Emma Langdon's Cripple Creek Strike 29

HE looked travel stained and worn, but withal wore a prosperous air as he stepped from the passenger coach to the platform yesterday morning. For a number of years since the declaration of the strike of 1903 he has been away from Colorado and heard little of the changes which had occurred during his absence. The detachment of military which surrounded the train had been just a little disconcerting, especially when he was ordered gruffly to salute as he stepped off. His resentment, however, was quickly overcome as he beheld on the platform a friend of former days, and in a trice the two were arm in arm exchanging greetings.

As they walked down the street, tipping their hats to occasional army officers, the traveler explained to his old time friend that since the declaration of the strike in August, 1903, he had been in the Alaskan gold fields, and later, when Goldfield was opened he went there and had acquired a fortune and was just come back to his old home, Victor. He then explained that the Western Federation of Miners had control of all the mines in Nevada and that they were conducted on the co-operative plan, and not managed as were the mines in Victor.

"Don't call it Victor," his friend interposed, "or you will do time in the military bull pen. Ever since the campaign of 1903, by order of the Dictator of the District of Cripple Creek, the city has been officially known as VICTORI. It's a little awkward to write with the capital "I" for a tail piece, but it don't sound so bad as it looks."

"Say," said the traveler, "ain't we in the United States, so what do you mean by Dictator?"

"Well, you see; it's like this," said his friend, "the Mine Owners' Association during the strike had deposed all officials elected by the people. They had ignored the regular courts and had set up a court of their own, which they called a 'commission,' Since the Association and the Citizens' Alliance were so completely in control of things, regular elections, courts, etc., would be a mere farce, so they asked and were granted a special dispensation by an extra session of the Fifteenth General Assembly, called by the Republican governor for that purpose. This dispensation granted the mine owners full possession and powers in the district. You might think that the citizens of the state protested, but, the truth was, that the Cripple Creek district, on account of the conduct of the element in control, had become a sore disgrace to the rest of the state and they were only too glad to get rid of the responsibility of carrying it as a part of Colorado.

"So then the Mine Owners' Association proceeded to select nine men to form a 'commission;' these men elected from among themselves a ruler who was named 'Dictator,' he to hold office so long as he obeyed the will of the mine owners.

"The commission makes all the laws, acts as a court of justice and equity and has the power to determine who shall be allowed to become subjects of the District of Cripple Creek."

"Has there been any trouble in maintaining this form of government?"

"Nothing very serious; there were several rebellions brought about by 'gun fighters' who had been imported into the district by the mine owners during the strike of 1903-4. They, on two different occasions, undertook to take possession of the government and name a Dictator of their own. They were, however, defeated after several battles had been fought and were placed in the military bull pen. You see the Dictator's army is composed of employes of the Mine Owners' Association, one of the conditions of employment being that they must bear arms when called upon."

''Say,'' said the newly arrived, '' what's become of the everlasting hills and the big dumps that used to be around here? The district looks now as bare and level as the Kansas prairies.''

"Why, don't you know? You see it's this way. When General Bell and his troops first occupied the district a member of the cavalry rode into a prospect hole one night inflicting injury to himself and his horse and bringing humiliation upon the flag. The general recognized in these prospect holes a base conspiracy of the enemy and forthwith ordered that they be filled. It took all the scenery we had to fill them and several years' work, but it's been done. Now when a man wants to prospect he has to start early in the morning so that he may refill the hole by night. Of course, with such a system of work, there are few strikes made, but the heroes who defend the flag are safe."

''What has become of the miners who used to be here? Besides yourself and an occasional business man, I have hardly seen a familiar face.''

''The miners? Why, all these fellows you see in uniform are non-union miners. After the militia had been here for two years, with none of the strikers returning to work, a provision was added to the articles of war making it compulsory for all able bodied citizens of the state to do military duty for a term of five years each, and for all soldiers during the period of their enlistment to work a ten-hour shift each day in the mines. They divide up the guard duty and other military work into shifts of four hours daily, so they are obliged to work but fourteen hours a day, If one of them gets drunk or violates any of the minor articles of war he is punished by being compelled to do overtime in the mines.

