Law on the Frontier: The Lincoln County War

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Law on the Frontier: The Lincoln County War

The Lincoln County War. In 1878 a “war” erupted in Lincoln County, New Mexico Territory. Gen. Philip Sheridan, a Civil War hero, observed that “the population of that section is divided into two parties, who have an intense desire to exterminate each other . . . It is said that one of these parties is made up of cattle and horse thieves, and the other party of persons who have retired from that business.” In Lincoln County, as in other western areas during this period, the legal system ceased to function because impartial authority could not be maintained; it seemed that nearly everyone had a vested interest in whatever dispute plagued the community. The area was perfect cattle country, and in 1866 John Chisum, a Texas cattleman, found a ready market for his beef: the federal government, having placed the Navajo and Apache on reservations, needed to feed them, as well as the soldiers fighting on the northern plains. Chisum became the undisputed cattle king of New Mexico, and some said he had the largest I single cattle herd in the country.

Competitors. Chisum’s cattle herd was the county’s largest economic enterprise. (Some said that rustling from Chisum was the second largest.) His most important competition came from the trading house of L. G. Murphy & Company, popularly known as The House. Lawrence Murphy founded his company in 1873 and sold land and goods to small ranchers and farmers and then bought their produce, including cattle. He also had a government contract to supply the nearby Mescalero Apache reservation with foodstuffs and farm equipment. This was a lucrative arrangement for Murphy and the Indian agent on the reservation because they connived to overbill the federal government and pocket the difference; moreover, the supplies they sold to the Indians were second-rate. Murphy used his economic position for political leverage and was elected a probate judge. However, he was forced to resign in 1875 when it was learned he had used the county’s taxes to pay personal debts. Two years later Murphy sold his share of The House to James J. Dolan and John Riley, who did not realize that the company was nearly bankrupt.

THE DALTON GANG

The Daltons of Coffeyville, Kansas, were one of the most notorious outlaw groups in the American West; they were cousins of the Younger brothers, who rode with Frank and Jesse James. Ironically four of the Dalton brothers had experience in law enforcement before turning to crime. Frank Dalton was one of Judge Isaac Parker’s deputy marshals in the Indian Territory. In 1887 he was shot and killed trying to arrest three whiskey peddlers. Parker then appointed Frank’s brothers Bob and Gratton as deputy marshals. Emmett Dalton worked on a ranch but sometimes would help his brothers by serving on a posse. As law enforcement officers the Dalton brothers were known for being ruthless and fast with their weapons: having lost a brother to outlaws made them wary of giving chances.

The pay for deputies was abysmal: two dollars for arresting a suspect and bringing him in to Fort Smith, and, if the deputy kept his receipts, six cents a mile for expenses. A successful arrest might earn a deputy forty dollars; and unsuccessful one, as the Daltons knew, could cost him his life. Disenchanted with the legal system, the Daltons decided to switch sides. They stole some horses and then headed for California.

In California the three Dalton boys joined their brother Bill, and in February 1891 they robbed a train in Tulare County, killing a fireman. While Bob and Emmett fled to Oklahoma, Bill and Gratton were caught. Bill was acquitted, but Gratton received a twenty-year jail sentence. He quickly escaped from the prison train and joined Bob and Emmett in Oklahoma, where they planned one of the most daring robberies in American history. Along with two henchmen, the Daltons planned to rob two banks simultaneously, and in their own hometown.

The people of Coffeyville recognized the Daltons and suspected the worst when they rode into town on 5 October 1892. While the brothers and their accomplices were robbing the banks, getting $11,000 from one and 120,000 from the other, armed citizens gathered outside. When the gang emerged, the citizens and sheriffs deputies began firing. In the ensuing ten-minute gun battle, eight people died, four on each side. Among the dead in front of the bank were Marshal Charles Connelly and Bob Dalton, Gratton Dalton escaped, badly wounded, but died a mile outside of town. Emmett Dalton was the sole survivor of the gang. He was captured and sentenced to life in prison. In 1906 he was paroled, and he lived the rest of his life quietly, dying in 1937.

Source: Paul Trachtrnan, The Gunfighters (New York: Time-Life Boob, 1974).

