The Legacy of Sacco and Vanzetti 9781400868650

Table of contents :
Cover
Contents
Preface
Chief Periods of the Sacco-Vanzetti Case
Introduction
Part I. The Legacy to the Law: Doubt
Part II. The Legacy to the People: Conflict
Part III. The Legacy to Literature: Faith. The Beginnings of Historical Judgment
Acknowledgments
Chapter References
Bibliography
Index

Citation preview

The Legacy of Sacco and Vanzetti

The Legacy of Sacco and Vanzetti by Louis Joughin and Edmund M. Morgan

Introduction by ARTHUR M. SCHLESINGER

PRINCETON UNIVERSITY PRESS PRINCETON, NEW JERSEY

Copyright 1948 by G. Louis Joughin and Edmund M. Morgan Copyright (C) renewed 1976 by Louis Joughin and Roberta Morgan Wohlstetter All Rights Reserved Published by Princeton University Press, Princeton, New Jersey In the United Kingdom: Princeton University Press, Guildford, Surrey LCC 77-92102 ISBN 0-691-00588-5 (paperback edition) ISBN 0-691-04656-5 (hardcover edition) First PRINCETON PAPERBACK printing, 1978

Originally published 1948 by Harcourt, Brace and Company. Translated into Russian and published 1959 in the U.S.S.R. as Nasledie Sakko i Vanzetti. Reprinted 1964 by Quadrangle Books. Reprinted 1978 by Princeton University Press by arrangement with the authors.

PREFACE THIS BOOK is a study of the impact of the Sacco-Vanzetti case upon

American law, society, and literature. The inquiry began in a recognition of the fact that much verse, drama, and fiction has drawn its substance from the Saceo-Vanzetti case. It seemed probable that a criticism of this literature would throw light on the manner in which artistic writing emerges from periods of social stress. As the study progressed it soon became obvious that the disturb­ ance within the social framework was so complicated and far-reaching as to demand full-scale consideration. Finally it was apparent that the social history in its turn would have to be based upon an understanding of the legal issues. In short, it was evident that a proper treatment of the Sacco-Vanzetti material could be accomplished only by a thorough review of all the elements in the case. A fresh start was made. As the study neared completion a new significance became attached to both the substance and the method of the investigation. Important conclusions about the law, society, and literature had been arrived at separately; now, in addition, larger implications were suggested by a view of the whole situation. The total meaning was larger than the sum of the parts. This integrated consideration is presented, in the last chapter, as the beginnings of historical judgment. The law section has been written from the point of view of legal scholarship, and with full awareness of the special difficulties which arise from the study of an exclusively written record. Here is the statement of the position taken by the author of the law chapters: Chapters II through VI are by a lawyer, who spent some seven years in active trial practice and who has been teaching procedural subjects for a third of a century. It is written from the standpoint of a lawyer who accepts the rules of evidence as they existed at the time of the trials of these defendants. Chapters III and IV were first typed in 1929. At that time the writer had not read either Professor Frankfurter's book, The Case of Sacco and Vanzetti, or his article in the Atlantic Monthly of which the book is an expansion. Nor had he read the bill of exceptions or the record of either appeal to the Supreme Judicial Court of Massachusetts. He had seen that page of the bill of excep­ tions dealing with the offer of proof in connection with the attempted im­ peachment of the witness Goodridge on cross-examination, and had heard the arguments before the Supreme Judicial Court by Mr. Thompson for the defendants and Mr. Ranney for the Commonwealth on appeal from the ν

vi

PREFACE

order of the trial judge denying the so-called Medeiros motion for a new trial. His subsequent reading has not caused him to change any part of the original text, which stands substantially as first written. It has, however, been checked and a few minor inaccuracies have been discovered and corrected. Not until recently did the writer carefully read the record of Vanzetti's trial at Plymouth or make any attempt to summarize or comment upon it. Our system does not guarantee either the conviction of the guilty or the acquittal of the innocent. Certain safeguards are erected which make it much more difficult to convict the innocent than to acquit the guilty, but all that our system guarantees is a fair trial. It is a price which every member of a civilized community must pay for the erection and maintenance of machinery for administering justice, that he may become the victim of its imperfect func­ tioning. Consequently if these defendants got a fair trial, neither they nor their friends have any complaint against the Commonwealth of Massachusetts. Whether they were actually guilty no one but the perpetrators of the crime can know. Whether they got a fair trial or not can be only a matter of opinion; and as to that, no one can have an intelligent opinion who has not read the record of these cases. Part II of this volume presents the social history of the Sacco-Vanzetti case. The reader may be helped by knowing how these chapters were written. The procedure was to assemble all the pertinent data for each major chronological period, and then to allow the natural emphases of the material to determine the pattern for the chapter outline. This method resulted in differences in the organization of the several chapters and to minor deviations from a strictly logical development. On the other hand, the writer was freed from temptation to tailor or distort the historical substance with a view to maintaining a dominant hypothesis. The chapters on the literary material of the case, which comprise Part III, offer two kinds of criticism: (i) a discussion of the several writings as pertinent elements of evidence in the social history, and (2) a detailed evaluation of those documents which have significant artistic worth. The spirit which has dominated the writing of this book has been that of scientific inquiry. At times we have perhaps fallen short of our ideal sense of detachment, because we are dealing with human values in a situation of intense conflict. Nevertheless our aim has been to write objectively, with a dispassionate view of our material and a keenly critical attitude toward our procedure. This does not mean that we deny the necessity or value of the partisan spirit in a controversy like the Sacco-Vanzetti case; we merely say that it is not our intent— and perhaps not our aptitude—to engage in dispute in this study. Here are facts and judgments; other persons may use them as they see fit. On the other hand, we have not been blind to the part which

PREFACE

vii

personal feelings necessarily have in every judgment of human action— and all the more so in a bitterly fought issue of this kind. We have, we believe, been generally successful in gathering our material by accepted scientific methods. In arriving at opinions about that material, we have of course sensed a higher degree of involvement with antecedent biases derived from our cultural heritage; but at the very least we have tried to be reasonable in our judgments. Finally, in the expression of those judgments, we have spoken frankly; we have praised some men and condemned others. The standard by which we have judged conduct has been a simple one, essentially moral in nature. We believe that a man's social worth is directly related to his capacity for effective social life and to his realization of that capacity. If he is stupid it will suffice to enumerate him as one among other human animals. If he is of sound body and mind and has had some education he is under a moral obliga­ tion to live intelligently with his fellow creatures. To the degree that he uses his powers, he is worthy of praise; and to the degree that he fails, he should be condemned. Were Sacco and Vanzetti guilty of murder? Since our purpose is to lead the reader through the whole complicated history of the case, and since in doing so we have deliberately avoided easy simplifications and colorful summaries, it will be wise to dispose at once of this too simple question. We do not know—and we do not believe that human judg­ ment will ever be in a position to arrive at absolute certainty in this case. The social order angrily swept the men from the board without establishing a valid checkmate. Nor do we believe that the question should be pressed; insistence upon a final answer will only serve to obscure the chief significance of the case. In the Sacco-Vanzetti affair American justice was tragically inept. And since justice failed we con­ sider it inevitable that both literary tradition and historical judgment will continue to support the presumption that Sacco and Vanzetti were innocent of the crime for which they were executed. Louis JOUGHIN EDMUND M. MORGAN

CHIEF PERIODS OF THE SACCO-VANZETTI CASE First Period November 23, 1919, to May 5, 1920 (5 months, 13 days). Prepara­ tions for ,the crimes; the Bridgewater assault; the South Braintree holdup and murders; the arrest of Sacco and Vanzetti. Second Period May 6, 1920, to July 14, 1921 (1 year, 2 months, 8 days). Preliminary hearings; the indictment, trial, and conviction of Vanzetti for the Bridgewater assault; the indictment, trial, and conviction of Sacco and Vanzetti for the South Braintree holdup and murders. Third Period July 15, 1921, to October 1, 1924 (3 years, 2 months, 16 days). Motion for a new trial on the ground that the verdict was against the weight of the evidence, argued and denied; five supplementary mo­ tions, based chiefly upon new evidence, argued and denied. Fourth Period October 2, 1924, to April 8, 1927 (2 years, 6 months, 6 days). The preparation, argument, and denial of appeals based on the conviction and on three of the supplementary motions; the motion for a new trial based on a confession by Medeiros, argued before and denied by the trial judge and the supreme court; the significance of the rec­ ords of the Department of Justice. Fifth Period April 9, 1927, to August 23, 1927 (4 months, 14 days). Sentence im­ posed by the trial judge; the petition for executive clemency, the hearings and decision of the Advisory Committee, and the denial of clemency; the motion based on the trial judge's prejudice, argued before the trial judge and denied; unsuccessful attempt to bring the question of the trial judge's prejudice before the supreme court; un­ successful attempts to enter the federal courts; the executions.

CONTENTS Preface

ν

Chief Periods of the Sacco-Vanzetti Case

viii xi

Introduction PART I. THE LEGACY TO THE LAW: DOUBT

Chapter I. What Happened

1

3

Chapter II. The Bridgewater Assault, the South Braintree Murders, and the Plymouth Trial Chapter III. The Dedham Trial

a6 58

Chapter IV. Legal Controversy, July, 1921-August, 1927

114

Chapter V. An Unpublished Chapter in the Record

158

Chapter VI. The Legacy of Doubt

177

PART II. THE LEGACY TO THE PEOPLE: CONFLICT

Chapter VII. "Men of Norfolk"

I99

201

Chapter VIII. Two Nations

221

Chapter IX. Two Nations (Continued)

253

Chapter X. August, 1927

272

Chapter XI. The Governor and His Committee

298

Chapter XII. The Aftermath: 1927-1929

310

Chapter XIII. The Legacy of Conflict

347

PART III. THE LEGACY TO LITERATURE: FAITH. THE BEGINNINGS OF HISTORICAL JUDGMENT

373

Chapter XIV. The Literature of the Record and the Verse 375 Chapter XV. The Plays

393

Chapter XVI. The Novels

421 ix

X

CONTENTS

Chapter XVII. The Murderers

455

Chapter XVIII. The Mind and Thought of Vanzetti

479

Chapter XIX. The Legacy to Literature: Faith. The Begin­ nings of Historical Judgment

501

Acknowledgments

517

Chapter References

519

Bibliography

557

Index

581

INTRODUCTION THE POSTWAR twenties afford the time setting of the drama. A tri­

angular bit of Massachusetts soil, with its corners at Plymouth, Bridgewater, and Boston, provides the stage. Two obscure aliens are the central figures, though the whole cast includes many others of both high and low degree. The general public compose the audience and, in a sense, the jury. History stands silently by in the wings. This combination of circumstances created an atmosphere of popular tension, dread and crisis without parallel in Massachusetts annals since the exiling of Roger Williams and Anne Hutchinson and the witch persecutions of the seventeenth century. To duplicate its national repercussions one would have to go back to the trial of the Chicago anarchists for the Haymarket bombing in the i88o's, and for its world effects to the Dreyfus case in France near the turn of the century. How this situation arose the present volume graphically sets forth, as well as the reasons interest in the case has persisted to the present day, exciting a continuing stream of books and articles by both lawyers and laymen. Probably most Americans following the case at the time can re­ member where they were and just what they were doing when the word first reached them that Sacco and Vanzetti had lost their last chance of escaping death. So indelible was the impression that it is common testimony that only two other occurrences in recent years have made a comparable impact on the public mind: the assault on Pearl Harbor and the sudden death of President Franklin Roosevelt. Yet the latter two incidents directly involved the fortunes of the country as a whole, while the fate of the two lowly Italians might seem to have been unrelated to the national welfare, and, in any event, the questions at issue had divided the public into bitterly contending camps. This book, an arresting and cogent evaluation of the legal, social, and literary aspects of the case, will make clear to a generation fresh to the facts why the interest was so intense, as well as why historical scholars and textbook writers have deemed the affair sufficiently important to include it in general works on American history. Professor Morgan, one of America's foremost authorities on the law of evidence, carefully examines the legal record, including the repeated attempts through six years to secure a retrial or executive clemency. With all the relevant matter presented to the reader in language which

xii

INTRODUCTION

laymen can easily grasp, it is difficult to resist Professor Morgan's con­ clusion that Sacco and Vanzetti were "the victims of a tragic mis­ carriage of justice." The action of the Massachusetts legislature in 1939 in reforming the state's appellate procedure in such a way as would have enabled the two men to get their case reheard in the light of new evidence, constitutes at least an implied admission at an official level that they did not receive full justice. Professor Joughin, a student of literature and its social implications, then shows how society—in Massachusetts, in the country at large, in other lands—rendered its own verdict on the case. This rich and reveal­ ing record he finds in documentary sources, in newspapers, pamphlets, and magazines, in poems, plays, and novels. He shows, moreover, how "Throughout the world men and groups of men were forced to define their position on a large variety of ethical, economic, and political problems." Finally, he assesses Sacco and Vanzetti as human beings and as thinkers. Twenty years after the electrocution, in 1947, a group of distinguished citizens, including Mrs. Franklin D. Roosevelt, Albert Einstein, Herbert H. Lehman, Dean Wesley A. Sturges of the Yale Law School, and Provost Paul H. Buck of Harvard University, offered to the Commonwealth of Massachusetts a bas-relief plaque of the two Italians—the work of Gutzon Borglum—for erection on Boston Com­ mon, but the Governor to whom fell the decision considered that public opinion in the state was still too divided to justify acceptance. Meanwhile, the statue of Anne Hutchinson in the State House grounds seems an assurance that some later Governor will decide differently. This book is based upon a recognition, myth* to the contrary not­ withstanding, that judicial processes do not take place in a social void; that judges are men, not gods; that strict observance of legal forms does not necessarily assure the accused of a fair trial; and that judges and court systems are themselves judged by the society they are designed to serve. To treat the Sacco-Vanzetti affair from this all-encompassing point of view, two scholars, representing branches of learning com­ monly regarded as remote from each other, have joined forces in a collaboration of a most unusual kind. Specialization, the revered in­ strument of modern scholarship, entails the ever-present danger of concealing the whole truth by disclosing only a part. Even specialists working together may not do better than a patchwork job. Fruitful collaboration involves a genuine meeting of minds, a constant aware­ ness of the interrelationship of each part to the whole. That Professors Morgan and Joughin have achieved notably in this respect no reader can have any doubt. Quite apart from the conclusions they reach, their method has significance. The success they have attained should light the way for all future ventures in co-operative scholarship. ARTHUR M. SCHLESINGER

PART I THE LEGACY TO THE LAW: DOUBT

Chapter I

WHAT HAPPENED THE CHIEF events of the Sacco-Vanzetti case—from their simple beginning with the theft of a car, to the grim day of execution —occurred within a triangular area which has Boston at the northern point, Bridgewater to the south, and Plymouth to the southeast. Five places are important: an unsuccessful holdup was attempted at Bridgewater, and Vanzetti was convicted of this crime at Plymouth; a payroll was seized and two men were killed in South Braintree, and both Sacco and Vanzetti were found guilty of this murder in a Dedham courtroom; subsequent appeals and hearings were held in Boston. Bridgewater and South Braintree suffered the acts of violence; Plymouth and Dedham assessed the penalties. Boston, capital city of Massachusetts and of New Eng­ land, witnessed the appeals and arguments before the Supreme Judicial Court, the Governor's Advisory Committee, and the Gov­ ernor. Although the interest of investigators took them to Provi­ dence, New York, Atlanta, and Leavenworth, the Sacco-Vanzetti case was essentially the problem and the responsibility of eastern Massachusetts. The commonplace stealing of an automobile on November 23, 1919, is the first happening of undisputed relevance to the case. Seven years and nine months later, on August 23, 1927, Sacco and Vanzetti were electrocuted. This long period of time saw the growth of a long and very complicated legal record; the transcript of the Plymouth and Dedham trials, the numerous briefs on ap­ peal, and other official documents total more than six thousand pages.1 Fortunately, it is possible to divide this mass of material into five major sections, each of which has unity in both chronol­ ogy and substance. These are: First Period. November 23, 1919, to May 5, 1920 (5 months, 13 days). Preparations for the crimes; the Bridgewater assault; the South Brain­ tree holdup and murders; the arrest of Sacco and Vanzetti. 1 Reference notes will be found in the CHAPTER REFERENCES section, pages 5^-556 of this volume. For a description of the transcript of the record see page 5'9-

4

THE LEGACY OF SACCO AND VANZETTI

Second Period. May 6, 1920, to July 14, 1921 (1 year, 2 months, 8 days). Preliminary hearings; the indictment, trial, and conviction of Vanzetti for the Bridge-water assault; the indictment, trial, and con­ viction of Sacco and Vanzetti for the South Braintree holdup and murders. Third Period. July 15, 1921, to October 1, 1924 (3 years, 2 months, 16 days). Motion for a new trial on the ground that the verdict was against the weight of the evidence, argued and denied; five supple­ mentary motions, based chiefly upon new evidence, argued and de­ nied. Fourth Period. October 2, 1924, to April 8, 1927 (2 years, 6 months, 6 days). The preparation, argument, and denial of appeals based on the conviction and on three of the supplementary motions; the motion for a new trial based on a confession by Medeiros, argued before and denied by the trial judge and the supreme court; the significance of the records of the Department of Justice. Fifth Period. April 9, 1927, to August 23, 1927 (4 months, 14 days). Sentence imposed by the trial judge; the petition for executive clem­ ency, the hearings and decision of the Advisory Committee, and the denial of clemency; the motion based on the trial judge's prejudice, argued before the trial judge and denied; unsuccessful attempt to bring the question of the trial judge's prejudice before the supreme court; unsuccessful attempts to enter the federal courts; the executions. The general question arises whether it was necessary that Sacco and Vanzetti spend seven years in jail or prison awaiting the out­ come of their bitter struggle. During those years and later, the charge of long-drawn-out and sadistic prosecution was often hurled at the Commonwealth. This is an accusation which simply cannot stand. The docket of the Norfolk Superior Court, in which Saceo and Vanzetti were tried, tells an entirely different story. There was perhaps an unnecessary delay in bringing the men to trial, but the more than three hundred entries indicate clearly that responsibility for the length of the controversy rests chiefly upon the defense attorneys; they chose to fight vigorously, and to present every discoverable additional fact and argument; if they had not done so, the end would have come much sooner. They saw their duty, and it is to their credit that they did not grow weary as the case grew infinitely complex. But this is a very different mat­ ter from charging the prosecution or the court with deliberate cruelty. Sacco and Vanzetti may have suffered under a cumber-

WHAT HAPPENED

5

some or inadequate code, but they themselves prolonged their day in court. They chose to try to live. It will now be helpful to examine the events which fall within each of the five main periods. An acquaintance with the story of the case will make it easier to grasp the nature of the legal con­ troversy. FIRST PERIOD. NOVEMBER 23, 1 g 1g, TO MAY 5, I92O

Preparations for the Crimes. A Buick car belonging to Francis J. Murphy was stolen on November 23, 1919. This automobile may or may not have been the one used by a group of bandits who failed in an attempted holdup at Bridgewater one month later; its identification is much less certain in the early stages of the investigation than in the courtroom, and even at the trial there is considerable doubt. On April 17, 1920, two days after the South Braintree murders, it is found abandoned some fifteen miles from the scene of the crime; the car was probably the one actually used by the bandits at the scene of this crime, and it was certainly driven by them at some stage in their flight. The license plates used at the Bridgewater holdup were stolen from a garage on December 22, 1919; those used in South Braintree were taken from a private car between January 6 and January 9, 1920; neither set appears ever to have been recovered. The stealing of the Murphy car and the two sets of license plates furnishes the only indisputable evidence of the preparations made by the bandits who operated in Bridgewater and South Braintree. Whether these thefts were committed by the same per­ sons, and the degree to which such preparations suggest the work of professional criminals, are questions which later assume great importance. The Bridgewater Assault. The attempted payroll robbery in Bridgewater took place on December 24, 1919, at about seventhirty in the morning. Two men, one carrying a shotgun and the other a revolver, attacked a truck in which was the payroll of the L. Q. White Shoe Company. The guard on the truck shot back at the bandits. Within a few seconds the episode came to an end; the truck ran into a telegraph pole; the attackers entered a large pas­ senger car which was probably in charge of two confederates, and at once left the scene. No one was struck by shot or bullets.

6

THE LEGACY OF SACCO AND VANZETTI

Officials of the shoe company immediately engaged the Pinkerton Detective Agency, and the agency operatives made reports from December 24, 1919, through January 8, 1920. These reports were not available to the defense until the spring of 1927; they do not form part of any court record, but they were placed before the Governor and the Advisory Committee.2 The South Braintree Holdup and Murders. The major crime in the Sacco-Vanzetti case was committed on the afternoon of April 15, 1920, in the industrial town of South Braintree, twelve miles south of Boston. The payroll envelopes for the Slater and Morrill shoe factories had been made up in the western or "Num­ ber 1" factory building; nearly $16,000 was to be taken to the eastern or "Number 2" building, some two hundred yards off. The envelopes were placed in two large boxes and entrusted to Frederick A. Parmenter, a paymaster, who was accompanied by Alessandro Berardelli, a guard. As they neared their destination, Parmenter and Berardelli were shot at by two men who had been leaning against a fence. Both victims died. The exact sequence of events, the point from which the bullets were fired, and the possible participation of a third bandit in the shooting, are the subject of confusing and partially contradictory testimony. Immediately after the shooting a large dark-colored car moved up the street from east to west; the two murderers picked up the payroll boxes and with a third man got into the automobile. In all probability there were now five persons in the bandit car. As it left the scene of the shooting and passed through neighboring areas the occupants of the car were observed by several persons who later gave identification testimony in court. At one place a railroad-crossing tender was cursed at by a bandit who sat on the front seat. Shortly afterward the car was lost sight of. Most of the circumstances of the fatal robbery in South Braintree were used by the state to form a basis in evidence for the case brought against Sacco and Vanzetti: there was identification testi­ mony, a detailed consideration of bullets and shells and guns, a disputed cap, and so forth. Two very conspicuous elements, how­ ever, formed no part of the prosecution's case. The Common­ wealth never in any way connected the stolen money or any other large sum with either defendant. Furthermore, no information was presented to the jury about the other three bandits. In the record these two circumstances play no important part, but they

WHAT HAPPENED

*J

later become important to the logic of the essential issue, guilty or not guilty. The Arrests. Sacco and Vanzetti were seized by police officers on May 5, 1920, twenty days after the murders at South Braintree and more than four months after the Bridgewater assault. The circumstances leading up to and including the actual arrest con­ stitute a controversial phase of the case, the subject of contradic­ tory testimony and conflicting interpretations. The prosecution offered the relatively simple picture of police investigators who had no certain knowledge of the identity of the criminals they sought, but who knew that suspicion might reasonably be directed toward any Italians of the southern metropolitan area who might attempt to get the use of a car, especially if their conduct was in any way surreptitious. Sacco and Vanzetti met this condition on May 5 when they accompanied a friend seeking his car. Their con­ duct was reported by the wife of the repair man who held this car. Sacco and Vanzetti were arrested immediately thereafter. And the general suspicion of the police must have been tre­ mendously strengthened when it was found that both men car­ ried guns. Vanzetti had a fully loaded five-chamber revolver and also had either three or four shotgun shells. Sacco bore a loaded automatic and twenty-three additional cartridges. In other words, "suspicious characters" turned out to be heavily armed. The explanatory story which the defense developed had a two­ fold purpose; it was intended to account for the actions of Sacco and Vanzetti and it was also directed toward discrediting the moti­ vation and procedure of the police. The defendants in their direct examination at their joint trial in Dedham gave as their reason for trying to get hold of an auto­ mobile on May 5 the fact that they were nervous about the posibility of arrest as radicals and were seeking a car in order to dispose of incriminating radical literature.3 Vanzetti supported this contention by showing that he had been in New York from April 26 through April 29 finding out about the mysterious deten­ tion of a fellow radical, one Salsedo. And on May 4 the ominous news had reached Boston that Salsedo was dead from an unex­ plained fourteen-story fall. Sacco said that he had owned his gun for some years,4 and ex­ cused his carrying of it on May 5 by stating that he intended to shoot off all the cartridges in a deserted spot before his imminent

8

THE LEGACY OF SACCO AND VANZETTI

departure for Italy. The need of getting the car interrupted this plan, and consequently he was found with the weapon and car­ tridges on his person. Vanzetti claimed that his revolver was for protection against robbery; sometimes his business as a fish-ped­ dler led him to carry as much as a hundred dollars for the pur­ chase of fish from the wholesalers. The shotgun shells found on Vanzetti were Sacco's and the avowed intent was to sell them for a small sum which could be given to a radical defense fund. Subsequent to the murder trial the defense advanced the gen­ eral argument that many police officers and prosecuting attorneys were in the early months of 1920 eager to assist the federal authori­ ties in rounding up radicals. Sacco and Vanzetti, as professed anarchists, were good prospects for deportation. But almost im­ mediately after their arrest it became apparent that the two Ital­ ians might, by a skillful use of the evidence and an effective appeal to current prejudices, be convicted on a capital charge.5 In summary, then, the defense held at the trial that Sacco and Vanzetti were nervously seeking a car to dispose of radical litera­ ture, and that they were carrying guns for innocent reasons; after­ ward it was maintained that the police and prosecution had belatedly and accidentally unearthed a couple of appropriate vic­ tims. SECOND PERIOD. MAY 6, 1980, TO JULY 14, ig21

Preliminary Hearings. Immediately upon their arrest Sacco and Vanzetti were questioned by Michael E. Stewart, Chief of Police of Bridgewater. They were asked about their movements on that day, whether they were anarchists or communists, and whether they believed in the overthrow of the United States government by force. On the following day, May 6, District Attorney Frederick G. Katzmann questioned Sacco about his knowledge of Berardelli, his gun, his experience in "car riding," his awareness of the South Braintree crime, his doings on April 15, and his movements on May 5. Katzmann asked Vanzetti about the events of May 5, his gun, and his activities in mid-April. These interrogations were,' in large part, introduced as testi­ mony in the trials. It was made clear by cross-examination, and often by admission of the defendants, that they had given inexact, incorrect, and deliberately false answers to Stewart and Katzmann. They explained their lies by saying that they were afraid of expos-

WHAT HAPPENED

9

ing their friends and themselves to persecution as radicals; the prosecution attacked this excuse as inadequate to explain all of the lies; the further defense was offered that those lies which did not relate to the issue of radicalism were in fact innocent errors, and that those errors arose through indifference to the events of April 15, the day of the murders. The answers and manner of Sacco and Vanzetti at these preliminary questionings furnish im­ portant evidence as to their consciousness of guilt. Were they afraid, and if so of what? The time had now come for the District Attorney to decide upon the order of the two prosecutions which he was to undertake, the indictments he would request, and the dates of the trial pro­ ceedings. Katzmann elected to try Vanzetti first, for the Bridgewater hold­ up, and then to try Sacco for the South Braintree murders. He explained his choice, before the Advisory Committee, in 1927, by pointing out that the Plymouth Court was in session and available for the trial of the lesser crime, while the murder indictment could not be returned to the Norfolk Court before September. He also insisted that the evidence against Vanzetti as a party to the South Braintree crime was not sufficient to warrant charging him with murder until after his trial in Plymouth. Finally, he said that the long delay in getting to the murder trial was "because the defense insisted upon postponement after postponement after postpone­ ment." β The defense, in 1927, took a different view. It charged the prose­ cution with having deliberately arranged matters so that Vanzetti would come to trial for his life with a previous conviction hang­ ing over his head; and Sacco, who had no police record, would find himself co-defendant with a convicted felon. It was pointed out that the Commonwealth had available from the beginning witnesses who could connect Vanzetti with the South Braintree affair.7 The Indictment, Trial, and Conviction of Vanzetti for the Bridgewater Assault. Two indictments, assault with intent to rob and assault with intent to murder, were returned against Vanzetti by the grand jury on June 11, 1920. His trial opened in the Supe­ rior Court at Plymouth on June 22 before Judge Webster Thayer. A verdict of guilty was brought in on July 1, and on August 16 Vanzetti was sentenced to from twelve to fifteen years.

10

THE LEGACY OF SACCO AND VANZETTI

Some steps were taken toward an appeal but this action became submerged in the larger issue of the murder charge. The case against Vanzetti was built on three kinds of evidence: he was linked to the stolen Murphy car and that automobile was placed at the scene of the crime, he was portrayed as having acted in a significantly guilty manner at the time of his arrest, and he was identified by witnesses as the bandit who carried the shotgun. The connection with the car was, as a matter of fact, very tenuous. The identification testimony was by no means overwhelming, and some of it "bordered on the frivolous." 8 The consciousness-ofguilt charge was a more serious matter but the existing record does not suggest that it was made the chief argument of the prose­ cution. Weak as the prosecution may have been, it succeeded in getting a conviction; it was opposed by an unconvincing defense. Vanzetti's lawyers offered an alibi intended to show that he was going about his usual routine of peddling fish. All sixteen of the wit­ nesses called were Italians, and they spoke through an interpreter to a Yankee jury. Some were confused, others were abnormally exact and helpful. Counsel made no attempt to open up other reasonably useful avenues of defense. Vanzetti did not testify. In 1928, after the executions, a confession to the crime of con­ troversial value was obtained from a professional criminal.9 The Indictment, Trial, and, Conviction of Sacco and Vanzetti for the South Braintree Holdup and Murders. Although Sacco and Vanzetti had been arrested on May 5, 1920, it was not until September that indictments were returned. The trial began in Norfolk County Superior Court, at Dedham, on May 31, 1921. Judge Webster Thayer, who had presided at Vanzetti's Plymouth trial, occupied the bench. The facts relating to the selection of the jury are of considerable interest. A first panel of 500 talesmen was called; it yielded 7 jurors. The Court then directed the sheriff to bring in 200 more persons from among the bystanders or from the county at large. Of the 175 actually rounded up, 153 were examined before the 5 remaining places were filled. The manner of selecting the tales­ men for the emergency panel was objected to by defense counsel; this issue, however, and the whole question of the constitution of the jury, is more of a social than a legal problem.10 The first body of testimony placed before the jury by the Dis-

WHAT HAPPENED

trict Attorney identified Sacco and Vanzetti as two of the supposed five members of the gang which staged the holdup. Sacco, in addi­ tion, was designated as one of the men who did the actual shoot­ ing. This evidence was attacked by the defense both by crossexamination as to its substance and by testimony showing that some of the state's witnesses had at various times made fatally con­ tradictory statements. Secondly, the prosecution claimed that the bullet which killed Berardelli, and a shell (the "Fraher shell") which was found at the scene of the murder, bore markings which established the fact that they had been discharged in the gun found upon Sacco at the time of his arrest. Most of the testimony in support of this view was by experts who compared the "fatal bullet" and the "Fraher shell" with test bullets and shells. The defense countered with tests and opposing judgments from its own experts. The third line of attack by the Commonwealth developed in great detail the consciousness-of-guilt issue, which had been less thoroughly explored at Vanzetti's Plymouth trial. On this point the defense replied by showing that the "guilty acts" were either not relevant to the crime in question, or were in fact innocent. Sacco was also linked to the place of murder by a cap, and Vanzetti was charged with carrying at the time of his arrest the re­ volver which had presumably been taken from the murdered Berardelli. These were important corroborative elements but neither of them would probably have led to conviction on its individual merit. Furthermore, the defense had some success in questioning the validity and weight of these two lines of evidence. Sacco denied the ownership of the cap and Vanzetti established a different line of ownership for his revolver. Counsel for the accused men, in addition to attacking the con­ tentions of the Commonwealth, built up for them elaborate ali­ bis: Sacco was shown to have been in Boston and Vanzetti in Plymouth at the time of the holdup. The state showed that these alibis were weak and also implied that much of the defense testi­ mony on this issue was factitious. A verdict of guilty was returned on July 14. THIRD PERIOD. JULY 15, I92X, TO OCTOBER 1, I924

In this period of more than three years, counsel for the con­ victed men placed before Judge Thayer numerous requests for a new trial. The motions which embodied these pleas reviewed the

12

THE LEGACY OF SACCO AND VANZETTI

Dedham trial and presented a large body of new evidence and argument. A brief statement of the content of these motions is essential to the story of the case. The Motions for a New Trial on the Ground That the Verdict Was against the Weight of Evidence. Immediately after the ver­ dicts, defense counsel undertook the conventional attack upon the evidence; the motions and the oral arguments have not been printed but their tenor can be gathered from the nature of Judge Thayer's adverse decision of December 24, 1921. Much emphasis is placed in this decision upon the unequaled opportunity of the jury to weigh the evidence, and the consequent strong disinclina­ tion which a judge should feel to interfere with the verdict. These general principles are applied to a discussion of the identification testimony, the fatal bullet, the bandit car and its connection with the defendants, Vanzetti's revolver, the cap said to belong to Sacco, the issue of consciousness of guilt, and the alibis. Consciousness of guilt is discussed much more thoroughly than the other ele­ ments. No important new line of controversy is suggested. Howver, Judge Thayer's concluding remarks suggest an emotional bias which is later to become a legal issue.11 Under the law, no appeal was possible from the trial judge's decision on these motions. First Supplementary Motion; the Ripley-Daly Motion. Defense counsel got from the foreman of the jury, Ripley, an affidavit to the effect that he had with him in the jury room three .38 caliber revolver cartridges generally similar to those in Vanzetti's re­ volver. He showed these cartridges to other jurors. None of this was denied by the prosecution; Ripley, himself, had died soon after making his statement. There was debatable evidence as to whether an attempt had been made to force these cartridges into Vanzetti's revolver, and the significance of certain ink markings was also argued. In substance, the defense claimed the presence of an improper exhibit in the jury room. On the basis of affidavits by the eleven surviving jurors, Judge Thayer held that: . . . the mere production of the Ripley cartridges and the talk or dis­ cussion about them did not create such disturbing or prejudicial influ­ ence that might in any way affect the verdict or operate in any way whatsoever to the prejudice of the defendants, or either of them.18

WHAT HAPPENED

1¾

In 1923, on the day that oral argument began on the supple­ mentary motions, there was filed an affidavit by an acquaintance of Ripley's named Daly. At the time that the future foreman was on his way to answer the jury call from Dedham, Daly expressed the opinion that Sacco and Vanzetti were not guilty. Ripley, it was claimed, replied, "Damn them, they ought to hang them any­ way." 13 No comment was made by Judge Thayer on the Daly supple­ ment to the Ripley motion. An appeal was taken on the first supplementary motion. Second Supplementary Motion; the Gould-Pelser Motion.

Within a few seconds after the murders at South Braintree, as the escaping car moved up the street, the bandit in the right front seat fired a shot at a bystander named Gould. Only a few feet sepa­ rated Gould from his would-be murderer, and the bullet actually passed through his overcoat. This witness gave his name and address to a policeman, and the information was turned over to the chief of the South Braintree police; Gould was not called as a witness by the prosecution and the defense was unaware of his importance. Now, a year after the trial, Gould made affidavit of his experience. The judge denied the necessity of a new trial on the ground that Gould's testimony would have been no more than cumula­ tive evidence. Interestingly enough, one page of the decision is devoted to Gould; thirteen additional pages review other evi­ dence. Apart from the substance of this motion, the denial raised two important issues which were later argued on appeal. Why, in the first place, did Thayer say that Gould "must have carried a cor­ rect mental photograph in his mind of Sacco for practically eight­ een months, when he only had a glance in which to take this photograph on the day of the murder"?14 This is wrong. What Gould said was that when he looked at Sacco he knew that the defendant was not the man who had shot at him. And secondly, was the eyewitness whose sensitivity may well have been greater than that of all others, because he had barely escaped with his own life, properly characterized as "one more eye witness to the pass­ ing of the bandit automobile"?15 The second part of the second supplementary motion presented the affidavit of a witness named Pelser who at the trial identified

14

THE LEGACY OF SACCO AND VANZETTI

Sacco as the "dead image" of one of the bandits. Fred H. Moore, of the defense counsel, obtained a retraction, and an implication of forced testimony; Katzmann got a retraction of the retraction and a countercharge of intimidation. The motion was denied, and appeal was taken only on the Gould affidavit. Third Supplementary Motion; the Goodridge Motion. Through voluminous affidavits and records Moore impeached the character of one Goodridge, a witness who identified Sacco as one of the bandits. Goodridge, it appeared, had a multiple criminal record and a worthless reputation. Defense counsel contended that Goodridge was eager to please the prosecuting attorney in order to prevent further prosecution of pending charges against him, to which he had already pleaded guilty. If this situation had been brought out at the trial, the effect might have been not only to destroy him as a witness but also to discredit the prosecution. On the other hand it was clear that Moore himself had handled Goodridge very roughly. The numerous charges and counter­ charges reflect a bitter and unsavory struggle. Thayer, in denying the motion, exonerated Katzmann and referred to Moore's "bold and cruel attempt to sandbag Goodridge by threatening actual arrest." 16 No appeal was taken from the denial of the motion. Fourth Supplementary Motion; the Andrews Motion. Another of the identification witnesses against Sacco was Mrs. Lola R. Andrews, and from her Moore obtained affidavits indicating that the prosecution had confused her, primed her testimony, and in some measure intimidated her. Almost at once, she took back these statements and charged Moore with high-pressure methods. In denying the motion, Thayer characterized the situation as one of alleged professional misconduct by counsel on both sides: he found Katzmann guiltless and held that Moore's own admissions proved reprehensible behavior. Consequently, he held the affida­ vits by Mrs. Andrews worthy of no consideration. No appeal was taken on this motion. Fifth Supplementary Motion; the Hamilton-Proctor Motion. The most complicated part of the Sacco-Vanzetti case is that which embraces the expert testimony on firearms, cartridges, shells, and bullets. At the time of the trial four experts testified: Proctor and

WHAT HAPPENED

15

Van Amburgh for the Commonwealth, and Burns and Fitzgerald for the defense. As one reads the record of the trial, the question naturally arises: How well did these men assist the jury to find the facts? It must, of course, be admitted that the jurors were able to use their hands and eyes, and that these aids are no longer possible to the reader of the printed page. Nevertheless, the conclusion is irre­ sistible that the jury must have had only a vague understanding of the technical problems by which they were confronted. The evidence and the lines of reasoning offered by the experts on both sides were carelessly assembled, incompletely and confusedly pre­ sented, and perhaps—most important of all—beyond the compre­ hension or judgment of the ordinary intelligent layman. Because of the obvious weakness of the trial record on the bal­ listics aspect of the case, the defense now offered in the Hamilton part of the fifth supplementary motion a further expert study and a review in minute detail of the whole accumulated technical evi­ dence. Hamilton and Gill presented analyses and pictorial mate­ rial for the defense; Van Amburgh and Robinson replied for the prosecution. The affidavits, supporting arguments, and decision on the fifth supplementary motion cover 120 pages of the transcript and there are in addition 26 exceptionally fine photographic plates. Unfortunately it is doubtful whether the dispassionate layman, after reading and studying this lengthy new analysis, can feel that he is in a better position to judge of the guilt of the defendants. It is true that some uncertainties are cleared up. But two major difficulties remain. Equally qualified experts are in disagreement. And the complexity of the problem is perhaps insuperable. The last of the supplementary motions for a new trial on the ground of newly discovered evidence was the Proctor section of the fifth supplementary motion. It is really an entirely separate motion and was filed at the very time that the whole group was being argued. In effect it is an act of self-impeachment by one of the experts who testified for the prosecution at the Dedham trial. On October 23 Captain Proctor made an affidavit indicating that he had repeatedly told Katzmann that he would have to answer in the negative if he were asked whether he had found positive evi­ dence that the fatal bullet had been fired from Sacco's pistol. The statement which Proctor made on the witness stand was: "My opinion is that it is consistent with being fired by that pistol." 17

l6

THE LEGACY OF SACCO AND VANZETTI

In answering the implication of the Proctor affidavit, Katzmann confined himself to denying that the prosecution expert had "re­ peatedly" talked the matter over with him or that Proctor had "repeatedly" said that he would have to give a negative answer. Judge Thayer did not examine Proctor before the latter's death, which took place shortly after the date of his affidavit. In his ad­ verse ruling on the motion Thayer held that Proctor meant ex­ actly what he had said, and that the witness must have been understood, completely and accurately by the jury. The judge ab­ solved Katzmann of any planned ambiguity which might have been harmful to the interest of defendants. Finally he pointed out that defense counsel did not even bother to cross-examine on this statement. An appeal was taken on both the Hamilton and Proctor sec­ tions of the fifth supplementary motion. The titanic efforts made by counsel for Sacco and Vanzetti in the preparation of the motions for a new trial in this three-year period, and the heavy burdens which fell upon the Common­ wealth and the judge in meeting and deciding these pleas, had by the end of 1924 resulted in a controversy which, in its legal aspect alone, was of national significance. FOURTH PERIOD. OCTOBER 2, I924, TO APRIL 8, 1927

Almost immediately after the denial of the motions for a new trial, William G. Thompson became chief counsel for both Sacco and Vanzetti; Moore and his colleagues, the McAnarney brothers, withdrew. The Preparation, Argument, and Denial of the Appeal Based upon the Conviction and upon Three of the Supplementary Mo­ tions. The first document in the appeal to the Supreme Judicial Court (the highest court in the Commonwealth), was filed on September 13, 1924; numerous other records and briefs were pre­ sented at later dates, and the whole body of material was finally complete on November 10, 1925. The length of this period of time arose from the complexity of the case and the care with which the appellate record was being assembled; there is no evi­ dence of willful delay on either side. Oral arguments were made on January 11, 12, and 13, 1926. On May 12, 1926, the Supreme Judicial Court held: "Exceptions overruled. Verdict to stand."

WHAT HAPPENED

17

Under the Massachusetts judicial system the high court of ap­ peal was empowered to review the "law" but not the "facts." However, "law" and "facts" can be variously defined; and there is a real problem raised by their relationship to each other.18 The court could review the law. In other words, the documents in the case and the procedure in the lower court could be reviewed in order to determine whether they conformed to the legal pat­ tern for a fair trial as established by the federal and state constitu­ tions and the state laws. There were in the Sacco-Vanzetti case a number of irregularities but the Supreme Judicial Court held that they had not been prejudicial to the defendants. The court could not examine the facts. That is, in Massachu­ setts, the court of appeal could not try the case again by weighing the evidence with a view to determining whether Sacco and Vanzetti were guilty. But the law and the facts are not always completely separable; the strenuous debate of the courtroom often creates a situation in which philosophic distinctions are broken down by the crude force of human feeling. It is then that the trial judge performs one of his most important functions; he sits as a judicial umpire, possessed of wide discretionary powers which carry with them great responsibility. Discretion in this connection means sound judicial discretion, enlight­ ened by intelligence and learning, controlled by sound principles of law, of firm courage combined with the calmness of a cool mind, free from partiality, not swayed by sympathy nor warped by prejudice nor moved by any kind of influence save alone the overwhelming passion to do that which is just. It may be assumed that conduct manifesting abuse of judicial discretion will be reviewed and some relief afforded.19 And it is directly on the issue of the trial judge's discretion that the defense based its appeal in this case; Judge Thayer was charged with having on many occasions put his discretionary power to incorrect or prejudicial use. The high court read the record and held otherwise. The great importance of this question rests upon the fact that the defense later claimed that the trial judge's abuse of discretion arose from his violent personal hostility to the de­ fendants. The defendants appealed from the denial of a new trial on the record of the original proceedings (motions on the ground that the verdict was against the weight of evidence), and on the denial of

l8

THE LEGACY OF SACCO AND VANZETTI

the first, second (in part), and fifth supplementary motions (Ripley-Daly, Gould, and Hamilton-Proctor motions). In all, twentyeight major points were raised. Assistant District Attorney Dudley P. Ranney replied for the Commonwealth. The opinion of the court was written by Henry H. Braley, Senior Associate Justice; it was concurred in by Chief Justice Rugg and by Associate Jus­ tices Carroll, Wait, and Sanderson. There was no dissent. Justice Braley's opinion rejects the contentions of the defend­ ants under thirty-three headings. Many points are adversely de­ cided upon the principal rule that the matter lay within the dis­ cretionary power of the trial judge, and many more bring in the same rule as a partial or implied consideration. Of course, since the appeal in its entirety could be looked upon as a condemnation of Judge Thayer's rulings, it was inevitable that the opinion of the Supreme Judicial Court should take the form of a decision on his discretion. The Motion for a New Trial Based on a Confession by Medeiros, Argued before and Denied by the Trial Judge and the Su­ preme Court. On November 10, 1925, counsel for the defense had completed their record for the appeal; presumably their last major effort in the courts would be the argument of the briefs accom­ panying this record. And then, on November 18, a whole new field of evidence and a completely different line of defense was opened up. This came about through the delivery to Sacco of a note from a fellow inmate of the Dedham jail. It read: "I hear by confess to being in the south Braintree shoe company crime and Sacco and Vanzetti was not in said crime. [Signed] Celestino F. Madeiros." This extraordinary development involved the defense, the Commonwealth, the trial judge, and the Supreme Judicial Court in a continuance of the controversy for the next seventeen months. Furthermore, the Medeiros phase of the proceedings with ironic consistency aggravated the existing conflicts in law and personal­ ity; by April of 1927 the Sacco-Vanzetti case had come to be the most violently disputed issue of its day. Celestino Medeiros,* at the time he sent his note to Sacco, stood convicted of murder in the first degree; he had, however, appealed and there was a chance that he might not be executed. He con­ fessed, he said, because he was moved by sympathy for Mrs. Sacco * Medeiros appears to be the preferred spelling. The man himself sometimes wrote Madeiros; both spellings appear in the court records and in the Transcripts

WHAT HAPPENED

19

and her children. This statement, coming from a man of the worst possible sort of reputation and criminal record, was naturally suspect, even though it virtually assured his eventual execution. Fortunately, it is not necessary to consider the motive back of this confession; a very complete investigation was made of all the relevant facts and the findings were presented to the court in the form of exhibits and affidavits. Unfortunately, evidence gathered in this way did not have the full force of testimony given before a jury at a trial; nor was it subject to development and criticism through examination and cross-examination. Medeiros claimed 20 that he was one of a group of six profes­ sional criminals who committed the South Braintree crime. Sev­ eral individuals, all of bad reputation, stated that he had on several occasions between 1924 and 1926 tied himself to this par­ ticular criminal act. It is true that he could not recall many details of the events of the fatal day, supposedly because he was fright­ ened, half-drunk, and prone to epilepsy. On the other hand, he made no substantial errors as far as his recollection did go. The total impression which can be got from Medeiros' own statements is one of a possible but by no means proved participation. Therefore it became necessary for Mr. Thompson and his new associate, Herbert B. Ehrmann, to investigate the potential guilt of the whole gang of bandits of which Medeiros was in all likeli­ hood the least important member. A difficulty arose through Medeiros' persistent silence on the identity of his alleged confed­ erates; another hindrance lay in the refusal of the Commonwealth to participate in the investigation. Nevertheless a great deal was accomplished.21 The Morelli gang, of Providence, Rhode Island, was apparently the group involved. A number of them were free on April 15, 1920; they were in need of money to finance a pending defense on another serious charge; several of them fitted the descriptions given by identification witnesses; and one in particular bore a strong resemblance to Sacco; the gang was thoroughly familiar with the Slater and Morrill, and Rice and Hutchins shoe factories, having stolen shipments from these manufacturers. The impor­ tance of this mass of additional information is, as a matter of fact, much greater than the mere confession of Medeiros. It permits a reasonable hypothesis along the following lines: Mike Morelli, a less important member of the gang, was in charge of the carexchange system and did not actually go into South Braintree;

20

THE LEGACY OF SACCO AND VANZETTI

"Steve the Pole" Benkoski was the driver of the bandit car; Medeiros was the rear-seat gunner to hold off the crowd; Frank Morelli stood on the north side of the street to cover his confederates; Joe Morelli, leader of the gang, put one shot into Berardelli from his .32 caliber Colt; Tony Mancini put two shots from his foreign gun into Parmenter and three into Berardelli. And it is on the fact that such a hypothesis could be constructed, whether it was prova­ ble or not, that the defense based its motion for a new trial. The hundreds of pages of affidavits which supported this hypothesis might or might not have emerged as proved "facts" after the searching review of the courtroom. But the inherent reasonable­ ness of the argument which could now be developed was presented as a matter of law. The reply of the Commonwealth exists only in the fragmentary portions quoted in the appeal record. There were, of course, coun­ ter-affidavits to those offered by the defense. Judge Thayer's denial of the motion is incorporated in a deci­ sion of fifty-five pages in which he reviews and weighs all that the Medeiros motion embraced in order to determine a single ques­ tion: . . . this Court must find that the defendants have established, by a tair preponderance of the evidence, the truthfulness of the Madeiros Confession. But this Court, if his natural feelings of humanity were stretched to the limit, cannot find as a fact that Madeiros told the truth.22 Consequently, the motion for a new trial was denied. Once again the defendants appealed to the Supreme Judicial Court, and in doing so they labored under two severe handicaps. In the first place, the appeal was based upon a set of affidavits and not upon the record of a trial; such a foundation must necessarily have appeared less substantial to an appellate court. Secondly, it was now inevitable, in view of the nature of Judge Thayer's deci­ sion, that the appeal should embody an attack upon the compe­ tence and fairness of the trial judge. The controversy had become personal to a high degree and, rightly or wrongly, Judge Thayer was forced into the position of chief defendant. The first question argued in the defendants' brief was this: . . . whether the confession, affidavit, and deposition of Medeiros, and the large number of affidavits tending to corroborate the same, con-

WHAT HAPPENED

21

stituted evidence so "weighty and of such nature as to its credibility, potency, and pertinency to fundamental issues in the case as to be worthy of careful consideration" and "as to afford a probability that it would be a real factor with the jury in reaching a decision" if the motion were granted—in other words, whether it was "important evi­ dence of such a nature as presumably would have genuine effect." 23 And in support of a positive answer to this question a very im­ pressive mustering of the facts is offered. Especially effective is a parallel presentation of the cases against Sacco and Vanzetti and against the Morelli gang as to character, motive, opportunity, con­ fession, identification, alibi, guilty behavior, bullets, and so forth. Equally important to the defense of Sacco and Vanzetti was the attack in the appeal brief on the competence and bias of Judge Thayer as these qualities are reflected in his denial of the motion. The short answering brief of the Commonwealth reasserts the familiar argument that the motion raises questions of fact which lie entirely within the discretion of the trial judge: The Commonwealth further urges that the broad question whether Madeiros participated with others in this crime was one of disputed fact, and that the finding of the Court is final, and that not one word of his decision betrays an unconscientious judge, misusing and abusing his broad discretion, but that on the contrary that decision clearly shows that the presiding judge possessed a high degree of intelligence and acumen and a keen, analytical mind, together with unlimited courage, legal learning, and a marked ability to discover the complete weakness and lack of probative value of this mass of entirely uncon­ vincing affidavits.24 It was by now apparent to all concerned that the defense of Sacco and Vanzetti was becoming hopelessly obscured by the vio­ lent discussion which centered around Judge Webster Thayer. Under these unfavorable and confusing auspices the Supreme Judicial Court once more rendered its decision in this capital case. The adverse opinion is not lengthy; it rests in large measure upon the established right of the trial judge to consider the new evi­ dence as a matter of fact and to reject it if he is not convinced of "the credibility of those who furnished the newly discovered evi­ dence." 25 As for the quality of Thayer's decision, the Supreme Judicial Court suggests that it would have been well to deny the motion without an accompanying memorandum.

22

THE LEGACY OF SACCO AND VANZETTI

The Significance of the Records of the Department of Justice. Along with the Medeiros confession and the hypothesis built on the activities of the Morelli gang, the defense submitted evidence that there had been an ominous and prejudicial alliance between the prosecutor and the Boston office of the Department of Justice. This contention was argued, denied, appealed, and again denied along with the Medeiros-Morelli material although there was no connection between the two elements. Consequently, after more than two and a half years of strenuous appeal to the Supreme Judicial Court, after the opening up of an entirely new line of defense through the allegation that the Morelli gang were the real criminals, the record stood clear. Sacco and Vanzetti could offer no further substantial proof of their innocence by the submission of evidence or by the propounding of argument. Under the law of the Commonwealth of Massachu­ setts they were now required to be brought before the judge who had presided at their trial in order that sentence of death might be passed upon them. FIFTH PERIOD. APRIL

9,

I927, TO AUGUST

2$, IQZ f J

During the last four and a half months of the Sacco-Vanzetti case, numerous judicial and executive authorities were asked to consider both the evidence against the defendants and the ques­ tion of whether they had had a fair trial; in some instances com­ plete or partial reviews were granted, and at other times they were denied. No review had an outcome favorable to the defendants. In the course of the several hearings new evidence was offered by both the defense and the prosecution. Unfortunately this evi­ dence did not have the impact which its potential significance de­ manded. No procedure was available for its trial as a matter of "fact." Furthermore, the defense found itself more and more fre­ quently attacking the Massachusetts courts and the state system of criminal procedure, an unfortunate but inevitable conclusion to the long battle. And lastly, the state of world-wide unrest over the issue intensified the personal animosities of counsel on both sides. Under all these handicaps neither new nor old evidence was likely to have a satisfactory hearing. Sentence Imposed by the Trial Judge. Sacco and Vanzetti were brought before Judge Thayer on April 9, 1927, and it was ordered

WHAT HAPPENED

23

that they be executed in the week beginning July 10; this date was later advanced to August 10, and again to August 22, in order that the several special motions and petitions might be heard. Prior to the imposition of sentence Sacco made a brief statement in which he denied his guilt. Vanzetti also addressed the court; he asserted his innocence, discussed several aspects of the evidence, and commented upon the judge's prejudice. He concluded with a statement of his political and personal philosophy. These speeches, particularly that of Vanzetti, are moving documents which throw light on the character of the defendants, but they add nothing substantial to the legal narrative. The Petition for Executive Clemency, the Hearings and Deci­ sion of the Advisory Committee, and the Denial of Clemency. On May 4, counsel presented Governor Alvan T. Fuller with a peti­ tion for executive clemency, signed only by Vanzetti. The lan­ guage of the clemency petition was Vanzetti's, very slightly clari­ fied and improved by his counsel. Governor Fuller now undertook a study of the case. The degree to which his own investigation influenced his denial of clemency is unknown; it may have been very great or he may have been largely moved by the findings of an extraordinary Advisory Com­ mittee which he appointed on June 1. This committee or commission—its members used both termsconsisted of A. Lawrence Lowell, President of Harvard Univer­ sity, Samuel W. Stratton, President of the Massachusetts Institute of Technology, and Robert Grant, a retired probate judge.26 The Committee reported to the Governor on July 27. In its hearings the attention of the Committee was directed toward the record of the trial, the atmosphere surrounding and invading the Dedham courtroom, the new evidence of the supplementary motions, and the prejudice of Judge Thayer. The formal decision of Governor Fuller in which he denied clemency was made public on August 3, four days before the pub­ lic release of the Advisory Committee report. There are no state­ ments of fact or opinion in the executive decision which throw new light on the situation. Thus, on August 3, 1927, ended the last reasonable hope of a new trial. Perhaps, in fact, that hope should have been abandoned even earlier; Sacco may have had the clearest view when he re­ fused to sign the petition for clemency.

24

THE LEGACY OF SACCO AND VANZETTI

The Motion on the Trial Judge's Prejudice, Argued before the Trial Judge and Denied; Unsuccessful Attempt to Bring the Ques­ tion of the Trial Judge's Prejudice before the Supreme Court. Arthur D. Hill replaced William G. Thompson as chief defense counsel on August 6; Hill had long been associated with the case. Thompson must have thought that new counsel at the bar would prove less irritating; he may also have felt less sure of himself be­ cause of sheer exhaustion. A series of last-minute efforts was made in the Massachusetts courts between August 6 and 19. One procedure was to ask for a revocation of sentence and permission for a new trial on the ground of the trial judge's prejudice. According to customary procedure this request was ordered to be heard by Judge Thayer. Counsel asked Thayer to allow another judge to hear the motion; he refused to do so, heard the argument himself, and denied the motion on the ground that he lacked jurisdiction because sen­ tence had been passed and because more than a year had elapsed since the trial. An appeal was taken to the Supreme Judicial Court. Simultaneously a writ of error was asked for from a single jus­ tice of the Supreme Judicial Court; the view was advanced that it was improper for a trial judge to rule on his own prejudice; refer­ ence was made to the state constitution and to the Fourteenth Amendment of the Constitution of the United States. Associate Justice Sanderson denied this petition, and an appeal was taken to the full bench of the high court. The appeals from the Thayer and Sanderson rulings were merged and heard as one plea before the Supreme Judicial Court on August 16. That body held that Thayer had ruled correctly in denying his jurisdiction, and that the defendants were given adequate procedural opportunity through the provision that al­ lowed them to present their petition for a writ of error to a single justice of the Supreme Judicial Court. They further held that a writ of error under common law, such as was now asked for, was obsolete. This unfavorable decision, announced on August 19, closed the Sacco-Vanzetti case in the courts of Massachusetts. Unsuccessful Attempts to Enter the Federal Courts. While the last attempts were being made to save Sacco and Vanzetti through the courts of Massachusetts, generally similar pleas were placed before several federal judges. Three petitions for a writ of habeas

WHAT HAPPENED

25

corpus were presented: to Associate Justice Holmes of the Su­ preme Court of the United States on August 10, to Judge Ander­ son of the First Circuit Court of Appeals on the same date, and to Judge Morton of the District Court for the District of Massachu­ setts on August 19. Justice Holmes denied the writ on the ground that it could be issued only if it were shown that the defendants had been convicted in a court which had not had the power to try them. Judges Anderson and Morton held the same view. An ultimate step involved the seeking of a writ of certiorari; such a writ could be issued by any justice of the Supreme Court of the United States who thought there was a reasonable likeli­ hood that the Supreme Court would hold that the case involved federal constitutional issues. Justice Brandeis refused to consider the application because members of his family had been active on behalf of the defendants. Justice Holmes denied the petition on August 19. There was no proof, he said, of a void proceeding, a sham trial. Rather, it was a question of the right of the Supreme Court to interfere with the verdict of a state court on the ground that the laws of Massachusetts were defective. The essential fact of record that is relied upon is that the question of Judge Thayer's prejudice, raised and it is said discovered only after the trial and verdict, was left to Judge Thayer and not to another Judge. But as I put it to counsel if the Constitution of Massachusetts had provided that a trial before a single Judge should be final, without appeal, it would have been consistent with the Constitution of the United States. In such a case there would be no remedy for prejudice on the part of the Judge except Executive Clemency. Massachusetts has done more than that. I see nothing in the Constitution warranting a complaint that it has not done more still.27 A similar request was laid before Justice Stone on August 22 and it was also denied; he expressed his concurrence with the view of Justice Holmes. The Executions. All legal avenues were now closed. Shortly after midnight of August 22, 1927, Medeiros, Sacco, and Vanzetti were electrocuted. With the carrying out of the sentence of the court, there came to an end the most famous criminal trial in the history of the United States.

Chapter II

T H E BRIDGEWATER ASSAULT, T H E S O U T H BRAINTREE MURDERS, A N D T H E PLYMOUTH T R I A L THE BRIDGEWATER ASSAULT BETWEEN SEVEN and seven-thirty o'clock on the morning of De­ cember 24, 1919, Alfred E. Cox, paymaster of the L. Q. White Shoe Company, of Bridgewater, Massachusetts, received from the Bridgewater Trust Company in Bridgewater three metal boxes containing more than $33,000. He carried them to a Ford truck, then standing on Summer Street in front of the Trust Company, and put them into a larger metal box fixed to the floor of the truck. The driver of the truck was Earl Graves, and on the seat beside him was Benjamin F. Bowles, a police officer, armed with a revolver. Cox locked the larger box, and sat on it with his back to the driver. The truck went along Summer Street and turned right (east) into Broad Street. A short distance ahead of the truck, on Broad Street, an electric streetcar was traveling in an easterly direction along a single track in the middle of the street between Summer Street and Hale Street, which leads into Broad Street from the right (north) about midway between Summer Street and the railway tracks and station. When the truck reached the vicin­ ity of Hale Street, one man, armed with a revolver, and another, armed with a shotgun, fired at the occupants of the truck and Bowles returned the fire. There was also a third man with a weapon. The truck passed the streetcar on the left and later col­ lided with a telephone pole. The men who had shot at the occu­ pants of the truck got into an automobile and drove away. No one was injured and nothing was stolen. On the same day the Pinkerton Agency was employed by the L. Q. White Company to apprehend the assailants. Operative J. J. Hayes arrived in Bridgewater on the 1:08 P.M. train from Boston. He made a report of his interviews with Earl Graves, Ben­ jamin Bowles, Alfred E. Cox, Jr., Edward C. Danforth, Frank W. 26

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

27

Harding, Michael E. Stewart (Chief of Police of Bridgewater), and Helen Perkins; all of these persons, except Stewart, were eyewitnesses to the assault or saw the bandits. It was made under date of December 24, 1919, and is endorsed at the end, "Reported 12-26-19-M." The statements of Danforth and Perkins have little importance. Material excerpts1 from the other statements follow: Graves: "As we came down Broad Street I had the truck on the right side of the street and was following a street car bound for the depot. As the car reached Hale Street it seemed to stop and I saw a dark auto like a Hudson pull in front of it into Hale Street and stop at the corner of Hale and Broad Streets. I was then close to the rear of the car. I saw three men pile out of this Hudson car and walk toward us. One man had a shot gun and the other two had revolvers. I could see we were going to be held up and I pulled my truck across the track and shot by the electric car on the left of it. The man with the shot gun fired four times at us. I did not notice what the men with the revolvers did. . . . Ben Bowles got excited and caught hold of the wheel and we ran into a telegraph pole. . . . The man with the shot gun was 5' 6" tall, 145 lbs., age 35 years, dark complexion and black mustache and looked like a Greek. He wore no hat and had a white shirt on and no collar. He wore a dark suit and no overcoat. I cannot describe the men who had revolvers. . . . Ben Bowles fired two shots at the bandits about the time they fired on us. . . ."

Cox: ". . . As we came along Broad Street near Hale Street I heard a rifle shot. I turned around just as our auto was pulling to the left of a street car and saw a man with a shot gun ten or fifteen feet away ahead of us and aiming at us and also a man near him with a revolver in his hand. I saw only two men and noticed a big dark auto standing on Hale Street at the corner of Broad Street. After we got by the electric car the bandits fired after us. Ben Bowles fired two shots at them before we went around the car. The man with the shot gun was a Russian, Pole or Austrian, 5' 8", 150 lbs., dark complexion, 40 years of age, was without a hat and wore a long, dark overcoat with the collar up. He had a closely cropped mustache which might have been slightly gray. "The man with the revolver was 5' 6" tall, nationality unknown, wore gray cap, complexion medium, clean shaven, 135 lbs., and wore a very dark overcoat. . . ."

28

THE LEGACY OF SACCO AND VANZETTI

Bowles: ". . . On nearing Hale Street, I saw a black touring car in Hale Street at the corner of Broad Street and saw three men pile out of it and come toward us. One man remained in the car. He was the driver. We were about 20 yards away when the bandits approached toward us. One of the men had a shot gun another had an automatic gun, and I did not see what the third man had. The man with the shot gun opened fire on us at once and when he did I pulled out my revolver and fired twice at him. The fellow with the automatic also fired, and as he did Graves pulled our truck to the left of the street car and this blocked the bandits and saved us. . . . Graves lost control of the truck and I caught the wheel of the truck, and the truck ran into a telegraph pole. . . . I can positively identify two of the bandits. The man with the shot gun was 5' 7", 35 or 36 years, 150 lbs., had a black closely cropped mustache, red cheeks, slim face, black hair and was an Italian or a Portugese. He had no hat on and had a black overcoat on with collar up. . . . The man with the automatic gun was short and thick set, 5' 2-3", 190 lbs., light complexioned, clean shaven, was pock marked and broad shouldered. 1 think he was a Russian Pole. He wore a gray cap like a police winter cap and a long brown ulster. . . ."

Harding: ". . . At Hale Street near Broad Street I saw a black Hudson #6 auto standing with the front wheels on Hale Street and the rear wheels on Broad Street. The car was headed down Hale Street and the curtains were all drawn. It was a 7 passenger affair and bore the Mass. number 01173 C. An electric car was coming along Broad Street toward the depot. I then saw a man step out onto Broad Street from Hale Street as if to take the car. The electric car seemed to stop at Hale Street and I then observed the man drop down on one knee on Broad Street near Hale Street. He had a shot gun in his hands and he fired twice at the White Co. Ford truck as it came along in the rear of the electric car. The truck was then on the left of the car track. I then saw the man who stepped out as if to take the car with a blue Colt-revolver in his hand and he fired at the White truck several times. I also saw a third man in the street but saw no gun with him. He later got into the auto with the bandits after the shooting. Ben Bowles a police offi­ cer who was on the Ford truck with the paymaster fired twice at the bandits who also fired at the truck after it passed the electric car. The bandits then slowly got into their Hudson car and sped down Hale Street toward Plymouth Street. The man with the shot gun was slim, 5' 10", wore a long black overcoat and black derby hat. I did not get much of a look at his face but think he was a Pole. The shot gun was one of these pump guns. He dropped on his knee near a large elm

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

2G

tree at the corner of the two streets. The man with the .38 calibre Colt revolver looked like an Italian. He was 5' 5½", 150 lbs., dark com­ plexion, clean shaven, and wore a dark cap. The third man who did not seem to do any shooting wore a black soft hat, brown overcoat of rough cloth, was 5' 8", 160 lbs., stocky build, clean shaven black hair and eyes, hair nicely cut and wore a khaki shirt, soft turndown collar, and dark bow tie. I have seen him hanging around the streets here for four or five days and noticed him as a stranger. I think he is an Italian. Yesterday I saw him around here with the man with the Colt revolver in the holdup. I saw only three men get into this Hudson car. I did not notice anyone in the car. The electric car really saved the men on the White Co. truck and frustrated the plans of the bandits." Stewart "advised me [Operative Hayes] tonight in his office at the Bridgewater town hall that he believed that the holdup was the work of an out-oftown band of Russians with a possible confederate in the White Shoe shops. . . . He said he found that the number plates on bandit's car were stolen from a garage at Needham, Mass. one week ago. . . ." The same operative reported, under date of December 26, that George Hassam, proprietor of the Needham Garage, stated: "On Monday, December 22, 1919 between noon and 2.30 P.M. an Ital­ ian came into the garage and asked for a pair of number plates and said he bought a car in the next town without plates. I refused to give him any, I asked if he bought the car at Diehl's Place in Wellesley and he said 'Yes.' He was stockily built, 40 years old, five feet seven or eight inches tall, dark complexioned had a closely cropped mus­ tache, dark eyes, and wore a black soft hat and dark overcoat. I think he was a Sicilien [M'C]. . . . I noticed that he had on a flannel shirt and his complexion was sallow. He spoke broken English. . . . I did not learn that the number plates were missing until I heard of the hold-up on Wednesday although I have heard someone say that the plates were missed Saturday." [The plates bore number 01173 C Mass.] The same report asserts that Chief of Police Norman MacKenzie of Needham said that the Newton police inspectors had noti­ fied him that the men in the Bridgewater holdup and the car involved fitted the description of the men .and car involved in a store break in Newton a week or two earlier in which an officer was shot; he also said that on November 22 a seven-passenger Buick car, owned by Daniel H. Murphy, was stolen in Needham, and was seen in Dedham on the night it was stolen being driven

GO

THE LEGACY OF SACCO AND VANZETTI

at a fast rate. "This car may be the one the bandits had." Under the same date operative Η. H. reported that during the evening of Sunday, December 22, a Buick seven-passenger touring car be­ longing to Daniel H. [sic, should, read Francis J.] Murphy was stolen from in front of 115 Fairoaks Street, Needham. "It is thought that this car may have been used by the men last Wednes­ day as it was seen in Dedham on the night it was stolen." Both reports describe the car as having a black body with a light blue stripe around the body, with a full set of side curtains and an oval glass window in the rear. [Both reports are mistaken as to the date of the theft. It occurred on November 23, 1919·] Another operative reported that on January 3, 1920, at 3:50 P.M. he met Frank W. Harding at Quincy, Mass.: "Harding . . . stated that two men boarded the train at Quincy Adams, but the first time he paid any special attention to them was after they had seated themselves. He then noticed that the men were of the same build as the two gunmen who held up the L. Q. White truck. The shorter of the two wore a cap of the same color and in the same angle as did the short gunman. The tall man wore a black shiny overcoat exactly like the one worn by the tall gunman. Harding states these men were both Italian and both had tickets to Boston. He stated he was later able to get a good look at these men's faces but as he did not see them on the day of the holdup he was unable to say whether they were the gunmen or not. These two men he stated were both dark complexioned, the taller of the two having a small short cropped mustache. "Between 4 P.M. and 6.30 P.M. we made the rounds of the four pool rooms and bowling alleys but saw no one who would answer the description of the men wanted. As Mr. Harding had to leave Quincy at 6.30 P.M. we discontinued at that time." No definite results were achieved by the Pinkerton Agency, so far as is shown by the reports made available to the defense by the Agency. A COLLATERAL CRIME: THE SOUTH BRAINTREE MURDERS

Shortly before 9:30 o'clock on the morning of April 15, 1920, an agent of the American Railway Express Company received in South Braintree, Massachusetts, from the baggage car of the train from Boston due at Braintree at 9:18, an iron box about twelve inches high by eighteen inches wide by twenty-four inches long,

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

31

containing a canvas bag weighing about twenty lbs. in which was the Slater and Morrill payroll. He took the box to his office, which was near the railway station in the Slater and Morrill Building Number ι west of the railway tracks. There he took out the bag and carried it to the Slater and Morrill office. The paymistress had the sum of $15,776.61 put into pay envelopes for the employees, and placed the envelopes in two wooden boxes, each of which was then enclosed in a steel box. At 2:55 P.M. the assistant paymaster, Frederick A. Parmenter, took the boxes, and, accompanied by Alessandro Berardelli, a special officer, left the office to carry them to the Slater and Morrill factory building, a short distance east on Pearl Street and beyond the railway tracks. About midway between the tracks and the factory building they were shot down, and the steel boxes were thrown into an automobile in which the shooters and their several confederates escaped. Berardelli died within a few minutes, and Parmenter lived for only about fifteen hours. On April 17, 1920, an inquest was held at Quincy at which it was established that Berardelli was shot four times and Parmenter twice, and that each died as a result of the shooting.2 Two physi­ cians and twenty-three laymen testified. Their testimony revealed nothing which was not brought out at the trial of Vanzetti for the attempted holdup at Bridgewater and the trial of Sacco and Vanzetti for the murders at South Braintree, although there were some slight discrepancies. It may be worth noting that the witnesses dis­ agreed as to the color of the bandit car, and a few described it as a Buick. About 3:30 P.M. on the afternoon of the day when the inquest was being held at Quincy, Mr. Charles L. Fuller and Mr. Max E. Wind, both of Brockton, were riding horseback on a woods road which leads off Manley Street, West Bridgewater, and, at a place not visible from Manley Street, saw an apparently abandoned automobile, which was afterwards shown to be the stolen Murphy car. They immediately notified the police, and in a short time Policeman William S. Hill and City Marshal Ryan of Brockton arrived on the scene. The automobile was then driven to the Brockton police station. On April 19, 1920, Simon E. Johnson, who was running a gar­ age at Elm Square, West Bridgewater, went to the place where Mike Boda lived on the corner of South Elm and Lincoln Streets, and got Boda's 1914, five-passenger Overland automobile and

G8

THE LEGACY OF SACCO AND VANZETTI

towed it to his garage at Elm Square for repairs. It was fully re­ paired within a week. On the evening of May 5, 1920, about 9:30 o'clock, Boda, Sacco, Vanzetti, and Orciani met in front of Simon Johnson's house, which was on North Elm Street about a quar­ ter of a mile from his garage. Boda had come for his car but had no 1920 number plates for it, and Johnson advised him not to take it without number plates. Boda and Orciani left on a motor­ cycle, and Sacco and Vanzetti took a streetcar after walking about a mile. They were arrested while on the car, at about 10:00 P.M., and were taken by the arresting officers to the police station at Brockton. So far as appears in any of the published documents, Boda was never apprehended. The record indicates that Orciani was arrested but was never prosecuted. Both Sacco and Vanzetti were questioned by Chief Stewart on the night of May 5, and by District Attorney Katzmann on the following day. INDICTMENT OF VANZETTI FOR THE BRIDGEWATER ASSAULT

On May 11, 1920, Chief Stewart filed a complaint against Van­ zetti charging that he "being armed with a dangerous weapon did assault Alfred E. Cox with intent to rob him." On May 18, a pre­ liminary hearing was held in Brockton before Police Court Judge Thorndike.3 Mr. John P. Vahey appeared for Vanzetti and crossexamined the witnesses produced by the prosecution, namely, Cox, Bowles, Harding, and Mrs. Georgina Frances Brooks. It appeared that Earl Graves had died in February. Cox described the encounter in much the same way as in his reported statement to the Pinkerton operative. Concerning the appearance of the bandit with the shotgun, he testified: "He was slight build, not a heavy man, nor a tall one. He had a short croppy moustache. Well trimmed. Dark . . . a foreigner. . . . He had the appearance of high cheek bones. . . . The hair he had stook [sic] up. He had a scared expression." As to Vanzetti, he said: "I think he looks enough like the man to be the man." On cross-examination Mr. Vahey asked: "This minute, after looking at him this morning and after having seen him in the Police Sta­ tion and after having seen him that morning, you are not now sure enough of it to swear positively he is the man you saw there on the 24th of December with a shotgun in his hand?" A. "No, I am not." Bowles gave an account of the attempted holdup not varying

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

33

greatly from his statement to the Pinkerton agent. His description of the man with the shotgun was "about 5-8, dark complected, red cheeks, short croppy moustache. Dark. Prominent cheek bones, high, a stary look to his eyes, a glary look. Hair not very long, he did not have a hat on, hair just stuck up a little on top. . . . Black moustache." He pointed out Vanzetti as the man. Harding's testimony as to the shooting was in general in accord with what he is reported to have told the Pinkerton man, but his description of the automobile and of the man with the shotgun and of his opportunity to observe him deserves notice: "He was a man of medium height, dark complected, a long black overcoat and no hat. Hair cut close in back. Moustache, dark. . . . It seemed to be croppy. Not little and small, but one trimmed up. High cheek bones. Swarthy, dark complected. His cheeks were red." On cross-examination he said that the bandit's mustache "was a moustache that had been cropped off, not short and croppy, but a moustache that had been trimmed up. Not long and flow­ ing, but shorter. Did you ever see moustaches that are small but not Charlie Chaplins but an overgrown Charlie Chaplin, trimmed on the ends." He also testified that he got a "fairly good" look at him, "a very good look at him"; and that the automobile was a Buick. He identified Vanzetti as the man: "There is no question in my mind." Mrs. Brooks on the morning of December 24th about 7:30 o'clock was walking on the southerly side of Broad Street toward the railroad station. Nearly opposite Hale Street on the southerly side of Broad Street an automobile was standing, and she crossed the street about two feet in front of it. There were four men in the automobile. Sitting at the wheel was a man whom she posi­ tively identified as Vanzetti. She proceeded to the railroad station, and while there heard two shots and saw the L. Q. White truck bump into a pole or a tree. THE TRIAL OPENS AT PLYMOUTH

On May 25, Vanzetti was ordered held for action by the grand jury. On June 11, he was indicted for assault with intent to rob and assault with intent to murder. The petit jury was impaneled on June 22 and the hearing of testimony began on June 23. For the Commonwealth, District Attorney Frederick G. Katzmann and Assistant District Attorney William F. Kane appeared; for

34

THE LEGACY OF SACCO AND VANZETTI

Vanzetti, Mr. John P. Vahey and Mr. James M. Graham. Judge Webster Thayer presided. The place of trial was Plymouth. The prosecution relied upon the testimony of four eyewitnesses of the shooting, of one witness who saw Vanzetti in the bandit car before the encounter, and upon circumstantial evidence tending to connect him with the bandit car and its occupants. Although there is no direct statement to that effect in the available record, it is clear from the testimony of Francis J. Murphy and Brouillard that the car referred to in the testimony of the other witnesses as having been seen "at Brockton" or "out here beside the court house" or "outside the court house" was the stolen Murphy car, found in the Manley woods. The cap identified in the testimony of Casey and Stewart as having been found in Vanzetti's room has no connection at all with the cap found at the scene of the later robbery and murders at South Braintree. SUMMARY OF THE EVIDENCE AT THE PLYMOUTH TRIAL

In the foregoing and following summaries of the statements and testimony of witnesses, every effort has been made to omit nothing favorable to the prosecution's case and to be fair to defendant. It must be borne in mind, however, that any summary of a docu­ ment is likely to reflect the opinion of the summarizer, and to include at least an unconscious comment by him. One who forms his opinion from the reading of any record alone is prone to err, because the printed page fails to produce the impression or convey the idea which the spoken word pro­ duced or conveyed. The writer has read charges to the jury which he had previously heard delivered; and has been amazed to see an oral deliverance which indicated a strong bias appear on the printed page as an ideally impartial exposition. He has seen an appellate court solemnly declare the testimony of a witness to be especially clear and convincing which the trial judge had orally characterized as the most abject perjury. Consequently the review in this and subsequent chapters is submitted with a full realiza­ tion that it is subject to all the imperfections of a comment upon the record4 by one who has neither seen nor heard either the de­ fendants or the witnesses. Eyewitnesses of the Assault, i. Benjamin F. Bowles, the guard, was sitting to the right of the driver of the payroll truck. He saw

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

35

a dark-colored automobile driving on the wrong side of Broad Street toward the truck. It stopped, two men got out, and the car then turned into Hale Street, when the truck was twenty-five to forty yards away. One of the men had a revolver, the other a shot­ gun. They ran toward the truck. The man with the revolver pointed it at the truck, which slowed up and then increased speed; he fired, and Bowles shot at him. The streetcar was near Hale Street and the driver turned to the left of it; and as the truck was swinging to the left, the man with the shotgun fired from a kneel­ ing position about sixteen or eighteen yards6 from the truck. After the truck got past the streetcar, he fired again, and Bowles turned and shot at him. At that time Bowles did not know the make of the bandit car. He saw it later at Brockton, and at the trial he knew it was a Buick. The man with the shotgun was about five feet eight inches, twenty-eight to thirty years old, dark mustache trimmed on the ends or side, high forehead and high cheek bones, face red, forehead hair near an inch high, brushed back. He had no hat and wore a long black coat. Vanzetti was that man. The man with the revolver was short, wore a brown coat and a cap pulled down; he had a smooth face. The cross-examination did not touch Bowles's description of the man with the shotgun at the preliminary hearing, where he had said that the man had a "short croppy moustache," 6 nor did it inquire as to the man with the revolver whom Bowles described at the preliminary hearing as having a round face, and wearing a gray flat-topped cap with a stiff visor.7 2. Alfred E. Cox heard an explosion which sounded like a blow­ out or backfire when the truck was about midway between Sum­ mer Street and Hale Street. He turned and saw a "commotion" near Hale Street, an automobile, a heavy touring car with the front wheels on the crossing of Hale Street, and three or more people coming from the direction of the car. He then heard a sec­ ond shot. When the truck got about twenty-five or thirty feet from Hale Street the third shot was fired, directly at the occupants of the truck by the man with the shotgun as the truck passed him about a dozen or fifteen feet away. This man was five feet eight, of slight build, medium complexion, prominent, rather high cheek bones, short, well-trimmed mustache, high, long forehead, hair not especially thick but standing up and back; a foreigner. Vanzetti was the man. The other man was somewhat, but not a

36

THE LEGACY OF SACCO AND VANZETTI

great deal, shorter, about thirty to thirty-five years old, one hun­ dred forty pounds, wearing an overcoat and a dark cap. On cross-examination he conceded that at the preliminary hear­ ing he had testified that the man with the shotgun had a short, croppy mustache well trimmed, but said that he had discovered that he didn't know just what "croppy" meant. He also said that his identification of Vanzetti was no more positive than at the preliminary hearing: "I feel sure that he is the same man. . . . I can't say that I am positive that he is the same man." 8 3. Frank W. Harding lived on Hale Street. On the morning of December 24, 1919, he was on his way to work as a salesman at Bassett's garage. He had gone on the left side of Hale Street toward Summer Street about sixty feet when he heard someone running a little back of him, and as he turned to cross Broad Street he saw a man running in the street some twelve or fifteen feet east of him. When this man got some three or four feet past Harding, the man shot at the White truck which was then about forty feet away. Just as the truck was passing the streetcar, he fired at it again, when it was only twelve or fifteen feet from him. He fired at it the third time after it had passed the streetcar and was about fifty yards away. This man wore a long coat, but no hat; he was "dark com­ plected," had a high forehead, short hair, high cheek bones, rather hard broad face, "more of a round head bullet shaped," a heavy dark mustache "that had been trimmed, the ends had been cut off, anyway . . . not what you would call a flowing mustache"; his face was red on the upper part at the cheek bones.8 There was another man with a revolver, who wore a brown coat and a gray cap with visor pulled down over his face so that Harding could see only a small portion of his face; he fired the revolver once at the truck and fired again when it was fifty yards down the street. Then the men got into the automobile headed into Hale Street, a dark-blue or black, seven-passenger Buick. Harding ran back and took the number of the car, and later gave it to the Chief of Police. He saw this car "out here beside the Court House here. . . . Yesterday." 10 ["Yesterday" was June 22.] Vanzetti was the man with the shotgun. He had seen Vanzetti at the Brockton po­ lice station in May. He was cross-examined about his testimony at the preliminary hearing at which he had described the man with the shotgun as "a man of medium height, dark complected, a long black overcoat and no hat. Hair cut close in back. Moustache,

THE BRIDGEWATER ASSAULT! THE PLYMOUTH TRIAL

37

dark. . . . Call it medium. It seemed to be croppy. Not little and small, but one trimmed up." 11 High cheek bones, red cheeks. On cross-examination at Brockton he had said that he got a "fairly good" look at him, "a very good look at him." 12 As to the mus­ tache: "It was a moustache that had been cropped off, not short and croppy, but a moustache that had been trimmed up. Not long and flowing, but shorter. Did you ever see moustaches that are small but not Charlie Chaplins but an overgrown Charlie Chaplin, trimmed on the ends." 13 4. Maynard F. Shaw, a fourteen-year-old high-school student, was delivering newspapers on the morning of December 24, 1919. As he came out of a yard on Broad Street opposite Hale Street he saw a large touring car with curtains down drive into Hale Street and stop so that the back wheels were in the gutter of Broad Street. It was a Hudson or Buick or similar car, dark with greenish tint. Two men got out of the car; there was a third man there, but Shaw did not see him get out of the car. The first man had a gun, the other two had weapons. From a distance of one hundred forty-five or one hundred fifty feet he got a fleeting glance at the face of the man with the shotgun; he could tell from the way the man ran that he was a foreigner. This man was from five feet six to five feet eight or nine, wore a long, dark overcoat, had no hat on, hair not flowing, dark well-kept mustache, a foreign look in his face, complexion dark. He was rather knock-kneed when running. This man fired at the truck when it was about a hundred feet up ahead of him, and again when the truck was just going around behind the streetcar and was only eight or ten feet away from him. Later he ran down after the truck and leveled his gun, but Shaw heard no report. The second man wore a cap, "not black but sort of light," 14 and an overcoat; he fired his revolver at the truck at least once, maybe twice. Shaw could not be sure whether the third man fired. The men got into the automobile. The man with the mustache was Vanzetti. Eyewitness before the Encounter. On December 24 Georgina F. Brooks walked down Broad Street toward the railroad station on the left-hand sidewalk. When she reached a point almost opposite Hale Street she saw a large Buick car standing at the curb on Broad Street and she stepped off the curb just in front of it to cross the street. She saw four men in the car, two in front and two in back. She noticed the man at the wheel watching her and heard

38

THE LEGACY OF SACCO AND VANZETTI

him speak to the man beside him in a foreign language. He looked at her severely. She took several looks at him, and he turned and watched her cross over and as she walked down. He was looking at her until she passed Hale Street. She kept "watching them" un­ til she got to the entrance to the depot driveway. After she got to the depot, she heard two reports while looking out the window. She saw the L. Q. White truck coming down and saw two fires coming from a weapon. The man at the wheel of the car on Broad Street was a foreigner, had a dark medium-size mustache and dark complexion and had a dark soft hat on. She saw him again in Brockton. Vanzetti was that man. The cross-examination attacked principally her account of what she had seen after reaching the station. She could not describe any of the other three men but said that the man beside the driver on the front seat also wore a dark soft hat. Circumstantial Evidence. 1. Richard G. Casey, a student at Rhode Island State College, was starting out the back door of his home on the corner of Main and Pearl Streets, about 7:20 A.M. of December 24, 1919· He saw an automobile come down Pearl Street and stop on the opposite side of the street "right in front of the rear door of my house." 15 It stood there for three or four minutes. It was a large Buick, 1919 model; the curtains on the left were all down except the one over the front door; it was dark blue or black and had a rectangular beveled-edge plate-glass window in the rear. The Buick car outside the court house "seems a lot like" that car. Seated beside the driver was a man taller than the driver; this man wore a light-brown cap. He saw a cap of that description in Chief Stewart's office and he picked it out from among six others. He identified a cap then exhibited to him as the cap which he had picked out, and it was received in evidence. The driver of the Buick had dark hair and a short well-trimmed mustache, a little larger than a Charlie Chaplin mustache, was of rather swarthy complexion, and had a rather prominent nose. He wore a black velour or soft hat. 2. John H. King at about half past seven on the morning of December 24 was in an upstairs bedroom of his home on Grove Street and saw a dark-blue or black seven-passenger Buick going thirty-five or forty miles an hour along Grove Street. It was either new or newly painted, and the side curtains on the right side were

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

59

down. He had it in view while it traveled about four hundred feet. 3. Dr. John M. Murphy lived in the cottage opposite Hale Street. He heard sounds like two blowouts; he looked out, saw the streetcar going toward the station, and a large dark-colored automobile with curtains drawn on the right-hand side, standing on Hale Street. A man of medium height with a long-barreled weapon got into the car. Dr. Murphy went out and "about eight feet from the curb at the lower end of Hale Street" picked up "a paper shell, a common Winchester shell, twelve gauge that had been discharged." 1β He identified a shell that was exhibited to him, and it was received in evidence. 4. Napoleon J. Ensher, who was acquainted with Mike Boda, saw him two or three times during the winter of 1919-20, once at his house, once when he was walking past Ensher's place, and once in the spring riding in a Buick automobile. This last was seven or eight weeks before June 25, when the roads were muddy. The Buick was a large, dark Buick. Boda at that time "just waived [sic] his head and gave the pass word the same as any person meeting when they pass each other." 17 5. Michael J. Connolly, a police officer of Brockton, arrested Sacco and Vanzetti on a streetcar between 10:05 and 10:10 P.M., May 5, 1920. He searched Vanzetti and found four shotgun shells. He turned them over to Captain Connolly, night officer in charge. Four shells presented to him by counsel looked like the same shells; they were, he thought, all No. 12 gauge. The four shells were received in evidence. 6. Michael E. Stewart, Chief of Police of Bridgewater, ques­ tioned Vanzetti on the night of his arrest. In the absence of the jury he related to the court all the questions put to Vanzetti and the answers given, including those about his political views and about Sacco and Peppi, who, Vanzetti said, was his friend. Accord­ ing to the printed transcript the only material portion of the con­ versation which the witness was permitted to relate in the pres­ ence of the jury concerned Vanzetti's statements that (a) he went to Bridgewater to see his good friend, (b) he didn't know whether he had reached Bridgewater for he had never been there before, (,c) he did not see a motorcycle in West Bridgewater, (d) he had never been in Hyde Park or Needham, and (e) he did not know Mike Boda.18 Chief Stewart described Boda, as he saw him an April 20, as

40

THE LEGACY OF .SACCO AND VANZETTI

a clean-looking, slightly built man five feet four inches high, swarthy, with a long face, and a black mustache, not a Charlie Chaplin mustache, but a regular, small, neat one; he was wearing a green velour hat. He identified the cap, which was received in evidence in connection with Casey's testimony, as a cap taken from Vanzetti's room on May 11 and later picked out by Casey from a number of caps at the police station. He also stated that the number on the bandit car, as given to him by Harding, was 01173 C. The place where the Murphy car was found was thickly wooded so that the car could not have been seen from Manley Street. 7. Austin C. Cole was the conductor on the streetcar on which Vanzetti was arrested. He saw Vanzetti on his car also on the night of April 14 or 15 traveling from Bridgewater to Brockton. He was with Sacco, who paid the fares. Cole remembered Vanzetti be­ cause on that night he at first mistook Vanzetti for an acquaint­ ance named Tony. 8. Ruth G. Johnson, the wife of Simon Johnson, answered a knock at the door of her residence, North Elm Street, West Bridgewater, about 9:15 or 9:20 on the night of May 5, 1920, and saw Mike Boda standing in the light of a lamp attached to a motorcycle which was on the street in the direction of Brockton. As she came out the door she heard Boda call out, "His wife." Two men were then coming over the bridge walking toward Brockton. She told Boda that her husband would be right out, and then went to the Bartlett house to telephone. The two men followed her. The Bartlett house was in the direction of Brockton. When she left the Bartlett house, where she remained for about ten minutes, the two men followed her back. In the light from the motorcycle, which had then been turned so as to point toward Brockton, she got a good look at one of the men, Sacco. The other man was taller and had a mustache. They stood by the motorcycle until one man called out something. Orciani was on the seat of the motorcycle and Boda was getting ready to get in. Then the motorcycle started off. She did not look to see where the two men went. [Her statement that she telephoned to a policeman was stricken.] She saw Sacco, Orciani, and another man at Brockton police station on the night of May 6. 9. Simon E. Johnson knew Mike Boda. On April 19 Simon and his brother towed Boda's Overland car from the Coacci house [where Boda lived], to Johnson's garage. About 9:35 P.M. on May 5

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

41

he saw Boda. Mrs, Johnson had gone to the door. She had told Johnson that Boda was there, and had then gone out. When John­ son went to the door he saw Boda and the motorcycle. Two men were coming from the direction of the Bartlett house. One wore a derby; the other was taller. Mrs. Johnson was also coming from the Bartlett house. After Johnson and Boda had talked for four or five minutes, Boda went to the motorcycle and got in the side­ car; and all four men went away. The engine of the motorcycle was started just before Boda left Johnson. The light on the motor­ cycle was shining toward Brockton. The repair work on Boda's car had been done and it was ready for delivery. It was never called for. Boda was "a man about five feet three or four, very slight, quite slight"; he had a dark complexion and a small black mustache; he was about thirty years old and would weigh 120 or 125 pounds; was usually well dressed; on the evening of April 19 he wore a dark suit and a dark velour hat, but on the night of May 5 he was shabbily dressed with old dark clothes and a slouch hat. 10. George H. Hassam ran a garage in Needham. He had five sets of automobile number plates, one of which was 01173 C. He last saw this set on the Sunday preceding December 24, 1919, and first missed it December 24 or later. Between the Sunday and Wednesday following, probably on Monday, a man had asked to borrow some number plates. The man was about five feet six or seven inches, dark hair and dark eyes, short croppy mustache, cut close as if clippers had run through it, rather swarthy complexion; he might have been a Sicilian or of Italian descent; he wore a suit of tweed mixture, a little the worse for wear, and a checkered cap; no overcoat. Hassam did not let the man have any number plates. 11. Francis J. Murphy owned a seven-passenger 1920 Buick, with blue body, black fenders, and blue wheels. It was stolen November 23, 1919. It is the car which he saw at Brockton police station on April 19, 1920, "yesterday here," "out on the street"; but two shock-absorbers and two front bumpers had been re­ moved. The car had a black panel top with oblong plate glass in the back curtain. The number plates now on the car have "M.S.P." [Massachusetts State Police] on them. 12. Daniel M. Ryan, City Marshal of Brockton, found a 1919 or 1920 seven-passenger Buick in the woods about 150 yards in from Manley Street, West Bridgewater, and a hundred yards from a bypath. The rear glass was found in the car. Mr. Murphy identi-

42

THE LEGACY OF SACCO AND VANZETTI

fied this car as his at the police station. The car which the witness Bowles looked at was this same car. When Mrs. Johnson was at the police station, she saw Orciani, Sacco, and Vanzetti. Orciani was quite a stout man, with a short mustache and hair lighter than that of Sacco or Vanzetti. 13. Albert L. Brouillard, a member of the State Police, saw Mr. Murphy identify his car; he saw Mr. Cox and Mr. Harding look at the car and heard them say it was similar to the bandit car. He knew Boda as "a man about five feet two or three, about probably one hundred twenty pounds, slight build, dark heavy beard, shaved and a small mustache." 19 14. William H. Proctor, Captain, State Police, was tendered some shells which the prosecuting attorney said were those found on Vanzetti. He identified one as a Peters twelve gauge and two others as Winchester shells, twelve gauge. Such shells may be used in any twelve-gauge shotgun. He had had the exhibits in his pos­ session. He had some things in his possession but he had no per­ sonal knowledge where they came from.20 Nowhere does it appear what the "some things" were. Defendant's Evidence. The defense met the prosecution's case by the testimony of twenty-one witnesses, most of whom were Italians. Of these, eleven testified positively that Vanzetti was in Plymouth on the morning of December 24. Three others gave corroborating evidence tending to support the alibi. Seven of the alibi witnesses also testified that Vanzetti always wore his mustache as it was at the trial, long and with the ends untrimmed and four others, including a barber who served Vanzetti, testified to the same effect. Many of the Italians testified through an in­ terpreter, and the record makes it clear that he was unskillful and at times inaccurate. Most of the alibi witnesses either bought eels from Vanzetti or saw him delivering them on the morning of December 24. They gave as their reasons for fixing the date that Italians used fish and particularly eels the day before Christmas, which is a fast day. On cross-examination they were asked about similar matters on other fast days preceding feast days, and about whom they had seen on other dates; and most of them were unable to give any effective answers. The witnesses concerning Vanzetti's mustache had to concede that they had not paid special attention to his mustache at or about Christmas time, and most of them could not say that

THE BRIDGEWATER ASSAULT." THE PLYMOUTH TRIAL

43

he had never had the ends trimmed. The most important and telling evidence of alibi was given by BeItrando Brini, a thirteenyear-old boy, corroborated by his father and mother and by Enrico Bastoni. But Mr. Katzmann induced him to say that he had told his story twice to Mr. Vahey and five times to his parents; that if he omitted anything, his papa would tell him and next time he would be sure to put it in: "Q. You learned it just like a piece at school? A. Sure." 21 He said also that his father had collected money for Vanzetti's defense; and that when he told the story to Mr. Vahey his parents and at least three other defense witnesses were present. In questioning Mrs. Brini there was insinuation that her story had been learned and rehearsed. Christophori, who had testified as to Vanzetti's mustache, said that a Mr. William M. Douglas whom he had seen frequently, the last time about four weeks previously, had a small light mustache. On rebuttal it was shown that Douglas had not worn a mustache at any time during the preceding eleven years. Several witnesses were cross-examined as to whether they be­ longed to organizations with Vanzetti; one was asked whether he had discussed with him governmental theories, or supply and demand, or rich man versus poor man. These questions were all answered in the negative. Vanzetti did not testify. Before the arguments began it was stipulated that if Officer Connolly were recalled, he would testify that Vanzetti, when ar­ rested, was carrying a loaded revolver of .38 caliber, with five chambers. The jury on July 1 found Vanzetti guilty of assault with intent to rob and of assault with intent to murder. COMMENT ON THE EVIDENCE

If the testimony given at the trial is to be credited, the witnesses Bowles, Cox, Harding, and Brooks had an excellent and adequate opportunity to observe the features and appearance of the shotgun bandit. Shaw was in a less advantageous position. Bowles and Cox were doubtless much excited, for the gun was pointed at them; but this very circumstance would justify the conclusion that the picture of the shooter would be stamped upon their memories. Harding had a close view from another angle. Mrs. Brooks cer­ tainly had the driver of the car under careful scrutiny in a situa-

44

THE LEGACY OF SACCO AND VANZETTI

tion which would cause her to remember his face. Shaw had only a fleeting glance. All of them had seen Vanzetti at the Brockton police station, and all but Shaw had identified him at the prelimi­ nary hearing as the shotgun bandit. There was available no re­ corded statement of any kind by any of them of the features of the bandit made before Vanzetti had been arrested and presented for possible identification. Even so, it is interesting to note that both Cox and Harding at the trial made modifications in the testimony which they had given at the preliminary hearing, and thereby caused their descriptions to conform more nearly to the features of Vanzetti. Cox gave every appearance of sincerity, but not so much can be said for Harding. Bowles was not asked about the preliminary hearing but in fact he changed his earlier "short croppy moustache" to "moustache was trimmed on the side," or "trimmed on the ends." And if the Pinkerton reports had been available to the defense, Cox would have had to explain why he had said the mustache was closely cropped and might have been slightly gray; and Harding, if he did not deny, would have been embarrassed to account for, his statements (a) that he did not get much of a look at the face of the man with the shotgun, who wore a derby hat, but thought that he was a Pole,22 and (6) that he could not identify as the bandits the two men whom he saw on a railway train on January 3, as he did not see the faces on the day of the holdup. Indeed the successive stories of Harding make it seem probable that his memory was being molded to fit the theory of the prosecution, but this was not so apparent at the trial. Mrs. Brooks was badly discredited as to a part of her testimony, and Shaw's identification was almost worthless. On the whole, however, this evidence by eyewitnesses, standing alone, was quite as satisfactory as is usual in cases of this sort, and was sufficient of itself to justify a verdict of guilty. It was in direct conflict with the alibi evidence but not with testimony of any witness of the encounter. The circumstantial evidence consisted of several items tending to corroborate the direct evidence: (1) The shell found by Dr. Murphy at the scene of the holdup and the four shells which Vanzetti had in his pocket when ar­ rested. These were a basis for an inference that Vanzetti had avail­ able the weapon and ammunition used in the holdup. (2) The testimony as to the similarity of the bandit car to the

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

45

stolen Buick automobile found in the Manley woods in April, 1920, had some tendency to prove that it was the bandit car. (3) The testimony ( a ) of Casey describing an occupant of a car, which was probably the bandit car, in terms similar to the description of Boda as given by several other witnesses; (b) of Ensher that Boda was riding in or driving a similar Buick car shortly before the stolen car was discovered; (c) of Mr. and Mrs. Johnson concerning the conduct of Boda, Orciani, Sacco, and Vanzetti in the vicinity of the Johnson house; and (d) of Chief Stewart that Vanzetti denied his presence there and denied his acquaintance with Boda, and that Vanzetti when arrested shortly after he left the vicinity of the Johnson house was armed with a fully loaded .38 caliber revolver. Possible inferences from this group of facts were that Boda was one of the bandits; that he had the use of the bandit car after the attempted holdup; and that Vanzetti lied about his relations with Boda and his suspicious con­ duct before the Johnson house because he was conscious that he was guilty. The defense offered no evidence to controvert any of this evi­ dence. Dr. Murphy, Chief Stewart, and Mr. and Mrs. Johnson were uncontradicted. The inference as to the identity of Boda as an occupant of the bandit car was woefully weak, and the infer­ ence of consciousness of guilt, necessarily built upon Boda's par­ ticipation in the holdup, was still weaker. But the failure of the defense to put in any explanatory evidence gave these items un­ merited weight. It also added considerable value to the testimony of Dr. Murphy and Chief Stewart. The worth of the testimony for the defendant depended upon the credibility of the witnesses. Their statements as to buying eels from Vanzetti are convincing, but their reasons for fixing the date as the twenty-fourth rather than the twenty-third are in many instances not persuasive and were not then supported by any documentary evidence of purchases by Vanzetti. The testimony of Mrs. Fortini who was Vanzetti's landlady, of Di Carli the baker, and of the Brinis—father, mother, and son—has in print all the earmarks of reliability. The imputation against the landlady's testimony because she would not make a positive statement to the police officers about Vanzetti's whereabouts on Christmas Day was not serious. The cross-examination of the Brini boy, considered in connection with his own redirect examination and the testi­ mony of his mother, does not destroy the worth of his statement.

46

THE LEGACY OF SACCO AND VANZETTI

It must be said, however, that this cross-examination, taken alone, tends strongly to show that a group of Italians had framed an alibi for Vanzetti and had coached this bright youngster to tell his story with details which would tie in with the incidents related by other witnesses. The evidence as to the condition of Vanzetti's mustache came almost exclusively from Italians, and was whittled down by admissions on cross-examination, so as to make the dif­ ference between the prosecution and the defense in this respect seem negligible. When it is remembered that much of the alibi testimony was given through an interpreter, who was unskillful, to say the least,23 and much of it in English by persons who under­ stood and spoke the language imperfectly, it is not surprising that the jury credited the eyewitnesses of the encounter and concluded that the defendant's witnesses were either mistaken or lying. And though the law commands that a jury shall draw no inference against a defendant from his failure to testify, no jury can obey this command in a case like this. Vanzetti was the one man in the courtroom who could not have been mistaken. He knew whether the answers he had given on the night of his arrest to Chief Stew­ art were true or false; he knew all about the shells found in his possession and why he was carrying a loaded revolver. He knew whether he could drive an automobile and where he was and what he was doing on December 24, 1919. But he remained silent, and left the jury to decide between the eyewitnesses and the alibi wit­ nesses without his aid. In these circumstances a verdict of not guilty would have been very unusual. CONDUCT OF THE TRIAL

There was nothing unusual in the opening speech of Assistant District Attorney Kane for the prosecution. He did overstress the importance of the case, but he was not allowed to continue on this point over objection. Included in his outline of the expected evi­ dence was the finding of a Peters shell of 12 gauge near the stolen car in the Manley woods; but no evidence of this fact seems to have been admitted, although Mr. Katzmann's statement in argu­ ment to the Court outside the presence of the jury asserts that it was.24 The examination of witnesses for the prosecution was done in the customary manner. District Attorney Katzmann's crossexamination of the defendant's witnesses was severe; it contained insinuations of their insincerity, and at times it seems to have been

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

47

somewhat insulting. It was on the whole, however, quite in keep­ ing with the usual practice of prosecutors in this country, and could not with any show of reason be called misconduct. His questions to Di Carli, Sassi, and Brini about Vanzetti's be­ longing to organizations with the witnesses and discussing with them political and economic questions may be justified as seek­ ing information bearing upon credibility. The opening by Mr. Graham fairly outlined the defendant's case, and his presentation of the evidence was an ordinary per­ formance. Mr. Vahey's cross-examination was reasonably thor­ ough, but no one could say that the case was closely tried or vigor­ ously fought for defendant, though on a few occasions Mr. Vahey did exhibit impatience with Judge Thayer's attitude. The record is full of notations of conferences at the bench, the proceedings at which were not stenographically taken. There is no way of telling whether they were beneficial or prejudicial to the defense. The recorded decisions of Judge Thayer on objec­ tions to evidence seem on the whole as favorable to the defense as to the prosecution. His stupid rulings as to the admissibility of conversations are about equally divided, and defendant's counsel caused the exclusion of a conversation between Boda and Johnson which might have been very helpful to defendant after the Court had brought out the fact that Boda's car had been repaired and was ready for delivery at the time of Boda's visit on May 5, 1920. Judge Thayer's refusal to permit Chief Stewart to relate to the jury what Vanzetti had said on the night of his arrest except in so far as it related to Vanzetti's experiences on that night and his denial of acquaintance with Boda was quite as favorable to the defendant as could be asked. His handling of defendant's ex­ pressed dissatisfaction with the interpreter is somewhat exasperat­ ing, but he was frequently as dense in dealing witVsome of Mr. Katzmann's points. In his charge to the jury he particularly told the jury that no inferences were to be drawn against witnesses be­ cause they were Italians and that "people are supposed to be hon­ est, to be truthful, to be innocent." Counsel for the defense took no exception to any part of the charge.25 SUBSEQUENT EVENTS

In the Superior Court. Counsel for defendant on August 16, 1920, filed a bill of exceptions in which they alleged as errors only

48

THE LEGACY OF SACCO AND VANZETTI

the court's ruling in admitting in evidence the shell picked up by Dr. Murphy, and the court's refusal to strike the testimony of Mr. and Mrs. Johnson.26 The bill was never allowed, and no fur­ ther proceedings were taken with respect to it. Vanzetti's Version. After he had been in prison for six years Vanzetti published his version of the case. He complained that his counsel had failed to make proper preparation for the trial. They had not found or called available eyewitnesses. They had insisted that Sacco should not testify concerning Vanzetti's acqui­ sition of the shotgun shells. They had by persistent argument suc­ ceeded in persuading him that if he went on the stand he would be cross-examined as to his political views and would be con­ victed because of them. He charged a deliberate betrayal by Mr. Vahey.27 It is somewhat puzzling to account for the nonproduction of a single eyewitness for the defense. The reason for failing to call Sacco and Mrs. Sacco to explain how Vanzetti came to have the shotgun shells nowhere appears. Advice to a defendant to re­ frain from testifying and to rely solely on other witnesses requires strong supporting considerations, but its soundness cannot be judged without full knowledge of all pertinent factors. Where a defendant insists upon his innocence and expresses a strong desire to tell his whole story to the jury, counsel's efforts to dissuade him can be justified only by extraordinary circumstances. A final deci­ sion should not be made until all other available evidence for the defense has been introduced. Here the cross-examination of de­ fendant's witnesses, with its accompanying insinuations, must have revealed the tenor of the attack upon these compatriots of Vanzetti, summarized thus as Vanzetti quotes it: "The dagoes stand together." 28 This must have suggested the practical cer­ tainty of a verdict of guilty in the absence of testimony by the defendant himself, and the high probability that Vanzetti as a witness could do himself no harm and might do himself much good. The record taken alone may indicate inadequate industry, inefficient preparation and performance, and bad judgment. If Vanzetti's statements are to be trusted Mr. Vahey's attitude toward him and his case was inexcusable. There is, however, nothing to justify the accusation of corruption against either Mr. Vahey or Mr. Graham. And it must be said that in this discussion Vanzetti makes statements concerning both this trial and the trial of him­ self and Sacco at Dedham which are not sustained by the printed

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

49

record. He attributes low motives to witnesses against him and virtue to all who favored him. His readiness to ascribe corruption to all who did not support him seriously impairs the value of all his assertions about the Plymouth trial. Disclosures to the Governor, i. The Pinkerton Reports. In a letter of June 11, 1927, Mr. Thompson, now chief counsel for Sacco and Vanzetti, advised Governor Fuller that he had just secured reports of the Pinkerton detectives who had made an in­ vestigation immediately after the attempted robbery; and under date of June 15, he and his associate counsel, Mr. Herbert Ehr­ mann, submitted copies of them with an analysis and argument. They pointed out that the descriptions given to the detectives by Bowles, Cox, and Harding corresponded with that given by Hassam of the man who tried to borrow automobile number plates in Needham in December, 1919, and did not fit Vanzetti; and that the bandit car was said to be a Hudson by Graves, the chauffeur of the payroll truck, and Harding, the garage employee. They insisted that the changes in descriptions of man and car were the result of suggestion to harmonize them with the theories of Chief Stewart and the prosecution. 2. The Shotgun Shells. Mr. Thompson and Mr. Ehrmann in their letter of June 15 also commented upon the lack of evidence of identity of the shotgun shells found in Vanzetti's pocket by Policeman Connolly with those introduced at the trial. As to this, the available record is very unsatisfactory. Policeman Connolly appears to have put no identifying marks upon any of the shells. He turned them over to the night captain, who was not called as a witness. When four shells were exhibited to Connolly on the stand, he said that they looked like those which he had taken from Vanzetti. The source from which they were produced by counsel was not stated, and the witness was asked no question as to their condition. The same shells were shown by counsel to Captain Proctor, head of the state police, who then said that they were "the shells found on the defendant [Vanzetti] at the Brockton Court." During the course of his testimony Captain Proctor said that he had had the exhibits in the case in his possession, and that he had some things in his possession which he "was given to understand . . . came from Mr. Vanzetti," but he could not tell "whether they came from his room or off him personally." 29 Whether this

50

THE LEGACY OF SACCO AND VANZETTI

last statement referred to the shells as well as to articles of cloth­ ing, and how the shells got from the night captain to Captain Proctor, is nowhere disclosed. Nor does it anywhere appear whether counsel for defendant made any inspection of the shells before they were received as an exhibit. At the Dedham trial of Sacco and Vanzetti Officer Connolly testified that he took four shells from Vanzetti's pocket on the night of May 5. The testimony was stricken, but apparently with the understanding that it should be restored if there was testi­ mony to the effect that the weapon seen by witnesses protruding through the rear window of the South Braintree bandit car was a "shotgun or rifle" as distinguished from a "rifle." 30 No question seems then to have been raised as to the authenticity of the shot­ gun shells, for no shell was then offered as an exhibit. Just before the Commonwealth rested, however, a stipulation of counsel was made and read to the jury that "of the four shot-gun shells found on the defendant Vanzetti at the time of his arrest, two have not been introduced in evidence because they are not in the same con­ dition as when found on him, and this through no fault of the Government or the defendants." Thereupon Mr. Katzmann said: "Now, I offer these two shells which I submitted to counsel and ask that they be marked as exhibits." They were received in evi­ dence as "Exhibit 37." 81 The change in condition is at least partially explained by affi­ davits of jurymen obtained by Mr. Fred H. Moore, chief counsel for the defense at the Dedham trial, and referred to by Mr. Thompson and Mr. Ehrmann. The foreman of the jury which found Vanzetti guilty, Henry S. Burgess, opened the two shells which were not marked "Buckshot" on the wads, and found buck­ shot therein; and at least some of the jurors took shot as souvenirs of the trial. This is revealed in affidavits of the jurors, no copies of which are in the printed record. From these, so Mr. Thompson and Mr. Ehrmann say, "it appears that the wads were found sunk below the crimping from a half to three-quarters of an inch." 32 Juror Gale thought a new shell would not open so easily as these two did; and juror O'Connor noticed that there were no powder marks on them.33 If these affidavits state the facts nothing can be more certain than that these two shells were tampered with after they left the factory. If the shells had originally contained only shot of small size, such as birdshot, and were reloaded with buck­ shot, the inference that they were intended for other use than

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

51

hunting small game would be justified. Whether they were re­ loaded before Sacco got them, or between that time and the time they were taken from Vanzetti, or after they were taken and be­ fore they were received in evidence, or between their receipt in evidence and their delivery to the jury cannot be determined from any available source. In their letter to the Governor Mr. Thompson and Mr. Ehrmann do not attempt to fix responsibility for the change. Some of the jurors believed that the bandits had done the reloading with buckshot, and for that reason joined in a verdict of guilty with intent to murder.34 But it should be noted that Vanzetti was never sentenced for assault with intent to mur­ der, so that if the effect of the tampering was limited to this charge (a condition difficult of realization), the tampering did not result in prejudice to Vanzetti. Mr. Ehrmann before the Governor's Advisory Committee said that he approached the "subject of tam­ pering with exhibits with no great presumption in favor of the police, particularly where there is a lot of public excitement and determination to win a case at all costs." 35 But on the material relating to the Plymouth trial alone, there is not a scintilla of evi­ dence that the police reloaded these shells. 3. Jimmie Mede's Experience. On May 28, 1927, Mr. Thomp­ son urged Governor Fuller to see Mr. Thomas H. Doyle, who had earlier assisted Mr. Moore in securing data and who "probably has more knowledge of the witnesses, the attitude of the under­ world, the bias of the jury and other important facts, than any­ body in the world." 38 The Governor saw Mr. Doyle and said he would like to see Mede concerning whose statements Doyle had spoken to him. An appointment for July 6 was postponed by the Governor. Doyle secured another appointment for July 11, and on July 8 Mr. Thompson wrote the Governor detailing matters which ought to be used in connection with the interview of Doyle: (a) In conversations in January, February, and March, 1922, be­ tween Moore and Mede, then in State's prison, Mede said he knew who planned and committed the Bridgewater crime, but would not disclose the information unless he was assured that it would not injure his intended application for parole but would help it. (b) On February 2, 1922, Moore had written to Governor Cox that Mede had been advised from two separate sources not to disclose any information. (c) On the same date the Italian Con­ sul, Ferrante, had seen and written to Governor Cox and ex-

52

THE LEGACY OF SACCO AND VANZETTI

plained Mede's situation. (d) Under date of February 6 Governor Cox wrote Moore that action by the Parole Board would depend solely upon the merits of Mede's case, that Mede's application for a pardon was denied and that Mede was free to tell the whole truth, (e) In 1923, after Mede's release from prison, he had dis­ closed to Doyle who planned and committed the Bridgewater job: Mede was one of the planners but did not participate in it. San Marco (alias Joe Knapp) and Silva (alias Martini) were planners and participants. Doyle could get from Mede no reliable informa­ tion as to the identity of the two others who took part in the at­ tempted holdup. On July 12 the Governor met with Doyle and Mede. They im­ mediately thereafter reported to Mr. Thompson "that Mede made a full disclosure to the Governor of his connection with the Bridgewater case; but that before he gave up his information he insisted upon obtaining from the Governor, and did obtain from him, an assurance that his confession would not be communicated to the State Police in any way that would injure him [Mede], and that his athletic license would not be revoked"; and that "at the end of the interview the Governor immediately called in Captain Blye of the State Police, told Mede to repeat his confession to him alone, and indicated hostility to Mede by words, tone and man­ ner." 37 Mede declined to talk with Blye alone, and could not be induced to repeat his story before the Advisory Committee. Mr. Thompson secured for Mede the services "of one of the most reputable" members of the Boston Bar.38 Later Mede re­ tained Max L. Glazer. Glazer, Joseph Santosuosso, an Italian law­ yer, and Mede on August 3, 1927, went to the State Police Depart­ ment in the State House and told Lieutenant Ferrari that Mede desired to make a statement concerning his knowledge of the Sacco-Vanzetti case including the attempted robbery at Bridgewater. According to Santosuosso's story, Ferrari took them to Cap­ tain Blye, who said they ought to go to the Governor. Santosuosso explained that Mede had already made a confidential statement to the Governor but that he no longer felt it necessary to keep the matter confidential and desired to make the statement to Cap­ tain Blye who could then decide what to do about it. Blye never­ theless refused to hear Mede.39 4. The American Express Receipt. At the trial Mrs. Fortini testified that about 9:30 A.M. on December 22 or 23, 1919, a bar-

THE BRXDGEWATER ASSAULT*. THE PLYMOUTH TRIAL

53

rel of eels was delivered by express to Vanzetti at her home. Vanzetti was away when the expressman first called and she had no money. "After one Monday Vanzetti and the express came back." 40 On the night of the 23rd Vanzetti worked till midnight in the kitchen preparing the fish.41 Governor Fuller in examining the record noted that there was no documentary evidence that Vanzetti had received a shipment of eels. On July 31, 1927, Mr. Ehrmann turned over to Governor Fuller's secretary the original 1919 American Express Receipt Book of Corso 8c Canizzo Co., of Boston, containing an American Express receipt showing receipt by the American Express Company at Boston on December 20, 1919, of one barrel of eels for delivery C.O.D. to B. Vanzetti at Plymouth. December 20 fell on Saturday. If Mrs. Fortini's "After one Monday" meant "Tuesday," this receipt, coming from an unimpeachable source, would have furnished strong corrobora­ tion of her story of Vanzetti's work on the 23rd and of the testi­ mony of the numerous witnesses that the delivery occurred on the 24th, the day of the attempted holdup at Bridgewater. Assur­ ance was given that the book would be brought to the attention of the Governor and of the Advisory Committee.42 No mention of this matter is contained in the Governor's decision or in the report of the Advisory Committee. 5. The Silva Confession. In January, 1928, Silas Bent, free­ lance writer, and Jack Callahan, newspaperman and reformed bank burglar, were discussing the Sacco-Vanzetti case. Callahan explained that the Bridgewater attempt had been made by inex­ perienced bunglers but the Braintree robbery was a real profes­ sional job. All the underworld believed that the defendants "had been given the works. Every crook . . . said: 'Those two poor wops were framed.' " As a result of this conversation Callahan was employed by the Outlook "to dig the story out of the under­ world." In the course of his investigation he met Jimmy Mede. Mede said that the Bridgewater job was suggested to him in 1917 by Frank Silva; and that he, Silva, and San Marco went to Bridgewater to plan the robbery. Shortly thereafter Mede was arrested for another crime and sentenced to prison. While he was there San Marco arrived under life sentence for homicide and told him about the Bridgewater holdup, naming himself, Silva and one Oates as participants but not mentioning one Doggy Bruno (later named by Silva). After some difficulty Callahan succeeded in

54

THE LEGACY OF SACCO AND VANZETTI

meeting Silva, gaining his confidence, and inducing him to go to New York and see Silas Bent and the publisher of the Outlook. 43 Silva finally agreed to make an affidavit, with the understanding that if the facts therein stated were susceptible of proof and borne out by material already in possession of the Outlook, he would be paid a sum of money.44 After SiIva had made his affidavit on August 10, 1928, and answered questions, Silva, Mede, Bent, and Callahan drove over the route which Silva said that he and his companions had taken. Silva showed familiarity with the physical conditions in Bridgewater and Needham as they were in 1919, though some marked changes had taken place between 1919 and 1928. He convinced Bent, Callahan, and the Outlook that he told the truth. His ac­ count differs in some details from that given by witnesses at the trial. It is inconsistent with the testimony of Mrs. Brooks and of Casey; it puts the streetcar behind the truck as it came down Broad Street; it places two men in the rear of the truck and only one on the seat; it has the bandit car back out of Hale Street almost to the center of Broad Street; it has all four bandits wear­ ing overcoats and soft hats pulled down over their eyes and coat collars turned up; it tells of Silva's theft of the automobile plates from the garage in Needham but not of the preceding attempt to borrow them. Silva says that Doggy Bruno was the man with the sawed-off shotgun. His picture is given in the Outlook and Inde­ pendent.45 It tallies with the description given by some witnesses as to mustache and hair, but if it is a fair likeness, no one would be likely to mistake Bruno for Vanzetti. These discrepancies may have little importance. If Silva had had Access to the record of the trial he would have found plenty of testimony as to the relative positions of the streetcar and the truck, the location of the bandit car, and the dress and actions of the several participants including the occupants of the truck. On the other hand, in the time which it took to persuade him to speak he might have learned a great deal about the pertinent physical facts and the general story of the holdup through Mede and those with whom Mede had talked. He was acting not from altruistic motives but for a money reward. His story was published in the Outlook and Independent of October 31, 1928. It did not go unchallenged. San Marco wrote Commissioner Sanford Bates that he had had no part in the Bridgewater holdup and that he was at work on the day it oc-

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

55

curred. This letter was printed in the Boston Herald of Novem­ ber 3, 1928. On January 13, 1929, the Herald published an article under the name of Fred R. Brine in which were set out statements signed by Jacob Lubin and Paul Martini (Silva) with a picture of Silva. Assistant Attorney General Hurwitz, having learned that Moore had visited Lubin and Silva at the Atlanta Penitentiary, had gone to see them at Athens, Georgia, in December, 1922, and secured the statements from them. Lubin asserted that one Jocomo, one Witner, and Moore had seen Lubin and Silva about April 18, 1922. Witner, by testifying for the prosecution, had caused the conviction of Lubin and Silva and had escaped with a light sentence. Lubin told Mr. Hurwitz of several interviews of Jocomo, Witner, and Moore with Lubin and Silva in the presence of the warden or deputy-warden. By promises to secure the re­ lease of Lubin and Silva and to make payments of substantial sums of money and by assurances that both United States and state officials wanted Sacco and Vanzetti to have a new trial at all costs, Moore and Witner secured from Silva a note addressed to Mede and San Marco saying that they might confess the Bridgewater attempt and implicate Silva in it. Moore said he knew Silva had had nothing to do with the attempted holdup. Lubin asserted that he informed William J. Burns of what had taken place, and Burns sent one of his men, to whom Lubin and Silva "repeated the whole story." Silva affirmed to Mr. Hurwitz the correctness of Lubin's statement and declared that he had never been in Bridgewater, that Moore suggested the date of the holdup, and that Witner showed him a map of both Bridgewater and Braintree. Although the Commonwealth had these statements in December, 1922, it did not make them public or disclose them to the defense. It is, of course, possible if not highly probable that the Governor was ad­ vised of them either before or after Mede made his confession to the Governor. CONCLUSIONS

The available record shows a rather long but ordinary trial for assault with intent to rob and murder, with an unusual number of alibi witnesses. The evidence of consciousness of guilt is insub­ stantial; and nothing more than a slight basis for speculation ap­ pears as to the identity of any of the other three participants. The defendant's failure to take the stand coupled with the impeach­ ment of his alibi witnesses explains and justifies the verdict.

56

THE LEGACY OF SACCO AND VANZETTI

There is nothing to support a charge of unfairness or prejudice on the part of the trial judge. No testimony as to the defendant's political or economic views was admitted. In the prosecutor's questions to several witnesses regarding speeches by and discus­ sions with Vanzetti, there may have been some insinuations, but there was nothing more. There is much tending to show that the case was not carefully prepared or closely tried for the defendant; but without a com­ plete record of what occurred in the conferences at the bench, of counsel's actual examination of the exhibits, of counsel's efforts to have competent interpreters for the witnesses, of the real rea­ sons why Vanzetti did not testify, it is impossible to form a valid judgment as to counsel's diligence and efficiency. It is fairly obvious that the proposed bill of exceptions revealed no reversible error. The action of the jurors in opening the shells in the jury room was misconduct. Their affidavits are to the effect that the discovery thereby made influenced their verdict only upon the issue of intent to murder. Since Vanzetti was sentenced only on the ver­ dict of guilty of assault with intent to rob, the misconduct would probably have been held not sufficient to justify a new trial. What an investigation would reveal as to the condition of these shells at various pertinent times, it is useless to conjecture. Mede and Silva agree that they planned the Bridgewater holdup in 1917. Silva's story of the execution of the plan in 1919 is more plausible than the Commonwealth's theory, because nothing has yet been discovered which even tends to connect any associate of Vanzetti with the Bridgewater holdup, and the participation in such a crime is entirely out of harmony with everything else that has been disclosed concerning his character and conduct. Both Mede and Silva were convicts, and Silva's associates were crimi­ nals. Even crooks do not ordinarily falsely confess the commission of an offense for which another has been sentenced to fifteen years' imprisonment. Silva's familiarity with the physical surroundings is clear. His account of the encounter is fairly consistent with that of other eyewitnesses; if given from the witness box, it would justify a conviction of himself and his alleged companions. It must be remembered, however, that neither Mede nor Silva was subject to cross-examination, and Silva's earlier story, likewise not subject to cross-examination, reveals Mede and himself as willing to frame a defense for Vanzetti by admitting their guilt of the Bridgewater

THE BRIDGEWATER ASSAULT: THE PLYMOUTH TRIAL

57

crime, in return for money and other favors. Mede undoubtedly had contacts through Doyle with Moore and others interested in the defense and could have coached Silva as to matters brought out at the trial. They might well have driven over the route and located the pertinent physical objects before Silva gave his sworn statement to the Outlook. Participants in such an adventure are not ordinarily men with a high regard for truth. Anyone would be amply justified in concluding that it is impossible to tell whether Silva was telling the truth to Hurwitz in December, 1922, or to the Outlook representatives at the time of their investigation in August, 1928, or was lying on both occasions. Such a conclusion might or might not carry also a reasonable doubt as to Vanzetti's guilt.

Chapter III

THE DEDHAM TRIAL AT THE close of the preliminary hearing of Vanzetti at Brockton on the Bridgewater holdup the prosecution informed Judge Thorndike that the Commonwealth had witnesses who would positively identify Vanzetti in connection with the murders at South Braintree. About a week later, on May 26, a preliminary hearing on the murder charge was held at Quincy at which Sacco alone appears to have been the accused. No record of this hearing has been published, but counsel at the trial used transcripts of the testimony then given, referring to it as the testimony at Quincy or in the lower court. On September 11, indictments were returned against Sacco and Vanzetti charging each of them with the murder of Alessandro Berardelli and the murder of Frederick A. Parmenter on April 15, 1920. On September 28 they were arraigned and pleaded not guilty. On February 5, 1921, the case was set for trial on March 7. At the request of the defendants the trial was postponed until May 31. On that date it began at Dedham. The formal appearances for the defendants were Fred H. Moore and William J. Callahan for Sacco, and Jeremiah J. and Thomas F. McAnarney for Vanzetti. It is commonly believed that Moore was chief counsel for the defendants. He was retained in Novem­ ber, 1920, by a group of persons who had raised funds to finance the defense. He was a California lawyer with a reputation for vig­ orously defending radicals and workers. He had had some previ­ ous experience in Massachusetts, for he was credited with having secured the acquittal of two men charged with murder in connec­ tion with a strike in Lawrence. Callahan had been one of Sacco's attorneys at the preliminary hearing in Quincy. The brothers McAnarney were well-known lawyers of Norfolk County; Thomas was a judge of an inferior court, but was entitled to practice before the Superior Court. District Attorney Katzmann was in charge of the prosecution, assisted chiefly by Harold P. Williams. Assistant District Attorneys William F. Kane and George E. Adams also appeared for the Com­ monwealth, but took no part in presenting the evidence.

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59

Judge Webster Thayer occupied the bench. He had presided at Vanzetti's trial in Plymouth, and had imposed a severe sentence upon him, after the conviction for attempted robbery. Joseph Ross was the interpreter. The first step after the opening proclamation was the crier's proclamation to the 500 men who had been summoned as jurors, after which Judge Thayer explained to them their rights and duties as to jury service and their obligation to answer questions put to them by him touching their qualifications to sit as jurors in this case. Judge Thayer then informed each of the defendants of his privilege to challenge 44 of the jurors peremptorily and as many more as he had good cause to challenge. Of the 500 jurors examined by the judge only 7 were accepted. Each side then had 29 peremptory challenges left. The record shows no exception by either defendant to any ruling made by the judge in the selection of jurors to this point. Since 5 more jurors were needed, Judge Thayer directed the sheriff to summon "from the bystanders or from the County at large" persons who were "qualified and liable to be drawn as jurors" to the number of 200, and to order them to report the next morning at the opening of court. To the man­ ner in which these additional prospective jurors were summoned the defendants made objections, which were promptly overruled. During the sessions on the fourth day of the trial the jury was com­ pleted; and the jurors were sworn shortly after 1:35 o'clock on the morning of June 4, 1921. The fifth day of the trial was spent by the jurors in taking a view of the scene of the crime and the surrounding territory in which occurred events relevant to the trial. They rode over the route which the bandit car was alleged to have traveled, went to the Manley woods where it was found, and visited the shed where Boda had kept his Overland car. This shed was described to them as a part of the Coacci house or premises. (Although it did not appear at the trial, the fact is that Coacci was deported on account of his radical affiliations shortly after the South Braintree mur­ ders.) They were shown the garage to which Simon Johnson had taken Boda's car and the house of Simon Johnson in front of which Sacco, Vanzetti, Boda, and Orciani had met on the night of May 5, 1920. The buildings of Slater and Morrill and other physical objects at and near the scene of the shooting were pointed out to them. All this was done with the consent of the defendants and of the prosecution on order of Judge Thayer, for the purpose

6o

THE LEGACY OF SACCO AND VANZETTI

of enabling the jurors to understand the testimony thereafter to be offered. Representatives of the defense and of the prosecution accompanied the jurors, but the defendants remained at Dedham. On the sixth day Mr. Williams made the opening statement for the Commonwealth, and the taking of testimony began. SUMMARY OF THE EVIDENCE RELATING TO SACCO

To fasten the crime upon Sacco the state relied upon (i) evi­ dence of eyewitnesses of scenes preceding, attending, and follow­ ing the killing, (2) a cap found near Berardelli's body, (3) a bullet taken from Berardelli's body and a shell picked up near where the body lay, and (4) conduct of Sacco indicating a consciousness of guilt. Eyewitnesses before the Shooting. The state offered sixteen wit­ nesses to identify Sacco, three of whom testified to events prior to the shooting, and thirteen of whom described what they saw at or about the time of the tragedy. 1. Mrs. Lola R. Andrews, who was a woman of all work, was in South Braintree on the morning of April 15, seeking employ­ ment in a shoe factory. Sometime after eleven o'clock she saw two men near an automobile which was parked not far from the Slater and Morrill factory. One was light, thin, sickly. The other was of dark complexion, medium height, smooth face, wearing dark clothing. As Mrs. Andrews passed on her way to the Slater and Morrill factory, the second man was bending over the hood of the car. When she came back from the Slater and Morrill factory on her way to the shoe factory of Rice and Hutchins, he had his head and shoulders underneath the car. She spoke to him, and as he was getting out from under the car, she asked him how to get into the factory of Rice and Hutchins. The other man was then near the rear of the automobile. The dark man, she says, was Sacco. Under cross-examination she reluctantly admitted that she had failed to recognize a photograph of Sacco. Her companion on April 15, a Mrs. Julia Campbell, flatly contradicted her and said that the only person on the street to whom Mrs. Andrews spoke was a man dressed in khaki who was not under the automobile, although inquiry had been made at the Slater and Morrill office. George W. Fay, a police officer, and A. N. Labrecque, a newspaper

THE DEDHAM TRIAL

6l

reporter, testified that Mrs. Andrews had told them that she had not seen the face of either man at South Braintree and could not identify either of them. Harry Kurlansky swore that Mrs. Andrews told him that the government was attempting to get her to identify the men but that she had not seen them and could not recognize them. Lena Allen testified that the reputation of Mrs. Andrews for veracity was bad. To rehabilitate Mrs. Andrews, Mrs. Mary Gaines testified to a prior consistent statement by Mrs. Andrews but she added this detail: "She taps this man on the shoulder, and asks him etc." 1 2. W. S. Tracy saw two men in front of a drugstore on Pearl Street, South Braintree, between 11:35 an^ 11:40 o'clock on the morning of April 15. He drove past them three times. He noticed them because they were leaning against a building which he owned. He thought they were waiting for a streetcar. Both were dressed respectably. One was a little darker than the other. Both wore dark soft hats. One of them was Sacco. "While I wouldn't be positive, I would say to the best of my recollection that was the man. . . . To the best of my opinion, he is the man." 2 He ad­ mitted there was nothing unusual to attract his attention to the men aside from the fact that one of them was leaning against his building. 3. W. J. Heron saw two Italians in the South Braintree station between 12:30 and 1:00 o'clock on the afternoon of April 15. They acted nervous. One was about five feet six inches tall and weighed about one hundred forty-five pounds. He was "pretty sure" that Sacco was that man. There is nothing disclosed in either his direct or cross-examination to tie the date to the incident. Though he heard of the shooting on the same day there is nothing to show that he then associated the sight of these men with the shooting. He refused to talk with a representative of the defense because representatives of the state saw him first, because it would not help the defense, and because he didn't have to. Finally, to the question, "You say, out of the kindness of your heart you didn't want to tell him, is that so?" he answered, "Yes, sir." 3 Eyewitnesses of the Shooting. Of the thirteen, eight witnessed the actual shooting. Of these, Annie Nichols and H. C. Colbert (the fourth and fifth among the identifying witnesses offered by the prosecution) were too far away to give more accurate descrip­ tions of the shooters than "short low-sized men," "medium stout

62

THE LEGACY OF SACCO AND VANZETTI

chaps." They expressly stated that they could not identify them. Others who saw the shooting were: 6. J. F. Bostock, while proceeding west on Pearl Street, passed two men who were leaning on a fence near Rice and Hutchins' factory. Almost immediately thereafter he heard pistol shots, and he saw the encounter between the robbers and their victims. The bandits were dressed in "sort of" black clothes with dark caps; they were fellows of medium build, they appeared to be foreign­ ers, Italians. He thought, as he passed them, that they were Italian fruit-peddlers. They had dark complexions, smooth faces; one was swarthy. As the bandit car came up the street one of the occu­ pants was leaning out and shooting. He does not know whether either of the defendants was one of these men. He could not identify either defendant at the Brockton police station or at the trial. 7. L. L. Wade saw the tragedy from a distance of seventy-one to seventy-three paces. The man who shot at Berardelli was short, black-haired, bareheaded, would weigh one hundred forty pounds, was twenty-six or twenty-seven years old, wore a gray shirt, needed a shave. He was "kind of bald" on the left side. His hair, which was cut with a "feather edge" behind, was blown back from his face. About a month after the shooting Wade thought he had no doubt that Sacco was the man. At the hearing in Quincy a short time later he had doubts, and would not say posi­ tively that Sacco was the man. At the trial he had doubts. About four weeks before giving his testimony he saw in a barber shop on Pearl Street a man who resembled the man who shot Berardelli. As he left it on direct examination: "Well, I ain't sure now. I have a little doubt. . . . Well, my best judgment is this: If I have a doubt, I don't think he is the man." 4 [At the inquest on April 17, 1920, he testified that he had on the previous day identi­ fied a picture shown him by the police as that of the shooter. This was not mentioned at the trial.] 8. J. E. McGlone saw the encounter. It took place directly in front of him. The bandits were foreigners, Italians, of dark com­ plexion, ages twenty-two to twenty-five years, wore dark suits and hats or caps. He did not get a good enough look at them to be able to identify them. He could not say whether either defendant was or was not one of the bandits. 9. E. C. Langlois saw the shooting from a window on the second floor of the factory of Rice and Hutchins. Both bandits were short

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63

and dark, five feet eight inches or nine inches tall, weighing one hundred forty to one hundred forty-five pounds. They had curly or wavy hair, which was blown backward. They were stout and full-chested. He was not able to identify the men at the Brockton police station and would not be able to identify either of them if he should see him again. 10. Louis Pelser saw what he saw from a window in the factory of Rice and Hutchins. Through a space about four inches wide between the bottom of the window and the window sill he saw Berardelli lying on his side. After raising the window he saw a bandit fire a bullet into Berardelli. This bandit wore dark-green pants and an army shirt with the collar turned up and pinned. He had wavy hair pushed back, very strong wiry hair, very dark. He would not say Sacco is the man, but "he is the dead image of the man I seen." 5 This bandit flashed a gun and put two bullets right over the window where Pelser was standing. PeIser took the number of the car, 49783. [The number plates, 49783, were stolen about January 6, /1920, from a Ford car belonging to Warren H. Ellis, of Needham. They were not on the car found in the Manley woods, identified as the bandit car.] On cross-examination he admitted that he had told a represent­ ative of the defendant that he did not see the shooting, that it was all over when he opened the window, that he did not see the men who did the shooting, that he took the number of the automobile and that was all he could do. "They were shooting while I was at the window, and I got under the bench, and that is all I seen of them." 6 He gave the number of the automobile to the police. All he told the representatives of the prosecution was about the num­ ber. On May 6 and 7 he told them, "I did not see enough to iden­ tify anybody." ? The reason he lied to defendant's representative, he said, was that he did not want to have to go to court. Three of his fellow workmen, Peter McCullum, William Bren­ ner, and Dominic Constantino, gave evidence tending strongly to show that Pelser's prior statements to representatives of the de­ fendants and of the state were the truth. McCullum was the man to open the window. He shouted "Duck!" and instantly closed the window. Pelser ducked immediately and lay on the floor until the others also got up. Other Identifying Witnesses. The remaining six did not see the killing.

