123 U.S. 131 (1887)


Supreme Court of United States.

Decided November 2, 1887.

Attorney(s) appearing for the Case

Mr. Roger A. Pryor for petitioners.

Mr. J. Randolph Tucker for all the petitioners. Mr. M. Salomon, Mr. W.P. Black and Mr. Roger A. Pryor were with him on the opening brief.

Mr. George Hunt, and Mr. Julius S. Grinnell, opposing.

Mr. Benjamin F. Butler (for the petitioners Spies and Fielden only).

MR. CHIEF JUSTICE. WAITE delivered the opinion of the court.

When, as in this case, application is made to us on the suggestion of one of our number, to whom a similar application had been previously addressed, for the allowance of a writ of error to the highest court of a State under § 709 of the Revised Statutes, it is our duty to ascertain not only whether any question reviewable here was made and decided in the proper court below, but whether it is of a character to justify us in bringing the judgment here for reëxamination. In our opinion the writ ought not to be allowed by the court, if it appears from the face of the record that the decision of the Federal question which is complained of was so plainly right as not to require argument, and especially if it is in accordance with our well considered judgments in similar cases. That is in effect what was done in Twitchell v. The Commonwealth, 7 Wall. 321, where the writ was refused, because the questions presented by the record were "no longer subjects of discussion here," although if they had been in the opinion of the court "open," it would have been allowed. When, under § 5 of our Rule 6, a motion to affirm is united with a motion to dismiss for want of jurisdiction, the practice has been to grant the motion to affirm when "the question on which our jurisdiction depends was so manifestly decided right, that the case ought not to be held for further argument." Arrowsmith v. Harmoning, 118 U.S. 194, 195; Church v. Kelsey, 121 U.S. 282. The propriety of adopting a similar rule upon motions in open court for the allowance of a writ of error is apparent, for certainly we would not be justified as a court in sending out a writ to bring up for review a judgment of the highest court of a State, when it is apparent on the face of the record that our duty would be to grant a motion to affirm as soon as it was made in proper form.

In the present case we have had the benefit of argument in support of the application, and while counsel have not deemed it their duty to go fully into the merits of the Federal questions they suggest, they have shown us distinctly what the decisions were of which they complain, and how the questions arose. In this way we are able to determine as a court in session whether the errors alleged are such as to justify us in bringing the case here for review.

We proceed, then, to consider what the questions are on which, if it exists at all, our jurisdiction depends. They are thus stated in the opening brief of counsel for petitioners:

"First. Petitioners challenged the validity of the statute of Illinois, under and pursuant to which the trial jury was selected and empanelled, on the ground of repugnancy to the Constitution of the United States, and the state court sustained the validity of the statute.

"Second. Petitioners asserted and claimed, under the Constitution of the United States, the right, privilege, and immunity of trial by an impartial jury, and the decision of the state court was against the right, privilege, and immunity so asserted and claimed.

"Third. The State of Illinois made, and the state court enforced against petitioners, a law (the aforesaid statute) whereby the privileges and immunities of petitioners, as citizens of the United States, were abridged, contrary to the Fourteenth Amendment of the Federal Constitution.

"Fourth. Upon their trial for a capital offence, petitioners were compelled by the state court to be witnesses against themselves, contrary to the provisions of the Constitution of the United States which declare that `no person shall be compelled in any criminal case to be a witness against himself,' and that `no person shall be deprived of life or liberty without due process of law.'

"Fifth. That by the action of the state court in said trial petitioners were denied `the equal protection of the laws,' contrary to the guaranty of the said Fourteenth Amendment of the Federal Constitution."

The particular provisions of the Constitution of the United States on which counsel rely are found in Articles IV, V, VI, and XIV of the Amendments, as follows:

"Art. IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

"Art. V. No person ... shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty or property, without due process of law."

"Art. VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law."

"Art. XIV, § 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law."

