The Hatfields and the McCoys (12 page)

On January 30, several days before Hill returned to Frankfort, Buckner wrote Wilson a long letter in which he placed the blame for the troubles on the Hatfields and expressed surprise that there should be any delay in rendering to Kentucky men who now stood guilty of the perpetration of “other crimes of the most atrocious character in the same locality.” He insisted that extradition procedures had been in proper order and that Wilson should issue warrants for Elias Hatfield and Andrew Varney and allow the courts to determine their guilt rather than pass judgment himself. Buckner admitted that Cline had tried to persuade him to withdraw the rewards for the Hatfields in return for their promises not to come to Kentucky again. He drew attention away from the corruption of Cline, however, and raised questions about the means used by the Hatfields to prevent the requisitions and rewards from being honored. Finally, Buckner justified the delay of Pike County officials in seeking extradition on the somewhat irrelevant ground that the indicted men were so heavily armed when they were in Pike County that officials dared not arrest them.

Frank Phillips, Buckner stated, had sent the required fee for extradition to West Virginia and had gone into that state only when he had no acknowledgment from Wilson. With two other persons and “without any disturbance or conflict of any kind,” he had succeeded in capturing Tom Chambers, Selkirk McCoy, and Moses Christian, three of the men named in the indictments. Phillips had transported his captives to Kentucky and lodged them in the Pike County jail. According to Buckner, that action had prompted the attack upon the McCoy family on the night of January 1, 1888. Following the brutal assault upon the McCoys, Phillips, with a company of armed men, made three expeditions into West Virginia. The first resulted in the killing of Vance, the second in the capture of six additional West Virginians, and the third in the encounter in which Bill Dempsey was killed.

Confessing the difficulties in ascertaining the facts of the situation along the Tug, Buckner stated that he had obtained his information from Lee Ferguson, the county attorney of Pike, who had taken great pains to get at the truth. Buckner expressed regret that any citizens of Kentucky had attempted to arrest West Virginians without first obtaining proper authority, but he reiterated his conviction that “Frank Phillips … is not the murderous outlaw your excellency seems to suppose.” He added, however, that “as he had undertaken to arrest some of the parties in West Virginia without your warrant, and is, therefore, objectionable to you, I will, when your excellency indicates your readiness to surrender the persons demanded, take pleasure in designating another agent for that purpose.”
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Convinced that West Virginia had more reason for complaint than Kentucky and that further correspondence with Buckner was pointless, Wilson decided to institute legal proceedings against Kentucky. On February 1 he dispatched Mahan to Frankfort with a request that Governor Buckner immediately release the nine West Virginians, who had been seized illegally. He instructed Mahan to obtain an answer from Buckner before he returned to Charleston. Less than a week later Mahan brought a letter from the Kentucky governor explaining that the courts, not he, had jurisdiction over cases involving the release of prisoners.
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Regarding Buckner's response unsatisfactory, Wilson decided to initiate habeas corpus proceedings. Passing over his attorney general, Alfred Caldwell, who allegedly warned that West Virginia had at best a weak case, he engaged Eustace Gibson, a prominent Huntington attorney, who had served as Speaker of the West Virginia House of Delegates and member of Congress, to present the case to the United States District Court in Louisville. On February 8 Gibson presented the petition to Judge John Watson Barr, who set a hearing for noon the next day, with Gibson and former governor J. Proctor Knott of Kentucky representing their respective states. In his motion for writs of habeas corpus, Gibson stated that armed men from Kentucky had invaded West Virginia without warrant, legal authority, or legal process and taken West Virginia citizens to the Pike County jail, where they faced great danger of assassination. In addition, the motion charged that armed men had captured Selkirk McCoy while correspondence between the governors of the two states was in progress.

