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AN OPEN LETTER.
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JUDGE ‘JOSEPH E. GARY, \
“7210, in 1893 seeks tbjjl‘l'stit‘y his participation (in 1887) in the lynching, under
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Y A?‘ ‘.1
WHY THE UNDERTONE?

T 0 faseplz E. Gary, judge; and ant/tor
of an artz'ele published in T he Century
Magazine, far A pm], 1893, entitled
“T he C/zz'eago A nare/zz'sts of 1886,-
the Crime, the T rz'at and the Punz‘s/z-
nzent.”
SIR: In your Century article you say:
“ I expect, if my article receives any at-
tention from anarchists or their sympa-
thizers, that it will be garbled, and that I
shall be misrepresented.” (Your Century
article, page 836.)
You intimate that your critics can
only be anarchists or their sympa-
thizers. You are mistaken. Among
your severest accusers are men of your
own order—men who love the law,
and would wish to purge it of the
degradations to which it has been sub-
jected.
But_why should any one want to
garble your article or misrepresent
you? What need?
Why was the article written? You
have told us your principal motive-
or what you claim to have been your
principal motive. What other motives
had you, of which you fail to make
mention in the pages of The Century?
Would you have written it had not
the people of Illinois elected a Demo-
cratic governor?
Were you not fearful that a new
administration might overhaul some
of the incidents connected with that
trial? And was not one of the chief
purposes of your article to incite a
new dynamite scare? And did you
not intend this reagitation 'of the dyna-
I
mite furore to beset the new governor,
as a challenge to him to review your
acts in connection with that trial?
Is it not true that you had not con-
templated such an article until elec-
tion day, and that you commenced
work upon it the day you knew that
Judge Altgeld had become Governor
Altgeld?
“ﬁn Undertone Like a Minor Strain in Music.”
“ 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 inforce the ﬁrst law of nature—-
self-preservation; and therefore if I had
a little strained the law, or administered
it with great rigor against them, I was to
be commended for my so doing.” (Your
Century Article, page 809.)
How do you account for it, Judge
Gary, that an “ undertone, like a minor
strain in music” underlies and mixes
with ALL the vast mass of approval
that was showered upon you? Would
it not have been of interest to your
readers to have quoted some few scraps
of approval unmixed with such an
undertone? It is true that you did
have, from the Supreme Court, some
show of approval, but even that was
largely mixed with undertone, as every
lawyer knows, and is it not true that
such approval as you had from that
august tribunal had later to be bol-
stered up by an ex post faeto law cal-
culated to “make the punishment ﬁt
the crime?” And is it not further true
that a later decision of that court
_..._-i_4_....m
withdrew a great part of its approval?
Can you not understand that the
undertone, translated into language
which plain people can comprehend,
Iapproving of your part in the tragedy
on “general principles” yet realizes
1that the trial was a delusion and a
snare—unfair, illegal and unjust?
Could you expect unmixed approval
in the face of a strong conviction,
amounting to positive knowledge, in
many instances, that you had not “a
little strained the law,” but that you
had strained it to the very breaking
point?
“The verdict was received by the friends
of social order, wherever lightning could
carry it, with a roar of almost universal
approval. And yet there is ground for
the charge made by those who deny that
justice was done to Spies and his compan-
ions—and who claim them as martyrs for
free speech—that approval was based
upon no intelligent understanding of the
conduct of the convicted anarchists—no
deﬁnite knowledge of what acts, if any,
they had done, worthy of deathr—but was
the outcome of fear that anarchy and an-
archists threatended the foundations of
society; and from this fear sprung ap-
proval of anything which tended to the
extirpation of anarchists.” (Your Century
article, page 807.)
Now candidly, Judge Gary, were
you not yourself overcome by fear
throughout the whole of the trial?
And did not your personal fright tinge
your every act and word during the
trial? Did not the new and cheap
weapon, dynamite, inspire you with a
dread that made itself manifest in
your every thought and movement?
Was it not your own inextinguishable
desire to extirpate the anarchists at
any cost, and by any strain the forms
of law could stand? And is it any
wonder that you should ﬁnd this keen
zeal echoed in the universal roar of
approval, in which you ﬁnd so much
of comfort despite its admixture with
the undertone that charges you with
having been an unjust judge?
Are you at a loss to understand this
strain of condemnation mingled with
so much approbation?
Is not your whole conduct in the
trial a justification of the undertone?
Did you not yourself evoke it by al-
lowing your personal prejudices to
sway you?
Can you honestly declare that you
did not let your own animus drop into
the scale against the accused?
If you could have defended your
rulings in the construction of the jury
would you have evaded that issue in
your magazine defence?
Do you not understand that the
undertone accuses you of having been
more of prosecutor than of judge in
that trial? '
“ ﬁnd the Law is Gommoil Sense."
“The common law,” said Lord Coke,
“is the perfection of reason.” In less
stilted phrase, and, as I think, in words
more signiﬁcant to plain people, I have
said “and the law is common sense.”
(Your Century article, page 812.)
Are you trying to shirk the issue?
Can you not understand that it is not
the law which is on trial, but you,
joseph E. Gary, and that you are
charged, not with administering the
law, but with perverting it, misinter-
preting it, and with gross maladmin-
istration and distortion of it?
I am not a lawyer, but one of the
plain people. But it requires no law-
yer to see through your trick of build-
ing a hedge about the law, and taking
refuge within it yourself.’ The artiﬁce
of the thief who cries “stop thief!” in
order to throw the pursuers off the
scent is ﬁne diplomacy alongside this
ﬂimsy subterfuge. The law is not on
trial, nor are you on trial for adminis—

‘te'ring ‘it. ‘It is ‘because 'you have
failed, signally and everywhere, to ﬁt
the facts to the law that you are now
on trial, and your defence is weak.
If your own fear-distraught asser-
tions could be admitted as evidence
your case might have been made out.
But the law—which is common sense
——prescribes the modes of taking evi-
dence in criminal cases, and the hys-
terical fears and surmises of a fright-
ened judge will not ﬁt to the require-
ments of the law. Yet you made
these serve. Therefore the undertone.
Your Whole article resembles the
performance of the hiding ostrich.
