pages 296 to 307
MARTIAL law declared in Colorado.
Habeas corpus' suspended in Colorado.
Free press throttled in Colorado.
Soldiers defy the courts in Colorado.
Wholesale arrests without warrant in Colorado.
Union men exiled from homes and families in Colorado.
Constitutional right to keep and bear arms questioned in Colorado.
Corporations corrupt and control administration in Colorado.
Right of fair, speedy and impartial trial abolished in Colorado.
Citizens' Alliance resorts to mob law and violence in Colorado.
Militia hired to corporations to break the strike in Colorado.
For the publication and distribution of foregoing flag by the Western Federation of Miners, President Moyer was arrested and held in the "bull pen" or jail over one hundred days. The flag was a mere pretext for holding President Moyer, the Mine Owners' Association hoping that with Moyer behind the bars the cause of the strikers would be weakened. Every possible effort was made by the W. F. M. attorneys to have Mr. Moyer either brought to trial or released on bond, but without avail. This finally led to the famous habeas corpus proceeding before the state supreme court, which resulted in the majority of that body handing down a decision giving despotic power to a governor in America, heretofore enjoyed only by rulers of absolute monarchies.
Is Colorado in America? If you consult the map you will find it there. If you read the facts in this recent industrial struggle in the light of American history and traditions, you will find nothing to recall memories of our country's youth or the hopes that led strange people across the sea to stretch wider the boundaries of a land where none were so strong as to be above the laws and none so weak as to be beneath their protection. There is nothing in recent history, save by the way of contrast, to recall the fact that ours is the Centennial state marking more than one hundred years of progress under the idea that ''all men are created free and equal with certain inalienable rights, among these are life, liberty and the pursuit of happiness."
It is an unpleasant awakening from thoughts like these to a realization of such facts as were inscribed upon a symbol of the flag and burned into the hearts of thousands of Colorado's citizens.
Desecration of the flag? Was it not the deeds done under it and not the truths inscribed upon it that constituted the desecration?
Moyer was arrested on the 26th day of March, 1904, at Ouray, and taken to Telluride, charged with desecration of the flag. He was released under $500 bond only to be immediately re-arrested by the military authorities. A warrant was also sworn out charging Secretary-Treasurer Haywood with the same offense, but before it was served a similar one had been sworn out in Denver and Haywood remained in custody of the Denver officers. Governor Peabody, when interviewed concerning the re-arrest of Moyer, disclaimed any knowledge of the facts, but stated that it was the intention to rearrest Moyer every time he secured his release on bonds.
When the state, in order to secure the conviction of a prisoner or his detention, must violate the laws and regular procedure in such cases, it must be because it lacks the evidence necessary to the conviction of a crime or the fact of crime itself is wanting and the state desires not the administration of law, but an abortion of justice.
The return for the petition of the writ of habeas corpus was made returnable on April 11th. There was no answer to the petition nor return of the writ; the court considered the petition confessed and the facts therein stated to be true, ordered the release of Chas. H. Moyer and commanded that an attachment issue against Sherman Bell and Bulkely Wells in the sum of $500 for contempt of court.
The military defied the civil authorities, and the case was taken to the Supreme Court in Denver before which Moyer was brought on April 23d.
A clash occurred between Secretary Haywood and the military upon Moyer's arrival in Denver. Haywood went to greet Moyer at the depot; he had just grasped his hand and started to walk along with him when Captain Wells stepped forward attempting to push the two apart; Haywood turned; it seems uncertain whether he struck at Wells or not; at the same instant a trooper struck Haywood with the butt of his rifle, he fell and in an instant almost the entire military detail were on top of him, and those who could not get on top were endeavoring to use their guns.
Mr. Haywood made the following statement: "The detachment walked me up the street to the Oxford hotel. Wells told off the soldiers, and a detail was instructed to take me back into the recess. I was standing where I had been ordered, when someone commanded me to sit down. I replied that I did not want to sit down. Then he drew his revolver and attempted to strike me on the head.
