JOHN LOONEY
"If this case were just that of murder committed by one man acting alone, the importance of yourverdict would be of small significance, compared with the importance of your verdict in a criminal case where the members are part of an organization. True, the society has no doubt a great many aims that are desirable to improve the welfare of the workingman. But it has one aim, one vital aim, in its platform to bring upon it the condemnation of thinking, sober men and women residing permanently in the State of Washington, and that is sabotage.
"We are not claiming that the killing of Jefferson Beard was in the exercise of sabotage. We are saying that sabotage along with the conscious withdrawal of efficiency, sabotage along with the destruction of property, may also mean crime.
"The I. W. W. members did not come to Everett for the purpose of employment; they were men who were wanderers upon the face of the earth, who desired to establish themselves nowhere, and none of them, as far as this witness stand is concerned, expected to work in Everett or to put sabotage in effect in Everett by working slow. The only way they could use sabotage in Everett was by the destruction of property. The mayor became alarmed, and the sheriff, after their repeated threats in their papers. But whether you believe sabotage to be good, bad, or indifferent, really is not vital in this case except as a circumstance.
"Now, the Wanderer. The Wanderer did not happen the way they said it happened. The sheriff did shoot after they refused to stop. The sheriff did hit some of them with the butt of his gun. The sheriff brought them into Everett because they constituted an unlawful assemblage. The sheriff did the only thing he could do. He filed charges against them and they were arraigned in court. Twenty-three men cannot be tried quickly when each one demands a separate trial by jury. Twenty-three trials would stop the judicial machinery for three months. They could not be tried and so the sheriff turned them loose. Maybe he did hit them harder than he should have. Policemen do that! Sheriff do that! Lots of time they hit men when it is not necessary. Hit themtoo hard, sometimes. They don't always understand exactly what they are supposed to do. But the I. W. W. exaggerated the matter and used it to incite retaliation on the fifth. So the Beverly Park incident, and all other incidents, if true to the last syllable of the defense testimony, merely in this case extenuated the motive on November 5th.
"Now then, why did the State select Tracy? The State's evidence was to the effect that Tracy was not only a member of the conspiracy, but was firing. Several State's witnesses recognized Tracy. There was another reason. What was that? Some of these men, some of these boys, flitting here and there from job to job, with never more than a dollar or two in their pockets, were inflamed intentionally by people who misrepresented conditions. They did not have any right to be inflamed; they did not have any right to go to Everett and they are guilty of murder if they went up there to retaliate for any wrong, actual or conceived. But the State has preferred to put on first a man who was in the forefront of the conspiracy; the man that appeared to be an important cog of that conspiracy, and that man is Tracy.
"Tracy knew that a great many people of Everett were alarmed and disturbed. Tracy knew that the I. W. W. did not want anything in Everett, had no interests there, no friends there except as they were disturbing conditions. Tracy knew the purposes and Tracy went back to Seattle so he could lead this excursion to Everett. Tracy is a man of determination. He knew the situation and he was prominent enough to be selected by the organization as a stationary delegate. And if any man knew what they intended to do in Everett, it undoubtedly was Tracy. So, regardless of whether he fired or not, Tracy was one of the men who were on the inside. Tracy is a part of the conspiracy that happened. But no man, my friends, on that boat, that went up there with a common design to break the ordinance has been sinned against because he is in jail.
"Now, my friends, you want in good faith to follow the instructions of the court. It seems to me that the only question you have to decide is the one the court told you to decide—Was Beard killed unlawfully by a shot from the boat, and did Tracy aid, encourage or incite that killing?
"The murder of Jefferson Beard was a premeditated murder. Following the instructions of the court, separating the wheat from the chaff, and deciding that one question, we of the State are confident that you as jurors and good citizens, as honest, sincere and conscientious citizens, will protect Snohomish County—we believe that your verdict will say 'We are convinced, beyond a reasonable doubt, that Tracy is guilty, and, being so convinced, we are going to protect Snohomish County as we would our own.' I thank you!"
Vanderveer handled the case from two different viewpoints—that of a first degree murder trial and also as a section of the class struggle. His address was a masterly array of invincible logic and satire. Omitting his readings from the transcript of evidence, his speech was substantially as follows:
"This cause is, as the counsel for the state has told you, one of momentous importance not only to the defendant but to a class—a large class of people of whom today he stands merely as an unfortunate single member, fighting their battle.
"We do not ask in this case for mercy, we do not ask for sympathy, but it is essential, absolutely essential that we should have cold, stern justice; justice for the defendant, justice for those who have oppressed him, those who have denied him his rights. We hope this case is the beginning of a line of prosecution which will see that justice is done in the Everett situation.
