Wrong Side of the Law (3 page)

While the startled cowboys dashed to Foster’s aid, Spencer ran into the barn and saddled Campbell’s fastest horse. When he came out, he waved the rifle at the other cowboys and warned them to stay away from him. Then he galloped off.

At the moment, the cowhands were less concerned about apprehending Spencer than they were about getting Foster to the hospital in Kamloops. They put him in a buckboard and raced to town. A doctor removed the bullet, but the internal damage was too great. Foster died early the next morning. That same day a coroner’s inquest held in the Kamloops court house came to the conclusion that: “Pete Foster came to his death by means of a rifle ball, shot from a rifle in the hands of Frank Spencer and that he [Spencer] is guilty of willful murder.”

Posses of British Columbia Provincial Police and volunteer cowboys scoured the countryside in search of the killer. But Spencer stayed off the main trails and camped without fires. A week after the shooting, he crossed the border into the state of Washington. A few weeks later, Lew Campbell posted a reward for the return of his horse, saddle, and Winchester. Nobody came forward with information. Frank Spencer had left a cold trail. As far as Canadian authorities knew, he had fled all the way to Mexico.

In fact, Spencer had gone no farther than Oregon, where he again hired out as a cowboy and kept out of trouble. Two years passed after the Foster murder and nobody came looking for him. Spencer thought that the trouble in Canada had blown over.

In the spring of 1889, Spencer was working for an Oregon rancher who asked him to accompany a group of cowboys who were taking some horses by steamer to New Westminster. Spencer cheerfully agreed. It didn’t even seem to occur to him that it would be unwise for him to set foot in British Columbia.

After the steamer had docked and the horses were unloaded, the cowboys were paid. Spencer headed straight for the nearest saloon. He spent the next few days making the rounds of the grog shops on Columbia Street. Spencer was standing at a bar, quietly enjoying a drink, when a policeman put a hand on his shoulder, and, to his astonishment, told him he was under arrest. Someone from Kamloops had recognized him. Spencer was unarmed and had no choice but to accompany the officer to the New Westminster jail, protesting all the way that it was a case of mistaken identity.

Spencer was taken to Kamloops. At a preliminary hearing held in the fall, eight witnesses identified him as Frank Spencer, the man wanted for killing Pete Foster. He was bound over to the spring assizes to be tried for murder. A reporter for the
Inland Sentinel
wrote, “He does not present the appearance of a man who would commit so serious a crime as that with which he is charged.” Evidently, the reporter was unfamiliar with Spencer’s outlaw history.

Spencer was tried on June 2, 1890. He was convicted and sentenced to hang on July 21. When that morning dawned, Spencer had been awake all night, pacing his cell in his leg irons. He refused a last breakfast, but drank a cup of tea. He was thirty-six years old and had outlived many of his rustler comrades, most of whom had died with their boots on in gunfights or vigilante lynchings. Before he was taken from his cell, Spencer made a last request: a pair of slippers that he could wear to the gallows instead of his boots. The request was granted.

Jack Dubois

Jack Dubois, a.k.a. Jim Palmerston, settled on Big Knife Creek near Galahad, Alberta, in 1902. A robber and rustler, he was a wanted man throughout the American West. Dubois had shot and killed a man in Arizona, but managed to have himself acquitted of a murder charge.

In Canada, Dubois started up a ranch with about fifty head of cattle. From all appearances, he was a legitimate American stockman who had come north to take advantage of cheap grazing land. But the ranch was just a cover. Dubois was an expert with a running iron and the cowboys who worked for him were veteran rustlers.

Dubois’s neighbouring ranchers began losing a lot of cattle. They couldn’t help but notice that his herd was not only untouched by cattle thieves, it was also growing larger. Several times angry ranchers charged Dubois with stealing their livestock, but they couldn’t prove it in court. In Montana or the Dakotas, a vigilante gang might have paid the Dubois ranch a midnight visit, but lynch law was a rarity in Canada.

