1 IBRAHY OF THE UN IVLRSITY Of ILLINOIS ■from Carl Sandburg's Library 323.44 C432p cop. 3 HUM* HISTORICAL SU8IU / PURSUIT OF FREEDOM Illustrated by Misch Kohn Digitized by the Internet Archive in 2012 with funding from University of Illinois Urbana-Champaign http://www.archive.org/details/pursuitoffreedomOOchic PURSUIT OF FREEDOM A History of Civil Liberty in Illinois 1787-1942 Editorial Committee Edgar Bernhard Ira Latimer Harvey O'Connor :rnal VIGILANCE ISTHE PRICE OF LI BE RTY CHICAGO CIVIL LIBERTIES COMMITTEE ILLINOIS CIVIL LIBERTIES COMMITTEE CHICAGO • ILLINOIS Copyright 1942 by Chicago Civil Liberties Committee All Rights Reserved. Published November 1942 Composed and Printed by Union Labor Chicago, Illinois, U.S.A. 287 323. ¥¥ d¥32p t£np • * Board of Directors Edgar Bernhard Martha Cardwell Archibald J. Carey, Jr. Earl B. Dickerson Robert T. Drake Leonard Fuchs Arthur J. Goldberg Pearl M. Hart Mrs. Wilmarth Ickes John A. Lapp Ira Latimer Charles Liebman Mrs. Blanche C. Mrs. Esther J. Mohr Clara Noyes Harvey O'Connor Edward C. Porter William E. Rodriguez Charles P. Schwartz George L. Siegel A. Ovrum Tapper Robert Travis Philip H. Wain Seymour Weisberg Emerson C. Whitney Lowenthal Advisory Board James Luther Adams Charles S. Bacon Morton Berman Jessie F. Binford Mrs. Samuel Booth G. A. Borgese M. O. Bousfield Preston Bradley S. P. Breckinridge Anton J. Carlson Lucy P. Carner Charlotte Carr Albert Buckner Cce Flora J. Cooke John De Boer Kermit Eby Edwin R. Embree Charles W. Gilkey Solomon Goldman Benjamin A. Grant Robert E. Graves Ernest A. Grunsfeld, Jr. John Gutknecht Harold C. Havighurst A. Eustace Hayden Ludvig Hektoen Lillian Herstein Joel D. Hunter Samuel Laderman Leo Lerner Robert Morss Lovett Curtis C. MacDougall Louis L. Mann Mrs. John C. Marshall Lawrence Martin Mrs. Catherine W. McCulloch Clyde McGee Wayne McMillen Irvin C. Mollison Joseph L. Moss Max Novack Albert W. Palmer Ethel Parker Curtis W. Reese Harold W. Ruopp Franklin D. Scott John Sengstacke W. Ellis Stewart Mrs. Lorado Taft Robert R. Taylor Ernest Freemont Tittle Arthur J. Todd Walter Verity Henry Nelson Weiman Jacob J. Weinstein Mrs. M. L. Weinstein James M. Yard PREFACE "Eternal vigilance is the price of liberty." This book was written as part of the educational program of the Chicago Civil Liberties Committee to bring home to Illinoisans the truth of these words. Our voluntary association of one thousand members, incorporated not-for-profit under the laws of the State of Illinois, has for twelve years defended the rights and freedoms of the people in Illinois and in the Chicago region. Pursuit of Freedom was conceived with the outbreak of World War II and has been in preparation for three years. The compilation of research data which has pro- vided the basis for this book was done for the Committee by a public agency which has asked that no credit for this assistance be given either to the two score research workers or to the agency. The files of the Committee and public libraries provided the sources of historical materials. The final manuscript was prepared by an editorial committee consisting of Harvey O'Connor, Edgar Bern- hard, and Ira Latimer. Since the jour freedoms are our principal war and peace aims at this time, it is fitting that civilians and members of the armed forces should read and consider well the history of civil liberties. The focus of public attention on problems of social and personal liberty are sharpened in war time. We have ringing in our ears Hitler's viii PREFACE challenge that those who make history write it. On December 15, 1 94 1, just after Pearl Harbor and after our Congress voted the declaration of war against Japan, Germany, and Italy, we joined the nation in celebrating the 150th anniversary of the federal Bill of Rights. On April 13, 1943, the country will celebrate the bicenten- nial of our greatest libertarian, Thomas Jefferson. These events point up the pressing problems of political and economic democracy in an age of mechanization and electrification and in a world community. This case record of violations and threats to civil liberty is pre- sented as objectively as possible and the events speak for them- selves. The story of the struggle for civil rights in Illinois is largely one of the denial of freedom because such cases make the headlines and represent major campaigns of repression against some minority or indicate trends of public opinion in the field of civil liberty. This study is not intended to indicate that liberty in Illinois has been honored more in the breach than in its observance; on the contrary, it is intended to stimulate vigilance against vigilantism and to aid in understanding the problem of protecting civil liberties for all as the best defense of democracy. Pursuit of Freedom in Illinois is especially important, for in a state half industrial and half agricultural, in a state of the North bordering on the South, a cross section of the entire problem can be presented for purposes of study. Illinois was the home of Love joy, Lincoln, Altgeld, Anthony, Addams and Darrow. It was the scene of the Haymarket affair; the Pullman strike; the Prager lynching; the Herrin incident; the race riots of Springfield, East St. Louis, and Chicago; and the Memorial Day tragedy. These Illinois people and events were each of national significance in the field of civil rights. It is the purpose of this book to acquaint the reader with what happens when the rights are abridged which he has inherited as a citizen of the United States and of the State of Illinois, as well as to point out what these rights are and the problems presented by them. In war time the morale of the people and the people's armed forces depends on their understanding of the basic prin- ciples and realities of American democracy and on a firm conviction that these are worth fighting and dying for. For instance, according to Negro newspapers and spokesmen, morale is low among Negro- Americans, who constitute ten per cent of the nation, because of the lack of protection of their enjoyment of civil liberties. PREFACE ix Liberty is not a word but a condition. It is not an abstraction but a daily practice. Liberty is like good health, and we take it for granted until we lose it. Pursuit of Freedom will make a few more Americans conscious of their civil liberties. The freedoms of the people, as set forth in the federal Bill of Rights and inter- preted by the courts, are limitations on the national government from interference with the citizens or states. Civil rights legislation and all other legislation becomes law in the fullest sense only after the courts have upheld and interpreted it. It is an axiom of history that whoever has power, economic or political, enjoys liberty. Courts and elections usually determine majority rule, but also issues of freedom have been determined by civil war and international conflict. There are continual conflicts between the rights of indi- viduals and between the rights of the individual and the group.. Today the right to a job, to picket, and to petition, to confer with, and to criticize management on the job, are not yet fully supported as civil rights. The major issues today, as to whose freedom shall limit whose, are in the field of the distribution of wealth and of economic power over wealth and persons (hiring power). Those fighting for greater political and economic freedom include labor, tenant farmers, share-croppers, and dependent minority races. New times bring changes in the line drawn by the people and social inventors between the rights of the individual citizen and the powers of the State which he and the majority of the people have created. Francis Lieber of South Carolina in 1853 summed it up in his Civil Liberty and Self -Government: "Civil liberty is a result of man's two-fold character as an individual and a social being so soon as both are equally respected." We regret that a chapter has not been included on the violation of freedom by the judiciary since this has been and is today an important problem of civil liberties. It is directly related to one of the major activities of the Committee during the past decade, the attempt to lessen and stop police brutality and third degree. The difference between the attitude of the judiciary during the Civil War and World War I is striking. In the Civil War most of the arrests were made at the instance of the executive. In the main, justices and district attorneys stood for individuals' rights. During World War I district attorneys and justices shamelessly adhered to patrioteering. We wish to acknowledge the valuable suggestions made by the following consultants who read parts of the manuscript: George Axtelle, Harry Barnard, Jessie F. Binford, Anton J. Carlson, x PREFACE Flora J. Cooke, Earl B. Dickerson, Arthur J. Goldberg, Pearl M. Hart, Francis Heisler, Joel D. Hunter, Charles Liebman, Metz Lochard, Dorothy Munselle, William E. Rodriguez, A. L. Sachar, Charles P. Schwartz, A. O. Tapper, and James M. Yard. The Com- mittee is also indebted to Aline Slive, Rose Fuchs, Esther Joseph, and Mollie Thwaites for typing the manuscript ; and to Imogene Latimer, Esther J. Mohr, Ethel Parker, and Rose Rubinstein for assistance in proof-reading and other publication details. All mem- bers of the Board of Directors and Advisory Board of the Chicago Civil Liberties Committee have given encouragement, and many have given financial aid to this publication and its distribution. Ira Latimer, Executive Secretary. CONTENTS CHAPTER PAGE Preface vii I. In Pursuit of Freedom I II. Freedom of Religion 5 III. Freedom of the Press 20 IV. Censorship 44 V. Academic Freedom 6$ VI. Rights of Political Minorities 83 VII. Freedom Without Equality 94 VIII. Rights of Aliens 109 IX. Anti-Semitism 120 X. Organized Mob Violence 130 XI. Unconstitutional Police Methods 142 XII. Rights of the Unemployed 154 XIII. Rights of Labor 170 XIV. Freedom of Conscience , 199 Appendix — Federal and Illinois Bill of Rights 209 CHAPTER I IN PURSUIT OF FREEDOM Our civil rights and liberties — our freedom — constitute the out- standing characteristic of the American way of life. The Man from Mars analyzing the guiding concepts of the Nazi-Fascist countries and of the United States would find the clearest contrast in the Bill of Rights, embedded in the American Constitution in 1791, nour- ished through the constant vigilance of a freedom-loving people, and expanded generation by generation to meet the changing needs of the times. Freedom is a concept as nebulous as air unless it is judged in the relationship of the citizen and his government, the wage-earner and his employment, the citizen-at-large and his community. As defined by the Bill of Rights, by legislation, by court decision, and by the customs of the people, one can judge the quality of freedom in this land of ours. The verdict is reassuring. Few peoples in any time have enjoyed more freedom than ours; nor has freedom be- 2 PURSUIT OF FREEDOM come a sterile fetish. Each generation has fought to enlarge the fundamental ideas implicit in the Bill of Rights. Nowhere is that better illustrated than in the expanding suffrage. Whatever the noble aspirations of Thomas Jefferson in the Declaration of Inde- pendence, the fact is that the Founding Fathers restricted the fran- chise largely to white, male, property-owning taxpayers. Jefferson himself lived to see the triumph of suffrage for white males. Lincoln removed the curse of bondage from the slaves, while succeeding generations of black people have fought to give full meaning to their Bill of Rights, the 14th and 15th Amendments. Women, too, fought a long battle to be removed from classification with imbeciles, paupers and felons, and won. Today a new and broader interpretation of the Bill of Rights is being developed. From time to time by legislative enactment, by official order, and by unofficial suggestion, new definitions of our constitutional rights are being formulated. For example, the National Resources Planning Board recently declared: Great changes have come in our century with the industrial revolution, the rapid settlement of the continent, the development of technology, the accel- eration of transportation and communication, the growth of modern capital- ism, and the rise of the national state with its economic programs. Too few corresponding adjustments have been made in our provisions for human freedom. In spite of all these changes, that great manifesto, the Bill of Rights, has stood unshaken a hundred and fifty years. And now to the old freedoms we must add new freedoms and restate our objectives in modern terms. These were the freedoms then enumerated: 1. The right to work, usefully and creatively through the pro- ductive years. 2. The right to fair pay, adequate to command the necessities and amenities of life in exchange for work, ideas, thrift, and other socially valuable service. 3. The right to adequate food, clothing, shelter, and medical care. 4. The right to security, with freedom from fear of old age, want, dependency, sickness, unemployment, and accident. 5. The right to live in a system of free enterprise, free from compulsory labor, irresponsible private power, arbitrary public au- thority, and unregulated monopolies. 6. The right to come and go, to speak or to be silent, free from the spyings of secret political police. IN PURSUIT OF FREEDOM 3 7. The right to equality before the law, with equal access to justice in fact. 8. The right to education, for work, for citizenship, and for personal growth and happiness. 9. The right to rest, recreation, and adventure ; the opportunity to enjoy life and take part in an advancing civilization. In the pronouncement popularly christened the "Atlantic Char- ter," the universals of human life were declared to be: freedom of speech and expression, freedom to worship, freedom from want, and from fear. Civil rights and liberties, however, are merely blueprinted in words; they are realized in acts. The history of the pursuit of freedom in Illinois recounts a struggle for liberty which was part of the fabric of our prairie culture. Men came here first to seek wider horizons than could be found along the crowded seaboard. Every stage in the nation's advance toward firmer and broader principles of freedom found its expression in Illinois, often in far fiercer conflict than the tamer sections of the country witnessed. Here Owen Love joy faced the slavery mob and retreated not an inch in championing abolition, even though death was the price he paid. Here was nurtured the Great Emancipator whose name will forever be associated with the grandest traditions of Liberty. Here grimy workingmen, their hands gnarled in the nation's service at workbench and lathe, fought in the streets for the right to organize unions of their own choice, and went fearlessly to the gallows shouting the battle cry of freedom. Here in wartime were kept alive, precariously enough, faint embers of freedom, when in many states the blackout of liberty was complete. This book, in itself, is the surest token that freedom will live and grow. Not only because in the midst of the most devastating war of all times it can be published, although that in itself is proof enough of the firm rooting of civil liberties in our soil. But more because in these pages are recorded the struggles of men and women, most of them of humble origin, to express the innate dignity of the indi- vidual, the essential worth of human life. That a single state of the Union can provide the material compressed here within a few hundred pages, is evidence that freedom is no hothouse plant. Not all the dead weight of tradition, of dying ideas and stifling repres- sion can smother the desire for liberty. This state, in the heart of the Valley of Democracy, is not excep- tional. With the great Midwest, it shares the basis of our civiliza- 4 PURSUIT OF FREEDOM tion in a hundred thousand farmsteads. With the great industrial North, it shelters ten thousand workshops, ranging from immense factories to primitive handicrafts. With the South, it encompasses its own "Little Egypt," as much a part of Dixie as the Mississippi delta lands. With the boundless West it shares the far-reaching horizons of the prairies. It is typical of America. If here the seed of civil liberty has grown and flourished, then there is promise that the Nation can keep its ancient freedoms and press on toward newer freedoms. Here in the heart of America are cherished the rights won by English yeomen and Parisian citoyens, by the minute-men of Lex- ington, the cordwainers of Philadelphia, the battalions of Ulysses S. Grant, by the cigar-makers of New York, and the women who endured Occoquan workhouse. In the proud annals of American history, Illinois yields to none when it names its sons and daughters — Owen Lovejoy, Abraham Lincoln, Albert Parsons, John P. Alt- geld, Susan B. Anthony, Clarence Darrow, Jane Addams. Nor can it be doubted that the names of men and women now living will be added to Illinois' Hall of Fame. That is the exhil- arating promise of freedom — that its annals will never be ended. Man stands today below heights yet unsealed. The torch of liberty lights his way foward to a civilization not yet realized. Illinois will not lag in her Pursuit of Freedom. CHAPTER II FREEDOM OF RELIGION No provision of the Bill of Rights gains more universal support among Americans than that guaranteeing the freedom of religious worship. The earliest refugees to these shores fled religious perse- cution. When after 150 years of groping toward nationhood, the Colonies banded themselves into a Union, they insisted upon placing these words at the very beginning of the First Amendment : "Congress shall make no law respecting an establishment of re- ligion or prohibiting the free exercise thereof." That clause was the fruit of bitter experience of colonists who had fought established State churches, in England and on the Continent, and of their later experiences in trying to impose religious dogmas within the various colonies. Much as Puritan or Episcopalian might like to incorporate his own concepts into the laws of Massachusetts or Virginia, both dreaded the imposition by the Federal Congress of religious sanctions which would certainly be to the distaste of any but the favored denomination. The existence of varying faiths 6 PURSUIT OF FREEDOM along the seaboard was in itself the guarantee that none would be granted preference by the new national government. By no means did the religious clause of the First Amendment indicate a universal acceptance of the principle that Church and State must be separated. The Church was an established partner of the State in Massachusetts until 1833; Jefferson considered the disestablishment of the Church in Virginia one of the three bases for his claim on the affection of succeeding generations. But his stand for separation of Church and State was not accepted by those who thought their particular form of religion the one way to salvation and who insisted that the State had a moral duty to bend the citizen in the paths of righteousness as outlined by that denomination. It was held that the first ten amendments were restrictions only against the federal government and not against the states. Thus the several states as sovereign bodies were left to legislate as they pleased on the religious obligations of their citizens, within the bounds of their own constitutions. Subsequently the United States Supreme Court held that the rights protected by the Fourteenth Amendment — admittedly an amendment which set up restrictions against the states — must be interpreted to include freedom of re- ligion, of speech, of press, of assembly, and other of the several rights guaranteed in the first ten amendments. Thus, by interpre- tation, many of the guarantees of the Bill of Rights extend to the citizen today as protection against state legislation as well as against the federal government. Religious freedom in Illinois rested on no negative clause in the Bill of Rights but rather on the broad affirmative declaration of the Ordinance of 1787 regarding the states later to be formed in the Valley of Democracy: And, for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, con- stitutions, and governments, which forever after shall be formed in said territory . . . Thus freedom of religion was protected in the Illinois country from 1787 until Illinois became a state in 18 18. Then the first constitution declared, in the eighth article, third and fourth sections : That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; that no human authority can, in FREEDOM OF RELIGION 7 any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given by law to any religious establishments or modes of worship. That no religious test shall ever be required as a qualification to any office or public trust in this state. These sections were included word for word in the Constitution of 1848; but in drafting the Constitution of 1870, the wording was changed to read: The free exercise and enjoyment of religious profession and worship, with- out discrimination, shall forever be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomina- tion or mode of worship. Religious minorities and non-believers have enjoyed larger legal protection in Illinois than in the seven states that still prohibit testimony by non-believers, or in the twelve states that accept such testimony with limitation. Express statutory provision is made for those having "conscientious scruples against taking an oath" by enabling them "solemnly, sincerely and truly" to declare and affirm. With the weakening in bigotry, tolerance has prevailed in Illinois since its inception as a State. In 1870 the DuQuoin Tribune offered what seems a faithful mirror of its times in describing the com- munity attitude: "It makes little difference here whether a man is a Mohammedan, Christian or Jew; Democrat, conservative, moderate or radical Republican, so long as he goes upon his own way." So pronounced was this easy-going view that there was little criticism of Lincoln for his lack of denominational allegiance nor even interest in whatever views he might have on religious matters. The one exception were the Mormons, who refused to vote for Lincoln as a Presidential elector in 1840. And it was at the feet of the Mormons that the fires of persecution licked in the first and most fierce outburst of religious bigotry in Illinois. The people of Illinois were not, at first, particularly concerned about the religious doctrines of the Church of Jesus Christ of Latter- Day Saints any more than the Missourians. Many "gentiles" in Missouri, particularly slave-owning, conservative Democrats, shud- dered at the preaching that all Israel would be gathered in Zion 8 PURSUIT OF FREEDOM and that a kind of religious and Utopian communist system would be established by a group, many of whom had been New England abolitionists. The Mormons were