That the first ten Articles of Amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the National Government alone, was decided more than a half century ago, and that decision has been steadily adhered to since. Barron v. Baltimore, 7 Pet. 243, 247; Livingston v. Moore, 7 Pet. 469, 552; Fox v. Ohio, 5 How. 410, 434; Smith v. Maryland, 18 How. 71, 76; Withers v. Buckley, 20 How. 84, 91; Pervear v. The Commonwealth, 5 Wall. 475, 479; Twitchell v. The Commonwealth, 7 Wall. 321, 325; The Justices v. Murray, 9 Wall. 274, 278; Edwards v. Elliott, 21 Wall. 532, 557; Walker v. Sauvinet, 92 U.S. 90; United States v. Cruikshank, 92 U.S. 542, 552; Pearson v. Yewdall, 95 U.S. 294, 296; Davidson v. New Orleans, 96 U.S. 97, 101; Kelly v. Pittsburg, 104 U.S. 78; Presser v. Illinois, 116 U.S. 252, 265.

It was contended, however, in argument, that, "though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights — common law rights — of the man, they make them privileges and immunities of the man as a citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words, while the ten Amendments as limitations on power only apply to the Federal Government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power, as the ten Amendments had limited Federal power."

It is also contended that the provision of the Fourteenth Amendment, which declares that no State shall deprive "any person of life, liberty or property, without due process of law," implies that every person charged with crime in a State shall be entitled to a trial by an impartial jury, and shall not be compelled to testify against himself.

The objections are in brief, 1, that a statute of the State as construed by the court deprived the petitioners of a trial by an impartial jury; and, 2, that Spies was compelled to give evidence against himself. Before considering whether the Constitution of the United States has the effect which is claimed, it is proper to inquire whether the Federal questions relied on in fact do arise on the face of this record.

The statute to which objection is made was approved March 12, 1874, and has been in force since July 1 of that year. Hurd's Rev. Stat. Ill. 1885, p. 752, c. 78, § 14. It is as follows:

"It shall be sufficient cause of challenge of a petit juror that he lacks any one of the qualifications mentioned in section two of this act; or if he is not one of the regular panel, that he has served as a juror on the trial of a cause in any court of record in the county within one year previous to the time of his being offered as a juror; or, that he is a party to a suit pending for trial in that court at that term. It shall be the duty of the court to discharge from the panel all jurors who do not possess the qualifications provided in this act, as soon as the fact is discovered: Provided, if a person has served on a jury in a court of record within one year, he shall be exempt from again serving during such year, unless he waives such exemption: Provided further, that it shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime with which the prisoner is charged, if such juror shall state on oath that he believes he can render an impartial verdict according to the law and the evidence: And provided further, that in the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression, based upon rumor or upon newspaper statements (about the truth of which he has expressed no opinion), shall not disqualify him to serve as a juror in such case, if he shall upon oath state that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement."

The complaint is that the trial court, acting under this statute and in accordance with its requirements, compelled the petitioners against their will to submit to a trial by a jury that was not impartial, and thus deprived them of one of the fundamental rights which they had as citizens of the United States under the National Constitution, and if the sentence of the court is carried into execution they will be deprived of their lives without due process of law.

In Hopt v. Utah, 120 U.S. 430, it was decided by this court that when "a challenge by a defendant in a criminal action to a juror, for bias, actual or implied, is disallowed, and the juror is thereupon peremptorily challenged by the defendant and excused, and an impartial and competent juror is obtained in his place, no injury is done the defendant, if until the jury is completed he has other peremptory challenges which he can use." And so in Hayes v. Missouri, 120 U.S. 68, 71, it was said: "The right to challenge is the right to reject, not to select a juror. If from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained." Of the correctness of these rulings we entertain no doubt.

We are, therefore, confined in this case to the rulings on the challenges to the jurors who actually sat at the trial. Of these there were but two — Theodore Denker, the third juror who was sworn, and H.T. Sanford, the last, who was called and sworn after all the peremptory challenges of the defendants had been exhausted.

At the trial the court construed the statute to mean, that, "although a person called as a juryman may have formed an opinion based upon rumor or upon newspaper statements, but has expressed no opinion as to the truth of the newspaper statement, he is still qualified as a juror if he states that he can fairly and impartially render a verdict thereon in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement. It is not a test question whether the juror will have the opinion which he has formed from newspapers changed by the evidence, but whether his verdict will be based only upon the account which may here be given by witnesses under oath."

