Guy A. Aldred Archive

Pioneers of Anti-Parliamentarism
Chapter 9
Without Prejudice: A Judge's Apology

Written: 1940.
Source: PDF Scans from; OCR'ing and editing from
Transcription/Markup: Andy Carloff
Online Source:; 2021

(In telling the story of the Chicago martyrs, in a previous chapter, we mentioned the article contributed to the Century Magazine, New York, for April, 1893, by the. Hon. Joseph E. Gary, the judge who presided at the trial. Unfortunately for Gary's ravings in defense of “law and order," two months later, Governor Altgeld released the three victims of the trial who were imprisoned still. and declared that the eight Anarchists convicted were the victims of false condemnation, insufficient evidence, a packed and legally incompetent jury, and a partial judge. The following essay is an analysis of Gary's apology.)

Gary opens his apology with a magnificent appeal oi’ dramatic mediocrity to conventional respectability. His very first sentence assures one that he is thoroughly orthodox in superstition, superior to all suggestion of spiritual vision, an enemy not only of class-war agitators but of New England philosophers. His love of minor detail makes one wonder whether such accuracy was not assumed in order to conceal his deficiency of regard for more important fact. The reader would discover the path to justice. The honorable essayist loses him in the woods of accidence. But let him speak for himself :--

“On the morning of Friday, the twentieth day of August, in the year of our Lord one thousand eight hundred and eighty-six. twelve men, ranging in age from fifty-three years downward to early manhood, walked two by two from the Revere house, a hotel in the city of Chicago, to the building in which the criminal court of Cook County held its sessions. The hotel is on the south-east corner of Clark and Michigan Street, and the Courthouse was--it has been torn down to be replaced by a better—on the north side of Michigan Street, a little east of the hotel. The men were guarded from all communication with any person by a bailiff of that court at each and of the short procession which their ranks composed.”

It needs no practical judgment to realize the weighty and even pointed significance of every word in this precious piece of descriptive writing. We are impressed because the writer assures us that it was “the morning of Friday,” instead of casually dismissing the time and date as “Friday morning.” Then the event occurred in no mere “year 1886 of the Christian era”! It did not happen even in "A.D. 1886.” But it was “in the year of our Lord one thousand, eight hundred and eighty-six.” This is convincing. We conjure up pictures of Dionysus--the sixth century ecclesiastical forger who commenced the practice of dating the years after the falsely computed date of Christ’s nativity ---- and we feel certain that on so augustly described a year as that “of our Lord one thousand eight hundred and eighty-six” only sincere and truthful men could have stalked abroad! Of course, had it been only “A.D. 1880” or “the year 1886 of the Christian era” our certitude might have been less: dogmatic.

Judge Gary’s charming evidence of these twelve men’s absolute fidelity to truth does not end here. Had they walked one by one, we might have suspected them of duplicity, or have indicted them for a conspiracy to promote error. But they walked two by two! This argues a severity of mind which puts all doubt of their honesty and perfect impartiality out of the question. The name of their hotel, its situation a little west of the Courthouse, also betokens their possession of the qualities mentioned. Had it been to the east, doubt might have overtaken our good sense. Hut it was not. So all fear is put aside. Finally, they were guarded in front and behind by a court bailiff. Their procession was a veritable walking Eden, into which no devil could penetrate. He might dwell beyond it at either end. Into it, he could not go. Compared to these twelve men, the twelve apostles are puny mortals of the lowest description. Contrasted against that Courthouse-to-hotel promenade in Chicago of Gary’s famous “year of our Lord” in question, the path from Nazareth to Jerusalem was but a miserable sinner’s high- way. And it would be criminal indeed to stand further between the reader’s pleasure and the narrative of the historian of so sacred a walk!

Gary proceeds to state “the case of the Anarchists was on trial,” and that “these men"-—whom he names--“were the jurors selected and sworn to try the issue between the people of the State of Illinois and” the aforesaid Anarchists, whom he names also. He then names the counsel on both sides and mentions his own presidency as judge. The defendants were accused of the murder of Mathias J. Degan, on May 4th, 1886.

