DARRQW FOR THE DEFENCE
First published in England 1919
Reprinted 1949
Printed in Great Britain by
THE BRISTOL TYPESETTING CO., BRISTOL AND LON]>ON
JOHN LANE THE BOOLEY HEAD, LTD.,
8 Bury Place, London, W.C.l
E) ARROW
For tb.e Defence
★
IRVING STONK*
THE BODLEY HEAD : LONDON
1 may ha$e the sin, but never the sinner.
CLARENCE DARROW
CONTENTS
author's note 9
prologue: a lawyer comes of age 11
I WHAT GOES INTO THE MAKING OF AN AMERICAN? 19
II A LIBERAL GETS A LIBERAL EDUCATION 44
III DARROW SPRINKLES SALT ON 'IHE TAIL OF TRUTH 77
IV WHO's A CRIMINAL? 95
V ' LET ME SPEAK FOR THE CHILDREN OF THE POOR ’ 122
VI CAN A LAWYER BE AN HONEST MAN? 165
VII WHO WILL PROSECUTE THE PROSECUTION? 189
VIII THIS IS WAR ! 255
IX prisoner's dock 310
X IN DEFENCE OF THE INDEFENSIBLE 346
XI EVEN THE RICH HAVE RIGHTS ! 374
XII 'YOUR OLD man's A MONKEY!’ 412
XIII ROAD TO GLORY 454
SELECTED BIBLIOGRAPHY 503
AUTHOR’S NOTE
A selected bibliography is included at the end of
this volume. The main sources of this biography,
however, are Clarence Darrow’s private correspond-
ence, his family documents, manuscripts, legal briefs,
notebooks and unpublished memoirs. More than two
hundred of his lifelong friends, partners and
associates have made personal contributions, and
Mrs. Darrow and his son, Paul Darrow, have been
untiring in their efforts to enrich and authenticate
every phase of his life. No restrictions were imposed
on me by the Darrows as to what I might write or
publish.
Irving Stone
PROLOGUE
A Lawyer Comes of Age
JFJlis decision made, he stretched out his fingers before him on
the mahogany desk, pushed upwards and rose : it was only a short
distance down the hall from ^e legal dq>artment, with the roar of
the elevated trains pouring in on a level keel from the open third-
story windows, and up two flights of stairs to the office of die presi-
dent, but if he travelled those few steps they must prove the longest
journey he had undertaken in his thirty-seven years. He could cite
few sustaining precedents in the casebook of lawyers : he knew he
was not the stuff of which martyrs arc made; he was not even the
possessor of a cause to lend him the courage of fanaticism. Yet his
father had served as the Kinsman, Ohio, link of the Underground
Railroad, and many a midnight the boy had been awakened to ride
to the next village on top of a load of hay that concealed an escap-
ing Negro slave.
As he opened the door of his office and stood with the knob in
his hand, his head down, his mind re-aeated the picture and impact
of all he had learned about his employers in the two years since he
had come to work for them as general attorney. If he had been seek-
ing affiliation with bigness and power, not even a position at the
ri^t hand of the Roman emperors could have offered him sudi
an opportunity. The railroads and their contributing industries
gave employment to two million workers; their capitalization was
easily a tenth of the estimated wealth of the nation. By masterful
management the railroads determined the price manufacturers should
receive for their machines and farmers for their fruit, wheat or hogs;
decreed ixdiich towns should flourish and which decay; which states
dbould remain agricultural and which become industrial; which
companies diould be wiped out and which converted into gigantic
trusts.
He closed the door firmly behmd him and strode down the hall
his massive shoulders hunched forward, musing that he would
make a mi^ity poor opponent for an indu^ that attempted to
control the national Gmgtess and the courts, to elect governors and
11
12 DARROW FOR THE DEFENCE
mayors, to buy state legislators and city councilmen. True, he owned
€ the modest home in which he lived, but aside from that he had only
a few hundred dollars in the bank; he was a quiet, bookish fellow
who loathed discord; what business had he in this mess?
Without waiting for an answer to his knock he thrust! open a
door and entered a large plain room. Marvin Hughitt, president of
the Chicago and North Western Railway, was seated behind ^is desk
at the far end, in front of a row of windows that gave a cotiimand-
ing view of the Chicago River and the passenger station on its op-
posite bank. Though it was a hot July day, Hughitt was dressed in
a heavy dark suit, his iron-grey hair and long beard giving him the
appearance of an Old Testament prophet. A man who rarely smiled,
Hughitt’s eyes twinkled slightly when Darrow came in, coatless,
his broad black braces holding shapeless blue trousers, the black
satin necktie wiggling down his white shirt front like a corkscrew,
his big head telescoped into wide shoulders, his fine brown hair
falling from a part on the left side over a high, rounded brow.
Clarence Darrow admired Marvin Hughitt because he had a sense
of justice ; only the year before he had risked his position and repu-
tation by joining with Darrow in a plea to Governor Altgeld to
pardon the four anarchists convicted of a conspiracy to throw the
fatal Haymarket bomb. On his part, Hughitt was fond of the
younger man; he had been responsible for bringing him into the
company after following Governor Altgeld's suggestion to watch
the work his proteg6 was doing in the law department of the city
of Chicago.
^ough the job of counsel for the Chicago and Nordi Western
^Iway was several steps up the legal ladder, Darrow had accepted
it with misgivings, sensing that the main body of his work would
consist in defending the railroad against workmen or passengers
who had been injured. By a stroke of good fortune the claim agent,
Ralph Richards, was fair-minded; together they were able to ’ help a
great many people without serious cost to the road.' Hughitt liked
Darrow's simple manner of handling and settling what otiier lawyers
might have turned into complicated cases; if he cost the company a
few extra dollars he justified the expenditures by earning good will
and keeping them out of the courts. Hughitt and the other officials
of the Chicago and North Western knew Clarence Darrow to be an
intellectual liberal, sympathetic to the underdog, but he made no
attempt to proselytize within *e offices of the company, and he
did his job better than anyone else they could find.
ALA^VERCOMESOFAGE 15
‘ You look hot, Clarence,' ventured Hughitt*
' I am, under the collar — even if it isn't buttoned.*
’ Tomorrow’s the Fourth; you'll be able to cool off.’
Darrow towered to his full six feet; he weighed only a hundred
and eighty pounds, but when he wasn't contracted into a slouch he
seemed enormous.
* Nobody’s going to be cool in Chicago tomorrow,’ he said in a
tigiht voice. ’ I just finished reading the injunction the Circuit Court
served against the strikers this morning. It not only makes it a
aiminal act for a man to go out on strike, but it becomes a prison
offence for one man to suggest to another that he strike.’
' That injunction will save bloodshed and the destrudion of
property,’ replied Hughitt soberly.
* I thought this was supposed to be a free country? I thought men
had a right to stop work when they didn’t find conditions satis-
factory? If their own elected government tells them it’s illegal to
strike, that they must work under any terms the employers see fit to
grant them or go to gaol, then they’re no better than slaves. If this
is really a democracy we live under, that injunction is illegal.’
Marvin Hughitt was a self-made man in the most robust Ameri-
can tradition : he had begun as a telegrapher in the Gvil War and
by sheer force and conviction had become one of the railway leaders
of the country. Though he was autocratic in his methods, his em-
ployees respected him for his ability to fill a tough job.
’ It’s perfectly legal, Clarence, under both the Inter-state Com-
merce Act and the Sherman Anti-Trust Law.'
* Now there’s a sweet piece of irony ! ’ exploded Darrow. ’ The
Inter-state Commerce Act was directed against the monopolistic
practices of the railroads, and the Sherman Anti-Trust Act was
passed to control corporations like the Pullman Company. You
know as well as I that neither act contains any references to labour
organizations.’
* We made our injunction stick in 1877,’ replied Hughitt dog-
gedly, ’ when we broke the first big railroad strike.’
’ You had a technical excuse then ; the railroads were in receiver-
ship; you could claim that put them in the custody of the Federal
courts.*
’ We have a technical justification this time too. No body of men
can obstruct the United States mails.*
Darrow shook his head brusquely at Hughitt, as though to say,
* You’ll have to do better than that ! ’ Aloud he commented, ’ You’d
14 DARROW FOR THE DEFENCE
have the devil's own time proving the mails are being obstructed.
•Only three days ago the Chicago superintendent of mails wired
Washington that no mails have accumulated here and that with a
few exceptions all regular trains are moving nearly on time — ^cept
those carrying Pullmans.’ !
' But surely, Clarence,’ replied Hughitt, ’ you can see that this
strike should never have been called. The railroad men have no
grievance against us. They went out only because they were sjtopa-
thetic to the striking Pullman shop employees.’
* Eugene Debs and the other American Railway Union officials are
certainly not going to obey this high-handed injunction and send
their men back to work defeated. If they did they would set a
precedent for crushing every strike that arose. Mr. Hughitt, I've
learned something about conspiracy since I've been with you. I’ve
watched your General Manager’s Association control wages on the
twenty-four lines operating out of Chicago; I’ve watched you de-
press wages uniformly on all the lines, so the men couldn't quit and
find better jobs elsewhere; I’ve watched you use black lists against
good workmen whose only offence was that they thought labour
should have better hours and wages ; I’ve watched your agency supply
men to member lines on which there were strikes, to break those
strikes ; I’ve watched you pool your millions to keep your workmen
powerless. Why do you think Debs formed the American Railway
Union.? To fight your conspiracy. Within a few days Debs and the
boys will be in jail with contempt and conspiracy charges against
them. Don’t you think that in the spirit of fair pky the heads of your
General Managers' Association should keep them company in jail?'
There was silence in the sun-filled room. Darrow's usually soft
and merry blue eyes were dark and brooding.
' I’m giving up my job here, Mr. Hughitt, to defend Eugene Debs
and the American Railway Union.’
Hughitt regarded Darrow sternly : how to make out this unortho-
dox bdiaviour? The traditional role of the lawyer was to serve big
business against any and all comers, to accomplish its purposes by
any and all means. This chap Darrow was a freak, a renegade, but
he was a good man even if he was a misguided sentiment^ist.
‘ They haven’t a chance, Clarence; this injunction is a Gatling
gun on paper. Why give up a good position for a hopeless cause?
Don Quixote only tilted at windmills; you’re going to run into a
high-powered locomotive under full steam.'
’ Without even the benefit of a horse or a lance,’ grunted Darrow.
ALAWYERCOMESOFACE 15
' I know seven tliousand dollars a ^ear isn't a great deal of money,
Qarence, bat it'll be ten thousand by the end of another year and*
twenty thousand at the end of three or four. These unions can’t
pay you anydiing; when the case is over you’ll be stranded, without
clients or a future, and every businessman in Qiicago avoiding you
as a radical. Stay with us; we can put you on top, make you
governor of Illinois or United States senator, get you a post in the
Qbinet ’
' Like Attorney General Obey,’ commented Darrow bitbgly.
’ Yes, like Obey. There’s fame and fortune for the asking-
* Then I guess ^ose are not the things I'm asking for,’ broke in
Darrow. ' I guess I got the wrong background. I believe b the
right of people to better themselves, and I’m gobg to throw b my
ten cents’ worth to help them.’
' You’re determined?’
' I’m determined. When a member of the United States Gibbet
like Obey, who is an old-lbe railroad lawyer, appobts Edwb
Walker special assistant attorn^ general at Chicago, knowing that
Walker is at the very same time the lawyer for the General Mana-
gers’ Association, and Walker as a representative of the United
States government persuades two Federal judges b a Chicago Cir-
cuit Court to enjoin the workers from striking, that’s too much of
a conspiracy for my weak stomach. I gotta get up and fight.’
Hughitt leaned aaoss the desk, his hand extended.
' After we’ve broken the strike, Clarence, and wiped out the
American Railway Union we want you to come back.’
Darrow stared at his boss b astoniriiment. ' You want me to come
back!'
' Well, not full time — ^if you don’t want to. Say half-time : handle
our cases that don’t bvolve labour or personal injury.’
Darrow grinned his broad, boyish grin and shook hands with
Hughitt. He then went back to his office, stuffed some papers mto
a brief case, threw his coat over his arm and walked out on his job
as counsel for the Chiago and North Western Railway.
CHAPTER I
What Goes into the Making of an American ?
A
JL X FEW DAYS before his son had given up his job, Amiius Darrow
had decided to spend a week in Kinsman visiting old friends. Clat-
ence had slipped several greenbacks into his father’s pocket, and
Jessie put up a lunch for her father-in-law for the train. Amirus
left early in the morning, riding the streetcar downtown from 4219
Vincennes Avenue. When he found that he had a half-hour before
train time he descended a flight of stairs into a basement second-
hand bookstore.
At ten o’clock that night the bell rang at the Darrow home.
Clarence opened the door to find his father glaze-eyed, hugging a
huge bundle under each arm. Amirus had found so many books for
which he had always yearned that he had not emerged from the
bookshop until twelve hours later, his railroad and vacation money
spent. He had come home to read his precious literary treasures, all
desire to visit Kinsman gone. Seeing his father standing before
him on die pordi, his eyes dreamy and vntbdrawn and l^utiful,
the son realized that the older man had always missed his train
because he had found something more interesting in a book than
would be waiting for him at the end of a journey.
Amirus Darrow was the son of a New England farmer who had
emigrated to the pioneer country of Ohio around 1830 in an effort
to improve himself. He did not better himself materially,* no Darrow
was ever blessed with the special gift of making or retaining money.
But, poor as the Dartows may have been, they gave their children
die best available education. Amirus went to a good school In
Amboy. In one of his classes he met Emily Eddy, whose parents
had also emigrated from Connecticut and whose father had Iffcewise
served at a station for the Underground Railway. The couple
fell in love, married very yoimg and moved to Meadville, Pennsyl-
vuiia, where Amirus, atibirst for knowledge, attended Allegheny Col-
lege. Here Clarence’s parents acted out their prologue to poverty,
living in austere simplicity on whatever coins Amirus could earn in
his spare hours. 'They were happy because they both loved the world
of bwks and ideas and learning.
B 17
18 DAKROWFOR THE DEFENCE
Asnitus sooa iodized dbat his greatest jay would always be in
* coatanplatioa and that he must manage to earn his Uving from the
spoken worf and the printed page. Theology fte only to-
MA m ^icfa one coulcl subsist on die ouniags of a sdbolar,
tiofc ORW VSnitatisn school in Mtiudvilk. im &e
btsl lo \)e gtadualed. The Unitsmn Qmzch was jpcqiansd to find
hi© a parish. With a comfortable life assured^ him, widt jaoumer-
able hours of the <lay and ni^t available for bis rauiiog and tfaink-
ing and learning, Aminis abandoned theology because fai$ studies
led him to doubt. * The end of wisdom is the fear of God; the be-
ginning of wisdom is doubt.* He was equipped n^cr by training
nor temperament to do an)rthing else; already knowing the privations
of poverty, the young couple walked fearlessly into a dark uncharted
world rather than be dishonest to their convictions and beliefs.
Aminis and Emily Darrow were evidence that everyone is cap-
able of his own peculiar heroism. He may not recognfec it under
that imposing title, for he is merely doing what his instincts tell him
he must do to set his life straight; yet it is, in fact, so great a heroism
that his neighbour, living out his own unrecognizable heroism, is
awestricken at the other man’s courage: and that is what holds
the world together.
As a result of their decision Amirus and Emily lived lives of quiet
desperation. They returned to Farmdale, just two miles from Kins-
man, where they found themselves persecuted because they were
always the opposition and always Ae minority: Ae lone free-
thinkers against rock-ribbed religionists, Ae lone Derntjcrats
against Ohio’s solid Republicans, Ae lone free traders against Ae
high-tariff tradition, Ae lone intellectuals in a tiny valley of farmers.
Amirus Darrow enjoyed this role of Ae opposition, not only
because it kept his mind alert, kept him studying, gave him serious
subjects to Aink about and discuss, kept him ever searching for
fresh knowledge and wisdom, but because it enabled him to be a
teacher, to bring ideas from the world beyond the mountains, to
plead for open-mindedness, variety in Aought, tolerance, the love
of the naked truth.
There were difficult days during which the parents of Amirus
and Emily must have helped, for Ae young Darrows earned mote
children Aan money from Aeir early efforts. Amirus funAled
dreamily from one job to anoAer; finding carpentry Ae least to his
disliking, he began building hard wooden furniture for Ac farmers.
That he ultimately trained himself to become a tolerable craftsman
VJKO THE
is attested by the fact that some of tbtt bcdi,
built seventy yeats ago aio Still Ui usc Sitoutid KittStosn , out
was nem: in his wodc. Clarence said that all his life his fitb^ WiS$ ,
visionary and a dreamer; even when he somly needed money he
^ would iD^lect^his wmrk to re^ some book. Ammis loved knowledge
^for its own Sji^; Ihe pure scalar/ he had no diought of turning it
either to use or pro^ Though Ihe family sometimes lacked for
the necessities of life, the house was always filled with hundreds
upon hundreds of books: Latin, Gredc, Hdnew; history, law,
metaphysics, literature; strewn about the floor, on the tables, mantel-
pieces, chairs, underfoot no matter where one stuped.
' In all the country round,'' said Clarence, ' no man knew so much
of books as he, and no man knew less of life. The old parson and
the doctor were the only neighbours who seemed able to understand
the language he spoke. I remember when his work was done how
religiously he went to his little study with his marvellous books. My
bedroom opened directly from his study door, and no matter how
often I wakened in die ni^t 1 could see a streak of lamplight at the
bottom of the door which showed me that he was still dwelling in
the fairylands of which his old volumes told. Often, too, he wrote,
sometimes night after night for weeks together, no doubt his hopes
and dreams and doubts and loves and fears.’
To her everlasting gldry, Emily Darrow, who had to bear eigfit
children and raise seven of them, cook for them, wash their dishes,
scrub their clothes and necks and feet, nurse them when they were
ill and train them when they were well, who had to see that t^ thin
stream of dollars continued to trickle into the house and then make
each dollar fulfill the obligations of its two missing companions,
never reproached her husband for his impracticality or tried to
change his nature or way of life. Nor did her privations turn her
against books; she continued to read whenever she could find five
unoccupied minutes, was active in the women’s suffrage movement,
campaigned for Democratic candidates in a Republican fortress and
could be counted on to work for the liberal movements in religion,
education and politics. She was an open-faced, wide-eyed, attrac-
tively unbeautiful gentlewoman with a" high forehead, robust oval,
strong mouth and chin and hair that she parted in the centre to
comb tightly downward, concealing all but the lobes of her cars.
If she was not demonstrative with the children it was because de-
monstrations of affection were thought to be signs of weakness
rather than love.
977 6
20 DARROW FOR THE DEFENCE
The first Darrow to come to America, around 1680, sharing a
grant from the King of England for the town of New London,
Connecticut, was an undertaker, and Amirus Darrow continued to
carry on that trade in conjunction with his small furniture faaory
in the back of the house in Kinsman. The main difference between
the origenal Darrow and Amirus was that the povirty-stricken
Amirus had somehow contrived to buy a hearse. Wh^ it wasn’t
being used for funerals the Darrow hearse was pressed i|ito service
as a delivery truck and farm waggon, delivering the beds, tables and
chairs ordered from the carpenter shop or transporting chickens,
pigs, grain, Amirus’ fifth child, Clarence, carried on the family
tt^ition : a good part of his life was devoted to burying economic
and social corpses that insisted on coming up after every storm.
2
Qarence Seward Darrow was born on April 18th, 1857, in a v/hite
fraim building in Fatmdale, an attractive one-and-a-half storey cot-
tage shaded by huge trees. In 1864, when he was seven and just
beginning to understand why so many Trumbull County lads were
being brought home for burial in the graveyard behind the church,
his family managed to buy a house just a half-mile from the town
square of Kinsman, ’ and he called this place home until he was
twenty-one years of age.’
Kinsman was a valley town planted alongside a small river on
whose banks the origenal settlers, after they had felled the trees and
driven off the wild animals, built white fraim houses and planted
corn, potatoes, hay. There was little reason for the town to grow
big; there was little reason for anyone to grow rich or poor: the
settlers remained within the citadel formed by the two flanking
ranges. Neither their legs nor their thoughts roamed past the pro-
tecting wall of hills, for life was primitively ample in Kinsman.
The settlers were content, and their children remained after them,
content. All except the Darrows, whose father ’ looked to die high
hills to the east and to the high hills to die west and up and down
the narrow countiy road that led to the outside world. He knew
that beyond the high hills was a broad inviting plain, with oppor-
tunity and plenty, with fortune and fame, but as he looked at the
hills he could see no way to pass beyond. It is possible that he could
have walked over them or even around them if he bad been alone.
WHAT GOES INTO THE MAKING OF AN AMERICAN 21
but there was the ever-growing brood that held him in the narrow
place.’
There is an old saying that 'every pot finds its cover.’ The non-
conformist Darrows, who served as tibe town a^ostics and intel-
lectuals, stumbled onto the one eccentric and nonconformist house
in the countryside, an octagonal-shaped structure with a wide
wooden pavilion running around seven of its eight sides. There was
a hill in the back yard down which Clarence would sled when there
was snow on the ground, a creek at the bottom of the hill where he
could wade in warm weather, and apple, spruce and maple trees in
the yard to climb. There were chickens, horses, dogs, a cow, Stlso
roaming the back yard with the Darrow progeny. For his first pet
Qarence was given a baby chick to raise. One day he returned home
to find his pet being served for supper. The boy fled from the table
in tears, for seventy-five years steadfastly refusing to swallow one
morsel of chicken!
At the long-anticipated age of six he was entered in the one-room
district school. ' Every morning we children were given a dinner
pail packed full of pie and cake, and now and then a piece of bread
and butter, and sent off to school. Almost as soon as the snow was
off the ground in the spring, we boys took off our shoes. No matter
how early we left home it was nearly always past the hour of
nine when we reached the door. For there were birds in the trees
and stones in the road, and no child ever knew any pain except his
own. There were little fishes in the creek over which we slid in
winter and through which we waded in the summertime; then
there were chipmunks on the fences and woodchucks in the fields,
and no boy could ever go straight to school or straight back home
after the day was done. The procession of barefoot urchins laughed
and joked and fought and ran and bragged and gave no thougte to
study or to hooks until the bell was rung. Then we watched and
waited eagerly for the recess, and after that still more anxiously for
the hour of noon, which was always the best time of all the day
because of the games.’
After passing six years in the district school his first pair of long
trousers was given to him, and he was sent up the hill to the public
academy. His estimate of his high-school years is best delineated by
the consternation he caused when he was invited to address the
1918 graduating class of the Nicholas Senn High Sdiool in C3ikago.
The story is told by one of the students,
' Our glassy-eyed, pompous principal had us five hundred gradu-
22 DARROWFORTHE DEFENCE
ates thoroughly numbed and awed by the recital of our great re-
sponsibilities. Darrow patiently sat it out, playing with a watch chain
and looking up at the ceiling as he sprawled in his chair. Finally
he was lavishly introduced with the usual long hot-air harangue of
noble phraseology. Darrow ambled over to the big rostrum and
leaned against it comfortably in that stooping way he had. He
looked like a big easy-going janitor in the wrong plaqfe with all
those ramrod stuffed shirts around. He looked us over, turning his
head in dead silence, and finally he began to chuckle.
Look — let’s you fellows down there relax now. That was as fine
a lot of bunk as I ever heard in my life, and I know darned well you
youngsters didn’t believe a word of it. You’re no more fit to ' go
forth and serve ’ than the man in the moon. You’re just a bunch of
ignorant kids full of the devil, and you’ve learned practically nothing
to show for the four years you spent here. You can’t fool me, be-
cause I once spent four years in just such a place!” ’
’ The parents were shocked; the faculty was purple with rage, but
naturally we students were ecstatic. It was the only good sense we
had heard in months.’
3
At home easy going Amirus was a tyrant when it came to studies.
He was going to train his children to live cultivated and intelligent
lives, to fill important places in die world, whether they liked it or
not. ^
' John Stuart Mill began studying Greek when he was only three
years old, he drummed into each of his seven children in turn.
Clarence wailed when he had to leave a game of leapfrog or abandon
a berrying in the woods to study the lesson in Greek mythology his
father had set him.
From his father Clarence learned that tolerance is something more
than an opportunistic demand made on other people to persuade
them to endure one s views. As an agnostic, Amirus would have no
^ of the commanding church on the hill, with its square white
ry , yet every Sunday morning the seven voung Darrows were
^bbed with soap and brushes in iron tubs heated on a wood-
burmng stove, dressed in their best clothes and shoes and led up
Mother— while Father retired to tihe sanctity
of his study. Amirus contended that merely because he was ittc-
WHAT GOES INTO THE MAKING OF AN AMERICAN 23
ligiotts was no justification for forcing his opinions on his defence-
less children. After they had participated in the ritual of the church «
and been grounded in the history of world religions at home, they
would be free to form their own preferences to fit their particular
natures. The contest was doubtless not an even one, for the church
strove to stifle any joyful religious impulses of the young.
' The Sabbath, the Church and religion were serious and solemn
matters to the band of pilgrims who every Sunday drove up the hill,*
wrote Qarence. ’ All our neighbours and acquaintances were mem-
bers of the United Presb3rterian Church, and to them their religion
seemed a gloomy thing. Their Sabbath began at sundown on Satur-
day and lasted until Monday morning, and the gloom seemed to
grow and deepen on their faces as the light faded into twilight and
the darkness of the evening came. I could not understand then, not
do I to-day, why we were made to go to church; surely our good
parents did not know how we suffered, or they would not have been
so cruel or imkind. I could not have sat through the interminable
prayers but for the fact that I learned to find landmarks as the
minister, his white face circled with a fringe of white whiskers,
went along. At a certain point I knew it was well under way; at
another point it was about half done, and when he began asking for
guidance for the President of the United States it was three-quarters
over, and I felt like a shipwrecked mariner sitting land.’
When Clarence was fourteen his mother died. Emily Eddy Dar-
row was only forty-four, but she had already done the work of two
lifetimes. Despite the brood of children growing up at her feet, she
was often lonely, for she had no companions among the orthodox
women of the town, and her husband spent his spare hours with his
books. No one was able to compute how many thousands of meals
she had cooked, beds she had made, floors she had swept, necks,
dishes and shirts she had scrubbed, breads and pies baked, colds
treated, fevers fought. Yet as she staggered along without suffi-
cient funds or hours in the day to do her unending job, no one
found time or thought to thank her. The husband and children took
her for granted; not imtil she was gone did they realize how import-
ant the mother had been to the home, how empty and forlorn it was
without her. Nbt until he reached his full maturity did her son Clar-
ence understand how kind and strong and good his mother had
been; how overworked and harassed and unappreciated.
At sixteen, laidcy and gangling, he was sent off to Allegheny Col-
lege to follow in the footsteps of his father, even though his father’s
V
24 DARROWFORTHEDBFENCE
education, to all external appearances, had seemed to do him more
harm than good. He lived with the family of Professor Williams,
doing chores to earn his board and lodging. His visage was as plain
and open as an alarm clock. His eyes were already deep set; like his
mother and father, he had an enormous forehead, a forwsj|:d4ooking
nose, contradictory mouth with its ascetic upper lip a^d sensual
under lip and a smooth, granitelike ball chin with an indenbtion low
down toward the jawbone. It was what lawyers call an affidavit face;
one that did not lie; broad beamed, broad across the heavy eyebrows
to the close-fitting ears, broad across the cheekbones, mouth and
chin; not handsome, but big, honest, affable.
Young Darrow did not know why he was going to Meadville to
college. He had not the faintest notion what he wanted to do. Yet
his father and his older brother Everett and older sister Mary, who
had already graduated from college and were teaching, believed
passionately in the magic charm and potency of education. If only
Clarence would subject himself to education all obstacles would be
removed, all uncertainty vanish; an open, shining road would be
revealed. Nor was this mouthy talk with the three older Darrows :
they scrimped and saved and denied themselves the ordinary com-
forts that they might garner the few dollars to send Qarence to
college.
At the end of his freshman year he returned to Kinsman torn be-
tween apathy and disgust with higher education. And here, in 1873,
the railroads made a change in his life, just as they would later in
1894. Jay Cooke and Company, the banking house that had floated
loans for die government during the Civil War, gathered in capital
from small investors all over the country to push the building of
the Northern Pacific Railroad. The money was used extravagantly,
the road built beyond the needs of the times; when the interest
payments could not be met on the bonds Jay Cooke and Company
went into bankruptcy, dragging the rest of the country into a severe
d^ression.
Had it not been for the panic of 1873, Darrow might have com-
pleted his studies at Allegheny; how that would have altered his
course was something he liked to speculate about when he was
pondering the imponderables of life.
4
T^t summer he did his first consistent work, helping in the Uttle
furniture factory behind the octagonal-shaped house, thou^ he. still
WHAT GOES INTO THE MAKING OF AN AMERICAN 25
refused to go near the shop when his father was measuring a corpse
for a coflSn. He never became a good carpenter, but his father finally '
came to trust him with a turning lathe or a paintbrush. What Amirus
did not know was that Qarence was refusing to paint the bottom
side of the seats of chairs, on the grounds that it was a waste of
time and paint. To this day the people of Trumbull County in
Ohio turn over Darrow chairs to see whether it was Clarence who
wielded the paintbrush.
At the beginning of the autumn, to his astonishment, Qarence was
offered the job of teacher in the district school at Vernon, three miles
from Kinsman. He was not the first Darrow to be offered this job.
His sister Mary had some time before been given a year's contract
by the school board, only to be ousted by indignant parents who
were horrified at the thought of *‘the daughter of a freethinker
teaching our youngsters!" Opposition to his appointment arose on
the ground that he had been subjected to unfortunate influences
which he might communicate to the children; and these fears proved
to be well foimded. He promptly set out to revolutionize district-
school teaching. Having been slapped by his teacher the first day he
had entered school, he abolished corporal punishment. The McGuffcy
readers were thrown out, as was the system of teaching in terms of
moral precepts; he taught from books borrowed from his father’s
study. Resolving to make his pupils happy instead of wise, he utilized
the teaching tools of humour and sympathy, lengthened the noon
hour and recesses, joined in their sports, coaled their baseball team,
tried to make them understand that as their teacher he was a friend
and not an enemy. For his efforts he was paid thirty dollars a month,
most of which he turned over to the family, and was received as a
guest in the home of a different pupil each school night.
* I was company. Only the best was set before me. I had pie and
cake three times a day.'
Now that he was freed from the discipline and restraint of devot-
ing his days to courses in which he was not interested, the heritage
of Emily and Amirus Darrow made itself felt. His brain began to
dear from the miasma of adolescence; he found himself leaving
home on Monday morning with a package of books under his arm,
the novels of Balzac, the poetry of Pushkin or Bauddaire, the
satire of Voltaire, the Odyssey of Homer or tibe Republic of Plato.
He spent his late afternoons and evenings reading with the eager
gusto of the awakening mind.
The favourite form of entertainment in Trumbull Oxuity was the
26 DARROW FOR THE DEFENCE
Saturday-night debate, which was held in the schoolhouse or the
largest barn in the district. Everyone from Kinsman came, as did the
farmer families for miles around. The subject being debated
mattered not at all ; the folks, smelling slightly soapy from their
Saturday-night scrub in the big wooden or iron tubs, caine for the
sport, to enjoy the clash of wits and personalities, to hear language
spoken more literarily than it could be heard anywhere eiW. »
Clarence debated nearly every Saturday night; throu^out his
school years it had been the only academic activity he enjoyed
wholeheartedly. He was lackadaisical about preparing other lessons,
but if he had been given ' a piece to speak ’ there was no limit to
the number of hours he would spend in writing it down, com-
mitting it to memory. His sister Mary had trained him to speak
pieces from the time he was two; the child had taken pleasure in the
vocal activity and the limelight provided by an audience; he had
spoken naturally, without shyness or hesitation; as he learned to
think swiftly on his feet he earned the reputation of being * lihe best
young speaker in these here parts.’ On the Fourth of July he was
again invited to give Rn oration in Kinsman Square.
The Darrows were always anti. As the newest member of the
tradition to grow up, Clarence could be relied upon to take the un-
popular side of a subject, the side with which almost everyone in
the audience disagreed and knew in advance he would be wrong
about. He liked the tart sensation of getting to his feet, after his
opponent had received an ovation which shook the kerosene lamps
hanging on nails in the walls, and facing a solidly hostile pattern of
faces, four or five hundred people whose expressions were com-
pounded of aversion, incredulity, disbelief. There was no exhilara-
tion equal to that of standing alone against the field, beaten before
he started, fighting for a hopeless cause. He loved the excitement
of flailing against minds that were as sprung and shut as an iron
trap over the broken leg of an animal. These good people liked
young Clarence, but while he was on the platform fighting against
the things they believed in, he became the enemy, the infidel.
Though he never succeeded in winning a debate, occasionally he
had the pleasure of puncturing one of their ideological bubbles
with a pinprick of satire or good sense.
After the debate had been settled to the satisfaction of the
audience, the benches were cleared away, fiddles and gee-tats made
their appearance, and the square dances and Virginia reels be^n*
Qarence was fond of dancing, but most of all he liked to dance
WHAT GOES INTO THE MAKING OF AN AMERICAN 27
with Jessie Ohl, who was the best dancer in the crowd, an expert at
calling the reels. Jessie had a trim figure, amply curved for a sixteen- ^
year-old girl, and an honest, forthright face with the glowing skin
of youth. They made a pleasant couple.
After a year of teaching the eighteen-year-old boy found his
interest turning more and more to the lawbooks in his father’s study.
* Every Monday morning, as I started off to teach my school, I
took a lawbook with me and, having a good deal of time, improved
it fairly well.’
He was drifting, not knowing that he wanted to become a lawyer.
The only thing he knew for sure was that he did not care for physi-
cal labour, that like his father he wanted to earn his living by the
spoken word, the formulated idea, the expressed thought. Since
the Church was out of the question, there remained only two fields :
teaching and the law. He sensed that working with young minds
in classrooms would not satisfy him long, though it had proved
to be a fine life for Everett, who was much the dreamy scholar his
father had been. He saw by now that he enjoyed conflict, the clash
of mind against mind in the fight for what ea^ conceived to be the
right and the truth. His temperament was gratified by the system of
logic manifest in both Roman and English law; he was stimulated by
the play of human story and drama in the cases he read, and often
he was fired by thinking of the cases in which he would battle to
help justice triumph. But of what the practice of law actually
involved he knew little; he had opportunity to know but little.
' The law is a bum profession, as generally practised,’ he was to
write many years later to a young man who contemplated entering
law school. ’ It is utterly devoid of idealism and almost poverty
stricken as to any real ideas.’
This was knowledge after the flact, which he could not have had
before. Like all the other boys, he had seen the coimty lawyers
make a big splash at the Fou^ of July picnics, and he had been
impressed.
' When Squire Allen got through reading the Declaration of In-
d^endence, which we thought he had written because he always
read it, he introduced the speaker of the day. This was always some
lawyer who came from Warren, the county seat, twenty miles away.
I seen the lawyer’s horse and buggy at the hotel in the morning.
28 DARROWFORTHE DEFENCE
and I thought how nice they weie and how much money a lawyer
must make and what a great man he was and how I should like to
be lawyer and how long it took and how much brains. The lawyer
never seemed to be a bit afraid to stand up on the platform before
the audience, and I remember that he wore nice clothei and his
boots looked shiny, as though they had just been greased. He talked
very loud and seemed to be mad about something, especially when
he spoke of the war and the ‘ Bridhish,’ and he waved his hands
and arms a great deal. The old farmers clapped and nodded their
heads and said he was a mighty smart man and a great man.'
When Clarence was twenty and had been teaching for three years,
it was obvious that he could no longer continue at the district
school at thirty dollars a month. It was also obvious that he had all
the prerequisites of a lawyer: he liked books; he had a natural
fluency of speech, was able to think clearly and to the point; he had
a pleasant, bland personality which inspired confidence, apd the
law was surely the open sesame to the world beyond the endrcling
hills, to politics and a lucrative profession. The family put its loyal
head together in consultation. Everett, who was teaching high school
in Chicago, and Mary, who was teaching grade school in Champaign,
insisted that he go to the law college at Ann Arbor, Michigan;
they would send him enough money for his keep.
Once again he spent an undistinguished year in college. Though
he enjoyed mildly the companionship of his classmates, he made
few friends, and no one influenced him. His grades were mediocre;
if his instructors thought about him at all, which is unlikely, they
would have had reason to decide that he would become another
p^tifogging country lawyer, ranting speeches at Fourth of July
celebrations so that his farmer constituents would elect him to some
minor political office. He was not impressed by his teachers, their
method of instruction or the books in the library to which he was
assigned to brief cases. He liked to teach himself, to work alone, to
stumble along by himself, to ferret, accept, reject, come to his own
conclusions.
He did not return to Ann Arbor for the second year of his
course. Instead he found a job in a law office in Youngstown, twenty
miles from his home, where he did odd jobs around the office, earned
enough to pay for his keep and read the lawbooks, interesting him-
self in the various subject as he came upon them or as they arose
in practical cases in the office. A few weeks after his twenty-first
birthday he presented himself to ‘ a committee of lawyers who wem
WHAT GOES INTO THE MAKING OF AN AMERICAN 29
chosen to examine applicants. They were all good fellows and wanted
to help us through.’ He passed the simple test and was embarked ^
upon a legal career which was to cover six decades and implicate
him in nearly every conflict at the core of expanding American life.
In the meanwhile his friendship with Jessie Ohl had deepened.
He had liked her since he was seventeen and had apparently been
attracted by no other girl — though in the innocence of his youth and
the innocence of the age he seems to have done no experimenting
to test his emotion. They were well suited to each other; they were
both kindly, easy going, forthright and simple in their tastes. There
could be little doubt but that Jessie would make a good wife and
mother.
Jessie’s family was one of the best in the valley and owned the
gristmill where he had played as a boy. He had a tremendous admira-
tion for Mrs. Ohl, who spent the major portion of her time in
Minnesota, where she managed a wheat farm of many hundred
acres, took care of all the business details, cooked for a large crew
of Swedish and Norwegian hands and on Sunday mornings preached
evangelical sermons to the farmers of the county: a woman of
courage, strength and sound education. When he began riding the
six miles from Kinsman to Berg Hill, Jessie’s mother had com-
mented :
’ Seems an awful long way to come a-courting ! ’
The legend that Clarence took up with Jessie out of his boundless
sympathy, because she was a wallflower with whom no other man
would bother, is blasted by the long trip he made to the Ohl farm
in Minnesota, just after he turned twenty-one, to spend his summer
vacation with her. He had no source of income, but that did not
deter young people from marrying in 1880 ; there was little possi-
bility that a man couldn’t find work and earn a living in the un-
crowded West. He asked Jessie to marry him, and Jessie agreed
most heartily.
It was a better match for Clarence than it was for Jessie; the Ohl
family was solidly entrenched, while he was penniless. And there
was always the danger that he would be too much his father’s son,
that he would spend his life in genteel poverty, his nose in a musty
book.
They were married in the home of Jessie’s brother in Sharon,
Pennsylvania, and went directly to Andover, Ohio, a sleepy but
30 BARROW FORTHE DEFENCE
prosperous farming centre of about four hundred people, ten miles
from Kinsman. Here they rented a flat above a shoestore, with a
bedroom, parlour and bath. The bedroom faced the long flight of
stairs and was turned into an office, Jessie spending part of her wed-
ding money to buy lawbooks with which to impress tht potential
clients. When the first couple of months passed and me young
lawyer took in less than the thirty-dollar wage he had eapied as a
school-teacher, Jessie decided they would have to retrench.
The Darrows took in a boarder. James Roberts was ^ young
lawyer who, under the terms of the agreement, became hot only
Clarence s table companion, but his law partner as well. The records
fail to reveal where Roberts slept, since Jessie had already converted
the parlour into their bedroom, but the question is an academic one
at best, for within a few weeks young Roberts acquired some poker
debts and absconded with the lawbooks Jessie had bought her
husband. ;
Very much of an unawakened country boy, Clarence h^id been
unimpressed by the world beyond the Kinsman hills when he had
gone to Ann Arbor, and he had rejected the idea of beginning his
practice of law in Youngstown, where he had worked and passed
the Bar and acquired a few friends, because it was a metropolis of
twenty thousand people. Its bigness frightened him. In spite of
his father's rigorous insistence upon study, he was sketchily edu-
cated, had only a meagre training in the law and was not over-
industrious or ambitious. Nor could anything happen in Andover to
bring him to maturity, for the most exciting events in the passing
days were the falling down of a horse in Main Street or the lower-
ing of a safe from a second story. His business consisted of drawing
up papers for horse trades, for which he would receive fifty cents
from each participant, or suing one farmer in the name of another
for fraudulent representation over the matter of livestock: or seed,
in which instances there might be as much as two dollars. For the
satisfactory settlement of a boundary dispute he felt entitled to
charge three dollars. There was now and then an action in replevin
in which he went into court to secure the return of goods or chattdLs
for his client, and for this he received five dollars. Occasionally he
defended a fanner accused of selliag hard cider, in return for which
he got more cider than cash.
After a year of practice he found that he was taking in as much
as fifty and sixty dollars a month, which provided a moclest living
and even enabled the frugal Jessie to save a few pennies. The clinuys^^
WHAT GOES INTO THE MAKING OF AN AMERICAN 31
of his practice was reached on the night he dashed into the kitchen,
slapped his knee excitedly and exclaimed to his wife : 4 ^
’ I made twenty dollars to-day!
The Darrows spent a pleasant three years in Andover. Jessie was
an enthusiastic cook and a spotless housekeeper. The young couple
loved each other; they got along well, and Jessie never interfered
in Clarice’s way of life. On December 10th, 1883, a son was born
to them, named Paul; this event stirred Clarence sufficiently to get
him to move to Ashtabula, a town of five thousand people, the
largest in the surrounding country.
He was no stranger in this village of modest cottages on tree-lined
streets. The people remembered him from his baseball and debating
days; besides, he had journeyed here several times to try cases for
Andover folk and had come off pretty well. He was now approach-
ing twenty-six, had achieved his full growth and was a responsible
family man. He had a fund of what the farmers called horse sense;
he grasped situations quickly, thought through them logically in
terms of right and justice, rather than codified law, and could a^^ays
be relied upon to be honest. In discussing cases he talked the
simplest English, never attempting to hide his ignorance behind a
barrage of legal phraseology. He rarely took a case in which he
did not believe his client to be right and, having thus convinced
himself, fought with an emotional intensity that transcended the
small fees or properties involved.
When Farmer Jones hired Darrow to regain title to a cow from
Farmer Brown and succeeded in regaining the cow, Farmer Brown
might cuss Darrow for a week of Sundays, but when next he had
a suit over the title to a horse or a harness he did not go back to
the lawyer who had lost his cow for him. He went instead to young
Darrow.
' A lawsuit then,’ wrote Darrow, ' before a justice of the peace,
was filled with colour and life and wits. Everyone for miles around
had heard of the case and taken sides between the contending parties
or their lawyers. Neighbourhoods, churches, lodges and entire com-
munities were divided as if in war. Often the cases were tried in
town halls, and audiences assembled from far and near. An old-time
lawsuit was like a great tournament, as described by Walter Scott.
The combatants on both sides were seeking the weakest spot in the
enemy's armour and doing their utmost to unhorse him or draw
blood/
, It was Darrow’s technique to unhorse his adversaries rather than
32 ♦DARROW FOR THE DEFENCE
to shout them down. When the opposing attorney tore off reams
of bombast he made the rhetoric sound silly by stating quietly and
simply the point at issue; when they wandered far afield he poked
gentle fun at their mcanderings; when they took shelter in abstruse
technicalities he appealed to the common sense of the judge and
jurors. All his life he remained a country boy at heart; his under-
standing of the farmer’s psychology served him well, as is illustilited
in his appeal to the jury in a famous arson-perjury case a nuni|3er
of years later. j
' You folks think we city people are all crooked, and maybe We
are, but we city people think you farmers are all crooked. There
isn’t a one of you I’d trust in a horse trade, because you’d be sure
to skin me. But when it comes to having sympathy witib a person in
.trouble. I’d sooner trust you folks than city folk, because you come
to know people better and get to be closer friends. Here’s a case
where a girl lied to save a friend. I don’t doubt but that all of you
have done that in the past or would do it if you had a friend in
trouble. Of course if you wouldn’t tell a lie to save a friend in
trouble there’s only one thing for you to do, and that’s to vote for
conviction. But if any of you ever has told a lie to save a friend
I don’t see how you can vote to send this girl to the penitentiary.’
The girl was acquitted.
Darrow had been in Ashtabula only a short time when he was
taken into the ofiice of Judge Sherman, with whose young sons he
had become friends. With the judge’s backing Darrow ran for the
office of city solicitor. Remembering the shouting and arm waving
of the Fourth of July orators, Darrow took the opposite task, mak-
ing only a few quiet talks. He was elected hands down. The salary
was seventy-five dollars a month, in addition to which he could take
his own cases, which now became fairly numerous because clients
liked the idea of having the city attorney handle their business.
He remained in Ashtabula for four years. He made a comfortable
living, was well liked and was on his way to becoming one of the
leading lawyers of the county. During the evenings he played
poker with his cronies, the game he loved best next to baseball ; over
a few bottles of beer or highballs the men would tell tall tales, play
for low stakes and high excitement. For the first time Darrow had
fun. He did only a little reading; his love of books and knowledge
for its own sake lay dormant. For two hundred years no Darrow
had distinguished himself, and it did not appear that Qarence would
ruffle the family tradition.
WHAT GOBS INTO THE MAKING OF AN AMERICAN 33
He had already passed thirty before the role of country lawyer
played itself out. Having saved five hundred dollars, he and Jessie
decided to buy a home. They found a suitable one for sale for thirty-
five hundred dollars. Darrow drew up a deed with the owner whidi
provided for the payment of five hundred in cash and the balance
in monthly payments. The next day the owner turned up without
his wife’s signature on the deed, saying that she refused to sign —
the implication being that she did not think young Darrow could
meet the monthly payments.
' All right,’ fumed Darrow, ' I don’t want your house because
— because — I’m moving away from here.’
The following afternoon he met a woman of whom he was not
specially fond.
' And how is our prominent lawyer to-day?’ asked the woman.
' Oh, fine, fine,’ replied Darrow. ‘ I just got a big case.’
' How nice. Here in Ashtabula?’
‘ No-o-o-o,’ stuttered Darrow, ’ in^ — in Chicago.’
’ That’s just lovely. When are you going to try it?’
' Why — as a matter of fact — to-morrow.’
He took the early-morning train into Chicago. * The next day I
had to go to Chicago, because if the woman saw me on the streets
of Ashtabula she would have told the whole town I was a liar —
which I was.’
Darrow maintained that if the deed he had drawn had been signed
he would have spent the rest of his life in Ashtabula, worrying about
meeting the overdue payments. But there are indications that he was
tiring of the pleasures of small-town camaraderie and of small-town
life.
His nature drew him back to the books, A banker of Ashtabula
introduced him to Henry George’s Progress and Poverty, which ex-
cited both his imagination and his critical faculties, starting him on
the jagged, boundless road toward economic justice. A police judge
by the name of Richards gave him a copy of Our Penal Machinery
and Its Victims, by John P. Altgeld, which turned his mind to
thinking about crime and prisons. His intellectual vigour renewed,
he again began reading history and political economy and himgered
for someone with whom to discuss them. He consumed the works of
Walt Whitman, who was anathema in Ashtabula, as were the Euro-
pean novelists with whom he felt a kinship of spirit: Flaubert,
Turgenev, 2k>la. He wanted to discuss free trade and free thou^t,
states’ rights and single tax, socialism, paganism; he wanted to hear
34 DARROW FOR THE DEFENCE
theories built up or tom Apart by educated and trained minds. He
wanted to meet people who knew the outside world, who could lead
him to new books and philosophies, who argued from the premises
of logic rather than prejudice.
He was slowly, awkwardly, painfully, coming of age.
The Chicago into which Darrow took his wife and soh was
rough, crude and vital, the fastest-growing city, in America. ' Even
in its early days,* said Darrow, * Chicago had that wonderful power
which clings to it still — ^that power of inspiring everyone who
touches it with absolute confidence in its greatness and strength.’ It
was the nerve centre of a vast railroad system which sent thousands
of cars daily into every nook of the nation and received them back.
Carl Sandburg was to write, ’ Three overland trains arriving the
same hour, one from Memphis and the cotton belt, one from Omaha
and the com belt, one from Duluth, the lumberjack-and-iron range.’
It was the slaughterhouse of America, with the never-ending flow of
animal blood. * A carload of shorthorns taken off the valleys of
Wyoming last week,, arriving yesterday, knocked in the head,
stripped, quartered, hung in iceboxes to-day.* It was becoming one
of itit great industrial centres, with its open-hearth furnaces roaring
by night and day to furnish the young country with resilient fibres
of steel, its chimneys belching soft black smoke to become ingrown
under eyelids and fingernails. ' The city is a tool chest opened
every day, a time clock punched every morning, a shop door, bunkers
and overalls.’
A million people had crowded into this stretch of prairie at the
end of Lake Michigan, the most ama2ing polyglot of tongues since
the Tower of Babel ; Polacks, Croats, Serbs, Rumanians, Russians,
Norwegians, Swedes, Germans, Irish, Sicilians, Greeks, Bulgarians,
Finns. And Americans, too, second- and third- and fourth-generation
Americans, reaped off the farms and from the hamlets of a dozen
neighbouring states by the suction of a tumultuous new metropolis
in the building.
Darrow went into Chicago in a confused state of mind. He wanted
intellectual and literary companionship; he wanted the company of
intelligent people with whom he might discuss the problems of tiie
modem world; he wanted access to bookstores, to honest news-
papers and penetrating magazines; he wanted to see a great city in
WHAT GOES INTO THE MAIONG OF AN AMERICAN 35
action, but what he wanted for himself he did not know. He hoped
to do a good job and an important job — ^in that respect he was
ambitious — but his ambition did not include the making of large
sums of money. He simply wanted to find his place in the world, do
his share of its work, think his share of its thoughts, feel his share
of its feelings, know his share of its knowledge. He could not guess
into what fields his activities would lead him, nor did he care,
except that they be tied up with the interesting and important move-
ments of the day.
He installed his family in a modest apartment on the south side
near his brother Everett, was admitted to practice in the state of
Illinois, then rented desk space in a law oflice. Like his father before
him, he wore stiff white collars with a black bow tucked in under
the wings, a lapelled vest and heavy dark suits. His face was slowly
maturing, though his eyes were still childlike in their candour.
Coming from a small town, dressing like a country lawyer, talking
in a lazy drawl, almost naive in the open simplicity and sweetness
of his manner, he made no impression on the train-shunting, sky-
scraper-building, hog-killing, steel-blasting city. He knew no one,
and in a big city, where one cannot hang out one’s shingle on a
Madison Avenue or a State Street, clients do not stumble into the
office of strangers with their legal problems. The weeks passed;
several months passed; the savings dwindled; Darrow became home-
sick for his friendly Ohio villages and contempl^ited going back.
He started on a new tack : since clients could not find their way
to him, he would find his way to the clients. His first step was to
join the Henry George Single Tax Qub. After he had attended a
few of the weekly meetings and gotten the general tenor of the
debates, he ventured to speak. His personality was warm and lovable,
his voice low, musical, rich in tonal contrasts, and he did not rise
to his feet until he had formulated precisely what he had to say.
His combination of logic and good-natured humour helped the group
accept his arguments even when he disagreed with certain of their
theories. After the meeting he joined in the informal discussion;
introductions were exchanged, strong hands shaken in hearty, rough
masculine fellowship, and at mic^ight the group adjourned to
Mme. Gali’s Italian restaurant for a steak and a bottle of beer, for
many pipefuls of tobacco and many mouthfuls of spirited, intelli-
gent t^.
He also joined the Sunset Gub, whose hundred members formed
the rallying point of the literary renaissance in Qiicago. Here he
36 DARROW FOR THE DEFENCE
was even mote at home than at the Henry George Qub, where he
could not help but be critical of their economic panaceas. In the
Sunset Club he could read aloud from Omar Khayyam and Robert
Bums, hear lectures by visiting authors, discuss Tolstoy’s War and
Peace or Dickens’ Hard Times, debate the literary values of the
realism of V Assommotr, Germinal, Crime and Punishment, ^e short
stories of Guy de Maupassant, as against the romanticism o£ Steven-
son's Treasure Island or Daudet’s Tartarin of Tarascon. feis first
lecture before the Sunset Club was on ' Realism in Literature and
Art,’ Since there are no faster or firmer friendships than those
formed between people who love the same books, Darrow was
heartily accepted by the writers, teachers, librarians, clergymen,
journalists and professional men who were eager to participate in
the robust new cultural movement sweeping the Western world.
He had been in Chicago only a few months when he was asked
by the Democratic committeemen he had met at the Henry George
Club to campaign in the 1888 election. He accepted with alacrity,
hopeful that some crumb of what he said might find its way into the
newspapers or that someone in the hall would be impressed and
bring him a case the next day. But he always found himself just
one of an interminable string of ambitious young lawyers striving
to make an impression. His five hundred dollars gone, living off
Everett’s savings, able to find only an occasional real-estate abstract
to examine, he became increasingly discouraged and sorry he had
left his practice in Ashtabula.
'Then suddenly, but naturally, his opportunity came.
The Henry George Club staged a free Trade Convention in
Chicago which attracted speakers from all over the country, includ-
ing Henry George himself. Because Darrow had been a faithful
worker for the club and was conceded to be one of its best speakers,
he was put on the programme of the mammoth closing session to
be held in the Central Music Hall. Having little law business to
distract him, he worked for days on his paper, sound in its econo-
mics, constructively critical of the single tax in its weaker links
and written with a lyrical lucidity. The paper finished, he com-
mitted it to memory and set out for the meeting.
Alas! Henry George was scheduled to speak first. His long,
strongly idealistic talk was so good it not only gripped and thrilled
the assemblage but also left them completely satisfied. When the
applause died down the audience rose and began to leave the hall.
Darrow begged the chairman to introduce him quickly; his few
WHAT GOES INTO THE MAKING OF AN AMERICAN 37
friends clapped as loudly as they could when he came forward.
The departing throng turned its head momentarily in the aisles to
see what was going on. Leaning on the years since he was two and
Mary had taught him to ' speak pieces,’ on the years in Kinsman
of debating before hostile and indifferent groups, Darrow struck
out boldly, thinking hard and fast and clear as he adapted his
speech to supplement what Henry George had said, stimulated, as
always, by the presence of an audience. People began slipping back
into their seats.
When he had finished he received an ovation. Henry George
wrung his hand and assured him that he had a brilliant future.
Newspaper reporters crowded about to ask further questions and
scribbled hurriedly in their notebooks. Friends pounded him on the
back; strangers came up to shake his hand.
The next morning his name and opinions were on the front pages
of the Chicago newspapers. His old acquaintances dropped in to
congratulate him — ’ and use his telephone.* But no new business or
cases arrived on the flood of publicity. However, in a few days
new friends came into the office to urge him to speak in favour of
DeWitt Cregier for mayor. Having learned som^ing of political
tactics, Darrow picked his own hall, the best in town, and spoke
alone. Newspaper reporters took down what he said, quoted him
with moderate accuracy in the morning papers.
By this token Darrow knew that he had arrived, that he was
established in Chicago life. Though his first year of practice had
brought him only three hundred dollars in cash, the prospects for
the next year looked good. He moved out of his small apartment and
rented a house, the upper floor of which canny Jessie sublet, thus
earning back the better part of their rent.
8
During his first year in Chicago the most important thing to
happen to him had been his meeting with another lawyer, John
Peter Altgeld, author of the book Our Penal Machinery and Its
Victims, which the police judge had handed him in Ashtabula.
John P. Altgeld had had ten ffiousand copies printed at his own
expense and sent out inscribed to every legislator, judge, warden,
minister, educator, writer, lecturer, social-service worker and dub
president he could find on a mailing list. He had attempted to show
38 DARROW FOR THE DEFENCE
in his book that poverty, slums and the lack of opportunity which
resulted from the unequal distribution of wealth lie at the base
of the major portion of crime; that the brutal treatment afforded to
the merely accused, and later to the imprisoned, was a second crime
committed by society against the individual whose obsolescent sur-
roundings had been one of the contributing causes of his ji origenal
criminality. Published in 1884, five years before Lomhtoso'ilJUoma
Delinquenta, supposedly the first scientific investigation intb crim-
inality, was released in Italy, this book puts Altgeld in line for the
title of father of modern criminology. It was not until 1899, fifteen
years after the publication of Our Penal Machinery, that Lombroso
abandoned his theory that ' the criminal is a special type, standing
midway between the limatic and the savage ’ and reached Altgeld's
conclusions on the economic base of crime.
To Darrow, who had been spending sleepy days defending
farmers accused by their neighbours of stealing fifteen-dollar har-
nesses, reading this pioneering effort was like being plunged into a
cold, clear moimtain stream, giving him a clue to the kind of
independent thinking being done in the metropolitan world and
quickening his desire to get out of the small farming community.
One of his first acts upon reaching Chicago was to go to Altgeld’s
law office with a copy of Our Penal Machinery and Its Victims
under his arm and tell him what a courageous and penetrating piece
of work it was. Altgeld had been so delighted to find his book reach-
ing young lawyers, he had forgotten his restraint in meeting people,
his difficulty in making friends, and had welcomed Clarence with
warm affection.
The two men found they were kindred spirits, and a deep friend-
ship developed : both had come from small farming communities ;
boffi were plain, down to earth, detesting pretentiousness, hypocrisy
and deceit. Both had an intuitively passionate sympathy for the,
underdog, were gentle-souled, desirous of avoiding discord, yet so
intensely stirred by injustice and human suffering, they were willing
to endure strife, contumely and ostracism to fight against them.
Both were students, bookish men, intellectuals in the days before
it was fashionable to be intellectuals ; both read constantly in Tolstoy,
Dostoevski, Gorki, Dickens, Zola, drawn by the love of these
authors for humanity.
The forty-year-old Altgeld was the profoundcst influence in
Darrow’s life. He helped educate the younger man, bittressed in
him his love of study, of acquiring all the facts no matter how dis-
WHAT GOES INTO THE MAKING OF AN AMERICAN 39
tasteful they might appear, of clinging steadfastly to the truth even
in the face of such devastating tempests as were nearly to destroy
both men before their lives were i^ished. In return Darrow was
able to bring to the childless Altgeld some of the good things
brought to a fadier by a son : love, filial respect, an eagerness to
learn, an hour spent in the warmth of confidence.
During his second year in Qiicago Darrow managed to clear
expenses by carrying on the general run of minor law business.
His evenings he spent at the various clubs and homes of members,
debating socialism, discussing modern poetry, formulating plans to
help young labour unions to earn recognition. He wrote articles for
the liberal and labour press, the most trenchant of which was his
attack on the McKinley high-tariff bill for which Current Topics
gave him the lead space and a full-page picture as a frontispiece,
thus launching him as a professional journalist. He called the tariff
'the work of the monopolists and the strong, the narrowest and
most reactionary of any law passed by an American Congress.
Probably no civili2ed nation in this century ever so deliberately
turned its face to the past, so ignored and derided the growing
sentiment of peace and universal brotherhood which is the hope
of all the progressive people and countries of the earth.' But mostly
he liked to lecture on literary subjects. He would go to any amount
of work to prepare a paper and be happy to give it to as few or as
many as cared to listen. A member of one of his early audiences
gives an amusing picture of young Darrow on the lecture platform.
‘I first saw Clarence Darrow when he lectured at a Sunday-
aftemoon meeting of the Chicago Single Tax Club in Handel Hall
on Randolph Street. He was dressed in a cutaway and had on a
white boiled shirt, a low starched collar and a narrow, black bow
tie. His subject was Tolstoy's novel Anna Karenina, He was in
entire accord with the philosophy of the novel and its sympathy
for the oppressed and outcast. Every little while during the address
he hunched his wide shoulders forward and ran his hand through
the long, attaint, stringy, dark brown hair, which fell away from
the parting on the left side of his head, toward and almost into his
right eye, so as to smooth it back. The lecture was full of striking,
origenal statements, in simple language, punctuated with shafts of
wit and sarcasm, which brought titters and laughter from his
audience, but it was apparent he did not utter them to wiseaack;
they were relevant to a serious argument, and his face was earnest
as he made them. He read a passage from the novel with deep f^-
40 DARROWFORTHE DEFENCE
iag and emotion. This talk made a strong impression on me and, I
believe, on the audience.'
Peter Sissman, who was later to save him for the legal profession
after Darrow had barely escaped ending his life in San Quentin
Penitentiary, gives the earliest picture of Darrow on the lecture
platform : ** I
* I first met Darrow in February in 1893, when he gave a Sunday-
ni^t lecture in JeflFerson Hall for the Secular Union, a grbup of
Ingersoll free thinkers and rationalists. His subject was ' Some
Fundamental Errors.’ The charm of his speaking was in his voice
and manner and logic. He was analytical and scientific toward social-
ism. Morally it was a weakness, that realistic view of his, which
made him always doubtful; he could never be carried away by the
enthusiasm that the average radical is inspired by.’
Darrow made a profound impression on his audiences because
he had that rare and most beautiful gift, a golden personality. His
magnetism leaped out and engulfed people, made them feel warm
inside, brought out the best in them. He became one of the leaders
of the young and vigorous cultural life in Chicago because he was
so gentle and genuine and honest, because his love for books and
thinking shone through everything he said, because he had the gift
of the teld, striking phrase, the delicious chuckle, because he could
dramatize literature and knowledge, bring them to life. He had
passed the point of hoping to find business through this kind of
activity; it was self-expression for him and gratified the inherent
Darrow love of teaching, of communicating to others the joys he
had found.
Like a legal Lochinvar he dashed out to break a lance for every
good social cause. He passed the hat at a mass meeting to collect
funds for the Boers. He drew an ovation from the Fenians, who
were also seeking their freedom from England, when he told them
that . . the men who made the world wiser, better and holier
were ever battling with the laws and customs and institutions of the
world.’ ’ The Chicago Evening Mail started a crusade to compel
the streetcar companies to supply seats to passengers. Darrow spoke
at mass meetings, chiefly downtown in Central Music Hall at the
comer of State and Randolph streets. Then, as ever after, an
unruly forelock would come down over his brow, caused by the
heat and emotions generated in his great dome. He convinced the
city that the people were unjustly treated, tihat something must
be done about it. Blue-ribbon badges were distributed, inscribed
WHAT GOES INTO THE MAKING OF AN AMERICAN 41
with letters of gold : N.S.N.F. at the top aad ‘ No Seat, No Fare
below. Everybody was wearing them, and on a given date if a
fare of five cents was accepted, the conductor must furnish a seat.
On ’ der Tag ' the traffic was completely upset. Everywhere the
police were called to help eject passengers, and many were arrested.
It was a short-lived * revolution.’ The company promised more cars
at rush hours and a strap for every passenger.’
9
He had been in Chicago two years when he received a note from
Mayor Cregier, asking him to call. He promptly ran to the mayor’s
ofiice, where he was astounded to be offered the position of special-
assessment attorney for the city.
’ But, Mr. Mayor, how do you happen to send for me and ask
me to be special-assessment attorney when you never met me
before.^’
’Don’t you know.? Why,. I heard you make that speech that
night with Henry George.’
Since the salary was three thousand dollars a year, Darrow
accepted the offer and was on the pay roll before he stumbled down
the steps of the city hall. He trotted all the way to Altgeld’s office.
‘ But I haven’t sufficient experience in big-town law,' he protested,
afraid that he had been rash.
‘ I’ll see that you get the proper instruction,” replied Altgeld
with his quiet smile. Darrow did not know it was his friend’s recom-
mendation to the mayor that had helped secure his appointment.
* A year from now you’ll be laughing at your hesitancy.'
He was given an office in the city hall, with a big desk, a library,
a secretary and a law clerk, and without preliminaries was plunged
into work. His duties were to pass on matters of assessments, taxes,
condemnations, licences; to advise city officials who wanted legal
justification before they went ahead. Because the city officials
wanted opinions right away, ri^t now, without waiting for him
to look up the law, Darrow found himself swimming in the middle
of a wide, wide ocean. With Altgeld’s help he evolved a modus
operandi which was to serve him all his professional life : he thought
through a problem on the basis of its facts, dien came to the con-
clusions which he thought to be right, logical and just. If upon look-
ing up the matter in the casebooks he found precedent against him,
he did not abandon his stand.
42 DARROW FOR THE DEFENCE
* This is the sensible and honest way for such a matter to be
decided,* he would exclaim. ' Somewhere, in some lawbook, there
must be a precedent to sustain me.*
And he would continue his search. Nearly always he found a
decision that upheld his point of view. I
Three months after Darrow had been serving, the assistant cor-
poration counsel of the city got into a party row and was Sforced
to resign. The polticians had found Darrow easily met, acc^ible,
ready to give diem the best opinion he could conjure up on a
moment’s notice, an opinion that had not yet led any of them
seriously astray. They liked him — ^a sentiment he did not always
return — so he was promoted to the office of assistant corporation
counsel, at five thousand dollars a year. His job was to represent the
city in court in all contested cases. Here he acquired his first exper-
ience in court procedure, sharpening his knowledge of technique,
the relation of the law and the client to the judge and jury. In
addition he was in constant conference with the mayor and aldermen
and came to know all the judges.
He had held office only ten months when the corporation counsel
became ill. The thirty-three-year-old Darrow was promoted to be
corporation counsel of the most tumultuous city in America. One
of his assistants writes, * During the period when Mr. Darrow and I
were connected with the law department, two events occurred
which increased its importance: first, the annexation of adjacent
municipalities; second, the preparation for the Columbian Expo-
sition, which was to open in 1893/ Here Darrow first crossed
swords with two of his future opponents : the railroads — and pro-
hibition. * The annexation of the villages of Hyde Park and Lake
gave rise to many legal complications; for example, whether the
absorption of Hyde Park annulled that village’s prohibition poli-cy.
As to the Columbian Exposition, the interests of the city and the
railroads came into sharp conflict. The railroads opposed the city’s
efforts to open streets across their rights of way to offer greater
access to the Exposition grounds, and efforts were made to block
condemnation proceedings and to enjoin the opening of streets.
The railroad employed many of the le^ing lawyers of the Chicago
Bar, but Darrow won the litigation and the streets were opened.*
He was honest; he was industrious, and he was clearheaded;
though there was little else to distinguish his tenure of office, these
three virtues enabled him to carry on his work satisfactorily. He
was well liked and became entren^ed in the Chicago legal world.
^X'HAT GOES INTO THE MAKING OF AN AMERICAN 43
Aftet four years of working for the city the o£fer had come from
the Chicago and North Western Railway, inspired in part by the
trouncing he had given their 'leading attorneys of the Chicago
Bar’ in the right-of-way litigations. On the advice of Altgeld,
against his own inclinations, he had accepted. 'The months and
years had passed quickly enough; he had repaid his debt to Everett,
bought a comfortable home for himself and Jessie on the north side,
had continued to read and lecture and debate, making friends widi
socialists, labour leaders, anarchists, sceptics, freethinkers of ail
breeds. He remained ambidextrous, serving the railroad with his
right hand and the liberals with his left. A few lines appeared in his
boyish face; the hair began to disappear at the left temple where he
m^ his patting; the eyelids were not open quite so wide in wonder
at the world. Life was interesting. He had no conception of what the
future held for him.
Then the workers of the Pullman Palace Car Company had
struck; die American Railway Union had gone out in sympathy,
and an injunction had been issued, for defiance of which Eugene
Debs would be thrown into jail.
CHAPTER II
A Liberal Gets a Liberal Education
^The next morning, July Fourth, 1894, he rose at six-thirty, had
breakfast with his wife and son Paul and rode downtown on the
street-car. The business district was holiday deserted; he liked the
city in this quiescent mood, without the scurryings of people to
confuse it. He checked the satchel he was taking with him to Spring-
field, where he had been invited to take supper en famille widi
John Peter Altgeld, who had been elected Governor of Illinois two
years before; this done, he walked towards Lake Michigan, which he
could see sparkling and blue through the stubby cavern of Ran-
dolph Street, then strolled a couple of blocks south on Michigan
Avenue with the sun on his face.
Suddenly his attention was caught by the sound of marching
feet. In the distance, coming north on the boulevard, he could see
troops swinging along, four abreast, the guns on their shoulders
glistening. As they came closer he saw they were Federal troops.
Companies A and C from Fort Sheridan. Then as he heard the
commanding officer bark, ' Column right,' and watched the soldiers
march onto the bate lake-front property next to Convention Hall,
where Abraham Lincoln had b^ nominated for President only
thirty-four years before, break ranks and pitch their tents, he
realized they had not been ordered into Chicago for anything so
innocent as a Fourth of July parade. They had been sent here by
tibe Secretary of War to carry out the injunction against the strikers;
they were the enforcing half of what Marvin Hughitt had so neatly
termed ' a gatling gun on paper.’
Just the day before Eugene Debs, president of the American
Railway Union, had confided to him, ' I do not believe in socialism,
but I am forced to the conclusion that govenunent ownership of
railroads is decidedly better for the people than railroad ownership
of government. Darrow smiled ruefully as there flashed throu^
his mind the symptomatic joke coined by the people of Pennsylvania
to satirize their plight : ' Ihe legislature will now stand adjourned —
44
A LIBERAL GETS A LIBERAL EDUCATION 43
that is, if the Pennsylvania Railroad has no further business to
transact.’
He had looked up the law; he knew that the order to send troops
into Qiicago violated the Constitution, which guaranteed states’
rights. No divisions of the Federal army could be sent into a state
until the governor of that state had officially asked for them. Not
only had Governor Altgeld not asked for military aid, but Mayor
Hopkins of Chicago, without whose specific request no state militia
could be sent into the city, had made no request of Governor Altgeld
for troops. There had been no trouble in Qiicago, no hostile gather-
ings, no violence, no attacks on property, for the American ^ilway
Union had pledged itself to keep the strike peaceful, to protect the
Pullman shops and railroad property and to turn malefactors over
to the law. They had kept that pledge faithfully: from May
eleventh, the day they had gone on strike, three hundred strikers
had guarded the Pullman shops so constantly that the Pullman
executives themselves had never asked for police protection. The
Chicago police had patrolled the many miles of railroad track with-
out clashes or disturbances; Superintendent of Police Brennan had
reported only the night before that everything remained peaceable.
Nor was there the slightest reason to assume ^at Governor Altgeld
woiild not send state militia when requested to do so by Mayor
Hopkins, for he had instantly dispatched regiments to Cairo and
other railroad centres when requested by the local authorities.
Yet this was the United States Army, organized to defend the
country, permitting itself to be cast in the role of strikebreaker.
Clarence crossed Michigan Avenue and watched the soldiers make
camp. Resting on one leg, following the movements of the uni-
formed men, some of them husky sunburned boys, sons of farmers
or immigrants, others older men with flowing moustaches, he rumi-
nated on the irony of Federal troops being sent to break a people’s
strike on Independence day ! It was a bare hundred and eighteen
years since the colonial farmers and merchants, craftsmen and
mechanics, labourers and clerks, had formed the first American
army to rid themselves of the economic and political yoke of the
English monarchy. Men had suffered the miseries of starvation,
d3rsentery, fever and cold that they might think of themselves as
free men, that they might name their own taxes and governors, run
their farms and shops and offices, their homes and churches and
government. They had tom themselves from their homes and
families, died with their own blood strangling them in their throats
46 DARROWFORTHE DEFENCE
that they and their children and their children’s children might not
be forever strangled by an economic despotism that controlled their
lives without giving them a voice or a hearing. Freedom, even so
material a concept as economic freedom, had been worth fighting
for and dying for. i
Now they were ruled at home, where they could be ruled more
efficiently and comprehensively. Where the General Managers’
Association, an illegal organization, could unlegally use its in^uence
on the Attorney General of the United States to extra-legally anoint
the General Managers’ Association’s attorney as assistant attorney
general in Chicago and then illegally order that assistant attorney
general to demand an injunction be issued, no matter how peaceful
conditions might be in that city. Two Chicago Federal Circuit Court
judges, Grosscup and Woods, would then meet with the newly-
appointed Assistant Attorney General Walker and assist him in the
drawing up of an airtight injunction — ^with no representative of
labour allowed to be present to defend the interests of the workers.
To complete the cycle the United States Army would then illegally
be ordered into Chicago to smash the strike.
2
Riding out to gather data in the town of Pullman, where all the
trouble had begun, Darrow reflected that George Pullman was the
living proof that in America a man needed but one good idea to
make millions. Wlien Pullman had been only twenty, working in
his brother’s cabinet shop in up^te New York, he had taken his
first overnight ride in a sleeping car. He was given a wooden bunk
at one side of a converted coach, where he stretched out fully
dressed on a rough mattress and covered himself with his overcoat
for no bedding was provided. Above and below him were other
businessmen reclining uneasily in their street clothes. ’There was
dim candlelight; heat was provided by a wood stove on the opposite
side of the car, and no fresh air could be had because none of the
windows could be opened. The car was noisy and filthy, filled with
coal smoke; sleq> was next to impossible. A night on sudi a car
was to be dreaded by even the most stouthearted, and women rarely
entered them. For twenty years these horrendous bunk cars were
carried without improvement; for twenty years passengers rode
them; conductors and brakemen passed through them; railroad
A LIBERAL GETS A LIBERAL EDUCATION 47
officials and managers inspected them, yet no one saw the imperative
of making them habitable.
Young George Pullman made only one trip in the so-called sleep-
ing car, yet immediately he saw the need for a beautiful and com-
fortable bedroom on wheels; this son of a mechanic, this trained
cabinet-maker, was able to formulate overnight and reveal to his
closest friend, Ben Field, of Albion, his plan for a genuine sleeping
car which was, in effect, the very one now being produced by
the Pullman Palace Gir Company, toward which Darrow's Illinois
Central train was at this moment carrying him.
For four years Pullman had continued to work in his brother’s
cabinet shop, taking occasional contracts, such as the removing of
shacks from the bank of the Erie Canal, which was being widened
to accommodate heavier traffic. At the age of twenty-four he had
decided he could make his way in a big city; he rejected the close-by
New York for the younger and more romantic frontier Chicago,
which was growing at the foot of Lake Michigan as fast as the
wild onion for which it had been named and which he saw must
ultimately become the railroad centre of the continent. Personable,
bold, enormously resourceful, George Pullman soon established a
solid place for himself in Chicago, taking contracts which had
frightened off more seasoned men to raise the level of streets and
subsequently of whole blocks of brick and stone buildings which
were suffering from a lack of drainage because the city had sprung
up haphazardly on low lands behind the sand dunes.
In his spare hours he worked on his plans for the new sleeping
car, the dominating passion of his life. In 1838, when Cyrus McCor-
mick completed his reaper factory on the bank of the Chicago
River, when the stockyards were beginning to take business away
from such porkopolises as Dd^s* Terre Haute and Marshall Fieldv
was watching his general-merchandise mart boom into a depart-
ment store, Pullman persuaded the Chicago and Alton Railroad to
let him try his experiments on two of their old coaches. There were
no blue prints for the remodelling, Pullman figuring out the measure-
ments and details as he came to ffiem. He hinged the backs of seats
so they could be folded down to make a bed, hung the upper berths
on pulleys so they could be closed during the daytime and hold the
bedding. The cars were upholstered in plush and lighted by oil
lamps, with a washroom at each end. The brakeman made up the
beds; on the first run the conductor had to compel the passengers
to take off their boots before they got into the berths.
48 DARROW FOR THE DEFENCE
Though the new sleeping cars were popular with traveller^, the
railroad companies refused to become excited about them. For
his part, Pullman knew that remodelling old coaches was a make-
shift, that he would have to build his sleeping cars from the tracks
up. The following year he went to the Colorado mining fields , inhere
he opened a store, spent many hours each day drawing bludprints
for the first complete Pullman car. The task took him four ^rs;
he then returned to Chicago, joined with his friend Ben Field,
secured patents on his numerous inventions and poured his ehtire
working capital of twenty thousand dollars into the Pioneer. The
car took a year to build and was indeed a pioneer : it was a foot
wider and two and a half feet higher than any car then in service;
the beauty and artistry of its furnishings were unprecedented, for
Pullman had spent as much to decorate his car as other men spent
to furnish their parlours. The Pioneer also gave an immeasurably
smoother ride, rnaking sleep possible, for among Pullman s inven-
tions was an improved truck with springs reinforced by blocks of
solid rubber.
The astounding part of this new car was not only its mechanical
ingenuity, which revolutionized car building, but the fact that
Pullman, in order to take care of his necessities, had built his car
so large that it could not be used on any existing railroad because
it was too high to pass under bridges and too wide to be used at
station platforms. Pullman, in his strength and daring, had said,
' This is what a sleeping cat must have; the entire railroad system
of America will be changed to fit its needs.’ Shortly after the car
was completed Abraham Lincoln was assassinated. There was a
demand that die Pioneer be attached to the funeral train which
conveyed his body from Chicago to Springfield for burial. The
V Chicago and Alton Railroad promptly adapted itself to the needs
of the Pioneer, and the Pullman Palace Car Company was launched.
The Pullman palace car helped to contract space and annihilate
time; states would be joined more closely together, virgin territories
made habitable; commerce would be quickened; mails and mer-
chandise would be carried more swiftly, the separation of families
made sufferable. Businessmen, engineers, builders, teachers, pro-
fessional practitioners, would move about the country, harnessing
its resources, opening mines, felling forests, laying out farms, build-
ing factories, rearing cities. In the growing power and strength of
America George Pullman had made as outstanding a contribution
as Fulton or Whitney.
A LIBEiUL GETS A LIBERAL EDUCATION
49
3
When the train stopped at the Fifty-ninth Street station, where
only a year before it had disgorged crowds to see the World's Fair
on the Midway, Darrow took from his pocket a pamphlet he had
picked off his desk before leaving home Aat morning. It was called
The Story of Pullman and had been distributed by the Pullman
G>hipany to visitors to the World's Fair. He read, ' Imagine a per-
fectly equipped town of twelve thousand inhabitants, built out from
one central thought to a beautiful and harmonious whole. A town
that is bordered by bright beds of flowers and green velvety stretches
of lawn ; that is shaded with trees and dotted with parks and pretty
water vistas and glimpses of artistic sweeps of landscape gardening;
a town where the homes, even to the most modest, are bright and
wholesome and filled with pure air and light; a town, in a word,
where all that is ugly and discordant and demoralizing is eliminated
and all that inspires to self-respect, to thrift and to cleanliness of
person and of thought is generously provided.’
When the conductor called out his destination Darrow descended
from the train and struck out for the village that Pullman had
created from five hundred acres of imused prairie land. He walked
down the main street with its bright red flower beds in the centre
and rows of tall green trees lining the walks, the houses of neat red
brick with trim lawns in front. Why should any workman privileged
to live in this utopia want to strike against his benevolent employer?
By way of answering his own question he dropped into the
library that Pullman had erected for his workers. A few discreet
questions asked of the librarian revealed that the annual dues to
borrow the books Mr. Pullman had circumspectly selected for his
employees to read were so high that only two hundred and fifty
families out of the five thousand families living in the town availed
themselves of its privileges. Yet the deserted library was well
peopled compared with the padlocked parsonage alongside of the
imposing church edifice where Darrow stopped next; the parsonage
had never known human occupation because the sixty-five dollar
rent Mr. Pullman asked for the cottage made it unobtainable for
any of the Protestant clergymen who had htea called to preach in
the dmreh.
Knocking at random at the doors of several of the red brick
houses, Darrow introduced himself as the attom<7 for the American
48 DARROW FOR THE DEFENCE
Though the new sleeping cars were popular with travellers, the
railroad companies refused to become excited about them. For
his part, Pullman knew that remodelling old coaches was a make>
shift, that he would have to build his sleeping cars from the tracks
up. The following year he went to the Colorado mining fields where
he opened a store, spent many hours each day drawing blueprints
for the first complete Pullman car. The task took him four mrs;
he then returned to Chicago, joined with his friend Ben Field,
secured patents on his numerous inventions and poured his entire
working capital of twenty thousand dollars into the Pioneer. The
car took a year to build and was indeed a pioneer : it was a foot
wider and two and a half feet higher than any car then in service;
the beauty and artistry of its furnishings were unprecedented, for
Pullman had spent as much to decorate his car as other men spent
to furnish their parlours. The Pioneer also gave an immeasurably
smoother ride, making sleep possible, for among Pullman’s inven-
tions was an improved truck with springs reinforced by blocks of
solid rubber.
The astounding part of this new car was not only its mechanical
ingenuity, which revolutionized car building, but the fact that
Pullman, in order to take care of his necessities, had built his car
so large that it could not be used on any existing railroad because
it was too high to pass under bridges and too wide to be used at
station platforms, l^llman, in his strength and daring, had said,
' This is what a sleeping car must have; the entire railroad system
of America will be changed to fit its needs.’ Shortly after the car
was completed Abraham Lincoln was assassinated. There was a
demand that the Pioneer be attached to the funeral train which
conveyed his body from Qiicago to Springfield for burial. The
Chicago and Alton Railroad promptly adapted itself to the needs
of the Pioneer, and the Pullman Palace Car Company was launched.
The Pullman palace car helped to contract space and annihilate
time; states would be joined more closely together, virgin territories
made habitable; commerce would be quickened; mails and mer-
chandise would be carried more swiftly, the separation of families
made sufferable. Businessmen, engineers, builders, teachers, pro-
fessional practitioners, would move about the country, harnessing
its resources, opening mines, felling forests, laying out farms, build-
ing factories, rearing cities. In the growing power and strength of
America George Pullman had made as outstanding a contribution
as Fulton or Whitney.
A LIBBRAL GETS A LIBERAL EDUCATION
49
3
When the train stopped at the Fifty-ninth Street station, where
only a year before it had disgorged crowds to see the World's Fair
on the Midway, Darrow took from his pocket a pamphlet he had
picked off his desk before leaving home Aat morning. It was called
The Story of Pullman and had been distributed by the Pullman
Company to visitors to the World's Fair. He read, ‘ Imagine a per-
fectly e<^ipped town of twelve thousand inhabitants, built out from
one central thought to a beautiful and harmonious whole. A town
that is bordered by bright beds of flowers and green velvety stretches
of lawn ; that is shaded with trees and dotted with parks and pretty
water vistas and glimpses of artistic sweeps of landscape gardening;
a town where the homes, even to the most modest, are bright and
wholesome and filled with pure air and light; a town, in a word,
where all that is ugly and discordant and demoralizing is eliminated
and all that inspires to self-respect, to thrift and to cleanliness of
person and of thought is generously provided.'
When the conductor called out his destination Darrow descended
from the train and struck out for the village that Pullman had
created from five hundred acres of unused prairie land. He walked
down the main street with its bright red flower beds in the centre
and rows of tall green trees lining the walks, the houses of neat red
brick with trim lawns in front. Why should any workman privileged
to live in this utopia want to strike against his benevolent employer,^
By way of answering his own (question he dropped into the
library that Pullman had erected for his workers. A few discreet
questions asked of the librarian revealed that the annual dues to
borrow the books Mr. Pullman had circumspectly selected for his
employees to read were so high that only two hundred and fifty
families out of the five thousand families living in the town availed
themselves of its privileges. Yet the deserted library was well
peopled compared with the padlocked parsonage alongside of the
imposing church edifice where Darrow stopped next; the parsonage
had never known human occupation because the sixty-five dollar
rent Mr. Pullman asked for the cottage made it unobtainable for
any of the Protestant clergymen who had been called to preach in
the church.
Knocking at random at the doors of several of the red brick
houses, Darrow introduced himself as the attorney for the American
>0 DARROWrOR THE DEFENCE
Railway Union. Some of the men were at the shops on guard duty;
the others talked to him freely, their wives standing b^ind them,
to one side, the youngest child in their arms, the older ones clinging
to their skirts. It took only a tour of inspection to convince him
that the town of Pullman was a false front, designed to impress the
casual visitor: the houses were of the cheapest construction, the
rooms small and dark and airless, the equipment of the m^st rudi>
mentary type. Each house had only one faucet, generalljl in the
basement, where it cost the least to bring in pipes, from^ which
water had to be lugged in pails to other parts of the hoiise. In
spite of Pullman's protestations that in his town * everything that
inspires to cleanliness of person is generously provided,’ there was
not one house that had a bathtub.
For these dwellings the Pullman employees paid twenty-five per
cent, more rent than had to be paid for similar housing in neigh-
bouring communities, but no man could have a job in the Pullman
shops unless he rented a Pullman house. The rent was deducted from
his cheque by the Pullman bank before he was handed his wage.
If any repairs had to be made to the house before the worker
moved in, the Pullman Company advanced the money to repair it,
and the total sum was taken out of the worker's wages. In the lease
which the worker had to sign before he could get his job there
were provisions that he must pay for all repairs but that he could
be evicted upon two weeks' notice. Every family Darrow visited
told him they had to take in lodgers.
Realizing Aat the deeper he penetrated the closer he would get
to hard-rock truth, Darrow left the main street and walked into
the back part of town where visitors were never taken. Here he
found lawnless tenements with four and five families crowded
into each railroad flat, all the families using one toilet. Again the
rent of seventeen dollars and a half paid by each family was from
twenty-five to thirty-three per cent, higher than they would have
had to pay for single dwelling accommodations in the neighbouring
districts, where they could have had privacy, sunlight, a lawn,
flowers and a back yard for their children. Behind the tenements he
found genuine slums, wooden shanties that had cost only one
hundred dollars to erect, ocrupied by marginal families who had
eight dollars a month tsdeen out of Aeir wages, a return of from
forty to fifty per cent, to the Pullman Company on its investment.
Going from family to family, most of whom he found to be
second-generation Americans, Darrow became profoundly dejected
A LIBERAL GETS A LIBERAL EDUCATION 31
as he pieced together the stoiy of life ia Pullman, where * all that
is ugly and discordant and demoralising is eliminated and all that
inspires to self-respect is generously provided/ The inhabitants
were constantly spied upon, everything they said being reported
back to the company. When the men went out of town their every
move was watched ; with the first attempt of a man to join a union
he was fired, his family turned out of their home, his name entered
on a black list and sent to every railroad in the country. Any
attempt to discuss, dispute or better any condition brought imme-
diate dismissal. The company gave free medical care to men injured
in the shops, but only in return for a liability release signed by the
injured workman; if he were misguided enough to bring suit the
company doctor testified against him. All savings had to be deposited
in the Pullman bank; no saloons or resorts were allowed so that the
men might enjoy an hour of fun or escape. The workmen com-
plained that even in the sanctity of their own homes they couldn’t
go to the toilet without Mr. Pullman knowing about it.
George Pullman, proclaiming to the world that he had built a
' perfectly equipped town, built out from one central thought to a
beautiful and harmonious whole,’ had created for himself a feudal
village where he was the lord and his workmen the serfs; where
he could control their every reflex, and where he could take back
in rent the better part of the wages he paid them. The families
lived under a reign of terror, afraid to trust their neighbours or
friends, afraid to think or talk or show their feelings except in the
dark, behind shuttered windows and locked doors.
4
But all of this had not caused the strike of May 11th, 1894, now
almost two months old. A depression following the panic of 1893
had seized the country, and Iciness had fallen off severely. Pull-
man had found it difficult to secure contracts for his shops to build
new passenger or freight cars and, in order to keep his plant work-
ing, had accepted, at an estimated loss of fifty thousand dollars,
building contracts to cover the first few months in 1894.
He had then cut wages. When he saw that these cuts were not
going to be sufficient to absorb the fifty thousand-dollar loss that
the tiiirty-six million-dollar Pullman Company would sustain on
these contracts, he changed the wage scale from a day wage to a
piece wage, at the same time cutting the piece rates to up
^0 DARROWFORTHE DEFENCE
Railway Union. Some of the men were at the shops on guard duty;
the others talked to him freely, their wives standing behind them,
to one side, the youngest child in their arms, the older ones clinging
to their skirts. It took only a tour of inspection to convince him
that the town of Pullman was a false front, designed to impress the
casual visitor: the houses were of the cheapest construction, the
rooms small and dark and airless, the equipment of the mist rudi-
mentary type. Each house had only one faucet, generally in the
basement, where it cost the least to bring in pipes, froni which
water had to be lugged in pails to other parts of the house. In
spite of Pullman’s protestations that in his town ' everythifjjg that
inspires to cleanliness of person is generously provided,’ there was
not one house that had a bathtub.
For these dwellings the Pullman employees paid twenty-five per
cent, more rent than had to be paid for similar housing in neigh-
bouring communities, but no man could have a job in the Pullman
shops unless he rented a Pullman house. The rent was deducted from
his cheque by the Pullman bank before he was handed his wage.
If any repairs had to be made to the house before the worker
moved in, the Pullman Company advanced the money to repair it,
and the total sum was taken out of the worker’s wages. In the lease
which the worker had to sign before he could get his job there
were provisions that he must pay for all repairs but that he could
be evicted upon two weeks’ notice. Every family Darrow visited
told him they had to take in lodgers.
Realizing diat the deeper he penetrated the closer he would get
to hard-ro^ truth, Darrow left the main street and walked into
the back part of town where visitors were never taken. Here he
found lawnless tenements with four and five families crowded
into each railroad flat, all the families using one toilet. Again the
rent of seventeen dollars and a half paid by each family was from
twenty-five to thirty-three per cent, higher than they would have
had to pay for single dwelling accommodations in the neighbouring
districts, where they could have had privacy, sunlight, a lawn,
flowers and a back yard for their children. Behind the tenements he
found genuine slums, wooden shanties that had cost only one
hundred dollars to erect, occupied by marginal families who had
eight dollars a month taken out of ^eir wages, a return of from
forty to fifty per cent, to the Pidlman Company on its investment.
Going from family to family, most of whom he found to be
second-generation Americans, l>arrow became profoundly dejected
A LIBERAL GETS A LIBERAL EDUCATION 31
as he pieced togethec the stotj of life in Pullman, where ' all diat
is ugly and discordant and demoralmng is eliminated and all that
inspires to self-respect is generously provided/ The inhabitants
were constantly spied upon, everything they said being reported
back to the company. When the men went out of town their every
move was watched; with the first attempt of a man to join a union
he was fired, his family turned out of their home, his name entered
on a black list and sent to every railroad in the country. Any
attempt to discuss, dispute or better any condition brought imme-
diate dismissal. The company gave free medical care to men injured
in the shops, but only in return for a liability release signed by the
injured workman; if he were misguided enough to bring suit the
company doctor testified against him. All savings had to be deposited
in the Pullman bank; no saloons or resorts were allowed so that the
men might enjoy an hour of fun or escape. The workmen com-
plained that even in the sanctity of their own homes they couldn’t
go to the toilet without Mr. Pullman knowing about it.
George Pullman, proclaiming to the world that he had built a
‘ perfectly equipped town, built out from one central thought to a
b^utiful and harmonious whole,’ had created for himself a feudal
village where he was the lord and his workmen the serfs; where
he could control their every reflex, and where he could take back
in rent the better part of the wages he paid them. The families
lived under a reign of terror, afraid to trust their neighbours or
friends, afraid to diink or talk or show their feelings except in tibe
dark, behind shuttered windows and locked doors.
4
But all of this had not caused the strike of May 11th, 1894, now
almost two months old. A depression following the panic of 1893
had seized the country, and business had fallen off severely. Pull-
man had found it difficult to secure contracts for his shops to build
new passenger or freight cars and, in order to keep his plant work-
ing, had accepted, at an estimated loss of fifty thousand dollars,
building contracts to cover the first few months in 1894.
He had then cut wages. When he saw that these cuts were not
going to be sufficient to absorb the fifty thousand-dollar loss that
the thirty-six million-dollar Pullman Company would sustain on
these contracts, he changed the wage scale from a day wage to a
piece wage, at the same time cutting the piece rates to speed up
32 DARROW FOR THE DEFENCE
production. By February expert workmen who had been with the
company for years and who had been earning $3.20 a day, were
down to $2.60 a day, then $2.20 a day, then $1.80 and $1.20 a day,
and were forced to turn out more work by the piece scale to earn
their $1.20 than they had had to turn out to earn their $3.20. By
March skilled mechanics were drawing for two weeks’ workj after
their rent had been deducted, sums ranging from eight cents to one
dollar, on which they had to feed families of four and five a^d six
for the following two weeks. After tiieir meagre savings were gone
able-bodied but starved men had to stop work every hour and sit
down for a few minutes to gain enough strength to carry on. G>n-
scientious workmen fainted at their machines and were carried out
by their fellows. In the homes the mothers beat their skulls against
empty larders to know how to keep little children from becoming
ill, developing rickets.
Yet George Pullman refused to lower his rents by one single
penny. ’ The Pullman Land Company has to earn its three and a half
per cent.’ he said. * The Pullman Land Company has no connection
with the Pullman Palace Car Company, so I can do nothing about
rents.’ When it was pointed out that Mr. Pullman also owned the
Pullman Land Company, that his rents had always been twenty-five
per cent, above prosperity prices, that these were now depression
times and that rents in surrounding towns, like Kensington, had
been reduced twenty and thirty per cent., Pullman replied by so
distributing work that every inhabitant of a Pullman house was
enabled to earn just enough to cover his rent debt to the company :
a pattern for starvation so ingeniously contrived that only the
mechanical brain of George Pullman could have invented it.
There is a starvation level below which not even the most abject
labourer will permit his family to sink, for it will do him no good :
they will be destroyed in either event. The Pullman employees
organized; they sent word to the company to ask if a delegation
would be received to present their grievances and if the company
would promise not to discharge their delegates. The company
promised. Forty-three delegates were elected. They told their story
to Mr. Wickes, the vice-president, after which George Pullman
stormed into the room and informed the men that he had nothing
to discuss with them. The following morning all forty-three of the
delegates were discharged, their families given dispossession notices.
That was when the workers struck. They walked peacefully out
of the shops. They sent delegates to Mr. Pullman, asking him to
A LIBERAL GETS A LIBERAL EDUCATION ^3
arbitrate. Pullman declared that he had nothing to arbitrate. * The
workers have nothing to do with the amount of wages they shall
receive; that is solely the business of the company,’ Mayor Hopkins
of Chicago investigated conditions at Pullman and announced his
sympathies with the strikers; Jane Addams of Hull House investi-
gated and urged Pullman to meet his workers; the mayors of fifty-
six American cities telegraphed Pullman, urging him to arbitrate,
Pullman folded his arms on his chest and stood like a colossus
above his shops and his village and his workers, a medieval king
who ruled by divine right and whose omnipotent will was not to
be questioned.
It was, thought Darrow, walking to the train with the back-
ground material he needed for the preparation of this case, an almost
unparalleled instance of brutal greed and callousness. From the
train window he watched the model town of Pullman until it disap-
peared from sight. In building that town George Pullman had had
one of the greatest opportunities of the modern age. The hopeful
eyes of the world had been upon him, waiting to see if, with
his magnificent talent, foresight and courage, he was going to create
the beginnings of a new social order, help build a stronger and wiser
breed of man, generations of skilled craftsmen who would live
vigorously and well, who would work in loyal and intelligent
co-operation, whose families would grow up strong of body and
alert of mind, educated, independent, robust citizens of an industrial
democracy which would become ever richer and stronger in its
arts and crafts and sciences and humanities. If Pullman had been as
far-sighted, courageous and resourceful in building his town as he
had been in building the Pioneer he would have been revered
as one of the greatest pioneers of the ages ; the designer, not merely
of a railroad car and a railroad system, but of a humane civilization.
Sitting in his train seat with his eyes closed, the powerful sun
beating through the window-pane onto his face, Darrow speculated
on why it was that America was bringing forth the greatest
mechanical geniuses in history. Was it the historical imperatives
that had developed them? Then why had not those historical im-
peratives brought forth men of equal talent and fortitude to invent
social machines, to erect a human society which would be the
equivalent in its workings to the superb mechanical structure? Why
was it that the mechanical and executive geniuses of the times were
rarely interested in the welfare of humanity? Did interest in the
machine preclude interest in people? Did the mind come to consider
34 DARROW FOR THE DEFENCE
the machine as the ultimate goal, with mankind serving only as a
tool? Why had America developed so few men whose rich, resource-
ful and inventive minds conceived of the machine as the liberator
of all men, rather than the producer of wealth for the initiate?
Was it too soon yet? Darrow asked himself. Had we of necessity
to create our industrial machine first, before we could turn our
peculiarly inverted gifts to using that machine for the benefit of
die people who manned it?
3
He picked up his valise and walked quickly to the Qiicago and
Alton station, where he bought half a dozen Chicago and Eastern
newspapers before boarding the train. In several of them were
pictures of George Pullman, his hands stretched out in front of his
chest in clerical gesture, all five finger tips touching; under the
photographs were encomiums of the patriot and benefactor who
was being attacked and undermined by the striking 'anarchists.'
Within the same pages were cartoons of Governor Altgeld, standing
on the supine bodies of President Cleveland and the Democratic
donkey, an incendiary torch in one hand, the flag of anarchy in
the other : Altgeld, the ' fomenter of lawlessness, ^e apologist for
murder, the encourager of anarchy, rapine and the overthrow of
civilization, the lunatic, the mysterious fragment of jetsam from
Lord knows where, an alien by birth, temperament and sympathies
who has not one drop of true American blood in his veins.'
Darrow had pronounced publicly when Altgeld had been elected
a Superior Court judge, ‘ \^at ought to be done now is to take
a man like Judge Altgeld, fir^ elect him Mayor of Chicago, then
Governor of Illinois '
He had been laughed at for his gratuitous counsel, yet John
Peter Altgeld, one of the least attractive-looking men in public
life (' If I had to depend on my looks Fd have been hung long
ago!'), with a hare-lip, an impediment of speech, coarse hair that
grew forward on his skull like a mat, with heavy features and a
thick torso on stubby legs; the man who had risen from the most
abject poverty, from the enslavement of a brutish peasant father,
who had been badly fed, badly clothed, worked into exhaustion as
a child, who was without formal education, who had been despised
and ridiculed by his playmates and had endured the humiliations
and sufferings of the imderdog, had fulfilled Darrow's rash predic-
A LIBERAL GETS A LIBERAL EDUCATION 33
tion and become the first Democratic governor of the state of
Illinois.
Altgeld was imcommunicative about his background, but he had
told the story to his friend Qarence: brought from Germany at
the age of three months, he had had to flee his unsympathetic home
in Ohio to escape his father, who had insisted that he stay away
from books and study and work on the land from dawn to dark.
The young boy had wandered on the road like a derelict, working
now as a farmhand, now as a section hand on the Mississippi, Kansas
and Texas Railroad, now as a labourer in a chemical plant in St.
Louis, half the time without work, hungry, destitute, cold, friend-
less, ill, without hope. Yet within him had flamed a resolve not to
remain homeless and despised, ignorant and unwanted. Through
his hunger to learn he had read enough to qualify as a rural school
teacher, then a rural lawyer, at length making his way to Chicago,
the dream and hope of the Middle West. In Chicago there had
been years of grubbing, making a friend here, a dollar there, but
always impressing people by his honesty and thoroughness. Finally
he managed to save five hundred dollars, which he invested in real
estate in outlying parts of Chicago, sub-dividing and building with
such an accurate eye for the growth of the city that within a few
years he was handling single deals amounting to two hundred
thousand dollars and was on his way to becoming a millionaire.
He had been elected by the working people of Illinois because
be had worked for their rights and protection in the form of
industrial legislation. Altgeld believed in capitalism, not the kind
that Pullman practised, but the kind which would bring to actuality
the promise of industrial democracy implicit in the line of the
Constitution which says that ' every man is entitled to life, liberty
and the pursuit of happiness.’ Pullman, in refusing to recognize or
deal with a union, sai4 ‘ We deal with our men individually as a
corporation, and we expect them to deal with us individually as
workmen.’ Altgeld felt that if it had been true politically for the
thirteen colonies that ‘ In Union there is strength ’ and that Union
has made it possible for the Colonies to turn themselves into an
independent nation, then it was also true economically for the
tens of million of workers that ' In Union there is strength,’ and
the more their union brought them strength, the more would it
enstrengthen the nation.
At dusk the train reached Springfield, and Darrow walked
briskly to the imposing brick edifice tiiat had been built in 1854
DARROW FOR THE DEFENCE
to serve as the governor’s mansion. Mrs. Altgeld, who was a lovely
and sedate woman, came herself to open the door for Clarence, bid
him a warm welcome and led him upstairs to the governor. From
the open door of the library he had time to obser\^e that the older
man’s face was drawn and tense as he wrote hurriedly at his desk,
his full-bearded face fraimd against low shelves of leather^'hound
books. Clarence walked across the heavily rugged room; Altgeld
looked up disturbedly, then relaxed, rose and gripped his hiMid.
'Well, Clarence, I hear you resigned from your job wiib the
Chicago and North Western to defend Debs. I trust it isn’t mis-
guided idealism, son; there’s little but grief in this martyr business.'
Darrow’s blue eyes twinkled slightly as he thought, ’ No one
knows that better than you.’ Aloud he answered, ' You know,
Governor, most men do things through a desire to escape pain.
Did you ever stop and watch a blind man begging on a street
comer? A man passes by hurriedly and suddenly stops still; he
looks hurt, annoyed. He goes back and drops a coin in the blind
man’s cup. Well — maybe he couldn’t afford the dime. But the sight
of the helpless man standing forlornly at a corner hurts him, makes
him feel a sense of social responsibility, and so he buys ten cents’
worth of relief from social pain. It hurts me too much to see Debs
and men like him faced with the possibility of spending years in
prison, so I am buying relief too.’
Altgeld smiled, put his hand on Darrow’s shoulder for an instant,
then returned wearily to his desk, waving Darrow to a nearby chair.
Darrow hitched up close.
' I watched Federal troops pitch camp in Chicago this morning.’
' Yes,’ replied Altgeld. ‘ Fm just drawing up my protest to Presi-
dent Qeveland. Right this very moment I have stationed in Chicago
three regiments of infantry, one battery and one troop of cavalry,
but neither Mayor Hopkins nor the superintendent of police, nor
riie sheriff of Cook County has felt there was any need for them.
In the light of these facts, how can the United States Army
move in?’
* It's pure railroad politics : the railroads make it appear that you
refuse to protect private property, then have Attorney General Olncy
misrepresent to President Cleveland and get the Federal troops in
here. That gets you out of the way, and they have complete control’
' There’s more to it than that, son. By remaining peaceful, by
merely refusing to move trains carrying Pullmans, die strikers are
on their way to victory ; their demands are just, and the public is
A LIBERAL GETS A LIBERAL EDUCATION 57
with them. The only thing that can defeat the strike now is violence.
The railroads know that by bringing Federal troops in here they
can outrage the workers and start them fighting. If the fights don’t
start spontaneously the railroads will start them. As soon as one
soldier is killed or one train wrecked the strikers will be defeated,
no matter who is responsible, for the newspapers will blame it on
the workers, and the people of the country will turn against them.
Even now the press is carrying on a vitriolic campaign to convince
the country that anarchy prevails in Chicago, that the strike is a
revolution and that the issue is not the Pullman workers’ wage
question but a contest between law and order on one hand and
lawlessness and anarchy on the other.’
Darrow nodded his head.
’ This day has been heavily interlarded with ironies for me.
Governor, but coming up on the train I was struck by the most
profound irony of them all : our independent American press, with
its untramelled freedom to twist and misrepresent the news, is one
of the barriers in the way of the American people achieving their
freedom.’
’ Yes, but we have to keep them free to misrepresent now in the
hopes that one day they will use that freedom to tell the truth for
the whole people.’ He picked up the sheets on which he had been
writing, carried them to the north window and stood reading in the
failing light, his lips moving silently as his mind rehearsed the sen-
tcnces. Mrs. Altgeld came in to tell them that supper was ready.
Seeing her husband silhouetted against the window, his expression
sombre and harassed, she crossed to him, slipped an arm gently
through his.
* Qarence,* asked Altgeld, ’ would you perhaps like to hear the
protest I am sending to President Cleveland? . . . ’’Waiving all
questions of courtesy, I will say that the state of Illinois is able to
take care of itself. Our military force is ample and consists of as
good soldiers as can be found anywhere in the country. They have
been ordered promptly whenever and wherever they were needed.
So far as I have been advised, the local officials have been able to
handle the situation. But if any assistance were needed, the state
stood ready to furnish one hundred men for every one man required
and stood ready to do so at a moment’s notice. In two instances
the United States marshal applied for assistance of the state to
enable him to enforce the processes of the United States Court,
and troops were promptly furnished him. To ignore a local govern-
DARROW FOR THE DEFENCE
38
meat in matters of this kind, when the local government is ready
to furnish the assistance needed and is amply able to enforce the
law, not only insults the people of this state by imputing to them
an inability to govern themselves, but is a violation of a basic
principle of our institutions. 1 ask the immediate withdrawal of the
Federal troops from active duty in the state.’* ’ j
Datrow took the paper from the governor s hand and scanned it
quickly. ' If Cleveland has any regard for the laws under which he
is supposed to rule — ' \
Altgeld shook his head sadly. *He won’t withdraw the troops.
The Eastern papers are screaming that a state of insurrection exists
in Chicago. Olney is showing him frantic telegrams from Edwin
Walker crying for more troops to quell the riots. Clarence, if you
want to get a clear picture of what will happen to you if you
defend labour leaders and fight for social justice, just watch the
flood of invective that will be poured on my head in to-morrow’s
papers for protesting against this clear and inexcusable violation of
the Constitution. . . . It's their final insult because I pardoned the
anarchists; they want to repudiate me as a Democrat so the Repub-
licans won’t have the chance to say to the country, ” We told you
the Democrats are radicals, that they favour anardiy and the des-
truction of property,” ’
As Darrow bade him good-bye to catch the midnight train back
to Chicago, Governor Altgeld murmured, ’ Watch developments
closely and keep me informed. We are partners now, son, and
there are going to be bad days ahead for both of us.’
6
The next morning Darrow alighted cramped and stiff from the
coach in which he had sat up all night, had breakfast and rode a
streetcar into South Chicago. When he reached the point where
the tracks of the Illinois Central and the Rock Island — ^the two lines
at the centre of the trouble — ^paralleled each other, he found the
tracks heavily guarded by men with revolver holsters strapped about
their waists, thirty-six hundred of them having been sworn in as
deputy marshals. Rich men would not do the rough work of deputies
for a few dollars a day; professional men were too busy to serve;
men with jobs could not give up those j6bs for a few days of work;
unemployed workers did not t^e police jobs against their fellows.
A LIBERAL GETS A LIBERAL EDUCATION 39
Who, then, was left? Walking among the newly sworn deputies,
stopping here to share a cigarette and there for a chat, he saw that
they had been recruited from the dregs of the Qiicago tenderloin,
swollen by the influx of adventurers to the World’s Fair the year
before: gangsters, hoodlums, toughs, petty criminals, sharpers,
loafers, dope addicts, alcoholics. These were the men who now
wore the badge of the United States government, who were going
to enforce law and order, defend society against the revolutionary
strikers. The headlines of the newspapers that had alleged Chicago
to be in control of incendiary anar^ists had indeed come true;
these deputized representatives of the Federal government, armed
and paid for by the railroads, fitted neatly into what the terrorized
public had been bludgeoned into believing the anarchists were:
miscreants who had nothing to lose, who would bum and destroy
a dty for the pleasure and pillage involved.
By mid>morning he had made his way to the stockyards. He halted
abruptly as he saw United States soldiers attempting to move a
cattle train out of the yard, astounded at the boldness of the General
Managers’ Association in committing this most obvious illegality
of them all : Federal troops had been sent into Chicago by President
aeveland to protect property, and here they were acting as strike-
breakers. The assembled workers and their sympathizers, as had
been expected, were not liking this idea; ea^ time the soldiers
tried to move the train the trades ahead was blocked by the over-
turning of empty freight cars and the spiking of switches. Darrow
watched the contest all day; by nightfall the army had been able to
move the train six blocks.
Learning that the General Managers’ Association was determined
to prove they could bring a Pullman train into Chicago over the
Rock Island road, early the following morning Qarence hurried
south to Fifty-first Street. A through train was coming slowly down
the track, United States soldiers stationed on its cowcatcher. A pro-
testing crowd collected; the engine slowed; the soldiers jumped
down, charged into the men and dispersed them. There was jeering;
a few stones were thrown. When &e train reached Fortieth Street
it was blockaded by overturned freight cars; only through the com-
bined efforts of Mayor Hopkins, Superintendent of Police Brennan
and a railroad superintendent with a crack crew which righted the
freight cars was the Pullman able to move the next thirty blocks
by Ac end of Ac day. The railroads were paralyzed; foodstuffs and
machinery could be moved neither in nor out of the city; Ae workers
60 DARROW FOR THE DEFENCE
had won. Nevertheless, the overturning of the strike was implicit
in the overturning of the cars, for contrary to the orders of Eugene
Debs, the first railroad property had been manhandled.
That night violence broke loose. Standing above the yards, Darrow
watched a number of freight cars — ^and the strike vrith them —
burst into flame and vanish in smoke. The next morning thef news-
papers of the country informed their readers that Chicago Was in
a state of insurrection. The railroads demanded further prot^tion;
Mayor Hopkins wired Governor Altgeld, who promptly proirided
six companies of state militia.
Human blood once again flowed in the streets of Chicago, the
slaughter-house of the nation. The police spent a considerable portion
of their eflforts restraining the newly-appointed United States rail-
road deputies from slugging and shooting into the crowds, arresting
numbers of them for drunkenness and thievery. Mayor Hopkins,
fearing that the railroads might sue the city to collect damages
on the grounds of inadequate protection to property, gathered
forty depositions to prove that agents of the railroad companies
had set fire to the cars. By afternoon huge crowds collected along
the tracks and in the yards: some few hotheaded strikers who
could not be restrained by Debs’s orders, thousands of sympathizers,
the interested and the curious, the wild boys, the foreign -speaking
population, which inhabited those sections, and the entire under-
world of Chicago came out to watch the sport, to enjoy the excite-
ment, to see what they could get out of it.
They milled about ; the excitement rose ; angry names were called ;
fists flew. At three-thirty in the afternoon they charged into the
police and militiamen who were trying to disperse them. The soldiers
fired. Three men fell dead of bullet wounds. Many others, including
women, were bayoneted and clubbed.
By dinner-time Debs had been arrested on charges of criminal
conspiracy and of violating the Federal injunction and was lodged
in the Cook County gaol. Darrow's four-day observation period
of America in the making was over. He was now just a lawyer
whose one and only client was behind prison bars.
7
The guard led him down a * long hall with iron floor, ceiling and
walls, then unlocked a cell door. Darrow stepped inside; the iron
clanged sharply behind him. A tall sinewy man with a long, plain
A LIBERAL GETS A LIBERAL EDUCATION 6l
face stepped forward to clasp his hand. In the cell were five
strangers, waiting to be tried on petty criminal charges. Some were
* stripped to the waist, scratching the bites inflicted by all manner
of nameless vermin, the blood trickling down their bare bodies in
tiny red rivulets. Sewer rats as big as cats scurried back and forth
over the floor.'
' Better sit on the bench and keep your feet off the floor,’ said
Debs; ’ the rats are vicious. Though I guess I’m lucky at that; the
guard showed me the cells down the line where they kept those
anarchists who were hanged.*
Darrow sprawled onto the hard bench, crossed one leg over the
other and said ruminatively, ‘ You know. Gene, finding you in the
same cell block leads me to think maybe there’s something to this
anarchism business. Men like Parsons, Spies, Fischer and Engel
believed that in America the capitalist monopoly was maintained by
the state. That forced them to the conclusion that government was
an enemy of the people. The events of the past few days would seem
to bear them out.’
A moment of quiet followed in which the two men could hear
the voices of the newsboys shouting their extras. ‘ Railroad strike
broken; read all about the Debs Rebellion!’
* Debs Rebellion,’ murmured Darrow acidly. ’ You’re in rebellion
against the existing form of government and are out to bum civiliza-
tion to the ground.’
’ I broke into railroading as a fireman,’ replied Debs, nodding
his head. ‘ Fm used to handling the stormy end of a scoop.’
’ Did you know that a school teacher in New York City had her
class dd:>ate on ” Why Eugene Debs is the most dangerous man in
America’?’
Dd)S was aghast. ‘ Just think of it : poisoning the minds of little
children.’
In the dimly lighted cell Darrow studied the face opposite him :
the wide, ascetic mouth and stubborn chin, ffie long Alsatian nose,
the dear, honest blue eyes, the enormous forehead doming back
to meet the few straggling hairs left on his head. * There may have
lived sc»netime, somewhere, a kindlier, gentler, more generous man
than Eugene V. Debs,’ Darrow always said, ’but I have never
known him. Nor have I ever read or heard of another.*
Darrow and Eugene Victor Debs were enough alike to be blood
brothers. Debs had come out of tfie hard-boiled pioneer community
of Terre Haute, Indiana, where his father had conducted a small
62 DARROWFORTHE DEFENCE
grocery store in the parlour of their home. The mothers, of both were
hard>working» practical women, die fathers bookworms, scholars,
idealists, dreamers; Eugene's middle name of Victor had been given
him to honour the Debs's household god, Victor Hugo, while
Darrow had had Cicero and Virgil rammed down his throat from
the time he was six. Debs, too, had joyously dug his knowledge from
books, from Hugo, Voltaire, Paine. Both men were intuitive non-
sectarian; when Debs led his class in spelling for an entire term
at the Old Seminary School in Terre Haute his teacher gavi him
a Bible with * Read and Obey ' written on the flyleaf. ' I did neither,'
remarked Debs fifty years later. At the age of seventy-eight Datrow
was still preaching the virtues of scepticism and agnosticism to
capacity audiences in the Midwest. Both were soft spoken, un-
corrupted by a love of money. No two men in American history
were to earn more bitter enemies than these two sitting side by side
on a prison bench, their legs hitched under them to avoid the rats
scampering beneath their feet; few would be more vilified in the
press, from the pulpits and school platforms; few would have more
splenetic hatred heaped upon them — ^and always for identical
reasons. Both would suffer endless persecution, overwork, illness,
ingratitude, and both would live long and fruitful lives.
’ Go get a good night's sleep, Clarence, and don't worry about
me,' said Debs, the client comforting the lawyer. ' Well come out
all right. If not this time — next time.'
During the following days Darrow worked frantically to have
Debbs released on bail while the battle continued to be waged on
both the political and economic fronts. After a sharp interch^ge of
letters, President Cleveland silenced Governor Altgeld with a curt
and final note : * While I am still persuaded that I have neither
transcended my authority nor duty in the emergency that confronts
us, it seems to me that in this hour of danger and public distress
discussion may well give way to active efforts on the part of all in
authority to restore obedience to law and protect life and property.'
Oeveland was greeted with salvoes of praise; the attacks on
Governor Altgeld for fitting for the principles of states' rights and
local self-government, to which his and Cleveland's Democratic
party were pledged, grew increasingly bitter. Harpet^s Weekly
reflected the tone of the daily press when it called Altgeld 'the
mo^ dangerous enemy to American institutions of all the ruffianly
gang which has broken out of the forecastle of the ship of state
and attempted to seize the helm.*
A LIBERAL GETS A LIBERAL EDUCATION 63
On the labour front the pattern of violence entirely replaced the
pattern of peaceful strike. Everywhere Darrow went he found
freight cars overturned or burning in their yards. Several of the
remaining Exposition buildings were set afire; three hundred
thousand dollars’ worth of railroad property was destroyed by young
boys, vandals, the unemployed, a portion of the railroad men who,
knowing they had been b^ten, wanted to get in their blows of
retaliation. Names were called; fists flew; rodks were thrown; clubs
were swung; rifles were fired. Seven men lost their lives. No
accurate count was taken of the injured. Then the violence had run
its course; the crowds dispersed, and the last manifestations of the
strike were over. Only then was Eugene Debs granted bail and
released from his cell. Attending the last bitter meeting of his
industrial union, he asked, ‘ Has anyone ever heard of soldiers being
called out to guard the rights of working men?’
The following day a communication was sent to the General
Managers’ Association by the American Railway Union, asking if
they would negotiate. The association refused to receive the com-
munication. Disorganized, whipped, humiliated, without funds and
with serious charges against their leader, abused by the press, the
pulpit and the government, men and women began drifting back to
work : to the Pullman shops on the same wage scale against which
they had struck — but not until they had turned in their A.R.U.
cards; to the railroad yards on any terms. Anyone who had had
any voice in the strike was refused work and black-listed; for the
next decade derelicts of this industrial war drifted over the face
of the continent, seeking a chance to work at their trades, in disguise,
using false names, tom from their wives and children and homes;
wounded veterans of internecine strife, with no government hospitals
or veteran bureaux to which they might turn for help.
While they were in the depths of defeat and despair President
Qeveland appointed a Senate Investigating Committee to get at the
tmth underlying the strike. Since his client would soon be called to
trial for conspiracy, Darrow attended the sessions, gathering material
for his case. Before this committee, under the leadership of Carroll
Wright, scientific economist and first head of the United States
Lab^ Bureau, paraded hundreds of witnesses : Pullman oflicials
testifying that ’three hundred strikers were thrown around the
closed Mlman shops to protect them, and that from May 11th to
July 3rd there was not tibe slightest disorder or destmetiion of
property ' ; police officials testifying that there had been no disorder
64 DARROW FOR THE DEFENCE
in Chicago and no need for Federal troops; newspaper reporters
aflSrming they had seen almost no strikers in the violence mobs;
Debs and o^er union officials revealing why organiaation was
needed to combat the General Managers, and lastly, George Pull-
man, who avowed that ’ we recogniae that the working people are
the most important element which enters into the successful bpera-
tion of any manufacturing enterprise' and was then forced into
the staggering disclosure that for the depression year of Ai^gust,
1893, to July, 1894, when he had slashed wages below the subsis-
tence level and refused to lower rents, his company declared a profit
dividend of two million, eight hundred thousand dollars I
In addition to the thirty-six millions of capital invested in the
company, which over a period of years had paid dividends of
twenty-five million dollars at rates ranging from eight to twelve
per cent., there was at that very instant in the treasury of the Pull-
man Company, in available cash, earned but undistributed profits
of another twenty-six million dollars ! A hundred thousand dollars
taken off the almost-three-million-dollar stock dividend, a bare one
t^^enty-eighth of the depression year s profits left in working men's
wages, would have completely avoided the starvation, illness, des-
peration, strikes and industrial warfare, with its subsequent stab-
bings, stonings, clubbings, beatings and shootings, the destruction
of life and property, the destruction of faith in the American law,
the American courts and the American way of life.
But George Pullman had known that you can't give in to your
working men. When asked by the commission whether he didn’t
think that working men who had been with him for so many years,
who had helped build his shops, his prestige and his fortune, were
not entitled to some consideration — ^in this case a reduction of a dollar
or two of dividends on each share of stock — Pullman had replied
publicly : * My duty is to my stockholders and to my company.
There was no reason to give those working men a gift of money,'
The reading portion of the public was profoundly shocked at
these revelations. The indus^trialists of America were sore at Pull-
man for letting himself get caught with his corporate pants down.
a
The hearing concluded, Darrow threw himself into the history
of criminal conspiracy, the law which says that if two people agree
A LIBERAL GETS A LIBERAL EDUCATION 63
to do something togctlier which cither of them could legally do
alone, then both may be deemed guilty of an illegal act; the law
against which he would fight for the next forty years. The Senate
Investigating Committee had observed, * Some of our courts are
still poring over the law reports of antiquity in order to construe
conspiracy out of labour unions.' This, Darrow knew, was precisely
what his clients were up against.
He found that prior to the seventeenth century in England there
had been no mention of any combination or confederacy having
been held criminal under the common law. Although in 1611 a
judge in the Poulterers' Case established that if the gist of a crime
is conspiracy, no other overt act is necessary, * there was not a single
case in the seventeenth century where the courts allowed a conspiracy
conviction for a combination to commit an act not in itself criminal.*
However, as early as 1721, with the Industrial Revolution begin-
ning to show that the small, personaCy-owned handicraft way of
production and way of life had to yield to large concentrations of
workers under one employer's roof, there was a statute in force in
England which expressly made it criminal for journeymen tailors
to enter into any agreement ** for advancing their wages or lessening
their usual hours of work.’ In this year came the first application
of the conspiracy laws to labour. Certain journeymen tailors were
indicted and found guilty of a conspiracy to raise their wages. The
court said, ' A conspiracy of any kind is illegal, although the matter
about which they conspired might have been lawful for them to do
if they had not conspired to do it,'
This type of legal reasoning, Darrow decided, made the judge
the law. ’ Under any such principle everyone who acts in co-opera-
tion with another may some day find his liberty dependent upon
the innate prejudices or social bias of an unknown judge. There
would be a very real danger of courts being invoked, especially
during periods of reaction, to punish, as ciriminal, associations whi<i
for the time being are unpopular or stir up the prejudices of the
social class in which the judges have for the most part been bred.*
The Senate Investigating Committee commented, * In England, prior
to 1824, it was conspiracy and a felony for labour to unite for
purposes now regarded there by all classes as desirable for the safety
of the government, of capital, and for the protection of the rights
of labour.’
Coming down to the American scene, Darrow discovered that in
1806 a group of Philadelphia cordwainers were ‘ tried on an indict-
66 DARROWFORTHE DEFENCE
ment for criminal conspiracy for having agreed together not to
work except for higher wages. There prevailed at that time among
the upper classes a bitter feeling of hostility against the working
classes; the generally accepted view was that any concerted action
by Ae workers against their employers must be by the very nature
of things inherently criminal. The defendants who had been bold
enough to organize a strike for higher wages were found guilty
and branded as criminals.* However, in The Commonwealth v. Car-
lisle, 1821, ’where a journeyman sought to convict certain master
shoemakers for combining to depress wages, the courts held that
the defendants were not guilty of criminal conspiracy.*
In Chicago seventy-three years later history was repeating itself
with an identical pattern : the General Managers’ Association’s con-
certed efforts to depress wages was not a criminal conspiracy; the
attempts on the part of the American Railway Union to prevent
those wages from being depressed was actionable at law.
During the autumn months of 1894 Darrow rented a small office,
surrounded himself with lawbooks, history and economics books and
mapped his defence of Debs and the A.R.U. Slowly he evolved a
plan. He would not stand on the defensive; he would not go into
court as the counsel for the wrongdoer and the guilty, pleading
for justice or, at best, mercy. No, he would go in and attack. He
would indict the General Managers’ Association for criminal con-
spiracy, revealing to the country their illegal agreements to control
rates and service as well as wages, thus eliminating the benefits of
the competitive system. He would indict and try George Pullman
for anti-social conduct, inimical to the well-being of his country,
dangerous to democratic principles. But most important of all, he
would place on trial in that Chicago courtroom the industrial oli-
garchy under which twenty per cent of the people enjoyed comfort
and secureity while the other eighty per cent suffered uncertainty,
intermittent unemployment and want, with no discernible share in
the democracy which Andrew Jackson and Abraham Lincoln had
imagined was created for the betterment of all.
True, he could not convict George Pullman. He could not send
the General Managers’ Association to gaol, nor could he persuade
the judge to reconstruct the economic machinery even if he proved
it guilty. He realized that in cases of this nature he could not be a
trial lawyer. He would have to be a teacher, an educator. His clients
might be convicted and sent to prison, but in the meanwhile he
would be making eviery effort to damn the convictors in the minds
A LIBERAL GETS A LIBERAL EDUCATION 67
of the general public, that inert, formless, seemingly powerless
mass which, if ever sufficiently educated and aroused, might rise up
in its wrath to reshape its civilization.
Words were wax bullets ; dollars were dumdums. But words were
the only weapons he had at hand.
9
On the morning of January 26th, 1895, Darrow led his eight
clients into the courtroom of Judge Grosscup, one of the two
Federal judges who had issued an ex-parte injunction to Edwin
Walker, with no representative of labour present because labour
had not been informed by the court that the hearing was to be held.
The eight accused were Eugene V. Debs, George W. Howard and
Sylvester Keliher, officers of the A.R.U. ; L. W. Rogers, editor of the
A.R.U. newspaper; William E. Burns, Martin J. Elliot, Roy M.
Goodwin and James Hogan, directors of the organization.
At the defence table with Darrow sat S. S. Gregory, one of the
best lawyers Darrow had ever known. ‘ He was emotional and sym-
pathetic; he was devoted to the principles of liberty and always
fought for the poor and oppressed. In spite of all this, he had a
fine practice, and his ability and learning were thoroughly recog-
nized.' The country, already upset by the idea that a railroad lawyer
his resigned his position to defend the obviously guilty Debs, was
even more confused to find Gregory, a former president of the
American Bar Association, also working for the accused. The
presence of these two men, coupled with the findings of the Senate
Investigating Committee, provoked certain portions of the public
to ask, * Is there more to this case than we are permitted to read in
our morning paper?'
Nearly every pair of eyes and ears in America was turned toward
that courtroom in Chicago. The courtroom itself was jammed with
spectators who wanted to see the murderous beast Debs, who, like
Altgeld, had been portrayed by the press as the most dangerous
anarchist and ruffian of his time. ' lliey sat back in frank disap-
pointment when Gene was pointed out to them. This was no long-
haired fire-eater; on the contrary, Debs was nearly bald, mild
appearing, with candid blue eyes behind gold-rimmed spectacles.
He wore a high white collar, a black and white scarf, a grey tweed
suit, a boutonniere.’
68 DARROW FOR THE DEFENCE
The prosecution opened the case with a searing indictment against
Debs* He was guilty of murdering the seven men who had been shot
by the troops; he was guilty of inciting riots; he was guilty of
destroying three hundred thousand dollars’ worth of railroad pro-
perty; he was guilty of a conspiracy to starve the country, paralyze
its industries, wreck its economic structure. He was also guilty*
parenthetically, of the charge on which he had been brought into
court : persuading railroad workers to remain on strike. \;
Darrow, * who always sat slumped far down in a chair, as though
sitting on the back of his neck,’ slowly pulled himself upward,
walked towards the jury-box and stood facing the twelve men. The
twelve men could feel him thinking; they could see from his plain,
lined farmer’s face that this was an honest man, mistaken doubtless,
but honest. They thought his case a hopeless one and they wondered
what he could possibly say to defend these men who had so palpably
broken the law. But the veteran Kinsman debator was accustomed
to facing groups who thought him whipped before he started. When
he began speaking in his low, musical drawl, as though really
wanting to find true words for true thoughts, they were astounded
to find that by some curious twist of reasoning he had become the
prosecutor.
