intellectualism of Cambridge across the river, and while the _Herald_
editorial might jar Boston, his letter would cause the greater
explosion. Even if the Supreme Judicial Court should rule against
Thompson’s appeal from Thayer’s last decision, it was now clear to
the more knowing Bostonians that the matter would not rest there.
Many felt that Governor Fuller would commute the death sentence to
life imprisonment.
* * * * *
When Judge Thayer brushed aside the Madeiros evidence, Sacco felt
that nothing could now save him from his fate, neither lawyers nor
appeals nor—hardest of all to face—the embattled proletariat. “I
don’t care how it all ends, if it only ends,” he told one of his
visitors.
At Christmas Mrs. Jack’s daughter Elizabeth brought Sacco apples and
candy and—what moved him much—a present for his “dear darling Ines.”
He wrote to Mrs. Jack in an afterglow of optimism that he hoped
from the bottom of his heart “that the new year would bring us a
freedom and in the embrace of mine and in the grant human family.”
But it was something he had given up believing, and he had already
requested Thompson to take no more legal steps on his behalf. The two
prisoners’ joint Christmas message to their supporters sounded much
more like Sacco than Vanzetti:
_We are convinced that our murderors are determined to burn us within
this, 1927, and that it is most probable that they will succeed. And
our hearts move is that the new year may give us liberty or death—but
menwhile we are ready to bear our cross to the last._
Vanzetti’s moods alternated. There was a black period in the autumn
when he considered going on a hunger strike. Close to his cell
he could hear workmen constructing a new prison electric plant,
following the Boston Edison Company’s refusal to provide the
Commonwealth with current for executions. But even in his darkest
moods, when he thought of himself as a vanquished man, the shadow
would in a few days be overcome by his basic optimism, just as he
could forget the jangle of the electric-plant construction when he
learned that Mrs. Corl, the wife of the Plymouth boatbuilder, had
kept a vigil lamp lighted before the statue of the Virgin for the
last six years for the grace of his liberation. Something in her
naïve faith gave strength to his disbelieving heart. At times he
would attend the prison’s Christian Science services, not out of
any belief but merely to be able to sit in the spacious, almost
empty chapel and glimpse the sky again through the barred windows
and the sunshine reflecting on the gilt dome of the State House.
To the chaplains he remained generally hostile. Unlike Sacco, he
could still be hopeful of the higher court and of Governor Fuller
as an independent-minded man. Even so, he refused to apply for a
pardon. “Why should I,” he said, “when I am innocent?” Nevertheless
he was still willing to cooperate with his lawyers and the Defense
Committee. He began to translate Thompson’s brief into Italian for
distribution in Europe.
In one and the same letter Vanzetti could announce that he was
doomed, and then turn with lyric nostalgia to his father’s garden at
Villafalletto:
_It takes a poet of first magnitude to worthly speak of it, so
beautiful, unspeakably beautiful it is ... the singing birds there;
black merles of the golden bick, and ever more golden troath; the
golden oriols, the gold-finches, the green finches, the chaf-finches,
the neck-crooking, the green ficks; the unmachable nightingales, the
nightingales over-all. Yet, I think that the wonder of my garden’s
wonders is the banks of its path. Hundreds of grass, leaves of
wild flowors witness there the almighty genios of the universal
architecture—reflecting the sky, the Sun, the moon, the stars, all of
its lights and colors. The forgetmenot are nations there, and nation
are the wild daisies._
Christmas—his seventh behind bars—brought a cold snap, etching the
jail windows with frost. Among Vanzetti’s letters and Christmas cards
were a number of books—_The Life of Debs_, Jack London’s _Essays on
Revolt_, and, accompanied by a necktie from Mrs. Evans, Emerson’s
_Essays_. Emerson he found “so exquisitely anarchist,” delighting “at
the lecture of _Politics, Nature and New England Reformers_.”
Just after Christmas he wrote to Alice Stone Blackwell:
_I know perfectly well that within four month the Massachusetts will
be ready to burn me._...
_So every hope to get reparation and freedom having been killed in me
by each and all the words and deeds of Massachusettes black gowned,
puritanic, cold-blood murderors, on the first day of the 1927, I
formulated the wish, the wove, that I am get out within this year, no
matter if alive or death. And I hope with all my force that this will
come true. By it, I do not mean suicide._
As the short and frigid days moved toward the final year, the
clamor from overseas echoed more loudly within the United States.
