Gen. M. M. Trumbull. Was It a Fair 
 
 37 v Trial? An Appeal to the Governor of 
 
 I 111. in behalf of condemned anarchists 
 
 335.83 
 
 T77w 
 cop. 2 

 
 LIBRARY OF THE 
 UNIVERSITY OF ILLINOIS 
 AT URBANA-CHAMPAICN
 
 n 
 
 UBKATTr 
 UNIVERSITY OF 
 URBANA 
 
 AN 
 
 TO THE GOVERNOR OF ILLINOIS 
 
 @EN. 
 
 N BEHALF OF THE CONDEMNED 
 ANARCHISTS 
 
 isasasasasasasasasasasasasasasasasaHasasasasasasasasasasasasasasasasasasasasaj
 
 . 2. 
 
 IAS IT A FAIR TSIAL ? 
 
 AN APPEAL TO THE GOVERNOR OF ILLINOIS, 
 BY GEN. M. M. TRUMBULL. 
 
 Seven men are now lying under sentence of death in Chicago, nominally 
 for murdef, but really for sedition, out of which it is alleged the murder 
 grew. It is averred by friends, and believed by many enemies of the con- 
 demned men, that their trial was unfair, the rulings of the court illegal, and 
 the sentence unjust. The decision of the Supreme Court ends the trial of 
 the Anarchists, but not the trial of the judgment. 
 
 These men are sentenced to die on the nth day of November. In the 
 gloom of this impending tragedy, the Governor of Illinois rises into unpar- 
 alelled importance as the highest court of appeal. He is called upon to 
 3 say whether the sentence is the decree of justice, or a judicial mandate of 
 revenge. Shall the " Revenge " circular of May 4th be answered by another 
 " Revenge " circular in the shape of a judicial opinion ? Shall the law of 
 the land be driven from the Court House by the law of retaliation ? The 
 (V Governor must decide. 
 
 We appeal to the Governor for clemency in this case on the grounds of 
 <y magnanimity and mercy, but not on them alone. We appeal to him that 
 he arrest this revengeful judgment, because the record shows that none of 
 the condemned were fairly proven guilty, while some of them were fairly 
 proven innocent; not innocent of sedition, and inflammatory speech, but 
 innocent of murder. 
 
 ^2*7^^ 
 
 It has been contended that the authority of the Governor over a judicial 
 ' sentence is the prerogative of mercy alone ; and that all questions of guilt 
 
 II87I7S
 
 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 Gov- 
 ernor 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 corrected by the pardoning power. The 
 case of John Frost will serve as an example : 
 
 In 1839, Frost, 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 Monmouth, and they had engaged in battle with the 
 police and soldiers. As a consequence of this mad enterprise fifty 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 West- 
 minster Hall. Their answer was : 
 
 
 
 " ist. 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 con- 
 fessed that there was error in the trial, it would be a scandal that the men 
 should suffer death. The sentence was, therefore, commuted to transporta- 
 tion for life. In the Frost case the commutation of the sentence was a ju- 
 dicial act exercised in the form of clemency under the pardoning power. 
 
 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 
 to them 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 un- 
 lawful siezure 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 is not binding on the 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 Execution- 
 er 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 say, that Mr. Justice Mulkey agrees to the conclusions, 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 conclusion must be, at least, dubious. If the 
 special reasons are unsound the general views resulting from them cannot 
 sanctify the hanging of seven 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 president 
 of a vigilance committee, in excuse for the hanging of a gang of bad charac- 
 ters, " 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 the decision becomes authority in Illinois, and that 
 it will be enbalmed in the " Reports." He sustains the decision, barring 
 the errors in it. When the passions of this hour are gone, when the 
 seven men are silent in the grave, 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 is not brave enough to expose in a separate opinion 
 the errors he confesses. Chief Justice Pilate confessed that there were 
 errors in the trial,' and even washed his hands of the judgment, but the 
 stain remains for ever. Mr. Justice Mulkey consents to the death of 
 seven men under a judgment which, although legally defective and infirm, 
 is good enough for them. The intimation of Mr. Justice Mulkey that he 
 has a dissenting opinion in his mind, which he declines to spread upon the 
 record, is of itself a full justification for interference by the Governor of the 
 State. 
 
