Democratic Sentinel, Volume 11, Number 42, Rensselaer, Jasper County, 11 November 1887 — "WE DENY THE WRIT.” [ARTICLE]

"WE DENY THE WRIT.”

The Decision of the United States Supreme Court in the Anarchist Case. No Federal Question Involred, and the Court Unanimous in This Opinion. How the News Was Received by the Condemned Men in the Chicago Jail.

Washington, Nov. 3. The Supreme Court of the United States yesterday denied the motion for a writ of error in the anarchist cases. The decision was delivered by Chief Justice Waite and was that of the full bench. It occupied thirty-seven minutes in rapid reading. When the justices entered the room Justices Miller and Waite sighed deeply a number of times, and the voice of the "latter trembled for some minutes after he began reading. At times he repeatedly faltered, and, going back, reread whole sentences. The faces of the other seven Justices were turned to the floor during nearly the entire time of the delivery. Occasionally Justice Waite took his eyes from the paper, looked the audience in the face, and gave emphasis to points in the decision which marked tjie outline of his intentions and showed what had guided the bench in reaching its conclusion. Following is the text of the opinion: When, as in this case, application is made to us on the suggestion of one of our number to whom a similar application has been previously addressed for the allowance of a writ of drror to the highest court of a State, under Section 70!) of the Revised Statutes, it is our duty to ascertain not only whether any question reviewable here was made and decided in the proper court below, but whether it is of a character to justify the bringing the judgment here for re-ex-amination. In our opinion the writ ought not to be allowed by the court if it appears from the face of the record that the decision of the Federal question which is complained of was so plainly right as not to require argument; and especially if it is in accordance with our own wellconsidered judgments in similar cases. That is in effect what was done in Twitchell vs. The Commonwealth, 7 Wall, 323, when the writ was refused because the questions presented by the record were “no longer subjects of discussion,” although if they had been in the opinion of the court “open” it would have been allowed. When under Section 5 of our Rule 6 a motion to affirm is united with a motion to dismiss, for want of jurisdiction, the practice has been to grant the motion to affirm when the question on which our jurisdiction depends was so manifestly decided right that the case ought not to be held for further argument. Arrowsmith vs. Harmoning, 118 United States, 191, 195 ; Church vs. Kelsey, 121 United States, 282. The propriety of adopting a similar rule upon motions in open court tor the allowance of a writ is apparent, for certainly we would not be justified us a court in sending out a writ to bring up for review a judgment of the highest court of a State, when it is apparent on the face of the record that it would be our duty to grunt a motion to affirm as soon as it was made in proper form. In the present case we have had the benefit of argument in support of the application, and, while counsel have not deemed it their duty to go fully into the merits of the questions involved, they have shown us distinctly what the decisions were of which they complain, and how the questions arose. In this way we are able to determine, as a court in session, whether tho errors alleged are such as to justify us in bringing the case here for review. We proceed, then, to consider what the questions are in which, if it exists at all, our jurisdiction depends. The particular provisions of the Constitution of the United States on which counsel rely are found in Arts. IV., V., VI., and XIV. of the amendments, as follows: Art. IV. The right of the people to bo secure in their persons, houses, papers, and effects against unreasonable search and seizures shall not be violated. Art. V. No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law. Art. VI. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. Art XIV., Sec. 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nbr shall any State deprive any person of life, liberty, or property without due process of law. That the first ten articles of amendment were not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National Government alone, was decided more than a half century ago, and that decision has been steadily adhered to since. Barron vs. Baltimore, 7 Peters, 243, 217; Livingston vs. Moore, idem., 469, 552; Fox vs. Ohio, 5 Mow, 410, 434; Smith vs. Maryland, 18 How, 71, 76; Withers vs. Buckley, 30 How, 84, Pervear vs. The Commonwealth, 5 Wall, 475, 479; Twitchell vs. The Commonwealth, 7 How, 321, 325; Justices vs Murray, 9 Wall, 274, 278; Edwards vs. Elliott, 21 Wall, 532, 557; Walker vs. Sanvinet, 92 United States, 90; United States vs. Cruikshank, 92 United States, 542, 552; Pearson vs. Yewdall, 