"It is not the defense who outlined the issues in this case, it was the State who determined that. They have chosen their fighting ground, and we had to meet them on that battle. In the beginning of this case the State, thru Mr. Black, told you that it would prove a conspiracy of very formidable proportions,a conspiracy in the first place to commit acts of violence and to incite acts of violence, a conspiracy to commit arson, a conspiracy to overrun all law and order in Everett and bring on a condition of chaos. The claim was a very formidable one. The evidence has been very silly. The State ought to apologize, in common decency, for ever having suggested these things.
"What is the evidence about the fires? The fire marshall's report, made by a man who would naturally try to enlarge the performance of his duties and impress upon the public the manner in which he discharged them, reports only four fires of incendiary origin for the entire year. Every one of these were discovered before they did five cents worth of damage. Who had notice of them? Was it the I. W. W. who set them or was it Reese or some paid employe of the Pinkerton Agency? Can you conceive that an organization embracing as many members as this does, bent upon the destruction of Everett, could not set one fire at least that would do some damage. It is nothing but a hoax!
"As to force and violence, who did they put on to prove it? Young Howard Hathaway, a mere boy, whose father represents some mill companies in Everett. Then Sheriff McRae, and McRae couldn't tell you one thing that he heard at the street meetings. Then they put on Ed Hawes, the big brute that out at Beverly called the little boy a coward, a baby, because he wouldn't stand there and be slugged with guns and clubs. And what did Hawes say? That he looked up sabotage in the International Dictionary! And you can search that book until you are black in the face and you won't find a word in there about sabotage. Why, if sabotage is such a terrible thing, did Hawes, having heard all about it at the street meeting, have to go home to look it up at all?
"At these meetings there was not one thing said that could invite criticism, there was not one thing said that could justify or invite censure or abuse; there was not one disorderly thing done but was done by the officers of the law themselves, and theywent in recklessly, without excuse, without right, they clubbed Henig, they clubbed Carr, a former member of the council, and they roughed women around and knocked them down. Why? Because these people were mill owners, their hirelings and their representatives, who had been instructed in the propaganda of the open shop by employes, aides and emissaries of the Merchants' and Manufacturers' Association.
"A lot of people went to the jail one night, a thousand, maybe. They hooted, they cat-called, and they hissed. Is it any wonder they did? Ladies and gentlemen, I want to tell you there is no surer verdict on earth than the verdict of a crowd; and the verdict of that crowd condemned what the deputies had done.
"Finally they say there was a conspiracy on the 5th of November to go to Everett and to hold their meeting at all hazard, to brook no opposition, to ride rough-shod over it, to oppose everyone and anything that stood in the way of accomplishing their purpose. I ask you to think just for a moment how foreign that is to everything you know about the I. W. W. and their operations and behavior in Everett. Not one witness for the state could tell you an incident where one of them resisted arrest, could tell you an occasion where one of them had advocated violence, could tell you one occasion where any one of them had committed any acts of violence.
"These people wrote to Governor Lister calling his attention to the violations of the law on the part of the officers of Everett; they wrote to Mayor Merrill, enclosing a copy of that letter and calling on him to restore the order that had been violated by the officers of the law; they scattered handbills all over Everett, among its best homes and in its business streets, calling upon the good citizens to come to their meeting on November 5th at Wetmore and Hewitt, to come and help maintain your own and our constitutional privileges; they mailed to the citizens of Everett on October 30th, seven or eight hundred copies of a little pamphlet calling uponthem to intervene and stop the brutality of officers of the law; they questioned Governor Lister at a public meeting and again called his attention to the conditions in Everett; they called in the reporters, called the newspapers and notified the editors that they were going to Everett and asked them to have representatives present: Are these the acts of conspirators?
"You know how that meeting was called and why it was called. You know it from ministers of the gospel, you know it from the lips of those whom you cannot help but believe. And it was called for Sunday, the day when people ordinarily resent disorders of the kind that had occurred there. It was called for the daytime, when ordinarily abuse and violence are not attempted. And this big crowd went up there on this fine Sunday afternoon because in number there is strength and in numbers there is protection against brutality.
"At first the deputies had taken out one or two and abused and beaten them; then they had taken five or six; they had taken eighteen; finally they had taken forty-one. But I ask you, would you believe it possible that they could take two hundred or three hundred people in broad daylight and do to them what had been done to the others? Yet the evidence in this case shows convincingly and conclusively they intended to do substantially that thing. They intended to run those men into a warehouse; they didn't intend to let one of them get away. And had they gotten them into that warehouse you don't know, I don't know, nobody knows what would have happened!
