Chapter VIII: Pleadings and the Verdict (2)

"But I say to you, ladies and gentlemen of the jury, that this struggle, the struggle of Capital against Labor, the struggle of the Commercial Club against the I. W. W., which is just one phase of the bigger one, this struggle is going on in spite of Cooley, this struggle is going on in spite of McLaren, this struggle is going on in spite of Arthur L. Veitch of the Merchants' and Manufacturers' Association, this struggle is going on in spite of McRae, this struggle is going on in spite of the Commercial Club, because it is founded on a principle so big, so wholesome, and so decent, so righteous, that it must live. And it will go on until in this country we have industrially that which we have struggled so long and hard for and finally won politically; until we have democracy.

"There is nothing in revolution, gentlemen, that is wrong. We came to the condition in which we now find ourselves by revolution; first the grand American revolution and then the revolution against chattel slavery. It was nothing more nor less than revolution, because slavery was then entrenched under the highest law of the land, the decision of the Supreme Court in the Dred Scott case. We took it out of the courts and slavery was wiped out. Slavery again will be wiped out!

"The thing about this case which makes it of most serious importance, the thing about this case which makes it of public interest, the thing about this case which has so enlisted the sympathy of every one connected with it, which makes us feel the importance of a just verdict, is that it is not merely the liberty of a man that is at stake, but in a larger measure than you know there is at stake in your verdict in this case the rights of the working people, their right to organize, their right to protect themselves, their right to receive and enjoy the fruits of their labor.

"There is involved the question of whether or not the working people shall receive justice or forever must be victimized by organized capitalists. There is involved the question of whether or not such things as have gone on in Everett for the last six months may continue forever with the endorsement of the jury or whether the working people on the other hand may go and discuss their wrongs and grievances and strive for their rights.

"As I have confidence in the righteousness of this cause and the integrity of this purpose, so I have confidence that your verdict will be not guilty."

Attorney Fred Moore closed the case for the defense with one of the greatest speeches ever delivered in a court room, a speech that seered its way to the minds and hearts of the jurors. Far more than a defense of Thomas H. Tracy it was an explanation of the industrial problems underlying society, the class warfare rooted in industry and manifesting itself on November 5th. It was a sustained and definite statement of the aims and objects of the I. W. W. and Moore showed, not only a great knowledge of the problems of the working class, but a wonderful command of satire and irony. Following is an abridgement of Moore's speech to the jury:

"May it please the court, and ladies and gentlemen of the jury; For a period of something like five hundred years the Anglo-Saxon has seen fit to place the final adjustment of the question of justice in the hands of twelve men. In the evolution of the law, that number has been increased until now in this state we have fourteen. Likewise, in the evolution of the law and in the face of the vast amount of public protest, and in the face of the most reluctant world, we have enlarged the term jurors to include women jurors. This is the first time that I personally have ever tried a lawsuit in which ladies sat in the jury.

"The state has told you why this case is one of grave responsibility for them. Allow me to tell you why this is one of grave responsibility for you. One hundred and ninety-six witnesses have appeared for the defendant in this case. Yesterday, counsel brought home the fact that many of these witnesses were not residents of this community, were without homes, without any permanent places of abode. All true. The responsibility that you have in this case is commensurate with the fact that the case reveals to you, as it were, a cross-section of our lives. You who are property-qualified have a responsibility to pass upon the liberties and the lives of a body of men who are propertyless. If there is any change in men's thoughts and views as they acquire a home, as they settle down, as they marry, as they bring into the world children, then I ask you in all fairness to attempt to put yourselves in the places of this defendant and of this defendant's witnesses who have taken the stand, and to realize that your responsibility here is commensurate with the fact that the testimony reveals, as it were, a most deplorable condition of modern life. In other words, your responsibility here is that of measuring out absolute and complete justice between warring elements in our modern life, not for one moment allowing your judgment to be swerved by the fact that one class of witnesses here are witnesses of social position, are witnesses of property qualifications, are witnesses with homes, while, on the other hand, the witnesses called by the defense were witnesses from the four parts of the earth, witnesses whose only claim to your consideration is that they have built the railroads, that they have laid the ties, that they have dug the tunnels, that they have harvested the crops, that they have worked from one end of the country to the other, in season and out, floating from job to job.

"In most jurisdictions, the defendant has the opportunity of either a grand jury investigation or of a preliminary; in other words, he is in some degree advised of what evidence he is going to be called upon to meet. In this case, we came in here on the 5th day of March with no information whatsoever relative to the State's case other than that given us from the four corners of the instrument on file here, known as the information, together with the fact that on that information there were the names of some three hundred or more witnesses. That was all we had. We were further handicapped in view of the fact that we did not have behind us all the resources of the State of Washington and the county of Snohomish, neither did we have behind us all of the resources of various business interests, neither did we have behind us all the resources of allied business on this west coast, as represented by Mr. Veitch."

