Show THE WRIT OF ERROR Asked for in the Condemned Anarchists Behalf IN THE U S SUPREME COURT The Arguments of Hon J Randolph Tucker and AttorneyGeneral Hunt of Illlnolg The Anarchists W ASH GTON Octobr 27 Anticipation Anticipa-tion of the arguments before the United States Supreme Court today upon the petition for a writ of error in the Chi caeo Anarchists cade attracted to the capitol a crowd of eager people who seemed as anxious to gain admission to the court room as if the Anarchists i themselves were to be presentin chains and to argue their own case in person More than an hour before the court assembled as-sembled the court room was densely packed witn people Even out in the corridor there was a crowd endeavoring to at least get a glimpse of the interior of the court room The audience was destined however to be at least for a time disappointed When the court was called to order at noon and the candidates for admission to the bar had been sworn tho Chief justice announced that the court would proceed with the unfinished business of yesterday About 1 oclock Mr Tucker opened the argument in support of the petition peti-tion He said it was not necessary for him to show as conditions precedent to the granting of the suit that the action complained of in the court below was actually repugnant to or in violation of the Constitution It was only neee sary to show that a conflict had arisen that there was a question whether the action complained of was not repugnant repug-nant to the Constitution that was enough to give this court jurisdiction It was not necessary to show repugnancy but only a conflict 1C there is a conflict con-flict then this court has jurisdiction and if it has jurisdiction then the petitioners are entitled to the writ as aright a-right The policy of this court he said had been known to deal liberally with petitions for writs of error in civil cases How much more should it deal liberally with a petition for a writ of error in a criminal case involving the issue of life and death in a case where life was about to be Uken away in violation vio-lation of the Constitution Proceeding then to the merits of the case Tucker said it was not necessary that a law of a State should be absolutely abso-lutely and on its face unconstitutional in order to give this Court jurisdiction 1 of the case under it If a law seemingly seem-ingly fair and just on its face should have put upon it by State courts a construction con-struction contrary to the Cons itnloa that was enough to give this Court jurisdiction Tucker then reviewed the history of the adoption of the fourteenth amendment amend-ment and said although it was originally origi-nally intended to guarantee particularly the rights of enfranchised blacks there was 110 reason why white citizens should not eujoy the benefits of its provisions Tucker quoted the fourteenth amend menr ma11 and t iacussed the meaning of the words due process of law and said that although it had been held by ti3 Goi tt that trial without indictment indict-ment by a grand jury j might be due process of law ana might be perfectly constitutional it has never been held or intimated that trial by petit jury could be dispensed with It seemed he said to be everywhere conceded that due process of law required a trial by a jury of ones peers It is essential that the jury should be unbiased unprejudiced un-prejudiced and impartial and that it should not be a class jury Tucker then asserted that the jury law of Illinois Illi-nois was unconstitutional in that it provided that the forming of an opinion from reports or newspaper accounts of certain transactions should not necessarily disqualify 3 person having such opinion opin-ion tooi siting in judgment of that transaction as juror Even although al-though the law might seem to be fair and just if by construction and administration ad-ministration it were made to deny to prisoners the right of trial by a fair and impartial jury then such construction construc-tion and administration constituted law and made it unconstitutional The construction given to the law in this case was different from construction given to it in a large number of other cases in the same State He then referred to the objection made by the defense at the trial to tne rulings rul-ings of the Court in the matter of challenges to the refusal oi he Court on the motion for a new trial to hear I the evidence going to shown that the bailiff hnd dd that the men he had selected for the panel would te certain to hat gaid to various older rulings and decisions of the trial court which had the effect of denying to the prisoners prison-ers a fair trial by an impartial jury Turning then to another question raised by the case which he said was a new one in this court he quoted the second clause ot toe fourteenth amendment to the effect that no State shall make or enforce any law which shall abridge tho privileges or immunities of citizens of the United States Among the privileges and immunities thus granted by the fourteenth four-teenth amendment were he continued those set forth in the first ten amendments amend-ments to the Federal