"That is the evidence of conspiracy in this case. They have claimed no other conspiracy; they have offered no other evidence of conspiracy, either to set fires or to incite violence, or to override all opposition on November 5th. Their evidence doesn't stand even if unanswered—and no evidence could be more successfully answered.
"What evidence is there that Tom Tracy had anything to do with such a conspiracy, if there wereone? Their most willing tools, Auspos and Reese, don't say a word about Tracy.
"What does the identification by McRae amount to? He identifies Tracy as the man who leaned out of the window and shot at him. Now at the time this shot was fired McRae had his back turned to the man who shot it. He says himself he did, and he was shot thru the heel, which seems to prove it. That, by the way, suggests to me that it was not an I. W. W. who shot McRae. The man who shot him must have thought McRae a hero, like the gentleman of mythological fame who was killed by an arrow thru the heel which no I. W. W. does, I assure you. Or else he thought that McRae wore his brains there.
"But I am not going to discuss McRae at great length either now or at any other stage of this case, because the greatest kindness I can do him is to forget him. The man is a perjurer! He lied! He was not mistaken. He deliberately, cold-bloodedly lied about almost everything in this case wherein his conduct as an officer was questioned. He lied about 'Sergeant' Keenan! He lied about shooting at the "Wanderer," and you saw the bullet holes. He lied about Berg and about Mitten, and finally, and last of all lied, and we have proven it conclusively, about being out to Beverly Park.
"Bridge's identification of Tracy does not agree with that of Smith, and Bridge does not even agree with his own testimony given at the coroner's inquest. Smith picked out a photograph and said it was Tracy and that picture resembles Tracy about as much as I do some of you jurors. Bridge and Smith say that Tracy fired three shots, and Hogan says he fired only one. And you know, ladies and gentlemen, that Hogan did not see this man at all. You know that he did not even see the window at which he pretends this man was sitting when the shot was fired. You know it because you went there to the dock and you saw the boat lined up to a mathematical certainty by the shot marks, and you saw a photograph taken with the camera placed byJohn Hogan exactly where he said he was standing himself. And there wasn't a one of you who could identify Bob Mills, with his long nose and angular features, with everything that makes identification easy, when he was in the position attributed to Tracy. And when you came around from there to where you could look directly at the place, the reflected glare of the sunshine left nothing but a blank background.
"There were one hundred and forty deputies looking toward the place where the first shot was supposed to have been fired. They have produced on the witness stand only about one in ten. We challenged them to bring them all on, we dared them to do it, and Mr. Cooley said 'I accept that dare!'—look it up Mr. Cooley on page 1802 of the transcript—but he did not dare accept that dare. Mr. Cooley knows what those nine-tenths would testify to. Twelve out of their sixteen witnesses who testified about the first shots said that their brother deputies were mistaken as to even the place on the boat where the first three shots came from.
"I venture, ladies and gentlemen, that with a bit of the kind of work the State has employed in this case, a little bit of the same zeal that was employed on Auspos, a little bit of the same zeal that was employed with Reese, a little bit of the help of McLaren of Los Angeles, I can take these one hundred and forty-five men and pick out four men who will honestly and truthfully testify that they saw anything, and I say that with no reflection on their honesty either, because the power of suggestion is enormous. It is not surprising that four people have come here to say they saw Tracy. It is not surprising that three out of the four should have been proven, conclusively, convincingly and absolutely, not to know what they were talking about.
FELIX BARAN
"The court has told you that in this case it is not a question of who shot first, not a question of which side shot first, it is a question of who was the aggressor, who made the first aggressive movement,who did the first hostile thing. The man who did a thing to excite fear was the aggressor, and that man was McRae when he pulled his gun. McRae clearly did that before there was any shooting.
"In determining who the aggressor was, you are entitled—not only entitled but must take into account the past behavior of all parties. And what does that show you? Was it the I. W. W.'s who had never offered violence, who had never done an act of violence, who had decried and deplored violence, as members of their audiences told you, and advised caution against it? Or was it McRae and his deputies?
"It is only formally correct to refer to these as deputies. They had commissions, but in nothing else in the world did they bear the remotest resemblance to officers of the law, not in their conduct, not in their training, not in their purposes, not in anything. They were the hirelings of either the mill owners of Everett or the Commercial Club. Did you ever in your life before hear of officials taking their instructions from representatives of an industrial movement? Did you ever before hear of deputy sheriffs being instructed in the propaganda of the open shop, being instructed in the methods employed at Minot unlawfully to prevent street speaking? That is where the first mistake in this case was made. First in the selection of that kind of men; second in the deliberate attempts which were made to color their actions, to pervert them, to make them the tools of the employers.