accused of corrupting the slaves and attempting to overthrow the economic system. The militia drove them across the Mississippi into Illinois in 1838, where they were received with some enthusiasm, particularly by Whigs who welcomed their votes. At the time, Whigs and Democrats were deadlocked, and a sizable block of Mormon votes, swung this way or that, guaranteed them the balance of power and a charter for settlement in Hancock County at Nauvoo. On the banks of the Mississippi the Mormons built their "City Beautiful." Within a year and a half a temple was begun, factories established and two thousand houses constructed. Within five years the population of Nauvoo reached 15,000, the largest city in the state at the time. The Mormons had bitter memories of troubles and per- secutions in Missouri. Their support was sought by both the Whig and Democratic party and they shrewdly played one party against the other for concessions. By 1840 they won from the Whig General Assembly a municipal charter, an extraordinary document that made the City of Nauvoo Legion, a militia; though subject to the Governor's call, it was entirely independent of the regular state militia. It was officered exclusively by Mormons and was governed by its own court-martial. Its regular drills and maneuvers on the prairie aroused the appre- hension of surrounding settlers. There was jealousy of such special favors, and these in time, together with other irregularities on the part of the Gentile and Mormon communities, became transformed into hatreds — and then hatreds were translated into mob violence. Joseph Smith, the Mormon prophet, succeeded in being appointed Quartermaster-General of the Illinois State Militia, in addition to being Major-General of the Nauvoo Legion. He was also master- in-chancery of Hancock County, and for a time mayor of Nauvoo. At the height of his influence as leader and Prophet of the Mor- mon community, Smith entered the field as a candidate for the presi- dency of the United States. By 1843 there were rumors and charges of the practice of polyg- amy, which were promptly denied by Mormon wives and by a state- ment signed by Joseph Smith himself. Dissension broke out among the Saints, and factionalism was rife; a schism occurred and the leaders of the opposition to the Prophet in June, 1844, published their beliefs and charges in the Nauvoo Expositor. These leaders were all influential men in the church. Their attack FREEDOM OF RELIGION 9 was against Smith and not against Mormonism. Smith called out the Nauvoo Legion and ordered the city marshal to destroy the printing press on which the Expositor had been printed. A writ for Smith's arrest on the charge of abrogating the liberty of the press was issued at Carthage, the county seat of Hancock County. The Prophet promptly nullified the writ of arrest by a writ of habeas corpus in the Nauvoo court. There followed the violence which anti-Mormon mobs waged against the community. Governor Thomas Ford was asked to call out the state militia. The governor hurried to Carthage, urged Smith to surrender and promised him security from mob action. Smith, accompanied by his brother Hyrum and several other Mormon leaders, fled across the Mississippi River and laid plans to leave Nauvoo permanently. Smith and his com- panions returned later, gave themselves up and were imprisoned at Carthage, charged with inciting a riot. Smith was also charged with treason because he had previously declared Nauvoo under martial law and had called out the Nauvoo Legion. He and Hyrum were held without bail, but the others were released upon posting $500 each. By this time tension in Hancock County was near breaking point. The Gentiles feared the Nauvoo Legion would march on Carthage to release the Prophet by force. At Nauvoo, the Mormons feared a Gentile mob would descend and lay waste to the city. The Gov- ernor heard of a plan to sack the town, and he ordered the disband- ing of all militia companies save three, one of which accompanied him to Nauvoo. The other two were left to guard the jail at Carthage. Governor Ford assured the Mormons that their leader would be given a fair trial, and he warned them against any attempt to use force, else Nauvoo would be destroyed by the Gentiles. The militia company at Warsaw was marching to Nauvoo when it received word of the Governor's order. A portion of the company failed to comply and proceeded on to Carthage. A mob attacked the jail, and Smith and his brother were slain, June 27, 1844. In January, 1845, the General Assembly repealed the Nauvoo charter, and in the spring of the same year Smith's assassins were discharged, the trial jury having returned a verdict of "not guilty." Following this violence, sporadic brushes between Mormons and Gentiles increased as the season advanced. In September, 1845, the Mormon leaders agreed to accept the recommendation of a com- mission representing the residents of nine counties that the Mor- mons were to evacuate Nauvoo and leave the State. The first exodus of Saints was in 1846; they entered Utah in July, 1847, io PURSUIT OF FREEDOM under the leadership of Brigham Young. Before all the Mormons had left their "City Beautiful,'' as they called Nauvoo, the anti-Mor- mons abrogated their agreement negotiated with the Mormons, and marched as a force of 700 men with several pieces of field artillery on Nauvoo. The city was besieged for two days, after which neutral citizens from Quincy managed to halt the siege. Under terms exacted of the Saints, all were to leave the city immediately. The attitude of the Gentiles was summed up by the Warsaw Signal, a violent critic of the Saints. "We believe they have the same rights as other religious bodies . . . But whenever they, as a people, step beyond the proper sphere of a religious denomination, and become a political body, as many of our citizens are beginning to apprehend will be the case, then this press stands pledged to take action against them." The harsh terms imposed on the last remaining Mormons caused great distress. They fled across the Mississippi, anxious fugitives facing the western prairies, dreading hunger on the open plains. Young had established a camp near Council Bluffs and there awaited the last of the Saints. It was not until early 1847 that they were ready to begin their western journey to find peace and security in Utah. Whether the issue involved in the Mormon controversy was persecution for religious tenets or fear of economic doctrines or the use of a denomination in outright political manipulation is still debated. The astute use of a religious group in the state's political affairs undoubtedly awoke apprehension among those thoroughly devoted to the principle of separation of State and Church; these fears united with resentment against a disciplined group able to secure for itself unusual powers and prerogatives not accorded other groups. A resolute state government might have been able to solve the thorny problems; but Illinois, already distracted by the great conflict which was to break into Civil War in 1 861, its people almost evenly divided into opposing camps, was unable to marshal the political wisdom which could have guaranteed the rights of Mor- mons and Gentiles alike. The struggle degenerated into a species of local warfare which shed no glory upon the state and constitutes one of the black pages in its annals. That Missouri and Illinois were not alone in sharing ignominy seemed proved by the Mormons' determination to escape all con- tact with the Gentiles by establishing their own realm in the Far West on the shores of Great Salt Lake, and by the subsequent troubled history of Mormon-Federal relations. FREEDOM OF RELIGION n Dissension within churches and the control of property by the Church has raised issues which at times seemed to involve questions of civil liberties. In the decade from 1850 to i860, the Episcopalian Church was troubled by an acute controversy over "high church" practices. A non-conforming clergyman was sentenced to be deposed from his ministry for refusing to use the exact phraseology of the Book of Common Prayer, but before this could be carried out, an injunction was obtained in the Superior Court of Cook County restraining the church court. Lawyers argued that the minister's profession was property and that therefore he had the right to have his case decided by the secular courts. The Illinois Supreme Court in 1 871 reversed the decree and the injunction was dissolved. The ecclesiastical court was thus confirmed in its power to adjudicate church matters. The legislature had passed a special act, in 1845, investing in the Catholic bishop of Chicago and his successors the power to control and convey all church property in his diocese. Similar authority had been vested previously in the bishops of Vincennes and St. Louis. The 1870 Constitution prohibited such special legislation "where a general law can be made applicable." Control of church properties is now covered by such a general law. The right of clergy and church groups to the expression of opinion on political issues was the target of heated criticism during the great slavery debate preceding the Civil War. Slavery forces complained that most of the clergy were on the opposite side and many called for the silencing of "political parsons." The Civil War rent many churches asunder, particularly those in which the slavery contro- versy had been an issue. In a nation with puritan background, it would hardly be expected that efforts to gag the clergy on political issues could win much support. Nevertheless, a section of public opinion has grumbled con- stantly that "preachers should stick to the Bible," leaving public affairs to the secular authorities. In "Know-Nothing" periods, the Catholic Church has been accused of seeking to exert political power. Usually propagandists of this type have sought to give the impres- sion that this is a "Protestant nation"; that a Catholic does not have the right to be President; that the Vatican is straining for influence in Washington. Membership figures released by the Protestant churches indicate that this is not a Protestant country in the sense that a majority of its citizens are communicants of those churches. Indeed, the percentage of communicants of all churches has declined 12 PURSUIT OF FREEDOM until now the majority of the American people are not enrolled in any church. The issue of religious activity in political life flared during the heated Prohibition controversy, and in the past generation the ten- dency of many churches to adopt advanced social programs based on "the ethics of Jesus" has aroused conservative forces to protest ministers' "meddling in worldly affairs." The challenge of Fascism to Christianity has likewise evoked a narrow reaction; but actually men of the cloth, such as Charles E. Coughlin, Gerald Winrod and Gerald L. K. Smith, have been the most active pro-Fascist propagandists. Sections of the church have been in active politics long before the Prohibition controversy. Efforts were made to circumscribe citizens in their Sunday activities through "blue laws." Many churches held that the Sabbath must be devoted to worship and rest and that other activities, such as the functioning of stores and shops, the running of trains, and the sale of newspapers should be forbidden by law. However, the courts held that "the free enjoyment of religious worship includes the freedom not to worship" and that view came to prevail on the Sunday question, particularly as many of the recent European immigrants brought with them the practice of turning their day of rest into a festive occasion. It became evident that in the exercise of religious freedom the public recognized the govern- ment's impartial attitude toward those who wished to observe the Sabbath exclusively as a day of worship and those who observed it as a day of rest or recreation. How a citizen may comport himself on that day, it is held generally now, is no more the State's business than his conduct on other days of the week. The issue of religious freedom has come to the fore recently in pressure for the religious education of school children. Church lead- ers have viewed with misgiving the increasing alienation of the Church from a large part of the community and have felt that if religious training could be given all school children, the position of the churches would be strengthened, and the moral tone of the citi- zenry raised. Hurdles in the achievement of this aim have been the Illinois constitutional provision barring the use of tax funds for religious instruction within schools, sectarian rivalries and the dis- taste of a section of the public for what they regard as a breach in the principle of separation of Church and State. The Illinois Su- preme Court held, in 1885, that the University of Illinois could expel a student for refusing to attend religious services in the uni- versity chapel. The student's general rights, the court held, were FREEDOM OF RELIGION 13 circumscribed by his special status as a student subject to university regulations. The student's affiliation with the university was volun- tary; it was otherwise when a similar case arose in 19 10 affecting school children. Then the State Supreme Court held that children could not be bound to religious worship in the school against their own wishes and the wishes of their parents. "The wrong arises," said Chief Justice Farmer, "not of the particular version of the Bible or form of prayer used — whether found in the Douay or King James version or in the particular songs sung — but out of the com- pulsion to join in any form of worship. The free enjoyment of religious worship includes freedom not to worship." In the 1890's there was opposition by some Roman Catholics and Lutherans to the compulsory school law of 1889. Fears were ex- pressed that such a law interfered with the authority of parents and clergy over children, and therefore was an abridgement of "liberty of religion." Efforts to repeal the law failed. In the 1930's, a movement gained headway throughout the country to bridge over constitutional and other difficulties in the way of religious instruction of school children by providing for their dismissal from school for an hour or two a week to receive training under church auspices. In 1929 several schools in the Lakeview district of Chicago had permitted children to attend religious classes on school time, and in 1 940 the Superintendent of Schools proposed that the plan be extended to other sections of the city and to the high schools. The proposal had the enthusiastic backing of the Chicago Church Federation (Protestant), and of many prominent Catholic and Jewish dignitaries. The Chicago Civil Liberties Com- mittee, the Citizens Schools Committee, the City Club, and many civic organizations expressed their opposition, on varying grounds. Permitting instruction on church premises was declared an evasion of the Constitutional ban on such classes in the schools themselves, particularly as the cooperation of the schools was needed for dis- missal of students. The provision for obtaining the parents' consent was declared meaningless, as the parent had no right to consent to an illegal act. The compulsory school act of 1920 was cited as providing that the child must attend school "the entire time during which the public school wherein the pupil resides is in session." A minority of ministers expressed their disapproval of the "re- leased time plan" and campaigned vigorously against it. Others joined the fray with a variety of arguments: religious education was the responsibility of parents and churches, and not of the schools; training such as might be provided under the released time plan H PURSUIT OF FREEDOM would be ineffective in achieving its purpose 5 children whose parents preferred them to remain in school would be stigmatized; children would be made aware of sectarian differences as they went to vary- ing centers for instruction; the released time plan was an ingenuous way to "parochialize" the public school system; only a minority of the citizenry was affiliated with the churches, hence this was an effort by a powerful minority pressure group to obtain a privileged position; if the churches offered an appealing program of their own, parents and children would respond voluntarily "in the American way" without compulsion. Some thought they saw the hidden in- fluence of the Catholic Church preventing the institution of such a plan, and some thought the Catholic Church was fostering it. Others argued that a plan that had been adopted by some 600 communities in 35 states and tested for years would prove equally valuable in Chicago. Actually the plan was not only operating in many Chicago grade schools but in many suburban communities and in other parts of the state. Whatever was the validity of the constitutional issue, it had not been raised effectively in those instances. Other issues involving religious freedom in Illinois are sum- marized: 1. The State will not interfere with the internal discipline of a church, nor dictate ecclesiastical law (Chase vs. Cheney, 58 111. 509). 2. A person may donate as he pleases for religious purposes (Ke- hoe vs. Kehoe, 1 111. C. C. 164). 3. The courts will not pass upon differences within churches ex- cept insofar as property rights are involved; when a church divides, that part adhering to original tenets is entitled to the property (Christian Church vs. Church of Christ, 219 111. 503). 4. Questions about a person's religious faith are irrelevant in a trial (Stark vs. Schlensky, 128 111. App. 1). 5. The State is not concerned as to how a religious corporation runs its internal affairs, whether autocratically or democratically (Knights of the Ku Klux Klan vs. First National Bank et al., 254 111. App. 264). Although subterranean forces continued to agitate along lines which caused the Conference of Christians and Jews to redouble its efforts for religious and racial harmony and tolerance, no particular sect in recent years has been subjected to the blatant persecution which has met Jehovah's Witnesses, formerly known as the Inter- national Bible Students. In nearly every country where they have devoted themselves to tireless and fearless proselyting, whether it FREEDOM OF RELIGION 15 be Nazi Germany or democratic America, they have run afoul of mob violence, and governmental interference. Because of their militant disapproval of worldly governments and other denomina- tions, their incessant evangelism has proved an acid test for tolerance. The Witnesses declare that because Armageddon is near, there is no time left for building houses of worship. Instead they go armed with literature, portable phonographs and other propaganda devices that ingenuity suggests to carry the war against Satan and his wicked works into every home in the land. Nor do they mince words about faiths which they regard as prostituted to Satan's purposes ; many Catholics in particular have reacted vigorously to their attacks. One tenet which has involved them in endless dispute, and which has gone up to the United States Supreme Court, is the refusal of Witnesses to permit their children to salute the flag as an emblem of worldly dominance in conflict with the Lord's Kingship. In 1940, the Court, in an opinion by Justice Frankfurter which amazed lib- erals, held that the State had claims superior to religious convictions. "The mere possession of religious convictions which contradict the relevant concerns of a political society," he ruled, "does not relieve the citizen from the discharge of political responsibilities . . . Na- tional unity is the basis of national security." _ Following the Court's decision, a wave of violence broke out upon the heads of Witnesses across the country. Many regarded their stand against flag-saluting as seditious and the Witnesses themselves as un-American. Coming as it did during the public apprehension over "fifth columnists" after the fall of France, the Supreme Court's ruling intensified public feeling against the sect. Those feeling that the majority opinion was a surrender of constitutional protections for minorities against popular clamor found only Justice Stone's dissenting opinion to cheer them: ... it is a long step, and one which I am unable to take, to the position that government may, as a supposed educational measure and as a means of disciplining the young, compel public affirmations which violate their religious conscience. The very fact that we have constitutional guarantees of civil liberties and the specificity of their command where freedom of speech and religion are concerned, require some accommodation of the powers which government normally exercises, when no question of civil liberty is involved, to the con- stitutional demand that those liberties be protected against the action of gov- ernment itself . . . History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the 16 PURSUIT OF FREEDOM name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities . . . . . . This seems to me no more than the surrender of the constitutional protection of the liberty of small minorities to the popular will . . . But only a few weeks before, Jehovah's Witnesses had scored a smashing triumph for the freedom of the press when the same Su- preme Court unanimously on May 20, 1940, had upheld their right to distribute leaflets without permits or other official leave from local authorities. Until then, various municipalities had restricted the distribution of the "poor man's press," inexpensive leaflets. Ordinances ostensibly aimed at the hawkers of commercial handbills had been used by the authorities to prevent distribution of union handbills and religious tracts. Local authorities have continued to harry the Witnesses in their house-to-house canvassing by arresting them on general charges, such as disturbing the peace, disorderly conduct, vagrancy and ped- dling without a license. In one instance the Illinois Supreme Court voided a local ordinance under which a Witness had been arrested for canvassing for magazine subscriptions and distributing literature without a license. The most serious instance of mob violence in Illinois occurred when a group of more than sixty Witnesses drove into Litchfield from St. Louis on June 16, 1940. Soon after their arrival, word swept through town. Quickly groups of men and youths jumped into their cars and began looking for the Witnesses, easily iden- tifiable by their Missouri license plates. The Witnesses' cars were stopped, the men were pulled out and beaten, and then were taken, with the women, to jail. On learning of the trouble, Chief of Police George Taylor deputized fifteen men, some of whom were members of the American Legion. "By general agreement, the men and women, brought in groups of five and six, were placed in the jail . . . No charge of any crime or misdemeanor was entered against the prisoners, then or later." A large