Mr. Veitch: To which I take an exception, if the court please.

The Court: Exception allowed.

Mr. Veitch: On a matter of personal privilege, I have a right to characterize that statement as a deliberate misstatement of the fact.

Mr. Moore: Mr. Veitch has not seen fit to explain why he was here.

Mr. Veitch: I am employed by friends of Mr. Jefferson Beard. If that is not enough--

Mr. Moore: That is outside of the record.

The Court: Both of you are outside of the record. Proceed Mr. Moore.

"Suffice it to say that we are here as the frank and honest representatives of the defendant and of the defendant's organization. We do not have behind us the power of the State, or the power of any interest other than the defendant himself and of his organization.

"Mr. Black complained that the State had been hampered in this cause. Is it fair to say that the state has been hampered when on the fatal November the 5th. Judge Bell and Mr. Cooley were both on the dock? Judge Bell would have us believe that he was unarmed, and so far as we know Mr. Cooley was unarmed. Then why were they on the dock? Judge Bell was there as the representative, as he himself has testified, of a number of lumber mills, and Mr. Cooley was there likewise; both citizen deputies; both there; both unarmed if their testimony is to be believed. Again Mr. Cooley was, in the matter of a few hours, down here at the Seattle jail. Certainly he was not there to represent the defendant Tracy. Who was he there to represent? He was either there in a private capacity, representing private clients, or he was there in a public capacity representing a public client, namely, Snohomish County. Wherein do you find the evidence of the State being hampered, sir? From the beginning to the end the State has moved majestically, exercising all the power that it had. Mr. Black has had able assistance in this cause, the able assistance of Mr. Cooley, the able assistance of Mr. Veitch, the able assistance of the man behind Mr. Cooley and Mr. Veitch, Mr. McLaren. Yet, all the resources of the State have failed to produce one scintilla of evidence against the defendant Tracy here so far as tending to indicate that he did counsel, aid, incite, abet, or encourage anyone to fire any shot, except the testimony of George Reese produced at the eleventh hour on rebuttal. I intend to treat of our friend Mr. Reese later.

"It is significant that out of all that mass of testimony that has been introduced in this case up to this time not one single bit of testimony has been introduced or any argument had upon that testimony dealing with the object and principles and purpose of the Industrial Workers of the World. Mr. Black did not refer to it. Mr. Cooley has the final say. I anticipate his argument for the State. They have that old reliance, that old faith, if you will, in the trial of a case of this character, namely conspiracy; hallowed by age.

"Way back in the sixteenth century the tub women on the banks of the river Thames were indicted for conspiracy in attempting to raise wages. The chandlers in London were likewise later indicted. The stonebreakers in New York, the carpenters in Boston. From time immemorial the charge of conspiracy has been leveled against the ranks of labor. Indeed, it was only in the reign of Queen Victoria that labor unions became other than simple conspiracies. Up to that time labor unions were within a classification themselves of criminal conspiracy.

"Knowing that under the charge contained in the information we might be called upon to meet evidence of conspiracy, we then commenced a careful survey of all the facts in connection with the Everett tragedy. And what did we find? We found not a hint of conspiracy!

"James Rowan had come into Everett without knowledge at the time that there was any trouble there. He had not been advised that there was any possibility of trouble. From all the prior history of Everett he had no reason to anticipate trouble. Thompson had spoken there and many others had spoken there. Rowan was charged with a violation of the peddling ordinance. He had been given an arbitrary floater out of town and had exercised his right to come back, was seized again and taken to the city jail; the sheriff goes there and arbitrarily demands Rowan from the Chief of Police. These things happened prior to any acts that by any remote possibility could be charged to us. There was no literature in the town at that time other than the Industrial Relations report. What at that time did we have to conspire about? We had no object.

"And as with Rowan so it was with Thompson, Remick and others. If there was a conspiracy to violate a city ordinance why did not the city officials make arrests and charge the men with such violations? The record is silent. Why wait until Tom Tracy is on trial for murder, and then at the eleventh hour spring this delightfully specious argument?

"I can almost hear ringing in my ears the impassioned plea of Mr. Cooley in closing this case. He is going to read this, 'The question of 'right' and 'wrong' does not concern us.' He is going to say that is the I. W. W. philosophy. My God, did it ever concern the sheriff of Snohomish County? Does it seem very much to concern others who are attempting this prosecution?

"We were told in connection with the argument of counsel that Hickey was not on trial. They might have said that sheriff McRae was not on trial; they might have said that Bill Pabst was not on trial; they might have said that Joe Irving was not on trial; they might have said that the Commercial Club was not on trial; they might have said that all the men that have been guilty of all the brutality in that County during the months of August, September and October were not on trial. We know it! Why are they not on trail?

