Chapter XIII: Trial by Jury

I

“Court!” shouted the bailiff, and pounded on the floor with his “wand.” It was the court-room at Dedham, in Norfolk County, instead of Plymouth, so it was a different bailiff, but he looked exactly like the other, and so did his wand and uniform. There entered the same thin, shrunken old gentleman with white mustache and face like parchment, wearing the same voluminous black silk robe. The lawyers and spectators rose with the same show of reverence, and the bailiff pounded the floor again and repeated the ancient formula: “Hear ye! Hear ye! All persons having anything to do before the Honorable, the Justices of the Superior Court, now sitting within and for the County of Norfolk, draw near, give your attention, and you shall be heard! God save the Commonwealth of Massachusetts!”

Also there was the same district attorney, Fred Katzmann, blond hair and bursting red face, round, pulpy and smooth-shaven, his plump figure and manner of elaborate cordiality to his equals and Prussian sternness to his inferiors. There were three assistants; one of them was a “ticquer,” like Judge Thayer, and presently they were to put on a witness who was a “ticquer,” and there would be three of them in solemn confrontation, all blinking away, but not keeping time. There was Lee Swenson, his lanky western figure outtowering the rest, his face haggard from long nights of work, his black clothes hanging loose about his frame--but he had made the concession to Massachusetts sentiment of getting his hair cut. There was Fred Moore, from California, alert and aggressive; and the McAnarneys, associate counsel, two Irish Catholic brothers, retained in a vain hope of contributing respectability to anarchist wops accused of murder.

The court-room was crowded: a great number of “veniremen,” to be questioned as possible jurors, and many spectators, more than could find seats. The newspapers had been full of the case, the desperate character of the criminals, the radical agitation concerning them, the precautions taken by the government to protect the court. The judge and the district attorney had a bodyguard day and night. Picked men from several police departments of Norfolk County were on duty; fifteen armed men scattered about the court-room, and three more at each door. Male spectators were searched thoroughly as they entered the court-room, and women had their handbags opened. An atmosphere of tension, almost of war.

Vanzetti was brought by armed guards in an automobile from Charlestown Prison, “where he is serving a sentence of from twelve to fifteen years for the Bridgewater hold-up”--so said the papers, and the veniremen read it and talked about it; when they became jurors, they were assumed to be ignorant of Vanzetti’s previous conviction, and all persons who respected the legal system of the Commonwealth would solemnly pretend to accept this fiction. Almost in the center of the court-room was the steel “cage,” shaped like a piano box with fancy grillwork, open in front, a psychological device for overcoming the legal presumption that a wop is innocent until he is proved guilty. The jurors gaze at him locked in throughout the trial, and by the time they are ready to vote they know him as a creature who belongs in a cage. Near the jury box was a tall standard, with an American flag.

A stir in the audience; the bandits were coming! A side door of the court-room opened, and there entered several policemen and then a guard with a handcuff on his wrist, and then a wop made safe with the other handcuff on his wrist, and another handcuff on his other wrist, and another wop chained to that; this second wop with a handcuff on his other wrist, and another guard chained to that: in short, four men chained together, the two on the outside being guards and the two on the inside being alleged bandits; all four symbolizing the fundamental human fact, that slavery enslaves masters as well as servants. It was glorious spring sunshine outside, and here were some hundreds of people who might have been walking in the woods, picking mayflowers, or sitting on the beach engaged in high philosophic discourse; but they were crowded in between four white-washed walls, breathing foul air and shortening their lives, fastened to their seats by manacles of hate, fear and greed.

A few others, held by love and a sense of justice! “Society matrons and college girls,” as the newspapers described them, they sat in silence, watching the procedure, sometimes pretending to be busy with their “fancy work”; doing their refined best to be unaware of being the cynosure of all eyes. These were the “Red sympathizers,” or “pinks,” as patriotic orators derisively called them: women who left homes of luxury to come and meddle with the course of justice, lending encouragement to bomb throwers and assassins, and making things harder for brave officials. Their presence was a continual irritant to the police, who would have liked to lock such troublemakers up, along with their anarchist pets.

And yet, mixed with this anger was awe; for some of these were “blue-bloods,” the wonderful, almost supernatural beings whose names appeared in the society columns of the papers. To Judge Thayer they represented everything in the world to which he aspired, and every now and then he would steal a glance at Mrs. Lois Rantoul--who was a Lowell--or at Mrs. Cornelia Thornwell or Mrs. Elizabeth Glendower Evans, as if to see what they were thinking about him; presently his curiosity would get the better of him, and he would invite one of them to his chambers, and try to convince her that she was mistaken in believing these desperate anarchists to be innocent. He, the judge on the bench, would do that; and little by little the news of it would spread among lawyers and judges up in Boston, who were under the necessity of pretending to hold the dogma of judicial infallibility.

II

Between “Web” Thayer and Lee Swenson there existed an antagonism of temperament, which showed itself the very first hour. In order to practice in Massachusetts the lawyer should have complied with some formality. He had not known this, and now Judge Thayer proposed to bar him from the case. There were hasty conferences among the “blue-blood” ladies, and they kept the telephone wires to Boston busy; with the result that next morning when Lee Swenson renewed his application for judicial courtesy, there were several leading lawyers of the city lined up in a row behind him. Too bad these great ones could not have stayed all through the trial, and restrained “Web” Thayer from making their community a byword throughout the world!

The veniremen, fresh from two days of patriotic celebrations, sat under the shadow of the flag and heard the black-robed old gentleman explain to them what patriotic celebrations are for. “You must remember the American soldier had other duties that he would rather have performed than those that resulted in his giving up his life on the battlefields of France, but he, with undaunted courage and patriotic devotion that brought honor and glory to humanity and the world rendered the service and made the supreme sacrifice. So I call upon you to render this service here with the same spirit of patriotism, courage and devotion to duty as was exhibited by our soldier boys across the seas.”

Such was the mood in which the men of Norfolk County approached this trial. These were the wops who had sent bombs through the mail two years ago--so it was whispered--and the Wall Street explosion had been revenge for their arrest. Now, whoever voted them guilty would never sleep safe in bed. Wives had hysterics at home, and husbands promised to “lie out of it” at any cost; so, one after another, they took the stand and swore to a disbelief in capital punishment, or to an invincible conviction regarding the case. After three days a panel of five hundred veniremen had been exhausted, and still five jurors were lacking. Such a thing had never been known in the history of the county, and newspapers made “streamer heads” out of the desperate dangerousness of the situation.