"That is the reason Henig and Carr were beaten, that is the reason Feinberg and Roberts were beaten, that is the reason men and women were knocked down in the crowds, that is the reason that this boy, Schwartz, was taken out by McRae and chased zigzag down the road in mortal terror of being run down by the sheriff's automobile, that is the reason 'Sergeant' Keenan was hit over the head with a gun, that is the reason James Rowan was taken out and beaten black and blue. How do you suppose Rowan got those marks on his back? Did he putthem there for fun, or were they put there by somebody else's rotten, dirty brutality? If you didn't know a thing about him except what you know about Beverly and these other incidents, and it was deep darkness where this happened, I venture you would all say off-hand, 'It must have happened at Everett, anyway. There is no place else that I know of where they do such things.'
"Black says the "Wanderer" has been greatly misrepresented to you, that the things we claim happened did not happen there at all. Well, there is a lot of evidence that they did happen. There are a lot of people who could have denied it. There are a whole crew of deputies who could have come up here and denied it. Why didn't they? Because they were ashamed of it and they knew they could not stand the grilling that was awaiting them in the court room. It is true, certainly! And I say here that nothing but providential intervention prevented McRae on that day from being a cold-blooded murderer! That is the manner of man you are considering. You are considering whether he was the aggressor, he or the people he shot at.
"Counsel says that Louis Skaroff lied. Now I am very frank to confess that when we produced that story on the witness stand I feared you would not believe it, not because I doubted the truthfulness of his statement but because the story itself is so brutal and inhuman that I questioned whether there could be found anywhere in the county twelve persons who would think such things could possibly happen just thirty miles away. But when one of their own witnesses went on the stand here, in rebuttal, and told you that Louis Skaroff came out of that room with his arms above his head, crying, with the blood running from his finger tips, I knew that you knew that Louis Skaroff had told the truth.
"The state has been very reluctant in this case to admit that there were rifles on the dock, because if the deputies went there with rifles there was a reason for it. You could not find a rifle on that dock until we proved—what? That rifle shells were aroundthe dock in great numbers; we proved it by innocent, clean little boys who picked up the shells; until we proved by witnesses that the rifles were there and were being shot; until we proved by a rifle bullet with human blood and a man's hair on it that the use made of the rifles was a deadly one.
"Who was the aggressor? Even now the State doesn't like to admit, because the State knows it is fatal to their case to admit, and notwithstanding hopeless to deny, that there were helpless men in the water being shot at. They do not like to admit that a man was so impressed with the inhumanity of the thing that he ran from the depot to the boat house hoping to effect a rescue of the men and was stopped by the armed deputies. The State does not like to admit the evidence of their own deputy witness, Groger,—whose actions I want the counsel for the state to explain and justify if he can—who repeatedly fired at a man who was trying to untie the boat so the unarmed men could escape.
"Counsel said that if there was any intention to start trouble men would not have lined up as they were on the dock in an exposed position. And I ask you, if there was not an intention to start trouble why were they kept in the warehouse until the boat had almost tied up? If that was not an ambuscade, what on earth was it? If they did not intend to start trouble why was it McRae waited until the line was out and made fast. Why was it, then, he did not say to the captain, 'Take your boat out?' He said he was afraid they would go somewhere else. Well, when he told those boys they could not land he expected them to go away. Or did he expect them to go away? Which was it?
"The manner in which McRae handled this thing indicates nothing so much as that he intended to get them there and administer to them another of the things that he calls a lesson, another of the things that other people call infamous, damnable brutality.
"Counsel says there have been mistakes made. He doesn't want to apologize for them, but clearly he doesn't want to be held responsible for them.There were mistakes made. Beverly was one! The "Wanderer" was one! From the beginning to the end of all their operations in Everett everything has been a mistake—a mistake because the ordinary processes of law and the rights of other people were ignored. There was no ordinance prohibiting speaking. The boys were yielding implicit, careful obedience to such law as there was. McRae unblushingly tells you that the reason he made arrests was because there were labor troubles in Everett and the shingle mill owners didn't want things embarrassed by the truth, by the disclosures contained in this little report of the Industrial Relations Commission.
"They were not afraid of the I. W. W.'s going up there to incite violence, to advise disorder, to invoke a reign of terror. Reigns of terror are the employers' specialty! They were afraid of cold fact. Never a man went up there to speak on the street and used that little Industrial Relations report but was thrown in jail for it—Thompson, Rowan, Feinberg, Roberts, all.
"It's nice to enjoy the powers, the position and authority of a dictator who can repeal, amend and modify, ignore, disregard laws when it suits his fancy, but it's kind of tough on other people. That's what McRae did!
