by Howard Fast
“I come to that circumstantial evidence now. When Sacco and Vanzetti were arrested, Sacco possessed a pistol. That pistol was introduced as evidence in the trial, and a famous ballistics expert, Captain Proctor by name, was called in to examine the pistol found on Sacco, and to offer an opinion as to whether a bullet taken from a murder victim’s body was actually fired from this pistol. A capable ballistics expert is able to make a fairly certain determination in such cases, and Captain Proctor was considered to be this type of expert. He made his examination, and he came to the conclusion that the bullet used in the murder could not have been fired from the pistol owned by and found on Nicola Sacco. However, the District Attorney in the case seems to have discussed the matter with Captain Proctor, and rather than have his case shattered, prevailed upon Captain Proctor to answer the question: ‘Have you an opinion as to whether bullet number three was fired from the Colt automatic which is in evidence [Sacco’s pistol]?’ in this strange manner: ‘My opinion is that it is consistent with being fired from that pistol.’”
“There is an answer, gentlemen, that will echo and reecho for a long time in the pages of history. What does consistent mean in this case?” The jury evidently took it to mean that he identified Sacco’s pistol as the murder weapon. Such it would seem to me in plain English, as we know plain English. However, it meant nothing of the sort. It was the compromise decided upon by the District Attorney and the ballistics expert, and afterwards, in a deposition, this same ballistics expert said the following:
“‘Had I been asked the direct question: whether I had found any affirmative evidence whatever that this so-called mortal bullet had passed through this particular Sacco’s pistol, I should have answered then, as I do now without hesitation, in the negative.’”
“One would think, gentlemen, that this evidence, reversing the earlier statement of the ballistics expert and coming to light through a deposition filed in one of the appeals of Sacco and Vanzetti, would warrant a new trial. But that is not the case. I spoke of evidence before, as offered by people who see a thing with their own eyes. I have now balanced evidence against possibility, probability and certainty, because all too often one sees with one’s eyes what one desires to see with one’s eyes, even as a weak man says with his tongue; words which a venal district attorney and a prejudiced judge desire him to say. In the United States, in Massachusetts, and in South Braintree as well, a situation was created in 1920, which caused a number of people to desire to see men like Sacco and Vanzetti the accused and convicted in a murder case, and thereby as men deserving the death sentence. Were not these two men reds, and therefore enemies of all that is decent? Were they not radicals, and therefore unlike ordinary decent and upstanding citizens? Were they not against capitalism, which is certainly the only and God-given way of life in these United States? Were they not opposed to war, and had we not just finished a war to make the world safe for democracy—a war to which no decent and upright citizen could be opposed? Did they not speak sneeringly of the profit system, and were we not dedicated by God and the Constitution to an eternal system of industry which bases itself upon profits, upon the unflagging desire of one man to make more money than the next, even if he has to sweat it out of his neighbor’s hide?
“These, perhaps, are very harsh questions for me to ask, gentlemen, but I ask them so that you may be the better instructed in the practice of law. I know full well the gravity of my statements. But no man faces life until he reconciles his own actions with the situations imposed by life. This makes for gravity. It made for gravity in the case of Sacco and Vanzetti, and before today is over, they will be made to pay with their lives for the beliefs they held, not for the crimes they committed. Evidence, gentlemen, can be master or servant, as I have shown to some degree, and will show even more concretely.…”
The professor lectured for twenty minutes more, yet when he had finished, he sensed that a very important thing he had wanted to say, remained unsaid. He had wanted to say that in a court ruled, owned and operated by the University President, the Governor of the Commonwealth and the Judge who sat in judgment, there could be no justice for two men like Sacco and Vanzetti. Yet if he had said just that, he would have closed all doors to his own future.
The lecture was over, but still he was held rigid by his thoughts. He felt a peculiar and particular weakness that always came upon him after he had been lecturing for a long while, and he wished, as always, that he could be immediately alone; but the students crowded around him, and some of them thanked him, and others clung stubbornly to things he had said. One of them expressed it thus,
“But surely, sir, they will not execute them tonight. What can we do? There must be something that we can do.”
