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 kidnapingkidnapping 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 wavedwaived 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.”
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.