 THE ODDS AGAINST THE PRISONERS. 
 
 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 de- 
 tective 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 di- 
 lemma. 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 tending 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. Evidence and its contra- 
 diction 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. 
 On this subject the rebuke of Lord Chief Justice Denman, in delivering 
 judgment in the O'Connell case, may be quoted with approbation. He said :
 
 5 
 
 " 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 en- 
 couraged." 
 
 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, voluminous 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 misdemeanor 
 punishable by imprisonment and fine. 
 
 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 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 legally 
 hang a man in Illinois, her civilization needs hurrying up. Will the Gov- 
 ernor permit this " grievance and oppression " to prevail ; he alone can save 
 the character of the State from the frenzy of the law. We ask the Gov- 
 ernor for clemency, and we base our petition on the right of every man to 
 a fair an impartial trial. 
 
 The Supreme Court decides that the matter of separate trials is within the 
 discretion of the court below, to allow them or deny them. True, but this 
 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 Gov- 
 ernor of the State, when by its operation the lives of seven 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 con- 
 fused the jury, who never even tried to sift the evidence or apply it. In
 
 6 
 
 hopeless bewilderment they contented themselves with a hurried verdict of guil- 
 ty " as charged in the indictment," an indictment which alleged the killing 
 of Degan in sixty-nine different ways. They never read the indictment, for 
 they were not out long enough to do so. 
 
 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 defendants 
 were weighted down with hundreds of criminations, which, having refer- 
 ence 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, Schwab, Fielden, 
 Parsons and Engel were responsible for the speeches made by them respec- 
 tively." 
 
 Here Fielden, whose name appears not in the first sentence, is ingenious- 
 ly woven into the mixture of writing, publishing and speaking, although he 
 never wrote or published anything. 
 
 If it is pretended that the jury applied the evidence to the defendants 
 ' 'respectively," the proof is absolutely conclusive that they did not. It was 
 impossible for them to do so in the short time occupied by them in deliber- 
 ation. In that short time they could not have reviewed, compared or ap- 
 plied the evidence either to the counts in the indictment, or to the defend- 
 ants " respectively." 
 
 The Supreme Court itself was compelled to recognize the illegal charac- 
 ter of the testimony above described, although in an apolegetic way. The con- 
 fession 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 except as against the 
 defendant making them, or in whose presence they are made. The utter- 
 ances of the defendant Spies, whether in his paper, his speeches or his con- 
 versation, 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 inconsiderable that it could not in any way have injured the other de- 
 fendants."
 
 Unfortunately a great deal of testimony " not of the character indi- 
 cated " was admitted, not only against the defendant making them, but 
 against all the others. It is a violent assumption that it could not have in- 
 jured 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 defendant impli- 
 cated 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 wel- 
 comed. The court reasons as if the defendants 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 dis- 
 credited 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 interested enough to speak falsely. Thus in referring to Fielden's 
 testimony 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 were urged by coun- 
 sel for the State to disbelieve the testimony of the defendants, 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 ATTORNEY. 
 
 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 
 
 be inflamed the passions of tb Roman populace by pointing them to
 
 " Caesar's vesture wounded." They were permitted to show the jury no 
 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 plucked his cursed steel away, 
 Mark how the blood of Csesar followed it." 
 