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THE LEGACY OF SACCO AND VANZETTI

11. Hans Behrsin drove past two men while they were sitting upon the fence. One wore an army shirt, both had caps on, both had light complexions. He heard the shooting, and later saw the bandit car, but he could not recognize any of its occupants. He would not be able to identify any of the men he saw if he should see them again. 12. M. E. Carrigan saw the bandit car with a man crouched on the front seat, leaning out with a weapon. He looked like a for­ eigner, had black hair, rather long, blown back by the wind. He looked like an Italian, wore no hat, wore "kind of blue" garments. Carrigan could not identify either defendant as the man. 13. L. De Beradinis heard the shooting. He was at the door of his shop at the corner of Pearl Street and Railroad Avenue as the bandit car went by. A man on the front seat, leaning out of the car, pointed a pistol at him. This man had a long face, was "awful white," had light hair combed in the back, was a thin fellow of light weight. He had seen Sacco at Brockton. There was a lot of difference between him and Sacco. He had told Mr. Williams that the man he saw on Pearl Street the day of the murder looked like Sacco; and he seemed to admit that the man who pointed the pistol at him looked like Sacco. On cross-examination he said he was sure that this man was a light thin-haired man, and Sacco was dark. 14. Mary E. Splaine, a bookkeeper, saw the bandit car from a second-story window of Hampton House, the western or No. 1 Slater and Morrill factory, some sixty feet from the street, while it was covering a distance of thirty-five to sixty feet. It was going about eighteen miles an hour. A man was standing directly back of the front seat and leaning out of the car; he had no overcoat on and was bareheaded. He would weigh one hundred forty to one hundred forty-five pounds. He was muscular, active looking, with a clear-cut face, high forehead,'dark eyebrows, greenish-white complexion, long hair, brushed back. He wore a gray shirt. She was positive that Sacco was that man. On cross-examination she admitted that shortly after the mur­ der she picked out a rogues'-gallery photograph of another pris­ oner as bearing a striking resemblance to the man "in some features." Before the preliminary hearing at Quincy she and the next witness were taken to see Sacco while he was under arrest. Sacco assumed attitudes and positions similar to those of the bandit she had seen. She did not pick him out from a number of

THE DEDHAM TRIAL

65

prisoners or a group of persons. He and Vanzetti were brought in alone. At first she denied that at the hearing in the Quincy court she had testified: "I will not swear positively he is the man." 8 After a consultation with the assistant district attorney at a recess, how­ ever, she changed her testimony and made the admission. At the Quincy court she had also said, "I don't think my opportunity afforded me the right to say he is the man." 9 Without having seen Sacco in the interim she was at the trial positive that Sacco was the man. "From the observation I had of him in the Quincy Court and the comparison of the man I saw in the machine, on reflection I was sure he was the same man." 10 15. Frances J. Devlin, from the same room as the previous wit­ ness, saw a man leaning out of the bandit car. She had him in view while the car was traveling some two hundred feet. He was a dark man, his hair seemed to be grown away from the temples, and it was blown back. He had clear features, was rather good looking, was a fairly thick-set man, and had a white complexion. In the Quincy court she had testified that she had the car, and inferentially the man, in view while the car traveled from forty to sixty feet. She was then asked, "Do you say positively he is the man?" She replied, "I don't say positively." 11 She also testified that she got or tried to get the number of the car while the front end of it was in view, but she could not be sure about it. Her explanation for her answer in the Quincy court was, "I didn't want to commit myself." 12 Another explanation, which on motion of defendant's counsel was stricken, was: "At the time there I had in my own mind that he was the man, but on account of the immensity of the crime and everything, I hated to say right out and out. I knew he was the man and still I didn't want to say knowing as I knew it would be a deliberate lie, according to my own mind, but still I hated to say right out and out, so I just put it that way." 13 x6. Carlos E. Goodridge, while in a poolroom, heard the shoot­ ing. He went out on the street and saw the bandit car. A fellow on the front seat of the car or just back of it leaning out "poked a gun over towards" him. Goodridge ran back into the poolroom. This fellow had a dark complexion, dark hair, "kind of peculiar face that came down pointed." He had no hat on, and his hair was blown up. Sacco was that man. Goodridge was impeached by H. Arrogni, P. Magazu, A. Manganio, and N. Damato, to all of whom he had made prior contra-

66

THE LEGACY OF SACCO AND VANZETTI

dictory statements. Manganio, his former employer, also testified that his reputation for veracity was bad. The defense also made an offer to discredit Goodridge by showing that criminal proceedings were pending against him in the same court, but this offer was re­ jected by Judge Thayer, apparently on the ground that the Massa­ chusetts practice makes inadmissible mere charges of criminal conduct against him. Before Judge Thayer made this ruling there was a conference at the bench, but no record exists of what was said by the judge or by counsel. In this connection should be mentioned the testimony of Austin C. Cole, who swore, both at this trial and at the previous trial of Vanzetti, that Sacco and Vanzetti boarded a streetcar, on which he was then a conductor, on the night of April 14 or 15 at Sunset Avenue near Bridgewater. The defense met the prosecution's identification evidence by the testimony of seventeen eyewitnesses. Two of these saw the occupants of the murder car before the shooting and said that neither defendant was visible; thirteen saw the shooting or saw the car immediately thereafter and swore that Sacco was not on the front seat or leaning out of the car or engaged in the shooting; two were willing to say only that they could not tell whether Sacco was there or not. Most of them were vigorously cross-examined, and a few of them did not stand up well against the cross-examination. The testimony of Mrs. Liscomb seems particularly impressive on paper. From a window of the Rice and Hutchins Factory she saw the two murdered men lying on the ground and "a short dark man standing on the ground facing me, with his head up holding a revolver in his hands." She got a clear view of his features and his face. "I will always remember his face." 14 She "sort of fainted away." That man was neither Sacco nor Vanzetti. The cross-exami­ nation did not shake her in any material point, though it was shown that she was mistaken in her recollection as to the time when she saw Orciani when he was under arrest at the South Braintree town hall. In addition Sacco introduced eight alibi witnesses, one of whom gave his testimony by deposition. It must be said that most of their testimony as to their respective transactions with Sacco is very persuasive, but that in most instances there seems little ra-

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tional connection between those transactions and the events by which they purport to tie them to the fatal date of April 15, 1920. The Cap. F. L. Loring picked up a cap which was lying some eighteen inches from Berardelli's body shortly after the shooting. After keeping it about an hour he delivered it to Mr. Fraher, Superintendent of the Slater and Morrill factories. He identified Exhibit 29 as the cap. It was shown not to have belonged to Berardelli or Parmenter. There was, however, a crowd of people about and around the scene before Loring picked up the cap. G. T. Kelley, Sacco's employer, testified that Exhibit 29 was in color and general appearance like a cap he had seen hanging on a nail near Sacco's place of work in the factory. Later he said Ex­ hibit 29 did not resemble that cap so much as did Exhibit 43 which was admitted to be Sacco's cap. He said he had told the police in effect that Exhibit 29 did answer his description of Sacco's cap, but on the stand he insisted that Exhibit 29 was too dark and Exhibit 43 too light. Sacco denied that Exhibit 29 was his cap. Both he and Mrs. Sacco insisted that he had never had a cap of that type, which had fur-lined ear laps. Sacco tried on before the jury both Exhibit 29 and Exhibit 43. He insisted that Exhibit 29 was too tight. The prosecuting attorney argued that both fitted Sacco equally well, and by his question attempted to induce Sacco to say so. The lining of Exhibit 29 was torn. There is an intimation in the examination of Kelley that this was caused by the nail on which Sacco conceded that he hung his cap at the factory, and Judge Thayer asserted that the prosecutor so argued.15 [It seems now to be established that the tear was made by a police officer while seeking to find some identifying mark in the cap. This was first brought out before the Advisory Committee.] The Fatal Bullet and the Shell. It was undisputed that there were found in the body of Berardelli a number of bullets all but one of which had a right twist. That one, Bullet No. 3, received in evidence as Exhibit 18, had a left twist. From measurements of the rifling marks on the right-twist bullets Captain Proctor was of the opinion that they were fired from a Savage Automatic pistol. Bullet No. 3 was, in his opinion, consistent with having been fired from Sacco's pistol. This was the fatal bullet. He also found the appearance of a Winchester shell, picked up at the

68

THE LEGACY OF SACCO AND VANZETTI

scene of the shooting, consistent with its having been fired in the same make of weapon. Captain Van Amburgh was inclined to believe that bullet No. 3 was fired from Sacco's pistol but gave no opinion as to whether the Winchester shell was fired in it. Burns and Fitzgerald, for the defense, were of the opinion that the fatal bullet had not been shot from Sacco's pistol, and disagreed with Proctor and Van Amburgh as to the significance of the markings on the Win­ chester shell. This expert testimony is considered in detail below. Consciousness of Guilt. On the night of May 5, 1920, Sacco, Vanzetti, and Orciani were on a public street near a motorcycle not far from the Simon Johnson house in West Bridgewater and Boda was at the door of the house talking to Mr. Johnson. Sacco's testimony is to the effect that during the afternoon he, Vanzetti, Orciani, and Boda, while at Sacco's home, had made arrangements to meet in the evening and to get Boda's automobile for the pur­ pose of collecting socialistic literature so that it would not be found in the houses of their friends. Accordingly Sacco and Van­ zetti boarded an electric car which passed Sacco's house about 7:20 P.M. They left this car at Main Street, Brockton. After some delay, during which they had coffee at a lunch cart, they took a streetcar for Bridgewater and got off at Elm Square, West Bridgewater. After waiting there for a few minutes they started to walk toward Bridgewater. After walking for ten or fifteen minutes they returned to Elm Square. They were puzzled at not finding any­ body, and after waiting a short time started to walk along the road back toward Brockton. After five to seven minutes they saw the light of a motorcycle on the street and found Orciani beside it. They asked whether Boda had got his car. Boda was then en­ gaged in talking with Johnson at the door of Johnson's house. On coming to the motorcycle Boda said they could not get the car because it had no 1920 license plates. Thereupon Boda and Orciani rode away, and Sacco and Vanzetti walked along the street toward a car stop. While they were standing near the motorcycle, a woman, apparently Mrs. Johnson, came along the road from the direction of Brockton and entered the Johnson house. Mrs. Johnson's story varies from this in a few particulars. About 9:20 P.M., so she says, she heard a knock at her door. After a con­ versation with her husband she went to the door. At first she saw no one, then she noticed, some distance away near the bridge, a

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man coming toward her. She told that man that her husband would be right out. At that time there were two other men com­ ing over the bridge from the direction of Elm Square. The first man called out, "His wife." The two others kept walking along the car track on the right-hand side of the road toward Brockton and she walked on the left in the same direction. She entered the neighboring house, which was about sixty feet distant from her own, and telephoned to the West Bridgewater police. [This was done because the police had asked local garage owners to report any questionable attempt by foreigners to get hold of a car.] While in the neighboring house she saw the motorcycle light flashing back and forth. As she came out and was returning to her home the same two men walked back along the car track. She saw the two men stop at the motorcycle. Sacco was one of those men. She went into the house and did not see what occurred outside there­ after. At the time of his arrest Sacco was carrying in the waistband •of his trousers a Colt automatic pistol of .32 caliber loaded with nine cartridges; he had twenty-three extra cartridges in his hip pocket. He testified that when his wife was cleaning house, on the afternoon of May 5, preparatory to the family's imminent return to Italy, she called his attention to the pistol and cartridges. He told her that he and Vanzetti would "go to shoot in the woods." He put the cartridges in his pocket and the pistol in the waistband of his trousers. He and Vanzetti started to talk. At half past four Orciani and Boda came over. "So we started an argument, and I forgot about to go in the woods shooting, so it was still left in my pocket." 18 The gun was in his waistband when he sat down to supper. It was there when he went out to take the streetcar. He had forgotten about it, and when he left the house on the evening of May 5 he was not aware that he had the gun or the cartridges. He carried the pistol in his waistband rather than in his pocket because there it was not so easily detected by the police. He usu­ ally carried it when he went to Boston and expected to be late in coming home. Officer Connolly swore that when Sacco was in the police auto­ mobile "on the way up to the station, Sacco reached his hand to put under his overcoat and I told him to keep his hand outside of his clothes and on his lap." He moved his hand to put it under his overcoat, "just about the stomach there, across his waistband, and I says to him, 'Have you got a gun there?' He says 'No.' He

7O

THE LEGACY OF SACCO AND VANZETTI

says Ί ain't got no gun.' 'Well,' I says, 'keep your hands outside of your clothes.' We went along a little further and he done the same thing. I gets up on my knees on the front seat and I reaches over and I puts my hand under his coat, but I did not see any gun. 'Now,' I says, 'Mister, if you put your hand in there again, you are going to get into trouble.' He says, Ί don't want no trou­ ble.' " 17 M. A. Spear, who drove the police automobile, testified that on the way to the station he heard Officer Snow, who was in the back seat with Sacco and Vanzetti, tell Sacco to keep his hands where he could see them, that Officer Connolly, who was sitting on the front seat, got up and reached back; and that he heard Sacco say to Snow, "You need not be afraid of me." 18 Sacco was not questioned about the incident in the police auto­ mobile. He denied that either he or Vanzetti attempted to reach for or pull a gun in the streetcar. Vanzetti, as appears later, vig­ orously repudiated Connolly's testimony as to what happened on the streetcar on which the arrest occurred, but he was not asked about the incident in the police automobile.* When arrested, both defendants falsified to the police officers concerning their errand in West Bridgewater. On the following day Sacco was questioned by the District Attorney and incorrectly stated that he was at work on April 15. He made several other inaccurate statements, as he claims inadvertently; but he admitted that he told intentional falsehoods as to (1) his reasons for being in Bridgewater; (2) the place of purchase of cartridges found upon him; (3) his non-recognition of Mrs. Johnson; (4) his previous visit at Orciani's; (5) his acquaintance with Boda; (6) acquaint­ ance of Vanzetti with Orciani; (7) his reasons for having in his possession a form of notice for a meeting of radicals; and (8) his former employment in South Braintree. He explained most of these statements by his desire to prevent the District Attorney from getting any information which would serve in any manner as clues against radicals or would disclose Sacco's own guilt as a slacker. He had no idea he was suspected of the South Braintree murder and the District Attorney did not so inform him, although he did ask him if he knew Alessandro Berardelli. In this connec­ tion the cross-examiner secured his admission that he had given a false name to the dealer from whom he purchased the Colt re* For testimony as to events on the streetcar by a prosecution witness, see below, page 76.

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volver, had falsely told the court he did not know a license to carry firearms was required by law, and that he had falsely told Mr. Kelley, his employer, that the consul's office was so crowded on the morning of April 15 that he could not attend to his passport in time to get back to his work in the afternoon. It was undisputed that Sacco and his associates were acquainted with the fact that raids had been conducted against socialists and other radicals in New York and Chicago by representatives of the United States Government, that Salsedo and Elia, two anarchists, had been arrested in New York, that Sacco and his associates had contributed to a defense fund for them, that they had become suspicious and had sent Vanzetti to New York to ascertain the facts, that counsel for Salsedo and the Secretary of the Italian De­ fense Committee had both advised Vanzetti that the radicals in and about Boston would better collect and secrete all socialistic and radical literature in anticipation of similar raids by govern­ ment officials, that Vanzetti had reported these facts at a meeting in Boston on May 2, that he also reported that the charges on which Salsedo and Elia were being held could not be ascertained, that Salsedo was killed on May 4, 1920, by a fall from a window of the Park Row Building in New York, and that Sacco and Vanzetti had heard of this incident on May 4. Whether they believed that Salsedo had committed suicide by jumping from the window or had been murdered by being thrown therefrom does not clearly appear. As Vanzetti put it, "I know my friends there in New York have jumped down from the jail in the street and killed himself. The papers say that he jump down but we don't know." 18 Some months before his arrest Mr. Kelley, Sacco's employer, had warned him that he was being investigated. The police asked him whether he was a socialist, an anarchist, or a communist. It was because of his knowledge of the treatment of Salsedo and Elia, and of the deportation of other friends, and of his belief that his arrest was due to his activities as a radical, so Sacco says, that he told delib­ erate falsehoods to Mr. Katzmann on May 6. And it was to get Boda's automobile as a means of gathering and transporting the incriminating literature that he and Vanzetti went to Bridgewater on the night of May 5. They did not expect to do much, if any, collecting that night, but they planned to have Vanzetti go by automobile to Plymouth, there to find a convenient place for hid­ ing the literature. To offset this explanation the prosecution pointed out that

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THE LEGACY OF SACCO AND VANZETTI

Vanzetti returned from New York on April 29, and took no steps before May 5 to find such a hiding place in Plymouth. Further­ more Sacco did not attempt to conceal his incriminating books and pamphlets before his arrest. Neither defendant gave the death of Salsedo as the reason for commencing their activities on the night of May 5 or offered any explanation for failure to act be­ tween the meeting of May 2, where Vanzetti reported the result of his visit to New York, and the night of May 5. SUMMARY OF THE EVIDENCE RELATING TO VANZETTI To connect Vanzetti with the murder the state placed its case upon (1) Vanzetti's association with Sacco, (2) evidence of eyewit­ nesses as to Vanzetti's presence in the murder car, (3) possession by Vanzetti of Berardelli's revolver, and (4) conduct of Vanzetti indicating consciousness of guilt. Eyewitnesses. As tending to show that Vanzetti was at the scene of the murder the state offered J. W. Faulkner, who swore that he was a passenger on the train which left Cohasset for Boston at 9:23 A.M. on April 15. At East Weymouth, Weymouth Heights, and Weymouth Vanzetti inquired whether the station was East Braintree. Faulkner promised to notify him when the train reached that station. It arrived there at 9:54 and Vanzetti left it at that point. Faulkner could not be positive whether a photo­ graph offered to him represented Vanzetti, but he was sure he could not be mistaken about the identity of the man who left the train at East Braintree on April 15. He could not identify any other person on the train. He had ridden on that train many days before and many days after April 15. At first his only reason for connecting the date and the incident was that he then expected to go to work pretty soon. After some leading by counsel he said that he read of the murder in the newspaper of April 16, and then, "I thought that was one of the crowd that came up in the train with me." 20 But he never mentioned the incident to anyone for three months. Furthermore, the records of the railroad showed that no tickets were sold from nearby stations to East Braintree on the morning of April 15, and that no cash fares were collected for passengers from such stations to East Braintree. Harry E. Dolbeare testified that between ten o'clock in the morning and noon of April 15 he saw Vanzetti in the back seat

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of an automobile in South Braintree. Vanzetti was leaning for­ ward talking to a man in the front seat. There were five men in the car; they appeared to be foreigners, a tough-looking bunch. He could describe no other occupant of the car, and he got only a profile view of Vanzetti as the automobile passed. He learned of the shooting on the afternoon of April 15. There is no direct evi­ dence that he connected the sight of the five foreigners in the car with the murder, though such an inference might fairly be drawn. Michael Levangie, a railway-crossing tender at South Braintree, testified that the bandits required him to raise the gates by point­ ing a revolver at him, and that Vanzetti was driving the car. He was impeached by prior contradictory statements made to Carter, Sullivan, and McCarthy. His testimony as to his manipulation of the gates was inconsistent with that given by him at the inquest, but this did not appear at the trial. The prosecution admitted that Vanzetti was not driving the car, but argued that Levangie had seen him in the car and was mistaken only as to his position in the car. Austin T. Reed was a crossing tender at Matfield. The bandit car stopped some forty feet from the crossing at his signal. It then drove past, close to Reed's shanty. When the auto stopped, its engine was running and a train was approaching, yet Reed said he heard an occupant of the front seat call out in plain and unmis­ takable English, "What to hell I was holding him up for?" 21 And as the car drove past his shanty this same person shouted, "What to hell did you hold us up for?" 22 This occupant was Vanzetti. Reed saw Vanzetti at the Brockton Police Station and there heard him speak. His voice had the same gruff tone as that of the occu­ pant of the automobile. Austin C. Cole testified that Vanzetti and Sacco boarded his car at Sunset Avenue between Brockton and Bridgewater on the night of April 14 or 15. Vanzetti met all the foregoing evidence by direct denial and by the testimony of a number of alibi witnesses. As to the alibi wit­ nesses, the same observations may be made as are given above con­ cerning Sacco's alibi witnesses. Vanzetti's Revolver, J. F. Bostock testified that he had seen Berardelli carry a revolver in his hip pocket in the shop. He last saw it on the Saturday before the Thursday of the shooting. Berardelli had had it for a month or two and usually carried it in his hip

74

THE LEGACY OF SACCO AND VANZETTI

pocket. It was similar to No. 27 in the Vanzetti series of exhibits (which was conceded to be Vanzetti's revolver). It was a .38 cali­ ber, nickel plated; he could not tell whether it was the same re­ volver as Exhibit 27. Mrs. Berardelli, widow, swore that Berardelli had had a gun for a year and carried it while on duty. It was like Exhibit 27. About three weeks before April 15 a spring was broken in it, and she and her husband took it to Iver Johnson's, a sporting goods shop, for repairs. Berardelli never did anything about getting the gun back. He gave the ticket or check for it to Mr. Parmenter. The gun did not belong to Berardelli, Mr. Parmenter had let him take it; and while this gun was being repaired Mr. Parmenter let him have another which looked the same. On cross-examination Mrs. Berardelli was confused as to the date when the gun was left for repairs. She was discredited by the testimony of an acquaint­ ance, Mrs. Aldeah Florence, who was called by the defense, and swore that Mrs. Berardelli had made statements to the effect that Berardelli had never gotten the revolver out of the repair shop and was unarmed at the time of the tragedy. Lincoln Wadsworth, a desk man for Iver Johnson's, gave evi­ dence from his records that on March 20, 1920, a .38 caliber H & R revolver, property of Alex Berardelli, was brought in for repairs and sent up to the repair shop. It was ticketed as job No. 94765. Exhibit 27 was a revolver of the same make and caliber. George F. Fitzmeyer, a repair man for Iver Johnson's, testified from his records that a .32 caliber H & R revolver was repaired, a new hammer put in; this was job No. 94765. [Note the discrep­ ancy as to caliber in the two sets of Iver Johnson's records.] The hammer of Exhibit 27 looked like a new hammer. "Well, the fir­ ing pin does not show of ever being struck." 23 James H. Jones, manager of his firm's firearms department, swore that Iver Johnson's had no record of the delivery or resale of this revolver and that it was no longer in the shop. A strict record of all sales was kept. "But there are a few times when repair jobs are delivered by our errand boy and the money taken and put through by some of the salesmen where the full record of the de­ livery is not made in the book, which merely is the date of de­ livery." 24 McCullum, who was called by defendant to impeach Pelser's testimony concerning the encounter, saw a man putting some­ thing into the bandit car; the man had in his left hand a gun of

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revolver type. It looked like a white gun. With his right hand he seemed to be pushing into the car something which might have been a box. In this connection the testimony of McGlone and Wade, here­ tofore set forth as having been given against Sacco, is pertinent. McGlone saw one of the bandits hold Berardelli by Berardelli's left shoulder while a couple of shots were fired, and saw Berardelli go down. The other bandit then "started with a black bag." He saw three bandits in all, the one who had hold of Berardelli and two who ran with the boxes. Wade described the shooting of Berardelli. While Berardelli was in "a crouching position," Wade saw "this man" shoot twice at Berardelli. As he was shot at, the guard moved his right hand; Wade testified, "His right hand was here (indicating) and it was going like that (to his pocket) . . . not way behind. . . . About his hip. . . . The right." After an­ other shot was fired the automobile came, "and this man that was shooting at Berardelli went out on the side of the road and picked up the money box, I call it, and lifted it up with two hands and put it into the car, and he got into the car." 25 Vanzetti met this evidence by showing when and where he pur­ chased the revolver (Exhibit 27), and by expert testimony that the hammer of Exhibit 27 was not a new hammer. Extended comment on the evidence concerning the revolver will be made later. Consciousness of Guilt. The same claim of suspicious conduct near the house of Simon Johnson on the night of May 5 was made against Vanzetti and Sacco. Vanzetti's explanation is like Sacco's. It is a square denial of any suspicious or unnatural action on his part. He and Sacco encountered Orciani with the motorcycle at the time Boda was talking with Mr. Johnson. They remained near the cycle until Boda returned with the information that they could not get the automobile because they had no 1920 license plates. The plan was for Boda and Vanzetti to drive to Plymouth, where Vanzetti would endeavor to find some friends who would conceal all objectionable radical literature collected by him. Thereafter they would use the automobile to collect and trans­ port such literature. When they ascertained that they could not get the car Orciani and Boda departed in the motorcycle, while Vanzetti and Sacco proceeded along the street for about a mile to a point where they boarded a streetcar.

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THE LEGACY OF SACCO AND VANZETTI

On the car they were put under arrest by Officer Connolly. Vanzetti, so Connolly says, made a motion as if to put his hand to his hip pocket where he carried a loaded .38 caliber revolver (Ex­ hibit 27). He had no extra cartridges, but did have four shotgun shells containing shot larger than buckshot. Vanzetti emphatically denied that he reached for his hip pocket or that he attempted in any manner whatsoever to draw a weapon. His account of the arrest shows that Connolly used his gun in making the arrest as soon as he learned that Sacco and Vanzetti had come from Bridgewater. At the Police Station Vanzetti and Sacco were questioned by the Chief of Police and later by Mr. Katzmann. Vanzetti be­ lieved he was being arrested on a political charge, because the Chief inquired whether he was a socialist, an anarchist, an I.W.W., a communist, a radical, or a Black Hand; whether he believed in the Government of the United States or in the use of violence against the United States. In his answers to the Chief he made some misstatements, and in his answers to Katzmann he told in­ tentional falsehoods as to (1) the length of time he had known Sacco, (2) the date when he left Plymouth before his arrest, (3) the place where he bought his revolver, (4) his acquaintance with Boda, (5) his having seen a motorcycle or Orciani near the John­ son house and at Sacco's house, and (6) the circumstances under which he purchased the cartridges which were in the revolver. His reason for falsifying was his desire to shield all his radical friends and to prevent disclosure that he was a slacker and a draftdodger. He had learned in New York and elsewhere that there was much activity against the Reds. Men were being deported; many were being misused in jail. On May 4 he had learned of Salsedo's death. "I mean that I was afraid, for I know that my friends there in New York have jumped down from the jail in the street and killed himself. . . .26 I learned that most probably for the May 1st there will be many arrests of Radicals and I was set wise if I have literature and correspondence, something, papers in the home, to bring away and to tell my friends to clean themselves up the house, because the literature will not be found if the police­ men go to the house." 27 He explained having the shells by saying that he obtained them at Sacco's house on the afternoon of his arrest, where they had been previously left by one of Sacco's friends, who had had no further use for them.

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COMMENTS ON THE EVIDENCE: INDIVIDUAL ELEMENTS

Identification. Of the thirty-three eyewitnesses, the state was able to produce three who claimed to have seen Sacco in South Braintree before the shooting, one who asserted that he saw the shooting, and three who testified that they saw him in the bandit car immediately after the shooting. Of the first group, W. J. Heron had little, if any, reason for noting the characteristics of the men; he had nothing at all to correlate the date with the event, and his explanation of his refusal to talk to the representative of the de­ fendants was little short of ridiculous. The observations of W. S. Tracy were the most casual. He thought the men were waiting for a streetcar. He noticed not a single characteristic feature of either man. It may be that he honestly thought Sacco looked like one of them; but a glance at the descriptions given by the various wit­ nesses (outlined above) will reveal that they would fit thousands of foreigners to be seen every day on the streets of any industrial city in New England. Mrs. Andrews had the best opportunity to see the man to whom she talked. On paper she seems to be the most thoroughly discredited witness in the case. Her story has much inherent improbability. Why she should seek information as to how to get into the factory of Rice and Hutchins from a man on the street, instead of inquiring in the Slater and Morrill mill, as Mrs. Campbell says she actually did, is somewhat puzzling; and why she should choose to make the inquiry of a man lying under an automobile instead of the much more available man on the sidewalk is still more of a mystery. Furthermore, the testimony of the policeman and the newspaper reporter ring true and tend to corroborate Mrs. Campbell while giving the lie direct to Mrs. Andrews. Under these circumstances and in view of the evidence of Mrs. Andrews's bad reputation for veracity, there is nothing in the record to give her credence in her conflict with the witness Kurlansky. And the attempt to rehabilitate her only increased her impeachment, for how could she tap on the shoulder the man whose head and shoulders were under the automobile? If she is to be believed it is not on account of anything that appears on the printed pages of the stenographic minutes. Pelser is the one witness who recognized Sacco as the shooter of Berardelli. Did he actually see the shooting? He told representa­ tives of defendants and of the state that he did not. Three of his

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THE LEGACY OF SACCO AND VANZETTI

fellow workmen described what occurred at the very window which Pelser says he opened. And while none of them could say that Pelser did not look out of another window at that time, their testimony makes it clear that he did not look out of that particu­ lar window. While they did not make a perfect showing under cross-examination, they were not shaken in any material matter; and their testimony was entirely consistent with and fully cor­ roborated by Pelser's story off the stand. His explanation that he lied before subpoena in order to escape being brought into court is hard to credit in view of his admission that he gave the number of the automobile to the police and then realized that he was the only witness who had secured that number. If he is to be believed it is for some reason which does not appear in the printed record. Of the three who identified Sacco as an occupant of the bandit car, not one is convincing on paper. Miss Devlin's evidence has perhaps the fewest flaws. She had the car in view while it traveled about two hundred feet; and she seems to have conceded that she had the man in view only while it was traveling from forty to sixty feet. If the car was traveling only ten miles an hour she had it in view not over fourteen seconds and had the man in view not over four seconds (and Miss Splaine says the car was traveling eighteen miles an hour). In this small fraction of a minute she tried to get, and believed that she did get, the number of the car, but her memory on this point was hazy, and she also got her men­ tal picture of the man. Her refusal in the Quincy court to say positively that Sacco was the man seems highly reasonable. If her attention was divided, if she really noted the number of the auto­ mobile, it would be taxing human credulity to ask one to believe that she could be sure of more than a very general resemblance of the man. Her attempt to reconcile her apparent uncertainty at Quincy and her positiveness at Dedham will scarcely convince anyone not already convinced without it. "I didn't want to com­ mit myself." 28 Why? Was she not under oath? And the stricken explanation is no more satisfactory: "I hated to say right out and out. I knew he was the man and still I didn't want to say knowing as I knew it would be a deliberate lie, according to my own mind, but still I hated to say right out and out, so I just put it that way." 29 Just what does this mean? Does it mean that she refused to tell the truth in the Quincy court when the consequences of identifying the accused would be less awful and yet did tell the truth in the Dedham court where the very life of the defendant

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was at stake? Or had the power of suggestion not yet exerted its complete influence? Is it not likely that in the interim between her appearance in the Quincy court and her appearance in the Dedham court she had without additional data convinced herself that the defendant was the man? Miss Splaine makes a very unfavorable impression on the rec­ ord. She had a view of the man while the car was traveling from thirty-five to sixty feet. She, like the previous witness, was about sixty feet back from the street and looking out of a second-story window. Her view could not have lasted over four seconds and was probably not even half that period. Her demeanor on the stand exhibits a remarkable lack of frankness.30 She admitted that she had picked out a rogues'-gallery portrait of a prison inmate as resembling Sacco, but she insisted that she had limited the strik­ ing resemblance to "some features." At first she emphatically denied that in the Quincy court she had said, "I will not swear positively he is the man." She persisted in the denial when counsel advised her that he was reading from the stenographic record. It was only after the assistant prosecutor had talked with her out of court that she was willing to make the admission. And even on his examination she seemed reluctant to confess that he had gone over with her a part of the stenographic record. Furthermore, she admitted that she had also testified in Quincy, "I don't think my opportunity afforded me the right to say he is the man." 31 Indeed her evidence as to what she saw and as to her opportunity for observation is convincing that her testimony in the Quincy court is what would be expected of any honest witness upon whom the suggestive power of the previous identifying scene had not yet done its full work. But her statement as to the cause of her cer­ tainty at Dedham carries no such weight. "From the observation I had of him in the Quincy Court and the comparison of the man I saw in the machine, on reflection I was sure he was the same man." Does this not seem to indicate that Miss Splaine had cre­ ated her certainty by reconstructing the scene by the aid of what she saw and heard at Quincy rather than by merely matching her memory picture with the appearance of Sacco? The following quo­ tation from Miinsterberg's On the Witness Stand describes Miss Splaine's case as accurately as if it had been written for that ex­ press purpose: "The imaginative idea which fits a prejudice, a theory, a suspicion, meets at first the opposition of memory, but slowly it wins in power and as soon as the suggestibility is in-

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THE LEGACY OF SACCO AND VANZETTI

creased, the play of ideas under equal conditions ceases, and the opposing idea is annihilated." 32 Carlos E. Goodridge is quite as unimpressive as Devlin or Splaine. His direct examination, as it appears in the transcript, was clear and positive. But he was impeached by prior contra­ dictory statements made shortly after the event to four different persons and his reputation for veracity was shown to be bad. It is a truism that credibility of witnesses is for the jury. No doubt this jury had the privilege of believing these seven wit­ nesses as against all the other eyewitnesses and eight alibi witnesses for the defense, no one of whom was as badly discredited on the record as Mrs. Andrews, the principal identifier of Sacco before the shooting, or Pelser, the sole identifier at the shooting, or Goodridge, the chief identifier after the shooting, and most of whom were not nearly so much shaken as Devlin or Splaine. Give a jury the greatest latitude in believing or disbelieving witnesses; ex­ plain the discrepancies as to dress and other details as mistakes of detail in memory; and it would still be difficult to convince an impartial reader that any reasonable jury would have found a verdict against Sacco on the identification testimony alone. As to Vanzetti, the identification by Faulkner was positive. It was, however, so open to attack for error and so feebly attached to the fatal date that it falls clearly in the same class as most of the defendant's alibi testimony. Levangie's testimony needs only to be read to be doubted. He was so thoroughly discredited that the prosecution abandoned his testimony as given but insisted that he was mistaken only with reference to the position which Van­ zetti occupied in the bandit car. Dolbeare got only a fleeting glance, a profile view of an occupant of the back seat of an auto­ mobile, under circumstances calling for no attention to detail; and yet because Vanzetti's profile matched his then existing mem­ ory picture of the profile in the car, he was positive of his identi­ fication. If there could be weaker evidence of identity of two hu­ man beings, it rarely appears as a basis for conviction in court records. It may be true that Dolbeare's cross-examination was not vigorous or effective. Indeed, the same might well be said of many witnesses in the case. But in this instance cross-examination could not more clearly have exposed the obvious weakness of the testi­ mony. The incident at the Matfield crossing as related by Reed makes his identification of Vanzetti almost worthless. When he first saw the occupant of the car the latter was forty feet away, be-

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hind a windshield of an automobile, and Reed's attention must have been distracted by the coming train, which passed between him and the automobile. His second view was as the car traveled past his shanty (a passing glance again). The language—clear and unmistakable English—could not have been used by Vanzetti. It is inconceivable that any jury should consider any such identifi­ cation testimony as anything more than the merest makeweight. A reading of the record almost forces the conclusion that no reasonable jury could have been satisfied by the identification testimony alone of the guilt of either Sacco or Vanzetti. The trial judge at one later stage of the proceeding seemed to be of this opinion. Defendants had moved for a new trial on the ground that a newly discovered eyewitness, Gould, would testify posi­ tively that the bandit who fired from the moving automobile was not Sacco. In denying the motion Judge Thayer said: ". . . these verdicts did not rest, in my judgment, upon the testimony of eye­ witnesses, for the defendants, as it was, called more witnesses than the Commonwealth who testified that neither of the defendants were in the bandit car." 33 The Cap. As to the cap, the prosecuting attorney put little re­ liance upon it in his argument to the jury except as furnishing some corroboration of other testimony. It must be too clear for argument that the finding at the scene of the murder of a cap of common design, common size, and common color, even if it be conceded that it fitted the defendant, can at most be a mere cor­ roborating circumstance. It may be ventured that a mathematical computation would show the chance of identity of such a cap with the cap previously owned by Sacco to be practically negligible. Consciousness of Guilt. The evidence which impressed Judge Thayer most strongly was that showing consciousness of guilt. He laid emphasis on it in his charge to the jury. In denying the previ­ ously mentioned motion, he said: "The evidence that convicted these defendants was circumstantial and was evidence that is known in law as 'consciousness of guilt.' This evidence, corrobo­ rated as it was by the eyewitnesses, was responsible for these ver­ dicts of guilty." 34 It is undisputed that the two defendants did tell a number of lies, and it might be easily deduced from Sacco's previous conduct that he was in the habit of lying on slight provo­ cation. Many of these lies might or might not be explained by a

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desire to shield radicals and to conceal former unpatriotic con­ duct, and anyone would be justified in believing that they were trying to conceal something which they believed forbidden by law, but how could anyone reasonably conclude that that some­ thing was the South Braintree murders unless already convinced that the defendants had participated in them? It is undisputed that they were not informed that they were suspected of that crime. It is true that the name of Berardelli was mentioned in the course of a long examination, but the mention was purely inci­ dental. Had they been informed that they were suspected of that crime, then their falsehoods might have been some foundation for such a deduction. As it was, however, what they were attempt­ ing to hide might as well have been any other crime committed in the Commonwealth of Massachusetts within any reasonable period prior to the examination. No, the conduct of the defend­ ants in lying to the police officers and the prosecuting attorney could not be rationally used as pointing to the consciousness of guilt of the murder of Berardelli or Parmenter. Assume that de­ fendants knew the details of that crime and that they were sus­ pected of it, then the inference is reasonable; otherwise not. The same is true of their alleged conduct before the house of Simon Johnson. Grant that they did follow Mrs. Johnson as she went to the neighboring house, that they saw the telephone wires leading into that house, that the motorcycle light was flashing, and that they followed her back, and left immediately. This conduct may have been due to a fear that she had summoned the police. But unless they knew of the South Braintree murders they could not have thought that they were wanted on that account. It is undis­ puted that they were after Boda's automobile, and that it had no connection with the South Braintree robbery. The learned trial judge has the cart before the horse. This suspicious conduct is corroborative of other evidence. It cannot be independent, sub­ stantive evidence of guilt of this particular offense. The testimony as to identification, as to the cap, and as to con­ sciousness of guilt, both in its separate parts and in its entirety, leaves the reader in a state of utter bewilderment. It seems impos­ sible, upon a careful analysis, to believe that an impartial trier could have been convinced by it beyond a reasonable doubt. The possible deductions, most of them consistent with the innocence of the defendants, are too numerous to justify the conclusion that even a preponderance of the evidence is against the defendants,

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to say nothing of producing a conviction of guilt beyond a reason­ able doubt. The Fatal Bullet and the Shell. As to Sacco, the one item of evidence that might be decisive of the whole controversy deals with the fatal bullet and the shell from which it was alleged to have been fired. Three other bullets were found in the body of BerardelIi; one in the body of Parmenter; and another one near his body in the room where autopsy on his body was held. These five all came from a pistol with a "right twist" whereas the fatal bullet had, as has already been stated, a "left twist." If the fatal bullet came from Sacco's pistol, the deductions in his favor, nor­ mally to be drawn from the other evidence, must give way; then in all human probability he was the murderer of Berardelli. If that bullet did not come from Sacco's pistol, then the case against him is so weak as to make the verdict of the jury shocking. That the trial judge must have had some notion of this appears from his final review of the case. "Suppose," he says, "at the trial the Commonwealth claimed that the bullets in the dead bodies of Parmenter and Berardelli were of .32 calibre, and later it was dis­ covered that the Sacco pistol was a .38 calibre. What a strong de­ fense Sacco would have then had!" 35 Upon this crucial issue, therefore, the record deserves the closest scrutiny. It is the key to the entire case. A word of explanation may be helpful to an understanding of the expert testimony. The interior of the barrel of a pistol is rifled, that is to say, it has a number of spiral grooves cut in it. The portions of the barrel between the grooves are called lands. If the inclination of the grooves is clockwise the barrel is said to have a right twist; if counterclockwise, a left twist. The cartridge used in a pistol consists of a small metal tube, called the shell, which contains an explosive, and of a bullet. In the center of the base of the shell is a small metal cap, the primer cap, which forms one end of a tiny chamber filled with a percussion composition; the other end of this chamber is called the anvil. From this a vent leads to a larger chamber in which the powder or other explosive is stored immediately behind the bullet. The bullet may have a groove around it near its base, into which the top of the shell is crimped. This groove is called a cannelure. The breechblock of the pistol fits snugly against the end of the barrel into which the cartridge is thrust, sometimes called the lead of the barrel. The

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THE LEGACY OF SACCO AND VANZETTI

breechblock has an aperture through which the firing pin of the hammer protrudes. When the trigger of the pistol is pulled, the firing pin of the hammer pierces the primer cap, strikes the anvil, and sets off the explosion which propels the bullet through the barrel. As the bullet travels in the barrel under tremendous pres­ sure, it expands so that it fills the grooves. When it fills the grooves it is said to "take the rifling," and it rotates, so that, as it leaves the barrel, it spins and flies true instead of tumbling end over end as it would probably do if projected from a smooth barrel. The lands of the barrel make grooves in the bullet, and the grooves in the barrel make raised portions, sometimes called lands, on the bullet. If there are irregularities in the barrel, such as pits or protuberances, they are likely to leave marks upon the surface of the bullet. The breechblock of an automatic pistol is finished by a hand file. Consequently its surface is marked by fine lines almost as characteristic of the particular block as the lines on the surfaces of the fingers are characteristic of an individual. When the car­ tridge explodes, the base of the shell is driven back against the breechblock with such force as to engrave upon the face of the base of the shell a print of that portion of the breechblock against which it has been driven. Before the trial began, the expert witnesses for the prosecution and for the defense made various experiments by firing various cartridges in the so-called Sacco pistol; and in the testimony the shells and bullets of these cartridges are variously referred to, e.g., as test bullets, or as shells fired in Lowell. Dr. George B. Magrath, the medical examiner, described the wounds on the body of Berardelli and traced the course of each bullet from the wound. He numbered the bullets in the order in which he found them by making on the base one vertical line on the first, two on the second, three on the third, and four on the fourth. The bullet marked III caused death. At the trial Mr. Wil­ liams handed some bullets to the witness, and Dr. Magrath said: "I identify that (indicating) as the bullet which I numbered 'III' by placing three vertical marks upon it, on the left base." 38 This bullet was then received in evidence without objection, and the envelope containing it was marked "Exhibit 18." There was no cross-examination and no other evidence as to the identity or au­ thenticity of this bullet. J. F. Bostock picked up three or four shells at the scene of the

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shooting; he testified that he did not turn them over to Mr. Fraher, superintendent of the Slater and Morrill factories, but left them in the office of Slater and Morrill in one of the desks. Mr. T. F. Fraher testified that shortly after the shooting Bostock delivered four empty shells to him, and that after keeping them for about an hour and a half he turned them over to Captain Proctor. Proctor produced four shells which he got from Fraher and which had been in Proctor's possession until he "turned them over to the sheriff in this court." They were admitted over a gen­ eral objection. They were two Peters, one Remington U.M.C., and one Winchester, but no identifying mark was put on any one of them, so far as the evidence shows. There was no crossexamination of Bostock or Proctor concerning these shells, and only a few perfunctory questions were put to Fraher. As to the Winchester shell, Captain Proctor testified that the marks on it and on six other shells that were concededly fired in Sacco's pistol were consistent with being fired in "the same make of weapon." The question specified the same weapon, but the wit­ ness carefully restricted his answer to the same make of weapon.37 And his reason was solely the similarity in appearance of the holes made in the primers of the shells by the firing pin of the pistol. No other marks upon the shells were noticed or commented upon. As to the bullets, Captain Proctor was certain that the righttwist bullets were fired from a Savage automatic. "I can," he said, "be as certain of that as I can of anything." 38 He believed also that all of them were fired from the same pistol because of the irregularities occurring upon the rifling marks of all of them. As to the left-twist bullet, the grooves made by the lands of the pistol were .060 of an inch in width, and caused him to believe that it was fired from a Colt automatic. He was then asked: "Captain Proctor, have you an opinion as to whether bullet 3 [Exhibit 18] was fired from the Colt automatic which is in evidence [Sacco's pistol]?" A. "I have." Q. "And what is your opinion? A. My opinion is that it is con­ sistent with being fired by that pistol." 39 These questions and answers were not touched on cross-exami­ nation. That dealt only with Proctor's general qualifications and included attempts to drag from him opinions as to other bullets, which he refused to give without time and opportunity to make a thorough examination of them. He professed to be an expert as to the marks made upon bullets by rifling of pistols, and upon

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THE LEGACY OF SACCO AND VANZETTI

that alone. A reading of his testimony gives the impression of a frank but cautious witness who refuses to be led outside the field of his narrow specialty. Captain Van Amburgh, a technical expert employed by the Remington U.M.C. Co., pointed out "a very strong similarity" between the Winchester shell which Bostock had picked up at the scene of the shooting and three Winchester shells fired in Sacco's pistol, in that the indentations made by the firing pin were slightly off center in all four and were all of about the same diameter and depth. "In addition to the similarity in diameter, there is a slight set-back, so-called . . . which means a slowing [flowing] back of the metal around the point or end of the firing pin. That is pres­ ent in the so-called Fraher shell and in the three Winchester shells which were fired in Lowell." 40 The cause of such setback is "usu­ ally a little opening in the mouth of the firing pin hole. . . . It is not an unusual thing, but it does not occur in all guns. . . . It doesn't happen in all Colt pistols."41 After explaining the cause of the setback as being the internal pressure in the exploding shell, he was asked by Mr. Williams for the prosecution: Q. Now, Captain, having in mind the similarities of the shells of those cartridges, having in mind your examination of No. 3, your examination of the six bullets fired by you and Captain Proctor at Lowell, have you formed an opinion as to whether or not the No. 3 bullet was fired from the Colt automatic gun which you specifically have in front of you? A . Will you just state that question again, please? I don't quite get it all. Q. You may strike that out, please. Have you formed an opinion, Captain, as to whether or not No. 3 bullet was fired from that particu­ lar Colt automatic? A . I have an opinion.42 After giving his opinion he was asked for the basis or bases of it. In neither his direct nor his cross-examination did he mention the appearance of the shell as a support for his opinion. And this, in the face of the fact that counsel by the first quoted question had directly suggested the pertinency of this factor. Captain Van Amburgh gave measurements of bullet No. 3. The grooves in the bullet measured .060 of an inch and the lands of the bullet measured .107-.108 of an inch. The bullet had a left twist. The measurement of the groove on the bullet agreed with the width of the lands in the barrel of a Colt .32 pistol. It is im-

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portant to note the exact language in which Captain Van Amburgh phrased his answers concerning his opinion. When asked his opinion as to whether bullet No. 3 was fired from a Colt pistol he said, "I believe number three bullet was fired from a Colt barrel." 43 When asked his opinion as to whether or not that bullet was fired from the Sacco pistol he said, "I am inclined to believe that it was fired, No. 3 bullet was fired, from this Colt automatic pistol." 44 He gave as his reason for the opinion cor­ respondence between the measurement of the grooves on the bullet with the lands in the pistol barrel, of the lands on the bul­ let with the grooves in the pistol barrel, and of the lands and grooves on the fatal bullet with those on the test bullets fired from Sacco's pistol at Lowell. In each instance he gave the measurement of the grooves on the bullet as .060 of an inch. In addition he said that there were irregularities upon the fatal bullet and There are irregularities evidently caused by similar scoring or irregu­ lar marks in rifling which appear on all bullets which I have examined that I know have been fired from this one automatic pistol which is before me. . . . No. 3 bullets, [sic] I find on No. 3 bullets [sic] such evidence of scoring in the barrel. It takes on the bullets the form of a, well, a long streak bordering close on the narrow cut, the land cut, on the bullet.45 As to the Sacco pistol he said: On the bottom portion of the barrel as you look into it, beside that land on the right side of it is a rough track, at the bottom of the bar­ rel. . . . This appears to be what is generally known as a pit. I really believe that it is caused by allowing powder fowling [sic] to stand in the barrel, and the matter of rust allowed to stand and eat its way in, and finally pits occur. . . . The bullet has got to drag—If it touches, expands to barrel size, it has got to drag along. It will be scored in travelling over a rough track. . . . I would say there are quite a few streaks of roughness and quite a collection of pits in there, but it seems to be more pronounced in the corner of the groove in the barrel the corner of the groove.46 He said he knew of no other marks upon the bullets than those caused by the rough tracks in the barrel. There seems to be one which has impressed me very much, one streak along each bullet fired through this exhibit gun—very pronounced. Others are not quite so prominent.47

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THE LEGACY OF SACCO AND VANZETTI

There was no cross-examination with reference to the marks on the bullet caused by pitting. The cross-examination went to the marks made by the rifling and to the measurements of the lands and grooves. One of the defendant's experts, Burns, explained the cause of setback or flow-back on shells and asserted that it was a usual thing; it would occur on one cartridge and not on another fired in the same gun. He also testified that the anvil of the primer in a shell ordinarily caused the firing-pin hole or indentation to be slightly off center. The extent of variance from center even in the same gun differed with the individual cartridge. Upon this mat­ ter he was not cross-examined. He gave his opinion that bullet No. 3 was not fired from Sacco's pistol because the test bullets fired from that pistol had practically perfect and clean-cut "lands," that is, rifling marks: the pitting in Sacco's pistol was slight and the muzzle was perfect. On the fatal bullet the lands or grooves were not clean-cut. The groove at the top of the bullet had a width of .060 of an inch while those at the bottom had only .050. This indicated a fouled lead in the pistol. The lead in Sacco's pistol was not fouled. He was of opin­ ion that the marks which pittings in a pistol barrel will make on a bullet are not uniform enough to enable one to distinguish them on a bullet or to determine whether a bullet comes from a par­ ticular gun. He had shot one hundred bullets from pitted guns and was unable to find that the pittings produced any distinguish­ ing marks. On cross-examination it was brought out that the test bullets which he fired from Sacco's pistol were U.S. bullets, while the fatal bullet was a Winchester. He was asked whether the marks on the test Winchester bullets which Van Amburgh had fired did not show markings similar to that on the fatal bullet. This he denied. He also insisted that the U.S. bullets which he had used as test bullets were nearer in essential characteristics to the fatal bullet than were the particular type of Winchester bullets used by Van Amburgh, because the fatal bullet and the U.S. bullets each had a hollow base and "cannon-lure" 48 (sic) while the Win­ chester test bullets had a solid base and no "cannon-lure." (sic) The hollow base makes a better gas check and causes the bullet to take the rifling better. He refused to admit that he could see certain marks on the bullet, in the barrel of the pistol, and on the sulphur cast of the core of the barrel, which the cross-examiner

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asked the jury to note as visible to the naked eye. The witness in­ dulged in much verbal fencing with the cross-examiner, and in some places the record gives the reader the very unpleasant im­ pression of lack of frankness. It must be confessed that he had much provocation, for Mr. Katzmann insisted upon very re­ stricted answers which, a witness might well think, would convey a wrong impression. In this connection Burns asserted that the width of the groove near the nose of the fatal bullet did not appear perceptibly greater than at the base. On redirect he explained that what Mr. Katzmann was apparently insisting on calling an increase in width of the groove was a turn-over of the metal on the upper edge of the groove caused by the bullet's having jumped the lands on account of the fouled lead. Fitzgerald, the other expert offered by the defense, agreed with Burns that flow-back is found in cartridges fired in all makes of guns. The amount of flow-back depends upon the hardness of the primer. The anvil of the primer causes the firing-pin hole to be somewhat off center. The appearance of the firing-pin indentation is not an identifying characteristic. On cross-examination he said that there was flow-back on the fatal shell, on the three Win­ chester shells fired in Sacco's pistol, and on one of the three Peters shells fired in Sacco's gun. He insisted, however, that the four Winchester shells had no common characteristic; each of them was different from every other. The fatal bullet was not, in his opinion, fired from Sacco's pis­ tol, because the land marks on it did not correspond with the lands on the test bullets fired from that pistol. The fatal bullet had jumped the lands in the pistol, and there was nothing in the condition of Sacco's pistol to cause a bullet to jump the lands. There were no pitting marks on the fatal bullet that would cor­ respond with the marks on the test bullets shot from Sacco's pistol. When the cross-examiner asked him concerning the width of the groove at the top of a bullet as compared with the width at the base, he professed not to understand the question. Thereupon the cross-examiner dropped him with an appearance of disgust. Such is the testimony upon this—the most vital issue in the law­ suit. As to the Winchester shell, the utmost that any trier could find against the defendants was that its appearance was not incon­ sistent with its having been fired in Sacco's pistol. As to the fatal bullet, listen again to the prosecution's experts. What does Cap­ tain Proctor say ". . . it is consistent with being fired by that

90

THE LEGACY OF SACCO AND VANZETTI 49 Contrast

pistol." that with his answer about the right-twist bul­ lets: "I can be as certain of that as I can of anything." 50 Could anyone say that Captain Proctor was sure that the bullet came from that gun or that he even thought it probable? Captain Van Amburgh's opinion comes nearer the mark, but it misses it by a magnificent margin: "I am inclined to believe that it was fired . . . from this Colt automatic pistol." 51 He believed that it was fired from a Colt, but he was only "inclined to believe" that it was fired from this particular gun. In answer to another question he defined the word believe. He had testified that he believed the pitting in the barrel was caused by rust. He was then asked, "When you say 1I believe,' have you anything back of that that you don't feel quite sure of?" He answered, "Yes, I have a slight reservation," 52 Here then is a witness who phrased his answers carefully. "I believe" did not mean "I am sure"; and "I am in­ clined to believe" cannot be as strong as "I believe." Consequently had Captains Proctor and Van Amburgh constituted the jury, with the data then in their possession, and with the state of mind dis­ closed in the record, they must have returned a verdict for the defendants upon this issue. Vanzetti's Revolver. Vanzetti's revolver is to his case much as the fatal bullet is to Sacco's. If that revolver belonged to Berardelli, then, on the record Vanzetti had a close connection with the gang that committed the murder. There is no question that Van­ zetti's pistol (Exhibit 27) was a .38 caliber, nickel-plated, H 8c R revolver. The only evidence that Berardelli ever possessed such a weapon is found in the testimony of Bostock, Mrs. Berardelli, and Wadsworth. First, let it be noted that neither Bostock nor Mrs. Berardelli disclosed any knowledge of revolvers. Bostock said that Berardelli's pistol was of .38 caliber, but he did not know the number of chambers in it. The testimony of Fitzmeyer for the Commonwealth makes it clear that the only difference between a .38 and a .32 H 8c R revolver is in the number and size of the chambers. The frame is of the same size in both. Obviously Mrs. Berardelli knew nothing of the caliber of the pistol. Her only testimony was that it looked like Exhibit 27. The records in Iver Johnson's store were conflicting. The desk man ticketed Berar­ delli's pistol as a .38 caliber; the repair man recorded it as a .32 caliber. Since the frames of both models are of the same size, it is impossible even to guess who was right. But it is reasonable to

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think that the man who must have disassembled it in order to repair it would seem to be more likely to have correct information as to its caliber. (In this connection it is interesting to note that Mrs. Berardelli said that her husband's gun had a broken spring, and Fitzmeyer's record shows, under the same date with the Berardelli pistol, two other repair jobs on H & R revolvers where the defects repaired were broken springs.) If Berardelli's pistol was a .32 caliber all semblance of relevancy of this part of the testi­ mony is dissipated. Furthermore, the evidence makes it clear that Berardelli never personally got this gun back from Iver Johnson's. Mrs. Berardelli said so flatly. The check for it he gave to Parmenter; and Parmenter let him have another weapon of the same appearance. If Bostock saw Berardelli with a revolver on the Saturday before the fateful Thursday, which one was it? To conclude that it was the repaired pistol it is necessary to believe that between March 20 and April 10 Berardelli gave the check to Parmenter, Parmenter redeemed the pistol, Parmenter delivered it to Berardelli and took back from Berardelli the second pistol which he had previ­ ously lent to him. What basis can there be for making such infer­ ences in the face of the fact that both revolvers belonged to Par­ menter and both were of the same general appearance? Aren't these inferences mere speculation? Would anyone in the world think of making a decision in any important matter depend upon the correctness of such a series of conjectures? Again, the only evidence from which one could deduce that Berardelli was armed on that eventful day is Bostock's testimony that Berardelli carried a revolver in the shop. If he carried it in the usual place, his hip pocket, it must not be forgotten that at the time of the shooting he wore not only a sack coat, but an over­ coat. No witness of the tragedy saw him do more than put his hand toward his hip pocket. McGlone, alone, saw one bandit hold Berardelli by the right shoulder with his left hand while he shot him, but the other two bandits ran with the money boxes. Wade saw the bandit who shot Berardelli use both hands to put a money box into the car. These two had longer and better views than McCullum, who said that he saw a bandit pushing something into the car with his right hand while he had what looked like a white gun in his left hand. Mr. Katzmann argued from McCullum's testimony that the bandit who shot Berardelli had the money box in his right hand and Berardelli's revolver in his left hand, making

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no comment on the testimony of McGlone and Wade on this point. To accept this deduction is to strain credulity. And to iden­ tify the repaired gun with Exhibit 27 requires the discrediting of an inherently reasonable story of the history of that exhibit, the finding that it did have a new hammer, and the deduction that the coincidence of this single characteristic in two H & R revolvers establishes their identity. In short, to reach the ultimate conclusion that Exhibit 27 was taken from Berardelli demands a series of speculative inferences which cannot rise above the dignity of a mere guess. On this issue alone no jury would think of condemning any fellow being. An analysis of the evidence, then, on each phase of the case is convincing that had the decision hinged upon any single element, the verdict of guilty must have depended, not upon the strength of the testimony, but upon the persuasive power of the prosecu­ tion's conduct of the trial, or upon something not appearing in the record. As to each item there was a question for the jury; a court would not have been justified in preventing the jury from passing upon it; but a court would have been justified in setting aside a verdict of guilty as against the great weight of the evidence. COMMENTS ON THE EVIDENCE: CUMULATIVE WEIGHT

No case, however, can be properly considered piecemeal. A com­ bination of facts may carry infinitely more weight than the sum of the values of its separate parts. And in this case, it must be said, there is against the defendants a series of coincidences which prima facie are dreadfully damning: (1) Sacco was not at his usual place of work on April 15. (2) Sacco lied to his employer, Kelly, to account for his absence from work on the afternoon of April 15. (3) A bandit who had an appearance sufficiently similar to Sacco to cause some persons to swear that he was Sacco, and others to swear that he looked like Sacco, killed Berardelli by a bullet fired from a Colt automatic pistol. (4) That bandit wore a cap before the shooting and was bareheaded as he rode away in the bandit car. (5) A cap was found near the body of Berardelli which almost or quite fitted Sacco's head and was of the same general outward appearance and color as Sacco's cap. (6) On April 15 and when arrested Sacco had a Colt automatic pistol and cartridges, some of which were of the same manufacture as the fatal bullet. (7) Some of the marks on the fatal bullet, particularly as they ap-

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peared to the naked eye, were similar to those on other bullets shot from Sacco's pistol. (8) Sacco when arrested gave an inac­ curate statement as to his whereabouts on April 15, and delib­ erately asserted falsely that he had never been in Braintree, though he had worked there for Rice and Hutchins in 1917 under an assumed name. (9) Vanzetti was closely associated with Sacco. (10) Vanzetti when arrested had in his possession a loaded .38 caliber H & R revolver and four shotgun shells containing shot, larger than an ordinary pea. (11) As the bandit car drove away there protruded through its rear window either a shotgun or a rifle. (12) Berardelli usually carried a revolver similar in appearance to that found on Vanzetti and after his murder this revolver was missing. (13) Berardelli had left an H & R revolver for repairs. Vanzetti's revolver had an appearance which induced some ex­ perts to say that it had been repaired. (14) After his arrest Vanzetti told a number of deliberate falsehoods on matters relevant to the case. The force of this concatenation of circumstances cannot be dis­ regarded or lightly brushed aside. The concurrence of so many direful events, each requiring denial or explanation, raises the query whether mere chance can account for the peculiar combina­ tion. Every single explanation or denial offered by defendants is plausible, if not absolutely convincing. But as one explanation or denial follows another, the suspicion is born and waxes strong that each and every one of them must be searchingly scrutinized. Yet it must never be forgotten that in this investigation every doubt is to be resolved in favor of the defendants. There is a real danger that too much importance will be attached to the com­ bination of circumstances, and that defendants will be required to show why the deduction of guilt should not be made against them, and that the prosecution will be relieved of its legal burden of demonstrating why the inference of innocence should not be made in their favor. Face this problem squarely. Take first the combination of cir­ cumstances against Vanzetti. Consider it in the light of the previ­ ous analysis of the evidence. It is too clear for argument that one item and only one is of decisive importance, namely, his associa­ tion with Sacco. Without that, there is no evidence against Van­ zetti worthy of serious consideration. If Sacco was innocent, Van­ zetti was also. If Sacco was guilty, no jury could be censured for believing that Vanzetti shared his guilt. Examine the combination

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against Sacco. On the previous analysis, putting aside the evidence of the fatal bullet and the Winchester shell, the record may well raise doubts as to his innocence, but it cannot be said to make his guilt probable, much less to establish it. As this issue of the bullet and shell was presented to the jury, no one could say that they would be unwarranted in resolving it against the defendants. The visible marks on the shell and on the bullet might easily have led a layman to think it probable that they had been fired in Sacco's pistol. Make this finding against Sacco, and all the remainder of the evidence becomes a veritable mountain of corroboration. Make this finding in his favor, and the remainder of the evidence becomes no solid mountain, but a mass of misty doubts. THE CONDUCT OF THE TRIAL

On the record as it stands, then, the case was for the jury; there was evidence to support the verdict. But the question remains: Was the case presented to the jury so that they understood the subordinate issues, and their bearing one upon another and upon the ultimate issue of guilt? It was all very well for the prosecutor to assure the jury that the prisoners had been vigorously and effi­ ciently represented and protected by his learned brethern for the defense. It was the orthodox inanity for both counsel to pay their forensic devotions to imaginary virtues of the trial court. But this is neither the time nor the place for the empty courtesies of the courtroom. Plain speaking is in order. It requires no critical ex­ amination of this record to make the simple truth stand forth. Against a masterful and none too scrupulous prosecution was opposed a hopelessly mismanaged defense before a stupid trial judge. It would not be profitable to discuss in detail the numer­ ous manifestations of bad judgment by defendants' attorneys and the court. It may not be worth while to demonstrate the mistake in policy of presenting such a hodgepodge of alibi testimony as to enable the prosecution to seize upon the worst of it as charac­ teristic of the whole. Physical or mental weariness or exasperation at the folly of the suggestion may be offered as a sort of excuse for the apparently senseless obstinacy of counsel in refusing to answer the trial judge's asinine and malicious query whether defendants intended to argue that they were performing a service to the United States Government in attempting to collect and secrete the objectionable radical literature. Errors of this sort are likely to

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occur in any important trial of such duration. It is somewhat more difficult to palliate the handling of the issue of consciousness of guilt. The Handling of the Issue of the Defendants' Radicalism. It is of course too late to argue about the advisability of introducing the radical views of the defendants. No advocate would think of presenting such material at such a time unless he were himself a fanatic or unless he were forced into it by the exigencies of the trial. Defendants could hardly have accounted for their trip to Bridgewater on the night of May 5, nor could they have explained many of their evasions and falsehoods in their examinations of May 5 and 6, without disclosing their intimate association with radicals and radicalism. And the record almost compels the infer­ ence that it would have been difficult, if not impossible, to prevent Sacco from proclaiming his radical opinions from the witness stand. Yet no lawyer could, and defendants' counsel did not, fail to realize the tremendous prejudice which such evidence would be likely to engender. Under these circumstances it was of vital importance that this evidence be offered and argued with the greatest possible skill. The facts must be so introduced as to im­ press the jury with the really dreadful disturbance which the cur­ rent popular attitude and governmental practices against radicals actually produced in the minds of these two defendants; the fear of prosecution and persecution, fear not only of the orderly processes of the law but of illegal physical violence and even of death. To accomplish this there must be a narration of the perti­ nent events in chronological order and in great detail. Counsel made a feeble effort to this end, but were blocked by the trial judge. His Honor exhibited an inexplicable inability to dis­ tinguish between the hearsay and non-hearsay use of utterances; and he seemed to entertain the notion that when the motiva­ tion of an act is in issue only that part of the pertinent knowl­ edge of the actor is admissible which the actor declares to have consciously influenced his action. And counsel did not vigor­ ously insist upon their right to develop this feature of the case on their own theory, by making pertinent offers of proof. The application of this combination of bad law and bad psychology and unskillful trial tactics resulted in a most ineffective presen­ tation of this phase of the defense. A reading of the entire testi­ mony of Sacco and of Vanzetti does not create the impression

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THE LEGACY OF SACCO AND VANZETTI

of suspicion, fear, and dread which on close analysis may be inferred and which might well have been produced by detailed testimony concerning the various events and the discussions in the meetings of radicals as ignorant and mistaken as Sacco him­ self. And neither the argument of Mr. Moore, nor that of Mr. McAnarney was calculated to make the jurors realize that to these defendants the charge of radicalism might have seemed to be quite as dangerous and serious as a charge of murder. Mr. Moore almost expressly stated that the defendants' radicalism had a bearing only upon theif conduct in attempting to get the Boda automo­ bile. Mr. McAnarney did add the suggestion that fear of punish­ ment for their radical views caused the defendants to make false statements to Chief Stewart and to Mr. Katzmann, but he spent most of his time on this subject in insisting that guilt of radicalism did not warrant a verdict of guilty of murder. He may have been driven to this course by the cross-examination. If the District Attorney's purpose was to create in the jurors antipathy and con­ tempt for the defendants, his conduct of their cross-examinations was well-nigh perfect. In Vanzetti's case his emphasis upon the totally irrelevant was confined to a few questions concerning his draft-dodging and his impudence or hypocrisy in daring to issue a call to a public meeting, "Fellow workers, you have fought all the wars. . . . Have you harvested the fruits of your labors, the price of your victories?" This was a promising base for a series of damning queries, but Vanzetti's calm and apparently frank and firm attitude kept Mr. Katzmann within bounds. With Sacco the situation was entirely different. In his direct examination Sacco had said that he had come to America when he was seventeen years of age "because I was liked a free country." This was made the excuse for fourteen pages of sarcastic questioning, introducing a cross-examination covering eighty-one more printed pages. Sacco's professed liking for a free country in 1908 was translated into a love for the United States in 1917-21, and called for ex­ planations of his running away to Mexico under an assumed name to avoid the draft, his return after a few months, and his failure to resume his true name until after the armistice. The advantages he had achieved in this country, his marriage and the birth of his child here, his good wages at skilled work and good food, com­ pared with his low pay and hard labor in Mexico—these by in­ sinuation made his love for this country consist in nothing more than a preference for high wages, congenial work, and good food.

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Thus goaded, Sacco begged an opportunity to explain, and his explanation of his social philosophy, with its obviously mistaken data about men and institutions, could have done nothing toward eliminating the prejudice which his previous answers about his conduct during the war must have created. The really devastating qualities of Katzmann's cross-examination cannot be exposed by summary.* It must be read in whole,53 and even the printed page is inadequate for a reader who has never seen a foreigner handi­ capped by imperfect English under cross-examination by a ruth­ less advocate who insists upon categorical answers, aided by a judge who stupidly protests that he must enforce the formal rules strictly if counsel so insists. In many instances this may result in sympathy for the victim, but when the current emotional preju­ dices are against him and the cross-examination reveals him as an ingrate and a slacker, hatred or contempt is engendered. A prosecutor animated by a desire only to extract the truth would have foregone these tempting opportunities to arouse ir­ relevant antagonisms. An able judge mindful of the necessity of protecting ignorant defendants from the damning effects of their own immaterial absurdities and the inadequacies of their attor­ neys would have been quick to confine the cross-examination on these matters to its narrowest limits. But the record does not re­ veal such a prosecutor or such a judge. Sacco was subjected to a cross-examination which, assuming an able witness, marked the prosecutor as a master in the art. It was skillfully executed in its legitimate searching of the adequacy of the excuses given to ac­ count for the conduct sought to be excused. In its illegitimate aspect it was annihilating; but in this aspect it had no real rele­ vance to any issue actually in dispute. The facts developed and sought to be developed had such a remote bearing on credibility as to be of only infinitesimal value. But they were of a quality to arouse the worst emotions of the average juror of that day against the defendants. And it is difficult, if not impossible, to resist the inference that it was for this quality that they were exposed by the prosecutor. The impression which the record conveys is that counsel for defendants made no adequate preparation for this phase of the case. Had they done so they must have been able to dislodge the court from its untenable position as to the order of evidence and * The cross-examination will be found at reference note 53 to this chapter, pages 523-34.

gB

THE LEGACY OF SACCO AND VANZETTI

as to the right to put before the jury all the information which Sacco and Vanzetti had received regardless of its truth, for the purpose of showing their condition of mind at the time of their arrest and examination. The feeble attempt to develop the testi­ mony logically, and the incoherent efforts to expound the theory upon which the testimony was being offered, are conclusive either of a failure to understand the full significance of this part of the case or of a failure to prepare it competently, or both. The disas­ trous effect of such delinquency was aggravated by the facts that the prosecutor in his cross-examination went far beyond the bounds of good faith, and the trial judge stretched his discretion to its utmost limits in allowing the questions purporting to attack Sacco's credibility. The contrast between Thayer's attitude toward the cross-examination of Sacco and his attitude toward that of Goodridge is most disquieting. Goodridge had recently pleaded guilty to a charge of larcency, his case had been placed "on file," and he had been put on probation. Counsel for defendants desired to develop these facts for the purpose of showing Goodridge's motives to shape his testimony to suit the theory of the prosecution, and thus to ac­ count for the discrepancies between his sworn evidence and his extra-judicial statements. This may be gathered from the record, though no clear offer of proof was ever made to this effect. The court appears to have handled the situation as if counsel were attempting to impeach Goodridge by showing his conviction for a felony. How the trial judge could have been so obtuse is as hard to explain as how counsel could have been so slipshod and care­ less in making the record. The Handling of the Issue of the Fatal Bullet and the Shell.

Not the judge, but counsel for defendants, must be held responsi­ ble for the handling of the issue concerning the bullet and the shell. Bullet No. 3 was admitted without objection. Apparently counsel took it for granted that Dr. Magrath could not be mis­ taken as to its identity, and did not compare the markings on its base with the two marked before it and the one marked after it. In defendants' opening not a word was said about this aspect of the case, although the pistol, the shell, and the bullet were already before the jury. These exhibits were examined by the jurors with the aid of an ordinary magnifying glass. It should require no ar­ gument to convince the most skeptical that a jury of laymen could

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not hope to form a reliable opinion upon such a question by a mere inspection of the objects and without expert assistance. And if argument be required a reading of the testimony furnishes it in ample measure. For example, Captain Proctor testified: "I can't tell one bullet from another, unless I have a proper chance to compare them and measure them, and have lots of time on it. I have had a year to compare these five or six." 64 The record makes it quite clear that most of the pertinent phenomena were not visible to the naked eye. Of course, certain of the marks on the bullet and the shell and certain of the pittings in the pistol barrel and some of the irregularities on the sulphur cast of the core of the barrel could be seen by men of normal vision without the aid of a microscope. But these marks thus visible were not dis­ tinguishing characteristics. Consequently, in order to get even the physical data upon which to base an intelligent opinion, expert assistance was imperative. Measurements so minute were required that a layman could not make them even though equipped with proper instruments, and the jury had no measuring devices of any kind. The jury was therefore dependent upon experts not only as to the deductions to be drawn from the data, but also as to the very existence of the data. How important it was, then, that the expert aid should be honestly, fairly, fully, and intelligently fur­ nished! . The evidence of Captains Proctor and Van Amburgh was given on the eighteenth day of the trial, the thirteenth day of taking evidence. Burns was called on the twenty-fourth day of the trial, and Fitzgerald on the twenty-fifth. Under these circumstances it was essential that these experts for the defense should be ex­ amined with great care, so that the jury might thoroughly under­ stand the facts which the exhibits disclosed and their bearings upon the issue. Read the record, and see the hopelessly confused and disorderly manner in which this testimony was tendered! Compare it with the manner in which the prosecution's evidence was presented. And then contrast the cross-examinations of Burns and Fitzgerald with those of Proctor and Van Amburgh. If the thought arises that expert testimony is frequently offered in dis­ order, to be clarified and systematized in argument, explore the proceedings after the evidence was closed. The only comment by Sacco's counsel, Mr. Moore, upon shells or bullets was:

100

THE LEGACY OF SACCO AND VANZETTI

The issue of the government, you have heard the testimony of the experts pro and con, back and forth. Gentlemen, if the time has come when a microscope must be used to determine whether a human life is going to continue to function or not and when the users of the microscope themselves can't agree, when experts called by the Com­ monwealth and experts called by the defense are sharply defined in their disagreements, then I take it that ordinary men such as you and I should well hesitate to take a human life. Particularly is this true when you consider the fact of the ancestry of these bullets and these shells. Remember that the shells were found on the street. Mr. Bostock said he found three or four, he did not know how many, and he put them, in somebody's desk up at Slater & Morrill's and then Mr. Fraher found them sometime later. He did not know where they came from, except that he found them in the desk, and so on.56 Mr. McAnarney for the defense handled this subject matter as follows: Now, gentlemen, there were experts on revolvers here. You have heard them testify. I am not going to call for an exhibit at all. I will take them as they come. I will take the Colt revolver. We had Van Amburgh. I will call him the "circles" man. He was put on here by the government. He testified, and I don't like these fellows that do this when they are saying something pretty strong, but Van Amburgh said that that No. 3 shell, the fatal bullet that killed Berardelli, came from the .32 Colt. Now, mark that, gentlemen. And he says that the bullet 3, the one the doctors say killed Berardelli came from the Colt revolver that was found on Sacco. That is a fearful statement to make. Now, I challenge the record and I will quote the record to you almost word for word. You know there must be some peculiar outstanding identifying thing about that revolver which would warrant any man in taking that fearful responsi­ bility and that is the responsibility of saying that and making that statement, and what does he say when asked what is that condition? He says that there is a flare back, that the flare back shows on the fir­ ing primer and when you find the primer—and with the most absolute ease and perfect abandonment he says it is not an unusual thing to find in Colt revolvers. Well, good Heavens, he says, gentlemen, "this is the shell that comes from this revolver because of this condition that I find in it," and I want to read now. You may think I am not quoting right. Now, let this answer of the expert's question, let it go out where it came in.

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"The Witness. A set back on a primer is a little flowing back of the metal beyond the true surface. Here is the true surface of the metal, that portion of it which is bearing against the breech block. "Q. What is the breech block? A. That is the point from which the firing pin protrudes. "Q. The firing pin comes through the breech block? A. It does. "Q_. And strikes the cartridge? A. It does. "Q. Similar to the way my finger is now indicating? A. Yes. The set back takes place around the firing pin sometimes. It did in this case. "Q. And what causes the set back? A. Largely, a little opening— in my experience I have found it to be usually a little opening in the mouth of the firing pin hole. Do I make that clear? "Q. Is that something that occurs in all guns? A. It is not an un­ usual thing, but it does not occur in all guns." It is not an unusual thing. Now, something that is not unusual conversely may be a usual thing. It is not an unusual thing. He finds that on this shell, and he says that is the reason how he proves that this is the identical revolver that fired that shell. Will you see where that reason gets you? If he had said it is an unusual thing, it is an uncommon thing, it is something that rarely occurs, the percentage of chances of that occurring are very remote, "and I would feel that on that—and in my experience, my experience it seldom occurs, I feel on that I feel warranted in saying in my opinion this shell came from that revolver." Well, what do you say when the man says it is not an unusual thing to find it? Now, just think whata jump that is? I am putting that fair and square, and I want to look every man in the eye on this panel when this case is through, and I want him to know that I have tried to do my duty, and I want every man here to do his, and I want—when I am giving you that man's statement, I ask you can I do more fairly to him than to ask you to discard such stretch of reasoning as that? He finds another position, that he said there is a marking on the side of the groove caused by a fouling of the barrel. I asked him where he finds the fouling, and he says it is right at the shoulder where the groove and the lands meet. I asked him if that is not where he usually gets fouling in a used revolver. "Yes." I asked him if there is any condition in that revolver that is not usually to be found in a used revolver, and he says "No." For goodness sake, where do we get when men have that elasticity of conscience that men of penetration of mind, that they will jump that fairly large gap and say this is the revolver that fired that fatal shell?66

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THE LEGACY OF SACCO AND VANZETTI

Mr. Katzmann for the prosecution first refuted the suggestion made by the witness Burns that the fatal bullet may have been shot from a Bayard automatic pistol, by showing the conceded variance between the widths of the grooves and lands in the two pistols. He then insisted that the jurors could see by inspection (i) that all the five right-twist bullets found in the autopsies had the same characteristics including indications of slippage when they took the lands, (2) that all the seven U.S. test bullets shot by Burns from Sacco's gun had the same markings, (3) that all the three Winchester test bullets shot by Van Amburgh from Sacco's gun had the same markings, (4) that two of these three Winchester bullets had the same markings as the fatal bullet, including a widening of the grooves, and that the third on close examination showed the same widening. He then insisted that a sulphur cast of the inside of the Sacco pistol barrel, which had been introduced in evidence, had surface irregularities which would cause the im­ perfections manifest in the markings on these bullets. He argued that Burns had used U.S. ammunition in place of Winchester in order that the markings made on the bullets might be different from those on the fatal bullet, and that the results of the test firing of Winchester cartridges by Van Amburgh made this clear. In answer to Moore's argument he said: Some one of learned counsel for the defendant has said that it is coming to a pretty pass when the microscope is used to convict a man of murder. I say heaven speed the day when proof in any important case is dependent upon the magnifying glass and the scientist and is less dependent upon the untrained witness without the microscope. Those things can't be wrong in the hands of a skilled user of a micro­ scope or a magnifying glass. . . . To McAnarney's criticism of Van Amburgh's testimony he replied: Now gentlemen, my good friend McAnarney,-and he is a good friend through seven weeks of hard trial. I am just as fond of him as I was when I started, and heaven knows I was fond of him then—my good friend McAnarney says in his argument, "Why, what does thais [iic] circus man Van Amberg" [jzc]—I don't know what he means by "Circus man Van Amberg," but that is the way he chose to describe him— "What does this circus man Van Amberg say is the identification of bullet No. 3, as being fired from Sacco's Colt?" Why, he says because of the back flow and the primer of the dis-

THE DEDHAM TRIAL

1Q3

charged shells. Absolutely not the fact. Capt. Van Amberg did say it was indicative of a common property, but that it was not of im­ portance. He ascribed as the reason why bullet No. 3, was fired by Sacco's Colt to a wholly different cause, and the answer to it, if you will just examine the exhibits, is within the discernment of your own eyes, and you don't have to trust Van Amberg or anybody else. Use your own eyes and you will see it. . . . What is the reason Capt. Van Amberg gives for saying that bullet No. 3 was fired by the Colt of Sacco? A short statement of his reason is this: Not flow back, gentlemen.—That was a matter of minor detail, common in the primers of cartridges, not the reason that Capt. Van Amberg gave for saying that Sacco's Colt fired bullet No. 3, but the fact that while fouling from rust is a peculiarity of any gun that is not cleaned properly after it is fired and more or less common, the pitting on the inside of the barrel of the Sacco revolver, when you heard speak of "gear" marks, if I was to speak of them at 9 o'clock by the clock and look at 6 o'clock, that is so marked one inch in from the muzzle end at the right hand side of the land that you would there see at 6 o'clock identically the same to what Mr. Burns says was a ten-thousandth of an inch on that sulphur case, [sic] confirmatory absolutely, if you will only use your eyes to see them, of the scoring that would come from the pits caused by ruts [sic; read rust]. Now, what did Capt. Van Amberg say would be the effect of rust pits in a barrel? He said it would cause scoring along the edge of the groove in the bullet. Look, gentlemen, at bullet No. 3, look, gentle­ men of the jury, at the three Winchesters fired at Lowell through the Sacco Colt, and see if you do not find pronounced scorings on the edge. It is just like you took a plane and went along the edge of the groove, and you will find pronounced scoring on one of the bullet grooves common to those four bullets, No. 3, the fatal bullet, and tfye three Winchesters. More than that, I asked you to. eliminate Mr. Fitzgerald. I will ask you to bring him back, not eliminate Mr. Fitzgerald for the moment. The reason is this: He said that he found a great deal of pitting at three of the lands as shown by the sulphur case [iic] from the inside of the Colt barrel more pronounced in the case [sic] of two than in the case of one. I ask you to look again, gentlemen, at that sulphur cast, and what we are talking about as pits show as a sort of pebble eruption on the cast so you would understand that, because if there is an actual pit on the barrel itself, when the sulphur went in it filled it, and when removed it had left a raised portion. I say to you, gentlemen, that there is something still more to be discerned by your eyes as to which no expert has testified, and that

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THE LEGACY OF SACCO AND VANZETTI

is that there are four of the six rifling marks, which are called lands, on the inside of the Sacco Colt that show pitting, one more than the other three, that you will find scoring on the edge of the bullet grooves of the three Winchesters at Lowell and the fatal bullet No. 3, and you will find it more pronounced as to one of the lands, but measure up four, look it over gentlemen, and you can come to but one conclusion with respect to bullet No. 3.57 On this topic the court charged: Now, the Commonwealth claims that there are several distinct pieces of testimony that must be considered upon the question of personal identification. Let us see what they are. First, that the fatal Winchester bullet, marked Exhibit 3, which killed Berardelli, was fired through the barrel of the Colt automatic pistol found upon the defendant Sacco at the time of his arrest. If that is true, that is evidence tending to corroborate the testimony of the witnesses of the Commonwealth that the defendant Sacco was at South Braintree on the 15th day of April, 1920, and it was his pistol that fired the bullet that caused the death of Berardelli. To this effect the Commonwealth introduced the testimony of two witnesses, Messrs. Proctor and Van Amburg [sic]. And on the other hand, the defendants offered testimony of two experts, Messrs. Burns and Fitzgerald, to the effect that the Sacco pistol did not fire the bullet that caused the death of Berardelli. Now, gentlemen, what is the fact, for you must determine this question of fact, and when determined it may be of assistance to you in determining the ultimate fact. Of course, this evidence cannot be considered by you in any manner whatsoever against the defendant Vanzetti unless you find as a fact that he, too, was present aiding and assisting Sacco and the other conspirators in the shooting and killing of Berardelli. . . .58 Thus did court and counsel handle this all-important issue— the one issue where no dependence need be placed upon the weakness of identity testimony or the undependable recollection of witnesses—the one issue as to which the physical data were pres­ ently available and open to proper observation. Even in an ordi­ nary case a jury is entitled to the assistance of counsel in handling evidence. Counsel who offer a witness should see to it that the evidence is presented in such form as to be understandable by the jury and as to convey to the jury the idea which the witness is try­ ing to express. Counsel for the opposition should watch the evi­ dence, note its exact content on vital matters, and make certain that ambiguous language is not used to the detriment of his client.

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In summing up, each counsel should give the jury a painstaking analysis of all the testimony that may not be clear on its face. As regards expert evidence, the jury is entitled to have counsel sepa­ rate for them the data upon which expert opinion is based, from the opinion itself, and to make a searching analysis of the lan­ guage of the opinion so that the jury may not be deceived. In Eng­ land and Canada the trial judge is generally careful to help the jury in this manner, but in the state courts in this country the pre­ siding judge usually gives them no assistance. In this case the observable data as to the shell were examined only in the most casual way. Not the slightest attempt was made to aid the jury by microscopic measurements or other means of exposing identifying characteristics. The question whether that shell was fired in Sacco's pistol was not really tried at all: it was raised, lightly treated, and dismissed. As to the issue concerning the fatal bullet, there was a nearer approach to a trial. But no lawyer can read the record and say that it was well, or even respectably, tried. Indeed, for the defense it was disgracefully bungled. Almost the only physical data which were relied upon were those visible to the naked eye, made some­ what clearer by a low-powered magnifying glass. As to these, even, no emphasis was laid upon exact measurements, and the jury were urged by the prosecution to rest their decision upon their own unaided vision. Counsel for defense paid no attention to the dif­ ferences between the measurements reported by defendants' ex­ perts and those given by experts for the prosecution; and they entirely ignored the startling frailties in the expressed opinions of the state's experts. Captain Proctor's most important opinion was not. touched in cross-examination. No attempt was made to expose to the jury his exact state of mind. His language is, of course, clear on its face, if carefully noted. But it takes no more than ordinary intelli­ gence to realize that the jury might not get accurately the idea expressed in the phrase, "is consistent with," and might give it the effect of a much stronger expression. If the witness were not to be required to give his definition of the phrase, the least that could be expected was an exposition by counsel in his summing-up. In less degree the same is true of Van Amburgh's opinion. Its phraseology showed careful limitation. When one sees counsel for the defense succeed in having the witness so define the word believe as to include doubt, one imagines that the jury will be given the

1θ6

THE LEGACY OF SACCO AND VANZETTI

benefit of this exposition in the portion of the summing-up deal­ ing with the opinion upon the fatal bullet by reading its exact language, pointing out that it is expressed in terms not of belief but of mere inclination to believe, and tying it up to the defini­ tion. But not so. Counsel said not a single word about it. The evidence of Burns and Fitzgerald also was treated as badly in the summing-up as in its presentation. In short, so far as this issue is concerned counsel for defendants might better have been absent. As has been pointed out, the neces­ sary data were not visible to the naked eye. When correspondence between markings in a gun barrel and markings on a bullet de­ pend upon measurements accurate to one-thousandth of an inch, it is useless to talk of using the unaided eye. And yet counsel for Sacco—the defendant whose case might stand or fall on this very issue—urged the jury to disregard the microscope. To this all-im­ portant issue he devoted only two paragraphs of a few sentences each. And counsel for Vanzetti did the absolutely unpardonable. It must be supposed that he did it ignorantly. He palpably mis­ stated Van Amburgh's evidence in two particulars. He assumed that Van Amburgh had expressed a positive opinion, and he as­ serted that he had based it primarily upon the appearance of the shell. Mr. Katzmann's refutation of the assertion not only made the argument for the defense worthless, but left the assumption with the effect of a boomerang to the irreparable damage of both defendants. On a most important issue which required a correct statement of the exact opinions of the opposing experts and a mi­ nute analysis of the data upon which they were based, counsel for defendants did nothing, or rather much worse than nothing. And counsel for the prosecution made the most of the mistakes of the defense. He emphasized the weak spots in the testimony of de­ fendants' experts, he demolished the arguments of defendants' counsel, he ignored Proctor's testimony, and finally insisted that the jury might and should practically disregard the expert testi­ mony and decide upon the phenomena visible to them. The charge of the court throws not the slightest light upon this ques­ tion or upon the testimony respecting it. At best it was colorless and indefinite; at worst it gave a wrong impression of the strength of the testimony of Proctor and Van A'mburgh. The conclusion is obvious and inevitable that in this respect the evidence was not intelligently or intelligibly presented for the defense, its impor­ tance was not appreciated, its strength and defects were not ex-

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plained to the jury; in a word, on this issue there was only the outward appearance of a trial. The Summing-up by Counsel. And finally must be noted the incomprehensible folly of agreeing, and attempting, to cover to the jury in four hours a case in which one hundred sixty-seven witnesses had testified during thirty days of trial. To this must be added the crowning stupidity of failing under these circumstances to divide the field of argument. An opinion as to whether these defendants had a really fair trial might almost be got from a study of the closing speeches of counsel. Had the addresses for defend­ ants been followed by silence on the part of the prosecution they would have been pitiable enough. But when followed by the cleverly devised and beautifully executed argument of the prose­ cuting attorney, they served only as a text for the damnation of their clients. In England or Canada the baneful effect of this dis­ parity would have been minimized by a careful summing up by the trial judge, but no such beneficent action was possible in Mas­ sachusetts. It would be useless to examine these addresses in de­ tail. Their incoherences, their omissions, and their repetitions can be appreciated only by reading them as they appear in pages 2122 to 2179 of the Transcript of the Record. After such a trial and such a summing-up the verdict of the jury is not astonishing. But to account for the verdict is not to say that the defendants were fairly tried. The reader puts down the story of the trial with the feeling of one who has witnessed a game between contestants of unequal ability, a game in which the vic­ tor has won by superior skill in technique, a game in which the spectator must despise the victor for having played unfairly in violation of the spirit of the rules while keeping within their letter as interpreted by an incompetent umpire and referee. And then comes the sickening realization that the story is not the story of a game but of a trial for murder, a trial upon the result of which depended the lives of two men. THE RELATION OF THE PLYMOUTH TRIAL TO THE DEDHAM TRIAL

The charge upon which Sacco was held after his arrest was the murders at South Braintree; that lodged against Vanzetti was the assault at Bridgewater. According to Mr. Katzmann's testimony before the Advisory Committee, the case against Vanzetti was pre­ sented at the first session of the Grand Jury of Plymouth after the

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arrest. There was no regular session of the Grand Jury of Norfolk until September. There was never any substantial evidence to connect Sacco with the Bridgewater affair, and it was not until after Vanzetti's trial at Plymouth that sufficient evidence was ac­ cumulated to support an accusation of Vanzetti's participation in the South Braintree crime. Sacco and Vanzetti were indicted on September 11, and the delay in trying them was due to no fault of the prosecution. The Commonwealth, according to Katzmann, insisted on trying both of them together to avoid a double trial for murders committed in the same affray, and not to make Sacco's conviction more easily obtained because of his association with Vanzetti.69 This explanation has never been satisfactory to the partisans of the defense. They point out that the theory of the Common­ wealth from the beginning was that the same gang had committed both the Bridgewater and the South Braintree crimes. The alibi of Sacco for December 24 was too much to be overcome by the kind of identification testimony the prosecution could produce, but Vanzetti, not having been regularly employed in either De­ cember or April, could furnish no such convincing evidence. His falsehoods had much greater probative value of consciousness of guilt of the South Braintree murders than of the earlier holdup. His trial at Plymouth would necessarily give the prosecution some tactical advantage against him, whether a conviction were secured or not. If he did not go on the stand he would have to rely largely on an alibi. To sustain this he would be forced to call the people with whom he lived or was most closely associated. The prosecu­ tion could take their measure and damage, if not destroy, their value as alibi witnesses in the later case. If Vanzetti testified he would have to disclose the reason for his lies and for his conduct before the Johnson house. This would reveal the theory of Sacco's probable explanation for similar conduct and false statements as well as test the reaction of a jury to their stories. If a conviction were secured it would furnish ground for impeachment of Van­ zetti if he should later take the stand for himself or for Sacco. The tactics of the prosecution throughout these cases demonstrate their determination to secure convictions at any cost. Thus the adher­ ents of the defense reason; they conclude that the action of the Commonwealth in first trying Vanzetti for the less serious crime was taken with the deliberate purpose of prejudicing him and Sacco in the later trial.

THE DEDHAM TRIAL

lOg

That Vanzetti's defense in the trial for murder was materially harmed by the proceedings in the Plymouth trial is beyond ques­ tion. Besides making one or two ambiguous allusions to the Ply­ mouth trial, the prosecution took advantage of its damaging effect by two specific stipulations. (1) Vanzetti's most persuasive evidence at the Dedham trial of his presence in Plymouth at the time of the robbery and murder in South Braintree came from Mrs. Alphonsine Brini,60 her daugh­ ter Le Favre, and one Rosen. Mrs. Brini and her son Beltrando had testified to Vanzetti's presence in Plymouth at the time of the Bridgewater holdup. Before either Mrs. Brini or Le Favre was excused as a witness at Dedham there occurred a consultation at the bench and a conference of attorneys, as a result of which the following was read to the jury: It is agreed by counsel for the Commonwealth and counsel for the defendant as follows: that this witness, Alphonsin Brini has, in another case, testified on behalf of the defendant Vanzetti as to his where­ abouts different from the place set forth in that case.61 The court then made inquiry whether another witness had been sent for, to which Mr. Callahan replied: "No. We are discussing about the daughter, whom we suspended with." Thereupon Mr. Katzmann said: "In view of that agreement made of the matter as a matter of evidence, I don't care for the daughter to remain." 62 In his closing argument to the jury Mr. Katzmann took full ad­ vantage of this incident: But before I discuss the specific testimony relating to alibi, I want to discuss the manner in which an alibi may be put together, and by that I mean no approbrious [sic] term. Take Rosen, take Mrs. Brini— Mrs. Brini, a convenient witness for this defendant Vanzetti. You remember him, gentlemen, that it was stated by agreement of counsel that Mrs. Brini, in whose husband's home the defendant Vanzetti lived the first four years that he ever lived in Plymouth and whose daughter Lefavre, the little 16 year old girl said of Vanzetti that he was the most intimate friend and was like one of the family and there most every evening and once or twice in a day time—Mrs. Brini, it is agreed in another cause when another date was alleged, testified to the whereabouts of this same Vanzetti on that other date there involved, a stock, convenient and ready witness as well as friend of the de­ fendant Vanzetti.63

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THE LEGACY OF SACCO AND VANZETTI

(2) On the twenty-seventh day of the trial, after the reading of the deposition of Giuseppe Andrower for the defense, Mr. Katzmann said: If your Honor please, I desire to read to the jury, after the confer­ ence that was had with counsel for the defendants the following agreement: "The Commonwealth assents to the request of both of the defend­ ants that all evidence heretofore offered in the course of this trial to— [mc] the effect that either or both of said defendants bore the reputa­ tion of being peaceful and law-abiding citizens be stricken from the record of this trial, and that such evidence heretofore offered be entirely dis-garded [sic] by the jury, so that as a result of striking the same from the record there is no evidence before the jury that either or both of said defendants bore the reputation of being a peaceful and law-abiding citizen." 64 On the twenty-eighth day no testimony was taken, and on the twenty-ninth day Vanzetti was called as a witness. The only recorded statements of the reasons for this stipulation are confused and unsatisfactory. In the examination of Mr. Katzmann by Mr. Thompson before the Advisory Committee the following questions and answers appear: Q. [By Mr. Thompson] You knew it was not possible to keep from the jury the fact that Vanzetti had been previously convicted of robbery? A. [By Mr. Katzmann] I did not, and furthermore there was a stipulation made that they should not hear it. Q. And that stipulation was made because if it were not made it would have permitted you to inquire of the alibi witnesses whether they had not testified on a previous occasion differently as to the alibi of Vanzetti? A. Wasn't it what? Judge Grant. That the Court would allow the identifying witnesses to testify, those that testified at Plymouth, would be allowed to testify at Norfolk. The Witness. [Mr. Katzmann] Do you mean if the stipulation were not made? Q. [By Mr- Thompson] Yes. A. [By Mr. Katzmann] I do not recall that. . . . £). Tell us what the reason for that stipulation was. A. I knew what the reason was, I cannot tell you what the conversation was— Q. I am not asking you for any conversation. A. You are asking me for conversation.

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Q. I am not. I am asking you what was the reason, and I am giving you every opportunity to tell us what you want, either by hearsay, or any other way. What was the reason that you and the defendants entered into a stipulation that evidence of good character of either of them should be struck out of that case? A. Because if witnesses were produced as to the good character of a man who had been convicted of another offence it would have opened up the way to cross-examina­ tion upon the Plymouth trial, which neither I, not [«c] the Court, nor the defense wanted opened. Q. Did that apply to Sacco? A . No; and Sacco had witnesses of good character. Q. And don't you recall that every one of them was struck out? A. I do not. If it was it could not have been in connection with the Plymouth trial because Sacco had nothing to do with that.65 In the examination of Judge McAnarney, Mr. Thompson read the stipulation to him, and said: "That was made by the District Attorney. I am trying to show what the circumstances were, if you will permit me to." Q. [By President Lowell] What's your answer? A . [By Judge McAnarney] Well, I have it right here. One or two police officers from Plymouth testified as to Vanzetti's good reputation as I recall it. They had also testified, either one or two of them, at the Bridgewater trial on some aspect of the case as I recall it. I wouldn't be sure, so that they would be termed, Judge Thayer termed them "alibi witnesses." Well, now, the Judge says here that evidence of Vanzetti's good repu­ tation which has gone in is going to stand. "I am going to allow the District Attorney to show that these same people testified for Vanzetti at a previous trial." Q . [By Judge Grant] The Bridgewater trial? A . Yes. Q. [By Mr. Thompson] Vanzetti—after he testified and after he had been convicted and sentenced, did he start serving that sentence, or was the record introduced of his conviction? A. There were exceptions pending. After a few sentences by Mr. Lowell, Mr. Ranney, and Mr. Thompson, Judge McAnarney continued: Exceptions were pending, in fact, Judge Thayer told us that record couldn't be introduced. We went all over that aspect of it. [By President Lowell] I don't quite understand. A . [By Judge McAnarney] He stated there wasn't any question about it at all, that he wouldn't have that record, and then later it was brought in. Q. Any reasons that the Judge suggested why it could be brought in, after instructing that that record couldn't be introduced, then when

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he said it could—any cross-examining of this policeman bringing in evidence? A. Yes. Somewhere in the record one of these so-called alibi witnesses had testified before, then the Judge said "Now, Mr. Katzmann if you want to introduce this other testimony, you may do so." 66 It is obvious that neither Mr. Katzmann nor Judge McAnarney had an accurate recollection of these incidents. Both confused evidence of alibi and evidence of good character. Mr. Katzmann did not remember the inclusion of Sacco. Judge McAnarney was wrong about character evidence by any former alibi witness. Fur­ thermore, there was not and could not have been any objection to cross-examination of an alibi witness as to his testimony on a former occasion and his relations with defendant. It may be that Judge Thayer and counsel believed that Vanzetti's previous con­ viction could not be put in evidence at the Dedham trial for any purpose; but it is highly probable that the judge and prosecutor were thinking of its admissibility as tending to prove guilt, and not as tending merely to impair the credibility of Vanzetti as a witness. And it seems a reasonable, if not an inevitable, conclu­ sion that Vanzetti's counsel would not have entered into such a stipulation for any reason other than to avoid evidence of the record of conviction to impeach Vanzetti. Why the prosecution exacted the same concession from Sacco does not appear. His counsel may have consented because of the belief that the jury would use the evidence not only to discredit Vanzetti's testimony but also as probative of his guilt, and of the guilt of any person found with him, especially one fully armed as Sacco was on the night of his arrest. The wording of the stipula­ tion is very unusual. It puts the onus entirely upon the defend­ ants. The Commonwealth is consenting to their request that the evidence be stricken. The prosecution is not content with the usual statement that the evidence is to be disregarded by the jury. It requires a form of words that may carry the implication that the presumption of good character is gone: "there is no evidence before the jury that either or both of said defendants bore the reputation of being a peaceful and law-abiding citizen." Whether the refusal to grant separate trials injured Sacco is problematical. Had he been tried alone he would in all probability have found it necessary to call Vanzetti as a witness. Had he done so Vanzetti's conviction would have been admissible and some of his lies as to the occurrences on the night of May 5 could have

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113

been shown as prior contradictory statements. The evidence as to participation in the murders was much stronger against Sacco than against Vanzetti. Indeed on the Dedham record alone it seems clear that the joinder of trials did more harm to Vanzetti than to Sacco. It is not inconceivable that, if they had conducted separate, independent defenses instead of standing solidly to­ gether, Vanzetti might have escaped conviction at Dedham. It may well be doubted that the jurors were actually ignorant of his conviction, although every effort may have been made to prevent the facts from formally appearing. But it seems too obvious for argument that both defendants were in a worse position at Ded­ ham than they would have been had no previous trial of Vanzetti been held.

Chapter IV

LEGAL CONTROVERSY, J U L Y , 1 9 2 1 - A U G U S T , 1927 N UMEROUS PROCEEDINGS took place in

the trial court after the ver­ dict. Judge Thayer and the Supreme Judicial Court of Massachu­ setts treated each proceeding and each alleged error and irregu­ larity as if it stood alone; but a more accurate estimate of the char­ acter and validity of the conduct of the trial and subsequent mo­ tions and rulings may be made by examining them in their com­ pleteness. Legally as well as factually it is erroneous to consider each fragment of newly discovered evidence by itself; legally as well as factually it is improper to weigh in the abstract the effect of the prejudice or misconduct of counsel or judge or juror with­ out reference to the circumstances of the particular case. MOTIONS FOR A NEW TRIAL

Eight motions for a new trial were presented to Judge Thayer. The first, on the ground that the verdict was against the weight of the evidence, was filed July 18, igai, argued November 5, and denied December 24. The next five were on grounds of newly discovered evidence. First supplementary motion; the Ripley-Daly motion.

Ripley motion filed November 8, 1921; Daly supplement to this first supplementary motion filed October 1, 1923. Second supplementary motion; the Gould-Pelser motion.

Filed May 4, 1922. Third supplementary motion; the Goodridge motion.

Filed July 22, 1922. Fourth supplementary motion; the Andrews motion.

Filed September 11, 1922. Fifth supplementary motion; the Hamilton-Proctor motion.

Hamilton motion filed April 30, 1923; Proctor addition to this fifth supplementary motion filed November 5, 1923. All five supplementary motions argued October 1, 2, 3 and November 1, 2, and 8, 1923.

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115

All five supplementary motions denied by the trial judge, October i, 1924. Nearly all of these motions were prepared and argued by Fred H. Moore and his associates. The chief exception is the Proctor addition to the fifth supplementary motion. The supporting affi­ davit was filed by William G. Thompson who had unofficially observed much of the case. The argument was by Arthur D. Hill, who was associated with Thompson as attorney for defendants in this motion. The seventh motion, the so-called Medeiros motion, was based on newly discovered evidence tending to show that a gang of criminals, known as the Morelli gang, had committed the mur­ ders at South Braintree; and that the representatives of the Com­ monwealth and of the United States had co-operated in the prose­ cution of the defendants and were in possession of material evi­ dence favorable to the defendants. This motion was filed May 26, 1926, was argued by Mr. Thompson, and was denied October 23. The eighth, based on the alleged prejudice of Judge Thayer, was filed August 6, 1927, and denied two days later. The last seven motions were based upon newly discovered evidence tending to show misconduct of the foreman of the jury, misconduct of the prosecutor, prejudice of the trial judge, and innocence of the defendants. Of these, the eighth, which directly attacked the judge for bias, was overruled pro forma because interposed too late. The facts therein disclosed are so important, however, in evaluating his action in handling the prior motions that they cannot be dis­ regarded. NEW EVIDENCE AND ARGUMENT RELATING TO THE DEDHAM TRIAL

Misconduct of the Foreman, Ripley. There is no question that the foreman, Ripley, was guilty of an irregularity in carrying on his person and exhibiting to some of his fellow jurors several bul­ lets of .38 caliber suitable for an H 8c R revolver of the same model as Vanzetti's. There is room for much speculation as to the use which he made of them, but there is nothing to show with any reasonable degree of probability that his irregular conduct in this respect had any prejudicial effect upon either defendant. Of itself, it could not be seriously considered as a ground for a new trial, and Judge Thayer appears to labor unnecessarily in his efforts to

Il6

THE LEGACY OF SACCO AND VANZETTI

make this plain. He says that he has written an extended opinion because both parties have a right to know his reasons. "One's faith in his decisions should always be an open book to the people of the Commonwealth." 1 He then spends pages in an elucidation of the obvious, but he overlooks completely a much more dam­ aging charge against Ripley. William H. Daly, who had known Ripley for some thirty-eight years and had been meeting him fre­ quently at the Quincy-Adams railroad station during the weeks prior to May 31, 1921, swore that a few days before May 31, 1921, Ripley informed him that Ripley was to sit on the petit jury in Dedham. Whereupon the affiant asked Mr. Ripley if he was going to be a juror in the case of the two "ginneys" charged with murder at South Braintree [meaning Sacco and Vanzetti]. To which question said Ripley answered by saying that he was going to sit on the petit jury. That thereupon the affiant said that he did not believe that they were guilty; that it was not reasonable to suppose that a man would go and rob a factory where he had worked, was well known, and in broad daylight, and thereupon the said Ripley said to the affiant "Damn them, they ought to hang them anyway." 2 If Ripley made this statement it is fair to assume that it repre­ sented his mental attitude toward the case. With this attitude he was, without more, unfit to serve as a juror. And it is not to be forgotten that it was this Ripley who irregularly brought the H & R bullets to the trial. On the other hand, the trial judge con­ ducted the preliminary examination of all jurors, during which he put the following questions: Have you expressed or formed any opinion upon the subject matter alleged in either or both of these indictments? Are you sensible of any bias or prejudice therein?3 It must be assumed, as the Supreme Judicial Court has said, that Ripley answered these in the negative. Since Ripley was dead at the time of the motion the trial judge may well have held that the defendants had not shown by a fair preponderance of the evi­ dence that Ripley had made such a statement. It would have been less disquieting, however, if he had dealt plainly with this serious accusation. Doubtless a mere denial of the motion without opin­ ion would have been sufficient. Doubtless, too, counsel in argu­ ment laid such stress upon Ripley's admitted irregularity. But certainly it sets a reader wondering why Judge Thayer should go

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117

to such lengths to justify "the faith that is in him" on the matter of the mere irregularity and at the same time completely ignore an allegation of the juror's expression of a disqualifying preju­ dice. Yet his action with reference to this motion, standing alone, cannot, with fairness, be harshly criticized, although his protesta­ tions that it would be much easier for him and more consistent with one's natural desire to shift responsibility to others by grant­ ing a new trial have a hollow ring; and his rhetorical platitudes about the rights of jurors and the supposed effect of granting a new trial "in smirching the honor, integrity and good name of twelve honorable jurors" are as unnecesary as they are mislead­ ing. Misconduct of the Prosecutor; the Issue of Radicalism. It has already been suggested that the prosecutor's cross-examination * of Sacco went to the very verge of the permissible. Judge Thayer's treatment of the defendants' objections makes him seem like a creation of Gilbert and Sullivan: Mr. Katzmann [to Sacco]: Is standing by a country when she needs a soldier evidence of love of country? Mr. McAnarney: That I object to, if your Honor please. And I might state now I want my objection to go to this whole line of inter­ rogation. Judge Thayer: I think you opened it up. Mr. McAnarney: No, if your Honor please, I have not. Judge Thayer: It seems to me you have. Are you going to claim much of all the collection of the literature and the books was really in the interest of the United States as well as these people and therefore it has opened up the credibility of the defendant when he claims that all that work was done really for the interest of the United States in getting this literature out of the way? Mr. McAnarney: That claim is not presented in anything tanta­ mount to the language just used by the Court, and in view of the record as it stands at this time I object to this line of inquiry. Judge Thayer: Is that not your claim, that the defendant, as a reason that he has given for going to the Johnson house, that they wanted the automobile to prevent people from being deported and to get this literature all out of the way? Does he not claim that that was done in the interest of the United States, to prevent violation of the law by the distribution of this literature? I understood that was the— . . . * To be found, in full, as reference note 53 to Chapter III, pages 523-34.

Il8

THE LEGACY OF SACCO AND VANZETTI

Mr. McAnarney: Absolutely we have taken no such position as that, and the evidence at this time does not warrant the assumption of that question. Judge Thayer: Then you are not going to make that claim? Mr. McAn&rney: I am going to make whatever claim is legitimate. Judge Thayer: I want to know what that is. You are going to claim in argumentMr. McAnarney: I am going to claim this man and Vanzetti were of that class called Socialists. I am going to claim that riot was running a year ago last April, that men were being deported, that twelve to fifteen hundred were seized in Massachusetts. . . . Judge Thayer: Are you going to claim that what the defendant did was in the interest of the United States? Mr. McAnarney: Your Honor please, I now object to your Honor's statement as prejudicial to the rights of the defendants and ask that this statement be withdrawn from the jury. Judge Thayer: There is no prejudicial remark made that I know of, and none were intended. I simply asked you, sir, whether you propose to offer evidence as to what you said to me. Mr. McAnarney: If your Honor please, the remarks made with reference to the country and whether the acts that he was doing were for the benefit of the country. I can see no other inference to be drawn from those except prejudicial to the defendants. Judge Thayer: Do you intend to make that claim? Mr. McAnarney: What claim, please? Judge Thayer: The one that I am suggesting. Mr. McAnarney: When this evidence is closed, if your Honor please, I shall argue what is legitimate in the case. Judge Thayer: All I ask is this one question, and it will simplify matters very much. Is it your claim that in the collection of the litera­ ture and the books and papers that that was done in the interest of the United States? Mr. McAnarney: No, I make no such broad claim as that. Judge Thayer: Then I will hear you, Mr. Katzmann, on the compe­ tency of this testimony. Mr. Katzmann: I am sorry I did not hear what Mr. McAnarney said. Judge Thayer: Mr. McAnarney says it is not his claim, as I got it, he does not propose to make the claim that the collection and distribu­ tion of this literature was any matter to be done by either or both of the defendants in the interest of the United States. Mr. Katzmann: Then, if your Honor please, I offer the line of crossexamination I have started upon as tending to attack the credibility of this man as a witness. . . .

LEGAL CONTROVERSY, JULY, 1921-AUGUST, 1927

Iig

Judge Thayer: You can't attack a witness's credibility in toto except­ ing concerning some subject matter about which he has testified. Mr. Katzmann: Well, he stated in his direct examination yesterday that he loved a free country, and I offer it to attack that statement made in his examination by his own counsel. Judge Thayer: That is what I supposed, and that is what I sup­ posed that remark meant when it was introduced in this cross-examina­ tion, but counsel now say they don't make that claim. Mr. Katzmann: They say they don't make the claim that gathering up the literature on May 5th at West Bridgewater was for the purpose of helping the country, but that is a different matter, not related to May 5th. Judge Thayer: I will let you inquire further first as to what he meant by the expression.4 In their brief on appeal, defendants argued: In the first place, Sacco had not said on direct examination that he loved the United States, but merely that he "liked a free country." The entire cross-examination on these pages was based upon a wilful perversion of what Sacco obviously meant, and was nothing but an attempt to arouse the most bitter prejudice against him as a pacifist, a slacker, and a Socialist—a prejudice not lessened by the preliminary remarks of the Court (p. 16) already referred to about the "American soldier boy . . . giving up his life on the battlefields of France . . . with undaunted courage and patriotic devotion that brought honor and glory to humanity and the world. . . . He answered the call of the Commonwealth." The assumption underlying all the questions was that a man could not love a free country without at the same time justifying war as an institution—an assumption obviously false, not only logically, but as a matter of human experience, as evidenced by the thousands of otherwise good citizens of this country and Great Britain whose dis­ approval of war on humanitarian grounds put them in violent op­ position to the great mass of their countrymen, and subjected them to hardship and punishment. Sacco's views on this subject may have been unsound, and are believed to have been unsound by the writer of this brief; but their popularity has rapidly increased since 1918. They have been the views of philosophers and religious teachers throughout the ages—of men whose love of country no one dreams of denying—and they were not a proper subject for sneering and contempt in the case of a laboring man on trial for his life. The point is that the purpose of Mr. Katzmann's questions was obviously not the purpose declared by him and accepted by the Court,

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namely, to affect the credibility of Sacco (p. 920), but was simply to excite prejudice. . . . The persistent attempt of the Court in the presence of the jury to suggest that the defendants were claiming that the suppression of the Socialist literature was "in the interest of the United States," to which exception was taken (p. 927), was even more objectionable and pre­ judicial. It seems incredible that the Court could have believed from any testimony that had been given by Vanzetti or Sacco that their purpose in collecting and suppressing the Socialist literature had any­ thing to do with the interest of the United States. If anything had been made plain, it was that they were actuated by personal fear of sharing the fate of Salsedo, not merely deportation, but death by violence while awaiting deportation. Yet the Court eight times, in the face of as many explicit disclaimers from Mr. McAnarney, suggested that that was the defendants' claim. Had that claim been made it would, of course, have been the grossest hypocrisy, and might well have sealed the fate of both defendants with the jury. The repeated suggestion of the Court in the presence of the jury that that was the claim amounted to a violation by the Court of the defendants' ele­ mentary constitutional right to a fair and impartial trial. It was not cured by the Court's disclaimer made immediately after the exception was taken (p. 927) to the effect that he did not intend "to prejudice the rights of either of these defendants." Whatever the Court intended, he had fatally prejudiced their right to a fair trial, and no general disclaimer could undo the harm.6 To these contentions the Supreme Judicial Court answered: These questions as well as the questions relative to the effect on his wife of his possible arrest and deportation for participation in move­ ments inimical to the government, were within the rule that a witness may be cross-examined in the discretion of the judge to test his accu­ racy, veracity or credibility, or to shake his credit by injuring his character, and for this purpose his way of life, his associations, his habits, his prejudices, his physical defects and infirmities, his mental idiosyncrasies, if they affect his capacity, his means of knowledge, powers of discernment, memory and description, may all be relevant. Steph. Ev. c. 16, art. 129. 1 Greenl. Ev. (16th ed.) §446. Wigmore on Ev. (2d ed.) § 944. And the extended colloquy between the trial judge and counsel, more or less explanatory of this course of procedure, does not show as matter of law any abuse of' the judge's discretion. Com­ monwealth v. Savory, 10 Cush. 535. Commonwealth v. Curtis, 97 Mass. 574> 579· Commonwealth v. Clark, 145 Mass. 251. Jennings v. Rooney, 183 Mass. 577. The argument is pressed that the purpose of the district attorney's

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questions obviously was not the purpose declared by him and accepted by the trial judge, namely, to affect the credibility of Sacco, but was to excite and intensify prejudice against him. But we must follow the record, and a careful reading of it does not sustain this contention. Furthermore, the judge specifically instructed the jury: ". . . the radical as well as the conservative, the foreign-born as well as the native-born, are entitled to and should receive in all trials under our laws the same rights, privileges and consideration as the logic of law, reason, sound judgment, justice and common sense demand. I there­ fore beseech you not to allow the fact that the defendants are Italians to influence or prejudice you in the least degree. They are entitled, under the law, to the same rights and considerations as though their ancestors came over in the Mayflower." 6 This seems to put within the discretion of the trial judge the extent of inquiry as to any prior disgracing conduct of a witness. Such a rule obtains in some American jurisdictions. It assumes good faith on the part of the cross-examiner and strict impartial­ ity in the trial judge. On the record as it stood the action of the Supreme Judicial Court in the application of this rule is under­ standable. That it is hardly satisfying, however, is quite apparent from the conduct of others who sat in judgment on the same question. Although the prosecutor at the trial never even intimated that he doubted the sincerity of the alleged radicalism of the defend­ ants, the trial judge interposed a suggestion to that effect in deny­ ing the Gould motion: In other words, the defendants having introduced the subject of radi­ calism to show their fear of deportation or some other punishment because of the falsehood he had told, then the Commonwealth had a right to cross examine for the purpose of showing that his or their beliefs, acts, conduct and the character of the literature they possessed were not of such a character or nature that would subject either of them to deportation or to any other punishment whatsoever.7 That suggestion is one basis of the argument in the Common­ wealth's brief before the Supreme Judicial Court: Radicalism, socialism, radical literature, evasion of the selective service draft, were all subjects which, if connected with Sacco, might prejudice him in the eyes of the jury. But his own counsel opened up this subject for the purpose of rebutting the natural inferences of guilt which must have arisen from his falsehoods. Under such condi­ tions, the presiding judge could do no more than to give the District-

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Attorney full opportunity and latitude to develop this field of inquiry to see whether Sacco's radical views and radical actions were real or feigned to meet this serious inference of guilt which arose from his falsehoods.8

The Advisory Committee accepted this view and elaborated upon it thus: From the statements before the Committee by the Judge and by one of the counsel for the defendants it appears that Judge Thayer sug­ gested, out of the presence of the jury, that the counsel should think seriously before introducing evidence of radicalism which was liable to prejudice, the jury; but at that stage of the case the counsel thought the danger of conviction so great that they put Sacco and Vanzetti on the stand to explain that their behavior at and after their arrest was due to fear for themselves or their friends of deportation or prose­ cution on account of their radical ideas, conduct and associations, and not to consciousness of guilt of the murder at South Braintree. We have already remarked that at the present moment their views on these subjects are well known, but they were not so clear at the time. Save for his association with Vanzetti, and his own word on direct examination, there was, up to the time of cross-examination, in the case of Sacco no certainty that he entertained any such sentiments. The United States authorities, who were hunting for Reds, had found nothing that would justify deportation or other proceedings against either of these men. Except the call for a meeting found in his pocket, there was no evidence that Sacco had taken a prominent part in public meetings, or belonged to any societies of that character; and although wholesale arrests of Reds—fortunately stopped by the deci­ sion of Judge Anderson of the United States Circuit Court—had recently been made in Southeastern Massachusetts, these men had not been among those arrested. At that time of abnormal fear and credulity on the subject little evidence was required to prove that anyone was a dangerous radical. Harmless professors and students in our colleges were accused of dangerous opinions, and it was almost inevitable that anyone who declared himself a radical, possessed of inflammatory literature, would be instantly believed. For these reasons Mr. Katzmann was justified in subjecting Mr. Sacco to a rigorous cross-examina­ tion to determine whether his profession that he and his friends were radicals liable to deportation was true, or was merely assumed for the purpose of the defense. The exceptions taken to his questions were not sustained by the Supreme Court.8

Were this explanation supported by the facts it would be un­ assailable. The record, however, contains a demonstration of its

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invalidity. In the seventh motion for a new trial affidavits of Weyand and Letherman, who had seen long service in the Department of Justice, were submitted in which they stated that the federal files would indicate that there had been a close working agree­ ment between Katzmann and the United States agents at the time the case against Sacco and Vanzetti was prepared and tried. The purpose of this collaboration was said to be twofold: the federal officers were to assist the prosecution by turning up evidence against the two Italians on the criminal charge, and the prosecu­ tion would in turn attempt to get Sacco and Vanzetti to reveal information which might be used in deportation proceedings against their radical associates. As many as twelve agents were at one time assigned to the Sacco-Vanzetti case; some attended the trial, others were used as spies, and an informer was worked into the Sacco-Vanzetti Defense Committee, the organization devoted to financing the defense of the men and publicizing the import of the case. The defense attorneys quite reasonably asked to see the records of the Department of Justice in order to determine whether the file on the Sacco-Vanzetti case contained specific information which, in addition to leading Weyand and Letherman to an in­ formal opinion of innocence, might be used in court to save their clients' lives. Permission was denied by the Attorney General of the United States in a curiously evasive and irresponsible manner. Therefore, claiming the right to use relevant though uncharacterized evidence, a new trial was asked for. Here, at last, Thomp­ son felt that he had proof of the behind-the-scenes activity of a district attorney who had sought a conviction at all costs. In one of the most brilliant arguments of the entire case he tried to bring home to Judge Thayer the overwhelming necessity of producing this ghostly evidence in court: Is there anything so exalted in the office of the Attorney General of the United States that the inference that you draw against other men who hold back documentary evidence should not be drawn in this case? I am not talking about him personally, of course;. I am talking about him in his official capacity. Personally, I have no doubt he is an admirable citizen. But there is some reason of strong policy why those papers are not produced here. What can that reason be? What can it be? Are you going to say because Sacco and Vanzetti are Italians, be­ cause these are poor folks, because they are aliens, because they have no

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constitutional rights we will let Mi>. Sargent [the Attorney General] hold back what might set them free? I had always supposed that he who refused evidence which he could produce, which was traced into his possession, which he does not deny that he has, who impliedly admits it as Dowd [head of the Boston office of the Department of Justice in 1926] did to me— I said, "Will you let me look at the papers?" He said, "I will not." If there had not been any there he would have said, "Certainly, there are not any here." I had always supposed that only one inference was possible to be drawn when a man does not want evidence to be seen, and that is that if it were seen it would be detrimental to his case or in some way to him or to the government that he represents or to the office he holds or to his predecessor or to the transactions of Mitchell Palmer.10 Judge Thayer denied this motion, and in the course of his opin­ ion contradicted his assertions as quoted above from his decision on the Gould motion: Much severe criticism by counsel for the defendants was made of District Attorney Katzman [sic, throughout this passage] because of a reply that he made to the Court when he said he wanted to go into this subject of radicalism in cross-examination for the purpose of testing the credibility of their claim. Severe criticism was made of him because he wanted to ascertain in cross-examination whether or not these men were radicals when he had already been informed by the agents of the Federal Department that they were radicals. This was not Mr. Katzman's purpose at all. It was not necessary for him to cross-examine these defendants for this purpose, because before his cross-examination began, the defendants, in direct examination, told everything that they desired about their radical views and activities and their fear of punishment and deportation. Mr. Katzman crossexamined with one view in mind and that was, to show there was no logical connection between their falsehoods and incriminating conduct on the one side and radicalism on the other. In other words, the cross-examination by Mr. Katzman was carried on with a view of proving to that Jury that the evidence of their consciousness of guilt was more consistent with the murder of these two defendants than it was with radicalism.11 Mr. Katzmann's own testimony before the Advisory Committee also makes it abundantly clear that the prosecution never had any doubts as to Sacco's radicalism: Q. Did these Federal agents at any time before you tried that case tell you in substance that Sacco or Vanzetti—one or both—were radi­ cals? A. I am not prepared to say they did not.

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Q. You knew before you started that trial that they were men holding radical opinions of some sort? A. I do not know how much I knew about that. Q. I am asking you whether it was not a fact before you started trying that case that you knew you were dealing with men who held radical opinions? A. It was a fact perfectly well known that these men were radicals. From the newspapers I knew that very well. Q. You have read the evidence of Weyand and Letherman. You recall that in general they stated there was close co-operation between you and the Federal agents, and your interest arose from the fact that they were radicals. A. I believe I never talked with Mr. Letherman about these men, or with Mr. Weyand. Q. They said you were in correspondence with Mr. West [head of the Boston office of the Department of Justice in 1921], and that you were informed by West that these men were suspected radicals. A. I will repeat what I already stated that I believe that I never wrote a single letter. Q. You had no doubt in your own mind that they were radicals? A. I have already answered that question. Q. So that when you told Judge Thayer that you wanted to find out whether Sacco's radicalism was sincere or pretense that was not exactly true. A. I told nothing to Judge Thayer but the truth during the trial—telling the truth about the substance of the defense—Mr. Vanzetti had been back from New York a week; that he had obtained information, and that there had been no distribution of literature, and that the action of going heavily armed in the Boda car was not for getting literature, or getting places to hide it. Q. Did you argue with the jury that the purpose of getting the Boda car was for the purpose of committing a further crime? AJ Q. I will ask you my question again. You told Judge Thayer, did you not, in answering an objection of Mr. Moore's to your threatening Sacco about his radical newspaper articles, and similar subjects, that you wanted to test the sincerity of his radicalism? A. I don't remem­ ber. The record will tell. Q. If you did say to Judge Thayer your reason for pressing this cross-examination—the kind I have indicated—was because you wished to be sure that Sacco was a genuine radical and not one who was only pretending to be a radical, that was not the correct reason? A. I can­ not tell you how much I knew about Mr. Sacco's political or economic beliefs. I had no interest in them.12 Judge Thayer's chief effort in dealing with the complaint of defendants because of the refusal of the Federal officials to permit inspection of their files was to demonstrate that defendants had

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made no showing that anything in the files would reveal a con­ spiracy between the United States and the Commonwealth: . . . it is fairly clear that counsel does not know what the evidence is. And if this is true, how can the Court find that there is such evidence in existence of any conspiracy that can be produced? Nothing can be produced that has no present existence.13 On the appeal before the Supreme Judicial Court, Mr. Thomp­ son pointed out. that the term "fraudulent conspiracy" was not used by the defense but was the invention of Judge Thayer in his attempt to dispose of eleven important undisputed facts. Of the denial of the motion, taken as a whole, Thompson said, "It is difficult to characterize with sufficient respect such a travesty of the significance of the evidence referred to."14 The adverse decision of the high court again supported the trial judge: [The trial judge] would be compelled to find that no substantial evidence appeared that the Department of Justice of the United States had in its control any proof of the innocence of these defendants, or had conspired to secure their conviction by wrongful means.15 Thus, the significance of evidence bearing heavily upon Katzmann's misconduct was submerged in a needless demonstration that the defendants had failed to disclose the probable existence of evidence tending to show their innocence. Apparently the Supreme Judicial Court's justification of the cross-examination of Sacco did not satisfy the Advisory Commit­ tee: the explanation adopted by that committee had been previ­ ously expressly repudiated by the trial judge, and is flatly incon­ sistent with Mr. Katzmann's own statement. Judge Thayer's apol­ ogia no one can accept, because the vast majority of the objection­ able questions had no possible bearing upon a causal connection between Sacco's view and his suspicion-breeding conduct. The fact then remains that this action of the prosecutor verges upon misconduct, and is to be overlooked only by covering it with the broad mantle of the trial court's discretion. Misconduct of the Prosecutor; the Arrangement with Proctor. A broader mantle, a mantle as enveloping as that of charity itself, is required to cover the prosecution's conduct with reference to Proctor. Proctor's testimony at the trial has been fully discussed

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and carefully analyzed. Its tendency, under the circumstances, to mislead has been shown. That it was deliberately planned to mis­ lead was asserted on the sixth motion for a new trial. In the pro­ ceedings before the Advisory Committee is disclosed the manner in which the defense learned the facts. Albert H. Hamilton, in August, 1923, had a conversation with Proctor, a portion of which was overheard by Mr. Elias Field. Mr. Hamilton insisted that Proctor said that he had told a deliberate falsehood under pres­ sure from the prosecutor's office. Mr. Field did not go quite so far. His version is as follows: Q. [By President Lowell] Will you give again the date? A. August 7, 1923, and almost immediately after there was mention made of this, made of this Sacco-Vanzetti case, Mr. Hamilton said to Capt. Procter [sic, throughout this passage], "I think you ought to know" or "I suppose you know that I have been retained by the defense to study some of the exhibits in that case in connection with the pending mo­ tion for a new trial." And Capt. Procter said in substance, "I don't care. I have been too old in the game, I have been too long in the game, and I'm getting to be too old to want to see a couple of fellows go to the chair for something I don't think they did." Hamilton said in substance: "I have read over your testimony Capt. Procter and I wondered why you didn't go any farther with your examination with respect to the way the death bullet went through that particular gun. I noticed that as far as you went was consistent or it was consistent." Q. [By Judge Grant] Consistent? A. Procter said "If they had asked me any more particularly than that I should have told them I didn't think it went through that gun and I did tell the District Attorney before the trial I thought it was consistent with going through that kind of a gun, but I don't think it went through that gun." Hamilton said "I wonder why the defense didn't take it up." Procter said in substance, "I wondered too, but I suppose they were afraid to." Among the other things that Capt. Procter said was that Katzmann and Wil­ liams had been at him for a long time to get him to express an opinion that the bullet went through that particular gun, and that he had told him [sic] after his experience or examination that he didn't think it did and that thereupon they got this man, Van Amburgh. Q- [By Judge Grant] What's the name? A. Van Amburgh. He was connected with one of the arms factories down at Hartford, Connecti­ cut, and he did come up and they got him to express the opinion that the bullet went through that gun. Procter said that when this man came up the first time he had to show him how to measure a bullet. You realize that I didn't make any contemporary memorandum as to the conversation, but it made considerable impression on me; and I

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went to one of my partners when I came back and told him. I think that is in substance all the conversation I remember.16 Proctor's own affidavit as to the facts states: During the preparation for the trial, my attention was repeatedly called by the District Attorney and his assistants to the question: whether I could find any evidence which would justify the opinion that the particular bullet taken from the body of Berardelli, which came from a Colt automatic pistol, came from the particular Colt automatic pistol taken from Sacco. I used every means available to me for forming an opinion on this subject. I conducted, with Captain Van Amberg, [sic] certain tests at Lowell, about which I testified, consisting in firing certain cartridges through Sacco's pistol. At no time was I able to find any evidence whatever which tended to con­ vince me that the particular model bullet found in Berardelli's body, which came from a Colt automatic pistol, which I think was numbered 3 and had some other exhibit number, came from Sacco's pistol and I so informed the District Attorney and his assistant before the trial. This bullet was what is commonly called a full metal-patch bullet, and although I repeatedly talked over with Captain Van Amberg the scratch or scratches which he claimed tended to identify this bullet as one that must have gone through Sacco's pistol, his statements con­ cerning the identifying marks seemed to me entirely unconvincing. At the trial, the District Attorney did not ask me whether I had found any evidence that the so-called mortal bullet which I have re­ ferred to as number 3 passed through Sacco's pistol, ncir was I asked that question on cross-examination. The District Attorney desired to ask me that question, but I had repeatedly told him that if he did I should be obliged to answer in the negative; consequently, he put to me this question: Q. Have you an opinion as to whether bullet number 3 was fired from the Colt automatic which is in evidence? To which I answered, "I have." He then proceeded. Q. And what is your opinion? A. My opinion is that it is consistent with being fired by that pistol. That is still my opinion for the reason that bullet number 3, in my judgment, passed through some Colt automatic pistol, but I do not intend by that answer to imply that I had found any evidence that the so-called mortal bullet had passed through this particular Colt automatic pistol and the District Attorney well knew that I did not so intend and framed his question accordingly. Had I been asked the direct question: whether I had found any affirmative evidence whatever that this so-called mortal bullet had passed through this particular Sacco's pistol, I should have answered then, as I do now without hesitation, in the negative.17

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On the motion for a new trial the testimony of Hamilton and Field was not offered. Only Proctor's affidavit was presented. In opposition the following sworn statements of Katzmann and Wil­ liams were filed: [By Mr. Katzmann] . . . that the said Captain Proctor examined the four bullets which had been recovered from the body of Berardelli, and the Sacco pistol, in the summer and fall of 1920, and he informed me that three of the said bullets were, in his opinion, fired from a 32 calibre Savage automatic pistol, and that the fourth of said bullets had been fired from a 32 calibre Colt automatic pistol; that later, and prior to his testifying, Captain Proctor told me that he was prepared to testify that the mortal bullet was consistent with having been fired from the Sacco pistol; that I did not repeatedly ask him whether he had found any evidence that the mortal bullet had passed through the Saceo pistol, nor did he repeatedly tell me that if I did ask him that question he would be obliged to reply in the negative.18 [By Mr. Williams] . . . He told me that he had compared these bullets with bullets in his possession which had been pushed by him through various types of pistols, and which had taken the rifling marks of these pistols. He said such comparisons showed that the mortal bullet (later exh. 18) had been fired in a Colt automatic and the other three in a Savage automatic. I asked him if he could tell in what pistol this so-called mortal bullet was fired and he said that he could not although the marks upon it were consistent with its having been fired in the Sacco pistol. He said that all he could do was to determine the width of the landmarks upon the bullet. His attention was not repeatedly called to the question, whether he could find any evidence which would justify the opinion that this bullet came from the Sacco pistol. I conducted the direct examination of Captain Proctor at the trial and asked him the question quoted in his affidavit, "Have you an opinion as to whether bullet number 3 was fired from the Colt automatic which is in evidence?" This question was suggested by Captain Proctor himself as best calculated to give him an opportunity to tell what opinion he had respecting the mortal bullet and its connection with the Sacco pistol. His answer in court was the same answer he had given me personally before.19 Judge Thayer in his memorandum denying the new trial held it unnecessary "to state at length and in detail the contents of the counter-affidavits of Messrs. Katzmann and Williams,—they are clear and convincing." 20 Such a conclusion borders on the ridicu­ lous. The assertion is ventured that no lawyer could honestly find

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these affidavits other than evasive. Had they been framed by per­ sons ignorant of the law and unskilled in the use of English, they might be construed most favorably to the affiants. But considering their origin and the acumen of their creators, no such construc­ tion is possible. Proctor charges that during the preparation for trial his attention was repeatedly called by the District Attorney and his assistants to the question whether he had found any evi­ dence that the mortal bullet had passed through the Sacco pistol; that the District Attorney desired to ask such a question but Proctor "had repeatedly told him he would be obliged to answer in the negative." What does Katzmann answer? That he did not repeatedly ask and Proctor did not repeatedly tell him. No other inference is possible than that such a question and answer were exchanged at least once. And no lawyer of Mr. Katzmann's ability would ever think of putting an expert on the stand without first ascertaining how he would answer such a question. Mr. Williams's affidavit is express to the fact that Proctor could not tell what pistol shot the fatal bullet, and that the question actually put was suggested by Proctor. In short there is no real dispute that the prosecution knew exactly what Proctor's opinion was, and that the form of question was prearranged. The most reasonable in­ ference is that the answer was also prearranged. The evasiveness of these affidavits justifies the suspicion that the reason for the Commonwealth's objection to calling Proctor as a Witness at the hearing was that they did not want to meet him face to face and have all the details of their interviews with him exposed on the record. But whether this be so or not, the damnation of the prose­ cution is just as inevitable. Of course, the question was perfectly proper and called for a perfectly proper answer. But the answer was not a proper answer, and Katzmann knew it, and Williams knew it, and Proctor knew it. To be sure, it contained no word that was false: it was true as far as it went. But the question called for Proctor's opinion; not for a small part of his opinion. The answer, as the examiner and Proctor both knew, was not Proctor's opinion; it was a mere segment of his opinion. It was a partial truth, which constituted a lie. Certainly Proctor in his affidavit charged himself with deliberate and unqualified falsehood and charged the District Attorney and his assistant with being privy to it. Their evasive affidavits, interposed to so serious an accusa­ tion, are the equivalent of an admission of guilt. The inadvertence or negligence or bad judgment of defendants' counsel at the trial

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in failing to discover the stratagem cannot excuse such conduct. The fact that it succeeded is its dearest fault. That the Supreme Judicial Court affirmed the trial court's action in denying a new trial does not mean that it agreed with his findings or the mental processes by which he reached them. Its language in this particular is very circumspect: "The burden was on the defendants to establish wilful misconduct of the prosecuting officers by a fair preponderance of the evidence and the conclusion of the judge that this burden had not been sus­ tained cannot as matter of law be set aside by us." 21 The Advisory Committee treats this aspect of the problem very cryptically: "It does not seem to us that there is good ground to suppose that his [Proctor's] answer was designed to mislead the jury."22 It may be presumptuous to say that it would strain the credulity of the most credulous to assume both intelligence and honesty in the trial judge's finding, supported as it is by this assertion of this eminent committee. Yet frankness compels the statement. Proctor's testi­ mony appears in the record. His affidavit shows his real opinion: his testimony was a mere misleading fragment thereof. To doubt that the District Attorney and his assistant were fully aware of Proctor's real opinion and of the deceptive character of his testi­ mony is to charge them with an intellectual incapacity which the whole record most emphatically belies. The plain truth is that the cross-examination of Sacco and the Proctor incident are of a piece. Taken together they constitute monstrous misconduct which no discretionary power of a trial judge should be allowed to conceal or condone. NEW EVIDENCE RELATING TO THE INNOCENCE OF THE DEFENDANTS

Whether the actions of Ripley, Proctor, and the prosecutor con­ stituted fatally prejudicial error or not, they cannot be totally disregarded. They form a background against which must be con­ sidered the newly discovered evidence bearing more directly upon the innocence of the accused. This consisted of further impeach­ ment of the witnesses, Andrews, Pelser, Splaine, and Goodridge, direct testimony of identification by Kennedy, Kelly, and Gould, additional expert information concerning the fatal shell and bul­ let, and positive statements of the non-participation of Sacco and Vanzetti in the crime by an alleged participant, Medeiros.