"Deprivation of due process of law and confiscation of property! And yet Mr. Cooley is going to urge that the I. W. W. does not believe in government; he is going to urge that the I. W. W. does not respect the law. That kind of law never gets the respect of anyone. I hang my head in shame before such a history of usurpation and seizure of public authority as has been shown in this case.

"Are you going to give the stamp of your approval to this sort of thing? When you bring in a verdict in this case for the State you give your approval to Donald McRae. I beg of you to not put the seal of your approval upon lawlessness, official lawlessness, the kind of lawlessness that is worse, tenfold worse, than any private lawlessness.

"You are asked to stamp with your endorsement, to give your approval, to a man; a public official, the chief executive officer of a municipality, Mayor Merrill, who admits on the witness stand that he allowed a little group of members of the Commercial Club to take the power of the police department out of his office and turn it over to the sheriff of the county.

"Had the State put on Governor Clough and others on their side of the case we might have wrung from their reluctant lips the evidence of what occurred at the meeting on August 30th at the Commercial Club. But the State was careful not to put him on. Indeed, the most significant and outstanding thing in all this case is not who they put on, but who they did not put on. Neil Jamison did not testify in this case for the State; Governor Clough did not testify in this case for the State; Joe Irving did not testify in this case; Colonel Hartley did not testify in this case; Captain Ramwell did not testify. Why didn't Kelly, Chief of Police, take the stand? You might go down the line and you will find that the assets of all the witnesses for the State combined would total but a few thousand dollars, while you could take the remaining witnesses for the State who did not testify and you could build up an enormous fortune, running into the hundreds of thousands of dollars. We didn't call them because we cannot cross-examine our own witnesses.

"Is the administration of the law to be made a farce? Shall the State be allowed to blow hot and cold; one minute hot on the enforcement of the law, the next minute cold when the shoe pinches, and then hot again when they can use the law for the advancement of the interests of their prosecution? They say McRae and Hickey are not on trial; there is no promise that they shall ever be on trial!

"Let me say to you that no one violates the law, I care not who it is, just for the fun of violating the law. Jails are not pleasant places to abide in. People who violate the law and go to jail do so either because they are deliberately criminal or because they want to focus attention on some public issue. However, Mr. Black is too kind and considerate when he gives all this credit to the I. W. W.

"The facts are, if you go back into the history of the Revolutionary Days, that our forefathers urged and banded together and combined and federated, and if you will, conspired to violate the Stamp Act of the British Government, and were willing to go to jail if necessary. They went even further! They threw the British tea into Boston Harbor. Violation of the law? Yes, if you want to call it such, but the indignant protest of a people as against the enforcement of an unjust law.

"I might urge upon you that the State at that time wanted to absolutely suppress any speech whatsoever, because they had constituted the chief of police, the sheriff, the arresting officer, as the executive, the legislative and the judicial department of our government. The sheriff executed the law in person, the sheriff declared the question of guilt himself, the sheriff ordered deportations, and the sheriff took physical charge of the deportations. Isn't it impossible to avoid a fight when someone usurps unlawfully and illegally the legislative and judicial functions of government? Isn't it time to fight? If it isn't then we may as well cease any attempt to administrate the law!

"In the phraseology of these boys 'Fight' means a moral adherence to principle, a firm determination to face the authorities in the administration of the law, and if necessary to be arrested. But the State would have you put into it now a more sinister meaning, entirely new and foreign to its former use.

"The State brought in the death of Sullivan of Spokane in their opening and abandoned it in their close. One of the exploded hopes of the State! They counted on North Yakima and Wenatchee to show violence and arson, and they failed most miserably. They have failed in their identification of the defendant. Now, their forlorn and bankrupt plea here is the charge of conspiracy.

"The court has told you that this is a murder case. Why then has the State cumbered the record with the I. W. W. preamble and constitution? Why with two pamphlets on sabotage? Why with an I. W. W. song book and such matters? Why?

"Because out of some of the phraseology here, phraseology far removed from you and me, they may build up a condition of prejudice which may result in your returning a conviction on a smaller degree of evidence than you would otherwise require. Mr. Cooley is going to stand here and read little, short, listed extracts from the context of the whole. The pamphlets he has introduced on the question of patriotism and the worker is the foundation from which Mr. Cooley will appeal to your prejudices and passions.

"We are not afraid of the evidence. We are afraid of this deep-grained interest that goes down into men's conscience and that reached back a thousand years.