Kentucky Attorney General Parker Watkins Hardin, who had been directed to appear at the hearing, declared that he had received only a few hours' notice and asked additional time for preparation. Gibson expressed a desire to be courteous, but he contended that the trial should be held as soon as possible to protect the lives of the prisoners, which he claimed to be in jeopardy. Although professing sympathy for the prisoners, Hardin questioned the jurisdiction of Judge Barr's court over the matter and refused to consent to the writs until he had time to study the matter. Gibson agreed to a short postponement, and the court recessed until ten o'clock on February 10.
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When the court reconvened, Gibson opened the arguments by noting that the case had no precedent, since the federal government had never had to deal with a situation in which one state demanded that another surrender its citizens who had been illegally seized. He held that a requisition could be made only under the United States Constitution, which, though it might not assure protection to the states, guaranteed American citizens protection against unlawful seizure.

Knott took the position that the case was not one between the states but involved a simple question of whether writs of habeas corpus should be issued to bring certain criminals to justice. He vigorously defended the course pursued by Governor Buckner in the Hatfield-McCoy matters and contended that even an illegal capture of the Hatfields could not prevent their confinement in the Pike County jail, since they were guilty of the gravest of crimes. Knott argued that if Gibson's reasoning prevailed any criminal could escape prosecution and find safety in another state. He denied that the lives of the prisoners were in danger and asserted that they could expect a fair trial in Pike County.

Hardin maintained that if the points at issue involved the states, only the United States Supreme Court had jurisdiction. He denied that such was the case, however, and contended that when Wilson asked for the writs of habeas corpus, he, in effect, became before the law a person and not the governor of West Virginia. Only the prisoners themselves, he contended, could ask for their own release. On a practical note, Hardin declared that if the court liberated the West Virginians they would return home and never face trial for their crimes.

Gibson presented the closing arguments. He defended the actions of Governor Wilson and held that Buckner had evaded the issue in his letters to Wilson. He suggested that the failure of Kentucky to seek extradition of those charged with the murder of the McCoy brothers for more than five years after their indictments constituted bad faith. On a note of sarcasm, he declared, “With all the magnificent power of this State [Kentucky]—with all the power of her executive, her judiciary, her army that has been so often called on to protect her Judges from assassination by her citizens, or the citizens from assassination by the Judges—with all this power, for five years Kentucky took no steps to bring those indicted men to justice until a shyster lawyer named Kline [
sic
] brought up the subject and caused the Governor to offer the magnificent reward of $2,500 for the capture of men who had stood with arms outstretched ready to be taken.” Finally, Gibson drew a graphic picture of the mountain warfare in Kentucky, which he declared not only a disgrace to the state but also to the nation and which, he said, had no counterpart in West Virginia.

Judge Barr summed up the case. He accepted the contention of Hardin that it was not essentially one between the two states and that his court therefore had jurisdiction over it. He dwelt upon laws relating to habeas corpus and provisions protecting the rights, liberty, and property of individuals. He found nothing to show that the West Virginians had been legaily arrested and confined to the Pike County jail, although he conceded that the issuance of bench warrants may have legalized their arrest once they crossed the state line. Although Barr held that all the men involved should have signed the petition for the writs of habeas corpus and given the grounds for their suit in writing, he overlooked the technical error and, after some demurral by Hardin, made the writs returnable on February 20. He ordered the jailer of Pike County to produce the nine men in court at Louisville.
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Reaction of the press to Judge Barr's decision was predictable. The
Louisville Courier-Journal
on February 12 declared, “For years the press and the officers of the state have been earnestly endeavoring to make the law a terror to evildoers, and now for the first time in the history of any civilized community the power of a ‘sovereign state' is invoked to give protection, license, and immunity for the past and assurances for the future to a band of white savages whose brutalities, whose inhuman tortures have not been paralleled in Kentucky since Boone and his followers drove the Indians to other hunting grounds.” On the other hand, the
Huntington Advertiser
on February 18 extolled the services of Gibson, who “did honor to himself and to the State in the matter of the application for the writ.” The
Advertiser
considered the “savage tone” of the
Courier-Journal
regarding Barr's decision a measure of Gibson's success.