It happened that on the night of June 3rd, Representative Samuel Wragg was being made the worshipful grand master of the Masonic Lodge of the town of Needham. Fred Katzmann, the district attorney, was a Mason, and the slain paymaster of the shoe company had also been a Mason. His worshipful brothers would not shrink from their duty to his memory. The father of Representative Wragg, a deputy sheriff, appeared without warning at the ceremony, and notified the members of the lodge to appear in court next morning. That surely seemed to violate the law, which specifies that in such an emergency special veniremen shall be summoned “from among the bystanders.” But Judge Thayer overruled the objections of the defense--just as he overruled Lee Swenson’s efforts to question the veniremen.

One of the jurors selected over the protest of the defense was Walter Ripley, an old man who had been chief of police of the city of Quincy. For many years Ripley had watched juries file in and out of court-rooms, but never had he seen one stand and salute the flag. But now, when he was made foreman of the jury, he set a new precedent for the Commonwealth; every time he entered the jury box, he faced the flag and solemnly saluted it. That was his way of “telling the world.” These anarchists--the male population of New England made an obscene word out of it--were trying to “tear down the flag,” and he was going to show them. On his way to court he had met an old friend in the railroad station, and said that he was going to act as a juror in the trial of two “guinneys.” “Damn them, they ought to hang anyway!” said Ripley, according to the affidavit made by his friend several months later.

III

Joe Randall was attending the trial as a newspaperman, representing some labor papers. Also there was John Nicholas Beffel, representing the Federated Press. These two mixed with the other reporters, and sat at lunch with them in the Dedham Inn, and so got all the “inside dope.” This was irritating to Judge Thayer, who naturally assumed that all the newspapermen were on his side, and was accustomed to join them at lunch in their private dining room, and tell them what he wanted to have published. It happened that the Italian Government had sent a representative to attend the trial, to make sure that two Italian citizens received fair play; this gentleman, the Marquis Ferrante, naturally did not understand that there could be such a thing as a “radical” newspaperman, so he talked freely to Beffel, and gave him a carefully worded statement, intended as a broad hint to Judge Thayer. “The Italian authorities are deeply interested in the case of Sacco and Vanzetti, and this trial will be closely followed by them. They have complete confidence that the trial will be conducted solely as a criminal proceeding, without reference to the political or social beliefs of any one involved.”

Beffel made carbon copies of this statement, and gave it to the other men. The judge came in, and after he had finished his lunch and was ready to leave, one of the reporters handed him a copy of the statement. He read it, and did not fail to get its hidden meaning. His face flushed, and with a gesture of anger he said, “Why, that fellow came clear out to my home in Worcester and assured me that the Italian Government had no interest in this case!”

The reporters, seeing that he was in a mood for talk, gathered round. One of them spoke of Fred Moore, with whom the judge had been arguing all morning over the selection of jurors. The old man’s face showed that there was still life in it; his yellow parchment skin became suffused with blood. “What do you suppose that fellow wanted me to ask those veniremen? ‘Are you a member of a labor union? Are you opposed to union labor? Are you a member of a secret society?’”

“Web” went on, his conversation turning into a stump speech, as it always did, in a dining room or a railroad train, on a football field or a golf green, whenever he could get an audience. “Did you ever see a case in which so many leaflets have been broadcast saying that people couldn’t get a fair trial in the State of Massachusetts?” He looked at Joe Randall, for he knew that Joe was the wicked author of these leaflets. His voice rose high and shrill, and his hands shook as he waved them. John Nicholas Beffel, annoyed at the turn of events, stepped closer and said, “I wish to inform you, Judge Thayer, that the statement of the Marquis Ferrante was given out at his express request. He asked me to copy it and give it to the other newspapermen.” But the old man brushed him aside and as he went out, shook his fist, exclaiming to the group of men: “You wait till I give my charge to the jury. I’ll show ’em!”

The reporters stood, dumbfounded. A judge, actually then sitting on the case, going back to court in that mood, to deal with men on trial for their lives! Manifestly, it was a “big story,” and if the newspapermen could have had their way, unhampered by owners, it would have taken the front page of every newspaper in Massachusetts. But newspapermen do not have their way; they do have owners, and have to practice what is known as “taking policy.” The representative of the Associated Press, Jack Harding, advanced the classic formula of his organization, that the matter was “controversial,” and therefore not to be handled. “Controversial,” in the sense of the Associated Press, means anything detrimental to the ruling class of America. It is manifest that members of this class, being all in office or high station of some sort, can speak, and have their utterances count as news of an important and dignified character. It is when their enemies attack them that the “controversy” begins.

The other reporters from the capitalist papers agreed to hush up the incident. Beffel and Joe Randall might break step if they wanted to; but they could only publish the story in a few labor and socialist papers, where it would count for nothing; and they would get themselves barred from the private dining room, and from the precious “inside dope.” The defense counsel agreed that nothing could be done; but of course the story went up to Boston, and caused several lawyers and judges of the city to say that “Web” had gone mad, and that something ought to be done about it--only, alas, nothing could be done, because all the judges, and even the court employees of Massachusetts are appointed for life, and if you were to try to impeach “Web” in the midst of this case, you might just as well turn the Commonwealth over to the Reds and be done with it.

IV

The prisoners sat in their steel cage, gazing about with anxious eyes, trying to understand the complex procedure in a strange tongue: Bart with his heavy drooping mustaches, his melancholy face now deeply lined; Nick, restless-eyed, impatient; both of them pale with a year away from sunshine. They were neatly shaved, brushed and washed, dressed in new suits, with black silk ties and clean collars--doing their best to look like Americans, to impress an American jury. They gazed at the elderly stern-faced men who were to decide their fate: not one foreigner among them, all English names, old Yankee ancestry. Every one on that jury had had a son or near relative in France--and those relatives who were not dead or crippled had been marching in the patriotic celebrations of the last few days.