"Ten or twelve soldiers crowded around me, and nearly all of them, so far as their cramped position would allow, were trying to jab or strike me with their guns. Several had their guns leveled and would probably have fired upon me, but some officer whom I did not recognize, said: 'Don't shoot him, don't shoot him.' By this time Walter Kinley, who was one of the nearest to me, got room to swing his arm, and struck me over the head with his heavy revolver, knocking me down the steps that lead to the basement. When I came up, the officer told the men to fall back. Extremely weak and exhausted from loss of blood from this murderous attack by the military, I sank into a chair, while further negotiations for my disposal were pending."
Haywood's wounds consisted of cuts and contusions necessitating the service of a physician.
For a time it seemed that there might be a conflict as to who should hold Haywood, the military or the local authorities; it was finally decided in favor of the local authorities.
The attitude of the prosecution was very concisely stated by Attorney Waldron in his opening remarks before the supreme court:
"The writ which your honor issued required the production of Chas. H. Moyer before this court. The executive and respondents have produced the body of Mr. Moyer, not because they recognized the court's power to interfere, but on the contrary, they expressly deny at the very outset that this court or any other tribunal in this state has power to interfere while insurrection has not been suppressed. But bearing in mind the respect which the chief of one branch of government should show to another branch, they have produced the body of Mr. Moyer. He is now in charge of the officials of the National Guard of Colorado."
It may be worth while to briefly note the history of the habeas corpus act that we may understand the significance of the governor's attitude.
In English-speaking countries men have been so long accustomed to constitutional safeguards that, for the moment, they hardly realize what it means to have them swept away. Safeguards that the wisdom and struggles of the centuries had reared against the invasion of personal liberties. Men dreamed that they were potent to protect all that the past had bequeathed and preserve it as a part of the inalienable right of the humblest man. They reckoned without a knowledge of the forces contending against them. They were sufficient to curb the caprice or passion of governmental power in the hands of a despotic king or liberty-loving president, but they seem ineffective as against the greed of corporate wealth, blindly seeking to destroy whatever limits or seems to limit its profits.
The history of the writ, like many another of today, is lost in the mists that veil the cradle of civilization. It was known to the Romans when they first visited and conquered the skin-clad savages of Britain. The Saxons brought it from the shadowy glades of their native forests. When the Conqueror parceled out the lands of England among his followers and substituted the power of the Norman sword for the immemorial rights of Saxon freemen, he could silence but he could not kill a people's aspirations, aspirations that one day achieved historic recognition. From the day when the barons and common people humbled old King John on the field of Runnymede down to the present it has remained the mightiest bulwark of Anglo-Saxon liberty, the most precious jewel in the crown of a people's strength. The conflicts, oppressions, tyrannies of seven hundred years have but broadened its base and endeared its guaranties to freemen, the waves of despotism have dashed over it but the absolutism of kings has not displaced it, and parliaments have rarely limited its operation.
When our forefathers landed on these shores, they brought with them the rights of Englishmen; when denied those rights they rebelled. In framing the constitution they remembered the ancient writ in words that can not be misunderstood: '' The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The provision in our state constitution is practically identical.
Chief Justice Marsh said of the conditions under which the writ might be refused:
"If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States it is for the legislature to say so."
Chief Justice Story said:
"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether exigency had arisen must belong to that body."
In an opinion as attorney-general of the United States, Caleb Cushing said:
"And it may be assumed as a general doctrine of constitutional jurisprudence in all the United States that the power to suspend laws, whether those granting the writ of habeas corpus or any other, is vested exclusively in the legislature of the particular state."
The author has no ambition to write a law book; a volume could be compiled further illustrating and elucidating the principles involved. Still other constitutional guaranties were violated by the action of the governor and the decision of the court.