"Remember that behind this case are many women and children whose cause these boys represent; whose cause these boys are attempting to fight for. They fight because they must! They fight because to do anything else is suicide. You could not have stopped the American Revolution with all the powers of the British government. Since this jury was empaneled you have had the collapse of one of the greatest powers of modern times. I refer to Russia. It has passed from an absolute monarchy to a stage of a republic.

"The trial of this cause is the presentation of a great social issue, the greatest issue of modern times, namely, what are we going to do today with the migratory and occasional workers? These migratories, they are the boys who have told their story on the stand.

"If there is one principle that is ground into Anglo-Saxon thought it is that of liberty of the press and freedom of speech. Those two things stand as the bulwark of our liberty. They are the things for which the Anglo-Saxon has fought from time immemorial. Away back in the eighteenth century Charles Erskine, a member of the British bar, defended Thomas Paine for having written the 'Rights of Man'. Case after case was fought out during that period when English thought was budding into fruition; when English thought was being tremendously influenced by the French Revolution and when those thoughts were bearing fruit in England. Time and time again the British crown attempted to throttle freedom of speech and liberty of the press. Time and time again Charles Erskine's voice was raised in the House of Lords in protest. Time and time again the British courts and finally the British jurors, gave voice to the doctrine that freedom of speech and liberty of the press may not be invaded except insofar as that subject, that document, is accompanied with acts; that you may not convict men for what they think; you may convict men only for what they do. Freedom of discussion thru the press and thru the public forum are the mainstay and the backbone of social development and social evolution. Only in that way, thru freedom of thought and freedom of discussion, may you fan the wheat from the chaff.

"Why, if this I. W. W. literature is all the State claims it is, why doesn't the State act in the way the law says they should act, prefer charges, arrest someone, bring the literature before a duly qualified body, a court with jurisdiction, and try the matter out? The State has not done that; the State will not do that; and we are in the position of a man fighting in the dark, without knowledge of what character of argument the State proposes to make.

"I do know that the name of Joe Hill is going to be paraded in front of this jury. The I. W. W. song book dedicated to Joe Hill, with the inscription 'Murdered by the authorities of the State of Utah, November 19th, 1915.' I cannot go into the conditions that surround that tragedy, but I can call your attention to one or two things that bear upon the question of the type of the man. Before he died, written in his cell on the eve of the execution, was Joe Hill's last will:

My will is easy to decide,
For there is nothing to divide.
My kin don't need to fuss and moan--
Moss does not cling to a rolling stone.

My body? Ah, if I could choose,
I would to ashes it reduce,
And let the merry breezes blow
My dust to where some flowers grow.

Perhaps some fading flower then
Would come to life and bloom again.
This is my last and final will.
Good luck to all of you, JOE HILL.

"This is the type of man you are asked, because he was honored, because some odd hundred thousand workers who suffer and who wander and who live in the jungles of labor as he did, and because he wrote songs that they understood, songs that because their songs, to judge as the author of the songs and bring in a verdict against Tom Tracy. Mr. Cooley will parade the songs one by one. Remember that behind any words he voices, any thought he expresses, behind it all was a human soul, a human soul passed, a human soul that lived as you and I, a human soul that had rights that had been trampled upon, and who attempted to voice those things.

"With all the oratory he can display Mr. Cooley will read the song, 'Christians at War.' A song that Mr. Thompson designated as a satire. You recollect that when the European war broke out both parties in that conflict called to their aid and said they were acting under divine guidance; that the Kaiser was fighting under the name of God, and that the British and French governments were allied with the Almighty. It is not for me to attempt a settlement of that dispute. History will say that of all the tragedies of the Twentieth Century, the most tragic thing of our modern life is that we of different nationalities, but bound together by all other ties, should be engaged in a death grapple. But that is not the issue here. But I cannot at this time anticipate wherein and how this literature presented by the State helps you to decide the question of who was the aggressor on November 5th.

"Who was the aggressor on July 31st when James Rowan was arrested and brought into the city court? McRae comes in and tells him to get out of town. An intervening series of events and Levi Remick is run out of town. Who was the aggressor? Sheriff McRae! On August 22nd Rowan and Remick were both in the union hall. McRae comes in and orders them out of town. Who was the aggressor? That night Thompson and others came up to Everett--who was the aggressor then? Next morning, with Kelly treating them half way white, along comes McRae and takes away one of the boy's money. Who was the aggressor? We come now to the deputies meeting at the Commercial Club on August 30th. Who was the aggressor? Had any of their members been beaten up? Had anything happened to their members whatsoever? Not at all! Yet murderous blackjacks were put into the hands of the membership of the club. Was James Rowan the aggressor when he was railroaded out of town and beaten? Who was the aggressor at the time of the 'Wanderer' outrage? Old Capt. Mitten, old John Berg, Edith Frenette? Who was the aggressor with Henig? With Feinberg? With Roberts? You have the testimony of Cannow, you have the testimony of Schofield, you have testimony showing the instructions given to the deputies. No one denies it. Here is a series of acts leading up to October 30th, in which on each and every occasion McRae and his deputies, either regular or citizen deputies, were the aggressors. I said, who were the aggressors? Is there any question in your mind who was the aggressor up to Beverly Park? Any question in God's world who had done the dirty work up to that time? The State would have you believe that the I. W. W., with its membership coming from the four corners of the country, changed complexion practically over night, changed their whole ideas and their methods. I do not believe it and you do not believe it.