Interpreted in this way, the statute is not materially different from that of the Territory of Utah, which we had under consideration in Hopt v. Utah, ubi supra, and to which we then gave effect. As that was a territorial statute, passed by a territorial legislature for the government of a territory over which the United States had exclusive jurisdiction, it came directly within the operation of Article VI of the Amendments, which guaranteed to Hopt a trial by an impartial jury. Webster v. Reid, 11 How. 437, 459. No one at that time suggested a doubt of the constitutionality of the statute, and it was regarded, both in the territorial courts and here, as furnishing the proper rule to be observed by a territorial court in empanelling an impartial jury in a criminal case.

A similar statute was enacted in New York, May 3, 1872, Session Laws of 1872, c. 475, 9 N.Y. Stat. at Large, Edmonds, 2d ed. 373; in Michigan, April 18, 1873, Acts of 1873, 162, Act 117, Howell's Stat., § 9564; in Nebraska, Comp. Stat. Neb. 1885, p. 838, Criminal Code, § 468; and in Ohio, Rev. Stat. Ohio, 1880, § 7278. The constitutionality of the statute of New York was sustained by the Court of Appeals of that State in Stokes v. The People, 53 N.Y. 164, 172, decided June 10, 1873, and that of Ohio, in Cooper v. The State of Ohio, 16 Ohio St. 328. So far as we have been able to discover, no doubt has ever been entertained in Michigan or Nebraska of the constitutionality of the statutes of those States respectively, but they have always been treated by their Supreme Courts as valid, both under the Constitution of the United States, and under that of the State. Stephens v. The People, 38 Mich. 739, 741; Ulrich v. The People, 39 Mich. 245; Murphy v. The State, 15 Neb. 383.

Indeed, the rule of the statute of Illinois, as it was construed by the trial court, is not materially different from that which has been adopted by the courts in many of the States without legislative action. Commonwealth v. Webster, 5 Cush. 295; Holt v. The People, 13 Mich. 224; State v. Fox, 1 Dutcher (25 N.J.L.), 566; Oslander v. The Commonwealth, 3 Leigh, 780; State v. Ellington, 7 Iredell, 61; Smith v. Eames, 3 Scammon, 76, 81. See also an elaborate note to this last case in 36 Am. Dec. 521, where a very large number of authorities on the subject is cited.

Without pursuing this subject further, it is sufficient to say that we agree entirely with the Supreme Court of Illinois in its opinion in this case that the statute on its face, as construed by the trial court, is not repugnant to § 9 of Art. 2 of the constitution of that State, which guarantees to the accused party in every criminal prosecution "a speedy trial by an impartial jury of the county or district in which the offence is alleged to have been committed." As this is substantially the provision of the Constitution of the United States on which the petitioners now rely, it follows that, even if their position as to the operation and effect of that Constitution is correct, the statute is not open to the objection which is made against it.

We proceed, then, to a consideration of the grounds of challenge to the jurors Denker and Sanford, to see if in the actual administration of the rule of the statute by the court, the rights of the defendants under the Constitution of the United States were in any way impaired or violated.

Denker was examined by the counsel for the defendants when he was called as a juror, and, after stating his name and place of residence, proceeded as follows:

"Q. You heard of this Haymarket meeting, I suppose? A. Yes.

"Q. Have you formed an opinion upon the question of the defendants' guilt or innocence upon the charge of murder, or any of them? A. I have.

"Q. Have you expressed that opinion? A. Yes.

"Q. You still entertain it? A. Yes.

"Q. You believe what you read and what you heard? A. I believe it; yes.

"Q. Is that opinion such as to prevent you from rendering an impartial verdict in the case sitting as a juror under the testimony and the law? A. I think it is."

At this stage of the examination he was "challenged for cause" for the defendants, but before any decision was made thereon the following occurred:

"Mr. GRINNELL (for the State): If you were taken and sworn as a juror in the case, can't you determine the innocence or the guilt of the defendants upon the proof that is presented to you here in court, regardless of your having any prejudice or opinion? A. I think I could.

"Q. You could determine their guilt or innocence upon the proof presented to you here in court, regardless of your prejudice and regardless of your opinion, and regardless of what you have read? A. Yes.

"The COURT: Do [Can] you fairly and impartially try the case and render an impartial verdict upon the evidence as it may be presented here and the instructions of the court? A. Yes; I think I could."

