Chapter XV: Section 800: of the Revised Statutes provides that "jurors to serve

in the courts of the United States in each State respectively shall have the same qualifications and be entitled to the same exemptions as jurors of the highest court of law in such State may have and be entitled to at the time when such jurors for service in the courts of the United State are summoned."

Almost every State in the North, he said, now had its new jury law, and these laws have been sustained by the highest State courts.

THE SEIZURE OF SPIES' PAPERS.

Proceeding to the question of "unreasonable search and seizure" in Spies' office, he said it did not strike him as being any part of this case. He was not here to offer any apologies for his own conduct. He then recited at some length the circumstances of the bomb-throwing in the Haymarket, the search of the _Arbeiter Zeitung_ office, the prying open of Spies' desk, the finding of dynamite and letters there, the breaking open of Lingg's domicile, and the finding in his trunk of dynamite bombs precisely like the one thrown. Mr. Grinnell was interrupted at this point by General Butler, who said he should want to cross-examine him if it was competent for him to do so.

Mr. Grinnell--"You shall have that privilege, General."

Mr. Grinnell, resuming, said that such seizure was not a thing which this court could regulate. It had said in the Ker kidnapping case that it was not for the court to determine how he (the prisoner) got here. The court simply said: "You are here." The things seized in the search of these prisoners' premises "were there," and it was for the court to determine whether they were legally there. The only question was, "Are these things testimony?" and that was not an inquiry for the court.

SIMPLY EVIDENCE.

Forgery, murder, and other crimes had to be proved, Mr. Grinnell said, by such evidence. "The pistol found in the hand of the assassin Guiteau was forcibly taken from him, and his papers, if I remember rightly, were overhauled. They were 'there' (that is, in the court), and it was nobody's business how they got there. That the search and seizure in this case was an unreasonable search and seizure from the point of view of the defendants I have no doubt."

In conclusion Mr. Grinnell said: "It strikes us from our standpoint that the foundation of the constitution is less likely to be impaired by refusing to grant this writ than by granting it."

THE GENERAL'S INDIVIDUALITY.

After a great deal of rambling talk about the composition of the jury, dissatisfaction with the record, lack of time for preparation, the sentencing of the prisoners in their absence and that of their counsel, the injustice done them by "unreasonable search and seizure," etc., General Butler said that if all these things could be done the question was to be debated whether this government would not be a little better if it were overturned into an anarchy than if it were to be carried on in this fashion.

"I have no fear," he said, "of being misunderstood upon this question. I have the individuality of being the only man in the United States that condemned and executed men for undertaking to overturn the law. There were thousands of them. And for that act, please your honors, a price was set on my head as though I were a wolf, and $25,000 was offered to any man that could capture me, to murder me, by Jefferson Davis and his associates, and who, if they were here at your bar, trying to ascertain whether they should have an honest and a fair trial for their great crimes, and they called upon me--their lives in danger--I should hold it to be my duty to stand here and do all that I might to defend them. That is the chivalry of the law, if I understand it, and if I don't it is of not much consequence, for I am quite easily and quickly passing away."

INHERENT RIGHTS OF CITIZENS

After some further talk General Butler said he agreed fully that the first ten amendments to the constitution were limitations of federal power and not restrictions of the rights of the States. The "privileges and immunities" however, claimed by these prisoners were privileges inherent in each one of the citizens of the several States of the United States, because in vast majority we were British subjects and had certain privileges and immunities inherited under the common law and Magna Charta, and among them, and the most thoroughly known and defined were the trial by jury for all high crimes, exemption from search and seizure without warrant of law, protection from self-accusation when a witness, and not to be deprived of life, liberty, or property without due process of law. We claim that all the rights, privileges, and immunities that belonged to a British subject under Magna Charta belong to each citizen of the United States; and that as new citizens of the United States were made, not citizens of States, by naturalization, these rights, privileges, and immunities came to them as citizens of the United States. The effect of the fourteenth amendment was to guarantee these rights, privileges, and immunities to the citizens of all the States.

MEANING OF "DUE PROCESS OF LAW."

