Statement of the Case. posed upon him, he was committed to the custody of the Marshal, to the end that the sentence might be carried into effect. The contention of the petitioner was that he is restrained of his liberty in violation of the Constitution. The various grounds of this contention will be considered, so far as it is necessary to do so, after we shall have ascertained the precise nature of the offence of which the petitioner was found guilty. The information showed that one Franz Krause, Louis Naecker, August Naecker, Charles Arndt, Louis Naecker, Jr., Herman Feige, Gustav A. Bruder, Fritz Boetcher, Herman Arndt, Julius Schultz, Louis Brandt, Caspar Windus, Ernest Arndt, and Christian Feige were, during the months of July and August, 1887, residents of this District, each pursuing the calling of a musician; That, during those months, there was in the District an association or organization of musicians, by the name of "The Washington Musical Assembly, No. 4308, K. of L.," containing one hundred and fifty members, and a branch of a larger association known as "The Knights of Labor of America," extending throughout the United States, and having a membership of five hundred thousand persons, of which ten thousand were residents of this District; That, during the period named, Edward C. Linden, Louis P. Wild, John N. Pistorio, James C. Callan (the appellant), Joseph B. Caldwell, George N. Sloan, John Fallon, Anton Fischer and Frank Pistorio were members of the said local assembly, each pursuing the calling of a musician; That, on the 17th of July, 1887, said local association imposed upon Franz Krause, one of its members, two fines, one of $25 and the other of $50, which he refused to pay upon the ground that they were illegal; and That said Linden, Wild, Pistorio, Callan, Caldwell, Sloan, Fallon, Fischer, with sundry other persons, whose names were unknown, did, on the 7th day of August, 1887, unlawfully and maliciously combine, conspire, and confederate together to extort from Krause the sum of $75 on account of said fines; to Statement of the Case. prevent the parties first above named- Krause, Naecker, and others and each of them, from pursuing their calling and trade anywhere in the United States; and to "boycott,” injure, molest, oppress, intimidate, and reduce to beggary and want, not only said persons and each of them, but any person who should work with or for them, or should employ them or either of them. The information charged that the manner in which the defendants, so conspiring, proposed to effect said result, was to refuse to work as musicians, or in any other capacity, with or for the persons first above named, or with or for any person, firm, or corporation, working with or employing them; to request and procure all other members of said organizations, and all other workmen and tradesmen, not to work as musicians, or in any capacity, with or for them or either of them, or for any person, firm, or corporation that employed or worked with them or either of them, and to warn and threaten every person, firm, or corporation that employed or proposed to employ the said persons, or either of them, that if they did not forthwith cease to so employ them and refuse to employ them, and each of them, such person, firm, or corporation, so warned and threatened, 'would be deprived of any custom or patronage, as well from the persons so combining and conspiring as from all other members of said organization in and out of the District. The information further charged that, on the 8th day of August, 1887, the said persons, among whom was the appellant, in execution of the purpose of said conspiracy, combination, and confederacy, sent and delivered to each member of "The Washington Musical Assembly, No. 4308, K. of L.,” and to divers other persons in the District whose names are unknown, a certain printed circular of the tenor following: "SANCTUARY WASHINGTON MUSICAL ASSEMBLY, 4308, K. OF L., "WASHINGTON, D. C., August 8th, 1887. "Dear Sir and Brother: In accordance with a resolution of this assembly and in compliance with the constitution and bylaws of the order, you are hereby notified that the following Argument for Appellee. named members of this assembly are hereby suspended for having performed with F. Krause, in direct violation of the official notice of said Krause's suspension from this assembly. You will, therefore, not engage or perform, directly or indirectly, with any of them-Louis Naecker, August Naecker, Charles Arndt, Louis Naecker, Jr., Herman Feige, Gus. A. Bruder, Fritz Boetcher, Herman Arndt, Julius Schultz, Louis Brandt, Caspar Windus, Ernest Arndt, Christian Feige. "By order of the assembly. "[SEAL.] 66 E. C. LINDEN, JR., To this information the defendants interposed a demurrer, which was overruled. They united in requesting a trial by jury. That request was denied, and a trial was had before the court, without the intervention of a jury, and with the result already stated. Mr. J. H. Ralston for appellant. Mr. Charles S. Moore was with him on the brief. Mr. Assistant Attorney General Maury for appellee. The conspiracy laid in the information is not an "infamous crime," within the meaning of the Fifth Amendment to the Constitution, the punishment of the offence not being by confinement in a penitentiary, and the offence itself not being crimen falsi. Ex parte Wilson, 114 U. S. 417: Mackin v. United States, 117 U. S. 348. It would seem that the Constitution does not require that the right of trial by jury shall be secured to the people of this District. Article 3, § 2, does not appear to contain such a requirement, when attentively considered, in the light of contemporaneous construction. Mr. Madison in the first Congress moved the appointment of a select committee on the subject of amending the Constitution. 1 Debates in Congress, O. S. 448. This and the amendments proposed by the several States were referred to a committee. Ib. 690 Argument for Appellee. The articles of the committee's report covering, inter alia, the third paragraph of the second section of the third article of the Constitution are the thirteenth and fourteenth, and are as follows: "THIRTEENTH. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence. "FOURTEENTH. The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger) shall be by an impartial jury of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place WITHIN THE SAME STATE." Now it was evidently upon the idea that what was contained in these two articles was more than the full equivalent of the third paragraph of the second section of the third article of the Constitution, that the committee recommended that that paragraph should be stricken out and article 13 of the report inserted in its room. 1 Debates, O. S. 784. It is manifest that the sole purpose of the committee was to provide for the trial by jury of crimes committed within the States, and nowhere else, and this intention is carried out by the provision of the Sixth Amendment securing the right to trial by jury "in the State and district wherein the crime shall have been committed." But to complete the history of this Sixth Amendment, it is necessary to lay before the court the amendment recommended by Mr. Madison for insertion in the Constitution in place of the third clause or paragraph of the second section of the Argument for Appellee. third article, which was to be stricken out. It is as follows: "Seventhly, That in article 3, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit: "The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger), shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence. "In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury as one of the best securities to the rights of the people, ought to remain inviolate." It would seem from the context that the reference to "crimes committed not within any county" is, as in the previous paragraph, to crimes committed within the jurisdiction of a State, although without the limits of a county, as, for example, crimes committed on the high seas within the limit up to which the state law is allowed to have effect. The subsequent words that in such cases "the trial may by law be in such county as the laws shall have prescribed " would seem to call for that meaning. But, supposing a constitutional guaranty of trial by jury to exist, it has not been denied. The language of the Sixth Amendment is "shall enjoy the right" to a trial by jury. The original language of the Constitution was that "the trial of all crimes except in cases of impeachment shall be by jury." VOL. CXXVII-35 |