American flag was brought to the front of the jail; some of the men Witnesses were forced to salute or kiss the flag as they entered the jail j others were brought out of the jail to do so. Those who remained adamant in their refusal had their arms twisted until in pain they were forced to their knees "in an unwilling gesture of salute." Some of the deputies tried to counsel the mob against violence. The mob, however, destroyed or damaged some thirteen automo- biles belonging to the Witnesses. Sheriff Leo Gilliland of Mont- FREEDOM OF RELIGION 17 gomery County arrived shortly after noon, and soon afterwards a company of state police from Springfield took charge. When the state police arrived, about 1,200 people were milling about in front of the jail. The Witnesses were removed to Hillsboro, seat of Montgomery County, where, after the men were fingerprinted, they were released and permitted to return to St. Louis by bus. "If Litchfield's guardians of the flag would take the trouble to find out what the Jehovah's Witnesses believe, the Bill of Rights would fare better and democracy would stand higher here at home," com- mented the St. Louis Post-Dispatch the next day. Jehovah's Witnesses have been subjected to rough handling by law enforcement officers, as well as by mobs. The Greenville inci- dent, as described in an affidavit by Edgar and Edwin Kircher, two of the Witnesses involved, is a case in point. On the evening of June 8, 1940, eight members of the sect took their accustomed places on the streets of Greenville for the purpose of distributing copies of the Watch Tower magazine. They were soon taken into custody by Sheriff Cecil McCracken of Bond County and some deputies. On the way to the Bond County Jail, the Witnesses said they were roughly treated and struck by the officers. At the jail, according to the affidavit, they were again beaten, although they had offered no resistance. Two of the Witnesses were moved to the Clinton County Jail, where it was claimed they were assaulted in an effort to extort the promise that they would cease bringing their literature into the town of Carlyle or Clinton County. A deputy sheriff was charged with threatening to lead a mob against them if they persisted in coming into his county. The two Witnesses were held in jail six- teen hours without charges being preferred against them. When finally released, they were driven by automobile to within a mile of the county line. On the way, the Witnesses state, they saw the county officers wave at a passing car. Shortly after the Witnesses were left on the highway, this car drew up alongside of them. An- other car soon appeared, whereupon the occupants of both cars took the Witnesses to a side road and beat them in an effort to make them salute the flag. Attempts to suppress in Saline County the work and teachings of Jehovah's Witnesses brought about the adoption by the George Hart Post No. 167 of the American Legion of a resolution banning the distribution of literature and playing of any phonograph records of the sect's teachings in Harrisburg, the county seat, or in the sur- rounding territory. Likewise the Legion Post resolved that the 1 8 PURSUIT OF FREEDOM Witnesses should not be permitted to solicit persons to become fol- lowers of the sect's teachings. The resolution declared : . . . that in the future no Jehovah's Witnesses or any other sect having similar belief shall distribute any literature or play any recordings in the city of Harrisburg or surrounding territory stating publicly that they will neither salute the American flag nor take up arms in defense of this country in the event of an armed invasion. Be it further resolved that no Jehovah's Wit- nesses shall in the future solicit membership to their organization, either in the city of Harrisburg or any surrounding territory. Further arrests of Jehovah's Witnesses were made late in 1940. In Joliet a group distributing literature was arrested on the charge of peddling without a license. In Harrisburg three persons were arrested for distributing anti-Catholic literature. The authorities in this case, as in a Belleville case earlier in the year, invoked a state statute prohibiting the public presentation of a lithograph, motion picture, or play exposing a class of citizens of any race, color, creed, or religion to contempt, derision, or obloquy. Attorneys for the Chicago Civil Liberties Committee, acting as amicus curiae for the Witnesses arrested in the Harrisburg case, maintained that on the basis of the United States Supreme Court decision, the Illinois statute was unconstitutional. Nationally known clergymen have denounced the persecution of Jehovah's Witnesses as an affront to democracy and religious toler- ance. Meanwhile the members themselves, dogged and unflinching, have continued to maintain their views. United States Attorney J. Albert Woll of the Northern Illinois district declared in 1942 that the sect had contributed more conscientious objectors to selective service than any other denomination. Ignoring the provisions of the law permitting conscientious objectors to accept service in special non-military camps, the Witnesses have appeared in court, pleaded no defense, and have been sentenced to the federal peni- tentiary without benefit of newspaper publicity, statements, or any effort to obtain special consideration for themselves. They have undergone the acid test for devotion to their principles, and emerged triumphant in their own conscience if not in public regard. A succeeding generation may say that Jehovah's Witnesses also tested the devotion of Illinois to the principles of religious freedom, and found the state wanting. In a period when religious convic- tions are not fiercely contested and a mantle of tolerance has fallen over once-warring sects, it may be said that the reason Illinois en- joyed a full measure of religious freedom was that nobody really FREEDOM OF RELIGION 19 cared much about issues for which men once were hanged, burned, exiled, and imprisoned. Where fanaticism ruled, there persecution prevailed. But in Illinois in the I940's, Jehovah's Witnesses were about the only religious fanatics left — and they were persecuted. A%A*./T >**«»A : i - ^A-.'v H Aw ,//_. _ B )y$- I j -f ? 1 ^A 11 mLW^M m 2§8 i; A ■ AtV" ife ! i iis pA t A %1 1 ' ;:;;i f 1 CHAPTER III FREEDOM OF THE PRESS Congress shall make no law abridging the freedom of the press, declared the First Amendment to the Federal Constitution; and the first constitution of Illinois, adopted in 1818, carried a positive guarantee of the same right. The State's third constitution, adopted in 1870, used words from the lips of Alexander Hamilton to state: Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives and for justifiable ends, shall be a sufficient defense. Hamilton had defined the American conception of free speech in 1804 during the trial of a Federalist editor for "scandalizing, tra- ducing, and vilifying" President Jefferson. Freedom to print what you please comes first; prior censorship is abhorrent. Limits are set around the right; the aggrieved person may sue or the State may prosecute, but the magistrate may not arrogate to himself the final 20 FREEDOM OF THE PRESS 21 decision. He must let a jury of the accused's peers decide whether libel has been committed. Nor shall the old English rule prevail that truth is no defense. If the statement is true, published without malice and for a purpose consonant with the principles of freedom, no crime has been committed. For five centuries the battle has raged to free the journalist from the bonds of religious and political censorship ; and if the battlefield is no older, that is because Gutenberg did not get around earlier to the matter of movable type, for freedom of the press is only an adaptation of the far older liberty — that of a man to speak his mind.* Peter Zenger was the first American to fall under royal dis- pleasure for speaking his mind in print. Through his New York Weekly Journal in 1733, he criticized the royal governor of New York j his lawyer submitted the truth of the criticism as justifica- tion for publication, even though that ran contrary to the English law. "What strange doctrine is it," said he, "to press everything for law here which is so in England?" Zenger was acquitted and the American press became independent of crown controls. The New York House of Delegates even then had adopted a bill of rights, so it was not strange that the people insisted that the press be guaranteed against federal interference by the Constitution of 1791. The Fourteenth Amendment has been interpreted to expand the freedom of the press to mean that no state, either, shall seek to abridge its independence. Nevertheless no formula has yet been found — perhaps ought not to be sought — to remove from writers and editors the fear of libel. Only congressmen speaking on the floor may say and have printed (in the Congressional Record) what they please. Many an editor has suppressed articles which he felt were true and just, in fear of unpredictable juries, a maze of laws, precedents and rulings — some of them capricious — and the onerous expense of legal defense. Par- ticularly when the truth concerns those with deep pocketbooks, the editor thinks twice before using his freedom. As a result, some of the weightiest truths of modern America are published originally only in "privileged" documents of congressional inquiries or judicial proceedings. The irrepressible conflict led, in its early stages during frontier decades in Illinois, to outrageous violations of the freedom of the press. High on the roll of liberty's martyrs must be inscribed the ♦Because the right of free speech is so fundamental to every freedom, treatment of that subject is found in various chapters dealing with freedom of the press, freedom of assembly and the freedom of various groups to express themselves. 22 PURSUIT OF FREEDOM name of Elijah Lovejoy, Presbyterian minister and militant aboli- tionist who could "make no compromise between truth and error even though my life be the alternative." He meant it. In July, 1836, driven from St. Louis for his vehement opposition to lynch law, Lovejoy settled in Alton, then the most prosperous town in the "free" state of Illinois. When his first press arrived at Alton's dock upon a Sunday morning, religious scruples con- strained him from unloading it. That very Sunday it was dumped into the river by pro-slavers who knew of his St. Louis activities and were determined to have none of them in Alton. Deploring this violence, some of the Alton people held a public meeting, denouncing mob action and abolitionism also. It was upon this occa- sion that Lovejoy made his now famous declaration: As long as I am an American citizen and as long as American blood runs in these veins, I shall hold myself at liberty to speak, write, and to publish whatever I please on any subject, being amenable to the laws of my country for the same. Funds were collected at this meeting to replace the destroyed press and Elijah Lovejoy began his editorship in Illinois. He was not long silent on the disputed theme, and in a few months became more radical than ever with regard to emancipation. As his opposition to slavery intensified, he printed in the Observer a call for the formation of an Illinois State Anti-Slavery Society. The occasion was the Fourth of July, 1837, an d Lovejoy exclaimed to his public: Alas! what bitter mockery is this. We assemble to thank God for our own freedom, and to eat and drink with joy and gladness of heart, while our feet are upon the necks of nearly three millions of our fellowmen ! The call for the anti-slavery society aroused great indignation in some quarters. Though Lovejoy escaped from a mob, again his press was destroyed. Another mob made quick work of a newly- arrived third press in September, 1837, as it lay stored in a public warehouse during Lovejoy's absence from town. The convention which was called to establish the anti-slavery society met in October at Alton's Presbyterian Church. It was a disorderly affair; many pro-slavers attended, some of the partic- ipants were armed, and the entire proceedings were constantly on the verge of riot. There was no regular police protection, and, as it was clear that Lovejoy's next press would be attacked, his sym- pathizers asked the mayor for the right to constitute themselves a militia for its defense and for the preservation of order. The mayor's reply is not a matter of definite record. FREEDOM OF THE PRESS 23 On November 3, a group of Alton citizens held a meeting headed by the attorney general of Illinois. The purpose was, ostensibly, to aid Lovejoy, but his opponents got control and obtained passage of two paradoxical resolutions: Resolved. That a strong confidence is entertained that our citizens will abstain from all undue excitements, discountenance every act of violence to persons or property, and cherish a sacred regard for the great principles con- tained in our Bill of Rights . . . Resolved. That while there appears to be no disposition to prevent the liberty of free discussion, through the medium of the press or otherwise; it is deemed a matter indispensable to the peace and harmony of this com- munity that the labours and influence of the late editor of The Observer no longer be identified with any newspaper enterprise in this city. Lovejoy replied with Lincolnian simplicity and directness: ... I have asked for nothing but to be protected in my rights as a citi- zen — rights which God has given me, and which are guaranteed to me by the Constitution . . . If I have committed any crime, you can easily con- vict me . . . ... I plant myself . . . down on my unquestionable rights . . . and the question to be decided is, whether I shall be protected in the exercise, and enjoyment of those rights . . . ... If I ... go elsewhere, violence may overtake me in my retreat, and I have no more claim to the protection of any other community than I have upon this, and I have concluded ... to remain at Alton, and here to insist on protection in the exercise of my rights. If the civil authorities refuse to protect me, I must look to God; and if I die, I have determined to make my grave in Alton. When the fourth press arrived November 6, 1837, it was placed in the warehouse of Messrs. Godfrey and Gilman, guarded by a group of Lovejoy's supporters. Late the next evening, a hostile crowd gathered before the warehouse. Lovejoy and his supporters were inside, armed for the anticipated battle. The mob demanded surrender of the press. Lovejoy appeared at a window and spoke to them. For the last time he held to his constitutional right to print what he pleased. His exhortations merely fanned the flames of their hatred. In the stoning, shooting, and arson that ensued, two men were killed. The first was a member of the attacking vigilantes, shot from the warehouse loft. The second was Elijah Lovejoy. News of the affray spread fast and far. Newspapers and orators castigated the perpetrators of mob violence. Even a southern re- ligious paper declared: 24 PURSUIT OF FREEDOM The honor of republican governments, the vindication of the character of these United States loudly call upon the civil authorities of Illinois to see to it that the murderers of Rev. E. P. Lovejoy shall be brought to condign punishment . . . When, in 1844, Joseph Smith, leader of the Mormon settlement in Nauvoo, announced his candidacy for the Presidency of the United States, an insurgent group made up of Smith's former followers began publication of the newspaper, Nauvoo Expositor. Its first and only issue boldly attacked the Mormon elders, charged them with embezzling church funds, enticing immigrants to the settlement in order to sell them property, seduction of women, and the secret practice of plural marriages. Also, the theocracy was denounced as a union of church and state. In retaliation, Smith and the city council declared the Expositor a nuisance and ordered it suppressed. Accordingly, the effects of the newspaper were tumbled into the street, smashed with sledge ham- mers, and set on fire. The suppression and demolition of the anti- Mormon newspaper in violation of express constitutional guarantee was followed by a strengthening of anti-Mormon forces and led finally to the expulsion of the Mormons from Illinois. Each war presents its own peculiar challenge to the Bill of Rights. The Civil War posed the issue in aching intensity, for both sides had been preparing for a generation for the final conflict. The mili- tary and other sections of the people took the law into their own hands to get at "copperhead" newspapers ; the federal government itself was directly involved in the controversy over the meaning of the First Amendment. A mob of Unionists destroyed the office of the Bloomington Times in 1862. March 7, 1863, the office of the Belleville Volksblatt was destroyed, allegedly by members of the Republican party who called themselves "Patriots." A German newspaper of Democratic policy, the Volksblatt, was again sacked in May, 1864, this time by soldiers. The Belleville Democrat reported that the soldiers had contemplated its destruction as well, but changed their plans. The Democrat charged the Belleville Advocate , a Republican paper, with urging mob rule against Democrats, and with poisoning the minds of soldiers against them, on the premise that the Democratic press maligned and abused the military. Professor Arthur Charles Cole, historian of that period, notes that: One of the most irritating critics of the administration was the Chester Picket Guard, only a short distance from the military depot at Cairo; in July, 1864, just after it had been refitted and furnished with new presses, a FREEDOM OF THE PRESS 25 mob of soldiers and civilians sacked and completely destroyed the whole equipment . . . In the first year of the war, the Peoria Democrat was denied the privilege of the mails. Military order in July, 1862, stopped circu- lation in Missouri of the Quincy Herald, "on the assumption that it encouraged the rebel bush-whackers." The arrest, that same sum- mer, of the editor and publishers of the Paris Democratic Standard, resulted in a temporary suspension of the paper 5 and in December of that year, the editor of the Jerseyville Democratic Union ran away to escape arrest. In explaining the federal government's denial of the use of the mails to disloyal newspapers, Postmaster General Montgomery Blair said: The freedom of the press is secured by high constitutional sanction. But it is freedom and not license that is guaranteed ... It cannot aim blows at the existence of the Government, the Constitution, and Union, and at the same time claim its protection . . . While, therefore, this department neither enjoyed nor claimed the power to suppress such treasonable publications, but left them free to publish what they pleased, it could not be called upon to give them circulation. It could not and would not interfere with the freedom secured by the law, but it could and did obstruct the dissemination of that which was without the pale of it. The mails established by the United States could not upon any known principle of law or public right, be used for its destruction . . . The ban against disloyal papers was lifted by the Postmaster General on December 15, 1862. The most sensational case of Civil War suppression in Illinois involved the Chicago Times, edited by Wilbur F. Storey. In 1863 the Chicago Board of Trade and the Y.M.C.A. instituted a boycott against the paper, and the Galena and Chicago Union Railroad temporarily forbade its sale on the trains. On July 1, 1863, the Times, along with the Jonesboro Gazette, was ordered suppressed by telegraphic dispatch from General A. E. Burnside, because of "repeated expression of disloyal and incendiary statements." Gen- eral Burnside, without consulting the War Department, ordered the stoppage of the Times press and the seizure of all undistributed copies of the paper. June 3, at three o'clock in the morning, two companies of infantry from Camp Douglas took possession of the plant. Early in the day, prominent citizens, Republicans as well as Democrats, met with the mayor and sent a telegram to President Lincoln requesting that Burnside's order be rescinded; the request was backed by Senator Lyman Trumbull and Representative I. N. 26 PURSUIT OF FREEDOM Arnold. At the same time, the lower house of the state legislature passed a resolution condemning the military order. That night, at a mass meeting attended by 20,000 people, a resolution was adopted to the effect that freedom of speech and of the press be upheld through the subordination of the military authority to the civil. The following day, while sixteen carloads of soldiers were on their way from Springfield to Chicago to quell the disturbance, President Lincoln revoked Burnside's order against the Times. Censorship and control of news during the first World War were more systematic, backed as they were by stringent federal legisla- tion. What is known as the "Espionage Act of 19 17" and its amend- ment in 191 8 are still in effect. One such section of the act itself provides a maximum fine of $1 0,000, and imprisonment up to twenty years, or both, for the making of any false statement with the intention of interfering with the military or naval forces of the United States or of promoting the success of its enemies; or will- fully causing disloyalty, mutiny, or refusal of duty in the military or naval forces; or willfully obstructing recruiting in the armed forces. The "Seditious Libel Amendment" of May, 191 8, imposed the same penalties, applicable in time of war, upon the writing or utter- ing of disloyal or abusive language concerning our form of govern- ment, constitution, flag, military or naval forces; the uttering, writing or publishing of language intended to encourage resistance to the United States, or to promote the cause of its enemies; and the advocating of curtailment of production of any products essen- tial to the war, with intent to hinder the United States in the prose- cution of the war. The constitutionality of this law was challenged in the Supreme Court in Schenck vs. United States (1919) in which the court by a unanimous decision upheld the act, ruling that illegality in publica- tion was to be judged by the criterion of whether or not it constituted a "clear and present danger" to the country's welfare. Elihu Root, statesman and international lawyer, summarized the philosophy of those who believe that in war time freedom of expres- sion should be limited. At a patriotic mass meeting, under the auspices of the National Security League in Chicago, September 14, 191 7, he said: ... A nation which declares war and goes on discussing whether it ought to have declared war or not, is impotent, paralyzed, imbecile, and earns the contempt of mankind and the certainty of humiliating defeat and subjection to foreign control. A democracy