The reason assigned for the denial of the writ of habeas corpus was the governor's proclamation declaring San Miguel county to be in a state of insurrection and rebellion. That there was a strike, a refusal to work until the constitutional amendment granting the workers in the mines, mills, etc., an eight-hour day, is not denied. But since the emancipation proclamation of President Lincoln there is no class who are bound to work for another class on any terms the latter may prescribe with the obligation on the part of the government to compel the acquiescence of the workers. To constitute a rebellion there must certainly be armed resistance to the lawfully constituted authorities, which they are unable to put down except by force of arms, and the deeds of some individuals at least must have been so notorious as to furnish ample evidence for their punishment. At the November term of court in San Miguel county every case against the members of the union for crimes alleged to have been committed, was stricken from the docket on the motion of the prosecution. It was not because they did not deserve a conviction. No man prominent in the union had left the county except upon compulsion of men acting under the authority of the governor or with his connivance. They sent no man from the district whom they could have sent to prison.
It takes more than a proclamation to make a rebellion. Even Governor Peabody can not call a revolt into existence as the Almighty God did light.
After stigmatizing a class as criminals in his proclamation, he further states:
"That these forces within and without said county are about to join forces within said San Miguel County, for the purpose of destroying property and inflicting personal injuries upon the citizens of said county."
"A guilty conscience makes a coward heart."
The second proclamation declaring martial law was in answer to a petition by the Citizens' Alliance of Telluride. The larger part of the petitioners, practically all of them, were participants in the mob that drove eighty-one men out of the county. There is no color of law in that action, though the governor had made things extremely convenient for the mob. When sixty-eight of the men returned, they were re-deported by the military whom Peabody had sent into the district to maintain "law and order." A deed done for another without his approbation, but afterward adopted by him, becomes to all intents and purposes his deed, as if he had originally authorized it. Peabody, by sending the troops to maintain the results the mob had accomplished, indorsed their work, and, by the principles of law, (principal and agent), stands forth as the sponsor for, and the principal in, a crime whose enormity is only exceeded by the one committed against everyone in the suspension of habeas corpus on the word of a man who has sworn to execute the laws, performs his duty by the suspension of them.
During the entire period of martial law a rigid censorship of the press, telegraph and telephone was maintained. There is but one reason for a censorship, whether in Russia or Colorado, and that is that the world may not know the crimes committed against humanity in the name of law.
This itemized statement of crimes committed against free institutions by the governor and those acting in accord with him may well be closed with an extract from the executive order sending the troops to Telluride:
"Report forthwith to the sheriff of San Miguel County, Colorado, and that you use such means as you may deem right and proper, acting in conjunction with or independent of the civil authorities of said San Miguel County as in your judgment and discretion, conditions demand, to restore peace and good order in said community, and to enforce obedience to the constitution and laws of the state."
Ostensibly the purpose of the troops was to restore such conditions as would enable the civil authorities to bring offenders to justice, for the constitution says: '' the military shall always be in strict subordination to the civil power." Yet one of their first acts was to defy the order of the court releasing Moyer and the attachment against Bell and Wells.
The constitution further states, Article 2, Section 7:
"That the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures."
Yet it was the military who searched the persons and baggage of the returning miners, robbed them of everything of value, denied them the privilege of even greeting their wives and children, took them out of the county, violated their homes and inflicted every indignity a senile soldiery could conceive. Five of the men were detained and put to work on the streets. J. C. Burns refused to work. The guard threatened to shoot him. "Shoot away,'' he said. The threat was ineffectual; he was taken to the jail, put on a bread and water diet and later, again deported.
