Billy the Kid

by Robert M. Utley

  The attachment process, a civil action, was the least of McSween’s troubles. The criminal charge of embezzlement underlay a much more immediate danger. Judge Bristol had required him to post bond for his appearance at the spring term of district court to answer the charge. But District Attorney William L. Rynerson, a friend and ally of Dolan’s, refused to accept McSween’s bondsmen on the spurious ground that they were not worth the amounts pledged. The plot, of course, was to force McSween to spend six weeks in Brady’s jail while awaiting his court hearing. Once there, as a report that reached Mac on February 24 indicated, Dolan would bring in Jesse Evans “to do his part.” Plainly a fugitive from the law after Rynerson sent back his bond disapproved, McSween made out his will and fled Lincoln.15

  McSween thus relinquished control of his little army. Neither he nor Martínez had managed it very well anyway. If it were to function at all, it demanded more aggressive leadership. A new chief materialized in the person of Dick Brewer. When Martínez returned his warrant unserved on February 22, Justice Wilson wrote out a new warrant, appointed Brewer a “special constable,” and empowered him to arrest the men named as Tunstall’s murderers.16

  Under the captaincy of Dick Brewer, the Martínez posse emerged as the “Regulators.” For the next five months, claiming the sanction of the law, they fought McSween’s battles. Tunstall had promised them four dollars a day to ride in his cause. McSween could pay nothing; by February 1878, he was as bankrupt as Dolan and Riley. But the lawyer held forth the prospect of monetary reward by Tunstall’s father, and he seems occasionally to have provided food and ammunition. Thus the Regulators were not mere mercenaries. Although they hoped to be paid, they also felt genuine outrage over the slaying of Tunstall and the tyrannies of The House. With an odd mix of sincerity and cynicism, they portrayed themselves as an arm of the law contending with other arms of the law that had been corrupted.

  Although regulator was another word for vigilante, McSween’s men were not typical vigilantes. Like vigilantes, they saw themselves as a force organized to “regulate,” or set right, an intolerable situation. Like vigilantes, also, they elected their officers and bound themselves by an oath. Unlike vigilantes, however, they had not formed in the absence or breakdown of the regular law enforcement and judicial machinery. The machinery had not broken down but rather had been captured by the other side. The McSween Regulators presented themselves as agents of the law—the justice of the peace court—and not as extralegal friends of the law. Although displaying some characteristics of typical vigilantes, the Lincoln County Regulators did not ride in the mainstream of the American vigilante tradition.17

  The strength of the Regulators ranged in number from ten to about thirty, and in the big shootout in Lincoln in July it reached sixty. Sometimes Hispanics rode with the Regulators, but the core group consisted of about a dozen Anglos. Billy Bonney served faithfully and participated in every major operation and armed encounter. Other former Tunstall hands who signed up were John Middleton, Fred Waite, and Henry Brown. Billy’s old friends Charley Bowdre and Frank and George Coe were members, as was Doc Scurlock. A particularly formidable warrior, recently on Chisum’s payroll, was “Big Jim” French. Others of the faithful included John Scroggins, Steve Stanley, and Sam Smith.

  Still another Regulator was Frank McNab, a “cattle detective” from the Texas Panhandle who now worked for Hunter, Evans & Co. John Chisum had sold all his herds to this firm but continued to manage them in behalf of the company. Thus McNab’s interest focused on the rustlers who preyed on the former Chisum holdings. Since the rustlers were chiefly Seven Rivers stockmen, including Dolan’s hands on the Pecos, the Regulators offered McNab a way of pursuing his mission. His ties to Chisum, of course, made him anathema to the Seven Rivers crowd.18

  In time the dozen Anglos who formed the heart of the Regulator force forged close personal bonds and took on a powerful sense of mission. They subscribed to an oath they called the “iron clad.” It bound each, if caught, not to bear witness against any of the others or to divulge any of their activities.19

  Thus the factions that fought the Lincoln County War both claimed to be instruments of the law. On the one side stood the county sheriff, backed by the district judge and the district attorney. The sheriff’s posse consisted chiefly of men who worked for Jimmy Dolan or had strong reasons for supporting him. On occasion the Dolanites were joined by Seven Rivers cowboys, who favored Dolan because John Chisum had lent his name to the Tunstall-McSween cause. On the other side stood the Regulators, led by a “special constable” appointed by the justice of the peace and carrying an arrest warrant issued by his court. Under color of law, both sides were about to engage in a great deal of unlawful activity.

