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.4
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.”5
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.6
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.
Nearly ten days passed before Perry Cline arrived in Louisville for the prisoners. By then not only had West Virginia refused to bear the expenses of their journey to Louisville, but the United States marshal had also refused to accept responsibility. Cline, therefore, interrupted his plans to go to Frankfort, where he persuaded Governor Buckner to seek a special appropriation from the Kentucky legislature for the costs involved. On March 16 he returned to Louisville and arranged for the journey back to Pikeville.7
While the West Virginians remained in Louisville, Wall Hatfield continued to attract reporters. He steadfastly maintained that not a single man among them had anything to do with the murder of the McCoy brothers. Instead, he fastened the guilt upon Devil Anse and his sons, Cap, Johnse, and Bob, and four or five others. With a sense of humor, he then expressed the wish to one reporter that his newspaper would retract a printed report that Wall had seven wives. “I ain’t never had but one,” declared Wall, “and I don’t want any more.”8
After some disagreement over whether the appeal of the habeas corpus case should go directly to the United States Supreme Court, Judge Barr ruled that it should follow regular procedure and be heard in the United States Circuit Court. With the prisoners no longer on hand, the case presented in the Circuit Court before Judge Howell E. Jackson had little of the drama of that heard in Judge Barr’s court and attracted relatively little attention.
On April 5 Eustace Gibson opened the testimony by reviewing the evidence presented at the earlier trial. He again emphasized the wrongs done the prisoners thr
ough their illegal seizure, which constituted a violation of the Constitution of the United States. Knott admitted that the West Virginians had been taken from their state illegally, but he denied that the mode of their apprehension in any way affected the legality of their arrest once they were in Kentucky. He declared that the arguments of the opposing counsel seemed to imply that “the Constitution of the United States was drawn expressly to give each state the power to harbor criminals.” Governor Wilson even alluded to the possibility of war between two states. Hardin expressed no desire to speak. Judge Jackson, who had to remind all the speakers to confine their remarks to the issue in question, granted the appeal of the case to the United States Supreme Court.9
On April 13 Gibson and Knott, who had served together in the United States House of Representatives, arrived in Washington to present the cases of their respective states. The attorneys succeeded in having the Supreme Court advance the case, know as Plyant Mahon, appellant v. Ahner Justice, jailer of Pike County, Ky., on the docket and began their arguments on April 23. Speaking for one hour and thirty minutes, Gibson held that the “taking and holding” of Mahon (and inferentially of the other eight men) “was one continuous act by the same officers of the State of Kentucky,” and “the act 01 Phillips in capturing and Cline in locking up in jail without warrants of mittimus, were both wrongful acts of the State of Kentucky.” Knott, who spoke for only about twenty minutes, maintained that the question was one of law and in no way a case between the states. Had it been, West Virginia should have instituted her suit in the Supreme Court, which had original and exclusive jurisdiction, and not in the District Court.10
A reporter for the Wheeling Intelligencer noted a general opinion that West Virginia’s procedures had been “wrong from the beginning” and that Wilson had “applied at the wrong shop for redress.” West Virginia, it was feared, might be “kicked out of the Supreme Court on the question of form, without reference to the merit of her case—and it is conceded that the merit was great.” The reporter cited a common belief that if the case came before the Supreme Court in proper form the West Virginians would win their freedom, although they might later be rearrested under legal circumstances.11
The Supreme Court, in an opinion presented by Justice Stephen J. Field, upheld the judgment of the lower court. The opinion held that although the arrest and abduction of Mahon (and, of course, the others) were “lawless and indefensible acts,” the “authority from the Governor of Kentucky furnished no ground for charging any complicity on the part of the State in the wrong done to the State of West Virginia.” The opinion maintained that no legal means existed whereby a person accused of a criminal offense in one state could be turned over to authorities in another state except through positive law on the subject.12
Justices Joseph P. Bradley and John M. Harlan offered dissenting opinions in which they stressed the view that the court should have recognized the invasion of West Virginia by Kentucky. Bradley expressed the opinion that the writs of habeas corpus had been properly issued and that Mahon (and the others) should have been discharged and permitted to return to West Virginia. He further declared that Mahon “was kidnapped and carried into Kentucky in plain violation of the Constitution of the United States, and is detained there in continued violation thereof.” He held that the Constitution “clearly implies that there shall be no resort to force” for the purpose of apprehending persons charged with crime and fleeing into another state and that it had, in fact, “abrogated, and the States have surrendered, all right to obtain redress from each other by force.”13
Once the Supreme Court rendered its decision on the arrest and confinement of the West Virginians, attention reverted to the prisoners themselves and to others who had been indicted for the McCoy murders but remained at large. That the men confined in Pikeville would be brought to trial and that Kentucky authorities would redouble their efforts to apprehend those still at large was a foregone conclusion.
11
HAWKSHAWS IN THE HILLS
DURING THE WEEKS following the decision of the Supreme Court, detectives arrived in Kentucky and West Virginia from all parts of the nation. They hoped to collect the rewards offered by Kentucky for the Hatfields and by West Virginia for the McCoys, which by the summer of 1888 totaled almost eight thousand dollars. Some of them aspired to the fame that might come from capturing the principal feudists, particularly Devil Anse.
