The Hatfields and the McCoys (13 page)

Judge Barr called the habeas corpus case for Saturday morning, February 25. To the spectators who filled the courtroom, the Hatfields and their associates presented a stoical appearance throughout the proceedings. After seemingly endless debate between the attorneys for the two states, Barr recessed the court until Monday, February 27. When it resumed, Governor Wilson and his close associate, John B. Floyd, armed with books and official records, joined Gibson and his associate, J. W. St. Clair. The small, slender Wilson, who nibbled almost constantly at his bushy red mustache, conferred frequently with the West Virginia attorneys and impressed those present as a remarkably able man.

The counsel for the Commonwealth of Kentucky based their arguments upon the claim that a prisoner could not escape prosecution by pleading illegality or irregularity of arrest; that Frank Phillips had acted as an individual and upon his own responsibility and not as an agent of the Commonwealth in arresting the West Virginians; and that Kentucky was not responsible for his actions or those of the men who accompanied him. Citing a number of cases to support their points, Hardin and Knott maintained that the violation of proper procedures did not suspend the right of a state to arrest a wanted person found within its borders.

Gibson insisted that the cases cited by Hardin and Knott did not apply to the issue at hand. In none of them, he declared, had prisoners been deprived of their liberty until they have been found by an officer with proper authority to confine them. The Hatfields, on the other hand, had been held for more than twelve hours before the legal execution of warrants upon them. Gibson maintained that Phillips himself had stated that he acted under the authority of Kentucky and accused the Pike County prosecuting attorney of summoning all the magistrates as witnesses to prevent them from hearing the case. Finally, he charged the attorneys for Kentucky with “mere fiddling.”

Hatfield family c1897.
coutresy of the west virginia Department of Archives and History.
Front: Tennis Hatfield, Louvisa or Midge Hatfield, Willis Hatfield, “Watch,” Devil Anse's coon and bear dog.
Middle
: Mary Hatfield Simpkins Hawes and daughter Louvisa Simpkins, Devil Anse and Levicy Hatfield, Nancy Clenn Hatfield and son Robert, Louisa Hatfield, Cap Hatfield, Troy Hatfield, Betty Hatfield Elias Hatfield, Tom Chafi, Joe D. Hatfield, “Ock” Dameron, Sheppard Hatfield Levicy Hatfield.

Devil Anse Hatfield
Courtesy of the West Virginia Department of Archives and History

Devil Anse and his wife, Levicy, in later years
Courtesy of the West Virginia Collection, West Virginia University Library

Randolph McCoy
Courtesy of Leonard McCoy and the Preservation Council of Pike County, Kentucky

Frank Phillips
Courtesy of Leonard McCoy and the Preservation Council of Pike County, Kentucky

Rose Anna McCoy
Courtesy of Leonard McCoy and the Preservation Council of Pike County, Kentucky

Artist's conception of Sarah McCoy pleading with the Hatfields to spare her sons, August 1882. From
Munseys Magazine
(1900)

The Hanging of Ellison Mounts courtesy of the pike county Historical Society

At the conclusion of the arguments, Judge Barr declared that he could not render a decision at once. The case had no precedent, and he needed to consult constitutional authorities. Before leaving the courtroom, St. Clair drew the attention of the judge to Wall Hatfield, whom he described as an aged man in poor health. St. Clair stated that the confinement and prison food had caused Wall to become ill and that he needed medical care. Barr promised that Wall should have whatever assistance he required.
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On March 3 Barr announced his decision. In essence he held that the question involved a controversy between two states and therefore lay beyond the jurisdiction of his court. Under the Constitution, only the Supreme Court had jurisdiction. He thereupon remanded the prisoners to Kentucky authorities. He rejected a request by Gibson that they be allowed to give bail, holding that the offense with which they were charged was not bailable. Pending a decision as to which jail they should be confined, Barr ordered them locked up for the night.

Before Barr adjourned the court, Andrew Varriey made a request. “Judge,” he said, “I wanna go back to Pike.” When the astonished judge inquired, “Why?,” Varney answered, “Cause, the court thar are gonna be aholden for a week, an' I wanna go back and show I ain't guilty.” Barr reminded Varney, “If you had not made application for a writ of habeas corpus, you would be there now.” Varneys answer was even more astounding than his original remark. “It warn't on my account I were brought here. I didn't know nothin' ‘bout it till I got here.” Barr could only observe, “I wish I had known that before” and try, as did the attorneys, to conceal his bewilderment.

Eustace Gibson-castigated some of the procedures in the case as reprehensible. In an interview with reporters at the Gait House, where he had accommodations, he stated his belief that someone had tampered with some of the prisoners. Moreover, he declared, he did not “think much of either Governor Knott or Attorney General Hardin, both of whom have been contrary and unaccommodating throughout the trial.”
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On Monday, March 5, Wilson, who had returned from a temporary absence from the city, filed an appeal. The argument before Judge Barr became heated, and Wilson asked to be sworn in as an attorney. He tried unsuccessfully to have the letters he had received from Frank Phillips and Perry Cline introduced as evidence, but Knott vigorously protested and Barr denied the request. Wilson based his major argument for an appeal upon the ground that the case must decide whether kidnapping constituted a legal means of arresting citizens, particularly, as he emphasized, when the kidnappers engaged in collusion with authorities of one state to bring to trial persons residing in another. That afternoon Barr granted the appeal and ordered the prisoners held until Pike County officials returned for them.
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Wilson and Gibson bent their efforts toward preventing trial of the prisoners in Pike County and their removal to the jail there, where, they contended, their lives were not safe. The
Louisville Courier-Journal,
in a scathing and ungracious editorial of March 6, maintained that the prisoners would not only be safe in the Pike County jail but that they would receive a fair trial, since “the courts of Kentucky are not apt to convict innocent men.” Referring to an argument in court over responsibility for the costs incurred in conveying the prisoners to Louisville, the editorial repeatedly referred to the “sovereign but impecunious” state of West Virginia and commiserated with the prisoners, who, it asserted, might have to pay their own expenses.