by Dean King
Devil Anse was still living in the woods, where he felt at home—no matter how bad the weather—and where he always managed to thrive. He had a knack for acquiring large tracts of land through atypical means, and he soon put that skill to use again. This time the source was Lewis “Old Hawk” Steele, a bearded and long-haired rover with a divot in his upper lip that spoke of his wild ways, and the tract in question was on Main Island Creek, not far from Logan Courthouse and safely back from the Kentucky line. Steele now bartered away his hereditary five thousand acres, loaded with valuable hardwoods, for a percentage of the return on Devil Anse’s timbering of the property.14
Across the Tug, as the interstate legal wrangling grew more heated, the Hatfield prisoners became a political and financial hot potato, their status a media obsession. On March 16, Perry Cline returned to Louisville to take custody of the jailed men. He had been in Frankfort asking Governor Buckner to help him secure funds to pay the bill for their transportation to Louisville for the trial as well as to cover the costs of their imminent return trip and their upkeep. The tab already exceeded nine hundred dollars. Buckner assured Cline of his support.
Cline planned to set out with the accused on the 450 -mile journey at six in the morning on March 17. The first leg, by rail, would take them back to Catlettsburg. After that, the party would board a boat up the Big Sandy to Pikeville, a distance of about sixty miles. With expenses accruing, Cline hired only three guards for the nine inmates, but he was unworried. “I do not anticipate the least trouble,” he told the Courier-Journal, “but if we should have any we will be prepared.”15
“We are sure we will be released on bond, and we have overwhelming evidence to prove our innocence,” Wall told the same reporter. “The men who really did the deeds have not been arrested at all.” When asked who murdered the three McCoys, Wall blithely answered, “Well, my brother Anderson and his three sons, Robert, Johnson and ‘Cap’ Hatfields [sic] and four or five others. They are all bad men.” Wall, being a justice of the peace, had decided to trust not in his clan but in the justice system. Indeed, he had broadcast his independence of the clan by offering to turn himself in, and now he had taken another step in naming his brother and his nephews. He wanted only to clear his name and return to life as the respectable, law-abiding citizen that he considered himself.16
Wall also tried to clear up his reputation in another regard: “I wish you would contradict the statement that I have seven wives. I have never had but one,” he deadpanned, “and… I don’t want any more.” 17
ON FEBRUARY 10, Devil Anse and Vicey had added another Hatfield to the hollows. They named their new son Emanuel Willis Wilson, in honor of the governor, who was proving to be a faithful friend. Like a lot of kids in the Tug Valley, Willis was born with ready-made playmates—a plethora of his own nephews and nieces.
Around the beginning of April, after the last frost, Devil Anse and Vicey set up their new household on Main Island Creek, deeper in the hills, where detectives and the McCoys would have a hard time disturbing them. That summer, New York Sun reporter John Spears would poke his head inside Devil Anse’s old house on the Tug, which sat abandoned but still intact. Over the fireplace, he noted, hung “a gaudy lithograph motto, which read: ‘There is no place like our home.’ ” But Spears apparently was not the first visitor to the dwelling; another had taken a lead pencil and scrawled beneath the carefully colored letters: “Leastwise, not this side of hell.”18
At his new abode, Devil Anse prepared as if the devil proper might choose to pay him a visit. He began building an endgame log bunker, using twenty-three-foot logs that were almost two feet in diameter. It would be a massive, windowless structure, a sturdy, squat fortress that he and his brothers and their sons and friends could defend against a small army. The door was made of solid oak.19
Meanwhile, Randall and Sally reluctantly came to the conclusion that they could not move back to their farm, the home that Sally had inherited from her father before the war and where they had planned to be buried, alongside their children who had died in the feud. Sally was too feeble to move back. Randall was depleted mentally and physically. And with the Hatfields angrier than ever, the threat of violence there was undiminished. The McCoys would sell their farm the next month.
By WEDNESDAY, April 18, Eustace Gibson was in Washington, DC, seeing to the printing of the legal brief he planned to present before the Supreme Court the following Monday. In it, he maintained that the men who had captured and kidnapped the West Virginians in question were Kentucky officials and that the state had thus violated their constitutional right to liberty.