which cannot accept its own decisions, made FREEDOM OF THE PRESS 27 in accordance with its own laws, but must keep on endlessly discussing the questions already decided, has failed in the fundamental requirements of self- government . . . Before the decision of a proposal to make war, men may range themselves upon one side or the other of the question; but after the decision in favor of war, the country has ranged itself, and the only issue left for the individual citizen to decide is whether he is for or against his country. From that time on, arguments against the war in which the country is engaged are enemy arguments . . . The men who are today speaking and writing against the war, and against everything which is being done to carry on the war, are rendering more effective service to Germany than they could render in the field with arms in their hands. Fears for the security of the State followed the first World War. Carried over into the post-war period were many of the restrictive measures which are usually odious to many Americans, except in wartime. The seizure of power by the Communists in Russia and the creation of the Soviet Union had considerable effect on the policy of the government to maintain close vigilance of potential revolutionary groups and persons who were known Marxists, and many who were not, in the United States. In Illinois the General Assembly in June, 19 19, passed an "act to revise the law in relation to criminal jurisprudence." This was an amendment to the act in force since July 1, 1874. The amendment, known as Illinois' sedition and criminal syndicalism law, provides in part: ... It shall be unlawful for any person to publish, issue or knowingly sell or distribute any book, paper, document or other written or printed matter which advocates crime or violence as a means of accomplishing the reforma- tion or overthrow of the constitutional representative form of government so secured to the citizens of the United States and the several states . . . In the only case to come to trial under the Illinois sedition law, William Bross Lloyd and other members of the Communist Party were found guilty, among other things, of conspiracy to sell written or printed matter prescribing the violent overthrow of the American form of government. The Illinois Supreme Court in 1922 upheld the convictions of the lower courts. The Sedition Act has been used a number of times to repress or punish the expression of opinion. In January, 1938, following the intimidation of two lawyers defending a man illegally arrested in Westville, a group of miners distributed a leaflet headed : PEOPLE OF WESTVILLE WIPE THE SHAME OFF OUR COUNTY 28 PURSUIT OF FREEDOM Late on a Saturday afternoon, four men distributing the hand- bills were arrested without warrants. All but John Sloan, leading member of Local 5509, United Mine Workers of America, were released that night, but two other distributors were arrested later and held with Sloan. The three miners were not booked until nearly 5 p. m. Monday. Sheriff Harry C. George signed the complaint, charging them with criminal sedition for distributing a "paper which advocated crime and violence as a means of accomplishing the refor- mation and overthrow of the constitutional representative form of government ..." Many months later the charges were dismissed. The exercise of the right of free press does not imply immunity from libel or contempt. It is usually true that when the object of defamation is a judicial personage and the defamation reflects upon him in his official capacity, the court may find the defamer in contempt. One early contempt charge in Illinois was brought against the Chicago Daily American, whose editor and publisher, William Stuart, was found guilty of contempt of court by Judge John Pearson of the Circuit Court of Cook County. His offense consisted in pub- lishing May 7, 1840, an article to the effect that "the weakness of his (Judge Pearson's) head would not admit of the noise and con- fusion of a public trial" and had caused him to order the doors of the courtroom to be closed during a certain murder trial. Stuart was fined $100 and costs. He appealed to the Illinois Supreme Court, where the conviction was reversed. The court said: . . . An honest, independent, and intelligent court will win its way to public confidence, in spite of newspaper paragraphs, however pointed may be their wit or satire, and its dignity will suffer less by passing them by un- noticed, than by arraigning the perpetrators, trying them in a summary way, and punishing them by the judgment of the offended party . * . In 1875, the Chicago Times called members of the grand jury "common drunkards," "bummers," "sports," and "gamblers." This contempt of court was committed after the grand jury had indicted the Times on four counts involving obscenity and libel. Accordingly, Editor Storey was sentenced to ten days in the county jail for con- tempt, but was instead released when the Illinois Supreme Court reversed the decision of the lower court. Several Chicago newspapers energetically defended the Times, arguing that this broad interpretation of contempt jeopardized the newspaper's freedom to discuss public men or judicial procedure. They caused to be introduced into the General Assembly a bill, FREEDOM OF THE PRESS 29 distinguishing between actual contempt and "mere fiction construed by courts into contempt." The bill was not passed. Near the end of the long strike of the Chicago Newspaper Guild against the Hearst newspapers in Chicago in February, 1940, Louis F. Budenz, editor of the Chicago Record Weekly (left-wing newspa- per), William L. Patterson, associate editor, and Robert Wirtz, acting state secretary of the International Labor Defense, were cited for contempt by Judge John J. Lupe of the Superior Court for criticizing the use of his court as an instrument to break the strike. The charges were preferred after Budenz editorially had endorsed an appeal by the International Labor Defense to protest Judge Lupe's injunction against the Guild. Budenz had defended the distribution of I.L.D. leaflets to the effect that the "Department Store Trust is joining with Hearst in attempting to use the courts for strikebreaking." (The stores had filed affidavits and sought supporting injunctions to prevent the Guild from picketing stores which advertised in the Hearst newspapers and had urged that citizens lodge their protests in the judge's chambers.) The trial, postponed several times, finally was set for April 19, 1940. The case was dismissed. There are two kinds of libel in which the exercise of a free press may be involved: civil and criminal. In the first, an individual may sue for money damages for injury to his reputation, character, or business; in the second, the state prosecutes just as in any other criminal case. Under the Illinois Criminal Code: A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the nat- ural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury. The constitutional provision that truth, when published with good motives and for justifiable ends, is a defense in all prosecutions for libel is reiterated in the statutes, in regard to both criminal and civil libel. National legal precedent was set when the city of Chicago lost a civil libel suit for damages of $10,000,000 against the Chicago Tribune in December, 192 1. The suit was based on articles in the Tribune charging the city with being bankrupt, and so improperly and corruptly governed that its streets were not properly cleaned and the laws loosely enforced. The suit was based on the theory that since a municipal corporation holds property, conducts business, 30 PURSUIT OF FREEDOM and requires credit, it is subject to injury by libelous publications and may therefore sue for damages. The Tribune filed a demurrer, chiefly on the ground that a mu- nicipality is a political agency, an agency of government, and that to permit a suit for civil damages for libel would be infringement upon the right of free speech and free press. On this ground Judge Harry M. Fisher of the Circuit Court of Cook County sustained the demurrer, saying: We do not contend there are no proper limits to the freedom of the press. But these limits are in principle well defined. Their object is to protect the rights of the individual, not to prevent criticism of government or of public officials . . . Democracy has come to mean government by public opinion, and in our age, within our vast political entities, the press is an essential agency for the formulation of public opinion . . . There are no adequate alternatives to criticism of public administration by and through the press. The Illinois obscenity statute, passed in 1874, provides for fine or imprisonment of anyone who sells, gives away, has in his pos- session, or brings into the state to sell or exhibit, any obscene and indecent book, pamphlet, paper, drawing, lithograph, engraving, daguerrotype, or photograph. The law also applies to persons ad- vertising the "indecent" articles. In addition, it prohibits leaving such articles with any post office, express office, common carrier, or other agent for the purpose of having them delivered; it applies to persons knowingly accepting them for the purpose of sending them out by mail, express, or otherwise, and to persons conveying them (except in the mails), as well as to the original offender. Of par- ticular interest is the provision that half of the fine levied against an offender is to be paid to the informer upon whose evidence he is convicted. Obscenity laws do not define obscenity. Determination of whether a book is obscene and its owner or seller liable to punishment under the criminal code is left to the jury to decide. In the case of matter going through the mails, it is left to postal authorities, who, as in the case of seditious matter, may issue an exclusion order or bring criminal charges. What is held obscene at one time, in the opinion of one authority or one jury, may not be so deemed at another time, by a different (or conceivably even the same) authority or jury. In 19 1 7 an amendment was added to the state criminal code making it a misdemeanor to publish, exhibit or sell any lithograph, motion picture, play, drama, or sketch portraying the depravity, criminality, unchastity or lack of virtue of a class of citizens of any FREEDOM OF THE PRESS 31 race, color, creed, or religion. This law recently has been applied against the Jehovah's Witnesses, a religious sect, for distributing literature attacking established religions. The Chicago Municipal Code has supplementary provisions against exhibiting, selling, or otherwise distributing indecent books, pictures, and advertisements. A recent and widely publicized instance of restraint on the ground of obscenity was that involving Life, a weekly picture magazine, which, April 11, 1938, published a series of stills from a motion picture, The Birth of a Baby. The film had been banned by the New York Board of Censors before the publication of the issue of Life containing the photographs. The pictures showed actual birth scenes, with explanatory diagrams and text. Although the Post Office Department approved the distribution of the magazine through the mails, Publisher Roy E. Larsen was charged in New York with selling "obscene and indecent" literature and photo- graphs. He was acquitted. By order of the Chicago Police Depart- ment, only copies of Life from which the disputed pictures had been cut were allowed on the Chicago newsstands. In Oak Park, after the magazine had been on sale for several days, the chief of police ordered its removal because of complaints from some of the villagers. To combat obscenity, volunteer guardians of morality have formed such organizations as the Illinois Vigilance Association. Under the leadership of Philip Yarrow, the association has been active in Chi- cago for more than thirty years. In the winter of 1929-30 the association instituted a drive against several prominent Chicago booksellers. Agents of the association, posing as customers, per- suaded book dealers to order erotica, and then had them arrested on a charge of offering obscene literature for sale. The booksellers were released on a cash bail of $1,000 and brought to trial. The Chicago Evening Post undertook to expose these agents provocateurs in a series of articles appearing from January 6 through January 13, 1930. January 11, the newspaper published a photo- graph of a "smut money" check issued by the Municipal Court of Chicago and made payable to the Illinois Vigilance Association. The Post suggested that the Illinois statute awarding the informer half the amount of the fine collected from the offender might well be the incentive for the zeal for reform. In 1935, the association caused the arrest of several book dealers for handling Frank Harris' biography, My Life and Loves, a title included in the "banned" list of the United States Customs. In 32 PURSUIT OF FREEDOM 1938, through the efforts of Yarrow, more than 200 magazine deal- ers were arrested and charged with selling obscene literature. Local ordinances have sought to limit the free distribution or sale of pamphlets, handbills, leaflets, magazines, and even newspapers (if they expressed views objectionable to constituted local author- ity), under the guise of preventing littering of the streets or obstruc- tion of traffic. In 1922 the Chicago City Council enacted an ordinance forbidding the distribution of handbills and leaflets of all kinds in any public place, making no distinction between commercial advertising matter and other announcements. Under this ordinance, Anna Schultz was arrested and fined in February, 1930, for handing out to workers of the stockyards leaflets announcing a meeting. The Illinois Supreme Court reversed the conviction and held the ordinance unconstitutional, saying: "This private right to announce a meet- ing by means of leaflet distribution is as essential as the right to assemble." The court further said: . . . The ordinance also prohibits the handing out or distribution of any advertising matter of any kind whatsoever, and it would seem that under this broad restriction the distribution of newspapers would also be prohibited, as they all contain advertising matter. Laws which attempt to regulate and re- strain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty. Under our constitution and system of government the object and aim are to have the individual entirely master of his own conduct, except where the public good requires some direction or restraint. To clarify the handbill issue, an ordinance was passed by the Chicago Council in 1931. Though this ordinance specified only advertising matter, the Chicago police — not having been instructed otherwise — persisted, from time to time, in arresting people for distributing non-commercial leaflets ; and in 1937 the police applied the handbill ordinance against persons handing out copies of a labor newspaper, the People's Press, to workers leaving the Zenith Radio plant at the end of the day. That particular issue of the paper was concerned mainly with the organizational campaign of the United Electrical and Radio Workers Union. The police stated that the arrests were made on the complaint of the Zenith management, which did not want "labor agitators" around. The attorney for the Chicago Civil Liberties Committee defended the distributors and the cases were dismissed. In answer to a letter from Police Commissioner James P. Allman, FREEDOM OF THE PRESS 33 asking whether the handbill ordinance was being violated when the People's Press was handed out and allowed to drop on the street by recipients, Corporation Counsel Barnet Hodes, November 2, 1937, rendered an opinion intended to clarify the enforcement of the ordi- nance. That opinion embodied the following points: (1) the People's Press was a weekly publication, mainly devoted to labor news, but also contained advertisements and other general newspaper features, so that both its form and character required its being con- sidered a newspaper rather than a handbill ; (2) the clause against distributing advertising matter of any kind otherwise than from hand to hand without tossing or throwing was not violated because the People's Press was distributed from hand to hand ; ( 3 ) what hap- pened to the paper after it was passed out was not covered by the ordinance, so long as it was distributed in such manner as to "avoid the likelihood of falling while being passed out" 5 (4) if the ordi- nance, aimed at the distribution of advertising matter, were con- strued to include newspapers, it would fall under the condemnation of the earlier ordinance declared unconstitutional in the Schultz Case; (5) the legislature has not expressly empowered cities to pro- hibit the distribution of handbills or advertising matter of any kind; a city's power in that respect is incident to its power to regulate the use of streets and its general police power, both of which must be reasonably exercised; (6) if handbill distribution is accompanied by unlawful acts, such as obstructing traffic or creating a breach of the peace, the matter is governed by other laws; therefore, a reasonable exercise by the city of its power to regulate the use of the streets, in the matter of handbill distribution, relates only to the prevention of littering; (7) under such reasonable exercise of the powers of the city, the distribution even of newspapers in such manner as to litter the streets may be prohibited and punished under the ordinance, but the ordinance does not prohibit the handing out of newspapers with- out tossing or throwing, even if they are thrown away by the recipients. September 9, 1938, Assistant Corporation Counsel of Chicago Mar- tin H. Foss rendered an opinion, approved by Corporation Counsel Barnet Hodes, to the effect that the police department took proper action when it stopped the distribution of handbills at the gates of the Carnegie-Illinois steel mills by members of the Steel Workers Organizing Committee. The opinion was based on the fact that the handbills, which advertised a steel workers' Labor Day celebra- tion, were larger than the size prescribed in the ordinance and that the public streets and sidewalks were being littered by the distribu- 34 PURSUIT OF FREEDOM tion, as most recipients let them drop to the ground after glancing at them. However, the corporation counsel later reversed his opinion. The decision of the United States Supreme Court in the Lovell Case in 1938, constitutes a landmark in the struggle against local ordinances requiring a permit for the distribution of handbills or pamphlets. The Supreme Court reversed a conviction by the trial court of Griffin, Georgia, for distributing a pamphlet on private property without a permit. The reversal was on the ground that an ordinance requiring a permit for the distribution of unobjection- able matter violated freedom of the press. In delivering the opinion of the Court, Chief Justice Charles Evans Hughes said of the ordinance: The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation com- prehends every sort of publication which affords a vehicle of information and opinion. Following this decision of the high court, Police Commissioner James P. Allman requested an opinion from Corporation Counsel Barnet Hodes as to the policy to be followed by the Chicago Police Department in regard to the distribution on the public ways of handbills, leaflets, and circulars, dealing with social, economic, and political questions. September 14, 1938, Mr. Hodes rendered the following opinion: In the enforcement of this ordinance, the first question to be determined by your Department is whether or not the handbill in question constitutes adver- tising matter; if this question is answered in the negative, distribution of the handbill is not affected by the ordinance. As we have stated, the ordinance deals only with the distribution of advertising matter, and handbills whose only purpose is to present political, economic and social views and arguments do not fall within its scope . . . The United States Supreme Court in November, 1939, further clarified its position on leaflet distribution in a group of four cases. Three of these were argued by Osmond K. Fraenkel, counsel for the American Civil Liberties Union, which paid the entire expense of one case and half the costs for the other two. The opinion, handed down by Justice Roberts, with only Justice McReynolds dissenting, marked an advance over that taken in the Lovell Case of 1938. Whereas in the earlier opinion the Court was concerned only with leaflet distribution on private property, in the more recent opinion FREEDOM OF THE PRESS 35 it established the right of distribution, without license, also on public ways and in public places. While in the former case the Court expressly intimated that if leaflet distribution caused a littering of the streets or obstruction of traffic, it might be punishable, in the latter cases it said: . . . We are of the opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power tc prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets. The court also declared that freedom of the press is protected not only against federal interference, by the First Amendment, but also against state interference, by the due process clause of the Fourteenth. Other important points were embodied in the decision. For in- stance, the court declared that house-to-house distribution of litera- ture of ofinion y even when accompanied by solicitation for funds, may neither be prohibited nor subjected to permit requirements, although municipalities may impose some regulation on house-to- house canvassing, such as a limitation on the hours during which canvassing will be permitted. The extent to which municipalities might limit such canvassing for commercial purposes was left open by the court. The opinion of the court did not distinguish between street distribution of literature of opinion and like distribution of commercial or advertising literature. In other words, handbills advertising meetings for which there is an admission charge are treated as literature of information and opinion. With all these decisions of the Supreme Court, and the opinion given by Corporation Counsel Barnet Hodes on the Chicago hand- bill ordinance, the Chicago police still make occasional arrests for handbill distribution. October 16, 1940, the day of general regis- tration for the draft, two theological students and one University of Chicago student, the wife of a minister, were arrested for distributing to registrants a 6x4-inch folded leaflet urging the repeal of con- scription by every democratic means possible. On the same day, members of the 131st Infantry were not molested when they passed out leaflets to registrants, stressing the advantages of being in the 36 PURSUIT OF FREEDOM National Guard and urging them to join. The case against the persons arrested was