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 TRIAL OF THE JUDGMENT. 
 
 REVIEW OP THE ANARCHIST CASE, 
 
 BY GEN. M. M. TRUMBULL. 
 
 CHICAGO : 
 
 HEALTH AM) HOME PUBLISHING CO. 
 
 1888. 
 
Copyright, i8S8, 
 By M. M. Trumbuli,, 
 
 All Riphts Reserved. 
 
PREFACE. 
 
 The pamphlet entitled "Was It a Fair Trial," published just 
 before the execution of the so-called anarchists, had such a wide 
 circulation, and excited so much interest, that after the execution a 
 strong desire was expressed by many persons that the pamphlet be 
 enlarged into a review of the whole case as a test of American 
 democracy. 
 
 It was desired that as the former pamphlet was written under 
 the conditions prevailing before the execution, in the shape of an 
 appeal to the governor for clemency, this one should be written 
 under the conditions that prevailed after the execution in the shape 
 of an appeal to the bar and people of Illinois for a reversal of the 
 judgment and a restoration of the law. 
 
 The awful tragedy in the Haymarket was "worked " in such an 
 ingenious way that the American people were thrown into a state 
 of terror as if their government and their constitution were made 
 of brittle glass. Taking advantage of this panic, the law was 
 strangled in the courts that the accused anarchists might be stran- 
 gled on the gallows. Working the people into a nervous state of 
 mind, authority asserted itself like a king, and, borrowing from Lord 
 Salisbury his " coercion " policy for Ireland, adopted it in Chicago, 
 with this difference, that whereas the prime minister of England did 
 not dare to enforce his policy without special warrant of the legis- 
 lature, his imitators in Chicago enforced it without waiting for any 
 legal permission at all. 
 
 In the trial of the anarchists a great wrong was done, not only 
 to them and their families, but to all the people, whose lives, prop- 
 erty and liberties can never be safe where the guarantees of the 
 constitution are disregarded by the courts and the right of trial by 
 a fair and impartial jury is denied. That the wrong done in the 
 anarchist trial and judgment may be righted as far as possible, and 
 that a like wrong may never again be done in the United States, 
 this review is written. 
 
 iM. M TRUMBULL. 
 
 Chicas:o, Februarw 1888. 
 
THE TRIAL OF THE JWMENT. 
 
 On the nth of November, 1887, four men were hanged in 
 Chicago under the forms of law. They were tried by a jury and 
 judgment of death was jjronounced against them. The judgment 
 was affirmed by the Supreme Court of Illinois and ratified by the 
 governor. The public conscience is becoming uneasy under the 
 suspicion that this was a political trial and a class execution, like 
 some historic attainders which have left the imprint of bloody 
 fingers upon the jurisprudence of England. It is averred by friends 
 and believed by many enemies of the condemned men that their 
 trial was unfair, the rulings of the courts illegal, and the sentence 
 unjust. The trial of the Chicago anarchists is ended, but the trial 
 of the judgment under which they suffered is only just begun. 
 When reason and courage return to the people of Illinois, that judg- 
 ment will be reversed, and the terrified magistrates who pronounced 
 it and sustained it will be sentenced to an immortality of derision. 
 It will be reversed as emphatically as the Dred Scott judgment was 
 reversed; as thousands of other barbarous judgments have been 
 reversed; as righteousness in due time shall reverse a thousand 
 more. The march of civilization is over the judgments of supreme 
 courts, and on the ruins of those judgments humanity lays the 
 foundation for better laws. 
 
 The indictment against the judgment in the anarchist case 
 contains two counts: one alleges that the victims of the judgment 
 were innocent of the crime for which they were condemned, and 
 the other alleges that their trial was unfair. The " Revenge " 
 circular of May 4th has been answered by another "Revenge" cir- 
 cular in the shape of a judicial decree. The law of the land has 
 been driven from the court house by the law of retaliation. The 
 issue is not to be evaded by the plea that if the defendants were 
 not guilty of murder they were guilty of something else. They 
 were tried for murder, they were condemned for murder, and for 
 
THE TRIAL OF THE JUDGMENT. 
 
 murder they were put to death! There are state trials famous in 
 history, not because of their dramatic character and surroundings, 
 nor because of the magnitude of the crimes involved, but because 
 in those trials the law itself was twisted out of moral symmetry to 
 gratify public revenge; justice was violated in her own temple and 
 the fountain of liberty polluted. This case will be memorable also, 
 not for the enormity of the crime charged, but for the enormity of 
 the trial. The methods of procedure practiced and allowed by the 
 judges of King James's time — methods now obsolete in England — 
 have been revived in Illinois. Trial by jury has been perverted, 
 even to the shedding of innocent blood, and all the securities of 
 liberty have been put in jeopardy. 
 
 Conspicuous among the accused in this indictment stands the 
 governor of Illinois. Appalled by the clamor of an angry populace, 
 he executed vengeance with merciless decision. Panic-stricken by 
 the noise outside, he shut his ears to the heart-broken prayers of 
 children, mothers, and wives pleading at his knees for father, 
 husband, son. He did this, although he knew that the frightened 
 courts, even when speaking the death sentence, had confessed that 
 errors prevailed in the trial. He did this, when as a lawyer he 
 knew that there were other errors in the trial which the courts did 
 not confess. He had an opportunity to show the highest quality of 
 magnanimous power, and at the same time save the jurisprudence 
 of Illinois from the stigma which must disfigure it for centuries to 
 come. He lacked greatness of spirit, and his opportunity passed 
 away. Had he been morally tall enough to reach the knees of 
 Abraham Lincoln, he would have saved the state of Illinois from 
 "the deep damnation of this taking off." 
 
 It has been contended in excuse for the governor that his 
 authority over a judicial sentence is the prerogative of mercy 
 alone, and that all questions of guilt or innocence, of justice or 
 injustice, have been settled by the decision of the Supreme Court. 
 This is a mistake. The power to pardon is frequently judicial, 
 although the form of its exercise is not. It is true that the governor 
 does not reverse or modify the judgments of the courts except in 
 the form of clemency, yet the power to pardon is continually 
 exercised as a judicial function vested in the chief magistrate. It 
 has been so from the earliest times in England, and there, as here, 
 under the form of mercy, errors of the courts are constantly cor- 
 
A KKVIKW ()!• I'lll-; ANAKCIIIST CASE. 
 
 rected by the pardonin.i,^ power. The case of John Frost will serve 
 as an exam]jle: 
 
 In 1839 l'"rost, Williams and Jones were tried in Wales for high 
 treason. They had levied war against the government. They had 
 led a mob of men to attack the jail at Monmonth, and they had 
 engaged in battle with the police and soldiers. As a consecpience 
 of this mad enterprise tifty men were killed. There was no question 
 about the guilt of the accused, and they were duly sentenced to 
 death. After the trial was over it was claimed by their counsel 
 that the list of witnesses for the crown had not been handed to the 
 prisoners the legal number of days before the trial. This point 
 was assigned for error, and it was referred to the fifteen judges 
 sitting in Westminster Hall. Their answer was: 
 
 First. A majority of the judges in the proportion of nine to six 
 are of opinion that the delivery of the list of witnesses was not a 
 good delivery in point of law. 
 
 But, secondly. A majority of the judges in the proportion of 
 nine to six are of opinion that the objection to the delivery of the 
 list of witnesses was not taken in due time. 
 
 So the judgment was affirmed; but the government said that it 
 would never do to hang three men, however guilty, who at their 
 trial were deprived of any right to which they were entitled by the 
 law. although the prisoners themselves had waived it by not asking 
 for it. The judges having confessed that there was error in the 
 trial it would be a scandal that the men should suffer death. The 
 sentence was, therefore, commuted to transportation for life. In 
 the Frost case the commutation of the sentence was a judicial act 
 exercised in the form of clemency under the pardoning jiower. 
 
 ERRORS IN THE RECORD. 
 
 In the present case the Supreme Court of Illinois confesses 
 errors in* the record, and, as in the Frost case, decides as to some 
 of them that objection was not made in time. For instance, in the 
 •matter of the Most letter, the language of the court is this: 
 
 The objection that the letter was obtained from the defendant 
 by an unlawful seizure is made for the first time in this court. It 
 was not made on the trial in the court below. 
 
 As a technical rule of practice this may be correct, and perhaps 
 binding on the Supreme Court, but it was not binding on the 
 
THE TRIAL OF THE JUDGMENT. 
 
 governor, as the like decision in Frost's case was not binding on 
 the crown. Technicalities in favor of life should be liberally 
 allowed, and this is a maxim of the law. Technicalities in favor 
 of death have a ghastly look; they are altogether shocking, and 
 they are odious in the law. 
 
 In the deepest tragedy there are scenes of comedy. So in this. 
 Scarcely had the Supreme Court handed the seven men to the lord 
 high executioner when up steps Mr. Justice Mulkey, a member of 
 the court, and, with comic paradox, passes mortal judgment upon 
 the decision itself. The stab he gives it is fatal. Here is what he 
 says: 
 
 It is not my intention to offer a separate opinion, as I should 
 have done. I desire to avail myself of this occasion to say that, 
 while I concur in the conclusions reached, and also in the general 
 views as entered in the opinion filed, I do not wish to be understood 
 as holding that the record is free from error, for I do not think 
 it is. 
 
 Which is to sa\', that Mr. Justice Mulkey agrees to the con- 
 clusions, but not to the premises on which they are founded. He 
 agrees to the general views, but not to the special reasons. He is 
 neither ethical nor logical, for if the premises are bad the con- 
 clusion must be at least dubious. If the special reasons are 
 unsound the general views resulting from them cannot sanctify the 
 hanging of men. Judge Mulkey's concurrence in death for the 
 anarchists on general principles is but a judicial echo of the angry 
 clamor of the streets. "They didn't have a fair show," said the 
 ])resident of a vigilance committee, in excuse for the hanging of a 
 gang of bad characters, '• but most of 'em was guilty." The apology 
 was weak. 
 
 Judge Mulkey thinks that he can sanction the decision, and at 
 the same time sustain his reputation as a lawyer by disclaiming all 
 responsibility for its errors. He knows that it becomes authority 
 in Illinois, and that it will be embalmed in the "Reports." He 
 sustains the decision, barring the errors in it. When the passions 
 of this hour are gone, when the bar of Illinois is laughing at the 
 decision as a legal statement. Judge Mulkey reserves the right to 
 say: "I told you so at the time; I said then that errors were in the 
 record: these that you ridicule are the errors that I meant." This 
 resource cannot avail him, because he was not brave enough to 
 
A Ri;\li;\\ oi I 111'. A.\Ak( llISl- CASE. 7 
 
 expose in a separate opinion the errors he confessed. Chief justice 
 Pilate confessed that there were errors in the trial, and even waslied 
 his hands of the judgment, but the stain remains forever. .Mr. 
 Justice Mulkey consented to the death of seven men under a jud,i<- 
 ment which, although legally defective and infirm, was good enough 
 for them. The intimation of Mr. Justice Mulkey that he had a 
 dissenting opinion in his mind, which he declined to spread upon 
 the record, was of itself a full justification for interference by the 
 governor of the state. 
 
 THE ODDS AGAINST THK I'RISONKRS. 
 
 In the trial of the anarchists the law itself was bent and strained 
 to the breaking point. On the floor of the court house they stood 
 at a perilous disadvantage. The scales of justice were not poised 
 evenly between the accused and the state. They were poor; the 
 prosecution rich. The whole machinery of the city and county 
 government was at the service of the prosecution. The treasury 
 was reckless of cost. The police force, the detective force, and 
 every official influence were active against the prisoners. They 
 were beaten from the start. In the arena of life or death they 
 fought against odds unfair and invincible. They played for a jury 
 with dice loaded against them. The indictment was a bewildering 
 contradiction of sixty-nine discordant counts, and every count was 
 the horn of a dilemma. If Schnaubelt threw the bomb, says the 
 Supreme Court, you are guilty as his accomplices, because the 
 indictment alleges that Schnaubelt threw it. If Schnaubelt did not 
 throw the bomb, as you have tried to show, then the case of the 
 state is proved, because the indictment says that it was not thrown 
 by him, but by an unknown person. The exact language of the 
 court is this: 
 
 All the proof introduced by the defendants thus tentling to 
 show that Schnaubelt did not throw the bomb tended also to prove 
 that an unknown person threw it. 
 
 From a dilemma like that escape is hopeless. E^vidence and its 
 contradiction are alike fatal to the accused. From a labyrinth of 
 sixty-nine counts the most experienced pilot cannot extricate the 
 prisoners. There is not a guide either in legal or moral philosophy 
 that can show the way out. ()n this subject the rebuke of Lord 
 Chief Justice Denman. in delivering judgment in the O'Connell 
 case, may be ipioted with approbation. He said: 
 
S THE TRIAL OF THE JUDGMENT. 
 
 I must take the liberty to throw out an observation that, in my 
 opinion, there cannot be a much greater grievance or oppression 
 than these endless, voluminous and unintelligible indictments. The 
 indictment which fills fifty-seven folio pages is an abuse to be put 
 down, not a practice to be encouraged. 
 
 In the O'Connell case there were eight defendants, as in the 
 anarchist case, and they also were imprisoned in the convolutions 
 and sinuosities of an indictment with many counts, " endless, volu- 
 minous and unintelligible." The indictment which drew from Lord 
 Denman that indignant criticism contained only eleven counts, 
 while that against the anarchists contained sixty-nine. This is a 
 six-fold greater "grievance and oppression" than the indictment in 
 the O'Connell case, and the wrong is multiplied a thousand fold 
 when we remember that the anarchists were on trial for their lives, 
 while in the O'Connell case the offense charged was only a misde- 
 meanor punishable by imprisonment and fine. 
 
 _^ THE SUPREME COURT EVADES ITS DUTY. 
 
 A perusal of the decision will show that it is open to severe 
 criticism, not only for the manner in which certain points are 
 examined and reviewed, but also for omitting to give any reasons 
 for deciding other points adversely to the prisoners. The court, 
 after passing judgment upon a number of objections raised by the 
 defense which the judges designate as "the most important," speaks 
 of "some other points of minor importance which are not noticed." 
 "As to these," the weary court remarks, "it is safe to say that we 
 have considered them and do not regard them as well taken." 
 When a man condemned to die points out what he claims were 
 errors in his trial, and asks the court of last resort to pass upon 
 them and give reasons, a refusal to do so is a wrong as plainly 
 visible to layman as to lawyer. It is a flippant thing to sentence a 
 fellow-man to death and at the same time tell him that the points 
 of his appeal have been considered, that they are not well taken, 
 and that it would be a " tiresome" thing to explain the reasons why. 
 The proof that they have been considered should appear in reasons 
 for rejecting them, and it is the duty of the court to show wherein 
 thev are not well taken. 
 
 The judges, in mercy to the condemned men, should have 
 argued, not only such points of the appeal as they considered 
 "most important," but also every point which the men whose lives 
 
A REVIEW OF THE ANARCHIST CASE. 
 
 were at stake regarded as of aii\' importance whatever. Had the 
 decision been the reversal of a verdict, it would have been neces- 
 sary to present only reasons cntnigh to justify the reversal, disre- 
 garding all the others; but this was the affirming of the death 
 sentence against seven men. The defendants had an equal right 
 with the judges to say what assignments of error were "important." 
 Considering that the court was weaving a very long rope for the 
 hanging of seven men — weaving it out of a confused tangle, com- 
 posed of threads of evidence some of which, according to the 
 decision itself, were legal and some of them not — the statement ol' 
 the court that any further comment ''would swell the opinion into 
 tiresome proportions" is no sufficient excuse. There are man\' 
 cases involving only dollars, where longer opinions have been 
 written without exhausting the court. In the "Mordaunt" case — a 
 mere suit for divorce — the opinion is five times as long as the 
 opinion in the anarchist case. In the "Claimant" case — a trial for 
 perjury — the opinion is ten times as long. Dividing the opinion 
 by seven, the number of men condemned, the allowance for each 
 was not large, and although the whole duty of giving reasons may 
 have been "■tiresome,''' the duty ought to have been done. 
 
 The Supreme Court was peevish in satirizing the argument of the 
 defendants as '■'■lengthy.'''' No doubt it was very "tiresome" to con- 
 sider a "lengthy" argument on such a trifling matter as the hanging 
 of seven men. The judges must have been going to dinner when 
 they administered this rebuke: "In their lengthy argument counsel 
 for the defense make some other points of minor importance, which 
 are not noticed." This contemptuous dismissal will be a warning 
 not to offend again. It is true that the trial was lengthy: the 
 indictment was lengthy: the rulings and instructions of the trial 
 court were lengthy. For all these the prosecution was to blame, 
 not the defendants; nevertheless the Supreme Court betrays impa- 
 tience because counsel make a "lengthy" argument in behalf of 
 men condemned to die. 
 
 THE WRONG OF REFUSING SEPARATE TRIALS. 
 
 As if the tortuosities of the indictment were not sufficiently 
 complicated, they were again multiplied by eight when the court 
 refused a separate trial to each of the defendants. There is not 
 another state trial in the history of political prosecutions where 
 
THE TRIAL OK THE JUIK-.MEXT. 
 
 eight men were tried together for their lives on an indictment 
 containing sixty-nine counts. There is not an enlightened nation 
 on the globe that would permit it, and if such a trial can legall)' 
 hang a man in Illinois her civilization needs hurrying up. It is 
 now conceded by enlightened law that it is enough for any one 
 man to defend his own life when the state is arrayed against him in 
 the courts. He is not to be borne down by testimony given against 
 other men who may happen to be indicted with him. To imperil 
 an innocent man by compelling him to join his own defense 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. 
 
 The Supreme Court decides that the matter of separate trials is 
 within the discretion of the court below to allow them or den)- 
 them. This may be doubted, but, if true, it is a judicial discretion, 
 not an arbitrary power; a discretion subject to be reviewed by 
 the Supreme Court, and corrected wherever its exercise has been 
 oppressive or unjust. It is a discretion that may be reviewed by 
 the governor of the state when by its operation the lives of men 
 are placed in jeopardy. The joinder of the defendants made the 
 testimony against each avail against all. It practically deprived 
 them of the benefit of each other's testimony; it embarrassed them 
 at every step of the trial, and it confused the jury, who never even 
 tried to sift the evidence or apply it. In hopeless bewilderment, 
 they cov-^ented themselves with a hurried verdict of guilty "as 
 charged in the indictment," an indictment which alleged the killing 
 of Degan in sixty-nine different ways. They never read the indict- 
 ment, for they were not out long enough to do so. 
 
 Whatever may have been the practice in former times, the 
 current of judicial opinion in modern days has swept away the 
 injustice by which men were tried in batches under indictments 
 fraught with death. The doctrine may now be considered estab- 
 lished in law, as it always was in morals, that defendants in capital 
 cases are entitled to separate trials as of right. It is not a matter 
 at all within the discretion of the couit. Even under the sanguin- 
 ary criminal code of England in the days of political persecution 
 the right of defendants to be tried se]iarately was freely allowed, 
 in the i)rcscnl day a refusal of it would be considered an illegal 
 
A REVIEW <JF THE ANARCHIST CASE. 
 
 act, poisoning the whole current of the trial. In the case of P>ost, 
 Williams and Jones, before referred to, the defendants asked to be 
 tried separately, and, although the court was bitterly prejudiced 
 against them and their revolutionary principles, their demand was 
 conceded as a matter of absolute right. The irrational cruelty of 
 the opposite doctrine is j)owerfully exposed by the fate of Oscar 
 Neebe. 
 
 THE CASK ()) O.SCAK NEEBE. 
 
 Oscar Neebe was tried for murder conjointly with Spies, Parsons, 
 and five others. Knowing his own absolute innocence, and not 
 knowing what evidence might be brought against the rest, he asked 
 for a separate trial. His request was refused. Although all the 
 evidence against him could have been given in a few minutes, he 
 was compelled to stand in peril for two months while all sorts of 
 testimony was poured into the jury-box against seven other men 
 indicted with him. At the end of that time the jury were so stujje- 
 fied by the incongruous mixture that they actually found all the 
 defendants guilty of murder in the first degree^ Oscar Neebe with 
 the rest. 
 
 It seems hardly credible, yet it is true, that all the testimony 
 against Neebe would not justify a five-dollar fine. In their appeal 
 to the Suprem^e Court his counsel say: " We find ourselves at a loss 
 to argue the case of Mr. Neebe. There is absolutely nothing in 
 the record to support his conviction, and in presenting this case to 
 this honorable court we will rest as to Mr. Neebe, and wait to see 
 what the prosecution can say upon this record in support of a 
 verdict and judgment against him under the above indictment." 
 This challenge was accepted by the state's attorney, and answered 
 thus: 
 
 First. Neebe was a stockholder in the organization which owned 
 the Arbeiter Zeitung. 
 
