The plan for a court system in Kansas Territory followed a system well established in earlier territories. Three levels of courts were set up-- appellate, general original jurisdiction and limited original jurisdiction. Section 27 of the Kansas-Nebraska Act called for a Supreme Court with a chief justice and two associate justices appointed by the President. These three judges meeting en banc constituted the appellate court of the territory. The territory was to be divided into three judicial districts by the Governor and each of the appointed justices would preside in courts of general jurisdiction in one of those districts. Probate courts and justices of the peace were also contemplated, with jurisdiction to be set by the Legislature in the future, except that justices of the peace would not have jurisdiction when title to land or boundaries of land were at issue, or when the amount in dispute exceeded One Hundred Dollars. [McCahon Reports,iv]
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Samuel D. Lecompte (1814-1888) Chief Justice until 1859, he practiced law in Leavenworth for many years after leaving the bench. |
President Pierce appointed Samuel D. Lecompte of Maryland as Chief Justice and Rush Elmore of Alabama and Saunders W. Johnston of Ohio as Associate Justices. The three justices convened their first district courts in March and April 1855, and set court days in each county of each district once each year thereafter. [Wilson, How the Law, 32] There is no record of how well they functioned during the pro-slavery era, but Governor Geary complained in 1856 of excessive delays and unwarranted dismissals. [KHC 3:555]
Governor Reeder created sixteen justice of the peace districts and began appointing JP's in November 1854. [KHC 3:237] The Bogus Legislature created a probate court in each county with a probate judge who was also the chief county commissioner. After some debate in the Legislature, an advisory opinion was sought from the Supreme Court whether the Legislature could give the probate courts full general jurisdiction, concurrent with the district courts. [McCahon Reports,vii] The question was not answered, and concurrent jurisdiction was not given. Probate judges were given the power to issue writs of habeus corpus but not to hear a case, which was deferred until the "next term of the district court." Governor Geary criticized that provision as a suspension of "the great writ of liberty" contrary to the letter and spirit of the Constitution. [KHC 4:681]
Although the Kansas-Nebraska Act contemplated a four-year term for Supreme Court appointees, President Pierce removed Justice Johnston and Justice Elmore in August 1855. The stated reason was that the justices, along with Governor Reeder, had engaged in improper land transactions with "Kansas half-breed Indians." However, there may have been other political considerations. [Wilson, How the Law, 31] The Bogus Legislature jumped into the fray, passing a resolution denouncing the President's decision, after the House voted down an amendment that would have softened the Council's version, removing the word "flagrant" in its description of Pierce's action. [House Journal, 270 ff.]
When the Supreme Court next met, at Lecompton in December 1855, two new justices appeared with commissions from President Pierce. Old justices Johnston and Elmore denied the power of the President to issue the commissions, and claimed they were entitled to occupy the positions of associate justices by virtue of their existing commissions, until the expiration of a term of four years. It was left to the Chief Justice to decide. Lecompte:
"...without deciding or professing to decide the question of the power of the President, in this respect, stated it as his opinion, that he ought to be governed by the commissions of the President....he could but recognize these gentlemen (Burrell and Cato) as associate justices, de facto, and as such entitled to occupy seats on the bench." [McCahon Reports, ix]
One early free-state settler, writing in 1893, remembered how little attention was paid by Kansans to the justice system created by the Bogus Legislature:
"....From the spring and summer of 1854 to the establishment of a legitimate territorial government by the success of the free-state men and actual settlers in the elections of 1857 and 1858, the territory was practically without law and legal machinery, aside from the territorial judges and marshal appointed by the president; yet, aside from the invasions from Missouri, life and property has never been safer in Kansas than then. There were but few offenses by resident citizens, and these were promptly and impartially dealt with by the assembled citizens of the neighborhood, without calling upon the bogus officials." [Wakefield, Squatter Courts, 74]
Any judgment of the effectiveness of courts in "Bleeding Kansas" must take into account the troubled times. Justice Pettit of the First Judicial District had before him a complex interpretation of the Fugitive Slave Act. (US v Weld, April Term, 1860) In the last paragraph of his opinion, Pettit writes in an understated way:
"This opinion has been hastily written in the midst of turmoil, interruption and confusion--in the absence of a library to consult, and without time to correct or pay much attention to legal diction, but I am confident that, in its main features, it will stand the test of the most searching and rigid legal and judicial criticism. The motion to quash (the indictment for aiding and assisting the escape of a Fugitive Slave) is sustained." [McCahon Reports, 196]