With that air of candor, never to be extolled sufficiently, Gary continues : ---

"The short journey that these Jurors were then making was the last one of the many they made over the same route; every day, except Sundays, from the fourteenth day of July preceding. they had several times each day, under like restraint by the watchfulness of the bailiff's, paced to and from between the hotel and the Courthouse: and some of them had done so from the twenty-first day of the month before. on which day the trial began. Twenty-one days passed away in selecting the jury; 981 men were called to the chairs where the jury sat, and were sworn and questioned. before the dozen who tried the case were accepted. At all times, the dozen chairs were kept full, and when a man went into one of them he became a close prisoner, not to be released until he was rejected as unfit to serve on the jury; or, if he became one of the chosen twelve, not until he and his fellows gave. the final verdict."

Here we have an excellence of incidence which is a veritable moving picture. We have no thought for the men on trial. Their sufferings are of too small moment to play any part in the “movie” before us. It is of the jury we think. What weary plodding, what devoted patience, is theirs! And yet the detail is not complete. Indeed, not to impeach the writer, but only to express a fact, his candor is‘ not devoid of a fault whose Latin description in English translation is known as the suppression of truth.

For example, Gary dwells on the length of time it took to impanel the jury. He implies that every consideration was shown to the defense, whose challenging thus lengthened the proceedings. He omits to state that, of the 981 men called to the jury chairs, only [our or five belonged to the Labor class. These were all challenged by the States’ Attorney and rejected by the judge. Gary dwells on the isolation of the jurymen from all contamination of prejudice. He omits to state that most of them declared their prejudice against Anarchists and Socialists, and that he, as judge, maintained that that fact was no evidence of their partiality. He fails to mention that one talesman stated that he had conceived and expressed an opinion that the defendants were guilty. This gentleman confessed that he was not prepared to deliver the accused to freedom, if the prosecuting evidence failed; but that he considered them so guilty, that he was not prepared to acquit them unless overwhelming evidence of their innocence was forthcoming. By exercising great pressure, judge Gary persuaded him to acknowledge that he thought “perhaps he might be able” to put this prejudice aside, and act entirely on evidence. Accordingly, Gary declared him competent. This was one of the worthies whose blessed freedom from all bias and suggestion Gary has eulogized in the passages cited.

Yet the judge who presided at the Chicago trial was an honorable man. He was an upright judge. Funny, how, with such a mind for detail, he should have omitted the few facts outlined in the foregoing comment!

Another error of omission strikes us. Gary has told us of the court bailiffs, until we look upon them as walking pillars of supremacy, cold impassive righteousness. Gary tells us the names of jury- men, prosecuting and defending counsel, witnesses, Anarchist writers and agitators, the defendants. But so great are these bailiffs, that he would seem to dread to dwell upon their names. Are they not the very guardian angels of veracity and justice? Yet one was named Henry Ryoe, and he told well-known men in Chicago that he was managing the case and knew what he was about; that these fellows should hang as sure as death, and that he was summoning only such men as jurors as would be acceptable to the prosecution !

As became a judge, Gary, penning his apology, thought it wisdom to ignore such details. He considered it dignity to compete on this wise with junior reporters handling their first “descriptive special”:--

On all former occasions when the jurors were on the street they had conversed with one another. had looked about them, at the people at the buildings, at the trifling incidents of street life. tin this morning, each man walked in silence: turning his eyes neither in right nor left. he avoided all recognition of any acquaintance who might be in the multitude that filled the street."

We will spare the reader the judge’s description of the thronged street, the concentrated gaze and painful anxiety of Christendom, and the jury’s complete ignorance of such universal interest. But we would like to know how a judge, so completely ignorant of the avowed partiality of the jurors, was so thoroughly well informed on the subject of their conduct on a street parade? Was it his function to play spy and to watch them daily? How did he know that they had conversed with each other on every former occasion? How did he know of their complete silence and hang-dog appearance of self-shame in this “morning of Friday, the twentieth day oi August. in the year of our Lord one thousand eight hundred and eighty-six? And what did such conduct—so mysteriously noted by a judge whose play was not spying from the sidewalk--prove any- way? if a sense of solemnity on this day, surely a grave want of gravity on all the former days, and an ascertained want of mental balance and judgment generally! Or was it a fear to record a cooked verdict now that the moment to act on their criminal conspiracy had arrived? Was each man ashamed to look his fellow in the face, to find the stones in mutiny, and to see shame staring at him everywhere?

The total impossibility of such an event--always bearing in mind the facts with which we have qualified Gary’s narrative is evident from the writer’s repeated assurance:—-

“The jurors had no access, either by newspapers or conversation, to any source of information. being at all times either in court, in a room set apart for them in the Courthouse, in a suite of rooms at the hotel, or in a body taking exercise on the streets: and, always, when not in court. guarded by bailiffs. The counsel engaged in the case were fully occupied, when out of court. preparing for the work next session. I rend the papers very little, and declined all conversation upon the subject which occupied my business hours."