On April 23 and April 24, Mahon v. Justice was argued, Justice being Abner Justice, the Pike County jailer. Opening for West Virginia, Gibson took ninety minutes, out of an allotted two hours, to make his case; speaking for Kentucky, Proctor Knott took up only twenty minutes of the court’s time.20
Despite the brevity of the argumentation, its result would stand the test of time. Mahon v. Justice would be cited in no fewer than a dozen cases over the next century, helping to maintain order and civility in interstate jurisdictional disagreements and to establish the right of a court to jurisdiction regardless of how a defendant arrived in its midst.
On May 14, Justice Stephen Field, an 1863 Lincoln appointee from California, delivered the opinion of the court, declaring that since the states’ sovereignty was limited by the federal Constitution, they could not authorize reprisals on other states. If law violators escaped from the state, their surrender could be secured only by a proper demand on the executive of the state to which they had fled. But, said Field:
No mode is provided by which a person unlawfully abducted from one state to another can be restored to the state from which he was taken, if held upon any process of law for offense against the state to which he has been carried. If not thus held, he can, like any other person wrongfully deprived of his liberty, obtain his release on habeas corpus. Whether Congress might not provide for the compulsory restoration to the state of parties wrongfully abducted from its territory upon application of the parties or of the state… are not matters for present consideration…. No means for such redress through the courts of the United States have as yet been provided.21
The arrest and abduction of Mahon were illegal acts, he continued, for which Phillips could be punished under the laws of West Virginia. However, the process emanating from the Kentucky governor gave no reason for charging complicity in the wrong done to West Virginia. For the case at hand, then, the only question for the court to decide was whether a person indicted for a felony in one state and abducted from another by parties acting without the proper authority was entitled to be released because of the illegal abduction.
West Virginia had contended, he noted, that the appellant had been held in violation of the constitutional provisions for extraditing fugitives from one state to another but also of the Fourteenth Amendment, which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law.” As to the latter, the court argued, it was difficult to see how it bore upon the subject, since Kentucky had passed no law infringing on these rights or authorizing the abduction of the prisoner. The law enforced by that state was for murder.
As to acquiring the fugitive in an extra-constitutional manner, it was unclear how that pertained to his being held by the state in which the crime was allegedly committed; the jurisdiction of the court was not impaired by the manner in which the accused was brought before it. Among the many precedents to support this, Justice Field noted, English courts had customarily focused on a defendant’s presence before the court and showed little concern for the method of his apprehension.22
Precedent had established that no extradition treaty entitled a fugitive of the United States to asylum in another country. Field now extrapolated that because under the law a fugitive from an
other state could, upon proper proceedings, be surrendered to the state where the crime was committed, he had the right of asylum in the state to which he had fled unless removed appropriately. Thus, even with the illegal mode in which the defendant was brought from another state, no constitutional right was violated by his arrest and imprisonment in Kentucky.
Two of the justices dissented. Joseph P. Bradley, a Grant appointee from New Jersey, wrote the dissent, and John Marshall Harlan, a Hayes appointee from Kentucky, no less, concurred. In Bradley’s opinion, “the writ of habeas corpus was properly issued,” and Mahon, having been kidnapped and carried into Kentucky in a clear violation of the Constitution, should have been returned to West Virginia.
Bradley and Harlan’s variance notwithstanding, the Supreme Court upheld the decision of the lower court. Kentucky had won. West Virginia had lost. Both states, however, would feel the repercussions.
Chapter 18
The Lawmen
1888
In the South and the West in the late nineteenth century, if a man was not carrying a firearm, he was likely carrying a knife. And if he ever did find himself in need of a gun, it could easily be procured in just about any house, office, or store. The Louisville Courier-Journal ran a regular front-page crime column detailing homicides ranging from Mexican bandits shooting ranchers in Texas to a gang of Kentucky men from respectable families gunning down a young woman in her doorway for no apparent reason. Though there are plenty of crimes committed by psychopaths or outlaws, what draws one’s attention in this record is the remarkable number of murders of honor—some of which were retaliations in long-standing feuds.