"You are no doubt surprised that the miners stand for such treatment. Well, you see the Western Federation men would not. They all left the county and since then the district has never been the same. The miners that are here now are mostly men who have been discarded by the union miners for being traitors. The others are law-breakers from other parts of the United States who are 'wanted' but find a safe retreat under the banner of the Dictator, the country in general being glad to have a dumping ground for undesirable people."

"Where is Bell now? I used to know him in the good old days when we were members together of Company Eight, which won first honors in 'Frisco. I'd like to seen him."

"Oh, Bell's in Pueblo; been there for about five years, occupying a padded cell in the insane asylum."

"I'm surprised; what in the world happened to him," asked the visitor.

"Well, you see the poor fellow was so imbued with the idea that he was the greatest general the world had ever produced, and the fact that the public would not appreciate his greatness, in spite of his never missing an opportunity of lauding himself through the press and to all who would listen to him, he finally had made, and wore, a Napoleon uniform. It got to be a common thing to see him slowly wandering down one of the principal streets of Denver, dressed in this uniform, his sword danging at his side, his hat pulled down over his eyes, his head drooped and his chin resting in the palm of his right hand. This gave him the appearance of having grave and mighty matters on his mind, upon the solution of which rested the future welfare of our great nation. The public had for a long time recognized that Bell was a monomaniac on militarism, but so long as his mania did not take a violent form were satisfied to humor him. Of course you understand Bell's antipathy to anything that smacked of union. It was noticed that in his wanderings over the city, whenever he came to an establishment, displaying a sign such as "Union Hotel," "Union Cigars" or the like, he would halt, draw his sword and brace himself as if expecting an attack from an opposing army. One day he posted himself before the main entrance of the Union depot as a train was unloading, swung his sword frantically and called upon his army, that his hallucination caused him to believe he still commanded, to charge the enemy. As you can imagine, this caused a panic and led to his being put in restraint. They say at the asylum that he imagines he is exiled to the Isle of Elba, and declares he will escape and will yet rescue his beloved country from the enemy—the unionists."

"I am sorry to hear all this," replied the astonished visitor, "Bell was a good fellow when he and I were in Company Eight together, his chief weakness then though, was his love of great military parades, and it must have been his craze for fame and militarism that drove him hopelessly mad.''

"And McClelland, of whom I heard just after the strike began, before I shipped from Seattle? Is he here?''

"Yes, he's still here; but you'd hardly know him. He's aged terribly in these ten years with his duties as military censor of the press bearing so heavily upon him. He's finally suppressed all the papers in the District of Cripple Creek with the exception of the VictorI Bazoo, and they say that the Bazoo came near going under last week through inadvertantly using in an editorial the obsolete expression, "the rights of the people."

The former resident was amazed.

"But it's nearly noon now," said his friend. "Come with me and join the people of VictorI in their obeisance to the Dictator. At high noon each day every inhabitant of VictorI must render the military salute."

The two joined the throng in the journey to the monument, and as they came near the palace, the shriek of the Gold Coin whistle announced that it was noon all over the world, the entire populace gave the military salute.

"Well,” said the traveler, "none of this for me. I'm for Denver on the first train out. But tell me before I go, what has become of Peabody?"

"Peabody, oh, he's turned hermit. You see the decent people of the state would have none of him, the mine owners having nothing further to gain from him as a tool, gave him the cold shoulder. He tried living in several other states, but was continually being pointed out as the notorious ex-governor of Colorado, so he finally retired to the back woods of Arkansas, where he is living in seclusion shunning his fellow men. They say he has been occupying his time in writing a book, entitled: '' Justification of My Acts While Governor.' "

"I see Colorado has a Democratic governor now. Since when have the Democrats become the dominant party in the state ?''