Dubois was making big money off stolen cattle while he thumbed his nose at the Royal North-West Mounted Police, who just couldn’t produce solid evidence against him. Flush with success, he expanded his rustling operation in 1908. Dubois moved into the Hand Hills, from which it would be easier to drive rustled cattle across the American border.

Determined to break up the rustler gang, the Mounties assigned a single officer to nail Dubois. Sergeant Robert Weld Ensor was a tough, tenacious, and dedicated policeman. His assignment was to shadow Dubois and his riders. He was to document every move they made and investigate every reported incident of cattle theft.

Connecting the wily American rancher to the rustling epidemic was a daunting task. Ensor had a thousand square miles of territory to cover and the men he was after were experts who knew how to make cattle disappear. Ensor’s biggest advantage lay in the support of the beleaguered ranchers.

To avoid drawing attention to himself, Ensor put aside his uniform and dressed in the plain clothes of an ordinary cowboy. Instead of a police mount, he had a string of four cow ponies. If he needed fresh horses, ranchers gladly provided them. They also gave the Mountie every scrap of information they heard about Dubois and his men.

Ensor drifted around the territory like a cowboy riding the grub line. He discreetly asked questions and wrote down descriptions of missing cattle. At night he would slip in amongst Dubois’s herd, looking for other ranchers’ brands and brands that appeared to have been altered. Whenever he found a suspect animal, he quietly cut it out of the herd and took it to a neighbouring ranch where it would be kept hidden while he continued to gather evidence. Rustling from the rustlers was dangerous, because the Dubois riders wouldn’t hesitate to reach for their guns if they caught him.

Meanwhile, a young homesteader from England named Henry Brace lost his entire small herd to rustlers. Brace had worked hard to get established on a parcel of land about a hundred miles northeast of Red Deer. He wasn’t going to take the theft lying down. He convinced his fellow ranchers to form a delegation to take their complaints against Dubois right to Charles Cross, the attorney general of Alberta. They did that, but Cross passed them on to Superintendent A.E.R. Cuthbert of the Royal North-West Mounted Police.

As he had done many times before, Cuthbert explained to the ranchers the difficulty of building a legal case against the Dubois gang. Then he suggested that if one of the ranchers could infiltrate the gang, he might be able to provide valuable inside information for Sergeant Ensor. Brace, who was the youngest and unmarried, accepted the risky job.

Brace rode to the Dubois ranch, posing as a novice cowboy looking for work. His British accent helped him pass himself off as a greenhorn. He must have made a good impression on Dubois because he was hired. Brace had already mastered such cowboy skills as horsemanship and roping, but he put on a convincing act of learning on the job.

As a spy for the Mounties, Brace proved to be invaluable to Sergeant Ensor. He rode with the gang when they ran stolen cattle across the border. He learned the identities not only of the rustlers, but also of their shady business contacts on both sides of the line. He found that Dubois lorded it over a rustling empire that included much of southern Alberta, northern Montana, and part of Idaho. Brace was also able to report that years of committing his crimes with impunity had made Dubois cocky. He was getting careless about covering his trail. Ensor built up a considerable file of evidence. By late March 1909, he felt he was ready to move in on the Dubois gang.

On March 25, wearing his scarlet tunic and accompanied by two constables, Sergeant Ensor rode out to a ranch at Battle River. The owners, brothers named Jim and Irven Holt, were known confederates of Jack Dubois. Irven had served five years in the Idaho territorial prison for horse theft. Ensor was certain that these hard cases would try to shoot it out. But he took them completely by surprise and they gave up without a fight.

The next day the Mounties continued their round-up with the arrests of Abe and Louis Solway and Joe Cardinal. All three were principal Dubois henchmen. The police took the prisoners to the town of Stettler where they could be locked up while Ensor went after the main quarry, Jack Dubois.

However, at Stettler, Ensor learned that Dubois had somehow got word of the Mountie sweep and had fled. He sent the two constables to watch the ranch at Hand Hills in case Dubois showed up. Then Ensor resumed the painstaking task of gathering evidence.