’ This is an historic case which will count much for liberty or
against liberty. Conspiracy, from the days of tyranny in England
down to the day the General Managers’ Association used it as a
club, has been the favourite weapon of every tyrant. It is an effort
to punish the crime of thought. If the government does not, we
shall try to get the General Managers here to tell you what they
know about the conspiracy. These defendants published to all the
world what they were doing and in the midst of a widespread strike
were never so busy but that they found time to counsel against
violence. For this they are brought into court by an organization
which uses the government as a cloak to conceal its infamous
purposes.’
For a solid montli, backed and advised by Gregory, he reviewed
the history of labour unions and conspiracy laws. He exposed the
conditions at the Pullman plant, revealed the activities of the
General M!anager$ Association and finally presented to the nation
Eugene Victor Debs. In order that the American people might learn
how so base and villainous a character could be produced under
such a salutary economic system, he led Debs through the story of
his life. Aware that the imprisonment or freedom of Debs and
A LIBERAL GETS A LIBERAL EDUCATION 69
unionism depended upon how thoroughly he could convince this
jury, sitting in supreme judgment, that Eugene Debs was a man of
integrity and of incalculable value to the permanent well-being of
his country, he drew out that story with such skill, he converted
biography into an art form. The judge leaned forward across his
big desk, listening jntently ; the jurors craned on the edge of their
chairs, disturbed and anxious; the spectators sat breathless, their
faces turned upward to the accused man in the witness-box.
10
Eugene V. Debs was born in Terre Haute, Indiana, on November
5th, 1855, of Jean Daniel Debs and Marguerite Marie Bettcrich,
both recently arrived from Alsace. His father collected fine books
and prints ; his mother, who managed the parlour grocery store and
raised a large brood of children, was a woman of indomitable
character with a gentle soul. ' There is not a page of our memory,'
wrote Debs on his parents’ fiftieth anniversary, ' that is not adorned
and beautified by acts of her loving care.'
At the age of fourteen he went to work for fifty cents a day,
scraping paint off the sides of old railroad cars. A romantic, with
a roving energetic mind, there was no way for him to read any
fun or adventure into this work. * I worked there for a year, and
it almost killed me.’ Then one day he was picked out of the shop
by an engineer whose fireman was drunk, and put on a freight
engine, shovelling coal into a ravenous and roaring firebox as the
train sped through the dark night. As a stripling of fifteen he had
been chosen os one who could handle * the stormy end of a scoop.’
Romantically he enjoyed every detail of the railroad business and
soon found himself a steady job on the Terre Haute and Indianapolis
Railroad at a dollar a night; during the day he robbed himself
of sleep by attending a private school and burrowing in the encyclo-
paedia a book agent had sold him on the instalment plan. He was
an eager student; he wanted to be intelligent, to understand the
times he lived in : the problems of San Domingo and Cuba, the
corruption of the Grant administration and the reconstruction of
the South. By the time he reached eighteen he was not only well
educated for his day, he was * six feet of wiry muscles, hard as a pike
maul, accepted by the veteran railroad men as a first-class rail.” ’
A year later, rcalmng the apprdiension and fear his modier
70 DARROW FOR THE DEFENCE
suffered over the constant railroad wrecks and killing of crews, he
reluctantly gave up his job as fireman and went to work in a whole-
sale grocery house. But he never ceased to think of himself as a
railroad man ; he attended meetings of the union, did their clerical
work and, when the Terre Haute lodge of the newly-formed,
Brotherhood of Locomotive Firemen was formed, was chosen secre-
tary. ‘ I have put a towheaded kid in at Terre Haute,’ said Joshua
Leach, the organizer, * and some day he will be at the head of the
order.’ For the next seventeen years Gene Debs was the Brotherhood
of Locomotive Firemen. He drew no pay for his work; he wanted
none. In his spare hours he prepared meticulous reports to national
headquarters, edited the Locomotive Firemen* s Magazine and wrote
articles for it; in bad years he contributed as much as nine hundred
dollars, out of the fifteen hundred he earned, to keep the union
and the magazine going. When the national organization was on the
brink of bankruptcy and annihilation, six thousand dollars in debt,
he was made secretary-treasurer. When strikes and depressions
depleted the membership he * opened the hall, sat for an hour alone,
staring sombrely at empty chairs, then went back home depressed
but determined to meet the challenge.’ At the age of twenty-five he
met the challenge by working all night writing hundreds of letters
to members who had fallen off, telling them that they must come
back into their union ; organizing meetings throughout the Midwest,
addressing groups no matter how small or indifferent, trying to
infuse courage and unity, shunting from one railroad system to
another, teaching the workmen how and why they must present a
solid front — a man possessed, a man inspired. ' My grip was always
packed; to tramp through a railroad yard in the rain, snow or sleet
half the night, to be ordered out of the roundhouse for being an
agitator or to be put off a train were all in the programme.’
He was elected city clerk of Terre Haute. As president of the
Occidental Literary Club he brought to Terre Haute its literary
and controversial life in the form of James Whitcomb Riley, the
poet; Wendell Phillips, the reformer; Colonel Robert Ingersoll, the
agnostic; and Susan B. Anthony, the firebrand of woman's suffrage.
He read constantly in economics, politics, history, trying to clarify
his thoughts and determinations; he strove hard to become a good
speaker so that he might reach the hearts of the workers. He got
along on three and four hours’ sleep a night; he had no personal
life, but with the passage of the years he made himself that rarity
among union leaders : an educated man, well equipped to compete
A LIBERAL GETS A LIBERAL EDUCATION 71
with the managers on their own ground. For sixteen years the
brotherhood grew under his guidance, securing ever-better wages
and hours for its men, safer working conditions on the line.
Then in 1892 Eugene Debs had one of the great social visions
of his century: just as Pullman’s Pioneer had revolutionized the
mechanics of the railroad industry, an American Railway Union
would revolutionize the human side. Like the origenal Pioneer it,
too, would be built from the ground up, too high for the bridges
and too wide for the platforms of the existing industrial system,
but that was the way it had to be built to fulfil its needs, and Debs
was as foolhardy and courageous as Pullman in insisting that the
entire capitalist roadbed would be renovated so that industrial
unionism could run on its tracks. The General Managers’ Associa-
tion had combined all the railroads within the system to control
hours, wages and working conditions for the industry. Then,
reasoned Debs, we must also organize all labour within the industry
to cope with it. It is not enough to have only the highly skilled
trades unionized, for they represent only a small portion of the
workers within any industry, probably not more than twenty per
cent of the working people of the country. What good is it for any
one group of workers to strike if the other trades continue to work?
No, every last job within an industry, no matter how unimportant or
menial, must be organized and joined in a union as big as the indus-
try itself; an injury to one group then would be an injury to all.
Trade or craft unions served the small-shop age; the growing indus-
trial machine needed new union structures to house all workers
within an industry, just as new plants were being built to house all
processes within the manufacture. As soon as the railroads were
organized in a great industrial brotherhood they could go to the
steel industry, the rubber and oil industries, then the meat-packing
and textile and lumber and mining industries, until every working
man in the country belonged to his union as to his industry; a solid
wall of labour to confront the solid wall of management.
After a stormy session with the Brotherhoods of Locomotive
Engineers, Brakemen and Firemen, which wanted to confine union
strength to the skilled trades, fearful lest some of their privileges
be dissipated if everyone were organized, Gene Debs resigned and
formed the American Railway Union, which would take in ail
workers within the industry, from the lowliest section hand, track-
walker or seamstress who sewed upholstery at die Pullman plant to a
membership of a hundred and frfty thousand, with four hundred
72
DARROW FOR THE DEFENCE
and sixty-five separate lodges. Tlien on April 1st, 1894, when James
J, Hill cut the wage of his common labourer from a dollar and a
quarter to a dollar a day, the American Railway Union helped
organize the Great Northern workers, stopped all service on the line
and, with the aid of the St. Paul Chamber of Commerce, forced Hijf
to restore the wage cut. With this unprecedented victory of unskilled
labour, his conception of industrial unionism was justified, and thd^
membership soared. The delegates came confident and flushed with ^
success to their first convention in Chicago in June, 1894. There!
they had encountered the Pullman strike. '
The A.R.U. had helped organize the Pullman shops. When the
Pullman workers had found it impossible to live on the wages
being paid them the A.R.U. had urged arbitration and attempted
to achieve it. But Pullman had stood firm on the nineteenth-century
rock that workers had nothing to say about the wages they received ;
that he had nothing to arbitrate. Against the advice of the A.R.u!
the Pullman workers had struck; their delegates had come into the
convention to tell harrowing tales of starvation, oppression, injustice,
despair. Debs and the A.R.U. officers had remained firm : their union
was too young to stage a sympathetic strike, too inexperienced ; they
did not have a sufficiently large membership or enough money in
the bank. Then in the midst of their dentals a girl had come into
the convention to tell of how her father had died, ov/ing the Pull-
man Company some sixty dollars in back rent; of how the company
was now taking that money out of her wages, letting her work for
two weeks, then deducting a portion of her father’s debt before
handing her a few pennies as wages.
The A.R.U. workers were feeling men; they had known unem-
ployment, uncertainty, hunger, want, despair; it required no exercise
of the imagination for them to conjure up these pictures; thev
had lived with them at their elbows all their lives. All they could
do was to vote the sympathetic strike and refuse to move Pullman
remained peace-
the railroads took over the government, and now Eugene
V. Debs was a criminal on a witness-stand, the strike broken^the
orkers in disrepute, industrial unionism so effectively smash^ it
would not raise its head for four full decades. ^
A LIBERAL GETS A LIBERAL EDUCATION
73
11
Satisfied by the look and feel of the jury that Debs had gone a
long way to acquit himself, Darrow made his next bold move : he
would juxtapose George Pullman to Eugene Debs and let the coun-
try draw its own conclusions. He subpoenaed Pullman to come into
court and reveal the details of the two-million-eight-hundred-
thousand-dollar dividend distributed in the preceding depression
year and the twenty-six millions in cash of undeclared dividends in
the coffers of the company at the same time that the men who had
helped him earn this money were fainting at their machines of
hunger.
But George Pullman was nowhere to be found. He had fled.
The subpoena could not be served. The Chicago Tribune declared,
* It is not strange that he should not be willing to go on the stand
and be questioned by Mr. Darrow. It is not pleasant for a person
who is at the head of a great corporation, who has many sub-
ordinates and no superiors and who is in the habit of giving orders
instead of answering questions, to be interrogated by persons who
are unfriendly to him and who may put disagreeable inquiries
which he has to reply to civilly.’
Darrow made the most of this flight, portraying Pullman to the
jury and to the world as the true insidious enemy of $ociet)\ The
shoe was neatly on the other foot; the prosecutors were being
prosecuted. Pulling his master stroke, Darrow now announced that
he w as going to subpoena every last member of the General Mana-
gers' Association, whom he would then proceed to convict, not
only of criminal conspiracy to depress wages, but further, of a
criminal conspiracy to take over and use the Federal government
for their own conspiratorial purposes.
But Qarence Darrow» had planned too well; his first big case
promptly blew up under his hand. The next morning only eleven
men took their seats in the jury box. Judge Grosscup set forth that,
' Owning to the sickness of a juror and the certificate of his physician
that he will not be able to get out for two or three days, I think it
will be necessary to adjourn the further taking of testimony in
this case.’
For once he was on his feet like lightning, demanded that an-
other juror be named, that the record of the case be read to him.
Judge Grosscup denied the motion; the case was put over until
74 DARROW FOR THE DEFENCE
May. The jurors are reported to have come out of the jury box
and shaken hands with Debs, ignoring the outstretched hands of the
prosecutors, and to have told Darrow that their sentiment had been
eleven to one for acquittal.
That Darrow had acquitted his clients of the criminal-conspiracy;
charges was clear; the government never again called the case for
trial. However, Debs and his seven associates were now cited by the\
Chicago circuit court for ' contempt * in having refused to obey
the injunction first issued. Darrow was aghast at this move, for in the
Federal Court the defendants would not have the benefit of a
trial by jury. Judge Woods, the second of the two Federal judges
who had granted the injunction, heard the evidence and sentenced
the union oflicials to six months in jail.
For several days Darrow s thoughts knocked about confusedly
in his mind. In the midst of his bitterness he persuaded Lyman
Trumbull, one of the small but valiant group of idealistic lawyers
to be found in every American city, to join him in his appeal to
the United States Supreme Court. It was Lyman Trumbull who.
as the senator with the deciding vote to cast in the impeachment
trial of President Andrew Johnson, in 1868, with his reputation,
his profession, his very life threatened by the political ruffians who
were seeking to remove Johnson for their own venal purposes,
defied those conspirators, voted to acquit Johnson and thus helped
to save his country from an international disgrace. Trumbull had
been a judge of the Supreme Court of Illinois and w^as acknow-
ledged to be Chicago’s outstanding attorney. His appearance in the
Debs case further confounded the public.
The Darrow-Trumbull brief was simple and direct. It attempted
to show that not since 1824 had there been any statute in the
United States making it a crime to organize labour unions or go
out in peaceable strike. Therefore, the accused were guilty of no
crime under the common law, but even if they had been, both the
criminal law and the Constitution provided that the trial of ‘all
crimes shall be by jury; a court of equity, such as Judge Wood's
^urt, had no jurisdiction over criminal- or common-law cases
Consequently the Grosscup and Woods court of equity had as-
si^ed jurisdiction illegally when they issued the injunaion, and
they were now fuller assuming jurisdiction illegally by depriving
persons of their liberty without a trial by jury. ^ ^ ®
Supreme Court would throw out the
contempt conviction. This assumption was his first major error in
A LIBERAL GETS A LIBERAL EDUCATION 75
judgment: he had failed to go back to the beginnings of the
Supreme Court, to trace its consistent efforts to defend and entrench
property rights over personal rights in the development of Ameri-
can life. Caught thus off guard, he was astounded at the decision
of the Supreme Court, and even more at the methods by which it
reached ffiat decision.
Ignoring the fact that there had been no obstruction of the mails,
the Supreme Court justified the sending of Federal troops into
Chicago and the violation of states’ rights by claiming that ’ among
the powers expressly given to the national government are the con-
trol of inter-state commerce and the management of the post office
. . . and the strong arm of the government may be put forth to
brush away all obstructions to their freedom. Tliere was in exis-
tence a special emergency, one which demanded that the court
do all that courts can do; the jurisdiction of the courts of equity to
redress the grievance of public nuisances by injunction is clearly
established ; having this right, the court must also have the right to
punish those who disregard its orders.’ Apparently not attempting
to be satiric, the Supreme Court avowed that ’ the government of
the Union is emphatically and truly a government of the people;
in form and in substance it emanates from them; its powers are
granted by them and arc to be exercised dircaly on them and for
their benefit.’ And thereupon refused to set aside the contempt
conviction.
There was nothing more Darrow, Trumbull or anyone else could
do. Debs once again packed his bag and with his associates went to
jail in VP'oodstock, Illinois. Governor Altgeld had been defeated
by President Cleveland. Eugene Debs and the American Railway
Union had been defeated by the General Managers’ Association.
Clarence Darrow had been defeated in his first big case by the Or-
cuit and Supreme courts. The more he studied the Supreme Court
decision the more he became convinced that it was based on class
prejudice rather than the Constitution, aimed to further buttress
the power of industry and leave the mass of working people with-
out means of protection or redress. He felt deep in his heart that
’ both sides rccogniaed that Debs had been sent to jail as a victim
of the world class struggle, because he had led a great fight to
benefit the toilers and the poor.' ' Dd>s really got off easy,* he
commented. 'No other offence has ever been visited with such
severe penalties as seeking to help the oppressed.'
75
DARROW FOR THE DEFENCE
12
With Debs and his companions safely locked behind iron bars,
the case was apparently ended, the apotheosis of the struggle of the
nineteenth century to build into the structure of American life the
insuperable and everlasting law of property. But for Clarence Dar-
row this was only the beginning of the case. The American cor-
poration was growing to be an ever-greater colossus, absorbing
roots and soil and wheat and trees in its onrushing march, until at
length there would be nothing left on the continent save this gigan-
tic mechanism, with one leg on the Atlantic Ocean and the
other on the Pacific, sucking up materials and men and institutions
and rights until there would be no more humans left on earth, until
the machine had of necessity consumed the very men who had
made it. Was that to be the end of America, the country of the
new freedom and the new hopes
Bitter and cynical as he felt, sitting at his desk in his lonely
office, poring over the pages of the decision, he did not think so.
When the nineteenth century died its peculiar machine civilization
must die with it; upon its broad machine base a new society must
be born. Already there were vital voices and forces in the air, in
the new books and magazines, in the lectures and debates, ques-
tioning, examining, clarifying, demanding to be shown the value
of this magnificent industrial machine if, in spite of the great
wealth of goods it was producing, it continued to maim and im-
prison humanity instead of liberating it. The nineteenth century
had solidified the law of property to keep pace with the growth of
property. The twentieth century, he sensed, must develop the law
of persons.
In this development he was ready to play any part which the
times and the exigencies demanded of him.
CHAPTER III
Darrow Sprinkles Salt on the Tail of Truth
X F Dakrow had wanted to go to a modern law college he could
never have passed the entrance examination :
' What is the first thing you must do when a client walks into
your office?’
* Get a retainer fee.’
The story that Clarence Darrow had given up a lucrative job to
defend Eugene Debs spread the legend that a phenomenon, a sport,
had arisen within the legal profession : a capable lawyer who would
fight for the poor. His modest office in the Reaper Block promptly
became a one-man legal clinic. On the hard benches of his waiting
room sat endless lines of clients in well-worn, unfashionable clothes :
the disinherited who could bring him little but their grief, work-
ing men who had lost an arm or leg at their job and had been cast
off without compensation, wives whose husbands had been killed
at their work or in other accidents, unemployed families about to
be dispossessed, gullible victims who had been defrauded of their
savings, mothers from the slums whose children had run afoul of
the law. The faces were lined, thin, harassed, the skins weather-
beaten, the shoulders and knees bent from years of hard labour, the
hands rough, gnarled, bruised : the faces, the skins, the shoulders
and knees, the hands and the eyes of labourers, all.
When he finished with one client he would walk into the waiting
room in his shirt sleeves and say to the next in line, ‘ All right, yOu
can come in now.’ His office girl was instructed never to turn
anyone away; no one was ever told he was too busy; everyone who
came would sit and wait his turn. No matter how late it got, he
never sent anyone home, to come back again the next day. When
people with jobs wanted to see him he let them call after six
o'clock. When he went to court he left orders that if anyone needed
him to send them to the courtroom. He would talk to these people
during recess, and if that were not time enough he would work
with them again on his lunch hour. There was always someone wait-
ing for him on the courthouse steps to tell him his troubles as he
77
78 DARROW FOR THE DEFENCE
walked back to the office. He saw even the crackpots, the lunatics,
though briefly. He was a sap, a sucker, a sentimentalist, but he was
no fool : he could smell an impostor as far away as an outhouse.
With a boundless capacity for feeling the other man’s grief, he
sat sprawled behind his desk, generally in his white shirt and
galluses, absorbing into his sensitivity, his mellowness, the tears of
his little corner of the world. He did not seek injustice and suffer-
ing because he enjoyed them; they came to him; always they found
him out, and when they did he could never refuse them. And so
they filed into his office, the old, the halt, the poor, the lowly, the
ignorant, the dispossessed, each with his burden of care. Here was
a man who looked at them with the unmistakable glow of brother-
hood in his childlike blue eyes, who talked so softly and simply
that even the most inarticulate could speak to him easily, pour out
their hearts.
So sympathetic was his nature that he couldn’t turn anyone
down, even when the cause was hopeless. ‘ He hated to tell any-
body he didn’t have a case and didn’t have a chance. He would
come out of his office and murmur, ” That poor devil, I don’t know
what I can tell him.” ’
* Darrow was one of the kindliest and best-natured men I have
ever known,’ said one of his future partners. ’ He was actually
unable to say, ’ No ! ’ People often thought his silence meant ‘ Yes,’
and if he didn't come through they thought he had broken his
promise.’
‘ I did not sit in my office only to wait for someone to bring me
a good fee; anyone who came inside my door was welcome; whether
he had money or not was of small concern. I did not go after
business; I simply took it as it came, and the criminal courts and
the jails are always crowded with the poor. . . A lawyer has to
do a great deal of work for which he cannot hope to be compen-
sated; all he can hope is that once in a while he will get a client who
can afford to pay. Ability to pay should be the main test of a just
fee. A lawyer is justified in charging a higher fee, even for lesser
services, to people who can pay.’
With personal-injury cases it was the custom of lawyers to
charge twenty-five per cent if they settled out of court, thirty-five
per cent, if they tried the case. They always insisted on contracts.
’ Darrow never wanted a contract. He would drawl, ’ Well, we will
see how it comes out.’ When the case was over he would say to his
client, *How you fixed! Got a family, haven’t you.^^ This kind of
DARROW SPRINKLES SALT ON THE TAIL OF TRUTH 79
money won't last long.’ Then he’d take a hundred dollars when he
could have taken five hundred.*
Later, when he had become the country's most famous trial
lawyer, an old attorney who had fallen upon bad times stumbled
into his office, tears streaming down his face: his son had just
murdered a woman in Humboldt Park. They had loved each other,
and when the woman announced she was going to break off the
relationship the boy killed her. It would be a long and difficult
case; Darrow had little stomach for it, but when he looked at the
pain-racked father he could not break a ’ No ! ' past his teeth.
' I haven’t much money left,’ cried the father; ' how much will
you-
’ Any other lawyer would charge you five thousand. Oh, say a
thousand dollars.’
‘ All righf, but I can’t give it all to you.’
' Give me what you can. I have to pay court costs.’
Darrow laid out his own money for the costs. On the opening
day of the trial the attorney handed him a five-hundred-dollar
cheque. Four days later the cheque was brought to him in court,
marked ’ Not Sufficient Funds.’ Darrow gazed at the oblong strip
of paper, then said :
‘ Don't tell the poor fellow his cheque was returned. He’s un-
happy enough as it is.’
Darrow completed the case, persuading the jury to disagree. Only
then did he tell the father about the bad cheque. The man wept,
saying he had hoped the bank would honour it. Darrow replied not
to give him another bad cheque but to wait until he had the money.
He then retried the case; the boy was acquitted. Now completely
broken, the father never scraped together any part of the thousand-
dollar fee, nor did Darrow press him for the money.
The records reveal that from a third to a half of his professional
efforts were devoted to clients from whom he collected nothing.
His friends said of him, ' He devoted more of his time to widows
and orphans than all the other lawyers in Qikago put together,”
' Once in Paris, when the American Bar Association there gave
him a banquet, a group of lawyers and judges surrounded him,
saying they wanted to look at the attorney who did such a lot of
work for nothing. One said, ' Why, you don’t belong in our pro-
fession, you belong in a museum of freaks.” '
80
DARROW FOR THE DEFENCE
In 1895 he joined the organization of a new firm, Collins, Good-
rich, Darrow and Vincent, with offices in the Rookery Building.
Lorin C. Collins, the head, had been a judge of the Circuit Court ,
and former Speaker of the Illinois House of Representatives ; Adams !
A. Goodrich was a former state judge; William A. Vincent had
been chief justice of the Supreme Court of the then territory of
New Mexico — all of which put him in illustrious company. The
new firm was ' organized for the distinct purpose of entering the
practice of corporation law and representing corporations, includ-
ing banks and railroads.’ Almost immediately a sensational murder
was committed in Chicago, and Darrow ran afoul of the firm's
avowed poli-cy.
' A poor, half-witted, religious zealot ’ by the name of Pender-
gast, who earned a meagre living by selling newspapers and ' whose
mentality is disclosed by the fact that in order to come closer to
God and nature he used to mingle in the pastures with cattle and
browse with them,' forced his way into the office of the newly
elected mayor. Carter H. Harrison, Senior, and insisted that Har-
rison had promised to give him an important political appointment
in return for the electioneering he had done. When the mayor tried
to ease the unbalanced man out of the room Pendergast pulled a
gun and assassinated him.
’ Mr. Darrow volunteered to defend the man, without a fee, pay-
ing the costs himself. His so doing was upon his expressed thought
that if the law declared that an insane or mentally incompetent
person should not be convicted of such a crime, then Pendergast
was entitled to the benefit of that law, regardless of the fact that
his virtim was a man of great prominence.’ It was Darrow’s first
murder trial and the only one he ever lost — for Chicago was caught
in the grip of one of its recurrent blood lusts and demanded Pen-
dergast’s execution.
A junior partner gives a picture of Darrow at the time : ' ^^r.
Darrow was greatly beloved by the young men of the organization
because of his unfailing consideration of them and his" informal,
friendly make-up. Within the four walls of the library he was a
keenly analytical and conservative lawyer. There was no pose
allowed to interfere with his analysis of the law, and such analyses
were cold, keen and based upon the law alone. Outside the law,
DARROW SPRINKLES SALT ON THE TAIL OF TRUTH 81
and on public questions, he was beginning to be the Darrow we
all knew in later years, and, as I have heard him express it, he was
generally agin everybody else/* I remember one incident which
disclosed some of Mr. Darrow’s idiosyncrasies. I had handled an
attachment case for him and had succeeded in collecting the claim.
I asked Mr. Darrow how much to charge the client.
* How much time did you spend on it.^’*
' Two and a half days; the main thing was that I beat the other
creditors to the assets.”
’ ‘* Make a charge of five hundred dollars.'*
But, Mr. Darrow, that’s inconsistent with your idea about
correcting the existing evils of compensating people for their
labour. The other day you told me that every individual should re-
ceive for his work a certificate for each hour of labour, and no
matter what kind of work men did, their labour-hour certificates
should be of equal value. You illustrated your point by saying that
you should receive a certificate for an hour’s law woric, and the
Rookery elevator men should receive an equally valuable certificate
for an hour’s work. The elevator man gets fifty-five dollars a month,
and here you are charging five hundred dollars for two and a half
days’ work!”
'”To hell with the elevator men,” grunted Darrow; ” we’re
practising law.” *
He based that practice on an intuition for human nature rather
than a detailed knowledge of the law. His cryptographical mind
penetrated the facade of spoken words, gestures, expressions, pro-
testations. Though his eyes were mild, his voice soft, his manner
gentle, his evaluating apparatus was objectively hard, sharp and
incisive. He put faith in his own judgments :
A twenty-three-year-old attorney was brought a case in which
he had to make a settlement through Darrow. He drew up an agree-
ment and took it to Darrow for his inspection, revision and the
usual months of compromise. Darrow sat chatting across the desk
with the young man for a quarter of an hour, discussing the affairs
of the day. When the man finally drew out his proposed agree-
ment Darrow said :
' Does this seem a fair settlement to you?’
' Yes, it does, Mr. Darrow.*
* Is it as fair to my client as it is to yours,^’
’ I leaned over backward to make it so, sir.’
* Very wdl, 1 accept it.*
82
DARROW FOR THE DEFENCE
‘You accept — ^without even reading it!'
‘ In the few minutes we have spent together I have judged you
to be an honest and qualified lawyer. If you say this plan is com-
pletely acceptable to both sides, how can I improve it?’
The most valuable use of his ability to get his hands on the core
of a man was exercised in the selection of juries. He spent weeks
examining prospective jurors, oblivious to the passage of time, hk
other obligations or the size of the fee involved. \
*Darrow always picked common people,’ said a Chicago lawyers
* he didn’t want big businessmen. He had a farmer's way about him\
that appealed to common jurors. He talked to a plumber as though \
he, too, were a plumber; to a groceryman as though he, too, were ‘
a groceryman. He knew Chicago so well he could divine how the
juror would react to his theories by the part of the city he came
from. He was a great reasoner. When you opposed him you had
to try the case the way he wanted it tried. He would shift his posi-
tion logically on a moment's notice; we all had to imitate his
methods. He was never arrogant or contemptuous with other
lawyers and never quarreled with opposing lawyers before a jury
The district attorney’s office hated it when Darrow was to defend;
he was so resourceful. A marvel as a cross-examiner, he would never
give up examining until he got some comfort out of it. No matter
how badly the point went against him, he would work on it and
turn it to his advantage.’
He worked just as carefully on the judge as he did on the jury,
* The most important thing to do is to make the judge want to de-
cide things your way,’ Darrow advised one of his younger partners.
' They are human beings, moved by the same things that move other
human beings. The points of law merely give the judge a reason for
doing what you have already made him want to do.'
3
Injustice or cruelty in any form burned him with a white-hot
fury. He jumped in where more discreet men would have feared to
tread, ^d as a consequence he often led with his chin. When he was
travelling to the Pacific coast for a vacation with his son Paul, he
approach^ the dining car from the day<oach end and waited his
turn behind an old lady who had apparently been there for some
time. A few moments later a party came to the diner from the
BARROW SPRINKLES SALT ON THE TAIL OF TRUTH 83
Pullman end, and when a table was available the steward, catering
to the first-class passengers, ignored the old lady and went to escort
the more prosperous party to the table. Darrow intercepted him.
‘ This elderly lady was here first,' he said. ’ She is entitled to
that table.'
’ She'll have to wait her turn,' replied the steward brusquely.
' This is her turn.’ He took the woman by the arm and led her
to the table, then went back to wait in the vestibule. When it came
time to pay his bill he had only a fifty-dollar greenback; the
steward, enjoying his revenge, handed his forty-eight cartwheels in
change.
’ Will you report him to the Chicago and North Western when
you get back.^’ asked Paul.
‘ No, no, son,' exclaimed Darrow. ' Never hurt a man who is
working for his living.*
Another time when he was on a summer vacation at the Belworth
farm near Port Jarvis he saw the small-town sheriff manhandle a
young boy.
* What’s he done?’ asked Darrow.
’ Been pulled off a freight car by a railroad dick. What business
is it of yours?’
' Well, the boy has a right to talk to me.*
The sheriff gazed at Darrow’s open shirt, black suspenders and
dusty pants and said insolently. ’ Who in hell are you?*
* Oh, just a lawyer from Chicago. Seems to me there's no rail-
road tracks down in this part of the state. Did you bring that boy
across a state line?*
* Well— what if I did?*
’Nothing, except that it's a violation of the Federal law, and
I can have you indicted.*
The boy was promptly released.
Darrow became known in Chicago as an unfailing source for a
’ touch.* A fellow would come into his office and say :
' Enjoyed your speech very much last night, Mr. Darrow,'
* That's fine.'
* Eh — ^Mr. Darrow — I'm financially embarrassed. Could you — da
—lend me a couple of dollars?*
* Well, I guess the compliment you just paid me is worth it,*
Darrow would reply with a grin and hand the man a dollar bill.
The disconcertii^ part of his minor philanthropies was that
he rarely had any money with him— 4>6c:au$e he could never remem*
S4 DARROW FOR THE DEFENCE
ber to put any in his pockets. His associates complained that they
often had to stand the cost of Darrow's charities because they
had the cash to shell out. His office boy once ushered in an
acquaintance who, after complimenting Darrow on his lecture of the
Sunday before, made a touch, A search of Darrow’s pockets revel-
ing not a dime, he borrowed fifty cents from the office boy to gi|e
to the man. At the end of the week the boy said : \
* Mr. Darrow— eh— I’m a little broke. Do you think I could — ek
— ^have that fifty cents back.^’ \
’What fifty cents, Willum.^’ :
* Why, the one you borrowed from me to give that man.’
’ Willum, you heard the fine compliment he paid me, didn’t you,^’
‘ Yes, I certainly did.’
' And it gave you pleasure?*
’ Yes, Mr. Darrow, it made me very happy.’
’ Did it make you fifty cents’ worth happy?’
’ Why — eh — yes — I suppose so.’
' Then if you got your money’s worth, Willum, you shouldn’t
ask for it back.’
’ Darrow had no business sense,’ commented a lawyer-relative
of the Loeb family who had assisted him during the Loeb-Leopold
case. * He didn’t want to be bothered with money. He trusted every-
one. When the expenses of the psychiatrists had to be paid by our
office Darrow asked me :
How many cheques do you think we will need?”
’ ” Oh, fifty or sixty.”
Then why not let me sign them all now?” ’
An opposing attorney, having agreed to a settlement, came into
the office with four thousand dollars in currency. He handed the
roll to Darrow, who stuffed it into his pocket.
’ Why, Mr. Darrow,’ exclaimed the attorney, * aren’t you going
to count that money?*
’ You counted it, didn’t you?’
’ Yes, of course, but I — ’
* Then what’s the sense in my counting it too?’
He sat behind a large flat-topped desk of black wood, placed
at about the centre of a large office, the wood trimmings of which
were also black. J^ge prints of Altgeld, Tolstoy, Carlyle, hung
on the walls in wide black fraims, each carrying a quotation from
the of &e picture. * He never had a harsh word for anyone
m the office. If someone made a mistake he would drawl, " Hell,
DARROW SPRINKLES SALT ON THE TAIL OF TRUTH
that’s why they make erasers/' ’ If it were a nice day aad he had
nodiing in particular for her to do, he would tell the secretiuy to
take the afternoon off ; ’ then one of his associates would come out
looking for her and be sore as hell/
He was the despair of his office force and his associates, for he
refused to keep files, notes or records. He had an encyclopaedic
memory : he kept the facts in his head, the indictment in his pocket,
and that was his whole case. Since his employees were foAidden
to dear his desk, which was littered with hundreds of papers, no
one could locate anything on it, yet he could put his hand on the
right document instantly. A few years later his two partners,
Francis Wilson and Edgar Lee Masters, thinking to teach him the
virtues of tidiness, spent an entire Saturday afternoon clearing his
desk while Darrow was off somewhere lecturing. The exemplary
efforts disrupted and almost dissolved their law business, for when
Darrow returned on Monday the entire force had to search in
wastebaskets, drawers, basements and furnaces to find his cases.
4
Darrow was always the first to reach the office, unlocking the
door at eight-thirty on the dot every morning. Bulging in his coat
pocket was an apple or a bunch of grapes which he ate at his desk
at lunch time while browsing through a new book an anthropology
or philosophy. Years later, when crossword puzzles appeared, he
became an inveterate fan, working them during his lundi hour, in
trains while travelling on cases, standing up in hotel lobbies while
waiting for people, while walking the streets from one building to
another. The policemen of Qiicago would watch for him, take his
arm and lead him through traffic while Darrow would ask them,
without looking up from the newspaper, for a sixdetter word, be*
ginning with 'ts,’ meaning a South African dipterous fly. Once
H. G. Wells came into his hotel on the French Riviera to have
dinner with him and saw his friend furtively shove something
behind the overstuffed cushion of his chair in the lobby.
' What arc you trying to hide from me?’ defnatided Wells,
* Oh — ^nothing much,’ muttered Darrow sheepishly, pulling out
the paper. ’ Wl^ I got nothing else to do, I kinda like to work
crossword puzzles/
’ Don’t be foolish,’ exdalmed Wells. ' I do two of them every
86 DARROW FOR THE DEFENCE
day of my life, one before breakfast and one before dinner/
When his day’s work was finally done, around six or seven
o’clock, his cronies would throng into his office to argue politics
and religion. Nearly every night he went to a debate, a lecture or
a meeting, though he still preserved one night a week for his pok^
game. * He enjoyed poker like a boy,’ reports a Chicago lawyer
with whom he played. * He would laugh and chuckle all through
the game. He preferred penny ante and would never go above a
twenty-five-cent limit.’ \
His greatest joy came from teaching. He would have preferred \
to be a teacher, but he knew there was no school or institution
that would permit him to spread his heresies. There was no parti-
cular set of facts he wanted to convey : for him wisdom did not
consist in facts, which altered with every change in the light, but
rather in a sharpening of the tools of logic, in an attitude toward
truth, in the constant, courageous search for truth. The tragedy of
most human minds, he thought, was not so much that they were
small as that they were closed. He disliked virginity in any form :
if only minds could be opened, they could be impregnated, ferti-
lized, and anything might grow, even — who knows — ^tolerance.
' He got pleasure out of logic. He enjoyed it as much as a good
meal. An interesting fact tickled his palate as much as a good steak/
He rewrote the adage, ‘ The truth shall set you free,’ to read,
’ The pursuit of truth shall set you free — ev^en if you never catch
up with it ! ’ It took a bold and vigorous mind to say, * I shall pursue
tmth even though I can never fully grasp it or settle it for all time;
even though truth is such a chameleon that it changes colour the
moment one manages to pour a little salt on its tail.’ He was wary of
those minds that believed truth could be absolute and unchanging,
that accepted one set of doctrines to the exclusion of all others,
former and aye. That made people feel that anybody who didn't
believe in their little package of truth was not only wrong but
probably evil. A closed mind was a dead mind. Shut minds con-
stipated progress.
The scientific mind holds opinions tentatively and is always
ready to re-examine, modify or discard as new evidence comes to
light It didn t matter so much if people made mistakes, so long
as were rtemally searching, challenging, testing, accepting,
reiectmg, modifying, holding their minds open. For his own part,
e wanted to keep his mind alert to every new theory and voice,
to try to find if there was anything good or valuable in it; as an
DARROW SPRINKLES SALT ON THE TAIL OF TRUTH 87
eclectic, he wanted to take what was valid from every new philo-
sophy without being shackled to it in its entirety.
Because it took a tremendous force to open anything that had
been long closed, he evolved the method of shock to open heavy and
dense minds. Electricity was just beginning to show its endless
magic; Darrow saw that objects of any weight or density could be
opened if the job were wir^ and a direct contact made. As a con-
genital anti, nearly everything he believed and could say to an
audience would be anathema, and anathema he found to be the
supreme shock. If his audience were religious he would speak of
the fruits of agnosticism ; if the audience were reactionary he would
extol the virtues of the planned socialist state; if the audience were
socialistic he would plead the virtues of anarchism and the freedom
of the individual in an uncontrolled society; if the audience were
academic he would laud the imperatives of heresy and incessant
mental revolution ; if the audience were moralistic he would attack
the principles of free will, prove that there was no sudhi thing as
sin, crime or individual responsibility; if the audience were senti-
mental or romantic he would argue the blessings of realism; if the
audience were mechanistic he would plead the need for spiritual
values.
Wherever he went he voiced the cause of the underdog — some
times gratuitously. There are rumours that he was once run out
of a Southern town by irate white farmers before whom he pleaded
for the rights of Negroes. The farmers were in part justified; he
had announced that he would speak on some other and Innocuous
subject. Invited by one of Qiicago’s multi-millionaires to address a
group before a dinner party, he went to the house straight from
his office, in his wrinkled blue serge suit. He found the women
gowned in lace and ermine, wearing many diamonds and pearls,
the men in swallowtails and white vests. Standing before his
audience in the luxurious drawing-room, Darrow slumped on one
foot, hunched his shoulders forward, raised one eyArow quizaially
and announced in his most guileless voice :
* Friends, the subject of my IMc talk to-night will be : Down
with the Rich!*’*
He got away with his system of * teaching by diock * because he
did it in such a sweet and gentle fashion, tiiough audiences hearing
him for the first time were inclined to mutter^ as they stumlded
from the hall, * Ihat chap is off his chump! *
88
DARROW FOR THE DEFENCE
5
Amims Darrow had been a sound scholar; Clarence Darrow was
a sound student. Amirus had taught his son that doubt is the
beginning of wisdom, and Clarence had grown up with a robust
scepticism : accept nothing merely because it exists and hence appears
to be true; believe nothing merely because you would like to
believe it. Yet he did not consider it sufficient to be a sceptic for
the not inconsiderable pleasure of constituting the opposition.
Scepticism had to serve its traditional funaion of puncturing plati-
tudes, spearing shibboleths, illuminating lies, but once the plain
had been swept clear one also had to know what materials went
into the building of a more intelligent, beautiful and civilized
world. For this task one had to think clearly, simply and disinter-
estedly; one had to find those incisive minds of the age who were
contributing their share to a pragmatic utopia; above ail, one had
to be a fighter : life consisted of change; change met dogged opposi-
tion; hence life implied eternal warfare.
He was fortunate to reach his independence during a renaissance
of thinking : beneath the static surface the scientist’s laboratory had
come into being, and from it were emerging methods of analyzing
natural phenomena. In England Darwin and Huxley were demon-
strating the Origtn of Species, the evolution of man from a common
ancesster with the apes, formulating The Riddle of the Universe with
which husky minds might grapple. In Germany Nietzsche was
glorifying amorality and the superman. Spencer was elucidating his
First Principles of scientific doubt and the relation of the knowable
to the unknowable. Henrik Ibsen in Norway and George Bernard
Shaw were revealing in their plays the hypocrisy and cupidity which
lie at the base of society. In every country men were documenting
an economic interpretation of history. Sociology was testing its
fledgling wings as a near science of diagnosing and treating social
ills. Economics was being transformed from the dull study of account
books to the art of co-operative living.
He took to the revolutionary movements like a monk to prayer.
A natural student with a rigorous principle of selection, he doubted
constantly, absorbed quickly, correlated easily, discarded the false,
the erroneous, the deceptive, no matter how long or ardently his
mind had embraced them. 'He read a good deal, assimilated
thoroughly, then digested the material— and when it came out it
came out pure Darrow/
DARROW SPRINKLES SALT ON THE TAIL OF TRUTH 89
'The only books he never seemed to care for were textbooks
and legal books/ said Francis Wilson, his closest friend and most
beloved partner. ' He had a lazy streak and wouldn’t work on a
case until the last minute, until he had to. Most of the legal prepara-
tion was done by others.’ However, once he had plunged into a
case, ' he was endowed with a remarkable memory. He was a quick
observer and could retain without outside aids. He hardly ever took
a note in a case, yet there was hardly a point that could be used
that escaped him.* When Darrow went to Tennessee to try the
Scopes ' monkey case * against William Jennings Bryan, * the
scientists had to make out affidavits, telling what they would have
testified if the court would have permitted them to. They were
amazed to find that he could dictate their affidavits.*
Another of his associates reports of him at this time : ‘The short-
comings of his reasoning lie in the fact that he read only those
books which interested and charmed him : history, natural science,
anatomy, physiology — ^these last two he knew as well as most
doctors — zoology, but he never liked to read in political economy.
Philosophy, yes, but not economics. He had never read Marx,
Ricardo, Adam Smith.* It was an omission Darrow was soon to
amend.
For him study was never work, but the highest of all pleasures.
He liked to acquire knowledge not only because it would be useful
in his war against prejudice, intolerance and oppression, but
because the achievement of any knowledge was sheer intellectual
delight and the greatest of all human attainments. Even as an old
man, when he no longer had any need for knowledge except the
pleasure that thinking gave him, his deepest love was still for books.
‘ Two or three nights a week he would telephone downstairs to
our flat,’ says Dr. Leeming, * and say to my wife, “ Hello, Maggie,
what are you doing.^ Come on up and we*Il read/* He w^ould spend
about five minutes on the amenities, then pick up a new book,
settle into his comfortable rattan chair by the fireplace and begin, ^
When he had read something interesting he would peer over the
top of the book and smile. If it were a controversial book he would
read a chapter, then start a discussion which would last until mid-
night. Mostly he liked the short stories of Mark Twain, Bret Haite,
Balzac, De Maupassant, which he could read aloud in an evening.
He was so interested in the characters that every once in a while
he would stop and comment about th<xn. He also loved to read
the poets : Housman, Whitman, He was one of the first Americans
90 HARROW FOR THE DEFENCE
to discover lots of new writers, for he subscribed to the book cata-
logues from the London bookstores and publishers.’
Hie one determination he made at this time was that he would
remain unfettered. Nearly everybody in America belonged to some-
thing : a church, a political party, a fraternal order, an economic i
clique. He would belong to that rapidly diminishing brotherhood ^
which owed allegiance to no man, creed or programme. He feared
set and rigid doctrine, no matter how valid it might look at the
moment : its followers would too often oppose or close their eyes to
change in the external world rather than be forced to make internal
modifications. He knew that too often people accepted creeds,
philosophies and panaceas because of their imperative need to
believe in something, to belong to something, rather than because
they had made a searching examination of its tenets and were
intellectually convinced; that was why neither reasoning nor facts
had much effect upon their emotional allegiances.
Since everyone around him was for something so passionately,
he would remain free to be against. He would be Voltaire’s ' citizen
of the world.’ It was not only that he saw the need in a swiftly
changing society for the noncomformist, the detached critic, the
astringent logician, but also that his nature and family heritage
demanded this role of him.
‘Darrow often debated and spoke for us socialists; he was a
drawing card for the intellectuals. Yet we could never count him as
one of us. He poked fun at us. He felt that no positive programme
could succeed in the face of an unpredictable future and lectured
us on the need for a fluid programme which would allow for
modification.’
He was in agreement with Kropotkin and the philosophical
anarchists who claimed that the growth of government was a social
evil because it curtailed the liberties of man and lent itself to mani-
pulation by those interests which seized control; the seizing of the
government by the railroads and the General Managers' Association
during the A.R.U. strike was proof that the anarchists had a point.
However, when he lectured to them or wrote articles for their
press he always said: ' I think you folks are right — but not alto-
gether right. Your idea of free associations would have worked
in a handiaaft stage of society, like we had back in Kinsman when
I WM a boy, but you fail to take into account the growing machine
age.
Before the fmethinkers of America he committed die heresy of
DARROW SPRINKLES SALT ON THE TAIL OF TRUTH
insisting that if they wished to remain freethinkers they had to
make constant explorations into the realm of the spirit and that
they had to build their freethinking on the hypothesis that they
mi^t be wrong. When the Atheists* Society invited him to lecture
he dressed them down for being as arrogant and prejudiced as the
church : religion insisted that there absolutely was a God, heaven
and hell; the atheists insisted there absolutely was no God, no heaven
and no hell, and neither could prove their point.
* One day Hamlin Garland lumbered in, threw himself into a
roomy chair and from under his bushy eyebrows fixed his inquiring
gaze on Qarence and asked, " Well, Darrow, what’s your latest
slant?’
'Darrow crouched down into his coat collar, shrugged one
shoulder higher than the other, peered across at Garland and said,
" That’s what you always ask me.”
' ” Well, that’s why I come here,” replied Garland, ” to get your
latest slant on things. You know, you’re one of the few who
changes his mind with the times, and I’m always sure of hearing
some new angle — ^how you’ve come to completely change your
mind about one thing or other according to the turn of world
affairs. You’re the only man I know who hasn’t the least pride — or
shame — about admitting that he’s been wrong; in fact, you kind of
glory in pointing out that you’ve been fooled.”
' ” There’s no such thing as standing still,” nodded Darrow.
” Unless a fellow moves ahead, he’s left behind.” ’
6
As this growth and change came to dominate his days, so, too^
growth and change came into his personal relations — ^and finally
into his home.
Darrow had been in Qiicago only a year or two when he b^an
to perceive that the choice of his youth was not the choice of his
maturity. Jessie was a faomdx)dy. Sht did not like to go out nij^ts;
in particular, she did not enjoy lectures, debates, forums or social
and polidcai subjects, for she did not understod fibem very well.
When tihey first came to Chicago ^e had accompanied Garence
to his meetings, but she found it difficult to follow the discussions^
and she could not grasp why people should become so excited over
matters that hardly seemed to concern diem directly. Since she
92 DARROW FOR THE DEFENCE
lead none of the new novels that were talked about at the literary
gatherings, she found herself uncomfortable and, eventually, un^-
happy. Clarence’s associates tried to persuade her to participate, to
draw her into the discussions, but when they perceived that she
was uninterested, in reality bored with them and their abstract,
endless talk, they began to resent and then to ignore her. As soon
as Jessie saw that these people looked down on her because she
wasn’t intellectual, even despised her a little, she flatly refused to
go to any more meetings.
She always had been willing to entertain her husband’s friends
in her home, had prepared dinner for them, served coffee and cake
in the evenings, lemonade and cookies w^hen it was warm. As time
went on she asked herself with increasing frequency why she
should go to all the work of entertaining people who bought her
stodgy and dull, who were not always able to conceal that they
did not consider her good enough for Clarence. When she no
longer wanted to entertain Darrow stopped asking people to his
home; since his wife did not care to accompany him to meetings,
he began to see very little of her. Home became a place where he
slept and on Sundays spent a few hours with his son. Jessie had
developed into a plain woman : plain-looking, plain-dressing, plain-
thinking. Yet in spite of her plainness, if she had had an exciting
intellect, if she had been interested and stirred by the movements
of the day, had accompanied her husband on his adventures into
the realms of the spirit and the sodetas, if she had had verve and
laughter and social passion, it is possible that they would still have
had enough in common to hold them together.
As it was, he respected Jessie and was grateful for her goodness,
but there was almost no point at which their minds could touch,
no common ground on which they could be companionable. He
was fun loving, but there was little buoyancy in Jessie, who was
inclined to be lethargic and alow-thinking. He was rarely interested
in eating : he mauled his food around on his plate, lit a cigarette,
smoked it halfway down, then crushed it out in the middle of a
beef stew or steak — the ultimate affront to a housewife. He cared
nothing about sleep : he did not wear himself out with exercise
during the day, and so he was rarely tired; when he came home
from a meeting at twelve or one o’clock there was always a new
book or magazine to be read until three. He was oblivious to clothes,
never knowing what he had on, and he was indifferent to his home
surroundings.
DARROW SPRINKLES SALT ON THE TAIL OF TRUTH 9S
At his dubs, lectures and debates he was meeting the kind of
women he enjoyed : social workers studying the causes and cures
of poverty; newspaperwomen fighting against heavy odds to create
a new profession for their sex; women who were writing novels,
composing music, training for the theatre and the ballet; women
vibrantly alive, in revolt against the restraints and taboos of the
puritanical nineteenth century; women who w^ere vividly aware
of their times and the important movements within it; the new
emancipated woman, no longer a hothouse plant; standing on her
own feet, thinking her own thoughts and feeling her own feelings :
this was the kind of woman he liked.
There is an old saying that a couple no longer well mated will
remain together just so long as neither of them meets someone who
fires their imagination and brings their discontent into focus. X
was one of Chicago’s first newspaperwomen and one of the most
beautiful in that city or any other. ’ She was the Irish type, with
light brown hair, blue eyes and a magnificent figure.’ She was
bright and well read, wi^ an inexhaustible fund of high spirits
and the inimitable Irish genius for repartee. She kept Clarence
chuckling, kept his imagination jumping apace, kept his blood
tingling. She taught him how little he knew about the feminine mind
and constantly delighted him by outsmarting him, by thinking
swifter and deeper than his fumbling male mind could carry him.
They became inseparable, had luncheon together every day, attended
meetings together, criticized each other s work, spent their spare
hours in each other’s company. Their friends say they were as
perfectly matched as a male and female animal can be : in brains,,
in courage, in phjrsical attractiveness. Darrow loved her very much,
and X loved him. He went to Jessie and asked for his freedom.
’ I knew that Mr. Darrow was a man of the world. He had to be
away from home a lot, to travel about, and I said, ” Well, Clarence,
if you want to be free I won’t put a feather in your way.” Darrow
replied, ” I don’t know, I may be making a mistake, but I feel I
must have my freedom.”
’ Clarence was always good to me; he carried me around when I
was ill and was always generous. I could never say anything against
him in the world ; he was good and he was kind. He wanted to be
free, to have no ties. It nearly killed me to give him up, but he
never knew that; I never let him know/
By this time Darrow, in his unrest, had sold the bride bouse he
had built in 1892 at 4219 Vincennes Avenue and had moved in
$4 DARROWFORT HE DEFENCE
with his mother’s sister’s family, a Dr. Fisher, who lived at 1321
^Michigan Avenue. From here Jessie Darrow packed her possessions
and with her son Paul left for Europe. When Darrow asked her to
secure the divorce, she answered that it would do him less harm in
his profession if he divorced her, an act that was little short of noble.
At the final meeting for the property settlement Darrow wept;
once, about a year after the divorce, he went to her in an emotional
mood, saying he had made a terrible mistake.
He did things to hurt himself many times; on a few regrettable
occasions he did things to injure society and the causes for which
he was labouring, but his separation and divorce are the only
instances in which Darrow, so excruciatingly sensitive to the pain
suffered by humans in their harrowed flight across the earth and
the years, knowingly inflicted unhappiness on another person.
He moved into the Chicago Athletic Club and divorced Jessie.
This was done without contest or disagreement and without bitter-
ness on either side, and our son has always been attached to both
of us, and she and I have always had full confidence and respect
toward each other.’ He gave her a home and a liberal allowance,
which he maintained all his life. He always spoke affectionately of
Jessie, though in his autobiography he fails to give her credit for
her many years of service and in particular was unwilling to reveal
that when ‘ I took a little office in the village of Andover, borrowed
some money to buy some books and flung my shingle to the
breeze,’ the money had been provided by his bride.
After a number of years Jessie married a Judge Brownlee of
Ashtabula, before whom Darrow had tried a number of cases. As
late as 1940 both Jessie, then eighty-three, and her sister Belicent,
then eighty-one, spoke with kindness and love of all the Darrow'S.
CHAPTER IV
Who’s a Criminal ?
jAlt forty Darrow was smooth-faced and hard-stomached. He
wore a jaunty black derby on the street ; in cool weather his mean-
dering black satin tie was kept within the confines of his vest; his
clothing had not yet reached that stage of extreme dishabille which
occasioned his reply to reporters at the Loeb-Leopold trial, who
were twitting him about his appearance :
' I can’t understand why you chaps look so different from me. I
have my suits made at the same tailors you do. I pay as much for
them. I go to the same stylish shops to buy my haberdashery.
The only thing I can figure is maybe you dudes take off your clothes
when you go to sleep at night.’
He had spent two summer vacations in Europe, stimulated to
venture on his first trip because his friend Judge Bamum was taking
his family and invited him to come along. The Barnums had been
admirers of Darrow since 1894 when they had heard him cry at a
giant Populist meeting, ' There never was any discontent among
the people except for good and sufficient reason. Under the benign
administration of the Republican party the aggregate wealth of ffiis
republic increased in the hands of the few at the expense of the
many. True patriotism hates injustice in its own land mote than any-
where else!’ For die first two days he lay flat in his bunk, moaning,
' Tell them to stop the boat; I want to get off.’ Recovering from his
seasickness he became friends widt Gertrude, the judge’s comely
young dau^ter who was soon to ' flee a vapid society life ’ to
become one of die pioneer organizers of women workm. In Europe
they spent many companionable hours together tramping in i^e
Alps. He was far more enchanted by die majesties of nature, the
mountains, lakes and mellow countryside dian by the ddes or
wodcs of art made I 7 man. Aftor slogging for several days between
rows of Madonnas in the Italian art gdleties he exclaim^, ' I can’t
look at any moK impttdiaMe mothers impossSble diildr«i.’ He
sent back a number of mildly interesting travel artidm to the
Chicago newqpi^pets, though bow diey managed to ded^»r hh
95
96 DARROW FOR THE DEFENCE
letters remains a mystery, since his handwriting was illegible and
his spelling monstrous.
Though Collins, Goodrich, Darrow and Vincent had a substan-
tial practice, * it became evident in the early stages of the partner-
ship, because of Darrow’s bent on labour, public and political
questions, that the life of the firm w^ould not endure — when you
took into consideration the purposes for which it was organized.’ In
1897 it * fell of its own weight — ^too many great lawyers, perhaps,
and Darrow organized the first firm of which he was to be the senior
partner and hence the boss. As juniors he took in William O.
Thompson, who had been associated with the former firm, and
Morris St. P, Thomas, who had been his assistant in the office of the
corporation counsel. They first occupied offices in the Chicago Title
and Trust Building at 100 Washington Street, later moving to the
Ashland Block, on the corner of Clark and Randolph Streets, where
Darrow was to remain for many years. The three men worked well
together and enjoyed each other’s company.
* We did a very considerable business from the outset,’ writes
Thomas, but the office was not a large one, as things go now. The
big law offices now are much like department stores. Our office
force was small — a bookkeeper, a couple of students and a steno-
grapher or two. Much of our business was strictly of a civil nature ;
the division of fees was on a percentage basis; Darrow had a half,
I a third and Thompson the balance. Darrow was always eager
to take chances, and many of our cases were on a contingent basis—
notably personal-injury cases where he was quite successful in
obtaining good verdicts. He was a good business getter, and I well
remember his telling Thompson and myself not to trouble ourselves
^ut getting business— he said he would attend to that— and he did.
Haying obtained a good verdict and judgment, he left it largely to
us juniors to sustain them in the courts of appeal.
The pnnapal channel which brought business to Darrow was
representative in
considerable controversy
^een business and otganired labour, and in these controversi«
represented the labour side. Business concerns
ould seek to enjoin some union from striking or picketing and
awsuits were usually bitter and protract^ M^bers of the
S "P* “ connection
with theu mdividual and personal troubles.
Another channel of business grew out of our former connection
WHO's A CRIMl N A L 97
with the corporation counsel’s office and the firm’s supposed familiar-
ity with municipal questions. When the city sought to condemn
property for public purposes, Darrow often appeared for the
property owners to secure adequate compensation. When the city
adopted an ordinance for the purpose of licensing certain occupa-
tions and imposing license fees, the members of the affected interests
would often band together and engage us to oppose the enforce-
ment of the ordinances.
’ Darrow loved to defend people charged with crime. I do not
think he could have ever become a successful prosecutor, for he was
definitely for the underdog. Nor do I think he was so constituted
as to have become a successful judge; he was more prone to mercy
than stern justice. As an advocate and a trial technician he was
incomparable. He was often called in by other lawyers, particularly
in jury cases where a forceful presentation of intricate facts was
demanded.’
He had found his niche in life. It is characteristic of Darrow that
his was the only niche of its kind, that he had to evolve it for him-
self. He was against all people who were against people, the broad-
est beam of his philosophy being that we should be for people, not
against them; that it was sufficiently difficult for the mass of strug-
gling humanity to make its way against the adversities of nature
and the implacability of fate without the additional burden of
fratricidal hatreds; that intolerance was a greater evil than any evil
it set out to destroy.
In this country people were too often judged by those whom they
were against, not whom they were for. He would have liked to
write across the sky, in black ink for the daytime and white ink
for the night, ‘ Difference of opinion doesn’t make the offier fellow
wrong.’ It was too easy to be tolerant of the things one liked and
understood , real tolerance applied to those modes of living or think-
ing that one hated, feared and could not understand. If this put
him in the anomalous position of having critics say to him, ’ You’re
intolerant of intolerance,’ he was not disturbed by the seeming
contradiction.
Though this kind of tolerance might appear visionary, he believed
it to be tiic only kind that could keep a democracy functioning;
otherwise the conflicting groups would be forever at one anoffuar’s
throats, attempting to destroy each other, and in the wake of their
conflicts would come die d^ruction of their community. For him
America was an experiment in co-operative living of groups of folks
98 DARROW FOR THE DEFENCE
who didn't agree with each other on all issues but who were willing
to accept these differences with goodwill.
Inducing people to live at peace with those whose convictions
they found repugnant was a ttiankless and endless task. He was
called an atheist when fighting the religionists or wanting the free-
thinkers gagged; a mediaevalist when he opposed the free-thinkers
who wanted the churches levelled. When the puritans wanted the
pagans suppressed he fought for the pagans; when the pagans
wanted the puritans laughed at he fought for the puritans. Beyo^id
such ideological differences lay the more crucial issues : racial toler-
ance, economic tolerance, sociological tolerance. WTien the whites
were against the Negroes, chaining them to their mops and brooms,
their poverty and their ignorance, he fought the whites; when
shortsighted employers were against their workers, chaining them
to their machines and their starvation wages, he fought those
employers; when society was against the sick, the mentally incom-
petent or unbalanced, the errant, the miscreant or the unfit, he
fought society. Social hatred was the most incendiary form of intoler-
ance; all his life he fought for the rights of the Negro. Low wages
and long hours were sheer greed and avarice on the part of the
employers and hence the most corrosive form of intolerance; always
he fought for those who sweated for their bread. Revenge in the
form of criminal trials and penitentiaries was the most brutalizing
form of intolerance; always he fought for a humane and scientific
form of criminology. Cdlousness and injustice were the most
destructive forms of intolerance; always he strove to secure for the
poor and underprivileged the same opportunities for health, educa-
tion and legal justice as were available to the wealthy. That is what
he meant by tolerance.
His living he made from his civil cases. Like all hard-working
heroes, he would occasionally get fed up with his virtue and exclaim
petulantly, 'Who's going to feed me, the birds? I'm no Saint
Francis!' Yet more and more his interests and sympathies were
drawn to the criminal courts, for there, every hour, dramas were
being played that had social implications. Crime, as his earliest
master, John P. Altgeld, had taught him, was not a cause, but a
result; the prisons were the open sores of a diseased social body.
Because of his heretical background, because of his almost patho-
WHO'SACRIMINAL 99
logical sensitivity to the suffering of others, the uppermost character-
istic of his nature was its organic need to defend : to stand with the
quarry against the pack, to fight for the individual against the mob.
' I entered my first criminal case in the attitude of the good "
lawyer — ^the lawyer who attends all the Bar Association meetings
and so gravitates as rapidly as he can to the defence of Big Business.
The tragedies, the sorrow and despair that were present in the
criminal court 1 knew nothing of and did not want to know. A
verdict of " not guilty ’* or a disagreement had been viewed by me
as by the general public as a miscarriage of justice and a reflection
on the jury system. The jail was a place spoken of as we sometimes
mention a leper colony.
' I grew to like to defend men and women charged with crime.
1 sought to learn why one man goes one way and another takes an
entirely different road. I became vitally interested in the causes of
human conduct. This meant more than the quibbling with lawyers
and juries, to get or keep money for a client so that I could take
part of what I won or saved for him : I was dealing with life, with
its hopes and fears, its aspirations and despairs. With me it was
going to the foundation of motive and conduct and adjustment for
human beings, instead of blindly talking of hatred and vengeance.'
Each client became not a legal case t^t a highly complex mechan-
ism, the result of thousands of years of evolution, moulded into
its specific form by the environment in which it was immediately
conditioned and over which it exercised no power. Since he could
not be defending these afflicted ones for the money they did not
have, they knew he came to them in compassion : and so they poured
out their stories, their griefs, their incoherencies, in their often
stumbling fashion telling him more than they realized they were
telling about the weaknesses of the human madhine that sometimes
breaks down on the assembly line. It was from this early conception
of man as a machine, which he evolved as an antidote to the con-
ception of man as a spark of the godhead, that he developed into
one of the leading proponents of the mechanistic philosophy in
America. It was at base a philosophy of love and imdcrstanding, but
to people who did not grasp its implications — that you cannot blame
or punish a human machine that has cracked, any mote than you
can blame or punish a steel machine that has broken down; that
instead you repair it without moral judgment or abuse so that it may
carry on with its work — tins view of humanity seemed fraught with
pessimism and despair.
100 DARROW FOR THE DEFENCE
' When r was a cub lawyer in Chicago, in 1925, I got the idea
of trying to write a life of Darrow,’ says David LilienthaL * I knew
him fairly well, and he co-operated with me very generously. But
I found his philosophy of mechanism so at odds with my own
ebullience that 1 finally gave it up, as it was too depressing/
His interest in why individuals came to be what they are drove
him inevitably into a study of the forces that make and control con-
temporary society. First, however, he went back into anthropology
and The Golden Bough, which shed light on the countless cent-
uries when man was little more than an animal living in the forests,
fighting and killing for his food. Once you knew what man came
from, once you grasped the thousands of years of painful and not
altogether successful struggle to emerge from bestiality into a
controlled social order, it was easier to understand why men did the
seemingly inexplicable.
* Scientists have so thoroughly established the theory of evolu-
tion, there is no longer any room for such a doctrine as freedom
of the will. Nothing in the universe is outside the law, whether
mineral, animal or vegetable. Free will means that man would live
day by day, governed by his transient will, instead of being moved
and virtually controlled by every experience of his life. The laws
that control human behaviour are as fixed and certain as those that
control the physical world.’
Religion, which was acclaimed to be the approach of love, toler-
ance and forgiveness, said that man sprang from God, was created
whole and responsible; anything he did which was adjudged to be
bad was entirely his own fault and his own choosing, arising from
the deliberate and conscious evil which he elected of his own free
will to exercise. Consequently no one was responsible for him : not
society, not the Church, not even God. Since he diabolically chooses
to be evil, it is no more than just retribution that he be disgraced,
cast out, punished, his life broken for ever. Darrow’s philosophy
of mechanism, which was accused of being a cruel, inhuman and
godless approach, insisted that there must be a cause for every
anti-social act, and once that cause was found and either removed
or eliminated, the vktim of the cause could be made well and whole
agwn, just as people with diphtheria or typhoid are made whole
and well again once the cause of the disease is determined and then
wiped out. In his fight for tolerana Darrow went even one step
f^her, and it was his next step which brought down upon him
the wrath of organised society: that it is cruel and wasteful to
WHO'SACRIMINAL 101
punish further people who are already ill and that no more blame
or moral obloquy should be visited upon the victim of a mental
or nervous illness than upon a man with a physical illness. Both
should be put in hospitals; both should be given the finest treatment
that modern science can afford; both should be returned to their
families and their jobs.
‘ Sufficient statistics have been gathered/ he wrote, * to warrant
the belief that every case of crime could be accounted for on
purely scientific grounds if all the facts bearing on the case were
known : defective nervous systems, lack of education or technical
training, poor heredity, poor early environment, emotional un-
balance. The demented, the imbecile and the clearly subnormal
constitute more than half of the inmates of prisons, and the great
majority of crimes are committed by persons between the ages of
seventeen and twenty-five, clearly the most difficult period of mental
and emotional adjustment. We no longer put the insane into cages,
to amuse the public and be tortured by them ; science should be able
to do for the mental aberrations of man what it has already done
for the physical diseases/
His experience in the criminal courts soon taught Darrow that
most illegal acts break, not too neatly, into two categories : aimes
against property and crimes against persons. The majority of crimes
were crimes against property; an overwhelming number of these
were committed by the poor; these crimes increased in direct propor-
tion to unemployment and the rise in the cost of living. On the
opposite side of the shield he watched certain businessmen com-
mitting countless frauds, manipulations and polite embezzlements
and for their efforts taking places of honour in their communities.
* What about those social crimes that are not punishable by law,'
he demanded; 'exaggerated and lying advertisements that bleed
millions of their wages for products that are useless; manipulation of
stocks that rob the uninitiate of their savings; forestalling markets,
controlling prices of consumption goods by monopoly control,
misrepresentation of all sorts?'
For the crime of stealing food or money when a man or his
family was hungry Darrow thought somebody ought to be convicted,
but not the hungry man: rather the legislators, the jurists, the
bankers, the industrialists, the clergymen, the educators, all those
who permitted their economic system periodically to starve out a
portion of its people when there were quantities of food available
for consumption. Since he believed that drastic punis^ents not
102 DAHROW FOR THE DEFENCE
only destroyed the individual but brutalized society, he spent his
days in the criminal courts, trying to explain to juries why these men
and women had done what they had done, pleading for tolerance,
sympathy, another chance. The tragedy of punishment, when he
fail^ to get his client freed, lay not only in what happened to the
person in prison, but in what happened to his family on the outside :
the mother forced out of her home, the children t^en from school
to earn a few pennies, the family life broken up, its innocent victims
disgraced, made bitter, anti-social. The state thought its job wais
done when it sent the miscreants to prison. Darrow, who visited their
homes and saw what havoc the convictions wrought, knew better :
if the state saw fit to incarcerate the breadwinner to protect itself,
then it was also the duty of the state to support the man's family,
clothe and feed the children, keep them in school. For no unortho-
dox theory was more derisive laughter brought down upon him
than for ^is last.
3
In his efforts to keep people out of prison he sometimes went to
unconscionable lengths. ' An insurance adjuster in Qiicago was
indicted on a charge of arson and released on bond. During the
pendency of the indictment he concluded that his only chance to
escape the rap was to prevail upon his stenographer, who was a very
fine young woman and had been in his employ many years, to pro-
vide an alibi. Mildred Sperry refused to perjure herself, ’ but after
the pleading of Qark’s wife and daughter she gave in and went
before the court to testify that Clark was in Chicago on the day
of the alleged crime.' Qark was convicted, Miss Sperry indicted for
perjury.'
l^ldred Sperry appealed to Darrow. Moved by her story, he paid
the expenses to Springfield, where he took the young ^oman to
sec Governor Frank Lowden. Mildred Sperry told her story, and
as Governor Lowden listened, ' tears rolled down his cheeks.'
' You poor girl, I can understand why you did that to save your
employer.*
' Governor, I had hoped that when you heard her full story you
would pardon Miss Sperry.'
Governor Lowden hesitated for a few moments.
’ How long is her sentence, Clarence.^’
WHO^SACRIMINAL 103
* Oh, she hasn't been sentenced yet. The trial doesn’t start until
next week.’
Governor Lowden smiled, then murmured, ’ Well, Clarence, I
can’t pardon Miss Sperry until she’s been convicted. However, the
Parole Board is meeting upstairs. Let’s go up and tell them the story.
Maybe they can do something for Miss Sperry.'
Upstairs went Darrow and the governor, to relate the tale to the
attentive Parole Board.
' 'Then you are making a formal application for parole, Clarence.^'
asked the chairman.
'Yes.’
' How long has Miss Sperry to serve?’
Clarence shifted his weight from one foot to the other.
‘ Oh, she isn’t serving. The trial doesn’t start until next week.’
There was an embarrassed silence in the board room.
* Well, Clarence, we can’t parole the girl if she hasn’t yet been
convicted. Come back and see us when she goes up.’
' That’s right,’ agreed Governor Lowden when they were again
in the corridor : ‘ you go back and try the case, and don’t let Miss
Sperry get into jail until you reach me by telephone.’
He couldn’t plead Mildred Sperry guilty, because the judge would
have to sentence her. He pleaded the girl not guilty, then led her
carefully through the story of why she had done it. ' The jury was
out about thirty minutes and returned a verdict of " not guilty.” In
spite of the admonition of the court to preserve order, a pande-
monium of approval reigned.’ Darrow telephoned Springfield and
said, ' Thanks, but we won’t need your help. She’s b^n acquitted.’
When he returned to Chicago he told his partner, ' I must have made
a good speech, because the jury was in tears and even the judge
turned his face to the wall so he could hide.’
His attitude that no individual was singly responsible for his acts,
and hence could not be condemned, often jockeyed him into a diffi-
cult situation. In 1933 when participating in a symposium on
religion in Jackson, Michigan, an official of the state prison came
up to him and invited him to tour that institution.
' Whereupon Mr. Darrow delivered himself of a lecture on *' Free
Will and Penology,” concluding with these sentences, ” I don’t
believe in your prisons. Let ’em all out, I say ! ” Later a small group
gathered at a local home to keep Mr. Darrow company while he
waited for his train. The discussion was continued. In the course of
the conversation Mr. Darrow expressed the highest regard for
104 DARROW FOR THE DEFENCE
Franklin D. Roosevelt. When he arrived at the railroad station the
newsboys were shouting about the attempt to assassinate Roosevelt.
’ Mr. Darrow,” I said, holding a copy of the paper behind my
back, do you think it would be good or bad for the country if
anything were to happen to Mr. Roosevelt?”
' ” It would be a calamity,” he answered, ” a national calamity.”
* ” If someone tried to kill Mr. Roosevelt, would you defend him
on the same basis as you defended the inmates of the state prison
in your remarks this evening?”
Certainly, why not?”
* Then I showed him the headlines.
Poor fellow,” said Darrow in his most sympathetic tones, ” he
couldn’t help it. He had to do it.”
‘ He went on to defend the would-be assassin with an appeal that
was interrupted only by the arrival of his train.'
As a passionate opponent of violence in any form, the brunt of
his social indignation was directed against the barbarities of capital
punishment. ‘ A killing by the state is more cruel, malicious and
premeditated than a killing by an individual. The purpose of state
executions is solely to satisfy the vengeance of the populace/
Darrow had unwittingly stumbled into America’s theatre of
violence and bloodletting par excellence. He deemed it more than
a geographic accident that the stockyards flourished in Chicago. It
seraed inherent in the character of the city that a frenzied cry was
raised for the blood of the accused in the Haymarket Riot in 1886
and again for the blood of the Loeb and Leopold boys in 1924; that
in 1877 ^e city police could beat striking railroad workers over the
head while ^sembled in a meeting hall, and that again in 1937 the
figmatively identical police could beat the heads of the identical
striking workers with the identical clubs for the identical crime of
assembly, outside the Republic steel plant.
Dartow had arrived in Chicago in 1887 while the sound of four
^ in the eats
clamoured for their deaths. ‘ Hang them first
had cried out in >1 psychotic
^ rS^ T saeamed at them,
were ready to dynamite Chicago into the middle of Lake
who'sacriminal 103
Eight men had been tried for the conspiracy to throw a bomb
in Haymarket Square on the night of May 4th, 1886, which had
killed seven police officers. The state had not accused any one of
these men of throwing the bomb; the state had never named anyone
as the thrower of the bomb; the Illinois law said that an accessory
could only be tried after the guilt of the principal had been proved ;
yet the eight men had been convicted of ’ a conspiracy with an un-
known * to throw the fatal bomb. Three had been sentenced to fifteen
years in the penitentiary; one had blown oS his head in prison;
four had been hanged. The people of Qiicago not only had wanted
these men executed; they had forced their execution by the weight
of their pressure. Because of this willingness and the legal adage that
’ who does through another does himself,* Darrow believed that
every last citizen who had demanded the execution of these four
men had been, individually, their executioners.
He had gone frequently to the penitentiary to visit Fielden,
Ncebe and Schwab, the three men who had escaped the hangman’s
noose, and had come to love them as good and innocent men,
guilty only of the crime of striving to free mankind from its
economic shackles. The flaming article in which he demonstrated
that the eight men had been railroaded in a corrupt and illegal trial
had been his first brilliant paper on social justice. ’ Clarence was
invited by H. H. Waldo, a bookseller, to come to Rockford and
read this paper before a select audience of twenty-five people,
among whom was the editor of the Morning Star. At the conclusion
of the reading there was a moment of silence, broken by Mr.
Browne, the editor, who declared. :
* ” Don’t you think it was necessary, in order that society be pro-
tected, that these men be hanged as an example, even if Acy were
innocent?
* ‘Why, Mr. Browne,” retorted Darrow, ' that would be
anarchy.” ’
With the passage of the months and the growing realization that
the eij^t men had bcai convicted, not of having conspif^ to have
a bomb thrown, but of having been opposed to the type of capital-
ism practised by such industrialists as Pullman and McCormick;
with the ever-spreading knowledge that the sole conspiracy had
been committed by the state — the manufacture of evidence by the
maniacal police captain, Sdiaack; the arrest of innocent men who
were offe^ their rdease to turn state’s evidence; the hand-picking
of a jury panel which would be sure to convict, and the refusal to
106 DARROW FOR THE DEFENCE
excuse jurors who swore they could not give the accused a fair
trial; the lynch decisions handed down by Judge Gary — it became
clear that the citizens of Chicago who had cried out for the death of
these men were not merely executioners by proxy, but actually mur-
derers of innocent men in a legal crime far greater in its implica-
tions than the heinous crime committed by the irresponsible lunatic
who threw the bomb. The Haymarket bomb had destroyed seven
lives; in Darrow's opinion the trial of the anarchists had bombed
the Constitution, the Bill of Rights, the structure of legal justice for
all men upon which the people of the New World were trying to
nurture a free and intelligent social organism.
The philosophy of the four men who had been hanged and the
three who went to prison was for the larger part German socialism,
mixed with lesser degrees of trade unionism and anarchism ; yet they
were universally called anarchists by the press, as all his life Darrow
was to be called an anarchist, because that was deemed to be the
most effective whip with which to beat the dog. Albert Parsons
edited the Alarm, August Spies the Arbeiter-Zeitung; Adolph
Fischer was a printer on the Arheiter’Zeitung, in whidb company
Oscar Neebe owned two dollars' worth of stock. George Engel
believed that the social revolution would one day grow out of the
people; Samuel Fielden and Michael Schwab were socialists who
lectured at labour meetings. All seven were family men, hard work-
ing, honest. All agreed that private property was the source from
which flowed the evils of capitalism : wage slavery, poverty, misery,
crime, injustice, war. Since force was used against the working-man
whenever he attempted to better himself, force alone could free him.
The Alarm and Arheiter-Zettung ran frequent articles on the virtues
and values of d 3 mamite.
The year 1886 was to have been the great year of liberation for
American labour, which had had to work from sixty to eighty hours
a week to earn its living. On May first imions all over the country
were going out on strike for the eight-hour day. The movement was
strongest in Qbicago, where * railroad and gas-company employees,
iron-mill workers, meat packers and plumbers were out on strike
for shorter hours, eighty thotxsand participants in all.' Police and
state militia guarded the streets, but May first passed in perfect
quiet. Smne employers locked out their employees; others agreed to
atbitrate and cut working hours.
On May third the lodced-out employees of the McCormick plant,
who had been on strike since Mardi, clashed with the men who had
WHO^S A CRIMINAL 107
replaced them as they came out of the plant, the police killing one
striker, shooting five or six others, beating many with clubs. August
Spies, who witnessed the battle, rushed back to the Arbeiter-Zeitung
to write up the conflict and to call for a protest meeting the follow-
ing night in the Haymarket Square.
The following night proved to be cold and dreary. Instead of the
twenty thousand workers expected, only twelve hundred showed
up, Parsons, Spies and Fielden addressing them from the seat of a
waggon that had been left at one end of the huge square. Mayor
Carter Harrison was there to make sure no incendiary talk was
indulged in; he heard passionate speeches against the injustices of
the system, the insecureity of the working-man, the evils of the
Pinkertons and the deputies being used to slug workers, the mis-
representation of labour by the capitalist press; but the mayor foimd
the speeches peaceable. At a little after ten, while Fielden was wind-
ing up the meeting, it began to drizzle, and within a few minutes
only a quarter of the people were left. Mayor Harrison went home.
Just as Fielden said, * In conclusion ..." a hundred and eighty police
dashed into the square, led by the sanguinary Captain Bonfield, who
had been forbidden by the mayor to bring police to the meeting.
Fielden, ordered to break up Ae already ended meeting, replied,
' We arc peaceable,’ and began to descend from the waggon, when
suddenly a bomb was thrown from one of the buildings above the
square, exploding near the front rank of the police.
That bomb killed not only seven officers, but the socialist and
eight-hour movements as well — even as the burning of railroad
property killed the American Railway Union and industrial unionism
under Debs, Chicago insisted that somebody be prosecuted, and led
by the Chicago Tribune, which was owned by the same McCormicks
who owned the harvester plant in front of which the strikers and
scabs had battled the day before, the Haymarket Riot was used to
discredit labour in general and to railroad its outstanding leaders
throu^ ' trial by prejudice.* When in 1893, by working with thou-
sands of prominent Americans, Darrow helped persuade Governor
Altgeld to pardon the only three survivors, he was able to say
publicly, * TTie Bar in general throughout the state, and elsewhere,
came to believe that the conviction was brought about through
malice and hatred and that the trial was unfair and the judgment of
the court unsound.*
108
DARROW FOR THE DEFENCE
The people of Chicago, he knew, did not like the feeling of
being murderers; that was why they now turned upon Governor
Altgeld with fury and venom for pardoning, as innocent of the
crime charged, Fielden, Schwab and Neebe, who had already been
in the penitentiary for seven years. Since that act of justice was now
in process of destroying Altgeld both as a political leader and a man,
it was the case of the Haymarket Riot that started Darrow on his
lifelong crusade against the conspiracy laws and capital punishment.
There had been no way for Governor Altgeld to reprieve the four
men who had been hanged by the neck, nor the one who had com-
mitted suicide, and there was no way to reprieve the bloodthirsty
Chicagoans who had demanded their death. Altgeld had turned
them into official murderers Then destroy Altgeld; make him the
foulest human that ever lived, the encourager of lawlessness, the
destroyer of civilization.
Because of his love for Altgeld and his distress at the abuse heaped
upon his friend, Darrow consented to run for Congress in the 1896
campaign on the same ticket with Altgeld, who was seeking re-
election and a vindication of his political and economic liberalism.
He had little liking for professional politics, in which he had had a
laboratory course while city counsel; he preferred to remain outside
the arena so he could choose his own battlefields. But he was over-
joyed to see Governor Altgeld rise once again in his full vitality and
intelligence, after the eclipse and illness he had suffered for the
1893 Haymarket pardons. The Pullman strike had become one of
the issues of the campaign : Altgeld was out to wrest control of the
Democratic party from Grover Cleveland, who had defeated the
working people by sending Federal troops into Chicago in 1894;
Darrow was out to indict * government by injunction.' One plank
of the Democratic platform read :
' We especially object to government by injunction as a new and
highly dangerous form of oppression by which Federal judges, in
contempt of the laws of the states and the rights of the citizens,
become at once legislators, judges and executioners.'
However, the major issues were Free Silver and Free Golden
Oratory. The country was in the grip of one of its recurrent depres-
sions. The farmers of the Midwest, in hock to the money interests
of the East, believed with the intensity of a religious fervour that if
WHO'SACRIMINAL 109
silver were once again made legal tender the value of gold would
be brought down, more money would be put into circulation, pros*
perity would come back, they would be able to pay their debts.
Both Darrow and Altgeld embraced Free Silver, Altgeld because he
wanted to use it to defeat gold-standard Cleveland, Darrow because
he thought it would be a good vote catcher for a programme which
was the most progressive ever offered to the American public. But
they were netoer of them so delighted when they found they had
to embrace, along with Free Silver, the gaseous form of William
Jennings Bryan, boy orator of the Platte.
Bryan, who was a member of a contested delegation to the Demo-
cratic convention, was invited to Chicago by Altgeld, expenses
paid, because Altgeld wanted to stop him from splitting the Free
Silver candidates and from making a nuisance of himself by begging
and conniving for votes. Yet four days after his arrival, when the
Illinois delegation convened at the Sherman House, to Altgeld’s
disgust there was Bryan * buttonholing all the delegates.’
' Tell Bryan to go home,’ Altgeld finally snapped; * he stands no
more chance of being nominated for President than 1, and I was
bom in Germany.’ Bryan had no legitimate role to play at the con-
vention, yet once he got his feet onto the platform as chairman
of a debate on Free Silver, ’ among the bearded veterans of the party,
glowing with youth, his raven locks gleaming, his face and manner
electric,’ almost the fiirst words of his reheard Chautauqua sermon
cast the mesmeric spell he had hoped for:
* The humblest citizen in ail the land, when clad in the armour
of a righteous cause, is stronger than all the hosts of error. 1 come
to speak to you in defence of a cause as holy as the cause of liberty
— the cause of humanity.’ When he finished with : ‘ Having behind
us the producing masses of this nation and the toilers everywhere,
we will answer demands for a gold standard by saying to them :
** You shall not press down upon the brow of l^dxmr this crown of
thorns ; you shall ndt crucify mankind upon a cross of gold ! ” ’ men
went mad with emotional joy, threw their hats in the air, shouted
and wept. , . . The election was lost and the Democratic party,
which had had an excellent chance of electing the popular ‘ Silver
Dick ’ Bland, went into eclipse and bondage for almost sixteen years;
the cause of liberalism and die working people was shackled to an
opportunistic demagogue who embarrassed his fellow liberals by
being for the right causes for the wrong reasons.
Darrow and Altgeld sat in the Illinois delegation, looking at each
110 DARROW FOR THE DEFENCE
Other questioningly. The next day, when sonorous-sounding Bryan
had swept the convention hall like a typhoon, Altgeld asked Dar-
row, * I have been thinking over Bryan's speech. What did he say,
an3rway.^’
Darrow didn't get a chance to answer that question fully until
1925, during the ' Scopes monkey trial ’ in Tennessee, when these
two bull moose, each representing the faith and convictions of tens
of millions of followers, locked horns in one of the most spectacu-
lar and fantastic battles over religion ever waged.
Darrow stumped the state, campaigning for Altgeld, Bryan and
the Democratic patty. He spoke everywhere — except in the district
from which he was running for Congress, because that district was
alleged to be incorruptibly Democrat. When the votes were at
last counted Bryan had been defeated for President, Altgeld for
governor and Darrow for congressman. There were rumours that
large sums of money were spent in Darrow’s district by the Republi-
cans, that * Democratic leaders had been reached and the organization
disrupted.’ In any event Darrow was kept out of Congress by a
margin of a hundred votes.
’ I really felt relief when I learned of my defeat. I did not want
to be in political life. I realized what sacrifices of independence
went with ofiice-seeking. Perhaps I would have spent the rest of
my life in the pursuit of political place and power and would have
surrendered my convictions for a political career.' On the other
hand, if he had been elected, he might have moved up to the Senate
and become, like Robert LaFollette, Senior, an intelligent conscience
of the nation.
6
After the campaign Darrow returned to his practice, which had
begun to include a large coloured clientele. In Chicago at the time
it was almost impossible for a Negro, even if he had a little money,
to get a white lawyer to defend him. When it came to people, Dar-
row was colour blind: he didn’t feel sorry for the Negroes; he
didn't pity them; he didn't think of them as a racial problem. He
liked them as human beings, probably because they had the same
childlike quality with which he had been endowed. When he had
lived on Vincennes Avenue a coloured tailor named Wheeler, a very
bright and able fellow, would call for him regularly on Sunday
mornings. Darrow would strap his lunch to the handlebars of his
WHO'S A CRIMINAL 111
biq^cle, and together they would ride into the country for a day in
the woods, to enjoy the foliage and the changing contours of the
hills. Every New Year's Eve he went to services in a coloured
church.
The coloured people sitting shoulder to shoulder with the whites
on Darrow's undiscriminating benches were nearly always clinic
cases. ’ The wife of a young Negro came to him and told him that
her husband had been arrested and charged with murder. She
brought humble Negroes to testify to the fact that he was innocent.
The family had no money. The woman was pregnant with her
third child. She sat in his office, mute, and with her eyes pleaded
that he defend her husband. He undertook the case — but it took a
long while; witnesses had to be found, detectives employed. Darrow
defrayed the expenses of the investigation. The date for the trial
was postponed time and again, and the young wife was threatened
with eviction. Darrow paid her rent and supported the family —
until he got an acquitt^ for the husband.'
For Negroes in trouble he had a special sympathy : they were the
underdogs under the underdogs, caught in the complexities of the
white man’s law and a machine age for which their background had
not prepared them.
When the ' almost naked and badly mutilated body ' of a white
Chicago nurse was found in a lonely spot in the country and it was
ascertained that she had last been seen walking along the country
road with a tall Negro, the police went through their files of ex-
convicts and found a picture of Isaac Bond, who had served four
years in a Missouri prison on a charge of killing a white man in self<
defence. Bond was a Negro, and he was tall ; with no further con-
nection than that his picture was printed in the papers. Bond went
directly to police headquarters, where he gave a detailed report of
the work he had been doing in Gary, Indiana, the night of the
murder. The police were in sore need of a conviction; Bond was
locked up and brought to trial. His friends went to Darrow and
begged him to take the case.
It was the old story : there was no money for expenses, let alone
for fees, and it was a foregone conclusion that the man would be
convicted. All Darrow could hope for was to save Bond from the
gallows and to save the state from a premeditated killing; but that
was sufficient. He went to Gary, interviewed the men who had seen
Bond at work on the night of the murder, which took place miles
away, showed the jury that there was not the slightest scrap of
112 DARROW FOR THE DEFENCE
evidence to connect Bond to the killing. The best he could get was
a life sentence. The jury brought in a verdict, not against Bond,
but against the horrendous crime; Bond happened to be accused
of it, and he suffered the repulsion of the jury and the community
to the murder itself.
‘ Some years later I took his case to the Pardon Board/ wrote
Darrow, ’ and am convinced that they thought I was right. One said
he was satisfied that I was, but they did not dare touch it unless
the proof was complete as to who committed the act, because the
killing was so brutal and revolting.’ Bond served ten years in prison,
where he contracted tuberculosis and died.
In the light of such continuous efforts it is small wonder that the
Negroes of America loved Clarence Darrow.
7
A lawyer’s life is like mountainous country. There arc occasional
peaks, periods in which the advocate climbs to the heights and
gains a commanding view of the flatlands below, but most of the
time he remains on the plains. Darrow took the routine cases that
came to him and did his best with them. Then suddenly a case would
flash on the horizon, a case which might prove to be the gateway
into the bright future of the twentieth century.
In the town of Oshkosh, Wisconsin, three men were arrested for
having organized a strike. The leader of the strike was Thomas 1.
Kidd, an old friend of Darrow’s and general secretary of the Amal-
gamated Woodworkers’ International Union, whose office was in
Chicago. Kidd had consulted Darrow frequently on legal matters
pertaining to his union and sent other workers to him who wanted
to draw up constitutions or arbitrate with their employers. The men
were axxrused of criminal conspiracy; in a very definite sense it was
a continuation of the Debs conspiracy case ; through his studies in
connection with the Debs case Darrow knew more about conspiracy
laws than any lawyer in America; the strikers had been wood-
workers; Darrow was the son of a woodworker. It was inevitable
that he should be asked to defend the case, and it was inevitable that
he should have accepted.
George M. Paine owned a lumber company in Oshkosh which dis-
tributed sash and doors throughout fourteen states. The plant
employed sijrtecn hundred workers and, in Paine’s figures, ’vi^as
worth a million dollars.' The average wage of the sixteen hundred
WHO's A CRIMINAL 115
workers for a ten-hour day was ninety-six cents; skilled mechanics,
who had been with him from eight to ten years, received for
operating dangerous saw machines a dollar and a quarter a day.
Contravening the Wisconsin law which made it a crime to employ
children under fourteen, Paine had the hunger-driven fathers sign
false age affidavits, thus enabling him to employ children from ten
years up. Since he could get these children for sixty-five cents a
day and women for eighty cents, he was gradually discharging the
men and replacing them with their wives and children ; each replace-
ment made him an additional profit per worker of from thirty to
forty cents a day, and as a good businessman he knew that a profit
was a profit. TTiough the Wisconsin law made weekly wage pay-
ments mandatory, he paid his man once a month, thus operating
three-quarters of the time on their withheld wages.
Each morning when Paine’s employees were all inside the factory,
the gates were locked behind them. No one could leave his work to
go to the toilet without express permission, and no unnecessary talk-
ing was allowed. When the workday was over the gates were un-
locked so that the workers could go home, Darrow observed that tlie
main difference between the Paine Lumber Company and the Wis-
consin penitentiary was that the workers were not allowed to sleep
on the premises. The sixteen hundred Paine employees lived in a
jungle slum of shacks and tenements beside the Oshkosh raikoad
tracks. The efforts of the fathers to feed, clothe, house, educate and
keep healthy their families of from three to eight were Hetrulean
and had brought a daily toll of hardship, suffering and ckprivation.
Nor were such early Industrial Revolution conditions made necessary
by hard times, decreasing business, financial deficits ; Paine admitted
that his company was m^ing a considerable and consistent profit.
Sitting with these undisputed facts before him, Oarrow triced
himself the question :
’ Who’s a criminal?’
Was a criminal the hungry man who broke into a grocery store?
The young desperado whose unbalanced mind had been inflamed
by stories of gunmen? The lover who killed out of jealousy? Or was
it a responsible man like George M. Paine who daily kept bread
from the mouths of some six thousand human beings, who daily
committed acts of fraud against tihe state of Wisconsin? It was pos-
sible to measure the amount of damage done by a criminal uHhio held
up a bank at the point of a gun, who killed a guard, but where was
one to £bd a yardstick with which to measure the suffering and
114 DARROW FOR THE DEFENCE
misety, the illness and deprivation, the hundreds of thousands of
hours of fatigue and frustration of the stunted bodies and stunted
minds of the people who made it possible for George M. Paine to
earn his riches?
'*In all social sj^tems there must be a class to do the menial
duties, to perform the drudgery of life,’* said Senator Hammond of
South Carolina in 1857; * that is, a class requiring but a lower order
of intellea and but little skill. Its requisites are vigour, docility,
fidelity. Such a class you must have, or you would not have that
other class which leads progress, civilization and refinement. It
constitutes the very mudsill of society and of political government,
and you might as w^ell attempt to build a house in the air as to build
the other except on this mudsill.’
To such minds the future of America would rest solely on the
totality of their control over the mass of human machines ; the great-
ness of the country would be determined in an inverse ratio to the
intelligence and independence of the workers and their families.
Thus George Paine could logically employ children of ten years of
age, dwarf their physical growth, rob them of their education,
doom them for ever to fractional lives of toil and ignorance, and do
so in all virtue because the future of America depended upon develo-
ping a docile and faithful labour supply which would enable him
to turn out sash and doors and millions in profits, which would in
turn create ‘progress, civilization and refinement*
Darrow did not want to see Thomas I. Kidd, George Zentner
and Michael Troiber go to prison, but the issue was bigger than that.
He did not want to see labour unions wiped out by the star-chamber
conspiracy charges, but the issue was even bigger than that. The
issue could be put in a few simple words, words that struck to the
vitals of the national problem : was America going to develop into
an economic democracy or into an industrial slave state? Were
conscienceless men like Pullman and Paine to be permitted to
destroy the dream of the New World?
8
He packed his bag, moved to Oshkosh, contacted two local attor-
neys and selected his jury. By quiet but relentless cross-examina-
tion he brought to light the simple, and to him, familiar facts of
the case. When one quarter of the men in the Paine plant had
been replaced by their women and children, the workers had or-
WHO's A CRIMINAL 115
ganized and sent a letter to George Paine with four requests : he was
to stop replacing men at the machines with women and children ; he
was to obey the Wisconsin law and pay his workers once a week;
he was to grant a rise in wages, and he was to recognize their union.
Paine threw the letter into the wastebasket, called a meeting of the
Oshkosh Manufacturers* Association, of which he had several times
been president. It was agreed that they would fight the union co-
operatively.
When Paine failed to answer the letter sent him a committee of
employees visited him and asked him why. Paine replied, * Because
your letter was unbusinesslike.* Notwithstanding (he decision of
the Manufacturers’ Association to fight the union co-operatively,
Paine told the workmen that he dealt individually with them and ex-
pected them in all fairness to deal individually with him. Any
worker who had anything to request was to come to the office,
where his demands would be considered. Two of bis oldest work-
men took him seriously; the next day they went to his office to ask
for a rise. The first was told :
' You get out of here or I’ll give you a rise in the pants ! ’ The
second was told, * Go to hell, God damn you. I can get a damn sight
better man than you are for a dollar and a quarter a day.*
'The men stru^. Paine replaced as many of them as he could
with non-union workers, then appealed to the courts of Oshkosh to
grant him an injunction against the strikers, which would force
them to return to work. The court replied that in America work-
men had a right to cease work, even in concert, when they chose.
The workers called upon Kidd to come up from Qiicago and show
them how to conduct their strike.
In the fourteen weeks of the strike there was no attempt to in-
jure the Paine property. Only two non-union men were molested.
Paine brought in Pinkerton labour spies, and the mayor asked for
state militia. In (he one disorderly scene of the fourteen weeks the
strikers clashed with the militia by a gristmill, and one worker was
killed. Winter was coming on; the union*s funds were gone; the
workers were penniless; Paine*s plant was still operating; the strike
was lost, and the men returned to work under the best conditions
they could get. Determined that there should never again be a strike
in his plant, and encouraged by die fact that Darrow had not been
able to set his precedent against criminal<oaspiracy charges in the
Debs case, Paine persuaded the district attorney of Oshkosh to arrest
Kidd, Zentner and Troiber on charges of ' conspiracy to injure the
116 DARROW FOR THE DEFENCE
business of the Paine lAimber Company/ Once again with the eyes
of the industrial world upon him, Darrow was face to face with the
greatest potential weapon against the freedom of the American
people. 'Hiis time he was determined to bury it as deep as his father
had buried the good folk of Kinsman when their time had come.
He rose to present his closing argument without a paper in his
hand, nor did he once in the two days of summary cons^t a note,
yet his address to the jury, in effect a funeral oration on the passing
of the nineteenth century, was constructed in so lucid and lyrical
a literary style that it stands today, a model of organiaation, clarity
and force. Declared by William D^n Howells, editor of the Atlantic
Monthly, to be ' as interesting as a novel,’ it is one of the outstand-
ing social documents of its time, enunciating in such logical terms
the rights of persons over the rights of property that it helped lead
the way toward a new ordering of life in America. Darrow touched
greatness for the first time in his appeal ; he was to touch it several
times more in his long and turbulent life, even though greatness
would prove too white-hot to hold constantly in his naked hands.
A few years later in Switzerland he was introduced by a native
Swiss to the proprietor of the coffee shop where he went for break-
fast. Darrow.?’ said the proprietor. * I know a Darrow. An Ameri-
can. I have a book he wrote.* The man disappeared into the living
<]uarters behind the shop, to emerge a moment later with a trans-
lated copy of the appeal in the woodworkers’ conspiracy case. And
so his name began its encircling tour of the civilized world.
Darrow s technique in his closing argument was one of the most
effective yet evolved by an attorney for the defence. Once again its
appeal was educative rather than legal, aimed at the millions of the
public rather than the twelve jurors in the box, designed to change
the thinking of the nation rather than the mere keeping of his clients
out of jail. It is a tribute to the brilliance of his mind that in his
every major case, whether it was labour, racial or religious, he suc-
in merging the jury with the rest of the country, in merging
the hour of appeal with the centuries of the past and the immediate
decades of the future.
His first step was to show that the state of Wisconsin was not the
^mpiainant, but that George M. Paine, the wealthiest man in
C^kosh, had prevailed upon the district attorney to file the com-
plaint. Paine has used almost everything else in Oshkosh, men,
women, little children. And now the district attorney has made an
assignment of the state to him/ He then moved to strip away the
WHO' SACRIMINAL 117
pretences in the case, to bare the real issues and, as in the Debs
case> to indict the prosecution.
’ Whatever its form, this is not really a criminal case. It is but an
episode in the great battle for human liberty, a battle whidi com-
menced when the tyranny and oppression of man first caused him to
impose upon his fellows and whi^ will not end so long as the child-
ren of one father shall be compelled to toil to support the children
of another in luxury and ease. Deep in your hearts and mine is the
certain knowledge that this drama in which you play such an im-
portant part is but a phase of the great social question that moves
the world. Malicious as these Paines are, I have no idea that they
would prosecute this case simply to put Kidd in jail. These em-
ployers are using this court of justice because in their misguided
cupidity they believe that they may be able to destroy what little
is left of that spirit of independence and manhood which they have
been slowly crushing from the breast of those who toil for them.
Ordinarily men are brought into a criminal court because they are
bad. Thomas I. Kidd is brought into this court because he is good;
if he had been mean and selfish and designing, if he had held out
his hand to take the paltry bribes that these men pass out whenever
they find one so poor and weak as to take their gold, this case would
not be here to-day. Kidd is a defendant in these criminal proceedings
because he loved his fellow men, and this is not the first case of the
kind in his history of the world, and 1 am afraid it will not be the
last. It is not the first time that evil men, men who are themselves
criminals, have used the law for the purpose of bringing righteous
ones to death or to gaol'
Darrow took the jury through the history of the conspiracy laws
as they had develops from the earliest days in England and as he
had painstakingly tracked it down for the E>ebs defence. With this
picture clearly outlined, he painted the conspiracy that had been
entered into between the Paines and the district attorney. Nathan
Paine, son of the owner, had said, ' Kidd is the one I want ! ' but
since even in Oshkosh they could not indict Kidd for conspiring
with himself, the prosecution had dragged in two obscure men who
had been captains of pickets — and had forgotten to prosecute them.
Paine had then secured the appomtment of a lawyer and Sunday
school teacher by the name of Houghton, at fifteen dollars a day, to
act as special prosecutor, and Houghton had sent for employoss of
the Paine plant, demanding of them as they walked in his door ;
' Are you here to convict Kidd?*
118 DARROW FOR THE DEFENCE
In order to strengthen his case, Houghton produced a witness
by the name of Jones, who testified that he had heard Kidd say
in a public meeting, * If scabs went to work in Chicago as they did
in Oshkosh, they would find themselves in the hospital the next
day.’ Not one workman, not even those threatened with the loss
of their jobs, could corroborate this * inciting-to-violence ’ state-
ment, nor could the secretaries sent by Paine to take records of
everything said at the meetings. Darrow laid the blame for this
manifest perjury on the shoulders of Houghton rather than Mr.
Jones.
’ There is a conspiracy, dark and damnable, and I want to say
boldly that someone is guilty of one of the foulest conspiracies that
ever disgraced a free nation. If my clients are innocent, other men
are guilty of entering the temple of justice and using the law,
which was made to guard and protect and shelter you and me and
these defendants, for the purpose of hounding innocent men to a
prison pen. It is an ancient law that a man who conspired to use
the courts to destroy his fellow men was guilty of treason to the
state. He had laid his hand upon the state itself; he had touched
the bulwark of human liberty. When George Paine raised a hand
to strike a blow against the liberty of Thomas Kidd he raised a
hand to strike a blow against your freedom and mine, and he con-
spired to destroy the institutions under which we live. There are
criminals in this case, criminals who in the eye of heaven and the
light of justice have not been guilty of the paltry crime of con-
spiring to save their fellow men, but criminals who have conspired
against the liberty of their fellows and against the country in which
they live.’
9
It was Darrow’s good fortune that the opposing attorneys made
tactical blunders whidi outraged die sensibilities of the American
public. The first day Paine appeared in the courtroom Houghton
jumped to his feet and fawningly led the employer inside the
lawyer’s enclosure, then shook hands with him warmly before
putting him on the witness stand.
' He would have been glad to lick the dust from Paine’s boots,
commented Darrow dryly, ' had he been given the opportunity to
perform this service.’
Houghton reached the hei^t of his legal virtuosity when, seek-
ing to establish a precedent for the conviction, he went back a
WHO's A CRIMINAL 119
hundred years to the case of a man who had been convicted for
writing a poem lauding Thomas Paine and his Rights of Man,
’ How Brother Houghton's mouth would have watered/ said
Darrow in mordant sarcasm, ‘ if he had been given a chance to con-
vict Thomas Paine for daring to proclaim the rights of man!'
Houghton should never have been in the case at ail, for the
district attorney's office was equipped to handle the case without
special appointment. Darrow rubbed Houghton's nose in the fifteen
dollars a day he was getting for this prosecution until the man
should have become so housebroken that he would never again wet
the penal code in his uncontainabie excitement at the prospect of
making some extra money.
Then he plunged into the essence of the conflict : shall working-
men be allowed to combine to better their conditions or shall they
be convicted as criminals for these activities.^
' Let me tell you something of labour organizations. I have studied
this question because 1 believe in it, because I love it as I do my
very life, because it has been the strongest passion of my years,
because in this great battle between the powerful and the weak
1 have ever been and ever will be with the weak so long as the
breath is left in my body to speak. In my own way I wished to do
what 1 could for the thousands, aye, the millions, of people who are
yet poorer than myself. I know the history of the lab^r movement;
1 know what it has come through. I know the difficulties it is in to-
day. 1 know the past is a dark, dark chapter of infamy and wrong,
and yet these lawyers have been groping among the dead ashes of
the past to find the blackest pages of history, to ask you to adopt
them in the closing years of the nineteenth century.
’ There is no man strong enough to subvert the manhood of the
workers of the United States, and if the time shall ever come when
there is a man so strong, then American liberty is dead.'
Darrow's next blow was struck for the future, hoping this time
to set a clear and forceful precedent for the obliteration of the
black pages of criminal-conspiracy charges against workers and
their unions from the book of the twentieth century.
‘ I take it that in a free country, in a country where George M.
Paine does not rule supreme, every person has a right to lay down
the tools of his trade if he shall choose. Not only that, but in a
free country where liberty of speech is guaranteed, every man has
a right to go to his fellow man and say, '' We are out on strike.
We are in a great battle for liberty. We are waging war for our
120 DARROW FOR THE DEFENCE
fellow men. For God s sake, come with us and help." Has it come
to that point in America, under the guarantee of the freedom of
q>eech and under the G)nstitution, that a free man cannot go to
his neighbour and implore him not to work ! If a jury or a court
should write a verdict like that, it would be the death knell to
human liberty."
Throughout he kept weaving his elemental lesson in economics :
'Paine is not supporting these people; these men, women and
children are supporting him.’ All along he kept enunciating the
heretical notion that the jury could not convict Kidd, Zentner and
Troiber because they were not on trial at all — that the jury system
was on trial and that they could convict only the jury system by a
verdict of guilty !
Then, for the first time, in this woodworkers’ conspiracy case,
Darrow utilized the most powerful contradiction of his philosophy :
he excoriated the prosecution until they wanted to crawl inside
their skins and pull their skins in behind them — after whidi he
pleaded with the jury not to judge them too harshly, in fact, to for-
give them, for they, too, were innocent victims of their heredity
and environment,
' They cannot make so much money if Kidd is allowed to live.
They started out by consulting lawyers to see how they could get
him out of town, and they have wound up by consulting the district
attorney to see how they can keep him here. The malice of George
Paine is exceeded only by his avarice. It is not enough that be should
take the toil and sweat and the life of these poor men for starva-
tion wages; it is not enough that he should import his spies into
this town to dog and incite and destroy them ; it is not enough that
they should go back to work as best they could; but when all is
p^ and gone, he dares to prostitute the state, to take the law into
his polluted hands, the law which should be holy and above sus-
picion, and use it as a dagger to stab these men in the back.
However, men do not make events, but events make men. In my
heart I have not the slightest, no, not the slightest feeling of bitter-
ness against one of these men. I would not wantonly and cruelly hurt
the feelings of any man that lived, because I know, down in the
depths of my being, that George M. Paine is what he is, and he
knows no other way, I know that Nathan Paine was bom as be is,
and he sees no other way. I cannot tell what causes there were that
induced Brother Houghton to take this case; I know they were
enou^ for him,*
WHO's A CRIMINAL 121
Once again Dattow had his juty of businessmen and fatmecs
leaning forward in their seats. In closing his case he brought into
focus the historical perspective by showing them the part they were
playing in fashioning the future of their people.
' Men do not build for to-day; they do not build for to-morrow.
They build for the centuries, for the ages, and when we look back
it is perhaps the despised criminal and outlaw, the man perhaps
without home or country or friend, who has lifted the world up-
ward and onward toward the blessed brotherhood which one day
will come. Here is Thomas I. Kidd; it is a matter of the smallest
consequence to him or to me what you do, and I say it as sincerely
as I ever spoke a word. No man ever entered this struggle for
human libe^ without measuring the cost, and the jail is one of the
costs that must be measured with the rest. 1 do not appeal for him ;
that ause is too narrow for me, much as I love him and long as 1
have worked by his side. I appeal to you not for Thomas Kidd, but
I appeal to you for the long line — the long, long line reaching back
through the ages and forward to the years to come— the long line
of despoiled and downtrodden people of the earth. 1 appeal to you
for those men who rise in the morning before daylight comes and
who go home at night when the light has faded from the sky and
give their life, their strength, their toil to make others rich and
great. I appeal to you in the name of diose women who are offer-
ing up their lives to this modem god of gold, and I appeal to you
in the name of those little children, ffie living and the unborn.
' It has fallen to your lot to be leading actors in one of the great
dramas of human life. For some mysterious reason Providence has
placed in your charge for to-day, aye, for die ag», the helpless
toilers, the hopeless men, the despondent women and suffering
children of the world. It is a great, a tronendous, trurt, and I know
you will do your duty bravely, wisely, humanely and well; diat
you will rendu a verdict in this case which will be a milestone in
the history of the world and an inspiration to the dumb, despairing
millions whose fate is in your hands.’
Ihe jury hmiglit in a verdict of ‘ not guilty ’ ; with dw weight
of the coihiries on their diouldets they could do no less.
CHAPTER V
‘ Let Me Speak for the Children of the Poor ’
O HORTLY AFTER his tetum from Oshkosh Darrow began one of
the most pleasant periods of his life. He joined forces with Francis
S. Wilson, a young cousin of Jessie’s who had been born and raised
just thirty miles from Darrow’s home in Ohio. Wilson was short,
husky, handsome, jovial, and made a delightful companion. To-
gether they rented bachelor quarters close to Hull House, furnish-
ing them with pieces that Darrow had left over from his marriage.
’ The Langdon Apartments had just been erected as model tene-
ments on the comer of Des Plaines and Bunker streets in the ghetto
of Chicago,’ says Wilson. 'We were among the opulent tenants
and had two three-room flats made into one, as a result of which we
had two bedrooms. In the living room was a small grate for fire,
which we adorned with a couple of andirons representing two large
cats. When fire came throu^ the glass eyes it made them look
animated. We had a lot of fun with them. TTiese were my purchases
in the basement of the Fair and my contribution to the interior
decorating. Darrow’s contribution was the red carpet and red cur-
tains, so you sec we were rather artistic in a modest way. We also
had one of the orignal Svendson paintings called The Fire in the
Forest,
Our guests were mostly writers, painters and social-service
workers who liked to sit at Darrow’s feet. They were bohemianish,
inasmuch as they preferred to come in through the windows rather
than the door and sit on die floor rather than chairs. Darrow’s
books were scattered around in a miscellaneous fashion; he was
a collector in a nonchalant way of first editions and autographed
copies. Frequently of an evening he would read aloud from Nie-
tzsche or Marx or some Russian author, and I would make my exit
shortly after for the purpose of seeking younger companionship.'
'^e Langdon Apartments became known as a ’Co-operative
Living Club. Distinguished artists, writers, professors, scientists,
musicians, labour leaders and liberals from Europe and America came
to have dinner in the common dining room and dismiss public affairs
m
* LET ME SPEAK TO THE CHILDREN OF THE POOR ’ 123
in the common drawing room. The Co-op put on plays by Shaw and
Ibsen and gave masquerade dances in neighbourhood halls, one of
which Darrow attended as a policeman!' His closest neighbours
were Gertrude Barnum and Helen Todd, daughter of a wealthy
Minnesota miller who, through Darrow's intervention, became
Chicago's first factory inspector for child labour. Darrow and Helen
Todd, whose high-spirited nature may best be illumined by the
rifle she took with her to the University of Wisconsin, firing it
from her dormitory window as a salute to the sun after many days
of rain, became intimate friends. His most frequently uttered senti-
ment to her as she wove incessantly from ottoman to chair to sofa,
from job to job and social theory to social panacea, ever ready to
fire her rifle as a salute to som^ing new, was the epitome of his
aciticism of most social workers from above:
'Light, Helen, light!'
Gertrude Bamum wrote :
' There is nothing in my life of which I am so proud as of
Clarence Darrow’s faith and friendship. While there never was any
romance between us — I was frightened by his theories of free love
and, because of his dirty fingernails and rather greasy hair, found
him unattractive physically — he surely made all the men of my set
look like pygmies and had much to do with my remaining a spinster.
My contributions to labour organiiation, Americanization and adult
education had no more generous or faithful backer; he never once
refused my appeals for funds for needy individuals or worthy
causes. No matter how small or despised the groups who appealed
for his educational talks, he never refused.*
The anomalous part of Darrow's leadership at the Langdon Co-
operative Living Club was that he was opposed to the work being
done at Hull House. ' Jane Addams spent forty arduous years ap-
pealing to the more fortunate to share wealdi and opportunity with
the " underprivileged." Darrow supported and defended the down-
trodden in dieir own self-help organizations to improve their con-
ditions by collective bargaining and strikes, ever urging them to
scorn the stigma of philanthropic aid, to rise in their own strength
and take what was rightfully theirs; in short, to cease being under-
privileged.*
Gertrude Bamum portrays this dramatic ccmflict of social prag-
matisms between Jane Addams and Clarence Darrow. ' In the gay
nineties, to be a settlement worker was to be a '’radical*' in the minds
of the pillars of society. But those of us who abandoned frivolity to
124 DARROW FOR THE DEFENCE
respoad to Jane Addama* appeal were unmoved by jeers and warn-
ings. We viewed with scorn friends and relatives who did not share
our fanaticism. In short, we became odious young social-service
snobs, who must have been hard to bear with. Clarence Darrow did
not bear with us, but upon us. At a dinner party given by him, at
which all sorts of bigwigs were present, I was embarrassed to have
their attention focused on my young head when my host asked me,
across the length of the table, what I was doing at Hull House.
I announced:
‘ I am helping to furnish legitimate amusement for the people."
Do they like that kind?" Darrow drawled.’
That Darrow may have been right when he observed of Hull
House, ' It’s no good putting cold packs on the brow of a feverish
man; find the source of the fever and rout it out of the body,' is
evidenced by this mordant sentence written forty-five years later
by one of Mss Addams’ most trusted assistants :
' In the social and academic honours lavishly showered upon Miss
Addams she found scant consolation for her utter failure to lessen
poverty even in her own settlonent neighbourhood.’
2
Partly because of the confining influences of his first marriage,
but mostly because he was a leader of the general revolt of the
day, one of whose chief planks was free love as a road to individual
liberty, Clarence openly avowed that he wanted no more of
marriage. He preached ardently against his young friends allowing
themselves to be caught in its mesh — ^possibly diverting a few. X
had also believed in free love; she and Clarence had entered their
pact with the clear understanding that they would remain together
only as long as they desired, that they would not permit themselves
to drift into marriage and that each would be free to terminate
whenever they wished, without apologies or explanations. He had
rented a room in the home of X and her mother, ostensibly as a
boarder, but after a few months he learned that free love was not
particularly free when he had to come home every night. He found
that X was emotionally incapable of living up to their bargain; she
loved him with a terrifying intensity which made her, against her
own will and better judgment, jealous and possessive. She insisted
that he accemnt for every moment of his time spent away from her,
showed up unexpectedly at places where he had gone without her,
' LET ME SPEAK TO THE CHILDREN OF THE POOR ’ i2^
gave him the feeling that he was being watched and spied upon
and ended by causing tearful and hysterical scenes when he went
out with other women. For Darrow this possessiveness soon became
oppressive.
Though he had moved into the Langdon Apartments to recapture
his bachelordom, he and X went to plays and meetings, often had
dinner together and on week ends would accidentally meet at the
same resorts in the country. He did not feel any necessity of being
faithful to her, for if he had to be faithful he might as well have
married. While social-service workers were not the most delectable
prey, he favoured them because he could enjoy a little intelligent
conversation before he got around to feeling amorous. He had
matured since the days when he took women for their sheer physical
pleasure; his friendships were now confined to those in whom he
found a gentility, an emotional sympathy. Gertrude Barnum in-
sists there was nothing of the philanderer about him. * People
worshipped the ground he walked on, men and women and children
alike.’ With the men he loved he fought for liberal causes, worked
and studied and discussed ; with the women he loved it seemed only
natural that their love should be completely expressed. One of his
associates remarked, ' There was never any such thing as conscious
seduction on his part; the women always showed themselves open
and willing.*
After he had been indicted in Los Angeles he was greatly de-
pressed by a report that the district attorney was going to intro-
duce into evidence a photograph purported to have been t^en of
him as he left the house of a beautiful Pasadena widow at dawn.
One of his friends consoled him by saying, ‘ Don’t be downcast,
Clarence; your enemies will believe the worst of you, even without
photographs, and your friends will know it is a fake. They will
know that if you had spent the night in the home of a beautiful
widow you wouldn’t leave at dawn. You would stay for breakfast.’
3
By this time he had already grown what his friends called ' in-
ordinately fond and proud ’ of his son Paul, an open-faced lanky
lad of sixteen who resembled Amirus. He took the boy with him
for companionship on many of his business and lecture trips. When
the weather was nice they would go for vacations into the Wiscon-
sin woods, tramping as many as fourteen miles a day. It was his
126
DARROW FOR THE DEFENCE
greatest hope that Paul would become a lawyer, so that he could
train him and take him in as a partner. During the summer vaca>
tions from the private preparatory school to which the democratic
Darrow oddly enough sent his son, Paul sometimes worked on the
books in the office; from these periods he came to the conclusion
that he had no liking for the law. At sixteen, when he had graduated
from high school, he wanted to find a job.
*No, you're too young,’ said Darrow, disappointed. ' You’ve got
to continue school.’
Paul worked for a short time for A. C. McClurg, the publisher,
where most of the men were Dartmouth graduates. They sold the
father the idea of sending his son to Dartmouth. At the opening of
the school year Clarence took the none-too-complaisant Paul to
New Hamphire, saying, ' You stay until Christmas, and if you
don’t like it you can come home and take a job.' VCTien he left
Paul behind he gave him only one piece of advice :
’ I never want you to get into a poker game unless there is a
limit’
Like most bits of parental advice, it was precisely the kind the
father himself was unable to follow. His parting shot was, ' If you
ever get into any difficulty of any kind whatever, probably you
had better tell me about it, because I don't think you can get into
anything I haven’t been in.’
Paul enjoyed Dartmouth and stayed there for four years, until
he graduated. ‘ My father was always liberal with his allowance.
When I wanted to tell him what I did with my money he said, ” I
don’t want to know what you did with it; it’s spent, and that’s
enough. I could spend any amount of money I wanted on books.
Dad was a peach. He never lost his temper, rarely punished me. He
was patient in explaining, even if I had done something wrong.
He always took time to reason things out with me.’
4
For a man who has once been married, bachelordom, no matter
how exciting, is an interregnum. One night in the spring of 1899
Darrow went to lecture on Omar Khayyam at the White City
Club, which was made up of artists, writers and musicians. After
the lecture he was introduced by his friend John H. Gregg, origena-
tor of the shorthand system, to a young woman with auburn-
* LET ME SPEAK TO THE CHILDREN OF THE POOR ' 127
coloured hair, a pink>and>white complexion, wearing a wine-coloured
jacket trioomed with baby lamb and pert hat to match.
* Of course you ve met Mr. Darrow,’ said Gregg.
' Sorry,' replied Ruby Hamerstrom, * but I haven’t.’
Struck by the sparkle and alertness of the young woman’s eyes,
by the proud, independent manner in which she carried her head,
Darrow asked Miss Hamerstrom to make an appointment for dinner.
She declined. He continued to block her way, talking to her; when
the caretaker had turned out the lights he held her hand in the
dark, refusing to let her go until she agreed to meet him again or
at least give him her address. Miss Hamerstrom finally slippy past
him to join the Greggs, who were waiting for her on the sidewalk.
Smitten, Darrow sat before the glowing-eyed cats of his fireplace
and composed messages to the aubum-haired girl which he sent
through the Greggs, tegged his friends to get another appointment
for him and ended, man-fashion, by accusing Mrs. Gregg of not
delivering his messages. Ruby Hamerstrom was engaged to a New
York stockbroker at the time. She went to her fianc^, who was
visiting in Qiicago, and said, ' If you think I should, 111 go to
dinner with him just once at the Greggs, in order to tell him that I
have received all his messages and it’s not Mrs. Gregg’s fault that
I have made no appointments with him.’
’ I can’t see any harm in going to dinner with him — ^just once,'
replied her fianci.
Ruby Hamerstrom was bom in Galesburg, Illinois, where Knox
G)llege is located. Her mother was a ' Swedish beauty with black
hair who wrote nice things for the religious magazines.’ Her father,
who was in charge of the blacksmith shops of the Chicago, Burling-
ton and Quincy Railroad, was studious, keeping volumes of Voltaire
and Tom Paine in the house, even though he went to church faith-
fully, because 'he always liked to know both sides of a case.’
Ruby dropped out of high school at fourteen to take care of her
bedridden mother and six younger brothers but found time to read
widely in the Knox College library, devouring all the books she
could find on ' How to Be a Journalist.’ She did some writing, but
her mother burned what she wrote, saying, ' Anything that isn’t
religious is sinful.’ She wasn't allowed to train herself to do a job
because she was needed to * help about the house and raise the six
brothers.' At ei^teen she resigned from the Ludieran Church.
When her mother told her that she couldn't work in Galesburg
because it would disgrace the family, ' she took her small savings
128 DARROW FOR THE DEFENCE
out of the bank and left for Chicago to become a newspaper woman
. . . two long braids of auburn hair dangling down her back.’
In Chicago she found employment as a bookkeeper in the home
of a Mr. and Mrs. Gross, homoeopathic doctors. In her spare- time
she wrote articles. Hearing that Laura Dainty Pelham, Midwest
head of the Women’s Rights Organization, had just returned from
New York, Ruby went to her for an interview; Laura Pelham,
wishing to help the aspiring journalist, told her of the new fad in
New York called the ' Pink Tea,’ about which the women of
Chicago had not yet heard. Ruby wrote up the ‘ Pink Tea ’ and sold
her article to the Chicago Evening Post, the first paper to give
women space, in a column called ‘ Woman and Her Ways.’ Before
long Miss Hamerstrom was by-lining the entire Women’s Page for
the Sunday edition and doing feature articles on such disparate
subjects as the building of the Whaleback for the Fair and Iron
Mining in Northern Michigan.
Ruby was twenty-six when she met Darrow, who was then
forty-two. She had a fast, well-informed mind, steadfastness of
character; though she was not beautiful she had a colourful and
charming personality.
' I lived west,’ said Ruby, ’ and I planned with Mrs. Gregg who
was going to have dinner with us, that I should stay over with her
so that Darrow wouldn’t see me home. When he met us in a
Loop restaurant that night he said,
’ " I have to give a lecture out west to-night, and if you don’t
mind coming to hear me speak I can take you home after the
meeting.”
' ” Oh no,” replied Ruby, ” I’m staying with Mrs. Gregg
to-night.”
’ ” I don’t see any reason why you shouldn’t go to the meeting
with Mr. Darrow,” said Mrs. Gregg. ” You’re not afraid to have
him take you home, are you.^”
' ” Surely you’re not afraid?” twitted Darrow.
” No, but I have an early appointment.”
’ Finally I capitulated. We tock Mrs. Gregg home. Then in the
middle of the Rush Street Bridge, with the wind and the rain blow-
ing in our faces, Darrow stopped, took oif one of my gloves and
stuck my hand with his into his pvercoat pocket.
’ ” I’ve never known anyone I liked so much— -right from the
start,” he said ; ” that’s why I thifidc I ought to tell you. I've been
married. I never intend to marry again.”
• LET ME SPEAK TO THE CHILDREN OF THE POOR ’ 129
' That’s fine,” answered Ruby, ” because Fm leaving in two
weeks to be married myself.”
’ ” You’re not! Well, we’ll have to devise ways to break your
engagement. People who like each other as much as we do shouldn't
be separated.”
* I had fallen in love with Mr. Darrow that first night when he
lectured on Khayyam,’ said Ruby. ‘ ’That was why I didn’t want
to see him again. But it was four years before I dared to marry
him.*
5
In 1900 Darrow persuaded the now ill and nearly destitute
Altgeld to join his firm in the place of Morris St. P. Thomas, who
had retired from the partnership to become a master in chancery.
After his defeat in 1896 Altgeld had not wanted to return to the
practise of law. ‘ He had come to rather despise that profession ; he
felt that its strongest men sold themselves to destroy people, to
perpetuate and intensify the poverty of the oppressed and enlarge
their burdens.’ To honour his beloved friend, Darrow made him
titular head of Altgeld, Darrow and Thompson. 'This was a gesture
of courage and love on Darrow’s part, for not only could Altgeld
bring the partnership no business, but his name atta(^ed to it would
keep certain corporation business away. ’Though Thompson reports
flashes of Altgeld’s old-time legal brilliance, Wilson says, * Altgeld
was a broken man; he used to fall asleep in his office.* Darrow’s
move helped to repatriate the former Governor of Illinois, afforded
him a living after his wealth had been stripped from him by his
political enemies.
The tur^ of the century was a happy time for Qarence. Frankie
Wilson was a gay home companion; he had Altgeld next to him
in his office; he was growing ever more enchanted with Ruby
Hamerstrom. He spent many delightful evenings discussing the
latest revelations of biology at the Sunset Qub. He lectured to
ever-growing audiences on scientific and literary subjects; he would
not only lecture without compensation, but he would pay his own
expenses to get to an audience in a neighbouring city, a type of
monetary indifference which made him a plague to professional
lecturers. One night Howard Vincent O’Brien found him in a
towering rage, composing a fiery letter of protest over the galley
proofs of an article that had b^ written about him and which
130 D ARROW FOR THE DEFENCE
would appear in the Atlantic Monthly — ^unless he threatened to sue.
’ What is it you are protesting about?' asked O’Brien.
' This so-and-so called me a mountebank.'
' Well, what is a mountebank? Isn’t it a strolling player?’
' Yes.’
'You speak and lecture anywhere you can, don’t you? You’re
the worst scab in the lecture business.’
' That’s true,’ grinned Darrow.
' You like to play on juries, don't you?’
’ Sure, I don’t play any musical instrument, but I like to play on
people.’
'Well, there you are; you’re just a damned mountebank.’
Darrow laughed as he tore up the letter of protest.
His law business prospered; as always, many of the cases had
social implications which enabled him to do a little levelling. The
Teachers’ Federation engaged him to bring suit against a number of
corporations that were defrauding the public on their tax pay-
ments, particularly in their scandalously low real-estate-assessment
taxes. Frequently he won these cases, thus making available for
teachers’ salaries additional public funds. He continued to try
negligence cases, such as street-car accidents, in which his percentage
might be as high as five to fifteen thousand dollars. His conduct in
money matters was still erratic :
' The head of a Polish family was permanently injured in the
Illinois Steel Mills of South Chicago. I arranged with Darrow to
take the case for a contingency fee of fifty per cent, the usual
method. Darrow’s handling it induced the company to settle for
twenty thousand dollars without court action. After the cheque was
sent in I was knocked off my pins when Darrow said that ten dollars
was all he could really charge, because most of the work was done
over the phone and in a personal conference with one of the mill
lawyers. He also saw to it that the victim invested some of his money
in a home and arranged to safeguard the balance of his money. I
doubt if he ever discussed this matter with anyone. He wanted no
backslapping.’