"Since the election of 1906. At the election of 1906 the Honorable Alva Adams was the candidate on the Democratic ticket. Jesse McDonald was a candidate for election on the Republican ticket. Adams was elected, receiving four votes to McDonald's one. At the election of 1908 the Republican candidate was again badly defeated. Since then it is a rarity to meet a voter who will acknowledge being a Republican. The Republican party sealed its doom in the Fifteenth General Assembly by stealing the governorship.

"The political party feared by the Democrats today is the Socialist party."

APPENDIX

An account of the Moyer, Haywood and Pettibone cases
Trial and outcome; a brief account of the rise of the
United Mine Workers with an account of the
Anthracite strike—the rise of Trade Unions,
sketching the History of the Typograph-
ical Union and other Informa-
tion of Vital interest to the
Student of Labor Conflicts.

April, 1908

DEDICATION

TO the organizations that so generously
contributed funds for the defense of the
Imprisoned Union men and to all that assisted
by moral or financial support this Appendix
is respectfully dedicated.

Famous Kidnapping Cases

THE foregoing pages have related in detail sufficient facts to convince the reader that the labor war being waged in the West is a fight not to be considered lightly by the progressive man or woman of today—and war it has been and is still—for the end is not yet. Such a struggle between two such contending forces can only be settled one way and that is the complete overthrow of the one or the other. As has already been stated elsewhere it has been a struggle between organized labor and organized capital—between the working class and monied power—right and might—for the complete control of the industrial and political mastery of the situation in the Rocky mountains. Determination to win on both sides. The miners have proven to the world they are not mental weaklings, but strong both mentally and physically—with hearts that beat for the love of justice and liberty and have faith sufficient unto the hour. These men who have explored the West and reared a golden empire know not the word compromise.

Organized capital fought a bloody fight—but employed unfair methods—illegal means under the name of law. I can admire determination and good generalship in an opponent as well as in our own ranks but not a man or party of men who stabs in the back. In spite of the fact that money in unlimited sums has been used to buy the State Supreme Court, unseat governors, hire special trains and give steady employment to Pinkerton's force of "operatives," the Western Federation of Miners still maintain headquarters. In fact, 1908 finds the organization stronger educationally and in actual membership greater than in the past, national headquarters enlarged and newly furnished with money in the treasury to continue the conflict.

No effort will be made by the writer to enter into the details of this outrage which is as dark as the other deeds of the mine owners chronicled heretofore. It is offered merely as a brief synopsis, the details properly related would fill a very large volume. Some of the most important facts for reference follow: During the evening of December 30, 1905, ex-Governor Frank Steunenberg, of Idaho, was killed at Caldwell, Idaho, by a bomb which exploded as he opened the gate to go into his yard.

Frank Steunenberg was supported for governor by a sufficient number of the workmen's votes to elect him governor of Idaho. He was one of the old party politicians who gained the workers' votes by posing as the "friend of labor," "full dinner pail," and the promise of a "job." He at one time carried an honorary membership card in the Typographical union. He served two terms as governor of the state of Idaho. His first term being satisfactory as far as the writer has been able to learn.

During his administration, (second term,) in 1899, the W. F. M. became involved in a strike known in the history of industrial conflicts as the Coeur d'Alene strike. The "bull pen" was soon established and this was the beginning of the "bull pen" in the West and it has continued ever since up to this date. The miners were fast winning the fight and victory seemed assured when the mine owners sounded the alarm and called upon Steunenberg for assistance. He proved himself a friend and tool and was the instrument used to disrupt the union at that time. He made requisition on the National government for troops. General Merrian was given charge and with negro soldiers took charge of the district. Truthful men—men of honor, who would not lie needlessly—say hundreds were subjected to tortures and persecutions more horrible than the memories of Andersonville or Libby prison during the Civil war. Homes were destroyed and even worse occurred. Men saw their beautiful daughters forced to submit to brutal indignities from negro soldiers and were powerless to prevent. These memories will ever live a hideous nightmare haunting those who experienced the horrors. Steunenberg was class conscious and did not falter, he took his stand without hesitation.

In spite of the fact that Steunenberg was morally responsible for the outrages perpetrated in 1899, he was generally liked, especially by his neighbors, considered by his associates a "hale fellow well met," possessed, in fact, all the characteristics necessary for a successful politician.

