THE SILENT DEfENSEA Story of the ReJnlU'kabIeTrial of Member. of theIndu.trial Workero of theWodd Held at Sacramento,:: :: :: California. :: :: ::

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INDUSTRIAL WORKERS OF TIlE WORLD1001 W. MADISON ST. CHICAGO, m; U. S. A.

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THE ~LENT DEFENSE

A Story 01 tho R.mubhl. TrW of M.mhen ,I the lnd.striU••• Wd", ,f the World H.W , I SacnmtDlt, Califoroia. :::

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PU8USHED BY

INDUSTRIAL WORKERS OF THE WORLD100 1 W. MADISON ST. CHICAGO. IlL.. U. S. A.

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PRI NTING allJ PUBU SHI"'GiWORKERSINDUSTRIAL UNION N<>. IZOO

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The Silent Defense

mIn what is known as the Sacramento Silent De­

fense five men died, ten or more are physical wrecks.forty-two a re unde rg oing prison sentences, and theseare the gleanings of ab out 130 arrests directly con­neeted with the case. Nearly 1,000 men end womenwere a rrested , held incommunicado, maltreated.threatened with lynching, and then thrust out of jailwith insult and cr ime actually solicite d or suggestedby gu ardians of the law.

Leading up to t he Sacramento Silent Defense .therewere scores of police raids. These may be dividedinto three features. In California the first legal orillegal assault on the I . W . W. was made at Fresno.on Sept. 5, 1917, the day of the nation-wide raid.Sidney J . Shannon, deputy marshal, a sp ecial em­ployee named Freeman, and a trench dodger Hud­son, since a ppointed special agent, not only r aidedI. W. W. headquarters, but concluded to arrest some180 men found in the hall a nd in the nearby employ­ment offices. They sorted over this bunch and held

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some two score without warrant, charge or state dreason. Two weeks after the greater part of thesewere rel eas ed when habeas corpus was sued out . Inthese proceedings twenty-five men, including all sec­retar ies of Los Angeles , San Pedro a nd Sacramento,were indicted. These men were a ccused of (see in­dictment) conspiring to oppress employers of laborthro ugho ut the Unite d States.

The charge was so flagrant an attack on unionismthat it was dro pped. The re was a mysterious ex­pl osion in Gov. Stephens' mans ion, December, 1917.Curiously it was asserted one Swanson. a public utili­ties detective and principal sleuth in the Mooneycase, was in Sacrame nto the day and night of the ex­pl osion. This explos ion was a lso so timed that Pros­ecuting Attorney Fickert profited in the election torecall him, wh ich occ urred the following day. Fick­ert and Swanson were vitally interested in this elec ­tion, and Swanson's alleged presence in Sacrame ntothe night of the exp losion at the governor's mansiondeserves explanation. Vainly the dynamiters weresought . By accident, William Hood. an 1. W. W.member, was arrested. He ha d nine sticks of dyna­mite whic h he said he intended to use on a gold seek­ing expedit ion up the Feathe r river. By accident,George Vortter, an 1. W. W ., was with Hood whenhe went to the ex press office. Both are convicted ofhaving dyna mite in the ir possession without alicense. This la w was a statute just passed. A fewweeks earlier and they would not have been ar­rested. This arrest was made the basis of a raid onth e I. W. W.

Fifty-three were arrested in and aroun d the Sac-

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ramento hall. These men were thrown into a cityjail cell, 21x21 feet. All of them could not lie downat once. It was winte r . One cotton blanke t wasgiven each. Their foo d was about two ounces ofmush in the morning, less than two ounces of bread.and at night three feti d little smelts and less thantwo ounces of potatoes, with "coffee" twice a day.In the cold they sh ivered . Day by day they starved.By rel ays they slept at night ; the bedl am of a citydrun k tank soothed their slumbers wooed in frosta nd starvat ion. Everyone of these men ha d moneywhen arrested. They sent out and bought foo d forthemselves. This is a general privilege in the Sac­ram ento jails. This food was pl ac ed before theircells just outside the prisoner's reach. It rottedthe re. They slaved and starved. Once or twicesome of the " harness bulls" of Sacramento sli ppedtheir lunches to t he ravenous wretches.

Hearing of the horrors, the I. W. W. District De­fense Committee got busy. They started co unselwh o fail ed to see the pr isoners. They protested.They agitated. Fred Esmond brought some of thesefacts to the attention of Attorney-General Gregoryby telegraph. He was a rrested , and for eight monthsthe reafter was held incommunicado. At that t imethe I. W. W . was paying Nathan C. Coghlan $1,000per month to represent the San Francisco prisoners.During these starving times he saw this beleagueredbunch once, and that t ime del ay ed hearing. Thesemen suffered silently . Among themselves they said," Our case is not 80 import ant as the I. W. W. ; we'lldo our bit ." They waited a nd waited.

Fred Esm ond. during a portion of his eight months

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incommunicado, was thrown into "solitary." Hesuffered with angina pectoris. They say the damnedsuffer like this torture. Did it soften h is jailers!For forty-two days and nights. without bed or blan­ket, Esmond lay on the cell floor and fought his bat­tl e. "Over There. Over There I" they sang beneaththe jail windows. but Esmond met a " Hun" in theSan Francisco dungeon. His telegrams to the at­torney-general were introduced as riot acts of trea­son. Ca n you beat it? When the United States sentDon Rothban to investigate the Sacramento arrests,after many days he reported that there were nocases a ga inst these fifty-three men wh o shivered andstarved and sang the songs of Labor through theirbars. Later some of these were indicted becauseSpecial Agent Kelly said "they were singers!' Rath­bon's report was received with fury by the Sacra­mento parasites. They threatened lynching. OneCarunichar l, the editor of the Sacramento Star. andothers . assured Washington that they meant business.Meantime there is much proof that agents of the realestate sharks and the profiteers went through theslums inciting riot against the I. W. W. So the casewent on and iDdictments were issued. Some few ofthe first band were so obviously innocent that theywere freed; but in their places were selected thenames of the most active committee members of thedefense . Down in San Francisco stockyards som esheep ate tainted food and died. : All I. W. W. mem­bers were accused of poisoning food. By somechance the city chemist told the truth and reluctantlythe detectives, the press and the parasites layoff thepoisoning charge. But now they had an indictmentand after sixty-fo ur nights on the cement floor of a

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filthy jail the me n were placed in regular jail cells.As they brought the m over, Albert Whitehead, vet­eran of England on land and sea , showed his lncon­querable spirit by ' ....alking on his hands twice thelength of the tank. "You can 't scare us," he lau gh ed,but Whitehead is now one of the tubercular victimsand he lies in San Fra ncisc o jail doing a year.

They now had a n indictment an d some reasonabletreatment of prisoners was as ked. John Grave, oneof them, was rel eased on bail to attend the outsidewants of the prisoners. It was only a show. Thesemen were accused of circulat ing the I. W. W. pre­amble and constit ution and " History, Structure a ndMethode of the I. W. W: ' One prisoner aske d J ohnGrave to get him copies. He sought to deliver theseop enly in the courtroom during a hearing. SpecialAgent F. \V. Kelly and his ass istant seized the per­nicious pamphlets, made a hue and cry, and foreight mo nths thereafter J ohn Grave was prohibitedfrom seeing a ny of the prisoners. Every word ofcommunication had to be in writing and pass th roughthe prosecuting attorney's office. This was the basison which a fair trial was built. While J ohn Gravewas exc luded, the sto ol pigeon, Jackson Dymond,could see t he prisoners readily to urge them to pleadguilty.

Chris Luber, sec retary in Sacramento, had been in­cluded in the Fresno indictment. In his caee theprosecuting attorney declared that if bail was of­fered for him, Lub er would be arrested on anothercharge and held. The same threat -was made in thecase of Esmo nd. These matters were reported tocounsel, but shrugs and "it's war t ime, you know,"

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was aU the answer. In prison these men lay androtted.

