The Conundrum of Gun Control in War-torn Kentucky

By Matthew C. Hulbert

Gun control—particularly when it concerns the ability of private citizens to carry concealed firearms in public—is one of the most controversial and hotly-contested political issues twenty-first-century America has to offer. Conceptions of the past often play a major role in how the debate is framed. When we imagine the United States in the mid-nineteenth century, there’s a tendency to envision everyone (minus slaves) legally carrying a weapon whenever, wherever, and perhaps most importantly, however, he or she wished. From frontiersmen (see Jeremiah Johnson [1972]) and quick-drawing shootists (see The Outlaw Josey Wales [1976]) to gamblers and their belly guns (see Maverick [1994]) or even Jim West’s spring-loaded Derringer (see The Wild West [1965-69]), pop culture has done much to reify that America was, in its “frontier days,” a gun-toting nation. What most observers don’t realize, however, is that this seemingly modern debate over the right to bear arms has actually been raging since the 1860s—and nowhere was it more intense than Civil War Kentucky.

In May 1866, John L. Peyton was indicted in the Hopkins Circuit Court for carrying “concealed deadly weapons,” which essentially meant that he’d left home with a revolver tucked under his coat or hidden in a pocket. The law in Kentucky that regulated concealed weapons dated back to March 1854:

Sec. I. Be it enacted by the General Assembly of the Commonwealth of Kentucky: That if any person shall hereafter carry concealed any deadly weapons, other than an ordinary pocket knife, except as provided in the next section, he shall be fined on the first conviction not less than fifty nor more than one hundred dollars, and on any subsequent conviction not less than one hundred nor more than five hundred dollars.

Sec. II. That the carrying of concealed deadly weapons shall be legal in the following cases:

  1. Where the person has reasonable grounds to believe his person, or the person of some of big family, or his property, is in danger from violence or crime.
  2. Where sheriffs, constables, marshals, and policemen carry such weapons as are necessary to their protection in the efficient discharge of their duty.
  3. Where persons are required by their business or occupation to travel during the night, the carrying concealed deadly weapons during such travel.

Sec. III. This act shall be given in charge by the judges to the grand juries.

According to his supporters, Peyton had good reason not to travel in Hopkins County without a gun. In February 1866, he’d been appointed the Superintendent of Freedman’s Affairs there and charged with overseeing the transition from bondage to citizenship of the area’s African American population. Neither task nor title won Peyton many new friends among local Conservative Unionists (those who’d remained loyal to the Union for sake of protecting the institution of slavery) or among Rebel guerrilla bands (some of whom hadn’t yet called it quits in 1866).

Peyton’s defenders dispatched a petition to Governor Thomas E. Bramlette requesting that the charge be dropped. Their plea was based on two mitigating factors. First, that “being an officer of law, duly appointed, and acting and believing it to be his [Peyton’s] right and that the circumstances eminently justified it, did carrying a Colts Navy Revolver about the country for protection, during a part of his term of office.” And second, “that it would have been unsafe for said Peyton or any one else in the discharge of a similar office in said county, to have gone unarmed in the country, owing to the presence of late Guerrillas and lawless characters, who would have delighted to murder the ‘Nigger Bureau’ as he was decisively and maliciously called by them.” In other words, Peyton’s circumstances adhered to the letter of the law; carrying a concealed weapon was a de facto requirement of his job and to condemn a man in his line of work for doing so was like asking him to commit suicide.

This was a problem Noah Allen faced a county away while defending himself against an identical charge in the Crittenden Circuit Court. Though not an agent of the Freedman’s Bureau, Allen was a discharged Federal soldier (formerly of the 17th Kentucky Cavalry) and, like many of his ilk, had been allowed to retain his sidearm for purposes of personal protection. Petitioners on his behalf noted that the “country was filled with desperate men, and Union soldiers were being murdered everywhere.” Worse still, while the law appeared to favor Allen’s case, the men doing the murdering seemed to control the justice system. “Our Rebel jury,” Allen’s supporters continued, “were not satisfied until he [Allen] was indicted” even though “Rebels carry their arms every where and not one have they ever been indicted.”