 The artful stump speech of Antony was perfectly legitimate. It was not 
 made in a judicial proceeding, but in a political contest. He was of the 
 opposite party to that of Brutus. The struggle between them was for the 
 possession of the offices and the control of the government ; but had 
 Antony been State's Attorney, prosecuting Brutus and Cassius under an 
 indictment for the murder of Caesar, the Roman judges would not have 
 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 people in Degan's case, were alike to excite 
 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 manner of Degan's death, and therefore the exposure of his wounded 
 vesture to the jury was useless and superfluous, except as an appeal for 
 vengeance. The Supreme Court, unwilling to sanction such a method, finds 
 a weak excuse for it, and mildly rebukes it, thus : 
 
 " The articles in question were presented in the condition in which they 
 were left after being exposed to the force of an exploding 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 Degan. 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 after- 
 ward. Mark Antony could as pertinently say that he showed the rent
 
 9 
 
 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 questions to their 
 own witnesses, notably to Gilmer, the most rickety witness of all. He 
 swore that he saw the bomb 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 was, " I say that is the man that threw 
 the bomb out of the alley." The question was leading, for it lead the wit- 
 ness at once to the desired answer, yes. The offer of the picture by itself 
 for identification was unfair. It should have been mixed with others and 
 the witness required to select the portrait of Schnaubelt, without aid or sug- 
 gestion 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 ac- 
 cidentally identified by a stranger who suddenly appears upon the scene. 
 It is amazing that the Supreme Court allowed itself to be imposed upon by 
 this bit of melodrama. Here is the way the scene is described in the writ- 
 ten opinion : 
 
 " When shown a photograph 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 mechanical and 
 artificial. As the mummery of stage identification is rehearsed behind the 
 scenes, 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 Gilmer. So, as to Spies. Gilmer had seen the 
 prisoners day after day, 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 testimony of 
 Gilmer cannot possibly be true. He is contradicted by the positive testimo- 
 ny 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 inanimate witnesses that cannot lie, the street, the alley, 
 the houses in the neighborhood of the tragedy, the wagon, the pile of lum?
 
 10 
 
 . 
 
 ber, 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 may have be- 
 lieved it at the beginning. Notwithstanding its demonstrated falsity the 
 testimony of Gilmer was played on the jury with great ingenuity. It was 
 reinforced from Des Moines so that it might last until the rendition of the 
 verdict. Its importance to the State was very great, for it was the only 
 thread that connected any 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 burning end of a cigar, it played an awful part in the doom of seven 
 men. More than any other part of the secondary evidence, it controlled the 
 jury ; and although the Supreme Court evidently distrusted it, and even 
 disbelieved it, the tremendous judgment of the court tries to rest upon it. 
 Uneasy there, it throws the responsibility upon the jury, and seeks a foun- 
 dation somewhere else. Here is the nervous expression of the Court : 
 
 " There is a mass of testimony in the record in reference to the state- 
 ments made by Thompson and Gilmer. Some of this testimony sustains 
 those statements and some of it discredits them. It is sufficient to say that 
 it is very conflicting. It was the province of the jury to pass upon it. They 
 had a right to consider it in connection with all the other facts and circum- 
 stances 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 presence of reasoning like that the imperilled citizen stands paral- 
 ized and helpless. If it is not necessary to pass any opinion upon disputed 
 testimony which influenced a jury to condemn seven men to death, than 
 such a duty never can be necessary in any case. " Not necessary to pass 
 any opinion ! " Why, one thousand words of the decision is given to the 
 testimony of Gilmer alone. And every word of the thousand is an expres- 
 sion of opinion. Every word of it is adverse to the defendants, and the 
 benefit of every doubt is given to the State. In those thousand words, are 
 these : 
 
 " Witnesses for the defense identified mostly with the International organi- 
 zation, 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 expression either, for it 
 shows feeling on the part of the Court. The genuine opinion of the Su- 
 preme Court that the testimony of Gilmer was worthless glimmers in the
 
 11 
 
 concluding' sentence, " There is enough to sustain the finding independently 
 of the testimony given by Thompson and Gilmer." 
 
 THE PROVINCE OF THE JURY. 
 
 Whenever 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. This testimony 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 num- 
 ber, 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 of evidence in the most impor- 
 tant case ever tried in the State of Illinois. This in tiresome phraseology 
 repeated over and over again. 
 
