JUG-HANDLED JUSTICE

It is an ancient law that a man who conspired to use the courts
to destroy his fellow men was guilty of treason to the state.
He had laid his hand upon the state itself;
he had touched the bulwark of human liberty.
     Clarence Darrow


A Brief Statement of Facts to Pennsylvania’s Board of Pardons

T
he manipulation by one man of the rights of due process and equal protection, and of civil rights, for the Irish Catholic defendants prosecuted as Pennsylvania’s “Molly Maguires” remains a singular chapter in U.S. jurisprudence. Irishmen who asked to be tried “by God and our country”[1] found themselves instead trapped in an extra-legal maze that had been years in the making.

John Kehoe to W. R. Potts, Circa March 1878

Special Prosecutor
Franklin Gowen

Chief prosecutor Franklin Gowen also served during Pennsylvania’s “Molly Maguire" trial years as president of the Philadelphia and Reading Railroad, president of the Philadelphia and Reading Coal and Iron Company, and head of the region’s “Coal Combination,” a cartel of railroad and coal interests. Gowen spent the first half of the 1870s crafting a playing field for the hearing of the “Molly Maguire” caseload. Using his legal training, the railroad president methodically tilted the plane of Pennsylvania’s criminal justice system to serve his interests. His power grab extended to Pennsylvania’s judicial, legislative, and executive branches of government.

In spring 1878, three defense attorneys for John Kehoe presented Kehoe’s case to Pennsylvania’s Board of Pardons at Harrisburg. The attorneys petitioned in support of Kehoe’s request for commutation of his death sentence, issued in 1877 on his conviction for the 1862 murder of mine foreman Frank Langdon.

In a document titled “A Brief Statement of the Facts to be presented to the Board of Pardons at Harrisburg, April 9, 1878,” Kehoe’s attorneys concluded: “As to the trial of this cause, we have only to say that the proceedings, to our minds, were extraordinary. The rules of evidence were strained to a tension never before heard of in the history of criminal jurisprudence; principles of law established that are dangerous in the extreme; and precedents set which, if followed, will make it impossible for innocent persons to obtain justice in a Court of law.”[2]

The legal proceedings during Pennsylvania’s “Molly Maguire” trials flowed from one side only: that of the prosecution. Kehoe described them succinctly. In a letter written from his jail cell at Pottsville, the Ancient Order of Hibernians (AOH) delegate told his friend Ramsay Potts, an attorney of Quaker heritage, “it was All Jug handled Justice.”[3]

Gowen’s grip on the jug handle, along with that of his political and industrial colleagues, never wavered. It assured that for half a decade, legal events in Pennsylvania’s hard coal region flowed precisely as intended.

Pinkerton Abuse of Habeas Corpus

T
hroughout the four-year cycle of “Molly Maguire” trials, Pinkerton operatives in Franklin Gowen’s employ completed dozens of arrest warrants. Gowen’s private Coal and Iron police force made arrests under Pinkerton supervision. A Pinkerton operative provided the initial trial testimony on which all cases were based. A second Pinkerton advised the Board of Pardons on cases pending hearings. Officials under Pinkerton supervision conducted habeas corpus hearings, if they conducted them at all, in whatever jurisdiction they saw fit.

On the arrest of Carbon County AOH delegate Thomas Fisher, the Mauch Chunk Democrat commented: “Pat McKenna of Storm Hill (Lansford) was arrested at the same time on a similar charge, and both are now in Pottsville jail. But why in a Schuylkill county prison when the offense was committed in Carbon, we cannot comprehend.”[4]

During Fisher and McKenna’s trial, Pinkerton operative Robert Linden testified: “Did not arrest Fisher and McKenna myself; only sent the warrants issued for their arrest ... I instituted this prosecution; acted in this on the orders of Pinkerton’s National Detective Agency, at Philadelphia.”[5]
Pinkerton Operative
Robert Linden

Defense attorney John Ryon questioned Linden during the Columbia County trials of Patrick Tully and Peter McHugh:“Did these … men ever get a hearing before they entered this court?” Linden replied: “I don’t know, sir. … Not to my knowledge.” Ryon asked: “Why did you prosecute these prisoners in Schuylkill county?” Linden replied: “Because the witness was in Pottsville and it was cheapest [sic] to take the prisoner to the witness than the witness to the prisoner.”[6]

John Reese, of Gowen’s Coal and Iron police, issued subpoenas in the case of alleged “Molly” Patrick Hester. David Brown, a Gowen employee, testified during Hester’s trial. “Who subpoenaed you?” defense attorney Ryon asked. “Mr. John Reese,” Brown responded. “What is his business?” Ryon asked. “Superintendent of the Reading coal and iron company,” Brown responded.[7]

In spring 1876, the Shenandoah Herald commented breezily on the arrest of Edward McGee: “While on the way to the ‘squire’s office from the depot McGee attracted considerable [sic] more attention than seemed to be desirable, for when the ‘squire informed him that he would for some time find accommodations in the jail he became quite abusive and mentioned that it was ‘a hell of a law that would send a man to jail without a hearing.’ Without giving the fellow a chance to express himself at greater length, the officers ran him up to jail, still accompanied by an immense crowd.”[8]
Prosecution Witness
James Kerrigan

One widely used prosecution witness, James Kerrigan, did give habeas corpus testimony in the proper jurisdiction. The MauchChunk Democrat leaked Kerrigan’s testimony, severely prejudicing subsequent cases. Historian Judge John Lavelle notes: “Kerrigan’s testimony was totally irrelevant in the habeas corpus proceedings in Schuylkill County and could have only one purpose—to bias potential jurors and intimidate the defense.”[9] The depth of abuse of this issue can only be guessed.