Assistant District Attorney Williams arose and made a speech to the jury, telling what his side intended to prove. Once more Cornelia listened to that story about a bandit gang, about Boda and Orciani and Coacci, the bandit house and the little shed behind it, the Buick car with the bullet hole in the side, the little Overland car in which the bandits had escaped, after they had “thrown away” the Buick car in the Manley woods. The jury would be taken downstairs to inspect the Buick; they would be taken on a tour, Judge Thayer accompanying, to see the shack and the shed. Cornelia had heard all this at Plymouth, and had seen the prosecution fail to produce any evidence whatever. She had not yet learned about Mike Stewart and his “theory,” derived from the “detective machine”; the whole procedure seemed to her a lunatic’s dream, and she watched in a daze to see what would happen in the course of this second trial.

Exactly the same thing happened as at Plymouth; no evidence appeared. The farce became so apparent that even Judge Thayer could not stand for it. As to Boda he said, late in the trial: “But he is not connected in any way with the murder. Anybody else driving a Buick car, if it was a seven-passenger car, would stand almost in the same relationship.... But there is not one identifying feature.” He forced the prosecution to admit that “Neither Orciani nor Boda was in South Braintree at the time of the murder and there was no concert of action between them and Sacco and Vanzetti as to the murder.” He ordered that “all evidence obtained by the jury on the view at the Coacci barn or shed be entirely disregarded.” But of course it wasn’t disregarded, and the prosecution knew what it had fixed in the jury’s mind. Even after the district attorney had expressly admitted that Orciani was not one of the murderers, he brought him up before the jury as a dark and sinister mystery, challenging the defense to explain why they had not put him on the stand.

Physicians described the wounds of the dead men; and then came the identification witnesses. Lewis L. Wade, a shoe worker, had thought in the Brockton police station that Sacco was one of the bandits; but now he said he was not sure. It was a blow to the police, and as Wade left the stand, one of the officers called him a “piker,” and another muttered, “We are not through with you yet.” A few weeks later Wade lost his job--after seventeen years’ service with the shoe company. Two others who testified for the defense met the same fate. Not all the dangers were on one side!

There came Mary Splaine, bookkeeper of the shoe company, who had run to the window and looked out. Mary was one of the victims of that process of suggestion which prosecuting officials understand well. She had looked at Sacco so many times that she saw him as the bandit; she sat and looked at him once more and described him in minute detail, height, weight, square shoulders, high forehead, hair brushed back and between two and two and a half inches long; “dark hair, dark eyebrows, thin cheeks and clean-shaven face of a peculiar greenish-white.” No one could have asked a better identification--until you considered the opportunity which Mary had had to see the bandit. Then you realized that she was claiming a physical impossibility. She was in a second-story window, eighty feet from the car, and she saw the bandit for the length of time it took the car to travel thirty-five feet at eighteen miles per hour--one or two seconds, amid the wildest excitement and shooting.

The defense confronted Mary with the record of what she had said at the preliminary hearing, after three different examinations of Sacco, “I do not think my opportunity afforded me the right to say he is the man.” Now, surprised and confused, she said, “That is not true. I never said it.” Having a day to think it over, and to be warned that stenographer’s notes are not to be so easily waved aside, she took the stand and corrected her testimony, admitting that she had said what was in the record, but claiming that she had changed upon “reflection.”

The defense tried desperately to break Mary Splaine; but she was one of those covered by the tragic phrase, too late! For her they needed the Pinkerton reports--the evidence of the operative Henry Hellyer, who was in court, and whose knowledge was in possession of the prosecution. He and Captain Proctor, of the state police--another witness, also in court--had shown Mary Splaine a photograph of a criminal called “Tony the Wop,” and Mary had positively identified him as one of the bandits; so the police had set out to get him--and learned that he had been in jail at the time of the crime! Also Mary Splaine had told Hellyer a long story about two men in the factory who had plotted and carried out the banditry. Mary gave their names, and Hellyer made “discreet inquiries” of the owner of the factory, who said the accusation was baseless; the superintendent told him to pay no attention to Mary Splaine, “because she is one of the most irresponsible persons he ever came in contact with.” So read the report of “H.H.,” hidden from the defense until five or six years later.

V

Next came Louis Pelzer, not bright, son of two mutes: the Jewish boy, haunted by the memory of pogroms, and in terror of the police. He had peered out through a window, and amid flying bullets had written down the number of the bandit car, and made note of the bandit so exactly that he could describe even the pin in his collar. The defense lawyers took this pitiful creature in hand, and soon had him mopping the sweat from his forehead. It became evident that he could not understand simple questions, and tangled himself in lie after lie. Yes, he had lied to Robert Reid, investigator for the defense; he had said he did not see anything, because he did not want to be a witness. The defense put on three fellow-workmen of Pelzer’s, two of whom testified that instead of putting up the window to look, he had dived under a bench when he heard the shooting. The third testified, “I heard him say that he did not see anybody.” The district attorney did the best he could in defending Pelzer to the jury. “He was frank enough here, gentlemen, to own that he had twice falsified before to both sides, and he gave you his reason.... He is big enough and manly enough now to tell you of his prior falsehoods and his reasons for them.”

And then the Lola Andrews circus. Three days of the expensive time of the Superior Court of the Commonwealth of Massachusetts was given up to Lola. She told her tale of how, four hours prior to the crime, she had seen two men with a car drawn up by the curb, and how she had talked to them, and the one under the car was Sacco. When the defense began to go into the details of her past life, she fainted impressively, and Judge Thayer ordered the court-room barricaded, so that when Lola was restored, she might pick out the man who had assaulted her in a toilet in a Quincy rooming-house. But that man was apparently an adept in the occult lore of the Hindoos, and possessed the power to dematerialize his body and disappear through the walls of court-rooms; the police could not catch him--but Lola won time to think, and also she won the jury, and Judge Thayer to keep the defense from asking her bad questions. When Fred Moore spoke of her testimony as “hopelessly confusing,” the judge gave him a stern rebuke. “That is an unfair criticism of any witness.”

When the defense had its chance, it put on Mrs. Julia Campbell, who had accompanied Lola on that visit to the shoe factory to look for a job, and testified that Lola had spoken to no man in or near an automobile. A policeman and a reporter testified that she had told them she had not seen the bandits. Harry Kurlansky, a small shopkeeper of Quincy, had talked with her on his doorstep and heard her tell how the police were hounding her to testify against Sacco and Vanzetti. “‘The government took me down and they want me to recognize those men,’ she says, ‘and I don’t know a thing about them. I have never seen them and I can’t recognize them.’”