The court thereupon overruled the challenge, but before the juror was accepted and sworn he was further examined by counsel for the defendants, as follows:

"Mr. FOSTER: I was going to ask you something about the opinion that you have formed from reading the papers and from conversation. I believe you answered me before that you had formed an opinion from reading and hearing conversation. That is correct, is it? A. Yes; but I don't believe everything I read in the newspapers.

"Q. No; but you believe enough to form an opinion? A. Yes; I formed an opinion.

"Q. Was that opinion principally from what you read in the papers or was it from what you heard on the street? A. From what I read entirely.

"Q. Then you did believe enough of what you read to form an opinion upon the question of the guilt or innocence of these men, or some of them? A. Yes.

"Q. And I believe you said you also expressed your opinion which you have formed to others with whom you conversed? A. Yes; I have expressed that opinion.

"Q. During the expression of this opinion I will ask you whether you stated in substance to these persons or any of them that you believed enough of what you had read to form the opinion which you had?

"The COURT: Did you in any conversation that you had say anything as to whether you believed or not the account which was in the newspapers which you read? A. No, sir; I never expressed an opinion in regard to whether the newspapers were correct or not.

"Q. You never discussed that matter at all? A. No, sir."

Then, after some inquiries as to his business, age, and residence, the examination by the counsel for the defendant proceeded:

"Q. Are you acquainted with any members of the police force of the city of Chicago that were present at the Haymarket meeting on the occasion referred to? A. No, sir.

"Q. Have you ever had any conversation with any one that undertook to detail the facts as they occurred at the Haymarket Square, or who claimed they had been there? A. No, sir.

"Q. Is your opinion entirely made up of what you have read distinguished from what you have heard? A. Entirely from what I have read in the newspapers.

"Q. Have you had much conversation with others in regard to it at or about your place of business or elsewhere? A. We have conversed about it a number of times there in the house.

"Q. There is where you have expressed, I presume, the opinion which you have formed? A. Yes, sir.

* * * * *

"Q. Do you know anything about socialism, anarchism, or communism? A. No, sir; I do not.

"Q. Have you any prejudice against this class of persons? A. I think I am a little prejudiced against socialism. I don't know that I am against anarchism. In fact, I don't really understand what they are. I do not know what their principles are at all.

"Q. I understand you to say that notwithstanding the opinion you formed at the time you read the newspaper that you now are conscious of the fact that you can try this case and settle it upon the testimony introduced here? A. Yes; I think I could.

"Q. And not be controlled or governed by any impression that you might have had heretofore? A. Yes, sir.

"Q. And the law, as given you by the court, governing it? A. Yes, sir.

"Q. In the conversations that you have had there at the store, you say you have expressed the opinion which you have formed before? A. Yes, sir.

"Q. Is that of frequent occurrence — that you have expressed the opinion you have formed? A. Well, I think I have expressed it pretty freely.

"Q. As to the number of times — as to whether it was frequent or not? A. O, no; we did not bring the matter up in conversation very often, but when we did we generally expressed our opinion in regard to the matter.

"Q. Your mind was made up from what you read, and you had no hesitancy in saying it — speaking it out. A. I don't think I hesitated.

"Q. Would you feel yourself any way governed or bound in listening to the testimony and determining it upon the prejudgment of the case you had expressed to others before? A. Well, that is a pretty hard question to answer.

"Q. I will ask you whether acting as a juror here you would feel in any way bound or governed by the judgment that you had expressed on the same question to others before you were taken as a juryman; do you understand that? A. I don't think I would.

"Q. That is, you have now made up your mind, or at least you have formed an opinion; you have expressed that freely to others. Now, the question is whether when you listen to the testimony you will have in your mind the expression which you have given to others and have to guard against that and be controlled by it in any way. A. No, sir; I don't think I would. I think I could try the case from the testimony regardless of this.

* * * * *

"Q. I understand you to say that you believe that you can entirely lay to one side the opinion which you have formed; it would require no circumstances or evidence to overcome it if you were accepted as a juryman? A. I think I could lay aside that opinion I have formed.

"Q. You believe that you could? A. Yes."

Here the examination of the juror by the counsel for the defendant, so far as it seems to be important to the present inquiry, was closed. Then on examination by the attorney for the State the following appears:

"Q. Do you know anything of the counsel upon the other side? A. No, sir.

"Q. You have men under you assisting you in shipping? A. No; there are no men under me.

"Q. Do you belong to any labor organization? A. No, sir.