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The Presence 0/ Sacco in South Braintree before the Shooting.

It -will be remembered that the state produced only three wit­ nesses who swore to seeing Sacco in South Braintree shortly before the shooting. Of these, Heron and Tracy had no opportunity for accurate observation. Mrs. Andrews alone claimed to have had a conversation with him. On September 9, 1922, she made one affidavit to the effect that her testimony was unqualifiedly false; and on September 11, 1922, another that her statement of January 14, 1921, which she had practically repudiated at the trial, was true. On January 9, 1923, in the presence of Mr. Katzmann, Mr. Williams, and a deputy sheriff, she asserted under oath that these affidavits had been procured by threats of Mr. Moore and his satellites to expose certain disgraceful events in her past life, and that her testimony at the trial was in accord with the facts. It is undisputed that she had been informed of Moore's investigation by her nineteen-year-old son, who had come from Maine and had telephoned her from the Essex Hotel to meet him at the hotel; that the meeting with Moore was arranged by two representatives of organized labor who questioned her about her testimony; that at the meeting in Moore's home they, her son, Moore, and a stenographer were present, that Moore read to her one of the affidavits that he had procured from a judge in Maine stating that in 19x3 or χ914 he had awarded the custody of the son to one Hunt, on the ground of Mrs. Andrews's bad reputation; and that the meeting lasted from about 10:30 P.M. of September 8 to 2:00 A.M. of September 9. Certainly these circumstances, to say nothing of Mrs. Andrews's version of the occurrences, reflect no credit upon Mr. Moore; they demonstrate that he was an ass; they raise the suspicion that he was a knave. They justify Judge Thayer's condemnation of his conduct. But just as certainly the affidavits of September 9, 1922, September xx, 1922, and January 9, 1923, in connection with the testimony by and concerning Mrs. An­ drews at the trial, are conclusive that she is and was totally un­ worthy of belief. No rational person would punish a stray dog in reliance upon the word of such a woman. By cross-examination and direct impeachment she was badly shaken at the trial; by the additional evidence her credibility was annihilated. And this was the witness of whom Mr. Katzmann said to the jury: "I have been in this office, gentlemen, for now more than 1 χ years. I cannot recall in that too long service for the Commonwealth that ever before I have laid eye or given ear to so convincing a witness as

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Lola Andrews." 23 This was flagrant misconduct. It was the equiv­ alent of giving testimony, incompetent if offered as such, and not under oath or subject to cross-examination.24 Surely it would have required not only a disregard of profes­ sional ethics but also unusual temerity in a prosecutor to repeat such a statement at a new trial, even with no testimony by other witnesses as to the men about the bandit car. With the new evi­ dence secured from Minnie Kennedy and Louise Kelly, the mis­ takes, or worse, of Mrs. Andrews become doubly clear. These women were working on the first floor of the building in front of which the bandit car was parked. Through an open window they saw the man who repeatedly inspected the engine and who stood near the car smoking. He was only about ten feet from them and remained under their observation for approximately half an hour. Both were sure that Sacco was not the man. The only reason for believing that this new evidence of Mrs. Andrews's unreliability and her mistake in identifying Sacco would not seriously influence a jury is that the first jury could not have been moved at all by her original testimony. But if they did not credit her story they could not have used the testimony of Heron and Tracy as other than the lightest of makeweights. Nevertheless, were this the only ground for a new trial, it would be unseemly to condemn a trial judge for accepting this view and concluding that the newly discovered evidence was merely cumu­ lative. The Presence of Sacco at the Shooting. Pelser was the only witness to identify Sacco as the shooter of Berardelli. On February 4, 1922, he made oath, in response to questions put to him by Mr. Moore, that portions of his testimony were false, that he saw no shooting, and that the view which he had through the window was so imperfect that he could not recognize any person whom he did see. In effect, he corroborated the testimony of his fellow workmen at the trial. He intimated that he had yielded to some vague sort of influence of Mr. Williams. On February 6 he wrote to Mr. Katzmann that he had been prevailed upon by Moore and others to repudiate his testimony. On February 12, in a sworn statement to Mr. Williams, he said that he had been drinking on February 4, and did not know exactly what he was saying to Mr. Moore. In general terms he reaffirmed his story at the trial, but he was somewhat troubled about having used the phrase "dead

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image" in identifying Sacco, and he said positively again to Mr. Williams that he did not see any shooting: "Q. You said on the stand, Mr. Pelser, as I recall, that you were standing there at the window and saw one or more of the shots. Now, that was true, wasn't it? A. I didn't see any shots." 25 The least that can be said is that his affidavits make it clear to a demonstration that his testi­ mony was and is totally untrustworthy. Here again, however, the newly discovered evidence is merely cumulative; of itself, it did not require a new trial. The Presence of Sacco at South Braintree after the Shooting. Mary Splaine did none too well at the trial. She seems all too clearly to have been the victim of suggestion. After the trial it was discovered that on April 20, 1921, just five days after the event, she identified a picture of "Tony, the Wop" as that of the man whom she saw do the shooting. She repeated this identifica­ tion three days later in Captain Proctor's office. On June 2, 1926, she is alleged to have stated that a picture of Joseph Morelli was a picture of that man; but this she denies. In her later affidavits she insists upon the size of Sacco's hand as a chief identifying characteristic. From her position in a second-story window about sixty feet from the street she particularly observed the large left hand of the bandit in the automobile. And it is undisputed that Sacco's left hand was not large—he wore comfortably on that hand a short-fingered glove of less than the average size for men—a Cadet glove, size 7¾. Carlos E. Goodridge was thoroughly discredited at the trial. Among other things he was asked, "Are you not a defendant in a criminal case in this court?" An objection was sustained. The argument and ruling concerned only the propriety of this ques­ tion. The trial transcript shows a later conference at the bench but nothing as to what happened there. The bill of exceptions discloses that counsel for the defense then informed the Court that they had files of the clerk's office showing that Goodridge had been charged with grand larceny and had pleaded guilty, that his case had been filed, and that he had been put on proba­ tion. They apparently desired to show these facts as a basis for the argument to the jury that he was virtually at the mercy of the prosecutor and likely to frame his testimony to fit what he be­ lieved to be the prosecutor's desires. Judge Thayer adhered to his ruling. The Supreme Judicial Court sustained him because

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there was no evidence that Goodridge had been promised this disposition of his case if he would testify for the Commonwealth. Newly discovered evidence demonstrated that the commission of grand larceny by Goodridge reflected his true character. It tended also to show that no prosecutor with knowledge of the facts and with any regard for the public welfare could have recommended probation. No matter what may be thought of Moore's contemp­ tible treatment of Goodridge in attempting to secure from him a repudiation of his testimony at the trial, the facts remain: Goodridge was using an assumed name; in 1893 he had been sentenced to the reformatory-at Elmira, New York, for larceny of two gold watches; in igo8 he had been sent to the penitentiary at Auburn, New York, for larceny of money; in 1909 he had been divorced by his wife for adultery; in 1911 he had been indicted for further larceny in New York, but had fled; in 1913 he had been impli­ cated in a questionable fire with the obvious intent to defraud an insurance company; he had lived in Vermont under various aliases with a woman not his wife; he had committed perjury to obtain a license to marry the second time; in 1919 he had been divorced by his second wife for cruel and inhuman treatment. In short, he was a confirmed scoundrel, to whom perjury in the hope of escaping a prison sentence would cause no hesitation. Splaine and Goodridge were two of the three persons who iden­ tified Sacco as an occupant of the bandit car immediately after the shooting. With their testimony completely discredited and with Devlin's evidence impeached, as it was, the fresh evidence of Gould assumes importance. At the time of the robbery Gould was in Pearl Street near the railroad tracks. The man whom Splaine, Devlin, and Goodridge identified as Sacco fired a shot at him. The bullet went through his overcoat. The shooter was not more than ten feet distant from him. He was positive in his assertion that the shooter was not Sacco. Like the evidence concerning Sacco's alleged presence in South Braintree before the robbery and his alleged participation in the actual killing, this new matter bearing upon his later alleged con­ duct in the bandit car may be characterized as cumulative and therefore not of itself compelling a new trial. Measurements of the Bullet and the Shell. At the trial it was common ground that the "Fraher" shell exhibited no characteris­ tics determinative of the identity of the gun in which it was fired.

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Of the fatal bullet, no precisely accurate measurements were made or discussed. As suggested in the review of the evidence, the issue of identity of the fatal bullet was formally raised and tried but in reality bungled and mistried, and the issue of identity of the shell was not tried at all. After the trial the defense brought in two new experts, Albert H. Hamilton and Augustus H. Gill. Hamilton's paper record was impressive. He was a "micro-chemical investigator and crimi­ nologist"; he had been an expert witness in 165 homicide cases, in the great majority of which he had testified for the prosecution. Gill was Professor of Technical Chemical Analysis at the Massa­ chusetts Institute of Technology. He had had no experience in criminology but was an expert in precision measurement. Proctor had died, but Van Amburgh was still available. And Merton A. Robinson was retained by the Commonwealth. He was a ballistic engineer with the Winchester Repeating Arms Company, of nine­ teen years' experience. Although Hamilton had been brought into the case by Moore, Moore seems to have taken no part in the motions based upon the new expert ballistic testimony. In the fifth supplementary motion the McAnarney brothers appeared for Vanzetti and Mr. William G. Thompson for both defendants. Mr. Thompson later became leading counsel for the defense and remained in charge until after the report of the Advisory Committee. Mr. Thompson was one of the most distinguished members of the Massachusetts bar, respected for his learning, courage, and unswerving integrity; at the time he was Chairman of the Committee on Grievances of the Boston Bar Association. The fatal bullet was examined and photographed under highpowered microscopes by these experts and the measurements made as a result thereof were presented to the court. If the meas­ urements made by Hamilton and Gill were accurate and their deductions justified, Sacco's gun could not possibly have fired that bullet. If Van Amburgh and Robinson were correct, Sacco's gun probably did fire it. But the deductions of none of these wit­ nesses were based upon the measurements submitted to the jury. All were based upon new and more accurate examinations. With new data and with expert opinion diametrically opposed, how could the testimony be evaluated on paper? As to the "Fraher" shell, all the new expert evidence agreed that the marks upon it were accurate means of identifying the gun in which it had been

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exploded. All the experts agreed as to the existence of certain marks upon this shell and the omission of them from other shells known to have been fired in Sacco's pistol. They disagreed vio­ lently as to the explanation for the omissions and as to the inter­ pretation to be placed upon the correspondences and differences. Here then was raised a brand-new issue in the case—an issue the determination of which would weigh heavily with any rational trier. Of three possible solutions, two would be decisive for the defendants. If Hamilton and Gill were right, Sacco's innocence of firing the fatal bullet was demonstrated; if no determination could be made, Sacco must be given the benefit of the doubt. And what did the trial judge do? He found "that the defendants have not maintained by a fair preponderance of the evidence that there is any individuality in the location of the firing pin indentation on the primer or in the flow-back of the metal around the firing pin indentation, as affirmed by Mr. Hamilton";26 as to the in­ dividuality of a gouge near the end of the firing pin in Sacco's pistol, he was "not convinced that the claim of Mr. Hamilton is correct," 27 and therefore "the defendants have not maintained the burden of proof that the law requires"; 28 as to the individuality of the ejector and breechblock marks, he found "that Mr. Hamil­ ton's claim on this issue has not been sustained, and, therefore, the burden of proof that the law placed upon these defendants has not been maintained." 29 In short, he seems to have required the defendants first to convince him that their contention was cor­ rect, whereas before a jury they would have had only to raise a reasonable doubt of the validity of the prosecution's contention. He did not find that the experts for the prosecution were right, but he denied the motion for a new trial. The Supreme Judicial Court, seeming to consider the above-quoted statements as "mere reasoning on the evidentiary value" of the newly discovered evi­ dence, held his ruling no abuse of discretion.30 THE MEDEIROS CONFESSION

On November 18, 1925, Celestino F. Medeiros, then in the jail at Dedham, sent to Sacco through a jail messenger a note reading: "I hear by confess to being in the South Braintree shoe company crime and Sacco and Vanzetti was not in said crime." This, of course, called for extensive investigation. Mr. Thomp­ son called to his aid Mr. Herbert B. Ehrmann, an able, vigorous,

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THE LEGACY OF SACCO AND VANZETTI

younger member of the Boston bar. Using the statements of Medeiros as clues, these two conducted an amazingly thorough search for facts tending to connect the Morelli gang with the murder of Berardelli and Parmenter, and presented the results to Judge Thayer in a motion for a new trial filed on May 26, 1926. Medeiros was doubtless a person whose previous record cast tre­ mendous doubts upon his credibility as a witness. He was, indeed, "a crook, a thief, a robber, a liar, a rum-runner, a 'bouncer' in a house of ill-fame, a smuggler, and a man who had been convicted and sentenced to death for . . . murder. . . ." ai The note to Sacco was written while his motion for a new trial after conviction of the murder of Carpenter, a bank cashier, was pending. His later assertions were to the effect that a gang of professional crimi­ nals had committed the South Braintree murder and robbery, that he was present in the bandit car, and that neither Sacco nor Vanzetti was in any way implicated in the crime. Supporting affi­ davits from numerous persons made it clear that the Morelli gang might have done the job. And it was agreed that if the Morellis were guilty, Sacco and Vanzetti were innocent. It was undisputed that the Morellis were desperate criminals; that they had engaged in the stealing of shipments of shoes which had been shipped from Slater and Morrill and Rice and Hutchins of South Braintree; that all but two of them were at liberty on April 15, 1920; that they were then engaged in litigation from which their need of money might well be inferred; that Joe Morelli bore a re­ semblance to Sacco; that when accused of this crime they gave false alibis; and that one of them, when approached by an officer nine days after the South Braintree murder, attempted to draw a gun, and another lied to him to explain the use of the same auto­ mobile numbers on different cars. There was evidence justifying a finding that Medeiros had worked with the Morelli gang on previous occasions; that after the South Braintree affair he had a sum of money which would have constituted his fair portion of its proceeds; and that the Morellis were armed with pistols of a type that might have been used in the murder of Parmenter and Berardelli. There were details in which the Medeiros statement was faulty; but, with the corroborating affidavits, it made a much stronger case against the Morelli gang than against Sacco and Vanzetti, and harmonized some of the testimony that had been difficult to explain. Still, in view of the character of Medeiros and the circumstances of the confession, it is conceivable that an

LEGAL CONTROVERSY, JULY, I92I-AUGUST, I927

I39

honest judge might believe that no jury would give the slightest credence to Medeiros, and would not be much influenced by the new evidence from other sources. Consequently it must again be said that, considered by itself, this mass of new material did not, under the generally accepted rules of law, absolutely require a new trial. THE AGGREGATE EFFECT OF THE NEW EVIDENCE AND ARGUMENT

Neither the trial judge nor the Supreme Judicial Court dis­ cussed the aggregate effect of the newly discovered evidence. The Advisory Committee after comment on portions of it announced that, "after considering all the evidence given in support of the various motions for a new trial," 32 they were of the opinion that it was insufficient. In this connection it must be remembered that the test is not whether the new material would have required a different verdict, but whether it was "weighty and of such nature as to its credibility, potency, and pertinency to fundamental issues in the case as to be worthy of careful consideration," 33 or of "so grave, material, and relevant a character as to afford a probability that it would be a real factor with the jury in reaching a deci­ sion." 34 Whether it satisfied such a test must be a question of judgment. The trial judge, purporting to exercise his judgment, found that it did not meet the test. The members of the Advisory Committee, purporting to exercise their independent judgment, found likewise. If the conclusion of the trial judge is to be weighed by the reasons which he advanced to support it, no one need hesitate to disagree. Indeed, no one need hesitate to say that his decision is no evidence that reasonable minds might differ on the question. He does not consider whether this new material, weighed with the evidence given at the trial and that since dis­ covered and brought to his attention in previous proceedings, would be or would probably be a real factor with a new jury in reaching a decision. Instead he confines himself to a discussion of those portions of it which might influence a jury to discredit it. It is difficult not to agree with the contention of Thompson and Ehrmann that he ignores every agreed fact, every undisputed fact, and every statement in any affidavit, tending to establish the truth of Medeiros' confession or the contention of the defendants with reference to the Federal

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THE LEGACY OF SACCO AND VANZETTI

agents; seems to think it encumbent upon him to offset the general fairness of the Assistant District Attorney by advancing in behalf of the Government a great variety of untenable and unfair contentions; and in general assumes the attitude of an importunate advocate against the accused. And he further buttresses his arguments, as al­ ready pointed out, by statements of fact inconsistent with the agreed facts, by misstating the argument of defendants' counsel, and by dis­ cussing issues which the parties had agreed to eliminate.35 Mr. Justice (then Professor) Frankfurter's estimate of it is not without ample foundation: Speaking from a considerable experience as a prosecuting officer, whose special task it was for a time to sustain on appeal convictions for the Government, and whose scientific duties since have led to the examination of a great number of records and the opinions based thereon, I assert with deep regret but without the slightest fear of disproof, that certainly in modern times Judge Thayer's opinion stands unmatched, happily, for discrepancies between what the record discloses and what the opinion conveys. His 25,000-word document cannot accurately be described otherwise than as a farrago of mis­ quotations, misrepresentations, suppressions, and mutilations. The disinterested inquirer could not possibly derive from it a true knowl­ edge of the new evidence that was submitted to him as the basis for a new trial. The opinion is literally honeycombed with demonstrable errors, and infused by a spirit alien to judicial utterance.36 The Supreme Judicial Court was constrained to find grounds for supporting him not set forth in his opinion, and to rely upon the generalization that the result might have been reached in the exercise of sound discretion. The members of the Advisory Committee gave no analysis of the processes which brought them to their determination. It would be a rash commentator who would assert that men of such learning, character, and distinction had pronounced a judgment which no reasonable man could honestly utter. This is doubly true when the members of the Supreme Judicial Court have expressly and officially asserted the contrary. And yet it cannot but be regretted that neither the Committee nor the Supreme Judicial Court saw fit to make an analysis of the newly discovered evidence which would demon­ strate its worthlessness. In handling this material it must ever be remembered that it is to be weighed with the testimony actually given at the trial. If the analysis in the earlier part of this study even approaches ac-

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141

curacy, it must be apparent that the guilt of defendants was at least highly problematical and the prejudicial effect of the testi­ mony was greatly increased by the questionable conduct of the prosecutor and the amazing stupidity of counsel for the accused. It must be assumed that these errors would not be repeated. With­ out them any jury would be hard put to it to find defendants guilty beyond a reasonable doubt. It will not do to say that the jury disregarded the evidence as to the identification of Sacco. Certainly the prosecutor placed much reliance upon Andrews, Pelser, Splaine, and Goodridge. No one can read the new evidence concerning them and say that it did not practically remove them from the category of credible witnesses. Much less could one say that it would not be a real factor with a jury in considering this aspect of the case. Surely no juror could find that Sacco was about the automobile before the shooting; surely no juror could find that Pelser saw Sacco; surely Gould's testimony confirming that of Mrs. Liscomb would have prevented the jury from believing the identification testimony of Splaine and Devlin. In a word, the originally unsatisfactory testimony of identification had been so diluted by the new evidence that any reasonable jury would be compelled to find it insufficient. Certainly if that evidence were treated as the trial judge and the Supreme Judicial Court treated the newly discovered material, piece by piece, it could serve as no legitimate basis for a verdict of guilt. Certainly its extremest value to the prosecution would be that it was not inconsistent with Sacco's guilt. Had Joe Morelli been on trial in place of Sacco, considering the resemblance between them disclosed by the new evidence, the identification evidence would have been at least as strong against him as against Sacco. With the testimony of Medeiros, corroborated as it was by motive, and the opportunity and history of the Morelli gang, there would have been abundant evidence to convict him, for the credibility of Medeiros would have been a question for the jury. Under these circumstances how could one reasonably find that this mass of new evidence was not of "such nature as to its credibility, potency, and pertinency to fundamental issues in the case as to be worthy of careful con­ sideration"? When to the foregoing is added the new expert testimony con­ cerning the bullet and the shell, it seems inconceivable that any unbiased judge could solemnly declare that the new material would not probably "be a real factor with the jury in reaching

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a decision." Both Judge Thayer and the Advisory Committee seemed to prefer Van Amburgh's views to those of Hamilton, and to act as if that were determinative of the question. Judge Thayer even asserted that the issue concerning the bullet was fully and ably litigated at the trial. By this assertion he condemned himself as utterly devoid of judgment to anyone who has analyzed the record. That issue was miserably half tried; the issue concerning the shell was entirely neglected. No one can doubt the high im­ portance of these issues. And the question was, not how Judge Thayer or the distinguished members of the Committee would react to this new testimony, but whether in all fairness a new jury would use it as a real factor in reaching a decision. How Mr. Hamilton would appear on the stand is not manifest. The difference in tone between Mr. Van Amburgh in an affidavit not subject to cross-examination and Mr. Van Amburgh on the stand subject to cross-examination is most striking. His assurance in the affidavit is equaled only by his diffidently expressed uncer­ tainty on the stand. This vitally important testimony on these all but decisive issues was essentially material for a jury. And with all due respect for the Advisory Committee and the Supreme Judicial Court, it passes understanding how a different deter­ mination could be rationally made. THE PREJUDICE OF THE TRIAL JUDGE

Under the English and Canadian systems, the trial judge is expected to give close attention to the evidence. He is permitted, if not expected, to comment upon the weight of the evidence and credibility of the witnesses, and to allow the jury to know his opinion upon the merits. He directs them as to the law; he ad­ vises them on the facts. It is, perhaps, for this reason that he does not pass upon motions for a new trial. He has become so thor­ oughly involved in the original decision that his capacity for exer­ cising an unbiased judgment has become seriously, if not fatally, affected. In most of our states, including Massachusetts, the judge is not permitted to comment upon the weight or credibility of the evidence or to let the jury know his opinion; his function is to instruct them as to the law. Consequently he ordinarily pays less attention to the facts. No doubt he usually forms some opinion as to the merits; but having no responsibility with refer­ ence thereto, he is not likely to acquire so fixed a conviction as

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143

to interfere greatly with his ability to give unprejudiced consider­ ation to a motion for a new trial. It is important that he should approach such a motion with a fair and impartial attitude, par­ ticularly in states like Massachusetts, where so much lies within his almost uncontrolled discretion. If his ruling is such that it might have been made by any conscientious judge acting intelli­ gently and honestly, it is final. Conscience, intelligence, and hon­ esty are assumed; and a strong showing is required to overcome the assumption. Did Judge Thayer approach these motions in such an attitude? If his written word is to be trusted, only the overpowering sense of stern duty dictated his decisions. In denying the motion for a new trial on the ground that the verdict was not sustained by the evidence, he declared: In conclusion let me say I have given these motions my best considera­ tion. I have tried to follow the pathway of judicial duty and have never lost sight of the fact that the judge is governed by laws and should obey them to the same extent as should the individual. I can­ not—as I must if I disturb these verdicts—announce to the world that these twelve jurors, violated the sanctity of their oaths, threw to the four winds of bias and prejudice their honor, judgment, reason and conscience, and thereby abused the solemn trust reposed in them by the law as well as by the Court. And all for what purpose? To take away the lives of two human beings created by their own God. The human frailities [stc] of man, his tender regard and love for human life and his profound sympathy for his fellow-men, when charged with the gravest offense known to the law, repudiates the suggestion.37 In his ruling on the first supplementary motion, the same high purpose was controlling: To grant motion for new trials on this motion would be, on my part, an arbitrary exercise of a judicial discretion uncontrolled by sound principles of law and a high sense of justice, because I would take away, without legal justification, rights that clearly belonged to the Commonwealth. To take away arbitrarily rights that belonged to the Commonwealth is just as unfair and unwarranted in law as it is to take away rights that belong to the defendants, for the rights of each stand upon the same foundation of absolute equality. For this reason, the court charged the jury, just before retiring to their room that "they (the jury), with unflinching impartiality and courage, must stand be­ tween the Commonwealth and these defendants, guarding and protect­ ing the rights of each, in order that truth and justice should be estab-

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lished." The law places this same solemn responsibility and duty upon me at the present time. Again, if this motion should be arbitrarily granted, it would mean that every verdict would be unsafe if perchance one of the jurors should happen to be taken away. Still again, if this motion for a new trial based upon the hearsay statements made by a decreased [sic] juror to a counsel for the defendants under such circumstances as are herein disclosed, [were granted] it would result in smirching the honor, integrity and good name of twelve honorable jurors, by a decision that never could be justified because it would not be "controlled by either the sound principles of law" nor by the simplest rules of sound judgment,, reason, truth, and common sense.38 In disposing of the Gould-Pelser motion, duty only was his guide: . . . Now what should be my duty? If jurors should be controlled by the law in the ascertainment of the truth; and the ascertainment of the truth is their supreme command of the law, then the presiding justice should be equally controlled by the rules of law, and should unflinchingly obey them, for herein lies the safety and security of the people of the Commonwealth in the enjoyment of their lives, liberties and properties. To grant a motion in these cases upon the affidavit of Andrews, Goodridge or Pelser, as they were procured, would be a reflection not only upon the court, but a great injury as well to the ethics of the legal profession throughout the Commonwealth. To set aside the verdicts of this jury on the McAnarney, Proctor and Gould affidavits, so weak, so unsatisfactory and unconvincing as they were, would result in sacrificing not only the rights of the people of the Com­ monwealth, but the rights of the jurors themselves, and such act on my part could not be said to be controlled by the sound rules of the law, nor would it be governed by reason, logic, conscience, or sound judgment.89 In deciding the Proctor-Hamilton motion he refused to yield to sentiment and sympathy: Of course I could set aside these verdicts by yielding to sentiment and sympathy for the unfortunate and by sacrificing the rights of the Commonwealth, but if I should so do my decision would not rest upon sound judgment or reason nor [be] controlled by Law. Therefore, it becomes my solemn duty to see to it that the law reigneth supreme, for upon the law and obedience to law must depend the peace, safety and security of the people of the Commonwealth.40

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I45

And in his final action upon the Medeiros motion, his rigorous devotion to his judicial duty prevailed: In conclusion, as far as the Madeiros [sic] Affidavit is concerned, it would have been an easy task for this Court to transfer the responsi­ bility upon another jury, but if this were done it would be the shirk­ ing of a solemn duty that the law places upon the trial Court. Guided by this solemn duty I have examined and studied for several weeks, without interruption, the record of the testimony given at the trial before the jury, and all the affidavits upon this Motion, and the Madeiros [JZ'C] Deposition; and, being controlled only by judgment, reason and conscience, and after giving as favorable consideration to these defendants as may be consistent with a due regard for the rights of the public and sound principles of law, I am forced to the conclusion that the affidavit of Madeiros [sic] is unreliable, untrust­ worthy and untrue. To set aside a verdict of a jury affirmed by the Supreme Judicial Court of this Commonwealth on such an affidavit would be a mockery upon truth and justice. Therefore, exercising every right vested in this Court in the granting of motions for new trials by the law of this Commonwealth, this Motion for a new trial is hereby denied.41 At no time has the Court lost sight of the rights of the defendants and those of the Commonwealth in these verdicts, neither has the Court failed to hear at all times the commanding voice of the law that has told, in clear and unmistakeable [sic] terms, its duty before it is justified in setting aside verdicts. That duty, imposed upon the Trial Judge the obligation of finding as a fact the truthfulness or probable truthfulness of the material allegations set forth in this Motion for a new Trial. . . . But this Court, if his natural feelings of humanity were stretched to the limit, cannot find as a fact that Madeiros [sic] told the truth. This being so, his duty is unmistakeably [sic] plain. Therefore, this Court, exercising every authority vested in it by the law of this Commonwealth in the granting of motions for new trials on newly-discovered evidence, denies these motions for new trials that are based upon the Confession of Madeiros [sic] and all other affidavits filed in connection therewith. . . .42 On the other hand, there is much in the record to show that he had formed an opinion against the defendants during the trial and that he exhibited ill feeling toward Fred H. Moore, counsel for Sacco. No one could blame him much for some exasperation at Mr. Moore, but there is reason to suspect that his ill feeling extended to Mr. Moore's client. The original record scrupulously excludes any reversible exhibitions of prejudice against the de-

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THE LEGACY OF SACCO AND VANZETTI

fendants, but it now appears that at least parts of the proceedings were not taken by the official reporter. It also appears that Judge Thayer had previously presided at the separate trial of Vanzetti and was aware of the radicalism of both defendants. In view of this fact his remarks to the jury as to their patriotic duties, his references to the heroic dead of World War I, and similar ob­ servations that might ordinarily be passed by as the platitudinous outpourings of a prosaic and pompous mind take on a new sig­ nificance. His restriction of Goodridge's cross-examination, his liberality to the prosecution in the cross-examination of Sacco, his absurd suggestion of defendants' possible justification for the collection of the socialist literature, his silly criticism of Kurlansky for failing to investigate and report Andrews's story of the at­ tempt of the police to induce her to identify the defendants—all these may, to be sure, be attributed to that stupidity which char­ acterized so much of his conduct during the trial, but they are quite as likely to have proceeded from a desire to secure a verdict of guilty. The Supreme Judicial Court and the Advisory Com­ mittee agree, however, that no prejudice of the judge was by him made manifest to the jury.43 And the defendants may well have been greatly embarrassed in claiming the contrary by Mr. McAnarney's tribute in his closing argument to Judge Thayer's widely recognized learning and ability and by his concession that everything had been done for defendants "as Massachusetts takes pride in doing, granting to any man, however lowly his station, the fullest rights to our Massachusetts Commonwealth laws." 44 That Judge Thayer manifested no prejudice may be important in considering whether there was any violation of the rule for­ bidding the presiding judge to influence the jury on the facts. It has, however, no bearing upon the issue of his fitness to handle the motions for a new trial. Whether or not Judge Thayer was unduly moved by his dis­ like against Mr. Moore, there is no doubt that he took pains to prevent his real feelings from appearing on the record. In deny­ ing the third supplementary motion he professed to put a char­ itable construction on Mr. Moore's conduct regarding Goodridge; in denying the fourth supplementary motion he said: "I regret exceedingly that I have been placed in a position that compelled me to criticise the conduct of Mr. Moore. . . . My relationship with him has been very pleasant, although at times it would seem, as was very natural, that he was quite unfamiliar with our trial

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I47

evidence and practice in this state." 45 Now, if one thing is made clear before the Advisory Committee, it is that the relationship between Judge Thayer and Mr. Moore was anything but pleasant from the beginning. It was so apparent to the McAnarney brothers that they endeavored to have Moore withdraw from the case. It was obvious to the newspaper correspondents: To Frank P. Sibley, Judge Thayer exclaimed: "I'll show them that no long-haired an­ archist from California can run this court!" 48 and he frequently referred to counsel for defense as "those damn fools."47 He dis­ cussed the case with Elizabeth R. Bernkopf, to whom he said in substance that he regarded himself and Moore as antagonists, and that he disliked and was suspicious of Moore, and he did not pro­ pose to allow the Massachusetts courts to be imposed upon by Moore. John Nicholas Beffel deposed that mention of Moore's name in connection with questions concerning the empaneling of the jury "aroused signs of hostility from Judge Thayer." 48 What­ ever excuses he may have had for hostility to Moore, there can be no excuse for gratuitously misrepresenting the facts. Only a firmly fixed prejudgment can explain Judge Thayer's otherwise inexplicable memoranda giving the grounds upon which he based his denials of the various motions. Time and space do not permit an analysis of them. Suffice it to say that they are not the product of a judge, but of an advocate. They exhibit the determination to affirm the finding of guilt rather than the honest resolution of the issues presented. That the judge's enmity to Moore was accompanied by prejudice against the defendants is abundantly shown by unimpeachable witnesses. He talked during the trial to Lois B. Rantoul, a representative of the Board of the Greater Boston Federation of Churches. When she remarked that she had not heard evidence sufficient to convince her of defend­ ants' guilt, he "expressed dissatisfaction with this statement, both by words, gestures, tone of voice, and manner," 49 and assured her she would feel differently after hearing the arguments and the charge. He also imposed himself and his views upon Mr. George U. Crocker at the University Club. Mr. Crocker reported in part: I do not remember how many times Judge Thayer talked to me about the case during the trial, but it was, I think, three or four times, and each time showing what appeared to me clearly to be bias against the defendants. . . . The points which Judge Thayer talked to me about, and which I remember, were the failure of the defendants to establish an alibi, the

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fact that they were draft dodgers and anarchists and entitled to no consideration, although he said that the matter of their being anar­ chists, etc., was lugged in by the defendants and not by the Govern­ ment, and some evidence about their identification.50 I remember that in particular he talked about counsel for the de­ fence and the argument for the defence. He pulled out of his pocket a paper which he said was part of his charge, and said, "Now, Moore said so and so yesterday in his argument to the jury, and I want to read you a part of the charge I am going to deliver. That will hold him." He also referred to Mr. McAnarney's argument, and spoke of his charge, or a part of it, as an answer to that argument. . . . He conveyed to me by his words and manner the distinct impression that he was bound to convict these men because they were "Reds." I remember that Judge Thayer in substance said to me that we must stand together and protect ourselves against anarchists and "Reds." 51 His Honor's numerous conversations with the newspaper cor­ respondents gave the same impression of prejudice against the defendants to Frank P. Sibley, Elizabeth R. Bernkopf, and John Nicholas Beffel. The affidavit of Robert Benchley as to a conver­ sation between Judge Thayer and Mr. Loring Coes, reported to him by Mr. Coes, is of the same tenor, but, being hearsay, should not be given great weight in an inquiry of this sort, though bear­ ing many earmarks of veracity. His settled prejudice continued after the trial. In November, 1924, after he had on October 1 denied the second to sixth motions for a new trial, and before the seventh motion was presented, he said to Professor James P. Richardson, of Dartmouth College: "Did you see what I did with those anarchistic bastards the other day. I guess that will hold them for a while. . . . Let them go to the Supreme Court now and see what they can get out of them." 62 And this is the judge to whose honest and intelligent discretion was confided the determination of the motion for a new trial! Grant that he was able to conceal his bias from the jury; grant that he kept the transcript clean of reversible error; grant that his muddled misstatements and crooked reasoning in his so-called decisions of the motions are not conclusive evidence of fatal preju­ dice, yet here is a demonstration of his unfitness to determine any issue as a matter of discretion. Had he desired to be fair, it would have been impossible. And the record before the Advisory Com­ mittee demonstrates that he had no desire to be fair. His one de­ sire was to make the conviction stand. And the pity of it is that he succeeded.

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CONCLUSIONS AS TO THE PROCEEDINGS IN THE TRIAL COURT

Whether the foregoing analysis and deductions be accepted or not, certain indisputable facts stand out so boldly that he who runs may read. The defendants were foreigners of comparatively little education, whose political, social, and economic views were radical. They were arrested and tried at a time when these views were particularly likely to engender hostility. They were prose­ cuted by an astute and able prosecutor whose ideals and practice did not require him either to present before the court or to dis­ close to counsel for the defense competent and testimonially quali­ fied witnesses whose evidence would help the accused and damage the claims of the state—a prosecutor who did not hesitate to use against the defendants material likely to inflame the prevailing prejudices against men of their opinions, even though its legiti­ mate bearing upon any issue in the case was so slight as to be negligible. They were represented by counsel led by an attorney whose personality and conduct exasperated the trial judge, an­ noyed his associates, and probably irritated the jurors—counsel who, perhaps because of their leader's incompetence, exhibited an amazing incapacity in the presentation and argument of the defense.53 They were tried before a trial judge whose rulings, charitably interpreted, disclose unusual stupidity and strongly suggest bias—a trial judge whose actual prejudice against defend­ ants and their counsel can no longer be doubted, even if it be con­ ceded that he did not reveal it to the jury. The motions for a new trial were heard and determined by this same prejudiced judge; they depended almost entirely upon the exercise of his discretion, which in considering these motions as well as in his rulings at the trial, he uniformly exercised against the defendants. A careful reading of the entire transcript makes most reasonable, if not imperative, findings also that the prosecutor was guilty of out­ rageous misconduct, that the trial judge could not have concealed from the jury, while revealing to outsiders, his violent prejudices against the defendants, and that the jury, largely under the in­ fluence of this misconduct and bias, which was aggravated by the incompetent handling of the defense, returned a verdict contrary to the great weight of the evidence.

THE LEGACY OF SACCO AND VANZETTI

CONCLUSIONS AS TO THE PROCEEDINGS IN THE SUPREME JUDICIAL COURT

In these circumstances how could the Supreme Judicial Court have failed to reverse the action of the trial court? The explana­ tion is simple enough to those who have studied the operations of that distinguished tribunal during that period. It conceived itself to be powerless to examine the proceedings of the trial court as a unit for the purpose of determining whether a substantial injustice had been done. It investigated the facts only so far as necessary to ascertain whether there was a sufficient conflict in the evidence and the inferences to be drawn therefrom, to make a question for the jury. It steadfastly refused to inquire whether the verdict was contrary to the preponderance of the evidence. It explored only those questions of law reserved by proper excep­ tion. In considering them it habitually regarded each alleged error as if it stood alone, and its chief concern seemed to be whether the trial judge selected the proper rule and put it to the jury in the approved phraseology.54 No one need wonder then at the uninspired, unsympathetic attitude displayed in the Sacco opinions. The same thing might have happened in any case; in this case it was almost bound to happen, for by the time it reached the Supreme Judicial Court it had almost been transformed from the Commonwealth against Sacco and Vanzetti into Judge Webster Thayer against the De­ fense Committee, a contest as to which the community was sharply and violently divided. It is to be regretted that the court did not rise to its opportunity to define the functions and declare the duties of a prosecutor in terms creditable to a great Common­ wealth; but it was hardly to be hoped for. In such a case such a court would be expected to make its usual desiccated analysis of the bare record and give its attention to each separate allegation of error without consideration of the record as a whole. And it is never to be forgotten that the claim of prejudice in the trial judge as presented by the accused to the Supreme Judicial Court was supported only by inferences to be drawn from his rulings and his so-called decisions. Treating each ruling without its fel­ lows, examining his determinations without the reasons which he advanced to support them, giving full credit to his expressed dis-

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claimers of bias and his exhortations to the jury, it was not overdifficult to sustain him. Had the material demonstrating his settled prejudice against defendants, which was later put before the Advisory Committee, been presented to the Supreme Judicial Court, it would have had a harder task. In its first opinion, in order to sustain the rulings of the judge at the trial, it had to resort to the doctrine of discre­ tion on at least sixteen different occasions covering nine distinct points; and to sustain his denial of the new trial on each of the five points raised, it had to rely on the same doctrine. In its second opinion, all the really important questions raised were deter­ mined solely on the basis of the exercise of an honest discretion. Had the record been such as to have compelled a finding of his prejudice, it is almost inconceivable that the Supreme Judicial Court could have solemnly relied upon the pious fiction that such a judge had honestly and intelligently exercised his discretion against the defendants on practically every occasion at every stage of the proceedings. On the record as it stood, however, these de­ fendants received the kind of treatment then usually accorded appellants in the Supreme Judicial Court of Massachusetts. CONCLUSIONS AS TO THE PROCEEDINGS BEFORE THE GOVERNOR AND THE ADVISORY COMMITTEE

On May 4, 1927, a petition for executive clemency was pre­ sented to Governor Alvan T. Fuller. In their letter of transmittal Thompson and Ehrmann explained that Sacco had refused to sign the document because, as he asserted, he had no further confi­ dence in any agency of the government and hoped that the end would come quickly. Vanzetti asked for a thorough investigation and review; he wanted no pardon. He advanced no argument that had not already been made to Judge Thayer; he claimed that the conduct of the trial had been unfair and that the judge was preju­ diced, and attributed the result to the generally prevalent hos­ tility toward men of his political and philosophical beliefs. Governor Fuller at once began a personal and private study of the case; he talked with a great many persons, including those suggested to him by defense counsel, and he also interviewed Sacco and Vanzetti in Charlestown prison. This private study of the case by the Governor—of which no record exists—continued

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right up to the time he announced his decision. He also appointed an Advisory Committee at this same time. After a study of the record, the Committee hearings were opened on July 11 and ended by argument of counsel on July 25. The report of the Committee was given to the Governor on July 2η. The procedure in the hearings was to question privately such persons as were suggested by defense counsel and such others as the Committee itself asked to appear before it. An almost com­ plete stenographic record was kept.55 Defense counsel were given the opportunity to cross-examine all witnesses except the ten avail­ able jurors, Judge Thayer, and Chief Justice Hall of the Superior Court. Former District Attorney Katzmann was cross-examined during part of his appearance. In retrospect the record of the hearings does not read well; at one time there is a good deal said about not being bound by the courtroom code of evidence, and at other places there are admonitions to respect legal procedure. President Lowell at one place stated the business of the Commit­ tee was "to find out the truth" and "not at all to hear a contro­ versy between the parties." Just what he meant by this or how he expected to be able to find out the truth without hearing a controversy between the parties he did not explain. Of the three questions submitted to the Committee, only one had to do with the guilt or innocence of the defendants. On this the Committee had to rely chiefly upon the material theretofore gathered and presented by the parties. As to the fairness of the conduct of the trial and the value of the newly discovered evidence, how could one speak of the truth as distinguished from an opinion? And must that opinion or judgment not be based almost if not quite exclusively upon the record previously made by the adversaries? Perhaps he was merely insisting that the hearings would be con­ ducted without reference to the rules applicable to our adversary system of litigation, and was laying the basis for hearing some witnesses and examining some sources of information otherwise than in open session in the presence of counsel. Four major lines of investigation were followed in the hear­ ings. First, certain elements in the evidence offered at the trial were explored in detail, and new evidence in support or denial of the original record was introduced. Typical of this phase of the hearing is the study of the significance of a tear in the cap said to belong to Sacco. Gallivan, Chief of Police in Braintree at the

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time of the crime, testified to having made the tear while seeking for some proof of ownership. This fact, it appeared, was not known to Katzmann at the time of the trial. Second, the Com­ mittee gave consideration to the evidence presented to Judge Thayer in the supplementary motions which he had denied. For example, witnesses testified to the fact that Proctor, in private remarks, went far beyond the mild correction embodied in his affidavit; in fact he was said virtually to have admitted committing perjury. Third, new information was introduced as to the heavily armed condition of the courtroom at the trial. These three lines of evidence were attacked by Assistant District Attorney Ranney, who appeared for the state; he cross-examined at some length and offered appropriate rebuttal testimony. He also brought in a new witness, one Lottie Packard, who placed Sacco at the scene of the crime. The fourth and much the most important problem put before the Advisory Committee was that of Judge Thayer's hostility to­ ward the defendants and their counsel at the trial and in later years. Men of the highest reputation for intelligence and judicious temperament gave substantial proof that Judge Thayer's conduct with reference to the case was at various times vulgarly contemp­ tuous, sneering, hostile, narrow-minded, profane, and hateful. But no unquestionably prejudicial speech or act was proved to have taken place before the jury. The record stood generally free of conclusive evidence of overt prejudice. In their concluding speeches before the Committee, Thompson and Ehrmann stated once again the arguments which they had offered so often before Judge Thayer. Thompson confessed his lack of hope in the Supreme Judicial Court: I did the best I could . . . to show that this man was not using his mind in a rational way; that it was being affected by his imagination and by his prejudice, and that it passed over the line of judicial dis­ cretion into the region of abuse of discretion. The Supreme Court followed the usual custom of overruling that motion. They have never granted a motion on that ground since that Court was established. They have always said that they could, but they never have. I suppose it would require proof of actual insanity in the technical sense of the term, or of utter depravity, to get them to do it. The courts are so linked up together that you can hardly expect our Supreme Court to find a lower court judge guilty of abuse or [sic, read of] discretion.

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Judge Loring once said, in another case which also unfortunately came out of our office, that to find "abuse of discretion" is equivalent to finding that the Judge is unfit for his office.5* Counsel stated that their one real chance lay in persuading the Committee of two propositions which to them seemed incontro­ vertible: first, that the old evidence, the new evidence, and the combined weight of the old and the new evidence were sufficient to raise a reasonable doubt as to the guilt of Sacco and Vanzetti. At least a doubt of sufficient consequence to call for a new trial before a jury. Second, that it was inconceivable that a man hold­ ing the passions and prejudices of Judge Thayer could possibly have been fit to preside over the trial of a capital cause, however skillful he may have been in keeping the record clear of evidence of his hostility. Assistant District Attorney Ranney's reply was direct and sim­ ple; he said, in effect, "show this Committee that place in the record where they can find proof of an incompetent or preju­ diced judge." The Advisory Committee submitted its twenty-page report to Governor Fuller on July 27, the second day after the closing of the hearing. They said: The inquiry that you have asked the Committee to undertake seems to consist of answering the three following questions: (1) In their opinion, was the trial fairly conducted? (a) Was the subsequently discovered evidence such that in their opinion a new trial ought to have been granted? (3) Are they, or are they not convinced beyond reasonable doubt that Sacco and Vanzetti were guilty of the murder? 57 The answer to the first question was affirmative: the trial was fair. Katzmann's cross-examination of Sacco was justified by the fact that, in 1920, anyone claiming to be a radical would have been instantly believed; a thorough probing of this profession, which was offered by the defendants as an explanation of their conduct, was completely in order. And on the issue of courtroom atmosphere, particularly as it arose through the presence of armed guards, the word of the jurymen should be accepted; they told the Committee that they were not conscious of the presence of an unusual number of police nor of any influence intended to arouse prejudice in them against the prisoners. The more important issue of the fairness of the judge could be settled by a reference

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to the record, which "gives the impression that the Judge tried to be scrupulously fair," and by the word of the jury which was unanimous in characterizing him to have been without bias. The formidable testimony as to Thayer's conduct when not before the jury is disposed of in these words: From all that has come to us we are forced to conclude that the Judge was indiscreet in conversation with outsiders during the trial. He ought not to have talked about the case off the bench, and doing so was a grave breach of official decorum. But we do not believe that he used some of the expressions attributed to him, and we think that there is exaggeration in what the persons to whom he spoke remember. Furthermore, we believe that such indiscretions in conversation did not affect his conduct at the trial or the opinions of the jury, who indeed, so stated to the Committee.58 The second chief question was that of the evidence presented to Judge Thayer in the supplementary motions and in the Medeiros motion. He had, by law, the exclusive right to exercise his discretion on this evidence, but the Committee felt that it should determine whether "the discretion of the Judge on each motion was in fact rightly exercised." The six motions are dis­ posed of in six brief statements of opinion with only incidental reference to the evidence. The discussion does not have sufficient substance to merit detailed analysis. Its nature may be indicated by three excerpts. The statement, "Damn them, they ought to hang them any­ way," attributed to Ripley, was the core of the Daly affidavit. The Committee wrote: Now it is extremely improbable that Ripley was so different from other men that he desired the disagreeable task of serving on this jury, and he had only to reveal what he had said to be excused. Yet in spite of a selective process in making up the jury, so rigorous that out of the first five hundred talesmen only seven were taken, he was one of these. He did not live to contradict the statement, and we believe that Daly must have misunderstood him, or that his recollecion is at fault.59 Hamilton, the defense expert, told the Committee that Proctor, in private conversation, expressed the opinion that the fatal bul­ let had not been fired through Sacco's pistol. The Committee re­ fused to believe Hamilton and observed that any such remark "would be an admission not of a misleading statement but of deliberate perjury." 60

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Much greater attention was given by the Committee to the ad­ mittedly unsubstantial confession by Medeiros than to the de­ tailed hypothesis involving the Morelli gang: ". . . it does not seem to the Committee that these affidavits to corroborate a worth­ less confession are of such weight as to deserve serious atten­ tion." 61 The completely new material brought before the Committee received brief but curious treatment. Lottie Packard testified for the prosecution as an identification witness; Jeremiah Gallivan testified for the defense and explained the tear in the cap. Packard was thoroughly impeached as to character, intelligence, and men­ tal balance. Gallivan was a simple man but one with a satisfactory record as Chief of Police in Braintree. The Committee found: [Lottie Packard] is eccentric, not unimpeachable in conduct; but the Committee believe that in this case her testimony is well worth con­ sideration. . . . [Gallivan's] statement we believe to be true; but the rent in the lining of the cap is so trifling a matter in the evidence in the case that it seems to the Committee by no means a ground for a new trial.62 To the final major question, the proof of guilt beyond reason­ able doubt, the Committee returned an affirmative answer. They summarized the chief contentions of the prosecution and accepted them as their own, especially emphasizing the fact that both men were heavily armed and acted suspiciously at the time of their arrest. Also: It has been urged that a crime of this kind must have been committed by professionals, and it is for well-known criminal gangs that one must look; but to the Committee both this crime and the one at Bridgewater do not seem to bear the marks of professionals, but of men inexpert in such crimes.63 The transcript of these committee proceedings will never serve to change the opinions formed by reading the transcript of the court proceedings. The report of the Advisory Committee is not a convincing document. Perhaps it was intended only to declare the convictions of its members and not to demonstrate their sound­ ness. At any rate, such is the only function that it effectually per­ forms. No fair comment can be made upon the Governor's investiga­ tion. On August 3, 1927, he announced that he found "no justifi­ cation for executive intervention." He declared that he had made

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a thorough examination of all the available material and had interviewed many of the witnesses and eleven of the jurors. He came to the conclusion that these men had a fair trial, that the trial judge was right in denying them a second trial, and that they were guilty. The processes by which he reached his conclusion are not disclosed. He did not reveal his opinion as to Judge Thayer's prejudice. He merely thought that it was not evidenced by his actions at the trial and upon the motions for a new trial. His conclusions, as well as those of the Committee, are, of course, diametrically opposed to those expressed in this study. A SUMMARY OPINION

These defendants had a trial which in form followed the settled Massachusetts practice. They were heard repeatedly and at great length on their motions for a new trial. They had two full hear­ ings before the Supreme Judicial Court of the Commonwealth. At their behest the Governor made an unusual investigation into the whole matter and called to his aid a committee of distin­ guished gentlemen who made an independent inquiry into the entire case. The trial judge, the trial jury, the Supreme Judicial Court, the Governor, and the Advisory Committee, each and all, decided every vital issue against them. In short, the Common­ wealth of Massachusetts put at the disposal of these defendants all the machinery usually provided for an accused, and even fur­ nished additional devices for their protection. And yet a careful examination of the printed record of all these proceedings com­ pels the conviction that all this elaborate machinery failed to function with reasonable accuracy, and that these defendants were the victims of a tragic miscarriage of justice. The fault lies partly with them or with those for whose acts they, and not the Com­ monwealth, must bear the responsibility—their counsel. It lies chiefly, however, with the Commonwealth in that it placed in judgment over these men a trial judge whose prejudices made him overlook misconduct of the prosecutor, made him determine every discretionary matter against the accused, and permeated the proceedings from beginning to end with its vicious influence. The defendants had a trial according to all the forms of law, but it was not a fair trial.

Chapter V

AN UNPUBLISHED CHAPTER I N T H E RECORD ON THE record Vanzetti appears to have had a fair trial at Plymouth. The verdict was amply supported by the evidence. There was no substantial error in the rulings of the trial judge. The prosecutor was guilty of no misconduct. Vanzetti's counsel may have been remiss or unwise in their preparation of the case or in the conduct of the trial or both, but in what respect or to what extent, if any, the transcript of the proceedings does not disclose. There is nothing to indicate what the people of the com­ munity may have been thinking or saying about the crime or the connection of Vanzetti with it except an affidavit of Vanzetti, sworn to under date of June 23, 1920, and filed in support of a motion for a continuance of the cause until the following term of court, in which he asserted that on Sunday, June 20, 1920, there had appeared in the Boston American an article which had created an excited and highly prejudiced state of feeling against him in consequence of which he was apprehensive that any jury by whom he might then be tried would be so biased and prepossessed as to prevent a fair and impartial trial. So far as appears, the motion was never brought on for hearing, and the trial opened on June 22, 1920. The conduct of the prosecution in the subsequent Dedham trial, Vanzetti's explanation of his failure to testify at Plymouth, the confession of Silva and its partial corroboration by representa­ tives of the Outlook and Independent, and Mede's offer to confess to Captain Blye without qualification combine to create an un­ easy feeling that, however fair the transcript may make the trial appear to have been, still the Plymouth jury may have blundered. Add to this the opinions of reputable citizens who came to know, respect, and even love Vanzetti, that such an act of violence as armed robbery was so entirely inconsistent with Vanzetti's real character as to make his guilt unthinkable; and the conviction of many people that this Italian fish-peddler was the victim of a 158

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miscarriage of justice at Plymouth becomes understandable. But at the close of the Plymouth trial the people of the Common­ wealth of Massachusetts had no apparent cause for dissatisfaction with the verdict. The heavy sentence for an attempted robbery in which no one was injured and nothing was stolen, imposed upon a defendant whose prior record was clean, was, however, at least some indication that the judge was motivated by considera­ tions not disclosed in the record. The story of the Dedham trial is quite different. The bare record discloses many disquieting features, including (a) the diffi­ culty in getting a jury, (b) the almost uniform exercise of discre­ tion by the judge against the defendants in a capital case, (c) the extent to which the prosecutor was willing and permitted to go into highly prejudicial matter under the guise of testing the credi­ bility of the defendant Sacco, (d) the ineffective presentation of the evidence to show the fear of prosecution and persecution created in defendants by the contemporary official action by the United States Government against slackers and so-called Reds, (e) the poorly prepared and badly given expert testimony for the defense and the inadequate cross-examination of the prosecution's experts, (/) the wretchedly planned and inexcusably jumbled sum­ ming up to the jury for the defense, and (g) instructions from the judge with references to loyalty, with platitudinous statements as to the tender regard of the law for all unfortunate defendants, with a summary of parts of the evidence that treated the testimony of the experts as if each had expressed an opinion as to whether Sacco's pistol had actually fired the fatal bullet, and that greatly overemphasized the testimony of the falsehoods of defendants as evidence of consciousness of guilt. All these create the impression that the scales were weighted against the defendants and that even if the transcript shows no technical departure from accepted pro­ cedure, still they did not have what an unprejudiced layman would call a fair trial. The subsequently revealed conduct of the prosecutor and his assistant with reference to Proctor and the intense prejudice of the trial judge make this conclusion almost irresistible. But the Advisory Committee not only resisted any such con­ clusion; it went much further and concluded that "Sacco was guilty beyond reasonable doubt" and "on the whole Vanzetti was guilty beyond reasonable doubt." The Committee did not ex­ plain why doubt was not raised by the failure of the prosecution

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THE LEGACY OF SACCO AND VANZETTI

to trace any of the stolen money to the defendants or to discover the identity of three of the bandits, or by the frailty of the identi­ fication evidence in the light of the impeachment of most of the prosecution's witnesses, the later discovered evidence of three eyewitnesses, and the close resemblance in appearance of Sacco to Joe Morelli, or by the disclosure of the tricky ambiguity of Proctor's ballistic testimony and the flimsiness of the evidence purporting to identify Vanzetti's revolver with that of Berardelli. The evidence at the trial and on the motions for a new trial as to the identity of markings on the fatal bullet and on the Fraher shell with those on the test bullets and shells consisted almost solely of microscopic measurements and opinions as to the simi­ larity of scratches on the bullets and of the ejector marks on the sides of the shells and of the engravings on their heads made by file marks on the breechblock. On paper the affidavits of Hamil­ ton and Gill seem quite as convincing as those of Van Amburgh and Robinson, although Robinson's exposition does destroy Gill's explanation of the discrepancy between Gill's measurements and those of Hamilton. Why didn't Hamilton's affidavits raise a doubt? Did the members of the Committee have evidence not appearing in the record? They probably had knowledge of an important document which appears nowhere in print and which has not been discussed in previous reviews of the case. Its significance is such that it should be quoted at length. It is an order by Judge Thayer dated March 21, 1924; it rests in the files of the Superior Court at Dedham. The following excerpts are pertinent and self-explana­ tory: On or about February 13, 1924, District Attorney Williams informed the Court that Capt. Van Amburgh had told him that upon examina­ tion, the barrel in the Sacco Colt automatic pistol of 32 calibre, was not the Sacco barrel that belonged in the Sacco pistol. After this com­ munication was made to the Court by Mr. Williams, counsel for the defendants were notified of this statement made by Capt. Van Amburgh concerning said barrel. On the last or next to last day of the hearing on the 5th supplemen­ tary motion for a new trial, Mr. Hamilton, an expert on fire arms and ammunition, used as exhibits two new Colt automatic pistols of 32 calibre, which were filed with the clerk of the Superior Court at Dedham, with an affidavit, some time before said hearing. The Sacco

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pistol was also there at that time, and was used by Mr. Hamilton as an exhibit. It is admitted that Mr. Hamilton at this hearing on said motion dis­ assembled all three pistols, and some time after he had finished his explanation and comparison between the two new Colt pistols belong­ ing to him and the Sacco pistol, he reassembled said three pistols, in the presence of the Court and Counsel on both sides, and by order of the Court, delivered them to Mr. Everett, the assistant clerk of said Superior Court. The two new pistols were brought to the office of the clerk of said Court in boxes, and Mr. Everett put them in the same boxes, after they had been reassembled by Mr. Hamilton. . . . On February 15, 1924, said two boxes, in the presence of counsel on both sides, and Capt. Van Amburgh and Mr. Hamilton, were opened by the Court, after they had been brought to the Court by Sheriff Capen, and therein were found Hamilton's two new Colt auto­ matic pistols, excepting there was an old rusty and foul barrel in one of his new pistols. In the Sacco pistol there was apparently a new barrel, which Mr. Hamilton said was his and that it belonged in his new pistol. The question then immediately arose, how did the new barrel of the Hamilton pistol, which he says he put into his new pistol when he reassembled its parts in court, get into the Sacco pistol, and how did the old rusty, foul barrel get into the new Hamilton pistol. It is an admitted fact by Mr. Hamilton that his new barrel in some way got into the Sacco pistol. But a dispute has arisen between the two experts, Capt. Van Amburgh and Mr. Hamilton, as to whether or not the old rusty, foul barrel found in the Hamilton pistol was the Sacco barrel. Capt. Van Amburgh has testified that it was. As soon as the Court learned of this difference of opinion of experts on the substitution of barrels, an investigation was started at once, upon my own initiative and motion. . . . Three weeks and two days have been devoted to this investigation. The daily hearings lasted until nearly 5 o'clock every afternoon. Mr. Williams, District Attorney representing the Commonwealth, and Mr. Moore (Mr. Thompson a very short time) representing the defendants, were present at all of the hearings and took part in the examination and cross-examination of witnesses. Mr. Hamilton was present at all hearings, and so was Capt. Van Amburgh, excepting the week at Dedham. They were allowed in the court room at all times, when all other witnesses appeared alone and were sworn separately, and no two of them were in the court room at the same time. I think I am perfectly safe in saying that during this entire hearing counsel for the de­ fendants consumed more than two thirds of the time in cross-examina­ tion, for with only one exception, every witness was subjected to a

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long and exhaustive cross-examination. And let me say here that the counsel for the defendants went to the limit of his capacity in seeking to obtain some evidence that tended in some way to show that some­ body connected with the Commonwealth might have or did substitute these barrels. Let me now consider the salient features of the evidence. At the outset it should be borne in mind that the Commonwealth has strenuously opposed every motion that has been filed by the defend­ ants up to the present time. This fact may or may not be of some importance on the question of motive. In other words, would any­ one connected with the interest of the Commonwealth be likely to change the barrels of those pistols, which might under some circum­ stances result in assisting the defendants in filing more motions for new trials? Counsel for defendants has argued that it must have been somebody directing the interests of the Commonwealth in making these substi­ tutions, while the District Attorney has argued that it was done by Mr. Hamilton. (But, no matter who made the substitutions, whether innocently or intentionally, the Commonwealth claimed that the bar­ rel found in Hamilton's new pistol was the original Sacco barrel.) Therefore, the only question that I am going to determine now is, whether or not the barrel in Hamilton's new pistol is the original Sacco barrel. . . . At first Mr. Hamilton was rather of the opinion that it was the Sacco barrel that was in his new pistol, but after a very suggestive question was put to him he became doubtful, so that he required a compound microscopic examination to ascertain the measurements of the lands and grooves of the Sacco barrel and those of the disputed barrel. After making these measurements and for other reasons given by him he was unqualifiedly of the opinion that the disputed barrel was not the Sacco barrel. In connection with the necessity of these measurements to determine whether or not the old barrel in his new pistol was the Sacco barrel, I noticed particularly that Mr. Hamilton, without measurements of the lands and grooves and without hesitation, testified that the new barrel taken out of the Sacco pistol was his. Did that act on his part indicate or did it not any knowledge? . . . The hearing closed on November 8, 1923, on the supplementary motion for a new trial, when the three pistols were reassembled. On the 12th day of November, 1923. District Attorney Williams filed an affidavit of Captain Van Amburgh, to which was attached a plug gauge. This was done at the request of the Court. A plug gauge is an instrument used to determine the diameter of the bore of pistols. At that time District Attorney Williams, in the presence of Mr. Everett, put said plug guage [sic] in the barrel that was in the Sacco pistol, and from his description I am

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satisfied that the barrel in the Sacco pistol was Hamilton's new barrel and not the Sacco barrel. On November 13, 1923, when Mr. Worthington informed me that the plug gauge had been filed with an accompanying affidavit, I re­ quested him to bring it to my room with the Sacco pistol. At that time the Sacco pistol was fully assembled. I could not disassemble it; so accompanied by Mr. Worthington, I went to the District Attorney's office and while there in our presence and at my request, Mr. Williams disassembled the Sacco pistol and after this was done both Mr. Wor­ thington and I returned to my room, where I experimented with the plug gauge by pushing it into the barrel that had been dismantled from the Sacco pistol. After finishing my examination Mr. Worthing­ ton took the plug gauge and the component parts of the disassembled Sacco pistol back to his office. I am satisfied now that this barrel in the Sacco pistol was the new Hamilton barrel. 1 noticed at that time the barrel was a shade larger than the plug gauge. Mr. Hamilton in his affidavit affirmed that the diameter of the Sacco barrel measured .2924, while Captain Van Amburgh affirmed that it measured .3045. It now appears from the testimony of Mr. Hamilton that the diameter of his new barrel in the Sacco pistol measured .0009 greater than Captain Van Amburg's [ric] plug guage [sic]. This being true, the barrel in the Sacco pistol must have been the Hamilton new barrel, because a plug gauge that measured .3045 could not have been pressed into a barrel that measured .2924. . . . At the close of the hearing of the fifth supplementary motion for a new trial, counsel for the defendants said that he would reserve the right to be heard on a request to fire one hundred cartridges through the Sacco pistol. This request was made with a view of showing that the location of the firing pin indentation on the primer surface estab­ lished an individuality of the firing pin in the pistol. About six or seven weeks ago Mr. Thompson called on me at the court house and made a similar request. District Attorney Williams said at that time that he should oppose it until he had communicated with Captain Van Amburgh. Some time afterwards Captain Van Amburgh came to the Judges' Lobby, examined the then supposed Sacco barrel, and told Mr. Williams, who informed the Court later, that it was not the Sacco barrel. Counsel for the defendants claimed that the motive on the part of the Commonwealth was to defeat and render ineffective the firing of cartridges through the Sacco pistol, as requested by Mr. Thompson, if the Court allowed the motion to do more firing through the Sacco pistol. At any rate, if the substitution was intentional, it was claimed by counsel for the defendants that it would eventually result in injury to the defendants.

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On the other hand the Commonwealth claimed from a considera­ tion of all the evidence that it was a "tricky" substitution by Mr. Hamilton with the ultimate motive of securing a new trial when the substitution was discovered, as it was bound to be sooner or later; in other words, after the substitution was discovered—and the plan was to have it discovered by him—then the claim would be made that the new barrel in the Sacco pistol was not the Sacco barrel, and then, on that account, a motion for a new trial would be filed. The Commonwealth claims that this plan was defeated by the dis­ covery by Captain Van Amburgh. . . . District Attorney Williams was called as a witness by the Court and was subjected to a vigorous and lengthy cross-examination by Mr. Moore. The District Attorney in response to questions propounded by the Court, stated that he went to Bridgeport, Connecticut, to procure a plug gauge from Captain Van Amburgh at the request of the Court. On November 12, 1923, in the presence of Mr. Everett, the District Attorney tried the plug gauge by pushing it into the barrel that was in the Sacco pistol. The diameter of the plug gauge was .3045, while the diameter of the barrel, according to Mr. Hamilton, was .2924. Mr. Moore in his cross-examination asked Mr. Williams why he did not know from the ease with which the plug gauge went into the barrel that it did not inform him that the barrel then in the Sacco pistol was not the Saeco barrel. Mr. Williams replied that in substance he did not know because he had never seen a plug gauge before, that he did not know how one should fit into a barrel, and that he came away believing that the barrel then in the Sacco pistol was the real Sacco barrel. Mr. Williams was there a very short time; not over a minute as I recollect it. The examination would have been very effective provided knowledge was established on the part of Mr. Wil­ liams. This was because knowledge of the substitution of these barrels not communicated to the Court would be evidence of guilty conscious­ ness. Now, it is only fair to the Commonwealth to put the same test to Mr. Hamilton, who was a man of extraordinary experience in the field of firearms and ammunition. He has testified in almost every state in the Union in 174 murder cases, and his entire time is devoted and has been for years to murder cases and criminology. On the 4th day of December Mr. Hamilton went to Dedham Court House and there, in the presence of Clerk Worthington, examined what he then thought was the Sacco barrel but now says it was un­ doubtedly his new barrel. He was there between fifteen and twenty minutes. He said that he went there to see Captain Van Amburgh's plug gauge. Mr. Hamilton and Captain Van Amburgh did not agree as to the diameter measurement of the Sacco barrel. As bearing upon

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the question of his knowledge of the substituted barrel let me read from his affidavit: "On December 4, 1923, at Dedham, I examined and measured the plug gauge referred to by Mr. Van Amburgh in his last affidavit and attached thereto as an exhibit. I compared it with and attempted to determine by it the present muzzle diameter of the barrel of the Sacco pistol. It was impossible to make this determination because of the following facts: The guage [sic] rod or measuring end of it is a reverse taper, that is to say, the end diameter is .3048"; near the middle the diameter is .3046": and at the handle end it is .3045". The present diameter of the muzzle of the Sacco pistol is .3054".* The muzzle diameter of the Sacco pistol at the present time is .0130" larger than it was last April, and is .0009 larger than the large end of the Van Amburgh plug guage [mc]. "Last April the entire interior of the Sacco pistol was foul from standing uncleaned after it had been used for the test shots. When I examined the barrel on November 8 last in court at Dedham, the top of the lands at each end for a distance of about three-quarters of an inch down into it were clean and bright, while the grooves were foul. Today the entire interior lands and grooves are free of fouling, and bright and shiny. Since November 8 the interior of the Sacco pistol has been quite thoroughly cleaned, both lands and grooves, so that the relation of diameter between this barrel and the Van Amburgh gauge rod is quite unlike the condition existing in April last, when I-first saw the Sacco pistol." Mr. Hamilton affirmed in his first affidavit on the fifth supple­ mentary motion that the diameter of the Sacco barrel last spring was .2924, while Captain Van Amburgh said it was .3045. The diameter of the new barrel in the Sacco pistol measured .3054, so that the diameter of the new barrel that Mr. Hamilton examined on December 4 at Dedham was .0009 larger than even the Van Amburgh plug gauge. Now then with this knowledge that he says he had on said date, the question is did he or did he not know from his large experience that the new barrel was not the Sacco barrel? For if he knew it, as I have said, and did not communicate the fact to the Court or to counsel, that would be important evidence upon guilty consciousness. It should also be borne in mind on this question that there were a great many pits, rust pits, in the original Sacco barrel. Now, let me read what he says on page 149 of the record of this investigation: Cross examination of Mr. Williams, "Q. But, Mr. Hamilton, when you examined the barrel that was in the Sacco pistol on December 4, you then found that a barrel which * In the Transcript the diameter is at times given as .3054 and at other times as •3°53· The correct figure is probably .3054, for it measured .0009 greater than the diameter of the gauge which was .3045.

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you had measured in March, 1923, as .2924 appeared to be .3053 [sic], did you not? A. Not then. I didn't, not then. It did, when I examined it down here December 4, it did appear then to be, but I know now I was measuring my own barrel. "Q. And the barrel you were measuring was—had a bore diameter of .3053 [.sic], didn't it? A. Yes. "Q. And you knew the Sacco pistol barrel in March, 1923, was .2924? A. Yes, sir. "Q. And how did you account in your own mind for that sudden increase in bore diameter of the barrel which you then assumed to be the Sacco barrel? A. I was unable to satisfactorily account for it in my own mind, because while I saw that what appeared to be the barrel had been thoroughly cleaned, it did not satisfy my mind that that was the cause of its enlargement, and I could not possibly conceive, or, in fact, I was satisfied that the Court had never applied any cleaning process to the extent that that barrel had. I had never yet found a Court presuming to clean a barrel that was a Court exhibit, and I assumed this Court was no exception. "Q. Well, you made affidavit on December 6 stating that that Sacco pistol barrel had been cleaned by someone, did you not? A. That I did state, and I have also corrected me [sic] now. That was based on the assumption that I had examined the actual original Sacco barrel. "Q. And at the time you were willing to accept as a fact that the barrel which you were then examining on December 4 and which measured .3053 [sic] bore diameter was the Sacco pistol, were you not? A. I did take it and supposed it was the Sacco pistol, although I could not satisfactorily explain to myself why the diameter had been changed nor why it had been cleaned. "Q. But you recognized as a possibility at that time that it might have expanded to that size, did you not? A. No, I did not accept it as a possibility. I immediately reported and called to the attention of Mr. Thompson the inconsistency of what I had found and put the question to him who I [sic] supposed had cleaned that barrel. I in­ formed him that certainly the court did not do it, and certainly I did not believe any clerk of the court would dare do such a thing. "Q. Did you state anywhere in your affidavit of December 6 that that was not the Sacco barrel or in your opinion was not the Sacco barrel? A. No, sir. "Q. Why didn't you, if you did not do so? A. Because I had no thought in my mind that it was not. "Q. How could you help having a thought in your mind if you say it was impossible to increase the bore diameter from .2924 to •3°53 [sic]? A. The easiest thing in the world. My mind is carrying a

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good many subjects, a good many different exhibits, and I have on my mind most of the time details of five to seven murder cases. "Q. Well, wasn't that particular examination of sufficient im­ portance to you that you would use every care at that time to ascertain the truth? A. No, sir, because I was on a specific errand, on a specific purpose to obtain just the information to complete my affidavit, and that was the relationship between the Van Amburgh plug and the interior of that barrel, and my mind wasn't on anything else. I am familiar with the working of my own mind. I am capable of concen­ trating it upon a given subject or not concentrating it upon a given subject, and at that time it was concentrated upon that one problem and nothing else. "The Court. May I ask this question; In what way would the Van Amburgh plug gauge have to be used so that it would be possible that it is responsible for the bright and shiny appearance of the surface of the lands of the Sacco pistol which has changed its diameter from .2924 last April to .3045 [mc] now? "Mr. Hamilton. That is easy. By simply inserting it into a given barrel and instead of making a true insertion straight ahead, inserting it at just a fraction of an angle and it would naturally wedge and bind as it went in and out due to the holding of the plug not in perfect alignment with the interior of the barrel. "The Court. You don't mean that would cut the barrel itself? "Mr. Hamilton. No. "The Court. It would not make the barrel any larger? "Mr. Hamilton. It would wedge it. "The Court. And simply eliminate the fouling, wouldn't it? "Mr. Hamilton. It would press it down against the metal some­ times a wiggling motion. "The Court. Then that would not make the difference, would it? "Mr. Hamilton. It would not make the difference. "The Court. Would make it look more shiny? "Mr. Hamilton. Would make it look more shiny, yes, sir. That is what I understand your question— "The Court. But it would not account for the difference? "Mr. Hamilton. It would not—It would account for the shininess, but it would not account for the difference in diameter." Also let me read: Page 198 "The Court. Have you taken, Mr. Hamilton, the size of the barrel that was found in the Sacco pistol, [fie] "Mr. Hamilton. I have, your Honor. "The Court. Is that larger than the plug gauge of Captain Van Amburgh, .3045? "Mr. Hamilton. It is.

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"The Court. Larger? "Mr. Hamilton. It is larger, and I think my records, as I measured them it is three ten-thousandths or four ten-thousandths of an inch larger. "The Court. Now, let me ask you this question. When you ascer­ tained that fact that this barrel was considerably larger than Captain Van Amburgh's plug gauge, what thought came to your mind with reference to that difference? "Mr. Hamilton. I can tell you exactly what I thought at that time. "The Court. That is what I want. Anything different than what you said in your affidavit? "Mr. Hamilton. Yes, sir, because I did not care to state it here, what went through my mind. I remember distinctly, and from what oc­ curred here I now know I was unwarranted in entertaining that thought, and I will tell you what it was. I entered that plug and I looked through this barrel and the first thought came in my mind that the Court had been possibly, possibly the Court had been clean­ ing this barrel. I could not conceive to my mind why you would do it and did not think you would do it, but I said to myself no one else could have done it, cleaned that barrel. I looked at that barrel and admitted to myself it was a good job of cleaning. "The Court. Even for a justice of this Court to do? "Mr. Hamilton. It impressed me. I remember at that time. I says [iic] that the Court must be familiar with fire arms and has cleaned it well. I immediately dispelled it because I said, 'No Court would alter an exhibit.' "The Court. But you already said that the removal of the fouling would not account at all for that difference, haven't you? "Mr. Hamilton. It wouldn't, it wouldn't account for it. "The Court. Then if the Court had even done a good job in clean­ ing it, that couldn't have accounted for the difference? "Mr. Hamilton. That couldn't account for that difference, and the thing I thought of at the time, I remembered the testimony about pittings and I looked in here and there were no pittings in this barrel, and that I took into account, and I am frank to admit to you. "The Court. Do you think the Court by good cleaning could re­ move those pittings? "Mr. Hamilton. I was satisfied you couldn't or anyone else couldn't do it. "The Court. And you are satisfied that by the removal of the rust or dirt even under those circumstances you couldn't bring the old Sacco barrel up to— "Mr. Hamilton. To that condition. There was one other thing went through my mind at that time; when I saw this barrel in this condi­ tion I immediately coupled it, the condition of this barrel and the

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possibility of somebody having cleaned it, with what I saw in a barrel in Montreal recently when I went in to buy— "The Court. When was that? "Mr. Hamilton. That was—I can give you the data [sic] that day I was there. "The Court. It was since December, anyway? "Mr. Hamilton. No, I was in Montreal before December, and I went into a store and purchased a Bayard 32 pistol, and as I looked into it it was very foul. I wanted it for a court exhibit. The man in charge took a brush, dipped it into a flour, and he simply cleaned the interior of it presto! It came out bright and clean. And I says, 'Is it possible that that court or somebody for him has removed those rust spots?' "The Court. And that is the only difference, that is the reason that entered into your mind? "Mr. Hamilton. Yes, that went through my mind. "The Court. That the Court did all those things, that the Court cleaned it? "Mr. Hamilton. I did not think you did do it. I entertained it as a possibility. "The Court. Oh, I see, and the same time you knew that by clean­ ing that barrel— "Mr. Hamilton. Ordinarily it would not do it. "The Court. Well, anyway, it wouldn't account for that difference, would it? "Mr. Hamilton. No. "The Court. Even though the Court did an excellent job in cleaning? "Mr. Hamilton. Even though he done [sic] a job better than I had ever seen done or was able to do myself/" "The Court. Even then that would not have accounted for it? "Mr. Hamilton. Would not have accounted for it, no, sir." Now, let me read on page 8 of the record of this investigation: "Mr. Thompson. Of course, Mr. Hamilton, you had in mind the desire, I think suggested by you but certainly in our minds all through these hearings and since then frequently reiterated, that a further ex­ periment should be made for the purpose of seeing whether the firing pins made dents in the middle or not? You knew we were in hopes of having that experiment made? "Mr. Hamilton. Yes. I might say that any substitution would be almost immediately detected by even a lay examiner. There is no possible chance of mixing up those two new barrels with the Sacco barrel." Now, then, the Commonwealth claims if he knows now that there could have been no mixup of these barrels which would not have been

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discovered, he must have known it on December 4 at Dedham, because he has no more information on the measurements of these diameters and the rusty pits now than he had then. Therefore, if he had this knowledge on December 4, 1923, the question would naturally be asked why he allowed Mr. Thompson, who was acting in the most perfect good faith, to ask the court to fire more cartridges through the barrel of a pistol the diameter of which measured .3053 [sic] while the Sacco barrel measured only .2924, knowing that "any substitution would be immediately detected by even a lay examiner"? And why did he not tell Mr. Thompson that any further experiments with fir­ ing pin indentations on the primer of a cartridge fired in a barrel the diameter of which measured .3053 [«'c] would be prejudicial to the de­ fendants, if the claim of prejudice now set up is true? Again is it or is it not possible for a man of the experience of Mr. Hamilton, know­ ing that the Sacco barrel was an old one filled with many rust pits, dirty and foul in its chamber, with cuts, scratches and marks on the outside of its muzzle and with a barrel diameter of .2924, to examine a new barrel for 15 to 20 minutes with no rust pits in its chamber, with no marks, cuts or scratches on its outside muzzle and with a diameter of .3054 and "not have a thought in his mind that it was not the Sacco barrel" as appears from his testimony on page 151 of this record of this investigation? If he had this knowledge at that time he must have known that the experiment could have been of no assistance to the Court. Now, the Commonwealth claims that the discovery of a new barrel by Mr. Hamilton before or at the time the firing took place, would under these conditions lay the foundation for another motion for a new trial, and this foundation so laid it is claimed reveals the true motive. Again, it was argued before me with much force that Mr. Hamilton would not have set forth in his affidavit these facts about the condition of this new barrel or have written to Mr. Moore to have measurements made of this barrel before any firing was done, if he was not acting in good faith. In answer to this argument the Commonwealth claims it was a planned or "tricky" substitution, and Mr. Hamilton set forth these facts in his affidavit as a matter of self-protection. To both of these arguments I have asked myself many times this question,—"Where would it have left Mr. Hamilton if he had not set forth these facts as he did? Would it or would it not have been evi­ dence of guilty consciousness? Was it preparing the way to the final discovery of a new barrel in the Sacco pistol, which discovery he be­ lieved would have been a cause for a new trial, as claimed by the Commonwealth, or was it simply the calling in good faith, of the attention of the Court to the actual condition of the substituted bar­ rel without any knowledge on his part?"

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It should be remembered that I am now merely stating the claims of counsel on both sides. It is not my purpose now to decide any of these disputed questions that bear upon the issue of intentional sub­ stitution. Before so doing I must examine all of the evidence with the greatest care, caution, and intelligence at my command. It is my pur­ pose now to decide simply the question of whether or not the disputed barrel is the Sacco barrel, and in the determination of this question I am reviewing the salient features of the evidence. There is another piece of testimony of Mr. Hamilton to which I should refer, as bearing directly upon the identity of the old rusty and foul barrel in Hamilton's new pistol. He testified that this old rusty and foul barrel was a new barrel but that the extreme end of its muzzle had been artificially treated so as to make it look like an old muzzle. Because of this artificial treatment Mr. Hamilton distinguishes the disputed barrel from the Sacco barrel. In other words, whoever did this job of artificial treatment of the muzzle end, did so for the purpose of making the muzzle of the disputed barrel look like the old Sacco muzzle. If anyone connected with the Commonwealth substi­ tuted this barrel, then, according to the testimony of Mr. Hamilton, he must have treated it artificially to make it look like an old muzzle after Mr. Hamilton had delivered his new pistol to Mr. Everett. Mr. Hamilton further testified that this artificial treatment was a very bad job. And he was asked why, whoever did it, did not get an old rusty, foul Colt automatic barrel of .32 caliber, for substitution, rather than do a bad job by artificially treating a new barrel so as to make it look like the old Sacco barrel. Mr. Hamilton said he could not say why. On Tuesday last, for the first time, on this disputed barrel Mr. Hamilton discovered what he said was a human hair imbedded in some substance which covered it. Pictures of this barrel were taken at the Turner studio. On Thursday that particular hair was gone but Mr. Hamilton made a new discovery of two more. The Court asked Mr. Hamilton to fix some definite time within which the first hair must have become attached to the muzzle of that pistol. He finally replied, "After November 8, 1923," the time when he reassembled the pistol. Although he admitted that he knew nothing about the prior history of the disputed barrel, yet he testified that the first hair be­ came attached to the muzzle after November 8, 1923. Of course the purpose of this testimony was to show that the disputed barrel in the new pistol was not the Sacco barrel, because that barrel had never received any artificial treatment. . . . Decision.

I find that the old rusty and foul barrel that was in Hamilton's new pistol is the original Sacco barrel and the new barrel in the Sacco

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THE LEGACY OF SACCO AND VANZETTI

pistol belongs in Mr. Hamilton's new pistol. It is therefore ordered that these two barrels be transferred to their respective pistols. It is further ordered that the order made by this court on November 8, 1923, to the effect that these three pistols be delivered into the custody of the Clerk of the Superior Court for the County of Norfolk be con­ tinued in force and said pistols shall remain impounded with him until the further order of this Court. Though Judge Thayer was careful to assert that this unfortu­ nate incident must in no way prejudice the defendants, he would have been more than human if he had been able to prevent its affecting his judgment as to the value of Hamilton's affidavits and the credit to be given to any o£ Hamilton's statements or con­ clusions which conflicted with those submitted by the Common­ wealth. A later published report of an interview between him and Captain Van Amburgh indicates the impressions he retained eight years later. In 1932, Van Amburgh saw Judge Thayer after Thayer's home had been damaged by an explosion, and asked him what had taken place on the day when the pistol barrels were switched. His report is that Thayer said: "Mr. Hamilton and counsel for the defense came to me that day and requested permission to examine the Sacco pistol. I permitted them to do so. In the course of the examination Hamilton produced two new Colt automatic pistols, identical in caliber and design with the Sacco pistol. He pointed out and demonstrated that the parts of all three weapons would interchange readily. After these demonstrations, he reassembled the Sacco pistol and handed it to me. He then picked up his own pistols and started to leave the room. "It was here that my experience with men in the courts stood me in good stead." Judge Thayer went on. "A question took form in my mind: have I done everything necessary and proper? At that moment the parties were crossing the threshold on the way out. I said: 'Just a minute, gentlemen,' They stopped, turned and looked at me. I said, 'Come here, Mr. Hamilton.' Hamilton advanced towards me. I said: 'Hand me your pistols.' He did so and I said: 'They shall be im­ pounded.' " The old Judge was now speaking like a man thinking aloud, as the memories came to him. "I don't know why I impounded those pistols," he continued. "It merely seemed like the proper and thorough thing to do. I have thanked God many times since that I did so. And then the astounding discovery made later that the original barrel in the Sacco pistol was missing and an entirely different barrel substituted for it!" 1

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It is to be remembered that the switching of the barrels oc­ curred in November, 1923, the hearing before the Advisory Com­ mittee in 1927, the interview in 1932, and Van Amburgh's report of it in 1934 or 1935. Did Judge Thayer's reservation of decision as to whether Hamilton had intentionally switched the barrels mean that he had not then really made up his mind? If so, had he done so prior to testifying before the Committee? Did his re­ cital that the two new Colt pistols had been filed with an affidavit of Hamilton some time before the hearing refer to the Colt pis­ tols which Hamilton had used in firing test shells and which in his affidavit of October 15, 1923, he said he had turned over to counsel? Does the statement in the printed record2 that the Hamilton-Proctor motions were argued without oral testimony mean that Hamilton's demonstration at the hearing was merely by way of illustration of a portion of the argument? Did Hamil­ ton actually try to walk off with pistols that had been on file in the clerk's office and had just been used as exhibits at the hearing? If not, why did the judge have occasion to order the pistols to be delivered into the custody of the clerk? Had Thayer's recollection become distorted before 1932 as to the details of Hamilton's con­ duct on November 8, 1923? If so, had the distortion occurred prior to his appearance before the Advisory Committee? Did the Com­ mittee have before it a copy of Judge Thayer's order of March 21. 1924, or of the transcript of the testimony referred to in the order? These and related questions might have been answered had the Committee permitted counsel to be present and to cross-examine Judge Thayer, or if even his un-cross-examined testimony had been published. A reading of the full text of the order forces the conclusion that Judge Thayer considered Hamilton's opinions worthless and probably believed them to be dishonest. And it is hard to imagine him not conveying that idea to the Committee. Indeed, Hamil­ ton's expressed explanation for not suspecting on December 4, 1923, that there had been a switching of the barrels, his recital of the thoughts which then entered his mind, and his excuse for his failure to state in his affidavit his belief that something more had been done to the Sacco barrel than thorough cleaning—any or all of these could be credited only by the most credulous. It would be unreasonable to condemn the Committee or any other body for eliminating Hamilton's affidavits from serious consid­ eration.

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But could anyone reasonably expect the baneful effect of this incident to be confined to mere negation of Hamilton's testi­ mony? Standing by itself, it might well have been taken as an attempt by an overzealous expert to give his side an undue advan­ tage. But consider the setting in which it was presented to the Committee. The defendants had been heavily armed when ar­ rested. Their asserted reasons for carrying weapons would be un­ convincing to most ordinary citizens. Neither of them had been slow to lie when questioned after arrest. Sacco had had ready a plausible falsehood to avoid the slight embarrassment of present­ ing to his employer no excuse for a half day's absence from work, and he had not hesitated to falsify to the police in the hope of escaping the light penalty imposable for carrying a weapon with­ out a license. The assortment of ammunition in his pocket when arrested included cartridges with shells of the three different varieties found at the scene of the murders. Was this a mere coin­ cidence, explained by the shortage of small-arms ammunition at the time? There had been much comparison by Moore and others of photographs of men in the rogues' gallery with that of Sacco. There was a strong resemblance between Joe Morelli and Sacco. Was it another mere coincidence that Medeiros pinned the Braintree murders on the Morelli gang, or did Moore have some hand in shaping his confession? It was Moore who had used such stupid and questionable methods to obtain from Andrews and Goodridge a repudiation of their evidence at the trial. It was this same Moore who had hired Hamilton and asked the court to rely upon his testimony on the most crucial issue in the case. Was this switching of the barrels just another manifestation of Moore's unethical conduct, this time in co-operation with an un­ scrupulous expert? Did it not accurately reflect the color of the whole defense? Was it not another piece of evidence that the defendants and their adherents had no regard for the truth, and had been able to deceive Mr. Thompson, whose good faith was not and never had been open to doubt? If the representatives of the defense were put to it to resort to such desperate tactics, was it not a strong indication of their belief that the defendants were guilty? In this connection, the availability of the comparison micro­ scope at the time of the hearing before the Committee cannot be disregarded. It was while the Committee was considering the case that Colonel Calvin H. Goddard wrote to the Governor explain-

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ing that by its use one half of one bullet is matched with the other half of another bullet so that to the observer there appears the image of a single bullet; if the distinguishing marks and scratches of the one line up with corresponding marks and scratches of the other so as to make the lines and scratches appear continuous, it is almost positive proof that both were fired in the same weapon. He stated he had thus compared the fatal bullet and the test bullet and that the result of his examination was a demonstration that the two had been fired from the same Colt pistol.3 His statements were not submitted to the Committee, but it is hard to believe that its members had no information con­ cerning the existence and usefulness of the comparison micro­ scope. Why didn't the defendants have their experienced expert use it and report the result, or why did they not request the Com­ mittee to have it used under proper supervision, not only on the issue of the value of the ballistic testimony at the trial but also on the issue of the guilt or innocence of the defendants? Was their failure to do so another sign pointing to their lack of confi­ dence in the innocence of their clients? Such questions as these may well have assailed the minds of the members of the Com­ mittee; and if they answered them against the defendants, doubts created by other factors in the case may have been easily dispelled. Whether they should have thus answered and whether the answers should have dissipated all doubts may well be open to debate, As bearing upon this issue it should be noted that a subsequent study of the ballistic testimony and exhibits, as they appeared in the published record, by disinterested competent experts resulted in the conclusions (a) that the expert evidence at the trial was worthless and misleading, (b) that Hamilton's expert testimony created a suspicion of charlatanism and of trifling with the truth, and (c) that a comparison of the engrav­ ings made by the breechblock of Sacco's pistol on the test shell with those made by the breechblock of the pistol that fired the Fraher shell furnished most persuasive evidence that the two shells were fired in the same pistol.4 If this is accepted, and if the comparison microscope revealed as to the test and fatal bullets what Colonel Goddard asserted,5 then the deduction is almost inescapable that the so-called fatal bullet was fired from Sacco's pistol. Sacco testified that he had that pistol on April 15, 1920, and had had it for some time prior thereto. If the so-called fatal bullet was the bullet taken from Berardelli's body, and if the

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Fraher shell was picked up at the scene of the murders, and if Sacco told the truth, no one can assert with confidence that he was not present at the shooting or that the witnesses who identified him as one of the bandits were mistaken. And Sacco's demeanor, both at the trial and thereafter, while in no way in­ consistent with his innocence, was not such as to compel the con­ clusion that he was incapable of crime to further what he so fervently believed to be a righteous cause. The answer of the friends of the defendants is that the identification markings on the so-called fatal bullet and the circumstances of the finding and custody of the Fraher shell make it highly probable that through design or accident the originals were not offered at the trial, but others which had been actually fired in Sacco's pistol were pre­ sented in their stead. This contention was not made at the trial; but the preparations for trial were inadequate; counsel for the defense took too much for granted; their scrutiny of the exhibits was superficial in the extreme; when the suspicious factors were discovered, it was too late. A prosecution which would descend to the depths of framing Proctor's testimony would not scrutinize too closely the handling of the fatal bullet and Fraher shell by the police. Thus analysis of the record, the history of the subsequent pro­ ceedings, the reams of print published by partisans of both sides do not dispel the doubts engendered by the proceedings at the trial and the demonstrated prejudice of the trial judge.

Chapter VI

THE LEGACY OF DOUBT WHY KEEP this controversy alive? The most vulnerable spot in all the proceedings lay in the function and power of the trial judge in dealing with the motions for a new trial. Had the con­ duct of the prosecution with reference to the cross-examination of Sacco, the prearranged questions to Proctor, and the failure to disclose the existence of witnesses favorable to the defense been presented to an unprejudiced tribunal, it is highly probable that a new trial would have resulted. If there had been added the newly' discovered evidence, including that impeaching some of the state's important witnesses, it is almost unthinkable that a new trial would have been denied. If the appellate tribunal had been clothed with the duty and authority to examine the whole case and to order a new trial for any reason that justice may re­ quire, these defendants would certainly have had another trial. Well, all this has been taken care of in Massachusetts. No longer may a prejudiced trial judge prevent a new trial by cloaking his prejudice in his judicial discretion. In a capital case the whole case is, on appeal, transferred to the Supreme Judicial Court "for its consideration of the law and the evidence, and the court may order a new trial if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require." Furthermore, if a motion for a new trial is made while the case is pending on- appeal, it is presented to the Supreme Judicial Court and may be heard by the full court.1 To be sure, it took twelve years to secure the remedial legislation. But it has been secured, and is in effect. So, what does it matter that a couple of foreign agitators failed to get a fair trial where all the forms of law were observed, and the evidence was such that it fairly presented a question for the jury and was convincing not only to the jury but to the Governor and the distinguished members of the Advisory Committee? Or to put it more brutally, why all the fuss over a couple of "wops," who after years in this country had not even made application to

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become citizens; who had not learned to use our language even moderately well; who did not believe in our form of government if, indeed, they were not anarchists repudiating every form of organized government; who were confessed slackers and claimed to be pacifists but went about armed with deadly weapons for the professed purpose of protecting their individual personal property in violation of all the principles which they preached? Hear the eloquent answer of Professor Karl N. Llewellyn, a dis­ tinguished member of the Faculty of the Law School of Columbia University, as he studies the justice of the case in a legal treatise not widely known to the general public: 2 Who are the two men whose names recur, whose lives and honor are the immediate stake in all this story.* Niccola Sacco, an Italian, resident in Massachusetts from his eight­ eenth year. A solid workman, who learned his trade outside of hours, a shoe-worker, a "good cobbler," and "edger." A simple-hearted de­ voted husband and father. A lover of nature—who in prison found difficulty writing to his friends unless blue sky heartened and cheered iiim through the bars. An idealist, bent on improving the lot of working-men, so strong, so unafraid in his convictions that on trial for his life, before a jury whom he knew to be prejudiced against such views, he preached his beliefs, prepared to be a martyr to his faith. Niccola Sacco (the same Niccola Sacco?), a foreigner discontented with our institutions, yet content to abide among them. One who for­ sook all decent views for Socialism, even for Anarchism. Living and earning here, yet fleeing to Mexico in fear of being drafted to defend the country. The user of a false name. A man who would lie lightly to his employer to cover up a morning on leave which he had spent in talk and not on business. A gun-toter. An agitator. A man too in­ different to American ways to seek during twelve years of freedom to learn English decently, too stupid to learn English decently in seven years in jail. An associate of that Vanzetti whom we know to have been convicted of an attempted holdup in Bridgewater. Bartolomeo Vanzetti, a man who had forsaken his home in Italy and a good living with a farmer-family whom he loved, because his conscience would not let him be a party to exploiting men. A man who, though without wife and children, astonished his neighbors by his steadiness and effort at his work. A man who, ready to throw him­ self into the place of danger in defense of his fellows, was chosen to * Quotation from Karl N. Llewellyn, "The Sacco-Vanzetti Case," in Michael and Wechsler, Criminal Law and Its Administration: Cases, Statutes, and Commentaries (Chicago: Foundation Press, 1940), is by special permission of Professor Llewellyn and the publisher.

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go up to New York to discuss the further defense of Salsedo, a radical held incommunicado by the Federal authorities in their wild depor­ tation drive of 1920; that Salsedo whose "questioning" is suspected of having driven him to seek relief in suicide. Vanzetti, a man whom person after person, of judgment, insight and sensibility, learned to know after the time of his imprisonment; and whom each of those who learned to know him came to honor, respect, admire, even love. A man framed up before the present trial, on a charge made against Sacco, too, until for Sacco an unshakable alibi was proved, in order to make easy the conviction in the case in hand. Bartolomeo Vanzetti (the same Bartolomeo Vanzetti?), a radical leader, a speechmaker, an anarchistic agitator; closely concerned with that Salsedo, who *vas dangerous enough to induce the Federal au­ thorities to hold him incommunicado till, seemingly, he confessed his guilt by suicide. A gun-toter, Vanzetti, as well. A man convicted pre­ viously of another desperate crime of violence. A man the more dan­ gerous because of his brains and gift of leadership. A draft-dodger. A liar, who lied copiously and confessedly on his arrest. A believer in violence. An associate, a sympathizer, a "comrade" of those radicals who threatened and even exercised outrageous violence in efforts to terrify the authorities into giving him up without punishment. Opinions differ, you may observe, about these two. Two things are certain: they were Italians and radicals; they were accused of murder. From one angle, it makes no difference which of these two views of these two Italians you accept. Angel or devil, a man has a claim to a fair trial of his guilt. Angel or devil, he has a claim to a fair trial, not of his general social desirability, but of his guilt of the specific offense charged against him. Such is the letter of our law. Such also is our law's spirit. For letter and for spirit there is a reason. Law is administered by men. We do not trust men to be wholly wise, or wholly fair. Above all, we do not trust men to be wise or fair to those with whose opinions, with whose interests, with whose dear-held be­ liefs their own interests, their own dear-held opinions, clash. "General social desirability" of others, through most of history, has meant to men in power such attitudes and actions and opinions as do not threaten their own continuance in power. Our forefathers learned this from John, learned it again when York and Lancaster were war­ ring, learned it yet again from the early Stuarts and the later. Their learning left its mark upon our law. It is not for the official to judge whether an accused is socially undesirable. Only the legislature passes on that point, and the legislature must pass upon it not for single men, nor after the event, but for whole classes, and for whole classes chosen in advance.3 The only job and the only privilege of the officialdistrict attorney, court, or jailer—is to deal with those who by some specific action have brought themselves within the classes thus laid

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down. By some specific action. Again we wish a safe-guard. There must be some objective certainty, that men can fix upon and see and prove, before we trust officialdom to act. It is too easy to find "general" indi­ cations against one's enemies—be they Bolsheviks, or Democrats, or rivals for the Tenth Ward leadership. So the job of police and prose­ cutor is to bring suspects to book. The job of court and jury is to see •whether the suspect has committed the particular offense—not even in this determination of the fact will we trust the executive official, the official who is in power. This, I say, is the spirit of our law as it is the letter. -And you will observe that it is for the protection of each of us that this is so. Each one of us may be tomorrow objectionable to some one of the author­ ities. This far our law seeks to protect us from him. No man can tell when his own opinions will become intolerable to the new officials. Think of the numbers of theretofore respected citizens whose views became "socially dangerous" almost overnight when Bolshevism broke into power in Russia, or Fascism in Italy. But there is a deeper wisdom in these rules. They are not chiefly for the direct protection of un­ popular minorities. More deeply, more far-sightedly, they are for the indirect protection of majorities against themselves. No majority can remain healthy long without an opposition. No man can tell in ad­ vance which piece or fraction of the thousand oppositions contains the fertile seed of new advance. There is but one hope: let them all fight for their place in the sun—all, short of such turbulence and riot as makes life with them intolerable. This not for them, but for our­ selves. We who are in the saddle need the stimulus, the new ideas, the challenge, the stirring, that their wild rantings offer. I see, then, no cause for laughter, no cause for bitter sneer, no cause for indignation, when radicals caught and accused of this or that, grapple themselves for protection to these very institutions which in their freedom they rant upon and curse. Such action may be no credit to the radical. On that I should not care to pass, excepting case by case, in full pos­ session of each set of circumstances. But it makes no difference to any­ one else whether that action is creditable to the radical or not. It is we, it is our institutions, it is our law, which are in question. It is for ourselves that we must guarantee to this recalcitrant fair trial—fair trial of whether he has committed a specific, clear offense. We need to let him run, lest we grow stagnant. We need to keep faith with our­ selves, that the law we have made for ourselves and all who live among us shall be applied alike to all who live among us and to ourselves. Yet this deep wisdom (which most of us in our more sober moments see and know, which most of us in any moment of excitement will forget)—this deep wisdom is a wisdom only partial. The other part is this: that men are not single acts, but living beings. That men are

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wholes. That a man's history is an index to his acts. That a man's value depends in good part on who that man is. From one angle, I said above, it makes no difference which of two views of these Italians you accept. And that is true; likewise, that is one part of wisdom. But from another angle, from another part of wisdom, it will make all the difference in the world. For if a man is bad, if a man is a menace, any excuse to get him out of the way may be better than none. If a man is bad, if a man is a menace, why should we worry too much over whether he may or may not have done this one act charged; he will have done a plenty of other things as bad or worse. "He ought to be hanged, anyway." And even if you should re­ ject these two positions, no sane man can avoid agreeing on a third; if a man is bad, if he is a menace, it will take much less evidence to convince you that he has committed the particular offense than if he were an honored citizen. "That's just the kind he is!" will get short shrift—with the trier of fact, with any trier of fact—beside "I can't be­ lieve such a thing of him!" If you believe, therefore, that these two Italians were dangerous men, ungrateful beneficiaries of a long-suffer­ ing America, men of violence, undesirable in every sense: then (1) you will think they got what they deserved, and guilt or innocence of the Braintree murder will seem to you of relatively little conse­ quence, and you will be disposed to say: why all this stir, even if the machine did maybe slip a cog, about two scoundrels?; and (2) you will find very slight evidence quite ample to convince you that the Braintree murder in particular must be laid at their door. This, even if the jury had not spoken; even if the Lowell Committee had not reported. If these should be your beliefs, bear with me none the less for a moment while I question whether you are wise. It is not likely that I shall be able to persuade you. Persuasion in these matters is not easy. They cut to the closest, to the most intense of loyalties. They fire emotions which make argument seem ridiculous, insulting. In these matters a man's position stands unchallenged because it rests on the unchallengeable. There is but one right way, there is but one right opinion, there can be but one right feeling. And any "argument" which moves from some different premise is an affront. Indeed, an argument which assumes that a different premise may be tenable is an affront.—All this I know, as who does not who has lived with his fellowmen for a few years, and used his eyes? Yet I would ask you: bear with me for a moment while I question whether you are wise. For I think we have slid, in some remarks I made above, quite typically but quite unfortunately, quite as men do but hardly as men should, into an evil fallacy. "If a man is bad, if he is a menace, it will take no such great evidence to convince you that he has committed this particular offense." But what do we mean by "bad" or by a

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"menace"? Is a known gunman under suspicion of another hold-up? A known penman under suspicion of another forgery? A known drunkard under suspicion of driving while intoxicated? That is one thing. Or is a man whose opinions on the property system or our system of government we do not like—whose opinions we hate, fear, loathe—under suspicion of murdering a stranger to him in cold blood? Is that the same thing? Mark you, the crime charged is not assassina­ tion of some high official, who might be thought by the accused to be or represent the hated System. Nor is it, say, a bombing in the process of a strike, where fierce conviction of necessity to use violence if one is to win through to the "rights of man" might come in question. It is a cold payroll hold-up matter, done for gain; for all that one can see, for private gain. The bad men, the menacing men, who are charged thus with doing murder upon strangers, for gain, are men whose opinions, whatever one thinks of their wisdom, or of their Tight­ ness—or of their dangerousness to our institutions in the large—are based fundamentally upon the fellowship of man, upon the need for human decency and human kindness of each man toward his fellows. And the men in question, the accused, have both shown unmistakable courage in pursuing these opinions, have both gone with some cheer­ fulness through the sacrifices these opinions have seemed to make necessary. "Bad," and "a menace"; may be. But this kind of "bad," this kind of "menace"—is that so safe a conclusion? Is it so fair a con­ clusion? Is it so reasonable? Is it reasonable at all? As a matter of common sense—common sense, that is, in sober quiet thinking, when a common sense man has really settled down to think— I say we have slipped when we think that because these men are "bad" they may be taken without too meticulous inquiry as guilty of this crime. But there is more. As a matter of law, of that law which is an integral part, in letter and in spirit, of the institutions we hold dear, the trier of fact must not even be allowed to take the risk of being unable to bring this type of common sense to bear. As a matter of law the prosecutor will not be permitted, of his own motion, to show the jury in a trial for "ordinary" murder what the social or political views of the defendants were. Indeed, the law goes much further. The prose­ cutor will not be permitted, of his own motion,4 to show that the de­ fendant has been previously convicted of a crime. He will not even be permitted to show that the defendant has previously been convicted of a crime of like nature, in like circumstances.5 Here, in its vigor to save an accused from prejudice, to save him from even the chance of prejudice, the law keeps from the jury the most relevant and persua­ sive of facts. In this extreme case of the rule's application it seems to me to outrage common sense. But that the rule holds, even in the ex­ treme case (I should say, even in the absurd case), evidences more than the inertia of the law. It evidences the vitality of the policy of

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keeping the jury, the trier of fact, from being influenced by irrelevant "badness," irrelevant "undesirability" of the accused, in passing on his guilt or innocence of a particular offense. Not only against the prejudices, the policy-views, of the official in power, but against the prejudices, the policy-views, of the triers of fact does American law, in keeping with the best spirit of American institutions, set up its barriers—in favor of any man who is accused. If, then, we are faithful to the form of government we have inher­ ited, and to the spirit which breathes through that form of govern­ ment, we cannot allow a radical, however we may despise his views, and though those views attack our government itself, to be more quickly believed guilty of any specific offense than would a man whose views on government we ourselves would go to the stake for. If we are faithful to our form of government we must set out, with gritted teeth, to judge the evidence for its own value, although the defendant be the rankest revolutionary. That we owe, not to him, but to our­ selves. But what of the other aspect of the "whole man" in the case? "If a man is bad, if a man is a menace, any excuse to get him out of the way may be better than none." What he has not yet done, he may yet do. Proof fails (by pure misfortune) as to all the ill he must have done already. A stroke of luck, if we can put him out of harm's way now. Why any pother, then, when he is put out of harm's way? As to this, I can but recur to what is said above. It is a repetition; but it repeats only what is too often forgotten as soon as heard. We have dedicated ourselves to institutions which put sole judgment as to when the state may move against a man—against any man—into the legislature and the Constitution. Perhaps that is an unwise way of ordering matters. But if it is, then the very fabric of our government is woven of unwisdom. We cannot have the fabric and reject it, both at once. To have it, to accept it, is to accept its spirit with its letter. "We need to keep faith with ourselves that the law we have made for ourselves and all who live among us shall be applied alike to all who live among us and to ourselves." Let that fail, though it fail upon the veriest wretch, and we shall have failed. The country that we cherish will have failed. You may take or reject our American institu­ tions. But you cannot take them, you cannot honor them, without taking on yourself the burden of indignation, of wrath, of reform, if you should find that a man has been put away for what he has not done. A man. Any man. Foreigner, radical, or revolutionary; draftdodger or desperado. It is not that man, it is your institutions which are at stake.

Professor Llewellyn is right. If we really believe in our system of government, we must do our utmost to see to it that every

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man accused of crime gets a fair trial by an impartial tribunal. But will our utmost accomplish this objective without changes in our machinery for the administration of justice? In answering this question we must face squarely three problems: (1) Does our adversary system of litigation afford equal opportunity to prose­ cution and defense? (2) Do our courts make the wisest use of expert testimony? And (3) How will a defendant fare who is the object of community hostility? EQUALITY OF OPPORTUNITY UNDER THE ADVERSARY SYSTEM OF LITIGATION

Ours is an adversary system of litigation. In civil litigation the parties must overcome the inertia of the courts. The parties must frame the issues to be tried; they must make the necessary in­ vestigations, discover the pertinent data, locate the necessary wit­ nesses, and see that steps are taken to procure their attendance. The court has no duty to make an independent investigation and no facilities for doing so. At the trial the parties present the testi­ mony and other evidence. Neither has any obligation to bring forward material which will aid his adversary or will weaken his own case. The theory of the system is that each party will discover and present everything that will favor his own cause and disclose the weaknesses of his adversary. Thus the truth will emerge to the view of the impartial tribunal. This, it will be noted, assumes that each side will be equally intelligent, equally diligent, and equally fortunate in investigation and discovery of pertinent data, that there will be no fortuitous circumstances to deprive one party of an available witness or to make any of his relevant and important evidence inaccessible or inadmissible without a cor­ responding disadvantage to the other, and that both parties will be equally skillful in presenting the material and equally able and persuasive in expounding its bearing upon the issues. No argument is necessary to convince the most unobserving that these assumptions are without any basis in fact. Rarely, if ever, in a contested case do they even approximate the truth. With our system of pleading and evidence, a layman is incapable of han­ dling his own litigation. From a bar, whose membership includes men of every degree of learning, skill, and experience, to say nothing of awareness of moral responsibility, it is difficult for the average person to select competent conscientious counsel; for

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the ignorant and inexperienced, it is well-nigh impossible. Thor­ ough investigation is often costly. Proper preparation for trial on the law and the facts involves expenditures of time and money. Persuasive presentation requires skill beyond the capacity of many practicing lawyers. Indeed, many lawsuits are what popular opinion believes all lawsuits to be, a battle of wits between the advocates of the parties. To be sure, the courts have declared that a criminal prosecu­ tion is not strictly an adversary proceeding. The Government is not an ordinary litigant. Its representative has no duty to win. As the Texas Court of Criminal Appeals has said: The prosecution owes a duty as well to the accused as to the common­ wealth in the trial of cases. It is not their duty, nor are they called upon, to secure conviction by any other means or methods than those set forth by law. . . . The trial courts . . . are under as binding obligation to protect persons accused of crime from illegal conviction as they are to see that the law is enforced. Their duties are of a public nature, and demand the upholding of the law, as intended by our written constitution and the acts of legislation.6 The Supreme Court of Pennsylvania a half century ago defined the duties of the prosecutor in a capital case: We have no difficulty, however, in measuring the extent of zeal which counsel for the commonwealth may properly display upon such occa­ sions. The district attorney is a quasi judicial officer. He represents the commonwealth, and the commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers, as it is to see that no guilty man escapes. Hence, he should act impar­ tially. He should present the commonwealth's case fairly, and should not press upon the jury any deductions from the evidence that are not strictly legitimate.7 In the leading federal case, Berger v. United States, the United States Supreme Court put it thus: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to gov­ ern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prose­ cute with earnestness and vigor—indeed, he should do so. But, while

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he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to pro­ duce a wrongful conviction as it is to use every legitimate means to bring about a just one.8 Concerning similar pronouncements, the authors of The Illi­ nois Crime Survey observe: This language, we might remark, describes the habiliments of the state's attorney when he appears for legal inspection. They are, so to speak, his formal clothes, to be worn only on special occasions. The ordinary state's attorney in action is nothing of the kind. He is a partisan as much as the counsel for the defense, who, by the way, is also an officer of the court. At times the prosecuting officer is viciously combative, and, occasionally, it is feared, he presses a case unduly for conviction.9 And it must be conceded that he frequently has great provocation. He cannot call upon the defendant to testify. Indeed, he cannot even comment upon defendant's failure to do so. He cannot re­ quire him to produce any incriminating evidence, documentary or otherwise. He must persuade the trier of defendant's guilt beyond reasonable doubt. He has no appeal from an acquittal. Defendant's counsel may overstep the bounds of proper conduct with little risk of prejudice to defendant, and retaliation by the prosecutor may often seem justified. In so far as the trial stage of the proceeding is concerned, it is the trial judge who holds the key. If he performs his function competently and courageously he will permit a vigorous prosecution but prohibit unfairness; he will encourage an honest and intelligent defense but prevent pettifogging and abuse of privilege. He will remember that the defendant, not his counsel, is on trial and will, so far as possible, prevent counsel's ineptitudes from prejudicing his client. If he fails in his obligations the remedy lies in a review by a court of last resort with power to examine the entire record and to set aside a conviction wherever justice so requires. But what of preparation for trial? Obviously the state's facili­ ties for investigation are far superior to those of the ordinary de­ fendant. Suppose that it secures writings containing evidence favorable to defendant or information that would lead to the discovery of such evidence. Is it obliged to reveal the favorable material to the defendant? If the prosecution discovers witnesses with firsthand knowledge of important data whose testimony

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would favor defendant, must it call them or at least advise de­ fendant's counsel of the facts? The present attitude of the aver­ age American prosecutor is revealed in a statement in a brief filed more than forty years ago, where the issue was whether defendant had a right to inspect transcripts of a previous examination of the witness, and of the grand jury minutes, both of which the prose­ cutor had used as a basis for his examination at the trial: Perhaps in some far off Utopia the day may come when counsel for the state and counsel for the defendant engaged in the trial will co­ operate in a spirit of mutual fairness and candor to assist each other in presenting their respective sides of the case. And the Court seemed to be of like opinion: Another argument advanced is, that the prosecuting attorney repre­ sents the public of which Rhoads [the defendant] is one, and that he acts in a semi-judicial capacity in discharging his duties, and that he should aid the defense when aid is needed. We agree that this officer should not endeavor to convict an innocent person, and he should not suppress or conceal evidence that might tend to acquit the pris­ oner. But that he should assist in the defense, we deny. The state furnishes counsel to indigent prisoners and pays them. The trial, when the issue is joined, is not a friendly recitation, but a real trial. No morbid sentiment or sympathy for one charged with crime should overshadow the rights of the public. In these days criminals are both skilled and cunning, and it is a contest between the people and the criminals for the mastery. Neither the rules of courtesy, or supposed equitable considerations should be allowed to subvert the practice sanctioned by long experience.10 Had court and counsel been diligent in investigation, they would have discovered in England a near approach to that Utopian process. There the accused must be promptly taken be­ fore a magistrate who must hold a hearing at which the Crown presents all the witnesses it intends to call at the trial; the accused must be given the opportunity to cross-examine them; he is privi­ leged but not required to testify and to call witnesses in his be­ half. The testimony of all the witnesses must be reduced to writ­ ing and forwarded to the court in which the trial is to take place, and the accused is entitled to a copy of each deposition. Docu­ ments and articles marked as exhibits must likewise be for­ warded.11 While witnesses not so examined may be called by the prosecution, copies of what they are to testify should be furnished the accused.12 The result, as stated by Charles S. Whitman, is:

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All of the evidence in the possession of the Crown is in the possession of the counsel for the defendant. He knows all that the Crown knows. He has all the evidence in his possession before the witness goes on the stand. He has all the evidence that can be presented in that court at the trial, before the trial begins.13 In describing the trial of an accused for murder, he reported: The attitude of the counsel toward each other is one of entire friend­ liness and perfect decorum, and brotherly love seems to prevail, so far as the lawyers are concerned. . . .14 The witnesses were not pressed. They were not harried. They were allowed to tell their story in a pretty general way. Thy [m'c] were not badgered in any sense. They were treated in a dignified manner, but the proceedings were pressed firmly and the case was held very closely to the issues by the Presiding Judge.18 Thus far no such progress has been made in this country. Most American courts still hold that the prosecution need not submit its documents or evidence to the defense. Some believe it beyond their power to require such a submission without legislative authority, and the legislatures have been slow to act. The more forward-looking courts declare that the trial judge may in his discretion order the prosecution to permit the accused to inspect documents in his possession which constitute or contain admis­ sible evidence favoring the defendant. The hesitation to go fur­ ther is the danger of abuse by unethical members of the criminal bar, and that danger is not to be lightly dismissed by pointing out how much more effective is the administration of criminal justice in England than in any comparable area of the United States. Judges acquainted with the character and tradition of the English bar as compared with those of the American bar, par­ ticularly in our large cities, may feel quite justified in insisting that until the criminal bar is purged of its disreputable elements, and the preliminary processes and the trial procedure are radi­ cally revamped, the most that can safely be done is to give the trial judge discretion to require the prosecution to disclose rele­ vant information and documentary evidence in its possession in order to enable the defendant to make honest and adequate preparation for trial. Even so, there can be no excuse for failure to provide by legislation or rule of court that the prosecution must reveal to the defendant the existence of witnesses known to have knowledge of relevant data favorable to defendant.

THE LEGACY OF DOUBT

Here again, the key is in the hands of the trial judge. Of course, no rules prescribed by legislation or by judicial decision can create character or competence. But it is equally true that no system of administering justice can be satisfactory if constructed on the hypothesis that the trial judge will be crooked or incompe­ tent. Inevitably some trial judges will be slippery, prejudiced, or otherwise unfit for judicial office. The safeguard against them is a review of the entire trial record by the court of last resort endowed with power to set aside a conviction where substantial justice has not been done at the trial. EXPERT TESTIMONY UNDER THE ADVERSARY SYSTEM OF LITIGATION

Some of the most distressing effects of our adversary system ap­ pear in its application to the rules governing evidence and wit­ nesses. They are more than ordinarily harmful where matters in issue require special skill in observation or in drawing deductions from observed data. Judicial experience has made it abundantly clear that in numerous cases, both civil and criminal, the testi­ mony of experts is not merely desirable; it is essential. As early as iShe fourteenth century courts called experts to their aid. These men, learned in arts and in science, were originally called not as witnesses for a party but as assistants to the court. As the form of trial by jury changed and the jury came to rely principally upon matter offered in court rather than upon matter within their own knowledge or learned by private inquiry, these helpers of the court took on the functions of witnesses to the jury. As witnesses they were and are selected by the parties. It is true that as to ordinary data a party can offer from among the persons having relevant information those whose observation and recol­ lection are favorable to his cause. But they will speak about things familiar to jurors. Their testimony can be valued in the light of common experience. Their perception, memory, and sincerity can be adequately tested by cross-examination in terms under­ standable by the ordinary man. Such inferences or conclusions as they may express will carry no undue weight because of their superior capacities for making relevant observations and drawing sound deductions. The subject of expert testimony, however, is generally beyond the ken of the layman. It calls for special knowl­ edge, skill, experience, or training in the perception of data or in the process of drawing accurate inferences, or in both. Where

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experts who are equally skillful in exposition disagree, the jury is practically helpless. Consequently it is of the highest importance that the expert witnesses should be properly qualified, honest, and impartial. So long as they were helpers of the court, these qualities could be assured in most cases. When they became witnesses in an adver­ sary system, the temptation to make them partisans became great; and it has not been resisted. Indeed in the majority of instances they have deserted their role as witnesses and have become expert advocates. Even this would be sufferable, if they were competent and honest. The ugly truth is, however, that in many fields the most incompetent is the most glib and persuasive in presenting his views and the most positive in his statements. He can also adjust his opinions to suit the necessities of the party who retains him. He acquires skill in the use of obscure and misleading phrasing. Expert testimony as to mental responsibility in criminal cases, as to diagnosis and prognosis in personal-injury litigation, has become a scandal. Expert testimony as to disputed documents has slowly emerged to a plane of real respectability, thanks to Mr. Albert S. Osborn and his disciples. The same is true as to ballistics, to the identification of wood, metals, and paper, and to blood groupings. But thus far only a beginning has been made. It needs no argument to show that the ballistic testimony in the Sacco-Vanzetti case could not have been of any real assistance to the jury. There can be no doubt that Proctor's testimony mis­ led both the judge and the jury. Hamilton was obviously an ex­ pert advocate and none too scrupulous. Van Amburgh turned from a hesitant witness at the trial to a vigorous advocate on the motions for a new trial. The conduct of the experts in this case should cause no surprise: so long as experts are chosen by the parties and are willing to lend their services as advocates, so long will the jury be at their mercy and the decision or verdict will rest on nothing much better than conjecture. Even the honest expert, if he conceives himself an advocate, will follow the recog­ nized attitude of the lawyer; he will emphasize the data which favor his client and minimize those which favor the opponent. He will have the hypothetical questions so framed as to enable him to give an apparently favorable opinion and convince himself that it is for the adverse expert to do a corresponding job for his client. The vices of the adversary system carried to this extent, especially in criminal cases, are outrageous and intolerable. In

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this situation also the trial judge should hold the key. He should be given power to select impartial, competent experts wherever expert assistance will be helpful. The jury should be informed that these experts have been chosen by the court. It is probably impossible to prevent the parties from calling other experts, but their testimony will be subject to discount on account of their partisanship. Here too the protection against an incompetent, prejudiced, or corrupt judge lies in a comprehensive review by the court of last resort. THE IMPACT OF COMMUNITY HOSTILITY UPON A DEFENDANT

Given a vigorous but fair prosecutor, competent counsel for the defense, and an impartial, learned judge, is a fair trial possible in a community with settled sentiments and firm prejudices re­ garding the issues to be tried? If a labor agitator had entered the mining district of northern Minnesota in the first decade of this century and had attempted to unionize the miners of iron ore, with the result that injury had been done to the person or prop­ erty of one of the employing class, and if a criminal charge had been laid against the agitator, would it have been possible to select from those eligible for jury duty twelve men free from both conscious and unconscious bias? In all probability, something like what happened in North Carolina some twenty years later would have occurred in Minnesota, for the prevailing feeling in the community, except among the foreign-born and unnatural­ ized workers, was similar to that in North Carolina in the late ig2o's. In April, 1929, in Gastonia, a mob wrecked the head­ quarters of a newly organized labor union which was conducting a strike in a local cotton mill. The union established new head­ quarters and maintained an armed patrol about it. On June 7, in a clash with police at the union headquarters, the Chief of Police was killed, and three other officers and one striker were wounded. Sixteen union members were indicted for murder in the first degree. After three weeks of trial a juryman became in­ sane, and on August 16 a mistrial was declared. That same night several union members were kidnapped and one was flogged. On August 21a mob fired on a truckload of strikers, killing Ella May Wiggin, the "poet laureate" of the strikers. On September 30, 1929, the sixteen defendants were again placed on trial. The state dismissed the case as to nine of them and reduced the charge

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against the other seven to murder in the second degree. The prosecution put to numerous witnesses questions about their com­ munistic beliefs; but they were not required to answer. The de­ fendant Beal, however, was asked about his distribution of com­ munistic literature which, among other things, criticized the police and the bosses of Gastonia. The wife of defendant Miller was required to read excerpts from a publication that she had used in teaching the children of the strikers, including the fol­ lowing: "The government stands for slavery for the workers, misery and starvation for the workers' children. . . . The gov­ ernment is the tool of the bosses against the workers. . . . We call upon you to join the 'Young Pioneers,' an organization of workers' children . . . which fights for better conditions of the workers' children all the time; . . . which fights for a workers' and farmers' government just like they have in Soviet Russia." She was also required to answer questions as to her religious be­ liefs, and to disclose that it would make no difference to her whether she took an oath on the Bible or on an almanac.16 During the closing argument the prosecutor knelt and prayed before the jury. He took the widow of the Chief of Police by the hand, gave her the bullet-riddled coat of her dead husband and pledged that the state would avenge her. He called the defendants devils, Communists, fiends incarnate.17 On objection, the court instructed him to confine himself to the record, and charged the jury to disregard the improper argument. The jury found all seven guilty as charged. On appeal the Supreme Court of North Carolina held that the cross-examination of Beal was proper "as tending to show the purposes and objects which the members of the union had in mind, and the methods by which they proposed to accomplish their objects." 18 This was said also to apply "equally to the crossexamination of Mrs. Edith Saunders Miller, wife of Clarence Miller, relative to the substance of what she taught the strikers' children." 19 These items were relevant to the charge "that the defendants had conspired and unlawfully agreed among them­ selves to resist the officers of the law, representatives of the gov­ ernment, and it was, therefore, competent to ascertain what part, if any, they took in exciting resistance to the officers and discon­ tent with the government." 20 The religious views of Mrs. Miller had a legitimate bearing upon her credibility. The prosecutor's misconduct was cured by the charge of the judge.

