Part 15

Dear Sir:--From a full investigation and inquiry into the condition of the affairs in Breathitt County, I am fully satisfied that the civil authorities cannot hold a circuit court in that county and enforce the law without the aid of the State Guard. That the people are divided to such an extent that a sheriff's posse will not be sufficient. Several murders have been committed in the county since the last term, and the offenders are not yet indicted, and cannot be, unless the witnesses can be protected. Charges are made against a brother of the sheriff, and the son-in-law of the jailer, and the witnesses cannot be induced to go before the grand jury unless they have assurance of protection. There is a number of felony cases in the court, which I think will be ready for trial....

_Governor Buckner's Reply._

Hon. H. C. Lilly, Judge 19th Judicial District, Irvine, Kentucky.

Dear Sir:--I have fully considered your letter of the fifth inst. in reference to the condition of affairs in Breathitt County in which communication you say that you are "fully satisfied that the civil authorities cannot hold a circuit court in that county and enforce the law without the aid of the State Guard; that the people are divided to such extent that a sheriff's posse will not be sufficient; several murders have been committed in the county since the last term, and the offenders are not yet indicted, and cannot be, unless the witnesses can be protected; charges are made against a brother of the sheriff, and the son-in-law of the jailer, and the witnesses cannot be induced to go before the grand jury unless they have assurance of protection." And you further say: "I, as judge of the Breathitt Circuit Court, call upon you to furnish fifty of the State Guard, properly officered and equipped, to aid the civil authorities in holding said court and in enforcing the law."

It is needless for me to say that in a republic the employment of the military arm in enforcing the law is of rare necessity, and the occasion for its use should not be of doubtful propriety. The law invests the civil authorities with ample powers to enforce the observance of law, and expects those officers to exert their authority with reasonable diligence. When this is done there is seldom an occasion when the military arm can be employed without detriment to the public interests and without bringing the civil authorities into discredit. When a people are taught that they are not themselves the most important factor in the conservation of order in society, and that they must depend upon the exertion of extraneous forces to preserve order among themselves, they have lost their title to self-government, and are fit subjects to a military despotism. I do not believe that any portion of this Commonwealth has reached that degree of political degradation.

As far as Breathitt County is concerned, while there have been acts of individual lawlessness, I do not find in your statement, or from any other source, an evidence of any organized opposition to the civil authorities. On the contrary, I am convinced that a reasonable exertion of their legitimate power would cause the masses of the people to rally to their support more effectually than could be done in the presence of the military force. The latter, whatever their numbers, could not influence, and ought not to influence, the character of the testimony of a single witness before the grand jury, but their presence would be a confession of weakness on the part of the civil authorities before they had made any attempt to discharge their duties, and to this extent would lessen respect for their authority, and render the subsequent discharge of their duties more difficult. A healthy public sentiment, and not the presence of an armed force, is the best support of government; and the powers conferred upon a circuit judge, both as a judge, and as a conservator of the public peace, are so unlimited that a firm and judicious discharge of his duties will almost invariably mould public sentiment in support of his judicial actions.

Under all the circumstances, I do not believe that the presence of troops in Breathitt County is necessary to maintain the laws. With every purpose to support the judicial tribunals in the effective discharge of their duties, I feel constrained to decline the request which you make to order a detachment of the State Guard to Breathitt County. But if my own presence will be of any service to you, I will take pleasure in accompanying you to the Breathitt Circuit Court if you conclude, on reconsideration, to hold it.

In your letter, November 13th, you say: "I will not attempt to hold courts at Letcher, Knott or Breathitt unless you send guards along." This is a matter on which the Executive can take no action. It is for the legislative department of the government to judge of the facts which will justify an official in thus abdicating the duties imposed upon him by law.

But on this subject I trust you will permit me, without obtruding on your consideration any views of my own, to invite your attention to an act passed by the General Assembly at its last session, and approved March 9th, 1888. Amongst other things this act provides that "if, at any term of circuit court, the presiding judge thereof shall be absent ... it shall be lawful for any other circuit judge of this Commonwealth to attend and hold such term of court, and while so engaged he shall have and exercise all the powers and authority of the regular judge of such court."

I am informed that under authority of this act, some circuit judges have already interchanged courts, and if there are any reasons why you prefer not to hold the court in Breathitt, I have no doubt that many of the circuit judges would be willing to interchange with you. I happen to know that Honorable Lucius P. Little is willing to hold the Breathitt Circuit Court for you, if you will hold the McLean Circuit Court for him....