95 United States, 294, 296; Davidson vs. New Orleans, 96 United States, 97, 101; Kelly vs. Pittsburg, 104 United States, 79; Presser vs. Illinois, 116 United States, 252, 265. It was contended, however, in argument that though originally the first ten amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights, common law rights of the man, they make them privileges and immunities of the man as a citizen of the United States, and can not now be abridged by a State under the fourteenth amendment. In other words, while the ten amendments as limitations on power only apply to the Federal Government, and not to tho' States, yet in so far as they declare or recognize rights of persons, these rights are theirs as citizens of the United States, and the fourteenth amendment sb to such rights limits State power, as the ten amendments had limited Federal power. It is also contended that the provisions of the fourteenth amendment, which declares that no State shall deprive “any person of life, liberty, or property without due process of law,” imply that every person charged with crime in a State shall be entitled to a trial by an impartial jury, and shall not be compelled to testify against himself. The objections are in brief. (1) That a statute of this State as construed by the court deprived the petitioners of a trial by an impartial jury, and (2) that Spies was compelled to give evidence against himself. Before considering whether the Constitution of the United States has the effect which is claimed, it is proper to inquire whether the Federal questions relied on in fact arise on tho face of this record. THE QUESTION ON THE ILLINOIS STATUTE. One statute to which objection is made was approved March 12, 1874, and has been in force Since July 1 of that year. The complaint is that the trial court, acting under this statute and in accordance with its requirements, compelled the petitioners, against their will, to submit to a trial by a jury that was not impartial, and thus deprived them of one of the fundamental rights which they had as citizens of the United States under the National Constitution; and that if the sentence of the court is carried into execution they will be deprived of their lives “without due process of law.” In Hopt vs Utah, 120 United States, 439, it was decided by this court that where a challenge by a defendant in a criminal action to a juror for bias, actual or implied, is disallowed, and the juror is thereupon pevjmptorily challenged by the defendant and excused, and an impartial and competent juror is obtained in his place, no injury is done the defendant if, until the jury is completed, he has other peremptory challenges which he can use; and so in Hayes vs. Missouri, 120 United States, 71, it was said, “The right to challenge is the right to reject, not to select, a juror If from those who remain an impartial jUx, is obtained the constitutional right of the accused is maintained.” Of the correctnes i of these rulings we entertain no doubt. We are therefore confined in this ease to the rulings on the challenges to the jurors who Actually sat at the trial, Of these there were

but two—Theodore Denker, the tnird juror who was sworn, and H. T Sanford, the last who was called and sworn after all the peremptory challenges of the defendants had been exhausted. At the trial the court construed the statute to mean that “although a jurer called as a juryman may have formed an opinion based upon .rumor or upon newspaper statement, but has expressed no opinion as to the truth of the newspaper statement, he is still qualified as a juror if he states that he can fairly and impartially render a verdict thereon in accordance with the law and the evidence, and the Court shall be satisfied of the truth of such statement. It is not a test question whether a juror will have the opinion which he has formed from newspapers changed by the evidence, but whether his verdict will be based only upon the account which may here be given by witnesses under oath. Interpreted in this way the statute is not materially different from that of the Territory of Utah, which we had under consideration in Hopt vs. “Utah Supra. , and to which we then gave effect. As thatjwas a Territorial statute passed by a Territorial Legislature for tho government of a Territory over which the United States has exclusive jurisdiction, it came directly within the operation of Article 6 of the amendments, which guaranteed to Hopt a trial by impartial jury. Webster vs. Reid, 11; Howard, 437, 439. No one at that time suggested a donbt of the constitutionality of the statute, and it was regarded, both in the Territorial courts and here, as furnishing the proper rule to be observed by a Territorial court in impaneling an impartial jury in a criminal case. A similar statute was enac ed in New York May 3, 1872. [Acts of 1872, C 475, 9 New York State-at-largo, second edition, 373 ; in Michigan, April 18, 1873, acts of 1873, 162, act 117, Howell; statute