Anarchy and Anarchists / A History of the Red Terror and the Social Revolution in America and Europe; Communism, Socialism, and Nihilism in Doctrine and in Deed; The Chicago Haymarket Conspiracy and the Detection and Trial of the Conspirators

by Michael J. Schaack

“By the twelfth and thirteenth instructions, considered in connection with the eleventh instruction for the State, and also in connection with the definitions of reasonable doubt as embodied in the instructions given for the defense, we think the law upon this subject was correctly presented to the jury.

“The statute of this State provides that ‘juries in all criminal cases shall be judges of the law and fact.’ Instruction number thirteen and a half, given for the prosecution, is objected to as improperly limiting and qualifying this provision of the statute. It tells the jury, that ‘if they can say upon their oaths that they know the law better than the court itself, they have the right to do so,’ ... but that ‘before saying this, upon their oaths, it is their duty to reflect whether from their study and experience they are better qualified to judge of the law than the court,’ etc.

“The language of instruction number thirteen and a half is an exact copy, verbatim et literatim, of the language used by this court in Schnier vs. The People, 23 Ill. 17. The views expressed in Schnier vs. The People have been approved of and indorsed in Fisher vs. The People, 23 Ill. 283, Mullinix vs. The People, 76 id. 211, and Davison vs. The People, 90 id. 221. The question is settled, and we see no reason to retreat from our position upon this subject.

“It is also claimed that the court erred in refusing to give certain instructions asked by the defendants. The refusal of refused instructions numbered 3, 8, 9, 11 and 18 is especially insisted upon as error.

“Instruction No. 3 was properly refused because it told the jury that those of the defendants who were not present at the Haymarket, counseling, aiding or abetting the throwing of the bomb, should be acquitted. Under our statute and the decision of this court in Brennan vs. The People, 15 Ill. 517, the defendants were guilty if they advised and encouraged the murder to be committed, although they may not have been present.

“Instruction No. 8 was wrong for a number of reasons, but it is sufficient to refer to one: it assumes that ‘a conspiracy to bring about a change of government ... by peaceful means if possible, but, if necessary, to resort to force for that purpose,’ is not unlawful. The fact that the conspirators may not have intended to resort to force, unless, in their judgment, they should deem it necessary to do so, would not make their conspiracy any the less unlawful.

“All that was material in instructions 9, 11 and 18 was embodied in the instructions which were given for the defendants.

“The defendants also complain that the court refused to give an instruction for them which contained the following statement: ‘It can not be material in this case that defendants, or some of them, are or may be Socialists, Communists or Anarchists,’ etc.

“If there was a conspiracy, it was material to show its purposes and objects, with a view to determining whether and in what respects it was unlawful. Anarchy is the absence of government; it is a state of society where there is no law or supreme power. If the conspiracy had for its object the destruction of the law and the government, and of the police and militia as representatives of law and government, it had for its object the bringing about of practical Anarchy. Whether or not the defendants were Anarchists, may have been a proper circumstance to be considered in connection with all the other circumstances in the case, with a view to showing what connection, if any, they had with the conspiracy and what were their purposes in joining it. Therefore, we can not say that it was error to refuse an instruction containing such a broad declaration as that announced in the above quotation.

“Defendants further complain because the instruction numbered 13, which was asked by them, was refused by the trial court. The refusal of this instruction was not error. It was proper enough, so far as it stated that if a person at the Haymarket ‘without the knowledge, aid, counsel, procurement, encouragement or abetting of the defendants or any of them, then or theretofore given, ... threw a bomb among the police, wherefrom resulted the murder or homicide charged in the indictment, then the defendants would not be liable for the results of such bomb,’ etc. But the instruction is so ingeniously worded as to lead the jury to believe that the person who threw the bomb at the Haymarket was justified in doing so if the meeting there was lawfully convened and peaceably conducted and if the order to disperse was unauthorized and illegal. Counsel inject into the instruction the hypothesis that the bomb may have been thrown by an outside party ‘in pursuance of his view of the right of self-defense.’ A mere order to disperse can not be an excuse for throwing a dynamite bomb into a body of policemen. If the bomb-thrower had been illegally and improperly attacked by the police, while quietly attending a peaceable meeting, and had thrown the bomb to defend himself against such attack, another question would be presented. The vice of the instruction lies in the insidious intimation embodied in it, that when a body of policemen, even if in excess of their authority, give a verbal order to an assemblage to disperse, a member of that assemblage will be excusable for throwing a bomb, on the ground of self-defense and because of the supposed invasion of his rights.