A READY FINANCIAL RELIEF. 543
But many of the trade and farm papers have taken it up
warmly, and are using their columns freely to promote it.‘
They recognize that it will not only end our present finan-
cial troubles, but prevent a recurrence of them by removing
the causes which produce financial disturbances.
It is not expected that all this will be brought about
Without a struggle. Already the epithet “wild cat” has
been hurled at the scheme, but it does not stick. And,
besides, the present panic has uncovered too many wild
cats among existing or recent banks for this to have much
force as an argument against reform. But one thing is cer-
tain, that the plan is so simple and easy of application, and
the reform is so sweeping, that men recognize that it is
Worth trying. Not the least among the benefits to be derived -
is that men will be taught to look to their own efiorts -
for relief from evils, instead of depending upon a lot of
politicians, called government, to obtain it for them.
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j JUDGE GARY AND THE ANARCHISTS.

BY BI. l\I. TRUMBULL.

1 .
AFTER the so-called Chicago anarchists'have been six
tears in the grave, Judge Gary grants them a new trial, in
W“ Wed forum of his own selection, The Century Magazine. In

this new trial he performs all the duties of judge, jury, prose-
outing attorney and sole witness. In each and every char-
acter he is consistently partial, prejudiced, and unfair. He
is always against the prisoners. .
Whether it was remorse or politics or self defence that
inspired the article, matters not, but it must have been a
strong motive, because it is not usual for judges, after pun-
ishing men with death, to try them over again in a pictorial
magazine, and such a novelty is a breach of judicial decorum
that goes far to justify a suspicion that the original trial was
not fair.
In this post mortem trial, Judge Gary appears as a witness
knowing that he is exempt from the test of cross examina-
tion. He is not sworn to tell the truth, the whole truth, and
nothing but the truth. He is privileged to tell just as much
and as little of the truth as may please him, and to tell it
in his own way. , .
If Judge Gary desired candidly to invoke the calm judg-
ment of his readers, why did he try to move their feelings
by sensational pictures? What use other than to excite
the emotions could he have had for those theatrical bits of
art, “ The Jury Going to the Court House,” “ Turning back
the Anarchists,” “ Captain Ward Commands the Crowd to
Disperse,” “The Monument to the Martyred Police,” and
all the rest of it? Why divert the attention by portraits,
especially the portraits of seven bombs, two of them
“ poisoned bombs ”? Judge Gary finds it easier to inflame
the passions than to convince the judgment, and therefore he
imitates the lawyer-like tactics adopted by the prosecution at
the trial. '
Explaining his reasons for writing the article, Judge
Gary says:—
- ' .544

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genes GARY AND THE Amnomsrs. 545
' The motive, then, or at least the principal motive, of this paper is
to demonstrate to my own profession, and to make plain to all fair-
_ minded, intelligent people, that the verdict of the jury in the case of
the anarchists was right; that the anarchists were guilty of murder;
that they were not the victims of prejudice, nor martyrs for free
speech, but in morals as well as in law were guilty of murder.
Therein is an unfortunate admission that after having had
seven years to think of it, thebar of Illinois is not satisfied
that the verdict was right; and as nobody else will do it,
the hard necessity is thrown upon Judge Gary himself to
“demonstrate ” in a magazine article to his own profession
that the anarchists were guilty of murder. This is a humili-
ation to which no other judge has descended in our time.
Before Judge Gary can “ demonstrate ” anything, he must
first reverse himself, and contradict this letter which he
' wrote to the governor of Illinois: —
CHICAGO, 111., Nov. 8, 1887.
To the Honorable Richard F. Oglesby, Governor, etc.
SIR: On the application of Samuel Fielden for a commutation of
his sentence, it is not necessary as to the case itself that I should do
more than refer to the decision of the Supreme Court for a history of
his crime.
Outside of what is there shown, there is in the nature and private
character of the man, a natural love of justice, an impatience at
all undeservedsufiering, an imtpulsive temper, and an intense love
of and thirst for the applause 0 his hearers made him an advocate
of force as a heroic remedy'for the hardship that the poor endure.
In his own private life he was the honest, industrious, and peaceable
laboring man.
In what he said in court before sentence he was respectful and
decorous. His language and conduct since have been irreproach-
able. As there is no evidence that he knew of any preparation to
do the specific act of throwing the bomb that killed Degan, he
does not understand even now that general advice to large masses
to do violence makes him responsible for the violence done by
reason of that advice, nor that being joined by others in an efiort
to subvert law and order by force makes him responsible for the
acts of those others tending to make that effort effectual.
In short, he was more a misguided enthusiast than a criminal,
conscious of ’the horrible nature and effect of his teachings, and of
his responsibility therefor. What shall be done in his case is partly
'a question of humanity and partly a- question of state policy, upon
which it seems to me [action on the part of your excellency favorable
to him is justifiable.
I attach this to a copy of his petition to your excellency, and refer
to that for what he says of the change ‘that has come upon himself.
Respectfully yours, etc.,
JOSEPH E. GARY.
\
546' ' THE ARENA.