This being the case, his death naturally created a great furor, a determination to run down and punish those responsible for this dastardly crime at any cost. Opponents of the Western Federation of Miners lost no time in pointing out the organization as being instrumental in the murder of Steunenberg. This, even before the arrest of Orchard. They undoubtedly had in mind the condition that would prevail when Orchard was engaged by them as the instrument by which they fondly hoped to once and forever crush the W. F. M. Large cash rewards were offered by the State of Idaho and individuals for the capture of the murderer.

ARREST OF ORCHARD.

Harry Orchard was arrested January 1. Immediately the press promised more sensations and from that date all kinds of hints of startling "evidence" that was soon to be made public filled the daily capitalist papers. They furnished an abundance of sensations and used a great deal of red ink in "scare heads" —the reporters poured out vitriol upon page after page of "copy"—consigning labor unions to purgatory in short order— had a few men hanged or lynched in their own putrid minds but we are still waiting for the promised "evidence" that was to convince the world that the Federation was a criminal organization.

ORCHARD'S PART IN THE PLAY.

It was upon an alleged confession, by Harry Orchard, alias Hogan, Horsley, to Detective James McParland, in charge of the Western branch of the Pinkerton Detective Agency, that the prosecution depended for conviction of the people they so much desired to dispose of. Two days after the horrible murder of Steunenberg, Orchard was arrested at Caldwell, Idaho. In his room was found incriminating evidence sufficient to stamp him beyond doubt as the man who constructed the fatal bomb. Pieces of dynamite littered the table, on which were standing several bottles of sulphuric acid and other chemicals that usually enter into the composition of infernal machines. In addition, there was discovered a piece of string identical in manufacture to that attached to the bomb which killed the governor. Apparently no attempt had been made by Orchard to destroy any traces of the evidence that might lead to his apprehension. Neither had he made the slightest effort to escape after the explosion of the bomb. According to the hotel employes, he "just hung around," seemingly awaiting for certain arrest, which, no doubt, was a part of the plan.

Twenty-one days after his incarceration, McParland, who had arrived from Denver, Colo., and had taken charge of the case, announced that Orchard had made a typewritten "confession" of 18,000 words, in which he declared that he was hired by Moyer, Haywood and Pettibone to kill Steunenberg with dynamite. He further "confessed" to twenty-six other murders committed by himself at various times in different parts of the country. Altogether, this "confession" was a lurid affair, and its details were grewsome enough to make the most hair-raising writer of dime novel fiction turn green with envy. With this "confession" came the arrest and kidnapping of the officers of Western Federation of Miners.

THE KIDNAPPING.

After business houses had closed in Denver, courts adjourned, lawyers were at their homes, the secret arrest of President Charles H. Moyer, Secretary-Treasurer William D. Haywood and George A. Pettibone, business man, all citizens of Denver, took place, late Saturday night, February 17, 1906.

President Moyer was the first victim, taken prisoner about 9 o 'clock. Haywood an hour later and Pettibone taken from his home just before midnight.

The circumstances of the kidnapping of three of Colorado's best citizens were unprecedented and in line with other highhanded methods employed during the strikes of which these pages are a history. On February 12, 1906, O. M. Van Duyn, county attorney of Canyon county, Idaho, filed a sworn complaint in the office of the county probate judge, charging Moyer, president of the Western Federation of Miners, Haywood, secretary-treasurer, of the Federation and Pettibone with the murder of ex-Governor Steunenberg. On the same day the probate judge issued warrants for the arrest of the accused men, and several hours later Governor Gooding, of Idaho, issued a requisition upon the governor of Colorado for the three men, who were known to be living in Denver. In his affidavit and petition to Governor Gooding, Attorney Van Duyn swore "that the said appellants and plaintiffs in error were in the state of Idaho on the date of the murder of said Frank Steunenberg," and that they were fugitives from justice from the state of Idaho. In the conference that occurred in the governor's office before the requisition was granted were Gov. Gooding, Attorney Van Duyn, James II. Hawley and W. E. Borah, attorneys at law residing at Boise City, and several others. It has been stated and not denied that Detective McParland was also present.