"Q. You stated, I believe, that you didn't know much about anarchism or communism, and therefore you couldn't tell whether you had a prejudice or not. A. No, sir; I do not.

"Q. But you have read something about socialism? A. Yes, sir.

"Q. Do you believe in the maintenance of the laws of the State of Illinois and the Government of the United States? A. Yes, sir; I do.

"Q. Have you any sympathy with any individual or class of individuals who have for their purpose or object the overthrow of the law by force. A. No, sir.

"Q. Have you any conscientious scruples against the infliction of the death penalty in proper cases? A. No, sir.

"Q. If taken as a juror in this case do you believe you could determine the innocence or guilt of the defendants upon the proof presented to you here in court, under the instructions of the court, regardless of everything else? A. Yes; I think I could.

"Q. You know now of no prejudice or bias that would interfere with your duties as a juror? A. No, sir.

"Q. Are you a socialist, a communist, or an anarchist? A. No, sir.

"Q. You have no associations or affiliations with that class of people, so far as you know? A. No, sir."

At the close of this examination neither party challenged the juror peremptorily, and he was accepted and sworn. It is not denied that when this occurred the defendants were still entitled to 142 peremptory challenges, or about that number.

When the juror Sanford was called he was first examined by counsel for defendants, and after some preliminary questions and answers, the examination, still by counsel for the defendants, proceeded as follows:

"Q. You know what case is on trial now, I presume? A. Yes.

"Q. Have you any opinion as to the guilt or the innocence of the defendants, or any of them, of the murder of Matthias J. Degan? A. I have.

"Q. You have an opinion; you say you have formed an opinion somewhat upon the question of the guilt or innocence of these defendants, do you mean, or that there was an offence committed at the Haymarket by the throwing of the bomb? A. Well, I would rather have you ask them one at a time.

"Q. All right. Have you an opinion as to whether or not there was an offence committed at the Haymarket meeting by the throwing of the bomb? A. Yes.

"Q. Now, from all that you have read and all that you have heard, have you an opinion as to the guilt or innocence of any of the eight defendants of the throwing of that bomb? A. Yes.

"Q. You have an opinion upon that question also? A. I have.

"Q. Did you ever sit on a jury? A. Never.

"Q. I suppose you know something about the duties of a juror? A. I presume so.

"Q. You understand, of course, that when a man is on trial, whether it be for his life or for any penal offence, that he can only be convicted upon testimony which is introduced in the presence and the hearing of the jury? You know that, don't you? A. Yes.

"Q. You know that any newspaper gossip or any street gossip has nothing to do with the matter whatever, and that the jury are to consider only the testimony which is admitted by the court actually, and then are to consider that testimony under the direction, as contained in the charge, of the court; you understand that? A. Yes.

"Q. Now, if you should be selected as a juror in this case to try and determine it, do you believe that you could exercise legally the duties of a juror — that you could listen to the testimony, and all of the testimony, and the charge of the court, and after deliberation return a verdict which would be right and fair as between the defendants and the people of the State of Illinois? A. Yes, sir.

"Q. You believe that you could do that? A. Yes, sir.

"Q. You could fairly and impartially listen to the testimony that is introduced here? A. Yes.

"Q. And the charge of the court, and render an impartial verdict, you believe? A. Yes.

"Q. Have you any knowledge of the principles contended for by socialists, communists, and anarchists? A. Nothing, except what I read in the papers.

"Q. Just general reading? A. Yes.

"Q. You are not a socialist, I presume, or a communist? A. No, sir.

"Q. Have you a prejudice against them from what you have read in the papers? A. Decided.

"Q. A decided prejudice against them? Do you believe that that would influence your verdict in this case, or would you try the real issue which is here, as to whether these defendants were guilty of the murder of Mr. Degan or not, or would you try the question of socialism or anarchism, which really has nothing to do with the case? A. Well, as I know so little about it in reality at present, it is a pretty hard question to answer.

"Q. You would undertake — you would attempt, of course, to try the case upon the evidence introduced here — upon the issue which is presented here? A. Yes, sir.