Systematic Exclusion of Irish Catholic Jurors Violates Due Process

T
he Irishmen who asked to be tried “by God and our country” meant the United States. Of the trial of Michael J. Doyle for the murder of John P. Jones in January 1876, historian Kevin Kenny states: “the trial set some important precedents. The jury included no Irishmen and was manned primarily by German-speakers from the periphery of Schuylkill County, some of whom knew little or no English.”[10]

The New York Times described the twelve jurymen who witnessed six “Molly” executions at Pottsville on June 21, 1877. “At 10:41 o’clock,” the Times reported, “12 jurymen, all of Pennsylvania Dutch descent, filed out of the door of the extension and took position in front of the rope, facing the gallows.”[11]

Five of the six Hibernians hanged at Pottsville that day were convicted of conspiracy to murder police officer Benjamin Yost. At the Yost trial in May 1876, counsel questioned jurors in voir dire proceedings. When asked: “‘Do you understand English?’” Levi Stein responded: “‘I don’t understand half what is said.’” The Shenandoah Herald reported Stein’s questioning: “He [Stein] raised a grin by saying in answer to the question—‘Do you do your business in English or Dutch?’ ‘I do.’ The defense challenged Stein for cause. Stein raised another smile by saying: ‘I understand all that the court says.’”[12] The Schuylkill court overruled the defense challenge and seated Stein as a juror.

Prospective juror William Becker told the court: “‘Should like to be questioned in Dutch, as my knowledge of English is very slight. … I am not opposed to hanging.’” The court determined that Becker “could read, write, and talk English to some extent.” Becker observed: “‘I do not think that I could understand all the testimony, and I would like to do so in this case.’”[13] Defense counsel challenged Becker for cause. The court seated Becker as a juror.

The Herald said of a third juror in Yost: “Paul Artz, of Hurbley, hadn’t any scruples, and wasn’t sure that he heard of the case, but thought that he could understand English sufficiently to try the case. He was sworn and took his seat.”[14]

For his 1994 work, Lavelle studied the mechanics of jury selection by Carbon County’s commissioners. Lavelle, himself a Carbon County judge, found that for many years prior to the “Molly” trials, commissioners were provided with the political affiliations, religions, and national origins of prospective jurors, and could make choices based on this knowledge. In 1876, during Carbon County’s “Molly” trials, Lavelle notes this bias “produced virtually no representation of the Irish community.”[15]

In at least one instance, prosecutors chose a non-U.S. citizen to serve. In Dennis Donnelly’s case before Pennsylvania’s Board of Pardons, his counsel informed the board that one of the jurors in the case was not a citizen when the verdict was returned. “The Board decided to take no action in the matter until the Supreme Court had passed upon it,” the Miners’ Journal said. “It is not thought that they will be successful in their effort.”[16] A month later, the commonwealth executed Donnelly.

Rigging the Jury Wheels

I
n 1872 the Bloomsburg Columbian instructed its readers in the use of their county’s jury wheel. The Columbian hailed from Bloomsburg, Columbia County’s seat. Three AOH men would be tried there in 1877.

Each year, the Court of Common Pleas announced the number of potential jurors needed based on the number of assessed voters. A judge and two commissioners nominated jurors of their own choosing. Slips with the handpicked names were folded and “according to an act of assembly … placed separately in the jury wheel, whence they are drawn.”[17] As in Carbon County, names drawn from the wheel included only previously approved jurors.

By December 1876, Schuylkill County had thrown out all pretense of legality for its jury wheel contents. “WHAT THE LAWYERS Don’t Know About Wrangling Isn’t Worth Knowing,” ran a Shenandoah Herald headline in March 1877. “Has the Jury Wheel Been Properly Filled or Not is the Question at Present on the Carpet.”[18]

In mid-March 1877, attorney John Ryon presented a motion to quash the array of jurors. Ryon protested that commissioners inducted into office on the first of the year should have filled the wheel. Outgoing commissioners with “no right whatever to fill the wheel” had usurped that duty. “The filling of the wheel,” Ryon said, “was illegally done and should be considered void.”[19]

Ryon questioned jury commissioner Koehler during the hearing. The Herald noted: “The old gentleman’s memory must be of a very inferior character, as in addition to forgetting how he forgot to sign his name he also forgot whether it was in December or January that he helped to fill the wheel, and couldn’t even tell whether it was before his term of office had expired.”[20]

Helms, a second Schuylkill jury commissioner, testified that he and a fellow worker had filled the wheel in both January and December of 1876, an action declared illegal by Ryon. When asked why he filled the wheel in December instead of allowing his successors to do so, Helms replied: “’I received an order from the court to that effect.’”[21]

Gerrymandering also ensured the placement of pre-determined candidates in jury wheels. In his memorandum written in 1978 in support of the application for John Kehoe’s posthumous pardon, attorney John Elliott stated: “Petitioner’s jury was chosen from a specially created judicial district which gerrymandered Lebanon County onto Schuylkill County for the purpose of obtaining non-English speaking jurors.” According to Elliott’s research, at least two of the jurors who heard Kehoe’s case could not speak English.[22]

The Ancient Order of Hibernians, Commonly Known as “Molly Maguires”

T
he testimony of undercover Pinkerton operative James McParlan assured that AOH defendants charged as “Mollies” would not be tried as individuals. McParlan, hired by Franklin Gowen, traveled the coal region undercover for more than two years under the alias “James McKenna.” Early in the trials McParlan, at Gowen’s prompting as special prosecutor, charged that in Pennsylvania’s hard coal region, the AOH and the “Molly Maguires,” an alleged terrorist organization with roots in Ireland, were one and the same. In the trials that mushroomed from McParlan’s conspiracy theory, juries in five counties convicted twenty-one Hibernians of first-degree murder. All were hanged. Dozens more, convicted of lesser charges, served prison sentences.
President Judge
Cyrus Pershing

Judge Cyrus Pershing presided during the Yost murder trial, where McParlan gave his first turn as star prosecution witness. The previous year, Pershing had been defeated in his gubernatorial bid. Schuylkill’s Hibernians actively campaigned against him.[23] The year after his defeat, Pershing instructed the Yost jury: “Crime usually is difficult to detect, but more than difficult when perpetrated by a secret society such as the ‘Mollie Maguires,’ and in a case of this kind other than the usual means were resorted to.”[24]