 Secondly. On Monday evening. May 3d, Neebe went into the 
 saloon of Franz Heun and showed him the "Revenge" circular; he 
 spoke to Heun about the McCormick riot, and said: "It's a shame 
 that the police act that way, but maybe the time comes that it goes 
 the other way — that they get a chance, too." 
 
 Thirdly. Michael H. Marks, a police officer, went to the office 
 of the Arheiter Zeiiung on the 5th of May; found Neebe there, who 
 said he was in charge of the office in the absence of Spies and 
 Schwab; Macks told him he was going to search the office; Neebe 
 
THE TRIAL OV THE JUDGMENT. 
 
 said: "All right, you will not find anything there but papers and 
 writing material": Marks found a bag containing dynamite; asked 
 Neebe what it was; Neebe said: "1 guess that is something for 
 cleaning type." 
 
 Fourthly. John Stift, a police officer, went to the house of the 
 defendant Neebe on Friday, the yth of May, and found there a 
 pistol, a sword, a breech-loading gun and a red flag. 
 
 Fifthly. Neebe belonged to the International Association, North 
 Side Group. 
 
 The above is all the evidence that the prosecution pretends to 
 have had against Neebe, yet on that flimsy showing the jury found 
 him guilty of murder in the first degree; yea, of sixty-nine different 
 kinds of murder in the first degree; and the Supreme Court, 
 befogged like the jury by the confusion of testimony against eight 
 different men, blindly affirmed the judgment against Neebe. A 
 jury which, from prejudice or ignorance, or both, could say guilty 
 of murder on evidence so unreal and frivolous was not competent 
 to render a rational verdict on any array of facts whatever. A 
 verdict by a jury of Indians would be entitled to as much consider- 
 ation. They rashly followed the advice of the state's attorney, and 
 found the man guilty of murder, treason, anarchy, disorderly con- 
 duct and "fiat burglary." 
 
 This evidence, trivial as it is, grows weaker on cross-examina- 
 tion; but, without presenting the other side of it, allowing it to 
 stand exactly as it appears in the brief of the state's attorney, it is 
 entirely consistent with innocence. Neebe, had he the least idea 
 that the possession of arms and a red flag amounted to murder in 
 Illinois, or even evidence of murder, could easily have got rid of 
 them between Tuesday and Friday. So, also, he could have thrown 
 away the package of dynamite on Wednesday morning, before the 
 policemen searched the office, had he known what it was. His 
 answer to the policeman must convince any candid mind that he 
 did not know what it was any more than the policeman did, who 
 testified that he thought it was greasy sawdust. 
 
 I>.-\KriS.\N I'l. HADING BY THE SUPREME COURT. 
 
 The opinion of the Supreme Court read like the artful plea of 
 an advocate. It is not the stately reasoning of a dignified and fair 
 tribunal. Here's the subtle way the court made a slip-knot for the 
 anarchists : 
 
.i:\IKW ol- Till", AXARCHIS'l' CASi:. ,3 
 
 On Dec. 29th, 1S85, the North Side ('irou]j, to k'/u'c/i A'cciir be- 
 longed, held a meeting at 58 Clybournc Avenue, and adojjted the 
 following resolutions. 
 
 That is like holding a man responsible for the proceedings of a 
 Freemason's lodge, because he is a Freemason, although he was not 
 present at the lodge meeting, and knew nothing of its action. 
 Neebe was not at the meeting referred to, and knew nothing about 
 the resolutions. The duplicity of the siigo^cstio contained in the 
 above quotation is visible through its thin disguise. A little further 
 on, and just by way of practice, the suggestion is repeated thus : 
 
 The defendant Neebe, as has already been stated, was also a 
 member of the North Side Group, which had resolved " not to 
 meet the enemy unarmed on May i, 1886." 
 
 It was not Neebe that " hatl resolved," but the " North Side 
 Group." Neebe is stealthily brought in by the process of insinua- 
 tion, which answers for evidence. 
 
 Worse than that, the Supreme Gourt condescends to garble tes- 
 timony, in order to shore up the tottering case against Neebe, thus: 
 
 He stated to the officers that a package of dynamite which they 
 found in a closet on one of the floors of a building was something 
 for '• cleaning type." 
 
 Here the court again betrays itself, and reveals the advocate. 
 The plea of the court is that Neebe made a positive statement 
 that was false. Even the willing policeman was not so "willing" 
 as the Supreme Court to make testimony against Neebe. He testi- 
 fied, as the record shows, that Neebe said, ''I guess that is some- 
 thing for cleaning type"; the natural answer of an innocent man, 
 who did not know what the " yellow-looking sawdust " was. The 
 distance is immense between the statement made by Neebe and the 
 perversion of it made by the Supreme Court. Those three si)eci- 
 mens of partisan pleading are enough for the present. 
 
 In addition to all that, the Supreme Court, in a very careless 
 way, falls into error concerning the facts about Neebe. In the fol- 
 lowing statement the court makes a serious mistake : 
 
 He is shown to have been president at meetings where the use 
 of arms and dynamite against the police was advocated on Mon- 
 day night, May 3, 1886. 
 
 Nothing of the kind was shown, or could be shown : and the 
 court must have confounded Neebe, another meeting, and another 
 
J4 THE TRIAL OF THE JUDGMENT. 
 
 time, with the Monday night meeting and another man. This in- 
 justice was not intentional on the part of the Supreme Court, for 
 the bhmder was easy to make. The whole record of the trial was 
 a big library of premeditated confusicn, bewildering jurymen, 
 judges and the governor. 
 
 As the albatross hung around the neck ot the ancient mariner, 
 weighting him down with remorse, so Oscar Neebe hangs upon the 
 state's attorney. To release Neebe would be to acknowledge 
 wrong, because, as Robert Emmett said in his death speech to the 
 court, "there must be guilt somewhere." The release of Neebe 
 would fasten the guilt of his conviction upon the prosecution and 
 all its ministers. It would be a confession, and therefore the state's 
 attornev will not dare to ask for the liberation of Oscar Neebe. 
 
 Be it remembered, as the jargon of the lawyers has it, be it re- 
 membered that Neebe was not at the Haymarket meeting, nor at 
 the Monday night meeting which called it, nor at the meeting of 
 the North Side Group which "resolved," etc.; that he made no 
 speeches, and wrote no articles. As his counsel strongly and 
 honestlv say, " There is no pretense finding support in the evidence 
 that he was present at the Haymarket meeting, or knew of the pur- 
 pose of holding it, or was consulted as to calling it, or knew that 
 the same would be held; and there is no testimony that shows or 
 tends to show that he advised, aided, encouraged, abetted or 
 assisted the throwing of the bomb." Well may they find them- 
 selves at a loss to argue the case of Neebe. 
 
 By trying the defendants all together, nearly every piece of 
 evidence against them separately was multiplied by eight. For 
 instance, a public speech made by Parsons in February, 1885, is 
 made evidence against Fielden and six other men on trial for a 
 murder committed in May, 1886. So, a public speech made by 
 Fielden in March, 1885, is made evidence against Parsons and six 
 others in the same way. Old editorial articles by Spies were made 
 evidence against Parsons and the other six, while editorials by 
 Parsons were transmuted into testimony against Spies. The de- 
 fendants were weighed down with hundreds of criminations, which, 
 having reference to only one of them, were made to bear upon 
 them all. Says the court: 
 
 Spies, Schwab, Parsons and Engel were responsible for the 
 articles written and published by them as above shown. Spies, 
 
A REVIEW OF THE ANARCHIST CASE. i^ 
 
 Schwab, Fielden, Parsons and Knj^^el were responsible for the 
 speeches nuule by them respecti\ el\-. 
 
 Here FieUlen, whose name apjjears not in the first sentence, is 
 ingeniously wo\en into the mixture ol' writing, publishing and 
 speaking, although he never wrote or published anything. 
 
 If it is pretended that the jury applied the evidence to the 
 defendants 'vv.s-/',",-//rv7r," the proof is absolutely conclusive that 
 the\' did not. It was impossible for them to do so in the short 
 time occupied by them in deliberation. In that short time they 
 could not have reviewed, compared or applied the evidence either 
 to the counts in the indictment or to the defendants" respectively." 
 
 The Supreme Court itself was compelled to recognize the illegal 
 character of the testimony above described, although in an apolo- 
 getic way. The confession and apology of the court is in these 
 words: 
 
 Declarations that are merely narrative of what has been done 
 or may be done are incompetent, and should not be admitted 
 e.Kcept as against the defendant making them or in whose presence 
 they are made. The utterances of the defendant Spies, whether in 
 his paper, his speeches or his conversation, were in furtherance of 
 the purposes and objects of the conspiracy in which he was engaged. 
 If testimony as to expressions used by him, that are not of the 
 character here indicated, has crept into the record, it is so incon- 
 siderable that it could not in any way have injured the other 
 defendants. 
 
 What, then, was the testimony that injured Neebe? Surely not 
 the testimony against him. It must have been the testimony 
 against Fielden, Parsons, Lingg, and Spies. 
 
 Unfortunately, a great deal of testimony '• not of the character 
 indicated" was admitted, not only against the defendant making 
 the declarations, but against all the others. It is a violent assump- 
 tion that it could not have injured the others when it is remembered 
 that the jury did not attempt to sift the evidence and attach each 
 piece of it to the particular ilefendant implicated by it. Other 
 errors are mildly rebuked for having •• crept " into the record. 
 They did not creep in. They were crowded in against the protest 
 of the defendants and to their serious injury. By trying eight men 
 together on an indictment of sixty-nine counts the door was thrown 
 wide open, and errors did not have occasion to creep in. They 
 were invited in and welcomed. The court reasons as if the defend- 
 
THE TRIAL OF THE TUDGMEXT. 
 
 ants insisted on a joint trial, and are therefore responsible for 
 the illegal consequences. The prosecution is responsible, not the 
 prisoners. 
 
 The arbitrary joinder of the defendants virtually deprived them 
 of the benefit of each other's testimony. This is not contradicted 
 by saying that they were offered as witnesses and allowed to testify. 
 Their testimony was discredited by the jury, and the Supreme 
 Court intimates that the jurors were justified in disregarding it, 
 because the men were on trial for their lives, and therefore inter- 
 ested enough to speak falsely. Thus, in referring to Fielden's tes- 
 timony, the court says: 
 
 It was for the jury to determine whether he told the truth or 
 not. They had a right to consider that he was on trial for murder. 
 
 All through the argument in the trial below the jury was urged 
 by counsel for the state to disbelieve the testimony of the defend- 
 ants, because they were on trial. Here again the prosecution takes 
 advantage of its own wrong. Having joined the defendants in the 
 trial against their earnest protest, the state urges its own wrong- 
 doing as a reason for disbelieving them. Had they been separately 
 tried, this reason would not have existed except as to the value of 
 each man's testimony for himself. Each man not on trial would 
 have been a credible witness for the others. At all events, it could 
 not have been objected to his testimony that he was on trial for his- 
 life. 
 
 UNFAIR TACTICS OF THE STATE'S ATTORNEV. 
 
 The course pursued by the counsel for the state was unfair 
 throughout the trial. A few examples of the strategy and tactics 
 they employed will prove this accusation. They were permitted to 
 imitate Mark Antony when he inflamed the passions of the populace 
 by pointing them to "Caesar's vesture wounded." They were per- 
 mitted to show the jury not only the wounded vesture of Matthias 
 Degan, but also that of several other men whose names were not in 
 the indictment at all. They were permitted to call the attention of 
 the jury to the blood upon the vesture, after the style of Antony, 
 when he said: 
 
 See what a rent the envious Casca made — 
 Through this the well-beloved Brutus stabbed; 
 And as he jilucked his cursed steel away, 
 Mark how the blood of Cfesar followed it. 
 
A REVIEW OF THE ANARCHIST CASE. 
 
 17 
 
 The artful stump speech of Antony was perfectly Icijjitimate. It 
 was not made in a judicial proceeding, but in a political contest. 
 He was of the opjjosite party to that of Hrutus. The struggle 
 between them was for the possession of the offices and the control 
 of the government. But had Antony been state's attorney, prose- 
 cuting Brutus and Cassius under an indictment for the murder of 
 Ctesar, the Roman judges would not ha\'e allowed him to practice 
 before a jury in the court house the methods he employed in the 
 streets before a mob. The object of Antony in Caesar's case and 
 of the counsel for the i)eo]jle in Degan's case were alike to e.xcite 
 feelings of anger and revenge in the men they were talking to — the 
 jury in the one case, the mob in the other. There was no dispute 
 whatever about the matter of Degan's death, and therefore the 
 exposure of his wounded vesture to the jury was useless and super- 
 fluous, except as an appeal for vengeance. The Supreme Court, 
 unwilling to sanction such a method, finds a weak excuse for it, 
 anil mildly rebukes it thus: 
 
 The articles in question were presented in the condition in 
 which they were left aftei being exposed to the force of an explod- 
 ing bomb, for the purpose of showing the power of dynamite as an 
 explosive substance. While this kind of testimony may not have 
 been very material, we cannot see that it was to such an extent 
 incompetent as to justify a reversal. 
 
 No, it is not pretended that every error is enough of itself to 
 justify a reversal, but when the errors are multitudinous, as they 
 are in this case, a new trial ought to have been allowed. The 
 power of dynamite as an explosive substance was not in issue. It 
 was conceded that dynamite was an explosive substance, and that 
 a dynamite bomb killed Began. The jury knew that dynamite was 
 an explosive substance. They knew it as well before the torn and 
 bloody clothing was exhibited as they did afterward. Mark Antony 
 could as pertinently say that he showed the rent vesture of Caesar 
 to convince the people that daggers had the power to cut. The 
 excuse fails; the purpose of the exhibition is too plain. 
 
 The counsel for the state were permitted to put leading ques- 
 tions to their own witnesses, notably to Gilmer, the most rickety 
 witness of all. He swore that he saw the l)omb thrown and could 
 recognize the man who threw it. A portrait of Schnaubelt was 
 handed to him and he was asked if that was the man. His answer 
 
THE TRTAI. (^F THE JUDGMENT. 
 
 was: "I say that is the man that threw the bomb out of the alley." 
 The question was leading, for it lead the witness to the desired an- 
 swer, y.es. The offer of the picture by itself for identification was 
 unfair. It should have been mixed with others and the witness re- 
 quired to select the portrait of Schnaubelt, without aid or suggestion 
 from anybody. So he was permitted, in a theatrical way, to point 
 out Spies as the man who lighted the fuse. This was all done after 
 the style and manner of the minor theaters where the villain of the 
 play is accidentally identified by a stranger who suddenly appears 
 upon the scene. It is amazing that the Supreme Court allowed it- 
 self to be imposed upon by this bit of melodrama. Here is the 
 way the scene is described in the written opinion : 
 
 When shown a photogragh of Schnaubelt, he said : " I say that 
 is the man that threw the bomb out of the alley." When asked who 
 the man was that came from the wagon towards the group referred 
 to, and lighted the match, he pointed to the defendant Spies, and 
 said, " That is the man, right there." 
 
 This, if natural, would be impressive, but it was entirely mechan- 
 ical and artificial. As the mummery of stage identification is re- 
 hearsed behind the scene, so was this. The witness had rehearsed 
 his part, and very likely had studied the picture. It had been 
 shown to the witnesses for the state by the assistant district attorney, 
 in his own office, and it is morally certain that it had been shown to 
 (iilmer. So, as to Spies. Gilmer had seen the prisoners day after 
 (lay, and knew them all. A performance which could impress a 
 calm judicial body like the Supreme Court must have made a still 
 greater impression on the jury. 
 
 It is shown by a chain of impartial circumstances that the testi- 
 mony of Gilmer cannot possibly be true. He is contradicted by 
 the positive testimony of a great many witnesses for the defense.' 
 He is contradicted by the negative testimony of witnesses for the 
 prosecution. His testimony and theirs cannot be reconciled. His 
 testimony is inconsistent with itself, and it is contradicted by inani- 
 mate witnesses that cannot lie — the street, the alley, the houses in 
 the neighborhood of the tragedy, the wagon, the pile of lumber, and 
 the stature of Schnaubelt. These all bear witness that the testi- 
 mony of Gilmer is not true. It is impossible that the counsel for the 
 state could have believed it at the close of the trial, though they 
 mav have believed it at the bcLdnning. Notwithstanding its demon- 
 
A REVIEW OK THE AXARCHIST CASE. i^ 
 
 strated falsity the testimon)- of (rilmer was ]jlayeil on the jur\- with 
 great ingenuity. It was reinforced froni Des Moines so tluit it 
 might last until the rendition of tlie verdict. Its importance to the 
 state was very great, for it was the only thread that connected a:iv 
 one of the defendants with the actual throwing of the bomb, and 
 though it was weak as the thread of smoke that rises from the l)urn- 
 ing end of a cigar, it pUiyed an awful ])art in the doom of seven 
 men. More than any other part of the secondary e\-idence, it con- 
 trolled tlie jury; and although the Supreme Court evidently dis- 
 trusted it. and even disbelieved it, the tremendous judgment of the 
 court tries to rest upon it. l^neasy there, it throws the responsi- 
 bility u]:)on the jury, and seeks a foundation somewhere else. Here 
 is the nervous ex]jression of the court : 
 
 There is a mass of testimony in the record in reference to the 
 statements made by Thompson and Gilmer. Some of this testi- 
 mony sustains those statements and some of it discredits them. It 
 is sufificient to say that it is very conflicting. It w^as the province 
 of the jury to pass upon it. They had a right to consider it in con- 
 nection with all the other facts and circumstances in the case. It 
 is not necessary for us to pass any opinion upon it, as we think 
 there is evidence enough in the record to sustain the finding of the 
 jury independently of the testimony of Thompson and Gilmer. 
 
 In the i)resence of reasoning like that the imperilled citizen 
 stands paralyzed and helpless. If it is no-t necessary to pass anv 
 opinion upon disputed testimony wdiich influenced a jury to con- 
 demn seven men to death, then such a duty never can be necessary 
 in any case. " Xot necessary to pass any opinion I " Whv, one 
 thousand words of the decision is given to the testimony of Gilmer 
 alone. And every word of the thousand is an expression of opin- 
 ion. Every word of it is adverse to the defendants, and the bene- 
 fit of every doubt is given to the state. In those thousand words 
 are these : 
 
 Witnesses for the defense identified mostly with the Interna- 
 tional organization, and from whom the shots fired at the police 
 must have come. 
 
 What is that but the expression of an opinion adverse to the 
 witnesses who contradicted Gilmer? It is hardly a judicial ex- 
 pression either, for it shows feeling on the part of the court. The 
 genuine opinion of the Supreme Court that the testimony of Gilmer 
 was worthless glimmers in the concluding sentence. "There is 
 
THE TRIAL OF THE JUDGMENT. 
 
 enough to sustain the finding independently of the testimony given 
 by Thompson and Gilmer." 
 
 THE PROVINCE OF THE JURY. 
 
 Wherever the evidence is weak, false, contradictory, improbable, 
 or impossible, redress is denied on the ground that it was '• the 
 province of the jury" to act upon it in their own way. The testi- 
 monv is important if true, reasons the Supreme Court, unimportant 
 if false ; there is enough without it. 
 
 In that very dangerous way, a jury manifestly unfriendly to the 
 defendants is made sole critic of the evidence. It is in the appeal 
 of the defendants that the jury itself was not " impartial," that it 
 was a class jury, not fairly chosen from " the body of the county," 
 that care was taken to select persons hostile to the accused even 
 from the classes drawn upon, and that the state was allowed a greater 
 number of challenges than the law intended; a number, which, 
 whether legal or not, gave the prosecution an unfair advantage. Yet 
 this jury is given absolute ownership of the evidence in the case, to 
 use it at their own discretion for one side and against the other, 
 even to the hanging of seven men. The Supreme Court abdicates 
 its power to pass upon the character, quality, and sufficiency oi 
 evidence in the most important case ever tried in the state of 
 Illinois. This in tiresome phraseology repeated over and over 
 again. 
 