of 9,564, and also in Nebraska, compiled statutes of Nebraska, 1885, p. 383, and Criminal Code of Nebraska 408.1 The constitutionality of the statute of New York was sustained by the Court of Appeals of that State in Stokes vs. the People, 53 New York, 164 to 172, decided June 10, 1873, and it has been acted upon without objection ever since. So far as we have been ablo to discover no doubt has ever been entertained in M ichigan or Nebraska of the constitutionality of the statutes of those States respectively, but they have always been treated by their Supreme Courts as’ valid, both under the Constitution of the United States and under that of the State. |Stephens vs. the People, 38 Michigan, 739 to 745; Ulrich vs. the People, 39 Michigan, 215; Murphy vs. the State, 15 Nebraska, 383. j Indeed, the rule of the statute of Illinois, as it was construed by the trial court, is not materially different from that which has been adopted by the courts in many of the States without legislative action. I Commonwealth vs. Webster, 5 Cushing, 295; Holt vs. the People, 13 Michigan, 224; State vs. Fox, 1 Dutcher, 566; Ostrander vs. the Commonwealth, 3 Leigh, 780; State vs. Ellington, 7 Wendell, 61; Smith vs. Eames, 3 Soam, 81. See also an elaborate note to this last case in 36 A. M. dec. 521, where a very large number of authorities on this section are cited, j Without pursuing this subject further it is sufficient to Say that we agree entirely with the Supreme Court of Illinois in the opinion that the statute on its face as construed by the trial court is not repugnant to Section 9 oi Article 2 of the constitution of that State, which guarantees to the accused party in every criminal prosecution a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed. As this is substantially the provision of the Constitution of the United States, on which the petitioners now rely, it follows that even if their position as to the operation and effect of that Constitution is correct the statute is not open to tho objection which is made against it. THE CHALLENGED JURORS. W e proceed then to the consideration of the grounds of challenge to the jurors, Denker and Sanford, to see if, in the actual administration of the rule of the statute by the court, the rights of these defendants under the Constitution of the United States were in any way impaired. I The court then gives extracts from the examination of Deaker by the defense, and says that he was challenged for cause by the defendants, but before any decision was made thereon he was questioned by the court, and the court s examination is appended. “The court, ”it continues, “thereupon overruled the challenge, but b< fore the juror was accepted and sworn he was further examined by counsel for the defendants.” (This examination is also reprinted from the record.) The court then says that the examination of the juror by counsel for the defendants closed and he was examined by the attorney for the State, and citations are given from the questions and answers in this examination. The opinion continues:] At the close of the examination neither party challenged the juror peremptorily, and he was accepted and sworn. When this occurred it was not denied the defendants were still entitled to 143 peremptory challenges, or about that number. When Juror Sanford was called he was first examined by counsel for the defendants. (The examination is here quoted.) At the close of this examination on tho part of tho defendants the juror was challenged on their behalf for cause, and the attorney for the State, after it was ascertained that all the peremptory challenges ot the defendants-had been exhausted, took up the examination of the juror. (The result of this examination is given, as is the ruling of the court denying the challenge to overrule for cause, and stating that as the peremptory challenges of the defense are exhausted Sanford is a juror to try the case, so far as tho defendants are concerned). This was accepted by both parties, the court says, as a true statement of the then condition cf tho caso, and after some further examination of the juror, which elicited nothing of importance in connection with the inquiry, no peremptory challenge having been imposed by the State, Sanford was sworn as a juror, and the panel was thus complete. This, so far as we have been advised, presents all there is in the record which this court can consider touching the challenge of these two jurors by the defendants for cause. In Reynolds vs. the United States, 98 U. S„ 145 to 156, it was decided by this court that in order to justify the reversal of the judgment of the Supreme Court of the Territory of Utah for refusing to allow a challenge to a juror in a criminal case on the ground that he had formed and expressed an opinion as to the issues to be tried, it must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial The case must be one in which it is manifest the law left nothing to the conscience or discretion