dismissed. Under an ordinance of the village of South Holland prohibiting anyone from going "in or on" any private residence for the purpose of soliciting or canvassing for orders for "goods, wares, and mer- chandise" without a permit, a member of Jehovah's Witnesses was arrested for taking subscriptions for the sect's magazine and fur- nishing other printed publications without having obtained a so- licitor's permit. Upon trial, the defendant was fined five dollars and costs. In April, 1940, the Illinois Supreme Court reversed the conviction and held the ordinance invalid and in violation of the free speech and press provisions of the state and federal constitu- tions. Said the court: The constitution of Illinois is even more far-reaching than that of the con- stitution of the United States in providing that every person may speak freely, write and publish on all subjects, being responsible for the abuse of that liberty. Webster's International Dictionary defines the word "publish" as meaning "to bring before the public as for sale or distribution." In 193 1, the year the present Chicago handbill ordinance origi- nally was approved, the city council also adopted an ordinance restricting the sale of everything but daily newspapers in certain congested areas. Charles Rhine was arrested in 1935 for selling the magazine, Common Sense, within the restricted Loop area. Other magazines were being sold freely at Loop newsstands, but Rhine was selling a magazine containing a denunciatory article on William Randolph Hearst in the vicinity of the Hearst Building. When the case came to trial, Judge Eugene L. McGarry of the Municipal Court of Chicago dismissed it and entered an order declaring the ordinance unconstitutional. January 7, 1936, the corporation coun- sel's office rendered an opinion that the municipal court had erred in dismissing the city's complaint and that the ordinance was con- stitutional. Upon appeal by the city, the Illinois Supreme Court reversed the Municipal Court order and upheld the ordinance. The expense involved made it impossible to take the case to the Supreme Court of the United States. In its defense of Rhine, the Chicago Civil Liberties Committee had pointed out, among other things, that the law was unfair in that it was applied only against those publications whose views were not popular with the local authorities. In the early summer of 1938, persons selling the Midwest Daily Record, a left-wing newspaper, were arrested under the above ordi- nance. In answer to an inquiry from Police Commissioner Allman as to the legal right of persons selling that paper to be free from FREEDOM OF THE PRESS 37 arrest, Corporation Counsel Hodes, recalling that the validity of the ordinance, including the exemption in favor of newspapers, had been sustained in the Rhine Case, said: . . . To be valid, however, the exemption must apply equally to all daily newspapers; its application cannot be made to depend upon the economic or political views of a particular newspaper. The constitutional guaranty of free- dom of the press protects the publication and circulation of a newspaper ex- pressing views with which a majority of citizens may violently disagree; any other construction would reduce the constitutional protection to a mere form of words. A short time late a worker for the Socialist Labor Party, selling a pamphlet entitled John L. Lewis Exposed, at the intersection of Michigan Avenue and Randolph Street, was threatened with arrest unless he stopped. On the precedent of People vs. Thompson, in which the Illinois Supreme Court held that "No one has any in- herent right to use the streets or highways as a place of business," and of the Rhine Case, Corporation Counsel Hodes upheld the action of the police. He pointed out, however, that: In the administration of this ordinance, the police department is no more concerned with the economic or political views expressed in a publication of- fered for sale upon the streets than with the value or usefulness of any other article offered for sale upon the streets . . . Discriminating in favor of publi- cations advocating certain political theories and policies and against those advo- cating opposing theories and policies would certainly render the ordinance invalid. Nevertheless, the sale of other national magazines, such as the Saturday Evening Post, Collier's, Life, Time, and Social Justice, continued unmolested in the Loop. Finally, when the municipal code was revised in 1939, the ordinance in question was dropped. The only questionable ordinance involving freedom of the press now remaining in the city code in regard to the distribution or selling of literature on the streets is a restriction adopted in 1935, that nothing shall be offered or sold from newspaper stands except daily newspapers printed and published in the city. Since no atten- tion is paid to this regulation in the case of numerous national maga- zines and various out-of-town papers, it would seem that its purpose is to provide a loophole for preventing the sale of magazines and newspapers that may meet with the disapproval of city officials. The ordinance was passed with the backing of Chicago newspapers. America's entry into the Second World War was accepted more or less gracefully by Illinois newspapers which had resolutely fought against "intervention." Editors of many smaller papers had taken 38 PURSUIT OF FREEDOM their cue from the powerful Chicago Tribune^ self-styled "The World's Greatest Newspaper," whose publisher, Col. Robert R. McCormick, had argued that America should not involve itself in Europe's wars. That America was in reality no more isolated from the world than Europe and that actually the world's troubles were America's troubles were arguments that met stony resistance in the minds and hearts of millions. To these the Chicago Tribune and scores of little Tribunes in the great Midwest which was described as "Chicagoland" made a powerful appeal. Once war had been declared and it was apparent that Col. McCormick was as intransigent as ever in his opposition to the Roosevelt Administration, the demand arose for the suppression, somehow, of the Chicago Tribune. Boycotts had been instituted at various times, but with little success — to judge by the soaring circu- lation figures of the McCormick paper. After the government had deprived Social Justice of its mailing privileges, many critics of the Tribune were emboldened to demand similar action. The Tribune fought back resolutely against those who charged it with defeatism, armoring itself behind freedom of the press, a principle for which Col. McCormick had long editorialized. His newspaper counter- attacked, claiming that a "communist" conspiracy had drawn even the Life-Time-Fortune "axis" into this effort to gag the press. Is preservation of the Union superior to the right to advocate its destruction? In peacetime, judges generally but not universally hold that the right of free expression is uppermost. Abraham Lin- coln himself upheld the right of a people to overthrow their Gov- ernment. In wartime, such rights may rightly be the first casualty. Justice Oliver Wendell Holmes and Louis D. Brandeis, among the most eloquent apostles of freedom ever to sit on the Supreme Bench, have declared: Although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. While absolutist champions of liberty have argued, in glowing terms, that the State must stand by while a successful assault is being committed against its very existence, actually no Government run by human beings has yet been content to permit sedition to over- throw it. The point at which the possibility of overthrow passes from the academic to the practical has been defined as the limit of that "clear and present danger" which justifies limitation of civil rights by the State. Inasmuch as no yardstick has yet been devised to FREEDOM OF THE PRESS 39 measure that point at which equilibrium is destroyed and the state may totter before its critics, no principle of the Bill of Rights has been subjected to more endless controversy. The growing concentration in the publishing business, reflected in the decline in the number of Chicago daily newspapers, has posed questions about the nature of "the freedom of the press" now enjoyed in this country. How free, for example, are publishers and editors from the influence of their advertisers? Now that the bulk of news- paper income is derived from advertisers rather than subscribers, and many magazines of large circulation actually derive no net reve- nue from their subscriptions, it is claimed that publishers have little freedom in the expression of views unacceptable to large advertisers. As most publishers themselves are in the higher income brackets, the conflict probably rarely presents itself, because their views largely coincide basically with that of the larger advertisers. The possibility that in wartime advertising revenues will drop sharply when many advertisers have little or nothing to present for sale has caused considerable discussion. Edward R. Grace, a Detroit advertising executive, phrased the problem in an article condensed in the Chicago Sun of May 18, 1942: "It is obvious," said Mr. Grace, "that if newspapers are to retain their full potency, business as a whole must reappraise their value. Business will have to make it a point to see that newspapers do not become anemic, due to a starvation diet of reduced advertising patronage." With the balance in revenue more evenly swung between adver- tisers and subscribers, the press may be weaned away from its busi- ness patrons, Mr. Grace warned. "Champions remain champions only so long as their muscles and bone structure are kept in healthy, strong condition." Editors and publishers may not battle so strenu- ously for "private enterprise," he observed, if "private enterprise" reduces its contribution to their expenses. He urged that "as servants of the American public, American business must report to the public. It must take leadership in molding the thoughts and the actions of the public. Perhaps it would be a good thing if business leaders turned into 'editors' themselves. . . . Let's not leave all the edi- torial job to the editors! " To make up in the decline in regular sales advertising, Mr. Grace urged corporations to buy generously of newspaper space in order to submit reports to the public. "A new type of editorial adver- tisement is needed — the kind of message that includes a discussion of all the facts as they pertain to a business operation." 40 PURSUIT OF FREEDOM The problem of who "controls" the "free press 1 ' is not new. Thomas Jefferson complained: "A suppression of the press could not more completely deprive the nation of its benefits than is done by its abandoned prostitution to falsehood. Nothing can now be believed which is seen in a newspaper." Sections of the American press have been so realistic about the use made of its freedom that no intelligent reader need be under any illusions about the purpose of the press as a news distributing agency. The Wall Street Journal of January 20, 1925, declared that: A newspaper is a private enterprise, owing nothing whatever to the public, which grants it no franchise. It is emphatically the property of the owner who is selling a manufactured product at his own risk . . . the proprietor of the paper . . . most properly considers his newspaper as a plain business proposition. It is just that, no more and certainly no less. William Allen White, wrote of the political bias of newspapers: The deficiencies of American journals in treating the news of what we might as well frankly if regretfully call the class struggle in this country are found largely in unconscious political attitudes. It is so easv to "policy" the news. Indeed, it is so hard not to policy the news when the news is affected with a vital bread-and-butter interest to the capitalist who controls a news- paper, great or small. The Federal Trade Commission reported the existence of a $25,000,000-a-year propaganda fund which the giant power interests employed to supply the newspapers with articles and editorials against government ownership of public utilities and public develop- ment of water power. It may be that newspaper editors and pub- lishers, even when not influenced, have a personal bias in favor of private or corporate utility ownership. It was reported before the Federal Trade Commission in 1934 that "after years of propaganda and advertising the utilities obtained from two hundred and twenty- three Illinois editors a vote of one hundred and ninety-one against government ownership." Among the forces charged with exerting influence on the use made of the free press are department stores, whose advertisements have helped to make the large Sunday edition profitable and therefore possible. When, in Chicago, the vice-president of Marshall Field's was indicted for bribing aldermen to pass an ordinance permitting him to bridge the two Field buildings, the newspapers preserved a respectful silence during the five days of the trial. Only a German- FREEDOM OF THE PRESS 41 language paper carried the story. That accidents in department stores are suppressed or "played down" by the newspapers is now a truism. To expose such hidden news E. W. Scripps and Negley Cochran brought out the Chicago Day Book, an adless newspaper, in 191 1. Department store labor struggles, maltreatment of employees, and store accidents constantly were scrutinized by the paper. Other targets were alleged "invisible government," faulty garbage disposal, the circulation war, and local monopolies. The Day Book lasted until I 9 I 7- Following the publication in 1906 of The Jungle, a Actionized expose of conditions in Chicago's packing industry, a series of articles signed by J. Ogden Armour appeared in the Saturday Evening Post, repudiating the arraignment made by Upton Sinclair, the author of The Jungle. Sinclair retaliated with an article in Everybody's Magazine entitled "The Condemned Meat Industry," and stated: ... I had expected that every newspaper which boasted of public spirit would take up these charges, and at least report them; but instead of that, there was silence — silence almost complete. The use the press makes of its freedom to print or decline to do so was illustrated by the manner in which the facts about the amoebic dysentery epidemic in Chicago were ignored at the height of the Century of Progress exhibition season in 1933. It was an incident in which the Chicago Board of Health came in for a full share of responsibility for suppression of information imperative to the health and safety of the public. Dr Herman Bundesen, president of the Board of Health, discovered seventeen cases of infection in August, and one hundred and eighteen in October, and reported the matter to the meeting of the American Public Health Association, held in Indianapolis, in October. He did not, however, issue a general warning through the papers until November 8, a few days before the exposition was to close. Indianapolis papers, on sale in Chicago, publicized the epidemic early in October; but no Chicago paper mentioned it until after Bundesen's official warning. Accused of suppressing mention of the epidemic, the Chicago press blamed the health department. In March, 1934, the Chicago Medical Society adopted a report censuring Dr. Bundesen. An ironic commentary on the "freedom of the press" was fur- nished when Marshall Field, Chicago's wealthiest citizen, decided to enter the Chicago morning newspaper field. Newspapermen were agreed that no one could challenge the monopoly of the morning field enjoyed by Colonel McCormick's Tribune for less than 42 PURSUIT OF FREEDOM $ 10,000,000. When the debate over America's entry into the Second World War waxed to feverish pitch, many people considered the publication of a morning paper in the Chicago area supporting the President's foreign policy to be the most crucial need in the entire publishing field. But no person or group of persons of great wealth could be found who were willing to enter the field in which Colonel McCormick had made himself supreme. As a matter of fact, there was perhaps no Chicagoan of sufficient wealth to back such a venture except Mr. Field who decided in 1941 to risk his millions in the publication of the Sun. A third paper, the Chicago Times, reviewed the newspaper war between Field and McCormick as a battle of multimillionaires, representatives of the two greatest Chicago for- tunes. Freedom of the press was open in the Chicago morning field, it was evident, only to men of greatest wealth. Many believed that the Tribune would prevent the Sun from reaching the newsstands. Those tactics had been used before. But the Sun took its place on the newsstands of Chicago. The authentic story of a bloody circulation feud from 19 10 to 1920 has been accurately told by others in their disclosures of the racket and gangster regime in Chicago. The story properly belongs to the chronicle of crime and hooliganism sometimes incited by rival newspapers engaged in hostilities of the kind waged by gangsters and camarillos. The newspaper terrorism in the violent distribution war in 1920 was considered by the Chicago Journal of Commerce, a victim of the terrorism, to be a menace to the freedom of the press. It has been said that out of the circulation war "grew the worst reign of lawlessness in Chicago that any city ever has known." The Chicago Daily Times, whose Sunday edition was subjected for about six months to the pressure of newsstand intimidation in a revival of the circulation war in 1932, set forth editorially the seven articles of the Canons of Journalism, a code of ethics adoptd by the American Society of Newspaper Editors in 1923. About 80 per cent of American newspaper editors are included in the society. The code sets forth as obligations of the press : Responsibility, Freedom of the Press, Independence, Sincerity, Truthfulness, Accuracy, Impartial- ity, Fair Play, and Decency. The press in Illinois, as well as in the rest of the United States, is free to say practically what it will. There are no political book- burnings, no government-controlled newspapers, no concentration camps for intransigent authors and editors. When local officials and lawmakers overstep their bounds, there are the courts, municipal and state. When the lower courts fall short in their conceptions of FREEDOM OF THE PRESS 43 freedom of the press, there is the Supreme Court of Illinois and the Supreme Court of the United States to which to appeal. In the use made of its freedom, the press is more frequently subjected to public condemnation for the unethical practices used in gathering or producing its materials for sale. What is known as "yellow journalism," though sharply condemned by the public, gets itself read, and — by competition — imposes upon the more ethical of the craft, some of the same practices so odious to con- structive social forces. The Daily Times, which in 1939 won the Chicago Civil Liberties Committee Award for Meritorious Service on Behalf of Civil Liberties and American Democracy, said in part on the canon of freedom of the press: It is worth noting that the canon . . . does not call freedom a vital right of the press, but rather a vital right of mankind. All too often this is overlooked . . . Why is a free press a vital right of mankind? So that publishers and editors shall have untrammeled privilege to utter what they please ? There is an axiom as ancient as Anglo-American law which says that for every legal right there is a legal responsibility. For the right of ever- lasting freedom there rests upon the press the responsibility, none the less solemn because it is intangible in quality, to maintain the people's rights . . . Today the free press is "a vital right of mankind" only insofar as the press makes it so by jealously defending the interests of the people — of all the people. CHAPTER IV CENSORSHIP Despite explicit guarantees in both Federal and Illinois consti- tutions of the right of free expression, censorship exists, backed by a multitude of federal, state and local laws. Many of these defer to public sensibilities in regard to morals ; others represent the tri- umph of special interest groups in suppressing that which is distaste- ful to them. Freedom of expression and good taste may lock in combat. Obviously immorality is not to be encouraged, but how define immorality in the face of a public opinion subject to nimble and inconsistent changes? Only a few years ago one-piece bathing suits were considered lewd. Chicago banned Tobacco Road while New York saw it for a seven-year run. Hollywood parades semi-nude girls in endless review, while The Birth of a Baby and Fight for Life, sober treatment of an important theme, are forbidden. Western 44 CENSORSHIP 45 films flicker across ten thousand screens but Chicago tried to bar anti-Nazi films because they showed scenes of violence. If the censors through the ages had triumphed, our literary heri- tage would be thin indeed. The censor strikes at the new and experi- mental, in defense of the established dogma. George Bernard Shaw summed it up : All censorship exists to prevent anyone from challenging current concep- tions and existing institutions. All progress is initiated by challenging current conceptions, and executed by supplanting existing institutions. Consequently the first condition of progress is the removal of censorship. There is the whole case against censorship in a nutshell. Present-day censorship may be legally constituted, or may be imposed by religious authorities over the citizenry in general or by self-constituted groups, or may be adopted, more or less voluntarily, as by the radio and motion picture industries. The Post Office, Customs Bureau and Federal Communications Commission house the federal censors. The Post Office Department does not supply advance information as to whether printed matter is legally mailable. After the material is mailed and found mailable under the law, the Postmaster General may issue an exclusion order, upon his own discretion and without court trial; the Post Office Department may bring criminal charges against the sender, or the sender may be subject to both an exclusion order and criminal proceedings. If the Post Office Department finds, upon its own investigation, that an individual or firm deals in fraudulent, obscene, or seditious publications, it may issue a fraud order, under which all mail addressed to such individual or firm is returned to the senders. If a sender wishes to test any exclusion order, he must not only prove in court that his material is fit for mailing, but he also must prove that the postmaster general has grossly abused his discretion. The courts will not reverse the decision of an administrative officer unless he is "clearly wrong." Through his power to refuse second-class mailing privileges, the Postmaster General has been able to exert a great control over