“I am afraid there is nothing we can do,” he answered.
“But you don’t mean to infer, sir, that all of law is a mockery, that courts are worthless, and that there is no justice?”
This shocked him. He stared at the student who had challenged him with this, a red-headed, bright-eyed lad, and suddenly the Professor became even more somber, sober, and afraid. Well, it was a time for being afraid, the Professor thought ruefully.
“Did you mean that, sir?” the student insisted.
“If I meant that,” he found himself saying, “then my own life would be as wasted as yours.”
“Yet, everything you say adds up to injustice. How can there be justice if all forces of law create injustice?”
“Well, of course, that would be another lecture, wouldn’t it?”
He looked at his watch. He made excuses, and rushed away, shaking off the reporters who plucked at his sweat-soaked clothes and threw their eager questions after him.
Chapter 5
FINISHED with his breakfast and half way through his second cup of coffee, the President of the University stared fixedly at the portrait of Ralph Waldo Emerson, narrowed his eyes, and belched. He belched with prerogative, if not with grace; he picked his nose in the same way; this was what someone in the English department had referred to as “the lordly simplicity of arrogance,” partly an aphorism, and in part a non sequitur. He did things that would have marked another of like venerability as a dirty old man, but his fierce and somewhat incredible snobbishness still exempted him from that designation.
The instructor sitting opposite him finished his tale.
“Only now, only five minutes ago,” the University President said with disbelief. “It passes one’s understanding. I tell you, the Jew has erupted like a volcano. We will never hear the end of him.” Once again, he fixed his eyes—which someone had described as piercing—upon the portrait of Emerson. “I speak not of one man, but in general terms, when I say the Jew,” he explained. “Would you repeat what he said—the part about a thirst for blood?”
“I wouldn’t say he used just those words—”
At that moment the Dean of the Law School entered. He sniffed wrath, and joined himself to it. He assumed a station at one side of the broad, pleasant dining room, with its fine Chippendale furniture, its hand-blocked wall paper, and its lovely and faded eighteenth century hooked rug, placing himself directly under the portrait of Henry Thoreau, his hands folded comfortably across his plump, protruding belly.
“He is on his way up here, sir,” he said, trying to combine in one smirk both regret and anticipation. The President, however, paid no mind whatsoever to him, driving hard on the young instructor.
“No—no indeed? But so you reported it.”
“In effect, sir. I wish to be scrupulous.”
“A commendable desire not shared by too many,” said the President of the University.
“In my desire to be scrupulous, I must of necessity report his words with some scrupulousness. He inferred that there were certain people in high places who, out of a taste for blood also inferred, desired with absoluteness the death of these two Italians, Sacco and Vanzetti.”
“Ha! Precisely! A taste for blood.”
“Implicit, sir, if I may.�
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“Did you hear?” he asked the Dean of the Law School. The Dean nodded. “Not stated, but implied.”
“And you did not stop him?”
“I hardly could,” the Dean of the Law School protested. “I came into the room after he had been speaking for at least fifteen minutes, and I felt, quite correctly, I think, that any attempt to halt him would have been far more disastrous than anything he might say. This is something for us to consider, for he has placed himself in a powerful position, if I may say so. He is shrewd. He shares that quality.”
“With his race. They live on shrewdness. But I don’t see his position as so powerful. He has slandered honest men, and he must be made to pay for that. I am an old man, sir.”
“Many younger men have less vigor and youth.”
“That may be. Nevertheless, I must husband myself. The strength I use cannot be replaced. When a man passes seventy years, death sits at his elbow. Nevertheless, I did not spare myself. When I was called upon for public service, I came forward. I did not say that these were Italians. Am I prejudiced against Latins? Some would say I am prejudiced against Jews. Not so. Not so!” he repeated. “My ancestors planted a sturdy race on this soil, clear-eyed and fair of feature. We dealt with no such names as Sacco and Vanzetti then, but of Lodges and Cabots and Braces and Winthrops and Butlers and Proctors and Emersons, there were plenty indeed. And when I look around me today—where is that race? Yet I did not use this when I was called upon. When the head of this ancient Commonwealth asked me to serve in inquiry, weighing the facts in this case that has made our land like a trollop’s name on the lips of people everywhere, I did not refuse. I served. I examined the facts. I sorted the wheat from the chaff. I—”
He was interrupted in his words by the entrance of the Professor of Criminal Law; and then at that moment it seemed to the two men in attendance, the Dean of the Law School and the instructor, that the Professor of Criminal Law walked, indeed, where wiser men—and even angels—would fear to tread. Uncomely, squinting behind his glasses, he lumbered into the room and faced the President of the University.