To be sure, there was abject depravity. In early March came news from Springfield, Ohio, of a man named Anderson Merrit who had murdered his wife with a club. Having long ago sired a baby by her sister, who was now married to his brother, Merrit took up residence with this daughter and her husband, drove off the husband, and “eloped” with his own daughter. But for every jaw-dropper like that, there was a slaying where personal or family honor was at stake.
Even a quarter century after the Civil War, reprisals from that era were not unheard of. Also in early March, at Logan Courthouse—back in the heart of Hatfield-McCoy territory—Uriah Buskirk was sitting with several other men in the drawing room of the Dejarnette Hotel when John Thompson, the constable who had been with the Hatfields at Grapevine Creek, stepped up on the hotel porch, took aim through the window, and shot Buskirk in the left side of the chest, mortally wounding him. Twenty-six years after Buskirk had killed Thompson’s father in the same hotel during the war, Thompson avenged the death.1
GIVEN THE ONGOING LACK OF local legal authority and the inadequacies of the sheriff-constable system, private detectives had to fill the law enforcement void. Many were ruffians, scarcely more scrupulous than the men they were pursuing. Some few, however, like Alf Burnett, whom Dan Cunningham had joined forces with in Jackson County, had made a reputation for being competent, respectful of the law, and fearless and were often retained by local and state officials to tackle high-profile cases.
Burnett’s services were in such demand that in 1878 he and several partners had formed Eureka Detectives in Charleston, West Virginia, the “first agency of the kind South of Mason and Dixon’s line,” for the purpose of “detecting, arresting and bringing to justice” anyone charged with or suspected of committing a crime. Burnett took the title of superintendent, while twenty-eight-year-old William Baldwin, one of Burnett’s most trusted and capable agents (who would later go on to form the famous Baldwin-Felts agency), became secretary. Eureka quickly grew to be one of the most formidable private law enforcement agencies anywhere. By 1890, it would amass 1,200 arrests, including 334 for felonies.2
It was dangerous work, to be sure. Burnett’s wife, Fanny, had no misconceptions about that, and while encouraging her husband to do the work he was clearly meant to do—pursuing the most nefarious men in the land—she held on to a hefty life insurance policy that if need be would see her through her days. As a reminder of the risks, Burnett had a purple groove tattooed across his scalp from a close call on an early job, one that had cemented his reputation for tenacity. He had been pursuing a clever gang of store robbers in a county northwest of Charleston and had tracked down seven of the outlaws but lacked the evidence to make a conviction stick. Rebuffed in court three times, he finally discovered their hideout and loot stash, giving him the proof he needed, but by then, the gang had taken to the deep hills. Undaunted, Burnett tracked the ringleader, Perry Wetzel, and a henchman to a remote forest hut. The pair emerged occasionally to be fed at the nearby cabin of one of the gang members. Burnett lay low, learning their rhythms and signals. Silver wood smoke rising from the chimney meant “come in, no danger”; inky coal smoke, the contrary. One morning, just after dawn, silver smoke drew the two robbers to the cabin. As Burnett and a partner crept across a bald patch to the hut, a woman fetching water saw them and yelled out a warning to the men inside.
Wetzel sprang from the front door, firing at Burnett; it was this shot that seared his scalp. Burnett dodged more slugs from Wetzel’s revolver and squeezed the trigger of his double-barreled shotgun. The first barrel fired; the second failed. Burnett coolly extracted the charge, loaded it in the other barrel, and fired. The shot pierced Wetzel’s nose and peppered his body, but he managed to flee. The relentless Burnett tailed him all the way to Kentucky. Finally, Wetzel surrendered, and Burnett brought him back in handcuffs to serve nine years in prison. He would ultimately send the other six thieves to prison too.3
THE UNINTENDED RESULT OF THE Supreme Court decision in Mahon v. Justice was to create an open season in West Virginia on any man wanted by the State of Kentucky, and in Kentucky on any man wanted by West Virginia. Private detectives and bounty hunters could now depend on a payday if they could bag a wanted man, get him across the state line, and turn him over to the sheriff of the appropriate county.