radical publications. During the first World War, with the passage of the Espionage Act and its amendment, the Postmaster General's power was greatly increased. One section of the act, which applies in peace- time, as well as in wartime, excludes from the mails all matter advocating "treason, insurrection or forcible resistance to the United States." The Espionage Act was used to suppress several radical Chicago 4.6 PURSUIT OF FREEDOM publications. The first of these was the Alarm, namesake of the Alarm of Haymarket days. It was barred from the mails because it contained an anti-militarist statement by Jack London, in its December, 19 15, issue. On a charge that Solidarity, an organ of the Industrial Workers of the World, published in Chicago, was not a "newspaper of gen- eral circulation within the meaning of the law," it was barred from the mails in October, 19 17. The second class mailing privileges of two other Chicago publications, the American Socialist and the Eye Opener y were revoked. The International Socialist Review was not completely banned, but continually harassed. After the war, Postmaster General Will Hays quashed the in- clination of his department to continue exercising wartime censor- ship. Concerning the exclusion from the mails of certain radical publications, he declared, "Either these publications should be entirely suppressed and their publishers prosecuted, or they should be given mailing rights in common with the other publications of the country." From 1921, when Hays took office, until 1930, no Illinois publication was denied mailing privileges under the section of the Espionage Act applicable in peace times, and comparatively few were excluded under other political restraints. Though hard to define, "obscenity" frequently is the charge on the basis of which the use of the mails is denied, or criminal prosecu- tion is undertaken. Post Office censorship began in 1865 with the passage of a law excluding from the mails all "obscene, lewd or lascivious or filthy books, pamphlets, pictures, papers, letters, etc.," and other publications of "indecent character." In 1873 information and articles having to do with birth control or abortion were included in the banned list, as well as all matter "containing any filthy, vile, or indecent thing." Legislation in 1888 and again in 1909 banned envelopes, wrappers, and post cards containing indecent language from mailing privileges. The Illinois obscenity statute, passed in 1874, provides for the fine or imprisonment of anyone who has in his possession, sells, gives away, or brings into the state to sell or exhibit, "any obscene and indecent book, pamphlet, paper, drawing, lithograph, engraving, daguerreotype, or photograph" j the law applies also to persons advertising the "indecent" articles. It prohibits leaving such articles with any post office, express office, common carrier, or other agent for the purpose of having them sent out; it applies to persons know- ingly accepting them for the purpose of sending them out by mail, express, or otherwise; it also applies to persons conveying them. A CENSORSHIP 47 fee is paid to the informer upon whose evidence offenders are convicted. An example of the local application of the postal regulations against obscenity was the case of Moses Harman, who in the early 10.00's was editing in Chicago a journal named Lucifer, which dealt with birth control. Chicago postal authorities barred one issue from the mails and confiscated the copies. Harman was sentenced to a year's imprisonment. Before he entered the penitentiary, other issues of Lucifer were excluded from the mails and Eugenics, its successor, was threatened with the loss of second-class mailing privileges. In 191 1 the postal authorities, working under a provision of the postal law excluding from the mails indecent pictures and obscene manuscripts, refused mailing rights to The Social Evil in Chicago, a Study of Existing Conditions. This was the report of the Vice Commission of Chicago, headed by Rev. Walter T. Sumner, dean of the Episcopal Cathedral of SS. Peter and Paul. A. postal official who fails to exclude an obscene and indecent picture or book is liable to a fine of $5,000 and to a penitentiary sentence of ten years. The Bureau of Customs is a censor of foreign books, prints, paint- ings, lithographs, engravings, and transparencies, for which entrance into the United States may be sought. However, the Bureau must first obtain a court decision determining that the content of books or other matter is obscene or seditious before they can be barred. In 1909 an attempt was made to prevent the Field Museum of Natural History, Chicago, from importing Chinese pictures and manuscripts on the ground that they were obscene. Overseeing all radio broadcasting is the Federal Communications Commission, which replaced the former Radio Commission in 1934. Broadcasting overleaps state boundaries, and therefore, constitutes interstate commerce. The Commission, in addition to regulating radio generally, allots frequencies for a maximum period of three years, and grants or denies renewals of licenses, and also revokes them. The Commission is directed to exercise its power so as to serve "public interest, convenience or necessity." One section pro- vides that Nothing in this chapter shall be understood or construed to give the com- mission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulations or condition shall be promulgated or fixed by the commission which shall interfere with the right of free speech by means of radio communications. 48 PURSUIT OF FREEDOM However, the act directs that No person within the jurisdiction of the United States shall utter any obscene, indecent or profane language by means of radio communications. On the whole the administration of the Radio Act seems to have been fair and impartial. The public accepts the necessity of keeping radio broadcasts free from profanity and obscenity, and of guard- ing against seditious or subversive utterances. Most of the actual censorship seems to have come from the broadcasting companies themselves. Supplementing the Federal Communications Act, the National Association of Broadcasters, a voluntary organization, adopted its own code on July u, 1939. The provisions of this code are summarized by Ernst and Lindey: (1) Children's programs are to be closely supervised. They are to be based upon "sound and social concepts." (2) Stations are to be provided time for the presentation of public ques- tions, including those of a controversial nature, with fairness to all elements in a given controversy. But time is not to be sold for debatable issues except for political broadcasts. (3) The potentialities of radio as a means of education are to be studied and developed. (4) News is to be presented with fairness and accuracy, and without editorial bias. (5) Radio is not to be used "to convey attacks on race or religion." (6) Only such commercial programs are to be broadcast as pertain to legitimate products or services, and comply with legal requirements, fair trade practices and standards of good taste. The topics of health and birth control are subject to severe censor- ship. Birth control, venereal diseases, and references to sex life are prohibited radio topics. During the convention of the American Birth Control League in January, 1935, at Chicago, the National Broadcasting Company refused to broadcast the proceedings of a public luncheon at which Professor Paul Douglas of the University of Chicago presided, with Professor Henry Pratt Fairchild of New York University as principal speaker. During the 1936 presidential election campaign, before the adop- tion of the N. A. B. code, the Republican National Committee en- deavored to buy commercial time over the Columbia Broadcasting System and the National Broadcasting Company networks to pro- duce the dramatic sketch, Liberty at the Crossroads. Both chains refused the requests, stating that their policy was to offer as much time as possible to responsible party spokesmen without charge. The objection to the program was that it placed the discussion of CENSORSHIP 49 vital political and national problems on the basis of dramatic license, rather than upon a basis of responsibility for stated fact or opinion. The Chicago Tribune's radio station WGN, and the Mutual Net- work System, however, accepted the series on a commercial basis under local Republican sponsorship. Another case of censorship in the logo's involved the Socialist Party leader, Norman Thomas. A number of stations, among them WMAQ of Chicago, carried a Sunday program featuring the speeches of Rev. Charles E. Coughlin, who frequently attacked the Socialist Party. The Socialist Party sought to purchase time to answer these charges over the same stations, only to be presented with a contract which stipulated that Thomas should make no reply to the statements of Father Coughlin. In 1939, during the strike of the Chicago Newspaper Guild against the local Hearst newspapers, a radio station owned by the Chicago Federation of Labor, broadcast attacks on the strikers, but refused free or purchased time to the Guild for the purpose of answering the attacks. A usual procedure of radio stations in preventing certain remarks by a contracted speaker from being heard is to cut him off the air when his speech falls "out of line." If the talk later becomes agree- able, the speaker is restored to the air waves. A case in point is that which occurred at the Democratic Party convention in Chicago in August, 1940. The Nation of August 3, 1940, stated that while an Ohio delegate was nominating a candidate for the vice presidency, he said: "The only thing wrong with Chicago is the Tribune and the Hearst papers." Immediately the booth of the Tribune-owned station, WGN, broadcasting from the convention hall, went dark as the delegate delivered himself of these convictions, and remained that way until he was safely diverted to other channels. In Illinois, radio broadcasting is subject to the provisions of the Slander Act. On the basis of an application of this law to radio broadcasts by labor organizations announcing the attitude of certain specified employers as unfair, Dr. C. H. Lietzman brought suit against radio station WCFL for slander. He claimed damage and asked for a court injunction to prevent further comments over the station regarding the attitude of his firm, the Boston Dentists, toward organized labor. The court held that it was not unlawful in this instance for a labor organization by radio broadcast to express freely its honest opinions as to the fairness or unfairness of an employer toward organized labor. In 1934, two baseball clubs entered an agreement with Chicago's 50 PURSUIT OF FREEDOM principal radio stations for broadcasting the season's games in return for free periods of advertising. The stations contracted that all com- ments on the game should be favorable and that adverse criticism of players or officials would not be allowed. In an editorial, the Christian Century, a weekly interdenominational religious journal published in Chicago, said Such an agreement, of itself, may seem unimportant. But when consid- ered in relation to the future of this vastly important method of mass com- munication, now only fourteen years old, it is significant. And the significance is not lessened by the fact that several of those stations which have thus signed away their freedom of comment over the air are owned or operated by the same newspapers which have recently been howling their heads off about the N.R.A. threat to freedom of the press. Shortly after the introduction of the motion picture as a form of public entertainment, censorship boards came into existence. In 1907 Chicago passed an ordinance prohibiting the showing of any motion picture without a permit from the commissioner of police; this is still the law. Later, a board of motion picture censors was established by the police commissioner to act for him. Members of the board are civil service employees and can be removed only by formal trial procedure before the Civil Service Commission. Four of the present board, which consists of four policewomen and one policeman, have served more than twenty years. The Chicago ordinance of 19 14, basically the same as a state statute enacted in 19 17, provides that: If a picture or series of pictures, for the showing or exhibition of which an application for a permit is made, is immoral or obscene, or portrays de- pravity, criminality, or lack of virtue of a class of citizens of any race, color, creed or religion and exposes them to contempt, derision or obloquy, or tends to produce a breach of the peace, or riots, or purports to represent any hang- ing, lynching or burning of a human being, it shall be the duty of the commissioner of police to refuse a permit. . . . The municipal code also provides for appeals to the mayor, whose decision shall be final. Whenever a permit is refused because the picture would tend to create "a harmful impression on the minds of children," if such a tendency would not exist for an adult audi- ence, the police commissioner may grant a special permit for showing to adults only. In 1909 two films, The James Boys and Night Riders } though based on American history, were banned in Chicago for alleged immorality. An appeal was taken to the Illinois Supreme Court, which upheld the power of the city to censor films under the 1907 CENSORSHIP 51 ordinance and held that the historical aspect of the pictures did not preclude their being immoral. When Sins of Sons was refused a permit by the commissioner of police because one of the scenes portrayed the introduction of an innocent boy into a house of prostitution, the case was taken to court. The trial judge who viewed the picture declared that it was not immoral. The Illinois Appellate Court of the first district, how- ever, in 191 8 declared that the lower court had no legal ground for interfering with the censorship of the movie as long as there was a "reasonable basis" for the censor's opinion. The censorship of The Spy in 191 7, because it contained scenes of torture inflicted on the hero and of his ultimate shooting by a firing squad, was contested in court. The Fox Film Corporation asked for an injunction restraining the city from refusing a permit, and the federal court granted it on the ground that the picture was neither immoral nor obscene, nor otherwise objectionable under the city ordinance. Then the city took the case to court, refusing to grant a blanket permit, but offering to give an "adults only" permit. The court ruled that the section of the city ordinance providing for such special permit applied to pictures likely to create a harmful impression on the minds of children through only those objection- able features (obscenity, criminality, etc.) specified in the ordinance. The court stated that if the glycerine tears and beads of sweat of motion picture technique were too horrifying for children, it was not for the administrator of the ordinance to say so; that it must first be so declared by the lawmakers. The order enjoining the city from banning the picture was affirmed. A dozen years later the superintendent of police refused to issue a permit for Alibi because, ... It portrays immorality, criminality, and most unlawful and shocking third degree methods on the part of the police to enforce a confession from one of the gangsters. Police methods used would tend in the opinion of the censor board to create contempt and hatred for the entire police force. The exhibitors released the film pending the issuance of a permit, and the city ordered the confiscation of all prints and films of the picture in accordance with a provision in the motion picture ordi- nance. The case was taken to the Illinois Supreme Court, which ruled that the ordinance providing for the confiscation of motion pictures put in circulation after refusal of a permit for showing was in violation of Sections 2 (no person shall be deprived of property without due process of law) and 6 (the right of the people university of ILLINOIS LIBRARY 52 PURSUIT OF FREEDOM to be secure against unreasonable seizures) of the Bill of Rights (Article II) of the Illinois constitution. In 1934 Mayor Edward J. Kelly of Chicago ordered the Crime Prevention Bureau of the city government, of which the censor board is a part, to notify film companies that mob scenes must be deleted. He maintained that, "Mob violence is not educational, and it has a decidedly bad effect upon immature minds." Following this statement, Lt. Harry Costello, commanding officer of the division, ordered the cutting of riot scenes from a newsreel of Socialist and Heimwehr battles in Vienna. This action caused much adverse criticism. Floyd Traynham of the Universal News Reel Company said, "We have always felt that in common with the press, we should be permitted to show the public any newsworthy happenings which we are able to photograph." Henry M. Herbel, president of the Chicago Film Board of Trade, said: "It is a serious matter when any one takes it upon himself to censor the news of the day." The Chicago Civil Liberties Committee wired to Mayor Kelly its objec- tion that "censorship of newsreels might logically be extended to censorship of newspapers." The Chicago Daily News on March 1 7, 1934, in an editorial said, . . . Few of the Mayor's fellow citizens have imaginations so highly developed as his. They wonder whether a Chicago movie audience, after seeing a film depicting the Parisians and Viennese hurling Irish confetti at the gendarmes, will necessarily rush out of the theater and start chasing the coppers up the alley. There are many who believe that one of the best ways to work ofT a grouch is to read a book or see a picture, that tells how somebody else did it. The vicarious satisfaction of the stage, the novel and the screen has been rated as a social safety valve by many students of crowd psychology, who prefer facts to jitters. Alderman James Moreland proposed an amendment to the city code removing newsreels from city censorship. Variety y on August 14, 1934, reported that the censorship situation in Chicago was "admittedly the worst in the country." A noteworthy case was the banning from public exhibition of the Paramount newsreel revealing the action of the police against pickets and sympathizers near the strike-bound plant of the Republic Steel Corporation in South Chicago on Memorial Day, 1937. The barrage of criticism against this ban was so great that the police commissioner orally authorized private showings of the film by the Chicago Civil Liberties Committee. Evanston also banned this newsreel. Mayor Henry D. Penfield asked through the press for expressions of opinion from Evanston CENSORSHIP 53 citizens. Petitions were circulated for the lifting of the ban, but the film was not shown. Though banned in the Chicago area and in other widely separated places, the newsreel was exhibited in many other cities of this country and Europe. When a demand for the censorship of Black Fury> depicting a miners' strike, was expressed in Chicago, a group of congressional leaders previewed the film in Washington, D. C, in the House Office Building, April 8, 1935, and declared the request ridiculous. The New York American, April 9, 1935, quoted Senator Robert Wagner as saying of the film: "It dramatically presents a phase of industrial strife we are seeking to prevent. I have never believed in censorship, least of all for a splendid picture of this type." The film was not banned. Numerous cases of censorship occurred with the introduction of anti-Nazi films. January 18, 1938, "The March of Time" produc- tion, Inside Nazi Germany , was banned by the censor board. The scenes depicted were not particularly antagonistic to Nazi Germany, but the voice and words of the commentator reflected the reaction of the American public to tyranny. In condemning the action of the censor board, the Chicago Daily Times of January 18, com- mented editorially: . . . Silly as the censor board's latest ban is, it is no sillier than the whole idea behind the censor board. No board is capable of judging what three million Chicagoans should see, write, read, or say. If censorship is needed, the people will take care of it. . . . The Chicago Civil Liberties Committee arranged a private show- ing of the film for representatives of civic organizations, who ex- pressed their approval and joined in protest of the ban. After Police Commissioner James P. Allman saw the film January 20, he over- ruled the decision of the board of censors and the newsreel was allowed general showing. November 17, 1938, Professor Mamlock y an anti-Nazi picture filmed in the Soviet Union, with Russian dialogue and English sub- titles, was banned because "it might incite Chicagoans to riot." The picture at that time was in its second week in New York and had been seen and judged by the city's conservative movie critics as a film unprovocative of harmful results. The Chicago Civil Liberties Committee initiated a protest campaign which resulted in the lifting of the ban November 18, upon deletion of a small part of the original film. At the time that the Professor Mamlock film was banned, the board of censors ordered numerous cuts in Julien Bryan's news- 54 PURSUIT OF FREEDOM reel — travelogue of Nazi Germany. With the lifting of the ban on the former, Lieutenant Harry Costello decided to restore the scenes cut from the Bryan film. Concentration Camp, something of a sequel to the Professor Mamlock picture, was banned March 14, 1939. Lieutenant Cos- tello said: "This picture is rejected because it is a vicious propaganda picture of inflammatory type which could not fail to provoke hatred, bitterness and dissension." The picture was being shown in New York with the approval of the New York State Board of Censors. March 21, after complaints to Commissioner Allman, a permit for the showing of the picture was issued. In June, 1939, The O-ppenheim Family, a Russian film based on the novel by Leon Feuchtwanger, was refused a permit by the censor board on the ground that "it exposed a class of citizens to contempt, derision or obloquy." After a private showing arranged by the Civil Liberties Committee, at which a number of group representatives reviewed the movie with approval and then appealed to Commissioner Allman, a permit was granted. The board of censors on November 6, 1939, banned the picture, Hitler, Beast of Berlin, although it was being shown with the ap- proval of local boards of censors in cities throughout the country, and had been approved by the Motion Picture Producers and Dis- tributors of America, known as the (Will H.) "Hays organization," and the National Board of Motion Picture Review. The Civil Liberties Committee arranged a private showing, to which it invited newspapermen and civic leaders. The unanimous decision of this group was that nothing in the picture warranted its censorship, although