“You wanted to see me?” he asked bluntly.
The President found he was trembling a little. “Age,” he thought to himself. “I am not properly armed for anger.” And he said deliberately, “I heard that at your lecture this morning, you said some things that a thoughtful man might find reason to regret.”
“The reports came quickly,” answered the Professor calmly, “but I said nothing that I see reason to regret. Nor do I consider myself unusually thoughtless.”
“Consider again, sir!”
“I have considered well and seriously,” the Professor replied. “I have lost count of the hours I spent weighing these matters. I decided that what must be said, must be said.”
For all the care with which he spoke, there was more than a trace of a foreign accent in the voice of the Professor. Some of his formulations carried that awkwardness which suggested echoes of another tongue, and when he pronounced a word ending with ing, he could not prevent the k sound from creeping in. Of these things, the President of the University was acutely aware; but his awareness was brushed all over with irritation, and this made him even more irascible than he ordinarily was. For several days now, he had contained within himself a fine comfortable feeling of achievement and power at the decision he and his companions on the investigating committee had come to. Never, never would he put it so bluntly and vulgarly as the Judge in the case had put it, when the Judge said, Well, I did give those anarchist bastards what was coming to them! Yet he couldn’t deny that he felt something of the same thing that the Judge must have felt. But all morning now, that feeling of achievement had been slipping away, dissipating, and when he heard of the ill-considered—as he thought of it—and violent lecture the Professor had given, the remainder of that feeling of achievement quickly disappeared.
What did they mean, he wondered now, when they said that the Professor was in a powerful position? Did they mean that approval—approval of decent people, and some not too unlike himself, old people well-located in Boston—might rest with the Professor of Criminal Law? Could they mean such a thing?
“You are very sure of yourself, sir,” the President said coldly.
“Yes—yes, I think I am.”
“And that gave you the right and the purpose to accuse people of desiring the death of these two men?”
“People do desire it—a few people in high places. The world knows it. I said it. I don’t regret saying it.”
“Meaning myself?”
“Sir?”
“You accuse me?”
“No—I never mentioned you,” the Professor said. “You accuse yourself, sir. Your feelings are hurt, but these two men will die tonight. How many times have you died, sir?”
“You are being insufferable!”
“Am I? Was their lawyer also insufferable? He was more eloquent than I am. I read his argument only once, but it remained with me. How did he conclude—if you cannot give these men a fair trial, pardon them, pardon them by all that is holy. Christians created a God that is merciful. You sit like God, with life in your hand. Did he say that or something like that? Only yesterday. Shall I forget that you enjoyed being executioner?”
Anger went away, and suddenly the President of the University was afraid. His ancestors were a poor, cold shroud. His ears hummed, as if that man the Professor of Criminal Law had just referred to, the lawyer of Sacco and Vanzetti, were standing before him again.
“Sit down,” he had said then to that other lawyer who had appeared before him a few days ago to make a last plea—standing before him then even as this Jew stood before him now. “Why must you stand and pace like that?” “I cannot argue sitting,” the lawyer had answered. “I cannot plead sitting. I am pleading now. If you cannot give these men a new trial, having heard so much evidence, then they should be pardoned. They are not to blame if the State of Massachusetts employs a judge who refers to men on trial before him as ‘anarchistic bastards,’ tells about how he will get them, and that ‘that will hold them,’ and boasts about what he had done to them and what he is going to, do. Sacco and Vanzetti did not appoint him and are not to blame if the State of Massachusetts tolerates him.