 " The jury were warranted in believing that the bomb was made by 
 Lingg ; " " the juty were warranted in believing that the Haymarket meet- 
 ing was not intended to be peaceable ; " ' the jury were warranted in believ- 
 ing that the bomb was thrown and the shots fired as a part of the exe- 
 cution of the conspiracy ; " " it was for the jury to say 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 advocated by the international organiza- 
 tion ; " " it was 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 designated ; " the jury were warranted in believing that Parsons was 
 associated with the man who threw the bomb ; " " it was for the jury to say 
 whether any others, than the members of that conspiracy had undertaken to 
 make such weapons ; " an so on, in monotonous formulary, page after page. 
 A jury which the defendants allege was not impartial is made infallible judge 
 of the legal and moral quality of all the evidence. 
 
 In selecting a jury to try the Anarchists the principle of impartiality was 
 violated. The form of the statute may have been observed, but the spirit 
 of the law was not. Whole classes of qualified persons were stricken from
 
 the jury lists, or at least, they were not summoned in the case, which amounts 
 to the same thing. Unfortunately these were what are known as the " work- 
 ing 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 adminis- 
 tration was in the hands of the prosecution ; and a common bailiff, a sub- 
 ordinate part of that machinery, was made absolute dictator aud 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 
 qualified voters gives to both sides was not given to the defendants. The 
 jurors were not " drawn," but " summoned." They were summoned by 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 prosecution 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, an- 
 archists, and communists, while some of them even admitted that they were 
 prejudiced against the defendants. Yet this is the jury " whose province 
 it was" to pass upon all the evidence, and who were " warranted in believ- 
 ing " anything against the defendants. To hang men on the verdict of a 
 jury thus chosen and impanneled will be a stain upon the jurisprudence of 
 Illinois long after all the actors in the drama shall have passed away. 
 
 THE CASE OF DANIEL O'CONNELL. 
 
 In the O'Connell case the defendants were tried in Dublin for a conspir- 
 acy 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 jury 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 defendants, 
 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 religion as the defendants were excluded from the 
 jury. The defendants challenged the array, but their challenge was over-
 
 13 
 
 ruled 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." What 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 who are accused, will be a MOCK- 
 ERY, a DELUSION and a SNARE." 
 
 In regard to the Sheriff's responsibility for the loss of 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, but involves that larger question 
 whether the party has had the security of trial by a lawful jury of his coun- 
 try" 
 
 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 jury list had been mutilated ; in 
 other words, because all classes of qualified jurymen were not represented on 
 the lists from which the trial jury was drawn. In the Anarchist case, seven 
 lives are involved, and the jury was obtained by worse maneuvres than the 
 "worst maneuvres" employed in the trial of O'Connell. Although more 
 than a thousand men were summoned, several wards of Chicago were ab- 
 solutely excluded from representation on the lists from which the summon- 
 ses were made. Whole classes of qualified jurors were denied a represen- 
 tation on the lists by the arbitrary decision of a common bailiff of the 
 Court. If the judgment of death shall be permitted to stand in this case on
 
 14 
 
 the verdict of a jury selected in that way, and from a jury list thus mutila- 
 ted, then, indeed, has trial by jury, instead of being a security to persons 
 who are accused, become " a MOCKERY, a DELUSION and a SNARE." 
 
 THE STATE TAKES ADVANTAGE OF ITS OWN WRONG. 
 
 In a light and playful way, Mr. Justice Mulkey, conceding 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 Judge 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 re- 
 quired to make, the wonderment to me is the errors were not more numer- 
 ous and of a more serious character than they are." 
 
 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 seven men are to be strangled. The joinder 
 of defendants at the trial was the act of the State's Attorney himself, yet he 
 was permitted to take advantage 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 and requires no further remark." 
 