In West Virginia, twenty-eight Pike County men were wanted for the kidnapping of the nine West Virginians as well as for the murders of Jim Vance and Bill Dempsey. The state offered a $100 reward for the arrest of each of the Kentucky kidnappers except Frank Phillips. He commanded $500, and the Hatfields promised to match that with another $500. That put the price on his head midway between Kentucky’s offer of $700 for Devil Anse and $1,250 for Cap. Johnse, at $700, and Elias, at $500, also had valuable heads. Most of the other indicted West Virginians carried a $100 reward, and Governor Buckner promised an additional $500 for each man proven to have taken part in the attack on Randall McCoy’s homestead.4
Combined, the two states were offering some twelve thousand dollars’ worth of rewards. “Detectives” from around the region arrived to hunt down men on both sides of the Tug River. For some time after the New Year’s Day raid, the Hatfields had kept a low profile, and no one else had been arrested. Slowly they emerged again from the deepest recesses of southern West Virginia, appearing in public with guarded freedom. Seeing Devil Anse and Cap back in their homes unharassed, Bill Tom Hatfield came out of hiding, but unlike his cousins, he grew careless. Officers lured him to the Tug by having a man pretend to befriend him and invite him to come along on an adventure on the river. At a prearranged spot, the men surrounded and disarmed Bill Tom, but before they could carry him across the river into Kentucky, news of his capture spread. Twenty-eight-year-old Newton “Doc” Keadle, the sheriff of nearby Williamson, summoned a posse and started in pursuit. A stocky, commanding six-footer with pale hair and blue eyes, Keadle was known to be a decent man. He rarely carried a gun, and in this case he prevented a bloody encounter by prevailing upon the Kentuckians to release Bill Tom. It was only a temporary reprieve for the captive, however, who lacked a measure of discretion. He was caught again later that year and would eventually be convicted for his role in the murder of the McCoy brothers.5
Nevertheless, from the start, West Virginia seemed to have the advantage, in large part because the Eureka Detectives, w
ith their potent combination of doggedness, guile, and brute force, happened to be located on that side of the river. As citizens of the state, the Eureka agents naturally had their designs on Bad Frank. After Johnse fled to Colorado to ride out this treacherous time, they asked Nancy, who conveniently knew how to read and write, to help them ensnare Bad Frank. With the approval of the Hatfields, she moved back across the Tug to her mother’s house on Peter Creek. It did not take her long to seduce the lawman.6
Though Bad Frank had been unable to lay hands on Johnse, he undoubtedly took perverse pleasure in laying hands on Johnse’s wife. While he was enjoying Nancy’s company, living with her along with her mother in their one-room cabin, she was secretly dispatching weekly letters to Alf Burnett, informing him of Bad Frank’s whereabouts and activities as well as passing on any information she could glean about other indicted Kentuckians.
Somewhere along the line, however, Bad Frank discovered that Nancy was informing on him—and he turned the tables. Now, instead of ratting on Bad Frank, Nancy became his mistress. The following year she had a baby by him, a girl, Elsie. Bad Frank was still married to his wife of eight years, Mary, the mother of his first two children, but both Mary and Nancy would give birth to several more of his children in coming years.7
ON FRIDAY, JUNE 1, 1888, Alf Burnett and his partner Tom Campbell rode out of Charleston, heading southwest. Their intended prey was Dave Stratton, a thirty-five-year-old Logan County native and the political adversary of the Hatfields who had the showdown with Devil Anse over the Altizer-Floyd election. He now lived on the Kentucky shore and was one of Bad Frank’s posse. Otherwise, there was a sudden dearth of targets: many of the Kentucky posse at Grapevine Creek, including Frank Phillips and John Yates, had been locked up in the Pike County jail for the illegal shooting of some outlaws from Letcher County. Because of the uproar created by the jailing of these community guardians, who were considered heroes by many, the Pikeville sheriff was in a state of high alert, with sixty armed men on patrol. It was the vigilantes’ good luck to be in jail, however, on the day the Eureka detectives hit the area.