"The excuse the State gives for the actions of the deputies is that in the case of large numbers they could not give due process of law. Gentlemen, I refuse to believe that the Government is bankrupt in its capacity to protect itself thru legal and lawful measures of law enforcement. I have yet to sit in a court room and hear a plea on social and governmental bankruptcy such as is the plea of counsel for the State.

"The machinery of the government was there but it was not the kind of machinery that McRae wanted to use. It was not the kind Clough wanted to use. It was not the kind of machinery the executive committee, whoever they were, sitting behind the closed doors of the Commercial Club, wanted to use.

"And these members and leaders of the Commercial Club passed resolutions stigmatizing their own citizens, member of their own community, property owners in their own town, as well as the I. W. W., when they declared for an open shop. How do they stigmatize them? 'Professional agitators!' Yes. Lloyd Garrison was a professional agitator. Wendell Phillips was a professional agitator. The men who fought the battle that lay the ground work that made Abraham Lincoln possible, the men who are at work to better American politics, those men have all been professional agitators.

"Now on the boat they were ninety-nine percent I. W. W.'s, just a few passengers had bought their passage before. On the dock they were all citizen deputies, persons interested therein, and persons satisfactory to the men who had been stationed there to see that nobody but the right ones got on the dock. That means that as far as the first shot was concerned the two classes of witnesses are in some degree interested parties. The State put on a total of twenty-two witnesses, one of them not a deputy, all of whom testified that the shot came, or they thought it came from the dock, and of that number thirty-seven were I. W. W.'s, and twenty-four were not members at all but were Everett people from all walks of life.

"Now counsel is going to discount the value of the testimony of these citizens. Well, Mr. Cooley, we used the only kind of witnesses that you, in all of your care exercised in advance on November 5th, left for us. In the exercise of the highest degree of judicial advance knowledge they saw to it that nobody got any closer to the end of the dock than the landing. We could not help that. You barred us from the dock; you barred us from access to the facts. We did all we could to get the facts, and if we couldn't get any closer it was not our fault. And the man who barred us from access to the facts is the man who is least qualified to come into court now and urge that our witnesses are disqualified in the face of the evidence that they disqualified them. But those witnesses could testify, and they did testify, to the very definite and specific facts--the first tipping of the boat, the rushing of the men, the volley firing, all of those matters.

"At the eleventh hour there came into this case a man by the name of Reese, a member, if you will, of the I. W. W. Back in the Chicago stockyards they have a large pen where they keep the cattle which are to be driven to slaughter. In that place they have had for years a steer that has performed the function of going into the big pen where all the cattle are, and, after mingling with them, then walking out thru a gate. He is trained to do it, he is skilled at it, this steer--and after walking around with the poor peaceful cattle that don't know they are about to be killed, this steer then goes up an incline, the gate is opened and the other cattle follow, and when he gets to the top of the incline there is a door and he turns to the right thru this door to safety and his followers turn to the left to death. That's George Reese! Proud of him? George Reese, the man who reported day by day with his confederates! To whom? During one period to the Pinkerton agency in regard to the longshoremen's union; during another period on behalf of the Pinkerton Agency to the Commercial Club in Everett. George Reese! A man who doesn't even come under the approximately dignified title of a detective; a man whom Ahern, of his own agency says, 'Well, he wasn't a detective, we used him as an informer.' Informer! A human being that has lost its human color.

"In connection with the testimony of Reese let me call your attention to the Industrial Relations Commission Report, a report that our friends of the Commercial Club had read and knew all about:

"'Spies in the Union: If the secret agents of employers, working as members of labor unions, do not always instigate acts of violence, they frequently encourage them. If they did not they would not be performing the duties for which they are paid. If they find that labor unions never discuss acts of violence they have nothing to report to those employing them. If they do not report matters which the detective agencies employing them can use to frighten the corporation to cause their employment, they cannot continue long as spies. Either they must make reports that are false, in which case discovery would be inevitable, or they must create a basis on which to make a truthful report. The union spy is not in business to protect the community. He has little respect for the law, civil or moral. Men of character do not engage in such work, and it follows that the men who do are, as a rule, devoid of principle and ready to go to almost any extreme to please those who employ them.'