of the court. If such is the degree of str ctness which is required in the ordinary cases of writs from one court to another in the same general jurisdiction, we ought to be careful that it is not at all relaxed in a case like this when the ground relied on for the reversal by this court of a judgment of the highest court of the State is that the error complained of is so great as to amount to a denial by the State of a trial by an impartial jury to one who is accused of crime. We are unhesitatingly of the opinion that no such case is disclosed by this record. We come now to consider the objection that the defendant Spies was compelled by the court to be a witness against himself. He voluntarily offered himself a witness in his own behalf, and by so doing he became bound to submit himself to a proper cross-examination. The complaint is that he was required on cross-ex-amination to state whether he had received a certain letter which was shown, purporting to have, been written by Johann Most, and addressed to him, and upon his saying that he had, the court allowed the. letter to be read in .evidence against him. This, it is claimed, was not proper cross-exami-nation. It is not contended that the subject to which the cross-examination related was not pertinent to the issue to be tried, and whether a cross-examination must be confined to matters pertinent to the testimony in chief, or may be extended to the matter in issue, is certainly a question of State law in the courts of the State and not the Federal law Something has been said in argument about an alleged unreasonable search and seizure of the papers and property of some of the defendants, and their use in evidence on the trial of the case. Special reference is made ih this connection to the letter of Most, about which Spies was cross-examined, but we have not been referred to any part of the record in which it appears that objection was made to the use of the evidence, on that account, and upon this point the Supreme Court of the State in that part of its opinion which has been printed with this motion remarks as follows; “The objection that the letter was obttflned from the defendant by an unlawful seizure is made for the first time in this court. It was not made on the trial ip the court below. Such an objection as this, which is not suggested by the nature of the offered evidence, but depends upon the proof of an outside fact, should have been made on the trial. The defense should have proved that the Most letter was one of the letters illegally seized by the police, and should then have moved tq .exclude, or opposed its admission, on the.ground that’ it was obtained by such illegal ’ seizure. This was

■Ot done, and, therefore, we cannot consider tne constitutional question supposed to be involved.* AT CHICAGO. How tho Prisoners Received the News— Police Precautions. _. .. Chicago, Nov. 3. When the news came from Washington that the Supreme Court had refused the writ of error and made public its decision, to say that the heart of every man around the jail jumped up into his throat almost tells the truth. Clerk Price actually turned pale and Jailer Folz talked with excitement. It is understood that everything rests on that decision, and it was waited for with as much dread almost as though each man himself was interested. The information was hastily written on a slip of paper, and Chief Price himself toox the notes up to Sides and Parsons to see what they would say. Their fades might as well have been stone for all the feeling they betrayed. Not a shiver, a shrug of the shoulders, nor any act that looked as if it made any difference to them whether the Supreme Court decided they should hang or pot- When Clerk Price broke the news to Parsons the latter was as impassive as la marble statue. Not a muscle moved, and if hii heart stood still an Instant no one could tell it. Fu ting his cigar between his lips, he picked up a newspaper and slowly remarked: “Well, I don’t think I have anything to say. * “Will you answer the note?” “No, I believe not." “Do you believe it?* “It may be true.” Spies’ conduct was Parsons’ over again; Mr. Osborne, who keeps the death-watch in murdo.’ers’ row, was then prevailed upon to go to the cell of each anarchist and tell him the decision of the Supreme Court. When the white-haired officer came down he was trembling with emotion and his voice was choked. “I don't want, to do that again,” stammered he. “Every time I spoke to one of those fellows I thought I was giving him his death sentence, while each one turned and looked at me as unconcerned as if I was telling him nothing of any importance. Lingg said he expected it. Fischer said, ‘ls that so?' and the rest merely grunted their acknowledgment It did seem as if a flush spread over their faces when I told them, but perhaps I imagined it Each’one turned to whatever he was doing and I passed cn to the next. Just see how I tremble, while they are as cool as cucumbers.”