Your obedient servant, S. B. BUCKNER.

_Judge Lilly to Governor Buckner._

Irvine, Ky., February 4th, 1889.

Governor S. B. Buckner.

Dear Sir:--Your letter dated 14th December, and postmarked on the 18th, was received by me on the night of the 25th, at Jackson, Breathitt County. On the third page you proposed to accompany me to Jackson in the following words: "But if my own presence will be of any service to you, I will take pleasure in accompanying you to Breathitt court, if you conclude, on reconsideration, to hold it." You were advised that the Breathitt court would begin on the 17th, and I suppose your Adjutant-General had informed you that I had decided to go and hold court if I could do so. I told him on the morning of the eighth that I would go to Breathitt court. You must have believed that I would leave Irvine for Jackson as early as the morning of the 14th, and before you wrote your letter. Why did you make such a proposition to me at the time you did? I fear you will have a little trouble in making people believe that you made the offer in good faith.

On page 4 of your letter you say "I happen to know that Hon. Lucius P. Little is willing to hold the Breathitt Circuit Court for you, if you will hold the McLean Circuit Court for him." I thank Judge Little for his kind offer, and believe he made it in good faith, but why did you withhold the information from me until it was too late for me to confer with him. He lives in the western part of the State. You must have known that I had no time to make any arrangements with him. You must have known that the offer was futile, and that it could not be carried into effect. Can you make the public believe that you were acting in good faith?

In speaking of the application made to you on the 5th of December, you failed to make any reference to the papers filed with it. Why did you conceal from the public the fact that a majority of the attorneys who practice at the Breathitt Circuit Court ... and divers other prominent men, had requested you to send a guard, and gave it as their opinion that the court could not be held without a guard? I am at a loss to know why you sought to throw the whole responsibility upon me.

That the public may know something about the condition of Breathitt County at the time, it is only necessary to say that between the first day of August and the fifth day of December, 1888, the following men were killed, to wit: Lewis Taulbee, James Shockey, David Barnett, and Isaac Combs, "Shooting Ike;" and the following men were shot and wounded, viz: Crain Flinchem, John Smith, Jeff Smith, Marion Lawson, Curtis Spicer, Luther Abner, John Campbill, Jack Barnett, Pearl Strong, Wm. Frances, and Breck Miller. There were also a large number of other felonies committed in the county, and all this, in addition to the old docket, which shows a large number of felony cases. Knowing their system of combining their strength to help one another, to prevent any one being punished by the law, I submit to you if it would not have been better if you had sent a guard there to encourage the good citizens to attend court. I held court there three weeks, and there was no outbreak, that is true, and it is also true that we got no verdicts in important cases. We tried four murder cases and had hung juries in each case. Except those required to be in attendance, the good citizens of the county were not there. Why were they absent? I think it was because they thought it unsafe to be there. For the same reason nearly all the attorneys who practice at that bar failed to attend the court.

Theories look well on paper, but when you come to put them in practice they often fail to work well. What do murderers and outlaws care for theories. I hope you will not think I put it too strong when I say that your course has given comfort, if not aid, to those who are charged with crime. They feel that they are able to prevent the civil authorities from enforcing the law, and, in view of your letter, they feel that no help will be given the civil officers, and hence they will do as they please.

Judge W. H. Randall, Judge Robert Riddle, Judge Cole and Judge Jackson and other judges have thought it advisable to have a guard. Judge Finley failed to attend his courts in Letcher, Perry and Knott for several terms before his term of office expired. They, like myself, had better opportunities of knowing the real status of affairs in their counties than people who live far away, and do not understand the people.

It has been published in the newspapers of the State that a certain judge of the State held his courts in Breathitt County and had no trouble. That judge, previous to his election, had been employed as counsel for nearly every one charged with high crime in that county, and, as a consequence, did not have to try them. On the contrary, he was doing all he could to prevent their conviction and to prevent the laws being enforced upon them. He is yet the employed counsel of six persons charged with murder and other high crimes in that court. Of course, he had no trouble. Who can say, whether, if he had tried to bring them to justice, he would have gotten along so easily. As the papers pretty generally throughout the State have published your letter to me, I hope they will do me the favor to publish this, my answer.

Hoping you will find it easy to answer the interrogations propounded to you in this letter, I remain,

Yours respectfully, H. C. LILLY.

_Governor Buckner's Reply._

COMMONWEALTH OF KENTUCKY.

EXECUTIVE OFFICE.

Feb. 8, 1889.