Do you think, because you hide the
facts connected with the trial that they
are hidden from the sight of all the
world?
Do you imagine that because you
evade all mention of your now notor—
ious rulings, that these can be thus
easily blotted out?
“And the law is common sense,”
but I defy you, or any sane man, to
ﬁnd any common sense in the follow-
ing:
“Of course the more a man feels that
he is handicapped, the more he will be
guarded against it.”
Do you recognize the words? Why
did you not quote them for your Cen-
tury readers? Why did you not tell
them that this famous gem of common
sense was from your choice collection
of wisdom, as enunciated at the an-
archist trial? Why did you not give
this specimen of the perfection _of
reason and state that thus you ruled,
in the case of a juror whom you pro-
nounced competent after he had told
you that he was biased; that his opin-
ion would handicap his judgment;
that he was prejudiced against the de-
fendants; that if the testimony were
1
equally balanced he would hold 'to his
prejudices? Why is it that nowhere
in your article have you referred to
the construction of the jury—the mode
of its empaneling, and the character
of its composition? Yet the under-
tone knows that it was an illegal jury,
unconstitutionally got together, and
that the more prejudiced and handi-
capped the talesman was the more
you sought to coach him to a point
where you might be warranted in ac-
cepting him. Never .before nor since,
in all Christendom, was there such
a ruling—such a handicapping of all
common sense. .
Trial at Wholesale.
Can you wonder at an undertone
which proclaims you an unjust judge
in View of your rulings against a sev-
erence, as properly applied for?
Would you to-day, ]oseph E. Gary,
contend that it is the perfection of
reason to try eight men together for
murder? Be your answer what it may, I
I tell you that such another undertak-
ing will never again be tolerated by
the public sentiment of Illinois. The
undertone you hear—that mixes with
all the approval which you so prize—
is a protest against that terrible form
of injustice. Itlwould not have been
tolerated then, had it not been a per-
iod of great public excitement, during
which the roar of the mob overbore
the undertone of the judicious.
General M. M. Trumbull, in his
“Trial of the judgment,” says:
“To imperil an innocent man by com-
pelling him to join his defence with that
of men who may be guilty, is a wrong not
only against him, but against the just and
humane spirit of the law itself. It shocks
the moral sense, and wherever it is done
or attempted, a cloud of suspicion settles
down upon the trial.”
How are your Century readers to
'the selection of the jury?
—6_...-
judge of your conduct in this case,
since you hide from them your con-
duct with respect of your refusal to
grant a severance.
The undertone accuses you of hav-
ing shown by your attitude in that
particular a determination to put the
defendants in a position of extraor-
dinary jeopardy. Do you think it a
sufﬁcient answer to ignore so import-
ant a charge?
Trial bu an Impartial Juru.
The constitution of Illinois declares
that “in all‘ criminal prosecutions the
accused shall have the right to a
speedy public trial by an impartial
jury.” Did you not nullify this right?
Dare you assert that the defendants
were tried by an impartial jury?
Why did you omit in your Century
article‘ all reference to the manner of
Why did
you suppress the fact that nine mem-
bers of the jury admitted their preju-
dice? Could a jury so constructed
have been an impartial jury? And‘
could a trial so held have been a fair _
trial?
Why did you not tell your Century
readers of the afﬁdavit of Otis Favor,
who made oath that the special bailiff
of your court had said:
“I am managing this case and I know
what I am about. Those fellows are go-
ing to be hanged as certain as death. I
am calling such men as the defendants
will have to challenge peremptorily and
waste their time and challenges. Then
they will have to take such men as the
prosecution wants.”
Was it not you, Joseph E. Ga'ry,
who told the bailiff what the prosecu-
tion.wanted? If not, who was it?
And knowing that this was said, and
that this was the animus of the bailiff,
I ask you could a trial so conducted
have been a fair trial?
Why do you suppress all mention
of the afﬁdavits regarding jurors, one
of whom had said before the trial,
“every damned one of them ought to
to be hung,” and the other of whom
had declared that “the whole damned
crowd ought to be hung?”
surmise as Evidence.
“What Spies and Parsons published in
the newspapers and shouted in their
speeches is enough for the condemnation
of all their co-conspirators, being pub-
lished and spoken for the purpose of
carrying out the design of the conspiracy
and followed by murder instigated by
such publications and speeches. They
incited, advised, encouraged the throwing
of the bomb that killed the policemen.”
(Your Century article, 1). 812.)
Where is the evidence that these
men encouraged, advised, incited the
throwing of the bomb? Was any such
evidence adduced at the trial? Is it
not true that this is mere surmise-—
unsupported assertion? Or do you
mean to say that you rely upon the
testimony of Gilmer and Thompson
to warrant your assertion? Which
horn of the dilemma will you-take?
Will you admit that you have no evi-
_dence whatever at the back of this
assertion, or will you admit that the
only evidence you can possibly have
is the evidence of men whom you be-
lieve to be perjurers?
Will you not admit that in spite of
all the money spent in trying to get
evidence to support this surmise, that
all that was got for the money was the
testimony of Gilmer and Thompson?
Are you proud of the achievement?
and if not, why do you still make use
of their evidence?
“And the law is common sense.”
And all that a man publishes in a
newspaper is enough for the con-
demnation of a number of other men
for murder, because they belonged to
____.'7.___
the same club with the editor. Is
this the perfection of reason? Can
you blame the poor stone-carter
(Fielden) for wanting the law stabbed
and throttled that is capable of such
perversion as this? Is it law? Was
there ever a law under which men
could be condemned by wholesale for
murder because one man published a
lot of rubbish in a rabid newspaper
which may or may not have proved
the fact of a conspiracy to overturn
the government?
Did not your surmises take the
shape of almost unbearable dread
throughout the trial? Did you not
tremble like an aspen at each un-
wonted noise, and did you not almost
faint with fright when the poor young
wife of Schwab fell screaming into
the arms of the women around her
as the verdict of the jury was an-
nounced?
And will you contend that a mind
so- ﬁlled with apprehension and con-
sternation was capable of that judicial
calm with which your office should be
invested?