THE LEGACY OF DOUBT

193

The grand jury of Gaston County failed to indict anyone for the kidnapping and flogging of strikers or for the murder of Mrs. Wiggin. The Governor then appointed Judge McElroy to investi­ gate, and he held sixteen men for the grand jury, which indicted five for the killing of Mrs. Wiggin. At their trial the jury found all defendants not guilty after half an hour's deliberation. For the flogging and kidnapping four were indicted and all found not guilty. To be convinced that the jurors who condemned Beal and Miller were uninfluenced by their political and economic views and were able to disregard the prosecutor's impassioned miscon­ duct, or that the jurors who so promptly acquitted the men charged with the murder of Mrs. Wiggin and the flogging and kidnapping of strikers did not reflect the prejudices of the com­ munity against Communists and labor agitators calls for a nai'veti beyond the capacity of ordinary minds. Whether the defendants in any of these cases were guilty may be the subject of debate; but that they were tried by jurors free from conscious or unconscious bias can be contended only by those who have unlimited faith in human nature and have had no experience in the conduct of trials.21 In the case of Chambers v. Florida/2 the defendants, Negroes, had been convicted of murder in the first degree. An examination of the record of the trial by the Supreme Court of Florida dis­ closed no error in the proceedings. The court, however, on sug­ gestion that the convictions had been based on coerced confes­ sions, gave defendants leave to present the question to the trial court and later ordered the trial court to have this issue tried by a jury. The jury found against the defendants. The Florida Su­ preme Court on appeal held that the trial court had properly submitted the question whether the confessions had been ob­ tained by force or by fear of personal violence or by duress but had failed to submit the issue whether they had been in fact freely and voluntarily given. It therefore sent the case back for another trial. The defendants then secured a change of the place of trial to another county. The trial judge properly submitted all issues concerning the confessions to a jury of that county, which also found against the defendants on all issues. The majority of the Supreme Court of Florida affirmed the trial court. The Su­ preme Court of the United States ruled that because of the con­ ceded prolonged questioning of the defendants which resulted in

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THE LEGACY OF SACCO AND VANZETTI

the confessions, they were as a matter of law not freely and vol­ untarily made. It reversed the conviction. In a later Florida re­ port 23 it appeared that Chambers was confined in a state hospital and the other defendants were held for trial under a new indict­ ment. From the history of this case it is apparent that these de­ fendants will in all probability never secure an acquittal by a jury. Whether they are guilty or not remains in the realm of conjecture. That they have had the advantage of every procedural device for their protection is certain. But it seems just as certain that they will never be able to secure a totally unprejudiced jury. In April, 1931, in Scottsboro, Alabama, nine Negroes were tried under an indictment charging them with raping two white girls in an open gondola car which was moving as part of a long freight train. Haywood Patterson and Roy Wright each had a separate trial; Weems and Norris were tried together; and the remaining five had a single trial. The trial of Weems and Norris took less than two days, Patterson's half a day, that of the five half a day, Wright's a few hours. All were concluded within a week, and eight of the defendants were found guilty. Ir» the case of Roy Wright, who was only thirteen years of age, there was a mistrial because eleven jurors voted for the death penalty and one held out for life imprisonment. There was ample evidence to sustain the verdicts, for a number of the accused testified against the others; and the girls were positive in their assertions on the stand. Though there were many inconsistencies and im­ probabilities in the testimony, it was clearly within the proper function of the jury to resolve the conflicts against the defendants. The record made it clear, however, that the defendants had in fact been without substantial aid by counsel and that they had been represented by counsel only nominally.24 For this reason the Supreme Court of the United States held that the defendants had not been given the benefit of due process of law and reversed the judgments of conviction, which had been affirmed by the Supreme Court of Alabama with Chief Justice Anderson dissenting. Haywood Patterson's case was first called at the series of second trials. The defendants had secured a change of place of trial from Scottsboro to Decatur. They were represented by able counsel, Jewish lawyers from New York City. In Patterson's case counsel attacked the indictment on the ground that the grand jury had been improperly chosen in that Negroes had been systematically excluded from grand-jury service. The testimony for the state

THE LEGACY OF DOUBT

195

was much weaker than that at the first trial; the testimony for the defense much stronger. One of the girls swore that the whole story of the rape was a fiction. But Patterson was convicted. On the motion for a new trial Judge Horton, without hearing argu­ ment, set aside the verdict as being against the weight of the evidence and based on the incredible testimony of the alleged victim who still stood by the substance of her original story. At the third trial of Patterson before another judge and jury, he was again convicted. This conviction was set aside by the United States Supreme Court because of the systematic exclusion of Negroes from grand-jury service.26 Other judgments of conviction were likewise nullified. Thereafter the prosecutor caused the dis­ missal of five of the defendants by refusal to prosecute.26 The other four were again convicted. One was sentenced to death, but this was commuted to life imprisonment by the Governor; one was sentenced to imprisonment for ninety-nine years, and two to imprisonment for seventy-five years.27 These last trials took place in June and July of 1937· Six years' lapse of time did not serve to soften the predilections of the jurors sufficiently to induce them to evaluate the evidence as Judge Horton had done. Five of the defendants were saved by the action of the prosecutor; the severity of the sentences imposed by the jury was mitigated by the Governor and the State Board of Par­ dons and Paroles. In Polk county, Texas, on the night of August 10, 1937, Mrs. W. S. Cochran was raped after a severe struggle with her assailant. The defendant, White, was charged with the crime and found guilty and sentenced to death. On appeal to the Texas Court of Criminal Appeals, he claimed that the prosecutor in his closing address had said: "Look at this courtroom; it is crowded with Polk County people demanding the death penalty for Bob White." The trial judge had refused to sign a bill of exceptions certifying that such a statement had been made, but he had de­ layed his action until it was too late for the defendant to get the matter otherwise embodied in the record.28 For this reason the Court reversed the conviction. It said that even without this alleged statement, the prosecutor's address was so prejudicial as to require reversal, quoting from a former opinion to the effect that in a case like this, "it requires but a trivial matter indeed to prejudice the case of the accused." 28 At the second trial White was convicted and again sentenced to death. This conviction was

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THE LEGACY OF SACCO AND VANZETTI

affirmed by the Texas Court30 but reversed by the Supreme Court of the United States31 because an improperly induced confession had been received in evidence against him. While the jury was being drawn for the third trial, W. S. Cochran shot and killed White in the courtroom. He immediately surrendered and was promptly released on giving bond in the sum of $500. On his trial for the murder of White he was promptly acquitted.32 Whether White was guilty it is impossible to say. That he had never had what our courts call a fair trial is certain. That Cochran was guilty of the grossest contempt of court and of premeditated murder in cold blood is unquestioned and unquestionable. Yet two juries found White guilty and another jury declared Cochran not guilty.83 These few cases are but illustrations of what every experienced judge and every experienced lawyer know. It is almost impossible to secure a verdict which runs counter to the settled convictions of the community. At times the jury is made peculiarly aware of the local feeling by demonstrations within or without the court­ room. At other times no objective manifestations of prejudice appear, but the jurors share the sentiments of their fellow citi­ zens. To suggest that the remedy is the abolition of trial by jury would be fatuous. But at least a palliative may be available. The accused should be given the privilege of electing trial by a judge, or provision might be made allowing him to have a trial by a court consisting of three judges. It is generally held that the privi­ lege of trial by jury is in essence a personal privilege; and that the accused may in proper circumstances waive the privilege. CONCLUSIONS

The cases just discussed raise the usual doubts as to the degree of perfection one may expect in the operation of human institu­ tions. Both individuals and communities are always, to some ex­ tent, swayed by the passions inherent in contest. Admittedly, the understanding of these feelings lies within the province of the social historian and the student of social psychology. But that is not to say that lawyers, judges, legislators, and other citizens who are jealous of the good name of justice should blind themselves to their opportunity for making specific improvements in our criminal procedure. The Sacco-Vanzetti case continues to be of vital legal signifi-

THE LEGACY OF DOUBT

197

cance because it is among the most important of those litigations which have left us with unresolved doubts. This is its legacy to the law: it has revealed defects in our system of administering criminal justice, defects inherent in trial by jury and in the over­ emphasis upon the adversary features of our processes of litiga­ tion. We cannot hope that men accused of crime will be assured of a fair trial unless by legislative enactment, rules of court, or judicial decision provision is made for (a) a full disclosure to defendant under proper safeguards of the prosecution's case in advance of trial,34 (b) fairness in presentation of the prosecution's case without appeal to passion or prejudice, (c) fair and impartial expert assistance to the trier of fact upon issues that depend upon peculiar skill in observation or in the process of drawing infer­ ences from relevant data, and (d) a privilege of the accused to waive trial by jury and to be tried by a judge or body of judges in cases where local feeling and prejudice make it difficult to secure a jury free from conscious or unconscious bias. Of course, neither these suggested safeguards nor any others can make the operations of judges and lawyers perfect. They would, however, greatly decrease the chances of miscarriage of justice. With this review of the legal controversy before us, we are now ready to examine the manner in which our social order rendered its informal but none the less revealing verdict upon Sacco and Vanzetti.

PART II THE LEGACY TO THE PEOPLE: CONFLICT

Chapter VII

"MEN OF NORFOLK" 1 WHEN SACCO and Vanzetti entered the Dedham courtroom on

May 31, 1921, the community in which they were to be tried must already have had at hand a good deal of fact and opinion about the defendants. They had been in jail or prison for more than a year. Vanzetti was a convicted felon. Gossip, particularly in the newspapers, had made its contribution. For good or for ill, much was known about them before the opening of formal proceedings. To begin with, everyone knew that the men were foreigners and Italians. It was probably assumed—correctly—that they were aliens who had made no attempt to become American citizens. Seven months previously, questions had been asked in the Italian Chamber of Deputies about the prosecution of Sacco and Vanzetti, and this fact was reported in the American press.1 In Janu­ ary, 1921, an article entitled "The War on the Alien in New England" appeared in the I.W.W. monthly.2 This journal cer­ tainly did not circulate freely among the Yankees of Norfolk county, but they may very well have run across the letters of the new "Sacco-Vanzetti Defense Committee" in which funds were asked to fight the "attack on the foreign-born worker." Finally, to drive the point home, there appeared on the first day of the taking of testimony, a New Republic essay under the heading, "Foreigners." 3 The community also knew that Sacco and Vanzetti were work­ ing men, but it is likely that a distinction was drawn between the two. Sacco was a dependable and highly skilled craftsman, liked and trusted by his employer. There may, of course, have been some jealous feeling against this successful alien who sometimes earned as much as $80.00 in a single week. Vanzetti, on the other hand, had held a variety of lowly jobs, had learned no trade, and made no real money; at best he was probably thought of as a good-natured but shiftless Dago. But this was not the whole story about the defendants, as every201

202

THE LEGACY OF SACCO AND VANZETTI

one was aware. Sacco and Vanzetti had proved themselves un­ willing to rest content with the privileges and wages offered by an American community to alien workers. The men were labor agitators. In 1913 Sacco had assisted actively in a strike at Hopedale. The organizer of that strike characterized him as "one of the silent, active, sincere workers, giving of his time and money to his fellowmen," winning "full confidence in his honesty and intelligence." 4 Vanzetti was a completely unassimilable irritant. In 1916 the employees of the Plymouth cordage works, largest fac­ tory of its kind in the world, went out on strike. Men were get­ ting $9.00 a week; women received $6.00. The demand was for increases to $12.00 and $8.00 in the basic pay. After a bitter and harsh struggle a general increase of $1.00 was settled upon, hardly a major triumph for the workers.6 The failure of the strike was partly due to disagreement within the ranks of the strikers. The A. F. of L. could get nowhere with the hysterical, visionary "prole­ tariat," and the I.W.W. had no better luck; their organizers ran into opposition from the anarchism of which Vanzetti was a spokesman.6 Consequently, once the strike was settled, Vanzetti was not re-employed at the cordage plant. During the next four years he worked as a common laborer or peddled fish; he could not have been greatly feared by the solid people because he was "illiterate·" and excitable, but it would be a fair guess that his reputation was that of a damned fool who could cause a peck of mischief. The most widely known of all facts about the defendants— generally comprehended and discussed—was their radicalism. De­ fense Committee literature was signed by one Lopez; in January, 1921, Lopez was ordered deported as an undesirable radical alien. During the trial the jury were free to read newspapers (from which items relating to the case were properly cut out). But, four days before the verdict, the New York Times carried a story under the headline, "Prosecutor of I.W.W. in Kansas Is Killed." 7 And there in the courtroom stood Sacco's lawyer, Fred Moore, re­ doubtable and notorious defense counsel in numerous I.W.W. cases! The New Republic regretted the prevalence of the view that "Aliens were presumably 'Reds' and 'Reds' were outside the pale of the law. Witnesses and court officials of Cape Cod were presumably not immune from this mob psychology." 8 Further­ more, lamentable as this superstition may have been, it paralleled the facts in this situation. The men were Reds; and Vanzetti, at

"men of Norfolk' 203 least, had for several years been proud and open in stating his views. A number of other biographical facts may have been more or less widely known to the community. Perhaps there was talk of their atheism and the fact that they were renegades from their church—although it is not clear what a preponderantly Protestant culture would feel about defection from Roman Catholicism. Sacco may have been helped to some extent by the fact that he was a proper married man, a father, and an enthusiastic cultivator of a neat little garden. Alien, craftsman, agitator, and Red—Sacco. Alien, shiftless la­ borer or peddler, agitator, and Red—Vanzetti. These reputations must have been known to the thousands of Norfolk citizens, the hundreds of the jury panel, and the twelve men chosen to deter­ mine the guilt or innocence of the accused. Now the problem with which we are here engaged is this: To what degree did this knowl­ edge of the men influence the judgment of the jury? Apart from what we might like to believe, is there any proof of deep-seated class aversion having played a part in the finding of a verdict of guilty of murder in the first degree? 2 If an answer is sought in the form of specific evidence, there is the affidavit against jury-foreman Ripley who is said to have used the expression, "Damn them, they ought to hang them any­ way." Neither Judge Thayer's failure to comment on these words nor the pompous sophistries of the Supreme Judicial Court and the Advisory Committee clear Ripley; he stands undefended against the charge of being malicious and unfit to judge another human being. Nevertheless, it is extremely important to remem­ ber that only one juror is discredited. We have no right without further proof to assume that any other individual among his eleven fellow jurors was a hateful man given to vulgar and profane prejudgment. Sacco and Vanzetti may well have been found guilty by eleven men as good, true, and decent as could be found in Norfolk county. When one turns to an examination of the circumstantial evi­ dence, the situation is appallingly different. There is a vast quan­ tity and variety of proof to the effect that nowhere in America, and nowhere in Massachusetts, could any jury have been assem-

204

THE LEGACY OF SACCO AND VANZETO

bled by any ordinary means whose majority would have been free from superstitious fears, irrational hatred, and incapacitating prejudices. Here is the heart of the whole jury problem. Charges against the Sacco-Vanzetti jury are unprovable; but the incompe­ tence of any jury, confronted with an issue of the sort tried at Dedham in 1921, can be proved up to the hilt. The case of Sacco and Vanzetti against "the jury system" rests, in the first place, upon the reasonable presumption that the opinions and habits of thought which prevail in society at large will have about the same force in any representative selection from the larger group. The thinking of Massachusetts on the crime at Pearl Harbor was like that of America as a whole, and seven or eight hundred Massachusetts men—call them a jury list if you will—could speak for their State. And no doubt twelve men, previously qualified as to average intelligence and sanity, would hold the same general opinions about the Japanese attack. This presumption is fundamentally unassailable; it is the essence of our jury system and makes us all more or less willing to submit to the judgment of our fellows when we stand accused. The "law" of the plaintiffs, as they present it before the court of historical judgment, is simple but sound. On the whole, this is a fairly effective principle. When a jury assesses damages against a man who has through carelessness burned down his neighbor's house, the verdict probably approxi­ mates the opinion which most men would hold on the significance of that accident. Once in a while there will be a man on the jury who long ago has had his house burned down—shall we say his name is Ripley?—but after all he is in a minority. But suppose that the entire nation stands fear-struck before the threat of epidemic disease; and suppose that although the de­ fendant in court is charged with nothing more than carelessness, it is generally known that in another place he has cultivated a horrible virus which may bring death to thousands. In all honesty, what chance has he before a jury of a million, a thousand, or twelve? There, in all its grim simplicity, lies the substance of the charge against the jury system as it operated in the Sacco-Vanzetti case. The defendants were tried before a jury drawn from a com­ munity and a people whose social mind was unfit to deal with any issue involving its hysterical passions. As far as the jury is concerned, it was inevitable that the qual-

"MEN OF NORFOLK"

205

ity of the verdict should be tainted. A sick society makes sick decisions. 3

So much for assertion. The proof may be found in the general attitudes of American society toward labor, toward atheism, to­ ward slackers, and toward foreigners and radicals. It will also be necessary to consider aspects of the social order which are par­ ticularly New England by nature, and some which relate only to the specific instrument known as a jury. And we must not fail to examine some unfavorable allegations which do not stand up under scrutiny. Before turning to the main question of social bias, it will be helpful to look into the charge that the Sacco-Vanzetti jury was a particularly unfit instrument. In effect, the view is widely held that the men called for jury service did not properly represent the community; proof is said to lie in the fact that it was necessary to examine 653 men in order to complete the panel. This is not a strong argument: a stupidly tedious procedure has marked the selection of many American juries. Judge Gary, in the 1887 Haymarket case, took twenty-one days to process 981 talesmen; in the Snyder-Gray murder case—where there was no apparent element of social conflict—400 were examined, and the first juror selected was the eighty-sixth candidate. There was, however, a real defect in the Sacco-Vanzetti jury list. The names of 153 talesmen have been preserved in the record, and it is interesting to note that there are few "foreign" names and not one which appears to be "Italian." 9 Of course this may simply indicate nothing more than the failure of any Italian to rise high enough in communal dig­ nity to warrant his being called for service. It is also urged that the jury, as finally selected, was completely middle-class in nature, or made up of thick-headed rustics. Even if one adopts the classification system of the communist critique, this particular jury was not hopelessly bad. Five men were "petit bourgeois," and one was an ex-policeman. A photographer is a little difficult to classify. But there was a farmer, and no less than four genuine members of the industrial proletariat—i.e., workers. Apparently, as juries go, the trial got off to a fair start. As one approaches the larger question of the nature of public opinion or prejudice, and its effect upon this trial, the historian is relieved to find that he need not draw fine distinctions or ad-

2Θ6

THE LEGACY OF SACCO AND VANZETTI

vance subtle arguments. The events of the day and public com­ ment upon those happenings yield a heavily accented picture. There are strong views, or a total lack of comment, upon each of the elements in Sacco and Vanzetti which were potential irritants to their community. There is surprisingly little dubious middle ground. America in 1921 was not hostile to labor. This attitude was largely the result of the fact that labor was momentarily too timid to offend anyone; and the major movement toward industrial unionism was not yet under way. But even if one admits that there was no special virtue in this interlude of peace, it is a psy­ chological fact that Sacco and Vanzetti were not disliked because they worked with their hands. As early as 1887, the Knights of Labor had been at work organizing the shoe factories in Brockton. Unfortunately, the vanguard of the labor movement was an­ other matter; the leaders whose job it was to stir the great mass of their fellows to demands for further advantages were opposed by skilled adversaries who knew only too well how to develop implications profoundly disturbing to a peace-loving society. Someone in America knew that Carlo Tresca, a revolutionary anarchist, was instrumental in engaging Fred Moore as Sacco's counsel.10 Did the man who knew that fact sit on the jury? The Workers Defense Conference of New England and the Workers Defense Union of New York were raising funds for the accused.11 Who knew that? Free Voice, a leftist labor organ printed, in De­ cember, 1920, a review of the case, "Another Frame-up Exposed"; in the next month there appeared the widely circulated pamphlet, Are They Doomed?12 Were those writings read in Norfolk county? Did a juryman see them, or hear of them? Did anyone know that Fred Biedenkapp, a marked Red, had addressed a mass meeting in support of Sacco and Vanzetti on February 1 in the far western city of Detroit? To a radical member of the jury, these facts would have been pleasant proofs of working-class solidarity; to a juryman of disciplined intellectual processes they would have been irrelevant; to a worried, suspicious, and badly informed man—to a typical American of that day—they would have been cause for great uneasiness. There is no certain proof, but the principles of circumstantial evidence allow social historians, as well as jurors, to marshal facts under the guidance of the law of probability. A curiously indifferent public attitude appears to have pre-

"MEN OF NORFOLK"

207

vailed upon questions of religious nonconformity. One may lay it to the lingering influence of Brann and Ingersoll, or to sheer apathy, but there is extraordinarily little comment in the public press upon atheists or their fellow travelers. If it was known that the defendants were hostile to "the opiate of the people," it is not likely that it stirred the feelings of the community. However, the door opens wide to a continuous blast of ill-will when one examines the position of the stranger within the gates. All cultures have been consistently uncharitable to the foreigner, and New England has certainly afforded one of the most per­ sistent manifestations of this undiscriminating hatred. It is a commonplace of historical writing to paint the hundred years' war between the entrenched Boston oligarchy and the rough Irish boys who have so largely taken over. And in a dozen other ways the same pleasure in hatred is constantly manifested. The true Beacon Hill intellectual barely tolerates the intelligentsia of New York or Chicago. Boston housewives tell malicious stories about the Canucks and the Prince Edward Islanders. The Irish mug the Jewish school children and wreck the synagogues of Roxbury. The ancient art of kicking the underdog is well understood in the New England metropolitan area. In 1917 this malignant practice was at its height because of the war; the Germans were at hand; the preposterous suspicions and accusations of that time were such that within ten years they led to an article, "Notes for a Comic History." 13 Comic, yes; but persistent, bitter, and terribly dangerous to the chosen victim. Nor did Boston stand alone in its guilty cruelty. In Wisconsin the district attorney "brought into his office six foreigners, while under arrest, examined them under oath in what looked like and they took to be a judicial proceeding, and then sought to use the admissions so extorted as evidence against them." In New York "the district attorney urged on the jury that the name of the accused meant 'bastard' and that he was an alien and within draft age." " It is of some significance that the Wisconsin case is known as Bianchi v. State, and the one in New York as People v. Esposito; our interest is in Commonwealth v. Sacco and Commonwealth v. Vanzetti. As a corollary to the ill-will against aliens one must consider the animosity toward noncombatants which certainly persisted into the twenties. The United States government published its

2Θ8

THE LEGACY OF SACCO AND VANZETTI

ill-advised "slacker lists." By chance or choice many who did not fight were aliens. Here, at the Dedham trial, one meets the florid patriotic utterances of the presiding judge and the district attor­ ney. When it was revealed that Sacco and Vanzetti had run away to Mexico, it did them no good. Furthermore, as Upton Sinclair has indicated, in his novel, Boston, the setting of the trial in point of time was most unfortunate. On May a 9, throughout the Boston area, numerous public squares were dedicated to dead heroes. May 30 was Memorial Day. The trial opened on May 31. The first week of June was the anniversary of the battle of Belleau Wood, and Vanzetti first took the witness stand on the day following July 4. The patriotic temper of the community stood in direct opposition to the personal history and the philosophy of the de­ fendants. America, and the people of Norfolk county, did not look with favor upon agitators, foreigners, and slackers. Sacco and Vanzetti were these things. They were also something much worseradicals. 4

The prevailing attitude in this country toward radicals, during the past sixty years, has been consistently shameful, and unworthy of the intelligence which has been brought to bear upon other problems in community life. The essential failure in our way of thinking has been a readiness to place all critics of the social order in one category, and then to malign the whole group, attributing to it the characteristics appropriate only to a minority of dis­ orderly and violent men. We never seem to learn. In commenting on the fate of those who were executed for the Haymarket Affair in 1887, William Dean Howells wrote: "The historical perspec­ tive is that this free Republic has killed five men for their opinions." 15 In 1920 five duly elected members of the New York Legislature were unseated because they were socialists. In more recent years the House Committee on Un-American Activities has slandered a hundred honorable men for every enemy to so­ ciety it has turned up. The causes of this unhealthy hatred, and any suggestion for its cure, lie outside of this inquiry. For an understanding of the fate of Sacco and Vanzetti it is necessary only to show the prevalence of the unworthy passion and to indicate how it must have colored

"MEN OF NORFOLK"

20g

both the emotional and rational texture of community life in Norfolk county. The pattern of fear and hatred was set in 1887. The Haymarket Affair arose through the throwing of a bomb which cost the lives of several persons; the occasion was a meeting in support of the eight-hour day. Someone, of course, was guilty; and, if we are to have law, the guilty person should have been rooted out and punished. But the prosecution never attempted to name the bomb-thrower; it was content to gather together a group of eight men and to charge them with a "general conspiracy" to overthrow the social order. The defendants were only loosely connected to the actual crime. But for that time, in the light of the mood of the people, the case was strong enough. The record of the pro­ ceedings is an abomination before the face of justice; so bad, in fact, that Governor Altgeld was later impelled deliberately to sacrifice his political future by stating that ". . . the judge con­ ducted the trial with malicious ferocity." 16 There were grave, impassioned, or learned speeches by several of the accused; they saved no one. The case was beyond remedy; guilt or innocence was of no consequence; blood was wanted and got. On November 11, 1887, all was over, except, in Howells' words, for "the judg­ ment that begins at once for every unjust and evil deed, and goes on forever." 17 Almost immediately, national legislation was undertaken to protect the United States against individuals professing political beliefs involving the advocacy of violence.18 The law of 1903 called for the deportation of alien anarchists of this type. It was a fair law even though it lacked all the desirable elements of clarity and realism. The same cannot be said for the additional legislation of 1917 and 1918; there fell within its reach all who professed philosophic or pacific anarchism; in other words, it was possible to expel any alien preaching doctrines akin to those of most of the great founders of religions—or those of Tolstoy or Gandhi. The law was bad; its execution was inhuman. Under the stress of warfare, Congress in 1918 also passed the Espionage Act. Only one prosecution was completed under this law prior to the armistice of November 11. The defendants had protested the undeclared war which the United States was wag­ ing against the new government of Russia; a conviction was ob­ tained and affirmed in the face of a brilliant dissent by Justices

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Holmes and Brandeis.19 Sentences of fifteen to twenty years were imposed. One month later, in December, a conviction under this same act was obtained against Victor M. Berger, and another twentyyear sentence was imposed. But this time the appeal freed the defendant from the penalty imposed by Judge Kenesaw Mountain Landis, in later years "Czar" of organized baseball. Berger's fate shows the length to which the patriotic fervor of the people and their representatives could go. He had been elected to Congress in 1918 and had taken his place in the House. After his successful appeal, when he stood free from taint—an innocent man, his seat was declared vacant by his fellow legislators. He appealed to his electorate and was returned by a majority 8,000 votes greater than at his first election. Nevertheless, on January 10, 1920, he was again refused his seat.20 Very shortly we shall see that the con­ gressional aversion to Berger has a direct bearing on the execu­ tion of Sacco and Vanzetti. Was all this mere witch-hunting? Or was there a clear and pres­ ent danger? Apparently there was ground for fear. On April 30, 1919, a bomb was received in the home of Senator Hardwick, recently chairman of the Senate committee on immigration; the package was opened by a servant who was seriously injured. An immediate survey of post offices discovered more than two dozen similar bombs. On June 3 thirteen bombs were exploded in seven American cities. This was bad business and an army of detec­ tives swept into action, spurred on by a popular clamor for the heads of the guilty radicals and communists. But, as is often the case when mob spirit rules, the wrong results were obtained: lines of resistance to Berger were drawn tighter, and the ground was prepared for hatred of Sacco and Vanzetti—all of which was rather irrelevant; the matter at hand—solution of thirty-eight attempted or accomplished criminal acts of violence—did not yield a single indictment.21 The Attorney General of the United States in 1919 was A. Mitchell Palmer. He had a problem on his hands: in the first place, one of the bombs had exploded before his home; second, he was the chief law officer of a government being overtly threat­ ened. It was Palmer's duty to do something and he should be commended for taking action. His solution was to use the author­ ity of the Department of Justice illegally, brutally, and viciously; within a year he had largely succeeded in destroying the reputa-

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tion of the Federal authority for elementary decency or justice. Here are the words, spoken in 1920, by a man who was to become one of the most distinguished Chief Justices of the United States: . . . we cannot afford to ignore the indications that, perhaps to an extent unparalleled in our history, the essentials of liberty are being disregarded. Very recently information has been laid by responsible citizens at the bar of public opinion of violations of personal rights which savor of the worst practices of tyranny. What was this information laid at the bar of public opinion to which Charles Evans Hughes refers? It will be found in the Report upon the Illegal Practices of the United States Depart­ ment of Justice, published in May, 1920, and reviewing the events of the preceding six months.22 Its integrity may be judged by the names of its signers. They were: R. G. Brown, of Memphis. Zechariah Chaffee, Jr., of Cambridge. Felix Frankfurter, of Cambridge. Ernst Freund, of Chicago. Swinburne Hale, of New York. Francis Fisher Kane, of Philadelphia. Alfred S. Niles, of Baltimore. Roscoe Pound, of Cambridge. Jackson H. Ralston, of Washington. David Wallerstein, of Philadelphia. Frank P. Walsh, of New York. Tyrrell Williams, of St. Louis. They opened their report in this fashion: TO THE AMERICAN PEOPLE:

For more than six months we, the undersigned lawyers, whose sworn duty it is to uphold the Constitution and Laws of the United States, have seen with growing apprehension the continued violation of that Constitution and breaking of those Laws by the Department of Justice of the United States government. Under the guise of a campaign for the suppression of radical activi­ ties, the office of the Attorney General, acting by its local agents throughout the country, and giving express instructions from Wash­ ington, has committed continual illegal acts. Wholesale arrests both of aliens and citizens have been made without warrant or any process of law; men and women have been jailed and held incommunicado without access of friends or counsel; homes have been entered without search-warrant and property seized and removed; other property has

812

THE LEGACY OF SACCO AND VANZETTI

been wantonly destroyed; workingmen and workingwomen suspected of radical views have been shamefully abused and maltreated. Agents of the Department of Justice have been introduced into radical organi­ zations for the purpose of informing upon their members or inciting them to activities; these agents have even been instructed from Wash­ ington to arrange meetings upon certain dates for the express object of facilitating wholesale raids and arrests. In support of these illegal acts, and to create sentiment in its favor, the Department of Justice has also constituted itself a propaganda bureau, and has sent to news­ papers and magazines of this country quantities of material designed to excite public opinion against radicals, all at the expense of the government and outside the scope of the Attorney General's duties.23 It will be recalled that at the time of their arrest Sacco and Vanzetti were armed; it soon became apparent that, foolish ex­ cuses aside, they bore weapons because they were naively deter­ mined to resist arrest by agents of the Department of Justice. Was their fear justified? Read further, in the Report upon the Illegal Practices . . . : [The affidavit of Semeon Nakhwat.] In the thirteenth week of my confinement Edward J. Hickey [a special agent of the Department of Justice] came into my cell and asked me to give him the address of a man called Boyko in Greenpoint, Brooklyn. I did not know this man and told Hickey that I did not. Hickey thereupon struck me twice with his fist, once in the fore­ head and once in the jaw, whereupon I fell. He then kicked me and I became unconscious. . . . In the last part of January or early in February my finger was severely infected. I asked the guards to let me have a doctor to treat my finger. They refused, and I asked again, whereupon they said to come with them. They took me to a room in the basement of the jail with a cement floor, cement walls and an iron door. The room was pitch dark, and the only means for lighting or ventilating it that I could see was a small hole in the door. The floor of this room was hot and the walls were very warm to the touch. [It was a punishment cell located over the pumproom of the boiler.] I stayed in this room for thirty-six hours, from 8:30 one morning to 8:30 the following eve­ ning. . . . The evening of the first day I was given one glass of water and one slice of bread, and the morning of the second day I was given the same. I received no other food or water during the thirty-six hours. . . . During the whole period I had only one interview with a friend. . . . . . . The only other times I was out of my cell were for two or three minutes each day when I was allowed to wash my face at a sink, and

"MEN OF NORFOLK"

213

five minutes once a month when I was allowed to take a bath in a tub. No books or newspapers were allowed me during the five months, although I asked for them. During the five months' confinement I was kept alone in a small cell with no pne to talk to.24 Well, an affidavit is after all only the assertion of one man, and Nakhwat's charges are denied in sworn statements by those whom he accuses. But there were very many testimonials to similar bru­ tality, and counter-affidavits will not dispose of the summary con­ clusions arrived at by the eminent authors of the report: Great numbers of persons . . . have been threatened, beaten with blackjacks, struck with fists, jailed under abominable conditions, or actually tortured. [Agents] . . . "beat up" the persons in the place, amounting to several hundred, with blackjacks and stair rails; broke up all the classes then in session and herded the students to the stairways, beat­ ing them as they went, shoving them from the landing on to the stair­ way so that many fell and rolled down the stairs and were trampled upon by those who were shoved after them. . . . eight hundred men were imprisoned for from three to six days in a dark, windowless, narrow corridor . . . they slept on the bare stone at night. . . . They were compelled to stand in long lines for access to the solitary drinking fountain and the one toilet; they were denied all food for twenty hours . . . and they were refused all communication with relatives or attorneys.25 The information presented up to this point relates largely to the unfortunates brought in by the raids of November 7, 1919. There was more and worse to come; Palmer and his agents were not as yet being condemned by responsible and authoritative voices. The Attorney General's concept of his authority was wide enough to cover any act: "Each and every adherent of this [radi­ cal] movement is a potential murderer or a potential thief, and deserves no consideration." 28 The greatest of all "Red Raids" took place on January 2, 1920. In thirty-three cities 2,500 radical suspects were arrested; some stage-property guns and four usable pistols were seized. In New England the arrests took place in Boston, Chelsea, Brockton, Bridgewater, Norwood, Worcester, Springfield, Chicopee Falls, Gardiner, Holyoke, Fitchburg, Lowell, Lawrence, Haverhill, Nashua, Manchester, Derry, Portsmouth, Claremont, and Lin­ coln. The story is told with clarity and detail in The Deportations

214

THE

LEGACY OF SACCO AND VANZETTI

Delirium of Nineteen-twenty, by Louis F. Post, who was then, and had been for seven years, Assistant Secretary of Labor.27 One learns that "the Department of Justice marched their prisoners through the streets of Boston to the immigration station in chains." Bail of $10,000 was asked for the unfortunate victims, although $500 was the usual figure in such cases. For one prisoner, when high bail was refused, a criminal indictment was obtained and bail fixed at $5,000; three grand juries subsequently failed to indict this man. In asking for warrants the Department made a joke of the requirement that they show "probable cause." War­ rants, when obtained, were delivered after arrest in bundles of telegrams. The illness of the Secretary of Labor, under whose jurisdiction deportation proceedings fell, led to an eventual showdown. The acting-Secretaryship fell to Louis F. Post, and in this relatively inconspicuous public servant Palmer found a skillful adversary with a courageous sense of justice. Post did what he could to apply a stupid law justly; he saved as many innocent persons as he could from the terrorist dragnet which Palmer had flung about so indiscriminately. The figures tell the story. Palmer had warned of 60,000 dangerous radicals. 6,000 warrants were issued; 4,000 persons were arrested; 3,000 warrants were canceled; 1,000 per­ sons were ordered deported (500 of these by Post).28 One of the radicals arrested in February or March of 1920, should be named. Post states that "from the hour of his arrest to the moment of his death, Salsedo was in the custody, all unknown to the Department of Labor, of Department of Justice Detec­ tives." 29 Salsedo's name is not new to this history; Vanzetti went to New York in late April to inquire about him; Salsedo jumped or fell to his death while under detention on May 3; Vanzetti, with his gun, was arrested on May 5. How long could this go on? Protests of one sort or another were beginning to be heard. In an editorial of January 8, ig20, Wil­ liam Allen White spoke out: The attorney general seems to be seeing red. He is rounding up every manner of radical in the country—every man who hopes for a better world is in danger of deportation by the attorney general. The whole business is un-American.30 Informal warning must have come to Palmer of the fact that the Federal bench would entertain the view expressed in June by

"MEN OF NORFOLK"

215

Judge Anderson: "A mob is a mob, whether made up of Govern­ ment officials acting under instructions from the Department of Justice, or of criminals and loafers and the vicious classes." 81 Palmer attempted to justify his actions by publishing Red Radicalism as Described by Its Own Leaders.32 This pamphlet contains manifestoes of the Third International, the Communist Party of America, and the Federation of Russian Workers of the United States and Canada. Due emphasis is given to such phrases as "armed insurrection" and "forcible seizure." This material was of course pertinent to the deportation of revolutionary radicals; it had nothing to do with the fact that red-hunting instructions were sent out by the Department of Justice on December 27, 1919, a month before membership in the Communist Party was de­ clared lawful ground for deportation. The Attorney General's educational document did not make reparation to thousands of completely innocent men and women who had become victims of the chief lawbreaker in the United States. Enough evidence has been presented to make clear how the authors of the Report upon the Illegal Practices . . . could arrive at their considered verdict: American institutions have not in fact been protected by the Attorney General's ruthless suppression. On the contrary those institutions have been seriously undermined, and revolutionary unrest has been vastly intensified. No organizations of radicals acting through propaganda over the last six months could have created as much revolutionary sentiment in America as has been created by the acts of the Depart­ ment of Justice itself.33 Sacco and Vanzetti were jailed on May 5, 1920, shortly before the end of the period of active arrests. Was the atmosphere any less prejudicial to radicals during the year which passed before their trial in June and July of 1921? In Washington there was improvement; a Congressional committee held hearings on the Report upon the Illegal Practices . . . and Palmer's actions be­ came a matter of public record. The impeachment proceedings against Louis F. Post failed lugubriously before another com­ mittee. Lesser political figures, however, continued to harass all radicals and they seem to have carried with them a great prepon­ derance of public sentiment. John F. Moors, eminently conserva­ tive Bostonian and member of the Harvard Corporation, looking back upon 1921, wrote:

2L6

THE LEGACY OF SACCO AND VANZETTI

. . . the hysteria against "the reds" was so great, at the time when these men were convicted, that even the most substantial bankers in this city were carried away to the extent of paying for full-page adver­ tisements about the red peril.34 The Lusk committee report on the socialist members of the New York Assembly was given to the public in July of 1921, and even the dim-wits knew that a "socialist" was a much less dangerous radical than an "anarchist." It would be hard to imagine a more unfortunate coincidence than the indictment of Vanzetti for murder on September n, 1920, and the Wall Street explosion of September 16. Thirty-three persons were killed. No evidence of any substance was ever made public, although the most common guess was that the slaughter was caused by a load of blasting dynamite which was being ille­ gally transported. Strangest of all the hysterical manifestations was the series of articles under the general title, "Enemies of the Republic," which appeared in the Delineator in May, June, and July, 1921, almost exactly embracing the period of the Dedham trial.35 The author is Calvin Coolidge, at that time Vice-President of the United States. Their substance is orthodox red-baiting, but the quality of their logical process is something quite out of the ordinary. The Delineator, it will be observed, is a woman's magazine with a fairly extensive circulation among respectable middle-class people. Coolidge addresses himself to such a reading audience. He begins by observing that the American Constitution gives the people the power to change the form of its government: But such action, because it is peaceful, because its method has the sanction of law, may be none the less radical, none the less revolu­ tionary, and none the less destructive of every right that for three hundred years. . . .36 The implications of such a statement are interesting. "Radical," "revolutionary," and "destructive" are apparently more or less synonymous; Washington, Jefferson, and Samuel Adams might wonder at these words. Furthermore, Madison and the other authors of the Constitution might be hurt to learn that their work was chiefly legalistic and did not adequately protect the funda­ mental rights of the nation. We are also told that:

"MEN OF NORFOLK"

217

It has . . . become more important than ever that the ready-made opinions that are to pass current should be correct. . . . They should reflect respect, not disloyalty, toward our institutions.37 "Correct" opinions. The term has grown familiar to Americans as, over the course of the years, they have read the warnings issued by the heads of totalitarian states. In fact, the Coolidge statement is a classic injunction to "follow the party line." The equation between foreigners and radicals can, in the mind of the Vice-President, be established by the simple device of list­ ing names; in speaking of the Rand School faculty he says: . . . about half of the names are foreign and do not indicate a former achievement or training sympathetic with our national ideals.38 Even less evidence is needed as to the subversive acts which are taking place: he has heard, upon hearsay evidence which gives neither place nor time nor name, Xhat poor children are taken on Sunday afternoons to see the mansions of the rich on Fifth Ave­ nue—the great houses they are to enjoy with the coming of the Revolution. He passes in review the chief eastern women's colleges and praises those which offer no course in socialism. He upbraids those institutions which have permitted socialist speakers; the fact of the speech is damning in itself. There is no allusion to the degree of critical intelligence shown by the student audience in listening to the "radical." Coolidge, elected to high office by the free vote of a free people, does not even respect the sanctity of the ballot. He informs his readers that Professor Mary Calkins of WellesIey ". . . is said to have voted for Debs for President at the recent election." 39 Was the casting of such a vote a crime? If so, why does he not name the other 919,798 American citizens who showed the same de­ pravity? Much of what he has to say is simply a feeble rehash of Burke's Reflections on the Revolution in France—"the accumulated ex­ perience of the past . . . the only method of a sure progress." 40 This much may be forgiven as old-fashioned political pedantry. But there is a further ominous note: "Sound principles will pre­ vail, but they will prevail only because patriotic citizens holding sound opinions take action that makes them prevail." 41 It is dan­ gerous business carelessly to counsel "action" in this country. More than one innocent man has been hanged by such advice.

2l8

THE LEGACY OF SACCO AND VANZETTL

Enough of Calvin Coolidge. His articles are a mixture of unde­ fined catchwords, rumor, and grossly incompetent reasoning. They might go unnoticed were it not for the fact that they repre­ sent fully and accurately the incredible prejudices and distorted thinking which passed for responsible public opinion in the spring and summer of 1921.

5 A sufficient body of evidence now lies before us. What does it tell us about the temper of the men of Norfolk? What does it mean for the Sacco-Vanzetti case? The answer lies partly in the fact that direct lines of influence can be traced, and partly in the light it throws on the mass habits of thought which operated in the 1920's. A single direct relationship will suffice; it is so clear and perti­ nent that one may reasonably assume the existence of many others. Palmer and Coolidge through their own words have revealed themselves as incapable of distinguishing between men whom they dislike and men who have broken laws. Now, these figures of national reputation had their satellites who aped them faithfully. Listen to one of them: Berger characterizes the action of the House as a "crucifixion," and in a manner of speaking it is. It is the crucifixion of disloyalty, the nailing of sedition to the cross of free government, where the whole brood of anarchists, Bolshevists, I. W. W.'s, may see and read a solemn warning.42 These words from the Congressional Record are by a Massa­ chusetts Representative. Eight years later, as governor of his state, his wisdom led him to deny executive clemency to two convicted murderers who were also foreigners, aliens, slackers, and anarch­ ists. The speaker is Alvan T. Fuller. We have seen that Sacco and Vanzetti had a number of quali­ ties which were irritating to the deepest feelings of the dominant American culture of their day. The larger part of this chapter has been devoted to an exposition of the manner in which that irritation expressed itself in violent action and rabid utterance. The final problem is to determine whether the antipathy between the accused and their jurors was so great as to influence the group of twelve at the very moment when their judgment was asked for

"MEN OF NORFOLK"

219

on a question of criminal guilt. The plaintiffs, Sacco and Vanzetti, must of course build their case upon circumstantial evidence. The present "jury," the persons who study this case a quarter of a cen­ tury later, now bear the responsibility of exercising sober thought, discrimination, and good sense within the limits of human power. There is a heavy accumulation of proof that the majority of Americans in 1921 were not well suited for service on a jury try­ ing social undesirables. Perhaps most of the twelve men at Dedham were in that way unfit. And if there was a "natural leader" among them, he is more likely than not not to have been one of the fatally incompetent. Of course, where there are leaders there are followers. On the other hand, anyone who has ever sat on a jury will know that there is a very good chance that one or more of the men on the panel will have a native instinct for judicial thought, an intense dislike of any and all tawdry appeals to prejudice, and an indefatigable grip upon his final judgment. We must be honest in weighing this chance. Is it not possible, nay likely, that one of the Sacco-Vanzetti jurors had read of Palmer's raids with dismay, chided his wife for buying the Delineator, and looked upon Thayer and Katzmann as unworthy of an American court? Or if there was no such man, may there not at least have been one of those queer persons who persistently sympathize with the un­ derdog? Conjecture has its weaknesses and no one of us was in the Dedham jury room. But conjecture supported by evidence can pass by degrees into historical opinion. Would a retrospective judgment be fair if it held that: (1) whether the verdict was wise or stupid is a matter for those learned in law; here, that problem is considered in the earlier chapters; (2) the majority of the jury, eleven men, if you will, were hopelessly infected by the diseased social thought of their day; (3) there is a fair chance that one man at least was fit to serve; {4) the verdict did not necessarily repre­ sent a conscious and malicious condemnation of the defendants because of their social nonconformity; (5) but, finally, no defend­ ants should be asked to stand trial before a jury of the sort which offers as a best hope the chance of one or two judicial men, or the consolation that there is no unanimous predisposition to a fatal verdict. An awareness of the weak quality of the jury and its verdict may explain one of the strangest incidents in the case. A local

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THE LEGACY OF SACCO AND VANZETTI

Norfolk county newspaper, The Brockton Enterprise, in its issue of July 15, 1921, described the scene at Dedham in these words: About ten minutes after the verdict the courtroom was cleared of all but a few. Williams [the assistant to Katzmann] walked through the room, his head bent. One of the attorneys for the defense met him, extended his hand and said, "Congratulations on a brilliant victory." With tears streaming down his face Williams replied: "For God's sake, don't rub it in. This is the saddest thing that ever happened to me in my life." With tears still streaming, he walked through the courtroom. The Enterprise considers this "typical of the manner in which Katzmann and his assistants took the verdict"; in other words, their humanity was moved by the result arrived at in the per­ formance of their painful duty. An entirely different explanation can be had by calling to mind the fact that it was Mr. Williams who had been deeply involved in the framing of Captain Proctor's testimony.

6 One of the oddities of Vanzetti's trial for attempted robbery at Plymouth is the fact that the record, although generally com­ plete, is missing in several peculiarly important places. Among these are the pages covering most of the judge's charge. Friends of the Italians have often claimed that Thayer committed the judicial impropriety of identifying anarchism and criminality. He is reported to have said: "The defendant's ideals are cognate with the crime." 43 Well, words which come down through hear­ say and from a prejudiced source need not be studied with great seriousness. Nevertheless, they are suggestive. Thayer may un­ wittingly have furnished the central idea for understanding the social thinking of his day. The men of Norfolk constituted a jury whose ideals were cog­ nate with their verdict.

Chapter VIII

TWO NATIONS ". . . all right we are two nations."—DOS PASSOS, U S A .

1 THE CENTRAL issue which divided national and world opinion on

the Sacco-Vanzetti case was the question of whether the two men should live or die. In itself it was, of course, a crude and simple issue devoid of much significance; life or death, as Vanzetti said, "that is nothing." The human race has never shown itself par­ ticularly sensitive or intelligent about the death of its individual members; the graves of those who die silently by starvation or in battle attest to the unimportance of mere extinction. What counted in this issue of mortality, as in all others, was the related social motivation and judgment. There were defects in the issue if we regard it merely as a test of individual or social sanity. In the beginning it lacked mean­ ing; it was tied to the essential stupidity of a sordid, greedy mur­ der. Only with the passage of time did it take on historical qual­ ity. And even at the end, when the people raged furiously, the ultimate objectives of the contending armies had not received strategic formulation. Many of those who wanted Sacco and Vanzetti to live had no plan for action after the getting of a hopedfor reprieve. Those who demanded death took little care to place in the historical record an intelligible statement of what they hoped to accomplish by carrying through with the executions. On the other hand, the issue became a powerful stimulant. Throughout the world men and groups of men were forced to define their position on a large variety of ethical, economic, and political problems. Awareness of the stresses, agreements, and oppositions in the social order became enormously increased. Of supreme importance was the fact that the Sacco-Vanzetti case re­ vealed the wrongness of the view which holds "society" to be an abstraction, and clearly demonstrated that the aggregation of 221

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THE LEGACY OF SACCO AND VANZETTI

humanity is nothing more than the sum of its intelligences and its passions. In this chapter, and the five which follow it, our concern will be with the manner in which various groupings of men and cer­ tain representative individuals reacted to the central issue. We shall examine the way in which people educated themselves, wisely or badly, when they were challenged by a case which in­ volved the accomplishment of justice. By "groupings of men" we mean simply those tenuous asso­ ciations of persons who are drawn together at one time or an­ other by some fraternity of interest.1 Individuals may fit into more than one of these groups; they may consciously reject the formal institution which ordinarily speaks for the group; they may even be unaware of their relationship to their fellows. Loose classifications of this sort must be used with cart, but they are indispensable in any attempt to bring order into the history of the currents which sweep through the multitudinous seas of human life. A number of groups were preponderantly favorable to Sacco and Vanzetti, although all were not active in support at the be­ ginning. Chief among these were: (i) the foreign-born, especially the Italians, (2) labor, (3) political parties of the left, (4) (anarch­ ists, (5) intellectual students of social problems, (6) the theoretical and active defenders of civil liberty. The co-ordinating agency for much of the effort made by these groups was the Sacco-Vanzetti Defense Committee. Some of the associative interests either divided sharply or re­ mained largely silent. The law—courts, practicing bar, and schol­ ars—was at odds. The press was unpredictable. The world of education gave off intermittent and unrelated flashes of opinion. The church had little to say. The negative view, demanding that Sacco and Vanzetti die, was held consistently by but one group—the general public. Ad­ mittedly, nothing can be more difficult to arrive at than the gen­ erality of opinion. It has no institutional nucleus; it lacks official spokesmen. It makes its will known as much through silence and passivity as through words and action. It does not know itself. And yet it is a reality. We must constantly be aware of it and careful to weigh its force.2 In the historical narrative which we are now ready to under­ take, the chief problem, then, is to determine the attitudes of

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223

groups toward the central issue. Two types of relationship will be examined. In the first place, emphasis will be placed upon the case itself; evidence will be submitted of the manner in which the elements of legal dispute were stressed, forgotten, distorted, and extended. Second, the social order will be appraised in terms of its strengths, its weaknesses, and its particular capacity for self-education. For purposes of clarity, the approach is chronological. Five main periods of social interest are distinguished: 1. May 5, 1920, to July 14, 1921. From the date of arrest to the date of conviction; the beginnings of dissension. 2. From July 15, 1921, to May 12, 1926. From the date of conviction to the date of the first unfavorable decision by the Supreme Judicial Court; the raising of the issue to the level of national controversy. 3. From May 13, 1926, to March 1, 1927. From the date of the un­ favorable appellate decision to the date of the Frankfurter arti­ cle in the Atlantic Monthly; the issue is intensified. 4. From March 1, 1927, to August 23, 1927. From the date of the Frankfurter article to the date of execution; the development of international opinion. 5. From August 23, 1927, to the present. The beginnings of histori­ cal judgment.

2 Immediately after their arrest, Sacco and Vanzetti found their interests taken in hand by their Italian friends.3 The great anarch­ ist, Luigi Galleani, who was the high priest of their immediate circle, had been deported nine months before; but other leaders came to their aid. Professors Dentamoro and Guadagni, of Bos­ ton, traveled about New England and brought in both moral support and money. Carlo Tresca came up from New York to place at their service his prestige among Italians and his skill as a journalist; it was he, apparently, who organized the first period of the "defense." Contributions to the Sacco-Vanzetti Defense Committee began in May; by July, hundreds of large and small sums were coming in from all near-by areas, chiefly from organi­ zations and persons bearing Italian names. Money was certainly needed; of the $5,051 contributed in the first three months, $4,800 was spent upon legal fees and expenses directly connected with Vanzetti's Plymouth trial. By May of 1921 picnics, theater shows

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THE LEGACY OF SACCO AND VANZETTI

and wrestling matches were bringing in sums as great as $700. Alien workers were obviously ready to help their kind. Vanzetti stood convicted of a major felony; indictments for murder were soon to be voted; the desperate need was for a better lawyer. Fred H. Moore received his first fee from the Com­ mittee on August 19, 1920, although it is possible that he may actually have been at work before this date. He was soon in com­ plete command of the legal defense, as may be seen by the fact that of the !3,986 spent in November no less than $3,495 passed through his hands. Fred Moore began his career as a railway lawyer in the North­ west. Within a short time he had established himself as a labor defense expert, particularly devoted to the service of the I.W.W. From 1912 to 1919 he was generally successful in a number of important battles; one of these was the Ettor-Giovannitti case in Lawrence, Massachusetts. He was unquestionably a brilliant, courageous, and hard-working man. Unfortunately, "Always he quarreled with the defense committees or the clients or got him­ self into some private emotional scrape and lost the laurels of victory." 4 Thus, for good or for ill, Sacco and Vanzetti became the central figures in another labor case. As the Defense Com­ mittee said in 1925: "A roll call of their supporters is first of all a roll call of the labor movement at home and abroad, for the defense of Sacco and Vanzetti was felt as a defense of the labor movement. . . ." 5 In October, 1920, the Workers Defense Union of New York contributed $200 to the Committee as a result of what was prob­ ably the first appeal for funds in the English language. The Workers Defense League did as well in November. By December the butchers', hotel workers', and tailors' unions were contribut­ ing, and from this time on funds were raised about evenly be­ tween labor and Italian organizations. In the great effort of May, 1921, no less than sixty-four union locals gave money; some of it came out of California, Colorado, Minnesota, Pennsylvania, Texas, and Wisconsin. Moore was also in active command of the general propaganda on behalf of the accused. He followed the pattern customary both in American criminal cases and in American charity campaigns, and worked up a number of sensational appeals. He was assisted by two able young journalists of leftist stamp, Art Shields and Eugene Lyons. Lyons was in Rome by November and succeeded

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to some extent in arousing the Italian press. He was also the author of "Another Frame-up Exposed," which seems to be the first general statement of the case; it was published in the organ of the International Workers in the Amalgamated Food Indus­ tries.® Shields wrote the first pamphlet, Are They Doomedf Whether all this was wisely done is a matter of opinion. In later years Lyons has come to feel that Moore, by deepening the im­ plications of the case, alienated, perhaps inevitably, some of the more conservative elements in the labor group.8 With money pouring in from Italian and labor sources, it was inevitable—and perhaps fortunate—that the numerically weaker radicals should be less conspicuous. Tresca, Elizabeth Gurley Flynn, and Fred Biedenkapp addressed meetings but caused no great stir. Felicani, an anarchist of Vanzetti's own type, was treas­ urer of the Defense Committee, but he was not a man given to public discourse. The most conspicuous radical in the group was Frank Lopez. His desirability as a resident alien had been ques­ tioned as early as February, 1918; now, at a time when he was working hard for the defense, he was ordered deported. Somehow he managed to stay; he was employed steadily and wrote some sound letters on behalf of the Committee; it is not until March of 1924 that we read of his salary being "paid in full." The anarchists supported the Defense Committee but they were less influential than the Italian or labor elements. The New England Civil Liberties Committee was asked to in­ tervene by the Workers Defense of New York. John S. Codman, leading figure in the Boston organization, was at first reluctant to do so; he had sat on a Norfolk county jury and been impressed by the "ability and fairness" of District Attorney Katzmann. Under the circumstances every presumption was opposed to our con­ cerning ourselves with these cases and when they were brought to our attention by the Workers Defense Committee \sic, read Union?] of New York we demanded that satisfactory evidence should be pro­ duced to warrant our taking action. [However, the conclusion was reached that] there is something more than a possibility that [Sacco and Vanzetti] will not be given a really fair and impartial trial.9 This statement was made by Codman on March 11, 1921, some time after the decision was reached; $500 had been contributed to the Defense Committee one month previously. Later, there was

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published the first pamphlet by any civil liberties organization, Sacco and Vanzetti: Shall There Be a Mooney Frame-up in New England? 10 Another liberal agency in Boston interested itself. On Guard was published in the spring of 1921 by the League for Demo­ cratic Control.11 One of the guiding forces in this organization was Elizabeth Glendower Evans. This remarkable person stands pre-eminent among the women who for seven years gave all of their strength and much of their money to the defense cause. Later we shall have reason to evaluate the work of Mrs. Evans in detail. For the present one need only note that it is with her appearance that contributions begin to come from such persons as Mrs. Louis Brandeis, Henry L. Mencken, and Samuel E. Morrison. Nothing is known of the reasons which led to the giving of ten dollars, on September 20, 1921, by the distinguished Boston politician and felon, James M. Curley. Of other groups which in time came to support Sacco and Vanzetti, little is heard in this first period. Socialists and com­ munists, and the intellectual and literary world, are hardly "in the case" at all. Nor do we hear anything of consequence from the law, the churches, or the colleges. Journalism, however, had begun its curiously diverse treatment of the issue. Vanzetti later claimed that his chances for a fair trial were prejudiced as early as the second day after his arrest by the appearance of a headline, "The People Tried to Lynch Sacco and Vanzetti." 12 On the other side there appeared a widely noted article by John N. BefiEel; it was entitled "Eels and the Electric Chair" and appeared in the New Republic of December 29, 1920.13 Beffel's article must have alerted liberal thinkers in general. He was entirely within his rights in stating that the case against the men was weak, but it was unfortunate that he based his charge upon the popular super­ stition that circumstantial evidence is by its very nature weaker than material proof. The issue is better handled in Clarence R. Skinner's "The Sacco-Vanzetti Case," printed in the Survey of June 25, 1921." The writer considers the type of support being given the accused, discusses the identification testimony (the trial was in progress), and emphasizes the fact that both Sacco and Vanzetti had spot­ less police records and good personal reputations at the time of

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their arrest. Professor Skinner's article is the soundest discussion of the case in this first crucial year; it came too late, however, to inform the community from which the jury was drawn or to influence the temper of public opinion by its dispassionate tone. Little is heard at this time from the public at large. The news­ papers do not carry letters to the editor and the demagogues are content with general denunciations of crime. We may assume, of course, that there was at least a tenuous association between the names of Sacco and Vanzetti and the massive prejudices which have been exhibited in Chapter VII. The case itself was at this time in the making; the record was not yet open to public inspection. Within the general social frame­ work there had taken place a preliminary crystallization of opin­ ion and sentiment which united those interested in the fate of the immigrant foreigner, the worker, the radical, and the poten­ tial victim of an unjust trial. 3

The activities in support of Sacco and Vanzetti from the date of their conviction to the first unfavorable decision by the Supreme Judicial Court on May 12, 1926, indicate considerable variation among the several groups. This came about partly because the record was being made known through the ceaseless activities of the defense counsel, and partly because certain elements in so­ ciety had new opinions to offer and effective channels for making their criticism known. Above all, the Defense Committee now saw clearly its function and rapidly developed its propaganda tech­ nique. During these five years the largest number of contributions continue to come in from Italian-Americans although this source accounts for not more than a third of the total sum received. The sympathy of this foreign group was constantly stirred by the pages of the Agitazione1 a news sheet devoted to the interests of the convicted men. It was published by the Defense Committee at frequent but irregular intervals. It must, however, be noted tJiat the general public paid little attention to Italian sentiment; it roused neither interest nor hostility. On the few occasions when Yankeedom noticed its alien enclave, it was easier to regard the Dagos as a subspecies of Red. Labor and the labor press continues to support the case with

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THE LEGACY OF SACCO AND VANZETTI

money and with propaganda. The sums given, about a third of the total, are more impressive than the published literature. Notices in the labor press are not very spontaneous and often seem little more than local rewrites of material sent out from Boston, or even simply space granted to the pamphleteers of the Defense Committee. Advance, organ of the Amalgamated Cloth­ ing Workers, gave a half page on the verdict in August, 1921, and another half page in September.16 The brief articles are by Lyons and Beffel. The Industrial Pioneer of December has an original "dialogue." There is in existence a mimeographed let­ ter addressed by Sacco to the delegates of the Amalgamated Clothing Workers, assembled in convention on May 5, 19*2; it is a fairly lively exhortation to worker solidarity but it is much better English than Sacco could write at that time.16 Routine appeals and reviews continue to appear for the next two and a half years. Then, rather suddenly, the picture changes. The labor world does not, it is true, become infected by a mass enthusiasm, but its opinion becomes weightier. It is another matter to find the Locomotive Engineers Journal coming through with "The Evi­ dence Doesn't Count" by Art Shields.17 The inaccuracies of this article are interesting. Sacco and Vanzetti are "two Italian workingmen—labor organizers" who had "been active in the labor movement for years—Sacco as a shoe worker, while Vanzetti led the only successful strike ever waged against the Plymouth Cord­ age Company. ..." Observe: (1) Vanzetti was not technically a workingman, (2) Sacco only assisted labor organizers, (3) Vanzetti detested all labor organizers, (4) no one person can be said to have led the Cordage strike, and (5) that strike was pretty much of a failure. The Locomotive Engineers Journal could assuredly have checked on these facts; it did not choose to do so. Why? In 1922 the forty-second convention of the American Federa­ tion of Labor had asked for a new trial. Now, in November, 1924, it adopted a stronger resolution characterizing the men as "vic­ tims of race and national prejudice and class hatred." 18 Why was this? These sympathetic expressions by the central, conservative organizations are not easily explained. They may have been gen­ uine awakenings; they may have resulted from the last efforts of Fred Moore, who was leaving the case at this time; or they may have been gestures of good will toward the new counsel. At any rate they did not apparently succeed either in lining up general

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public sentiment or in deeply stirring the great body of American workingmen. Nothing much resulted. The quality of Sacco and Vanzetti as radicals was becoming in­ creasingly known and emphasized; this arose from reiteration of that fact by the publicists of the defense, violent demonstrations by leftist groups throughout the world, and bitter resentment of that violence by American public opinion. As early as January, 1921, in the Defense Committee pamphlet, Conspiracy against Sacco and Vanzetti, the danger had been fore­ seen: . . . a Northern jury does not examine the law and the evidence impartially when a murder accusation is levelled against a member of the Mediterranean race whose reputation is colored with the fanciful versions of the Mafia that furnished Sunday-Magazine readers mental diet for so many years.19 Nine months later that view has crossed the ocean; a Milan labor group is reported in the New York Times as holding that the men were "condemned simply because they had subversive tenden­ cies." 20 Violent words and acts of violence in European radical labor history do not begin with the Sacco-Vanzetti case; it was simply that a new issue was available. There is nothing novel in the pro­ tests and demonstrations described in the Literary Digest of De­ cember 10, 1921.81 Similarly, there is nothing beyond automatic editorial response in the New York Times of this same period: "All over Europe, apparently, the various congeners of the Bolsheviki are going to howl against a fictitious injustice." It is, how­ ever, interesting to observe that same newspaper's handling of the news. Notice is taken of the fact that 8,000 met at the Salle Wagram in Paris to protest the verdict, and that twenty were in­ jured by a bomb explosion; this was true and correctly reported. Equally serious consideration is given to a statement by the French police to the effect that 100 Communists had slipped into the United States in September and October with the avowed purpose of causing trouble if the executions took place.22 Such violence as did occur was not approved of by the Defense Committee; convinced that general public opinion would in the end determine the fate of the men, they warned against a "mani­ acal gesture [which] threatens to blur the issues involved." 23 Pub-

230

THE LEGACY OF SACCO AND VANZETTI

lications generally sympathetic to the defense, such as the New Republic, saw the danger of reviving Palmerism.24 Palmerism or, in journalistic language, the White Terror, was as a matter of fact temporarily recessive. On February 25, 1923, Senator Thomas J. Walsh engaged in brilliant debate upon the allegations of the Report upon the Illegal Practices. . . .25 Politi­ cal alignment in the Senate never made it possible for the full body to consider that document but much of what Palmer had stood for was permanently discredited. Harlan F. Stone, upon assuming office as Attorney General a year later, was able to sound a new note: The bureau of investigation is not concerned with political or other opinions of individuals. It is concerned only with their conduct and then only such conduct as is forbidden by the laws of the United States. When a police system passes beyond these limits, it is dangerous to the proper administration of justice and to human liberty, which it should be our first concern to cherish. Within them, it should rightly be a terror to the wrongdoer.26 Of course the difference between Palmer and Stone is chiefly in the measure of the men; nevertheless it is significant that this re­ definition of the functions of the Federal police could be made without arousing the red-baiters.

4 The Sacco-Vanzetti material which has been deposited in the National Archives by the State Department throws light both on the nature of foreign interest in the case during the 1921-22 period and on the attitude of our government toward the international aspects of the problem.27 On August 6, 1921, a cablegram was sent to Washington by the Executive Committee of the Chamber of Labor Unions in Rome; the hope was expressed that "the crime of the execution of Sacco and Vanzetti will not be recorded [in American history]." Estab­ lished procedure called for the transmittal of such messages to the governor of Massachusetts; in this instance the covering letter gently corrects the language of the original communication—it is said to express "the hope that Messrs. Sacco and Vanzetti will not be executed for the crime charged against them." Other appeals and protests came from the Young Communist League of Nice,

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the National Proletarian League of War Cripples in Rome, "3,000 socialist families of Mont Sur Marchiennoises," and labor groups in Brussels and Zurich. American diplomatic and consular officers also communicated with Washington about protests and the likelihood of demonstra­ tions directed against their offices. The consul at Sao Paulo, Brazil, discussed the rumors that Bolshevik action might occur, and he asked for day and night police guard of his residence; in doing so he does not mention Sacco and Vanzetti. An official in Basle, Switzerland, was not too clear on the subject; he referred to a newspaper article "signed by the anarchist, communist and social [itc] organizations, protesting against the execution of two crimi­ nals, Sachi [i?c] and Vanzetti." Ambassador Herrick, in Paris, on October 12, 1921, telegraphed his observations on a "certain effer­ vescence in communist and anarchist circles"; in a confidential report from this same official, Washington was given detailed in­ formation about French communist agitation. This report is sig­ nificant chiefly because of the fact that Herrick gives as his source of information "the Action Fran^aise League"; it would be diffi­ cult to imagine a more prejudiced or untrustworthy source. The State Department itself took positive action on the case between October, 1921, and January, 1922. It received, on Octo­ ber 17, 1921, a memorandum prepared for its use by the Federal Bureau of Investigation, Department of Justice. This document may represent a summary of all or only a part of the files which became such an important issue in the case. The first part of the 5%-page document deals with the record of Sacco and Vanzetti as anarchists; the remainder deals with the Defense Committee and with the private reputations of some of its chief members. It is important to note that the memorandum is biographical in na­ ture; there is no indication of how information was arrived at, or of any plans for deportation action against Sacco and Van­ zetti. By November io, 1921, enough information was on hand to warrant the sending out of a circular telegram (to all diplomatic offices) over the signature of Charles Evans Hughes, Secretary of State. Most of this communication is a recital of undisputed facts about the crime and the trial; the tone is objective. The chief points open to dispute are these; (1) the suggestion that the de­ fense brought in the issue of radical beliefs in order to divert attention from the murder, or for propaganda, (2) the comment

232

THE LEGACY OF SACCO AND VANZETTI

that "the State never at any time took advantage of these facts [Vanzetti's previous conviction and the radical, political or eco­ nomic opinions of the defendants]," and (3) "the trial throughout was conducted in accord with the high traditions of the Massa­ chusetts courts." One can well understand the belief of Sacco and Vanzetti that all constituted authority by its nature was almost certain to work against them. Here was a State Department without a vestige of prejudice, under the leadership of a man of high intelligence and sensitive interest in human justice, misunderstanding an impor­ tant aspect of the defense, and failing to comment upon the repre­ hensible cross-examination of Sacco. The truth, of course, is that the Federal authorities were simply going through the motions of upholding American judicial procedure without any real knowledge of the facts. The chronology of events at this time is rather puzzling. The circular telegram just cited was sent out on November 10, 1921. Three days previously, the Department had requested informa­ tion on the case from the office of the Massachusetts governor; a memorandum, prepared by Katzmann, was sent to Washington on November 29; 28 it appears, therefore, that the November 10 telegram was based on some other source. The definitive position of the Department was embodied in a serial letter of January 27, !922. In this letter of January 27, the case is handled strictly in terms of its legal history; the presentation is fair and accurate, and the mistake as to the reason for the defense's bringing in the issue of radicalism is corrected. There is perhaps more emphasis on identi­ fication testimony than the subsequent development of the pro­ ceedings would warrant, but one must bear in mind that both sides were stressing this aspect at that time. The attitude of the State Department and the tone of its com­ munications in the 1921-22 period are fair to Sacco and Vanzetti. There is no evidence of either prejudice or hysteria. On the other hand, two procedural defects emerge rather clearly; (1) informa­ tion on a criminal action of this sort was sought only from one party to the controversy, and (2) that information, once acquired, was subjected to no testing by representatives of the other party or by independent examiners. The Department of State appears to have accepted completely the fiction that prosecuting attorneys

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are impartial officers of justice who have no interest in obtaining a conviction by anything but the most scientific and dispassionate means of inquiry. 5

Civil liberties groups were continuously active in these years. Mrs. Evans wrote again in La Follette's Magazine, which was probably a fairly effective way of bringing in middle-western sup­ port.29 The New England Civil Liberties Committee worked hard at getting money; the American Civil Liberties Union was deeply interested in the case; the two organizations joined in the release of Elizabeth Glendower Evans' Outstanding Features of the SaccoVanzetti Case.30 This 1924 pamphlet was well conceived and in­ terestingly written. It begins with an outline of the events in the case, and continues with a discussion of important elements of defense not included in the official record. It concludes with bio­ graphical sketches of Sacco and Vanzetti and a number of their letters available in no other place. One new organization made an appearance; in May, 1924, there came into being the Sacco-Vanzetti New Trial League which had among its leaders Mrs. Evans and John S. Codman. There is no evidence of a breach between this body and the Defense Com­ mittee; its creation may have been the result of unrevealed stresses or it may have represented nothing more than an effort in a new direction. It published a single issue of its Bulletin and then died.31 The traditional "long-hairedness" of the literary world perhaps accounts for one of the most widely held superstitions about the Sacco-Vanzetti case—that from the beginning a horde of poets, novelists, and miscellaneous writers were actively engaged in writ­ ing on behalf of the men. This is not correct. Some foreign authors had, it is true, seconded the famous appeal by Anatole France in his letter of October 31, 1921: People of the United States of America, Listen to the appeal of an old man of the old world who is not a foreigner, for he is the fellow citizen of all mankind. In one of your states, two men, Sacco and Vanzetti, have been con­ victed for a crime of opinion. It is horrible to think that human beings should pay with their lives for the exercise of that most sacred right which, no matter what party we belong to, we must all defend.

234

THE

LEGACY OF SACCO AND VANZETTI

Don't let this most iniquitous sentence be carried out. The death of Sacco and Vanzetti will make martyrs of them and cover you with shame. You are a great people. You ought to be a just people. There are crowds of intelligent men among you, men who think. I prefer to appeal to them. I say to them beware of making martyrs. That is the unforgivable crime that nothing can wipe out and that weighs on generation after generation. Save Sacco and Vanzetti. Save them for your honor, for the honor of your children, and for the generations yet unborn. Anatole France.32 This letter was written and received in 1921. It is significant that three years later, in a round-up of world opinion, the Defense Committee quotes from only one well-known American writer, H. L. Mencken.33 Social crisis has a way of developing new instruments for guid­ ance and action. At the beginning, the Sacco-Vanzetti Defense Committee was engaged only in the collection of money and the payment of legal fees and expenses. Within a short time it found itself propagandizing and educating the Italian community through the Agitazione. Eventually, the Committee became a publishing house with a monthly Bulletin in English and a large list of "in print" handbills, pamphlets, and small books. But its most important function, and one which it carried on with high skill, was the reconciling and integrating of diverse or hostile groups toward the one end of keeping Sacco and Vanzetti from the chair. The personnel of the Committee varied from year to year. John Barry, a stationary engineer, was chairman for a long time; he was the father of nine children. A shoemaker named Joseph Moro served as a volunteer for several years and then gave up a job bringing in more than $40 a week to serve on the Committee payroll at $30.34 These men are typical of a large number of ordinary working people who courageously faced ostracism and economic hazard in order to help the victims of "the class war." In this relatively inconspicuous aspect of the case one comes closest to the ideal of "proletarian solidarity." Significantly, these figures had little to say; we know what they did but we hear nothing of the philosophy which moved them. The central figures, however, were Aldino Felicani and Gard-

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ner Jackson. Felicani was a young Italian printer at this time moving over from a purely "craftsman" position in society to a modest degree of security as the owner of a small press. He is said to have been an associate of Mussolini in that dictator's socialist days and to have spent six months with him as a jail-mate.35 In Boston he seems to have enjoyed the confidence of the entire Ital­ ian community, including the extreme "individualistic anarchists" who claimed Vanzetti as their own. He edited the Agitazione. As Treasurer of the Committee he took in and gave out $360,000; at no time was there any suggestion that he had been less than completely honest and responsible in the handling of the treas­ ury. He was also the chief force in bringing together such funda­ mentally inharmonious elements as Italian anarchism, New Eng­ land liberalism, and legal scholarship. Those who worked with Felicani soon perceived that he was a man of extraordinary quali­ ties; to a broad knowledge of political theory he joined that rare power to dominate other men by purity of character. The best evidence of Felicani's worth lies in the fact that during seven years Vanzetti gave him his complete trust. The Secretary of the Committee during its last and most im­ portant period was Gardner Jackson. This young man, a news­ paper reporter, came from Colorado; his family had already pro­ duced several persons of intellectual distinction; he also had some wealth. Jackson was primarily responsible for the Official Bulletin (in English), and carried out ten thousand other duties. By con­ viction and temperament he was a liberal of the soundest type. He united an idealistic hope for the progress of humanity with practical energy and a useful sense of humor. Jackson and Felicani were a complementary team of power and intelligence. The variety and extent of the Defense Committee publications throws useful light on the social history of the period. The first major pamphlet was The Story of the Sacco-Vanzetti Case, Includ­ ing an Analysis of the Trial. Written in December, 1920, more than 75,000 copies had been run off by January, 1924.36 Shorter items are, Victory Is in Sight (January or February, 1923). and, less optimistically, The Fight Continues (March, 1923). In this same year, the Committee offered Vanzetti's The Story of a Proletarian Life, translated into English by Eugene Lyons with a foreword by Upton Sinclair.37 This brief autobiography was within a short time also translated into Yiddish, and it is most probable that it was available in Italian. Vanzetti gives his history to the time of his

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THE LEGACY OF SACCO AND VANZETTI

arrest; The Story is the foundation of all subsequent biographies; it will be discussed in a later chapter. An interesting pamphlet, embracing a type of propaganda effort which was to become increasingly frequent, is the four-page World Opinion Says They Shall Not Die. It gives quotations from newspapers and prominent persons in Europe and this country. The most important printing done by the Committee was the Official Bulletin. Its chronology indicates the rise and fall of the tide of Committee activity and is generally parallel to the degree of popular excitement. Volume I, no. 1. December, 1925. Volume I, no. 2. July, 1926. Volume I, no. 3. August, 1926. Volume I, no. 4. September, 1926. Volume I, no. 5. October, 1926. Volume I, no. 6. November, 1926. Volume I, no. 7. December, 1926. Volume I, no. 8. January, 1927. Volume I, no. 9. February, 1927. Volume 1, no. 10. March, 1927. Volume I, no. 11. April, 1927. Volume I, no. 12. May 15, 1927. Volume I, no. 13. June, 1927. Volume I, no. 14. August, 1927. Volume I, no. 15. September, 1927. Volume I, no. 16. [About November, 1927.] Volume I, no. 17. [About February, 1928.] Volume I, no. 18. [About August 23, 1928.] Volume I, no. 19. [September 11, 1930.] The first issue of the Bulletin contains a fairly typical mixture of miscellaneous material. There are articles on the position of the case in the courts and on specific aspects of the ballistic testi­ mony. There is a characteristic letter from Eugene Debs to Sacco: he speaks of "two absolutely innocent and shamefully persecuted workingmen . . . framed and doomed from the start." He calls for a "thousand protest meetings . . . a million letters of indig­ nant resentment." He cries: AROUSE YE TOLING

[sic] MILLIONS OF THE NATION AND SWEAR BY ALL YOU

HOLD SACRED IN THE CAUSE Oi' LABOR AND IN THE CAUSE OF TRUTH AND JUSTICE AND ALL THINGS OF GOOD REPORT, THAT SACCO AND VANZETTI, YOUR BROTHERS AND MINE, INNOCENT AS WE ARE, SHALL NOT BE FOULLY

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MURDERED TO GLUT THE VENGEANCE OF A GANG OF PLUTOCRATIC SLAVE DRIVERSI 88

An account is given of a visit to Sacco's family in Italy. There is "A Letter from England" in which the Labour Defense Council calls to the attention of Governor Cox a number of legal doubts; it is signed by George Lansbury, Ellen C. Wilkinson, James Maxton, Campbell Stephen, J. Bromley, Neil MacLean, J. H. Hayes, and W. MacKinder, all of whom were members of Parliament, and by six labor leaders. This issue closes with a list of contribu­ tions. In late 1925, the Defense Committee published its Financial Report which gave an accounting of its stewardship from the be­ ginnings to July 31, 1925. Supplements to this statement were subsequently carried in the Bulletin. There is much valuable information to be got from the financial record; particularly sig­ nificant is the increasingly frequent listing of contributions from Europe, from South America, and such far-off places as Hawaii. We learn that Fred H. Moore received his last payment in Octo­ ber of 1924, and that, on November 19, William G. Thompson was given the single fee of !25,000 which, in effect, bought most of the rest of his life. The summary in the Financial Report, with the later supple­ mentary information,39 presents a very interesting picture of what it costs to conduct a protracted criminal defense and to publicize an issue before the nation and the world. Receipts, including loans Disbursements: F. H. Moore, fees W. G. Thompson, fees Other fees

$360,000 !34,000 25,000 30,000

Total fees Moore, expenses .... Other legal expenses . Total legal expenses

89,000 |88,ooo 15,000 103,000

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THE LEGACY OF SACCO AND VANZETTI

Publicity, printing I 52,000 17,000 Salaries (for Committee employees) 41,000 Return of loans Other charges (chiefly unclassified legal and in58,000 vestigative expenses) Total disbursements

$360,000

The church and college groups remained quiet. A few state­ ments, generally sympathetic to the accused, appeared in the lib­ eral religious magazines, but most of the churchmen who felt any concern spoke as individuals connected with lay organizations. It was not until November, 1926, that a prominent religious figure attracted national attention by condemning the social morality of the situation. Willard L. Sperry, Dean of the Harvard Divinity School, was quoted in the New Republic: [I have] never been able to forget the shock . . . with which I first heard expressed the opinion that on the whole it was better that these men die than that faith in Massachusetts institutions should be shaken by a further review of the case.40

The press gave a good deal of space to Sacco and Vanzetti in 1921 and 1922; then, until the appeal decision of May, 1926, there was actually very little interest. The number of Sacco-Vanzetti notices in the New Republic affords a fair index because that journal had from the beginning been sympathetic to the men. 1920 ... 5 notices 1921 . . . . 9 notices 1922 . . . 3 notices 1923 .... 2 notices

1924 .... 1 notice 1925 . . . . no notices 1926 . . (up to May) . . . . 1 notice 1926 ... (after May 25) . .. 10 notices

The information and comment of the press in this period was friendly to the defense but not of .much help. Much of it was domi­ nated by legal emphases which had prevailed at the trial. Beffel in the New Republic of August 10, 1921, stated that the main issue was identification; he also offered the weak excuse that "most Italians carry revolvers." 41 Professor Skinner in the August 16, 1921, Survey comments on the identification problem, discusses the disadvantage under which foreign witnesses labor (a helpful point), has little to say about the ballistic testimony, and concludes with the startling remark: "The judge who presided over the case was undoubtedly fair to both sides." 42

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A more original analysis is found in Arthur Warner's "SaccoVanzetti—a Reasonable Doubt," in the Nation of September 28, 1921.43 He argues reasonably that this is not a Mooney case; in other words one is not confronted by the deliberate frame-up of a powerful and hated labor organizer. He feels that, on the whole, the Department of Justice is not deeply involved. He disposes of the problem of perjured testimony by pointing out that perhaps not more than two of the 150 witnesses told falsehoods. (Neither prosecution nor defense would have accepted that characterization of the record.) Warner's general cautiousness is put aside on one aspect of the case; he says; "The only explanation seems to be that as radical aliens and draft evaders they were regarded as a priori guilty of anything else and their defense was disregarded in toto by the jury." The Outlook, in November, takes no positive stand and con­ fines itself to a general warning that Americans "take good care lest in their natural reaction against violence they themselves are not contaminated by the insidious prejudices and passion of the White Terror." 44 At this same time, the Literary Digest devotes an unusually large amount of space to Sacco and Vanzetti; the summaries of fact are generally accurate and the magazine stated virtually no opinion. Louis Stark, of the New York Times, was sent to Boston on spe­ cial assignment in February, 1922. His feature article of four thousand words is comprehensive but not much concerned with the social frictions involved. Sixteen years later, in 1938, he wrote of this experience and made a number of startling revelations.45 The newspaper men, I found, with one exception, felt that the trial had been unfair because of the atmosphere surrounding the case . . . [the] unnecessary show of police force . . . needless searchings. . . . Newspaper men were "patted" for weapons. [In an interview with Thayer on February 22, 1922, the judge said] "I hope The New York Times is not going to take the side of these anarchists" . . . his remark was merely an introduction to a de­ nunciation of all radicals. [He made] no attempt to conceal his aver­ sion for economic and political dissenters and particularly foreigners. . . . It was obvious that to him a philosophical anarchist was the same as a murderer. He went on this way for an hour, jumping from the trial testimony to criticism of aliens, anarchists, and radicals . . . the measure of his extraordinary prejudice against Sacco and Vanzetti was obvious.

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Unfortunately, Stark's narrative has the force of hindsight. Sacco and Vanzetti and Thayer were in their graves. The attitude of the Boston American throws light on the erratic editorial policy of the Hearst empire. At the start, its inflamma­ tory headlines were anything but helpful to Sacco and Vanzetti. At the end it was both sensational and hostile to their interest. Yet in September, 1922, it took a curiously realistic and intelli­ gent attitude. In speaking of the retraction by Lola Andrews, it said: She is either crazy or someone in the district attorney's office ought to be arrested for attempted murder. . . . But in any event the value of this woman's testimony is now destroyed, and the most careful re­ examination of the whole evidence ought to be made by the Gov­ ernor. . . . And the people ought to consider once more whether they ever have the right to take human life when human evidence is so uncertain.48 This is sounder than the New Republic two years later; that jour­ nal refers to the appeal and says that "all the evidence will be re­ viewed in the higher court." 47 An elementary knowledge of Mas­ sachusetts law would have prevented a false sense of security based upon a type of appellate procedure which did not exist. As for the public at large we continue to be confronted by a general silence. Shortly after the trial, an abortive attempt was made to hold a parade; Superintendent of Police Michael Crowley refused a permit, and he is reported to have said that "[he] believes in good government, people who have confidence in our courts, might resent the criticisms of the courts that such a parade would imply." 48 No voices were raised in demand for the parade or in dislike of the idea; neither praise nor censure greeted Crowley's autocratic policy. The public was indifferent or satisfied.

6 Nearly five years have passed and there has been considerable shifting of the lines of social stress; however, the main groups are still fairly intact and rather separate. Interest in the men is greater although it has not yet stirred large masses of people. The fact that the men are convicted resident aliens is no longer a nuclear element. Those who felt a likeness of interest along this line found themselves without institutional spokesmen and were swept into other sympathetic groups.

241 Labor presents a contradictory picture. Generous contributions continued, and men like Debs used emotional language to express their passionate sympathy. But organized labor yields only per­ functory support at the beginning, followed by a heavy formality of judgment which seems to have had little effect upon anyone. Radicals were feared by the public which thought that all leftwing organizations were united in a master plan to overthrow all government by revolution. Actually, the whole radical thought of the world was in a state of confusion and largely undirected. It was easy to see, even before the sharpening of issues in 1927, that the radicals would never be effectively unified. Many of them, in this country, were keenly aware of the manner in which contemporary prejudices were hostile to Sacco and Vanzetti. It is curious to find no effort by this group to present to the public a full historical account of the evil done by prejudice and ignorance in the past; a poor choice was made—constant cries to the effect that, in this case, surprisingly and exceptionally, the irrelevancy of radicalism was playing a harmful part. Furthermore, no one seemed to be able to control the European radicals. Or, if they were uncon­ trollable, an attempt could have been made to minimize the irritating quality of foreign protests by showing that "Sacco and Vanzetti!" was nothing more than a slogan used to express the hatred of the poverty-stricken European for the much richer American. The civil-liberties group continued its effective educational work, and undoubtedly reached many intellectuals who would soon protest. But the innate handicap of civil-liberties doctrine was bound to operate; it never succeeded very well in translating its virtuous principles into language which could be understood by the man in the street. The most successful organization of these years was the SaccoVanzetti Defense Committee. In a way, its task was easy; it had only to seize upon every reasonable line of action or thought and work with it until a better came along. Nevertheless, an easy pro­ gram has its pitfalls, and these were skillfully avoided. By May of 1926, the Committee was known and respected by all who were concerned with the fundamental issue. The world of journalism, harsh as the judgment may seem, did a poor job. Enough useful facts were not presented, and there was almost no probing into the main elements of legal controversy or social friction. Nor can the excuse be offered that these omisTWO NATIONS

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THE LEGACY OF SACCO AND VANZETTI

sions sprang from ignorance. In 1927, and in later years, proof emerged that a great many newspapermen knew a lot more than they wrote. This is not the place for a discussion of the functional degeneration which marks the recent history of American journal­ ism. But the Sacco-Vanzetti case offers relevant testimony. Failure to comment on important matters can be as meaningful as lengthy discussion. Significantly, nothing much is said about the ballistic testimony, the failure of the prosecution to account for the stolen money or the other three bandits (and on this score positive action might have forced the hand of the prosecution), the defects of the Massachusetts appellate system, or the bad record of the United States in handling inflammatory criminal cases. From a broader point of view, the chief weakness of the groups desiring life for Sacco and Vanzetti was their failure to unite upon and insistently demand useful positive action. Perhaps this failure explains the absence of any important rebuttal by the opposition. 7

The ten months from May, 1926, to March, 1927, witness vigor­ ous ferment, the realignment of groups, new ideas, and heightened anxiety and bitterness. Labor continued to pass resolutions at its convention meetings: the Dallas Central Labor Council in May, 1926, the American Federation of Labor in January, 1927, and the United Mine Workers in the following month.48 A new note was struck when 15,000 New York furriers met in protest at Madison Square Gar­ den on May 22, 1926.50 The furriers held an extremely left posi­ tion in the New York labor group. Radical sentiment in this country and Europe took a new lease on life: Leonard Abbott wrote in Square Deal,51 and the Road to Freedom52 (central publication of New York philosophical anar­ chism) insisting that only a huge protest from all human society could save Sacco and Vanzetti. In Paris, Sacco et Vanzetti sont in­ nocents, liberons-les! was written by the civil-liberty expert Fernand Corcos, but published under the joint auspices of the Comit£ Sacco-Vanzetti and the Comiti Internationale de defense anarchiste.53 The issue created new bedfellows. The sounder American newspapers began to make a distinction between radical sentiment and the Tightness or wrongness of exe­ cution. The opinion of the press will be examined in a later sec-

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tion, but here, in dealing with the radicals, it is interesting to observe the beginnings of a petty and harmful selfishness. A writer of the left—who, in his personal political philosophy, was later to move over to the middle-middle center—objected: The prosecution of Sacco and Vanzetti is a class-prosecution. Their defense should be a class-defense, in which the services of kindhearted bourgeois attorneys and philanthropists are merely necessary evils.54

The civil-liberties groups were inactive at this time, perhaps because they themselves had been attacked as too radical by na­ ture. Temperate counsel advised against starting ". . . a cam­ paign in Boston to answer the attacks upon you [the American Civil Liberties Union] and other liberal organizations." Professor Frankfurter observed that the situation was improving and that, in any event, there was no clear major issue. He continued: 2nd. I hope very deeply you will do nothing until after the SaccoVanzetti case is out of the way completely: If the Civil Liberties Union and other like-minded organizations now come in, it is bound to be entangled with the efforts on behalf of Sacco and Vanzetti, and all such entanglement would hurt the cause of those men. I speak from a great deal of attention to the situation and a detailed familiarity, I believe, with the governing forces of the community.56

A new element for the first time made its voice heard, although the date is perhaps too early to say that the political parties of the left were extensively at work. The socialist press, in August, 1926, placed before its readers "Judicial Murder in the United States": this article is interesting only because of its inaccuracies—among them a fear that the men are to be executed within two weeks, although they had not yet been sentenced.56 In December, 1926, the first major American writer to be deeply concerned entered the case. John Dos Passos wrote "Two Interviews" for the Bulletin." He had talked to Vanzetti and Sacco in their prison and jail; the substance of the interviews is chiefly of interest for the biography of the accused, but at this point it is worth noting that Vanzetti protested against his treat­ ment by the prison chaplains. He said that both the Roman Cath­ olic and Protestant officials had spoken and written against him: " 'They hate me because I am an atheist' said Vanzetti. . . . 'They hate me because I am not a criminal.' " Confirmation of this charge has not been found but it merits consideration.

844

THE

LEGACV OF SACCO AND VANZETTI

Early in 1927 Dos Passos made his chief exclusively journalistic contribution to the defense. Facing the Chair runs to 126 pages; it was published by the Defense Committee and sold for fifty cents. Dos Passos reviewed the history of the case; a number of his emphases and his general observations on the temper of the times are worth commenting upon. He is deeply disturbed by the spy activities of the Department of Justice and the failure of officials to open the Federal files for study by defense counsel. He accepts the original explanation for the carrying of guns and adds a supplementary comment: "A great many people of all classes get a feeling of strength and manhood out of toting a gun." BS His analysis of anarchist motivation is penetrating; it is unfor­ tunate that counsel for the defense had not said something of the same sort at the time of the trial; Sacco's replies in his famous cross-examination might have appeared in better light: It is this inner picture [of the Perfect City] that is the core of feeling behind all anarchist theory and doctrine. Many Italians planted the perfect city of their imagination in America. When they came to this country they either killed the perfect city in their hearts and sub­ mitted to the system of dawg eat dawg or else they found themselves anarchists.69 Dos Passos's statement of the manner in which mass social preju­ dice operates is classic, even if its applicability to this case is denied: It was a frameup. . . . That does not necessarily mean that any set of government and employing class detectives deliberately planned to fasten the crime of murder on Sacco and Vanzetti. Though in this case it is almost certain they did. . . . The frameup is an unconscious (occasionally semiconscious) mechanism. An unconscious mechanism is a kink in the mind that makes people do something without know­ ing that they are doing it. It is the sub-rational act of a group, serving in this case, through a series of pointed unintentions, the ends of a governing class. . . . The frameup is a process that you can't help feeling, but like most unconscious processes it's very hard to trace step by step. Half the agents in such a process don't really know what they are doing. Hence the average moderately fairminded newspaper reader who never has had personal experience of a frameup in action is flabbergasted when you tell him that such and such a man who is be­ ing prosecuted for wifebeating is really being prosecuted because he knew the origin of certain bonds in a !District Attorney's safe.60

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The usefulness of the Sacco-Vanzetti Defense Committee as a co-ordinating agency and as an outlet for opinion is demonstrated by the Dos Passos booklet. The Committee was undoubtedly jus­ tified in the claim, made in February, 1927, that it had distributed 200,000 units of printed material. Its influence extended even beyond its immediate contacts; those who had something to say had learned that their remarks would not be distorted when reproduced in the Bulletin, and the regular press had discovered that the journal was both reliable as to fact and helpful for new ideas. In its columns one read of the action by the Massachusetts Socialist Party in calling for a commission of review, and the expressions of opinion by such various sources as the Massachu­ setts A. F. of L., the Ohio State Federation of Labor, the Illinois U.M.W., the Socialist Party of New York, the "United Front" meetings of California and the State of Washington, Count Bernsdorff, Fritz Kreisler, Maximilian Harden, Prince K. M. Lichnowsky, and the executive committee of the British Labour Party.61 In the November, 1926, issue, there is an editorial which dis­ courses on the imperfections of institutions, the intrinsic fallibil­ ity of expert testimony, and the power of the English Court of Criminal Appeals to consider matters of fact.62 The Bulletin also served as an arena for controversy. Moorfield Storey, an eminent Boston lawyer, wrote to the papers in general defense of the ethics of the prosecution; Professor Samuel E. Mor­ rison pointed out that Storey had written an introduction to Louis Post's Deportations Delirium, . . . and knew well that innocent men had often been cruelly abused and framed; Professor James M. Landis cited Moore v. Dempsey (261 U.S. 86), a case in which Storey himself had intervened although it meant the upsetting of a jury verdict.63 The Defense Committee also had its troubles. In July, 1926, there was difficulty in getting a hall for a meeting.64 "An Explana­ tion" was given in December; it stated that the Committee had no connection with the Communist Party, the International La­ bor Defense, or the Sacco-Vanzetti Conferences; these organiza­ tions were rebuked for having collected money and failed to send in satisfactory financial reports.65 A new and important group entered the scene at this time. The legal profession now apparently felt that justice might have to be fought for in the public forum as well as before learned judges. One of the earliest and most forthright statements was by a person

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who was both a lawyer and a man of political prominence. The issue was really joined when Joseph Walker, former Speaker of the Massachusetts house, bluntly asserted: "If the supreme court does not or cannot grant such new trial, then the Governor must interfere, for, as the matter now stands, Massachusetts cannot exe­ cute these men with a clear conscience." 68 We also find Professor Calvert Magruder, of the Harvard Law School, answering Dean Homer Albers, of Boston University Law School, who was opposed to the granting of a new trial.67 A novel occurrence was the intrusion by a professor of psychol­ ogy, Morton Prince, of Harvard, who read the law a lecture: Nor will I go into the details of the methods commonly employed by counsel on both sides, the practice of lining up the experts in two hos­ tile camps; of preventing those on one side consulting with those of the opposite side and thus from obtaining a knowledge of all facts upon which sound expert opinion is based; of restricting experts to answering framed and often ambiguous, disingenuous questions and thus stating half truths; of not permitting them to volunteer an opin­ ion on what sometimes are the vital questions in a case, or to explain adequately their opinions; and of other reprehensible practices. . . . All these and other admitted defects result from the experts on each side being engaged by that side, instead of being appointed officially by the Court and responsible only to the Court and reporting their opinion (subject to cross-examination by counsel) to the Court, as is the case in Germany.68 Another legal protest on behalf of Sacco and Vanzetti came from one hundred members of the Paris bar.69 Mass communica­ tions of this type are to become increasingly frequent. There has always been debate upon the value of such petitionary actions; one school of activist thought considers them tremendously effec­ tive; some students of social action, who may possibly be open to the charge of cynicism, are not enthusiastic. At any rate, in the Sacco-Vanzetti case the apparent result was not startling; just about what one would have expected if, thirty years earlier, a hundred Massachusetts lawyers had protested to the Paris bar about the Dreyfus prosecution. The first learned note on the case to appear in the law jour­ nals was printed in January, 1927. It is by R[obert] MJaynard] H[utchins] and deals expertly with the cross-examination of Sacco by Katzmann at the Dedham trial; bluntly, it also cries shame

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upon the tortuous reasoning of the Massachusetts supreme court. The writer says: [Quoting the Supreme Judicial Court on this point] "These ques­ tions . . . were within the rule that a witness may be cross-examined in the discretion of the judge to test his accuracy, veracity, or credi­ bility, or to shake his credit by injuring his character, and for this purpose his way of life, his associations, his habits, his prejudices, his physical defects and infirmities, his mental idiosyncrasies, if they affect his capacity, his means of knowledge, powers of discernment, memory and description may all be relevant." [The commentator then says] This rule interpreted literally, as it was here, may make prophecy as to what an appellate court will do more definite and sure. But it is submitted that this literal interpreta­ tion is one from which almost all courts theoretically following the same rule have withdrawn in dismay, and that it is an interpretation which in the present state of American jurisprudence, at least, may lead to the conviction of defendants for crimes which they never com­ mitted. Apparently the Massachusetts court is now prepared to hold that the discretion of the trial judge can not be abused as long as the questions asked tend to show that the witness has not the same social, economic, and political background as the average juror.70 The writer is examining law. If he had been studying social psy­ chology, he would certainly have been tempted to suggest that Thayer and the justices of the supreme court be placed before the bar of history as witnesses, that the ruling of the Supreme Judicial Court which opens the quoted passage be read to them, and that they then be themselves cross-examined as to the quality of their verdicts. Thus, the lawyers are now in with both feet. The major churches and their spokesmen remained silent. Only the unortho­ dox Community Church, a solitary and intellectualistic organiza­ tion, gave active support.71 Academic faculties continued reticent although individuals such as Frank W. Taussig, William E. Hocking, and William A. Neilson were deeply disturbed.72 There was a major change in the attitude of the important newspapers and magazines. In England the New Statesman de­ voted three pages to an elaborate factual history;73 the London Spectator, in November, 1926, printed the first of numerous long articles on the case.74 In this country the awakening of editorial uneasiness came about largely through the extraordinary reversal

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THE LEGACY OF SACCO AND VANZETTI

of attitude by the Boston Herald. That newspaper had been con­ sistently, although not angrily, hostile to the defense. Now it was confronted by the October 23, 1926, decision of Thayer denying the motion for a new trial based on the Medeiros confession and the related affidavits. The Herald was shocked; its chief editorial writer, F. Lauriston Bullard, wrote the famous "We Submit" which was to win him the Pulitzer Prize. In our opinion Nicola Sacco and Bartolomeo Vanzetti ought not to be executed on the warrant of the verdict returned by a jury on July 14, 1921. We do not know whether these men are guilty or not. We have no sympathy with the halfbaked views which they profess. But as months have merged into years and the great debate over this case has continued, our doubts have solidified slowly into convictions, and reluctantly we found ourselves compelled to reverse our original judgment.75 The editorial points out that Thayer knew he had no business in saying that the supreme court had "approved" his verdict. His innuendoes are distressing. The files of the Department of Justice should be examined. The worth of Medeiros's confession should be tested in court: ". . . the criterion here is not what a judge may think about it but what a jury might think about it." The Proctor affidavit raises grave doubts. If on a new trial the defendants shall again be found guilty we shall be infinitely better off than if we proceeded to execution on the basis of the trial already held; the shadow of doubt, which abides in the minds of large numbers of patient investigators of this whole case, will have been removed. And if on second trial Saeco and Vanzetti should be declared guiltless, everybody would rejoice that no mon­ strous injustice shall have been done. . . . Either independently, or through the stimulus of the Herald's opinion, other newspapers asked for a new trial. Among these were the Waterbury (Conn.) Republican, the Hartford (Conn.) Times, the Baltimore Sun, the Providence (R. I.) Daily Tribune, and the Washington News. The New York World had previously taken a positive stand. The Manchester (Conn.) Herald went so far as to say that "Murder is murder, whether it is committed by a Sacco or by a government department scared into insanity by the red bugaboo." 78 In the face of this greatly increased interest by loosely consti­ tuted groups, well-defined institutions, and prominent individ-

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uals, it was now inevitable that the public at large should begin to express its opinion. That part of the citizenry favorable to Sacco and Vanzetti had a ready stimulus at hand in the pronouncements of the defense leadership; on the other hand, part of this positive element may have felt that its view was adequately set forth and that individual comment was not needed. The negative view was also prodded on and held back by contradictory forces; some per­ sons may have felt moved to write or speak by a sense of obliga­ tion to defend a cherished social order; others were either em­ barrassed by lack of leadership or convinced that the authority of the state would take care of itself. No absolute scale can be found to measure the trends of general opinion; nevertheless there are indicators of some worth. In July, 1926, President Loebe of the Reichstag made a per­ sonal plea for Sacco and Vanzetti." It would be hard to imagine any person less likely to influence the insularity of the average Massachusetts resident; they had been to school with Henry Cabot Lodge for too many years. The appeal of E. A. Filene could not have had much more effect.78 Merchant prince, philanthropist, and man of good will he might be; but his voice was too consistently heard on the side of tolerance and fair play. His fellow townsmen probably wrote him off as one more sentimentalist. Of dubious persuasive power was the suggestion by Professor Morton Prince that the public consider the motives which led to Sacco's manifestation of a guilty conscience: There is no more difficult problem in psychology than the determi­ nation of the motive or motives that impel to behaviour. The happy legal mind commonly finds no difficulty, but the trained and experi­ enced psychologist is more modest.'9 Despite the profession of humility, there is a kind of academic conceit in such language which was calculated to confirm the irritable prejudice of the ordinary reader. Sacco and Vanzetti may have been helped to some degree by a rather significant defection from the ranks of unregenerate preju­ dice. Richard W. Child had been ambassador to Italy from this country at the time of the trial; he had been threatened in Rome and even now, on January 23, 1927, had "good reason to resent the campaign undertaken on behalf of Sacco-Vanzetti." But

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doubts had grown and he was now uneasy at the possibility of injustice resulting from excessive legalism. Those of us who are striving to make punishment for crime swift and certain realize to what extent we would be set back by an internation­ ally advertised tragedy of error, based upon slow and inflexible un­ certainty.80 The evidence for hostile public opinion in these months is peculiarly significant by the very triviality of its nature; the legal precept, "de minimis . . . ,"—"the law does not concern itself with trivialities," does not apply when dealing with a forum where little things are the essence of life. Thus, on February 15, 1927, Dartmouth men held a banquet at the Copley-Plaza hotel; there were cheers for Thayer and boos for Professor James P. Richard­ son who had testified to the judge's malice. In the newspapers of the day one read that the son of the murdered paymaster, Parmenter, had become a juvenile delinquent because he lacked a father's guiding hand.81 Most ironic of all these minor testimonials was the evidence at the contemporary murder trial of Ruth Snyder and Judd Gray; in order to divert suspicion they had left at the place of their crime a sheet from an Italian newspaper. A bitter editorial attack upon Sacco and Vanzettx is to be found in the Dearborn Independent of December 11, 1926. There is no reason to think that it expressed the personal opinion of Henry Ford—in fact there is later evidence to the contrary—but it is not unlikely that it was written by someone who thought it would please the monarch of that region. Partisans of Nicola Sacco and Bartolomeo Vanzetti, under sentence of death for murder, are attempting to persuade Governor Fuller of Massachusetts to pardon them by the classic argument of the bomb. The highest courts of Massachusetts have decided that they were granted a fair trial. The presiding judge has declared likewise, and has refused to open the case. The accused men have enjoyed a stay of execution for five years while eminent attorneys have argued the case on every conceivable technicality in the hope of finding a flaw in the verdict. The defendants have been afforded every opportunity before the law to prove their innocence. And the law has adjudged them guilty. But because Sacco and Vanzetti happen to be members of a revolu­ tionary party a great hue and cry is raised in their behalf. Charges of "persecution" fill the air. Demands for their freedom are made by radical organizations and newspapers throughout the land. Nor is this

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all. Bombs are exploded in front of United States embassies the world over. The homes of witnesses who testified against Sacco and Vanzetti are blown to atoms. The judge and jury who tried them are victims of retaliatory acts. Governor Fuller, visiting in Paris, is threat­ ened with death unless he accedes to the demands. Substitution of the bomb for ordered law is a dangerous experiment. Inaccuracy and irrelevance run a dead heat in this statement, and its inflammatory tone was hardly likely to result in sober public thinking. Elected officials may or may not appropriately reflect the views of the people who have voted them into office, but there is a rough conformity. We know that Alvan Fuller was elected to Congress, and we have read what he had to say about Victor Berger in 1918. His words did not prevent, and may have aided, his election to the governorship of Massachusetts which he now held in 1926. He spoke again, this time in the pages of Success Magazine, on the subject "Why I Believe in Capital Punishment." 82 The article is in the form of an interview. The reporter, in an introductory statement, observes that Fuller is believed to have given only one pardon since entering the executive office. The Governor is then quoted as saying: One thing I have particularly emphasized: strict enforcement of the law of capital punishment for those who have taken human life. . . . Friends, relatives, even newspapers are enlisted in a campaign to win over the sympathy of the man supremely charged by the common­ wealth with the carrying out of its laws. Sometimes for two or three weeks these assaults on his sense of justice may continue.83 The body of the article suggests the need for less sentimentality about murderers, modernization of the law, and more religion in life. Fuller has almost nothing to say, except by implication, on the question raised by the title. Vanzetti and many of his friends felt that the publication of this article gave warning that he and Sacco would not escape the chair if Fuller had anything to do with it; "Why I Believe in Capital Punishment" was understood by them to be a before-thefact justification for the denial of executive clemency. Such an interpretation is of course a matter of individual opinion. One thing is clear; the governor exhibits a fatally significant flaw in his logical processes; he characterizes all intervention—even by agencies of public opinion—as "assaults" upon his sense of justice.

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THE LEGACY OF SACCO AND VANZETTI

Fuller establishes the pattern for the public mind of Massachusetts in the months to come: relative indifference to the merit of the individual case and a ready assumption that established institu­ tions of law and order are being attacked.

8 Another ten months have passed and the controversy is much more active. The radical group is more vociferous and public response is increasingly irritable. Formally constituted political organizations of the left have entered the battle. An important writer has engaged his pen and his imaginative powers for the defense. Learned men of law feel that they must speak and the issue also evokes criticism of legal processes from other academic experts on the social order. Of major significance is the reversal of attitude by the Boston Herald and many other important news­ papers. All of this leads to the first measurable expression of gen­ eral public opinion. It is chiefly hostile to Sacco and Vanzetti, and automatically springs to the defense of threatened institutions; Governor Fuller's article is symptomatic of the prevailing pattern of thought.

Chapter IX

TWO NATIONS ( C o n t i n u e d ) 1 IN THE spring of 1927, the issue of life or death for Sacco and Vanzetti reached a degree of extraordinary intensity and touched the thought and emotions of millions. A triple shock was the cause. In the March issue of the Atlantic Monthly,1 Felix Frank­ furter, professor of law at Harvard, reviewed the case with great skill; later in the same month he published his findings in a small book.2 This was no ordinary happening; a legal authority of the very highest reputation had seen fit to comment upon a case while it was still under consideration by the Supreme Judicial Court of Massachusetts. The second climactic event was the unfavorable decision of the appellate court announced on April 5, 1927. If Frankfurter's act had raised the best hope yet possible, the court decision, following so soon after, brought an awareness of defeat by clearly marking the. end of all likelihood of saving the men through normal legal procedure. Finally, on April 9, Sacco and Vanzetti were brought before Thayer and sentenced to death. This dramatic event indicated to everyone, whether or not he knew anything of the law, that the great struggle would soon be decided once and for all. The chief practical problem for the defense was to find new grounds for action in the courts—not too easy a task—or to per­ suade Governor Fuller to enter the case by virtue of his executive authority. In the latter course they were successful in getting action, but it led to the disappointment of August 3 when Fuller gave his adverse decision. Between the end of February and August 3, we shall be con­ cerned chiefly with the legal profession, the press, and the public, within and among which groups there was fierce debate. Other associations of interest were only moderately active. The small voice of the anarchists was pretty well lost in the universal outcry. The Road to Freedom advised the workers to abandon "appeals," to prepare for the general strike, and to "use «S3

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direct action." No indication is given of the technique to be used in calling out the working world, and no definition is given of direct action. Edward H. James, who probably held views akin to those of Thoreau, spoke aggressively in Lawrence on May 27; he said: Mr. Fuller will not give in to us, and we will not give in to him. What happens when you have a situation of this kind? Something breaks. Either we break the government or the government breaks us. You may say that means revolution. I don't care what it means. I face facts as they are. I see aggression in the court-house, in the state-house, in the city-hall. I fight aggression.3 In France, the Anarchist Committee for Political Victims of Italy published a temperate Italian condensation of the Frank­ furter book and also called for a gigantic popular uprising.4 Direct action in the Boston area was at a minimum. A group of college students, under the leadership of Edward H. James, went to South Braintree and re-enacted the crime on April 15; the stunt went off without arrests although there was a tense mo­ ment. Chief Heany was agreeable and the police were polite; Selectman Edward E. Avery, however, gave James five minutes to get out of town or face arrest; Heany asked upon what grounds he was to base an arrest, and was told, "Never mind the grounds, lock him up if he refuses to leave." The police wisely did noth­ ing of the sort. The Commonwealth survived, and all but Avery left the scene quite content.5 One other instance. A month later Fuller received a package containing dynamite and accompanied by an illiterate letter signed "A Citizen of the World." Newspapermen were not allowed to photograph the communication. No one was injured and there was no arrest.® Obviously, neither by word or deed, were the supposedly ex­ treme radicals much of a threat. The Communist Party of America had decided by the spring of this year to take an active part in the struggle; its agency was the Sacco-Vanzetti Emergency Committee. As early 'as April 16, plans were under way for a mass meeting in Union Square, New York.7 Speakers addressed meetings in the Boston area,8 the New Masses gained distinction by publishing a fine Gropper cartoon,9 and the International Labor Defense printed Sacco and Vanzetti Shall Not Die!, a handbill in English, Italian, and Russian.10

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The really big communist gesture came on July 7. A protest meeting was being held in Union Square under the auspices of the Amalgamated Clothing Workers and other middle-of-the-road labor unions; about 10,000 were present. According to the or­ ganizers of the demonstration, a deliberate attempt was made by the communists to capture the speaker's stand; the communists held that all they tried to do was to get their leader, Ben Gold, on the platform in response to the demands of the crowd. At any rate, the "Battle of Union Square" was soon under way. One thing is certain: the police won the day by the simple expedient of hitting everybody. "As men were dropped to the ground they were picked up and taken to the park building, where their wounds were dressed." 11 The civil-liberties agencies continued their interest in Sacco and Vanzetti but in a way that is open to some misinterpretation. The filed correspondence of the American Civil Liberties Union contains a letter from its Director of that time in which he says: The Civil Liberties Union has been connected with the Sacco and Vanzetti matter, but has hidden its participation under various false fronts. We are at present instigating a nation-wide movement among lawyers in the various university faculties to join as signatories . . . for a review of the case de novo. This work is being done behind the name of a group of lawyers at Columbia. Karl Llewellyn is the chief promoter.12 To work quietly and without publicity, and to assist in round­ ing up lawyers who held genuine convictions that a miscarriage of justice threatened, is one matter—and that is what the Union was actually doing. It did itself, and the lawyers involved, no service by writing about its activity in a conspiratorial tone—with references to "false fronts" and instigation. It is a curious commentary upon the literary world that, in carrying the story of the case forward to within three weeks of the date of execution, the names of only a few prominent writers need be brought in. Upton Sinclair wrote to Fuller,13 and Gals­ worthy sent a letter for the use of the Committee;14 no new points are raised. Shaw commented guardedly because of his lack of knowledge, but emphasized strongly the British opinion that "it is impossible for us on this side to feel that execution would have been so long deferred if the case were clear enough to justify this infliction." 15 H. G. Wells wrote about the case in the London

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Sunday Express of June 5, 1927. He reviewed the facts with mod­ erate accuracy and then turned to what he considered the key to the whole tragedy—the cross-examination of Sacco. Correctly but irritatingly, he shook a sophisticated finger at the crudities of American culture: I do not believe that [Thayer or Katzmann] are naturally dishonest or stupid, I am quite willing to credit them with intelligence, integ­ rity, and public spirit. But it is crude intelligence, dull integrity, and sentimental public spirit. They have lived in an atmosphere where there is no subtle criticism of conduct and opinion, where everything is black or white, bad to be hanged anyway, or good to be given every privilege. The work of the Defense Committee continues along estab­ lished lines. The Awakening of America's Conscience was pub­ lished in April; without fanfare it offered excerpts from thirtyeight American newspapers which were dissatisfied with the cur­ rent position of the case. The same reasonable spirit was shown in the attack which the Committee felt it must make upon the International Labor Defense; that communist agency is rebuked for error; it is pointed out that there is no truth in the ILD charge that the Massachusetts Bar Association and several leading em­ ployers organizations had publicly upheld Thayer.16 The Committee acted as a collecting agency for the numerous petitions which were being circulated throughout the world; there were probably not less than 500,000 names presented to the Gov­ ernor." These petitions were accompanied by letters from the Committee to Fuller in which the chief doubts of the case were fully explored. They are well-written documents; they did not save Sacco and Vanzetti but, for an effort of their kind, they are of the best. Just what the churches might have done or should have done in the Sacco-Vanzetti case is a debatable matter. The issue, it is true, was not essentially religious, but it did involve the moral sanity of the community. And it is both puzzling and disappoint­ ing to observe the general silence in religious quarters. Of course it must be borne in mind that a good many men of religion were already privately involved; the general indictment has no bearing upon any individual; it is the institution which is open to rebuke. Here is the record of the church. Bishop William F. Anderson, at the Southern New England Methodist Conference, stated that

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he favored a careful review of the case and asked for prayers to assist Governor Fuller.18 Cardinal O'Connell, in speaking to the Holy Cross alumni, expressed his sympathy for the Governor and approved of his seeking advice "so that no human life will be taken while there is a reasonable doubt as to the perpetration of a crime." 19 The annual convention of the Episcopal diocese of Massachusetts accepted a committee report on the question of a review petition which held it "not expedient for this convention to take action." 20 The Episcopal bishop of Massachusetts, Wil­ liam Lawrence, did, however, ask for executive intervention. He was rebuked by the famous preacher Dr. Gordon in these terms: It is with great grief that I see that Bishop Lawrence heads an appeal for a review of the case of Sacco and Vanzetti. Gentleman rule is no better than mob rule. . . . The Herald calls this appeal "courageous"; it seems to me injudicious, and indeed, impudence.21 Dr. Gordon was wrong; as the New York World pointed out, the law of Massachusetts makes the governor an integral part of the judicial system. Rabbi Stephen S. Wise preached on the case, holding that; The lawless thing in this hour is to set up a doctrine of judicial infal­ libility and to maintain that because of it, there shall be no resort to the legal means of review which the law provides . . . a judicial murder is committed when in a court room the forms of law are ob­ served and the substance of justice or equity is ignored.22 The chief religious figure in the case from beginning to end, upon either side of the issue, was John Haynes Holmes, of New York; his personal relationship with Fuller will be discussed else­ where; here it need only be indicated that his interest was of a double nature because of his life-long concern with civil liberties. Lastly, there is the inevitable lunatic suggestion which always emerges from any group interest; on June 29 the charming advice was offered that Sacco and Vanzetti be paroled to Bishop Law­ rence.23 Of all the suggestions made for the solution of this un­ happy affair, this is the most bizarre. Here at least the imprisoned atheists and the Bishop could have joined in grim but hearty laughter. It must not be thought that all other groups which one ordi­ narily thinks of as concerned with social problems were markedly more responsive than the church. The world of higher education

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produced distinguished single commentators but the institutional record is almost a complete blank. Great men were wary; witness the reply of Dean Fackenthal of Columbia to the Rev. Harry F. Ward: "President [Nicholas M.] Butler has asked me to say . . . that he has not made a sufficient study of the case in question to warrant his signing any document concerning it." 24 It is with relief that one reads of Professor Hocking, of Har­ vard, speaking before an audience at Symphony Hall in Boston; he appeared upon the platform as a private individual, but a man of his sophistication knew that he could not divest himself entirely of his corporate affiliation, and he was willing that it should be so.25 Smith College, soon to be damned as the seed bed of radicalism and immorality, became involved in a comic opera episode. On April 19, a meeting for the discussion of the case was held in the high-school auditorium of Northampton, where the college is located. The audience was part gown, part town. President Wil­ liam A. Neilson was in the chair. Professor James M. Landis, of the Harvard Law School, spoke quietly and there was no dis­ turbance. A resolution was then presented which called upon Fuller to prevent a miscarriage of justice, whereupon a former Mayor of Northampton, William H. Feiker, asked to be heard. There were boos and catcalls, and the resolution was lost because of an "indecisive vote." Later, "Alderman H. W. Stimson referred slightingly to the action of the girls in packing the hall and pre­ senting a blockade that the citizens could not defeat; and spoke of their appearance in Oriental garments and costumes.' " 26 The puzzling stricture on women's clothing refers to the fad of the moment which called for the wearing of elaborate "lounging pajamas" at informal meetings. The group attitudes considered so far in this chapter have been in large measure marginal to the violent currents which churned the main channel. These currents aroused three other groups to controversy both more profound and more bitter; in the legal profession, the press, and the area of public opinion, society is deeply troubled.

2 The prime irritant was the Frankfurter article; the resulting question was whether or not there should be some sort of execu­ tive review; it was not always clear in the minds of some who

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debated whether they were chiefly concerned with Frankfurter's "ethics" or with the problem of seeing justice done. On May 15, seventeen lawyers petitioned for a board of re­ view.27 Charles C. Burlingham, an illustrious member of the New York bar, while not petitioning, observed that "it is not the Su­ preme Court of Massachusetts but the system of appeals which is under criticism." 28 On May 18, the public learned that sixtyone members of law faculties throughout the country had asked for a commission on grounds of reasonable doubt; the faculties of Yale, Columbia, Kansas, Cornell, Indiana, Ohio, Illinois, Minne­ sota, Missouri, Oklahoma, and Texas universities were repre­ sented in the group.29 Contrary views were at once expressed. The reporter of the decisions of the Supreme Judicial Court published his own pamphlet in which he argued that it would be "presumptuous and harmful" for the Governor to take such action; he also makes it clear that his admiration for the Governor is profound.30 Robert E. Goodwin and Joseph O. Procter, of Goodwin, Procter, Field, and Hoar, suggested that a fact-finding commission would in effect be an abdication of the Governor's powers of office.31 Thomas J. Boynton, former Attorney General of the state, avoided the ab­ surdities which have just been rehearsed; he objected to "the fact that the time has come when constitutional lawyers and clergy­ men attempt to set themselves up as a fact finding commission," and prefers to stand by the conclusions of the trial jury.32 None of these statements go to the heart of the social issue. For that we must turn to more intemperate and windy protests, such as that of Frederick W. Peabody, of Ashburnham. He wrote; It seems to me little short of an outrage that irresponsible, unin­ formed individuals throughout the country should have presumed to demand of you [i.e., the Governor] a decision declaring to the world at large that the courts of Massachusetts are incompeteat to adjudicate fairly and honestly in criminal trials. The courts of Massachusetts have long been famed for learning, integrity, and efficiency.33 The problem in dealing with a statement of this sort is to clear our minds of any concern over the fact that Mr. Peabody was wrong about the implication which the appointment of a com­ mission might have—and also to ignore his laudatory characteriza­ tion of the Massachusetts courts. It is the mood of the man which testifies to a social insanity capable of bringing death to those whom it holds in its power.

26ο

THE LEGACY OF SACCO AND VANZETTI

A battle between titans took place from April 25 to May 11 in the form of letters printed in the Boston Evening Transcript.3* The adversaries were Professor Frankfurter and Dean J. H. Wigmore, of the Northwestern University Law School. Wigmore was the author of the most comprehensive treatise ever published on the law of evidence; it was then and remains to this day the chief study of its type in Anglo-Saxon law. One might from this debate reasonably hope for a clarification of fundamental issues which would guide less learned men to an easy judgment. Wigmore attacked on April 25; Frankfurter replied April 26; Wigmore offered rebuttal on May 10; on May 11, Frankfurter confined himself to a statement of his personal relations to the defense. Here are the chief points of dispute: 1 . Wigmore stated that Frankfurter should not have said that the men called for jury duty represented a selected element in the community; Frankfurter replied that he had made that ob­ servation only about part of the jury (the men called from their Masonic meeting), and that the record supported him; the re­ buttal does not touch this point. 2. Wigmore asserted that Thayer did not say that the supreme court had "approved" the verdict; Frankfurter quotes Thayer's use of the word "approved" in the record; the rebuttal admits that Thayer did use the disputed word once, but indicates that satisfactory terminology occurs in eight other places. 3. Frankfurter was upbraided for not mentioning Sacco's im­ minent departure for Europe; Frankfurter quotes himself on this point; Wigmore admits the mention of the fact but says it was underemphasized. The whole argument on this element of testimony is very important because it is here that Wigmore re­ lies chiefly upon the famous passage in Thayer's ruling which quotes completely nonexistent cross-examination. 4. Wigmore said Frankfurter did not mention Sacco's cap; Frankfurter quotes himself; the rebuttal is silent. 5. Wigmore emphasized the fact that the defense introduced the question of radicalism, and justified the cross-examination of Sacco as a test of sincerity; Frankfurter points out that the prose­ cution had full knowledge of Sacco's radicalism, and that one is therefore forced to conclude that the real purpose of the interro­ gation was to inflame the jury against the witness; the rebuttal merely states the finding of the supreme court to the effect that this was not Katzmann's purpose.

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6. Wigmore contended that the Supreme Judicial Court did pass on the facts in the case when it upheld Thayer's denial of a directed verdict of innocence. He cites law and decisions to the effect that the high court can and does examine facts in such cases. Frankfurter replies by quoting the appellate decision: "only errors of law are before us. . . . As to findings of fact the trial judge's findings are final." The rebuttal asserts that this quoted phrase was applied only to the post-trial facts, and that one "ques­ tion of law" is always the sufficiency of evidence. (Wigmore must have known that he was being indefensibly legalistic on this point; note the reform of Massachusetts appellate procedure in 1939.) This brief summary of the debate is necessarily superficial; the original material is closely packed and not susceptible to conden­ sation; the interested reader will do well to turn to the letters as they were printed in 1927. Nevertheless, certain general observa­ tions are appropriate, quite apart from the technical issues in­ volved. It is an indisputable fact that lawyers hostile to the defense did not, after the appearance of these letters, use the Wigmore charges as a foundation for their arguments; they used his name but not his opinion. Why was this? Two answers are possible. In the first place, putting aside opinions and emphases, it is obvious that the Dean is wrong on important matters of fact and that Frankfurter is right. One can pick up the Frankfurter book and read passages which Wigmore said did not exist. Nor had Wigmore read the official record carefully; one may turn to it and search in vain for a passage which Wigmore used. He relied on Thayer, and Thayer let him down. Second, there is the problem of tone. Frankfurter is impersonal and addresses himself exclusively to the case. Wigmore, on the other hand, attempts to be insulting and succeeds in being child­ ish. He refers many times to Frankfurter as a "prominent pundit" and "a contra-canonical critic." He accuses his adversary of "dan­ gerous plausibility" and of being a "past master of evasion and insinuation." He concludes: "If the Bar of Massachusetts should take this body-blow lying down, they would deserve to suffer their profession polluted and their bench bolshevized by agita­ tors financed and led as this one has been." Even President Lowell of Harvard, who was soon to be con­ vinced that Sacco and Vanzetti were guilty, could not stomach Dean Wigmore's arguments or language. Looking backward, in

26a

THE LEGACY OF SACCO AND VANZETTI

a letter of November i, 1927, to Chief Justice Taft, he writes: "Wigmore's ridiculous article looked as if there was nothing serious to be said on the side of the courts." * Dean Wigmore was one of the great scholars of his day. One can also read many passages in his published writings which show devotion to the highest concept of justice; he constantly is aware of the fact that the law must, like all human institutions, be imbued by a spirit of humility if it is to deal with the mournful failure of man to be less than perfect. Nor was Wigmore senile. The only reasonable conclusion is that he, like so many men infinitely less wise, temporarily lost his capacity to function as a social creature. Another technical debate took place at this time on a special point. Morris Ernst discussed the fact that the Supreme Judicial Court had upheld Katzmann's failure to call witnesses who would have been useful to the defense. His article was submitted by the editors of the Nation to a group of prominent lawyers.35 Emory R. Buckner, Allen Wardwell, Julius Henry Cohen, George Gor­ don Battle, and Max D. Steur held varying opinions; the major­ ity recognized the theoretical principle that all useful evidence, whichever side may know of it, should come before the jury. The effect of these debates upon the opinion of most practic­ ing lawyers was presumably not great; the discussion probably left their first position unchanged; there is no reason to suppose that the general run of the bar is any more imaginative than the mass in any group. At the height of the dispute, F. Lauriston Bullard, author of the "We Submit" editorial, wrote a special review of the case for the New York Times. He said: Probably four in five, perhaps nine in ten, of the lawyers of the city [Boston] are anti-Sacco on the ground chiefly that nothing must be permitted to damage the reputation of the judicial system of Massa­ chusetts. To which the minority, including not a few lawyers of eminence, reply that nothing can do the courts more harm than to proceed to the end on the assumption of their infallibility.36 3

The newspapers and general magazines of the country by now understood that they had an event of national interest on their hands. The New Republic, which had noticed the case eleven •Henry A. Yeomans, Abbott University Press, 1948), 494.

Lawrence Lowell, 1856-194}

(Cambridge: Harvard

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times in 1926, was to carry fifty articles or editorials before the end of 1927. In July, the Baltimore Sun supplemented its regular Associated Press service by a special order for 18,000 words. And it is interesting to observe that most of this increased activity was in response to the April 5 decision of the supreme court rather than to the colorful circumstances surrounding the sentencing of April 9. The Springfield Republican, under the distinguished editor­ ship of Waldo L. Cook, pounded away relentlessly in strong language. It held that: To many the most distressing aspect of the decision was the supreme court's affirmation of its own powerlessness: "It is not imperative that a new trial be granted, even though the evidence is newly discovered, and if presented to a jury would justify a different verdict." 37 . . . we are now forced to declare that a dog ought not to be shot on the weight of the evidence brought out in the Dedham trial of Sacco and Vanzetti.38

Statements of this sort were soon to lead to angry rejoinders. Peripheral New England was equally disturbed by the con­ fusion of issues; the Hartford Times said: The judiciary of Massachusetts seems to be obsessed with the curious notion that unless these two men are executed—whatever the facts of their guilt may be—the reds will have won a victory over the State and law and order.39

William Allen White, editor of the Emporia Gazette, held a position as the unofficial dean of American journalism and was also generally regarded as an expert upon the practice of democ­ racy. He visited New England at this time and upon his return home at once wrote to Governor Fuller. I have just returned and I was surprised beyond words to find the bitterness and hate which had sprung up in New England, particu­ larly in Massachusetts, among those who fear that Sacco and Vanzetti will not be executed. Until I went into Massachusetts, into the homes of my ancestors in fact, I had no idea that men could let their passion so completely sweep their judgment into fears and hatreds, so deeply confuse their sanity.40

Newspaper comment was not confined to New England or to those who had a special interest in that region. A great many of the smaller dailies had their say. They were, of course, to some

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degree uninformed about the case; but they did know that cer­ tain tendencies in the national psychology were capable of work­ ing injustice; history had taught them that fact. The Duluth (Minnesota) Herald of April 22 said: This newspaper cannot profess to know whether these men are guilty or not. It believes that they are not guilty; that if they had been Smith and Brown, Democrats and Republicans and supporters of the war, the jury wouldn't have taken two minutes to acquit them on the evi­ dence presented against them. And it knows that no greater harm could happen to the fabric of the law in this land than to have men executed for murder merely because they are foreigners, radicals and pacifists.41 The Macon (Georgia) Telegraph no longer had any reserva­ tions about the case: This rotten business up in Massachusetts about Sacco and Vanzetti is now too old by far for temporizing. The time has come for all who love justice to get just as excited as possible and to make a noise about it. Joshua had the right idea. He did not bring Jericho down with any well-considered argument. It was not even enough to send any of his intellectuals out to play persuasive airs upon the flute. All the blare and brass of trumpets was his method. The walls came down because he dared to make a din. Why should any of us consent now to be polite about Judge Webster Thayer and the dirty work in Dedham? The reproaches ought to ring in the ears of the old man from Worcester.42 The great metropolitan newspapers were generally less inclined to argue vigorously. Some were silent, others confined themselves to platitudes. It was not until the ultimate phase that everyone was forced to say something, one way or another. There were exceptions in the spring of 1927; the World in New York, and, with greater force, the Post-Dispatch in St. Louis were all-out for a new trial. The only newspaper which consistently opposed all measures for executive intervention or special review was the Boston Evening Transcript. It rebuked Fuller for appointing the Ad­ visory Committee: The Commonwealth is on trial . . . whether it is competent to con­ duct its own judicial business or whether it shall be stampeded into scrapping the ways that have stood the test of time and experience.43

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The Transcript was usually complete in its handling of the SaccoVanzetti news and gave the defense adequate representation. It did, however, occasionally editorialize the news. On June 18, it reported that an anonymous crank letter had been received by the United States Ambassador to Chile, that the communication had been forwarded to Secretary of State Kellogg, and finally by him to Fuller. This utterly trivial event was made the leading news item on the first page.44 Nothing very powerful came out in the magazines. The New Republic has often been charged with undue partiality to Sacco and Vanzetti. As a matter of fact, it was in April just catching up with more advanced views which had been expressed in other places. It senses a resolve on the part of Massachusetts "to go through with it" but believes it "unthinkable" that Fuller will allow the executions to take place.46 By May 25, it is surer of the nature of the social stress: They [the descendants of the early English settlers] consider their own prestige and that of their class compromised by the challenge of the Sacco-Vanzetti verdict. Thus their stubborn and impassioned defense of a doubtful conviction is chiefly a matter of pathological class con­ sciousness.46 Other magazines were moved to varying degrees. Collier's asked for a commutation of sentence in order that the case might have further study and that a possible tragedy be averted. 4 ' The Nation, in May, wrote an editorial letter to Fuller;48 it is a document of measured and dignified language; it has been characterized as inane because of the respect with which it addresses the Governor, but surely there was sense in not looking for trouble. One of the best journalistic studies came out in 3. relatively inconspicuous magazine. Fabian Franklin's "The Logic of the Sacco-Vanzetti Case," printed in McNaughts' Monthly, is both temperate and penetrating.48 And yet, in view of the developing tension, one wonders whether an article with these qualities could have had any effect, wherever it might have been published.

4 In distinguishing the chief groups which debated the SaccoVanzetti issue, it was stated that the only major opposition to the pleas of the defense came from the general public; evidence to that effect is now in order.

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OF SACCO AND VANZETTI

The public did not, of course, think only about the Massachu­ setts case. Lindbergh was flying the Atlantic. Al Smith's Catholi­ cism, and its bearing on his presidential nomination, was cur­ rently the subject of bitter debate. The Snyder-Gray murder trial was staged in May. Direct action was chiefly in the form of petition. On May 19, Michael A. Musmanno appealed to Fuller on behalf of the order of The Sons of Italy, an important Italian-American organiza­ tion.50 The plea is temperate and its chief emphasis well chosen; he stresses the fact that major banditry is usually committed by men who have a long record of criminal predisposition, which was certainly not true of Sacco and Vanzetti. On June 23, the office of the governor was presented with a petition for executive intervention or clemency signed by 472,842 persons all over the world.51 Two weeks later, the Swiss Union of Workers added 153,000 names to the total.52 These petitions were transmitted through the Defense Committee. Swedish labor and socialist groups had sent George Branting to this country to study the case objectively; he announced find­ ings favorable to the accused in June.53 Nothing came of this beyond further public indignation at interference by foreigners. Of greater significance as an index to public sentiment is the resolution passed by the annual convention of the Massachusetts State Council, Knights of Columbus: Whereas . . . we . . . detest and abhor the false doctrines and de­ ductions of atheism, communism, and similar sophistries, . . . we con­ demn and denounce the specious and destructive propaganda aiming at the weakening of the foundations of the republic. Nevertheless we pray God no human life will be taken without the fullest examination the law permits into the guilt of those accused and that God will give his light and strength to our good Governor to make the final decision relating to those under accusation for crime and by that decision thus strengthen the force of law and authority in the republic and remove all reasonable doubt as to the guiltiness of those concerned.54 One wonders whether the framers of the resolution were con­ scious of the wishful thinking so obvious in its phraseology. Most of the evidence for the state of public opinion lies in the letters written by private individuals to the Governor or to the editors of the newspapers. The first class, those addressed to Fuller, were counted and then presumably destroyed. Not all could be read; even as early as May 26 the total received at the

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267

State House was A fair attempt was made to announce to the press the contents of letters signed by important groups or individuals; such communications may therefore be examined along with the published newspaper correspondence. Of the communications favorable to Sacco and Vanzetti four examples will be sufficient to indicate their quality. Howard Bradstreet urged "that such action shall be taken . . . as shall set at rest forever any imputation of unfairness either in the na­ ture of the facts presented, since ascertained, or the verdict based upon them." 56 An attorney, Abraham Wirin, wrote learnedly and dispassionately on the ethical right of Professor Frankfurter to comment upon a case while it was still under adjudication; al­ though the question is a collateral one, it should be noted that he proves his point very satisfactorily, Wirin admits that, gener­ ally speaking, lawyers should not comment publicly upon cases which are before a court; he then further explores the canons of the profession and finds good evidence to support the view that, when a miscarriage of justice threatens, members of the bar have both the right and the obligation to present learned opinion per­ tinent to the dangerous situation.57 A very powerful statement was that contained in a letter signed by twenty-six persons of great prominence in New England; the signatories included J. H. Hammond (inventor, millionaire, and public figure), Richard Cabot (professor of sociology, of the bluest blood), Margaret Deland (novelist), Carl Dreyfus, F. W. Hallowell, and A. Lincoln Filene (merchants), Mrs. Arthur G. Rotch (President of the Massachusetts League of Women Voters), Bliss Perry, Arthur M. Schlesinger, Sr., and A. N. Holcombe (profes­ sors at Harvard, distinguished in literature, history, and political science), Morton Prince (professor of psychology), Mrs. William Z. Ripley (President of the Boston Women's City Club), John F. Moors (member of the law firm of Moors and Cabot), and Mrs. R. G. Hopkins (Foreign Policy Association). The majority of these signers could be described as "conservative" in their general social philosophy; practically all of them were members of "the best society." Their letter raises fundamental issues which make clear that the public was thoroughly conscious of the fact that the question of guilt involved mixed legal and social issues. They consider these problems:

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I. The nature of the supreme court decision. Has any judge, othei than the trial court, pronounced judgment upon the question whether the evidence at the trial justified the verdict of guilty, or upon the value of the evidence discovered since the trial? II. The question of the bullets, (i) Is it admitted that of the six bullets found in the bodies of the murdered men only one could pos­ sibly have passed through the pistol found on Sacco? . . . [Discussion of the Proctor affidavit, and Thayer's interpretation of Proctor's origi­ nal testimony in the charge to the jury.] III. As to the character and circumstances of the defendants, (i) Were both Sacco and Vanzetti in comfortable circumstances before the murder? (2) Had they ever before been arrested for crime or mis­ demeanor? (3) Did they attempt to hide or change their course of life after the murder? (4) Was the stolen money traced to them or to their associates? IV. As to the character of the murder. (1) Was the combined holdup and murder so planned and executed as to be obviously the work of professional criminals? [(2) The weight of the Medeiros-Morelli ele­ ment.] V. Witnesses. [The worth of their testimony, and their personal reputations.] VI. "Atmosphere" and "consciousness of guilt." [The weight of this issue, the relevance of the Red raids.] (3) Was the public mind so inflamed against radicals and draft evaders in 1921 as to make a fair and unprejudiced consideration of the case on its merits difficult even for the most well-intentioned members of a jury?58 These questions go far. They probe the worth of the appellate system, the weakness of the prosecution's case (in not completing the picture—bullets, stolen money), the force of psychological evidence in estimating the criminal potentialities of the accused, and the influence of public prejudice in criminal trials. This "Letter Signed by Twenty-six" marks the high-water mark of informed public criticism. Later, we shall try to determine why it did not have effective force. Finally, a small group of five asked for a review commission.59 The force of this request may have outweighed all others; among the signers were William Lawrence, Episcopal bishop of Massa­ chusetts, Charles P. Curtis, Jr., member of the Harvard Corpora­ tion, and Roland W. Boyden. The last name is of special interest. Reference has already been made to the fact that Messrs. Good­ win and Procter, of Goodwin, Procter, Field, and Hoar, had spoken against a review. That had been a protest of weight be­ cause of the eminent position occupied by the firm. But now

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Boyden spoke; Boyden of Ropes, Gray, Boyden, and Perkins. In Boston the name of that firm has such magic force that it is sel­ dom mentioned; one only thinks it. In turning to public opinion which was hostile to Sacco and Vanzetti, the social historian who has any respect for our na­ tional culture would be overjoyed if he could turn up reasoned and well-argued material. It must, however, be confessed that this cannot be done. The opposition is angry, irrelevant, and sadistic. This lamentable fact does not prove Sacco and Vanzetti innocent but it does prove something very disheartening about the majority of Americans in 1927. Witness the record. Robert Bushnell, a public prosecutor, addressed the Interco­ lonial Club of Boston: Since when . . . have we tried cases before the faculty of Oshkosh, or even Harvard or any other college or university, however well-mean­ ing and well-intentioned the gentlemen? Were the faculty of Oshkosh in court when this case was tried? Did they see the witnesses? Did they have the same opportunity as judge and jury to decide guilt or inno­ cence? Are their opinions entitled to the slightest weight whatsoever? [Wigmore], this great authority and deep legal thinker has, in a few penetrating words, stripped the sinister veil which has hitherto sur­ rounded the organized propaganda.60 Bushnell is right about the prime significance of the original court proceedings; he is also hopelessly narrow. He is wrong in his implication about the nature of the propaganda, and he offers no evidence. Some correspondents hold that "At a time when the Reds of Moscow, Paris, Buenos Aires are striving to supplant Massachu­ setts justice . . ." 61 "radicals, traitors and would-be destroyers of liberty [should] pay the penalty for their crimes and may God have mercy on their souls." 62 Or, more pithily, ". . . a first class hanging in any community does good, sometimes." 63 Furthermore there is political wisdom in a good strong policy; Fuller received a telegram: Would respectfully remind you that a former governor of Massachu­ setts won approval of entire Nation and is in White House today be­ cause in a difficult situation he stood for -law against radicalism.64 The central element in these extreme expressions of opinion is the same which is said to have been in Thayer's charge to the jury at the Plymouth trial of Vanzetti. They are bad men; kill

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them whether they murdered or did not murder. The principle is stated with beautiful simplicity in a letter by Charles Albert to the Herald. The date is May 10: Let us suppose for the moment that the two men under sentence are not the ones by whose very hands the actual murders were accom­ plished; they were done by some ones who had the same objects, the same ideals of social life, the same beliefs and purposes in general. To sum all up, they had the same disregard of social obligation, the same contempt and hatred for law, the same intent to seize by what­ ever means they might wish to become possessed of. In a word, they were potential murderers all . . . to my mind, these men now in limbo, whether or not they actually fired the shots . . . are just as guilty as the carbarn robbers who were all so rightly executed for the actual deed of one. The consternation of Dean Willard L. Sperry and William Allen White can be understood. The most widely circulated of all attacks on Sacco and Vanzetti was that made by Frank A. Goodwin in a speech before the Lawrence Kiwanis Club on June 30. The orator had achieved some fame by his efficient work as state Registrar of Motor Ve­ hicles; he was often in the public eye. He did not, in fact, say very much about the merits of the Sacco-Vanzetti case; he is chiefly interested in exposing the radical conspiracy which threat­ ens the peace and morality of the entire country. Thank God for the fundamentalists, both religious and constitutional. The citizens of Norfolk county know these men are guilty— On the other hand, in those domains where foreign and un-American princi­ ples are in vogue, such as Russia, Harvard, Argentine, Wellesley, China, and Smith, they are sure these men are innocent. . . . The leader of the movement to set these two murderers free is Felix Frankfurter. . . . As the result of the work of Frankfurter and the rest of the gang . . . [Mooney and Billings] were pardoned, notwith­ standing the enormity of their crime. . . . Out of the movement to free Mooney emerged the organization known as the American Civil Liberties Union, around and through which all the unpatriotic and communist organizations of the country are functioning, and getting their inspiration. . . . Radiating out from this organization, with interlocking directorates, there are some 500 others, having for their purpose the destruction of our government by force, the weakening of our army, navy and other defenses, the destruction of the home, the Boy Scouts, and all the other institutions that Americans hold dear.66

TWO NATIONS

271

Goodwin is using material, much of it old stuff, which a profes­ sional agitator, Fred R. Marvin, had been dispensing for years. Marvin's nonsense had served Coolidge as far back as 1921 in the "Enemies of the Republic" articles. Nevertheless, irrelevant and frenzied as Goodwin's words may have been, they were widely read; several newspapers printed the speech in its entirety and it was also distributed out of Philadelphia as a pamphlet. 5 This chapter has brought the social history of the Sacco-Vanzetti case down to August 3, 1927, when Governor Fuller an­ nounced that he would not intervene. During the four months considered, the issue has been more intensely argued because of the Frankfurter article, the adverse decision of the Supreme Judicial Court, and the passing of the death sentence. The effect upon society can be read in the controversy among the lawyers, in the greatly increased interest of the press, and in the many thousands of opinions from the public. The legal profession was thoroughly aroused. Powerful groups of signers presented petitions; they were answered at once by other lawyers holding the opposite view. Chief among the dis­ putants were Dean Wigmore and Professor Frankfurter. If BulIard is accurate in his understanding of the Boston bar, the great majority of its members continued adamant in their opposition to any permanent reprieve for Sacco and Vanzetti. Most liberal newspapers in the United States had something to say about the case; their editorial attitude ran from mild con­ cern over a possible injustice to vigorous denunciation of the Massachusetts judicial system and the prejudices of New England. The minority element in public opinion which spoke up for the accused was much better informed than it had been in the past, and it included a large number of persons who were impor­ tant for one reason or another. But it was still very definitely a minority. Majority public sentiment had reverted to the fearful and angry mood which was characteristic of the Red raid period. It ignored the problem of justice in the issue of life or death, and wildly demanded that the American way of life be protected from the world threat of radicalism.