"Q. Now, the issue, and the only issue which will be presented to this jury, unless it is presented with some other motive than to arrive at the truth, I think is, did these men throw the bomb which killed officer Degan? If not, did they aid, abet, encourage, assist, or advise somebody else to do it? Now, that is all there is in this case; no question of socialism or anarchism to be determined, or as to whether it is right or wrong. Now, do you believe that you can try it upon that theory and return a verdict upon that theory and upon that issue? A. Well, suppose I have an opinion in my own mind that they encouraged it?

"Q. Keep it — that they encouraged it? A. Yes.

"Q. Well then, so far as that is concerned I do not care very much what your opinion may be now, for your opinion now is made up of random conversations and from newspaper reading, as I understand? A. Yes.

"Q. That is nothing reliable. You do not regard that as being in the nature of sworn testimony at all, do you? A. No.

"Q. Now, when the testimony is introduced here and the witnesses are examined and cross-examined, you see them and look into their countenances, judge who are worthy of belief and who are not worthy of belief. Don't you think then you would be able to determine the question? A. Yes.

"Q. Regardless of any impression that you might have, or any opinion? A. Yes.

"Q. Have you any opposition to the organization by laboring men of associations, or societies, or unions so far as they have reference to their own advancement and protection, and are not in violation of law? A. No, sir.

"Q. Mr. Sanford, do you know any of the members of the police force of the city of Chicago? A. Not one by name.

"Q. You are not acquainted with any one that was either injured or killed, I suppose, at the Haymarket meeting? A. No.

* * * * *

"Q. Mr. Sanford, are you acquainted with any gentlemen representing the prosecution — these three gentlemen, Mr. Grinnell, Mr. Ingham, Mr. Walker, and Mr. Furthman, who [is] not here at the present time? A. No, sir.

"Q. You are, I presume, not acquainted with any of the detective officers of the city of Chicago? A. Not to my knowledge.

"Q. Now, Mr. Sanford, if you should be selected as a juror in this case do you believe that, regardless of all prejudice or opinion which you now have, you could listen to the legitimate testimony introduced in court and upon that and that alone render and return a fair and impartial, unprejudiced and unbiased verdict? A. Yes."

At the close of this examination on the part of the defendants, the juror was challenged in their behalf for cause, and the attorney for the State, after it was ascertained that all the peremptory challenges of the defendants had been exhausted, took up the examination of the juror; and as to this the record shows the following:

"Mr. INGHAM: Mr. Sanford, upon what is your opinion founded — upon newspaper reports? A. Well, it is founded on the general theory and what I read in the newspapers.

"Q. And what you read in the papers? A. Yes, sir.

"Q. Have you ever talked with any one who was present at the Haymarket at the time the bomb was thrown? A. No, sir.

"Q. Have you ever talked with any one who professed, of his own knowledge, to know anything about the connection of the defendants with the throwing of that bomb? A. No.

"Q. Have you ever said to any one whether or not you believed the statements of facts in the newspapers to be true? A. I have never expressed it exactly in that way, but still I have no reason to think they were false.

"Q. Well, the question is not what your opinion of that was. The question simply is — it is a question made necessary by our statute, perhaps ____ A. Well, I don't recall whether I have or not.

"Q. So far as you know, then, you never have? A. No, sir.

"Q. Do you believe that if taken as a juror you can try this case fairly and impartially, and render a verdict upon the law and the evidence? A. Yes."

At this stage of the examination the court remarked in reply to some suggestion of counsel as follows:

"The COURT. The defendants having challenged for cause, which is overruled, can, of course, stand where they are without saying anything more; but the effect of that, in my judgment, is that they accept the juror because they can't help themselves. They have got no peremptory challenge; the challenge for cause is overruled, and, necessarily, the question now is for the State to say whether they will accept this juror or not. The common law is that all jurors not challenged, or to whom the challenge is not sustained, are the jurors to try the case. If they are not challenged for a cause which is sustained, and if they are not challenged peremptorily, then they are necessarily the jury to try the case. Now, in this instance, the defendants have no more peremptory challenges, and the challenge which they have made for cause is overruled; therefore, so far as the defendants are concerned, he is a juror to try the case."

This was accepted by both parties as a true statement of the then condition of the case, and after some further examination of the juror, which elicited nothing of importance in connection with the present inquiry, no peremptory challenge having been interposed by the State, Sanford was sworn as a juror, and the panel was then complete.

This, so far as we have been advised, presents all there is in the record which this court can consider touching the challenges of these two jurors by the defendants for cause.

