NO WAIVER OF RIGHTS IN CAPITAL CASES.

General Butler then referred to the assertion of counsel on the other side that the petitioners had ~~waved~~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 “subpœnæ 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.”