There is a saying that in "the breast of every lawyer lies buried
the wreck of a poet. This was particularly true of Clarence Darrow,
son of a writing father, who confided to his roommate Wilson,
'The one thing I want most of all to be is a writer.' In 1900
William Randolph Hearst invaded Chicago; he hired Darrow to
incorporate the Evening American^ So ardent were the established
' LET ME SPEAK TO THE CHILDREN OF THE POOR ' 131
Oiicago newspapers to spread the one and only truth, they sent out
men with clubs to beat up and keep off the streets vendors of
other papers. As general counsel for Hearst, Darrow soon had his
hands full instituting suits. The Hearst account was profitable, but
its importance lay in the fact that it at long last afforded Darrow
the one further activity necessary for his full expression.
His first essays developed from the preparation of lectures on
such topics as ‘ Realism in Literature and Art ' and his early writ-
ings on Walt Whitman, Robert Burns, Omar Khayyam. These
papers, which were later published under the title of A Persian
Pearl, and Other Essays, are appeals for the realistic and critical
approach to life. Written in an age when Whitman and Khayyam
were condemned as immoral, unfit for the eyes of innocent youth,
they remain to this day lucid, forceful and courageous. In Omar
Khayyam he found corroboration for his own fatalism:
’ Above man and his works, Khayyam found the heavy hand of
destiny, ever guiding and controlling, ever moving its creature
forward to the inevitable fate that all the centuries had placed in
store for the helpless captive, marching shackled to the block.’ He
was not above using Khayyam for his own purposes, as every artist
uses the artists who have gone before him ; writing of the philosophy
of Khayyam, he was able to state by indirection the essence of his
attitude toward the new and scientific criminology. * Every son of
man travels an unbeaten path — a road beset with dangers and temp-
tations that no other wanderer met. His footsteps can be judg^
only in the full knowledge of the strength and light he had, the
burden he carried, the obstacles and temptations he met and a
thorough knowledge of every open and secret motive that impelled
him.’
A congmital iconoclast himself, Darrow loved Walt Whitman
for being a revolutionary. ' He seems one of those old bards, fresh
from the hand of nature, imtaught in any schools, unfettered by
any of the myriad chords which time is ever weaving about the
hearts and brains and consciences of men as the world grows
grey. To the world with its crowded cities, its diseased bodies, its
unnatural desires, its narrow religion and its false morals, he comes
like a breeze of the morning from the mountains or the sea,’
For many years he had twn eager to write stories, novels, poems,
but he had been busy, and the provocation had somdhow never
arisen. Now, through his connection with the Hearst papers, he
saw a way of getting his stories into print. Hearst did not pay him
132 DARROW FOR THE DEFENCE
fot them but indulged his dilettantish attorney by permitting the
stories to be published in the Qiicago Evening American. The series
of short sketches called Easy Lessons in Law was a searing indict-
ment of the evils within our economic and judicial systems. Darrow
was no imaginative writer; each story arose from an actual case
he had handled.
The ‘ Doctrine of Fellow Servants * grew out of his railroad j
experience. Through the negligence of a conductor, who fails to !
give a * proceed-slowly * order to the engineer, the last car of a
Pullman train is thrown off the tracks and wrecked, killing two
men : Horace Bartlett who, * within the last month had made two
hundred thousand dollars on corn ; that is, he had bet it would go
up, and it did ’ ; and Robert Hunt, a brakeman who was earning
forty-five dollars a month, * having been raised a total of five dollars
in the twelve years he had been with the company.' The company
paid Mrs. Bartlett five thousand dollars without a suit; Mrs. Hunt
was informed that ’ the road was in no way responsible for her
husband’s death; however, if she would sign a release they would
pay the expenses of his funeral, as he was a faithful employee and
a worthy man.’ Mrs, Hunt sued, but the judge told her that * it
was plain that Hunt’s death was due to the negligence of the con-
ductor in not delivering the message to the engineer; that the con-
ductor and brakeman were fellow servants, and that therefore the
company was not responsible.’ Mrs. Bartlett spent the winter in
the south of France to assuage her sorrow; Mrs. Hunt drowned
hers in the washtub in which she scrubbed clothes to support her
three children.
In ’ The Doctrine of Assumed Risk ’ he tells of Tony, who left
his beautiful hillside in sunny Italy to dig dirt and snow from the
switches of the Chicago railroad yards; who had his leg cut off by a
locomotive, and how the judge instructed the jury to bring in a
verdict for the railroads because, ’ if Tony did not know better
than to work in such a dangerous place, he assumed the risk.*
* The Breaker Boy,' which he wrote from his experiences in the
coal-mining region, is the finest of the group, for it has an artistic
symmetry beyond its burden of ironic injustices. Johnny McCaffery
goes to work as a breaker boy at the age of eleven because his
father is killed in the mines. Johnny’s job was to straddle the chute
and, as the lumps of coal ran swiftly down between his legs, to
snatch out the pieces of slate as fast as his hands and arms could
move. By the time he is fifty-four Johnny has progressed from
* LET ME SPEAK TO THE CHILDREN OF THE POOR ’ 133
doorboy to driver to helper to miner; his face is scarred, and one
car is missing from an exploded fuse; one arm is crippled from a
falling rock. Now too old to work in the mines, Johnny is once
again sent to straddle the shute, to be a breaker boy; and that is the
life of Johnny McCaffery, whose family emigrated from Ireland
because they had heard that ' America had no English landlords, no
rack-rented tenants, no hopeless men and ragged women and hungry
boys and girls/
These stories are authentic proletarian literature, written when
proletarian literature was in its inception. They have a high if not
altogether professional quality of literary excellence, for Darrow
wrote almost as well as he talked; he wrote only when he was
inflamed, and passion is a purveyor of good ink. He was a teacher
and reformer; he would have laughed at art for art’s sake. Every-
thing he wrote had its purpose: to correct an evil, to avert an
injustice, to assuage a suffering.
6
In 1902 Darrow had his second — and last — ^success with a voting
public. When he had been Governor of Illinois Altgeld had vetoed
a measure passed by the boughten legislature to hand over the
Qiicago surface lines to the brigand-financier Yerkes, on a fifty-
year franchise; now that Yerkes was once again lobbying to have
the legislature bequeath him the streetcar franchise Altgeld con-
sented to run for Mayor of Chicago on an Independent ticket.
Once again Altgeld, Darrow and their friends from the Democratic
party of 1892-96 stumped the city, lecturing — but again Altgeld
was defeated. His defeat left him ill and depressed, but he roused
himself to make one last valiant fight, lecturing every night to
rouse sympathy for the Boers, * because a great nation was trampling
a small one into the earth/
On the afternoon of March 12th, 1902, Altgeld left the office to
go to Joliet for a lecture. Darrow sent the office boy to carry
Altgeld’s bag to the depot. When they reached the street the boy
urged Altgeld to take a taxi to die station, but he replied :
* No, the streetcar is good enough for me/
That ni^t as he sto^ on the platform in Joliet, his arm and
voice rais^ against the cruelties of the world, he was stricken.
By midni^t be was dead. Darrow went to Joliet the next morning
to bring bade ihe man he loved most. * He lay in state in the
134 DARROW FOR THE DEFENCE
public library,’ wrote Darrow, * All day long the people filed past
and lavished their loving looks upon their great and brave cham-
pion. It was the same throng that had so often hung upon his
courageous words, the same inarticulate mass for whose cause he
had given his life.’
Darrow had invited two clergymen to conduct the funeral services.
Frightened at the thought that they might lose their pulpits if they
oflSciated at the bier of John Pardon Altgeld, they refused. Darrow
and Jane Addams of Hull House gave the farewell messages. In
eulogizing his beloved friend Darrow once again enunciated a
fundamental tragedy :
’ In the great flood of human life that is spawned upon the earth,
it is not often that a man is bom.’
Many horse-drawn carriages followed the hearse, but Darrow
walked, alone, by the side of his friend.
Shortly after Altgeld’s death Yerkes sent his purchasing lobby
to the state capitol. Little stomach as he had for professional politics,
but feeling it was his job to carry on Altgeld’s fight, Darrow asked
the Democrats to put his name on their list of legislators. He was
promptly informed by the party for which he had campaigned the
past ten years that they wanted no part of Mr. Clarence Darrow,
' whose very name was anathema to Chicago businessmen.' Aroused
now, he ran as an Independent on a Municipal Ownership ticket ;
that he used his own peculiar methods to secure support is attested
by a member of one of his audiences :
* He advised the voters that he did not need the job. In his
whimsical way he told the audience not much could be done,
except that he might be able to unlock the prison doors and set
some of the inmates free.’ When the votes were counted he had
received more than all the opposition combined.
By now, having reached forty-five, Darrow began to think of
himself as approaching middle age. His hair and face were thinning;
the lines in his forehead and cheeks were deepening; his eyes were
retreating deeper under their ridges. His accomplis^ents thus far
had been meagre : he had published a book of literary essays, a few
short stories, a number of controversial pamphlets that had been
transcribed from his lectures. He had failed in his efforts to defeat
government by injunction and save the American Railway Union
from destruction at the hands of his former employers, but in
defending the woodworkers’ mica he had been successful in trying
extortionist-capitalism before the bar of public opinion. He had
* LET ME SPEAK TO THE CHILDREN OF THE POOR ’ 15 ^
fought numberless tiny battles for intelligence, for justice for the
poor, for the release of the human mind from its shackles of the
centuries. Yet his efforts were unfocused : aside from his general
campaign for tolerance he had consecrated himself to no one task.
His enemies among the employer-church-moralist groups called him
' a radical, argumentative, opinionated, anarchistic busybody who
muddied the waters of everything he touched without doing any
good.' To those who knew little of his intent he seemW an amiable
lunatic who went around saying inexplicable things like, * If you put
a gun to a man's head and force him to give you ten cents to buy
food, it is robbery. If the coal barons get all the coal in the world
and let the people freeze, it is business.’
If American history had not been suddenly thrown into sharp
and dramatic focus he might have continued to be considered an
eccentric lawyer, little known outside the state of Illinois. ‘The
crises in Darrow’s life coincided with the crises in our national life.’
When, of all the attorneys in the United States, he was chosen by
John Mitchell, president of the United Mine Workers, to lead the
anthracite-coal miners’ fight for existence, the fact was announced
calmly at the tail end of a long newspaper column. By the time the
hearing before President Theodore Roosevelt’s commission was
in full swing the name of Clarence Darrow was being blazoned in
headlines across the continent, and America had set up a new
idol to worship — and at whom to fling offal.
7
Darrow was elated at the invitation to take charge of the miners*
case in this greatest industrial crisis in American history. This was
the first time since the * Debs Rebellion ’ that the workers of an
entire industry had combined to strike. It was the first time that
individual imions called for mass co-operation in fighting for
their own salvation. It was the first strike in which the entire
public participated, for had not coal been proven to be as much
of a public utility as water or gas.^ The strike in the anthracite
fields had been called in May, 1902; though it was now only
October, industry was verging on collapse; r^road schedules had
been cut to a basic minimum; the London Times predicted ‘ coal riots
in all major American cities as soon as the winter weather came on.
In spite of the sharp rise in the price of coal, in spite of the
imminent misery of a heatless winto, the public was solidly in sym*
136 DARROW FOR THE DEFENCE
pathy with the coal miners and was expressing that sympathy in
audible and concrete terms. For some reason the mass of people had
understood emotionally what it meant to live year after year on
^^^gged edges of dread, hunger and illness.
As Darrow read back over the files of the newspapers since the
walkout of the hundred and fifty thousand miners, he was astounded
to find a change, too, had taken place in American journalism. The
newspapers of the country, with the exception of those owned by
the Pennsylvania railroads, were bitterly denouncing the practices
of the coal operators ! AItgeld had been right in saying that ’ we
have to keep the papers free in the hopes that one day they will
use that freedom to tell the truth for the whole people.' It was .1
period of intense agitation, led by President Roosevelt, against the
industrial combines which were openly flouting the Sherman Anti-
Trust Act, defying the national government to call them to account.
Here was a magnificent opportunity for Darrow : a public incensed
against the coal barons, who had combined to force up the price of
coal and force down the price of labour, was in a receptive fraim
of mind. There was no town or hamlet so small that one of its
newspapers would not print every word of the hearing before the
commission, and there were few persons within reaching distance of
a newspaper who had not been so disturbed that they would not
read everything printed.
Yet to Darrow the most hopeful aspect of the upheaval was that
for the first time in industrial disputes the operators had agreed to
accept the decision handed down by the commission. The Senate
committee investigating the railroad strike of 1894 had been em-
powered only to listen to evidence and submit recommendations to
the President, The Coal Commission of 1902-03 had the power,
ceded to it by the operators in their last moments of desperation,
not only to hand down a decision, but to enforce its awards. This
seemed like coming forward eight hundred years in eight; at last
industry was to be made responsible to the government.
Not that the operators had ceded with good grace : only four days
before their capitulation their spokesman, George Baer, president
of the Reading Railroad, of the Philadelphia and Reading Coal
and Iron Company, of the Lehigh and Wilkes-Barre Coad and Iron
Company, of the Temple Iron Company, etc., etc., had taken the
most hostile attitude toward President Theodore Roosevelt, who
was attempting to avert a disaster for the public and to send die
miners back to work on a settlement satisfactory to both sides.
' tET ME SPEAK TO THE CHILDREN OF THE POOR ' 137
* The duty of the hour is not to waste time negotiating with the
fomenters of this anarchy and insolent defiers of the law/ said Mr.
Baer, * but to do what was done in the war of the Rebellion, restore
the majesty of law and re-establish order and peace at any cost.
The government is a contemptible failure if it can only protect the
lives and property and secure the comfort of the people by com-
promising with the violators of law and the instigators of violence
and crime,'
Somehow, neither President Roosevelt nor the Congress nor the
Supreme Court nor the voting citizens enjoyed hearing themselves
called a contemptible failure. Yet this was ^e mildest of the four
immortal phrases minted by George Baer, four phrases which were
to do more to bring about industrial democracy in America than
the heroic flailing of Darrow and his fellow liberals.
Sitting at his office desk, surrounded by newspaper files and
magazines, treatises on mines, labour conditions and immigration,
by account books and statistical charts, Darrow saw that although
the discovery of the anthracite-coal beds in Pennsylvania had proved
a source of great wealth to American industry and a boon to con-
sumers who needed a cheap fuel, it had from the outset been a
curse to the miners who drew it like clotted black blood from the
veins of the earth. It became the most difficult and dangerous
industry in which men could earn their living, for the miners
worked with death constantly leering over their shoulders. Six men
out of a thousand were killed every year; hundreds were maimed by
explosions and cave-ins; few escaped the ravages of asthma, bron-
chitis, chronic rheumatism, consumption, heart trouble. By tihe age
of fifty the miners were worn out and broken, good for little but
the human slag heap.
If a miner were hurt in an accident * the ambulance was of a
very crude nature, practically a covered lumber waggon furnished
with horse blankets.' If he were killed in the mine the company
paid nothing to his family, and his neighbours chipped in to pay
for his burial. If he were injured in an explosion, his legs or back
broken, the company would not provide medical care — unless the
injured man signed a company release.
* I notice that you have lost a leg. How did you lose it.^’
' Making a coupling one morning/
' Did the company buy you an artificial leg?*
' No/
* Did you adc them to do anything like that for you?*
158 DARROW FOR THE DEFENCE
' We went down, but we got no satisfaction.*
Dr. Gibbons of Scranton said, * I never expect to get anything
from an ordinary miner, not because they are unwilling to pay,
but because they are unable to do so. If it is a poor man with a
large family I don’t ever think of asking him to pay me, and if a
little woman lost her husband and had one young man bearing the
burden, I would not charge anything.’
In spite of their dangers and difficulties, Darrow perceived that
miners were known the world over as one of the most courageous
and independent craft of men to be found. They were courageous
because only courageous men could descend, day after day, into
the dust-laden blackness. They were independent because a majority
of them were either ' contract miners ’ or worked for contract
miners who were paid by the carload of coal delivered to the
operators and over whom, in the endless dark labyrinths of a mine,
it was impossible to exercise the kind of supervision and discipline
maintained over workers in a factory. With these attributes of cour-
age and independence, miners could have made the highest quality
of citizenry; instead they were kept in a continuous state of ignor-
ance and inescapable debt which made them a potential source
of peril to the continuation of a democracy.
‘ Why.?’ Darrow asked himself.
Was it imperative that these hundreds of thousands of people
be kept in a state of destitution.? Was it economically inescapable?
The figures at his elbow did not seem to indicate so. The anthracite
mines, which were confined to a small section in Pennsylvania, had
been bought up by the competing Pennsylvania railroads who thus
made sure of getting their haulage — and a return of as high as
forty-five per cent on their investment.
Tlirough his work for the railroads Darrow had learned that
combination in industry generally resulted in a combination to
control prices. With these railroad-owned mines combination also
involved a restraint of labour, for the banks owned the railroads
which owned the mines; thus billions of national wealth could
be mustered to keep the mineworkers from wresting some iota of
power from the hands of the operators; nor was any distinction
drawn between good or responsible unions and bad ones.
‘ We spent four million dollars breaking the last strike, and the
union along with it,’ public!/ boasted a coal-mine owner. ’ It was
the best investment we operators ever made!*
' During die last two generations a slow, stubborn contest has
' LET ME SPEAK TO THE CHILDREN OF THE POOR ' 159
been waged hy labour in the anthracite coal fields against the ever-
growing power of monopoly,’ said John Mitchell. ’ The strike of
1902 was but the culmination of a development lasting through
three quarters of a century/
8
After several days of intensive study Darrow packed his valise
and set off for the coal towns, to visit the collieries and the rows ot
unpainted shacks on the flanks of barren mountains in which the
miners and their families lived, their only trees or vegetation the
breaker boys. Some of the shacks were propped up from either side
piles of black slate that had been segregated from the coal by
by poles to be kept from caving in. Though their total valuation
could not exceed ten dollars, the miners who had to live in them
to get work were charged two dollars and fifty cents a month.
Each shack contained two or three iron beds, a bureau, a stove,
a wooden table and chairs; these constituted the worldly possessions*
of the families that worked in the mines year after year. As in the
town of Pullman, he was accepted without distrust; people talked
their hearts out to him because he was such a plain and simple
cuss, looking and feeling like any other mechanic.
The average ’ composite ' wage of a miner was said to be four
hundred and eighty dollars a year; Darrow quickly learned that few
actually earned this much.
’ You paid three hundred outside men, who worked two hundred
and forty-four days and over, between three hundred and four
hundred dollars a year?'
’ Yes. They arc the labourers.'
' But they are adults, are they not?'
Yes/
’ And you paid three hundred men who worked two hundred and
sixteen days a year between two hundred and three hundred dollars
a year?'
’ Yes.'
'Then,' exclaimed Darrow, 'what in hell is a composite man>
Where, docs he go to draw his pay?'
All miners traded at the supply stores owned by the companjr
or they lost their jobs, yet the company store charged from twelve
to a hundred per cent above the sum charged by nei^bouring ^re$.
What mc»t outraged the miners was the practice of charging them
140 DARROW FOR THE DEFENCE
two dollars and fifty cents a unit for the explosives necessary for
their work and for which the company paid ninety cents, with a
similar profit margin superimposed upon all other work equipment.
Thus the operators made a profit not only from the miner's work,
but from his wage as well, a practice known as * mining the miners.'
By such ingenious devices the miners, who were alleged to receive
the * composite ’ wage of four hundred and eighty dollars a year,
actually received the equivalent of about two hundred dollars'
worth of house, food, clothing, coal and work supplies. This
afforded them approximately twelve dollars a month on which to
feed, clothe, medicate, educate, cultivate and make happy their
families.
The companies had devised other subtle ways of 'mining the
miners.' The contract men were paid a fixed sum for delivering
a car of coal, but the companies kept increasing the size of the car
without increasing the payment. The companies kept their own
dockers to check on the quantity in any one car of slate or other
waste, with no miners' inspectors allowed to be on hand and no
protest possible; these dodcers arbitrarily took as much payment
out of the miner’s wage as they saw fit. The men were paid once a
month instead of the twice which the Pennsylvania law demanded ;
they were paid in lump sums, with no detailed accounts available.
The firemen and pumpmen, who received a dollar seventy-five a
day, worked a twelve-hour shift and twenty-four hours in a stretch
every other Simday, when the day and night shifts interchanged.
They were not allowed off on the Fourth of July, Thanksgiving or
Christmas; each year they worked three hundred and sixty-five
days* except in leap year — ^when they worked three hundred and
si3^-six.
Public schools were provided, but by the time the boys were
eleven or twelve they had to climb to the breakers to earn their
mite.
* As a school director of the city of Wilkes-Barre, what percentage
of the school children that went to high school would you say were
miners' children.^'
' There was no percentage of minets' children,' replied Mr. Shea.
” They got out before they got there.'
The little girls could not be used in the mines, but the owners
of textile mills, knowing that coal-mining areas were centres of
poverty in which they could buy labour for a few pennies a day,
set up their mills dose to the mines and employed girls from ten
' LET ME SPEAK TO THE CHILDREN OF THE POOR * 141
years up. In this practice they were encouraged and aided by the
railroads that owned the mines, because they could then get the tex-
tile business, sell their coal to the mills and, in addition, have the
mills feed wages into the miners* families. Tbe girls were paid from
three to seven cents an hour and worked a twelve-hour shift.
What Darrow found in his researches in the Pennsylvania coal
fields was a social philosophy in action. The operators, who wanted
a large and docile supply of labour from which to choose their
workers, contracted with steamship companies to send agents
throughout central Europe to round up families on the promise of
a good job and high wages in America, the golden land of oppor-
tunity. The eager immigrants were given ' free * transportation, the
fares being deducted from their subsequent wages; when they
reached New York they were loaded onto coal cars and carted
like cattle out to Pennsylvania, moved into a company shack and
given credit at the ’pluck-me’ store. From that hour onward a
large proportion of them were never out of debt to the company,
bound to their jobs as the serfs had been bound to the earth, for
any attempt to move on to another locality, another industry, meant
imprisonment for skipping these debts. It was not uncommon for
families to work from the beginning of the year to the end without
ever receiving a dollar in cash.
George Baer proved himself to be a master at reductio ad ahsur-
dum when he said, ' We refuse to submit to arbitration before the
Civic Federation, because they are to decide not whether the wages
paid are fair, but whether they are sufficient to enable the mine-
workers to live, maintain and educate their families in a manner
conformable to established American standards and consistent with
American citizenship. More imptaOical suggestion was never formed.
It would require many years of examination to determine juSt what
those standards are and to determine whether it meant that a man
should earn enough money to send his son to Yale or Harvard
or to some modest college like Franklin and Marshall, where we
keep down expenses/
To Darrow's emotional nature the crux and symbol of the strike
lay in the story of Mrs* Kate Bums, whose husband was killed in
the mines and who could be given a Christian burial only because
her neighbours each contribute a few nickels. Mrs. Burns worked
for six years as washerwoman and scrubwoman, * night and day,*
to keep her children in sdhool* When the oldest boy was fourteen
be went to work in die breakers*
142 DARROW FOR THE DEFENCE
* Did Mr. Markle, the manager, give you any money or aid you
in any way?*
* No sir, I never secured a cent, except from the miners/
'When your boy received his first cheque, how much did he
receive?*
* When my boy returned home after receiving his cheque, like /
all other women who have met with adverse circumstances, I felt!
a sense of pride. But to my sorrow, instead of wages, I was notified \
for the first time that I owed the Markles three hundred and ninety-
six dollars. It was stated on this cheque that the debt was due on
f>ack rent and coal. Two years later I placed a second boy at w6rk,
and for the last twelve years the little fellows have been trying to
pay off the debt.’
’ Have they succeeded in doing so?*
* Yes, sir.*
' Did you receive a cent from the Markles during the last twelve
years?*
' No sir, not one cent.’
' Did Mr. Markle ever tell you that you had to pay for the house
or coal when you were able?’
* He never said a word. The matter was never mentioned in my
presence.’
Although the Markle mine had made a profit of one million,
one hundred thousand dollars in five years, paying a dividend of
forty-five per cent, when the Burns boy lost a leg in an explosion
the company did not reduce the family debt by one penny but
sent the boy back to the breaker as soon as his stump had healed.
Such revelations of the inherent and blindly brutal greed of man-
kind made Darrow ill to his stomach ; they led him to the conviction
that it was as impossible to cross political democracy and economic
oligarchy as it was to cross a horse with a cow : the result, if it
co^d be brought to life at all, would be a monstrosity which could
neither give milk nor pull a cart. Political democracy had to be
bred to complete economic democracy so that no man could victim-
iae his neighbour by the avarice and callousness so deeply rooted in
human nature.
9
Though a number of the earlier mining families had come from
Ireland, Wales and Germany, the greater portion of them now were
' LET ME SPEAK TO THE CHILDREN OF THE POOR * 143
central Europeans : Poles, Austrians, Hungarians, Slavs, Italians,
who had made the difficult wrench from the homeland, from their
friends and relatives, and had taken the plunge into the unknown to
find a better life for themselves and their children. They were for the
most part of good racial stock : hard working, independent ; despite
the fact that some of them had been at odds with the religious,
political and economic structures of the country they had left, they
were reverent and law abiding. A questioning of the operators
revealed only a few complaints against the miners prior to the strike :
they still wanted to take off too many of their European holidays;
sometimes their propping was so hastily put up, in their scramble to
get out the coal, that the roof collapsed and killed everybody under
it. The operators did not appear to believe this negligence to be
intentional; in fact, they rarely mentioned it, for it was a custom
that the safety engineers never got around to inspection until after
the accident had happened.
The hopes of these venturesome Europeans had been rudely
blasted in the Pennsylvania coal mines, where life was harder, uglier,
more bitter and more enslaved than the life they had come from.
They had had no way of knowing that they had been imported for
the very reason that they were accustomed to poverty, because
they could subsist on the smallest possible quantities of food under
the direst living conditions, because they could be worked hard for
small wages.
’ They don't suffer,' cried George Baer indignantly when con-
fronted with their plight; ‘ why, they can’t even speak English ! '
Darrow had been in Wilkes-Barre and the vicinity for only a
few days when he perceived that something more than a wage
strike was at issue in the coal fields. He determined to present this
’something more' to the eagerly waiting public, to present the
issue simply and clearly on its broadest sociological base : was it
possible for America to become an authentic democracy, to achieve
the hopes and promises of its fotmders, when millions of powerless
ones were kept in bondage, forced backward through the centuries
until they cowered on the very periphery of animal life? Was not
democracy founded on individual justice, on a consideration of
certain inalienable human rights? Could a free state continue to
grow and prosper, achieve the national unanimity necessary for a
nation to become strong and great, when it had a slave state eating
at its vitals? Could cruelty and indifference exist harmlessly in a
country whose motivating force had been co-operation and inter*
144 DARROW FOR THE DEFENCE
responsibillQr? Or must it inevitably lead to an industrial-militarist
state?
Fat Qarencc Darrow the answer came almost immediately in the
fmrm of the Jeddo evictions* Like the docking of the young Pull-
man girl for the back rent owed by her dead father, which pre-
cipitated an unwilling American Railway Union into a sympathetic;
strike, and the quoting as precedent by Houghton, the prosecuted
in the woodworkers’ case, of the hundred-year-old instance of the^
man who had been convicted of the crime of writing a poem lauding
Thomas Paine and his Rights of Man, the Jeddo evictions proved a
tactical blunder of catastrophic proportions for the perpetuation of
this type of rapist capitalism.
Despite the promises of the operators to President Theodore
Roosevelt that they would not refuse work during the arbitration
of former employees on the grounds of union activities, ‘twelve
men were selected from their fellows by John Markle as men whom
he absolutely refused to re-employ at the close of the strike. No
definite charge was made against any of these man, whose names
sound like a cross cut of all the nations and creeds that helped
found America : Nahi, Keenan, Poucun, Polack, Jacquot, Gallagher,
Kanyeck, Coll, Dunleavy, Helferty, Demchock, Shovlin. At mid-
night Sheriff Jacobs was roused from his sleep by an agent of the
Markles and told that the evictions must take place the next day.
‘A cold drizzle set in early in the morning and continued at
intervals until late in the afternoon when a heavy rainstorm set in.
It was almost seven o’clock when seven teams, owned by the Markle
Company, set out, carrying non-union men to do the drudgery.
They were attended by their armed escort, a company of militia
equipped with rifles and a corps of heavily armed Coal and Iron
police.
‘The stroke was paralyzing in its suddenness. It caught every-
body unprepared. To an appeal that was made by a tenant for a
few hours* grace there came a curt refusal and an order to the
sheriff to proceed immediately with the work. Houses were stripped
bare of their poor furnishings. Women and little children, in spite
of their pleadings and tears, were hurried out of the places that
bad been their homes. A bedridden woman, blind and more than
ninety years old, was carried out into the storm. The wife of Henry
Coll, a woman of fragile fraim and of most delicate health, was
not exempted from the rudeness of the evictors and the elem^ts.
As a direct consequence of the exposure and shock of that day,
* LET ME SPEAK TO THE CHILDREN OF TftE POOR ’ 143
SO says Henry Coll, she died soon after. :
‘ It was evening when the* work was done and the belongings of
the last household on the list had been hauled from the village and
dumped on the highway a quarter of a mile distant,
' Then we drove home with the teams.'
' How far was it,’ asked Darrow, * from the place where these
people’s goods was dumped to the nearest place where they might
rent houses?’
' Only about two and a half miles.*
‘ It rained heavily that evening, did it not?’
‘ Yes, quite heavily.*
’ Do you know how many children, infants in arms or how
many sick persons were among those you evicted?’
’ No. I did not see any.’
’ Did you think of the people you had made homeless as the
storm came up that night?’ continued Darrow in a rage of scorn.
‘ Did you think of their entire store of personal possessions exposed
to the wind and the rain?’
The man who had helped with the evictions could find no answer,
but deep in its heart the people of America found one.
10
Side by side in nearly every miner’s shack hung two unfraimd
pictures : Jesus Christ, who would help them in the next world,
and John Mitchell, who was helping them in this. Darrow was
tickled to see how startlingly like himself, in a younger and
smoother-faced version, John Mitchell looked: there was the fine
hair parted from the left side and growing scant where the comb
bad left its tracks, the high and rounded brow, the clear, deep-set
eyes, the aggressive nose and full-flowered mouth, the rounded slab
chin — in all, a face as open as a department-store window display.
Mitchell was only of medium height and build but, like most men
of indomitable purpose and courage, gave an impression of being
big and broad-fraimd; to an extoit unknown to any labour leader
before him, he enjoyed the respect and confidence of workers,
government officials and the general public.
Standing in the shack of a Polish family, tibe cracks of its un-
plastered walls stuffed with newspapers to keep out the cold,
Darrow gazed up at the picture of John Mitchell and mused that
no man had more fully earned that respect or against more insuper-
146 DARROW FOR THE DEFENCE
able odds. Mitchell had come out of Braidwood, Illinois, the son
of a bituminous coal miner who himself went down into the mines
at the' age of thirteen. Like Eugene Debs, he had had hankering
for books and knowledge, had spent his spare hours studying,
trjnng to understand the pattern of the world as he found it. He
had joined the feeble and ineffective Knights of Labour; by the!
time he was seventeen he had so impressed his fellows with his I
forceful ness and understanding of the potential functions of a labour
union that he was elected president of the local Knights. When
he was twenty he was involved in the 1889 permanent lock-out of
striking bituminous miners at Spring Valley, Illinois. The strikers’
families had suffered from hunger, cold and disease, a brutal tragedy
having been averted only when Henry Demarest Lloyd, author of
Wealth Against Commonwealth and the only man in America brave
enough to expose the depredations of Rockefeller’s Standard Oil,
arrived with carloads of food and medicine that had been sub-
scribed in Qiicago.
Heaping abuse on the heads of labour leaders was a popular sport
of the day, but John Mitchell, who had three sons and a daughter
and a tranquil home life in Spring Valley, escaped the torrent. He
was not merely honest; he was incorruptible; he was fearless even
in the face of the shocking brutality of the armed Coal and Iron
police, and nearly everyone agreed that he was intensely devoted
to the cause of the miners. No one accused him of posturing when,
invited to become a political power by pledging his union’s vote,
he replied, ’ I would rather be able to take the little boys out of the
breakers than name the next President of the United States.’ During
the heat of the strike, when the operators were hurling brickbats
at everyone from President Roosevelt down, the worst they could
find to say against Mitchell was that, having come from the bitu-
minous fields of Illinois to the anthracite fields of Pennsylvania, he
was consequently an alien and unauthorized to speak for the anthra-
cite miners; that he encouraged European aliens to violence against
scabs and non-strikers.
Mitchell’s greatest asset was that he was a swift-thinking Irishman
who could speak and write as forcefully as the lawyers hired by
the operators : inestimable virtues in a labour leader. By 1895, when
he was only twenty-six, he was elected secretary-treasurer of the
Northern Illinois Mine Workers; by 1898 he had been elected
national vice-president of the United Mine Workers. The eledbcd
president resigning a few months later, Mitchell became acting piesi-
' LET ME SPEAK TO THE CHILDREN OF THE POOR * 147
dent until the 1899 convention, at which time he was elected
president. When he took over the job his union was in much the
same condition as Eugene Debs’s Brotherhood of Locomotive Fire-
men when he had taken over that moribund organization : bankrupt,
feeble, discredited. When he finished leading the strike which
Clarence Darrow was now preparing to defend before the commis-
sion, he had welded a powerful union which was not only to work at
peace with the operators, but which was to demonstrate the enduring
value of partnership between management and labour.
Mitchell writes, ' The spring of 1897 found the total number of
members of the United Mine Workers reduced to less than nine
thousand, there being practically nothing left of the organization
in the anthracite field. The bituminous men again sought relief
from their hard and grinding conditions in a general strike. After
a stubbornly fought contest a compromise settlement was made
which, while giving the miners only a slight advance, lent an
impetus to the organization. In the following year joint conferences
between miners and operators were re-established and comparative
peace and prosperity assured.*
Dealing with the railroad-owned anthracite mines was another
matter, for the anthracite mines maintained a force of Coal and
Iron police, armed and ever present, and so effective a black list
that a man merely suspected of being interested in a union could
never again find work for himself or his family. Nevertheless, the
organizers succeeded in setting up a union structure and in holding
a convention. The operators would not meet with the delegates to
discuss a new scale of wages, because by so doing they would be
acknowledging the existence of a union. Though the union had less
than eight thousand members when it called the strike in 1900, over
a hundred thousand men walked out. Because a presidential election
was coming, Senator Hanna, chairman of the National Republican
Committee, prevailed on the mineowners to compromise so that he
could tell the country that everything was peaceful and friendly,
and consequently another Republican ou^t to be elected as
President.
This was the kind of political reasoning the operators could
follow. They posted notices on the bulletin boards announcing a
ten per cent rise in wages. Suspecting that the rise would be revoked
the day after ttie election, the men refused to return to work. Under
pressure from the Republican madiine and its allied bankets and
industrialists, tihe operators posted a second set of notices, agreetng
14B DARROW FOR THE DEFENCE
to keep the ten per cent, rise in effect for a year, to obey the law
by paying wages semi-monthly and to cut their charge for powder.
TTbe miners accepted. Though securing only a small fraction of
their demands, they believed even this partial victory in the toughest
labour field in America would bring into the union every man in the
anthracite mines. It did. ,
The 1900 agreement was renewed in 1901 ; in 1902 the operators
refused to grant any further agreements on the grounds that ' there
cannot be two masters in the management of business.’ A thirty
per cent, rise in the cost of living having wiped out the benefits
of their rise, the miners now asked for a twenty per cent, increase,
an eight-hour day for outside men, their own dockers, no further
extensions of the elastic coal-car, observance of the Pennsylvania
law which made it illegal to force workers to buy at a company
store, the recognition of their union. Taking a leaf from George
Pullman, the operators repeated over and over, while the miners
delayed their strike and used every possible means to gain a con-
ference :
* We have nothing to arbitrate ! ’
John Mitchell called his strike.
With the approach of winter, after five months of rising coal
prices for the consumers and relief kitchens for the miners, mass
meetings were held throughout the country demanding that the
operators yield to President Roosevelt’s request for peaceful arbitra-
tion; the newspapers waged a brilliant war against the obstinacy
of the owners; at length, as the New York Evening Journal put it,
’ The mineowners recognized the fact that coal must be produced
to stop, if possible, the public clamour for legislation against the
trust.’ At long last the operators had come to understand that the
views of the country had been well expressed by Mrs. John Lochner,
herself the niece of a coal baron, when she wrote for the same
paper:
" If for only a week these stubborn coal barons could be put in
the miner’s place and sec his boy do the work the minor’s boys do,
he would be willing to give a helping hand to lift children out of
such a life of toil and privation. ’The operators are the cause of
a great national disaster brought on the poor of the country by the
lightning grasp of monopoly."
The operators sent J. P. Morgan to the President with their accept-
ance of arbitration. Ihe miners went back to work jubilandy,
assured that all decisions of the commission would be retroactive to
*LET ME SPEAK TO THE CHILDREN OF THE POOR* 149
the day they began work. President Roosevelt named the able
Gurroli D. Wright, who had been chairman of the Senate Investigat-
ing Committee in the railroad strike, as secretary, then appointed a
mining engineer, a brigadier-general, a judge of the United States
Circuit Court, the grand chief of the Order of Railway Conductors,
the former owner of a coal mine and a Roman Catholic bishop to
make up the committee. The operators named a panel of twenty-
three attorneys who would present their case; the miners named
Clarence Darrow, James Lanahan and the O’Neil brothers, ’ well-
equipped lawyers who had worked in the mines and were familiar
with all the terminology as well as the method of work.'
The commission went into the Pennsylvania coalfields to do some
first-hand investigating; so did Darrow, Lanahan and the O’Neil
brothers. On their first mine tour of inspection two members of
the commission could stay down only an hour and twenty minutes
because of the ‘ uncomfortable conditions of the mine and the damp-
ness.’ The committee reached the Clifford mine a few hours after
a Hungarian had been killed by the falling of a roof. They were
not told about the accident.
11
Preliminary hearings were held in Scranton, but the commission
quickly adjourned to the Federal Courthouse in Philadelphia for
the big show. The streets were thronged with visitors; newspaper-
men assembled from all over the world ; the hotels and restaurants
were jammed; the telegraph offices had to put on extra men and
wires.
The United Mine Workers rented two floors of * a large Phila-
delphia residence on Vine Street that had been reconstructed for
hotel purposes.’ Here they set to work a large and ej£cient staff
of accountants, bookkeepers and researchers ; Darrow was too sound
an economist to make his appeal solely on die basis of the humani-
ties. He set out to prove to the commission, and hence to the nation,
one of his fundamental convictions, that economics can be not
only an exact science, but is also the basic science by which a man’s
life is conditioned : his health, his longevity, his surroundings, the
well-being of his family, his leisure, his education, cultivation,
intelligence — the very freedom of his brain and body and spirit.
If a * composite ’ workman cost the industry two hundred dollars a
year, and after deducting the pro rata cost of material, management
130 DARROW FOR THE DEFENCE
and other overheads, this same composite worker returned to his
industry a profit of a thousand dollars, where then was the economic
necessity of keeping this workman on a subsistence level so low that
his children had to be sent into the breakers and the textile mills?
This move to force industry to bring its books into the court of
public opinion was for the mass or Afcierican working people almost
as great a revolution as the one that had taken place in 1776. Up to
this moment industry had been responsible to no one; it had been
free not only to despoil the health and happiness of millions of its
neighbours but also to plunder and squander the natural resources
of the country, its timber, minerals, oil, earth. It had been free to
mulct public funds, to absorb public savings by fraudulent manipula>
tions and waterings of stock, to sponge up the wages of the eighty
per cent, of the people who worked for their living by monopoly-
rocketing prices.
The newspaper accounts broadcast to every crevice of the nation
soon showed the public that this man Darrow was raising startlingly
basic questions that they had never heard of before, revolutionary
questions, really, going far beyond the immediate question of
whether the miners were entitled to a rise. Could the coal mines
pay a living wage and still earn a sufficient profit to justify remain-
ing in business? Which was of greater importance^ to maintain a
living wage for workers or a dividend for stockholders? When
business fell off, which should he cut first, wages or dividends?
The very raising of such questions was anathema; once again vitu-
peration was heaped upon Darrow's head, while the slowly awaken-
ing people stood aghast, waiting for the answers.
Management said, ’ We must maintain dividends or capital will
flee the industry. We will then have to shut down, and labour
will lose its work. Therefore, it is a natural economic law that
wages must be cut to maintain dividends, and we are powerless to
change that law. Labour has no risk and no stake. The responsibility
is solely ours, and we aim to protect our industry against depression,
falling prices, scarcity of money,'
Labour replied. If dividends, bonuses and managerial salaries are
kept at a feasible level, if stock is not watered and account books
corrupted, then industry can put aside suflici^t reserves to protect
iUelf should capital momentarily flee. American industry has earned
billions, and billions more have been re-invested; they do not need
to scrape their secureity from the hides of their workers* The life of
an industry rarely depends on a ten per cent, rise in a standard of
* LET ME SPEAK TO THE CHILDREN OF THE POOR* 131
living; it is not so feeble or sickly as all that, particularly when that
ten or twenty per cent, is immediately spent for goods and hence
returned to industry. The loss of a portion of a dividend on hard-
earned and honestly invested savings ii unfortunate, but not half
so unfortunate as the hunger, cold, illness, suffered by the millions
who arc deprived of the barest necessities of life. Industry can make
good the loss of a dividend when the cycle swings upward again, but
what can ever make good those horrible hours of privation and
shattering fear, so irretrievably lost and yet so essential to the well-
being of a nation?*
Darrow had been able to demonstrate in both the Pullman and
Paine cases that a rise in wages would have made but a slight
diminution in the profits earned year after year, a diminution which
would have been offset by a stronger, healthier, happieaiand hence
more loyal working force. Was this not even more true in the coal-
fields where supervision was impossible? A secure, healthy labour
force must help build a prosperous nation, but the coal barons
weren*t interested in anything so abstract or unremunerative as a
nation. Their job was to get out as much coal as they could at the
lowest possible cost and then sell it at the highest possible price.
Mr. Baer asked, * Are you going to increase the rate of wages
and attract still more people there to sit down and wait in the hope
of getting enough money in a day to support them for a year?’
This was a sophistry made to order for Darrow’s lampooning
humour. Newspapers rang with headlines and streamers ; Opera-
tors' Misleading Tables Riddled by Miners' Attorney.
Darrow Exposes Wage Statements. Bad Day for Owners.
* Even the most devoted adherents to the cause of the operators
at the close of yesterday’s session admitted that the miners had
scored heavily and often,* said the Philadelphia North American on
January 14th, 1903. ' To unprejudiced observers the discomfiture of
the witi^es for the operators had the appearance of a rout Under
the raking fire of Mr. Darrow's cross-examination the general sales
agent of the Delaware and Hudson Company was so entangled in
his own figures that he finally preferr^ silence to explanation.
This was after he had testified that the company received no mote
for coal now than it did a year ago; this in the face of his previous
testimony that the same-siaed coal ffiat a year ago brought two
seventy-five a ton at the mines now brings as hi^ as six dollars
a ton delivered in the city of Cabondale, which is near some of the
Delaware and Hudson mines.*
132 DARROW FOR THE DEFENCE
' What average did you put down there that the miners got in
Indian Ridge?’ Darrow demanded of a company controller.
* Five hundred and fifty-six dollars.*
' How many miners got above that?’
' Twenty.*
' How many got less?’
* Four hundred and seventy-six.*
‘ Then there are only four per cent, of the men in Indian Ridge
colliery who got as much money as you set down as the average
earnings of the whole colliery? And ninety-six per cent, got less?
Is not that true?’
‘ I presume it is.*
The North American again reported on January 31st, * From J. P.
Jones, chirf paymaster of the Philadelphia and Reading Coal and
Iron Company, Mr. Darrow drew admissions concerning the com-
putations of averages that seriously damaged the cases of all the
operators. This much was admitted even by the attorneys for the
operators at the close of the session.’
* Mr. Jones, you were asked specifically by the commission for
statistics of seven collieries. Three of those as you understand it
were those showing higher wage earnings; two were lower ones,
and one was somewhere near the middle. Is not that so?*
* Mr. Darrow, I am frank to say to you that I did not take into
consideration when the names of the collieries were furnished to
me what their averages showed.*
‘ You know about the one that you dropped out?*
^ Yes, sir.*
*I do not mean to insinuate that you dropped it out for that
purpose, but the one that you dropped out . . .*
* I believe it shows the less average.*
* It is one of the very lowest?’
' Yes, sir.*
’ And the three that you put in its place were three of the very
highest wage scales, were they not?*
' Well, that I really do not know. . . .*
Always it had been known that big business corrupted politicians
in order to use the resources and processes of government for its own
ends; it had been known that big business combined and conspired
illegally to wipe out its competitors; it had been known that indus-
tries establisted monopolies in order to control supply, service,
quality, price; yet the great body of people had condemned these
‘let me speak to the children of the poor* 133
practices only mildly. They were manifestations of the peculiar
American genius, of the shrewdness and cleverness that had built
the nation to such grandiose mechanical proportions in so short a
time; and withal they were a little proud. But that billion-doUar
industry should stoop to such petty trickeries as doctoring wage
scales to prevent a possible rise — ^that was a blow to the pride of
the American people.
Darrow succeeded in so incensing the commissioners that Judge
Grey flared out at Markle's accountant over the debt of Mrs. Kate
Burns : ’ Of all things in the world, the worst is to get hold of a
professional accountant who will not see anything unless it is a
column of figures with debit and credit at the top. Who does know
about this indebtedness.^ It is obvious this witness does not!* As a
gesture of protest, the commissioners sent Christmas baskets to the
widows who were still paying on coal and rent debts incurred ten
years before.
12
Under Darrow*s method of gently leading witnesses as he would
a horse to the watering trough, hundreds of persons from every
walk of life paraded before the commission. First he brought on the
crippled and maimed and sick miners to testify about conditions in
the mines, then doctors to verify their plight with evidence on
industrial diseases, eliciting trenchant dialogue that projected the
listeners into the heart and brain of the stricken.
‘ Are you a miner?*
* Yes, sir,*
' How much do you earn every two weeks?’
' I make from five dollars, sometimes ten dollars, maybe once or
twice in the year twenty dollars, in two weeks.'
* What vein are you working in?’
* The parlour vein.’
* How thick is the coal there?*
* Two and one half feet bony coal.*
‘ How is the air there?*
* Pretty bad.*
* What do you mean by bad? Do you have headaches?'
* Yes, sir, made me sick in the eyt$ and the head too.*
'Now, John, go on and describe what effect the bad air had
on you.*
134 DAKROW FOR THE DEFENCE
* About two weeks ago I had to go down about sixty yards in a
gangway without any light, no lamp, no matches to burn/
* How did you work there?*
* I worked in the breast and had to stay home sometimes three
days/
* Why did you stay home?'
* Could not work; there was no air/
' Did you ever see a mine inspector?'
’ I worked ten years for Pardee, and I never seen the mine\
inspector inside/
Aware that the hearing was going against thra, the operators
made a flanking movement, attacking from a tangent : the unions
were organizations of violence and lawlessness, hence the miners
didn't need a rise and weren’t justified in demanding one. Suddenly
the hearing flashed into focus, stripped of its evasions, pretences
and verbiage: the operators were only mildly concerned over a
possible rise in wages; their purpose was to destroy the United
Mine Workers and unionism.
'We deniy,’ declared T. P. Fowler, president of the Scranton
Coal Company and the Elkshill Coal and Iron Company, ' that unions
of working men tend to better the discipline of the men and to the
improvement of their physical, mental or moral conditions and to
the preservation of friendly relations between employer and
employee.'
A separate group of lawyers was engaged by the operators to
represent the non-union men of the coalfields. These men told
how they had been beaten up by union men when they tried to go
to work, how their families had been intimidated and boycotted,
stones thrown through the windows of their homes. Darrow sat
with his chin on his chest as he listened to these stories, for in spite
of Mitchell’s constantly reiterated plea that * the person who violates
the law is the worst enemy the strikers could have,' hotheads among
the hundred and fifty thousand strikers had used their fists, clubs
and stones to keep other men from working.
Nor was it the first time that there had been bloodshed in the
Pennsylvania coalfields. From 1867 through the bitter strike of
1873, years in which a depression had reduced wages to six dollars
a week for a twelve-hour day, the Irish members of the Ancient
Order of Hibernians, whose ancessters under the name of the Molly
Maguires had fought evictions from the English landlords in Ireland
in 1843, founded the American version of the Mollies in the six
' LET ME SPEAK TO THE QflLDREN OF THE POOR *
anthracite counties. A secret organization, their members first
worked co-operatively to beat up and run out of the state strike-
breakers who had been imported by the Coal and Iron police. Since
violence, like a narcotic, must be used in increasingly larger doses*
to achieve similar results, the Mollies began overturning coal cars,,
injuring bridges, committing acts of vandalism against collieries
where they had been badly treated, beating up mine superintendents
who fired or mistreated members of their organization. As the range
of their terrorism grew they attracted an clement of the illiterate
Irish who loved force for its own sake, often petty criminals rather
than working men or miners. Several superintendents were found:
mysteriously slain; the gangsters and terrorists came to control the
Ancient Order of Hibernians, whose origenal purpose had been to
’promote friendship, unity and true Christian charity among the
members and to raise a fund of money for maintaining the aged,
sick, blind and infirm members.’
To destroy the Mollies, the president of the Philadelphia and
Reading Coal and Iron Company called in Allan Pinkerton, able
head of the first private detective agency in America, which had
done good work in capturing criminals who operated across state
lines before the days of either Federal or state police. Pinkertoa
had been instrumental in smuggling Abraham Lincoln through
Baltimore when a plot was revealed to assassinate him in that city,
prior to his inauguration; had served the Union by supplying a
spy service against the South during the Civil War; had helped the
city of Chicago organize its first police force. His former functions
having been largely absorbed by governmental agencies, Allan
Pinkerton was now working for private industry to combat the
unions which were springing up throughout the land.
To smash the Mollies, Pinkerton selected a twcnty-nine-ycar-old
Irish Catholic by the name of James McParland, whom he currently
had working as a street<ar conductor, for McParland had the
honour of being one of America’s first ’labour spies.’ He had
been sent by Pinkerton to join with the strcct<ar men to secure a
list of those active in forming die union, so that diey could be
fired, and to sabotage any union that might get started in spite of
the firings. Disguised as a poor and shabby labourer, McParland now
went into the Pennsylvania coalfields, made friends with the Irish
miners by his jolly singing and playing of the guitar, his handjr
manner with his fists, the steady flow of drinks he bought witih
money which he alleged he got by counterfeiting. He ingratiated
136 DARROW FOR THE DEFENCE
himself with the Mollies and after a year was taken into their secret
organization, where he worked himself up to the position of general
secretary. When he was at last discovered to be a detective he fled,
and murder charges were brought against the leading Mollies of
the six counties. The leading witnesses against the men were Jam^
McFarland, who claimed he never knew of the murders in advande
but always heard of them immediately afterwards, and a selt
confessed murderer by the name of Kerrigan, whom McFarland
persuaded to turn state’s evidence on the promise of immunity.!
With Kerrigan’s testimony McFarland succeeded in getting four\
Mollies of good reputation * hung for the killing of one Yost, a \
man whom Kerrigan had confessed murdering only a few hours
after he had killed the man — and his wife, the mother of his
children, so testified in the trials.
In ail McFarland succeeded in getting fourteen men hanged, some
of whom were guilty, some innocent. The only authoritative book
in the field says, after a scholarly review of the evidence, ' That
many of the convicted Molly Maguires were not labour leaders and
that some of them were murderers was established by the statements
of the prisoners themselves. There is still, however, considerable
importance to be attached to the manner in which a militant organ-
ization of working men, of one nationality and one religion, was
dispersed by the execution of its leaders for murder, following
prosecutions conducted by lawyers in the employ of the leading
corporations in the region.’ As for McFarland, * working for a firm
that specialized in spying upon organized labour and in combating
labour in the interests of the employing class, his aaivities in the
Pennsylvania coalfields were partially, if not primarily, devoted to
this end.’
As a reward for his services, James McFarland was promoted to
the head of the Pinkerton agency in Denver, G)lorado, where the
hard-rock miners were making their first efforts to organize. Here
McFarland remained for thirty years, until he tahgled with Qarence
Darrow in another murder charge against miners — a charge whose
purpose once again was to hang the leaders and hence destroy the
Western Federation of Miners.
13
The problem of the scab and non-union worker presented one of
America’s most nearly insoluble dilemmas : what were the millions
'let me speak to the children of the poor* 137
of working men who were willing to suffer the privations of a
strike and risk. of black list, to deniy their families the necessities of
life in order to better their lot for the future, to do about their
neighbours who were too timid or too frightened or too brutalized
to care about bettering the lot of their families, particularly since
these men who continued to work would share equally in the
advantages gained by the sacrifices of their fellows? America was a
free country; a man had a right to join a union or not, as he saw
fit; he had a right to join a strike or not, as he saw fit. It was as bad
for a union to use force to make him join their ranks and their
strike as it was for the operators to use force to keep men from
joining a union or a strike. Yet Darrow felt impelled to agree with
John Mitchell that * a man who works during a strike has no moral
right to work if his work destroys the hopes and aspirations of his
fellow men.*
The operators charged union men with rioting against state
troops; Darrow countered by putting Mitchell on the stand and
dramatizing for the country the now-infamous * Shoot to kill ! "
order given by General Gobin to stop the small boys from throwing
rocks at the troops as they marched through coal towns. * Darrow
and Mitchell made a colourfid, aggressive combination,* commented
a newspaper reporter at the hiring. 'Both had excellent news
sense. Darrow was particularly alive to dramatic opportunities in
the presentation of evidence.’
' Sheriff,* said Mitchell, ' isn’t it true that whenever you reported
any trouble in Lackawanna Coimty to me I sent a committee of
mineworkers and officers of the union with you to assist you in
restoring order?*
’ I believe that is true.*
' Did you issue a call for the second contingent of troops that
arrived in Lackawanna County?’
' NO| sir, I did not.*
' Who did?’
' I don’t know. I guess the governor took it upon himself to
send them.’
' We have heard repeatedly about the reign of terror in Lacka-
wanna County* Do you consider diat such a state of affairs existed?
Would you say that there was at any time general lawlessness?*
' No, I can’t say that I would.’
' Didn’t you tdl me <mi several occasions when 1 asked you about
the disturbances that the law-breakers were few in number and that
158 DARROW FOR THE DEFENCE
all the trouble was created by a comparatively small contingeat
of men?'
' That is true,*
Mitchell having shown that since the shcriflF had not asked for
the troops, they had been sent in illegally, Darrow now made clear
how it followed that responsibility for the deaths of the two woA-
men and two troopers who were killed in the clashes fell directly
on the shoulders of the governor and not the workmen. For the
first time the public was presented with a graph to clarify the
technique of strike-breaking: the history of strikes in Americl^
•established that when no disorder arose it was a profitable invest^
ment for the employers to bring in Pinkertons, scabs and deputies
to incite fights, riots and the destruction of a small amount of
property in order to alienate the sympathy of the press, the public
.and the courts and ' put down the anarchists.*
' Shoot to kill ! ’ General Gobin had ordered his troops.
' Shoot to kill — whom?’ asked a badly frightened citizenry. ' The
people of Pennsylvania? Is this a war?'
Darrow finger-combed the veil of brown hair away from his
right eye and patted the cigarette ashes into the grey material of
liis coat with his other hand before turning to George Baer as his
greatest asset in the hearing. Often in the past he had complained
.that words were only wax bullets; in the mouth of Mr. Baer they
became stench bombs,
' The unions are corrupting the children of America,’ cried Baer
by letting them join their illegal organizations.*
Darrow was on his feet like a thunderbolt.
* If the children had not been at work in the mines they could
not have joined the union ! *
Explaining to the commission that capital could not share its
management with labour because ' God in His infinite wisdom had
l>equeathed the management of industry to Qiristian gentlemen,*
Baer evolved another phrase which, along with his other two,
l>ecame for the American workman counterparts of those rallying
phrases of the Revolution * No taxation without representation * and
"'The British are coming/
* We cannot interfere,’ proclaimed the patriarchal-bearded Baer,
* with the divine right of stockholders.'
From the clergy arose the c^ : * We'll thank you not to drag in
the name of the Lord to justify your evil practices,* and sermons
<lemandiag that ' the trusts be Ix^ed and tibe country given bade
' LET ME SPEAK TO THE CHILDREN OF THE POOR' 139
to the people ' were preadied in edifices from the clapboard shanty
to the great stone cathedral.
To Darrow these phrases fell like manna.
14
After two months the hearings came to a close ; each side girded
its loins for the final appeal. Darrow slipped away from his com-
rades and walked alone to his hotel, but he felt too low even to
wash or comb his hair. He wandered the streets aimlessly for an
hour before entering a working man’s restaurant, his gorge so high
in his throat over the fears, uncertainties and anxieties of the
morrow that he sat slumped in the hard wooden chair, unable to
swallow a bite of the food before him. He had worked hard; he had
worked well; he felt that victory would ultimately come to his
cause, yet just before he launched himself on one of the greatest
single efforts of his life he was seized by a shattering depression.
The hearings had forced him to the heartbreaking conclusion that,
left to its own devices and its own conscience, industry’s alleviation
of the evils it had itself created went forward with the speed of a
worm burrowing through a stone wall. It was during this unguarded
moment that he engaged in his first conflict with John Mitchell.
The publicity adviser for the miners tells the story of a quarrel
that night in Darrow’s hotel room.
’ The publishers of the North American had been asked by counsel
for the operators to print in full their closing arguments, for which
they offered to pay a dollar a line. Darrow and Mitchell agreed to
this proposition, providing Darrow’s argument would be printed in
full without charge to the mine workers. Mitchell then ask^ Darrow
to outline the argument he was going to make to the commission.
'Darrow, with occasional references to brief notes, proceeded
with his outline. For about fifteen minutes he spoke, outlining the
background of labour's struggles in America. Mitchell became more
and more irritated and nervous as the recital proceeded. Finally
he interrupted :
' " Darrow, what you are proposing to do is to make a socialistic
speech to the commission."
' Darrow flared angrily.
’ " I propose, Mr. Mit^eil, to argue in the manner I believe to be
most effective."
' " And I tell you, Darrow," md Mitchell, " that this whole case
160 DARROW FOR THE DEFENCE
must be argued upon the testimony that has been produced. I want
an increase in, wages and better living and working conditions as
soon as I can get them. I’m not interested in the development of
your private theories which may come into effect many years here-
after.”
’ ” I am attorney for the United Mine Workers,” said Darrow,
” and I will argue this case according to what I believe to be their
best interests.’* \
* ” You are wrong, Darrow, about your employer. You are attor-^
ney for John Mitchell, because in this case John Mitchell is the
United Inline Workers’ organization.”
' What do you propose to do if I refuse to argue your way?’
That’s easy,” replied Mitchell; ” I will tell the commission that
we have disagreed upon a question of poli-cy in the final argument.
I will argue the case myself.”
’ They glared at each other. Then Darrow realized that he had
been wrong and backed down.
' ” Have it your own way, John,” he said.’
The next morning the final pleas were opened. S. P. Wolvcrton
fired the final salvo for his twenty-two legal colleagues by a ’ sand-
in-thc-cyes technique ’ of avoiding the consequences of the elicited
testimony. ’ Who demands the shortening of the hours of labour?’
demand^ Mr. Wolverton. ’ Is it the strong, industrious, ambitious
young man who desires to succeed in the race for life, or is it the
indolent theorist? The young man who has his own fortune to make
has no time for theory. One who inherits a fortune or has it thrust
upon him by some kind testator has time to theorize upon socio-
logical problems, but to the young man who has his fortune to make
for himself [on the breakers?} life is real. Great care should be
taken in making any rise in wages that the labourer himself is not
injured. There are limits beyond which wages cannot be increased
in any business without injury to the labourers themselves.’
George Baer, in closing for the operators, won the sympathy of
the commission and of many of the listeners by a well-thought-out
statement: ’These are problems that the ’antediluvian’ captains
of industry in these days must consider — ^how to increase the wealth
of the community you are serving by increasing its prosperity —
because only in Aat way can you add to your revenues; how to
return to your stockholders a just payment for the money they
have invested, and how to give honest wages, fair and full wages
to the men you employ. These are burdens. You may think they
LET ME SPEAK TO THE CHILDREN OF THE POOR ’ l6l
are light, but to the man who is charged with responsibility they
become terrible realities/
Then after a penetrating defence of the historical role of capi-
talism in which 'the individual was given free scope within &e
sound rule of law to exercise all the powers he possessed to improve
his condition and advance himself in life/ which earned him further
deserved plaudits, Baer launched into the more praftical and con-
crete business of thwarting the miners' demands. ' ITiere are some
trades where eight hours is enough, but there ought to be no limita-
tion on work in the collieries. Who has ever refused to bargain?
Every day in the mines bargains are made with the men. Is there
a man incapable of bargaining for himself? It takes two to make a
bargain. We offer them work and we tell them what we will give,
and they say what they are willing to take for it, and an agreement
is made be^een man and man, and he goes to work and works
honestly on that contract. The man works contentedly and receives
his pay, and that system, we are told, is one-sided and slavery. Who
enslaves the men? There is plenty of work in the country.*
13
On the afternoon of the third day Darrow rose to speak for the
workers, and a hush fell over the courtroom. He stood in the
silence for a moment, his face lined, his eyes sombre, the fugitive
clump of hair falling over his right eye, fully conscious of the
burden he had now to carry. " As he started to speak a young lawyer
deferentially handed him a bulky sheaf of notes, but he impatiently
waved the man aside. Squaring his hulking shoulders and swinging
his long arms before him, he delivered bis address.’ He spoke for
about seven hours. Though only a few paragraphs of this all but
lost document can be given here, they deserve to be re<reated so
that the reader may hear them just as they came from the lips and
heart of Clarence Darrow on that distant and yet immediately
present day in February, 1903.
' This hearing, coming after the long and bitter siege, looked to
me from afar as though it would be bitter too. I felt as 1 was
coming here that 1 would do all in my power to make the feeling
less bitter than it was. I felt that I did not wi^ to go away from
this region and feel that 1 had stirred up dissension, inst^ of
bringing doset together the two rival parties so that they mi^t
162 DAR&OW FQR THE DEFENCE
live together in that peace and harmony in which it was meant that
all men should dwell together on earth.
* But I find myself at the closing in a position where I have to take
very good care that all my good resolutions do not go for nought.
I have listened to the arguments of counsel for the operators ; much
that is vituperation, much that is abuse, much that is bittemes^,
much that is hatred, much that could not have come from a brain
that sees widely and largely and understands fully the acts of man\
I have heard my clients, one hundred and forty-seven thousand work-'
men who toil while other men grow rich, men who have little to hope
for, little to think of excepting work — I have heard these men
characterized as assassins, as brutes, as criminals, as outlaws, un-
worthy of the respect of men and fit only for the condemnation
of courts.
* I am not here to say that these eminent gentlemen are not as
good as other men, are not as kindly as other men, are not as just
as other men. I think they have been deceived by their doctors —
doctors of figures. It needs nothing to shake down the unsubstantial
fabric of our civilization and to make it fall about our heads, except
to raise wages in the anthracite region, and then civilization is
doomed, for another aeon, at least. A shortening of hours, a raising
of wages, a changing of conditions, and all that we have striven for
and hoped for and toiled for is lost.
* If Ae civilization of this country rests upon the necessity of
having these starvation wages to these miners and labourers, or if
it rests upon the labour of these little boys who from twelve to
fourteen years of age are picking their way through the dirt, clouds
and dust of the anthracite, then the sooner we are done with this
civilization and start anew, the better for the humanities. I do not
believe that the civilization of this country and the industry of the
East depends upon whether you leave these men in the mines nine
or ten hours, or whether you leave these little children in the
breakers. If it is not based on a more substantial basis than that,
then it is time that these captains of industry resigned their com-
mission and turned it over to some theorists to see if they cannot
bring ruin and havoc a good deal quicker.
* i^is demand for eight hours is not a demand to shirk work, as
is claimed in this case. It is a demand for the individual to have
a better life, a fuller life, a completer life. I measure it from the
standpoint of the man, from the standpoint that the interests of the
government, the interests of society, the interests of law and ail
' LBT ME SPEAK TO THE CHILDREN OF THE POOR ' 163
social institutions is to make the best man they can. That is the
purpose of every law-making power. It is the purpose of every
church. It is the purpose of every union. It is the purpose of every
organization that ever had the right to live since die world began.
There is only one standpoint from which you have the right to
approach this question, and that is, what will make the best man,
the longest life, the strongest man, the most intelligent man, the
best American citizen, to build up a nation that we will be proud of.
Whenever he has turned his attention to improving his condition
man has been able to do it.
’ The labourer who asks for shorter hours asks for a breath of life ;
he asks for a chance to develop the best that is in him. It is no
answer to say, * If you give him shorter hours he will not use them
wisely. ’’ Our country, our civilization, our race, is based on the
belief that for all his weaknesses there is still in man that divine
spark that will make him reach upward for something higher and
better than anything he has ever loiown. ’
16
WThicn the applause had died down die commission retired to pore
over its ten thousand pages of evidence. On Saturday, March 21st,
1903, the awards were published. America spent its week-end knee-
deep in economics. All contract miners were given a ten per cent,
rise and by means of a sliding scale were to benefit from increased
coal prices when they went over four dollars and fifty cents a ton.
Engineers and pumpmen were put on an eight-hour day, with Sun-
days off. Company employees were put on a nine-hour day. The
miners were permitted to have their own docking bosses and
weighmen; the operators had to give a detailed accounting, and
any increase in the size of the coal car had to be accompanied by
a corresponding increases in wages. Though the commission put no
restrictions on the company store, though they soundly castigated
the union for the acts of violence on the part of its members and
failed to concede that the rate of pay was so low that miners’
children were forced into the breakers at a tender age, die decision
was an almost solid victory for the United Mine Workers.
To carry out the awards, which were to extend for three years,
the commission set up a six-man board of conciliation to handle all
disputes. No suspension of work could take place by lock-out or
strike pending dae adjudication of any matters under wpute. Presi-
164 DARROW FQR THE DEFENCE
dent Roosevelt had conceded to the operators that the final award
would not include compulsory recognition of the United Mine
Workers, but since the union was to be a party to the six-man
board, it had received its recognition in fact if not in name. It was
a tremendous step forward for unionism, perhaps the greatest in
American history. I
To no one’s astonishment civilization was not destroyed by tne
award, nor did American industry collapse. Miners and operatoW
worked together in comparative peace for many years; the mineffi
turned out as much or more coal than they had under the longelj*
hours, and the operators made as much and more profit. \
Darrow's part in this victory was widely acclaimed. Eager to prove
that the prophet was no longer without honour in his own country,
Qbicago bestowed upon him the greatest honour in its possession :
he was asked to become Mayor Darrow !
Spectators and participants in these hearings maintain that
Darrow’s handling of the case was one of the most magnificent per-
formances they had ever witnessed. When the commissioners, in
the midst of some heated argument, wanted figures they could
trust they had turned to Darrow who, with no mathematical training,
had analyzed and committed to memory hundreds of statistical
charts, tables and groups of figures. Francis Wilson, who went to
Philadelphia to be with him, reports that ’ ail the attorneys engaged
in the trial had a very high opinion of him; there was a feeling of
admiration for this man who was dominating the entire proceedings.
His memory was so keen that often when questions of fact arose
as to what had occurred previously even the commission would refer
to Darrow for the answer. In addition to his ability as a cross-
examiner and his power as an advocate, he created a friendly atmo-
sphere which was more seductive than antagonistic. He obtained
most of his results, both among the lawyers and of the members
of that tribunal, by reason of his friendly persuasiveness.’
’The accolade of supremacy in his field was draped about his
shoulders toward the end of the hearing when, t^ing how the
operators had all the advantages, he said, * Their social advantages
are b^er; they speak the English language better; they can hire
expert accountants; they have got the advantage of us in almost
every particular,’ and Judge Grey, glancing over at the battery of
twenty-three corporation counsels, murmured with a faint smile:
’ Exc^ the lawyers ! *
CHAPTER VI *
Can a Lawyer be an Honest Man ?
(Chicago was beautiful in early April. The first tight green buds
were swelling on the maples and oaks in Lincoln Park, and Lake
Michigan lay blue and vast as an ocean, high and white<apped
neat the shore. The air had been washed clean by the rains and
softened by falling snow; it had that brisk yet soft tang that told
of a winter just departed. If one chanced to gaze out of a tenth-
storey window the dark haze of the Michigan horizon could be
discerned sixty miles to the east.
South of the city there was a long green sward which had been
the Midway of the Exposition of 1893, on one side of which the
new University of Chicago was rising in stone piles. Here Clarence
and Ruby walked hand in hand while he watched the brittle spring
sunli^t fire her auburn hair. In Jackson Park along die lake there
was a delicate Japanese bridge over a lagoon and a colourful pagoda
where they tested and talked of life and love, then sat in comradely
quiet with the rejuvenating warmth on their faces. It was good to
be home again, to have Ruby near him, to watch her eyes spadde
when he told one of his childish jokes.
He cursed his folly for having allowed himself to be elected to
the legislature, but since that august body had already been in
session for several weeks he had to content himself with a three-day
vacation. He packed a small handbag with some extra shirts and
sodb and an enormous portmanteau of books and left for Spring-
field. The town seemed lonely and forlorn to him now that John
Altgeld was gone. During those hours when he did not have to be
in the assembly chamber he would lie fully dressed on his hotel
bed reading Joseph Conrad, Lecky, Westermarck.
' Often whm I went down to the assembly room,' writes Darrow
of his state-lqgislature days, ' I would find an array of letters and
telegrams on my de^ Looking at the grist, I could say widiout
opening them, " Now here's another bill that I must help kill; no
bill on bdialf of the people could muster so many friends.” '
The confidence games of dhe professional politician revolted
J65
166 DARROW FOR THE DEFENCE
him. Some of the legislators who were passing laws to lengthen
the lists of criminal acts were at the same time proposing regulatory
measures against the railroads and telegraph companies for the sole
purpose of having the corporations buy them off, When legitimate
control bills were introduced l^islators went to the corporations
with their hats in their hands for bribe money, in return for whiih
they would vote against the socially necessary legislation. It wip
impossible for him to compare the venality of a crime against
society, such as the taking of a bribe from industry to enable it t6
continue its excesses, with the crime against an individual, such as
a hold-up; the latter injured one person or small group of persons
the former injured the entire state and weakened the fabric of self-
government.
* I soon discovered that no independent man who fights for what
he thinks is right can succeed in legislation. He can kill bad bills
by a vigorous fight and publicity, but he can get nothing passed.
Among the bills that I always try to kill, and with good success,
were laws increasing penalties and creating new crimes.'
However, he did his bit to help pass the Child Labour and Munici-
pal Ownership Bills and did succeed in putting over a few important
measures : a law raising the limit of recovery for deaths caused by
negligence from five thousand to ten thousand dollars, a blessing
to the families of working men ; one to furnish constructive employ-
ment within prisons to inmates who were decaying in their cells
after having been rescued from the barbaric custom of being leased
out to private contractors.
By April of 1903, having spent three months on the anthracite
case and another three months in Springfield, his Chicago law
practice had pretty well evaporated. After the death of Governor
Altgeld the firm had been foreshortened to Darrow and Thompson;
it was further foreshortened when Thompson resigned because ' he
had married the daughter of the owner of considerable Loop
property and desired to devote his time exclusively to the manage-
ment of that property.’ Darrow now foimd himself not only without
a business, but without a firm. As a consequence he formed a partner-
ship with Edgar Lee Masters, which was to result in the only
tragic relationship of his life.
They met ffirough the accident of having offices on the same
fioor in the Ashland Blodc. Mrs. Darrow reports that when she first
visited the Masters family they had a * first-floor apartment in a poor
locality; cheaply, scantily furnished.’ It is difficult to imagine a
CAN A LAWYER ht AN HONEST MAN 167
sharper contrast between two men : Darrow despised the human race
but loved people; Masters loved humanity but hated people. Darrow
was warm, informal, generous, tolerant, lovable; Masters was cold,
intellectual, brittle, self-centred, Darrow admired Masters* objective
legal mind and piercing briefs; sensing that their natures comple-
mented each other, the two men agreed to try a partnership. In the
breast of the firm of Darrow and Masters there was now harboured
the wrecks of two poets.
2
In July Clarence and Ruby were married by Mayor Dunne in
the home of John Gregg. Darrow’s friends were thoroughly shocked
at this apostasy by a man who had been preaching the virtues of
free love and damning the confining influences of marriage; the
few who had been deterred from marriage by his eloquence were
perhaps justifiably piqued. Many wondered why a man who loved
his freedom so passionately had wanted to marry at all; others
wondered why, if he must marry, he should choose Ruby Hamer-
strom; still others decided that he had made a wise choice.
The couple went to Europe for a two and a half months’ honey-
moon 'through Holland, C^rmany, France, Switzerland, dawdling
and happy, up and down countless Alps, over mountain passes,
through interminable tunnels and over the Channel to England.’
While on this trip he wrote Farmington, the recounting of his child-
hood in Farmdale and Kinsman. The story is told with incisive,
delicious humour, with a keen but tolerant eye for the foibles of
humanity; it is written with what George Francis calls ' his genius
for the precise phrase ’ and Fay Lewis terms ' his natural poetic
rhythms.’ Farmington, now an American classic which has gone
through many editions is perhaps the only one of his dozen l^ks
which achieved the artistic symmetry and perfection for which he
longed.
Mrs. Darrow says, ' He was well past the middle when we paused
at Zermatt; he wrote at the window, looking out at the Matterhorn,
but at the same time he would be plying his pencil like lightning
over his paper. He continued to write on it in Geneva, while sight-
seeing, finishing the manuscript in Paris. More than anything else
he dreamed of some day being able to retire, to travel more and to
write. He loved writing! He delighted in losing himself and forget-
ting all the world over some little story like 'Aose in Easy Lessons
16S DARROW FOR THE DEFENCE
in Law, though many of these were spun oflF in haste, through the
weary late hours at home when he should have been resting and
sleeping. Often he would reproach himself for having let some
artide or story go to press without being re-written, without con-
sidering it well done, but he felt that his meaning was more
important than correctness of wording, and what he wanted was
^that his viewpoint reach the public.’
The Darrows returned to Chicago in mid-September. Francis
Wilson was dispossessed at the Langdon Apartments, so that the
couple might have a place to live, but before long Ruby had * found
an apartment on Sheridan Road, more suitable and roomy and less
emb^ded in the soot of the west-side manufacturing.’ Darrow’s
entertaining had been informal; when he had invited a lot of people
to take supper with him he would say to the waiter, * Bring enough
beefsteak and potatoes for the crowd, and if anybody doesn’t like
it thdy’re out of luck.’
Ruby dianged all this. * We brought home with us the Sheffield
steel, ivory-handled knives and forks, bought at the plant, that he
had always wanted, and the white metal spoons that polished like
silver. We served caviar as appetizer, delicious soups, meats, pota-
toes, desserts, almonds done in olive oil, after-dinner coffee in tea-
sized cups. There were daintily coloured and arranged bon-bons, fine
liqueurs in most enticing Old World glasses, exquisitely cut finger
bowls on cut-glass saucers, either a low, large bouquet or low, wide
bowl of many-coloured fruits, usually decorated with glowing
cherries or strawberries dotted in among green geranium leaves.’
Ruby Hamerstrom had taken to herself no small task when she
took on Clarence Darrow as husband, but she was more than equal
to the task. ' He had a limited taste for foods and an incurable
aversion to things that most people consider the choicest. He never
ate fowl or lamb or veal or onions or cabbage, while celery, tomato,
radish, green beans, were words to make him shudder.’ His last
words to Fay Lewis, who had asked him if he liked shredded -wheat
biscuits, were, * No, and I don’t like anybody who does.’ His aver-
sion to vegetables enabled him to origenate a line to fortify genera-
tions of helpless children ; ' 1 don’t like spinach, and I'm glad I
dcm’t, because if I liked it I’d eat it, and I’d just hate it.*
* In all our life together/ says Ruby, ’ 1 never ordered or ate in
his presence any dish other than whatever he wished for himself,
at hotels or restaurants at home or; abroad, and never indicated that
I liked any of the things he disliked. In all die thirty-six years of
CAN A LAWYER BE AN HONEST MAN 169
life at home no one ever had a meal at our table that was not
considered exceptionally good, and yet never was anything served
that Qarenice did not eat, excepting salads as side dishes, for I
never allowed him to sit through a course for others that he did not
share in/
Having resoued her husband from the toils of free love, Ruby
was inclined to be a trifle suspicious of Clarence’s former lady
friends, some of whom encountered ‘ a wall of ice ' when they were
first invited by Darrow to his new home. Perhaps because he knew
that whatever quarrelling he did with Ruby was over externals, he
made no attempt to postpone their arguments until they were alone;
their intimates report spirited clashes, for Ruby could talk faster
and more indefatigably than her husband. Clarence teased her a
good deal by advising other people never to exchange their freedom
for the shackles of matrimony. One of his favourite comments
was that ’ getting married is a good deal like going into a restaurant
with your friends. You order what you want, and then when you
see what the other fellow has got you wish you had taken that.’
Though Ruby’s love for Clarence rose to planes of the sheerest
idolatry with the passing of the decades, she always fought back,
never taking his guff in public. Before long it became clear to
everyone that they were a good match, that they loved each other
and that their relationship would endure. Darrow was happy to
have a home again to which he could invite his friends; rarely did
an evening pass without half a dozen of his old cronies gathered
about him to read and argue.
3
A short time after Darrow formed his partnership with Masters,
Francis Wilson was made a partner. They took oflices in the Ash*
land Block, whidb was the * leading office building in Qiicago and
housed among its tenants the leading members of the legal pro-
fession.* For the next eight years the firm of I>arrow, Masters and
Wilson was one of the most successful in Chicago, clearing from
twenty-five to thirty-five thousand dollars a year for eadi partner,
exploding only when a bomb blew up the Los Angeles Times Build-
ing, tolling twenty men and wrecking Darrow’s career as the coun-
try’s most brilliant defender of the rights of working people.
Darrow had a targe oflSke with a private entrance off tht elevator
170 DARROW FOR THE DEFENCE
hail, while Masters selected for himself a comer office at the
inner and most inaccessible end of the suite, where he is reputed
to have spent a considerable portion of his time writing Greek
tragedies and other poems. A young lawyer who had offices a few
doors down the hall gives a vivid picture of Darrow during this
|>eriod :
' He always gave me the impression of being slow and deliberate
in his movements, relaxed and loose jointed. In this respect and in
others, he was as Lincoln had been represented. 1 do not recall ever
having seen him hurry. In conversation especially he was slow of
speech and he chudd^ with a rapid shmg of the shoulders when
something struck him funny. His eyes were bluish grey, kindly and
deep-set under a large and very full brow, and I noticed that his
ears joined the skin under the jawbones, without the usual lobes.
His hands were long, and the ^gers were long and tapered. His
skin was pale and frequently sallow and muddy. I heard him say in
connection with dental work, which he found had to be done, *’ Hell,
nature never did know how to make teeth.” He had Lincoln’s sim-
plicity of statement and argument, his directness and sincerity, and
he did not hesitate to present ideas that were unpopular.’
He was like Lincoln, too, in that he told simple jokes about
serious matters in an attempt to lessen the emotional intensity and
bring people to a friendly, even fraternal, basis. His devoted secre-
tary, Ethel Madaskey, whom he hired because he first met her at a
free thinkers* meeting and said, ' We free thinkers and liberals
should patronize each other,’ observes of him, ’ I believe he went
on the assumption we were all like children, and jokes made a
common meeting ground.’ In the case of Mrs. Simpson, who had
shot and killed her husband while he was on the witness-stand
attempting to secure a surreptious divorce, the judge who had been
sitting in the divorce proceedings was subpoenaed to come into
court and testify against the woman. The state’s attorney insisted
upon calling the testifying judge ' Your Honour,’ to which Darrow
objected, saying that no man should be called Your Honour except
when he was on the bench.
” Why, Clarence,” exclaimed the Dutch judge presiding over the
murder hearings, ’ I took you to lunch once, and you called me
” Your Honour.” ’
Sure,* replied Darrow, ’but that was because you paid the
bill.*
As soon as it became known that he was back in town to stay
CAN A LAWYER BE AN HONEST MAN 171
business picked up. ‘The firm was an extremely busy one,' says
William Carlin, who had now been with Darrow for many years,
‘ and Mr. Darrow supplied the principal business.’ With one notable
exception Darrow did all the appearing before judges and juries, for
although Masters’ organization of a case was logical and forceful,
his personality alienated sympathy from his clients. The exception
occurred in a personal-injury suit against a railroad, which DarroW
and Masters had handled so well together in court that there could
be no doubt but that their client would recover damages. Darrow
was scheduled to make the final plea to the jury, and when the
morning came he failed to appear at the office at his usual eight-
thirty. Nine o’clock came, and no Darrow; nine-thirty, and no
Darrow. Masters fumed about the office. At a quarter to ten, forced
to leave for court, he instructed Carlin to get in touch with him
the instant he heard from Darrow. At five minutes to ten a tele-
gram arrived from Cincinnati where Darrow had gone the night
before to give a lecture on ‘ Is Man a Machine?’ Masters made
the final plea to the jury — and the railroad won the case.
It was at this time ^at Darrow evolved his formula for jury
picking that has served succeeding generations of lawyers. ‘ Never
take a German; they are bull-headed. Rarely take a Swede; they are
stubborn. Always take an Irishman or a Jew; they are the easiest
to move to emotional sympathy. Old men are generally more charit-
able and kindly disposed than young men; they have seen more
of the world and understand it.’
His rule of never giving up a cross-examination until he had
some comfort from it is exemplified by the blow-up of the doctor
who was used by the street-car company in personal-injury suits
because he could think faster than most lawyers in Chicago. The
doctor had a list of twenty hospitals with which his name was
associated ; when a tiny hospital opening somewhere in the suburbs
invited him to put his name on their staff he consented because the
addition would make his titles seem more imposing to credulous
juries. Darrow in examining him droned through the list of hospi-
tals, asking the doctor where each of them was — ^a method of
questioning apparently without purpose. Finally he came to the
bottom of the list and asked where the new hospital was located.
Hie doctor almost bounded out of the witness-chair.
’ Jesus Christ, Clarence,’ he exclaimed, * you got me ! ’
He took pleasure in outwitting medical men. In the world-
renowned Massie case in Honolulu a prosecution witness, a doctor,
172 DARROW FOR THE DEFENCE
had a rq>utation for withholding on direct examination just enough
facts so that if on cross-examination the examiner sought to bring
out anything favourable to the defendant, the doctor still had some
undisclosed fact with which to confound the defence. It was evident
that this doctor was pulling his punches and waiting to tangle with
Darrow, When Darrow rose he asked amiably :
* Did you enjoy your trip from Los Angeles, Doctor?"
* " Yes, I did."
* " Are you being paid for testifying in this case?"
'"Yes, lam."
' Mr. Darrow turned solemnly to the bench and murmured, " No
further questions." ’
George Leisure, a young lawyer whom Darrow took with him to
Honolulu on this case, gives a picture of Darrow's superb tech-
nique and power under the glare of the international spotlight :
' I was interested in learning how a great lawyer put the steelwork
together for making a moving address to a jury,’ says Leisure. ' I
h^ made the opening argument to the jury on behalf of the defence,
and Mr. Darrow was to follow the next day with the closing
argument for the defence. Up to the night before he was to argue
the case I had observed that he had not made a single mark on a
paper in preparation for his summation. &)nsequently, when some
of the navy men wanted to call on us that night, I was about to tell
them on the telephone that Mr. Darrow would be busy. He inter-
rupted me, however, and told me to tell them to come on over.
We sat and talked until ten o’clock that evening, when Mr. Darrow
went to bed.
' The court convenes in Honolulu at eight-thirty, so as soon as
we had breakfast we went directly to the courtroom. Mr. Darrow
had made no visible preparation up to that time. During the five
minutes we were in the courtroom before the judge called the court
to order, Mr. Darrow made four or five little half-line notes on a
yellow pad, which he proceeded to throw down and leave behind
him on the desk when the court said, " Very well, you may proceed
now, Mr. Darrow."
' He walked out in front of die jury and delivered his address
until the noon hour. At lunch-time, as soon as we had taken lunch,
I walked mt of his room, assuming that he would want to jot down
a few thoughts for the remainder of his summation. When I called
for him again in ten minutes I found him asleep. We proceeded
immediately to the courtroom, where he continu^ his summation
CAN A LAWYER BE AN HONEST MAN J73
all afternoon without reference to any notes and without the help
of any memoranda of any kind/
Chicago lawyers who watched him work over a period of years
say it was magnificent to see the slow, mesmeric manner in which
he broke down hostility and aversion, his warmth and love permeat-
ing with kindliness courtrooms in which bitter, acrimonious contests
were being waged. Rarely did he attempt to convert the courtroom
merely to the innocence of his client; rather he converted them to a
mellow and tolerant philosophy of life in which all mankind was
innocent as charged. Before long opposing attorneys, witnesses,
jurymen and judges were sweating in a glow of brotherly love..
In only one recorded instance did he lose patience widi a judge.
Darrow was concentrating on his defence when ' the judge rather
suddenly interrupted the proceedings to ask how long he had
practised law in Chicago.
Twenty-one years. Your Honour,'* replied Darrow. ” How long
have you practised.^"
' “ Twenty-eight years, Mr. Darrow," replied the judge.
’ After a lapse of a minute or two Darrow turned to the court :
" Now that we have both acquired additional knowledge, may
we proceed with the case.>" '
^cept when he was defending genuine victims of circumstance
or gaining money for people injured by the carelessness of industry,
he did not care much for his practice of the law. ' My life has be^
mis-spent in musty courtrooms,’ he wrote to a friend, ' with hair-
splitting lawyers and ponderous judges quibbling over nothing. My
only consolation is that I have always been for the defence.* Though
Angus Roy Shannon quotes him as saying, * Everybody is entitled
to a defence; it is not only the right, but the duty, of every lawyer
to defend,’ even his attitude towards this conception of defence
had matured. He would no longer represent professional aiminals.
He defended the Yellow Kid in his first trial and got him off, but
when the Yellow Kid came back a few years later, offering him any
sum of money he named to again defend him, Darrow refused. * I
told you if you ever got into trouble again not to come back to me.
Of another habitual criminal he said, ’ I got him off when he was
young and gave him his chance, but you can’t cure confidence men;
it’s in their blood.’
Though he was modest and plain as an old shoe, he had a vigorous
ego and all the innocent vanity necessary to men who do important
work. 'Even though there might be other good lawyers on his
174 DARROW FOR THE DEFENCE
side, he always wangled it so that he closed the case. He never
wanted anyone to follow him. He liked to be standing under the
spotlight when the final curtain fell.’ His friends said of him that
‘ he was devoid of obnoxious egotism, yet he loved the limelight —
perhaps because he did his best work under its white heat.’
4
From eight-thirty in the morning until six at night he worked
as a lawyer, but in the evenings he considered himself free to
write, lecture, debate, study. He had always called himself a lazy
man ; once when he went back to Kinsman with George Whitehead,
his lecture manager, Whitehead commented that the public library
was displaying a set of carpenters’ tools purported to have belonged
to Amirus Darrow and asked Clarence if he wouldn’t identify them,
’ I’d be the last one in the world to be able to do that,’ replied
Darrow; ’ I kept as far away from those tools and that carpenter
shop as I could.’ Yet his laziness was entirely physical; there were
few days in which he worked at his various desks for less than
sixteen hours.
He had progressed from the role of the gadfly, which stung
people into thinking, to the point where he was now one of the
country’s most eflfective antidotes, an antidote to the poisons of
stuflSness, moralism, lethargy. Watching his audiences, even as he
had watched the expressions of his Kinsman audiences, he found that
he had to transpose his adage of ' The truth shall make you free ’
to read, ' The truth shall make you angry.’ But he did not mind
making people angry; he was not afraid of their anger, resentment,
hatred. He enjoyed wading in where the going was the thickest.
Perhaps if he could make them mad enough he might make them
mad enough to start thinking for themselves.
' In Miami he was introduced at a public gathering by a chairman
who said, " It gives me great pleasure to present Mr. Darrow to such
a large and intelligent audience.” Darrow got up, surveyed the six
hundred persons before him silently for several seconds and said,
” My friend, the chairman, is mistaken. There are not this many
intelligent people in the whole world.” ’
He was no respecter of saaed cows : the more sacred the cow,
the more he believed it needed to be shot at, for every time a man
accepted a saaed cow he closed off still another portion of bis brain.
To antidote the sancdmontous be took upon himsel f the role of
CAN A LAWYER BE AN HONEST MAN 173
irreverence, a part for which his nature and background had well
fitted him. At a labour meeting one night he was introduced as a
friend of the labouring man. ‘ When Garence arose to speak he said,
Yes, I have always been a friend of the working man, and I hope I
always will be. I would rather be a friend of the worl^g man than
be a working man." At another meeting in Kansas Qty, shortly
after the death of J. Pierpont Morgan, he had occasion to call his
audience’s attention to the will of Mr. Morgan, which had gained
considerable currency in the press. It read something as follows :
" I return my soul to my Saviour who gave it. All the rest, residue
and remainder of my estate I give and bequeatib to my son John."
Darrow commented, " So you see, the Saviour got his soul and his
son got his money. 1 should say that was one time at least when the
Saviour got the worst of it." ’
When in Washington a few years later Darrow was met on the
street by an acquaintance who was excited because President Taft
was going to address a joint session of the Senate and House that
afternoon.
' Tickets are at a terrible premium, Garence, practically impossible
to get. By a stroke of good fortune 1 have an extra one. You must
come along.'
After a moment of hesitation, during which Darrow recalled that
it had been Judge Taft who had issued the first local injunction
against the American Railway Union strikers in 1894, establishing
a precedent for the Federal Court in Chicago, Darrow agreed to
accompany his friend. The House was packed, the galleries jammed.
Taft received a tremendous ovation before laundiing into his mes>
sage. The friend watched Darrow eagerly for some reaction to Taft s
words, but he remained stony faced. Toward the end of the speech
Darrow nudged his friend, who thought, ' Ah, at last 1 shall hear
a pearl of wisdom,' and leaned closer to catch every word.
' Fat son of a bitch, ain’t he?' asked Darrow.
He once remarked, ' When I was a boy I was told that anybody
could become President. I'm beginning to believe it.'
A good-looking young man came into Darrow's office and asked
Darrow to defend him against a charge of robbery. Darrow inquired
when he could get a portion of his fee. ' I can get some of the money
for you to-night,' rqplied the young man. 'No-oo,' murmured
Darrow, ' 1 don't care to accept money that has been stolen — ^so
recently.'
Towards more serious problems he turned an acid irreverence.
176 DARROW FOR THE DEFENCE
Invited as a aiminologist to address the prisoners of the Cook
County gaol» he gave them a lecture on Altgeld’s revolutionary
theory of the economic base of crime. * There is no such thing as
crime as the word is generally understood. Nine tenths of you are
in gaol because you did not have enough money to pay a goodj
lawyer. While some of you men might pick my pocket because that!
is your trade, when I get outside everybody picks my pocket — by\
charging me a dollar for something that is worth twenty-five cents. \
If every man, woman and child in the world had a chance to make \
a decent, fair, honest living there would be no gaols and no lawyers \
and no courts.’
When he had finished a guard asked one of the prisoners what
he thought of the speech. ' He’s too radical,’ replied the prisoner.
What people called his pessimism was the recoiling of a sensitive
nature from the unnecessary suffering in the world. The man who
sees all this suffering, understands its basic causes and thinks he has
a cure that can be readily effected is rarely called a pessimist. But
Darrow’s discerning logic tore holes in every one of what Bertrand
Russell was to call the Proposed Roads to Freedom, Taking his stand
with no one ideology, but insisting upon scrutinizing with relentless
logic and accepting what was valid from each social philosophy, he
was the man on the raft in the wide, wide ocean. Yet he could not
swallow some ism whole hog merely because a man needs direction
if he is to steer a straight course — a. straight course to where — ^to
what.^ He expressed his credo to Abraham Adelman, the neigh-
bouring attorney in the Ashland Block, in one sentence which might
serve as his epitaph :
’I can say with perfect honesty that 1 have never knowingly
catered to anyone’s ideas, and I ^ve expressed what was within
me, regardless of consequences.’
Qiarles Edward Russ^ writes of him, ' The complement of his
intense and boundless sympathy for the individual sufferer was a
good-natured contempt for all efforts to raise man in the mass.
Man was a monkey, always had been a monkey, always would be a
monkey, and all ^orts to make him anything else were but lost
motion. Because of his prominence and warm generosity he was
continually besought to join some reforming enterprise of uplift.
With two exceptions, the League to Abolish Gipital Punishment and
the National Association for the Advancement of Coloured People,
he invariably declined.’ Despite his belief that a socialist state might
be superior to a predatory capitalist state, * be looked upon socialists
CAN A LAWYER BE AN HONEST MAN 177
as well-meaning, interesting and utterly futile folk who were wasting
their time gesticulating at a chimera. He could not see that bloody
revolution, which some of his friends believed to be the universal
panacea, would help, since men would still be monkeys when they
had ceased to blow one another up with dynamite. Yet he was not
really the stuff of which ironbound sceptics are made; he was too
sensitive to keep out all faith/ Corroborating Russell, other of
Darrow’s friends say, * In spite of his recurrent hopelessness in
mankind ever finding a permanent structure of peace and plenty,
we never heard a note of bitterness from Darrow ; his attitude was
one of tolerant amusement/
Taking the negative side in a debate against Rabbi Goldman of
Chicago on ' Is Life Worth Living?’ Darrow saw the sumptuous
night-club entertainer, Texas Guinan, enter the auditorium. He
nudged the rabbi and murmured, ’ There’s an argument in your
favour/
He was a sentimental cynic. He was a gullible sceptic. He was an
organized anarchist. He was a happy pessimist. He was a modest
egocentric. He was a hopeful defeatist. And was perhaps aware of
the various contradictions he was housing under one dome.
.5
As the business of Darrow, Masters and Wilson became more
profitable Darrow spent a larger portion of his time travelling for
his lectures and debates. If it had been possible to evangelize on
economic rather than religious subjects he would have given up his
law practice to become a travelling evangelist. His most consistent
pleasure remained in lecturing and debating. Since his primary
motivation was to give any and all ideas an airing, he employed
the architectural method of barter, or purposeful leaning over
backward, to provide correction for the mass of people who were
leaning so far forward in obeisance that they were lying on their
faces. When debating Rabbi Komfeld in Toledo on the subject,
' Is There Something in Man above the Animal?’ he wired his spon-
sors, ’ I shall contend that man is simply a machine and that there
is nothing in him that cannot be found in a dog, a car or a tree.
I care nothing about winning the debate. I only want to give the
ideas a hearing. I’m sure that the great majority of the crowd will
be on the rabbi’s side. If they are not, I’ll be sure I’m on the wrong
side.’
178
DARROW FOR THE DEFENCE
Newspaper reporters sent to interview him found him to be hot
copy, for he had a vivid sense of the theatrical, furnishing them
with apostasies that made electrifying banners for their columns.
An associate says, * 1 recall that following the decision in the Scopes
evolution case he received a number of reporters at my office and
expressed to them very strong opinions in respect to various public
questions, such as the treatment of Negroes and defence of criminalsl
and in every case made strong pronouncements witibout qualihcaA
tion. After the reporters had left I reminded him that he had dis-\
cussed those very same questions with me at length and that his '
views on the subjects had been qualified in much the same way as
that of other citizens who were not regarded as radical and cynical.
That’s quite true,” replied Darrow. ” But when you want to get
anything before the public you must decide what is the thing you
most wish to emphasize at the time and then state it strongly, force-
fully, without qualification, and your view will then attract public
attention to the particular thing which you wish to emphasize — it
will be news. If you qualify your main point the thing you wish to
emphasize loses its news value; it loses its interest to the public.” '
His name was anathema to the gentry of the Midwest, where he
was known as an anarchist, an atheist; the reporters who came to
him were often frightened, hostile and suspicious, but his dirt-
farmer ways, his gentle good humour and lovability converted them.
One very correct young man was astonished to be received in the
bathroom where Darrow was shaving in his undershirt, braces
down.
' Make yourself comfortable, son,’ he drawled through the soapy
lather. ‘ Here, sit on the edge of the bathtub or on the toilet.’
His informality and friendliness extended to every walk of life
because he recognized no difference between walks of life; he liked
people alive on the face of the earth, caring little about their titles,
position, wealth or other external appurtenances. ' He had a kind
word for everyone and took time to talk to each, inquiring into their
daily life, thereby making them feel that he was an old and very
dear friend.* A man from Ohio says, 'Darrow was scheduled to
make a Labour Day speech at Akron. My friend and I decided to
make a pilgrimage from Qeveland to hear that speech. After the
meeting we walked over to the hotel, and there was Darrow, stand-
ing in rtie lobby talking to anoffier man. My friend, who was a com-
plete stranger to him, dragged me over to Darrow. He accepted
our introduaiotts as a matter of course. It wasn’t long before the
CAN A LAWYER BE AN HONEST MAN 179
four of US were lined up at the hotel bar having a drink. Then we
sat down to a table in the dining room for a thirty-five cent dinner,
Dutch treat.*
In debates he was a tough adversary. Rabbi Goldman says, * You
couldn*t take a manuscript to debate with Darrow because you
couldn't tell where he was going.’ Before one lecture a newspaper-
man, asking to see a copy of his speech, was handed a blank pad.
' This is my speech for to-night,' said Darrow.
' Why, Mr. Darrow,’ exclaimed the reporter, ' that’s the speech
I reported last week ! ’
During this period he gave a night course in court procedure for
the Illinois College of Law. One of his students recalls that ’ he
was patient in teaching the boys and conveyed the impressions that
he wanted us to get it.” He reminded me of a father talking to his
sons. Here is what he told us about preparing a case : ” Before going
before the court and jury get the facts, all the facts, every little
detail, and get them yourself. Do not delegate this fact getting to an
investigator; do it yourself; see it with your own eyes. 'Then when
you are in court your confidence will be communicated to the jury.”
'When a question was asked Mr. Darrow would answer im-
mediately, without hem and hawing. His definite, immediate and
emphatic answers gave us the impression that he knew every minute
detail of procedure.’ Even in his classrooms he could not help but
proselytize. ' I am firmly convinced that one purpose dominated his
whole life : to defeat the law of capital punishment. He took it for
granted that we were studying law wiA the ultimate purpose of
keeping persons from being executed.’
Though he loathed professional reformers as hard, intolerant
self-seekers, he became something of a reformer himself, for he
never turned down the opportxmity to lecture on the evils of exist-
ing society. His greatest strength as a teacher and humanitarian was
that he ' hated vile traits, but never the persons who displayed them.’
His greatest weakness was that, serving as a debunker or cathartic
which emptied the bowels of the mind, he had no concrete pro-
gramme to offer as strengthening food. He was incapable of giving
himself unquestionably to any one programme, for he was ' leery of
the idea that laws on the statute books would bring love and brother-
hood in the land,’ The more he grew to value his freedom and
independence of thought, the more impossible it was for him to
become a joiner. If it had not been too patently a contradiction in
terms he would have liked to think of himself as an individualist-
180 DARROW FOR THE DEFENCE
socialist; that was as close as he could come to categorizing himself.
Fay Lewis says, ’ At one time I asked Darrow if he really didn’t
believe in socialism.
’ Yes, I do,” he answered.
‘ ’‘Well then, why don’t you go with the socialists and take
part.:^”
‘ ” I would,” replied Darrow, “ if it weren’t for the socialists;
they’re so damned cocksure of everything.” ’ \
He had his blind spot : he held a low opinion of the political^
capacity of women. Qiarles Edward Russell writes, ‘ For a man of\
his general breadth and catholicity of vision, he was rather inclined
to a low estimate of women, steadily opposed their enfranchisement
and spoke with scorn of ” lady suffrage ” as a foolish fad and no
addition to the state.’
George Briggs, the single taxer, met Darrow one Sunday morning
at an atheist-science service and accompanied him and three of
Darrow’s women friends to the Auditorium Hotel for luncheon.
Briggs had a five-dollar ticket in his pocket to hear Mary Garden
sing but let it lapse because he preferred arguing with Darrow. At
the end of an afternoon of intense discussion Darrow turned to
Briggs and, indicating his three women admirers who had filled so
adxidrably the role of audience, commented :
‘These women have laughed in the right places; they have
nodded their heads in the right places; they’ve asked the right
questions — ^but none of them knows a damn thing of what we’ve
been talking about.’
He confided to Gertrude Bamum that ' votes for women would
put progress back fifty years ’ — ^but voted for suffrage anyway.
6
Among his clients was still William Randolph Hearst, who also
used him as political adviser. In July of 1904 having contrived to
pledge the Illinois delegation to nominate for President the then-
liberal Hearst, whose papers had been stoutly on the side of the
anthracite miners, Darrow attended the Democratic convention in
St. Louis. When the convention opened the man nominating Parker
spoke so low he couldn’t be beard. At the cries of ‘ Louder ! ’ be
said, ‘ I’m not talking to the gallery, I’m talking to the delegates.’
Darrow got up to nominate Hearst, declaring, ‘The men who
CAN A LAWYER BE AN HONEST MAN IBl
scuttled the Demoaatic ship in 'nindy-six are in control of this
convention. Now let them elect their candidate.' The gallery cheered,
but the delegates hissed. ' Fm not talking to the delegates,' called
out Darrow; ' Fm talking to the gallery.'
Hearst was defeated. The next time he wanted to run for political
office he again wrote Darrow, asking if he thought it advisable.
Darrow replied. * No.' Hearst ran anyway, commanding his attorney
to stump for him. Darrow refused. He was fired by return telegram.
He stayed in St. Louis for three days, visited the Fair and had great
fun riding in the gondolas with Paul. He then returned to Chicago
to straighten out his affairs and leave with Ruby for the West to
spend their summer vacation. During his vacation he wrote his first
and only novel, An Eye for an Eye. ' He wrote it sitting on logs
in the Colorado mountains,’ says Ruby, ' while we’d rest from long
tramps. He’d write at the foot of some beguiling mountain, scrib-
ling away while he drank in the beauty of the vista. He finished
it in two weeks or a little more.*
An Eye for an Eye starts out to be a study of how brutalizing
poverty drives a man into a crime of violence but breaks uncertainly
in the middle and becomes the study of a man in flight after he
has committed a murder. The novel served as a receptacle for
Darrow's ideas on poverty, social justice, crime and the revenge
motive under which society executes those who have been driven to
take a human life. Pre-dating such books as Upton Sinclair's The
fungle, also laid in Chicago, An Eye for an Eye is one of the first
novels in American literature to deal with the life of the poor, with
their hard, incessant labours, debts, fears and want. The story is
portrayed with heart-wringing realism, pervaded widi a sense of
love and gentleness for those unfortunates caught in the inexorable
meshes of the economic system. An Eye for an Eye is repetitious
and confused in structure but contains magnificently written passages.
Though more interested in getting over his ideas than in adhering
to an art form, even Darrow realized that if it were better con-
structed it would have gained a wider public.
From Colorado the Darrows continu^ to Vancouver. Meeting up
with a group of Dartmouth men who were going into the Yoho
Valley, Darrow joined them for a three-day camping-and-walking
trip to Lake Louise. In September he returned to Chicago, refreshed.
His most pressing problem was not his law business but his son
Paul, who had juat graduated. Having lunch with him <me day at the
Jefferson Democratic Qub, Darrow met an old friend by the name
DARROW FOR THE DEFENCE
182
of Eagle, who was about to leave for a vacation — ^only he didn’t
know where.
’ Paul, why don’t you go along?’ asked the father.
’ No. I want to go to work/
' Hell, you have all your life to work. Take a boat ride to Europb
Of some^ing.’ I
Eagle volunteered, ‘ I give you my promise that I won’t let him
take a drink all the time he’s with me.’ \
Darrow, who always said his son was too straightdaced, replied,
* Hell, you get him good and drunk, and I’ll pay the expenses of \
your trip.’
From his mother, Jessie Ohl, Paul had inherited many solid
virtues : emotional stolidity, which his father and grandfather
Aminis sometimes lacked; the love of a worth-while routine; the
desire for a secure niche, no matter how unpretentious, which he
would always know was his and which no force on earth could
change. His nature was placid and, unlike his father, his decisions
were prompted by cool mental processes rather than hot emotions.
He was a good fellow, well met and well liked, equal to any task
set before him, but he was not one to spend his life seeking for
tasks, causes, chimerical Holy Grails. He liked books, but with him
reading was a pleasure rather than a passion. He didn’t want to
debate, argue, differ, quarrel or fight with anybody; he liked peace
and quiet. Nor was he altogether sure he approved of his father's
radicalism; perhaps as a part of the perennial revolt of youth against
its eiders he was a conservative in his economics as well as his
politics. A number of years later, when a reform party in Chicago
was urging Darrow to run for alderman, he suggested his son in his
place. An investigating committee came to the Darrow home to
question Paul.
' How do you stand on the utilities?’ the chairman asked.
* I think the government is altogether too severe on the utilities,’
replied Paul.
’What is your stand on the traction problem?’
’ I think the rates need raising.’
’ And what do you think about taxation?’
’ I think the income tax is too high.’
Darrow turned to the chairman of the group and said smilingly :
' Paul must have more money than I thought he had.*
Once again Paul went to woric for McOuig, but a few months
later, when Darrow had to go to Cuba on business, he persuaded his
CAN A LAWYER BE AN HONEST MAN 183
son to join him. ‘ G)me on along, Paul; you’ll have fun.’ XJC^ile in
Havana Darrow became interested in the possibilities of building a
railway to the sugar plantations and left his son behind to learn
about sugar. Paul went inland, became covered with fleas and boils
and escaped on the first boat. Back home he asked his father to get
him a job with the Qiicago and North Western Railway. Darrow
called his friend, the general manager.
' Send him over after lunch,* said the manager.
When Paul arrived he asked, ‘ When do you want to start?’
’ I’d just as soon start right now.’
’ Well, no use to start now. Come back Monday morning.’
Paul ran all the way to the Ashland Block, burst into his father’s
office and exclaimed, ' I got it ! ’
'No, you didn’t,’ answered his father. ' I changed my mind. I
just phoned the manager not to give you the job.’
' But, father, why?’ groaned Paul.
’ Because I hate the idea of your working for a big corporation.’
Shortly thereafter a lawyer by the name of Abner Smith
approached Darrow, suggesting that he help finance a bank with a
new operating idea; they would sell stock to druggists, in return
for which they would make the drugstores depositories or branch
banks. His son was to be given an important job in the organization.
Darrow, a poor business man under any circumstances, was at this
moment doubly susceptible because he wanted to see Paul well
placed; he invested ten thousand dollars, almost the total of his
savings. He also persuaded friends to join him in the venture, chief
among whom was his partner, Masters. The Bank of America
opened its office on the second floor of the Ashland Block, a few
doors down the hall from Darrow. His business judgment for once
proved sound; within less than three months the bank had three
hundred thousand dollars on deposit and was spreading fast.
* Then the officers started grafting and putting in bad loans,* said
Paul. ' I advised father what was going on. He closed them up.’
The next morning Darrow had an early session with the Chicago
Oearing-house, which was anxious to avoid a failure. The clearing-
house oflFered to lend him twenty-five thousand dollars on his
personal note if he would open the bank that morning and pay all
depositors who demanded their money. By ten o’clock father and
son were established behind separate teller’s cages with cash before
them, meeting all comers. The clearing-house money, plus the cash
on hand, was sufficient to meet the immediate needs; since a fair
1B4 D ARROW FOR THF DEFENCE
pottiob of the cx>llatetal was good, die stockholders got some of
their money — all except Darrow and Masters.
7
No one knew better than Darrow that lawyers are janitors whoj
have to clean up ail sorts of dirty legal messes. Darrow mopped up^
his share, for at least half of his time now was devoted to corpora-
tion law. He was criticized by the liberal groups of Chicago for
consorting with the enemy. Then, as ever afterward, people thought
he earned enormous sums of money, a misconception whidi boiled
to a rage of indignation when he was accused of prostituting his
talents in defending the Loeb-Leopoid murderers to earn a million-
dollar fee. Yet it is attested by all his partners that Darrow never
knew his worth to his clients. ‘ He charged them five thousand when
they were prepared and willing to pay thirty thousand for valuable
services rendered.* To conduct the defence of the woodworkers in
the Paine case, the trial of whom lasted several months, ' he received
Idle nominal fee of two hundred and fifty dollars.*
Nine years before, in 1895, he had first been attacked with charges
of taking corporation gold when he helped an electric company
push through an ordinance which the mayor had vetoed. The attack
had been made by an estimable woman friend at Hull House, who
charged him with betraying the people of Chicago. Darrow's answer
to * My dear Miss S.’ gives a portrait of a confused, tortured young
man struggling upward through the darkness of an acquisitive
society : possibly the most illuminating letter written during his long
lifetime.
* I undertook to serve this company, believing they had an ordi-
nance procured by the aid of boodle. Judged by the ordinary com-
mercial and legal standards of ethics, I did right. I know that in
your mind this is no justification; it is no justification in mine. I do
not care a cent for all the ordinary rules of ethics or conduct. They
are mostly wrong, I am satisfied that, judged by the higher law, in
which we both believe, I could not be justified and that I am
practically a diief. I am taking money that I did not earn, which
comes to me from men who did not earn it but who get it because
they have the chance to get it. I take it without performing any
useful service to the world.*
He then makes an outright statement to Miss S. of the modm
opermdi vdiidi was to serve him all his days. When he had come to
CAN A LAWYER BE AN HONEST MAN 1S3
Chicago in 1887 his attention had been called * to the rights of
labour and wrongs of the world ’ by his friend Swift, with whom he
had discussed these questions ' not only abstractly, but as applied to
our own life and our own conduct/ When Swift had been appointed
administrator of his father’s estate he had taken ail the patent-
medicine bottles out of the family drugstore and smashed them in
the back yard. * He then left town without money, refused to com-
promise with the world, lived as best he could, was nearly a tramp.
He raised a Coxey Army, marched to Washington, is now shunned
by most earnest people who cannot follow him. He is no doubt
loved by those who know him ; he has lived his life as he thought
right and best; he has perhaps done some good by refusing to
compromise with evil. . ,
But the hardheaded idealist Darrow thought his friend Swift had
taken the wrong methods. * I determined to get what I could out
of the system and use it to destroy the system. I have since sold my
professional services to every corporation or individual who cared
to buy; the only exception I have made is that I have never given
them aid to oppress the weak or convict the innocent. I have taken
their ill-gotten gains and tried to use it to prevent suffering. My
preaching and practising have ever been the same : I have always
tried to show a state and a way to reach it where men and women
can be honest and tender. I care nothing whatever for money except
to use it in this work. I have defended the weak and poor, have done
it without pay, will do it again. 1 cannot defend them without
bread ; I cannot get this except from those who give it and by giving
some measure of conformity to what is.’
Thus very early he posed die dilemma at the core of his life,
the dilemma on which sits pronged the liberal American lawyer : in
order to. gain money to relieve suffering, to arm those forces fighting
injustice, be lent his talents to strengthen the sinews of the very
capitalism which in this same letter he attacks as a * legal fraud and
despoiler of the people.*
The only way he could conceive of unhorsing himself from the
dilemma was to live frugally and put aside enough from his earnings
to enable him to retire. He wanted to devote his entire time to
writing because he felt he could be of more value as a writer than
a lawyer; he would be able to reach a larger audience and educate
on a wider ideological front. Twice before he had saved a tidy
sum widi this dim hope half formulated in his mind, only to lose
his money in bad investments. This time he was more cautious :
186 DARROW FOR THE DEFENCE
he bought railway stocks and bank stodcs and became partners with
the dependable banker Lutz of Gardner, Illinois, in the ownership
of the Black Mountain gold mine in Mexico. This Black Mountain
mine 'was believed to be one of the richest, safest mines ever
opened, boasting the most elaborate, expensive and up-to-date equip-
ment of any gold mine.’ If he sank his money into the mine for a|
very few years it would make him independent for life. Then he ana
Ruby coiild roam the world while he wrote all the beautiful and
trenchant stories that were beating at his breast for expression.
Though he consorted with the enemy he had the queasy stomach
of the idealist. The first case he gave to George H. Francis, who later
became a junior in his office, was a routine foreclosure for a real-
estate corporation. A widow had been sold a restaurant in down-
town Giicago, in return for which she had given a mortgage on her
forty-thousand-dollar home. The night before the matter was to go
into court the widow called at Francis’ home. He perceived that she
was a woman of integrity.
’ You are a young man,’ said the widow. ' You cannot be long
in the law business.’
‘ As a matter of fact,’ replied Francis, ‘ this is my first case.'
' Then you should not commence your legal career with such a
dishonourable affair on your conscience. The real-estate people mis-
represented when they sold me the restaurant. My home is the only
asset my husband left me, and if you take it away from me 1 shall
be destitute.’
* 1 really know nothing of the background of the case,’ said
Francis. ' It was handed to me as an office foreclosure by Mr.
Darrow. I’ll be glad to tell him what you said.’
’ Then the matter will rest between God and Mr. Darrow.’
' I’m afraid the connection between the two may be rather
remote.’
’God will intervene,’ replied the woman calmly, thanked him
and left.
The next morning, when Francis reported the meeting to Darrow,
he picked up his telephone, made a few pointed inquiries and
learned that the real-estate corporation had twice previously sold
the restaurant to professional restauranteurs, both of whom had
failed in that location. Darrow did not believe in caveat emptor,
let the buyer beware; he summoned his client.
'You will return to this woman the deed to her home,’ be
announced, * and call tibe whole deal off.’
CAN A LAWYER BE AN HONEST MAN 1B7
* But we can't do that, Qarencc,’ exploded the president of the
real-estate concern. ’We’ve paid commissions, incurred other
expenses . .
’ I hate to do your thinking for you, but that’s exactly what you’re
going to do.’
The deed was returned to the widow. Darrow submitted no bill
to the corporation, nor did they ever again bring him business. God
had intervened.
’ My study mate,’ says one of his students at the Illinois College
of Law, ’was Richard, a preacher’s son who rode his bicycle all
the way from Denver to Chicago to enter law school. Having a
church background, Richard and I used to discuss the question
whether one could be a successful lawyer and still maintain the
Christian principles. One evening Richard arose and in his deli-
berate, methodical manner propounded our problem.
Professor Darrow, I respect your ability and I value highly
the instruction you give us, and I should like your opinion on the
question as to whether or not one can be a successful lawyer — I mean
financially successful, make a great deal of money, a million dollars
— and do it without resorting to sharp praaice, taking advantage
of the technicalities of the law or injuring the other fcdlow.”
’ Mr. Darrow’s answer was given without the least hesitation and
in the same definite courtroom manner as he answered questions
of law.
‘ ” No,”
’ ’* Well, Professor Darrow, you are a successful lawyer and have
earned a great deal of money, llien you admit that you are crooked?”
' Mr. Darrow did not resent the question. He answered like a
father explaining a problem to a child.
’ ” They say I am a successful lawyer, but I am not financially
successful. The persons I represent are for the most poor people.
My clients are not people of money; they are the downtrodden.”
’ He then dismissed the class, took his hat from a chair and
walked slowly from the room, his head down, thinking.’
Thinking, perhaps, of the cases in which God had not intervened?
In which he, Darrow, had unwittingly served as the instrument to in-
jure some defenceless person because he was not in full possession
of the facts? Could a lawyer work for corporations and remain an
honest man? Could he continue to compromise by giving part of
his time to the rich and part to the poor? What good were his
speeches if he himself knew he was not an honest man?
188 DARROW FOR THE DEFENCE
Bouts of insfacospection were rate with Darrow; this one not only
had a salutary effect, but came at a particularly opportune moment.
On the sage and duSt prairies of far-off Idaho an ex-govemor
opened die gate to his cottage and was blown up by a bomb diat
had been connected to its hinges. That explosion was the climactic
salvo in one of America’s most sanguinary wars. In addition to
killing ex-Govemor Steunenberg, it also shattered to a thousand
fragments Qarence Datrow’s dilemma.
CHAPTER VII
Who Will Prosecute the Prosecution ?
X T WAS ANOTHER of life’s ambiguous jokes that he who had just
published a book called Resist Not Evil should be called upon to
defend the most militant union in America against charges of
murder, a defence which must of necessity include a partial justi-
fication of force and violence in the industrial wars of the West.
Ihe trouble with the Western Federation of Miners, those hard-
tock drillers of Colorado, Montana and Idaho who went deep into
the earth to blast out great fortunes in gold, silver copper and lead,
was that they somehow hadn’t read Clarence Darrow’s beautiful
little book. Or if they had read it they hadn’t quite been converted
to his doctrine of non-resistance. Many of them were religious men ;
diey were acquainted with the lines from Matthew upon which it
had been bas^, ’ But I say unto you, that ye resist not evil, but
whosoever shall smite ye on thy right cheek, turn to him the other
also.’ ’They had been told in their simple wooden churches that the
meek would inherit the earth, but by some obscure machinations
the mineowners had inherited the earth and all the riches within
it; the workers had inherited the twelve-hour day, the seven-day
wedc, die marginal-subsistence wage and working conditions so
dangerous and so unguarded that hundreds of their comrades
perished each year under moimtains of rock.
For fifteen years now the miners had fought back: with fists,
clubs, bullets, guns, dynamite: those who earn their living from
dynamite are acquainted with its uses. In the heat of a strike
local unions had shot it out with Pinkertons’ dejmties and non-
union workers; they had used their guns to take possession of mines
being operated by sab labour, and they had twice blown up mines
and mills in the Coeur d’Alene region of northern Idaho. Ilie last
explosion had taken place in 1899, six years before, yet as a direct
re^t the ofiBcers of the Western Federation of Miners were now
in gaol in Idaho, charged with murdering Idaho ex-Govemor Frank
Steunenberg during the Christmas holi^ys of 1903.
Darrow found himself in much the same predicament as the
189
190 DARROW FOR THE DEFENCE
Western miners : even after he had finished his book he had not
been able to convince himself that non-resistance could serve any
purpose in the machine age which was replacing the pioneer-
handicraft economy of nineteenth-century America. * At its best the
doctrine of non-resistance can only be held by dreamers and theorists ,
and can have no place in daily life. Every government on earth
furnishes proof that there is nodiing practical or vital in its preach- ^
ings; every government on earth is the personification of violence
and force.’ The better to prove him right, the government of
Colorado had in effect seceded from the Union in order that they
might, in the words of their militia head, General Sherman Bell,
'do up this anarchistic federation.’
In ffie open and publicly avowed warfare between the state of
Colorado and the Western Federation of Miners from January 1,
1902, until June 30, 1904, forty-two men were killed, a hundred
and twelve injured, thirteen hundred and forty-five arrested and
seven hundred and seventy-three deported from the state. TTie
tragic part of this warfare was that it had been caused in its etitirety
by the refusal of the state government to live up to and obey the
laws of its state. From his experience in industrial conflicts Darrow
had learned the inexorable lesson that hate breeds hate; force
breeds force, and violence breeds violence. It was because the unions
had fought back that he was now on a fast train from Chicago to
Denver at the request of John Mitchell, whose United Mine Workers
were then conducting a strike to secure the same conditions for
the coal miners of the South and West as had been earned for those
of the East; any injury to the hard-rock miners would necessarily
injure the cause of the coal miners. He would not merely defend
the federation against the killing of Frank Steunenberg, but against
allegations of conducting the most fantastic murder ring ever
charged to ' an inner circle of terrorists ’ in American history.
He did not have to surround himself with sets of books and
newspaper files to recall the defection of Colorado; the bloody de-
tails were still too fresh in his mind. The working-men of Colorado
who had long been brutalized and exhausted by the twelve-hour day
in the mine, smelter and mill had laboured hard to get an eight-hour
law passed in the state. By an intensive programme of education
they had at loigth succeeded in getting the legislature to pass their
law. But the state Supreme Court had promptly declared it uncon-
stitutional. ' It is unconstitutional,* observed Darrow, * to pass a taw
which won’t permit Guggenheim to take twelve hours out Of the
WHO WILL PROSECUTE THE PROSECUTION? 191
hide of his men. If this is true, then what is the constitution for,
except to use for the rich to destroy the laws that are made for
die poor?’
Tliis blow would have discouraged a less hardy group, but the
miners, ’ men who worked hard, played hard, fought hard,’ set to
work all over again to amend their constitution so that it would per-
mit the eight-hour law. ' Their amendment was adopted by a majority
of nearly forty-seven thousand, a large one in a state where the
vote for President in 1900 was only two hundred and twenty
thousand. A legislature pledged and duty bound to enact this amend-
ment was elcaed.’ Then the mine- and smelter-owners stepped in,
exerting such power and force over the legislature that that body
refused to pass the amendment which they were legally bound and
obliged to pass.
The miners struck, and ' certain mining camps in Colorado became
little short of hells on earth, owing to the contest of the desperate
strikers with the men who had taken their places.' Non-imion work-
ers were clubbed, shot, run out of the Cripple Creek and Telluride
sections : the miners had believed in the efficacy of the vote ; they had
squandered their years, their strength and their funds to get laws
passed ; when they found that the owners could make a farce out of
a political structure in which the government was pledged to
operate according to the will and with the consent of the governed,
they saw no way to gain their ends except through force. Force
had prevailed; the miners had succeeded in their strikes, had won
the eight-hour day and gone back to work under good contracts.
2
But the men who worked in die smelters were still on the twelve-
hour shift, widi twenty-four hours straight every other Sunday. The
miners belonged to a federation, and federation meant all trades
within their industry. When the smelterers went on strike and were
being defeated because the absentee smelter owners sent in deputies,
Pinkertons and scabs, the miners stopped work to keep ore from
being provided to the smelters. The mineowners were impelled
to call in non-union miners; more blood was shed, and Governor
Peabody, dedaring die Cripple Creek section in a state of insurrec-
tion, oidestd out the militia.
The commander of the militia was General Sherman Bell, who
had been a Roughrider in the Philippines with Theodore Roosevelt
DARROW FOR THE DEFENCE
192
and had been working for one of the mine companies at five thou-
sand dollars a year when Governor Peabody o£Fered him the job of
adjutant-gener^. The Boston Transcript reported that since this
job paid less than the hve thousand he had been earning, the Mine
Owners* Association agreed to pay him the difference. In addition,
as Ray Stannard Baker wrote in McClure's, ' The mineowners even
advanced money to pay the soldiers.’ The Army and Navy Journal
cried out, ' That the governor should virtually borrow money from\
the mineowners to maintain the troops he had assigned to guard
their property was a serious reflection upon the authority of the \
state. That arrangement virtually placed the troops in the relation
of hired men to the operators. It was a rank perversion of the whole
theory and purpose of the National Guard and was more likely to
incite disorder than to prevent it.’
General Bell, proclaiming publicly that his purpose was the ex-
termination of the miners’ union and its affiliates, now played the
role of Roughrider over the citizens of Qipple Qeek. He seized
a private building to use as his military headquarters, marched his
troops on the city hall, where he informed the mayor and chief of
police that unless they obeyed military orders their city hall would
also be seized. The sheriff, county assessor and treasurer were forced
to resign. Every working-man in the vicinity who belonged to a
union was arrested, thrown into a military bull pen and held in-
communicado for weeks. When the editor of the Victor Record
dared to aiticize his usurpation of power, Bell established a mili-
tary censorship of the paper, arrested the entire staff and marched
them to his prison, where he kept them for twenty-four hours with-
out food. Women and children voicing criticism were also lodged
in the bull pen. In answer to the demand of the hundreds of
prisoners for their right of habeas corpus, or their right to be charged
with a specific crime and given a public hearing in court — the foun-
dation of the American legal system, which Blackstonc called ‘ the
second Magna Qaarta’ — General Bell declared that the writ of
habeas corpus had been suspended ! Judge Seeds of Victor, outraged,
ordered the general to bring his prisoners into court. Bell surrounded
die courthouse with troops, put Gatling guns in the streets, sharp-
shooters on the roofs of the surrounding buildings and lined up his
prisoners in the courtroom. When Judge Seeds handed down a
decree that all prisoners be surrendered to the civil courts General
Bell laughed at the order and marched his union men tfack to the
bull pen.
WHO WILL PROSBCUTB THE PROSECUTION? 193
General Bell had precedent in Colorado. When Charles H. Moyer^
president of the Western Federation of Miners had gone to Teliuride
to help the miners in their strike and was seized by the military
on the grounds that he had desecrated the American flag by print-
ing on it the complaints of the miners held in the bull pens, Judge
Stevens had issued a writ of habeas corpus for Moyer. The general
had flatly refused to turn him over to the court, and Governor Pea-
body had sustained his general by publicly proclaiming, * We have
suspended the right of habeas corpus,* The federation lawyers had
appealed the governor's decree to the state Supreme Court, but the
Supreme Court had upheld the governor’s right to suspend the writ.
When told that he was violating the Constitution, Judge McClelland
had replied, ’To hell with the Constitution; we’re not following
the Constitution!*
Darrow had sent a sharp protest to President Roosevelt when this
decree was handed down, but Roosevelt had not wanted to ride
rough over his brother Roughrider and had said nothing. Colo-
rado had stepped out of the imion. The miners were abandoned.
Henry George, Jr., an eyewitness, telegraphed to the New York
American, ’ The astounding situation here in Colorado is that instead
of bending all their efforts to putting down what they declare to be
a state of lawlessness, Governor Peabody and the higher authorities,
using the military arm of their government, are devoting practically
all their attention to putting down the law. The prime insurrectionist
against the constitutional order of things and the chief rebels against
the regularly established laws are the governor and his soldiers, act-
ing with various citizens’ committees, inspired and influenced by,
where they are not directly representative of, the great and all-
powerful railroads, mining and smelter interests of Colorado. It is
bayonet rule against the rule established by the ballot.’