In a battle of principles, we sometimes forget the men involved; we only hear the cannon's roar or hear the bugle call; only see the pall of smoke, "funeral wreath of a world"; the plunging horses, the fierce, tense faces of the combatants, the windrows of the dying and the dead. The spirit of conflict rages in our veins; its pathos is lost to us. We do not hear a brother's last broken prayer nor the death rattle in his throat; we do not see the desolate homes and the anguished hearts that that day's work has made. In this weary world when a blow is aimed at a man it usually falls on a woman's naked heart. Moyer was a sick man, suffering from throat and lung troubles; the filthy atmosphere of the jail is not conducive to recovery; once when he requested that his cell be cleaned the hose was turned on him. He was jeered at, maltreated that in a fit of anger he might give his guards an excuse to murder him. At the close of his trial before the supreme court he was brought out past his wife, he stopped and extended his hand, but Wells, who was behind him told him to "move on." The court denied the writ, Judges Campbell and Gabbert concurring. A paragraph from their decision is given:
"The arrest and detention of an insurrectionist, either actually engaged in acts of violence or in aiding and abetting others to commit such acts, violates none of his constitutional rights. He is not tried by any military court, or denied the right of trial by jury; neither is he punished for violation of law, nor held without due process of law. His arrest and detention in such circumstances are merely to prevent him from taking part or aiding a continuation of the conditions which the governor, in the discharge of his official duties and in the exercise of the authority conferred by law, is endeavoring to suppress."
A few remarks from Justice Steele's dissenting opinion follows:
"I know of no authority that vests in the governor the power to arrest one who he may think will commit an offense. No such power is granted by the Constitution nor bestowed by statute. The courts of the state are open and in the unobstructed performance of their functions. Most persons would regard restraint of liberty for the period of nearly ninety days as a punishment; and when the court says that the petitioner, by his detention, loses none of his constitutional rights, it ignores, it seems to me, that section of the Constitution which provides that no person shall be deprived of his liberty without due process of law. For, suppose it should transpire that the petitioner is not guilty of any offense, would not his imprisonment without charge and for the purpose of preventing him from committing an offense be an injustice? The court has presumed that this man is an insurgent; the presumption of law is that he is innocent. He asserts that he is not guilty, and no one has charged that he is guilty. The only statement made which in any way implicates him Is that of the adjutant general, who says that he became convinced by inquiry that he was the leader of a band of lawless men.
"When we deny to one, however wicked, a right plainly guaranteed by the Constitution, we take that same right from everyone. When we say to Moyer: "You must stay in prison, because if we discharge you you may commit a crime," we say that to every other citizen. When we say to one governor: "You have unlimited and arbitrary power," we clothe future governors with that same power. We can not change the Constitution to meet conditions. We can not deny liberty today and grant it tomorrow; we can not grant it to those theretofore above suspicion and deny it to those suspected of crime; for the Constitution is for all men—"for the favorite at court; for the countryman at plow" —at all times, and under all circumstances.
We can not sow the dragon's teeth, and harvest peace and repose; we can not sow the wind and gather the restful calm.
Our fathers came here as exiles from a tyrant king. Their birthright of liberty was denied them by a horde of petty tyrants that infested the land—sent by the king to loot, to plunder, and to oppress. Arbitrary arrests were made; and judges, aspiring to the smile of the prince, refused by "pitiful evasions" the writ of habeas corpus. Our people were banished; they were denied trial by jury; they were deported for trial for pretended offenses; and they finally resolved to suffer wrong no more, and pledged their lives, their property and their sacred honor to secure the blessings of liberty for themselves and for us, their children. But if the law is as this court has declared, then our vaunted priceless heritage is a sham, and our fathers stood "between their loved homes and the war's desolation" in vain.
President Moyer was taken back to Telluride and lodged in jail. On June 15th, the military authorities delivered him to the sheriff. An hour later he was re-arrested on a warrant sworn out by Deputy Sheriff Runnels charging him with having committed murder in San Miguel county on or about October 15th, 1903. The party alleged to have been murdered was not mentioned. He was held two days on this charge and then surrendered to the officers of Teller county on a warrant charging him with complicity in the Vindicator mine explosion. It might be mentioned that the prosecution have dropped every case ever brought against him.