That testimony looked so bad for Lola, it was one of the times when Judge Thayer felt it necessary to jump to the rescue. He began to cross-question the witness: why hadn’t he set to work as a good citizen to find out who it was that was trying to make Lola give false testimony? Such an obvious thing for a small shopkeeper, a foreigner in a New England town, to tackle the police and the district attorney’s office, and make them stop framing a witness! Said the judge, “Did you attempt to find out who this person was who represented the government who was trying to get her to take and to state that which was false?” Naturally Kurlansky was taken aback by such a question, and could only say, “Well, it didn’t come into my mind. I wasn’t sure, you know. It didn’t--” The judge pinned him down, as to why he didn’t think of it, why he didn’t do it--thus leaving him completely discredited before patriotic jurors, who gave all their spare time to supervising the work of police chiefs and district attorneys.

VI

Presiding over a murder trial is a complicated and exacting business. Common sense and humanity have nothing to do with the procedure; it is a matter of rules and decisions, millions of intricate and subtle details, the interwoven and organized history of the trials which have been held in New England for three hundred years, and in Old England for twice as long. All this you have to have at your finger-tips, for each decision must be rendered immediately, you cannot take it under advisement and look up the precedents overnight. Your reputation depends upon your decisions being such that the highest court, reviewing your work, will sustain you. The strain is incessant, and may last for many weeks; the rules allow ten days’ rest to a judge after each ordeal.

“Web” Thayer had been playing this game for many years, and knew all the tricks; including the one of favoring his own side while seeming to be impartial. His spoken words would go into the record, to be studied by the higher judges; but his manner would not go in--so the art was to keep his words fair, and do the damage otherwise. Every time Swenson or Moore would make an objection, “Web” would turn and look at him over his spectacles with a kind of ironical curiosity. “What is this that has come out of the wild west to teach us how to conduct a court in Massachusetts?” Then his eyes would turn to the jury, and give half a wink; with a bored drawl, he would say, “Objection overruled,” and jury and court officials would be all one grin.

Within its narrow limits the judge’s mind was quick and cunning. He was instantly on the alert to spoil any advantage his enemies were gaining, and ingenious to find reasons to interrupt, to block questions, to bar out evidence and confuse witnesses. Frequently he sat with some of the prosecutors in public places, and he always knew what the prosecutor was aiming at, and if he missed a point, would prompt him. Once, realizing that he had gone too far, he apologized blandly: “I am always telling the district attorney what to say.” The naïve court reporter put that into the record!

And later came the incident of the cap which had been picked up at the scene of the crime, and which the prosecution sought to identify as Sacco’s. It was too small for him, but the jury would overlook that. When the son of Sacco’s employer was on the stand, Judge Thayer tried to get him to say that this cap resembled Sacco’s. Naturally, when a man runs a factory with many workers, he can’t remember the details of all the caps they wear; young Kelley was embarrassed, not liking to displease a great judge, but he had to say, “I can’t answer it when I don’t know right down in my heart that that is the cap.” “Web” was determined to get something more damaging than that; and at the same time he tried to fix it so that his questions would seem to be coming from Assistant District Attorney Williams. Said the judge, “I would like to ask the witness one question: whether--” then he turned to Mr. Williams: “I wish you would ask him, rather.”

The defense lawyers tried to break up this game, but “Web” stuck to it: “I would rather it came from Mr. Williams. Will you put that question?” The somewhat slow Mr. Williams--“Web” came to hate him bitterly for this and other faults--asked the witness whether the cap was “alike in appearance to the cap worn by Sacco.” The witness replied, “In color only,” which would seem clear enough; but “Web” refused to be defeated. Said he, “That is not responsive to the question”--meaning, of course, that it wasn’t what he wanted. He went on, telling the witness what to say: “In its general appearance it is the same.” Those words came from the just and upright judge, and the witness would have had to be very rude indeed to contradict them. “Yes, sir,” he said. When the defense objected to this singular method of “framing” evidence in open court, the judge made it all right by directing the court reporter to falsify the record. “You may put the question so it comes from counsel rather than from the Court.” Mr. Williams then obediently put the question, and the witness obediently answered again. But the court reporter, whether from stupidity or malice, failed to take the judge’s instructions, and copied out the whole dialogue, and there it stands in cold print, to be handed down to the scorn and fury of all future times.

And this partisanship and cunning combined with the cheapest vanity and craving for display! The photographers were constantly making pictures of Judge Thayer, and he was never too busy to pose for them. On the front page of the papers you saw Judge Thayer sitting on the bench with a legal tome open before him; Judge Thayer with a palm leaf fan standing in front of the court-house; the twelve gentlemen of the jury being entertained by a victrola, with Judge Thayer in the center of the picture.

And then, sitting in his chambers, spitting on the floor, and talking about the case with Tom, Dick and Harry; with court officials, interpreters, policemen, newspaper reporters, photographers--incredible as it might seem, even with ladies of social prominence who were there as friends of Sacco and Vanzetti. So furious was his hatred against these “anarchistic bastards,” he was not content to send them to the electric chair, but must throw mud at them on their journey. To Cornelia Thornwell it seemed that the poor old man had literally gone out of his mind; so also it seemed to dignified “blue-bloods” when she told them what was happening. But what could be done about it? The Commonwealth makes the proud boast that no judge has ever been impeached. Were they going to break that record, tarnish that scutcheon, for the sake of two Italians who were anarchists, infidels and draft-dodgers, even if they were not bandits and murderers?

VII

Carlos E. Goodridge to the stand: the man who had managed to exchange a jail sentence of several years for aid in sending Sacco to the electric chair. Judge Thayer knew all about that situation; and just as Swenson had predicted, he refused to permit any questions to be asked of Goodridge, to reveal the fact that he had pleaded guilty to larceny in Massachusetts. Moreover, the judge called the lawyers to the bench while he was discussing the matter, so that the jury might have no hint that they were listening to the testimony of a crook. Thayer would not even permit the discussion to get into the record, and when he saw the court reporter starting to take down his words he exclaimed, “Get the hell out of here!” So the proprieties were preserved, and the glib and plausible Goodridge took the stand, and told the trusting jury how he had run out of the pool-room, and seen the bandit car go by, close to the curb, and how a bandit “poked a gun over towards” him, and this man was Sacco and nobody else.