The condemnation of Judge Gary lies in the words,
“ There is no evidence that he knew of any preparation to do
the specific act of throwing the bomb that killed Degan.” Did
the judge not know that when he overruled Fielden’s motion
for a new trial, and sentenced him to die ‘upon the scaffold?
Did he just find it out on Nov. 8, '1887? In that letter
Judge Gary justifies and gives emphasis to all the censure
that has been thrown upon him for his conduct at the trial.
Why did he not give to the jury the opinion that he gave to
the governor? That letter leaves nothing on which to base
Fielden’s conviction, except “general advice to large masses
to do violence ”; in other words, what in law is called “se- .
dition.” He was sentenced to death for what the Supreme
Court, in affirming the sentence, called his “queer doctrines.”
Fielden’s exculpation covers all the others. It was a part
of the case, and a very important part of it, that Fielden was
the principal that fateful night, and the others his accom-
plices. He was actually speaking I when the bomb was
thrown; it was affirmed by witnesses that he‘said, “ Kill the
law, stab the law, throttle the law ”; that when the police
appeared he said, “ Here come the bloodhounds, ‘you do your
duty and I will do mine ”; that when the police captain gave
the order to disperse, Fielden gave the signal for throwing
the bomb, “ We are peaceable,” and immediately began firing
his revolver at the police. More than that, it was made the
excuse for the coming of the police, that after the mayor left '
the meeting, Fielden’s talk became so inflammatory and
dangerous that they were compelled to interfere. It was
pretended that “peaceable ” was equivalent to the German
word “ Rake," and that “ Rake ” was a call to arms.
That the excuse and the testimony were false is the tragic '
part of- it. They were urged upon the jury as true by the
prosecuting attorney, the jury accepted them as true, Judge
Gary himself reasserted the truth of them when he overruled
the motion for a new trial, and the Supreme‘ Court in sus-
taining the judgment adopted the mistake. With deadly
precision the Supreme Court proclaimed that there was evi—
dence to show that Fielden had knowledge of the preparation
to do the specific act of throwing the bomb; but Judge Gary,
contradicting the Supreme Court, assured the governor that
there was no such evidence.
- The sophistry that convicted Spies and Parsons as Fielden’s

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JUDGE GARY AND THE ANARoHIs'rs. 547
accomplices was concealed in some changeable and contra-
dictory conspiracies that were invented by the prosecution
and adopted by the judge; then whatever was said or done
by the mythical conspirators was metaphysically said and
done by all the others, and as Fielden had given the signal
to throw the - bomb and had fired upon the police, therefore
Spies and Parsons were- psychologically accessories before
the fact. In that way false testimony against Fielden was
spun into threads by the law spiders, and woven by Judge
Gary into a rope for Spies, Engel, Fischer, and Parsons.
Judge Gary with pen and picture puts the jury on parade,
and while he metaphorically marches it along to slow music,
perhaps it would be well to examine it,‘ “ranging in age
.from fifty-three years down to early manhood.” It was a
jury packed by the prosecution, and the selection of it was in
the hands of a mere bailiff dependent for his office on the
whim of the sheriff. Three fourths of it were dependents
on the ‘f classes ” who were clamoring for the hanging of the
anarchists, “ law or no law”; two of the jurors were in
business for themselves, and one was a school teacher; the
other nine were clerks and salesmen, two of them in the
employ of the Northwestern Railroad Company. This may
have been'very innocent and fair, but wealthy and powerful
as that corporation is, it was‘ hardly entitled to so large a
representation on the jury. The classes to which the
prisoners belonged were excluded from the jury altogether.
In that rendition scene so melodramatically portrayed,
there was one incident which Judge Gary has left out of his
pictures, but which history will preserve. So long as the
record of the trial shall stand, men will read with a shudder
_ that the judge thanked the jury for a verdict that condemned,
seven of their fellow citizens to death, and told the jurymen
that they ought to have a private pecuniary reward. Here
is what he said: “ It does not become me to say anything in
regard to the case that you have tried, or the verdict you
have rendered, but men compulsorily serving as jurors as you
have done deserve some recognition of the service you have
performed besides the meagre compensation you are to
receive.” That hint was eagerly seized by the press, and
immediately the papers were eloquent with calls for a fund
amounting to one hundred thousand dollars to be given to
the jury for their verdict. Probably nothing ever came of
548 '\ THE ARENA.
that; but the covert call of Judge Gary, made at the‘ most
pathetic moment of the trial, put the tragedy on a money
basis, and lowered the dignity of the judge and the jury too.
While the wives and children of the condemned men were
shrieking and fainting because of the barbarity of the
sentence, Judge Gary, cold and calculating, was telling the
jury that they ought to have a reward besides the “ meagre
compensation ” provided by the law.
Moreover, the jury was illegal because men were placed
upon it who declared themselves prejudiced against the
defendants, but who were led by Judge Gary to say that
they could try the'case fairly outside their prejudices. Judge
Gary held that the promise cured the prejudice, a doctrine
that practically took away from the defendants their chal-
lenges for cause. That ruling the Supreme Court sustained,
because it was necessaryto sustain anything to hang the
anarchists. After the anarchists were put to death there
was no longer any reason to preserve the innovation, and so
the Supreme Court reversed it in the Cronin case. If the
jury in the Cronin case was illegal, so was the jury in the
anarchist case.