Pershing instructed the jury: “Of the truth of McParlane’s [sic] statements the jury is the judge; but his familiarity with persons and places, and the manner in which he reported to his superiors are so many points in his favor. Every government has now its detectives, and they are found very useful in the detection of crimes committed by banded assassins.”[25] Pershing’s characterization of AOH defendants as “banded assassins” during this early trial resonated with the Yost jury and with juries to follow.
Special Prosecutor
Francis Hughes

Democratic Party elder Francis Hughes, a close colleague of Franklin Gowen, served on the committee at Erie that nominated Pershing for governor in 1875. The Scranton Republican reported on proceedings: “Mr. Hughes was the personal champion of the successful candidate, and he may well feel elated at his victory over the discomfited clans that went down, one after the other, as the banner of Pershing, in the hands of Hughes, swept by degrees to the front.”[26] A year later Hughes appeared before Pershing as a prosecutor where he helped to convict, and eventually execute, AOH defendants who had challenged Pershing’s 1875 candidacy.

In October 1876, in a spectacular departure from the “Molly” criminal case at hand, Hughes solicited admissions from defendant John Slattery of Hibernian “vote selling” during the 1875 Hartranft-Pershing contest. Slattery, an AOH member and former divisional mine union president[27] who had narrowly missed an election to a judgeship, fought back tears while he gave the testimony that likely saved his own life.[28] Hughes’s solicitation of Slattery’s testimony, which had no relevance to the trial at hand, gave newspapers carte blanche to accuse Pennsylvania’s Republican Party of corruption during the bitterly contested 1876 Hayes-Tilden presidential race.

Two months before, Hughes had advised the jury in Yost of the pending charges of conspiracy to commit murder: “there is only one of two verdicts that you can return, and that is murder in the first degree or not guilty. … The prisoners are each and all of them ‘Mollie Maguires.’ They belong to that order, which, under the mask of the name of the Ancient Order of Hibernians, has committed crimes, committed by the ‘Buckshots’ or ‘Mollie Maguires.’ … affairs are situated so that it must be either ‘Mollie Maguires’ and anarchy, or that ‘Mollie Maguires’ MUST BE EXTERMINATED, not only in the coal regions, but I wish I could say throughout the world.”[29]

Of affairs in the coal region, Hughes told the jury: “If it is necessary to hang five hundred or a thousand ‘Mollies’ at the end of a rope to restore peace and quietness, why let us try THE SURGICAL OPERATION (and see how it will work).”[30]

Argument, Francis Hughes
Yost Trial, July 1876

The commonwealth made no pretext that the Irish Catholic defendants would be tried as individuals. In the trial of John Kehoe for conspiracy to murder William Thomas, the official trial transcript reads: “REPORT OF THE CASE OF THE COMMONWEALTH vs. JOHN KEHOE ET AL, MEMBERS OF THE ANCIENT ORDER OF HIBERNIANS, COMMONLY KNOWN AS ‘MOLLY MAGUIRES.[31]



A Special Class of Cases

J
udge William Elwell of Columbia County offered a definitive judicial statement during the “Molly” prosecutions. At issue was the discharge from jail of prosecution witness Daniel Kelly. Kelly’s testimony convicted alleged “Mollies” Patrick Hester, Peter McHugh, and Patrick Tully for the murder of Alexander Rea.

Kelly, like infamous prosecution witness James Kerrigan, testified to participation in a fantastic scheme of conspiracy to commit murder. Kelly’s testimony, like Kerrigan’s, helped convict numerous AOH defendants. After testifying successfully Kelly and Kerrigan, both self-confessed murderers, secured release from prison and immunity from further prosecution.
Prosecution Witness
Daniel Kelly,
a.k.a. "Manus Cull"

Elwell discharged Kelly under the “two-term rule.” The judge explained: “There being now nothing presented against Daniel Kelly at this second term, the Court (and we may say we do it concurring with the action of the prosecutor) discharge [sic] Daniel Kelly from further custody; he is entitled to it under the law, and must, therefore, be discharged.” Elwell concluded: “We may add that, in this disposition of this case, the district-attorney here, the prosecutor, and the Court are only following the precedents which have been set in all this class of cases throughout the commonwealth during the past two or three years.”[32]

Pennsylvania’s “Molly Maguire” cases had not even the appearance of equal protection under the U.S. constitution. According to a coal region judge, they constituted a special “class of cases.”

AOH Defendants Denied the Right to Testify

I
n winter 1876 Pennsylvania’s legislature considered a bill critical to ongoing “Molly” prosecutions. At issue was the right of defendants to testify in criminal cases. In early February, Pennsylvania’s state senate defeated the bill on third reading.[33] If enacted, it may have saved many lives.

The Harrisburg Telegraph called the proposed bill “a most vicious proposition.” It advised: “Let this monster be disposed of summarily. The old law of evidence is good enough. We don’t want experiments.”[34]

The existing law on this issue during the “Molly” trials is murky. Very few defendants testified on their own behalf. Those who took the stand as defendants, as did Patrick Butler, Michael Lawler, and Frank McHugh, pivoted to give evidence used to convict fellow AOH defendants.

During closing arguments in the Thomas conspiracy trial, defense attorney James Ryon told the jury of the AOH defendants:

… I undertake to say that you will never take the word of a stranger like McParlan when arrayed against the testimony of men whom you know to have good characters, and who have sworn that the reputations of these persons for peace and good order are good in the communities in which they live. McParlan is a witness, and these eight men are charged with a crime which prevents them from going on the stand and telling their story. The Commonwealth had a right to place them under an indictment and charge them with crime, but in so doing, their mouths are closed and you are thus prevented from hearing their side of the story.[35]

AOH defendants sat through their trials under a seal of silence. In the Thomas conspiracy trial, attorney Martin L’Velle rose at the introduction of defendant Frank McHugh “to object that this man was one of the defendants and therefore not qualified to testify.”[36] The court overruled L’Velle’s objection, whereupon McHugh offered testimony not as a defense, but as a prosecution witness.

