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In 1867 I went to Labette County, and located on 160 acres of land three miles from where the notorious Bender family committed their horrible murders in 1873. Shortly after locating, together with all of the settlers on Timber Hill creek, I got mixed up in the Texas cattle fever trouble that broke out along the Indian Territory border.

At the time the trouble was on an old man and his son who was about 35 years old had taken up a claim on Big Hill creek down near the Montgomery County line, and had established a trading-post and were selling whisky to the Osage Indians, who had recently ceded their lands and were preparing to move south and west to their present reserve.
Milt Adams, James Bennett and myself were delegated to wait on the old man Curtis and son to tell them to quit selling liquor to the Osage Indians. They both denied ever selling them any at all. But we had the indisputable evidence from the best of sources that they had. I said: "Look here, you see that cabin down there on the prairie? That is the extreme frontier cabin that a white man lives in the border. That's John Bennett's home. And that was his wife, who, day before yesterday, was compelled to stand over a hot cook stove, in a little cluttered up room, and cook meat and bake nearly half a sack of flour into biscuits for a party of drunken Osage Indians that got their whisky here and went straight from here to Bennett's. You both know that in point of personal valor when sober the Osage is a coward, and cowards have to get drunk to be dangerous. Of course the worst injury Mrs. Bennett received was fright, and now that poor woman is prostrate and the Timber and Big Hill settlements will hold you fellows responsible for it."
A man by the name of Terwilliger had a large corral on Cherry Creek near its junction with the Nipawalla, or Drum creek, and on the western border of our settlement. He was grazing about 600 head of long-horned Texas cattle. He had repeatedly been requested to move his cattle farther west, beyond the danger-line, but paid no heed to the wish of the settlers. The day that Mr. Curtis and son were advised "to seek other parts," which they did, that same night, someone rode along the east side of Terwilliger's corral, where 600 steers were lying down chewing their cuds, and threw a big cat over the fence plump on a steer.
Ugh-ee! _Woof!_ and the ground fairly trembled. The stampede was on. The eight-rail staked and double-ridered fence was no barrier. Some of the rails were carried 200 feet from the fence. And most of the cattle were twenty-five miles southwest by noon the next day when their herders caught up with them.
It was suspected that the son of a Methodist circuit rider delivered the cat to the steer, his father having supplicated the Sunday before, "that we might be spared from the dreadful scourge of the Texas fever."
This fever was fatal to domestic cattle, but did not seem to affect the native cattle of Texas either at home or on the drive northward. And since the long-horned breeds have become nearly extinct, by crossing and recrossing of breeds, Texas fever is scarcely heard of now. But in early times in southern Kansas eternal vigilance from July to the first killing frost was the price of milk. Had the settlers not been vigilant those days the children along the border would have cried for milk; for Kansas had not yet made any dead-line legislation against Texas cattle.
During the latter part of the winter of 1869, the two Oden brothers killed young Parker over a claim dispute. The killing took place at the house on the disputed claim near the mouth of Onion Creek, on the west side of the Verdigris River, in Montgomery County, which was not yet organized. Osage township, the one I lived in Labette county, was the nearest judicial point to the place of the killing. A mob gathered and surrounded the Oden house near the scene of the murder, as it afterwards proved to be. The mob's purpose was to give the Odens a trial, with Judge Lynch on the bench. But when inky darkness came on, the Odens slipped by the guards and went to, and surrendered to the Justice of the Peace, Wm. H. Carpenter, of Osage township.
I was township constable at the time. Their revolvers, four in number, were handed to me. Subpœnas were given to me to serve on witnesses for the defense, in the neighborhood where the deed was perpetrated. I deputized Henry Waymire to take charge of Bill Oden during my absence; also, Mahlon King, the son of a Methodist minister, to go with me to Onion Creek and help to guard and protect Tom Oden, whom we took with us, by his own and also by his brother's request. Tom had told us, which proved to be true, that if he went home alone he might be killed; that his wife was in delicate health, and that he was anxious to see her and allay her fears about him.