As soon as the anarchists were in their graves, and the
mad passions of the hour had subsided, the bar awoke from
sycophancy with alarm, perceiving that the law in the
anarchist case was the overthrow of trial by jury in Illinois,
and some of the judges even went so far as to demand its
restoration in the following manifesto :—
The jury system is valuable in so far as it yields impartial juries,
and when it does so it is invaluable; when it fails to do this it is per-
nicious and dangerous. To be impartial the jury should be selected
from all honest walks of life — from the body of the people—and in
such manner as to preclude their being selected or excluded because
of race, color, creed, or political opinions. This can be done by using
a method of selection in accord with existing provisions of the law, .
and'that will prevent any of the public agents charged with the duty
of furnishing jurors for courts from saying beforehand what indi-
viduals are to be placed on or debarred from the jury list.
All citizens possessing the legal qualifications of competent jurors
prescribed by the statute constitute the body of the people from
whichtrial juries should be drawn. The following suggestions show
how this can be done, and done in such a way that impartiality and
honesty can be secured. Taking the precincts one by one, write the
names and residences of all the voters of a precinct on separate cards
and place these in a box, and, in the presence of a committee from
the county board and the county clerk, let there be drawn from the

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JUDGE GARY AND THE ANARCHISTS. , 549
box, after the cards bearing the names have been well shaken up, a
number of the names equal to one tenth of the whole number in the
box. The cards‘bearing the names and residences of the one tenth
of the whole body of the citizens thus selected from each and every
precinct in the county to constitute the jury list, all to be placed in a
large box, to be known as the jury-box, to be provided for that pur-
pose, the same to be then thoroughly shaken, such a box to be in the
custody of the county clerk; Thereafter the clerks of the various
courts, as jurors are needed for the term or on special venire (if the
court directs), are to proceed to the county clerk’s office and draw at
random, a suflicient number of names from said box, as provided by
section 8 of the statute on jurors. - - .
When the jurors appear in court the judge is to examine all under
oath, both as to qualifications and to pass upon excuses, and to dis-
miss all who do not appear to have the necessary qualifications and
all who do not appear to have reasonable and proper excuses. The
bailifl in each court is to be furnished with a small box in which the -
cards bearing the names of the panel of jurors are to be placed and
the jury to be called by drawing these cards one by one at random
from this box. In this way, and in this way only, can juries be
secured in accordance with the provisions of the jury system. This ‘
- jury list, thus selected, will be sufficient for about two years or more.
We submit this plan to the honorable board of county commis-
sioners, with our approval, satisfied that it is feasible and fair. The
idea of selecting at random from all the names furnished by the court
commissioners is in force in the United States courts in this district,
and gives satisfaction. All who are exempt and disqualified by
statute to be stricken from the list.
We approve the foregoing: RICHARD PRENDERGAST,
RICHARD S. TUTHILL,
JOHN P. ALTGELD,
' ROLLIN S. WILLIAMSON,
FRANK BAKER. ‘
The men who signed that call for the restoration of trial
by jury, were all of them, at the time of signing it, judges
in Chicago, and one of them is now governor of Illinois.
Judicial courtesy would‘ not allow them to refer specifically
to Judge Gary’s rulings, but it is a solemn coincidence that
every one of the wrongs they condemn in that memorial was
practised at .the trial of the anarchists with the deliberate
sanction of Judge Gary. The jury was packed ‘by the
prosecution ; it was not “impartial ”; it was not “ from the
body of the people ”; it was not “ drawn from the box ”.;
it was not “ drawn at random ”; it was not drawn at all.
The charge that at the trial Judge Gary was partial, is
proved by his article in the Century Zllaqazz'ne. He is not
impartial now, though the anarchists are dead. He is trying
them still. He assails with undignified. invective their
550 THE ARENA.
names, character, and qualities, their supposed aims, and
their-doctrines, imaginaryand real. If he can show such
prejudice now, with a pen in his hand, and in the quietude
of his own study, what must have been his antipathy to the
prisoners at the time of their trial, when the very atmosphere
of the court house and of the city outside was charged full
with revengeful electricity, and when every ruling adverse to
the prisoners was hailed with “ a roar of almost'universal
approval.”
That column or so of scolding at the labor demagogues
who lead the working men astray is well enough in its way,
but hardly to the point. So also it is interesting to know
that Judge Gary spent the summer of 1840‘ working at a
carpenter’s bench and singing songs, but that also is outside
the argument, for the questions at issue are these,'Were the
so-called anarchists guilty of the murder? and Did they get
a fair trial, according to the law of the land?