"That is the descriptive adjective, definition and analysis of the character of union informants made by the National Industrial Commission, appointed by President Wilson, and composed of nine men, all men of national standing, three representatives of labor, three representatives of capital and three representatives of the general public. That is their definition, description and classification of that character of testimony.

"Mr. Vanderveer closed yesterday by saying that this struggle, whatever your verdict is, will win. If yours is a verdict of 'not guilty,' Tom Tracy must take up again the job of finding a job, the endless tragedy of marching from job to job, without home, wife or kindred. His offense consists of being a migratory worker. I beg of you to render a verdict that has due regard and consideration for the tragedy of our twentieth century civilization that does not as yet measure out economic justice.

"Your verdict means much. The wires tonight will carry the word all over this land, into Australia, New Zealand and thruout the world. Your verdict means much to the workers, their mothers, their children, who are interested in this great struggle. We are not in this courtroom as the representatives of one person, two persons or three persons; our clients run into five or six hundred thousand. We are here as the mouthpiece of the workers of America, organized and unorganized, and they are all behind our voices.

"Tom Tracy stands here in your control. You are the ones to determine whether or not he shall walk out free, whether or not he shall be branded for all times with the most serious felony known to the law, namely, that of a murderer. Can you find it in the evidence to bring in a verdict of guilty in this case?

"In conclusion, ladies and gentlemen, we want no compromise here. When you retire to your jury room I beg of you not to compromise with any verdict other than not guilty. We don't want manslaughter in this case, we don't want second degree murder in this case; it is either first degree murder or an acquittal, one or the other. Allow none of those arguments that we, as lawyers, know are made in the juryroom to influence your honest verdict in this case. We ask at your hands, and we believe with all the sincerity of our souls, that the evidence warrants it, we ask a verdict of not guilty for the defendant, Thomas H. Tracy!"

If the speech of prosecutor Black was a whine, that of prosecutor Cooley was a yelp and a snarl. Apologies, stale jokes, and sneers at the propertyless workers followed one another in close succession. The gist of his harangue was as follows:

"In this case I am going to try simply in the closing argument to select a few of the monuments that it seems to me stand out in this case and that point a way to a proper verdict.

"Now, in the first place, a whole lot has been said here as to the nature of the controversy that existed for a number of months before November the 5th, 1916, between two classes of individuals there at Everett. Upon the one side were the people who were living in the city of Everett, who had made their homes there, who had come there for the purpose of carrying out their future destiny in that city. It was their home. Their interests were there. Their families were there. And upon the other side were a class of people who did not claim Everett as their home, who did not come there for the purpose of amalgamating with the citizenship of the city of Everett. They were not coming there because they had work there, nor because they were seeking work there; they were not citizens of Everett, nor were they seeking to become citizens of Everett, and there arose a controversy between the citizens of Everett on the one hand and these people from the four corners of the earth upon the other. The first thing we want to inquire into to find out if we can from the testimony in this case exactly what was the nature of that trouble that existed between them. Why was it that upon the one hand there was a band of people congregated down here in the city of Seattle from all over the land and making one excursion after another, attempting to break into the city of Everett? Why was it that there were citizens of Everett up there seeking to do only one thing, asking only one thing, that these people keep away from Everett?

"Was it a fight to win the right of free speech on the one hand? Was it a fight on the other hand of a group of individuals who were simply seeking to force the open shop? Or was it a fight of a more serious nature on either hand?

"I grant you that the origin of the trouble arose because a man was seeking to speak upon the streets of Everett and he was stopped. But long before November 5th that original incident was lost sight of and forgotten. The controversy had grown to a magnitude that overshadowed the original incident. It was necessary in order that you might understand the situation with which the people of Everett were confronted that you should be apprised of the nature of the organization to which those people belong, that you should be apprised of the nature of the place in the world that they had attained, and that you should be apprised of the nature of their propaganda that they were seeking to inject into the city of Everett and that locality.

"I want to say right here and now that I have the highest regard for organized labor. Labor has the right to organize. There is not any question about it; there is not any dispute about it. Labor has organized and it has made a manful fight, and all down the pages of history you will find that labor, thru its organization and thru its lawful methods pursued under its organization, has gradually bettered its condition.

"It is not a question, and never has been in this case, as to the right of the labor men to organize; the right of the laboring man to use all of the lawful methods for the purpose of bettering his condition. The question in this case is as to whether any organization, whether it be a labor organization or any other, has the right to use unlawful methods; whether it has the right, because it may have the power, to use unlawful methods.