We left the residence of the Justice of the Peace about four in the afternoon. It was twenty-five miles southwest to where we were to go. When darkness came on we were on a treeless prairie, taking a course for a trading-post near the mouth of Pumpkin creek, where we arrived about ten o'clock at night. We found about twenty-five men who had congregated there before we reached the post. We had tied a large woolen scarf around the neck, face, and head of our volunteer prisoner, and passed him off for one of my deputies. One of the witnesses that I was to subpœna was a clerk at this trading-post. I dismounted, went inside, and handed a copy of the subpœna to the clerk, took a look at the crowd, and was starting out, when one of the party asked me where the Odens were. My reply was, "Under a strong guard at Timber Hill." I was then asked who the other two fellows were outside. I answered, "Two deputy constables." I was then asked to take a glass of whisky. I replied that "I never drank," which was the second misstatement I had made to them. That was an ominous-looking crowd. I learned afterwards that my first lie had saved Tom Oden's life for a time, and perhaps Mahlon King's and my own. Had the prisoner not given himself up to the majesty of the law? And was he not entitled to a fair trial by the law? And would it not have been inexcusable cowardice had we not defended him to the last?
After leaving the traders we soon came to the Verdigris river, which was more than half bank-full, and was sparsely settled on both sides to the Indian Territory line. Near the mouth of Onion Creek we left our horses at an old negro's on the east bank of the river and called up Mr. Phelps, who lived on the west bank eighty rods down the river. At this time I did not know Mr. Phelps was to be the main witness for the State against the Odens. Tom Oden said to me, when we arrived opposite Mr. Phelps's, that "Old Phelps keeps a skiff, and if you will call him up we can cross here; then it is only a mile down-home, with a plain road all the way." Then he added: "I'd rather not let the old man know who I am at present, and if I was to call for him he might recognize my voice."
I hallooed twice, and the response was, "What is wanted?" I answered, "There are three of us here from the Timber Hills, and we wish to cross the river." He remarked: "It is now nearly midnight. Can't you go to the house a little way down the river and wait till morning? Then I'll row you over." I told him our business was urgent, and that "we must cross at once." He said, "all right; I'll soon be there."
When Mr. Phelps came down the bank he set a lantern in the bow of the boat. He did not use oars, but sat in the stern and paddled across, and, as he neared our side, let the boat drift to the bank, bow upstream.
I caught the gunwale at the bow and said to the prisoner, who yet had his head and face muffled, "Rogers, you get in first."
Mr. Phelps said, "I can't take but two of you at once."
I said, "Mahlon, you get in here, then, near the bow."
Mr. Phelps then asked me to hold the lantern up high, as he believed he could make the other bank at a place he wished to land better than if they took the lantern with them. The river here was about 200 feet wide, and very deep, with a strong current.
The boat had not gotten more than ten feet from the shore, when Oden shifted his position suddenly, which tilted the boat violently and threw Mr. Phelps into the river. I called to Mahlon King to throw me the bow-line, but he caught up the line and leaped towards shore, the bank at that place being a gradual slope towards shore. He made a few strokes, and found footing.
Phelps, being in the stern of the boat when tilted out, was farther out in the stream; for he had backed out to swing the bow around; and when pitched out he was in deep and pretty swift water. There were some long overhanging limbs just below him, which, on account of the swollen condition of the stream, nearly reached the water. Mr. Phelps was calling for help.
I dropped the lantern, jerked both six-shooters out of their scabbards, dropped them on the ground, ran down the stream about thirty feet, plunged in, and swam out under the branches, just in time to catch Mr. Phelps by his coat-sleeve with my right hand, at the same time holding on to a sweeping limb with my left hand. Soon we were ashore, paddle and all, for he had hung onto it while struggling in the water.
Here we were, three of us, wet as drowned rats, and Tom Oden, a cold-blooded murderer, dry as a powder-horn.
I had not the slightest suspicion at the time that Oden tilted the boat intentionally, hoping to drown Mr. Phelps in order to get rid of a damaging witness against the Odens. Replacing my pistols in their holsters, I got in the boat in front of Mr. Phelps and said, "Now, Rogers, get in and we will try it again, and be very careful and sit still."