J. C. Mills and James H. Hawley were designated to take the requisition to the governor of Colorado and receive the bodies of the men wanted. At 11 o'clock on the morning of February 15, Mills and Hawley, and, presumably, McParland, arrived in Denver, where they at once conferred with Governor McDonald and perfected the conspiracy, already begun in Idaho, whereby Moyer, Haywood and Pettibone were to be kidnapped and carried from the state.

During all of the time while these conspirators were perfecting their plan, Moyer, Haywood and Pettibone were engaged in their business, openly and above board, and could easily have been arrested at any time after the arrival of Mills and Hawley in the city. Instead, the conspirators waited all day Thursday, all day Friday, and all of Saturday and then proceeded late Saturday night to carry out the kidnapping.

The kidnapped men were taken to the county jail and every precaution was exercised to prevent either their relatives, friends or attorneys from discovering the arrest. The purpose, undoubtedly being to prevent the prisoners from having recourse to the usual legal method granted to even well-known desperate criminals, to fight the requisition.

Early Sunday morning, shortly after 5 o'clock, the prisoners were driven to a siding near the Union Depot, placed in a special train, consisting of an engine and two coaches, and whirled rapidly out of the state. No stops were made except for coal and water, and this "Kidnapper's Special" had the right-of-way over every other train on the track from Denver to Boise, Idaho. The men were heavily guarded throughout the trip by the parties commissioned by the Governor of Idaho, Adjutant General Bulkely Wells, of the Colorado National Guard and some of his troopers. Upon their arrival at Boise, were taken to the penitentiary, where they were placed in felon's cells and denied communication with the outside world. The arrest in Denver was made by Pinkerton detectives and a detachment of state troops.

Then followed more promising sensations by the press. The statement went out from the State Capitol of Idaho that the prisoners would be given a fair trial and immediately following that statement another saying that the proper authorities of Idaho and Colorado had in their possession documents which, when produced, would be sufficient to hang not only the three kidnapped, but many others who belonged to the "inner circle" of the W. F. M. L. J. Simpkins was badly wanted and others according to the reports.

ST. JOHN ARRESTED.

Vincent St. John came in for his share of their venom and immediately after the kidnapping of Moyer, Haywood and Pettibone was seized, in the darkness of night at his home in Burke, Idaho, taken to Boise and committed to the penitentiary on suspicion that he was implicated in the assassination of ex-Gov. Steunenberg. He was held in the penitentiary a period of twenty-three days, before the attorneys for the W. F. M. could secure his release upon a writ of habeas corpus.

As soon as he was liberated from the penitentiary in Idaho, he was re-arrested on a trumped-up charge of murder and taken to Colorado. Not a single particle of incriminating evidence was produced at his preliminary hearing, notwithstanding this fact he was bound over to a District Court in the sum of $10,000.

In September, 1906, his case was called and the prosecution with the hired attorneys of a Mine Owner's Association were forced to go into court and move that the case be nolle-prossed on the ground that there was no evidence upon which to base a conviction.

McPARLAND IN EVIDENCE.

The report was whirled over the United States, credited to Governor Gooding and other officials of Idaho, that the kidnapped men would never leave the state alive. McParland was very liberal with his interviews and filled much space with the "terrible secrets" he had "unearthed." According to his statements, which filled half the daily press, the lives of every prominent official of each state and the Supreme Court judges were in danger and he, at the last minute, had appeared on the scenes in time to avert the tragedy. According to him Denver was about to be blown off the map on account of Gabbert or Goddard residing in the city. Some way he always, for reasons best known to himself, perhaps, failed then and until now to produce this "startling evidence" which was to hang so many.

WRIT OF HABEAS CORPUS DENIED.