 ''The jiirx were warranted in believing:; i'^^iV'Cvi.Q bomb was made 
 b\- Lingg; " " tlie jury were warranted in believing that the Haymar- 
 ket meeting was not intended to be peaceable; " " the jury were war- 
 ranted in believing that the bomb was thrown and the shots fired as 
 a part of the execution of the conspiracy; " " // was for the Jury to 
 sav whether the evidence for the defense was more worthy of belief; " 
 " the Jury had the right to look at it in the light of the principles ad- 
 vocated by the International organization; " "// 7vas for the jury to 
 say how far that fatal result may have been brought about through 
 the influence of the utterances put forth by the organs here desig- 
 nated;" ^' tlie jiirx -ivere warranted in believing that Parsons was as- 
 sociated with the man who threw the bomb; " '' it was for the jury 
 /y j-av' whether any others than the members of that conspiracy had 
 undertaken to make such weapons;" and so on, in monotonous 
 formulary, page after page. A jury which the defendants allege 
 
A RF.VIEW OF rilK ANARCIIIS r CASE. 
 
 was not impartial is made infallible judge of the legal and moral 
 (.juality of all the evidence. 
 
 In selecting a jury to try the anarchists the jjrinciple of impar- 
 tiality was violated. The form of the statute may have been ob- 
 served, but the spirit of the law was not. AVhole classes of quali- 
 fied i)ersons were stricken from the jury lists, or at least, they were 
 not summoned in the case, which amounts to the same thing. Un- 
 fortunately these were what are known as the " working classes," 
 the classes to which the defendants belonged, and of which, in part, 
 they were supposed to be representative in socialistic and political 
 opinions. These were disqualified for jurymen as effectually as if 
 they had been disfranchised altogether. The whole machinery of 
 legal administration was in the hands of the prosecution; and a 
 common bailiff, a subordinate part of that machinery, was made 
 absolute dictator and autocrat of a jury. The honest safeguard 
 known as "drawing" for a jury was not observed. The equal 
 chance which the " drawing " of jurors from a list of disqualified 
 voters gives to both sides was not given to the defendants. The 
 jurors were not " drawn," but " summoned." They were summoned 
 b\ a mere bailiff, man by man, at his own arbitrary will and pleasure. 
 After he had strained and filtered the jury population of every 
 man belonging to the same classes as the defendants, the prosecu- 
 tion was allowed to filter even his unfair selection by 120 peremptory 
 challenges. Even of the twelve who tried the case, nine confessed 
 themselves prejudiced against socialists, anarchists, and commun- 
 ists, while some of them even admitted that they were preju- 
 diced against the defendants. Yet this is the jury " whose province 
 it was " to pass upon all the evidence, and who were " warranted in 
 believing " anything against the defendants. To hang men on the 
 \erdict of a jury thus chosen and impanelled will be a stain upon 
 the jurisprudence of Illinois long after all the actors in the drama 
 shall have passed away. 
 
 The above criticism on the jury that tried the anarchists, was 
 published a week before their execution in the pamphlet entitled 
 " Was it a Fair Trial ? " A month after their execution, the judges 
 of Chicago, humiliated and ashamed, virtually acknowledged the 
 justice of the criticism, and recommend that the mode of selecting 
 jurors be reformed. Awed and conscience-stricken they advise the 
 restoration of trial by jury in Chicago. In their argument for a 
 
THE TRIAL OF THE TUDGMENT. 
 
 changt of system, they practically confess that trial by jury, in its 
 constitutional meaning, has been abolished in Illinois. When they 
 wrote the following manifesto they must have had before them a 
 vision of seven men illegally condemned to die. It \i2i post-mortem 
 reversal of the judgment of the Supreme Court. The words of it 
 wander through the haunted cells of the county jail like the moan 
 of a repentance that comes too late. They are not anarchists, but 
 Chicago judges, who say : 
 
 The jury system is 7'aluableiusofarasityields impartial juries, and 
 -tL'/ien it does so it is invaluable ; when it fails to do this it is pernicious 
 and dangerous. To be impartial the jury should be selected from 
 all honest walks of life — fro?n 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 which trial juries should be drawn. The following suggestions 
 show how this can be done, and done in such a way that impartial- 
 ity 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 
 dratan from the box, diiiex 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 resi- 
 dences of the one-tenth of the whole body of the citizens thus se- 
 lected 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 purpose, the same to be then thoroughly 
 shaken, such a box to be in the custody of the county clerk. There- 
 after 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 sufficient 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 un- 
 der oath, both as to qualifications and to pass upon excuses, and to 
 dismiss all who do not appear to have the necessary qualifications and 
 all who do not appear to have reasonable and proper excuses. The 
 bailiff in each court is to be furnished with a small box in which 
 the cards bearing the names of the jianel of jurors are to be placed 
 
A REVIEW OF THE ANARCHIST CASE. 23 
 
 and the jury to be called by drawing these cards one hy one at ran- 
 dom 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. 
 \\'e approve the foregoing : 
 
 RicHARiJ Pkf.nder(;as !', 
 Richard S. 1'uthili., 
 John P. Altgeld, 
 
 ROLLIN S. WlLLlA.MSOX, 
 
 Frank Baker. 
 
 This memorial is not only a concession, but a claim that the 
 jury in the anarchist trial was unfair. The words in italics are an 
 eloquent condemnation of that jury, of the despotic agencies that 
 contrived it, and of all the judicial and executive magistrates who 
 affirmed and ratified its mad, revengeful judgment. The jury was 
 not " impartial,'' it was not selected ^\from tiic body of tlie people,'' it 
 wii.% xvo\. '' drajuii from i lie box, ^' \X. was not '' dra-wn at random," it 
 was not '•drawn" at all. It was summoned by a mere bailiff, 
 charged with a mission of death, a subordinate official who was 
 actually invested with the very power which those five judges de- 
 clare to be " pernicious and dangerous," the power of " saying be- 
 forehand what individuals are to be placed on or debarred from the 
 jury lists." 
 
 WAS THE JURV PACKED? 
 
 Judge Prendergast, in urging the reform in the jury system, said: 
 " There is no more reason why a clerk or bailiff should select jurors 
 than that they should select judges." There is hardly a lawyer in. 
 Illinois, off the Supreme bench, who will not agree with Judge Pren- 
 dergast in that opinion; and the force of it is increased when he 
 reminds us that in Illinois the jurors in criminal cases are invested 
 with judicial powers, being judges both of the law and the facts. 
 Those five judges will agree that the jurisprudence of Illinois must 
 suffer a long term of reproach because in the anarchist case a 
 bailiff actually did select the jurors; and it is charged upon him 
 
THE TRIAL OF THE JUDGMEXT. 
 
 that he actually did "select" them in the sense of picking them out 
 for a special and a fatal purpose. 
 
 That the bailiff had the power to pack the jury is not denied by 
 anybody; that he did pack the jury is disputed, but the evidence 
 against him is very strong; that he said he would pack the jury is 
 charged by affidavit of Otis Favor, a citizen of Chicago, personally 
 acquainted with the bailiff. This affidavit has not yet been 
 answered by a counter affidavit, and the presumption arises that it 
 is true. That the trial court denied an application for leave to ex- 
 amine Otis Favor as a witness to the misconduct of the bailiff is 
 confessed and admitted in the record. In justice to all the parties 
 concerned it is only fair that the whole matter of the bailiff's 
 alleged misconduct should be impartially set forth. 
 
 Otis Favor is a man of high character and standing, doing bus- 
 iness in Chicago, and he was personally well acquainted with Ryce, 
 the bailiff. After the trial was over Favor told Mr. E. A. Stevens 
 that when Ryce was selecting the jury he said to Favor, in sub- 
 stance this : "I am managing this case and I know what I am 
 about. Those fellows will hang as certain as death. I am summon- 
 ing as jurors such men as they will be compelled to challenge, and 
 when they have exhausted their challenges, they will have to take 
 such a jury as is satisfactory to the state." Stevens made affidavit 
 that Favor told him this in private conversation. Thereupon de- 
 fendants, in their application for a new trial, asked that Favor be 
 summoned and examined as to the alleged boast of Ryce. This 
 application was refused, the judge deciding that the court had no 
 power to order the attendance at that time of Otis Favor. It should 
 be stated here that Mr. Favor refused to appear and testify or to 
 make any affidavit unless required to do so by an order of the 
 court. The order was refused. He made the affidavit afterward. 
 
 In denying his power to command the attendance of Otis Favor 
 the judge was certainly wrong. The constitution provides that de- 
 fendants in criminal cases shall have compulsory process for the at- 
 tendance of their witnesses. Motions for a new trial are generally 
 supported by the affidavits of witnesses, and if a person who has 
 knowledge of any matter valuable to the motion refuses to appear 
 and testify, he may be compelled to do so. The courts have al- 
 ways exercised the jiower to bring him to the witness stand by 
 
A REVIEW OV Till-: ANARCHIST CASE. 25 
 
 "compulsory process." Without this power courts would be de- 
 prived of half their jurisdiction. 
 
 The state's attorney, knowing that the judge had made a mistake 
 in ruling that the court had no power to compel Otis Favor to 
 appear and testify, deserted his friend and abandoned in the Su- 
 preme Court the erroneous ruling which he had taken advantage of 
 in the court below. He left it outside on the door step, like an 
 illegitimate waif, and substituted another reason for it. He said 
 that it was a matter in the discretion of the court and that 
 
 The court exercised the proper discretion in refusing to have 
 anything to do with it, because no injury and no prejudice had re- 
 sulted from the alleged conduct of said bailiff against any defend- 
 ant. 
 
 He knew when he wrote that in his brief that the jury thus un- 
 fairly chosen by the bailiff had actually condemned seven men to 
 death. A mere trifle, your honors, a mere trifle, from which " no 
 injury and no prejudice has resulted." 
 
 Still feeling insecure, the state's attorney, with daring hardihood, 
 confessed the accusation he was unable to deny. With a brazen 
 effrontery that reminds us of the crown prosecutors of the olden 
 time, he asserted that the bailiff' acted well. Quoting the charge 
 against Ryce, he said : 
 
 There is nothing objectionable in all this, if true, and it means 
 simply that R}ce was endeavoring to summon intelligent and com- 
 petent jurors, against whom no ground of objection and no cause 
 of challenge could be laid. The statute says that he shall summon 
 persons having " the qualifications of jurors," etc. Did counsel ex- 
 pect him to summon disqualified and incompetent jurors? 
 
 The boast of Ryce was that he was summoning such jurors as 
 the defendants would be " compelled to challenge ; " the state's at- 
 torney says that this " simply means that he was endeavoring to 
 secure jurors against whom no cause of challenge could be laid." 
 Such wrenching of words and distortion of their meaning could 
 only be ventured on by an attorney confident that the court was 
 with him, and that his case was safe. 
 
 In the Creator's code of moral government it is provided that 
 some peculiar offenders shall execute retributive justice upon them- 
 selves. This was the fate of the state's attorney who tried the an- 
 archists. He was compelled to stultify himself while his enemies 
 
THE TRIAL OF THE TUDGMENT. 
 
 laughed at his humiliation. Shortly after justifying the conduct of 
 Ryce the bailiff, it became the duty of Mr. Grinnell to try a batch 
 of county commissioners charged with corruption in office. An- 
 other bailiff Avas now in power exercising the " 7'icioiis and danger- 
 ous" privilege of " summoning " the jury. All at once the state's 
 attorney suspected that the bailiff was packing the jury, not for 
 the state, but for the defendants. Instantly he reversed himself and 
 contended eagerly for the doctrine he had so recently condemned. 
 His plea to the court was a retort upon himself. He complained 
 that the bailiff was acting unfairly to the prosecution, and begged 
 the judge to order certain persons to be examined in open court in 
 support of his charge against the bailiff. His request was granted, 
 and the result was that three men were stricken from the jury, 
 although they had been actually accepted in the manner prescribed 
 bylaw. It was highly meritorious in the bailiff who "selected" 
 a jury hostile to the anarchists, but very reprehensible in another 
 bailiff to select a jury favorable to the commissioners. Had he 
 packed the jury against the commissioners, the attorney would have 
 said that the bailiff "was endeavoring to summon intelligent and 
 com])etent jurors against whom no ground of objection could be 
 laid." 
 
 The Supreme Court adopted the argument and very nearly the 
 phraseology of the state's attorney in the matter of the bailiff. 
 They say this : 
 
 The refusal of the court to grant the application is competent. 
 The statements in the affidavit were mere hearsay, and were too in- 
 definite and remote to base any action upon. Moreover, if Mr. 
 Ryce did make the remark to Favor it does not appear that defend- 
 ants were harmed by it. There is nothing to show that Ryce made 
 any remarks of any kind, proper or improper, to the jurors he sum- 
 moned. 
 
 In those sentences there may be observed a style of judicial 
 ]jlea(ling that Supreme Courts do very seldom condescend to now. 
 True, the statements in the affidavit of Stevens were hearsay, but 
 the\' were a proper foundation for an order compelling Favor to 
 testify, and his statements would be original testimony, and legal 
 evidence. Affidavits based on hearsay have always been used as a 
 foundation for the process of the courts. Scarcely a day passes in 
 any court where they are not employed. ''As affiant has beeti in- 
 
A RKAIFAV OK TllK AN AR( 'I IIS'I' CASK. 
 
 formed and believes" is a tonmihi in constant use. XdI to ac:l upon 
 it because it is only " hearsay " would be what never has been, an 
 abdication by the courts of their power to perform that for which 
 they were instituted, which is to ha\-e justice done. Such affidavits 
 — and even beliefs unsworn to — were held sufficient foundation for 
 the introduction of evidence concerning the misconduct of the 
 bailiff in the case of the count}' commissioners, and whv woi in the 
 case of the anarchists ? 
 
 The plea of the Supreme Court that it does not appear that the 
 defendants were harmed by the remark of Ryce to Favor, and that 
 there is nothing to show that R\cesaid anything to the jurors whom 
 he summoned is an ancient manoeuvre in sophistry. It is useful to 
 divert the argument and send it in a wrong direction. In fo.\ hunt- 
 ing times it was figuratively called " throwing the hounds off the 
 scent." A fellow with a red herring in his pocket could trail the 
 dogs away off to the north while the fox was running to the south. 
 It is the affectation of ignorance to pretend that the defendants 
 claimed that harm was done to them by the remark of Ryce to 
 Favor. The Supreme Court knew better. The complaint of the 
 defendants was that they were harmed by the packing of the jurv, 
 of which the remark of Ryce to Favor was merely evidence, an 
 acknowledgement, and a boast. Neither did they claim to be 
 injured by anything said by Ryce to the jurors whom he summoned. 
 The complaint was that the jurors themselves were picked and the 
 jury packed. They objected to what Ryce did, not what he said. 
 They complained that Ryce summoned a jury not to try them, but 
 to hang them. The acts of Ryce are not to be obscured by a 
 cloud of controversy as to what he said. 
 
 The Supreme Court intimates that it was necessary to show that 
 the defendants were actually harmed by the illegalities and errors 
 they complained of in relation to the jury. The court may make 
 that ruling a precedent, but never can make it law. It is not any- 
 where in Christendom that a man condemned to die shall show in 
 his appeal that he was harmed by the selection of a partial, preju- 
 diced, or illegal jury. The sentence of death runs through all the 
 record, and is of itself an omnipresent showing of harm. The law 
 presumes harm to every man sentenced to death by a vitiated or 
 illegal jury. Suppose that Ryce had selected persons disqualified 
 and incompetent by law, and that one of those persons had actually 
 
28 THE TRIAL OF THE JUDGMENT. 
 
 served upon the jury, will the Supreme Court pretend that a man 
 condemned to death by a jury thus imperfect, must show that he 
 has been harmed by the wrongful selection, before he can take ad- 
 vantage of the error? The error being shown, the law raises a con- 
 clusive presumption of harm to the defendant. There may be 
 error without prejudice even in capital cases, but in the anarchist 
 case there was too much of it. It was grim sport to mock men on 
 the steps of the gallows by telling them that they were not harmed 
 by the errors and illegalities perpetrated at their trial. What greater 
 harm can befall a man than to die upon the scaffold? 
 
 The Supreme Court pieced out the case for the prosecution by 
 the following amendment : 
 
 In addition to this, it is not shown that the defendants served 
 Favor with a subpoena, so as to lay a foundation for compelling his 
 attendance. 
 
 This curious reason never presented itself either to the district 
 attorney, or the court below. Naturally it would not, because the 
 defendants had no power to serve Favor with a subpoena. The 
 trial was over; they had no case before the court except a motion 
 for a new trial, supported as to matters outside the record by affi- 
 davit. They could not introduce unwilling testimony to sustain 
 the motion except by order of the court, and this order they were 
 seeking to obtain. Their showing was that Favor would not volun- 
 tarily give evidence, nor make affidavit, and they prayed the court 
 to order a subpcena to be served upon him that he might be com- 
 pelled to appear and testify. 
 
 When, on the 9th of November, intercession was made to the 
 governor for a commutation of the sentence, this accusing affidavit 
 was read to him by Capt. Black. He was evidently unprepared for 
 it, and it startled him like a sting of electricity. He had steeled 
 himself against everything but the clamor of the irrational crowd, 
 and his heart was closed. With strong self-discipline he had nerved 
 himself to show no sign of human feeling, but this affidavit stirred 
 him beyond control, and in a moment of emotion he exclaimed, 
 "Was that statement offered in court?" Being assured that it was, 
 he saw that he had betrayed himself into the hands of amnesty. 
 He escaped again in a moment and showed no further symptoms of 
 palpitation of the heart. He retired into his gloomy fortifications, 
 and there he shut himself up until the end, deaf to reason, justice. 
 
A RFA'IEW OF THE .\N.\K( HIST CASE. 
 
 29 
 
 law, mercy and religion. That morning he offered a very good re- 
 semblance to King George IV. as he is described in the satire of 
 Thomas Moore : 
 
 His table strewed with tea and toast. 
 Death warrants and the Morniiii:; Post. 
 
 He dismissed the pleading delegations, and the next day he sent 
 the death warrants to Chicago. 
 
 THE CASE OF DANIEL O'CONNELL. 
 
 In the O'Connell case the defendants were tried in Dublin for a 
 conspiracy to overthrow the British government in Ireland. They 
 were all convicted and sentenced to fine and imprisonment. The 
 judgment was reversed by the English house of lords, on two 
 grounds, one of which was that the jury had not been fairly selected, 
 for that certain classes of jurymen had been omitted from the ^'ury 
 roll. The manner of doing it was this: The recorder of Dublin 
 had made out the jury lists as required by law, and had returned 
 them to the sheriff as his duty was. From the sheriff's office one 
 list containing sixty names mysteriously disappeared. Of the de- 
 fendants, seven were Roman catholics, and by a curious coincidence 
 it so happened that the missing list was a list of Roman catholic 
 jurymen, and by reason of its absence no Roman catholic was 
 placed upon the trial jury. In other words, men of the same re- 
 ligion as the defendants were excluded from the jurv. The de- 
 fendants challenged the array, but their challenge was overruled for 
 the reason that no fraud or misconduct was charged against the 
 sheriff, and for all that appeared, the missing list might have been 
 lost by accident. The house of lords reversed that ruling and 
 decided that the injury and wrong to the defendants were the same 
 whether the list was absent by accident or design. 
 
 It was in passing judgment in this case that Lord Chief Justice 
 Denman used that remarkable sentence which has passed into our 
 proverbial classics, "A mockery, a delusion and a snare." ^\'hat 
 he said was this: 
 
 If it is possible that such a practice as that which has taken 
 place in the present instance should be allowed to pass without 
 remedy, trial by jury itself, instead of being a security to persons 10/10 
 are accused, will be a mockery, a delusion and a snare. 
 
THK TRIAL OF THE lUDC.MEXT 
 
 In regard to the sheriff's responsibility for the loss oi the jury- 
 list. Lord Denman said: 
 
 The defendants have challenged the array on account of the 
 fraudulent omission of sixty names from the list of jurors of the 
 county of Dublin. It appears to me that that challenge ought to 
 have been allowed. I think that the principle of challenge to the 
 array is not confined to the narrow issue whether the sheriff has 
 done wrong, ^/// involves that larger question whether the party has 
 had the security of trial by a la%vful jury of his country. 
 
 To allow a judgment to stand on a verdict rendered by such a 
 jury, Lord Denman said : 
 
 Would have the effect of securing success to the worst maneuvres, 
 and of unsettling public confidence in the most important function 
 of justice. 
 