Whether he thought, by my getting in the boat instead of King, that my suspicions were aroused and that I might shoot him in another attempt to tilt the boat, I am unable to say.
We went on to Oden's cabin, after crossing, and before a large open fireplace dried our clothing, and got a few cat-naps before daylight. All the time and throughout the entire day until we started back, Tom Oden was in an adjoining room with Mrs. Oden.
I left King at the house, and rode to different cabins that forenoon, hunting for the witnesses I had subpœnas for.
I could not help but notice that a pall had fallen over the people. Expressions of lament, and the high esteem in which Parker had been held by the entire community,—this, together with their outspoken condemnation, from men who had grown to manhood on the frontier, boded no good for the Odens. And I felt that the brand of Cain and the seal of death had been placed upon them.
When I came back to the Oden cabin I got King and Oden together and gave them my impressions; and Oden said, "Yes, there are men in this country that want us put out of the way." Meaning himself and his brother.
I said, "We must still carry out our deception and claim him as belonging in our party." Accordingly, we planned to leave for Timber Hill at four o'clock. I walked up to Mr. Phelps's, and got him to set me back across the river.
From there I went to the old darky's and got the three horses, and went down the river a mile and a half to where the other two men had crossed the river, quite at the mouth of Onion Creek.
After mounting I said: "Now, boys, you two keep right up the river, pass the old darky's, and head so as to cross Pumpkin creek half-way between the Verdigris and the trading post." (Before alluded to.) "I will strike straight from here to the post."
Then I said to King, "You know the course to the mouth of Wild Cat; keep straight on it, and if I am not there by the time you are, go to old Mr. McCarmac's on Big Hill and wait for me."
They started up the river. I rode out of the timber and brush that skirted the river and headed straight across the prairie for the trading-post.
When a little less than a mile from the place I came in sight of it and noticed a large crowd of men outside the store. I put my horse in a lope, galloped up to them and dismounted, saying, "Hello, boys."
This place was known as the Gokey Store. One of the Gokeys came up and shook hands with me (we were quite well acquainted), and he said: "So it was you that passed here last night. I just got in today with a load of freight and learned of the trouble just before you came in sight. Where are the other two men?" (He had been told that there were three of us passed his place the night before.)
I told him: "I do not know where they are, but I left them opposite the mouth of Onion Creek."
Gokey took me to one side and informed me that there were about twenty of the crowd had provisioned a wagon and were going to Timber Hill to be at the preliminary hearing of the Odens, which was to be held at a log school-house in our township, about one and one-fourth miles south of the justice's residence.
I omitted to state that when the Odens came up to surrender, they brought with them a young man by the name of Powell as witness for the defense. He was the only eye-witness to the killing of Parker, beside the Odens.
When I left the Gokey store, a few minutes after arriving there, the queer feeling of impending danger and trouble came over me, and that serious trouble might yet occur while those two prisoners were still in our charge.
Shortly after crossing the ford at the north and south trail, I struck off across a trackless prairie for the mouth of Wild Cat creek. I found on arriving there that King and Oden had crossed and were only a short distance ahead of me. It had become quite dark when I caught up with them. I said, "Look here, Oden, from this on we will have to use the utmost caution for your safety, while you are in my charge. So when we get to Big Hill you two fellows take the hill road and hurry on to Carpenter's, and I'll keep up the creek bottom trail to the school-house and bring some more deputies with me to Carpenter's;" which I did.
I arrived at Carpenter's after midnight with seven men whom I knew could be depended upon in any emergency. There were now at Justice Carpenter's the two Odens, young Powell, their witness, eight deputies and myself.
The time for the trial had been set for 2 P. M. the next day.
When we arrived at the school-house, just before proceedings commenced, we beheld a motley-looking crowd. There were about thirty of the Timber Hill and about fifteen of the Big Hill settlers. Added to these were the twenty-odd men from near the scene of the murder, twenty-five miles away.