Do you not even yet understand
that the undertone accuses you_of
having encompassed the extirpation
of the defendants by making your
surmises serve in the place of evi-
dence, and because you impressed
these bald assertions of yours upon
the jury as though there had been
evidence adduced in support of them?
And do you think it shall be permitted
you to quiet the undertone by the
same methods that aroused it?
The ﬂaumarket Meeting.
“The anarchists called a meeting to de-
nounce the police. It was held near a
police station at which they knew a large
force was concentrated. The situation
was critical. The scent of danger was in
the air. They so. conducted the meeting
as to make it the duty of the police to dis-
perse it. (Your Century article, p. 810.)
Mere assertion, with no evidence
whatever to justify it. The scent of
danger was not in the air. The con-
duct of the meeting was not such as
to make it the duty of the police to
disperse it.
What do you mean to imply by
saying that the meeting was called
near a police station at which they
knew a large force of police was con-
centrated? Do you mean to imply
that the meeting was called with the
intention of slaughtering a lot of po-
licemen? If so why did they not go
about that business before the meet-
ing had dwindled down to one quar—
ter its maximum strength?
Why should you think that your un-
supported assertions are more to be
believed than the sworn testimony of
Carter H. Harrison? Did he not
testify that the meeting was a legal
meeting; that it was. orderly; that it
was tame; that it was a large meeting,
but that a rainstorm threatened, and
most of the people went home; that
as it was about to disband he went
home, and that he stopped at the po-
lice station and ordered Bonﬁeld to
dismiss his reserves?
Is Mr. Harrison to be believed?
Where do you get the slightest au-
thority (except your own surmises)
that “the scent of danger was in the
air?”
Was the fact that the meeting was
called to denounce the police a suf-
ﬁcient cause for its dispersal?
Do you not, in the above language,
intimate something like this: “They
called the meeting to denounce the
police. Of course the police were not
expected to stand anything of that
—8
kind. They did this, knowing that it
would be the duty of the police to
break up the meeting at which they
were beihg denounced. Nothing else
was to be expected. The scent of
danger was in the air, for a self-
respecting policeman cannot be ex-
pected to allow people to meet for the
purpose of denouncing him.” If you
do not mean this, what can you mean
by saying that the meeting as so con-
ducted as to make it the duty of the
police to disperse it?
Will you not admit that the police, _
at that time, were autocratic in their
bearing, atrocious in their conduct
and barbarous in their readiness to
resort to violence?
Was the meeting a legal one? Has
it been shown (except in the fertile
region of your surmises) that the meet-
ing was illegal, tumultuous or riotous?
Mayor Harrison testiﬁed that it was a
tame affair, and shall you expect us
to accept your unsupported surmise
inpreference to his sworn assertion?
Is it not true that Bonﬁeld was
heard, by a witness whose testimony
stands unimpeached, to say, only a
few hours before the invasion of the
l-Iaymarket meeting, something like
this:
“The trouble with these socialists (or
strikers) is that they always have their
women and children with ’em, and we
can’t get at ’em. I’d like to get about
three thousand of ’em together in a crowd
without the women and children, and I’ll
make short work of ’em.”
Are you fearful lest your readers
may draw their own inferences that
you suppress so important a part of
the testimony?
Referring to the armed march
against the rapidly dispersing meeting
you have said:
“This action of the police was in strict

accordance with the law of the State.
Section 253, Chapter 38, Revised Statutes,
provides that when twelve or more per-
sons, any of them armed with clubs or
dangerous weapons, or thirty or more,
armed or unarmed, are unlawfully, riot-
ously, or tumultuously assembled in any
city, it shall be the duty of each of the
municipal ofﬁcers to go among the per-
sons so assembled and command them im-
mediately to disperse.” (Your Century
article, p. 829.)
The law is common sense, but you .
must make it ﬁt the case, and this you
have signally failed to do. You can-
not cite a scrap of evidence that the
meeting was illegal, or that it was
riotous, or tumultuous. You have
nowhere attempted to show that there
is any evidence except such as goes
to prove that it was a peaceable meet-
ing. Yet you claim to have shown
that it was the duty of the police to
suppress the convocation. Let me
quote your words:
“The duty of the police to disperse a
meeting at which Fielden was telling the
crowd to throttle, kill, stab the law, I have
shown. It was the report, brought by a
detective to the police station, of this pa_rt
of Fielden’s speech that started Bonﬁeld,
with the police under his command.”
(Your Century article, p. 835.)
Where have you shown that such
was the duty of the police? You have
quoted the revised statutes, but you
have failed to ﬁt the quality of the
meeting to the statute. Call you this
the perfection of reason? And again,
do you not allow your surmises to out~
run the evidence? Where is the evi-
dence that the detective’s report of
Fielden’s law-throttling speech started
the police? It is true the detective
said something that may have been
interpreted in that way by one who
was willing to interpret anything in
the most unfavorable light for the de*
fendants. Let us see‘ what the de-
tective did say:
“When I came back Fielden was speak-
ing. He criticised Martin Foran, the con-
9—

gressman that was elected by the working
people. Speaking about the law he says
the law was for the capitalists. If they
loved their wives and children they should
take the law, kill it‘, stab it, throttle it, or
it would throttle them. That appeared to
make the crowd near the wagon more ex-
cited, and I made another report to In-
spector Bonﬁeld.”
Now, I ask ‘you, where in this evi-
dence do you ﬁnd that the report of
the speech started the police? The
detective says that he made a report
to the inspector. Can you say that
the report was of Fielden’s speech; or
was it to the effect that the women
‘and children had gone home? Or
may it not have been a report that the
meeting was about to adjourn, and if
anything was to be done that night it
had to be done in a hurry? '
_ But assuming that the detective did
report that part of the speech, where
in the name of common sense is the
law—quote'it if you can—which makes
it the duty of the police to disperse a
meeting because a speaker at the-
meeting has said something dis-
respectful of the law? If there be a
law against the use of language dis-
respectful to the law, it was the duty
of the police to get a warrant for the
offender and to arrest him, but that
did not make it the duty of the police
to disperse the meeting.