During opening remarks for the Thomas conspiracy trial, defense attorney S. A. Garrett instructed the jury: “In the first place, you must remember that every man who was present at that meeting, when this conspiracy is alleged to have been conceived, has been arrested. Their mouths are closed, and we cannot detail before you one single thing that there took place. No matter if nothing at all took place; if nothing was said in regard to those matters which the Commonwealth’s witnesses have testified to; no matter how innocent the prisoners may be, they never can prove it.”[37]

If Garrett’s statement accurately represents Franklin Gowen’s prosecution strategy, any number of men, on evidence given by prosecution witnesses, could have been arrested as members of a murderous conspiracy. If one of Gowen’s rogue’s gallery of prosecution witnesses pointed his finger, not one AOH defendant indicted as a co-conspirator could then testify on his own behalf. In Garrett’s words, “no matter how innocent the prisoners may be, they can never prove it.”[38]

In April 1878, a bill to allow defendants in criminal cases, including homicides, to testify when two or more defendants were jointly indicted passed a third reading in Pennsylvania’s House of Representatives.[39] By this time, most of the “Molly” defendants had been convicted. Many had been executed. A revised bill would not help their cases.

The legality of this strategy has never been raised. It goes far toward explaining the veil of silence that shrouded the trials of these Irish Catholic defendants.

AOH Defense Witnesses Arrested for Perjury

I
rish Catholic defense witnesses, too, were rendered mute. The fate of William Callahan and John McShea warned all who considered testifying against James McParlan. During the trial of Alexander Campbell, Callahan testified: “McParlan came to my house. … He wanted to have Gomer James put out of the way. … He asked me to furnish men to do it. Couldn’t say how long before the killing of Gomer James this was. Didn’t inform on him, nor notify the intended victim. Didn’t pay any attention to this.”[40] Three weeks after Callahan accused McParlan of conspiring to murder James, the commonwealth arrested Callahan for perjury.[41]

McShea testified that McParlan had “solicited him to testify to Kerrigan’s presence at a wake,”[42] in what would be perjured testimony. A few days later, McShea was arrested and charged with perjury.[43] The threat of prison did not dissuade McShea. Three months later, at his trial, McShea repeated his testimony against McParlan. The Shenandoah Herald reported: “he had cheek enough to take the stand and tell the foregoing story, which he said he would swear to ‘upon all the Bibles in Mauch Chunk.’”[44]

Bridget Hyland corroborated Thomas Munley’s alibi.[45] A week later the Shenandoah Herald reported: “Mrs. Hylan [sic], of Jackson’s patch, the witness who swore in such a bare-faced manner in favor of Thomas Munley’s alibi, was arrested last evening and brought to Pottsville this morning. Accommodations in jail will be at once provided for her if sufficient bail cannot be raised.”[46]

Five days later, the arrests of Hyland and McShea produced the desired effect. The Shenandoah Herald reported from Pottsville: “THE YOST TRIAL. THE DEFENSE RUN OUT OF WITNESSES. Very Few Witnesses Examined.”[47]

But still, defense witnesses came forward. James Duffy testified against star prosecution witness James Kerrigan. “I didn’t come here to perjure myself, and I’ll allow no man to drag anything out of me,” Duffy told Gowen on cross-examination.[48] The following day Bernard Boyle testified on behalf of James Boyle, a relative of Bernard’s by marriage.[49] The commonwealth arrested both Duffy and Boyle for perjury.[50]

Still others came forward. Michael Munley testified on behalf of his brother Thomas. The commonwealth convicted Munley of perjury.[51] Bernard Hayes testified against McParlan, calling the detective “the leader of the mob”[52] that marched from Shenandoah to Mahanoy City during the turbulent last days of the miners’ Long Strike. The commonwealth convicted Hayes of perjury.[53]

Pinkerton Operative
James McParlan,
a.k.a. "James McKenna"

Franklin Gowen’s gagging of witnesses who implicated Pinkerton operative McParlan in crime may have been well placed. In an interview given shortly after the mass hanging at Pottsville, John Kehoe told a reporter: “After [McParlan] came among us there were several murders committed, some of which he encouraged, and all of which, if he had been a true man, he could have prevented. … it served his purpose to let murder go on, so that he could more readily arouse the prejudices of the community and thus break up the organization by hanging a lot of innocent men. I could fill your paper five times over telling of the actual participation of this man in the crimes for which he now condemns others. He even went through the county in carriages looking for men to go and shoot other men. This I have from those who were in the carriages with him.”[54]

Thirty years after the trials at Pottsville, a reporter for the Appeal to Reason interviewed residents of Schuylkill County. He concluded: “Old citizens of Schuylkill county, who attended the trials, and heard the evidence, declare that McPartland [sic] convicted himself again and again. It was manifest to everyone that he was the man who should be hanged—not any one of the men whom he accused. In the commission of the murders, according to testimony given by ‘McKenna’ before the court, he exchanged coats with the man who was selected to do the job. … witnesses who saw the shots fired were mistaken in their identity of the assassin … It is passing strange that the man who wanted to kill another invariably wore ‘McKenna’s’ coat when about to commit the crime!”[55]

Those who challenged Gowen’s use of McParlan’s testimony in 1876 fared badly. During the Yost trial, fifteen-year-old Kate Boyle offered alibi testimony for her uncle, James Boyle, a Summit Hill AOH member. Gowen questioned Kate closely about her movements on the evening in question. The railroad president also grilled the girl on the whereabouts of “Johnny Mulherrin,” an unknown player in these events. Kate responded: “I don’t know where Johnny Mulherrin is; I guess you will have to get a detective to find him.”[56]

The commonwealth arrested Kate Boyle for perjury based on the oath of Pinkerton agent Robert Linden.[57] On the day of her sentencing, the Coal and Iron police bound her in chains, along with nineteen other defendants, and led them all before Judge Pershing.[58] The headline in the Philadelphia Times ran: “AVENGING JUSTICE. A GREAT DAY IN PERSHING’S COURT. He Gives Twenty Mollies, Including Two Women, the Severest Penalty the Law will Permit and Regrets his Power is Limited.”[59]

Kate Boyle received two-and-a-half years’ imprisonment at labor. She remained serving her sentence at Pottsville Jail on the day that six Hibernians, including her uncle, were hanged as “Mollies.” She attended the mass said in a jail cell that morning on her uncle’s behalf. She was, at that time, sixteen years old.