The defense was hog-tied and helpless. Concerning the rest of Goodridge’s record, the fact that his very name was an act of perjury, they had no evidence. The court-room rang with the cries of the several fine women whom Erastus Corning Whitney had married and betrayed, of the owners of horses he had stolen, of others whom his glib tongue had swindled; but the fates which held Sacco and Vanzetti at their choice allowed no sound to be heard. When later these sounds had been duly transcribed upon legal paper, and sworn to before notaries, and laid before Judge Thayer in the form of a motion for a new trial, that Daniel come to judgment would repeat his deadly formula: “Motion denied!” When the matter was carried before the Supreme Judicial Court, that august body would apply its vast learning to the problem, and decide, first, that the failure to let the jury know of Goodridge’s record was not ground for reversal, and second, that the discovery of new facts about Goodridge was not basis for a new trial. “Decision sustained.”

Blocked and thwarted at every turn! Police officers took the stand to tell how witnesses had identified Sacco and Vanzetti in the Brockton police station immediately after their arrest; but when the defense tried to ask them about witnesses who had refused to identify, “Web” Thayer held up his mighty hand and cut him short. No witness could be asked about what any other witness might have said! By this device the defense would be kept from using the trial proceedings to fish for evidence. The bare idea that they should try to do it was so preposterous that both the judge and the jury burst out laughing.

Again the voices shrieked. Roy Gould, the salesman of shaving paste, the man with the bullet hole in his overcoat, who had been within ten feet of the bandits, and would swear that Sacco was not the man! Mrs. Kelly and Mrs. Kennedy, the only persons who had had an extended view of the driver of the car, and whose written statements that he was not Vanzetti were in the hands of the district attorney! All those witnesses who had been taken to the police station by Henry Hellyer and Captain Proctor, and had identified photographs of other bandits, but had refused to identify Sacco and Vanzetti--in spite of the posing, and pulling down of caps over the eyes, and pretending to aim pistols! So many voices crying warnings, filling the court-room with their clamor--in vain!

VIII

In the papers Cornelia read news of great concern to her family; the demurrer to the suit of Jerry Walker had been overruled; the last bar was down, the tremendous case was to be tried out before a jury. “Fifteen Million Dollar Conspiracy Charge!” said the newspapers. To Cornelia it meant a family agony; all three of her sons-in-law, two of her nephews-in-law, two or three cousins, were going to have to take the witness stand, and be questioned for weeks and months as to the details of their business procedures. Jerry Walker’s lawyers had not minced words in setting forth what they expected to prove: the great bankers, headed by Rupert Alvin and Henry Cabot Winters, had “entered into a secret combination and conspiracy to carry into effect by their combined power and influence, by duress of the plaintiff, by fraudulent concealments, false representations and by wrongful, illegal and fraudulent means which are hereinafter stated with certainty and particularity, to deprive the plaintiff of his shares in the above-named companies.” The “yellow” newspapers smacked their lips over the promised feast, while the dignified ones put the news away in the financial columns, as if to say that these abusive words were used in a technical sense, and did not mean what the ordinary reader would suppose.

Already families had been broken up over this issue, and wives were not speaking to one another. Mrs. John Quincy Thornwell, wife of the president of the Fifth National Bank, was telling everybody that Rupert Alvin had drawn her husband into the mess without his knowledge. Mrs. Rupert Alvin, wife of the president of the Pilgrim National, was outraged because her sister, Mrs. Henry Cabot Winters, was taking the affair with flippancy, having said to her intimates that it would be an excellent thing if some of these gentlemen were sent to jail, so that their wives would know where they were! Slanders and recriminations--bitter feuds starting--a whole kettle of Back Bay codfish!

In the Sacco-Vanzetti trial one of the lawyers fell ill, and Judge Thayer put off the trial over the week-end. Cornelia was planning to write a lot of letters and raise some money which was badly needed; but Deborah telephoned from her place at the North Shore, her mother must meet her in Boston at once, something about Alice, very serious. Cornelia assumed it was more of the Jerry Walker quarrel. “You know, Deborah, I consider the Walkers as my friends, and I am not going to have anything--”

But Deborah broke in: “It has nothing to do with that, Mother. It is something personal, something desperate--I can’t give you any hint over the telephone. Come to the house at once.”

So Betty drove her grandmother to Boston. Betty had work to do at defense headquarters. She was going to get out a rush circular about events at the trial, and she wasn’t going to let Joe have anything to do with it. Under the very strict laws of Massachusetts, Judge Thayer had the right to call it contempt of court, and if he tried to, the defendant was going to be a young lady with the very bluest blood in New England; old “Judge Fury,” as Betty had taken to calling him, would get a sure enough front-page story if he tried it! Joe was going to stay in Dedham and write newspaper and magazine articles, which would be published outside the state, and so beyond “Judge Fury’s” reach.

“I know what you’ll find,” said the young lady Bolshevik--“another of Aunt Alice’s geniuses gone wrong. I hear she’s going wrong with him.” And so it proved. Alice had got the love of art and the art of love mixed up. A chaotic Bohemian pianist had cast temperamental glances at her, and she proposed to accompany him to Europe, and had notified Henry that she expected to get a divorce. “And right now!” cried Deborah--“while Rupert and Henry are driven nearly to death with this Jerry Walker affair, and the Elevated Railway business, too--and Betty, and you--Mother, we simply cannot have another scandal now!”

So the family phalanx must gather about the frantic woman, and guard her with their spears, and frighten away “that impossible man,” as Deborah called him. Cornelia, the mother, and only woman member of the old generation, must take most of the burden. She must face her second daughter’s hysterics yet again--she had lost count of the times, it had been more than twenty years of melodrama; first frantic jealousy of Henry, then bitter hate, then indifference, with various stages of romantic thrills for this, that and the other great or some-day-to-be-great poet or painter or musician. This time was the most terrible of all; this time all bars were down, all reserves thrown away--it was most decidedly not “Boston,” not to be believed.

For twenty years Alice had sought something, and the women and the men of the family had formed the phalanx about her, and held her captive. “Now look at me!” she cried. “I am an old woman! My skin will soon be parchment, and my chance is nearly gone!”

“Your chance at what?” asked Cornelia, quietly.