The War Begins. Alexander McSween had been Murphy’s lawyer and knew about the precarious financial status of The House. He decided to compete and contacted Chisum, who was looking for investments, as well as John J. Tunstall, a twenty-four-year-old Englishman full of romantic notions about the American West. The three men pooled their resources and opened a general merchandise store under Tunstall’s management in Lincoln, the county seat. In the ensuing conflict, many farmers and small ranchers became caught in the middle. While some resented Chisum for his monopoly on cattle, others detested The House for its harsh credit terms. The spark that ignited the war occurred when “the Boys,” a group of rustlers led by Jesse Evans and allied to the Murphy-Dolan-Riley faction, stole some of Tunstall’s horses. Sheriff William Brady, a House ally, reluctantly arrested Evans and his gang, but they quickly “escaped” from the county jail.

The Murder of Tunstall. The House faction controlled Lincoln County’s political and legal structure and arranged for McSween to be indicted for embezzling $10,000 from one of Murphy’s business associates. In January 1878 Sheriff Brady arrested McSween and seized his home. Meanwhile, Brady sent a posse, or a group of armed citizens, to Tunstall’s ranch on the pretense of recovering stolen horses and cattle. They found the Englishman alone on the range and killed him; among the posse members was Jesse Evans.

The Law. In Lincoln, Justice of the Peace John B. Wilson issued warrants for the arrest of Brady and the posse. A group of Tunstall supporters, armed with these warrants and supported by troops from Fort Stanton, rode into town and tried to serve the warrants. Brady refused to recognize the legality of the Tunstall posse and arrested three of its members, including a young drifter named William H. Bonney, soon to be known as Billy the Kid. On 1 March, Justice Wilson made Dick Brewer, a former Tunstall employee, a constable with the authority to arrest Tunstall’s murderers. Brewer’s posse included Bonney and nine other men who called themselves the “Regulators.” Meanwhile, Gov. Samuel Axtell paid a brief visit to Lincoln after receiving alarming reports about the disorder there. He issued a proclamation revoking Wilson’s commission as justice of the peace. This meant that Brewer’s commission as constable was void, and the Regulators were not a legitimate law enforcement group. Only Sheriff Brady was considered to be the legal authority in the county. Nevertheless, the Regulators managed to capture two of Tunstall’s murderers. Rather than turn them over to Brady, who would let them escape, Bonney shot both men.

International Pressure. In Washington, D.C., British minister Sir Edward Thornton wrote to American secretary of State William Evarts, demanding to know what had happened to Tunstall. Thornton had learned that warrants for the arrest of Tunstall’s killers had been given to a constable rather than to the sheriff because the sheriff was “indirectly connected with the murder” and had in fact arrested members of the posse who had tried to serve the warrants. Two weeks later Thornton wrote that the murder “was incited by the District Attorney. . . and that the murderers are being screened or attempted to be screened by the Governor of the Territory and the Judge of the District.” The British minister wanted to know what the U.S. government would do about this. Secretary of State Evarts referred the matter to the Justice Department, which sent a special investigator to New Mexico to look into this web of corruption and murder.

Grand Jury. On 1 April a grand jury was to meet in Lincoln to look into Tunstall’s murder and the embezzlement charges against McSween. All of the principals were in Lincoln, including the Regulators and the Brady posse. As Brady walked to the courthouse, Bonney shot and killed him and then fled with the other Regulators before troops from Fort Stanton could arrest them. The court hearing was postponed until 13 April when the presiding judge, an ally of The House faction, pressed the panel to indict McSween. The grand jury, nonetheless, dismissed the charges against McSween but indicted Evans and four others in Tunstall’s death. The grand jury also indicted Bonney and three other Regulators for Brady’s murder.

Dudley’s Actions. On 17 April a group of ranchers killed Brewer and captured two other Regulators. The new sheriff in Lincoln, John Copeland, then asked the commander of Fort Stanton, Lt. Col. Nathan A. M. Dudley, for military protection of his prisoners. Dudley refused to help until warrants had been issued for all the Regulators. Though Dudley credited himself with restoring order, in fact he had undermined the existing legal structure. The sheriff had been made subservient to the military, and a justice of the peace was forced to issue warrants in violation of the Fourth Amendment to the U.S. Constitution. A military lawyer examining the matter determined that Dudley had acted improperly, and in summer 1878 Congress passed a law forbidding soldiers from acting as posse comitatus (a body of persons summoned by a sheriff to assist in preserving the public peace.) In Lincoln County, Sheriff Copeland released his prisoners, telling everyone to go home. Governor Axtell then replaced the sheriff with George Peppin, a former meat cutter for the Murphy store.