Governor Wilson acted immediately upon the decision of Judge Barr. Two days later he issued a requisition upon Governor Buckner for twenty-eight men, all charged with participating in the murder of William Dempsey. His requisition produced no immediate result, since Buckner did not comply with it, but it served as an indication that for the moment the initiative in the Hatfield-McCoy troubles had passed from Kentucky to West Virginia.

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VICTORY FOR KENTUCKY

T
HE DAY AFTER Judge Barr rendered his decision, United States Deputy Marshal J. V. McDonald left for Pikeville to serve the writs of habeas corpus. Contrary to the dangers depicted by Eustace Gibson in his arguments before Judge Barr, the marshal found the town of Pikeville quiet. Rumors persisted, however, that the Hatfields would try to rescue the prisoners. For that reason, a carefully chosen guard, under the direction of Perry Cline himself, accompanied them to Louisville. The guard included Lee Ferguson; Jim York, the attorney for Randolph McCoy; Charley Yoste, a deputy sheriff of Pike County; Jim Sauers, first lieutenant, and Allen Cline, second lieutenant, of the Pikeville militia; and Link Cline and Dan Marrs. The guard conducted the prisoners to Catlettsburg and placed them aboard a Chesapeake and Ohio Railway train. On the evening of February 16, at 7:15, they arrived in Louisville.
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A reporter for the
Louisville Courier-Journal,
who hurried to Catlettsburg and made the journey with the prisoners, obtained interviews and provided curious readers with details of their experiences. Wall Hatfield impressed the reporter as a mild, quiet, and intelligent man. He steadfastly denied any knowledge of the killings for which the men had been indicted. According to Wall, Kentucky officials asserted that the West Virginians, who had been seized by armed men from Pike County, had been arrested after they reached Kentucky.

Jail officials, Wall stated, had treated the men well, and he himself had not been locked up, although all the prisoners remained under heavy guard because of fears of attempts upon their lives or efforts to rescue them. He told the reporter that Perry Cline had declared that he would never give up the West Virginians and that Randolph McCoy, who had allegedly threatened to shoot Wall on sight, had said that he could not desire the Hatfields in a better place than the Pike County jail. Wall declared that he had tried to give bond and that Colonel John Dils had offered fifty thousand dollars as surety, but Pike County officials had refused to release him.
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To the large crowd of curious people who gathered at the Louisville railroad station, the prisoners appeared very different from the mountain folk frequently brought to the city on moonshine charges. All wore soft felt hats, several of them chose white shirts, and at least three had on collars. Mostly young men, they appeared indifferent as they walked at a brisk pace and under heavy guard to the jail. Within half an hour after the train arrived they were in the custody of federal marshals.

The reporters then turned their attention to Lee Ferguson, who proved a special delight. The loquacious Ferguson insisted that the West Virginians were guilty of the crimes charged against them and that the Kentucky posse was justified in forcibly taking them from their homes. He ventured the information that one West Virginia official, meaning John B. Floyd, had received a fee of five hundred dollars from the Hatfields to prevent Governor Wilson from honoring the extradition request from Kentucky. Ferguson also told the reporters that Devil Anse had sold five thousand acres of land along the Tug Fork for seven thousand dollars, despite its worth of at least fifteen thousand, and moved near Logan, some forty miles from the border. Finally, he added the titillating story that Wall Hatfield had five living wives and thirty-three children and that he did not marry the wives according to law, but apportioned his time among them.

For several days the Hatfields remained the center of interest in Louisville. The
Courier-Journal
of February 17 devoted most of its front page to a feature that included an artist's drawings of the nine prisoners and Randolph McCoy. Other inmates of the jail developed a fondness for the West Virginians, who soon dropped their initial reticence and began to converse freely. They especially liked Wall, whom they nicknamed “Judge.” The Hatfields in turn enjoyed the reading which other prisoners did for them and took part in divine services, particularly the singing of hymns, which they rendered with remarkably fine voices. They proved unable, however, to adjust to the schedule of the other inmates and continued their mountain practice of going to bed at dusk and arising noisily between four and five o'clock in the morning.
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