the form of an indictment; no persons were cited as owners or
operators of the premises complained of; the document had been
signed by the foreman of the grand jury, not by the district attor-
ney. It had not been endorsed by the foreman, "A true bill," as
required by law; and there was no endorsement indicating that it
had been presented in open court. These were not merely technical
defects; taken together, they were fundamental defects which rule
it out as even approximating an indictment, or even a binding legal
document eminating from a grand jury. Inanimate objects cannot
be indicted in any case, only legal persons responsible for a nuis-
ance. With these facts in evidence, it is astounding that Lecompte,


in his letter to Stewart, August 1, 1856, used the word "present-
ment." On the other points in his explanation he was correct so
far as he went, but evidently he had not refreshed his memory by
an examination of the records of his court as a basis for writing the
Stewart letter. He could have made so much a better case.

It was the function of the prosecuting attorney to prepare and sign
an indictment ready for action by the grand jury. The presence
of the signature of Owen C. Stewart, the foreman of the grand jury
in the place where the signature of the district attorney should
have appeared branded this document on its face as anything but
an indictment, or "a true bill." No legal persons having been speci-
fied in the alleged indictment, no warrants could have been issued,
and none could have been issued on a legal indictment except by
a judge. To go any further would seem to be engaging in the
proverbially useless pastime of flogging a dead horse. Yet for
nearly a century, Kansas, and professional historians, and the legal
fraternity have taken seriously the legend about this document.
How long can people remain captive to so obvious a hoax? Even
in its printed version, before the public for almost a century, the
substantial defects of the document were plainly apparent.

Upon several occasions, and upon a number of subjects, grand
juries had made recommendations for the good of the community
as they saw it. That was all that was done on this occasion; a
recommendation prepared and signed by the foreman, and prob-
ably voted by the grand jury, although there is no record on that
point. That, and nothing more, is what the document purports to
be. Of the several of such recommendations found in the records
of the court, this is the only one that was not accepted and treated
at its face value. In both parts of the second paragraph, the lan-
guage is explicit "we respectfully recommend . . "

In the second district, Judge Cato presiding, the district court
met in Anderson county, April 28 to May 1, 1856, and after com-
pleting the other business before them, the grand jury expressed
their sentiments in the form of two recommendations; the increasing
political tension, and abuse of the land laws. On the former sub-
ject: "we . . . recommend to that portion of our fellow citizens
. . . that do not believe the laws of the Territory are legal to at
least abide them until a respectable majority of them see proper
through their legislature to have them altered." 36 The recommenda-
tion of the Douglas county grand jury is in the same category, and

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