“Love!” cried the other, with unaccustomed clarity.

The mother felt a sudden uprush of pity. “Does love depend on complexion?”

“What else?” cried Alice, wildly. “And look at me!”

Cornelia looked, and realized. It was true that her vain and beautiful daughter was showing her years; no longer the wild rose complexion, the girlish charm, the serenity and security of young matronhood. Alice’s skin was getting dry, there were lines that no beauty doctor could take away, those fatal tight strings under the chin which nothing can hide. Deborah’s neck had been like that for years, she had worn a black velvet band about it. But such a device would make Alice “look a fright”--she grabbed up a ribbon and wound it into a halter, to show her mother what she would be like!

She loved Franz Cezak! He was not a “strolling Bohemian,” as Deborah had basely insinuated; he was no common musician at all, but the younger son of a great family, who had been received as a house guest in Back Bay homes. Alice loved him, and she didn’t love Boston, and she was going to be happy!

Would she really be happy? asked the mother, and began the brutal task of undermining poor Alice’s castle in Bohemia. Did this love-artist know that she had very little money in her own right, and that it is not the custom for American husbands to subsidize the art-romances of their wives? Was it true that the man was some years younger than Alice, and if so, did art-lovers behave like other men in the matter of women’s age? Was Alice expecting to come back to Boston, the morning after her nuit d’amour?

Clara Scatterbridge, the youngest daughter, came in; having all the future of her many sons and daughters, coming one by one to marriageable age, to weep and plead for. Rupert Alvin came, leaving all his cares of state. He had put into action the machinery which the ruling classes have established for the quick and efficient collection of scandal; just as he could tell his mother-in-law all the gossip of the “Italian colony” concerning the anarchist “gruppo” of East Boston, so he could tell his sister-in-law about a Bohemian pianist, who had an art-love in every concert town. He had been knocked down and almost killed by a well-known cricket player of Philadelphia, and in Paris he had run away from a duel with the exiled Russian Prince Dolgorovitch, “or whatever it is,” said Rupert, with Anglo-Saxon contempt for a name with such termination.

And then young Josiah Thornwell Winters, Alice’s only son, who was to get his “sheepskin” from Harvard in a few days. Young Josiah’s own behavior didn’t give him much standing in court, he admitted, but he was promising to settle down and make a man of himself, and it would certainly be easier if he had a mother in blameless Boston, rather than following a pianist about Bohemia. The rest of the family withdrew while this intimate episode in the drama was played out.

IX

Cornelia went to see the husband, and found that Henry was taking a most un-Bostonian attitude. “Mother,” he said, “it seems to me Alice had better have it out, and see whether there’s anything in this romance business for her. You, as a Bolshevik, ought not be shocked by that.”

“Mine has been a revolt with a purpose,” said Cornelia; “and if Alice has a purpose I don’t know what it is.”

“Well, I have said for years that Alice ought to have a divorce. If she had a husband, she might settle down--”

“But this man won’t be a husband, Henry!”

“I know; but something has got to pull her loose from the family. I haven’t said it to them, because after all, it’s a Thornwell affair. But it’s been plain to me, ever since I realized that I wasn’t the man for Alice. The misery has been because the family couldn’t make up its mind to face a divorce; they’d rather have a fit of hysterics once a month for twenty years. I don’t want to talk about Alice, for she’s your flesh and blood--”

“Go on, Henry, say what you think. I’ve got to understand you all.”

“Well, Mother, fundamentally it’s that Alice hasn’t got any brains. Why didn’t you teach her some of your sense of fun?”

“You forget, Henry, I didn’t do the teaching. The house was full of Josiah’s sisters and aunts, who knew what ought to be done always. I waited too long before I fought.”

“Yes, Mother, we’ve all made mistakes. I ought to have given more time to my son. I left him to his mother, while I made the money, and now I’ve got too much money, and no wife, and a son who has the structure and constitution of a marshmallow. That’s my reward for hard work--not much reason for going to the office in the morning, is there?”

“I know, Henry, you’ve talked like that before; but you go to the office in the morning, and go on doing what you did the day before. We’re all of us like so many ants--we do what the others do. Because I have tried to think for myself, you decide I am cracked in the head.”

“No, Mother, not at all!” Henry’s gallantry came to the rescue. “I really have a great admiration--you should hear me boasting about you in the clubs--nobody can sport such an exciting mother-in-law! Truly, you’re the talk of the town--they tell me you have assumed the moral leadership of all the Bolsheviks at the trial.”

“They tell you something very foolish, like all the other tales about the Sacco-Vanzetti defense. What became of the evidence you promised to get me, Henry? Have you forgotten it?”

“No, Mother--”

“You didn’t find it so easy as you thought?”

“Not that; but fifteen million dollars is a lot of money, and Rupert is terrified as to what he has to admit in the Jerry Walker case. Also he’s had to take charge of the Bar Association--the job they are planning, to oust our district attorney. I suppose you’ve heard about that?”

“No, Henry, I’ve been out of touch with the criminal world of late.” She laughed, and he laughed, too--they always had a good time. If only Alice had had her mother’s ability to laugh!

“It’s a long story, I’ll tell you about it some day. When the blackmail ring got after the Thornwell family, Rupert insisted that we had to put them out of business; he’s a sterner moralist than I, you know. We started work through the Bar Association--you are reading about this Mishawum Manor case, of course.”

“Did you and Rupert start that?”

“The episode happened four years ago. Didn’t it strike you as peculiar that it should be taken up now?”

“To tell the truth, I’ve been too busy to think about it.”

“Well, so has the public! The fact is, I got detectives and got the story for Rupert.”

“Why did you start in Middlesex County?”

“Well, you see, the district attorney there happens to be an American, and we thought it would be good policy to show impartiality. After we have put Tufts out, nobody can kick if we come over here to Suffolk and tackle Joe Pelletier!”

“I see!” said Cornelia. She knew that she was being admitted to the inside of Boston public life--the center of the center and hub of the hub! “Joe” Pelletier, district attorney of Suffolk County, comprising Boston proper, was a leading Catholic orator and hero, National Advocate of the Knights of Columbus, knighted by the Pope for his services to the holy cause. Incidentally he was one of the tools of the “blackmail ring,” and may have got a share of that seventy-five thousand dollars which Henry had “pungled up” to pay for the flashlight picture of his son in the hotel room with a woman. So now the Thornwells were out to “get him”!