Fo ur times the indictments were changed. De­fendants were shifted and called. Acc usations fol­lowed on charge. It was a wilde r dream of high­handed legality. F inally all these indictments nar­rowed down to one wh ich at last ca me to trial De­cember 12, 1918, and dragged on unt il Jan. 17, 1919.In this fina l ind ictment , dynamiting, terrorism, the I .W. W . preamble, and the calculation of Mr. Dooley's"If you want a r ight , take it; don 't let any one giveit to you" was the climax. Why fifty odd personsshould be accused of circulatin'g Finley Pete rDunne's literature as a crime and Du nne let go f reeis a myste ry which proba bly the la wyers who let anthe above pass can explain. Law is a cu rious con­traption.

After months of this hell , the arraignment tookplace on Oct. 8, 1917, before Judge Van Fleet inSacramento . Wh en the men were brought into courtfrom several jails around the state they a ll met forthe first time. Here was a conspiracy charge against53 persons who had never assembled before . JudgeVan Fleet, in one of h is eloquent harangues, warnedthe defenda nts of the seriousness of the case, and aft­er all the suffering, there in co urt was an office boyto defend us . He and his employers were cannedright there. These Sacramento prisoners had enough.W hen J udge Va n Fleet read a telegram asking post­ponement of the case until spring. he was noti fiedthat the defend ants therein demanded a sp eed y trialand J udge Van Fleet exercised h is unconstituti ona lpower to postpone the case to a date pleasing to h im

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and the district attorney. This was after eightmonths' de lay, out rage, intimidation, and ac tawhich , when the world learns them, will stamp theselegal functioners with a n unenviable fame.

So the trial was postponed. Till Dec. 9 these menlangu ished. Prosecutor Robert Duncan promisedfairness in dealing with the self-defending prison­ers. Judge Van F leet stated he would set reasonablythe ba il for a committee to manage the defense. AtDuncan's own suggestion the men elected three rep­resentatives-Phil McLaughlin, Herbert St redwickand Mortimer Downing. He ha d notified the de ­fe ndants that if Esmond's name was incl uded in thoseelected he would arrest him unt il effort to re leasehim was abandone d. When Duncan rece ived thesethree names he then cut out Ph il McLaughlin 's na me.If we coul dn't have even t he men of our own selec­tion what was the use of playing that game. Dun­can then ca lle d Stredwick an d Downing before hima nd stated that it was their duty to inform the pris­oners that if a pl ea of guilty was entered great len­iency would be used to the defendants. Obedientlythose two laid the matter before the me n. The replywas " We would not plead gu ilty if you ha d bond toturn us loose." That was a ll f ro m Duncan until hegot us into court. He never a nswere d anothe r let­ter. He held up appeals addressed to the presidingjudge, he prevented the summoning of witnesses, etc.For insta nce, John Grave was the outside agent . Aft­er long protest he was allowed to talk to the menthrough a fine mesh screen with a g uard. What achance to summon witnesses! If we gave names ofany witnesses one experience ta ught us they wouldappear on another ind ictment with us. It was easy

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to get indictments; these men saw 1t done five times.So without witnesses, wi th out counse l, with nothingbut conte mpt , we went int o court a nd welco med pen­itentiary as a relief from their vile ja ils an d th e die­cipline as a happy contrast to the hypocri sy.

Before ge tting to court another chapte r was re­corded. From Oct. 8 till Dec. 9 the " flu" raged. OnDec. 10 the first victim sicke ne d. In three tan ksthese men lay. U. S. Marshal Holahan was publishedas seeking means of protecting the men in the Sacra­mento jail. They lay in their tanks. Oft en only onecould stagger around. These men sent out a nd hireda doctor, a nurse, and bought their ow n medicin es.It's one more blot on Sac ramento . Th e matron ofthe jail gave the men some soup and milk t oastdaily d uring the worst. That one kind ac t is remem­bered. " We never forge t ," Th ese men laid therean d stewed in their own effuvia. Fi ve died. Ten ortwelve are sick to day.

Frank Travis was a big burly fellow with a nnevoice. In October he ca me into Sacramento. He wa sa migratory worker, youn g and fear less . He had anic ke l in his clothes. He wante d a flop . Some onesaid to come down to the I. W . W. hall. He fo l­lowed. There the boys jollied h im. He slept the reand the next day went out to a job the secre tarytippe d him to. He worked a few days and carne inand took out a card . Thirty days a fte r he was inagain with a littl e bigger stake . He was capturedin the raid. On Oct . 22, 1918, the anniversary of h isiniatiation, he died in agony in the jail. Kell ey wasasked why he was indicted. "He was a delegate,"answ er ed the apectal agent. "Delegate? Why he

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wasn't thirty days in the organization:' . " Oh, thenhe was a sin ger; yes, he was a singer:' And so aman was condemne d to death by an officia l so densethat he thinks sin ging is a crime. Travis used tosing as he starved in the city jail , and none couldsca re him. He died because he sang the songs ofJabor!

During the "flu" these men were permitted a littlerun in the outer tank. On going into their cell s oneof the j ail ors ordered Fred Esmond to hurry. Painrac ked, he to ld the jailor to go to Hades. For thishe wa s orde red to the d ungeon. He was prote ctedby his fellows. There were eightee n men in the tank.Kelley herded forty or fift y policemen and specialsinto the tank and before he left every item of comfortfor the men was confiscated, including some petro­latum which one was taking for constipation. Theytook aw ay the typewriter which was being used toget some outside aid for the defense. All these menwill pray for Kelley in the good days to come .

Just a br ief sketch of the trial . Weakened a ndbroken in ranks by death these men fa ced their fate.Suggestio n after suggestion of attorneys had beenturned down. I These men cam e into court on Dec.9, 1918. It was the day set for the nation-wide Moo­ney str ike against justice as afforded working men.Although the general str ike was called off, thesestruck and are still dauntl ess that this strike willfinally win. Ther e were then strike breakers andfor obvious reasons this mention will suffic e. Therewere also some renegades, some snitc hes. Th ese menwere accused of aiding the Kaiser and hindering thewar a gainst him. So that being the charge and the

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war occurring in 1917. if a Swede or a Hot tentotgot mad with his boss in 1913 and cussed him and ifit was proved the worker had an I. W. W. card ora ppeared at an 1. W. W. meeting, it was enough toconvict forty-seven persons and subject them to thepenitentiary for twenty years. If in the I. W. w.files a ll ove r the land one of these defendan ts had aJetter acknowledging receipt of a letter it wa s posi­tive conspiracy. They introduced stuff about st ick­ers in 1913 and all down to 1917 . but they nevershowed that one of the defendants sabotaged anegg. Hay stacks burst into flames wh en sheriffs andde puty she r iffs were r ight there. but never wh en a nIn dust r ial Worker of the World was present. Some­body robbed a car conductor a nd it was said that aprisoner looked like the thief . This was ev ide nce thatthe defenda nts stopped the manufa cture of a mmuni­t ion. There were six stoo l pigeon s put on the stand.One J ackson Dym ond sto le $1.200 fr om his fell owworkers, but he could co nnect no one with a crime.He said one defendant got phosphorus from a chem­ist in San Francisco. He neglected to tell why a manwho had the confidence of his fell ow workers sostrongly that he got $1.500 in a lump could not findthe name of the chemist or produce some phosphorus.On e forema n identified Bob Comella n positively asthe man he saw at the lumber yard at the time Bobwas in San Quinten doing time because of the Sto ck­ton strike of the A. F. of L.

To corroborate the testimony of the stools and theuniforms a detective swore that he saw MortimerDowning on the picket lin e eve ry day during theWheatland boycott and that he knew Downing wasthere to attend to the arson and direct the violence.

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During all this time, every day of it , Downing wasin the Maysville county jail. When the prosecutionwas informed it made no attempt to correct theerror. Another stool swore that J ohn Grave was inthe Sacramento county jan and wh en the recordswere produced no step wa s taken to punish the mani­fest perjury.