There were men dressed in the garb of homespun butter-nut, a cloth made on the hand-looms of the day. Some were yet wearing their old army uniforms, the well-known sky-blue trousers, navy-blue blouse, with brass buttons with the American eagle upon them, the blue overcoat with the long or short cape,—a distinction between an ex-cavalryman and ex-infantryman. Others were there togged out in the then up-to-date store clothes and "biled" shirt. The horses were tied to wagons in front of the school-house, on the open prairie and to trees in the rear. Camp-fires were burning in different places, on each side and behind the house.
These men were walking arsenals. Nearly all were each carrying two six-shooters, and among them were rifles of many different patterns. One man could be seen with a long-barreled Hawkins rifle, while his neighbor carried an army Enfield, one a Springfield, and one man an old brass-band American musket. Some had the Gallagher, some the Spencer, and some carried Sharp's carbine.
Not a man was there through idle curiosity, but either to kill the Odens or see fair play. It was learned afterward that the twenty men who had come up from Gokey's had held a council just before they came to the school-house and decided that, in killing the Odens on that trip, they might have to kill others and at the same time sacrifice some of their own lives. They decided not to use one bit of testimony they had for the State. Simply let the whole thing go by default and bide their time.
So the trial came off—or rather, the hearing. Bill Oden, the first witness after young Powell had given his forced-by-threat testimony, stated to the jury that it was very unfortunate that he had killed the young man; that he only intended to disable him so that he could do no harm; had struck with the handspike a harder lick than he had intended.
Tom Oden said that Parker had murder in him when he came to the cabin; that he tried to reason with him, to no purpose; that had his brother not struck him with the spike before he shot the second time,—he claimed Parker had shot at his brother once; but Powell afterward stated that was false; that he, Parker, might have killed all of them. And all this time not a protest; while on the other hand, the Odens had made out a clean case of self-defense. The jury brought in, from under the boughs of an oak tree out in the wood, a verdict, "Guilty of an excusable homicide." Thus closed one of the greatest farces of a trial, in jurisprudence.
A few days after the Odens returned home they were literally bullet-riddled by a determined party of men, some thirty in number, starting from Chetopa and augmenting until Gokey's trading-post was reached.
Unintentionally, in the killing of the Odens, young Powell was shot through the bowels. He then swam the Verdigris river and escaped them, as he thought, at the time. He did not know that they held him blameless for his part in the Oden affair; but the mob, if such it could be called, had heard from his mother his own story to her of the killing of Parker, which was cold-blooded and cruel; also, the threat that if he did not tell the story of the killing as they told him to, they would kill him too. They told him that his mother was a poor woman who could not well spare him. Young Powell was possessed of very ordinary intellect, neither self-assertive nor self-reliant, and just such a subject as Tom Oden's magnetism could control.
Some of the party that came out from Chetopa, not knowing the Odens or Powell personally, fired on Powell as he started to run, when they came up to where he and Bill Oden happened to be as they were together at the time. But as soon as the mistake was noticed he was allowed to get away and the same party rendered him valuable assistance afterward.
I met young Powell in Chetopa, early in 1870. He told me that, as they were walking over the prairie toward home the next day after the trial, Tom Oden told him he had tried to drown Phelps the night he tilted the boat, but as Phelps had not come forward and testified against him it was just as well that he was not in the Verdigris river for fish-bait.
The following year, Montgomery County was organized, and her legal machinery was set and ready to grind.
That summer, a man by the name of Sam Heaton dropped into our neighborhood; went just over the line and took up a claim that the present site of Cherryvale is on. Leaving his wife, household goods and some lumber on the claim, Heaton, with four yoke of oxen and a large wagon, started to a saw-mill near Humboldt, about four days' journey, for more lumber. During his absence the covetous eye of a man named Soaper fell on the claim, and he ordered Mrs. Heaton to move off the land, stating to her that he was the first settler on it, and that his building material was on the ground near the southwest corner. Mrs. H. did not move.
The next day Soaper and a party of several men came and moved everything they had there at the time, except the tent she was in and what it contained, including herself, just over the line onto the next claim north. Mrs. Heaton stood in the door of her tent with a Smith & Wesson revolver in her hand, and refused to budge.
The men rode away, telling her they would be back in the morning and move _her_.