A tale hangs upon the release of Moyer by the military authorities; a revelation in acrobatic mendacity performed by the gubernatorial accident in his endeavors to keep the puppet crown placed on his head by the mining interests of the state from too rude contact with the law. After the adverse decision of the supreme court, application for the writ was made in the federal court at St. Louis, before Judge Thayer. When he commanded that Moyer 's body should be brought into court, Peabody ordered his release before service could be had.
The facts are so well stated in an editorial of the Denver Times that it is worthy of being reproduced here:
"Neither the good Lord nor good people like a prevaricator, especially if his prevarications relate to public matters. It will be noticed that pains are taken not to use the good old English word that expresses more distinctly the kind of man that is in mind. The reason is that the governor of Colorado is in and respect for the office he holds proves a wholesome restraint. Now Governor Peabody has been doing his dead level best, since yesterday at 4 o'clock, to convince the credulous that the action of Judge Thayer at St. Louis, had nothing to do with his order withdrawing martial rule from San Miguel County and the turning of Moyer over to the civil authorities. But to give this attempt an appearance of even seeming plausibility has required such windings in and windings out that the prevarication hangs over every outer bend of the serpentine procedure. It would be too tedious a matter to follow out every footprint of the governor's retreat. For illustration he said never a word yesterday to the reporters about the matter, until after Judge Thayer's action became known. Reporters for the afternoon papers haunt the executive chambers for fresh news items every forenoon. Again the people of Telluride and Captain Wells, the governor's commander at that strategic center, received notice first of Judge Thayer's order and then of the governor's action. But the statement in the Republican (Denver), of times and purposes as given by the governor himself is such a mass of quibbles, notice that the good old English word is not yet used—that well, the governor should be ashamed of the showing himself. The Republican, after assuring its readers that the order to turn Moyer over to the sheriff had been 'phoned to the commanding officer at Telluride at 10 a. m., proceeds to relate how, because of the news from St. Louis, the governor contemplated withdrawing his order until he should hear directly from the court. This is the Republican's story:
"The governor considered abrogating martial law until after he had heard from the Federal Court, but this was impossible for the reason that he had ordered the prisoner turned over by telephone in the morning. He consulted with Attorney General Miller on the subject and was advised that if the order had been put into actual effect before the time specified in it, nothing could be done to stop it."
"Now what are the facts as to the time the order about Moyer was telephoned to Telluride? The Times called up Captain Wells, the military commander at Telluride, and put the question to him direct: At what time did you receive the telephone order to turn Mover over to the civil authorities?"
To this Captain Wells gave the explicit answer:
"Between 3:40 and 4 o'clock this afternoon."
"Like a good soldier Captain Wells immediately on receipt of the order, carried it out and at 4:15 o'clock in the afternoon escorted him from the military prison to the jail of the county and delivered him to the sheriff.
"From this it is perfectly apparent that the story quoted from the Republican is hot air. Governor Peabody should cultivate not only truthfulness, but moral courage. He should be willing to admit the true cause for an official act. At least he should not give out a false one."
The measures taken by the governor show that he found the action of a court that took its law from the sources of American jurisprudence, not at all in accord with his ideas. The decision of the Colorado court is in striking contrast with our ideals. As Judge Steele said: "But if the law is as this court has declared, then our vaunted priceless heritage is a sham and our fathers stood 'between their loved homes and the war's desolation in vain.' "
In obtaining the decision from the supreme court of Colorado, it is said Peabody's head swelled several inches and in self-exaltation he added an additional red carnation in his buttonhole boquet. His attitude seemed to say: "Who so great as I ?" Three great presidents of the United States tried to suspend writs of habeas corpus on occasions during their administrations, but their action was never sustained. With the grin of an ape on his insignificant countenance, Governor Peabody, of Colorado, the one-horse country banker who prostituted the office of chief executive of the state to the basest uses as paid agent of the Mine Owners' Association, boasted that what the supreme court of the United States had refused to do for the three greatest presidents the world ever knew, had been done for him and his owners by the supreme court of the hell on earth in which it and he reigned as the chief imps.