The first visitor to arrive at the jail after the news became public was Mrs. Engel, who never fails to call twice every day to seoher husband. She remained in the jail office for about ten minutes awaiting the appearance qf her husband. She was, indeed, an object of pity. Lingg’s girl was the next to arrive. She cried continually. Lingg, on the other band, was the happiest man in the prison. He wore his usual flaming red necktie, and laughed and chatted with his visitor, who replied to hie sallies with tears in her eyes. Just before Spies’cell was unlocked to release him for a brief hour and a half he coolly lighted a cigar, and as he stepped from his cell to the floor below looked the picture of a contented gentleman going out for a stroll. He never held his head higher nor smiled more benevolently. In the cage stood the aged and sorrowing mother of Spies, accompanied bv his two brothers, Ferdinand and Henry. Mrs. Spies was dressed in deep mourning, and was scarcely able to support herself in her grief. Mrs. Schwab talked long and earnestly with her husband. Her face was flushed with excitement, and to all attempts at a conversation by the other visitors she turned a deaf ear. • Mrs. Parsons brought her two children with her, and they were allowed to go behind the bars and play with their father. Parsons is far from overawed at his approaching fate. On being as ed how he felt he replied : “I feel nretty much as did my ancestor Jonathan Parsons, who served in the good cause of 1776. He was the original of the term ‘Brother Jonathan,’ and was a likely man in his day. An elder, by the way.” And without further explanation he turned on his heel, took another whiff at his cigar, and walked off. Nina Van Zandt was the last of the prisoners’ friends who came to the jail in the afternoon. She romaine.l for about fifteen minutes, and then turned to Sheriff Matson. “It looks very bad for August,” she said, “and I really don’t know what to think. This is fearful, isn’t it?” Outside the jail the preparations for preventing any kind of attacks were noticed on every baud. Immediately on receipt of the news from the East a detail of police arrived from the Central Station and were distributed about the building and its approaches. Capt. Schaack arrived early in the afternoon and renewed his orders for vigilance on the part of his men. The officers have little fear of any attempt at violence from outside sources. The only preparation for the hanging that has been made by the Sheriff was to give an order for rope. Within two hours of the receipt of the news frqm Washington an order came from the Grand Jury in session ordering the Jailer to release eleven prisoners who were confined on various charges. It is understood that several discharges will be made each day. Onlv aggravated cases will be held for trial. It is desirable that there be as few prisoners as possible on Nov. 1 . It is also quite probable that a number of prisoners will bo taken to the police stations for safe keeping until after the execution. Captain Schaack very naturally believes that should there be any organized demonstration of the anarchists out of jail the threat often expressed of setting fire to the town would be the first plan carried out, and this would include the demolition of the water-works by dynamite. As a precaution, he has stationed in the water-works building a strong guard, armed with Winchester rifles and revolvers. ELSEWHERE. New York and St Louis Anarchists Wild with Rage—Vengeance Threatened. The New York anarchists are wild over the decision of the Supreme Court, says a dispatch from that city, and threaten all sorts of vengeance. Said one of them : “There are fully 8 uOO or 10,000 recently enrolled into a new order called Anarchists’Avengers’ Society, sworn to butcher any one concerned in the murder of any of our numbers. It’s a new order, but its influence will soon be known.” ’ The news of the decision was received with terrible threats. They immediately called a meeting to express hatred for the Government and the existing order of things. The editor of the anarchist organ said: “If these men are allowed to hang there will be an outbreak in Chicago that the authorities will be powerless to quell, and that will result in bloodshed and damage to property. The reign of terror that now prevails in Russia will be inaugurated in this country." Neebe, Like Niobe, Is All Tears. T . „ Joliet, 111,, Nov. 3. Louis Neebe, brother of Oscar Neebe, the anarchist doing a seventeen-year sentence here, visited his convict brother’at the prison to bring him the news of the doom of the condemned seven at Chicago. Neebe was overcome with emotion and shed tears copiously. George Francis Train’s Terrible Threat. „ Omaha, Neb., Nov. 3. When the news from Washington which settled the fate of Chicago’s seven condemned Anarchists reached this city George Francis Train cried like a baby and declared his intention of leaving the United States forever. He says he will go to live in Toronto, Canada.