announced that he had not formed an opinion had now become the court
of last appeal. In a few more weeks a stroke of his pen would have
to decide whether it would be freedom for the two men, commutation
of their sentences to life imprisonment, or death. To Thompson,
who visited him privately, he announced that he could make no
investigation unless he was requested to do so by Sacco and Vanzetti.
Thompson promised to see that such a request was made.
The written and telegraphed appeals, requests, and suggestions
now reaching the governor by the hundreds were signed with such
nationally known names as Rabbi Stephen Wise, novelist Gertrude
Atherton, President Emeritus David Starr Jordan of Stanford
University, and biographer Ida Tarbell. A Massachusetts communication
was signed by author and doctor Richard Cabot; John Hays Hammond,
the North Shore millionaire industrialist; Harvard philosopher
William Ernest Hocking; Harvard teacher and essayist Bliss Perry;
and historians Samuel Eliot Morison and Arthur Schlesinger. The name
of Dean Pound of the Harvard Law School headed a petition signed by
Francis Sayre, the son-in-law of Woodrow Wilson.
The tone of most of these appeals was conciliatory, not to say
flattering. That most tirelessly—some thought tiresomely—liberal
of clergymen, John Haynes Holmes of New York’s Community Church,
expressed his strong faith in Governor Fuller’s fairness. Fiorello La
Guardia, who had served with Fuller in Congress, wrote optimistically
to the New York _World_ that the governor was “free from bigotry
and prejudice and will investigate fairly and fully.” The _Nation_
believed, in an open letter, that the governor would fearlessly
face the great issue that had aroused not only masses of Americans
but millions all over the world. Only the Communists, seeing no
advantage from their point of view in conciliating anybody, kept up
a counterpoint of invective, the _Daily Worker_ denouncing Fuller as
“that toothless troglodyte and flunky of the mill owners.”
Cardinal O’Connell, as urbane and adept a weigher of words as could
be found in the Commonwealth, suggested an investigating commission
indirectly when he urged that the governor reach his decision “by
making use of every human aid that he can possibly gather.” Fuller
himself, in an unexpected interview with Joseph Lilly of the Brooklyn
_Eagle_, said that he did not know whether to appoint a commission or
go over the case himself.
There were rumors that Charles Evans Hughes would soon head a
Sacco-Vanzetti commission, then contrary rumors that there would be
no commission after all. The _Transcript_ continued to denounce the
substitution of “public opinion in place of judicial conclusions.”
Nine out of ten of the city’s lawyers were agreed that when the
courts had spoken, contrary voices should become mute. Robert
Goodwin and Joseph Proctor, Jr., of the august firm of Goodwin,
Proctor, Field and Hoar, felt it their civic duty to try to offset
the unaccountable aberration of Ropes, Gray, Boyden and Perkins by
declaring that for Fuller to appoint a fact-finding commission would
be an abdication of the powers of his office.
Although the Massachusetts Supreme Court could not reply directly
to its critics, it managed to find a semiofficial defense in the
pamphlet “Sacco and Vanzetti in the Scales of Justice,” written and
published by its Reporter of Decisions, Ethelbert Vincent Grabill.
For the reporter, the Massachusetts legal structure was a parthenon
inherited from the Puritans, and he claimed that he had been moved
by the spirit of his ancestors to attempt to “bring a wandering
citizenry back to confidence in our courts, in their proceedings,
and in our Governor, and fortify and strengthen those who have not
wandered.” Grabill was untroubled by the proceedings at Dedham. For
him it was “doubtful if Judge Thayer’s charge was ever equalled for
clearness, completeness and fairness.” He considered it presumptuous
for anyone to ask the governor to appoint a review commission, and
complained that “having persons passing around ... petitions on the
subject tends to stir up opposition to our Constitution and laws.”
Not until two weeks after the sentencing did Fuller finally ask
District Attorney Ranney for the Sacco-Vanzetti records. On May 4
Thompson brought the governor a formal petition in which Vanzetti
asked to be set free from his sentence. Carefully Vanzetti avoided
the word _pardon_ with its connotation of admitted guilt; he
emphasized that he was asking for justice, not mercy. He pointed out
to the governor that it would be unlikely for robbers to linger near
the scene of a crime “in order to address public meetings in behalf
of persecuted radicals.” Beyond this, the lengthy presentation was
mostly a recapitulation of points that had been made in the various
motions—Proctor’s equivocations, the dubious character of the chief
witnesses, Judge Thayer’s prejudice, and the issue of radicalism.