When the prosecutor was summing up the casehe argued before the jury concer ning two of thesedefendants that it did not matter whether the wit­ness lied or all of them lied. It need simply to beasked what the defendants were doing in 1916. Werethey helping in the preparedness campaign; werethese defendants then helping to prepare the countryfor war ? If the y were not they were guilty, and thejury sh ould so find them. After the trial Dr. Dun­ca n was r eminded that in 1916 President Wilson wastoo proud to fight and he had the grace to show hisconfusion.

llr. Johnson, assistant prosecutor, said it did notmatter wh ether one of the witnesses lied or all hadlied; all he need to tell the jury and prove was thateach and every defendant was an 1. W. \V. and hewas sure the jury would convict. It did. Forty-sevendefendants on four counts and innumerable acts wereconvicted in twenty minutes. Only that time elapsedbefore the prisoners were called back to court, but itto ok one hour and ten minutes for his honor to re­turn.

Such is a brief story of the case. The outstandingfa ct is the frankness of the prosecution that it onlyneeded to show these defendants as 1. W. W. t o geta verdict of guilty. Judge Rudkin had ruled that it

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·was 8 S legal to be lon g to the I. W. W. 8S to theMasons or Chambe r of Com merce, but the j ury, com­posed of a man wearing a star, a couple of million­aires, and a bunch of small fanners, did " their duty"as they did.

In t he officia l record of the trial of the forty-seven1. W. W.'s in Sacramento, Cal., ap pears referenceto correspondence between J abo L. Murphy andChris. A. Lub er , both defendants. Only the letterse nt from Murp hy to Luber was offe red. Thom asMul hall , a deputy marshal , wa s q uestioned conce rn­ing this inciden t and his replie s were mislea ding.

It would be d ifficul t to prop erly character iz e theseletters . Suffice it t o say h istory records us ot he runblushing incitement and subornation of crime ont he part of the U. S. government agents. J ohn L.Murphy wrote to Luber in Sacramento asking him torinformation concerning t he arrests. Murphy thoughtLuber was st ill in Sacramento as secretary. He in­q uired if he could do anything a nd assure d Lubert hat he (Murphy ) had straighte ned up and a ll thatstuff. Lube r was then a prisoner in t he Fr esn o eoun­ty jail on the Fresno indictment. This let te r wasseized by t he prosecut ing attorney, opened and read.Luber was unconvicte d and in full possession of hiscivil r ights. To purloin this letter may be exc usedby genero us st retching of charity, but wha t can besaid about the officials who forged Luber's name toa re ply. Some official of the government replied t oLuber's lette r. F. W. Kell y, special agent, blusheddeeply when the matter was touche d .

In this lette r Lube r is made to tell Murphy a wierdstory. He is to ld not to write to the 1. W. W., but toa secret address. This address is the office of the

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prosecuting attorney. Murphy is told that the of­flee boy there is a bright lad and that this same un­derground was used by Emma Goldman and Berk­man successfully as the boy always got there firstand wa s particul arly bright. Mind this is from a gov­ernment agent ! Murphy is told he can write as free­ly as he lik es to their addr esses. Then he beginssom e of the letters in which Murphy is again andaga in told to get busy and suggest someth ing. Heis to ld that Dublin Bob got $400 for pulling off a jobfo r som e German at Knight's Lan ding, and later by .Jetter, Murphy is tempted to de clare himself in favorof som e pl an of violence. Murphy hung back and,as he explains it , t hought Luber eit he r had gonecra zy or crooked. At last, afte r being seven t imestempted, Murphy suggested that if he ha d the meanshe might get into a factory a s a loom fixer an d thenin a few day s be on his way.

Remember, all this is in reply to forged lettersand forged signatures of a man in j ail. No soonerhad Murphy yielded than he was arreste d andbrought to Sacrame nto from Washington.

Only Lub er's letters were read at the t r ia l. JudgeRudkin resisted a motion to compe l all the corre­sponde nce to be read. This frameup is notoriousamong all connec ted with this case. In the begin­ning the newsp apers attributed it to Thomas Mul­hall, but he indignantly repudiate d it , while F. W .Kelly cowered and blush ed . If there is a nything inthe Moon ey case worse than the Luber forgery it isunknown, and this was not the act of some desp eratepolitician, but of a government official. Som e agentof the United States is lost to all decent resp ect for

prisoners' rights. This sa me man Jet manifest per­jury go unpunished several times in this case, as inthe instances of wit nesses' agent, Grave, Comellanand Downing, wh en t he records show the physicalimpossibility of the wit ness' truth. No notice has beentaken of this forgery a ny more than perjury.

It is t he firm belief of tlAl now imprisoned victimsthat one day these facts will become known. I havenever hea rd a complaint from these men and I amproud to be among them. We are sure of a final 'fin-

. dication .

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The Silent DefenseBy Jean Sterling

"Do the defendants. not re presented by attorneys,wish to interrogate the talesman ?"

The court reporter held his penc il suspended. Theforty-three defendants faced with moc king eyes a ndclosed lips their ja ilers, prosecutors and presidingj udge .

" Do they wish to exercise the right of challenge ?"For a tense second the inexorable whe els of j us­

t ice stopped turning. Some one had thr own a fe ltslipper in the cogs. The defendants gave t he pros­pective juror not so much a s a glance. They hadread a nd yawned and gazed vacantly out of t he highwindows while the attorneys for the prosecution hadbeen probing the tal esman's soul for any humane ormodern ideas on the subject of labor.

Then. a fter a decorous sile nce , such as is observedin court procedures a nd fu neral ri t es, the judge saidq uietly, "If, t hen , t here are no objections to the tales­man, he may take his seat in the jury box;"

And so the juryman, an an cient ran cher. t he proph­esy of the typ e to follo w, took his seat .

An d in this manner did the forty-three defendants.I. W. w .:s, now being tried in Sacramento, Califor­nia , on charges of conspiracy , under the Espionageact, ope n their "sil ent defense:'

Three of the group hav e employed lawy ers . Allthre e hav e domestic lies or dependents, which makesthis separate acti on imperative. But the remainder,the forty-three, who a re in jail during the trial be-

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cause of the exorbitant bail ;hich was demanded ineach case, will mainta in throughout the entire triala defense of unbroken silence.

"We decided upon the s ilent defense:' said Mor­timer Downing, electe d spokesman for the group,"because we despair of justice for the working menbeing achieved through the courts. The Mooneycase, the Frank Little inc ident, the Bisbee cases, theChicago trials, these have convinced us of the use­lessness of legal defense. We are tried in a preju­dic ed commu nity. Some of our men have be en h eldincom municado. They have been prevented by Unit­ed States agents from mailing courteous appeals tothe court. Som e of them have been con fined , untried,for a year. These conditions are intolerable, and this'silence st r ike' is to preserve the self-respe ct of our­se lves as members of organized labor ."

"A nd so they sit there in the big white court room,challenging neither talesman nor evide nce nor ex­hibits nor witnesses. They hav e grown pallid fromtheir long sojourn out of the sight of the sun. Theyare emaciated. They are unshaven, many of them .Their clothes are ill-fitting and thin. But their eyessmil e and are unafraid. There they sit, throughoutthe long sessions, coughing, coughing, several of themobviously tubercular, their incessant cou ghing shat­tering into fragments the well-ceme nted evidenceagainst them. Up on his bench the judge sits withh is handkerchief pressed against his nose and mouthJest the contagion from the defendants spread .

As they e:ugh the prisoners raise their hands totheir mouths-the shrivelled hands of old men, ofmen not old, blue and cold and calloused. Theseare the hands that have helped to sink the shafts

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and mine th e gold in frozen Alaska, that have cutspruce and pine in the dee p wet forests of Washing­ton, packed sa lmon in Oregon, harvested the cropsin the sun-scorc hed vall eys of California . These arethe hands that have worked incredible hours insteaming canneries, in shr ieking saw mills, on fog­swept wharves a nd down in starless mines.

Unconsciously they offer these hands in evide nceof servi ce to their country, t hese han ds with the scarsand the wounds of labor upon them. And theirbodi es, too, they offer, illy nourished, wa rped an dbro ken by toil.

True, these defendan ts belong to an organizat ionwhich they think will eventua lly prevent thesewounds, these trials. Even their silence does notdeny this cha rge in the indictment. And it may be­l do not kn ow-that som e of them as individualshave struck out in retaliation against powerful andunseen forces which sapped their vigor a nd burn edout their youth; that they pitte d the ir own punyforc e against the overwhelming force of establishe dsociety.