 Certainly language cannot be plainer than that, but the statute is to be 
 construed, not according to its language alone, but according to its logic- 
 ally moral meaning, or as Blackstone has it, " according 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 pleasure a large number of defendants in one 
 indictment, and then 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 number of de- 
 fendants by joining them together in an indictment, but it cannot multiply 
 itself by its own arbitrary act and will, kavv, or no{ Jaw, the allowance ef
 
 15 
 
 160 peremptory challenges to the prosecution was a " grievance and oppres- 
 sion." It was 1 60 challenges against each of the defendants, while they 
 were allowed only 20 each against the State. It is very true that the pros- 
 ecution used only about 60 of the peremptory challenges allowed them, 
 while the defendants exhausted all of theirs, but this itself is evidence that 
 the talesmen selected by the bailiff were favorable to the State and hostile 
 to the defendants. 
 
 THE SPEECHES TO THE, JURY. 
 
 The speeches to the jury were appeals for vengeance on the prisoners. They 
 were anarchy in legal robes, vindictive and crimson 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 up- 
 on 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 mendi- 
 cant and ragged when the State's Attorney begged for a verdict on the 
 niggling plea that the State had no appeal from acquittal, while from a 
 judgment of guilty the defendants could appeal fora reversal to the Su- 
 preme 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 
 responsibility for the sentence of death. 
 
 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 volume, and, although it has al- 
 ready been quoted in a Chicago periodical, it will bear repeating here. 
 
 " Early in January, Preston, Ashton and Elliott had been arraigned at the 
 Old Bailey. They claimed the right of severing in their challenges. It 
 was, therefore, necessary to try them seperately. A considerable number of 
 judges appeared on the bench, and Holt presided. The Solicitor General, 
 Somers, conducted the prosecutions with a moderation and humanity of 
 which his predecessors had left him no exajnple. ' I did never think,' he said, 
 ' that it was the part of any who were of counsel for the King in cases of 
 this nature to aggravate the crime of the prisoners, or to put false colors on
 
 16 
 
 the evidence.' Holt's conduct was faultless. Pollexfen, 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 have been surprised by the fairness and gentleness with which they 
 were treated. ' I would not mislead the jury, I'll assure you,' said Holt to 
 Preston, ' nor do you any manner 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.' " 
 
 Whatever their fate may be, the condemned Anarchists cannot say that 
 they have had a fair trial for their lives. Their wives and children cannot 
 say so ; no friend of theirs can say so ; and no enemy who has calmly 
 studied the case. The plea for their death is that they are enemies of 
 society, who may beneficially be destroyed. 'Anarchy is on trial," said 
 the State's Attorney to the jury, and the verdict was responsive to the ap- 
 peal. Vengeance is mine, says Populus, and I will repay. What matters 
 it whether the seven are specifically guilty of the Haymarket 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 is 
 bound by the rules of the forum he selected. When he took his enemies 
 before a jury he promised them a fair trial according to the laws of the land, 
 and by that promise Populus is 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 bad law, correct instructions from erroneous 
 ones, but, also, that they actually made the separation and acted on the 
 good law and the correct instructions 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 itself. 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.
 
 17 
 
 " 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 instruction 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." 
 
 In that paragraph is an assumption that the jury were competent to con- 
 sider 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 bad. Unfortunately, the sudden 
 agreement on a verdict proves that the jury did not consider all the in- 
 structions together, but only those fringed with the sombre embroidery of 
 death. 
 
 In another place the Supreme Court says this : 
 
 "Therefore, the instruction fairly interpreted means that the persons ad- 
 vised to commit murder were the working men belonging to and acting with 
 the International group," 
 
 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 important instruction of doubtful character the Supreme Court 
 holds was made harmless, if not sound, by comparing it with healthier and 
 more legitimate instructions. These "qualified" its meaning and disarmed 
 it. In the language of the Supreme Court : 
 
 " The instruction is sufficiently limited and qualified when read in connec- 
 tion with all the other instructions to which it specially calls attention. It does 
 not supersede 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 di- 
 rected to carefully scrutinize such other instructions, and are told that their ap- 
 parent 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 inconsisten- 
 cies," 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 inconsisten-
 
