To the Stars: Where the Journey of Law in Kansas Began, 0818 KSBJ, 87 J. Kan. Bar Assn 7, 44 (2018)

AuthorRobert W. Parnacott, J.
Position87 J. Kan. Bar Assn 7, 44 (2018)

To the Stars:[1] Where the Journey of Law in Kansas Began

87 J. Kan. Bar Assn 7, 44 (2018)

Kansas Bar Journal

August, 2018

July, 2018

Robert W. Parnacott, J.


“Too little has been written on the history of the legal profession in Kansas . . . .”[2] Even less has been written on the legal history of the territorial period, which began in 1854 with the passage of the Kansas-Nebraska Act. There are few legal history articles or book chapters that deal solely or even primarily with the territorial period.[3] More often, these materials give only cursory treatment to pre-statehood matters.[4]

Research on the practice of law during this period is difficult because the territorial court records that exist are divided among the Kansas Historical Society and the federal archives | in Kansas City, Missouri.[5] Though scattered, however, these sources are available to researchers, including online at the state historical society website. In addition, the history of the practice of law in the territorial period appears in books, articles, and other materials published on general Kansas history.

The territorial period is where the journey began for the [practice of law in Kansas. This article will focus on Kansas territorial legal history, with some pre-territorial legal history. 'Care will be taken to not repeat matters covered in previously Published KBA Journal or law review articles, except when necessary for context.

Pre-territorial Period

The region that was to become the territory of Kansas w acquired by the United States through the Louisiana Purchase in 1803. Before there was any real settlement of the area other than by Native Americans, no organized legal system would have had much impact. As part of laying the case for slave the first pro-slavery Kansas territorial legislature, in its preface to the 1855 Session Laws, included a recitation of the various state or territorial governmental jurisdictions between 1804 and 1854 over the Kansas Territory’s area, with the point statement: “the institutions of domestic slavery were establish and recognized” in the region that was to become the territories of Kansas and Nebraska.[6]

There may be few records of legal proceedings during this period preceding the Kansas organic act. On the Kickapoo Indian reserve in July 1839, United States soldiers arrested a Kickapoo Indian for killing a Kickapoo blacksmith. The defendant was convicted in April 1841 and sentenced to eighteen months imprisonment and a five hundred dollar fine. But the defendant was “apparently” granted presidential clemency in May 1841.[7]

In August 1842, a merchant and his employees were arrested for transporting alcohol illegally. But after being brought to Platte County, Missouri, for arraignment, the men were released by the magistrate and were not tried.[8] A more serious crime was the robbery, kidnapping, and murder of a merchant on the Santa Fe Trail in April 1843.[9] The defendants were tried in Missouri. Two directly involved with the murder were sentenced to death and hanged in St. Louis in August 1844. A similar crime occurred in March 1847, resulting in the arrests of two Native Americans of the Sac (or possibly the Fox) Nation, although the disposition of the matter is not given.[10]

Four United States Army deserters murdered a Native American traveling companion in late July 1852. One was arrested in Liberty, Missouri, and the others in St. Louis.[11] The case was tried in the United States district court in St. Louis. Two men were sentenced to death, one was acquitted, and the fourth apparently avoided punishment by testifying as a prosecution witness.

The laws of the United States were not the only laws in force in the region in the period after the Louisiana Purchase. At least two tribes that had been relocated to the area, the Wyan-dot and the Ottawa Nations, had written codes of law.12 The Ottawa code had twenty-five laws regarding criminal, civil, and administrative matters. For example, the code included the following regarding alcohol possession: Whisky on the Ottawa land cannot come. If any person shall send for it, or bring it into the Ottawa country, he who sends, or he who brings shall pay five dollars, and the whisky shall be destroyed. Any one sending or bringing the second time, shall forfeit all of his annuity money. For the third offense, he shall be delivered over to the United States officers, to try the severity of the White men’s laws.13