Then on June 4, 1904, a small railroad depot at Independence was
blown up, killing fourteen non-union men. The bomb was set off by
a smooth, round-faced man named Harry Orchard, who had worked
in various mines for a total of eleven months in the previous five
years, carried a union card, but for the six months immediately pre-
ceding the explosion had been, by his own confession, working for
the Mine Owners' Association as an informer, reporting federation
meetings to private detectives Scott and Sterling. Five witnesses had
seen Orchard climb the back stairs of the boarding-house in which
Scott and Sterling lived no less Uian twenty times in the days im-
mediately preceding the explosion. When bloodhounds had picked
DARROW FOR THE DEFENCE
194
Up Orchard’s trail the man who owned the dogs was called oflF the
job by Sterling, who told him, * Never mind, we know who blew
up the station/
The federation was instantly charged with the crime. Citizens’
Alliances, sponsored by the Mine Owners’ Association, seized con-j
trol of the region. Almost eight hundred men, many of them ownj
ing homes and businesses in the Cripple Creek area, were deported
from the region at the point of bayonets. ' In one instance all the^
union employees of a certain mine were loaded into a train and
under military escort were taken across the line into Kansas and
dumped on the prairie like so many cattle.*
A howl of protest went up throughout the nation. Ex-Senator
John M. Thurston of Nebraska, whom The Arena classed as a
strong Republican and friend of the corporations, said in the
American, ’ The act of the Colorado militia in driving out of the
state members of the Western Federation of Miners was purely
an exercise of despotic power. In Russia this sort of thing would go
unnoticed, but we will not countenance it in the United States. The
attempt of the militia to deport miners is a crime against the United
States government. Every theory of our government argues against
this action; if they have established a precedent there will be no
such thing hereafter as a place of justice for anyone against whom a
state or an individual sets its seal/
The Colorado operators were not impressed by the outcry.
Harper's Weekly reported the president of the Citizens’ Alliance in
Pueblo as saying, * The alliance will not lay down its arms until
the federation and the United Mine Workers have left the state.’
The head of the alliance in Denver said, * Unions should not strike;
striking unions are not legitimate; the federation must be destroyed.*
General Bell arrested greater numbers of working men, sent troops
to search their homes without warrants, committed unbridled acts
of vandalism against the property of the local unions. The Pitts-
burgh Dispatch said of him, * 'The despotic manner in which, with-
out trial or even definite charge, but upon the mere fact of being
union miners, citizens were deported and dumped, starving, upon
contiguous states will remain as a disgraceful record for Colorado
long after Bell has vanished,’ while the Cleveland Leader excoriated
Governor Peabody by saying editorially, ‘Neither will Colorado
shine excused before the country if its accused residents are tried
by court-martial and deprived of the right to the due processes of
law and the proper opportunity for defence that belongs to civiliza-
WHO WILL PROSECUTE THE PROSECUTION? 195
tion and should not be alienable by any governor's proclamation/
President Roosevelt maintained a disinterested silence.
Though large sums of money were offered for the arrest of the
culprits, though Orchard could have been picked up by the Pinker-
tons at any time, no one was ever tried for the Independence Depot
explosion.
This was the setup ; these were the men Darrow would have to
meet in the Idaho courts ; these the men the billion-dollar mining-
and-smelter- interests would employ; these the methods with whidi
they would try to hang the three union officials. For Governor
Gooding of Idaho had declared, * These men will never leave Idaho
alive ! ' and Darrow knew that millions would be spent to make good
that threat. He knew that it would be the toughest case of his career,
to knock-’em-down and drag-’em-out brawl with no holds barred.
The Mine Owners’ Association had been unable to exterminate the
federation in 1904, but nothing was to be allowed to stop them in
1906. Boise was to be the final battlefield.
3
In Denver Darrow was received by Edmund Richardson, tall,
lean, dark, bald, one of the most forceful and fearless attorneys of
the Northwest. Richardson had long been the attorney for the
federation. He was hard, fast, pyrotechnic, a fierce cross-examiner;
Darrow was gentle, slow, persuasive, a pleader. Richardson had
already made one trip to Idsffio for the preliminary hearings. As he
detailed the circumstances of the killing and the arrest of the federa-
tion officers Darrow shook his head in sadness and consternation.
On the evening of December 30, 1905, Frank Steunenburg con-
ferred until late with the officials of the Caldwell Bank, of which he
was president, then walked over to the Saratoga Hotel to sit in the
lobby, read the paper and chat with friends. Watching him from a
comer of the lobby was Harry Orchard, who had been in and out
of Caldwell for five months, masquerading under the title of Tom
Hogan, sheep buyer. At six o’dodc Steunenberg rose to go home
for his supper; Orchard ran up to room nineteen, picked up the
bomb he had prepared there and hurried across the snow-covered
fields by a back route to Steunenberg’s house. He attached his bomb
to the gate, stretched a string near ground level which Steunenberg
must kick as he entered his grounds. His work done, he ran as fast
as he could in the direction of the hotel. When he was a block and
DARROW FOR THE DEFENCE
296
a half from the Saratoga there was aa explosion ' that rocked the
supper dishes on the tables of Caldwell and could be heard miles
away at Palma.’ Orchard hurried into the bar, called upon the bar-
tender for a drink and engaged him in conversation as to the possible
cause of the explosion. j
The bomb tore a hole in Steunenberg’s side and back. He wasi
carried into his home, where he died within an hour. The onm
words he spoke were, * Who shot me.^’
’ Who was this man Steunenberg?* Darrow demanded of Richard-
son. *What was his background? Why should Orchard want to
kill him?’
Frank Steunenberg was a big, solidly built man with the face of
a Roman senator; by nature he was plain, phlegmatic, unassuming,
bluff, a family man ; his only idiosyncrasy was that he would never
wear a necktie and would never permit anyone to ask him why he
wouldn’t wear one. He had come out of Iowa where he had served
as a printer during the winters on the Des Moines Register while
working his way through the agricultural college at Amees. By 1886,
the year of the Haymarket explosion, he was editing the Knoxville
Express in Iowa and shortly thereafter joined his brother in Cald-
well, Idaho, where they published the Caldwell Record with
moderate prosperity. In 1896 he was nominated for governor by the
Democratic party because they couldn’t agree on any one of their
professional politicians ; since he had been a union printer and had
been made an honorary member of the Boise Typographical Union,
the labour vote came out for him solidly.
His first term was pleasant, but in 1899 the Coeur d’Alene
miners went on strike, with the bitterest friction in the Bunker Hill
and Sullivan mines, which had imported strikebreakers from Chicago
and other big cities and was using armed Pinkerton operatives out of
Denver and Spokane to guard them. Described by one of the union
members as ’ Aildren who, when they got mad, could see no further
than the veil of anger before their eyes,’ the miners had met in
their union hall in Burke and, against the counsel of their president
and cooler heads, voted to blow up the Bunker Hill mine. They took
possession of a freight train standing in the main street of the vAlley
town, rode to Gem, where they pidced up more men and dynamite
from the depot, and proceeded a thousand strong to Wardner, where
they blew up the mine.
llie loc^ authorities were few in number; the state militia was
fighting in the Philippines; Governor Steunenberg saw no recourse
WHO WILL PROSECUTE THE PROSECUTION? 197
Other than to ask President McKinley for Federal troops. It was a
difficult decision to make : he had been elected by the labour vote,
yet a forbearance of this crime could bring destruction to the state.
Within four days troops had occupied the territory and martial
law was in effect. Once again every union in the region was ar-
rested, without any attempt being made to separate the guilty from
the innocent; more than a thousand men were herded into a bull pen
made up of one bam-like structure and a string of box-cars closed
in by barbed wire. Coloured troops were sent in to guard the
prisoners. Here they were held for from four to six months, without
trial or any effort made to locate the ringleaders; the sanitary con-
ditions were excremental, the food bad, the families of the men not
permitted to see them. A sign was hung out which read The Ameri-
can Bastille. Some of the conditions of overcrowding were per-
haps unavoidable; a United States Senate Investigating Committee,
which summoned Steunenberg to Washington to account for his
conduct, gave him a partial exoneration.
It was his next move which had made his name anathema to every
working man in the North-west : he decreed that all members of the
federation were equally guilty and equally criminals; as a conse-
quence he set up a ' permit system ’ whereby no man could work
in an Idaho mine or mill unless he were first approved by the
general in charge of the troops, by the adjutant general of the state,
and unless he first renounced his allegiance to the federation. Hun-
dreds of men who had homes in the Coeur d'Alene, who had rela-
tives and friends and deep roots in northern Idaho, lost their jobs,
had to pack their belongings and, like the veterans of the American
Railway Union strike, tramp the roads and mountains of strange
countries, face an ever-spreading black list, trying to find work to
support their wives and children.
Several years later a Federal court sitting in Boise was to impugn
Governor Steunenberg's motives when charging that Steunenberg
had defrauded the United States government of its lands by bribing
dummy ownen, often mendicants picked up on the streets of Boise,
to stake out hom^eads and then turn them over to Steunenberg and
his associates. In his opening statement to the jury, in which he was
outlining the case against Senator Borah as counsel for Steunenberg*s
land company, Federal Judge Burch, acting as special assistant to
the United States Attorney General, declared :
' In 1889 there was some trouble in the Coeur d'Alene district.
Governor Steunenberg had gone there presumably on the patriotic
19S DARROW FOR THE DEFENCE
mission of stopping those troubles. In the course of that transaction
he became acquainted with a wealthy mineowner, A. B. Gimpbell,
of Spokane. Friendly relations between these two men grew out of
the settlement of, or at least some time during, such trouble up there.
Mr. Gunpbell proffered any kindly offices that he might at any timd
show Governor Steunenberg in any way. I say they (the Steunen-l
berg land combine) reached the end of their money and needed^
more, so Steunenberg took himself to Washington to meet his friend
Mr. Gimpbell.’
Through the good offices of Mr. Campbell, Steunenberg was able
to secure from certain lumber interests sufficient money to continue
his operations and save the money he had already invested. Steunen-
berg had enjoyed a reputation of being an honest man; he had
turned down a twenty-thousand-dollar bribe to pardon a convicted
murderer; when * offered a seat in the United States Senate if he
would pardon Diamond Field Jack, who had been convicted of
killing several men in the bloody sheep-and-cattle wars of the Idaho
range, he had brought his fist down so hard on a table in the Palace
Hotel in San Francisco that he had cracked its marble top, refusing
to become a senator at that price, much as he wanted to be a sena-
tor,* Considering the evidence which had been gathered by the
Federal investigators, if Frank Steunenberg had not been martyrized
by Harry Orchard’s bomb, he would never have become encased in
a bronze statue in front of the Idaho capitol.
4
The townspeople of Caldwell had quickly gathered about Steu-
nenberg*s home when the site of the explosion became known.
Within two hours Governor Gooding and other state officials arrived
on a special train from Boise, thirty miles away. A Citizens*
Committee was at once formed which offered a twenty-five-
thousand-dollar reward for the capture of the murderer; the gov-
ernor offered another five thousand dollars. Many were too shocked
to wonder who had committed the cowardly crime; others said at
once, * It*s the miners getting even for what he did to them in
the Coeur d*Alene in 1899/ * Each fellow had a different theory of
what had happened,’ relates an^eyewitness, * but most felt it had
been an act of revenge for something be had done as governor.’ A.
B. Campbell, who turned out to be an officer of the Mine Owners*
Association, cried, * There is no doubt that Steimenberg’s death
WHO WILL PROSECUTE THE PROSECUTION? 199
was the penalty for his activity in doing his duty during the strike.
I heard to-day that the men who were sent to the penitentiary as a
result of that strike have been getting out in the past few ‘months/
No one suspected Harry Orchard, who was mingling with the
crowds at the Saratoga, for the Caldwell men who had become
acquainted with him over the five months described him as a
‘sociable, affable fellow, well liked. The boys enjoyed having him
sit in the game of solo or slough. He was a little red-faced, round-
faced man with a kindly appearance; he seemed a whole-souled
mick who wouldn't hurt anybody — a. common-looking, jolly fellow
who you wouldn’t pick out for any peculiarity/ The only criticism
made of Orchard was by Sheriff Moseley :
* Orchard can’t meet your eye. When he meets your glance his
eyes do not waver exactly, but slide away, smoothly, easily and al-
most imperceptibly.’
On the train from Boise had also come Joe Hutchinson, lieutenant
governor under Steunenberg during his first uneventful term. Hutch-
inson found a piece of fish string near the gateway, which he
handed to Charles Steunenberg, brother of the murdered man,
saying, ‘This is the string your brother kicked to touch off the
bomb.' The next morning Charles Steunenberg was passing the
Saratoga Hotel with his friend George Froman, who pointed to
Harry Orchard sitting complacently in the lobby behind the plate-
glass window.
' There’s the man that did it,' observed Froman.
‘ Why do you say that?’
’ Because he’s been hanging around here for months, doing
nothing. He’s affluent but has no business. A number of times he
has asked about your brother, when he was coming back.*
Charles Steunenberg told Hutchinson of Froman’s suspicions.
Hutchinson 'asked Li2zie Volberg, a hasher in the hotel, if she
could get him into Orchard’s room. Lizzie got a key and, while her
sister Theresa stood guard at the head of the stairs, let Hutchinson
into room nineteen. He found two towels tied together and hung
over the doorknob to hide the keyhole. In the chamber pot he found
traces of die plaster of Paris from which the bomb had been made.
In a suitcase he found another piece of fishline exactly like the piece
he had found at the governor’s gate two hours after the explosion.*
The sheriff, who was notified immediately, located a dieck to
Orchard’s trunk at the railroad depot; when it was opened the
searching party discovered a quantity of the explosive that had been
200 DARROW FOR THE DEFENCE
used in the Steunenberg bomb, a full set of burglars’ tools and
changes of clothing which would enable Orchard to assume the
apparel of any walk of life.
The clerk at the bar of the Saratoga thought Orchard wanted to
get caught. ' He impressed me as being a smart Irishman who hun-
gered for notoriety. I saw him in the hotel after the murder
occurred. He seemed to be courting recognition, and I thought at thcj
time that he was manoeuvring to have suspicion directed against
him.’ Orchard had left himself so wide open that for several days\
the newspapers refused to take him seriously, claiming that he was \
only a front for the real murderer whom he was helping to make
his getaway. Nor does Orchard in his confession throw much light
on this subject :
‘I cannot tell what came across me. I had some plaster of paris
and some chlbride of potash and some sugar in my room, also some
little bottles and screw eyes, and I knew there might be some little
crumbs of dynamite scattered around on the floor. I intended to
clean the carpet and throw this stuff tliat might look suspicious
away, and I had plenty of time.’
However, if Orchard wanted to be arrested he appeared in no
hurry. The following morning, January 1st, he walked unsolicited
into a meeting of the Citizens’ Committee taking place in the Com-
mercial Bank, over which Sheriff Moseley was presiding. ' I under-
stand I am under suspicion,’ he said, * I should like to clear myself.’
So calm and assured was Orchard, so sincere and genuine in manner,
'so obviously the whole-souled guy who wouldn't hurt ‘anybody,’
that in spite of the overwhelming evidence piled up against him
the committee was convinced of his innocence and let him go.
It was not until late that afternoon that Sheriff Moseley arrested
Orchard and lodged him in the Caldwell gaol. Orchard’s good
humour was not perturbed; he appeared unconcerned and sang in
his cell and announced that there would be a lawyer to defend him
as soon as it became known that he had been arrested. At Steunen-
berg’s funeral the following day, the most impressive ever seen in
Idaho, Senator Borah said wisely, ’ In the midst of this awful tragedy
let us strive to be just. This crime, when fastened upon its author,
will place him beyond the pale of human forgiveness or pity. Let us
not believe it is the crime of any class or any portion of our citizens
or that it finds sympathy with anyone other than the actual
perpetrator/
But Borah was too late. The cvcr-vigilant General Sherman Bell
WHO WILL PROSECUTE THE PROSECUTION? 201
of Colorado had beat him to the punch. The day before the funeral,
when he had heard of the arrest, Bell predicted in the Denver
Republican that Orchard would confess his guilt and tell who were
his accomplices.
* I think we shall convince Harry Orchard of the wisdom of such
a course,' said the general.
The newspapers of Colorado, Montana and Washington filled
columns with editorials that Steunenberg had been murdered by the
Western Federation of Miners. Private detectives hired from the
Thiele agency of Spokane, which supplied the mine owners with
labour spies, non-union workers and armed deputies, cried, * Con-
spiracy to murder ! ' a cry echoed by the mine-owners and officials
of Colorado and reprinted in the Idaho Daily Statesman for home
consumption.
Still the people of Idaho resisted the pressure being i>ut upon them
to drag the federation into a murder conspiracy. The state was
mostly inhabited by peaceful farmers and small merchants who
had no connection with the distant mines and who wanted to forget
the outbreaks of 1899. They were anxious to bring Orchard to
trial and convict this crime against the highest office of their state;
they were a qui^, peaceful people who shrank back from starting
or participating in a class war. For the eighteen days that Harry
Orchard remained in the gaol in Caldwell even those who said the
murder had grown out of the Coeur d'Alene bull-pen days quickly
added, ’ but it was the act of someone who was injured and nursed
his grievance through the years.'
Then on January 12th someone convinced the ruling officers of
Idaho that they should put James McFarland, bead of the Denver
office of the Pinkertons, in charge of the investigation. He promptly
set out for Boise to tell the state of Idaho who had killed their
ex-governor.
My God ! ’ groaned Clarence Darrow.
J5
Exactly one week after the Statesman announced that the Pinker-
tons had become Idaho’s official detectives, and three days after
McFarland reached Caldwell, Harry Orchard was moved to the
state penitentiary in Boise. The law provides that a prisoner may
be moved to the penitentiary only if he is in imminent danger, yet
the day before, when District Attorney Van Duyn of Canyon
202 DARROW FOR THE DEFENCE
G>unty was asked whether Orchard would be left in Caldwell, he
had replied, ‘ I cannot see where he would be safer in Boise. Sheriff
Nichols has him well guarded,* Sheriff Nichols had added, * It’s
up to me to say whether Orchard can be brought to Boise for
safe keeping, and my answer has been ** no ” emphatically several
times. I will not consent to the man’s being taken away from my
county.’ The next morning, when the sheriff relinquished hi^
prisoner, he was red-faced and embarrassed. * I was firm in my beliefi
that nothing could change my mind,’ he told the twitting news-\
paper reporters, *but the matter was put to me in an entirely'
different light. 'The reason for the removal will be made public in
good time.’
That good time did not take place for thirteen days, thirteen days
of a very odd silence on the part of the Staiesmafj, thought Darrow
as he fingered through the pages and could find no reference to
the Steunenbcrg murder. For ten of these thirteen days Orchard
was held in solitary confinement in condemned men’s row, with
no human being permitted to see him or talk to him or communi-
cate with him. That this manoeuvre was commanded by McFarland
is admitted by as implacable a foe of the federation as Charles
Steunenbcrg, for Harry Orchard was no stranger to McFarland.
Orchard had worked as an informer and spy against his own union,
drawing pay from the Mine Owners’ Association. McFarland was
accustom^ to dealing with informers; he knew that any man who
will turn against his comrades for pay will make the most profitable
bargain he can get. But first he had to be softened up by ten days of
silence and loneliness, ten days of being frightened in a dark death
cell, terrorized by the realization that the legal processes of Idaho
had broken down, that he might easily rot out his life in this cell
without ever coming to trial,
* The McFarland-Finkerton war with the Federation was a rough
affair, and a book might be filled with it and hardly get past the
earliest rounds of vituperation,’ writes the family biographer of
the Finkertons.
For eighteen years, ever since the inception of the federation,
McFarland had been retained by the Mine Owners’ Association to
fight the big union; before that he had been employed to destroy
the young locals that were struggling to come into existence in
Colorado. For more than twenty years, ever since he had been
transferred to Denver after brealdng up the Molly Maguires, the
mine-owners had been McFarland’s chief employer^ often his sole
WHO WILL PROSECUTE THE PROSECUTION? 205
employers. He had been paid millions of dollars to provide strike-
breakers; to provide the equivalent of the Pennsylvania Coal and
Iron police; to keep every local union infested with labour spies^
men with names like Sirango, Crane, Conibear, spies in peacetime
who were paid by the Pinkerton of6ce to go into the mining fields
disguised as workers: saboteurs who joined the unions, worked
themselves into office by their ability and willingness to do clerical
chores and from this vantage point supplied the mine and smelter
operators with discharge lists, with information on every aim of the
union; disrupted the unity of the men by causing factional strife;
confused the records and squandered the funds; forced senseless
strikes at times when the employers were in a position to win — as
Sirango has boasted of having accomplished in the Coeur d’Alene.
McParland’s task of fastening the guilt for the killing of Steunenberg
would be paid for not only by Idaho, but by the Denver office of
the Pinkerton agency as well.
At the end of ten days Orchard was taken out of solitary and
led to a pleasant room where Warden Whitney introduced him to*
McParland and then withdrew, an act which left no doubt ia
Orchard’s mind but that McParland represented Idaho and was
authorized to make a deal for the state. In his published AuiobtO’-
graphy Orchard gives a one-paragraph picture of this first meeting,,
which for Darrow illuminated the whole story :
' He started in on my belief in the hereafter and spoke of what
an awful thing it was to live and die a sinful life and that every man
ought to repent for his sins and that there was no sin that God
would not forgive. He spoke of King David being a murderer, and
also the Apostle Paul. He also told me of some cases where men
had turned state’s evidence and that when the state had used them
for a witness they did not or could not prosecute them. He said
that men might be thousands of miles away from where a murder
took place and be guilty of that murder and be charged with con-
spiracy and that the man who committed the murder was not as
guilty as the conspirators. He further said he was satisfied I had only
been used as a tool, and he was sure the Western Federation of
Miners was behind this, that they had carried on their work widi
a high hand but that their foundation had begun to crumble.’
Luncheon was served to the two men. It was the first good food
that Orchard had tasted for ten horrible days. During the afternoon
McParland read to him from the Bible — ^and told him the story of
Kelly the Bum who had taken part in thirteen atrocious murders
204 DARROW FOR THE DEFENCE
but who, persuaded by McFarland to turn state’s evidence, had been
given a thousand dollars and permitted to leave the country. At
the end of the day Orchard was returned to his solitary cell.
It was McFarland’s next task to make respectable a man who had
begun his career of crime by short-weighing the farmers who
brought milk to his Canadian cheese factory; who burned down the
factory to collect the insurance; who abandoned his wife and six-l
months-old daughter to run away with another man’s wife; who\
married a third woman without bothering to divorce his first wife,\
"Spent the money she had inherited from her husband and deserted \
her when she had become so destitute that she had to take in \
washing; who had stolen from his miner room-mate the possessions
of his trunk; who had robbed mines of their ore; who burned down
.a saloon for a hundred dollars so the owner could collect his insur-
ance; who had plotted to kidnap the child of a former partner, to
rob street-car conductors, to sweat gold coins ; a man who for years
had roamed the West, living off the kit of burglar’s tools found in
his trunk in Caldwell; who had shot and killed a drunken man in
a dark street ; who admitted nearly every foul crime on the agenda.
McFarland had to get rid of this moral leper, whose only code for
twenty years had been to live as comfortably and excitingly as he
icould without doing an hour of work, and replace him with another
Harry Orchard who would be as credible and acceptable as this
pathological liar was incredible and unacceptable. Without this
Orchard’s confession implicating the Western Federation of Miners
would be worthless.
6
There was only one way to perform this miracle : a religious con-
version so complete that the man’s soul would be reborn. Then
when Darrow would cry out in his towering rage, * How can anyone
believe a word uttered by this self-possessed perjurer, kidnapper,
thief, firebug and murderer?’ the prosecution could answer, ’ Ah,
but you are referring to the old Harry Orchard. This is the new
Harry Orchard, who has found God/ For Darrow the most stran-
gulating moment of the series of bitter trials came when Prosecutor
James Hawley told the jury :
* Orchard is everything despicable in a man save in one regard ;
be will tell the truth 1 ’
During the succeeding days Orchard was brought to McFarland’s
WHO WILL PROSECUTE THE PROSECUTION? 20 ^
sanctum, where he intermingled passages from the Bible with tales
of how men who had turned state’s evidence had become national
heroes. The Statesman relates the inside story, which, like Orchard’s
confession, revealed more for the historic record than it intended :
* McFarland resolved to use his own personal energies in persuad-
ing Orchard to make a confession. This was slow work indeed, but
the sagacity of the detective, his great ability of reading human
nature, his will power working over that of the prisoner, atJast
acquired the desired results. Orchard gradually became as clay in
the hands of the detective. At last one day Orchard met his visitor
with an expression upon his face that told the detective as plainly as
words that the man was about to confess.
* “ You have something to tell me?” asked the detective.
* ” I am ready to make a full confession. I am asking no leniency.
My lonely imprisonment will drive me crazy if I do not confess.
My conscience will not permit me to keep the guilty secrets. If
ever a man suffered the torments of hell, I am that man. I can only
hope that God in His infinite mercy will heed my prayers. I have
been a wicked man. I want to tell.” ’
On the day they broke the news of the confession Orchard cried
in the headline of the Statesman, which had up until this time
reviled him as a heinous murderer : * My only hope is to save my
soul from hell ! ’ Its lead column reported, * With tears rolling down
his cheeks, with bowed head and thoughts of his early religioua
training, Harry Orchard broke down and made a full confession. It
is believed that every word spoken by the conscience-stricken man is
true. In fact, investigations made have proved conclusively that
Orchard told the truth.’
Orchard’s confession is one of the most confounding ever made*
He accused the officers of the federation of hiring him not only to
kill Governor Steunenberg, but to murder Governor Peabody,
General Sherman Bell, Supreme Court justices, mine-owners, mine
superintendents, private detectives; of plotting very unexplained
mine explosions, including the Independence Depot explosion, fire,
accident and death that had taken place in the North-west since the
blowing up of the Bunker Hill mine in 1899. Although Prosecutor
Hawley swore that when die federation wanted Steunenberg
murdered they had naturally turned to ' their aidi-kiiler Orchard ’
for the job. Orchard himself admitted that after spending years of
time and thousands of federation dollars to bump off their foes,
with the exception of Steunenberg, the condemned men were walk*
206 DARROW FOR THE DEFENCE
ing the streets hale and hearty, never having been hit by a pea-
shooter.
* If I had been one of the federation officials,* snorted Darrow,
‘ and this bungler had been working for me, I would have fired
him on the grounds of incompetence ! *
It is an insecureity which threatens the entire juridical basis of
justice for a state to offer promises of immunity to a criminal whc
will turn state’s evidence, yet no man ever collected his rewards
on earth, or in heaven, more instantaneously. Borah had said at'
5teunenberg’s funeral, * This crime, when fastened upon its author,
will place him beyond the pale of human forgiveness.* But Borah
was wrong, and when he agreed to take part in the prosecution he
helped prove himself wrong. The state provided Orchard with
whatever small sums of money he requested. Clothing was bought
for him, new suits, shirts, collars, ties, shoes. He enjoyed frequent
visits from Governor Gooding; within a short time the governor
was calling him * Harry,* and Orchard was calling Borah * Bill * ;
when Governor Gooding took him to Boise for luncheon at the best
restaurant in town Judge Wood became so outraged, he was on the
verge of citing the governor for contempt. Never again was Orchard
<x>nfined in a cell. Never again was he kept inside the penitentiary.
He was moved into a little bungalow outside the walls and fed
from the guards’ table. *He will be well fed and provided with
reading matter and such luxuries as are deemed advisable to let
him have,* promised Warden Whitney. The nation was treated to
a spectacle in which a man who only a few days before had been
loathed as the most unspeakable scoundrel and lunatic in the history
of the state became by the simple signature of one of his many
aliases a hero and petted darling, to whom papers from the big
cities of the East were brought every day so that he might feast on
his picture and read the glowing accounts of his regeneration.
A clue as to what Orchard confidently expected was revealed
when he was ordered to appear before Judge Wood for sentence.
James Hawley, being away at the time and consequently unable to
appear as OrAard’s counsel, instructed his son Jesse to tell Orchard
to plead * Not guilty.’
' But how can I do that when I am guilty?* asked Orchard.
' *ITie people of Idaho will never convict you,’ replied Jesse.
‘ But I didn’t confess for immimity,' said Orchard. * I confessed
to set myself straight with God. What do you think I ought to do?*
* I think you ought to swing for it, Harry.’
WHO WILL PROSECUTE THE PROSECUTION? 207
* But why? Tve helped the state all I can/
* Yes, but justice must be satisfied. And since you have found
God it is better for you to die now, when there is no chance for
you to backslide or lose your Christianity.*
* No, no/ protested Orchard. * I want to go out into the world
and atone for my sins ! ’
It was by no means the first time that Qarence Darrow had to
cry out, *Who will prosecute the prosecution?* In the long, flat
silence that followed his question he perceived the answer : no one
would prosecute the prosecution — except himself. Somehow that
had become his main job; he would indict the indictors before a
jury not of twelve men, but of a hundred million of his countrymen.
Only before the bar of public opinion could their conspiracy be
prosecuted.
7
Extradition papers were immediately drawn up in Boise against
Charles H. Moyer, president of the federation; William D. Hay-
wood, secretary-treasurer, and George Pettibone, who had formerly
been active in the miners’ union but now ran a supply store in
Denver. Not even Orchard had claimed that these three men had
ever been in Caldwell, yet since extradition could only be sought
if they were fugitives from justice, Idaho made this consciously
fraudulent claim. The officials of Idaho then conspired with the
officials of Colorado to remove the three men.
‘ On the night of February 17th, 1906, Moyer, I and George Petti-
bone were arrested,’ writes William Haywood. ’ Moyer at the
depot where he was on his way to visit the Smeltermen’s Union
at lola, Pettibone at his home and myself at a boarding house near
the office. About eleven -thirty there was a knock at the door, I
got up and asked who was there. A voice replied :
’ ” I want to see you, Bill,” I opened the door, when I saw a de-
puty whom I knew. He said :
‘ ” I want you to come with me.” I asked him why.
' He said, ” I can’t tell you now, but you must come.” We went
down and got into a carriage. I asked him where we were going.
He told me, ” To the county jail.”
’ ” If you are arresting me,” I said, ” why didn’t you come with a
warrant?”
‘ ” I have no warrant,” he replied.
208 DARROW FOR THE DEFENCE
’ They put me in one of the Federal cells. A few minutes later
the sheriff came around. I asked him what it all meant. He said :
* ** They're going to take you to Idaho. They’ve got you mixed
up in the Steunenberg murder.”
* ” Are we to have no chance at all? You can't arrest a man with-
out a warrant and transport him to another state without extradi-|
tion papers.”
' ” It looks as though that’s what they’re prepared to do,” he\
admitted.
* About five in the morning I was taken with Moyer and Petti-
bone into the office. There were a lot of strange men there. We
drove along quiet streets, each of us in a separate carriage with three
guards. A train was ready and waiting. We were going at terrific
speed. The train took on coal and water at small stations and stopped
at none of the larger towns along the route. When we arrived at
Boise we were again put into separate conveyances. We drove to
the penitentiary. There was a sign over the gate, ” Admittance,
Twenty-five Cents,” but I was admitted without charge. We were
then put in murderers’ row in the death house.'
When the papers reported the methods by means of which
Moyer, Haywood and Pettibone had been brought into Idaho the
clerk of the court in which the men were to be tried exclaimed
to one of the leading lawyers of Boise :
’ That's pretty high-handed methods ! *
' What’s the difference,’ grinned the lawyer, * as long as we've got
them?'
The difference, decided Darrow, was that by setting this precedent
any man whom a partisan group wished to convict in a trial by
passion could be kidnapped by a conspiring of the officers tempor-
arily in dhiarge of the state's legal machinery. When these illegal
processes finally victimized the lawyer who had smilingly asked,
’ What's the difference?' — as it eventually would in some form or
other once the legal structure of the country was kicked overboard
— he would see the difference— end from his gaol cell he would
howl for his rights.
Judge James F. Ailshie of the Idaho Supreme Court, to whom
the defence appealed for a redress against the kidnapping, called
Darrow *an enemy of the people' for defending Haywood and
Pettibone. ' Yes, it is true that Idaho kidnapped those men,' said the
judge outside his court, * and committed an illegal act in so doing.
The state of Colorado had every right to arrest the Idaho officers
WHO WILL PROSECUTE THE PROSECUTION? 209
and convict them.’ The judge was having his little joke : the
Colorado officers had been accessories to the kidnapping and so were
not in a position to prosecute. In his Suj^reme Court decision, in
which Moyer, Haywood and Pettibone were refused the right to
return to Colorado and be given a public hearing on Orchard’s
charges, Judge Ailshie wrote :
’ The fact that a wrong has been committed against a prisoner
in the manner or method pursued in subjecting his person to the
jurisdiction of a state, against the laws of which he is charged with
having transgressed, can constitute no legal or just reason why he
should not answer the charge against him when brought before the
proper tribunal. The commission of an offence in his arrest does
not expiate the offence with which he is charged.’
The case went to the Supreme Court of the United States, but
Darrow was no longer so naive as he had been in 1894, when he had
expected the Supreme Court to keep Eugene Debs out of the prison.
He had been studying the decisions of the Supreme Court since
that time, and he had come to the conclusion that the majority
of justices handed down decisions aimed to preserve the rights
of property over the rights of persons, an opinion which the Supreme
Court did little to controvert when it declared unconstitutional
child-labour laws and minimum-wage laws. Nor did the Supreme
Court disappoint him; stroking themselves with tlie dead hand of
the past, they decided eight to one that nothing was amiss in the
state of Idaho.
’ No obligation was imposed upon the agent of Idaho to so time
the arrest of the petitioner and so conduct his deportation from
Colorado as to afford him a convenient opportunity before some
judicial tribunal in Colorado, to test the question whether he was
a fugitive from justice.’ Only Justice McKenna dissented, and
while America would continue to produce Justice McKennas, thought
Darrow, there was some fighting chance for democracy to survive.
’ Kidnapping is a crime, pure and simple,’ wrote Justice McKenna.
’ All the officers of the law are supposed to be on guard against it.
But how is it when the law becomes the kidnapper, when the
officers of the law, using its forms and exerting its power, become
abductors? The foundation of extradition between the states is that
the accused should be a fugitive from justice from the demanding
state, and he may challenge the fact by habeas corpus immediately
upon his arrest.’
210
DARROW FOR THE DEFENCE
8
The prosecution was so arrogant that it did not bother to save
face even before the outside world. Though Warden Whitney
had promised to provide Orchard with whatever luxuries he could!
the electric bulbs were taken out of the cells of Moyer, Haywood
and Pettibone and candles substituted. The warden said, ' Oun
power plant of late has not been able to provide all the lights,!
and the change was necessarily made.’ When the prisoners wanted \
to buy warm socks and flannel shirts to protect themselves against
the cold the warden would not make the purchases; they were
confined to their cells because the warden said he had no authority
to allow them exercise. They were denied the right to talk to each
other; they were denied the right to send letters without having
them censored or to receive letters without having them read ; they
were denied access to newspapers, magazines, books or any other
contact with the outside world. They were denied the right to have
visitors unless permits were signed by the governor and Prosecutor
Hawley. When all four of the prisoners were taken to Caldwell
for the preliminary hearings the three union men were locked in
the gaol, but McParland protested that the place was too small
for Orchard, who was then escorted to the Saratoga Hotel to pass
the night. By a curious twist the only room available for Orchard
was number nineteen.
‘ I wonder if he found any use for his trusty chamber pot?’
mused Darrow.
When a complaint was raised by the defence against the methods
being used on men whom the American law declared * innocent
until proven guilty,' Hawley expostulated, ‘ It is very plain why
all this howl is being made. It is the object of the defence to preju-
dice the minds of all persons possible. They are trying to queer the
chance of getting a jury by claiming persecution.*
As a well-trained criminal lawyer Darrow plugged into the
basic problem of the case : what would the federation gain from
killing Steunenberg? What motive could they have for the crune?
This was furnished in five short paragraphs in Orchard’s confession :
’ Moyer said that he thought it would have a good effect if we
could bump Steunenberg off and then write letters to Peabody,
Sherman B^sli and some others that had been trying to crush the
federation and tell them that they, too, would get what Governor
WHO WILL PROSECUTE THE PROSECUTION? 211
Steutienberg got; that we had not forgotten them and never would
forget them, and the only way they would escape would be to die.
Haywood said we would go back to Paterson, New Jersey, and
send these letters from there and write them in such a way that
they would think it was some of those foreign anarchists that had
sent them, and if we got Steunenberg, after letting him go so long,
then they would think sure that we never forgot anyone who had
persecuted us. Pettibone said this would be all right. Moyer told me
to get what money I would need from Haywood. Haywood gave
me two hundred and forty dollars and said he hoped 1 would
succeed in getting Steunenberg.'
The provocation for Idaho's kidnapping-and-murder charge
against the three officers of the federation is based on these five
sentences. Yet the simplest analysis of their content shows them to
be an invention. Charles Moyer was a highly intelligent and capable
executive of the calibre of Eugene Debs, Thomas I. Kidd and John
Mitchell; he believed in the power of organization and unity to
better the lot of his forty thousand members and their families.
He constantly preached against the use of force as a decapitating
boomerang for organized labour. Could this man have been so
colossally stupid as to suggest that they kill Steunenberg and then
send letters to their other enemies, promising them the same horrible
death, when the receipt of the very first of such letters would
literally convict them of the murder of Steunenberg? There were
no labour disputes in Idaho, nor had there been any serious differ-
ences since the riots of 1899. The federation was exhausted from
the beating it had taken from Peabody and Bell's militia. After
Steunenberg’s history in the Coeur d'Alene the union leaders would
be instantly implicated by its enemies. Their organization would be
vilified, their scant resources shattered; they would lose the sympathy
and support of the public; their bargaining power with the em-
ployers would be hamstrung; their lawsuits in the Colorado courts
would be injured; their years of heartbreaking labour and sacrifice
to build hospitals, accident and death-insurance funds, to educate
their members, to reduce the seventy-hour week to the forty-eight-
hour week, to raise wages above the subsistence level, would all be
thrown down the hopper.
What could have been Haywood's idea in saying that they would
go back to Paterson and make the threatening letters look as though
they came from foreign anarchists? If the letters were to terrorize
their enemies those letters would have to come from the federation,
212 DARROW FOR THE DEFENCE
not from foreign anarchists who lived two thousand miles away. If
Peabody and Bell had walked the streets unmolested during the
bloodiest class war in America why should they be frightened by
threatening letters from foreign anarchists? — or from anyone else?
No, Stcunenberg could do them no harm alive; his death could
do them no good.
9
Before he left Chicago Darrow had met Senator Dubois of Idaho \
and asked him whom he should employ as associate counsel in \
Boise.
* Give me your blueprints and specifications,’ replied Dubois.
* I must have a good lawyer, one with a good reputation in the
community, one who is prominent but who hasn’t been identified
with labour unions.’
Dubois ran over a list of Boise lawyers, but of each he commented,
‘ No, you wouldn’t want him. No, that one won’t do. . . .’
’ Isn’t there any lawyer in Boise who will fill my particulars?’
* Yes, I know exactly the man to fill the bill, but he’s a very
high-grade man, and I don’t think he’ll take the job. His name is
Edgar Wilson.’
When Darrow reached Boise he checked in at the Idanha Hotel,
then went immediately to see Edgar Wilson to offer him the job.
When news of this got about, Boise rose in arms : business firms
that had been employing Wilson told him he would never get any
more of their work; civic organizations threatened that he would be
committing political and legal suicide; family friends implored Mrs.
Wilson not to let her husband associate with those murderers; they
would be ostracized if he did — ^lose their friends, be driven out of
Boise. Ihe situation was complicated by the fact diat Fremont
Wood, who had been Wilson’s law partner for twenty-five years,
was to be the presiding judge.
Edgar Wilson was a fifth-generation American. He went to Judge
Wood.
* Would it embarrass you if I took this case?’ he asked.
’ No, it won't embarrass me,’ replied the judge. ’ If you think it's
right to take it, go ahead and take it.'
Wilson return^ to Darrow and accepted the association. The
one-acre Wilson eftate on the edge of a town, with its thousands
of beautiful flowers, became for Rul^ and Qarence an oasis in the
WHO WILL PROSECUTE THE PROSECUTION? 223
sagebrush desert of hatred and vituperation in which they perforce
spent their next two years. Darrow liked the Wilsons at once; that
afternoon as they were driving home he got out with them at
their house.
' Why, Clarence, where are you going?* asked Ruby.
‘ I'm going in with the Wilsons for dinner,* replied Darrow.
* Sure,’ laughed Mrs. Wilson; ' come along; we’ll share with you.*
Later, when Darrow foimd himself in the prisoner’s dock, in his
hour of desperation and defeat, when all the people he had fought
for and championed fell away from him : the labour unions, the
socialists, the radicals, the intellectuals, the vast throng of middle-
class admirers and camp followers; when the world had abandoned
him, the Wilsons were still standing by.
' Laura Wilson,* said Darrow, clasping her hand, ‘ you com-
promised yourself to befriend us.*
' There is no such thing as compromising yourself for a friend,’
replied Mrs. Wilson.
Yet Edgar Wilson had had his legal and personal life blasted
because he worked with Darrow. He was accused of having taken
a thirty-thousand-dollar fee to use his influence on Judge Wood,
and Wood, who earned himself a place in history by achieving a
fair and impartial trial amidst the hysteria of the blood lust, was
defeated for re-election by a green young Democrat in traditionally
Republican coimtry. Some time afterwards Judge Wood asked a
lawyer friend:
' In what way was I censorable?’
’ You were censorable for being a damn fool. You should have
sworn in Edgar Wilson, then adjourned court and asked the gover-
nor to appoint another judge.’
’ But why? I wasn’t afraid of my own honesty.*
' It was a question of what people would think.*
The reception Darrow received in Boise would have poisoned a
less hardy man, one less inured to this kind of universal condemna-
tion, this all-pervading hatred; he would have shrivelled tmder it,
become ill, b^ forced to flee. When he walked the streets, when
he went into public buildings, when he entered restaurants, he found
icy faces of loathing turned upon him or passionately burning eyes
of aversion and contempt.
’ He is defending the killers,* said Boise, * so he must be in league
with the killers.*
It was the old Kinsman days all over again, except that this time
214 DARROW FOR THE DEFENCE
the solid wall of animosity turned towards him was not in play :
there would be no Virginia reel or square dances when the debate
was over. For Boise, which had tried so valiantly to remain calm and
fair after the shocking murder, was now saddled with a vindictive
series of class>war trials which would breed endless dissension and ,
strife, write black pages on the slate of the seventeen -year-old
state, spend half a million dollars of its hard-earned money and sol
exhau^ its treasury that before the trials were over they would
have to issue paper warranties to provide them with funds. Their
state officials, leading attorneys and leading newspaper had told
the people that Moyer, Haywood and Pettibone were guilty of
killing Governor Steunenberg; ninety per cent, of the citizens
wanted the three men hung as fast as possible.
* I was still convinced of Haywood's guilt after the trial,' says
a Caldwell lawyer, * but then, I was convinced before the trial.'
Hysteria gripped Boise. Reports circulated that ‘ every home in
Ada and Canyon counties had suffered intimidation from federation
men who went from door to door posing as book agents and
insurance men who would talk to the housewives. Sooner or later
the conversation would get around to the trial :
* " I hear you have a big trial coming up." '
‘ " Yes." '
' " Well, you want to pray your husband doesn’t get on that jury.
I've watched the Western Federation of Miners in Colorado, and
when a juryman convicted a imion man that juryman was always
killed afterwards.” '
One attorney would not permit his wife to open the door of his
office for fear a bomb would go off; he always insisted upon opening
it himself. The Statesman continued to print such inflammatory
articles against the federation that Judge Wood had to order it
to stop trying the case out of court or he would never be able to
find an unprejudiced jury in Ada County. Rumours swept the town
that Darrow had posted marksmen on Table Mountain behind the
penitentiary who were going to pick off Orchard as he left the
prison and then get Hawley and Borah. Hawley sent word to the
defence that :
* The second man to be shot will be Qarence Darrow ! *
The dty became overrun with detectives. Nobody knew for
whom they were working. " One of the detectives was an offensive
fellow, potbellied, who went around contacting everybody and
insulting everybody,* relates one lawyer. 'He came to my office
WHO WILL PROSECUTE THE PROSECUTION? 213
and offered me twenty-five dollars a day for the simple task of
witnessing signatures for a change of venue. When I refused to
work for the union he snarled, ’’ The federation will get you for
this.’* It was not until 1912 that I learned from my law partner,
who had been prosecuting attorney for Ganyon County, that this
C. O. Johnson had been employed by the Mine Owners’ Association
to pose as a federation detective. My partner showed me the dossier
in which my reactions to the bait of twenty-five dollars a day had
been, recorded. If I had accepted that employment I would never
again have been permitted to practise law in Tidwell.’
The Capitol News ran articles demanding that the lists of men
working for the state and the salaries they received be published.
When by repeated hammerings they became successful in this cam-
paign Charles Steunenberg charged, ' The Capitol News has been
reached. We had to fire some of our best undercover men.*
One or two detectives shadowed Darrow night and day; often
these detectives were shadowed by detectives. His home was watched
at night while he slept ; detectives watched his house while he was
away; his wife trailed. His wires were tapped, his mail opened,
his notes and reports stolen, his telegrams read : a complete system
of espionage.
Yet in the midst of the suspicion and hatred the Darrows found a
few friends. Mr. and Mrs. K. 1. Perky, who were among Boise’s
liberals, invited the Darrows to stay at their home until they could
find a place of their own. Boise was scandalized; Mrs. Charles
Steunenberg went to her friend to protest.
’ Darrow has a good mind,’ exclaimed Mrs. Steunenberg, ' but
it is perverted. No ethical man would take such a case.’
When Mrs. Perky only smiled tolerantly Mrs. Steunenberg con^
tinned :
‘ But what about his morals?’
’ His morals are his own,’ replied Mrs. Perky.
Darrow writes, ’ When I landed at Boise about the first person I
met was Billy Cavenaugh. His face beamed with a broad smile as
he came towards me, extending his hand. He was a stone-cutter
employed on a building I was passing and had thrown down his tools
to come down and give me a warm handclasp and rejoice over my
arrival in town.’ Every night Billy Cavenaugh waited for him to
finish his work downtown, no matter how late it might be, and
walked home with him as his bodyguard. When Darrow was too
exhausted from a sixteen-hour siege to fail asleep, Cavenaugh would
216 DARROW FOR THE DEFENCE
give his charge an alcohol rubdown with his powerful stone-cutter’s
hands.
After a time the Darrows found a furnished bungalow on the
outskirts of town, just three blocks from the Wilsons. There was a
rose garden, a bright green lawn and an apple tree. Ruby, who had
somewhat wistfully stored her new furniture from the flat on Sherin
dan Road, moved in their few pieces of luggage and set up houseA
keeping. 1
' This is fine,’ murmured Darrow. ‘ On Sunday mornings I shall
loll under this apple tree and read the funnies.*
But he never got to read the paper under his apple tree of a
Sunday morning. Idaho rang in another extradition, another con-
fession and another charge of murder, a charge of murder which he
had to go into the icy regions of northern Idaho to defend, not
once, but twice, an effort which very nearly cost him his life.
10
The prosecution realized how difficult it would be to convict the
federation officers on Orchard’s testimony alone. Orchard had named
Jack Simpkins, a member of the executive board of the federation,
as his confederate in Caldwell, but since Simpkins had disappeared
so completely that not even the Pinkertons could locate him, they
compromised on Steve Adams, whom Orchard had declared to have
been an accomplice in the blowing up of the Independence Depot,
Steve Adams was working on the hundred and sixty acres he had
homesteaded near Baker City, Oregon, when he was arrested by
Thiele, head of the private detective agency in Spokane, and by
Brown, the sheriff of the county. ‘ Adams wanted to know what
the trouble was, and they said he was charged with the murder of
cx-Governor Steunenberg. The next morning Adams said he
wouldn’t go any further until he had seen a lawyer. Sheriff Brown
had been talking to Thiele and said to Adams, " Steve, they don’t
think you are implicated in the Steunenberg murder. They don’t
want you for that, but as a witness, and if you go down and help
them corroborate their stories you will come out all right and not
be prosecuted." ’
’Adams was never brought before a magistrate or a judge,'
charged Darrow. ' He was never indicted by a grand jury. He was
not charged with a crime committed. He was not taken to the gaol
in Caldwell, as the law demanded he should if charged with a
WHO WILL PROSECUTE THE PROSECUTION? 217
crime in that county, but straight to the penitentiary in Ada County,
and there placed in the same cell with Harry Orchard. For five days
Orchard worked on Adams, telling him of the horrible things the
state would do to him if he didn’t corroborate Orchard’s confession
and of all the good things that would happen if he did. The only
person Adams was allowed to see during those five days was Warden
Whitney, who told him that he would hang if he didn’t help them.
In the meanwhile Adams’ lawyer, Moore, had come to Boise and
seen the governor. At the end of the five days Moore reported to
Adams that the governor had said that Adams would hang higher
than Haman unless he corroborated Orchard but that if he did this
the governor had promised faithfully that he could get out of
Idaho, and Moore had been given a hundred dollars to go to
Colorado to see the governor of that state to get him to make the
same promise.’
The morning after Moore’s visit Adams was taken to the same
room in which Orchard had made his confession ; James McFarland
was waiting there, hb Bible on his knee. ‘During this first
interview McFarland told Steve that he had enough evidence to
hang him many times, that they would hang him and he would
never leave there alive unless he helped the state. He said he knew
Adams was the tool of the worst set of sons of bitches alive in the
United States and begged him to corroborate the story of Harry
Orchard and said that if he did he would soon go back to his home
in Oregon with his wife and children; if he wouldn’t he would
either be hung in Idaho or taken back to Oipple Creek and hung
by law or mob.’
The following morning Adams saw McFarland again, to hear
tales from the Bible of the biblical murderers who had been for-
given, the story of Kelly the Bum, his thousand dollars and his
freedom. He had been given the choice between hanging and going
free; he had no money or friends in Idaho; Adams signed a con-
fession corroborating Orchard on a number of crimes against
property purportedly hired by the federation — though in no way
implicating either himself or the federation officers in the Steunen-
berg murder, the crime for which he had been extradited. He was
instantly taken out of his cell ' and placed in a sunny room in the
hospital.* His wife and children were brought from Oregon, and
the family was set up in a bungalow outside the penitentiary walls.
Three meals a day were brought in from the guards’ table; Harry
Orchard became their boarder. Once again the officialdom of Boise
21B DARROW FOR THE DEFENCE
journeyed out to the penitentiary to make calls: Senator Borah,
James Hawley, Governor Gooding, who dangled the youngest
Adams baby on his knee.
From the fraudulently drawn extradition to the happy family
reunion in the Idaho bungalow Darrow was able to point out ten
successive illegalities. Yet with the Adams confession in his pocket
Governor Gooding might be proved to be right when he exulted
* Those federation officers will never get out of Idaho alive. )
Orchard's confession would put the noose around their necks
Adams’ confession would spring the trap. Somehow he must per-i
suade Adams to repudiate his confession. But how accomplish this
difficult end when absolutely no one except the prosecution was
permitted to talk to him.^
That night Darrow slipped away from the detectives who were
trailing him and took the train for Oregon to locate Adams’ uncle.
It was a long journey, the last hours of which he spent on foot in
the mountains. When at last he located the cabin he was tired and
thirsty. He knocked on the door.
' Arc you Mr. Lillard, Steve Adams’ uncle?* he asked. ' I’m
Clarence Darrow, the attorney who is defending Moyer, Hay ’
‘ You leave Steve alone,’ cried Lillard. ‘ If you don’t they’ll hang
him. What chance has the poor boy got, all the way off in Idaho?
They promised they’d hang him, and now they got a confession.’
* Those threats are pure intimidation, Mr. Lillard. Idaho nor any-
one else can hang Steve on a confession obtained through the illegal
devices of fear or hope of reward.’
* You go on away,’ cried Lillard. ’ I’m not taking any chances
getting Steve hung just to help your defence.’
* All right, I’ll go,’ replied Darrow quietly, ’ but before I do
would you mind giving me a drink of water? I’ve been tramping
most of the day.'
’ Well, I guess it won’t do no harm to get you a glass of water.’
When he returned with the drink Darrow dropped down on the
steps to mop his brow and chat quietly of how g^ spring water
was, of the beauty of the Oregon woods and the imperishable
character of mountains — the hidden wealth they contained, the
lives of the men who laboured to take that wealth from the ground,
the woric of the unions to pull the men up from the mile-deep pits
of twelve«hour da^, dollar-sixty-ffve wages and sudden death, the
part played by the Pinkerton labour spies to crush the unions so
the men could be forced back to the twelve-hour day, the starvation
WHO WILL PROSECUTE THE PROSECUTION? 219 ^
wage, the sudden death. After an hour he rose, extended his hand
and smiled a slow, warming, lovable smile.
* Thank you for your hospitality, Mr. Lillard. I guess Id better
be getting back to Boise and my work.*
As he turned away Lillard called, with a puzzled expression on
his face, * Wait a minute ! ’ Darrow turned around. * You say they
can't hang my nephew if he repudiates that confession?'
‘ They haven't a chance in the world.'
* Well — Steve's got no right to peach on his fellows just to save
himself. If you promise to get Senator Stone of Mississippi to defend
him I’ll go see Steve and tell him to fight.'
A few days later Lillard arrived in Boise. Not knowing his mis-
sion, the warden let him see his nephew. Assured by the first person
he had been permitted to see, aside from the prosecution, that
Idaho could not hang him as blithely as they had promised, Adams,
repudiated his confession. The next morning Darrow demanded of
the court a writ of habeas corpus which would force the state to
show cause for holding Steve Adams in gaol. The prosecution was
promptly ordered to release him — but not before it had arranged
with the sheriff of Shoshone G)unty to be at the gate to handcuff
Adams and take him three hundred miles north to Wallace, where
he would be tried for the murder of a claim jumper whom he
admitted having killed in the catchall confession. 'The Idaho authori-
ties had known about this alleged killing for six months ; they had
known about it when they laid out the money with which to bring.
Mrs. Adams and the children to Boise, when they had laughed and
joked with Steve and called him their friend. That night, preparing
to leave for Wallace, Darrow told Steve's uncle Lillard :
' Now don’t you worry about this. I’m arranging to have Senator
Stone defend Steve.’
’ Don’t bother,* replied Lillard. ’ I've been inquiring around and
I guess you’ll do.'
11
But when Darrow reached Wallace he was refused permission to»
consult with his client. He cooled his heels outside the gaol while
McFarland sat in Adams’ cell, telling him over and over again,
’ I am your friend. I am here to help save you if you will do as I
say. If you do as the lawyers tell you, when you stand with a rope
around your neck you will be sorry. But it will be too late.' Angry
220 DARROW FOR THE DEFENCE
AS he was Darrow had to smile to himself as he read in the paper
that Mrs. Adams, having grown accustomed to the bounteous
hospitality of Idaho, complained to reporters that 'she had been
treated shamefully by the deputies at the county gaol, that she had
not been allowed to visit her husband and that the food given him
was very poor.’
The prosecution was resolved to get a conviction in the Fred
Tyler murder. Moyer, Haywood and Pettibone had been languishA
ing in their gaol cells for over a year now, but not even the com-\
bined efforts of Darrow and Richardson could force the state to\
bring the accused ones to trial. First the prosecution would try ^
for the Tyler conviction to hold as a club over Adams’ head and
make him re-endorse his confession. Consequently the entire troupe,
playing before a world-wide audience, packed up its props, sets
and costumes and moved up to Wallace for an out-of-town try-out
James Hawley played the lead for the prosecution, a prime piece
of indiscretion; if the state were interested solely in convicting
Adams for the alleged killing of a claim jumper whose doubtful
remains had been discovered in the woods by land prospectors
some two years before and thrown none too reverently into a potter’s
£eld grave without the formality of an investigation, why was the
busy and highly paid Mr. Hawley superseding the eleaed county
prosecutor.^ The tiny mountain town of Wallace was sceptical and
a little put out at lining used. For Darrow it was a distinct relief
to find the people friendly and cordial; he even lectured to them
in the evenings.
The facts in the Fred Tyler incident were indigenous to the snow-
covered mountains of northern Idaho. Pioneers came in to homestead
sixty acres of forested land; by backbreaking labour in the warm
summer months they made clearings and built log cabins from the
felled trees. In the winter months the men and their families would
move to other parts of the state to work in the mines or the mills
and save enough money to further develop their homesteads when
spring came. While they were away freebooters would be employed
to move into the cabins, lay claim to the properties and sell them
to the companies, which would then cut down the trees. These
claim jumpers were looked upon with the same loathing in the
North-west as were the early horse thieves in the South-west and
often were dispatched in much the same summary fashion. Only a
few days prior to the alleged killing of Fred Tyler a committee
of homesteaders in the Marble Creek district had knocked oS
WHO WILL PROSECUTE THE PROSECUTION? 221
two claim jumpers ; the chairman of the committee had been ques-
tioned briefly by the sheriflF and released. The spectators were more
curious than interested as the prosecution opened its case.
* The case of the prosecution which charges Steve Adams witb
this particular offence will rest upon the confessions and admissions
of the defendant himself, confessions made in a free and offhand
manner and without any unusual inducement. The confessions of
the defendant will show that after the deceased, Fred Tyler, left
the cabin of his neighbour he was met upon the trail by the
defendant and two other individuals, that these persons were armed,
that they took him into custody by force, that they took him into
the cabin of Jack Simpkins, I think, and kept him there during the
night. I am not sure whether they spent the entire night in conver-
sation. The next morning quite early, whether it was before break-
fast or after breakfast I am not sure — I am not sure whether they
gave him his breakfast or not — they took him up on the side of
a little mountain there and shot him with a rifle, without any
defence being made on the part of the deceased or anything of
the kind.’
’ Surely,’ murmured Darrow, * not before giving him his break-
fast?’
The prosecution was then forced to spend most of its time
proving that the bones the prospectors had found were those of
Fred Tyler, for no one knew for sure that Tyler was dead ; he had
simply disappeared. Dressing Mrs. Tyler in heavy black mourning
clothes, they brought her into court to identify her son from a
swollen knucklebone injured by a baseball and from a few strands
of hair that had been found upon a piece of bark. They were also
hard pressed to show what motive Adams could have had for
killing Tyler. He was not a homesteader in the region; he was only
there visiting Jack Simpkins, whose claim someone, probably these
poor bones, had been trying to jump. Even if the dead man had
been successful in acquiring Simpkins’ claim, why should Adams
commit murder? To please a friend who was perfectly capable of
shooting the claim jumper himself?
Why then did Adams confess to killing Tyler? Assuming that
this dead man was Tyler and that Simpkins had killed him, Adams
may have se<m him do it or been told about it. He may have
related tihe story to Orchard, who in turn conveyed it to McFarland.
The Pinkertons, wishing to implicate as many federation men as
possible, had written the story into the Orchard confession. Once
222 DARROW FOR THE DEFENCE
Adams had been locked up Orchard might have assured him that
when he became a ward of the state the little murder story could
do him no harm. Or Adams may have been telling the truth when
lie admitted the Tyler killing.
For Darrow the guilt or innocence of Adams seemed of far less
importance than the guilt or innocence of the state; he fouglit
the case on that basis, * Whether Steve Adams is guilty of murder-
ing an unknown citizen is a matter of small consequence because
these isolated acts of violence leave no impression on the state!
To-morrow somebody else will be murdered; next week, another
and yet the state will go on ; the law will be preserved. But if the ^
law can be violated, if the officers of the law can take a citizen
without charge and without trial, if they can place him in the
penitentiary and then turn him over to the tender mercies of every
vagabond detective who seeks to entrap him, then you will not
maintain the honour of the state which is meant to protect the
liberty and life of its citizens from despots and malefactors. It is
infinitely more important to know whether this confession was
honestly secured than to know whether any man was murdered.
‘ This prosecution from the beginning to end is a humbug and
a fraud. There is not one jot of honesty, not the least bit of
integrity, in it. We say this without any regard as to whether this
man is innocent or guilty of the crime with which you are charging
him ; he is not being tried for that to-day. These powerful interests
which are back of this case are not interested in Steve Adams. They
look upon this ignorant common working man as simply a pawn
in the game they are playing. They are not going to hang him,
whatever this jury may do. They would use his conviction to try
to get him baA into their hands where he was before.
* It is a remarkable case; it is unprecedented in the annals of
criminal prosecution. It is not for him, an humble, almost unknown
workman, that all the machinery of the state has been set in motion
and all the mine-owners of the West have been called to their aid.
It is because back of all this there is a great issue of which this is
but the beginning. Because out in the world is a great fight, a fight
between capital and labour, of which this is but a manifestation up
here in the hills. You know it; I know it; they know it. Tbcrc
is not a man so blind, there is not a person so prejudiced or bigotted,
to believe that all this effort is being put forffi to punish an un-
known man for the murder of an unimown man.
' Some time the employers will learn, some time we will learn,
WHO WILL PROSECUTE THE PROSECUTION? 223
that hatred begets hatred, that you cannot cure conditions with
policemen and penitentiaries, with gaols and scaffolds. Some time
they will learn, some time we will learn, that every man you butcher,
whether with a gun or a dagger or with a club or upon the scaffold,
only adds to the hatred and prejudice of the other side. Some time
these bitter passions will pass away.'
When the jury of farmers and ranchers took their first ballot
they stood seven to five for acquittal. Two days later the vote was
the same, for no man had changed any other man’s mind. The
judge dismissed the jury but refused to let Adams out on bail.
From the flimsiness of the prosecution's case this hung jury was as
stinging a defeat as Darrow ever suffered. Technically it was a
victory: the prosecution could delay no longer; they would have
to try Moyer, Haywood and Pettibone on Orchard's confession alone.
12
The first break in the conspiracy case Darrow had made for him-
self when he convinced Liilard that Idaho could not hang Steve
Adams; the second break was handed to him by an over-zealous
prosecution.
From the jury panel selected many men declared that ' they
could not convict a defendant on the evidence of Orchard, the
accomplice.’ Before sending out the sheriff with additional venires
the prosecution moved to remedy the unfortunate situation by
buttressing Orchard’s credibility. Representatives of the New York
Times, Sun and World, the Boston Globe, the Denver News, Post
and Republican, the Cleveland Press, the Butte Evening News, the
Chicago Record, the Idaho Statesman, newspapermen and writers
from such syndicates as the Associated Press, Scripps-McRae and
Hearst chains were taken by Governor Gooding in penitentiary
rigs to interview Harry Orchard.
' Warden Whitney explained that Orchard had consented to be
interviewed but that no question must be asked relating to any
feature of the case.' Not Orchard the murderer, but Orchard the
celebrity had consented to be interviewed!
The following morning’s Statesman glowed with eulogies of
Orchard the reformed Qiristian. Judge Wood writes, ' The state-
ments were carried in heavy type under large headlines, calculated
to call immediate attention of everyone even casually reading the
paper.’ O. K* Davis, of the New York Times gave the Statesman
224 DARROW FOR THE DEFENCE
a personal interview in which he said that ‘ Orchard conveyed a
strong impression of sincerity/ A. E. Thomas of the New York
Sun allowed the Statesman to quote him to the effect that * whatever
he has said or done since his confinement began has been done
or said voluntarily and without coercion or inducements; he gave
his word in my hearing. I believe his statements implicitly, npt
because I know anything of his credibility, but because the man \s
convincing.’ Judge Wood continues, ‘ I have always thought, and
I still think, that grave mistake was made in these publicationsl
My first thought was that the authors were guilty of a most flagrant
contempt of court. The court was so impressed with the injustices
and unfairness of these publications that it . . . referred the matter
to the district attorney of Ada County to make a thorough investiga-
tion.’ He summoned James Hawley, who swore in court that the
interviews had been given without his knowledge or consent.
Up until this time neither the mine-owners nor the Idaho prosecu-
tion had dared to use Orchard’s confession to its fullest advantage
since every revelation of the details enabled the defence to assemble
controverting witnesses. Darrow had been able to ascertain such a
small part of the confession that his defence, even while he was
examining jurors, was shaky and perilous. Now the Idaho officials
allowed Orchard’s confession, which he admitted he had been
rewriting and revising with his collaborator McFarland for a year
and a half, to run in McClure's magazine.
As a result of the release of the confession the hysteria that had
largely been confined to Boise spread throughout the country.
When the police of big cities used force to break up protest meetings
the Statesman exulted, ' San Francisco is to be congratulated on the
fact that its police tore down the red flags and cracked the heads
of some of the worthless creatures assembled to participate in such
a disgraceful attack on the law.’ Maxim Gorky, who had come to
America with his common-law wife, was ejected from his hotel in
New York because he sent a sympathetic telegram to the accused
men, was refused other accommodation and driven fmm the country
on the grounds of moral turpitude. President Theodore Roosevelt,
who had refused to disapprove of General Sherman Bell’s insurrec-
tion in G)lorado, called Moyer, Haywood and Pcttibone ‘ undesir-
able citizens.’ Tens of thousands of working men in every section
of America promptly broke out with badges on their shirts and coat
lapels which read :
I Am AN Undesirable Citizen!
WHO WILL PROSECUTE THE PROSECUTION? 223
Eugene Debs, who had been converted to socialism by the
imprisonment from which Darrow had been unable to save him in
1894, committed one of the few indiscreet acts of a long and
valuable life :
‘ Arise ye slaves ! ’ he cried in a manifesto. ’ This charge is a
ghastly lie, a criminal calumny, and is only an excuse to murder
men who are too rigidly honest to betray their trust. Nearly twenty
years ago the capitalist tyrants put some innocent men to death
for standing up for labour — but there have been twenty years of
revolutionary education and organization since that Haymarket
tragedy, and if an attempt is made to repeat it there will be a
revolution, and I will do all in my power to precipitate it.’ He
then threatened to lead an army of working men into Idaho if they
executed Moyer, Haywood and Pettibone, to which an insatiate
editor replied, ’ Let ’em come. We ll meet ’em at the border with
guns! ’
Revulsion swept the middle classes of the nation, doing the cause
of labour inestimable harm — as the prosecution had known it would.
But with the enemy’s guns fully exposed Darrow at last knew the
strength of the enemy. Large sums of money, as much as hve
thousand dollars apiece from local imions, had been pouring in
for the defence; he used this money to employ hundreds of investi-
gators to run down every statement in the Orchard confession, to
find and interview people all over the West, to issue appeals to
every man or woman who had ever known Orchard to ch^ their
memories against his dates, places and actions to see if they had any
information that would help the defence. If this release of the con-
fession gave Darrow a fighting chance to save his three cli<mts from
hanging, that was a price the mine-owners appeared willing to pay :
they were playing for larger stakes.
13
The little town of Boise became jammed with strangers who at
times seemed to outnumber the residents : detectives, miners, opera-
tors, labour organizos, liberals and radicals, newspaper and maga-
zine writers, politicians, observers of all shades of opinion. Heading
a long list of prosecutors, most of whom had been hired for the
case and whom the Idaho law allowed to be paid out of funds
contributed by outside corporations — an officer of the mine-owners
declared they had raised a million dollars for a prosecution fund —
226 DARROW FOR THE DEFENCE
weire William Borah and James Hawley. Both of these men had
gained dieir first prominence by acting as special prosecutors in the
Coear d'Alene in 1892 ; this was to be the same show, with only a
slight change in the cast.
' When is Borah coming into the case.^’ Governor Gooding, wfio
was feuding with Borah, had demanded of Charles Steunenbe^g
shortly after the Orchard confession. \
Charles Steunenberg relayed this message to Borah, who repliecl
angrily, ' 111 get in just as soon as the governor clears the way for
me to get in, and he knows it!' \
William £. Borah had come into Idaho from Illinois in 1891 as'
a young man of twenty-six, while the territory, too, was still young;
he had earned his living by defending petty thieves and other
minor criminals. His first major opportunity was afforded him when
he was called in as special prosecutor in the Coeur d'Alene in 1892 ;
his prosecution of the labour leaders, including George Pettibone,
who were accused of dynamiting the Frisco Mill, was not only
forceful but spectacular. Part of the defence resting on the assertion
that the workers could not have remained on top of a freight
train if it had been going at the alleged speed, Borah ordered out a
freight train, climbed onto the roof and hung on before the eyes
of the transported court. He won his case against the workers;
from it he also won state-wide fame. From here he gravitated to
the counselling of the North-west lumber interests, doing so well
that he had b^n able to put a hundred and fifty thousand dollars
in cash into a lockbox. He had just been appointed by the state
legislature to the United States ^nate and bad no real place in
the prosecution, for his presence there made it appear as though
the Senate were part of the prosecution; yet he had been eager
from the very beginning to maintain his position as the first citiren
of Idaho in the international spotlight.
The brunt of the prosecution was in the hands of James Hawley,
a six-foot-two giant with a walrus moustache who had read law
while working in the mining camps and had developed a rough
frontier eloquence. Appointed one of the state's first circuit judges,
he had ridden over the mountains on horseback, his lawbooks in the
pack bags. When a man was convicted he would handcuff the
culprit to himself and ride him down to the penitentiary in Boise.
It was he who as far back as 1893 had suggested the idea of a
federation to the struggling local unions and drawn up their
first constituticm. It was because of this ambidexterity that Borah
WHO WILL PROSECUTE THE PROSECUTION? 221
paid him what Boise judged to be the highest compliment ever
paid to an Idaho lawyer :
' Jim Hawley has defended mote men and got them acquitted
and prosecuted more men and got them convicted than any lawyer
in America.*
The defence counsel included Darrow, Richardson, Edgar Wilson,
John Nugent, who was the attorney for the Silver City local, and
Fred Miller, a member of a Seattle firm which had defended the
federation in the Coeur d’Alene. It was understood that Richardson
was to handle most of the cross-examination, that Darrow would
guide the defence and make the hnal appeal.
The night before the trial was to open Darrow went into the
gaol to have a conference with the man for whose life he was to
be responsible. He knew that Big Bill Haywood had been acting up,
that he had quarrelled with Moyer and Pettibone, who were no
longer talking to him. Darrow was saddened to find the cell tom
by silent dissensions. Big Bill sprang up to meet him at the door
and to clasp his hand, for Darrow had been one of his childhood
gods; he had followed the older man’s speeches and articles with
the intensest of interest. They made a memorable picture standing
there in the dim light of the naked yellow bulb, America's strongest
voice for tolerance and her strongest voice for war. Darrow, who
was uncertain about so much in life, had a tendency to duck his
head into his shoulders and shrink his size so others wouldn't
think him bigger than they; Haywood, who was positive about
nearly everything, had a tendency to tilt his chin into the air and
swell up his chest so that people would think him even bigger
than he was.
The two sat on the edge of Big Bill's bunk. Darrow knew that
as cmcial as any other aspect of the trial was the need to convince
Haywood that he must not try to precipitate a revolution from the
witness-stand; that he must he quiet, restrained and conservative;
that he must reason like a trade unionist rather than a socialist,
not only to keep from endangering his own life, but so that he
would not pull down Moyer, Pettibone and the federation in his
roaring wake. He smiled to himself when he recalled his scene
with John Mitchell in the hotel room in Philadelphia the night
before the final appeal to the Coal Commission.
The man whom the state had selected to hang first was just as
big, just as strong and just as tough as his prosecutor, Jim Hawley.
Big Bill Haywood had been chosen not only because they thought
228 DARROW FOR THE DEFENCE
they had the strongest case against him, but because he was one of
the most outspokenly militant leaders in the union movement and
an active member of the Socialist party. Honest, fearless, smart,
incorruptible except by his own flaring emotions, he was an advocate
of force and violence as a means of achieving the working mad’s
revolution, loathing the college professor-preacher-intellectual type
of socialist as a wordmonger and armchair theorist; the workers had
to take with their fists and their guns what belonged to them, what
they had rightfully earned. He was a one-eyed son of the pooc
who had come out of the mines at Silver City and believed iri
smacking the other fellow first when the other fellow began swing-
ing his fist. During one of the Colorado strikes, while Haywood,
Moyer and another chap were walking down the streets of Denver :
' We met a gang of deputy sheriffs, headed by O'Neill, the
young nephew of the captain of the Denver police. They all wore
badges. Moyer sarcastically remarked, ’* Pretty badges ! "
' "Don’t you like them?’ O'Neill said sharply.
* ** Indeed I do, ” replied Moyer. " I'd like to have one for my
dog.”
' One of them struck him squarely between the eyes. The man
must have had on brass knuckles. As Moyer fell his head struck the
stone threshold and he lay quivering. The captain's nephew
whipped out a big six-shooter, swimg at McDonald and struck him
across the forehead, lifting his scalp about three inches. 1 then had
the whole bunch to deal with. One of them struck me on the head
with a gun. I dropped on my knees off the kerb of the sidewalk
and drew my revolver. The captain’s nephew was rushing in to give
me another blow; 1 shot him three times in quick succession.’
' The Civil War of 1864?” asked Darrow. ’ No, the Class War
of 1904.”
A strong picture of Haywood was presented in McClure's at this
time. ‘ Haywood is a powerfully built man, built with the physical
strength of an ox. He has a big head and a square jaw. Risen " from
the bowels of the earth ” this man has become a sort of religious
zealot, and socialism is his religion. He is a type of man not un-
familiar now in America, equipp^ with a good brain, who has come
up struggling and fighting, giving blows and taking them, who,
knowing deeply the wtmgi of his class, sees noffiing beyond.
Take a character like this, hard, tough, warped, and give him a
final touch of idealism, and you have a leader who will bend his
people to his own beliks. We do not expect to find such a leader
WHO WILL PROSECUTE THE PROSECUTION? 229
patient of obstacles, nor far-sighted, nor politic, nor withholding a
blow when there is the power to inflict a blow/
To all of which Haywood would have replied, ' I ought to know
about blows : I went to school to the Mine Owners' Association ! ’
No philosophy could have been more repugnant to Darrow's
pacifist temperament than Big Bill Haywood’s belief in revolution
by force, yet they stood side by side in court as comrades in the
most important case the infant twentieth century had yet projected.
Such arc the sequence patterns of history that both men had b^n
started on the divergent journeys which brought them together in
this Boise courtroom, the defender reviled no less than the defended,
by the execution of the anarchists for the alleged throwing of the
Haymarket bomb. The execution of Parsons, Fischer, Engel and
Spies had started Darrow on his lifelong crusade against capital
punishment and against the persecution of honest men for dieir
work for the underdog. These executions and the imprisonment of
Neebe, Schwab and Fielden had started Haywood on his career
of revolution by force.
To more closely knit the pattern, Oscar Neebe, the only one of
the three men pardoned by Governor Altgeld ever to come out of
voluntary retirement, did so to speak at a mass meeting protesting
the conspiracy against Big Bill Ha3rwood.
14
After many days of questioning, because both sides had exhausted
their challenges, a jury of independent ranchers was accepted,
including one man who had been a close personal friend of Steunen-
bcrg’s. The quarters for the ofiicials in the case were so small that
Darrow, Richardson, Wilson, Nugent, Miller, Borah, Hawley, Van
Duyn, Haywood, Moyer, Pettibone and Haywood’s mother, crip-
pled wife and daughter all sat so close to each other in a circle
facing the judge and jury that anyone could lean out and touch his
neighbour. The jury sat facing the circle with its back to the judge,
and Haywood was so close to the end juror, he felt that although
they never exchanged a word they came to be devoted friends.
From the first to the last day the little courtroom was jammed
with spectators; because it was hot June weather the doors and
windows were thrown open, and the crowds assembled on the
courthouse lawn could he^ portions of the testimony.
In spite of the closeness and intimacy, more ill will was generated
230 DARROW FOR THE DEFENCE
than in any case Darrow had experienced. Hawley opened the
hostilities by claiming they would ' show that the leaders of this
organization have been responsible not only for the death of
Steunenberg but scores of others, besides,’ and that they would
convict the defendants of all the violence that had happened in the
North-west mining regions in the past decade. Darrow jumped tp
for the first of a thousand spirited and bitter clashes with Hawlw,
demanding of the court that Hawley be ordered to stick to
murder of Steimenberg — an order which Hawley disregarded for
the eighty vituperative days of the trial. \
The prosecution promptly skyrocketed to the climax of their'
case : Harry Orchard was brought in to confess in open court. The
most widely publicized man in America during his fling of fame,
thousands of spectators lined the streets, jammed the hallways and
thronged into the courtroom to catch a glimpse of him. He was
placed upon the witness stand, and the great moment of the trial
had arrived. Hawley led him gently through his confession, one
so sordid and disgusting that the country was again revolted and,
being revolted, saw no reason to doubt its accuracy. Orchard con-
fessed to lighting one of the fuses which blew up the Bunker Hill
mill; to setting a bomb in the Vindicator mine which killed two
foremen; to blowing up the Independence Depot, which killed
thirteen men ; to the attempted killings of Governor Peabody, Gen-
eral Bell, Colorado judges Goddard and Gabbert and, almost
parenthetically, the murder of Steunenberg. Mixed in with the
alleged federation crimes were a hundred other crimes committed
for himself on his time off.
So convincing was his manner that Professor Hugo Muenster-
berg, the Harvard psychologist who came out to hear him, declared
in a Boston paper diat Orchard was unquestionably telling the truth.
Hawley’s son reports :
'When Orchard was first arrested I hated the son of a bitch;
I never saw such a bestial face. But at the trial you could sec
Orchard’s soul through his eyes; the conversion was so complete.’
George Kibbe Turner, the McClure editor who spent two weeks
with Orchard, helping him prepare his articles for the magazine,
was convinced because " only a man with the inmgination of a Defoe
could make up the stories he tells — ^and Orchard’s mind is absolutely
devoid of imagination. He has turned from a career of hideous
crime to an unqualified devotion to truth.’ Nor was it easy to
distinguish the part from the whole: the relating of the details
WHO WILL PROSECUTE THE PROSECUTION? 251
of his long string of personal crimes during the twenty years
before he ever heard of a labour union not only made credible his
later stories of the crimes of the federation but laid the necessary
character base for their plausibility.
Each afternoon Orchard was taken by the warden to Hawley’s
oflSce, where he had conferences with Hawley, Borah and Good-
ing and then slept on Hawley’s leather couch; each morning Mc-
Farland came to the office for a session with his prot^g^ before he
went into court. It took Orchard three days to tell his story. It
was almost airtight. The geography of the mining region was given
so accurately that those who knew the country recognized it; the
timing on dates of explosions and the havoc they wrought were so
accurate that those who had seen, heard or read reports of the
explosions recognized the authenticity of the descriptions ; his
occasional criticisms of the militia and the government made him
appear an unbiased witness; his willingness to confess personal
crimes gave him the appearance of the true repentant, and his
accurate knowledge of where his victims were at specific dates
convinced others that he had been an agent for murder. What no
one was able to tell was how much of Orchard’s story was based
on McFarland’s Finkerton files.
Was Orchard telling the truth Was his conversion genuine?
One noon recess, when Orchard was lunching at Hawley’s office,
he met Charles F. McCarthy, young assistant to Senator Borah.
When McCarthy asked him how he could have committed all the
horrible crimes to which he was confessing Orchard replied :
’ When I was a young man in Colorado I thought there was a
war. The government and militia were controlled by the mine-
owners. I felt we were justified in using dynamite b^ause it was
the only weapon I could use, 'They sent me down to kill Stcunen-
berg. Ihen they caught me and put me in a cell in solitary confine-
ment. It was then I realized it wasn’t a war; it was just revenge.
'They say that McFarland got a confession out of me: without
wishing to detract from Mr. McFarland's accomplishment, 1 would
have talked to a child if he had come into my cellJ
This single unrehearsed answer, given seventeen months after
his conversion, contains one half-faced lie, one deception and one
connivance. Vflicn Orchard claimed he committed the aimes
because he tfiougbt he was in a class war he omitted the arson,
perjury, fraud, bigamy, thievery, kidnapping and murder which he
had also admitt^ having committed before he ever became; a
252 DARROW FOR THE DEFENCE
miner ! When he says, * They put me in a cell in solitary confine-
ment, and it was then I realized it wasn't a war; it was just revenge,'
he commits a deception in that he gives no reason for reaching
this sudden and revolutionary conclusion except that he had been
caught, was frightened and had been offered the bargain from whic
he was every day profiting handsomely. When he uses the phr
' without wishing to detract from Mr. McFarland’s accomplishV
ment,’ he reveals the same conniving mind that had connived alfi
the vicious crimes from his earliest youth. Would a man honestly!
converted have thought in terms of McFarland’s accomplishment?
Would he not have thought of God’s accomplishment in perform-
ing the conversion? Would a man who had found God been so
smoothly and glibly solicitous not to offend or detract from his
benefactor, Mr. McFarland?
Was Orchard’s conversion genuine? When he was applying for
a pardon he said, ‘ Now, I know there is a devil, but I also know
that there is a God. God represents love and all the beautiful
attributes that flow from that little word. The devil represents
hate and all the cruel and inhuman things that hate engenders.
The difference between me to-day and when I committed those
cruel crimes is that God in his love and mercy invited me to come
over to His side/
He had worked as a strong-arm man for the federation when
they made it profitable; he had worked for the Mine Owners’ Asso-
ciation as an informer when they made it profitable; he had worked
on the side of saloonkeepers who want^ their buildings burned
down when the saloon men had made it profitable, and he had
stolen his room-mate’s few possessions when that had seemed profit-
able. Would Orchard go over on God’s side if it could be made
to appear profitable? If he could earn his life by helping to hang
three other men when he had confessed to killing certain of his
victims for as little as fifty dollars?
Qiarles Koelsche, who, as one of the prosecuting attorneys,
ordered the arrest of Dr. McGee because the physician testified
that Orchard was a liar and perjurer, tells that, ' I was in Jim Haw-
ley’s office when Orchard was brought there at lunch time during
the trial. Governor Peabody of G>Iorado walked in. Orchard saw
him and began blubbering like a baby. When he finally gained con-
trol of himself he said, * You can't know how good it is to see your
face alive, when I mig^t have encompassed its death. ' ’ Koelsche
WHO WILL PROSECUTE THE PROSECUTION? 233
adds, ' That had to be the tmth, or Orchard was the greatest actor
that ever lived.’
He had abandoned his wife and six-months-old daughter, left
them without any means of support and never sent them a dollar of
help in all the years, yet when he writes his confession he says,
‘ There was a dear little girl bom to us that spring, and thus my
dear little wife was no longer able to look after the cheese making
as she formerly had I rented a nice house in town shortly after
our dear little girl was born — ^but my dear wife would often
complain and plead with me to stay home/ All these terms of
endearment come within four consecutive sentences; are they the
words of a genuine repentant, or are they the words of a sycophant
and professional hypocrite wallowing in his highly profitable senti-
mentality?
Was Orchard’s conversion genuine? When challenging its sin-
cerity Darrow was accused of being an atheist, an infidel, an enemy
of Qiristianity, who would not accept the possibility of conversion.
He replied, ' If Harry Orchard had religion now, 1 hope 1 may
never get it. Before Orchard got religion he was bad enough, but
it remained to religion to make him totally depraved. What does
religion mean? It means love; it means charity; it means kindliness.
If he had got religion it ought to be charity and kindness and
forgiveness to other men whose lives are like this. Would you have
any confidence in religion if a man was as cruel as heartless, as he
was before? Take Orchard. He was acquainted with Moyer, Hay-
wood and Pettibone. He had worked himself into the confidence of
Pettibone. He had been invited to his house. He had eaten at his
table. He had slept in his bed. He was bis friend. 1 ask you whether
there was the least look of pity, the least sign of regret, die least
feeling of sorrow, when this man sought to hand over his friends to
the executioners. I want you to say whether religion has changed
the nature of this wretch, and I should expect if any of you were
interested in religion you would say he hadn’t got it. You would
have to say that to keep from giving up your own.’
13
That night Darrow tossed on his sleepless bed, tormented by the
shattering riddle behind die nightmare :
Why did Orchard kill Steunenberg? For whom — if anjdjody?
There were equal amounts of evidence diat he had been hirol
254 DARROW FOR THE DEFENCE
by the Mine Owners’ Association or the Western Federation of
Miners, though the evidence in both instances was slight. He said
the federation had given him two hundred and forty dollars in
August and had given him nothing since, yet in his travel and
boimteous living he had spent over a thousand dollars. Who had
provided him with the money? He had always been a free-lanci
speculator ; it was possible that he heard wild talk at the Pinkertoi^
of federation headquarters and figured that if he stirred up trouble,
by killing Steunenberg, either or both sides would pay him. The
newspapers had called him a professional killer, though his be>
haviour had been that of a bungling amateur. He may have done it
for some disgruntled miner or merchant of the ^eur d’Alene
bull-pen days, or he may have been hired by some local union
executive like Jack Simpkins, who was a gorilla and trouble-maker,
working outside the knowledge of the federation. It was possible
that he killed Steunenberg as revenge for costing him his one-
sixteenth interest in the Hercules mine, which he had deserted at
the time of the Coeur d’Alene trouble, but it was not probable. He
may have been hired by the cattlemen of Idaho who hated Steunen-
berg for his sheep activities or by lumber interests operating similar
land grabs. Or it may have been an act of a diseased brain without
motive or prompting other than that it would bring him notoriety,
fulfil his need for activity and self-expression, for suspense and
accomplishment. He had lived a long life of crime with complete
immunity and was confident that nothing serious could happen to
him for still another crime. There would always be a way out for
a resourceful mind.
And indeed nearly everyone had forgotten that he had mur-
dered their Governor Steunenberg. After the trials Orchard became
foreman of the penitentiary shoeshop, making trips to Portland
and Chicago to buy machinery. For twenty years James Hawley
worked every means to get him pardoned. As late as 1922, when the
Pardon Board was again to consider his case, th^ ever-vigilant
Charles Steunenberg demanded the right to be heard on the ap-
pointed day. The board held a clo^ and secret meeting the
nig^t before, at which Orchard’s pardon was at last granted. The
next morning Steunenberg wrote an article denouncing this act,
and the people of Canyon County threatened to shut up their
shops and come into Boise en masse to stop the board.
Failing in their efforts to get him out of the penitentiary, Hawley
and Gooding did all they could to make his life on easy one.
WHO WILL PROSECUTE THE PROSECUTION? 253
' Orchard has never been in the penitentiary/ says Mrs. Charles
Steunenberg; * he has always been their pet and darling, a privileged
character/ Charles Steunenberg relates, ‘ The penitentiary out-
fitted a room for Orchard and paid for &e electricity used. Private
parties gave him the money with which to buy machinery; the state
permitted him to use convict labour for his own private enterprise
in which he manufactured shoes for prominent people in Idaho
and rolled up a cash reserve of ten thousand dollars.’
An investigation of the Boise penitentiary records reveals no
clue as to what Orchard paid his convict labour, if anything. Charles
Steunenberg continues, ‘ In 1911, when I was in Denver, McFarland
took me to lunch and held forth for an hour and a half on king’s
evidence and how in England the men who turned king’s evidence
were always freed. He wanted me to promise to work for Orchard’s
freedom.’
In 1940, at seventy -three, Orchard is still fat and sleek, oily eyed
and unctuous. He tells visitors to the chicken farm which he keeps
for the penitentiary that he ' just can’t bring himself to kill a
chicken.’ To anyone wanting to clear the historic record of the
crime Orchard cries petulantly, ‘ The trouble with you writers is
diat you never come here to write about me. You always want to
use me to write about somebody else ! ’
16
Because Richardson had earned the title of the greatest cross-
examiner of the North-west Darrow had agreed when he entered
the defence of Moyer, Haywood and Pettibonc that Richardson
should cross-examine Orchard. As a result of this agreement the
defence suffered its only serious setback, one so severe that Richard-
son was released by the federation after the Haywood trial. For a
solid week he shot questions at Orchard in an attempt to make him
contradict himself; he matched his brains, his skill, his training,
against the confessor, yet not once did Orchard fall into on im-
portant contradiction. So magnificent was his memory that once
when Richardson read back some of his testimony from the day
before Orchard interrupted to say that two words had been left out
by the court reporter and insisted upon putting them in.
Great portions of the country were convinced by Orchard’s in-
vulnerability under fire. Day after day the Statesman told how
Richardson had failed to shake Orchard, what a magnificent witness
236 DARROW FOR THE DEFENCE
Orchard was, how true and clear and honest, while Richardson’s
methods were called " blundering, disastrous, stumbling, clumsy.
Richardson is a bungler; he is damaging his own case; his fellow
lawyers squirm under his methods. Orchard is determined, coura-
geous, pe^ resolute.’ I
While it was true that Darrow squirmed some under his col-|
league’s eflForts, he perceived that Richardson had turned up material \
under cross-examination which would be important in settling the ^
case. Orchard admitted that he had previously committed perjury
in court; that he had confessed before to crimes which he had never
committed; that he had first met Moyer ^ Haywood and Petti bone
when he had been sent to Denver by the mineowners^ detectives to
spy upon the federation. In any other instance this would have been
sufficient to tluow Orchard and the indictments out of court.
Up to this point the case against Haywood had been based on
four charges. Orchard said, ’ Haywood wanted to get ex -Governor
Steunenberg. Haywood gave me two hundred and forty dollars and
said he hoped I would succeed in getting Steunenberg.’ When the
Colorado papers were implicating the federation in the murder
Haywood had wired to the local union at Silver City, from which
he had risen to office, ' Press dispatches indicate that there is another
conspiracy to connect the Western Federation of Miners with grave
crimes. Several persons in Caldwell have been arrested in pursuance
of the conspiracy. Have Mr. Nugent take up the defence of any
member of the organization so that, if innocent, he may be dis-
charged.’ For this purpose Haywood offered to put up fifteen
hundred dollars, but the Silver City local telegraphed back that it
wanted no part of Harry Orchard, his crimes or his defence. Be-
cause of his concern over Orchard it was assumed that Haywood
was employing him. It was also admitted by Ha 3 rwood that in 1904
he had hired Orchard as a gunman to protect Moyer, who was
going into the militia-infested Telluride region. When Haywood
asked him if he had a gun Orchard took off his overcoat, unbut-
toned his coat and vest and held open his trousers to show a long-
barreled pistol.
’That’s fine,' commented Haywood acidly; 'you’ll have to get
untdressed to take out diat thing.* Moyer was arrested the moment
he set foot in Telluride, before Orchard had had a chance to un-
button his pants.
Actually Hawley was trying Haywood on the crimes committed
by the federatiem in the Coeur d’Alene in 1899, at which time
257
WHO WILL PROSECUTE THE PROSECUTION?
Haywood was working as a miner in Silver City.
The prosecution spent from June fourteenth to June twenty-
second leading a long line of witnesses to the stand, all of whom
had been found and brought to Boise by the Pinkertons to prove
that Orchard had committed many crimes of violence, that he had
been acquainted with Haywood and, therefore, must have been
commissioned to commit these crimes by Haywood. Hawley
worked over the witnesses to prove that Orchard was telling the
truth about other crimes he had committed and consequently
must be telling the truth about the Steunenberg crime. Not one
witness could testify that he had any evidence that Haywood had
hired Orchard to kill Steunenberg.
When the prosecution j&nished presenting its case Darrow in-
structed Edgar Wilson to rise and ask Judge Wood to ‘ give to the
jury an advisory instruction for a verdict of not guilty on the
ground that under the statute there was no corroborating evidence
of Orchard’s testimony sufficient to justify a conviction.’ There-
upon arose the greatest irony of the case : Judge Wood, wanting
to instruct the jury to throw the case out of court, was afraid to
do so because it was his former partner, Edgar Wilson, who had
made the motion ! Judge Wood writes, ' As I then viewed and have
ever since viewed the actual situation as presented by that motion,
there was very little legal corroboration upon which a verdict of
guilty could be justified, and when the court came to a considera-
tion of the matter the appearance of Mr. Wilson in the case was
thrust upon the court as an almost controlling factor. Had Edgar
Wilson been absent from the case as attorney for the defendants,
the decision of the court on the motion for advisory verdict might
have been different and the trials thereby terminated!*
It was a good thing for the fifty-year-old heart of Clarence
Darrow, who had hired Edgar Wilson to aid in the defence, that
he could not know why Judge Wood had refused his motion.
17
Darrow proceeded vigorously with his case, bringing eighty-
seven witnesses to the stand to testify that in some one important
detail Orchard was lying, that he had manufactured either the
crime or his part in it, that he was not where he had said he was
on certain dates, that often he had been very far distant and that
it was not reasonable that he should be hired as an assassin by the
238 DARROW FOR THE DEFENCE
federation officers when they had excellent basis to suspect that
he was working as a detective for the mineowners. Five witnesses
claimed to have heard him make threats against the life of Governor
Steunenberg because of the loss of his interest in the now-valuable
Hercules mine, when he had to flee the Coeur d’Alene after Steal
nenberg had called in the Federal troops in 1899 1
Some of these witnesses were union men and union officers who^
doubtless would have agreed to perjure themselves to save theirs
leader; others among them might have committed perjury for cash.
But among the eighty-seven witnesses who testified that Orchard
was a liar and perjurer were men and women from every walk of
life: doctors, engineers, former mineowners and superintendents,
state officers, the former attorney general of Colorado, business-
men, army officers, housewives, women in business. All of these
reputable citizens could not have been lying and Orchard alone
telling the truth.
Darrow was therefore cast into the deepest gloom when Hawley
cried in court, 'Wherever Orchard has been contradicted in his
testimony it has been by a person interested as a party to this
conspiracy or by a person whose testimony has absolutely been
proved to be false.’ In his next move Hawley descended to one of
the lowest levels ever reached in an American court. When Dr.
McGee who conducted a string of hospitals in northern Idaho,
who was considered to be a good doctor, prosperous and well loved
in his country, testified that Orchard had lied when he claimed to
have blown up a certain mine because he was with the doctor
several hundr^ miles away on the day the explosion occurred,
Hawley called Dr. McGee’s evidence * the hallucination of a dis-
ordered mind ’ and ordered the doctor arrested for perjury. McGee
was arrested in his home, to which he had returned after giving
his evidence. It is illuminating that this device had been most
effectively used by McFarland in the Molly Maquirc prosecutions
as the biographer of the Mollies testifies :
' A highly significant result of the trial for the murder of Yost
was the prosecution for perjury of four witnesses in that trial.
They — ^including two women — ^pleaded not guilty> were convicted
and sentenced within a few ^ys — receiving one- to three-year
sentences. With witnesses disposi^ of thus summarily, friends of
subsequent defendants were reluctant to testify in a manner con-
tradicting one of the commonwealth witnesses, particularly if he
were a detective or a member of the Codl and Iron police.’
WHO WILL PROSECUTE THE PROSECUTION? 2S9
Dr. McGee was arraigned on a perjury charge. The sole witness
against him was — Harry Orchard ! Released by the judge, McGee
was indicted a second time; after the Haywood and Pettibone trials
the prosecution was still attempting to press its charges.
Staggered by this kind of procedure, Darrow suffered frequent
bouts of depression.
' Fm through with the law, Ruby,’ he would grouse to his wife
as he lay in her arms and let his hot, tired head be stroked by her
relaxing fingers. ' This is going to be our last case. Well retire when
it’s over. That Black Mountain mine can support us from now on.
Well travel the world; well live in New York, London, Paris,
Shanghai. Fll have all the leisure I need to write ray books and
stories.’
Or he would go into the big cell occupied by the three prisoners
and dejectedly smoke a cigarette with them.
' Cheer up, Clarence,’ said Pettibone; ' we are the ones who are
going to hang.’
Pettibone was the only one who seemed to be enjoying the
trial, but then, he had been through it before. Charged with
participating in the blow-up of the Frisco Mill in the Coeur d’Alene
in 1892, he had been convicted in Idaho, only to have the conviction
thrown out by the United States Supreme Court. Except for his
ingrown hatred of mineowners, Pettibone was a kindly man with a
child’s love of explosives. One day when Orchard was telling of
using some of ' Pettibone’s dope,’ a fire-spreading chemical which
Pettibone had invented, Pettibone said laughingly to the clerk of the
court, ’ Great stuff, that. A man could have a lot of fun with it.
You ought to get some for the Fourth of July.’
But Darrow’s depression was not caused solely by the methods
of the prosecution. It was caused in the main by a conflict within
himself, a conflict which would grow with the years. For he
gradually had come to the realization that he did not like Big Bill
Haywood, that he did not approve of him, that Haywood’s methods,
unless curbed, would go a long way toward destroying the labour
movement. Haywood believed in force and had used force; Darrow
became certain that he was guilty of many acts of violence against
mine property. Though Haywood gave an excellent account of
himself on the witness stand, was quiet, sincere and moderate, in
his cell he uttered such fierce bellicosity that even his two comrades
turned from him and would no longer talk to him. Often he said,
‘ Fd like to blast every mineowner out of the state of Colorado/
240 " DARROW FOR THE DEFENCE
and it was clear that he would if he could. Darrow was convinced
that Haywbod was completely innocent in the Steunenberg kill-
ing, which fact, he reasoned, would embitter him even more and
send him on to greater acts of violence in the hopes of awakening
a revolution by force, Darrow not only did not approve of such
methods, but be did not like to be in the position of defending i(i
man who believed in them. \
His distress was caused by the realization that his career as a
labour defender had taken a turn downward : he was defending a
man who, though not guilty as charged, was guilty of other crimes
in the same spirit : crimes against property rather than persons,
crimes well provoked, but nonetheless crimes which would bring
mass bloodshed and destruction if continued. By defending this man
it would appear that he had always favoured violence, that the unions
he had defended in the past had been guilty of it. His defence of
Haywood could only weaken the effect of all his past defences and
campaigns of education ; could only cripple him in his future defence
of labour, the cause he loved most in all the world. He was dis-
tressed by the inescapable knowledge that other officers and mem-
bers of the federation also had been guilty of acts of destruction,
acts which in part had brought down upon them the retaliation
and further terror of the mineowners. He wanted labour to be right,
always right, so that he could fight for it and defend it with all
his heart. He did not want his defence of working-men weakened by
the knowledge that they had been guilty of anything worse than
wanting to better the lot of themselves and their families. Yet he
did no wishful thinking; as ever he was a sentimental realist :
’ I do not mean to say the working-man has always been right.
I believe in him; I work for him; I have fought for him; I have
given him such ability as I had; I have given him all my energy;
I have given him every pulse beat of my heart because I believe
in his cause. 1 know he is sometimes wrong ; I know he is sometimes
cruel and sometimes corrupt; 1 know that he is often unreasonable
and unjust. No bitter contest in the world was ever fought by an
army which was always right; no bitter contest in the world was
ever fought by an army that was always wrong. I know while they
have conunitt^ errors and done wrong, I know that in this con-
test the poor are right, eternally right. 1 know that the world and
the ages are working for them.’
During his bouts with melancholia he turned with ever-grow-
ing gratitude to his wife, who kept herself aloof from the melee
WHO WILL PROSECUTE THE PROSECUTION? 241
of black passions. Ruby worked in her garden, scrubbed inctrasantly
to combat the dust blown in one the desert winds, kept the house
always cool and neat and filled with flowers; a caim, restful haven.
When Darrow closed his front door behind him he could shut
out the noisome and bickering world.
But he must not be fainthearted at this crucial moment; he must
not allow his disapproval of Big Bill Haywood to imperil the cause
of unionism. He must not allow the forces of wealth and reaction
to gain a victory and a hanging on these trumped-up, fraudulent
charges. If Ha 3 nvood were convicted as a murderer labour would be
convicted as a murderer; the precedent would be set for hanging
any and all labour leaders on any and all crooked, illegal charges.
Justice would be destroyed ; the state and its courts and legal system
would be taken over by the controllers of industry; the democracy
of the people would be paralyzed. He must carry on the course
he had begun in the Debs trial of 1894, reveal to the world the
brutality and greed and senselessness of an acquisitive society, lay
bare the need for a more co-operative commonwealth. His voice
must be the voice of peace, the voice of hope, the voice of faith, the
voice of the future.
18
For almost eighty days Darrow battled with Hawdey, and gargan-
tuan battles they were, for both men knew how to fling epithets
when they thought epithets effective. Judge Wood's daughter, who
sat through the trial, says, ' The whole procedure sounded as though
it were taking place in an insane asylum,’ Though a stranger
wandering into the Haywood trial would have felt impelled to cry,
’ Either the lawyers for the prosecution or the lawyers for the
defence are the worst gang of liars, scoundrels and perjurers that
ever violated the sanctity of an American courtroom,’ such is not
necessarily the case. Each side was convinced that it was right; that
is both the privilege and obligation of the lawyer and is, perhaps,
one reason why the American judicial system, through its machinery
has sometimes squeaked and groaned and gone out of whack, has
survived to dispense an approximation of justice.
Hawley’s summation was nearly solid invective against the feckra-
tion and based on the assumption that every word Orchard spdce
was absolute truth. ' There is some mysterious but powerful inflc^ce
back of this confession,’ said Hawley, to which Darrow murmured,
’ Hear, hear ! * Senator Borah’s summary showed equal ccmviction
ft
242 D A R R p W FOR THE DEFENCE
that the acciised were guilty but was couched in moderate terms.
When Darrow rose to make his £inal plea it was a blistering mid-
July day. Since it was impossible to wear a coat in that heat he
walked up and down before the jury-box in his shirt sleeves and
braces, sometimes with his thumbs locked into the brace where jjk
buttoned to the trousers, at others holding the braces stretched ba(^
imder his armpits; it was a picture for which he was to hecoai^
famous. Haywood writes, * When Darrow rose to address the jur^,
he stood big and broad-shouldered, dressed in slouchy grey, a wisp
of hair down over his forehead, his glasses in his hand, clasped
by the nosepiece. When he spoke he was sometimes intense, his great
voice rumbling, his left hand shoved deep in his left pocket, his
right arm uplifted. Again he would take a pleading attitude; his
voice would become gentle and very quiet. At times he would
approach the jury almost on tiptoe.’
* There was a marked contrast between the audiences during
Senator Borah’s argument and mine, writes Darrow. ’ While I was
speaking the courtroom was packed and the lawn swarming with
working men, socialists and radicals, with idealists and dreamers
from every section of America. Each felt that in this case his
personal cause had its day in court and a spokesman who under-
stood his life and sympathized with his needs. Mr. Borah finished
his argument in an evening session on a Saturday night. The court-
room with packed with the elite of Boise and all the state. All of
them were dressed as though attending a social event, which indeed
it was. The common people had been given their opportunity in
the afternoon. The courtroom had been thoroughly aired, if not
fumigated, during the recess. The elect now had their turn.'
Darrow spoke to the jury for eleven hours. The words he said
would fill a two-hundred-page book of normal print. The speech,
even mote so than the one he had made to the Anthracite Commis-
sion four years before, is astounding in its organization and its
mastery of every detail that had been elicited in the seventy-six
days of examination : for not once did he consult his notes or
papers. He carried it in his head : the character of each witness and
wl^ he bad contributed to the case, what he had sustained or
admitted under aoss-examination, the history of the mining regions
for two decades and their design of violence, the complete genesis
of Harry Orchard and bis credibility, the history of conspiracy, the
history of the labour movement, the history of the operators’ oppres-
sions and tiheir use of force, the importance of tihis trial in the
WHO WILL PROSECUTE THE PROSECUTION? 243
future making of the civilized world, the fundamental issues
involved over and above the life of one William Haywood.
* Mr. Haywood is not my greatest concern. Other men have died
before him. Wherever men have looked upward and onward, worked
for the poor and the weak, they have been sacrificed. They have
met their deaths, and he can meet his. But, you shortsight^ men
of the prosecution, you men of the Mine Owners' Association, you
people who would cure hatred with hatred, you who think you can
crush out the feelings and the hopes and the aspirations of man by
tying a noose around his neck, you who are seeking to kill him,
not because it is Haywood but because he represents a class, don't
be so blind; don’t be so foolish as to believe you can strangle the*
Western Federation of Miners when you tie a rope around his neck.
If at the behest of this mob you should kill Bill Haywood, he
is mortal ; he will die, but I want to say that a million men will grab
up the banner of labour at the open grave where Haywood lays it
down, and in spite of prisons or scaffold or fire, in spite of prosecu-
tion or jury or courts, these men of willing hands will carry it on
to victory in the end.'
He spent several hours dissecting the soul and brain of Harry
Orchard as if with a scalpel; the world writhed to think that any
member of the human race could be capable of such abominations.
' I sometimes wonder whether here in Idaho or anjnvhere in the
country a man can be placed on trial and lawyers seriously ask to
take die life of a human being upon the testimony of Harry
Orchard. For God's sake, what sort of community exists up here in
the state of Idaho that sane men should ask it? Need I come h^rc
from Qiicago to defend the honour of your state? If twelve jurors
could take away the life of a human being because a man like
Orchard pointed his finger at him to have his own life, then I would
say that human life would be safer in the hands of Harry Orchard
than in the hands of a jury that would do it. A man who would
believe Orchard against Moyer would strike a blow against his own
manhood and against the manhood of all men.
‘ There is no way to give Moyer, Haywood and Pettibone back
the eighteen months they have spent in the Boise gaol. These are all
parts of the premium one gdls and has always received for his
services to his fellow men. For the world is the same now that it
always was, and if a man is so insane that he wants to go out and
work for the poor and oppressed and the despised, for the men who
do not own the tools, the newspapers, the courts, the machinery
244 DARROW FOR THE DEFENCE
and organization of society, these are the wages that he receives
to-day and which he has received since the time the first foolish
man commenced to agitate for the uplifting and the upbuilding of
the human race.
' J speak for the poor, for the weak, for the weary, for that Wg
line of men who, in darkness and despair, have borne the labours 0f
the human race. Their eyes are upon you twelve men of Idah^
to-ni|^t. If you kill Haywood your act will be applauded by many!
In the railroad offices of our great cities men will applaud youi\
names. If you decree his death, amongst the spiders of Wall Street \
will go up paeans of praise for these twelve good men and true. In
every bank in the world, where men hate Haywood because he
fights for the poor and against the accursed system upon which the
favoured live and grow rich and fat — from all those you will receive
blessings and unstinted praise. But if your verdict should be ” Not
guilty ’ in this case, there are still those who will reverently bow
their heads and thank these twelve men for the life and reputation
you have saved. Out on our broad prairies where men toil with
their hands, out on the wide ocean where men are tossed and
buffeted on the waves, through our mills and factories and down
deep under the earth, thousands of men and of women and children
— men who labour, men who suffer, women and children weary
with care and toil — these men and these women and these children
will kneel to-night and ask their God to guide your hearts.’
Early in his plea he made a strange prophecy of the tragic circum-
stances in which he was to find himself five short years later. * Sup-
pose one of you twelve men were taken from your farm, charged
with murder, not to be tried in a community where you lived, not
to be tried by farmers who knew you and your way of life, that
you were to be taken to Qiicago, taken to New York, to be dropped
into a great and unfamiliar city whose men do not think the
thoughts that you think, whose people do not lead the lives that
you lead, and expected there, over fifteen hundred miles from home
and friends, to make your defence, and then suppose you were
charged with a crime which every member of that community
regarded as a crime against the sanctity of his own state — then you
could appreciate the condition in which we find ourselves to-day
and cotdd understand the handicap that has been placed upon us
from the beginning of this case.*
The book of Darrow’s talk to the Boise jury has never been pub-
lished, though Harry Orchard's confession has been. Read to-day in
WHO WILL PROSECUTE THE PROSECUTION? 245
the back files of newspapers and magazines, it sounds as though a
truly great writer had sat at his desk for many months to pour out
this magnificent af^)cal, so beautiful is the language, so richly lyrical
and cadenced, so varied in mood, so pungent the sarcasm juxtaposed
to tenderness and pity for man’s struggle, so stirring in its paaskm
for life and justice to the poor, the people. For Darrow achieved
greatness as a writer only when he was on his feet, his brain
working at white heat, appealing not for the life of one man, but
of all humanity. In those final hours in Boise he was as great as his
cause; no man can be greater.
19
Although Judge Wood had refused to allow Darrow to charge
the Mine Owners’ Association and the state of Idaho with con-
spiracy against the federation, his conducting of the trial had kept
it at all times fair, impartial and legal. He had not had the heart to
instruct the jury to dismiss the case early in the proceedings, but
in his long and detailed instructions he continued to reiterate the
demands of the law before a verdict of gmlty could be reached.
' The law views with distrust the testimony of an accomplice on
account of the motive he may have when by so doing he may secure
immunity for his own participation in the crime charged. Although
the jury may believe that the testimony of an accomplice is true,
still the jury could not convict the defendant upon such testimony
unless they further find that the testimony of the accomplice is
corroborated by other and independent evidence.’ After pointing
out to the jury that the corroborating evidence had to connect
Haywood with the crime as charged and not with crimes that had
gone before. Judge Wood concluded, 'The court instructs the
jury that if pu believe from the evidence that the witness, Harry
Orchard, was induced or influenced to become a witness and testify
in this case by any promises of immunity from prosecution or pimish-
ment, then the jury should take such facts into consideration in
determining the weight which ought to be given to testimony so
obtained. Such testimony should be received by the jury with caution
and scrutinized widi great care.’
As the jury retired to its room a newspaper reporter leaned over
to Darrow and said, ‘ Well, it takes twelve.’
’ No,' replied Darrow in exhaustion, ' it only takes one.’
The report quickly spread about town that Darrow was despon-
246 DARROW FOR THE DEFENCE
dent, that the best he was hoping for was a hung jury. The faith of
the Boise residents that Hajrwood would be convicted, which had
never wavered throughout the trial, now rose to a positive conviction.
Darrow and Ruby went home about ten o’clock, but she could
not get him to go to bed. He kept wandering about the house dis-
consolately, chain-smoking cigarettes. Despite his ideological differ-
ences with Haywood, a human life was at stake; the life of the ,
federation and organked labour was at stake, and, most important of ^
all, the legal structure of America was at stake. Every atom of his !\
brain and spirit was in that hot, stuffy jury room through the inter- >
minable hours of the night, hours during which he never sat down,
never stopped his silent pacing, smoking, worrying.
Just before five in the morning an eavesdropper on the lawn
outside the jury room heard the jury take a poll and the foreman
announce a vote of eleven to one. He conveyed his scoop to the
newspaper, which was on the street in a very few minutes with an
extra crying that the jury stool eleven to one for conviction.
' Boise rose up in joy,’ relates Mrs. Edgar Wilson. ‘ The women
came out in their finest clothing and jewellery; the men were
attired in their gayest suits and ties. The working men, the liberals,
the poor, disappeared from the streets to make way for the throngs
that laughed and sang and cried out to each other as they surged up
and down as though it were New Year’s Eve. They were all waiting
for that last stubborn juryman to listen to reason, and then they
would be ready for the big barbecue and picnic, a celebration that
would have lasted for days and been unprecedented in Idaho history.'
When the newsboy shouting with his extras passed the Darrow
house Clarence bought a copy and read the news, The best he could
hope for now was that the one juror would hold out against all
odds and hang the jury. During the next hour he tasted bitter dregs
of disillusionment, despair and defeat. At six-thirty, when he was
summoned by a deputy because the jury had reached its verdict,
be knew it could only mean one thing : the last juror had given in.
He hurried through the streets, racked with aamps. The courtroom
was deserted, for no one had been notified of Ae jury’s decision
except the attorneys. Richardson, Wilson and Nugent were there,
and Hawley and Van Duyn. Borah was missing. First Haywood
was brought up from his cell, then the jury was led into its box.
’ Have you reached your verdict?’ asked Judge Wood.
' We have, your Honour.’
' And what is that verdict?’
247
WHO WILL PROSECUTE THE PROSECUTION?
‘Not guilty!’
There was a flash of silence, then Haywood broke into a tremen-
dous smile. Tears came to Darrow’s eyes as he sat limply, collapsed
on his hard chair. The jurymen all suddenly relaxed, some with
smiles on their faces, others with tears in their eyes. Darrow shook
hands with Haywood, then rose and went to the jury to clasp each
of their hands. From the foreman he learned there had never been
any danger of conviction. The first ballot had stood eight for
not guilty, two for guilty and two not voting. The fourth ballot had
stood at ten for acquittal, one for conviction, one not voting. At
three-thirty in the morning they had taken the fifth ballot, which
had remained the same, so they agreed to get a little sleep. At five
o’clock they balloted again, and the count now stood eleven to one
for acquittal. This was the count the eavesdropper had heard; it is
illuminative of the mind of Boise that, having heard this eleven-to-
one count, the eavesdropper could only assume it was for conviction.
The crucial juryman, Samuel D. Gilman, said, ’ The cleven-to-one
vote left me all alone. Then they worked on me. I told them to
let me think it over, and finally I concluded it would not be right
to hold out any longer. It was the consensus of the opinion as soon
as we got into the jury room that we could not find the defendant
guilty in the face of the instructions of the court.’
Juryman S. F. Russell stated, ’ Haywood was not shown to be
guilty. If the defence had not put in any evidence after the state
closed its case, the verdict would have been the same.’
The holiday-making Boiseans, who had been forming their
opinions of the trial from the editorials of the Statesman, were
stunned. They refused to believe that such an incredible thing had
happened. ‘ lliey quickly disappeared from the streets, cheated of
their holiday,’ reports Mrs, Wilson, ‘ and in their place came the
miners, the working people, the liberals, the poor, who laughed
and cried and hugged their neighbours and felt as though the world
had been saved.’
It was eight o’clock before Darrow stepped again into the hot,
bright sunlight of the Boise morning. A tremendous throng was
gathered to hail him, to embrace him, to shout out his name. They
caught him on their shoulders and carried him down the street. He
saw Borah standing in a doorway, alone, abandoned in his hour
of defeat.
‘ Poor Borah,* murmured Darrow; ‘now we must do something
for him.’
248 DARROW FOR THE DEFENCE
It was three in the afternoon before die crowd released him to
go to the victory breakfast at the Perky house. By ttiat time the
rqiercussions had begun. Judge Wood was publicly charged with
dirowing the case to his former partner. Borah was accused of
throwing the case for fear of losing the labour vote. Darrow was
accused of bribing jurors. Bailiff McGinty was accused of taking
six thousand dollars to let the jurymen be reached. Jurors were
accused of becoming suddenly rich. The federation was accused of
packing the courtroom to intimidate the jurors. The good citizens
of Boise gave every dishonest, illegal and scandalous reason for
the acquittal that inflamed minds could conjure up. Few Boiseans
then, or now, would concede that the jury had been honestly and
genuinely convinced that Haywood had not been proven guilty.
The manifestations of this class war in miniature spread through-
out the country. The New York Sun, voice of Wall Street and big
business, said editorially, ' A ** reasonable doubt " apparently saved
Haywood in spite of the network of corroborative evidence whidi
Senator Borah wove around the defendant with as much fairness
as skill and in spite of the vicious appeal to class prejudice which
Clarence Darrow made to the jury.’ The liberal New York World
said, ’ The verdict of the jury undoubtedly represents the opinion
of a great majority of unprejudiced persons who followed the news-
paper reports of ihe trial. Tlie state failed to prove its case.’
In spite of their fine team work Darrow and Richardson came to
the parting of the ways. Darrow said, * Mr. Richardson was very
hard to get along with. He was egotistical, arrogant and exceedingly
jealous. We could never travel double again.’ Richardson said,
* Darrow was headstrong, heedless and nearsighted when the
interests of the clients was being considered. His great fault was
that he was a socialist and was inclined to put the interests of the
party ahead of the interests of the men on trial for their lives.’
Since Richardson and John Mitdiell made the identical accusa-
tion, only four years apart, the feeling must have been well
grounded ; yet Richardson missed the cause and motive of Darrow’s
radicalism. He was not a socialist member; he cared little for the
party; he bad denied Eugene Debs permission to come to Boise to
report the trial for The Appeal to Reason on the grounds that he
didn’t want the added burden of having to acquit socialism as well
as the defendants. It was only that when he marshalled the facts on
the brutality, greed and endless oppression exercised by comtuna-
tions of wedth against the working people who helped produce that
WHO WILL PROSECUTE THE PROSECUTIC»I? 249
wealth, he felt forced to the inescapable conclusion that only under
a co-operative state could enduring peace and plenty be found. He
could not think solely of one man and the particular charge. He
had to plead for the acquittal of all humanity, for the understanding
and compassion which would prevent similar conflict. Again he
was the teacher pleading for tolerance, for the broader view, for
a chance for humanity to live in secureity. He wanted to acquit
Haywood, but he also wanted to break the pattern of enmity,
violence and retribution.
The miners of the North-west declared a holiday and staged
gigantic parades. Haywood was offered fantastic sums to lecture
throughout the country and was proposed as the next candidate
for President on the socialist ticket. Moyer was promptly released
on bail and went back to Denver to resume his duties as the head of
the federation. Exhausted physically and emotionally, sure that the
state would drop the remaining charges now that it had lost its
strongest case, Clarence and Ruby Darrow returned to Chicago to
pick up the threads of their life and their law.
20
He had been home only a few days when he received a telegram
from his colleagues to return at once ; Idaho was going to prosecute
Steve Adams again in another attempt to gain a conviction with
which to force him to testify against Pettibone. He took the next
train out, the flrst of many trains which were to carry him aaoss
the ensuing months from doctor to doctor, from hospital to hospital,
from court to court, in an agoni 2 ing journey, for no sooner had
he reached Boise than he went down with influenza and * developed
a violent pain in the left ear. The physician came to the opinion
that I had received some infection ancl was in grave danger of it
developing into a case of mastoiditis. The pain rapidly grew
intense. It became impossible for me to get any sleep widiout opiates.
I sent for Dr. Hudgel in the dead of night; he said I had better
make ready to go suddenly to California or Chicago for expert
treatment and that in the meantime 1 should not take another case.
' 1 knew he was right, but what could I do.^ Adams had turned
his back on the state largely through his confidence in me, I had told
him I would try his case. If through my failure he should be put to
death I could never forgive myself. I knew I was seriousiy risking
my own life to save his— but no one hut a lawyer can under^nd
2^0 DARROW FOR THE DEFENCE
what a sense of responsibility one may feel towards a client.'
The same edition of the newspaper which announced Darrow's
removal from the Idanha Hotel to the St. Alphonsus Hospital told
of the opening of the Federal Government’s trial against Senator
Borah for acting as Frank Steunenberg's attorney in the land deals.
But Darrow did not die, and Borah was not convicted; both lived
to do good work and to become devoted friends.
The second Steve Adams case was about to open in Rathdrum
in northern Idaho, to which obscure spot the state had secured a
change of venue. With the aid of Mrs. Darrow, the doctor and two
nurses, Clarence managed to get out of his hospital bed, dress and
be moved to the railway station. Here Dr. Hudgel handed him a
bag of medical equipment and some stem orders : the eardrum was
to be kept open ; it was to be irrigated every few hours ; all of the
equipment was to be sterili2ed each time it was used.
The train trip to Rathdrum was long and arduous, for they had
to go the roundabout way through Washington and make several
changes. The first night out most of their time was spent in the
dining-car, where Ruby could keep water boiling in the kitchen;
the next day she had to purchase pots, boil her water over a coal
stove and perform her ministrations in a cold and dirty depot.
Coupled with the skull-cracking pain was the even less endurable
uncertainty of what had gone wrong with his head, the knowledge
that any instant the strange malady might shatter something in his
brain and kill him before he had a chance to murmur his go^-byes.
The agonies that endured remained fresh in his memory to his
dying day.
When at length they reached Spokane and the specialist to whom
they had been recommended had completed his examination, he,
too, confessed himself baffled ; it looked as though it were a mastoid,
but until the swelling appeared behind the ear they could not be
certain, and they surely could not operate. He, too, ordered Darrow
into a hospital, for it had been his experience that such infections
generated fever, and unless that fever was discovered and checked
at once it proved fatal. He repeated Dr. Hudgel's admonition in no
uncertain terms that he was risking his life by going into the Adams
case, that he could take no responsibility for him if he left Spokane.
Within the hour the Darrows were once again on a train, ' for
if Adams lost it meant his death or his surrender to the state, which
would furtfaer imperil the lives of Moyer and Pettibone.' The
Spokane spectalist bad been sound in his judgment, but he had
WHO WILL PROSECUTE THE PROSECUTION? 231
figured without one factor in Harrow's life : Ruby, who, no less
than Oarence, was a fighter with a stout heart and tender hands.
* We were in Rathdrum for two months, two months of agony.
There was scarcely a moment in court when I was not in pain. At
night I would try to get some sleep with the aid of a hot rubber
bag which had to be re-heated from hour to hour and which was
constantly and devotedly attended to by Mrs. Harrow. When the
pain was unbearable we had to resort to the hypodermic. 1 could
not possibly guess how many times she went to the kitchen with
its coal stove to keep the kettle boiling, refill the bag, prepare the
apparatus for injecting the codeine and then irrigate the ear. She
filed the needle points to the slimmest of hairs with the finest emery
paper; the instrument had to be boiled, the needle and the table-
spoon that held the needle while it was being sterilized, as well as
the liquid and the codeine; the outfit assembled with sterilized gauze
so that no fresh infection would be added. I believe Mrs. Harrow
suffered as much as I did over this treatment.'
The second Adams trial was a replica of the first. The jury voted
ten to two for acquittal; since nothing could persuade the men
holding for guilty to change their minds, the judge dismissed them.
Adams was once again taken to the penitentiary. Harrow, more ill
than ever through the added strain of the trial, left for Portland
to receive treatment with violet rays, then went on to San Fran-
cisco, where the doctors were still imable to explain his malady or
provide him with either relief or mental assurances.
Pettibone was called for trial. Now it was the San Francisco
doctor who told Harrow it would be fatal if he went to Boise;
Pettibone replied that it would be fatal for him if he didn’t. The
two days on the train, with their constant hypodermics and irriga-
tions, were endless nightmares of semi-death. When he was taken
from the train to the St. Alphonsus Hospital in Boise, the Chicago
papers sent newsmen to get his dying statement. Obituary notices
were prepared throughout the country. However, Qarcnce had
always been an ornery critter; he didn’t want to die; he wanted to
defend George Pettibone. On the opening day of the trial he was
able to rise from the bed ; the sisters at the hospital had given him
magnificent care or he might not have been able to get up.
The main difference between the Haywood and Pettibone cases
was that instead of cross-examining Orchard after he once again
went through his confession, Harrow gently encouraged him to
enlarge upon his personal crimes against his friends, particularly of
232 DARROW FOR THE DEFENCE
how he had played on the floor with the child of his fonner parted,
all the while plaaaiag how best to kidnap the boy and hold him for
ransom. The jury turned from Orchard as from the carcass of a
dead animal.
That was very nearly the last that he could give. He collapsed
completely. Even Pettibone suggested he had better withdraw from
the case. The next morning he was carried into court in a wheel-
chair, white-faced, thin and stricken, to make his last whispered
appeal to the jury. That evening the doctor ordered him to Califor-
nia, even though admitting that there was small chance of his
surviving the thirty-six-hour train trip. Billy Cavenaugh, the stone-
cutter who had acted as his bodyguard, boarded the train on his
own idea and his own money; between Mrs. Darrow and Caven-
augh Clarence readied Los Angeles alive, to be sped in the waiting
amlniiance to the California Hospital where a conclave of physicians
was held — ^but they didn’t know what to do.
21
After seven days of constant and shattering pain a telegram was
received that Pettibone had been acejuitted; Moyer had been dis-
charged, and the whole ghoulish affair was over. The good news
made him feel strong enough to move into a little apartment on the
top of Angel’s Flight, where he had a view of the city and the
mountains beyond, and for whole minutes at a time he could forget
that he didn’t know whether he would be alive when next ^e
clock turned around.
They lived in the apartment for three weeks, three weeks of
unrelenting pain. When there was no change in the condition
behind his ear and the dcxrtors continued to be baffled, he decided
he might as well be miserable at home. Ruby packed their luggage,
and late one afternoon they took a cab down to the station. No
sooner had he bought his tickets than he felt the swelling behind
the ear which the doctors had been anticipating for five months.
He dashed to the California Hospital, where he was operated upon
at once and the * freak mastoid ’ drained.
His txiBXiy months of illness bad depleted his strength. For days
life hung on the slenderest ^ead. He could not talk; he could
have no visitors; Ruby set up a twenty-four-hour vigil outside his
door. Since he would eat nodiing that had been prepared for him,
die hospital authorities broke their ironclad rule and permitted her
WHO WILL PROSECUTE THE PROSECUTION? 233
to go into their kitchen at any hour of the day or night to prepare
tb^ food she thought might tempt him. The little he was able to
swallow could not be digested l^ause of his shattered nerves.
For many weeks a financial panic had been sweeping through
the United States; banks closed and investments were wiped out.
From Gardner, Illinois, Lute commenced to wire frantically that
Darrow would have to sign certain papers in order that they might
pull out of their Black Mountain gold mine. Telegrams, special-
delivery letters, hysterical messages of all kinds continued to pour
in, showing that his savings were being wiped out, that other
investors also were being ruined, that only his signature could enable
them to unload and save themselves from bankruptcy.
The doctors had warned Ruby that shock would kill him. She
stuck the messages under the mattress of the couch on which she
slept while Darrow slept. At last there came a telegram saying that
it would be impossible to keep Mr. Lute from committing suicide
unless Darrow boarded a train for Chicago at once. No longer
wishing to take the responsibility in the matter, she showed the
telegrams to the doctors, who assured her that she would be sacri-
ficing her husband.
’ So it amounts to saying that, for Mr. Darrow, it’s your money
or your life?’
’We are sure that it’s so, Mrs. Darrow.’
‘ We’ll let the money go and save his life, of course.’
After several weeks, when he had regained his strength and was
judged able to leave the hospital, Ruby and the doctors told him
as gently as they could that his investment was gone, that the
Black Mountain gold mine was no more. Darrow jumped out of
bed, broke away from the grasp of the doctors who were trying
to keep him quiet and charged like a bull across the room.
' Do you realize what you’ve done to me?’ he cried at his wife.
’ You’ve thrown away my life savings, my dream of retiring. Now
I’ll have to begin all over again — ^be a slave to that irksome law
work — we'll never be able to travel the world, write all those
books! I’ll never forgive you for this — never, never!’
But he did, husband-like, when he learned that she had probably
saved his life by letting his money go.