This passage convinces us that Gary would have made a for- tune as the writer of detective stories. Perhaps he did write some oi the five and fifteen cent editions of Nick Carter, published so widely by Messrs. Street and Smith of New York. Or else, he may have contributed to the wonders of the magic circle, and have in- spired secretly the apparently miraculous impossibilities with the performance of which the audience at the London St. George’s Hall were wont to be charmed. Anyway, there can be no doubt that Gary, in writing his apology, was chuckling at his ability to state a mystery: to dwell on unimportant circumstances whilst concealing essential fact: and to urge the poser: “Ladies and gentlemen, the thing was done, you see it was impossible of accomplishment. Say. how did it happen?"

W hen the author of a detective novel assures us all his characters are innocent, we enjoy the situations because of its delicious falseness. When Deviant shows us that his tricks are performed without trickery we applaud his splendid insincerity. When Gary explains how utterly impossible it was for a biased jury to be prejudiced whilst watched by corrupted bailiffs, we like hugely the wit of the man. But we want laughter without tears, and comedy unrounded by tragedy. The Chicago business was hardly that. A judge cannot be expected to note the difference.

Gary proceeds to define the dimensions of the Courtroom, and the situation of galleries. He mentions that he kept these closed and empty except upon one afternoon, the events of which he details later in his narrative. He adds, how, at the beginning of each session. he announced that no person would be permitted to stand in the Courtroom, except in the way of duty; that no one could lounge on railings, or on the arms of seats, but that every spectator must be down in a seat, or leave the room. Also that there must be no talking, whispering, or laughing, or any token of approval or censure.

Truly, a just judge come to deliver judgment! But watch the sequel :——

“Reluctantly, when Mr. Grinnell was about to begin his closing argument to the jury, at the solicitation, without his knowledge, of many of the bailiffs in attendance, and upon their assurances that they could prevent all disorder, I permitted the galleries to he opened. As soon as people began to enter them, I received a note- from Mrs. Black, wife of the leading counsel for the defense-—she being constantly in attendance———stating that many persons had desired to hear his speech and had been prevented, as they could not get into the Courtroom, and risking if I thought it was fair to open the galleries for an audience that had been excluded when her husband spoke. I recognized the justness of her complaint, and, calling Mr. Black to the bench, showed him the note of his wife, and offered to clear the galleries and to shut them up again if he preferred that it should he done. He thought it not worth while. but the event showed how unwise it was to open them."

Grinnell was the State Attorney, and the gallery is opened to admit an audience to hear his speech at the request of the bailiffs admittedly——though Gary conceals the fact—opposed to the defend- ants. The judge consents, though he confessed to have kept out any audience that wished to hear Black, the leading attorney for the defense, speak. In all this conduct there was no intentional partiality, not even judicial tactlessness. When Mrs. Black re- marks on the unfairness, Gary is not turned from his purpose. He achieves it, by throwing the onus of deciding on the man he has treated wrongly, feeling sure that the latter thus challenged, must generously give way to the injustice. Seven years later, writing an apology for his conduct, Gary follows up a complacent record of his infamy by affecting to discover the unwisdom of his own conspiracy. The event to which he refers above is described thus in the paragraph which follows immediately:--—

“During his speech, Mr. Grinnell made some impassioned exclamation—I do not recall the words—-to the effect that nobody feared Anarchists, at which a storm of applause broke out in the east gallery. A futile attempt was made to discover who began it, and after some delay Mr. Grinnell proceeded without further interruption."

Consider the circumstances and character of the applause, and then say, if you can, that you are surprised at learning of the futility of the attempt to discover the source of the applause? In other words, the court confesses, through the medium of Judge Gary’s apology, that the only occasion on which the gallery was open, it was, like the jury, “a packed” affair.

Gary’s article dwindles down to a yellow press pot-boiler. We do not propose to follow him in his quotations from the Alarm, the Arbeiter, or Die Fackel, the speeches of the defendants, or the writings of Most or Bakunin. These questions of reform versus revolution, of violence or nonviolence are of too general and too important an interest, to be considered as attributes of Gary’s vision. They are fundamental like justice: whereas he is incidental like his office. Our concern has been to air his judicial understanding of the nature of prejudice. That done, the present laborer’s task is ended.