But, I would ask you, where in the
name of common sense, can you ﬁnd
any warrant for Bonﬁeld’s march upon
the meeting, assuming that the de-
tective did report the speech to him,
as you state it? Are we living in Rus-
sia that the police have the power to
determine the extent to which we may
use metaphor? Are there any de-
tectives and‘ policemen in your large
.acquaintance that you would consider
capable of passing upon questions of
rhetoric, belles-lettreis, oratory, illu's-
tration and simile?
Nowhere have you shown that it
was the duty of the police to disperse
the meeting. In one place in your ar-
ticle you quote the law of the State,
but you fail to show how that partic-
ular meeting came within the provis-
ions of the statute. You cannot show
that Fielden’s speech was such as to
make the meeting illegal, riotous or
tumultuous. Yet later you tell us that
“the duty of the police to disperse a
meeting at which Fielden was telling
the crowd to throttle, kill and stab the
law” you had shown. You have no-
where shown it. You have failed to
show anything of the kind.
Can’t you understand the under-
tone? Are you so blind as not to see
that the reason of the mixture that
attends all the approval you so love
comes from just such twistings and
strainings as this?
Will not even little children, in
more enlightened days laugh to scorn
an age wherein a “learned judge” was
sore afraid that advice to throttle, stab
or kill the law meant to kill a lawyer,
or to throttle a judge or stab a law
book?
Do you not know, and does not the
“undertone” know that the duty of
the police was not fulﬁlled that night,
but was violated? Do you not know
that Bonﬁeld’s duty was to obey the
command of his superior ofﬁcer, the
mayor, and to dismiss his reserves?
“It is utterly without foundation for an-
archists or their sympathizers to urge that
the throwing of the bomb was an act of
self-defense. No attack was made by the
police.” (Your Century article, p. 829.)
It is not anarchists alone, or their
sympathizers, but the undertone of
your friends which charges you with
being an unjust judge and by such as-
sertions as this’ you seem to justify such
an animadversion. Was an invasion of
the police, with drawn revolvers not
an attack?
N o sophistry, however reﬁned, and
though it be seven years incubating,
can change the facts in the case-—that
there' would have been no bomb
thrown at the Haymark'et that night
had there not been an unlawful inva-
sion upon a legal meeting. No clamor
about conspiracy, no talk about the
singular notions of the men, no oppro-
bium you can put upon them by hold-
ing them up to the prejudicial hatred
of people who do not know the mean-
ing of the terms as anarchists, social-
ists and communists, can shield you
from the plain facts in the case. And
the facts belie your assertions. It is
because your friends know the facts,
and condone your assertions in con-
travention of the facts, that they can-
not help mixing the undertone along
with their approval of the extirpation
of the anarchists, at any cost.
sun reluing on Gilmer.
“Murder is the unlawful killing of a
human being, in the peace of the people,
with malice aforethought, express or im-
plied.” “An accessory is he who stands
by and aids, abets, assists, or who, not
being present, aiding, abetting or assist-
ing, hath advised, encouraged, aided or
abetted the perpetration of the crime.
He who thus aids, abets, assists, advises
or encourages shall be considered as prin-
cipal and punished accordingly.”
These legal deﬁnitions are quoted
in your Century article. Good laws,
but what a stretch of language is re-
quisite to bring the defendants within
the meaning of either of them.
Was Degan in the peace of the
people? If he hadhad a warrant in
his hand instead of a pistol, or if the
meeting had been an illegal one his
taking off, “with malice aforethought
express or implied” would have made
his death a murder. But assuming
that he was murdei'ed, where in ‘the
evidence have you found, and if found
where in your article have you shown
that the defendants had. advised, en-
couraged, aided, assisted or abetted
the bomb-thrower?
It is true that you have the evidence
of Gilmer and Thompson, but you
dare not lower your self-respect to
train in that company. Yet, repudi-
ating them and their perjury, in seem-
ing, you still avail yourself of the'im-
pression they made on the jury—for
without their testimony your. whole
case fails. _
Now where do you stand? Will
you accept the responsibility of Gil-
mer‘and _Thompson, or will you try
to have it that your own surmises are
good enough to hang unpopular
people with?
The lmnerteotion of some Reasoning.
“If there was a combination and agree-
ment among a great number of individu-
als to kill policemen if they came into
conﬂict with strikers, whether it was the
object to offer a new form of society or
not; if there was such an agreement to
kill the police upon some-occasion that
might occur-in the future, whether the
proper time had arrived being left to their
judgment, then if that violence was used
and resulted in the death of the police,
then those who were party to the agree-
ment were ‘guilty of the death.” (Your
Century article, 1). 832.)
That is to say that it is murder to
combine for the killing of the police
if they be engaged in performing their
duty, and by the same token it is also
murder to kill the police if they are
not within their rights, but trespass-
ing upon the rights of others. If I
resolve to kill a burglar who felon-
iously enters my domicile and agree .
with a number of my neighbors that
-——11
we will help one another in such kill-
ings, therefore, if some person who
was not a burglar and whom we had
never seen was killed in another part
of the county, we are all guilty of mur-
der because of our agreement to kill
burglars. “And the law is common
sense” but some interpretations of it
are nonsense.
In order to follow you into the de-
vious windings of your rulings one
must ﬁrst resolve to do away with all
rules of evidence and decide to accept
as evidence the vague and foundation-
less surmises of the judge. It is a
simple process, but somehow it seems
more at home in the atmosphere of
Russia than Illinois.
But the very gem of your rulings is
the following:
“I' have already stated that the meet-
ings of the anarchists were mostly held
in beer-saloons or halls adjacent. No 54
West Lake street was such a place. This
fact suggested my illustration as follows: '
‘Perhaps’ I can make my views on that
subject clearer by an illustration. Sup-
pose the radical temperance men should,
for a long time, by speeches and publica-
tions, declare that there was no hope of
stopping the evils of the liquor trafﬁc, ex-
cept by blowing up saloons and killing
saloon-keepers that it was useless to ex-
pect any reform by legislation; that no
prohibition laws, nor any other laws
would have any eﬁect in their estimation,
and that therefore they must blow up the
saloons and kill the saloon-keepers,——and
justify their course; suppose that, in ad-
dition to that, they taught means by
which saloons could be blown up and sa-
loon-keepers killed, and then called a
meeting in West Lake street, in front of
54 West Lake street, and while some
speakers were denouncing the liquor traff-
ic and saying to an audience ‘ If you are
ready to do anything do it without mak-
ing any idle threats ’ and another speaker
says ‘Throttle, kill, stab the saloon busi-
ness or it will throttle, kill and stab you,’
(********) and then while that speaking is
going on, some unknown man out of the
crowd, with a bomb of the manufacture
of the temperance people, explodes No. 54
West Lake street, and kills the occupants
of the house—and I apprehend that none
of the parties who are objecting to the
insuﬂiciency of the proof in this case

would have any hesitation in saying that
the men who had advised that conduct
were guilty of it. Your Cent '
p. 835.) ( ury artzele,
And still, in the face of such gross
dishonesty you marvel at the under-
tone. Is it not dishonest to call such
an attempt at a parallel an illustra-
tion? Does it not lack -the essential
factor of the analogy you seek to draw?