It was one more crisis in the unending struggle between the blue-blood and the Irish-Catholic elements of the city. Cornelia had watched it all her life, so she did not have to ask many questions. “It seems unfortunate,” she commented, “that Rupert has to be mixed up in this Elevated scandal right now.”

“But that is part of the fight,” said Henry; he explained that Joe Pelletier had taken up the scandal and was threatening prosecutions, as a means of frightening Rupert and the rest of the Pilgrim National crowd. Something like half the patriotic legislators of Massachusetts had been borrowing money from the banks, and speculating in Elevated stocks, before they passed the bill which boosted these stocks on the market; and now Pelletier was trying to fasten it on Rupert. It was a question which would “beat the other to it.” “Make your bets!” said Henry Cabot Winters.

“Your smile is a sufficient betting tip!” replied his mother-in-law; and he said yes, it was coming out all right, only Rupert was the worrying temperament, and getting worse. The doctors tried to get him to stop, but they hadn’t chosen a very helpful way. They took x-ray pictures of his veins and showed how they looked like white ribbons, which meant deposits of lime and other minerals; they had given the poor fellow such a list of things he mustn’t eat that when he dined out he picked around in his plate like a chicken. His rosy and purple bulges would soon be turned into hollows.

X

Alice’s castle in Bohemia collapsed. Did one of the Thornwell men convey to the tempestuous genius the information that the Thornwell ladies had no money of their own? Anyhow, the celebrated artist discovered a series of concert engagements in California, and wrote Alice a letter of great wisdom and sympathy. The tormented woman died a score of soul-deaths, and retired to a fashionable sanatorium to try a rest cure with “stuffing.” A little later she would be trying a fasting-cure, and after that a diet of grapes exclusively, and then she would be paying thirty dollars an hour to have her troubles listened to by a psychoanalyst.

Meantime Cornelia had hurried back to Dedham, where the trial had reopened, regardless of Thornwell family troubles. Again she sat all day on a hard bench in the court-room, and wrote memoranda in a notebook, and in the evening conferred with the lawyers and the committee and the journalists until late at night. Each afternoon, after court, she went by special favor of the sheriff, to say a few words to Bart, and hear his advice about the procedure, and comfort him with affection.

The prosecution had come now to the identification of Vanzetti as one of the bandits. They put on the stand a man named Levangie, gateman at the railroad tracks across which the bandit car had passed immediately after the shooting. This old man told how a train was coming when the car drove up, and he started to put down the gates, but the bandits forced him at the point of a revolver to raise them and let the car cross ahead of the train. He identified Vanzetti as the driver of the car.

When the defense had its turn it put on a locomotive fireman, not a Red but an Irishman, who testified that three-quarters of an hour after the shooting he talked with Levangie, who said that he did not see the bandits, all he saw was the gun, and he “ducked into the shanty.” Three other witnesses gave the same testimony. As it happened, Levangie had told one of the defense lawyers that he could not identify the bandits, and first he admitted having said this; later he contradicted himself, and said he did not remember any such interview. He was a loose-jointed fellow, shifty of eye, and did not seem at all abashed when he was caught in false statements; rather he took the whole affair as a joke.

It became a joke to all the world, when the district attorney came to discuss Levangie’s testimony in his address to the jury. Mr. Katzmann was in a dilemma, because the gateman had identified Vanzetti as the driver of the car, whereas Mr. Katzmann’s other witnesses agreed upon the driver as young, small, light-haired and sickly looking. The district attorney managed very ingeniously to repudiate Levangie while at the same time asking the jury to accept him. The gateman thought he had seen Vanzetti driving the car, but really he had seen him in the rear seat!

That was all the real evidence they had. But to cover the weakness, they put on some more that looked like evidence. A man named Dolbeare, who thought he had seen Vanzetti in an auto full of foreigners in South Braintree, some five hours before the crime. He had seen a car going past him, and what had attracted his attention was one man leaning forward talking to another, and that it was a “tough-looking bunch.” He did not know Vanzetti, had never seen him before, and never saw him again until after the arrest. He admitted that carloads of workmen drove through the town all the time, on the way to the shipyards. He could not identify any other man in the car, nor give a single detail about any one; all he could do was to identify Vanzetti as one man who had been in that car.

And then a man who claimed to have seen Vanzetti on a train the morning of the crime, coming from Plymouth to East Braintree. This man was completely refuted by the conductor and three ticket-agents--no ticket had been sold for such a journey. Also the prosecution put on another crossing-tender, who had noted a car at his crossing, near the Manley Woods, an hour after the crime, and thought it was Vanzetti in the front seat of the car. And that was all the identification! That was the main part of the evidence upon which the august Commonwealth of Massachusetts proposed to send a man to the electric chair!

When Cornelia examined her notes, and questioned others in her party, to see if her memory was playing her false, she was appalled by the thing she saw happening before her eyes. They were actually attempting to convict Bart of murder without one real item of identification; solely upon such facts as that he had been with Sacco the night of the arrest, and had a gun and cartridges, and had told lies to the police about himself and his doings! So farcical was the identification of Bart, and so completely were the identifications of Nick shot to pieces in the course of time, that three years later Judge Thayer found himself backed against the wall, and forced to admit that “these verdicts did not rest, in my judgment, upon the testimony of the eye-witnesses.” This news would certainly have surprised the gentlemen of the jury, who had spent a week or two listening to these eye-witnesses, and had been solemnly assured by the district attorney himself that never in his eleven years of office had he “laid eye or given ear to so convincing a witness as Lola Andrews!”

XI

Almost three weeks it took the Commonwealth of Massachusetts to present its case against the two anarchist wops. Thirty times the prisoners emerged from the county jail--at a quarter to nine every morning except Sunday, and again at a quarter to two every afternoon except Saturday and Sunday--and marched from the jail to the court-house: chained to a deputy on each side, with ten or twelve policemen marching in front, and as many in the rear. They always walked in the street, not on the sidewalk, for greater safety against surprise attack. Small boys would gather to stare, and the deputies would command, “Stand back!” It was their only chance to justify the expense to the county.