Constitution It has been maintained he said that these first ten amendments to the ConsiIiUiion were limitations of Ftderal power only but it was his belief be-lief that unless the privileges and immunities im-munities were specifically said to be merely limitations of Federal power they were privileges and immunities which came within the purview of the fourteenth amendment and were guaranteed guar-anteed by it Chief Justice Waite Then you aouKl or ng all questions to thIS 0 urt I cannot conceive of any qUfstion which canto be brought here if the Fourteenth Amendment makes the privileges and immunities to which it refers include all those of the filet ten amendments Tucker said he would admit it was anew I a-new question but he should like to argue it Now I make the assertion said Tucker that the right to be exempt ex-empt from unreasonable searches and seizures the right of freedom of speech the right of citizens against selfaccusation and the right of the citizen not to be twice tried by a jury are s cured to him by virtue of the Constitution of the United States Beinz so the fourteenth amendment comes in and says No State shall make or enforce any law which abribges the rights or privileges of citizens Turning to the action and rulings of the trial Wart Mr Tucker said Defense De-fense were driven to peremptory chal vlenges in order to exclude jurors who should be exempt for cause and thereby was the limitation of right of peremptory challenge which this Court has held to be one ot the highest privileges of the prisoner The last tour jurors said Mr Tucker were I put upon us after our peremptory ctial hinges had been exhausted In one case Juror Denker we objected distinctly dis-tinctly upon the ground thai the ruling of the Court was in violation of the Constitution Tucker then referred to the seizure of letters private papers etc and their use as evidence and said this wad in violation of the fourteenth amendment In conclusion Tucker said We have the right in my judgment to the I writ and to be heard on the questien whether the Constitution has been violated lated in order to compass the conviction of these men It is true they arc said to be Anarchists but they are men and a > e entitled to the same protection as Ism I-sm I know no anarchyabroad in this laud whiuti the American people need fear except anarchy in the administration administra-tion of justice I pray the Court will tfoereiore award this writ for if I do not mistake there are evidences in the whole record which will demand a reveisal of judgment HUMS ARGUMENT I AttorneyGeneral Hunt then addressed ad-dressed the Court in behalf of the State and in opposition to the motion for the writ of error To warrant the issuance the writ it must appear he said from the record first that there is a Federal question involved and second that such a question was raised and decided in the State Curt He was not as well informed as he would like to oe in regard to the exact points upon which counsel for the petitioners relied In the first part of he argument of Mr Tucker he planted I litnelf squarely upon the rights which i belonged to his clients under the fourteenth amendment but in he latter part he changed ground slightly and insisted that the first ten amendments were deolaratioas of individual rights and nen that they were all comprised in he provisions of the fourteenth amendment amend-ment Tue AttorneyGeneral opposed this view and said So far as the petitioners peti-tIoners rely upon anything din d-in those amendments tkv can have no tmding in this Court The our tee nth amendment is equally loreign to any right privilege or immunity here claimed by the petitioners The record will show that toe complaint is not that the State made or is enforcing the law which deprives the petitioners of any of the privileges or immunities g laranteed by that section but that uey are deprived of rights by an erroneous erro-neous construction of the law placed upon it by the trial court of the State The petitioners did not claim in the Juoreme Court of the State that the Uinois act of 1881 was repugnant to the Constitution treaties or laws of the United States nor that the authority of the Court was exercised under it but that the act was constitutional constitu-tional and valid and the Court exercised its power in violation of that law The petItioners were tried in the courts of the State under the laws of the State and that constitutes due process of law It ia not material that this or another Court might have ruled litterently under the law due process of law means the law of the land Mr Hunt then cited the case of Presser vs the State of Illinois re arding the militia laws of the S ate ThIs decision forecloses and bars out the contention of counsel that the rights contemplated in the language of the first ten amendments were included iu the fourteenth amendment and extended tended especial guarantee and immun ities to the citizens of the United 8I1es AttorneyGeneral Hunt then turned his attention to the Constitutional provision pro-vision that no State shall deny to any person equal protection of the laws and