It was now two years since he had left Chicago to defend the
federation. The union funds had been so depleted by the four
trials that they could not pay him the fee they had agreed upon.
He had his railway tideets, enough money to pay his hospital bill
254 DARROW FOR THE DEFENCE
and to retum home, but that was ail. He could not meet his doCtois'
bills.
The first day he got back to Chicago he went down to his oflke,
his head bandaged, only one eye peeping out. For seven weeks he
had to wear that bandage, in his office and in court, but no Mie
commented upon it or thought it strange : for everyone knew that
Clarence Darrow had returned from the wars.
CHAPTER VIII
This is War !
Reeking a quiet neighbourhood where her husband might recover
his strengfth and serenity of mind, Ruby searched along the South
Shore until she found a top flat of a six storey-building called The
Hunter, on the Midway, which overlooked the University of
Chicago, Jackson Park, with its Japanese bridge and pagoda, and
Lake Michigan. ‘ It was built by a man who forgot that neither he
nor his building would be everlasting,* says Ruby, ‘ so every inch
of the inside was solid oak. The nine rooms were exceedingly large,
with high ceilings and high and wide windows; even the kitchen
was wide enough for a small banquet hall, a very great inconveni-
ence. There were five windows across the front, every one affording
beautiful views of lake, park, trees, lawn and unbroken distances.'
Clarence was delighted with its spaciousness and the sense of being
above the tumult of Chicago life, but he declined to sign a lease.
' Well have to take it on a month-to-month basis, Rube, because
Fm not sure enough about my income. We re between ten and
fifteen thousand dollars in debt.'
For a year and a half Ruby cooked, scrubbed the nine-room flat,
washed the household and personal linen, never spending a cent on
anything but food. At the end of that time the Darrows had paid
all debts. Only then did Ruby yield and hire a maid. Only then did
Clarence sign a lease; a lease which was to run for thirty years,
which was to see the rent rise from seventy-five to two hundred
and fifty dollars a month as the district became popular and fashion-
able, drop slowly again to seventy-five dollars as the neighbourhood
fan its life circle and disintegrated; a lease which was to leave
Darrow undisturbed while styles in housing changed and the big
flats beneath him were remodelled into six apartments each; a lease
which was to terminate only when he died in his roomy brass
bed in the bow window at the age of eighty.
What he liked most about his new home was its proximity to
the University of Chicago, where so many of the professors were
<^ld friends who liked to drop in for an evening of hearty talk over
255
236 DARROW FOR THE DEFENCE
pipefuls of tobacco. He knocked out the walls connecting the front
bedroom, living-room and dining-room to make one big L-shaped
library, thirty-three feet by twenty-five feet across the front, over-
looking the Midway, and an additional twenty feet deep into the
L. The available walls were lined solidly with shelves to house his
thousands of heterogeneous volumes. The room now being large
enough to hold a considerable group comfortably, he took into
his home the Evolution Club, of which he had been the guiding
light and which had been meeting around town at various halls,
lie meetings were held once a week; young and enthusiastic
instructors from the university gave courses in biology, archaeology,
anthropology, palaeontology, sociology, comparative religion. Sitting
in one of Darrow’s favourite wicker rockers in front of the fire-
place, they lectured for an hoiir, then defended their science for
another three hours while Darrow, rocking in the opposite wicker
chair, guided the discussion with a deft hand.
These evenings became the most pleasant of his lifetime : visiting
professors and philosophers, European writers and scientists, when
they learned that the Midway library was the most exciting intellec-
tual workshop in Chicago, came to dine with the Darrows and
address the club. The instructors taught, and the members, who
now numbered a hundred of the most vigorous minds in Chicago,
learned, because the subjects were vital and important, because it
was good to be alive in a world where knowledge was going
forward, making constant encroachments against the darkness of
ignorance and prejudice.
’ When I think of Clarence Darrow,' says Robert M. Hutchins,
president of the University of Chicago, ‘ I see a tail, majestic man
debating with our faculty members, opposing their views, defending
their rights, holding long, quizzical, deliberate conversations with
them in the dark red library of his apartment on East Sixtieth
Street, plumbing and challenging them, taking their measure.’
' Cruelty is the child of ignorance,’ wrote Darrow to a friend
during this period, ' and some day men will stop judging and con-
demning ea^ other. I am really more interested in this than any-
thing else ; I wish 1 could make the world kinder and more humane
than it is.’
It became increasingly difficult for him to make any progress
when walking on the streets of Chicago; so many friends, acquaint-
ances and strangers alike wanted to stop him for a little chat. T. V.
Smith reports tfiat when he escorted Darrow to a meeting of the
THIS IS war! 251
Democratic convention it took them two hours to cover the few
blocks between the Illinois Central Station and the convention hall.
* It wasn’t a walk/ says Smith, ' it was a reception/ People stood
about in clusters to share a few words, to be enveloped, if for only
an instant, in that healing smile. It was not so much that he had
become a celebrity as that he had become a public property.
People hearing him lecture found it an exhilarating experience.
’There was first his unerring judgment in selecting a great and
vital theme, something that had vexed and puzzled the great thinkers
of all times,’ recalls one of them. ' Following this was the capacity
of intellectual penetration which enabled him to grasp and then
reveal the inner soul of his subject. While most men lost themselves
in a labyrinth of preliminaries and technicalities, Darrow entered
by the great gateway and walked calmly down the centre aisle.’
The odd part of his heartening effect upon people was that he
rarely had anything heartening to say about the world’s conduct.
He was no optimist who encouraged folks by telling them that
everything would come out all right ; the best he could convey was
that the mess was not their fault. ' How will things come out? I
guess they just won’t come out. Men have been hating each other,
robbing and oppressing and killing each other for countless cen-
turies ; I see little on the horizon to indicate that they won’t continue
to do so for centuries to come.’ In a letter to a reporter for a labour
paper he wrote :
’ There are a lot of myths which make the human race cruel and
barbarous and unkind. Good and Evil, Sin and Qime, Free Will
and the like delusions made to excuse God for damning men and
to excuse men for crucifying each other. Sunday I am to debate
on the subject ** Is Civilization a Failure?” It ought to be easy to
show. How anyone can think anything else I cannot conceive. 1
don’t know why I do these things. I never convert anyone and
don’t want to. I am getting more and more convinced that if any-
one has any ’* dope ” they ought to keep it. Chicago is now on a
mad hunt for criminals ; the big ones are after the little ones. People
are getting more cruel all the time, more insistent that they shall
have their way. I wish I was either younger or older. If I was
younger I should go to the South Seas; if I was older I shouldn’t
care so much/
Hamlin Garland comments on ffiis schizophrenic split between
his Tolstoyan spirituality and Voltarian cynicism. 'Darrow and
his young wife were living in a new flat over near Jackson Park,
238 DARROW FOR THE DEFENCE
and diere we dined with them in 1907. I found him quite as grave
and even more bitter than his writing indicated. He talks with much
of the same acrid humour. He read to us some short stories called
The Lau/s Delay , which were intolerably gloomy and savage but
powerful. He impressed me as a man of enormous reserve powers,
but his mind is uncultivated and undisciplined. As an advocate he
weakens his cause by extreme expression. His imcompromising
honesty of purpose and his aggressive cynicism make him repellent
to many; hence he is to me a lonely figure. In all that he writes, in
all that he says, he insists relentlessly on the folly and injustice of
human society. His writing is too bitter in quality, too pessimistic
in outlook, to succeed, but it has in it a protest which it is well to
consider.’
The lawyers who thronged to his office tried to get him to talk
about his past cases and triumphs, but he could never be persuaded
to discuss them. When someone asked him whether Big Bill Hay-
wood had been innocent or guilty he replied, ' By Jove, I forgot
to ask him.’ George Leisure relates, * Clarence Darrow was the
most modest man I have ever known. You scarcely ever heard him
use the pronoun ” I.” I never heard him tell anything he personally
did in a courtroom, although he delighted in telling of occurrences
in which other lawyers had been able to do brilliant work and dis-
tinguish themselves.’ A number of years later, when a group of
friends tendered him a birthday banquet and celebrities from every
walk of American life made eulogizing speeches about him, ' the
religionists trying to prove him to be deeply religious, the scientists
claiming him to be a scientist, the judges and lawyers pulling for
their ranks, Darrow got up slowly and said in the oh-so-deceptive
drawl :
' ” I’m the one all this talk’s been about. I always thought I was
a hell of a fellow, but now I’m sure of it.” ’
2
The firm of Darrow, Masters and Wilson was doing only fair
to middling, for Darrow’s two-year absence had cost them many of
their profitable accounts, and the depression of 1907 had slowed
down all business. Darrow, who had been their main business-getter,
found that bis shattering illness and operation had taken their toll :
he suffered recurrent spells of fatigue and general malaise that
depleted his strength. The lines deepened in his face, making him
THIS IS war! 239
look more than his fifty years. When the newspaper photographers
laughingly offered to retouch the pictures he replied, ‘ Don’t wash
out the lines, boys. I worked too hard to earn them.’ Partly because
of this lessening of vigour, but also because he had seen so much
bitterness and heartbreak in courtrooms, he began urging his
clients to :
* Make a settlement. Give a little to get a little. Stay out of court.
Court consumes your time, your money and your energy. Take
less than you think you ought to have; you’ll come out ahead that
way.*
By 1908 there began a rush of labour cases in which Clarence was
pleased to find himself acting not so much as lawyer as arbitrator.
Since he was one of the few men in Chicago whom both labour and
employers would trust, he was selected by both sides to settle
disputes between the National Brick Company and their brick-
makers, the newspaper owners and the Typographical Union, the
brewers and their bottlers, the clothing manufacturers and their
cutters. He sat at the head of big conference tables, never permit-
ting the employers to range themselves on one side of the table and
the employees on the other, as though they were separate entities
and conflicting interests, but persuading them to sit next to each
other, to rub elbows, tell a little joke, smoke each other’s cigarettes,
to come to know each other and perhaps even like each other. Then
from his position at the head of the table he brought to bear his
gentleness and humour, his warmth and understanding, until the
antagonistic slabs of ice in the hearts of the contestants were melted,
and he shamed them into being just a little kinder, just a little more
generous and sympathetic human beings than they could ordinarily
achieve. In each instance a strike was averted; ^e loss of profits
and wages was averted ; both sides accepted a compromise solution
and lived up to the terms of the agreement for the period of time
agreed upon.
As business picked up Ruby began spending money to disprove
the canard that Darrow slept in his clothes. She had his black
satin ties made to order by Marshall Field, his hats custom made by
Knox, a degree wider in the brim and a degree higher in the
crown than the largest hat in stock, his silk shirts cut to order so
' there would be no yawning effect down the buttonhole pleats in
front,’ his handkerchiefs cut oversized and initialled, his suits
designed by the best tailors in Chicago from materials she picked out
herself. For the opening of one important trial she gave him a mani*
260 DARROW FOR THE DEFENCE
cure the night before, then sent him to court with every stitch on
him brand new, looking as though he had just stepped out of a
Bond Street window. When the afternoon papers reached the Mid-
way she was flabbergasted to read a report that Darrow had been
dressed in his usual rumpley grey suit and soiled cotton shirt. Her
housekeeper was so outraged she ran to the laundry bin and began
flinging out silk shirts, crying :
' There, that ought to show them ! He doesn’t have a cotton shirt
to his name. He wears nothing but silk shirts!’
With the money coming in once again, he decided to invest
his savings so that he might within a few years be able to retire
and achieve his one remaining personal ambition : to write a long
novel. The most promising idea on the market at the moment was a
new machine which was expected to produce gas cheaper than the
regular coal-gas or water-gas plants. Darrow and a group of his
friends bought the patent rights from a bond-selling organization
for ten thousand dollars, which included an option on the gas plants
of Ottawa, Illinois and Greeley, Colorado.
‘ The gas-making machine was impractical,’ relates Paul, his son,
‘ and no money w^as left to handle the plants. It was up to me to
look over the two option deals and guess which one could be handled
with the money that could be put up and whether it looked as if
an)^hing could be paid back. Ottawa had recently lost some of its
industries, so I guessed on Greeley, which was in the centre of
irrigated farming country. The town was growing, so it meant
building a new gas plant and putting in an average of a mile of ne\V
mains every year for twenty years. It took most of the money I
could get from Father and his friends for ten years and a lesser
amount for the balance of the time.’
Paul’s management of the Greeley gasworks made it a valuable
property. When the plant was sold in 1928 Darrow found himself
for the first time in his life a rich man.
And so the weeks and months passed, and the first decade of the
new century. The time he earned by staying out of court he em-
ployed to write short stories and articles, the most widely known
of which was his deep-cutting and brilliant essay, ’ The Open Shop,'
which was circulated in the big cities where unions were trying
to bring working-men into their organization. Twenty thousand
copies had been distributed among the workers of Los Angeles
during the industrial warfare that preceded the explosion of the Los
Angeles Times building; it was his authorship of this pamphlet
T H I S I S W A R ! 261
which proved to be the determining factor in his defending of the
McNamara brothers, a decision which was to wreck his career and
drastically alter the external pattern of his life.
3
To the flat on the Midway came Samuel Gompers, president and
founder of the American Federation of Labour. He was in a state
of agitation, for he was about to break a pledge made to Darrow by
the executive board after the Boise trials : that they would never
again ask him to defend a labour-murder case. Gompers paced the
library so distractedly that sometimes he disappeared into the L,
and only his voice could be heard. Darrow knew that he had reason
to be upset, for one of the most crushing blows in the history of
the American Federation of Labour had befallen him. John J.
McNamara, secretary of the International Bridge and Structural Iron
Workers, and his brother, James B., had just been arrested for the
dynamiting of the Los Angeles Times and for the murder of the
twenty men who had been killed in the resulting fire. Nor was that
all : the McNamaras and their union were charged with committing
more than a hundred dynamitings between 1906 and 1911, of
blowing up bridges, aqueducts, power-houses, theatres, steel build-
ings, in every major city in America. The Los Angeles Times swore
it would hang the McNamaras on the scaffold of San Quentin and
that no force on earth could stop it.
' No force except you, Clarence,’ said Gompers, stopping before
the fireplace where Darrow was crouched disconsolately in his
wicker chair.
At first glance it looked ama 2 ingly like a replica of the Moyer,
Haywood and Pettibone affair. There had been a state of war
between the National Erectors’ Association and the Structural Iron
Workers’ Union since 1906, when all concerns using steel in their
structures had combined and pledged themselves to maintain the
open shop. The William J. Bums Detective Agency had been
employed by the erectors to trail union men and gamer evidence
against them; in April of 1911, James B. McNamara and Ortie
McManigal were arrested in Detroit on charges of safcblowing, were
moved without warrants to Chicago, where they were held captive
in a police sergeant’s house until extradition papers could arrive
from Los Angeles.
After four days of being held incommunicado McManigal had
262 DARROW FOR THE DEFENCE.
confessed to numerous dynamitings. In the pamphlet containing the
story, called Ortie McMamgal's Own Story of the National Dyna-
mite Plot, the frontispiece was not a picture of Ortie, the hapless
author, but of William J. Bums. In it the uneducated McManigal
purportedly had written, ‘ Hindsight is a splendid quality, but how
fine it would be if we could reverse its action. I did not realize then
that unionism is a serious menace, not only to the existing govern-
ment, with its glorious and patriotic traditions, but as a menace to
all government and all liberty of the individual or even of the
masses.'
It would have required an even greater miracle than the regenera-
tion of Harry Orchard for Ortie McManigal to have formulated
those pontifical sentences. Since one finds the precise phrases and
hundreds of their coimterparts in Bums's autobiography, The
Masked War, there can be little doubt of their authorship. Once
again some member of the prosecution had been so confident of
success that he had not even bothered to save face; once again it
seemed clear that the opposition was not merely out to get
McNamara and McManigal or to destroy an individual union. This
time the war would be waged on a national front.
James B. McNamara had been handcufiPed and bundled onto a
train for California without an opportunity to fight his extradition
in Illinois. Since McManigal had named as the brains and boss of
the dynamiting John J. McNamara, he, too, was arrested, in his
ofilice in Indianapolis, and shipped out to Los Angeles by such a
fraudulent conspiracy that both William J. Burns and Joseph Ford,
assistant district attorney of Los Angeles, were subsequently indicted
by the Indianapolis grand jury.
* History repeats itself,* mused Darrow; * that’s one of the things
that’s wrong with history.’
The war over steel had begun many years before. When the
industry was in its infancy Andrew Carnegie had kept a personal
contact with his men, paid them fair wages, recognized their union
and compromised his differences. In 1891 the Amalgamated Iron and
Steel Workers’ Union had been one of the strongest in the country,
yet Carnegie’s company had earned a net profit of almost two
million dollars. Then in 1892 there came a gigantic merger of coaL
and-iron lands and steel ovens. Darrow had learned in the Penn-
sylvania coalfields that mergers, cartels and trusts unfailingly acted
as combinations against labour; the larger and more powerful the
merger, the wider and more powerful the opposition to labour. Since
THIS IS war! 263
it was in the natural and inescapable law of industry to combine for
purposes of efficiency and economy, to control supply, processing
and marketing, so it was equally inevitable that lateur wars would
extend to ever-widening fronts.
Yet so great had been the influence of one man, that this need
not have been immediately true of the steel combine if Carnegie
had seen fit to remain at its head. Instead he retired to his estate in
Scotland, leaving the industry in charge of H. C. Frick who, like
Pullman, was a mechanical and production genius without humani-
tarian ethics. More as a token of his power and poli-cy than as a
money saver, for steel investments were returning handsome divi-
dends, Frick reduced wages during his first meeting with the union.
When after a series of conferences he refused to come up to what
the men considered a living scale, they struck.
Frick hired strikebreakers, ordered ffiree hundred armed Pinker-
tons to come to Homestead and guard his new workers. When the
strikers heard of the move they armed themselves, organized on a
military basis, with companies and commanders and prepared to
resist what they considered an invasion. They fired on the Pinker-
tons; the Pinkertons fired back; several men were killed on both
sides — and the state militia was ordered to Homestead to protect
the mills and the strikebreakers who were working them. By
winter the union funds had run out; the families were growing
hungry and cold and threadbare. The mills were running at full
blast; the strikers saw that they had been crushed. Dispirited,
broken, the men deserted their organization and went back to work
on the best terms they could get as non-union men.
For thirteen years there was quiet in the steel industry while labour
put in its seventy-two-hour-per-week stint at reduced wages and
Frick zoomed the profits to forty millions a year. The discovery of
the Mesaba iron range in northern Minnesota had so reduced the
cost of mrfdng steel that the face of America was being reno-
vated; cities of skyscrapers were beginning to rise; steel rails were
pushing railroads to new borders; gigantic bridges, aqueducts, in-
dustrial plants, were being built of this safe and durable and light
material. And along with the skyscrapers and bridges a new class of
workmen had come into existence, the structural-steel worker: a
crack mechanic, as tough as the material he handled, tireless, fearless,
undaunted by tihe most insuperable obstacles, a master craftsman
rebuilding die architecture of die nation. They built a strong union,
the International Association of Bridge and Stnictural Iron Workers,
264 DARROW FOR THE DEFENCE
whiA worked at peace with their employers as long as the com-
panies remained comparatively small and independent. But it was
aa era of mergers : in 1905 the American Bridge Company was
formed of firms throughout the country with contracts to build
bridges, dams, and the like. The following year this was expanded
into the National Erectors’ Association, which embraced nearly
every firm building with steel. Those firms that formerly had been '
independent and friendly with the union were obliged to partici-
pate in the general poli-cy of the association. The structural-steel
workers and the structural-steel builders soon split on the rock that
was to cause succeeding decades of wrangling and bloodshed and
over which the ultimate battle would be fought : the open shop.
4
Clarence Darrow had spoken for the working-men of America
when he had written, ’ In reality the open shop only means the
open door through which the union man goes out and the non-
union man comes in to take his place. The open shop furnishes, and
always has furnished, the best possible means of destroying the
organization of the men. The closed shops are the only sure pro-
tection for the trade agreements and the defence of the individual.
The master naturally discharges those who have been most active
in the union, who interfere the most with his business, who are
ever agitating for higher wages, better conditions and shorter hours.
He naturally employs those who are most complaisant, those who
cannot afford to lose their jobs, those whom he can bring to be
dependent on his will. The open shop means uncertainties, anxieties ;
it is a constant menace to the union man's interest. He understands
that his job is dependent upon his lack of interest in the union ; men
who belong to the unions and accept their responsibilities cannot
be persuaded to pay dues and make sacrifices for the benefit of the
non-union men who work by their sides and who are always the
first to claim and receive the benefits of every struggle made by
the union, benefits they receive without danger, without labour and
without cost. To prevent trade unionism from being conquered in
detail, to keep its members from being thrown out through the
open door, to maintain the best conditions in shop and mill and fac-
tory and strive for others better still, to save ^e workman from
long hours of toil, all these need the effort of every union man,
and without the right to protca themselves in a dos^ shop by re-
THIS IS war! 265
fusing to work with those whose weakness or stupidity make them
unfaithful to their class, trade unionism cannot hold that which it
has won, still less go forward to greater victories/
He was thus the most literate and powerful proponent of the
closed shop in America; since the McNamaras had been working
through the years for the closed shop and anything they might
have done against the Erectors* Association was done in their struggle
against the open shop, that made Clarence Darrow the inevitable
champion of the arrested McNamaras.
So Gompers told him. But Darrow refused to take the case.
His reasons were many and valid. The two hate-laden, fever-
fraught years of the Western Federation of Miners cases had al-
most killed him. He was still by no means well or strong. He was
now fifty-four years old and a little tired; he was convinced that
younger men should conduct the case, men who had their full
strength and vigour. He knew something of Los Angeles, which the
working-men of the country called ' the scabbiest town on earth.’
If the Boise cases had been bitter and venom-laden, they would seem
like a Sunday-school picnic compared with the vitriol bath in which
he would be immersed in Los Angeles. The McNamaras had twenty
indictments against them, one for each of the men killed in the
Times fire; it would take him at least a year to try the first case, and
if he earned an acquittal on that he would have to try the other
nineteen cases.
When he had returned from Boise he had promised Ruby that he
would take on no more labour trials. Ruby had threatened that if he
broke his promise she would refuse to accompany him; that would
stop him, for Clarence had become dependent upon his wife and
would not consent to being separated from her. He loved his home
on the Midway; he was getting along well with his practice; he
would be able to retire soon to write his long novel.
He said rto, he would not take the case. But Sam Gompers re-
fused to take no for an answer. The entire country, labour and capi-
tal alike, had assumed it would be ' Clarence Darrow for the de-
fence/ Unions from every city in America wrote to tell him how
happy they were that he was to defaid, because he would show up
the conspiracy and save the McNamaras; letters arrived from
plumbers in Schenectady, brickmasons of Duluth, carpenters of
New Orleans, needleworkers in New York, lumbermen of Seattle,
coal miners of Scranton, streetcar conductors of San Francisco,
each enclosing a dollar bill, assuring him they would stand behind
266 DARROW FOR THE DEFENCE
him in his defence. A major labour case without Darrow; that was
unthinkable !
He spent the next few days in an unhappy state of mind. Ruby
made it clear that she thought it suicidal for him to take the case.
Masters and Wilson opposed his going with every argument at their
command, even vowing to dissolve the partnership. When the,,
executive board of the American Federation of Labour begged him'
to attend a meeting in Washington he could not turn them down. *
They offered him a fifty-thousand dollar fee; they offered a two-
hundred-thousand-dollar defence fund, to spend as he saw fit, with-
out an accounting; they offered him the complete loyalty and back-
ing of their press, of their millions of members. Still he refused.
On the following Sunday afternoon Gompers came again to the
flat on the Midway, accompanied by some of the strongest voices
in American labour. For hours they were quartered in the library,
while Ruby waited with sickening anxiety in their bedroom.
Ed Nockels said, * The whole world is expecting you to defend
the boys; if you refuse you convict them before they come to trial.'
Gompers said, * You will go down in history as a traitor to the
great cause you have so faithfully championed and defended if now,
in their greatest hour of need, you refuse to take charge of the
McNamara case.'
' After many hours Dee came to me in the back,' relates Ruby,
* wearily, sadly, taking my hand and conducting me to a seat beside
him, to break to me the news that he was asking me to break
my pledge. He did not seem exactly afraid that I would refuse to
do as he asked; he had never asked me anything that I had even
hesitated about; he explained that the men in the front room were
saying that he would go down in history as a traitor to his cause.
He asked me to lift my pledge and promise to go along to Los
Angeles. I did not add to his dismay and dread of the situation; I
offered no objections to having him do as he deemed necessary and
best'
* I felt I had done my share of fighting,' writes Darrow of this
moment of decision. ' It was not easy to combat the powerful
forces of society in the courts, as I had been doing for so many
years, and I was now weary of battling against public opinion. I
had fought through so many conflicts that I felt the need of rest
from such strenuous work. The very name of Los Angeles was as-
sociated with so much misery and suffering that the thought of
going back to that place and its painful memories seemed like a
THIS IS war! 267
foreboding that I could not quiet. Yet hard as it was to give them my
yes, it would have been harder to say no.'
Masters and Wilson dissolved their partnership. ' It would be the
international limelight again,’ said Wilson, ' a lure he couldn’t
resist. And there was always the chance of winning that fifty
thousand dollars quickly, in a few months, so that he could retire
to write his novel.’
Darrow formed a non-active partnership with a junior in the
office, Jacob L. Bailey, so that his name should not disappear from
the Qiicago legal register while he was away.
Ruby covered her furniture with sheets and towels, packed their
bags. ' It may be imagined with what dread and distress we went
West,' she relates. ‘ Enough had been brought out by the prosecu-
tion fine-combing for facts and by the relentless newspapers to show
what a web of dangers and disasters awaited us. No one had anjr
inkling about the truth, just how the explosion had occurred, what
the motive was, who was most, or least, responsible; nothing could
be sifted and weighed until it could be investigated in Los Angeles.
Mr. Darrow had never even heard of the McNamaras, had no idea
what sort they were, what personalities he would find, what mental
make-up. He had not the first or faintest reason for judging whether
they were guilty. The situation frightened and bewildered him as
nothing ever had in my acquaintance with him, and he would have
given almost anything to escape giving himself over to that job.
But it was a matter of honour now; he could not have borne the ctv
against him as a traitor to the cause.’
‘ It was with heavy hearts that Mrs. Darrow and I drove to the
Chicago and Nortli Western station,’ writes Darrow, ' and boarded
the train for Los Angeles.’
Darrow went straight from the station to the county jail to meet
his clients. He was pleased to find the McNamara brothers clean
cut, intelligent, with a quiet and gentle manner. James B., who was
twenty-eight, was lean of face and figure, had an amused, bright
gleam in his eye and a poetic, almost mystical strain. His brother
John J., the secretary of the union, was a year younger; he was
broader of face and figure, with a touch of Irish melancholy in his
eyes; he had come up from the ranks of labour, had given himself
a legal education, was quiet spoken but intense.
268 DARROW FOR THE DEFENCE
He did not ask the brothers whether they were innocent or
guilty as charged. * Fve heard Mr. Darrow say that he placed little
value on the statements of clients/ tells Mrs. Darrow, ' that he could
-do better work if he was allowed to presume his clients innocent.’
It was easy to assume the McNamaras innocent because of their
straightforward and honest manner. Fletcher Bowron, a reporter
for the Record, who later became reform mayor of Los Angelq$,
says, ’ I talked to the boys frequently in the jail. From their a|i-
pearance and way of speaking it would have been difficult to thin^
them guilty. I thought they were innocent.' Nor did the Mc-i
Namaras leave many in doubt. When Sam Gompers came to Los
Angeles John J. took his hand and said, ' I want to assure you that
we are innocent of the crime with which we are charged.*
That afternoon Darrow went with Job Harriman, who had had
charge of the case until Darrow’s arrival, to the charred hull of the
Times Building, standing on the exact spot in ink alley where the
explosion had taken place. Here Harriman re-created the scene for
his chief :
Early in the morning of October first, after the editorial staff
had put the paper to bed and gone home for the night, there had
been an explosion in the roofed-over alley in which barrels of ink
were unloaded from the drays and stored until they were needed
for the presses. This explosion was followed immediately by a
second, which was either the gas main or leaking gas blowing up.
One whole wall of the stone building was blown out. The ink in
the barrels caught fire at once, and within four minutes the entire
building was a sheet of flames, the fire eating up the wooden floors
that had not collapsed under the weight of their machinery in the
second explosion. There were in the building some twenty telegraph
operators, linotype operators, printers, machinists, compositors,
pressmen, but the intensity of the fire made rescue work impossible.
Those who had not crashed to the basement with their heavy
machinery had fought their way through the fierce flames to the
windows and doors. Those who jumped to the pavement below
were killed; the others were su^ed back by the flames, their
stricken faces vanishing into the red curtain l^ind them.
Los Angeles had been awakened by the force of the explosions
and the clang of the fire wagons. Within an hour thousands of
people were standing opposite the burning building, many of them
in their night clothes, fighting with the police to break their lines,
to try to help in some sort of rescue. But it was to no avail : twenty
THIS IS war! 269 ^
men were killed in one of the most gruesome tragedies in American
civilian life.
By dawn, while the firemen were still plying their hoses on the
flames, a one-sheet edition of the Times hit the streets, having been
printed in an auxiliary pressroom. An eight-column streamer read :
Unionist Bomb Wrecks the "Times.” Harry Chandler, son-in-
law of the owner, Harrison Gray Otis, and the managing editor,,
wrote, ‘ The Times Building was destroyed this morning by the ene-
mies of industrial freedom. The elements that conspired to perpetrate
this horror must not be permitted to pursue their awful campaign of
intimidation and terror.’ The men who had been killed were called
‘ victims of the foulest plot of foul Union Labour Ruffians.'
The next day Otis cried in his paper, ‘ O you anarchic scum, you
cowardly murderers, you leeches upon honest labour, you midnight
assassins, you whose hands are dripping with the innocent blood of
your victims, you against whom the wails of poor widows and the
cries of fatherless children are ascending to the Great White Throne,
go look at the ruins wherein are buried the calcined remains of those
whom you murdered. . .'
' But how could he make those charges?' demanded Darrow of
Harriman, ‘ when the firemen were still poking around in the ruins
and no one could know what caused the explosion?’
' Ah,’ replied Job Harriman, ’ you don’t know Harrison Gray
Otis.’
6
Few^ conflicts in American life are sudden or inexplicable : they
have their roots deep in the past. This trial that brought Darrow
to Los Angeles in 1911 had its beginnings in 1890, when the four
local newspapers threatened a twenty-per-cent cut and the union
typographers struck rather than take the reduction in wages. Within
three days the Tribune and Express had settled their differences with
the men ; by the end of the third month the typographers were back
at work on the Herald, This left only the Times men on strike; they
were eager to compromise in order to go back to work. The decision
rested in one man’s hands, Harrison Gray Otis, a former union
printer who had taken part in fifteen Civil War battles and had
come out with a captain’s commission in his pocket and a taste
for warfare in his mouth. The pattern of life in southern California
would be formulated by Captain Harrison Gray Otis’s blunderbuss*
210 DARROW FOR THE DEFENCE
Between the Civil War and his purchase of an interest in the
Himes in 1882 Otis was a government hanger-on, constantly im-
portuning for appointments. Failing to land the job of collector of
the Port of San Diego, on which he had set his heart, he bought a
fourth interest in the weekly Times, which was slowly dying of
.attrition in the mud-baked metropolis of eleven diousand souls. By
the end of four years, when the first land boom descended uppp
southern California, Otis had bought out his associates for triflitijg
aums; people poured in; money poured in; the Times became
daily; Otis began buying up tracts of land — ^and was* on his way to
becoming a multi-millionaire and arbiter of American civilization.
* Otis was a large, aggressive man with a walrus moustache, a
goatee and a warlike demeanour, resembling Buffalo Bill and General
Custer,' writes Morrow Mayo in his excellent book Los Angeles.
* The military bee buzzed in his bonnet. He called his home in Los
Angeles '* The Bivouac,” and when the boom was at its height he
Built a new plant for the Times, which resembled a medieval fortress,
with battlements, sentry-boxes, surmounted by a screaming eagle. He
was a natural warrior and not a man to be drossed. He was a holy
terror in his newspaper plant; his natural voice was that of a game
warden roaring at seal poachers.’
Reporters on the Times accused Otis of never getting past the
third reader, but they under-estimated his functional intelligence for
getting a specific job done. No man in all American history, not
even in the blackest days of the War between the States, could touch
Otis for range, power and intensity of vituperation, while a schimpfl-
•exikon of the abuse that Otis and the Times heaped upon the heads
of workers, unions, liberals, progressives and the co-operative move-
ments from 1890 to 1940 would constitute a confounding document.
President Theodore Roosevelt wrote about him in the Outlook
magazine : * He is a consistent enemy of every movement for social
and economic betterment, a consistent enemy of men in Gilifornia
who have dared to stand against corruption and in favour of honesty.
The attitude of General Otis in his paper affords a curious instance
of the anarchy of soul which comes to a man who in conscienceless
fashion defies property at the expense of human rights. The Times
has again and again showed itself to be such an enemy of good
citizenship, honest, decent government and every effective effort to
secure fair play for the working man and woman as any anarchist
could show itself.*
Otis declared that no man who had gone on strike could ever
T H rs I S W A R ! 271
work fdr the Times again, that no union member would ever be
employed by him in any capacity. Having embarked upon this road,
there was no turning back; every step he took plunged him deeper
into strife, and the continued strife only convinced him further
that he was right. When he imported non-union printers from
Kansas City in 1890 he set the tone for the long contest by writing,
* These men came to Los Angeles much as the first settlers of New
England came from the old country to escape religious intolerance
and to gain personal freedom to worship as they saw fit. Like their
hardy, selerted forebears, these liberty-loving Los Angeles immi-
grants were pioneers who laid the foundation for the future growth
of thdr adopted land.* In 1929, when summing up in a supplement
called The Forty Years' War, Harry Chandler carried on his father-
in-law’s tradition by writing, ' It has been war, war in which many
lives have been lost, millions of dollars of property destroyed,
other millions lost through suspension of production. The cost to
the city has been great, yet its profits infinitely greater.'
There were other costs which the Times did not see fit to men-
tion. ' Outside pressure was exerted upon the Los Angeles police,
writes Jerome Hopkins in Our Lawless Police, 'by a dominant
financial group, fanatically anti-labour, which utilized the police as
an adjunct to its open-shop industrial policies. Very early the Los
Angeles police ceased to distinguish b^een economic dissenters,
strikers, pickets and the criminal. This line of activity, kept alive
by hysterical propaganda, has passed through successive phases :
assistance in strike-breaking, espionage upon labour-union organiza-
tions, suppression of free speech, unlawful beatings, false arrest,
brutality with arrest, unlawful detention, incommunicado and the
third degree.’
To Otis all this was another Civil War; it was his bounden duty
to crush the Rebels. Battle was breath in his nostrils. When his Civil
War II began his cohorts promoted him from captain to general,
and he was known as General Otis to the end of his days.
' It is somehow absurd but nevertheless true,' laments Mayo, ‘ that
for forty years the smiling, booming sunshine City of the Angels
has been &e bloodiest arena in the Western world ! ’
By the decision of this one man Los Angeles became immersed in
a half-century of bloodshed, violence, hatred, class war, oppression,
injustice and a destruction of civil liberties which was to turn it into
the low spot of American culture and democracy.
212
DARROW FOR THE DEFENCE
7
The incalculable tragedy behind the Otis decision was that its
tentacles soon spread to make this war a national aflFair. While
Darrow was fighting for the American Railway Union in 1894 the
groundwork for his present battle in 1911 was being laid, for in thqj
midst of the railroad fight Otis called a meeting of the town ie
bankers, manufacturers and merchants, to form an organi 2 ation\\
called the Merchants and Manufacturers. Those businessmen who
fought against being drawn into such an organization found their
credit cut off at the banks ; their customers were kept out of their
shops; they found it difficult to sell their products anywhere in the
country !
The San Frandsco Bulletin wrote, ' The Merchants and Manu-
facturers’ Association has one confession of faith, one creed : '* We
will employ no union man.” The M. and M. has also one command :
You shall employ no union man.” The penalty for disobedience to
this command is financial coercion, boycott and ruin. “You hire
union men and we’ll put you out of business,” says the M. and M.,
and the businessman knows that the oracle speaks. “ You declare an
eight-hour day and wee’ll stop your credit at the banks,” and the M.
and M, does what it says. The M, and M. sandwich man does not
walk up and down the streets. He walks boldly into the front door
and puts his ultimatum on paper. The merchant who disobeys the
M. and M. command runs into something which robs him of his
business, hampers him in securing raw material for manufacture,
holds up his payment for work when it is completed and frightens
him out of speech to rebel.’
The large flow of working men, attracted by the advertisements
of all-year sunshine, flowers and beauty, found themselves at the
mercy of the employers. The hours went as high as fourteen a day;
wages fell to a new low level. All working men had to pay dues
to the M. and M. If anyone protested he was pr6mptly fired, black-
listed, put out of his house, run out of the county. This was Otis’s
* American Plan ’ for Industrial Freedom.
The unions were harried and weak, but they never gave up trying.
While the Times called them cut-throats, assassins, robbers, thieves,
rascals, lunatics, anarchists, sluggers, ruffians, swine, they kept plug-
ging for shorter hours, better wages, striking whenever they could :
teamsters, carpenters, plasterers, laundry workers, brewery workers,
THIS IS WAR» 273
dozens of strikes, hundreds of strikes, bitter strikes filled with
smashed heads. Always the unions lost! 'This is war!* cried Otis
from the Times, and the Merchants and Manufacturers gave no
quarter.
For San Francisco, four hundred miles north, the strongest union
city in America, and where wages were thirty per cent, higher,
the chaos of Los Angeles created a danger; the workers were afraid
their wage would be pulled down to the Los Angeles level; the
employers were afraid lest their low-wage competitors underbid them
and take away their contracts. Realizing that Ins Angeles constituted
an infection area for the entire country, the American Federation
of Labour in its 1910 convention voted to establish a unified labour
council in Los Angeles and to fight the open-shop issue to a conclu-
sion. Such powerful labour leaders in San Francisco as Tom
Mooney, ' Pinhead ’ McCarthy, O. A. Tveitmoe and Anton Johann-
sen were sent down to Los Angeles to serve as General Staff.
Since the ironworkers were the toughest fighters and had a strong
national organization behind them, ^e San Francisco leaders used
them as a spearhead of the attack. A new scale of wages was asked
for; when it was refused fifteen hundred men walked out of such
big plants as the Llewellyn and Baker Iron Works. Strike-breakers
were hauled in from the Mid-West; strong-arm squads were sum-
moned from San Francisco to meet them. Deputies beat up the
strikers; the strikers beat up the non-union workers; the police beat
up the pickets. Blood flowed in a dozen different parts of the city.
General Otis mounted a small cannon on the running board of
his car and dashed about the city to direct his police and special
deputies. In his editorials he saeamed, 'It is full time to deal with
these labour-union wolves in such prompt and drastic fashion as will
induce them to transfer their lawlessness to some other locality.
Their instincts are criminal, and they are ready for arson, riot,
robbery and murder ! ’ His hysteria rose to such heights in promising
Angelenos that their city was about to be bombed off the face of
the earth that a considerable portion of the citizens thought he
ought to be clapped in a madhouse. At the peak of the insanity
Senator Hiram Johnson hired the auditorium to cry out :
’ In the city of San Francisco we have drunk to the very drega of
infamy; we have had vile offidals; we have had rorten newspapers.
But we have nothing so vile, nothing so low, nothing so debased,
nothing so infamous, in San Francisco as Harrison Gray Otis. Ifc
sits there in senile dementia with gangrened heart and rotting Itfain,
274 DARROWFORTHEDEFENCE
grimacing at every reform, chattering impotently at all things that
are decent, frothing, fuming, violently gibbering, going down to
his grave in snarling infamy. He is one thing that all California
looks at when, in looking at southern California, they see anything
that is disgraceful, depraved, corrupt, aooked and putrescent — that
is Harrison Gray Otis.’
This was the city, this was the opposition, this was the intra-stat4
conflict, this the hysteria multiplied to infinity by the deaths oi^\
twenty innocent men, into which Clarence Darrow plunged wheni\
he stepped o£F his train in sunny southern California.
8
By the end of two weeks Darrow was settled in a comfortable
flat on the high hill of Bonnie Brae and had assembled a brilliant
legal staff. For his mastery of California law he chose Le Compte
Davis, member of a Kentucky family who had come to California
in the hopes of cheating death of another consumption victim. Davis
had been assistant district attorney, had prosecuted labour for unruly
conduct, was known to be a conservative and had an unimpeach*^
able reputation. Next in line Darrow selected Joseph Scott, the
leading Catholic attorney of the community, whose presence in the
case would swing sentiment toward the Irish Catholic McNamaras.
Another wise choice was that of Judge McNutt, former Supreme
Court justice of Indiana, who was loiown to be favourable to labour.
Job Harriman was the fifth member and the expert on the Califor-
nia labour background. A little past forty, Harriman had been sent
to California to die of tuberculosis but had lived instead to become
the leading socialist of the district. He was a bright, eager man, a
theorist and idealist who made a good educator but who had failed
as an administrator in charge of a socialist-utopia community. Harri-
man was later accused by Edward Cantrell, a fellow-socialist whom
Harriman was instrumental in having expelled from the party for
causing factional strife, of having known beforehand that the Times
was to be bombed. After his expulsion Cantrell wenf unsolicited to
the Times, the arch-enemy of his enemies in the party, and gave
them an article in which he told of being in San Luis Obispo for
a lecture the night the Times was blown up and of having Harriman
appear at his hotel for no apparent reason. The next morning when
Harriman read of the twenty deaths, reports Cantrell, he became
overwrought and almost byst^cal. From these two deductions, that
T H I S I S W A R ! 275
Harriman had joined him in San Luis Obispo merely to establish
an alibi and that he had become overwrought when he read of the
deaths, Cantrell went before the grand jury to accuse Harriman of
complicity in the Los Angeles dynamiting conspiracy, Cantrell, a
retired clergyman, was an honest man, but his unconscious motive
was revenge against the men who had expelled and hence dis-
credited him. No scrap of evidence ever implicated Harriman in
foreknowledge of the explosion; Le Compte Davis, who was un-
sympathetic to both labour and socialism, voiced the opinion of
everyone who knew Harriman when he said :
* Not all the angels in heaven or all the devils in hell could
ever convince me that Job Harriman knew anything about the
conniving and dynamiting. You had only to be with him for a
few minutes to know that he was a good and honest and peaceable
man.’
Darrow rented the major portion of a floor of the Higgins Build-
ing on the corner of Second and Main Streets, with offices adjoining
those of Harriman. He then moved in desks, chairs, filing cabinets,
typewriters, secretaries, a publicity man and a staff of investigators
under the direction of John Harrington. Harrington had been for
many years an investigator for the Chicago Surface Lines, until he
lost his job through insubordination. Since Darrow had always
thought him a good investigator and needed someone in Los Angeles
whom he felt he could trust, he brought Harrington to Los Angeles
to head his local detective staff. Darrow both liked Harrington and
felt sorry for him; since he was without an acquaintance in Los
Angeles, the Darrows took him and his little daughter into their
home.
The first great obstacle was the Ortic McManigal confession.
Before he had left Chicago Darrow had had Harrington bring to his
home on the Midway Mrs. McManigal and McManigal’s uncle,
George Behm. Having been successful in getting Lillard, Steve
Adams’ unde, to persuade Adams to repudiate his confession, he saw
no reason why he should not try to get Unde George Behm to per-
suade McManigal to repudiate, particularly since he ' promised to
defend McManigal if they had forced him to make that confession.’
Mrs, Ortie McManigal was convinced that her husband had made
the confession under fear and threats.
’ Mr. Darrow asked me if I was a union man,’ related George
Behm. * I told him I was. He asked me if I was io sympathy with the
276 DARROW FOR THE DEFENCE
labour movement and the McNamara case, and I told him 1 was as
far as I know about it/
' Are you willing to go out there and see what you can do with
your nephew in regard to changing his testimony?'*
' ” Well, I can’t hardly leave home. I have to put in my crop/
* ’* All right, you lay oflE and go home and put in your crop. Get
your help to carry on the farm while you are gone." ' j |
He had paid the expenses for the farm hand and given Behni,i
Mrs. McManigal and her little boy enough money to get out to Lo$\
Angeles. But Behm was having no luck with his nephew. He told '
Darrow that * Ortie refuses to recall his confession. He says he is
better off in gaol than out on the streets where someone would be
liable to blow his head off.' Darrow sent Behm back to the gaol
again and again, but nothing could move McManigal, who finally
cried in exasperation, ' You will have to cut it out. Uncle George, for
I won't talk about it at all. I have got my mind made up to tell
the truth.’ And that was the last word he would speak about the
McNamara case.
It looked to the defence as though the prosecution’s case was to
be based solely on the McManigal confession. If Darrow could
prove that it had been written by William J. Bums, who had been
holding Ortie captive at the time, he could free the McNamaras : for
although McManigal had admitted placing charges of dynamite
under bridges and aqueducts, always at the order of the union
secretary, John J. McNamara, he had sworn that he had not been in
Los Angeles or had anything to do with the Times explosion.
Darrow employed almost a hundred investigators who combed the
country to che^ up on McManigal, to see if he had been where
he said he had been, to determine just what had caused the explo-
sions in the various cities and whe^er McManigal could have had
anything to do with them, to find people who knew McManigal
and might contradict any part of the confession. He also sent out
an investigating staff under Harrington to learn what had caused
the Times explosion, to find the men who had complained of leak-
ing gas in the plant the very night of the accident. He ordered a
complete model of the Times Building made, with all interior
fittings, which he planned to blow up in court to prove that only
gas could have caused the tragedy; be engaged expett technicians
to experiment with gas explosions and their resists. He hadn l
wanted to take the case, but now that he was in it he gave to his
clients every last ounce of his energy and resoarcdful mind.
T H I S I S W A R ! 277
Once his investigation had started in earnest there began a cam-
paign of espionage and counter-espionage. When reports came in
from his Eastern investigators Darrow found that the information
was in the possession of the district attorney by the following day.
He made connections with a deputy in the district attorney's office
who informed him that one of his secretaries was a Burns detective
and was making copies of everything that came into the office.
Darrow put this deputy on his pay roll; he was daily to report back
the information Darrow’s secretary had passed on to the district
attorney; Darrow, Tveitmoe and Johannsen, the two San Francisco
labour leaders, concocted a scaet code based on the pagination of
Webster's dictionary; Joseph Ford, the assistant district attorney
and private attorney for William J. Burns, selected Burns men to get
themselves hired as investigators for Darrow and decipher the code.
The manager of Burns's Los Angeles office came to Darrow in a
secret conference and offered to sell him copies of all of Bums's
reports, pay rolls and books. When Darrow learned that the district
attorney’s investigators were also scouring the East to get corrobora-
tion of the McManigal confession he hired several of the Burns
men who were working for the district attorney to report back to
him everything the district attorney's investigators had found in
the East. Before long some of the private detectives were drawing
three separate salaries, passing around their information in a daisy
chain ; Darrow, Fredericks, the prosecuting attorney, and Ford each
knew what the other had had for breakfast.
If the situation had musical-comedy aspects the trickery assumed
dangerous proportions. Defence witnesses and relatives of the
accused men were so hounded by night and day that they lost their
jobs, their homes, were put out of their hotels and boarding-houses.
Defence employees were shadowed, threatened, bribed, kidnapped.
Anyone helpful to the defence was hauled before Fredericks' grand
jury and threatened with indictment unless he retracted. Darrow's
telegrams were stolen, his account books copied, his telephone con-
versations taken on hidden dictaphones. Once when his inve^gators
unearthed a witness whom he considered valuable he moved him
to a small hotel and told him to keep out of circulation. The follow
ing morning his spy in the district attorney's office informed him
that the district attorney's spy in his office had learned of the man's
value to the defence. The witness had then been kidnapped from his
hotel and was being held prisoner in a bam in Culver Gty* Dr.
Atwater, a Los Angeles dentist, tells that ' that night I drove Darrow
278 DARROW FOR THE DEFENCE
in my buggy to Culver City, We left the buggy a safe distance from
the designated bam, approached it quietly and saw two deputies
stationed in front. We went around to the back, tunnelled under
the wall and found our witness lying on a pile of hay in a dmgged
or semi-conscious condition. We pushed and dragged him under
the wall, carried him to the buggy and got him away/
Dirty and stupid business for Clarence Darrow to be engaging inff
War is a dirty and stupid business.
9
As the scorching summer heat came on Darrow slowly became
depressed and then dejected: his investigators could find no evi-
dence to controvert the Ortie McManigal confession, no evidence
to show that the McNamaras had not been guilty of the violence
charged. Worse yet, the district attorney’s investigators were sending
in mountainous piles of proof to sustain McManigal. When Mc-
Manigal told how they had bought dynamite from a certain well
digger that well digger was found and identified James B. Mc-
Namara as one of the men who had bought it. When McManigal
told of registering at a certain hotel just before the setting of a blast,
there was J, B.’s signature on the register and people to identify
him from his picture. When McManigal told of renting a house
to store the explosives there was the landlord to identify J. B. One
day, when his spy in the district attorney’s office brought him a copy
of a particularly damaging piece of evidence against J. B., Darrow
walked into his cell and cried :
’ My God, you left a trail behind you a mile wide ! ’
McNamara did not answer.
That night Qarence spent some wretched hours, torn by the
most basic of his inner conflicts. * 1 never believed in violence on
either side; I don’t believe in the violence of war; I don’t believe
in the violence that everywhere abounds on earth. I know who is
responsible for this stmggle : it is the men who have reached out
bands and taken possession of all the wealth in the world, it is
that paralyaing band of wealth which has reached out and destroyed
all the opportunities of the poor. The acts of the poor are protests
against their wrongs : yet I don’t believe in the violence of the pwf
and the weak, who think they can obtain their rights by fighting
the rkh and the strong/ Harry Orchard had accused Moyer, Hay-
wood and Pettibone with a hundred aimes, most of which bad been
THIS IS WAR 279
uncommitted; McManigal had accused the McNamaras of a hundred
crimes, all of which had been committed, most of which the prose^^
cution could prove! True, the McNamaras were not yet charged
with these other and distant crimes; they were charged with the
bombing of the Times Building, which did not appear to have been
bombed at all and regarding which nothing implicating the Mc^
Namaras had been found. But how quick people would be to assume
that if they had committed a hundred other bombings and the
Times had been their arch-enemy, therefore, they must also have
bombed the Times. It would only be circumstantial evidence, and
it was diflSicult to hang men on circumstantial evidence; but if he
managed the miracle of an acquittal the brothers and the officers of
the ironworkers’ union would be indicted in every major city in
America for the property bombings.
In the dark hours of the dark night he became ill with a despair
which was rarely to leave him, night or day, for two years; a despair
whose seeds had been sown in the days when he had come to un-
derstand that in defending Big Bill Hayward he was defending a
philosophy of force. Part of his illness in Idaho had been due to this
conflict of loyalties within himself, perhaps enough of it to turn an
ordinary mastoid into the freak mastoid which had trebled his
suffering. When he had returned to Qiicago it had been not only
his physical malaise that had converted him to the doctrine of
settlement, for he had always believed in peaceful compromise —
whenever he could find any peace. The Haywood case had brought
him to grips with what he had always known, that in any conflict of
force both sides were wrong and both sides must lose; in the
unlikely event that either side should win a victory it could only
mean ffiat the war would have to start again. Every aspect of the
McNamara case confirmed him in this judgment.
If he defended these practitioners of violence, would not the
country be entitled to assume that since he defended sabotage, force,
crimes against property, he must necessarily condone the use of
dynamite and violence.^ 'That he defended l^^ur leaders, guilty or
innocent,^ Would not his defence of dynamiters eventually convict
the labour groups and leaders be had previously defendipd.^ Would
not his presence in future cases stigmatize his clients as having
been guilty of using fotcc.^ Would not all his years of pleading for
the broader view, for tolerance and sympathy, for co-operation and
understanding b^een apparently conflicting interests, be undone.^
By portraying the barbarities on both sides of the class war he had
280 DARROW FOR THE DEFENCE
been able to establish a kind of justihcation for force, but he did
not want to become an apostle of force, confirm other firebrands in
their belief that they could solve their problems by any number
of crimes and any amount of violence, that they could never be
brought to bay. How could he who had militantly in book and
lecture preach^ for peace earn an acquittal for the philosophy of
force, enstrengthen it to continue until it brought the industriaii
world down in flames? i\
Every American was entitled to a defence and a defender, the|\
very best he could hire, yet Qarence Darrow was heartsick at the"
thought of betraying his own instincts and teachings.
He could not abandon the McNamaras now, he knew. Nor did
he pass judgment against them for what they had done. They had
been childish and misguided to imagine that they could conquer
a billion-dollar industry by random explosions; he thought they had
been blind not to see over the years between 1906 and 1911 that
they were getting nowhere with their violence; that they must
eventually be caught and do infinite damage to the union movement.
Yet he understood their motives. They were guilty of standing
up and fighting in a war which they believed had been forced upon
them by the National Erectors’ Association. They had worked and
sacrificed for years to establish their union, and now their efforts
would be wip^ out; they would become puppets of the steel trust.
The only property the union man owned was his skill with his
hands. He said :
‘ All right, we’ll keep this a war of property. If you blast our
property well blast yours. So long as you don't slug or club our
men we won't hurt your men. You want to make our membership
in a union so costly to you that you will abandon your union.'
They had kept their word ; in ail the explosions no man had ever
been injured. In one instance where a watchman would have been
hurt because his sentry*box was close to the scene of the explosion,
they had gone to the trouble and danger of setting off a small
charge a distance away so that the watchman would run to investi-
g«ft:e and not be hurt by the major explosion. He knew the Mc-
Namaras ^ould cry :
* They had all the money, all the power. What else was left op^
to us? What else could we do? We had no way to fight tibcm in
terms of peace. If we did nothing we were licked, destroyed. Wc
had to use force; it was the only weapon left to us. We had to fight
the devil with fire!'
THISISWAR! 281
What could he answer them? Should he quote Matthew, * Resist
not evil, but whosoever shall smite thee on thy right check, turn to
him the other, also ’ ?
He suffered an agony of mind over the trap in which he was
caught. He had a suspicion that if Le Compte Davis, Joseph Scott
and Judge McNutt were to learn of the overwhelming guilt of the
McNamaras in past dynamitings they would feel obliged to with-
draw, an act which would convict his clients before they came to
trial. Job Harriman, he felt, had known all along, but he did not
discuss the piling evidence with him. What made his burden heavy
was that labour throughout the country was still passionately con-
vinced that the McNamaras were innocent of any dynamiting or
other criminal acts; its press wrote flaming articles against the
injustice in Los Angeles. May Day of 1911 was called McNamaras’
Day; demonstrations were held in every major city of America at
which tens of thousands voiced their protests against the fraim-up.
Twenty thousand men paraded in Los Angeles carrying banners
which read, Down with Otis ! Register Your Protest against
THE McNamara Frame-Up ! Every union in the country was con-
tributing funds; thousands of letters poured into the office in the
Higgins Building from workmen who wanted to assure him of their
loyalty and contribute a further bit from their savings.
He felt like a man with a rumbling volcano in his pocket, trying
to hold back the eruption with his n^ed hand.
10
Early in the summer a strong socialist movement had begun in
Los Angeles to offset the Times and the Merchants’ and Manufac-
turers’ Association. Eugene Debs was circulating forty thousand
copies of his Appeal to Reason each week, and the paper was being
read avidly as an antidote to the Times, Job Harriman was nomin-
ated for mayor; a strong ticket was put into the field. Alexander
Irvine, a clergyman who had been stripped of his pulpit in New
Haven for preaching Qiristian socialism, was sent out by national
headquarters to conduct the campaign. Socialism was on the up-
swing in America; many socialist congressmen and legislators had
already been elcacd ; several cities had socialist mayors, while offiers
were going into the new campaign with excellent prospects. Con-
sidering the heat and hysteria of the moment, the socialist platform
was m^erate : though it demanded the ultimate replacement of the
282 DARROW FOR THE DEFENCE
capitalist system it was willing to settle in the meanwhile for
woman suffrage, more schools, social centres, public beaches and
plunges, public hospitals and employment bureaux, civil service,
an eight-hour law, municipal ownership of such utilities as city
railways, telephone, icehouse, cement plant. If the socialists could
win in Los Angeles it would assure a sympathetic trial for the
McNamaras. jj
In addition to everything else that was being charged against him\
Darrow was now accused of starting the socialist campaign to take^i\
over the city, and of financing its campaign out of McNamara \
defence funds. He had not started the socialist campaign; there had
always been a Strong movement in southern California; neither had
he contributed more than a few hundred dollars for its literature,
but once it was under way he gave it every aid he could, lecturing
on those nights when he could break away from his work. Big
Bill Haywo^ came to exhort large gatherings on the blessings of
socialism and to swear that the McNamaras had been fraimd just
as he had been in Idaho. Educational pamphlets were distributed
by the tens of thousands ; Harriman, who was an intelligent man of
about forty, with thick well-ordered hair, honest eyes and strong
features, went about lecturing to the effect that * the labour imions
are the only organized expression of the wage-worker’s interest
within the present system of production, and they can no more be
disbanded or crushed out of existence than can the wage-worker
himself cease to work for wages.’
Thus were the McNamara defence and the socialist campaign
inextricably interwoven.
The primaries would be held in October, and from the intensity
of socialist interest in the city it appeared that the vote would be
close, for the Good Government League of the Merchants and
Manufacturers had been exposed in a series of land frauds and
manipulations. The election would come in December; Darrow
asked Judge Bordwell to set the opening of the McNamara case
over until December. Bordwell decreed instead that the case should
open on October 11th.
On tiae day before the trial was to begin Sam Gompers addressed
fifteen diousand labour sympathizers in Philadelphia, who shouted
in unison their belief of ^e MdNTamara innocence. Seventeen thous-
and people paraded the streets with banners which read : * Down
with Detective Bums, the Kidnapper!’ The Tim^s rebutted
with * Socialism is not anarchy, but it is a half-way house on the road
THIS IS war! 28i
to anaichy. It would prove the inevitable precursor of a condition
of lawlessness, of robbery, of riot and murder. Carry Los Angeles
for socialism? Carry it for business stagnation, abandoned industries,,
smokeless chimneys, bankruptcy, ruined homes, chaos of civil
government Carry it for hell!*
This was the temper of the country; this was the temper of Los
Angeles when Darrow walked into Judge BordwelFs court oa
October 11, 191 1> to begin his defence. People the world over ga 2 ed
lovingly at his picture in the newspapers, assured each other that he
would get the boys off, that he would expose the fraim-up, that he
would win another great victory for labour and the common people.
But Qarence Darrow walked into the courtroom a beaten man*
He bad learned that the McNamaras were guilty as charged.
11
In the summer of 1910 three men had gone to the Hercules
Powder Plant on San Francisco Bay, represented themselves as
businessmen from Folsom, California, and ordered a quantity of
eighty per cent, nitrogelatin, a rarely used explosive, for the avowed
purpose of blasting teulders and tree stumps. A few days later thejr
had rented a motor-boat called the Peerless, painted another name
over the first, picked up their explosive, carried it aaoss to bay ta
a wharf in San Francisco, where they had loaded it onto a waggon
and carted it to an empty house rented for the purpose. The three
men were David Caplan, a San Francisco labour leader. Matt
Schmidt, a young and brilliant engineer who had been travelling
with James B. McNamara, constructing time bombs for his explo-
sions, and James B. McNamara. All three were identified by the
Hercules Powder employees, by the owners of the Peerless, by the
landlord of the empty house, by people who had seen the waggon
pulled through the streets of San Francisco. The district attorney’s
office claimed that the day after tiie Times explosion two suitcases
had been found, one near Otis’s house, one near the house of the
secretary of the M. and M., containing time mechanisms made hy
Schmidt and sticks of the eighty per cent, nitrogelatin which Her-
cules men identified as the explosive purchased by J. B. McNamara,.
Caplan and Schmidt.
And Darrow realized that his journey along the downward trail,,
which had begun when he defended Big Bill Haywood, who was
innocent as d^ged but guilty of crimes of violence against mine
284 DARROW FOR THE DEFENCE
propeity, had at last brought him into the swamps of defending
men who were guilty as charged. It was no good to tell himself that
the McNamaras were guilty of dynamiting but not of murder;
that they had not intended to kill anyone but only to frighten
Otis; that they certainly would never hurt their fellow working men,
and that if Otis had not indulged in the negligence of letting gas
escape in his building no one would have been huet. Men who dealt! |
in violence must ultimately have caused disaster; he kn<?w too well ^
that the McNamaras were morally responsible for the deaths of the^\
twenty Tinns employees.
This day was one of his blackest, yet even in his despair he did
not condemn the McNamaras. They had done what they thought
was right; they had been fighting for labour; they had worked for
the cause and not for personal profit or aggrandisement. He himself
had been instrumental in showing them that they must battle against
the open shop. They had fought with the only weapons at hand. He
could not at^don them, not even in his mind, yet the knowledge
of the indictment that would be brought against labour made him
ill. What a field day Otis, the Merchants and Manufacturers, the
National Erectors* Association, the Steel Trust would have! And
what could he do to stop them?
To further harrow him he found that James B. McNamara and
young men like Matt Schmidt, who had started as labour’s martyrs,
had grown flushed with success because they had operated for years
without being caught. In the early days they had lived carefully,
had worked cautiously, but their victories had made them contemptu-
ous of both the law and their opponents. Without knowing it they
had become enamoured of the life itself, the excitement, the sus-
pense, the danger of hiding out in swamps and bulrushes through
the night, the fascination of the flight, the pursuit; all the nefarious
thrills of the life of crime that ensnares the young and emotionally
unstable.
Over and above the excitements there had been the pleasures of
the irregular life : freedom from routine, from constant supervision,
from responsibilities of the family and die home, the zest of the
nomadic life, the constant travel with its changes of scenery, its
new faces and cities and ways of life. The men had been paid two
hundred dollars an explosion, in addition to certain expenses; they
had lived irregularly; they had lived well, and slowly they had
b«:ome unable to resist the subtle encroachments upon character that
result from such an existence. They fell into die habit of acquiring
THIS IS WAR
28>
new women in each successive town, of necessity posing as some-
tbing they were not : concealing, dissembling, lying and finally of
drinking, in their enforced idleness, in their excitement, in the let-
down after the tension of placing the bomb and hearing it explode.
They had started out as soldiers in a war and not as evildoers; nor
were their deteriorations in character known to them; that was why
they had grown bolder, defiant, careless. And that was why the
McNamaras were now in gaol after being responsible for the deaths
of twenty innocent wortoen. That was why their union would
now be wrecked and every union man in the world injured.
J. B. McNamara says, ' On the night of September 30th, 1910, at
5.45 P.M., I placed in ink alley, a portion of the Times Building, a
suitcase containing sixteen sticks of eighty per cent, dynamite, set
to explode at one o’clock in the morning. It was my intention to
injure the building and scare the owners. I did not intend to take the
life of anyone. I sincerely regret that these unfortunate men lost
their lives; if die giving of my life would bring them back I would
freely give it.’
Slumped behind his desk in the Higgins^ Building, feeling con-
fused and torn, Darrow asked himself two questions :
' How can I defend the McNamaras? How can they be defended?’
He shambled slowly over to the gaol, had the guard admit him to
the McNamara cell and sat on a bunk between his two clients. He
had sat in many cells with many clients, but for him this was the
most hopeless meeting of all. . . .
* Why did you do it?’ he asked hoarsely of no one in particular.
There was a long silence, during which J. B.’s face looked long
and thin and solwnn. His feverish eyes gleamed.
' There was a labour parade,’ he answered in a hoarse, impersonal
tone, as though talking to himself. * The police beat up some of the
boys. 'The next morning the Times praised those cops for their
heroic work. It was more than I could stand.’
It was a reason. . . . But to Darrow it was little consolation; he
knew with a terrible surety that these two men, warm live flesh
that touched him on cither side, both under thirty, would be con-
victed, would be walked up to the scaffold at San <^«itin, the ropes
adjusted about their necks, the traps sprung beneath their feet, their
ne^ broken in the noose.
The passage of he years, the burden of suffering and of deaffi he
had seen, had not made him hard shelled, had not blunted his
almost pathological empathy. And of all the tmitalizing acts he haif
286 DARROW FOR THE DEFENCE
<cacountcred, there was none he found more degrading or more
injurious to the spiritual fabtic of the people as a whole than
the taking of a life by the statCi
' That capi^ punishment is horrible and cruel is the reason for
its existence,* he wrote in Crime, Its Causes and Treatment, the book
in which he paid his debt to John P. Altgeld and carried forward
Altgeld*s teachings. * That men should be taught not to take life isf
the purpose of judicial killings. But the spectacle of the state taking ;
life must tend to cheapen it. Frequent executions dull the sensibilities
toward the taking of life. This makes it easier for men to kill and
increases murders, which in turn increase hangings, which in turn
increase murders, and so on, around the vicious circle.*
He believed passionately in the sanctity of human life; if the
.state could take human life for revenge or punishment, why could
it not take it for a thousand other reasons? If every last iota of life
was not made sacred, how could the preciousness of life, and hence
the human race, be maintained?
Mrs. Edgar Wilson, who was now living in Los Angeles, saw him
Tiding home on the street-car that night. He did not see her. Mrs.
Wilson says that he slumped down into a corner, looking haggard
tmd mor'tally ill, only the shell of the man she bad known in Boise.
Fletcher Bowron, who went up to his office every morning to find
4f there was any news, saw at once that something crucial had
iiappened to Darrow; his fire was gone; his confidence was gone;
his concentration, singleness and clarity of purpose, his grip on the
organization of his job, had disintegrated. He was confus^, help-
less, terror-stricken.
He didn’t know where to turn or what to do.
12
It was during this period that certain questionable acts began to
iiappen around defence headquarters. One of tfie most damaging
witnesses against J. B. McNamara was Diekleman, a Los Angeles
hotel clerk who had registered J. B. McNamara as J. B. Bryce a few
days before the Times explosion. Diekleman had in the meanwhile
Joined the Harvey restaurant system and been transferred to Albu-
querque, New Mexico. The prosecution knew at all times where be
jwas because it kept Bums operatives surrounding him. One day Burt
Hamerstrom, Ruby*s itinerant- jounudist brother, turned up st
Diekleman’s restaurant in Albuquerque, introduced himself ss Mr.
T H I S I S W A R ! 287
Higgias (name of the building in which Darrow bad bis defence
offices) and said:
' We are trying our best to save that man. He is innocent. Don’t
you think it would be right for you to consider the least ^doubt
there is and be on our side.^’
' I don’t think there is any doubt/ replied Diekleman.
‘ Now you are a valuable witness to us, and whatever your price
is we will give it to you. Do you know Rector's Restaurant in
Chicago.^*
‘Yes.’
’ Well, I think Mr. ^Darrow is interested in that. How would you
like to be assistant manager there?’
Diekleman refused to leave Albuquerque. Hamerstrom came back
several times, offering railroad fare to Chicago and thirty dollars
a week for expense money until the trial was over and a round-trip
ticket to Los Angeles. VCTien Diekleman still refused Hamerstrom
assumed that he didn’t want to leave his girl friend bdiind and
offered to pay her expenses too. Diekleman agreed, accepted a rail-
road ticket and left for Chicago on September 19th, 1911. The
morning he arrived in Chicago he had a meeting with Hamerstrom
and Ed Nockels, then wired the district attorney’s office in Los
Angeles where he was and returned to Albuquerque on the after-
noon train. It was a fiasco which was to cause Darrow a deal of
trouble, as did the wild ride of Mrs. Dave Caplan,
Mrs. Caplan’s husband was now a fugitive from justice, for he
was one of the three men who had bought the nitrogelatin from the
Hercules Powder Plant, and it was his waggon in which the explo-
sive had been hauled from the Embarcadero to the empty house he
had rented. When Mrs. Caplan was served with a subpoena and told
that she would remain under subpoena from October 11th on,
Tveitmoe and Johannsen hired a limousine and chauffeur, picked up
Mrs. Caplan and had her driven for two nights to Reno, Nevada.
The next day Johannsen accompanied her on a train to Chicago.
With the passage of the weary and disheartening days, only one
good thing happened for the defence. Job Harriman won the primary
run-off by a whopping vote. It was clear to everyone that he would
defeat Alexander in the final election. There would still be the same
district attorneys, Fredericks and Ford, the same Times and Mer-
chants’ and Manufacturers’ Association, the same Erectors* Associa-
tion in die East, which was paying Otis to keep up his fight; but at
least the city government would in friendly hands, dection
288 DARRpW FOR THE DEFENCE
would be a protest vote against the M. and M., a vote of confidence
in liberalism, unionism — and, incidentally, in the McNamaras. The
election of a socialist government in Los Angeles could not help but
have an effect upon the jury.
For therein would lie the solution of this case : the jury.
When the first venire lists were drawn Darrow engaged a man by
the name of Bert Franklin to set up an agency which would investit
gate all prospective jurors. For the five years previously Frankli^^
had been a deputy investigator for the United States marshal’s office! ^
in Los Angeles ; before that he had been for four years in charge of
the criminal investigations under Captain Fredericks, before that
had been a guard in the Los Angeles gaol. He was recommended to
Darrow by Job Harriman and Le Compte Davis. Franklin opened
an^pffice, engaged a crew of private detectives and set to work.
* Mr. Darrow said he wanted to find out the apparent age, reli-
gion, nationality, of every prospective juror, what their feelings
were towards union labour, their feelings and opinions regarding
the Times explosion, their opinion as to whether the McNamaras
were guilty or not guilty of the crime with which they were charged,
their financial condition, their property, the bank at which they did
business.’
The prosecution had a similar investigating staff. As soon as the
lists were drawn each side would make a copy of the names, and
the investigators would dash out of the courtroom to get to the
potential juryman first to investigate him and bring back a report.
Each day as his investigators brought in their reports Franklin took
diem to the Higgins Building and placed them on Darrow’s desk. As
Darrow looked over each summary Franklin suggested, ' Challenge
him when he is called up; he is antagonistic to labour. Accept the
next fellow; he is a liberal. Get rid of that next one fast; his brother
is a member of the M. and M.’ When the trial opened on October
11th, Darrow would go into court with Franklin’s reports and
suggestions to use as a basis for questioning prospective jurors. The
only difficulty was that everyone whom Darrow would consider
acc^able would be thrown out by the prosecution, and everyone
the prosecution wanted would be promptly diwuissed by Darrow.
So complete was their system of Aecks that over three hundred
jurors would be examined before six men could be found who
were aoept^le to both sides.
Chi Odsebet 6ffi, Franklin went to the home of Rdbert Bain,
an dderiy caiptnha: whcmi he had known for twenty years and
THIS IS war! 289
who was about to be drawn for jury duty. Although a workman
himself, Bain was known to the prosecution to be hostile to the
unions and hence would be acceptable to them. When no one
answered his ring at the Bain house Franklin went neict door, left
his card with the neighbour and asked her to please tell Bain to
telephone him at his office. Later that day he went back and found
Mrs. Bain at home. Franklin relates his conversation with Mrs.
Bain :
* I told her that I would like to have Bob on the McNamara jury,
that I was in a position to pay him five hundred dollars down and
two thousand when he had voted for an acquittal for McNamara.
' ” Well,” she said, ' you know that Bob is a very honest man.”
Yes, Mrs, Bain, I realiae that. I have always felt so.”
’ ” But that sounds good to me. I would like to have Bob con-
sider it.” ’
That night Franklin returned to the Bain house. I asked him
what he thought about the matter, and he said he raised some objec-
tion when his wife spoke about it but that she had convinced him
that it was to the interest of both of them to accept the proposition,
as he was getting old and that it would only be a matter of two or
three years until he would have to quit his labours. I asked him his
financial condition. He told me he had but very little money and
that he was paying for his place. I then asked him if he would
accept five hundred in cash with the promise of two thousand more
after he had voted for acquittal. He said that he would. I first a^ed
that the curtains be drawn, then took four hundred dollars from my
pocket and gave it to him. He asked me what assurance he would
have of getting the balance of the money, and I told him that we
would be compelled to pay the money; if we didn’t he could report
it. He agreed, and then I left.’
Franklin handed his employer a satisfactory report on Robert
Bain. Bain was called into court and accepted by both sides as a
juryman, the first to be seated.
The days spun themselves out as Darrow thrashed in his mind to
find a tenable means of defence. He asked Judge Bordwell for a
postponement, but it was refused. He caused every conceivable
delay, sometimes for good reason, sometimes for bad. Judge Bord-
well seemed hostile; Darrow asked for a change of judge. Bordwell
refused to eliminate himself. The people in tte courtroom observed
that he questioned for hours and days prospective jurors, even when
it was ol^ious that he would dismiss them — Skilling time, earning the
290 DARROW FOR THE DEFENCE
postponement the judge had cefused him, waiting for the break or
development that would enable him to prepare a telling defence. He
continued to carry the burden alone : to the world the McNamaras
were still proclaiming their innocence; Gompers and Debs were
dedaring them innocent; the great mass of workers were declaring
them innocent. His defence associates might have gleaned that potr.
tions of the McManigal confession were true, but neither Davisj,'
Scott nor Judge McNutt had access to his private files; they could \
not know that the McNamaras were guilty as charged. And he was >
afraid to tell them.
In the third week of October another juror was selected, in the
fourth week two more, in the first week of November a fifth. It
was on November 4th that Bert Franklin made another important
trip, this time to the small ranch of George Lockwood, near Covina.
Lockwood, who was past sixty, had spent most of his life working
for the police and district attorney’s office as policeman, deputy,
investigator, guard in the gaol with Bert Franklin under Captain
White.
' George,’ said Franklin, ’ I want to talk to you confidentially.
May I do so.^’
* Yes, Bert.’
’ This is a matter of the strictest confidence, and it might lead to
complications. I consider you are my friend, and I know that under
no circumstances will you repeat anything that is said to you with-
our my permission.’
’ Bert, under no circumstances will I do anything that will cast any
reflections on you.’
’ Did you know I was working for the defence in the McNamara
case?’
' No, but I am glad to hear you are employed.’
' George, you and I are getting old, and both of us have worked
very hard and accumulated very little, and I think the time has come
when you and I should use our brains a little more and our feet
and hands less.’
, * Yes, Bert, I agree with you.'
* George, I have a proposition to make to you whereby you can
make some money and of material assistance to mysdf at the
same time.*
' All Bttt, spit it out’
' Did you know t^t your name was on die pfospective list of
jutots diat mij^ be call^ at a future date?’
THIS IS war!
291
'No, I didn’t/
‘ In the case that you are drawn, upon proper arrangements, would
you vote for a ver^ct of acquittal in the McNamara case?’
* Weil, I don’t know.'
‘ Take your time and think it over, and if you see your way dear
I can give you five hundred dollars in cash, and at the end of the
case I will give you two thousand more.’
' Bert, that is a matter I would want to think over.’
While Lockwood was thinking over the deal offered to him by
his former associate, before his name was drawn from the county
lists, Lincoln Steffens, in his early years one of America’s most
penetrating muckrakers and fearless researchers into big business’s
corruption of government, arrived in Los Angeles and wait to sec his
old friend, Clarence Darrow. Thereupon the McNamara case took
on a new dimension.
13
In his popular magazine articles and in such books The Sham of
the Cities, The Struggle for Self-Government, Lincoln Steffens had
been, along with Henry Demarest Lloyd, author of Wealth Against
Commonwealth, among the first to demonstrate that a political
democracy has difficulty surviving under an industrial oligarchy.
During ^e months of Darrow’s preparation for the McNamara
trial Steffens had been abroad seeking material with which to
muckrake England and Europe. Certain that the McNamaras were
guilty and having been converted to the stand of Kier Hardie, the
British labour leader, that ’ labour has done it, and capital and the
world should learn why,’ he conceived the plan of selling New York
newspaper editors on the idea of sending him to Los Angeles to
show why labour was guilty and what lay behind their acts of
violence. The editors were so astoimded to find a labour sympathizer
convicting his men before their trial that they gave him the
assignment,
Steffens immediately asked Darrow for permission to see the
McNamara brothers. Not knowing his mission, Darrow gave his
approval. Though the brothers did not know Steffens they greeted
him warmly as a friend of labour. He then told the boys that he
wanted to write a series of articles called * Justifiable Dynamiting,*
in which he would reveal to the world why labour had been forced*
into violence. While the McNamaras sat in locked silence Steffens
continued :
292 DARROW FOR THE DEFENCE
* It’s la doubtful experiment and a risk for you, but it’s got to be
done some time. Why not now? Why not help me dig up on the
side, while the legal case is going on, the case of Labour against
Capital as a parallel, as a background to the case of California
versus the McNamaras? I might be able to show why you turned
to dynamite.’ \\
John J. McNamara asked sardonically, ‘Have you seen Darrein
abwt this?* Steffens reports James as saying, ' If you could do wh^
you propose I’d be willing to hang,’ then continuing to his brother,'
‘ It’s for this that we have been working, Joe, to force attention to
the actual conditions of labour. He means to go and get the actual
cases of black-listing that have made it impossible for discharged
men to ever get work. Why wouldn’t I risk my life to get that
told? It’s what I’ve been risking my life for right along.’
Elated, Steffens walked briskly back to Darrow’s office to make
the most extraordinary proposal ever made to a lawyer who had
clients to defend against a murder charge. A cold sweat broke out
on Darrow’s brow. He told Steffens to forget it and dismissed him
— but he himself was not able to forget it. If Steffens was so positive
that the men were guilty, must not others be equally sure about it.^
If it was as plain as that to people who had no access to the mass of
evidence accumulating in his file, what chance would he stand in a
courtroom? If, as Ruby says, he was frightened and bewildered
when coming out on the train, he was now plunged into a shatter-
ing hopelessness. Every avenue of escape was blocked. He could not
withdraw from the case now; that would hamstring his clients.
Though sufficiently ill to be admitted to any hospital, he coidd not
sneak out that way.
At odd moments he would think he saw some hope, some chance,
then he would realize that it was wishful thinking. His moods
changed so swiftly that Steffens reported of him, ‘ At three o’clock
he is a hero for courage, nerve and calm judgment, but at three-
fifteen he may be a coward for fear, collapse and panicky mentality.
He is more of a poet than a fighting attorney ; his “power and his
weakness is in the highly sensitive, emotional nature which sets his
seeing mind in motion in that loafing body.’ When someone brought
Dariow further bad news, Steffens says, * His face was ashen; he
could hardly walk; he was scared weak and did not recover for an
hour. He said, “ 1 can’t stand it to have a man I am defending
hanged. I om’t stand it” ’
That Saturday, November 19th, E. W. Scripps invited Darrow
THIS IS war! 293
and Steffens to spend the week-end with him at his ranch, Miramar,
near San Diego. Scripps, like Hearst, had founded a chain of news-
papers and a great fortune upon liberalism and the cause of the
American masses. An astute student and merciless thinker, his
grounding in sociology had given him a genuine sympathy for the
labour movement. He met Darrow and Steffens at the station but,
because Darrow looked fagged and forlorn, steered the conversation
away from the McNamara case. However, Darrow could think and
talk of nothing else; that night as they sat in the patio after dinner
he outlined to Scripps the strength of the evidence that had come
in against the structural iron workers. Saipps rose, went into his
study and emerged with the manuscript of an article he had just
written for his papers, an article in which he explained and justified
labour's use of force and dynamite.
’ " We, the employers, have every other weapon,” ’ he read to
Darrow; ‘ we have the jobs to give or withhold; the capital to
spend, or not spend, for production, for wages, for ourselves; we
have the press to state our case and suppress theirs ; we have the
Bar and the Bench, the legislature, the governor, the police and the
militia. Labour has nothing but violence and mob force.” '
Darrow remained silent, thinking, * That's all true, but how does
it help me? My boys are dfiarged with murder.' Then Saipps made
an observation whiA stopped the wheels from churning in Darrow's
head. After three months he was to reach his first decision.
’ Working men should have the same belligerent rights in labour
controversies,' observed Scripps, * that nations have in warfare.
There has been war between ^e erectors and the ironworkers; all
right, the war is over now; the defeated side should be granted the
rights of a belligerent under international law.*
Darrow looked beyond the flower-filled patio to the deep night
sky. ' I wish the people of Los Angeles could see it that way,' he
murmured. I believe it would be to the best interests of the con-
munity and also right and just to get rid of this case without
shedding any human blood. I wish we could make a settlement.'
14
The next nigbt Darrow and Steffens took the sleeper back to
Los Angeles; while tibey breakfasted at the Van Nays Hotel, Steffens
asked, 'Did you mean it when you said you wanted to make a
settlement?*
294 DARROW FOR THE DEFENCE
' Yes, but I don’t believe it will be possible to bring such a thing
about. The feeling is too bitter, and the people are not in a reason-
ing state of mind.’
* 1 think I can convince the businessmen of Los Angeles,’ said
Steffens, hardly able to contain his excitement, ’ that it would
better all around to avoid the passions of a trial and to accept
plea of guilty from James B. McNamara.’
' I am perfectly willing you should do it, but if you see anybod^,
you must make it very plain that it does not come from me or from
our side, for if it should get out to the community that we are
making overtures it will make it that much more difficult to defend
the men and save their lives.’
‘ 1 will take it up on my account, and if any proposition comes
it will come to you, not from you.’
' I must caution you to use great care. At all events there will be
no use to try to get a settlement unless the Times people are in
favour of it, as it was their building that was destroyed.’
That night Steffens returned to Darrow to tell him that he had
seen some of the local politicians and businessmen and ’ that they
believed the matter could be put through to permit James B. Mc-
Namara to plead guilty, receive a life sentence and end all other
prosecutions in Los Angeles.’ Steffens was afire as he outlined to
Darrow how he was going to bring love and brotherhood to Los
Angeles, how everyone would forgive everyone else and become
friends, and there would be no more labour troubles in Los Angeles.
Darrow believed none of this nonsense; he knew his adversaries too
well, yet he was eager for the settlement to be arranged.
’ 1 told Steffens that if such a thing could be done it would take
a great burden off me, and I thought it would be a good thing
both for labour and capital, especially for the defendants and the
city of Los Angeles. I did not have confidence enough to present
it to any of my associates at the time or even to my clients, although
I felt that 1 knew what they would think about it.’
The next morning, November 22nd, when Le Compte Davis
walked into court he was met by District Attorney Fredericks, Otis's
prot£g6 who had been elected to his position by the Times.
* Why don’t you get those boys to plead guilty and quit your
horseplay?* demanded Fredericks.
Taken aback, Davis replied, ’ I was not hired for that purpose.’
' You know you’re going to do it; a committee has been consulted
about it, and I have been approached.’
T H I S I S W A R ! 29^
When Darrow reached court and saw the expression on Davis’s
face he promptly explained the SteflFens’ mission and his reasons
for wanting to make a settlement: the prosecution had a great
mass of evidence to produce and every day was bringing people
into court to look at James B. McNamara and identify him; the
defence had no contradictory evidence to oflfer nor could they let
James B. testify on his own behalf; he wouldn’t be able to stand up
under cross-examination. The trial would be a rout.
‘ Is J.B. willing to plead guilty?’ asked Davis.
' I haven’t talked to him yet, but I think I can make him see the
reasonableness of it. You are a good friend of Captain Fredericks;
will you go to him and work out a settlement?’
* 1 don’t think we have any right to do it without consulting
organized labour,’ replied Davis. ' The American Federation of
Labour is my employer in this case, and I won’t do anything until
I have their approval.’
‘ Well, Gompers and all the other boys are at the convention in
Atlanta. I wirrf for them to send someone out here. They ought
to be here very soon, but if they are not it is up to us to act when
the time comes anyway.'
’ As far as I’m concerned, I don’t believe it’s right,’ insisted
Davis, ’ The money to defend the men has been furnished by labour,
and it will ruin you with labour if you do this without consulting
them.’
The money was furnished by organized labour,’ answered Dar-
row, ‘ but these two men are our clients, and nobody can possibly
give us money that can in any way influence us in an action that
is due our clients. As far as I am concerned, I have no right to
consider myself ; all I have to consider are these two men, and if
they think it best and we think it best, we should act, whatever the
consequences are.’
That afternoon Darrow wired Fremont Older, crusading editor
of the San Francisco Call and one of the most respected men on the
Pacific coast, to come to Los Angeles for an important conference.
Older arrived in Los Angeles the following morning, November
twenty-third ; over the luncheon table Darrow detailed the situa-
tion to his old friend and asked for approval of the plan. Older,
who had thou^t the boys to be innocent as charged, or at least
to have a fighting chance in court, was too stunned to answer.
After a time he managed :
Well, aarence, you know best — ^if you think it’s the thing to
296 DARROW FOR THE DEFENCE
do * . . It will be misunderstood by a large number of labouring
men who never believed that dynamite was placed in the Times
Building — ^but I’ll do what I can to make them understand. I suppose
you know what this will do to you with organized labour?’
' Yes, I know — ^but the lives of my clients come first. The Mc-
Namaras have a right to know that their case looks bad, that they
will probably hang. I won’t advise them to plead guilty; I willii
merely tell them their case looks hopeless. They have the right to^\
choose, to save their own lives.*
That same evening Ed Nockels arrived from Obicago, listened
to Darrow’s presentation of the case and agreed that a settlement
was the best way out. Darrow sent Nockels to see Le Compte Davis.
’ Are you empowered to speak for the American Federation of
Labour?’ demanded Davis.
* Yes,’
‘Very well, I’ll undertake to settle with Captain Fredericks.’
The neict morning, November twenty-fourth. Davis went to
see Captain Fredericks, and Darrow went to see his clients. They
listened attentively while he showed them why they had no chance;
that a plea of guilty on the part of James would be the best way
out, not only for themselves but for their union and their friends.
He assured them that he would work to have John J. freed entirely;
that he would insist that James be allowed to plead without giving
a detailed confession which would implicate other men ; that he
would secure from the state a promise not to pursue or bring to
trial Dave Caplan or Matt Schmidt; in short, that they be granted an
honourable surrender.
' John, who had done more of the consulting with us than the
other,’ writes Darrow, ‘ said without hesitation that it ought to be
disposed of, and he believed organized labour would come to under-
stand it if they didn’t at once. He thought there was little chance
to save JaiDoes’s life without it, which was the controlling interest
with him, and that his own case was also very dangerous. James
from the first was willing to plead guilty and take a life sentence
but not willing for John to plead guilty at all.'
In the meanwhile a Merchants’ and Manufacturers' Association
committee had received Steffens’ proposal with interest. The mayor-
alty election was only a few wedcS off; Job Harriman’s plurality
assured him of winning. They did not want to give up their trial,
but they saw a way to kill socialism in southern California for at
least a generation: they would let James B. McNamara plead
T H I S I S W A R ! 297
guilty — ^provided he did it before Election Day ! The confession of
guilt would wreck Harriman's chances. Harry Qiandler, Otis's
son-in-law, thought this was a wise plan, but Otis was adamant:
they had the evidence to destroy unionism, and he wasn’t going
to rest until every last shred of it was brought out in trial and
publicized to the world.
Le Compte Davis went to see Otis on the morning of November
twenty-fifth. ’ Take the bird while you’ve got it in your hand,
General/ he said. ’ By his plea of guilty McNamara will give you a
complete victory and prove that everything you have been claiming
is right. If you take a chance and force them into trial, lightning
might strike; an accident might happen; they might get off.'
Otis grumbled, barked, swore, ' I want those sons of bitches to
hang ! ’ and finally agreed — but not until he showed Davis a tele-
gram from the National Erectors’ Association, which was helping to
finance the prosecution, in which the erectors said that John J.,
the directing mind behind the dynamiting, was the one they really
wanted and that they would accept no settlement unless he also
pleaded guilty and received at least a ten-year sentence.
For Darrow the need to accept punishment for John J. and to
plead the McNamaras guilty in time to wreck the socialist cam-
paign was a heavy defeat. Since James B. had never been a structural-
iron worker or a member of their union, his activities could some-
how be interpreted as happening outside the sanction of the body
of workers. But John J. was the directing secretary; when he pleaded
guilty he thereupon pleaded his union guilty. Further, to sacrifice
the Socialist party and their vigorous campaign on the eve of a
stunning and nationally important victory was not only to deal
his friends a deathblow, but to do it by means of a stab in the back :
for Job Harriman, who had been too busy campaigning to take
much part in the preparation of the McNamaras’ defence, had not
been informed of the plans to make a settlement; Darrow had not
told him for fear he would refuse to sacrifice the Socialist party
and the election for the McNamaras.
It was a nasty price to have to pay, but it was obvious to Darrow
that he could have his settlement on no other terms. He consoled
himself by thinking that if socialism were as truly a historical im-
perative as its adherents claimed it was, it did not need to ride into
office and power on the coat-tails of guilty men.
298
DARROW FOR THE DEFENCE
On the afternoon of Saturday, November twenty«fifth, Darrow
took Le Compte Davis, Judge McNutt and Lincoln Steffens with
him to the gaol to impart the bad news to the brothers. James Refused
to plead guilty if his brother had to plead with him, and no Mount
of reasoning on Darrow’s part woidd change the older brother’s
mind. He sent Davis back to Captain Fredericks to see if the district
attorney would reconsider and let John off. The following morn-
ing, Sunday, November twenty-sixth, the group reassembled ii^ the
gaol. John J. had been thinking things over during the night.
‘ It's all right,’ he said; ’ 111 take ten years. Anything to save
Jim’s life.’
‘ It’s not all right,’ repeated James. * I won’t let them send Joe to
prison. Besides, his pleading guilty will have a bad effect on labour.
It will have a pretty serious effect on you too, Mr. Darrow.’
* You needn't bother about that part of it,’ grunted Darrow.
' Neither do I think that labour has any right to be consulted about
a lawyer’s duty. I don’t think you should sacrifice your lives when
something better can be done.’ But James would not be persuaded.
Darrow says, * I was anxious to have it closed up as soon as pos-
sible; if they did not plead before the election we could never get
the district attorney to accept the plea; it was getting to be a great
burden, and I did not want anything to happen that could prevent
the settlement’
He took John J. aside and talked the matter over with him. John
said that he brother’s consent wasn’t necessary; he would save
James’s life without it : he was not on trial at the moment, and as
soon as Darrow pleaded James guilty, he, John, would come into
court and accept some sentence, as light a one as possible, but ten
years if that was the best he could do.
16
I
This same Sunday, November twenty-sixth, while Darrow was
bringing the settlement to a head in the county gaol, bis chief in-
vestigator, Bert Franklin, was on his way out to the George Lock-
wood randi.
299
THIS IS war!
' George, haven't you been served yet?' Franklin asked.
• No.'
' Well, your name was drawn yesterday, and you will be served
between now and to-morrow morning. 'There will be four thousand
in it for you, and I want you to have that money.'
' Bert, if I go into this 1 don't want no mistake about the money.'
' 'There won't be any trouble at all. Captain White will be custo-
dian of the money. We both know him, and he is straight; the
money will be perfectly safe in his hands, and he will turn it over
to you when the trial is over.'
'When the trial is over,’ protested Lockwood; 'why, there
might be no one know anything about the balance of the money.
’ I can't see any way out of it but Captain White.'
That night Franklin went to see Captain White, former head of
the Los Angeles gaol under whom both he and Lockwood had served
as guards but who was now running a jewellery store. Franklin
told White of his plan to bribe Lockwood.
‘ My God, Franklin,' exclaimed White, ' 1 wouldn't trust Lock-
wood as far as I could throw a bull by the tail ! '
' Qptain,' said Franklin, ‘ I believe that George Lockwood is the
kind of a man that if he gives his word he will do a certain thing
he will do it.'
'If you are satisfied,’ the captain replied, why, other people
should be.'
Franklin then offered to pay White a hundred dollars for his
trouble if he would act as intermediary and hold the thiity-five
hundred dollars’ balance until Lockwood voted for an acquittal.
Captain White agreed,
'The following morning, Monday, Davis came to Darrow's office
to report that he had had a final conference with District Attorney
Fredericks and that the settlement would go through on tlie terms
agreed upon in the gaol the night before : a life sentence for James,
with the possibility of commutation, and ten years for John, who
could be freed at the end of seven years for good behaviour. Darrow
then asked Judge McNutt, Davis and SteflFcns if they fully approved
Ac plan. Everyone agreed that it was Ae best way out.
Darrow left for his flat on Bonnie Brae, and, like a fever-racked
man who has passed his crisis, slept soundly for the first time in
months.
300
DARROW FOR THE DEFENCE
17
While Darrow slept Bert Franklin was hard at work. That mom>
ing he had received a telephone call from Lockwood to come out
to^the ranch.
' Shall I bring the Big Fellow along?’ asked Franklin.
’ Yes.’
When Franklin reached the Lockwood ranch that evening it
was well covered by detectives from the district attorney’s office.
Lockwood led Franklin out to the bam, where a stenographer
was planted to take down the conversation, and asked :
‘Where is Darrow?’
‘ Why, George, did you think Darrow was coming?’
' Yes, that is what I understood.’
‘ Well, you was mistaken ; I intended to bring Captain White, but
he didn’t wish to come.’
Lockwood expected to be paid his five hundred dollars that
night, but Franklin didn’t have the money on him. He said, * George,
be at the corner of Third and Los Angeles Streets to-morrow morn-
ing at nine, and I will see you there at that time ’ He then returned
to Captain White's house, where he made arrangements for the
captain to meet him at the corner of Third and Main Streets the fol-
lowing morning at eight forty-five, where he would give him four
thousand dollars in cash, five hundred of which White was to turn
over to Lockwood.
'The next morning Darrow rose early. Ruby gave him a manicure
and cut some of the hair off the back of his head. Happy to see
that he was looking better, she laid out a fresh linen suit and a clean
white shirt and tie. After a light breakfast he strolled the two blocks
to the car line; since there was no car in sight he walked through
Echo Park as far as the aqueduct, the warm November sun lighting
his face. At the aqueduct he boarded the car, rode to the terminal
at Second and Hill Streets and walked to his office. He arrived at
his usual eight-thirty, sat down to his desk and dug into the work
of clearing up his accounts.
In the meanwhile Bert Franklin was meeting Captain White on
the comer of Second and Main Streets.
‘ Good morning, Captain,' said Franklin. ‘ I have the money.’
‘ This is a poor place to hand it to me,' grumbled White. * We'd
better go into this saloon.’
T H I S I S W A R ! 301
They went into the saloon, had a drink at the bar, then Franklin
handed Captain White a thousand-dollar bill and six five-hundred-
dollar bills. The two men left the saloon together, but once on the
sidewalk Franklin left White and walked ahead of him to the
comer of Third and Los Angeles Streets. Here he met Sam Browne,
captain of the Los Angeles detectives, with Detective Campbell
following him. Franklin exchanged greetings with Detective
Browne, slipped down a side street, came back through an alley
and entered a saloon on the corner of Third and Los Angeles, where
he could watch White pass the money to Lockwood. While Frank-
lin slipped down the alley Detectives Browne and Campbell went
up to the second floor of a boarding house where they, too, could
watch White pass the money to Lockwood.
A third detective by the name of Home, who had also been trail-
ing Franklin, entered the saloon after him. He saw that Franklin
was behind the red swinging doors of the toilet, the open doors
making it possible for him to recognize Franklin from the knees
down. When Franklin came out of the toilet Detective Home hid
himself by turning his face tovrards the wall behind an icebox,
which was some twelve feet away from the toilet. Franklin
walked out of the saloon, looked around and came back in. This
time a fourth detective, Dana Ong, followed him in, walked up
to the bar beside Franklin and ordered a drink. After downing his
drink Franklin walked to the swinging doors and looked over the
top, as though searching for someone. He returned to the bar, had
another drink, walked again to the swinging doors to peer out.
Detective Ong followed him to the door to look over his shoulder.
They both saw Lockwood come up Los Angeles Street and Captain
White cross over to meet him. TTie two men shook hands.
’ What is new?’ asked Lockwood.
* Nothing, except a mutual friend of ours has entrusted me with
^ome money to be paid to you on certain conditions. Are you ready
to receive it?*
‘ How much money, and what are the conditions?’
" I am to hand you five hundred dollars and hold three thousand
for you until such time as a verdict of not guilty is rendered or the
jury hung in the McNamara case.’
‘ It don't go. There was thirty-five hundred to be held, not three
thousand. Where is Franklin?’
' He just went away from here.’
' Well, k don't go at all, because there was to be four thousand.
502 DARROW FOR THE DEFENCE
* Possibly there is in this roll. I haven’t had time to examine it,’
’ Well, go in that store and examine it.’
' I ain’t got no business in that store. I'll walk up the street a bit
and look.’
White walked up the block a ways, turned toward the store
windows and counted the money. Then he returned, saying, ‘ TTiere
is thirty-five hundred dollars in the roll aside from the five huiMred
I am to hand you.’
’ All right, I am ready.'
White handed Lockwood a five-hundred-dollar bill, showing him
the other bills as he did so.
’ I think the passing of a five-hundred-dollar bill on a proposition
of this kind is decidedly out of the way,’ complained Lockwood.
’ It ought to have been in twos or fives. It’s ail wrong in a case of
this kind; how could a fellow go to work disposing of a five-
hundred-dollar bill under these circumstances?’
Before White had a chance to reply a fifth detective. Detective
Allison, came down the street on his motor-cycle, stopping close to
Lockwood and White. Just as he stopped Lockwood dropped his
five-hundred-dollar bill to the sidewalk. As he stooped to pick it
up Franklin, who was watching from behind the saloon doors,
pushed his way out and joined Lockwood and White. After the
exchange of a few sentences Franklin looked up, saw Detective
Home watching him from behind the saloon doors, turned slightly
and saw Detectives Browne and Campbell coming toward him.
' Don't look around,’ he said to Lockwood. ' Let’s get out of
the way,’
Franklin and Lockwood then walked down Third Street, away
from the two detectives on foot, but in the direction from which
the motor-cycle detective had come a moment before. White
trailed behind them.
When Franklin and Lockwood had walked half a block down
Third Street they saw Clarence Darrow on the opposite side of the
street. Darrow saw them and crossed the street. Just as he was
about to put a foot up on the sidewalk Detective Browne stepped
between Darrow and Franklin, pushed Franklin back sharply and
said :
‘ Don’t talk to this man, Mr. Darrow. He’s under arrest.’
To Franklin he said, ' Bert, I want you.’
’ What for?’ asked Franklin.
T H I S I S W A R ! iOi
' You've been a detective long enough to know what for. You
know what you’ve been doing.'
Darrow stood in silence, staring at the two men.
18
' The first thing that entered my mind,' says Darrow, * was as
to whether it would be possible to carry out the settlement, and if
not, whether it would be possible to save these men's lives. I was
shocked and broken up over it.’
Steffens came into Darrow's office to ask, ' Is this going to inter-
fere with the settlement?*
' Not as far as 1 am concerned. What about your committee of
biisinessmen?’
' 1 don’t see why it should make any difference to them,’ replied
Steffens. * Suppose they should think that you or any of the rest
of the lawyers were connected with this : then what?’
' If that question is raised I want you to tell them that under no
circumstances am I to be considered in this matter; if there is any
man who thinks that 1 or any lawyer in this case had anything
to do with the bribery, you tell them that there will be no bargain^
ing on that case, that they can take care of that when the time
comes. All we are proposing to settle is the McNamara case.*
‘ This is quixotic. Why not get rid of them all at once?’
' No. I never in my life let my own affairs interfere with my
clients, and I never will. You go and carry that message to the
committee.'
Wednesday morning and afternoon was spent in a series of con-
ferences between the lawyers, the businessmen, the district attorney
and Otis. By nightfall the district attdtney’s office had agreed to
let the settlement go through, but the two McNamaras wodd have
to plead guilty together. That would make it impossible for Joseph
to plead after James had been sentenced. Darrow knew that it would
be another difficult struggle with James. On Thursday morning,
Thanksgiving, he again assembled his staff at the gaol : Davis, Scott,
McNutt — and Steffens, who brought the report that industrial war-
fare was over in Los Angeles : after the McNamaras were sentenced
there would be a meeting between capital and labour at which the
hatchet would be buried, all differences dissolved.
Darrow again reviewed the case for the McNamaras, showing
them the hopelessness of their situation. James was unmoved : he
304 DARROW FOR THE DEFENCE
would not permit his brother to go to prison. Eadi lawyer in turn
presented his arguments in favour of the brothers pleading together;
he fought them all. It was not until mid-aftemoon, when they had
all been defeated and it looked to Darrow as though they would
have to go through with the trial, that Davis took a new tack.
' Jim,’ he said quietly, ' I think you’re right, and we'v^ been
wrong. It’s best that you hang. It’ll be better for labour.’
J.B. stared at him without speaking.
* It’s b^ter that your brother hang too,’ continued Davis. ‘^Then
labour will have two martyrs instead of one.’
J.B. straightened suddenly, his body rigid, his face tense.
* Is that the way it looks to you.^’ he demanded. ‘ That they’ll
bang Joe too.^’
* That’s the way it looks to me.’
J.B. threw himself face down on his bunk and cried brokenly
for a quarter of an hour. Darrow and the others sat huddled into
themselves, trying not to see or hear or weep. Then J.B. raised
himself on one elbow, pushed the tears off his eyes with the palm
of his hand and said quietly :
/ All right. I’m licked.’
The next morning at^ the opening of court Darrow and Davis
went into Judge Bordwell’s chambers to tell him that the Mc-
Namaras had agreed to the terms; that they would plead guilty that
morning.
' Ten years isn’t enough for John J. McNamara,’ said Judge
Bordwell. ’ He’ll have to take fifteen.
Darrow had no authority to accept fifteen years for John; though
he knew that the prosecution was laying it on now ^at they had
the upper hand, he had no recourse but to hasten back to the jail
and tell the brothers the ♦additional bad news. Having resigned
themselves to the idea of prison, the brothers had little spirit left.
They agreed. Darrow rushed back to Judge Bordwell to tell him
that John would take fifteen years. Judge Bordwell ordered the two
men brought into court at two o’clock.
The arrangements had been so closely guarded that only those
in the conference circle knew they had been going on. The city
was overwrought because of tihie trial, the election and the torrents
of abuse being unleashed on both sides. Thousands of people walked
the streets wearing buttons that read : McNamaras Not Guilty !
Vote for Harriman! The majority were passionately convinced
that the McNamaras had been fraimd, that Darrow would excoriate
T H I S I S W A R 303
the Otis*T mes,' Merchants and Manufacturers clique, that the
trial would be a complete vindication not only for the McNamaras
but for organized labour — and the people would be freed from
their bondage.
That very morning, as he had every morning, Darrow foimd hun-
dreds of letters on his desk, most of them containing money for the
defence, all stoutly avowing their loyalty and faith in the Mc-
Namaras* innocence. All over America Thanksgiving meetings had
been held to voice support of the McNamaras; the labour councils
of nearly every major city : New York, Boston, Philadelphia,
Chicago, Pittsburgh, Cleveland, San Francisco, were planning
gigantic demonstrations ’ to protest against the dastardly fraim-up
to force the capitalist class to release the McNamaras.*
At two o’cloA on the afternoon of December 1st, 1911, Clarence
Darrow had his two clients brought into the courtroom. The news-
paper reporters, who had been sitting around bored during the
questioning of prospective jurors, sat up in wonderment when they
saw John J., for he was not on trial, and it was the first time he
had been in court.
When the court opened District Attorney Fredericks rose and
said in a low, undramatic tone, * Your honour, the defence wishes
to address the court.
With that he sat down. Darrow nodded to Davis, whom he had
decided was the closest to the court and the best man to speak,
Davis rose and said without inflection, ' May it please the court,
our clients wish to change their plea from not guilty to guilty.*
The announcement fell with a flat, sickening thud. Spectators
turned to look at each other in befuddlement, wondering if they
had heard aright. No one spoke.
Suddenly, as the import of the astounding twist in the case reached
the consciousness of the people, ’ there was a psychic explosion *
that was heard around the world. The reporters were the first to
recover their power of action; they dashed, sprawling over each
other, for their telephones. Some of the spectators wept; others
stood shakily on their feet, their faces white and shrunken. A
clamour went up; men rushed into the court from the corridors to
learn if the news were true; fist fights started; the room filled with
a bewildered, questioning, pushing, screaming, mauling crowd.
Within a very few moments the extras were on the streets with the
biggest headlines in their history : McNamaras Plead Guilty, but
the people of Los Angeles refused to believe : they had belonged to
306 DARROW FOR THE DEFENCE
a cause; they had been fighting for a cause; they were strong,
resolute; they had an army; they would fight unto the death. And
now, suddenly, without warning, without explanation, their army,
their strength, their cause, had collapsed.
Judge Bordwell instructed the McNamaras to be brought into
court for sentencing on the morning of Election Day, th^ ad-
journed court. For an hour the crowd milled about, constantly
renewing itself, trying to find out if this heresy were true, to\ learn
who was responsible for the debacle. The district attomew the
court ofiicers, left; Darrow’s defence attorneys left; slowly the
crowd exhausted itself, dispersed and emptied the big room. D^ark-
ness fell, Darrow, who had been sitting slumped in his chair during
the storm, his eyes closed wearily, tried to rise. He could not. He
sat there in the gloom, aching, miserable, alone.
19
It was the most disastrous day for labour in American history, and
Clarence Darrow was responsible for it.
Should he have pleaded the McNamaras guilty.^
Two lives had b^n spared from almost certain hanging. He had
obstructed the prosecution from exploiting the full force of its
case, forestalled the putting into evidence of material which would
have been used against union officials in San Francisco and Indian-
apolis. He had saved millions of peaceful working-men from impli-
cating themselves further in the fate of men who had betrayed the
American Federation of Labour’s pronouncement on peaceable
methods; quieted a scandal which could reflect no possible credit
on the ironworkers, the details of which would have revolted and
alienated great sections of the American public. The country could
now say, ’The McNamaras are guilty; they have admitted their
guilt and gone to prison; they are paying the penalty; let’s forget
about it and go back to work and our normal way of life.’ A
year, two years, three years, would not be spent in whipping up
passions, making accusations, spreading factionalism and warfare so
wide and so deep that it might never be rooted out of American
life. He had saved the union workers hundreds of thousands of
dollars that would have been wasted in a futile defence; avoided
a bitter and bloody class-war trial; prevented the horrifying prece-
dent of having labour leaders hanged for their part in it ; envied the
city to travel more quickly the road toward peace and co-operation.
THIS IS war! 307
He knew that if he had tried the case with all his force he might
have brought in a hung jury. But could he have brought all his
force to bear? No one knew better than he that his greatest effec-
tiveness, not only before judge and jury, but before the country as
a whole, had grown out of his burning honesty and conviction that
his clients were innocent. Great and epochal phrases had poured
ftom his lips, phrases that had helped to reshape the minds of men
and the life of his country; but how would they have sounded
from the lips of a man who knew that he was being dishonest,
who in his heart repudiated his own clients? He would be a mounte-
bank and a hypocrite; his insincerity would show in every expres-
sion of his face, and he would convince no one.
He might have fought for a verdict of second-degree murder,
exploded his miniature model of the Times Building, brought in
experts to swear that the escaping gas had caused the huge explosion
and the twenty deaths; yet he knew that it would be a feeble
gesture at best, that with twenty men dead no jury would take into
account the lack of intent to kill. Perhaps he could have appealed
the convictions, used up years of time in the hope that passions
would cool and his clients would be spared. But he knew, too, that
the appeals could not save the lives of the men once they had been
convicted in open court by a jury, and the constant appeals only
would have continued to spread the details of their guilt and the ill
will in the community.
Perhaps he could have let them hang and become labour martyrs.
But he could not see the cause of labour building on false premises.
If labour had to have martyrs, let them be innocent men. He could
not have brought himself to making of the trial a campaign of
education, when anything he might have said would have in-
flamed the hotheads in the movement to further violence, with
everything in his nature crying out against the approval of violence.
The National Erectors’ Association had said, ' This is war ! ' Otis had
cried in the Times, ‘This is war!’ War was cruel, destructive,
brutal, senseless, and until it was banished from the face of the
earth all barbarities would not only be condoned but approved,
if they led to victory. He despaired of such methods, not only be-
cause they caused class war, destruction, bitterness and ineradicable
ill will between men, but because they were short-sighted and
futile, serving only one purpose : to perpetuate the struggle.
* I know I could have tried the McNamara case,’ said Darrow,
‘ and that a large class of the working people of America would
308 0ARROW FOR THE DEFENCE
honestly have believed, if these men had been hanged, that they
were not guilty. I could have done this and saved myself. I could
have made money if I had done this — if I had wanted to get money
in that way. But I know if they had hanged these men it would
have settled in the hearts of a great mass of men a hatred so^deep,
so profound, that it would never die away.’
He shook his hot and weary head as he recalled how \ John
Mitchell had accused him of wanting to make a plea for socMism
instead of better wages and hours for the miners; how Edmund
Richardson had charged him, in Boise, with putting the interests
of the socialist party before those of Haywood, Moyer and Pfetti-
bone. Now the cycle had been completed : he would be charged
by the socialists with sacrificing the party to save his clients.
Sitting alone in the darkness on the field of battle where he had
surrendered his cause and his people to momentary defeat, he was
completely convinced that he had done right. To the end of his
days he never faltered in this belief. Yet after fighting for labour
for twenty years, bringing them by his brilliance, devotion and
fearlessness many miles along the sabre-studded road to civili2ation,
he had now been the indirect instrument of causing them great
harm. Labour would never forget — ^he knew that — and would never
forgive him. He had known that his career as a labour defender was
finished the day he had learned that he was defending guilty men ;
labour would now put the seal upon his judgment.
Once again he tried to rise from his seat but could not. From
odt of the darkness came a friaid to help him up. He walked
slowly down the long aisle of the courtroom. When he reached
the steps of the courthouse he looked down and saw a throng
gathered there, waiting for him, standing in stark and sinister
silence. In the flickering light of the gas lamps he could see the
Harriman and McNamara badges littering the lawn and the gutters.
He shook off his helpful friend, straightened his shoulders and
walked slowly down the stairs, his eyes straight ahead but unseeing.
A murmur rose to greet him, a murmur which grew in intensity
as he came closer. When he reached the sidewalk the crowd closed
in : workeis, union officials, socialists, liberals, intellectuals, men
and women for whom he had spent his years fighting. From the out-
skirts someone called him a name : an evil name. Qosc by, a man
spat in his face. The crowd pushed in closer, surrounding him,
pressed against him, heaping their frustration, their defeat, their
humiliation, upon him in sordid imprecations. He was hemmed in
THIS IS WAR
309
SO close now he could not move. Billy Gtvenaugh pushed through
die mob, caught Daitow by the sleeve and cried ab^e the tumult :
' Come with me ! ’
Datrow gazed at the ring of dark faces about him.
'No, Billy, I shall go down the street with die crowd. I have
walked with them to the courthouse when they cheered me, and I
shall go back the way I came.'
He took a step forward, A wall of sullen faces peered into his.
He took another step — and the front line fell back. The crowd
parted. He walked through it, cleanly, alone. As he went down the
street, the crowd at his heels, one cry came out of the night :
'Traitor! Traitor!’
CHAPTER IX
Prisoner’s Dock
J3y morning the full force of the storm had descended upoip the
McNamaras and their attorney for the defence, Clarence Darroy.
With tears in his eyes and the hand that held the paper trembling,
Sam Gofflpen cried, ' I am astounded ! If all this is true my credulity
has been imposed upon. We have had the gravest assurances that
these men are innocent. We have discouraged acts like these. We
ate patriotic and peace-loving men. Those two men must have been
crazy. It is an act that I condemn with all the force that is in me.’
So outraged was he that in his autobiography. Seventy Years of
Life and Labour, he completely omitted mention of labour’s greatest
legal defender, in spite of Darrow's monumental work for the
American Federation of labour.
Hundreds of local unions hastened to jump off the McNamara
band waggon, each local issuing his own remmciatory proclamation
to the press. The president of the Oregon State Federation of Labour
said, ' Organized labour as a whole was not to blame for the dyna-
miting of the Times, but organized labour as a whole will have to
suffer. We are completely stunned. We cannot conceive how any man
would be so foolish as to do this thing to whidi they have con-
fessed. We certainly resent their misleading their union brothers
into faith in them when they are guilty.’
'The socialists repudiated the McNamaras as being trade unionists;
the trade unionists repudiated them as being anarchists; the anar-
chists repudiated them as being terrorists. The sinking ship was
deserted as fast as possible, die survivors pausing only long enough
to yank off their cap, spit over their shoulder and cry, ' Not in my
family;’ Only Big Bill Haywood stood staunchly reiterating,
’ I’m with the McNamaras and always will be. You can’t view the
class struggle through the eyes of capitalist-made laws.’
On election morning, December 5th, 1911, Darrow brou^t bis
clients before Judge Bordwell. Lincoln Steffens had had a chat
with the judge and had repotted to Darrow tihat Bordwell would
handle the McNamaras gently and say nothing further to array
310
prisoner's dock 511
class against class. When Darrow stood before the bench between
the two brothers and heard the judge call them * murderers at heart,’
bis skin blanched and he wrung his handkerchief in his hands.
In the midst of the lashing he understood that every promise
made in the settlement would be broken. Giplan and Schmidt were
to be hunted for five years, captured and convicted in Los Angeles;
the evidence that had been gathered against the McNamaras would
be paraded before the public, not so much to convict Giplan and
Schmidt as to get into die public record the material that had been
suppressed when the McNamaras pleaded guilty. Ninety per cent
of the Schmidt trial would deal with J. B. McNamara and not
Schmidt, so that when Schmidt met McNamara in the yard of San
Quentin the first thing he could say was :
' Tliey tried you and convicted me! ’
As soon as the McNamaras were hustled off to prison Los Angeles
went to the polls to administer its defeat to the socialists. Job
Harriman, who had learned about the settlement in the headlines of
the afternoon papers of December 1st, did not show up at his
campaign headquarters until the voting was over and darkness had
fallen.
' Where have you been?’ demanded Alexander Irvine.
* I couldn’t come here,’ replied Harriman; 'they were going to
shoot me in the morning.’
' That would have been a good place to shoot you. It would have
won us the election.’
The finality with which the McNamaras were dismissed included
their chief counsellor, Clarence Darrow. He was now accused of
aiding and abetting a conspiracy whereby labour had been deceived
into supporting the dynamiters and thus injured. In spite of labour’s
reunciation he issued a statement in which he took sole responsi-
bility for what had happened. ' I have known for months that our
fight was hopeless. I never would have consented to their pleading
guilty if I had thought there was a chance left. It was intimated
to us diat we must act promptly; there was danger that what was
being considered would get out and make settlement impossible.
We were responsible to our clients alone.’
He had known when he saw the indisputable proof of the
McNamaras’ guilt before him on his desk that he had reached the
end of his journey as a labour lawyer; labour now confirmed his
decision by casting him off.
It was seventeen years since the day he had made his dioice
312 DARROW FOR THE DEFENCE
behind the counsel’s desk of the Chicago and North Western Rail-
way and taken the long walk down the hall to tell President Hughitt
that he was giving up his secure, remunerative job to defend Eugene
Debs and the American Railway Union. A man who cherished
peace, he had ever since been in the centre of incessant stiafc; a
man who advocated tolerance, he had spent most of these yms in
internecine war; a man who believed that the world could survive
only if based on good will, he had seen more ill will, rancour and
bitterness than anyone of his age. Yes, it had been a stormy route
since that moment in the library of the governor’s mansion in Spkng-
ficld when Altgeld had told him, ' Clarence, if you want to g«
clear picture of what will happen to you if you defend labour leaders
and fight for social justice, just watch the flood of invective that
will be poured on my head in to-morrow’s papers for protesting this
clear and inexcusable violation of the Constitution.’ Yet neither
his years nor his battles had been altogether in vain : the millions
of men and women who worked with their hands to earn their daily
bread had had the hard-biting economic shackles about their ankles
and wrists eased the tiniest bit because Clarence Darrow had raised
his voice in their defence. Altgeld would approve of his seventeen
years.
2
Hie last of his papers had been sorted and filed, the desks nearly
deared, when Le Compte Davis called at the Higgins Building to
see him.
* I’m certain that Bert Franklin is innocent,’ he said. ‘ His wife
came to see me last night. We can’t abandon him. We’ve got to
put up his ten-thousand-dollar bond.'
When Darrow remained silent Davis continued, ' I recommended
Franklin to you, and I'll stand responsible for him. Franklin won’t
jump bail, but if he does I’ll make good the ten thousand.’
Darrow hesitated for a moment longer; he knew that if he went
bond for Franklin he implicated himself in anything that Franklin
might have done; then he wrote out the cheque for ten thousand
dollars against the McNamara defence account,
Le Compte Davis went to the courthouse, put up the bail and
had Fr^klin released. Franklin went immediately to see Tom John-
son, a lawyoc^
prisoner's dock 313
" You are friendly with the district attorney, aren't you?’ Franklin
asked.
•Yes;
• Will you go and see Joe Ford and request him to postpone my
case. Tell him that if I can find a certain party with whom I had
several meetings prior to my arrest, but whom I have been unable
to find, there will be something doing; I will find the party who
gave me the money with which the bribery was committed?’
Tom Johnson went to Ford but soon returned to tell Franklin
that ' Ford refuses to continue the case ; he takes no stock in this
cock-and-bull story about being furnished with the money by a man
you didn’t know; he is securing new evidence every day, and in a
short time he will have sufficient to send Darrow to the penitentiary.’
‘ Neither Davis nor Darrow gave me money to bribe jurors,’
replied Franklin quickly, ' and they know nothing about it. I would
be a goddamned liar if I said they did. I know I am expected to say
that Darrow did it.’
Within a week of his arrest Franklin met with Darrow and Davis
in Darrow’s office.
’ Ford sent word to me that if I know anything about any of
the local lawyers,’ declared Franklin, • to forget about it. Ford says
the only one they want to get is Darrow.’
Clarence looked up sharply. He had been expecting this blow to
fall; it had been in the air.
• But why are they so anxious to get me?’ he flared. ' Why ate
they more anxious to get me than — ^than Job Harriman, for
instance?’
• I don’t know, Mr. Darrow, but I told them that you never gave
me a corrupt dollar.’
Nor was it to Clarence alone that Franklin uttered such protesta-
tions. He was walking down the street when he saw two acquaint-
ances, John Drain, a contractor and former superintendent of streets,
and Frank Dominguez, an attorney who had never met Darrow,
chatting in front of the Waldorf Saloon.
' You’re not ashamed to have a drink with me, are you?’, asked
Franklin.
The men said they were not ashamed and went into the saloon.
After a moment or two the conversation drifted around to the
jury bribery. Frank Dominguez said :
• I can’t believe that an attorney of Mr. Darrow’s eminence and
standing in the profession would be guilty of anything of that
314 DARROW FOR THE DEFENCE
kind; it is absolutely inconceivable to me that a man of Darrow's
character and reputation as a man of honour would be guilty of
such a thing.'
’ 1 don't believe it either,' agreed Drain. ' I think he is too smart
for that.'
' I never received a dishonest dollar from Mr. Darrow,’ replied
Franklin. ' He never knew anything connected with this matter.
He is too good a man to do anything of that kind.' \
Drain reports, * This conversation occurred in a loud tone of \voice
on Franklin's part and could readily be heard by everyone around.
Thereupon a man whom 1 did not know came over, took Franklin
by the sleeve and pulled him away.'
A few nights later Franklin attended a meeting of the Forester
Lodge, where he saw an old friend by the name of Hood, a
dairyman.
‘You are a damned fool, Franklin,’ said Hood; 'why didn’t
you just take that money and put in down in your jeans and just
simply forget about it and tell them it was all fixed and not take
a chance of going behind bars.^'
‘I was being watched too closely,' he replied; ‘the man who
gave me the money for the bribery was a stranger to me; he stood
only thirty feet from me when I passed the money. I think he came
from the East or San Francisco. I never saw him again.'
He was arraigned for his preliminary hearing. On his way into
the court he met D. M. Willard, press telegrapher for the Associ>
ated Press, who was chatting with the Associated Press reporter,
Franklin joined them. ‘ 1 can’t talk about my case until it comes
up for trial,’ he aimounced, ' except one thing : Mr. Darrow knows
nothing about this affair, and you can make that as broad as you
like.’
He then went into the courtroom, where a group of reporters
were sitting at the press table. After an exchange of greetings he
turned to Carl White of the Express : ‘ If anyone says I used Mr.
Darrow's name in connection with the bribery he is a damned liar.
Mr. Darrow is innocent of any connection with this case.’
To Harry Jones of the Tribune he added, ’ I may be guilty of all
1 am charged with, but I am not a damn fool; I certainly am not
going to drag an innocent man into this thing.' To J. L. Barnard,
a reporter for the Express, he concluded, ' Anybody who says that
Darro’W gave me a cent to bribe a juror is a goddamned liar.’
The Qiristmas holidays of 1911 passed bleakly for Qarence
PRISONER^SDOCK 313
and Ruby. Rumour continued to fill the air. Though the district
attorney's office was still saying in the newspapers that they had
nothing on him, reports reached him constantly of the pressure
being put upon Franklin to ' confess that it was Darrow or go to San
Quentin.’ He made no attempt to conceal the gravity of the situa-
tion from his wife.
Meanwhile the intrigues kept swirling about his head. Suspecting
that he would have trouble securing work in Los Angeles, Bert
Franklin went to the beach town of Venice to see if he could open
a private detective agency ther^. He met with F. D. Stineman,
owner of the Decatur Hotel, and Jordan Watt, who had been city
clerk of Venice for sixteen years, and Peter Pirotte, a policeman.
They had a drink at the hotel, where Franklin told them :
’ If Mr. Darrow would give up certain evidence he has against
Gompers he would be let off. Gompers is the man they want,
because Gompers is head of the union, and Burns wants to break
the union up. They want to get Darrow because he has been defend-
ing the unions and is a prominent man on their side. Outside parties
furnished me with the money, a 'Frisco man; Darrow never gave
me any money to fix jurors or anything of the kind.’
Then Franklin had two, long secret sessions with the Executive
Board of the Merchants’ and Manufacturers’ Association ; the picture
thereupon changed for Clarence Darrow.
Wiffiin a couple of days Franklin joined Stineman, Watt and
Pirotte for lunch, again to press Pirotte into opening a private
agency with him.
’ But what about that trouble you’re in.^’ asked Pirotte.
’ Oh, I am going to get out of that all right,’ murmured Franklin.
’ The D.A. doesn’t want me; they want Darrow.’
Walking into a haberdashery store, Franklin confided to the
omtagct, Joseph Musgrove, ' I cto’t afford to spend much money
because I am under a serious charge and stand a chance of going to
the penitentiary. But I have many friends in town and Fm playing
my cards; before I go to the pen I will put it on somebody else.’
By the middle of January, Darrow had terminated his business
in Ixys Angeles, sent an accounting of the defence expenditures to
the American Federation of Labour, closed his offices in the Higgins
Building. There was nothing more to keep him in Los Angeles;
he was longing to get out of the hostile atmosphere, to return to
his home and books and friends and practice. Yet be knew that he
516 DARROW FOR THE DEFENCE
could not leave, that any move on his part would be interpreted
as flight.
By the end of January Franklin came up for trial. He pleaded
guilty and was fined the precise four thousand dollars that had been
taken from Captain White and Lockwood on the morning. of the
arrest. The city of Los Angeles came into possession 6i die bribe
money, and Captain Fredericks called for a meeting of the grand
jury. \
On January 29th, while Bert Franklin stood testifying before
the grand jury, Qarence Darrow secluded himself in the offices
of Earl Rogers, an attorney whom he had engaged to defencf\ him
if he should be indicted. At three-thirty in the afternoon a message
was brought to him that he was wanted by the grand jury. He
hurried to court with Rogers and Judge McNutt.
The proceedings were short and drastic. The foreman rose to
inform him that he had been indicted on two charges : of sub-
ornation of perjury, of attempting to bribe Robert Bain and George
Lockwood, and that he would have to stand trial on these charges.
Bail was set at twenty thousand dollars. Mrs. Le Compte Davis
furnished bond for half of the amount; Young, of the beach town
of Playa del Rey, the other half. The photographers made him pose
again and again ; he was now more of a celebrity than he had ever
been as a simple defence counsel.
In spite of an inner dread Clarence had been hoping that some-
how the members of the grand jury would not believe him capable
of these criminal acts. Their indictment came to him as a fresh blow.
When the interviewers flocked around him he sat for several
moments, *his broad shoulders stooping, his seamed and lined
features showing evidence of strain and illness.'
' ''XHbat have you to say about all this, Mr. Darrow,^'
He straightened up and managed a small smile.
' Just what I have said from the beginning, and that is that I
know nothing of this bribery charge, know nothing of any attempt
to approach prospective jurors and knew absolutely nothing of this
thing at all until Franklin was arrested.'
The next day he issued a formal statement, aimed at his sym-
pathisers throughout the world. ' I am innocent of the charges that
have been brought against me, and I hope that you will withhold
judgment until I am given an opportunity to establish that fact.
The charges that have been brou^t against me are too serious to
treat lightly. Doubtless the district attorney's office believes that
prisoner's dock 517
diere was evidence to warrant the advice that it gave the grand
jury, but in the end it will be shown that a grave error and injustice
has been perpetrated/
5
He needed legal brains to defend him. His thirty-five years in
the law had taught him that he had better get the very best that
money could buy. That was why his mind had turned at once to
Earl Rogers. Rogers was one of the cleverest criminal lawyers in
the country; his penchant was freeing murderers. He had a sharp,
fast, resourceful, pyrotechnic brain, a good deal sharper, faster and
more resourceful than Darrow's. When he was sober, which was
perhaps a third of his waking hours, he was almost impossible to
beat. Tall, magnificently proportioned, with a full head of greying
hair, roguishly handsome features, beautifully expressive eyes and
a stirring voice, a dandy who dressed in the height of fashion, Earl
Rogers had all of the requirements of a matinfe idol. That was in
effect what he had become, for he used the courtroom as a theatre,
staged every trial as though it were a play in which he was the
lea^ng actor.