Chapter X

AUGUST, 1927 ". . . a decent respect to the opinions of mankind."—The Declaration of Independence.

ι THE HIGHEST degree of public interest in this case was reached

in the twenty days before the executions. It resulted from the accumulated pressure which had developed over seven years and from a number of specific events. The chief of these were: August 3. The adverse decision of the Governor, denying clemency. August 7. The publication of the Advisory Committee report. August 10. The stay of execution forty minutes before the appointed hour. August 11 to 22. Dramatic but largely hopeless legal efforts. August 23. The executions. In this period, agitation is so general that groupings break down to a considerable degree; however it is still possible to make a general distinction among the labor-radical, journalistic, and general-public elements. Other associations of interest, such as the legal profession and the church, are almost completely out of the picture. Reference has just been made to a labor-radical group; its members were drawn together by a common course of action and place of meeting rather than by any real unity of purpose or social philosophy. Anarchist and communist appeals for a general strike paralleled the brief work stoppages by a few groups in organized labor, but there was no clear causal connection. The accidental nature of this relationship must be borne in mind especially when reading the more violent pronouncements of the communist organizations. The Daily Worker, official spokesman for the Communist Party of America, devoted many of its pages to the Sacco-Vanzetti case throughout the month of August. It maintained that "without the DAILY WORKER, Sacco and Vanzetti are left practically helpless to 272

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the mercies of the capitalist press." 1 Its news articles and edi­ torials suggest a very genuine sympathy for the condemned men, and an appropriate indignation against the operations of Massa­ chusetts justice; they are also wildly inaccurate, hysterical, and shot through with the essential spirit of yellow journalism. In reading the paper it is important to remember that it never suc­ ceeded in moving any large part of the working world. On August 6, 1927, a number of explosions took place within the United States; one was in the basement of a Philadelphia church, a second at the home of the mayor of Baltimore, and the third—two separate bombs—in stations of the New York subway.2 In no case was the cause discovered or a bomber arrested. The church explosion may have been an accident, but the other events were almost certainly acts of violence. No one knows the truth, but three conclusions may be hazarded: (1) it is very unlikely that they were the acts of provocative agents—even the stupidest and most rabid anti-Red could have sensed the danger to his own cause if his acts were revealed; (2) it is equally unlikely that the explosions resulted from the act of any individual or organization publicly known to be interested in saving Sacco and Vanzetti— the supporters of the defense were not without intelligence; (3) there is a reasonable probability that the explosions were the work of private individuals of hysterical or lunatic disposition who were instigated chiefly by internal compulsions. Cause and effect are sometimes indifferently related. The pub­ lic response to the explosions can well be imagined. The Boston Post quoted Z. R. Merritt, superintendent of transportation of the subway transit company, to the effect that "he was confident the explosions were set off in sympathy for Sacco and Vanzetti" 3 and such an assertion was more likely to attract public notice than that in the New York World: "police had been unable to throw any light upon the motive of the person or persons respon­ sible for the explosions." 4 At any rate twenty operatives were placed on duty at the Federal building in Chicago with orders to "shoot first and ask questions afterwards." 5 In Washington troops and Marines were held ready to rush to the defense of the Capitol. The stairway of the Washington monument was closed for the first time in seven years.6 Boston, of course, took no chances; The supply of riot guns at police headquarters comprises 56 shotguns, 12 Thompson sub-machine guns and 24 bullet proof vests, and ammu-

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LEGACY OF SACCO AND VANZETTI

nition for the temporary riot squad for emergencies. Perhaps some j 5,000 rounds of ammunition are now available.7 The military preparations in Boston were apparently not needed. Such crowds as did assemble were bitter but hardly vio­ lent. The sharpest clash of August 8 consisted of an exchange of opinions which would have been amusing under other circum­ stances; the adversaries were Maryt Donovan, an important mem­ ber of the Defense Committee, and Michael Crowley, Superin­ tendent of Police. He broke up a meeting: "We ought to be able to call the Governor a murderer," stormed Miss Donovan, "if Judge Thayer could call Sacco and Vanzetti —" She used an unpleasant epithet. "That isn't the sort of language a lady ought to use, Mary," re­ proved Superintendent Crowley. "It isn't the sort of language a judge ought to use, either," Miss Donovan snapped back.8 Appeals for action led to walkouts and disorder in isolated places. In Colorado a group of miners quit; out of a total of 2,000 men on the job, somewhere between 400 and 1,600 stopped work; there was no violence, and strikebreakers were not brought in.9 The Associated Press reported that the largest unified strike was in Rochester, New York, involving 16,000 assorted workers.10 The New York scene was erratic; some men were striking while others were going back to their jobs. Estimates of the number out on August 9 vary from 75,000 to 400,000. A peaceful meeting of about 10,000 took place in Union Square; it was held without trouble but 2,000 of the demonstrators decided to march on the City Hall, and this group was broken up by the police. Although only one arrest was made, there was rough business. The evidence is conclusive: a detective was taken to the hospital with a frac­ tured skull after a battle with uniformed patrolmen who failed to recognize him when he fired at a suspicious character.11 In Chicago, a sixteen-year-old girl led a group of 4,000 toward the Loop; the police used tear gas, a volley of overhead shots, and clubs while making sixty-seven arrests.12 The most complete French reports are in the columns of L'Humanite, the communist newspaper; they do not appear to be exaggerated as to matters of fact. The first large demonstra­ tion was at Lyons, where the police hit hard at a group of 10,000 on August 1.15 Three days later there was a big Paris meeting at

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275

the Cirque d'Hiver. Ten people were hurt. Jacques Duclos, a Deputy, showed his credentials: "les mouchards se jeterent sur Iui et Ie frapperent avec une violence inoui'e." 14 On August 6, the Conf£d£ration Generale du Travail Unitaire called for a twenty-four-hour general strike to be held two days later.15 Some sort of mix-up in directives led to a sort of dribbling work stop­ page; certainly not more than a few thousand were out; the American newspapers made much of the strike failure.16 It is impossible to determine what the result might have been if there had been no confusion. August 10 had come, and Sacco and Vanzetti were to die shortly after midnight. The hours passed without disturbance; perhaps society had a vague understanding that in those last moments private affection and sorrow had their place. The terrific emo­ tional shock of the reprieve came at 11:20 P.M. One of the most ironic circumstances of the whole case history is the fact that be­ tween 9:50 P.M. on August 10 and 7:05 A.M. on August n, not a single crime was recorded on the blotter of the Boston police stations.17 Wearily or frantically, but in any event with a kind of spas­ modic automatism, the labor-radical group took up once again the task of making its voice heard. First there were more explo­ sions: A bomb early today blew the roof off the $500,000 State Theatre here [in Sacramento, California] and started a fire that destroyed the build­ ing. . . . Police and technical experts of the fire department agreed today that the blaze started from an explosion. . . .18 An explosion is not synonymous with a bombing; there were no arrests, only the old ungrounded assumption. On August 15, a very different kind of act of violence took place; the house of Louis McHardy, one of the Dedham jurors, was more than half destroyed by an explosion which fortunately hurt no one seri­ ously.19 Why? A private grudge cunningly attached to an easy explanation? A fool of a sympathizer with Sacco and Vanzetti? More probably the latter. One thing is sure: the police did not mar the record on bombing outrages which they had kept vir­ tually unblemished for more than eight years—no one ever went to prison for the crime. A strike call for the New York area came on August 21; it was announced by the Sacco-Vanzetti Emergency Committee (com-

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THE LEGACY OF SACCO AND VANZETTI

munist) and the Sacco-Vanzetti International Committee (philo­ sophical anarchist); it was opposed by the Sacco-Vanzetti Libera­ tion Committee (organized labor), and by the Sacco-Vanzetti De­ fense Committee (the principal committee in Boston).20 But on the chosen day, August 22, there were no major walkouts; either the appeal had lost its force or everyone was utterly weary. There was a meeting which was quietly dispersed after two hours of speeches.21 Some sort of picnic demonstration was held in Cheswick, Penn­ sylvania, and a large number of women and children were pres­ ent. State troopers attacked and there was much bloodshed; a policeman was killed. "Rioters" were indicted but none were ever brought to trial. The story is a particularly nasty one, and while it is a minor incident in the Sacco-Vanzetti case it may serve to explain why there were so few popular demonstrations. One values one's own life even when injustice is being done. It was generally known that the average "police temper" was a good deal closer to that of Pennsylvania than that of New York City. According to the published records, more police violence, brutality, violation of civil rights, prosecutions for opinion, and corporation control of workers' lives exist in Pennsylvania today than in any other state of the Union.22 In Boston itself, jovial kidding between protestants and the police had yielded to an atmosphere of sullen wariness. At the Charlestown State Prison no less than 735 law officers of several varieties were on duty, and they were supplemented by fire com­ panies equipped with high-pressure hose.23 The worst trouble came when about 150 persons, a mixed group of liberals, radicals, and foreigners, picketed the State House in the famous "Death March." Of those rounded up, 89 were booked on charges of obstructing foot traffic, sauntering, or loitering; the names on the list are chiefly Italian or Russian.24 A detailed account of her arrests on August 21 and 22 were given by Paula Holladay in the New Republic; she seems to have tried very hard to be accurate in her story; her general conclusion is that the police were stupid in their failure to understand her actions but temperate and proper in their behavior.25 The ex­ perience of Fred E. Beall, if he is truthful, was very different. On the way along one of the policemen said: "The crowd didn't beat you up, but, O boy, wait until you get to the station." After being

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booked at the station I was taken in hand by four husky brutes. After closing the cellroom door one of the brutes said: "So you're an Ameri­ can, eh?" and delivered a right to my jaw. The others used unprintable words and continued punching me in the jaw and the stomach. . . . The next victim was treated much worse and the last one was kicked and punched so that he was unconscious. It is significant that Beall's statement is in a letter which the Bos­ ton Herald, no lover of agitators, saw fit to print on August 27. The European scene affords details of the sort one would ex­ pect. Paris demonstrations on August 22 were noisy but planless and harmless; there was, however, a deep sense of depression over the spirit of the ordinary worker. In London a crowd of about 12,000 gathered but apparently was not allowed to duplicate its August 10 march on the American Embassy.26 All through August, Russia had been stirred by officially organized meetings; a report from Moscow numbered them at 170, with 100,000 persons in attendance. The somewhat unrealistic nature of Kremlin an­ nouncements was seen in the claim of August 11: "the mighty roar of protest from the Soviet Union, together with the voice of the working classes the world over, forced even the plutocratic American bourgeoisie to hesitate and manoeuvre." 27 Here then is the record of labor, of the radical ideologies, and the political parties of the left. These groups meant well and they tried hard, but they were not impressive even in their failure. The causes of their poor showing will be examined in a later place.

2 The files of the Department of State indicate that the interna­ tional aspects of the case had been relatively inconspicuous from the time of the January 27, 1922, circular letter until the adverse decision of the Massachusetts supreme court in May of 1926. The protests then began to come in again, and the usual recognition of them was taken. On June 1, 1926, Secretary Kellogg sent a note advising precautionary measures; this went to consular offi­ cers in places where there was no diplomatic representative. On June 4, 1926, a definitive list was prepared which enumerated the countries that had seen demonstrations against the American legations, and itemized the eight bombings which had been di­ rected against these same offices since 1921. Five months later, Massachusetts officials requested that police protection be ar-

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THE LEGACY OF SACCO AND VANZETTI

ranged for Fuller while he traveled in France. Special warning telegrams were sent on April 9, 1927, the day of the sentencing. These activities are of interest but they indicate little more than the desire of the Department to play a sensible part in a period of growing tension. As the date of execution drew near, more exciting correspond­ ence was received and sent. A letter from Dean Wigmore to the Assistant Secretary of State requested a complete list of episodes of violence against the United States diplomatic and consular corps which had their origin in Sacco-Vanzetti protests. He de­ sired to keep in touch with what was happening so that, . . . when the Sacco-Vanzetti parties are disposed of, one way or the other, the attention of the American Bar can be invited to the ex­ traordinary and shocking attempt to coerce the judiciary bodies in the United States by means of world-wide acts of violence. . . .28 This is really a rather shocking request; it indicates that, to a considerable degree, the famous authority on evidence had firmly made up his mind on an opinion and then set out to obtain appropriate supporting proof. Other documents of this period included requests that the Department of Justice files be opened, an authorization for a visa to be issued to Luigi [sic] Vanzetti in order that she might visit her brother, and the advance telegraphic transmission of a personal letter from Mussolini. This last item presents an intelli­ gent view; the Italian dictator is convinced that Fuller is inclined toward clemency—if so, it would be "much more noble as it is less delayed." He feels that a delay in "the act of clemency" will give the impression that the United States has yielded to world­ wide subversive activity, with consequent damage to this coun­ try's prestige.2' A genuine difficulty was raised on August 17 with the receipt of a letter by the Department from the Defense Committee in Boston; the Committee asked how the position of the State De­ partment—that the case was not within the area of Federal inter­ est—could be reconciled with the release by the Buenos Aires embassy of a statement on the Sacco-Vanzetti affair. Information was also requested on the nature of the release and the sources on which it was based. Washington at once telegraphed Ambas­ sador Green and asked him if he had added anything to the 1922 circular letter in his desire to "enlighten public opinion."

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The reply of the Ambassador is significant; he says that the statement was published at the "urgent request of American busi­ ness community whose interests were being damaged by biased and misleading information." It appeared in the English-language papers of Argentina and in the Union Diario; "Text of original instruction Jan. 27, 1921 [sic] followed verbatim with following addition to bring down to date": The defense then made motions for a new trial on the ground of new evidence and asked for time in order to place the case squarely before the court. The hearing of these motions took place on October 1, 1923. Judge Thayer once more found no warrant in the evidence adduced which would necessitate another trial. In 1924 a further motion was denied. In November 1925 one Celestino Madeiros [.sic] a criminal in the same prison as Sacco, a confessed murderer lying in the shadow of death, admitted complicity. [End of page 1; pages 2 and 3 missing.] [Page 4.] As time is a necessary factor in this connection Governor Fuller, through a sense of justice in order to give a fair hearing, has granted a further reprieve of twelve days in order that the defense may . . . [gap in original] its case. The case has been a protracted one and every technicality of the law of Massachusetts has been made use of by the defense in order to stave off the final decision.

The Ambassador also noted that the American Society of the River Plate, backed financially by the American Chamber of Commerce, subsequently published in the Argentine press an explanation of American legal procedure, the jury-trial system, and the function of the special advisory committee appointed by the Governor.30 Four days later, on August 22, the diplomatic mail brought to Washington a full explanatory letter from Buenos Aires; it was accompanied by newspaper clippings and congratulatory letters from American businessmen. It is stated that the case was brought up to date on the basis of "an article in the New York Times, the Frankfurter Atlantic Monthly article, and Governor Fuller's own statement refusing to grant clemency." 31 In the meantime, the Secretary of State had issued "urgent and confidential" instruc­ tions to all diplomatic and consular officers: "Department of State does not desire you to make any statement regarding the SaccoVanzetti case. Kellogg." 32 The diplomatic correspondence of the United States Govern-

28ο

THE LEGACY OF SACCO AND VANZETTI

ment in the crucial period of the Sacco-Vanzetti case has a signifi­ cance beyond its concern with any specific incident. The theory which supposedly operated held that this issue was exclusively a matter for the State of Massachusetts. The function of the na­ tional government, therefore, would be merely to act as an agent for the transmittal of foreign views to the state involved, and to offer some kind of official explanation in answer to foreign queries. The theory was fine, but it didn't work. In the first place, masses of people do not make distinctions based on constitutions which operate in other countries; second, American business interests were touched by the popular agitation. In other words, the SaccoVanzetti case was not and could not be exclusively a matter of Massacliusetts criminal justice; it had developed, inevitably, ele­ ments of international political and economic importance. This situation had to be faced realistically. In terms of practical action, the Department tried to do well. It was not hostile to the convicted men, and it dutifully trans­ mitted pertinent correspondence. But there was a grave flaw in its procedure which could not be corrected as long as the "state interest" fiction was observed. This weakness developed startlingly in the bad mistake made by Ambassador Green. He meant well, no doubt, but it is clear that he did not know enough to hold an opinion or to make any statement. His addendum to the official release shows a complete ignorance of the chief contentions of the defense, and not much knowledge of the legal narrative. Unfortunately, there was no machinery available for informing him adequately. The diplomatic history of the Sacco-Vanzetti case, brief as it is, demonstrates how quickly the popular imagination of people in other lands can seize upon issues which involve the administra­ tion of justice; it also suggests the need for developing a far bet­ ter system for the detailed study and exposition of difficult cases. Once established, it would presumably not rely chiefly upon prosecuting attorneys, courts, and executive officials for its in­ formation, when those agencies of law are themselves charged with bias. 3

The law, the church, and the literary world were not deeply involved at this time, although individual members of these groups played their parts.

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The Boston papers carried notice just before the execution that a group of Rochester, New York, lawyers (names and number not stated) held "substantial legal opinion . . . that Sacco and Vanzetti have not had a fair trial." 33 These men are not known to have taken any action as members of the bar or as private citizens. On the last day, a Federal judge said to defense counsel: The only question before this court is whether these men were de­ prived of their constitutional rights. Don't tell me about the public, . . . stick to the law. I am sorry to see these two men executed, but it is a question of law, and it doesn't make any difference whether 10 persons or 10,000 persons are sorry for them.34 This judge could act only in an official capacity, and he held himself unable to be properly concerned. Also on the last day, defense counsel talked for three hours to John G. Sargent, Attor­ ney General of the United States, who was at Ludlow, Vermont. He said it was the first time he had ever understood [the relation of the U. S. Department of Justice to the case], but later announced that he would not act, that Department of Justice affairs were for the time being in the hands of his subordinates in Washington, D. C.ss Comment upon this statement would be superfluous. Briefly, the legal system could not or would not, rightly or wrongly, intervene in the ultimate phase of the case. An earlier legal opinion was dug up in England. Sir William Harcourt, many years before this case, had suggested that: The exercise of the prerogative of mercy does not depend upon princi­ ples of strict law or justice, still less does it depend upon sentiment in any way. It is a question of policy and judgment in each case and, in my opinion, a capital execution which in its circumstances creates horror and compassion for the culprit rather than a sense of indigna­ tion at his crime is a great evil.36 Defenders of Sacco and Vanzetti probably felt that it was not necessary to resort to orthodox Machiavellism but the point of view expressed indicates the beginnings of one type of historical judgment. The chief figures of the church stated their satisfaction with the decision of the Governor, now that he had had distinguished advice. Methodist bishop Anderson and Episcopal bishop Law­ rence wrote congratulatory letters to Fuller.37 Cardinal O'Con-

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nell, of the Roman Catholic hierarchy, maintained his consistent stand that the affairs of Caesar and the concern of the church should remain separate: . . . the justice of God is perfect, and in the end He and His ways, mysterious as they are, are our hope and salvation. [He stated that] . . . his position in the matter was limited to the strictly spiritual, and that he so confined himself in his assurances of sympathy.38 Among the writers, Dos Passos continued active. On August 9, he addressed an open letter to Fuller in which he protested, as a Harvard man, against the star-chamber nature of the hearings held before the president of his university. He also warns of the danger inherent in the handling of the case: The published report has confirmed our worst forebodings. With in­ conceivable levity you counsel the electrocution of two men because it "seems" to you that the enormous mass of evidence piled up by the defense in seven years' heart-breaking work should be dismissed. . . . The report in its entirety is an apology for the conduct of the trial rather than an impartial investigation. . . . It is upon men of your class and position that will rest the inevita­ ble decision as to whether the coming struggle for the reorganization of society shall be bloodless and fertile or inconceivably bloody and destructive.39 On the last day, Edna St. Vincent Millay's "Justice Denied in Massachusetts" had its first printing in the New York World; and on that same day Fuller gave the poet a private interview of some length.40 Earlier in the month, one of the really fine poems relating to the case had been printed in two magazines rather remote from the reading ken of the average New Englander. The verses are Brent Dow Allinson's "For the Honor of Massachusetts," and they appeared in the Locomotive Engineers Journal and La Follette's Magazine. Several writers took part in picketing and public meetings. Dos Passos, Millay, Lola Ridge, Dorothy Parker, and others were hustled off to police stations; their names were well known and thus was established the inaccurate tradition that the demonstra­ tions were moved and dominated by unrealistic Bohemianism. This is not true; only a few writers were active; those who did participate were intelligent, practical, and thoroughly aware of their civil rights.

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4 Millions of words about the Sacco-Vanzetti case were printed by the newspapers and magazines of the world during the month of August. Much of this material, however, repeats itself or deals only with the day-to-day story; a sampling of representative items can indicate with some accuracy the attitude of the press. The chief points of interest are the effectiveness of the news-gathering process, and the differences of opinion from one extreme to the other. Some consolation may be had in the observation that through­ out this period of intense social stress there was virtually no cen­ sorship upon matters of fact. Felicani, of the Defense Committee, was for a while denied entry to the prison because he published "blue-penciled" portions of letters by Vanzetti.41 But this was really a legal issue; the warden was charged with the deletion of violent personal remarks, as a matter of prison regulation; Feli­ cani deliberately tested the Tightness of the ruling, and he could not create the circumstances of such a test without breaking his word. And this relatively minor occurrence was the only open conflict. In their slanting of the news, and in the preservation of some sense of balance, the newspapers did moderately well. The Boston Evening Transcript, on August 4 and 5, printed a large number of letters relating to Fuller's decision. Both sides were repre­ sented. The New York Herald Tribune, in commenting on the first set of explosions, dissociated the acts of violence from the question of injustice."2 Later, the Transcript slipped. It adroitly mixed articles and large pictures on the McHardy bombing with other articles on the hearings before the supreme court.43 The Boston Post gave dramatic treatment to both sides of the case. Its August 22 headline read "13 Jurists Have Sat on Phases of Sacco Case"; also on the front page was a letter of doubt, origi­ nally printed in the London Times, and now reproduced in 12point type. The same paper, in reporting the execution of Vanzetti, sympathetically emphasized the fact that "It was the first time in the history of the prison that a man in the death chamber has stopped before death to shake hands with the warden." 44 Both in the quality and volume of their material the American newspapers performed their public duty adequately. The same is

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generally true of the British and French papers; in Paris, it has been observed, the leading dailies gave four times as much space on August 5 to the Sacco-Vanzetti case as they did to the break-up of the Geneva Naval Conference, and their emphasis was by no means exclusively sensational.45 The chief editorial condemnation of Sacco and Vanzetti in Boston had come from the Evening Transcript; now, with the case "on ice" it moderated its tone and was content to let matters take their course. The only important contribution from this paper came on August 9 and 10 when it printed lengthy articles on the unofficial ballistic tests made by Goddard on June 3; it gave defense counsel Thompson equal prominence of position in his reply. The most significant expression of satisfaction was that of the Boston Herald, which had printed the "We Submit" editorial nine months before. On August 4, it said: "We are glad . . . that the decision [of die Advisory Committee] is unanimous, and by it we, with entire confidence, are ready to abide." With the actual publication of the advisory report, the Herald added: Most of the serious and earnest minded people who had misgivings . . . have had these dissipated by the calm and dispassionate recital of the evidences by President Lowell and his associates. . . . Whole­ some minded public opinion of the community is now acquiescent in the conclusion, and is ready to have the law proceed on its course. . . ." 4β The Herald had entire right to its opinion on the report; but it was either blind, guilty of wishful thinking, or dishonest in its statement that doubts had been removed. Editorial policy in this same paper had by the middle of the month relegated Sacco-Vanzetti news to the inner pages. Superin­ tendent of Police Crowley congratulated the Herald on this pro­ cedure; he pointed out that journalistic overemphasis had led to New Englanders being afraid to come into Boston on shopping trips.47 The stupidity of such an opinion tempts one to thrust reason aside and to accept on an emotional basis Vanzetti's belief that the propertied interests and the "capitalist press" are united in unbreakable solidarity. Elsewhere, the holders of an antidefense attitude continue in established vein; the Chicago Tribune gave a slurring and inac-

AUGUST, 1927

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curate report on the agitation, and also managed to drag in the Bolsheviks.48 European press sentiment was so consistently on the other side of the fence that it is difficult to find hostile views. One of some weight appeared in the London Outlook of August 20; the writer was Allen Raymond, London correspondent of the New York Times. He characterized Vanzetti as a noble martyr and Thayer as a brave judge. He has a natural sympathy for the convicted men but believes they had a fair trial. Even if they are innocent: "men who set themselves up as open foes of all their communities hold dear have no right to complain when the communities turn upon them and rend them. It is a fate they have courted. . . ." 49 Ray­ mond apparently is unaware of the point so strongly made by Professor Llewellyn, that an intemperate and unjust community judgment is chiefly harmful to society itself. When one seeks newspaper opinion occupying a middle ground, the most typical comments are to be found in the New York Herald Tribune and the New York Times. The Times felt that Fuller had acted responsibly, but "Far more serious is the hurt to humane feeling, and the doubt which will persist in can­ did minds whether the ends of justice could not better have been obtained in some other way." 50 Its competitor said: "It is evident that the decision has not wholly blotted out the impression that political views have colored their fate." 51 The publication of the Advisory Committee report did not greatly modify the stands previously taken by these two papers. Whether these innocuous statements reflect indifference, caginess, weariness, timidity, pseudo-Olympianism—or careful study, dispassionate judgment, and honest opinion—is primarily a problem for the historian of Ameri­ can journalism. That section of the press which was attempting to win commu­ tation of sentence, as a minimum palliative, was of course much more vocal. It had a case to make. The St. Louis Post-Dispatch issued a strong "Appeal to Mr. Coolidge." 62 The reason for such a step is not too clear; one did not have to know much about "cautious Cal" to foresee the blank silence with which such a suggestion would be received. The New Republic was deeply worried over the weaknesses of the Advisory Committee, and out­ raged by Thayer's willingness to rule on his own prejudice: "He must have known, if he is capable of thought at all, that no man is competent to pass upon the question of his own prejudice." "

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The magazine also pointed out that in the English case of Adolph Beck the commission of inquiry—three in number—included two distinguished judges. The Springfield Republican continued its unremitting and powerful analysis of the case; even to the point where enraged opponents suggested that the editor had received a fee of $20,000 for his campaign. But the Republican stood alone in Massachu­ setts.54 The most elaborate and frequent consideration was in the Pulitzer paper, the New York World; Walter Lippmann was its chief editorial writer. In a period of seventeen days it ran eleven editorials on the case. The development from one editorial to the next is very interesting. August 5: doubt exists. August 6: the existence of doubt suggests the desirability of mercy. August 9: Thayer's sitting on his own prejudice is open to suspicion under the "due process" clause. August 10: mercy is asked for again. August 11: commutation is desirable as a matter of public policy. August 12: commutation would be insurance against irrevocable error. August 13: an attack on bombers and the communist ele­ ment. August 17: a sense of outrage at the McHardy bombing. August 19: "Doubts That Will Not Down." August 20: exaspera­ tion at the latest supreme-court ruling. August 22: "It Is Not Too Late." The August 6 editorial addressed itself to Fuller: We plead with him to moderate the sentence as an act of wise mercy out of respect for a very important part of the opinion of mankind . . . a very weighty body of instructed opinion which is not altogether convinced. "Doubts That Will Not Down" was an editorial of several thou­ sand words occupying the entire editorial page. It also speaks to Fuller: The Sacco-Vanzetti case is clouded and obscure. It is full of doubt. The fairness of the trial raises doubt. The evidence raises doubt. The inadequate review of the case raises doubt. The Governor's inquiry has not appeased these doubts. The report of his advisory Committee has not settled these doubts. Everywhere there is doubt so deep, so pervasive, so unsettling that it cannot be ignored. No man, we sub­ mit, should be put to death where so much doubt exists. . . . Stay the execution. Wait. The honor of an American Common­ wealth is in your hands. Listen, and do not put an irrevocable end

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upon a case that is so full of doubt. It is human to err, and it is possi­ ble in the sight of God that the whole truth is not yet known. So spoke the official editorial voice of the World. Heywood Broun, the paper's famous columnist, had a different view and used another kind of language. 5 Heywood Broun had been on the World staff for a number of years; his columns had won him a very wide reading public be­ cause they so clearly displayed his own personality. He was gen­ erous and warm-hearted, sensitive yet humorous, and fundamen­ tally spiritual. He was not, as has been charged, "an ardent Har­ vard patriot . . . deeply chagrined";55 the Sacco-Vanzetti case struck directly at his sense of humility. Therefore he spoke wrathfully." On August 5, he observed that this case did not spring from an exceptional trial; the hostility toward Sacco and Vanzetti was simply proof that all power is angry when challenged. Thayer and Fuller are not evil men: "To me the tragedy of the conviction . . . lies in the fact that this was not a deed done by crooks and knaves." The question of the fairness of the trial is interesting "but I still think it is a minor phase of the whole matter," because the trial "is no more biased than a thousand which take place in this country every year." Goodridge's lies and Proctor's repentedof duplicity are not unusual. As for Katzmann: "Our judicial processes are so arranged that it is to the advantage of District Attorneys to secure convictions rather than to ascertain justice, and if it would profit his case, there is not one who would not stoop to confuse the issue in the minds of jurymen." This, says Broun, is not a case of railroading: "This is a thing done cold­ bloodedly and with deliberation." The following day's column finds bias in the Fuller decision and the Committee report. He continues: I am afraid there is no question that a vast majority of the voters in the Bay State want to see the condemned men die. I don't know why. Clearly it depends upon no careful examination of the evidence. Mostly the feeling rests upon the fact that Sacco and Vanzetti are radi­ cals and that they are foreigners. Also the backbone of Massachusetts, such as it is, happens to be up because of criticism beyond the borders

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of the State. "This is only our business," say the citizens of the Com­ monwealth, and they are very wrong. . . . From now on, I want to know, will the institution of learning in Cambridge which once we called Harvard be known as Hangman's House. The curious mixture of fact and exaggeration in these remarks is essentially the union of Broun's intellect and heart; he was accurate in his analysis of the social pattern, and then went on to his universal damnation of all district attorneys and his anathema upon Lowell. The result was that on August 12 there appeared a statement by the publisher, Ralph Pulitzer; he said that the World had printed two letters by Broun "in which he expressed his per­ sonal opinion with the utmost extravagance," and that the col­ umnist was then instructed to select other subjects. Broun had not done so, and consequently all subsequent articles submitted by him had been omitted. Last statements from Broun and Pulitzer appeared on August 17. Broun claimed that his manner of writing was deliberately chosen. "I felt and I feel passionately about the issue. The men were not yet dead. I was not simply trying to keep my own record straight. That's not good enough." He cites the case of Pilate, and adds, "There is no vigor in expressing an opinion and then washing your hands. He says the World objected to his "manners and . . . method of controversy," because they wanted to deal gently and get a life sentence. The paper was also worried over the bomb outrages, and properly so, "but in spite of silly crimes of violence I felt and feel that the most tragic factor of the SaccoVanzetti case is the general apathy." And so: "In farewell to the paper I can only say that in its relations to me it was fair, generous and gallant. But that doesn't go for the Sacco-Vanzetti case." Pulitzer correctly states that no issue of censorship was involved; it was a matter of conflict between the sincere principle of the publisher and that of the writer. And the World felt that Broun's "unmeasured invective" was inflammatory, and likely to "encour­ age those revolutionists who care nothing for the fate of Sacco and Vanzetti, nor for the vindication of justice, but are using this case as a vehicle for their propaganda." Broun did not in fact leave the paper until May of 1928. He was then fired because he wrote elsewhere: . . . the World on numerous occasions has been able to take two, three, or even four different stands with precisely the same material

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in hand. So constant were the shifts during the Sacco-Vanzetti case that the paper seemed like an old car going up hill. The Broun dispute is of much greater significance than the sum of its details. What one really has here is strong evidence that a man whose ethical sense—perhaps even his spiritual naturewas outraged could not, as things then stood, find a place where he might speak naturally. Therefore, under the pressure of his discomfort in a society to which he felt an instinctive antagonism, he spoke with less than perfect wisdom.

6 Foreign expressions of sympathy or concern are on the whole temperate. London papers did not always think the problem through very thoroughly. The Times separates the question of justice from other interests which are "avowedly political, irrele­ vant and utterly mischievous"; then, with poor logic, it unites the case to the current bombings by saying that "the outrages of the last few days have served to weaken immeasurably the cause for a reprieve on the grounds of humaility. . . ." It stated that: "What caught the imagination of the public in every country is not the rights and wrongs of the trial, but the fact that any man should be kept so long in such suspense." 57 The Daily News, immediately after the August 10 reprieve, said ". . . end the tragic farce, . . ." and rebuked ". . . a crimi­ nal system so rigid and stiff in its pedantry that its tender mercies are worse than the excesses of barbarism." 58 H. N. Brailsford in the New Leader (Independent Labour Party) is interested in the causes of New England social inflexi­ bility: When an institution must be saved by human sacrifices, one is apt to think that it is doomed. American justice has come to be the ultimate bulwark of American Capitalism. One asks whether anything is left of its tradition of intellectual integrity. The drama of such an aifair as this will make "radicals" where volumes of economic argument would fail.59 A broader but less specific warning is given by the London Nation; it said that the reputation of America in Europe would be affected for a long, long time.60 Observations of this quasi-

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historical nature have some significance for persons interested in the nuances of intercultural relations. The Continental newspapers also present rather simple opin­ ion, if one excepts those of the extreme left which, as the World put it, used the case as a "vehicle." The Journal de Geneve, rather surprisingly, raised the alien issue. It is inconceivable that they could have been treated as they have been if they had been American citizens. Public opinion would not have allowed it. But it is unfortunately too true that in America the poor emigrants are often considered as human beings of the second class.61 Unless it had some special ax to grind, it would appear that this paper was well behind the times; the issue of the alien had long since been submerged in the much more violent one of the radical. The right wing of the Paris press is practical and conciliatory to'American sentiment: Liberte believes that "When one seeks alliances, when one wishes credit, when one desires peace, one ought not to exhibit cries of hysteria in the face of the entire world." 62 L'lntransigeant advises that each sovereignty be allowed to administer its own law, and is of the opinion that America will misunderstand French gestures of pity.63 Le Temps took the mildest possible position of support for the defense; "We wish to see the lives of these men spared, whether they are innocent or guilty, because we think that they have suffered enough in these seven years of nightmare. But we do not wish to go further than that." 64 Spain was an interesting phenomenon. Its government pursued the policy of intellectual counterrevolution which has marked its statesmanship through most of the last four hundred years. "News concerning the case and comments upon it have absolutely been prohibited by the censorship . . ."; the Madrid Socialista suf­ fered an eight-day suspension for publishing a brief telegram mentioning the case.65 Italy, of course, was in a paradoxical position. The accused were Italians and that fact called for the traditional display of fire­ works; also Vanzetti was from the north and Sacco from the south, which certainly suggested the likely value of a statement from Rome, as a matter of internal policy. First there was official silence; then with a jerk the Tribuna spoke up on August 4: ". . . this tragic mockery which for seven years has tortured the spirit of our two unfortunate compatriots . . . the execution of

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the two defendants or the postponement of the execution con­ cludes shamefully one of the blackest judicial events that man can recall." 66 Lamentably, Sacco and Vanzetti were also anarchists. Consequently, the editorial just cited was withdrawn in later editions of the same day. By August 9, Mussolini had formulated a sufficiently vague statement to suit his mixed needs. He wrote to Sacco's father in these terms: "I desire to communicate to you that for a long time, and assiduously, I have occupied myself with the Sacco-Vanzetti case, and I have done everything compatible with international rules to save them from execution." 67 A little more latitude was allowed in press statements. Il Tevere was permitted to refer to the "nameless agony [which] agitates the hearts of millions," and the Messagero said that "a justice which strikes coldly in the face of judicial error and after arousing hopes in the breasts of the condemned is atrocious." 68 7

Public opinion, in 1927, was not as conscious of its own signifi­ cance and power as it has since become. When it spoke, it there­ fore had genuineness; but, at the same time, it was not the object of any scientific curiosity or study. One must therefore work with fragmentary indications. Bullard's estimate of the division of opinion among the Boston lawyers has been cited: 80 to 90 per cent in favor of carrying out the sentences, 10 to 20 per cent opposed. At the same time he reported a rumor that the Harvard Law School faculty was nine for the men and three against. The larger group is almost cer­ tainly the more representative of opinion in the last three weeks of the case. The Transcript reported on August 8 that up to that date twenty per cent of the telegrams and only one per cent of the letters received at the governor's office had urged commutation. It emphasized this distribution of opinion because of the sus­ picious alignment on that day's influx; 64 letters or wires were against commutation, and no less than 89 urged mercy. Of the group of 89, 24 were cables from abroad, and all but 2 of the 31 domestic telegrams were from outside Massachusetts. In other words the newspaper was stressing the "foreign" nature of inter­ ventionist opinion. By August 14, the letters printed in the Herald are running

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THE LEGACY OF SACCO AND VANZETTI

nine to one in support of Fuller. On the last day sympathizers made a great effort; they sent 600 of the 900 telegrams received.®" There are other numerical evidences of the nature of popular sentiment. In Milton, where juror McHardy's home had been destroyed by a bomb, a strong protest was made by the 242 mem­ bers of the American Legion post; 42 of the organization's mem­ bers were sworn in as a special police squad and equipped with riot guns.70 But there was also strong feeling of an opposite type. A prominent Boston politician found his conscience troubled by the conduct of the case; he used his sources of information among conservative circles to full advantage, and then reported secretly to the Defense Committee.'1 A few of the statements in favor of reprieve are interesting enough to merit individual notice. Immediately after the an­ nouncement of Fuller's decision, the executive committee of the American Civil Liberties Union wrote at length to him; no new points were raised, and there is no evidence that the letter pro­ duced any effect.72 The day before the planned execution of August 10, Henry Ford made a statement which lost much of its force because stress fell upon the author's general objection to capital punishment.73 Earlier in the century Benjamin R. Tucker had established his position as chief among the theoretical writers on anarchism in the United States; his nature and his writings had much of Thoreau and Emerson about them. He was a man of modest wealth and had now lived for many years in Europe. He wrote to Fuller on August 12; he stated that he had not seen the record and had no opinion on the question of guilt; his interest was solely in the verdict as a social instrument: . . . the object of a UNANIMOUS jury verdict . . . is to secure the innocent by such an administration of justice as will reflect VIRTU­ ALLY the opinion of the ENTIRE community involved. If such a ver­ dict chances to fail in securing this end, it is not only futile; it is pernicious in the extreme. Now, sir, it must be obvious to you by this time that no verdict has ever more signally failed in this respect than the Sacco-Vanzetti verdict. . . . SET THESE TWO MEN FREE. It MAY be a choice of evils, but by all means choose that which is incom­ parably the lesser. . . . Mere justice, sir, is not a sacred thing. There is nothing more stupid than the saying: "Let justice be done, though the heavens fall." Is it not the very purpose of justice to keep the heavens in their proper place? If they are to fall as a result of justice,

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then justice had better be abandoned. All things are relative, Sir; I beg you to beware of the absolute.74 At first glance this reads like a kind of good-natured oppor­ tunism. In fact, it is a subtle interweaving of Socratic ethics, Proudhon, and a thoroughly modern exploration of the processes of social thought. The impact of Tucker's letter upon Massachusetts was probably as forceless as that of all the other general protests. An expatriate anarchist, right or wrong, would not be listened to. As Kathleen Millay said at this time: "New England as a whole hates the rest of the United States. And New England is the stubbornest place in the world. The real New EngIander never admits he is wrong." 75 Well, this is perhaps not quite fair; wherever it may reign, incensed provincialism admits no criticism. The farther one gets from Boston in August, 1927, the more likely one is to find a preponderant sympathy or doubt. Thus, on several days in this month, the majority of the letters in the Hera'ld, Tribune sound a note of grave fear that justice may be miscarry­ ing. And there was also the inevitable pathetic lunacy: a middleaged woman, teacher of Senate pages and a Capitol guide, was suspended because she protested and offered to be electrocuted in the place of the condemned.76 The liberal intellectuals made a final effort to influence the authorities. The Citizens' National Committee was organized and a letter was sent out to a large number of prominent persons. Among those signing the appeal were Jane Addams, J. M. Cattell, John S. Codman, Waldo Cook, John Dewey, Mrs. J. Malcolm Forbes, Arthur Garfield Hayes, W. E. Hocking, Oswald Garrison Villard, Marian P. Whitney, and Mary E. Woolley. The moving spirits were Paul Kellogg, editor of Survey, and Robert M. Lovett. More than 500 persons joined in a letter to Fuller: To keep that door open we join with other responsible men and women, believers in America, in an eleventh hour plea to you for commutation of sentence or stay of execution until all doubts are resolved and justice achieved. When the petition was presented, the representatives of the signers were shown the Advisory Committee report; they answered that they had read it and were not convinced; then:

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LEGACY OF SACCO AND VANZETTI

We were confronted with the statement that all the facts could not be made public. And for one, I [Kellogg] came away with the clear indi­ cation that the Governor rested his verdict on assertions made to him in secret, which the defense had no means of knowing or challenging.77 On the other side of the issue, supporting Fuller and the judg­ ment of the courts, there are many hundreds of available state­ ments. One group of letters and telegrams is of particular interest because it frankly recognized the political implications: Heartiest congratulations for your decision. Hope to cast my presi­ dential vote for you. You have redeemed a waning faith in our institutions by a single outstanding act of this century in our history. Congratulations to our future President, the 100 per cent American, who has the courage of his convictions. You and Calvin Coolidge have shifted the training ground of our Presidents from Ohio to Massachusetts. I am for Calvin Coolidge as long as he lives, after Calvin Coolidge I am for you. You have cour­ age; since the introduction of the direct primary, most politicians lack courage.78 Another correspondent was Michael J. Dwyer who had once been district attorney of Suffolk County; he was at this time a priest. He said: "It is simply inconceivable to me that any man could be condemned to death in Massachusetts except after a thoroughly fair and impartial trial." 79 Father Dwyer did not give his reason for thinking that his state possessed a capacity for per­ fect justice beyond that ever achieved at any time in any other human jurisdiction. His observation is really very significant; it indicates how completely some men lost their sense of historical perspective. Cardinal' O'Connell, with his reference to the "mys­ terious ways of God," was both a better priest and a more diplo­ matic authoritarian. G. W. Wardner wrote a letter to the Boston Herald which has classic force because of the author's skill in wrapping up in one package all the major contentions which the defense either denied as true or rejected as irrelevant. Probably not in all the annals of criminal history has any convicted person evaded the carrying out of sentence for as long a time as the now world-famous Sacco and Vanzetti. Found guilty of murder in a scrupulously fair trial and this guilt confirmed by an utterly impartial

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and thoroughly exhaustive investigation by the Governor and a com­ mittee of three other distinguished persons of the highest repute . . . The vvhole aifair is in imminent danger of approaching a disgraceful fiasco with the sorry spectacle held up to the world of the sovereign state of Massachusetts powerless to enforce her own laws in the face of an impudent gang of alien anarchists and reds carrying out a world­ wide campaign of sabotage, terrorism and intimidation on behalf of two condemned men.80 If such was the verdict of the majority in the court of public opinion, Sacco and Vanzetti may have felt in some degree con­ soled by the fact that they had been tried before a judge who confined himself to childish profanities. And there is plenty of evidence that the Wardner letter was in harmony with the view of a vast number of Americans all over the country. Senator Borah, who rightly enjoyed a reputation for learning and sobri­ ety, was of like mind; he stated his willingness to assist the Citi­ zens' National Committee in testing the question of innocence or the fairness of the trial; But it would be a national humiliation, a shameless, cowardly com­ promise of national courage, to pay the slightest attention to foreign protests or mob protests at home. . . . This foreign interference is an impudent and wilful challenge to our sense of decency and ought to be dealt with accordingly.81 Borah was right and wrong. Of course the questions of innocence and the conduct of the trial were or should have been the main issue; of course a resolute stand had to be taken against foreign or domestic "mob" protests; what he failed to face candidly was the fact that a large element in the protesting body was sober, and thoughtful, and moved by grave doubt, and that it found itself raising its voice because the ordinary procedures for arriving at a just decision had seemed to fail. And as a politician of long ex­ perience the senator must have known how his words would support the position of less temperate men, ready "if need be for the manhood of America, embattled and fearless, to stand in de­ fense of American institutions with the unsheathed bayonet and the machine gun to protect them." 82 Scrme of the angry spirit even came close to assuming the form of physical threats; William Schuyler Jackson, former attorney general of the state of New York and at the moment of defense counsel, sought a plane in order to make a hurried trip; a naval officer ordered him off the

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airport grounds with the observation that "it would give me pleasure to shoot you." 83 The motives which lay back of foreign protests have been ex­ amined; the demonstrations need only be listed.84 In France there were disturbances in Paris, Cherbourg, Nantes, and Marseilles. London, on August 9, had a very small subway explosion which the police ascribed to a practical joker. The American embassy in Bucharest had a petition forced upon it by a crowd which the local police were unable to hold off. Fifteen thousand met and protested in Sweden. Casablanca saw the burning of an American flag. Argentina heard a call for a general strike; the Uruguayan Chamber of Deputies formally asked President Coolidge to inter­ vene. All of these expressions of opinion suggest something more than mere routine displays of proletarian solidarity—and some­ thing less than the beginnings of world revolution. Comments in the foreign press are less elaborate after the August 10 stay of execution; there was not much more to say. An elderly and sick Dreyfus called on his strength to warn that execution "would be the greatest moral disaster of many years, fraught with terrible consequences to American justice." 88 The New Statesman, of London, went all the way: The conduct of the trial . . . was unfair to a point beyond belief . . . the trial resolved itself into a perfectly simple and straightfor­ ward appeal to racial and political prejudice . . . the most obvious and indefensible miscarriage of justice that has ever occurred in any modern civilized country.86 One can feel some sympathy for those who were irritated by such vapid name-calling as that in the British journal.

8 The last three weeks before the executions produced phenom­ ena of social tension quite in keeping with the long period of development which had led up to this point of climax. There were sporadic acts of violence, and these were met by the armed pro­ tective forces of society. A police system on the alert often goes off with unexpected and indiscriminate brutality; several persons were victims of this type of tension. Labor was demonstrative but accomplished nothing that would help Sacco and Vanzetti. Radicals and political groups of the left

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attracted much attention, but their importance as critical irri­ tants was probably growing for reasons unrelated to this case. The legal profession had retreated. As an institution it had discovered that it could not make itself heard upon this issue ex­ cept through its established channels of technical procedure. Of chief interest are the opinions of the press and the general public. The Springfield Republican carried on the fight for the condemned men to the very end; the Boston Herald again re­ versed its stand on the issue, with the publication of the Gover­ nor's decision. The mild doubts of the New York World became overwhelming in August, and the newspaper carried on a full-scale campaign for a commutation of sentence. Heywood Broun, its columnist, was so personally outraged by the circumstances of the case that the publisher cut him off after he had made two sharp attacks upon the Massachusetts authorities. Public opinion cannot be characterized with any high degree of statistical accuracy; nevertheless its general quality is perfectly obvious. Probably eighty per cent of the citizens of Massachusetts desired to have the men executed. However, it is likely that a majority of the intellectual men in that state would have been happy to hear of commutation. And the farther one gets from the center of the turmoil, the less powerful is the demand that the sentence of the law shall be carried out. The conflict within society over the case developed character­ istic fears and hatreds. The unfortunate result in this particular situation was that fear for the safety of the established order led to hatred of that order's critics, and finally to a belief that the exercise of mercy would indicate a strategic defeat. Most adults in Massachusetts were convinced that the granting of life to Sacco and Vanzetti would be an irreparable blow to the prestige of the Commonwealth.

Chapter X I

T H E GOVERNOR A N D HIS COMMITTEE M. . . the real object of criminal procedure, the conviction of the largest possible proportion of guilty men that is compatible with the certainty of acquittal of the innocent."—ABBOTT LAWRENCE LOWELL, Harvard 'Law Review, 11:297 (December,

>897)· 1 THE HISTORY of this case has now been brought down to the date

of execution. Before continuing with the story, it will be useful to examine closely the part played by Governor Fuller and his advisory committee. Here was a new type of social instrument created to meet a very special need. The executive authority of Massachusetts did not have much precedent for its guidance, and, once established, the committee was not subject to well-defined procedural rules. This opportunity for flexibility could offer hope to Sacco and Vanzetti or it could spell their doom. Let us see what happened. The Governor was charged by law with the responsibility of acting upon petitions for executive clemency; he alone could give an official decision. It is true that a recommendation for mercy by him would have to be approved by his council, but it is hardly likely that they would have refused him if he had so determined. On the other hand, if his decision was adverse to the condemned, that was the end of it. The case came before him on May 3, with Vanzetti's petition, He had several choices of action before him; he could reject the plea at once, he could study the case with care, or he could ask for advisory assistance. Fuller elected to begin at once a full-scale private review of the case; through most of May he was so en­ gaged. By the end of the month he had also decided to call for advisory assistance; there is no evidence to indicate how early he decided upon this supplementary procedure; he may have in­ tended to make use of it from the beginning or he may have been led to it by the many important groups and persons urging 298

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such action. He should certainly be given credit for the appoint­ ment of a commission in the face of heavy opposition to such a procedure by the legislature of the state; the Massachusetts house, on April 14, 1927, defeated a resolution calling for a com­ mission, by the overwhelming vote of 146 to 6. Alvan Fuller had risen rapidly in the business world and was at this time a man of great wealth with a fortune of many millions of dollars. This fact made him at once suspect by the radical groups. Actually, after his entry into politics, the one principle about which he was most vocal was the separation of moneyed power and government. He is open to enough unfavorable criti­ cism without the bringing of untrue charges. He did not, for instance, seem to have any real understanding of his democratic electorate; there was more than a touch of paternalism in his make-up. He was also guilty of an inconsistency which cannot be satisfactorily explained. In 1919 he had attacked the radicals in typical demagogic language; now, on August 1, he told members of the Defense Committee that he could not hold prejudice against radicals because he did not even know what anarchists, socialists, and communists were.1 Either his memory, his educa­ tion, or his sense of veracity was defective. Some of the defenders of Sacco and Vanzetti knew Fuller and thought well of him. On three occasions in May, John Haynes Holmes testified to his confidence in the Governor: I am sorry that you do not have faith in Governor Fuller, especially as my faith burns as strongly as ever. . . . My faith in the Governor is as firm as ever. . . . There remains my knowledge of the man from many years' ac­ quaintance. I absolutely believe that he will pardon Sacco and Vanzetti if he really gets the facts. Right there is the whole issue—is he talking with the right people and being allowed to know things as they are? 2 Fiorello La Guardia was even more emphatic: . . . he is free from bigotry and prejudice and will investigate fairly and fully. There is no prejudice in his makeup. I so judge from my knowledge of him in Congress.3 This is a curious statement; La Guardia must have forgotten Fuller's remarks on Berger and the Reds.

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But Fuller in 1927 may have been a wiser man. Vanzetti, in their prison interviews, found him sober, thoughtful, and courte­ ous. The Governor conducted his personal investigation in strict secrecy; it is hard to see how he could have done otherwise; if he had thrown the door open, he would have needed the complete paraphernalia of a court of law. He might, however, have per­ mitted a representative of the defense counsel to work with him. Co-operation of that sort would have saved him from the rumors which a silent inquiry were bound to engender. It might also have prevented leaks. One of these was rather serious. He talked to Rose Sacco and told her that attorney Vahey had given him assur­ ance of his desire that Vanzetti take the stand at the Plymouth trial—and that Vanzetti had refused. News of this got out, and it was in flat and unexplained contradiction of the defense claims.4 One handicap under which the Governor worked was the fact that he had selected assistants who were by temperament not well adapted to so tense a situation. His secretary, Herman A. MacDonald, handled the lines of communication between the Governor and the numerous representatives of the defense. And this was the man who charged Waldo Cook, editor of the Spring­ field Republican, with having accepted a $20,000 fee. Throughout the proceedings MacDonald was hostile in manner to the Defense Committee. When, in 1925, the letter from the members of the British House of Commons was placed in his hands by a news­ paperman, he is reported to have made unpleasant remarks about Sacco and Vanzetti, and to have indicated that petitions on their behalf did not receive much respect. He is also said to have ob­ served that Sacco and Vanzetti might, upon gaining their free­ dom, settle in a respectable New England community and become near neighbors to the journalist.5 The Governor's private counsel was more circumspect but equally bitter. Joseph A. Wiggin particularly charged that Frank­ furter had been in the employ of the Defense Committee for many years; he was one of the persons who refused to contribute to the Harvard Law School endowment drive unless Frankfurter was removed from the faculty.6 It should be noted that this information about MacDonald and Wiggin comes from the Defense Committee Bulletin, and there­ fore from a prejudiced source. But it is a historical fact that these

THE GOVERNOR AND HIS COMMITTEE

3ΟΙ

charges were printed and circulated, and were not challenged by a libel suit in a court of law. The Governor's investigation continued for more than two months. His decision was announced on August 3, and the coin­ cidence of this date with Coolidge's declaration that he did "not choose to run" has been made much of. Briefly, the theory of those who impugn Fuller runs this way: (1) he was inclined to commutation, (2) on the other hand, his political ambitions led him to believe that he could win popular approval by standing for law and order as Coolidge had done in the police strike, (3) Coolidge's withdrawal from politics enhanced his own presiden­ tial chances, (4) he therefore chose, for political reasons, to uphold the verdict, and sent the men to their death. This is a very serious accusation which is supported mainly by the force of coincidence.7 And it should be rejected once and for all on the ground that Fuller had already in several ways indicated that his decision would be adverse. Of the nature of the Governor's official document not much need be said. It is dogmatic and offers conclusions rather than proofs or lines of analysis; that is not necessarily a defect. It is in error on several important points but these errors are generally duplicated in the Advisory Committee report and can be consid­ ered more effectively in that document. Its worst feature was the reference to "the particularly brutal" crime, an emphasis which, as Broun noted, was irrelevant to the question of guilt.

2 The Advisory Committee was appointed by the Governor on June 1; it presumably studied the record between that date and the opening of hearings on July 11; the hearings ended on July 25; the report was signed on July 27 and made public on August 6. Such a committee was a perfectly proper device despite the opinion of Registrar of Motor Vehicles Goodwin that it "would be a direct attack on the judiciary of this great old Common­ wealth." 8 Goodwin, of course, was playing politics; he, himself, had already attacked the Massachusetts courts eleven times, and only a year before had said: "It is necessary to limit the discretion­ ary power of the courts. It is a well-known fact in Massachusetts today that practically nobody with money is put in jail." 9 The need for the wisest possible kind of executive consideration

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was as obvious as its legality. The court system which had pro­ duced the doubtful wisdom of a single judge in capital cases was relatively new. Professor Hocking had proved this: from 1641 to 1872 such cases were tried before a quorum, four members, of the Supreme Judicial Court; from 1872 to 1891, before two mem­ bers; from 1891 to 1894, before three judges of the Superior Court; and from 1894 to 1910, before two judges of the Superior Court. It was only in 1910 that the judicial system had been changed to provide one judge of the Superior Court and limita­ tion of appellate review to "a matter of law apparent upon the record." 10 In the two-hundred-and-eighty-year history of the Mas­ sachusetts judicial system, Sacco and Vanzetti could have been brought before Thayer, and Thayer alone, only during the last eleven years. Roscoe Pound, Dean of the Harvard Law School, answered Goodwin directly: What is revolutionary and un-American is the new doctrine that pub­ lic opinion is not to be invoked in cases calling for executive action, that the machinery of justice is held to be infallible and beyond ques­ tion, and that it is better that persons, who are for other reasons obnoxious, be executed for crimes they did not commit than that it be admitted that an official error may have been made.11 Fuller considered a number of persons. His final choice fell upon Samuel W. Stratton, Robert A. Grant, and A. Lawrence Lowell. Since we are dealing with this case as a social phenomenon it is entirely proper that the quality of these men, as members of society, be reviewed. Stratton was President of the Massachusetts Institute of Tech­ nology. He had no reputation in public affairs, and in the sittings of the Committee remained almost completely silent. His col­ leagues seem to have been indifferent to his presence and all indications point to a purely formal participation on his part. It therefore becomes significant that he was nominated to Fuller by Lowell. Stratton was almost certainly a bad choice. Grant was elderly but by no means senile. A man of modest wealth, traveled, well read, the author of numerous pleasantly innocuous novels. Seven years later, at the age of eighty-three, he wrote his autobiography, and it is this book which gives most of the available information about the Advisory Committee.12 It is a curious volume; the only appendix gives the author's High-

THE GOVERNOR AND HIS COMMITTEE

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land ancestry, and there is almost no consciousness of the eco­ nomic and social problems faced by the industrial society in which he lived. Instead we have a photograph of a youthful cos­ tume party; those in the group are A. Lawrence Lowell, Katherine Parkman (Mrs. J. T. Coolidge), Harriet Lawrence (Mrs. Augustus Hemenway), Harcourt Amory, Anna Lowell (Mrs. A. Lawrence Lowell), Katherine Lowell (Mrs. James Roosevelt), Percival Low­ ell, Francis C. Lowell, Flora Grant (Mrs. Morris Gray), and the author. The picture is a splendid obverse of a New England medal —the other side of which would show Vanzetti's dozen Italian alibi witnesses. Immediately after his appointment, the Defense Committee leveled the accusation that Grant was hostile to Italians as such. What had happened was really quite trivial: while traveling in Italy in 1908 some of Grant's luggage was stolen; he "appealed to the Ambassador and the Department of State at Washington. Italy was ransacked from top to bottom and the frontier searched beyond." He wrote sarcastically and pettishly about Italian thiev­ ery, but later claimed that he had no animus against the Italian race.13 A more serious charge, that he had expressed hatred of Sacco and Vanzetti before his appointment, is not supported by adequate evidence.14 At the time of Fuller's request, Grant asked a question which does him credit. "What if you should get a divided report?" The Governor replied that such an opinion would constitute doubt.16 On the other hand, it is clear that Grant was extremely displeased by Frankfurter's having written on the case while it was still before the supreme court.16 Nevertheless, despite his generally harmless nature, Grant was not a good choice. He was defectively innocent of any realistic knowledge of the world in which he lived and he had no impor­ tant reputation as a legal scholar. The third member of the Committee was A. Lawrence Lowell, President of Harvard University. This man was rich, revered and powerful throughout New England, and possessed of an intellect of the first order. In moral quality, he was unexceptionable; it is doubtful if in his adult life he ever willfully did a wrong act. For these reasons he at once, and without vote, assumed the chair­ manship of the Committee.17 This is not the whole story about Lowell. He was widely re­ garded as a perfect specimen of the New England snob, domi-

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nated by a sense of noblesse oblige; this impression he never took the trouble to correct. His moral stature may have saved him from the committing of an evil act, but one may suspect that defects in imaginative perception quite often led him to bad mistakes. And this deficiency in imagination seems to have found its character­ istic expression in his most private prejudices. One of these—a dislike of Jews—is in process of being supported as the passage of the years releases collections of private documents.18 For the time being it must be accepted only as a possibility, and considered only for its bearing on the fact that Professor Frankfurter was Jewish. Loose associations of this sort are not proof, but the point is too significant to pass by without comment. The Committee sittings were primarily concerned with tht hearing of witnesses suggested by the defense; counsel for Sacco and Vanzetti were permitted to cross-examine all witnesses ex­ cept Justice Hall, Judge Thayer, the jurors, and Katzmann (in part).19 This was wise in the light of the safeguards which society has placed around the dignity of courts and the sanctity of jurors; whether those safeguards also operated to produce a just hearing for Sacco and Vanzetti is another matter, but so broad a question that it could hardly be argued at that time. The Committee did bring in other evidence and witnesses of its own choosing; the two chief happenings of this sort involved Sacco's alibi and the testi­ mony of Carlotta T. Tattilo; the result was unfortunate both for the accused men and the prestige of the Committee. The Committee must have known of matters which never be­ came part of the official record: the Goddard ballistic test of June 3, Vahey's private communication to the Governor on the failure of Vanzetti to testify at Plymouth, and the nebulous ru­ mors that someone in the Italian colony had finally implicated Vanzetti. They probably knew of the circumstances relating to Thayer's impounding of the Hamilton test pistol—although this matter was not argued at the hearings. What use they made of this unofficial knowledge or what weight it had with them is utterly unknown. They studied the fairness of the trial, the justness of the verdict, and Thayer's rulings on the supplementary motions. Finally: It was when the last hearing had closed that Lowell produced a type­ written paper, a copy of which he handed to each of us, saying that it contained an abstract of a Report. Merely suggestive, of course, but would we look it over? 20

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This naive statement by Grant, coupled with his previous obser­ vation that there had been no discussion among the committee members during the hearings, is eloquent testimony to the rela­ tive authority among the committee members. The "abstract" was presumably presented on July 21 after the hearing of the last witness; the arguments of counsel were not completed until July 25; the Report was signed two days later. Apparently, the larger part of the time given to a study of the Lowell draft ante­ dated the final plea of defense counsel.21 A most extraordinary procedure, to say the least. The Grant autobiography throws added light on two special points. The first of these relates to the Frankfurter article, to which Grant was very hostile. He says: It was not until the Report was nearly ready that Lowell told us that, after reading the article in the Atlantic Monthly, he had rather ex­ pected to find that injustice had been done.22 The second has to do with the examination of Thayer by the Committee; Grant, presumably because he was a judge, undertook this task at the request of his colleagues. The evidence that he had been grossly indiscreet in his remarks was cumulative. I was amazed and incensed that any Massachusetts Judge could have been so garrulous. [Grant wrote the actual words of censure.] . . . if my associates felt a shade less outraged than I by his unseemly conduct, it was from a due sense of perspective. [Nevertheless,] . . . his charge to the jury was free from reproach; not an utterance to which just exemption could be taken had reached them.23 Before taking leave of Judge Grant, he is entitled to his gen­ eral defense. He wisely does not justify the Report in detail— which could hardly have been done successfully; he must have understood that eventual historical judgment on the Committee would weigh chiefly the problems of social inadequacy and psy­ chological unfitness. Therefore, he says: We were accused . . . with being compliant tools of a capitalistic conspiracy, with an excessive reverence for the courts of the Common­ wealth, with a lack of moral and intellectual sympathy that blinded us to essential justice. . . . all [three members of the Committee] had been schooled to hold the balance even between the powerful and the lowly, the rich

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and the poor, as the first principle of humane authority. Is it con­ ceivable that we men, belonging to a conscientious generation, should have been so spiritually impervious to justice as to be willing to reject the plea of two foreigners of humble birth . . . ? 24 Grant can be answered simply—No. But he must also be reminded that a just and charitable spirit does not guarantee social per­ spicacity—or write a report free from grave error.

S The Advisory Committee was popularly known as the Lowell Committee, and with good reason. The Harvard president ran the proceedings, wrote the original draft of the findings, and appears to have dominated the group's thought from beginning to end. One episode is of such significance that it must be presented in some detail. Sacco's alibi was under examination; much of the defense testimony hinged on an Italian banquet given on April 15. Lowell, on his own initiative, offered evidence that no ban­ quet was held on that date. This greatly disturbed the defense counsel; for the first time it looked as if they might well have been the victims of enthusiastically framed evidence by the com­ patriots of Sacco and Vanzetti. Twenty-two pages of the hearings deal with this problem. Then there appears a notice that certain newspaper files were examined by the Committee.20 That is all. The record is shamefully incomplete. Incontrovertible evidence was assembled which proved that Lowell's material was wrong; he accepted the new proof and apologized to the witnesses whose word he had doubted. Absolutely none of this is in the printed record, and the only excuse given at a later date was the feeble observation that "colloquies" were not taken down. Here is the essential failure in Lowell as a man. He undoubtedly re-estab­ lished in his own mind the Sacco alibi, for whatever he may have thought it worth, but he was so unconsciously arrogant that he saw no need for the telling o£ the whole truth in order that pos­ terity might give its judgment. It is interesting to note that in Ferris Greenslet's biography of the Lowells, written twenty years later, this episode is not in­ cluded in the discussion of the work of the Advisory Committee. NOT does the biographer mention the preparation of the Report draft by Lowell.26

THE GOVERNOR AND HIS COMMITTEE

4 The Advisory Committee was appointed in reasonable fashion. Its personnel was exceptionally poor; there was not a man on it who was learned in the kind of law needed for such an investiga­ tion. One of its members was a brilliant autocrat; Grant was naive, and Stratton a nonentity. These personal considerations, coupled with an inaccurate report, led to immediate protests. The Springfield Republican was dismayed and spoke at once and directly to the Governor: Your committee was "inclined" to accept the testimony of the experts for the state rather than that of the experts for the defense regarding the vital question whether the mortal bullet was fired from Sacco's pistol. Was it sure of anything in that connection? Only this: "We tan be sure that the shot was fired by the kind of pistol in possession of Sacco." This uncertainty on the part of your committee stares one in the face. Your committee has assumed in its report that the jury understood Proctor's language just as he meant it. For it says: "It must be assumed that the jury understood the meaning of plain English words, that if Capt. Proctor was of opinion that the bullet had been fired through Sacco's pistol he would have said so, instead of using language which meant that it might have been fired through that pistol." Your excel­ lency must have noted the fresh confusion your committee's opinion on this point leads to. What right have they to assume that the jury clearly understood Capt. Proctor's meaning if Judge Thayer did not? For, the judge in his charge, plainly assumed not that Proctor meant that the mortal bullet might have been fired from Sacco's pistol, but that it was actually fired from it.27 Analysis of this sort demands careful study on the part of any reader; the original record did not always have such a reading from the Advisory Committee.

5 Postscripts to the work of Lowell and his associates continue to be written in later years; however, since they relate directly to the events of 1927, they should be considered at this place. The first was the revelation of the suppression of part of the record of the hearings (on Sacco's alibi); this question was fully explored

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in 1929 when the Transcript of the Record was being published. Lowell's only reply was to state that "The committee, in their subsequent deliberations, assumed it to be a fact that . . . this luncheon also took place on April 15." 28 Collateral evidence is also to be found in the correspondence of William Howard Taft, then Chief Justice of the United States. Shortly after the executions he wrote to Grant: Now that all is over I can properly write you about the Sacco-Vanzetti case. As a citizen I want to thank you for accepting the task of serving on the Governor's committee of advisers in that case. It was a thank­ less task and required courage and sacrifice to do it. You and your colleagues did it and did it well. It concerned the welfare of society here and the world in an unusual way. It is remarkable how Frank­ furter [sic] with his article was able to present so large a body of read­ ers a perverted view of the facts and then through the world-wide con­ spiracy of communism spread it to many, many countries. Our law schools lent themselves to the vicious propaganda. The utter lack of substance in it all is shown by the event. It was a bubble and was burst by the courage of the Governor and his advisers. . . .29 Other evidence indicates that Taft1 by his own admission, was unfamiliar with the case in May, 1927. Nevertheless, he wrote at that time to the President of Yale and urged him to silence those members of his law faculty who were arguing the issue, especially Robert M. Hutchins. Frankfurter, he thought hopeless, because "he seems to be closely in touch with every Bolshevist, Communist movement in the country." 30 Finally, in writing to Lowell on October 30, 1937, he said that propaganda "had been created by large contributions of female and male fools and had been circulated through all the com­ munistic and criminal classes the world over." 31 The language just presented is that of the chief judge of this country. Its lack of concern with factual knowledge, its automatic assumption of stupidity or vicious motivation on the part of everyone to whom he was opposed, its fundamental failure to re­ serve judgment, are enough to cause one to throw up his hands in despair at humanity. Taft had no interest in Sacco and Vanzetti, but his detachment from the event did not protect him from failing in wisdom. Lowell was involved in the issue to such a degree that he held the power of life and death in his hands, but he failed in accuracy,

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in judgment, and in fairness.* And if these men failed, not much was to be expected from Fuller. The ultimate judgment on the work of the Governor and his advisers is that it did not materially contribute to the determination of justice in the Sacco-Vanzetti case. * While this volume was in the hands of the printer, there was published Henry A. Yeomans's Abbott Lawrence Lowell, 1856-1943 (Cambridge: Harvard, 1948); Chapter 30 discusses Lowell's part in the Sacco-Vanzetti case. Professor Yeomans approves totally of the role played by the Harvard President. One could not, of course, insist that a biographer of Lowell be familiar with all the details of the case, but it is difficult to understand Professor Yeomans's handling of two very important problems. In the first place, he states that "Lowell always said if there was any chairman it was Judge Grant (p. 489)"; why then is no cog­ nizance taken of Grant's several statements and offers of evidence to the fact that Lowell was the effective chairman,—and especially why is there no mention of Lowell's composing the first draft of the Report? Second, why does Professor Yeomans pass over in silence the Bosco-Guadagni episode (the failure to insert in the record of the proceedings a rehabilitation of this part of Sacco's alibi),—which con­ stituted the most formidable specific charge against Lowell? Professor Yeomans surely has read about the Bosco-Guadagni business, and he must have seen Grant's Fourscore. His failure to discuss matters of which he has or should have knowledge fatally weakens the authority of his account of Lowell and the Sacco-Vanzetti case.

Chapter XII

T H E AFTERMATH: 1927-29 l THE ISSUE of life or death was settled with the execution of the

men, and can no longer serve as a touchstone for the analysis of events or opinions. The dynamic impulse which animated groups and individuals ended abruptly on August 23, 1927. New attitudes developed during the years to follow, and a new approach is needed if we are to deal satisfactorily with the subsequent his­ tory of the case. The essential quality about Sacco-Vanzetti interest after 1927 is that it is critical. The main purpose of all who have acted or written has been to "complete the record." Demonstrators and chroniclers concern themselves with the story. Legal writers re­ view the case in order to throw more light upon it, hoping that a full comprehension of the event will guide the law toward more effective justice. A large number of social scientists—historians, sociologists, psychologists—similarly combine retrospective and forward-looking points of view. The writers responsible for the imaginative record of human existence—poets, playwrights, and novelists—are keenly aware of all the tragic implications involved; they find a great deal to say about Sacco and Vanzetti and the world they lived in; they see more in the case than the drama of the past, and consequently read a lesson for the future. And finally, with increasing force, it has become evident that this social catastrophe involved two men of more than ordinary quality. This chapter and the next present the story of the case during a period of twenty years. First, there is an account of what may be loosely termed "activist" manifestations which are significant as simple happenings. Second, new facts and opinions which com­ plete our understanding of the legal history are discussed. Third in order, and much the largest body of material, is a review of the comments made by social historians, sociologists, and social psychologists. Only a summary account of literary and biograph­ ical interest is given; full consideration of this aspect of the legacy 310

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of Sacco and Vanzetti is reserved for the third and final part of the book.

2 "in the sacred Boston Athenaeum, largely run by Lowells, there was found on the morning of August 23, 1927, in every magazine in the Reading Room, a slip with these words: On this day Nicola Sacco and Bartolomeo Vanzetti, dreamers of the brotherhood of man, who hoped it might be found in America, were done to a cruel death by the children of those who fled long ago to this land of hope and freedom." 1 It can easily be said that this stunt was a petulant or even childish gesture; undoubtedly an attendant had garnered all the slips within fifteen minutes after the opening of the library, and the practical effect of the gesture in furthering the cause of human brotherhood was certainly negligible. But it can just as easily be said that this forlornly private rebuke may in time become an important part of the scripture of human freedom. A man once took a bath just before his execution, and that trivial act of human cleanliness is known to all the millions who have read of the death of Socrates. Given a few facts to go on, humanity has a curious way of selecting its symbols of faith. On this same bleak day, 154 participants in the death-watch were found guilty of sauntering and loitering, and fined $5.00 each. This event was not intrinsically dramatic. One wonders what inner compulsion led the Boston Traveller—which had openly expressed its belief that justice had been done—to dignify the court proceedings by referring to them as "a scene unparal­ leled in the legal history of Massachusetts." 2 August 28 was the day of the funeral. The bodies had lain in state in the Italian area of Boston and were now to be taken sev­ eral miles away to a crematorium. The hearses, and cars with the relatives and close friends of the men, led the procession. Several thousand followed on foot. The police had ordered the line of march in such a way as to bring maximum discomfort to the walkers and to make it easy to break up the procession at various places in down-town Boston. There was much confusion and some 50,000 onlookers became to a degree mixed up in the affair. For some reason the hearses eventually speeded up, the crowd broke into a running trot, and that was the signal for general police

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interference. On the whole, however, there is no evidence of violence by either sympathizers or police in down-town Boston.8 Only a thousand or so of the marchers got as far as the suburban cemetery. At this point, moved either by hysteria or brutality, the police attacked. Women marchers and innocent bystanders were viciously beaten without any specific provocation.4 The remains of Sacco and Vanzetti were reduced to ashes while living bodies went home to nurse their wounds. There were other exciting events in these days, such as the arrest of placard bearers, the making of the death masks, and the arguments over the disposal of the ashes. But they may be forgot­ ten; they teach nothing more than is widely known about popular interest in the sensational, or the limits to which grief can go. Four months later there were called up the cases of those per­ sons who had appealed their police-court conviction of loitering or sauntering, or who had been accused of something worse. Powers Hapgood was freed on the charge of inciting to riot but convicted of having spoken without a license. The atmosphere in the courtroom was very hostile to the defendant; he was sentenced to six months. On appeal, he was freed. The pickets—saunterers and loiterers—were Professor Ellen Hayes, Dos Passos, Hapgood, Catherine Huntington, John Howard Lawson, and Ella Bloor; they were found not guilty." It is significant that in all these pro­ ceedings the eventual court finding held that the police had not made their case. A violent rebuke to the authority of Massachusetts was offered by Harry J. Canter on November 3, 1928. He carried in public a banner bearing the legend "Fuller—Murderer of Sacco and Vanzetti." * This act led to a charge of criminal libel, a conviction, and a term of one year in jail. The incident throws some light on the temper of the city and on the Communist Party, of which Canter was a member.7 The legend, of course, meant that Fuller had been in a position of exceptional authority to prevent the commission of a judicial murder, and that his failure to interfere made him a party to the crime. It is difficult to decide whether Canter should be condemned for his foolishness in causing use­ less trouble or for his failure to add the names of a dozen other persons to the banner. In any event, Massachusetts gave evidence of being very sensitive. A year in jail is a long time, and the crime should fit the punishment. Elsewhere in the United States there were miscellaneous dem-

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onstrations of the type one would expect: an I.W.W. meeting in Seattle where the workers of the city were rebuked for not having struck; a memorial meeting in Vancouver where a violinist-com­ poser played a piece entitled "Sacco and Vanzetti"; a handing out of suspended sentences to demonstrators in Chicago; reported beatings at the hands of the police, in the I.W.W. weekly.8 Two Italians were being tried for murder in New York; their counsel told the jury that his clients while in jail "had reason to remem­ ber that justice is not always done to poor Italians in our court of law." 9 Governor Franklin D. Roosevelt of New York refused, on technical grounds, the request of Governor Allen of Massachusetts for the extradition of two strike leaders who faced Massachusetts charges; some observers thought that this refusal was based upon a private conviction that such men might not get a fair trial in the New England state.10 Europe also had its explosive postlude. There was a mob at the League of Nations Palace, and strikes in South and Central Amer­ ica, all in protest at the executions. Paris had a riot in which twenty police were hurt. Cherbourg put on a first-class show com­ plete with barricades and police charges.11 It would be interest­ ing to know to what extent these demonstrations sprang exclu­ sively from feeling about the American case. There is some evidence that the working class in France has been at odds with the police at least since 1789. A memorial pamphlet published in England gives a full ac­ count of the situation in that country; there are useful photo­ graphs which suggest a well-behaved crowd.12 The British press, by the way, is rebuked for its complacent satisfaction with the ad­ ministration of justice in England; examples are given of gross miscarriages. 3

Sympathizers with Sacco and Vanzetti who were of a more or­ derly disposition continued their work. The Defense Committee published four issues of the Bulletin between September, 1927, and August, 1928; they are of considerable value in tying up loose ends of the case. A new publication, the Lantern, appeared fifteen times during almost exactly the same period; Gardner Jackson was the editor of this magazine which had as its an­ nounced policy an unrelenting war on the spirit of fascism. Many of its issues have Sacco-Vanzetti material. The biographical record

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is largely completed. Lyons published his Life and Death of Sacco and Vanzetti in 1927; this volume was translated into German, Italian, and Yiddish; a Russian edition is said to have sold 130,000 copies. The Letters were edited by Jackson and Mrs. Marion D. Frankfurter in 1928. These letters were also published in Eng­ land, France, and Russia, between 1928 and 1931; there may, in addition, have been German and Spanish translations. The Sacco-Vanzetti National League was at work early in 1928. Robert M. Lovett was its provisional chairman, and it announced a five-point program: to publish the official record, the Advisory Committee Report, and the letters, to work for the reform of the law along lines indicated by the case, and to eventually establish the innocence of Sacco and Vanzetti.13 In collecting all available information about Sacco and Vanzetti, it was inevitable that their defenders should take an interest in the personal history of the men who had in one way or another been connected with the prosecution. It must be admitted that there was exultation in the tone of some of the accounts which appear in the Bulletin and the Lantern. The angry spirit mani­ fested undoubtedly resulted from the hostility shown the defense by the police and other authorities during the last year of the case. However, apart from the language used, the facts are rather startling. Fuller was a "favorite son" possibility at the nominating con­ vention of the Republican party held in the summer of 1928. Senator Borah is reported to have killed the Governor's chances by stating that "The Republican party cannot afford to spend the summer debating the Sacco-Vanzetti case." 14 On March 21, 1929, the Boston Herald noted that Fuller was on his way to Washing­ ton for consideration as ambassador to France; the next day the matter was settled negatively—perhaps because the French gov­ ernment is said to have privately advised the United States that it could not guarantee his personal safety.15 Shortly after this Fuller retired permanently from politics. Registrar Goodwin, who believed that Harvard, Sacco, Bol­ shevism, Vanzetti, fornication, and the American Civil Liberties Union were among the chief threats to American society, was put out of office without a hearing, in March, 1928—by Fuller.1® Fuller and Goodwin did no wrong; they merely lost or volun­ tarily gave up their positions as public servants. With other men it is a different story.

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Shaughnessey was one of the Department of Justice operatives who investigated Sacco and Vanzetti and whose report may still be among the unopened departmental files. By 1927, he was serv­ ing a twelve-year term for highway robbery.17 Joseph Ross was the court interpreter accused by Vanzetti of being deliberately favorable to the prosecution. He was the man who at times drove Thayer to court during the trial, named his son Webster Thayer Ross, and had District Attorney Katzmann stand as godfather to the child. Before the date of execution he was in jail serving a term for attempted bribery of a judge.18 The greatest catastrophe of all was that which brought to earth Arthur K. Reading, Attorney General of Massachusetts. Reading represented the Commonwealth at some of the latest hearings; he must also have advised the Governor on many aspects of the SaccoVanzetti case. His was a genuine tragedy and charity calls for no more than a narration of the chief events. On August 29, 1927, Reading spoke before the National Association of Attorneys Gen­ eral; he stated his belief that the trial had been fair, but admitted that the law had not been expeditious. Six months later he was charged with having shaken down an organization he was investi­ gating, to the tune of $25,000. On June 10, 1928, by a vote of 196 to 18, he was impeached by the Massachusetts lower house; he resigned his office. This was the first impeachment of an elected official in the history of the Commonwealth, and the second time in the history of the United States that an attorney general had been impeached. By July 7, 1929, he stood disbarred.19 I t is important to understand that these unfortunate histories are not presented in a vindictive spirit. They are given because they have a vital bearing on the case. There is no question about the fact that Sacco and Vanzetti may have been executed because they and their friends were unpalatable to the community. Were the men who stood on the other side of the issue any more pala­ table? Well, Fuller and Goodwin did no evil—they simply got out of office; but it is of some significance that they did not go on to the honorable discharge of other important public duties. The others, Shaughnessey, Ross, and Reading were proved scoundrels; that is three too many men of that sort to have asso­ ciated with a capital case. Society desperately hopes for at least average honesty of character in those to whom it entrusts its police and judicial power.

3i6

THE LEGACY OF SACCO AND VANZETTI

4

One point upon which everyone was agreed was the need for reform of the law; believers in the innocence of the men felt this was one program in which they would not fail, and those on the other side wanted to protect themselves from the recurrence of any such frightful case. As one newspaper said, "There lies be­ fore the people of America the duty of seeing that never again shall such an exhibition of judicial ineptitude mark the course of American justice." 20 A French legal writer bore down hard, but he also had a helpful observation to make: . . . admitting for the moment that the two Italians are guilty, and that the charges of Professor Frankfurter have no basis whatsoever, it is none the less true that flagrant abuses are possible and that ways of correcting these abuses seem to be either non-existent or inade­ quate.21 He felt that the chief procedural defect of British and American courts lay in the undue emphasis placed upon the trial judge's character and sense of responsibility. A less academic approach was taken by George R. Nutter in December of 1928; in his opinion the fault lay in the quality of the Massachusetts bar: It has been deteriorating for forty years and still is deteriorating. Its members are so "provincial" that they hardly are able "to see beyond the Hudson" . . . the laymen seem to accept defects in judicial pro­ cedure as an imposition of Providence with which they must be con­ tent. They see the almost religious adoration which the bar has toward the past, and they are inclined to agree that it must be sacrilege to change things which prevailed in 1850 under the rdgime of Chief Jus­ tice Shaw. . . . The Sacco-Vanzetti case showed serious imperfections in our meth­ ods of administering justice.22 These are not the words of an irresponsible rabble-rouser; they are by the President of the Massachusetts Bar Association. Immediate consideration had, as a matter of fact, been given to the inability of the supreme court to review all the facts in a capital case. The Judicial Council, an advisory body on the law of the Commonwealth, made appropriate recommendations in January of 1928 (they were not enacted until 1939),2* and the

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Governor transmitted them to the legislature. Apparently he did so grudgingly; the New York World—admittedly none too fond of the man—took editorial notice: Not to spare a churlish Governor trouble, assuredly not to approve his attack upon those eminent persons learned in the law who sought to save Massachusetts from a shocking blunder, but because it is worth doing, the Legislature should carry out Gov. Fuller's recommendation. Massachusetts should have no more Sacco-Vanzetti cases. It would be well also if she had no more Fullers.24 Parenthetically, it is worth noting that the nominating conven­ tions lay only six months ahead. New information was being unearthed in this period from August, 1927, to August, 1929, which had a direct bearing on the Sacco-Vanzetti case itself. Goddard, who had conducted the unofficial ballistic test of June 3, 1927, subsequently asserted that a bullet used in a Cleveland crime had been fired from the same barrel as the test bullets which he submitted. The only trouble was that the defense was able to prove that the date of the crime was a month previous to the sale of the revolver by the manu­ facturer. The argument over Goddard's qualifications as an au­ thority became rather complicated, but it at least left the public feeling even less confidence in experts as a class.2® The indefatigable Edward H. James succeeded in tracking down the long-missing Boda. He found him held as a political prisoner on the island of Lipari; their interview lasted for fifteen hours and was attended by a senior officer of the Italian police. No stenographer was present but James took copious notes; his examining technique was intelligent and thoroughly objective.2® The account which he later published in mimeographed form offers reasonable explanations for the supposedly suspicious rela­ tionships between Boda and Sacco and Vanzetti—relationships so tenuous, it will be noted, that Thayer barred the jury from con­ sidering nearly all of them. After interviewing Boda, James talked briefly with the elderly Galleani, who was also a prisoner; the anarchist leader said that he had met Sacco only twice but that he knew Vanzetti better; he testified to the fact that both were known anarchists. Much the most important of the new material uncovered was the Silva confession to the Bridgewater crime. It was presented in the Outlook and Independent in October and November of

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1928. The chief investigator and compiler of this new evidence was Silas Bent, a newspaperman and author of wide experience with an excellent reputation for accuracy and veracity. Finally, in the latter months of 1928 and the first months of 1929, the Transcript of the Record was printed. Virtually the en­ tire legal proceedings were thus made available for further study. The sponsors were: Newton D. Baker, Emory R. Buckner, Charles C. Burlingham, John W. Davis, Bernard Flexner, Raymond B. Fosdick, Charles P. Howland, Victor Morawetz, Charles Nagel, Walter H. Pollak, and Elihu Root. Messrs. Burlingham and Flex­ ner served as the committee on publication. The sets of six vol­ umes were placed without charge in the chief libraries of the country. The total cost of the project was about $30,000; this expense was borne largely by Messrs. Burlingham, Flexner, Howland, John D. Rockefeller, Jr., and Root. That a group of men, no one of whom held political or philo­ sophical views akin to those of Sacco and Vanzetti, should finance the Transcript of the Record is a social phenomenon of impor­ tance. They must have been motivated in part by what might be called a scholarly interest; in other words, they probably felt that the mere scope and complexity of the record of the case affords an almost unique picture of American law in action. It would also be reasonable to assume that they desired to hold the door open because, as men of judgment and social conscience, they felt that the case and its. conclusion raised reasonable doubt. The presence of Mr. Rockefeller's name among the contribu­ tors is particularly interesting. Traditionally, radicals have felt free to refer to the Morgans, the Mellons, and the Rockefellers as the arch-bandits of the hateful capitalist system. In this in­ stance, the left appears to have been guilty of the very lack of discrimination which Mitchell Palmer and his fellow-reactionaries practiced in damning all radicals. Mr. Rockefeller, it is true, did not take a public stand during the time of the Sacco-Vanzetti case; why he did not do so is not worth debating because there is no evidence of any sort on that point. But it is an incontestable fact that he and men of his stamp furnished the best and the only indispensable tool for scientific inquiry into the Sacco-Vanzetti proceedings.27 The publication of the Transcript of the Record did much to impress upon the public the continuing importance of the case. Editorial comment was largely directeu toward the revelation that

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the Advisory Committee hearings did not contain the rehabilita­ tion of Sacco's alibi. Many newspapers insisted that Lowell should explain. He did not do so; his only reply was to a Harvard student who had written directly to him: I do not care to enter into any public controversy on the subject of the Sacco-Vanzetti case. I have done my duty as a citizen with honesty and courage. The charge of suppressing evidence in presence of coun­ sel for the accused is an absurdity on its face to anyone who thinks about it.28

Lowell was not, of course, charged with suppressing evidence— with the implication that judgment was rendered upon less than all the facts; he was accused of willfully conveying to posterity less than the whole truth—which in this case reflected upon his fair­ ness. By this time the professional record of the counsel and the learned critics in the case was also a matter of public knowledge. Frankfurter had already made his entirely external position clear: (i) he became interested in the case in the fall of 1924, because of the sophistry of Katzmann's answer to the Proctor affidavit, (2) he never received any money for professional services and never ad­ vised Sacco or Vanzetti, (3) he is said to have loaned some money to the defense, and this sum was returned to him, (4) he never referred William G. Thompson to anything other than the Louis Post book, (5) neither the Atlantic article nor The Case of Sacco and Vanzetti was suggested by Thompson. For the magazine ar­ ticle he received $250; half of this went to an assistant as pay, and the remainder did not cover the cost of office expenses con­ nected with the assembling of material. All the royalties on the book went to the Defense Committee.29 Arthur D. Hill stated that he, Evarts, and Field received "proper money compensation." We have been and are in the case not upon any basis of sympathy, either personal, economic, or political, with our clients or their views, but purely as lawyers retained in the ordinary course of professional practice.80

Thompson's statement is particularly revealing. It will be re­ called that he received a flat fee of $25,000 in 1924. This is how it had paid off even before the last three difficult months: . . . this trial has been something of a catastrophe to this firm. We've lost friends, clients, and a great deal of money. My income last year

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was less than for more than twenty years before. I have a certain duty to my partners. Some imaginative person started a story of a $250,000 defense fund -it was a trifle difficult for me not to laugh. The defense fund has not yet quite paid the necessary expenses which we've been put to in gath­ ering evidence and pushing the case.31 The record of the case and the story of participation by counsel was thus almost totally complete by the summer of 1929. There were also several legal analyses which raised new points. Justice Brandeis of the United States Supreme Court had refused to in­ tervene because of private connections with the defense. For this he was bitterly criticized in the radical press. But he was worse than the others in this way: he took refuge by plead­ ing that he could not act because his family had interested themselves in the case. So had the families of the judicial lynchers, and the execu­ tive butchers. Could he but have had the courage, the vision to have been humanel32 The New Republic made a conclusive defense; it pointed out that Brandeis's refusal to intervene was an affirmation of the very scruple which Judge Thayer should have had.33 A fairly elaborate analysis, leading to grave doubt, appeared in the Springfield Republican; the author signed himself "a cabinet member in a Republican administration." It did advance one new and powerful argument. In discussing Ripley's "Damn them . . ." statement, the writer notes: The [advisory] committee says that it is improbable that Ripley de­ sired the disagreeable task of serving on the jury, and had only to reveal what he said to be excused. Is it not more reasonable to con­ clude that, if the charge be true, Ripley would have suppressed the fact, in order that he might help carry out his conviction, as he was finally in a position to do as foreman of the jury.34 The matter of Sacco's cross-examination was disposed of with extreme neatness by Emory R. Buckner, of the New York bar. It had, perhaps, been presented to the supreme court in unneces­ sarily complicated language. Now: The fact that Judge Thayer warned the defendants against introduc­ ing evidence concerning their economic or political views can have no possible bearing upon the issue whether he permitted the district attorney to exploit these views rather than to explode them. . . .

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The question is what the prosecution did with the subject after it was necessarily introduced by the defendants. The further question is what Judge Thayer permitted the prosecution to do with the sub­ ject after it was introduced by the defendants.35 The longest of all these reviews, one which went into the whole record (as it was available in December, 1927), was by William R. Riddell, who had achieved distinction as a judge in Canada.36 His main thesis is that it was a case for a jury; and he finds no fault or error in the trial. His attitude is curiously like that of the Advisory Committee; in commenting on Sacco's cross-exam­ ination, he says: "Ordinary courtesy would lead us to acquit coun­ sel of unethical conduct and intentional impropriety." Canadian district attorneys must have been of a different stamp from those farther south. He disposes of Thayer's ruling on the Medeiros motion in a couple of hundred words; there is no comment upon the serious errors and the angry tone of that ruling. He does hold that if a hunting down of aliens and Reds was in progress "no language is too strong in condemnation," but he insists that it is no concern of the trial record in the case. Judge Riddell wrote sincerely and with some force. His review is not convincing be­ cause he obviously has not taken the trouble to understand many of the arguments of the defense, and because he insists upon con­ sidering the record in a vacuum—totally dissociated from the so­ ciety which produced the issue. 5 Critical study of the imaginative literature connected with the Sacco-Vanzetti case is reserved for a later chapter. But the fact of publication of such material has some significance in the his­ tory of the times and may be alluded to briefly. In the extremely tense period just before the executions, and in the two following years, most of the Sacco-Vanzetti poetry was published. A large part of the verse—but not necessarily the best of it—was printed in anthologies which appeared in 1927 and 1928. Gods of the Lightning, a play by Maxwell Anderson and Har­ old Hickerson, was produced in New York in October, 1928; it received a favorable criticism but had a short run. A French play was printed in 1929; nothing is known of its production history. Upton Sinclair wrote a novel, Boston, based upon the Sacco-

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Vanzetti case; as history, it is unusually accurate. There likewise appeared in 1928 H. G. Wells's Mr. Blettsworthy on Rampole Island. The Sacco-Vanzetti case is the core of the allegorical action and the ultimate social criticism. The Case of Sacco and Vanzetti in Cartoons from the Daily Worker can conveniently be referred to at this place because it is an essential part of the imaginative record. All of the drawings are by Fred Ellis, sign painter turned artist. His fourteen cartoons are conceived with great originality and executed with masterful technique; Ellis's work redeems the nonsense which the Daily Worker usually printed about the case, and can be rightly con­ sidered the equal of the drawings by Boardman Robinson and William Gropper. 6 This chapter opened with a brief account of activist demon­ strations, and then turned to the growth of legal knowledge and opinion during the two years following the executions. The pres­ ent section is a short summary of what may be called "critical demonstrations"; it is followed in later sections by reviews of the chief opinions expressed by writers who have been roughly di­ vided into two main groups; (i) social historians, and (2) sociolo­ gists and social psychologists. The classification is arbitrary and not very perfect. It will, however, suggest the existence of differ­ ent, though by no means entirely separated, points of view. One curious fact is at once apparent. American newspapers, generally speaking, did not do much summing up of the case immediately after August 23. Strong statements of the conserva­ tive point of view appeared in both the Outlook and the Inde­ pendent (curiously different from the stand taken a year later in the combined Outlook and Independent).37 The Independent was hostile to the "dreary doctrines" of anarchism, and denounced class warfare as a "silly phrase." It resented particularly the accu­ sation that the men were sacrificed to the majesty of the law. They were not executed as anarchists; "A more vicious perversion of truth was never publicly proclaimed or upheld." 88 Foreign newspapers, on the other hand, gave the case much attention—this was particularly true of middle-ground liberal papers. The Salzburger Volksblatt and the Vienna Reichsposl y carried lengthy feature articles. Organs of the extreme left, such as the Moscow Worker, gave elaborate news coverage and edi-

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torial comment A late-comer among the big pamphlets was Ar­ thur M. Lehning's study of the case, published Ior Dutch readers. Perhaps America was tired. An amusing event took place in the Aldermanic Chamber of New York City; an elderly crank held forth for more than two hours to thirty-one spectators and ended up by collecting ¢2.51. The significant element in this nonsensical episode is that Captain Donnelly of the police re­ fused to interfere on the ground that it was wiser to put up with a harmless nuisance than to throw the man out and open the door to charges of suppression.39 One wonders how many police­ men there were at that time endowed with such a rare variety of wisdom. The more violent European opinion led to threats of reprisal. The French government was reported ready to deport foreign agitators, to investigate L'Humanite, and to question a Commu­ nist member of the Chamber of Deputies, who, incidentally, was already in jail.40 The London Spectator found itself obliged to print a half-dozen letters of protest from American correspond­ ents.41 The Sacco-Vanzetti Defense Committee went through a short phase of slight hysteria, easily understandable in the light of the strain it had been under. Massachusetts Reputation at Stake!!! had been published in May of 1927; now, after the executions, it was slightly enlarged and offered as Massachusetts the Murderer. On October 25, a strongly worded but closely reasoned letter was sent to Governor Fuller.42 By the middle of 1928, the radical parties of Europe began to diverge rather sharply on the social issues involved and to charge each other with all sorts of insincerity. Morder Massachusetts pub­ lished in the German language in New York, presumably for circulation both here and abroad, asserts that "The battle against and around Sacco and Vanzetti was an example of the struggle between the classes," and goes on to point out how brief, tenuous, and unsatisfactory the temporary alliance of liberal intellectuals and the proletariat turned out to be.48 In a different vein Souchy's Sacco und Vanzettij Zwei Opfer Amerikanischer Dollar Justiz, takes Sacco and Vanzetti into the fold of anarcho-syndicalism.44 Alexander Berkman, in Paris, devoted a good part of one of his bulletins to "The Sacco-Vanzetti Case in Russia." 45 One learns that officials of the Russian government had invited Sacco's widow to come to their country; this fact is bitterly contrasted to the

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constant imprisonment of anarchists by the Soviet, even in some cases for distributing Sacco-Vanzetti pamphlets which mentioned the victims' anarchism. One year after their death, the men were memorialized at a meeting in Boston. The speakers were Robert M. Lovett, Alex­ ander Meiklejohn, the Rev. Harold Stratton, John Cowper Powys, Horace M. Kallen of New York, Mrs. Evans, and Gardner Jack­ son. Kallen was charged with blasphemy and bound over for a hearing. The warrant was withdrawn by the magistrate who issued it when he learned that the speaker occupied an important position in the intellectual world.48 A year later a second memorial meeting was tentatively ar­ ranged for the Old South Meeting House in Boston; permission to use the structure was finally refused and the group had to go to New York to find quarters. The list of speakers included: Henry R. Mussey, Morris R. Cohen, Dr. Alice Hamilton, the Rev. Sidney Lovett, and Mrs. Gertrude L. Winslow. These memo­ rial meetings indicate the belief of important persons that a con­ tinuing emphasis upon the case was useful. At this same time the editors of the Lantern sent out a letter requesting opinions on the ultimate significance of the case. Among those who replied, and whose names have not been men­ tioned as yet in these pages, were: James T. Adams, Ernst Freund, Theodore Dreiser, Sinclair Lewis, William Ellery Leonard, G. D. Eaton, Edmund Wilson, Lewis Mumford, Charles A. Beard, Harry Elmer Barnes, Edward M. Earle, Harry Emerson Fosdick, Harold J. Laski, Rockwell Kent, and Bertrand Russell.

7 Critical comment upon the case by those who were satisfied with the final result is disappointingly scant and superficial in the years 1927 to 1929. This is true, by the way, throughout the whole history of the affair; perhaps it is because such persons have felt that they could stand upon the record, but it is strange that no full-scale study has ever come from a historian who believes that fundamental justice was done. An easy disposition of the event was arrived at by the Review of Reviews which held that the whole business was a lot of non­ sense; just that "two obvious rogues have been endeavoring to build up for themselves a reputation as exponents of philosoph-

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ical anarchism . . ." and have misled "many people who are anxious for justice." 47 This rogue theory is found only in this one journal; the Review of Reviews could not have read the record with any care. The Boston Evening Transcript was chiefly interested in set­ ting right such foreign interventionists as the British magazines, H. G. Wells, John Galsworthy, and Arnold Bennett. It pointed out to them that they were uninformed and had been moved by propaganda. The paper was in a peculiar position; as the chief expositor of what it considered to be the most mature culture in the country it found itself rebuking the European intellectual world to which it by custom addressed itself.48 One view continued in full force: it held that Sacco and Vanzetti were entitled to something less than other men because of their political beliefs. Samuel R. Stern, a judge in the state of Washington, said: . . . they were Anarchists and . . . had an antipathy to our form of government and our mode of doing things. Must such men be.believed in preference to law-abiding citizens? [Frankfurter] lost his perspective because he is so steeped in what he thinks are the wrongs of the laboring people.48 The language quoted is dispassionate. It is curious that the logic of the statement comes so close to that of the farmer in South Dabney, New Hampshire, who remarked: I say Judge Thayer did right to find 'um guilty of that murder, evi­ dence or not, so as to get rid of 'um. . . . America's for Americans, not for damned foreigners.50 The Boston Herald, it will be recalled, had had serious doubts as to the way in which justice was being administered—doubts which were relieved by the findings of Governor Fuller and the Advisory Committee. Now it spoke for what must have been a very large body of New England citizens when it headed its edi­ torial "Back to Normalcy": Let us get back to business and the ordinary concerns of life, in the confident belief that the agencies of law have performed their duties with fairness as well as justice. . . . Now let us go forward to the responsibilities of the common day with a renewed determination to maintain our present system of government, and our existing social order.51

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8

A number oi persons began at this time to write on the case from the point of view of the historian; they vary widely in their scientific training and in their sense of responsibility. Generally speaking, they were interested in the causes and the effects of the event. One opinion finds the cause in the fact that fear of the Reds outweighed the fear of doing an injustice.52 This may be true of the original verdict but it is too simple a criticism to apply to the last year of complicated hypertension. Another interesting view is that of H. C. Herring who refers to "the eloquent silences" of the Boston Chamber of Commerce, the Boston City Club, the University Club, and the Rotary and Kiwanis groups.53 If there were any way of getting information, this would be a rich field of exploration. It is quite true that despite the large number of groups who participated in the debate there were many organiza­ tions, institutions, and associations of interest who took no part. Were they silent because they were completely satisfied, because they were apathetic, or because it was thought best to avoid the bitterness and internal quarreling which would attend open com­ mitment? New England "business," to the degree that it had real organic unity, is the chief example of a social entity which stood apart. Another opinion held that the postjudicial board of review was made up of persons who were too remote from the feelings of ordinary men: It was inconceivable that an investigation conducted along such lines by men possessed of that special distrust of common people which is too often the lot of cloistered aristocrats, should ascertain the entire truth.54 This observation is not a preliminary statement of the class war thesis; it is much closer to the permanent American distrust of the intellectual and academic mind. There was, of course, ample analysis of the Sacco-Vanzetti case from those who accepted the historical premise of an unrelenting war between the classes. It will be illuminating to consider first the critique of the avowed left and then to turn to those who, while supporting this theory, deem themselves dispassionate.

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The Blood-Stained Trail, a History of Militant Labor in the United States, was written by M. T. Rice and Ed. Delaney, and published late in 1927 by the I.W.W. On its cover appear drops of blood falling into a viscid pool, all in a frightful red ink. But despite its sensational appearance it is a rather useful guide to the conflict between labor and its enemies in the previous fifty years. The authors assert that the United States is the chief battle area for the class war because of the highly industrialized nature of the country. On the other hand, American workers are: . . . perhaps less educated to their class position than any place else in the world. The appalling ignorance of this condition, or at least the alarming indifference to it, was displayed by millions of workers who failed to realize the class-significance of the Sacco-Vanzetti case. . . .55 The reasons for Massachusetts' action in taking the lives of Sacco and Vanzetti are held to be two in number; first, the Red hysteria, and second, "the fear of the masters of losing control of workers through union organization." 56 And it is pointed out that the defense efforts failed largely because "Not a prominent politician in the United States appealed to the executive or to the courts . . . to save the lives of the condemned men."" There is inaccuracy and poor argument in the Bloodstained Trail, but the observations just cited are worthy of consideration. Although Sacco and Vanzetti were not organizers, and Vanzetti was opposed completely to the whole idea of organized labor, they had by accident been associated with action taken by unions. And no argument is needed to prove that there have always been interests of great power basically opposed to labor solidarity in this country. The second observation, relating to the silence of the political leaders, is even more pertinent. Unless one takes a completely legalistic stand, it cannot be denied that the case at its end was a matter of general concern to society—and politicians are ordinarily supposed to have ideas about such matters. I.W.W.'s, it should be noted, were not Communists. They dif­ fered in historical origin, basic theory, and stated program. Both of course accepted the inevitability of the class war. It would be extremely interesting to examine the manner in which the SaccoVanzetti case brought these two groups into conflict and evoked subtle differences of opinion, but this would be a specialized study

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beyond the scope of this inquiry. For the present, the fact of dif­ ference can only be suggested. The official communist account of the case was Max Schactman's Sacco and Vanzetti: Labor's Martyrs.68 It is an exasperating document; it is highly inaccurate and colored by the usual scream­ ing bombast; nevertheless, it gives a significant opinion which cannot be neglected. The errors are numerous. The bombs were set by provocative agents (as unproved as the counterclaim). They injured no one seriously (wrong). The jury was "staid, torpid, highly patriotic, oblivious to progress, or a progressive idea, and completely domi­ nated by the foreman. . . ." (Sheer guesswork.) "Thayer found that 'the defendants' ideals are cognate with the crime. . . .' " (The transference of a remark alleged to have been made at Plymouth to the Dedham trial.) And so on. But Schactman does have substance in his charge against the liberal point of view. The defense turned more and more toward reliance upon those false friends concerned more with the vindication of "confidence in our institutions and their capacity to rectify errors" than with the vindi­ cation of two unknown immigrants. [The defense] sold the class birth-right of the Sacco-Vanzetti case for a mess of liberal milk and pap. [The Defense Committee was hopelessly blind when it held that] "WE EXPECT JUSTICE! Because Gov. ALVAN T. FULLER has the reputation of being a man of courage, honesty and independence. Because the Governor's advisory committee is composed of men reputed to be scholarly, of high intelligence and intellectual probity, with minds unswayed by prejudice and with their reasoning powers directing their search for truth." 68 The Defense Committee could not, of course, have believed what Schactman rebukes it for saying; there was existing evidence to contradict these words of praise. They were written, obviously, as a matter of policy. Nevertheless, the outcome suggests that the communists may be right in saying that a sterner attitude might have served warning. One quality must be granted to communist writers. If one accepts their particular version of the class war, they certainly know how to dramatize it. Schactman's concluding remarks on the case are extremely vigorous:

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The Sacco-Vanzetti case tore away every veil that covers the fact that the ruling class of this country, the bankers and business men, pull the strings to which a million dignified puppets dance; that theirs is really the voice which seems to issue from the throats of presidents, governors, mayors, justice of the supreme court and village magistrate, editor and reporter, soldiers and sailors, policemen and detectives, preachers and educators, false liberal and false labor leader—all of the well-bred, well-dressed and right-thinking gentlemen and ladies who tortured the two Italian immigrants, seated and strapped them in the chair, polished the electrodes and threw the switch.60

Sacco and Vanzetti, in the eyes of the political left, were de­ liberately chosen victims who went to their death attended by sadistic expressions of exultation from their killers. Then, as now, a great many perso: s who are not communists or wobblies accepted the class war as a demonstrable phenom­ enon in the history of the race. They are always considered "weak sisters" by the political left because of an alleged disinclination to much-needed revolutionary action. This may or may not be true; their comments in this case neither support nor refute that charge. What emerges as their chief distinction, is an unwillingness to ascribe personal and deliberate malice to the ruling interests. Lyons, for instance, sees the struggle as largely automatic and unconscious. It was not a frame-up in the ordinary sense of the word. It was a far more terrible conspiracy: the almost automatic clicking of the ma­ chinery of government spelling out death for two men with the utmost serenity. No more laws were stretched or violated than in most other criminal cases. No more stool pigeons were used. No more prosecution tricks were played. . . . It was a frame-up implicit in the social struc­ ture. It was a perfect example of the functioning of class justice, in which every judge, juror, police officer, editor, governor and college president played his appointed role easily and without undue violence to his conscience. A few even played it with an exalted sense of their own patriotism and nobility.61

An editorial writer in the World Tomorrow is less sure of the impersonality of the process; in his opinion the class war is being fought "as violently by respectable defenders of the status quo as by the wildest, most isolated, and least responsible of the revolu­ tionaries whom they so sanctimoniously condemn." 62 Lewis Mumford emphasized the continuing nature of the conflict: "We con-

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front, not an accidental miscarriage of justice, but a permanent condition." es An important statement was made by Horace M. Kallen, the author of numerous books in social history. It will be recalled that Kallen spoke at the first memorial meeting and that the police charged him with blasphemy—under an almost never-used statute. He began his remarks by noting that Sacco and Vanzetti were killed because of their alien blood and ideological non-con­ formity. He then distinguishes between two kinds of anarchism. One kind is simply a religious sect. One kind holds to a certain gospel about human nature and the structure of society. One kind is an anarchy envisioned out of the love of man. If Sacco and Vanzetti were Anarchists, Jesus Christ was an Anarchist. [This, presumably, is the passage that led to the blasphemy warrant.] There is another kind of anarchy which never is called by its true name. It is not religious but criminal. The practitioner of this kind of Anarchy does not recognize himself as an Anarchist; he calls him­ self the champion of law and order. And he is the champion of law and order. But he champions his law and order that he may use them for the purpose of attaining selfish ends, of expropriating the com­ munity, of exploiting his fellowmen, of debauching the government and defeating justice, of making the record which is the shame of the United States during the last seven years.64

9 So much for the causes as they were set forth by the first group of social critics who were in a position to examine the whole case as an accomplished fact. When they came to state their opinion of its result they saw chiefly a discrediting of the law and a grave weakening of the liberal tradition. Even the mass-consumption popular magazines woke up to the position of the law; Liberty remarked that "We can not think of a more flagrant series of blunders committed in the sovereign name of justice than the Sacco-Vanzetti case offers." 65 Lyons, it will be observed, gave substance to his biographical study by numerous interpretive passages; on the question of the law he makes a very shrewd preliminary observation. The aim of many well-intentioned persons was to save our institutions, "and to do this, saving Saeco and Vanzetti was necessary, but incidental." ββ This is an important point and raises a serious general problem

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about social action: was there an essential indirectness in the thinking of some of the legal liberals, and could they have spoken more effectively if they had said less about the desirability of pure justice, and more about the saving of the accused. We shall see later that Vanzetti sensed this weakness in the program of the defense. And for the relatively small group of Americans who cared about foreign opinion of this country in 1929, the whole business was most disheartening. As Harry Elmer Barnes said: Rightly or wrongly, the case of Sacco and Vanzetti did more to destroy abroad our ancient reputation of being a "land of the free" than all of the other historical incidents of the last century . . . it is scarcely impossible to exaggerate the unfortunate effect of the case upon for­ eign opinion of American justice.67 Constructive suggestions as to what might be done are almost nonexistent, if we except the appellate reform practice which was being advocated in Massachusetts. Charles A. Beard stated the desirability of "seeking to discover, by study, the significance of this trial and its outcome for the whole process of justice." Of common-sense approaches to the legal mess, only the opinion of Alfred E. Smith seems to have survived: I don't know what to think about it. . . . I haven't studied the case as I should have to study it if it had come before me. But if I had studied the case . . . and it left me in such a state of mind that I had to call in a couple of college Presidents to tell me what to do, I'd call that a reasonable doubt and let 'em go free.68 It would be hard to find a more succinct statement of reasonable public policy—and it will be noted that there lies back of the words an ethical imperative. But the chief result of the case, in the opinion of many com­ mentators, was the weakening of liberalism, both as a general attitude and as a recognizable voice to be heard in the solving of social problems. The best statement of this view is in the "Penalties of the Sacco-Vanzetti Execution" which appeared in the New Republic: [The Advisory Committee] verdict was, we insist, a betrayal of the faith in reason which is inherent in the composition of a liberal and humane state. . . . The shades of Sacco and Vanzetti will harvest their revenge, not by virtue of any future triumph of anarchism, and

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probably not by any future vindication of their vanquished liberal defenders, but by the consequences which will follow from the public marriage which Messrs. Thayer, Fuller, and Lowell have consummated between unreason and social authority.68 The writer goes on to say that the case has discouraged aliens who were in the process of becoming Americanized, stimulated the physically violent radicals, educated the "hundred per centers" to a more effective display of their views, and forced a great num­ ber of liberals toward the idea of class warfare. There is no way of determining whether the Sacco-Vanzetti case was a prime cause for the development of such conditions as the New Republic foresaw. But there is not much question about the fulfillment of the prophecy—it came soon and has remained with us. 10 Robert Lincoln O'Brien published privately on August 20, 1928, a document of prime importance for the understanding of the whole social conflict. It was entitled My Personal Relations to the Sacco Vanzetti Case as a Chapter in Massachusetts History.'"' It had an extremely limited circulation and has not been exam­ ined in any of the existing studies. Its significance lies in the fact that O'Brien was one of the really important men in New Eng­ land. He was the owner-publisher of the Boston Herald and the Boston Traveller and had an infinite variety of powerful connec­ tions. Furthermore, his pamphlet displays the workings of a vigor­ ous and realistic mind. His account should be weighed with care. He characterizes his position, at the time he first became inter­ ested in the case, as "essentially neutral"; he was equally disturbed by the prevalence of brutal crime and by the vigilante spirit which continued as a sequel to Palmer's Red raids. In time he enter­ tained doubt on the specific issue of guilt and agreed with the "We Submit" statement of Bullard, his chief editorial writer. For a period of some months his papers found themselves joined in their stand by a large part of the American press. Finally, O'Brien notes, only the Springfield Republican and the St. Louis Post-Dispatch, among the important dailies, remained sympa­ thetic to Sacco and Vanzetti. He does not mention the New York World. His chief purpose in writing his pamphlet appears tQ be to account for this change.

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Parenthetically, he comments on a conversation he had with Fuller at the June 13, 1927, Boston University commencement where both men received honorary degrees. The Governor ob­ served that it was "abhorrent" that responsibility for such a de­ cision should fall on one man; he also remarked that much of the prosecution testimony was breaking down, although he took no stock in the Medeiros confession; his chief determinant would be the necessity of living with his own conscience. This conversation and the fact that twenty-two typists had been put to work copying the record for the use of the advisory committee led O'Brien to believe that some form of leniency was in the offing; he was joined in this opinion by Mayor Nichols and other prominent men. But Sacco and Vanzetti were executed. The publisher believes that there were two causes. First: The momentum of the established order required the execution of S and V, and never in your life or mine, has that momentum acquired such tremendous force. On the night of the execution that action was approved by 98 per cent of the people of Massachusetts. . . . A sur­ prising number of groups and elements and factions of the community came to regard leniency for S and V as an assault upon the honor of the Commonwealth. . . . Everywhere the tide ran with the fury of a torrent. Why was it? I should like to discuss this phase of the case wholly apart from any question as to guilt. We had just electrocuted three boys belonging to the numerically ascendant racial group in this community . . . [the Irish "carbarn bandits"]. Their sympathizers were greatly infuriated at the sugges­ tion that two Italians, whose guilt of a crime immeasurably more brutal, appeared equally in evidence,—slackers in war, radicals in poli­ tics, renegades in religion, should find leniency. . . . Here was a racial factor of enormous significance. . . . [O'Brien discusses the anti-leniency stand of the majority of the lawyers.] The judicial machinery of the state constitutes an organiza­ tion of unmistakable potency. . . . There arose in this state an in­ tense demand that we should adhere to established legal procedure; that the theory of the law was not that the public should be satisfied a verdict was just, but that the 12 jurors who sat on the case should be. . . . A former district attorney who had originally told me he would not, if holding that office, have been willing to obtain the con­ viction of these men by the methods which the prosecution actually employed, subsequently swung wholly around and told Mr. Bullard that it would be better even for two innocent men to be electrocuted, than for public confidence in our established order of judicial pro-

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cedure to be broken down. . . . C. Howard Walker, the well-known architect, . . . declared himself in easy phrases, 'enough of a Machiavelian to rejoice in the executions, whether the accused were inno­ cent or guilty.' . . . From our experiences in this case we may well be assured that the legal institution has acquired an undoubted hold upon the people of this Commonwealth, and that when any peril threatens it, popular defense will be instant and insistent. Allied to fear for the law, says O'Brien, was fear on the part of the conservatives for the established economic order. A man named McNutt in Buffalo wired President Hopkins of Dart­ mouth an offer of $50,000 to the endowment fund if Professor Richardson—testifyer to Thayer's prejudice—were removed from the faculty. (Hopkins, of course, was outraged.) At this point it will be well to express one or two qualifying opinions on the O'Brien statement. Generally, it seems to be an accurate though shocking description of public sentiment. His emphasis upon Irish hostility toward Sacco and Vanzetti needs further proof; it does not fit with the fact that the majority of the letters demanding execution came not from this group but from the original Yankee stock. There may, however, have been undercover pressure exerted upon the Irish political leaders. The second important cause is characterized as a growing con­ viction upon the part of many persons that Sacco and Vanzetti were in fact guilty. Their most loyal friends, with few exceptions, came to the conclusion that either Sacco and Vanzetti were murderers, or were fools of an extraordinary depth of fatuousness. They went around loaded like arsenals, with no better reason for such preparations, than to gather radical literature, fearing expulsion from the country if they were found so doing, at a time when Sacco was himself getting ready to leave the country anyhow, and so could have gone at public expense. I can think of no condition in which I would make common cause with Madeiros, the confessed murderer of a bank cashier, by conveying Madeiros's greetings to my son in a last letter, or by telling the boy that Madeiros should be in school instead of jail. I can picture no circumstances in which the challenge of my ownership of an automo­ bile by a police call would lead me to—being innocent—run away from it. An interruption of Mr. O'Brien at this point in his discourse is regrettable but necessary. He must be frankly challenged. Why does he say that most of the friends of the men came to think

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them either murderers or fools? This is not true: the great major­ ity of persons who at some time spoke for the defense remained wholly devoted to its cause. Why does he say that Sacco and Vanzetti had "no better reason" for being armed than their activity in gathering radical literature? This is not true: it had been made abundantly clear, several years before the O'Brien statement, that what Sacco and Vanzetti feared was the brutal and murderous treatment given suspected radicals by Department of Justice agents. Why does O'Brien see no sense in Sacco's conveying the greetings of Medeiros to young Dante Sacco? Has he no awareness of the sympathy and understanding which may grow, even be­ tween utterly disparate natures, when men share the awful com­ panionship of death cells? Why does O'Brien object to Sacco's comment that Medeiros should be in school instead of prison? Sacco said absolutely nothing of the sort; he did say that a wiser society would replace prisons by schools. Even if Sacco had held the view ascribed to him, would he not merely be stating a social principle which was widely accepted, even in that day? Why does O'Brien say that Sacco and Vanzetti ran away from their auto­ mobile? This is not true: they did not own the car, the ownership of the vehicle was never challenged, they may have been unaware of the call to the police, and their leaving could not possibly be described as running away. O'Brien continues: Even more important is the fact that not one of 63 persons officially connected with the case had doubts of guilt. [He adds that Morton Prince, the psychologist who had attacked the Splaine testimony, was convinced by the Advisory Committee report.] [Those who wanted a commission of inquiry were satisfied] . . . particularly because we could find no three men in all the world, were we to select them ourselves, in whose findings we would have more complete confidence. He is also impressed by the rarity of the fatal bullet and the fact that Sacco carried similar bullets. And in conclusion, he observes that the men were supported by a world-wide agitation dissemi­ nated through the techniques of a modern propaganda system. This fact leaves him with an "uncomfortable suspicion." Further questions must be addressed to Mr. O'Brien. Why does he have such faith in the Advisory Committee? Stratton had no reputation for the handling of such matters, and his few remarks

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in the record of the hearings indicate that his mind was not func­ tioning in any very brilliant fashion. Grant, by his autobiography, showed himself to be an engaging compound of old-fashioned gentility, naivete, and fussiness—and in no way suited to decision upon a matter of life and death. The "three men in all the world"? Had O'Brien no understanding of the intellectual power and breadth of learning to be found in Hocking, Frankfurter, Pound, and Hutchins? These men after careful study and grave delibera­ tion found one or more flaws in the operation of justice; beside them Stratton and Grant were pygmies. Again one must ask— "the three men in all the world"—has the phrase any element of considered judgment in it? A final estimate on R. L. O'Brien's My Personal Relations . . . leads to a most embarrassing conclusion, one which strongly sup­ ports the position of the defense: he is extraordinarily accurate in his portrayal of the hostility felt by New England society to­ ward Sacco and Vanzetti, and this was one of the chief reasons for their death; he is wrong as to several vital facts and open to strong rebuttal in argument when he comes to support his conviction of guilt, and this conviction, widely held, was the second reason why the men died. 11 A good deal of historical analysis is to be found in the European countries in these same years; only that part of it which repre­ sents new and different findings need be discussed. The rest of it may be assumed to parallel the American material. The tenor of most of the foreign publications is reflected in the round-up of the September 15, 1927, issue of Living Age.71 The Morning Post said, "it is not the accused, but the judicial system of America that stands on trial." The Westminster Gazette viewed the affair calmly as an incident in the melting-pot prob­ lem of the United States. The Neues Wiener Tagblatt asserted that the seven-year delay constituted in itself an additional and intolerable punishment; it asked, "What must be the mentality of a nation which permits such a system of justice?" Only the Nation and Athenaeum found any solace in the event; at least there was "the passion for justice and the amazing dauntlessness in the pursuit of justice of that body of American citizens who have taken up the case for the defense."

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Romain Rolland, writing within a few hours after the execu­ tions, spoke very bluntly. He insisted that the tragedy lay not in the fate of Sacco and Vanzetti but in "the abyss which this offense has now dug between the United States and the rest of the peo­ ples of the world. . . . One simple solution was deimanded: mercy." He points out that pride in existing institutions, and a readiness to defend them, has always existed; the terrifying ele­ ment in this case is that no one in the Federal government had the courage to speak up. He answers Borah's angry remark about wild-eyed Continental protests by observing that those pleas ac­ tually came from "the liberals, the Christians—all the saner and better balanced elements of Europe." All of these were shocked by the remorseless hardness of America. And a blow given will be returned. I am not an American; but I love America. And I accuse of high treason against America the men who have soiled her with this judi­ cial crime before the eyes of the world. Their abominable parody on justice has destroyed the most sacred rights of humanity.72 Italian views are of course naturally suspect because of their emergence from a fascist country. Nevertheless they are of inter­ est. In an Italian booklet on the case, a document without any apparent political bias, there is both independent criticism and quotation from the newspapers of the day.73 Two ages, two worlds. This again demonstrates that while America and the Americans hasten to throw the last shovelful of dirt upon the victims, and hurry off to a vacation, Italy returns to its dignified re­ serve—confirmed in its strength. The Corriere della Sera is both more specific and more sophisti­ cated in its judgment: It is inevitable that, sooner or later, the American people will take cognizance of the stupendous error which has been done in its name by a group of blinkered functionaries in whom the gloomy puritan resoluteness and the crusading zeal of the first immigrants in the May­ flower has degenerated into a squalid and obtuse fanaticism of legal­ ity. The Tevere takes up a stock European complaint and asserts that America had perfected a mechanical civilization which has un­ fortunately not concerned itself with the impalpable human spirit.

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12 Thus far this chapter has been concerned with historical criti­ cism of the case from the date of execution to the second anniver­ sary of that event on August 23, 1929. The remaining sections deal with observations which are grounded on the case but offer general views either on the structure of society or on the psychol­ ogy of social action. Men who were not trained social scientists began to sense the existence of certain intangibles which had to be reckoned with if the structure of their world was to be understood. Thus, an individual who characterizes himself as a citizen of normal re­ spectability and a devout Catholic told of how, as doubt grew in his mind, he found his protesting spirit met by a constant "No" from the "Thing." Always, ". . . the Thing will leer and grin and say: 'Well, I did it, didn't I-I did it and got away with it— and what the hell are you going to do about it?' " 71 Slight as the substance of such a statement may be, and marked as it is by emotionalism, it is quite possible that it reflected a fairly common spiritual horror. Ordinarily such feelings are too tenuous, or too privately felt, to make their way into print. And yet their force is much like that of the observation made by Meiklejohn: "Forever, the institutions which [society] fashions to serve its ends deny those ends as well as serve them, destroy our values as well as bring them into being." 7S Where there is force, there are always at some date victims. Heywood Broun, who continued interest in the case up to the time of his death, asked, "Why does America hate the foreigner so profoundly?" His answer has been supported by many a subse­ quent learned treatise: "I think it is because we have wronged him so much." 76 It has been a commonplace since Anatole France's letter of 1921, to draw the obvious parallel between the Dreyfus affair and the Sacco-Vanzetti case. The legal situation was different, but the passionate debate was generally similar. Junius Parker alluded to the two cases in a lecture delivered at the University of Vir­ ginia. He was speaking of French law, in the year 1929: I venture the opinion that about as many Frenchmen yet believe that Dreyfus was guilty, as twenty years from now, so far as they shall have heard of the matter at all, Americans will believe Sacco and Vanzetti

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guilty, and that in the two cases believers in the guilt and believers in the innocence of the accused constitute, and will constitute, re­ spectively, of their respective communities, very much the same classes or kinds.77 The two classes are "the intelligentsia, including folks who write, and write well" and "the majority of the stolid, substantial and less vocal." One can only hope that Parker is wrong; it would even be better to think that everyone in the whole world would eventually know that Dreyfus, Sacco, and Vanzetti were guilty beyond doubt. If there is to be no change, one must conclude that human intelligence and its agent, education, will always fail. The dominant sociological criticism was not, however, so com­ pletely pessimistic; it simply saw the case as a phenomenon appro­ priate to Spengler's dying culture. Bertrand Russell thought the event indicated obvious regression: I am forced to conclude that they were condemned on account of their political opinions and that men who ought to have known better allowed themselves to express misleading views as to the evidence because they held that men with such opinions have no right to live. A view of this sort is one which is very dangerous, since it transfers from the theological to the political sphere a form of persecution which it was thought that civilized countries had outgrown.78 Instead of viewing the case as evidence of a sort of social ata­ vism, Hubert Langerock, an I.W.W. writer, felt that it was more genuinely proof of the way in which old evils are handed down in new shapes. Americans, he says, have been nursed upon the "hollowness of their constitutional myth." The founding fathers, "in fact, transferred the divine right of kings to the judiciary." 79 When one recalls the gross materialism of the 'twenties, it is easy to see why more than one person ascribed the catastrophe to the corrupting influence of greed. The failure of justice came about through the ". . . combined timidity and capacity for solidarity of the people whose incomes depend directly or indi­ rectly, on industry, commerce, or finance." 80 ". . . wealth is not morality, . . . the tyranny of Mammon is more soul-rotting than that of kings." 81 These are not the words of communists or rabblerousers; they are the opinions of Edmund Wilson and James Truslow Adams. And there was some proof of this degenerative force, proof of a very direct nature. As Robert M. Lovett observed, Lowell had a certain quality of "high-mindedness" in his book

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on the law of stock transfers, but when he came to deal with aliens and poor people—Sacco's alibi witnesses—"his course changes—it is no longer straight-forward and scrupulous, but in­ direct and tortuous, his behavior a mixture of insolence and cunning." 82 Some of the most effective remarks are those which addressed themselves directly to the failure of social intelligence. Paul Kel­ logg, editor of the Survey, pointed out that the Advisory Com­ mittee made no obvious use of the available agencies of scientific research; its members did not ask for help from economists, jurists, historians, engineers, sociologists, and psychologists. They did not employ the technique of these professions as implements for arriving at truth in the face of hysteria. . . . [The Bosco-Guadagni affair, the matter of Sacco's alibi] sapped the integrity of the scientific process.83 A physician in the Middle West, who apparently had had no previous part in the case, wrote to the Lantern that "victims there will be until men are willing patiently to analyze their problems instead of abdicating reason at the first sign of resist­ ance." 84 William G. Thompson could not at the time of the proceedings say very much about the social conflict; he was much too busy and it was also advisable that counsel refrain from general debate. However, as early as January of 1927, he held views much like those which have just been quoted: . . . if we are going to carry on debates in this country about ques­ tions on which men differ violently in opinion, but which must be solved in some way, and the stronger party is going to resort to force instead of argument, we may as well give up our attempt at selfgovernment. The only point is to be frank and honest about it. If we want a government of force, let's say so, and be done with it. If we want a government of reason and argument, let's have one, no matter how painful it may be to us to hear opinions proclaimed with which we don't agree.85 Whether Thompson was justified in applying this judgment to the conduct of the Massachusetts authorities, by implication at least, is a matter for each student of the case to decide.