But, whatever they have done or hav e not done,they will not spe a k in th eir own defense. "It is use­less," they say. " We despair! Look for yourselfto th e history of our case. Look at the powers ar­rayed a gains t us I"

The hidden springs of these tri als began far back,even farther back than the spring of 1916; when acoast-wide drive was started against organize d labor.In the seasonal trades, which form so large a part ofth e work of the Pacific Coast , the I. \V. W. orga niza­tion was numerically strong. Among these modernnomads was fa st q uickening a sense of industrial sol-..

idarity. Meanwhile in the citi es, particularly in Se­attle and San Francisco, the Am erican Federation ofLabor un ions were politica lly powerful.

The Chamber of Commerce in San Francisco wassa id to hav e coll ected a fund of a million dollars withwhich to fight organized workers. "Economic battlesraged in camps, in fields and factory. Legal battleswere fought in Everett, Washington. In San Fran­cisc o, the fa mou s Moon ey cas e began, ba cked by theChamber of Commerce. Am erica 's ent ra nce into thewa r did not re concile the clashing economic interestsexcept superficially. So that while the 1. W. W.'sin Sacramento are being tried on charges growingout of war condit ions, we find the same influenceslined up , politically a nd industrially, as lin ed up be­fore the wa r.

We find Deputy United States Marshal Mulhall,a spec ial investigator for the Department of Justicein the Sacramento cases, in frequent discussion withFickert over the methods to pursue and the probab leoutcome of the two cases. " I am go ing to lin k theMooney cas e 'with the Sacrame nto case," Pickert tellshis as sistant. " I am going to have a meeting withMulhall tomorrow." (Dl ctagraph re cord)

Mulhall came, and in the course of their conversa­tion Mulhall to ld Fickert, " If eve r you get in a holesend for me. I ca n take any of these witnesses andpull the fri endly stuff on them and generally getwhat I go after ." Mulhall discussed the possibilityof losing out in the Sacrame nto cases and also in theMooney case. Finally he said, "You know that ifth is thing ever breaks we will go down hill so fastthat a ll hell won 't save us:'

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These are the mai n fa cts in regard to the Sacra­mento case: During the course of this interminableMooney trial a recall was started against Fickert.On Dec. 17, 1917, the nig ht before the recall elec­tions, a bomb exploded under the back ste ps of thegovernor's mansion in Sacramento. It did no harm,except to return Fickert to office.

A round-up of all 1. W. W.'s follo wed. The ir hallwas raided , books. papers, pr operties were seized.Within ten days forty-eight men were in jail.

Feder al investigators a ppeare d in Sacramento; butthe trail from the scene of -the ex plosion, inste ad ' ofinevitably dipping toward the jail , wound in a curi­ously opposite direction. Don Rathbun, specia l agentfor the Department of Justice, reported that they" found nothing to warrant a ction." The governor'sown detective wa s un able to con nect the men in jailwith the explosio n. But the men stayed injail.

A de mand was sent to th e Department of Justicein Wa shington that th e men be held. D. W. Mar­michael, preside nt of the Chamber of Commerce andhead of th e Sacramento city counc il, together withthe editor of " The Sacramento Bee" a nd Ray Benj a­min . Deputy At'torney Gene ral. Fickert's personalfri end, the officia l whitewasher of Oxman whose per­jured testimony sent Mooney to j ail, de manded thatthe fe de ral government take action .

"The Sacramento Bee" ques tio ned the willingnessof the United States government to ac t a nd calledupon the " aroused citizens to take the Jaw in theirown hands ." It printed a letter from the secretary ofthe Chamber of Commerce at Tulsa. Oklahoma , rec­ommending that " a coat of tar a nd feathers be em-

21

bossed on the prisoners' backs through the lashingprocess."

The fo llowing February, after be ing held in jailfor nea rl y th re e months on one charge, the chargewas dismissed and the men were re-indicted by thefederal grand jury. Others were added to the group.Theodora Po llok, the one woman indicted, was in­cluded.

Months went by without the defendants beingbrought to trial. I am told that for sixty days theyslept on the cold cement floor in winter, with only ascant cotton blanket; that wh en food was brought tothem from the outside it wa s placed before their eyesbut out of their r each . '

Meantime the daily papers abounded with "out­rages" committed by the I. W. W's. Candidates forthe governorship toured California , sowing seeds ofhatred and misunderstanding. "Successful prosecu­tion of the war for de moc racy" and the " extermina­tion of the I . W . W.'s" were the two great issuescommon to both sides in the campaign.

In September, eigh t months after the or ig inal ar­rests, do wn in Fresno county another round-up of I.\V. W.'s to ok place. Twenty men were jailed oncharges of arson. " The fire s in the haystacks a re dueto incendiary bombs," say the arresting officers. " Dueto imperfectly cured hay or the 'disciplining' of re ­fractory non-members of the Farmers' Association,"say the accused men.

In October a fina l indictment was r eturned. Itconsolidates the Sacramento and the Fresno cases,group ing them all under the charge of conspiracy.

22

By this arrangement , men in jail are charged withcrimes committed long after the ir imprisonm ent. Thislast indictment dropped a number of the lesser de­fe nda nts and others took the ir pla ces, more dange r­ous to society. Up to this day no one has been a p­p rehended for the explosion at the governor's homea ye ar ago.

Finally in December, a year aft er the origina l ar­rests , they are all brought to trial - all but five whohave died in j ail-brought to tr ial down in the richsilt va lley of the Sacramento , whe re bitterness hasgrown rank, whe re are located .the great hop ranch­es of Fo rd and Suhr fame, where "The Sacrame ntoBee" is to be found in eve ry home and on everyran ch- the paper tha t urged lynch ing as the solutionof the labor problem. In the heart of this beautifulv all ey lies the city of Sacramento, gay in its Christ­mas greens a nd red street lights ; and in the heart ofthe city stands the Federa l building, a structure ofenduring stone.

W all ed in by the high Sie rras a nd the Coast Rangeis this garde n spot . Walle d in by collossal preju­dices and actual circumstances a re the defendants.No utterances of their grievances, of their point ofview, r eaches the outside world. The ir publicitycommittees are a rre ste d. Their offices are raided.Their paraphernalia and plan s of defense seized.Their Defense Bulletin is denied the mails. All in­comi ng an d outgoing mail is, of course, re ad by thejailers. All conversat ions ar e in the presence of de­tectivee-c-as with all prisoners. Scareheads in thelocal pa pers warn the public of a possible bomb atthe trial , an d therefore "in the interest of the pub­lic," the spectators' door is kep t locked during the

23

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/ sessions. Visitors are questioned as to their interest.who they are, 8) that either through fe ar or incon­venience. no one comes to "listen" to the "silent de­fense." The seat s for the public remain empty .

"Don't you see:' they say. " the uselessless of th eusual defen se ?"

And they cont in ue to sit in sile nce. But their si­len ce is not sullen ; neither is it pert. It has backof it a conviction rather than a mood. It is intel­lectual rather than emot iona l. It is always challeng­ing, argumentative; piquing the curiosity of thejudge, of prosecutor and of jury. It is not the si­lence of death ; not of winter, but of early spring,

Silent ly they sit. awaiting the inevitable sente nces ,so cool, so unbroken in sp irit, proving that man do esnot live by bread al one; making strangely artificialand p ompous the perfunctorydecorum of the court,

In spite of the constant coughing a certain pleas­antness pervades the court room. The fa ct that thedefendants-the silent group of forty-three men­do not op pose the prosecution, or through lawyersseek to block and outwit t he state , makes the pros­ecuto r 's task an easy one, He can be almost him­self, And "himself" is a ch eery, grandfatherly manfrom the litU town of Ukiah , up nor th , and he jog­trots along with his load of evidence, as if on a pleas­ant country road. He is assisted by an am iableyoung lawyer of til ~ Sunday sch ool type who"helped" in the Chicago convictions.