A few years prior to the petitions from Peyton and Allen, Bramlette had been asked to intervene in the legal proceedings against Richard Murray (1863) and Brutus J. Clay (1864). Murray, of Munfordville, Kentucky, was convicted of possessing a concealed deadly weapon and fined $100 when a revolver he was apparently hiding in his pants discharged and resulted in a serious injury. According to a petition penned on Murray’s behalf, he was unable to pay the $100 penalty for carrying the weapon because “he is now a cripple and will be for life” as a result of his self-inflicted wound.

skein imageClay, the son of noted Kentuckian Cassius M. Clay (and the namesake of Cassius’s brother, Brutus), was walking along the road one afternoon and stopped to throw a rock at a pigeon; he missed, and the stone projectile struck a bridge house. The bridge keeper, a Mr. Gale, became enraged and threatened to assault Clay—but retreated when the young man produced a revolver that had been concealed in his clothing. While their situations seem far more trivial than former Union soldiers being hunted by pro-Confederate guerrillas or a man accidentally shooting himself in the leg—and while neither seemed to meet the justifications for concealed carry as stipulated by state law—Bramlette granted each a pardon because he believed that “in a time of Civil War when every loyal man ought to be armed for defense; I think none should be fined for being armed.”

The cases of Peyton, Allen, Murray, and Clay underscored a set of deep, interconnected problems that plagued Kentucky—and its governors—during the war and its immediate aftermath. Though the state had remained loyal to the Union, many Kentuckians had only done so to protect their hold on slave labor and white supremacy. When war broke out in 1861, they couldn’t have imagined Lincoln or his Republican allies in Washington D. C. punishing their loyalty; even so, the Peculiar Institution was eradicated and, in response, violence against newly-freed African Americans and their supporters—that is, men like Peyton—exploded. (So much so that Kentucky became one of only two non-Confederate states to elicit the presence of Freedman’s Bureau agents.)

And then there were the guerrillas. Bramlette and his top commanders had struggled mightily to control them during the war and fared little better during Reconstruction, as irregular activity took on a decidedly pro-white, as opposed to anti-American hue. In turn, ex-guerrillas found more generalized support among white former Unionists. This alliance, combined with restrictive gun laws in the Commonwealth, made life exceedingly precarious for the likes of Peyton and Allen. On one hand, statutes against concealed weapons existed to protect civilians from guerrillas and outlaws—but did little to help former soldiers and current government agents when those civilians turned on them, formed terror organizations, and became guerrillas and outlaws. On the other hand, the “shenanigans” performed by Murray and Clay underscored that even in times of war, loyal men with concealed weapons could often do more harm than good—and made it difficult to justify officially loosening the reins on concealed carry during the war or afterward.

At first glance, the solution seems so obvious: to openly carry a sidearm. It was, after all, perfectly legal to do so in Kentucky during and after the war. In reality, though, there wasn’t a solution outside of carrying concealed weapons for Peyton and Allen, and both seem to have known it. To go totally unarmed meant certain harassment and potential assassination. To go armed so brazenly, however, essentially invited a fight; more to the point, it invited a fight with men who’d spent the war perfecting the art of killing and evading capture—and who had the ability to influence when and how juries enforced the 1854 statute. For lack of a better, more formal description, this scenario was simply a “lose-lose” for Peyton and Allen, a direct and unavoidable consequence of Kentucky’s unique Civil War and Reconstruction experience.

In the bigger picture, it was also a systemic problem for Thomas Bramlette and the state’s pro-Union government. Bramlette’s chief task as governor was to protect his loyal constituents—but as the nature of Kentucky’s war created a necessity for citizens to arm themselves in self-defense from guerrillas run amok on the homefront, it simultaneously created a necessity for Bramlette to more strictly enforce extant guns laws to protect certain citizens (read: Richard “the leg shooter” Murray) from themselves. It simply wasn’t possible for Bramlette to assuage both needs at once and the consequences of this inability continue to echo: the conundrum of self-protection vs. protection from self has been debated for 150 years since and shows no signs of abatement.

 

Matthew C. Hulbert is an Assistant Editor of the Civil War Governors of Kentucky Digital Documentary Edition.


SOURCES: J. A. Skein to Thomas E. Bramlette, 6 Nov 1863, Kentucky Department for Libraries and Archives, Frankfort, Kentucky (hereafter KDLA); G. T. Wood et al. to Thomas E. Bramlette, 10 Nov 1863, KDLA; Brutus J. Clay Affidavit, 19 March 1864, KDLA; R. J. Littlepage et al. to Thomas E. Bramlette, n.d., KDLA; Richard H. Stanton, The Revised Statutes of Kentucky, Volume I (Cincinnati: Robert Clarke & Co., 1867), 414.