The wily mountaineers took precautions against capture by ambitious and unscrupulous detectives. None did more to insure his safety than Devil Anse. Shortly after the attack on the McCoys on the night of January 1, 1888, he purchased two tracts of land, of 200 and 250 acres, on Island Creek, a tributary of the Guyandotte River.1 He built a cabin near present Stirrat, West Virginia, about midway between his old home near the mouth of Peter Creek and present Logan. He chose a site in a narrow valley between two ridges that extended down the highest mountain between Logan and the Kentucky border, a location so isolated that “people with no business there knew instinctively that they should stay away, and those whose duties called them to the lonely valley went in trepidation/2
In withdrawing from his lands along the Tug Fork, Devil Anse made a major concession to the reduction of tensions, but he had no intention of surrendering to Kentucky authorities. Some distance from his cabin he erected another structure designed as a fortress for use in case the McCoys sought further retaliation or legal authorities or detectives tried to take him and his supporters by force. Built of twenty-three-foot logs almost two feet in diameter, the building had only one entrance, with a massive solid oak door nearly twelve inches thick and capable of stopping bullets of the most high-powered Winchesters. Portholes in all walls enabled defen: ders to fire in any direction. Devil Anse stocked the fort with adequate food and water, as well as sufficient fuel for the large fireplace, against the time when he and his friends might have to take refuge there and endure a long siege.3
Devil Anse formed a cadre of well-armed men prepared to assemble at the fort on short notice. They included Cap, who had returned from a trip to the western states, which he had involuntarily taken following the battle of Grapevine Creek. Devil Anse also laid in a supply of arms and ammunition, newly purchased from the manufacturers. Although his purpose was purely defensive, news of the purchases aroused fears in Pikeville that the Hatfields might attempt a rescue of the prisoners in jail there. Captain CM. Parsons of the Buckner Guards, Pikeville’s newly organized militia unit, appealed to Kentucky Adjutant General Sam E. Hill for aid and received in response a generous supply of ammunition.4
Meanwhile, West Virginia authorities took legal initiatives of their own. At its spring term of 1888 the Logan County Circuit Court indicted Frank Phillips, Deputy Sheriff John Yates of Pike County, Bud McCoy, James McCoy, David Stratton, and twenty-three others for the murder of Jim Vance. Governor Wilson promptly offered rewards of five hundred dollars for Phillips and one hundred dollars each for the other twenty-seven men. During the summer of 1888 most of those under indictment in both Kentucky and West Virginia remained in hiding in the woods and left the care of their farms to their women and children.5
Both the Hatfields and the McCoys held the detectives in contempt. The editor of the Louisa East Kentucky Magnet voiced a commonly held opinion that it did not matter to them “whether they arrest a McCoy or a Hatfield just so they see a few dollars in the transaction.” He proposed, “Hang the detectives, drive off all who are not residents, and those most concerned will soon find that it is safe and profitable to attend to crops and get their timber ready for the spring rains. Offer rewards for the detectives, and enough honest Hatfields and McCoys will unite to clear the country of them in less than two weeks. When the Hatfields and McCoys realize the injustice that is done them, and the opinions held in regard to them by the outside world, and all brought about by the workings of detectives, they will make it so hot that, if any of them (the detectives) escape, they will bury their bought badges and swear that they never
heard of the Big Sandy country.”6
On June 1, 1888, Captain Alfred Burnett of the Eureka Detective Agency and two assistants left Charleston, West Virginia, for the Tug Valley. The primary object of their journey was the arrest of Dave Stratton, who had been with Frank Phillips at the time of the killing of Bill Dempsey. The detectives proceeded to the mouth of Pigeon Creek, a West Virginia tributary of the Tug Fork, and from there to Blackberry Creek, on the Kentucky side. Two of them called at the house of Stratton at the mouth of Knox Creek and learned that he was flatboating. They combed both sides of the Tug and about daybreak on June 22 found Stratton asleep on a sandbar just inside the West Virginia border. They approached him with great stealth, and when they were near him one of them leaped astride him and pushed the barrel of his revolver against Stratton’s head. Resistance being useless, Stratton surrendered peacefully. The detectives took the Winchester rifle and the Colt revolver, which he carried, and escorted him to the Logan County jail.7
Most of the detectives had no encounters with the feudists, and many of the rumors emanating from the Tug Valley probably grew out of efforts to cover up their lack of success. One of the stories involved a man known as William L. Minyard. Reputedly from the Indian Territory, Minyard dressed in im itation of Buffalo Bill Cody and called himself “Wild Bill.” He claimed that he concentrated his efforts upon the capture of the McCoys and that on one occasion he barely escaped capture himself by hiding in a hollow log while Frank Phillips and a band of McCoys searched all about for him. Unfortunately for him, he was arrested on charges of peddling moonshine, which he contended in vain was part of his plan for taking the McCoys.8
The Hatfields and the McCoys Page 10