 In the O'Connell case only fine and imprisonment were involved, 
 and yet the judgment was reversed because the jur\' list had been 
 mutilated; in other words, because all classes of jurymen were not 
 represented on the lists from which the trial jury was drawn. In 
 the anarchist case seven lives were involved, and the jury was ob- 
 tained bv worse maneuvres than the ''worst maneuvres" employed 
 in the trial of O'Connell. Although nearly a thousand men were 
 summoned, several wards of Chicago were absolutely excluded from 
 representation on the lists from which the summonses were made. 
 Whole classes of qualified jurors were denied a representation on 
 the lists by the arbitrary decision cn a common bailiff of the court. 
 That a judgment of death was cx:;cuted on the verdict of a jury 
 selected in that way, and from a jury list thus mutilated, proves 
 that trial by jury in Illinois instead of being a security to persons 
 who are accused has become " a ]niock.ery, a delusion and a snare." 
 
 The judgment in the O'Connell case was held bad for the ad- 
 ditional reason that the indictment contained eleven counts, some 
 good and some bad, charging the defendants with conspiracy in 
 eleven different ways, and on a verdict of guilty the court imposed 
 a sentence " for the offenses aforesaid," without specifying on what 
 counts the sentence rested. As two of the counts were held bad 
 by the English judges, it was decided that there was nothing in the 
 record to show whether " the offenses aforesaid " were those charged 
 in the good counts or in the bad ones. The " lengthy " indictment 
 of eleven counts not only confused the jury, but entrapped the 
 Irish judges into the blunder of imposing an illegal sentence. 
 
A RHVIEW ()!•■ THF. AXARCIIIST CASE. 
 
 31 
 
 The trial of O'C^unnell ami his colleages was a political prose- 
 cution in which the sympathy of the English was immensely on 
 the side of the government and against the defendants. The feel- 
 ing in England against the ])ris()ners was bitter and malignant as 
 race prejudice, national hatred, and political antagonism could 
 make it, yet the reversal of the judgment against their sarcastic 
 enemv and defamer was almost unanimously approved by the Eng- 
 lish people. They saitl that he did not have fair play in the trial 
 court, and that the judgment against him ought to be reversed. 
 While the bench and the bar were disputing and wrangling over the 
 reversal of the judgment, the people of England, caring nothing 
 for '• the sharj), quick, quillets of the law," guided by moral intelli- 
 gence and the instinct of justice alone, decided that the unfair 
 selection of the jury was an insidious attack upon the liberty and 
 security of the citizen, and that it was not to be endured. They 
 also decided that the law itself was attacked and dishonored when 
 eight men were tried together on an indictment containing eleven 
 counts, a snare of eleven threads. They said, "Better is it that a 
 hundred conspiracies against the government go unpunished than 
 that a judicial conspiracy against the law itself succeed." The 
 journey of Mr. O'Connell to London, after his conviction, was a 
 popular ovation such as few men have ever had in England. Why ? 
 Because the English desired to show him that they did not approve 
 the methods by which he was convicted. They knew that the in- 
 dictment against him was a law spider's web woven to entangle him, 
 and that the selection of his trial jury was unfair. Speaking of the 
 indictment in the O'Connell case, and the reversal of the judgment, 
 an influential London newspaper of the time said : 
 
 The indictment was a legal puzzle placed upon parchment to the 
 confounding of all ordinary understandings, and of none more so 
 than the jury who had to decide upon it. It charged all sorts of 
 things in all sorts of ways; the consequence Avas that many of them 
 were unsound, bad, and untenable in law. The defects were 
 jiointed out by the defendant's counsel in the Dublin court of 
 (Queen's Bench. But the Irish judges all declared the counts were 
 unexceptionable. When the case is removed to England the Eng- 
 lish judges all declare that some of the counts are bad; but the 
 majority of them think the indictment is not sufficiently vitiated by 
 it to render a reversal of the judgment imperative. But that 
 opinion not binding the house of lords, it has decided both that 
 the bad counts do vitiate the judgment, and that it ought to be re- 
 
32 THE TRIAL OF THE JUDGMENT. 
 
 versed; so it is reversed accordingly. The mistakes and mishaps 
 that attended the jury list, and the refusal of the challenge to the 
 array have also had much to do with quashing the decision of 
 the Irish judges. These last points seem to have weighed partic- 
 ularly with Lord Denman; but the grand vice and radical defect of 
 the trial was the " monster" indictment, which may serve as a warn- 
 ing to all future attorneys general to make their charges as unlike 
 it as possible. 
 
 THE STATE TAKES ADVANTAGE OF ITS OWN WRONG. 
 
 In a light and playful way, Mr. Justice Mulkey, confessing 
 errors in the record, talks irony to the condemned men, and says, 
 " Really, so many of you were tried together, the ' wonderment ' is 
 that the errors are not more numerous than they are." The exact 
 language of Justice Mulkey is this : 
 
 In view of the number of defendants on trial, the great length 
 of time consumed in the trial the vast amount of testimony offered 
 and passed upon by the court, and the almost numberless rulings 
 the court was required to make, the wonderment to me is the 
 errors were not more numerous and of a more serious character 
 than they are. 
 
 There must have been grim laughter on the Supreme bench at 
 that burst of sardonic humor, for one of the errors alleged in the 
 appeal was that the defendants were refused the right to be sepa- 
 rately tried. Mr. Justice Mulkey, confessing errors, permitted them 
 to prevail in the doc^m of seven men, for the paradoxical reason 
 that errors were inevitable where so many men were tried together. 
 Was it the fault of the defendants that eight men we're tried " in a 
 row?" Shall the prosecution take advantage of its own mistake, 
 if not its own wrong? Whether designed or not, the effect of such 
 a number of defendants was to throw confusion into the jury box, 
 and errors into the rulings and instructions of the court below. 
 
 Looking at the reasons for Justice Mulkey's "wonderment," the 
 suspicion rises into certainty that all the errors he refers to were 
 premeditated; that with malice aforethought it was deliberately 
 contrived that wrong and not right should be done; that the jurv 
 should be confused, and the judge himself made nervous by a mul- 
 titude of puzzles. Justice Mulkey, no doubt, has very often ruled 
 that a man is jjresumed to intend the consequences of his own 
 actions. Why did he not apply the maxim to the state's attorney? 
 As Justice Mulkey concedes that the trial of eight men together 
 
A REVIEW OF THE ANARCHIST CASE. .. 
 
 must necessarily complicate the case with errors, why shouUl not 
 the state's attorney be presumed to have intended the errors which 
 were the necessary result of his own actions? Had he wished to 
 avoid errors, he should have avoided the cause of them. When a 
 ])rosecuting attorney insists on trying eight men together for their 
 Hves, on an indictment containing sixty-nine counts, the presump- 
 tion is that he anticipates errors and relies upon them for success. 
 
 Like many other judges of some learning and ability, Mr. 
 Justice Mulkey was lacking in judicial courage, when, approving a 
 judgment of death, he condemned errors in the trial of its victims, 
 and dared not specify the errors he condemned. Evidently they 
 were not the errors confessed in the decision of the whole court, 
 because Justice Mulkey intimates that his original intention was to 
 write a separate opinion. He is correct in thinking that this is 
 what he " should have done." In order to hang a few of his fellow 
 men, Justice Mulkey calmly overturned another ancient principle 
 of the law, that where a wrong or error is committed between par- 
 ties, however innocently done, the loss and injury resulting from 
 the mistake must be borne by the side that made it. 
 
 Thus wrong begets wrong, and the Supreme Court travels in a 
 circle round and round. The joinder made errors, and errors are 
 excused because of the joinder. In a '• snare " like that four men 
 were strangled. The joinder of defendants at the trial was the act 
 of the state's attorney himself; yet he was permitted to take advan- 
 tage of it, and multiply his challenges from twenty to one hundred 
 and sixty. The Supreme Court excuses this by quoting the letter 
 of the statute : 
 
 The statute says that the attorney prosecuting on behalf of the 
 people shall be admitted to a peremptory challenge of the same 
 number of jurors that the accused is entitled to. We cannot see 
 how language can be plainer than that. It explains itself, antl re- 
 quires no further remark. 
 
 Certainly language cannot be plainer than that, but the statute 
 is to be construed, not according to its language alone, but accord- 
 ing to its logically moral meaning, or, as Blackstone has it, " ac- 
 cording to the reason and spirit of the law." It never was the 
 reason and spirit of the law that a prosecuting attorney should be 
 allowed to multiply his own challenges at will by joining at his own 
 plear,ure a large number of defendants in one indictment, and then 
 
34 THE TRIAL OF THE JUDGMENT. 
 
 insisting upon it that they all be tried together. The statute means 
 by " the accused " one defendant, and it recognizes in the prose- 
 cution only one accuser. The prosecution may multiply the num- 
 ber (if defendants by joining them together in an indictment, but 
 it cannot multiply itself by its own arbitrary act and will. Law, or 
 not law, the allowance of i6o peremptory challenges to the prose- 
 cution was a '' grievance and oppression." It was i6o challenges 
 against each of the defendants, while they were allowed only 
 twenty each against the state. It is very true that the prosecution 
 used only about sixty of the peremptory challenges allowed them, 
 while the defendants exhausted all of theirs, but this itself is evi- 
 dence that the jurymen selected by the bailiff were favorable to the 
 state and hostile to the defendants. In deciding by the letter of the 
 law, the Illinois judges forgot their early reading. They inter- 
 preted the statute, not according to the rules they learned in 
 Blackstone and the text books, but according to the literal method 
 adopted by the young lady chief justice in the celebrated case of 
 Shylock against Antonio. 
 
 In the more enlightened states of the American Union, the 
 prosecution in criminal trials is allowed only half as many chal- 
 lenges as are given to the defendant. The reason of this provision 
 is that the state has in its own hands all the machinery of the 
 courts. It prescribes the forms of trial, the salary of the judges, 
 the rules of evidence, the qualifications of jurors, and the mode of 
 their selection. This advantage is supposed to be equalized to 
 the defendant by allowing him twice as many peremptory chal- 
 lenges as the state is entitled to. This is a just and humane rule, 
 a protection to the imperilled citizen, a wholesome check upon 
 despotic power, and a useful balance wheel in the mechanism of 
 trial by jury. It is a promise that the state will not take advantage 
 of the unfortunate, and it is a guarantee that the prisoner shall 
 have fair play. No such generous rule prevails in Illinois as yet, 
 and it is mentioned here only to throw the light of contrast on the 
 methods employed to secure a partial and prejudiced jury for the 
 trial of the anarchists. 
 
 In an editorial reply to the pamphlet, " Was it a Fair Trial ? " one 
 of the leading papers of Chicago said that the anarchists got a 
 fairer trial in America than they would have been allowed in Eng- 
 land; that in that country they would have been tried speedily, sen- 
 
A KFAIKW OK llIK ANARCHIST CASE. 
 
 35 
 
 tenced quickl\ , and hanged without dchi\- and without appeal The 
 (luestion was, not what sort of trial tiie men wouhl liave had in Lon- 
 don, but was a fair and impartial trial allowed them in Chica,L(o. 
 The comparison, howe\er, ma\' not he altogether unprcjlUable. It 
 is true that the trial would have been shorter in London than in 
 Chicago, for the prosecuting attorney would not have been permit- 
 ted to try the defendants for the acts and words of years. Secondly, 
 the defendants would have been granted separate trials as of riglu. 
 This would have saved the lives of them all, for it will hardly be 
 claimed that any one of them could have been convicted and 
 hanged on the evidence against him alone, separated from the evi- 
 dence against the rest. Thirdly, they would have had a fair and 
 impartial jury, "drawn at random," from a list of qualified persons 
 selected from " the body of the county." And fourthly, every for- 
 eigner among them would have been entitled to a jury, only one- 
 half of which should consist of Englishmen and L-ishmen, while 
 the other half should be composed of foreigners like himself. But 
 all this is little to the i)urpose here. The English criminal practice 
 is not under criticism in this discussion. The alleged wrongs done 
 in the trial of the anarchists are the theme of this debate. 
 
 THE SPEECHES TO THE JURY. 
 
 It is in the record, and not to be denied that the state's attorney, 
 in his eager zeal for death, broke through the lines of professional 
 etiquette, which the humane spirit of the law has thrown around his 
 office. It is laid down in the books that the prosecuting attorney, 
 like the judge, shall stand absolutely impartial between the prisoner 
 and the state. He must not revile the prisoner, nor insult him. He 
 must not make fact statements in his argument, nor offer to the jury 
 his own opinion on the question of guilt or innocence, because, if 
 he is a popular man in whom the jury have great confidence, his 
 mere opinion may have greater weight than the sworn testimony of 
 other men. All these rules were violated in this case against the 
 protest of the defendant's counsel, and the Supreme Court decides 
 that the "improprieties" were not serious enough to affect the judg- 
 ment. The Supreme Court of Massachusetts once decided that '• a 
 man had a right to quibble for his life." This is true, but it is a 
 ghastly sight to see a lawyer quibble for the death of his fellow- 
 men. 
 
36 THE TRIAL OF THE jUDCiMEXT. 
 
 The speeches to the jury were appeals for vengeance on the 
 prisoners. They were anarchy in legal robes, vindictive and crim- 
 son as the speeches for which the defendants themselves were tried. 
 The moral discipline of the bar was broken, and the ethics of the 
 profession lowered when the state's attorney condescended to pour 
 angry invective and personal reproaches upon men powerless to 
 reply. The dignity of the legal profession shriveled up when the 
 counsel for the people offered fact-statements to the jury free from 
 the guards and sanctions of an oath, and free from the test of cross- 
 examination. Worse than all, the very genius of advocacy looked 
 mendicant and ragged when the state's attorney begged for a ver- 
 dict on the niggling plea that the state had no appeal from acquittal 
 while from a judgment of guilty the defendants could appeal for a 
 reversal to the Supreme Court, or to the governor for a mitigation 
 of the sentence. This was almost a promise that a death sentence 
 having served as an example and a warning; the death penalty 
 would not be inflicted. " Gentlemen of the jury, their blood be 
 upon us and upon our children, not upon you." It was illegal for 
 the state's attorney to absolve the jury from any portion of respon- 
 sibility for the sentence of death. 
 
 "The evil that men do lives after them," and whenever a crim 
 inal trial becomes historic, the wrongs done in its prosecution by 
 either bench or bar, brand themselves in marks of shame upon the 
 perpetrators. No subsequent greatness, not even the glory of judi- 
 cial integrity, nor the splendor of intellectual achievement, can 
 erase the livid lines that tell of deep disgrace. They cling like a 
 bar sinister to character, and remain visible so long as the names of 
 the wrong-doers remain visible in history. Lord Coke, the greatest 
 lawyer, and Lord Bacon, the greatest man, that England ever pro 
 duced, go down to posterity together, branded as vindictive, un- 
 fair, and cruel prosecuting attorneys. Lord Campbell, in his life of 
 Coke, halts in his praise of him to say : 
 
 But he incurred never-dying disgrace by the manner in which he 
 insulted his victims when they were placed at the bar of a criminal 
 court. 
 
 Coke was attorney general, and prosecuted the earl of Essex for 
 high treason in the reign of Queen Elizabeth. Bacon was of coun- 
 sel with him, and behaved, if possible, worse than Coke. After 
 
A REVIEW nv THE AXARCIITST CASE. 
 
 Coke had made a speech to the court, full of iiisull and abuse 
 toward the prisoner, Essex replied : 
 
 He playeth the orator and abuses \-our lordship's ears with 
 slanders, but they are but fashions of orators in corrupt states. 
 
 Lord Campbell, further speaking about the trial of Essex, says : 
 "This was a humiliating day for our ' order,' as Bacon covered him- 
 self with still blacker infamy, by volunteering to be counsel against 
 his friend and benefactor, and by resorting to every mean art for 
 the purpose of bringing him to the scaffold." By our "order'' 
 Lord Campbell means the legal profession, to which he himself be- 
 longed, and the time is not far away when every lawyer in Illinois, 
 speaking of the revengeful and unfair prosecution of the anarchists, 
 and the angry speeches made against them at their trial, and the 
 " mean arts " resorted to for the purpose of bringing them to the 
 scaffold, will say : " T/ia/ was a /imni/iatiiii^ day for our order." 
 
 Coke was prosecuting attorney at the trial of Sir Walter Raleigh, 
 and "lam sorry to say," remarks Lord Campbell, that " by his 
 brutal conduct to the accused, he brought permanent disgrace upon 
 himself, and upon the English bar." 
 
 There is a striking likeness between the manner and words of 
 Coke at the trial of Raleigh, and the manner and words of the dis- 
 trict attorney at the trial of the anarchists. In both cases the re- 
 spective prosecutors poured calumny upon the defendants. " I will 
 prove yau the notoriest traitor," said Coke; " These men are trait- 
 ors," said Mr. Grinnell. "Thou art a monster," said Coke; "Infa- 
 mous scoundrels," said Mr. Grinnell. " I protest I never knew a 
 clearer treason," said Coke; "These men who have committed 
 treason," said Mr. (irinnell. "Thou traitor," said Coke; "These 
 traitors," said Mr. (rrinnell. " I want words to express thy viper- 
 ous treasons," said Coke; "These men are on trial for treason and 
 murder," said Mr. Crinnell. He then went on to assure the jury 
 that the penalty of treason is death, and that they could not modi- 
 ify it to a term in the penitentiary. " No. it is death." said Mr. 
 Grinnell. 
 
 It is difficult to compare two very bad things together, but in 
 comparing those two prosecuting attorneys the superiority is largely 
 on the side of Coke. Sir Walter Raleigh was actually on trial for 
 treason, and when Coke reviled him as a traitor, he was speaking 
 
^8 THE TRTAl, ( )K 'l-HK JUDHMEXT. 
 
 (iirectly to the charge in the indictment. When Mr. Grinnell told the 
 jury in the anarchist case that the defendants were on trial for treason, 
 he said what was not true. There was no such charge against them 
 in the indictment. The jury, however, acted on the statement of 
 Mr. Grinnell, believing that the state's attorney would not mislead 
 them as to the issues they were sworn to try. It is very likely 
 that some of the jurymen still believe that the anarchists were 
 hanged for treason. This parallel may be continued farther. The 
 fate of Raleigh and the anarchists was the same. Commenting on 
 the case, Lord Campbell says : 
 
 Of course, there was a verdict of gi/ilt\\ and the atrocity was 
 perpetrated of ordering him to be executed on this illegal judg- 
 ment. 
 
 In training public opinion to the hanging point, the delusion has 
 been spread among the people of Illinois that a judgment obtained 
 on the verdict of a jury and affirmed by the courts becomes 
 ipso facia di\\(\ dt' Jure legal. But law is only a branch of moral 
 science, and the courts of righteousness have jurisdiction over all 
 its judgments to reverse them or sustain them. Nay, tested by a 
 lower standard, the merely human rules established for the protec- 
 tion of the citizen on trial for his life, the judgment against 
 Raleigh was not only unjust, but iii(\i^-ai. This is the decision of 
 Lord Campbell, himself a lawyer, and lord chief justice of Eng- 
 land. By the unanimous consent of the bar of England, the judg- 
 ment against Raleigh is reversed. Already hundreds of Illinois 
 lawyers admit that the judgment against the anarchists was illegal. 
 Before long it will be reversed as illegal by the unanimous opinion 
 of the bar. Before the tribunal of enlightened conscience the trial 
 of the anarchists must itself be tried, and in that higher court it 
 will surely be condemned. 
 
 There is a lofty and humane contrast to all that in a great state 
 trial mentioned in the history of England; the trial of Ashton, 
 Elliott and Lord Viscount Preston, for high treason, in the reign of 
 William III. It is eloquently described in Macauley's fourth vol- 
 ume, and it will bear repeating here. 
 
 Early in Linuary, Preston, Ashton and l^Uiott had been ar- 
 raigned at the Old Bailey. They claimed the right of severing in their 
 challenges. It was, therefore, necessary to try them separately. 
 A considerable number of judges appeared on the bench, and Holt 
 
A RKVIEW <)!• INK AXAKC HIST CASE. 
 
 presided. The solicitor general, Somers, conducted the prosecutions 
 with a moderation and humanity of which his jjredecessors had left 
 him no example. " I did never think," he said, " that it was the part 
 of any who were of counsel for the K'ln'j; in cases of this nature to 
 aggravate the crime of the jirisoners, or to put false colors on the 
 evidence." Holt's conduct was faultless. PoUexfen, an older man 
 than Holt or Somers, retained a little — and a little was too much — 
 of the tone of that bad school in which he had been bred. The 
 prisoners themselves seem to ha\e been surprised by the fairness 
 and gentleness with which they were treated. " I would not mislead 
 the jur\', I'll assure you," said Holt to Preston; nor do you any man- 
 ner of injury in the world." " No, my lord," said Preston, "I see 
 that your lordship would not." "Whatever my fate may be," said 
 Ashton, " I cannot but own that I have had a fair trial for my life." 
 