A Wyandot Indian was convicted of murder under the Wyandot code in January 1853.14 He was sentenced to die by firing squad. The prosecutor in the case actually thought that only the lesser crime of manslaughter had been proven.15 But a request for clemency from the president was denied, and the sentence was carried out.16

Extra-judicial Systems

Both before and after the organization of the territorial legal system, other systems were employed for redress of grievances. Most notable were squatter associations and their courts.17 After the territorial courts organized, some of these squatter courts continued to operate. One territorial district court judge ordered a deputy marshal to organize a posse to put a stop to one such court.18 After the posse was met with gunfire, the posse withdrew, but when the posse returned in greater numbers, the squatter court had apparently “adjourned.”19 Other self-help measures included such groups as the “Settlers Protective Association,” formed in the Osage Ceded Lands, which also addressed claim disputes among its members.20

The ultimate punishment was administered extra-judicially during the territorial period, there having been at least twenty-eight lynchings (not including political killings).21 Although political violence is outside the scope of this article, it should be noted that lawyers were not immune from such violence. Most notably, William Phillips—a lawyer—was murdered by a pro-slavery band that included a court clerk and deputy clerk of the territorial district court.22

Military Law

Another legal system in the territory was military justice.23 This system sometimes overlapped with the civil justice system. In 1856, a justice of the peace in Douglas County issued a warrant to arrest a soldier accused of theft. But when the soldier was brought to be examined, a captain accompanied by six soldiers came and “told the prisoner he came to release him, ordered him out of court, took the prisoner away, and dismissed the court.”24 After the governor inquired about the matter, the commanding officer informed the governor that the soldier would be court-martialed instead of being returned to the custody of the civil authority.

The Organic Act

The Kansas Territory’s first code of laws, the 1855 Session Laws, includes as an addendum the text of Congress’s organic act organizing the government of the Kansas Territory.25 The act provided for both supreme and district courts, as well as probate courts and justices of the peace.26 The supreme court was to consist of a chief justice and two associate justices, each of whom was to serve individually as the district court judge of one of the three judicial districts. They were required to reside in the assigned district. The supreme and district courts had both common-law and chancery jurisdiction. Probate courts and justices of the peace were to have only such jurisdiction as the legislature granted.27 The position of a territorial attorney was also authorized.28

The First Territorial Legislature

The first territorial legislature is often called the “Bogus Legislature” because it came to power through a massive pro-slavery election fraud. Once seated, that legislature adopted a code of laws. For the most part, this simply copied the existing Missouri State Code. As a curative, the legislature included a statute that provided that any references to “state” that might have been missed in drafting were to be interpreted as meaning the Kansas Territory.29 Also demonstrating the Missouri influence were the annotations provided to reported Missouri judicial opinions. Finally, to supplement the statutes, the territorial code provided that the common law and statutes of England adopted prior to the “fourth year of James the First”30 also were the law of the territory to the extent that they did not contravene the laws of the United States or the territory.31

Although the actions of the legislature during this time are beyond the scope of this article, under the category of too good a story not to mention, there is a contemporaneous anecdote that captures the legislative Zeitgeist:

The great portion of the [territorial legislature] boarded and lodged at what was called “Jack Thompson’s Restaurant,” . . . . This was a one-story frame building, . . . being divided into three rooms, the principal of which the bar was kept, whilst in the others faro, draw-poker, and other gambling games were played every night and on every Sunday, for the entertainment, if not the profit, of the lawmakers. . . . The dining tables furnished lodging room for a number of boarders, who spread their blankets on them when the dishes were removed. The barroom also provided a number with lodging. This was generally crowded, and immense quantities were here drunk of a most infamous compound of vile drugs, the qualities and character of which were only known to the manufacturer, but which he could safely have warranted to destroy the constitution of the strongest man, in a very limited time, and which “Jack Thompson” and his bar-keepers sold for whiskey at a dime a glass. . . . Late at night this bar-room was covered with a few inches of saw-dust, upon which, as the outsiders withdrew, boarders, mostly legislators, would stretch themselves and fall...

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