"On the 5th of March, nearly nine weeks ago, His Honor called this case from his bench 'State versus Thomas H. Tracy,' and my friend Mr. Cooley rose from his chair and said 'Your Honor, the State is ready.' I say to you, Mr. Cooley, you slandered the fair name of your state! What has the State of Washington to do with this thing? The name of the State of Washington in such a case as this should stand for law and order and decency. The State is supposed to protect the innocent against abuse and injustice and you who are now running this case do not now maintain these things, or if you do, you protect them only when convenience requires it.
"It is not the State of Washington versus Thomas H. Tracy at all, and if the decent people of Everett who know the facts could decide what course thisaction should take it would never be here. Even the title of the case is a mistake. It is the case of the Commercial Club of Everett, the mill owners of Everett, against Labor. This is an attempt, just as all the actions for months have been an attempt, to keep Labor out of its rights in Everett. The same people who took possession of the machinery of law in Everett, who took possession of the sheriff and furnished him with guns and clubs and murderous things like that and instructed him how to act, the same people who employed detectives to set fires in order that they might manufacture evidence and public sentiment against these boys, those same people are today prosecuting this case.
"I don't know where Governor Clough was on November 5th. I suspect he was not anywhere where there was any danger, but I know the smoke had not left the decks of the Verona before he was hot-footing it to the telegraph office,—Governor Clough, not the prosecuting attorney, not the sheriff, nobody but Clough and Joe Irving, the man who was so drunk that he beat up Schofield,—to send a telegram to Judge Burke of the Chamber of Commerce of Seattle, to the Mayor of this City and to the Chief of Police of this City to arrest the whole bunch of them.
"Then right away they got their other emissaries at work, Reese and Smith, down here with two fingers out of the door of a darkened cell, deciding for the State of Washington who should be prosecuted in this case, and H. D. Cooley, who surely then was not a prosecuting attorney, giving them legal counsel and directing their energy, taking out the men, preparing statements, and getting ready for the work he was going to do in this case, because his employers wanted it.
"There is a conspiracy in this case, a conspiracy supported by evidence, a conspiracy of men in the Commercial Club to take over the machinery of government, and by it club these fellows out of their rights, club them out of Everett, club them out of all contact with the workers in order that theymight not bring to them the gospel of their organization.
"But I say to you, ladies and gentlemen of the jury, that this struggle, the struggle of Capital against Labor, the struggle of the Commercial Club against the I. W. W., which is just one phase of the bigger one, this struggle is going on in spite of Cooley, this struggle is going on in spite of McLaren, this struggle is going on in spite of Arthur L. Veitch of the Merchants' and Manufacturers' Association, this struggle is going on in spite of McRae, this struggle is going on in spite of the Commercial Club, because it is founded on a principle so big, so wholesome, and so decent, so righteous, that it must live. And it will go on until in this country we have industrially that which we have struggled so long and hard for and finally won politically; until we have democracy.
"There is nothing in revolution, gentlemen, that is wrong. We came to the condition in which we now find ourselves by revolution; first the grand American revolution and then the revolution against chattel slavery. It was nothing more nor less than revolution, because slavery was then entrenched under the highest law of the land, the decision of the Supreme Court in the Dred Scott case. We took it out of the courts and slavery was wiped out. Slavery again will be wiped out!
"The thing about this case which makes it of most serious importance, the thing about this case which makes it of public interest, the thing about this case which has so enlisted the sympathy of every one connected with it, which makes us feel the importance of a just verdict, is that it is not merely the liberty of a man that is at stake, but in a larger measure than you know there is at stake in your verdict in this case the rights of the working people, their right to organize, their right to protect themselves, their right to receive and enjoy the fruits of their labor.
"There is involved the question of whether or not the working people shall receive justice or forevermust be victimized by organized capitalists. There is involved the question of whether or not such things as have gone on in Everett for the last six months may continue forever with the endorsement of the jury or whether the working people on the other hand may go and discuss their wrongs and grievances and strive for their rights.
"As I have confidence in the righteousness of this cause and the integrity of this purpose, so I have confidence that your verdict will be not guilty."
Attorney Fred Moore closed the case for the defense with one of the greatest speeches ever delivered in a court room, a speech that seered its way to the minds and hearts of the jurors. Far more than a defense of Thomas H. Tracy it was an explanation of the industrial problems underlying society, the class warfare rooted in industry and manifesting itself on November 5th. It was a sustained and definite statement of the aims and objects of the I. W. W. and Moore showed, not only a great knowledge of the problems of the working class, but a wonderful command of satire and irony. Following is an abridgement of Moore's speech to the jury:
"May it please the court, and ladies and gentlemen of the jury; For a period of something like five hundred years the Anglo-Saxon has seen fit to place the final adjustment of the question of justice in the hands of twelve men. In the evolution of the law, that number has been increased until now in this state we have fourteen. Likewise, in the evolution of the law and in the face of the vast amount of public protest, and in the face of the most reluctant world, we have enlarged the term jurors to include women jurors. This is the first time that I personally have ever tried a lawsuit in which ladies sat in the jury.