 The condemned anarchists could not say that they had a fair 
 trial for their lives. Their wives and children cannot say so; no 
 friends of theirs can say so; and no enemy who has calmly studied 
 the case. The plea for their death was that they were enemies of 
 society, who might beneficially be destroyed. " Anarchy is on trial," 
 said the state's attorney to the jury, and the verdict was responsive 
 to the appeal. " Vengeance is mine," said Populus, " and I will repay." 
 What matters it whether the seven are specifically guilty of the Hay- 
 market affair or not ? They are guilty of anarchy, and for anarchy 
 they are condemned. '• For many months," remarks Populus, " they 
 have challenged me to play a game of murder, and I demand all 
 the stakes I have won." There is force in this claim, and good 
 barbarian logic. Had Populus exacted prompt payment through a 
 vigilance committee, criticism would have been light and transient, 
 but, having a choice of tribunals, Populus chose the court house, 
 and was bound by the rules of the forum he selected. When he 
 took his enemies before a jury he promised them a fair trial ac- 
 cording to the laws of the land, and by that promise Populus was 
 bound. 
 
 THE JURY REQUESTED TO RECONCILE THE INSTRUCTIONS OF THE COURT. 
 
 Not only did the jury have despotic power over the evidence, but 
 they were made critics and reviewers of the trial court itself. It was 
 assumed by the Supreme Court that the jury not only had knowledge 
 and wisdom enough to separate good law from batl law, correct in- 
 structions from erroneous ones, but, also, that they actually made 
 the separation and acted on the good law and the correct instruc- 
 
THE TRIAL OF THE lUDC.MENT. 
 
 tions only. On this, as on other points, the benefit of all doubt is 
 given to the state. The proof of this is found in the decision it- 
 self. Here is the language of the Supreme Court, which assumes that 
 the jury had legal knowledge greater than the trial judge, and in dis- 
 criminating between the right and the wrong did whatever was 
 proper to be done. 
 
 As to the first objection, if we construed the instruction to mean 
 what counsel claim it to mean, we would be forced to agree with 
 them that it was erroneous. It is the duty of the jury to consider 
 all the instructions together, and when this court can see that an in- 
 struction in the series, although not stating the law correctly, is 
 qualified by others, so that the jury were not likely to be misled, 
 the error will be obviated. 
 
 This claim cannot fairly be allowed to one side and denied to 
 the other. The defendants have as good a right to say that the 
 bad instructions qualified the good ones as the prosecution has to 
 say that the good ones qualified the bad. Who shall decide which 
 one of them influenced the jury? How many jurors are compe- 
 tent to analyze a legal mixture composed of good and bad instruc- 
 tions given by the court. Besides, in this case there is an allegation 
 strongly supported that the jury was not impartial, that it was prej- 
 udiced against the defendants, and therefore more likely to be con- 
 trolled by instructions adverse to them than by instructions in their 
 favor. 
 
 In that paragraph is an assumption that the jury were compe- 
 tent to consider all the instructions together, and to strike out those 
 " not stating the law correctly; " and it is also conclusively assumed 
 that they did discriminate between the good instructions and the 
 bail. Unfortunately, the sudden agreement on a verdict proves that 
 the jury did not consider all the instructions together, but only 
 those fringed with the sombre embroidery of death. 
 
 In another place the Supreme Court says : 
 
 Therefore, the instruction fairly interp7-etcd means that the 
 persons advised to commit murder were the working men belonging 
 to and acting with the International Croup. 
 
 There again it is concluded beyond a reasonable doubt that the 
 instruction was " fairly interpreted " by the jury, while the verdict 
 and the swiftness of it are witnesses to the contrary. 
 
 Another im])ortant instruction of doubtful character the Su- 
 
A REVIEW OF THE ANARCHIST CASE. 
 
 41 
 
 preme Court holds was made harmless, if not sound, by comparing 
 it with healthier and more legitimate instructions. These " quali- 
 fied " its meaning and disarmed it. In the language of the Supreme 
 Court: 
 
 The instruction is sufficiently limited and qualified when read 
 in connection with all the other instructions to which it especially 
 calls attention. It does not supercede and stand as a substitute for 
 the other instructions given for both sides. It does not so purport 
 upon its face. On the contrary, the jury are directed to carefully 
 scrutinize such other instructions, and are told that their apparent 
 inconsistencies will disappear under such scrutiny. 
 
 Is that good law in capital cases? Is it not the duty of the 
 court in trials involving life or death to purge the instructions of 
 all '• apparent inconsistencies" before giving them to the jury? If it 
 is claimed that in a trial of eight men together on an indictment of 
 sixty-nine counts, a trial lasting sixty days, the trial court could not 
 possibly scrutinize its numerous instructions so that they would not 
 contain " apparent inconsistencies," how could twelve unlearned 
 men " scrutinize " the same instructions and make the apparent in- 
 consistences "disappear?" There are not twelve lawyers in 
 Chicago learned and skillful enough to perform the feat which the 
 Supreme Court assumes the jury actually performed. The Supreme 
 Court itself is not able to do it. The "inconsistencies " are there; 
 and no extent of scrutiny will make them "disappear." Besides, 
 the evidence is clear that the jury did not attempt to " scrutinize " 
 the instructions except in their most fatal meaning to the men on 
 trial. The Supreme Court continues thus : 
 
 In the last sentence the jury are requested to disregard any un- 
 guarded expressions that may have crept into the instructions which 
 may seem to assume the existence of any facts, and look only to 
 the evidence, etc. 
 
 Why was it that the many creeping illegalities that got into the 
 case were venomous towards the defendants ? How came it that 
 "unguarded expressions" crept into the instructions; expressions 
 that assume the existence of facts ? They could not have crept in 
 except by fogery. They were put in by the judge. Having put 
 them in he politely " requested " the jury to take them out. Where 
 is the evidence that the jury did as requested? There is none, 
 while proof is abundant that they did not. It was unreasonable to 
 expect that the jury would strike out unguarded expressions which 
 
4^ 
 
 Till-: TRIAL OF THE lUDG.MEX T, 
 
 assumed the existence of facts, after the judge himself had delib- 
 eratel}' put them in, and why is it that in all this voluminous case 
 no unguarded expressions '■^ crept in'" which assumed the existence 
 of facts favorable to the accused ? Why is it that the benefit of 
 ever)- doubt is given to the state, while the defendants must bear 
 the evil consequences of every mistake made by the state's at- 
 torney and the judge ? 
 
 THE INVERTED LOGIC OF THE COURT. 
 
 Never before, except in burlesque, was the meaning of words re- 
 versed as in the anarchist trial. Logic stood on its head, and rea- 
 soned with its heels. Facts absent from the theory of the prosecu- 
 tion were solemnly claimed as evidence to establish it. It was 
 averred that if certain events had happened which did not happen, 
 they Avould have shown that the conspiracy and the tragedy 
 were cause and consequence, therefore the connection is proved. 
 This is not meant for ridicule, and its grotesque appearance 
 is merely the shadow of the Supreme Court tracing the crime 
 back to the conspiracy. It is the language of the opinion itself 
 that throws sarcasm upon the decision. Here is the claim of the 
 Supreme Court : 
 
 The mode of attack as made corresponded with the mode of at- 
 tack as planned. 
 
 And here is the inconsequent reasoning by which that claim is 
 supijorted : 
 
 The Desplaines Street Station was in sight of the speaker's wagon, 
 and only a short distance south of it. If a bomb had been thrown 
 into the station itself, and if the policemen had been shot down 
 while coming out, a part of the conspiracy would have heoi liter- 
 ally executed just as it was agreed upon. 
 
 By reasoning upside down in that fashion the tragedy in the Hay- 
 market is connected with a conspiracy that was not carried out, ami 
 seven men vaguely and remotely identified with said " conspiracy " 
 are connected with a bomb thrown by '• a person unknown," and 
 who is not shown to ha\'e had any association whatever with the 
 se\en men, ncjr any connection at all with the so-called consijiracy. 
 The Supreme Court itself virtually rejects the theory that Schnau- 
 belt threw the bomb, for the more comprehensive drag-net theory 
 that it was thrown by '• some person to the jurors imknown." 
 
A REVIEW OV IIIE ANARCHIST CASK 
 
 The coiispirac)- wliich the prosecution attempted to show (ju the 
 trial, and whicli it is pretended they did show, was not carried into 
 execution in any of its essential details. As illustrated and ex- 
 plained by the Supreme Court itself, it was a conspiracy that aimed 
 at a social and political revolution. Hundreds, aye, thousands of 
 men were engaged in it. It was to begin by the throwing of bombs 
 into the North Avenue Station and into other stations in the city. 
 Well drilled men, armed with rifles, were to be stationed outside to 
 shoot the police as they came out; then the conspirators were to 
 march inwards toward the heart of the city, destroying whatever 
 should oppose them; the telegrajjh wires and the hose of the fire- 
 men would be cut, and the reign of anarchy begin. Nothing of the 
 kind occurred; nothing of it was attempted; nothing of it prepared 
 for, except the making of bombs by Lingg. 
 
 According to the conspiracy relied on by the prosecution, many 
 men should have been engaged in it, and many bombs thrown. In 
 fact, only one bomb was thrown, and that by an unknown man. 
 This disproves that conspiracy, and tends to show that the bomb- 
 throwing was the revengeful act of one man alone. There were no 
 armed men with rifles anywhere, and the claim that pistols were 
 fired by the mob is disputed by strong evidence. Every essential 
 detail of the alleged conspiracy was absent from the tragedv, and 
 for want of the necessary facts a scaffold was built of •' if " and 
 '• would have been." 
 
 " // a. bomb had been thrown into the station, and //the police- 
 men had been shot down while coming out, a part of the conspiracy 
 would have been literally executed. 
 
 Antl therefore men must die for a conspiracy which was not exe- 
 cuted, but which would have been executed if something which 
 never happened had been done; a conspiracy, of which if it even 
 existed, some of the condemned men could not possibly have had 
 any knowledge. And thus the evidence in the case overwhelmingly 
 proves that the mode of attack as made corresponded not with the 
 mode of attack as planned. 
 
 Had the indictment been simply for a conspiracy punishable by 
 fine and imprisonment, the prosecution would have been held down 
 to clear and definite allegations with which the evidence would have 
 been compelled to correspond. As it was, the hea\-ier crime of 
 murder was permitted to rest upon an undefined and shadowy charge 
 
^4 THE TRIAL OF THE JUDGMENT. 
 
 composed of opposite and contradictory ingredients. The so-called 
 conspiracy, instead of being a siibstantial accusation based on fact- 
 averments on which issue might be taken, was nothing but a claim 
 growing out of a mass of incoherent running testimony, and shift- 
 ing day by day. The conspiracy was a remote cloud changing its 
 form continuously in obedience to the changing winds of evidence. 
 One day it was like a weasel, the next it was backed like a camel, 
 and at last it was " very like a whale." 
 
 Allowing the so-called conspiracy the exaggerated form given to 
 it by the state's attorney, the parts of it were so remote from each 
 other, and from the defendants respectively, that no criminal rela- 
 tionship could ever be established between them. The details of it 
 could never have been set forth by specific averments in an indict- 
 ment. It was a huge pretense, composed of incoherent stories and 
 contradictory evidence. It was a constructive conspiracy which 
 could not have stood alone in any civilized court, and yet it was 
 held good enough to sustain a charge of murder and the conviction 
 of eight men. The suspicion already weighs like a nightmare on 
 the people of Illinois that men were hanged in Chicago for 
 metaphorical treason under an indictment for inferential mur- 
 der. It must ever be a reproach to the memory of Governor 
 Oglesby that in his administration the illegal doctrine of construct- 
 ive murder and collateral guilt was affirmed by death warrants 
 carrying on their faces the sanction of the great seal of Illinois. 
 
 The dangerous theory of implied complicity was extended over 
 the miscellaneous words and deeds said and done by eight men 
 during sixteen months of their lives. Yea, it was stretched to New 
 York city so as to include the lurid threatenings of a book which 
 some of the defendants had never read; a book written by a 
 man who was not on trial at all. A private conversation had in 
 Michigan some time in February, 1885, between Spies and a friend, 
 was given in evidence against Lingg, who was then in Germany, 
 and against six other men who never heard a word of it, nor knew 
 anything about it until it was given as testimony at the trial. This con- 
 versation itself, even if correctly remembered, was nothing more 
 than a general expression of revolutionary speculations. To intro- 
 duce it against Spies himself was unjust; to introduce it against the 
 others as evidence of a conspiracy to murder, was an act of op- 
 pression. The Supreme Court pretended that although it was im- 
 
A REVIEW OK THE ANARCHIST CASE. 
 
 43 
 
 proper to introduce the conversation as evidence against any of the 
 defendants except Spies, it did not injure them. How did tlie ccnirt 
 know that? All the testimony was thrown into a sort of hotch-jjot, 
 and the jury used the whole of it against every man on trial. The 
 decision of the Supreme Court contains many expression like these : 
 " The defendant, Spies, in a speech made in October, 1885, said." " In 
 speeches made by him, the defendant Parsons said in February, 
 1885." "And in August, 1885, he said." "The defendant Fielden, 
 in speeches made by him in March, 1885, said." " In October, 
 1885, he said." " He said in December, 1885." '• He said in Jan- 
 uary, 1886," and so on. It was not shown that the other defendants 
 heard those speeches or knew anything about them; nor was it 
 shown that the speeches had any reference to the future tragedy in 
 the Haymarket. They were violent political harangues publicly 
 made, and of a denunciatory character. This is conceded by the 
 Supreme Court in the following statement : 
 
 All the evidence shows that the day fixed for the inauguration of 
 of the "social revolution" was the ist of May, 1886. 
 
 This doctrine of cumulative responsibility, joint and several, is 
 worthy of a reign of terror. Under it, not only freedom of public 
 speech will be destroyed, but freedom of private speech also. So- 
 cial confidence will disappear, and no man will dare to utter his po- 
 litical opinions in conversation with his neighbor. Lord Holt re- 
 buked it on the trial of Harrison for murder. The counsel for the 
 prosecution calling a witness to prove some felonious design of the 
 prisoner three years before, the judge indignantly exclaimed : 
 
 Hold, hold! What are you doing now? Are you going to arraign 
 his whole life? How can he defend himself from charges of which 
 he has no notice ? And how many issues are to be raised to perplex 
 me and the jury? Away, away! That ought not to be; that is 
 nothing to this matter. 
 
 At the trial of the anarchists a multitude of charges was pro- 
 duced against them of which they had no notice, and a profusion 
 of issues was raised to perplex the jury and the judge. 
 
 THE SHARP CASE. 
 
 The first judicial satire on the anarchist case comes from the 
 state of New York. The decision of the New York Court of Ap- 
 peals in the Sharp case, throws ignominy upon the Supreme Court 
 of Illinois. A few bits of improper testimony were admitted on the 
 
46 THE TRIAL OF THE JUDG.MEXT. 
 
 trial of Sharp, and because of them the Court of Appeals reversed 
 the judgment against him. Similar errors, but greater, and fifty 
 times more numerous, were sustained by the Supreme Court of Illi- 
 nois; and giving those errors judicial consecration, that warped tri- 
 bunal condemned seven men to die. Men were hanged in Chicago 
 despite of illegalities greater than those which in the state of New 
 York vitiated a mere sentence of imprisonment. It was claimed 
 by the prosecution in the Sharp case, as in the anarchist case, that 
 granting the illegality of the testimony complained of, there was 
 evidence enough outside of it to justify the verdict. The Court of 
 Appeals disallowed this claim for the reason that even if well 
 founded it would not legalize the verdict, because perhaps the il- 
 legal testimony was the convincing evidence that prevailed upon 
 the jury. 
 
 The mischievous heresy of cumulative responsibility in several 
 defendants for the separate actions of each other, and the Illinois 
 absurdity of tacking one man's crimes to another man's defense, 
 could not obtain any recognition from so enlightened a tribunal as 
 the New York Court of Appeals. The Illinois pretense that offenses 
 multiply themselves by the rules of geometrical progression accord- 
 ing to the number of persons implicated, was treated with derision 
 by that court. The unwarranted conceit that the separate acts of 
 Miller, Phelps, Keenan, Moloney and DeLacey, were parts of the 
 "original conspiracy," done "in furtherance of the common de- 
 sign," was rejected by the Court of Appeals. A man may not be 
 able to explain or defend the actions of another, while he may be 
 able to defend and explain his own. 
 
 It has been said that the Sharp case does not offer a proper con- 
 trast because Sharp was a millionaire, and therefore ineligible to the 
 penitentiary. It is claimed that had the anarchists been rich the 
 errors in their case would have reversed the judgment. This does 
 not weaken the present argument; it is merely a repetition of the 
 familiar truism that capital punishment has been abolished in Illi- 
 nois except in the case of the poor. 
 
 THE STATE CONFESSES AWAY THE CASE. 
 
 "Thine own mouth condemneth thee; yea, thine own lips testify 
 against thee." This reproach is fastened upon the state's attorney, 
 and the judge who tried the anarchists. Their own lips testify 
 
A RKVIKW OK rilK ANARCHIST c:aSE. 
 
 47 
 
 ai;aiiist them. T1k'\- plcadctl w itli the governor to respite Fielden, 
 and their prayer is an indictment against themselves; an indictment 
 more terrible than the snare with sixty-nine deatl-falls which the\- 
 set tor the anarchists. To hang Parsons and spare Fielden was il- 
 logical, and the reasons given for the anomaly change the execution 
 of Nov. II into a sacrifice, a punishment into a martyrdom, fudge 
 (lary and Mr. Grinnell begged clemency for Fielden on the ground 
 that the e\idence did not justify the \erdict and the sentence. The 
 e\-idence that convicted Fielden convicted the others, and the argu- 
 ment for him applies to all. 
 
 In Judge Gary's letter to the governor he says : 
 
 There is no evidence that Fielden knew of any preparation to 
 do the specific act of throwing the bomb that killed Degan. 
 
 This astonishing statement is indorsed in writing by Mr. Grin- 
 nell. It is a remarkable act of self-stultification, because Judge 
 (iary, when asked at the trial to instruct the jury that such evidence 
 was necessary in order to convict a man of murder, refused to do 
 so. It is more criminating still because Judge Gary began his let- 
 ter by referring the governor to the decision of the Supreme Court 
 for '-a history of Fielden's crime." This was an ungrateful return 
 for the leniency shown by the Supreme Court to the mistakes made 
 by Judge Gary at the trial. His assertion that there was no evi- 
 dence that Fielden knew of any preparation for the bomb throwing 
 is a sardonic censure of the decision itself, because the Supreme 
 Court laboriously tries to show from tlie evidence that Fielden did 
 know about those preparations, and that he was the very man who 
 gave the signal to throw the bomb. The court dwells upon the evi- 
 dence that Fielden began the affray by firing into the ranks of the 
 police, and they note especially the testimony of six men who swore 
 positively that they saw Fielden shoot at the policemen. The court 
 also sneers away the testimony of six other men who swore thev did 
 not see him fire. The Supreme Court was deceived as the jury was 
 deceived by the cunning suggestion that the word " peaceable " used 
 by Fielden just before the bomb throwing, was the English equiva- 
 lent to the German word " Ruhe," said to be the signal cry agreed 
 upon to rally the armed sections whenever it should appear in the 
 Arbeiter Zeitung. Some other suspicious acts of preparation per- 
 formed by Fielden on Tuesda}- night, and previouslv; are heavih- 
 
4S THE TRIAL OF THE JUDGMENT. 
 
 referred to by the Supreme Court in its " history of Fielden's crime." 
 The evidence against Fielden was far more deadly than the evi- 
 dence against Parsons and the others. False, twisted and ambigu- 
 ous though most of it was, it brought him closer to the bomb-throw- 
 ing than any of the rest, both in word and deed. That Spies lighted 
 the fuse is no longer believed by anybody. In iact, it was from 
 Fielden that the prosecution traced its threads of circumstance to 
 the " co-conspirators." With the evidence against Fielden gone, 
 there is little or nothing left to implicate some of the others, and 
 especially Parsons. They were hanged on the theory that they 
 were Fielden's accomplices. Unless the state's attorney can tie them 
 tO'Fielden, he cannot connect them with the crime at all. If there is no 
 evidence to sustain the charge of murder against Fielden the pun- 
 ishment of Parsons has no legal support. Convinced of that, the 
 Supreme Court devotes more attention to Fielden than to any of 
 the others, and with weary travail tries to fasten upon him a direct 
 agency in. the killing of Degan. 
 