A New Sheriff. Peppin promptly moved against the Regulators. Many questioned his authority because the office of sheriff was an elected post and Peppin had been appointed by the governor. Peppin hired a group of Texas vigilantes who ransacked the town of San Patricio. The ranks of the Regulators swelled, as they seemed to be the only protection against the ravages of the Texas posse and other outlaws. On 14 June fifty Regulators returned to Lincoln and occupied the McSween residence. Peppin and his posse besieged the house, eventually setting it on fire. All the men inside then surrendered, except Bonney and two other Regulators who escaped under heavy gunfire. The Texas posse then killed McSween and four others.

End of the War. The deaths of Tunstall and McSween ended the war but did not bring peace to the area. Instead, with the law enforcement apparatus thoroughly discredited, new groups of outlaws moved into the county. In October 1878 The New York Times reported on disorders in the area, attributing the violence to “a handful of uneasy, wandering, and lawless people . . . mostly Mexicans and other mixed races.” In the same month Governor Axtell was replaced by Lew Wallace, a Civil War general and novelist, who called on President Rutherford B. Hayes to declare martial law. Wallace then issued an amnesty order for all citizens who would lay down their arms. The Regulators, meanwhile, had begun living near Fort Sumner, where the local population embraced them as heroes, especially William Bonney. In February 1879 Bonney, Jesse Evans, and James Dolan agreed to a truce.

The Legend. Bonney quickly found that the amnesty did not apply to him. He was indicted for murdering Sheriff Brady and the man who killed Dick Brewer. He met secretly with the governor, believing Wallace would pardon him in exchange for his testimony in another murder case. On 23 March Bonney was arrested but allowed to stay on his ranch near Fort Sumner. He apparently continued to steal cattle. In the fall of 1880 a federal official named Azaraiah Wild came to New Mexico to investigate counterfeiting. He appointed as deputies two men who had been involved with The House faction during the Lincoln County War. They quickly convinced Wild that Bonney was the most dangerous criminal in New Mexico. Local newspapers called him “Billy the Kid” because of his boyish appearance and described him as a “desperate cuss” who killed a man for every year of his life. (At the time he was twenty-one years old.) Governor Wallace pledged a $1,000 reward for his capture. Most murders in the territory were attributed to the Kid, who found himself both a hero and a wanted criminal.

Trial, Escape, and Death. In December 1880 newly elected Lincoln County sheriff Pat Garrett pledged to finally bring Bonney to justice. Garrett and a posse of Texans captured Bonney and his men near Stinking Springs. In April 1881 he was convicted of killing Sheriff Brady and sentenced to death. The old L. G. Murphy & Company building had become the new county courthouse, and Bonney was held there under heavy guard. Nevertheless, on 28 April Bonney killed one of his guards, cut his shackles with a miner’s pick, stole a horse, and escaped. This dramatic escape made the “outlaw king of the frontier” into even more of a legend. The Santa Fe Daily New Mexican reported that “Billy, the Kid has got more friends . . . than anybody.” Garrett, anxious both for the reward money and to demonstrate that he could not be outwitted, devoted all his time to the capture of Billy the Kid. On 13 July the sheriff and two deputies went to the ranch of Pete Maxwell because the Kid had been sighted nearby. The deputies waited on the veranda while Garrett talked with Maxwell, who lay in bed. In the orchard outside, a group of men, presumably ranch hands, conversed in Spanish. One of them came to the house to cut a steak for dinner. Seeing the strangers, he quietly entered the darkened house, whispering to Maxwell “Quién es?” (“Who is it?”). Unfortunately for the stranger he did not see Garrett, who promptly shot him in the heart; Billy the Kid was dead.

THE COMMON LAW

Oliver Wendell Holmes Jr. (1841-1935), son of a prominent Boston family, veteran of the Civil War, and one of the most influential Supreme Court justices in American history, argued that experience was as important as legal principle in the life of the law.

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. . . . The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

Source: Oliver Wendell Holmes Jr., The Common Law (Boston: Little, Brown, 1881).