  The most wanted man named on the warrant in Dick Brewer’s pocket was Billy Morton, head of the subposse that had cut down Tunstall and one of the three men who had fired the fatal shots. Twenty-two years old, the offspring of a prominent southern family, Morton boasted a quick mind and a good education. A sister remembered him as “wild and reckless, but brave, tender and generous.” He had worked for Dolan for a year or more, and as foreman of the Seven Rivers cow camp his principal mission was to enlarge the Dolan herds by converting the long rail brand of John Chisum into the arrow brand of Jimmy Dolan.20

  The first important operation of the Regulators was therefore to ride down to the Pecos and look for Billy Morton. On March 6 they spotted him in a group of five horsemen about six miles up the Peñasco from the Pecos. A stirring chase followed. The pursued split, but the Regulators kept after two men who turned out to be Morton and Frank Baker. As a Jesse Evans henchman, Baker’s name also occupied a prominent place on the arrest warrant, although he had taken no part in the Tunstall slaying.

  For five miles Brewer and his men raced in pursuit, firing some one hundred shots in a vain attempt to bring down the quarry. At almost the same moment, the horses of Morton and Baker gave out from exhaustion, and the two men took cover in a prairie depression. A shouted parley ended in Brewer’s promise to guarantee their safety, and they yielded their arms and surrendered. “There was one man in the party who wanted to kill me after I had surrendered,” Morton wrote two days later, “and was restrained with the greatest difficulty by others of the party.” This man was probably Billy Bonney.21

  With their prisoners, the Regulators made their way up the Pecos to John Chisum’s South Spring ranch. En route, they fell in with William McCloskey, Tunstall’s former employee at the Feliz ranch and a friend of Morton’s. Brewer distrusted McCloskey. He had been altogether too close to Mathews’s possemen and in fact had even ridden with Morton’s subposse. Only a tired horse had kept him from the scene of Tunstall’s killing.

  Morton feared that he would never see Lincoln. He had good reason for anxiety. Aside from the Regulators’ appetite for vengeance, what to do with the captives posed a problem for Brewer and his men. Already, rumors reached them that Dolan was forming a rescue party, and even if they made their way safely to Lincoln, Sheriff Brady could hardly be trusted to ensure that the prisoners remained in custody until court convened, especially since he denied the validity of Justice Wilson’s warrant. Brewer had betrayed his misgivings at the time of the surrender. “The constable himself said he was sorry we gave up,” wrote Morton, “as he had not wished to take us alive.”22

  On March 8 the party stopped at John Chisum’s South Spring ranch. Here Billy fell in with Will Chisum, John’s fourteen-year-old nephew, who was tending the ranch’s milk cows. Billy asked if Will had any fishhooks. Will said he did and got out his fishing gear. The two went to the banks of the South Spring River and, as Will remembered, “hauled them in.”23

  While the two boys hauled them in, Billy Morton penned a letter to a friend in Richmond, Virginia. He described his predicament, recounted his capture, speculated that he might be murdered en route to Lincoln, and asked that if his fears proved correct the circumstances be investigated.

  The next morning, March 9,
the Regulators rode over to Roswell and reined in at Captain Lea’s store, which also housed the post office. Morton entrusted his letter to Postmaster Ash Upson. McCloskey, who shared Morton’s fears, told Upson that he had decided to stick with his friend. Threats had been made to kill the prisoners, he said, but it would not be done as long as he lived.24

  Upson provided a glimpse of Frank Baker at this time. “His countenance was the strongest argument that could be produced in favor of the Darwinian theory,” he wrote to his niece a few days later. “Brutish in feature and expression, he looked a veritable gorilla.”25

  That evening a traveler arrived in Roswell with word that the Brewer party had left the main road and taken the little-used trail up Blackwater Creek and through the Capitan foothills. This tended to reinforce the foreboding Morton had expressed, although it could also have signified a tactic to avoid tangling with a Dolan rescue party.