In Reynolds v. The United States, 98 U.S. 145, 156, we said "that upon the trial of the issue of fact raised by" a challenge to a juror, in a criminal case, on the ground that he had formed and expressed an opinion as to the issues to be tried, "the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest... . It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the `conscience or discretion' of the court." If such is the degree of strictness which is required in the ordinary cases of writs of error from one court to another in the same general jurisdiction, it certainly ought not to be relaxed in a case where, as in this, the ground relied on for the reversal by this court of a judgment of the highest court of the State is, that the error complained of is so gross as to amount in law to a denial by the State of a trial by an impartial jury to one who is accused of crime. We are unhesitatingly of opinion that no such case is disclosed by this record.

We come now to consider the objection that the defendant Spies was compelled by the court to be a witness against himself. He voluntarily offered himself as a witness in his own behalf, and by so doing he became bound to submit to a proper cross-examination under the law and practice in the jurisdiction where he was being tried. The complaint is, that he was required on cross-examination to state whether he had received a certain letter, which was shown, purporting to have been written by Johann Most, and addressed to him, and upon his saying that he had, the court allowed the letter to be read in evidence against him. This, it is claimed, was not proper cross-examination. It is not contended that the subject to which the cross-examination related was not pertinent to the issue to be tried; and whether a cross-examination must be confined to matters pertinent to the testimony-in-chief, or may be extended to the matters in issue, is certainly a question of state law as administered in the courts of the State, and not of Federal law.

Something was said in argument about an alleged unreasonable search and seizure of the papers and property of some of the defendants, and their use in evidence on the trial of the case. Special reference is made in this connection to the letter of Most about which Spies was cross-examined; but we have not been referred to any part of the record in which it appears that objection was made to the use of this evidence on that account. And upon this point the Supreme Court of the State, in that part of its opinion which has been printed with the motion papers, remarks as follows:

"The objection that the letter was obtained from the defendant by an unlawful seizure is made for the first time in this court. It was not made on the trial in the court below. Such an objection as this, which is not suggested by the nature of the offered evidence, but depends upon the proof of an outside fact, should have been made on the trial. The defence should have proved that the Most letter was one of the letters illegally seized by the police and should then have moved to exclude or oppose its admission on the ground that it was obtained by such illegal seizure. This was not done, and therefore we cannot consider the constitutional question supposed to be involved."

Even if the court was wrong in saying that it did not appear that the Most letter was one of the papers illegally seized, it still remains uncontradicted that objection was not made in the trial court to its admission on that account. To give us jurisdiction under § 709 of the Revised Statutes because of the denial by a state court of any title, right, privilege or immunity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege or immunity was "specially set up or claimed" at the proper time in the proper way. To be reviewable here the decision must be against the right so set up or claimed. As the Supreme Court of the State was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the Supreme Court was only authorized to review the judgment for errors committed there, and we can do no more. This is not, as seems to be supposed by one of the counsel for the petitioners, a question of a waiver of a right under the Constitution, laws or treaties of the United States, but a question of claim. If the right was not set up or claimed in the proper court below, the judgment of the highest court of the State in the action is conclusive, so far as the right of review here is concerned. The question whether the letter, if obtained in the manner alleged, would have been competent evidence is not before us, and, therefore, no foundation is laid under this objection for the exercise of our jurisdiction.

As to the suggestion by counsel for the petitioners Spies and Fielden — Spies having been born in Germany and Fielden in Great Britain — that they have been denied by the decision of the court below rights guaranteed to them by treaties between the United States and their respective countries, it is sufficient to say that no such questions were made and decided in either of the courts below, and they cannot be raised in this court for the first time. Besides, we have not been referred to any treaty, neither are we aware of any, under which such a question could be raised.

The objection that the defendants were not actually present in the Supreme Court of the State at the time sentence was pronounced cannot be made on the record as it now stands, because on its face it shows that they were present. If this is not in accordance with the fact, the record must be corrected below, not here. It will be time enough to consider whether the objection presents a Federal question when the correction has been made.

Being of opinion, therefore, that the Federal questions presented by the counsel for the petitioners, and which they say they desire to argue, are not involved in the determination of the case as it appears on the face of the record, we deny the writ.

Petition for writ of error is dismissed.


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