Judge Gary assumes the affirmative of both propositions,
but confines himself chiefly to Spies and Parsons, because,
says Judge Gary, “ To show how each was guilty would
require more space than could be given to a- magazine
article.” Before he came to that apology Judge Gary had
already exhausted thirteen columns of the magazine in
pictorial and sensational description of scenes and incidents;
therefore his excuse’ cannot be accepted. He confines him-
self to Spies and Parsons because these were the publishers
of the Arbeiter Zeit'wng and the Alarm, and this bit‘of good
, luck enables Judge Gary to evade his own proposition “ to
demonstrate to all fair-minded, intelligent people, that the
anarchists were guilty of murder.” Instead of doing that
he actually pads his article with more than twenty columns
of selected extracts from the Arbeiter Zeitung and the Alarm,
although he gives no proof whatever that any of the defend-
ants except Spies and Parsons ever saw a word of them.
That course of action was prudent if not brave, because
thereby Judge Gary approaches the reader on the sentimental
side. He appeals to passion, for it is not easy to read with
patience the lurid rant and sulphurous threatenings of the
Alarm and the Arbeiter. They were the delirious ravings
of agitators intoxicated by enthusiasm for a new order of
society, and there was no connection whatever between them
andfthebolnb throwing in the Haymarket.
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JUDGE GARY AND THE ANARCHISTS. 551
Themurder of Abraham Lincoln aroused the revengeful
feelings of the people, but nobody ever thought of hanging
the editors who for years had been invoking “ the dagger of
Brutus,” and advising the assassination of the president.
It is true that Governor Wise pretended that Horace Greeley
was criminally liable and guilty of murder because his
editorial writings in the New York Tribune had caused the
John Brown'raid; but the claim was not seriously pressed,
although there was talk at the time about an extradition
process by which Mr. Greeley was to be surrendered and
given over to Virginia for .trial. The selections from the
Alarm and the Arbez'ter serve Judge Gary’s purposes; they
excite sympathy for the Gary side, and they inflame the
reader’s prejudice against the anarchists. ,’ '
The narrative part of the article is not to be relied on,
because it is the prosecutor’s version of what occurred, and
the side of the anarchists is carefully suppressed. Much of
the story is yet in controversy, and'some of it has been con-
vincingly disproved. Here is a specimen of the'careless
manner in which Judge Gary testifies. Speaking of the
memorable Haymarket meeting, he says, “The language of
the speakers was of a very violent character”; but the mayor
of the city, who was present at the meeting until very near
its close, and who heard all the speakers, says that the
speeches were not violent, and that he went to the police
inspector and told him to dismiss his men, because it was a
quiet meeting, and there was no necessity for the police.
The truth is the police were bent on making a'riot, and as
soon as the mayor went away they marched up to the meet-
ing. After the catastrophe it became necessary to excuse
their illegal action, and so they invented a story to the effect
that although the meeting was quiet and orderly while the
mayor was present, yet that as soon as he went away, the
speech of Fielden became violent and inflammatory, making
it the duty of the police to disperse the crowd. This was an
after-thought; nobody believes it now, and Judge Gary him-
self could not have believed it when he wrote that letter to
the governor.
The partial character of J udge' Gary’s testimony further
appears in his manner of summing up the case against Neebe.
Having promised to show that the accused anarchists were
guilty of‘ murder, he convicts N eebe in the following easy
552 THE ARENA.
way: “Neebe was a stockholder in the Arbeiter, and took
charge of the property on May 5, 1886, after Spies and
Schwab were arrested. He distributed some of the ‘Re-
' venge’ circulars. All of the defendants were members of
groups of the Internationals.” That is all; and yet limp
and rickety as it is, the hidden truth of it makes it weaker
still, for Judge Gary knows very well that N eebe was no
more a “stockholder” in the Arbeiter than was any other
member of the Socialistic Publishing Company. He had five
dollars’ worth of interest in it, and yet this paltry contribu-
tion enables Judge Gary to pamper Mr. Neebe into the
important rank of a “ stockholder.” And this is a fair speci-
men of the- manner in which the prosecution inflated all the
testimony given at the trial.
The rest of Judge Gary’s testimony against Neebe is dis-
torted in the same way; for instance, “ He took charge of the
property,” as if N eebe had an owner’s authority at the office
of the Arbeiter, when the truth was that N eebe was merely
there as an inquirer after news along with a crowd of others,
and when a policeman said, “Who’s in charge here?” N eebe
answered, “ Well, I suppose I am, in the absence of Spies
and Schwab,” meaning that he would see that the property
should not be stolen or destroyed. -
All the testimony brought against N eebe would not justify
his imprisonment for one day, and had the bomb broken a
window merely, instead of killing a man, and had Neebe
been sued for damages on account of the broken window,
Judge Gary would' have held that N eebe’s connection with
' the bomb throwing was too uncertain and remote to make
him liable in damages to the value of a pane of glass; yet on
that flimsy testimony the jury found Neebe guilty of murder,
and that irrational and revengeful verdict Judge Gary
solemnly sustained. Of what value, then, are his opinions as
to the guilt of the others, or as to anything connected with
the anarchists and their trial?