 When did Mr. Grinnell discover that there was "no evidence" 
 of guilty knowledge against Fielden? Judge Gary may have dis- 
 covered it as soon as he found time to take a calm review of the 
 trial. But when did Mr. Grinnell find it out? Months after the 
 trial, he pleaded hard before the Supreme Court for Fielden's death. 
 Did he know then that Fielden was an innocent man? If not, when 
 did he first suspect it? At the March term, 1887, in his brief and 
 argument before the Supreme Court, Mr. Grinnell contended strongly 
 for Fielden's guilt. He dwelt long and earnestly upon Fielden's 
 preparations. In order to give some legal color to the action of the 
 police, he asserted that Fielden's inflammatory appeal to the crowd 
 to "kill the law," to "stab it," to "throttle it," was reported to the 
 police inspector, and because the crowd had become excited by 
 Fielden's oratory, the police were marched up to the meeting. He 
 dramatized the tragedy and made Fielden the principal actor in it. 
 " Here come the bloodhounds," said Fielden; " you do your duty 
 and i will do mine." Mr. Grinnell tried to show the connection 
 between Fielden's word "peaceable," the instant throwing of the 
 bomb by somebody else, and ])istol firing by Fielden. Said Mr. 
 Grinnell : 
 
 Before the police appeared Fielden made a speech not only in- 
 flammatory and incendiary in character, but actually seditious and 
 
A REVIEW ()E THE ANARCHIST CASE. 
 
 49 
 
 treasonable. This speech was a direct enc()ura,uemcnl to do the 
 very act which was done that night. 
 
 That is the way Mr. Grinnell addressed the Supreme Court in 
 March. In November he joins with Judge Gary in saying to the 
 governor of the state " There is no evidence that Fielden knew of 
 any preparation to do the specific act of throwing the bomb that 
 Ivilled Degan." Then, of course, Fielden could not be guilty of the 
 murder of Degan by the throwing of that bomb. 
 
 The dark suspicion must ever rest on Mr. Grinnell, that he knew 
 Fielden was innocent, just as well in March, when he was pleading 
 to the Supreme Court for the unfortunate man's death, as he knew 
 it in November, when he was pleading to the governor for his life. 
 His confession converts the whole trial and its fatal catastrophe into 
 a cob-web of solecisms, entangling judge, jury, counsel, the Su- 
 preme Court, and the governor. 
 
 If Fielden is innocent of murder, why is he imprisoned in the 
 penitentiary; and why was Parsons hanged? Truly, there must be 
 guilt somewhere. The Supreme Court makes Parsons guilty on the 
 ground that he was present at the Haymarket meeting and spoke. 
 The court acknowledged that he was in Cincinnati on Monday, and 
 knew nothing at all about the pretended conspiracy claimed to 
 have been formed that night. It was conceded that the s|)eech of 
 Parsons was moderate in tone, that he had his wife and 
 children with him, that he left before the arrival of the police, 
 did no pistol shooting, gave no signal, and was not present 
 when the bomb was thrown. But he was present at the meeting in 
 company and association with Fielden, and thus adopted the '' con- 
 spiracy" of Monday night, although he never knew a word about it. 
 He was Fielden's accomplice, and for that he was hanged. After 
 the acknowledgment made by Judge Gary and Mr. Grinnell, there is 
 literally nothing left against either Fielden or Parsons, except revo- 
 lutionary rant, and a sanguinary newspaper. Seditious writing and 
 inflammatory speech are not murder, but capital punishment in- 
 flicted upon men for either offense, is murder. 
 
 Offended justice sometimes takes revenge in a grotesque and 
 comical way. In this case it uses Judge Gary and Mr. Grinnell to 
 draw black lines around the notorious decision which condemned 
 seven men to die. The long tragedy of errors enacted by Judge 
 Garv and Mr. Grinnell is honored in all its mocker\- of law bv the 
 
THE TRIAL OF THE JUDGMENT. 
 
 approval of the Supreme Court. Through a labyrinth of cross-roads 
 and by-ways, the Supreme Court tracked Fieldeu from February, 
 1885, to May, 1886, and contended that every step he took was a 
 preparation for the throwing of the bomb. Though most of it was 
 obviously false, the Supreme Court accepted all the testimony 
 against Fielden as true, and called it ^^ proof y Such parts of the 
 play as it could not approve it excused, and triumphantly claimed 
 that under the evidence Fielden was properly convicted of murder 
 in the first degree. Now come the chief actors in the awful drama, 
 and pointing to the decision of the Supreme Court for a "history 
 of Fielden's crime," declare " there is no evidence that Fielden 
 knew of any preparation to do the specific act of throwing the bomb 
 that killed Degan." 
 
 THE TRIBUTE OF PRAISE TO FIELDEN. 
 
 Judge Gary in his appeal for Fielden describes him as " an hon- 
 est, industrious, and peaceable laboring man," having " a natural 
 love of justice " and " an impatience at all undeserved suffering." 
 He also says that Fielden " was more a misguided enthusiast than 
 a criminal." He also testifies that "in what Fielden said in court 
 before sentence he was respectful and decorous." Mr. Grinnell 
 adopts this tribute and says that Fielden's address "was decorous, 
 respectful to the law, and commendable." There is more self-con- 
 demnation in this praise than the judge or the state's attorney sus- 
 pected when they gave it. Fielden's address is a terrible arraign- 
 ment of them and their methods. Excepting Robert Emmett's 
 death speech in which he rebuked Lord Norbury, there is nothing 
 equal to it of its kind. The famous reply of Thomas Francis Mea- 
 gher, when asked why sentence of death should not be passed upon 
 him, although more polished and stately, is not so " strong in hon- 
 esty," so bold in utterance, so truthful in assertion, so convincing in 
 denial, so pathetic in statement, and so manly in justification of his 
 motives, as the speech of Samuel Fielden in answer to the same 
 question. Fielden's withering prophecy is equal to anything in the 
 speech of Emmett. Solemnly addressing Judge Gary and Mr. 
 Grinnell, he 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. 
 
 Mr. Grinnell certifies in writing to the governor that Fielden's 
 
■A KK\IK\V OK rili: AXARCIIIST CASE. 
 
 51 
 
 accusatory warning is " commendable," and in that sentiment Mr. 
 (".rinnell is right. The trial is now going on and the prophecy will 
 be fulfilled. If this man is " more a misguided enthusiast than a 
 criminal," why is he doomed to sjjcnd his life in the ])enitentiary ? 
 
 In his '• commendable " speech, Fielden was not at all timid iu 
 criticising the unfair tactics employed by the jirosecution. It must 
 have surprised Mr. Grinnell to hear so much good law from the 
 lips of an unlettered and ungrammatical teamster. Reading the 
 speeches of the teamster and the state's attorney, it is easy to see 
 that in the art of law the lawyer was far more skillful than the 
 teamster, while in the science of law the teamster was greatly supe- 
 rior to the lawyer. It must have come to the teamster by moral 
 intuition, for he never could have studied the books, that law has 
 its roots deep down in the eternal principles of truth and honesty; 
 and therefore whatever contradicts or opposes these is probably not 
 law. For instance, he thought that the evidence in the case ought 
 to correspond with the allegations, and be confined to the issues 
 made by the plea of not guilty. The attorney thought not. In 
 this difference of opinion the law was with the teamster, and against 
 the lawyer. So again, the teamster thought that the trial ought to 
 be confined closely to the charge in the indictment and not be di- 
 rected to the miscellaneous accusations wandering about the streets. 
 The attorney thought otherwise; and here, also, the teamster had 
 the law, and the lawyer had it not. Again, the teamster thought 
 that a false issue should not be substituted for the true one before 
 the jury. The attorney disagreed with him; and in this dispute 
 likewise, the law was on the side of the teamster. The lawyer's 
 art is literally overpowered by the simplicity of the teamster's as- 
 tonishment at the legerdemain by which one issue was substituted 
 for another. Referring to his indictment for murder, he said: 
 
 I answered that charge in this court. My attorneys in my be- 
 half met that charge; we brought evidence to meet and rebut the 
 charge of murder. After all our evidence w^as 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 con- 
 fronted with the fact that the charge of murder had not been 
 proven. When all the witnesses had been heard I am suddenly 
 told that I am being tried for " anarchy." If I had known that I 
 was /'dug' tried for a/iarr/iv, F could have ansuwred t/iat charge. 
 
 The unconscious irony in that statement cuts like a sword; and 
 
52 THK TKIAI, OF THE JUnCMEXT. 
 
 the legal right of a prisoner to know specificially what he is being 
 tried for is expressed in the last sentence as truthfully as Marshall, 
 Story, or Mansfield could have said it. Further on, addressing 
 Mr. Grinnell personally, the teamster gave him another lesson in 
 good law. He said : 
 
 The duty of a prosecuting attorney is to see to it that no guilty 
 man shall escape if he can possibly prevent it. It is also his duty 
 to see to it that no innocent man shall suffer for any crime. 
 
 Mr. Grinnell may not have got so far as that in his legal studies, 
 but when the teamster spoke those words to him he spoke the law. 
 Still addressing Mr. Grinnell, the teamster said: 
 
 Lawyers have a peculiar code of morals. Their success in their 
 particular avocation depends upon their gaining suits. And I am 
 afraid there are lawyers to be found who care little whether their 
 suit is right or in the interest of justice and truth, so long as they 
 can gain their case and make a reputation for themselves. 
 
 That is part of the speech which Mr. Grinnell told the governor 
 was " decorous, respectful to the law and commendable." It is to 
 be regretted that Fielden cannot return the compliment, for it would 
 be gross flattery to say that Mr. Grinnell's address to the jury was 
 decorous, commendable or even respectful to the law. 
 
 It is a vulgar error that the fantastic tricks played in the courts 
 by lawyers of inferior caste are law. They are not law. They are 
 simply adulterations like sand in sugar, or chalk in milk. In trials 
 of serious moment they may become felonious assaults upon the 
 law, a branch of that social destruction called anarchy. The right 
 of an accused man to be tried by a fair and impartial jury of his 
 peers is as much a part of our system called government as any 
 other feature of it. An infringement of that right by men clothed 
 in judicial ermine is as much a deed of anarchy, an attack upon 
 the government, as is an infringement of the right of property by 
 men clothed in rags. There are practitioners at the bar, well skilled 
 in the mechanism of their jirofession, who are totally innocent of 
 the science of the law. They know the forms of the law, but the 
 spirit of it they have not the moral sense to comprehend. They 
 are like the blacksmith who thinks he must be a veterinary surgeon 
 because he knows how to nail bits of iron upon a horse's feet. 
 There is a curse pronounced in the bible against him " who taketh 
 a reward against the innocent," meaning, no doubt, the lawyer who, 
 
for a fee, prosecutes an innocent man, or defends the wrong side of 
 a cause. 
 
 All is not gokl that glitters; all is not law that punishes. The 
 vindictive sentence of a court, ratified by the chief magistrate, may- 
 be only an official form of anarchy, a trespass on the government. 
 Law is a plan of justice, and even the statutes of the land may be 
 hostile to the law. The Illinois statute of conspiracy is an invasion 
 of the law, a despotic scheme to abolish the great charter of Amer- 
 ican liberty. True, men may be imprisoned by its authority, antl 
 even hanged by the executive strength behind it, but after all, it is 
 not law. It is physical force anarchy. The so-called fugitive slaxe 
 law was misnamed. It should have been called the fugitive sla\e 
 statute. People are now living who remember when the man who 
 would not obey it was not a good citizen. It is now agreed by 
 everybody that the man who did obey it was a bad citizen. Its ad- 
 vt)cates have all passed into obscurity or contempt. When 
 Fielden, the teamster, informed the state's attorney that the consti- 
 tution prohibited restriction of speech or of the press, he gave him 
 a lesson in law for which he ought to be grateful. It was an act of 
 kindness, "decorous and commendable." Although that part of the 
 constitution has been repealed in Illinois, the act of repeal is void. 
 Anarchists may sit upon the Supreme bench, as upon a cobbler's 
 bench. When judges sworn to declare the law give judgment 
 against the law, they are anarchists and their decrees are anarchy. 
 
 THE SUPREME COURT AS PROSECUTOR. 
 
 It would be a " tiresome " task to analyze the opinion of the Su- 
 preme Court, and show its prosecutor style of argument. Everything 
 is taken for granted against the defendants and in favor of the state. 
 The opinion itself is greatly indebted to the prosecutor's brief, both 
 for its diction and its law. A few specimens of it have alreadv 
 been given; a few others may be added; and from those examples 
 the character of the whole opinion may be judged. Be it remem- 
 bered that much of the testimony relied on by the Supreme Court 
 was untrue; much more of it was strongly disputed both by its own 
 inherent improbability, and by good, reliable, and affirmative evi- 
 dence against it. By judicial alchemy, all testimony for the state 
 becomes transmuted into " evidence," and all " evidence " is con- 
 \erted into "proof." By the inverse process, all proof made bv the 
 
-_^ THE TKIAI. Ol- THE JUD(;MEX' 
 
 ilefendants is changed into inferior evidence, and that again into 
 worthless testimony. The burthen of proof is taken from the state 
 and the presumption of innocence from the accused. For example, 
 there was no evidence that Spies had answered the Most letter, yet 
 the Supreme Court assumed the fact conclusively against him. 
 Spies was examined on the question and said that he could not 
 remember whether he had answered it or not. This was probably 
 the truth, for he might have denied positively that the letter was 
 answered. The effect of this testimony, which ought to have counted 
 in favor of the prisoner, was turned against him by the Supreme 
 Court in the following clumsy way: 
 
 He doesn't say that he didn't answer it, but that he doesn't re- 
 member whether he answered it or not. We do not think, however, 
 that it can be regarded as an unanswered letter. To all intents and 
 purposes it was answered. 
 
 A letter found in a prisoner's desk is either an answered letter or 
 it is not. The burthen of proof that it was answered is on the 
 state. The prisoner is not bound to prove the negative. That 
 it was answered " to all intents and purposes " is illegal guess work. 
 When a court relieves a prosecutor from the burthen of proof by 
 such uncertain reasoning, the judges plead the cause instead of judg- 
 ing it, " to all intents and purposes." 
 
 In another place the Supreme Court conclusively assumes that 
 one man must have heard what another one said at a riotous meet- 
 ing where hundreds of men were fighting, and where some of them 
 were killed and wounded by the police. Hear the court: 
 
 He was present on the afternoon of May 3d, 1886, at the at- 
 tack of a mob of strikers upon a manufacturing establishment in the 
 southwest part of the city, and must have heard the address of 
 Spies on that occasion. 
 
 Dubious testimony for the state is given generous welcome by 
 the Supreme Court and treated with high respect, while the most 
 positive proof in favor of the accused is grudgingly admitted, and 
 then with affected misgiving and doubt. For instance, it is entirely 
 undisputed that Engel was not present when the bomb was thrown, 
 a circumstance which tells fearfully against his conviction. This 
 fact is conceded by the Supreme Court in this unwilling way: 
 
 The evidence tends to sho70 that Engel was at his home on 
 
A KEVIKW OK THE ANARCHIST CASE. 
 
 55 
 
 Milwaukee avenue, near the Havmarket, when the explosion oc- 
 curred. 
 
 There was no " tends to show " about it; the evidence did show 
 it, and there was no ])retense to the contrary. Worse yet, an ob- 
 scure sentence is framed by the court to cover an unfair insinuation 
 of guilt, or at least of proximity to it. It is unworthy a high tri- 
 bunal to palter with phrases of double meaning. Does the court mean 
 that Engel's home was near the Haymarket, or that Milwaukee 
 avenue is near the Haymarket? An important matter, because one 
 end of Milwaukee avenue is only a few blocks from the Haymarket, 
 while the other end of it is three or four miles away. Why was the 
 ])hrase "near the Haymarket" v/edged into that part of the opinion? 
 It must have been to implicate Engel by a suggestion of his prox- 
 imitv to the tragedy. It is in suspicious contrast that ''the proof 
 slunus'' is a phrase never used to describe the case for the defend- 
 ants. Wherever it occurs it is descriptive of testimony favorable to 
 the state. 
 
 Engel's home was actually a mile from the Haymarket, and he 
 was sitting there drinking beer in a social way with friends when the 
 bomb was thrown. What matter? Evidence put to the torture will 
 give any answer desired. Presence and absence stretched on the 
 rack by the Supreme Court of Illinois both answer, guilty. Parsons 
 was hanged for being present, and Engel for being absent. Provoked 
 by the perverse fact of Engel's absence, the court, instead of credit- 
 ing him with it, debits it against him thus: 
 
 That some of the conspirators might be at home when the col- 
 lision with the police should happen was a contingency that was 
 provided for by the terms of the plot; in the event of a collision at 
 night a committee appointed to watch the movement was to report 
 to the armed men at their homes. 
 
 With discreditable obstinacy the facts refuse to agree with that 
 unreal speculation. Nothing of the sort followed; and as for Engel, 
 the witness for the state against him acknowledged that when he 
 heard of the throwing of the bomb he said, "The man who threw it 
 did a very foolish thing," and advised his friends and the informer 
 also to go home. 
 
 The habit of paltering in a double sense grows upon the court. 
 It is mere cunning, not intellect. It argues by hint and innuendo. 
 
THE TRIAL OF THE JIDCMEXT, 
 
 as in the plea against Xeebe, making iiim directly responsible for 
 the Arbeiter Zsitung; the court says: 
 
 This paper was owned by a corporation in which Spies, Schwab, 
 Fischer and Neebe were stockholders. 
 
 The corporation was the Socialistic Publishing Company, and 
 the statement of the court, while literally exact, is pregnant with a 
 hint that Neebe was directly the owner of the Arbeiter Zeitung, and 
 .a stockholder in the usual meaning of the word; whereas, he was 
 only remotely a stockholder by reason of membership with hun- 
 dreds of others in the Socialistic Publishing Company. Neebe held 
 stock in the " corporation " to the amount of five dollars, as all the 
 other members did. Thus the statement of the court, while literally 
 true, makes a false impression. A little further on the disguise is 
 thrown off altogether, and the insinuation against Neebe becomes a 
 positive accusation, thus: 
 
 Neebe was one of the stockholders of the Arbeiter Zeitung. 
 
 Conceding the suggestion to be fact, a stockholder in a newspa- 
 per is not criminally liable for its articles. The Supreme Court 
 was curiously wrong in supposing that the fact of owning stock in a 
 newspaper is valuable evidence against a man accused of murder. 
 
 Important issues in dispute are coolly decided against the pris- 
 oners on " the weight of evidence," as if the whole business were a 
 civil suit for twenty dollars or so, instead of the trial of eight men 
 for murder. Says the court: 
 
 The weight of evidence is in favor of the conclusion that Degan 
 was killed by some member of the International Association. 
 
 And in another place the court remarks: 
 
 We think the weight of evidence is in favor of the state upon 
 this subject. 
 
 All that apologetic plea for '• the weight of evidence" is lawyer's 
 jargon unauthorized by the rules of evidence in capital cases. In a 
 matter of life or death the weight of evidence on all material issues 
 should be heavy enough to amount to moral certainty in favor of 
 the state, otherwise the benefit of the doubt should be given to the 
 defendant. The truth is that the scales used by the Supreme Court 
 for weighing the evidence were lop-sided and partial; the result was 
 a wrcmg that never can be righted in this world. 
 
 There is no cohesion or affinity between the numerous impossi- 
 
A RF.VIKW OF THK ANARCinST CASK. ^j 
 
 ble " conspiracies," imagined by the Supreme Court; nor is there 
 any logical connection between their several j)ar(s. Imoui tlie be- 
 ginning to the end of the record that changeable conspiracy on 
 which the scaffold rested never appears in an\- legal shai)e that may 
 be identified; and whenever for a moment it seems to take visible 
 form, it instantly vanishes again, because it will not fit the evidence 
 made for it. The Supreme Court is continually dropping one con- 
 spiracy and picking uj) another, then dropping that and picking it 
 up again. After laboring through pages of argument to show a con- 
 spiracy growing out of the separate actions of eight men for sixteen 
 months of their lives, the court abandons it. and picks up the brand 
 new conspiracy of May 3d, and when that also refuses to corres- 
 pond with the catastrophe, the court absurdly lays the blame upcMi 
 the defendants, who were too perverse to carry out the conspiracy 
 invented for them by the Supreme Court. Compelled to admit this 
 disagreement, the court is reduced to the extremity of explaining it 
 thus; 
 
 Special action of the authorities may have operated to change 
 the original conspiracy. 
 