Governor _____?_____ of Kentucky: “Please fill in the name of the person who is governor…”

Image

By Tony Curtis

In November 1862, William A. M. Van Bokkelen requested a commission as Commissioner of Deeds for Kentucky in the Nevada Territory. A series of letters discovered by the Civil War Governors of Kentucky Digital Documentary Edition (CWG-K) shows his attempt to obtain a commission through politically connected Kentuckians, and a lack of response on the part of the governor. Continue reading

The “Ladies of Frankfort” Assert Their Right to Petition

Image

By Tony Curtis

March is Women’s History Month and the National Women’s History Project (NWHP) theme for 2015 is “Weaving the Stories of Women’s Lives.” An appropriately themed document recently appeared in the form of an undated Franklin County, Kentucky, petition signed by the “Ladies of Frankfort.” Continue reading

One County, Two Governors

Aside

By Patrick A. Lewis

The Civil War Governors of Kentucky Digital Documentary Edition (CWG-K) is a unique documentary and research project which will reveal as never before the lives and voices of thousands of Civil War-era Kentuckians.  Yet it is based in the records of only five men, the three Union and two provisional Confederate governors of the state.  It is, at the same time, broad and inclusive as well as intimate and personal.  The collection shines light on an entire society at war with itself while also allowing researchers access to these five individuals.

Interestingly, two of the governors, Union Governor James F. Robinson (1862-1863) and Confederate Governor George W. Johnson (1861-1862), hailed from Scott County, a prosperous central Bluegrass county just north of Lexington.  Both Robinson and Johnson were prosperous Scott County slaveowners, well-known and well-connected in the county and the state.  What made them choose to fight against one another?

Like communities across the state, Scott County was deeply divided between when the war came, and all Kentuckians had to weigh a complex set of variables when deciding which warring side to support.  Prewar political affiliation, social networks, religious convictions, opinions on slavery, and the economic demands of families, communities, and the state all factored into this complex balance.  Taking one of these factors, the economic interests of both men, we can begin to understand what led these neighbors down extremely different roads.

The Unionist Robinson was a lawyer, farmer, and president of Georgetown’s Farmers Bank of Kentucky.  Robinson’s own farming operations and the assets of his bank, which advanced money to local farmers, were inextricably tied into the slave-based agricultural economy of Scott County.  The county, like most of those in the Bluegrass, saw most of its wealth concentrated in livestock and hemp—two products which, Robinson was convinced, were only made profitable by the Union as it was.  Railroad connections running northward to Cincinnati and westward to Louisville had driven demand for Kentucky’s famous horses, its hard-working and highly prized mules, and its exceptional beef cattle in the agricultural states of the Old Northwest—particularly Ohio, Indiana, and Illinois.  Moreover, while most of Kentucky’s hemp crop was turned into bagging for Deep South cotton, only a protective federal tariff—the lifetime achievement of Henry Clay—protected this signature Kentucky industry from being undercut by cheap Russian imports.  From Robinson’s perspective, if Kentucky left the Union—forsaking these markets and tariffs—it would shatter the economic and social foundations of Scott County’s market-agrarian economy.

The Confederate Johnson was typical of the interconnected Southern planter class which pushed the secession movement.  While he himself lived and farmed in Scott County, he and his family were heavily invested in the cotton economy of the Deep South.  The 1850s correspondence in the George W. Johnson Papers at KHS—the core of CWG-K‘s Johnson collection—reveal these fascinating connections.  In those papers, we hear from Johnson’s brother, William, who owned a cotton plantation near Vicksburg, Mississippi.  We follow his son-in-law J. Stoddard Johnston as he speculates in cotton land in Arkansas.  And we follow Johnson’s personal involvement in the cotton economy as he buys a plantation in Old Town, Phillips County, Arkansas, near Helena.  These land records, combined with Johnson’s correspondence with New Orleans cotton brokers, Ward, Saunders, & Hunt, show that a significant portion of the future-Confederate governor’s personal wealth was tied up in the states which seceded immediately after Lincoln’s election.

Economically, Robinson and Johnson seem to underscore what was so often the case in Kentucky.  By and large, both Unionists and Confederates sought to defend slavery in 1861, but how each individual connected to the institution and what hopes they had for slavery’s future as an economic and social system shaped their personal paths.  What else might we find over the course of this project that united and divided these two Kentuckians?