some suggested a change of title. Acting on the group's protest, the board of censors again reviewed the picture, and again rejected it, holding to its original decision that it was "propaganda against the German government," featuring "brutalities, injustices, and cruelties of the Nazi regime which we feel that, being a neutral nation, we cannot sanction." Protests of the Committee continued, and twice more the board rejected the picture, the fourth banning being accompanied, in part, by the following explanation: Despite the statement in the attached files that cuts have been made and the title changed to Goose Stef, the bad situations in the picture have not been cleaned up and if all the brutalities in the picture were removed there would be no sense to the story. The political angle of the picture was not taken into consideration by the board but the third degree methods used on the prison- CENSORSHIP 55 ers, the stripping of a priest in which his beads are torn from him and walked on, is in direct violation of the standards under which we censor pictures. Again the Committee protested, and it was even agreed that the scenes in which the priest was stripped of his clothes and his rosary stamped on might be eliminated. Still the censor board remained adamant. In the fall of 1940, after a year of effort by the Civil Liberties Committee, the ban was lifted. A ban on the Pastor Hall film in September, 1940, was quickly raised after protest by the Civil Liberties Committee and Chicago newspapers and citizens. The film portrayed events in Nazi Ger- many, centering around the experiences of Martin Niemoeller. When the picture arrived in Chicago, the official Nazi film, Blitzkrieg in Poland, had been playing undisturbed for months at a small theater in the German section. But the board of censors thought that Pastor Hall, an anti-Nazi picture, would have an un- desirable effect. On September 23, after the ban had been removed, the Chicago Daily News commented editorially: Commissioner Allman is fed up with his job of movie censor. We don't blame him. He feels the job doesn't belong to the Police Department. He's dead right. It doesn't belong to anybody. Censorship of all variety has had a mushroom growth in this country. There are state boards, local boards, federal boards, church boards, and even boards set up within industry, a la Hollywood. Whence this perversion of democratic processes? We've never heard of a single such board that did not, in some degree, violate either the letter or spirit of our constitutional guarantees of free speech, free press, and free assemblage. . . . There is only one power in this mighty land that is big enough, and square enough, to prescribe for the people. And that is the people themselves. Mem Kampfy an English anti-Nazi film, was passed by the United States Bureau of Customs, the New York State Board of Censors and the Will Hays organization ; but it was banned by the Chicago cen- sors in October, 1940. After ten days of protest by the Civil Liber- ties Committee, the censors revoked their ruling and issued a permit. The Birth of a Nation was banned in Chicago in September, 1939, after its scheduled revival-run had been almost completed. The board of censors had granted a permit for the showing of the picture, but Mayor Kelly, in response to the demands of Negro leaders, ordered the film withdrawn. The Civil Liberties Committee protested this ban insofar as it applied to adults. 56 PURSUIT OF FREEDOM An injunction had been issued at the time of the first showing of the picture about 19 17, restraining city officials from banning the picture, but limiting its showing to one theater at a time. De- spite protests by the Chicago branch of the National Association for the Advancement of Colored People against exhibition of the picture, Judge Donald S. McKinlay of the Superior Court, ruled May 17, 1940, that the injunction was to remain in effect, stating, in part: Assuming the picture tends in some degree to cause unthinking persons to dislike the Negro, we must also have regard for the constitutional prin- ciples of free speech, press, and dissemination of views. Most motion pictures banned in recent years have been censored because of their political character, their exhibition of cruelty or rioting, or their treatment of labor themes. Other films, however, have been banned on "moral" grounds. The two biological and educational films, The Birth of a Baby and The Fight for Life, were among these. The former was produced and sponsored by the American Committee on Maternal Welfare; the latter by the United States Film Service, a government agency. Both pictures received nationwide approval by medical, hospital, and nursing associations. Before the release of The Birth of a Baby earlv in 1938, the committee sponsoring the film imposed restrictions on its exhibi- tion: it was not to be shown in any region without previous preview and approval by local doctors; it was not to be double-billed with another feature ; its advertising was to be dignified. The New York State Board of Censors was the first to ban the picture, as immoral and indecent. Commenting on this editorially, the Chicago Daily Times of March 21, 1938, said: . . . But this is the way with censorship. Instead of evaluating filth and good taste, truth and falsity, it bumbles along with a set of antiquated rules which do not prevent "immorality" so much as they prohibit instruction which might, if anything, keep immorality down to a greater extent. Thus Hollywood films stressing the beauty of naked chorus girls and the advantages of penthouse parties are considered okay, where a film intended to bring a little cold light on an old subject is taboo . . . What gives a censor his right to regulate except ordinances put over by legislators who wouldn't know an educational film or an accurate report if they met one on the State House steps? When the picture arrived in Chicago, it was immediately banned. Also Evanston's chief movie censor, Policewoman Vera Everett, prohibited its showing, over the protests of a preview audience com- prised of civic leaders. The ban has remained in force in both Chicago and Evanston, with the exception of private showings for CENSORSHIP 57 educational purposes; but the picture has been "privately" exhibited widely throughout the state. The Fight for Life, dealing with the nationally- famous Chicago Maternity Center on Maxwell Street, was banned in Chicago, May 22, 1940. As in the case of The Birth of a Baby, the board of censors based its action on the 1907 ordinance banning pictures of "pregnancy, labor pains and childbirth as unfit for exhibition in public theaters, for entertainment." The Civil Liberties Committee arranged a private showing of The Fight for Life. The entire audience, comprised of civic leaders, signed a telegram that was sent to Mayor Kelly urging him to lift the ban. No action was taken. In a comprehensive study of the Chicago censorship problem, the Civil Liberties Committee found that the local board of censors, between January 1, 1937 and August 21, 1939, had made more than 1,000 cuts in motion pictures, rejected 43 films completely, and allowed 68 to be shown to adults only. Upon the basis of this study, which included a comparison with the situations in other cities, the committee petitioned the city council to abolish the exist- ing censorship ordinance and draft a new one embodying the fol- lowing recommendations: (1) that the review of motion pictures shall be for the sole purpose of determining whether they may be seen by children; (2) that newsreels and educational films be expressly excluded from such review; (3) that a separate board, independent of the police department, be established to review motion pictures for the limited purpose defined above; (4) that the reviewing board shall consist of five persons whose terms of office shall be limited, and who shall be selected for their special qualifi- cations, based on training or experience in psychology, education, or such other fields as may enable them fairly and competently to perform their duties; (5) that the board shall be required to make public at least each calendar year a complete report of all its actions on motion pictures submitted; and (6) that provision be made for the adequate review of an appeal from the decisions of the board, and for the right to a review of any case before a court of law. Alderman Earl B. Dickerson, a member of the executive board of the Civil Liberties Committee, embodied these recommendations in an amendment to the censorship ordinance. In December, 1940, the first public hearing on the proposed amendment was held in the City Council chamber. Despite substantial public support, the new ordinance failed of passage. 58 PURSUIT OF FREEDOM All countries except the United States have national boards of censors. Only eight states in this country have boards of censor- ship, but there are about 260 municipal boards, all with different regulations. In addition to the legal censors, and working in con- juction with them, is the extra-legal censorship agency formed by the Catholic Church in the United States, known as The Legion of Decency. It was organized in 1934 to bring moral pressure on the motion picture industry to "purge" itself of the evils of sex and gangster films. The New York Times reported September 28, 1934, that 50,000 children marched down Michigan Avenue in Chicago in the first demonstration of the Legion of Decency. They carried placards and banners. One read: "Films we must see, but clean they must be." In 1922, the Motion Picture Producers and Distributors of America, Inc., was organized under the presidency of Will H. Hays. To meet the charges that the screen needed to be purified, the Pro- duction Code was promulgated in 1930 by the Hays organization. The widespread demand for federal regulation of motion pictures continued, and in order to respond to this situation with more than a mere gesture, the Hays organization revised the code into a kind of elaborated decalogue of moral and artistic standards for the industry. Prior to the adoption of the code, the industry practiced self-regulation to effect a cleansing from within. But to meet the offensive carried on by the Legion of Decency against lust and crime in pictures, the producers' and distributors' organization in 1934 employed Joseph I. Breen, a Catholic, as movie censor. Breen operated under the Production Code, and was considered the head of the code administration. The principles, rules, and regulations of the code call for uphold- ing law and order, and oppose ridiculing the institution of marriage. Adultery must not be explicitly treated or justified or attractively presented. Typical of the code administration's recommendations to producers are those made for the picture, Dead End: people should not step on cockroaches, the boy "Spit" should not actually spit, there should be less emphasis on the contrasts between living conditions of the poor and the rich, and the word "louse" should be omitted. The Legion of Decency has been successful in having scenes from movies and entire movies censored. Pictures without the stamp of approval of Breen's office usually were shown only by exihibitors willing to accept the financial risk involved. Producers are not always willing to release unapproved films. CENSORSHIP 59 Among the pictures that the Legion of Decency has put on its objectionable list are: Dodsworth y Rembrandt, Anna Karenina, Bluebeard's Eighth Wife, The Private Life of Henry VIII, Carnival in Flanders, Men in White, The Golem, Mayerling, A Star Is Born, and Birth of a Baby (for public showing). Some of these pictures were objected to because they did not adhere to the Catholic teachings respecting divorce. One, A Star Is Born, was objectionable because it included a suicide. The French film, The Lower Depths, taken from Maxim Gorky's pi ay, was dis- approved because "of the undue sordidness in setting and develop- ment." An outstanding case in Chicago's history of stage censorship is that of Tobacco Road. The play opened September 2, 1935, and ran about seven weeks before Mayor Edward J. Kelly attended a performance and decided that it was indecent. City ordinance and state law make illegal the showing of any "obscene, indecent, im- moral or lewd play." The city ordinance empowers the mayor to revoke the license of a theater which fails to remove the features found objectionable by a police officer. Basing his action on this ordinance, Mayor Kelly revoked the license of the theater where Tobacco Road was showing until the play was removed. Lt. Harry Costello, of the Crime Prevention Bureau, reinforced the mayor's objections by stating, "The most objectionable features were not in the author's script and were not in the play on the opening night. They were introduced, bit by bit, as the play progressed." The Tobacco Road case was tried in United States District Court, because the players were not residents of the state. The court granted an injunction, restraining city officials from interfering with the play. The trial judge held that the play was neither base nor lewd. However, the United States Court of Appeals to which the city appealed, held that under the ordinances governing the licensing of theaters and all other commercial enterprises, the mayor, as chief executive, had the power to revoke a license for any reason he felt sufficient, and that the efficiency of the mayor's reasoning was not subject to review by any court. The play, which closed its seventh year in New York, only to reopen soon afterwards, has not since been shown in Chicago. The Tobacco Road case elicited widespread comment. Its ban- ning by the city of Chicago became the subject of controversy and serious critical discussion. The Chicago Tribune, in an editorial November 25, 1935, said: 60 PURSUIT OF FREEDOM If we were to look for strict logic and consistency in our law, this para- dox would puzzle us. America yields great authority to custom and our custom has accepted a control of the theater by the state, from which speech, the press and the book have been largely free. The Illinois Vigilance Association February 23, 193 1, attempted to have the cast of The Front Page arrested because of profanity in their lines. Judge Francis Borelli of the Chicago Municipal Court rejected the petition for warrants, holding that "robust vul- garities of speech" from a criminal press room, even when repro- duced on the stage, do not constitute a menace to the public morals. Periodically the police raid burlesque houses. Variety y May 20, 193 1, in reference to the closing of several burlesque houses in Chicago, commented: After a brief shutdown because of political exigencies . . . one of the three last local refuges of burlesque, reopened with the usual two-hour parade of unglorified nothing-at-all and display of erocalesthenics. . . . No likelihood of a frown from the city administration since there is nothing reflecting darkly on the city's reputation in any of the show's blackouts. Variety was referring to Mayor Anton J. Cermak's declaration, on the day after his inauguration in April, that he would ban plays and pictures injuring Chicago's reputation by depicting the city's gang life. Early in 1936, The Theatre Guild was forbidden to bring The Children's Hour, by Lillian Hellman, to Chicago. However, the movie version, These Three, was allowed to be shown. On only one occasion, when it was produced by a non-professional group, has The Children's Hour been staged in Chicago. Meyer Levin's Model Tenements, a Federal Theater production, was abandoned in the spring of 1936 after a few weeks of re- hearsal; the reason given was that the play did not meet with the approval of the Chicago Crime Prevention Bureau. In the fall of 1936, as hundreds of people waited outside the doors on opening night, Paul Green's Hymn to the Rising Sun, another Federal Theater production, was banned. Unusual censorship was attempted when James C. Petrillo, presi- dent of the American Federation of Musicians and head of the Chi- cago local of that organization, ordered the omission of John L. Lewis' name from the play, The Man Who Came to Dinner, when it opened in Chicago during the 1939-40 season. Petrillo threatened a labor strike if his order was not obeyed. Nothing happened when the order was ignored. CENSORSHIP 61 A form of censorship in Illinois reminiscent of the "blue laws" of the colonial period was that established in the theocratically governed community of Zion, founded about 1900 by the religious leader and faith-healer, John Alexander Dowie, the "First Apostle" of the Christian Catholic Apostolic Church. The church established Zion, a municipality (incorporated, March 31, 1902) owned by the Zion Land and Investment Association, where members could "enjoy to the full the blessings of the Constitution of the United States and worship God according to the dictates of their conscience." Most of the regulatory sections of the municipal code were of a sumptuary nature; but there also were censorial functions of the theocratic government. In addition to supervision of speech and press, the Zion hierarchy added to its censorship of individuals their diet, amusements, hygiene, and love making. The use and sale of liquor, tobacco, playing cards, oysters, pork, and clams were prohibited by an early city code. Through a special ruling obtained from the Illinois Commerce Commission, no trains stop in Zion on Sundays. Drug stores, saloons, pool halls, bowling alleys, and theaters to which admission was charged, were forbidden. Doctors were banned. Courtship in public parks was taboo. Bathing beaches were divided into three parts: one for single girls, one for single men, and between them a section for married couples. Profanity was prohibited — at least, in public — by municipal ordi- nance. An early "no smoking" ordinance, which did not specify the conditions under which smoking was to be prohibited in the public streets and parks, was declared invalid by the Illinois Supreme Court, which termed it "an unreasonable restraint upon personal liberty" of the citizens of Zion. The prohibition then was made to restrict smoking, or even holding a lighted cigar, cigarette or pipe, if doing so tended to "cause a disturbance of the peace or physical annoyance" to anyone within five feet of the smoker. Any business for gain on Sunday, including the sale and delivery of newspapers or merchandise, was illegal; and it was unlawful "to disturb the peace and good order of society by labor" on Sunday. Athletic exhibitions were illegal, if an admission fee were charged. Baseball and other games were not allowed in the streets on Sunday. "Nothing disloyal to the word of God" was permitted to be taught in the public schools of Zion. This led to the teaching that the world is flat, and of other poetic inferences from scriptural des- cription of natural phenomena for which science provides a totally different explanation and nomenclature. 62 PURSUIT OF FREEDOM While communities such as Zion are now unusual in Illinois, in the earliest years of statehood "blue laws" of various kinds were not uncommon. Personal activities were restricted or censored in a manner now deemed inadvisable or unnecessary. New Englanders who came to the Illinois frontier felt the need for restrictive legisla- tion to curb their "disorderly" neighbors whose conduct and man- ners often interfered with the observance of the Sabbath Sunday in the customary New England way. The early state legislators enacted a series of "blue laws" rivaling those of Puritan New Eng- land. Fines of from three to fifty dollars were imposed for profane swearing or misbehavior before the assembly of a church congrega- tion. Swearing in ordinary company was less expensive. The early laws prohibited fighting, shooting, hunting, and working on Sunday. Tavern keepers who opened their places of business on the Sabbath were subject to severe penalties. The General Assembly of 1825 enacted a law against buying a deck of playing cards or importing such cards into the state. The General Assembly of 1827 made gambling losses recoverable by court action at treble their value. In some communities, state laws were strengthened by municipal legislation. Peoria, for instance, in 1837, prohibited card playing or other games of chance. Local option laws making the sale of liquor illegal have been passed and repealed repeatedly by numerous towns from the early years down to the present. Most state-enacted Sunday laws were abrogated after the Civil War, but individual communities continued to enact them. In the 1870^, for example, Bardolph in McDonough County, prohibited the game of croquet on any day, while Quincy prohibited Sunday baseball and restricted swimming in the Mississippi to night time. In 18 70, Chicago had an ordinance prohibiting baseball playing on Sunday. In an article dealing with the arrest of twenty-three persons who violated this law, the Chicago Tribune on August 22, 18 70, reported: "This should be a warning to young men fond of tossing the ball on the Sabbath near the residences of people who observe the day." An attempt was made at the state Constitutional Convention of 1870 to insert into the new constitution a clause prohibiting the legislature from passing sumptuary laws abridging or interfering with the personal liberty of "any class" of the citizenry. It failed of passage. Still on the statute books of the state, although not enforced, are two sections of the Sunday laws passed in 1874. One prohibits dis- turbing "the peace and good order of society by labor (works of necessity and charity excepted) or by any amusement or diversion CENSORSHIP 63 on Sunday," upon penalty of fine. The other provides for the punishment by fine of anyone "guilty of any noise, rout, or amuse- ment . . . whereby the peace of any private family may be dis- turbed" on Sunday. The labor section carries an exemption for persons who keep another day than Sunday as a Sabbath. In 1882, the mayor of Belleville endeavored to put a stop to Sunday parades. Among the opponents of his action was the editor of a German newspaper, who advised the societies of the city to set up a test case. The Workingmen's Society acted upon the sugges- tion and held a parade with a German band at the head. A large crowd assembled "to see the fun." As soon as the procession started and the band began to play, police officers interfered. Failing to stop the music, they attempted to arrest the players, Leaders of the society protested. Then the mayor appeared ; the excited crowd surged around and began abusing him for his interference. He was "shoved around pretty lively" and was hit on the back of the neck. When order was restored, the parade formed again and began its march. The band struck up once more. Efforts of the police to stop it were futile until they took one of the men from the ranks. The "leading