The words "due process of law" as contained in the fourteenth amendment, and as used to define one of these guaranteed rights, mean "by the law of the land," not the law of a county, a province, or a State, but the law of the country--the whole country. That is the law of the land, and was so understood by our forefathers as due process of law. Any other meaning given to "due process of law" as it is used in the fourteenth amendment would make it simply ridiculous and frivolous, because any State may enact a "due process of law" according to that State, by which a man's life may be taken and from which not a single right or immunity of citizenship can protect him. Any law a State may make after the passage of this amendment for dealing with the rights of a citizen of the United States becomes wholly inoperative, because the "law of the land" must forever remain fixed as at that moment, not to be changed in regard to its citizens without a change of organic law, and for some purposes not to be even so changed.

THE CASES OF FIELDEN AND SPIES.

General Butler then proceeded to a consideration of the special and peculiar questions raised by the cases of Fielden and Spies who are foreigners. He contended that treaties were the supreme law of the land, and that these prisoners were entitled, by virtue of treaties with Germany and Great Britain, to all the rights and privileges of American citizens at the time such treaties were made. A State had no power to try these men by one of its own laws which was not the law of the land at the time the treaties were ratified. He did not mean, he said, that a foreigner could come into a State, and break its laws with impunity and that the State could not touch him. But he did mean that the State could only try him in accordance with the law of the land--the whole land--at the time the treaty with his government was made. This, he said, was an important question to every American citizen, because in return for the concession made by this government in the treaty with Great Britain the government of that country had made similar concessions to us. Suppose that a citizen of the United States should go to Ireland and should make some remarks about the advantages of a republican form of government, and should be arrested and tried by the crimes act in violation of the treaty. Would we not stand up and say that this man must be tried by a fair and impartial jury? He must be tried as an Englishman would have been tried at the time the treaty was made, and he cannot be dealt with in a more summary way under a later law.

GENERAL BUTLER'S ARGUMENT.

If this should happen, General Butler said, he hoped that the English authorities would not be able to hold up to him a decision of the United States Supreme Court sustaining the right to try an Englishman by the local law of a State which was nothing but a swamp and a howling wilderness at the time the treaty was ratified.

Returning to the rights of States, General Butler said that he was not prepared to deny that a State might change its organic laws with the consent of all its citizens, but such change would not bind a citizen of another State who had not assented to them.

IMPARTIAL JURIES AND NEWSPAPER LIES.

After some desultory remarks about the record and the necessity of laying it before the court, and another reference to breaking open safes and desks, General Butler said: "There is no doubt that the prisoners were entitled to a trial by an impartial jury--a stupid jury, if you please--because I don't think a man who reads newspapers is any more competent to try a case--rather worse if he pays any attention to their lies." As enunciated by chief justices of the Supreme Court an impartial juror, he said, is one who "stands in freedom of mind, without bias or prejudice, and is indifferent." The petitioners were not tried by such a jury and are entitled to protection under the federal constitution.

"If" he said, "the court is to give me jurors as prejudiced as some of those in this case I had better go to a land of Hottentots, for they would not allow me to be stolen and taken back into Illinois." General Butler's allusion is to the kidnapping of Ker, referred to by counsel on the other side in defending their search and seizure.

In reply to Mr. Grinnell's statement that the records would show that the defense were more ready to take the last juror (Sanford) than the State was, General Butler said that they were compelled to accept the last juror. Their peremptory challenges were exhausted and they could do nothing else. Under these circumstances they talked to him and coaxed him, and tried to get him into a state of mind as favorable to their side as they could. That was what the parts of the record referred to by Mr. Grinnell would show, and nothing more.

NO WAIVER OF RIGHTS IN CAPITAL CASES.

General Butler then referred to the assertion of counsel on the other side that the petitioners had waived some of their rights through not insisting upon them by exception or objection at the proper time, and that therefore, they were estopped from asserting these rights now in this court. He contended, however, that when a man was on trial for his life there was no such thing as a waiver or estoppal. In capital offences a prisoner cannot waive wittingly or unwittingly anything that will affect the issue. In support of this contention he cited the opinion of Chief Justice Shaw in the case of Dr. Webster. The prisoners, he maintained, could not now be barred out because they had not raised sufficiently formal objections.