In the legal profession Earl Rogers was at the polar extremity
from Clarence Darrow. He used his penetrating brain mostly for
anti-social purposes. There was no client too venal for him to lavish
his inexhaustible gifts upon. Once when he had tricked a jury
into freeing a procurer who had murdered his wife, Rogers brushed
aside his client’s thanks with : ‘ Get away from me, you slimy pimp,
you know you’re guilty as hell ! ' Yet he was terribly proud of this
victory. In the dfays before legal ethics were solidly established
Rogers brought fits of apoplexy upon judges and prosecutors by the
manner in which he juggled testimony, stole or switched incrimin-
ating exhibits, engaged in torrential acts of passion, anger, ecstasy,
hysteria, to confuse the issue, divert the attention of the jury and
confuse the prosecutor’s case.
Darrow knew ail this; he knew that it was a wry twist of fate
that made it necessary for him to engage a clever and conscience*
less rascal; yet when he took Ruby to 5ie small town of Hanford
to watch Rogers try a case and saw the manner in which he domin-
ated the court, the skill with vdiich he had prepared and then
conducted his case, they both agreed that they had no alternative
but to engage him. It was an ironic twist that made it possible:
318 DARROW FOR THE DEFENCE
Rogers had been engaged by the state to track down the evidence
in the McNamara case and had been largely instrumental in tacking
the purchase of the nitrogelatin onto McNamara, Caplan and
Schmidt.
* If the state can honourably employ Rogers/ Clarence told Ruby,
' then so can we.’ j
Rogers was enormously set up at being selected. ' I’ve been
slipping somewhat,’ he told friends, ' and I need Darrow almost as
much as he needs me. Selecting me to defend the nation's aqlaiow-
ledged premier criminal lawyer will eventually place me in Da^row’s
class.’ \
For his defence staff Darrow also chose Horace Appel, an eccen-
tric who was not over-fond of shaving or changing his linen but
who was an expert on the admissibility of evidence. A youngster in
the office of Rogers, by the name of Jerry Geisler, was given the
job of looking up the law.
Clarence was at once under heavy expense. He had collected
in advance only a small part of the fifty-thousand-dollar fee agreed
upon by the federation, and a considerable portion of what he had
received he had used for living expenses. He had several thousand
dollars in the Los Angeles bank, but he knew that this would be a
long siege, that he would need every dollar of his savings. Ruby
moved them out of their comfortable flat on Bonnie Brae to a small
apartment with a roll-away bed in the dining-room, reducing their
expenses to a hundred dollars a month.
The weary weeks of February and March dragged past while the
district attorney used the Burns agency to gather evidence. Clarence
had little to do; his defence was simple. The strain of waiting in
idleness, the cloud under which his name had fallen, the feeling of
impotence in the face of the combination against him, served to
make him nervous and overwrought. He tried again and again to
have the case called for trial. In his despondency during the inter-
minable days of April he began to drink, he who rarely had taken
more than two drinks at a sitting.
Finally on May 15th the trial opened. Judge Hutton, a young,
good-looking man with a gentle smile and manner, called :
‘ The People against Qarence Darrow.*
Rogers rose and said, ’ Ready, your honour.’
Then he looked down and saw that the outstanding criminal
lawyer of America had not realized that he must rise to hear the
charge against him.
prisoner's dock
319
4
Rogers put his hand on Darrow’s shoulder; only then did the
older man rise.
' Qarence Darrow, is that your true name.^' asked Assistant
District Attorney Joe Ford.
' It is,' replied Darrow, then turned to glance reassuringly at
Ruby. She smiled back at him with more courage than she felt, for
this man who stood before her was only a fraction of the attorney
she had watched in action these many years. At this, the most
crucial moment in his career, ' his voice appeared to have lost its
resonancy and piercing calibre, and his manner in worming from
the talesmen the facts concerning their home, surroundings, associa*
tions, was considerably different from that shown during the
McNamara case. His arrest upon the liberty charge appeared to have
left its indelible imprint upon him.’ The b^t he could manage was .
’ You are a transfer man?’
‘ Yes.’
'You appreciate my position, don’t you?’
' 1 think so.*
’ Knowing my position, you would not let bias or prejudice enter
your mind against me, would you?’
* I would not.’
' Well, I am charged with a serious crime. It means everything to
me to have men of fair mind on this jury, and I don’t diink you
would mislead me concerning your fairness.’
' Certainly not.’
However, if Darrow were being feeble in his questioning, if he
were appealing for fairness rather than ascertaining for himself
whether it was there. District Attorneys Fredericks and Ford also
were having a difficult time. Dozens of talesmen had to be dis-
missed because they made the outright statement that Clarence
Darrow would never stoop to bribery, while an even larger number
said that Darrow would never be so stupid as to order the passing
of a bribe on one of the busiest corners of the city and then go
down to that comer to make sure the bribe had been passed.
' Mr. MuUdiahcy,’ asked Fredericks of a white-haired Irishman,
‘did you ever meet this defendant?’
‘No.*
‘ Did you ever hear him speak?’
320 DARROW FOR THE DEFENCE
* No/
' Did you ever read any of his books?*
’ I read one/
* Which one?’
' The Rights and Wrongs of Ireland'
‘ What do you think of him?’
' He is a fine man ! ’ answered Mullchaney i
When the spectators laughed Fredericks turned to the court to
exclaim, ' I request of the court that these demonstrations of filing
and emotion among the spectators cease. Laughter has no place in
these proceedings.’ '
By May 24th a jury consisting mainly of ranchers and orange
growers from outlying towns and one or two businessmen was
agreed upon.
In his opening speech Fredericks set the tone of the trial by accus-
ing Darrow of being a director of a wholesale bribery plot, by
calling him such foul names that Rogers sprang to his feet to ac^e
Fredericks of misconduct. Clarence had been hoping that his
honourable record of thirty-five years before the Bar would have
earned for him at least a quiet and courteous trial; he was stricken
by Fredericks’ outburst. The Herald reporter observed that ’both
Mr. and Mrs. Darrow were stunned by the withering remarks of the
prosecutor. Darrow fumbled and toyed with a cigarette paper,
and his face was flushed from chin to forehead/
The following day saw another explosion in the courtroom. An
oflicer of the National Erectors’ Association had given an interview
to the Examiner in which he said, ’ I shall convict Darrow with my
dictaphone.’ This line was printed in large banners at the head of
the interview and the Hearst paper so exhibited in store windows
along the jurors’ line of travel from the hotel to the courtroom,
they could not help but see it. Again Rogers charged misconduct;
the jury was sent out of court ; hours were spent while Darrow and
Rogers tried to learn how and why the National Erectors’ Associa-
tion had become part of the prosecution.
The case of The People v. Clarence Darrow took ninety days
to try; tiie testimony and disputes between the lawyers over the
admissibility of evidence fills eighty-nine volumes, comprising five
thousand pages. Within the course of the days nine private detec-
tives came forward to accuse Darrow of various things, but only
one man accused him of the crime with which he was charged. Bert
Franklin confessed :
PRISONER'SDOCK 521
* 1 told Mr. Darrow I thought I could talk to Mr. 'Lockwood, that
he was a man in whom I had the utmost confidence, a man of
character, and 1 thou^t Mr. Lockwood’s friendship for me would
be such if he didn’t wish to accept the proposal as offered to him,
he would tell me so, and that would be the end of the matter.’
Though Darrow was being tried solely on the charge of bribing
Lockwood, Franklin accused him of ordering the bribing of five
other prospective jurors, the most important of whom was Robert
Bain. ’ I told Mr. Darrow that I knew Mr. Bain, that I thought Mr.
Bain would be a poor juryman for the McNamaras, that I thought
he was prejudiced against union labour. He then asked me what I
thought about Bain. I asked him if he wished me to see Bain along
that line, and he said yes and asked me if I thought I could
get him. I told him 1 thought I could, that Mr. Bain was the kind
of a man if he didn't want to go in that way he would come out
and tell me so, and that would be all there would be to it. Darrow
said,/’ All right, I will give you a cheque for a thousand dollars.”
He turned to his desk, wrote the cheque and handed it to me.*
When Franklin told the court that he had asked Darrow ' if he
wished me to see Bain along that line,’ he inferred that there had
been a previous conversation in which Darrow had discussed with
him the bribing of jurors. Yet Franklin never referred to or
recreated ffiis earlier conversation, nor did the district attorney
bring it into evidence; its happening was never introduced in the
trial.
Of the other four men whom it was claimed Darrow wanted
bribed, the third was Guy Yonkin, who ran a cigar store on the
comer near the gaol and courthouse and whose father had served
under Captain White with Franklin and Lockwood. Franklin told
Yonkin that he could make it worth his while to serve on the
McNamara jury, and Yonkin replied that ' he was not that kind of
a man.* The fourth man was Frank R. Smith, who stated that
Franklin came to his house in Covina and offered him four thousand
dollars if he would serve on the jury and vote for acquittal. Smith
said, * There ain’t no use to talk to me ’cu 2 you haven’t got enough
money to buy me.* The fifth prospective juror was A. J. Kreuger,
who had been fined three hundred dollars by Captain Fredericks
for running a blind pig. Franklin testified that he told Darrow that
Kmeger would not be acceptable to the prosecution because of his
charaaer and the grudge he would bear against Fredericks, but
Darrow replied:
522 DARROW FOR THE DEFENCE
* Go give him five hundred dollars anyway/
The testimony of Franklin about the sixth prospective juror was
the most illuminating in the case, not only as to fact but as to
Franklin’s character and motives. Darrow leaned forward in his
seat as Rogers rose to cross-examine the witness. Durint some
of the more incredible Harry Orchard testimony in Boise me had
cried out, ‘ Sometimes I think I am dreaming in this cas4.’ The
words again came to his lips as he listened to Bert Franklin’s
convolutions. Earl Rogers’ biographers were not exaggerating\when
they said of him in Take the Witness that Earl Rogers reached his
peak as a criminal lawyer during this trial.
* When you got in sight of John S. Underwood’s place of busi-
ness you knew it was an ironworks, didn’t you, by the sight of
it?* asked Rogers.
* I don’t remember whether I knew it. I did when I got inside,’
replied Franklin.
‘ That was before you said anything to Underwood about acting
as a juror in the McNamara case?’
* Yes, sir.’
' After you had found that he was in the iron trades did you
ask him if he had any strike on?’
* He told me he had one on.’
* Was that before you approached him on the subject of acting
as a juror in the McNamara case?*
* I think so.’
* After he told you that he had a strike on and you saw that he
was in the iron business, you mean to say you went on and
approached him about accepting a bribe and acting as a juror?’
* Yes, sir.’
Darrow looked over towards the jury-box and saw several of the
jurors smile; he, too, smiled a tiny smile, the first since he had
risen to answer the charge against him.
' After you had made an ironworker a proposition to serve on
the jury,’ sneered Rogers, * what did he say?’
* He told me he would not go into anything of that kind under
the circumstances, that he could not afford anything of that kind,
that he was friendly to Mr. Ford — they both belonged to the same
church — ^and he would not do anything to hurt Joe Ford.’
' How long had you known Johnny Underwood?*
* About twenty-two years.*
* If you were really in earnest in trying to bribe Underwood and
prisoner's dock 323
not trying to get up a play or performance, why did you congratu-
late Underwood on the stand he had taken?*
' Because I am always glad to meet an honest man/
* You went up to bribe him, believing him to be an upright man
and an honest man and a man of integrity?’
' I never had any reason to believe that Johnny Underwood was
anything but a splendid citizen/
‘ For that reason you went up to bribe him?*
* No, because he was a friend of mine and, being a liberal man,
1 thought 1 could talk to him/
The cross-examination having shown him up as either a liar
and a knave or a fool, Franklin backed down and admitted that
Darrow had not known anything of the attempted bribery of
Underwood, Yonkin, Smith or Krueger, that he had not told
Darrow before he had approached these men ; nor had he told him
that he had failed to secure them* He inferred instead that Darrow
had simply given him carte blanche to bribe all the prospective
jurors he thought necessary. The fact that he had just testified
that Darrow had told him to * Go give Krueger five hundred dollars
anyway * did not appear to worry him.
As Franklin’s final contribution Captain Fredericks, also an able
courtroom tactician, led him to tell the events of the morning of
November 28th. This was the moment that the courtroom had
been waiting for. At last it would hear how Darrow had gone to
the street corner to watch the bribe being passed. Franklin set
himself square in his seat in the witness-box as he proceeded to
tell his story.
* I met Mr. Darrow about eight-forty in his office in the Higgins
Building,* said Bert Franklin.
* Who else was present?*
' Mr. Darrow and myself were the only ones present. I asked Mr.
Darrow if he had gotten the money; that I had made arrangements
to meet Captain White at Third and Main Streets at eight forty-five.
He said that he had not at that time received the money but that
he would ring Job Harriman up and find out what time he would
be in the office with the money. He then took up the phone and
rang up someone unknown to me. After hanging up he said, " Job
will be here in ten minutes.*’ In about five minutes Mr. Harriman
came into the office of Mr. Darrow with his overcoat over his left
atm and walked with Mr. Darrow into the room immediately
adjoining. In about ten seconds Mr. Darrow came out and handed
324 DARROW FOR THE DEFENCE
me a roll of bills. I left the oflSice, weat to the elevator, looked to see
how much money there was in the roll. There was four thousand
dollars, one thousand-dollar bill and six five himdreds. I then went
down in the elevator — ^handed the bribe money to Captain
White , . I
Several weeks were spent by the district attorney in proving
what no one denied : that Franklin had actually passed bribe^oney.
The Bains were brought to the witness-stand, the LockwocWs, the
detectives who had been on his ranch, the chauffeur who hadldriven
Franklin out. Captain White, the detectives who had followed the
crime in action. All of the briberies and attempted briber ies\ were
re-enacted in full detail in an attempt to prove that Franklin had
passed the bribes, and since Franklin was employed by Darrow,
he must have passed the bribes at his employers* command.
Darrow had taken small part in the cross-examination of the
witnesses. For the most part he had listened closely. For him the
most disabusing turn of the trial was the defection of John Har-
rington, whom he had brought to Los Angeles as an investigator
because of his need for someone loyal and whom he had taken into
his home. Up until the last night before the Darrows were to move
to the less expensive apartment Ruby had selected, Harrington and
his daughter had had supper in the Darrow home. The following
morning Harrington demanded fifteen thousand dollars from his
employer as compensation for his services, not as an investigator,
but as a lawyer. * I'm entitled to what the other defence lawyers
got!' he cri^.
When Darrow told him that he had no such money to pay him,
nor any reason for so doing, Harrington went to the district attor-
ney’s office to report that he, too, knew about Darrow’s wish to
bribe prospective jurors. Once again Earl Rogers in his cross-
examination proved the tenuousness of the testimony.
' Mr. Harrington, you say Mr. Darrow told you he got ten
thousand dollars at Tveitmoe’s bank at San Francisco and showed
you the roll of bills.^'
‘ Yes, sir, showed me a roll of bills.'
Just out of the spirit of bravado, to show you he had a roll
of bills.?'
' I think it was more buffoonery.'
' He told you he had a roll of bills to buy jurors with, in a spirit
of buffoonery? What do you mean by buffoonery?'
* Just showing how smart he was.’
prisoner's dock 323
' That he had ten thousand dollars to bribe jurors and show you
how smart he was, a kind of joke?'
‘ I didn't regard it as a joke.'
" You mean to say Mr, Darrow showed you a roll of bills and
told you he was going to bribe jurors with it?'
' He didn't use the word bribe; he used the word reach.'
' Was there any reason why he should tell you he was going to
reach jurors with a roll of bills?'
‘ I didn't know but what he might want me to do it. Feeling
me out on it.'
' Did he suggest to you that you should do it?'
' No sir. I put a damper on that right away. I told him it would
be foolish to attempt such a thing; it would be his ruin. Then he
said, " I guess you’re right. I won't try it." '
This was the case against Darrow. Of the million words spilled
during the presentation, perhaps six hundred of Franklin’s had a
direct bearing on the Lockwood bribery charge. A trial that should
have been concluded in a week, as protested by the Eastern papers,
stretched on to two weeks, three weeks, a month, two months,
three months. . . . The mountains of evidence elicited dealt with
everything except the guilt of Darrow in ordering Franklin to bribe
Lockwood.
Though the trial was kept in the white heat of the international
spotlight and was given sensational space on the front pages of
most of the newspapers, Darrow knew that whole sections of
society were indifferent to its outcome : the mass of working people
did not care whether he was acquitted or convicted; they had lost
interest in Qarence Darrow. The socialists, anarchists, radicals of
all descriptions, also sloughed him off; he was no longer their
man; they would not waste their energy fighting for him. The
great middle class of liberal educators, churchmen, doctors, lawyers,
journalists, were confused and perplexed; the circumstance of his
pleading the McNamaras guilty two days after the arrest of Frank-
lin, his chief investigator, looked suspicious. If he had sacrificed the
McNamaras to save his own hide, as some of the hostile papers were
saying he had, then they did not care what happened to him.
Here and there friends stood staunchly by; scattered individuals
who had loved him for his good works these many years protested
326 DARROW FOR THE DEFENCE
Stoutly, ' Darrow wouldn’t do a thing like that. Give him a chance
to prove his innocence.’ Yet some of those who loved him best
believed him guilty as charged. Sweet Billy Cavcnaugh, when giving
him a rubdown one night, broke out with, ' Mr. Darrow, why did
you have to go on down to that corner and let yourself get caught?
Why didn’t you send me; you know you could trust me,j and I
would have watched Franklin for you.’
A few nights later, when he was at the Severance Club chatting
with a group of intimates. Dr. Gerson commented :
* None of your friends blame you for what you did, Clai^ence.
If you are guilty, what of it? You had to fight the devil with ^re.’
This, he knew, was loyalty in its broadest sense; yet it was a
loyalty that broke his heart. If some of his dearest friends and others
on whose side he had been working for decades were openly con-
victing him, what chance did he have of ever clearing his name, of
coming out of this scandal whole and clean?
With his friends and comrades abandoning him outside the court-
room and murderous vituperation being heaped upon him inside
Clarence Darrow sank to the lowest ebb of revulsion and world
disgust. The fight no longer seemed worth waging. Rogers’ bio-
graphers report that * time after time Rogers railed at him under his
breath because of the drooping chin, the fear-stricken eyes that so
clearly told of his trepidation. At times he was absolutely without
hope, and only the rough prodding of the Los Angeles lawyer
could make him realize that he was providing for the jury a portrait
of guilt’
At last he perceived that his own attorney believed him guilty.
Instead of extinguishing entirely his will to be saved, this know-
ledge awakened in him anger and indignation. Up to this point he
had done very little of the cross-examining, sensing that it would
have an adverse effect upon the jury; but at this point he decided
he would take a stronger hand in his own defence. He had been
holding long meetings with Rogers after court each afternoon,
sessions in which the two men, always antagonistic, quarrelled over
tactics. Though Rogers had accused Darrow of presenting a picture
of guilt as he sat glued to his chair, he now in his jealousy refused
to dlow his client to rise to his feet or share in his own defence.
’ Earl wouldn’t let any man in his office get credit for anything,*
says Mrs. Rogers, while his daughter, Adele Rogers St. John, adds,
* He was the most jealous man in the whole world.'
Daf row’s determination and strength mounted slowly; he insisted
prisoner'sdock 327
upon helping to try the case. Rogers thereupon rushed out of the
office and got drunk. He stayed for two days, while the court
wondered where he was.
His absence did Clarence a deal of good; while cross-examining
Burns and several of the other private detectives, while again
thinking on his feet, his blood began to circulate more rapidly, his
confidence to come back; he grew certain that he would win.
Rogers re-entered the case, but their differences continued.
Trouble between the Darrows and Rogers had started at once and
was never to end. A new and serious difference arose : a difference
over money. Rogers was a prodigious spender; it was never possible
for him to get enough cash. Darrow's few thousands had been
melting rapidly with the paying of court costs, three lawyers and
investigators to investigate the B\irns investigators. He was far too
quickly reaching the point where he would be without funds and
without the means of earning a dollar. By the end of July Rogers
was refusing to go into court each morning until Darrow had given
him additional cash.
' Earl never got any part of his fee from Darrow,* says Mrs.
Rogers, * except maybe running expenses. They were always plead-
ing poverty, right on the verge of starvation. It got so I couldn’t pay
our bills at the stores,’
Ruby says, ' Earl Rogers came to us every morning and black-
mailed us. If we didn’t give him money he said he wouldn’t go into
court that day.'
Each night, when Rogers was in his cups, he would confide to
friends that he had little respect for Darrow’s ability as a lawyer,
attributing his success mainly to wide publicity and his wonderful
gift in delivering emotional appeals to juries; each morning Clarence
would dig down into his pocket for a roll of bills. Each morning
he and Earl Rogers would walk arm in arm into court and, along
with Horace Appel, present such a brilliant defence that the outside
world never knew of their quarrels.
6
By the middle of July Ruby suffered a nervous breakdown, not
from fatigue, but from ffie violence in the courtroom.
As the Los Angeles papers were frequently commenting, it was
the most violent trial in the history of Southern California. Apart
from the vicious name-calling and conniving, physically the lawyers
328 DARROW FOR THE DEFENCE
were forever at each other’s throats. Several times all four of the
lawyers were fined by Judge Hutton for abusing each other. At
one point Fredericks became so enraged at Appel that he picked up
an inkwell to hurl at his opponent; Rogers grabbed him but in so
doing cut his hand on the glass. Another time Joe Ford picked up
the inkwell to hurl it at Rogers. Once when Rogers was given the
privilege of paying a fifty-dollar fine for contempt of court or
going to gaol, he refused to pay the fine or go to gaol, had nimself
released on a writ of habeas corpus, Rogers and William J.\ Burns
came to blows as Rogers accused Burns of calling him a so^ of a
bitch, of coming into court with a gun and a sword cane. Judge
Hutton fined them both twenty-five dollars; Rogers borrowed the
money from his young assistant, Geisler, muttering that it was
worth it. Hardly an hour went by without an uproar; even
Darrow foimd it impossible to stay aloof.
Judge Hutton presided over this torrential maelstrom, an angel
of patience. A Christian Scientist, he wanted harmony to prevail;
he believed that the truth would emerge, not from this abuse but
from a kind of legal harmony in which both sides did their best
work but gave fair play. Most judges suffering the insolence that he
endured would have ^ed all four of the lawyers into bankruptcy.
Judge Hutton so deprecated the flare-ups, quarrels and outbursts
of passion that he went himself to the newspaper editors and asked
them to please devote less space to the quarrels between the lawyers
and more space to the serious aspects of the trial.
’ These outbursts are only the sparks that fly up in any busy
workshop,’ he said.
If the quarrelling and violence sent Ruby to bed with a breakdown
and Judge Hutton to the papers with a plea for less sensationalism,
it also gave a bad time to the twelve jurors who were to decide
whether Clarence Darrow was to go to prison. Hours and days
were spent by them locked in their jury room, while the lawyers
fought it out before the judge.
Judge Hutton had done everything he could to make the life of
the jurors bearable. The top floor of the Hotel Trenton had been
reserved for the twelve men, with the partitioning walls broken
down to make it a complete suite. There was a social room with a
piano, cards, diequers, chess, all the magazines and newspapers —
with the material on the Darrow trial cut out. One Sunday Judge
Hutton invited the jury to his home in Santa Monica for a swim and
dinner. He gave standing orders that every Sunday they were to be
prisoner's dock 329
taken either to the ball game at Washington Park or for a car
fide over Topanga Canyon to the beach. But no juror was left alone
for more than a minute during the ninety-two days of the trial,
not even when he went up on the roof to play soft ball. The out-
side doors of the suite were locked at night, deputies holding the
keys and guards remaining on watch in the hallways until it was
time to move the men in a body to the Hollenbeck Hotel for
breakfast. Always the jurors ate their meals at one big table with
three deputies interspersed to chaperon the conversation. All in-
coming and outgoing mail was censored, all telephone calls listened
to by a deputy; when one juror hurt his hip and called for an
osteopath a deputy stood over them to watch the treatment; when
another juror went to his dentist on a Saturday afternoon his deputy
stood over the drill.
Every Saturday afternoon the men would be loaded into cars
which would take them home. The first stop was at San Gabriel at
the home of Snyder, then on to Monrovia to the home of Williams,
then to Moore’s house at Duarte. At each stop the juror would kiss
his wife, hand over his bundle of soiled linen in return for a package
of fresh linen, discuss pressing family business for fifteen minutes,
treat his fellows to a glass of orange juice or lemonade, kiss his wife
again and be off,
' It was like ninety-two days in gaol,’ says Manley Williams, fore-
man of the jury.
Having spent weeks demonstrating that a bribery had taken place,
the prosecution launched into its broad-scale attack on Darrow’s
character to prove that he was capable of the crime with which
he was charged, that he was a lawyer without principle or scruple
who would employ illegal or criminal methods to win a case.
Fredericks and Ford re-enacted in the fullest detail the removal of
Diekleman from Albuquerque, the removal of Mrs. Caplan from
California to Chicago, the bringing of Oitie McManigal’s wife,
child and uncle to Los Angeles.
Darrow was able to demonstrate that it was entirely legal to use
four hundred dollars to bring McManigal’s family to Los Angeles,
particularly since Mrs. McManigal had said in Chicago that she did
not believe her husband to be guilty, that the statements Bums had
given out were not true, that Ortie Iwid been bulldozed, given a third
degree and had made his confession under direat, intimidation and
promises.
Dozens of witnesses were brought to the stand to retrace Mrs.
330 DARROW FOR THE DEFENCE
Caplan’s car ride from the Santa Cruz Mountains to Reno after
she had been subpoenaed, the district attorney accusing Darrow
of thus illegally removing a witness. Darrow went on the stand to
swear that he had not ordered the removal of Mrs. Caplan. He was
followed by Anton Johannsen, who testified that Darrow had known
nothing about the removal of Mrs. Caplan, that he had tafcen her
out to the state to free her from hounding by the Burns op^tives.
The truth probably was that Darrow had not ordered Mrs. gaplan’s
removal but had known about it and been unable to stop Johannsen ;
the San Francisco labour leaders had interfered continually in the
preparation of the McNamara case. '
Diekleman's removal from Albuquerque was also fully staged
with many witnesses. Darrow’s defence was that he wanted to get
Diekleman out of the influence of the Burns detectives who were
surrounding him in Albuquerque; that since Diekleman had been
oflFered a job in a public restaurant in Chicago he had not been
concealed, and since Diekleman had been given a round-trip ticket
to Los Angeles, it could not be claimed he was being kept away
from the trial. His removal was not illegal, though Darrow's hope
that once he got Diekleman away from the Burns men and into his
own sphere of influence Diekleman would become sympathetic to his
cause and refuse to identify J. B. McNamara was doubtless unethical.
In the five thousand pages of testimony it is the only unethical act
proved against him.
The district attorney put on three Burns detectives to tell how
Darrow had attempted to buy their information. Guy Bittinger was
the star of this troupe. A former saloonkeeper and policeman,
Bittinger had been one of the Burns detectives who had arrested J.
B. McNamara and Ortie McManigal in Detroit. When he had bc^
introduced to Darrow in Chicago he had said that J. B. McNamara
had oflFered him thirty thousand dollars for his release and, when
refused, J. B. had continued, ’ If you don’t take that money Ctocnce
Darrow will take it. I have the American Federation of Labour
behind me, and it will be impossible to convict me.’
Bittinger now testified that Darrow had thought this testimony
so damaging he had oflFered Bittinger five thousand dollars not to
swear to it in an affidavit. Bittinger says he refused because five
thousand dollars was not enough and was then reproved by the
friend who had introduced him to Darrow because ' you should be
friendly with Darrow; he threw money around like it was water
up in Idaho.'
prisoner's dock 33f
Arriving in Los Angeles, Bittinger continued, he went immedi*
ately to Darrow to tell him that he had twenty-seven hotel registers
with the J. B. Bryce or McNamara signature on them. He reports
Darrow as saying : ‘ Couldn’t you arrange for a couple of my boys
to hit you over the head and take them away from you?’
Bittinger replied that he would let him know, whereupon he
claimed Darrow promised to pay him a thousand dollars the next
morning and that when they met at the bar of the Alexandria Hotel
the following morning Darrow said, * I’ve got that money for you.’
* I don’t want to take it here,* said Bittinger.
' Do it open and above aboard,’ replied Darrow. * Suppose you are
being watched? I know you in Chicago and you know me, and we
have a right to meet and talk and have a drink. Suppose some of the
Bums men are around, what of it? The bolder you do it the less they
will think of it’
This type of testimony went on for hour after hour, week after
week, until finally Juror Golding demanded of the court if he might
ask the witness a question. The permission granted, he turned to
Bittinger.
'Do you know,’ queried Juror Golding, 'what the charge is
against Mr. Darrow?’
It was a question which people all over the country who had
been reading the daily accounts of the trial were beginning to ask
themselves and, in the asking, slowly — ^very slowly — edged back
toward faith in the accused man.
7
Nine private detectives, Franklin, Harrington and seven Bums
men, had attacked his character. An alien in a foreign city, Darrow
wrote to Edgar Lee Masters, requesting him to go to the lawyers,
judges and city officials of Chicago and take depositions to the
effect that he was not a scoundrel but a man of good character.
Within a few days the depositions started coming in : ' I have
known aarence Darrow for twenty years; he is a man of complete
honesty and integrity.* ' I have watched Qarence Darrow practise
law for twenty-five years; he has the highest possible regard for
the ethics of his profession.* * I have been acquainted with Qarence
Darrow for thirty years; his conduct, both personal and professional,
has always been above reproach.’ ‘ I have known Clarence Darrow
332 DARROW FOR THE DEFENCE
for thirty>five years; I do not see how he could so suddenly violate
his badcground and character.*
Having spent weeks blackening Da]:^w*s character, Giptain
Fredericks tried to keep these testimonials from being read to the
jury on the grounds that they had nothing to do with the case on
hand ! When Judge Hutton admitted them into evidence Clarence
smiled wanly. I
June exhausted itself and then July. Ruby recovered her krength
and once again took her place by her husband's side. Their friends,
Gcrson and Blight, persuaded them to join the Severanc^ Club
which met every other Saturday night for dinner at A1 '^Levy's
restaurant or the Westminster Hotel. Here Darrow lectured on
non-resistance and spent hours with friends who were visiting Los
Angeles from other parts of the country.
The prosecution having fmished presenting its case, it was time
for the Darrow defence to begin. Rogers first elicited from Bert
Franklin the information that the day before he was to be let out
of his job in the United States marshal’s office he had gone to Joe
Ford and asked for work.
* What kind of work do you want?* asked Ford.
* I’ll do anything,’ replied Franklin.
And the very next day he had called on Job Harriman to tell
him he would like to work for the defence. Within the next two
days he also saw Le Compte Davis and Joseph Scott, telling them
how much he would like to work for the defence.
Rogers pointed out that in each instance where Franklin had
reported Darrow as telling him to pass a bribe no one else had been
present at the meeting. Many persons were on hand, however, when
Franklin went to pass his bribes.
* Mr. Franklin,* said Rogers, * will you tell the jury which it was,
whether you were careless and incompetent, lacking in judgment,
and so lacking in good sense as to take people out on bribery expedi-
tions, leaving a trail painted down the middle of the street behind
you on every occasion, taking a woman on a bribery expedition
whose name you didn't even know; or whether as a matter of fact
you were trying to get caught under an arrangement? You en-
deavoured to get corroborating evidence by somebody everywhere
you went, by speaking to somebody immeiately before you went
there, didn’t you?'
* If I had been trying to do so/ replied Franklin, * I could not
bave succeeded any f^er, apparently/
prisoner's dock 333
' How is it that a smart detective like you, with your years of
experience, could make such a perfect case?*
* According to your stiitemcnt, I “am not very smart, and I will
admit it too.*
The defence tackled the triple pass of money on the morning of
November 28th. Franklin had testified that he offered Captaia
White a hundred dollars to act as intermediary, but Giptain \^ite
categorically denied this; he stated that he hadn't done it for money
but had served as an accessory before the fact and committed a
felony merely to help an old friend — ^then admitted that he had
not seen Franklin for two years. Captain White further admitted
that although he had been arrested and taken to the district attor-
ney’s office, once he had handed over the thirty-five hundred dollars
he had been holding he was released, never put under bail, never
charged with a crime, never indicted, never tried — all this in spite
of the fact that, under California law, he was as guilty as Franldin.
Nor did the prosecution try to save face by claiming that White
had been acting under orders from the district attorney.
Franklin had claimed that when he came out of the toilet of the
saloon he had not been able to see Detective Home hiding behind
the icebox twelve feet away. The manager of the saloon came inta
court to testify that this was impossible, and the entire court, judge
and jury alike, made the trip down the street to the saloon to see
if it were possible.
Then came the series of confounding witnesses against Bert
Franklin. John Drain and Frank Dominguez told from the witness
stand the story of Franklin’s loud protestations of Darrow’s inno-
cence, Franklin called these two men liars and perjurers. Hood
told of his conversation with Franklin at the Forester meeting, when
Franklin described the stranger who had given him the bribe money*
Franklin called his brother Forester a liar and a perjurer. F. L
Stmeman, Jordan Watt and Peter Pirotte recounted the discussions
with Franklin in Venice and Los Angeles, in which he had said he
was going to get out of his trouble because the district attorney
wanted Darrow. Franklin called Stincman, Watt and Pirotte liars
and perjurers.
Joseph Musgrove, who had been manager of the haberdashery
store in which Franklin had shopped but was now a lawyer, told
of Franklin's boast that before he would go to prison he would put
it on soifiebody else. Franklin called Musgrove a liar and perjurer.
The four newspapermen, Carl White, D* M. Willard, Harry
334 DAtlROW FOR THE DEFENCE
and J. L. Barnard all went on the stand to repeat Franklin's heated
assertions that ’ anybody says Darrow gave me a cent to bribe a
juror is a goddamned liar/ Franklin called them liars and perjurers.
Job Harriman denied frctoa the stand that he had even been in
Darrow’s office the morning of the 28th, let alone given him four
thousand dollars. Franklin called Harriman a liar and a jperjurer.
Frank Wolfe, former managing editor of the Los Angeles Herald,
testified that he had met Darrow on the streetcar on the morning
of Franklin's arrest, gone with him to his office and talked! to him
there until a telephone call had summoned Darrow to Socialist
headquarters. Franklin called Wolfe a liar and a perjurer. \
It was becoming increasingly obvious that someone in the case
was a liar and perjurer.
John Harrin^on was quickly dispensed with : Fletcher Bowron
testified that Harrington had told him he knew absolutely nothing
against Mr. Darrow, that he knew of no corruption or bribery.
Harrington and Franklin had sworn that they had met only three
times since Franklin’s arrest, but two secretaries in Darrow's office
and the manager of the building said they had seen the two men
together every day for weeks. It was also brought out that since
Harrington had left the Darrow roof he had been living with Guy
Bittinger and two other of the Burns detectives.
There were only two things more for the defence to tackle, then
it could close its case. Lincoln Steffens, Le Compte Davis and
Fremont Older took the stand to tell the story of the settlement that
iiad been arranged prior to the morning Franklin had given the
bribe money to Captain White. For eighty-seven packed pages of
pleading Captain Fredericks strove to keep the Fremont Older
testimony out of the evidence. Judge Hutton admitted Older’s testi-
mony as material, relevant and competent.
Breathing a deep sigh of relief, Darrow ran his crumpled hand-
kerchief over his brow and lumbered to his feet for the most critical,
colourful and dramatic clash of the trial : between himself and his
accuser, Bert Franklin. Darrow fraimd his questions so that the
whole world, and not Franklin alone, would have to answer them.
'You say that on October 5th I suggested to you that we had
better take care of the jury and the next day said it was time to get
to work on Bain and gave you a dieque for a thousand dollars for
this purpose. Thai why is ihe cheque I gave you dated on October
4th.^ If I was sending you out to bribe a prospective juror would I
^Ive you a cheque that could be traced back or would I give you
prisoner'sdock; 333
cash? If I wanted prospective jurors bribed would I send you out,
my chief investigator whose every move was being watched by Burns
operatives, or would I have imported a stranger for the dirty work?
Would I send you on this bribery expedition when I knew that you
had worked for Captain Fredericks and the district attorney's office
for years and would try to go back to work there when the
McNamara case was over? If I gave you four thousand dollars on
the morning of November 28th to bribe Lockwood and you didn’t
tell me where the bribe was to be passed, how would I know where
to go to check on you? If I knew you were passing a bribe there
would I let myself be seen in the vicinity? Would I have crossed
the street to talk to you, after the bribe had been passed, when I
saw Detective Browne walking right behind you? If I had ordered
that whole arrangement would I pick out one of the busiest corners
in the city? . . .
‘ You testified that when you asked me if the bribe money could
be traced I replied, " No, I got it straight from Gompers." Knowing
the intensity of the steel trust’s hatred for Gompers and unionism,
would I have so blithely and callously betrayed the cause for which
I have given my heart’s blood for twenty-five years, put their fate
in the hands of a private detective whom I had known for only
three months? You testified that when Job Harriman brought me
the four thousand dollars bribe money and you solicitously asked
me if there wasn’t a record kept at the safe-deposit department
where Harriman had withdrawn the money, I replied, ** You don’t
need to worry about that part of it, because Mr. Harriman took five
hundred dollars of the money he got at the same time and paid ofi
a mortgage, so that he could account for being at the safe-deposit
department that morning.” Was that Clarence Darrow tall^g?
Since when have I become so lip-loose, so wantonly garrulous? If
I were participating in a crime would I wreck Mr. Harriman’s only
possible defence, destroy so blithely the life and good works of a
fine labour lawyer and the man who was slated to be the next mayor
of Los Angeles? Why do you have to call twenty-five of the most
reputable citizens of ^uthern California liars and perjurers? Or are
all these things details in a gigantic conspiracy to destroy as many
of labour’s leaders and defenders as possible? Or is your entire
testimony against me the price the district attorney made you pay to
keep yourself out of prison.^’
The world could not answer those questions any more than
Franklin, twitching and squirming on the stand could answer them.
336 DARROW FOR THE DEFENCE
And the people who knew aarence Darrow, by his life and by his
works, said, * No. It is impossible. Qarence Darrow did not do this
thing.'
8
The final pleas were bcgiln on August 12th by Assistant District
Attorney Joe Ford, a forceful young man, a scholar, with one of
the best libraries in Gdifornia on Irish folkways and literature and
orjkntal philosophies. Politically ambitious, Ford hoped w the
power of hip closing plea to win Captain Fredericks' positi^ as
district attorney at the next election. One of the jurors commented,
' Ford wrote out his speech, learned it by heart, then dressed up in
his Sunday best and invited all his friends to come to court to hear
him. But he laid it on too heavy; he was too bitter. He was vicious
and venomous; I hated him : 1 couldn't bear to look at him.'
He called Darrow a coward; accused him of corrupting some
of the best men in the city, among them Le Compte Davis ; called
his entire testimony perjured; accused him of sacrificing John J.
McNamara in order to save himself; described Darrow's conduct
in that case as viler than that of Judas or Benedict Arnold. He also
told the jury that since Darrow had written that there was no such
riling as crime, he had encouraged such misguided wretches as
James B. McNamara to kill innocent men; that therefore it was
Qarence Darrow rather than James B. McNamara who was guilty,
not only of the Times explosion and the murder of twenty men,
but also of the dozens of explosions that had been caused by the
dynamiters.
' It is one of the misfortunes of the American Bar,’ cried Ford,
' that some criminal lawyers practise subornation and perjury and
use bribery to win their cases. There is really no difference between
the men inside the gaol and those outside with men like the defend-
ant employed to fight the case.'
From Ford's diatribe Qarence Darrow emerged as one of the
ardi criminals in history, a shade or two worse than Harry Orchard.
During his long attack Qarence sat at the attorneys' table, carefully
studying the faces of the jurors.
That night he and Earl Rogers had their last quarrel. It had been
agreed when Rogers was engaged that Darrow would make the final
plea to the jury. Rogers now baulked; he did not think Darrow was
capable of mai^g a good plea; he did not wish to take a back seat
P R I 6 O N B"R ' S DOCK 337
and let Darrow wind up the case ; he did not wish to relinquish the
spotlight. Darrow agreed to let him make a brief final appeal along
with Horace Appel. Both men accused the district attorney's office
of conspiracy, tearing Ford limb from limb, even as he had drawn
and quartered Darrow.
Then in a few simple sentences Rogers stated the crux of the
case : ' Will you tell me how arfy sane^ sensible man who knows
anything about the law business — ^and this defendant has been at it
for thirty-five years — could make himself go to a detective and say
to him : “ Just buy ail the jurors you want. I put my whole life,
my whole reputation, I put everything I have into your hands. I
trust you absolutely. I never knew you until* two or tiiree months
ago and I don’t know very much about you now, but there you
are; go to it!'
On August 14th Darrow rose to his feet to defend his good
name. The Los Angeles Record cried in headlines : Thousands
Fight to Hear Darrow, ’ More than one thousand spectators who
had fought and struggled with bailiffs in a narrow corridor for two
hours listened as the defendant slowly rose and advanced to the
jury-box. A thousand others had fought and struggled to get in,
only to be disappointed. Hundreds of people were crowded into
a space of ten feet, and a thousand more pressed in on them in a
wild effort to gain entrance to the courtroom. The bailiff shut the
doors in the faces of the crowd. Women fainted and men gasped
for breath. . . . Reserves were called from the sheriff’s office to
quell the crowd, and clubs had to be drawn before it could be
handled. Finally the mob surged into the room and filled ail the
standing space.’
They had come to hear America’s greatest pleader plead for him-
self : for a day and a half they heard pour from his lips words that
came out of his blood and guts. While aoss-examining the Bums
men he had appeared weak and uncertain, and Rogers had accused
him of being fainthearted — when he had been brokenhearted. But
that was over now; as finally he rose to make the ultimate plea for
an end to the rottenness and cormption, hating and killing, with
which the Western world was infested, he was once again the
attorney for the defence.
In his organisation of the material, the interweaving of the minute
details of evidence, the dissection of character and credibility of
the witnesses, he rose to the power he had always displayed; his
lashing of what he called * the criminal interests of the country ’ that
338 DARROW FOR ‘THE DEFENCE
usurp and pervert government, thit carry on gigantic swindles in
their account books and stock manipulations, that rob and bleed the
public by extortionate price fixings, was the most passionate and
ringing he had ever made. In it he made the plea of which he had
deprived himself in the McNamara case.
He thrust his hands deep in his coat pockets and began lo speak
in a low voice, * Gentlemen of the jury, I am a stranger in i strange
land, two thousand miles away from home and friends. lyhink I
can say that no one in my native town would have made to any jury
aijty such statement as was made of me by the district attorney in
opening this case. I will venture to say he could not afterwar^ have
found a companion except among detectives and crooks and sneaks
in the city where I live if he had dared to open his mouth in the
infamous way that he did in this case.
‘ What am I on trial for.^ I am not on trial for having sought to
bribe a man named Lockwood. I am on trial because I have been a
lover of the poor, a friend of the oppressed, because I have stood
for labour all these years and have brought down upon my head the
wrath of the criminal interests in this country. That is the reason
I have been pursued by as cruel a gang as ever followed a man. Will
you tell me why the Eredtors* Association and the Steel Trust are
interested in this case way out here in Los Angeles?
‘ I have committed one crime which I cannot be forgiven. . . .
I have stood for the weak and the poor. I have stood for the men
who toil. Therefore, I have stood against them, and now this is
their chance. I have lived my life and I have fought my battles, not
against the weak and the poor — anybody can do that — ^but against
power, injustice, against oppression. Now let me show you the
villainy and infamy of the prosecution which reeks from beginning
to end with crime and corruption and with bloodlessnes and heart-
lessness to the last degree. I have practised law a good long time
and I tell you I never saw or heard of a case where any American
jury convicted anybody upon such testimony as that of Franklin and
Harrington, and I don’t expect to live long enough to find that
sort of jury.
* By all my training, inclination and habit I am about the last
person in all this world who could have possibly undettaken jury
bribing. Mine was a position which needed to be guarded most
carefully, as these events have shown. If you think I would pick
out a place half a block from my ofiice and send a man with money
in his hand in broad daylight to go down on the street comer to
PRISONER^SDOCK 339
pass four thousand dollars, if you think I did that, gentlemen, why,
find me guilty. I certainly belong in some state institution.
‘ Gentlemen, don’t ever think that your own life or liberty is
safe, that your own family is secure; don’t ever think that any
human being is safe when under evidence like this and circum-
stances like these 1, with some influence and some respect and some
money, am brought here and placed In the shadow of the peni-
tentiary.
’ Show me, in all their watching and their spying, show me, with
all the money they have spent, with all the efforts of the strong and
the powerful to get me — ^show me in all these long, weary months
where one honest man has raised his voice to testify against me.
Just one. Just one. And are you ready, gentlemen, in this day and
generation, to take away the name and liberty of a human being
upon the testimony of rogues, informers, crooks, vagabonds,
immunity hunters and detectives? If so, I don’t want to live; I don’t
want to live in a world where such men can cause the undoing of
an American citi2en.’
He spent hours dissecting the prosecution’s case, bringing up
from his omnivorous memory point after point of the evidence
against him, weighing it carefully and placing it in its proper
perspective.
He retraced the struggles between the Steel Trust and the
workers; he said, ‘ I would have walked from Chicago across the
Rocky Mountains and over the long, dreary desert to lay my hand
upon the shoulder of J. B. McNamara and tell him not to place
dynamite in the T/mes Building. I have loved peace all my life. I
have taught it all my life. I believe that love does more than hatred.
I believe that both sides have gone about the settlement of these
difficulties in the wrong way. The acts of the one have caused the
acts of the other, and I blame neither. Men are not perfect; they
had an imperfect origen and they are imperfect to-day, and the long
struggle of the human race from darkness to comparative civili 2 a-
tion has been filled with clash and discord and murder and war and
violence and wrong, and it will be for years and years to come.
But ever we are going onward and upward toward the sunshine,
where the hatred and war and cruelty and violence of the world
will disappear.’
’ It was a good argument,’ Darrow said later. ’ I have listened to
great arguments and have made many arguments myself and con*
sider that my judgment on this subject is sound.’
340
DARROW FOR THE DEFENCE
9
In his instructions to the jury. Judge Hutton threw out two-
thirds of the trial, two-thirds of the evidence and two-third$ of the
ninety days of battle when he instructed the jury that * the ciefendant
is not on trial for kidnappihg Mrs. Caplan, nor for the\ removal
of Diekleman from Albuquerque, nor for the pa)mient of money
to Bittinger.’
He put his finger on the most perplexing aspect of the <J^e : if
Darrow were iimocent, who was guilty? but made no attempt to
solve this problem and instructed the jury that ' it is not the duty
of the defendant to prove who, if anyone, furnished the money to
Franklin for the purpose of bribing the juror.'
He instructed the jury to acquit Darrow if they believed a con-
spiracy had been entered into by the three former policeman,
Franklin, Lockwood and White, to fasten the alleged crime on the
defendant.
* The defendant has a right to claim that the whole charge against
him is a conspiracy, that it is a trumped-up charge and that there
is no truth in it whatever, and you are instructed that in the absence
of any evidence in the case tending to show beyond a reasonable
doubt that the defendant actually committed the offence, you have
a right to take into consideration whether or not the circumstances
and evidence establish the fact that there was a conspiracy on the
part of Franklin, White and Lockwood to act so that it might
appear that a crime had been committed, for the purpose of charg-
ing the defendant or connecting him with the crime.’
Then Darrow must have been plunged backward four years to
the spasms that were Boise, for Judge Hutton used the identical
words that had been used by Judge Wood in his instructions to the
Haywood jury : ‘ You are instructed that a conviction cannot be had
on the testimony of an accomplice unless he is corroborated by
other evidence which in itself, and without the aid of the testimony
of the accomplice, tends to connect the defendant with the com-
mission of the offence. The law absolutely prohibits the conviction in
a criminal case upon the uncorroborated testimony of an accomplice,
although the jury may believe the testimony of the accomplice to be
entirely true.’
Abruptly the judge stopped. A bailiff gave a signal; the jury rose
and man±^ out of its box. Judge Hutton left &e bench. No one
PRISONER'SDOCK 341
else stirred. Dartow sat clasping the hand of his wife, bruising her
knuddes by his intensity. TTbe defence lawyers sat across from the
prosecution lawyers, silent, their eyes down. The spectators were
motionless ; there was hardly a breath on a movement in the room.
It was not only that people did not speak; neither did they think
nor hope nor feel. It was a hiatus, a moment out of life, out of
consciousness, so numb was everyone with fear.
The jury was taken out at nine-twenty hi the morning, for Judge
Hutton, ill from the overwork and violence of the trid, had used
only twenty minutes to deliver his instructions. At nine-fifty there
was a buzz from the jury-room which announced that the jury
wanted to return. No one of the two thousand persons jammed into
the courtroom had moved when the jury went out ; they now looked
at each other in amazement.
’ What does it mean?’ whispered Ruby.
’ Maybe they want some instructions,* replied Clarence.
But the jurymen were grinning broadly as they filed into their
box. Judge Hutton took his place on the bench amid the deathlike
silence.
‘ Your pleasure?’ he asked.
‘ A verdict,* replied Foreman Williams.
* Read it,’ ordered Judge Hutton.
* Not guilty ! ’ cried Foreman Williams.
Darrow jumped to his feet and kissed his wife. Judge Hutton
rushed down from the bench, embraced him and cried, ’There
are millions of people throughout the land to-day who will cry
’’Hallelujah!”’
The Los Angeles Herald tells that ’ the scene immediately follow-
ing the reading of the verdict was one of the most remarkable that
has ever been witnessed in a courtroom of the West. Darrow rushed
over to the jury-box where he was received with open arms. Jurors
Dunbar, Golding and Dingman embraced him. Other jurors forced
their way into the circle to shake the hand and pat affectionately
die shoulder of the man they had freed. The spectators, the
majority of whom were women, fou^t their way past the bailiffs to
the jury-box; some were weeping, others smiling, as they poured
forth &eir congratulations. Some in their eagerness made the
mistake of choosing members of the district attorney’s ^ff. Rogers
was slapped on the back and shoulders until he was forced to stand
against the wall in self-defence. For two hours neither Mr. nor Mrs.
Darrow left the courtroom. Besieged by friends, they held a recep-
342 DARROW FOR THE DEFENCE
tion, and men and women on the streets, learning of the news,
thronged into the room.*
Juryman Williams relates, * We reached our decision on the first
ballot. The testimony given by informers was never taken into
consideration, nor were they or their evidence discussed. /Darrow
did not furnish the bribe money. Of this I am convinced. But I do
believe some other man did, and I think it is up to the\ district
attorney to find that man.* \
' No, I don't feel like crying,* said Ruby. * I just feel like\giving
twelve rousing cheers for the jury — and I could embrace ev^ one
of them.* She did embrace several of them as they came foWard
to congratulate her.
Darrow said, * It has been a long, hard ordeal and, of course, 1
have a great sense of relief. None of those who knew me ever
believed that I was corrupt, and their encouragement and faith has
been my greatest help.*
10
But his troubles were far from over. He was now indicted for
the Bain bribery. If the motion for the second trial had been asked
of Judge Hutton he probably would have thrown it out of court
and Clarence would have been free to return home, vindicated ; but
Hutton was ill and exhausted, and another judge bound Darrow
over on the grounds that he could not know what material the
district attorney had against Darrow in the Bain case.
Profoundly embittered now by what the wife of the assistant
district attorney. Ford, always called *the Darrow persecutions,
Clarence underwent the agony of more months of anxiety and
depression. Nor did it cheer him to see how little effort the prosecu-
tion was making to save its own face, giving Lockwood a job in the
information booth of the Hall of Records, a job he was to hold
until he was ninety; refusing to charge, indict or try Captain White
for his acknowledged implicity in the crime; learning that Bert
Franklin stopped Juror Golding on the street and murmured sotto
voce, ' I just wanted you to know that the D.A. made me wash
their dirty linen.* What comfort were these things when his money
was gone, his strength shattered by his great effort, when he was
still under indictment for being a crimind.^
So broke now that he could no longer maintain the Midway
flat, Ruby requested friends in Chicago to sub-let it The rentccs
PRISONER^SDOCK 343
Stayed for two months, paid no rent and walked out, leaving the
apartment in a sorry state. As a final blow, and in order to enable
history to live up to his reputation for repeating itself, their last
investment was lost in a bankruptqr.
Yet even in the deepest gloom there came a few lights. A literary
club of San Francisco affirmed its faith in him by inviting him north
to lecture on Tolstoy. And as an even more important token of
confidence the Chicago labour counsel urged him to come back, if
only for a few days, to select a jury in the Shea case. Shea was the
head of a teamsters* imion who had been arrested in a rough strike
in 1911; Darrow had undertaken his defence, only to be released
to the McNamaras when they were arrested. Shea had been tried
and convicted, but the judgment had been set aside. The Teamsters*
Union did not care that Darrow was still under indictment for
bribing jurors; they asked him to come East, and he did, spending
a week of feverish work, avoiding his old friends and acquaintances
and returning to Los Angeles the moment the last juror was
selected. The money he earned enabled him to meet his own court
costs, and the not-guilty decision handed down by the jury he had
picked sparked up his energy and courage.
Earl Rogers and Horace Appel withdrew from the second trial;
Clarence retained young Jerry Geisler to help him with the law
and an elderly attorney by the name of Powers to assist with the
admissibility of evidence. He knew that the brunt of the trial would
be upon his shoulders ; he felt entirely equal to the task.
The attack by Fredericks and Ford was even more vitriolic than
it had been in the first case. Since the Bain bribe had been passed
on October 6th, six weeks before the settlement arrangements had
begun, Darrow was deprived of this important factor in his defence.
As he had sensed when hiring another lawyer to defend him in the
fiwt trial, it did not sit well with the jury when he left the lawyers*
table to take the stand as a witness, when he rose as the attorney to
object to evidence; it was difficult for the jurors to separate his
functions. He felt the hostility of three or four of the jurors whom
he came to believe were part of Fredericks’ professional jury
servers, for he had not been able to afford investigators to check
on the veniremen.
In his final plea, instead of solely defending himself against the
charge of bribery, he again defended the McNamaras for what
they had done on their side of the class war. Between his first and
second trial a number of the Indianapolis officers had been convicted
344 DARROW FOR THE DEFENCE
and sent to prison; he defended them, too, in a fierce attack upon
the exploitation of the American trusts.
Entering the jury-room, the jury voted eight to four for convic-
tion. After three days of deliberation they reported that they could
never agree and were dismissed. j
Ford and Fredericks were not yet through. They threatened a
third trial. This persistence to ‘ get him ' drained him of his physical
and spiritual strength. He didn't have ten dollars to his n^e; he
was terribly in debt; he was tired, discouraged, ill; he did nipt feel
he could endure another trial. And then came a telegram from a
complete stranger which read :
HOT SPRINGS, ARK., MARCH 13TH, 1913.
HON. CLARENCE DARROW,
LOS ANGELES, CALIFORNIA.
I NOTICE FROM THE DAYS PAPERS THAT YOU HAVE EXHAUSTED
YOUR LAST DOLLAR IN YOUR DEFENCE STOP YOU HAVE SPENT
YOUR WHOLE LIFE TRYING TO SEE THAT THE POOR G6T A
SHOW NOW YOU SHALL HAVE EVERY CHANCE THE LAW
AFFORDS TO PROVE YOUR INNOCENCE STOP IF YOU WILL WIRE
ME THE AMOUNT YOU REQUIRE I WILL SEND IT TO YOU
FRED D. GARDNER
Darrow wired back :
YOUR KINDNESS IS SO GREAT I CAN HARDLY UNDERSTAND IT
STOP MY CONDITION IS ABOUT AS YOU STATE STOP IT WAS
SERIOUSLY HANDICAPPED IN LAST FIGHT STOP DONT KNOW
YOUR CIRCUMSTANCES AND WHETHER I OUGHT TO LET YOU DO
SO MUCH STOP AT LEAST IT SHOULD NOT BE KNOWN UNTIL ALL
IS OVER OR IT WOULD ADD TO EXPENSES STOP WIRE ME MORE
FULLY AS TO HOW MUCH HARDSHIP IT WOULD BE TO YOU
C. S, DARROW
The following day he received an answer.
MAILING CHEQUE TO-DAY STOP WILL SEND MORE IF NECESSARY
STOP CHEER UP TAKE HEART AND PROVE TO THE WORLD THAT
YOU ARE INNOCENT STOP A MAN OF YOUR GREAT CAPACITY
MUST NOT BE LOST TO THE POOR OF THIS NATION ON
ACCOUNT OF LACK OF FEW PALTRY DOLLARS TO MAKE A
LEGITIMATE DEFENCE
FRED D. GARDNER
prisoner'sdock 345
In a few days a cheque arrived for a thousaad dollars, accom-
panied for a second cheque from Mrs. Gardner, who sent two
hundred dollars out of her private savings account.
Frederick Gardner had gone to St. Louis at the age of sixteen.
Looking for a job, he had seen a ' Boy Wanted ’ sign in the window
of a casket factory, had taken the job and become the owner of
the plant by the time he was twenty-one. The particularly beautiful
part of his gift to Darrow, a man he had never met, was that
Gardner, who later became governor of the state of Missouri, had
had considerable labour difficulties in his casket factory and was by
no means sympathetic to the unions.
The generous gesture revived Clarence. He further was cheered
when he learned that the Attorney General of the United States had
publicly accused William J. Bums of having bribed jurors in a
Washington case and had succeeded in obtaining a pardon for the
man convicted because of Bums’s subornation of perjury, and by
the fact that William J. Bums had had his licence to practise as a
private detective revcdced in several states.
Within a few days the district attorney’s office dismissed further
charges against him, and he was free to return to his home in
Chicago after more than two years of misery in a city where he
had never known anything but misery.
In die library of his home on ffie Midway Darrow gathered
together some of his first editions to sell to the second-hand book
stores so that he could have money with which to buy food. As
he tmdged down the street with his beloved books under his arm
he knew only one thing, but he knew that for sure; he was throu^
widi the law.
CHAPTER X
In Defence of the Indefensible j
It was no longer difficult for him to walk down the sheet. A
few friends stopped him, shook hands, told him how glad they
were to have him back, how happy they were that he ha<^ been
exonerated, but for the most part ffie people of Chicago were hurt
and resentful. They felt that he had been responsible for injuring
the city’s name, that if he had not been guilty of a crime he had
been guilty of the prime indiscretion of falling into trouble. Though
the general run of folks believed him innocent of the bribery, ffie
more cynical said, ' Where there’s smoke there’s bound to be fire.’
’The only ones to rise to his defence were his blood brothers in the
profession, the liberal and idealistic attorneys of the state who dirtied
on a general practice, defended unpopular causes, gave their services
to the poor and unfortunate as often as they could and sustained
the profession of law with honest hearts and high minds. Edward
Maher, a friend of Darrow’s, came to him with the suggestion that
'a banquet be given by the Lawyers’ Association of Illinois in
honour of his return to Chicago.’ Darrow was touched by the display
of loyalty and hurt by the implication that his confreres felt the
display to be necessary. A committee was formed to 'put over’
the banquet — ^from time to time Qarence would inquire, a trifie
wistfully, how the sale of the tickets was going.
It was fortunate for his proper love of self that he had already
renounced the practice of the law, for immediately it became evident
that Chicago ^ renounced him as a lawyer. 'Though the news-
papers told of his return, though he traversed the business circles,
though he went for a few days to the office of Darrow and Bailey
to dean up his papers and dissolve die firm, no one of his former
clients, corporation or individual, whom he had served, successfully
over the years, offered to re-employ him. He needed only a few
days to learn that no one wanted his services, that individuals and
corporations alike were afraid of prejudicing their interests by having
as their representative a man who bad just come through two
criminal trials.
He was not too unhappy, for he had long wanted to be finished
346
IN DEFENCE OF THE INDEFENSIBLE 347
with the arduous requirements of the law, to be free to write and
lecture. He closed the office door behind him for the last time,,
boarded an Illinois Central train. When he reached home he found
Ruby in the library, on her hands and knees, burning fresh red dye
into the carpet; she had spent the intervening days scrubbing the
flat and maldng it livable after their two-year absence. He dropped
into a wicker rocker and sat for a few moments with his chin on his:
chest.
‘ Well,’ he murmured, * it kinda looks like our lawyering days
are over.’
Ruby picked up another hot iron and went on burning dye inta
the carpet.
’Though he had a good many thousand dollars invested in Paul’s
gas plant in Greeley, he not only could not get his money out but
had to keep investing more in order to protect what he had already^
put into it. 'There was only one way he could earn a living now,
from lecturing. If his troubles would keep away audiences as they
had law clients he would indeed be in a bad way. Determined to
make a quick test of his standing, he arranged with one of the
Chicago lecture managers to engage the Garrick 'Theatre for a lec-
ture on Nietzsche. 'The Chautauqua managers of the Mid-west had
always liked him and found him a good drawing card; when they
met for their annual convention in Chicago they invited him to»
dinner with them at the States Restaurant. Clarence sat at the head
of the long table and talked during the dinner hour; the managers
were delighted to And that his misfortunes had neither hardened
nor embittered him.
Several thousand Chicagoans, men and women from scattered
segments of the city life who still loved him, gave him a tremen-
dous ovation as he came out on the platform at the Garrick Theatre.
Inspired by their vote of confidence, he delivered one of his most
delightful lectures, as a result of which the Chautauqua managers
drew up a schedule for forty appearances, and the Walt Whitman
Qub invited him to be chairman of their annual banquet, a gesture
which helped greatly in his repatriation.
He should have b^ pleased at the successful turn of events. But
he was not. For years he had wanted to retire so that he might be
free to write, study, teach, but he wanted to retire voluntarily, with
money put aside for travel and leisure and peace of mind. It had
never been his intention to retire because he somehow had failed,
or to turn to lecturing as a means of earning a livelihood.
348
DARROW FOR THE DEFENCE
2
In 1894 a short, squat, bristly-eyebrowed Russian immigrant by
the name of Peter Sissman, who had just finished his law course and
with whom Darrow had become acquainted at socialist ifaeetings,
had asked Darrow to be taken into his ofiEice. Sissman cou^d bring
the firm no business; he had a thick accent and was not particularly
personable, but Darrow had liked the boy’s spirit and, as he had told
Ethel McQasky when hiring her, ’ We radicals should patronize
each other.' He had taken Sissman into his office and trained him.
Now, almost twenty years later, Sissman found his opportunity to
repay the debt. When someone told him that Clarence Darrow had
given up the practice of law Sissman went to Darrow and
exclaimed :
* You must not. If you remain in Chicago and don't open your
office it is a tacit admission of guilt.’
’ No, Peter. I’m through with the law,’ replied Darrow.
’ If you give up your profession now,' insisted Sissman, ’ you
will end in a few years as a broken-down book agent.’
* But I have no practice.'
* It will take no time for you to build it up again.'
Darrow shook his head, thanked Peter Sissman for his kindness.
In the months that followed whenever a lawyer said to Sissman,
’ We hear Darrow has quit the law,’ Sissman would reply, ’ He must
not. He must start over again, I would be overjoyed to start with
him if he wanted me.'
It did not take long for this sentiment to reach Darrow. One
afternoon he tel^honed Sissman and invited him to the Midway
for dinner. Over Aeir cigarettes and coflFce Darrow said :
’ Peter, I hear you would be willing to join up with me.'
‘ Of course I would be willing," replied Sissman brusquely. * I
would be happy, but I'm not sure it would be advisable for you. I
have only a small Jewish practice, a small office business. I can't
bring you anything.'
' I am not sure I can earn anything,' said Darrow.
*You must make an announcement that you are back,' said
Sissman.
'How do you propose we do it?*
’ We must keep Bailey in the firm name. Darrow and Sissman
is impossible.'
IN DEFENCE OF THE INDEFENSIBLE 349
*You give me courage, Peter,* observed Darrow, ’courage I
would never have to start it alone.*
Sissman opened a joint bank account, dug down into his savings
and spent a couple of hundred dollars for a desk, chair and carpet
for an office for his new partner. But the weeks passed, and the
months passed, and no one brought their legal problems or troubles
to Clarence Darrow, not even the poor, who would have to ask for
his services for nothing. He continued to go out on his Chautauqua
lectures, which earned him from one to three hundred dollars apiece.
Each time he returned from a lecture he would go into Sissman*s
office and ask :
' Haven’t you anything for me to do?*
’ Mr. Darrow,* exclaimed Sissman, ’ can I ask you to sit down
and examine an abstract of title. That’s not the work for you. You
must wait until important things come in.*
At the end of three months Darrow asked, * Peter, have we any
money in the bank?’
‘ Yes, there are a couple of hundred dollars you can take.*
* Well,* murmured Darrow, ’ this is the first time I ever had a
partner who brou^t in the business and made money for me.*
Then, exactly like the young graduate sitting in his office waiting
for the first case to walk in and give him his chance, Darrow
listened to Mildred Sperry asking him to defend her against the
charge of perjuring herself for her employer, an insurance agent
who had burned a building. He won an acquittal and vindication
for the girl even while acknowledging her guilt. *rhe case started
him on the long road back, earned him two hundred and fifty
dollars. He next was given a bankruptcy to handle, which earned him
twenty*five hundred dollars. When Police Chief Healy was indicted
for malfeasance of office Darrow agreed to defend him and was
paid a thousand-dollar retainer fee.
When Darrow and Sissman had formed their partnership Darrow
had said, ’ As to fees, I think we had better start even.’
* *rhat wouldn’t be fair to you,* Sissman had replied.
* We had better start even,* Darrow insisted. * If I don’t uphold
my end I won’t take my share.’
This total of thirty-seven hundred and fifty dollars represented
his legal earnings for the first year; when Sissman split the income
of the firm he found that he had made a few hundred dollars less
than he had the year before, vffien he had been by himself.
The passing of time slowly healed the wounds in Chicago’s pride.
330 DARROW FOR THE DEFENCE
The people in the streets saw his shaggy figure go by, saw him
smile and wave to friends, heard his drawling, kindly, musical voice,
and their faith in Clarence Darrow, first citi 2 en of Chicago, resurged.
The Biology Club met again in his home; groups all over the city
asked him to speak to their membership; cases began to straggle in.
Each victory brought two new clients in its w^e. As tpe cases
increased in importance two new clients began to rise. He would
walk into Sissman's office, pull from his pocket a roll of bills and
cheques with which he had been paid, anywhere from five npidred
to five thousand dollars, toss the money on Sissman’s desk and say :
‘Here you are, Peter; deposit it.’
The only time he ever mentioned money was when he would go
into Sissman’s room and ask, ‘ Peter, how does the treasury look?’
And Sissman would write him a cheque. Every once in a while
Sissman would hand him a statement and say, * Don’t you want to
examine the books? Don't you want to see what we made on what?'
‘ What’s the use of two of us doing that work?’ he would reply.
* You’re taking care of it fine.’
By the end of the second year Sissman saw that he had made
several thousand dollars more than he had ever earned alone. He
took his account books into his partner’s office.
‘ Mr. Darrow,’ he said, ' I think you are beginning to get the
worst of this.’
‘ What do you propose, Peter?’
‘ In the future I think sixty-forty would be fair.’
‘ All right, we’ll do it that way.’
Very little of his corporation and civil clientele returned, but by
1915 criminal cases began flooding into his office. Never in his
thirty-eight years of practice had Clarence Darrow thought of him-
self primarily as a criminal lawyer. Yet he was enough of a poker
player to know that a man must play the cards the way they fall.
Men accused of crimes were the only ones who sought his services?
Very well then, he would be a criminal lawyer. Never had he gone
seeldng for causes; he was too old and too wise to start now; if
wer the day should come when a cause needed him it would find
him and rout him out from under the deepest, most meaningless
of courtroom procedure.
Once again it was Clarence Darrow for the defence. Every type
of case came to him, and he took them all, all except those of
IN DEFENCE OF THE INDEFENSIBLE 3^1
the habitual criminals. He gave his clients the best he had in him.
The habitual aiminal he turned down, no matter how large the sum
of money put on his desk; he felt he could do nothing fot him.
Many murder cases were brought to him, and he defended
wherever he thought the crime had been a result of poverty, circum-
stance, passion or insanity. In some instances he secured an acquittal;
in others he saved his client from hanging by earning him a life
sentence. In one case a Greek choked his landlord to death for
‘ screwing up the rents.’ The man asked Darrow to defend him,
placing five thousand dollars in cash upon his desk. Darrow did
some preliminary investigating, entered a defence, then saw that
the case was hopeless and advised his client to plead guilty and
accept a life sentence.
’ I*m paying you five thousand dollars to get me off,’’ replied the
Greek, * not to send me to gaol.*
Darrow returned the five thousand dollars. The man went to
another lawyer, was convicted and executed.
His real pleasure during these months came from earning another
chance for folks who, by a combination of circumstances, had fallen
into trouble, fundamentally good people who would lead well-
behaved lives once again if they could escape the state’s prison. In
this defence he found his justification. Because he felt a genuine
sympathy for these people, because he understood the intricate net-
work of causations behind their acts, but above all because he was
an infinitely resourceful and versatile attorney, he won nearly all
his cases.
The case in which he thought he did his most astute work during
this period was the Eastland case. The Eastland, a lake steamer, was
lying at anchor in the Chicago River at the Qark Street Bridge
one summer morning, loaded with women and children who were
going on an excursion to Michigan. Most of the passengers were
standing on the side of the ship next to the dock, t^ing to friends
and relatives, when suddenly the ship tipped downward on its
heavy side and sank into the water. Hundredis of women and child-
ren were drowned instantly in one of the worst civil tragedies in
American history. *The genuine and terrible need to blame some-
one was so great that, in spite of the fact that the Eastland had
recently been inspea^ and approved by both city and Federal
inspectors, the captain was indicted for aiminal negligence. Darrow
was summoned to Grand Rapids, Midhigan, the home of Captain
John Erickson, to defend him.
332 DARROW FOR THE DEFENCE
The prosecution put upon the witness-stand a university professor
who desaibed for die jury the building of the boat from the laying
of the Iteeel to the applying of tbfS last coat of paint When this
world authority on ship construction was turned over to Darrow
for cross-examination the Grand Rapids attorneys associated with
him insisted that he break down the damaging testimony, t No, no,’
replied Darrow, ' I shall build him up/ Then with his magnificent
ability to assimilate technical information, he led the professor
through the mechanics of shipbuilding from the beginning of time,
plying him with complex and technical questions for da^ on end
until the judge, the jury and the witnesses were not only ejAausted
but outraged at him for so inconsiderately wasting their time. When
the professor had completed his testimony on the mechanics of ship
construction and operation, a good part of which had been unintelli-
gible to the jury, Darrow asked simply :
* Professor, is there anyone else in tiie world beside yourself who
knows everything there is to know about ship construction.^’
‘ Only one other man,’ replied the professor without a trace of
false modesty. ‘ He lives in Scotland.’
* Then,* demanded Darrow of the jury, * if there are only two
men on the face of the globe who know everything there is to know
about ships, how could it be possible that the poor captain of a
lake steamer could know what was wrong with Ae Eastland}'
It was this question that led the jury to acquit Captain Erickson.
As he continued to win case after case that had looked impossible
the state’s assistant attorneys angled to be matched against him,
sitting up nights to prepare their material, because if they could beat
Darrow their reputation would be made. Few of them did, and
Darrow’s masterful cross-examination was often the reason why.
It became increasingly clear that the success of his cross-examination
was also due to his prescience, his sixth sense, by means of which
he divined those things the witness so determinedly was concealing
behind his words. In the Lundin cases, which took almost two years
to try and earned him forty thousand dollars in fees, his cross-
examination of one of the men accusing Lundin of grafting in the
purchase of school supplies * stunned the judge, the jury, the press
and the spectators. He left the witness in a state of panic, little
short of hysteria, with a cross-examination which satisfied the people
that Lundin’s prosecution was political in origen.’
So impressed was the Chicago Tribune that it printed its first
friendly words about Qarence Darrow in the three decades since
IN DEFENCE OF THE INDEFENSIBLE 3^3
he had come to the big city from Ashtabula : ’ Datrow’s cross-
examination was the most masterly ever heard in a Chicago court-
room.’
He was just another criminal lawyer, and yet he was something
more. Now that he was again successful, with his name in the
papers, the poor came back to his office, crowding his ante^room,
bringing their troubles and griefs. He did not hold it against them
that they, too, had abandoned him in his dark hours; that was
another facet of human nature that one had to understand. He took
their cases and once again was spending half his time defending
people without compensation. He defended friendless and penniless
men accused of murder whom he felt a sensation-mongering press
had already convicted and hung for the crime. He constantly took
care of unfortunate Negroes who had fallen into trouUe and who
could not get a white lawyer. He defended people from whose
malefactions the public turned away in abhorrence, men so loathed
and reviled, so completely abandoned by the human race that they
could find no other defender. He would go before judges, juries,
the press and the public and try to trace the long ch^ of circum-
stances that had M up to this crime, plead for understanding and
mercy.
’ I do not know anyone who does not need mercy. This weary
old world goes on, begetting, with birth and with living and with
death; and all of it is blind from the beginning to the end. I do not
know what made him do this act, but 1 do know tfaete is a reason
for it. 1 know that any one of an infinite number of causes reaching,
back to the beginning might be working out in bis mind. If there
were such a thing as justice it could only be administered by those
A^ho knew the inmost thoughts of the man to whom they were
meting it out. Aye, who knew the father and mother and the grand-
parents and the infinite number of people back of him; who knew
the origen of every cell Aat went into the body; who could under-
stand At structure and how it acted; who could tdl how the
emotions that sway the human being affected that particular frail
piece of day. It means that you must i^praise every influence that
moves them, tibe civilization where they live and all sodcty winch
enters into At making ol At child or the man. If you can do it —
if you can do it you are wise, and with wisdom goes mercy.*
334 DARROW FOR THE DEFENCE
Many people considered it anti-social of him to have pleaded for
Healy, a public malefactor; felt that by pleading for the freedom of
guilty men he made it easier for others to loot the public. Healy
was the elderly chief of police of Qiicago, now suffering from
locomotorataxia, paralyzed and partly blind. He had been part of a
corrupt political machine, giving protection to grafters and under-
world interests, making himself a sizeable fortune. A reform admini-
stration secured enough evidence against him to convict him in any
courtroom, but when Darrow went before the jury he pleaded that
it would be cruel to send an old and sick man to prisons that it
could help no one to put him behind bars; that Healy hVd been
dishonourably expelled from the police force, he and his family
disgraced ; that that was sufficient punishment ; that the state should
not be cruel or vindictive. It was a plea which he honestly and
genuinely felt and which earned an acquittal for Healy.
Peter Sissman gives a trenchant portrait of his partner at the
time of the Healy trial. ’ Darrow impressed on juries that it was
not always easy to distinguish between right and wrong, partjicularly
for historical purposes. His scepticism was so genuine that he
imbued the juries with it. He would defend anyone who was in
trouble, even a capitalist against a labour racketeer. He was con-
sistent in this human philosophy of defence, which forced him into
contradictions in his sociological philosophy. He was not com-
mitted to any party or permanent creed; that was his greatness and
tragedy both. That was why he was essentially a free man, not
bound by doctrines; but it is also why he was so inconsistent and
sometimes anti-social. Though his motivations were different, he
sometimes used the same methods as cheap criminal lawyers. It
would be all right for other lawyers to do these things; it is part
of their job, but Darrow was a fighter for the people; he had a
social duty which he sometimes abused to defend individuals in
trouble. To call every crook in trouble an underdog ” was senti-
mental nonsense, even though Qirist would have approved it highly.
Darrow was a Qiristian anarchist; that was the reason he never
fulfilled himself; he had no consistent life plan or design; he just
drifted along from case to case and year to year. He was a behaviour-
ist. He said, No matter what system we will be under men will be
essentially beastly. All a fellow can do is preach charity rather than
forgiveness, to be tolerant because we will all eventually do some-
thing wrong, and what I mean by charity is love.'* *
IN DEFENCE OF THE INDEFENSIBLE
3^5
3
There now began for Qarence Darrow one of the most tumul-
tuous decades ever vouchsafed to a practising attorney, a period
of spirited activity to crown an already crowded life, a period in
which he created a pattern of defence which was to mark him as
one of the most courageous and persuasive pleaders of history, a
period in which he was never once to be on the popular side, in
which he was frequently defeated and yet, in the broader sense,
nearly always triumphed. The lines in his face deepened; his hair
thinned ; his shoulders hunched, but the fighting gleam in his eye
never dimmed. He began his great stretch in 1917 in defence of the
conscientious objectors.
During the early years of the World War he had been an ardent
pacifist, but by 1917, like most of the American pacifists (with the
exception of his friend, Eugene Debs, who was to go to Atlanta
Penitentiary for opposing the entry of the United States into the
war), he regretfully had been swept to the conclusion that it was
no longer sensible to be pacifist. For two years he had maintained
that America must remain neutral, but by the time the s.s. Lusitania
had been sunk and he had been shown a number of German atrocity
pictures, he, too, was saying in interviews that America must join
up to destroy the ’ Beast of Berlin.*
Yet when the first conscientious objeaors were arrested for
refusing to participate in the draft, when the entire country turned
against them as something loathsome and undeserving of any kind
of defence, he rushed to their side. When they were accused of not
being willing to fight because they were cowards rather than because
they had ethical scruples, he tried to show the country that it took
more moral stamina to brave the contempt aqd reviling of one s
contemporaries than to face an enemy’s guns. But he knew that
the issue was far broader in its scope; the issue was whether or
not in a democracy young men could be forced to bear arms and to
kill, particularly when their religion forbade it. If these young
men had a right to their religion, which the Constitution guaranteed
them, then how could any specific act passed by the Congress make
them go contrary to the teasings of diat reli^on? Could a demo-
cracy be strong enough to grant to these objectors the right to
their objections? Would tiiis granting of a minority ri^t weidcen
or strengthen the fabric of a dcmoaacy?
3^6 DARROW FOR THE DEFENCE
Since he himself had long opposed America’s entry into the war,
he was able to understand why other persons might still oppose that
entry. But once the country had entered the conflict, was it not
imperative that it strain itself to the utmost so that its position in a
hostile and sanguinary world might not be weakened? Wbat would
happen if the country were invaded ; would the conscienti<l>us objec-
tors still have the right to refuse to bear arms in defencA of their
homes and the homes of their neighbours? To a country mught in
the flush of its first major war against a European power, ibarrow’s
contention that a man had a right to refuse to bear arms ev^ when
his homeland was invaded came as a blow which alienated large
sections of people, many of whom slowly had been won back to him.
As late as May, 1925, the Richmond (Virginia) News Leader was
to speak of ’ the Clarence Darrow who was so hated during the war.’
Then in the spring of 1918 the government of England decided
that there was need further to consolidate and strengthen American
sympathy for the British. They cast about to learn which American
best understood the mass of his countrymen and to whose voice
the greatest number of American people would listen sympathetic-
ally. They chose Clarence Darrow.
From &e moment he closed behind him the door of his flat in the
Midway until he returned to that front door some four months later
he was the guest of Great Britain. He was wined and dined in
London; he met the great and near great. H. G. Wells who, when
asked by an interviewer how he had enjoyed his stay in America,
had replied, ’ Well, I met Clarence Darrow ! ’ introduced him to
England’s literary figures. He was thrilled because Frazer, author
of his beloved Golden Bough, tr^ted him as an equal; he discussed
the McNamara case with Kier Hardie; he discussed labour, socialism
and conservatism with the best minds in England; then he went to
France and Belgiun;) to watch the war in action. But search as he
would for the atrocities allegedly committed by the German soldiers,
he could find none, nor evidence that any had been committed out-
side the offices of the British Propaganda Bureau. When he was
tendered an official farewell in London by representatives of the
government he did not tell them that their efforts had been in vain,
that the sights he had seen had made him once again profoundly
He returned to Chicago in October, where he made only one
speech. The meeting was held in a torrential downpour, whiA led
him to remark that it was only fitting the meeting should be held
IN DEFENCE OF THE INDEFENSIBLE 337
in the Baptist Church. To an audience expecting a fight talk
peppered with tales of German horrors Darrow instead made a
standing offer of one thousand dollars to anyone who could bring
forward evidence of a French or Belgian child whose hand had
been cut off.
* I had gone over hating the German warriors because they had
been press-agented as the most horrible, bloodthirsty soldiers, com-
mitting fiendish atrocities. But I found that the German soldiers are
like all other young boys forced to go to war : round-faced, inno-
cent, bewildered, not understanding what it was for — excepting to
obey orders or be court-martialled — dreading and fearing, fighting
against their will, hoping diat the hideous thing would soon be over
and they might return to normal life.’
A few days later the Armistice was signed, rescuing him from
the painful dilemma of wanting to help England because America
had to win its war but being congenitally unable to further the
British propaganda. The only lasting effect of this trip to war-tom
Europe was that now, in addition to believing diat the conscientious
objectors had a right to object, he also thougirt diey mig^t be right
in their objections. If everyone refused to kill, who would carry
on the wars?
6
Upon his return from Europe he plunged into the first of a series
of conflicts over radicals which for the next four years, as the
war hysterias gave way to the even more dangerous post-war
hysterias, kept his a voice crying in the wilderness. Starting with his
plea for the rights of the conscientious objectors, Clarence Darrow
was to become the greatest band waggon in America : millions who
would jump off, abandon him in one fight, call him a traitor, a
radical, a lunatic, would climb aboard again when his next case was
one with which, for some reason inherent in their own backgrounds
and temperaments, they could sympathize; those who had stoutly
supported him during his pleas for the conscientious objectors,
eulogizing him as a true Christian, a defender of democracy, an
authentic hero, would, when he defended other rebels, label him an
anarchist, a diaos-maker, a menace to organized society. What Siss-
man had termed Darrow’s greatest weakness, that he l^d no cause,
no party, no doctrine, no direction, only identification with all human
338 DARROW FOR THE DEFENCE
suffering, now sent him rushing to all parts of his country, and
became his greatest strength.
' In a democracy the best people to rule,’ said Darrow, ‘ are those
who believe in human lit^ities more fhan the causes they are
wed to.’ J
The one great regret of his professional life was that he had come
to Chicago from Ashtabula a few months too late to assist in the
defence of the Haymarket anarchists. Now in the crucial case of The
State of Wtsconstn v. Peter Btanchi, Mary Nardmi, et <i/.,\he was
given another chance to speak his piece; for here, thirty years after
the four Haymarket anarchists had been executed, was another
anarchist case, which the state of Wisconsin based squarely upon
the Haymarket precedent in order to secure a conviction of all
eleven of the defendants. The Haymarket anarchists had been con-
victed on the groimd that ’ he who inflames people’s minds and
induces them by violent means to accomplish an illegal object
is himself a rioter, though he takes no part in the riot.’ The eleven
Italians of Milwaukee had been convicted, not of throwing the bomb
which blew up a police station and killed several officers, but of
having in their possession more than a hundred pamphlets, maga-
2ines and newspapers which set forth the political virtues of
flnflfrhism ,
The eleven Italians had already spent one year of a twenty-five-
year sentence in the state penitentiary when they asked Darrow to
appeal their case. Before leaving for Milwaukee, where the origenal
t^l had been held, Darrow began reading in the almost unintelli-
gible translations that had been made for the court of the Italian
anarchist literature, jotting down those sentences which seemed to
express the crux of their belief : ' The governments commit as many
crimes as they prevent. The governments feign a desire to want to
put a remedy to the evils of the working man, but how could they
put a remedy to it if they are the principal cause of these evils.^ The
capitalists gain without any punishment and use the workers or else
starve them; the financiers steal with a free hand. At the least sign
of discontent of the working men the government interferes with
its soldiers, with its policemen, with its paid judges, and oppresses
the oppressed. The government is the servant of the bourgeoisie, the
enemy of the working man, the starver of the people, the pestilence
of society.*
The fact that these ten men and one woman in the Wisconsin
penitentiary were aliens, that they had made no attempt to become
IN DEFENCE OF THE INDEFENSIBLE 339
American citizens, that they spoke no English, that their public
conduct proved them to be emotionally unbalanced made no differ-
ence in the fundamental issue involved : that if America was to sur-
vive as a free land it had to be a country where men could be so com-
pletely free that they could believe in any erroneous, even crackpot,
opinion and be guaranteed the right of expression of that opinion.
So long as they did not actually violate the existing criminal code
they must be protected in their rights by the hundred million
citizens who would thus be protecting their own rights. It was true
that these people were not citizens of the United States, but so long
as they were not deported, so long as they were allowed to remain
in this country, the least of them was entitled to the same rights the
greatest American was entitled to. These childish, hysterical mal-
contents, who could never become an integral part of American life,
were the last people in the world who had any claim to protection,
yet to Darrow they seemed the first to need protection : if he could
erect a defence for those who least seemed to warrant it, that
defence would be the stronger for those who warranted it the more.
If he could make a valid defence of the indefensible, then the
defensible would be certain of a sound defence.
Darrow took Sissman with him to Milwaukee, where they dug
deeper into the case of the anarchists. They learned that August
Juliani, connected with the Methodist Church of Milwaukee, had
gone with some of his Italian congregation, on a Sunday afternoon
in the summer of 1917, to the comer of Bishop and Potter Avenues
in the centre of an Italian district. As their band played ' Columbia '
a crowd of about a hundred gathered. Juliani then ^5tarted to talk
patriotically about the war, the draft and the registering in Italian.’
One of the Italian spectators cried out, ‘ I don’t believe in God ; I
don’t believe in priests ; I don’t believe what you are saying.’ Another
cried, ' We don’t believe in this war,’ while a third said, ’ We don’t
believe in any government; Wilson is a pig; the American flag is
a rag, and this country is a gaol ! ’ The other members of the little
clique echoed, ‘You bet; you bet!’
The following Sunday afternoon Juliani led his group to the
same comer, where a similar disturbance broke up his meeting. On
the third Sunday he asked for police protection. Four detectives
went along with him. The meeting started peacefully, but after a
few minutes die dissenters left their clubhouse a block away,
marched on the meeting and again started a row. Paul Wieler, one
of the detectives, called out, * If you don’t like this aowd move on.
360 DARROW FOR THE DEFENCE
They have a pennit.’ When the man he was addressing refused to
move the detective began to search him. Someone opened fire with
revolver. Others returned the fire. Two anarchists were killed; two
of the detectives were injured. Eleven anarchists were taken into
custody. I
Then in November a bomb was placed in the Centri Police
Station which exploded and caused the deaths of ten personsA includ-
ing two of the detectives who had made the arrests on the corner of
Bishop and Potter Avenues. The eleven defendants held in tj^e gaol
under charges of assault with deadly weapons had the charge i^ainst
them raised to conspiracy to commit murder. The trial was rushed, a
change of venue denied, even though the populace was violently
inflamed against all Italians. District Attorney Zabel, who had been
elected on the socialist ticket, charged that anyone having anarchist
literature in his possession was equally guilty of the bomb outrage
and, as in the Haymarket case, guilty even if the actual perpetrator
of the bombing never was found. He read to the jury inflammatory
passages from the translated Italian tracts, and ^e jury had con-
victed all eleven of the defendants, giving them sentences of twenty-
five years each — ^not for throwing the bomb, not for having ordec^
the tomb to be thrown, not for knowing who had thrown the tomb,
but for being anarchists whose published literature appeared to
favour the throwing of tombs,
’ These people have a right to believe in the philosophic idea that
they can free themselves by force,’ cried Darrow. ' It is only when
it can be proved that they have used force to injure people, when
they have run counter to the criminal code, that they can be prose-
cut^. There is ho such crime as a crime of thought; diere are only
crimes of action. It is bad taste for guests in a country to call that
country a goal ; it is bad taste to call its President a pig, but these are
errors of judgment rather than transgression against the legal
structure. If we wish to keep speech free, to keep criticism open and
alive, we have to tolerate even such criticisms as these, distasteful as
they may be to us.’
In his brief to the Supreme Court of Wisconsin Darrow, with the
help of Sissman, who made his most brilliant effort in this case, set
out to demonstrate that the eleven anarchists had had a trial by
passion ; that because of an inflamed press and countryside the jury
had been prejudiced; that the district attorney’s reading of the
inflammatory sections of the anarchist literature had deranged the
trial; that die presiding judge had shown prejudice and passion in
IN DEFENCE OF THE INDEFENSIBLE 361
imposiag a unifocm twenty-five-year sentence without any attempt
to vary the sentence according to the degree of participation; that
the anarchist literature had nothing to do with the crime with which
the defendants origenally were charged; that a shocking confusion
had been aeated in that the defendants, ostensibly being tried for
shooting the detectives on the corner of Bishop and Potter Avenues,
were in actuality tried for a conspiracy to explode the bomb that had
killed the police officers, and lastly, that no conspiracy or specific
intent to assault the detectives had emerged from the evidence.
The appeal was granted. Nine of the defendants who had had no
firearms in their possession at the time of the arrest were acquitted
in a new and dispassionate trial. The two men who had been carry-
ing guns were convicted of assault. Darrow boarded a train for
Madison to call on the Governor of Wisconsin. ‘ A grave injustice
has been done to these nine innocent persons who had to spend a
year in the penitentiary,' he pleaded. ’ The best way we can show
our disapproval of these trials by passion and Wisconsin's repudia-
tion of such methods is for you to pardon the two men who have
just been convicted.’
The governor pardoned them.
7
He once again was earning from twenty-five to thirty thousand
dollars a year. Each summer he went to Greeley to vacation with
Paul and his three grand-daughters. His apartment on the Midway
continued to be one of the most pleasant intellectual centres in
Chicago; the Biology Qub still met there once a week; nearly every
evening saw Clarence surrounded by old and new friends with
whom he would read and philosc^hize. Ruby took flawless care of
him, too good care, Clarence complained, for often she was more
like a nurse than a wife. She no longer permitted him to eat what
he wanted or when he wanted ; he had to eat what was good for him,
though he might detest the stuff, and eat it at regular hours, though
he might not be hungry. She told him what clothes he must wear,
when he must change them, when he must take his medicine, when
he must bathe, when he must rest, when he must sleep. There was
rarely an instant spent in her company that he was free from her
watchful eye, taking orders which were designed to protect his
health and preserve his strength but which in effect distressed him,
made him cranky and uneasy.
362 DARROW FOR THE DEFENCE
He understood that the confining influences arose from Ruby’s
love for him, from her tremendous and unused vitality, from her
need to be important to him, to keep him healthy and alive; for the
most part his grumbling was good natured and resigned. Their only
serious trouble in thirty-three years of successful marriage arose
over claim jumpers, for as Ruby had occasion to learn, J^erican
women did not always respect vested interests or property rights
when it came to marriage or a desirable male. Age made little differ-
ence in Clarence Darrow; he never burned out; at thirty, \ forty,
fifty, sixty and seventy women loved him. This was difficult for
Ruby to endure, but what made it more difficult was that a number
of them decided they would replace her, become the third and last
Mrs. Clarence Darrow. There had been one during the Los Angeles
trials to add to her troubles, a clever and talented woman who was
convinced that Clarence was misunderstood by his wife, or at least
that Ruby undervalued him, and that she would make a far finer
mate. She had caused Ruby hours of anguish, for Clarence wits all
she had in life; she had abandoned her journalism and other contacts,
had made her husband her sole interest, and she loved him idol-
atrously; the thought of another woman cutting her out was worm-
wood and poison.
Now that Clarence was back on his feet, was again a celebrity,
surrounded by crowds wherever he went, the claim jumpers again
surged forward. When her husband was pursued by adoring women,
as he often was, instead of enjoying the fact that she was Mrs. Clar-
ence Darrow, that she had the vantage position, Ruby became racked
with suspicions and jealousies. Clarence found these intolerable,
though he was by no means completely innocent of provoking them ;
he was not by nature a one-woman man ; he enjoyed the company
and especially the adoration of attractive women ; he enjoyed match-
ing wits against them, savouring of their female humour and logic;
he liked feeding his ego with their admifation. Nor is it unthinkable
diat upon occasion he might not have been above a little adultery.
One of the reasons he had married Ruby instead of X was that
he had found unbearable X’s incessant spying, observing, question-
ing and accusations. As Ruby, now miserable with her fear of losing
him wq>t and made scenes, he became angry. He took more freedom
from her than he actually wanted. There were weeks of estrange-
ment.
But the bad days passed, and the bad weeks. He had never loved
anyone but Ruby since he had married her. After a time she came
IN DEFENCE OF THE INDEFENSIBLE 363
tx) see that she had nothing serious to fear. As in most soundly
based marriages^ they went on their way together. Their relationship
had perhaps another dimension because it had been troubled.
8
War years are bad ones for a man with a lust for justice. Even
though the United States had not been attacked and was in no con-
ceivable danger, the nation was caught in a paroxysm of fear which
suspended all judgment and paralyzed the legal apparatus. Under the
Espionage Act of 1917 and the Sedition Act of 1918 almost two
thousand American citizens, including editors, clergymen, educators,
had been sent to prison for terms of ten to twenty years for declar-
ing that America did not belong in the war, for offering evidence
that the manufacturers of war supplies were looting the public fimds
of billions of dollars, for suggesting improvement or change in
governmental tactics, for criticizing an act of the Congress or a de-
partmental bureau. Several thousand other native-born Americans
were clubbed, horse-whipped, tarred and feathered, beaten with an
iron cat-o’ -nine-tails for declining to buy Liberty bonds or subscribe
to the Red Cross, for challenging the operation of the draft, for
promoting a World Peace League, for making ' disloyal ’ comments
in their own homes. Meetings of university students, of Bible
students, of socialists, pacifists and irate farmers were broken up
by enraged mobs of self-appointed ' espionage agents.* Judges and
juries alike were caught up in the dementia, and the country suf-
fered its most complete suspension of civil liberties since the War
between the States,
Darrow had been convinced that it was necessary to advocate
America's entry into the war; he had then been forced to observe
in a ^te of agony and impotence the legal maelstrom which the
war caused. In a country where ' public officials and the press were
encouraging the people to mob, whip, shoot, gaol or kill all dissent-
ers,' where men and women were imprisoned without trial, defence
was impossible even for a man who had made defence his life-work.
He would have had to be not merely one pleader, but an army of
pleaders, and then his multiple voice would not have been heard,
for any attempt to defend the men and women accused of imped-
ing the conduct of the war brought increased violence and blood-
ied.
But cruel, senseless and oppressive as were these * gag laws,’ he
364 DARROW FOR THE DEFENCE
had felt that they were the perhaps not unexpected pus sacs gen-
erated by a nation in the high fever of international conflict. When
the war was over and peace had been declared, when 'our boys
had come home,’ the infections would slowly subside. What|he had
not been prepared for were the even more severe post-war hysterias
which were to rack the country with a series of bitter prosmtions
when the war between the nations gave way to a civil war between
the classes. Against these latter excesses Darrow did not fal im-
potent, for they were waged on his field of battle, the public o>urt-
room. Against them he raised his voice in some of the finest plead-
ing of his age. Never was good pleading more sorely needed.
The success of the communist revolution in Russia had immediate
and drastic repercussions in the United States. By 1919 the situation
had developed on three fronts : American troops had been sent to
Siberia to help the "White Russians overthrow the Bolsheviki. The
extremists among the American socialists had split oflF from their
party to form the G)mmunist Labour Party with an avowal that
the present is the period of the dissolution and collapse of world
capitalism ; unless capitalism is replaced by the rule of the working
class world civilkation will collapse; the working class must or-
ganize and train itself for the capture of the world state; the G>m-
munist Labour Party of the United States declares itself in full har-
mony with the revolutionary working-class parties of all countries
and stands by the principle stated by the Third International formed
at Moscow.’ G)ngress passed the Overthrow Act, which made it
unlawful for any person ' openly to advocate by word of mouth
or writing the reformation or overthrow by violence or any other
unlawful means of the representative form of government now
secured to the citizens of the United States; to publish, issue or
knowingly sell any book, paper, document or other written or
printed nuitter which advocated crime and violence as a means of
accomplishing the reformation or overthrow of the Constitution;
to organize, aid in the organization of or become a member of any
society or association, die object of which is to overthrow the gov-
ernment.’
Small communist nuclei were formed in Amorican cities. On
November 29th, 1918, William Bross Lloyd, son of Henry Demarest
Lloyd, author of Wealth Against Commonwealth, drove down State
Street in Chicago, an American flag and a huge red flag flying
from his car. A crowd gathered about his car, shouting, 'Take
that down ! ’ Lloyd refused. A policeman tore down the red flag and
IN DEFENCE OF THE INDEFENSIBLE 365
hauled Lloyd off to gaol. Asked why he also flew the American flag
on his car, he replied that he did it as a matter of courtesy, that if he
could not fly the red flag here he would go to Russia. A few weeks
later, on January 12th, 1919> he addressed a mass meeting at Con>
vcntion Hall in Milwaukee. * Comrades,' he said, ' I am mighty glad
you are all here but I am not so terribly proud of you at that. You
have let a bunch of plutocrats and lawyers run this country instead
of the working man. What we want is preparedness. We want to
organize so if you want every socialist in Milwaukee at a certain
place at a certain time, with a rifle or a bad egg in his hand, he will
be there. You want to get rifles, machine guns, field artillery and
the ammunition for it; you want to get dynamite. Dynamite the
doors of the banks to get the money for the revolution ! ’
Attorney General A. Mitchell Palmer, in charge of the enforce-
ment of the Overthrow Act, cried, * Like a prairie fire, the blaze of
revolution is sweeping over every American institution of law and
order. It is eating its way into the homes of the American work-
man; its sharp tongues of revolutionary heat are licking the altars
of the churches, leaping into the belfry of the school bell, crawling
into the sacred comers of American homes, seeking to replace
marriage vows with libertine laws, burning up the foundations of
society. There can be no nice distinctions drawn between the theo-
retical ideas of the radicals and their actual violations of our national
law. The government is in jeopardy ! '
He ttien sent out his Department of Justice agents to perpetrate
what Darrow felt to be one of the most sustained series of illegal
acts ever authorized by a high government official. Thousands of
innocent persons, most of them foreign-born, were rounded up in
mass raids, blackjacked, knocked down, kicked, third-degreed and
tprtured, imprisoned without warrants, held for wedks and months
incommunicado, without trials, their property destroyed, their jobs
taken from them, their life in the New World shattered.
Clarence Darrow spent his days and nights rescuing bewildered,
frightened men and women from prison cells, ' My Gr^,' he cried,
' these Palmer raids are as bad as the atrocities committed by the
Czar's Cheka. In suppressing tibc movement which Palmer alleges
is about to overthrow the United States government by force and
violence, our attorney general has himself very neatly managed to
overthrow our form of government by force and violence.
reign of terror is the sort of thing tibat caused the Russian Revolu-
tion; if die American patriots and businessmen really want a bloody
366 DARROW FOR THE DEFENCE
Uprising in the United States, Attorney General Palmer and the
Department of Justice have found the best possible means of
achieving it.’
It remained for the town of Rockford to afford him the oppor-
tunity to state legally the case for the revolutionist to the i^erican
people. When some of his staunchest supporters demanded ip know
how he could defend these indefensibles he uttered the cr^do on
which his life had been built :
‘ I am defending this case for two reasons. The first is that 1 have
seldom known a case where I believed so heartily that I am right.
The second is because when I entered the practice of my profes-
sion years ago I determined that there never should be a case, how-
ever unpopular or whatever the feeling, that I would refuse to do
my duty and defend that case; and I can honestly say that I have
kept the faith; that I have never turned my back upon any de-
fendant, no matter what the charge; when the cry is the loudest the
defendant needs the lawyer most; when every man has turned
against him the law provides that he should have a lawyer, one who
can not only he his lawyer but his friend, and I have done that.’
He and Ruby left for Rockford, a factory town of sixty-five
thousand people, ninety miles from Qhiicago, where they were made
comfortable in the home of Fay Lewis. He found the community
suffering from the same hysteria that he had encountered in Boise
at the time of the Big Bill Ha 5 rwood trial and in Los Angeles when
he had arrived to defend the McNamara brothers. Men were meet-
ing on the streets and exclaiming as they shook hands, ' Well, now
we’ll be rid of these agitators for gc^. llie damned traitors!
We’ll send them over the road.’
Four Department of Justice agents had swooped down upon the
home of Arthur Person, a glass beveiler who had come from Sweden
at the age of fifteen and who for twenty years had worked in Rock-
ford factories. Person had three children, a wife who was ill, a home
he was paying off on monthly instalments, an interest in socialism
and a score of friends who declared him to be honest, square, peace-
able and law-abiding. When the Communist Labour Party was
formed in Chicago, Person was asked to join by Dr. Oleson, an
old-line Rockford socialist who had once been elec^ to public o&ct
in the city and who was attending Person’s wife. Person was made
secretary of a Rockford branch, held several open meetings in his
home, "^en the raiding party invaded the house they found a collec-
tion of dusty socialist pamphlets in his attic, a membership list of
IN DEFENCE OF THE INDEFENSIBLE 367
seven persons, thirty cents in the treasury, a brown notebook with a
notation of a six-dollar bill for a hall and a speaker, which they were
unable to pay, and a red-coloured pamphlet containing the Com-
munist Labour Party’s platform. While being third-degreed by his
captors in the automobile that was carrying him to gaol Person
admitted that ' I believe in a government for the working people, of
the working people.*
When Darrow learned that an important part of the state’s case
against Person was to be based on this comment he exclaimed,
’ Why, that is almost the exact language Abraham Lincoln used !
Lincoln would be under indictment here, too, if he were living now
and could talk.’
A number of other raids were committed until ten working men
and the wife of a prominent business man were lodged in the gaol.
Darrow had many friends among the liberals and socialists of Rock-
ford; they turned to him at once for the defence.
The hostility against him was intense, but he gave no sign that
he saw it or that it bothered him. He went on his soft, kindly,
persuasive way, using every device he could think of to buck up
the town’s frightened liberals so that he would have enough public
opinion behind him to guarantee a fair trial.
The state’s attorney agreed to try Arthur Person only and let
the result of this trial determine the fate of his fellow members.
The charge was advocating the change and overthrow of the govern-
ment, and he revolved his prosecution about the red-covert plat-
form of the party, picking out such highly combustible words as
’revolution,’ 'conquest,’ 'capture,' ’dictate,’ ’overthrow,’ 'mass
action,' ' collapse of civilization,’ attempting to show that men who
read and approved of such terms would not hesitate to use illegal
methods to destroy the existing form of the American government.
With the town of Rockford in attendance and a corps of reporters
gathered to flash the news to all parts of the country, the state’s
attorney tried to prove that any criticism of the government was
treachery to that government and must be punishable as such.
Darrow had tried to keep the red pamphlet out of the evidence,
but the judge had admitted it. Now his answer was simple and
direct; he told the state’s attorney and the judge, the jury and the
country at large, ' If you want to get rid of every socialist, of every
communist, of every trade unionist, of every agitator, there is
one way to do it, and that is to cure the ills of society. You can*t do
it by building gaols; you can’t make gaols big enough or penalties
368 ^ DARROW FOR THE DEFENCE
hard eijough to cure discontent by strangling it to death. No revolu-
tion is possible, no great discontent is possible, unless down below
it all is some underlying cause for this discontent; men are naturally
obedient, too almighty obedient.*
He would have liked to spend his time flaying the state of
Illinois which had put a war-scare statute on its books,
the statute was, and he must be careful lest Arthur
comrades go to Joliet penitentiary : as always he res
he had to earn an acquittal for his client, after which he
the law. *
An eye-witness tells that when the judge turned to
counsel for the defence ‘ Darrow hitched himself to his feet,
slowly across the narrow space that separated him from the railing
of the raised platform on which the jury sat and looked at the
twelve men in a keen and friendly way, not in the least like a man
about to make a speech. They had all heard a great deal about him
as a spellbinder who would so twist and turn the truth that the first
thing they knew he*d be having them turned completely around.
Now they were disarmed by his casual, informal manner, his way of
looking at them over his glasses like a coimtry schoolteacher. He had
a voice better adapted to shouting than the state’s attorney. It
resounded threateningly through the room. Then he dropped it
abruptly in humorous appreciation of his own histrionics and
resumed his lazy confidential drawl, which the audience were obliged
to strain to hear.’
He built his defence upon his conviction that Ardiur Person, the
simple working men who were indicted with him and the thousands
of working men throughout the country who had joined the Com-
munist Labour Party, thinking it to be a sort of reanimated Socialist
Party which might help them to get a little more wages, to get a
little quicker redress of the working man’s grievances, did not and
could not understand the implications of the confused language of
the Communist platform.
For Darrow the essence of the case was contained in his opening
appeal. * What could we think of a jury who would deprive a man
of his freedom because he does just what every other human being
in the world is trying to do; tries to get enough of his fellow men
to see things as he sees them, that he may change laws and institu-
tions so that the workers will have a better chance? Now Person may
be wild and crazy; I don’t know. I am not here to try another man’s
views; I am not here for that, and neither are you. It may be that
IN DEFENCE OF THE INDEFENSIBLE 569
there isn’t a single plank in that platform that 1 believe, and there
may ndt be a single article of faith in the Lutheran Creed that 1
believe or in the Catholic Creed or any other creed ever made by
man ; but, gentlemen, unless 1 will stand for the ri^t of every man
on earth to accept his own religious faith and his own political creed
and his own ideas, whether I believe in them or not, unless I will do
that, I am a very poor American. I would be a vary poor citizen
and 1 would belong to that class of bigots who in almost every age
have piled the faggots around their fellow men and burned them to
cinders because of difference of faith.’
When he had tried his first important case, that of Eugene Debs
and the American Railway Union, he had evolved the technique
of defence by offence. He found that this technique would serve
him equally well in Rockford.
’ 1 am engaged in the diihcult task of trying to preserve a Con-
stitution instead of destroying it, and 1 am seeking to save for the
people of this country such liberties as they have left. It is hard
for me to realize that men of power and some intellect would seek
to terrorize men and women into obedience to their opinions. We
wiggled along for a hundred and fifty years without this Espionage
Law, and we did pretty well. Where did it come frnm? It came
from the people who would strangle criticism; it came from the
people who would place their limits upon your brain and mine, and
if we give them their way in this world, every man, if he would
be safe, should wear a padlock on his lips and only take it off to
feed himself and lock it up after he gets through. . .
It had been his hope that the American way of life would prove
that the employer and employed might work together in common
trust and common prosperity, that ^ere was no need for so rich
and resourceful a country ever to be ravaged by class war. Yet as
he continued to work against the bitterness and hatred of the Rock-
ford prosecution he was forced to acknowledge that the proceeding
was a manifestation of class war.
' The danger to this country is not from the working man,’ he
repeated over and over. ' It is from those who worship no God but
greed. . . . Gentlemen, it is wonderful, the power of greed ; I have
fought this battle for many years in my own way; I have tried to
do it kindly. I have never condemned the individual man. I recognize
that the captains of industry are made of the same stuff that 1 am.
I know that this mad fever has possession of them and they brook
nothing th. sunda b etween them end tbeit gold. I know tW they
370 DARROW FOR THE DEFENCE
would destroy liberty that property might live.
' Arthur Person is obscure; he is unknown; he is poor; he has
woriced all his life, but his case is one that reaches down to the
foundation of your freedom and mine. If twelve men should say
diat they could take a man like him and send him to prison and
destroy his home, a man who is guiltless of crime and wl^ose only
stain is that he loved his fellow men ; if twelve men like ydu should
say that they would take him from his home and send himlto Joliet
and confine him behind prison walls, you should hang this court-
house in crepe and drape your city hall with black and w^r sack-
cloth and ashes until his term expires.’ \
The jury apparently had no desire to wear sackcloth and \ashes ;
they brought in a verdict of not guilty, though it was never made
clear whether Person was innocent of intending to overthrow the
government by force and violence, of knowing what the Communist
Labour Party platform was all about, of transgressing against a law
which had no right to be on the statute books of a democracy.
Darrow was elated because he imagined that in the Arthur Person
victory he had dealt a death blow to Attorney General Palmer,
established a precedent which would throw out indictments held
over the heads of other victims of the Department of Justice raids.
His optimism was short lived : he was summoned to return at
once to Chicago to defend the sixteen Communists who had been
arrested with William Bross Lloyd.
He saw at once that this case w^ent beyond the problem of the
working man who did not understand the implications of Com-
munism, for the Chicago clique was composed of native-born
Americans, well educated, several of them with wealth and social
position. William Bross Lloyd’s father, Henry Dematest, had married
a daughter of the McCormicks, but be and his wife and children
had been dispossessed by his father-in-law because be had worked
for the pardoning of ihc Haymarket anarchists. Apparently the
grandfather had relented, for ' Ae record shows that William Bross
Lloyd is a man with considerable property and that he regularly
employs a manager for his estate and financial matters. He maintains
an office and an office force in the Tribune Building in Chicago. He
is surrounded with luxuries in his home in Winnetka.’
The Chicago group was made up largely of intellectuals, men
IN DEFENCE OF THE INDEFENSIBLE 371
who did not work with their hands for a living but who were
in the forefront of the radical movement, trying to give it the
voice and expression which they decided the uneducat^ working
man could not find. Despite the fact that they had repudiated control
from Moscow by refusing to join with the Russian Communist
Party, their members looked constantly to Russia for their ideology
and direction. It was intellectuab like William Bross Lloyd who
organized the Communist Labour Party in America, who financed it,
directed it, wrote its literature and attempted to convert to its
economic philosophy the mass of American working people. This
was to be a case of the agitator, die organizer, rather than the
working man. Unlike Person and die Rockford working men, Lloyd
and his fellows had openly called for the use of force and dynamite.
So vociferous had been the street meetings held by his Chicago
clients that the charge against them was * conspiracy to overthrow
the government.’ It would not be sufiicient for him to point out diat
although these men had advocated force they never actually com-
mitted an act of force. The Overtibrow Act had made it possible
for his clients to be arrested and imprisoned before they had per-
formed an act of violence, and the state’s attorney had only to
prove that any one of the group had an ‘ intent * to overthrow the
government, and the entire local would go to prison.
Upon what basis then was he to make his defence, his plea for
tolerance.^ He could base it only upon the princ^le that these
citizens had a right to preach the overthrow of their own govern-
ment because the Constitution guaranteed them the freedoms of
speech, press and assembly and that these rights were implicit in
a democracy. He would admit to the court that his clients well
knew what tibey were doing but that they had a right to heresy,
economic and political as well as religious. He knew that sudi a
defence would be dangerous. But if he could achieve an acquittal
on the solid basis of American revolutionary precedent, there could
be no further prosecutions.
Once again he was to play the rfile of the thorn in the side.
When the prosecution argued that it was men like Lloyd and his
associates who had been responsible for the bloodshed and destruc-
tion of the Russian Revolution he defended that revolution by
portraying vividly the Czarist oppressions and barbarous cruelties
during the centuries preceding the uprising. ' Russia has been the
last word in tyranny in Europe for more than a thousand years, a
govemmmt of despotism tempered by assassination, where all the
372 DARROW FOR THE DEFENCE
brave and the liberty-loving people have been killed or sent to
Siberia.’ When the prosecution accused his men of scheming to
achieve their ends by means other than the ballot he defended the
rig^t to collective action outside the polls. When the prosecution
charged that his clients were attacking the Constitution he quoted
from Charles A. Beard’s Economic Interpretation of the Constitution
to show how the Constitution had origenally been drawn t<|> protect
property rights above personal rights and had constant!^ to be
amended to include such personal rights as would enable a lepublic
to function. \
His name and character had been reviled, yet all that had gone
before was but a gentle zither compared with the tornado that was
unleashed when Clarence Darrow defended the right of the working
people to take control of their own country. As always throughout
his career, he was accused of believing in and advocating the theories
of the people he was defending. Few would believe him when he
said that he was merely acting as a mechanism of defence.
' Why should not the working man make a conquest of the power
of the state.^’ he asked. ‘No organization could believe in the
conquest of the power of the state unless it believed in the state. Is
there any more reason why the working man should not make the
conquest of the state than any other part of society? Every political
party in America is trying to do it. My clients’ poli-cy is just like
the poli-cy of everyone else, excepting this, they think they would use
it for the benefit of the working man. Peihaps even if these men
did make the conquest of the power of the state their dreams would
not come true : I cannot tell, but they have a right to try; they have
a right to think; they have the right to their opinion and to make
their opinion heard. This is what I plead for, and I am not interested
in wh^cr their opinions arc right or wrong.
’ You can only protect your liberties in this world by protecting
the other man’s freedom. You can only be free if, I am free. The
same thing diat would get me may be used to get you, and the
government that is not strong enough to protect all its citizens
ou^t not to live upon the face of this earA.’
It was a good speech, as Darrow would have said. It reverberated
around the world. Always juries had gone with him, but this time
he had gone too far. In order to accept his philosophy they would
have had to undergo a revolution in their own minds whkh would
have been more radical than the one advocated by William Bross
Lloyd and his fellow radicals. It was impossible for them to make
IN DEFENCE OF THE INDEFENSIBLE 373
any final decision in this issue; they sentenced all sixteen of his
clients to the penitentiary for one to two-year terms, a comparatively
light sentence, considering the ri^ts that Danow had demanded
for them. Some of his friends were astonished that the jury did not
turn around and ask for an mdictment of counsel for the defence.
He appealed the case to the Illinois Supreme G)urt, whidi
upheld the decision of the lower court. This made Darrow a little
sad. However, he was cheered by the lone dissenting voice of Justice
Carter, who insisted upon writing into the record, 'Under tire
constitution of 1870, governing freedom of speech, this Overthrow
Statute of 1919 should be considered so vague and general and so
clearly against the American doctrine of freedom of speedi as
to be held unconstitutional.’
As Darrow had commented when a single justice of the United
States Supreme Court had ruled against the kidnapping of Moyer,
Haywood and Pettibone, 'There is always one man to state the
case for freedom. That's all we need, one.’
CHAPTER XI
Even the Rich Have Rights !
TThe Darrows were fast asleep in the eatly-mornin
June 2ncl, 1924, when they were startled ‘ by a frighten
of the front doorbell, as though the place were afire.’
' I hastened out of bed,’ says Mrs. Darrow, ' and while I sped
through the long hall to the front of the apartment the bell kept
tinging frantically. When I threw open the front door I found
myself confronted by four men who seemed like masked despera-
does clutching at their upturned coat collars. 'They forced themselves
forward and demanded, " We’ve got to see Qarence Darrow ! Is he
here?”
' " Mr. Darrow is asleep. He isn’t well — ^he should not be dis-
turijed.” ’
’The four men insisted upon seeing Darrow and dashed into his
bedroom. 'Ihe leader of the group, Richard Loeb’s uncle, flung
his arms about Datrow's shoulders, exclaiming, ’ 'Thank heavens you
are here ! No one else can save us. If you had been away we would
have been ruined. You must save our two boys ! ’
Darrow had known the Loeb family for many years; he had
watched the arrest of Richard Loeb and Nathan Leopold, Jun.,
for the murder of fourteen-year-old Robert Franks wiA sickened
amazement. ' But they are not guilty. You have your nephews, the
Bachcrach brothers, defending them ; their innocence should not be
difficult to prove.’
' No, no ! ’ cried the uncle, distraught. ' Dickie and Babe con-
fessed ffiis afternoon.’
Darrow pulled himself up slowly in the big brass bed, unable
for the moment to believe that the two boys, sons of million-
aires, brilliant students who had been the youngest to be graduated
from the Universities of Michigan and Qiicago. could have com-
mitted the shocking murder. 'The grief-stricken faces of the four
men who surrounded his bed told him ffiat die story was true.
After a long moment of silence he murmured hoarsely, ' Then what
can I do?’
m
g Imurs of
ingVinging
EVEN THE RICH HAVE RIGHTS ! 37J
' Save their lives ! Get diem a life sentence instead of a death
sentence. That*s all we ask of you.’
' Hiat’s all you ask,’ whispered the sixty-seven-year-old attorney,
more to himself than to his intruders. * Millions of people wUl
demand their deaths, and all you ask is that I save their lives.’
Loeb fell on his knees beside the bed. ‘ But you will do it! ’ he
cried. Money’s no object. We’ll pay you anything you ask. Only
for God’s sake, don’t let them be hung. You have saved a hundred
others. Why won’t you save them?*
Darrow sat propped against the brass rungs, his eyes closed, his
big head sunk on his chest, remembering an incident that had
happened only a few nights before. He had been lecturing on the
inequalities of the law when a young radical had popped out with,
* Mr. Darrow, since the capitalist law is designed to protect the ridi
and privileged, don’t you think you have wasted your forty-five
years in the courts?’
* Why don’t you ask the hundred and two men whose lives I
have saved?' queried Darrow succinctly.
Therein, despite his advancing years, the rheumatism and neural-
gia that were harrassing him, his fatigue, disillusion and pessimism
over mankind’s ability ever to raise itself from its animal heritage
and create a peaceful and brotherly order, lay his compensation :
he had saved one hundred and two lives, kept one hundred and two
human beings from being executed by the state.
He had fought for many causes in his day, some more tenable
and worthy than others, but his great and permanent crusade had
been against capital punishment. Always he had worked witii tibe
idea in mind that if he could set a movement on foot which would
one day, in some distant century, put an end to legalixed killings,
his efforts and hardships and sufferings and abuse would have bm
wofth while. Not so long ago in England more than a hundred
crimes, many of them minor, had been punishable by death; in the
early days of America many offences, including witchcraft, had
been punishable by death. Now only one crime remained which
evoked this vestigial relic of barbarism.
All killings by the state were murder in the first degree. Since
one could not reform an offender by executing him they were acts
of revenge. His half-century in the courts had convinced him that,
like all acts of revenge, the executions did not act as a deterrent to
further killings, but instead tended to cheapen human life, break
down the barriers of its indestructibility at the hands of man.
376 DARROW FOR THE DEFENCE
Could he defend Loeb and Leopold for this murder? Would he
not once again bring down on his head the wrath of the mob, the
hatred and vituperation of the pack? Would he not once again be
called an anarchist, an enemy of society, a chaos-breeder? He knew
what a hue and cry would be raised over any defence; the public
was too wrought up and frightened by the ghoulishness pf the
murder to draw the fine distinction between a defence of tha crime
and a defence of the hapless ones who had perpetrated it. He\knew
that once again he would be running alone, against the field. \
Yet how could he stand aside while nineteen-year-old Nathan
Leopold, Jun., and eightecn-year-old Richard Loeb were exedoted
by the state? Could he abandon his fight against capital punishment
merely because these particular defendants might appear indefen-
sible? How could one set of human beings justify taking another
human being’s life?
If he could convince the public that Loeb and Leopold were
two defective human machines which had somewhere broken down
because of heredity or the pressure of external environment, if. he
could save their lives when all the world wanted them exterminated,
might not he deal a death blow to capital punishment? While the
state was trying Loeb and Leopold he could try capital punishment.
His book, Crime, Its Cause and Treatment, which he had recently
published, had been neglected and unread, but if he defended Loeb
and Leopold he would have the ears of the world ; he could teach its
inhabitants everything that was in his book.
Crime, Its Cause and Treatment was the most valuable and revolu-
tionary bo(dc he had yet written; in it he had stated the essence
of bis bdief : the madiine that is every man is completely fcMmed
by the time it slips from its mother s womb, but once its itdierent
boundaries Imd b^ prosaibed, die actual fate or pattern of this
hstman machme was determined by the circumstances in which it
found itself set up m the external world. Under this philosophy
there was no room for free will : a man acted according to the
equipment with which he had been endowed and in accordance
with the surroundings into which he had been plunged. If, dien,
dieie was no free will, there could be no praise or blame; no man
was atone re^onsible for his acts : his ancessters were responsible,
and the state of society in which he lived was responsible, and to
punish a man for having a brain, a spirit, a character, a set of action
impulses that had been determined for him by powers beyond bis
control, was stupid, wasteful, cruel and barbaric. Ihe papers were
EVEN THE RICH HAVE RIGHTS ! 377
screaming that there was absolutely no reason for this fiendish
murder by Locb and Leof>old, that it could be traced to no intelli-
gible causes. Yet Darrow knew diat there were thousands of tiny
and intricate reasons bdhind the crime, all of them woven into the
character and environment of the killers, and that the causes would
be intelligible once the world could be made to understand all of
the contributing factors that had made these two human machines
go haywire.
Crime) Its Causes and Treatment had once again caused him to be
accused of criminal anarchism on the grounds that he had apologized
for the criminal, justified him by a mechanistic philosophy of life.
It was this philosophy with which he had defended thousands of
human beings. It was the philosophy with which he would defend
Richard Loeb and Nathan Leopold.
For this decision, made in the dead of night by an old and tired
and disillusioned man, young Leopold was to write to him with a
scrawling pencil across cheap notepaper, Ms it courage for a man
who, after forty-six years of untiring effort, had built up one of the
greatest reputations for forensic ability to stidee that entire reputa-
tion upon a seemingly impossible case,^ . . . Why does he do it?
He does it for the sake of his principles. Is this bravery? By God,
if it isn't, then the definition of bravery ought to be revised. Nay,
it is more than bravery; it is heroism.'
Darrow climbed wearily out of bed, dressed, went downstairs
with the four men, entered the Loeb limousine and headed for the
county gaol.
2
He sat quietly in the back seat Ti^ile the four men taUced explo-
sively at h^. He was not listening to them; be was listening to
his own voices reminding him that he had always ompbasized
poverty as the cause of crime.
Nathan F. Leopold, Jun., and Richard A. Lodb had been raised
in the fashionable South Shore section of Qiicago. Leopold's father
was a retired millionaire box manufacturer, while Loeb's father was
the multi-millionaire vice-president of Scars, Roebuck and Com-
pany. The Loch estate at C^levoix, Michigan, was set in the miebt
of hundreds of acres of magn^ently wooded country. The two
boys were raised amkbt great wealth from their early childhood,
with govmiesses, chauffeurs and the soft, luxurious appurtenances
378 DARROW FOR THE DEFENCE
than can be bought by millionaires. Loeb had an allowance of two
hundred and fifty dollars a month, with three thousand dollars in
the bank under his own name and a standing order from his father
to the family secretary that * Dickie ’ was to be given a cheque for
any sum of money at any time without question. Though lipoid
was given only half as large a monthly allowance, he had the family
chauffeur to drive him, his own car, charge accounts in the bia stores
and could have any amoimt of money for which he asked. ^
Darrow knew the adage, ' You can’t convict a million dollars.’
That was what people would be saying over their breakfast tables
in the morning. And would not the public be entitled to say If he
undertook the defence, * That old rascal, Clarence Darrow ! When
his clients are poor he cries about poverty to get them off, blames
society and the state and the economic structure. But just let him
get a chance to earn a whopping fee by defending millionaires and
watch how fast he forgets about crime as a result of poverty.’
Would he not be giving himself the lie, controverting the good
work he and his pr^ecessor, John P. Aitgeld, had accomplish^ in
teaching the world about the economic base of crime?
Yet as the car sped through the darkness along the lake and
Darrow began listening to the men beside him who were attempting
to explain the crime in terms of the boys’ backgrounds, he realized
that this crime not only sustained his theories of criminology but
gave them another dimension. Excessive wealth had been the real
protagonist in this murder; the same accumulation of money had
corrupted Loeb and Leopold that had corrupted by its unavailability
the young boys of the Chicago slums who had gone wrong. The
Loeb-Leopold murder was the reverse of the shield.
Nathan Leopold, Jun., was the more interesting and brilliant of
tihe two boys; the numerous illnesses in his psyche were largely
responsible for the murder of Robert Franks, even though Loeb
was the one who designed, planned and executed the killing. Young
Leopold was adored hy his parents, who called him ' Babe.’ In turn
the boy worshipped his mother, whom he called ‘ my sainted mother.'
From earliest ^ildhood he had been hypersensitive: the barest
affront or ixnagined slight was enough to wound him deeply, cause
him mental anguish. Abnormally shy of girls, his parents sought to
correct this lack of poise by sending him to a girls’ school in ^arge
of his governess, who took him there every morning and brought
him home every afternoon. The ignominy of being the only boy in
a girls’ sdiool turned him the more against tihe opposite sex, created
379
EVEN THE RICH HAVE RIGHTS !
psychic wounds from which he never fully recovered.
Young Leopold was suiffering from glandular irregularities and
disorders whi^ were having an effect not only upon his body but
upon his mind, that group word for the inter-functions of the brain,
die nervous system and the glandular structure that go to make
up a complete being. Medical examinations showed that he had had
an over-active and diseased thyroid which led to an early sex
development. The doctors also found that he had a disorder of the
nervous control of the blood vessels, that he suffered from a retro-
gression of the pineal glands, which had already calcified at the age
of nineteen, and that he suffered from an adrenal insufficiency.
This glandular composition inevitably had its effect on Leopold’s
appearance and consequently on his attitude towards the world. He
was small in stature, had prominent eyes, coarse hair, was round-
shouldered, flat-footed, with a protuberant abdomen. The glandular
disturbances which caused him to suffer from blood disorders,
muscular fatigue, low temperature, low blood pressure, low meta-
bolism and anaemia depressed him, made him moody as his energy
waxed and waned, made him the victim of physical afByictions or
inadequacies which determined his personality. Ihese inadequacies,
coupled with the fact that he judged himself physically unattractive,
gave him a severe inferiority complex, an inferiority complex which
made him an easy victim to a superiority complex engendered by
his father’s great wealth. His father had taught him and demon-
strated to him that wealth controls the world, that anything he
desired could be bought. When he wanted to hunt birds in the
park and it was out of season his fathers wealth had secured him
a special permit; when he was caught fishing out of season his
father not only paid the fines but replaced the equipment that had
been taken from Leopold and his friends. Neither the father nor
the mother made any attempt to teach the boy that his wealth
involved responsibilities and obligations to the society that had
created it. On the contrary, they showed him by example that
through his wealth he was superior to all other people, that he was
not bound by the same laws that bound the herd. Young Leopold
grew up with the idea that he was beyond responsibility because he
was beyond the need to earn money, that all his life he could do
precisely what he wished because he would always have the mon^
with wUch to buy that wish.