HUGO GERLOT
"The state has told you why this case is one of grave responsibility for them. Allow me to tell you why this is one of grave responsibility for you. One hundred and ninety-six witnesses have appeared for the defendant in this case. Yesterday, counsel brought home the fact that many of these witnesseswere not residents of this community, were without homes, without any permanent places of abode. All true. The responsibility that you have in this case is commensurate with the fact that the case reveals to you, as it were, a cross-section of our lives. You who are property-qualified have a responsibility to pass upon the liberties and the lives of a body of men who are propertyless. If there is any change in men's thoughts and views as they acquire a home, as they settle down, as they marry, as they bring into the world children, then I ask you in all fairness to attempt to put yourselves in the places of this defendant and of this defendant's witnesses who have taken the stand, and to realize that your responsibility here is commensurate with the fact that the testimony reveals, as it were, a most deplorable condition of modern life. In other words, your responsibility here is that of measuring out absolute and complete justice between warring elements in our modern life, not for one moment allowing your judgment to be swerved by the fact that one class of witnesses here are witnesses of social position, are witnesses of property qualifications, are witnesses with homes, while, on the other hand, the witnesses called by the defense were witnesses from the four parts of the earth, witnesses whose only claim to your consideration is that they have built the railroads, that they have laid the ties, that they have dug the tunnels, that they have harvested the crops, that they have worked from one end of the country to the other, in season and out, floating from job to job.
"In most jurisdictions, the defendant has the opportunity of either a grand jury investigation or of a preliminary; in other words, he is in some degree advised of what evidence he is going to be called upon to meet. In this case, we came in here on the 5th day of March with no information whatsoever relative to the State's case other than that given us from the four corners of the instrument on file here, known as the information, together with the fact that on that information there were the names of some three hundred or more witnesses. That was allwe had. We were further handicapped in view of the fact that we did not have behind us all the resources of the State of Washington and the county of Snohomish, neither did we have behind us all of the resources of various business interests, neither did we have behind us all the resources of allied business on this west coast, as represented by Mr. Veitch."
Mr. Veitch: To which I take an exception, if the court please.
The Court: Exception allowed.
Mr. Veitch: On a matter of personal privilege, I have a right to characterize that statement as a deliberate misstatement of the fact.
Mr. Moore: Mr. Veitch has not seen fit to explain why he was here.
Mr. Veitch: I am employed by friends of Mr. Jefferson Beard. If that is not enough—
Mr. Moore: That is outside of the record.
The Court: Both of you are outside of the record. Proceed Mr. Moore.
"Suffice it to say that we are here as the frank and honest representatives of the defendant and of the defendant's organization. We do not have behind us the power of the State, or the power of any interest other than the defendant himself and of his organization.
"Mr. Black complained that the State had been hampered in this cause. Is it fair to say that the state has been hampered when on the fatal November the 5th. Judge Bell and Mr. Cooley were both on the dock? Judge Bell would have us believe that he was unarmed, and so far as we know Mr. Cooley was unarmed. Then why were they on the dock? Judge Bell was there as the representative, as he himself has testified, of a number of lumber mills, and Mr. Cooley was there likewise; both citizen deputies; both there; both unarmed if their testimony is to be believed. Again Mr. Cooley was, in the matter of a few hours, down here at the Seattle jail. Certainly he was not there to represent the defendant Tracy. Who was he there to represent? He was either there in a private capacity, representing private clients,or he was there in a public capacity representing a public client, namely, Snohomish County. Wherein do you find the evidence of the State being hampered, sir? From the beginning to the end the State has moved majestically, exercising all the power that it had. Mr. Black has had able assistance in this cause, the able assistance of Mr. Cooley, the able assistance of Mr. Veitch, the able assistance of the man behind Mr. Cooley and Mr. Veitch, Mr. McLaren. Yet, all the resources of the State have failed to produce one scintilla of evidence against the defendant Tracy here so far as tending to indicate that he did counsel, aid, incite, abet, or encourage anyone to fire any shot, except the testimony of George Reese produced at the eleventh hour on rebuttal. I intend to treat of our friend Mr. Reese later.