Where in the illustration do you place
the descent of the police upon the
meeting?
“Suppose” that in the place indica‘
ted by the asterisks (********) in the
excerpt above you had said “and sup-
pose further, that while this speaking
was in progress the liquor men, being
very irate at hearing their business
denounced, massed together’ 200 of
their bully bravos, armed with revol-
vers, and with these weapons drawn
this little army marched upon the tem-
perance men for the purpose of break-
ing up a meeting at which they ‘and
their business was being denounced”
and then the bomb. Would not this
have been more honest? Do you won-
der at the undertone, when you have
the hardihood to quote this ruling as‘
presenting a parallel case? Do you
wonder that the undertone grows
louder and deeper every year?
I am willing to concede that at the
trial your panicky frame of mind, your
deadly _dread, your nervous trepida—
tion may have accounted for the
omission to which I have referred.
But it would be a stretch of charity to
concede that after seven years you did
not wilfully quote this “ruling” with
the intention of befogging the unwary
reader. Could an impartial trial have
been expected under a presiding judge
who could give utterance to such a
mockery on logic as this?
Such manifestations passing under
the guise of law are calculated to bring
the law into disrespect, and to make
people want to keep their eyes on it,
to throttle, stab, kill it. If such
“rulings” ever become recognized as
law, law will no longer be the perfec-
tion of reason, and. it will become ‘the
duty of every patriot to throttle it.
Ghildish whimpering.
“It is childish whimpering for their ad-
herents to complain that the law deﬁed
by the anarchists was upon their defeat
enforced upon them.” (Your Century
article, 1). 812.)
The undertone you hear is from
among your approvers, and not from
anarchists and their adherents. The
undertone tells you that there is a-
broad among your friends a well-de-
ﬁned conviction that the law was not
enforced against the defendants, but
that it was violated, perverted and
distorted out of all resemblance to
common sense.
Or do you want to be understood as
saying that these men were not enti-
tled to the protection of the laws
which they wanted to throttle?
Does not the above assertion mean
that you think any kind of “law" was
good enough for fellows who did not
Want any?
Let me offset the above gem from
your ‘magazine’ with the following
excerpt from the writings of B. R.
Tucker, anarchist; ‘
“When that most brilliant of Catholic
journalists, Louis Veuillot, was once
taunted by the Freethinkers in power,
because he a catholic and an ,unbeliever
in liberty, had complained that the liber-
ties of Catholics were denied, he thus
made answer to his critics: ‘When I am
not in power, I demand of you, who are
in power, all possible liberties because
you believe in liberty; when I get in pow-
er, you shall have no liberties at all, be-
cause I do not believe in liberty.” (“1n-
steaet of a Bookj’p. 457.)
Childish whimpering! Your whole
article is full of it. Is it not childish
whimpering to complain of the “un-
dertone, which like a minor strain in
music” is mixed with all the approval
that was accorded you while your
whole article is full of virtual admis-
sions that the accusation of the_un-
dertone is true?
Was it childish whimpering on the
part of Judges Prendergast, Tuthill,
Altgeld, Williamson and Baker, with-
in a month after the hanging of Spies
and his companions, to issue a pro-
test against the way the jury in the
anarchist case was constructed?
Was it childish whimpering on the
part of Lyman Trumbull, whose at-
tainments at law and statecraft are
recognized, to say:
“I am not altogether satisﬁed with the
manner in which the trial of the anar-
chists 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 beed committed which was at-
tributed to the anarchists, and in some
respects the trial had the appearance of a
trial of an organization known as an-
archists, 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 con-
nected with the throwing.
. Your Pielden Letter.
Three days before the sentence of
death was executed you addressed to
the governor a letter pleading for a
commutation ofsentence, as to Fiel-
den, and ‘you said therein:
“There is in the nature and private
character of the man, a natural love of
justice, an impatience at all undeserved
suffering, an impulsive temper. In his
own private life he was the honest, indus-
trious and peaceable laboring man. *
* * * * * There is no evidence that
he knew of any preparation to do the spe-
ciﬁc act of throwing the bomb that killed
Degan. He was more a misguided enthu-
siast than a criminal. What shall be done
13—
.viction ?

in his case is partly a question of human-
ity and partly a question of state policy.
Is it not true that none of the men
who were hanged were any more
guilty than Fielden? Is it not true
that without the evidence, such as it
was, against Fielden, even your own‘
prejudice would not have been power-
ful enough to have compassed a con-
Did not the whole case
hinge upon Fielden’s feverish frenzy
with regard to sticking knives into
the law, and putting a rope about the
neck of the law and choking the law?
According to your own showing, it
was this talk of Fielden’s, which a
critical policeman did not like, that
precipitated the trouble? Does not
your letter admit that such a man as
you therein describe could not have
been convicted of murder at a fair
trial?
And is it not true that Spies, Par-
sons, Fischer and Engel were hanged
because they refused to cringe to you?
Would not their lives have been
spared had they not been'conten'ipt-
uous to the court? Was there ever
before a case of contempt of court
punished by death? And was there
ever a court more worthy of con-
tempt?
Is not the undertone a species of
contempt?
Pronhccu.