Even less testimony than was produced against N eebe
would have been sufficient for Judge Gary. N eebe belonged
to the Internationals, and that was enough to make him
guilty of the murder of Matthias Degan. That reactionary
doctrine carries us backward several hundred years. It is
too imperialistic now even for the old monarchies. It would
be held barbarous to-day in Russia, Austria, Italy, or Spain;
JUDGE GARY AND THE ANARCHISTS. ' 553
and yet Judge Gary has the temerity to say, “The mere
fact that the defendants were members of the Internationals,
more or less active in the organization, even though their
action was confined to meetings of the groups, made them
co-conspirators with the more active members who worked
publicly.” This grotesque and sanguinary jurisprudence
may be good enough for anarchists, but it is not law.
With amazing hardihood Judge Gary, in defiance of the
record, says, “ The anarchists were not tried for being anar-
chists, but for procuring murder to be done, and being there-
fore themselves guilty of murder.” Surely he remembers
the frenzy of the time and the roar of a mad people demand-
ing that the prisoners be hanged for anarchy. He himself
says that the verdict was received with “ a roar of almost
universal approva .” Murder was the technical crime
charged, but the case put before the jury was “ Anarchy.”
The press, drunk with passion, would not agree to anything
else, and so thoroughly was the public mind saturated with
that view of it, that the Chicago Tribune, in its New Year’s
'- day edition for 1888, recording the executions for 1887, the
names of the condemned in one column, and their crimes,
murder, arson, rape, or whatever it was, in another; when it
came to November 11, mentioning Spies, Engel, Fischer,
and Parsons, the Tribune was very careful to say that they
were hanged for “Anarchy.” Thousands of men in Chicago
believe it to this day. ,
Surely Judge Gary has not forgotten the closing speech of
the prosecuting attorney, the false issue presented by him
to the jury, and his theatrical exclamation, “ Anarchy is on
trial I ” Conscious that the charge of murder had altogether
failed, he changed the issue to “anarchy” and “treason,”
the penalty for which, he said, was death. In vain the
counsel for the defendants appealed against this wrong;
Judge Gary allowed the prosecutor to go on; and to this
day, no doubt, some of the jury believe that the accused
persons were on trial for anarchy and treason, under a
nominal indictment for murder.
So glaring was this at the time that Fielden, when asked
if he had anything to say why sentence of death should not
be pronounced against him, rebuked the prosecuting attorney
and Judge Gary for substituting a false issue at the eleventh
hour. Referring to his indictment for murder he said: --
554 THE ARENA.
I answered that charge in this court. My attorneys in my behalf
met that charge; we brought evidence to meet and rebut the charge
of murder. After all our evidence was put in, after all the speeches
had been made on both sides, with the exception of one (the closing
speech of the state’s attorney), we were suddenly confronted with the
fact that the charge of murder had not been proven. When all the
witnesses had been heard I am suddenlytold that I am being tried
for “ anarchy.” If, I had known that I was being tried for anarchy,
I could have answered that charge.
And so painfully impressed by this view of it were many
members of the bar in Chicago that they openly expressed
their disapprobation. I will merely quote the opinion of
Lyman Trumbull, a very conservative man. Many years
ago he was a judge of the Supreme Court of Illinois; for
eighteen years he was a member of the United States Senate,
' and chairman of the judiciary committee of that body, a man
in active practice now, and easily first among the lawyers of
Illinois. Judge Trumbull said: —
I am not altogether satisfied with the manner in which the trial of
the anarchists was conducted. It took place at a time of great public
excitement, when it was about impossible that they could have a fair
and impartial trial. A terrible crime had been committed which was
attributed to 'the anarchists, and in some respects the trial had the
appearance of a trial of an organization known as anarchists, rather
than of persons indicted for the murder of Degan. Several of the
condemned were not at the meeting where the bomb was thrown,
and none of them, as I understand, was directly connected with the'
throwing.
That is enough, but if anything more is needed, Judge
Gary’s article will supply it. If this was a trial- for murder,
why does he take so much pains to show the 'sanguinary
character of anarchy? Why does he labor to controvert the
real and imaginary doctrines of the accused men? Why
does he devote nine tenths of his article to abstract anarchy,
and only about one tenth of it to that promised evidence of
murder? The truth is that he tried Spies and the rest of
them for anarchy in 1886, and he is trying them for anarchy
now.
The abstract law of conspiracy quoted by Judge Gary
from the statutes and the text-books is trite enough, but it
has no application to the facts in the anarchist case, and
when Judge Gary, an old carpenter, makes a specific and
definite attempt todovetail them together, he falls into laby-
T
JUDGE GARY AND THE ANARCHISTS. 555
rinthine mental confusion, as in- the attempt ‘to fit the case of
Brennan vs. The People (15 Illinois Reports, 511) to the case
of the anarchists. In the Brennan case the court said:—
There is a fatal objection to the eighteenth, twenty-first, and
twenty-second instructions asked by the prisoners. These instruc-
tions require the jury to acquit the prisoners, unless they actually
participated in the killing of Story, or unless the killing happened in
. pursuance of a common design to take his life. Such is not the law.