Ineffectiveness of Defense Counsel

M
uch of the defense offered by AOH counsel in the anthracite region trials proved ineffective. Historian Kevin Kenny points to defense counsel’s “deficient and highly questionable” performance, especially regarding the dearth of Irish Catholic jurymen.[60] In particular, Kenny mentions the case of AOH officer Alexander Campbell, where jurors were seated who had admitted “that they had already formed an opinion” about Campbell’s guilt.[61]

Defense counsel’s inadequacy in other cases defies understanding. At the close of the Major conspiracy trial in September 1876, the Philadelphia Times reported: “The defendants offered no testimony, nor was the jury inflicted with any addresses of counsel.”[62]

Jurors Recant, to No Effect

M
any jurors in “Molly” trials whose names had been placed with such care into jury wheels recanted their decisions to convict. Robert Difendorfer, writing in June 1880 to Pennsylvania’s Board of Pardons for clemency for alleged “Molly” Christopher Donnelly, stated: “His conviction occurred when every honest citizen’s indignation was justly aroused because of the many crimes that had been committed, and all that was really necessary to convict was to prove that the defendant was a member of an organization intent upon committing crime. In such times honest men as Jurors may over-reach the demands of Justice.”[63]

Difendorfer had “frequently met” with Donnelly, AOH treasurer for Schuylkill County, and found Donnelly “so far superior in conduct and gentlemanly bearing,” he felt moved to appeal on Donnelly’s behalf. Of the jurors in Donnelly’s trial, Difendorfer stated: “In looking over the list of names on his petition for release I find that more than half of the Jurors sitting at the time of his conviction … now after four years have elapsed and prejudice no longer holds dominion over reason they ask for his pardon.”[64]

A letter on file from Pinkerton operative Robert Linden dating from October 1882 gave the pardon board strict instructions against recommending Donnelly’s pending request for pardon.[65] The commonwealth held Donnelly in prison until April 1887, when his pardon finally issued.

Jurors for alleged “Molly” Thomas Duffy also urged clemency. A petition filed on Duffy’s behalf characterized him as “resident of Schuylkill County more than twenty years and has always maintained an irreproachable character for peace and good order. As a citizen he always stood high and was among the most respected.” Duffy’s conviction “was procured through the prejudice and excitement” that prevailed. The Hibernian had “a large circle of near and respectable friends” and had always been “industrious and energetic in the pursuit of his business.” A “young man in the prime of manhood,” he represented the sole support of “an aged and decrepit father and mother.”[66]

Duffy’s brother Patrick filed a petition on his behalf. Patrick had procured the signatures of nine of the jurymen who convicted his brother, and believed that “if he had had sufficient time he could have procured the signatures of the other three in favor of the Commutation of the sentence of the said Thos Duffy.”[67] Five days after Patrick filed his affidavit, the commonwealth executed his brother.

Pennsylvania’s Supreme Court Imposes a Burden

I
n early February 1877, the Harrisburg Patriot published a column headlined: “IN THE SUPREME COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. RULES OF COURT Adopted for the Return and Hearing of Writs of Error in Capital Cases.[68] Many anthracite region “Molly” cases had been decided in county courts by this time. Many defendants had been sentenced to death. Effective January 15, 1877, the ruling of Pennsylvania’s Supreme Court created a burden for impoverished defendants who considered this court their only hope. Number 4 of the court’s new ruling required all petitioners to submit a published summary of their trial, called a “paper book,” to the district attorney before their case went to a hearing.

National and state AOH branches had long since withdrawn support from Pennsylvania’s AOH defendants. Many were mineworkers. Many had large families. Pennsylvania’s highest court could, effective March 1, 1877, refuse to hear the cases of men who did not have the funds for publication of the newly required paper books.

Two months after the court issued its ruling, the Shenandoah Herald reported: “THE SUPREME COURT. Full Report of Yesterday’s Proceedings in the ‘Mollie’ Cases. Applications Made for Continuances the Prisoners Being too Poor to Get Their Paper Books Printed.” Attorney John Ryon argued that “his clients had not been able to raise sufficient money to defray the expenses of having their paper books printed; that only half the book was printed; that on account of the importance of the case every opportunity should be afforded his clients of preparing themselves for an effort to save themselves from what he considered an injustice.”[69]
Shenandoah Herald, March 13, 1877

Martin L’Velle, arguing the issue on behalf of Thomas Munley, said: “[Munley] and his friends have used all possible means and exhausted all practicable efforts to procure the necessary expenses of paper books in this case, and … in all such means and efforts to procure the said expenses of said paper books he and his friends have been entirely unsuccessful.”[70] The timing of Pennsylvania’s Supreme Court’s ruling; its instatement at the precise time that AOH cases were due to be heard, left impoverished defendants without a defense.

Lower court judges posed similar obstacles. In communities energized by the steady drumbeat of local editors against all supposed “Mollies,” judges routinely denied defendants’ requests for changes of venue. As stated by Lavelle of six pending “Molly” cases in Carbon County, “Under the law which controlled these proceedings in 1876 it would be difficult to imagine more compelling cases for removal.”[71]

Corporate Interference in the Courts and the Pardoning Power

I
n 1873, Pennsylvania revised its state constitution. Franklin Gowen served as one of four delegates-at-large to the convention held to debate the revisions. With his attendance, the railroad president left a public record of his interference in state legislative, judicial, and executive matters.

Buried within the convention’s proceedings is news of the 1875 disbandment of Schuylkill County’s criminal court, scheduled for December 1, 1875, ten days before a murderous early morning vigilante raid against John Kehoe’s relatives at Wiggan’s Patch.[72] Schuylkill’s Court of Oyer and Terminer, with Cyrus Pershing as president judge, would from that date forward hear all cases arising out of the “Molly Maguire” conflict.[73]

The issues debates during the 1873 constitutional convention did not tie Gowen directly to the abolishment of Schuylkill’s criminal court system. Gowen’s influence on that action can only be guessed. On another issue, Gowen left nothing to chance.