The obscure foreigners who had stood up in court that sultry summer
evening of 1921 to hear the foreman, Ripley, pronounce the verdict
against them could at least console themselves that their names
had been blazoned round the world. They who had traveled on the
swaying Brockton trolley talking of a Sunday meeting of a few dozen
immigrants, now could conjure up hundreds of meetings in dozens
of countries. Proudly they accepted the fact that they had become
symbols.
FOOTNOTES:
[22] In June 1960 the National Broadcasting Company presented
Reginald Rose’s television play, _The Sacco-Vanzetti Story_. For
those unfamiliar with the case it may have seemed an entertaining
melodrama. As a balanced presentation of facts it was a failure.
Eugene Lyons turned off his television set in disgust. Harry King,
one of the four surviving jurors, and the only one who saw the
presentation, commented: “Well, I laughed. Quite a show. My only
reaction is that it is hard to reconcile anything I saw with the
actual trial.”
[23] G. B. Shaw understood this xenophobia well. “Americans must
decide for themselves” he wrote to Upton Sinclair, “whether they will
slaughter their Saccos and Vanzettis and Mooneys; for the moment
a foreigner interferes, to yield to him would be an unbearable
humiliation; perish a thousand Saccos first.”
[24] This was also Darrow’s own opinion when some time later he came
to Boston and talked with Thompson and Felicani.
CHAPTER SEVENTEEN
1927
The state prison’s new electric plant went into use five days after
New Year’s, when three young men known as the Carbarn Bandits were
executed. Following executions the warden customarily served a buffet
supper to the witnesses and the press, so when on January 4 Vanzetti
noticed three hams being cooked in the kitchen for the warden’s
house, he knew it was the bandits’ turn.
The three—Edward Heinlein, John Devereaux, and John McLaughlin—had
held up the night cashier at the Waltham carbarn on October 4, 1925;
while escaping, Devereaux had shot and killed an elderly night
watchman who tried to stop them. They were caught the same night, and
by next day the press had already labeled them the Carbarn Bandits.
At their trial Devereaux admitted that he had fired the fatal shot
but said he had meant to fire at the ground. He told the court that
he did not see why his two friends should suffer for what he had
done. Nevertheless, all three were found guilty of first-degree
murder and sentenced to death. As faithful if erring Catholics they
walked to the chair accompanied by a priest, and their last look was
at a crucifix held before their eyes.
In the six months between their conviction and their execution,
their fate caused more of a stir locally than did the postponed fate
of Sacco and Vanzetti. All three had served in the Army during the
war, and Devereaux had been wounded. They were Irish by descent, and
whatever their faults, they had remained true to their church. The
mothers of the three organized a Massachusetts Clemency Committee and
presented the governor, Alvan Fuller, a petition of 120,000 names
that included those of three ex-governors. Protest meetings were
held all summer and autumn. In a desperate last appeal the mothers
visited Fuller in his office and got down on their knees in front of
him to pray for their sons’ lives. But the governor was adamant. As
he had often publicly stated, he believed in the death penalty as a
deterrent, in less sentimentality about murders, in modernization of
the law, and more religion in life.
If Fuller had been a politician rather than a businessman he
would not have hesitated about commuting the sentences, for no
Massachusetts politician in his senses would have let three
Irish-Catholic ex-servicemen go to the chair. To the astute it had
long been clear that the descendants of the Famine immigrants, who
had taken over Boston in 1902 with the election of Mayor John F.
“Honey” Fitzgerald, would before long take over the Commonwealth.
That Fuller’s belief in the salutary effects of capital punishment
could overrule his concern for this powerful voting bloc would make
it that much more difficult for him later to consider clemency
for two anarchist atheist alien slackers. The execution of the
Carbarn Bandits filled the Boston Irish with resentments that were
transferred with accrued bitterness to Sacco and Vanzetti.
Fuller prided himself on not being a politician. His favorite maxim
was Calvin Coolidge’s “More business in government, less government
in business,” and he had forty million dollars to prove his point.
