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Locking up the witness

It’s a natural human phenomenon: we all tend to root for the underdog.

That was driven home this week after Monday’s blog post about a rather gruesome murder in Arkansas Territory that came to The Legal Genealogist‘s attention while — no surprise here! — poking through an old statute book.

The post told of how David Earheart and William Childers killed a business partner, Johnson Campbell, with whom they’d been operating a salt works close to what is modern day Fort Gibson, Oklahoma. A nasty tale of greed — the defendants in the case allegedly “shot and barbarously scalped Mr. Campbell, for the purpose of obtaining his little property…”1

One of the two statutes about the case had ordered the payment of expenses to one Samuel Lemmons who, the law reported, had “kept and guarded three prisoners from the fourth of July last, up to the second of August, two of whom, (to wit ; ) David Earheart and William G. Childers, charged with the murder, and the other John Bounyon a witness, who is unable to give security for his appearance upon the trial of the said David Earheart and William G. Childers…”2

Now think about that for a minute. “John Bounyon a witness, who is unable to give security for his appearance upon the trial” had been locked up in jail, the same jail as the defendants, “from the fourth of July last, up to the second of August” — and presumably wasn’t getting out any time soon.

And that sparked a comment on Facebook from Gloria Neiger Bushong: “The poor witness being locked up too, is the pretty interesting part. Poor guy.”3

What that “poor guy” was, in the words of the law, was a material witness — defined as a “witness who has significant information about the subject matter of a lawsuit or criminal prosecution, particularly when few, if any other witnesses have the same knowledge.”4

In general, he’s the guy without whom the case can’t be tried: in a criminal case, either the government doesn’t have enough evidence to proceed without this witness, or the defendant needs his testimony to establish an alibi or other defense.

But… but… but locking him up?

Yeah. And although it became a hot topic in the United States after the terrorist attacks of September 11, 2001, when material witness detention was often used (or misused) to hold those suspected of involvement when there wasn’t enough evidence to charge them,5 the fact is that it’s been the law for a long, long, long time.

Remember that we draw much of our legal principles from the British common law, and English law as far back as 1555 allowed justices of the peace to make material witnesses post some security to ensure that they’d show up for trial in cases of serious crimes: they could “bind all such (witnesses) by Recognizances or Obligation, as do declare anything material to prove the said Manslaughter or Felony, against such Prisoner . . . to appear at the next [sitting of the court] … to give evidence against the party…”.6

That concept — allowing a witness to be held until the next term of court if he didn’t promise to show up and testify and, at least in some cases, if he didn’t also post adequate sureties to back up his promise — remained the law here after the Revolution, and was part of federal law in the law setting up the very first federal courts, the Judiciary Act of 1789, which provided for “recognizances of the witnesses for their appearance to testify in the case; which recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment.”7


Many state laws followed the same practice. A New York statute in 1829, for example, provided for a material witness to give a recognizance (a promise to appear) and to provide sureties whenever the judge wasn’t satisfied that the witness would actually show up — and to toss the witness into the hoosegow if he didn’t provide the sureties.8 The Oregon Code of 1885 said exactly the same thing: “If a witness required to enter into an undertaking to appear and testify, either with or without sureties, refuse compliance with the order for that purpose, the court or magistrate making such order must commit him to the jail of the county until he comply or be legally discharged.”9

So yeah… a mere witness could be locked up because he couldn’t — or wouldn’t — post the kind of secured promise the court could rely on to ensure he’d actually show up at trial.

Back to Bounyon. What happened to him? The available records don’t say. You’ll recall, if you’ve been following this story, that Earheart and Childers managed to escape from jail and there’s no indication that they were ever caught.

The records don’t indicate whether Bounyon escaped with them, but there’s not a lot of justification for holding a witness if the defendants are on the lam. Not to mention that at some point, the Territory of Arkansas would get tired of paying to feed this guy.

At least we can hope so… poor guy, indeed…


  1. Judy G. Russell, “Reading the law,” The Legal Genealogist, posted 14 Dec 2015 ( : accessed 15 Dec 2015).
  2. “AN ACT for the relief of Samuel Lemmons,” 3 August 1821, in Laws of the Territory of Arkansas, Comprising the Organic Laws of the Territories of Missouri and Arkansas (Arkansas Post, Ark.: State Printer, 1821), 81-82; digital images, Google Books ( : accessed 13 Dec 2015).
  3. Comment posted 14 Dec 2015 by Gloria Neiger Bushong to Status Update, Judy G. Russell, posted 14 Dec 2015, ( : accessed 16 Dec 2015).
  4. Wex, Legal Information Institute, Cornell Law School ( : accessed 16 Dec 2015), “material witness.”
  5. See, e.g., Michael Greenberger, “Indefinite Material Witness Detention Without Probable Cause: Thinking Outside the Fourth Amendment,” Public Law and Legal Theory Paper Series, University of Maryland Law School, ( : accessed 16 Dec 2015).
  6. 2 & 3 Phil. & Mar. c. 10, § 2 (1555).
  7. §33, “An Act to establish the Judicial Courts of {he United States,” 1 Stat. 73, 91 (24 Sep 1789).
  8. N.Y. Revised Statutes, part 4, title 2, §§21-22, 24 (1829).
  9. §1617, Criminal Code, Title I, chapter 37, in William Lair Hill, compiler, The Codes and General Laws of Oregon, 2d ed., 2 vols. (San Francisco: Bancroft-Whitney Co., 1892); digital images, Google Books ( : accessed 16 Dec 2015).
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