 So the original conspiracy was changed, and a secondary affair 
 substituted for it, of which no definite specifications have ever been 
 set forth. As the crime of murder could not be brought home to 
 any of the defendants, the humiliating confession is made at last 
 that they were hanged for anarchy; or, in the funnv language of the 
 Supreme Court, for their "queer doctrines." The court itself often 
 loses the murder, and forgets all about it in its gratuitous reproba- 
 tion of anarchy. No wonder that thousands of people in Illinois 
 believe that anarchy was the crime charged in the indictment. The 
 false and misleading issues raised by the indictment in order to 
 bring men to the scaffoUl were truthfully described by Lyman Trum- 
 bull, a lawyer and statesman of national fame, a man by no means 
 partial to the anarchists or their j)rinciples. He 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 kno7vn as anarch- 
 ists, rather than of persons indicted for the murder of Began. Sev- 
 
58 
 
 THE TRIAL OF THE JUDGMENT. 
 
 eral 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. 
 
 Some abstract principles relating to conspiracy and some general 
 doctrine concerning accessories, are correctly stated by the Supreme 
 Court, but this is a familiar artifice common at the bar. Advocates 
 get along with it finely until some logical judge requires them to fit 
 the axioms to the case on trial. Then they fail, as the Supreme 
 Court of Illinois fails to make its law fit the facts in the anarchist 
 case. That accessories to a crime are equally guilty with the prin- 
 cipal may be good law, but it does not follow that all the princi- 
 pal's cousins are accessories with him because of consanguinity, nor 
 that men are accomplices with him because they belong to the same 
 lodge, church or association. Yet this was the fallacy of the court. 
 Evidence that would never have been allowed to prove men part- 
 ners in a fifty-dollar contract was held competent to prove them 
 partners in the crime of murder. 
 
 THE REPEAT. OF THE CONSTITUT[ON. 
 
 English history is blurred with tales of political persecutions dig- 
 nified as trials for treason, murder, and conspiracy to murder. The 
 judgment of posterity upon them is that those trials themselves were 
 judicial and executive conspiracies to murder the defendants. Rarely 
 now do historians speak of the execution of Algernon Sidney. They 
 tell of his " murder." So they tell us about the murder of Russell, 
 of Raleigh, of More, and Alice Lyle, yet those murders were all 
 done by the government; judges gave the law, and juries gave the 
 verdicts against the defendants in every case. Shall we ha\e in the 
 United States a parallel history? It is very significant that the 
 charge of murder against the anarchists was abandoned the very mo- 
 ment the drop fell on the nth of November. The false expedient 
 had served its purpose and was then dropped. Even the very 
 newspapers that flogged the passions of the people up to madness 
 never speak of the anarchists as murderers, nor of their crime as 
 murder. They always speak of the men as anarchists, and of their 
 crime as anarchy. There is method in this, because death for an- 
 archy contains more warning in it than death for murder. It strikes 
 more terror to the multitude. It is more novel and picturesque; 
 more comprehensive, too, because a mere strike for more wages and 
 
A REVIEW OF THE ANARCHIST CASE. 
 
 59 
 
 less hours, a meeting, a picnic, a procession, a trades union, a pub- 
 lic speech, or a private conversation, may each and all be anarchy 
 according to the i)recedent set 1)\' the Sui)renie Court of Illinois. 
 Nobody coniplinietits the go\'ernor, the Supreme Court, Judge 
 Gary, or Mr. Crinuell for hanging men for murder. There is no 
 special merit in that. They are praised because they strangled men 
 to death for anarchy. The public flatteries and rewards are be- 
 stowetl upon them because of the popular belief that those magis- 
 trates, in their zeal to stamp out anarchy, trampled on the law, and 
 violated the national constitution and the constitution of the state. 
 It is not for upholding the law, but for overthrowing it, that the 
 popular applause is given. 
 
 It is a bad precedent, the beginning of "coercion" for Illinois. 
 It is the old muzzle, borrowed from the antiquities of Europe, and 
 placed on lips and tvjje in Chicago. It has already demoralized 
 our officials and imi)osed upon them the duty of tyranny. The 
 mayor of Chicago, when he repealed the constitution of the Ignited 
 States, and suspended the bill of rights, was merely obeying the 
 wishes of his constituents. When he abridged the freedom of speech, 
 when he "proclaimed" certain districts, when he proscribed certain 
 music, when he tied up public meetings, was not exercising personal 
 despotism, for which probably he has no taste. He was only en- 
 forcing the despotic will of the '• classes " against the "masses " of 
 Chicago. When he limited the freedom of the people called anarchists, 
 communists, and socialists, he was only yielding to the dictation of 
 those who elected him to office. Indeed, if he had outlawed them 
 as the clan McGregor was outlawed in the olden time, his action 
 would have been sustained. 
 
 Only last spring the mayor of Chicago and the governor of Illi- 
 nois denounced from the same platform the " coercion " policy of 
 Great Britain. Before the end of the year they had become the 
 chief coercionists of America. This is sometimes called the " irony 
 of fate," but they are only the victims of popular unreason, not its 
 authors. The coercion policy which takes away from the people 
 the right of speaking, printing and meeting, is a feeble security for 
 public order; because when the people feel that the law is for their 
 correction, and not for their protection, they will not protect the law. 
 When they see their magistrates dishonor the law, they will evade 
 it if they can. The history of Europe shows that resistance to 
 
6o THE TRIAL OF THE JLTXIMENT. 
 
 government restraint and political discipline has generally been 
 greater than the act resisted. The square of the coercion expresses 
 the quantity of resistance to it. We may plug up Vesuvius, but the 
 pent up fires will split the earth open somewhere else. When the 
 mayor of Chicago dictated what music should be played, and what 
 should not be played at the funeral of the anarchists, he was 
 answered by a song of defiance right from the coffin of Parsons. 
 When the procession turned into Fifth avenue, and came within 
 hearing of the City Hall, the band marching behind the hearse 
 struck up " Annie Laurie," the song that Parsons sung in the con- 
 demned cell the night before his death. It rang through the coim- 
 cil chamber, and mocked the feeble, foolish '' proclamation " of 
 the mayor. It recalled to memory the taunting menace of 1859 : 
 
 And old Brown; Osowattomie Brown, 
 
 Will trouble you more than ever, 
 When you've nailed his coffin down. 
 
 When the mayor forbade the tune he exceeded his authority; 
 he overstepped the law. And when he failed to enforce his order, 
 his office lost dignity to the extent of the disobedience to his decree. 
 He should not have made any order except a legal order, and that 
 he should have enforced at all hazards. 
 
 When the judges of England held their offices at the pleasure of 
 the king, they declared the law, not as it was, but as their master 
 wanted it to be. When prosecuting attorneys aspired to the bench 
 they earned promotion by falsifying the law to please the sovereign. 
 By " mean arts " and illegal devices they sent political enemies to 
 the scaffold and to prison. The judges are free in England now, 
 and the law can no longer be perverted to the uses of the crown. 
 In the United States the judges hold their offices at the pleasure of 
 the sovereign people, and those judges must declare the law, not as 
 it is. but as their master wills it. When King Populus is in the 
 humor he can be as bigoted, irrational and despotic as any King 
 Henry, King James, or King George. When King Populus gets 
 drunk his judicial servants must make the law drunk too. When he 
 demands a bloody sacrifice they must provide the \ictims. He can 
 exact illegal judgments from his courts of law with as much intoler- 
 ance as any king of England ever did. So, too, he wraps comfort- 
 able robes of ermine around the law officers who pervert the law to 
 gratify his rage. How interesting the resemblance between the 
 
A REVIEW OF THE AXARCIIIST CASE. 6l 
 
 judical appointments of King James, two hundred years ago, and 
 the appointments of King Populus to-day! Already Judge Gary has 
 been rewarded with another term of office, and Mr. Grinnell has been 
 promoted to the bench. The judges of the Supreme Court will be 
 re-elected also, if the election comes on soon; if late, King Populus 
 may be sober and they may receive reprimand instead of robes, as 
 Hubert received reproaches from King John for doing the very deed 
 that the king bribed and commanded him to do. Populus is a fickle 
 king, and he has qualms of conscience too, as other kings have had. 
 Let the ministers to his wrath claim a quick reward or they may lose 
 it altogether. 
 
 THE SWIFT VERDICT. 
 
 The swift and eager verdict of the jury in the anarchist case 
 justifies all the censure which has been cast upon the trial. They 
 were out only three hours altogether, and most of that time was 
 occupied in fixing the punishment of Neebe. The trial had lasted 
 eight weeks, the indictment contained sixty-nine counts; there were 
 eight men on trial; the evidence amounted to volumes of all sorts 
 of testimony, some of it applying to one of the prisoners, some of it to 
 another, some of it to two or three of them, and scarcely any of it 
 to all of them. The instructions of the court were numerous and in- 
 tricate, requiring careful discrimination in the reading of them; and 
 the offense charged was murder, committed by the explosion of a 
 bomb which it was conceded none of the defendants threw. It is 
 hardly possible that the jury could have read the instructions at all, 
 certainly they could not have compared them with the testimony. 
 They could hardly have read the indictment in three hours, and 
 they could not have reconciled its contradictory counts in three 
 years. They certainly never attempted to separate the evidence 
 against one from the evidence against the others. They simply 
 applied the whole of it to each of the defendants and found them 
 all guilty of murder in the first degree. It was the easiest thing to 
 do, for their brains were all rumpled and disordered by the mys- 
 teries of collateral guilt and clairvoyant combination to kill. 
 
 Perhaps also the jury thought that whatever might be wrong in 
 the verdict would be corrected by more learned men than they. 
 They had a right to think so, because the state's attorney had said 
 to them that from their verdict the defendants could appeal to 
 
62 THE TRIAL OF THE JUDGMENT. 
 
 higher authority for a new trial. Before the Supreme Court he 
 turned another somersault and begged for an affirmation of the 
 judgment on the ignoble ground that a second conviction could not 
 be obtained. 
 
 ACCESSORIES PRESUMPTIVE. 
 
 The theory of anarchy and the scheme of socialism, whether 
 good or evil, can have no place in a trial for murder except to cre- 
 ate prejudice in the jury, yet the Supreme Court of Illinois held 
 that, 
 
 Whether or not the defendants were anarchists may have been 
 a circumstance to be considered in connection with all the other 
 circumstances in the case, with a view of showing what connection. 
 if any, they had with the conspiracy, and what were their purposes 
 in joining it. 
 
 But is this law ? 
 
 Aye, marry is't; crowner's quest law. 
 
 It is the same fantastic doctrine that was proclaimed in the Guy 
 Fawkes case nearly 300 years ago, where it was held presumptive 
 evidence of guilt that a man was a Roman catholic priest, and 
 father confessor to some of the conspirators. He must, therefore, 
 have been an accessory before the fact, and a party to the gun- 
 powder plot. It was mob law for ages that every ]e\v -wzs particeps 
 crimiiiis in the crucifixion of Christ, as an accessory after the 
 fact. 
 
 In like manner the court held that prejudice against communists 
 and socialists would not disqualify a citizen from serving on a jury 
 to try a socialist for murder. Absolutely that is good law; but if the 
 fact that a man is a socialist may be given in evidence against him 
 on a trial for murder, then the prejudice of the juror attaches to the 
 defendant personally, and the juror is not impartial. Says the 
 court: 
 
 The socialist or communist, if he attempted to put into oi)era- 
 tion his queer principles of property, would destroy individual 
 rights in property. Practically considered, the idea of taking a 
 man's property from him without his consent for the purpose- of 
 putting it into a common fund for the benefit of the community at 
 large involves the commission of theft and robbery. 
 
A RFA'IF.W ol' ■III!-; ANARCIII^l' CASE. 
 
 (>z 
 
 That strain of moralizing sliows the anintiis of the court. It 
 proves that the judges, like the jury, were prejudiced against the de- 
 fendants, antl that the accused men couhl not have an impartial 
 appeal in the court above, nor a fair trial in the court below. If 
 the defendants had ''queer" principles of property, the Supreme 
 Court had " queer " principles of law. 
 
 If the rulings of the court in the anarchist case were healthy 
 morals and good law, why was the legislature called upon to cure 
 the judgment by an ex post facto act of absolution? If those 
 ruUngs 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 '•' conspiracy " law adopted at all, except as an underpinning 
 for the court, while obsequious lawyers were trying to lift the decis- 
 ion up to grade ? Statute and decision arealike illegal, hostile to 
 liberty, savage in penalties, and beneath the dignity of the state. 
 Some day the people of Illinois will call upon the hills to fall upon 
 the decision in the anarchist case and upon the mountains to cover 
 the conspiracy law. 
 
 A PARALLEL AND CONTRAST. 
 
 An opinion is prevalent in Illinois that Parsons was hanged for 
 obstinacy; that he defied the commonwealth, and scorned to beg 
 for his life, therefore the proud state strangled him in its rage. It 
 is claimed that under the law the governor could not reprieve him 
 until he begged for mercy and a commutation of the sentence. 
 This mistake has been petted by the newspapers in order to lighten 
 the guilt of the November tragedy, and transfer the sin of this 
 man's death from the governor to the victim. The excuse is false 
 and ignominious. When the attorneys and friends of Parsons 
 asked for his life, the law was complied with in the letter and the 
 spirit. Whether or not, even if Parsons, madly eager for a martyr's 
 crown, became a party to his own death, the state of Illinois had 
 no right to become a party to it also. 
 
 A man may not lawfully commit suicide, neither can he make a 
 present of his life to the state: and should he tender the gift, the 
 commonwealth must not accept it. This is religion; and there 
 is law for it also. Once upon a time a man was to be tried in New- 
 York for murder, and through some accident or other only eleven 
 
64 THE TRIAL OF THE JUDGMENT. 
 
 men were in the jury box. ''What matter?" said the prisoner. 
 " Surely eleven men can try the cause as well as twelve." There- 
 upon an agreement was made between the prisoner and the state's 
 attorney that the case be tried by a jury of eleven men. This 
 agreement was entered on the record and the trial began. The de- 
 fendant was convicted, and sentenced to death. His counsel ap- 
 pealed the case and assigned for error that he had not been legally 
 convicted, because his jury consisted of less than twelve men. It 
 was exultingly answered by the state's attorney that the prisoner's 
 own consent to be tried by a jury of eleven men was part of the 
 record in the case. The court of appeals replied that the consent 
 was void; that the prisoner had no power to make such a bargain 
 with the state, nor the state with him. The judgment was reversed, 
 although the proof of guilt was clear. The Supreme Court of Illi- 
 nois would have said that the appellant must show that he was 
 "harmed" by the verdict; but the New York tribunal correctly de- 
 cided that it was enough to show that the jury was imperfect. 
 The commonwealth of New York was too humane to accept the 
 foolish forfeit of a man's life, and too great to foreclose a mortgage 
 on it, though freely signed and sealed. The defiance uttered by 
 Parsons was delirium. It ought to have been answered by charity, 
 and not by vengeance. 
 
 When the vote-mongering season comes, the governor of Illinois, 
 like a mechanical phonograph, articulates a stump speech to an 
 influential " element " denouncing the vindictive punishment by 
 England of political offenders in Ireland. The crowd, amusing him 
 with cheers, regards him as a mere automaton, knowing little of 
 the Irish question, and caring no more about it than any other talk- 
 in"- machine. Behold a curious historic parallel and contrast be- 
 tween the government of England and the government of Illinois. 
 In 1848 Mr. William Smith O'Brien, a member of the English parli- 
 ament, organized an insurrection in Ireland, and actually com- 
 manded the insurgent forces in an attack upon the barracks 
 occupied by the police. Although some of the police were killed, 
 the insurgents were defeated. Mr. O'Brien was tried, convicted and 
 sentenced to death. His friends made intercession for him, and 
 begged the government to commute his sentence to imprisonment 
 for life. Mr. O'Brien wrote a letter to the secretary of state repu- 
 diating this appeal for clemency. He insisted that it would be 
 
A REVIEW OF THE ANARCHIST CASE. 
 
 65 
 
 illegal to commute the sentence and that the government had no 
 alternative between hanging and absolute pardon. He positively 
 refused to accept a reprieve, and he scorned the English power. 
 Parsons acted in the same way. The government of Illinois took 
 him at his word and hanged him. Tlie government of l^ngland 
 was too magnanimous to take Smith O'Brien at his word. His sen- 
 tence was commuted in spite of him; he was sent to New South 
 Wales, where he was released on his parole, and in a few years par- 
 doned. The contrast between the two governments in those par- 
 allel cases is the humiliation of Illinois, and the shame of the gov- 
 ernor. What is said about Parsons here will apply very nearly to 
 Engel, Fischer and Spies; and remember that in the O'Brien case 
 the prisoner deliberately marched his followers to the police station 
 and opened fire upon the police. The police did not march to him, 
 as they marched up to the meeting at the Haymarket and com- 
 manded it in a hostile manner to disperse. 
 
 THE LORD LIEUTEN.\NT AXl) THE MAYOR. 
 
 A comic twinship was that of the governor and the mayor making 
 anti-coercion speeches at Battery " D " last May. Moved by coun- 
 terfeit anger, they condemned force as an agent of government — in 
 Ireland — but not in Illinois. With deep mock feeling the mayor 
 exclaimed: "Force cannot endure against the liberty-loving in- 
 stincts of an earnest and united people." In theatrical recitation 
 he condemned what he called the " atrocious bill " for the preserva- 
 tion of " law and order " in Ireland. He did not know it at the 
 time but his denunciations fell more justly and more heavily upon 
 himself than upon ""^^ord Salisbury. He condemned himself as 
 follows : 
 
 The act gives the lord lieutenant authority to proclaim any 
 district and suppress any association which he thinks disloyal to the 
 government, and to direct all in such district to be searched, and 
 thus effect a genera^ disarmament of the Irish people. Nor is this 
 all. The bill provides for a special jury, which, in this case, may 
 mean one packed for the government. 
 
 In the practice of coercion there is little difference between the 
 lord lieutenant of Ireland and the lord lieutenant of Chicago, as 
 the following arbitrary order will show; 
 
66 THE TRIAL OF THE JUDGMENT. 
 
 Chicago. 111.. Nov. 12, 1887. 
 
 Frederick Ebersoht, Stiperintendent of Police : 
 
 You will issue a permit worded as follows to the committee 
 whose application is enclosed : 
 
 Permission is hereby given to the families and friends of August 
 Spies, A. R. Parsons, Adolph Fischer, George Engel and Louis 
 Lingg, to conduct a funeral Sunday, Nov. 13, between the hours of 
 12 and 2 o'clock, p. m., on the following conditions: 
 
 The bodies are to be taken from the respective homes directly 
 to the place of burial, the families and friends of deceased forming 
 a line on Milwaukee avenue, commencing near Bryson street, and 
 the procession moving on ISIilwaukee avenue to Desplaines street, 
 Desplaines to Lake street, Lake to Fifth avenue, and Fifth avenue 
 to the depot of the Wisconsin Central Railway company at Polk 
 street. 
 
 The carrying or displaying of banners is prohibited, no speeches 
 are to be made and no concealed weapons or arms shall be carried 
 in the procession; nor shall any demonstration of a public character 
 be made except to conduct the funeral in a quiet and orderly man- 
 ner. The music, if any, to be dirges only. 
 
 This permit is issued subject to the statute law of the state of 
 Illinois and the laws and ordinances of the city of Chicago, and the 
 procession will be at all times subject to police regulations. 
 
 John A. Roche, Mayor. 
 
 It might be difficult to prove that this harsh proclamation was in 
 accordance with the statute law of Illinois, and the laws and ordi- 
 nances of Chicago; but if it was, the fact would only show that the 
 proposed coercion law for Ireland which the mayor' so dramatically 
 stigmatised in May, was at that very time the law of the state of 
 Illinois and the city of Chicago. The mayor "proclaimed" certain 
 streets of the city, and he forbade the carrying of banners. He 
 " disarmed " the people and prohibited speeches. Like a French 
 emperor he proscribed certain hymns and songs, which the lord 
 lieutenant of Ireland would hardly dare to do. The mayor of 
 Chicago pretended to be sensitive that the lord lieutenant of Ire- 
 land should be empowered to suppress associations which he 
 thought were disloyal to the government, and to direct searches to 
 be made in the proclaimed districts. Has not the mayor of 
 Chicago done those very same things ? Has he not suppressed 
 associations ? And has he not, through his police, searched houses 
 without any lawful warrant whatever ? As for the "special jury" 
 wickedness, what sort of a jury did the anarchists have ? Was not 
 that a s])ccial jury ? And was it not ])acked for the government? 
 