So far, the prosecution have only read and readand read; hour in, hour out, from "Solidarity" andfrom the I. W. W. Song Book. Everything they readis intended to show the attitude of the I. W. W:S

••

toward grave social questions, problems which havenot as yet disturbed the sweet-scented serenity ofthe Sacramento valley ; articles which portray theclass struggle in the coarse la nguage of the "blan­ket stiff" as he trudges the "dirty plate route." Inkind ly voice the young prosecutor explains to thejury, as one would to little children , what "sabo­tage" and " the cat" and " one big union" mean- tohim. He shows them pictures of cats and woodenshoes .

By 4 o' clock the defenda nts have sunk fa r downin t he ir seats. Their heads rest on the back of theirchairs. The coughing is more and more frequent.The j udge presses h is handk erchief tightly over h ismouth and nose. Can it be that there is dangerof inf ect ion from these ideas? The deep-set eyesthat look out over h is mask see m almost tender inthe fast fading light . A judge should have ste rnereyes!

The jury- su ch old . old men ! look bored and help­less. What horrible ideas they have just heard !J esus, a " bla nket stiff !" "Pie in the sky!" Employ.ers called " snakes" an d " rept iles," and the word" prosti t ute " r ight out in print! For this is a coun­try j ury, good men.

At last 5 o'c lock. The j udge instructs the jury to"form no opinions" and they go the ir separate ways.The judge comes down from his bench. The pris­oners are lined up by their jailers to be taken downan ele vator , through a tunnel under the Federalbuilding, back to their jail. The big white room,tomblike in its marble, is full of shadows a nd unsaidthings.

••

As the elevator with its human freight drops intosubte rranea n regions, a hollow cough echoes up intothe va ulted chambers of justice.

01' Rags An' Bottlesby Special Correspondence

On the grounds of the Capito l.at Sacramento , amiddeodars and pa lms, is a sun-dial bearing the legend :

Th e sha dow cre eps and creeps ...And is a lways looking over the shoulder of sunsh ine .

\Vithin the marble building on a recent sunny aft­ernoon Governor Stephens was taking the oath ofoffice and in his ina ugural address made a strongdenunciation of the I. \V. W. He declared : "It isimportant that every pe rs on sho uld understand thatneither la bor , organized or unorganized, nor anyhonest man who works eit he r with h is hands or withhis brain, has anyth ing in common with these skulk­ing wielders of the to rch." In the legislative cor­r idors ran hot d iscussion of the possib ility of makingmembership in the I . W. \V. a felony. To these menin the Capito l the I. W. \1Il. wa s the sha dow over­cr eeping their prosperity .

On the other side of town at the county court housethe government wa s trying forty-five men and onewoman under a blanket indictment charging viola­tion of the Espionage a ct. The defendants are allmembers of the Industrial Workers of the World ,some- of them orga nizers, most of them defense sec­retaries who had be en en gaged in ra ising fu nds toprovide bail or counsel for their fe llows. The clr-

26

cumstances are involved and peculiar and it is hardt o get light upon the situation. Th e indictment.which covers sixty-nine typewritten pages. is for con­sp irac y to hinder the prose cu tion of the war by overtacts, But it is assumed that because men are fellowm embers of the 1. 'W, W , the}' would naturally plottogethe r ; therefo re, ap parentl y, it h as not been con­sidered necessary to prove that the d efendants. manyof whom we re entire stra nge rs to one another untilthey met in jail , had been .peraona lly associated .Th e overt acts charged are of a nature new to mostof us; it is hard to see how t hesending of telegramspro test ing against jail conditions, and the receipts ofletters fro m ot her 1. W. W .' s in Cook County jail inCh icago, may be termed overt acts.

The occ as ion of t he first la rge number of arrestswas th e bombing of t he back steps of the mansionof Governor Stephens in Sacramento. F edera l au­thorities, ho wever, according to the statement of thede fen se , uncontradicted so far as I have been ableto learn, reported that the I. W . \V.' s were not in­volved in this explosion, and recommended their dis­missa l; and Govern or Stephens himself concurred inthis action, afte r a n investi ga ti on made by his per­sonal d etective. According to the same a uthority,how ever, an ap peal was made t o the Department ofJustice in W ashington by the presid ent of the Sacra­mento Chambe r of Commerc e and the edito r of theSacrament o Bee, with the a id of an assistant districtattorney who is contem pt uously characterized as t he"whltewaeher of Oxman." In any case, the menwere kept in j ail some months, Afte r t he first ar­rests there broke out an epidemic of small fires invarious pa rts of t he sta te; numerous haystacks and

27

barns were wholly or partiall y burned. At once alot of migratory workers were round ed up (in somedistricts where the local quarrels of certain fannerfactions amounted almost to a feud) and added tothe first group.

In t he meant ime the Secret Service ha d not beenidle. The entire I. W. \V. Defe nse Committee ofCa lifornia was arrested, and ind icted with the firstgroup. Bail, which had origina lly been fixed at$2 ,500, was raised to $10,000. In five months theSan Francisco hea dq uarters for defense work wereraided six times and the defense sec retaries, whilepreperirrg for the t rials, were arrested as often. Thenumber of defendants has increased almost auto­maticall y : When a defense secretary is arrested an­other member of the organization stands ready totake his place and carry on the work, knowing thatin the next swath he will fa ll before the machine.But the defense work th roughout the state goes onwith a waiting list of secretaries. Pictures of the ar­rested me n were posted all over the state, a lthoughthey were safely in jail and not fugitives from jus­t ice. Th is, of course. facilitated the gathering oftest imony and sharpened the memories of those eagerto testify. By the t ime the t r ia l began the indict ­me nt had been changed four times. The overt actsnow charged include arson, and by the strange sup­pos ition of conaplracy, men who have been behindthe bars for months are held along with newcomersfor fires which they could have set only by "absentt reatment." The indictment does not charge that a llthe defendants eet all the fires. It charges that aUthe defendants reached an agreement to accomplishcertain unlawful purposes, and that in pursuance

28

of that agreement some of the defenda nts se t thefires . All the defendants therefore. are deemed tohave been responsible beca use of the su pposed com­mo n agreement.

And who are these "skulking wie lders of thetorch?" as the chosen representat ive of the people ofCalifornia ca lls h is fellow citizens. Of what type arethese men so rea dy to surrender thei r freedom forthe we lfare of others as they conceive it ? They are .a ty pical cross-section of American life, as if all therandom occ upants of a street car should be cast intojail together. Among them are workers with handand brai n, university men (one from Oxford), andagricultural laborers; workers at va rio us crafts a ndtrades, lumbermen, chemists, journalists (one theformer city editor of a Los Angeles daily, one formany years Washington correspondent for we llknown Western papers ) : a court reporter of twentyyears ' standing; young, old and middle-aged. Twoor three Frenchmen, a Canadian, and a Syrian arenot citizens of the United States, but the majorit y arestraight American-even though their names stillsavor of peat; Americans of the old type now rarereast of the Rockies than west. For the most partthey are sturdy, though confinement has spread t u­be rculosis among them, influ enza is supposed to havecaused the death of five, and one has gone insane.On studying the faces of the group, as they si t dayafter day through the dreary trial, one is struck firstby the absence of su llenness or defiance in .t hetrfaces. There are some weak chins an d some nar­.rowed brows among them, some visionary eyes thatunder injustice might flame in to fanaticism. But onmost of the faces one reads kindliness, common-

29

sense, American humor. In a strange town oneturns to such people to ask the way, kn owing wellthat the man accosted will gla dly turn back to setthe st ranger right. And among them is one woman,a high-bred daughter of our South, slender andgray haired.

So much for a first glance at the defendants. Thejury. on the other hand, owing to selection, is a lessdiversified group-a butcher, an ac countant, a re­tired grocer, a horse-sho er, an ele vator man, an au­tomobile salesma n, and the rest ran chers. Threeof them, probably, are under fift y; of the rest theaverage age is apparently over sixty. Eleven ofthem are said to be regular readers of the Sacra­mento Bee. Judged by their fa ces, their experiencehas not been broadening; they give the impressionof men of habit rather than of intelligence. Tosuch men. economic dissentients like the I. W. 'V.would naturally seem dangero us characte rs whoshould be shut a wa y for the safe ty of the public.