Regarding executive authority to grant pardons in capital cases, Gowen told delegates: “The question of the pardoning power in this Commonwealth has attracted a great deal of public attention during the last two or three years. It may be very well in theory, and probably in practice, to admit the fact that mercy is one of the most graceful attributes that can deck the Executive office of this Commonwealth, but at the same time we cannot help admitting that the stream of mercy has flown in such copious volumes during the last two or three years, that if the public can reach this question they will be very apt to take the pardoning power out of the hands of the Executive altogether.”[74]

Gowen’s grandiloquence masked the danger that lurked in the divestment of Pennsylvania’s executive power. “I think it is well,” Gowen concluded, “to follow the suggestions of the committee for some advisory board, and I think three or four are enough.”[75] Two years prior to the start of Pennsylvania’s “Molly Maguire” trials, its constitutional convention authorized Gowen’s four-man pardon board, manned by Pennsylvania’s lieutenant governor, secretary of the commonwealth, attorney general, and secretary of internal affairs. Gowen would extend his authority over the commonwealth’s new Board of Pardons through the actions of his paid agent, Pinkerton operative Robert Linden.

In 1882, Linden advised the board in the case of Christopher Donnelly.[76] Linden reminded board members that per Pinkerton operative James McParlan, Donnelly had participated in meetings to discuss conspiracies to commit murder. “Should there be any other facts wanted relative to the ‘Mollie Maguires’, I think I will be able to furnish them at any time,” Linden informed the board.[77] With Linden’s signature on “Molly Maguire” arrest warrants, and his advice to Pennsylvania’s Board of Pardons at the trials’ conclusions, the commonwealth ceded a dangerous and arbitrary power to a Pinkerton operative in the employ of a coal and iron company president.

Tying the Ropes

D
uring spring 1877, the Shenandoah Herald reveled in the details of the upcoming executions. In a small article titled “The Hangman’s Rope,” the Herald told readers: “It is made of fine American hemp and is a little over a half inch in thickness.”[78]

The New York Times recorded the six June 21, 1877, executions at Pottsville Jail in graphic detail.[79] The reporter gave readers precise information regarding the fastening of ropes around prisoners’ necks.

“At the last minute, the Sheriff decided to hang two men at a time, because he feared that the inexperience of his assistants might lead to a scene should the six be placed upon the scaffold at one time,” the Times reported. James Boyle and Hugh McGehan appeared first. “Boyle gave one heave of his breast after the twirling ceased, and never moved again. McGehan’s body writhed from head to feet for fully two and a half minutes. The knot had slipped exactly under his left ear. Boyle’s was at the back of his neck, a little to the right.”

The coroner’s jury, reported the Times, “rendered a verdict that Boyle had died of shock and McGehan of strangulation.” The knot around McGehan’s neck, which “had slipped exactly under his left ear,” caused him to die not of a broken neck, but of strangulation.

James Carroll and James Roarity appeared next. “Both knots remained under the left ears,” stated the New York Times reporter. “The second jury decided that both died of strangulation.” Thomas Duffy and Thomas Munley appeared last. “At 1:20 o’clock the traps were sprung, both knots lodging under the left ears,” the Times reported.

The reporter’s insistence on this detail appears clear. Knots tied firmly at the base of the neck gave prisoners the chance of a quick death through a broken neck. Knots “lodging under the ear” gave prisoners a good chance of a slow death through strangulation.

The coroner’s jury in Pottsville ruled that the last four of the six Irishmen hanged that day died through strangulation. They did so in sets of two, in front of a crowd of people. The strangulations sent a message to Hibernians who continued to advocate on behalf of regional workingmen. In combination with Gowen’s mounting assault on the rising order of the Knights of Labor, the message worked. The anthracite region would not see another mineworkers’ strike until the following century.

Pennsylvania’s “Molly Maguire” executions took place from mid-1877 through late 1879. After eleven executions on June 21, 1877, many AOH defendants remained in area prisons, awaiting execution. They knew that through ineptitude or malicious intent, they stood a good chance of being strangled to death before a gaping crowd.

At least fourteen of the hanged men were married. At least nine were aged forty or older. The executed fathers left behind at least forty-two children, and at least one grandchild.
Executions took place in five Pennsylvania counties, in Bloomsburg, Jim Thorpe, Pottsville, Sunbury, and Wilkes-Barre. Workmen constructed gallows that gave spectators a full view of the final struggles of the dying men. In instances where men strangled to death, spectators stood or sat for the long minutes while the Irishmen, their heads covered in white hoods, writhed above them. In Carbon County’s Mauch Chunk Jail, spectators watched the struggles from a setting that resembled an indoor theater.

Bounties for Scalps: A Move for a Statewide Detective Force

O
ne proposed legal obscenity was never instated. In January 1876, on the same day that Pennsylvania’s House of Representatives considered an act giving bounties on wildcat, fox, and skunk scalps, it considered the supplement to an act “relative to the appointment of special detective officers in the several counties of this Commonwealth.”[80] By this time, Gowen’s “Molly Maguire” trials had been under way for several months.