  At dusk the next evening, March 1, Frank McNab rode into Roswell with a report of what had happened. On the Blackwater, Morton had suddenly leaned over, grabbed McCloskey’s pistol from its holster, and shot him dead. “Although mounted on a poor slow horse, he put him to his best speed closely followed by Frank Baker,” said McNab. “They were speedily overtaken and killed.” At the same time, in Lincoln, Brewer told the same story to McSween.26

  McSween happened to be in Lincoln because he had decided to come out of hiding and face whatever Sheriff Brady might offer. He had arrived on the afternoon of March 9, however, to find his cause a shambles. Only hours earlier, New Mexico Governor Samuel B. Axtell had been in Lincoln to investigate the troubles. His visit attested to Dolan’s continuing success at outmaneuvering his opponents. Dolan enjoyed cordial relations with most of Santa Fe’s political and business establishment, most notably United States District Attorney Thomas B. Catron, the most powerful man in the territory. Catron, in fact, held a mortgage on The House and all its property, which gave him a stake in the Lincoln County War. Axtell thus came predisposed to Dolan and remained deaf to all explanations by the other side.

  The governor’s three-hour stay in Lincoln shredded McSween’s blueprint. In a formal proclamation, Axtell declared Squire Wilson to be occupying the office of justice of the peace illegally and named Judge Bristol and Sheriff Brady as the only instruments of the law in the county. With a few strokes of the pen, Axtell knocked the supports from McSween’s strategy. Without the authority of the justice of the peace, McSween and the Regulators could not claim to be enforcing the law.27

  In addition, as McSween had to explain to Dick Brewer the next day, if Wilson’s tenure had been illegal all along, that meant that his arrest warrants and his appointment of a special constable were likewise illegal. If the Regulators had never had any authority to act as officers of the law, they opened themselves to charges of false arrest and, however the killings on the Blackwater happened, murder as well. Already, according to McSween, Dolan had taken steps to have the Regulators run down and arrested. The only solution seemed to be for the Regulators and McSween alike to take to the hills and hide until district court convened and untangled the legal snarl.28

  When the killings of Morton, Baker, and McCloskey became known, the Dolan forces hurled the charge of murder back on their opponents. As with the slaying of Tunstall, the only witnesses were the killers themselves. No one could dispute the official version, but as Ash Upson observed, “This tale was too attenuated. Listeners did not believe it.”29 They did not think that Morton could have been so foolhardy as to attempt a break or that he would have killed the only friend he had in the group. That the bodies of both Morton and Baker each bore eleven bullet holes, one for each Regulator, looked suspiciously like deliberate assassination.

  And such it probably was. Although no participant ever admitted to any but the official version, just as plausibly the Regulators could have agreed among themselves to do away with their captives. When McCloskey objected, one of the group simply blew him off his horse. The shot signaled Morton and Baker to attempt a desperate break, and they were indeed gunned down while attempting to escape. The exact truth can never be known, but the holes in the official story are big enough to entitle one to believe that Morton, Baker, and McCloskey were as surely murdered as was John Henry Tunstall.30

  The Blackwater shootings gave Billy Bonney his second recorded experience with homicide. In his first, he alone had shot and killed Windy Cahill. In his second, he had shared the deed with others. Although Ash Upson credited Billy with the marksmanship that dropped both Morton and Baker, who fired the fatal rounds cannot be known. For a virtual certainty, however, at least one of Billy’s bullets wound up in Morton and one in Baker.

  For Billy Bonney, alias Kid Antrim, the three weeks following the death of Tunstall were packed with action and adventure and replete with new experiences. For the first time, he had a cause to which he could dedicate himself wholeheartedly—revenge for Tunstall. In the Regulators he had congenial comrades with whom to share adventures, hardships, and dangers; men he liked and respected and learned from; men who must have given him a richer sense of belonging and mission than did the shallow, shoddy, and evil thugs who made up the Jesse Evans gang. By their example and the task they had set for themselves, the Regulators lifted Billy Bonney from anonymity and provided the conditions and opportunity for his progress toward adulthood. In the confused maneuvers that marked the days after the slaying of Tunstall, Billy showed himself among the most willing, daring, and brave of the McSween followers. If not yet officer caliber, he had grown into a tough, energetic soldier with plenty of potential for leadership.