The petition came from Vanzetti alone. True to his resolve to take no
further part in the defense, Sacco refused to sign it. As a result,
he was again examined to determine whether he should be considered
mentally responsible. Dr. Abraham Meyerson, who conducted the
examination, reported that:
_There is no question that the seven years of his incarceration,
mainly without employment and entirely preoccupied by his situation,
have helped bring about an abnormal state in which his fanaticism
has been intensified to an obsession. Though he is not insane, his
inaccessibility to all reasoning and his emotional reactions are
pathological. His mind has lost the flexibility which enables a man
to adjust normally to situations._
Governor Fuller received the petition without comment. On May 8 he
tripped going upstairs and tore a tendon in his left leg. While he
was confined to his Beacon Street house, reporters noted that among
his visitors were the McAnarney brothers and ex-District Attorney
Katzmann.
The first real inkling of what was going on behind the wrought iron
gates of 150 Beacon Street was provided on May 12 when Will Rogers,
the gum-chewing lariat-swinging comedian-philosopher, appeared
in Boston for a one-night benefit at the Opera House. Before the
performance he had visited Governor Fuller. “I don’t know anything
about this murder case that is interesting you in Massachusetts,”
Rogers told his Opera House audience, “but I want to tell you that
your governor is working on it. I stopped in on my way here to sit
with him for a few moments and I found him in his room with crutches
by his side. He had three or four pistols, and he had a big pile of
books, the record of the case, and he is working away at it. I don’t
know what he is going to decide, of course, but I do know that he
isn’t going to be skeered into deciding it, and I do know that when
he makes his decision, it’s going to be a decision he believes right
down through him. He’s terribly anxious about it, but he is going to
get all the facts.”
It was clear at last that Governor Fuller was going to do his
own investigating. Day after day now the newspapers recorded the
appearance of witnesses old and new, first at 150 Beacon Street and
then at the executive chambers in the State House. Through the late
spring weeks the governor interviewed the eleven surviving Dedham
jurors and the twelve from Plymouth, Judge Thayer, and as many of the
original witnesses as could be located, as well as the “suppressed”
witness, Roy Gould. One day it was observed that he took Beltrando
Brini to lunch. Another day he spent several hours with Lola Andrews’
son, now Corporal Hassam of the U.S. Marine Corps. Assisting him were
his sharp, bald, thin-lipped private counsel, Joseph Wiggin, his
confidential secretary, Herman MacDonald, and Lieutenant Governor
Frank Allen. Reporters could get no information from the gruff
MacDonald, whose function was to act as a buffer between the governor
and the external world. This function he exercised with a gusto that
earned him the nickname of Hard-boiled Herman and the dislike of
newspapermen and State House employees generally.
When the Defense Committee protested against the secrecy of the
governor’s hearings, Fuller began consulting with Thompson and
Ehrmann. He refused, however, to allow representatives of the defense
to confront witnesses in his presence.
Vanzetti was convinced that the governor must have had him and
Sacco in mind when he wrote his article “Why I Believe in Capital
Punishment,” for the December 1926 issue of _Success Magazine_. He
wrote Mrs. Evans not “to expect that Fuller will stand against the
judiciary, the middle class, the big money in behalf of two damned
dagos and anarchists.”
Nevertheless, as the weeks wore away with their succession of
witnesses, Fuller appeared uneasy and uncertain. Robert Lincoln
O’Brien, sitting next to him at a Boston University commencement
dinner, hesitantly brought up the subject of Sacco and Vanzetti. Far
from objecting, Fuller seemed eager to talk about it. He said he felt
it was abhorrent that one man should have the decision in a capital
case, that O’Brien would be surprised at the way much of the trial
testimony had collapsed. According to O’Brien’s later account, Fuller
then told him he was going to settle the case in such a way that he
could live with his conscience.