“If the Supreme Court of this State has no jurisdiction to alter what a judge has said, because it has to protect the discretion vested in the judge, then the only thing the State can do is to pardon these men, humiliating as it may be, humiliating as it is to every citizen in this State to have to admit that men can be treated as these men have been treated. We have to stomach it, to stand it; there is no way out of it. And any attempt to evade this, to gloss it over, to make black white, to stamp it down, to suppress it, will not do any good. Everybody is familiar with the case, all over the world. This evidence has been translated into every European language. They are as familiar with it in Germany and France as we are. We are up against the wall.”
“The ablest men in Massachusetts who respect the courts are forced into a corner. We have got either to make some explanation that won’t be accepted and that really can’t commend itself to our own judgment as sincere, candid and fair, or else we have got to admit that this trial was a mistake and a miscarriage of justice, that it was unfairly conducted, that there was a reasonable doubt, which has been enormously increased since, and that our courts have been unable to correct the error then made, and therefore the Governor should pardon these men, whether or not you now believe they are guilty, whether or not you think that in five years from now the evidence would be stronger against them or weaker against them. The day has gone by, the State has had its chance, the trial has occurred. These arguments have all taken place. The courts have finished, and this is the result of this case.”
“Now I am through with this case. I have done the best I could with it. I have labored here for years trying to bring about elementary justice, and if I fail I shall feel bitterly disappointed but not remorseful. I have done
what I could, and I ask you to do what you can to prevent what, if not prevented, will be to the everlasting disgrace of this State.”
“Sit down, can’t you?” was all he could think of saying to the lawyer then—when that argument was made. He had not even heard, with any perception, the words he remembered so cruelly now. But, finished with his plea, the lawyer for Sacco and Vanzetti had remained standing and looking at him, even as the Professor of Criminal Law now looked at him; and in his mind, the University President tried to formulate words that would not take shape. Words like I shall have to ask for your resignation. But he did not and could not speak those words. “All alone,” he said to himself.
“You’re an old man,” the Professor of Criminal Law said bitterly, “and yet you love death. Old man, you’re an executioner!”
“How dare you talk like that!”
The instructor watched and listened in horrified silence, but the Dean of the Law School cried, “Have you lost your mind?”
“Oh, no—no, not at all. Why am I wanted here?”
The old man, who was one of the high aristocrats of a nation that supposedly had no aristocracy, suddenly reread once again the document he had signed, and signed it again in his mind’s eye, his old hand trembling, as his eyes traveled down the lines he himself had dictated:
“The alibi of Vanzetti is decidedly weak. One of the witnesses, Rosen, seems to the Committee to have been shown by the cross-examination to have been lying at the trial; another, Mrs. Brini, had sworn to an alibi for him in the Bridgewater case, and two more of the witnesses did not seem certain of the date until they had talked it over. Under these circumstances, if he was with Sacco, or in the bandits’ car, or indeed in South Braintree at all that day, he was undoubtedly guilty; for there is no reason why, if he was there for an innocent purpose, he should have sworn that he was in Plymouth all day. Now there are four persons who testified that they had seen him;—Dolbeare, who says he saw him in the morning in a car on the main street of South Braintree; Levangie, who said he saw him—erroneously at the wheel—as the car crossed the tracks after the shooting; and Austin T. Reed, who says that Vanzetti swore at him from the car at the Matfield railroad crossing. The fourth man was Faulkner, who testified that he was asked a question by Vanzetti in a smoking car on the way from Plymouth to South Braintree on the forenoon of the day of the murder, and that he saw him alight at that station. Faulkner’s testimony is impeached on two grounds: First that he said the car was a combination smoker and baggage car, and that there was no such car on that train, but his description of the interior is exactly that of a full smoking car; and second, that no ticket that could be so used was sold that morning at any of the stations in or near Plymouth, and that no such cash fare was paid or mileage book punched, but that does not exhaust the possibilities. Otherwise no one claims to have seen him, or any man resembling him who was not Vanzetti. But it must be remembered that his face is much more unusual, and more easily remembered, than that of Sacco. He was evidently not in the foreground. On the whole, we are of the opinion that Vanzetti also was guilty beyond reasonable doubt.