A REVIEW OK THE ANARCIIIST CASE. 67 
 
 'Flic mayor sIkuvccI a '^neat deal of stage grief over the '" rackrent- 
 ing " in Ireland, forgetting that there is more rackrenting done in 
 Chicago in six months than is done in Ireland in six: years. Such 
 leases as are every day enforced by scores in Illinois, the British 
 government would not allow to be enforced in Ireland. There arc 
 more " rackrenting " e\ictions e\'ery \'ear in Illinois, yes, more of 
 them in the single mayoralty of Chicago, than in the whole king- 
 dom of Ireland, for the same period of time. 
 
 THF, AI r-IDAVll' (11' OTIS FAVOR. 
 
 Here is the aftidavit of Otis Favor, as it was presented to the 
 governor on the 9th day of November, 1887. It remains uncontra- 
 dicted : 
 
 State of Illinois, I 
 
 Cook Cotntv. \ ^^' 
 Otis S. Favor, being duly sworn on oath, says that he is a citizen 
 of the United States and of the state of Illinois, residing in Chi- 
 cago, and a merchant doing business at Nos. 6 and 8 Wabash avenue, 
 in the city of Chicago, in said county. That he is very well ac- 
 quainted with Henry I>. Ryce, of Cook county, Illinois, who acted 
 as a special bailiff in summoning jurors in the case of The People, 
 etc., vs. Spies et al., indictment for murder, tried in the Criminal 
 Court of Cook county in the summer of 1886. That afifiant was 
 himself summoned by said Ryce for a juror in said cause, but was 
 challenged and excused therein because of his prejudice. That on 
 several occasions in conversation between affiant and said Ryce 
 touching the summoning of the jurors by said Ryce, and while said 
 Ryce was so acting as special bailiff as aforesaid, said Ryce said 
 to this affiant and to other persons in affiant's presence, in substance 
 and effect as follows, to-wit : " I " (meaning said Ryce) " am man- 
 aging this case " (meaning this case against Spies etal.), " and know 
 w^hat I am about. Those fellows " (meaning the defendants. Spies, 
 et al. ), " are going 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." That affiant has been very reluc- 
 tant to make any affidavit in this case, having no sympathy with 
 anarchy nor relationship to or personal interest in the defendants or 
 any of them, and not being a socialist, communist, or anarchist; 
 but affiant has an interest as a citizen in the due administration of 
 the law, and that no injustice should be done under judicial pro- 
 cedure, and believes that jurors should not be selected with refer- 
 ence to their known views or i)rejudice. Affiant further says that 
 his personal relations with said Ryce were at said time, and for 
 
68 THE TRIAL OK THE JUDliMEXT. 
 
 many years theretofore had been most friendly and even intimate, 
 and that affiant is not prompted by any ill will toward anyone in 
 making this affidavit, but solely by a sense of duty and a conviction 
 of what is due to justice. 
 
 Affiant further says that about the beginning of October, 1886, 
 when the motion for a new trial was being argued in said cases be- 
 fore Judge Gary, and when, as he was informed, application was 
 made before Judge Gary for leave to examine affiant in open court 
 touching thematters abovestated, this affiant wentupon request from 
 State's Attorney Grinnell to his office during the noon recess of the 
 court, and there held an interview with said Grinnell, Mr. Ingham, 
 and said Ryce, in the presence of several other persons, including 
 some police officers, where affiant repeated substantially thematters 
 above stated, and the said Ryce did not deny affiant's statements, 
 and affiant said he would have to testify thereto if summoned 
 as a witness, but had refused to make an affidavit thereto, <?/;(/ rt'^"^?/;/ 
 7vas then and there asked and iir^^ed to persist in his refusal and to 
 fnake no affidavit. And further affiant saith not. 
 
 Otis S. Favor. 
 Subscribed and sworn to before me this 7th day of November, 
 A. D., 1887. Julius Stern, 
 
 Notary Public in and for said county. 
 
 The significance of the above statement lies in the latter part of 
 it, where after giving his reasons for declining to appear in court 
 during the argument of the motion for a new trial, and his reasons 
 for refusing to make an affidavit at that time, Mr. Favor says that 
 he went to Mr. Grinnell's office at the request of Mr. Grinnell, and 
 was "asked and urged to persist in his refusal, and to make no affi- 
 davit." This, in the presence of Mr. Grinnell, Mr. Ingham, his as- 
 sistant in the prosecution, and Mr. Ryce, the bailiff who summoned 
 the jury. This is evidence that the state's attorney adopted and 
 endorsed the illegal action of the bailiff. It is evidence that the 
 prosecuting attorneys were accessories after the fact to the suspicious 
 making of the jury; and it raises a presumption that they were ac- 
 cessories before the fact also. On weaker testimony men were 
 hanged as accessories to the throwing of the bomb. 
 
 FREE SPEECH AND CONSEQUENTIAL MURDER. 
 
 The crime of consequential murder constructed out of turbulent 
 rant and political bombast is out of harmony with American law. The 
 genius of it is a vicious and dangerous principle expelled from Eng- 
 land many years ago. Let it ])revail in America, and liberty of 
 
A REVIEW OF THE ANARCHIST CASE. 
 
 69 
 
 speech is gone. No man will dare to advocate a change in the law 
 lest a policeman be killed in a riot, and some law-spider sjMn a 
 thread connecting the riot with the speech. According to the Illi- 
 nois doctrine, a thousand citizens of Chicago might have been in- 
 cluded in the anarchist indictment and all of them found guilty. At 
 the great eight-hour meeting held at Battery D, a few days before 
 the bomb throwing, at which meeting it is claimed 25,000 working- 
 men were present, the most impassioned and the most inflammable 
 speech was made by a Baptist clergyman of great prominence in 
 the city. No other speech that night excited the multitude to such 
 frenzy as the stimulant administered by that clergyman. Who shall 
 dare to say what influence it had in maddening the savage who threw 
 the bomb ? Had this minister been included in the multifarious in- 
 dictment, he must have been convicted under the rulings of the 
 court. This, although any person who heard him could see that while 
 he aroused the passions of the crowd by eloquent expressions of 
 sympathy, his desire was to direct their minds away from violent 
 plans of change to moral and religious methods of reform. 
 
 A free people who elect their own magistrates at stated intervals 
 are exposed to periodical returns of political excitement. In these 
 periods the advocates of change are necessarily violent in their ora- 
 tory; but their criticisms are not taken literally as menaces to par- 
 ticular men or classes of men, even though fools inflamed by 
 the speeches commit violence. In the last congress, a member of 
 the house of representatives from Chicago denounced a pri- 
 vate citizen by name, and advised that he be hanged. A few Sun- 
 days ago, a Chicago clergyman, incensed because a parishioner had 
 been shot down in the street, suggested a lamp-post for the assassin. 
 In like manner a Chicago paper, the most irrational in its appeal 
 for vengeance on the anarchists, commenting on a railroad accident 
 which had resulted from carelessness, recommended the summary 
 hanging of the railroad officers. Suppose that the advice of the 
 congressman, the editor and the clergyman had been followed, then 
 under the Illinois doctrine, those men would all be guilty of con- 
 structive murder, and liable to the punishment of death. The whole 
 principle is without any sense or moral vitality. It grins on the 
 Supreme bench like the skull of a dead man. In the name of jus- 
 tice let it be taken out and buried. 
 
 Shortly before the Haymarket affair, the chaplain of the house 
 
70 THE TRIAL OF THE JUDGMENT. 
 
 of representatives prayed before congress like an angry prophet, 
 and invoked the vengeance of the Lord upon a people guilty of so- 
 cial inequality and wrong. Like a prophet he seemed to have 
 a vision of the coming 4th of May. It was not Nineveh he 
 was threatening or bewailing, but the United States of America 
 rushing madly into what he called " a reign of terror." He ap- 
 peared grateful for the newly-discovered agent which was to equal- 
 ize conditions, and "lighted the fuse " in the following style : 
 
 For long the few have mastered the many, because they under- 
 stood the open secret, the tools to those who can use them; now 
 the many have learned the secret of organization, drill and dxuaniitc. 
 
 The anarchist prayer was official; it was paid for out of the pub- 
 lic treasury and offered up in the capitol. Does that make the 
 congress that heard the prayer and paid for it an anarchist associa- 
 tion ? If not, why not ? Does the prayer itself make the Rev. Mr. 
 Milburn legally or morally responsible for the Haymarket riot ? Cer- 
 tainly not, and yet, if he had made the prayer in Chicago he could 
 have been hanged for it. He might have been hanged for 
 it anyhow if Mr. Grinnell had given the matter a thought, 
 for if Spies could be put to death for what he said in 
 Michigan, it was inexcusable carelessness on the part of Mr. Grin- 
 nell not to hang Mr. Milburn for what he said at Washington. Not 
 only was Mr. Milburn not hanged for praying in behalf of dynamite, 
 he was actually rewarded for it. He was re-elected to his com- 
 fortable office, and is chaplain of the house of representatives to-day. 
 
 JEFFERSON AND P.\RSONS. 
 
 Had the Illinois rulings been good law in Jefferson's time, he 
 might have been hanged at any period of his active political career. 
 He was an anarchist; not an amateur speculative anarchist, but a 
 physical force anarchist, and an avowed enemy of government. 
 His biographers have tried to explain away the " no government " 
 theory of Jefferson, but that he cherished and advocated the theory 
 cannot be denied. The following quotation is not from the Arbritcr 
 Zci/ieng nor the Alarm ; it is from Jefferson's letter excusing the 
 Massachusetts rebellion; not the rebellion against Great Britain, 
 but the rebellion against the LTnited States: 
 
 God forbid we should ever be twenty years without such a 
 rebellion. * * * What country can preserve its liberties if its 
 
A Ki:\ii:\\ < )i riii; anakc in 
 
 71 
 
 rulers are not warned from time to time that lliis people preserve 
 the spirit of resistence ? Let them take arms. What signify a few- 
 lives lost in a centur\- or two? The tree of libertv must be re- 
 freshed from time to time b\' the blood of patriots and tyrants. 
 It is its natural manure. 
 
 Did Fielden, Parsons, or Spies utter anything more sanguinarv 
 than that, or anything more anarchical than this: 
 
 I am convinced that those societies which live without govern- 
 ment enjoy in their general mass an infinitely greater degree of 
 happiness than those w^ho live under the European governments. 
 Among the former, public opinion is in the place of law restraining 
 morals as powerfully as laws ever did anywhere. Societies exist in 
 three forms: 
 
 1. Without governments. 
 
 2. Under governments wherein ever\- cme has a just influence. 
 
 3. Under governments of force. 
 
 It is a problem not clear in my mind that the first condition is 
 not the best. 
 
 The question is not whether those opinions were wise or foolish, 
 wicked or charitable, but had Mr. Jefferson the right to express 
 them ? And having expressed them, could he have been hanged 
 because riots followed them in which "the tree of liberty" was 
 " refreshed with the blood " of some policeman, or other agent of 
 the government ? 
 
 Whether preached by Jefferson or Parsons, faith in the efficacy 
 of blood as a political redeemer in America is a barbarous belief. 
 In a country wdiere every man is armed with the ballot, moral force 
 is t^he only agent which will ever achieve anything that is worthy to 
 be done. To this the anarchist agitators reply that the ballot is en- 
 slaved in the hands of slaves. They say that the working men are 
 under the control of capital; that they are not free to use the bal- 
 lot; and even if absolutely free they are neither intelligent enough. 
 nor virtuous enough to use the ballot well. If so, is it possible that 
 they can use wisely or beneficently the sword, the musket, or the 
 bomb ? In advocating anarchy, Jefferson and Parsons may both 
 have been wrong, but the expression of political opinion was free 
 in Jefferson's time, and it ought to be free now. 
 
 As a political expedient the gallows is as barbarous as the bomb, 
 especially when it is made the instrument of retaliation and re- 
 venge. The hanging of the anarchists was the most criminal 
 ])olitical blunder ever perpetrated in Illinois. ^^'hen the state 
 
72 THE TRIAL OF THE JUDGMENT. 
 
 refused to hang Schwab and Fielden it gained an important moral 
 victory over them. When it strangled Spies and Parsons it suffered 
 an ignominious defeat. Government and society are more afraid 
 of Spies and Parsons dead, than of Schwab and Fielden living. It 
 is not wise to suffocate the law and drag the courts down to the 
 level of anarchy. Instead of sending the American constitution to 
 the Pope the president should have sent a copy of it to Springfield, 
 Illinois. 
 
 The gallows is not needed in American politics. It is a brutal 
 educator at its best; and the duty of the hour is to educate the 
 people, not the working men alone, but also their employers, their 
 judges, and their governors. The American republic does not fear 
 debate, nor tremble at the vibrations of a song. It is no compli- 
 ment to a great nation when a little magistrate proscribes " Annie 
 Laurie " or the " Marseillaise." The nobility as well as the mob- 
 ility must be taught that cruelty and violence are worthless as 
 political or social remedies. Free debate is the American crucible 
 in which all our political theories must be tried and purified. 
 Physical force is not a safe reliance for the rich, nor a competent 
 redress for the poor. The policeman's club is an ugly symbol of 
 our strength. It has its uses, but its moral power is not great. 
 When our peace and our possessions rest on that, and not on popular 
 content, we hold them by a tenure uncertain and precarious. We 
 must restore to Illinois the constitution and the law; and first of all, 
 we must reverse the judgment in the anarchist case, where both 
 were overthrown. 
 
APPEXniX. y^ 
 
 APPENDIX. 
 
 Judge Gary's letter to the governor in behalf of Schwab and 
 Fielden : 
 
 Chicago, 111., Nov. 8, 1SS7. 
 
 To tin- lion. Richard J. OgLsdy, Gorenior, c-lc. 
 
 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 jjrivate 
 character of the man, a natural love of justice, an impatience at 
 all undeserved suffering, an impulsive temper, and an intense love 
 of and thirst for the applause of 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 res]ionsible for the violence done by 
 reason of that advice, nor that being joined by others in an effort 
 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 w^as 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 favor- 
 able 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. 
 
 Mr. Grinnell's letter to the governor. 
 
 C'hicago, 111., Nov. 8, 1887. 
 
 Hon. Richard J. Oglesby, Governor, oU. 
 
 Sir — While endorsing and approving the foregoing statement 
 and recommendation by Judge Gary, I wish to add thereto the 
 suggestion, upon application of Mr. Foster, one of the attorneys 
 
APPEXDTX. 
 
 who appeared for the defendants upon the trial of said cause, that 
 Schwab's conduct during the trial and when addressing the court 
 before sentence, like Fielden's, was decorous, respectful to the law, 
 and commendable. I feel that you should know this fact, which 
 exists alone as to these two — Schwab and Fielden. 
 
 It is my further desire to say that I believe that Schwab was the 
 pliant, weak tool of a stronger will and more designing person. 
 Schwab seems to be friendless. 
 
 At this date no other application has been made to me, and if 
 made I have no further suggestions or recommendations to offer. 
 
 As to the two above named, I do not feel like putting any ob- 
 stacle in the way of a commutation of their sentence to imprison- 
 ment for life, although I should ha\-e preferred to have receivetl 
 from Schwab a statement similar in character to that from Fielden, 
 which is a great factor in his favor, in mv opinion. 
 
 Resi)ectfully yours, etc., Julius S. Grinnell, 
 
 State's Attorney. 
 
 Judge Tuthill's letter to the governor. 
 
 Mr. Ingham, who assisted in the prosecution, added a word of 
 approval, and Judge Tuthill wrote the following : 
 
 In view of the above statements of Judges Gary and Grinnell 
 and Mr. Ingham, touching Fielden and Schwab, and as well in con- 
 sideration of what I myself know of the facts of the case as affect- 
 ing these two men, I sincerely recommend and hope that executive 
 clemency may be extended to each of these men. 
 
 Richard S. Tuthill. 
 
 Note. — It is important that Judge Tuthill's letter be studied and 
 understood. His appeal is based not alone on the statements of 
 Judges Gary and Grinnell and Mr. Ingham, but also on what he 
 himself knew of " tlic faits in tJic case as aifecting those two men," 
 Schw^ab and Fielden. It makes one shudder to think how close 
 those two men came to the gallows, without a sign from Judge Tut- 
 hill that he knew of any ^^ facts in the case " favorable to them. He 
 kept silent until within three days of the time appointed for their 
 e.xecution. His testimony came late, but it will ever be a comfort 
 to Judge Tuthill and his children, that it came at last, and helped 
 to arrest the illegal sentence against Fielden and Schwab. It would 
 have been a greater comfort still had he expanded his plea for 
 mercy so far as to include all the men condemned, even though he 
 may not have known any facts favorable to any of them except 
 Fielden and Schwab. M. M. T. 
 
BIOGRAPHICAL 
 
 As llic aiulu)i-c)f ihis pain[)hlel lias aUaiuL-d a good deal of popularity ami un- 
 popularity by his criticisms of the anarchist trial, and his efforts to obtain a miti 
 gation of the sentence passed upon liie unfortunate men, the following sketch of 
 him is presented here. 
 
 Gen. M. iM. Trumbull is an Englishman, born in London. He is 6i years of 
 age, and .1 lawyer by profession. At the age of 20 he came to the United Stales, 
 and served with the American army during the war with Mexico. After the war 
 he resided in Virginia, but being strongly opposed to slavery his position in Vir- 
 ginia was not comfortable, so he left that state in 1853 and settled in Iowa. He 
 engaged in the practice of the law, and was a very active republican in politics, 
 lie w as a member of the first Iowa legislature that met at Des Moines, in January, 
 1858. In this legislature were several men who afterwards became prominent in 
 our national affairs: Belknap and jNlcCrary, both fr(jm the same county, each of 
 whom was afterwards secretary of war. Kirkwood, afterwards governor, United States 
 senator and member of Garfield's cabinet. Carpenter, governor and member of- 
 congress. Wilson, present Unite:! States senator; and many others of distinction 
 in politics and war. 
 
 Gen. Trumbull was one of the thirst volunteers from Iowa at the outbreak of the 
 war and was appointed captain of Company I, 3d Iowa Infantry. In August, 1862, 
 he was promoted lieutenant colonel of the regiment, and in November of that year 
 he was discharged for disability arising from injuries received in l)attle. On his 
 recovery he was appointed colonel of the 9th Iowa Cavalry, and afterwards briga- 
 dier general. He was mustered out in February, 1866. 
 
 In the fall of 1866 Gen. Trumbull was elected district attorney of the 9th jutlic- 
 ial district of Iowa, comprising the counties of Dubuque, Delaware, Buchanan, 
 Blackhawk and Grundy. He served for about three years and then resigned to 
 accept the appointment of collector of internal revenue for the 3d congressional 
 district of Iowa. This office was tendered him by President Grant, without any 
 solicitation whatever on the part of (ien. Trumbull. Having held the office of 
 collector for eight years, he resigned and visited his home in England, which he 
 had not seen for more than thirtv vears. For the jiast six years he has resided 
 in Chicago. 
 
 Gen. Trumbull's writings in the English and American magazines have 
 attracted a good deal of attention, especially those on economic anil social ques- 
 tions. Although a very active republican. Gen. Trumbull is an ardent free-trader, 
 and his "History of the Free Trade Struggle in England" has had very great pop- 
 ularity. His article on "American Aristocracy" published in The xVineteenth 
 Century was very much discussed in England, and also in the United States. 
 
 Gen. Trumbull has always been a strong opponent of the methods and prin- 
 ciples of the people known as anarchists, and especially of their theory of reform 
 by physical violence. On this question he has had many public and private con 
 troversies with Fielden, Spies and Parsons. His doctrine is that no change for the 
 better is possible except through moral forces. He is a strenuous advocate of "Law 
 and Order," and he holds that the rich as well as the poor shoidd be compelled to 
 respect the constitution and the law. He maintains that all the people, from the 
 highest to the lowest in rank, wealth or station, shall be equally under the protec 
 tion and correction of the law. He believes that judges and magistrates who 
 \ iolate the law, especially in their official capacity, are more guilty than delin- 
 quents of inferior degree. 
 
KF 
 
 
^-^,