Never had he bothered to conceal his contempt for the Republican
bosses of Massachusetts with their well-established escalator system
of advancement that he was rich enough to disregard. In fact, his
contempt for them and his successful defiance of their candidates had
made him seem outside the Commonwealth something of a La Guardia-type
liberal. In 1912 he had broken with the Republican State Committee
to support Theodore Roosevelt’s Bull Moose party. In 1916, again
in disregard of the state committee, he had run for Congress as an
independent, defeating the regular Republican candidate.
During two terms in Congress he distinguished himself chiefly by
attacking abuses of the franking privilege and the mileage allowance.
However, he did not hesitate to defy Massachusetts’ senior senator,
Henry Cabot Lodge, by supporting the League of Nations. In 1920 he
again frustrated the state Republican bosses by taking the nomination
for lieutenant governor away from their designated candidate. He
served the conventional two terms as lieutenant governor before
defeating James Michael Curley for the governorship in 1924. In 1926
he was easily re-elected.
As he approached his fiftieth birthday he could take satisfaction
in being both the leader of his state and the richest man in
Massachusetts. His granite-faced neo-Renaissance mansion on the water
side of Beacon Street occupied the site of two brownstone town houses
that had belonged to Mrs. Jack Gardner. Old ladies might shrug their
shoulders and whisper behind his back at the Longwood Cricket Club,
but no one could deny him entree anywhere. The lean bicycle mechanic
had become portly in middle age, his confident asymmetrical face
plumping over his stiff collar. His lobeless ears clung close to his
head, his thinning hair clung to his scalp, and he had curiously
amber-tinted eyes that many found disconcerting. His mouth looked
like a dollar sign set sideways. On the stubby little finger of his
left hand with its moonless nail he wore a gold signet ring with the
resurrected Fuller crest. When in an affable mood he used to say he
would like to run a newspaper and teach Sunday school.
The unspoken image that fluttered in his mind during his final term
as governor was the Republican National Convention of 1928 with its
shimmering prospect of the Vice-Presidential nomination. It was
not an impossible thought after all, for mousy Calvin Coolidge had
managed it eight years before from the same governor’s chair on the
strength of one of his copybook maxims pronounced during the Boston
police strike: “There is no right to strike against the public safety
by anybody, anywhere, any time.”
* * * * *
On January 27 and 28, 1927, in Boston’s Pemberton Square Courthouse,
Thompson, assisted by Ehrmann, appeared before the Massachusetts
Supreme Court to argue against Judge Thayer’s denial of the Madeiros
motion. It was the coldest weather in two years, with a high wind
curling up State Street and the fringes of the harbor beginning to
freeze. The courtroom was almost empty as Thompson developed his
thesis. Not until he mentioned Judge Thayer could one sense the
restrained passion behind the quiet voice:
“I must refer to a thing I am almost ashamed to mention. The judge,
having spent a page and a half of his decision in vituperation of
myself, suggested that my belief in the innocence of these defendants
was due to a mental disease. He also suggested that there had been
fraud and deceit in the methods used in procuring this evidence.”
Thompson then pointed out various misstatements in Thayer’s
decision—such as that the Supreme Court had approved the jury’s
verdict, when it had done nothing of the kind—and accused him
of being so overwrought by the case that he was not capable of
reasoning “with a calm mind free from impartiality.” Beyond all the
renewed arguments about Madeiros, the Department of Justice, and
other points, Thompson’s chief contention was that the defendants
were entitled to a new trial because there had been an abuse of
judicial discretion.
In the thin winter light of the musty echoing courtroom the stiff
faces of the five justices looked like Copley portraits of a century
and a half earlier. Chief Justice Arthur Prentice Rugg presided,
flanked by Henry King Braley, William Cushing Wait, John Crawford
Crosby, and Edward Peter Pierce—New England names, bloodless New
England features. To Thompson they seemed as chill as the city
streets outside.
