Transcribed from volume II of Kansas: a cyclopedia of state history, embracing events, institutions, industries, counties, cities, towns, prominent persons, etc. ... / with a supplementary volume devoted to selected personal history and reminiscence. Standard Pub. Co. Chicago : 1912. 3 v. in 4. : front., ill., ports.; 28 cm. Vols. I-II edited by Frank W. Blackmar.

Judiciary, Territorial.—Under the Kansas-Nebraska bill, the fundamental act of the organization of Kansas Territory, the president appointed three judges to constitute the highest court of the territory. The first judges appointed by President Franklin Pierce were: Samuel D. Lecompte of Maryland, chief justice; Saunders W. Johnston of Ohio, and Rush Elmore of Alabama, associate justices. About Jan. 1, 1855, the territory was divided into three judicial districts and a justice was assigned to each. Lecompte had jurisdiction over the northeastern portion, Elmore the southeastern, and Johnston the remaining portion of the territory. In the meantime justices of the peace had been appointed in various localities, before whom differences could be adjusted, criminals arraigned and bound over to the higher court. The act of organization provided that the judicial power of the territory should be vested in a supreme court, district courts, probate courts, and in justices of the peace, the jurisdiction of each court, both appellate and original, to be as limited by law, the supreme and district courts possessing chancery as well as common law jurisdiction.

The first legislature of the territory, in session at the Shawnee Mission, greatly facilitated the work of enacting laws for Kansas by adopting transcripts of the Missouri code. Says Holloway, in his "History of Kansas" (p. 165): "With the exception of some oppressive laws of their own manufacture they enacted the best code of laws the territory or state ever enjoyed."

One of the most remarkable features about these legislative enactments was that all officers in the territory—legislative, executive and judicial—were to be appointed by the legislature, or by some officer that had been appointed by it, and these appointments were to continue until after the general election in Oct., 1857. Thus the people could have no control over the legislative, executive or judicial affairs of the territory until by the natural progress of population the government thus inaugurated should be superseded by that of a state government. Being solicitous about the legality of their proceedings, they were referred to the supreme court, and in a lengthy document a majority of the judges sustained the legislature in its course of action and highly complimented the talents and character of its members. One of the judges, S. W. Johnston, refused to have anything to do with the matter. During the tumult and excitement of the ensuing years the judiciary of the territory was of secondary importance, and their tribunals proved to be anything but "havens of refuge" while the partisan storm was raging. The district court for the second district was organized at Tecumseh, with Rush Elmore as judge, on April 30, 1855, and the third judicial district was organized at Pawnee on July 2 of the same year, with Saunders W. Johnston presiding. On July 30, 1855, the first session of the supreme court was held at the Shawnee Manual Labor School, in Johnson county, with all three of the territorial judges present.

The territorial legislature elected the probate judges for the several counties, and the appointment of justices of the peace was given to commissioners chosen by the legislature. On Sept. 13, 1855, Sterling G. Cato of Alabama was appointed judge in place of Elmore, and J. M. Burrill of Pennsylvania, in place of Johnston. The supreme court met at Lecompton on Dec. 3, and on the following day these gentlemen took their seats as associate justices. Judge Burrill remained in Kansas only a short time, and then returned to Greensburg, Pa., where he died in Oct., 1856. Thomas Cunningham, of Beaver county, Pa., was appointed his successor. Mr. Cunningham visited Kansas, but resigned without entering upon the duties of his office. During the second week in May, 1856, the first district court held its sessions at Lecompton, Judge Lecompte presiding, and the following quotation, concerning what was then the disturbing question in Kansas, is taken from his charge to the grand jury: "This territory was organized by an act of Congress, and so far its authority is from the United States. It has a legislature elected in pursuance of that organic act. This legislature, being an instrument of Congress, by which it governs the territory, has passed laws. These laws, therefore, are of United States authority and making; and all that resist these laws resist the power and authority of the United States, and are, therefore, guilty of high treason. Now, gentlemen, if you find that any person has resisted these laws, then you must, under your oaths, find bills against them for high treason. If you find that no resistance has been made, but that combinations have been formed for the purpose of resisting them, and individuals of influence and notoriety have been aiding and abetting in such combinations, then must you find bills for constructive treason."

It will be remembered that in the preceding January a state election had been held in pursuance of the "Topeka Constitution," and Charles Robinson had been declared elected as governor of the "State of Kansas." In writing of Judge Lecompte's charge to the grand jury, Mrs. Robinson in her book on "Kansas," says: "To make the matter so plain that even the dullest of his hearers may not fail to comprehend his meaning, he states that some who are 'dubbed governor, lieutenant-governor, etc., are such individuals of influence and notoriety!'"

Upon the induction of Gov. Geary into office he sought to awaken and infuse new life and virtue into the judiciary of the territory. On Sept. 23, 1856, he addressed a letter to each of the judges, asking them what they had done. The replies showed that very little had been done, for in the midst of war laws are silent. Chief Justice Lecompte replied that he had a "party bias," and was proud of it. He said: "To the charge of a pro-slavery bias, I am proud, too, of this. I am the steady friend of Southern rights under the constitution of the United States. I have been reared where slavery was recognized by the constitution of my state. I love the institution as entwining itself around all my early and late associations." (See Geary's Administration.)

On June 1, 1857, Joseph Williams was appointed associate justice in place of Cunningham. On July 10 he took the oath of office before Secretary Stanton and established his residence in Fort Scott. In July, 1858, Joseph Williams and Rush Elmore were designated as associate justices and served until the admission of the state. Elmore had been reappointed in place of Cato, who left the territory. In March, 1859, John Pettit of Indiana was confirmed by the United States senate as chief justice of Kansas, and on April 2 he took the oath of office at Leavenworth, before Samuel D. Lecompte, whom he succeeded. Holloway says: "While the Kansas governors generally proved true to their honest convictions, other appointees of the administration, in most instances, used all their influence to serve partisan purposes. Such seems to have been especially the case with the judiciary. Judge Cato of Alabama was perhaps the most perverse and partial of all others; Judge Elmore was the most prompt to duty, strict and impartial in his judgments; Judge Lecompte, the most learned and pliant tool; Judge Williams said the most and did the least—as cowardly as he was dishonest—and Judge Pettit of Indiana, the staggering embodiment of all vices and virtues."

Pages 40-42 from volume II of Kansas: a cyclopedia of state history, embracing events, institutions, industries, counties, cities, towns, prominent persons, etc. ... / with a supplementary volume devoted to selected personal history and reminiscence. Standard Pub. Co. Chicago : 1912. 3 v. in 4. : front., ill., ports.; 28 cm. Vols. I-II edited by Frank W. Blackmar. Transcribed July 2002 by Carolyn Ward.