General Butler then returned again to the "unreasonable searches and seizures" complained of by the petitioners, and said his associate, Mr. Tucker, had characterized the proceeding as a "subp[oe]næ duces tecum." executed by a locksmith. "Why your honors," he exclaimed, "they searched under a burglary, headed by the State's attorney on his own admission--no miserable policeman or half-witted constable, but the State's prosecuting attorney does the burglary, steals the papers, and says you can't help that. He puts it with a sort of triumph, and yet we are told that our immunities and privileges are not invaded, and our remedy is to sue for trespass. What a beautiful remedy! Sue the State's attorney and be tried by such a jury as the laws of Illinois would give. Better be in a place not to be named for comfort."

PRISONERS ABSENT WHEN SENTENCED.

As a final reason why the writ should be granted, General Butler urged that the prisoners had been sentenced to death in their absence, and without being asked whether they had any reason to give why sentence of death should not be pronounced upon them. The record, he said, did not show that they were absent when sentenced, but they could prove it. The record showed that they were present, but they could prove by half Chicago that this was a mistake.

In conclusion, General Butler said: "May I, in closing, make one observation? If men's lives can be taken in this way, as you have seen exhibited here to-day, better anarchy, better be without law, than with any such law." General Butler then thanked the court for its indulgence and took his seat.

UNITED STATES SUPREME COURT'S DECISION NOVEMBER 2, 1887

Is as follows:

The court holds in brief: First, that the first ten amendments to the constitution are limitations upon federal and not upon State action: second, that the jury law of Illinois is upon its face valid and constitutional, and that it is similar in its provisions to the statute of Utah, which was sustained in this court in the case of Hopt vs. The Territory of Utah; third, that it does not appear in the record that upon the evidence the trial court should have declared the juror Sanford incompetent; fourth, that the objection to the admission of the Johann Most letter and the cross-examination of Spies, which counsel for the prisoners maintained virtually compelled them to testify against themselves, were not objected to in the trial court, and that therefore no foundation was laid for the exercise of this court's jurisdiction, and fifth, that the questions raised by General Butler in the cases of Spies and Fielden upon the basis of their foreign nationality were neither raised nor decided in the State courts, and therefore cannot be considered.

The writ of error prayed for was consequently denied.

There was no dissenting opinion.

The above decision of the Supreme Court was received by the condemned anarchists with coolness amounting to indifference. A. R. Parsons then handed the copy of a letter sent to Governor Oglesby to the _Daily News_ for publication, as follows:

"_To His Excellency Richard J. Oglesby, Governor of the State
of Illinois_--DEAR SIR: I am aware that petitions are being
signed by hundreds of thousands of persons addressed to you,
beseeching you to interpose your prerogative and commute the
sentences of myself and comrades from death to imprisonment
in the penitentiary. You are, I am told a good constitutional
lawyer and a sincere man. I therefore beg of you to examine
the record of the trial, and then conscientiously decide
for yourself as to my guilt or innocence. I know that as a
just man you will decide in accordance with the facts, the
truth, and the justice of this case. But I write to reiterate
the declaration made in my published appeal to the people
of America September 21, 1887. I am guilty or I am innocent
of the charge for which I have been condemned to die. If
guilty, then I prefer death rather than to go 'like the
quarry slave at night scourged to his dungeon'. If innocent
then I am entitled to and will accept nothing less than
liberty. The records of the trial made in Judge Gary's court
prove my innocence of the crime of murder. But there exists
a conspiracy to judicially murder myself and imprisoned
companions in the name and by virtue of the authority of the
State. History records every despotic, arbitrary deed of the
people's rulers as having been done in the name of the people,
even to the destruction of the liberties of the people.

"I am a helpless prisoner, completely in the power of the
authorities, but I strongly protest against being taken
from my cell and carried to the penitentiary as a felon.
Therefore, in the name of the people, whose liberty is being
destroyed; in the name of peace and justice, I protest against
the consummation of this judicial murder, this proposed
strangulation of freedom on American soil. I speak for myself,
I know not what course others may pursue, but for myself
I reject the petition for my imprisonment. I am innocent,
and I say to you that under no circumstances will I accept
a commutation to imprisonment. In the name of the American
people I demand my right--my lawful, constitutional, natural,
inalienable right to liberty. Respectfully yours,

"A. R. PARSONS, Prison Cell 29."