The prisoners may be guilty of murder, although they neither took
part in the killing, nor assented to an arrangement having for its
object the death of Story. It is suflic ent that they combined with
those committing the deed to do an unlawful act, and if death hap—
pens in the prosecution of the common object, all are alike guilty of
the homicide. The act'of one of them done in furtherance of the
original design is, in consideration of law, the act of all, and he who
advises or encourages another to do an illegal act is responsible for
all the natural and probable consequences that may arise from its
perpetration. - ‘ ~ '
Very well, but suppose that Brennan .and his party,
having combined to beat'or rob Story, some unknown person
, should beat or rob somebody else, would Brennan be guilty
of that? Certainly not, and yet this would be a true '
parallel to the anarchist case. There was no connection
shown between the defendants and the unknown person who
threw the bomb in the Haymarket, nor between their words
and .his action. Judge Gary’s doctrine is not new. He bor-
rowed it from those defenders of “social, order” who pro-
claimed in 1859 that Horace Greeley, Frederick Douglass,
Gerritt Smith, Wendell Phillips, and William Lloyd Garri-
son were engaged in a conspiracy to subvert the constitution
by the overthrow of slavery, and that in pursuance of that
conspiracy~ John Brown made a revolutionary attack on
Harper’s Ferry, and that as Horace Greeley and the others
had assailed the Constitution and given general advice to
overthrow slavery, they were “ co-conspirators ” with Brown.
Let us take another illustration. For some time‘ past
popular stump .orators and social agitators have advised, in a
general way,.the spoiling of trusts by the confiscation and
larceny of their property. Would Judge Gary hold them
guilty of larceny if some unknown person should steal coal
from the coal combine, or oil from the Standard Oil Com-
pany, or sugar from Havemeyer, or any other property
belonging to those powerful corporations? Probably not,
-and yet this is the doctrine he maintained in a graver case
556 THE ARENA.
than larceny, in a case involving the tremendous issues of
life and death.
Lord Coke said, “ The Common Law is the perfection of
reason.” Judge Gary does not approve the definition. He
calls it “a stilted phrase,” and so he substitutes a stunted
phrase in place of it, “ And the law is common sense”-
This musty and mischievous old maxim has been chimney-
corner law for ages, and Judge Gary fondles it as an original
discovery of his own. He quotes it again and again, he uses
it as the motto for his article, and he bestows it upon us in a
patronizing way as if it were a fatherly benediction. The
sentiment is utterly lawless and abandoned; it is the very
anarchy of jurisprudence. The term “common sense ” has
no definite meaning, and the law has never permitted the
life, liberty, and property of the citizen to depend upon it.
The phrase is often used for the commonest nonsense, and
for the display of conceited egotism.. Whenever it is used
by a judge, suspicion always attaches to it as an apology for
setting aside the law, and substituting for it the “ common
sense ” of [the judge. '
In judicial proceedings the phrase is dangerous as dyna-
mite, because nobody knows what common sense is. For
ages it has been the object of statutes, charters, and consti-
tutions to protect the people against the capricious “common
sense” of the judges and the courts. Every lawyer knows
that “ certainty,” so far as it is possible for human wisdom to
express ‘it, is one of the essential qualities of law. This is
necessary, in order that all men may understand it, but no
man can tell what is, or what may be, the “ common sense ”
of a judge. It is because the “ common sense” of the judges
is not certain that the constitution and laws of Illinoiscom-
mand that every man accused of crime shall have a fair and
impartial trial by an unprejudiced jury of his peers, and no
‘judge has any right. to abolish this protection and say that
his own “ common sense ” is better than the constitution and
the law.
Even the “ common sense ” of Judge Gary changes with
his moods. In 1886 his “ common sense ” told him' that
Fielden was guilty and ought to be hanged, and in 1886 he
fully intended to hang him. Having overruled the motion
for a new trial, he proceeded to pass sentence of death upon
Fielden and the others, and said: “ You are all men of
- JUDGE GARY AND THE AnARemsrs. 557'
intelligence, and know that if the verdict stands it must be
executed. The reasons why it shall stand I have already
stated in deciding the motion for a new trial.” In 1887 his
“ common sense” told him that as to Fielden the verdict
ought not to stand, and that it ought not to be executed.
_He appealed from his own decision to_ the governor of
Illinois, and pleaded for a commutation of the sentence,
partly for sentimental reasons but principally on legal
grounds. If Judge Gary believed that the governor‘ was not
a judicial magistrate, with authority to review and reverse
the decisions of the courts in criminal cases, why did the
judge tell the governor that the verdict against Fielden was
not supported by the evidence‘? Every position taken by
Judge Gary in the Century Magazine is contradicted and
condemned by his own letter to Governor Oglesby.
Judge Gary quotes prophecy, and indulges a little in
prophecy himself, as Fielden did at the time Judge Gary sen-
tenced him to death. Addressing the judge, the prisoner
said, “ We have been tried by a jury that has‘ found us
guilty; you will be tried by a jury now that will find you
guilty.” Before this generation passes away that prophecy
will be‘ fulfilled. The judgment in the anarchist case will
, be reversed as triumphantly as the judgment against Alice -
Lisle was reversed in the next generation. And, by the
way, Judge Gary tells us in the Century Magazine that the
anarchist case is without a precedent; but this is a mistake,
for it has a glaring precedent in the case of Alice Lisle.