Vanzetti was pessimistic about the appeal:
_We know that in a case of such nature as ours, legallity alone
is insufficient. Mr. Thompson has known to place the case in such
perfect manner before the Supreme Court, that if the justices wish,
they can give us justice now.... Therefore, if they are going to a
refusal, it would unmistakably prove that they have prostituted their
consciences, their intellect, and will to a categoric order of an
invisible and trascendental master or class._
The appearance of Felix Frankfurter’s article, “The Case of Sacco and
Vanzetti,” in the March issue of the _Atlantic Monthly_ initiated the
final world-shaking stage of the case. The _Atlantic_ still remained
the voice of conservative intellectual America. For seventy years
its staid ocher cover with the oval intaglio cut of Poseidon and
his sea horse had borne the names of Lowell, Longfellow, Whittier,
Emerson, Hale, Holmes, James, and Howells. That it should now
feature an article by a Harvard Law School professor attacking the
trial, the jury, the witnesses, the verdict, and the Massachusetts
judiciary, gave the affair at once a national significance. The
stirrings in Europe, the mutterings in New England had now become
articulate. Frankfurter’s article was like a lighted fuse leading to
a powder magazine. Sacco and Vanzetti became familiar names in all
the forty-eight states, not just among the urban left-liberals but in
the suburbs and the small towns and the women’s clubs and the little
brick Carnegie libraries.
For most of those who read it, Frankfurter’s attack was their factual
introduction to the background of a case they had heard about only
vaguely. Deftly and concisely the law-school professor explained
how the two men had come to be arrested, described the method of
selecting the jury, Katzmann’s harrying cross-examination of Sacco,
Judge Thayer’s patriotic rhetoric, and the later discrediting of
various witnesses. Accepting the hypothesis that the Morelli gang
committed the South Braintree murders, he asserted “with deep regret”
that Thayer’s ruling on the Madeiros motion was “a farrago of
misquotations, misrepresentations, suppressions and mutilations.”
The weakness in Frankfurter’s article was that basically the
prosecution had a more formidable case against the two men than
readers of the _Atlantic_ would have gathered. Of the expanded book
version that appeared the same month, Justice Oliver Wendell Holmes
wrote to Harold Laski:
_My prejudices were all with Felix’s book. But after all, it’s simply
showing, if it was right, that the case was tried in a hostile
atmosphere. I doubt if anyone would say there was no evidence
warranting a conviction._
With the appearance of the _Atlantic_ article, Frankfurter became the
moving spirit of the Sacco-Vanzetti defense. Even Thompson turned
to him. His were the final decisions as to tactics and action.
Lithe, dark, youthful in manner but obviously the professor, the
forty-five-year-old Frankfurter was as intense as he was opinionated,
the picture of academic intellectualism without its self-deprecatory
pose. Whenever he appeared at the Hanover Street headquarters he
always managed to look as brisk as if he had just walked over from
Cambridge—as he sometimes had. He and Governor Fuller shared a common
start from nothing and were both driven by the same fierce will to
succeed, but the governor saw success as the power of money while the
professor saw it as the power of the mind.
Felix Frankfurter had been sure of himself from the day he arrived
in New York from Vienna as a twelve-year-old immigrant, bookish and
eager, speaking no English yet shortly afterward leading his classes
in the Lower East Side’s Public School 25. At the Harvard Law School,
which he entered more or less by chance in 1903, he stood for three
years first in his class, receiving the highest honor of becoming an
editor of the _Law Review_. After graduation he served as assistant
to Secretary of War Henry Stimson in the Taft administration,
continuing briefly into Wilson’s first term. Just ten years after the
unknown Frankfurter had entered the Harvard Law School, Professor
Edward Warren enticed him back with an invitation to join the faculty.
Frankfurter had not concerned himself with the Sacco-Vanzetti case
during the trial or immediately following it. Only when he saw
the headlines in the autumn of 1923 that Thompson had accused the
prosecution of a frame-up in regard to Captain Proctor’s testimony
did he begin to take an interest. After he read that Proctor had
sworn that when he said “consistent with” he did not really think the
bullet had gone through the gun, his neutrality evaporated. And when
Katzmann, in reply to Proctor, said he had not “repeatedly” asked the
question, that settled it. Frankfurter wrote his _Atlantic_ article
with, as he himself boasted, the intention of jolting minds.
* * * * *
On April 5, in the Pemberton Square courthouse, the Supreme Court
handed down its decision. Guards took their places all through the
cavernous building; deputy sheriffs and court officers patrolled
the corridors. Guards were also placed in front of the railings of
Governor Fuller’s Beacon Street mansion and sent to Judge Thayer’s
home in Worcester.
The decision upheld Judge Thayer at every point. Through the late
afternoon the news, first chalked up on the bulletin boards of
Newspaper Row on Washington Street, spread through the business
district like wildfire. Everyone wanted to know just one thing: What
could the two Italians do now?