Seated in the cage, side by side, the prisoners would gaze straight before them. They could not see the spectators, nor was any one permitted to speak to them, except their lawyers. After a time the stern guards learned to make an exception of Mrs. Sacco, who would go to the cage and chat with her husband until court opened. Poor little woman, she had to bring a nursing baby with her, and her face, usually bright and eager, was worn and lined. She would sit all day, silent and rigid, trying to understand long words in a language that was still partly alien to her.

Her husband also would try, and the more he understood, the hotter became his revolutionary fury. Several times he and his companion boiled over--impossible to sit in silence while lies were told and rascality committed under the forms of law. When the policeman who had arrested them swore that Bart had several times started to reach for his gun, Bart cried out, “You are a liar!” A terrible breach of decorum--the guards seized him and shoved him into his seat, commanding, “Shut up!” When Lola Andrews was in the midst of her identification, Sacco rose in his seat and cried, “Am I the man? Take a good look! I am myself!” Again a great shock, and a sensational story for the papers. Nick’s picture took the front page.

Later, when the defense was having its innings, there were more scenes. The interpreter provided by the court was an Italian by the name of Rossi; he belonged to the Norfolk County “ring,” and was a friend of Mrs. DeFalco’s, and of Judge Thayer’s--he had a child named Webster Thayer Rossi, and he used to drive the judge up to the University Club in Boston; if the judge did not discuss the case with him on the way, it was the only chance “Web” ever lost.

Either this Rossi did not know how to interpret correctly, or he did not wish to; at a critical point in the testimony of Alfonsina Brini, he misstated in English what she had said in Italian. Bart knew enough to catch the error, and insisted upon calling attention to it, and would not let the guards silence him. Again and again he saw these errors, and to Cornelia, when she came to see him in the jail, he insisted, “That fellow is a crook!” Over and over he said it, “He is a crook! Crook!” Cornelia thought it was Bart’s prejudice against everybody in power; but it was another of those things that were to be proved too late. Before five years had passed, Rossi was to get a two year jail sentence for trying to sell his influence with judges.

Such misfortune appeared to dog the patriots who were prosecuting Sacco and Vanzetti; so many of them got into trouble with their own laws--but always after the verdict, when it was too late to count! There was an agent of the Department of Justice, named Shaughnessey, who had had the job of watching Red meetings and had supplied a mass of information concerning Sacco and Vanzetti. This ardent patriot stole a carload of hogs--a rather difficult object to get away with, one would think. Later he got twelve years for a holdup. But when in the course of later appeals, the defense had occasion to suggest the possibility of improper conduct by Department of Justice agents, “Web” Thayer was outraged by this, and delivered a stern rebuke.

XII

And then Captain Proctor, head of the state police. The Proctor story was so atrocious, that naïve old ladies like Cornelia Thornwell thought it would only have to become known in order to split the community wide open. But in fact, it hardly made a ripple. Massachusetts was so used to official knavery that it had lost the power to react, even with surprise.

Captain Proctor had been in the police service of the Commonwealth some thirty-six years, and was an old hand at the “frame-up”; among other jobs, he had “made” the Ettor and Giovannitti case. When Sacco and Vanzetti were arrested, he was called in by Mike Stewart, and interviewed all the witnesses, and tried to help out Mike’s “theory.” But in the end he told Mike, “You’ve got the wrong men,” and withdrew from the case.

But still, gang loyalty held him, and when Fred Katzmann called on him to identify the so-called “mortal bullet,” which had been extracted from the body of the dead guard, he came. This bullet was the crucial issue in the whole case; it was what tied Sacco and Vanzetti to the case, because the other five bullets found in the dead bodies were of such a size and make that they could not have come through either Sacco’s pistol or Vanzetti’s. The prosecution claimed that the “mortal bullet” had been fired from Sacco’s pistol, and could have been fired from no other pistol. They put on an “expert” who swore to that; and then they put on Proctor, who backed up the “expert.”

At least, that is what everybody thought he did, and the trial was concluded on that basis; the prosecution laid the utmost emphasis upon it, because Captain Proctor had qualified at great length as an authority upon bullets and revolvers, who had been studying the matter for twenty years, and had been a witness in more than a hundred capital cases. Said Katzmann, in his closing argument to the jury, “You might disregard all the identification testimony, and base your verdict on the testimony of these experts.” And Judge Thayer put the weight of his judicial authority behind that; he explained to the jury what the testimony meant, that “it was Sacco’s 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 Amburgh.”

Nothing could be more positive; and so the matter went to the jury; so it stood in the minds of all students of the case for two years. But then Captain Proctor was near death, and his conscience troubled him; two men whom he believed to be innocent stood in the shadow of the electric chair, because of a conspiracy into which he had entered with the prosecution, to misrepresent his testimony to the jury. So he made an affidavit in which he set forth what had happened. Repeatedly he had been asked by the prosecutors to testify that the particular mortal bullet had been fired through the particular pistol belonging to Sacco. He had made many tests and measurements in the effort to convince himself that this was so, but he could not get the proof, and refused to give such testimony. “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.” At the trial the questioning had been done by the assistant district attorney, later to become a learned judge. His question had been framed very carefully, and Proctor’s answer no less carefully: “My opinion is that it is consistent with being fired by that pistol.”

A verbal trick, you see; the witness meant that the mortal bullet _might_ have been fired through that pistol; but the district attorney represented to the jury that his words meant something entirely different--that it _must_ have been fired through that pistol, and could not have been fired through any other pistol in the world. That was how Judge Thayer passed it on to the jury in his charge; and in after years, with the printed words of his charge before him--preserved immutably, to be handed down to the scorn and fury of all future times--the embittered old man rendered a decision in which he ingeniously twisted the defense contentions concerning the meaning of the Proctor affidavit and the answering affidavits of Katzmann and his assistants, which really did not answer at all.

It was “Web’s” way, shown in almost every decision he rendered. You would state something in plain words, as explicitly as the language permitted; you would wait patiently, a year or two, while the old gentleman had an appendicitis operation and an attack of pneumonia; and finally he would hand down a decision in which he accused you of having said many things you had never thought of. He would set up a whole regiment of straw-men, and in a valiant duel chop off their heads; he would fill pages in the stately law-books with refutations of arguments which had never been heard anywhere save in his own hate-tormented head. And then at the very end, sitting upon his throne with the whole world for an audience, he would solemnly declare: “With reference to the question of prejudice, there is not any now and there never was any.”