“Prophecy was fulﬁlled. Just one hun-
dred years before some one of the days
on which Judge Magruder was engaged in
the preparation of that opinion, the citi-
zens of Philadelphia, rejoicing over the
adoption of the constitution of the United
States, by which a. loose confederacy was
welded into a great nation, carried in pro-
cession a banner on which were these
lines:
The crimes and frauds of anarchy ‘shall
fail;
Returning Justice lifts aloft her scale.“
Prophecy was fulﬁlled! On one of
the days on which the Century proof-
reader was taking refuge in the re-
ﬂection that Lord Eldon’s lucidity of
thought might have been dressed in
less turgidity of language, Judge Ma-
gruder gave a fatal thrust to your jury
rulings, by admitting that a decision
of the Supreme Court in the Cronin
case reversed the ﬁnding of the court
in the anarchist case.
It was more than ﬁfty years after
that banner was carried in procession
that the word Anarchy was rescued
from the odium of the Philadelphia
deﬁnition, and made to do service in
its rightful etymological capacity. It
was Pierre Proudhon who thus
used it to , describe a state of society
in which there shall be no rulership
over the non-invasive individual,
which use of the word is justiﬁed by
its derivation.
Are you proud of the quibbling by
which, through prophecy, you aim to
make the Proudhonian use of the
word serve your purpose in its Phila-
delphia sense?
Did you not lug this in for the pur-
pose of inﬁaming the patriotism of the I
groundlings, by seeming to show that
the “fathers” had condemned your
victims in advance of the trial, as the
trial judge had done?
You call this Prophecy, but is it not
really a very poor pun, made upon
the similarity of the words anarchy
and Anarchy? Is it not as one should
say that your article is one of the best
things of the century, and another
that it is one of the stupidest things
of The Century? Neither of the as-
sertions would be true, but there is as
much truth in either assertion as there
is in yours that a fulﬁllment of proph-
ecy is to be found where you claim to
_14__..
ﬁnd it.
By the way, Joseph E. Gary, speak-
ing of prophecy, what say you of
Samuel Fielden’s prophecy? In his
admirable address, showing why sen-
tence of death should not be passed
upon him, he said to you: “ We have
been tried by a jury that has found us
guilty. You will be tried by a jury
that will ﬁnd you guilty.” '
That prophecy is but seven years
old. Has it not been fulﬁlled? Else
why the undertone?
Yes, prophecy was fulﬁlled. I
thank thee, judge, for teaching me
that word! '
And what about this prophecyfrom
the writings of General M. M. Trum-
bull, not an anarchist, but a member
of your own political party and of
your profession:
“If the rulings of the court in the anar-
chist case were healthy in morals and
good law why was the legislature called
upon to cure the judgment by an ex post
facto act of absolution? If those rulings
were legal why legalize them again by act
of the General Assembly? Why transport
them from the intellectual desert of the
Illinois reports to the more fertile region
of the statutes? Why was the “ conspir-
acy” law adopted at all, except as an un-
derpinning to the court, while obsequious
lawyers were trying to lift the decision up
to grade? Statute and decision are alike
illegal, hostile to liberty, savage in pen-
alty, and beneath the dignity of the State.
Some day the people of Illinoiswill call
upon the hills to fall upon the decision in
the anarchist case, and upon the mount-
ains to cover the conspiracy law.”
What is ﬂnarchu?
The state of Michigan has recently
issued from its bureau of statistics a
volume of more than one thousand
pages giving much useful information.
From that book I quote the answer to
the question “What is Anarchy?”
The writer of the annual report (1893)
qm from John enry ac ay, 0 e
of the foremost writers on Anarchy, as
follows:
“All government is based upon
force. Wherever there is force there
is injustice.”
“Liberty alone is just; the absence
of all force and all coercion. Equal—
ity of opportunities for all constitutes
its basis.”
“On this basis of equal opportuniq
ties, the free, independent, sovereign
individual whose only claim on soci- “
ety is that it shall respect his liberty,
and whose only self-given law consists
in respecting the liberty of others—
that is Anarchy.”
“The happiness of the one is that
of the other, and vice versa.”
“When the resources of nature
shall no longer be obstructed by the
violent arrangements of an unnatural
government which is a mockery on
common sense, and which, on the pre-
tense of the general welfare purchases
the mad luxury of an insigniﬁcant
minority at the cost of the misery of
an entire population, then only shall
we see how bountiful is our mother—
nature. Then will the welfare of the
individual in truthhave become iden-
tical with the welfare of the commu-
nity, but instead of sacriﬁcing himself
to it, he will have subjected it to him-
self.”
“For it is this and nothing else that
Anarchism wants; the removal of all
artiﬁcial obstructions which past‘cen-
turies have piled up between man and
his intercourse with his fellow-men,
always and everywhere in the form of
communism, and always and every-
where on the basis of that colossal lie,
designed by some in shrewd and yet
so stupid infatuation, and accepted
by others in equally stupid self-abase-
ment—that the individual does not
—15——
live for himself, but for mankind.”
5even Years ﬂgo.
Is it not true that seven years ago
you did not know that there was any
difference between Socialism, Com-
munism and Anarchism? Did you
not think that one had to be a revo-
lutionist to be either the one or the
other?
But in seven years you have learned
that a man may be a revolutionist and
at the same time be an Anarchist, a
Baptist, a Republican, a Monarchist
or a lawyer; and that he may be a
Socialist, an Anarchist, a Baptist or
a Republican and be opposed to rev-
olution. You know this now; but your
article is written so as to create the
impression that you had learned noth-
ing in seven years. Is this honest?
Looking backward over seven years
you ﬁnd that “the active leaders were
men who fascinated, apparently, those
with whom they cameinto contact.”
Do you marvel at this? Is it not re-
pugnant to your theory that these men
were murderers? But the undertone
does not come from people who were
“fascinated.” It comes from people
who condemned the teachings of these
“misguided enthusiasts” but who re-
alize that they were put to death
without any warrant of law—in spite
of all the recognized legal safeguards
which are presumed, in the theory of
the law, to hedge the citizen about?
The conviction in the minds of the
people that you are an unjust judge
cannot be dissipated by any attempt
of yours to make it appear that the un-
dertone'~ is an evidence of some un-
reasonable fascination -—some mania
on behalf of vicious people.