Nine days later, the state senate passed the bill on second reading. The Harrisburg Telegraph reported: “The bill gives the detectives the same powers as are now exercised by constables in criminal cases.”[81] The senate passed the bill on St. Patrick’s Day.[82]

At its passage, the Philadelphia Times called the bill “THE LATEST DETECTIVE DODGE” and “Sleepy Legislation at Harrisburg.” The bill, said the Times, asked the legislature for “the power to make indiscriminate arrests.” It called for the establishment of a “private detective association” for the entire state, subject to “no definite supervision,” with members empowered “to make arrests without warrants whenever they may believe crime has been committed,” and operatives paid “whatever fees the association shall deem proper for their services.”[83]

An unnamed state senator declared the bill’s passage an outrage, one that “would never have taken place if the Senators had known what they were doing.” The unnamed senator did not know who backed the bill, but had seen “a great many detectives from all parts of the country up at Harrisburg” and had “every reason to believe that the people who are interested in the matter are no better than the thieves themselves, and to invest such people with extraordinary powers of the kind asked for would be an outrage on the community at large.”[84]

In spring 1875, at least six Pinkerton operatives had installed themselves at Harrisburg to report to Gowen on workingmen, including one alleged “Molly,” who advocated through the Pennsylvania legislature for anti-monopoly reform against Gowen’s railroad.[85] Whether those same Pinkertons helped push for passage of the 1876 bill is not known.

The outrage of the city editor in Philadelphia may have aborted the passage of the statewide detective bill. It does not appear to have passed the state legislature.

An Indelible Stain on Pennsylvania’s Jurisprudence

I
n 1979, a century after John Kehoe’s execution as a “Molly,” the Commonwealth of Pennsylvania issued Kehoe a posthumous pardon. It remains one of very few such pardons issued by the commonwealth.

John Elliott served as an attorney of record for the pardon’s request. Elliott reviewed the findings of this essay in full. The paragraphs below comprise his summary of Pennsylvania’s “Molly Maguire” prosecutions:

The blatantly unconstitutional judicial lynchings that have forever defined these “Molly Maguire” executions remain an indelible stain on the commonwealth’s history. Irish Catholic labor advocates were framed for murder on perjured evidence from the Pinkertons’ private detectives. These detectives were hired by the anthracite region’s most powerful coal and iron company; its president, Gowen, had personally divested Pennsylvania’s governor of his power to pardon. Denied proper habeas corpus proceedings, AOH defendants stood trial in courtrooms guarded by Coal and Iron policemen. This private Gestapo repeatedly violated fundamental due process as the Reading Coal and Iron Company accused defendants of perjury, thereby chilling the exercise of fundamental constitutional sixth amendment rights.

Pennsylvania’s AOH defendants prosecuted as “Molly Maguires” faced special prosecutors in the employ of regional railroads and coal and iron companies. They faced judges with ties to those companies; judges who repeatedly denied changes of venue while unconstitutionally declaring these a special “class of cases.” Area newspapers working in concert with Gowen and the coal barons repeatedly and vociferously attacked the AOH defendants as “Molly Maguire” assassins. The commonwealth itself identified the AOH as “the Molly Maguires.” Judges statewide, including the Pennsylvania Supreme Court, established uniquely onerous obstacles that doomed all of the “Molly Maguire” defendants. Most shamefully, Pennsylvania’s highest court denied its most vulnerable citizens the fundamental rights of due process and equal protection.
        
The AOH men executed as “Molly Maguires” were tried under a legal system contrived and orchestrated by Franklin B. Gowen. Gowen’s private Gestapo arrested these Irishmen whose political power was increasing, using warrants filled out by Pinkerton operatives in Gowen’s employ. Gowen himself served as special prosecutor in the most important “Molly Maguire” trials. Others with close political and economic ties to Gowen also served as special prosecutors. Other Pinkerton operatives in Gowen’s pay manipulated Pennsylvania’s Board of Pardons against the Irish Catholic defendants. A Pinkerton employee, according to archived reports, also helped craft prosecution testimony.[86] Gowen himself proactively helped create Pennsylvania’s Board of Pardons to take away the governor’s right to grant pardons.

The “Molly Maguire” executions were contrived by Gowen, Allan Pinkerton, and those acting in concert with them to destroy the miners’ union. This fundamental violation of constitutionally protected due process and equal protection leaves an indelible stain on Pennsylvania’s jurisprudence.


A. Flaherty © 2016


This column was updated October 19, 2016.