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13

Social psychology is a well-recognized area of study, although its domain has not been defined with absolute clarity and its techniques are still being developed. In 1927-29, it was even more tentative in nature. Nevertheless, a number of important state­ ments were made about the way in which social grouping affects the thought processes of the individual. A simple but pertinent conclusion was offered by the New Statesman; it felt much as O'Brien did, that Fuller could not possibly take a stand against the majority sentiment in the com­ munity. And it was the easiest thing in the world for him to move in the other direction "because he knew himself to be supported by the blind mass-opinion of American nationalism." 86 Nearly all the psychological analyses are chiefly interested in the element of fear which played so large a part in the case. Harvey O'Higgins, writing on "The Nervous American," admits that America in 1920 was afraid of Reds, but he thinks that one must go further in looking for an explanation of the mass hysteria. He arrives at the conclusion that the country had a vague sense of internal insecurity, perhaps based upon a Puritan neurosis, which made many people feel that the American social order was par­ ticularly vulnerable to attack.87 The New Republic put it much the same way but limited the area: "Boston has a bad conscience; the case is an unliquidated moral issue for that city and for Massa­ chusetts." 88 G. D. Eaton pointed out that the men most subject to this rational failure were the very persons from whom some sanity might be expected: The belief of the Washingtons and Jeffersons—that any man is en­ titled to justice—has given way to a mean and malicious spirit. The curious part of it is that it is most prevalent among the native stock.89 One of the most angry rebukes to the Boston spirit came, rather significantly, from Time magazine, a journal which can hardly be accused of leftist views: After seven years of premeditation, blood was shed beside a so-called cradle of American liberty, Boston . . . [after] a reprieve of which the melodrama was a cheap insult to whatever dignity human life may have, virtually mumbled: ". . . Live on for twelve days longer. Our mind is not quite made up." 80

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H. G. Wells had a curious experience in writing about the Sacco-Vanzetti case. He had been engaged to furnish a series of articles on world affairs for the New York Times. In the spring of 1927 he submitted his weekly essay under the title, "Outrages in Defence of Order: The Proposed Murder of Two American Radicals." It was not printed: Wells says that "America . . . made one magnificent cut of the whole article . . . , paid for it without complaint and did not print a line of it." 81 On October 16, after the executions, the newspaper did use the same writer's "Wells Speaks Some Plain Words to Us." 92 Both essays were printed in book form in a collection of 1929, entitled The Way the World Is Going. This episode, and the similar experience of Broun with the World, are incidents in a battle which continues to be fought to the present day. A critic of the social order has, up to now, negative free speech; he cannot be made to say that which he does not want to say. He also has a limited degree of positive free speech; he may say anything to which his employer does not have a fatal objection. The writer does not have com­ plete freedom to speak; the publisher can pay him and junk the manuscript. On this one point, at least, the Marxian criticism is entirely correct; ownership of the instruments of production— in this instance, instruments of public information—is in total control of what the people may have. And no matter how strongly a writer may desire to have his views known, and without regard to the strength of the public appetite for those views, communi­ cation will not be established if it is opposed by the one man or interest in the community which owns the newsprint paper and the presses. The first of the Wells articles was a simple but strongly worded condemnation of the proceedings as "legal fiction"; Sacco and Vanzetti are being executed because of their views. The second, the one which the Times printed, deals more directly with the psy­ chology of the American people. He defends . . . the right of British and foreign people generally to have and to express opinion about American affairs. . . . Europe is not "re­ trying" Sacco and Vanzetti, or anything of the sort. It is saying what it thinks of Judge Thayer. And such opinions, he holds, are justified by the anger and bad

temper which so obviously dominate the American scene. Fur-

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thermore, there is no use beating about the bush and avoiding a judgment on the culture of the United States: The friendly European critics . . . are impressed by the facts: First, that the elementary education of the American citizen is cheap and poor and does not fit him for his proper r61e in the world; next, that the methods of democracy used by the States are crude and ineffective and that they hamper the moral and intellectual development of what is still the greatest, most promising of human communities; and, thirdly and finally, that the American sense of justice is clumsy and confused.83 When one reads such unpleasant words, it is necessary to distin­ guish between their appropriateness and the feelings they arouse. The writer knew that his unpleasant judgment would arouse antagonism; presumably he thought that a policy of "ferment" offered a forlorn hope for the education of transatlantic society. The circumstances attending the publication of Edna St. Vin­ cent Millay's "Fear" are very interesting. The prose-poem itself will be discussed in the part of this book devoted to literature; here it is only necessary to observe that it considers the hysteria attending the case, and finds in that emotional convulsion the effective cause of the executions. "Fear" was printed in Novem­ ber, 1927, in the Outlook and Independent; forty letters, nearly all in protest, soon lay on the desk of Ernest H. Abbott, the editor.94 Abbott received a letter from a friend characterizing the Millay article as "fit only for a most rabid Socialistic magazine"; the cor­ respondent recommends that the editor read Goodwin's Red Peril. Abbott wrote back: You read in Edna St. Vincent Millay's article a meaning that I do not find there. You think she ridicules honor, purity, courage. I think she is holding up to scorn what she regards as false concepts of them. You think she makes game of justice as a graven idol. I think she is pleading for a justice that she regards as real instead of a mere formal image of it. The editor was also of the opinion that the Goodwin speech strongly corroborates Miss Millay's argument; he points out that Goodwin attacks the men as Reds and not as murderers. The whole batch of letters of protest were turned over by the Outlook and Independent to Joseph Jastrow, a professionally

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trained psychologist. His analysis is comprehensive and penetrat­ ing.95 He begins by quoting characteristic phraseology: "so stupid an expression [of opinion]," "vicious, false, and wicked article," "an insult to thousands of readers," "absolutely inexcusable," "a weak sob-sisterly effusion," "a ludicrous piece of nonsense." Jastrow states his own position: I may be showing my own prejudice in favor of a rationalistic attitude in holding that where the connection of premise and conclusion is so imperfect one should expec't as the most general reaction that of sus­ pended judgment. . . . For prejudice is not, as commonly conceived, a crude insensitive blindness. . . . Prejudice is formed of subtler stuff; it intrudes as a slight, subdued, often subconscious deviation of the logical eyesight that incapacitates it to see rightly. . . . [All of us are prejudiced, but] the dangerously prejudiced man is he who gives in to his inclinations not only with unrestraint but with exultation. He goes on to say that whether Sacco and Vanzetti were innocent or guilty may be put aside for the moment; the present fact is that the protests against the Millay article are at least as hysterical as she is accused of being. "The threat of cancellation of subscrip­ tions as a form of protest suggests a childish petulance congenial to hysteria." And the reiterated suggestion that America "get back to business as usual is an indication of defective mental hygiene." Jastrow is quite conscious of the necessary and often noble part which emotion plays in human affairs; the problem in situations like the Sacco-Vanzetti case is to see that it does not invade the sphere of judgment; if it does you have only an uninformed mass feeling which can be very dangerous. He quotes from a letter written by an "able legal authority": "There is no system of procedure in the world that could not have been and would not have been, all other circumstances being the same, used for the execution of Sacco and Vanzetti. There is no system of procedure in the world that could not have been and would not have been used to free them, if that had been the will of the com­ munity, and this refers not only to what Judge Thayer might have done but to what the Supreme Court of Massachusetts might have done." This conclusion, says the writer in the Outlook and Independent, "goes beyond what the psychologist would venture in estimating the r61e of cumulative private opinion [to be] . . . as against

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the objective procedure of the courts, ..." but to the degree that it is true it represents a very serious problem. The whole episode of the protest letters against "Fear" is per­ tinent to the inquiry undertaken in this book. Whatever one may think of the elements in the criticism offered by the magazine readers, it leaves little doubt as to the way in which solidarity of spirit can come into being, quite apart from knowledge or under­ standing. A good case might be made for the designation of John Dewey as the chief single intellectual force in western civilization of the twentieth century. His opinion on the Sacco-Vanzetti case should therefore be of some weight; it is embodied in an article, "Psy­ chology and Justice," which appeared in the New Republic of November 23, 1927.86 That issue [of innocence or guilt] is now merged in a larger one, that of our methods of insuring justice, one which in turn is merged in the comprehensive issue of the tone and temper of American public opinion and sentiment, as they affect judgment and action in any social question wherein racial division and class interests are involved. [He proposes to consider] . . . the psychology of the dominant cul­ tivated class of the country as revealed in the report of the Fuller advisory committee . . . the state of mind that must be widespread in the educated leaders of the American public in the third decade of the twentieth century. After the fashion of any good scientist, Dewey gets down to specific issues. He begins with the observation that the Committee accepted the "cumulative principle" for its guidance; that is, the relevant information was to be regarded in terms of its total weight as well as with respect to the validity of its parts. However, . . . the cumulative principle is not only disregarded; it is deliberately departed from. Why? Men, especially men of disciplined and culti­ vated minds, do not reverse their criterion and procedure without a cause. [Why did they not consider] the main issue . . . whether, taking all considerations together, there was or was not reasonable ground for doubt as to a miscarriage of justice in case of the men's execution. He sees a second difficulty in the fcehavior extralegal committee.

of an admittedly

Why was it, then, that they acted as a jury and as a court, and in doing so adopted strictly legalistic methods of reasoning even to the

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point of virtually throwing upon the defense the burden of showing that there was a certainty, not a reasonable possibility, of a miscar­ riage of justice. . . . Why, after questioning the jury, did the Committee come to the conclusion that those men were "immune to the prevailing contagion of 'fear and credulity,' and immune although they had not 'little evidence' but convincing proof of 'dangerous opinions' "? Last, how can one account for: The committee's belief that the admitted bias of the judge outside the court-room was dropped as he might shed an overcoat when he donned judicial robes, [such a belief] evinces an equal disregard of elementary psychological factors. The answer to these and other important questions can be found, according to Dewey, only in a recognition that the Ad­ visory Committee had an "antecedent attitude." He does not state what this attitude was, in so many words; he is content to record "a sense of humiliation . . . akin to that of guilt, as if for a share in permitting such a state of mind as is exhibited in the record to develop in a country that professes respect for justice and devotion to equality and fraternity." In this chapter the views of the social critics have been pre­ sented with considerable fullness; such evaluation of their re­ marks as might be helpful was introduced at each particular place, and no general summary is needed. The period from August, 1927, to August, 1929, developed adequately the social signifi­ cances of the Sacco-Vanzetti case. In the next chapter it will be possible to bring the story down to the present in relatively brief compass, and then to recapitulate the material of all of Part II in terms of the legacy of Sacco and Vanzetti to the people.

Chapter XIII

THE LEGACY OF CONFLICT 1 AFTER 1929 the Sacco-Vanzetti case is no longer a self-continuing action; there are sporadic outbreaks but its dynamic force is largely ended. On the other hand, legal writers maintain their interest, social historians frequently refer to the event, and the literary world becomes increasingly prone to draw upon the rich and complex story. The last official act of the Sacco-Vanzetti Defense Committee was the publication, in August, 1930, of the Sacco-Vanzetti Memo­ rial Bulletin; this was the nineteenth in the Official Bulletin series. Its sixteen quarto pages present very interesting material: an article contrasting the judicial retraction of the seventeenthcentury witchcraft verdicts with the continued obstinacy shown in this case, a study of institutional rigidity, a discussion of the Canter criminal-libel conviction, a guiding statement for future Sacco-Vanzetti studies, quotations from letters and editorials of current date, poems, a comparison of the case with the MooneyBiIIings affair, and a list of the speakers at the memorial meetings which had been held since 1928. The final act of violence came on September 27, 1932, when an explosion wrecked the garage and part of the residence of Judge Thayer. The cause was almost certainly a bomb, but no more can be said or guessed about its planting than is possible about previous explosions. Thayer was not injured; however, the shock may have weakened the elderly jurist, who died seven months later. In September, 1936, Harvard University held its tercentenary exercises. An elaborate ceremony extending over several days drew to Cambridge representatives of the intellectual leadership of all the world. The whole affair was conducted with realistic solemnity and a recognition that such an event must, fundamen­ tally, constitute a challenge to further achievement. A number of persons felt that there was obvious incongruity

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between the dignified position which Lowell held at the exercises and the part he had played in the Sacco-Vanzetti case. Six Harvard alumni—Heywood Broun, Gardner Jackson, Quincy Howe, John Rothschild, Varian Fry, and John Herling—are said to have sent out a private inquiry among liberal alumni of the university asking whether it would be appropriate to unveil a surprise "tes­ timonial" to Lowell. Its purpose would be to mark "for all time the worth of the public service of A. Lawrence Lowell in safe­ guarding American liberties." 1 The suggestion took shape in the form of a pamphlet; 5,000 copies were printed and many were sent by mail to the visiting dignitaries. Immediately after the date of release, the sponsors charged that university officials had interfered with the delivery of first-class United States mail; many of the copies were said to have been seized at the ultimate places of delivery in the college buildings. Complaint was made to the postal authorities, an investigation was promised, but no finding was ever made. Reporters immediately sought the reaction of Alvan T. Fuller to this event; "according to press dispatches, on learning of the pamphlet, he characterized its sponsors as so many 'damn fools.' " Some newspapers objected to his remark. The Washington Post gave its leading editorial to the episode: That comment rudely jars the whole tercentenary picture, the more so because of the emphasis which has been placed on the virtues of truth and, inferentially, its hand-maiden, tolerance. Few more stirring challenges to free inquiry, at least in its legal and social aspects, have been brought forward in recent days than the Sacco-Vanzetti case. . . . But many felt that the truth was never wholly vindicated [by the Advisory Committee], that free inquiry was subordinated to pre­ conceived ideas. Under the circumstances the challenge of Harvard men whose at­ tention is centered on the negative side of the record deserves a better designation than the work of "damn fools," especially when it is pro­ jected into an atmosphere ringing with disavowals of prejudice.2 Other sections of the press, of course, agreed with Fuller. John Haynes Holmes later referred to "the dreadful invasion of the Harvard Tercentenary." 3 The document, Walled in This Tomb, has no named author; it travels well-worn ground and need not be examined in detail.4 The foreword is chiefly interesting for its statement of the his-

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torical significance of the case; in it "were involved all the con­ flicts—economic, social, nationalistic, racial—which now rage with fearful consequences throughout the world." 8 A study of the Advisory Committee may yield an "awareness of the incredible and destructive twists of men's minds—even the mind of a presi­ dent of Harvard University." One year later, at the tenth anniversary of the executions, friends of Sacco and Vanzetti publicly displayed in Boston a large bronze bas-relief. It shows Sacco and Vanzetti confronted by an arm which holds a balance; the pan marked "law" outweights that marked "justice." The work is powerfully executed and worthy of its sculptor, Gutzon Borglum. An ironic attempt was made to present the plaque to the Commonwealth.6 Harvard is not the only university to have had its peace dis­ turbed by the Sacco-Vanzetti case; sixteen years after the execu­ tions the University of Texas discovered that the Massachusetts malady was contagious. In the fall of 1944 an open breach developed between the Regents of the University of Texas and the President, Dr. Homer P. Rainey. The controversy assumed extraordinary proportions, continued for two years, and became a major political issue for several million people. Dr. Rainey was summarily dismissed, and the administration of the University (i.e., the Board of Regents) was placed on the censured list of the American Association of University Professors. The conflict has ended in a stalemate. Dr. Rainey ran for governor in 1946 and was defeated at the polls; the University remains on the "black list" of the Association. The Regents were of the opinion that President Rainey was un-co-operative, that he had sheltered radical and immoral mem­ bers of the faculty, and that he had never correctly under­ stood his position as their hired agent. President Rainey charged the Board with improper interference in the administration of the University, with suppression of academic freedom, and with denying the right of the staff to carry on legitimate research. The thousand differences of opinion on political, economic, and social matters which prevail in the modern world became tangled in this struggle. It will perhaps be sufficient to indicate that most Texas bankers, lawyers, businessmen, ranchers, and farmers sup­ ported the regental position. The opposition embraced a section of the press, a heavy majority of the University of Texas faculty, the "liberal" elements in the electorate, and the intellectuals.

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Outside of Texas, opinion has been virtually unanimous in hold­ ing that the deposed president was fighting the battle of enlight­ enment and progress against provincial illiterates and the agents of a panic-stricken feudalism. Traditionally, of course, a "foreign" opinion has little weight in our largest state; there, the majority of the electorate would at any time rather be Texan than right. The charge that the Regents were interfering with research brought the Sacco-Vanzetti case into prominence and showed that it could still be a social irritant of great force. A request was made by a staff member for funds with which to carry on a study of the literature of the case; the Research Council of the University twice approved a grant, and in each instance this action was vetoed by the Regents. Such a veto was apparently without precedent in the history of the University. One regent announced that he would never vote tax-payers' money for the glorification of com­ munist murderers. There were other hysterical, inaccurate, and mendacious attacks upon the research project, and—of much greater significance—upon the right of the faculty through its designated experts, the Research Council, to exercise judgment upon the scholarly activities of its members. The Sacco-Vanzetti episode at the University of Texas does not need to be studied in detail to make it possible to understand the nature of the trouble which arose.' The essential fact is clear; the leaders of a nervous and insecure oligarchy would not endorse the study of an event in American history which might have yielded general implications about the failure of authority to act wisely. The twentieth anniversary of the executions was marked by a meeting on the Boston Common and by the publication of a manifesto. The Sacco-Vanzetti Case: Twenty Years Later, accord­ ing to the Boston Herald, was prepared by Gardner Jackson and Professor Arthur M. Schlesinger, Sr., of Harvard; the newspaper also noted that the pamphlet "was based on consultation with authors John Dos Passos and Lewis Mumford but the latter failed to endorse some of its precepts." 8 This document had 150 spon­ sors; no complete list was made public but the press named those whose signatures it deemed important. Many, of course, were individuals who have consistently taken a liberal stand: Albert S. Coolidge, Mrs. William Ripley, Bishop William Scarlett, and Professor Reinhold Niebuhr. But it is interesting to note that many who signed have political reputations: Mrs. Franklin D.

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Roosevelt, Senator Wayne Morse, Malcolm S. Nichols (Mayor of Boston in 1927), Clement A. Norton (member of the Boston school board), Leon Henderson, Franklin D. Roosevelt, Jr., and Mrs. Chase G. Woodhouse (Director of the Women's Division, National Democratic Committee).9 Labor recognized the event. Walter Reuther was among the sponsors of the manifesto. A brief supporting statement by Philip Murray appeared in the CIO News of September 1.10 The public meeting and the speech on the Common were no­ ticed but made no great stir. The meeting was held under the auspices of the Socialist Party of Massachusetts, "in a far more bit­ ter and militant mood than that of the liberal intellectuals." A resolution charged that Sacco and Vanzetti "were murdered by the state because they fought for the freedom of the workers." 11 In The Sacco-Vanzetti Case: Twenty Years Later the authors refrain from arguing the merits of the case. They prefer to stress the implications of the event for the problems of 1947, especially the fact that: "The individual citizen in considerable areas of the earth has become little more than a digit in columns of fig­ ures with which national leaders conduct their war of nerves and their rivalries in military machines and industrial manpower." 12 Further emphasis is given to the fact that Sacco and Vanzetti were not communists, a fact which must be constantly borne in mind in a day when reactionary forces attempt to stigmatize every liberal and individualist as a subversive force. The total effect of the twentieth-anniversary observance was not great; the newspapers gave average coverage but most of the liberal journals took no notice. And it is quite clear that neither organized labor nor the public at large was moved in any vital way. In short, the commemoration was dignified but apathetic.

2 New factual information about the case has continued to come to light; most of it relates directly to the legal history and has already been considered in Part I of this book. A chronological summary will suffice at this point; one publication calls for more extended comment. In 1935, J. D. and C. O. Gunther published The Identification of Firearms from Ammunition Fired Therein; this is a technical ballistic study which occupies an important place in every police

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laboratory. A large part of the book is devoted to the complexities o£ the Sacco-Vanzetti evidence. In the same year, True Detective Mysteries ran a series of articles entitled "The Hidden Drama of Sacco and Vanzetti." They are a collaboration between a profes­ sional journalist, Fred H. Thompson, and Charles J. Van Amburg, who had testified as an expert for the prosecution at the Dedham trial. Apart from thrills, there is some error and a modi­ cum of new information. On March 19, 1938, attorney Herbert Ehrmann was delivering an address in tribute to William G. Thompson, who was dead by that time. In his audience was the very elderly Judge Pierce who had sat on the Supreme Judicial Court in 1926 and 1927. Ehr­ mann had some misgivings about the effect of what he had to say about the Sacco-Vanzetti case: Much to my astonishment Judge Pierce rushed to me at the conclusion of my talk and, with tears streaming down his face, thanked me for what I had said. There was also another occasion in which Judge Pierce indicated the apparent unanimity of the high court in the Sacco-Vanzetti decisions covered considerable dissension, but this was the more dramatic.13 Such an episode does not belong to the legal study of the case, but it certainly has its place in the historical record. The most tantalizing book which has been written about Sacco and Vanzetti is Michael A. Musmanno's After Twelve Years.14 This attorney, now a member of the Pennsylvania judiciary, en­ tered the case in April, 1927. He brought with him both abundant energy and a passionate belief in the innocence of the condemned men; his general activity and his understanding of the Italian people were of great help to the defense. In July and August he was seeing the prisoners three or four times a week. Certainly he was in a position to observe and learn a great deal. Some of his statements are verifiable. One hears that the "strategy board" for the last few days of legal effort consisted of Arthur D. Hill, Herbert B. Ehrmann, Michael A. Musmanno, Francis D. Sayre, Felix Frankfurter, Elias Field, and Richard C. Evarts. These lawyers knew that their efforts were almost sure to fail, but they explored every possible avenue of help. In another place, Musmanno establishes the fact that only in Massachusetts, among all the states, is it customary to place per­ sons accused of crime in a cage while being tried. He develops the

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psychological aspects of this practice, but does not point out that what was standard procedure may not have had much prejudicial force. Other Massachusetts residents had been tried in cages and acquitted. Page after page of Musmanno's book is given to direct quota­ tion of interviews between himself and officials of the Department of Justice, Attorney General Reading, Governor Fuller, and—in a later year—A. Lawrence Lowell. The author's practice raises an exasperating impediment to the acceptance of his material. As­ sume, as one should and must, that his personal and professional honesty has led to an accurate rendering of each of these inter­ views and debates. Virtually everything stated must therefore be true. But there is a fatal flaw; there was no stenographer presentthere is no record. And no man could retain a complete recollec­ tion of so much material in his mind. Therefore, one is left with the belief that almost all of the Musmanno book is entirely ac­ ceptable, but that any one fact or opinion may have been imper­ fectly recorded. With this qualification in mind, the following contributions may be noted: (i) Mr. Farnum, of the Department of Justice, ad­ mitted that Katzmann had inquired about the transmission of money to New York, admitted that he had read the Wigmore articles but not the Frankfurter replies, admitted that there was something unfavorable to Sacco and Vanzetti in the departmental files, but would not reveal it; (2) Justice Holmes told defense counsel that he was "convinced that these men did not get a square deal," but that he could not "undermine the basic prin­ ciples of the separate sovereignties of the State and Federal gov­ ernments"; (3) Fuller said, on August 22, that he would grant a reprieve if Reading recommended one; (4) that at the beginning of Musmanno's plea to Reading the attorney general was queru­ lous, but that he became "somber, almost sympathetic." These scenes, and many others, are of great interest; it is most unfor­ tunate that they cannot be supported by a written record. This same period brings new comment as well as new fact. During the ten years between 1930 and 1940 there were pub­ lished five legal studies of sufficient weight to demand notice. The first, in 1930, was Jos6 A. Martinez's Sacco y Vanzettii un grave error judicial; this study of nearly 400 pages appeared simulta­ neously in Habana and Madrid. The next year saw Osmond K. Fraenkel's The Saeco-Vanzetti Case; it is highly objective and is

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largely devoted to an ordering and exposition of the complicated record; the chief points of legal dispute are stated but not ex­ haustively argued. Herbert B. Ehrmann presented a coherent account of the Medeiros-Morelli phase: The Untried Case: the Sacco-Vanzetti Case and the Morelli Gang appeared in 1933. It led to a review of the book and discussion of the case by E. M. Morgan which is to be found in the Harvard Law Review of January, 1934. Last, there was a brief but significant article by Karl N. Llewellyn in Michael and Wechsler's Criminal Law . . . , 1940. In bringing the legal history up to date it is necessary to say a final word about William G. Thompson, chief attorney for the defense from the fall of 1924 to August 6, 1927. In the first place, a good deal of light can be thrown on the temper of the times by examining the effect which a cause of this sort had upon a man of Thompson's background and temperament. Second, knowledge of the lawyer's experience is of direct value for an understanding of Vanzetti. Finally, there is sentiment involved; when a man displays unusual magnanimity he is due a place in the historical record. The evidence is found in the memorial proceedings conducted before the Boston Bar Association in 1938.15 One learns that Thompson was born in 1864, took his A.B. degree from Harvard with highest honors in 1888, and served as assistant United States District Attorney from 1893 to 1895. He lectured at Harvard for many years on the preparation of briefs. He was honored by the senior vice-presidency of the city bar association, and, even more important, served for seventeen years on its Grievance Committee —from 1927 to 1934 as its chairman. On September 12, 1935, he died. At the height of his powers, Thompson was an impressive fig­ ure, but one with obvious limitations: His presence usually dominated any court room in which he was pleading. This was partly due to his personality but also largely be­ cause of the fact that he was so completely sure of his position. His confidence in himself came only because he never started an argument which he had not already ^subjected to a most exhaustive criticism. Those who saw him in the court room were impressed by his dominant and even seemingly arrogant attitude. Those who worked with him in his office, however, knew him to be the most modest of men when examining a legal problem.18

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Further characterization indicates that he was eager to move the Massachusetts courts in the direction of the English procedural system, and that in his Grievance Committee work he was severe toward uncurbed weakness but sympathetic to "those who through worry or strain had erred and those who were unjustly charged." He was markedly religious, although uninterested in doctrine or dogma. A lay address which he made came to Justice Holmes; that jurist said: "It reaffirms all that I felt when he came before me in the Sacco-Vanzetti affair. His must be a beautiful and powerful nature. I wish I knew him better." 1T All of this helps one to understand the extraordinary scene when Thompson re­ buked the attitude of the Department of Justice in open court. At these same proceedings, tribute to Thompson was paid by Ehrmann, who had been his junior associate in much of the Sacco-Vanzetti work. The testimony is eloquently put and rises above the conventional eulogy: . . . he was and remained to the end, a genuine conservative, believ­ ing that mankind is better served through progress in the existing order rather than by sudden change or drastic experimentation. He had a faith in private property, in the material rewards for effort and capacity, in the church as an institution. . . . But with these beliefs went the assumption that there were certain standards of conduct that differentiated a free society from a dog fight. Those who reached the top in such an order, whether through the acquisition of education, wealth, or power, had a corresponding obligation to use these advan­ tages like gentlemen. . . . It was this faith in the reality of noblesse oblige that was to be undermined by the Sacco-Vanzetti case.18 When he first came into the case he was confident; then, after the January hearings before the Supreme Judicial Court, he began to lose hope. Ehrmann continues: . . . on several occasions he observed that events were moving with the classic inevitability of the Phaedo, little suspecting that he him­ self was destined to give point to the comparison by chronicling his now celebrated last interview with Vanzetti. It mortified him that persons, enjoying all the advantages our civilization could offer, should accept the idea that it was better for Sacco and Vanzetti to die, even if innocent, than for the Commonwealth to admit a mistake under fire. He looked at the world in which he had put so much faith. It ap­ peared prosperous, satisfied, and irresistible. Yet something had gone out of such a society and Thompson knew what it was. . . . Economic formulas for saving society did not appeal to him. People could be

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unfair, cruel and unjust under any system. What was needed most was a fresh appreciation of that forgotten virtue—character.19 These conclusions led Thompson, according to his associate, to undertake a one-man crusade to awaken a sense of public respon­ sibility; "economic and social status had ceased to have any mean­ ing for him and he found congenial minds everywhere." 20 Thompson's temperament and philosophy stand in strong con­ trast to those of Thayer, who so meanly insulted him; they are equally different from the qualities of Sacco and Vanzetti. This separateness constitutes one of the most dramatic aspects of the case. There is an even deeper significance: Thompson may well have been the only major figure in the whole affair to reject philo­ sophic or scientific premises and to hold steadfastly to the classic tradition of private morality. 8 Turning for the last time to the historical and social criticism of the case, one finds after 1929 a marked decrease in the number of comments. However, what is said is still of significance. Opinions hostile to the accused are remarkably scarce, or at best short and irritable. One does, of course, often run into the same kind of thinking that prevailed in 1927. Three years later, the supreme court of California heard the petition of Warren K. Billings for pardon. The majority opinion, reflecting the views of four judges, held: It is fairly inferable from his past and present affiliations that if War­ ren K. Billings did not himself prepare and plant the deadly time bomb of the Preparedness Day disaster, he and his intimate associate and co-defendant Mooney knew and always have known who did pre­ pare and plant that bomb.21 This is a very remarkable statement. If there were facts to prove this knowledge it was the responsibility of the prosecution to pre­ sent them so clearly that all reasonable doubt would be removed. Inference, in the language of most men, does not suggest a line of thought so strong as to constitute conclusive proof. It offers a possible or even probable logical development, but one that falls short of the degree of certainty needed for a capital conviction. As a matter of fact, the opinion just quoted has a familiar ring; it is

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close kin to the "general conspiracy" indictment of the Haymarket Affair. A serious charge was made against Fuller in 1930. He is re­ ported, while traveling in Europe, to have said: Both [Sacco and Vanzetti] were convicted murderers and anarchists. Other countries make short work of such people but I did not uphold the death sentence against them until I had struggled for a long time with my conscience. . . . They belonged to a band of conspirators who attacked peaceful citizens with bombs and dynamite. They were for socialism and godlessness. [After the McHardy explosion] . . . people realized that Sacco and Vanzetti were criminals.22 There are two grounds for accepting this statement as accurately reported: Fuller did not deny it when it was printed; and it con­ tains a reference to his conscience which brings to mind the con­ versation reported by O'Brien. This is not enough proof; doubt as to the statement is stronger. Although presented as a direct quotation, it is a report of a report without a verifiable written source. The reference to bombs and dynamite is so far-fetched that there is no reason to believe it of the well-informed Fuller. The final phrase is so self-damning in its illogicality that only a fool would have made it. The former governor may have had such ideas in his head in 1930, but it looks very much as if he was deliberately reported to his disadvantage. For some reason the Paris edition of the Herald Tribune has traditionally been reactionary in tone. The publication of the Letters of Sacco and Vanzetti led the newspaper to remark: "How far these documents have been dressed up or even forged by per­ sons interested in drawing from them either moral or money profit can only, of course, be surmised." 23 Viking Press, the pub­ lishers, immediately threatened suit. The final result was the publication of a retraction: There was no intention on our part to imply that the editors and pub­ lishers had been anything but meticulously accurate in compiling the letters before them. While in our opinion no such inference could properly be drawn from the editorial as it appeared, we are glad to make our intentions plain by at this time withdrawing the statements referred to.24 This episode has some educational value; it throws further light on the word "inference"; apparently from "forgery" one may infer "meticulously accurate" editing.

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Further comment by defenders of Sacco and Vanzetti has come from mixed radical-labor sources, the press, informal commenta­ tors, and historical chroniclers. In 1930, the International Labor Defense still found it useful to call for Sacco-Vanzetti memorial demonstrations as an aid to other political victims who were in jail. 28 Two years later, Red Boston, issue number one of the organ of the John Reed Club, gives several pages to the significance of the case; this was a short­ lived communist magazine.26 A socialist group in 1936 printed a flyer entitled Have Sacco and Vanzetti Died in Vain?27 In the same year "We Never Forget" was the leading article in the August issue of the General Defense Bulletin.28 Vito Marcantonio wrote Labor's Martyrs in 1937; he was at that time president of the International Labor Defense; the preface to the pamphlet ft by William Z. Foster.29 This group of publications suggests a con­ tinuation of formal interest in the case by predominantly com­ munist organizations, and an almost complete absence of further reference by the organized labor press. Newspapers and magazines with a circulation among the gen­ eral public appear to have fairly well standardized their opinion about the case, and it is somewhat more sympathetic than one would have thought likely. Liberty ran an article over two issues in 1930; most of it is devoted to a mere telling of the story, but the introductory comment is both emphatic and frank: In several ways [this case is] . . . the most important court proceeding in the history of the United States. . . . Three aspects of the trial will not soon be forgotten: first, the honest doubt of millions of persons as to their guilt; second, the sad commentary of the proceedings on the course of justice in the commonwealth of Massachusetts; and, third, the profound and impassable cleavage between conservative and radical minds that resulted from the outcome.30 "Conservative and radical minds" are a somewhat easy pair of abstractions, and yet in the end they may be a more accurate defi­ nition of the conflicting extremes than that afforded by the funda­ mentally economic terminology of the class war concept. A Scripps-Howard syndicated editorial of the 1930 period sug­ gested a new emphasis; it says that the writers of the Constitution were genuinely moved by the spirit of justice, but that the later history of this country furnishes proof of a growing apathy; this is seen in the Sacco-Vanzetti case where the prevailing attitude

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was that "we're tired o£ these foreigners coming in and always stirring up trouble." 81 At almost the same date a letter was re­ ceived by the Houston Press, and the newspaper thought it of sufficient force to print it as an editorial. It states in simple terms a view which had been elaborately developed by the publicists of the defense in previous years: It is the Fickerts [district attorney in the Mooney-Billings case] and the Thayers who constitute the real menace to our democratic form of government. . . . I am certain you will in time . . . [become aroused] to the danger of having one brand of justice for men with whose social theories we agree and an entirely different brand for those whose opinions are repugnant to us.32 A pulp weekly, Novelos y Cuentos, ordinarily ran to prose fic­ tion; it probably had a fairly wide circulation, as it was published simultaneously in Madrid, Habana, and Buenos Aires. In 1932, it devoted one of its issues—31 pages of triple column—to "Un error judicial; el proceso Sacco y Vanzetti." 33 William Allen White in 1920 protested the Red raids, and in 1927 was shocked by the rampant hatred in New England. On the day following the executions he had again lamented the "ter­ rible injustices . . . done at that time [1920], social, political, economic, by the suspicion and credulity of disillusioned people that believed nothing and suspected everything." Nevertheless, because of the findings of the Advisory Committee, he said "Sacco and Vanzetti were probably guilty." His last word on the case, in 1937, was a somber retraction: I am now satisfied that Sacco and Vanzetti were innocent of the crime for which they were executed. Their execution was a crime for which America lost prestige in the eyes of millions all over the world.34 Heywood Broun was not done with Sacco and Vanzetti. In 1930 there was a fuss at Harvard over the low pay of the college scrub­ women; the university attempted to solve the problem by dis­ charging the women and hiring men. Broun emphasized his old grudge: "In my opinion Mrs. Donahue has done rather more to tidy up the place than even A. Lawrence Lowell himself. She left no dark and clotted stains behind her." 36 This was clever but no more than a display of anger. Later observations have more weight: The Sacco-Vanzetti case moved me to write the first violent newspaper pieces I had ever done. . . . Never since that time has it been possible

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for me to get back entirely into the mood of the kindly commentator on the less important phases of the passing show.36 In 1938 Broun was looking over some of his old columns; he confesses to an error: . . . for eleven years I have not written about Sacco and Vanzetti nor even talked much about the case. There have been meetings for com­ memoration, but it seemed to me that there was small point in turning back the page. For all its ills the episode had ended. [He has been in Washington and heard or read J. B. Mathews, "Cotton" Ed. Smith's speech, Walter George, and Gene Talmadge.] Now I know that I was wrong, for in Washington I saw the shadow of the dead hand dance upon the wall. . . . Fingers of bone clutch at the bridle of progress. It is death condemning life.37 And finally, if one may judge the temper of the times by trivia, there are the little evidences. On June 25, 1946, a police officer named E. J. Vaughan asked to be retired after many years of service. The name is not widely known; it may not even mean much to those interested in this case; but the Associated Press dispatch tells the story—nothing of the man's service record, his family, his success or failure—only, and not very accurately, that he was "the policeman who stopped a trolley to start the worldstirring Sacco-Vanzetti trial." 38 4 Historians of a more self-conscious and professional type have also been at work fixing the significance of the case. One of the best brief statements is by Malcolm Cowley. In his "Echoes of a Crime" he is particularly interested in the part played, by the American intelligentsia. This group, which he defines as the people who think independently, did not really come into being until about 1900; in the 'twenties they were terrified by the post­ war reaction and its climax in the Saeco-Vanzetti case. He observes that the defense was conducted by intellectuals rather than by the labor unions. After the executions the newspapers soon dropped the matter, and the authorities hoped for a forgetful silence. "Yet the effects of the Sacco-Vanzetti case continued to operate, in a subterranean style, and after a very few years they appeared once more on the surface." 39 Cowley thinks that the movement of the intelligentsia toward the left during the depres-

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sion was a logical sequel to the case. Much of this is conjecture or at least only hypothesis, but it has a very definite bearing on the legacy of the men to American literature. The New Republic, on the tenth anniversary of the executions, was openly disheartened about the aftermath of the case: the historical record compels the journal to say "that Sacco and Vanzetti died in vain so far as the lesson to America is concerned." 40 It points out that there have been no changes in the law (this was to come about two years later), and no signs of contrition by the authorities. The only positive good may have been the pre­ vention of similar cases. One contrary sign should be taken into account in weighing the pessimism of the view just expressed. The college teachers of America are generally well informed about the case and fre­ quently give judicious and objective expositions of the whole affair. More important than this is the fact that these teachers are often confronted by widespread student curiosity. The cause of this inquisitive spirit is too elusive to pin down very exactly. It may lie in the popularity of Winterset and The Male Animal as plays and moving pictures, or in the fact that the widely used American Issues anthology and the popular Treasury of the World's Great Letters offer several specimens of the writing of Sacco and Vanzetti. Foreign comment on Sacco and Vanzetti has declined markedly in volume. It will be interesting to observe to what degree the politically left governments of Europe find it to their advantage to revive the case. We may even witness a more permanent bap­ tism of the intersection in Paris which, for a short time in 1927, was informally known as "la Place Sacco-Vanzetti."41 Certain kinds of books have a special significance because of the frequency with which they are consulted or because of the fact that they are so obviously central in the literature of their subject. Three such works will bring us as close as we can get to what will probably be the standard brief judgment on the case. Frederick L. Alien's Only Yesterday is an informal and chatty commentary on the 1920's; the fact that it does not pretend to be scholarly has not prevented its becoming a popular guide. In Allen's treatment of the Sacco-Vanzetti case he tells how inter­ national agitation made it a "cause celebr£ [sic]," and indicates his belief that the character of the men was incompatible with crime. He says the ultimate division was: "between those who

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thought radicals ought to be strung up on general principles and those who thought that the test of a country's civilization lay in the scrupulousness with which it protected the rights of minor­ ities.42 After the executions, as the writer sees it, the people turned back to their interest in Lindbergh and the stock market. Another book at present occupies a relatively quiet place, but will probably in time become a constant source of reference. It is Massachusetts: a Guide to Its Places and Its People43 This is a unit in the American Guide Series, which were written and compiled by the Federal Writers' Project—one of the most pro­ ductive of the New Deal experiments. There are two important statements about the case. The first is to the effect that: "It was widely believed that, although legal forms were observed, the determining factor in the case from start to finish was the affilia­ tion of the two men with an unpopular minority political group." 44 This is followed by allusions to Maxwell Anderson's Winterset and the pamphlet Walled in This Tomb. Later, it is said that: The injection into the trial of political considerations, the quality of the testimony, the attitude of the judge, the dragging out of the trial over six long years aroused a world-wide storm of denunciation from pulpit and press, resulting in the appointment of a commission. . . . But ten years after the case, a play based on it won the Pulitzer prize, and a brochure on the report of the Lowell Commission was circulated at the Harvard Tercentenary Celebration in 1936. "Though the tomb is sealed, the dry bones still rattle," said Heywood Broun.45

These statements brought indignant comment from Massachu­ setts authorities. There were calls for a book-burning and an attempt to have Washington suppress the volume.46 Other ele­ ments in the guide also stirred up anger: skeptical statements about the standards of labor in the state and an unpleasant ac­ count of the 1912 Lawrence strike. Clearly, the authors were of a pugnaciously liberal temper and had no objection to ruffling the general public conservatism. On the other hand, this was a large book and the pages objected to are a very small part of it. Nothing happened; memories were short, and peace returned. Last and most important among these historical reference works is the Dictionary of American Biography." The volume which includes the biography of Sacco and Vanzetti appeared in 1935. The author of the article was Sylvester Gates. His sketch is a mas-

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terpiece of accuracy and condensation. In outline it covers these matters: I. The trial: consciousness of guilt, identification. Little is said about the ballistic testimony. Note is taken of the fact that no money was traced to the men, that they were not adequately con­ nected with the presumed murder car, and that they had good character records. II. The appeals: the cross-examination of Sacco, new evidence, the Medeiros confession. III. The background: the Red raids. IV. The Advisory Committee report: doubts raised by its nature. V. The Letters: "Unless they can be thought to have been deliberately con­ cocted for the purpose, these letters may be thought to provide some psychological confirmation of the material evidence against [Vanzetti's] having committed a murder for profit. . . ." VI. Political import: "Communists came to value the case as a proof of their thesis that no 'Capitalist' society can afford justice to its opponents in the class war." The substance and the tone of an article in such an authorita­ tive and universally consulted work is an important guide to public opinion. Experts consult treatises, and ultimately their views filter out among the general public. But each day, through­ out the years, thousands of persons turn to dictionaries. 5 The use of the Sacco-Vanzetti case in American literature in­ creases in these years. The verse, which was an immediate response to the event, comes to an end, but it is followed by an important play and a number of significant novels. Lola Ridge's "Three Men Die" appeared in the poet's Dance of Fire in 1935. This is probably the most powerful treatment of the theme to have appeared. It successfully unites a consideration of the public attitude and an understanding of the quality of the men; the language is of the first order. The Anderson-Hickerson play, Gods of the Lightning, was pub­ lished in Berlin in 1930 and in Madrid in 1931. Late in 1935, Anderson's Winterset offered a free treatment of the moral issues involved in the case; this verse play won the Pulitzer prize. Public

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irritability over Sacco and Vanzetti furnished the climactic inci­ dent in Thurber and Nugent's The Male Animal, produced in 1941. The two latter plays were reworked for the screen and in that form were notably successful. Miscellaneous literary use after 1929 includes the printing of selected Sacco-Vanzetti letters in anthologies of literature and historical readings, the writing of a Harvard prize essay, and—in the spring of 1947—a radio play. Two of the nationally circulated picture magazines have run illustrated articles on the case. Parallel to literature, as an allied form of imaginative treat­ ment, are the series of twenty-three gouaches on the case by the prominent artist Ben Shahn. These were exhibited in April, 1932; they are referred to in the Magazine of Art in 1944. But the chief literary use of the case is in American fiction. Five novels draw heavily on Sacco-Vanzetti material, and all of them are works which demand serious consideration. They are Nathan Asch's Pay Day (1930), Bernard De Voto's We Accept with Pleasure (1934), Dos Passos's The Big Money (1936), Ruth McKenney's Jake Home (1943), and James Farrell's Bernard Clare (1946). Incidental reference to the case is made in other American novels, but the only foreign treatment in fiction is of minor importance. 6 With the material of Chapters VII to XIII before us, it is now possible to state in broad terms the nature of the legacy which Sacco and Vanzetti left to the American people. This can best be done by naming the legal problems of the case and seeing exactly what the public made of them, then by observing the new and primarily social issues which arose through the years, and finally by answering the question of ultimate significancecould these men, and the society which willed their death, have been saved from irremediable and catastrophic error. The trial and the subsequent legal proceedings raised seven major problems to which the public reacted with varying degrees of interest and intelligence. These are: i. The problem of the identity of the murderers. The prosecu­ tion made such a poor proof at the trial that even Judge Thayer felt compelled to point out that identification had been of sec­ ondary value in establishing guilt. But there was an enormous

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volume of such testimony and it may well be that it profoundly influenced the jury. The popular defense, carried on in debate outside of the courtroom, put a good deal of emphasis on the weakness of the identification, but the public at all levels of in­ terest showed only mild concern about this problem. When it came before the supreme court and the Advisory Committee, critical intelligence broke down; it was easily passed off as "a matter for the jury." The Committee report is inadequate and prejudiced on this matter; in detail after detail one meets simple affirmation of belief in the identification witnesses; one new and clearly worthless witness (Carlotta Tattilo) is heard and held credible. The conclusion must be that the identification of Sacco and Vanzetti as the South Braintree murderers held good for reasons other than its demonstrable worth. 2. The problem of the guilty behavior of the accused men. The question of consciousness of guilt offers one of the most confused and difficult issues in the trial; Sacco and Vanzetti were victims of a paradox. The less they said about their radical beliefs, the more criminal their behavior was bound to seem. And by speaking, while they might give innocent explanation of their conduct, they could not avoid exhibiting personal qualities which would be distasteful to the jury. After the trial this problem was debated by the public to some extent, but its inherent logical complexity could not lead to any successful general verdict. The supreme court and the Advisory Committee were in a very different posi­ tion; the members of those two bodies could and did understand the significance of Katzmann's cross-examination of Sacco. They knew that one single element of direct proof that he had inflamed the prejudices of the jury would demand a new trial, even under the most legalistic interpretation of the law. There was no such proof. These men of the judicial and lay review bodies also knew that there was every reasonable presumption of prejudice having been aroused. They were well aware that if they recognized that presumption it would likewise be necessary to give a new trial. They refused to make that admission; and their refusal led them to sophistries of so outrageous a nature that the defense was led to use the term "judicial murder." 3. The problem of the ballistic evidence. The trial failed com­ pletely in its attempt to develop the significance of this body of

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evidence; the subsequent technical examinations brought further contusion. What the jury thought of the ballistic evidence no one knows; they must have had an opinion of some sort.48 One can, however, characterize the worth of that opinion; it was negligible because the scientific techniques upon which it was based were in a rather primitive stage, because there was no effec­ tive procedure for the education of the jury to an understanding of those techniques, and because the use of expert testimony was fatally and illogically involved with the "adversary concept" of a trial at law. Afterward, the public, under no responsibility to consider such evidence, largely neglected it. The reviewers of the case considered it, as it stood in the record, but did not go into its inherent weaknesses as a type of evidence. 4. The problem of the incomplete case against the men. Im­ portant questions which a reasonable man might ask were left unanswered by the trial. What gun fired five of the six bullets found in the victims' bodies? Did Sacco fire with a gun in each hand? What became of the money? Why did the accused men show no sign of any change in their way of life? What is the sig­ nificance of their crime-free personal record? Why is there no evidence of their having associated with known criminals? Who were the other three bandits? Where were they? Putting aside the Medeiros confession, what could be said of the aptness and completeness of the Morelli gang hypothesis? These questions were raised by the defense but they were not pugnaciously pressed home. That should have been done. It is true that even if each one had been answered to the advantage of Sacco and Vanzetti it would not have proved them innocent. That, however, was not what was needed; it was the business of the prosecution to make a case be­ yond reasonable doubt—and the force of these questions in raising such a doubt is hardly likely to be denied. In the end there was so little agitation along these lines that the Advisory Committee felt obliged to answer only the one which had come to them through the Medeiros confession. Their answer was grossly inadequate. 5. The problem of an inadequate appellate procedure. This problem developed after the trial and was recognized to exist by all but extremely hostile persons. The appointment of the Ad­ visory Committee is in a sense an admission of this defect in the

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judicial structure. Finally, after the passage of years, the pro­ cedure was appropriately corrected. Nothing, however, could be done in time. A change while the case was under review would not necessarily have been an admission that Sacco and Vanzetti were being unfairly tried, but every single person interested in the case—on whichever side he stood—would have felt this to be so. The social order has seldom been willing to alter the form of a sacred institution in time of crisis. On this issue Sacco and Vanzetti won out, but after their death. 6. The problem of a prejudiced judge. The accused had the misfortune to fall into the hands of a man who should not have sat upon the bench. This, of course, was in no way unusual. Each of us, in his daily life, finds himself judged by persons who have power over us and who are unfitted for the authority they exercise. On one occasion a stupid president will rebuke an intelligent vice-president; on another, a crude parent will scold a sensitive child. These are the hazards of life. With Sacco and Vanzetti it was simply worse than usual; their judge had great power to de­ cide whether they should live or die. The essential problem is not what Thayer did—because his conduct was by no means excep­ tional—but rather what society did about Thayer. The counterstorms of indignation and defense on this issue are among the most violent of the whole affair. This was rightly so, because here lay a fundamental social challenge, greater in force than any of the strictly legal questions. Would the people, when presented with proof, recognize the common phenomenon of personal fail­ ure in public office, and take steps to avert the fatal result of that failure. The public, the supreme court, the Governor, and the Advisory Committee, refused to accept the challenge. By their decision, they took a long step toward validating an authoritarian way of life. Sacco and Vanzetti died; the people of Massachusetts still live under a system which has their case as historic support for the view that the Commonwealth can do no wrong. 7. The problem of a fair trial. This is the broadest and most important of all the questions raised by the proceedings. Only incidentally does it have to do with Katzmann's cross-examination of Sacco, or Thayer's prejudice, or a dozen other specific matters. It raised the broadest legal question: taking all things together, is this the kind of record our courts wish to write? Does it repre-

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sent a reasonable approximation of justice by the procedure of the law? And then, when this question came before the public, it rose to the level of an issue in public morality: is this the kind of record citizens desire their courts to write? Did the people of Massachusetts feel that they could approve the execution of the men, in the light of all the evidence relating both to the crime and the way in which the men were tried, and live at peace with their conscience? Fuller, Lowell, and Grant have answered forthrightly for themselves. The people of the community did so implicitly at that time by their general acquiescence; whether they will always feel the same way is a question to which the answer lies in the future. 7

The more general social problems were not less important than those which were closely bound to the record of the case. The first of these, the contradiction between a verdict of murder and the character of the men, will be considered in the biographical chapters. The second is the problem of mass hysteria, and the third is the development of a serious cleavage in society. The most obvious quality of public response to the case is its emotionalism. On the side of the defense it led to some useless sentimentality, which may have done no harm, and to a danger­ ous practice of provoking the opposition. The fact that the prac­ tice was dangerous does not brand it as unwise; name-calling and the exposure of relevant and irrelevant weaknesses in the majority sentiment may have been good tactics. But it was a hazardous course to pursue. It is significant that the Defense Committee, which had the best knowledge and the most diverse advice, gen­ erally followed a dignified and even conciliatory policy. The emotionalism of the hostile majority was of a different kind. It was based on a mixture of willful blindness to the facts, a dislike of a difficult problem, and a very genuine fear that a granting of mercy would be yielding ground to an unscrupulous enemy. The nature of that enemy was not clearly understood, but it was real enough. The United States, and New England in particular, was not afraid of immediate· armed attack by Italian anarchists or Russian communists. What was felt, and felt rightly, was that the whole of modern civilization was approaching a point of violent transition in which existing social patterns, and even human lives, might be fearfully threatened. The years to come

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were to attest to the reality of this approaching danger. And, as H. G. Wells pointed out, American education had been too crude, too undiscriminating, to make possible a reasonable atti­ tude. In the Sacco-Vanzetti case our culture lashed out blindly and, in killing the men, wounded itself deeply. Since there was a tangible issue before the people, they divided. And since society was not anarchic, the division expressed itself in the positions taken by various groupings. The final evaluation of those positions is now in order. Philosophical and theoretical radicals were glad to know of Sacco and Vanzetti and proud to be represented by them. From the standpoint of their hagiology they chose well, but they could do little to assist the imprisoned men. Great discrepancy has always existed in the United States between the presumed and actual potency of the true radical. The few thousands who were really kin to Sacco and Vanzetti were not of much help. The political groups of the left had their origin in radical theory but were actually quite separate in both interest and pro­ gram. For all practical purposes, the left in this case meant the communists. They advocated mass uprisings, a general strike, and—by implication—violent interference with the ordered proc­ esses of justice. Some communist units did rise up and leave their work—briefly and ineffectively. They did not, as far as we know, practice violence. They accomplished nothing. This was not because of their numerical weakness; a few men can always lead a host if the multitude is agreeable to being led. The real question about the communists is why they had so little influence. This country is founded upon a revolutionary principle and act. It now has a government which must by the institutional habit of all governments resist attacks from without and within. Its authority is not likely to be offered violence as long as it con­ forms to the popular idea of democracy. If, however, the govern­ ment becomes a tyranny, it will probably meet opposition. There is nothing in our law to prevent a private citizen shooting a policeman who is about to murder him; nor is there anything in our concept of the state to prevent the whole populace rising in arms against governors, presidents, congresses, and legislatures if those authorities violate the Constitution and the laws which they are sworn to uphold. This is where the communists went astray. They did not understand that the American concept of revolutionary action has a historical basis; the people have risen

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in political rebellion only against overt tyranny. The execution of Sacco and Vanzetti was not oppression of that kind. What the communists were really convinced of was that this case was an example of concealed tyranny; this belief was of course based upon the concept of the solidarity of the propertied inter­ ests, and the inevitability of the proletarian revolution. This may or may not have been true; Sacco and Vanzetti may or may not have been victims of covert economic oppression. But one thing is certain, there was not much point in taking one's stand upon a revolutionary theory which the public did not comprehend, and appealing to that public in language that was associated in the American mind with a different kind of rebellion. The silence of the church rested, one may assume, upon the belief that the guilt of Sacco and Vanzetti was primarily a secular problem. It is doubtful whether the church was equally justified in its silence upon the behavior of society in the case. The legal profession suffered a most embarrassing division. It was evident that many of its scholars and teachers believed that injustice was being done. On the other hand, the practicing stu­ dents of those teachers, a group several hundred times as large, were strongly of the opposite opinion. The causes of this separa­ tion are not pleasant to contemplate; but since they relate to the whole problem of the position of the legal profession in society they need not be explored here. Public opinion has been analyzed as the evidence was presented. Since it lacked organization or authorized spokesmen it can best be restated in terms of the second general social phenomenon of the case—the deep cleavage between two kinds of persons. On one side are most of the native-born, the rich, and the con­ servative. Opposed are the alien stock, the poor, and the radical. On one side are the stupid, the emotional, and the innately crude. Their opponents are the educated, the rational, and the men of sensitive disposition. But these positions hold true only of most persons in each single group. The classification in no way makes it likely that because an individual was one of the rich who op­ posed clemency, he was therefore also stupid, emotional, and in­ nately crude. An infinite variety of combinations is possible in so large a series of pairs, and all of them existed in this case. The analysis of public opinion cannot tell us where any one man stood; it merely states the impact of the case upon large numbers of persons who shared a recognizable social quality.

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The complicated nature of the cleavage does not fit well with the orthodox Marxian concept of the class war. That idea is both too general and too weighted with economic factors to serve effectively in explaining the Sacco-Vanzetti case. There were many poor Irish workers who wanted the men killed, and many rich, conservative aristocrats who fought passionately to save them. With all respect for the sincerity of the communist sup­ porters of the defense, one cannot say that they argued wisely; they can be granted honesty but not an understanding of realities. What then was the nature of the primary division that sent each individual down one path or the other? Probably this: in one direction went the men who had to some degree grasped the fundamental quality of democracy, and in the other went those who had rejected that concept, ignorantly or willfully. Democrats conceive of government as a social tool existing for the good of most of the people. Tools, when they have served their purpose, are put aside; they are means which do not attain the dignity of a desired end. Furthermore, it is unlikely that democratic government, since it is only a useful device, will ever attain that degree of formal perfection which it might appear to have if it were thought to be an ultimate goal in itself. This democratic concept of government inevitably carries with it a continuing challenge and responsibility. If the structure of the authority which is over the people is something less than per­ fect, it will be necessary to guide its course by the exercise of com­ mon sense and social humility. This is simply saying that a democ­ racy is the most difficult of all political forms to practice. The defense in the Sacco-Vanzetti case was made up of men who believed that a government should serve the people, who thought they saw clear evidence of an unwholesome hardening of the structure of authority, and who applied a democratic criti­ cism to the social malady. They feared, in Benjamin Franklin's words, the "mistaken opinion that the honour and dignity of government is better supported by persisting in a wrong measure once entered into than by rectifying an error as soon as it is dis­ covered." 49 It was not to be expected that their views would illuminate the minds of those whose personal prestige was indissolubly mixed with the elected course of government. They might, however, have swayed the mass of public opinion and in this way have won their case. They failed. The other group of men, those who consciously or uncon-

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sciously rejected the obligations of democratic action, chose the easy way. A course had been decided upon, and it was much simpler to reject all criticism and allow institutional momentum to take care of the situation. In doing so they were blind to where the hurt would fall. Upon Sacco and Vanzetti, yes—for seven years. But also upon this country and upon the world. In the United States the Sacco-Vanzetti case left fear in the minds of millions; fear that institutions had been falsely endowed with souls of their own, that monsters of abstraction were in the saddle and riding roughshod over living flesh. In other countries a shocking blow was given to the tens of millions who, perhaps naively, thought there was a little more of wisdom and temperance to be found in the great American democracy. The undemocratic men won their immediate case when Sacco and Vanzetti were executed, but by all standards of wise social conduct they failed even more unhappily than their opponents. Could Sacco and Vanzetti have been saved? It does not seem so. Examine the opinions held by the people of this country in the 1920's upon the chief political, economic, and social problems of the day. Consider the fear of the Reds, the phenomenon of pro­ hibition, the ballyhoo about the war debts. Examine the opinions of the usual majority in the United States Supreme Court, the in­ tellectual competence of the presidents, the gross materialism of most urban citizens. One simply cannot find a preponderance of sane democratic thought on the vast majority of public issues. Why, then, should one believe that Sacco and Vanzetti were likely to benefit by an exceptional wisdom in public judgment? Sacco and Vanzetti were alien anarchists who knew almost nothing of the history or theory of American democracy. As an­ archists they clung with simple devotion to the chief doctrine of their political ideology—that the minimum of governmental regu­ lation of private life yields the maximum of individual human happiness. That doctrine has a familiar ring; it is not unlike the main democratic belief. It is therefore understandable that the death of two anarchists within the confines of a democracy should raise a problem of public concern to both schools of political thought. The issue of life or death for these two men led to a great battle in their day. They lost that one engagement, but their in­ fluence is still felt. The legacy of Sacco and Vanzetti to society lies in the emphasis which their fate gave to the continuing war­ fare between the forces of democratic and undemocratic action.

PART III T H E LEGACY T O L I T E R A T U R E : F A I T H . T H E BEGINNINGS OF HISTORICAL JUDGMENT

Chapter XIV

THE LITERATURE OF THE RECORD AND THE VERSE ι THE LITERATURE which emerges from the Sacco-Vanzetti case offers a valuable kind of social criticism written from a specific point of view, and it is also, in many instances, worth reading for its artistic worth. Both aspects of the literary material will be considered in these chapters. The interest of a writer in historical events is much like that of any other person. As a member of society, he has the same con­ cern with truth, justice, knavery, and the other complexities of civilization. A poem or a novel reflects the writer's attitude to­ ward his world in much the same way as political essays or socio­ logical studies demonstrate their authors' personal values. But a literary man also has a special point of view. He is professionally self-conscious; he has studied himself, and feels that he can make a worth-while contribution by showing how a series of events has affected an expert in one type of human analysis. He is not un­ healthily egocentric; he merely renders a report which is based upon an established and delicate technique. For these reasons it is quite proper to consider the literature of the case as a special­ ized form of social criticism. There is, however, a second aspect to literature. It possesses in varying degrees the power to stir a reader; it yields a sense of illumination—and gratitude. In other words, after a writer has been deeply moved, he endeavors to present the substance and the meaning of his experience in such a way as to arouse feelings in others. To the degree that he does this, he is successful in his art. And it is very important to note that a reader may value this secondhand world of experience for its own sake, quite apart from its fidelity to the original historical truth. A literary creation, in the long run, stays alive because it appeals to the imagination of the reader.

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All of the Sacco-Vanzetti literature will be examined fairly completely as to its substance and social values, but only those works which have unquestionable imaginative quality will be subjected to "literary" criticism. In conclusion, some observation will be offered on the growth of tradition, myth, and symbol in literature, as exemplified by the Sacco-Vanzetti case. A final introductory note is in order. What is the test of artistic or imaginative literature? Is not its designation always a matter of personal taste? Not necessarily; there is good and bad verse and fiction. In order to avoid a complete lack of discrimination—which would necessitate our plowing through everything written on the case—three broad categories are here set up. These should be of some help: (1) writings which have numerous excellent qualities according to the criteria of any established type of critical ap­ proach, (2) writings which have at least one good quality by the same criteria, (3) writings which appear to have no merit by any standard of judgment. In other words: very good literature, the middle ground, and the hopelessly bad. The extreme polarity of the first and third classes should obviate too personal an evalua­ tion.

2 The literature which is embodied in the legal and journalistic record of the case can be dealt with very briefly; much of it has already been discussed. It comprises the oral and written argu­ ments of the courtrooms, the newspaper and periodical material, and the work of the miscellaneous pamphleteers. One does not expect a court at law or its counsel to write litera­ ture; it has been done—Cicero, some of the English jurists, and Holmes come to mind—but the transcript of the record in the Sacco-Vanzetti case offers little. The opening and closing speeches by the prosecution and the defense are in commonplace and tedious language. Even lucidity is lacking. But there is one no­ table exception, William G. Thompson's oral argument on the Department of Justice issue before Judge Thayer; it is preserved in the appellate record and some of it has already been quoted.1 In stating his indignation at the Federal bureau, and his contempt at Thayer's acceptance of the situation, Thompson rose to heights of righteous anger. In doing so he united the rhetorial devices which had come to him from his reading in the classics over many years with vigorous contemporary English. The speech is a super-

THE LITERATURE OF THE RECORD AND THE VERSE

lative fusion of "languages" which differ in their origin but find themselves united by their kinship in mood. Fragmentary newspaper accounts suggest that Arthur D. Hill, in arguing Thayer's prejudice before Thayer, also spoke with great force. Unfortunately, there is no written record. The best of the newspaper writing appeared in the editorials and feature stories. The following items have previously been mentioned: Broun's columns, Bullard's "We Submit," Cook's edi­ torials in the Springfield Republican, the comments by W. A. White, and the New York World editorials (most of them prob­ ably by Lippmann). All of this material is characterized by sim­ plicity and fine order; some of it is grave, some indignant. How­ ever, it is unlikely that any of it will survive primarily through its literary quality. A handful of periodical contributions could be selected as rep­ resentative of really excellent work in American journalism of the 'twenties. Michael Gold's " 'It's a Fine Day'—Said Governor Fuller" appeared in the magazine section of the Daily Worker. 2 It is communist invective in an acute form, but tirade can be well planned and powerful. Gold is genuinely bitter; he omits the usual ideological platitudes and violently attacks the Massa­ chusetts executive. Other well-written essays, of a very different tone, are Meiklejohn's "In Memoriam," the anonymous "Penal­ ties of the Sacco-Vanzetti Execution," and Malcolm Cowley's "Echoes of a Crime"; all appeared in the New Republic. The issues of the Official Bulletin of the Defense Committee also con­ tain material well above the ordinary level. Three longer works complete the listing of the literature of the record. Dos Passos's Facing the Chair is in large part a narrative account; in those brief sections where the writer offers a criticism of society, he suggests a Macaulay or a Lecky. Although he is less grand, he is also less overtly stylish. Eugene Lyons's Life and Death of Sacco and Vanzetti has the fundamental virtue of biographyit brings to life the men and the society in which they lived. Lastly, Jeannette Marks's Thirteen Days should be mentioned. It contains a great deal of miscellaneous information about the events of the August 10 to August 23 period, and is useful for an understanding of the hysteria in Boston. Its virtue and its defect as literature are one and the same: the scene is viewed through the eyes of an exceptionally sensitive and fine-grained person. An onlooker of that type can do well with the sorrows of gentle

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women, but is less helpful when characterizing the strength or the brutality of some of the men in the case. 3

The themes of Sacco-Vanzetti poetry are various, but their treat­ ment is almost always personal. As one would expect, there is very little interest in the exclusively legal issues. Social tension is presented in terms of dramatic conflict. Love or hatred of par­ ticular men furnishes the content of most of the verse, and these feelings are embodied in the poets' own emotional experiences. Because of these qualities, the verse can be approached most satis­ factorily by first surveying the ideas of which use is made, and by then examining poems which have really distinguished merit. The evidence which convicted Sacco and Vanzetti had to do with such matters as identification, ballistic testings, and con­ sciousness of guilt. The question may be asked, are such matters totally unsuited to poetic use? Are relatively unhuman facts— which were, however, important enough to kill two men—hope­ lessly alien to imaginative treatment? If this is so, it suggests an inherent separateness between poets and the content of much of modern life. While the subject is too broad to be considered ex­ clusively in connection with this case, it raises a very serious diffi­ culty. It would perhaps be more hopeful if one could ascribe the failure in integration to the fact there were no poets of sufficient power to solve the problem; virtually the only reference to the trial is in Allinson's "For the Honor of Massachusetts." The mood of the American public at the time of the trial and in later years was, as we have seen, the subject of great interest to social historians. It is occasionally treated in the verse. Harrison puts it that "We have become indifferent to grief." 3 Seymour, on the other hand, stresses the element of cruelty; in a colloquial monologue, a semiliterate Irishman says: What's all this fuss they're making about them guys? Darned if some people ain't kickin' because "they got What was comin' to 'em; Sayin', be Jesus, It's 'cause they're reds. That's bad enough. But that ain't ailNot by a damn sight.

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Why, man alive, They're only a couple o' God damn dagoesl . . Now me: I'm an American, I am. . . . Send 'em up, say I, Show 'em that our courts is American. We don't get our law from Italy. We don't care whether they done it or not. To hell with 'em! They're dagoes.

The most detailed treatment of public hysteria is in Edna St. Vincent Millay's "Fear" which, although in prose form, is poetic in mood and language. She wrote two months after the executions; she admits that it may be well to forget, but it is not easy when you know that the two men did not die for murder. And the children of the day have watched and weighed this unjust act; they have been taught a lesson in unreason. Most terrible of all is the tact that the term "anarchist" has been misunderstood; holders of that philosophy are fundamentally believers in the natural goodness of man. Sacco and Vanzetti were such men and had nothing to do with the bomb-throwing minority which has discredited their system of thought. The real reason for their death lies in the nervous fear of society. And so men of faith have been put to death by men of fear, and the world is no longer quite so tempting a place to live in. The other large social question—the cleavage in society—is used by surprisingly few writers in verse. There are standard classwarfare poems by A. B. Magill and David Wolff; the latter attacks not only Thayer and Lowell, but also Morgan, Ford, Mellon, and Rockefeller, who are characterized as the modern descendants of the bloodthirsty women who knitted at the guillotine. Lola Ridge implies a less conscious division in society when she says that the earlier popular protests were thrust aside as . . . no more than a seasonal rash By which the masses cast their humors off,

These poems, however, are exceptional. Even the most devotedly Marxian writers apparently preferred to attack personally, and to neglect the case as a vehicle for general views on the class war. One issue lay partly in the area of social debate and partly in the field of personal emotional response; the contrast between the charge against Sacco and Vanzetti and the nature of the men is

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the first theme to be considered which reveals wide poetic interest. In approaching this material it must be borne in mind that the majority of the poets had as an aid to knowing the men only the speeches at the sentencing and a few letters; most of the verse antedates the publication of the Letters of 1928. This paucity of source material may account for the fact that Sacco is treated more explicitly than Vanzetti; Allinson emphasizes his gentle and do­ mestic disposition, and Borghi gives a fairly elaborate character study in his "Half an Hour with Sacco." The latter poem has impressive intellectual qualities, but the English version suggests that something less than justice may have been done to the Italian original. As one might well expect, full use was made of the likeness of the executions to the crucifixion of Jesus. Oatman's "The Meet­ ing" has the men greeted by Socrates, Joan, and Christ; Marks's "Two Crucified" calls upon "Jew Jesus" to observe what is done in his name;· Wood entitles his poem "Golgotha in Massachusetts." Carolyn Goodenough, writing before the fatal day, hails the men: So live or die, brave men, in peace! A world will welcome your release; Or, if you die, mankind will say, "Two martyrs' crowns were won today." E. Merrill Root, in his "Eucharist," offers a somewhat more so­ phisticated metaphor: Not by the grape or wheaten bread Can we partake the Eucharist: Communion is to give to God Our blood and bodies, like the Christ.

'

The verse reviewed so far is all that can be said to have a close connection with the controversial issues of the legal and social history. There remains a larger body which, as has been stated, deals with predominantly personal feeling about the case. A num­ ber of new ideas are developed, and they may be said to represent the major contribution of the poets to our understanding of the case. The fact that these ideas are not directly tied to well-known events does not make them less useful; they may very well repre­ sent a legitimate distillation of the essential quality. The event naturally attracted those writers in verse who by conviction or disposition held a grim view about man's life. Cow-

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ley says that neither god nor saint can be expected to intervene as the men go to their death. Inge allows his fatalism to carry him to the point where he holds no personal animosity against the judi­ cial murderers; we shall all be dead soon, crushed under the "wheels of one great mill." Deutsch admits the recurrent nature of such episodes in human history, but emphasizes the irremedia­ ble quality of execution. "Justice Denied in Massachusetts," by Edna St. Vincent Millay, is an elaborate metaphor portraying the blight which has fallen on the earth. An original concept is that of Dudley's "August Clippings, 1921-1927"; with elements of both fatalism and irony, the poet comments upon a train derailment, the exclusion of Isadora Duncan from this country, and the execu­ tion of Sacco and Vanzetti. Much of the verse does nothing more than attack bitterly individuals or groups responsible for the imprisonment and exe­ cution of the men: Thayer, Lowell, Fuller, Lawrence (after his congratulatory letter to Fuller), scholars and judges as a class, lukewarm or silent fellow-writers, Prejudice, "rapers of con­ science," 100-per-centers, and "All." Typically violent language is that of the "Ballade of the Crime Wave" by the pseudonymous Cato; why, he asks, should thieves and pimps be punished when: Webster Thayer, still sits on the bench, A. Lawrence Lowell is still at large. Davies's "I Am the Chair" makes use of the crude device of having the electric chair ask who Sacco and Vanzetti are; they have not won her fairly because she is reserved for murderers; "where is the man I await?" Root attacks the nature of man itself, and calls upon the storms of nature to Crush man, the angel with the maggot's brain: Crush man, the idiot ape, the spawn of Cainl Fortunately, there is also better use of this theme. Cullen, in a sonnet, refers to the appearance of the men of power on the day of judgment, and says "these are the men I should not care to be!" The best work in the invective vein is Ficke's "Prayer in Massa­ chusetts" which solemnly calls down the total wrath of God upon the land. Several of the poets, Bynner among them, make appropriate use

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of the seventeenth-century witch hunts of the Commonwealth. A rather numerous group of poems moves over into the area of abstraction, and in one way or another develop the theme that justice is dead. Closely allied to this idea is the belief that in kill­ ing justice the people have slain themselves. Dos Passos asserts that although Sacco and Vanzetti are dead in body, it is the dead in spirit who survive; Edna St. Vincent Millay, in an excellent sonnet, speaks as a solitary lover of Justice who will mourn her death and then strike for her memory. Char­ acteristic exaggeration appears in Titzell's "Harvest"; Sacco, Vanzetti, and Justice have been executed. Robbins extends mortality to include the whole of society: Toll the bell. Another crime is writ Into the annals of a dying state. The inevitable return of an evil act upon the souls of those who do it is frequently found as the central idea—usually in short poems and without elaboration. The day we let them die A little more will pass away That was our soul. . . . —BERENBERG.

But slowly let us learn How we Who stood complacently before Your piteous jail Had lost our liberty. -DE WITT.

. . . the death we meant for them became our own. —BYNNER.

When one turns from verse hostile to the prosecution, and ex­ amines that which is primarily sympathetic to Sacco and Vanzetti, there is a similar gradation—from simple praise to complex state­ ment of the value the men had as expositors of truth. Almost at once it becomes obvious that we are here confronted with verse which can stray pretty far from any real connection with the lives of the men. Meyers's "Our Murdered Comrades" bids farewell to two great fighters. Trent's "To Sacco and Vanzetti, by a Rebel of Anglo-Saxon Descent" exaggerates in the same way the quality of leadership:

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How in God's name can we lose faith today With men like you to forge a rebel's wayl Perhaps the most ambitious claim is made in verses by Cheyney; what they lack in exactness they make up for by scope: You walk in a thousand picket lines. You're the C.I.O. in mills and mines. You are heard wherever the heart defines The laws that justice with mercy twines. It's your hands that write whoever signs The bold decrees to straighten the spines Which too long have stooped where labor pines. Curiously, there are not many verses which consider the suffer­ ings of the men during their imprisonment. Brief references are made to their travail in a number of places but only Del Vechio seems to have been really interested in this potentially rich theme; he contrasts the father at home in his easy chair with the same man's ultimate destiny in the chair of execution, he notes that after seven years there is little left to kill, and in a third poem says "They killed two dead men yesterday!" It was to be expected that Sacco and Vanzetti should serve as an inspiration to those who raised the banner of militant action. Reich and Trent, before the fatal day, call for a general strike. Cheyney demands that voices be raised in "revolutionary thun­ der," and Plotkin—in rather unfortunate language—reminds us that "Christ wound up his campaign upon the cross!" After the executions, Cowley writes: March on, O dago Christs, whilst we march on to spread your name abroad like ashes in the winds of God. Sacco's affirmation of his anarchism as he sat in the chair cannot be denied, for, Ridge says: . . . who should dare To rise and haul those colors down Whose staff is in a dead man's lips? Poets who were less closely allied to a specific program for hu­ man betterment also adopted Sacco and Vanzetti as their leaders. Dobson promises the coming day of the Brotherhood of Man, and Davies says, "The world is led by men whom it has slain." Holmes,

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in his "Ballad of Charlestown Jail," asserts that Vanzetti will take his throne beside the other saints of human enlightenment. And as mankind moves forward, as these meliorists would have it, this fateful episode will be seen in its true light; in that illumi­ nation it will guide humanity. Cruel men, bewarel The Christs you kill Will walk in power with us still! . . . By the great Grand Jury of Mankind You stand condemned as fools and blind. —BURNS.

Men march forever Beating time To tomorrow's hymn. —MOSKOWITZ.

Hourly the Invisible Liberators of the skies Work toward the will of Light. —SIEGRIST.

The thematic content of Sacco-Vanzetti verse has been pre­ sented in summary form, and its general qualities may now be briefly stated. In the first place, not one poem has been discovered which supports the authorities and condemns the men. "Why there should be this complete absence of any voice from the majority of the citizenry is genuinely puzzling. Are all poets chronically devoted to the underdog? Did those who sincerely believed the safety of the state and the dignity of the law to be threatened find themselves constitutionally incapable of imaginative expression? The absence of verse from the right throws some light on the cleavage in society. Second, the poets who did write about the case neglected the law and those issues which were of chief concern to the scientific students of American society. They were content to explore in conventional fashion typically "poetic" areas of emo­ tional experience or to write about such standard abstractions as evil, virtue, justice, and truth. This voluntary restriction of their subject matter resulted in verse tied closely to the event and of a familiar pattern. Whether, although confining themselves to wellknown ground, they yet were able to produce poetry of high qual­ ity is the next and more important question to be considered.

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4 A total of 144 poems on Sacco and Vanzetti have been found. Of this number, half are well-intentioned efforts lacking in any qualities which might lead to their preservation in the annals of literature. Something like fifty have originality of concept, effec­ tive language, or some other poetic merit; this group forms a kind of middle ground about which individual readers might hold varying opinions. Twelve poems have such marked worth that they could well be considered for any anthology of significant American verse. This last group is the only one which will be dis­ cussed in this place. Witter Bynner's sonnet, "The Condemned," is dated August 3, 1927, and was therefore written at the height of the tense feeling of the last days. He cautions the authorities to do a good job; Sacco and Vanzetti must be destroyed completely—in reputation as well as substance; otherwise the mention of their names will inevitably recall the spiritual imprisonment and death of the world which has permitted their execution—"the death we meant for them be­ came our own." The use of the Petrarchan form and the solemnity of the diction remove the sonnet from the hysteria which so widely prevailed. Countee Cullen's "Not Sacco and Vanzetti" is of slightly later date. This sonnet is characteristically competent, and the main thought is handled with grim dignity instead of malice: the poet would not care to be in the shoes of the judicial murderers at the final day of judgment. But it must be admitted that these verses, and some of the other sonnets, are disappointing in their brevity. There is so much to be said, and so little space is given. The fourteen-line restriction does not seem to offer enough room for the narrative content, the characterization of the attending social mood, and the poet's own imaginative judgment. The first of Edna St. Vincent Millay's Sacco-Vanzetti poems is "Justice Denied in Massachusetts." It consists of thirty-six lines of irregular unrhymed verse. The theme is the blight which has fallen upon life; the earth is sour; "Evil does overwhelm the lark­ spur and the corn; We have seen them go under." Miss Millay makes effective use of a Biblical diction which in tone is much like that of the second Isaiah poet; her mood is distinctly more temperate than in the verse for which she is best known; she has

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her eye on the subject and refrains from emotional exhibitionism. "Fear" has already been discussed. It is included among the verse because of its exalted tone, although it makes no pretense at metrical pattern. The main theme is the compelling power of an unintelligent and murderous public hysteria. The author says that she can speak openly because she is not an anarchist, and does not share the belief of Sacco and Vanzetti in the goodness of man; in fact, she no longer avoids the thought of her death so strongly— that event will release her from a world in which the race has shown capacity for exceptional cruelty. The same writer published "Two Sonnets in Memory" in August, 1930. The first of these is written with care, but lapses into a mood of personal sentimentalism: the solitary lover of jus­ tice mourns the past beauty of the dead abstraction, and pledges to fight on in justification of her memory. The second reverts to the idea of a welcome death; alas, even a ghost would retch at the sight of a troubled, struggling land. These two sonnets are typical of the verse which irritated the masculine activists; they were felt to be marked by sentimentality, masochism, and negativism. These charges are not totally true, but there is some substance to them. Readers generally familiar with the work of E. Merrill Root, at least in his 1927 volume, Lost Eden, will have to admit that there is much of the "bleeding heart" quality in his poetry. He also tediously reworks elaborate metaphors which have to do with the sun and moon. "Flames," a poem of twenty lines, stands out by the originality of its concept; inanimate, the flames are confined within their wooden mold, they lie unknown until they are re­ leased to meet their Lord. And so it is with men: "Pity, pity us who lie Wooden flames until we die!" Root has successfully re­ stated an old and valid metaphor which has its archetypes in the fragments of the earliest Greek poet-philosophers. Malcolm Cowley's stanzas, "For St. Bartholomew's Day," marked the first anniversary of the executions. They are perhaps somewhat frantically emotional, but their intense sincerity—cou­ pled with the apt title—lends them strength. Much of the verse which attacked the Massachusetts authorities has no merit beyond the genuineness of its anger. But one sonnet has language of considerable power; Arthur Davison Ficke's "Prayer in Massachusetts" is comminatory literature at its best:

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Upon this soil may no tree ever grow. In this land may no lips ever again Speak the word justice, now that all men know Those lips have long boasted and in vain. May never young men hither come to learn What cruel elders have no power to teach. May no lights burn here save witch fires that burn Along some desolate and abandoned beach. May this dour land go back now whence it came— To early granite, to implacable sea. May there descend on it the cleansing flame Of some remote, supreme catastrophe Divorcing it forever with its shame From men who would be generous, wise and free.* The author repeats the general idea of this poem in much more temperate language in the six lines entitled "Massachusetts Thanksgiving 1927." There is evidence that he thought his first version "rather too violent." 4 A similar denunciation is that by James Rorty; his "Gentlemen of Massachusetts" was printed in the September, 1927, New Masses; the language is extreme, but, as he calls for the early death of those who killed the men, Rorty's last line is effective in its ironic underemphasis: God how you wolfed the lean bone of your nothingness! Now it is done; the fish-peddler goes free, the shoemaker walks well-shod in a temple you cannot defile. . . . Be quick, the old lilacs, the wild indifferent laurel will feed on your bones. Be quick, I would not have one laurel bell less pink for your delay,

5 There remain three poems to be considered. An element of in­ dividual taste may account for the fact that these poems, which the present critical judgment believes to be the best work in verse, are also the three longest treatments. It should also be noted that only one of them is found in the two anthologies of Sacco-Vanzetti verse. Brent Dow Allinson's "For the Honor of Massachusetts" is a * Arthur D. Ficke's "Prayer in Massachusetts" is reprinted in its entirety by special permission of Mrs. A. D. Fxcke.

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poem of ninety-seven lines grouped in stanzas of uneven length; the general effect is that of an ode, although Allinson, in common with nearly all writers of verse, does not follow the classic Pindaric pattern. Take them, my lords, from Dedham to the chair! Take them and burn them living in the lair Of Vengeance men call Justice, if you will: These twain you may consume, the truth you cannot kill! [These opening lines are followed by a rather lurid picture of the executions, and a portrait of Fuller confronted by his conscience.] O, hapless Governor, twice-wretched man! Is this sick nightmare but a poet's dream— Or is it fact and fateful history? Judge, Massachusetts, or be dumb! . . . Say truly, are things what they seem? "The courts can do no wrong!" the courtly cry; "What right have these to bray of Freedom here— Two ranting dago aliens who have come To live and labor in Prosperity Among our Pharaohs happy-fatted kine? We have no time for theoretic whineTeach them their business, and a certain fear Of God, or send them back to Italy!" Thus the Daemoniac, ad Patriam, ad nauseam: O, State, thrice holy state, thy will be done!— Vengeance is thine, and statute, force and praise And all the glory underneath the sun; But to the weak—Ah! Lincoln, what a sham! Since when were courts the thrones of Liberty, Or juries' eyes the clearest eyes that see? Since when was Truth secure when lawyers raise Their smoking muskets and fierce war of words? What did they once in Salem by the sea? . . . And on that common, where your State House looms What madness once prepared what fiery dooms? . . . Was Dred Scott's freedom ransomed by a court, Or John Brown's justice silenced by a fort? Have not a hundred juries gone astray? . . . Were prophets heard in Israel, today What crowns would fall, O Jehu! what rewards! . . . * Brent D. AIlinson s "For the Honor of Massachusetts" is quoted, in part, by

special permission of the author.

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In one or two places, as in his use of "twain," Allinson falls back upon outworn poetic diction; but he is generally successful in combining a line-cadence reminiscent of Wordsworth with a somewhat Miltonic vocabulary. Although "For the Honor of Massachusetts" is clearly in an old style, it is by no means a negligi­ ble effort. It was particularly suited to the three publications which printed it, each in August of 1927: the Locomotive Engi­ neers Journal, La Follette's Magazine, and the church magazine, Unity. It has not apparently been subsequently republished. "For the Honor of Massachusetts" was in fact written some years before the case became a major public issue. The author states that it "was written by an undergraduate student in Harvard College, reflecting upon the episode from the security and quiet of his home in the emancipated Middle West, in or about the year 1921." Looking back upon his own work, Mr. AlIinson is not sure that these verses represent much more than "a particularly mor­ dant expression of adolescent chagrin." 5 These comments throw interesting light on the origin of the poem but are perhaps unjust as a measure of its power. Lola Ridge, a poet of New England who died in 1941, was a member of the group which picketed the State House during August, 1927. Her several volumes of verse are not widely known to the general public, but it is difficult to believe that this relative obscurity can continue indefinitely. In almost all her work there are two qualities of very high value. Ridge, in the first place, almost never sacrifices profundity or subtlety of thought for am­ bulatory lyricism. Furthermore, if metaphor is of the essence of poetry, she lives up to its demand; her figures of speech have ob­ viously been worked over with great care, and all merely facile elements have been discarded. "Two in the Death House" is a group of stanzas totaling sev­ enty-two lines; it is printed in the 1928 Trent-Cheyney anthology. Particularly interesting is the early attempt to do something more with Sacco and Vanzetti than the traditional giving of martyrs' crowns. The men are seen as relatively unlearned, but grand in nature. Shall we "make heroes" of you—when all you ruminate, Of songs, books, art, or the world's thought, Hard-learned, meagerly fitting, like worker's clothes, Askew upon you, might be talked out in one evening?

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This is true, says Ridge, but note that in their seven years' im­ prisonment they saw a light; once, perhaps, a keeper turned and met Vanzetti's eyes squarely and sensed the prisoner's lack of hate or fear—and recognized "Some spirit of brotherhood." And in your eyes that are intrepid without hate And unwavering before oncreeping death, you yet hold your captaincy. The longest and in many ways the most significant of the SaccoVanzetti poems is Ridge's "Three Men Die" which was presum­ ably first published in 1935 in the author's Dance of Fire. There are five sections, and 384. lines. ι [Workers look toward the death house where two men lie with a thiei between them.] . . . (old myth Renews its tenure of the blood Recurrently; in a new way Reforms about its ancient pith With all the old accessories) [The governor looks down upon the streets from his window as dawn begins; he makes no sign, but thinks:] Oh this sevenyear sickness ran a fever in men's blood, now at the danger point! At first no more than a seasonal rash By which the masses cast their humors oft [His historical sense informs him that old dynasties of power have burned, but this one shall not. Sacco and Vanzetti are fire carriers; "Oh ours to save from malcontent This only land of equity!" (The poet notes that the makers of the tradition of freedom did not spend their time babbling it.) The governor sits in silence; something faint within him stirs—but still he gives no sign.] II

[Night falls and a conscript light shines in the prison. Medeiros, without vision or comprehension greater than that of an embryo, made the sign as the monstrance was lifted. Sacco and Vanzetti reject re­ ligion; they are men of single purpose.]

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III [(This section is in long sweeping lines.) Boys and girls, men and women of all races dedicate their hearts to this agony. A long metaphoric digression on the taming of the horse; primitive man subdued the creature and used him proudly; now these animals are put to a small dance as the mounted police push back the crowds. For seven years the earth has put forth the glory of its fruits.] IV

[Medeiros is led, blind, to his execution. The intrepid Sacco goes to death defiantly proclaiming his belief in anarchism. Vanzetti courte­ ously greets his executioners and offers forgiveness:] He reached and touched them where they stood; Then cut into the core of him And plucked from out its deepest part The love that quivered at his heart And held it on his palm to them. ν [All is silent. There is no sign in the heavens of the accomplishment of a new sacrament as the dawn rises.] The language is unusually compact and there is a complete ab­ sence of merely sonorous phraseology; the quality of the diction should, of course, be studied in the entire poem. The shifting of the point of view from that of the onlookers to that of the gov­ ernor and finally to the doomed men is handled with a minimum of structural emphasis. The digression on the taming and ultimate degradation of the horse is an effective interlude in irony, and the song of the fruits of the earth is genuinely mournful. "Three Men Die" is unique among the Sacco-Vanzetti poems in presenting genuine characterization of the men, and it will be noted that effective use is even made of the presumably unpoetic Medeiros. Of course, Ridge is writing well after the event; she had before her the whole transcript, the letters, and the miscellaneous biographical addenda. Other poets of equal power wrote about Sacco and Vanzetti. No one of them, however, gives any sign of having worked at his ma­ terial for as many hours and with as intense a desire for final

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artistic perfection. Lola Ridge's verses almost certainly deserve a permanent place among the chief American poems. 6

Poetry must speak for itself, in large measure. It is necessary, therefore, only to say this: (i) the event which troubled the law and the people also troubled the poets; (2) writers in verse brought their varying skills to the story and there is no reason to believe that any one of them wrote better or worse because of the nature of his subject matter; (3) there is evidence that the adolescent ex­ hibitionism which flourished generally in the 'twenties was hardly less active in this body of verse; many of the poems neglect the event and its significance, and focus on the poets—who are not always as interesting as they might be; (4) the longer poems are more significant because of the greater challenge they have pre­ sented to their writers.

Chapter XV

THE PLAYS ι THE STORY of the Sacco-Vanzetti case has a great deal to offer a dramatist; he may work with it as historical narrative, as tragedy of character, or as conflict in the social and moral order of the world. Several plays show this variety of treatment, some by way of allusion and others at full length. They are six in number:

1928 Maxwell Anderson and Harold Hickerson. Gods of the Light­ ning.

1929? 1934 1935 '939 1947

Pierre Yrondy. Sept ans d'agonie: Ie drame Sacco-Vanzetti. Samuel N. Behrman. Rain from Heaven. Maxwell Anderson. Winterset. James Thurber and Elliott Nugent. The Male Animal. The Saeeo-Vanzetti Case; in the radio series, Those Sensational Years!

It will be easier to arrive at the worth of the dramatic literature than the poetry; the plays can be taken up as whole works—the themes presented and the artistic quality judged at the same time. But in order to prepare the way a few platitudes are in order. A play is an action, and its whole force cannot be felt unless it is seen and heard. The theater building, the stage setting, the shapes, features, and voices of the actors, lighting, and a dozen other tangible projections are necessary for complete understand­ ing or judgment. The written text is, of course, very important; in many ways it is the central element. But apart from its ideas and its language, the text has the secondary function of serving as a guide to the physical action. Consequently, in reading the lines of the play one must consider the text both as dramatic litera­ ture and as a stimulus to visual and oral imagination. Everyone also knows that plays are a particularly archaic art form; the restriction imposed by the time available for perform­ ance, and by the necessity of having the audience grasp meanings when they first hear words, has led playwrights for more than two 393

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thousand years to the practice of hitting the audience between the eyes. Dramatic literature, to the degree that it is successful theater, is not distinguished for its subtlety of statement. Good theater can, however, have in it depth of thought, rich emotional impli­ cations, and beauty of language. Finally, common experience will support the observation that individual plays are often mixtures of strong and weak elements; one piece will have a well-developed narrative content but out­ landish characters, while another will have real people who wan­ der about in unilluminating confusion until both actors and audience make their exit with relief. There are not many pieces the equal of Don Juan or Saint Joan, and expectations should be modest. In short, the Sacco-Vanzetti plays, like other stage material, should be read with an eye to action, with an awareness of the limitations of the play form, and in a spirit of charity. Yrondy's Seven Years of Agony is a masterly combination of howling melodrama and liquid sentimentality. Scene I, "The Broken Dream," is laid in the Piedmont woods. Vanzetti and his sister, Luigia, discuss the difficulties that have arisen from his love for Giovanna Belloni, a daughter of a rich and proud family. The lovers then meet; Vanzetti asks her why her brothers cannot "silence the repugnance—based upon caste feeling—which they have for an upright, faithful workingman. . . . Is it not true," he asks, "that I am that kind of a man?" 1 He then continues with a discourse upon the harmony which exists among political lib­ erty, the simple life, honest work, and romantic love. Shortly after this interview, Vanzetti is confronted by Giovanna's brother, Pietro; Vanzetti holds forth upon the nobility of the natural man, and Pietro justifies the hideous superficialities of a materialistic society. Neither disputant makes the slightest attempt to be less than infuriating to the other. There is a fight. The unarmed Vanzetti disposes of four men with knives or swords; then he is treacherously stabbed by a semi-recumbent victim. The scene closes with the finding of his half-dead body by father and sister. The next scene is laid in Sacco's simple home in South Stoughton. Rosina and her husband talk about the beauties of nature, Vanzetti's lovable nature, the need of a car for the distribution of radical literature, and the South Braintree murders. Sacco is dis­ turbed by the reward of $25,000 which has been offered; he feels that it may arouse the cupidity of false informers. Vanzetti enters

395 and tells his friends that Giovanna is dead, far away in a convent. Sacco tries to cheer him, and Vanzetti finally pledges her spirit that, "faithful to the promises which I here solemnly make, I shall devote myself to the improvement of society." Comic relief is introduced in the person of Orciani, a jovial hedonist with Shavian qualities. The curtain rises upon the same scene, three hours later. A family dinner finds Sacco, Rosina, and Vanzetti at the table; their happiness is clouded by knowledge of the fate of Salsedo, Coacci enters to bid farewell; he is on his way back to Italy. Vanzetti sends forgiveness to the Belloni brothers, and gives Coacci a letter for the dead Giovanna—it is to be cast upon the surface of the mur­ muring brook which heard their vows and hopes. Vanzetti seems to be about to go to pieces; Sacco must constantly support his fail­ ing spirits. The scene closes abruptly with the entrance of officer Connelly who arrests the men as "suspects." Scene IV, Katzmann's office, is entitled "Forfeiture." Stewart and Katzmann plan the case; that is, although they lack proofs, they have suspicions. The proofs can be found—or supplied. A new character, Dycke, reveals himself as the agent of Coolidge; he lets it be known that the really great powers desire a death sentence. Dycke and Katzmann "understand" each other. The district attorney then interviews Proctor and the two agree upon the famous ambiguous statement. Finally, Katzmann talks to Sacco and Vanzetti (and the playwright uses some of the trial crossexamination of Sacco). As the curtain falls, Katzmann is telephon­ ing Dycke, assuring him that a death sentence is a certainty. The next scene is in the courtroom, with Thayer playing the part of a prosecuting judge, much after the fashion of the French criminal system. Sacco is cross-examined. Proctor makes his state­ ment. There is a three-sided dispute in which Hill, Thayer, and Katzmann have a go at each other. Katzmann sums up (partly in the language of the trial record), and is followed by the defense counsel, Hill. When the jury brings in the verdict, Rosina screams "Down with middle-class justice!" The next place is the cell of the condemned men. Sacco and Vanzetti discuss the usefulness of hope, and the latter tells of a great dream he has had. THE PLAYS

I dreamt that man was using all the forces which he commands in the service of the Good. Everything which causes suffering was dead. Nature had put on again her mantle of delicate colors—the sky was

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charged with golden dust. And no one was attempting to seize upon her for his selfish interest. Vanzetti tells Sacco that the aristocracy of intellectuals and artists is a thing of the past; brain and muscle now work for the common good. War and crime have vanished. The men agree that with a faith in such a vision they need not fear death. Word is brought by Thayer of a twelve-day reprieve; the victims do not desire it, and continue the writing of their farewell letters. Last scene of all is "Golgotha." Hope and fear alternate as the hours pass. Vanzetti sees again his beloved Luigia; he is hysterical and maudlin. Rosina bids Sacco farewell; he charges her to take his place in the ranks and to bring the children up as fighters in the Cause. First Sacco, and then Vanzetti, are led off; both shout triumphantly, "Long live Anarchy!" The defects of such a play are immediately obvious: page after page of drool, exaggeration in the characters, and highly improb­ able action. Nevertheless, Seven Years of Agony has something to offer. Yrondy has skillfully chosen among the thousands of in­ cidents in the trial; the evil plotting between Katzmann and Stew­ art is genuinely frightening. The courtroom scene is an honest attempt, even if it is several levels below that of Brieux's Red Robe. Most important of all is the fact that the play has a fast, coherent line of action. The whole business of Vanzetti's love affair was not, incidentally, Yrondy's invention; rumors about a disaster of that sort had been reported out of Milan as early as September, 1927.2 This French play, in all its tawdry exaggeration of character and situation, is reminiscent of the primitive monstrosities which Shakespeare so successfully remodeled. If a writer of superior lit­ erary sophistication put his hand to it, it could be transformed into a tragedy of moving quality. That might be worth the doing, particularly because Seven Years of Agony is the only dramatic treatment of the case which is primarily interested in Sacco and Vanzetti as tragic characters; all the other plays emphasize the effect of the catastrophe upon American society.

2 Rain from Heaven and The Male Animal, in 1934 and 1939, indicate clearly the conviction of their authors that the Sacco-

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Vanzetti case had become a living symbol, a touchstone for the testing of fundamental social attitudes. The Behrman play has a single but important allusion to the case; Thurber and Nugent use it as the catalyst in a conflict between liberalism and reaction. Samuel Behrman's Rain from Heaven is a serious play in which the characters—all of whom are intelligent—suggest by their per­ sonal conflicts the stresses in the modern world. One male char­ acter is a handsome and famous explorer; he is superb in action, but his directness has in it a latent Siegfriedism. Another man, older and more complex by nature and experience, has escaped from the German persecutions of 1934; at first he is tempted to settle in the charming English countryside; eventually, as the play closes, he feels that he must return to battle against the forces of oppression. Between the two men, and in love with both of them, is Lady Lael Wingate—lovely, wealthy, and engagingly liberal. Her middle-ground position leads her to reject the young public hero, and in turn to be gently put aside by the more mature and sterner man. Chief emphasis in the play is placed upon the education of Lady Lael; she is constantly examining her own experience in growth. In one place, the woman recalls her feeling for Sacco and Vanzetti.* . . . I'd read everything there was to be found about {the trial] and felt passionately. I was coming up here one day in the train. . . . I had just read Vanzetti's farewell letter; I sat there thinking of this man being shunted in and out of the deathhouse, facing ignominious death and sitting down to write this patient, forgiving, beautiful letter and I began to cry. I just sat there—crying. A stranger was in the same carriage; I had forgotten his existence—a nice old Anglo-Indian colonel. He put his hand on my arm—"My dear young lady," he said, "Cornel Come! A pretty young woman like you!" Life didn't seem long enough to explain to him that I was not crying about a lost lover but about Sacco and Vanzetti. "Think of all life has in store for you," he said. I was thinking about death but I couldn't help laughing. "Do you think so?" I asked. "That is right," he answered. "Keep a stiff upper lip!" 3 The playwright's use of the Sacco-Vanzetti case is confined to this one speech; despite the brevity of the incident it is an excel­ lent example of the manner in which an event of historical impor* Quotation from S. N. Behrman, Rain from Heaven (New York: Random House, is by special permission of the publisher.

1934)»

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tance can be worked into the private life of a dramatic character. Lady Lael was growing up, and the Sacco-Vanzetti case stirred her deeply. It affected her after her own fashion, but the experi­ ence she had was like that of many other men and women; all of them responded to the social catastrophe in much the same way because of the symbolic quality of the event. The Male Animal is a witty comedy which successfully com­ bines a great deal of commonplace hokum with shrewd satire. Tommy Turner is the traditional mild-mannered associate pro­ fessor of English, teaching at Midwestern University. He has a vaguely poetic attitude toward life; despite his fuzzy gentleness he has kept the affection of his charming wife and the admiration of many of the students. The week end during which the action takes place witnesses the climactic football game of the year. Turner is mildly annoyed by the idiotic athleticism which has descended upon the campus, bringing with it stadium-building trustees, Joe Ferguson the all-time All-American back, and a lot of silly drinking. Much of the play has to do with the temporary desire of Ellen Turner to find a new life of adventure with Joe, a beau of college days; she knows he is not too bright, but at least he is thoroughly masculine. Comic arguments and an unequal fist fight keep things moving, until all ends fairly happily. Ellen stays with Tommy because of his stand on the Sacco-Vanzetti case. He knows nothing about the law or the social history, but he has a simple conviction that Vanzetti wrote some remark­ able letters. Turner has conceived the idea of reading to his litera­ ture class letters by men who, although not professional writers, have achieved a great style: among these are Lincoln, Sherman, and Vanzetti. An intensely serious student-editor has got hold of this fact and written an editorial on its current significance:* When this so-called University forces such men out of its faculty as Professor Kennedy, Professor Sykes, and Professor Chapman, because they have been ignorantly called Reds, it surrenders its right to be called a seat of learning. It admits that it is nothing more nor less than a training school for bond salesmen, farmers, real-estate dealers, and ambulance chasers. It announces to the world that its faculty is subservient to its trustees, and that its trustees represent a political viewpoint which must finally emerge under its proper name, which is —Fascism. * Quotation from James Thurber and Elliott Nugent, The Male Animal, is by special permission of Random House, holder of the copyright.

THE PLAYS

399 These professors were not Reds. They were distinguished liberals. Let us thank God that we still have one man left who is going ahead teaching what he believes should be taught. He is not afraid to bring up even the Sacco-Vanzetti case. He has read to his classes on the same day Vanzetti's last statement and Lincoln's letter to Mrs. Bixby. The hounds of bigotry and reaction will, of course, be set upon the trail of this courageous teacher, but, if they think they are merely on the spoor of a lamb they are destined to the same disappointment as the hunters who in chasing the wild boar, came accidentally upon a tigress and her cubs. Our hats are off to Professor Thomas Turner of the English Department.·4 The outlook for the student editor is not very hopeful; Tommy, however, has not actually read the letter as yet and can save him­ self from the wrath of the trustees by not carrying out his plan. To this peaceful solution, he is generally agreeable. Ed Keller, chief figure on the Board of Trustees, is one among a miscellaneous group of pre-game guests at the Turner house; the Vanzetti matter comes up and Keller throws his weight around. He wants "Americanism" taught; the trouble is that there are "too many ideas floating around— You put ideas of any kind into young people's heads, and the first thing you know, they start believing them." He gives Turner fair warning that he will be fired if he offends. The professor pleads reasonably for his rights: If I can't read this letter today, tomorrow none of us will be able to teach anything except what Mr. Keller here and the Legislature per­ mit us to teach. Can't you see what that leads to—what it has led to in other places? We're holding the last fortress of free thought, and if we surrender to prejudice and dictation, we're cowards. He reads the short letter (which is in fact Vanzetti's few words to Philip Stong, the "If it had not been for these thing" statement). The group is puzzled; there doesn't seem to be anything here to upset the apple cart. Nevertheless, Ed's stand is clear: ". . . if you read this letter today you're out of this university tomorrow]" As the play closes Turner is on his way to class to carry out his plan; he will lose his job but his wife is by his side for she now sees that there is another kind of prowess than that of the athletic field. As Sacco-Vanzetti literature, The Male Animal is of particular interest. To begin with, it stresses the fact that merely mentioning

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the names of the two anarchists is enough to arouse hostile feel­ ings. Neither Turner nor Keller really know anything about the men; but they are equally willing to fight the business out in terms of a symbol. Professor and trustee are also willing to merge two separate quarrels: that over the right of a teacher to use his pro­ fessional judgment about the material of his classroom, and that over the function of a university as a disseminator of ideas. The playwrights have captured with high fidelity the atmosphere of a dispute about "academic freedom"; in such a situation many of the antagonists are not too sure of what the fight is all about. There is some simplification and exaggeration of character. Tommy Turner might well be a little less naive in the light of what has happened to his colleagues. Keller is simple to the point of being slightly incredible. University trustees are not usually so crude; they have learned to dispose of faculty members by in­ direct but equally sure methods. One charming device was used only recently; a professor at a large university proved too critical of the dominant interests; he was forced out by being told that he would have to face charges of being emotionally unstable—the result, it was alleged, of the male menopause. As a matter of fact, the reports of the American Association of University Professors could furnish material for a whole dramatic renaissance. The tender conscience of society can be very easily disturbed. The history of the French stage offers many instances of angry turmoil. In this same period of the 'thirties, a Dreyfus play raised such sharp feeling that the riot squads had to be called out. On another recent occasion, the revival in Paris of Shakespeare's Coriolanus led to an explosion in the administrative offices of the French national theater; the play contains some antidemocratic speeches. Sacco and Vanzetti are in good company. Have Thurber and Nugent been fair to the temper of American university trustees; is the central incident of The Male Animal so bizarre and exceptional that it does not fit into the normal pic­ ture? It would be pleasant to think so, but there is too much proof to the contrary. And there are undoubtedly many campuses where a performance of The Male Animal would at the present time lead to more than a little trouble. That is one of the merits of a good play; the audience is not left in any doubt about the kind of people it presents. Nor is it the playwright's fault if some of his characters bear a marked resemblance to prominent figures in the community.

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3

How accurately should a play reproduce the known facts of a historical event? This question has been argued for a long time, and there is considerable diversity of opinion. One critic will in­ sist upon complete faithfulness to the established record, another will allow the dramatist freedom to try anything. In the plays which give the story of Mary, Queen of Scots, more than one author has found it impossible to resist the temptation of con­ fronting Mary by Elizabeth; Schiller and Anderson make big scenes of this conflict. Sober chroniclers can find no proof—or any real likelihood—that the women met. Audiences presumably do not mind; the queens ought to have met in person, because they were opposed in policy and temperament. Apparently fact is no bar to fiction. On the other hand, audiences do not like to have tradition out­ raged. When Schiller has his Joan of Arc die from wounds in battle, he flatly contradicts a legend which most of us pick up in our eighth or ninth year. Such a violation of a cherished story is more than likely to annoy an audience beyond words. A third aspect of this matter of fidelity to fact or legend brings us directly to the Sacco-Vanzetti case. What are the obligations of the writer who comes in on the ground floor and assists in the creation of the tradition? Yrondy follows the historical record fairly closely. He does use a f'anciful rumor about Vanzetti's early love, and he also brings in the mysterious representative of Coolidge; but in the general conduct of his plot one can recognize the case both as to fact and mood. Behrman, and Thurber and Nu­ gent, have no occasion to use more than the simplest units of the story. When, however, we come to the 1947 radio drama, the issue of accuracy arises in an acute form. Those Sensational Years! was a series of radio plays performed in the spring of 1947. The script for The Sacco-Vanzetti Case is dated March 27; it probably fits into a half-hour program. The play opens with Vanzetti delivering a portion of the speech which he made at the time he was sentenced. The focus is then shifted to a young reporter, Ben Wiggins, who is working hard for the defense because he believes the men innocent. He has diffi­ culty in making himself understood even by his mother; she has an almost closed mind on the case. Some indication is given of

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the increasing public tension. There is a conversation between Musmanno and Vanzetti in which the latter evidences his philo­ sophic strength. In a brief scene, Justice Holmes refuses to intervene; he says, "If I listened to you anymore I would do it. I must not do it." 8 The Department of Justice files are discussed, and the Attorney General of the State [M'C] finally agrees to their being opened. But the executions take place at almost the same moment that Sacco's alibi is discovered to be "air tight." The play ends with a vague assertion that World War II has brought into being some of the tolerance and brotherhood for which Vanzetti pleaded. One curious aspect of this radio drama is its free use of the names of living men: Musmanno, Felicani, and Gardner Jackson appear in several places. This coloring of reality is, however, about the only merit to be found in the production. The script as a whole brings to mind the recent episode of the little boy who was escorted from a movie palace because he had said the picture "stinks." "It is a fact that no proof exists that Sacco's gun fired the fatal bullets." One may excuse the multiplication of bullets, but even the most convinced defenders of Sacco would hardly say there was no proof. Nor was his alibi proved to be "air tight," after the execution or at any other time. This is the radio way of inter­ preting the Bosco-Guadagni episode. The opening of the files by an officer of the state of Massachusetts hopelessly obscures the whole significance of the position taken by the Federal authorities. All these facts are wrong. Even worse is the bilge about the par­ tial realization of Vanzetti's philosophy in a new day of human understanding. One cheap, sensational, inaccurate script about Sacco and Vanzetti does not necessarily condemn the dramatic efforts of the whole radio industry. Nevertheless, the play is disheartening. The only element in this trash which is worked out with real care is the series of superb sound effects.

4 The two most important plays on the Sacco-Vanzetti case are by Maxwell Anderson: Gods of the Lightning, written in collabo­ ration with Harold Hickerson in 1928, and Winterset, written in 1935. A full-scale discussion of these two works will throw light

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on the relationship of the famous case to a number of contempo­ rary values in American social thought. The analysis is not easy because it will also be necessary to consider at the same time ele­ ments of growing and dying power in Anderson. It will be helpful at the outset to state in simple terms two critical judgments which are frequently met with in connection with Anderson, and to give fair warning that the present study arrives at almost diametrically opposed conclusions. The first is the view that Gods of the Lightning, written in the flush of angry condemnation, is not as good a play as Winterset, because, seven years later, the dramatist reveals a more mature understanding of human passion. The second opinion holds that Anderson, with the passing of time, has grown in stature as a philosopher. On the contrary: there is a great deal of evidence to indicate that, while Anderson may have retained or even developed his original tech­ nical skill, there has been a steady disintegration in the clarity of his thinking. Such a severe judgment will, of course, need sub­ stantial proof. For the moment, the reader may find it helpful to ponder the union of confusion and banality in Joan of Lorraine. The opening scene of Gods of the Lightning is laid in the res­ taurant of a labor-center building, somewhere in an eastern city. Suvorin, the proprietor, is a formidable and satanic figure; he is engaged in splitting with a confederate the money just got by a holdup. In another part of the building a strike meeting is in process; reports from the meeting indicate that the longshoremen are showing signs of yielding to leaders who counsel compromise. Minor figures include a penniless hobo, an eccentric who believes he knows "the sign," and a decayed scholar given to ironic com­ ment.* Bauer, a leader of the conservative element in the union, comes in and says that Macready is making his last speech; from now on it's to be straight union and no more radical literature on the shelves. Mac enters and the two men quarrel harshly. Rosalie, Suvorin's daughter, is chiefly interested in getting Mac out of the restaurant because he was carrying a gun when he came in. There is talk of the recent holdup in which a paymaster was killed, and of Bardi and Capraro, two anarchists who appear to have been present in the general area of the strike and the hold­ up. Capraro enters and tells that Bardi has been shot dead during * Quotation from Maxwell Anderson and Harold Hickerson, Gods of the Light­ ning, is by special permission o£ Mr. Anderson.

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some of the rougher action; offstage, a Salvation Army group sings "There's a land that is fairer than day." 6 With the story under way, Anderson is ready for his first major conflict between important characters. Mac is eager to go gunning for the assassins of Bardi—presumably the police. He derides the fear which everyone has of the uniformed force, the church, and the whole system of authority. Capraro, the pacifist anarchist, counters: "You would be wrong. When you take violence into your hands, you lower yourself to the level of government, which is the origin of crime and evil." Suvorin reveals his attitude toward life: he is completely unmoral; he says, "There is only one man with enough hell in him to be dangerous—enough hell and cunning and power—and it is I alone!" The police enter and arrest Mac and Capraro for the murder of the paymaster. In this first act Anderson has used a good deal of the factual material of the Sacco-Vanzetti situation, and has also profoundly modified it. Ca'praro is both Vanzetti and Sacco, rather briefly and inadequately presented. His extreme pacifism is in contradiction to Vanzetti's complex views on violence. Mac, the central figure of the play, is a completely new character; he is Caucasian by race (and this subordinates the alien issue), he is an I.W.W. activist and frankly in opposition to Capraro's pacific anarchism. Suvorin is also an added element whose significance will be developed in later scenes. Act II opens with a scene in the office of District Attorney Salter. He confides to Haslet, a company security officer, that the case is in bad shape because of the absence of real testimony; his only consolation lies in the fact that the jury is sound; "It's a hundred and forty proof Shriners and Chamber of Commerce." Another difficulty lies in the presence of a horde of newspaper reporters. "It's going to make a stink you can smell from here to Siberia." Haslet asks about the judge's opinion of the case; Salter retorts, "When did a judge ever think? He's paid not to." Vail, the presiding justice, has a brief conversation with the district attorney. He is flattered by the public interest; it's turn­ ing out to be quite a case; "They're printing us verbatim this time. Great honor." As to the merits, "I long ago gave up trying to decide who was innocent and who was guilty. That's the jury's business. In this case we have an intelligent jury. . . . But not too intelligent." Salter then interviews Mrs. Lubin, a prosecution witness who

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wishes to change her testimony. She has identified Mac but he was the sole occupant of the room when she was taken to see him. Also, at the time of the crime, she could not see the action because of an intervening railroad tower. The distressed witness is firmly set on the right road by the district attorney; he asks her if she wants her son to know that she once ran a bawdy house? He also asks, "Do you believe in the constitution? . . . Do you reverence the flag? . . . Then why do you change your testimony to shield an­ archists? . . . Perhaps you are yourself an anarchist, Mrs. Lubin. Perhaps you have been bought off by the defense." Salter's next conversation is with the witness Bartlet, who is none too bright or brave. After being bullied, he is coached in the use of the term "dead image" which will be used in identifying Sacco. The scene closes with a conversation between Salter and Gluckstein, the defense counsel. Salter is friendly, but Gluckstein is disturbed by the fact that he is being shadowed. That, says his adversary, is nothing at all; it is just that there seems to be a woman in Gluckstein's life and the district attorney is mildly curious. The unfortunate defense attorney realizes that he is in a hopeless position and that it will mean the death of his clients. This whole scene is a masterpiece of dramatic writing. The ap­ parently miscellaneous elements are held together by the increas­ ing light they throw on the merciless and ambitious Salter. Vail's cheap cynicism is unlike Thayer's passionate and malicious na­ ture, but the two judges have the same desire for notoriety and public approval. Mrs. Lubin is a skillful compounding of Lola Andrews, of the Dedham trial, and Mrs. Brooks, of the Plymouth trial. The stupid Bartlet is Pelser. A completely new element is found in the character of Gluckstein; he resembles Moore only in that the western lawyer was having some sort of trouble with his marriage; in the original case Moore was in no way intimidated. Gluckstein, of course, has absolutely nothing of Thompson about him. Nevertheless, the change is thoroughly reasonable and within the bounds of dramatic probability. Sacco and Vanzetti had Moore and Thompson as their defenders, but only by a combination of luck and the earnest efforts of their friends. Men of their sort, in their position, could ordinarily have commanded nothing better than the services of a Gluckstein. The next scene is in the courtroom. Anderson skillfully allows the defense to have a considerable measure of success in exposing the weakness of the Lubin and Bartlet testimony. At last the great

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moment comes when the defendants are to take the stand. Mac speaks freely and not at all according to the ordinary rules for giving evidence. He is sure that he will be convicted; "Did you ever hear of a policeman hitting a capitalist ov.er the head?" He believes that the Constitution and the laws of the land are chiefly designed to preserve the economic order and to keep the working man in his place. "You forgot the Sherman Act till some of you figured out how you could apply it to the Labor Unions!" Judge Vail interrupts him with the question, "Have you no respect for the courts, sir?" Mac replies: "Certainly not. The courts are the flunkies of the rich." On cross-examination, Salter suggests that the labor trouble was used to cover up the fatal robbery, and in­ sists that the proved resistance to arrest was caused by conscious­ ness of guilt. He also brings out the fact that during the war Mac was a pacifist and agitator. A startling interruption comes when the foreman of the jury suddenly shows his animosity by trying to question Mac about the bombing of his house. Capraro takes the stand: Salter. You would destroy all government? Capraro. It will not be necessary. I would rather wait till it was so rotten it would rot away. That would not be so long now. [He smiles.] Salter. Who decides for you what laws you will break and what laws you'll keep? Capraro. I decide it. Salter. You set yourself above God, above all law, above all control? Capraro. I have met nobody I would trust to decide for my own

soul. Finally Suvorin takes the stand and makes the startling confes­ sion that he and his henchman are responsible for the crime; the missing Heine did the shooting, but Suvorin planned the holdup. He boasts that he would never have been caught if he had not come forward to save two innocent men; he did so even though he was under sentence of death for an earlier homicide. Salter attacks the confession as an obvious fraud and points out that Heine is dead, that Suvorin himself is under a death sentence, and that his daughter plans to marry Macready. The playwright's handling of the courtroom scene is thoroughly effective. He gives to Mac some of the damning views held by Sacco; Capraro continues to be a general equivalent for Vanzetti.

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The combining of Ripley's prejudice with the McHardy bomb­ ing is clever business, although such an outburst in a real court­ room might lead to a mistrial. It must be admitted, however, that little use is made of the very important quality of the original trial which arose from the fact that the defendants were aliens and in obvious conflict with the culture of the jury. Suvorin's confession is a general equivalent for that of Medeiros; but Anderson's gangster is very different from the almost feeble-minded Portuguese; the author may have thought that he could do better by developing the presumed strength and brutal­ ity of Joe Morelli or Mancini. Suvorin, unfortunately, continues to be a distracting element. The audience awaits the ultimate sig­ nificance of his fiercely primitive philosophy of life. The third scene of Act II continues the legal controversy after the verdict has been given. Anderson brings together a number of events from the long span of time between the hearing of the supplementary motions and the sentencing of Sacco and Vanzetti. Gluckstein argues before Judge Vail such matters as the retrac­ tions of Mrs. Lubin and Bartlet, and the pre-arrangement of ex­ pert Howard's testimony (the Proctor affidavit). The judge points out that the conviction did not rest upon the identification testi­ mony: The verdict of guilty was brought in on other grounds. In my opinion those grounds must have been the defendant's [sic] consciousness of guilt, as shown by their actions after the crime, and, furthermore, the general principles of the defendants, tallying, as they did, with the circumstantial evidence . . . the motion is therefore denied. Defense counsel immediately asks whether it is to be understood that Macready and Capraro have been convicted on circumstantial evidence and consciousness of guilt. Judge Vail. There was no other evidence which was not disposed of most ably during the trial. . . . Gluckstein. In that case there was no real evidence against these men! This scene reveals Anderson's skill and his weakness. The com­ pression of the arguments on the testimony of Mrs. Lubin, Bart­ let, and Howard into a compact and interesting exchange is crafts­ manship of a high order. Two echoes from Thayer are successfully merged: that judge emphasized the consciousness-of-guilt issue in

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his denial of the Gould motion; he is also alleged to have men­ tioned the cognate quality of Vanzetti's crime and his ideas, at the Plymouth trial. All of this is very well handled, and one could certainly not ask a dramatist to become any more deeply involved in the complexities of a trial record. But in larger and more important matters Anderson makes two bad mistakes. He misses the whole import of the consciousnessof-guilt issue; he does not show that the real significance lies in what act the men thought they were guilty of; he vaguely and wrongly suggests that guilty behavior is of itself not proof. He puts his defense attorney in an even worse position when he makes Gluckstein attack the probative force of circumstantial evidence, by its very nature. Admittedly, a playwright can neglect the whole area of legal dispute if he chooses to do so; but once he plunges in he is under some obligation to be moderately correct. This author was not writing fiction out of whole cloth; he knew very well that his audience was in attendance upon a play about Sacco and Van­ zetti. In Act III we return to the Suvorin restaurant. The hangers-on debate the various chances of death, commutation, or freedom on this night of execution. One unimaginative person is reported to have said: "Anyway, they're anarchists, ain't they? I should worry!" Suvorin enters disguised as a priest; the titanic individu­ alist has escaped from the death house and is on his way to free­ dom. The news is flashed that the men are dead, and the curtain falls as Rosalie demands that the act of injustice be cried out to the whole earth. Gods of the Lightning has elements of strength which may eventually bring it out of its present obscurity to a place of im­ portance in American drama. Not much more could be desired from the standpoint of technical virtuosity. The story moves rap­ idly, the hazards of legal technicality are overcome, there are enough interesting characters and they move about actively. All of this is very much to the good. There is a great deal of pertinent material—chiefly relating to the social convulsion—which Anderson makes no use of. How­ ever, he was under no obligation to do so; a play has room for so much and no more. Thus, in shifting the emphasis from the Ital­ ian Vanzetti to the American Macready, the author lost a vital quality in the original conflict, but it could be successfully argued

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that he gained a new significance through a more easily under­ stood hero. A tragedy, at least in our day, stands or falls with its characters; and in the chief figures of Gods of the Lightning there is, unfor­ tunately, both unevenness and confusion. Salter is excellent, but he is a type and we are not expected to consider him as an individ­ ual. Macready, chief figure though he may be, has the fatal weak­ ness of not seeming very important; and when he does speak he has a tendency to repeat himself. The two outstandingly defective characterizations are those of Capraro and Suvorin. The substitute for Vanzetti is painfully in­ adequate; Capraro appears briefly, has little to say, and makes a weak impression. Either as a Vanzetti, or as an imaginary figure, he has not had sufficient attention; he is the mere shadow of life. Suvorin is fantastic beyond belief; he has asserted his superhuman power on more than one occasion—and eventually supports his claim by wondrously escaping from a state prison on the day scheduled for his execution. Why, then, has such a Lucifer among poor human fools found it necessary to consort with ordinary punks or to devote his talents to the administration of a secondrate lunchroom? We are now ready for the ultimate question: What is the central idea of Gods of the Lightning? Such a query is entirely in order; it does not imply that Anderson should have written a thesis play; what it seeks to reveal is the dominant impulse which led to the creation of this particular literary work. More exactly, of course, it is a question of what an audience is likely to consider that idea to be. The play can be thought of as supporting the political views of Macready and Capraro. In this it fails; neither of the men offers anything more than a few banalities; Macready launches a bitter attack on existing institutions but has no tangible positive views, while Capraro's juvenile anarchism is miles away from the his­ torically grounded conclusions of the original Vanzetti. Another possible view would lead to the opinion that the trag­ edy is essentially a full-scale attack on the inherent cruelty of manmade institutions, and the corollary opinion that this flaw in or­ ganized society is best revealed through the inhumanity of such men as Salter and Vail. This view is more tenable, but it runs into a structural paradox. The difficulty arises through the fact that

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the bad men and the evil forces are less artistically emphasized than the good men and defeated innocence. Either of the above interpretations is subject to further confu­ sion because of the presence of Suvorin. The exalted atavism of this strange figure is nowhere apparent in the historical situation; whatever he may stand for, he is Anderson's personal contribu­ tion. His position in the play is, as a matter of fact, largely a de­ tached one. He throws no light on Macready's strength or weak­ ness, and his behavior is so unsocial that he has no meaning for either a reactionary capitalism or a fraternal anarchism. It looks very much as if Suvorin was first brought in as a technical device for the introduction of the Medeiros confession, and was then "pointed up" or developed without much regard to logic or sig­ nificance. The result is a character who is both melodramatic and irrelevant. There remains one likely explanation of the play: Gods of the Lightning is the embodiment of a heroic gesture—man goes down fighting. This would not be a new interpretation; the most pene­ trating criticism of Anderson yet written, that by Eleanor Flexner in her American Playwrights, finds this theme of heroism domi­ nant with increasing force throughout the whole writing career of the dramatist. But if this is the idea an audience carries away from a performance, it is regrettably thin and time-worn. It is little more than the suggestion that one does better to go out with a bang than a whimper—the melodrama of a bastard stoicism. Before leaving Anderson's first treatment of the famous case, it is worth noting that this play, like so much of the Sacco-Vanzetti literature, has its own private social history. Plans were made for a performance in Boston. John M. Casey, Chief of the City Licens­ ing Division, sent the text to Frank S. Deland, Corporation Coun­ sel, for an opinion. Certain sections of Deland's reply are of in­ terest: Unless changes are made in the various passages of the manuscript wherein the name of the Lord is used in such a manner as to be ob­ noxious to anyone, whether he be believer or otherwise, and which in many instances borders on the blasphemous . . . [he would be obliged to recommend suspension of the theater's license]. The profanity in the play is actually very inconspicuous; it is nothing more than the common language of rough men and re­ ceives no emphasis.

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But the opinion continues: There are also many passages in this manuscript that are so condemna­ tory of our government,, its form, its practices and its officials both national and State, that it would require but a little stretch of the imagination to term them anarchistic and treasonable. The whole play, it seems to me, is an attempt, while depicting the recent trial of Sacco and Vanzetti in Massachusetts, to bring into disrepute our judi­ cial officers, especially those officers who participated in the SaccoVanzetti trial. It is unfair to them and only tends to hold them up to ridicule and unfairness. It is in reality a dishonest attack upon our courts and our judicial system.7 This balderdash speaks for itself: the ready identification of ridi­ cule and treason—one wanders whether the lawyer had ever read the Constitution of the United States—the exemption of elected officials from public criticism, and so on—as Allinson put it—ad nauseam. The really infuriating fact about the opinion is the revelation that the society which produced Emerson and Thoreau was now content to have its plays certified by an artistically illiterate censor.

5 The technical competence shown by Anderson in Winterset is of the first order. The skills shown in Gods of the Lightning have been developed and refined: the result is a masterfully con­ structed play. In the light of this technical perfection it is all the more lamentable that Winterset fails as dramatic literature be­ cause of inconsistency and confusion in several of the chief char­ acters. Anderson appears to have achieved new stature as a craftsman while losing much of his understanding of that harmony of significances which is the very heart of tragedy. There are only two settings: outdoors, under the shadow of one of the great bridges whose foundations rest upon the lower east side of New York, and the basement quarters of the Esdras family in a tenement beneath this same bridge. Both places are utterly gloomy and devoid of all beauty. The tone is further darkened by the gray winter light and intermittent lightning, thunder, and heavy rain. In a brief first scene we meet Trock, a vicious and dangerous gangster who has just been released from prison. In conversation with his lieutenant, Shadow, Trock reveals his maniacal and indis-

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criminate disposition toward murder. In the next scene, indoors, Garth Esdras is exposed as a fear-ridden young man, rooted to his cellar quarters by guilty knowledge. Trock enters; he is angry at the reopening of an old case. A Professor Hobhouse has been studying a payroll holdup for which one Bartolomeo Romagna was executed some years before; the scholar has suggested that if a certain Garth Esdras had taken the stand, a different story would have been revealed. Trock has come to find out if anyone has been talking. Garth assures him that he has been mum and that only his father knows the truth. The gangster leaves, and the aged rabbi, his son, and fifteen-year-old daughter are left alone:* Garth. Oh, I'm a coward— I always was. I'll be quiet and live. I'll live even if I have to crawl. I know. [He gets up and goes into the inner roomJ Miriarnne. Is it better to tell a lie and live? Esdras. Yes, child. It's better. Miriamne. But if I had to do it— I think I'd die. Esdras. Yes, child. Because you're young. Miriamne. Is that the only reason? Esdras. The only reason.8 In the third scene, two hardened young tramps of seventeen exchange cynicisms. Mio, however, passionately reaffirms his mis­ sion in life; as the son of the dead Romagna, he will not rest in peace until the truth is known about the crime for which his father died. He also tells Carr how he has been driven out of his community as the son of a murderer. . . . I've tried to live and forget it—but I was birthmarked with hot iron into the entrails. I've got to find out who did it and make them see it till it scalds their eyes * Quotation from Maxwell Anderson, Winterset (Washington: Anderson House, "935)- 's by special permission o£ Harcourt, Brace and Co., Inc., holder o£ the copy­ right.

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and make them admit it till their tongues are blistered with saying how black they lied! A mixed crowd of the streets gathers to dance to a hurdy-gurdy: a sailor, shopgirls, a radical, a hobo, and others. The good-natured tawdry fun develops into an exciting and dangerous situation when the policeman on the beat tries to drive off the barrel-organ player. The officer is heckled and is obliged to fall back on the brutal authority of a drawn gun. Among those who try to placate him is an elderly judge, obviously a victim of amnesia. He speaks with mixed pedantry and pathos: Yes, but should a man die, should it be necessary that one man die for the good of many, make not yourself the instrument of death, lest you sleep to wake sobbing! Nay, it avails nothing that you are the law—this delicate ganglion that is the brain, it will not bear these things—! Gaunt is recognized by Garth as the presiding judge of the Romagna trial; he is persuaded to enter the Esdras basement. Mio talks to Miriamne with whom he has danced for a moment. Grimly, they reveal to each other their beaten state. Miriamne. I have no mother. And my people are Jews. Mio. Then you know something about it. Miriamne. Yes. Mio. Do you have enough to eat? Miriamne. Not always. Mio. What do you believe in? Miriamne. Nothing. Mio. Why? Miriamne. How can one? At this point, with great suddenness, Miriamne offers to go with Mio wherever he will; Mio is startled but soon falls into a mood of poetic exaltation: Why, girl, the transfiguration on the mount was nothing to your face. It lights from within—

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a white chalice holding fire, a flower in a flame, this is your face. And then Miriamne warns Mio that he must not seek Garth; death is in the air. Her words are supported by the appearance of Trock and Shadow, who can no longer bear the mad fury of his master. Dismissed, Shadow goes off; within a minute there is the sound of shots; two silent men in blue serge have obeyed Track's signal. The single scene of Act II is in the Esdras quarters. Gaunt, wordily but revealingly, talks of his long years of torture at the hands of public opinion: . . . Romagna was known guilty, and there was nothing to add. If I've endured some hours of torture over their attacks upon my probity—and in this torture have wandered from my place, wandered perhaps in mind and body—and found my way to face you— why, yes, it is so—I know it—I beg of you say nothing. It's not easy to give up a fair name after a full half century of service to a state. . . . Mio enters and asks his question; What does Garth know? He re­ ceives an easy but credible evasion. He realizes that he has learned nothing but his passion is no less intense. Esdras attempts to calm him with a heavy, mournful wisdom: . . . You loved your father, and I could have loved him, for every word he spoke in his trial was sweet and tolerant, but the weight of what men are and have, rests heavy on the graves of those who lost. They'll riot rise again, and their causes lie there with them. But Mio has sensed the identity of Gaunt: Then tell me what damnation to what inferno would fit the toad that sat in robes and lied when he gave the charge, and knew he lied! Judge that, and then go to your place in that hell! The judge summons up all the peace and tolerance of his years to

answer his accuser.

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. . . May you be a judge sometime, and know in what fear, through what nights long in fear, I scanned and verified and compared the transcripts of the trial. The angry debate continues. Mio asks Gaunt why his charge to the jury "accepted every biased meaning, distilled the poison for them!" The old man has his answer; if ever a judge were to de­ stroy the balance of his judgment—were to allow his prejudice to move his utterance—"he'd have a short way to go to madness." He continues with a very effective appeal: . . . Can you be sure— I ask this in humility—that you, who were touched closest by the tragedy, may not have lost perspective—may have brooded day and night on one theme—till your eyes are tranced and show you one side only? With the entrance of Miriamne, and the disclosure that she is Garth's sister, Mio feels that he has come to a weary defeat; he has learned nothing, and simple hatred is no longer possible. The unexpected appearance of Trock raises the tension among these fated human beings to a new level; Mio begins to sense that he is on the right track; Trock is ruthlessly planning to take the blabbing old judge for his last ride. The storm without is at the height of its fury. Then, in one of the great moments of the mod­ ern theater, the door opens to reveal Shadow, "white, blood­ stained and dripping." The dying man falls in his last agony be­ fore he can assassinate Trock, but enough has been said to make the whole truth known: the old crime was planned by Trock, the killing was done by Shadow, and Garth was of the gang. Mio turns upon Gaunt, and the judge answers him in words which mark the central difficulty in the interpretation of the play. Mio.

. . . It was Shadow killed him! Now let the night conspire with the sperm of hell! It's plain beyond denial even to this fox of justice—and all his words are curses on the wind! You lied! You lied! You knew this too!