Hon. H. C. Lilly, Judge Nineteenth Judicial District, Irvine, Kentucky.

Dear Sir:--Your letter of the 4th inst. reached me yesterday. You seemed to impute want of good faith on my part in offering to attend you to the Breathitt Circuit Court. This charge on your part is based on the erroneous and gratuitous assumption that the Adjutant-General had doubtless informed me that it was your intention to hold the Breathitt Circuit Court on the regular day. The Adjutant-General informs me to-day that he did not himself know that it was your determination to hold the court, and that the remark you made to him on the subject left him in the belief that you had not reached a determination as to what you would do in the premises. You wrote me that you would not hold court in Knott or Letcher, and in your conversation with me gave me no ground to believe that you had concluded to hold the court in Breathitt.

My conclusion was therefore logical and necessary that you would not hold the court.

Your assumption that I knew that you would hold it is therefore entirely erroneous, and the decision you reach in consequence of this assumption is fallacious.

You ask me a number of questions in your letter, but as you proceed to make replies to suit yourself, and to reach conclusions favorable to your own views, you spare me the necessity of giving them any response. I limit myself to stating what alone is relevant to this question, that having concluded that there was no necessity of sending troops at great expense to the State, I offered to accompany you so that, if my views should have proved erroneous, I would have been on the ground to have called to your aid such assistance as may have been needed.

As the session of court was to continue during three weeks, and as you could have taken your seat on the bench at any time during the term, there was ample time, after writing my letter, for you to have reconsidered your determination, if you had been at Irvine, where I supposed you were, and to which place I addressed my letter to you, and to have gone afterwards to Breathitt long before the term of court should have closed. So far from knowing that it was your purpose to hold court, I had not the slightest idea that you would do so, until I learned after the adjournment of the court that you had held it. I am gratified that you did so, for it was a demonstration that troops were not necessary for your protection.

In like manner there would have been time for you to have made an interchange with Judge Little, by telegraphic correspondence, if such had been your desire.

You seem to charge that I have aided and abetted criminal classes by declining to place troops at your disposal in Breathitt County, and attribute to their absence the non-conviction of criminals. If their absence produced such a result in Breathitt County, their presence at your court in Perry County should have produced, according to your logic, a large number of convictions. But I am advised that the result was the same in both counties. We must, therefore, look for some other reason than the presence or absence of the military to account for such uniformity of results. I believe myself that the court is and ought to be, an important factor in the administration of justice, and that the presence or absence of the military should have no weight in its decisions, and ought not to influence its actions.

You ask why I throw "the whole responsibility" of making an application for troops upon you? It was because you were the judge who made the application; who demanded protection, and averred you would not hold court unless I sent guards along. There was no one else with whom the responsibility could be divided, and as you must have acted from your convictions of duty, I do not see why you should seek to avoid the responsibility, or desire me to place it where it does not belong.

I have no criticisms to make in reference to other judges who have asked for troops, or in reference to Judge Finley, who, you say, failed to attend certain courts.

These were occurrences under former administrations, and were doubtless considered by the Executives of the time in the light of facts, which I do not pretend to know. Much less will I offer my comment upon the grave charges you insinuate against another judicial officer in connection with the Breathitt court. But I cannot refrain from expressing regret at what seems to be the manifestation of feeling on your part, which does not impress me as strictly judicial, but, notwithstanding this, I beg you to rest assured of my desire to support your authority in every way that the Executive can do, consistent with the public welfare. I have no objection to your giving the fullest publicity to your letter.

Respectfully yours, S. B. BUCKNER.

The last feud in Breathitt County, during which the most horrible assassinations were committed, was the Hargis-Cockrell-Marcum-Callahan vendetta.

The Hargises and the Cockrells claimed that the name is a misnomer--that no feud existed.

Capulet once said: "The Montagues are furnishing all the trouble and we are only innocents slaughtered."

Montague said: "The Capulets are making the war. We are only defending our lives and property."

An apt quotation, here.

A political race first engendered the bitterness which led to the murders narrated later on. In this race the Democratic candidates were elected, at least declared to have been elected. Their ticket was headed by James Hargis for county judge and Ed. Callahan for sheriff.

The fusion ticket, which was defeated _in toto_, contested the election, alleging fraud.

At that time one J. B. Marcum and O. H. Pollard were partners in the practice of the law. Marcum had accepted a fee for the contestants, the fusionists, and Pollard for the Democratic contestees.