Februray 23, 1906, attorneys for the imprisoned men filed petitions in the Supreme Court of Idaho, asking for a writ of habeas corpus to test the validity of the imprisonment. March 12, the Supreme Court refused the writ and remanded the prisoners. March 15, the attorneys for the defense filed petitions for a writ of habeas corpus in the office of the clerk of the United States Circuit Court of Idaho. After several days' consideration, the writs were refused and the prisoners remanded. A bill of exceptions was filed, and an appeal was taken to the United States Supreme Court. The decision of the Supreme Court, handed down Monday, December 3, 1906, fully ten months after the men had been kidnapped from Colorado, sustained those of the lower Federal and Idaho state courts. This meant the legalization of kidnapping, an act heretofore considered a crime, by the highest judicial authority in the land.

If the reader will read the synopsis of Justice Harlan's opinion there can be but one impression left in the mind—that the constitutional laws are but hollow mockeries when the working men of the land test them to obtain their rights under the so-called laws of this Republic. Others will find as time puts them to the test that the constitution of our state or nation has not during the past few years and will not in the future, so long as monied interests predominates over justice, come to the rescue of any but the monied power unless, perchance, it suits the convenience of the corporate power that controls the executive, legislative and judicial departments of government of state or nation. A decision such as Justice Harlan's should be sufficient cause to shatter the reverence felt in the past for the judiciary, when it is so plainly shown they are but the willing tools of corporations to put the stamp of legal approval upon the lawlessness of the trusts and monopolies of various kinds.

Through the decision of Justice Harlan, the United States Supreme Court said to the world: "We approve of kidnapping." According to the decision, kidnapping is legal if perpetrated by the governors of two states, who have entered into a plot with a corporation, to seize in the midnight hour, the victims and spirit them away to another state, in which they have not lived, and confine them in a felon's cell. If this is not a violation of the constitution of the United States then let it be amended in such a manner as to make it a crime. If the governors can do this legally, in what manner would private citizens offend if they should follow the example of the executives of the state? Does kidnapping become legal only when indulged in by the governors? Are men who are clothed with executive authority licensed through the positions they hold to mock laws and jeer at the lauded rights we are told are guaranteed by a constitution. Synopsis of the Supreme Court decision follows:

SYNOPSIS OF SUPREME COURT'S DECISION.

"Looking first at what was alleged to have occurred in Colorado touching the arrest of the petitioner and his deportation from that state, we do not perceive that anything done there, however hastily or Inconsiderately done, can be adjudged to be in violation of the constitutional laws of the United States."

He added that the governor of that state had not been under compulsion to demand proof beyond that contained in the extradition papers. His failure to require independent proof of that fact that petitioner was, as alleged, fugitive from justice, can not be regarded as an infringement of any right of the petitioner under the constitution or laws of the United States. He also said that even if there was fraud in the method of removal there had been no violation of rights under the constitution.

"It is true, as contended by the petitioner, that if he was not a fugitive from justice within the meaning of the constitution, no warrant for his arrest could have been legally issued by the governor of Colorado, It is equally true that after the issuing of such a warrant before his deportation from Colorado it was competent for a court, Federal or State, sitting in that state, to inquire whether he was in fact a fugitive from justice, and if found not to be, to discharge him from the custody of the Idaho agent and prevent his deportation from Colorado.

WHERE IDAHO WINS.

"No obligation was imposed by the constitution or the laws of the United States upon the agent of Idaho so to time the arrest of the petitioner and so to conduct his deportation from Colorado as to afford him a convenient opportunity before some judicial tribunal sitting in Colorado to test the question whether he was a fugitive from justice and as such liable, under the act of Congress, to be conveyed to Idaho, for trial there.

"It can not be contended the the circuit court, sitting in Idaho, could rightfully discharge the petitioner upon the allegation and proof simply that he did not commit the crime of murder charged against him. His guilt or innocence of that charge is within the exclusive jurisdiction of the Idaho state court. The question in the court below was not whether the accused was guilty or innocent, but whether the Idaho court could properly be prevented from proceeding in the trial of that issue upon proof being made in the Circuit Court of the United States sitting in that state, that the petitioner was not a fugitive from justice and not liable, in virtue of the constitution and laws of the United States, to arrest in Colorado under the warrant of its governor and carried into Idaho."