"It is significant that out of all that mass of testimony that has been introduced in this case up to this time not one single bit of testimony has been introduced or any argument had upon that testimony dealing with the object and principles and purpose of the Industrial Workers of the World. Mr. Black did not refer to it. Mr. Cooley has the final say. I anticipate his argument for the State. They have that old reliance, that old faith, if you will, in the trial of a case of this character, namely conspiracy; hallowed by age.
"Way back in the sixteenth century the tub women on the banks of the river Thames were indicted for conspiracy in attempting to raise wages. The chandlers in London were likewise later indicted. The stonebreakers in New York, the carpenters in Boston. From time immemorial the charge of conspiracy has been leveled against the ranks of labor. Indeed, it was only in the reign of Queen Victoria that labor unions became other than simple conspiracies. Up to that time labor unions were within a classification themselves of criminal conspiracy.
Dead body of Abraham Rabinowitz.
"Knowing that under the charge contained in the information we might be called upon to meet evidence of conspiracy, we then commenced a careful survey of all the facts in connection with the Everetttragedy. And what did we find? We found not a hint of conspiracy!
"James Rowan had come into Everett without knowledge at the time that there was any trouble there. He had not been advised that there was any possibility of trouble. From all the prior history of Everett he had no reason to anticipate trouble. Thompson had spoken there and many others had spoken there. Rowan was charged with a violation of the peddling ordinance. He had been given an arbitrary floater out of town and had exercised his right to come back, was seized again and taken to the city jail; the sheriff goes there and arbitrarily demands Rowan from the Chief of Police. These things happened prior to any acts that by any remote possibility could be charged to us. There was no literature in the town at that time other than the Industrial Relations report. What at that time did we have to conspire about? We had no object.
"And as with Rowan so it was with Thompson, Remick and others. If there was a conspiracy to violate a city ordinance why did not the city officials make arrests and charge the men with such violations? The record is silent. Why wait until Tom Tracy is on trial for murder, and then at the eleventh hour spring this delightfully specious argument?
"I can almost hear ringing in my ears the impassioned plea of Mr. Cooley in closing this case. He is going to read this, 'The question of 'right' and 'wrong' does not concern us.' He is going to say that is the I. W. W. philosophy. My God, did it ever concern the sheriff of Snohomish County? Does it seem very much to concern others who are attempting this prosecution?
"We were told in connection with the argument of counsel that Hickey was not on trial. They might have said that sheriff McRae was not on trial; they might have said that Bill Pabst was not on trial; they might have said that Joe Irving was not on trial; they might have said that the Commercial Club was not on trial; they might have said that all the men that have been guilty of all the brutality in thatCounty during the months of August, September and October were not on trial. We know it! Why are they not on trail?
"Deprivation of due process of law and confiscation of property! And yet Mr. Cooley is going to urge that the I. W. W. does not believe in government; he is going to urge that the I. W. W. does not respect the law. That kind of law never gets the respect of anyone. I hang my head in shame before such a history of usurpation and seizure of public authority as has been shown in this case.
"Are you going to give the stamp of your approval to this sort of thing? When you bring in a verdict in this case for the State you give your approval to Donald McRae. I beg of you to not put the seal of your approval upon lawlessness, official lawlessness, the kind of lawlessness that is worse, tenfold worse, than any private lawlessness.
"You are asked to stamp with your endorsement, to give your approval, to a man; a public official, the chief executive officer of a municipality, Mayor Merrill, who admits on the witness stand that he allowed a little group of members of the Commercial Club to take the power of the police department out of his office and turn it over to the sheriff of the county.
"Had the State put on Governor Clough and others on their side of the case we might have wrung from their reluctant lips the evidence of what occurred at the meeting on August 30th at the Commercial Club. But the State was careful not to put him on. Indeed, the most significant and outstanding thing in all this case is not who they put on, but who they did not put on. Neil Jamison did not testify in this case for the State; Governor Clough did not testify in this case for the State; Joe Irving did not testify in this case; Colonel Hartley did not testify in this case; Captain Ramwell did not testify. Why didn't Kelly, Chief of Police, take the stand? You might go down the line and you will find that the assets of all the witnesses for the State combined would total but a few thousand dollars, while you could take the remaining witnesses for the State whodid not testify and you could build up an enormous fortune, running into the hundreds of thousands of dollars. We didn't call them because we cannot cross-examine our own witnesses.
"Is the administration of the law to be made a farce? Shall the State be allowed to blow hot and cold; one minute hot on the enforcement of the law, the next minute cold when the shoe pinches, and then hot again when they can use the law for the advancement of the interests of their prosecution? They say McRae and Hickey are not on trial; there is no promise that they shall ever be on trial!
"Let me say to you that no one violates the law, I care not who it is, just for the fun of violating the law. Jails are not pleasant places to abide in. People who violate the law and go to jail do so either because they are deliberately criminal or because they want to focus attention on some public issue. However, Mr. Black is too kind and considerate when he gives all this credit to the I. W. W.