She had given shelter and food to one of the prominent
leaders of the Western revolt, and the “common sense” of
Judge Jeffreys led him to decide that by giving such aid
and comfort she became a “co-conspirator,” and was there-
fore guilty with all the rest. He therefore condemned her
to death, a barbarous judgment that was barbarously exe-
cuted, a sentence that will give Lord Chief Justice J effireys
a conspicuous place on the roll of infamous judges for all
time.
Some rewards are harder to bear than punishments.
Judge ‘Gary testifies to that. He has been praised and
rewarded because of a popular belief that he would not
allow such trifles as the constitution and the law to stand
between the people and revenge. In some agony of spirit
he says: — '
‘558 - m ARENA.
Mixed with all the approval of .my own part in the conviction of
the anarchists that has come to my eyes and ears, the amount of
which is beyond my summing up, there has been an undertone like
a minor strain in music, that the anarchists deserved their fate; that
society has the right to enforce the first law of nature, self-preser~
vation; and therefore if I had a little strained the law, or admin-
istered it with great rigor against them, I was to be commended for
my courage in so doing. I protest against any such commendation,
and deny utterly that I have done anything that should subject me
to it. .
When a'judicial magistrate bends to power, and yields to
the irrational clamor of the mad majority inside the court
house or outside of it, and gets a “ roar of almost universal
approval” for doing so, men do not glorify his action by
such a word as “ courage,” but they describe it in words that
mean the opposite of that. Seven years of such praise as
Judge Gary has endured is torture enough, and even a
“minor strain in music” becomes painful when played for
seven years; therefore he doesnot ‘wish to be commended
any longer because he “strained the law.” He repudiates
the commendation thus: —
If, therefore, I have strained the law-gone beyond its intent
and meaning —- I am not to be commended but blamed for doing so.
The end, however desirable its attainment, excuses no irregular
means in the administration of justice.
In saying “ If I had a little strained the law,” Judge Gary
is too modest altogether. He strained it until it broke.
For some of his harsh rulings at the trial he ofiers no justifi-
cation or excuse, although they ‘have been criticised for
nearly seven years. He compelled eight men,'in peril of
their lives, to be tried in a batch together, and he denied
them the right to be separately tried. ‘By this device each
man was weighted down with all ‘the testimony given against
all the others, and his right of challenge was grievously im-
paired. That right is individual and personal, and a man on
trial for his life ought not to be compelled against his will
to mix his own challenges with those of other men. Where
eight men are jointly arraigned, some of them may desire‘to
challenge a juror whom the others wish to retain, but by
Judge Ga'ry’s rulings they were compelled to unite in their
challenges or forfeit them altogether. The law of Illinois
gives the defendant in a capital case twenty challenges, but
Judge Gary ‘limited the eight defendants in the anarchist
mam GARY AND THE ANARcmscrs. 559
case to a joint interest. in a hundred and sixty challenges,
which is a privilege much inferior to the other. He also
allowed the state’s attorney to multiply his twenty challenges
by eight, so that the prosecutor had one hundred and sixty
separate challenges, while the eight defendants were allowed
only the same number, and these they were compelled to use
jointly or not at all.
In the way of oblique excuse, Judge Gary pleads that ‘-
“ This case is without precedent.” He says, “There is no
example in the law books of a case of this sort.” This is a
-mistake, except in the purely physical sense that no two
men are exactly alike. Cases containing the same legal and
moral elements that were involved in the anarchist case, are
multitudinous in the books. Take, for instance, the case of
Thistlewood and his gang, tried for treason in 1820. This
has a strong' resemblance to the anarchist case, excepting
that, unlike the anarchists, Thistlewood and his party actu-
ally committed the deed for which they were condemned. _
They organized a conspiracy to overthrow the government,
‘ and were to begin the reign of terror by murdering all the
ministers of the crown at a cabinet dinner given by Lord
Harrowby in Grosvenor Square. On the day of the dinner,
the conspirators assembled in the loft of a neighboring stable,
and after arming themselves with knives, daggers, and
pistols, they were about to start on their sanguinary expedi-
tion when the police appeared and ordered them to surrender.
They opened fire upon the police, killing some and wound-
ing others, but in the end were overpowered. In the midst '
of intense public excitement, Thistlewood and fifteen others
were jointly indicted for their crime, and being arraigned,
they said they wished to sever in their challenges, where-
upon they were granted separate trials as a matter of absolute
,right. The case of Frost, Williams, and Jones, tried .at
Monmouth in'1840, is a similar instance; the case ofAshton,
Elliott, and Lord Viscount Preston, tried before Lord Holt,
in the reign of William III., is another, and these can be
multiplied by hundreds. If Judge Gary meant to declare it
“without precedent” that eight men jointly indicted for a
capital crime were denied the right to sever in their chal-
lenges and to be separately tried, he is probably correct. It
is very likely that “ There is no example in the law books
of a case of this sort.” .