* * * * *
As in Elizabethan tragic drama, there now occurred a clown’s
interlude, furnished by Edward Holton James, the bearded pipe-smoking
son of William and Henry James’ black-sheep alcoholic brother,
Robertson. James was a dilettante with a town house on Mount Vernon
Street and a country estate in Concord that had two houses, one for
his wife and one for himself, where he built and repaired musical
instruments. He described himself variously as a musician and as
a lawyer—though whether he practiced either law or the violin was
questionable. “The millionaire pacifist,” as the newspapers tagged
him, had written a shrill pamphlet on the Sacco-Vanzetti case, a
counterblast to Grabill’s effort, in which he announced:
_You had a crazy judge and jury in Plymouth. You had the same crazy
judge with another crazy jury in Dedham. You had a crazy Supreme
Court of Massachusetts, sitting in the Court House in Boston, saying
it was all right. The whole lot of them ought to be sitting in the
insane asylum._
On April 15 James drove to South Braintree to re-enact the crime and
demonstrate the innocence of Sacco and Vanzetti. He had planned to
recruit his cast from members of the Harvard Liberal Club but at the
last minute found himself speeding through the Blue Hills with only
a solitary lawyer friend, Abraham Wirin, to play a bandit’s part.
At South Braintree their efforts to pick up local volunteer actors
drew a blank, and Thomas Fraher, the Slater & Morrill superintendent,
refused to let them into the factory. They glimpsed a moment of
martyrdom when the chairman of the board of selectmen, Edward Avery,
tried to stop their two-man show, but the new police chief, John
Heaney, waved Avery back and told them to go ahead. A few days later
James returned alone to make some pencil sketches and this time,
while heads gawked from all the factory windows, Avery gave him
fifteen minutes to leave town. After telling Avery to go to hell,
James at last had the satisfaction of being arrested and charged with
disturbing the peace. He left twenty dollars as bail money—which
he later forfeited—and returned triumphantly to Boston in time for
lunch.
The pigmy sparrings of Grabill and James were succeeded by a battle
of giants when on April 25 Dean John Wigmore of the Northwestern
University Law School commandeered the front page of the _Transcript_
to answer Frankfurter’s _Atlantic_ article. Wigmore was one of
the great scholars of his day, and his monumental treatise _The
Law of Evidence_ remains one of the classics of Anglo-American
law. A Harvard graduate of the class of 1883, he was furious that
Frankfurter should have so influenced intellectual and university
opinion. He did not once mention Frankfurter by name but referred to
him with surly pedantry as the “plausible pundit.”
“To vindicate Massachusetts Justice, I crave the opportunity of
your pages to address the lawyers of the Commonwealth,” he wrote
the _Transcript_, and that paper obliged by giving his article the
largest headlines since those announcing the 1918 armistice. Calling
the Frankfurter article “neither fair nor accurate nor complete,”
Wigmore protested that the “insinuation of a ‘picked’ jury was
baseless and worthy only of unscrupulous yellow journalism.” He
drummed on the fact that it was the defendants who had first brought
up the subject of radicalism at the trial, asked why Frankfurter had
not mentioned Sacco’s cap, accused him of saying nothing about the
passport found on Sacco’s person the night of his arrest, proof in
itself that the latter did not need to lie from fear of deportation.
He asserted that if the Supreme Court had had any doubts of the
defendants’ guilt it would have been “astute enough to lay hold of
some point of pure law as a ground for ordering a new trial,” and
pointed out that the defense at the time had taken no exception to
Judge Thayer’s charge. Finally, he set off a series of rhetorical
questions that streaked like red rockets across the _Transcript_’s
staid pages:
_Is Massachusetts subject to dictates of international terrorists?