On receipt of the decision of the Federal Court not to interfere in the anarchists case, the doomed men were sullen. Louis Lingg, the bomb-maker, was blatant and defiant, and said to his attendants, "I will never die on the scaffold," he continued, "I hate and defy you all." A week before the execution Lingg said: "I approach my last moment cheerfully, but I will not go alone." This was significant language, and no doubt was an allusion to the fact that he intended to use the bombs, afterwards found in his cell for the purpose of producing an explosion in the jail that might have resulted in the death of scores of victims. Lingg, Engel, Fischer and Parsons refused absolutely and persistently to sign any petition to His Excellency, Governor Oglesby, for executive clemency in the commutation of their sentence to imprisonment. The following is a copy of letters from Lingg, Engel and Fischer to Governor Oglesby. They demand liberty or death:

COOK COUNTY JAIL, November 1.--An open letter to Mr. R. J.
Oglesby, Governor of the State of Illinois.

Dear Sir: I am aware that petitions are being circulated
and signed by the general public, asking you to commute the
sentence of death which was inflicted upon me by a criminal
court of this State. Anent the action of a sympathizing
and well-meaning portion of the people, I solemnly declare
that it has not my sanction. As a man of honor, as a man
of conscience, and as a man of principle, I cannot accept
mercy. I am _not guilty_ of the charge in the
indictment----of murder. _I am no murderer_, and cannot
apologize for an action of _which I know I am innocent_.
And should I ask "mercy" on account of my principles, which
I honorably believe to be true and noble! _No!_ I am no
hypocrite, and have, therefore, no excuses to offer with
regard to being an anarchist, because the experiences of the
past eighteen months have only strengthened my convictions.
The question is: _Am I responsible for the death of the
policemen at the Haymarket?_ and I say no, unless you assent
that every abolitionist could have been responsible for the
deeds of John Brown. Therefore I could not ask or accept
"mercy" without lowering myself in my self-estimation. If I
cannot obtain _justice_ from the authorities and be restored
to my family, then I prefer that the verdict should be
carried out as it stands. Every informed person must, I
should think, admit that this verdict is solely due to class
hatred, prejudice, the inflaming of public opinion by the
malicious newspaper fraternity, and a desire on the part
of the privileged classes to check the progressive labor
movement. The interested parties, of course, deny this, but
it is nevertheless true, and I am sure that coming ages will
look upon our trial, conviction, and execution as the people
of the nineteenth century regard the barbarities of past
generations--as the outcome of intolerance and prejudice
against advanced ideas. History repeats itself. As the powers
that be have at all times thought that they could stem the
progressive tide by exterminating a few "kickers," so do the
ruling classes of to-day imagine that they can put a stop
to the movement of labor emancipation by hanging a few of
its advocates. Progress in its victorious march has had to
overcome many obstacles which seemed invincible, and many of
its apostles have died the death of martyrs. The obstacles
which bar the road to progress to-day seem to be invincible,
too; but they will be overcome, nevertheless. At all times
when the condition of society had become such, that a large
portion of the people complained of the existing injustice,
the ruling classes have denied the truth of these complaints,
and have said that the discontent of the portion of the
people in question was due only to the "pernicious influence"
of "malicious agitators." To-day, again, some people assert
that the "d----d agitators" are the cause of the immense
dissatisfaction among the working people! Oh, you people who
speak thus, _can_ you not, or _will_ you not, read the signs
of the time? Do you not see that the clouds on the social
firmament are thickening? Are you not, for instance, aware
that the control of industry and the means of transportation,
etc., is constantly concentrating in fewer hands; that the
monopolists, i. e., the sharks among the capitalists, swallow
the little ones among them; that "trusts," "pools," and other
combinations are being formed in order to more thoroughly
and systematically fleece the people; that under the present
system the development of technic and machinery is from year
to year throwing more working men on the wayside; that in some
parts of this great and fertile land a majority of the farmers
are obliged to mortgage their homes in order to satisfy the
greed of monstrous corporations; that, in short, the rich are
constantly growing richer, and the poor poorer? Yes? And do
you not comprehend that all these evils find their origin in
the present institution of society which allows one portion
of the human race to build fortunes upon the misfortunes of
others; to enslave their fellow men? Instead of trying to
remedy these evils, and instead of ascertaining just what the
cause of the widening dissatisfaction is, the ruling classes,
through their mouth-pieces, press, pulpit, etc.--defame and
misrepresent the character, teachings, and motives of the
advocates of social reconstruction, and use the rifle and the
club on them, and, if opportunity is favorable, send them to
the gallows and prisons. Will this do any good? As an answer
I may as well quote the following words with which Benjamin
Franklin closed his satirical essay, "Rules for Reducing
a Great Empire to a Small One," which he dedicated to the
English government in 1776: "Suppose all their (the 'kickers')
complaints to be inverted, and promoted by a few factious
demagogues, whom if you could catch and hang, all would be
quiet. Catch and hang a few accordingly; and the blood of the
martyrs shall work miracles in favor of your purpose" (i. e.,
your own ruin).