Marcum and Hargis were said to have had a difficulty about a year prior to this contest, but the breach between them seemed to have been healed. Marcum had been attorney for the Hargises for a number of years.

It appears that during the taking of depositions in the contest case the first open rupture occurred. What actually transpired has been told in conflicting stories. It seems that Marcum, Pollard, James Hargis and Ed. Callahan were in Marcum's law office. They differed in regard to some testimony of certain witnesses and nearly came to blows. Pistols were drawn by some of the men and Marcum ordered each and all from his office.

Police Judge Cardwell issued warrants. Marcum at once surrendered and paid his fine.

Hargis declared his refusal to appear before Judge Cardwell, whom he regarded as an enemy, and had so considered him for years. He therefore surrendered to Magistrate Edwards, a personal friend. A controversy arose as to Justice Edwards' jurisdiction in the matter. The dispute threatened to create still further trouble, to allay which Mr. Marcum moved the case against Judge Hargis to be dismissed, which was done.

Here starts the war. In making the arrest of Judge Hargis, the town marshal, Tom Cockrell, assisted by James Cockrell, his brother, were said to have drawn guns on Hargis and that only the intervention of Sheriff Callahan prevented the two from killing Hargis. This the Cockrells indignantly denied. They asserted that in making the arrest of Judge Hargis they had used no more force than was necessary. Hargis swore they would pay for their audacity in drawing a gun upon his person, and he made good his threats, that is, others did make it good for him.

Numerous unsavory charges now began to be made first on one side and then the other. Marcum at one time charged Ed. Callahan with assassinating his, Marcum's, uncle, Capt. Bill Strong, who was shot from ambush in front of his home in either 1898 or 1899.

Callahan in turn charged Marcum's uncle, the deceased Capt. Bill Strong, with the assassination of Wilson Callahan, the father of Sheriff Callahan. Each faction charged the other with the murder of some one.

Shortly after this occurred a pistol duel between Tom Cockrell and Ben Hargis, in which the latter was shot and killed on the spot.

The two had met at a "blind tiger" saloon in Jackson and quarreled, with the result that both drew their pistols and fired upon each other. Before Hargis sank dying to the floor, he had succeeded in seriously wounding his antagonist.

The Hargises at once began an active prosecution of Cockrell and kept it up.

Dr. Cox had married a kinswoman of the Cockrell boys and had also become their guardian, both of them being under age. The Cockrells were also related to Marcum, who had volunteered in Tom Cockrell's defense for the killing of Ben Hargis. Marcum also was an intimate friend of Dr. Cox, who practised in Jackson and vicinity.

Not long after the killing of Ben Hargis another brother of Judge Hargis met his death at the hands of a man charged by the Hargis clan as being a Cockrell man. John Hargis was the man slain; "Tige" was his nickname. He was killed by Jerry Cardwell.

Hargis had boarded the train at Jackson on his way to Beattyville. Cardwell was the train detective. It is claimed that Hargis had been drinking and became disorderly. The conductor in charge of the train asked Cardwell to preserve the peace. As soon as Cardwell entered the car Hargis sprang to his feet and drew his gun. Cardwell and he fired simultaneously. Cardwell was wounded, Hargis shot through the heart. The Hargis clan always claimed that the killing of John Hargis was the issue of a well-laid conspiracy with the Cockrells at the bottom of it. They attempted to connect them with the shooting, but nothing ever came of it.

Dr. Cox, guardian and kinsman of the Cockrell boys, and J. B. Marcum, their cousin, were intimate friends and frequently discussed the foreboding aspect the community was taking on. Rumors came to them frequently now that they were marked for assassination. At first neither Dr. Cox nor Marcum gave them much credence. Finally, about the first of April, 1901, Marcum went to Washington on business. While there, Dr. Cox was assassinated. Marcum was convinced that he, too, was marked for death.

The proof in the case shows that Dr. Cox had left his home about eight o'clock one night to make a professional call. The conspirators had for many nights been watching his movements. He had almost reached the corner of the street diagonally across from the court house, and directly opposite Judge Hargis' stable, when he was fired on and he fell dead, riddled with small shot. After he had fallen to the ground the assassins fired another volley into his body and easily escaped.

There was persistent rumor at the time of the killing that the shots had been fired from Hargis' stable, but witnesses were afraid to swear positively about anything. Indictments against parties for the murder were not returned until some time afterwards.

It has been told that Judge Hargis had been heard to laughingly say, after the fall of Dr. Cox, "Great Scot! didn't he bellow like a bull when that shot hit him?"