She mounted her pony that night and rode to Carpenter's, and stated her case. Carpenter came to where I was at work, on my own place, the next morning, and informed me what had happened. We soon gathered ten settlers together, mounted and galloped across that six miles of virgin prairie, laughing and joking like a lot of school-boys out for a lark, Mrs. Heaton riding along with us in the lead, her Smith & Wesson hanging to its belt around her waist.
In point of real value, for permanent home-making, we, perhaps, had crossed a dozen as good or better claims that could be had for the taking; for they were unoccupied portions of the public domain. But Heaton had selected the particular claim in question and "squatters' rights" was the slogan of the times. The moral law of every frontier settlement is held inviolate and will brook no interference. Besides, custom made propriety. And it was customary for a would-be settler to take any unoccupied piece of the public domain, to the extent of one hundred and sixty acres, that he wanted. Heaton had taken his claim in due form; for the day he located it I was with him. His headquarters were at my house, where he and his wife were camped while he was looking the country over for a home.
Heaton and myself were at every corner of the 160 that day. We were both riding horses fully sixteen hands high. The grass was not over eighteen inches high; the ground was fairly level; the tract was not cut up with ravines or draws. We both had excellent eyesight; there was not at that time a wagon-trail on it. Soaper nor anyone else had a vestige of lumber on the place the day he said he had. He simply lied, as his own conscience compelled him to afterward admit, after he had been the means of bringing two communities to the verge of a feud with bloodshed.
We all galloped to the tent, dismounted, and carried all the things back onto the claim and piled them up neatly by the tent. Then three of the men fell to and helped Mrs. Heaton get a mid-forenoon meal, while the rest of us rode diagonally across the claim to where Soaper had his lumber. We found thirty-two boards, one inch thick, one foot wide and twelve feet long, of native lumber, from a saw-mill over on the Neosho river, twenty-eight miles away. We wrote out a trespass notice, fastened it to a board, and returned to the tent, where shortly an early dinner was announced.
On our way down, in crossing a prong of Cherry Creek, a two-year-old spike buck white-tail deer jumped up, not more than thirty steps in front of us. John Oliphant whipped out one of his six-shooters and placed a ball in the back of its head where the neck joined on. It was quick action. He claimed he shot more at random than with deliberation. But it got the deer. We drew the carcass and Milt Adamson carried the deer in front of him to the tent.
While we were eating and had nearly finished our meal of fried venison, corn-bread, boiled potatoes and browned gravy, Mrs. Heaton announced that "horsemen were approaching from the south." We all arose from the improvised table, stirred around, gathered up our horses that were grazing around the tent, and awaited developments. There were four of them. They rode quite up to us, when Soaper said:
"How do you do, men?"
"Fine, fi-fi-fine," said Ike Vancel, who had a slight impediment in his speech. "We j-j-jist had a belly-full of d-d-deer meat."
This seemed to put both parties, for the time, in a good humor. Vancel was an acknowledged wit, was a polite and courteous gentleman, a man of sound judgment, and one who liked to see fair play.
Soaper was the next to speak:
"I seen you men here, and thought, me and these friends of mine, that we would come over and tell you that _I_ took this claim, and hauled lumber onto it four days before this other party did."
Carpenter said:
"I don't know anything about that part of it, but _we_, that are here, _all do know_ that it was a dirty, cowardly deed for you and your gang to come here and hector and threaten just one lone woman that only weighs eighty-nine pounds. You fellows make yourselves scarce, and if this woman is molested again during her husband's absence there will not be enough left of you, Soaper, to make soap-grease."
They rode away, Soaper saying: "We'll settle this in the courts." Two weeks later we were all arrested at our homes, charged with "committing a breach against the peace and dignity of Montgomery County, Kansas." We were all rounded up at Justice Carpenter's house, having been served with warrants, one at a time, by one lone half-Swede Constable. Anyone of us could have resisted him with impunity, so far as he was concerned. But the "process" was enough. We were law-abiding citizens.
Just as the last prisoner had arrived at Carpenter's, a lone horseman was seen approaching from the northeast. Our course to where we were going lay to the southwest. We waited for this horseman to come up to where we were, regardless of the protests of the constable, who insisted that "our trial was set for three o'clock that afternoon; that it was about ten miles to where we were to go, and we had no time to lose."