On the bench. a forcibl e contrast, is Unite d StatesDistrict Judge George H. Rudkin, of Spoka ne. apowerful man. overtopping a ll others in the court­room. Though he is past middle a ge, his vigor andkeenness are unabated, and one feels instinctivelythat he will see justice done or kn ow the reasonwhy. The stage is set a nd the trial begins for theday.

Remember that the defendants have been fromsix months to a year in jail, only four of them hav­ing been out on bail; and that the trial has beendragging on for weeks. The defendants are shutaway from their fellows, so far as one can learn,

••

because of their economic beliefs. Although thenominal crimes charged against them would, if true,call for only a few years of imp risonment, yet underthe Espiona ge Law, which has "been stretche d itselastic utmost to cover their case, they are liableto serve twenty years.

An d what are the cha rges preferred agai nstthem? The witnesses a re called in wearisome suc­c ession-a rancher, a tire chief , an under-sheriff,more ranchers, a petty police officer , a car conduc tor ,a relapsed I. \\r. W. Each man testifies to from one tothree fires in his neighborhood-haystacks, barleystacks, barns, occasionally a Iumber yard or a ca n­ning factory. In most cases the tire had bee n eXMtinguished before do ing much damage; in a lmostan cases the owner had been amply insured. In agri­cultural distri cts the fires ha d occ urred in the night ;in lumber ya rds or sh ops, afte r working hours or onSundays ; no person had suffered physical injury.What was the nature of these fires? Of supposedlyince nd iary or igin. What ev idence of this ? A twistof rags the size of one's finger, about two incheslong. Witness after witness testifie d to ph osphorus­soaked rags, a lways of finger s ize, never excee din gtwo inches, till the defenda nts were in a ga le oflaughter. To find a nee dle in a haystack has al­ways been a nine days' wonde r, but how pallid anachievement com pa red to find ing a two-inch in­flam mable r ag in a blazing haystack ! The next wit­ness ven tured from the beaten path , and his ragbroadened to the size of his palm, a nd contained aflat cake of phosphorus with ita virtue un dimmed bythe tir e. The testifying fir e chiefs were apologetic ;they ha d been so taken up with pu tting out the fires

3'

that they hadn't time to investigate sources. Somuch for the infamy of rags. Small bottles we renext produced, sa id to contain poisonous or inflam­matory chemicals. These were supposed to havebeen found near fires or on the persons of the de­fendants when a r rested. An expert chemist-ahandsome young marine-testified to the injuriouscharacter of the con tents, but admitted that thesepreparations were frequently used for killinggophers.

The judge grew restive under the repetitions anddrew the attention of the j ury sharply to the factthat the testimony of the witnesses was overlapping,so that there appeared to be more fires than thereactually were. Was a ny individual su spected ofsetting these fire s ? Apparently not, but one manwas seen bicycling a way f rom a fire at an ear ly hourof the morning. If arson is to be proved it must beproved with rags and bottles.

One amaz ing manifestation common to almost allthe witnesses was the photographic accuracy oftheir memories. A fire st arted, let us say, not "ear lyin the morning," but "at 3 :10 a . m., J uly 6, 1917."Many of us, perhaps, could remember meeting astranger downtown Iate one fall afternoon j but whatmarvel of infallibility he must be who unhesitat­ingly maintains that it was at 5 :25 p. m., not 5 :20,on November 3, 1917, that he saw the stranger crossMain street ! A young car conductor started to tes­tify that at 12 :20 on a specified night a st rangeman sat huddled on the front seat by the motor­man-but eithe r memory departing or consciencereturning, the story became so confused that thejudge dismissed the witness. Several of the wit-

••

neeses were afflicted with stage fright. A liberalall owance of testimony was ruled out by the judge,but, eve n so, perhaps it registered t he desired effecton the jury. A minister of the gosp el testified thata st range r , wh om he now promptly identi fied afterthe lapse of over a year, as one of the defendants,stopped him at the corner of Nineteenth and Cctreets, at 5 :20, on th e eve ning of the explosion atth e Gove rnor 's house, a nd inquired the way to Hstreet . The stranger had a pa ckage under his arm- a nd t he Governor lived on H street ! The jurysaw the connection at once, and no further links hado be forged in that particular chain. Two young

fellows had been arrested for r eceiving dynamitesh ipped illegally by ex press, al so near the date ofthe bombing, but as the nine sticks of dyn amite wereintroduced into court in propria persona it - couldnot be assumed that they were the actual cause ofthe explosion . The judge orde red the removal ofthe dynamite, to the evident relief of the jury-c-eape­cially as the counsel for the defense had suggeste dthat the exh ibit be tested to see if it really were dy­namite.'

An occasional feeble effort was made by the pros­ecut ion to show that the fire s under discussion ham­pered the Government in the cond uct of the war.Wheat had been destroyed and some lumber burned.It waepolnted out that a third of the output of driedpeaches had been destined for army use. Witnesseswere repeatedly asked if they had heard sentimentsexp ressed by the I. W. W's that were unfavorableto the Government. Th is was particularly mirth­provoking to the defendants, as for some time pastbaiting the Gover nment has been a fashionable

88

· amusement of th e privileged classes in Ca lifornia.Perhaps more than enough instances have been

cited to sh ow the nature of th e prosecution. Themere spectator. had he been allowe d to be present,would at first have laughed with the defendants overthe futility and absurdity of the wh ole attempt, ove rthe absolute imp ossibility that anyone should takethis se rio usly. But as the days wore on and thefaces of the j ury grew more and more se t , till itseeme d that the shadow of convict ion creeping overtheir eyes had obscured the light, t hen a ch ill wouldhave crept up the spectator 's spine. Who, he woul dask, is t his prosecutor wearing out the days andthreatening. with tragic farce. t he life and liberty ofalmost half a hund re d persons ? Who is the pros­ecutor? The United States Government : we thepeople-s-every man and woman of us; we a re ac­cumulat ing crimes to fit the punishment, stra iningla w and truth till some way be found of silencingthose who do not a gree with us in favoring the oldorde r. The Espionage Law may keep a man mutefor twenty years : Let a crime be found to fit it . Butthe psychological effect of imprisoning a man forhis beli efs is notoriously bad ; it be gets ma rtyrdoman d disciples. Let us therefore transform these lea d­ers of their fe llows into common criminals, ebove a llinto destroyers of property. Let these outcasts, th eserags and bottles of mankind, this inflammable huma nwaste, be utterly destroyed. The shadow is creepingan d creeping-this time the shadow of a blinded fig­ure bereft of sca les.

Little has been heard about the Sacramento trial.Idle spectators a re not admitted. I. \\T. \V: s arethreate ned with arrest if t hey besiege the door of

the courtroom. Friends of the de fendants mustmeet the challenge of the marshal. The g eneralpublic stays aW8)" from choice or prudence. At thepress ta ble BTe a man from a local daily and two orthree women writing for wee klies . A young manfrom the Associated Press looks in to k ee p tra ck ofth ings. But there is no " story" he re; 80 many h un­dreds, nay th ousa nds of Am erica ns are bei ng triedor awaiti ng trial, or sufferi ng imprisonment fo r theirconvictions, that the st ory no longer contains an ele­ment of news. The jaded public fails to quickenwith eithe r sympathy or indignation ; it is bored bythe Espionage Law.

Another unusua l element that has deprived thistrial of the propaganda of publicity is the situationamong the defendants themselves. Ea rly in theirimpr isonment they retained counsel , but 8 S themonths passed and the)' were prevented from dis­cussing developments with ou tside friends or \\oitht heir fell ows who were out on ba il, se ldo m hearingfrom their co unse l, t hey lost confidence in legal d e­fense and agreed a mong themselves to go on a strikeof silence. Meantime those who were out on bailhad continued their preparation for defense andwere not pa rty to the so-called strike. The compli­cations ensuing are unfortunate. W hat might per­haps have been an unassaila ble wall of s ile nce hasb een breached by the defense of the three. On theother hand , this slender voice of protest is a lmostmuffled by the sile nce of t he forty odd. The puzzledj urors may be asking : "If they a re n't gu ilty, whydon't they say 50?" It is easy to understand thestate of mind advocating the silent defense. - Whenone has been arrested fifteen times in four months..