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Gaunt. [Low] Let me go. Let me gol Mio. Then why did you let my father die? Gaunt. Suppose it known, but there are things a judge must not believe though they should head and fester underneath and press in on his brain. Justice once rendered in a clear burst of anger, righteously, upon a very common laborer, confessed an anarchist, the verdict found and the precise machinery of law invoked to know him guilty—think what furor would rock the state if the court then flatly said; all this was lies—must be reversed? It's better as any judge can tell you, in such cases, holding the common good to be worth more than small injustice, to let the record stand, let one man die. For justice, in the main, is governed by opinion. Communities will have what they will have, and it's quite as well, after all, to be rid of anarchists. Our rights as citizens can be maintained as rights only while we are held to be the peers of those who live about us. A vendor of fish is not protected as a man might be who kept a market. I own I've sometimes wished this was not so, but it is. The man you defend was unfortunate—and his misfortune bore almost as heavily on me.—I'm brokenbroken across. You're much too young to know how bitter it is when a worn connection chars and you can't remember—can't remember. The police enter seeking the lost judge, and Mio denounces Trock. But Garth and Miriamne have betrayed his cause and spir­ ited away the body of the dead Shadow, the only tangible evidence. The third and final act finds Mio confronted by the hopeless­ ness of escape. Ineffectual plans are conceived or attempted but Trock and the men in blue serge block every exit from the area. Old Esdras has changed; he is eager to save Mio even though it will mean the death of Garth. Carr returns, and vaguely sensing

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the danger offers to go for help; but Mio suffers from despair or paralysis of will. Basic in his changed attitude is his feeling for Miriamne: . . . I think I'm waking from a long trauma of hate and fear and death that's hemmed me from my birth—and glimpse a life to be lived in hope—but it's young in me yet, I can't get free, or forgive! But teach me how to live and forget to hatel Without real hope, Mio goes off. He is shot and staggers back to die. Miriamne seeks and finds the same fate. Garth and Esdras are left with their dead. The old man speaks their epitaph: Well, they were wiser than you and I. To die when you are young and untouched, that's beggary to a miser of years, but the devils locked in synod shake and are daunted when men set their lives at hazard for the heart's love, and lose. And these, who were yet children, will weigh more than all a city's elders when the experiment is reckoned up in the end. Oh, Miriamne, and Mio-Mio, my son—know this where you lie, this is the glory of earth-born men and women, not to cringe, never to yield, but standing, take defeat implacable and defiant, die unsubmitting. . . . This summary of Winterset cannot do justice to the structure of the play. The necessary exposition—the revelation of the ante­ cedent situation—is both clear and subordinated to the main ac­ tion. The bringing together of Garth, Trock, Gaunt, and Mio in Act II is accomplished with a breath-taking swiftness which is at the same time thoroughly natural. The play of hatred in that scene powerfully sustains the interest of the audience. And the third act, from the structural point of view, is very strong; all possibilities of narrative surprise or complexity have been dis­ posed of—one awaits the tragic destiny of these lost souls. The play is an unusual but successful epilogue to the story of Sacco and Vanzetti, and Anderson has shown great imaginative force in choosing to deal with the continuing life of the chief victims of the catastrophe. His fusing of Sacco and Vanzetti into a single figure is certainly justified, and it should be observed that

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the hovering spirit of the dead Romagna is close kin to the nature of the real Vanzetti. From the point of view of social criticism, Winterset is equally effective. Act I, scene iii, should be read in its entirety in the light of the prejudices, fears, and hates which have been examined in Part II of this book. With an amazing display of selective artistry, the dramatist has brought into the active life of the theater a hundred elements of social tension which existed in the real his­ tory of the case. In all of this there is improvement over the slightly obvious conflict of Gods of the Lightning. It will also be noted that the inexplicable Suvorin has vanished. In his place we have Trock, Shadow, and Garth—a reasonable projection of the Morelli gang. It is quite likely that Anderson had given further study to the grim forces which created the historical tragedy. Of chief value among the new elements is the character of Mio. Sacco had a son, who, by the way, has made for himself a welladjusted and happy place in society. Vanzetti was childless. But this Mio is a completely logical creation; in spirit if not in flesh, in many hearts if not in one, he was the inevitable son of his progenitor's fate. His passion and his anger have the force of philosophic necessity. There is, then, a great deal to be said for Anderson's play, both as Sacco-Vanzetti literature and as effective writing for the stage. If the critical analysis had at this point exhausted all the material of Winterset1 both the playwright and the critics of the drama would be a good deal happier. But something must be said about Gaunt, Miriamne, and Esdras—three characters who well-nigh wreck the superb structure. The relationship of Judge Gaunt to Webster Thayer is of no great importance. It is improbable that Thayer would ever have engaged in the soul-searching of his dramatic counterpart, even if he had had the assistance of amnesia. But there is no rule of the drama that requires a playwright to confine himself to the realities of such a man as Thayer. Judge Gaunt's weakness as a character is entirely a matter of internal probability—the qualities he evinces within the play. In a large number of lengthy speeches he reveals his legalistic and unimaginative disposition, but there is absolutely nothing to suggest that he might have been anything other than wrong in judgment or stupid in his understanding of human nature. In fact, when confronted by Mio, he does rather

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well; he pleads quietly for an objective scrutiny of his acts, and asks that Mio examine his own furious soul. And when he speaks of the madness which would descend upon an unjust judge, his words have all the force of reasonableness. This is Judge Gaunt up to the point when it is suddenly revealed that Romagna was innocent and that the court knew it. The judge has but one speech of explanation, before he leaves to appear no more. He offers a very limited and special plea for his great crime: it is simply that the dignity of the established order is more worthy of preservation than the life of a fish ped­ dler. That is all. There is no explanation of the manner in which he had tortured himself into his hundreds of words of previous lying, no passionate burst of anger or relief at the disclosure of his guilt, no damning of Romagna or Mio whom he must have hated. Artistic necessity or the mere logical completion of his character demand a mighty counterweight to pull down the elaborate char­ acter. structure he has created through two long acts. Analogy is not proof, but it would be well to consider the treatment of another evil old man. Lear was proud, vicious, and unnaturally cruel. He learned a bitter lesson. Then there follow those speeches of profound significance in which the old father speaks to Cor­ delia. Why Anderson cut Gaunt short as he did is beyond comprehen­ sion. It does irreparable harm to a figure which has been built up with great detail, and it leaves Mio with nothing to say. Miriamne is more of a symbol than a living reality; nevertheless she is generally credible. One does wonder at her sudden affection for Mio, but once that inspired act is out of the way she emerges as a creature of shy dignity and affection. The difficulty with Miriamne is her effect upon Mio. Because of their love the entire emphasis of the play alters in the third act. It is not enough to say that love opened the eyes of the boy to a new and better view of life. Such a change must be accounted for and tested. Ander­ son's other plays, regrettably, throw light on this problem. On numerous occasions he outrageously distorts tradition or ruins the existing structure of his plot by introducing a mawkish and banal romantic love; this occurs in Night over Taos, Elizabeth the Queen, Mary of Scotland, and at its worst in The Masque of Kings. Flexner considers this tendency to be the result of the play­ wright's incurable romanticism. This may be so; or it may be a chronic concession to the tradition of the commercial theater.

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Finally, Esdras. One wonders what the old man stands for. He rejects the worth of all knowledge, and has no faith. He is the quintessence of negativism. Of course there are such people, but how can these qualities be reconciled with his fierce desire to save Garth, and his gentle love for Miriamne? What strange and un­ explained reconstruction takes place in his soul between the end of the first act and the final curtain? First, he tells his daughter it is better to live and to tell a lie; then, over her dead body he asserts the supreme value of those who died young and undaunted. There is no explanation, other than that offered for a similar quality in Gods of the Lightning— Anderson's predilection for linking melodrama to a spurious stoicism. He does not seem aware of the fact that the world is no longer content merely to keep its head "bloody but unbowed."

6 It is evident that no play has yet been written which deals pene­ tratingly with the Sacco-Vanzetti case and is at the same time good theater or important dramatic literature. Yrondy follows the story closely but has no competence as a playwright. The Behrman and Thurber-Nugent plays are essentially marginal; they are excellent plays but barely touch the available material. Furthermore, they do not embody the primarily tragic quality of the case. The less said about the radio drama, the better. Gods of the Lightning could fairly be described as a play "sug­ gested" by the events of 1920 to 1927; it has something of the prosecutory spirit which was so important a part of the case, but it has as its chief figure Macready who is a very different person from Vanzetti. And it is inevitable that the tone of a tragedy should de­ pend in large measure on the character of the protagonist. Winterset has merits and substance beyond any of the other plays, and there is a great deal of the historical narrative worked into it. Even better, there is an imaginative projection, in Mio, of funda­ mentally important emotional qualities. Then, because of the meaningless confusion in Gaunt, Esdras, and the Mio-Miriamne love relationship, the audience must content itself with two recur­ rent Anderson motifs—flaming love and heroic but meaningless death.

Chapter X V l

T H E NOVELS ι THE CHIEF literary use of the case has been in prose fiction; since 1927, no less than eight novels and a satiric sketch have drawn heavily on the Sacco-Vanzetti material. Nearly all of these works are serious, well-written, and entitled to critical respect. The group includes the following titles: 1927 1927

1928 1928 1930 1934 1936 1943 1946

Louis Thinet. Le drame Sacco-VanzettL C. E. S. Wood. "God's in His Heaven—All's Wrong with the World," in Heavenly Discourse (a collection of satiric conver­ sations). Upton Sinclair. Boston. H. G. Wells. Mr. Blettsworthy on Rampole Island. Nathan Asch. Pay Day. Bernard De Voto. We Accept with Pleasure. John Dos Passos. The Big Money. Ruth McKenney. Jake Home. James T. Farrell. Bernard Clare.

Each of these writers approaches the case quite independently, and an early or late date in the series has no importance. The best critical procedure will be to consider first the fiction which uses the Sacco-Vanzetti material in the general background, and then to go on to those novels which make the events of the case an integral part of the narrative. Wood's sketch is discussed in the first group. Sinclair's Boston—which is totally about the casecomes at the end. The Sacco-Vanzetti fiction, contrary to a widely held view, has not been written exclusively by extreme radicals. McKenney, it is true, is an excommunicated Communist; and Wood is an attrac­ tive blend of philosophical anarchism with old-fashioned Popu­ lism. Wells is a socialist of markedly constitutional outlook. Far­ rell would probably agree to being called a "scientific Marxist," and at any rate is detested by the present adherents of the Com­ munist party line. Sinclair might not accept the characterization, 421

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but he is popularly thought of as uniting Utopian socialism with a thoroughly realistic fictional technique. Asch and Dos Passos are objective, ironic, and artistic; in fact, the greater writer is repeatedly attacked for his refusal to embody positive doctrine in his work. De Voto is an editor, a critic, and preponderantly liter­ ary in his thinking habits; political radicals have no use at all for him, and the literary left is far from enthusiastic about his criteria. Thinet, admittedly of no great importance, is openly hostile to the executed men. It is impossible to find any comprehensive political formula which would include so mixed a crew. Each wrote about Sacco and Vanzetti, and that is all they have in com­ mon. The pleasant art or vice of novel-reading is universally prac­ ticed, and out of it usually emerges an elementary literary judg­ ment. The trouble is that, once the story has been summarized, critical evaluation is prone to wander about in rather muzzy fash­ ion. Fiction is a relatively young literary form and does not have behind it, as poetry and drama do, a well-developed set of stand­ ards for its analysis. However, it may be worth-while to suggest a few of the modes commonly met with. There are novels in which the author is chiefly concerned with portraying the quality of an epoch; Reade's The Cloister and the Hearth will serve as an example. In such books chief emphasis falls on the people's political and economic way of life, their habits of thought and their superstitions, the manner of dress, domestic life, and so forth. Of much the same kind are the novels of manners, wherein the customs of an age are revealed through the lives of a chosen set of individuals. Vanity Fair and Anna Karenina are fiction of this type, although they have much else in them. Another domain in the world of fiction includes those books which have as their chief intent the full exposition of their main characters. The work of Conrad and James is predominately of this type. Into his novel, whatever its nature may be, a writer of fiction is bound to put much of himself; in one way or another he im­ presses upon his work his own attitude toward life. One man will view the world as a determinist; his characters will respond with a general automatism to their environment, or develop along lines established by their genetic inheritance. A different writer will be pretty thoroughly convinced that mankind has some free-

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dom of choice, and his characters are likely to be motivated by ethical or philosophical principles. Many writers of fiction arrive at no personal conclusion about life—or arrive at the opinion that they have no right to a fixed conclusion—and consequently write "with artistic detachment, religiously avoiding any suggestion of thesis or doctrine. Novels, of course, are nearly always mixtures of the several em­ phases and attitudes which have been suggested. It would be the ultimate in pedantry to classify any particular book exclusively in one type, or, for that matter, to attempt a quantitative analysis. Nevertheless, it may be useful to have this brief listing of the qualities one is most likely to run into in modern fiction.

2 Nathan Asch's Pay Day is an account of a few hours in the life of a young New Yorker; the date is August 22, 1927. Jim has had the average education, and his mental processes are quick enough. He is, to his own cost, rather immature emotionally, and this de­ fect is felt keenly by him because he has not yet made his perma­ nent adjustment in society as a worker. He is really little more than a flustered and hurt boy who feels the world to be against him. His escape from his uncertainty takes the form of feeble vice and magnificent fantasies; the contrast between his active and his dream life is well carried out; he has a few dollars and plans masterfully, or he has visions of splendid women while consorting with simple or tawdry girls of his own lost sort. The author has a clear ironic purpose: Asch places Jim's per­ sonal life against the background of a great social catastrophe, the Sacco-Vanzetti case. At numerous points in the narrative, Jim is vaguely conscious of the fact that something is happening which is of larger significance than his private defeats; but he never really attains any social conscience. The boy sees the flaming headlines and mutters: "Well, they were Reds, and they were wops, and they raised hell, and now they had to pay for it." 1 A girl neighbor is accidentally beaten up by the cops at the Union Square demonstration; Jim doctors her and, for a moment, he is furiously angry. He goes out to take a hand in the fight, but is bewildered and deflated when a young policeman gives him a friendly greeting. Shortly afterwards he is

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traveling on the "El" and can think of nothing but beautiful women. In a tavern, a newspaperman says that Sacco and Vanzetti are being murdered that very night in Boston; a pompous state sena­ tor angrily replies that the men are getting what was coming to them. For a moment it looks like a fight, with Jim in the middle of it, but everyone is too drunk to carry on a continuing con­ troversy. Later, in a subway car, an unknown passenger laments the indifference of the public to the tragedy: A kept woman blackmails her lover. The newspapers shriek. A bank clerk steals some of the bank's deposits. Headlines. Two men are hounded and framed into death. More headlines. Always the same. The sports page is more interesting, the comic page more amusing. Why read what's under the headlines.2 This transitory contact, coupled with the weight of public hys­ teria, for a moment really illuminates Jim's mind; but he slips back into an easy cynicism, thinking of how his brother was killed in the war and "nobody objected." 3 The general merit of Asch's novel is considerable; although it is not a great book, Pay Day is a carefully written piece in the realistic convention. The use of the Sacco-Vanzetti case as the chief contrasting element—a symbol of values more important than those of Jim's immediate pleasures—was well chosen. The irony is perhaps a little overdone because the structure is too obvious. H. G. Wells has written many novels of fantasy where the scene is laid in some outlandish place. The chief figure is usually a con­ ventional Britisher who wanders uncomprehendingly through events which have allegoric meaning. This is true of Mr. Blettsworthy on Rampole Island. The hero is cast ashore in a gloomy and forbidding land where primitive savages of Patagonian qual­ ity fight among themselves. One of their gods is Ardam; his fierce and brutal nature indicates that he is the spirit of war. The in­ habitants are also constantly hunting prehistoric monsters, the Megatheria; these have terrorized the land and the author gives them the soulless, crushing force of established human institu­ tions. After Mr. Blettsworthy returns to his native England he has other strains to endure, among them a sobering love affair and marriage. All of this is too much; he collapses mentally and emo-

THE NOVELS

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tionally, and it is a long time before he is able to make a come­ back. Furthermore, it develops, a genuine historical event was a secret cause of his collapse; it paralleled so much that he had been through on Rampole Island.* It was to Graves alone that I was able to tell of the hidden crisis through which I had passed, because of the long accumulating stresses upon my mind produced by the trial, the appeals, the prolongations and delays, the retrial and the execution of Sacco and Vanzetti in Massachusetts. . . . [I considered] the revision of their sentence was one of those issues that test the moral and intellectual values of a great community. If I err in that judgment, I err with men like Frankfurter of Harvard, and Thompson the eminent jurist. . . . And I was impressed beyond measure by the unimaginative hardness, the poverty of sympathy, the vindictiveness against "Radicals" and reformers, displayed by great masses of comfortable and powerful people throughout the world. I was less concerned with the rights and wrongs of the trial than with the way people thought and spoke and wrote about those rights and wrongs.4 These sentiments are much like those which Wells was expressing at the same time in his journalistic essays. He also has something to say about Sacco and Vanzetti which is a little less sociological and more touched by human feeling. In his revery he sees Ardam preparing again for war, And those two men perpetually on their way to execution I saw in the likeness of two commonplace, luckless, excuse-making visionaries, who had come to the Island as cheap, ill-trained missionaries from some source unknown.5 On Rampole Island, the microcosm of a sad and stupid world, they were hounded by a hostile throng who screamed at them: Come to teach us this gorge isn't good enough. Come to start a hunting of the holy Megatheria. Come to persuade us to eat no more of the Gifts of the Friend [the church?]. How could we live without the Gifts of the Friend?6 And so they were torn to pieces and everyone involved in the af­ fair had to eat of the sacramental flesh. * Quotation from H. G. Wells, Mr. Blettsworthy on Rampole Island, is by special permission of Mrs. G. P. Wells and the estate of H. G. Wells.

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THE LEGACY OF SACCO AND VANZETTI

In these passages Wells is concerned with two separate matters: the sanity of society, and the quality of the men. On the first prob­ lem he is quite clear—one need not have a wide or certain knowl­ edge about the question of legal guilt to recognize that the world was acting in a cruel and senseless fashion. With respect to the second, the allegory is attractive but not very apt; it was through no election of their own that Sacco and Vanzetti found themselves among the cannibals. They fell among savages by chance and it was some time before they understood the opportunity which lay before them. James Farrell's Bernard Clare, which was published in 1946, returns us to the realistic tradition in American fiction. This is the familiar story of a young man who must find himself in an ominous and none-too-happy world. The events cover a span of several months and have to do with bitterly unpleasant work, cheap lodgings, a loving but sad union with a woman, and a meas­ urable growth in his knowledge of his own nature. The time is in the summer and fall of 1927. There are a number of current incidents which lead Bernard to an understanding of the world about him. Chief among these is the Sacco-Vanzetti case in its final stages. Farrell is almost cer­ tainly right in showing that the common people of the working world were largely hostile. Thus, an older man, a fellow-clerk in a cigar store says, "Think of the noive. . . . They ain't even citi­ zens and they come over here and bite the hand that's feedin' 'em." 7 When Bernard suggests that the men have not had a fair trial, he is answered, "Fair trial? Why, they ain't Americans." 8 In fact, the prevalent idea seems to be that it would be a good thing to burn anarchists and similar Utopians, as a class. A chapter of considerable length is devoted to the death watch staged by sympathizers in Madison Square on the night of the executions. The tenseness of the crowd and the watchful nervous­ ness of the police convey the mood of the scene: From every side they [the police] were ringed by eyes of hostility, of hate, of fear, of concentrated anger. The eyes of the crowd ringed them, just as the police ringed the crowd with guns and clubs. The weapons of the police were these clubs and guns. The weapons of the mass were their eyes.9 Groups which threaten to become too large or cohesive are broken up. Finally, signs are posted in the windows of a communist news-

THE NOVELS 427 paper office. "Sacco Murdered." "Vanzetti Murdered." The mass groans and cries; there are episodes of individual hysteria; the "International" is sung. On the following day, after reading the papers, Bernard bursts into tears. "The red flag of the sun, the green flag of money, the black flag of death and night. Sacco and Vametti had died for the red flag." 10 The use of the Sacco-Vanzetti case by Asch, Wells, and Parrell is in each instance fairly characteristic of the writer's fictional technique. Asch, who is obviously using a modified Joyce tech­ nique, is the most photographic and non-interpretive. His conclu­ sion—or perhaps, more fairly, his implication—as to the education of society is almost wholly pessimistic. Jim has learned nothing, and ten years hence will probably not remember even the names of the men who died. Wells is primarily and rather superficially concerned with the kernel of meaning; he writes as a social phi­ losopher and deliberately neglects personal feeling or tragic tone. By using a more sensitive character, Farrell suggests that there is some hope for society and that the sacrifice was not completely without force. The passages given from Farrell do not really do justice to the subtle mood of his handling of the case; Bernard. Clare is too complexly integrated for fragmentary quotation. All three of these novelists see the same significance in the Sacco-Vanzetti case; to them, as to the historians, the failure of the people rested in their blindness to the fact that the individual is unable to escape the harm done by a blundering social intelli­ gence. These writers imply that in this day a man places in trust with his fellows a good part of his soul, and they cannot maim themselves without his suffering hurt. 3 Among other distinctions, Charles Erskine Scott Wood is the dean among writers on Sacco and Vanzetti. When he wrote his satiric sketch, he was seventy-five years of age; it is therefore all the more curious to find that his contribution is the only humor­ ous treatment of the case. Perhaps that is not quite true; one other writer had a genuine comic sense, as we shall see when we come to Vanzetti's own work. Wood was born in 1852. After West Point and service in the Indian wars, he became a successful lawyer in the Northwest. In his later life he wrote extensively as a political and social com-

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THE LEGACY OF SACCO AND VANZETTI

mentator. He died in 1944. His work is marked by candor, the masculine humor and language of the growing West, and a pene­ trating knowledge of human nature. Floyd Dell places him in the tradition of Aristophanes, Lucian, Rabelais, Swift, Anatole France, and Mark Twain, and this is eminently just. Much of Heavenly Discourse was written for the old Masses, but the Sacco-Vanzetti sketch, "God's in His Heaven—All's Wrong with the World," was first published in the collected printing of 1927. Nicola and Bartolomeo appear before the throne of God and tell their story. Numerous lay saints, including Robert Ingersoll, William Lloyd Garrison, Mark Twain, Lincoln, and Daniel Webster, express indignation as the new arrivals give the details of their trial. Throughout, there is a frequent refrain in Webster's famous words, "Massachusetts. There she stands—" * Each time, it is followed by an increasingly brutal comment: "In her soiled underclothes," "The poor old whore," ". . . fountain of every narrow, intolerant, persecuting bigotry that has cursed this puri­ tan polluted land." 11 The Recording Angel stands with pen poised over the pages of the Book of Infamy. Wood knew the case thoroughly. On the law alone: (1) he con­ trasts the British and American criminal procedure, (2) examines the Proctor deal, (3) mentions Salsedo, Splaine, and Gould, (4) weighs the ballistic testimony and the consciousness-of-guilt issue, (5) exposes Thayer's- prejudice—God observes to Ingersoll that "My son might instruct you, Robert, on the fairness of trials when the Ruling Order calls for blood" 12— (6) the appeal to the patriot­ ism of the jury, (7) the cross-examination of Sacco, (8) the failure of the prosecution to trace the stolen money, (9) Vanzetti's simple nature, (10) Sacco's domesticity, (11) with unusual clarity, the in­ significance of the Medeiros confession, but the great importance of the total Morelli gang picture. Wood's long years of legal exer­ cise enabled him to do a fine job of compression. He is equally acute in sensing the elements of social inadequacy: the ghost of the Haymarket Affair, the subserviency of judges and district attorneys to the desires of the propertied interests, Fuller's ranting in Congress against the Reds, "that other disgrace, Mitchell Palmer, the Quaking Fighter, Attorney General of the United States for Ego Wilson," 13 and Cardinal O'Connell's serv­ ing of tea to the grief-stricken Luigia Vanzetti. * Quotation from C. E. S. Wood, Heavenly Discourse (New York: Vanguard, 1927), is by special permission of the publisher.

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His attack is at times direct and in other places based on mali­ cious perversion of well-known language. In speaking of the Gov­ ernor and his Advisory Committee, he notes that "Their master was their class. The Ruling Class. Which was howling for blood. Remember that the ruling class that knew none of the facts but only that these men were 'Reds,' was howling for their blood." " Or, more pungently, "The breaking waves of hate dashed high on a stern and hidebound coast." 15 With their story told, God can no longer control his disgust. Satan has already refused to have anything to do with Thayer. Therefore: God. Take up the' Book of Infamy. (The Recording Angel lifts the book and his pen.) Write in imperishable black: WEBSTER THAYER Leave him alone forever on that page. To Time I leave the names of Alvan T. Fuller, A. L. Lowell, S. W. Stratton, Robert Grant. (A ter­ rible hissing is heard as from a den of serpents.) Leave them to Time. (The hissing ceases.) Bartolomeo—Nicola—look at me—NOT GUILTYI (A great flashing of wings. Heaven trembles iuith song. "Hosanna"— "Hallelujah." Souls and angels go out—leaving GOD upon his throne, with JESUS by his side.) Man! ManI Jesus. Patience, Father. He will learn mercy. He will learn love. God. Let us go to one of the unpeopled stars and be alone a while. (They go out.) 16

4 Bernard De Voto, critic, historian, and editor, has written sev­ eral novels; one of these, We Accept with Pleasure, appeared in 1934. It received favorable reviews, reads well a dozen years later, but has not caught the public fancy. The scene is laid chiefly in and about Boston; the story begins in 1927. A large number of well-drawn characters reflect the va­ riety and oddity of New England temperament, and especially the internal conflict of the community. Although it is by no means a pleasant or a joyful book, it certainly conveys the impression of authority and accuracy. Five men, all important to the story, are affected to varying de­ grees by the events of the Sacco-Vanzetti case in its last agonized

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THE LEGACY OF SACCO AND VANZETTI

phase. Each of these men is tied to the others by one or more of several bonds: blood relationship, class brotherhood at Harvard, or comradery in arms during the war. In age all are between the middle thirties and the early forties. Loring Gage was editor of a liberal magazine in Chicago for a number of years—until it was bought up by a gross money­ maker. He has come back to Boston, a defeated liberal, without purpose in life or faith in himself.* Who lets his work slide while he tries to get justice for two victims of class hatred? Not me, not the ex-editor of The Statesman. I wrote a lot about it, Ric, I never ventured to do anything about it.17 Ric Barreda is a man of a very different type. Sophisticated, wealthy, at home in the core of Boston society, and a war hero as well, he relentlessly pounds away in behalf of the imprisoned men. Day after day Ric drove to Boston where he was one of the small group who were exhausting the last resources of law and publicity on behalf of Sacco and Vanzetti. Interfered with by clusters of maniacs, emo­ tional drunkards, humanitarian propagandists, literary people, and mere fools, they were fighting the inevitable with a desperate and in­ genious intelligence in which no hope entered.18 Ric is a realist. Don't think I'm shocked to discover that two poor Wops can get caught in the gears. It isn't a revelation to me that the Yankees can kill somebody who has scared them.19 Loring thought he saw with equal clarity but there was a latent naivete in his character: I'd heard of power before, I was always talking about power and I sweetly supposed I was helping to produce it. Well, did I suppose that those who had power didn't intend to use it?'Was I under the illusion that those in possession didn't intend to stay there? Hell, it was just another case of inviting people to be nice.20 The friends discuss a third member of their group, Leonard Flint. Ric has been having a hard time with Leonard, who is an extreme neurotic, passionate, and hysterically involved in the de­

fense. * Quotation from Bernard De Voto, We Accept with Pleasure (Boston: Little, Brown and Co., 1934), is by special permission of the publisher.

431 I've got that fool away from here, thank God. . . . In three days more he would have had us all mobbed or in jail, and then nothing what­ ever could have been done. He loves justice so passionately that he would presently have bombed the State House and got those of us who were working for it clubbed by the police. So I got a thousand dollars of his father's money to institute a search for evidence in Michigan and sent Leonard to make the search.21 THE NOVELS

A few days later, Ric and Loring meet again at the home of Jonathan Gale. Their host is the finest-grained man of the group; an established lawyer, his asceticism is palatable because it is the expression of an innate purity of temperament. Ric, for the first time, is angry; a really good lawyer is needed, and none can be had: "This is the first generation that hasn't spawned a few Yankee heretics. Up till now you could always find someone who wasn't scared. Hell, I can't get even an Irishman." Loring smiled in lamplight. "The Irish have grandsons to get into the Norfolk Club. Saltonstall Xavier O'Halloran." "Why do we always expect the dispossessed to fight for the dis­ possessed? It never happens." "Well," Loring said, "don't forget your victims are against God too." "Ah," Ric said with utter sweetness, "but there is the tradition of the Massachusetts bar." 22 Several possible choices are discussed. One legal light has stated his willingness to work for the reform of appellate procedureafter the men are killed. Another, descended from a long line of famous fighting democrats, wishes them well and offers two hun­ dred dollars to the committee. Jonathan has listened in silence. Now his mind is made up: "I don't know whether your Wops are guilty, Ric. I do know they've been lynched." And he insists upon entering the case despite Ric's warning that Jonathan in turn will be lynched by his own class. Leonard Flint returns from Michigan in a state of tortured agony. He can think only in terms of bombing Harvard College and the public buildings of Boston, or of statues to Sacco and Vanzetti on the Common; his language is partly his own and partly quotation from Vanzetti. But his tearful, shaken nature collapses and he finds himself feebly attempting to slobber over a lovely young cousin, As the girl realizes, "A little rape would heighten his sense of martyrdom." 23

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THE LEGACY OF SACCO AND VANZETTI

As Jonathan goes about his legal work on behalf of the defense he becomes profoundly interested in the general state of public opinion; to him "It makes all the difference." And he is puzzled: Taxi drivers, newsboys, washerwomen, subway guards—I ask them all. It's always "Hang the bastards." . . . even State Street has more sym­ pathy. Are there only Ric and Leonard Flint and I?24 Within a few days he receives a note suggesting that embarrass­ ment might be avoided if he would submit his resignation to the Norfolk Club; Ric's prophecy has come true. His answer, on August 20, 1927, is brief; "I do not care to accept your sugges­ tion." Loring and Ric are in the Beacon Hill area on the final day. They see a tawdry picket line bowled over by charging police. At lunch they are joined by Jonathan and by Gage Ewing, fifth of the group; Ewing is an associate professor of bacteriology at the medical school. He is completely cynical and views the life of society as nothing more than a complex form of biological warfare. The scene is suddenly shifted to Leonard Flint on the picket line. He and others engage in an unequal fight with the charging police; there is blood, torn clothing, and severe pain. At the luncheon table, Loring and Ric again assert the view that although Sacco and Vanzetti are innocent, the real issue is the lynching. After the meal they walk the heavily policed streets; the air is tense and the slightest mistake could bring the machine guns into action. "Mere chance could start a massacre." "Accident is the only religion," [Ewing] said. "When you learn the laws of probability, Loring, you'll have something better than the Con­ stitution." 26 Then, as a scientist, Ewing protests the exaggerated concern of his friends over the men who are to die within an hour. "It's cast wrong. . . . You should have one Christ and two thieves, and you've got it the other way. Two ChristsI In the Near East I saw them a thousand at a time. A thousand Christs bloated by typhus and their feet rotting. . . . Didn't you observe any corpses in France, Jonathan? What shocks you, what's new to you? Boston starves ten times as many every day, back of the Hill. It strangles at least two infants every hour. Fools driving automobiles make cadavers of two Bostonians a day, and they're just as dead. But toasting two Wops makes you cry."

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"You're forgetting the universal justice," Loring said. "It must be filtrable. I can't stain it in my lab." 26 But Gage Ewing has his concealed emotional response to the sit­ uation; while his friends walk on into the night, he telephones a woman who almost hates him to come to his rooms; she agrees, remarking, "What vermin you are, Gage." The hour of execution has passed, and Loring can hardly be­ lieve that it has happened. Ric's reply closes the Sacco-Vanzetti episode: "It always could. Observe, the city has not risen. I prom­ ise you it hasn't even fallen." 27 De Voto's use of the Sacco-Vanzetti case is specific and cleancut. He makes no attempt to deal with the legal record and the question of guilt. Nor does he in any way bring in the character of the prisoners. His purpose is only to study the impact of the event upon one level of society; he does so by raising the simple issue of life or death. Artistically, he chooses to work with men who were on the side of the defense, or at least neutral. But his characters are sufficiently complex, and their experience various enough, to enable the reader to draw a great many inferences about the general state of the public mind. The use of figures of a high order of intelligence yields an in­ terpretation of the catastrophe which is subtle and realistic. Loring's sense of defeat antedates the final phase of the case; now, however, it is intensified. Gage Ewing's self-protective rejection of any principle of social morality is an especially clear explana­ tion of the inaction which marked so many silent intellectuals. Leonard Flint, in the light of the total historical record, seems to be something of an exaggeration; such men undoubtedly did participate in the defense and must certainly have caused a great deal more trouble than they were worth. Nevertheless, it should be remembered that some of the best and hardest work was done by the literary crowd for which De Voto has so little respect. Ric Barreda and Jonathan are the two men in the group who finish their job with a measure of dignity. The novelist has, of course, offered the usual warning that his characters are entirely imaginary. He must, however, have drawn upon his knowledge of the way in which real men acted. Ric Barreda is a composite fig-, ure; he unites the qualities of the most competent members of the Defense Committee with the philosophic reserve and humor of a Santayana. It is significant that he is the leader of both the

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THE LEGACY OF SACCO AND VANZETTI

more realistic radicals and those who merely "work" for the defense. And only Ric has been successful in combining strenu­ ous effort with historical perspective. Jonathan is a younger and more modern William G. Thomp­ son. He enters the proceedings very late but his participation frees him personally for the first time in many years; later in the story he rejects the sterility of his native state and goes off to Washington to do a man's work. Other events influence him in this decision, but the case is central to his latter-day education. We Accept with Pleasure presents a clear picture of the social conflict in New England which raged about the Sacco-Vanzetti case. The work of other writers is perhaps more overtly vigorous, or more laden with emotion, but De Voto's novel has the merits of subtlety and complexity. With the passage of time these quali­ ties may be valued more highly and more justly. 5 Ruth McKenney's Jake Home is the story of a communist labor-organizer. He has come up the hard way from the coal mines, through the railroad shops, and along the waterfront. Jake has had many tough fights, but his great strength and courage have pulled him through. This classic portrait of a proletarian activist is humanized by its subject's recurring moods of despair and a good deal of appallingly painful "woman trouble." Al­ though Jake Home is not a great novel, it is a much better piece of fiction than is indicated by the tepid critical reception with which it was greeted. Novels by writers of the extreme left usually suffer a curious fate; they are overpraised by those whose political sympathies lie with the author, and are undervalued by the neu­ tral or liberal critics. This fact is not entirely irrelevant to the Sacco-Vanzetti literature; it too, as a class of writing, has usually met the same judgment by predisposition. About one-fourth of the McKenney novel covers Jake's activi­ ties in the Sacco-Vanzetti case. He is introduced to the problem at an arty radical salon in New York. In this place are gathered a poet, an ex-communist gone Trotskyite, a New Masses writer, an intense but mournful little Jewess named Sonya, and Fredericka Neilson* ("You know, her husband's A. Lincoln Neilson").28 #

Quotation from Ruth McKenney, Jake Home (New York: Harcourt, 1943), is by

special permission of the publisher.

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Some of Vanzetti's letters are read to the group; Mrs. Freckleson, down from Boston, raises a politically orthodox objection to ir­ relevant literary praise. Sonya does not believe in working-class symbols, and she thinks Sacco and Vanzetti are particularly in­ appropriate: [Vanzetti] is very intelligent. Very simple. Pa always said he'd die. Pa said he was like Christ, waiting for the Cross. Nick Sacco is in this by a complete mistake. He was a good little bourgeois, with a house and flowers and a wife and a bambino. . . . Poor Nick.29 The diversity of attitude on the part of those discussing the case, or the fact that Mrs. Freckleson later serves Jake lobster in three different ways, leaves him rather confused; as he puts it, "This damned case, it undermines judgement." 30 However, with a specific charge from his political superiors he goes off to Boston to work on the case. Jake finds the Defense Committee to be a worse hodge-podge than the New York group. It is assisted by a "faded blonde" and has among its members a rich old woman, a young society leader (also wealthy), and Mr. O'Malley: . . . the world-famous law professor. An Irishman by name. But his face looked entirely New England. Rimless eyeglasses covering pale gray eyes. A lock of pale brown hair spreading across a high forehead. A face composed of neat, small bones formed into smoothed-down angles. Pale, small, even teeth. Neat, carefully pressed clothes, a dark necktie.31 Other peripheral figures attend the meetings of the Committee. There is Ricco, the anarchist, present "by invitation—and heavy pressure." 32 Pete Linker speaks for the I.W.W. Krelinski repre­ sents the left-wing socialists, and McFinney those of the right: "McFinney . . . had something of a corner on frightened Bostonians who combined a polite interest in civic reform with after­ noon chamber music recitals." 33 Jake, himself, represents the Communist party; when he goes out on the road, he is to speak for the Sacco-Vanzetti Unity Committee. The group debates a leaflet which is to be used at public meet­ ings. Jake outlined the leaflet as he saw it. It would center around the idea of justice. Justice for the rich. Justice for the poor. Justice for the man who dared to protest. Justice for organized labor.34

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THE LEGACY OF SACCO AND VANZETTI

Much of what he offers is acceptable but O'Malley objects to the introduction of extraneous matters "such as the issue of the rights of labor to organize." The great lawyer believes that the courts will eventually set the men free, and that irritating propaganda can only do harm. Eventually, agreement of a poor sort is reached. The organizer's tour across the country is skillfully handled; the variety of his experience must have been much like that of those who actually did set out to raise funds for the defense: in Erie, I97.89; in Youngstown, $731.00—half of which came from a picnic party; in Kansas City every radical was underground in mortal terror of a brutal police system; in El Paso, the K.K.K. He returns to Boston in February; from then on the novel follows the history of the case to the executions without any special emphasis. Before attempting to discuss the Sacco-Vanzetti material in Jake Home, it will be helpful to have before us several comments by Miss McKenney which are contained in a personal letter. She says: My point of view in the book was this: Sacco and Vanzetti were the victims of the post-war (World War I) drive against labor. They died because the American working class was too weak and too disorganized to save them from their enemies. The middle class orientation of the defense movement delivered them to their doom. Naturally, the characters in Jake Home remind the reader of certain real-life people. The characters in this book were indeed based on fact. However, each [of] my characters is a synthesis: for example, X is a character I invented who plays a role which I believe is an accu­ rate depiction of the part B , but also many others, played in the Sacco-Vanzetti tragedy. I may add that I used synthesis rather than reproduction because I found this approach a more useful method in fiction. The novelist cannot be paralysed by the trivial details of actual circumstance, which often obscures the larger truth. As to the character of O'Malley in my book—his opinions grow out of a lifetime of social environment. But this cannot excuse him. His class murdered Sacco and Vanzetti. Part of this class functioned, to be sure, on one level, one front: this section included judges, prosecutors, Governor Fuller himself, and so on. O'Malley, and the other socialdemocratic legalists, occupied a different sector on the firing line. But O'Malley and his colleagues betrayed Sacco and Vanzetti to their death in a manner just as final, if more subtle, than Governor Fuller, prose-

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cutors and judges did. . . . To understand our enemies is not to for­ give them. I can comprehend why the O'Malleys act as they do; I can even perceive the origin of Governor Fuller's attitude. It is possible to explain Governor Fuller and O'Malley; their actions, however, remain morally vicious. Indeed, it is the comprehension of the behavior of the capitalists that makes me the implacable enemy of their class.85 Jake Home can be considered as a piece of creative literature, as an exposition of the social history of the case, or as special pleading for the communist point of view. The first of these aspects can be disposed of briefly—the novel is good fiction and will engage the interest of the reader from start to finish. The scene in the decadent and pseudo-radical New York salon is a brilliant piece of satire and is in entire agreement with the facts about such places as they have been recorded in many other sources. The same is true of Jake's miscellaneous experiences as he crossed the country; the warm-hearted generosity of thousands of simple people is reflected both in the novel and in the Financial Report of the Defense Committee; there is much in common, although one record is in fiction and the other in figures. The hostile reception he got in El Paso is well matched by the his­ torical event at Cheswick, Pennsylvania. In all of this the author is close to the real happenings. The treatment of the Sacco-Vanzetti Defense Committee, on the other ha*nd, is badly distorted. There was dissent, and mutual suspicion, particularly among the noisier publicists, the anarch­ ists, and the lawyers. There were "dear old ladies," and lunatics, and poets. McKenney is right in exposing these weaknesses, as De Voto did before her. But there was also a hard core of intelli­ gent direction which guided the Committee through seven years of arduous work. De Voto shows . Three months? A. Yes. Q. You came back all right physically, didn't you? A. I should say yes. Q. And you had Italian food there, didn't you? A. Yes, made by ourselves. Q. You could have had it all the time if you sent for it, couldn't you? A. Not all the time. I don't know. Q. Did you tail to have it at any time in the three months you were there? A. Yes, sir. Different. Q. What is the difference about it? A. Oh, different food that we did not like. Q. It was Italian food, wasn't it? A. No, sir. Q. Didn't you say it was? A. Sometimes after. Q. You could have had it all the time if you sent for it, couldn't you? A. Could have had beans sometimes and any other vegetable. Mr. Katzmann. I ask that be stricken out and the witness required to answer the question. Q. Could you have had it by sending for it? A. Could not get it all the time. Q. Why couldn't you get it in Mexico the same as you get it here? A. I suppose Mexico is not very much industries as in this country. Q. Couldn't you send to Boston to get Italian food sent to Monterey, Mexico? A. It I was a D. Rockefeller I will. (¾. Then, I take it, you came back to the United States first to get something to eat. Is that right? Something that you liked? A. No, not just for eat. Q. Didn't you say that was the first reason? A. The first reason­ ed. Didn't you say that was the first reason? A . Yes. Q. All right. That wasn't a reason of the heart, was it? A. The heart? ¢. Yes. A. No. Q. That was a reason of the stomach, wasn't it? A. Not just for the stomach, but any other reason. £>. I am talking first about the first reason. So, the first reason your love of Amer­ ica is founded upon is pleasing your stomach. Is that right? A. I will not say yes. Q. Haven't you said so? A. Not for the stomach. I don't think it is a satisfaction just for the stomach. £>. What is your second reason? A. The second reason is strange for me, the lan­ guage. Q. Strange language? A. Yes. Q. Were you in an Italian colony there? A. If I got them? I can't get that, Mr. Katzmann. Q. Pardon me. Were you in a group of Italians there? A. Yes. Q. When you came to America in igo8, did you understand English? A. No. Q. A strange language here, wasn't it? A. Yes. Q,. What is the third reason, if there is one? A. A third reason, I was far away from my wife and boy.

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Q. Couldn't you have sent for your wife and your boy? A. I wouldn't send for my wife and boy over there, because it was the idea to come back here. Q. I know that. You are back here. My question is, couldn't you have sent for Mrs. Sacco and your boy? A. Extreme condition, it would be bad. X could not go back in this United States, why I would get my wife and my boy. Q. Your answer means, does it not, you could have had Mrs. Sacco and the boy come down there to live with you? A. Yes. Q. You preferred to come back to this country? A. Yes. Q. But you preferred to remain under the name of Mosmacotelli until the armi­ stice was signed, didn't you? A. Yes. Q. Now, is there any other besides those three reasons why you loved the United States of America? A- Well, I couldn't say. Over here there is more accommodation for the working class, I suppose, than any other people, a chance to be more indus­ trious, and more industry. Can have a chance to get anything he wants. £>. You mean to earn more money, don't you? A. No, no, money, never loved money. £λ Never loved money? A. No, money never satisfaction to me. (2- Money never a satisfaction to you? A. No. {}. What was the industrial condition that pleased you so much here if it wasn't a chance to earn bigger money? A. A man, Mr. Katzmann, has no satisfaction all through the money, for the belly. Q. For the what? A. For the stomach, I mean. Q. We got away from the stomach. Now, I am talking about money. A. There is lots of things. Q. Well, let us have them all. I want to know why you loved America so that after you got to the haven of Mexico when the United States was at war you came back here? A. Yes. Q. I want all the reasons why you came back? A. I think I did tell you already. Q. Are those all? A. Yes. Industry makes lots of things different. Q. Then there is food, that is one? A. Yes. Q. Foreign language is two? A, Yes. Q. Your wife and child is three? A. Yes. Q. And better industrial conditions? A. Yes. Q, Is that all? A. That is all. Q. Among those four reasons, Mr. Katzmann, [sic] then, do you find any one that is called love of country? Have you named that reason? Mr. Moore. I object to that question. The others are reasons, I take it. The Court. Read it, please. [The question is read.] The Court. That last remark does not belong in your question. Mr. Katzmann. "Have you named them?" No, I suppose not. The Court. Leave that off, and you may ask it. Mr. Katzmann. All right. Q. Did you find love of country among those four reasons? A. Yes, sir Q. Which one is love of country? A. All together. Q. Ail together? A. Yes. sir. Q. Food, wife, language, industry? A. Yes. Q. That is love of country, is it? A. Yes. Q. Is standing by a country when she needs a soldier evidence of love of country? Mr. Jeremiah McAnarney. That I object to, if your Honor please. And I might state now I want my objection to go to this whole line of interrogation? The Court. I think you opened it up. Mr. Jeremiah McAnarney. No, if your Honor please, I have not.

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The Court. It seems to me you have. Are you going to claim much of all the collection o£ the literature and the books was really in the interest of the United States as well as these people and therefore it has opened up the credibility of the defendant when he claims that all that work was done really for the interest of the United States in getting this literature out of the way? Mr. Jeremiah McAnarney. That claim is not presented in anything tantamount to the language just used by the Court, and in view of the record as it stands at this time I object to this line of inquiry. The Court. Is that not your claim, that the defendant, as a reason that he has given for going to the Johnson house, that they wanted the automobile to prevent people from being deported and to get this literature all out of the way? Does he not claim that that was done in the interest of the United States, to prevent viola­ tion of the law by the distribution of this literature? I understood that was the— Mr. Jeremiah McAnarney. Are you asking that as a question to me? The Court. Yes. Mr. Jeremiah McAnarney. Absolutely we have taken no such position as that, and the evidence at this time does not warrant the assumption of that question. The CotKL.Then you are not going to make that claim? Mr. Jeremiah McAnarney. I am going to make whatever claim is legitimate. The Court. I want to know what that is. You are going to claim in argumentMr. Jeremiah McAnarney. I am going to claim this man and Vanzetti were of that class called Socialists. I am going to claim that riot was running a year ago last April, that men were being deported, that twelve to fifteen hundred were seized in Massachusetts. , . . The Court. Do you mean to say you are going to offer evidence on that? Mr. Jeremiah McAnarney- I am going to claim— The Court. I am asking the claim. You must know when I ask the claim I mean a claim that is founded on fact, evidence introduced in the case, and not upon any­ thing else. Mr. Jeremiah McAnarney. We have not concluded the evidence, if your Honor please. The Court. Do you say you are going to introduce evidence to that effect? Mr. Jeremiah McAnarney. We have witnesses which we may introduce here. I do not know whether we will introduce them or not. The Court. When you address me, I wish you would direct yourself to either evidence introduced or evidence you propose to introduce. Mr. Jeremiah McAnarney. Your Honor now sees— The Court. So I can pass judgment then upon that, and I cannot pass judgment as to the competency of something that may not be introduced and never come before me for consideration. Mr. Jeremiah McAnarney. Your Honor now sees the competency of my remarks, when I said to your Honor that I objected to the question in the present state of the evidence? The Court. Are you going to claim that what the defendant did was in the inter­ est of the United States? Mr. Jeremiah McAnamey. Your Honor please, I now object to your Honor's statement as prejudicial to the rights of the defendants and ask that this statement be withdrawn from the jury. The Court. There is no prejudicial remark made that I know of, and none were intended. I simply asked you, sir, whether you propose to offer evidence as to what you said to me. Mr. Jeremiah McAnarney. If your Honor please, the remarks made with refer­ ence to the country and whether the acts that he was doing were for the benefit of

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the country. X can see no other inference to be drawn from those except prejudicial to the defendants. The Court. Do you intend to make that claim? Mr. Jeremiah McAnarney. What claim, please? The Court. The one that I am suggesting. Mr. Jeremiah McAnarney. When this evidence is closed, if your Honor please, I shall argue what is legitimate in the case. The Court. All I ask is this one question, and it will simplify matters very much. Is it your claim that in the collection of the literature and the books and papers that that was done in the interest of the United States? Mr. Jeremiah McAnarney. No, I make no such broad claim as that. The Court. Then I will hear you, Mr. Katzmann, on the competency of this testi­ mony. Mr. Katzmann. I am sorry I did not hear what Mr. McAnarney said. The Court. Mr. McAnarney says it is not his claim, as I got it, he does not pro­ pose to make the claim that the collection and distribution of this literature was any matter to be done by either or both of the defendants in the interest of the United States. Mr. Katzmann. Then, if your Honor please, I offer the line of cross-examination I have started upon as tending to attack the credibility of this man as a witness. The Court. As to what part of his testimony? Mr. Katzmann. As to any part of his testimony to affect his credibility as a wit­ ness in toto. The Court. You can't attack a witness's credibility in toto excepting concerning some subject matter about which he has testified. Mr. Katzmann. Well, he stated in his direct examination yesterday that he loved a free country, and I offer it to attack that statement made in his examination by his own counsel. The Court. That is what I supposed, and that is what I supposed that remark meant when it was introduced in this cross-examination, but counsel now say they don't make that claim. Mr. Katzmann. They say they don't make the claim that gathering up the litera­ ture on May 5th at West Bridgewater was for the purpose of helping the country, but that is a different matter, not related to May 5th. The Court. I will let you inquire further first as to what he meant by the ex­ pression. Mr. Moore. If your Honor please, with all due respect to the Court, I desire to reserve an exception to the question that was asked,—interrogation that was asked as to the purpose of the testimony that was introduced on behalf of the defendant with reference to the issue of love of country; reserve an exception with all due respect to the Court. The Court. Of course, gentlemen, you understand, and you should understand by this time, that the Court is simply to pass upon the competency of testimony that is offered. The Court has no opinion of any facts. You heard me say so. The Court has no opinion in reference to this matter. I made simply the inquiry with a view of ascertaining what the claim of counsel might be, what might be argued, and inasmuch as counsel said they made no such claim, then I have reserved the right to pass upon the competency after inquiry has been made with reference to said testimony of the witness. I think you should know, and I repeat it, anyhow, there is no disposition, nothing has been said to do the slightest thing in any man­ ner whatsoever to prejudice the rights o£ either of these defendants, and anything that has been said you will not consider it if anybody can draw such an inference. You will give it not the slightest consideration in the world. It deserves none, and you will give it none. The only question I was passing upon was the competency

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of testimony and nothing else. Questions are not evidence. Statements of counsel are not evidence. Statements by the Court are not evidence. You will be governed by absolutely nothing but testimony that is admitted and heard by you from the witnesses upon the stand. You may proceed. Q. What did you mean when you said yesterday you loved a free country? A. First thing I came in this country— Q. No, pardon me. What did you mean when you said yesterday you loved a free country? A. Give me a chance to explain. Q. I am asking you to explain now. A. When I was in Italy, a boy, I was a Repub­ lican, so I always thinking Republican has more chance to manage education, de­ velop, to build some day his family, to raise the child and education, if you could. But that was my opinion; so when I came to this country I saw there was not what I was thinking before, but there was all the difference, because I been working in Italy not so hard as I been work in this country. I could live free there just as well. Work in the same condition, but not so hard, about seven or eight hours a day, better food. I mean genuine. Of course, over here is good food, because it is bigger country, to any those who got money to spend, not for the working and laboring class, and in Italy is more opportunity to laborer to eat vegetable, more fresh, and I came in this country. When I been started work here very hard and been work thirteen years, hard worker, I could not been afford much a family the way I did have the idea before. I could not put any money in the bank. I could no push my boy some to go to school and other things. I teach over here men who is with me. The tree idea gives any man a chance to profess his own idea, not the supreme idea, not to give any person, not to be like Spain in position, yes, about twenty centuries ago, but to give a chance to print and education, literature, free speech, that I see it was all wrong. I could see the best men, intelligent, education, they been arrested and sent to prison and died in prison for years and years without getting them out, and Debs, one of the great men in his country, he is in prison, still away in prison, because he is a Socialist. He wanted the laboring class to have better conditions and better living, more education, give a push his son if he could have a chance some day, but they put him in prison. Why? Because the capitalist class, they know, they are against that, because the capitalist class, they don't want our child to go to high school or to college or Harvard College. There would not be no chance, there would not be no,—they don't want the working class educationed; they want the working class to be a low all the times, be underfoot, and not to be up with the head. So, sometimes, you see, the Rockefellers, Morgans, they give fifty,—mean they give five hundred thousand dollars to Harvard College, they give a million dollars for another school. Everybody say, "Well, D. Rockefeller is a great man, the best in the country." I want to ask him who is going to Harvard College? What benefit the working class they will get by those million dollars they give by Rockefeller, D. Rockefellers. They won't get, the poor class, they won't have no chance to go to Harvard College because men who is getting ¢21 a week or $30 a week, I don't care if he gets $80 a week, if he gets a family of five children he can't live and send his child and go to Harvard College if he wants to eat anything nature will give him. If he wants to eat like a cow, and that is the best thing, but I want men to live like men. I like men to get everything that nature will give best, because they belong,—we are not the friend of any other place, but we are belong to na­ tions. So that is why my idea has been changed. So that is why I love people who labor and work and see better conditions every day develop, makes no more war. We no want fight by the gun, and we don't want to destroy young men. The mother been suffering for building the young man. Some day need a little more bread, so when the time the mother get some bread or profit out of that boy, the Rocke­ fellers, Morgans, and some of the peoples, high class, they send to war. Why? What is war? The war is not shoots like Abraham Lincoln's and Abe Jefferson, to fight

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for the free country, for the better education, to give chance to any other peoples, not the white people but the black and the others, because they believe and know they are mens like the rest, but they are war for the great millionaire. No war for the civilization of men. They are war for business, million dollars come on the side. What right we have to kill each other? I been work for the Irish, I have been working with the German fellow, with the French, many other peoples. I love them people just as I could love my wife, and my people for that did receive me. Why should I go kill them men? What he done to me? He never done anything, so I don't believe in no war. I want to destroy those guns. All I can say, the Government put the literature, give us educations. I remember in Italy, a long time ago, about sixty years ago, I should say, yes, about sixty years ago, the Government they could not control very much these two,—devilment went on, and robbery, so one of the government in the cabinet he says, "If you want to destroy those devilments, if you want to take off all those criminals, you ought to give a chance to Socialist lit­ erature, education of people, emancipation. That is why I destroy governments, boys." That is why my idea I love Socialists. That is why I like people who want education and living, building, who is good, just as much as they could. That is all. Q. And that is why you love the United States of America? A. Yes. Q. She is back more than twenty centuries like Spain, is she? A. At the time of the war they do it. Q. Are we in time of war now? A. No. Q. Were we in time of war when you came back from Mexico? A. Yes. Q. What did you come back for, then? A. I told the reason why I came back. Q. All right. You don't get a good education in this country. A. I don't see why they have a chance. Q. Do you get a better chance for education in Italy, I take it, from what you said? A, I don't say Italy better education in this country. Q- You said you could work less hours over in Italy? A. Yes. Q. You could get fresher vegetables? A. Yes. Q. Better food, and it was a republic? A. For the working class. Q. Why didn't you go back there? A. Pretty hard for men to change when he establish in one place. Q- Why, you were to go back, weren't you? A. Yes. Q. Why didn't you intend to stay back there when you went back? A. Italy? Q. Yes, your native country? A. I could not stay or not, because— Q. Have you said whether you were going to stay or not? A. Yes, I was going to go. Q. Were you coming back? A. I do not know, Mr. Katzmann. £>. Did you tell me you were coming back? A. I couldn't say so. Q. Can't you remember what you said to me over in the Brockton police station? A. I could not remember all the words, but I do remember some conversation be­ tween me and Mr. Kelley. Q. Never mind Kelley. I am talking about myself now. Didn't you tell me that you were coming back to this country in two or three months? A. Well, if I did— Q. Did you? A. I could not remember, Mr. Katzmann, if I did. Q. Wasn't that your intention to come back? A. I couldn't say yes because proba­ bly I could remain in Italy because my father is old. I could get his business over there. Q- Were you going to have your father support you? A. What? Support me, my father? Q. Yes. A. No. Q. Were you going to take your wife and child over? A. Yes.

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Q. You could not go back to Italy, you say, because it would be a hardship, but you could take your wife and child back for a vacation; is that right? A. No, not vacation. Q. Wasn't it a vacation? A. No, sir. Q. Were you going to work while you were over there? A. Certainly. I could not work without work. I love work, Q. You love work? A. Yes. Q. Do you love it as much as you love this country? A. Well, I think men is a great work,—greater profit for the country, too. Q. Do you love work as much as you love the United States? A. The reaction of the United States I did not like. Q. When you came over to this country, you had certain ideas, didn't you of what was here? A. No. Q. Didn't you say when you came over you were thinking about education, build­ ing tor your family, and raising a family? A. Yes, but I was a Republican in my country. Q. Didn't you say that you had those ideas of this country when you came here? A. Yes. Q. And didn't you say when you came you saw a difference? A. Yes. Q. And the things were better in Italy than they were here? A. No, not that. Q. In substance, haven't you said that in this long answer you gave? A. No. Buy fruit more fresh for the working class, but no education and other things. It is just the same. Q. Didn't you say you did not have to work so hard in Italy? A. Yes. Q. That you could live just as well in Italy? A. Yes. Q. And that there was better food? A. Yes. Q. And fresher vegetables in Italy? A. Yes. Q. Why didn't you go back? A. Well, I say already— Q. Say it again. Why didn't you go back when you were disappointed in those things? A. I say men established in this country, it is pretty hard to go back, change mind to go back. Q. Pretty hard to change your mind? A. Yes. £>. You say on April 15, 1980, you were in Boston getting a passport to go back with your wife and children? A. Yes. That is not the reason I go back to the old country, for the fruit, but to see my father. For twelve years I never saw him, my brother, my sister, or my folks. Q. It is just as easy, isn't it, to go back to see your father as to go back for fruit. You go back in either case? A. I do the greatest sacrifice in the life to go there. Q. To go back to a country where you get those things and could not get them here,—is that a sacrifice? A. No. The great sacrifice is to see my folks. Q. The great sacrifice. AU right. Do you believe in obedience to constituted gov­ ernmental authority? Mr. Jeremiah McAnarney. I object, if your Honor please. Mr. Katzmann. Pause a moment. There is an objection. The Court. I would like to see counsel at the bench. [Conference between Court and counsel at bench.] [Short recess.] Q. Do you remember speaking of educational advantages before the recess? A. Yes, sir. Q. Do you remember speaking of Harvard University? A. Yes, sir. Q. Do you remember saying that you could not get an education there unless you had money? I do not mean you used those exact words. I do not contend you did, but, in substance, didn't you say that? A. They have to use money in the rule of the Government.

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Q. No. You don't understand. Did you hear it, perhaps? A. I can't understand. Q. I will raise my voice a little bit. Did you say in substance you could not send your boy to Harvard? A. Yes. Q. Unless you had money. Did you say that? A. Of course. Q. Do you think that is true? A. I think it is. Q. Don't you know Harvard University educates more boys of poor people free than any other university in the United States of America? Mr. Jeremiah McAnarney. I object. The Court. You may answer. Mr. Jeremiah McAnarney. Save an exception. The Court. You may answer—if he knows. Q. Do you know that to be the fact? A. How many there are? Q. What? A. How many. Q. How many? Don't you know that each year there are scores of them that Harvard educates free? Mr. Jeremiah McAnarney. I object. The Court. Wait until he finishes the question. Mr. Jeremiah McAnarney. I thought he had. Mr. Katzmann. That was the end of it. The Court. He may answer yes or no, whether he knows or not. Mr. Jeremiah McAnarney. Save an exception. Q. The question is, do you know? A. I can't answer that question, no. Q. So without the light of knowledge on that subject, you are condemning even Harvard University, are you, as being a place for rich men? Mr. Jeremiah McAnarney. Wait one minute. The Court. Xt does not follow. Q. Did you intend to condemn Harvard College? The Court. He may answer. Mr. Jeremiah McAnarney. Save an exception. The Court. Certainly. A. No, sir. Q. Were you ready to say none but the rich could go there without knowing about offering scholarships? Mr. Jeremiah McAnarney. To that I object. The Court. He may answer. Mr. Jeremiah McAnarney. Save an exception. The Court. He made a statement in cross-examination with reference to state­ ments that the witness himself made. He may answer. A. Yes. Q. Does your boy go to the public schools? A. Yes. Q. Are there any schools in the town you came from in Italy that compare with the schooi your boy goes to? Mr. Jeremiah McAnarney. I object. The Court. Isn't this quite a good way now from that? Of course, I see, or think I see, what you have in mind eventually, but it seems to me the boy going to school is quite a considerable distance. £>. Does your boy go to the public school? A. Yes. Q. Without payment of money? A. Yes. Q. Have you free nursing where you come from in Stoughton? A. What do you mean? Q. A district nurse? A. For the boys? Q. For anybody in your family who is ill? A. I could not say. Yes, I never have them in my house.

Q. Do you know how many children the city of Boston is educating in the public schools?— Mr. Jeremiah McAnarney. I object. Q. [Continued.] —free? Mr. Jeremiah McAnarney. I object. The Court. Ask him if he knows. Mr. Katzmann. I did. The Court. Answer yes or no. Q. Do you know? A. I can't answer yes or no. Q. Do you know it is close to one hundred thousand children? Mr. Jeremiah McAnarney. I object. A. I know millions of people don't go there. Mr. Jeremiah McAnarney. Wait. "When there is objection, don't answer. I object to that question. The Court. He says he doesn't know. Mr. Jeremiah McAnarney. I object to that answer. 1 object to the question and the answer. The Court. T h e question may stand, and the answer also. Mr. Jeremiah McAnarney. Will your Honor save an exception. . . . 54. Transcript, I:go2. 55. Ibid., 11:2147. 56. Ibid., II:2166-8. 57. Ibid., 11:2224-8. 58. Ibid., 11:2254-5. 59. Ibid., V:5077-g. 60. In the record of the Bridgewater case this surname is spelled Breni. T h e Transcript misspells the given name in a variety o£ ways. 61. Transcript, 11:1555. 62. Ibid. 63. Ibid., 11:2192. 64. Ibid., 11:1629. 65. Ibid., V:5O8O-I. 66. Ibid.,

V:5O6O-I.

C H A P T E R IV 1. Transcript, IV:3594. 2. Ibid., IV:358o. 3. Ibid., 1:2. 4. Ibid., 11:1872-5. See also Ibid., II:i8i8, 1867 81. 5. Ibid., IV:4o71-3. 6. Ibid., IV:4339-4o. 7. Ibid., IV:352J. 8. Ibid., IV:4224. 9. Ibid., V:5378j-k. 10. Ibid., V-.4381. 11. Ibid., V:477o-1. 12. Ibid., V:5040-1. 13. Ibid., V:4751. 14. Ibid., V.'4818-2o, 4854. 15. Ibid., V:4893. 16. Ibid., V:4975-6. 17. Ibid., IV:g642-3.

18. Transcript, IV.'368i. 19. Ibid., IV:3682. 20. Ibid., IV:370g. 21. Ibid., IV:4357. 22. Ibid., V:5378r. 23. Ibid., 11:2219. 24. In an early part of his address Mr. Katzmann said: "We are not allowed to express our personal opinions to you. It is not evidence." Ibid., II:2i8i. 25. Ibid., V:5592. 26. Ibid., IV:3718. 27. Ibid., IV:3721. 28. Ibid. 29. Ibid., IV:3722. 30. T h e argument of Mr. Thompson before the Advisory Committee did not indicate an abiding confidence in Mr. Hamilton's expert testimony and measurements. Before t h a t time the comparison microscope had been made available; and the method by which Mr. Hamilton compared the engravings of the breechblock on the Winchester test shell with those on the Fraher shell had been questioned. From the testimony of the photographer and the statements of Mr. Ehrmann it appeared that there was a possible ground for challenging the authenticity of the bullet numbered III, and there was possible ground for argument that the Fraher Winchester shell was not the one picked up by Bostock. As to this see a book review of Herbert Ehrmann's The Untried Case, in Harvard Law Review, 47:539-40 (1934)See also J. D. and C. O. Gunther, The Identification of Firearms from Ammunition Fired Therein (New York: Wiley, 1935). 31. Transcript, V:4726. 32. Ibid., V:5378U. 33. Ibid., V:436334. Ibid., V:4362-335. Ibid., V:4853. 36. The Case of Sacco and Vanzetti (Boston: Little, Brown, 1927), p. 104. 37. Transcript, V:556338. Ibid., IV:S6OS-4. 39. Ibid., IV:352740. Ibid., IV:3723-441. Ibid., V:4748. 42. Ibid., V:4776-7. 43. It may be granted that at common law a party is not entitled to have a judge who is impartial and unprejudiced so long as he hides his bias and prejudice from the jury. But the Massachusetts Bill of Rights, Article 2g, declares: "It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit." 44. Transcript, 11:2176. 45. Ibid., IV:3959, 3950. 46. Ibid., V-.4924. 47. Ibid. 48. Ibid., V:4g2g. 49. Ibid., ^4932. 50. Ibid., V:4947. 51. Ibid., V:54i2. 52. Ibid., V:5o65. 53. T h e transcript of the proceedings at the trial astonishes any reader who knows the reputation of the local counsel for the defendants. It is only when the revelations before the Advisory Committee make clear the antagonism between

536

CHAPTER REFERENCES

Moore and Mrs. Sacco, the efforts o£ local counsel to have Moore withdraw, their disagreement with him as to tactics, etc., that a plausible explanation arises. The strain of trying such a case before such a trial judge in such circumstances makes eifective advocacy practically impossible. See Transcript, 5052, and the fol­ lowing from Judge McAnarney's testimony before the Advisory Committee: "Q. [By President Lowell] Did the judge treat you fair? A. Yes, that was one of the things that made it embarrassing. He would say to Moore, 'Why don't you do the same as Mr. McAnarney does?' and Moore was chief counsel. "Q. Well, didn't he slip out of the case after it was over? I supposed Moore had taken a back seat. A. We got out as fast as we could. "Q. [By Judge Grant] Was he rather a disagreeable person? A. I will tell you now. At the trial, the jury there, there would be friend Moore offering his best interests at the trial, on hand with his coat and vest off and his shoes off. "Q. [By Mr. Thompson] What, his shoes? A. In front of the courthouse, Moore, and I would say to Moore, 'For God's sake, keep that coat on in the courtroom, can't you?'" Ibid., V:5o6i-a. 54. A most enlightening but most discouraging comparison may be made between Commonwealth v. Madeiros, 255 Mass. 304, and Commonwealth v. Saeco. In the Medeiros case the conviction was reversed on the sole ground that the trial judge had refused to charge that the defendant was presumed innocent. In the De Fran­ cesco case, decided in 1924, the Suprenie Court had fully explained that the pre­ sumption of innocence meant merely that the finding of an indictment by the grand jury or an appeal on a complaint from a district court was not to be re­ garded as a circumstance tending to incriminate a defendant or create any unfavor­ able impression against him and that he was not to be found guilty upon suspicion or conjecture. It had said that a simple statement to this effect fully protected the rights of a defendant. The trial judge made a clear statement to the jury giving Medeiros the benefit of every suggestion made by the Supreme Court in the De Francesco case but he refused to use the phraseology of presumption of innocence. His refusal to use this magic phrase was held to be fatal error. 55. The record contains a verbatim account of the challenge to the veracity of the witnesses Guadagni and Bosco but omits the showing of their complete vindica­ tion. This has caused grave criticism of the Committee and particularly of President Lowell. See also Chapter V, below. 56. Transcript, ν·.ζίη$. 57- Ibid., V:5578/. 58. Ibid., V:53781. 59. Ibid., V:5378p-q. 60. Ibid., V:5378u. 61. Ibid., V:5378(. It is suggested that the Committee, as well as Judge Thayer, misconceived the real effect of this evidence. See above pp. 137-9, '41· 62. Transcript, V:5378o, 5378«. 63. Ibid., V:53782. CHAPTER V 1. "The Hidden Drama of Sacco and Vanzetti," True Detective Mysteries, 24 (September, 1935, p. 120). Letters from Captain Van Amburgh under dates of April 12 and 18, 1946, confirm this as an accurate report of his conversation with Judge Thayer. 2. Transcript, ^:3544. 3. The Advisory Committee was appointed on June 1, and submitted its report to Fuller on July 27. Goddard made his tests on the Sacco-Vanzetti bullets on June 3.

CHAPTER REFERENCES

537

4. See J. D. and C. O. Gunther, op. cit., pp. 228 and 244: "Hamilton's testimony forces the conclusion that he was trifling with the truth. . . . Hamilton was guilty of using all possible arguments in his client's behalf whether founded in fact or in fiction, and his testimony creates a suspicion of charlatanism." Fig. 136 on page 114 of the Gunthers' book is a composite photograph of the test shell and the Fraher shell. The conclusion (c) above is not in the text of the book but was expressed by the authors in a communication to the writer. That Hamilton did not have a high regard for the truth appears from an incident in his later professional career. Under date of March 11, 1934, the New York Herald Tribune in a report of the trial of People v. Strewl set forth what purported to be the answers of Hamilton on his cross-examination by the prosecutor. Hamilton had testified that certain writings of Strewl were not in the same hand that had written certain kidnapping messages. On cross-examination he said that he had not changed his mind since the date when he had given an opinion to the contrary to the prose­ cutor. When asked whether he wanted the jury to believe that he had deceived the prosecutor, he replied that he did not care what the jury thought. In reviewing this portion of the testimony, the Appellate Division said: "Three handwriting experts were sworn by the People. They expressed the opin­ ion that the letters were written by the defendant. The force of the evidence of the handwriting expert sworn on behalf of the defendant was entirely destroyed on cross-examination. He was confronted with a letter which he had written the dis­ trict attorney wherein he expressed the opinion that the defendant wrote the ran­ som notes. His testimony to the contrary has little value." People v. Strewl, 246 N.Y. App. Div. 400, 412 (1936). The reliance which the defendants, by choice or circumstance, were compelled to put on persons of questionable character was most unfortunate. Moore and Ham­ ilton; Medeiros, Silva, and Mede. The apparently reputable support of Mede by Santosuosso is weakened by the latter's subsequent involvement in an action for a fraud upon the City of Boston and his consequent disbarment. (See City of Boston v. Santosuosso if Another, 307 Mass. 302 (1940). The other was James M. Curley.) At p. 349 the Court said: ".The trial judge found 'consciousness of guilt on the part of both defendants in that each testified falsely . . . in material matters.' This finding imports that such testimony was wilfully untrue." 5. For evidence that Colonel Goddard's testimony may sometimes exhibit a degree of certainty not warranted by the facts, see the Nation, 125:625 (Dec. 7, 1927) article by Arthur Warner. CHAPTER VI j. As a result of the Sacco-Vanzetti case the Massachusetts Judicial Council in its third report (1927) recommended the passage of an act to give the Supreme Judicial Court additional power over capital cases. It renewed this recommendation in its thirteenth and fourteenth reports. In 1939 the legislature accepted the recom­ mendation and in Chapter 341 of the Laws of 1939 provided as to appeals in capital cases: "In a capital case the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence, and the court may order a new trial if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require. After the entry of the appeal in a capital case and until the filing of the rescript by the supreme judicial court motions for a new trial shall be presented to that court and shall be dealt with by the full court, which may itself hear and determine such motions or remit the same to the trial judge for hearing and determination. . . ."

538

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2. "The Sacco-Vanzetti Case" in Criminal Law and Its Administration, ed. by Michael and Wechsler (Chicago: Foundation Press, 1940), pp. 1085-91. 3. Cf. U . S. Attorney General Jackson in a letter to Senator Russell, Chairman of the Senate Committee on Immigration, with respect to a bill which passed the House on June 13, directing the Attorney General to deport Harry Bridges "not­ withstanding any other provision of law" as a person "whose presence in this coun­ try the Congress deems hurtful" (New York Times, June 20, 1940, p. 12, col. 3): ". . . It would be the first time that Congress, without changing the general law, simply suspended all laws which protect a named individual and directed the Attor­ ney General to disregard them and forthwith to deport 'notwithstanding any other provision of law." . . . "What becomes of equality before the law, of the impersonal and impartial char­ acter of our government, if it is to select unpopular persons to suffer disadvantage or punishment? . . . "As an American I would not, for the sake of my own liberty, deny the protection of uniform and indiscriminatory laws and of fair hearings to even the humblest or meanest of men. As an official of the United States I cannot in good conscience do other than recommend strongly against this bill." [Footnote of editors, Michael and Wechsler.] 4. If the accused should take the stand in his own behalf, prior convictions could be shown against him, as against any other witness, to make him seem unfit to be believed. But the accused would himself have to take the initiative. And the theory of the law is that the convictions are to be weighed only for the purpose of wiping out the accused's own testimony. [Footnote by Llewellyn.] 5. There is an exception, not here in question, when a series of crimes are charged to be part of a single, continued plan. [Footnote by Llewellyn.] 6. Black v. State, 65 S.W. 906, 907 (1901). 7. Commonwealth v. Nicely, 130 Pa. 261, 270 (1889). 8. 295 U.S. 78, at 88 (1935). 9. Chicago, Illinois Association of Criminal Justice, 1929, p. 163. 10. State v. Rhoads, 81 Oh. St. 397, 398, 424-5 (1910). 11. See Halsbury's Laws of England 9:116-7. 12. Ibid., 164. 13. Lectures on Legal Topics—Association of the Bar of the City of New York, 5:425· 14. Ibid., 427. 15. Ibid., 431. 16. 199 No. Car. 278, 290 (1930). 17. Harvard Law Review, 44:1123, note 29 (1931). 18. 199 No. Car. 278, 298 (1930). 19. Ibid., 299. 20. Ibid. 21. All defendants, after sentence, were admitted to bail and all "jumped bail." See Harvard Law Review, 44:1124, note 35 (1931). 22. 309 U.S. 227 (1940). 23. 148 Fla. 387 (1941). 24. Powell v. Alabama, 287 U.S. 45 (1932). 25. Norris v. Alabama, 294 U.S. 587 (1935); Patterson v. Alabama, 294 U.S. 600

('935)26. In legal parlance he entered a "nolle prosequi." Powell, however, was found guilty of assault upon a deputy sheriff while he was being transferred to or from his trial, and was sentenced to twenty years' imprisonment. He was paroled on June 5, 1946. This information and that concerning the others was most courteously

CHAPTER REFERENCES

539

furnished by the State Board of Pardons and Paroles of Alabama, through Mr. L. B. Stephens, Administrative Assistant, under date of July J1» '94^ αη. Norris, whose sentence was commuted, was paroled in January, 1944, but violated the conditions of his parole and was returned to prison. [He was paroled again in September, 1947 (New York World Telegram, Sept. 27, 1946).] Patterson has been continuously in prison but became eligible for parole in March, 1948. The other two are at liberty on parole. 28. White v. State, 135 Tex. Cr. 210, 211 (1938). The Texas statute provides that if the judge refuses to sign a bill of exceptions, the party tendering it may have it signed by bystanders. 29. Ibid., 215. 30. White v. State, 139 Tex. Cr. 660 (1939) 31. 310 U.S. 530 (1940). 32. See New York Times for June u, 1941, p. 23, col. 7. This information has been verified by the attorney who was the prosecuting attorney at the time and is now on the Court of Criminal Appeals. 33. For other cases where local prejudice played a decisive part, see A. G. Hays, Trial by Prejudice (New York: Covici, 1933). 34. In this connection must be noted the danger that disclosure of the prosecu­ tion's case will enable the professional criminal and gangster and his counsel to use more effectively the illegitimate devices for manufacturing testimony and intimi­ dating witnesses. The abuses of the adversary system are not confined to the prosecu­ tion. Even the new Federal Rules of Criminal Procedure provide for only very limited disclosure to defendant. See Rule 16. CHAPTER VII 1. Art Shields, Are They Doomed?, 18. 2. Art Shields, "The War on the Alien in New England," in One Big Union Monthly, 3:41-3 (January, 1921). 3. Elizabeth G. Evans, "Foreigners," in the New Republic, 27:44-6 (June 8, 1921). 4. In a letter by Joseph M. Caldwell to Eugene Lyons. See Lyons, Life and Death of Sacco and Vanzetti, 33. 5. Shields, "The War on the Alien . . .", in One Big Union Monthly, 3:42 (January, 1921). 6. Irwin Granich, "Anarchists in Plymouth," in Revolt, 1, no. 5, p. 7 (February 5, 1916)· 7. New York Times, July 8, 1921, p. 15; 4. 8. Evans, "Foreigners," in the New Republic, 27:44-6 (June 8, 1921). 9. Transcript, !!!:2295-2318. 10. Joseph Lilly, "Free Speech and Press . . ." in the Brooklyn Daily Eagle, May 14, 1927, p. 10. 11. Form letter of the Sacco-Vanzetti Defense Committee, January, 1921. 12. An article by Eugene Lyons in Free Voice, i, no. 3 (December 1, 1920); and Art Shields, Are They Doomedf, New York: Workers Defense Union, (January, 1921]. 13. George Seibel in the American Mercury, 12:162-70 (October, 1927). 14. "Lawless Enforcement of Law," in the Harvard Law Review, 53:957-8 (May, 1920). 15. From a letter quoted in Alfred Kazin's, On Native Grounds, 6. 16. Henry David, The History of the Haymarket Affair, 494. 17. From a letter quoted in Kazin, On Native Grounds, 6. 18. David, The History of the Haymarket Affair, Chapter 24. 19. Abrams et al. v. United States, 250 U.S. 616-24 (1919).

54°

CHAPTER REFERENCES

20. Μ. Τ. Rice and Ed Delaney, The Bloodstained Trail: a History of Militant Labor in the United States, 80. si. Louis F. Post, The Deportations Delirium of Nineteen-Twenty, Chapter 4. 22. Published by the National Popular Government League, in Washington. Fur­ ther references to this document are given under the title, Report . . . Chief Justice Hughes's words are from "Some Observations on Legal Education and Democratic Process," in Two Addresses Delivered before the Alumni of the Harvard Law School, at Cambridge, June 21, 1920 (Cambridge: Harvard Law School Association [1920], P- 24)· 23. Report . . . , [3]. 24. Ibid., 12, 13. 25. Ibid., 4, 16, 17, 22. 26. Quoted in Osmund K. Fraenkel, The Sacco-Vanzetti Case, 5. 27. Chicago: Kerr, 1923. 28. Post, The Deportations Delirium . . . , Chapter ig. 29. Ibid., 279. 30. "Seeing Red," in Forty Years on Main Street, 317-8. 31. Colyer v. Skeffington, 265 Fed. Rep., 17. 32. Washington: Government Printing Office, [about March 1, 1920]. 33. Report . . . , 7. 34. Quoted in Felix Frankfurter, The Case of Sacco and Vanzetti, 43. For an effective analysis of the "Shoot the Red" spirit, see Robert Herrick, "The Ten Com­ mandments, Again," in the New Republic, 23:90-1 (June 16, 1920). 35. Delineator, 98 (June, 1921, pp. 4, 5, 66), (July, ig2i, pp. 10, 11, 38-9); 99 (August, 1921, pp. 10, 11, 42). 36. Ibid., June, 1921, p. 4. 37. Ibid., June, 1921, p. 5. 38. Ibid., July, 1921, p. 38. 39. Ibid., June, 1921, p. 66. 40. Ibid., August, 1921, p. 10. 41. Ibid., June, 1921, p. 66. 42. Congressional Record, 66th Congress, 1st session; 382:9148-9. 43. Lyons, Life and Death of Sacco and Vanzetti, 64. CHAPTER VIII 1. See R. M. Mclver, Society, a Textbook of Sociology (New York: Farrar, 1937), for a valuable discussion of the nature of associations, institutions, and other "group­ ings" in the community. 2. Some assistance may be had from the accidental relationship established by chronological identity. Thus a collection of miscellaneous pamphlets relating to the years 1920-1921 has these qualities: 80 per cent of the items are naive and ram­ pant patriotism, and 20 per cent are fundamentally rational and objective. See Harvard College Library call numbers: U.S. 7020.1, 7020.4, 7021.1, 7061.1. 3. Much of the information in this section relating to the participation of groups and individuals, and all of the financial information, can be readily found in the Financial Report of the Sacco-Vanzetti Defense Committee, from the Date of Organi­ zation May ), 1920 to July 31, 192}. This document will be understood to be the reference source for Chapter VIII, section 2, unless another place is given. 4. Eugene Lyons, Assignment in Utopia, 14. In May of 1922 Moore was quar­ reling with the Defense Committee about money. He also seems to have married an assistant in the early stages of the case; they were separated by December of 1922. See letters of May 12, 13, 1921, and December 19, 1922, in the Harvard Law School Library collection.

CHAPTER REFERENCES

541

5. Financial Report . . . , 3. 6. Free Voice, I, no. 3 (December i, 1920). 7. Published by the Workers Defense Union. 8. Lyons, Assignment . . . , passim. See also letter of March 4, 1921, in the Har­ vard Law School Library collection. 9. Mimeographed "Statement by John S. Codman, Chairman of the New England Civil Liberties Committee, . . . March 11, 1921." 10. [Boston:] New England Civil Liberties Committee [1921]. 11. Boston: League for Democratic Control [1921]. 12. Official Bulletin, I, no. 3, p. 1 (August, 1926), published by the Sacco-Vanzetti Defense Committee. Future references to this publication are given as Bulletin. 13. 25:127-9. 14. 46:431-2. 15. 5, no. 2 (August 5, 1921); 5, no. 8 (September 2, 1921). 16. Labadie Collection. 17. 58:816-8 (November, 1924). 18. Financial Report . . . , 9. 19. Boston: Sacco-Vanzetti Defense Committee [1921], 1. 20. October 4, 1921, p. 15:5. 21. 71 (December 10, 1921, pp. 34-6, 38-40, 42). 22. October 21, 1921, p. 14:3. October 22, 1921, p. 1:5, and p. 6;i, 2. 23. Eugene Lyons, for the Committee, in Survey, 47:237-8 (November 12, 1921). 24. 29:84 (December s i , 1921). 25. Congressional Record, 67th Congress, 4th session; February 25, 1923, 422:300527. Hearings had been held on "Palmerism" and the Report upon the Illegal Prac­ tices . . . as early as 1920 and 1921. See: House Committee on Rules, Hearing of June i, 1920, 263 pp. (This document is missing from the Library of Congress and the New York Public Library); also, Charges of Illegal Practices of the Department of Justice; Hearings Before a Subcommittee of the Committee of the Judiciary, United States Senate, January 19 to March 31, 1921, 788 pp. 26. Elizabeth McCausland, The Blue Menace, 27. 27. Book 297; 311.6521; B79/- is an index relating to cases involving Italian na­ tionals in the United States. In this volume, File No. 3ii.65*iSai, pp. 1-74, covers the Sacco-Vanzetti case. The boxes containing the documents bear the file no. 311.6521. Individual items are most easily identified by type (telegram, letter, etc.), point of origin, and date. 28. See the letter of transmittal from H. A. MacDonald, secretary to the Governor of Massachusetts, addressed to H. P. Fletcher of the Department of State. A docu­ ment marked F.W.3ii.652iSai may be the Katzmann summary; it runs to 15 pp. but has no identifying marks or signatures; its language is repeated in part in the serial letter of January 27, 1922. 29. May, 1921. 30. Boston: New England Civil Liberties Committee, January, 1924. 31. Sacco-Vanzetti Bulletin, no. 1 (May, 1924). Not to be confused with the Official Bulletin of the Defense Committee. 32. Printed in many places. See John Dos Passos, Facing the Chair, [7]; the origi­ nal French is in the Nation, 113:586 (November 23, 1921). 33. World Opinion Says They Shall Not Die. 34. New York World, September 13, 1927. 35. Louis Stark, "A Case That Rocked the World," 335. 36. Roxbury, Mass.: Progress Printing Co., n.d. See Elizabeth G. Evans, Outstand­ ing Features . . . , 17. A general study was also made available in Italian; see bibli­ ography II, B, under Guadagni.

542

CHAPTER REFERENCES

37. See Bibliography for 20- and 24-page forms; see also Evans, Outstanding Fea­ tures . . . , 28. 38. Bulletin, I, no. 1, p. 1. 39. New York World, September 13, 1927. Also, Bulletin, passim. 40. 48:366 (November 17, 1926). 41. 27:299-30. 42. 46:584. 43· ''3-343-544· »29:334-5· 45. "A Case That Rocked the World," 336-8 46. Nation, 115:294 (September 27, 1922). 47. 40:155 (October 15, 1924). 48. New Republic, 28:29 (September 7, 1921). 49. Bulletin, I, no. 2, p. 4: I, no. 9, p. 2. 50. Ibid., I, no. 2, p. 4. 51. 1:32-6 (September, 1926). 52. Ill, no. 5, p. 5. 53. This item is difficult to date; it may be as late as June, 1927. 54. Eugene Lyons in the Nation, 123:404 (October 20, 1926). 55. Typescript letter, signed, in the correspondence file of the American Civil Liberties Union located in the New York Public Library; see American Civil Liber­ ties Union Cases, 1927: Federal Departments, 11:427. 56. Social Review, August, 1926, pp. 8-11. 57. Bulletin, I, no. 7, p. 3. 58. P. 81. 59· P- 57· 60. Pp. 54-5. 61. I, no. 3, p. 3. 62. I, no. 6, pp. 1-2. 63. Ibid., 2-3. 64. I, no. 2, p. 5. 65. I, no. 7, p. 3. 66. Ibid., 2. 67. Ibid. 68. I, no. 6, pp. 1-2. 69. I, no. 8, p. 4. 70. Yale Law Journal, 36:384-90 (January, 1927); the passage quoted is from pp. 386-7. 71. Seven Amazing Documents, Boston: Committee on Social Justice of the Com­ munity Church, [1927]. The pamphlet presents the affidavits relative to the Depart­ ment of Justice files. 72. Bulletin, I, no. 6, pp. 2-3. 73. 28:70-2 (October 30, 1926). 74. 137:849-51 (November 13, 1926). 75. Most available as an appendix to Felix Frankfurter, The Case of Sacco and Vanzetti. 76. Bulletin, I, no. 5, pp. 2-3; no. 6, p. 4; no. 8, p. 3. 77. Ibid., I, no. 2, p. 5. 78. I, no. 6, 2-3. 79.I, no. 7, p. 2. 80. I, no. 8, p. 3. 81. Blackbooks, 10:63. See Bibliography under title. 82. 10:15-6, 94- (December, 1926). 83. Ibid., 16.

CHAPTER REFERENCES

543

CHAPTER IX j. "Case of Sacco and Vanzetti," Atlantic Monthly, 139:409-32 (March, 1927); this issue was released February 25. Reprinted verbatim in Felix Frankfurter, Law and Politics; Occasional Papers (New York: Harcourt, 1939). See also the greatly con­ densed "L'affaire Sacco-Vanzetti," Les cahiers des droits de I'homme, 27:173-5 (April 25. '927)2. The Case of Sacco and Vanzetti; a Critical Analysis for Lawyers and Laymen. 3. Road to Freedom, III:10 (May, 1927). Edward H. James, An Interpretation of History .... 5-6. 4. R(af£aeleJ Schiavina, Sacco e Vanzetti; cause e fini di un delitto di Stato (Paris: Bucco, 1927). 5. Boston Herald, April 16, 1927, pp. 1, 36. 6. Boston Evening Transcript, May 14, 1927. 7. Handbill; author's possession. 8. Handbill: HWLD collection. 9. Ill, no. 4 (May, 1927). 10. Handbill; [New York: June 16, 1927?]. 11. New York World, July 8, 1927. See also, Road to Freedom, IV, no. 1, p. 5 (August, 1927), and in the New York Public Library, American Civil Liberties Union Cases, 1927, Massachusetts-New Jersey, Ι.Ί25-6. 12. American Civil Liberties Union Cases, 1927, New York-Washington, 1:83. 13. Newspaper clipping. Harvard Law School Library collection; no place or date. 14. Letter, no addressee, June 9, 1927; HWLD collection. 15. Letter, to Reginald Stamp, June 2, 1927; HWLD collection. 16. Bulletin, I, no. 12, p. 4. 17. Ibid., no. 13, p. 12. 18. Boston Herald, April 21, 1927, p. 4. 19. Ibid., April 28, 1927, p. 1. go. Boston Evening Transcript, May 5, 1927. 21. Blackbooks, 10:68 (item dated April 20, 1927), 22. Boston Herald, [May 2, 1927]. 23. Boston Herald, June 29, 1927. 24. American Civil Liberties Union Cases, /927, Massachusetts-New Jersey, 1:88. 25. Bulletin, no. 11, p. 4. 26. Boston Herald, April 20, 1927, pp. 1, 8. 27. Bulletin, I, no. 12, p. 4. 28. New York World, May 17, 1927. 29. New Republic, 50:349 bis (May 18, 1927). 30. Ethelbert V. Grabill, Sacco and Vanzetti in the Scales of Justice. 31. Boston Herald, April 29, p. 2. 32. Boston Post, June 1, 1927. 33. Boston Herald, May 14, 1927, p. 2. 34. April 25, 1927, pp. 1, 12; April 26, 1927, p. 15; May 10, 1927, Part II, p. 3; May 11, 1927, Part II, p. 3. 35. Morris L. Ernst, "Deception According to Law," Nation, 124:602-3 (June 1, 1927); Emory R. Buckner et al., "Shall Prosecutors Conceal Facts?" Nation, 124:62830 (June 8, 1927). 36. June 26, 1927. 37. Blackbooks, Γ.98. 38. Bulletin, I, no. 11, pp. 2-3. 39. The Awakening of America's Conscience. 40. Letter of June 6; in Boston Herald, June 7, 1927.

544

CHAPTER REFERENCES

41. The Awakening of America's Conscience; item of April 22, 1927. 42. Bulletin, no. is, p. 4. 43· June 2, 1927. 44. June 18, 1927. 45· 5o:*36"7 (April so, 1927). 46. 51:5 (May 25, 1927). 47. 79 (May 2i, 1927, p. 54). 48. 124:492 (May 4, 1927). 49· 7:l65-8 (June, 1927). 50. Michael A. Musmanno, Appeal to His Excellency, Alvan T. Fuller . . . 51. Boston Herald, June 23, 1927. 52. Ibid., July 6, 1927. 53. Bulletin, I, no. 13, p. 2. See also George Branting, Sacco-Vanzetti dramat; justitiemorden i Massachusetts (Stockholm: Brand, [1927]). 54. Boston Post, May 11, 1927, pp. 1, 10. 55. Blackbooks, 1:97. 56. Boston Evening Transcript, April 22, 1927. 57. [Boston Heraldi], May 10, 1927. 58. Bulletin, I, no. 12, p. 1. 59. Ibid., 4. 60. Boston Herald, April 27, 1927, p. 2. 61. Letter from D. F. Buckley, Boston Evening Transcript, April 27, 1927. 6a. New Republic, 50:285 (May 4, 1927). 63. Ibid. 64. Harley W. Zehner telegram, Boston Evening Transcript, May 31, 1927. 65. Frank A. Goodwin, "Sacco-Vanzetti and the Red Peril," in the Boston Trav­ eller, June 30, 1927, pp. 1, 13; also as a pamphlet, see New York Public Library, American Civil Liberties Union Cases, 1927, Massachusetts-New Jersey, 1:187. See also the private correspondence exchanged between Goodwin and George M. Mischke, June 21-August 29, 1927; ten letters in the Harvard Law School Library col­ lection. CHAPTER X 1. August 8, 1927. 2. Boston Globe, August 6, 1927· 3. Ibid. 4. August 6, 1927. 5. Unidentified clipping, August 6, 1927; Harvard Law School Library collection. 6. Boston Herald, [August 6? 1927]; Blackbooks, 5:61. 7. Blackbooks, 6:2. 8. Ibid., 6:13. 9. Boston Herald, August 9, 1927. 10. Unidentified clipping, August 9, 1927; Harvard Law School Library collection. 11. Boston Herald, August 10, 1927; Blackbooks, 6:45, 7:13. 12. Boston Globe, August 10, 1927. 13. L'Humaniti, August 2, 1927. 14. Ibid., August 4, 1927. 15. Ibid., August 6, 1927. 16. Boston Globe, August 8, 1927. Blackbooks, 6:11. 17. New York World, August 12, 1927. 18. Boston Traveller, August 11, 1927. 19. Blackbooks, 10:52-4, 58. 20. Ibid., 8:35.

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21. Boston Herald, August 23, 1927. New York Herald Tribune, August 22, 1927. 22. New Republic, 52:202-5 (October 12, 1927); American Civil Liberties Union, The Shame of Pennsylvania. 23. Blackbooks, 8:58. 24. Boston Evening Transcript, August 22, 1927. 25. 52:230-5 (October 19, 1927). The Wickersham Report of 1930 states that Bos­ ton had less third degree and general police roughness than most American cities; the value of the opinion is somewhat lessened by the fact that it seems to be based largely upon the self-serving statement of Superintendent Crowley; see National Commission on Law Observance and Enforcement, Report No. 11, pp. 104-10. 26. Elliot Paul, The Last Time I Saw Paris, 131-2, 134. New York Herald Tribune, August 21, 1927. 27. Blackbooks, 5:70, 7:35. 28. Letter of June 30, 1927. 29. Telegram of July 24, 1927. 30. Telegram of August 18, 1927, 12 noon, to Green. Cable (mimeographed copy) August 18, 1927, 6:00 P.M., from Green. 31. Letter of August 22, 1927, fyom Green. 32. Circular telegram of August go, 1927. 33. Boston Herald, August 20, 1927. 34. Boston Globe, August 23, 1927. 35. Time (August 29, 1927, p. 10). 36. New York World, August 11, 1927. 37. Unidentified newspaper clipping, August [4?], 1927; Harvard Law School Li­ brary collection. 38. Boston Herald, August 22, 1927. 39. Nation, 125:176 (August 24, 1927). 40. New York World, October 6, 1927. 41. Blackbooks, 5:57. 42. August 7, 1927, III, 7. 43. August 16, 1927, pp. 1, 4-5. 44. August 23, 1927. 45. Louis Stark, "A Case That Rocked the World," 354. 46. August 9, 1927. 47. Letter in the Boston Herald, August 16, 1927. 48. August 21, 1927. 49. Outlook, 60:244 (August 20, 1927). 50. August 4, 1927. 51. August 5, 1927. 52. August 13, 1927. 53. 51:318 (August 17, 1927), 52:5-6 (August 24, 1927). 54. Bulletin I, no. 14, pp. 1-2. 55. Lyons, Life and Death of Sacco and Vanzetti, 163. 56. The quotations which follow, from Broun and Pulitzer, are from the Col­ lected Edition of Heywood Broun . . . 199-210. 57. Quoted in the Boston Herald, August 12, 1927. 58. Associated Press dispatch, August 12, 1927; Harvard Law School Library col­ lection. Also, Blackbooks, 7:37. 59. 14:5 (August 12, 1927); see also pp. 1, 3. 60. 41:628-9 (August 13, 1927)., 61. Issue of July 21, 1927, quoted in the New Republic, 51:324 (August \η, 1927). 62. Quoted in the Boston Herald, August 12, 1927. 63. Ibid. 64. Quoted in the Nation, 125:174 (August 24, 1927).

546

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65. Boston Herald, August 11, :927. 66. BIackbooks, 5:54, 67. Ibid., 6:50. 68. Associated Press dispatch, August 9, 1927; Harvard Law School Library col­ lection. 69. Louis Stark, "A Case That Rocked the World," 365. 70. Boston Evening Transcript, August 17, 1927. 71. Confidential information from a trustworthy source. 72. American Civil Liberties Union Cases, 1927, Massachusetts-New Jersey, 1:273'·

73. Associated Press dispatch, August 9, 1927; Harvard Law School Library col­ lection. 74. Letter to Fuller in The New Bedford Standard, August 26, 1927. 75. New York Herald Tribune, August 14, 1927, III, 7. 76. Boston Herald, August 22, 1927. 77. Paul Kellogg, "One Show of Hands," in Survey, 58:553-5, 571 (August 15, •927). For the names of the first 500 to sign, see Jeannette Marks, Thirteen Days, Appendix C. 78. BIackbooks, 5:51; Boston Herald, August 6, 1927. 79. Boston Herald, August 14, 1927. 80. Ibid., August 16, 1927. 81. BIackbooks, 7:71, 8:25. 82. New York Times, August 21, 1927. 83. Louis Stark, "The Grounds for Doubt," Survey, 59:38-41, 55-7 (October 1, '9*7)· 84. Associated Press dispatch, August [9?], 1927; Harvard Law School Library col­ lection. 85. New York World, August 21, 1927. 86. 29:560-1 (August 13, 1927). CHAPTER XI 1. Bulletin, I, no. 15, p. 3. 2. Mischke correspondence, letters of May 9, 19, 23; Harvard Law School Library collection. 3. New York World, July 8, 1927. 4. Bartolomeo Vanzetti, President Lowell . . ., 15-7. 5. Bulletin, I, no. 15, p. 3; no. 16, p. 3. 6. Ibid., I, no. 15, p. 3. 7. Louis Stark, "A Case That Rocked the World," passim. 8. Boston Herald, June 2, 3, 1927. 9. Ibid., June 4, 1927. 10. Letter in the Boston Evening Tranicript, April 28, 1927. 11. Letter [in the Boston HeraldT\, June 3, 1927. 12. Fourscore; an Autobiography (Boston: Houghton, 1934). 13. Ibid., 297-9. Also Robert Grant, The Convictions of a Grandfather (New York: Scribner's, 1912), 267-8. 14. Bulletin, I, no. 16, p. 3. 15. Fourscore, 367. 16. Ibid., 368. 17. Ibid., 366-74. 18- Earlier instances of Lowell's anti-Semitism have to do with his feeling toward Harold J. Laski, his reputed charge that Jews were primarily responsible for the theft of books from the college library, and his opposition to the appointment of

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Jews to the English staff. There is no attempt to be mysterious on these points; it is simply that documentary evidence cannot as yet be offered; the reader is free to disregard the entire allegation. For evidence and argument to the contrary see Henry A. Yeomans, Abbott Lawrence Lowell, 1856-194} (Cambridge: Harvard, 1948), 209-16. 19. Transcript of the Record, [blue page preceding] V:4949. 20. Fourscore, 371. si. Ibid. If the Lowell draft was presented on July 85, Grant is in error in saying that the Committee gave a week to its study and revision. 22. Ibid. 23. Ibid., 371-2. 24. Ibid., 372-3. 25. Transcript of the Record, V:5o85-5io6, 5109, 5256a-5256g. 26. The Lowells and Their Seven Worlds, 400ft. Greenslet's personal opinion on the case is given in Under the Bridge, 29-30, 179-80. 27. The chief editorials of the Republican on the decision of the Governor and the Report of the Committee are reprinted in the Bulletin, I, no. 14, pp. 1-2. 28. Transcript, V:5256b. 29. Fourscore, 373-4. 30. Henry F. Pringle, The Life and Times of William Howard Taft, 2:1047. 31. Ibid., 2:1048. Other letters written by Taft, thirty-three years before, at the time of the Pullman strike, "reveal a shocking hostility toward the strikers"; Ibid., !:128. CHAPTER XII 1. From a personal letter by Henry W. L. Dana to the writer. 2. August 23, 1927. 3. For pictures see the newspapers of August 28-30, 1927; also Bulletin, I, no. 18 [August, 1928]. Blackbooks, 9:47-9. Boston Post, August 29, 1927. 4. Ibid. 5. Lantern, I, no. 3, p. 7. 6. Lantern, II, no. 1, p. 34. 7. Ibid.; also see Defendant's Brief Before the Supreme Judicial Court, Novem­ ber Sitting, 1929 [Commonwealth v. Canter]; New York Public Library collection. 8. Industrial Solidarity, September 3, 1927, p. 1; September 4, 1927, pp. 1-3. 9. Lantern, I, no. 3, p. 9. 10. Ibid., no. 12, p. 1. 11. Lyons, Life and Death . . ., 8. Boston Herald, August 23, 26, 1927. 12. Lest We Forget! (London: National Committee, International Class War Prisoners Aid [September, 1927]. 13. There Is Justice, [2]. 14. Creighton Hill, "Alvan T. Fuller—Failure," Lantern, I, no. 7-8, pp. 3-6. 15. New York Times, March 21, 22, 1929. 16. Ibid., March 2, 1928. 17. Transcript of the Record, 18. Ibid., V :5051. 19. New York Times, February 26, 1928, June 10, 1928, July 7, 1929. 20. Pittsburgh Press, August 23, 1927. 21. Fernand Collin, L'affaire Sacco et Vanzetti, extrait de la revue de droit ρέηαΐ et de aiminologie, 29. 22. New York Times, December 9, 1928. 23. New York Times, January 5, 1928. See also this work, Chapter VI, p. 177.

548

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24. Lantern, I, no. 3, p. 9. 25. Arthur Warner, "A Sacco Revolver Expert Revealed," Nation, 125:625-6 (December 7, 1927). 26. Edward H. James, The Story of Mario Buda . . . 27. Information about the publication of the Transcript of the Record has been furnished by Henry Holt and Co., and in letters from Mr. Burlingham and the firm of Ivy Lee and T. J. Ross (public relations counsel to Mr. Rockefeller). 28. A. Lawrence Lowell, [Letter to] Mr. Cohen, Harvard Progressive, I, no. 2, p. 1 (April 10, 1929); from the HWLD collection. 29. Letter by W. G. Thompson, Boston Evening Transcript, May 23. 1927. Joseph Lilly, "Free Speech and Press . . . ," Brooklyn Daily Eagle, May 14, 1927. 30. New Republic, 52:47 (August 31, 1927). 31. New York World, May 15, 1927; Blackbooks, 1:24. 32. Industrial Solidarity, September 14, 1927, p. 3. 33. New Republic, 52:83 (September 14, 1927). 34. Bulletin, I, no. 15, p. 6. 35. Emory R. Buckner, "Radicalism . . .," New Republic, 52:212 (October 12, >9*7)· 36. William R. Riddell, "The Sacco-Vanzetti Case from a Canadian Jurist's Stand­ point," American Bar Association Journal, 13:683-94 (December, 1927); reprinted in condensed form in Current History, 27:839-42 (March, 1928), 37. Outlook, 146:562 (August 31, 1927); Independent, 119:217-9 (September 3, 1927)· 38. Independent, 119:217 (September 3, 1927). 39. New York Herald Tribune, August 28, 1927. 40. Ibid. 41. 139:420 (September 17, 1927). 42. Bulletin, I, no. 16, p. 2. 43. P. 46. 44. See especially the closing section. 45. Bulletin of the Relief Fund of the International Working Men's Association for Anarchists and Anarcho-syndicalists Imprisoned or Exiled in Russia, March, 1928, p. 2. 46. Lantern, I, no. 9, pp. 11-3. 47. 76:227-34 (September, 1927). 48. August 27, 1927. 49. Outlook, 147:17-8 (September 7, 1927). 50. New Republic, 52:150 (September 28, 1927). 51. August 27, 1927. 52. Christian Century, 44:1037-8 (September 8, 1927)· 53. The World Tomorrow, 10:413-6 (October, 1927). 54. Ibid., 10:355 (September, 1927). 55· P- 7· 56. P. 9. 57. P. 166. 58. New York: International Labor Defense, 1927. 59· Pp- 39. 40. 5960. P. 75. 61. Lyons, Life and Death . . . , 52-3. 62. 10:355 (September, 1927). 63. Lantern, II, no. 3, pp. 6-7. 64. The speech was reported with varying fullness in the papers of the day. The excerpts here given are from a typescript copy which has the notation: "The ad­ dress was made extempore. The stenographic record has been somewhat revised for

CHAPTER REFERENCES

549

publication." This copy was given by Mr. Kallen to this writer. For a further devel­ opment of Kallen's views, see "Fear, Freedom, and Massachusetts," American Mer­ cury, 18:281-92 (November, 1929). 65. October 22, 1927, p. 5. 66. Lyons, Life and Death . . ., 134. 67. Lantern, II, no. 3, pp. 8-9. 68. The writer's citation on this quotation reads New York World, December 10 or 16, 1927; a further check has not located the item; however, the quotation is known to have been copied in the newspaper annex of the New York Public Library. 69. 52:58 (September 7, 1927). 70. No place or publisher is indicated; copyright August 20, 1928, by Robert Lincoln O'Brien. Mr. O'Brien has courteously given permission for quotation from his pamphlet, and discussion of the views expressed therein. All the passages quoted in this section are from this source. 71· 883--471"¾ (September 15, 1927). 72. Bulletin, I, no. 16, p. 5. 73. Tragedia e supplizio di Sacco e Vanzetti (Naples: Rocco, 1928?), 7, 83-4, 87-8. 74. Shaemas O'Sheel, "The Thing; Reactions of a Realist," New Republic, 52:61-3 (September 7, 1927). 75. Alexander Meiklejohn: "In Memoriam: an Address . . .," New Republic, 56:69-71 (September 5; ig28). 76. Nation, 127:171 (August 22, 1928). 77. Some Aspects of the French Law (New York: Scribner's, 1929), 58-9. 78. Lantern, II, no. 3, p. 11. Ibid., I, no. 11, pp. 5-6, for a similar statement by John Cowper Powys. 79. "Wider Aspects of the Sacco-Vanzetti Case," Industrial Solidarity, Septem­ ber 14, 1927, p. 4. 80. Lantern, II, no. 3, p. 5. 81. Ibid., p. 3. 82. Ibid., pp. 7-8. 83. Ibid., p. 4. 84. Ibid., II, no. 2, pp. 21-2. 85. Bulletin, I, no. 8, p. 4, quoting the Washington Herald. 86. New Statesman, 29:609 (August 27, 1927). 87. Harvey O'Higgins, "The Nervous American," American Mercury, 16:257-63 (March, 1929)88. 60:5-6 (August 21, 1929). 89. Lantern, II, no. 3, pp. 4-5. 90. August 29, 1927, p. 10. 91. The Way the World Is Going, p. v. 92. October 16, 1927, Part IV, pp. 3, 23. 93. Ibid., p. 23. 94. Ernest H. Abbott, "What Is the Best Defense of the Truth?"; Outlook and Independent, 147:362-3 (November 23, 1927). 95. "Some Readers' Comments on 'Fear'"; Outlook and Independent, 147:384 (November 23, 1927). Joseph Jastrow, "Our Prejudices . . . ," Ibid., 147:364-5, 373 (November 23, 1927). 96· 53:9"la (November 23, 1927). Reprinted in Characters and Events. CHAPTER XIII 1. Information about this episode is derived from mimeographed press releases located in the Labadie Collection at the University of Michigan Library. They

55»

CHAPTER REFERENCES

were deposited, with a covering letter dated January 28, 1938, by J. N. Beffel, who had taken an active part. 2. September 21, 1936. 3. Unity, 99:217 (August 16, 1937). 4. Walled in This Tomb; Questions Left Unanswered, by the Lowell Committee in the Sacco-Vanzetti Case . . . [Boston: Excelsior Press, 1936]. 5. Walled in This Tomb . . ., 4. 6. Life, 3 (September 6, 1937, p. 24); New York Times, August 23, 1937. 7. Consult: (1) Henry Nash Smith and Horace Busby, The Controversy at the University of Texas, 1939-1946 (Austin, Texas: Student Committee for Academic Freedom, Students' Association, 1946); (2) American Association of University Pro­ fessors Bulletin, 30:627-34 (Winter, 1934), 31:462-5 (Autumn, 1945), 32:374-85 (Sum­ mer, 1946); (3) Clarence E. Ayres, "Are Professors Dangerous?" The Southwest Re­ view, 32:8-15 (Winter, 1947). 8. Boston Herald, August 24, 1947. 9. Boston Herald, Boston Globe, New York Times, August 24, 1947· 10. 10 (September 1, 1947, p. 5). 11. New York Times, August 25, 1947. 12. Page [2]. 13. Letter from Mr. Ehrmann to E. M. Morgan, December 9, 1946. 14. New York: Knopf, 1939. 15. Proceedings Before the Council and Members of the Bar Association of the City of Boston. . . . Memorial Read by Bentley W. Warren. . . . Remarks of George E. Mears . . . and Herbert B. Ehrmann. 16. Ibid., 5. 17. Ibid., 7. 18. Ibid., 13. 19. Ibid., 14-5. 20. Ibid., 16. 21. New Republic, 64:32-3 (August 27, 1930). 22. Living Age, 339:320 (November, 1930). 23. New Republic, 59:163 (July 3, 1929). 24. Bulletin, I, no. 19, p. 3. 25. New Republic, 64:49 (August 27, 1930). 26. I, no. 1, pp. 16, 20; HWLD collection. 27. Issued by the Socialist Party, 6th Congressional District, Kings County, New York. 28. Chicago: General Defense Committee, August, 1936. 29. New York: Workers Library Publishers, October, 1937. 30. 7 (March 8, 1930, pp. 7-11), (March 15, 1930, pp. 38-40, 45-8). 31. Bulletin, I, no. 19, p. 14. 32. Ibid., p. 11. 33. Issue no. 184 (July 10, 1932). 34. William Allen White, Forty Years on Main Street, 183-4. 35. Collected Works, 233. 36. Ibid., 322. 37. Ibid., 457-8. 38. Associated Press dispatch in an unidentified newspaper clipping; dated June 25, 1946. 39. New Republic, 84:79 (August 28, 1935). 40. 92:58 (August 25, 1937). 41. L'HumaniU, August 6, 1927. 42. Only Yesterday, 84-7. 43. Boston: Houghton, 1937.

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551

44. P. 76. 45· P- ϋ»9· 46. New York Times, August 20, si, 22, 29, 1937. 47. 16:279-80. Note also that the Encyclopaedia Britannica, 14 ed., !:877-8, in the article "Anarchism" has this to say: ". . . the public opinion of the world felt that the execution had taken place less upon the evidence than for the crime of holding extreme opinions." 48. A Boston attorney who attended the trial, but who appears to have been neutral in his attitude, reports that Fred H. Moore told him that a statement was made by one of the jurors to Moore, after the verdict, to the effect that the opinion formed in the jury room was based almost wholly on the expert testimony. This is hearsay, but it has some worth since there is apparently no point at which selfservice would color the narrative. 49. The Writings of Benjamin Franklin. Ed. Smyth. IV:404· CHAPTER XIV 1. Chapter IV, pp. 123-4. 2. August 27, 1927 (magazine section, pp. 1, 2). 3. Footnote references are not given in this chapter to the numerous poems, or to quotations from them. The necessary information will be found in the index to the verse, Section VII of the Bibliography. 4. Statement of Mrs. A. D. Ficke in a letter of January 22, 1948, to G. Louis Joughin. 5. Statements of Mr. Allinson in a letter of February, 1948, to G. Louis Joughin. CHAPTER XV 1. Quotations are from the only printing; Paris, Prima, [1929?]. 2. New York World, September 7, 1927. .3. Rain from Heaven. The Theatre Guild Anthology (New York: Random, 1934), 921-2. 4. Quotations are from the text in Best Plays of the Modern American Theatre, Second Series, New York: Crown, 1947. 5. Quotations are from the radio script Those Sensational Years! Sacco-Vanzetti Case (American Broadcasting Co., R. W. Winsor Agency, March 27, 1947). 6. Quotations are from the first edition. New York: Longmans, 1928. 7. Lantern, I, no. 10, pp. 3-6 (December, ig28). 8. Quotations are from the text in Anderson, Eleven Verse Plays (New York: Harcourt, [1940]). CHAPTER XVI 1. Asch, Pay Day, 32. 2. Ibid., 254-5. 3. Ibid., 258. 4. Mr. Blettsworthy on Rampole Island, 326-7.. 5. Ibid., 329. 6. Ibid., 330. 7. Bernard Clare, 65. 8. Ibid., 66. 9. Ibid., 83.

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10. Bernard Clare, 94. n. Heavenly Discourse, *51. 12. Ibid., 243. 13. Ibid., 241. 14. Ibid., 249. 15. Ibid., 242. 16. Ibid., 252. 17. We Accept with Pleasure, 59. 18. Ibid. 19. Ibid. 20. Ibid. s i . Ibid., 60. 22. Ibid., 69. 23· Ibid., 72. 24. Ibid., 73. 25. Ibid., 82. 26. Ibid., 87. 27. Ibid., 92. 28. Jake Home, 220. 29. Ibid., 235. 30. Ibid., 245. 31. Ibid., 246. 32. Ibid., 247. 33. Ibid. 34. Ibid., 250. 35. Letter from Miss McKenney, of January 19, 1948, to G. Louis Joughin. 36. Letter to Conrad Schmidt, October 27, 1890. 37. Letter from Samuel E. Morrison, April 12, 1927; Henry W. L. Dana collection. 38. Alfred Kazin, On Native Grounds, 351. 39. Dos Passos, The Big Money, 436-7. 40. Ibid·, 450. 41. Ibid., 452. 42. Ibid., 461-2. 43. Ibid., 462-3. 44. Sinclair, Boston, I:vi. 45. Ibid., I:v. 46. Ibid., 11:555. 47. Ibid., 1:181. 48. Ibid., L19. 49. Ibid., 1:230. 50. Ibid., 1:58. 51. Ibid., 1:64. 52. Ibid., 1:68. 53. Ibid., 11:376. 54. Ibid., 11:652. 55. Ibid., 11:692. 56. Ibid., 11:754. CHAPTER XVII 1. Evans, Outstanding Features . . . , 26. 2. Sacco-Vanzetti National League. News Bulletin, January, 1929. 3. Vanzetti, The Story of . . . , 13.

CHAPTER REFERENCES

553

Ibid., 14. There is some conflict as to the chronology at this point, but it seems clear that Vanzetti had worked in Plymouth for at least twenty months before the cord­ age strike of January, 1916. 6. See the eleven-page unpublished letter of August 2, 1927, from Vanzetti to Thompson; Harvard Law School Library collection. Vanzetti discusses his activity in the strike in great detail. 7. Information furnished by Mr. Gardner Jackson. 8. Vanzetti, The Story of . . . , 28. 9. The Letters of Sacco and Vanzetti, 16. 10. Ibid., 55. n. Ibid., 12-3. 12.· Ibid., 62-74. The passage just quoted is from an earlier letter, December 6, 1923; see Letters, 12. 13. Ibid., 35-6. 14. Ibid., 56. 15. Ibid., 19. 16. Ibid., 45, 56. 17. Letter of May 15, 1927, to Henderson; Harvard Law School Library collection. 18. Letter of July xo, 1927, to Thompson; Harvard Law School Library collection. 19. Letter of December 22, 1925, to Hippolyte Havel; typed copy in University of Michigan Library. 20. Schactman, Sacco and Vanzetti . . . , 50-1. 21. Letters, 379-80. 22. Ibid., 166. 23. Ibid., 240. 24. Ibid., 281. 25. Ibid., 80. 26. Evans, Outstanding . . . , 29. 27. Letters, 128. 28. Ibid., 241. 29. Ibid., 281. 30. See the very sane letter of March 21, 1925, written by Vanzetti at Bridgewater to Thompson; Harvard Law School Library collection. 31. Boston Herald, August 20, 1927. 32. Undated letter; Harvard Law School Library collection. See also the letter of Vanzetti to Henderson, August 21, 1927; Harvard Law School Library collection; this letter is not given in its entirety in the printed Letters. 33. Evans, Outstanding . . . , 36. 34. Letter of May 12, 1927, to Henderson; Harvard Law School Library collection. 35. Letters, 111. 36. Ibid., 153. 37. Ibid., 84; edited to conform with original in Harvard Law School Library collection. 38. Letter of November 23, 1923, to Evans; Harvard Law School Library collec­ tion. 39. Ehrmann, The Untried Case . . . , 78. 40. Evans, Outstanding Features . . . , 33. 41. Letters, 241. 42. Ibid., 250. 43. Ibid., 94. 44. Ibid., 181. 45. Ibid., 231. 4. 5.

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46. Letter of September 28, 1925, to Thompson; Harvard Law School Library collection. 47. Letters, 319-26. 48. Ibid., 100. 49. Ibid., 127. 50. Ibid., 201. 51. Ibid., 202. 52. Ibid. 53. Ibid., 299-300. 54. Letter of July 17, 1923; Harvard Law School Library collection. 55. Letters, 2gg. 56. Ibid., 116-7. CHAPTER XVIII 1. Letter of October 22, 1922, to Alice S. Blackwell; Harvard Law School Library collection. 2. Letter of August 2, 1927, to W. G. Thompson; Harvard Law School Library collection. 3. Letter of December 2, 1921, to Henry W. L. Dana; Henry W. L. Dana collec­ tion. 4. Letter of November 11, 1926, to Mrs. Pettyjohn; Harvard Law School Library collection. 5. The chief listings of Vanzetti's reading are to be found in three places: Let­ ters, passim; Vanzetti, The Story of a Proletarian Life, 21-2; Gardner Jackson, "Sacco and Vanzetti," Nation, 127:175 (August 2«, 1928). 6. Letters, 144. 7. Ibid., 110. 8. Ibid., 234. 9. Ibid., 213-4. 10. Ibid., 315. 11. Letter of August 15, 1925 (to Mrs. Evans?); typed copy in Harvard Law School Library collection. 12. Letters, 216. 13. Letter of July 15, 1924 (to Alice S. Blackwell?); Harvard Law School Library collection. 14. Letters, 195. 15. Letter of September 27, 1925, to Alice S. Blackwell; Harvard Law School Li­ brary collection. 16. Letter of March 31, 1927, to Rose [Pesotta]; typed copy in University of Michigan Library. 17. Ibid. 18. Letters, 218-9. 19. Transcript, V:492o. Vanzetti's counsel corrected and normalized the English of his petition to the Governor. However, the changes suggested were of a very minor nature; the original draft by Vanzetti (in the manuscript collection at Har­ vard) is exceedingly close to the final form. 20. Letters, log. 21. Ibid., 107-8. 22. Ibid., 107. 23. Ibid., 210. 24. Ibid., 152-3.

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25. Letter of June 10, 1925, to Alice S. Blackwell; sentence omitted in the pub­ lished Letters; Harvard Law School Library collection. 26. Evans, Outstanding Features . . . , 41-2. 27. Letters, 82. 28. Ibid.., 175. 29. Ibid., g6. 30. Transcript, V:4922. 31. Letters, 401-4. "Vanzetti's Last Statement," is the narrative account of the interview between Vanietti and W. G. Thompson. The lawyer left the prison and at once set down his recollection of the event. As much of the conversation as had been heard by the death-house guard was checked against that witness's memory. The "Statement" was published in the Atlantic Monthly, in the New Republic, and the Letters (in which last place it is most readily accessible). 32. Fraenkel, The Sacco-Vanzetti Case, 25. Vanzetti's words were given to the press by the single reporter present at the execution; they appeared in identical form in all the newspapers. The anarchist journal, L'Adunata dei refrattari, 6:2 (August 27, 1927), significantly omits the qualifying word "some": it reads, ". . . voglio perdonare a voi per quello che state facendo a me." 33. Letters, 119. 34. Ibid., 306. 35. Ibid., 264. 36. Letter of June 5, 1925; Harvard Law School Library collection. 37. Letter of November 3, 1923, to Mrs. Virginia MacMechan; typed copy in Harvard Law School Library collection. 38. Letters, 286-7. 39. Letter of May 21, 1921, to Alice S. Blackwell; Harvard Law School Library collection. 40. Letter of [December 28?] 1925 to Amleto [Fabbri]; typed copy in Harvard Law School Library collection. 41. Schactman, Sacco and Vanzetti; Labor's Martyrs, 51. 42. Vanzetti, President A. L. Lowell . . . , 3. 43. Bulletin, I, no. 18, 6 [c. August 23, 1928]. 44. Letters, 212. 45. Ibid., 275. 46. Attention has been drawn to the fact that the most considerable group of omissions in the published Letters embraces Vanzetti's views on religion. 47. Letters of June 3, :924, and May 28, 1925, to Alice S. Blackwell; Harvard Law School Library collection. 48. Letter of May 28, 1925, to Alice S. Blackwell; Harvard Law School Library collection. 49. Letters, 221. 50. Ibid., 280. 51. Ibid., 106. 52. Evans, Outstanding Features . . . , 38. 53. This chapter, pp. 483-4. 54. Transcript, V:4g2i. 55. Letters, 287-8. 56. Letter of May 22, 1927, to Rose [Pesotta?]; typed copy in Labadie Collection, University of Michigan Library. 57. Transcript, V:492i. 58. Letters, 96. 59. Ibid., 81. 60. Ibid., 238-9. 61. Ibid., 143.

556

CHAPTER REFERENCES

62. Evans, Outstanding Features . . . , 39. 63. Letters, 88. 64. Transcript, V:4go4· CHAPTER XIX 1. Principles of Literary Criticism (New York: Harcourt, [1928]), 32. 2. 141:254 (February, 1928). 3. [Ellen Hayes. "Earth Talk"], The Relay, IV, no. 6, pp. 1, 2. 4. "Fear, Freedom, and Massachusetts," American Mercury, 18:281-92 (November, !9*9)· 5. New York World, May 15, 1927; Blackbooks, 1:24. 6. Lettres de Sdcco et Vanzetti (Paris: Grasset, [1931]), 15. 7. Letters, 325.

BIBLIOGRAPHY THE BIBLIOGRAPHY has seven main sections:

I. The record of the case. Official and semi-official documents relating to the legal proceedings; printed and typescript ma­ terial. Complete listing. II. Printed books, pamphlets, leaflets, mimeographed material, and volumes of clippings. Complete listing. III. Periodical material. Selective listing. IV. Newspaper material. Selective listing. V. Manuscript material. Complete listing, except for the fact that the Sacco-Vanzetti letters at Harvard are named as a group and not itemized separately. VI. Pictorial material. Selective listing. VII. Verse index. Complete listing. Only the most important periodical and newspaper articles have been placed in the bibliography; most of the references to such material will be found in the notes. The bibliography sections which are described as "complete" present all the material found so far; there must, of course, be other items which have not come to the attention of the writers of this book; information about such material will be gratefully received. The location of certain rare items is indicated by abbreviations. These are: DLC Library of Congress. GLJ In the possession of G. Louis Joughin. HWLD In the possession of Henry Wadsworth Longfellow Dana. MH Harvard College, or Harvard Law School, Library. NN New York Public Library. NNC Columbia University Library. I.

THE RECORD OF THE CASE.

The material in this section is presented in the order in which it appears in The SaCco-Vanzetti Case; Transcript of the Record. Commonwealth of Massachusetts vs. Nicola Sacco and Bartolomeo Vanxetti. Argu­ ment of Jeremiah J. McAnarney [for the defense at the close of the Dedham trial]. Typescript. MH. See Transcript, 11:2148-79.

557

558

BIBLIOGRAPHY

COMMONWEALTH OF MASSACHUSETTS VS. N I C O L A SACCO AND BARTOLOMEO

VANZETTI.

Criminal Cases no. 5545-5546. Defendants' Exceptions. Norfolk County [Superior Court]. Vol. I, pp. 1-608; Vol. II, pp. 609-1206. Correction of Original Bill of Exceptions. P. 1207. MH. See Transcript, 111:2267-3477. (continuation of p r e c e d i n g item) CORRECTION OF ERRORS AND OMISSIONS IN B I L L OF EXCEPTIONS ALLOWED OCTOBER 2, 1 9 2 4 , AND PRINTED, BUT N O T Y E T E N TERED IN THE SUPREME JUDICIAL COURT; AND A STATEMENT OF CERTAIN MATERIAL CIRCUMSTANCES

OCCURRING

SINCE THE

TRIAL.

Pp.

1-11.

MH.

See

Transcript,

IV:3481-91. ( c o n t i n u a t i o n of p r e c e d i n g i t e m ) DEFENDANTS' BILL OF EXCEPTION TO DECISION ON SECOND SUPPLEMENTARY MOTION FOR A N E W T R I A L . P p .

1-37. M H .

See

Transcript, IV:3493-52g. ( c o n t i n u a t i o n of p r e c e d i n g i t e m ) SUBSTITUTE BILL OF EXCEPTIONS OF BARTOLOMEO VANZETTI IN R E HEARING ON FIRST SUPPLEMENTAL MOTION FOR A N E W T R I A L .

Norfolk County [Superior Court], Pp. 1-197. MH. See Transcript, IV:3535-731. SUPREME JUDICIAL COURT FOR THE COMMONWEALTH. COMMONWEALTH OF MASSACHUSETTS v.

NICOLA

SACCO AND BARTOLOMEO VANZETTI. BRIEF

FOR

THE

DE-

FENDANTS. January Sitting, 1926; no. 5119. Pp. 1-190. MH. See Transcript, IV:3g61-4151. (In the M H collection this item and the next following are bound in reverse order to that of the Transcript.) BRIEF FOR THE COMMONWEALTH. Pp. 1-115. MH. See Transcript, IV-.iuft-zQ'j. COMMONWEALTH OF MASSACHUSETTS vs.

N I C O L A SACCO AND BARTOLOMEO

VANZETTI.

DEFENDANTS' AMENDED BILL OF EXCEPTIONS. Norfolk County [Superior Court], Pp. 1-423. MH. See Transcript, V:436i-78i. SUPREME JUDICIAL COURT FOR THE COMMONWEALTH. COMMONWEALTH OF MASSACHUSETTS v. NICOLA SACCO AND BARTOLOMEO VANZETTI. DEFENDANTS' BRIEF. J a n u a r y

Sitting, 1927; no. 5583. Pp. 1-80. MH. See Transcript, V:4782-86i. BRIEF FOR THE COMMONWEALTH. P p . 1-15. M H . See Transcript,

V.-4863-77.

Advance Sheets, Opinions of the Supreme Judicial Court. Opinion filed April 5, 1927. [Pp. 1-10.] MH, set in at p. 14 of the preceding item. Compare with Transcript, V:488o-94Statements of Sacco and Vanzetti; Sentence [Proceedings of April 9, 1927]. Pp. 1-17 (another copy, pp. 1-20). Typescript. MH. See Transcript, V:4895-go5Petition of Vanzetti. Pp. 1-22. Typescript. MH. See Transcript, V:4gio-23. Transcript of the Record of the Sacco-Vanietti Trial. 13 volumes (1-5, 5a, 6-12). Typescript. MH. T h e record prepared by Fuller for Lowell, with letter of transmittal. This Transcript has not been collated with the Holt publication; they appear to cover the same ground with minor differences. [Hearings before the Advisory Committee.] 8 volumes ([A] 1-123, 2:65-124 [-f 16 additional pages], 3:125-237, 4:238-47, 5 and 6 (as one) 1248-95, [7]:i-i6o [ + 1]). T w o other sets begin with volume i. Typescript. MH. See Transcript, y-4949-5378-

Decision of Gov. Alvan T. Fuller . . . Boston: [no publisher], August 3, 1927. Pp. 1-20. MH. See Transcript, V:5J78c-5378h. T H E SUPREME COURT OF THE UNITED STATES. NICOLA SACCO AND BARTOLOMEO V A N ZETTI, Petitioners,

v. COMMONWEALTH OF MASSACHUSETTS, Respondent.

PETITION

FOR WRIT OF CERTIORARI . . . O c t o b e r t e r m , 1927; no. 467. 4 p p . a n d 3 p p .

Offset printing from typescript. MH. See Transcript, V:55O8-I5Jurors. [Examination by defense counsel re handling of shells in jury room at the Plymouth trial.] Typescript. MH. (The findings of this examination were incorporated in a letter of June 15, 1927, addressed by defense counsel to Fuller; see Transcript, VL352-7.)

BIBLIOGRAPHY

559

II. PRINTED BOOKS, PAMPHLETS, LEAFLETS, MIMEOGRAPHED MATERIAL, AND VOLUMES OF CLIPPINGS.

This section is in three parts: A. Main List. B. Publications of the Sacco-Vanzetti Defense Committee in Boston. C. Unseen and Dubious Items.

A. Main List. Addams, Jane. The Second Twenty Years at Hull-House. New York: Macmillan, •93°·

"After Two Years." No place: no publ., n.d. 2 pp. GLJ. A reprint of an editorial in the New Republic, 60:5-6 (August 21, 1929). Allen, Frederick L. Only Yesterday. New York: Harper, 1931. Amedo, Luis. Un error judicial; el proceso Sacco y Vanzetti. No. »84 of Novelas y cuentos (July 10, 1932). Published in Madrid, with sales agencies in Buenos Aires and Habana: no publ. MH. America Arraigned! [An anthology of poems.] Ed. by Lucia Trent and Ralph Cheyney. Introduction by John H. Holmes. New York: Dean, 1928. American Civil Liberties Union. The Nation-Wide Spy System Centering in the Department of Justice. New York: American Civil Liberties Union, May, 1924. The Shame of Pennsylvania. New York: American Civil Liberties Union 1928. American Issues; Volume One, The Social Record. Ed. by Thorp, Curd, and Baker. New York: Lippincott, 1941. Anderson, Maxwell, and Harold Hickerson. Gods of the Lightning [and] Outside Looking In. New York: Longmans, 1928. [Godi of the Lightning as] Und wir haben nichts dagegen getan. German adaptation by Konrad Marl. Berlin: Fischer, [c. 1930]. DLC. [Gods of the Lightning as] Las mesianistas. Madrid: Agiular1 1931. DLC Anderson, Maxwell. Winterset. Washington: Anderson House, 1935. Asch, Nathan. Pay Day. [New York]: Brewer and Warren, 1930. Behrman, Samuel N. Rain from Heaven. In The Theatre Guild Anthology. New York: Random, 1936. Bernheimer, Louis. The Trial of Sacco and Vanzetti; A Summary of the Outstand­ ing Testimony. New York: no publ., May 15, 1927. Blackbooks. A collection of newspaper clippings on the case, in ten bound vol­ umes (black binding). MH. Bliven, Bruce. "In Dedham Jail." In The New Republic Anthology, /9/5-/935. Ed. Conklin. New York: Dodge, 1936. Branting, George. Sacco-Vanzetti dramat; justitiemorden i Massachusetts. Stock­ holm: Brand, [1927]. MH. Broun, Heywood. Collected Edition of Heywood Broun. Ed. H. H. Broun. New York: Harcourt, 1941. Buda, Mario. See under Edward H. James. Charges of Illegal Practices of the Department of Justice; Hearings Before a Sub­ committee of the Committee of the Judiciary, United States Senate. Sixty-sixth Congress Third Session. January /9 to March 3, /921. Washington: Government Printing Office, 1921. Codman1 John S. Statement by John S. Codman, Chairman of the New England Civil Liberties Committee . . . March 11, 1921. 2 pp., mimeographed. HWLD.

560

BIBLIOGRAPHY

Cohn, Michael A. Some Questions and an Appeal. New York: Independent SaccoVanzetti Committee, 1927. Two Worlds; An Imaginary Speech Delivered by Bartolomeo Vanzetti Before Judge Webster Thayer: Why Sentence of Death Should Not Be Pronounced on Him and Nicola Sacco. New York: Independent Sacco-Vanzetti Committee, 1927. Collin, Fernand. L'affaire Sacco et Vanzetti. Extrait de la revue de droit pdnal et de icrtminologie (Aout-Septembre-Octobre-Novembre 19ZJ. Louvain: Mafraus, n.d. Corcos, Fernand. Sacco et Vanzetti sont innocents: liberons-les! Paris: Comiti SaccoVanzetti, Comiti Internationale de difense anarchiste (June, 1927?]· NN; HWLD. David, Henry. The History of the Haymarket Affair. New York: Farrar, 1936. The Deadly Parallel; Sacco's Goodbye to His Son, Gary's Advice to His Heirs. No place: no publ., [about December, 1927]. A printed postcard. GLJ. Delhorbe, Cicile. L'affaire Dreyfus et Ies ecrivains frangais. Paris: Attinger, 1932. De Voto, Bernard. We Accept with Pleasure. Boston: Little, Brown, 1934. Dewey, John. "Psychology and Justice." In Characters and Events. New York: Holt, 1929. A reprint of the New Republic article; see below, Section III. Dictionary of American Biography. New York: Scribner's, 1935. The Sacco-Vanzetti article appears at 16:279-80, and is by S[ilvester] G[ates], Do Not Forget! No place: no publ., [1928?]. An advertising leaflet on the publication of the Transcript. Dos Passos, John. The Big Money. New York: Harcourt, 1936. US.A. New York: Harcourt, 1937. The Big Money constitutes vol. Ill of this trilogy. Ehrmann, Herbert B. Remarks . . . ; see below under Proceedings . . . The Untried Case: The Sacco-Vanzetti Case and the Morelli Gang. New York: Vanguard, ig$$. . Ibid. London: Hopkinson, 1934. Ellis, [Fred]. The Case of Sacco and Vanzetti in Cartoons from the Daily Worker, by Ellis. New York: Daily Worker, 1927. MH. Evans, Elizabeth G. New Light on a Bad Business. [Boston]: no publ., n.d. A re­ print of a New Republic article. On Guard. Boston: League for Democratic Control, [about March, 1921]. HWLD. . Outstanding Features of the Sacco-Vanzetti Case. Boston: New England Civil Liberties Committee; New York: American Civil Liberties Union; 1924. . Sacco and Vanzetti. No place: no publ., n.d. A reprint of a Survey article; see below, Section III. Der Fall Sacco und Vanzetti: eine Herausforderung des Weltproletariats. Published by the Central Committee of the German Communist Party. Berlin: Vereinigung Internationaler Verlags-Anstalten, 1927. NN. Farrell, James T. Bernard Clare. New York: Vanguard, 1946. Floyd, William. There Is Justice. New York: Sacco-Vanzetti National League, [1928?]. Folterkammer Amerika: Sieben Jahre Sacco-Vanzetti. Published by the Central Ex­ ecutive Committee of "Roten Hilfe Deutschlands." Berlin: Mopr-Verlag, 1927. NN; HWLD. Fraenkel, Osmond K. The Sacco-Vanzetti Case. In the American Trials series. New York: Knopf, 1931. Frankfurter, Felix. "Case of Sacco and Vanzetti." In Law and Politics; Occasional Papers. New York: Harcourt, 1939. "Reprinted verbatim from the Atlantic Monthly for March, 1927"; see below, Section III.