“Lay not the ﬂattering unction to
your soul that ’tis my madness, not
' their advice. ”
your trespass speaks.”
Seven years ago you may have be-
lieved—because your mind was in a
state of panic and capable of believing
anything that might tend to verify
your own imaginings—that -
“The conviction has not gone upon the
ground that they did have actually any
personal participation in the particular
act which caused the death of Degan; but
the conviction proceeds upon the ground,
under the instructions, that they had gen-
erally by speech and print, advised large
classes to commit murder, and have left
the commission, the time, the place and
when, to the individual whim or caprice,
or whatever it may be, of each individual
who listened to their advice, and inﬂu-
enced by that advice, somebody, not
known did throw the bomb that caused
Degan’s death. Now if that is not a cor-
rect principle of law, then the defendants
are entitled to a new trial.” (Your Cen-
tury Article, 1). 835.)
But after the lapse of seven years
you know that it is not a principle of
law at all. It is neither a correct nor
an incorrect principle of law—it is
merely a statement, made by you as
fact, and unsupported by the proof.
“Somebody not known, did throw the
bomb” and though you have not
singled out the bomb-thrower .you
still undertake to tell. the world, as
part of your defensce, that this unin-
dividuated person had “ listened to
their advice, and was inﬂuenced by
It is neither a state-
ment of law nor of common sense.
IfI advise my neighbor to buy a
revolver and with it kill the next
highwayman that undertakes to rob
him, and then some other man, at
some other time, but with a riﬂe of
the same make that I recommended
to my neighbor, kills a man for booty,
a murder has been done, but I have '
not advised it nor inﬂuenced it.
But how do you know upon what‘
grounds the conviction went? What-
ever you may not have known seven
years ago, you do know now that the
jury was not out long enough to have
read the instructions, not long enough
to have read the indictment, not long
enough to consider the case from any
of its varied aspects. They were out
just long enough to determine that
Neebe was not guilty, but that he
ought ‘also to be punished for being in
bad company all through the trial.
That, as you know, took the entire
, two hours and thirty-ﬁve minutes of
their “deliberations.” The conviction,
as you know now went upon the
grounds of the prejudice of the jury,
‘of the effect upon the jury of your'
own palpable bias; of the assurance
of the State’s attorney that “anarchy
was on trial.” Of course the jury be-
lieved that they were invested (just as
you did) with some particular powers
of state policy, and that they were to
do as the State’s attorney told them.
The conviction, as you Well know,
went upon no particular grounds at
all, but upon general grounds—on
general principles. Hide your head
in the sand as much as you like—but
the world knows this, as well as you
know it.
You allowed the State’s attorney to
pursue tactics in his closing speech
which no just judge on earth would
tolerate for an instant. Yet you mar-
vel at the undertone !
You allowed the State’s attorney to
make a bargain with the jury—you
became a party to the bargain, and
then, in violation of your implied con-
tract, you repudiated and nulliﬁed it.
You allowed the State’s attorney to
impress the jury with their duty to
convict these men, because the state
could not get a new trial, but the de-
fendants could. It was a scandulous
~
trick, and you aided, abetted, encour-
aged—perhaps instigated and advised
it—I do not know, it is none of my
business—whether you did instigate
it, or advise it, but you certainly did
tolerate it. Yet you marvel at the un-
dertone!
Without Precedent. .
“This case is without precedent. There
is no example in the law books of a case
of this sort. No such occurence has ever
happened before in the history of the
world.‘ I suppose that in the Lord George
Gordon riots we may ﬁnd something like
this, but Lord George Gordon was indict-
ed for treason, and the government failed
in its proofs upon the trial as to what he
had done. Very likely they did not want
to prove it very strongly against him. I
do not know. It is none of my business.”
(Your Century‘Article, p, 835.)
No case in the books! What about
the case of the communist of Naza—
reth, and his trial before judge Pon-
tius .Pilate? Did not that learned
judge also yield to popular clamor,
and has not the undertone been deep-
ening and broadening ever since?
- You do not know—it is none of your
business, you say, that George Gordon
was tried by a tribunal which was not
“up to snuff” as it were. We manage
things better in Chicago, do we not?
When we want to get rid of people
whose doctrines we dislike We indict
them for murder and try them for
treason.
No precedent! No, there is no
precedent of a severance ever having
been denied under like circumstances.
No precedent for selecting a jury as
you did in the anarchist case., No
precedent of a judge tolerating such
antics on the part of a State’s attor-
ney. No precedent for a judge ‘in any
civilized country so winking at per- -
jury. No precedent for a denial of a
new trial when the judge knew of
such reasons for it as existed in the
'.-—1.'7——
.itable.
disclosures concerning Ryce, Denker'
and others. No precedent for the
judge at any trial ever having so dis-
tinctly heard an “undertone, like a
minor strain in music” besetting him
on every hand. No precedent for a
defence so weak, as yours, ]oseph E.
Gary.
It is none of your business, you say,
whether the government wanted to
convict Gordon or not. Does not this
imply that you regarded yourself as
part of the government and that the
government did want to convict the
anarchists, and that you were willing
it should be done at any cost?
Dunamlte;
There was a time when the dyna-
mite spook was a hobgoblin full of
terror. But your effort to revamp the
scare now falls ﬂat, stale and unprof-
Dynamite has come to be re-
garded as a tool of civilization—an
implement of the arts and sciences.
That it affords, also, a cheap weapon
for people who are too poor to buy
more expensive ones is nothing to the
discredit of the commodity. Seven
years ago you juggled with the word
to some purpose. But seven years,
in’ this rapid age, is long enough to
make an active superstition passée.
There was time when your board of
trade'tale-how the proletariat marched
in procession and sang La Marseillaise
within a stone’s throw of those sacred
precincts—terriﬁed a rich and power-
ful and inﬂuential class of subscribers
to the funds of the Citizens’ associa-
tion,‘but no more shall you stir the
blood with these fantastic histories.
All in vain shall you now appeal to
the passions of seven years ,ago. No
longer will the blood of the million-
aire thrill with cries for vengeance.
Anarchy is no longer on trial. All
people who read know that anarchy
and dynamite are separate gospels,
with no natural point of contact. All
intelligent people have taken the les-
sons of that trial to heart, and have
not been content to stake their com-
prehension upon the outcroppings of
your own craven fears.