Patrick A. Lewis is project director of the Civil War Governors of Kentucky Digital Documentary Edition

Toward an Understanding of the Civil War-era Kentucky County Courts

Aside

By Tony Curtis and Patrick A. Lewis

How are governments structured? How do they function? These are two very fundamental and, surprisingly, very different questions which the Civil War Governors of Kentucky Digital Documentary Edition (CWG-K) will address. The first question involves how people imagine their society works on a theoretical level. The second shows how those theories really play out in the world.

No one, we found, has really addressed either question for Civil War-era Kentucky. No single source exists on the structures of government—state, district, and county, executive, legislative, and judicial—or describes how each individual piece worked with the others. But in order to carry out our work we had to know. We had to know, first, to anticipate where we might find documents to and from our governors. And we had to know, second, to start to understand how the war disrupted government in the Commonwealth.

Thus began a research odyssey to diagram state and county government—literally map out every department, cabinet, and court on wall charts in the CWG-K offices. Twenty-seven sources, twenty-four oversized sheets taped to the wall, and one nine-foot scroll later, we have a more complete picture of these institutions as they existed in Civil War-era Kentucky and how they were supposed to function—theoretically.

Actual practice was another issue, but that is for the documents to illuminate. One particular area in which we have already seen wartime turbulence is the county court system. How did civil war affect the county courts? Who was elected or appointed to hold these offices? Did they function as the 1850 Kentucky Constitution set forth or were they in complete disarray?

Fortunately, CWG-K documents will help historians explore this question further. Though the new constitution made county courts incredibly powerful, the executive branch—in particular the governor and secretary of state—wielded a great deal of power as they handled the appointments and resignations of state officials in each county. In the 13,000+ documents currently in process, thousands of letters and petitions relate to the commissions of county officers from across the commonwealth.

An April 19, 1862 letter to Governor Beriah Magoffin from five “freeholder” citizens of Wolfe County, Kentucky, speaks to the great wartime confusion about the legal status of county officials and the legitimacy of the local courts. The petitioners state that “We have not had any courts held in our county since Sept. 1861 up to April 14th[.] There was an attempt made By the County Judge to hold County Court on the Regular court day in Apr 1862 and was prevented by force of arms as he were accused of Being a disloyal citizen of Ky.” In addition, Wolfe County had collected “very little tax” without a properly appointed sheriff.

With multiple county officers, including a county judge, facing accusations of “aiding the Southern Confederacy” or outright serving “in the Southern army,” a Justice of the Peace had held court and appointed multiple county officials to fill vacancies “of officers which have resigned or are considered Disloyal.” So, the correspondents asked the governor, simply, “whether the court were held legal or not[?]” These five citizens of Wolfe County “want[ed] the Regular courts held and the proper officers appointed to do Business and if we are not on the Right Track if your honor pleas give us some instructions.”

Does so much turn-over of court officers suggest a dysfunctional system? It certainly might for Wolfe County. Elsewhere, documents from mid-to-late 1865 noting the reconvening of the county courts might hint that such wartime closures due to want of qualified, loyal officers were not uncommon.

At the same time, other documents point to an overburdened county court system due to a dramatic increase in crime that occurred during—and often as a result of—the war. Dozens of letters and petitions arrived daily on the desk of the governor asking for pardons and other forms of executive clemency. These suggest a functioning court system in other counties.

Even with all of CWG-K’s research into and charting of state government, such documents raise more fascinating questions than they answer at this stage. For example, in the process of researching the component parts of the state government, we learned that very little worked in the way we—and many other historians before us—had thought. Kentucky currently operates under its fourth constitution, but at the time of the Civil War it had only recently passed its third. Significant pieces of the government familiar to us today simply did not exist in the 1860s.

How has the balance of power between the executive, legislative, or judicial branch shifted? What powers has each branch of government gained or lost? How has our interaction with the federal government changed over time? Rich insights from CWG-K documents will help researchers answer some of these important questions.

[1] Ezkiel Hobbs, et al., to Beriah Magoffin, April 19, 1862, Office of the Governor, Beriah Magoffin: Governor’s Official Correspondence file, Petitions for Pardons, Remissions, and Respites 1863-1867, Box 4, MG4-412, Kentucky Department of Library and Archives, Frankfort, Kentucky.