"Now there were coming into the city of Everett people representing this organization known as the Industrial Workers of the World. What was the propaganda that they were seeking to introduce there? They put upon the stand their chief exponent in this part of the country, to tell you what their purpose was in coming to the city of Everett, and what the doctrines were that they were teaching to the people that congregated there in the city of Everett. Mr. Thompson was upon the stand for about two days, and he delivered to this jury a lecture, which he says was a resume of three lectures that he gave up there in the city of Everett. He was asked whether or not he talked on sabotage and he told you what he had to say about it. He said sabotage was 'a conscious withdrawal of efficiency, a folding of the arms.' But Thompson says it is never the destruction of property, and yet the organization that sends him out to talk on sabotage puts out right along with him the literature that has been adopted by the I. W. W. as a part of their propaganda, defining what sabotage really is and it gives the lie to Mr. Thompson. It may mean working slow; it may mean poor work; it may mean folding of arms; it may mean conscious withdrawal of efficiency. So far sabotage is legal and anyone has a right to use it. But it may mean the spoiling of a finished product, it may mean the destruction of parts of machinery, it is the destruction of property. 'Sabotage is a direct application of the idea that property has no rights that its creators are bound to respect.' It does not say that certain kinds of property has no rights, but that there is no property that has any rights that are bound to be respected. But Thompson says that is not sabotage.

"Sabotage is what? Where is that old song book? Let us see whether it means simply the folding of the arms. (Cooley dived into a mass of pamphlets, but being unable to locate the song book he came up with Elizabeth Gurley Flynn's pamphlet on Sabotage, reading from it as follows:) 'Sabotage itself is not clearly defined. Sabotage is as broad and changing as industry, as flexible as the imagination and passions of humanity.' Why, if it consisted simply of a folding of the arms, if it consisted simply of the withdrawal of efficiency, there would not be much flexibility to it, would there, and the passions of humanity would have nothing to do with it? That language means that sabotage means anything that the imagination can devise and the passions of men adopt, if they had the power to use it and get away with it. Oh, it is not wrong! No matter what form it takes it is not wrong, because they say so in their official publication. 'The tactics used are determined solely by the power of the organization to make good in their use. The question of 'right' and 'wrong' does not concern us.' Put the two together. Legality and illegality, those terms have no meaning to a man of the Industrial Workers of the World. Why? Because there is no law that they are bound to respect except the law that is made by them in their own union hall. It is in the song book, 'Make your laws in the union hall, the rest can go to hell.' That is the class of people that we had to deal with, who were coming there to Everett.

"In Spokane there were twelve hundred convictions upon a valid ordinance, and yet, after they had convicted a hundred of them they didn't stop coming, and two hundred, and two hundred and fifty, and five hundred, and they continued coming there until the city jail of the city of Spokane was filled, until the county jail of Spokane county was filled, until an old deserted school house was filled, and then until an army post jail was filled. A species of sabotage! They weren't willing to accept the verdict of one jury, or ten juries, or of a hundred juries, that they were violating the law. They had made their laws in their union halls and they were going to speak at a certain place, upon a certain street of Spokane; and they were going to compel the citizens of Spokane to let them speak when they pleased, where they pleased, and say what they pleased; and they kept it up until after Spokane had the expense of a thousand trials and had upon its hands a thousand defendants it began to think it had better yield and let them speak when they pleased, where they pleased and say what they pleased. And Spokane was licked!

"Is it any wonder that the citizens of Everett said 'If you have no regard for law we will meet you on your own ground; we are not going to be bankrupted; we are not going to be hammered into defeat as they were in Spokane; we are not going to have you sabotage us in that manner by your numbers; we are not going to have your people coming from the Dakotas, from Montana, from Oregon, and from all over the various parts of the state of Washington, and camping down on us until we surrender to you. We are going to keep you out of here.' Now, that may not have been strictly legal, but it was human nature.

"There is not hint anywhere in the argument of either counsel for the defense in this case as to what was ever done in the city of Everett by the I. W. W. that would constitute new methods and new tactics. Do you remember the testimony over a period of time there before Labor Day that they allowed them to speak without interference and a meeting was held there and every time they went up with a chip on their shoulder and were not satisfied when no one interfered with them. When they were there speaking on the corner of Hewitt and Wetmore somebody was going around the city of Everett distributing a nasty stinking chemical in the theater building, into the store buildings, into the business houses, into the automobiles. And the paper in the next issue gloats over it and intimates that the reason the officers did not arrest Feinberg was because they were evidently too busy chasing a cat of malodorous tendencies. When Thompson was upon the stand and was being questioned about sabotage and about cats; he could tell you what a cat was, he got a bit halting in his speech when he was asked what it meant when they said that the claws of the cat had been sharpened, when he was asked what a 'sabcat' meant, but when he was asked as to what a cat of 'malodorous tendencies' was he said he didn't know unless it was a skunk. But by that was meant that the skunk accomplishes sabotage. You never heard of a skunk that did sabotage by simply a withdrawal of efficiency, never!