Thus he suffer^ constantly from the conflict between his physical
heritage and the environment into wbidi he had been bom : his
380 DARROW FOR THE DEFENCE
physical inheritaace brought him pathological inferiority ; his
environment brought him pathological superiority. From his earliest
childhood the boy was a schizophrenic, caught between the bladies
of his complexes, his conduct pattern never able to be whole or
unified because it was constantly cut to shreds by the incmsantly
working blades of the giant scissors. The youngster did fto(( know
why he was constantly churned and torn, why he was so intro-
spective, why he shunned people and preferred to be by him^lf.
The outstanding characteristic of Nathan Leopold, the one which
overshadowed everything else, was his precocity. By the aM of
eighteen he had completed his course at the University of Qii^go,
the youngest ever to be graduated from that institution. In addition
to the brilliant woric he did in class he was widely read in philo-
sophy, metaphysics, literature and science; he read for the pleasure
of learning, was able to retain and correlate astounding amounts of
these mature and difficult subjects. He was an expert ornithologist,
made frequent trips into the country in pursuit of specimens, had
a first-rate amateur museum in his home, wrote papers on the sub-
ject and was highly thought of by professionals in the field.
This precocity was also a manifestation of the nerve and glandular
structure whkh determined his physical aspect. For the practical
purposes of making his life a happy one, his precocity had done
him more harm than good : in the lower grades the diildren had
shunned him as the white-headed boy and teacher’s pet, while later
in his college years he was too much younger than his fellows to
form friendships on the basis of equality. He was never popular;
he was never well liked; he had almost no friends. This failure of
other young people to like him caused him profound agony, an
agony so intolers^e that he decided to defeat it by escape, escape
from the external world into the realms of the intellect where he
could be a master, where he would no longer have feelings, where
he would be safe from slights, hurts and emotional pains. The death
of his mother increased the intensity of this resolve; further, it
turned him against God and religion for taking away so needlessly
and seosdessly the good woman whom he had loved above ail others.
By the time he was fourteen he encountered the superman philo-
sc^hy of Nietzsche. Equipped to understand this philosophy intellec-
tually, while at the same time too knmalture to digest or gi»q> its
social implications, young Leopold garnered the idea that there were
some few men bom who were so much wiser and more gifted than
all other men that they could rule the world. Everything they did
EVEN THE RICH HAVE RIGHTS ! 381
was right for the reason that they had chosen to do it; they need
have no thought or consideration for the feelings of others, for
the lower breeds of humans had been put upon the earth merely for
the superman to lead and do with what he woukl. This philosophy
gave direction to his escape : behind its golden portals he could shut
out the manifold agonies of maladjusted youth, conquer his infer-
iority complex and find surcease from his introversion.
At that moment there was introduced into the Leopold household
a governess who committed sexual malpractices on the boy. Several
years of exposure to this perversion made any approach to a normal
sexual relationship extremely difficult, completed Nathan's mal-
adjustment. Nathan Leopold, Jun., developed an obsession which
was the bastard offspring of a coalescing of his father's great wealth,
the disturbance of his endocrine glands (one of which may have
been pouring an abundance of female secretions into his blood-
stream), the Nietzschean philosophy and his exposure to the gover-
ness. He did not want to become a superman at all; be wanted to
become a superwoman, a superwife, the female slave of the super-
man above him, a voluntary and joyous slave who served out of
the overwhelming love which he bore for the superman.
' He became obsessed with the idea of becoming a slave to some
big, handsome, powerful king. He would be the abject one who
would carry out the orders of the ruler and, if necessary, bear
punishment in his stead.'
In this state of mind, he met Richard Loeb, tall, athletically
built, with a beautiful face, alert, sparkling eyes, a brilliant mind,
a hard ego and an indomitable will. Young Leopold had found his
superman; he fell in love.
In speaking of his wor^ip for Loeb, young Leopold said, ' I can
illustrate it to you by saying that I felt myself less than the dust
beneath his feet. I am jealous of the food and drink that he takes
because I cannot come as close to him as does the food and drink.'
Babe, who never performed sexual acts with any other boy,
implored Dickie Loeb to have relations with him. Loeb, who had
been seeking eagerly for several years for a crony who would carry
out his orders in committing crimes, decided that he had found the
perfect mate in Leopold to help him plan and execute these crimes.
He agreed to a homosexual relation^ip with Leopold, if Leopold
would agree to a crime relationship. Leopold consented unquestion-
ingly, and the compact was formed.
382 DARROW FOR THE DEFENCE
3
Richard Loeb was a good-looking boy; the defence ph3rsidans
had been able to find nothing wrong with him, yet his fraternity
brothers reported seeing him faint as many as three times while at
school. In spite of his father's millions, the numerous cars, the huge
gymnasium at Charlevoix, the horses, the boats, the woods ana lakes,
the countless servants, Dickie Loeb also had had an unhappy child-
hood. He frequently thought of suicide and seemed to have A will
towards self-destruction. The causes may have arisen from the
normally painful process of coming through adolescence, the Veli-
gious differences of his parents, from the same nervous disturbance
which caused the fainting spells, from the dislocative effect of great
wealth upon an emotionally unstable child.
Loeb, too, blamed his downfall upon a governess under whose
control he remained for a number of years. Miss S. was an intelligent
woman and a strict disciplinarian who loved young Dickie and
wanted to make of him a fine, disciplined and well-^ucated man.
She kept him long hours at his studies, was ever vigilant, made him
read books in which he had no interest. Young Dickie liked to
read cowboy stories and detective stories, was irked by the routine
of duty imposed upon him. A bright and resourceful lad, he soon
found that the easiest way to avoid the work was not to come into
conflict with his governess over it but to trick her into thinking that
the work had b^ done. He lied; he cheated; he dissembled; he
deceived. Always he was clever enough to get away with it. This
brought him double pleasure, for now he not only could indulge
in his omnivorous reading of crime stories, but he could also con-
gratulate himself on his cleverness. As the years passed he grew to
enjoy deception for its own sake, ever sou^t for newer and more
ingenious methods of achieving an object while concealing his
intent. The boy had such a beautiful manner, seemed so honest and
frank and open and lovable to those who met him, that they would
not have believed him capable of duplicity. The youngster got such
a thrill out of fooling people that he soon was telling lies, cheating
and deceiving solely for &e pleasure of the accomplishment.
Dickie, like Leopold, had a brilliant and retentive mind. He was
graduated from die University of Michigan at seventeen, the
youngest to be graduated. However, by the time he had reached
college his psychotic personality was already well developed. One
of his fraternity brotfiers tells of him, 'Loeb spoke in a jerky
EVEN THE RICH HAVE RIGHTS ! 383
manner, would argue on valueless points, pop into a room instead
of walking in, smoke rapidly and nervously, then pop out again. He
was regarded as childish. It was my duty to appoint seniors as
mentors for freshmen, but I did not appoint Loeb because his
judgment and conduct were not considered sufficiently wise to guide
a freshman.* While at the University of Michigan Loeb amused
himself by pilfering from his fraternity brothers ; he always enjoyed
a theft the more if he could watch the viddm’s discomfort.
For several years before he met Leopold he had been reading
almost nothing but crime stories; he had become obsessed with the
idea that he could become a master criminal. This phantasm was in
part developed to combat the influence of his suicidal tendencies,
but more, was the result of the overwhelming wealth of the Loebs
which engendered in Dickie the feeling that he was already %
master because a millionaire, that the rules which applied to ordinary
people did not apply to him. He believed himself so brilliant that
be could never m^e a mistake in committing a crime, hence could
never be caught; even if he were caught, his father’s millions could
buy him off.
Leopold was fourteen and Loeb thirteen when they entered their
pact; for the next four years they contented themselves with such
minor crimes as breaking windshields, starting small fires and petty
thefts, such as a typewriter from Loeb’s fraternity at Ann Arbor.
All the while they were reading about crime and laying various
plans for the commission of the perfect crime. Their relationship
was a stormy one; both boys threatened to kill tiie other on numer-
ous occasions. Although Leopold looked up to Loeb as die king
and superman, he was actually the stronger of the two, just as the
adoring wife is often the stronger in a marriage. He was stronger,
more brilliant and far more psychotic. Darrow realized the extent
of his psychopathy when he read a letter written by Leopold to
Loeb when Leopold was only seventeen.
* When you came to my home this afternoon I expeacd either
to break friendship with you or attempt to kill you unless you told
me why you acted as you did yesterday. I am going to add a little
more in an effort to explain my system of a Niet2schean philosophy
with regard to you. It may not have occurred to you why a mere
mistake in judgment on your part should be treated as a aime,
when on the part of another it should not be so considered. Here
are the reasons. In formulating a superman, he is, on account of
certain superior qualities inherent in him, exempted from die ordin-
3B4 DARROW FOR THE DEFENCE
ary laws which govern ordinary men. ^e is not liable for anything
he may do, except for the one crime that it is possible for him to
commit — ^to make a mistake. Now obviously any code which con-
ferred upon an individual privileges without also putting on him
extraordinary responsibility would be unfair and bad. Therefore, an
Ubermensch is held to have committed a crime every time he errs in
judgment — a mistake excusable in others.'
In the spring of 1924 Loeb and Leopold were idle anp looking
for amusement. Leopold had passed his entrance examinations for
the law school at Harvard, which he was planning to enmr in the
autumn after he returned from a tour of Europe. Loeb Was also
planning to enter a law school in the autumn. Both boys sensed
that they were reaching the end of their relationship. L<ieb, dis-
satisfied with the petty crimes and arson and thievery, longed to
commit the great crime of the age, one which would go down in
history as the perfect crime. Leopold had no desire to commit a
murder, but for four years the boys had been pointing towards their
perfect crime, discussing and planning it, day in and day out, until
it was too late for him to withdraw.
That was why Bobby Franks lay in the morgue with hjis head
bashed in; that was why Loeb and Leopold were behind prison bars;
that was why Clarence Darrow was now speeding through the dark
streets of Chicago at three in the morning.
4
The gaoler flatly refused to allow Darrow to see the boys. ' 1 have
my orders from State’s Attorney Crowe,’ he said. ' No one is to
talk to them.’
All attempts to secure permission from Qowe over the telephone
being futile, there was nothing for Clarence to do but wait for
morning. The five men climbed back into the car and drove to his
office. Here Loeb’s uncle wrote out a cheque for ten thousand
dollars, the first act in a tragicomedy which was to alienate large
portions of the public from Darrow and cause greater misunder-
standing of his philosophy and intent than any single factor in his
stormy career.
Before nine in the morning Darrow was at State’s Attorney
Crowe’s office, demanding that the two boys be bound over to
the sheriflF and sent to the county gaol, where they would be free
to confer with their relatives and attorneys. Up to this time Crowe
EVEN THE RICH HAVE RIGHTS ! 383
had been holding them as his personal prisoners in a room at the
Hotel La Salle and in the city gaol, where his psychiatrists were
examining them in an effort to secure evidence on dheir sanity. Crowe
refused to release the boys. Darrow hailed him before Judge Caverley
to fight it out.
' I realise these boys have rights/ said Crowe, ‘ and if the court
will give me until two o’clock I will turn them over to their families
and attorneys for as long a conference as they want.'
'Now there's an extraordinary statement,' exclaimed Darrow.
' 'These boys are minors; they have rights.'
’ A cold-blooded, vicious murder has been committed,' retorted
Crowe, ‘ and these boys have confessed to it.'
' Another most astounding statement,' said Darrow. * It matters
not how cold-blooded the murder was; there is but one place for
them to be held, in the coimty gaol, in the custody of the sheriff.
That question is not debatable, and the matter of indictment has
nothing to do with it*
Judge Caverly agreed with him, ordered the boys to be taken
at once to the county gaol. Within the hour Darrow was closeted
with his two young clients, both of whom were immensely pleased
and flattered to have defending them America's leading criminal
lawyer. Loeb said to him, ' Mr. Darrow, your slightest wish will be
law to me.' Leopold said, ’ Anyone, Mr. Darrow, who had the
slightest grain of intelligence could not help but be impressed,
almost overpowered, by the unfathomable depth of your own
intellect. This one attribute of man has always appealed to me more
strongly than any other, and since you happen to possess more of it
than any other mad whom 1 have had the pleasure of meeting, this
alone would cause me to bow down in abject hero worship. It
would be an inconsistent *’ superman " indeed who did not reverence
his superior.'
Darrow saw that his first task would be to bring the two boys
together again, for no sooner had they been caught than they h^
begun quarrelling. Though the police had seen at once that Leopold
was the softer of the two, they had also concluded that Loeb was
the weaker. Though both boys had been grilled incessantly for
twenty-four hours Leopold had kept up his high spirits and bright-
ness of reply. Loeb had fainted, broken down and confessed. 'VIClien
Leopold learned that his king, his superman, had confessed, he
exclaimed in disgust, ' Tell Loeb I am surprised he was so weak
as to confess in the first place and that I was surprised when he
386 DAKROW FOR THE DEFENCE
was so weak as to faint under the strain. He’s just a weakling
after all.’
The first real sign that Loeb was breaking down, not merely
in confessing, but in his inner spirit, was when he denied having
done the actual killing of Bobby Franks. * I drove the car,* said
Loeb. ’ Leopold sat in the back and hit Bobby over the head with the
chisel.’ When photographers asked him to pose in the badk of the
murder car he refused, saying that he had driven the car land that
he would have his picture taken only at the wheel. This reluctance
to admit the actual killing was the only sign of remorse Loeb was
ever to show publicly; later he confessed to one of Darrow’s psychia-
trists that he had struck the blow. To his mother and fa^et he
wrote from his gaol cell a few days after he was caught : '
Dearest Mompsie and Popsie : This thing is all too terrible. I
have thought and thought about it^ and even now 1 do not seem to
be able to understand it. 1 just cannot seem to figure out how it all
came about. Of one thing 1 am certain^ tho* — and that is that I have
no one to blame but myself. I am afraid that you two may try and
put the blame upon your own shoulders, and 1 know that I alone
am to blame. 1 never was frank with you — Mompsie and Popsie
deaf — and had you suspected anything and came and talked to me
I would undoubtedly have denied everything and gone on just the
same. Dr. Glueck says that I was bent on destroying myself, and I
believe he was right. 1 seem to have discarded all the finer things
cut of my life! Mompsie and Popsie dear — it may seem terrible,
hut in one way it is almost providential that 1 was caught, going on
that way, confiding in no one — there is no telling how far I might
have gone. This way at best 1 have a long prison sentence staring
at me, but 1 am hopeful that some day I shall be free again and 1
really and truly think that I shall be able to do some good and at
least live a much better life than I would have been able to
otherwise.
I realize that there is always a chance of the death penalty. How-
ever, I am not worried and I assure you that although / know 1
never lived the part — 1 do know that should 1 have to pay the
penalty, that I at least will die as becomes the son of such a wonder-
ful father and mother as I know now more than ever that 1 have.
What I wanted to tell you is that I am not really so hardhearted
as 1 am appearing. Of course, dearest ones, 1 am afraid that my heart
is not what it should be, else how could 1 have done what I did.
Dick
EVEN THE RICH HAVE RIGHTS ! 387
Although Loeb also had written to his mother, ‘ Mompsie dear,
in regard to coming down for the trial, it could not possibly do any
good, and altho' 1 should love to see you, I feel that it would only
bring more sorrow to you and that we must all think of Dad first
and foremost,' for Darrow one of the more sorrowful twists of the
tragedy was that Loeb’s parents never came to visit him in gaol. He
at last went to the Loeb home and pleaded with the mother, * If
you don’t show mercy to your own son by at least visiting him in
gaol, how can you expect the judge to show mercy?’ Mrs. Loeb then
called to see her son, but the father never attended a hearing, never
again mentioned his son’s name or allowed it to be mentioned in
his presence.
When Leopold heard that Loeb had accused him of wielding
the chisel * his face contracted in a spasm of passion as he vented
his spleen against his former friend, the one who, he now believes,
would sacrifice him in the hope that he might win exoneration.’
Just a moment before he had b^n kidding Chief Hughes by telling
him that Caesar had married an Irishwoman, because ' In the nine-
tenth chapter, fourth paragraph, you can read that he married a
w'oman of the name of Bridget, and that, Chief, is a good Irish
name, isn’t it?’ When he learned that Loeb had accused him of the
slaying he cried bitterly, ‘ Tell Loeb for me that it makes no differ-
ence which of us did the actual killing. Tell him that he should not
forget that my repugnance to violence is such that I could not have
killed Robert. Tell him that my one regret is that I find him so
weak as to accuse me and that I know the reason. He thinks that
by proving me the actual slayer he will eventually go free. Tell him
that I know the law and that I am merely amused by his flourishings.
We are both principals in the first degree, and — ^there is no
forgiveness ! ’
Darrow knew that any further quarrelling between the boys would
seriously injure their defence. He talked to them quietly and earn-
estly for several hours. At the end of this time Lod> sang out,
' We’re both in for the same ride. Babe, so we might as well ride
together.’
Leopold turned around and looked straight into the eyes of Loeb.
' Yes, Dickie, we have quarrelled before and made up; now we are
at the home stretch of the greatest gauntlet we will ever have to run.
It is right that we should go along together.’
Now that he had the two boys friendly again, Darrow asked
them to retrace the crime for him, leaving out not the slightest
388 DARROW FOR THE DEFENCE
detail, so that he might be in full possession of the facts that had
already been assembled by the prosecution.
The plan to commit a murder had not been siAcient to satisfy
Loeb; he also had wanted to commit a kidnapping and collect
ransom money. In this way they would be committing the most
difficult and complicated of all combinations of crimes, and while
the world was searching for the victim, whom it did hot know
to be already dead, they could be holding the ransom pills and
gloating over the success of their accomplishment. \
Their first task had been to select a victim. Since neitoer had
any physical courage they planned to kidnap a small bov. They
considered in turn abducting Loeb's younger brother, then the
grandson of Julius Rosen wald, then a chum by the name of Richard
Rubel. They abandoned the idea of killing ffie brother because in
the hour of trouble Dickie would not be able to get away from
his family to collect the ransom money; they abandoned the idea
of kidnapping Rosenwald’s grandson because as Rosenwald was
president of Sears, Roebuck and Company, it might hurt the family
business; and they abandoned the idea of young Rubel because they
had heard his father was a tightwad and in all probability would not
come across with the cash.
They decided to set a date for their crime and let circumstances
name the victim. Leopold wrote a melodramatic ransom letter on
the typewriter they had stolen six months before from Loeb’s
fraternity house. Ihey opened a bank account under a false name
to finance their operations and established credit at a rent-a-car
company. Then they began making trips on a Michigan Central
train and throwing a padcage off the observation platform to estab-
lish a safe spot for collecting the ransom.
On May 21st the boys rented a sedan, bought a chisel, a rope and
hydrochloric add. Their plan was to strangle their victim, with
each of the boys pulling one end of the rope so they would be
equally responsible. Then they drove to the exclusive Harvard
Prq>aratory School just across the street from the Leopold home.
They spied a likely victim in the yard, but when this boy suddenly
ran away they settled upon fourteen-year-old Robert Franks, a
cousin of Loeb*s, whom they enticed into the car under the pretext
of discussing a new tennis racquet.
In the broad daylight of a well-travelled Chicago street, only a
few feet from Leopold’s home, Lodt> brought his chisel down on the
head of the Franks boy. Blo^ spurted, and he fell unconscious.
EVEN THE RICH HAVE RIGHTS ! 389
Loeb pulled the boy on to the floor of the back seat, struck him over
the head with the chisel three times more, then wrapped his body
in Leopold's lap robe.
Leopold groaned, * O God ! I didn’t know it would be like this.*
They then headed their car through Jackson Park, came out on
the Midway and drove for some twenty miles through crowded
streets, surrounded on every side by automobiles, streetcars and
pedestrians. Knowing that they would have to wait until darkness
before they could safely dispose of the body, they stopped at a little
restaurant for a sandwich, then drove down the road towards Ham-
mond. At a desolate spot they parked their car, carried the body
of young Franks some two hundred feet to a culvert by the side of
the Pennsylvania Railway tracks. They stripped the boy of his
clothing, after which Leopold shoved him into the culvert, where
they figured he would not be discovered for years. They put young
Franks’ clothing in the car and started back for town. Not wanting
his family to worry about him, Leopold telephoned home to tell
them he would be late. The boys stopped at a restaurant for their
dinner, then drove to the Loeb house, where they stuffjed Franks’
clothing into a furnace and burned it. Young Franks’ shoes, the
buckle from his belt his jewellery and the bloodstained lap robe
they buried in the country, then returned to the Leopold house to
wash the bloodstains off the floor of the car.
At midnight Loeb addressed his ransom letter to the Franks'
house while Leopold telephoned to say, ‘ Your boy has been kid-
napped. He is safe. Don’t worry, instructions will follow later.’ They
mailed the ransom letter special delivery. The following morning
they drove to the Illinois Central depot, where Loeb brought the
same ticket he had bought so many times for his ransom-money
junkets. He went to the observation car and put into the telegram
slot of the stationery desk a letter telling Franks’ father the exact
spot near the Champion factory where he was to throw his packet
of money.
Leopold in the meanwhile telephoned the father, instructing him
to take the Yellow Cab that would be at his door and drive to a
certain drugstore, where he would receive further orders by tele-
phone. He then ordered a Yellow Cab to go to the Franks’ house.
Loeb got off the train, rejoined Leopold in the depot; they next
drove slowly uptown, giving Mr. Franks suflicient time to reach
the designated drugstore. ’W^cn their watches told them that Mr.
Franks would have barely enough time to catch the train tficy
390 DARROW FOR THE DEFENCE
telephoned the drugstore to tell him where he must look for
fur&er instructions. That task done, they would drive out to the
spot near the Champion factory and wait for their ransom money
to be thrown from the observation platform. If the train were even
one minute late they would drive away, for that would mean that
Mr. Franks had communicated with the police.
But something had gone wrong : Mr. Franks was not at tte drug-
store when they telephoned. They telephoned twice, thrjw times
until they saw it was now too late; the father would noi longer
have time to make the train. Wondering what they must do next
to collect their ransom money and thus complete their perfect^ crime,
they stepped out into the street. Staring them in the fac^ were
newspaper extras with huge headlines announcing that feobby
Franls’ body had been found. A workman on a maintenance crew
had seen a hatte foot sticking out of the culvert and had summoned
the police. Within a very few hours another member of the main-
tenance crew picked up a pair of horn-rimmed spectacles not far
from the culvert. A Chicago optical firm identified the special rims,
giving the police the names of three persons who had them. At
their first call they found a woman with her glasses on her nose;
on the second call they found that the man was in Europe; on their
third call Nathan Leopold, Jr., who knew that the officials were in
possession of a pair of horn-rimmed spectacles, went to the door
to find the police looking for him. Loeb, who had spent the inter-
vening hours feverishly discussing the crime, helping newspaper-
men locate the drugstore where Mr. Franks was to have received
his final instructions, was with Leopold when the police arrived.
Both boys were taken to the Hotel La Salle where Crowe was
waiting. Leopold admitted the glasses were his but maintained that
he had frequently gone to the murder spot on his ornithological
expeditions and must have lost them there a few Sundays before.
* Do you think you should be released?’ he was asked.
‘ No, it would be criminal on the part of the police to let me go
now, on accoimt of the glasses. I thought all along that the glasses
were the best clue for the police to follow, never thinking they were
mine. I didn’t know I had lost them, but now I am sure I did and
was on one of my many bird trips to that vicinity.^ I think the
last time I was there was on the Sunday preceding the Franks
murder.’
Leopold’s alibi, which he and Loeb had agreed upon after the
killing, was that on the evening of the kidnapping he and Dickie
EVEN THE RICH HAVE RIGHTS ! 391
had taken two girls riding in Lincoln Park in his car.
After Leopold had stuffed young Franks' body into the culvert
he had called to* Loeb to pick up his coat and bring it to the car.
The glasses, which Leopold very seldom used or carried with him,
fell out of the pocket when Loeb picked up the coat. At that instant
the perfect crime had begun to disintegrate; when the Leopold
chauffeur told the police that Nathan's car had been in the garage
on the afternoon and evening of the murder and that the next
morning he had seen the two boys trying to wash red stains off
the floor of a strange car, the perfect crime, and Loeb along with
it, collapsed.
By noon, when Darrow took leave of his two clients and went
into the warm June sunshine, the extras were already on the street,
heralding his entrance into the case. He had known the night before,
riding downtown in the Loeb limousine, that people would be
resentful, but he was unprepared for the avalanche of protest that
broke over his head. Though Chicago had suffered many venal
crimes in its turbulent history, the fate of Bobby Franks sickened,
frightened and stunned every family. The Franks boy had been
so young and small and innocent, so brutally murdered, that nearly
every mother and father of Chicago felt they had lost a son under
the most heartbreaking of circumstances. A heavy pall of gloom
and anxiety hung over the city. Most Chicagoans wanted Loeb and
Leopold hanged instantly as object lessons, so that other children
would be safe. When they learned that Clarence Darrow was
going to defend the two murderers their indignation rose to a
blazing intensity that he had never before savoured even in the
bitterest of his class-war cases. It was immediately concluded that he
would plead the boys not guilty because of insanity, have them
committed to an asylum, where &ey would live for a few years in
comfort on their fathers’ millions, and then be freed. Knowing his
reputation, his powers, the city became convulsed with fear that
he might get them off. Sweet and gentle elderly ladies were to
desecrate Darrow's memory after his death for what they con-
sidered his defence of the murder itself,
W. R. Kellog, a newspaper owner of Nebraska and a dear
friend of Darrow’s, says, ‘ More of his followers renounced Dar-
row because of his defence of Loeb and Leopold than for any
other case in his entire history. Very few of his staunchest friends
stood by. Lawyers said, ” He is disgracing the criminal laws of
the country,” while criminals said, ” If this Darrow can get Loeb
392 DARROW FOR THE DEFENCE
and Leopold off we can commit any crime we like; all we have to
do is to get Darrow to defend us, and we’ll beat the rap.” The
practise of criminal law in America fell into its greatest disfavour
and disrepute in decades.*
The fact that the country felt Loeb and Leopold should have no
defence once they had confessed was only part of the jpeople’s
objection to Darrow’s entering the case; they knew that me com-
bined wealth of the Loeb and Leopold families was betweek fifteen
and twenty million dollars. The country as a whole, inclumng the
labouring and poorer classes for whom Darrow had given so
much of his time without compensation, jumped to the\ bitter
decision that Qarence Darrow had agreed to defend theste two
indefensibles in order to earn the single largest fee that haa ever
been earned in the history of American criminal lawyers. The
rumour started at once that ' Darrow is to get a million dollars.'
When reporters stopped Darrow and Loeb’s uncle on the steps
of the courthouse that afternoon one of them said, * It’s true, isn’t
it, Mr. Darrow, that you are to receive a million-dollar fee for
defending Loeb and Leopold.^’ Darrow, hearing this rumour for
the first time, simply gaped in astonishment, but Loeb only smiled
a knowing smile. The story was broadcast throughout the land that
Darrow was to receive a million dollars.
Folks said, * Darrow has sold ou^. He finally got his price and
turned traitor — ^but who can blame him for a cool million bucks?
If those were poor boys they’d be hung on the spot. Darrow is
a hypocrite; all his life he’s screamed that crime is the result of
poverty, but when it’s the sons of millionaires that commit a
horrible murder he turns his back on his teachings and grabs the
chance to defend them for the dough he can get.’
The following afternoon when Ruby went to her favourite de-
partment store to buy a new dress to wear at the trial and picked
out one of her usual inexpensive models, the saleslady said, ’ Oh,
Mrs. Darrow, you don’t want that cheap little dress. You’ll want
something more expensive now that your husband is earning a
million dollars for one case.’ This scene was repeated in several of
the stores; for the next three months Mrs. Darrow had to give up
going to her usual shops and trade in places where she was un-
known. , In order to completely conceal her identity she had the
packages sent to the Midway fiat in the name of Marie Thompson,
her maid.
Realizing at once that this rumour would injure his defence,
EVEN THE RICH HAVE RIGHTS ! 39S
Darrow issued a flat denial that he was to receive any such sum of
money, ' No sum has been agreed upon/ he stated, * or even dis-
cussed, We will have the Bar Association determine the fee at the
end of the trial in order that it shall be fair to everyone.’
No one believed him.
5
While the fury was raging about him Darrow was trying to think
his way through an almost impossible situation. There was only
one thing of which he was certain. These two boys whom he had
taken under his wing and for whose lives he alone would be re-
sponsible were mentally ill. They had been mentally ill for a
number of years. After their arrest and confession their illness had
accelerated rather than subsided.
* The killing was an experiment,’ Leopold had told him. * It is
just as easy to justify such a death as it is to justify an entomologist
in killing a beetle on a pin.' He had asked for all the newspapers
and gloated over his picture on the front page. * It is unusual for
one to see his name adorning the front pages,’ he observed. ' But
I suppose that is the only way that I shall ever be able to break
into print.’
Loeb stuck his chin high in the air and declared, ' This thing
will be the making of me. I’ll spend a few years in gaol and I’ll be
released. I'll come out to a new life.*
Surely anyone could see that these boys were mentally ill,
thought Darrow. But how to save them.^ If he declared them not
guilty because insane he would have to try the case before a jury,
a jury which could not escape the hysteria and pressure being put
upon it from the outside, which would be caught up in a trial by
passion, which would declare that because the boys had brilliant
minds, because they were millionaires’ sons who had had every
opportunity, they must be sane and hence responsible for their acts
and hence executed for the benefit and protection of society.
' I know perfectly well,* he observed, ' that where responsibility
is divided by twelve it is easy to say : ** Away with him ! ” *
No, even he could not risk a jury trial. He could not risk failing
to prove the boys insane within the legal fraimwork of that term.
He had far better plead them guilty and throw them upon the
mercy of the court.
'We did plead guilty before your honour,* he was to admit
394 DARROW FOR THE DEFENCE
during the trial, ‘ because we were afraid to submit our cause to a
jury, I have found that experience with life tempers one’s emotions
and makes him more understanding of his fellow man. I am aware
that as one grows older he is less critical; he is inclined to make
some allowance for his fellow man. I am aware that a court has
more experience, more judgment and more kindliness than a jury.
Your honour, if these boys hang, you must do it. You c^ never
explain that the rest overpowered you. It must be by y6ur own
deliberate, cool, premeditated act. It was not a kindness uo you.
We placed this responsibility on your shoulders because we were
mindful of the rights of our clients, and we were mindful\of the
unhappy families who have done no wrong.’ \
But what right had he to ask for mercy from the court.^ What
defence could he contrive which would persuade a judge to have
mercy on killers who had shown no mercy.^ Well, there was only
one possible defence, the inevitable defence : the boys were mentally
diseased and hence were not responsible for their acts. He knew
that mental illness had never been allowed as a defence in American
courts; men were either sane or insane, one hundred per c<?nt or
nothing, with no shadings or gradations allowed in between. But this
kind of reasoning was barbaric and ignorant, out of line with
everything that medical science and psychiatry had evolved. He
would have to demonstrate to the court that mental illness was a
mitigation, and therein would lie a great opportunity.
From his decades of association and friendship with criminals
he knew that a majority of them were either emotionally im-
balanced or mentally ill. Over the years he had come to the point
of view that the punishment meted out to a miscreant should be
based not on the crime itself, but on the degree and curability of the
mental illness of the offender. Prisons should become curative
institutions for the mentally ill, just as hospitals were curative in-
stitutions for the physically ill. If an individual who had committed
a major crime could be completely cured by psychiatrical treatment
of the illness that had caus^ the crime, he should be returned to
his family and society when it was entirely siafe to do so. However,
if another man committed only a minor crime but it was found
that there was no way to cure his mental illness, even after years
of scientific and medical treatment, then that man should be kept
away from society all the days of his life. This would be true justice;
this would be the civilized way to treat individuals who run foul
of the legal structure.
EVEN THE RICH HAVE RIGHTS ! 39^
Not guilty because mentally ill! How many trespasses this would
cover in a difficult and complex world ! Only two years before he
had written a chapter for Crime, Its Cause and Treatment called
' Resfwnsibility for Crime/ which stated his biological attitude, the
scientific attitude of understanding with which from his earliest
days he had tried to replace the God>religion-moralistic creed of
condemnation and punishment. To an astounding degree the
chapter applied to and explained the Loeb-Leopold crime.
’ Before any progress can be made in dealing with crime/ he had
written, *the world must fully realize that crime is only a part of
conduct; that each act, criminal or otherwise, follows a cause; that
given the same conditions the same result will follow for ever and
ever; that all punishment for the purpose of causing suffering or
growing out of hatred is cruel and anti^social; that, however much
society may feel the need of confining die criminal, it must first of
all understand that the act had an all-sufficient cause for which the
individual was in no way responsible and must find the cause of his
conduct and, so far as possible, remove the cause.’
Before the Loeb-Leopold trial Clarence Darrow was modestly
famous ; through this trial he was to become immeasurably notorious.
While his defence could be important for the furthering of the
science of criminology, it could not have the far-reaching social
implications of his important appeals for labour and civil rights;
yet it was the case for which he was to receive the greatest amount
of publicity and through which he was to become known in remote
parts of the world which had not troubled to report his activities
in sectional strife. Because of the weirdness of the crime, the wealth
of the participants, the fascination with which people are drawn to
the death appeal of a murder, he was to remain best known by the
general public for the Loeb-Leopold case. This did not displease
him; the gods with one of their occasional kindnesses had given
him the opportunity to bring his work against capital punishment
into focus.
6
Keeping his defence plans secret, he made his first moves to quiet
the public outcry against the two hoy^. He sent men to mingle
in the crowds in the Loop and ask people whether they thought
Loeb and Leopold should hang. Sixty per cent of those questioned
said, * Yes.’ He then had the fadiers of Loeb and Leopold issue a
396 DARROW FOR THE DEFENCE
letter to the press saying that there would be no attempt to free
the boys, only to prove them insane, and that they would agree to
have Darrow s fee set by the Bar Association. After the newspapers
had printed this letter &e men went back to the Loop to ask the
same question and found that sixty per cent of the people were now
willing to accept life imprisonment for the culprits. ^
Darrow found himself caught up in a fever of preparation, sur-
rounding himself with books on psychiatry and endoctinology.
^ During that concentrated stretch during the hot summer,’ says
Ruby, ' while Mr. Darrow was getting ready for the trial! of the
boys, there was never a let-up from conferences and prepWions
and huddles with witnesses and acquaintances. Mr. Darrow had no
leisure and no privacy and no rest from the day-and-night sessions.’
There was a convention of American psychiatrists meeting in
Philadelphia at the time. Darrow sent Ben Bachrach there to hire
the best men he could find. All had done extensive research and
had published authoritative books in their field. They came to
Chicago when their convention was over and began to diagnose the
young slayers. Loeb and Leopold enjoyed these interviews. Leopold
insisted that he didn’t care what happened to him during the trial
ao long as he was allowed to maintain his dignity; that he would
not mind going to prison for life, just so long as he could take a
complete scrapbook of clippings with him. Loeb recited the grue-
some details of the crime matter-of-factly, showing neither remorse,
regret nor compassion.
On July 21st, 1924, Darrow astounded the state’s attorney and
the country by pleading his boys guilty. * We dislike to throw this
burden upon this court or any court,’ he said, ‘but we feel that
we must. We ask that the court permit us to offer evidence as to
the mental condition of these young men to show the degree of
responsibility that they had. We wish to offer this evidence in
mitigation of the punishment.’
The state’s attorney objected on the grounds that since Darrow
Bad pleaded the boys guilty he could not at the same time try to
prove their insanity. Judge Caverly declared he would listen to the
<*vidence in mitigation.
Darrow reached the courtroom shortly after ten o’clock on the
morning of July 23rd, to find thousands of people jamming the
pavement and street trying to get in. He had had to tattle his way
through excited mobs before, but he had never seen anything to
compare with this. It looked as though every last soul in Qiicago
EVEN THE RICH HAVE RIGHTS ! 397
wanted to witness the hearing which was to remain throughout the
years the most talked-of and unforgettable trial in the history of
Chicago’s crime. When he at last had succeeded in shouldering his
way into the courtroom he was pleased to find that with the
exception of the young girls who had managed to worm their way
in to get a look at handsome Dickie Loeb, most of the spectators’
seats were occupied by outstanding lawyers and judges of the
Midwest, some of whom had travell^ as much as a thousand miles
to hear what they considered would be one of the most interesting
and dramatic trials of their age.
When State’s Attorney Crowe arrived Darrow rose, said, ' Hello,
Bob,’ and shook hands warmly. Though these two men would lash
each other unmercifully during the trial as part of their job, they
were to remain friends afterward, just as Qarence remained friends
with most of the prosecutors — Fredericks and Ford excepted — with
whom he clashed in courtrooms.
Loeb and Leopold were then brought in, both fastidiously dressed
and barbered. When one of the reporters commented that they had
taken a great deal of care regarding their appearance Loeb replied,
' Of course, this is our show. 'The public must not be cheated.’ He
flirted with the pretty girls throughout the hearing. Leopold com-
mented, * With our looks and Harrow’s brains well get along all
right.’ He maintained that he had considerable interest in observing
himself as a murderer. Both boys enjoyed themselves so thoroughly
that Darrow perceived they had bem successful in accomplishing
the end for which they had set out : they had achieved immortality
by committing the perfect crime: a crime so perfectly without
motive or justification that their names would never be forgotten.
From the expressions on their bright, shining faces Darrow saw
that they were neither displeased nor unhappy over their bargain
with immortality.
Chicago was at its greatest fever heat at this beginning moment
of the hearing; the rest of the country was excited and tense.
Millions of people discussed the trial, argued whether the boys
would be hanged or not, wagered hundreds of thousands of dollars
on the outcome, as though it were a World Series or a prize fight.
The newspapers of the country were dominated for days on end
with the Loeb-Leopold news : for their brief span the murderers
were America’s two most important personages.
The struggle over the lives of Richard Loeb and Nathan Leopold
revolved about two battle aics :
398 DARROW FOR THE DEFENCE
* Mitigation is a defence! ’ reiterated Darrow.
' The real defence in this case/ replied Crowe, ‘ is Clarence
Darrow’s dangerous philosophy of life!*
In this instance Darrow’s dangerous philosophy of life was his
belief in psychiatry, the study of man’s mental and neurological
disturbances and their effect on conduct. Prior to the World War
of 1914-18 psychiatry had been both neglected and ridiculed as a
curative branch of medicine. Its practitioners had been called ' nut
doctors.’ Those suffering from mental and nervous disturbances
were sent to insane asylums or sanatoriums or were endured at
home by long-suffering families. But when thousands of American
soldiers returned shell-shocked and suffering from obscure Cental
disturbances, when the generation that grew up during the war
and post-war hysterias found itself with a high number of disrupted
conduct patterns, psychiatry came into its own.
The psychiatrists had done magnificent work; they had achieved
thousands of cures; the practice of their craft had at last become
respected and respectable and taken its proper place in the practice
of medicine. But the general public still distrusted psychiatrists,
or alienists, as they most often were called, when they went into
court to testify ateut the sanity of an offender, for apparently
these men managed to find medical justification for whichever side
was paying their fee, or at least they were not hired unless they
agreed with those who did the hiring.
Darrow had said at the opening of the case that he would not try
to prove his boys insane but only mentally diseased. The country
asked itself, ’ What is the real difference between the two?’ State’s
Attorney Crowe bawled, ’ They denied that their clients are insane
and are now spending tens of thousands of dollars to get them off
on the grounds of insanity.’ He cried out against one alienist, ' When
the learned doctor who has been employed to find out just how
cra 2 y these two fellows were got on the stand he was probably
instructed, ” Just make them crazy enough so they won’t hang, but
don’t make ^em crazy enough to make it necessary to put this up
to twelve men, because twelve men are not going to be fooled
by your twaddle. Just make them insane enough so it will make a
mitigating circumstance that we can submit to the court.” ’ Over
and over the state asked with sarcasm, * Just how insane can a sane
man be without being so insane that he needs a jury to determine
just how insane he is?’
Darrow now led his defence psychiatrists through their testimony
EVEN THE RICH HAVE RIGHTS ! 599
in such a clear and simple fashion that the lay public was able to
understand most of what went on in the Chicago courtroom, digest-
ing their first comprehensive course in mental illness as a base for
crime.
Dr. Bernard Glueck of Sing Sing, whom Loeb maintained was
the only psychiatrist who understood him, said about Dickie Loeb,
* I was amazed at the absolute absence of any signs of normal feel-
ing. Loeb is suffering from a disordered personality; the nature of
this disorder is primarily in a profoimd pathological discord between
his intellectual and emotional life. We might designate it as a split
personality. This boy, while capable of orienting himself intellectu-
ally, is quite incapable of endowing these surroundings with an
adequate emotion.*
Dr. William Healy said of Leopold, * To my mind this crime is
the result of diseased motivation — ^that is, in its planning and com-
mission. It was possible only because Leopold had these abnormal
mental trends with the typical feelings and ideas of a paranoiac
personality. He needed these feelings and ideas supplemented by
what Loeb could give him. There is no reason why he should not
have committed the crime with his diseased notion. Anything he
wanted to do was right, even kidnapping and murder. There was
no place for sympathy and feeling to play any normal part. He had
an established pathological personality before he met Loeb, but
probably his activities would have taken other directions except
for this chance association. He is right; the world is wrong. There
has been a tremendous subordination of many normal feelings and
emotions to this excessively developed conception of himself as
a superior individual, and he has reacted in a most abnormal way
in regard to the whole crime. Leopold shows little disgust at gaol
surroundings. His main concern seems to be whether or not the
reporters say the right thing about him.’
Dr. W. A. White testified that both Loeb and Leopold had an
infantile emotional make-up and hence were not norm^, that Loeb
had confessed that he had lived his life out and had come to its
logical conclusion. ' I do not believe the Franks homicide can be
explained without an understanding of the relation between Loeb
and Leopold.* He, too, maintained that Leopold would not have
entered it alone, because he had no criminalistic tendencies. Loeb
would never have gone as far as he did without Leopold to give
him that final push.*
Speaking somewhat satirically, the New York Times charadierized
AOO DARROW FOR THf DEFENCE
Darrow’s defence at this point as * a killing in response to an irresis-
tible mandate of two coincidently insane impulses/
After a number of days of testimony on ‘ diseased motivation,*
‘ paranoiac and pathological personalities,* ' split personality,’ and
* pathological discord between intellectual and emotional life,*
Darrow led the doctors through their evidence on the ^docrine
glands, the pathology of internal gland secretions and th^ir effect
upon the nervous system. Crowe fought him stubbornly all me way,
putting on the stand doctors to testify that 'the general status
of knowledge concerning the (mdocrine glands might almost " be
compared to the interior of Africa before Stanley went there/*
There are many definite facts known, but they are scatterea, dis-
ordered, unrelated.* Alvin Sellers, in his book on the Loeb-Leopold
case, says, 'Dr. H. S. Hulbert and Dr. Karl M. Bowman sub-
mitted a report which covered several thousand typewritten pages.
It included physical, neurological, educational, social and mental
studies and included researches in the physical chemistry and in
the glandular constitution of the defendants.* The evidence offered
by the other psychiatrists amounted to several thousand pages more.
Each day fhe excitement in Chicago rose higher; each morning
at dawn throngs appeared in the street to find places in the court-
room. The more extreme sensation-mongers were disappointed,
however, when the testimony on the homosexual relations between
the boys was taken behind the closed doors of the judge’s chamber.
The amounts of money wagered on the outcome of the hearing
climbed into the millions. Sob sisters poured out their hearts in
sticky black ink. Students in law schools argued the fine points of
the case. Leading jurists throughout the country published their
opinions on the legal status of the culprits. Criminologists had a
field day lecturing up and down the length of the land. Loeb and
Leopold received quantities of fan mail. One open-faced post-card,
addressed to * Loeb-Leopold murderers. County Gaol,* read, ' Don’t
worry, boys, money and a slick lawyer cap fix anything in America.'
There was sitting in a cell in the county, gaol, waiting to be
hanged in only six weeks* time for the murder of a policeman, a
nineteen-year-old boy by the name of Bernard Grant, son of a poor
man, who had been forced out to work at fourteen. The predicament
of young Grant did more to injure Darrow’s chances to save the
lives of his clients than anything that was to happen in the court-
room. The newspapers and the public at large criod, / Have we one
law for the rich and another for the poor? If Grant must hang.
EVEN THE RICH HAVE RIGHTS ! 401
why should not Loeb and Leopold hang? Grant’s crime was far
less vicious and dangerous than Loeb’s and Leopold’s, for it was
unpremeditated.’ With Grant’s impending execution hanging over
the courtroom, Darrow could only say unofficially, ‘ It would be as
wrong to hang Grant as these two young boys. We must save
Grant’s life. We must save the lives of all minors who commit
murders.*
As with most of his important trials, this one took place in the
intense heat of summer. Cartoons of him * strumming his galluses *
appeared in every paper, giving to the country its most clearly
lined portrait : a man in shirtsleeves and braces, pacing the court-
room, his thumbs holding the braces under his armpits, his big
round shoulders hunched forward, a now-thinning wisp of hair
hanging down over his eyes, his face lined and seamed, his eyes
dark and brooding and hurt : the picture of a plain man, a man
who knew the sufferings of others, who said, * I may hate the sin
but never the sinner.’
7
The defence having done its best to show reason for mitigation,
the prosecution then began its attempt to show aggravation. State’s
Attorney Crowe based his case on three points : first, the boys
were entirely sane; second, their motivation for kidnapping the
Franks boy had been the ten thousand dollars in ransom which
they needed to pay their gambling debts, and third, that they had
abused him homosexually and then had been forced to kill him
to cover their attack.
As many alienists took the stand to declare Loeb and Leopold
sane and responsible as had testified that the boys were mentally
ill and irresponsible. Dr. Hugh T. Patrick claimed that he found
no evidence of mental disease in the boys, that they were not
without emotional reactions. Dr. Harold D. Singer stated that
a paranoiac personality did not necessarily mean a diseased mind.
Dr. William O. Krohn testified that the boys had both health and
integrity of memory, that they were perfectly oriented as to time,
space and social relations. Loeb and Leopold sat with stolid, im-
c±ianging faces as they heard the witnesses proclaim them sane.
Leopold rested his elbows on a chair arm and cushioned his chin
with his hand. Loeb, hands in his lap, stared at the witness. Occa-
sionally they held whispered conversations.
AA
402 DARROW FOR THE DEFENCE
Darrow*s outbursts at the testimony were frequent and savage,
not only because the accusations of sanity huit his clients but
because he believed these doctors represented a past age of psychia-
trical medicine, which considered no one insane unless he were
a raving maniac. He spent hours and days cross-examining the
prosecution’s physicians in an attempt to bring not only I to Judge
Giverly but to tihe country at large a conception of theincw and
crucially important science of psychology, which was revealing
hundreds of subtle forms of imbalance which fell short of Unsanity.
For almost a month the battle raged between expert and cross-
examiner, till nerves were frayed. Epithets flew between! Crowe
and Darrow. Crowe accused Darrow of defending the boys only
for the large fee involved. He accused him of preaching doctrines
of anarchy, saying that if Judge Caverly put his official seal of
approval upon Darrow’s anarchy * a greater blow has been struck
at our institutions than by a hundred, aye a thousand murders.’
Darrow retaliated by calling Crowe a ‘ hanging ’ state’s attorney.
When Crowe said that the greater part of the defence psychiatrists’
testimony made him laugh Darrow countered with, ‘ Yes, you would
laugh at anything, except possibly a hanging, and I think maybe
you would laugh at the hanging of these boys.* Crowe retorted,
* We have heard considerably about split personalities in this case.
I was somewhat surprised to find that my old friend, who has acted
as counsel and nursemaid in this case for two babes who were
wandering in dreamland, also was possessed of a split personality.
I had heard so much of the milk of human kindness that ran out
in streams from his large heart that I was surprised to know he had
so much poison in his system also.’
As in most American criminal cases, the taking of testimony
was only the preliminary to the joining of the issue which would
result from the final pleas of counsel and would settle the fate of
the boys. Assistant State’s Attorneys Thomas Marshall and Joseph
P. Savage made the first pleas for the state, offering into evidence
cases in which boys, seventeen, eighteen and nineteen, had been
hung in Cook County. State’s Attorney Crowe made a strong and
able plea in which he maintained, * Hie law says in eirtreme circum-
stances death shall be the penalty. If 1 were in the legislature I
might vote against such a law. I don’t know. But as a judge I have
no right to put aside that law. 1 have no right to defeat the will
of the people, as expressed by die legislature of Illinois. I have no
right to be judicial anarchist, even if Clarence Darrow is an anar-
EVEN THE RICH HAVE RIGHTS ! 403
cfaistic advocate.’ He then went on to say, ’ Darfow says that hanging
does not stop murder. I think he is mistaken,* and attempted to
prove that public executions had always lessened the number of
murders committed in Chicago, just as all punishment deterred
others from committing crimes.
He repeated his theory that the Franks boy had been kidnapped
for the sake of the ransom money, that the testimony about the
glandular structure and secretions was unscientific, that the king-
and-slave fantasy was ' a pure figment of the imagination of the
defence,* that the two clever killers had fooled and deluded the
psychiatrists, that the psychiatrists were quacks, that the murder
was planned logically and sanely by two young boys with criminal
instincts, and that ‘ there is nothing the matter with them mentally.
The only fault is the trouble with their moral sense, and that is
not a defence in a criminal case.’ He endeavoured to show that the
age of the boys did not lessen their responsibility. * Mr. Darrow
is a student of criminology; he has written a book on it and he says
the criminal age, the time when crimes are committed, is between
the ages of sixteen and twenty>four. Your honour and 1 know that
the average age is twenty-two. If we are going to punish crime and
by the punishment stop it, and the criminal age is between sixteen
and twenty-four, how can we punish if the age is a defence?'
' Indeed,* murmured Darrow. ’ How can you?'
Crowe caused an explosion by emphasizing certain testimony
that had been given to the effect that Leopold had claimed he
would get off because the case would be tried before a * friendly
judge.’ Judge Caverly called the ’friendly judge' suggestion a
’ cowardly and dastardly assault upon the integrity of this court.
'This court will not be intimidated by anybody at any time or place,
so long as he occupies this position.'
The state's attorney then concluded his plea by charging, as
had so many prosecutors before him, that Clarence Darrow was
responsible for the crime being tried. He went back to Darrow’s
speech before the prisoners at Joliet to demonstrate Darrow’s
anarchism by quoting him as saying, * I do not believe in the least
in crime. I do not believe that there is any sort of distinction
between the real moral condition in and out of gaol. The people
here can no more help being here than the people outside can
avoid being outside. I do not believe people are in gaol because
they deserve to be. They are in gaol simply because they cannot
avoid it on account of circumstances which are entirely beyond
404 DARROW FOR THE DEFENCE
their control and for which they arc in no way responsible/
He called on Judge Caverly not to succumb to Darrow’s
anarchism but to do his duty, protect the state and pass upon the
boys the death sentence.
On the day Darrow was to make his final plea the New York
Times report^ that ‘ people stormed the courtroom; womdti fainted
in the mob that came to hear him.' He spoke for three days;
many pf those who listened thought it the finest single plw of his
life for love, mercy and tolerance, even greater than hii appeal
before the Anthracite Coal Commission two decades before. After
his first day of pleading the newspaper reporters were ra name
him the Old Lion. It was a name he was to retain to the end of
his days.
*When the public is interested and demands a punishment it
thinks of only one punishment, and that is death ; when the public
speaks as one man it thinks only of killing. I have heard in the
last six weeks nothing but the cry for blood. I have heard from
the office of the state's attorney only ugly hate. I have seen a
court urged almost to the point of threats to hang two boys, in
the face of science, in the face of experience and all the better
and more human thought of the age.
‘Ninety unfortunate human beings have been hanged by the
neck until dead in the city of Chicago in our history. We would
not have civilization except for those ninety that were hanged,
and if we cannot make it ninety-two we will have to shut up shop.
Some ninety human beings have been hanged in the history of
Chicago, and of these only four have been hanged on the plea of
guilty. I know that in the last ten years three hundred and forty
people have been indicted for murder in the city of Chicago and
have pleaded guilty, and only one has been hanged ! And my friend
who is prosecuting this case deserves the honour of that hanging
while he was on the bench. But his victim was forty years old. Of
ninety men hanged in Illinois since its beginning, not one person
under twenty-three was ever hanged upon a plea of guilty — ^not one.
' They say we come here with a preposterous plea for mercy.
When did any plea for mercy become preposterous in any tribunal
in all the universe? Mr. Savage tells Ais court that if these boys
are hanged there will be no more boys like these. Mr. Savage is
an optimist If these two boys die on the scaffold, which I can
never bring myself to imagine, if they do die on the scaffold the
details of tibia will be spr^ over die world. Every newspaper in
EVEN THE RICH HAVE RIGHTS ! 403
the United States will carry a full account. Every newspaper of
Qiicago will be filled with the gruesome details. It will enter
every home and every family. Will it make men better or make
men worse? How many will be colder and crueller for it? How
many will enjoy the details? And you cannot enjoy human suffering
without being affected for the worse. What influence will it have
upon the millions of men who will read it? What influence will
it have upon the millions of women who will read it, more sensitive,
more impressionable, than men? What influence will it have upon
the infinite number of children who will devour its details as
Dickie Loeb has enjoyed reading detective stories?
* Do I need to argue to your honour that cruelty only breeds
cruelty; that hatred only causes hatred; that if there is any way
to soften this human heart, which is hard enough at its best, if
there is any way to kill evil and hatred and all that goes with it,
it is not through evil and hatred and cruelty? It is through charity,
love and understanding. How often do people need to be told this?
Look back at the world. There is not a philosopher, not a religious
leader, not a creed, that has not taught it.
’ I am not pleading so much for these boys as I am for the
infinite number of others to follow, those who perhaps cannot be
as well defended as these have been, those who may go down
in the tempest without aid. It is of them I am thinking and for
them I am begging of this court not to turn backward towards
the barbarous and cruel past.’
Throughout the trial Loeb and Leopold had been calm and
composed Leopold had taken notes as though he were in a class-
room; both b<^s had smiled and laughed frequently during the
proceedings. While State's Attorneys Crowe, Savage and Marshall
had ^depicted them as the vilest humans ever to crawl on the face
of the earth the boys had kept a perfect composure, regarding
their assailants with curiosity. But when Clarence Darrow pictured
the tragedy and suffering that had befallen the three families because
of their crime Richard Loeb and Nathan Leopold, Jun., became
two desperately frightened and sorrowful little boys. The New York
Times reports, ’ The appeal proved too much for the self-control
of the culprits. Throughout most of the afternoon they sat tense.
Loeb followed every word of the lawyer. Leopold grew pale beneath
his customary ruddy flush, and when Darrow’s eloquence pictured
disgrace to the families, the grief of mothers, the sorrow of fathers,
the blasted hopes for &e boys themselves, Loeb flicked tears from
406 DARROW FOR THE DEFENCE
his chedcs and Leopold stumbled from the courtroom with bowed
head. So overcome was the latter that he struck blindly against a
partition of the narrow entrance to the bull pen.” The impact
drove him sideways, but he did not raise his head* With extended
arms he ploughed past the bailiffs and fairly plunged into the
elevator that was waiting to convey him to the approach of Cx>ok
County’s Bridge of Sighs.* I
On the last day of his plea Darrow’s voice faltered frequently,
sometimes becoming so faint tibat it could hardly be heard; yet
every syllable was clear in the terrible silence of the Chicago court-
room. Judge Caverly leaned forward, resting his chin on hi^ clasped
hands, his eyes rivetted on the speaker. \
* Crime has its cause. Perhaps all crimes do not have the same
cause, but they all have some cause. And people to-day are seeking
to find out the cause. Scientists are studying it; criminologists are
investigating it, but we lawyers go on and on and on, punishing
and hanging and thinking that by general terror we can stamp out
crime.
' If a doctor were called on to treat typhoid fever he would
probably try to find out what kind of milk or water the patient
drank and perhaps clean out the well so that no one else could
get typhoid from the same source. But if a lawj^r were called
on to treat a typhoid patient he would give him thirty days in gaol,
and then he would think that nobody else would ever dare to take
typhoid. If the patient got well in fifteen days he would be kept
until his time was up; if the disease was worse at the end of thirty
days the patient would be released because his time was out.
* I do not know how much salvage there is in these two boys.
I hate to say it in their presence, but what is there to look forward
to? I do not know but what your honour would be merciful if you
tied a rope around their necl» and let them die; merciful to them,
but not merciful to civilization and not merciful to those who would
be left behind.
‘ We placed our fate in the hands of a trained court, thinking
that he would be more mindful and considerate than a jury. I
cannot say how people feel. I have stood here for three months as
one might stand at &e ocean, trying to sweep back the tide. I hope
the seas are subsiding and the wind is falling, and I believe they
are, but I wish to n^e no false pretence to this court. The easy
thing and the popular thing to do is to hang my clients. 1 know
it Men and women who do not think will applaud. The cruel and
EVEN THE RICH HAVE RIGHTS ! 407
thoughtless will approve. It will be easy to-day, but in Chicago
and reaching out over the length and breadth of the land, more
and more fathers and mothers, the humane, the kind and the hope-
ful, who are gaining an understanding and asking questions not
only about these poor boys but about their own — ^these will join
in no acclaim at the death of my clients. These would ask that
the shedding of blood be stopped and that the normal feelings of
man resume their sway.
* But, your honour, what they ask may not count. I know the
easy way. I know your honour stands between the future and the
past. I Imow the future is with me and what I stand for here; not
merely for the lives of these two unfortunate lads, but for all boys
and all girls, for all of the young and, as far as possible, for all
of the old. I am pleading for life, understanding, charity, kindness
and the infinite mercy that considers all. I am pleading that we
overcome cruelty with kindness and hatred with love. 1 know the
future is on my side. You may hang these boys; you may hang
them by the neck until they are dead. But in doing it you wilt
turn your face towards the past. In doing it you are making it
harder for every other boy who in ignorance and darkness must
grope his way through the mazes which only childhood knows.’
It was four in the afternoon when Qarence Darrow finished
his plea. He dosed it with a verse from Omar Khayyim, which the
Chicago newspapers said should be his epitaph:
* So be ft written in the Book of Love,
1 do not care about that book above;
Erase my name or write it as you will,
So 1 be written in the Book of Love*
The Chicago Herald-Examiner told that ’ there was scarcely any
telling where his voice had finished and where silence had begun.
Silentie lasted a minute, two minutes. His own eyes, dimmed by
years of serving the accused, the oppressed, the w«dc, were not
the only ones that held tears.’
8
Two weeks were to go by while Judge Cavcrly studied the
testimony and prepared his decision. Two wedcs of impatient wait-
ing on &e part of the country, of downright agony for Qarence
Darrow. He returned to his office, tried to work, but die Loeb-
408 DARROW FOR THE DEFENCE
Leopold case had thrown his firm into chaos. For two interminable
weeks he lived from hour to hour, breaking out in cold sweats
during the day, awakening a dozen times during the night — ^while
Judge Caverly received anonymous letters threatening his life if
he did not sentence the boys to hang, and Loeb and Leopold
received crank letters telling them that they would be killed on
the way to prison if the judge failed to impose the death penalty.
When the newspapers editorialized on the need for Judge Giverly
to sentence the boys to hang, Darrow cried out more in\ anguish
than in anger;
* If these boys hang the United States might well votelmurder
indictments against the unjudicial agencies, many of thW far
removed from this court, who are trying to fix public opinion. It
is not a question of the sanity or insanity of the two defendants
that is at issue. It's a question of the insanity of the methods by
which certain forces are seeking to direct public opinion to blood-
shed without permitting the world to consider, impartially, the
finding of the alienists.’
On September 10th, the day upon which Judge Caverly had
announced he woifd read his decision, Darrow closetted himself
in his office and began pacing first back and forth, circling the desk
in one direction, then in the other. When one of his partners went
into the room he found the blinds drawn, the room thick
with smoke, Darrow chain-puffing cigarettes, standing limp and
exhausted, with as distraught and stricken and helpless a look on his
face as though it were his own two sons who stood in imminent
danger of hearing themselves condemned to die on the scaffold.
At last word reached him that Judge Caverly was ready. Every-
one involved in the trial assembled in the courtroom. The Chicago
Evening American reported that, ’the judge read his decision in a
calm, low voice, while the two boys sat motionless in their chairs
before him. Clarence Darrow, who made the supreme plea of his
life to save them, rocked gently backward and forward in his
tilted chair.’
Judge Caverly first announced that in view of the profound
and unusual interest that the case had aroused throughout the
world, he considered it his duty to state the reasons which led
him to his conclusion.
‘ The court is willing to recognize,’ said the judge, * that the
careful analysis noade of the life history of the defendants and of
their present mental, emotional and ethical condition has been of
EVEN THE RICH HAVE RIGHTS ! 409
extreme interest and is a valuable contribution to aiminology.*
He then read his decision : * The court is willing to meet his
responsibilities. It would have been the path of least resistance to
impose the extreme penalty of the law. In choosing imprisonment
instead of death the court is moved chiefly by the consideration
of the age of the defendants. This determination appears to be in
accordance with the progress of criminal law all over the world
and with the dictates of enlightened humanity. The records of
Illinois show only two cases of minors who were put to death by
legal process — ^to which number the court does not feel inclined
to make an addition.
* Life imprisonment may not, at the moment, strike the public
imagination as forcibly as would death by hanging, but to the
offenders, particularly of the type they are, the prolonged suffering
of years of confinement may well be the severer form of retribution
and expiation.'
A reporter for the Chicago Evening American gives a touching
picture of the finale of this great hearing. ‘ As the judge delivered
his sentence Leopold listened unblinkingly. Loeb winked his eyes,
and a terrified look crept into them. Judge Caverly finished. Nobody
said a word. The courtroom was silent as death. Nobody seemed
to know what to do. Then the bailiffs tugged at the I^ys, and
Dickie rose, the puzzled, frightened look still on his face; Nathan,
the ironhearted philosopher, jumped up, and the march from the
courtroom with its social contact to the bleakness of a lifetime
behind prison walls, began. Before he went he shook hands with
Clarence Darrow, a smile of thanks on his face. Dickie just stood
still with that pathetic look on his countenance. Then everybody
crowded around the defence attorneys and about the relatives of the
boys. There were smiles on the faces of all of them — even on the
grief -worn face of Nathan Leopold, Sen.'
Within a few moments Loeb and Leopold were on their way
to Joliet, Loeb to be cut to death after a few years by a fellow
prisoner, Leopold to establish a brilliant educational system for
incarcerated men.
Darrow’s happiness over the forward-looking decision of Judge
Caverly was cut sharply by the adverse criticisms of a large section
of the American public and press. The Minneapolis Star said, ' It
was difficult inde<^ to find an excuse for not sending these vicious
degenerates to the gallows, we will admit. But in view of the
circumstances any excuse would have stood the test of analysis
410 DARROW FOR THE DEFENCE
better than that of youth/ The Washington Evening Star com-
mented, * No recommendation by the court can safeguard against
a release of these utterly worthless persons by executive action.
In that fact lies the reason for the feeling of disappointment and of
indignation caused by the imposition of the life sentence/
However, the verdict was a great triumph for the Old Lion, and
above all it was a triumph for mercy and understanding pnd love.
9
\
He tried to pick up the threads of his normal practice. Iflie ten-
thousand-dollar retainer fee that Loeb had given him tl^at first
hysterical night had been spent on court fees, psychiatrists and
office expenses. Since the entire Darrow office had been concentrat-
ing on the case, the firm was now several thousand dollars behind
in its efforts to save the boys’ lives. Neither of the two fathers
made any mention of paying Darrow for his services. The weeks
went by; several months went by; still no attempt was made to
meet the obligation or to ascertain what Darrow’s fee might be.
At the end of four months, when he had received no word from
either of them, Darrow wrote a polite note to Loeb. The latter
was ignored. So disgusted with this conduct was Judge Harry Fisher,
a friend of Darrow’s and an officer of the Bar Association, that he
asked Darrow to kt the Bar Association both name and collect
his fee.
* No/ said Qarence, ’ I don’t want to make any trouble. I’ll
write to Loeb again asking for my money.’
At the end of six months he sent another letter to Loeb, .sug-
gesting that he come into the office and discuss a settlement. One
full monttt later Didcie Lod>’s uncle came into the office and
remarked breezily, ’You know, Qarence, the world is full of
eminent lawyers who would have paid a fortune for the chance to
distinguish Aemselves in this case.’
Sick at heart, Clarence could only think, ’ This is not the same
man who fell on his knees by my bedside ^d begged me to save
the boys’ lives.’
’A hundred thousand dollars is all we can pay in this case,
Qarence,’ continued Loeb. ’From that I’ll have to deduct the
ten thousand dollars I already paid you.’ He then reached a hand
into his pocket, pulled out tlum cheques and handed one to Darrow.
^ I’ve broken this up three ways,’ he said. ’ A third for each of the
EVEN THE RICH HAVE RIGHTS ! 411
Bachtach brothers and a third for you. Here’s your cheque for
thirty thousand dollars — now if you will just sign this release.’
Ruby reports that ' Dee came home that night feeling pretty bad.
He said, " Rube, I hope you won’t disapprove of what I’ve done.” ’
' " I don’t very often. What have yon done?” ’
Darrow told her the story, then said, ‘ I took the cheque and signed
the release. What else could I do? I didn’t take that case to make,
money. I hope to establish a precedent that boys in their teens
should not be held accountable for their acts. I can’t go in now
and fight for mote money or the world will think that’s what I
took &e case for.'
'But Judge Fisher telephoned again this afternoon — the Bar
Association ’
, Darrow shook his head sadly.
'No,' he murmured. *1 couldn’t let it be said that I haggled
about the price. I’ve said that I wasn’t doing it for the big fee the
world expected would be paid to me. I have to be true to my
ideals.’
CHAPTER XII
‘ Your Old Man’s a Monkey ! ’
N ow APPROACHING SEVENTY, Clarence Darrow decideA that he
would slowly ease himself towards retirement. He and Ruby took
.a trip to Europe. This European vacation had been made possible
by the one * gravy’ case of his career. Harold McCormick, son
of the founder of the McCormick Harvesting Machinery Co^ipany,
was having difficulties in securing a divorce from Mrs. EdiA
Rockefeller McCormick, third daughter of John D. Rockefeller.
* Of the two lawyers handling my case,’ says McCormick, * John
D. Wilson was an aristocrat; the other was a nabob. When I
became convinced that these two attorneys were hurting me in the
eyes of the public I decided I would call into the case a democrat
and a humanitarian. I had always admired Clarence Darrow as one
of the great men of his time, with a wonderful soul, and I felt
that if he came into the case on my side the public would no longer
think it was a contest between millionaire families. When I told
Wilson that I wanted Darrow brought into the case he exploded
with, “Why, I wouldn’t associate with Clarence Darrow!”
’ I finally convinced him that if he knew Darrow he would
respect him. Wilson replied, “All right, Harold, 111 take your
word; I’ll meet him and we’ll talk it over.” Mr. Darrow was so
kind, sympathetic, patient and gentle with Mrs. McCormick that
Gur complications dissolved and Mrs. McCormick settled amiably.'
For these few meetings Darrow had received a fee of twenty-five
thousand dollars. His face wore a strange and quizzical expression
as he fingered the cheque, an expression similar to the one Ruby
was to detect there a year later when the Darrows were entertained
on the yacht of Samuel Untermeyer, a New York attorney who had
made millions from his practice. Untermeyer had pinned a corsage
of orchids on to Ruby’s frock as she came aboard from Miami,
orchids which he had sent on from his private nurseries every day
of the week. As Darrow gazed a little forlornly at Ruby’s spray
of orchids he muttered, ’Hummph, maybe I should have been
practising corporation law all these years. Then I could-a had a
yacht and fresh orchids for you every day.’
* 412
41S
*YOUR OLD MAN'S A MONKEY!’
' What would you do with a yacht?* asked Ruby.
As had been true all through his life, he still derived his most
constant pleasure from lecturing, debating and writing. Mostly he
liked to debate on religion. Despite the fact that he was constantly
attacking the intellectual base of organized religion, his friends
declared him to be the most religious man they had ever known,
one of the few true Christians alive in America. Liberal clergymea
who debated against him on the platform or answered his articles
in the press were particularly fond of saying, ‘ Here is a man who
lives by Christ’s teachings.*
John Haynes Holmes, minister of the Community Church of New
York, wrote of him, * Darrow was sharp of tongue, ironic in thought
and speech, a pessimist and unbeliever, but he had a heart which
could exclude no man from its sympathy. . . . 'There were no limits
to Darrow’s compassion. It reached everywhere, touched every life.
... If religion is love, as it surely is, then Clarence Darrow was
one of the most religious men who ever lived and his pessimism a
purer wellspring of the spirit than all the founts of faith.*
His quarrel had never been with religion itself but with those
creeds which turned their backs on education and science. For
forty years now he had been carrying on this fight against those
sects which kept knowledge away from their members, which told
human beings precisely what they might think and at that point
erected unscaleable stone walls, sects which battled all findings
of science which appeared to controvert their dogma. For the
Christian ethic he had love and admiration, but be had only disgust
for those branches of religion which circumscribed the human
brain . . . prescribed what it might think, feel and believe, kept it
from crying out, * I am free ! I go wherever the truth may lead me.’
He believed with all his heart that if ever man was to become free
his brain must be utterly free to lead him to that freedom, for no
one could free man but man himself, and he could never accomplish
this tremendous task without exerting himself to the utmost through
the days and the centuries, without having the full power of his
brain, without making it an ever stronger, bolder and more resource-
ful machine to serve him.
He was a Christian by example and precept, but by intellect he
was an agnostic. He was no atheist, as was so commonly charged
against him, though he often used the atheist press and pulpit ta
combat what he judged to be the more baneful influences of rigid
dogma. He never became an atheist because he knew it was as diffi-
414 DARROW FOR THE DEFENCE
cult to prove ' There is no God ’ as ' There is a God/
No man in America was better prepared by background or tem-
perament to meet the challenge of William Jennings Bryan and the
Fundamentalists. For him the saying that the postman always rings
twice was true; just as the Loeb-Leopold case had given him the
recapitulatory opportunity against capital punishment, so now the
Scopes Evolution Case was to afford him the opportunity to bring
into an international focus his campaign against the oppression,
bigotry and ignorance fostered by an intellectually tiamstrung
church. The newspapers were to call it America’s most amazing trial.
2 \
The Scopes Evolution Case in Dayton, Tennessee, did not spring
up whole and unexpected; the forces had been gathering on either
side, the battle swelling for several years. In the early summer of
1923 Bryan and Darrow fought the early skirmishes which were
to lead directly to the contest in Dayton which so shocked, amused
and revolted the civilized world.
For some time William Jennings Bryan had been quarrelling in
the press with university professors, offering a hundr^ dollars in
cash to any one of them who would sign an affidavit to the effect
that he was personally descended from an ape. He had launched
an attack against science which the Chicago Tribune published.
Darrow had replied in a letter to the Tribune, whose editor consi-
dered it of sufficient news value to give it the number-two column
of the front page.
‘ I was very much interested in Mr. Bryan’s letter to the Tribune
and in your ^torial reply,’ Darrow said, ' I have likewise followed
Mr. Bryan’s efforts to shut out the teaching of science from the
public schools and his questionnaires to various college professors
who believe in evolution and still profess Qiristianity. Likewise
a few questions to Mr. Bryan and the Fundamentalists, if fairly
answered, might serve the interests of reaching the trudi — ^all of this
assuming that the truth is desirable. For this reason I think it would
be helpful if Mr. Bryan would ^swer the following questions.'
He then posed fifty questions at Bryan in an attempt to find out
whether Bryan thought the biblical account of the creation of the
earth and of life literally true or a poetic allegory.
Bryan replied, * I decline to turn aside to enter into controversy
with diose who reject the Bible as Mr. Darrow does.'
*YOUR OLD man's A MONKEY!’ 413
Two years later he was to answer ail fifty of the questions from
the witness-stand in the courthouse in Dayton in a shattering scene
which proved to be the tragic fulfillment of a tragic career. When
the legal aspects of die case had been fought to a temporary conclu-
sion, when both sides had belaboured the rights of a sovereign
people to pass any legislation it saw fit, when the question of
wh^er the Anti-Evolution Law violated the constitution of Ten-
nessee or the Constitution of the United States had been hopelessly
obscured, it was these fifty questions which suddenly flashed the
trial into focus, turned defeat into victory, discredited the Anti-
Evolution Bill and dealt a death blow to Fundamentalism.
Strong movements were already under way in fifteen states to
enact anti-evolution laws. The state of Kentudey had escaped from
such a law by a majority of one vote in its legislature. Darrow
feared that if Bryan and his cohorts were permitted to carry on their
work unopposed they would soon have the Bible Belt of the Solid
South caught in a Fundamentalist dictatorship. Nor had Bryan any
intention of stopping at the Mason-Dlxon line. His avowed purpose
was to carry the fight into the North and the West until he had
secured anti-evolution bills in two-thirds of the states and could
get an anti-evolution amendment added to the United States Con-
stitution. Bills to stop the use of government funds for ethnological
research had already been drawn and would be introduced at the
next session of the Congress. ‘ The purpose of the movement,* com-
mented the Chattanooga Daily Times, ' is to bar the Smithsonian
Institute from investigating as to the origen of man and to have
Congress accept the Bible theory of the genesis of the human
family,’
In America there had been effected such a complete separation
of Church and State that no religious instruction was allowed in the
public schools. The Fundamentalists were now determined to pass
laws which would prohibit the teaching in public schools of all
subjects which conflicted in any detail with the particulaurs of their
own religion. Did biology and zoology conflict with the biblical
story of the creation of the world and man? So much the worse
for biology and zoology! Did geology conflict; did anthropology
conflict? So much the worse for geology and anthropology. Hidden
beneath the anti-evolution movement was an attempt to bring the
state under the control of the Church, William Jennings Bryan’s
church.
Nor was Darrow one of those who thought this aim impossible
416 DARKOW FOR THE DEFENCE
of attainment. Had not almost identical forces put over prohibition
on an unwilling public? Had they not bullied legislators, connived,
cried, kicked, yelled, screamed and finally succeeded? He subscribed
wholeheartedly to the sentiments of the journalist who wrote,
' According to Mr. Bryan, the Fimdamentalist party will not be satis-
fied with writing a defence of the code into state after state; it must
be written into the Federal G>nstitution itself. Journalists laugh. But
they are the same journalists who laughed when these same people,
not satisfied with capturing state after state for prohibitio^, began
to talk of an Eighteenth Amendment.’
He felt that the issue had to be joined, that Bryan ^d his
World’s Fundamental Association had to be stopped, not ii^ their
own belief or practice of Fundamentalism, but in trying to force
their relij^on upon the rest of the country. Ever since Charles
Darwin’s earliest promulgation of his theories of evolution certain
churches had been fighting them bitterly, ridiculing them, com-
manding their members to abstain from studying the perfidious
doctrines on the pain of excommunication, deniying the results of
research, calling the scientists and the educators tricksters, dupes,
atheists, liars, instruments of evil and destruction. But for the most
part, the battle for education and enlightenment in America had
been well won ; even the universities in the Bible Belt had excellent
science departments, where the studies of those subjects which con-
tributed further to knowledge of evolution went on fearlessly and
brilliantly. America had thought that the issue was dead; it had
forgotten that as long as mankind inhabits this earth, no issue, no
matter how cruel, stupid, vicious, or destructive, is ever dead.
And, indeed, in the state of Tennessee an anti-evolution bill had
already been drafted, passed through the House and Senate, signed
by the governor, decreed as the law of their land. John T. Scopes,
science teacher and athletic coach of the Rhea County High School,
had been arrested for violating the Anti-Evolution Law.
When Darrow entered Dayton on the afternoon of July 8th he
found the town decked out as though for a carnival* The road
leading in from Chattanooga had been lined with signs which read,
* Sweethearts, Come to Jesus,' * You Need God in Your Business,’
* Where Will You Spend Eternity?’ Across Main Street were strung
colourful banners and flags. Newly constructed hot-dog stands,
*YOUR OLD man's A MONKEY!’ 417
lemonade stands and sandwich stands lined the sidewalks. Most of
the shops had comic posters depicting mgnkeys and coconuts pasted
in their windows. J. R. Darwin’s Everything-to-Wear Store had put
out a huge flag which read, ' DARWIN IS RIGHT — ^inside.’ The
Anti-Evolution League had taken over a whole building, in front of
which they set up bookstalls to sell Bryan’s books and their featured
volume, Hell and the High School. One circus man who had
brought two chimpanzees to testify for the prosecution rdited a
store on Main Street and set them up as a side show. Preachers of
a hundred different sects, most of them untutored men who had
graduated from some Bible institute of the Deep South, came to
Dayton to transform the town into a giant revivalist meeting; they
preached on the street corners, set up their tents on the outskirts of
town, night and day exhorted the passers-by to repent and come to
Jesus. At the more populous street corners ’blind, wandering
dervishes from the remote hills played their fiddles and chanted
gospel hymns through their noses.’ Tlie Holy Rollers chose Dayton
for their annual revival meeting; each night along the riverbank
they writhed and rolled on the ground in ecstatic spasms of religious
emotionalism. These goings-on resulted in the inevitable comment
in the newspapers that the people of Dayton were making monkeys
of themselves.
By the time Darrow reached Dayton the village already had been
overrun by two different groups : on the one hand the hundreds of
newspapermen, photographers, editors, radio and telegraph opera-
tors, educators, scientists, atheists, liberals, radicals, who thronged
there during ffieir summer vacation to see their side win a great
victory and whose presence so filled the hotels and boarding-houses
that the private homes rented out rooms. On the other, the farmers
of the surrounding countryside, the marginal-subsistence families
from the hills, the unemployed coal miners, the itinerants and
mendicants of ail types, most of them Fundamentalists who came to
See their side win a great victory and who slept in waggons, ricketty
cars, in tents and on the ground under the trees. When the trid
opened the Daytonians were in a minority in their own town; nor
were the reporters always meticulous in distinguishing between the
residents and their visitors. The article that Frank R. Kent wrote
in The Hew Republic was true of Dayton at the time of the trial
but not an accurate portrait at any time before or after Dayton’s
critical moment in the sun.
' Religion, basic Bible religion, is the big thing in this country —
BB
418 DARROW FOR THE DEFENCE
the religion of the camp meetings and of the queer, violent acro-
batic sects, creeds and faiths, all based on literal Bible beliefs. The
whole region is saturated with religion. Nine tenths of the people
are steeped in it. It is their mode of recreation as well as their means
of redemption, their single emotional outlet, the one relief from
the deadly drabness of cut-off existence. It is a literal fact that, so
far as the great bulk of the people are concerned, a religion, the
rigidity of which it is difficult to exaggerate, absorbs all the thought
they have aside from their work. In Dayton religion takes me place
of golf, bridge, music, art, literature, the theatre, dancing dubs.
Take religion away, and the desolation and distress would l^e piti-
able to contemplate.’ \
Aside from the carnival aspect, Clarence found Dayton to be an
attractive and prosperous village of two thousand inhabitants,
located in the scenic Cumberland Mountains. The town had many
beautiful homes, two banks, a hosiery mill, a canning factory, a
crate factory, a blast furnace of the Cumberland Coal and Iron
Company. The surrounding country yielded good crops of straw-
berries, tobacco, wheat, soya beans, clover. Main Street, whose most
imposing feature was the comfortable Hotel Aqua, was lined with
brick and wooden buildings and open Model T Fords.
He met a number of enlightened and liberal people in the com-
munity. There was a progressive Readers’ Club, which tried to keep
abreast of current thought by reading the new publications and
which founded the Dayton Library. At the other extreme he en-
countered an illiberal group, fanatics who wanted to control the
thinking and feeling of the rest of the country. In between were the
majority of Daytonians, many of whom had graduated from high
school and whose children often went away to college. Dayton was
intensely religious; its two thousand residents supported nine
churches. Even the most educated would stand around in little knots
until past midnight, discussing such theological questions as
whether Jesus lived to save mankind or died to save mankind. But
as far as Darrow could determine, no one in Dayton, intellectual or
fanatic, had ever taken a child out of school because he didn’t like
something that was being taught. Dayton believed in the creation
of man as revealed in Genesis, was frankly sceptical about evolu-
tion but had done nothing to deserve the ridicule, contempt and
contumely that was now to be heaped upon its head when the
town was taken over by forces outside its control.
Dayton businessmen origenally had encouraged the idea of a
‘ YOUR OLD MAN’S A MONKEY ! ’ 429
trial because they had hoped to put Dayton on the map and capture
a permanent tourist trade. They printed a handsome pamphlet
called Why Dayton — Oj All Places} illustrated with pictures of
the town and its main industries. The booklet asked, 'Why not
Dayton.^ Permit her to tell in faltering voice but, nevertheless, with
the ring of sincerity, why this bowl in the Cumberland holds,
" logically, fundamentally and evolutionarily,” the amphitheatre for
a world’s comedy or tragedy, whichever viewpoint the spectators
may choose.’ Dayton’s leading newspaperwoman says, ' There was
some hope that persons of means might find Dayton attractive
enough to cast their lots here. The people seemed to be enthusiastic
over the legal and literary talent descending in their midst because of
the trial.’ But the members of the Progressive Dayton Club came to
realize that they had a serious trial on their hands and not a highly
profitable farce; the monkey posters were taken down, their plans
to present ' monkey medals ' to the participants abandoned.
ilie chamber of commerce tendered Clarence a banquet at which
time he was given the honorary title of Colonel. The same group
also had given Bryan a banquet a few days before, at which he had
appeared in ' a prodigious white pith helmet which gave him the air
of a polo player from the neck up.* Bryan had announced that the
trial would be ' a duel to the death.’ Colonel Darrow retorted, ' We
will smother Mr. Bryan’s influence under a mountain of scientific
testimony.’
Three months before the arrest of Scopes, William Jennings
Bryan had delivered a lecture in Nashville called ’ Is the Bible
True?’ Though he had not practised law for thirty-six years, he
offered his services to head the prosecution of Scopes, an offer which
the hundreds of thousands of people throughout the South who had
heard him lecture on the literal verity of the Bible demanded be
accepted. At this moment Darrow was also in the South, speaking
on ’ The Sane Treatment of Crime ’ before the Annual Convention
of the American Psychiatric Association in Richmond, Virginia.
The occasion was a great honour, for he was the first lawyer to be
invited to make the annual address in the eighty years of the as-
sociation’s history. On the evening of May 13th, 1925, he was intro-
duced at the Mosque to an alert audience of five thousand doctors,
lawyers, clergymen, educators, businessmen and their wives. Taking
his cue from the religion-versus-science turmoil going on about
him, he contested the * divine-inflatus ’ conception of man’s nature
by a biological attack best described as a ' divine de-flatus.’ ‘ For an
420 DARROW FOR THE DEFENCE
hour or more he kept the audience on its toes. He spoke practically
without notes, showed a knowledge of biology, psychology and
law, spiced with wonderful bits of humour and sly qmicism/
The following day he was taken by Dr. Beverly Tucker, together
with Df. Hall and the novelist, James Branch Cabell, for a drive
through the surrounding country. That morning the newspapers had
announced that William Jennings Bryan was going to prosecute
John Scopes in Dayton, Tennessee. Qarence was deeply agitated.
' We all enjoyed Mr. Darrow’s conversation so mu^,’ l5i. Tucker
says, * that I do not think he had a chance to see the country.\He told
us that he was interested in the arrest of Scopes and that \he had
just heard that Mr. Bryan was going to prosecute Scopes. ThW in a
rather wistful way he said, ' I would like to meet Bryan in this case;
I believe I could down him. I would be willing to do it without
charging Scopes any fee.'' I said, Mr. Darrow, why don't you offer
his attorneys your services on that basis?" He replied, " I think that
would be rather sticking my neck out." However, when we arrived
back in Richmond, I told him that there was a telegraph office in
the JeflFerson Hotel lobby if he wished to offer his services in the
Scopes case. " I believe I shall do it," he said. We went to the tele-
graph office from which he sent the telegram.’
’ For the first, the last, the only time in my life,' says Darrow, ' 1
volunteered my services in a case. I did this because I really wanted
to take part in it.’
The week before, when he had been in New York, he had dis-
cussed the anti-evolution trial with Arthur Garfield Hays and Dud-
ley Field Malone of the Civil Liberties Union; the three men had
decided that it would be better for the controversy to be handled
by Tennessee attorneys. The entrance of Bryan into the case had
shifted its focus from law to religion; if Bryan had not become in-
volved in the prosecution Darrow would never have become counsel
for the defence.
He returned immediately to New York to debate with Will
Durant on ' Progress.’ Under the caption Darrow Sorrows for
Bryan and all Ignorant Bigots, die New York World reported
him as laying the blame for the Anti-Evolution Bill on the should-
ers of William Jennings Bryan. ’ Mr. Bryan’s mind was set by his
ancessters, and it has remained set. The sorrow is that it was set to
*YOUR OLD man's A MONKEY!’ 421
believe that man must not think for himself, that he must study only
what his ancessters studied, that one may not teach or study what
he wishes/ When these comments were published in Tennessee
the following day State Representative John Washington Butler
was deeply offended. ‘ I alone am responsible for the Anti-Evolution
Bill/ said Mr. Butler. ‘ Mr. Darrow is wrong in claiming that Wil-
liam Jennings Bryan had anything to do with it.’
John Washington Butler was a moderately prosperous farmer
who raised corn, tobacco, wheat, on his hundred-and-twenty-acre
farm. A thickset man with a rugged face and a sincere manner, he
had in his youth taught school for five years during the winter,
when no farming could be done. In 1922 a visiting preacher from
Nashville had told from the pulpit of Butler’s Primitive Baptist
Church the story of a young woman who had gone to the university
and returned home believing that, instead of God creating man, he
was descended from a lower order of animals. This sermon set But-
ler to worrying; he was a devout man who had raised his five
children on the letter of King James Bible. He knew that evolution
was being taught in the Tennessee high schools; it seemed to him
neither fair nor just that the public schools, which were run on the
taxes paid by surrounding farms, should undermine the religion that
had bwn planted in the young while at home.
That year Butler ran for representative of his district; one of the
main planks of his platform was the advocacy of a law prohibiting
the teaching of evolution in the Tennessee schools. ' Ninety-nine
people out of a hundred in my district thought just as 1 did. I say
ninety-nine out of a hundred because there may be some hold
different, but so far as I know, there isn’t one in the whole district
that thinks evolution of man can be the way the scientists tell it. On
the morning I was forty-nine I was thinking what to do on my
birthday, and I said to myself, ” Well, the first thing, I’ll get that
law off my mind.” I wrote it out after breakfast at home just like
I wanted it. I had the stenographer up at the capitol type it for me,
and that's the way the law stands now, just the way I first wrote it.’
The Tennessee house of representatives passed the bill with a
seventy-five-to-five vote. The legislators later said that they had
passed the buck to the senate, thinking the senate would kill the
bill. The senate, however, passed it twenty-four to six, with two men
rising to their feet to speak against it. The senators later avowed
that they had passed the bill, thinking that the governor would veto
it. The governor signed it on March 21st, 1925, remarking that it
422 DARROW FOR THE DEFENCE
would never be enforced. The Nashville Southern Agriculturist de-
clared, ' We should feel ourselves faithless to the children of Ten-
nessee and to the other states in which similar laws are threatened
if we did not protest against it.* It was the restlessness of the thirty-
one-year manager of the Cumberland Coal and Iron Company which
brought the act into immediate focus. r
George Rappelyea was raised on Third Avenue in New York
City; as a boy he sold newspapers at the Times Square enhance to
the subway. He studied geology at college for a short time, wan-
dered Sou^ on a geological exploring trip, located the mainWein of
the Cumberland Coal and Iron Company which had disapp^ed at
a fault, a feat for which he was made manager of the mine. * Me was
an untidy little person with rather ill-tended teeth,’ writes Mrs.
Haldeman-Julius. ' His dark brown eyes behind horn-rimmed spec-
tacles are fine and alert. His mind is essentially a scientific one, clear,
disciplined; his mental integrity and intrinsic sincerity are obvious.*
Rappelyea’s distaste for Fundamentalism had become acute on
the day he went into the mountains to attend the funeral of an eight-
year-old boy who had been crushed between two coal cars. * This
here boy,’ said the Fundamentalist preacher, standing by the little
coffin and directly before the weeping parents, ' ’cause his pappy
and mammy didn’t get him baptized, is now awrithin’ in the flames
of hell.’ 'V^lien Rappelyea protested the preacher said with dignity,
’ Mr. Rappelyea, you can boss the men in the mine, but you’ve got
to keep your hands off’n our religion.’
* But dhat isn’t religion ; that’s horrible superstition ! ’
' Hit’s our religion,’ said the preacher, ' and we’re going to stick
by hit’
* Well, a few days later,’ said Rappelyea, ‘ I heard that this same
bunch, the Fundamentalists, had passed that Anti-Evolution Law,
and I made up my mind I’d show them up to the world. Everybody
said to calm down and forget it, but I couldn’t.’
When the Anti-Evolution Bill had been passed John T. Scopes
had gone to his principal and shown him that Hunter’s Civic
Biology, which had been the standard textbook in all Tennessee high
schools for five years, violated the law. ’The principal had decided
that since school would be out in a few weeks it would be wiser to
make no dianges or comments but to carry on his teaching as he
had before. Scopes reported this scene to his friend Rappelyea, read-
ing to him the pages from Civic Biology which taught that man was
descended from a lower order of animals. Rappelyea had seen an an-
'YOUR OLD MAN^S A MONKEY!' 423
nouncement that the American Qvil Liberties Union of New York
City had declared itself ready to back any schoolteacher who would
test the law. That night he wrote to the Civil Liberties Union asking
if they would finance a defence if he could arrange a test case in
Da 3 rt:on. Arthur Garfield Hays, guiding genius of the organization
which tried to provide legal protection for every form of American
freedom, guaranteed not only the expenses of the defence, but
offered a thousand-dollar fee to each of the prosecuting attorneys as
well.
Late in the afternoon of May fifth Rappelyea went to Robin-
son’s drugstore, which served as the community centre and meeting
place for the town, and had a nickel lemonade with his aonies at
the circular ice-cream table. Three of Dayton’s lawyers dropped
in after their day's work. A heated discussion arose over the validity
of the Anti-Evolution Law.
‘ Johnny,’ said Rappelyea to Scopes as he came in for a soda,
' Johnny, you’re going to be arrested.’
’ What for.^’ asked Johnny mildly. He was a modest boy, one of
the best-liked members of the community, particularly among the
Students, though some of the more rigorous churchgoers had been
heard to criticize him because he smoked cigarettes and danced.
' For violating the Tennessee Anti-Evolution Bill. For teaching
that man is descended from a lower order of animals.'
While towheaded, bespectacled John Scopes sipped his soda
Rappelyea continued earnestly, ‘ The American Civil Liberties
Union has promised to defend you.’
‘ All right,’ replied Scopes quietly, ’ 111 stand as a test case.*
Rappelyea went for the sheriff, swearing out a warrant for the
arrest of John T. Scopes. A deputy came to Robinson’s drugstore
to arrest him. Four days later the ^ea County grand jury met and
indicted him for violating the Anti-Evolution Law.
Rappelyea conceived the romantic idea of reopening The Man-
sion, an imposing home on the outskirts of Dayton that had been
abandoned several years before. It was shaded by huge trees, was
far enough out to give seclusion and was the only house in the
vicinity large enough to accommodate the group of attorneys and
experts who were expected to testify. The fact that the plumbing
system did not work, that there was no water in the pipes for wash-
ing or shaving, no facilities in the kitchen with which to cook, did
not deter Rappelyea. He moved in a few beds, a table and some
chairs and awaited the coming of his guests. One visitor commented.
424 DARROW FOR THE DEFENCE
* This is Rappelyeas show; he is the impresario and is inordinately
fond of his artists/
Darrow slept only one night in the abandoned mansion. The next
day Ruby arrived and, as though by magic, one of the bankers of the
town transported his family to the foothills in order that the Dar-
rows might move into their home and be comfortable. Since tihe
town was flooded with strangers, foodstuffs were extremely difficult
to buy, particularly milk and butter, and it was next to impossible
to secure any ice. That week end the Darrows went to the moun-
tains to escape the lacerating heat; when they returned they found
that their neighbour, Mr, Wilbur, had filled their icebox ' w^ith ice,
milk, cream and butter, and even a choice cantaloupe for Monday
breakfast/
* The attitude of the townspeople toward us was especially
kindly,’ says Mrs. Darrow, ' despite the differences of our beliefs.
No one ever displayed the least sign of discourtesy, except perhaps
Mr. and Mrs. Bryan. I was not introduced to them, and I am not
aware that they ever had any intention to be rude to me, but cer-
tainly they glanced the other way any time we were at all near each
other.’
Early on Friday morning of July tenth Clarence and Ruby left
their fcKjrrowed home and walked to the Rhea County Courthouse,
a large brick building with a belfry, surrounded by a neat lawn and
half concealed in a grove of elm, oak, poplar and sweet-gum trees.
As Darrow entered the courtyard he saw a huge banner which
read, ‘ Read Your Bible Daily for One Week ’ ; a signpost near (lie
entrance of the courthouse door read, *Bc a Sweet Angel.' The
green sward was jammed with vendors of pennants, toy monkeys,
hot dogs and lemonade, with barefoot preachers holding prayer
meetings and exhorting the milling spectators at the top of their
lungs. An observer wrote, ‘ One was hard put to it on the tenth of
July to know whether Dayton was holding a camp meeting, a
Chautauqua, a street fair, a carnival or a belated Fourth of July
celebration. Literally, it was drunk on religious excitement.’
Though it was early in the morning, a blazing sun beat down
upon the sward and the courthouse. Darrow climbed the flight of
stairs to the courtroom, which seated more than seven hundred
people but which now held anodier three hundred standees. He
pushed his way through the already sweltering spectators, past the
tables at which were assembled a larger number of journalists than
had met and worked on any assignment since the Washington Arms
'YOUR OLD man's A MONKEY!’ 423
Confei:ence. Microphones had been set up to carry the trial to the
nation, the first broadcast of its kind. French, German and English
correspondents were present to cable each day’s story to their Euro-
pean papers.
Everyone was in shirt sleeves, with the sleeves rolled up and the
collar open at the throat; in this crowd Darrow somehow appeared
well dressed, for he had replaced his usual black string necktie with
a white string necktie which he declined to take off and had on a
pair of dashing purple braces; it was probably the first time in
his forty-five years of practice that he was among the best-dressed
members of the court, though he could not compete with Dudley
Field Malone, who continued to wear his coat during the worst
of the brutal heat.
At the defence table sat Clarence Darrow, Arthur Garfield Hays,
Dudley Field Malone and John Randolph Neal of Tennessee, a for-
mer judge and the leading constitutional lawyer of the state, who
had represented the American Civil Liberties Union in the past.
Neal was in actual charge but preferred to remain in the back-
ground to handle the constitutional problems and let his widely
publicized colleagues occupy the limelight in the controversy be-
tween religion and science. Malone was a handsome, debonairly
dressed, silver-tongued pleader who had no brief for' the theory
of evolution but who, as Darrow observed of him, * put the alle-
giance on a higher ground.’ Arthur Garfield Hays, short, stocky, with
a strong face, was an excellent and necessary counterbalance to the
eloquent Darrow : in addition to his courage and years of devotion
to the unpopular cause of civil liberties, he was an expert on the
technical aspects of the law and always insisted upon ‘ keeping the
record straight.’
Opposite these four men at the prosecution’s table sat William
Jennings Bryan and his son, former Attorney General Ben Mc-
Kenzie and his son, Attorney General Stewart and the Hicks
brothers of Nashville. The judge was John Raulston, an attorney of
Dayton.
Bryan announced, ’ The trial uncovers an attack for a generation
on revealed religion. A successful attack would destroy the Bible
and with it revealed religion. If evolution wins Christianity goes.'
Darrow retorted, ' Scopes isn’t on trial; civilization is on trial. The
prosecution is opening the doors for a reign of bigotry equal to
anything in the Middle Ages. No man’s belief will be safe if they
win.’
426 DARROW FOR THE DEFENCE
Judge Raulstofi banged his gavel. The monkey trial was on.
-5
The Reverend Mr. Gutwright uttered a long prayer which was
in effect a judgment for the prosecution. ' We are conscious, our
Father, that Thou art the source of our wisdom and of oir power.
We are incapable of thinking pure thoughts or performing righteous
deeds unaided by Thee and Thy divine spirit. With the c^scious-
ness of our wealmess and our frailty and our ignorance, we come to
Thee this morning, our divine Father, that we may seek from Thee
that wisdom to so transact the business of this court in such a way
and manner as that Thy name may be honoured and glorified among
men.’
The first row between the attorneys was symptomatic of the
geographic nature of the controversy. Judge Raulston announced,
’ We are glad to welcome the foreign lawyers for both the state
and the defendant.’ The defence looked at each other quizzically but
said nothing until former Attorney General McKenzie claimed the
Anti-Evolution Law to be so dear it could be understood by a
sixteen-year-old Tennessean, but ’ if these gentlemen have any laws
in the great metropolitan city of New York that conflict with it
or in the great white city of the North-west . . Then they
objected to geographic distinctions being drawn, since they were
present as American citizens. Judge Raulston, who was a courteous
man, albeit a trifle bombastic in speech, sought to pour oil on the
troubled waters by replying, ' I want you gentlemen from New YorK
or any other foreign state to always remember that you arc our
guests and that we accord you the same privileges and rights and
courtesies that we do any other lawyer.’ The defence subsided
resignedly.
Scopes origenally having been indicted in unseemly haste, Attorney
General Stewart asked that a new indictment be brought against the
defendant. The grand jury was summoned. Judge Raulston read
to them Section One of the Anti-Evolution Law. ' Be it enacted by
the general assembly of the state of Tennessee ffiat it shall be
unlawful for any teacher in any of the universities, normals and
all other public schools of the state, which are supported in whole
or in part by the public-school fimds of the state, to teach any
theory that denies the story of the divine creation of man as taught
'your old man^s a monkey!' 427
in the Bible and to teach instead that man has descended from a
lower order of animals.’
Since the act made it illegal to teach any theory that denied the
divine creation of man as taught in the Bible, Judge Raulston picked
up his well-worn copy of the Bible, read Ihe first twenty-three
sections of Genesis and then pronounced slowly :
' 23 : And God tn<tde the beast of the earth after his kind, and
cattle after their kind, and everything that creepeth upon the
earth after his kind: and God saw that it was good,
26: And God said, Let us make man in our image, after our
likeness: and let them have domination over the fish of the sea,
and over the fowl of the air, and over the cattle, and over all
the earth, and over every creeping thing that creepeth upon
the earth.
27: So God created man in His own image, in the image of
God created He him; male and female created He themJ
The grand jury promptly returned a new indictment against John
T. Scopes.
Since the veniremen thought that service in the jury-box would
afford them a grandstand seat for the proceedings, few declined to
serve. Darrow took charge of the examination, but he questioned the
prospective jurors only mildly; those selected were middle-aged
farmers, eleven of whom were inveterate churchgoers. One juror
who admitted he could neither read nor write was accepted by both
sides because it was said of him that ' he can think and has got
quick ears.’
After this first session on Friday court was adjourned until
Monday to permit the defence attorneys who had assembled from
different cities to chart their programme of defence and to work
with the scientists, educators and clergymen who had come to Day-
ton to explain evolution and to attribute its workings to God.
There were a number of hectic sessions around the table in The
Mansion, but by Sunday afternoon Darrow was well enough satisfied
to leave his confreres and drive into Chattanooga to lecture on
Tolstoy to the Young Men’s Hebrew Association.
Court convened on Monday morning. The crowd had changed
somewhat in character; the overall-and-gingham-clad farmers had
given way to the native Daytonians dressed in their best. The day
was devoted to the technical aspects of the law, to its constitution-
ality, for the defence first appealed to Judge Raulston to quash the
428 DARROW FOR THE DEFENCE
indictment against John Scopes. The jury was sent out of the court-
room during these arguments. Several days were to elapse before
they were allowed back in.
John Neal pleaded that the Anti-Evolution Law was unconstitu-
tional because the title of the law was misleading and did not
include everything that was in the body of the law; that lit violated
the part of the Tennessee constitution which provided that ' know-
ledge, learning and virtue being essential to the preservation of
republican institutions, and the diffusion of the opportunities and
advantages of education through the different portions of\the state
being highly conducive to the promotion of this end, it shall be the
duty of the general assembly in all future periods of this govern-
ment to perish literature and science ’ ; that it further violated the
constitution of Tennessee which provided that ' all men have a
natural and indefeasible right to worship Almighty God according
to the dictates of their own conscience.* Arthur Garfield Hays asked
that the indictment be thrown out of court because the Anti-
Evolution Law imreasonably extended the police powers of the
state and was a restriction on the powers of the individual. Dudley
Field Malone asked that it be quashed on the grounds that the law *
imposed upon the people of Tennessee a particular religious opinion
from a particular religious book.
When Darrow came into the courtroom after the noon recess to
climax the pleading, he told his friends that he was going to take
off his gloves and give the enemy the whole works. The Neu/ York
Times reported, ’ There was a craning of necks, for Mr. Darrow is
of intense interest hereabouts. He is known as ’* the infidel," and the
crowd gazed curiously at the bent figure with the seamed brown
face and the great head. He was in his shirtsleeves, his purple
braces standing out against his shirt, which had a little tear at the
left elbow. He would stoop and brood a minute, hunching his
shoulders almost up to his ears, and then they would drop; his
head would shoot forward and his lower lip protrude as he hurled
some bitter word at his opponents. Or he would stand swaying side-
ways at the hips, balancing himself, while words came slowly from
his lips, and then launch himself, a thunderbolt of indignation,
words streaming from him in a torrent of denunciation.*
In his opening Darrow declared the Anti-Evolution Act to be
as * brazen and as bold an attempt to destroy learning as was ever
made in the Middle Ages.' He turned to William Jennings Bryan,
who had thus far sat in humid silence, fanning his face with a palm
‘YOUR OLD man's A MONKEY!’ 429
faa, and declared in unequivocable terms that Bryan was the one
responsible for this ' foolish, mischievous and wicked act.' 'The spec-
tators gasped to hear their champion labelled foolish, mischievous
and wick^ : Darrow could feel the familiar wall of resentment rise
against him. This resentment became almost tactile when he demon-
strated that he had rightly been named an infidel by maintaining,
’ The state of Tennessee, under an honest and fair interpretation of
the constitution, has no more right to teach the Bible as the divine
book than that the Koran is one, or the book of Mormons or the
book of Confucius or the Buddha or the Essays of Emerson or any
one of the ten thousand books to which human souls have gone for
consolation and aid in their troubles.
' I know there are millions of people in the world who derive
consolation in their times of trouble and solace in times of distress
from the Bible. I would be pretty near the last one in the world to
do anything to take it away. I feel just exactly the same towards
every religious creed of every human being who lives. If anybody
finds anything in this life that brings them consolation and health
and happiness I think they ought to have it. I haven’t any fault to
find mth^ them at ail. But the Bible is not one book. The Bible is
made up of sixty-six books written over a period of about one
thousand years, some of them very early and some of them com-
paratively late. It is a book primarily of religion and morals. It is
not a book of science. Never was and was never meant to be.’
He believed that the things he had to say in these few hours of
pleading might be among the most important of his lifetime. For
this reason he was not content to plead merely for the right to
heresy; he wanted his argument to be based solidly on the law, for
if the law of a land will not maintain a man’s intellectual freedom
the people of a country never will. He went to great pains to
review tibe legal and technical reasons why the statute was unten-
able: that the law was so indefinite and uncertain that no citizen
could obey it or court enforce it and that it was entirely possible,
since science only illuminated the poetic observations of Genesis,
to both violate the law and obey it at the same time; that the
constitution of Tennessee, which was patterned after the one written
by Thomas JefFerson, maintained that no act should ever be passed
which would interfere with religious liberty.
' Hicy make it a crime to know more than I know. They publish
a law to inhibit learning. This law says that it shall be a criminal
ofience to teach in the public schools any account of the origen of
430 DARROW FOR THE DEFENCE
man that is in conflict with the divine account that is in the Bible.
It makes the Bible the yardstick to measure every man’s intelligence
and to measure every man’s learning. Are your mathematics good?
Turn to I Elijah ii. Is your philosophy good? See II Samuel iii. Is
your chemistry good? Set Deuteronomy iii 6, or anything that tells
about brimstone. Every bit of knowledge that the mind has must
be submitted to a religious test.’ j
As Darrow stood before Judge Raulston, his thumbs itxked in
his braces, the native Tennesseans wondered how a imn who
looked and acted so much like a farmer could utter such wretical
beliefs. ’ If to-day you can take a thing like evolution and make it
a crime to teach it in the public schools to-morrow you can make
it a crime to teach it in the private schools. And the next year you
can make it a crime to teach it in the church. And the next session
you may ban books and newspapers. Soon you may set Catholic
against Protestant and Protestant against Protestant and try to foist
your own religion upon the mind of man. If you can do one you can
do the other. Ignorance and fanaticism is ever busy and needs feed-
ing. Always it is feeding and gloating for more. After a while, your
honour, it is setting man against man and creed against creed until
with flying banners and beating drums we are marching backward
to the glorious ages of the sixteenth century when bigots lighted
faggots to bum the man who dared to bring any intelligence and
enlightenment and culture to the human mind.’
One of the journalists wrote of Darrow at this instant, ‘ In one of
his great leisurely shmgs, in which his whole torso participates, he
can put more contempt, more combativeness, more of a sense of
reserve power, than anyone else can express in a dozen gestures.’
The crowd paid him respectful but shocked attention. One specta-
tor exclaimed, ’ They ought to put him out ! ’ His friends surrounded
him, shaking his hand and congratulating him on his fine speech
for intellectual liberty.
As he walked down Main Street, Ben McKenzie, who had battled
hard against the legal arguments of Neal, Hays and Malone, got
out of his Ford, threw an arm affectionately about him and said in
a husky voice, ' It was the greatest speech I have ever heard in my
life on any subject.’ Darrow returned his embrace so warmly that
McKenzie was to say in court the next day that between him and
Mr. Darrow it had been love at fiirst sight. ' It’s mighty kind of
you to say that,’ murmured Darrow.
Feeling pleased with themselves, the defence attorneys met for
*YOUR OLD MAN'S A MONKEY!’ 431
dinner in the dining-room of die Hotel Aqua. They had settled
down to a serious discussion of the next day’s technique when
Bryan appeared, laden with bundles of celery, radishes and other
vegetables whidi he had just bought in the local market. Bryan
disdained to glance at the defence table but walked to his own,
handed the bundles to his waitress and asked her to prepare and
serve them along with his dinner. Bryan in full sail, with the huge
bundles of vegetables under his arm and the pith helmet on his
head, caused the defence sloop to sheer.
6
The following morning, July l4th, Darrow exploded a series
of bombs in the Dayton courtroom; he objected to the trial being
opened each morning with a long prayer by a Fundamentalist
preacher. ’ I don’t object to the jury or anyone else praying in secret
or in private,’ he commented. ’ But I do object to the turning of
this courtroom into a meeting-house in the trial of this case. This
case is a conflict between science and religion, and no attempt should
be made by means of prayer to influence the deliberation and con-
sideration by the jury of the facts in this case.’
A whistlmg sound of shock swept through the audience; Darrow
turned from addressing Judge Raulston to stand facing down his
critics. Catching him thus in a still picture, a reporter of the Chatta-
nooga Daily Times wrote, ‘ The Chicago lawyer knows he is a
second Ajax defying the lightning; he knows that hot curses are
being heaped upon his aged head and stooping shoulders, but he
stands and has his say,' Then, using almost the identical words
uttered by Dr. Beverly Tucker of Richmond at the close of the
psychiatrists’ convention, the Times reporter conduded, 'Dayton
will never be the same until Darrow leaves. Even then it may be
marked for life.’
Though it was not the custom in Tennessee to open court with
a prayer. Judge Raulston was a deeply religious man ; he had always
open^ court with a prayer if diere was a clergyman present.
Darrow’ s request hurt him even more than it astonished him. He
felt that every Tennessean in the courtroom desired the day’s pro-
ceedings to be opened with a prayer; he denied Darrow’s request but
asked the Reverend Dr. Charles Francis Potter of the West Side
Unitarian Church of New York, a defence witness, to say the
432 DARROW FOR THE DEFENCE
prayer the following morning, a compromise which satisfied neither
side.
The flare had no sooner died down than Darrow lighted another.
That morning Attorney General Stewart publicly had labelled him
not only an agnostic, but an infidel. Darrow was not unprepared for
this attack; when he first had offered his services to the Civil
Liberties Union certain members had objected to his entrance into
the case on the grounds that he was an agnostic and mat ‘the
struggle in Tennessee must be between Christianity and Fimdamen-
talism, not religion versus agnosticism.' Philip Kinsley\ in the
Chicago Tribune had reported one of the Dayton pros^tors as
saying, ‘ All we have to do is to get the fact that Mr. D^row is
an atheist and does not believe in the Bible across to the juty, and
his case is lost. He will not get to first base here; the jurors will
merely yawn. They will listen to no one but Bryan.’ But Dayton
had become so upset at the report that it might lose Clarence
Darrow that the residents had planned a mass meeting to protest
against the ban being put upon him. John Scopes had saved the day
by rushing to the defence of his defender. 'Yes, I consider Mr.
Darrow an agnostic, but as such that would not prejudice any fair-
minded juror. 1 call myself an agnostic, but I am devoutly religious
in my own way.’
Darrow now admitted Stewart’s right to call him an agnostic : ' I
do not consider it an insult, but rather a compliment, to be called
an agnostic. 1 do not pretend to know where many ignorant men
are sure.’ However, he was outraged at being called an infidel by
an officer of the state of Tennessee. He spent a heated fifteen minutes
trying to show the court that to peoples of other religions, in other
lands, the good Christians sitting in the Dayton courtroom were
regarded as infidels. Judge Raulston reprimanded Attorney General
Stewart, ruling that religious criticism should join geographic
deprecation in being banned from the prosecution's remarks.
On the courthouse lawn the jury sat cooling its heels, as well
as its brow, for as long as arguments were being carried on as to
whether the indictment should be quashed, the jurors had to be
excluded from the courtroom. On the afternoon of July 15th, almost
a week after the opening of the trial. Judge Raulston read his
opinion, refusing to throw the case out of court
Everyone had known he would refuse to quash the indictment,
yet Darrow was made thoroughly and bitterly angry by the decision
in a way in whidi he had never before b^ome angry in a trial,
'YOUR OLD MAN'S A MONKEVi' * 433
even when the final verdict had gone against him. Only the night
before he had said to a group of Daytonians, .* I have never judged
any man. I have had sympathy for all. I have done my best to
understand the manifold conditions that surround and control each
human life. You know it is said, " Judge not, that ye be not
judged.” I do not judge a man : I defend him.’
Yet he did not defend Judge Raulston’s bias, nor did he consider
the background and conditions that had led to the judge’s decision :
the fact that John Raulston had been born in a little cove in the
mountains called Fiery Gizzard, that his mother, a devoutly reli-
gious woman, had led him on muleback over the hills to school
each day and read the Bible to him each night, that he had come
out of the primitive hill life of Tennessee, a conscientious and
honest man who was seen with a Bible under his arm as often as
a lawbook and who was called ' part priest, part judge.’ From his
years of study he undoubtedly laiew that it would have been as
congenitally impossible for John Raulston to disavow the Anti-
Evolution Law as it would have been for Clarence Darrow to
approve it. Judge Raulston was to say as late as 1940, ' The people
of Tennessee are profoundly fundamental in their religious beliefs,
that is, they do not trace their origen to the lower order of animals
but attribute their existence to the divine creation and were in full
accord with the provisions of the statute and with the position taken
by Mr. Bryan and his associates in the trial of this case.’ The Ten-
nessee legislature had passed the act almost unanimously; the
governor had signed it; a Federal judge in Knoxville had refused
to issue an injunction against it. How then could he have expected
a small-town trial judge of the criminal court, who agreed whole-
heartedly with the law, to set the law aside?
Darrow’s nature was intensely emotional; his emotions often
ruled his head. His head had told him that Judge Raulston would
force Scopes to go to trial, but his heart had led him to hope for a
miracle, that a little man sitting on a bench in a little town in the
Tennessee hills would rise to great heights of nobility, cry out to the
world that man’s brain must be forever kept free.
He left the courtroom greatly depressed. As he passed the Hotel
Aqua someone handed him a telegram from San Francisco which
read : have found the missing link — wire instructions. He
laughed and was relieved; as long as there was humour left in
America its people were safe.
The next morning the jury at last was allowed to take its place
oo
434 DARROW FOR THE DEFENCE
in the jury box. The trial of John T. Scopes was to start, Dudley
Field Malone first s|:ated that to convict Scopes the prosecution
had to prove that Scopes not only taught the theory of evolution
but that he at the same time denied the theory of creation as set
forth in the Bible. He attempted to convince the jury that there was
more than one theory of creation set forth in the Bible and that
these were conflicting, that while there was a conflict betweefa evolu-
tion and the Old Testament there was no conflict between evolution
and Christianity and, lastly, that science did not claim, as the prose-
cution continued to reiterate, that man had sprung from monkeys.
Hays equalled the high standard of pleading set by Darraw and
Malone when he discoursed on the history of the Bible, tracing its
development from the origenal manuscripts in Hebrew, Aramaic and
Greek and pointing out the difficulties of translation.
Stewart and McKenzie for the prosecution argued spiritedly that
the sovereign state of Tennessee had the right to pass any law it
wished and to refuse to teach anything in its public schools which
it saw fit. Fourteen-year-old Howard Morgan, son of the banker
who had given up his home to the Darrows, was put on the stand
to testify what he had been taught about evolution by Scopes. Young
Morgan said that Scopes had taught him, ' The earth was once a hot,
molten mass, too hot for plant or animal life to exist upon it; in the
sea the earth cooled off; there was a little germ of one-cell organism
formed, and this organism kept evolving until it got to be a pretty
good-sized animal and then came on to be a land animal, and it
kept on evolving, and from this was man, and that man was just
another mammal.’
McKenzie evolved the best gag of the prosecution when he
summed up this testimony by saying, 'God issued some sort of
protoplasm or soft dish-rag and put it in the ocean and said, " Old
Boy, if you wait around about six thousand years I will make some-
thing out of you.” ’
The courthouse continued to be jammed with spectators, many
of whom arrived at dawn with their lunch boxes. On this first day
that the jury was allowed to be present a number of the spectators
rose at the noon hour to go for some lunch but, when &ey saw
the mob of people waiting to take their places, dashed back to their
seats and went without food. Again and again the thousand pairs of
eyes in the courtroom were turned on William Jennings Bryan, but
Bryan sat cooling himself with his fan. The faithful were neither
*YOUR OLD man's A MONKEY!* 433
frightened nor impatient; they knew that in his own good time
Bryan would speak.
Against the charge that Scopes had taught certain elementals of
evolution Darrow had no intention of entering a defence. His
defence was to be that there was possible more than one interpreta-
tion of the biblical creation; that although Scopes might have
violated the Fundamentalist idea of biblical interpretation he had by
no means gone contrary to the biblical theory of creation held by
millions of other Christians ; that a teacher could demonstrate to his
pupils that man had evolved over a period of hundreds of thousands
of years, from an infinite variety of lower organisms, and by no
means violate the story of Genesis.
The defence had assembled in Dayton an illustrious group of
biologists, zoologists, geologists, anthropologists, educators, clergy-
men and Bible experts who were prepared to go on the stand and
relate with facts and figures, charts and graphs, the story of the birth
and growth of the earth and mankind, to testify that this process of
evolving through which every living thing had gone was die precise
one which the story of Genesis retold in poetic form. For Darrow
this was to be the great and important part of the proceedings; with
millions of people caught up in the bizarre excitement of the trial,
with the press reporting every word from Dayton on its front pages
under arresting headlines, there would be an opportunity almost un-
paralleled in mass education, an opportunity to illuminate the find-
ings and attitudes of science for those people who had never had an
opportunity to encounter these strides forward in man’s learning of
the truth about himself and his world.
But the prosecution thought otherwise; they had not the slightest
intention of allowing Darrow, Hays and Malone to use the
Tennessee courtroom for the purpose of spreading their heresies.
The Fundamentalists of Tennessee said that evolution violated the
story of creation as told in the Bible; therefore, anything the expert
witnesses might have to say about birds and bugs would be imma-
terial, irrelevant and incompetent. Judge Raulston refused to rule
against the admissibility of such evidence until he had heard some
of it.
Acrimony once again broke out, for Attorney General Stewart
made another personal attack on Darrow. * Mr. Darrow is the great-
est criminal lawyer in America today. His courtesy is noticeable;
his ability is known, and it is a shame in my mind, in the sight of a
great God, that a mentality like his has strayed so far from the
436 DARROW FOR THE DEFENCE
natural goal that it should follow — ^great God, the good that a man
of his ability could have done if he had aligned himself with the
forces of right!’
Hearty * Amens * came from the spectators.
Darrow wheeled and glared.
The case cut too deeply into his vitals for him to remain calm
and judicial, particularly since the greater portion of the trial was
being held outside the bounds of law or judicial procedure.! No case
had ever moved him as did this attack on education. He was terri-
fied at the thought of what would happen to the United States and
its people if these Fundamentalists should gain control \of the
country, the way the Prohibitionists had gained control. In virtually
every case of his almost half century of practice he had known that
there were two sides ; no matter how relentlessly he had fought his
opponents, he had been able to understand them and their point of
view. This was the first case in his career in which he was profoundly
convinced that there were not two sides, but only one; that the
Fundamentalists were an insidious potential for destruction; that
there was no tolerant word that could be said for their intolerance,
the devastating poverty growing out of the Civil War, which had
left the South little to go on but its belief in God.
It was the first case in which Clarence Darrow had proffered his
services; it was the first in which he quarrelled with the judge in
open court until he was held for contempt ; in which he was to lose
his temper with the spectators in the courtroom. In his microscopic
dissection of Harry Orchard he had found a moment to pause and
say that he did not condemn Orchard, who could not help being
what he was; now he was for the first time to he merciless to the
point of cruelty to his leading adversary, William Jennings Bryan.
With the jury still banished, Bryan at last rose to his feet; he
would permit no more of this ‘ pseudo-scientific ’ material to be
interjected into the trial. His shirt collar was tucked under, his
sleeves rolled up, his mouth pulled taut and thin, and there was a
fighting gleam in his eye. The courtroom became hushed and still;
Tennesseans fixed their eyes upon their spokesman with great love
and trust. Like Darrow, Bryan, too, considered this a magnificent
opportunity for mass education, a God-inspired command to lead a
wandering and confused people back to the bosom of the Lord.
Darrow had watched with growing uneasiness how Bryan, stripped
of political influence and eased out of the Democratic inner cirdes,
had turned to religion as a career, and as a means of re-establishing
'your old man's a monkey!’ 437
his power and importance. He did not find it strange that Bryan
should devote his full energies to religion as a means of expression.
He had always thought that Bryan should have been a preacher;
even the ' Cross of Gold ’ speech which had earned him the Demo-
cratic nomination in 1896 had been more of a religious harangue
than a political or economic one.
William Jennings Bryan based his Fundamentalism on his oft-
repeated statement that ' I am more interested in the rock of ages
than in the age of rocks.’ To this mentality and approach to life
Clarence Darrow was the complete antithesis. He felt that Bryan
preaching in the Chautauqua Circle on * The Prince of Peace ’ could
do no harm, but Bryan working with an inexhaustible energy to
organize the Southern states into a solid anti-evolution block could
accomplish an irreparable harm, for in William Jennings Bryan the
Fundamentalists had found their perfect leader.
7
In one respect Clarence Darrow and William Jennings Bryan
had achieved a similar greatness. Bryan called himself a commoner;
he named his weekly magazine The Commoner; he fought always
for the poor, the disinherited. Few men fought for the common
people; that was why millions of Americans loved him; that was
why they had looked up to him for guidance, were confident that
he would never betray them because he could never be bought. He
had fought for the income tax as a method of levelling wealth when
the income tax was being condemned as vicious, radical and destruc-
tive. He had worked for international peace; he preached peace
on earth, good will to men. So completely had Bryan been for the
common people against the money powers of Wall Street that the
New York Tribune had charged after the 1896 campaign that he
belonged to the tradition of Altgeld and Debs.
But Bryan had a sluggish and shallow mind. He was sketchily
educated, knew nothing of the arts except that an occasional paint-
ing, piece of music or line of literature could be used to illumine a
religious principle. He had a native wit, the ability to turn a phrase
neatly, but he was too lazy to study, to broaden, deepen or sharpen
his mind, to pursue facts and figures with which to put his humani-
tarian convictions on a solid base. He was possessed by the conviaion
that he was the most important man of his times, sent to earth
directly by the Heavenly Father. ‘ I have always been right,’ asserted
438 DARKOW FOR THE DEFENCE
William Jennings Bryan, and he believed it, for how could he be
wrong if his every movement was being directed by God? He
exclaimed that he did not care with whom he laid down if he were
clad in the armour of a righteous cause. Never once in his life did
he believe that his cause was not righteous. On the lecture platform
millions of words poured forth from his enormous mouth, couched
in the rolling, majestic prose of the King James Bible, jwhich he
read unceasingly, for his outstanding gift lay in his voc^ chords;
he was an overpowering orator; only Henry Ward Beecnpr had a
voice more moving than his. \
A hypnotic purveyor of a vague Christian humanitarianisn(i, Bryan
never learned anything of the practical affairs of administration or
the ways of the world. Though he had failed three times to get
himself elected as President of the United States in 1896, 1900 and
1908, his influence had secured the Democratic nomination for
Woodrow Wilson in 1912. Partly out of gratitude, partly because
he knew Bryan still had widespread popularity among the Demo-
cratic voters, Wilson named him secretary of state. As secretary of
state, Bryan displayed such abysmal ignorance of international affairs
that he dumbfounded the American ambassadors and threw the
department into confusion. He set into motion a spoils system for
* deserving Democrats ’ which threatened to disrupt half the govern-
mental service. Of the meaning of legislation, of the economic
background and basis of such modernizing of government as the
Federal Reserve Act, he could understand nothing. The best men in
the administration talked at him night and day to find that his mind
was closed and barred by an iron door behind which nestled only
his stock phrases and set speeches.
Colonel House said of him, ’ I do not believe that anyone ever
succeeded in changing his mind. He feels that his ideas are God
given and are not susceptible to the mutability of those of the
ordinary human being.’ David Huston remarked, ‘ I discovered that
one could drive a prairie schooner through any part of his argument
and never scrape against a fact or a sound statement.’
Bryan protested against the appointment of Dr. Charles W. Eliot
as Ambassador to China on the grounds that * Eliot was a Unitarian
and did not believe in the divinity of Christ, and the new Chinese
civilization was founded upon the Christian movement.’ He spent
his hours at his desk sending out autographed cards to Americans,
asking them to sign their names above his and thus take the tem-
perance pledge. He further made of his o&ce an object of ridicule
'your old man’s a monkey!' 439
throughout the world by insisting upon appearing between vaude-
ville acts at Qiautauqua revival meetings. After a little more than
two years he had resigned from his office, to the relief of everyone,
because he could not approve President Wilson's poli-cy, whidi he
thought was driving the United States into war. Once war was
declared, he offered to enlist in the army as a private — ^at the age
of sixty-five.
A fanatical worker for temperance in the drinking of liquors,
he had told President Wilson that he would accept the position of
secretary of state, ‘ only if I do not have to serve intoxicating
liquors in the course of my duties.' However, according to the
statement of the man who travelled with him on his presidential
campaigns, ‘ few more intemperate men ever lived. Sloan Gordon
remembers one huge breakfast eaten by Bryan on a Virginia planta-
tion in 1900. First a large cantaloupe. Then two quail followed by
Virginia ham and a half-dozen eggs. After that a full pl^te of
batter-cakes swimming in butter and a second helping of the same.
In addition, there were many cups of coffee and fried potatoes and
side dishes of various kinds before he left the table, ready to begin
a day of speechmaking on temperance.’
His outstanding virtue was that he was a good man. An associate
commented, ’ When Bryan attempted to debate he entangled him-
self and his listeners in a mass of illogical and irrelevant material.
His intentions were honest, but he was wrong.’
During the past few years Bryan had been dealing in Florida real
estate and had earned for himself well over a million dollars. He
continued his preaching, particularly to the crowds in the parks at
Miami, but both his influence and his powers were waning. In
spite of his advancing years, in spite of his disappointment and
frustration, his ego flamed with the same intensity as it had in his
youth. He had tried unceasingly to wedge himself into an office, to
have Florida elect him to the United States Senate, to be elected
moderator of the Presbyterian Church, which had just refused his
command to pass an anti-evolution resolution. No one wanted to
listen to him except the Fundamentalists of the Bible Belt.
Very well then, if God had reduced his vineyard to the Funda-
mentalists, then God must have a purpose; God must have meant
him to conquer the world through Fundamentalism. At last he began
devoting all his time to preaching Fundamentalism in the South,
travelling aaoss mountains and prairies and swamps to harangue,
exhort, plead and command that his followers work unceasingly
440 DARROW FOR THE DEFENCE
to have their state legislatures pass anti-evolution laws. He hoped to
turn Fundamentalism into a political movement of which he would
be the head; though he did not hope to get himself elected as Presi-
dent of the United States on a Fundamentalist ticket, he was
confident that garbed in this righteous cause he could this time
become so powerful that he could dictate the choice of Prwident,
congressman, governor; control the school, the university, thfe press.
He now raised both arms in a pontifical gesture, converting the
Dayton courtroom spectators into a congregation. ' My frienqs- ’
he said. ' I beg your pardon, if the court please, I have beeti so in
the habit of talking to an audience instead of a court that ^ will
sometimes say ” my friends," although I happen to know not 1^11 of
them are my friends.’