When the rider came up he proved to be a lawyer and a recent arrival from the east, hunting for a place to hang out a shingle. We had a short talk with him, and informed him of the cause of the gathering, whereupon he said:
"Go ahead, boys. I'll follow up and rob the dead."
This man was Bishop W. Perkins, afterward a member of Congress.
When we arrived at the place of trial, we found there a man by the name of Hartshorn, a lawyer, recently from Woodson county, who was to be the prosecuting attorney in the case. We were all a happy-go-lucky lot of prisoners; and when Hartshorn arose with a serious look on his countenance, read the complaint, and had expatiated on the gravity of the offense, we all arose and gave him three cheers.
"Bully for Hartshorn," said Ike Vancel.
The ridiculousness of the whole thing had appealed to the funny side of our natures. We called him "Old Essence of Ammonia," and yelled to him to "Give us another smell."
On the way down to the place, Perkins had volunteered to defend us. He now pitched in and handled a vocabulary of words that took us all by surprise. He juggled words and phrases in such rapid succession that he completely spellbound his hearers. He wound up by painting a word picture of frail little Mrs. Heaton, alone on a desolate prairie, about to be devoured by human wolves. When he closed, Vancel said: "I m-m-move that we adjourn," which we did, by getting on our horses and riding home.
Thus ended the second "legal farce" I had seen during the early settlement of southeastern Kansas.

       *       *       *       *       *
I was in Denison, Texas, when the news of the Bender murders was heralded throughout the land, and that one of my old neighbors was in jail at Oswego, under suspicion of being implicated in those crimes. He was the only man in the neighborhood with whom I had had any personal trouble, and that was caused by his hogs and my fence,—his hogs not being allowed to run at large by law, and my fence not being hog-tight. And over that difficulty we had drifted apart, and seemed to cultivate a dislike for each other.
He was a Methodist preacher, of the old Peter Cartwright school; but had an inordinate love for liquor, and, periodically, he would get "as full as a goose," and about as silly. When sobering up he would be struck with the remorse of a guilty conscience, for the sin he had committed and the example he had set before the people. He was judged by his neighbors while in these melancholy moods, as being insincere, hypocritical and mysteriously secretive. Not _all_ of us, for there were those of us who believed the old gentleman was conscientious in his religious preachings and teachings.
When I read the news of his arrest, I hastened to his relief, firmly believing in his innocence. And here the Golden Rule impressed itself upon my mind more than it ever did before. I believed that Parson King was as innocent of the crime as myself; but before I reached Oswego he had been vindicated and released from custody.
I went up into my old neighborhood where I had been one of the first settlers and had helped to build the first hewed log house that was built on the prairies of Labette county. A blight had been cast on the entire community. Not two miles from where I helped to build the house mentioned above, I gazed on the open graves of the Bender's victims. Personally, I think I was better known, and knew that people better in the first settlement of western Labette, eastern Montgomery, and southern Woodson, than any other man.
While John Harness, of Ladore, was suspected of being an accomplice of the crime, he undoubtedly was as innocent as his accusers were. 'Twas the same with Brockman, whom the Independence party hung to a tree on Drum creek until life was almost extinct; although Brockman was a cruel and inhuman man to his own family.
No, the Benders had no accomplices. But neighbor had distrusted neighbor, and some were standing aloof from others.
I sold farm machinery in that locality the summer of the spring that the Benders disappeared and the bodies of their victims were found. I was traveling for B. A. Aldrich, a hardware man of Parsons, Kan. I was from house to house, and became familiar with all the neighborhood stories, versions, and suspicions about the Bender murders.
What became of the Benders? Read on in this book under the caption of the "Staked Plains Horror" during the summer of 1877. Listen to the story as told to me, as the narrator and I were lying on our blankets, with our saddles for pillows, the night of the 20th of July, on the border of western Texas and eastern New Mexico. Then let the readers judge for themselves what became of the Benders. Yes, let them decide for themselves as to the truth or falsity of the story. I believed the story _then_, I believe it _now_.