So, I say, society may hang a number of disciples of progress
who have disinterestedly served the cause of the sons of toil
which is the cause of humanity, but their blood will work
miracles in bringing about the downfall of modern society, and
in hastening the birth of a new era of civilization. Magna est
veritas et prevalebet!

ADOLPH FISCHER.

A LETTER TO GOVERNOR OGLESBY

Dear Sir--I, George Engel, citizen of the United States and
of Chicago, and condemned to death, learn that thousands of
citizens petition you as the highest executive officer of
the State of Illinois, to commute my sentence from death to
imprisonment. I protest emphatically against this on the
following grounds: I am not aware of having violated any
laws of this country. In my firm belief in the constitution
which the founders of this republic bequeathed to this people
and which remains unaltered, I have exercised the right of
free speech, free press, free thought and free assemblage,
as guaranteed by the constitution, and have criticised the
existing condition of society, and succored my fellow-citizens
with my advice, which I regard as the right of every honest
citizen. The experience which I have had in this country,
during the fifteen years that I have lived here, concerning
the ballot and the administration of our public functionaries
who have become totally corrupt, have eradicated my belief in
the existence of equal rights of poor and rich, and the action
of the public officers, police and militia have produced the
firm belief in me that these conditions cannot last long. In
accordance with this belief I have taught and advised. This I
have done in good faith of the rights which are guaranteed by
the constitution, and, not being conscious of my guilt, the
"powers that be" may _murder_ me, but they cannot _legally
punish_ me. I protest against a commutation of my sentence and
demand either liberty or death. I renounce any kind of mercy.

Respectfully,
GEORGE ENGEL.

AN OPEN LETTER.

To Mr. R. J. Oglesby, Governor of Illinois: Anent the fact
that the progressive and liberty-loving portion of the
American people are endeavoring to prevail upon you to
interpose prerogative in my case, I feel impelled to declare,
with my friend and comrade Parsons, that I demand either
liberty or death. If you are really a servant of the people
according to the constitution of the country, then you will,
by virtue of your office unconditionally release me.

Referring to the general and inalienable rights of men. I
have called upon the disinherited and oppressed masses to
oppose the force of their oppressors--exercised by armed
enforcement of infamous laws, enacted in the interest of
capital--with force, in order to attain a dignified and
manly existence by securing the full returns of their labor.
This--and only this--is the "crime" which was proved against
me, notwithstanding the employment of perjured testimony on
the part of the State. And this crime is guaranteed not only
as a right, but as a duty, by the American constitution, the
representative of which you are supposed to be in the State
of Illinois. But if you are not the representative of the
constitution, like the great majority of officeholders, a
mere tool of the monopolists or a specific political clique,
you will not encroach upon the thirst for blood displayed
by the executioner, because a mere mitigation of the verdict
would be cowardice, and a proof that the ruling classes which
you represent are themselves abashed at the monstrosity of my
condemnation, and consequently, of their own violation of the
most sacred rights of the people.

Your decision in that event will not only judge me, but also
yourself and those whom you represent. Judge then!

Cook County Jail, 30, 10, '87.

LOUIS LINNG.

P. S.--In order to be sure that this letter will come to your
official notice, I will send you the original manuscript as a
registered letter.

L. L.