,

as a " vagrant, " a lthough actively employed andunder salary aU th e time ; wh en one has been re­peate dly arrested, held for days and then dlsmtseedwithout m al , only to be re-arrested the followingday ; when the crimes charged against one multiplyover night, is it to be wondered at that the defend­a nts wea rily say. "Wbat'a the use f"

Yet it is a serious qu estion if such an opportunityfor public ed ucation should be thus withheld. weshould be made to recognize an d face our re spon­sibility in th e matter. Perhaps, as Robert Whitakersays, we need not fewer good men in jail. but morea nd more until we will no longer end ure injustice.

Sacramento, Cal. , J anuary 13 .(According to Associated Press d ispatches of J a n­

ua ry 16, all forty-six of the defenda nts were found .gu ilty by the jury. which return ed the verdict aft erbeing out a bout an hour. J udge Rudkin's charge isq uoted in part as follows:

" The mere fact that these defendants are Indus­trial Workers of the World should not justify a ver­diet of gu ilty. The fact that they may be fou nd tobe eonsclentioua objectors to wa r should not be heldagainst them in the consideration of this case. Opin­Ions which they hold in oppositio n to wa r a nd whichundeniably stand a lone are not a n evidence of guilt ."

Referring to the "sil ent defense" of forty-threeof the defen dants who have spoken no word andhave bee n unrepresented by co unsel throughout thetrial, Judge Rudkin said that such sile nce shouldnot be held against t hem.

Private telegraphi c advices are as follo ws:" Blanket verdict guilty; forty-six defendants in

sixty-five minutes. Judge Rud kin's charge remark-

36

I

a bly fair. int imating clear ly th at Individuals underthe blanket ind ictment had not bee n shown to beconnected with acts of arson or sabotage a nd that noindividual co uld be held under the law on a ccountof his economic or political views or held respon­s ible fo r the politics of an)' organization of whichhe mig ht be a member . His charge was what isknown as an 'acquittal charge.' "-Ed.)

Jury Disregards Judge's InstructionsJudge Frank H, Rudkin gave instructions to the

Sacramento jury th a t would have resulte d in a ver­dict of "Not Guilty" if the j ury h ad followed them,Instead it went blandly out and came as blandly inagain in seventy minutes with a verdict of guilty forall forty-six on all counts .

It is possible that the JUI")' did not unders tand thej udge. Anyone who has watched that j ury throughthe trial can see that that is probable. Or perhapssomething in th l way Tombstone Duncan looked a tthe m was interpreted to mean: "Pay no attenti on tothe judge; he has to say fa ir t hings in his position,but you don 't have to heed him, YOU know." Orperhaps the jury had become soure d on the j udgebecause of h is occasiona l curt words to the prose­cution wh en that a ug ust gro up of Jegal luminariessaid or did someth ing obviously improper. Anyway.they treated the judge a nd his instructions with sub-­lime conte mpt ,

J udge Rudkin firs t ex plained the fou r di fferentcounts : Firs t. conspiracy to overthrow the govern­ment: second, conspirac y to intimidate. threaten andoppress certain employers ; third, conspiracy to per­sua de 15,000 persons to evade the Select ive Service

S7

Act; and fourth. conspiracy to violate the Espio nageA ct.

" Gentlemen of the Jurr,' he said of the firstcount, " these me n are charged with conspiring tooverthrow and put do wn the government of th e Unit­ed States and preven t the carrying out of its la ws.Before you can find them guilt),. you must find thatthe authority of t he government its elf was opposed.U you find these men to be arrayed against a cl ass ,that is not sufficient to constitute conspiracy a gainstthe government. There must be a concrete attemp tto interfere with the government and prevent or de­lay the carrying out of its la we."

W a . There a Con.piracy ?

Of th e four counts in general he said :

" While there a re four counts . conspiracy ischarged in ea ch. In each case ther e must be provedsome overt ac t d irecte d against the particular fed­eral la w ment ione d in t hat cou nt.

" The jury will be j ustified in bringing in a ve rdictof guilty of consp iracy whe n the government hassat isfied them beyond reas ona ble doubt that someunla wful act against each of the federal la ws hasbeen committed by the defendan ts conspiring to­ge ther; when the government has satisfied th em be­yond a reasonable doubt that everyone of the de­fendants was in the conapiraey ; and when the gov­ernment has simila rly sa tis fied them that the con­sp iraey is co nsisten t with a rational theory.

" Consider each count separately in this ma nner.Find. ask the ques tio n : -' Vas the re a consp iracy?'If you are not satisfied that there was. proceed nofurther, but return a verdict of not gu ilty. If yo u

8.

are satisfied that there was a conspiracy. next con­side r whether or not these defendants took part insuch conspiracy. If you a re convinced that theydid so, you are justified in bringing in a verdict ofguilty'"

Overlook Mere " Yran agreuions"

Following are th e chief ins tr uctions given by thejudge after his ge ne ral and preliminary instruction:

"The prosecution must prove to yo ur satisfactiona nd beyond any rea sona ble do ubt that a conspiracyactua lly existed , and not only . is this necessary, butthe prosecution m ust also prove beyond any reason­ab le do ubt and to yo ur entire satisfaction that a co n­sp iracy existed ha ving for its purpose the particularthing charged in the indictm ent.

" For instance, it is charged in the first count ofthe indictment that the defense conspire d to by forceprevent the execution of certain laws of the UnitedStates . If the prosecution should fail to proveagainst these defenda nts a conspiracy whi ch ha d forita purpose that particular design, no matter whatothe r conspiracies or what oth er transgressions ofthe law the prosecution might prove, it would never­the less be your bounden duty to find these defend­a nts not gu ilty under sa id charge.

" You are instructed to ca refully d isti ng uish a nddiscriminate between what may appear to you to betransgressions of the Jaw, having nothing to do withthe crime of conspirac y, and what may have somebearing upon the particular conspiracy charged. Nodestruction of property that is not in fu rtherance ofa conspiracy ca n be taken into consideration.

89

Corucientioua Scruples No Crime"If t he p roof of the prosecution merely shows that

the defend ants exp ressed a conscientious objectionto th e dec laration of war or continuance of a stateof war between the United States a nd Germany, thenand in that event you must find them not guilty.

"None of the defenda nts can be fo und guilty byreason of the fact t ha t they may have stated, duringtimes of war. that they did not be lieve in war, orthat they did not believe in the so-cal led Conscrip­tion Law.

" You are instructed t hat you are to try these de­fen dants and to consid er this case in the same man­ne r that you would a ny other case.

"These defendants are on trial. not their organi­za tion.

"The indictment is not in itself evidence of guilt."You are instructed to gin each d efendant sep­

arate considera tion .

Whole Chain Break. Down" It is th e bounden duty of the prosecu tion to prove

every material fact by more than a prepond eranceof evi de nce. These defend ants a re presu med to benot guilty at eve ry sta ge of p roc ed ure. If a ny cir­cumstance in a se ri es of circ umstances d ependedupon to convict anyone of these d efendants is want­ing. or a ny fact in such se ries of acts remains un­proven to you r sa ti sfaction bey ond reasonable doubt,the wh ole ser ies of facts or the wh ole cha in of cir­cumstances faUs, and yo u cannot find such defend­a nt guilty.

"The pro secut ion ca nnot fasten guilt Upon anyd efendant by suspicion, or by the mere fact that

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t he defendant may have been a member of an or­gan ization known as the Ind ustrial Workers of theWorld, nor by a mere association of parties. Neitheracquaintanceship. friendship nor association withpersons proven to your satisfa ction to be guilty, isto be taken ae conclusive proof of the g uilt of anyof these defendants.

" If you find the evidence to be consistent withthe theory that these de fen da nts are guilty. an d alsoconsistent with the theory that they are not guilty,it is your duty to re turn a ve rdic t of 'Not Guilty.' ..