  As George Coe remarked, “Billy the Kid wasn’t known then as a warrior. We just knew him as a smart young lad and we named him Kid. But he grew bigger and bigger.”31

  6

  The Assassin

  Unlike most of the young bravos locked in combat for supremacy in Lincoln County, William Brady was a mature man of forty-eight. He had lived a full and useful life. Born in Ireland, he had emigrated at age twenty and, in common with many countrymen, adapted to his new nationality in the hard school of the regular army. During the 1850s he had put in two five-year enlistments in the Regiment of Mounted Riflemen, rising to the rank of sergeant and becoming an experienced Indian fighter on the frontiers of Texas and New Mexico. Discharged in 1861, on the eve of the Civil War, he had promptly won a commission in the New Mexico Volunteers. His wartime service, chiefly against Indians, revealed him to be a firm, seasoned, able combat leader, and he was mustered out in 1866 as a captain with a brevet of major.1

  A tour of duty at Fort Stanton had introduced Brady to the Bonito country, and he returned to homestead a farm east of Lincoln, then called La Placita del Rio Bonito. Over the next decade he emerged as one of the valley’s most respected citizens, a family man and a leader in building the fledgling community. He served variously as sheriff, U.S. commissioner, and first elected representative of Lincoln County in the territorial legislature. He also became a close friend and associate of Lawrence G. Murphy’s; they were both Irish immigrants, both former sergeants in the regular army, both wartime officers in the volunteers, and both prominent citizens of Lincoln County. To cement the connection, for years Brady was heavily in debt to Murphy. Understandably, the relationship with Murphy predisposed Brady to favor Dolan in the troubles that broke out early in 1878.

  As county sheriff, Brady dispensed a brand of law enforcement typical of first-generation frontier communities all over the West. Personal, pragmatic, capricious, physical, and final, it expressed the fine points of the law less than the instincts of the man behind the badge. Because of vast distances and nonexistent transportation, it prevailed mainly in the county seat and the immediate vicinity, and only there when Brady came to town from his farm three miles down the valley. Ash Upson sized up the sheriff of Lincoln County with acute insight:

  Major Brady was an excellent citizen and a brave and honest man. He was a good officer too, and endeavored to do his duty wit
h impartiality. The objections made against Sheriff Brady were that he was strongly prejudiced in favor of the Murphy-Dolan faction—those gentlemen being his warm friends—and that he was lax in the discharge of his duty through fear of giving offense to one party or the other.2

  Except for pressing the attachment process to absurd extremes, Brady had in truth pursued McSween with a laxity that probably irritated Dolan. Occasionally Brady even let slip a word of sympathy for the beleaguered attorney. His pocket contained a writ of attachment signed by Judge Bristol, yet he did nothing to recapture the Tunstall store after being evicted by the Martínez posse on February 20. His pocket also contained an arrest warrant signed by Judge Bristol, yet he showed little disposition to track down McSween and throw him in the cellar jail. Brady’s seeming lethargy probably signified an inclination simply to procrastinate until district court met and settled the issues one way or another.

  To McSween, however, Brady was almost as villainous as Dolan. His handling of the attachment had enraged the lawyer, and the very existence of the arrest warrant in the sheriff’s possession kept McSween on the run. If he had to spend any time in the Lincoln jail awaiting the opening of court, he was certain that Brady would look the other way while Dolan brought in Jesse Evans to “do his part.” Some of McSween’s followers, moreover, had special reasons for hating Brady. He had physically mistreated George Coe and Charley Bowdre, and he had “cursed and abused” Bonney and Waite, held them prisoner for thirty hours, and then turned them loose without giving back their arms.

  Lincoln, New Mexico, in 1878

  Throughout the last three weeks of March, the Regulators lay low. Most of them probably remained quietly in their homes. Bonney and Waite seem to have passed the time in the congenial surroundings of San Patricio. Late in March, however, Billy, Fred, and the rest of the faithful gathered for a meeting with McSween. His wife, Sue, had returned from the East, and the two had been living at John Chisum’s South Spring ranch.