submitted to the Court that the equal protection of the laws and privileges and immunities contemplated contem-plated by the amendment were only those for whose enforcement enforce-ment Congress had provided by subsequent legislation and having acted Congress has exhausted the subject until it chooes to take it up apain Turning to the composition of the jury in the trial court the Attorney General said he did not see how the personnel of the jury who tried the petitioners in this case could properly be submitted to the Court or considered bv it in the present proceedings This inquiry must be made as to I he constitutionality of the jury law of the State of Illinois and not as to how the State court may have construed that law The record showed he believed that on the challenge chal-lenge of one juror the suggestion was made by one of the counsel for the prisoners that there was a provision in the Constitution of Illinois as well as in the Constitution of the United states guaranteeing to every person trial by an impartial jury The person at whose challenge that suggestion was made did not finally sit in the jury that tried the case He would submit that in order to give the parties a standing in the court the suggestion or objection must have been made with regard to the juror who actually tried the case or that by reason of the exhaustion ex-haustion of their peremptory challenges chal-lenges the petitioners were compelled to accept an incompetent juror and were thereby irreparably damaged This question was never raised with regard to the juror who did actually sU P th it case The Chief JnstieeWa3 it not raised in Sanfords case 1 think it is I I t shown in the memorandum which we have that it was raised as to Sanford Mr Grinnell interruptingIf the Court please the memorandum is not a fair transcript of the record After some colloquy the Chief Justice Jus-tice directed that all parts of the record relating to the question thus raised should be printed and submitted to the Court tomorrow AttorneyGeneral Hunt resuming once more referred to the fact ttiat the jury law of Illinois was not attack d by counsel on the other side m me State Supreme Court They stated there he said that they did not think it necessary neces-sary to attack the constitu ionality of the law because it may be given a construction con-struction which would mane it unob ipptinnnhln J Mr Hunt believed it to be well settled set-tled and established that this Court will not review the decision of the Supreme Court qi a State as to the construction to be given to its own Constitution and its own laws He then spoke for some time of the jury law which he said has been corn lion la wall over the United States The Illinois laws were substantially the same as those o New York Michigan Arkans iO Colorado and Nebraska Re ceutchanges in the jury laws of the states had for the purpose laud object the procurement of a better class and more intelligent class of men as jurors Is it possible tor AttornevGeneral asked that the States are to be so bound by the Federal Constitution that they cannot change their jury laws in accordance with the changing conditions of their social and political life He noped the Court would maturely consider the farreaching consequence of the construction which the petitioners petition-ers desired to have Riven to the four teenth amendment As to the allcg unreasonable search and seizure Mr Hunt said he would like to know how a criminal instrument instru-ment of crime could be legally taken from him He knew of no process by which it could be done if they were his own The question for the Conrt however how-ever was not how was the posstio J of these taings obtained but rather whit do they prove The AttorneyGeneral cited tho recent re-cent case of Ker brought back from South Amerca without extradition The Court held that the questi m was not How did you get here but Are yon guilty 7 The AttorneyGeneral then to5 i p he case of the prisoners lelden and Spies and said he understood that it would be urged by counsel on the oher sde that they being foreignersFielden an Eng shrnan and Spies a German were protected by the treaties between he United States and their respective government and that they would have immunity because the treaties provided that citizens ot England and Germany living ID the United S ates should have all the rights and privileges guaranteed by law to citizens of the United Stat sat s-at the tim thn treaties were ratified The Chief Justice In what respect is it said that tuis violates the citizen ship of Great Britain General Butler They were to have all the privileges of Americans at the date of the treaties and among thou uileges we contend was trial ny jury under the laws then in force No law could be passed to change their condi tion under the organic law the highest law lawAt AttorneyGeneral Hunt replied that if this were so then the prisoners without being citizens were privileged persons above the laws of the State which they set at defiance At this point the hour for adjournment adjourn-ment arrived and further argument was postponed until tomorrow |