Where has the like ever been known in modern history? The thugs
of India, the Camorra of Naples, the Black Hand of Sicily, the
anarchists of czardom—when did their attempts to impose their will by
violence ever equal in range of operations and vicious directness,
the organized efficiency of this cabal to which Sacco and Vanzetti
belong?_
Frankfurter received a copy of the _Transcript_ in the early
afternoon and sat down at once to write his answer. Frank Buxton,
the _Herald_’s editor, held up the presses so that his reply could
appear in the next morning’s edition. In spite of the speed at which
he had to write, Frankfurter had the advantages of a controlled
temper and a deeper knowledge of the case. With mock mildness he
began by suggesting that Wigmore could not have read the record or
the opinions of Judge Thayer with care. He pointed out that the
prosecution knew all about Sacco’s radicalism before the trial
began—that the prosecution’s excuse for the cross-examination did
not hold. In his _Atlantic_ article he had challenged Judge Thayer’s
statement that the Supreme Court had “approved” the verdict. Wigmore
having denied that Thayer had used the word, Frankfurter now pointed
to the passage where it occurred in the decision on the Madeiros
motion. He also showed that Wigmore had accepted as genuine an
erroneous passage about Sacco’s passport. He admitted not having
mentioned Sacco’s cap in his article, adding that he had dealt with
it in his book.
Two weeks later Wigmore came charging back with another piece
for the _Transcript_ in which he accused his opponent—this time
referred to as the “contra-canonical critic”—of violating Canon
20 of the American Bar Association’s Code of Professional Ethics,
which condemns “newspaper publication by a lawyer as to pending or
anticipated legislation,” and of being behind-the-scenes counsel for
Sacco and Vanzetti. He had also determined that while Judge Thayer
used the word _approved_ once, he had on eight other occasions used
_affirmed_ or some similar neutral word. Insisting that the real
issue was whether the trial had been unfair—“a riot of political
passion” through the misconduct of the district attorney and the
judge—Wigmore held that it had not been. “If the Bar of Massachusetts
should take this body-blow lying down,” he concluded, “they would
deserve to suffer their profession polluted and their bench
bolshevized by agitators financed and led as this case has been.”
In writing to William Howard Taft some months after the executions,
President Lowell of Harvard commented that “Wigmore’s ridiculous
article looked as if there was nothing serious to be said on the side
of the courts.”
Frankfurter was not to be drawn out by Wigmore’s name-calling. His
second reply in the _Herald_ was as detached and temperate as before.
He observed that Wigmore had answered nothing at all about Judge
Thayer’s mistaken interpolation about Sacco’s passport. And it was
still a fact, however Wigmore might feel about it, that Thayer had
used the word _approved_. Frankfurter denied that the Massachusetts
Supreme Court had the power the Northwestern dean attributed to it,
and he concluded with the statement that “in no sense in which
lawyers responsibly use the term have I ever been of counsel for
Sacco and Vanzetti.”
* * * * *
Through May Governor Fuller continued his investigation to the
exclusion of all other state business, sometimes spending twelve to
fourteen hours a day interviewing witnesses and reading documents.
Since the imposition of the death sentences he had received over
17,000 protesting letters and telegrams. Whatever he decided, he knew
there would be an uproar. It was too much for one man.
On June 1, when rumor had all but settled the matter the other way,
Secretary MacDonald announced that the governor had named a three-man
advisory committee to go over all the aspects of the Sacco-Vanzetti
case. The three were President Lowell; Robert Grant, a retired
probate judge; and President Samuel Stratton of the Massachusetts
Institute of Technology.
Several weeks before this appointment Lowell—possibly at the
suggestion of his cousin, Bishop Lawrence—had written Fuller to the
effect that men with no sympathy for anarchists were troubled by the
charges that the Sacco-Vanzetti trial had been unfair and the verdict
unwarranted by the evidence. But even if the president of Harvard
had not so written, he would have seemed to the governor the logical
first choice for any such committee. Lowell incarnated to Fuller
what he most admired: status, family, academic learning, inherited
assurance—the things his Packard money could not buy.
Abbott Lawrence Lowell—the Massachusetts spindle cities of Lowell
and Lawrence were named for his forbears—was the tenth-generation
descendant of the Bristol merchant-trader Percival Lowle who in 1639
at the age of sixty-seven had protested against the ship-money tax
by sailing for America with his family of fifteen. Second of the
two armigerous families in early New England, the Lowells became
one of the few truly dynastic families in America. Abbott Lawrence
was a worthy if not extraordinarily distinguished member of his
clan. Although in his early middle years he had written the solid,
pedestrian _The Government of England_ and been appointed Professor
of the Science of Government at Harvard, without the prestige of his
family name he would never have succeeded Charles W. Eliot in 1907 to
the presidency of America’s oldest university.
He was born in 1856, but his mind was a throwback to a decade earlier
than that—before the Irish invasion—when Boston was still a mellow
self-contained brick town to which he and his sisters and his
cousins and his aunts belonged, and which in turn belonged to them.
To Lowell the mass newcomers—the Famine Irish and the later Italians
and Jews—were an intrusion on the Athens of America that Boston might
have been. Dismayed at the appearance among his undergraduates of
increasing numbers of Polish-born Jewish day students, he at one time
planned to limit their admission to Harvard to a small fixed quota.
Yet Lowell, whatever the limitations of his outlook and sympathies,
inherited a rectitude impervious to external pressures. When, during
the Boston police strike of 1919, Harold Laski—then a temporary
lecturer in political science at Harvard—spoke out in favor of the
strikers, many local Harvard graduates denounced him as a traitor
and a Bolshevik and demanded his dismissal. Lowell himself had
opposed the policemen and even helped furnish strikebreakers from
the undergraduates, but at the hint that the governing boards were
considering getting rid of Laski he announced that if they exercised
this undoubted legal right his own resignation would immediately and
irrevocably follow. In that same year he took the side of United
States entry into the League of Nations in a debate at Boston’s
Symphony Hall with the irreconcilable Henry Cabot Lodge.
When Lowell agreed to serve on Fuller’s committee he did so
reluctantly. From what he had read of the case in Frankfurter’s
_Atlantic_ article, he told Judge Grant, he rather expected to find
that injustice had been done.
Whatever the criticisms that dogged Lowell afterward, he would always
feel that he had done his duty. No man would ever be able to accuse
him of temporizing with what he thought was right. The only question
centered in that qualifying word _thought_. Ferris Greenslet, the
well-disposed chronicler of the Lowell generations, remarked that
although President Lowell had shown all his life an open mind,
“it was perhaps closed at one point only, against any action or
consideration tending to show a flaw in the administration of
justice in the Commonwealth of Massachusetts.” John Moors, Lowell’s
Harvard classmate, was blunter; he told Frankfurter that Lowell was
“incapable of seeing that two wops could be right and the Yankee
judiciary wrong.”
At the time Lowell acceded to the governor’s request he was in his
seventy-second year, still briskly vigorous in walk and manner,
although his Lowell features had begun to droop. It has been said
that people as they grow older tend to resemble their dogs. Lowell,
with his paunched and brooding face, seemed more and more to take on
the look of the sad-eyed cocker spaniel that was the companion of his
walks.
At the outset of the committee deliberations he assumed, as did
everyone else except Judge Grant, that his was to be the controlling
voice, and indeed the officially designated Governor’s Advisory
Committee became known almost at once as the Lowell Committee. Each
day when the three men returned together to the State House after
lunch, Grant and Stratton would head for the basement elevator while
Lowell would spring up the forty-one granite steps leading to the
porticoed entrance to the executive chambers. By the time the other
two arrived they would find him already seated at the head of the
table preparing the agenda.
Grant and Lowell had played together as children on Beacon Hill,
and Grant for all his self-effacing manner resented the automatic
assumption of authority by his younger playmate. Alphabetically his
name had come first on the governor’s list and he had, he felt,
more right than Abbott Lawrence to head the committee even if the
latter had suggested his name to the governor. For thirty years
Grant had been Judge of the Suffolk Court of Probate and Insolvency.
From the cut of his mustache to the cut of his voice he was a wispy
man, with shoe-button eyes and an English accent once removed, part
of the genteel desiccated Boston that after its brief literary
flowering had been withering away for two generations under the
cloud of immigrants. A light versifier and wit, in hours filched
from his not-too-arduous judicial duties he had written unreadable
novels about Boston that were at one time much read in the city.
In 1908, while he was traveling in Italy, some of his luggage was
stolen, whereupon he sent outraged appeals not only to the American
ambassador but to the State Department in Washington; several years
later in his autobiographical _The Convictions of a Grandfather_ he
was still spluttering about Italian thievery. Before accepting his
place on the committee he did have the common sense to ask Fuller
what he would do if he got a divided report. The governor replied
that he would then consider that there was ground for doubt.