HARLAN'S SUMMING UP.

In summing up his lengthy opinion, Justice Harlan says: "Even were it conceded, for the purpose of this case, that the governor of Idaho wrongfully issued his requisition and that the governor of Colorado erred in honoring it and issuing his warrant of arrest, the vital fact remains that Pettibone is held by Idaho in actual custody for trial under indictment charging him with crime against its laws, and he seeks the aid of the circuit court to relieve from custody so that he may leave that state. In the present case it is not necessary to go behind the indictment and inquire as to how it happened that he came within the reach of the process of the Idaho court, in which the indictment is pending, and any investigation as to the motives which induced action by the governor of Colorado and Idaho would be improper as well as irrelevant as to the real question to be now determined. It must be conclusively presumed that those officers proceeded throughout this affair with no evil purpose and with no other motive than to enforce the law. The decision of the lower court is therefore affirmed."

This decision caused little surprise. In this age, where corporate interests predominate over justice and right and the constitution is ignored, when it suits the interest of capital, it is not strange that the Supreme Court of the United States should have sustained the lower courts, regardless of the rights of the masses.

Justice McKenna had the courage to hand down a dissenting opinion. This opinion was, undoubtedly, such a one as would have unanimously been rendered by the United States Supreme Court if the personnel of said court were true to the constitution of these United States and were concerned in safeguarding the interests of the masses, rather than subservient to the interests of a favored class.

McKENNA'S DISSENTING OPINION.

Justice McKenna's magnificent dissenting opinion follows:

"I am constrained to dissent from the opinion and judgment of the court. The principle announced, as I understand it, is that 'a circuit court of the United States, when asked upon habeas corpus to discharge a person held in actual custody by a state for trial in one of its courts under an indictment charging a crime against its laws, cannot properly take into account the methods whereby the state obtained such custody.'

"In other words, and to illuminate the principle by the light of the facts in this case (facts, I mean, as alleged, and which we must assume to be true for the purpose of our discussion), that the officers of one state may falsely represent that a person was personally present in the state and committed a crime there, and had fled from its justice, may arrest such person and take him from another state, the officers of the latter knowing of the false accusation and conniving in and aiding its purpose, thereby depriving him of an opportunity to appeal to the courts; and that such person cannot invoke the rights guaranteed to him by the constitution and statutes of the United States in the state to which he is taken. And this, it is said, is supported by the cases of Kerr vs. Illinois (119 U. S. 436), and Mahon vs. Justice (127 U. S. 700). These cases, extreme as they are, do not justify, in my judgment, the conclusions deduced from them. In neither case was the state the actor in the wrongs that brought within its confines the accused person.

"In the case at bar the states, through their officers, are the offenders. They, by an illegal exertion of power, deprived the accused of a constitutional right. The distinction is important to be observed. It finds expression in Mahon vs. Justice. But it does not need emphasizing. Kidnapping is a crime, pure and simple. It is difficult to accomplish; hazardous at every step. All the officers of the law are supposed to be on guard against it. All of the officers of the law may be invoked against it. But how is it when the law becomes the kidnapper?

"When the officers of the law, using its forms and exerting its power, become abductors? This is not a distinction without a difference—another form of the crime of kidnapping distinguished only from that committed by an individual by circumstances. If a state may say to one within her borders and upon whom her process is served, I will not inquire how you came here; I must execute my laws and remit you to proceedings against those who have wronged you, may she so plead against her own offenses? May she claim that by mere physical presence within her borders an accused person is within her jurisdiction denuded of his constitutional rights, though he has been brought there by her violence?

"And constitutional rights the accused in this case certainly did have, and valuable ones. The foundation of extradiction between the states is that the accused should be a fugitive from justice from the demanding state, and he may challenge the fact by habeas corpus immediately upon arrest. If he refute the fact he cannot be removed (Hyatt vs. Corkran, 198 U. S. 691), and the right to resist removal is not a right of asylum. To call it so, in the state where the accused is, is misleading. It is the right to be free from molestation. It is the right of personal liberty in its most complete sense; and this right was vindicated in Hyatt vs. Corkran and the fiction of a constructive presence in a state and a constructive flight from a constructive presence rejected.