560 THE ARENA.
“ I suppose,” remarks Judge Gary, “ that in the Lord
George Gordon riots we may, perhaps, find something like
this; but Lord George Gordon was indicted for treason, and
the government failed in its proofs upon the trial as to what
he had done.
very strongly against him.” The comparison between the
anarchist case is unfortunate for Judge Gary, and he falls
into error in supposing that the government did not wish to
convict Gordon. ' He was the very man the government was
after, for his pernicious activity was troublesome. He was a
‘ fanatical enthusiast of high rank, a member of Parliament, a
magnetic demagogue of dangerous oratdrical ability, and the
inspiration of the riots. The government was anxious to
exterminate Gordon, and would have done it if the judges
had not given him a fair trial.
Also it is a mistake to say that the government failed in
its proofs of what he had done. They proved that for
months he had been stimulating a “ N o Popery” rebellion
by speeches of the most- fiery and violent character; that on
the very day the riots began he had addressed an excited
multitude of sixty thousand people, protesting that there
would be “ no help until all the popish chapels were des-
troyed ”; that the mob then retired, and at night began the
work of burning the chapels and many private residences.
They burned the house of Lord Chief Justice Mansfield and
everything it contained, including his priceless library. For
four days they had London in a state of terror. Scores of
houses were burned, many lives were sacrificed, and much
pillage was done. There was no deficiency of proof, but the
government failed because the prosecution could not show
any legal or logical connection between the words of Gordon
and the deeds of the mob. In the language of Judge Gary,
“ There was no evidence that he knew of any preparation to
do the specific. acts ” of treason, arson, and murder. Lord
George Gordon was acquitted because no traitorous or
malicious intent was shown, nor any intent to produce the
riots that came out of the “ No Popery ” agitation.
A word or two about that picture of “ The Monument
to the Martyred Police ” and its forged and counterfeit
epigraph. The figure is a policeman with uplifted hand, and
the command he gave, according to the motto chiselled on the
pedestal, was this, “ In the name of the people of Illinois I
Very likely they did not want to prove it,
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JUDGE GARY AND THE ANARCHISTS. 561
command peace.” Judge Gary knows that nothing of the
kind was uttered. Here is what the policeman said, “ In
the name of the people of Illinois I command this meeting
to disperse.” Judge Gary himself confesses that, but he
does not say why the falsification on the monument was
made. The command actually given by the police captain
was in violation of the Constitution of the United States
and the laws of Illinois, as the monument committee very
Well knew, and so they changed it into a gentle appeal for
peace. And every day and every hour that bronze police-
man with uplifted hand repeats the false quotation to every
man and woman and child that passes by. There is a
parallel to it in‘ the old monument that rears its head
a hundred and fifty feet into the air on Fish Street Hill,
and commemorates the great fire of London. For years it
bore an inscription saying that London was burned by
the Roman Catholics, a falsehood of which the city became
ashamed at last, and therefore cut it out of the stone.
Pope refers to it thus: —
Where London’s column, pointing to the skies,
Like a tall bully lifts its head and lies.
The police monument gives false testimony. Carved on
the face of it is a forgery of the record, a perversion of the
truth; and so long as it stands in the Haymarket, it will
remain a brazen symbol of the trial.‘ Ere long, all the
citizens of Chicago will point at it with derision, and say: —
There Bonfield’s column, pointing to the skies,
Like a tall bully lifts its head, and — lies.
RICHARD ANTHONY PROGTOR, ASTRONOMER.
BY REV. HO\VARD MACQUEARY.

N o writer of this generation has done more to interest
people in the high science of astronomy than the man whose
name appears at the head of this‘ article. Both by original
investigation and by numerous popular treatises on the sub-
ject, Professor Proctor strove to promote a knowledge of
astronomy. Yet his body has lain in a neglected grave in
Greenwood Cemetery, New York, since his death from
yellow fever, Sept. 12', 1888. His children have earnestly
‘desired to properly honor their father by removing his
remains to 'a lot‘of their own and erecting a suitable monu-
ment to his memory, but they have not been able to do so,
having to earn their own living. Recently Miss Mary
Proctor, Professor Proctor’s eldest daughter, who now re-
sides in St. Joseph, Mo., and several of her father’s friends
and admirers, began a movement by which they hoped to
raise the funds necessary to the purchase of a lot and monu-
, ment for the aforesaid purpose. They were successful
beyond anticipation, for that well-known philanthropist and '
patron of all that is high and noble, Mr. George -\/V. Childs
of Philadelphia, when the project became known to him,
generously offered to assume the entire expense of the, re-
interment of Professor Proctor’s remains; and so, at last,
this servant of science will receive the honor due him. It is
specially appropriate, therefore, to review at this time the
life and work of Richard A. Proctorl
He was born in Cheyne Row, Chelsea, London, on March
23, 1837. He was the youngest of four children, two sons
and two daughters, and was rather a delicate child. His
mother seems to have been a clever woman. She kept him
_ at home as long as possible attending to his education. His
boyish contemporaries remember him as a great reader,
devouring books of a more advanced type than boys usually '
care for, His father, who was a solicitor with literary tastes,
died when his little son was thirteen years old.
562