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Victor
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The Labor History of the Cripple Creek District;
A Study in Industrial Evolution
by Benjamin McKie Rastall
pages 100-103
Civil And Military Authority
The general quartering of troops throughout the district, their spectacular activity, and especially such events as the arrests of public officials, newspaper men, etc., caused much excitement, and at times aroused strong public indignation. Hotheads were not lacking with all sorts of suggestions for retaliation. The sheriff's office was besieged with demands that he should form a posse, and take the prisoners out of the "bull pen" by force, and had the sheriff been a stronger man serious trouble might have been precipitated. The county commissioners showed their cool headedness by calling in as expert counsel Ex-Governor Thomas, and United States Senator Patterson, both attorneys of large experience.32 These men argued and advised, and explained between the various parties, and wielded an important influence in keeping the situation from the breaking point.
The friction between the civil and military authorities found its way into the courts. Friends of Chas. Campbell, H. H. MeKinney, Sherman Parker, and James Lafferty made application in the district court for writs of habeas corpus, and Judge Seeds issued writs returnable on Sept. 18th. Upon the date set counsel appeared for the militia officers and moved to quash the return. The court set the hearing of the motion for Sept. 21st. Lieutenant McClelland appeared on the morning of the 21st, and asked permission to file an amended return. This Judge Seeds permitted but declared that it was imperative that the prisoners should be produced in court. The militia officers answered in a significant way. Ninety cavalrymen rode to the court house and surrounded it; the court was cleared, and only court officers and members of the bar permitted to pass in. A company of infantry escorted the prisoners to the court house, and fourteen men with loaded guns and fixed bayonets entered the court room with them. Next day the prisoners did not appear at all, though the court issued two orders for them. On the 23d, the court house was again surrounded by a large body of infantry and cavalry; a gatling gun was placed in the street in front; and a detail of sharpshooters occupied the roof of the National Hotel across the way. Under a guard of 35 soldiers the prisoners were then allowed to appear. The same proceedings were repeated on the 24th.
Judge Seeds decided the cases in favor of the petitioners, and ordered them released. In his decision he reviewed the conditions under which the militia were present in the district; examined at length the habeas corpus law; and cited the constitution of Colorado which declares that the militia shall always be in strict subordination to the civil power.33 He admitted that the military commanders had the right to make arrests, but declared that the persons arrested must be turned over immediately to the civil authorities. General Chase refused to obey the order of the court, and took the prisoners back to the "bull pen." Later in the day they were released upon telegraphic orders from Governor Peabody. Other writs were granted from time to time and recognized by the militia officers, but the men were often rearrested immediately thereafter, and the orders of the court thus as effectively thwarted as though they had not been obeyed.
The presence of the National Guard had the desired effect in facilitating the opening of the mines. Within a week after the arrival of troops the Findlay, Strong, Elkton, Tornado, Thompson, Ajax, Shurtloff, and Golden Cycle had started up with small complements of men. On Sept. 17th, seventy strike breakers arrived under military guard, and next day three carloads more came into camp. Numbers of federation members, out of sympathy with the strike and the organization, and assured of protection, returned to work. The mine owners issued an estimate on October 10th, showing 2,900 men employed, of whom 1,200 were union men employed by the Portland and other "fair" mines.
The Mine Owners' Association had agents in a number of states offering a three dollar wage and transportation, to men who would take work at Cripple Creek. They were not always careful to say that there was a strike in progress in the district, and the men were often unaware of the conditions until their arrival, when they were practically forced to go to work. On Sept. 19th, a number of new arrivals were being escorted to the Independence Mine by a company in charge of Lieutenant Hartung, when one of the number broke away and called to his fellows not to go to work but to follow him. The lieutenant tried to arrest the man, and upon his continuing to run fired at him. A warrant was issued for Lieutenant Hartung, but the military officers would not allow it to be served.34
The number of troops in the district was gradually reduced during October and November, the reports of the Adjutant showing 498 men on duty November 30th.35
32Both are prominent Democrats, and stand among the leaders of the party in Colorado.
33Constitution of Colorado.
Article II. Writ Of Habeas Corpus :
Section 21. That the privilege of the writ of habeas corpus shall never be suspended, unless when in case of rebellion or Invasion, the public safety may require it.
MlLITARY. SUBORDINATE TO CIVIL POWER:
Section 22. That the military shall always he in strict subordination to the civil power; that no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, except in the manner prescribed by law.
From the opinion of Judge Seeds "There could be no plainer statement that the military should never be permitted to rise superior to the civil power within the limits of Colorado."
34The warrant was sworn out upon affidavit made before Notary Abby C. Coldwell by Emil Peterson, the man shot at, and his companion Carl Hanson. The latter part of the affidavit is as follows:
"On the 8th of September I went to Duluth to get work. At Duluth B. B. Gilbert & Co. labor agents, 5 South avenue, west, employed me to go to work in the Colorado gold mines. I was to get from $3 to $5 per day to fire boilers in the mine. I was shipped here from Duluth. Mine owners of Cripple Creek advanced me $18 for car fare. The company would pay this if we contracted to work a month. About seventy-five men were shipped from Duluth. I don't know how many quit on the way. Others joined at St. Paul, making near 150 altogether. I think that about eighty of these, of whom only five had ever worked in a mine arrived last night, Friday, September 18. B. B. Gilbert and Co. told us there was no strike in Cripple Creek. They had a newspaper in the office, saying: 'No strike in Gold Camp; all men go to work.' At Colorado Springs we discovered there was a strike. Men with spectacles on who said they were mine lessees met us in Colorado Springs and came on with us. I stayed last night at the Rhodes house with a party of ten. We took breakfast and then went to a building near where the shooting occurred. Here there were many others. The men were lined up and an officer said; 'Come on boys, go to work.' I said out load in Spanish, 'Don't go to work.' I started to run and he fired at me with a pistol. I ran zigzag to avoid the bullet. He fired once. I got away."
The militia based its action on section 15, chapter 63, Session Laws, 1897. No person belonging to the military forces of the State shall be arrested on any civil process while going to, remaining at, or returning from any place at which he may be required to attend to military duties.
35For full accounts of the numbers and distribution of the men during the whole period of operations, see Adjutant's Report in Biennial Report of Adjutant General, 1903-4, pp. 127-140.
NEXT: Attempts to wreck F. & C. C. R. R. trains — McKinney and Foster arrested — McKinney makes conflicting confessions — Trial of Davis, Parker, and Foster — Digest of evidence — Release of McKinney — The Vindicator explosion — Evidence in case