_________________
Notes

[1] For this declaration made by James Roarity on behalf of himself and fellow defendants, see Shenandoah Herald, May 12, 1876.
[2] A. Campbell, S. A. Garrett, John W. Ryon to Pennsylvania Board of Pardons, 9 April 1878, John Kehoe Clemency File, Department of Justice Records, Pennsylvania Historical and Museum Commission.
[3] John Kehoe to W. R. Potts, circa March 1878, John Kehoe File, M 170.18 MI, Schuylkill County Historical Society.
[4] Mauch Chunk Democrat, September 23, 1876.
[5] Ibid., December 16, 1876.
[6] Shenandoah Herald, February 16, 1877.
[7] Ibid., February 21, 1877.
[8] Ibid., May 26, 1876.
[9] John P. Lavelle, The Hard Coal Docket: One Hundred and Fifty Years of the Bench and Bar of Carbon County (Lehighton, 1994), 312.
[10] Kevin Kenny, Making Sense of the Molly Maguires (New York, 1998), 215.
[11] New York Times, June 22, 1877.
[12] Shenandoah Herald, May 12, 1876.
[13] Ibid.
[14] Ibid.
[15] Lavelle, Hard Coal Docket, 297.
[16] Miners’ Journal (Pottsville) May 10, 1878.
[17] Bloomsburg Columbian, December 20, 1872.
[18] Shenandoah Herald, March 21, 1877.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] John Elliott to Pennsylvania Board of Pardons, Memorandum in Support of the Application of John J. Kehoe.
[23] For the Hibernians’ 1875 campaigning against Pershing, see A. Flaherty, “That Lie on Governor Hartranft” (pending publication, this website).
[24] Shenandoah Herald, July 25, 1876.
[25] Ibid.
[26] Scranton Republican, September 14, 1875.
[27] For Slattery as union officer, see Pottsville Standard, July 6, 1872, WBA published resolution, District No. 10: “Mr. Slattery was one of the most active in organizing this district of the W.B.A., at a time when unionism met with formidable opposition from those whose interest it was to crush it in its infancy … he was our first President and first member who represented us on the County Executive Board” (italics in original).
[28] For Slattery’s testimony in the trial for the murder of Morgan Powell, see Shenandoah Herald and Philadelphia Times, October 23, 1876. For Hibernian participation in Pennsylvania’s 1875 gubernatorial campaign, see n. 23 above.
[29] Shenandoah Herald, July 24, 1876 (caps in original).
[30] Ibid. (caps in original).
[31] Report of the Case of the Commonwealth vs. John Kehoe et al. (Pottsville: Miners’ Journal Book and Job Rooms, 1876).
[32] Bloomsburg Columbian, May 24, 1878.
[33] Harrisburg Patriot, February 4, 1876.
[34] Harrisburg Telegraph, March 3, 1876.
[35] Commonwealth vs. Kehoe, 209.
[36] Marvin W. Schlegel, Ruler of the Reading: The Life of Franklin B. Gowen (Harrisburg, 1947), 136.
[37] Commonwealth vs. Kehoe, 138.
[38] Ibid.
[39] Bloomsburg Columbian, April 19, 1878.
[40] Mauch Chunk Democrat, July 1, 1876.
[41] Ibid., July 22, 1876.
[42] Ibid., July 1, 1876.
[43] Shenandoah Herald, July 5, 1876.
[44] Ibid., October 19, 1876.
[45] Ibid., July 7, 1876.
[46] Ibid., July 15, 1876.
[47] Ibid., July 20, 1876.
[48] Ibid.
[49] Ibid., July 21, 1876.
[50] For Duffy’s conviction, see Ibid., September 21, 1876; for Boyle’s sentencing, see Philadelphia Times, October 17, 1876.
[51] Shenandoah Herald, September 23, 1876.
[52] Ibid., October 19, 1876.
[53] Ibid.
[54] Philadelphia Times, June 27, 1877.
[55] Appeal to Reason, August 25, 1906.
[56] Shenandoah Herald, July 20, 1876.
[57] Kate Boyle Clemency File, Department of Justice Records, PHMC, 9 September 1876.
[58] Kenny, Making Sense, 225.
[59] Philadelphia Times, October 17, 1876.
[60] Kenny, Making Sense, 237.
[61] Ibid., 238. Regarding defense counsel’s performance, Kenny posits: “Reading through the trial testimony, one has a strong sense here that the defense attorneys were merely going through the motions of presenting a defense for their clients, while in reality being convinced as all other contemporaries that the Molly Maguires were guilty and deserved to die.” Ibid.
[62] Philadelphia Times, September 25, 1876.
[63] R. E. Difendorfer to Pennsylvania Board of Pardons, 14 June 1880, Christopher Donnelly Clemency File, Department of Justice Records, PHMC.
[64] Ibid. For the participation of Difendorfer and Donnelly in Greenback Labor Reform efforts, see A. Flaherty, “The ‘Molly Kings’ and Greenback Labor Reform” (pending publication, this website).
[65] Robert J. Linden to Chester N. Farr, Board of Pardons, 9 October 1882, Christopher Donnelly Clemency File, Department of Justice Records, PHMC.
[66] Petition, residents of Schuylkill County, to Pennsylvania Board of Pardons, Thomas Duffy Death Warrants file, Department of Justice Records, PHMC.
[67] Petition, Patrick Duffy to Board of Pardons, Ibid.
[68] Harrisburg Patriot, February 3, 1877.
[69] Shenandoah Herald, March 13, 1877.
[70] Ibid.
[71] Lavelle, Hard Coal Docket, 301.
[72] For date of disbandment of Schuylkill’s criminal court, see Article 28, Section 11, Pennsylvania Manual, ed. Alice Allen (Pennsylvania, 1947), Article XVIII, Future Amendments, Constitution of the Commonwealth of Pennsylvania, 55.
[73] See Shenandoah Herald, September 11, 1875: “When the new Constitution of the State came into effect [the criminal court for Schuylkill County] was annulled and the Hon. David B. Green was constituted Judge of Common Pleas in the county of Schuylkill to complete his unexpired term. The Hon. Cyrus L. Pershing was elected to the office of Principal Law Judge of the Schuylkill county Courts … in the fall of 1872, and the several Courts are now ably presided over, by the Hon. Cyrus L. Pershing, Thomas H. Walker and David B. Green.”
[74] Debates of the Convention to Amend the Constitution of Pennsylvania, vol. 2, (Harrisburg, 1873), 361-62.
[75] Ibid.
[76] Convicted in the Thomas, Major, and James conspiracy trials in 1876, Christopher Donnelly received two seven-year prison terms in the first two cases and a two-year term in the third.
[77] For Linden’s interference in Donnelly’s case, see Robert J. Linden to Pennsylvania Board of Pardons, 9 October 1882; 11 September 1884; 20 August 1885; 5 February1887, Christopher Donnelly Clemency File, Department of Justice Records, PHMC. The Board granted Donnelly’s request for commutation in 1887. “I do not see that there can be any objection to the pardon … at this time,” Linden said in February 1887. “I think … that the ends of Justice have been fully served.”
[78] Shenandoah Herald, March 21, 1877 (reprinting Wilkesbarre Leader).
[79] For this description of the hangings at Pottsville, see New York Times, June 22, 1877.
[80] Harrisburg Telegraph, January 18, 1876.
[81] Ibid., January 27, 1876.
[82] Ibid., March 17, 1876.
[83] Philadelphia Times, March 20, 1876.
[84] Ibid.
[85] See Flaherty, “The ‘Molly Kings.’”
[86] For preparation of prosecution testimony by Pinkerton operative Linden, see Report of Robert Linden, “Commonwealth v. Dennis Donnelly alias Bucky in the Murder of Thomas Sanger & We Uren Sept 1st 1875,” Reading Railroad Collection, Molly Maguire Papers, Hagley Museum and Library.

1 comment:

  1. Great article! Your entire blog is very informative and educational. My maternal 2nd great grandfather was John Joseph Donnelly. His brother was Dennis Donnelly, convicted and hanged for the Sanger/Uren shootings. John Donnelly lived on 2nd Street in Girardville for most of his life. I think it is very likely our families knew each other.

    Joe Rogers
    Mays Landing, NJ

    ReplyDelete