"The facts are, if you go back into the history of the Revolutionary Days, that our forefathers urged and banded together and combined and federated, and if you will, conspired to violate the Stamp Act of the British Government, and were willing to go to jail if necessary. They went even further! They threw the British tea into Boston Harbor. Violation of the law? Yes, if you want to call it such, but the indignant protest of a people as against the enforcement of an unjust law.
"I might urge upon you that the State at that time wanted to absolutely suppress any speech whatsoever, because they had constituted the chief of police, the sheriff, the arresting officer, as the executive, the legislative and the judicial department of our government. The sheriff executed the law in person, the sheriff declared the question of guilt himself, the sheriff ordered deportations, and the sheriff took physical charge of the deportations. Isn't it impossible to avoid a fight when someone usurps unlawfully and illegally the legislative and judicial functions of government? Isn't it time to fight? If it isn'tthen we may as well cease any attempt to administrate the law!
"In the phraseology of these boys 'Fight' means a moral adherence to principle, a firm determination to face the authorities in the administration of the law, and if necessary to be arrested. But the State would have you put into it now a more sinister meaning, entirely new and foreign to its former use.
"The State brought in the death of Sullivan of Spokane in their opening and abandoned it in their close. One of the exploded hopes of the State! They counted on North Yakima and Wenatchee to show violence and arson, and they failed most miserably. They have failed in their identification of the defendant. Now, their forlorn and bankrupt plea here is the charge of conspiracy.
"The court has told you that this is a murder case. Why then has the State cumbered the record with the I. W. W. preamble and constitution? Why with two pamphlets on sabotage? Why with an I. W. W. song book and such matters? Why?
"Because out of some of the phraseology here, phraseology far removed from you and me, they may build up a condition of prejudice which may result in your returning a conviction on a smaller degree of evidence than you would otherwise require. Mr. Cooley is going to stand here and read little, short, listed extracts from the context of the whole. The pamphlets he has introduced on the question of patriotism and the worker is the foundation from which Mr. Cooley will appeal to your prejudices and passions.
"We are not afraid of the evidence. We are afraid of this deep-grained interest that goes down into men's conscience and that reached back a thousand years.
"Remember that behind this case are many women and children whose cause these boys represent; whose cause these boys are attempting to fight for. They fight because they must! They fight because to do anything else is suicide. You could not have stopped the American Revolution with all thepowers of the British government. Since this jury was empaneled you have had the collapse of one of the greatest powers of modern times. I refer to Russia. It has passed from an absolute monarchy to a stage of a republic.
"The trial of this cause is the presentation of a great social issue, the greatest issue of modern times, namely, what are we going to do today with the migratory and occasional workers? These migratories, they are the boys who have told their story on the stand.
"If there is one principle that is ground into Anglo-Saxon thought it is that of liberty of the press and freedom of speech. Those two things stand as the bulwark of our liberty. They are the things for which the Anglo-Saxon has fought from time immemorial. Away back in the eighteenth century Charles Erskine, a member of the British bar, defended Thomas Paine for having written the 'Rights of Man'. Case after case was fought out during that period when English thought was budding into fruition; when English thought was being tremendously influenced by the French Revolution and when those thoughts were bearing fruit in England. Time and time again the British crown attempted to throttle freedom of speech and liberty of the press. Time and time again Charles Erskine's voice was raised in the House of Lords in protest. Time and time again the British courts and finally the British jurors, gave voice to the doctrine that freedom of speech and liberty of the press may not be invaded except insofar as that subject, that document, is accompanied with acts; that you may not convict men for what they think; you may convict men only for what they do. Freedom of discussion thru the press and thru the public forum are the mainstay and the backbone of social development and social evolution. Only in that way, thru freedom of thought and freedom of discussion, may you fan the wheat from the chaff.
"Why, if this I. W. W. literature is all the State claims it is, why doesn't the State act in the way the law says they should act, prefer charges, arrestsomeone, bring the literature before a duly qualified body, a court with jurisdiction, and try the matter out? The State has not done that; the State will not do that; and we are in the position of a man fighting in the dark, without knowledge of what character of argument the State proposes to make.
"I do know that the name of Joe Hill is going to be paraded in front of this jury. The I. W. W. song book dedicated to Joe Hill, with the inscription 'Murdered by the authorities of the State of Utah, November 19th, 1915.' I cannot go into the conditions that surround that tragedy, but I can call your attention to one or two things that bear upon the question of the type of the man. Before he died, written in his cell on the eve of the execution, was Joe Hill's last will: