The next move was Governor Fuller’s. He who a few weeks before had

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.

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