How are we to account for the ex-
traordinary divergence between your
defence and the decision of the Su-
preme court? Is it not true that the
higher. tribunal devotes seven-eighths
of the space occupied by its volumi-
nous decision to the personal connec-
tion of the defendants‘with an as-
sumed conspiracy to kill policemen
on the night of May 4th? ‘And do
you really think any one will believe
your implication that the court would
have upheld the verdict on the gen-
eral grounds which you now seek to
justify? '
Is it not provocative of “under;
tone” that you dismiss the supreme
court decision in a notice of three
lines in your lengthy magazine de-
fence? Is it not because you realize
that the court did not hold the views
which you are now seeking to pro-
mulgate?
I defy you to name any one of the
judges who constituted the court at
that time who will acquiesce in your
present views. Can you name one?
Even the governor (Oglesby) would
at that time have spared the lives of
your victims had it not been for the
perjured testimony which you are now
aiming to discard, because you know
that the undertone never believed it
any more than you did.
If you could be candid in this case
——18—
would you not to have to admit that
without the perjury in the case the
men could not have been convicted?
Now, another thing: Why do you
lay so much stress on the isolation of
the jury? Is that not customary?
Why emphasize it? Can it be that
you imagine the undertone to be in
the form of a question as to when you
discovered that there was a subscrip-
tion being made for the jury in case
they would bring in a verdict of
guilty, and whether you took steps to
ascertain that the jury had received
no intimation of such a subscription?
And why should you emphasize
your own avoidance of all conversa-
tion on the subject?

Your article islike a tale that is told.
Its motive is too transparent. You
have failed to “ﬁre the heart” of man-
kind anew to cry for blood.
The undertone is too strong for you
now. You may conjure with the name
of the law, which you have deﬁled,
and juggle with the terms of outraged
justice, but you shall ﬁnd no respon-
sive chord in hearts that love justice
and revere the law.
You have made your plea. What
is it but the repetition of unsupported
assertion, unfounded surmise, un-
proved theories?
And the undertone, like a minor
strain in music, rings beneath and
through it all, and it pronounces you
an unjust judge.
While other and better men are cra-
ving mercy for the men who still sur-
vive your “theories,” you hold aloof.
Had you the support of your own con-
science—were you maintained by the
consciousness of having honestly per-
formed the obligations of your ofﬁce—
you would not feel obliged to turn the
deaf ear of mercilessness to these
pleas for amnesty. You would not
have felt impelled to write your‘
“Century defence.”
Whatever be the action of the Gov-
ernor on the petitions now before
him, you have been judged, neverthe—
less, and the judgment of the world is
that you are to-day as_ merciless as-
you were seven years ago unjust.
S. E. AMES.

Postscript: I would that I had the
space to quote some expressions of
the public press, upon your magazine.
article. I can make room for but
one, and I select the following from‘
the New York Evening Post, one of the-
leaders of conservative thought in the:
United States. The undertone is
more discernible in this than if you
had never sought to allay it:
“The story, he thinks, is not sufﬁc-
iently understood by the people at‘
large, nor the fundamental reason
why the Anarchists were found guilty
sufﬁciently appreciated._ He has no
difficulty in showing that the leaders
preached revolutionary violence, and
had entered into an organization with
such violence in view as the ultimate:
means of bringing about their ends.
His citations are voluminous to this
effect; but the weight of his argument,
so far as sentence is concerned, rests'
on the plzases 0f tlze law of eonspz'raey
which rendered these men technically
and morally guilty for the 'act of the
unidentiﬁed bomb-thrower by which
the death of the policemen was
caused. [t is, perhaps, unfortunaz‘e
that Judge Gary does not unfold more
lucidly t/ze eumulaz‘z'on and narrow-
ing trend of these facts ﬁxing special
responsz'az'lz'ty on the defendants, instead
of dwelling on the general responsi-
bility of “the whole body of conspir-
ators” to such an extent as to imply
that Judge Gary holds that all the
Anare/zz'sts were equally responsible un-
_'_19_._
der the law, independently of any
question of their degree of nearness
to the particular crime charged. But
he has performed a public service by
setting forth the facts and the law, as
these he in his mind, and submitting
to the judgment of that '“ common
sense” which he invoked the question
in issue. At the outset he states his
own point of interest in declaring
that the question is not whether the
Anarchists deserved death, but
whether they were convicted in accor-
dance with law, and, secondly, that
they were convicted not as Anarchists
but as murderers. The paper mzght
well occasion further examination of the
present justice of the law of conspiracy
as affecting responsibility for death in
a riot, and also of the nature of trea-
son in our form of the State; for it is
evident that what distrust of the ver-
dict, on the legal side, exists in intel-
ligent minds, proceeds from something
obscure, something possibly antiquated,
in these conceptions.”
And I cannot resist the temptation
of reprinting the following, from
The Chicago Tribune, (May 3Ist, 1893)
which intimates that there is a great
deal of room in the law for more
“common sense,” and the other from
The Chicago Herald, April 26th, 1893)
' with a reference to the “anarchist
case” which shows that the undertone
has not been subdued in your own
home by your apology.
“That which the criminal law of
Illinois needs most is a strong infusion
of common sense and the amputation
of a mass of ancient technicalities
which may have had their use centu-
ries ago, but which are obstructions
to the administration of justice now.”
-—-Chicago Trihune.
“If any two or more conspire or
confederate together with the fraudu-
lent or malicious intent to injure the
person, character, business or prop-
erty of another they are guilty of con-
spiracy, and every such offender shall
be punished by imprisonment in the
penitentiary not more than three
years.” It also appears that the Su-
preme Court of Iowa in construing
this statute held that the “crime is
completed when the conspiracy is
formed, and that it is immaterial
whether the object be accomplished
or not.” It does not appear that the
Iowa law is any improvement on the
Russian law relating to the completed
crime in cases of felonious conspira-
cies, and it is quite probable that a
little study of the Illinois court re-
ports would disclose the same doc-
trines. Look into the Anarchist de-
cision.— Chicago Herald.
\. \JJII Hw


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