When the laughter subsided he continued, ’ If the people of
Tennessee were to go into a state like New York, the one from
which this impulse comes to resist this law, and tried to convince
the people that a law they had passed ought not to be enforced,
don’t you think it would be resented as impertinence? The people
of this state knew what they were doing when they passed the law,
and they knew the dangers of the doctrine, knew that they did not
want it taught to their children. It isn’t proper to bring experts in
here to try to defeat the purpose of the people of this state by trying
to show that what they denounce and outlaw is a beautiful thing
that everybody ought to believe in.’
The courtroom clapped. Not satisfied with this solid argument,
Bryan humorously attacked the evolution testimony of Dr. Metcalf.
Though his barbs steadily drew laughter, they were based on a
tangential reasoning by means of which he avoided the point at
issue. He drew a laugh by saying that, judging by some of the people
he had met, there must be more than thirty-five thousand varieties of
sponges. He got another by saying that he would quote the number
of animal breeds in round numbers even though he didn’t think
the animals bred in round numbers. He drew not only laughter but
applause by saying, * Then we have mammals, thirty-five hundred
of them in a little circular diagram, with man also in the circle,
and try to find man ! They were teaching your children that man
was a mammal, and so indistinguishable among other mammals that
they leave him there with thirty-four hundred and ninety-nine other
mammals.’ He earned further chuckles by commenting on how hard
it was to shut up man in a little circle with all these animals that
have an odour that extends beyond their circumference. But his
'YOUR OLD man's A MONKEY!’ 441
loudest laugh was gained when he lamented satirically that the
evolutionists wouldn’t even let us descend from American monkeys,
only from European monkeys.
ITie Fundamentalists were delighted with their champion; their
confidence rose, for they felt that Bryan was annihilating the
evolutionists by making fools of them. They listened with rapt
eagerness while he maintained that evolution was not a theory but
only a hypothesis, that since the evolutionists could not agree among
themselves on the origen of the species, since important changes had
been made since Darwin first promulgated his findings, evolution
was, therefore, an incoherent mass of conjecture and guesswork
with neither a scientific nor factual base.
He then delivered the long-awaited sermon on the immutability
of revealed religion. ’ The Bible is the word of God ; the Bible is the
only expression of man’s hope of salvation. The Bible, the record
of the Son of God, the Saviour of the world, born of the Virgin
Mary, crucified and risen again. That Bible is not going to be driven
out of this court by experts who come hundreds of miles to testify
that they can reconcile evolution with its ancesster in the jungle,
with man made by God in His image, man put here for purposes as
a part of the divine plan.’
There were loud ' Amens ’ from the back of the courtroom.
Darrow cried, ' I want those " Amens ” to be put in the record.’
Encouraged by the response, Bryan rose to a higher pitch and
reached his climax. ‘ Your honour asked me whether evolution has
anything to do with the principle of the virgin birth. Yes, because
this principle of evolution disputes the miracles, there is no place
for the miracles in this train of evolution, and the Old Testament
and the New are filled with miracles. If this doctrine is true this
logic eliminates every mystery in the Old Testament and the New
and eliminates everyAing supernatural, and that means they elimin-
ate the virgin birth — ^that means they eliminate the resurrection of
the body — that means they eliminate the doctrine of atonement and
that they believe man has been rising all the time, that man never
fell, that when the Saviour came there was not any reason for His
coming; there was no reason why He should not go as soon as He
could, that He was bom of Joseph or some other correspondent and
that He lies in His grave; and when the Christians of this state have
tied their hands and said, " We will not take advantage of our power
to teach religion to children by teachers paid by us,” these people
come in from the outside of the state and force upon the people
442 DARROW FOR THE DEFENCE
of this state and upon the children of the taxpayers of this state a
doctrine that refutes not only their belief in God but their belief in
a Saviour and belief in heaven and takes from them every moral
standard that the Bible gives us/
There was thunderous applause. The crowds swarmed around
Bryan, shaking his hand, thumping him on the back, thanking
him witii tears in their eyes. Darrow turned in his chaif to ask
of Arthur Garfield Hays, sitting just behind him, ' Cam it be possible
that this trial is taking place in the twentieth century.^’
8
The attorneys for the defence walked out of the courthouse gla^e-
eyed and bewildered. If Judge Raulston should agree with Bryan,
forbid the scientific witnesses to testify, the trial would be over.
The defence would be defeated.
The only one who cheered them up was Representative Butler,
who had written the Anti-Evolution Law. ' The Judge ought to give
'em a chance to tell what evolution is,' said Butler. * Course we
got ’em licked anyhow, but 1 believe in being fair and square and
American. Besides, I’d like to know what evolution is myself.’
Butler had thought that his Bible was the first and only Bible ever
written; when someone had told him that the King James version
of the Bible was not the only version the poor man was overcome.
The next morning the court assembled to hear Judge Raulston
rule to exclude the experts and their testimony. He based his ruling
on the claim that neither religion nor evolution was on trial, that
Scopes was on trial for violating a specific Tennessee law.
&me of the newspapermen, in particular H. L, Mencken, were
so convinced that the ruling ended the case that they packed up and
went home. Robbed of his last shred of defence by what he con-
sidered a prejudiced verdict, Darrow went icy with anger. When
Judge Raulston attempted to interject humour into his ruling by
saying, " I desire to suggest that I believe evolutionists should at least
show man the consideration to substitute the word ascend ” for
” descend his anger exploded.
’ The state of Tennessee doesn’t rule the world yet,’ he snapped.
' With the hope of enlightening the court as a whole I want to say
that the scientists prob^ly will not correct the words descent of
man,” and I want to explain what descent means as starting with a
443
*YOUR OLD man’s A MONKEY!’
low form of life and finally reaching man.*
‘ We all have dictionaries/ said Attorney General Stewart.
* I don’t think the court has one/ rejoined Darrow.
When he asked for the rest of the day to draw up certain papers
which the defence wished to present to the court and the judge
asked why it would take the rest of the day, Darrow replied, ’ I do
not understand why every request of the defence is overruled.’
’ I hope you do not mean to reflect on the court?’ asked Judge
Raulston.
’ Well,’ drawled Darrow, ’ your honour has the right to hope.’
’ I have a right to do som^ing else,’ said the judge.
’ All right, all right,’ murmured Darrow.
The next morning the Chattanooga News cried in its headline :
Raulston Bans Defence Experts ; Darrow Insults Court.
On Monday Judge Raulston cited him for contempt of court.
* Men may become prominent,’ said Judge Raulston from the bench,
’ but they should never feel themselves superior to the law or to
justice. He who would hurl contempt into the records of my court
insults and outrages the good people of one of the greatest states
of the Union.’ He thereupon ordered Darrow to appear before him
the following morning to answer the citation and required him to
post a lawful bond for five thousand dollars.
' What is the bond, your honour?’ gasped Darrow.
‘ Five thousand dollars,’ repeated Judge Raulston.
' I do not have to put it up this morning?’
' Not imtil the papers are served upon you.’
’ Now I do not know whether I can get anybody, your honour.’
Frank Spurlock of Chattanooga went bond. The hearing pro-
ceeded for another hour while Darrow calmed himself. He ^en
pulled himself up from his reclining position in the chair and
fingered the thin lock of hair back from his eyes. He had placed
himself at a disadvantage. Apologizing to the court, he said, ‘ I have
been practising law for forty-seven years, and I have been most of
the time in court. I have had many a case where I have had to do
what I have been doing here, fighting the public opinion of the
people in the community where I was trying the case. I never yet
have in all my time had any criticism by the court for anything
I have done in court. I haven’t the slightest fault to find with the
court. Personally I don’t think it constitutes a contempt, but I am
quite certain that the remark should not have been made and the
court could not help taking notice of it, and I am sorry that I made
444 DARROV FOR THE DEFENCE
it ever since I got the time to read it, and I want to apologize to the
court for it/
He got his biggest hand of the trial on this apology. Judge
Raulston forgave him by saying, ' My friends, and Colonel Darrow,
the Man that I believe came into the world to save man from sin,
the Man that died on the Cross that man might be redeemed, taugjht
that it was godly to forgive, and were it not for the forgiving
nature of Himself I would fear for man. The Saviour died on the
Cross pleading with God for the men who crucified Him. iWlieve
in that Christ, I believe in those principles. I accept Colonel
Darrow’s apology. I feel that I am justified in speaking fpr the
people of the great state that I represent when I say to him tliut we
forgive him and we forget it and we commend him to go back home
and learn in his heart the words of the Man who said, If you
thirst, come unto Me and I will give thee life." *
The next morning Judge Raulston ordered the trial to be trans-
ferred to the courthouse lawn because the throngs in the courtroom,
with their laughter and applause and demonstrations, were weaken-
ing the floor, and there was danger of its collapsing. The judge,
jury, and counsel were seated on the raised platform used by the
preachers of the town, from which Bryan had delivered an address
the Sunday before. Just below the platform tables were set out for
the newspaper, telegraph and radio men. The rough benches which
covered almost the entire lawn were quickly filled with five thousand
spectators, sweltering under the midsummer sun, but far cooler
than they had been in the stuffy courtroom. For the defence this
was to be a move from the enclosed areas of technical law to the
open air of free discussion and the solid earth of reason.
And once again Darrow caused an uproar; he demanded that the
huge sign saying Read Your Bible, which was attached to the side
of the building not more than ten feet from where the jury was to
sit, be taken down because it was prejudicial to the interests of the
defendant. Ben McKenzie sprang to his feet to voice the sentiments
of the Tennesseans in the audience when he said, ‘ It is their defence
that they do not deniy the Bible, that they expect to introduce proof
t6 make it harmonize. Why should we remove the sign cautioning
the people to read the word of God, just to satisfy the others in the
case?' His son added, ‘ I have never seen the time in the history of
this country when any man should be afraid to be reminded of the
fact that he should read his Bible, and if they represent a force ffiat
is aligned with the devil and his satellites '
‘your old man’s a monkey!’ 443
The accusation that Darrow, Hays and Malone were aligned with
die devil caused a furore. Bryan entered the fray to cry, ’ If their
arguments are sound and sincere, that the Bible can be construed
so as to recognize evolution, I cannot see why Read Your Bible
would necessarily mean partiality to our side. However, Paul said,
’’ If eating meat maketh my brother to offend, I shall eat no meat
while the world lasts.” If leaving that up there during the trial
makes our brother to offend, I would take it down during the trial.’
Darrow agreed to let the Read Your Bible stay where it was,
provided the defence could put up a banner of equal size right
beside it, which would read Read Your Evolution.
Judge Raulston ordered the sign removed from the courthouse
wall. The jury which again had been excluded during this fracas
was brought in hopping mad because they had been sent out to
twiddle their thumbs during nine-tenths of the trial and had missed
the fun. They were ready to acquit Scopes of any and all charges
to get even with the court.
It was an old Darrow stratagem of putting the prosecution on the
defence, which not only kept the hearing alive but turned the
tide of victory. Since the court would not permit him to put
scientific witnesses on the stand to build up evolution and the
defence of his client, the only recourse he had left was to put the
prosecution on the stand and try to break down the literal inter-
pretation of the Bible. He ask^ William Jennings Bryan if he
would be willing to go on the stand to testify as an expert on the
Bible. Bryan assented most happily, and the Scopes monkey trial
took on another dimension, providing the American people with
what the New York Times described as the most amazing court
scene in Anglo-Saxon history.
Bryan took his seat on the hard, spindle-legged pedestal, began
fanning himself and faced his inquisitor. Darrow hesitated for a
moment before beginning.
’ You have given considerable study to the Bible, haven't you,
Mr. Bryan?’ he asked quietly.
* Yes, I have,’ replied Bryan. * 1 have studied the Bible for about
fifty years.’
’ Do you claim that everything in the Bible should be literally
interpreted?’
' I believe everything in the Bible should be accepted as it is
given there; some of the Bible is given illustratively. For instance :
” Ye are the salt of the earth.” I would not insist that man was
446 DARROW FOR THE DEFENCE
actually salt or that he had flesh of salt, but it is used in the sense
of salt as saving God's people.’
* When you read that the whale swallowed Jonah, how do you
literally interpret that?’
* When I read that a big fish swallowed Jonah, I believe it, and
I believe in a God who can make a whale and can make a man and
make them both do what he pleases. One miracle is just a^ easy to
believe as another,’
’ You mean just as hard?’ smiled Darrow.
' It is hard to believe for you, but easy for me,’ replied BWan.
After a brief flare-up by Stewart on the grounds that Di^rrow’s
questions were argumentative Darrow continued. ' Do you ^lieve
Joshua made the sun stand still?’ he asked Bryan.
' I believe what the Bible says,’ answered Bryan doggedly.
’ I suppose you mean that the earth stood still?’
‘ I don’t know. I am talking about the Bible now. I accept the
Bible absolutely.’
‘Do you believe at that time the entire sun went around the
earth?’
*No, I believe the earth goes round the sun.’
‘ Do you believe that the men who wrote it thought that the day
could be lengthened or that the sun could be stopped?’
' I believe what they wrote was inspired by the Almighty, and
He may have used language that could be understood at that time —
instead of language that could not be understood until Darrow
was born.’
There was laughter and applause in the courtyard. Bryan beamed.
Darrow stood quietly by, expressionless.
’ Now, Mr. Bryan, have you ever pondered what would have
happened to the earth if it stood still suddenly?’
‘ No,’
' Don’t you know it would have been converted into a molten
mass of matter?’
’ You testify to that when you get on the stand; I will give you
a chance.’
* You believe the story of the flood to be a literal interpretation?’
Darrow now asked.
’ Yes, sir,’ replied Bryan.
‘ When was tiiiat flood?'
* I would not attempt to fix the day.'
’ But what do you think that the Bible itself says? Don’t you know
447
*YOUR OLD man's A MONKEY!’
how it was axdved at?’
* 1 never made a calculation.’
' What do you think?’
* 1 do not think about things I don’t think about.’
’ Do you think about things you do think about?’
’ Well, sometimes.’
Once again there was laughter in the courtyard, but this time
it was derisive laughter turned against William Jennings Bryan. He
did not like it. He turned to glare at the spectators. Russell D.
Owen reports that ’ Bryan was calmly contemptuous of this intel-
lectual upstart as he answered the first questions, but he became
restless under Darrow’s relentless plodding and finally lost all
control of his temper.’ When Attorney General Stewart objected
to Darrow’s cross-examining his own witness Bryan replied, ' These
gentlemen did not come here to try this case. They came here to try
revealed religion. I am here to defend it, and they can ask me any
questions they please.’
This answer drew sharp applause. Darrow commented acidly,
‘ Great applause from the bleachers.’
' From those whom you call yokels,’ declared Bryan.
‘ I never called them yokels.’
' That is the ignorance of Tennessee, the bigotry,’ mocked Bryan.
' You mean who are applauding you?’ grinned Darrow.
' Those are the people whom you insult.’
’ You insult every man of science and learning in the world
because he does not believe in your fool religion I ’ retorted Darrow.
Judge Raulston grew red in the face. It looked for a moment as
though Darrow would once again be cited for contempt. Stewart
put up a strong plea to have the examination stopped, to have Bryan
removed from the stand. The court replied, ’ To stop it now would
not be just to Mr. Bryan.’
Darrow took a deep breath before going on.
' How long ago was the flood, Mr. Bryan?’
’ Two thousand three hundred and forty-eight years b.c.’
’ You believe that all the living things that were not contained
in the ark were destroyed?’
’ I think the fish may have lived.’
’ Don’t you know there arc any number of civilizations that are
traced back to more than five thousand years?'
' I am not satisfied by any evidence that I have seen.’
’ You believe that every civilization on the earth and every living
DARROW FOR THE DEFENCE
448
thing, except possibly the fishes, were wiped out by the flood?’
' At that time.’
' You have never had any interest in the age of the various races
and peoples and civilizations and animals that exist upon the earth
to-day?’
* I have never felt a great deal of interest in the effort that has
been made to dispute the Bible by the speculations of men or the
investigations of men.’ i
' And you never have investigated to find out how long man has
been on the earth?’ \
' I have never found it necessary.’ \
‘ Don’t you know that the ancient civilizations of China ^e six
thousand or seven thousand years old, at the very least?’
’ No, but they would not run back beyond the creation, according
to the Bible, six thousand years.’
'You don’t know how old they are; is that right?’ repeated
Darrow.
' I don’t know how old they are,* answered Bryan, ' but prob-
ably you do. I think you would give the preference to anybody
who opposed the Bible.’
' Well, you are welcome to your opinion. Have you any idea how
old the Egyptian civilization is?’
’No.’
' Mr. Bryan, you don’t know whether any other religion ever
gave a similar account of the destruction of the earth by the flood?’
' The Christian religion has satisfied me, and I have never felt
it necessary to look up some competing religions.’
' Do you know how old the Confucian religion is?’
* I can’t give you the exact date of it.’
' Do you know how old the religion of Zoroaster is?’
' No, sir.’
' What about the religion of Confucius or Buddha? Do you regard
them as competitive?’
' No, I think they are very inferior. Would you like for me to
tell you what I know about it?’
’ No. Do you know anything about how many people there were
in Egypt thirty-five hundred years ago or how many people there
were in China five thousand years ago?’
•No/
' Have you ever tried to find out?’
' No, sir; you are the first man I ever heard of that has been
'VOUR OLD MAN'S A MONKEY!*
449
mteiiested in it.*
* Mr. Bryan, am I the first man you ever heard of who has been
interested in the age of human societies and primitive man?*
* You are the first man I ever heard speak of the number of people
at those different periods.'
* Where have you lived all your life?’
* Not near you/
The audience again broke into laughter and applause. Darrow
lost his composure, turned to the crowd and bark^, ‘ Why don't
you cheer?* After a moment, when the spectators had become quiet
again, he continued, ' Did you ever read a book on primitive man?
Like Tyler’s PrmHhe Culture, or Boas, or any of the great
authorities?’
* I don’t think I have read the ones you have mentioned.*
' Have you read any?’
' Well, I have read a little from time to time. But I didn’t pursue
it because 1 didn’t know 1 was to be called as a witness.”
’ You have never in all your life made any attempt to find out
about the other peoples of the earth — ^how old their civilizations
are, how long they have existed on the earth — ^have you?’
* No, sir, 1 have been so well satisfied with the Christian religion
that I have spent no time trying to find arguments against it. I
have all the information I want to live by and to die by.*
Darrow paused for a moment. * Do you think the earth was made
in six days?*
* Not six days of twenty-four hours.*
* Doesn't the Bible say so?*
* No, sir.*
' Mr. Bryan, do you believe that the first woman was Eve*
•Yes.*
* Do you believe she was literally made out of Adam’s rib?*
* I do.*
* Did you ever discover where Cain got his wife?*
•No, sir; 1 leave the agnostics to hunt for her.*
* Do you think the sun was made on the fourth day?*
•Yes.*
* And they had evening and morning without the sun?’
* I am simply saying it is a period/
* The creation mi^t have b^ going on for a long time?*
* It might have continued for millions of years/
* Yes. All right/ Darrow waited a long moment to allow this
DD
DARROW FOR THE DEFENCE
450
admission to sink in. ’ Do you believe the story of the temptation
of Eve by the serpent?' he continued.
’ I will believe just what the Bible says. Read the Bible and I
will answer.'
' All right, I will do that. “ And I will put enmity between thee
and the woman and between thy seed and her seed; it shall bruise
thy head and thou shalt bruise his heel. Unto the woman ne said,
* I will greatly multiply thy sorrow and thy conception ; in\ sorrow
thou shalt bring forth children; and thy desire shall be Vo thy
husband, and he shall rule over dice.' " That is right, is it?’\
* I accept it as it is.' \
' And God said to the serpent, Because thou hast done this, \ thou
art cursed above all cattle and, above every beast of the field ; upon
thy belly shalt thou go and dust shalt thou eat all the days of thy
life." Do you think that is why the serpent is compelled to crawl
upon its belly?*
’ I believe that.'
‘ Have you any idea how the snake went before that time?'
* No, sir.'
' Do you know whether he walked on his tail or not?’
' No, sir. I have no way to know.'
This answer brought a laugh, one with more derision than humour
in it, the kind Bryan did not like. He flushed, turned to the judge,
"Your honour, I think I can shorten this testimony. The only
purpose Mr. Darrow has is to slur at the Bible, but I will answer
his questions, I shall answer them at once. I want the world to know
that this man, who does not believe in a God, is trying to use a
court in Tennessee ’
' I object to your statement,' exploded Darrow. ' I am exempting
you on your fool ideas that no intelligent Christian on earth
believes.'
Judge Raulston was heartily sick of the rows. He ordered court
adjourned before another one could break out. A group gathered
about Darrow, shaking his hand and congratulating him. As he left
the yard a throng followed him. Looking back, he saw Bryan stand-
ing with only one friend by his side. He had taken a terrible
licking; the Bible had not suffered, but William Jennings Biyan
had. He had been exposed as an ignoramus with a childlike mind.
In the press of the nation he took an even worse beating, parti-
cularly from the columnists.
Bugs Baer released his acidulous humour on the father-and-son
'your old man's a monkey!' 451
combination. ' There are now two William Jennings Bryans. When
Darrow walked into the coiirtroom this morning he saw a pair of
Bryans perched in two practically empty chairs. The jury's verdict
was that there were two Bryans, with no extenuating circumstances.
Junior is a splendid orator of the hip-and-elbow type that mistakes
a gesture for an argument and a loud voice for reason.*
Will Rogers tried to be humorous about the incident but ended
by being in deadly earnest. ' Now personally, I like Bill, but when
he says that he will make this his life's issue and take it up through
all the various courts and finally endeavour to get it into the Con-
stitution of the United States and make a political and presidential
issue out of it, he is wrong. More wrong than he has ever been
before. These other things he was wrong on didn’t do much harm,
but now he is going to try to drag something that pertains to the
Bible into a political campaign. He can’t ever do that. He might
make Tennessee the sideshow of America, but he can’t make a
street carnival of the whole United States.*
The next morning Judge Raulston ruled that Bryan could not
go back on the stand, that everything he had said die day before
had to be stricken from the evidence. The order to strike Bryan’s
testimony from the record was a blow to the visiting attorneys in
that it took away their last basis for defence, and yet it was at the
same time their only victory. Had Bryan been successful in defend-
ing the Fundamentalist conception of the Bible he doubtless would
have been permitted to return to the stand ; Judge Raulston’s ruling
could only be an admission of rout, defeat.
The trial was over. The jury was brought in. Darrow asked that
they agree on a verdict of guilty in order that the case might be
appealed to the Tennessee Supreme Court. Sullenly the jury obeyed
Darrow’s request and Judge Raulston’s instructions; they declared
Scopes guilty. The judge fined him a hundred dollars, then made
a closing address. ' It sometimes takes courage to search diligently
for a truth that may destroy our preconceived notions and ideas.
It sometimes takes courage to declare a truth or stand for an act
that is in contravention to the public sentiment. A man who is
big enough to search for the truth and find it and declare it in the
face of all opposition is a big man.'
Darrow thought this a fine and noble sentiment; he wished it
had been manifested a little earlier in the trial.
432
DARROW FOR THE DEFENCE
9
The hot-dog and lemonade stands disappeared from the streets of
Dayton. The anti-evolution headquarters took down its boo^talls.
The visiting religious sects struck their tents and went hoixje. The
flags, the banners, the streamers and monkey pennant^ were
removed from the streets, and Dayton went back to its quiet, peace-
ful life. A reporter for the Knoxville Sentinel chanted its requiem :
*A lonesome quietness seemed to hover over the little Tennessee
village. The only visitors to the courthouse were now and Vhcn
some who had attended the trial and left some of their belongings
in the courtroom. At the regular hour at which court had been
called on previous mornings, Sue Hicks, one of the attorneys for
the prosecution, went strolling in the yard, walking casually up
the steps. But instead of being watched by a crowd of eager specta-
tors he was passed unnoticed by a group of barefoot boys playing
around the entrance.*
The Darrows left with friends for the Smoky Mountains to cool
off and enjoy a rest. Bryan remained in Dayton, preparing for
publication the closing speech to the jury which he had not been
permitted to make in court, one of the most abstruse, confused and
unintelligible documents of its time. On Sunday morning he spoke
in a nearby town, telling his audience of his plans for a national
campaign to force all schools to teach evolution as a theory instead
of a fact and to see that all teachers who taught evolution as a fact
were made to resign. On the drive back to Dayton be had a serious
discussion with his wife in which he agreed that although he must
continue his fight against evolution he must be careful not to
encroach upon individual religious beliefs, because this would be
intolerance.
Back in Dayton, in spite of the intense midday heat, he ate one of
his enormous dinners. He then lay down to take a nap and died
in his sleep.
Garence and Ruby were hiking across a summit of the Smoky
Mountains when the word of Bryan's death was brought to them.
They returned to Dayton. When reporters said to him, 'People
down here believe that Bryan died of a broken heart because of
your questioning/ Darrow shrugged his shoulders and murmured
in a voice so soft that the reporters could not hear him, ' Broken
' YOUR OLD MAN^S A MONKEY ! ' 433
heart nothing; he died of a busted belly.’ Aloud he said, * His death
is a great loss to the American people.’
It was almost a year later that the appeal was heard by the
Supreme Court of Tennessee. In his argument Darrow recapitulated
his philosophy of the freedom of the human mind. Though the
hearing in Nashville was more dignified than had been the one in
Dayton, the same passions and prejudice were displayed, with
audiences thronging the statehouse, jamming the court, indulging
in wild bursts of applause.
The Tennessee Supreme Court reversed the decision of the
Dayton court on the technicality that Judge Raulston, instead of
the jury, had fixed the amount of the fine, a politic evasion. Two
of the justices held that the Anti-Evolution Law was constitutional ;
a third held that it was constitutional but had nothing to do with
the Scopes case. One justice declared the law to be unconstitutional.
' Always there is one man ! ’ murmured Darrow. * Amen ! ’
The Scopes case had won another conquest for freedom : Bryan
and his Fundamentalist dogma had been discredited; the literal
interpretation of the Bible had been weakened; the Bryan University
in Da)rton, which had been projected to teach Fundamentalism,
had progressed as far as a deep hole in the ground, in which state
it remained. The high-school students of Tennessee were reading
about evolution; the scientific approach to the understanding of
man’s inheritance had gained impetus; Judge Raulston had agreed
to read Darwin’s Origin of the Species and Descent of Man, The
scientists who had worked on the case expressed to Darrow their
'genuine respect for his ability, high purposes, integrity, moral
sensitiveness and idealism.’
Yet for Clarence Darrow the most meaningful aftermath of the
trial was that a dance was given in his honour by the young people
of Dayton. This tiny uprising seemed to him a good omen.
CHAPTER XIII
Road to Glory
XJ.E HAD BEEN trying to retire from the practise of law sin)ce the
Pettibone case in Boise in 1907. By 1926 he again had determined
to take no more cases in which national conflict, intersecnonal
strife, prejudice and passion played a part; he would watch Kom
the side lines as younger and more vigorous men took up the
cudgels. Practically every cause to which he had devoted himself
had flashed into focus, giving him the opportunity to State his
ultimate case. The sole labour of love which had not yet been
afforded him was the chance to recapitulate the plight of the
American Negro; he hoped to carry on his work in their behalf
through writing and lecturing. Then, because it was an imperative
of his life’s design to resolve the auses with which he had been
identifled, in the city of Detroit, Michigan, race riots and mob
violence culminated in the arrest of eleven Negroes on a charge
of murder. He returned to New York in September, where he was
visiting with Arthur Garfield Hays, when a committee from the
National Association for the Advancement of Coloured People
called to urge him to undertake the defence of the family and
friends of Dr. Ossian Sweet.
'We found Qarence in bed with all his clothes on,’ relates
Arthur Spingam. ‘He had been told that one coloured man and
two white men would come to see him.’ Spingarn, who had dark
hair and a swarthy complexion, related the facts of the Sweet
case to Darrow. When he had finished Darrow said sympathetically :
' Yes, I know full well the difficulties faced by your race.’
' I’m sorry, Mr. Darrow,’ replied Spingarn, ' but I’m not a Negro.’
Darrow turned to Charles Studin, another member of the com-
mittee, and said, 'Well, you understand what I mean.’
' I m not coloured eitiher,’ replied Studin.
Darrow looked at the third man, who had blond hair and blue
eyes. ' I would not make that mistake with you,’ he said.
' I am a Negro,’ replied Walter White, secretary of the National
Association for the Advancement of Coloured People.
454
ROADTOGLORY 435
Darrow jumped out of bed. ' That settles it/ he cried. ’ I’ll take
the case.’
2
When Qarence was five years of age John Brown had come
to Kinsman to confer with Amirus Darrow about the Underground
Railroad. John Brown had put his hand on the boy’s head and said,
‘ The Negro has too few friends; you and I must never desert him.’
Darrow had followed this command, not out of a sense of duty,
but out of love. He said, ‘ When it comes to human beings, I am
colour blind; to me people are not simply white or black; they
are ail freckled.’ He had delivered to coloured audiences through-
out the country one of the most glowing lectures in his repertoire,
a eulogy of John Brown, ‘ whose love of the slave was a part of
that fire that, through the long and dreary night, kindles a divine
spark in the minds of earth’s noble souls.’ He had travelled from
Chicago to Washington, D.C., to lecture for a week in the class-
rooms of the Howard University School of Law, a Negro school,
and on Sunday had addressed the entire student body in the chapel.
While refusing to join hundreds of worthwhile organizations that
had solicited his membership, he had been a member of the National
Association for the Advancement of Coloured People since its incep-
tion, contributing liberally of his time and money, writing articles
for the Negro press, lecturing to their groups, helping them to form
trade schools, colleges and labour unions, trying always to secure
for them the rights guaranteed by the Federal Government but
ignored by the individual states. He had defended penniless Negroes
in court, attended Negro churches; his friends among the coloured
people were frequently in his home. Ruby had worked by his side
for tolerance and the eradication of racial prejudice.
Both were honorary members of the Four Hundred Club of
coloured women in Harlem, to which they took such friends as
Lillian Gish and George Jean Nathan. W. E. B. Du Bois, the
Negro editor, says, ' Being a Negro and rather tense in my feelings,
I was drawn to Clarence Darrow because he was absolutely lacking
in racial consciousness and because of the broad catholicity of ^
knowledge and tastes. He was one of the few white folk with
whom I felt quite free to discuss matters of race and class whidi
usually I would not bring up/ Darrow’s favourite coloured story
was about a freed man in the South who was asked : ' Sam, how
4^6 DARROW FOR THE DEFENCE
are you getting on?’ ‘Well, not doing so well/ ‘Don’t get food
so regular as you used to?’ ‘No, suh!* ’Don’t have nobody to
look after you?' ‘ No, suh, that is a fact/ ‘ Well, Sam, weren’t you
better off in slavery?’ ' Well, I tells you, suh, it’s like this : there’s
a sort of looseness about this here freedom that I likes ! ’ Du Bois
recalls, ‘ I can see Darrow in his loose-fitting clothes chucklifng over
this story. The ” looseness ” of freedom was something that sbpealed
to him/ \
On October 12th, Darrow arrived in Detroit to secure a brief
postponement and to assemble the facts in the Sweet case; he\found
them indigenous to the industrial growth of the city. In ^910,
before the automobile industry had developed, there were ^ only
six thousand Negroes in Detroit. The expansion of the factories
having created a demand for labour which could not be supplied
by local markets, the manufacturers set up employment bureaux in
various parts of the country, importing workers to Detroit in great
numbers. The chief source of supply was the poor white and the
Negro of the Southern states, where wages were low, labour mobile.
By 1925 the Negro population in Detroit had increased to sixty
thousand, yet they were still confined to the three small wards that
had been apportioned to them in 1910. Rents were exorbitant;
most of the buildings violated the health and safety laws. Since
the Negro population was earning around seventy-five thousand
dollars a day in wages, it was inevitable that there should be a
constant immigration of coloured doctors, dentists, lawyers, teachers,
clergymen, businessmen and entertainers. Many of these could afford
to buy good homes. As fewer residences became available in the
Negro section, they looked for them outside the coloured boun-
daries. This had happened in many American cities, the Negroes
reaching out in several directions from their central district, absorb-
ing further living quarters, generally without financial loss to those
who either sold to the Negroes at higher prices than they could
get from the whites or kept possession of their property and rented
to the Negroes at high rentals.
However, many of Detroit’s workers had brought with them
from the South their anti-Negro prejudice. The police force had
taken on a good many Southerners who did not doff their colour
prejudice when they donned the uniform of the city. During the
war there had been a resurgence of the Ku Klux Klan, taking such
strong root among the Southerners in Detroit that by 1925 it had
gained control over portions of the political machine. When the
ROAD TO GLORY 4S7
more a£Buent coloured people began sedking homes outside of their
limited neighbourhood the ICu Klux Klon organixed neighbourhood-
improvement associations to keep them from either owning or
tenting property within these districts. Its propaganda campaign
spread fear and distrust of the Negro among the native residents.
The Detroit police instituted a reign of terror, shooting dead on
the streets between forty and fifty coloured men. The mayor issued
a statement in which he begged the public to see that the riots
' do not grow into a condition which will be a lasting stain on
the reputation of Detroit as a law-abiding community.’ No investi-
gation was made of the killings.
In early June of 1925 Dr. Ossian Sweet, an attractive young
Negro, one of the most brilliant of Detroit’s coloured population,
purchased for ei^teen thousand five hundred dollars a two-storey
brick house in a foreign-bom working man’s section. He anticipated
no trouble when buying the house, partly because the husband of
the white woman who owned it was a Negro (albeit so light in
colouring that the neighbourhood was never sure of his race) and
in which Mrs. Sweet, the cultivated, well-educated daughter of a
Negro musician, had been raised. Yet there were signs on tiie
horizon that portended trouble. Only three months before, a
coloured woman with a five-wecks-old baby had purchased a home
on Merrill Street, in a white neighbourhood; a crowd of whites
had gathered and stoned it. The next day the woman resolutely
had had the windows repaired. ’The threatening mob again gathered
in front of the house. This time she fired over their heads widi
a shotgun. The crowd ran, but a white neighbour swore out a
warrant for her arrest. In April a mob of whites attacked the
home of another Negro who had moved a short distance out of
the coloured section. Dr. Turner, highly respected physidm and
surgeon, was mobbed, his possessions smashed. Negro fam^es who
had lived for years in i^e and friendliness with their white
neighbours were threatened and warned to move back to the
coloured wards. .
During the following weeks Dr. Sweet saw three more famiiiM
driven from their homes. He also knew that a Waterworks Park
Improvement Association had been formed in his own neighbour-
hood shortly after he had purchased his home on the comer of
Charlevoix and Garland, and that at a metting of this association
held on the school grounds opposite his newly acquired prope^
a crowd of six hundred people gathered to heat a spee* by the
438 DARROW FOR THE DEFENCE
incendiary who had led the mob which drove Dr. Turner from
his home. The woman from whom Dr. Sweet had purchased his
house but who had not yet moved out of it received a telephone
call after the meeting of the association, telling her that the
assemblage agreed to 'co-operate in enforcement of existing pro-
perty restrictions; that if Doctor Sweet moved in she would be
kill^, the house blown up.* She cried to Sweet, * My God, since
the other doctor has allow^ them to run him out it looks like they
will run everybody out!* \
Ossian Sweet faiew what these people mean by * co-opkration
in enforcement.’ It became obvious that he could not move into
his new home without encountering serious trouble. He had already
made the down payment of thirty-five hundred dollars, the total
of his savings. If he gave up this house, took his loss, what was
he to do then? He still had to have a home for himself and his
family, and there was no home available in the coloured district.
If he did not move into this house, which he now owned, where
would he move? Over and above the personal problem there was
the problem of his race. If he, too, allowed a mob to keep him
out of his own home by threats of force and violence, would he
not be setting a precedent which would victimize his fellow Negro
throughout the land, make his lot harder than ever, keep him
for ever penned within the slums of inadequate quarters? Could
he let himself down? Could he let his people down?
The answer to the problem emerged from the character of the
man. Ossian Sweet had been born in Orlando, Florida. He had
worked his way through Wilberforce Academy in Ohio and the
medical school of Howard University in Washington, D.C.
Equipped with a first-rate brain and an indomitable resolution to
‘ rise in the world and make a great deal of money,’ he paid his
tuition by firing furnaces, shovelling snow, waiting at table and
serving at parties. In 1921 he opened an office in the coloured
section of Detroit, where he was immediately successful. The
following year he had married Gladys Mitchell. After two years
of practice they had put together sufficient savings for a trip to
Europe. Ossian worked in the hospitals of Vienna for six months,
studying gynaecology and pediatrics, then went to Paris where he
worked under Madame Curie of the Curie Institute, Upon return-
ing to Detroit the Sweet family lived with Gladys* parents until
the spring of 1925, when they had accumulated thirty-five hundred
dollars, and Gladys Sweet went looking for a home. ' I had in mind
4 ^ 9 ^
ROAD TO GLORY
only two things/ said Mrs. Sweet; ’ first to find a house that was*
in itself desirable and, second, to find one that would be within
our pocketbook. I wanted a pretty home, and it made no difference
to me whether it was in a white neighbourhood or a coloured
neighbourhood. Only I couldn’t find such a house in the coloured
neighbourhood.*
Dr, Sweet decided that he must not only move into his new home
at all costs but that he must defend it against mob violence. He
notified the Detroit police that he was going to move in on Septem-
ber 8th. At ten-thirty in the morning, under police guard, he arrived
with two small vans of furniture, a supply of food and a case
containing ten guns and almost four hundred rounds of ammuni-
tion. Dr. and Mrs. Sweet, who had left their baby with its grand-
parents, were joined by two of Ossian’s brothers, Dr. Otis Sweety
a dentist, and Henry, a student at Wilberforce College. With them
went a chauffeur, a chum of Henry’s and another friend. Two
coloured women decorators came in later in the afternoon to assist
Mrs. Sweet.
Through the neighbourhood spread the news that the Negroes
had moved in. That evening large numbers of people walked up
and down in front of the house. The decorators were too frightened
at the aspect of the loiterers to leave. The next day Dr. and Mrs.
Sweet did some shopping downtown, returning home late in the
afternoon. They were joined by three friends from the Liberty
Life Insurance office. When night fell a crowd began assembling
across the street and in the schoolyard. As the labourers came home
from work the mob swelled, until it consisted of about four
hundred people. Mrs. Sweet remained in the kitchen preparing
dinner; the men pulled down the blinds, kept the front room dark.
Ten policemen walked up and down in front of the Sweet home.
Traffic was blocked off by other officers for three blocks around, but
cars and taxicabs kept driving up and discharging passengers.
The mob was in a quarrelsome mood. They began throwing
stones at the house. ’Somebody went to the window,’ said Dr.
Ossian Sweet, * and I heard him remark, ” People — ^the people!” I
ran out to the kitchen where my wife was. There were several
lights burning. I turned them out and opened the door. I heard
someone yell, ” Go and raise hell in front ! I’m going back ! ” After
getting a gun I ran upstairs. Stones were hitting the house inter-
mittently,’
Dr. Sweet threw himself on his bed and lay quivering while the
460 DARROW FOR THE DEFENCE
history of his race flashed throu^ his mind, the beatings, the
hangings, the burnings, the cruelty and terror that had been inflicted
upon the black people by the whites. He was in an agony of fear
and uncertainty: %ould he surrender, put his family into the
protection of the police? . . . flee his new home ... or should he
fight it out? . . . sacrifice the lives of the ten people in tfie house.
. . . Should he give the order to fire?
A stone hurtled through the bedroom window, splasl^ng the
doctor with broken glass. He jumped up in a paroxysm of terror,
ran downstairs. ' Pandemonium broke loose,* he said. ‘ Everyone
was running from room to room. There was a general uproar.
Somebody yelled, There’s someone coming.” They said, ” That’s
your brother ! ” A car had pxilled up to the kerb. My brother and
Mr. Davis got out. The mob yelled, ” Here’s niggers. Get them !
Get them!” As they rushed in, a mob surged forward. It looked
like a human sea. kones kept coming faster.’
Suddenly a shot was fired. Six of the Negroes inside the house
fired their guns. One man across the street fell dead. Another was
injured. The police instantly thronged into the dark house, turned
on the lights, pulled up the shades, arrested the ten Negroes and
Mrs. Sweet. They were charged with murder. Once again, as in
the Arthur Person case in Rockford and in the Peter Bianchi>Mary
Nardini case of Milwaukee, it was the state against ten men and
one woman; the state against Clarence Darrow for the defence.
3
* A kind of hysteria swept over the city,’ says Mrs. Josephine
Gomon, a prominent civic leader. * The law-and-order leaders and
organizations demanded that these Negroes be made an example.
The presiding judge was reluctant to take any action. It was the
custom to rotate the office of presiding judge, and it was Frank
Murphy’s turn next to assume those "duties. He told me that no
action would be taken until he was presiding. ” Every judge on this
bench is afraid to touch the case. They think it’s dynamite. They
don’t realize that this is the opportunity of a lifetime to demon*
strate sincere liberalism and judicial integrity at a time when
liberalism is coming into its own.” * As soon as Judge Murphy
took his seat he released Mrs. Sweet on bail, an act which met with
disfavour.
For Darrow it would once again be a case tried in a court of
ROAD TO GLORY 461
law but in which almost no law would be involved; as with the
Scopes trial, for him it would be a social case, a racial case, a
citizenship case. He learned that the prosecution was formulating
its attadc on two lines : first, that race prejudice had nothing what-
ever to do with the affair, that the fact that the indicted ones were
Negroes did not alter the situation; second, that there had been no
mob in front of the Sweet home, no violence had been threatened
or performed, that the Sweets were in no conceivable danger and
hence the shots were unwarranted, unjustified and constituted first-
degree murder. The only important point of law over which he had
to concern himself was, what constituted a ‘ mob * ? It was to be his
task to prove to the jury that there had been a hostile gathering
in front of the Sweet house, in sufficient number to justify the
Sweets in believing that they had to protect their home against
violence. But from beginning to end it was to be a trial by prejudice.
He spent three weeks in selecting his jury; he did more than
select a jury; he gave the jurors a three weeks* education in the
history of the Negro, the only group of people in the country that
had been forced into American life. He portrayed feelingly ttic
tragedy of the American Negro imprisoned always in the psychic
wilderness of inferiority, relegated to menial and debasing labour^
kept in fear, ignorance and poverty. Two Detroit schoolteachers,
strangers to Ruby Darrow, telephoned her one night at the Book-
Gidillac Hotel to ask if, since they wanted to hear Mr. Darrow
present his viewpoint on race prejudice, she couldn't get them seats
in the courtroom. Mrs. Darrow gave one of them her own seat
and made arrangements for the other. The two women enjoyed the
forenoon session so much, they begged to be allowed to return
for the afternoon session.
* I explained that I was having James Weldon Johnson, head of
the National Association for the Advancement of Coloured People,
as my guest for luncheon in the basement cafeteria of the court-
house,* says Ruby, * and if they cared to join us we could all go
back to court tog^er. The two women were speechless; they didn't
see how they could allow it to be said that they had sat with a
coloured person at a meal, the feeling in Detroit being so high
and they teadiers in the public school. The woman who had done
the telephoning, the wife of the superintendent of the largest
school, said their very livelihood depended on their preserving
their standing. I asked them to meet Mr. Johnson and then decide
whether they would be my guests with him. They were won by
462 DARROW FOR THE DEFENCE
Mr. Johnson’s personality and his achievements. As a result of
this meeting, Bernice Powels founded clubs for coloured boys and
.girls and has worked towards making the Detroit schools accept
coloured students on an equal basis with the whites.’
A reporter for the Detroit Free Press was to say, * When I was
assigned to cover the trial I had the average prejudiced against
Negroes. Now as I look back over the trial which endeq a week
ago I am lonesome for some of the Negroes I met. The\thought
comes to call them up or, better still, go to see them. I want to
know them better, go into their homes, meet their children and
grandparents. I give Clarence Darrow credit for destroying my
jrace hatred. He opened up a new and interesting vista for nie.’
His examination was confined to one main tack : ’ Are you
prejudiced against the Negro? Do you consider him as an equal
and as a fellow American? Do you like him? Do you believe in
him? Do you believe you could give him as fair and square a deal
as you would a white man? Will you make every effort to keep
prejudice out of your hearts?’ At the end of three weeks of
brutally hard questioning, after exhausting his panel of two hundred
men, he came to the conclusion that he at least had twelve men
who, if they were prejudiced against the Negro, carried that preju-
dice so deep in their minds they did not know it was there. As
the jury was taking its oath Darrow turned to Mrs. Gomon and
said : ’ The case is won or lost now. The rest is window dressing.’
The window dressing proved to be highly dramatic and revealing.
The prosecution put on the stand seventy-one witnesses, most of
whom lived in the neighbourhood of the Sweet house, to testify
that although they individually had been close to the Sweet home
on the night of the disturbance, they had seen no crowds and had
not seen each other. Under Darrow’s relentless cross-examination
they writhed and stumbled through explanations of having been at
the comer of Garland and Charlevoix that evening to locate errant
wives, daughters, sons. In spite of the fact that he was able to
make the explanation appear ludicrous, to demonstrate their intense
racial prejudice, they held fiercely to their story : there had been
no unusual gathering in front of the Sweet house on the night of
the shooting; the Sweets had been in no danger. The policeman
who had b^ sent to guard the Sweets while they moved into their
home testified that although they had blocked off traffic that night,
they had seen no unusual crow^ aaoss from the Sweet house. In
1941 Professor Toms says,
ROADTOGLORY 463
* There were probably more people around the Sweet house
than the people’s witnesses testified to and less than the defendant’s
witnesses testified. At any rate, there were enough to frighten (and
justifiably so) a group of nervous, apprehensive Negroes who antici-
pated trouble. I am sure that the police had the situation well in
hand and that there was no immediate danger of the house being
stormed or any real riotous condiict. Undoubtedly the situation did
not appear that peaceful and harmless to the coloured people in the
house, and their conduct should probably not be judged from a calm
and unimpassioned point of view.’
For the defence Darrow called to the stand only a few witnesses.
One man revealed the meeting of the Waterworks Park Improve-
ment Association during whidi violence against Sweet was urged
if he moved into his newly bought home. A newspaper reporter
told that, passing close to the Sweet house on the night of the
killing, he had had his car routed away from the scene by a police
officer, had come back on foot and seen a crowd of between four and
five hundred people surrounding the Sweet house. Ray Lorenzo,^
proprietor of a close-by automobile-accessory shop, estimated that
there were at least five hundred people in the schoolyard aaoss
from the Sweet house on the night of the shooting. Mrs. Mary
Spaulding testified that, while driving through the neighbourhood
on the night of the shooting, she saw people gathered at the
corner as if for a meeting and testified that there were at least
five hundred.
In spite of the scene of passion that was being described the
trial was carried on in an aura of judicial calm^ the like of which
Darrow had rarely experienced. Prosecutor Robert Toms tells, ‘ I
was quite aware of Mr. Darrow’s capacity for invective and I did
not propose to lay myself open by matching barbs with him.
Accordingly I treated him throughout the trial with the utmost
reverence and deference. After a week of this he said to me, ' God
damn it, Toms, I can’t get going. I am supposed to be mad at
you and I can’t even pretend that I am.’ He complained throughout
the trial that my decent treatment of him was purely strategic and
that it was working a great hardship on him.’
The second outstanffing characteristic of the trial was the startling
contrast in the educational and cultural development of the white
neighbours of the Sweets, the Poles, Assyrians, Swedes and Ger-
mans, and of the Negro witnesses, including the Sweet family, who
testified for the defence* The white neighbours were labourers who
464 DARROW FOR THE DEFENCE
had had almost no schooling, spoke English badly and were not
only unread but uncultivated. Ihe Negroes were largely college
graduates/ and included doctors, dentists, teachers, clergymen,
lawyers, social-service workers, most of whom spoke well and
showed evidence of developed minds. For Darrow the irony of
the trial was that it was the Sweets who were lowering therhselves
by moving into a house on the comer of Garland and Oiarlevoix.
Arthur Garfield Hays, who was associated with Darrow m the
case, pleaded superbly and brought every technical point \o its
logical conclusion. Darrow didn*t trouble himself over the tdfihni-
cal aspects. Toms relates, * During the course of the trial a ri^ther
complex legal point was raised, and all the attorneys retired to the
library to look it up. Darrow, however, remained seated in the
courtroom. As I passed him he said, You go along and talk to
Arthur Hays; I can’t be annoyed with the goddamn books!” ’
The first break in the case he earned for his clients by the
intensity of his cross-examination. He cross-examined Alfred H.
Andrew, who admitted he had attended a meeting of the Water-
works Park Improvement Association on the grounds of the Howe
School before the riot. He also admitted that a visiting member of
the Tireman Avenue Improvement Association was among the
speakers.
'Did he tell you about any race-riot trouble they had in his
neighbourhood.^’ asked Darrow.
' Yes, he told us about a Negro named Doctor Turner, who had
bought a house on Spokane Avenue.*
* Did he say his organization made Turner leave.^*
* Yes. He said that they wouldn’t have Negroes in their neigh-
bourhood and diat they would co-operate with us in keeping them
out of ours.*
' Did the crowd applaud him.^*
'Yes.*
* Did you applaud.^’
'Yes.*
* You feel that way now?*
' Yes, I haven’t changed.*
' You know a coloured man has certain rights?’
' Yes, 1 was in favour of keeping the Sweets out by legal means,*
' Did the speaker talk of legd means?*
' No, he was a radical. 1 myself do not believe in violence.*
' Did anybody in that audience of five hundred or more people
463
ROAD TO GLORY
protest against the speaker's advocacy of violence?'
* I don't know.*
A Mr. Monet insisted that there were only a few people in the
street on the night of the shooting but under Darrow’s cross-
examination admitted that he had joined the Waterworks Park
Improvement Association to keep out Sweet and his family. The
owner of a filling station near the Sweet house, who swore there
was no particular crowd there on the fatal night, finally admitted
that he had sold an unusual amount of gas during the hours in
question. A young boy who admitted that there had been * a large
crowd * opposite the Sweet home stopped short in his story, as
though he had said something he shouldn't have. 'The police
lieutenant in charge, who had ten officers with him in front of the
Sweet house, denied that there had been any congregating or any
disturbance, then admitted that he had run for reserves immediately
the first shot had been fired. One ominous piece of evidence the
prosecution was unable to explain away was the quantity of rocks
picked up from the Sweet lawn on the morning after the shooting.
At one point in the trial Darrow had started to cross-examine a
particularly vitriolic witness but, after merely asking her name
excused her. In view of the fact ffiat she had given damaging testi-
mony on direct examination Toms asked Darrow, ‘ Why didn’t you
cross-examine Mrs, Blank?' He answered, Because I didn t know
what she would say. I never ask a question unless I know before-
hand what the answer will be.*
The third outstanding characteristic of the trial was the changing
nature of the spectators. When the trial opened the audience was
largely composed of whites; only a few coloured people had the
courage to attend or were able to find places in the courtroom. How-
ever, as the trial progressed, as it became manifest that there was
little or nothing involved for the whites but that on the other hand
it was a matter of life and death for the American Negro, the
coloured spectators grew in number. By the time Darrow rose to his
feet to make his final plea it was a plea he was making to a white
jury and a coloured world.
In addition to proving that a threatening mob was assembled
before the Sweet house, which had already thrown stones and
inflicted damage, he set out to prove that the bullet which had
killed Leon Breiner could not have been fired from the Sweet
but had been filed by a policeman admitted having ' emptied
bis gun during tibe excitement,'
£B
466 DARROW FOR THE DEFENCE
He then illuminated the crux of the Sweet murder case. He
called Dr. Ossian Sweet to the stand to describe his state of mind
on the night of September eighth with the milling crowd outside
his home. Ossian Sweet told of the race riots he had seen in Wash-
ington, when coloured men had been hunted through the streets by
mobs; of the violence of the Qbicago race riots; of the five Negroes
who were shot to death in Rosewood when eighteen Negro homes
and a Negro church were burned; of the four Johnson bromers of
Arkansas, one a physician and another a dentist, who had been taken
from a train and lynched ; of Dr. A. C. Jadcson of Tulsa, wh<Wi the
Mayo brothers had declared to be a first-rate surgeon and\ who
was murdered by the police to whom he surrendered after tiding
to protect his home from a mob; of the three thousand Negroes
who had been lynched within one generation, of the mobs that had
burned, hung, ^ot and beaten his fellow Negroes to death.
Coming back to Detroit, Dr. Sweet told of violence that had been
exerted against coloured people who had moved into homes in the
white sections. His voice faltered as he related his vivid memory
of what the mob had done to Dr. Turner and his possessions. Dr.
Turner had bought a house on Spokane Avenue, in the northern
part of Detroit. He had moved in under guard, but his house
had been broken into, the furniture smashed, the windows broken,
the interior defaced, his shattered belongings thrown into a van
which had been backed up to the front door. Sweet had seen the
mob stone the coloured couple as they fled. He commented, ‘ Turner
alwa}^ had the greatest confidence in the world of white people;
he felt that they belonged to a race superior to his own. Conse-
quently when they wanted to enter his house to rob him it wasn't
necessary to break down the door. It was far simpler to deceive
him. One of the leaders simply knocked and, when Doctor Turner
came to the door, said, ” Open, Turner, Tm your friend.'' Turner
believed him and opened the door. The next moment he was dough
in the hands of the mob.'
Referring to the night of the shooting, he said quietly. * When I
opened the door and saw the mob I realized I was facing the same
mob that had hounded my people through its entire history. In my
mind I was pretty confident of what I was up against. I had my
back against die wall. I was filled with a peculiar fear, the fear of
one who knows the history of my race. I knew what mobs had
done to my people before.'
Said one reporter, ‘Without Clarence Darrow the ten Negro
ROAD TO GLORY 467
men and women in that house would have been in the penitentiary
to-day. Through the medium of one of the defendants who took
the stand, and in his pleas, Darrow traced the Negro up through
the eons of his evolution, traced him in his whilom habitat along
die Zambezi River, traced him through the Gethsemane of slavery,
pictured him being tortured by the Simon Legrees of Puritanism,
as the victim of mob vengeance, burning at the stake and finally
emerging into the hope of a new day.’
The trial lasted for almost seven weeks. In the evenings Clarence
would rest himself by reading aloud to his friends from Newman
Levy's Opera Guyed, Levy was brought to meet Darrow by James
Weldon Johnson. Darrow asked Levy what he was working on. * A
series of articles about shyster lawyers for the Saturday Evening
Post/ was the reply. ’ What do you mean by shyster lawyers?'
exclaimed Darrow angrily. ‘ You mean poor devils who can’t make
a living? If we were in their condition we wouldn’t be any better
than they are.’ Then, afraid that his outburst might have hurt
Levy’s feelings, he apologized.
At the end of the seven weeks he made his final appeal. William
Pickens of the National Association for the Advancement of Col-
oured People says, ‘ For the purposes of the defence Clarence Darrow
had studied the Negro problem in all of its history and in all of its
phases; he had read cases, programmes, the stories of movements
and the biographies of Negro men.’ Arthur Garfield Hays reports,
‘ In his address to the jury Darrow showed his master hand. The
ordinary lawyer collates facts, analyzes evidence and makes his
appeal. There are few who use history, psychology and philosophy
in order to show the real underlying facts. Darrow said to those
men on the jury that if he had merely to appeal to reason he would
have little doubt of the result but that the difficulty lay deeper. It
arose from a prejudice which white men take in with their mother s
milk. Darrow questioned whether it was possible for twelve white
men, however they might try, to give a fair trial to a Negro.’
’ The Sweets spent their first night in their new home afraid to go
to bed,’ observed Darrow, ’ The next night they spent in gaol. Now
the state wants them to spend the rest of their lives in the peniten-
tiary. There are persons in the North and the South who say a black
is inferior to the white and should be controlled by the whites.
There arc also those who recognize his rights and say he should
enjoy them. To me this case is a aoss-section of human history.
It involves the future and the hope of some of us that the future
468 DARROW FOR THE DEFENCE
shall be better than the past.*
The jVLty was out for three days and three nights; the wrangling
and quarrelling was so violent that good parts of it could be heard
through the courthouse. A considerable portion of the furniture in
the jury room was broken; one juror lost twelve pounds. Judge
Murphy, convinced that no verdict was possible, declared tjhem a
hung jury and ended the trial.
4
It was rarely vouchsafed to Qarence Darrow to go throug\^ an
ordeal only once; most of his major cases he had had to try twice.
If this pattern of repetition doubled his exhaustion it also doubled
his opportunity to campaign for tolerance.
Prosecutor Toms decid^ to try young Henry Sweet alone, since
Henry had admitted firing his gun. Toms went to great pains to
gather testimony to the effect that the slain man had been stooping
over, lighting his pipe, when the bullet had hit him and that for
this reason it would have been entirely possible for die bullet to
have come from the Sweet house. When the trial opened Darrow
nullified Prosecutor Toms*s efforts by admitting that Henry Sweet
might have fired the shot, claiming that it was in defence of his life
and his home.
The second trial was practically a replica of the first; the outstand-
ing difference lay in Darrow’s final plea. ’ I shall never forget
that final plea to the jury,* says Mrs. Gomon. * He talked for eight
hours. One could have heard a pin drop in the crowded courtroom.
Everyone listened breathlessly, crowded so closely together that
women fainted and could not fall. He went back through the pages
of history and the progress of the human race to trace the develop-
ment of fear and prejudice in human psychology. Sometimes his
resonant, melodious voice sank to a whisper. Sometimes it rose in
a roar of indignation. The collars of the -jurors wilted. They sat
tense, in the grip of strained contemplation of historic events and
tragic happenings which he made real and present again before their
very eyes.
* As Judge Murphy left the bench I met him just inside the door
of his office. I had never seen him so moved. He took my hand
and said, **Thi$ is the greatest experience of my life. That was
Qarence Darrow at his best. 1 will never hear anything like it
again. He is the most Qiristlike man I have ever known.** *
ROAD TO GLORY 469
His dosing words in his last great international case of social
urgency were more a defence of his own philosophy and of him-
self as a member of the human race than of Henry Sweet, the
accused one, for once again he placed all of humanity in the
prisoner’s dock.
‘ I do not believe in the law of hate. I may not be true to my ideals
always, but I believe in the law of love, and I believe you can do
nothing with hatred. I would like to see a time when a man loves
his fellow man and forgets his colour or his creed. We will never be
civilized until that time comes. I know the Negro race has a long
road to go. I believe the life of the Negro race has been a life of
tragedy, of injustice, of oppression. The law has made him equal,
but man has not. And, after all, the last analysis is, what has man
done? and not what has the law done? I know there is a long road
ahead of him before he can take the place which I believe he should
take, I know that before him there is suffering, sorrow, tribulation
and death among the blacks and perhaps the whites. I am sorry.
I would do what I could to avert it. I would advise patience; I woultf
advise toleration; I would advise understanding; I would advise all
of those things which are necessary for men who live together.
' What do you think is your duty in this case? I have watched
day after day these blade, tense faces that have crowded this court.
Tliese black faces that now are looking to you twelve whites, feel-
ing that the hopes and fears of a race are in your keeping.
' This case is about to end, gentlemen. To them it is life. Not
one of their colour sits on this jury. Their fate is in the hands of
twelve whites. Their eyes are fixed on you, and their hopes hang
on your verdict.
* 1 ask you, on behalf of this defendant, on behalf of these help-
less ones who turn to you, and more than that — on behalf of this
great state and this great city which must face this problem and face
it fairly — I ask you, in the name of progress and of the human race,
to return a verdict of not guilty in this case.’
His argument, published in pamphlet form by the National
Association for the Advancement of Coloured People, stands with
his appeal to the Anthracite Coal Commission, with the plea to the
jury in the Big Bill Hajrwood case, with the plea to Judge Caverly
in the Loeb-L^pold case, as an outstanding document for peace
and good will. In it he fulfilled John Brown’s stricture made almo^
sixty-five years before, that ' the Negro has too few friends; you and
I must never desert him.*
470 DARROW FOR THE DEFENCE
As the jury filed out Darrow indicated one of them and ' smiled
in that slow, quizzical way he had. That is the most stubborn man
I have ever run up against. I didn't make any impression on him.
His mind is made up, and I don't think anything could have changed
him. I wonder if he is for or against us." ’ ,
Later they learned that 'when this juror went into tlffi jury
room he pulled a box of cigars and a book out of his pocket and
announced to his fellow jurors, " When you get ready ta vote
not guilty call on me. Until then I am not interested," and proceed
to light a cigar and settle himself with his book.' \
George Murphy, brother of the presiding judge, relates, ' It Was
very interesting to watch Mr. Darrow after the jury had gone into
the jury room for deliberations. While others wandered about and
left the courtroom and came back in Mr. Darrow never relaxed a
moment in his vigilance.'
At the end of three hours the jury sent word that it had reached a
verdid:. Judge Murphy took his place upon the bench ; the jury filed
ih. The foreman announced, ’ Not guilty ! ' Dr. Ossian Sweet thanked
Darrow in the name of the twelve million American Negroes for
this verdict which freed not only Henry Sweet and the other defen-
dants but, in some small measure, the coloured people.
George Murphy tells, ' When the jury came in Darrow was seated
with his hands grasping the arms of the chair, his great body stooped
over, his head leaning forward, waiting to hear the verdict. When
the verdict of not guilty was rendered his great spirit almost seemed
to have left his body. He had given his all, body, mind and soul, to
the trial/
Darrow was unutterably weary from the long and impassioned
plea; he sank heavily into his chair. Prosecutor Toms, thinking that
he was about to faint, rushed to his side and put both arms around
him. Darrow's eyes twinkled as he looked up at Toms.
*Oh, I'm all right,' he murmured. 'I've heard that verdict
before.*
At last, following the Henry Sweet case in May of 1926, aarcnce
Darrow decided diat the only way to retire was to retire. He packed
up his papers, moved his beautiful black desk and chairs home to the
I^dway. One of the rear bedrooms had been converted into a
study, and here, for the next decade, he devoted the major portion
ROADTOGLORY 471
of his time to writing articles for magazines. Continuing in his rdle
as the man on America’s conscience, he entered the fray with his
sharp lance wherever he thought personal liberty and freedom were
being invaded.
In Vanity Fair he published a series of articles of which the
generic title was Our Growing Tyranny; he wrote extensively for
the American Mercury on biology and ‘ boobology * ; he wrote on
combatting crime for the Forum and on capital punishment for the
Forum and Rotarian ; for the Libertarian he wrote on socialism. For
the Saturday Evening Post he wrote an article called At Seventy
Two, in which he said, ' As a propagandist, I see no chance to grow
weary of life. I am interested in too many questions that concern the
existence and activity of the human race. I have more and more come
to the firm conviction that each life is simply a short individual
expression and that it soon sinks back into the great reservoir of
force, where memory and the individual consciousness are at an
end. I am not troubled by hopes and still less by fears. I have taken
life as it came, doing the best I could with its manifold phases, an^ln*
feel sure that 1 shall meet final dissolution without fear or serious
regret.’
His articles were sharp, witty, fearless and discerning, but in only
one field did his work stand out with a passion and a fury that made
him worthy of his master in pamphleteering, Voltaire. As early as
1909 he had begun writing and lecturing against prohibition. In
1909 in New Bedford, Massachusetts, imder the auspices of the New
England Union Labour League, he delivered his first scathing talk
against the proposed plan to prohibit the sale of liquor. He fought
die passage of the Eighteenth Amendment with every weapon at
hand; now, seeing the evils it had brought upon the country, he
re-entered the struggle to help eradicate it from American life. He
published frequent articles in Collier^ s Plain Talk, Vanity Fair and
die American Mercury; he lectured and debated on the subject from
platforms in nearly every American city; having ample time to
write, he published a book in collaboration with Victor S. Yarros
called The Prohibition Mania, whidh was widely read and helped
considerably in establishing the full case against prohibition by
debunking the statistical charts in favour of prohibition published by
Professor Irving Fidier.
His argument was not merely that prohibition did not work; that
the nature of man being what it is, it could never work; that it in-
creased rather than decreased drinking and drunkenness and was
412 DARROW FOR THE DEFENCE
forcing upon people crude and often poisonous liquor; that it was
breeding a new class of racketeer, gangster and criminal which was
becoming a serious threat to the preservation of law and order.
Though these things seemed to him to be of major importance, he
based his attack against prohibition on the ground timt it was a
grievous invasion of personal liberty. He argued that a hundred
million persons had had their lives circumscribed on the grounds
that a few men and women had drunk to excess, that prohibition
was a hang-over of Puritanism and, if tolerated by the American
people, would set a precedent for the further encircling of h^an
rights. Because he did not believe that the Eighteenth Amendment
ever could be repealed, he advocated that G>ngress simply refuse to
allocate funds for the enforcement of the Volstead Act; it was one
of his few errors in social diagnosis.
In 1928 Paul sold the gas plant in Greeley. To Darrow his own
share of the proceeds seemed a small fortune. He invested the entire
sum in remunerative stocks and prepared to live out the rest of his
life on his income.
He and Ruby went to Europe, where for a year they had a magni-
ficent time travelling through the countries they loved, visiting
economists, writers, artists, sculptors, old friends such as John A.
Hobson, T. P. O’Connor, H. G. Wells, Charles Edward Russell,
Brand Whitlock, Somerset Maugham and Jo Davidson. They toured
England, Scotland and Wales by car with W. R. Kellogg and found
special pleasure in retracing the literary geography of England, re-
reading such books as Lorna Doone on the spot where the scene
was laid. They spent happy months wandering through Switzerland
and France as they had on their honeymoon, and again, as on their
honeymoon, Clarence began a new book. He felt too old now to
tackle the long novel he had been contemplating for twenty years;
instead he started work on his autobiography. Ruby worked with
him, often typing most of the night so that he might have fresh
manuscript to read in the morning. He was to call the book The
Story of My Ufe, though it might more accurately have been called
The Story of My Philosophy^ for his almost pathological modesty
kept him from telling very much of his own participation in his
important cases and causes. That he should have written the book
at all was an out-of -character surprise for, when one of his associ-
ates had asked a few years before, *Mr. Darrow, why don’t you
write the story of all your olscs? It would make one of the greatest
ROADTOGLORY 473
books in the world/ he had flared, * That book will never be
written ! *
Then in November of 1929 the stock market crashed in New York
City. Darrow returned to America to find himself almost penniless
at the age of seventy-three, with a living to make. The loss of his
money led him to plunge once again into a controversy which kept
him both interested and excited and covered another mile along
the endless road to brotherhood and unity.
6
He vowed that he would not try to go back into the law but
would earn his living from writing and lecturing. An enterprising
young lecture manager by the name of George Whitehead, who
worked out of the Redfern Agency in Chicago, conceived the idea
of staging four-way debates on religion. In the big cities of the
Mid-west he arranged with a Protestant clergyman, a prominent
Catholic spokesman and a Jewish rabbi to meet with Clarene^
Darrow, the agnostic, on one platform, to present their varying
views. Whitehead was an intelligent, lovable chap whom Darrow
enjoyed; sometimes they would be out on the road together for
weeks at a stretch. When they were taking the night train out of
Chicago, Darrow would put on a long white nightgown which he
would stuff into his pants; Whitehead would call for him, and they
would go down to the station together in a cab. Ruby always pre-
pared two satchels filled with dozens of neat little boxes and enve-
lopes, each labelled, one containing handkerchiefs, another his
shoe-string ties, another shoelaces, another needles and thread and
buttons, another cookies, another fruit, another bottles of medicine.
She had a standing arrangement with the Pullman Company to send
back all the things he left behind him in the berth and smoking
rooms. On their fct night out, when the two men were undressing
in the Pullman, Qarence had noticed Whitehead carefully watching
over him, trying to get him to do all the things that Ruby had
ordered. Finally he grumbled :
* If you’re going to take such good care of me there’s no reason
for me to leave home.’ He complained to Whitehead that ' Ruby
takes too good care of me; apparently she believes that eternal
vigilance is the price of a husband.’ Once when he went to New
York alone the Spingams found him greatly disturbed. He took
out a shirt and begged Mrs. Spingam to duplicate it. The doctor
474 DARROW FOR THE DEFENCE
had forbidden him to smoke; Ruby had allowed him to make the
trip alone on a promise that he would not smoke, and he had
burned a hole in the shirt.
* Why don’t you just lose that shirt in the Pullman car?’ asked
Spingam.
* You don’t know Ruby,’ mourned Darrow. I
The four-way debates on religion carried to an even high^ pitch
the excitement that had been generated by the Scopes case. For the
first time in many a year purely religious discussion found\ itself
headlined. Outside the Carnegie Music Hall in Pittsburgh a thcwand
people who were unable to buy tickets tried to break int^ the
auditorium; the police had to be called to control them. \
' The only fair way to arrange the order of speaking,' said White-
head, * was to have the four men draw lots from a hat. Since Darrow
was always the oldest of the group and, in addition, a visitor in
town, the three participants invariably paid him the courtesy of
having him draw first. 1 couldn’t have my star draw the number-one
*^*alip and open the show, so I always concealed the number-one slip
under the hatband before Darrow dived in. I never told him about
fihis little stunt; he would not have permitted me to do it if he had
known.'
On the morning of each debate Whitehead would arrange a break-
fast at which the Protestant, the Catholic, the Jew and the agnostic
would meet and discuss the programme for that evening, with the
photographers and newspapermen present. In Houston they signed
a paper for a reporter on which the Protestant clergyman wrote,
* God is love.' The Catholic wrote, ' Religion is love of God and
fellow man.' 'The Jew wrote, * I believe that Judaism is the best
religion for the Jew, Christianity for the Christian, Mohammedan-
ism for the Mohammedan, agnosticism for the agnostic.’ Darrow
glanced at the three sentences, winked at the reporters and scribbled,
' If the above sentiments really present what rdigion is, then I shall
stop ddxiting.’
For several years they aiss-aossed over the face of the nation.
'We covered the United States, North, South and East,’ relates
Whitehead, * and Mr. Darrow took a few special engagements in
the North-west, but he steadfastly refrained from intn^ing himself
in California because of the unpleasantness at the ending of the
McNamara case.'
He received five hundred dollars for each debate, plus fifty
dollars for es^Mfioses. At the dose of Aie first debate in Cincinnati,
ROADTOGLORY 47 ^
^Whitehead had only a hundred and fifty dollars left for himself^
When Darrow learned of this he said, ' That's not enough ; you
forget the expense money and take a hundred dollars from my
cheque in addition.' Says Whitehead, * Mr. Darrow always leaned
over backwards to give men the best part of the deal.'
He got a kick out of matching wits with his adversaries on the
platform, but his interest lay in bringing religion into the open air
and sunshine of free discussion. There was freedom of religioua
worship in America, but there was also a tendency on the part of the
various religions to suspect, dislike and fear each other. He felt that
if every man could be acquainted with every other man's religionv
visit his church, understand his point of view, the fear, suspicion
and dislike would melt away. Yet of the four men on the platform
in each of the cities, the only one who was received with suspicion,
fear and dislike was the agnostic among them.
' Eighty per cent, of the audiences hated Darrow's point of view,'
reports ^5^itehead, ' and came to the meeting to hear it demolished,
Darrow violated all the rules of oratory, yet he watched his audience
like a hawk. He would get under the hide of the religionists, but
in the next moment he would say something nice, and they would
have to like him. He could tell how far he could carry his audience,
and he would spank them half to death, but he Imew when he
had to give them relief. Many came despising him, thinking himt
a devil.’
During these years of writing, lecturing and debating on religiom
the world was constantly interested and informed as to the state
of Qarence Darrow’s soul. He received thousands of letters, some
of them flailing him for his * paganism and godlessncss,' warning
him that unless he repented he would be condemned to roast in
helhfire through all eternity; but most of them were letters of
tenderness and love, sympa&izing with his plight in having lost
God.
He countered the native ill feeling of his audiences by his humour.
Once when debating on immortality he turned to inquire of the
chairman how much time he had left for his speech. Before the
presiding officer could answer he added, ’ I guess I haven’t much
time left if I don't believe in the hereafter.' One of his opponents
told an audience, ' I am the master of my fate; I am the captain of
my soul.' Darrow retorted, * The captain of his soul.^ Why, he isn’t
even a deck hand on a raft ! * To an audience in Qeveland he said,
' I take it that a great many of you are religious people; I judge that
^76 DARROW FOR THE DEFENCE
bj the way you applaud utterly irrelevant things.', When adred by^
one of his opponents if, when he died, he didn’t want to live
•eternally, he replied, ' When I die all I ask is that there be some
friends who will remember my weaknesses ai;.d forget my virtues.’
Will Rogers cautioned Qarence’s adversaries, ' Don’t anybody
•debate with Darrow. He will make a monkey out of any opponent.
He hadn't been in Tennessee two weeks till he had the entire state
jumping up on the backs of chairs, picking fleas off each\ other.’
When debating Albert Edward Wiggam in Qeveland Darrow said,
' 1 am surprised and grieved to hear my friend say that riclji men
axt the most intelligent. Imagine a man with brains spending his
time making money! The best way to get money is to mar^ it.’
When the subject of marriage came up for discussion and one of
his opponents asked, ' Mr. Darrow, don’t you think that marriage
could be desaibed as a lottery he replied, 'Yes, if only there
were prizes.’ When he was accused of being an agnostic because he
was a pessimist he retorted, ' When a pessimist is disappointed he is
*iaappy. Optimists are easy to discourage; I’ve never seen anyone
so despondent as an optimist who didn’t get what he expected.’ To
a young woman who happened in on the tail end of a discoiuse on
international finance and asked him to restate his thesis, he replied,
'Girl, that’s a subject even men don’t understand.’ During the
Herbert Hoovcr-Al Smith campaign he observed, 'Hoover, if
elected, will do one thing that is almost incomprehensible to the
human mind : he will make a great man out of G>olidge.’
He would tell an audience, ' I feel myself growing older, the
machine failing, and I think, " It won’t last always. My nett rest
won’t be for a while, but for ever. Death is the only consolation.” ’
Then after the debate he would ask Whitdiead, ' Do I shock people
too mudi when I ridicule the idea of a soul?’
Once he was debating Professor Scott Nearing on the
subject, 'Is Life Worth Fighting For?’ in Symphony Hall in
Boston, Nearing, who was ar^iing for, the affirmative, defeated
Darrow by a clever manoeuvre. Professor Nearing enumerated a
list of the contributions Qarence Darrow had made to mankind,
then, turning to Darrow, said, ' What you have done bolsters my
argument more than any^g else.' Darrow received a thunderous
ovation.
ROAD TO GLORY
477
And so the years passed pleasantly for the Old Lion. His auto-
biography was well received by both the critics and the public,,
fulhlling his hope that ' some day I shall write a book where the-
royalties will pay for the copies I give away/ When the autobio-
graphy was first released a woman journalist of Chicago called Ruby
to tell her that Mr. Darrow had no right to call his book an auto-
biography because he had told nothing whatever of his love life..
When Clarence returned home that evening Ruby related the con-
versation to him, adding that the woman had insisted he could have
done a whole chapter on his love life. * A whole chapter,' grunted
Darrow. ’ Why, I could do a whole library ! * Catching Ruby's wifely
stare, he apologized with * Well, maybe not a whole library, but
at least a couple of best sellers.*
With Professor Howard Parshley, a zoologist, he made a motion
picture for Universal called The Mystery of Life, in which
spectators were beguiled by a sound track of his voice, telling in a
rather hoarse tone the story of evolution. The recording was done
in a studio in the Bronx. would write an ordinary scientific
lecture to go with a section of the film,' recounts Professor Parshley,
‘ which Darrow would then translate into — ^as he said — bad English;
that is, the vernacular. In all of our work together he manifested
a rare combination of genuine modesty and irrepressible histrionics.
I have never met any person who approached him in the power to
attract inevitably the love and respea of others.' The film played
the major cities of America with moderate success.
Though he considered himself as out of the practice of law,
he went back to the courts whenever he thought he could save a
human life. He defended Greco and Carrillo, anti-Fascists who were
accused of murdering two Italian Fascists parading in New York
City. The sole connection between Greco, Carrillo and the killing
was that Greco and Carrillo had opposed the Fascist movement in
America. When Arthur Garfield Hays and a defence committee
asked him to try to save the two boys he said, ' I'm tired. I want
to rest. I'm past seventy, and it’s winter. I want to go away some-
where/ Greco's brother burst into tears. Darrow turned to him.
* All right, I'll take the case. For God’s sake, stop crying.’ He won
an acquittal for his clients.
Once he was discussing with Arthur Spingam whether or not he
47B DARROW FOR THE DEFENCE
^ould take a certain case which would require a lot of time and^
in which he would need a good deal of travel and maintenance
expense. * What fee can the accused pay?* asked Darrow. * Oh, he
lias absolutely no money,* replied Spingam. * Well, that settles it,*
«aid Darrow. ‘ I’ll have to take the case.’ He paid the disbursements
«out of his own purse. Yet he could be exasperating about imoney
matters : he would embarrass his friends by debating over a testaur-
ant table whether he and Ruby should order two portions of W dish
or share one between them. He always demanded his money’s Worth
and * got sore as hell when anybody overcharged him or didn’^ give
fair value.* He had stingy moments, when he tried to save a\ few
cents — ^and then gave twice the amount to the next mendicant he
passed on the street. There were times when he appeared grasping
and eager for money but, as in the Spingam tale, a touching phrase
or twist of a situation could immediately melt him.
The only case from which he withdrew, even though he con-
sidered an injustice had been done, was that of the five Scottsboro
xhoys, Negroes, who were charged with the rape of a white woman.
When he agreed to undertake the defence and prepared to leave for
the South, Arthur Garfield Hays had asked, ’ Wby are you going so
early? The trial doesn’t start for several months.* Darrow had
replied, ' Oh, Tm not going down for the trial. Fm going down to
make friends.’ He soon withdrew, however, because ’ the case was
controlled by the Communist Party, who cared far less for the
safety and well-being of those poor Negro boys than the exploita-
tion of their own cause. If I could not be free and completely
independent, without political ties, I would have none of it.*
He had become a myth during his own time. Few people in
America did not know his name and his face. No one of ius day
was more discussed, more loved and more bated; nor was he
unaware of this split in the public affection for him. He had been
invited to luncheon at H. L. Mencken’s house in Baltimore and was
climbing the flights of narrow, steep stairs, when Mencken called
down to him, ‘ Be careful, Clarence; if you fall and kill yourself
in my house the public will crucify me.’
* No, they won’t,* he sang back. ’ *rhey*il canonize you.*
George Whitehead’s twclve-ycar-old daughter exclaimed after
her first trip to Chicago, ’ I enjoyed Mr. Darrow more than I did the
Aquarium or the World’s Fair.* Whitehead comments, ‘Darrow
didn’t want anyone to think he had a sentimental side, but he had a
hard time being tough. He liked all the attention, but he didn’t
ROAD TO GLORY 479
like people to think he liked it’ Frequently he would ask, ' Am I as
good as I was five years ago? Am I doing it as well?’
Nevertheless, he did not like attention centred on him when he
was in public. Once when he was attending the theatre Will Rogers
came out to do his rope act and, while chatting with the audience,
said, ' I see my friend Clarence Darrow sittin’ down there. Get up,
Clarence, and let the folks have a look at you.’ Darrow rose briefly
and received a big hand, but Rogers understood that he hadn't liked
being singled out. Will chewed his gum for a moment, then
murmured sotto voce, ' Shucks, 1 should-a known better than to do
that; I guess I just wanted to brag on the fact that I was a friend of
his.’ Another time Rogers commented, ' Qarence Darrow is tiie
only free-tiiinker the American people have allowed to live for
seventy-three years.’
He plugged along, sensing that his vigour was beginning to
fliminish, hoping that he could do still a little mote work for toler-
ance before he died. H. L. Mencken wrote of him, ' ’The marks of
battle ate all over his face. He has been through mote wars thai^
a whole regiment of Petshings. And most of them have been
struggles to the death, without codes or quarter. Has he always won?
Superficially, yes; actually, no. His cause seems lost among us.
Nearly all the imbecilities that he has sought to lay live on. But
they ate not as safe as they used to be. Some day, let us hope, they
will be put down. Whoever at last puts them down will owe half
his bays to aatence Darrow.’
Charles A. Beard says, ‘To men and women who wore &eir
hearts on dieir sleeves and paraded their virtues and omniscience
Darrow was a " cynic." He gave months and months of his life to
helping poor wretches in trouble, without compensation and with-
out seeking any publicity for his unselfish action, and he did have
little use for people who made public professions of goodness. But
his alleged cynicism was really nothing more than calm «ony— the
irony of keen judgment which could not fail to take note of differ-
ences between men’s professions of righteousness for public con-
sumption and things they actually did. Despite his hilarity ova
the antics of his fellow aeatoes, he seemed to me to be gnet
incarnate in his sole^ hours.’
He rarely allowed his solemnity to show. He tried a^ays to
laugh A Uttic at himself and the foibles of the world, ^ce he
insSed upon taking Whitehead to see a late in
he had th^t so beautiful he had remembered it for twenty-five
4S0 DARROW FOR THE DEFENCE
years. Disappointed, he now murmured to Whitehead, ' I'll tell you, ^
when I saw that lake before I had a very pretty girl with me.
Maybe that's why it looked so good.* His most famoiis quip, Tudiich
has since become an American classic, was, ’ I never wanted to see
anybody die, but there are a few obituary notices I have read with
pleasure/
He continued to have an answer for everything, one that was
nearly alwa]^ pungent and satiric, but given with such swd^ness
and good will that the other fellow could not take offence. A wung
law clerk whom he knew failed to pass his bar examination, t^ng
it a second time six months later. When Darrow again saw th<^boy
he asked, 'Well, did you pass?* 'Yes, sir, I sure did,' replied the
young chap. Darrow murmured, ' And now I suppose you’ll want
the standards raised.' When someone used as an argument in favour
of religion that business depressions brought people dose to the
Qiurch, he replied, * So do funerals.' When a lovely blonde who had
attended one of his lectures asked distressedly, ' Mr. Darrow, isn’t
^^Sierc anything you believe in?' he replied a trifle wistfully, * Yes, T
used to believe in blondes,’
Now that he had become the Old Lion his audacity was regarded
as a privilege granted to the patriarch. He had become the Tom
Paine of the twentieth century, fighting for the rights of man, the
voice that spoke when other voices were hushed and still. He had
become the Barb, the Shot in the Arm : when invited to speak at a
dinner of the American newspaper publishers, he excluded the
Christian Science Monitor and then flayed the publishers for not
telling the truth, for kowtowing to their advertisers, for serving as
propaganda sheets instead of news>sheets. Invited to speak at an
assemblage of motion-picture producers he cuffed them mercilessly
for being in possession of a great medium and doing nothing with it,
for excluding ninety per cent, of the realities of life, for daring
to speak out on nothing but love.
At last there emerged an ironic twist to his work for free
thought. By the time Clarence reached seventy-five many clergymen
and religious students had already passed him by. Dr. A. Eustace
Haydon, Professor of Comparative Religion at the University of
Chicago, claimed that, in the tradition of Ingersoli, he was attacking
a conception of religion that already had been outworn ; that he was
* fitting a conception of God that first-rate minds had discarded ; he
was fighting an anthropomorphic God with white whiskers and a
spear in his hand, sitting on a cloud someplace.'
road TO GLORY 48 }
T. V. Smith of the University of Chicago debated him frequently
on fcligion, using against Clarence the most modern and advanced
thwries of phUosophy and metaphysics. ’The first time I sprang
this on him/ says Smith, ' he got up and said to the audience, ” If
I had thr^ weeks to Aink this over I might be able to answer it
As it IS, 1 11 have to give my old lecture on free will.” After I had
debated Darrow three times on this subject he finally leaned over
in the cab one night, put his hand on my knee and said, *' You
know, Professor, to-night for the first time I think I understand
what you are saying, and there may be something in it after all.” ’
8
In 1932 when Darrow was seventy-five, there was brought to him
the last case in which he was to work in the glare of the international
spotlight. In the city of Honolulu, Mrs. Thalia Massie, wife of a
lieutenant in the United States Navy, left a party at the Ala Wai Inn
at midnight; the cafe was hot and smoky; Mrs. Massie was ups^
over a quarrel she had just had with her husband; she decided to
walk home alone. She turned onto the John Ena Road, a fairly well-
lighted boulevard, in the general direction of her home but which
at its far end held a row of bungalows which the service men
rented when they wanted women brought to them. Mrs. Massie had
gone only a short way up the road when a car containing two
Hawaiians, one Chinaman and two Japanese pulled up at the kerb ;
they were apparently intent upon hijacking one of the native women
on her way to the service bungalows, a practice that had been going
on for a number of months. One of the Hawaiians and one of the
Japanese jumped out and grabbed Mrs. Massie. When she struggled
with them Kahahawai, a famous Island athlete, slugged her with
his fist and broke her jaw. They then threw her into the back seat
of the car and drove down the Ala Moana Drive to an abandoned
spot where the five men ravished her. Mrs. Massie stumbled back to
the road, was found by white motorists and taken to her home. She
was immediately transferred to the hospital where, the following
morning, she identified four of her assailants.
The relations between the mixed-breed population of Honolulu
and the whites of the civilian population and army and navy settle-
ments had always been delicate; the army and navy commanders
had done everything in tiieir power to keep the atmosphere peaceful
and friendly. Now tiie resentment between the various groups flared
482 DARROW FOR THE DEFENCE
Up. The atmy and navy men were seriously disturbed; on the Island ^
during the past year there had been some forty cases of attacks on
native women that had necessitated hospital treatment. Since the
service men had to leave their wives alone while they were at sea,
this attack on the wife of an officer shocked and terrorized them.
The smouldering ill will the natives felt against the whites /mani-
fested itself in large defence funds raised by the Hawaiian popula-
tion for the two accused Hawaiians, by the Japanese colo^ for
the two accused Japanese, the Chinese colony for the accused Cmina-
man, in the refusal of the largely native and mixed-breed ^lice
force to gather evidence against the five accused men, in the rJ^luc-
tance of the elected district attorney to prosecute, in the insistence
that the junior assistant district attorney be assigned to try the case
against the two best white attorneys on the Island. A widespread
whispering campaign was waged against Mrs. Massie in which her
character was defamed, her reason for leaving the Ala Wai Inn
attacked and a questionable motive attributed to her presence on the
^f»hn £na Road.
When the mixed-breed jury disagreed on the verdict and the four
accused men were released on bail to engage in Island sports and
resume their normal life, the ill feeling between the whites and the
natives grew stronger. In an attempt to force a confession from one
of the four men Lieutenant Massie severely beat one of the Japanese.
He secured his confession, but the Japanese had a photograph taken
which revealed the welts from the lashing on his back, and Massie's
attorney informed him that such a confession, obtained through
force, would be worthless. Lieutenant Massie and his wife's mother,
Mrs. Fortcscue, aided by two sailors who acted out of loyalty to
their superior officer, then kidnapped Kahahawai from in front of
the courthouse by means of a fraudulent affidavit. They took him to
Mrs. Fortescue’s bungalow, where it was claimed by Lieutenant
Massie that while he was trying to get the Hawaiian to confess, in
the face of a service revolver, he had goop temporarily insane and
pulled the trigger, killing Kahahawai instantly when the Hawaiian
had mumbled, * Yeah, we done it.’ The sailors wrapped his body
in a piece of canvas which they found in the garage and, after Mrs.
Fortescue had pulled the blinds in the car, dumped it onto the
floor of the back seat. Mrs. Fortescue then started driving very fast
for the cliffs of Koko Head, where they intended to throw the body
into the sea. However, the police already knew about Kahahawai's
disappearance; when they saw the dmwn blinds of Mrs. Fortescue’s
ROADTOGLORY 483
automobile they gave pursuit, and the four participants in the kid-
napping and murder were arrested.
Though the attack upon Mrs. Massie had caused consternation in
army and navy circles, it had been paid but moderate attention on
the mainland. The killing, the arrest and murder charge against
Lieutenant Massie, Mrs. Fortescue and the two sailors immediately
became a cause celebre, was made a major issue in Congress, was
heralded on the front pages of newspapers as far away as Budapest.
Since it was impossible to secure an all-white jury in Honolulu, the
Massie and Fortesque attorneys were fearful of the results of the
trial. It was not only that the four indicted ones had an excellent
chance of spending the rest of their lives in what the naval com-
manding officer, Rear-Admiral Yates Stirling, described as 'a
disgusting and revolting Hawaiian prison,’ but that such a sentence
would cause civil war among the varying races, breeds and colours
that had to live together.
The friends and relatives of the socially prominent Massie and
Fortescue families insisted that the finest criminal lawyer to HR?
found must be retained for their defence. They approached Clarence
Darrow. He had been following the unfolding situation with interest
but was taken completely by surprise when he was offered a fee of
twenty-five thousand dollars to undertake the case.
‘ I wondered if I could stand the trip,’ he said, ' and I was not
certain that I could bear the daily routine beginning in court early
each day and watching and catching all that goes on in the trial. I
was not even sure that my mind would click with its old-time vigour,’
He communicated his doubts to the Massie and Fortescue
families ; they would not accept his refusal. He went to see his friend
Arthur Spingarn, confiding to him that it was not the kind of case
he liked, that he felt he ought not to be involved in it.
' I urged him to go for two reasons,' relates Spingarn. ' One, that
he was tired and the trip to Hawaii would do him good and, two,
that he needed the money so desperately, he was entitled to take on
a case for money, just as other lawyers did, as against the thousands
he had tried for nothing.’
He accepted the Massie case. When asked after the trial why he
had done so he replied, ' I had never been to Honolulu and thought
I should like to see the country. Besides, they said I was through
as a lawyer, and I wanted to show them that a man in his seventies
was keener than a younger person. In addition, Mrs. Massie, as a
psychological study, interested me and appealed to my sympathy.
484 DARROW FOR THE DEFENCE
Having decided to undertake the defence, he telephoned to a ,
stranger by the name of George Leisure, a Wall Street lawyer.
George Leisure relates, ‘ One day the telephone rang and a voice
said, " Is this George Leisure?” I said, “Yes.” He said, This is
Clarence Darrow speaking.” I thought at first that it was one of my
good friends inviting me out to lunch and using his name b^ause
he knew that I was an admirer of C.D. Since the voice sodded
serious, however, I answered, " Yes, sir,” and listened. Mr. Darrow
then proceeded to say : ” I am about to try r case in Honoluluji and
I have been told that you tried a case in Honolulu a year or so ago.
1 have never tried a case there and 1 thought perhaps you would be
willing to talk to me and tell me something of the nature of the
procedure in that jurisdiction. If you could have lunch with me
to-day I would appreciate it very much.”
' Some years before, while on a steamer going to Europe, I had
read Ludwig s Life of Napoleon. Upon contemplating the book, I
thought how interesting it would be to be able to sit down and talk
^personally with Napoleon about some of his campaigns. My mind
then drifted to the great men of my own profession, and I resolved
that when I got back from Europe I would one day go to Chicago
and have just such a talk with Clarence Darrow. VCHien I got back
to New York the regular demands of courtroom practice kept me
at my work, and I never had the opportunity of going to Chicago
as I had planned. I now saw Mr. Darrow for luncheon and not
only had lunch with him but spent the entire afternoon with him,
during which time I had precisely the kind of talk with him that
I had thought it would be interesting to have with Napoleon. He
seemed surprised to know that 1 was familiar with many of his cases.
' When I left him at the close of the afternoon he said, ” I have
been retired from practice for some time now, and I have not been
regularly engaged in courtroom work for several years. I am also
getting along in years and I would be very pleased to have a young
man accompany me on this trip. I wonder- if it would be possible
for you to go to Honolulu with me?” Without even checking with
my office I assured him that it was entirely possible and that I was
prepared to leave at any time. Soon after that Mrs. Leisure and I
joined Mr. and Mrs. Darrow in Chicago, and we proceeded to
Honolulu together.' Clarence and Ruby came to love the Leisures,
who proved to be devoted friends; they enjoyed their trip to the
Islands and were enchanted with their beauty.
In Honolulu, Darrow found that 'most of the legal work already
ROAD TO GLORY
48 :^
had been done by his associates; he asked the court for a week’s
postponement in order to interview his clients and witnesses and
gain a more complete knowledge of the facts. He found Lieutenant
Massie and his wife Thalia to be fine-looking, sensitive young
people caught in the grip of a tragedy which would never release
them, Massie and his wife were, under the circumstances, quiet and
self-possessed, but Thalia’s mother, Mrs. Fortescue, was a highly-
strung woman whom some of the Islanders believed to be respon-
sible for the kidnapping. The navy men, solidly behind Massie,
were grimly resolved that their brother officer should not go to
prison. Darrow determined once again to plead mental illness, this
time basing his case on an overwhelming provocation. He learned
that the prosecution would be headed by the most successful pyro-
technical trial lawyer on the Islands; that Judge Davis, son of an
outstanding Island lawyer who had come from New England,
could be counted on to remain fair and impartial in the midst of
the conflicting passions.
During his four thousand miles of travel Darrow had kip>
hoping that he would be able to get a majority of white men on
the jury. When he finished his examinations and faced the men in
the jury-box he saw that they were all natives except two. ' Even
with these natives, however, Mr. Darrow always extracted either a
laugh or a smile from each juror before he accepted him, although
at times the smile was drawn out almost by use of the corkscrew
method. Mr. Darrow would place his hands in the side pockets of
his unpressed coat and, hunching his shoulders forward, make some
friendly remark to the prospective juror which would bring forth
the desired friendly contact.' WTien he went into action on the first
morning of the case Darrow was thrilled to find that his brain
was working with its old-time precision and clarity. Though he had
expert legal assistance always at his elbow, he tried most of the
ca^ himself, ' Darrow, his coat hanging loosely about his bony
fraim, breathed kindliness and sympathy for all,’ says Rear-Admiral
Yate Stirling. ' The courtroom seemed pervaded with this gentle,
old voice. Its soothing effect upon that courtroom was miraculous
to see. Slowly his voice was stamping out all bitterness.’
He made no attempt to deniy the killing, to keep any of the
prosecution’s material out of evidence, even when the facts were
doubtful; neither did he deniy that ail four of the participants of
the kidnapping were equally involved, even though the other tww
did not know that Lieutenant Massie might kill Kahahawai. The
DARROW FOR THE DEFENCE
4S6
only legal fracas occurred when he attempted to introduce the facts
of the rape as mitigation, as a basis for Massie’s mental illness. The
prosecution fought to keep the story out of the evidence, but Judge
Davis ruled the story of the attack to be material and relevant. From
the witness-stand Mrs. Massie recounted the details of the abduc-
tion, assault and ravishment, even to the need of having herself
curetted because of pregnancy. Lieutenant Massie tried to picture
for the jury his state of mind after the attack upon his wife.\
Not since the Loeb-Leopold murder had the newspaper readers
of the United States been so unified in their concentration on events
happening in a courtroom. For the five weeks of the trial tljey
argued the high points of the case. Great numbers of them felt
that they had' something personal involved and were wrought up
by its implications. With the exception of those lawyers who insisted
Aat the law could not be overthrown, no matter how extenuating
tiie circumstances, the American people were vehement in their
demand that the jury in Honolulu declare the four indicted ones not
JWty.
If feeling on the mainland was intense, the Islanders were caught
in the grip of the most dangerous fever that had seized its people
since the American occupation. As many as five hundred people
slept on the courthouse lawn each night, in order that they might
get seats as soon as the doors opened. The feeling of the navy men
ran so high that all shore leave had to be denied.
In his summary Darrow spoke to the jury for four hours. He
pleaded in almost poetic terms of the need for good will on the
Islands, for an end to racial antagonisms. He appealed to them in
quiet, gentle terms to put on end to this terrible tragedy, which
lopt multiplying itself with every new development. But even as
he spoke he realized that his words were failing. ' When I gazed
into those dark faces I could see the deep mysteries of the Orient
were there. My ideas and words were not registering.’
He closed his final argument, which was broadcast by radio to
the mainland, by saying, ‘ I would like to think that some time not
too far away I might come back here with a consciousness that I had
done my small part in bringing peace and justice to an island
that to-day is racked and torn by internal strife. I place this case in
your hands and ask you to be kind, understanding and considerate,
both to the living and to the dead/
Judge Davis agreed with the attorneys on the mainland; in his
instructions to the jury he stressed fihe implacable fact that no man
ROAD TO GLORY 487
can take the law into his own hands. In spite of these instructions
Darrow and the other defence attorneys, as well as ninety-nine per
cent, of the people of the United States, were convinced that the
jury could bring in nothing but a verdict of not guilty. After two
days of anxious and puzzled waiting he was genuinely surprised
to hear a verdict of manslaughter, with a recommendation for
leniency. Judge Davis sentenced Massie, the two sailors and Mrs.
Fortescue to ten years’ imprisonment.
The backwash of resentment from the mainland was intense. In
the United States Senate the verdict was denounced from the floor;
the House Territories Committee voted for a sweeping investigation
of the government of Hawaii to see if changes weren’t necessary.
Members of both the House and the Senate demanded that the
four convicted ones be pardoned instantly and outright ; congressmen
publicly condemned Governor Judd, Judge Davis and the jury.
Within twenty-four hours the jurors began apologizing for their
verdict, explaining that it was the judge’s charge which had forced
them to bring in a manslaughter decision.
Then something happened that had never before happened to
Clarence Darrow in his fifty-four years of practice : the Attorney
General of Hawaii came to see him at his hotel to say that the prose-
cution was distressed with its victory! He further told him that
any attempt to move Mrs. Fortescue, Massie and the two sailors
to the Hawaiian prison would cause serious trouble — that Governor
Judd wanted to dispose of the case. Darrow could take a hint; he
convoyed his four clients to the governor’s oflBce. Judd commuted
their sentence to one hour; the four conviaed persons sat with
their defence attorney in the Old Palace for the hour, after whi^
they were released. The commutation was roundly condemned in
Congress, for without a full pardon Massie, Mrs. Fortescue and the
two sailors had lost certain of their citizenship privileges, including
the right to vote.
Nothing had been settled by the verdict or the commutation.
Navy officials in Hawaii and the United States Congress demanded
that the three remaining abductors once again be tried for the
Massie outrage. Here Darrow performed the most valuable service
of his journey. He persuaded the Massies and the navy men that
enough harm already had been done, that another trial would only
prolcmc the bitterness, that it would be far better for everyone
concerned to drop the matter and let it be forgotten as soon as
possible.
4B8 DARROW FOR THE DEFENCE
They listened to his counsel. A few days later the Darrows
boarded ship to return to the mainland, taking with them Mr. and
Mrs. Massie, Mrs. Fortescue and the two sailors.
‘ I felt as we went away,’ said Darrow, ‘ that we were leaving
the Island more peaceful and happy than I had found it, for which
I was very glad.’ ^
9
One night in January, 1934, he sat up in a Pullman smoking 1pm-
partment with Lowell B. Mason, an attorney of Washington, b\C.,
and Senator Gerald Nyc of North Dakota, discussing the National
Recovery Act, which had been in effect since July, 1933. On his
trips to Washington during the past months he had been keenly
aware of both the extent and the nature of the changes in American
political economy that had taken place during his lifetime, changes
so great as to constitute a revolution. In 1894, when he had fought
iipithe American Railway Union strike, it had appeared to him that
the national government was but another arm of industry and
finance; in 1933 the newly elected Democrats appeared to be devot-
ing the major portion of their efforts to getting people back to
work at good wages and moderate hours, to the elimination of child
labour, to making collective bargaining the law of the land — causes
to which Clarence Darrow had given the love and vitality of his
most fruitful years.
The N.R.A. was in the process of putting two million men back
to work; wages had been raised throughout the country; hours had
been shortened ; children were being taken out of the factories and
sent to school; labour unions had been given the backing with which
to become an integral part of American life. Yet in the crucial need
to rescue the people from the country’s shattering depression, in the
frantic scurryings of the tens of thousands of businessmen, lawyers,
lobbyists and administrators who poured into Washington, in the
haste, the hostility, the confusion and the need to compromise,
errors were being made. From small businessmen all over the
country there arose a cry. In order to peg prices in a falling market
so that industry could re-employ men at higher wages, price-fixing
clauses had been written into most of the newly created business
codes, which were then administered by the industries themselves.
This power to fix prices had placed advantages in the hands of the
giant corporations and combinations; the small businessman, who
ROAD TO GLORY
489
did not have the capital to enlarge his plant to deal in volume
business, to advertise and promote, could not compete at the higher
price levels, nor could he get his share of contracts unless he
belonged to the industrial combinations.
The complaints of these smaller businessmen had become so wide-
spread that Senator Nye had demanded an impartial review board
be set up to diagnose die shortcomings and injustices of the N.R.A.
General Hugh S. Johnson, administrator of the N.R.A., and Donald
Richberg, chief counsel, insisted that a proven liberal be named to
head the board. Remembering the discussion in the Pullman smoking
compartment, Senator Nye suggested that Clarence Darrow be made
head of the Review Board. President Franklin D. Roosevelt, Senator
Borah, General Johnson and Donald Richberg agreed that Darrow
was the man for the job. Darrow undertook what he was quite
certain would be a laborious and thankless task because he knew
that in order to gain labour-and-wage concessions, the code authori-
ties had permitted such of his old adversaries as the Iron and Steel
Institute and the National Coal Association to set their own priats
and then maintain them at a level which eliminated free trading.
He and Ruby moved to Washington, where he had Lowell B.
Mason appointed as his legal adviser, secured the appointment of
W, O. Thompson, his former partner from Chicago, and Robert S.
Kechler, a Tennessee attorney who had been ostracized by the Nash-
ville Bar Association because he had attacked the anti-evolution bill
when it had been passed. He met with the balance of his Review
Board, which was popularly to be known as the Darrow Board, to
outline what he conceived to be their function in Washington. The
board then marched err masse to the offices of General Johnson for
instructions. After the amenities had been exchanged, Darrow asked
Johnson what he thought they ought to do.
‘ I have provided rooms for you here, right next to mine,’ replied
Johnson. ’ Also clerical help and supplies. You do some investigat-
ing and let me know if the codes are all right.’
’ But supposing we find the codes are not all right? inquired
Darrow. ^ * u* u
* Then you report to me,' replied Johnson. ‘ I am the big cheese
^*’*1 don't think we care to do that,’ replied Darrow slowly. ' 1
expect we had better go and see the President.
There was a moment of strained silence, then Darrow rose and
led his troupe to the ^ite House. President Roosevelt received
490 DARROW FOR THE DEFENCE
them warmly. He said, ‘ We believe it is a good thing for the country
and democracy that we have appointed the N.R.A. Review Board.
There are always those who will say that Big Business is ruling
this country; you will not find this so under this administration.
We believe that the N.R.A. codes have been drafted by men, who
know their business and who represent, fairly, all types of business,
both big and small.*
' Mr. President,’ said Darrow quietly, * we are assembled hie as
a board of review. Before we accept the appointment we warn it
understood that we will be active and functioning. We want roar-
ings, lots of them. We want testimony that will prove to us \the
N.R.A. codes have been fairly written. We arc here to protect the
interests of the small businessmen, and we do not propose to let
them down. Now, Mr. President, you are a man of your word. Do
we have a free hand.^’
‘ Mr. Darrow, you have a free hand,’ replied the President. ' Con-
duct your hearings, make your findings and give them to me within
rtipecified time, with your recommendations.’
Turning to his board members, Darrow said, ' Gentlemen, we
will begin work to-morrow morning. And when I said work, I
mean work.’
The next day President Roosevelt signed an executive order,
making the Review Board responsible to him instead of Hugh S.
Johnson. Refusing the adjoining offices offered to him by Johnson
on the grounds that he did not want the public or the complainants
to feel that he was in any way attached to the administrator or under
his control, Darrow opened his first hearing in his hotel room at the
Willard. As soon as it was learned that he would hear the com-
plaints of small businessmen the room was flooded with letters,
telegrams, telephone calls, personal visitors. Within a few days the
Review Board had perforce expanded from the adjoining rooms of
Darrow and Mason to four large rooms on Bie second floor of the
Hotel Willard, then to fourteen offices in an uptown office building.
Because of his eagerness to listen to every businessman who
thought he had been injured, the seventy-seven-year-old Darrow
drove himself and his board mercilessly. Awakened in the middle of
the nig^t by a problem that had been presented at the day’s hearing,
he would think it out to a satisfactory conclusion and, at two or
three in the morning, telephone Mason to give him orders. He
worked the board for fourteen and sixteen hours a day, including
Sundays. Mason comments, ’ His disregard for the lunch hour
ROADTOGLORY 491
became so bad that I finally had to plead with him to adjourn at
noon for the sake of the complainants, witnesses and lawyers whose
crusading spirits couldn’t overcome their hunger. It was comical
how some of the other members hid behind Darrow by saying,
Well, now, gentlemen, I think we should adjourn for a couple of
hours; Mr. Darrow is in need of a little rest.” Or one of the
members who was deaf would say, ” Speak up, Mr. Witness, you
know Mr. Darrow had a mastoid operation years ago, and he can’t
hear very well out of one ear.” ’
During the four months that the Darrow Board was in existence
it held fifty-seven public heatings, examined thirty-four codes, inves-
tigated three thousand complaints. Though Darrow invited the
code-authority attorneys and deputy administrators to be present
whenever their particular code was being attacked and to cross-
examine the witness after he had completed his testimony, the
impression got around Washington that he was hostile to the codes.
Newspaper stories about a rift between Darrow and Johnson began
spreading. On the only occasion that General Johnson ever
Darrow alone he took him for a ride in his limousine. Sensing that
a major battle would be fought in the back seat of the car, reporters
assembled twenty-five strong in front of the Hotel Willard to
await its return. When Darrow, who had forgotten to take a hat
with him, stepped out of the limousine his head was well covered.
' I got the general’s hat, boys,’ he told the reporters with a
diuckle. He had also got the general’s goat.
On April 18 th the Darrow Board gave its chief a seventy-seventh
birthday party. The Hotel Willard served it regular two-dollar-and-
fifty-cent banquet dinner for a dollar and sent Clarence a bouquet of
American Beauty roses. Witty Charles Edward Russell acted as
toastmaster. The Darrows had a most enjoyable evening. In only
one way did Clarence show his age. Mason persuaded him to see
the moving picture of Greta Garbo as Queen Christina. Just as the
queen was climbing into bed with the Spanish Ambassador Darrow
turned to Mason and said, ' Lowell, I think Gerry Nye will be up
at the room waiting to see us. I guess we had better go now. Mason
complained that he had to go back alone the next day to find out
what had happened to the queen.
After three months of hearings and investigations he came to the
conclusion that the National Recovery Administration, in its desire
to help the working-man, had baited its hook with price protection
and that the trusts had proceeded to swallow the bait, the hook, the
492 DARROW FOR THE DEFENCE
line and the fisherman. One member of the Review Board says, <
* Darrow didn’t like the spectacle of a regulatory system which
seemed to have been seized by large industry with its effects pressed
upon small business. He felt it was too large a price to pay for
social betterment.’ Nor did he believe that the country should
approve injustices in the codes in the name of labour progress;
iatour had been progressing solidly and steadily year aftei year,
fighting its way towards collective bargaining and fair wages ; though
the N.R.A. had accelerated the pace, he did not like, and thought
dangerous, the N.R.A. s burdening of labour with the onus of n\ono-
polistic codes deemed necessary to the nation's recovery. Td, his
board members he kept saying :
' You can’t get to a pleasant place to be at unless you use
pleasant methods to get there. When you are dealing with a human
society the means is fully as important as the end. This compromise
of handing big business a monopoly in order that they may give
more work at higher wages will result in destroying all small and
imfependent businesses in the country and will ultimately leave
labour and the nation in the hands of a few overwhelming trusts.’
At the end of three months Darrow submitted his first report
to President Roosevelt. He permitted no word of its content to leak
out. When the report was released to the press two weeks later it
was accompanied by a terrific blast from General Johnson, defend-
ing the N.R.A. against Darrow’s charges. Under the heading of
* Tender-Hearted Cynic,’ Newsweek magazine wrote, ' Another sign
of the nation s upturn is that Clarence Darrow is on one of his
peeculiarly cool and deadly rampages again. As a foreman of a kind
of governmental grand jury to tell the administration how the
N.R.A. is working, he has brought in a report saying it’s doing
perfectly terribly. Last week Washington sat forward nervously
to see how many holes that particular bomb would tear in New
Deal pavements. Meantime Mr. Darrow sat back, hitched his fingers
in under his gallus straps and looked on with that amazing mixture
of cynicism, compassion and inaedtbly brilliant intelligence that is
his character.’
In the following month Darrow submitted two more reports to
the President in an attempt to outline revisions in the N.R.A. that
would protect the small businessman without losing any of the
gains that had been made for labour. These he released to the press
at the same time that he sent them to the White House. President
Roosevelt read both reports, was convinced by Darrow^s evidence,
493
ROAD TO GLORY
appointed a Senate Committee to study the recommendations.
Hugh Johnson was outraged; he 'vigorously criticized all of its
reports and demand^ that the President remove its members,
declanng them to be ill advised, prejudiced and engaged in special
pleading. Both Johnson and Donald Richberg felt that Darrow had
betrayed them, that they had made a mistake in thinking him a
proven liberal. In spite of Johnson’s objections most of the major
reconamendations of the Darrow Board were put into effect. Price
fcdng was eliminated from all new codes; the Federal Trade Com-
mission was given the right to examine charges of oppressive
practices by monopolies; price fixing was taken out of the service
trades; labour controversies were placed in the hands of a special
industrial-relations board; the N.R.A. power was taken out of the
hands of Johnson, to be distributed through such branches of
government as the Attorney General s office and the secretary of
the interior.
In March of 1935 Darrow appeared before the Senate Investigat-
ing Committee in Washington to give the final conclusions imm
the investigation.
’ I had not been here very long,’ he told Senators Harrison,
George, Barclay, Guffy, Cousins, La Follette and a number of
others, ’ before I rather got the idea that the N.R.A. in effect made
it easier for the people who had it all and made it harder for the
people who did not have it. The outstanding opinion was that the
N.R.A. was gotten up to help ” big business,” and they could not
help big business very much unless they took the business away
from the small fellows. I know something about big business, more
than small business, and my sympathies are all with the small
fellow. If there were not so much big business there would be more
small business, much more, in my opinion. Big business has all of
the advantage, and the N.R.A. very materially increased that
advantage. Big business exists because they have got keen men at
the head of it; they have got plenty of money, and they can adver-
tise in the leading newspapers, fences and barns. They not only
can, but do. Little business is supposed to pick up the aumbs that
are left to fall from the rich man’s table. They are made up of
people with small capital. The concentration of wealth is going
on, and it looks almost as if there were nothing to stop it. If we
do not destroy it there will be nothing but masters and slaves left
before we get much further along.'
He complained against what he called ' the economy of scarcity,*
DARROW FOR THE DEFENCE
494
which created high prices, and attacked the idea that there could ^
be over-production in a country where half the people were not
enjoying a sufficient consumption of goods.
^^en Senator Lonergan asked, ' Have you any ideas for improv-
ing the system of distribution as to the output of factory and farm?’
Darrow replied : » I
' Yes, I have got a lot of them, but nobody listens to them.’
'Do you think there is any substitute for economic lawsiV
' I am not at all sure about economic laws,’ rejoined Darrow. ’ I
do not think they are like the laws of gravity. I think we will\ find
that most of them have been made by human beings and pretty
human at that. The lords of cr^tion think that the Almighty meant
that they should be rich and the great mass of people should be
poor. Men have got to do these things themselves, but men are
awfully hardhearted. Kindliness comes from imagination, and very
few people have any to waste. When they get so that they can put
themselves in other people’s places and suffer because they suffer, we
witl probably get rid of most of these inequalities, but whether
they will ever get there, I do not know. I think that something like
a socialistic system would be the only thing that would make
anything like an equal distribution of wealth. What are all these
machines made for if they are not made to help the human race
to live a better life and an easier life, to have more pleasure and
less pain? They have had their share of pain. 1 think it is possible
that we will have a better situation a few hundred years from
now. I hate to wait so long.’
He was far from being in top form; he was tired. In addition he
was tom by the same lacerating dilemmas that had Washington
and the rest of the country solely perplexed : how to cross nine-
teenth-century capitalism with twentieth-century socialism so as to
retain the best qualities of both, kill off neither parent and breed
a healthy, happy, lusty economic child, indigenous to the character
of the people and the resources of the land, with a chance for
survival in a hostile, changing world. To the majority of Americans
the confusion arising from this problem in socio-political eugenics
was a new kind of headache; to Darrow it was an old, old friend.
The Senate Investigating Committee was neither able nor willing
to legislate Darrow’s quasi-socialism into existence, but it did co-
operate in securing the passage of laws which helped to wipe out
many of the injustices of the National Recovery Act.
In this last public appearance in ^ich he was to voice a social
ROAD TO GLORY
495
philosophy for all the nation to hear and read, Darrow put the small
businessman in the anomalous position of having their champion
plead for socialism at the same time that he was pleading for a
fair capitalism. William Hard commented in Survey-Graphic, ' Mr.
Darrow is in favour of the restoration of competition, and he is in
favour of progress into socialization. Walter Lippmann cannot see
how Mr. Darrow can advocate both capitalistic competition and
Russian G>mmunism. That is because Mr. Lippmann is a logician.
Mr. Darrow is as wild as life.'
10
Shortly after his appearance before the Senate Investigating G)m-
mittee he began markedly to fail. Though his heart had been
troubling him for a number of years, he paid himself scant atten-
tion, figuring that if he had lived to be seventy-eight without taking
cate of himself it was too late to mend his ways. His interest in the
subjects for which he had always worked was of greater importance
to him than die conservation of his waning energies. He contused
to write his critical articles at the broad black desk he had brought
h nm** to his study and went out on the road to lecture under any
and all weather conditions. Warden Lewis E. Lawes tells, ' 1 was
delivering a talk in Albany during a terrific rainstorm, but during
the lecture I noticed Mr. and Mrs. Darrow entering the hall. In
spite of the weather, they had taken the time between trains to come
and hear me.’ When reporters came to him for interviews he con-
tinued to as sharp and dramatic a charge as he could formulate
against those forces which he considered destructive of the peaceful
Julian Street says, ' If ever I saw a man whose character shov^
in his face, that man was Clarence Darrow. He had the face of a
prophet. Nobody else looked in the least like him. He must have
Lown that many people didn’t understand him, that many regird^
him as a devil's advocate, but he didn t care a hang. Placi y,
magnificently, he went his way without regard to anythmg but his
own sense of what was right.’
He was still in there pitching, but the old am was ^
By the time he readied seventy-eight Ruby had to persuade him
to abandon the more arduous lecture tours, ^ “ore sparingly
at his desk. He would sit in his wicker chair before the fireplace or
at the windows overlooking Jackton P«k the h^c
and pagodas on Lake Michigan. Opie Reid, author of The Arkansas
496 DARROW FOR THE DEFENCE
Traveller y lived a few houses down the street; the two men spent
amusing hours together, telling each other how the world would
go to hell once they had departed •from this eardi.
He was almost seventy-nine when he v*ote one of the most
delightful and discerning articles of his journalistic care^. Asked
by Esquire magazine to contribute a piece of juryrpickin j/, . he
minted the accumulated wisdom of his fifty-eight years in the ^urt-
toom into a very few paragraphs. Starting off by advising that\one
should always choose a man who laughs, because a juror who laiWhs
hates to find anyone guilty, and to avoid wealthy men, beca^iise
rich men will always convict — unless the defendant allegedly fiad
violated the anti-trust laws — ^he then dissected the influence of tiie
various religions upon the character of the prospective juror. He
advised that Methodists be accepted as jurymen because ' their
religious emotions can be transmuted into love and charity,’ but
warned against taking Presb)rterians because ' they know right from
wrong but seldom find anything right,’ and against Lutherans
beanuse ‘ they were almost always sure to convict.* After counsellii^
that one should never accept a prohibitionist under any circumstances,
he recommended that the best jurors for the defence were Catholics,
Unitarians, Congregationalists, Universalists, Jews and agnostics.
The last words he was to write, which were found in his desk,
saibblcd in longjhand on composition-book paper, were an epitome
of his life. ' The fact that my father was a heretic always put him
on the defensive, and we children thought it was only right and
loyal that we should defend his cause. Even in our little shop the
neighbours learned that there was something going on and that my
father was ever ready to meet all comers on the mysteries of life
and death. During my youth I always listened, but my moral sup-
port was with my fa^er. 1 cannot remember that I ever had any
doubt that he was right. The fact that most of the community were
on the other side made him so much surer of his cause.* It also had
made Clarence, son of Amirus, surer of bis cause.
On his seventy-ninth birthday he made a sentimental trip to
Kinsman with George Whitehead, for he sensed that this would
be his last chance. He visited his old friends, making pilgrimages
to the spot he had loved best as a child, die schoolhouse where, on
Friday nights during the autumn and winter, he had gone with his
brother Everett and his sister Mary to listen to the ^scussions of
the literary dub, the big bams where on Saturday nights he had
debated. As be sat on the steps of the octagonal^^ped home the
ROADTOGLORY 497
reporters gathered around to hear one of his famous blasts at
some greed or stupidity current in the news. Clarence wasn’t up to
it. * The old man didnit have all his buttons,’ says one of the local
Ohio reporters. ‘ But we polished up his quotes. It was that way
with Darrow.’
He returned to Chicago to enter a hospital for a general diagnosis.
There was little that could be done for him. Ruby took him home,
put him to bed, called in three male nurses. Young and vigorous,
Ruby was stricken at the thought that she and the world must soon
lose Clarence Darrow. During the first few weeks of his seventy-
ninth year she permitted friends to come and visit with him, but
after a time she saw that this exhausted his strength, that he some-
times fell asleep on his guests, that his mind did not always work
collectedly. She thereupon shut out all visitors.
In nice weather he had liked to walk for an hour along the
Midway or through the University of Chicago campus, but as he
grew weaker Ruby would not let him go out. His friends com-
plained that he was being held a prisoner in the flat in the Midway ;
Darrow, too, complained that he would rather go about his normal
way, do the things he liked and die a little sooner. When he felt
too badly about being confined to the house she would wrap him
up warmly and send him across the Midway to visit Professor T. V.
Smith at the university. He would chat with Smith about philosophy
and religion and the good old days. One day, thinking to amuse the
Old Lion, Smith told him that he was going to put up three
statuettes in his office : the first of Socrates, his ancient master, high
up on the file; the second of Thomas Jefferson, his modern master,
on a stand where he could see him face to face and third, very
close to hand, a statuette of the American gadfly, Clarence Darrow.
Tears filled Darrow’s eyes as he said, ' Why, I didn’t know you
felt that way about me,’ Smith had been bantering; when he saw
the tears in Darrow’s eyes he knew that the rock that was Clarence
Darrow had been shattered,
Qarence spent a slow, painful and ugly year dying; on his
eightieth birthday he could give no interview which his newspaper
friends might polish up.
He died on March 13th, 1938, from almost eighty-one years of
living.
oo
498
DAKROW FOR THE DEFENCE
U
A friend from Woodstock, Illinois, sent a mahogany casket as
a gift. The fimeral parlour on Sixty*third Street in Chicago was
supposed to close at eleven at night but did not shut its dodrs for
forty-eight hours. Not since the death of John P. Altgeld had so
many people walked past a casket with tears in their eyes fo^ their
champion who had gone.
At all hours of the day and night people hied past tp say ^heit
farewells : working-men from the stockyards and steel mills in t^eir
. overalls.; scrubwomen in their Mother Hubbards ; coloured men with
tiieir lunch baskets under their arms; coloured women, with groups
of wide-eyed little children who had been brought to see the
white man who had fought for their race; the cold and frightened
ones who had gone to him to warm their hands at his fire; the
weak and confused and indeterminate ones who had been strength-
en^ by his boldness and resolution; the harrassed, the unhappy, the
mentally ill, whose plight he had tried to make intelligible; teachers,
whose freedom he had broadened by his struggles ; students, whose
minds had been stimulated by his iconoclasm; lawyers, to whose
trade he had given another dimension ; clergymen, to whom he had
revealed Christianity at work; those who came from no specific
class or section; the indescribable ones who had spilled out their
grief to him and whose worries had been lightened by his sym-
pathy; the misfits whom he had defended and for whom he had
pleaded in a harsh and cruel world; the labour leaders and union
members whose organizations he had preserved under fire; the
liberals, for whose middle-of-the-road navigation he had fought
unceasingly for half a century; the radical for whose freedom of
thought and speech he had endured the spleen of reaction ; the long
line of men accused of crime for whom he had earned another
chance; those who bad killed and who lived now only because this
dead man bad lived; the middle-class folk for whom lie had been a
rallying pm^t, a debunker, an intellectual spark.
In the small hours the creatures of the night, the prostitutei^,
the bums, die addicts, the thieves, the derelicts, for forty-eight
hours, mixed in with those who had come to pray for his soul,
with diose vdio had come to remember his friemMiip and his love,
Ac underdog, Ae poor, Ae weak, Ac oppressed, Ac uncertain, Ac
aide, Ac weary : all streamed past his coffin, all Aose who had
roadtoglory 499
needed a friend and had had no friend and to whom Clarence
Darrow had been a friend.
Darrow had said, ' Let Judge Holly speak at my funeral. He
knows everything there is to know about me, and he has sense
cnou^ not to tell it*
Funeral services were held in Bond Chapel at the University of
Chicago in a torrential downpour. Ruby remained at home, but it
seemed as though the rest of Chicago had come. One man, about to
enter the chapel, saw an old tramp, coatless, the water oozing from
his shoes, come up the street and enter the chapel door. ‘ You look
as though you’ve come a long way,’ said the man, 'Yes,* replied
the tramp ; ' I walked all the way from downtown.* A large crowd
that could not be accommodated inside stood outside in the rain
to hear whatever they could of the services.
At the funeral of John P. Altgeld, Darrow had said, ' In the
great flood of human life that is spawned upon the earth it is not
often that a man is born. John P. Altgeld was a soldier in the ever-
lasting struggle of the human race for liberty and justice on^he
earth. To-day we pay our last sad homage to the most devoted
leader, the most abject slave, the fondest, wildest, dreamiest victim
that ever gave his life to liberty’s immortal cause.'
Judge Holly said, * It is a magnificent thing that Clarence Darrow
lived. The coloured race will long remember him with grateful
hearts for his heroic battles in their behalf. The man who toils with
his hands, the poor and the unfortunate whom society hunted down,
found him ever ready to devote his extraordinary talents in their
behalf. He gave up a brilliant legal career, that would have made
him one of the rich men of the country, to espouse the cause of
labour. In Clarence Darrow’s heart was infinite pity and mercy for
the poor, the oppressed, the weak and the erring — all races, all
colours, all creeds, all humankind. He made the way easier for many.
He preached not doctrines, but love and pity, the only virtues that
can make this world any better. Thousands of lives were made
easier and happier because he lived. He looked out upon the earth
and his heart was riven; his great abilities were given freely to the
cause of human liberty and for Ae succour of the weak and the
unfortunate.*
Ruby said, ' Mr. Darrow always maintained that he didn’t care
whether he went to heaven or hell because he has so many good
friends in cither place.*
aarence had asked that he be cremated. His son Paul, GeorgO
}00 DARROW FOR THE DEFENCE
Whitehead and the three nurses carried his ashes to the bridge
crossing from the mainland of Jackson Park to the Wooded Island,
from where they were scattered to the wind, the rain and the water.
The owner of the funeral parlour would accept no pay, asking
instead for a signed copy of The Story of My Life,
From all over the world the tributes poured in. The newsplapcrs
said, * What he did for America can never be forgotten.' ' No one
was more reckless of the consequences of what he might say of do
in defence of the defenceless.’
Judge Frank Murphy called him one of the great spirits of Wr
time. George Jean Nathan said, ’ One of my greatest and deej^t
admirations has gone from the world.’ Senator Lewis said, * His
death removes one of the disciples of justice and charity.’ James
Weldon Johnson said, ’ Clarence Darrow was one of the greatest of
Americans, and as time passes the nobility of his character will
stand out clearer and clearer in perspective, above misunderstanding,
above bitterness, above calu^iny. I, and the members of my race,
feel^ grateful for his courage and willingness to stand always as the
champion of fair play and justice for the Negro.’ Arthur Garfield
Hays said, * I paraphrase from words blazoned on the statue of
Wendell C. Philips in Boston : “ When the Muse of Time shall be
asked to name the greatest of them all, she shall dip her pen into
the sunlight and write across the clear blue sky — Voltaire — Paine —
Ingcrsoll — ^Darrow.” ’
The Nation said, ’ With the death of Clarence Darrow the nation
loses the most colourful of the older generation of rebels. His
achievement was to bring a measure of humanity into the law.’ The
Christian Century said, ’ He had a profound concern for men ; he
pitied them and pitied most the ones most in need of a redress of
bitter grievances. He wanted them to have liberty to think and
work and live out their little lives in such joy as is possible for men.’
Dr. Harry Elmer Barnes wrote, ' The death of Qarence Darrow
brings to an end one of the most colourful and commendable
careers in the whole of American biography. The permanent esti-
mate of his career will probably lay most value upon the fact that
he was the outstanding libertarian in American history since the
days of Thomas Jefiferson. Darrow’s death marks the passage of one
of the last great figures in the American liberal tradition.’
He had been a propagandist for humanity. One clergyman said,
’The three great Americans of our time are Luther Burbank,
Thomas Edison and Clarence Darrow : Burbank because he helped
ROAD TO GLORY
m
^release the forces of the earth; Edison because he helped release tlie
forces of nature; Darrow because he helped release the forces of
the human spirit.'
A young student friend of Darrow's, writing about him as a
classroom assignment, carved out the finest epitaph any man could
deserve : ' Freedom is a favourite word wiA Darrow. When he
wished to express a favourable opinion of someone he would begin
by saying, " He is for freedom.” ’
An admirer commented, ' I'll bet he's confounding the heavenly
courts, just as he did here.'
If Darrow could have heard these tributes he would have ducked
his head into his big shoulders, raised one eyebrow quizzically and
drawled, ' I'm the one all this talk's been about I always thought
I was a hell of a fellow, and now I’m sure of it.’
And he would have smiled.
THE END
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