"Now as to incendiary and phosphorous fires. Fire Chief Terrell tells you that up to the date of September 28th, the date of the first known phosphorous fire in Everett, that up to that time, in all of his experience upon the fire force of the city of Everett, it never had come to his knowledge or observation in any way that a phosphorous fire had ever occurred in the city. It occurred there, known to be a phosphorous fire, and within a period of two months at least two other fires occurred, mysterious, the origin unknown because the fire had progressed to such an extent that no one could tell how it did start."

Mr. Vanderveer: Didn't your detective go to work September 21st?

Mr. Cooley: Yes sir, he did.

"And they would have you believe that the detective was up there setting those fires. That, I know, is an insinuation not supported by any evidence in this case, and the detective wasn't working up there, he was operating down here in the city of Seattle. He was sending his reports to Blain before the Wanderer started out, before the men started out on October 30th, and that goes a good way to explain how it happened how these people were met on these different excursions and were not permitted to come within the city of Everett. They were trying to get into the city of Everett, to use their own judgment, to act on their own initiative, according to instructions that had gone out. And the officers stopped the thing before it started.

"What were they coming to Everett for, these forty-one men who were met? Were they coming to hold a street meeting? Forty-one men, enthused with the enthusiasm of the belief in their grand and glorious doctrine that they are teaching, forty-one men starting out as crusaders to carry the gospel of their organization to the benighted of Everett, forty-one going up there to be martyrs, to be beaten for the cause, and nothing else!

"I have told of the tactics and methods advocated, used and encouraged, by this peculiar, particular organization, so you can judge the character, purpose and intentions of the individuals that were seeking from time to time to force themselves into the city of Everett, in order that you may judge the two hundred and sixty that left on the Verona on November the 5th.

"But there is another matter you should likewise take into consideration in determining the character of the individuals of that crowd. Regardless of all environment, regardless of the effect of all legislation, regardless of all social conditions, men are born--not all with the same propensities, not all with the same natural ambitions, not all with the same qualifications, and out of the entire mass of humanity there is a certain percentage that were born without any ambition, born without any incentive; they go thru life without any incentive, constantly tired. Now I am not here to say that all the I. W. W.'s are that kind of people. I am not here to say that because a man is a member of the I. W. W. he is a tramp or a hobo. But there is a class that has been recognized in this country ever since the country existed, a class that don't want to work, that would not work if you gave them an opportunity. These are a percentage, I don't know how large, and I say that every one of these people are members of the I. W. W. organization or should be. Why? Well, in the first place, you don't have to show any qualification for any line of work. You don't have to make proof of anything whatever to become a member of that organization. And is there any inducement for a man who has been drifting here and there, walking the ties, counting the mile posts as he walks from one place to another, to join that organization? It gives him a pass upon every freight train that travels the length and breadth of the land. One of the best inducements in the world.

"There is another class of people in this country that are born with criminal instincts implanted in their very natures; they are scattered all over this land and we have them with us and we will always have them with us. There are men who are driven to crime thru misfortune; there are men who commit crime under the influence of environment; but there is a percentage of men who are habitual, natural and instinctive criminals. Now I don't say that because a man is a member of the I. W. W. he is necessarily and instinctively a criminal, but I do say that every habitual, instinctive criminal, who knows that he intends to violate the law upon every opportunity to satisfy his own criminal desire, has every inducement to become a member of that organization.

"There are a few uncontested and undisputed facts in connection with the occurrence at the dock. Jefferson Beard was killed on that dock. No doubt about that! The defendant was on the boat. No question about that! There is no question that the conversation between McRae and the people on the boat occurred substantially in the language that you have heard repeated here by witnesses for the State and for the defense, all agreeing that the conversation preceded the shooting. There is no dispute that McRae turned partially away from the boat and that one of the first three shots fired hit McRae while he was turning. The burden of the whole argument of the defense was that when somebody on the boat saw McRae put his hand on his gun he was justified in shooting. It is not material whether Tracy shot Jefferson Beard or somebody else. It is not material whether Tracy fired a gun or not, provided the evidence in this case satisfies you beyond a reasonable doubt that Tracy was a party to the conspiracy to go up to the city of Everett to violate an ordinance of the city of Everett.

"But have you any doubt that Tracy was seen on the boat? Hogan saw the window and he saw a man with his face at the window shooting in his direction. Hogan wasn't thinking of the exact angle at which the boat was standing to the dock, but he knows he was standing at such an angle to the boat that he could see a man in a certain place on the boat. And he testified he did see him.