"This decision illustrates at once the value of the right, and the Value of the means to enforce the right. It is to be hoped that our criminal jurisprudence will not need for its efficient administration the destruction of either the right or means to enforce it. The decision, in the case at bar, as I view it, brings us perilously near both results. Is this exaggeration? What are the facts in the case at bar as alleged in the petition, and which it is conceded must be assumed to be true? The complaint, which was the foundation of the extradition proceedings, charged against the accused the crime of murder on the 30th of December, 1905, at Caldwell, in the county of Canyon, state of Idaho, by killing one Prank Steunenberg, by throwing an explosive bomb at and against his person. The accused avers in his petition that he had not been in the state of Idaho in any way, shape or form, for a period of more than ten years, prior to the acts of which he complained, and that the governor of Idaho knew accused had not been in the state the day the murder was committed, 'nor at any time near that day.'

"A conspiracy is alleged between the governor of the state of Idaho and his advisers, and that the governor of the state of Colorado took part in the conspiracy, the purpose of which was 'to avoid the constitution of the United States and the act of Congress made in pursuance thereof; and to prevent the accused from asserting his constitutional right under clause 2, section 2, of article IV, of the constitution of the United States and the act made pursuant thereof.' The manner in which the alleged conspiracy had been executed was set out in detail. It was in effect that the agent of the state of Idaho arrived in Denver, Thursday, February 15, 1906, but it was agreed between him and the officers of Colorado that the arrest of the accused should not be made until some time in the night of Saturday, after business hours—after the courts had closed and judges and lawyers had departed to their homes; that the arrest should be kept a secret, and the body of the accused should be clandestinely hurried out of the state of Colorado with all possible speed, without the knowledge of his friends or his counsel; that he was at the usual place of business during Thursday, Friday and Saturday; but no attempt was made to arrest him until 11:30 o'clock p. m. Saturday, when his house was surrounded and he was arrested. Moyer was arrested under the same circumstances at 8:45, and he and accused thrown into the county jail of the City and County of Denver.'

"It is further alleged that, in pursuance of the conspiracy, between the hours of 5 and 6 o'clock on Sunday morning, February 18th, the officers of the state, and 'certain armed guards, being a part of the forces of the militia of the state of Colorado,' provided a special train for the purpose of forcibly removing him from the state of Colorado; and, between said hours, he was forcibly placed on said train and removed with all possible speed to the state of Idaho; that prior to his removal and at all times after his incarceration in the jail at Denver he requested to be allowed to communicate with his friends and his counsel and his family, and the privilege was absolutely denied him. The train, it is alleged, made no stop at any considerable station, but proceeded at great and unusual speed, and that he was accompanied by and surrounded with armed guards, members of the state militia of Colorado, under the orders and directions of the adjutant general of the state. I submit that the facts in this case are different in kind and transcend in consequences those in the cases of Ker vs. Illinois and Mahon vs. Justice, and differ from and transcend them as the power of a state transcends the power of an individual.

"No individual could have accomplished what the power of the two states accomplished. No individual or individuals could have commanded the means and success could have made two arrests of prominent citizens by invading their homes; could have commanded the resources of jails, armed guards and special trains; could have successfully timed all acts to prevent inquiry and judicial interference. The accused, as soon as he could have done so, submitted his rights to the consideration of the courts. He could not have done so in Colorado. He could not have done so on the way from Colorado. At the first instant that the state of Idaho relaxed its restraining power he invoked the aid of habeas corpus successively of the Supreme Court of the state and of the Circuit Court of the United States. He should not have been dismissed from court, and the action of the Circuit Court in so doing should be reversed."

NEXT: Adams' Case

Victor Heritage Society

The Cripple Creek Strike: a History of Industrial Wars in Colorado, 1903-4-5

By Emma Florence Langdon

Looking Backward