 18 
 
 cies "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 " in- 
 consistencies " are there ; and no extent of scrutiny will make them " disap- 
 pear." Besides, the evidence is clear that the jury did not attempt to " scru- 
 tinize" the instructions except in their most fatal meaning to the men on 
 tiral. The Supreme Court continues thus : 
 
 " In the last sentence the jury are requested to disregard any unguarded 
 expressions that may have crept into the instructions which may seem to as- 
 sume 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 expres- 
 sions " crept into the instructions; expressions that assume the existence of 
 facts ? " They could not have crept in except by forgery. They were put 
 in by the Judge. Having put them in, he politely " requested " the jury to 
 disregard them. Where is the evidence that the jury did as requested ? 
 There is none, while the proof is abundant that they did not. It was unrea- 
 sonable to expect that the jury would strike out unguarded expressions which 
 assumed the existence of facts, after the judge himself had deliberately put 
 them in, and why is it that in all this voluminous case no unguarded expres- 
 sions " crept in " which assumed the existence of facts favorable to the ac- 
 cused ? Why is it that the benefit of every doubt is given to the State, while 
 the defendants must bear the evil consequences of every mistake made by 
 l he State's Attorney and the Judge ? All these wrongs are not without a rem- 
 edy, and that remedy lies in the moral nerve of the Governor of Illinois. 
 
 THE INVERTED LOGIC OF THE COURT. 
 
 Never before, except in burlesque, was the meaning of words reversed as 
 in the Anarchist trial. Logic stood on its head, and reasoned with its heels. 
 Facts absent from the theory of the prosecution were solemnly claimed as 
 evidence to establish it. It was averred that if certain events had happened 
 which did not happen, they would 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 
 ^s the language of the opinion itself that throws sarcasm upon the decision. 
 Here is the claim of the Supreme Court :
 
 19 
 
 " The mode of attack as made corresponded with the mode of attack as 
 planned." 
 
 And here is the inconsequent reasoning by which that claim is sup- 
 ported : 
 
 "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 sta- 
 tion itself, and if the policemen had been shot down while coming out, a 
 part of the conspiracy would have been literally executed just as it was 
 agreed upon. 
 
 By reasoning upside down in that fashion the tragedy in the Haymarket 
 is connected with a conspiracy that was not carried out, and 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 have had 
 any association whatever with the seven men, nor any connection at all with 
 the so-called conspiracy. The Supreme Court itself virtually rejects the theory 
 that Schnaubelt threw the bomb, for the more comprehensive drag-net theory 
 that it was thrown by " some person to the jurors unknown." 
 
 The conspiracy which the prosecution attempted to show on the trial, and 
 which it is pretended they did show, was not carried into execution in any 
 of its essential details. As illustrated and explained 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 out 
 side to shoot the police as they came out ; then the conspirators were to 
 march inwards towards the heart of the city, destroying whatever should oppose 
 them ; the telegraph wires and the hose of the firemen were to 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 con- 
 spiracy, and tends to show that the bomb-throwing was the revengeful ac 
 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 tragedy,
 
 20 
 
 and for want of the necessary facts a scaffold for seven men is built of "if" 
 and " would have been." 
 
 " If a bomb had been thrown into the station, and if the policemen had 
 been shot down while coming out, a part of the conspiracy would have been 
 literally executed." 
 
 And therefore seven 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 heavier crime of murder was permitted to rest 
 upon an undefined and shadowy charge composed of opposite and 
 contradictory ingredients. The so-called conspiracy, instead of being a 
 substantial accusation based on fact- averments on which issue might be 
 taken, was nothing but a claim growing out of a mass of incoherent run- 
 ning testimony, and shifting day by day. The conspiracy was a remote 
 cloud changing its form continually 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."
 
 UNIVERSITY OF ILLINOIS-URBANA 
 
 335.83T77W C002 
 
 WAS IT A FAIR TRIAL? 
 
 30112025292381