Dubois didn’t return to the ranch. Instead, he boarded a train for Calgary. The local Mountie detachment heard he was in town and arrested him in the office of lawyer Paddy Nolan, a hard-drinking Calgary legend who was known for his success in defending bootleggers, horse thieves, disorderly persons, and prostitutes. Dubois was packed off to join his men in the Stettler jail.

Sergeant Ensor had seized almost four hundred head of cattle from the Dubois and Holt ranches. Stockmen examined them and identified several as their property. Nonetheless, the legal fight with the rustler boss was just beginning.

Irven Holt was sentenced to nine years in the provincial penitentiary at Edmonton. His brother Jim got two years. Joe Cardinal and Louis Solway received relatively light sentences of a few months and Louis’s brother Abe got off scot-free. Sergeant Ensor was certain that the evidence he and Henry Brace had compiled would put Jack Dubois behind bars for a long time. He was in for a great disappointment.

As a career criminal, Dubois knew how to work all the angles. He had a lot of money, and therefore a lot of influence. He allegedly spent more than $20,000 on his defence; a princely sum at that time and still just a fraction of the fortune he had accumulated over years of selling other people’s cattle.

Dubois hired the very best legal talent. He was able to delay proceedings so that it took months for the prosecution to drag the case through the courts. This was an enormous drain on the slender provincial budget. Ensor looked on with disgust as finally the charges against Dubois were dismissed. The judge ruled that actual ownership of the allegedly stolen cattle had not been clearly established.

For the first time in Alberta history, the Crown appealed a court ruling. The Supreme Court of Alberta overturned the decision of the lower court and ordered a new trial. This time Jack Dubois was sentenced to five years in prison.

But the outlaw wasn’t finished. While Dubois sweated at hard labour in the penitentiary at Fort Saskatchewan, his lawyers went to work. They appealed his conviction and finally convinced a court that the allegedly stolen cattle had been branded by mistake without his knowledge. Dubois was released after serving only nine months in prison. With his rustling operation broken, he got out of Alberta. Members of his gang who hadn’t been arrested had long since fled to parts unknown. Alberta was at last rid of what one rancher called “a pest worse than mange.”

Sam Kelly

Butch Cassidy’s Wild Bunch was the last of the big outlaw gangs of the American Old West. The gang’s principal hideout and headquarters was an isolated place called Hole-in-the-Wall, in Wyoming. But Cassidy (real name Robert Leroy Parker) was smarter than most bandit gang leaders. Rather than rely on one place of refuge where he and his riders could be safe from the law between robberies and large-scale rustling operations, he had a string of hideouts that stretched from Mexico to Canada. The northernmost Wild Bunch sanctuary was a cave in the Big Muddy region of Southern Saskatchewan, just across the international border.

Originally a wolf’s den in the side of a butte, the cave had been enlarged so that several men could live there in relative comfort. It had an emergency escape tunnel and a water supply. A nearby high point called Peake’s Butte made a good lookout post. Like other Wild Bunch hideouts, the Big Muddy cave was kept well-stocked with food. Horses could be stabled in another cave nearby.

Butch Cassidy’s gang included a number of desperadoes whose names are among the most infamous of Old West bandits: the Sundance Kid (Harry Longbaugh), Kid Curry (Harvey Logan), Ben “The Tall Texan” Kilpatrick, and Bill Carver. There is no evidence that Butch Cassidy himself ever visited the Big Muddy cave, but legend has it that the Sundance Kid was often there. Sundance was in fact well acquainted with Canada, having worked on ranches in the Calgary area between bank and train robberies in the United States. He even briefly went into partnership in a Calgary saloon with a man named Frank Hamilton. Foolishly, Hamilton tried to cheat the Kid out of his share of the profits. Sundance collected his money — at gunpoint — and dissolved the partnership.

Canadian outlaw Sam Kelly rode with the Wild Bunch, also known as the Hole-in-the-Wall Gang, led by Butch Cassidy, seated at right. Kelly wasn’t present for this photo. Seated at left is the Sundance Kid, who sometimes visited Alberta between bank and train robberies.
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