The arguments occupied two days, and the court reserved its decision until Wednesday, November 2. On that day the court decided, on the claim that the first ten amendments to the Constitution limited the rights of a State in the passage of laws affecting personal rights, that they “were not intended to limit the powers of the State Government in respect to their own citizens, but to operate on the National Government alone.” This had been decided more than fifty years before, and that decision had been steadily adhered to ever since. “It was contended in argument,” said the court, “that, although originally the first two 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 cannot now be abridged by a State under the Fourteenth Amendment.” The objections raised, in brief, were that a statute of the State, as construed by the court, deprived the petitioners of a trial by an impartial jury and that Spies was compelled to give evidence against himself. The statute to which special objection was made, continued the court, was approved March 12, 1874, and went into force on July 1 of that year. The claim set up by petitioners was that the trial court, acting under this law, compelled them 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 they had as citizens of the United States under the Federal Constitution, and that if the sentence was carried out they would be deprived of their lives “without due process of law.” The court then referred to the peremptory challenges allowed petitioners and held that with these the constitutional right of the accused had been maintained.
“Although a juror called as a juryman,” said the court, “may have formed an opinion based upon rumor or 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. Indeed, the rule of the statute of Illinois as construed by the trial court is not materially different from that which has been adopted by the courts in many other States without any legislation. We agree entirely with the Illinois Supreme Court in the opinion that the statute on its face, as construed by the trial court, is not repugnant to section 9 of 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.”
Speaking of the alleged bias of one of the jurors—Denker—the court says that neither party at the close of the examination challenged the juror peremptorily. “When this occurred it was not denied,” says the court, “that the defendants were still entitled to 143 peremptory challenges, or about that number.” As to Juror Sandford, the court said that “at the close of his examination on the part of the defendants the juror was challenged on their behalf for cause, and the attorney for the State, after having ascertained that all the peremptory challenges of the defendants had been exhausted, took up the examination of the juror.” It then appearing that he could render an impartial verdict, he was sworn in under the proper rulings of the court.
As to Spies being compelled to be a witness against himself, the court ruled that, inasmuch as he had voluntarily offered himself as a witness in his own behalf, by so doing he had become bound to submit himself to a proper cross-examination. But it was said that the reading of Most’s letter was not proper evidence. “That is,” continued the court, “a question of State law in the courts of the States, and not of Federal law.” Something was said about the alleged unreasonable search and seizure of the papers and property of some of the defendants, and their use in evidence in the trial of the case. Special reference was made to letters from Most to Spies, about which he was cross-examined; but “we have,” said the court, “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 therefore, “as the Supreme Court of Illinois says so, we cannot consider the constitutional question involved.”
The writ of error prayed for in the petitions and briefs filed and the arguments made on their merits was therefore denied.
The late Chief Justice Waite read the decision, and there was not a dissenting opinion, thus overwhelmingly sustaining the most important rulings made by Judge Gary and attesting the impregnable position taken by the State.
The prisoners in the Cook County Jail were now confronted with the awful fate in store for them nine days hence from the rendering of the Supreme Court’s decision. But, like drowning men grasping at straws, they turned in the direction of executive clemency. Their counsel, Capt. Black especially, entertained strong hopes of securing from Gov. Oglesby a commutation of sentence to imprisonment in the penitentiary. Steps were accordingly taken looking to that end. Petitions to the chief executive of Illinois were at once put in circulation for signatures, and friends and sympathizers of the condemned busied themselves in writing personal letters pleading for mercy.
As the day of execution approached, it was surprising to note how many, who had hitherto clamored for blood in atonement for the Haymarket massacre, now exerted themselves in the effort to secure executive clemency. With my own eyes I saw people who had made the most fuss shouting, “Hang the Anarchists! Don’t give them a chance for their lives. Destroy them at once. They must be roasted out; the balance of them must leave the country,” the first to weaken. They began calling the doomed Anarchists “poor innocent men; it is too bad to hang them. If they would only promise to do better hereafter, the authorities ought to let them go.” There were others, again, who wished to see the laws enforced, but who failed to make their true feelings known during the interval immediately preceding the day set for the execution. These, when it became almost certain that the Anarchists must hang, showed themselves very firm and openly declared that the men fully deserved hanging, and should be hanged as determined by the verdict of the jury.
Some of those who had given their moral support to the prosecution even went to the extent of giving up rooms in their residences for meetings of parties interested in imploring executive clemency, and avowed Anarchists and Socialists spread their feet under mahogany tables and shuffled dirt-laden shoes over velvety rugs in houses that had hitherto sheltered owners who, on the streets and in the marts of trade, had denounced the Anarchists in unmeasured terms. But there were those who believed, from the conclusion of the trial up to the last moment, that the law should take its course, and these were largely in the majority. Governor Oglesby is made of stern material, but the most stern and rugged natures, with the clearest perceptions of duty and the most absolute belief in guilt, would have yielded to public sentiment as being the best guide in a case involving the lives of human, fallible beings. Really public sentiment upheld the verdict, and only yielded in the abatement of the sentence of Fielden and Schwab as justified by the mitigating circumstances in their cases.
The day drew near for decisive action, and, on the 9th of November, Capt. Black, accompanied by his wife, George Schilling, Mrs. Schwab, Mrs. and Miss Spies, Miss Engel, Miss Mueller, Lingg’s sweetheart, and Mrs. Fischer, repaired to the Capitol at Springfield, to personally intercede for mercy. The “Amnesty Committee,” organized shortly before to arouse interest in preventing the execution, was represented by Cora L. V. Richmond, a noted trance-spiritualistic exhorter, and a few others of less renown. Mr. W. M. Salter, of the Ethical Society of Chicago, Gen. M. M. Trumbull, Henry D. Lloyd and S. P. McConnell also proceeded to the State capital on special missions in behalf of one or the other of the Anarchists, and besides there was a large sprinkling of labor representatives. Governor Oglesby, who had meanwhile accumulated a voluminous mass of letters and had received lengthy petitions from Chicago and all other parts of the country, even from the Commune of Paris, met the various delegations in his office in the Executive Department.