According to Massachusetts law the court was limited to determining
whether the trial judge had committed any errors of law or abuses of
discretion. These were the limitations rigidly held to by Justice
Wait in his opinion. Could Thayer conscientiously, intelligently,
and honestly have reached the result he has reached? the court asked
itself collectively, and answered, through Justice Wait, that he
could have.
_The granting or the denial of a motion for a new trial of an
indictment for murder rests in the judicial discretion of the trial
judge, and his decision will not be disturbed unless it is vitiated
by errors of law or abuse of discretion._
The question of the guilt or innocence of the defendants was not a
matter for consideration. Citing a civil case, Davis _v._ Boston
Elevated Railway, as precedent, the court ruled:
_It is not imperative that a motion for a new trial of an indictment
for murder based on newly discovered evidence be granted, even though
the evidence is newly discovered, and, if presented to a jury, would
justify a different verdict._
The Massachusetts tradition, sternly enforced by Chief Justice Rugg,
was that Supreme Judicial Court decisions were unanimous, but that
behind the ruling of April 5 there may have been some suppressed
stirrings of doubt was indicated by an incident related by Herbert
Ehrmann. In 1938, as he was addressing a Boston Bar Association
memorial meeting in honor of Thompson, he noticed Justice Pierce in
the audience. Pierce had been a member of the Massachusetts Supreme
Court during the entire period of the Sacco-Vanzetti case, and
Ehrmann felt uneasy over the critical remarks he was about to make.
When, however, the meeting was over, the justice came forward with
tears pouring down his cheeks, grasped Ehrmann’s hand, and said in a
broken voice, “Thank you! Thank you! Thank you!”
* * * * *
Following the Supreme Court’s decision, District Attorney Wilbar
asked for imposition of sentence, and a special session was called
at the Dedham courthouse for Saturday, April 9. In Charlestown,
meanwhile, Warden Hendry transferred Vanzetti to the state prison’s
grim and ancient Cherry Hill section “to protect him from the
unwelcome attention of curious visitors.”
Outside Massachusetts the protests were immediate. A Committee for
the Defense of Victims of Fascism and the White Terror sent a wire
from France to President Coolidge, signed by Henri Barbusse, Romain
Rolland, and Albert Einstein, requesting the liberation of Sacco
and Vanzetti. From Berlin the International Red Aid cabled Governor
Fuller demanding “pardon and release in the name of half a million
members.” The Regional Federation of Labor in Buenos Aires called a
forty-eight-hour strike to protest the court’s decision. Letters,
telegrams, and cables poured in on Governor Fuller, at whose ornate
wrought-iron gate the problem had now been left. Privately, Fuller
considered that the court’s word should be the last word, but
publicly he announced that the evidence in the case had never been
presented to him and that consequently he had not formed any opinion.
On April 7, as if to emphasize his detachment, he bought another
Gainsborough portrait, “Master Heathcote,” from Sir Joseph Duveen.
The day of the sentencing broke cold and damp and gray. At
Charlestown, Vanzetti was waked at five o’clock. He ate his breakfast
of frankfurts, baked potatoes, bread, and coffee, then—since he
would not be returning immediately to the state prison—wrapped his
belongings in brown paper. After he had finished he went to the
rotunda where he sat calmly smoking his pipe until the car came to
take him to Dedham. As he left he waved a friendly good-by to Warden
Hendry.
He rejoined Sacco in the library of the Dedham jail. Again they
embraced gravely. Shortly before ten a bus took them to court. They
left surrounded by a dozen deputies and three policemen with shotguns.
The courthouse was again surrounded by police with rifles. Admission
was by ticket, obtainable only by those connected with the defense
or the prosecution, plus the curious-minded with political pull.
Felicani, Mary Donovan, and Mrs. Evans’ secretary Anna Bloom arrived
at the courthouse a little after nine only to find the iron gates
locked. A janitor refused to let them in until ordered to by a state
trooper. Mrs. Evans, who had broken her ankle recently, limped up the
steps in the company of Sarah Ehrmann and Mrs. Gertrude Winslow, the
secretary of the Community Church. Rosina Sacco did not appear. The
prosecution was represented by Albert Brouillard and state detectives
Fleming and Ferrari.