BIBLIOGRAPHY ,Frankfurter, Felix. The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen. Boston: Little, Brown, March, 1027. Galleani, Luigi. Writings by this anarchist were well known to Vanzetti; the items here listed are known to have been published in this country—all, New York: L'Adunata dei Refrattari, Box 1, Station 18, Newark, N. J., n.d. Contro la guerra. Contro la pace. Faccia a faccia col nemico. Figure e figuri. NN. La fine dell' anarehismo? NN. Memorie autobiografiche di Clemente Duval. Per la rivoluzione sociale. NN. General Defense Committee. [A letter.] Seattle: General Defense Committee, De­ cember, 1927. MH. Asks for the support of striking Colorado coal miners by Sacco-Vanzetti sympathizers. Goldberg, Louis P., and Eleanore Levenson. Lawless Judges. New York: Rand School Press, 1935. Goodwin, Frank A. Sacco-Vanzetti and the Red Peril; Speech Made by Frank A. Goodwin Before the Lawrence Kiwanis Club, June 30, /927. No place: no publ., n.d. (Rubber-stamped: "Important, Please Read Carefully, Cartright Coal Corp., Philadelphia.") NN (American Civil Liberties Union Cases, 192J, MassachusettsNew Jersey, 1:187). Grabill, Ethelbert V. Sacco and Vanzetti in the Scales of Justice. Boston: The Fort Hill Press, 1927. DLC; MH. Grant, Robert. The Convictions of a Grandfather. New York: Scribner's, 1912. Fourscore: An Autobiography. Boston: Houghton, 1934. Greenslet, Ferris. The Lowells and Their Seven Worlds. Boston: Houghton, 1946. Under the Bridge: An Autobiography. New York: Literary Classics, 1943. Gunther, Jack D., and Charles O. The Identification of Firearms from Ammuni­ tion Fired Therein. New York: Wiley, 1935. Harrison, Henry, ed. See below, The Sacco-Vanzetti Anthology of Verse. Harvard. Numerous bound volumes of clippings, pamphlets, correspondence, typed briefs, etc. Most of the material is in the Law School Library: a few items are in the Widener Library and the Houghton Library; the items are entered separately in this bibliography. Have Sacco and Vanzetti Died in Vain? Published under the auspices of the So­ cialist Party, Sixth Congressional District, Kings County, New York. No place, no publ., August 20, 1936. University of Texas Library. A Mooney-BiIlings leaflet. House Committee on Rules. House Committee on Rules; Hearing of June 1, 1920. Published by the Department of Justice, Bureau of Immigration, Division of Radical Publications. [Washington: Government Printing Office, 1920?] The copies in DLC and NN cannot be located. Howe, Helen. We Happy Few. New York: Simon and Schuster, 1946. Hughes, Charles E. Some Observations on Legal Education and Democratic Process. In Two Addresses Delivered Before the Alumni of the Harvard Law School, at Cambridge, June 21, 1920. Cambridge: Harvard Law School Association, [1920], James, Edward H. An Interpretation of History; Speech Delivered by Ε. H. James at Winter Garden in Lawrence, Mass., May 27, in Behalf of Sacco and Vanzetti. Concord, Mass.: Ε. H. James, 1927. The Story of Mario Buda Before the Jury of the World. Told on the Island or Lipari, Province of Messina, Italy, February 14-16, 1928, in the Presence of Commendatore Giuseppe Dosi, of the Italian Police, and Edward Houlton James of Boston, Massachusetts, U.S.A. Mimeographed. MH-

562

BIBLIOGRAPHY

Kazin, Alfred. On Native Grounds. New York: Reynal and Hitchcock, 1942. Lehning, Arthur M. De feiten en de beteekenis van de zaak Sacco en Vanietti {The facts and the meaning of the Sacco-Vanzetti affair). Utrecht-Amsterdam: Cohen, September, 1927. University of Texas Library. Lest We Forget! London: National Committee, International Class War Prisoners Aid, [September, 1927]. University of Michigan Library. Lest We Forget. August 23rd, /927, August 23, 1931. No place: no publ., n.d. ([Signed] The Libertarians.) University of Michigan Library. Llewellyn, Karl N. "The Sacco-Vanzetti Case." In Criminal Law and Its Adminis­ tration: Cases, Statutes, and Commentaries. Ed. Jerome Michael and Herbert Wechsler. Chicago: Foundation Press, 1940. Lyons, Eugene [Morris Gebelow]. Assignment in Utopia. New York: Harcourt, 1937. The Life and Death of Sacco and Vanzetti. New York: International Pub­ lishers, 1927· Ibid. London: Lawrence, [1928]. Marcantonio, Vito. Labor's Martyrs. Introduction by William Z. Foster. New YorkWorkers Library Publishers, October, 1937. Marks, Jeannette A. Thirteen Days. New York: A. and C. Boni, 1929. Martinez, Jos6 Augustfn. Sctcco y Vanzetti, un grave error judicial. Habana: Cul­ tural; Madrid: Esposa-Calpe, 1930. Les martyrs du proletariat: Sacco et Vanzetti. Paris: Hayard, [1927?]. Massachusetts: A Guide to Its Places and Its People. American Guide Series. Written and Compiled by the Federal Writers' Project. Boston: Houghton, 1937. McCausland, Elizabeth. The Blue Menace. Springfield, Mass.: The Republican, [1928]. "A series of articles originally printed under the nom-de-plume "Libertas' in the Springfield Republican (March 19-27, 1928)." McKenney, Ruth. Jake Home. New York: Harcourt, 1943. Mears, George E. Remarks . . . ; see below under Proceedings . . . Morder Massachusetts! Eine sachliche Darstellung des Martyriums der zwet letzten proletarischen Opfer der Amerikanischen Klassenjustiz, Nicola Sacco und Bartolomeo Vanzetti. New York: Verband Internationaler Arbeiter der Vereinigten Staaten, [1928?]. Musmanno, Michael A. After Twelve Years. New York, London: Knopf, 1939. . Appeal to His Excellency, Alvan T. Fuller . . . in Behalf of Nicola Sacco and Bartolomeo Vanzetti . . . Delivered May 19, 1927. [Pittsburgh: Alliance, 1927.] MH. Nock, Albert J. The Book of Journeyman. New York: Publishers of the New Freeman, 1930. A Journey into Rabelais's France. New York: Grosset, 1934. O'Brien, Robert L. My Personal Relation to the Sacco Vanzetti Case as a Chapter in Massachusetts History. No place: no publ., copyright August 20, 1928, by Robert Lincoln O'Brien. HWLD. On the Twenty-third of August, 1927 Nicola Sacco and Bartolomeo Vanzetti . . . Were Done to a Cruel Death. . . . They Are at Peace. . . . No place: no publ., n.d. A folio broadside. Paul, Elliot. The Last Time I Saw Paris. New York: Sun Dial, 1943. Post, Louis F. The Deportations Delirium of Nineteen-Twenty. Chicago: Kerr, 1923. Pringle, Henry F. The Life and Times of William Howard Taft. 2 vols. New York: Farrar, 1939. Proceedings Before the Council and Members of the Bar Association of the City of Boston in Memory of William G. Thompson, 1938, on Saturday, Match 19,1938. Memorial Prepared by a Committee of the Bar Association of the City of Bos­ ton, and Read by Bently W. Warren, Chairman. Remarks of George E. Mears,

BIBLIOGRAPHY

563

Esquire, and Herbert B. Ehrmann, Esquire. [Boston: Bar Association of the City of Boston, 1938.] Proletarian Literature in the United States: An Anthology. Ed. by Granville Hicks and others. New York: International Publishers, 1935. Raby, R, Cornelius. Fifty Famous Trials. Washington, D. C.: Washington Law Book Co., 1937. Red Radicalism as Described by Its Own Leaders: Exhibits Collected by A. Mitchell Palmer. Washington: Government Printing Office, [before March 10, 1920]. Report upon the Illegal Practices of the Department of Justice. Washington, D. C.: National Popular Government League, May, 1920. New York: American Civil Liberties Union, May, 1920. Rice, M. T., and Ed Delaney. The Bloodstained Trail; a History of Militant Labor in the United States. Seattle: The Industrial Worker, December, 1927. Sacco and Vanzetti Shall Not Die! Chicago: International Labor Defense, [1926 or 1927]. HWLD. Sacco and Vanzetti Shall Not Die! Sacco e Vanzetti non devono morire! Sacco i Vanzetti ne dolzhnii ymeretch! [New York]: no publ., [June 16, 1927?]. Trilingual triptych. Sacco and Vanzetti: Shall There Be a Mooney Frame-up in New England? [Boston]: New England Civil Liberties Committee, n.d. HWLD. Published after the Plymouth trial and before the Dedham trial. SaCco and Vanzetti Soon to Learn Fate. No place: no publ., n.d. This item is selfdescribed as containing reprints from the June 15, 1924, issue of the New York Times and the June 18, 1924, issue of the Nation, but this is apparently not correct. It contains the poem "A Jest" by Lisa. University of Michigan Library. Sacco e Vanzetti: i martiri dell' ideale. [A song.] Words by Renzo Vampa, music by F. Pensiero. New York: Italian Book Co., 1927. The words are in parallel Italian and Neapolitan text. University of Michigan Library. Sacco et Vanzetti. Paris: Hayard, [1928]. NN. Sacco, Nicola, and Bartolomeo Vanzetti. The Letters of Sacco and, Vanzetti. Ed. by Marion D. Frankfurter and Gardner Jackson. New York: Viking, 1928. Illus­ trated. Ibid. New York: Vanguard, 1930. . [Ibid., as] Lettres de Sacco et Vanzetti. Published by Marion D. Frankfurter and Gardner Jackson; editorial direction by Jean Guehenno; translation by Jeanne Guehenno. Paris: Grasset, 1931. [Ibid., as] Pisma Sacco i Vanzetti. Moscow, Leningrad: State Publishing Agency for Literature, 1931. HWLD. Sacco, Nicola. [Letters.] See above, under Elizabeth G. Evans, Outstanding Fea­ tures . . . [Unpublished letters.] See below, Section V. The Sacco-Vanzetti Anthology of Verse. Ed. by Henry Harrison. New York: Henry Harrison, 1927. "The Sacco-Vanzetti Case [a radio script]. In Those Sensational Years! [a series of radio plays]. New York: American Broadcasting Company, R. W. Winsor Agency, March 27, 1947. The Sacco-Vanzetti Case; an Editorial Reprinted for the American Civil Liberties Union from the New Republic of June pth, 1926 [New York: American Civil Liberties Union, 1926.] DLC. 4The Sacco-Vanzetti Case in Russia." In the Bulletin of the Relief Fund of the International Working Men's Association for Anarchists and Anarcho-Syndicalists Imprisoned or Exiled in Russia. Paris, Berlin: Imp[rimerie] La Frater-

5 64

BIBLIOGRAPHY

nelle, March, 1928. HWLD. The editor of this Bulletin was Alexander Berkman. The Sacco-Vanzetti Case; Transcript of the Record of the Trial of Nicola Sacco and Bartolomeo Vanzetti in the Courts of Massachusetts and Subsequent Proceed­ ings, 1920-7. 5 vols, and supplemental volume. [Charles C. Burlingham and Bernard Flexner, editorial subcommittee for the sponsors.] New York: Holt, 1928-9. The Sacco-Vanzetti Case; Twenty Years Later. [Boston: published by Aldino Felicani, Gardner Jackson, and others, August, 1947]. Sacco-Vanzetti Dawn Publishing Association. The Satico-Vanzetti Dawn. Vol. I, no. 1. [New York]: Sacco-Vanzetti Dawn Publishing Association, [1927]. MH. Sacco-Vanzetti National League. Several items were published by this organization at its New York office. News Bulletin. January, 1929. Describes a visit by John Silvestro to Vanzetti's father. Mimeographed. MH. A Sacco Revolver Expert Revealed. See below, under Arthur Warner. Sacco-Vanzetti National League, Are You a Member? n.d. MH. Ten Questions That Have Never Been Answered. May, 1928. HWLD. There Is Justice. See above, under William Floyd. Sacco-Vanzetti New Trial League. Sacco-Vanzetti Bulletin. Boston: Sacco-Vanzetti New Trial League, No. 1, [May, 1924]. This item is not to be confused with the Official Bulletin. MH; University of Michigan Library. Schactman, Max. Sitcco and Vanzetti; Labor's Martyrs. New York: International Labor Defense, 1927. Schiavina, R[affaele]. Sacco e Vanzetti; cause e fini di un dMitto di stato. Paris: Bucco, 1927. MH. "Edito a cura del comitato anarchico Pro vittime politiche d'ltalia." Seven Amazing Documents. Boston: Committee on Social Justice of the Community Church, n.d. MH. Shields, Art[hur], Are They Doomed? New York: Workers Defense Union, [early in 1921]. Sinclair, Upton. Between Two Worlds. New York: Upton Sinclair, 1941. Boston. Pasadena, Calif.: Upton Sinclair, 1928. Ibid. 2 vols. New York: A. and C. Boni, 1928. . Ibid. [In German.] Berlin: Malik, 1929. Ibid. [In Spanish.] Barcelona: Bauzd, 1930. Jimmie Higgins. Pasadena, Calif.: Upton Sinclair, 1918. World's End. New York: Upton Sinclair, 1940. Souchy, Augustin. Sacco und Vanzetti, zwei opfer Amerikanischer dollar justiz. Berlin: "Der Syndikalist," 1927. University of Michigan Library. Stark, Louis. "A Case That Rocked the World." In We Saw It Happen. Ed. by H. W. Baldwin and Shepard Stone. New York: Simon and Schuster, 1938. Taft, William H. Labor and Capital . . . Address . . . Before Cooper's Institute . . . January 10th, 1908. Columbus, Ohio: no publ., [1908]. Thinet, Louis. Le drame Sacco-Vanzetti. Paris: Baudini£re, 1927. Thurber, James, and Elliott Nugent. The Male Animal. New York: French, 1941. Tragedia e supplizio di Sacco e Vanzetti. Naples: G. Rocco, [1928?]. Appended is a "Tragic Epilogue" by Arnaldo Mussolini, reprinted from Popolo d'ltalia. NN. A Treasury of the World's Great Letters. New York: Simon and Schuster, 1940. Trent, Lucia, ed. See above, America Arraigned! Vanzetti, Bartolomeo. Background of the Plymouth Trial. Boston: Road to Free­ dom Group, 1926. [Letters.] See above, Nicola Sacco and Bartolomeo Vanzetti, The Letters of Sacico and Vanzetti.

BIBLIOGRAPHY

565

Vanzetti, Bartolomeo. [Letters.] See above, Elizabeth G. Evans, Outstanding Fea­ tures . . . . [A poem, in English translation.] See above, Upton Sinclair, Boston, New York: A. and C. Boni, 1928. 11:641. President A. L. Lowell of Harvard, President S. W. Stratton of Judge Robert Grant and Governor Fuller of Massachusetts in the Presence of Vanzetti; Historic Analysis of Their Murderous Unreason Made by Vanzetti Just Before They Strapped Him in the Electric Chair and Threw the Switch; [letter] to the International Anarchist Defense Committee, Paris, July JO, /927. No place: no publ., n.d. University o£ Michigan Library. The Story of a Proletarian Life. See below, Section II, B. To the Governor and Council of Massachusetts [the petition for clemency]. See above, The Sacco-Vanzetti Case; Transcript . . . V:49io-«3· . Vanzetti's Last Statement. See below, Section III, under William G. Thomp­ son. [Unpublished letters.] See below, Section V. Vorse, Mary H. A Footnote to Folly. New York: Farrar, 1935. Walled in This Tomb; Questions Left Unanswered by the Lowell Committee in the Sacco-Vanzetti Case and Their Pertinence in Understanding the Conflicts Sweep­ ing the World at This Hour. For Especial Consideration by the Alumni of Harvard University During Its Tercentenary Celebration. [Boston: Excelsior Press, 1936.] MH; GLJ. Warner, Arthur. A Sacco Revolver Expert Revealed. New York: Sacco-Vanzetti Na­ tional League, n.d. Reprinted from the Nation, 125:625-6 (Dec. 7, 1927). MH. Wells, Herbert G. Mr. Blettsworthy on Rampole Island. London: Benn, 1928. Ibid. New York: Doubleday, 1928. The Way the World Is Going. New York: Doubleday, 1929. Welsh, Francis R. An American Civil Liberties Union National Committeeman in Action; False Statements of Felix Frankfurter of Harvard Law School in SaccoVanzetti Case. No place: no publ., May 14, 1927. White, William Allen. Forty Years on Main Street. New York: Farrar, 1937. Wise, Stephen S. As I See It. New York: Jewish Opinion, 1944. Wood, Charles E. S. Heavenly Discourse. New York: Vanguard, 1927. Ibid. New York: Penguin, 1946. Yeomans, Henry A. Abbott Lawrence Lowell, 1856-1943. Cambridge: Harvard, 1948. Yrondy, Pierre. Sept ans d'agonie; Ie drame Sacco-Vanzetti. Paris: Prima, [1929?].

B. Publications of the Sacco-Vanzetti Defense Committee in Boston. L'Agitazione. Published by the Sacco-Vanzetti Defense Committee of Boston; all issues except the last precede the publication of the Official Bulletin; the only known file is in the possession of Aldino Felicani. I, no. ι December 1, 1920. 2 December 20, 1920. 3 January 7, 1921. 4 January 21, 1921. 5 February 10, 1921. 6 February 28, 1921. 7 April 15, 1921. 8 April 30, 1921. 9 May 14, 1921. 10 June 4, 1921. 11 June 12, 1921. 12 June 22, 1921. 13 July 6, 1921. •4 July So. 1921·

566

BIBLIOGRAPHY

L'Agitazione (continued) 15 August 20, 1921. 16 September 10, 1921. 17 September 30, 1921. 18 October 25, 1921. 19 November 20, [1921]. 20 December 24, [i]98i. II, no. 1 January 15, 1922. 2 January 30, 1922. 3 February 15, 1922. 4 March 26-30, 1922. 5 May 4, 1921 [sic], 6 July 30, 1922. 7 September 20, 1922. III, no. ι January 15, 1923. [2] [Issue not seen.] 3 February 20, 1923. 4 March 4, 1923. 5 April 1, 1923. 6 June 20, [1923]. 7 September 6, 1923. 8 April 21, 1924. IV, no. 1 February, 1925. Protesta umana. I, no. 1, June, 1926. Obviously like the issues of L'Agitazione. America's Conscience. [1921.] Excerpts of opinion from fourteen sources. The Awakening of America's Conscience. [April, 1927.] Thirty-eight excerpts from American newspapers. Conspiracy Against Sacco and Vanzetti. (January, 1921?] A brief statement o£ the case prior to the Dedham trial. Debs, Eugene V. Sacco and Vanzetti Must Not Die. [1926?] An appeal to American labor. Appello ai lavoratori Americani. [Publisher not indicated; 1926?] The pre­ vious item in Italian. Decision of Gov. Alvan T. Fuller in the Matter of the Appeal of Bartolomeo Van­ zetti and Nicola Sacco from Sentence of Death Under the Laws of the Com­ monwealth. [August, 1927.] A reprint of the Fuller decision and the Advisory Committee report. Dos Passos, John. Facing the Chair; Story of the Americanization of Two Foreignborn Workmen. 1927. The Fight Continues, [March, 1923.] The progress of the case. Financial Report of the Sacco-Vanzetti Defense Committee from the Date of Or­ ganization, May 5, 1920, to July 31, 1925. Boston: The Century Press, 1925. Guadagni, F[elix]. Una mostruositi giudiziaria; esposizione sinteticia dei fatti piii importanti inerenti al casa. October 28, 1924. A general review of the case. [Letter.] Signed by Lyons. [1921?] Asks for funds. [Letter.] Signed by Lopez. January, 1921. Appeal for support; lists support of American Civil Liberties Union, Workers Defense Conference of New England, Workers Defense Union of New York, and numerous Italian defense bodies. [Letter.] [1924?] Quotes Locomotive Engineers Journal of November, 1924; asks for money. [Letter.] January, 1927. Announces Dos Passos booklet; indicates that Vanzetti's "letter to a Mexican comrade" is enclosed. [Letter.] April u, 1927. Petition signature sheet asking for a committee to be ap­ pointed by the Governor.

BIBLIOGRAPHY

567

Liberation. Year 1, no. 2 (December 15, 1923). University of Michigan Library. ". . . editado por el Comiti de Defensa pro-Sacco y Vanzetti"; at the same address as the Sacco-Vanzetti Defense Committee. Massachusetts Reputation at Stake!!! [May, 1927.] Vanzetti's petition to Fuller; affidavits relating to Thayer's prejudice. Massachusetts the Murderer. [August or September, 1927.] The previous item, re­ published after the executions with added editorial comment. The Official Bulletin of the Sacco-Vanxetti Defense Committee of Boston. All issues are vol. I: No. 1 December, 1925. 2 July, 1926. 3 August, 1926. 4 September, 1926. 5 October, 1926. 6 November, »926. 7 December, 1926. 8 January, 1987. 9 February, 1927. 10 March, 1927. 11 April, 1927. 12 May 15, 1927· 13 June, 1927. 14 August, 1927. 15 September, »927. 16 [About November, 1927]. 17 [About February, 1928]. 18 [About August 23, 1928]. [19] September 11, 1930. Title: Sdcco-Vanzetti Memorial Bulletin; Third An­ niversary of Their Execution; Massachusetts Tercentenary Number; a Sacco-Vanzetti Defense Official Bulletin. Note. The Union Catalogue lists several libraries as holding copies o£ No. 1; all but one of these copies are actually the No. ι (and only) issue of the SaccoVanzetti New Trial League, May, 1924; the only copy of the authentic first issue of the Official Bulletin which has been located is in the possession of the Wisconsin Historical Society. Protesta umana. See this section under L'Agitazione. Le ragioni d'una congiura. [1924?] A general review of the case. Reflections on the Sacco-Vanzetti Tragedy. [1928?] Prints Millay's Fear, Thompson's "Vanzetti's Last Statement," Dewey's "Psychology and Justice," and other ma­ terial. Sacco and Vanzetti Speak to Judge Thayer; the Fearless Words of Two Innocent Men, Victims of a Legalized "Frame-Up." A Dramatic Picture of America Per­ verted. [After April 9, 1927.] The speeches at the sentencing. The Story of the Sacco-Vanzetti Case, Including an Analysis of the Trial. [Decem­ ber, 1921.] Advance proofs of this item in HWLD. Vanzetti, Bartolomeo. The Story of a Proletarian Life. Translated by Eugene Lyons; foreword by Alice S. Blackwell. 20 pp. Ibid. With an appreciation by Upton Sinclair. 24 pp. Victory Is in Sight. [January or February, 1923.] What Do You Thinkf [1926 or 1927.] Nine affidavits on the Department of Justice phase of the case. World Opinion Says They Shall Not Die. [December, 1924?]

568

BIBLIOGRAPHY

C. Unseen and Dubious Items. The literature on the Sacco-Vanzetti case contains references to a number of items which have not been seen; some of these items may not in fact exist. Bjorklund, J. Sacco och Vanzetti. Branting, Georg. The Case of Saceo and Vanzetti. The Fight in the Senate Judiciary Committee over the Walsh Report. Washington: National Popular Government League, 1922. Li Pei Kan. [Pamphlets.] An editorial footnote in The Letters . . . reads: "Li Pei Kan of Shanghai, China, a student at the College de Chateau Thierry, Aisne, France, during the last years of the Sacco-Vanzetti case. He wrote several pam­ phlets on the case in Chinese, the principal one being On the Scaffold." Muhsam, Erich. "Ein denkmal fiir Sacco und Vanzetti." Staatsrason. Sacco, Nicola, and Bartolomeo Vanzetti. [Letters . . . ; the Frankfurter-Jackson edi­ tion.] Frankfurt: Frankfurter Societats-Druckerei. Ibid. A Spanish edition. Vanzetti, Bartolomeo. Events and Victims [a novel]. Numerous references to this work in The Letters . . . indicate that it was finished by the fall of 1923. A brief passage is quoted in Sinclair's Boston (New York: A. and C. Boni, 1928), 11:565. Aldino Felicani is certain that the work was printed. No copy has been located. A review of Charles and Mary Beard, The Rise of American Civilization. Referred to in the Nation, 127:177 (August 22, 1928). ["Romantic nature poems in Italian."] Referred to in the Nation, 127:177 (August 22, 1928). ["A series of essays analyzing the Boston newspapers."] Referred to in the Nation, 127:177 (August 22, 1928). ["A Series of Letters Attacking Syndicalists and Syndicalism."] Referred to in the Nation, 127:177 (August 22, 1928). These articles are known to have ap­ peared in the anarchist L'adunata dei refrattari, published in Newark, N. J.; the only known file of this journal, in NN, does not go back to the pertinent 1921-3 period. III. PERIODICAL MATERIAL. Abbott, Ernest H. "What Is the Best Defense of the Truth?" Outlook, 147:362-3 (November 23, 1927). Abbott, Leonard D. "Sacco and Vanzetti as I Knew Them." Road to Freedom, 4, no. 3 (October, 1927, pp. 2-3). "Sacco and Vanzetti Must Not Diel" The Square Deal, 1 (September, 1926, pp. 32-6). Cartoon by Boardman Robinson; photographs. L'adunata dei refrattari. See above. Section II, C, under Vanzetti, ["A Series of Letters Attacking Syndicalists . . ."]. "The American Editorial Mind." The Lantern, 2, no. 3 (August, 1929, pp. 23-4). "American Justice." New Statesman, 29:560-1 (August 13, 1927). Letters of protest to this article were printed in 29:706 (September 17, 1927). Baldwin, Roger N. "Sacco and Vanzetti—Undying Symbols." Unity, 99:222 (August 16. 1937)· Baldwin, Roger N., and Corliss Lamont. "Harvard Heretics and Rebels." Nation, '42--733 (June 10, 1936). Beffel, John N. "Eels and the Electric Chair." New Republic, 25:127-9 (December 29, 1920).

. "Four Radicals." American Mercury,

25:441-7

(April,

1932).

BIBLIOGRAPHY

569

Bent, Silas. "Checking up the Confession." Outlook and Independent, 150:1071-5 (October 31, 1928). . "Checking up the Vanzetti Story; an Interview with the Chief Counsel for the Defense." Outlook and Independent, 150:1099-1101 (November 7, 1948). Bernus, Pierre. "L'exicution de Sacco et de Vanzetti." Journal des debats, 342:339-40 (August 26, 1927). Besinnung und Aufbruch. Year 1, no. 5 (September, 1929). Published in Berlin by Willi Jodau. Most of this issue is devoted to Sacco-Vanzetti material. Bliven, Bruce. "In Dedham Jail." New Republic, 51:120-1 (June 22, 1927). Brailsford, Η. N. "America Startles the World; the Exposure of Class-Justice." New Leader, 14:5 (August 12, 1927)Broun, Heywood. "It Seems to Me." Nation, 126:532 (May 9, 1928). The article which led to his being fired by the New York World. Ibid. 127:171 (August «2, 1928). Buckner, Emory R. [Letter.] Netn Republic, 52:212 (October 12, 1927). CONGRESSIONAL RECORD, 64, part 3:3005-27 (February 25, 1923). The Walsh-Sterling debate on Department of Justice activities. Cook, Waldo L. "Forgetting Sacco and Vanzetti." Nation, 129:188-90 (August 21, •929)· "Massachusetts Justice Revalued; the Sacco-Vanzetti Case Twelve Years Later." New Republic, 100:68-9 (August 2¾, 1939). Goolidge, Calvin. "Enemies of the Republic." Delineator, 98 (June, 1921, pp. 4, 5, 66); (July, 1921, pp. 10-11, 38-9); 99 (August, 1921, pp. 10-11, 42). "A Costly Vindication." Christian Century, 44:1037-8 (September 8, 1927). Cowley, Malcolm. "Echoes of a Crime." New Republic, 134:79 (August 28, 1935). Dewey, John. "Psychology and Justice." New Republic, 53:9-12 (November 23, 1927). Dielo Truda [Daily Worker]. Nos. 26, 27, 28 (July, August, September, 1927). Organ of the Russian anarchist-communists. University of Michigan Library. Dos Passos, John. "An Open Letter to ,President Lowell." Nation, 125:176 (August 24, 1927). The letter is dated August 9. Drown, Edward S. "The Sacco and Vanzetti Case; Why I Interceded with Governor Fuller." Churchman, 136 (October 2g, 1927, pp. 10-1). "A Dying City." Lantern, 3, no. 2 (August, 1929, p. 2). Ehrmann, Herbert B. "Three Men—Thompson, Frankfurter, and Vanzetti." Unity, 99:223-4 (August 16, 1937). "The Electric Chair." New Statesman, 29:612 (August 27, 1927). Ernst, Morris L. "The Caise o£ Sacco and Vanzetti." Yale Law Journal, 36:1192-4 (June, 1927). A review of Felix Frankfurter's book by the same title. "Deception According to Law." Nation, 124:602-3 (June 1, 1927). This article was submitted for comment to a group of lawyers; for their reply see below, "Shall Prosecutors . . ." Evans, Elizabeth G. "A New England Mooney Case." La Follette's Magazine, 19:120 (August, 1921)· "Sacco and Vanzetti." Survey, 56:364-5, 393 (June 15, 1926). Ewer, W. N. "Judicial Murder in the United States." Socialist Review, August, 1926, pp. 8-11. France, Anatole. [Letter.] Nation, 113:586 (November 23, 1921). The letter is dated October 31. Both the original French and a translation are given. Frankfurter, Felix. "L'affaire Sacco-Vanzetti." Les cahiers des droits de t'homme, 27:i7S"5 (April 25, 1927). HWLD. "Case of Sacco and Vanzetti." Atlantic Monthly, 139:409-32 (March, 1927). Franklin, Fabian. "The Logic of the Sacco-Vanzetti Case." McNaught's Monthly, 7:165-8 (June, 1927).

57°

BIBLIOGRAPHY

Fuller, Alvan Τ. "Extension of Remarks [on House resolution denying Victor Berger his seat]. CONGRESSIONAL RECORD, 58, part 9:9148-9 (November 10, 1919). Fuller, Alvan T., and Schuyler Patterson. "Why I Believe in Capital Punishment" [interview article]. Success Magazine, 10:15-6, 94 (December, 1926). Gerig, Ο. B. "These Misled Ministers; Overheard in a Theological Library." World Tomorrow, 11:272 (June, 1928). Goodwin, Wilder. "The Law's Delay." Liberty, 4 (October 22, 1927, pp. 21, 23-4, 27). "Governor Fuller in Berlin." Living Age, 339:330 (November, 1930). Granich, Irwin. "Anarchists in Plymouth." Revolt, 1, no. 5 (February 5, 1916, p. 7). This publication was suppressed in the following month. Guernut, Henri. "L'affaire Sacco et Vanzetti." Les eahiers des droits de I'homme, 27:391-406 (August, 1927). HWLD. [Hayes, Ellen.] ["Earth Talk."] The Relay, 4, no. 6 (September, 1927, pp. 1, 2). HWLD. Herrick, Robert. "The Ten Commandments, Again." New Republic, 23:90-1 (June 16, 1920). Herring, Hubert C. "Have Faith in Massachusetts." World Tomorrow, 10:413-6 (October, 1927). Hill, Creighton. "impasse." [Sacco-Vanzetti Defense Committee] Official Bulletin, 1, no. 19 (August, 1930, pp. 5-6). Holladay, Paula. "I Paraded." New Republic, 52:230-5 (October 19, 1927). Holmes, John H. "Sacco-Vanzetti—1927-1937." Unity, 99:217-8 (August 16, 1937). Huebsch, B. W. "Sacco and Vanzetti." Saturday Review, 147:638-9 (May 11, 1929). [The same, as] "A Letter of Import." Lantern, 2, no. 3 (August, 1929, pp. 25-6). Mr. Huebsch explains some changes which were made in the second printing of The Letters . . . He also gives Philip Stong's letter which explains the cir­ cumstances under which that reporter wrote down Vanzetti's "If it had not been for these thing . . ." statement. H[utchins], R[obert] M. "Cross-Examination to Impeach." Yale Law Journal, 36:38490 (January, 1927). Independent. [Leading editorial.] 119:217-9 (September 3, 1927). Jackson, Gardner. [Article on Bosco-Guadagni episode.] Harvard Progressive [organ of the Harvard University Socialist Club], 1, no. 1 (1929). HWLD. "Funeral Speech." [Sacco-Vanzetti Defense Committee] Official Bulletin, 1, no. 15 (September, 1927, pp. 1, 3). "Mary Donovan told me [Miss Agnes Inglis] in 1932, . . . that, while she read it, Gardner Jackson wrote the speech the night before the funeral." It was read on August 28. . "The Power of Two Ghosts." Nation, 129:190-1 (August 21, 1929). Concerns the testimony given by William G. Thompson at the Harry Canter trial relat­ ing to Thompson's plea to Fuller that he hold public hearings on the SaccoVanzetti case. "Sacco and Vanzetti." Nation, 127:172-6 (August 22, 1928). "Sacco and Vanzetti Ghosts, 1928-1929." Lantern, g, no. 3 (August, 1929, pp. '3-4)Jastrow, Joseph. "Our Prejudices; Psychological Analysis of Replies to Edna St. V. Millay." Outlook, 147:364-5, 373 (November 23, 1927). "Jugement et mort de Sacco et de Vanzetti." Europe, November, 1930, pp. 305-20. NN. Gives a condensed version of the statements by Sacco and Vanzetti at the time of sentencing, and the full text of "Vanzetti's Last Statement" by William G. Thompson. Kallen, Horace M. "Fear, Freedom, and Massachusetts." American Mercury, 18:281g2 (November, 1929).

BIBLIOGRAPHY Kelley, Dr. Τ. J. "Force and Reason at Grips." Lantern,

571 2,

no. a (July,

1929,

pp.

21-2).

Kellogg, Paul U. "One Show o£ Hands." Survey, 38:533-5, 571 (August 15, 1927). The Lantern. The chronology of the issues is as follows: I. no. 1 October 28, 1927. 2 December, 1927. S January, 1928. 4 February, 1928. 5-6 March-April, 1928. 7-8 July, August, 1928. 9 October, 1928. 10 December, 1928. 11 January-February, 1929. II. no. 1 April, May, June, 1929. 2 July, 1929. 3 August, 1929. "Lawless Enforcement of Law." Harvard Law Review, 33:956-60 (May, 1920). Lowell, Abbott L. "The Judicial Use of Torture." Harvard Law Review, 11:220-33 (November, 1897); 290-300 (December, 1897). [Letter.] Harvard Progressive [organ of the Harvard University Socialist Club], 1, no. 2 (April 10, 1929, p. 1). HWLD. A reply to a Mr. Cohen on the BoscoGuadagni episode. Lyons, Eugene. "Another Frame-Up Exposed." Free Voice, 1, no. 3 (December 1, 1920, p. 1). This publication was the organ of the International Workers in the Amalgamated Food Industries. This is the earliest known article on the case. University of Michigan Library. . "Italians in American Courts." Survey, 47:237-8 (November 12, 1921). . "The Sacco-Vanzetti Verdict and Americans-to-Be." Unity, 88:28-0 /Septem ber 15, 1921). "Torremaggiore; a Glimpse of Sacco's Birthplace." World Tomorrow, 4:2735 (September, 1921). "The Massachusetts Murder." World Tomorrow, 10:355 (September, 1927). McCausland, Elizabeth. "New England Editor; Cook of the Springfield Republican." Survey Graphic, 28:482-4 (August, 1939). McCormick, Charles T. "Some Observations upon the Opinion Rule and Expert Testimony." Texas Law Review, 23:109-36 (February, 1946). Meiklejohn, Alexander. "In Memoriam; an Address Delivered in Boston on the Anniversary of the Execution of Sacco and Vanzetti." New Republic, 56:69-71 (September 5, 1928). Morgan, Edmund M. [A Review of Herbert Ehrmann's The Untried Caie.] Harvard Law Review, 47:538-47 (January, 1934). The Nation [London]. [Chief articles.] 41:467-9 (July 9, 1927); 628-9 (August 13, 1 S i D' 7 21 (September 3, 1927); 741, 743 (September 10, 1927); 800 (September 24, 1927); 827-8 (October 1, 1927). New Statesman. [Editorial.] 29:609 (August 27, 1927). Norwin, W. P. "The Notorious Case of Sacco and Vanzetti." Haldeman-Julius Monthly, 7 (May, 1928, pp. 105-10); 8 (June, 1928, pp. 49-59; July, 1928, pp. 6877: August, 1928, pp. 70-4). O'Higgins, Harvey. "The Nervous American." American Mercury, 16:257-63 (March, >929)· O'Sheel, Shaemas. "The Thing; Reactions of a Realist." New Republic, 52:61-3 (September 7, 1927). Outlook. [Chief articles.] 146:530-1 (August 24, 1927); 146:562 (August 31, 1927); 147:16-7 (September 7, 1927).

57«

BIBLIOGRAPHY

Outlook and Independent. 150 (most of the issue of October 31, 1928, and much of the issue of November 7, 1928, are devoted to the Silva confession and other aspects of the Sacco-Vanzetti case). "Our Communist Martyrs Disturbing the World." Literary Digest, 71 (December 10, 1921. pp. 34-6, 38-40, 42). "Penalties of the Sacco-Vanzetti Execution." New Republic, 52:57-9 (September 7, J 927)"Radicals." Time , 10 (August 29, 1927, pp. 9-10). Raymond, Allen. "The Saceo-Vanzetti Trial." Outlook [London], 60:243-4 (August 20, 1927).

"Reaffirming the Sacco-Vanzetti Verdict." Literary Digest, 94 (August 20, 1927, pp. 5-7)· Review of Reviews, 76:227-34 (September, 1927). Riddell, W[illiam] R. "The Sacco-Vanzetti Case from a Canadian Jurist's Stand­ point." American Bar Association Journal, 13:683-94 (December, 1927). Ibid, [condensed version]. Current History, 27:839-42 (March, 1928). Road to Freedom; a Periodical of Anarchist Thought, Work and Literature. Pub­ lished in New York by the International Anarchist Group. Numerous refer­ ences to the Sacco-Vanzetti case throughout the 1921-1927 period. Rudnick, Frank. "Sacco and Vanzetti." Red Boston, 1, no. 1 (September, 1932, pp. 16, 20). HWLD. This mimeographed magazine was the organ of the John Reed Club of Harvard University. "Sacco et Vanzetti." Plus Lain, no. 30, September, 1927, p. 1. University of Michi­ gan Library. "Sacco-Vanzetti—a Call for Action." Nation, 127:168 (August 22, 1928). The Sacco-Vametti Dawn. See above, Section II, A. Seibel, George. "Notes for a Comic History." American Mercury, 12:162-70 (October, 1927)"Shall Prosecutors Conceal Facts?" Nation, 184:628-30 (June 8, 1927). Shanks, Edward. "An American Tragedy." Saturday Review, 147:435 (March 30, 1929). A review of The Letters . • . Shields, Arthur. "The Evidence Doesn't Count." Locomotive Engineers Journal, 58:816-8 (November, 1924). —-. "The War on the Alien in New England." One Big Union Monthly, 3:41-3 (January, J9¾j). University of Michigan Library. Skinner, Clarence R. "The Sacco-Vanzetti Case." Survey, 46:431-2 (June 25, 1921) Ibid., 46:584 (August 16, 1921). "Some Readers' Comments on 'Fear.'" Outlook, 147:384 (November 23, 1927). The Spectator [London]. [Chief articles.] 137:849-50 (November 13, 1926); 139:245 (August 13, 1927); 314-5 (August 27, 1927); 384 (September 10, 1927); 420-2 (September 17, 1927); 462 (September 24, 1927). Some of these references are to letters which give an interesting view of public opinion. Stark, Louis. "The Grounds for Doubt." Survey, 59:38-41, 55.7 (October 1, 1927). Stern, Samuel R. "On the Sacco-Vanzetti Case; from a Lawyer's Standpoint." Outlook, 147:17-8 (September 7, 1927). Sutherland, Sidney. "The Mystery of Sacco and Vanzetti." Liberty, 7 (March 8, 1930, PP(March 15, 1930, pp. 38-40, 45-8). Thompson, William G. "Vanzetti's Last Statement." Atlantic Monthly, 141:254-7 (February, 1928). —— Ibid. Nation [London], 42:839-40 (March 10, 1928). "A Trial of the Law." Outlook, 146:562 (August 31, 1927). Unity, 99:213-28 (August 16, 1937). A Sacco-Vanzetti memorial issue. Van Amburgh, Charles J., and Fred H. Thompson. "The Hidden Drama of Saceo and Vanzetti." True Detective Mysteries, 24, no. 1 (April, 1935, PP· 7 *3· 79-

BIBLIOGRAPHY

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82); no. 2 (May, 1935, pp. 50-3, 106-8, m-2); no. 3 (June, 1935, pp. 32-7, 108-10, 112, 114); no. 4 (July, 1935, pp. 50-3, 83-6); no. 5 (August, 1935, pp. 50-3, 100-3); no. 6 (September, 1935, pp. 58-61, 115-6, 118-20). MH. Vanzetti, Bartolomeo. [Letter to Henry Ford.] [Sacco-Vanzetti Defense Committee] Official Bulletin, 1, no. 18 ([August, 1928], p. 6). "To the Members of the Student Sacco-Vanzetti Committee." Sacco-Vanzetti Dawn, 1, no. 1 (June 11, 1927, p. 2). . "Vision." See above, Besinnung . . . A poem said to have been written by Vanzetti in prison; of doubtful authenticity. Ward, Harry F. "Religion and Justice." Christian Century, 46:194-6 (February 7, 1929)·

Warner, Arthur. "Sacco-Vanzetti—a Reasonable Doubt." Nation, 113:343-5 (Septem­ ber 28, ig2i). "Was Vanzetti Guilty?" Churchman, 138. (November 10, ig28, p. 8). "We Never Forget." General Defense Bulletin, August, 1936, pp. 1, 3. GLJ. "Why Boston Wishes to Hang Sacco and Vanzetti." Netu Republic, 51:4-6 (May 25, 1927)· "World Opinion on Sacco and Vanzetti." Nation, 125:174 (August 24, 1927). Quota­ tions from eleven foreign newspapers dated August 4 to 13, 1927. IV. NEWSPAPER MATERIAL.

Albert, Charles. [Letter.] Boston Herald, May 10, 1927. "An Appeal to Mr. Coolidge." St. Louis Post-Despatch, August 13, 1927. "Back to Normalcy [an editorial]." Boston Herald, August 23, 1927. Brine, Fred R. "Contradicts Story Clearing Vanzetti in Bridgewater Crime." Boston Herald, January 13, 1929. Brockton Enterprise [news story], July 15, 1921. Broun, Heywood. See above, Section II, A. Bullard, F. L. [Special article.] New York Times, June 26, 1927. Corcos, Fernand. "Sacco et Vanzetti sont innocents; IiWrons IeSl" [Le soirTJ, July 23, 1927. HWLD. Daily Herald [London], The chief articles and editorials are under the following dates: March 22, 1922; April 7, 1927; July 26, 1927; August 5 (three items), 6, 8, 10, 11, 12, 14, 20, 23, 24, 25, and 30, 1927; September 17, 1927. Frankfurter, Felix. See below, under J. H. Wigmore. French newspapers. A collection of clippings from several French newspapers; Uni­ versity of Michigan Library. Gold, Michael. " 'It's a Fine Day'—Said Governor Fuller." Daily Worker, August 27, 1927 (Magazine Section, pp. 1-2). Goodwin, Frank A. "Sacco-Vanzetti and the Red Peril." [The speech at Lawrence.] Boston Traveller, June 30, 1927. Guernut, Henri. "L'affaire . . ." [see Section IXI]. Le soir. The article was serialized over a number of issues; the only one seen is no. 12, in the issue of August 6, 1927. HWLD. Hocking, William E. [Letter.] Boston Evening Transcript, April [28?], 1927. The letter is dated April 27, 1927. Howie, Wendell D. "How the Sacco Bullet Was Fingerprinted." Boston Evening Transcript, August 9, 1927. A reply by William G. Thompson was printed in the same newspaper on August 10, 1927. Industrial Solidarity. Numerous articles throughout the period of the case. Jackson, Gardner. "Were Sacco and Vanzetti Victims ot Official Prejudice and Malice." Portland Evening News, April 23, 1929.

574

BIBLIOGRAPHY

Journal de Geneve, July si, 1927. Quoted in New Republic, 5:324 (August 17, 1924). "Der Justizmord vollzogen!" Vorwarts [organ of die German Social-Democratic Party], August 23, 1927. Langerock, Hubert. "Wider Aspects of the Sacco-Vanzetti Case." Industrial Soli­ darity, September 7 and 14, 1927. Lilly, Joseph. "Free Speech and Press." Brooklyn Daily Eagle, May 8-14, 1927. Sinclair, Upton. [Letter to Governor Fuller.] In an unnamed and undated news­ paper clipping of about June, 1927. MH. Tucker, Benjamin R. [Letter to Governor Fuller,] New Bedford [Massachusetts] Standard, August 26, 1927. Vanzetti, Bartolomeo. [Poem.] New Yorker V olkszeitung, August 21, 1927. Of un­ certain authenticity. For letters of April 17, May 22, and August 4, 1927, printed in newspapers, see below, Section V, under Dana. [Letter to H. W. L. Dana, n.d.] L'Humaniti, August 6, 1927. Wardner, G. W. [Letter.] Boston Herald, August 16, 1927. The letter is dated Au­ gust 14, 1927. Wells, H. G. "One of the Most Intriguing Phenomena . . ." A newspaper clipping penciled: "Outrages in Defense of Order; the Proposed Murder of Two Ameri­ can Radicals. 5/6/27. Pub. London Sunday Express, 6/5/27." MH. "Wells Speaks Some Plain Words to Us." New York Times, October 16, 1927. "We Submit—" [an editorial]. Boston Herald, October 25, 1926. This editorial is printed as an appendix to Felix Frankfurter, The Case of Sacco and Vanzetti. White, William A. [Letter to Governor Fuller.] Boston Herald, June 7, 1927. Wigmore, J. H. "J. H. Wigmore Answers Frankfurter Attack on Sacco-Vanzetti Ver­ dict." Boston Evening Transcript, April 25, 1927. "Professor Frankfurter Re­ plies to Dean Wigmore." Ibid., April 26, 1927. "Wigmore Replies to Frank­ furter in Sacco-Vanzetti Controversy." Ibid., May 10, 1927. "Frankfurter Denies That He Has Been Sacco-Vanzetti Counsel." Ibid., May n, 1927. Wise, Rabbi Stephen S. "Law Versus Justice; a Challenge to America." Boston Herald, [May 2? 1927.] The World [New York], Chief editorials under the following dates: August 5, 6, 9, 10, ii, 12, 13, 17, 19, 20, 22, 1927. A series of three special articles: September 11, 12, 13, 1927. V. MANUSCRIPT MATERIAL. [Bent, Silas?] A five-page typescript reply to the Fred R. Brine article; see above, Section IV. GLJ. Dana, Henry W. L. A collection of holograph letters from Vanzetti to Dana: [A memorandum letter of about November, 1921] December 2, 1921 April 17, 1927 April 17, 1927 (in Italian) April 27, 1927 May 22, 1927 June 20, 1927 August 4, 1927 The letters of April 27, May 22, and August 4, 1927, also exist in unnamed news­ paper clippings. Both the holograph and printed letters are in HWLD. Ehrmann, Herbert B. A letter of August 29, 1945, to G. Louis Joughin. GLJ. A letter of December 9, 1946, to Edmund M. Morgan. In the possession of Mr. Morgan.

BIBLIOGRAPHY

575

Galsworthy, John. Holograph letter (no addressee) of June 9, 1927. HWLD. Jackson, Gardner. "Funeral Speech" of August 28, 1927. Typescript. GLJ. Kallert, Horace M. "The Two Anarchisms; an Address in Memory of Nicola Sacco and Bartolomeo Vanzetti." Typescript copy with note: "Delivered in Boston, Mass., August 23, 1928, and the basis of a warrant for the arrest of the speaker on the charge of blasphemy. The warrant was withdrawn by the authorities before the speaker could return to Boston to accept service. The address was made extempore. The stenographic record has been somewhat revised for pub­ lication." GLJ. Lopez, Frank. Letters of various dates. MH. Millard, John C. "Massachusetts 1920-7; Martyrs Made to Order." December, 1939. Bliss prize essay—Harvard University, 1940. Seven typescript pages and bibliog­ raphy. MH. Mischke, George M. Ten letters in an exchange of correspondence with Frank A. Goodwin, June 21-August 29, 1927. MH. Morrison, Samuel E. Letter to Henry W. L. Dana of April 12, 1927. HWLD. [Musmanno, Michael A.] Incomplete letter, addressee unknown, of about Septem­ ber, 1927. University of Michigan Library. Rowley, W. E. "The Tragedy of Two Men and a Nation." Typescript of an unpub­ lished article, written in Cambridge, 1940. In the possession of Mr. Rowley. Sacco, Nicola. Letter [to Havel?] of April 14, 1925. Typed copy in University of Michigan Library. . Letter to "Dear Havel and Comrades" of December 22, 1925. Typed copy in University of Michigan Library. Letter to "Dear Comrade" of April 3, 1927. University of Michigan Library. Letters which form in large part the basis of the published collection; holo­ graph and typed copies. MH. Sacco, Nicola, and Bartolomeo Vanzetti. Letter to the delegates of the Amalgamated Clothing Workers, of May 5, 1922. Typed, signed. University of Michigan Li­ brary. Almost certainly not by Sacco and Vanzetti. Shaw, G. B. Letter to Reginald Stamp of June 2, 1927. HWLD. Underhill, Charles L. Letter to Henry W. L. Dana of June 22, 1926. HWLD. Mr. Dana had protested a speech by Underhill against radicals (see CONGRESSIONAL RECORD 67, part 10:11,538-40, June 18, 1926). University of Michigan Library. Miscellaneous letters by an anarchist committee, Aldino Felicani, and Gardner Jackson; 1924, 1926, 1927, 1928. Vanzetti, Bartolomeo. Letters. See above, under Dana. Letter to Rose [Pesotta?] of May 22, 1927. Typed copy in the University of Michigan Library. Letters which form in large part the basis of the published collection; holo­ graph and typed copies. MH. Translation o£ Proudhon's War and Peace. The holograph manuscript of 300 pages is in NN. Walled in This Tomb. Supplementary typed material on this pamphlet was sent by John N. Beffel to the University of Michigan Library. Wells, H. G. Letter, addressee unknown, n.d. HWLD.

BIBLIOGRAPHY

576

VI. PICTORIAL MATERIAL.

Armband. Black printing on red felt. REMEMBER!

Justice Crucified August «2, 1927 University of Texas Library. Borglum, Gutzon. See below, under Life. Death masks. These were made by Antonio Salemmi, of New York; their present place is unknown. Ehrmann, Herbert B. The Untried Case. Photographs of Vanzetti, Sacco, Joe Morelii, Mancini, and Medeiros. Ellis, [Fred]. See above. Section II, A. Gropper, William. Cartoon. New Masses, 3, no. 4 (May, 1927). "Guilty." Friday, 1 (December 6, 1940, pp. 8-11). A picture story. Independent. Photographs. 118:607-10 (June n, 1927). Life. Picture of the Borglum plaque; picture of Governor Hurley refusing the plaque. 3 (September 6, »937, p. 24). Literary Digest. Photographs. (April 23, 1927, pp. 5, 6). Moving pictures. Films of the funeral were shown in Boston at 6 Byron Street on May 24,1931, under the sponsorship of the Socialist Party of Boston and others. Present location unknown. New York Herald Tribune. Photographs. Various issues in August, 1927. "The 'Pic' Album of Notorious American Murders; No. IV the Trial and Execu­ tion of Sacco and Vanzetti." Pie, 2, no. 2 (February 8, 1938, pp. 39-43). Plaque. See above, under Life. Robinson, Boardman. Cartoon. Square Deal, 1:32 (September, 1926). University of Michigan Library. "Sacco and Vanzetti Must Not Die!" A poster published by the International Labor Defense, n.d. HWLD. Sacco, Nicola. Photograph. GLJ. Sacco, Nicola, and Bartolomeo Vanzetti. The Letters . . . Photographs are found only in the ig«8 Viking Press edition. Sacco-Vanzetti Defense Committee. The Story of . • See above, Section II, B. Shahn, Ben. "The Passion of Sacco and Vanzetti." Twenty-three gouaches shown at the Downtown Gallery, April 5-17, 1932. See The Magazine of Art (April, >944)·

Shields, Art[hur]. Are They Doomedt Photographs. See above. Section II, A. Vanzetti, Bartolomeo. Photograph. GLJ. VII. VERSE INDEX.

The authors, and their poems, are presented in alphabetical order. The known places of publication are given after each tide, but no special effort has been made to track down all such places. Three abbreviations are used for the most common sources; they are: H The SaccO'Vanzetti Anthology of Verse. Ed. by Henry Harrison. New York: Harrison, 1927, pp. 1-32.

BIBLIOGRAPHY

577

T-C America Arraigned! Ed. by Lucia Trent and Ralph Cheyney. New York: Dean, 1928, pp. 1-95. NL "Sacco, Vanzetti, and the Poets," in the New Leader, August 13, 20, 27, September 3, 1927. A foreprinting of some ol the material in the previous item; some material not published elsewhere. Allinson, Brent Dow. "For the Honor of Massachusetts." La Follette's Magazine, 19: iso (August, 1927); Locomotive Engineers Journal, 61:597 (August, 1927); as "Sacco and Vanzetti—Dead!" in Unity, 91:323 (August 22, 1927). Bauer, Hans. "Ballade vom Gouvernor Fuller." New Yorker Volhszeitung, August 22, 1927. Berenberg, David P. "For the 10th of July." NL, August 13, as "For the 10th of August," in H. "For the 23rd of August." T-C. "Sing, Poet, Singl" H. "To Bartolomeo Vanzetti." H. Blankfort, Seymour M. "A Final Appeal." T-C. Borghi, Armando. "Half an Hour with Sacco." Translated into English. Road to Freedom, III, no. 11, pp. 1-2 (June, 1927). Burns, Vincent G. "Who Are the Criminals?" T-C. Bynner, Witter. "The Condemned." New Republic, 51:329 (August 17, 1927): handleaf reprint from the New Republic, n.d.; T-C; Lantern, II, no. 3, p. 14 (August, >929)·

"Once More, O Commonwealth!" New Republic, 52:74 (September 7, 1927); T-C; Bulletin, I, no. 19, p. 9 (August, 1930). Carew, Harold D. "Justice Is Dead." T-C; General Defense Bulletin, p. 3 (August, 1936)· Cato. "Ballade of the Crime Wave." Lantern, II, no. 2, p. 20 (July, 1929). Cheyney, Ralph. "From a Long Poem." H. Generally similar to "Rouse, Song!" in NL1 August 27. "In Memoriam Us, You Who Live (to Sacco and Vanzetti)." T-C; Unity, 99. 218 (August 16, 1937). "Red Flag." T-C. "To Governor Fuller." H. "To Governor Fuller and His Advisory Council." T-C. , "To Sacco and Vanzetti." Road to Freedom, IV, no. 2, p. 5 (September, 1927); H; T-C; NL, August 13. A Citizen. "August 10, 1927 (Date set to electrocute Sacco and Vanzetti)." Cardboard slip, dated August 11, 1927; University of Texas Library. Cowley, Malcolm. "For St. Bartholomew's Day." Nation, 127:175 (August 22, 1928). Cullen, Countee P. "Not Sacco and Vanzetti." T-C; NL1 August 27; Lantern, II, no 3, p. 14 (August, 1929). Davies, Mary C. "I Am the Chair." H. "If." H. "The Rulers." H. "Sob Stuff." H. "Their Weapon." H; T-C. de Ford, Miriam A. "After the Murder." T-C. Del Vechio, Thomas. "Chairs." H. "Consolation." H. "The Day After." H. Deutsch, Babette. "Of Sacco and Vanzetti." New Republic, 52:16 (August 24, 1927): T-C; Fire for the Night, New York: Cape, 1930. DeWitt, S. A. "Musings on Two Men in Dedham." H; T-C; NL, August 27.

57«

BIBLIOGRAPHY

DeWitt, S. A. "Sacco and Vanzetti." NL, August 27. Dobson, David I. "Afterwards." H. . Liberty's Plight." H. "We Have Not Failed." H. Dos Passos, John. "They Are Dead Now—" New Masses, 3 (October, 1927, p. 24); T-C. Drescher, Martin. "Und nochl" Besinnung and Aufbruch, Jahr 1, nr. 5, p. 3 (May, 1929)·

Dudley, Dorothy. "August Clippings, 1921-1927." Lantern, II, no. 3, p. 12 (August, 1929). Emory, William C. "Another Pilate." T-C. Feinstein, Martin. "Sacco and Vanzetti." T-C. Ficke, Arthur D. "Massachusetts Thanksgiving 1927." Mountain Against Mountain, Garden City: Doubleday, 1929, p. 60. "Prayer in Massachusetts." T-C; Lantern, II, no. 3, p. 22 (August, 1929). (as "A. D. F."). "To a Former Governor." New York Times, August 23, 1932. Fletcher, John G. "To Sacco and Vanzetti." T-C; NL, August 27. Friedlaender, V. H. "Sacco and Vanzetti (The Night After)." Nation [London], 41:721 (September 3, 1927). Ginsberg, Louis. "To Sacco and Vanzetti." "Sacco and Vanzetti, you ransom. . . ." H. "To Sacco and Vanzetti." "The vision of your love . . ." H; T-C; NL, Au gust 27. "Trumpets and Drum." T-C. Goodenough, Carolyn Leonard. "To Sacco and Vanzetti." T-C. Harlow, S. Ralph. "Lest We forget." T-C. Harrison, Henry. "Nonchalantly." H. . "Two Men." H. Hartsock, Ernst. "The New Salome." T-C; NL, August 13. Holmes, John Haynes. "The Ballad of Charlestown Jail." T-C; NL, September 3 Hunt, Alice R. "Sacco and Vanzetti." T-C. Inge, Benson. "To the Men of Justice." H. Kassvan, Israel. Eight poems by this writer appeared in the New Yorker Volkszeitung in 1927; the titles are given here with the dates, in chronological order. "All-Menschliches." April 3. "Solang!" August 5. "Aus dem Totenhausl" August 7. "Amerikanische Bartholomaus-Nacht." August 24. "Memento." August «8. "An der Bahre in Boston." August 30. "Die nur Zuschauer." September 1. "Bomben." September 9. Kernan, Mary P. "Death Watch (Midnight, August 22nd, 1927)." T-C. Kreymborg, Alfred. "August 22nd: A Red-Letter Day." T-C. Lisa. "A Jest." Leaflet, Sacco and Vanzetti Soon to Learn Fate. No place, no pub­ lisher, no date. The leaflet purports to be a reprint of an article in the New York Times; see under title of leaflet in this bibliography, II, A. University of Michigan Library. Lufton, James U. "To Judge Webster Thayer." H. MacGillivray, Rina. "Justice." NL, August 27. Magill, A. B. "Murder at Midnight." Daily Worker, August 27, 1927; T-C. Manross, W. Wilson. "Sacco-Vanzetti." T-C. Marks, Jeannette. "Two Crucified." T-C; NL, September 3.

BIBLIOGRAPHY

579

Meyers, Harry. "Our Murdered Comrades." Daily Worker, August 27. Millay, Edna St. V. "Fear." Outlook and Independent, 147:293-5, 310 (November 9, 1927). As a reprint distributed by the Sacco-Vanzetti National League; n.d. "Justice Denied in Massachusetts." New York World, August 22, 1927; T-C; Buck in the Snow, New York: Harper, 1928; Collected Lyrics, New York: Harper, 1943. "Two Sonnets in Memory (Bartolomeo Vanzetti and Nicolo [sic] Sacco, Exe­ cuted August 23, 1927)." I: "As men have loved . . ." II: "Where can the heart . . ." New Republic, 64:34 (August 27, 1930). Millay, Kathleen. "Bunker Hill August 1927." The Hermit Thrush. New York: Liveright, 1929. "Dirge." Nation, 125:340 (October 5, 1927); The Hermit Thrush. "Elegy." Nation, 125:340 (October 5, 1927); The Hermit Thrush. "Grist." T-C. "The Last Thanksgiving Massachusetts 1927." The Hermit Thrush. "Law." The Hermit Thrush. "Wake." Nation, 125:340 (October 5, 1927); The Hermit Thrush. MosktHvil?, Nicholas. "Jesus also Sinned." T-C. NL, August 20. Musser, Benjamin. "Sacco-Vanzetti." H (42 lines); T-C and NL, August 27 (12 lines). Oatman, Miriam E. "The Meeting." T-C. Pater, Mary. "The Last Day." H. "Mrs. Sacco." H. . "Pride." H. Plotkin, David G. "Demonstration." H. "Invocation." H. "We Have Been Wronged." H. "The Wrath to Come." NL, August 27. Potamkin, Harry Alan. "The Infamous Ritual." T-C; NL, August 27. Powers, James H. "Sacco-Vanzetti, 1920-1927." Bulletin, I, no. 17, [February 22, 1928?]. Press, Max. "To Gov. Alvan T. Fuller (August 23, 1927)." T-C. Reely, Mary K. "Prayer for Remembrance of Sacco and Vanzetti." La Follette's Magazine, 19:138 (September, 1927). Reich, Henry. "Dead—They Live!" Daily Worker, August 24, 1927; T-C. "The New Golgotha." H. "On the Removal of Sacco and Vanzetti to Charlestown Prison, July 1, 1927." H; NL, August 20. Rella, Ettore. "A Half Hour Before the Execution of Sacco and Vanzetti." T-C. Ridge, Lola. "Three Men Die." Dance of Fire, New York: Smith and Haas, 1935. "Two in the Death House." T-C; NL, August ig. Robbins, Matilda. "On the Conviction of Sacco and Vanzetti July 14, 1921, at Dedham, Mass." Leaflet marked "Reprinted from the New York Call Maga­ zine, issue of August 14, 1921." New York: no publisher, n.d. Twenty of the thirty-nine lines exist in typescript copy in the University of Michigan Library, marked "Robbins (Rabinovitch), Matilda; Tom Mooney's Monthly, July, 1921," This item may be the earliest Sacco-Vanzetti verse. Rohrs, Ernst. "Elf Tage noch." New Yorker Volkszeitung, August 13, 1927. Root, E. Merrill. "Eucharist." Lost Eden and Other Poems, New York: Unicorn, 1927; H. "Fiery Cross." Bow of Burning Gold, Chicago: Packard, 1929. "Flames." Lost Eden . . . ; H. "On Hearing the News That Governor Fuller Sanctioned the Murder of Sacco and Vanzetti." T-C.

580

BIBLIOGRAPHY

Root, Ε. Merrill. "On the News of the Death of Saceo and Vanzetti." Bow of Burn­ ing Gold. "Sacco and Vanzetti." T-C; NL1 August 13. "Sleep-Walkers." Lost Eden . . . ; H. Rorty, James. "Gentlemen of Massachusetts." New Masses, 3 (September, 1927); T-C. Rose, Blanche W. "Prisoners." T-C. Sassoon, Siegfried. "I Accuse the Rich." H. Seaver, Edwin. "Now Death Is King." T-C. Senator. "Peddler." New York World, September 5, 1927. Seymour, Jim. "Sacco and Vanzetti." Industrial Pioneer, 1 (December, 1921, p. 21). Shipley, Joseph T. "For a Land That Allows Sacco and Vanzetti to Die." T-C. Siegrist, Mary. "Tall Winds Shall Walk for Sacco and Vanzetti." T-C; NL, August 20. Simmons, Laura. "The Way." T-C. Spicer, Alice N. "Sacco-Vanzetti." T-C. Squires, Edith L. "Massachusetts, 1667-1927." T-C. Tiger, Theobald, "7, 7." New Yorker Polkszeitung, September 14, 1927. Titzell, Josiah. "Harvest." T-C. Trent, Lucia. "Failures." H. "General Strikel" H. "How Your World Trembles." H; T-C; NL, August 20, as "To Sacco and Vanzetti." "Hunger, to Sacco and Vanzetti." H. "In the Ever Unfinished Cathedral of Man (to Sacco and Vanzetti, Murdered August 22, 1927)." Unity, 99:219 (August 16, 1937). "To Bishop Lawrence (on His Congratulatory Telegram to Gov. Fuller)." T-C. "To President Lowell and His Commission." T-C; NL, August 13. "To Sacco and Vanzetti, by a Rebel of Anglo-Saxon Descent." Road to Freedom, IV, no. 2, p. 5 (September, 1927); H; NL, August 13. "To the People of Massachusetts." H. Webster, Jr., Bethuel M. "Peddler." T-C. Weinert, Erich. "Herker, hutet euchl" New Yorker Polkszeitung, August 19, 1927. Weiss, Henry G. "Strike." New Yorker Polkszeitung, August 14, 1927. Whitaker, Robert. "The Culprit." T-C. Wolff, David. "August 22, 1927." Proletarian Literature in the United States, an Anthology, New York: International, 1935. Wood, Clement. "Golgotha in Massachusetts." T-C; NL, August 20. Zorn, Gremin. "The Poets and Sacco and Vanzetti." T-C; NL, September 3.

INDEX Allinson, Brent Dow, 380, 517 "For the Honor of Massachusetts," 282, 378, 387-389 author's own comment on, 389 Altgeld, Governor John P., 209 Amalgamated Clothing Workers, 855 Sacco's letter to, sag Amburgh, see Van Amburgh American Association of University Professors, 349, 400 American Chamber o£ Commerce, 279 American Civil Liberties Union, 233, 243. 255, 270, 292- 314 American Express receipt, see Eels American Federation of Labor, 202 resolutions, 228, 242 American Guide Series, Massachusetts: a Guide to Its Places and Its People, 362 American Issues anthology, 361 American Legion, 292 American Playwrigfiu (Flexner), criticism of Anderson, 410, 419 American Society of the River Plate, 279 Anarchists, 253-254 doctrine, 372 Anderson, George W., 25, 215 Anderson, Maxwell, 402-420, 517 criticism of, Flexner, 410, 419 general, 403, 410, 419-420 Elizabeth the Queen, 419 Gods of the Lightning, 321, 363, 393, 402-411, 420 Boston censorship of, 410-411 stage history, 410-411 Joan of Lorraine, 403 Mary of Scotland, 419 Masque of Kings, The, 419 Night over Taos, 419 Winterset, 361, 362, 363, 393, 411-420, 503

Abbott, Leonard, Road to Freedom, 242, 253 Square Deal, 242 Acknowledgments, 517-5 1 8 Action Fran^aise League, 231 Adams, George E., 58 Adams, James Truslow, 334, 339 Addams, Jane, 293 L'Adunata dei refrattan, 555 (note 32) Advance, 228 Adversary system of litigation, 107, 184189 in England, 187-188 Advisory Committee, 298-309, 509 appointed, 23, 301 Bosco-Guadagni episode, 306-308, 309 (fn.), 319 findings, 154-156, 159 Grant examines Thayer for, 305 Hall, appearance before, 152 healings and decision of the, 23, 152, 301 chronology of, 301, 305 conclusions as to, 151-157 investigation, chief lines of, 152-153 Katzmann, appearance before, 152 Lowell, chairman, 302, 309 (fn.) Lowell's domination of, 306, 309 (fn.) opinion on, Daly affidavit, 155 defendants' radicalism, 154 Galliran, 156 Katzmann's cross-examination of Sacco, 122 Medeiros, 156 Packard, 156 Proctor's arrangement with prosecution, 126-131, 155 Thayer's conduct, 155 Order of March 21, 1924, possible effect on, 174 procedure, 152, 304-306 comment on, by Kellogg, 340 report, 23, 152 Lowell's abstract of, 304, 309 (fn.) published, 301 signed, 301 spirit of. Grant's defense of, 305-306 Thayer, appearance before, 152 After Twelve Years (Musmanno), 352-

353

Agitazione, 227, 234 Albers, Dean Homer, 246 Albert, Charles, 270 Allen, Governor Frank G „ 313 Allen, Frederick L., Only Yesterday, 361-362 Allen, Lena, 61 58l

Anderson, Bishop "William F., 256, 281 Andrews, Mrs. Lola R., 60-61, 77, 80, 240 Katzmann on, 132-133 Moore's handling of, 14, 132 Andrews motion, see Fourth supplementary motion "Another Frame-up Exposed" (Lyons), 208, 225 Anvil, defined, 83 Appeals, Supreme Judicial Court, conclusions as to proceedings in, 150-151 Appellate review, in Massachusetts, 17, 366-367, 51s, 537 (note 1) change in procedure, 177 history of, 302

582

INDEX

Are They Doomedf (Shields), 206, 826 Area of the case, 3, 59-60 Arrests, 7-8, 31-32, 69 Arrogni, H., 65 Asch, Nathan, 422, 427 Pay Day, 364, 421, 423-424 Atlantic Monthly, Frankfurter article, 253, 258, 279, 319 Thompson's "Vanzetti's Last Statement" in, 505 "August Clippings, 1921-1927" (Dudley), 381 Automobile, abandoned, 5, 31, 41 Boda's, 7, 31-32, 59, 71 found, 5, 31, 41 theft, 3, 5, 30 Avery, Edward E., 854 Awakening of America's Conscience, 256 "Back to Normalcy," 325 Baker, Newton D „ 318 Bakunin, 498 "Ballad of Charlestown Jail" (Holmes), 383-384 "Ballade of the Crime Wave" (Cato), Ballistic evidence, 6, 14-16, 83-90, 98106, 135-137, 141-142, 365-366, 551 (note 48) technical terms defined, 83 Baltimore Sun, 248, s&g Bandits, missing, 6, 366 Barnes, Harry Elmer, 324, 331 Barry, John, 234 Bas-relief, see Borglum, Gutzon Bastoni, Enrico, 43 Battle, George Gordon, 262 "Battle of Union Square," 255 BeaJi, Fred E., 276-277 Beard, Charles A., 324, 331 Beard, Charles and Mary, Rise of American Civilization, Vanzetti's criticism of, 4Q2 Beck, Adolph, 286 Beffel, John Nicholas, 147, 238, 549550 (note 1) "Eels and the Electric Chair,' 226 Behrtnan, Samuel N., Rain from Heaven, 393, 397-398 Behrsin, Hans, 64 Benchley, Robert, 148 Benkoski, "Steve the Pole," 80 Bent, Silas, 53-54, 318 Berardelli, Alessandro, 6, 31, 58, 73, 74, 83, 84, 90-91 Berardelli, Mrs. Alessandro, 74, 90-91 Berenberg, David P., 382 Berger, Victor M., 210, 218 Berger v. United States, 185 Berkman, Alexander, "Sacco-Vanzetti Case in Russia," 32$ Bernard Clare (Farrell), 364, 48I, 426-427 Bernkopf, Elizabeth R „ 147 Bernsdorff, Count, 245

Bianchi v. Stale, 207 Bibliography, 557-580

Biedenkapp, Fred, 806, 325 Big Money, The, see Dos Passos, John, U.S.A. Billings, Warren K., 356 Black Hand, 76 Bloodstained Trail (Rice and Delaney), 327-328 Bloor, Ella, 312 Blye, Captain, 52 Boda, Mike, 311-32, 39, 40, 41, 45, 75, 76 Overland, see Automobile, Boda's Bombings, 210, 216, 251, 254, 273, 275, 283, 292, 347 Borah, Senator William E., 295, 314 Borghi, Armando, "Half an Hour with Sacco," 380 Borglum, Gutzon, xvi, 349 Bosco-Guadagni episode, 306-308, 309 (fn.), 319 Bostock, J. F„ 62, 73, 84-85, 90-91 Boston (Sinclair), 321, 421, 445-454, 505 Boston American, 240 Boston Athenaeum, 311 Boston Evening Transcript, 264-265, 283, 284, 291, 325 Boston Herald, 277, 291-292, 897, 325, 332 "Back to Normalcy," 325 position on August 4, 1927, 284 "We Submit," 248, 332, 377 Boston Post, 273, 283 Boston Psychopathic Hospital, 464 Boston Transcript, see Boston Evening Transcript Boston Traveller, 311, 332 Bowles, Benjamin F., guard on L. Q. White truck, 26 Pinkerton reports, in, 28 testimony, at Plymouth trial, 34-35 at preliminary hearing, 32 comment on, 43-44 Boyden, Roland W „ 868-269 Boynton, Thomas J., 859 Bradstreet, Howard, 867 BrailsEord, H. N., 289 Braley, Henry H., 18 Brandeis, Louis, 25, 210, 320 Brandeis, Mrs, Louis, 826 Brann, W. C., "the Iconoclast," 207 Branting, George, 266 Brenner, William, 63 Bridgewater assault, 5-6, 86-30 appeal of Vanzetti, from conviction for, 10, 47 Pinkerton investigations, 6, 26-30 preliminary hearing before Judge Thorndike, 32 Bridgewater Hospital for the Criminal Insane, 464 Brine, Fred R „ 55 Brini, Mrs. Alphonsine, 43, 109 Brini, Beltrando, 43, 109, 470 Brini, Le Favre, 109 British Labour Party, 245 British opinion, 237, 289, 313 Brockton Enterprise, 280 Bromley, J., 237

INDEX Brooks, Mrs. Georgina F., testimony of, at Plymouth trial, 37, 54 at preliminary hearing, 35 comment on, 44 Brouillard, Albert L., 34, 42 Broun, Heywood, 287-289, 297, 348, 359360. 377 Brown, R. G., 211 Browning, Ring and the Book, 502 Bruno, Doggy, 53-54 Brussels, labor group opinions, 231 Buck, Paul H., xvi Buckner, Emory R., 262, 318 opinion of Katzmann's cross-examina­ tion of Sacco, 320 Buick, see Automobile Bullard, F. Lauriston, 291 article in New York Times, 262 wins Pulitzer Prize, 248 writes "We Submit," 248, 532, 377 Bullet, fatal, 11, 67-68, 83.90, 98-106, !35-137 Proctor's opinion, 86, 99, 105 Vanzetti's opinion, 87 Bullets, see also Ballistic evidence; Test bullets and shells, 366 pitting of, 87-88 Burgess, Henry S., 50 Burlingham, Charles C., 259, 318, 511 Burns, James E., 15, 88 Burns, Vincent G,, 384 Burns, William J., 55 Bushnell, Robert, 269 Butler, Nicholas M., 258 Bynner, Witter, 381, 382 "Condemned, The," 385 CIO News, 351 Cabot, Richard, 267 California, supreme court of, 356-357 Calkins, Professor Mary, 217 Callahan, Jack, 53-54 Callahan, William J., 58, 109 Campbell, Mrs. Juha, 60, 77 Cannelure, 88 defined, 83 "Cannon-lure," see Cannelure Canter, Harry J., 312, 347 Cap, Sacco's, 6, 11, 67, 81 Carroll, Judge, 18 Car theft, see Automobile, theft Carrigan, M. E., 64 Carter, Edward, 73 Cartoons, see Ellis, Fred; Gropper, Wil­ liam; Robinson, Boardman Cartridge, defined, 83 Case of Sacco and Vanzetti (Frankfurter)» 3*9 Case of Saeco and Vanietti in Cartoons from the Daily Worker (Ellis), 322 "Case That Rocked the World" (Stark), 239-240 Casey, John M., 410 Casey, Richard G., 34, 38, 40, 45, 54 Cato, "Ballade of the Crime Wave," s8i Cattell, J. M., 293 Censorship, implicit, 342

583

Chaffee, Zechariah, Jr., 211 Chembiri v. Florida, 193-194 Chapter references, 519-556 Cheswick, Pa., riot, 276 Cheyney, Ralph, 383 Chicago Tribune, 284-285 Child, Richard W., 249-250 Christophori, Andrew, 43 Chronology, see Periods, chief Churches, position of the, 256-257, 281 Citizens' National Committee, 293-294, 295 Clemency, denied, 23 Coacci, 59 Cochran, Mrs. W. S., 195 Codman1 John S., 225-226, 233, 293 Coes, Loring, 148 Cohan, Julius Henry, 262 Cohen, Morris R., 324 Colbert, H. C., 61-63 Coie, Austin C., 40 at Dedham trial, 66, 73 Collier's, 265 Colt automatic, see Guns, Sacco's gun Comiιέ Internationale de d£fense anarchiste, 242 Comit£ Sacco-Vanzetti, 242 Communist Party of America, 254 Communists, 245, 254-255, 328-329, 358, 369-372. 438 Community Church, 247 Community hostility, impact of, upon a defendant, 191-196 "Condemned, The" (Bynner), 385 Connolly, Captain, 39 Connolly, Police officer Michael J., 39, 43» 49-50» 69-70' 76 Consciousness of guilt, 9, 11, 68-72, 75· 76, 81-83, 365 Conspiracy against Sacco and Vanzettif 229 Constantino, Dominic, 63 Cook, Waldo L., 263, 293, 300, 377 Coolidge, Albert S., 350 Coolidge, Calvin, 294, 296, 301 "Enemies of the Republic," 216-218, 271 Coolidge, Mrs. J. T., 303 Corcos, Fernand, Sacco et Vanzetti sont innocents, IibJrons-Ies!, 242 Corriere della Sera, 337 Coriolanus (Shakespeare), 400 Counsel, appearances of, at Dedham trial, 58 at Plymouth trial, 33-34 Hill, Arthur D., on motion on trial judge's prejudice, 24 Cowley, Malcolm, 380-381, 383 "Echoes of a Crime," 360-361, 377 "For St. Bartholomew's Day," 386 Cox, Alfred E., L. Q. White paymaster, 26 Pinkerton reports, in, 27 testimony, at preliminary hearing, 32 at Plymouth trial, 35-36 comment on, 43-44 Cox, Governor Channing H., 51-52, 237 Crocker, George IJ., 147

584

INDEX

Crowley, Michael, 240, 274, 284 Cullen, Countee, 381 "Not Sacco and Vanzetti," 385 Curley, James M., 286, 537 (note 4) Curtis, Charles P., Jr., 268 Daily Worker, 272-273, 377 Dallas Central Labor Council, resolu­ tions, 242 Daly, William H., affidavit of, 13, n6 Damato, Nicola, 65 Dana, Henry W. L., 460, 517 Dance of Fire, "Three Men Die" (Ridge) in, 363, 390-392 Danforth, Edward C., 26-27 Davies, Mary C., 383 "I Am the Chair," 381 Davis, John W., 318 Dearborn Independent, 250 "Death March," 276 Death masks, 312 "Death Watch," 311 disposal of cases, relating to, 312 De Beradinis, Louis, 64 Debs, Eugene V., 217 letter to Sacco, 236-237 Dedham trial, 10-u, 58-113 conduct of the, 94-107, 149 handling of defendants' radicalism, 9598 handling of fetal bullet and shell issue, 98-106 summing-up by counsel, 107 evidence, comments on, cumulative weight, 92-94 individual elements, 77-92 consciousness of guilt, 81-83 fatal bullet and the shell, 83-90 identification, 77-81 Sacco's cap, 81 Van2etti's revolver, 90-92 summary of, relating to Sacco, 60-72 consciousness of guilt, 68-72 eyewitnesses before the shooting, 60-61 eyewitnesses of the shooting, 61-63 fatal bullet and the shell, 67-68 other identifying witnesses, 63-67 Sacco's cap, 67 summary of, relating to Vanzetti, 72-76 consciousness of guilt, 75-76 eyewitnesses, 72-73 Vanzetti's revolver, 73-75 jury, 20i-220 conclusions as to, 219-220 membership, 205 selection, 10, 59 views scene of crime, 59 opens, 10, 58-59 relation of Plymouth trial to, 107-113 Thayer's charge, 104 Defense, significance of the quality of, 510 Defense Committee, see Sacco-Vanzetti Defense Committee Deland, Frank S., 410

Deland, Margaret, 267 Delaney, Ed., Blood-Stained Trail, 3273*8 Delineator, Coolidge article, 216-218 Del Vechio, Thomas, 383 Dentamoro, Professor, 223 Deportations Delirium of Nineteentwenty (Post), 213-214, 245, 319 Detroit, Michigan, 206 Deutsch, Babette, 381 Devlin, Frances ]., 65, 78, 80 De Voto, .Bernard, 422 We Accept with Pleasure, 364, 421, 429-434' 5°2 Dewey, John, 293 "Psychology and Justice," 345-346 Di Carli, John, testimony at Plymouth trial, 45» 47 De Witt, S. A., 382 Dictionary of American Biography, 362S6S Discretion of judges, 17, 121 Dobson, David I., 383 Docket of the Norfolk County Superior Court, 4 Dolbeare, Harry E., 72, 80 Donnelly, Captain, of New York police, 32S Donovan, Mary, «74 Dos Passos, John, 312, 350, 382, 422, 439, 5l7

Big Money, The, see U.SA. Facing the Chair, 244, 377, 439 frameup, comment on, by, 244 Italian immigrants, comment on, by, 244 letter to Fuller, 282 letter to Lowell, 439-440 Three Soldiers, 439 "Two Interviews," 243-244 USA., 364» 481> 438*444» SOS comment on, by Kazin, 439 "Doubts That Will Not Down," New York World, August it), 1927, 286 Douglas, William M., 43 Doyle, Thomas H., 51-52, 57 Drama of Sacco and Vanzetti (Thinet), 421, 444*445 Dreiser, Theodore, 324 Dreyfus, Albert, 296 Dreyfus, Carl, 267 Dreyfus case, 338-339, 400 Dudos, Jacques, 275 Dudley, Dorothy, "August Clippings, 1921-1927," 381 Duluth (Minnesota) Herald, 264 Dwyer, Michael J., 294 Earle, Edward M., 324 Eaton, G. D., 324, 341 "Echoes of a Crime" (Cowley), 360-361, 377 „ 1 53 Eels, American Express receipt for delivery Of, 52-53 testimony about sale of, at Plymouth trial, 42 "Eels and the Electric Chair" (Beffel), 226

INDEX Ehrmann, Herbert B., 352 enters case, 19,137 Untried Case, The: the Sacco-Vametti Case and the Morelli Gang, 354 Einstein, Albert, xvl Elia, Roberto, 71 [502 Eliot, T . S„ Murder in the Cathedral, Elizabeth the Queen (Anderson), 419 Ellis, Fred, Case of Sacco and Fanzetti in Cartoons from the Daily Worker, 328 Ellis, Warren H., 63 Emporia Gazette, 263 "Enemies of the Republic" (Coolidge), 216-218, 271 England, criminal law, 845 English opinion, see British opinion Ensher, Napoleon J-, 39. 45 Ernst, Morris, 268 "Error judicial; el proceso Sacco y Vanzetti, Un," in Nauelos y Cuentos, 359 Espionage Act, 209 Ettor-Giovannitti case, 824 "Eucharist" (Root), 380 Evans, Elizabeth Glendower, 286, 233, 324, 463, 510-511 Outstanding Features of the SaccoVanzetti Case, 833, 460 Evarts, Richard C., 319, 358 "Evidence Doesn't Count" (Shields), 228 Experts and expert testimony, 15, 189>9» Facing the Chair (Dos Passos), 244, 377, 439 Fackenthal, Frank D., 258 Faculties, law, letter from, 259 Fair trial, question of a, 157, 367-368 Farnum (in Dept. o£ Justice office), 353 Parrel!, James, 421 Bernard Clare, 364, 421, 426-487 Fatal bullet, see Bullet Faulkner, J. W „ 72 Fay, George W., 60 "Fear" (Millay), 343-345- 3 8 6 analysis of, 379 "Fear, Freedom, and Massachusetts (Kallen), 556 (note 4) Federal courts. United States Supreme Court, 24 unsuccessful attempts to enter die, 24 Feiker, William H , 258 Felicani, Aldino, 225,234, 40s, 463, 517 entry to prison denied, 283 Ferrari, Lieutenant, 58 Ficke, Arthur Davison, "Massachusetts Thanksgiving 1987," 387 "Prayer in Massachusetts," 381, 386387 Ficke, Mrs. Arthur Davison, 517 Field, Elias, 319, 352 on Proctor's arrangement with prosecution, 126-131 Fifth supplementary motion; the Hamilton-Proctor motion, 14-16 Fight Continues, The, 235

585

Filene, A. Lincoln, 867 Filene, E. A., 249 Financial Report (Sacco-Vametti Defense Committee), 837-838 First supplementary motion; the RipIey-Daly motion, 12-13, 115-117, 320 Fitzgerald, J. Henry, 15, 89 Fitzmeyer, George F., 74, 90-91 "Flames" (Root), 386 Flexner, Bernard, 318 Flexner, Eleanor, American Playwrights, criticism of Anderson, 410, 419 Florence, Mrs. Aldeah, 74 Flynn, Elizabeth Gurley, 825 "For St. Bartholomew's Day" (Cowley), 386 "For the Honor of Massachusetts" (Allinson), 288, 378, 387-389 Forbes, Mrs. J. Malcolm, 293 Ford, Henry, 250, 298, 494 Foreigners, attitude toward, 207 in New England, 207 in New York, 207 in Wisconsin, 807 "Foreigners," in New Republic, 201 Fortini, Mrs. Mary, testimony at Plymouth trial, 45, 52-53 • Fosdick, Harry Emerson, 324 Fosdick, Raymond B., 318 Foster, William Z„ 358 Foundation Press, 517 Fourscore (Grant), 309 (fn.) Fourth supplementary motion; the Andrews motion, 14 Fraenkel, Osmond K... Sacco-Vametti

Case, 35J

Fraher, T . F., 11, 67, 85 "Fraher" shell, see Shells, "Fraher" shell France, Anatole, letter of October 31, 198>. 833-834, 338 Frankfurter, Felix, a n , 843, 8B7, 270, 304, 308, 352, 460 Atlantic Monthly article, 853, 258, 879. 3 ' 9 Case of Sacco and VantetU, 319 position in the case, 319 Thayer's ruling on Medeiros motion and, 140 Wigmore controversy, 860-268, 353 Frankfurter, Mrs. Felix, 314 Franklin, Fabian, "Logic of the SaccoVanzetti Case," 265 Freund, Ernst, a n , 384 Fry, Varian, 348 Fuller, Alvan T., 6, 315, 368, 509 Advisory Committee and, 298-309 ambassador, considered as, 314 attacked in verse, 381 Berger, attack on, 218 Canter, libel by, 318 character and reputation, 299 clemency denied by, 83 Goodwin dismissed hy, 314 interviews, Millay, 282 Musmanno, 353

586

INDEX

Vanzetti, 300 letters received, 863, 266-870, 278, 288, 891» 89«. 294» 323 O'Brien, conversation with, 333 opinion on, Berger, 218 Lowell attack (1936), 348 political ambition, alleged» 301 presidential possibility, 314, 317 proceedings before, conclusions as to, i5i-*57 remarks in Europe, alleged, 357 study of the case, 83, 151, 300-301 trip to France, 378 "Why I Believe in Capital Punish­ ment," 251 Fuller, Charles L., 51 Funeral, 311-318 Furriers union, 24s Gaines, Mrs. Mary, 61 Gale, Juror, 50 GaIIeani, Luigi, 223, 317 Gallivan, Jeremiah, 156 Galsworthy, John, letter, 255 Gastonia case, 191-193 Gates, Sylvester, article in Dictionary of American Biography, 362-363 General Defense Bulletin, "We Never Forget," 358 "Gentlemen of Massachusetts" (Rorty), 387 Gill, Augustus H., 15, 136 Glazer, Max L., 52 Goddard, Calvin H., 174-176, 304, 317 "God's in His Heaven—All's Wrong with the World" (Wood), 421, 427-429 Gods of the Lightning (Anderson and Hickerson), 321, 402-411, 420 foreign editions, 363, 393 stage history, 410-411 Gold, Ben, 255 Gold, Michael, " 'It's a Fine Day'—Said Governor Fuller," 377 "Golgotha in Massachusetts" (Wood), 380 Goodenough, Carolyn, 380 Goodridge, Carlos £., 14, 65-66, 80, 134-135 Goodridge motion, see Third supple­ mentary motion Goodwin, Frank A., 270, 301, 314, 315 Red Peril, 343 Goodwin, Robert £., 259 Gordon, George A., 257 Gould, Roy E., 13, 81, 135 Gould-Pelser motion, see Second supple­ mentary motion Graham, James M., 34, 47, 48 Grant, Robert A., 302, 368 autobiography, 302, 309 (fn.) character and reputation, 302-303 defense of Advisory Committee's spirit, 305-306 Fourscore, 309 (fn.) Frankfurter article, dislike of, 303 prejudice against Italians, alleged, 303 Graves, Earl, 26, 49

in Pinkerton reports, 27 Gray, Mrs. Morris, 303 Green, Ambassador, 278-279, 280 Grooves, defined, 83, 84 Gropper, William, cartoon, 254, 322 Groupings, analysis of social, 221-223, 272, 310, 326, 360-361, 369-372 Guadagni, Felix, 223 Guns, see also Ballistic evidence, carried by Sacco and Vanzetti, 7 significance of, 506 Sacco's gun, 7-8, 69 Vanzetti's gun, β, is, 73-75, 90-92 Gunther, J. D., and C. O., Identification of Firearms from Ammunition Fired Therein, 351-352 Hale, Swinburne, 211 "Half an Hour with Sacco" (Borghi), 380 Hall, Walter P., 152 Hallowell, F. W., 267 Hamilton, Albert H., 136, 537 (note 4) appears in Thayer's narrative in his order of March 21, 1924, 160-172 Proctor's arrangement with prosecu­ tion, affidavit of, 126-131 Thompson on, 535 (note 30) Hamilton, Dr. Alice, 324 Hamilton-Proctor motion, see Fifth sup­ plementary motion Hammond, J. H., 267 Hapgood, Powers, 312 Harcourt1 Brace and Co., 517 Harcourt, Sir William, 281 Harden, Maximilian, 245 Harding, Frank W., 26-27, 30, 49 Pinkerton reports, in, 28 testimony, at Plymouth trial, 36-37 at preliminary hearing, 33 comment on, 43-44 Hardwick, Thomas William, aio Harrison, Henry, 378 Hartford (Conn.) Times, 248, 263 Harvard University, Law School faculty, 291 Law School Library, 460 prize essay, 364 tercentenary exercises, 347 "Harvest" (Titzell), 382 Hassam, George H., 49 Pinkerton reports, in, 29 testimony at Plymouth trial, 41 Have Sacco and Vanzetti Died in Vainf, 358 Hayes, Arthur Garfield, 293 Hayes, Ellen, 312, 508-509 Hayes, J. H., 237 Hayes, J. J., Pinkerton operative, 26 Haymarket Affair, xv, 205, 208, 209, 357 Heany, Chief, 254 Heavenly Discourse, see Wood, Charles Erskine Scott, "God's in His Heaven . . ." Hemenway, Mrs. Augustus, g03 Henderson, Leon, 351 Hendry, Warden, 480 Herling, John, 348

INDEX Heron, W. J., 61, 77 Herrick, Myron T., 231 Herring, H. C., 326 Hickerson, Harold, Gods of the Lightning,, 321, 363, 393, 402-411, 420 Boston censorship of, 410-411 stage history, 410-411 "Hidden Drama of Sacco and Vanzetti," in True Detective Mysteries, 352 Hill, Arthur D., 319, 352, 377 chief counsel, 24 Hill, William S., 31 Historical judgment, bases of, 506 elements of, in Sacco-Vanzetti case, 506-512 Hocking, William E., 247, 258, 293, 302 Holcombe, A. N., 267 Holdup, see Bridgewater assault; South Braintree holdup and murders HoUadayi Paula, 276 Holmes, John Haynes, 257, 299, 348 "Ballad of Charlestown Jail," 383-384 Holmes, Oliver Wendell, Jr., 25, 210, 353» 355» 402 Hopedale strike, 202 Hopkins, Mrs. R. G., 267 House Committee on Un-American Ac­ tivities, 208 Houston Press, 359 Howe, Quincy, 348 Howells, William Dean, 208, 209 Howland, Charles P., 318 Hudson, see Automobile Hughes, Charles Evans, 211, 231 L'Humanitέ, 274, 323 Huntington, Catherine, 312 Hurwitz, Assistant Attorney General, 55» 57 Hutchins, Robert Maynard, 246, 308 Hutchinson, Anne, xv Hysteria, social, 203-205, 273, 292, 295, 312, 368, 508 I. W. W., 76, 201, 313, 327 "I Am the Chair" (Davies), 381 Identification of Firearms from Ammu­ nition Fired Therein (Gunther), 35**352 Identification testimony, 6, 77-81, 141, 364-365 Illinois Crime Survey, 186 Illinois United Mine Workers, 245 "In Memoriam" (Meiklejohn), 377 independent, 322 Industrial Pioneer, 228 Industrial Workers of the World, 76, 201, 313, 327 Ingersoll, Robert G., 207 Inglis, Agnes, 517 Inquest, at Quincy, on South Braintree murders, 31 International Anarchist Defense Com­ mittee, 494 International Labor Defense, 358, 493 Sacco and Vanzetti Shall Not Die, 254 Interpreter, at Dedham trial, 59

587

at Plymouth trial, 42, 46, 516-517 (note 23) L'Intransigeant, 290 "It Is Not Too Late," New York World, August 22, 1927, 286 Italian Chamber of Deputies, 201 Italian Defense Committee, 71 " 'It's a Fine Day'—Said Governor Ful­ ler" (Gold), 377 Iver Johnson Company, 74, 90 Jackson, Gardner, 234-235, 313, 314, 324, 348, 402, 460 Sacco-Vanzetti Case: Twenty Years Later, 350-351 Jackson, William Schuyler, 295-296 Jake Home (McKenney), 364, 421, 434438 author's own comment on, 436-437 James, Edward H., interview with Boda, 317 re-enacts crime, 254 speech in Lawrence, 254 Jastrow, Joseph, 343-345 Joan of Lorraine (Anderson), 403 Jocomo, 55 John Reed Club, Red Boston, 358 Johnson, Mrs. Ruth G., 68-69 at Plymouth trial, 40-42, 45, 48 Johnson, Simon E., connection with Boda automobile, 31-32» 59 testimony, at Dedham trial, 68 at Plymouth trial, 40-41, 45, 48 Jones, James H., 74 Journal de Geneve, 290 Judicial Council, 537 (note 1) recommendations, 316-317 "Judicial Murder in the United States," 243 Juries, American, selection of, 205 Jury. at Dedham trial, 201-220 conclusions as to, 219-220 membership, 205 selection, 10, 59 views scene of crime, 59 conviction, significance of, 507 Justice, Department of, 281 memorandum of October 17, 1921, to State Department, 231 significance of records of, 22, 123-124, 278 "Justice Denied in Massachusetts" (Millay), 282, 381, 385 Kallen, Horace M., 324, 330, 508-509 "Fear, Freedom, and Massachusetts," 556 (note 4) Kane, Francis Fisher, 211 Kane, William F., 33, 46, 58 Katzmann, Frederick G., 8, 33, 43, 46, 50, 58, 102, 107, 109, 110, 112 Advisory Committee, appearance be­ fore, 152 Codman's opinion of, 225 general estimate of, 509 length of controversy, explanation of, by. 9

5B8

INDEX

Proctor's affidavit on arrangement with prosecution, answer to, 16, 129 Sacco, cross-examination of, by, 96*97, 117-126, 320, 523-534 (note 53) Kazin, Alfred, on Dos Passos, 439 Kelley, G. T., 67, 71 Kellogg, Frank B., 265, 277, 279 Kellogg, Paul, 293-294, 340 Kelly, Louise, 133 Kennedy, Minnie, 135 Kent, Rockwell, 324 King, John H., 38-39 Knapp, joe, see San Marco Knights of Columbus, 266 Knights of Labor, 206 Kreisler, Fritz, 245 Kurlansky, Harry, 61, 77 Labor's Martyrs (Marcantonio), 358 Labrecque, A. N., 60 La Follette's Magazine, 233, 389 La Guardia, Fiorello, 299

Landis, James M., 245, 258 Landis, Kenesaw Mountain, 210 Langerock, Hubert, 339 Langlois, E. C., 62 Lansbury, George, 237 Lantern, 313, 314, 324 Laski1 Harold J., 324 Lawrence, Bishop William, 257, 268, 281 attacked in verse, 381 Lawson, John Howard, 312 Lead, defined, 83 League for Democratic Control, On Guard, 226 Legal problems, social reaction to, 364· 368 Legal system, failure of, significance of, 507 Legend, literary, growth in Saeeo-Vanzetti Case, 504 Lehman, Herbert H., xvi Lehning, Arthur M., 323 Length of the controversy, 4 Katzmann's explanation of, 9 Leonard, William Ellery, 324 Letherman, Lawrence, 123 "Letter of five," 268 "Letter of 500," 293 "Letter of twenty-six," 267-268, 509 Letters of Sacco and Vanzetti, 314, 460461 foreign editions, 314 Gates, Sylvester, opinion on, 363 libelled by Paris Herald Tribune, 357 Levangie, Michael, 73, 80 Lewis, Sinclair, 324 Libertit 290 Liberty, 330, 358 License plates, Bridgewater assault, 5, 29, 41 South Braintree holdup and murders, 5» 6S Lichnowsky, Prince K. M., 245 Life and Death of Sacco and Vanzetti (Lyons), 314, 377 foreign editions, 314 Lindbergh, Charles A., 266

Lippmann, Walter, 286-287, 377 Literary Digest, 229, 239 Literary verdict, significance of the, 511-512 Literature of the case, see Sacco-Vanzetti Case, literature of the Literature of the Record, 376-378 Little, Brown and Co., 518 Living Age, 336 Llewellyn, Karl N., 255, 285, 354 discussion of the case, 178-183 Locomotive Engineers Journal, 228, 389 Loebe, President, of the Reichstag, 249 "Logic of the Sacco-Vanzetti Case" (Franklin), 265 London Daily News, z8g London Morning Post, 336 London Sunday Express, 255-256 London Times, 289 London Westminster Gazette, 336 Lopez, Frank, 202, 225 Loring, F. L., 67 Lost Eden (Root), 386 Lovett, Robert M., 293, 314, 324, 339-340 Lovett, Rev. Sidney, 324 Lowell, A. Lawrence, 302, 303, 368 Advisory Committee, chairman, 302, 309 (fn.) dominated by, 306, 309 (fn,) report, draft of, 304, 309 (fn.) anti-Semitism, alleged, 304, 546-547 (note 18) attacked in 1936, 348 attacked in verse, 381 Bosco-Guadagni episode, comment on, 319 character and reputation, 303-304, S09 (£n.) interviewed by Musmanno, 353 letter from Dos Passos, 439-440 letter from Taft, 308 Lovett's comment on, 339-340 opinion on, Frankfurter article, 305 Wigmore articles, 261 quoted, 298 responsibility, weight of, 509 Lowell, Mrs. A. Lawrence, 303 Lowell, Francis C., 303 Lowell, Percival, 303 "Lowell" bullets, see Test bullets and shells Lowells and Their Seven Worlds, 547 (note 26) Lubin, Jacob, 55 Lusk Committee report, see New York Legislature, socialists unseated Lyons, Eugene, 224, 228, 235, 243, 329, 330-33I "Another Frame-up Exposed," 206, 225 Life and Death of Sacco and Vanzetti, 3»4» 377 McAnarney brothers, 58, 96, 100, 111-112 withdraw as counsel, 16 McCarthy, Henry, 73 McCuIIum, Peter, 63, 74, 91 McGlone, James E., 62, 75, 91-92

INDEX McHardy, Louis, 27$, 283 Mclver, R. M., Society, a Textbook of Sociology, 540 (note 1) McKenney, Ruth, 421 Jake Home, 364, 421, 434-438 author's own comment on, 436-437 MacDonald, Herman, 300-301 MacKenzie1 Norman, 29 MacKinder, W., 237 MacLean, Neil, 237 MacMechan, Mrs. Virginia, 473, 480 Macon (Georgia) Telegraphf 264 Madrid Socialista, 290 Magazu, Peter, 65 Magill, A. B., 379 Magrath, Dr. George B., 84, 98 Magruder, Calvert Professor, 246 Male Animal, The (Thurber and Nugent), 361, 564, 393. 398-400 Manchester (Conn.) Herald, 248 Mancini, Tony, 20 Manganio, Andrew, 65 Marcantonio, Vito, Labor's Martyrs, 358 Marks, Jeannette, Thirteen Days, 377-378 "Two Crucified," 380 Martinez, Jose A., Sacco y Vanzetti, un grave error judicial, 353 Martini, Paul, see Silva, Frank Marvin, Fred R., 271 Mary of Scotland (Anderson), 419 Masque of Kings, The (Anderson), 419 Massachusetts: a Guide to Its Places and Its People (American Guide Se­ ries), 362 Massachusetts American Federation of Labor, 245 Massachusetts bar, opinion of Nutter, 316 Massachusetts Legislature, 299 Massachusetts Reputation at Stake!!!, 323 "Massachusetts Thanksgiving 1927" (Ficke), 387 Massachusetts the Murderer, 323 Maxton1 James, 237 Mede, Jimmie, 51*57, 158 Medeiros, Celestino F., see also Motions for a new trial Advisory Committee on, 156 confession, 18-19, 137-139 execution, 25 Medeiros motion, 18-21, 115, 137-139 appeal, 20-21 "Meeting, The" (Oatman), 380 Meiklejohn, Alexander, 324, 338 "In Memoriam," 377 Memorial meetings, 347 1928, 324 1929» 324 twentieth anniversary, 350-351 Mencken, Henry L., 226, 234 Merritt, Z. R., 273 Messagero, 291 Meyers, Harry, "Our Murdered Com­ rades," 382 Michigan, University of, Library, 460

589

Microscope, comparison, see Goddard, Calvin H. Milan labor group, opinion, 229 Millayl Edna St. Vincent, 382 "Fear," 343, 386 analysis of, 379 letters of protest, 343 analyzed by Jastrow, 343-345 interview with Fuller, 282 "Justice Denied in Massachusetts," 282, 381, 385 "Two Sonnets in Memory," 386 Millay, Kathleen, 293 Mr, Blettsworthy on Rampole Island (Wells), 322, 421, 424-426 Mdrder Massachusetts, 323 Money, stolen, 6 Mooney case, 239, 270 Moore, Fred H., 50, 51, 58, 96, 99, 202, 206, 540 (note 4) appears in Thayer's narrative in order of March 21, 1924, 160-172 character and reputation, 224 enters case, 224 handling of Andrews, 14, 132 handling of Goodridge, 14 handling of Pelser, 14, 133-134 withdraws as counsel, 16, 237 Moore v. Dempsey, 245 Moors, John F., 215, 267 Morawetz, Victor, 318 Morelli, Frank, 20 Morelli, Joe, 20, 134 Morelli, Mike, 19 Morelli gang, 19-20, 354, 520 (chapter 1, note 21) Morgan, E. M., review of Ehrmann's book, 354 Moro, Joseph, 234 Morton, James M., 25 Morris, Senator Wayne, 351 Morrison, Samuel E., 226, 245, 55a (note S7)

Moscow Worker, 322-323 Moskowitz, Nicholas, 384 Motions for a new trial, 11-21, 114-148 Chronological listing: verdict against the weight of evidence, 12, 114 first supplementary motion; the Ripley-Daly motion, 15-13, 115-117, 320 second supplementary motion; the Gould-Pelser motion, 13-14, 81 third supplementary motion; the Goodridge motion, 14 fourth supplementary motion; the An­ drews motion, 14 fifth supplementary motion, the Ham­ ilton-Proctor motion, 14-16 Medeiros motion, 18-21, 115, 137-139 denial of, by Judge Thayer, 20 based on trial judge's prejudice, 24» 115, 142-148 prepared by Moore and Thompson, 115 Munsterberg, Hugo, On the Wttness Stand, 79 Mumford, Lewis, 324, 328-329, 350

59°

INDEX

Murder in the Cathedral (Eliot), 502 Murphy, Francis J., 5, 29-30, 34, 41 Murphy, Dr. John M., 39, 44, 45, 48 Murray, Philip, 351 Musmanno, Michael A., 352, 402, 472 After Twelve Years, 352-353 Fuller and, appeal to, 266 interview, 353 Mussey, Henry R., 324 Mussolini, Benito, 235, 278, 291 Mustache, Vanzetti's, 36, 43 My Personal Relations to the Sacco Vanzetti Case as a Chapter in Massachusetts History (O'Brien), 332 Myth, literary, absent in Sacco-Vanzetti Case, 503-504 Nagel, Charles, 318 Nakwat, Semeon, affidavit, 212-213 Nation, articles on failure to call witnesses, 262 letter to Fuller, 265 Nation (London), 289 Nation and Athenaeum, 336 National Proletarian League of War Cripples in Rome, 231 Neilson, William A., 247, 258 "Nervous American, The" (O'Higgins), 341 Neues Wiener Tagblatt, 336 New England Civil Liberties Committee, 225-226, 233 Sacco and Vanzetti: Shall There Be a Mooney Frame-up m New Eng­ land?, 226 New Leader (London), 289 New Masses, 254 New Republic, 265, 285, 320, 341, 361 effect of case, 331-332 essay on foreigners, 201 interest in case, 238, 240 notices of case, 262-263 New Statesman (London), 247, 296, 341 New York Herald Tribune, 283, 285, 293 Paris edition, 357 New York Legislature, Socialists un­ seated, 208, 216 New York Times, 229, 285 New York World, 248, 264, 286-289, 297, 317. 377 Nichols, Annie, 61 Nichols, Malcolm S., 351 Niebuhr, Reinhold, 350 Night over Taos (Anderson), 419 Niles, Alfred S., 211 Norton, Clement A·, 351 "Not Sacco and Vanzetti" (Cullen), 385 "Notes for a Comic History," 207 Novelos y Cuentos, "Un error judicial; el proceso Sacco y Vanzetti," 359 Novels, 364, 421-454 general considerations, 421-423, 453454 Nugent, Elliott, Male Animal, The, 361, 364. 39$· 398-400

Nutter, George R., 316 Oates, alleged participant in Bridgewater assault, 53 Oatman, Miriam E., "The Meeting," 380 O'Brien, Robert Lincoln, 332-336, 509, 549 (note 70) conclusions as to accuracy of, 334*336 My Personal Relations to the Sacco Vanzetti Case as a Chapter in Massachusetts History, 332 opinion on, defense of courts, 333 guilt of Sacco and Vanzetti, 334 social pressure, 333 O'Connell, Cardinal, 257, 281-282, 294 O'Connor, Juror, 50 Official Bulletin (Sacco-Vanzetti Defense Committee), 234, 236, 245, 313, 3l4» 347» 377 O'Higgins, Harvey, "Nervous American, The," 341 Ohio State Federation of Labor, 245 On Guard (League for Democratic Con· trol). 226 On the Witness Stand, Munsterberg, 79 Only Yesterday (Allen), 361-362 Orciana, friend to Sacco and Vanzetti, 32, 40, 42, 45, 59, 68, 75, 76 Order of March 21, 1924 (Thayer), 160176 possible effect on Advisory Committee, 174» 304 Order of trials, 9» 107-113 "Our Murdered Comrades"( Meyers), 382 Outlook, 239, 322 investigation, 53, 57 Outlook (London), 285 Outlook and Independent, 322, 343 investigation published in, 54, 317-318 "Outrages in Defence of Order" (Wells), 342 Outstanding Features of the SaccoVanzetti Case (Evans), 233, 460 Overland, see Automobile, Boda's Packard, Lottie, 156 Palmer, A. Mitchell, 210, 213, 215, 230 Red Radicalism as Described by Its Own Leaders, 215 Paris Herald Tribune, see New York Herald Tribune, Paris edition Parker, Dorothy, 282 Papa, Vittoria, 39 Paris bar, protest, 246 Parker, Junius, 338-339 Parmenter, Frederick A., 6, 31, 58, 74, 83.91 son of, 250 Pay Day (Asch), 364, 421, 423-424 Payroll, see Bridgewater assault; South Braintree holdup and murders Peabody, Frederick W., 259 Pelser, Louis, 13, 63, 77-78, 80, 133-134 Moore's handling of, 14, 133-134 "Penalties of the Sacco-Vanzetti Execu­ tion," in New Republic, 331, 377

INDEX People v. Esposito, 207 People v. Strewlt 537 (note 4) Peppi, see Papa Periods, chief, list of, xi, 3-4 of social interest, 223 Perkins, Helen, 27 Perry, Bliss, 267 Petition for executive clemency, 23, 151, S98, 480, 554 (note 19) Petitions, public, 266 Pettyjohn, Mrs. Maude, 486 Pierce, Edward P., 352 Pinkerton Detective Agency, engaged, 6, 26 , reports, 6, 27-30, 49 Pitting, of bullets, 87-88 "Place Sacco-Vanzetti," 361 Plaque, see Borglum, Gutzon Hays» 393-420 general considerations of, 393-394, 401, 420

Plotkin, David G., 383 Plymouth Cordage Co. strike, 202 Plymouth trial, 33-56 conclusions as to, 55-57 conduct of the, 46-47 evidence, comment on, 43-46 summary of, 34-43 circumstantial evidence, 38-42 defendant's evidence, 42*43 eyewitnesses before the encounter, 37-38 eyewitnesses of the assault, 34-37 opens, 9, 33-34 relation to Dedham trial, 107-113 subsequent events, 47-55 disclosures to the Governor, 49-55 in the Superior Court, 47-48 verdict of guilty, 9 Poetry of the case, see Verse Pollak, Walter H., 318 Post, Louis F., attempted impeachment, 215 Deportations Delirium of Nineteentwenty, 213-214, 245, 319 Pound, Roscoe, 211, 308 Powys, John Cowper, 324 "Prayer in Massachusetts" (Ficke), 381, 386-387 Preliminary hearings, 8, 58 Preparations for the crimes, 5 Primer cap, defined, 83 Prince, Morton, 246, 249, 267 Procter, Joseph O., 259 Proctor, William H., arrangement with prosecution, 220 affidavit on, 15-16, 126-131 Advisory Committee opinion on, 155 Katzmann's answer to, 16, 129 opinion on fatal bullet, 86, 99, 105 testimony, at Plymouth trial, 42, 49-50 at Dedham trial, 67*68, 85-86, 89-90 Proudhon, War and Peace, 473 Providence (R. I.) Daily Tribune, 248 "Psychology and Justice" (Dewey), 345-

59*

Public opinion, 265-271, 291 Pulitzer, Ralph, 288 Pulitzer Prize, 248, 363 Radicalism, defendants', see also Katzmann, Frederick G., cross-exam­ ination of Sacco, 95-98, 154 Radicals, American attitude toward, 208-220, 230, 261, 308, 368, 372

policy of, on case, 241 roundup of, 8 U. S. legislation against, 209-210 Rain from Heaven (Behrman), 393, 397398 Rainey, Dr. Homer P., 349 Ralston, Jackson H., 211 Rand School faculty, 217 Random House, 518 Ranney, Dudley P., 18 Rantoul, Lois B., 147 Raymond, Allen, 285 Reading, Arthur K., 315, 353 Record, literature of the, 376-378 Red Boston (John Reed Club), 358 Red Peril (Goodwin), 343 Red Radicalism as Described by Its Own Lea'ders (Palmer), 215 Red raids, 71, 211-215, 519 (note 3) Reed, Austin T., 73, 80-81 Reich, Henry, 383 Relation of Plymouth trial to Dedham trial, 107-113 Report upon the Illegal Practices of the United States Department of Jus­ tice, 211-215, 230 congressional hearings on, 215 Reynal and Hitchcock, 517 Reuther, Walter, 351 Review of Reviews, 324-325 Rice, M. T., Blood-Stained Trail, 327328 Richards, I. A., quoted, 502 Richardson, James P., 148, 250, 334 Riddell, William R., review of-case, 321 Ridge, Lola, 282, 379, 383, 389 "Three Men Die," 363, 39°*392 "Two in the Death House," 389-390 Ring and the Book (Browning), 502 Riots, Borah's opinion on, 295 foreign, 274, 277, 296, 313 in U. S., 274, 276 Ripley, Harry H., 115-116, 203 affidavit, 12 cartridges, 12 death, 12, 116 Ripley, Mrs. William 26?/ 350 Ripley-Daly motion, see First supple­ mentary motion Rise of American Civilization (Beard), Vanzetti's criticism of, 492 Road to Freedom (Abbott), 242, 253 Robbins1 Matilda, 382 Robinson, Boardman, 322 Robinson, Merton A., 15, 136 Rockefeller, John D., Jr., 318 Rolland, Romain, 337 Rome Tribuna, 290 Roosevelt, Franklin D., 313

592

INDEX

koosevelt, Mrs. Franklin D., xvi, 350-351 Roosevelt, Franklin D., Jr., 351 Roosevelt, Mrs. James, 303 Root, £. Merrill, 381 "Eucharist," 380 "Flames," 386 Lost Eden, 386 Root, Elihu, 318 Rorty, James, "Gentlemen of Massachu­ setts," 387 Rosen, Joseph, 109 Ross, Joseph, 59, 315 Rossi, Joseph, see Ross, Joseph Rotch, Mrs. Arthur G., 267 Rothschild, John, 348 Rugg, Arthur P., 18 Russell, Bertrand, 324, 339 Ryan, Daniel M., 31, 41 Sacco, Dante, 470 Sacco, Nicola, Advisory Committee, attitude toward, 467 alibi, see Advisory Committee, BoscoGuadagni episode arrest, 7*8, 31-32, 69 arrival in U. S., 456 biography, 456-457, 461-469 birth, 456 cap of, 6, 11, 67, 81 character and temperament, 201-203, 456-457' 461-469 children, 456 Debs, letter from, 236-237 Dedham trial, cross-examination at, 96-97, 117-126 domestic relations, 463-464 dream of, 466 employed in South Braintree, 457 employer's opinion of, 456 English, study of, 465 execution, 25 friends, attitude toward, 467 funeral, 311-312 habits, temperate, 456 hand, size of, 134 hunger strike, 464 insanity, 464-465 labor agitation, 457 letter of, to Amalgamated Clothing Workers, 228 lies when questioned, 8-9, 93 literary style, 462, 465, 500 Llewellyn's characterization of, 178 marriage, 456 Mexican trip, 208, 457 Moore denounced by, 467 nature, love of, 462 opinion on, society, 466-468 war» 457 petition for clemency, refuses to sign, 15*> 467 reading, 465 reprieve of August 10, 1927, 275 reputation, 201-203 savings, 456 sentenced, 22-23 skilled worker, 456

South Braintree holdup and murders, conviction, 10 indictment, 10 trial, 10-11, 58-113 Vanzetti's opinion of, 468-469 Sacco, Rose, 300, 323, 463, 470 Sacco and Vanzetti, basis of biographical analysis, 461 biographical information, sources of, 460 development in prison, 455 legacy, elements of, 513-514 literary worth of their writings, 455, 499-500 powers of historical analysis, 455 quality of, significance of, 51s question of guilt, 505-506 "Sacco and VanzettF' (music), 313 Sacco and Vanzetti: Labor's Martyrs (Schactman), 328 Sacco and Vanzetti Shall Not Die, 254 "Sacco and Vanzetti: Shall There Be a Mooney Frame-up in New Eng­ land?3" (New England Civil Liber­ ties Committee), 226 Saeco et Vanzetti sont innocents, IibJronsAes! (Corcos), 242 Sacco und Vanzetti, Zwei Opfer AmerU kanischer Dollar Justiz (Souchy), 383 "Sacco-Vanzetti—a Reasonable Doubt" (Warner), 239 Sacco-Vanzetti case, legal significance of, conclusions as to, »96-197 literature of the, general considera­ tions, 375-376» 378» 5°1 Sacco-Vanzetti Case (Fraenkd)1 353 "Sacco-Vanzetti Case" (Skinner), 226-227 Sacco-Vanzetti Case, in radio series, Those Sensational Years!, 393, 401402 "Sacco-Vanzetti Case in Russia" (Berkman), 323 Sacco-Vanzetti Case: Twenty Years Later (Jackson and Schlesinger), 350-351 Sacco-Vanzetti Defense Committee, 201, 222, 241, 276 Awakening of America's Conscience, «56 Communists, conflict with, 245 Conspiracy against Sacco and Vanzetti, 229 contributions to, 223-228 Fight Continues, The, 235 Financial Report, 237-238 Massachusetts Reputation at Stake1.!!, 323 Massachusetts the Murderer, 323 Official Bulletin, 234» 236, 245, 313» , 347» 377 petitions submitted by, 256, 266 publications of, 235, 245, 313 reports to, secret, 292 Sacco-Vanzetti Memorial Bulletin, 347 Story of a Proletarian Life, The, 235, 457 Story of the Sacco-Vanzetti Case, In·

INDEX eluding an Analysis of the Trial, *35 Victory Is in Sight, 835 World Opinion Says They Shall Not Die, 236 Sacco-Vanzetti Emergency Committee, 275 Sacco-Vanzetti International Committee, 276 Sacco-Vanzetti Liberation Committee, 276 Satico-Vanzetti Memorial Bulletin, 347 Saeeo-Vanzetti National League, 314 Saeeo-Vanzetti New Trial League, 233 Sacco y Vanzetti, un grave error judicial (Martinez), 353 St. Louis Post-Dispatch, 264, 285, 332 Salsedo, Andrea, 71, 214 death, 7, 76, 214 Salzburger Volksblatt, 322 Sanderson, George A., 18, 24 San Marco, alleged participant in Bridgewater assault, 52-55 Santosuosso, Joseph, 52 Sargent, John G., 281 Sassi, Mathew, 47 Savage automatic pistol, 85 Sayre, Francis D., 352 Scarlett, Bishop William, 350 Schactman, Max, Sacco and Vanzetti: Labor's Martyrs, 328 Schiller, 401 Schlesinger, Arthur M., 267 Sacco-Vanzetti Case: Twenty Years Later, 350-351 Scottsboro case, 194-195 Scripps-Howard editorial, 358*359 Second supplementary motion; the Gould-Pelser motion, 13-14, 81 Sentences imposed, 22-23 Sept ans d'agonie: Ie drame SaccoVanzetti (Yrondy), 393, 394-396 Set-back, defined, 86 Seven Years of Agony (Yrondy), 393, 394396 Seymour, Jim, 378 Shahn, Ben, paintings, 364 Shakespeare, Coriolanus, 400 Shaughnessey, operative, 315 Shaw, G. B., letter, 255 Shaw, Maynard F., 37 comment on evidence of, 43-44 Shells, see also Ballistic evidence; Shot­ gun shells, definition o£ shell, 83 "Fraher" shell, 11, 67-68, 85, 86, 89, 98, 105, 135-137 Shields, Arthur, 224 Are They Doomedt, 206, 226 "Evidence Doesn't Count," 228 Shotgun shells, 8, 42, 49-51, 76 opened in jury room, 50 shell discharged in Bridgewater, 39 Sibley, Frank P., 147 Siegrist, Mary, 384 Silva, Frank, 52, 56 confession, 10, 53-55, 158, 317-318 Sinclair, Upton, 235, 443, 518 Boston, 321, 421, 445-454» 503 letter to Fuller, 255

593

Slater and Morrill shoe factories, 6, 59 Skinner, Clarence R., 238 "Sacco-Vanzetd Case, The," 226-227 "Slacker lists," 208 Smith, Alfred E., 266, 331 Snow, Officer, 70 Snyder-Gray case, 250, 266 Social cleavage, see also Groupings, 36937a Social problems, general, 368-372 Social reaction to legal problems, 364-368 Socialist Party of Massachusetts, 351 Socialist Party of New York, 245 Society, a Textbook of Sociology (McIver), 540 (note 1) Society, sickness of, significance of, 508 Souchy, Augustin, Sdcco und Vanzetti, Zwei Opfer Amerikantscher Dol­ lar Justiz, 323 South Braintree holdup and murders, 6* 7» 30-32 arrest of Sacco and Vanzetti, 7-8, 3132» 69 automobile abandoned, found, 31 indictments, 58 inquest, 31 payroll, Slater and Morrill, 31 Spear, Μ. A., 70 Spectator (London), 247, 323 Sperry, Dean Willard L., 238, 270 Splaine, Mary E., at Dedham trial, 6465» 78-79. 80, 134 Springfield Republican, 263, 286, 297, 307. 338. 377 Square Deal (Abbott), 242 Stark, Louis, "Case That Rocked the World," 239240 New York Times article, 239 State Department, U. S., 230-233, 277-280 position of, conclusions as to, 232-233, 279-280 questioned by Sacco-Vanzetti Defense Committee, 278-279 serial letter of January 27, 1922, 232, 277-280 additions by Green, 279 telegram of November 10, 1921, 231 Stephen, Campbell, 237 Stern, Samuel R., 325 Steur, Max D., 262 Stewart, Michael E., Pinkerton reports, in, 27, 29 questions Sacco and Vanzetti, 8, 27, 39 testimony at Plymouth trial, 39, 45 Stimson, H. W., 258 Stipulation, at Dedham trial, as to Van· zetti's previous trial and his char­ acter, 109-112 Stone, Harlan F., 25, 230 Storey, Moorfield, 245 Story of a Proletarian Life, The (Van­ zetti), 235, 457 Story of the Saceo-Vanzetti Case, Includ­ ing an Analysis of the Trial, 235 Stratton, Rev. Harold, 324 Stratton, Samuel W., 302 Strikes, foreign, 275, 296, 313

INDEX

594

Hopedale, 202 hunger, of Sacco and Vanzetti, 464, 471-472

Plymouth Cordage Co., 202 U. S., in, 274, 275-2^6 Sturges, Wesley A., xvi Sullivan, John L., 73 Supreme Judicial Court, 509 first appeal, 16 denied, 16-18 second appeal, 18-20 denied, 20-21 third appeal, 24 denied, 24 opinion on, Department of Justice files, 126 Proctor's arrangement with prosecu­ tion, 131 proceedings in, conclusions as to, 150· »51 Taft, William Howard, 262, 308-309 Tattilo, Carlotta T., 304 Taussig, Frank W., 247 Temps, Le, 290 Test bullets and shells, 11, 84, 86-88 Teveref II, 291, 337 Thayer, Webster, 250 Advisory Committee, appearance be­ fore, 152 appears in narrative in order of March 21, 1924, 160-172 attacked in verse, 381 conduct of, Advisory Committee opin­ ion of, 155 death, 347 Dedham trial, presides at, 59 home bombed, 347 interviewed by Van Amburgh (1932), 178*.,73 Moore, relationship to, 146-147 motion on prejudice, see Trial judge's prejudice opinion on, Department of Justice files, 125-126 Gould's affidavit, 13 Katzmann's cross-examination of Sacco, 124 Proctor's affidavit on arrangement with prosecution, 129 order of March 21, 1924, see Order of March 21, 1924 Plymouth trial, charge at, alleged, 220 presides at, 34 reputation, eventual, 509 Thinet, Louis, 422 Drame Sacco-Vanzetti, Le, 421, 444-445 Third supplementary motion; the Goodridge motion, 14 Thirteen Days (Marks), 377-378 Thompson, William G., 319 appears in Thayer's narrative in order of March 21, 1924, 160-172 character and reputation of, 354-356 chief counsel, becomes, 16, 136 withdraws as, 24 financial losses, 319-320

first fee, 237 opinion on, Department of Justice files, 123 social conflict, 340 Supreme Judicial Court, 153 Vanzetti's character, 511 oral argument, as literature, 376*377 submits evidence of tampering with shells, 50-51 submits Pinkerton reports to Gover­ nor, 49 Vanzetti, last interview with, 355, 460, 505, 555 (note 31) Thorndike, Police Court Judge, 32, 58 Those Sensational Years (radio series), Sacco-Vanzetti Case in, 393, 401402

"Three Men Die" (Ridge), 363, 39°"39* Three Soldiers (Dos Passos), 439 Thurber, James, Male Animal, The, 361, 364» 393» 398-400 Time magazine, 341 Titzell, Josiah, "Harvest," 382 "To Sacco and Vanzetti, by a Rebel of Anglo-Saxon Descent" (Trent), 382-383

"Tony, the Wop," 134 Tracy, W. S., 61, 77 Transcript of the Record, 308 description of, 519 (note 1) financing of, 318 importance of, 318 photographic plates in, 15 Treasury of the World's Great Letters, 361

Trent, Lucia, "To Sacco and Vanzetti, by a Rebel of Anglo-Saxon De­ scent," 382-383 Trent-Cheyney anthology, 389 Tresca, Carlo, 206, 223, 225, 457 Trial judge's prejudice, 17, 367 motion for a new trial, 24, 142-148 Trials, order of, 9, 107-113 True Detective Mysteries, see "Hidden Drama of Sacco and Vanzetti" Tucker, Benjamin R., 292-293 "Two Crucified" (Marks), 380 "Two in the Death House" (Ridge), 389390 "Two Interviews" (Dos Passos), 243-244 "Two Sonnets in Memory" (Millay), 386 U.SA. (Dos Passos), 364, 421, 438-444, 503 Under the Bridge, 547 (note 26) Union Diarto, 279 United Mine Workers, resolution, 242 United States Supreme Court, 24 Unity, 389 University of Texas controversy, 349-350 outside opinion on, 350 public opinion in Texas on, 349 Sacco-Vanzetti episode, 350 University trustees, 400 Untried Case: the Sacco-Vanzelti Case and the Morelli Gang (Ehrmann), 354

INDEX Vahey, John P., 32, 34, 43, 47, 48, 300, 304 Van Amburgh, Captain Charles, 15, 8688, 90, 142 appears in Thayer's narrative in his order of March 21, 1924, 160-172 "Hidden Drama of Sacco and Vanzetti," 352 interview with Thayer (1932), 172-173 Vanguard Press, 518 Vanzetti, Bartolomeo, analyst of historical and social prob­ lems, 483 apprenticeship, 457 arrest, 7-8, 31-32 biography, 457-460, 469-500 birth, 457 Bridgewater assault, conviction, 9 indictment, 9, 32-33 proof against, 10, 34-42 trial, 9, 33-57 Bridgewater hospital patient, 472 capitalists, rejection of, 491-494 character of, Thompson on, 511 Communist state, rejection of, 496-497 cordage plant, works at, 459 Dedham trial, cross-examination at, 96-97 dishwasher, 458 domestic relations, 469-471 English, study of, 479-480 execution, 25, 283 execution chamber, behavior in, 491 exercise, need of, 469 experimental method, comprehension of the, by, 483 father, worked in U. S., 458 friends, attitude toward, 493-494 funeral, 311-312 gentleness, 475 gun of, 8, ii, 73-75, 90-92 humor, sense of, 472-474 hunger strike, 471-472 impersonality, 475-476 inconsistency, 493 imprisonment, effect of, 471-472, 480· 481 insanity, 471-472, 481 letters indicating, 472 interviewed by Fuller, 300 laborer, common, 458-459 last interview with Thompson, 355, 460. 505» 555 (note 31) letter to International Anarchist De­ fense Committee, 494 letter to International Labor Defense, 493-494 letter to Ford, 494 lies when questioned, 8-9, 76, 93 literary style, 500 view on his own, 480 Llewellyn's characterization of, 179 logical process, 485 Mexican trip, 208, 457, 459 migrant worker, 458 mind, evaluation of his, basis for, 479, 483

595 modesty, 474*475 mother, death, 457 memory of, 458 mustache, 36, 43 nature, love of, 469 opinion on, agronomy and irrigation, 469 anarchist state, 497-499 Christian Science, 495 church, 477 co-operative movement, 499 dignity of man, 487-401 fatal bullet, 87 fellow-radicals, 476 freedom, 487-488 Fuller, 477, 484 Hearst's International, 492 man and nature, 469 man and society, 487-499 perfectibility, 488-489 revolutionary action, 498 Russian Revolution, 477-478 technological advance, 499 violence, 489-491 outbursts, angry, 476 pastry chef, 458 petition for clemency, 23, 151, 298, 460. 554 (note 19) Plymouth trial, failure to testify at, 43 his version of the, 48 power of relating theory to action, 484-485 prison officials' attitude toward, 480 Proudhon, indebtedness to, 487 rational processes, inclination toward, 474-478 reading, 457, 459, 479, 481-483, 554 (note 5) difficulty in, 459 religion and, 243, 457, 494-496 reprieve of August 10, 1927, 275 reputation, 201-203 returns to Plymouth, 459 Rise of American Civilization, criti­ cism of, by, 492 Salsedo business, in New York on, 7, 71, 76, 214 savings, 459 schooling, 457 self-conscious thinking, power oi, 485487 sentenced at Dedham, 22-23 extemporaneous speech at time of, 50° South Braintree holdup and murders, alibi, 11 conviction, 10 indictment, 10 trial, 10-11, 58-113 Story of a Proletarian Life, 2*5, 457 temperament, 459 Thompson, attitude toward, 493 Veblen, compared to, 492 voluntarism, 471 War and Peace (Proudhon), transla­ tion of, by, 473

596

INDEX

women and, 470-47» writings in Italian, 460 Vanzetti, Luigia, 278 "Vanzetti's Last Statement" (Thomp­ son), 355, 460, 505. 555 (note 31) Vaughan, E. J., 360 Verse, of the Sacco-Vanzetti Case, 321, 378-392 general considerations, 378, 384-385, 392 number of poems, 385 themes, 378-384 Victory Is in Sight, 235 Vienna Reichspost, 322 Viking Press, 518 Villard, Oswald Garrison, 293 Wade, L. L„ 62, 75, 91, 92 Wadsworth, Lincoln, 74 Wait, William C., 18 Walker, Joseph, 246 Wall Street explosion, 216 Walled in This Tomb, 348-349, 362 Wallerstein, David, 211 Walsh, Frank P., 211 Walsh, Senator Thomas J., 230 War and Peace (Proudhon), 473 "War on the Alien in New England," 201 Ward, Rev. Harry F., 258 Wardner, G. W., 294-295 Wardwell, Allen, 262 Warner, Arthur, "Sacco-Vanzetti-*a Rea­ sonable Doubt," 239 Washington Newsf 248 Waterbury (Conn.) Republican, 248 Way the World Is Going, The (Wells), 34« We Accept with Pleasure (De Voto), 364, 421, 429-434» 5°2 "We Never Forget," in General Defense Bulletin, 358 "We Submit," see Boston Herald Wells, Mrs. G. P., 518 Wells, H. G., 421, 427 article in Sunday Express, 255-256 estate of, 518 Mr, Blettsworthy on Rampole Island, 322, 421, 424-426 New York Times articles, 342-343 opinion of American culture, 256 "Outrages in Defence of Order," 342 Way the World Is Going, The, 342 "Wells Speaks Some Plain Words to Us," 342 Weyand, Fred J., 123 White, William Allen, 214, 263, 270, 359, 377

letter to Fuller, 263 opinion in 1927, 359 opinion in 1937, 359 White v. State, 195-196 Whitman, Charles S., on adversary sys­ tem of litigation in England, 187188 Whitney, Marian P., 293 "Why I Believe in Capital Punishment" (Fuller), 251 Wickersham Report, 545 (note 25) Wiggin, Joseph A., 300-301 Wigmore, J. H., 262, 269, 278, 509 controversy with Frankfurter, 260-262, 353 Wilkinson, Ellen C., 237 Williams, Harold P., 58, 220 answer to Proctor's affidavit on ar* rangement with prosecution, 129 Williams, Roger, xv Williams, Tyrrell, 211 Wilson, Edmund, 324, 339 Winchester shell, see Shell, "Fraher" Wind, Max E., 31 Winslow, Mrs. Gertrude L., 324, 463 Winterset (Anderson), 361, 362, 363, 393, 4 η-420, 503 Wirin, Abraham, 267 Wise, Rabbi Stephen S., 257 Witch hunts, in Sacco-Vanzetti verse, 381-38« Witchcraft, 347 Witner, 55 Wolff, David, 379 Wood, Charles Erskine Scott, 502 "God's in His Heaven—All's Wrong with the World," 421, 427-429 Wood, Clement, "Golgotha in Massa­ chusetts," 380 Woodhouse, Mrs. Chase G., 351 WooIIey, Mary E., 293 Workers Defense Conference, 206 Workers Defense League, 224 Workers Defense Union, 206, 224 World Opinion Says They Shall Not Die, 236 World Tomorrow, 329 Writ of certiorari, requested from Su­ preme Court justices, denied, 25 Writ of habeas corpus, 24-25 Yeomans, Henry A., Abbott Lawrence Lowell, 309 (fn.) Young Communist League of Nice, 230 Yrondy, Pierre, Sept ans d'agonic: Ie Arame Saeeo-Vanjtetti, 393, 394-396 Zurich, labor group opinions, 231