Labor Has Right to Defend

It is significant that Judge Rudkin ga ve a specialinstruction to show that labor has a right to defendits accused members . That is self-evident , one wouldthink. But Spec ia l Prosecutor Tombstone Duncanann oun ced gravely once during the t rial t hat hewas going to prove that certai n of these defendantsactually attended the trial s of other members , spokeand wrote in their beha lf, helped to raise fu nds fortheir defense a nd unde rtook to interest others in thecase. These things he was going to charge upagainst members of labor orga nizatio ns. They hadno legal right to de fen d fellow members. he broadlyimplied. (Perha ps this be lief of Tombstone's ac­counts for the fact that 80 ma ny of the forty-six areon the ind ictment merely because they did defensework for men on ear lie r indictmente .I Later in thetrial Tombstone Duncan denied he ever said sucha thing, but it was in the record. And enough fussW 88 made over labor's RIGHT to defend itse lf incourt 80 that the judge included the following para­graph in his instruction: ..

j

,--- - - - ---- -

" The law guarante es every person accused of acrime the right of defense by counselor his or her

. own choice ; and the fr iends or relatives of such ac­cused person or fe llow members. of the same organ­ization have a perfect ri ght under the law to renderassistance to such person by supply ing money forattorneys, by organiz ing for suc h purpose, or by anyother legitimate means."

_Hib Coutts and 'Dymond

Coutts and Dymond were mentioned, though notby name, in the following instruction given by thej udge.

" If you find the prosecution has produced in thiscase certain witnesses who admit that they took partin the commission of the offenses charged in th is in­dictment or from whose testimony you are sat isfiedof such participation, such witnesses are to be cor.­sldered by yo u as accomplices and co-conspirators,and the evidence of any such accomplice or co-con­spirator must be received by you with great ca ution.unl ess such evidence is corroborated by the evide nceof other persons who are not a ccomplices or co-con­spirators.

"You have a right to take into consideration thedemeanor of a witness on the stand in consideringa nd weighing the credit to be given to his testimony.You have the right al so in considering the testimonyof a witness , to take into conside rat ion the fact, suchf act be proven, that he either expects or hop es forimmunity from punishment himself or that he hasbeen granted immunity from punishment and is tes-­tifying in this case by reason of having been givenimmunity or freedom from punishment.

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"If any witness wilfu lly testifies falsely on an ymaterial fact, you ha ve the right to throw out allh is testimony except such part as may be corrobo­rated by the tes timony of other witnesses."

Judge Rudkin closed with the Instruction thatth e fact that forty-three of the defendants had con­d ucte d a " silent defense" was not t o be held againstthem. •

Then the j ury went out and fo und the defendantsIruilty .

A Defendant .Speaks"W~ have kept silence throughout the tria l; now

we speak out. We do not ask for mercy, but we dointe nd to bring out some of the facts that have beenhushed in this trial to show the mesh of error andperjury that makes up the 'evidence' aga inst us,and-e-tc get a few things off our chests.

"You have heard of 'direct act ion' and 'vio lence'coupled throughout the trial by Prosecutor Dun­can. You will never find an instance where the twoideas are coupled in the literature of the Industria lWorkers of the World. ' Direct action' has been per­sietently twisted out of its evident meaning and made~ incl ud e ideas to which it is not remotely re lated.

Worke r Will Tell Bou

"Shall I tell you what 'direct action ' really means?Every employe r claims the right to administer hisbusiness as he see s fit. He changes hours, wages,cond itio ns of labor as he pleases. But the work­man is taught that when he wants to make any suchchange h e must go to court.

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" The 1. w. W. has taught a nd "ill continue toteach t hat t he worker on t he job shall tell the bosswh en and wh ere he shall work, how long. fo r whatwages and under what condit ions. It will contin ueto teach th at gra dually th e worker will get morea nd more power until finally he will take over theindustries.

" We intend to go ahead with the One Big Unio n.We intend to bring t he workers, a ll the workers,into one big union , and we don 't seek a statute toa uthor iz e it , eit her . We kn ow that no body of men,not work ers, would ever make such a stat ute . Weknow that at a convention of bourge ois ' revolut ion­ists' held in France on Sept . 28, 179 2, attended bya ll t he great figure s of the French revolu t ion, a ndeven our own Thomas Paine, a law was passed t hatmade it illega l for working men to orga nize. In theface of op positio n like that t he worker has goneahead and won what he has won.

Dealing wi th Men." We int en d to go on far the r , to go ahead fran kly .

openly, forcibly ...when counse l was talking about 'd irect ac tion'

and 'violence', he left out one very important inci ­den t narrated in Vin cent St. J ohn's boo k. Th at wasthe incident of McK ee's Rocks. • .. You are notpl aying with children. You are dealing with mennow who t horoughly understand conditions as t heya re.

"Now for some of the facts abo ut th is case:" The prosecuti on has slated in court that a ll the

d efe nda nts are members of the I. W. ·W. That is nott ru e. W . H. Fa ust has not been a member for three..

and a half years, He was prospecting out here inthe hills and was arrested on the testimony of peo­pl e who a year ago had jumped his cla im. FelixCedno is not a member. And furthermore he neverin his life wrote a letter in Engl ish for the reasonthat he cannot write a word of Engl ish.

"F. A. Lamar, Horst's detective, swore he heardFreddie Esmond, Scott and McGowan say I washand ling the picket line at Wheatland . I was in theMarysville j ail during the whole period of the picketline, and the records will prove it . An d isn't it astrange thing that wi th wheatland only a few milesaway, not one witness was brought from there totestify ? Couldn 't they get one witness in the wh olep lace instea d of going afield a nd bringing in a de­tective?

" Now for Next Perjurer !"

" Now as to t he other perjurers. Coutts! I hard.If know what to sa y about that unfortunate crea­ture. He is a product of the times. But Duncanhimself admitted that Coutts might have lied. Thea ttorney for the prosecution admits that during thetrial h is foremost witness may have lied on thestand! Can you ex pect us to come into court withany great respect for la w that condones perjury ?

" The lid of that bean pot there is not sea led(pointing to the earthe nwa re retort t ha t Coutts saidhe made in the Oakland hall for the manufacture ofphosphorus) . If phosphorus were made in that re­tort, the gas would have left nothing alive in theplace. And th e retort could not possibly have beenmad e in the Oak land hall because strong heat is re­quired in the making of such an earthen furna ce and

we had nothing there, not even a wood stove."O'Connell was in a hosp ital, as records will show,

at the time Coutts had him at \Vestwood. Couttshimself was ordered out of camp because he stolegoods from his fellow workers .

"Dymond said I was pro-Ally and against the war!And he charges me with being a gainst the war in1916 wh en, if you remember, President Wilson was"to proud to fight'.

" I am against war, just as I am ut terly and abeo­Iute ly against the wage syste m. But I would nomore make my puny effort to hamper the exec uti onof the war than I \.....ould refuse to comply with therequiremen ts of the wa ge sys te m as long as we haveit with us. If I had been called, I would have an ­swere d the call , just as I go now and find myself II.

master under the wage system.

Ne ver a Good W ar

" Th ere never wa s a good war nor a bad peace.But th e war in Europe was an absolutely necessarya nd inevitable thing, a readjustment of outwornconditions. Germany was la psing over into the pres­ent da y of the feudal system and had to be elimi­nated. Th e Junker gang had no more conceptionof its place in society than if it had come down fromthe Middle Ages. War IS a survival of the bestialstate.

" Only one generous, kind ly do ctrine ever caraeinto the world, on ly one that will put individ ua l re­sponaibility whe re it belongs. That ig the doctrineth at might is right.

"In 1914 there were at a ll technical schools, tel­leges, univers ities and other higher educational ia-

,.

etitutions in thie ecuntry, 266,000 persons. Out of110,000,000 only 266,000 have a chance for realculture. Set against that the fact that in the sameyear there were in this country more than 500,000public prostitutes, not counting the thousands ofpoor girls that are doubly exploited by t heir em­ployers. That is what we have to show as theflower of our civilization, a civilization that couldseize Freddie Esmond, a seriously sick man, andmake him sle ep on the jail floor without bedding formore than two months.

"I am against th is, against the civilization thatproduces such things. 1 hopeto see the day whenthere shall be a different degree of sweetness andlight in this country.

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