spirit" of the society put up bond for the entire band, and the parade once more moved on, with music. "The officers tried their best to stop the music, but it was no go, and seeing that they were not equal to the test, they gave it up and the paraders went on their way." After the mayor had had his injuries attended to, he wired the governor for help. The latter replied that if the sheriff could not preserve peace, the militia would be called out. Although excite- ment ran high in the town, and numerous minor rows took place, there were no serious results. The ups and downs of women's skirts after the First World War and the saga of the shrinking bathing suit have been treated at length by our jokesters; they deserve mention here only as a re- minder that not very long ago people would have been arrested for indecent exposure if they appeared in public wearing the dress that is common today. Even in 1933, when the wearing of shorts became popular, the Chicago Park District ruled that all girls and women must wear a blouse and skirt while playing tennis. This was contested, but the Illinois Appellate Court, First District, upheld the park district ruling, declaring that the ordinance was not so unreasonable as to exceed the authority of the district. Neverthe- less, shorts now are generally worn on tennis courts. In censoring 64 PURSUIT OF FREEDOM dress, just as in other phases of censorship, the controlling factors are time, place, and personal opinion. The National Council for Freedom from Censorship, organized by the American Civil Liberties Union, is the only centralized body in the United States combatting all phases of censorship. Its pro- gram includes: amendment of the Radio Act to restrict censorship at stations, and to limit government discrimination in station licens- ing; defense of speakers against radio station discrimination, repeal of laws empowering local officials to revoke theater licenses at will; repeal of municipal ordinances authorizing advance motion picture censorship by local boards; court tests of motion picture censor- ship; judicial determination of the constitutionality of ordinances and statutes granting arbitrary powers to license commissioners; judicial determination of all arbitrary administrative censorship; defense of serious books, plays, and pictures labelled as obscene. There is nothing which can take the place of liberty even when it goes wrong. If censorship had been applied throughout history we should have hardly a great book or a work of great art today. — Clarence Darrow. CHAPTER V ACADEMIC FREEDOM Because democracy is a dynamic concept, it keeps growing. Year by year the unwritten Bill of Rights expands as the people gain more control over their lives. The authors of the written Bill of Rights made no mention in 1791 of academic freedom, yet the freedom of teachers to teach what they believe to be true has become an aspiration, if not a universal practice, in the country's schools. This fundamental liberty includes freedom of research, freedom to express conclusions, and freedom to transmit to others what the teacher himself has learned. To establish these freedoms, hundreds of teachers have sacrificed their jobs, their academic future, their very livelihood. Yet it is only in this manner — as in the days of Lexington and Bunker Hill — that men establish their right to be free. To many it has been a lonely fight. College presidents, far more harassed by the need of heavier endowments from the holders of 65 66 PURSUIT OF FREEDOM the money-bags than by the need of nurturing democracy within their institutions, have often been quick to get rid of the disturber of the academic peace. Hard-eyed boards of trustees more often order the "radical" teacher barred from the campus than upheld in his right to speak his mind. In the fight for freedom on the quadrangle, teachers have won their hardest battles through organization. The American Federa- tion of Teachers, the American Association of University Professors, and similar bodies have achieved higher standards of academic free- dom through fierce contests with autocratic boards and presidents, but autocracy on the campus dies hard. The borderline in academic freedom is broad and bewildering. Unpopular opinions are not less distasteful because expressed in academic terms. A teacher may confuse his freedom to teach the truth as he sees it with freedom to present but one side of a controversy. He may disregard the "Stop" signs that caution him to keep his mouth shut on touchy racial, religious and political issues. Racial equality is taboo in the South; to espouse communism in a Northern class- room, equally forbidden. The Committee on Academic Freedom of the American Civil Liberties Union has endeavored to set metes and bounds : No interference with freedom of teaching in adult or higher education except on judgments of juries of educators; nor in lower schools except on judgments of composite juries of administrators, community and teachers. No limitation on classroom discussion relevant to the subjects taught. Outside of schools, the same freedom of teachers as of other citizens, with encouragement of participation in public affairs. No interference with the right of teachers to organize for their own pro- tection and freedom of teaching, and to affiliate with labor. No unreasonable interference by legislatures with the school curriculum, the control of which should be vested in educational authorities and in the teaching profession. No compulsory religious practices in the schools, such as Bible-reading. Protection of the rights of students to organize for discussion of public issues, without faculty control. No disciplinary action against students because of religious, political or other views or activities. Opposition to all special oaths of loyalty for teachers as unfair discrimina- tion and as harmful to free and open critical inquiry. Strong tenure laws in all states to protect teachers against unjust dismissals. As in so many other phases of the fight for civil liberty, the aboli- tionists provided early tests in Illinois for academic freedom. Illinois College, before the Civil War, adopted a gag-rule against an anti- slavery society to prevent discussion of a controversial issue. Another ACADEMIC FREEDOM 67 early case was the refusal in 1864 of the Chicago Board of Edu- cation to rehire James E. Dewey, because he was in sympathy "with those turbulent spirits who have endeavored to make trouble in the schools." Dewey had protested against the muzzling of teachers and the espionage system employed by the superintendent. The First World War numbered heavy casualties among teachers who sought freedom of expression. Incidents which would have gone unnoticed at any other time were enlarged and given serious interpretations. A highly qualified teacher of German in a suburban high school near Chicago was dismissed on charges which at any other time would have been considered ridiculous. In this case the school authorities made public a statement exonerating the teacher, but to no avail; the opposition was hysterical and the teacher had to be sacrificed. Typical of the temper of the times is the following excerpt from the Belleville Daily Advocate of January 24, 1918: Alleged disloyal utterances of a teacher in the East St. Louis High School will probably be reported to the Board of Education for action at its next meeting. . . . This teacher is said to have declared that she admired Senator LaFollette of Wisconsin, and that she approved of his utterances since the declaration of war on Germany. In at least two instances in Chicago during the period of the First World War, attempts to dismiss teachers for "patriotic" reasons were unsuccessful. Miss Lillian Herstein, an English in- structor at Crane Junior College, was accused of disloyalty. She was closely connected with the organized labor movement, and was also at the time a socialist in political conviction. She demanded a trial and was exonerated. Miss Flora J. Cooke, principal of Francis W. Parker School, a private institution, defended both a teacher accused of being pro-German, and a student who wrote a pacifist essay. Some of the parents denounced both the teacher and the student. Their petitions for the dismissal of both, after faculty discussion, were refused by Miss Cooke, "since such dismissal would have violated the fundamental rights of free speech and expression." In the spring of 19 17, the head of the philosophy department of the University of Illinois, Professor Arthur Daniels, recommended Carl Haessler for an instructorship with an increase in salary. After the United States entered the war, Haessler wrote on his draft card: "I will not serve if drafted as I cannot patriotically approve of this war." Prof. Daniels then wrote to Haessler that since he had raised a question of conscience concerning the war, one had been raised for him (Daniels), too, and he could not conscientiously recommend the promotion he previously had promised. 68 PURSUIT OF FREEDOM When Haessler applied for membership in the Western Philo- sophical Association, he was rejected. After he had been court- martialed for refusal to serve in the army, and sentenced to twelve years in Fort Leavenworth, the sociological department of the prison sent inquiry to his former employers asking if they would re-employ the prisoner upon his release. Prof. Daniels replied: "No, and I hope no other university will." Haessler turned to journalism after he left Leavenworth. A Chicago public school teacher, Frances L. Lloyd, was dismissed during the "Red" scares following the war, for "insubordination and unpatriotic conduct." She had failed to face east with her students in celebration of Armistice Day. Dr. James M. Yard, director of religious activities at North- western University, was informed in January, 1933, that his services would not be required further. This action was taken without con- sultation with the Committee of Trustees, in charge of religious matters. Later a meeting to review the case was called by the president of the university at the suggestion of the Pev. Ernest F. Tittle, pastor of the First Methodist Church of Evanston and a trustee of the university. Members of the Committee of Trustees, faculty, and student body were invited to attend. At this conference the faculty and student representatives objected to the action taken by the university. Later Dr. Tittle made a favorable report of Dr. Yard's work. It then was made known by some trustees and others who knew of the reason for the action, that influential people ob- jected to Dr. Yard's interest in labor problems, "in the develop- ment of a better social order, and in better race relations." Dr. Yard had entertained Negro students in his home, not as a separate group but as members of the student body. He explained that they had as much right in his home as in the classrooms of the university. Objection had been raised to Dr. Yard's invitation to the Socialist Party leader, Norman Thomas, to speak on the campus. However, the reason given by the president of the univer- sity for the termination of Dr. Yard's services was that he had been invited to the university to carry on an experiment and that it was felt that the experiment had not been successful. No statement was made to support the charge of failure. Two years later the uni- versity invited another man to do practically the same work that Dr. Yard had been asked to do. Since then, speakers such as Nor- man Thomas to whom objection had been made, frequently have been invited to lecture at the university. Many of the economic and social objectives which Dr. Yard supported have been realized and ACADEMIC FREEDOM 69 have become a part of the American system. The Board of Education of Evanston refused, in 1934, to retain Brent Allison, a substitute high school teacher, when it was dis- covered he had been imprisoned at Fort Leavenworth as a con- scientious objector during the First World War. As a substitute teacher Allison had no tenure rights, but the Board did not want a controversy to develop over the dismissal. They offered him one hundred dollars as payment in full for any claim he might have against the Board. Though Allison accepted the money, he later sought a hearing, which the school authorities denied him. Principal Francis L. Bacon had hired Allison, thinking he had "rare potentiality" as a teacher possessing an "excellent personality." Despite these qualifications, "the fact that he was known in the community as a participant in various progressive movements dis- tasteful to conservative suburbanites along Chicago's North Shore was further reason" for his dismissal. Expressing the attitude of many school administrators, Principal Bacon explained the Board's action: No board of education will deliberately walk into a lot of trouble, espe- cially with the possibility that the issue may become so heated that it will involve either the dismissal of a teacher or an election fight with changes in the board personnel as a result. After all is said and done it can hardly be expected that a board of education can think itself justified in the role of crusading for those who become martyrs in public controversies. A case that is typical of the experience of many teachers in small towns is that of Hugh A. Bone, Jr. In 1934, after three years of teaching at Belvidere High School, Bone was denied further em- ployment. No charges were preferred against him, and no formal hearing was held. This method of dismissal was usual in most Illinois communities until the tenure law was widened to include the entire state, and in those states where teachers have not been able to obtain the passage of tenure laws. Bone's method of teaching civics by sending advanced students into the community to study problems of citizenship was the subject of complaint. Reading matter which he had presented to his classes was characterized by a member of the school board as "communistic literature." Bone's answer to this charge was that the most radical things he had read were the Christian Century > the American Observer \ the Manchester Guardian, and the New Republic. Ac- cording to the Beale investigation, "the board member is reported to have replied: 'Well, the New Republic is a communistic paper.' " In order clearly to understand the reason for Bone's dismissal 70 PURSUIT OF FREEDOM it would be necessary to be acquainted with the social, economic, and political atmosphere in which he taught. One of Belvidere's lead- ing citizens viewed Bone's difficulties in the following light: This community is very conservative from the industrial angle of our business life. Labor is not organized and although we have a large factory population, the National Sewing Machine Co. is traditionally very reactionary against organized labor. . . . Therefore anything in the way of discussion or theory that would go very deep into the industrial or social situation would be anathema to some of our people. In the fall of 1938, a trustee of DeKalb Normal School requested replacement of that schooPs janitors with janitors possessing political sponsorship. When the schooPs president, Karl Adams, declined to dismiss men for lack of such sponsorship, the trustee attempted to remove Adams from the presidency. The superintendent of Winnetka schools, Carleton Washburne, with other educators throughout the state, prevented this. In December of the same year, the Proviso Township (Cook County) School Board attempted to cancel the contracts of eight members of Local 571 of the American Federation of Teachers, Proviso's first teachers' union. The union, assisted by the com- munity, averted the cancellations; but in the following year no con- tracts were offered to the union's chairman and vice-chairman, Ralph Marshall and Mary Wheeler. No charges were made against either teacher, however, and the union's membership of ninety teachers voted to pay their salaries until they were reinstated. The national union, the suburban local, and the Chicago Teachers Union exerted pressure upon the Proviso school board until the two teachers were re-employed, the former, January 29, 1940, the latter, September 3, 1940. The board further agreed that no member of the faculty again should be discriminated against for membership in the Ameri- can Federation of Teachers. In 1934 and 1935, groups of students all over the country went on strike demonstrations against war. Although most schools tol- erated these exhibitions, there were many instances of interference and some arrests. One case was that of four students of Tuley High School, in Chicago, arrested April 12, 1935, for distributing anti-war leaflets. Their teachers threatened to fail them, and forty others who walked out of classes were suspended but later were reinstated. Undergraduate editors of school papers are sometimes disciplined for discussing controversial problems and issues. The American Civil Liberties Union reports that two students were ousted from the University of Illinois for writing an article derogatory to the ACADEMIC FREEDOM 71 zinc smelting industry. In February, 1938, the student editor of the Crane Technical Chronicle at Crane Technical High School in Chicago caused information to be published concerning the reorgani- zation of student vigilante groups, called "flying squads." The groups had been disbanded by the superintendent of schools in 1935 after a student had been beaten up by one of them. Faculty Advisor Henry F. Gilson removed the editor, Jack Star, and most of the student staff from their positions on the paper. The deposed editor was threatened with dismissal from the school when, in his effort to remain on the paper, he appealed his case to the student body. Upon the protest of the Chicago Civil Liberties Committee to Superintend- ent of Schools William H. Johnson, the "flying squads" again were disbanded, and Star was permitted to be graduated, but not to edit the paper. It is assumed that indoctrination of pupils is not permitted in American schools, in contrast with the custom in totalitarian coun- tries. Nevertheless, the emphasis on the "American way of life" taught in many schools is hardly distinguished from indoctrination. "The American way of life" is often stressed, not as a dynamic concept of unfolding democracy, but rather as support of the status quo or even a return to some earlier "way of life" more acceptable to those in control of teaching. Flag-salutes, recitation of pledges of loyalty, certain compulsory teachings, and in many cases teachers' loyalty oaths represent this effort to mold the young mind in the proper cast. In wartime such indoctrination becomes sharper. "Americanism" takes top place in the school curriculum, and frequently a blind acceptance of frozen concepts is substituted for instruction in the democratic way of life. When adherence to democracy is taught in schools controlled by autocratic boards, presidents, and principals, it is usually found that democracy has become a sterile precept. Typical of such an attitude was the widespread dropping of the teaching of German in the First World War. It remained for Flora J. Cooke, exponent of democratic education, to hold out against the current hysteria. When a group of parents insisted on meeting to discuss the school's "sins of commission and omission," but principally the continued teaching of German, Miss Cooke refused to retreat. Later she described the meeting as "a dramatic and miserable experience." In a series of cases, the U. S. Supreme Court has held unconstitutional laws prohibiting the teaching of German. Tax-supported schools teaching "seditious doctrines" would have 72 PURSUIT OF FREEDOM been denied a share in the public revenues, according to bills pending in the 1933 legislature. May 24, 1933, President Robert M. Hutchins of the University of Chicago and President Walter Dill Scott of Northwestern denounced the bills before a house sub-com- mittee on revenue. The Rev. J. W. Maguire, president of St. Viator's College, observed that the bills would prevent the reading of the Declaration of Independence, Plato's Re-public, and More's Utopia, because these taught the right of men to change their government. "This is the kind of bill Mr. Insull would have liked," President Hutchins declared. "Universities haven't so much to fear from communistic organizations as they have from corrupt capitalism." The Christian Century held that it would be more ludicrous than dangerous "to authorize an assessor to pass upon a question of sedi- tion, without defining sedition, and to make the very existence of every educational institution in the state depend upon the assessor's approval of everything taught in it . . ." The bills were defeated in the lower chamber. May 14, 1934, Alderman James Moreland presented a resolu- tion to the Chicago City Council commending the proposal of the Board of Education to require public school teachers to take oaths of loyalty to the United States. This was referred to the Committee on Judiciary and State Legislation. The loyalty oath bill was introduced in the General Assembly of Illinois in February, 1935; it passed the House of Representatives and was defeated in the Senate, June 29. While educators opposed the bill, the American Legion supported it. The American Association of University Professors commented: . . . Swearing oaths is a poor method of achieving conformity or loyalty. The recital of creeds has little effect on conviction. . . . One does not love one's country or one's wife better for swearing to love. . . . Educators quite generally held that oath-taking as a device for detecting disloyalty among teachers was futile, since no really dis- loyal teacher would refuse to take the oath. Superintendent of Schools William McAndrew of Chicago, replying to the Daughters of the American Revolution, who supported the bills, wrote in the Educational Review: Every office-holding crook, every seller of his country's oil lands, every corrupt judge, every lying witness swears an oath of allegiance. All the youthful criminals pledge allegiance daily at school. The Chicago Teachers' Federation, under the leadership of Mar- garet A. Haley, was a militant social and educational force in the ACADEMIC FREEDOM 73 early 1900's. It fought to obtain school funds withheld by public- service corporations and State Street landowners, and it was ever watchful that no school lands be sold at disadvantageous prices. Through suits which the union caused to be instituted against tax dodgers, the city collected more than $7,000,000 by 19 15. The Federation was under constant attack from business interests and the school board itself. The attack on the Federation, it was charged, was provoked by its refusal to support the Cooley Voca- tional Bill (to give school children mechanical training), backed by the Commercial Club and the Association of Commerce, and by its protest against a proposed cut in teachers' salaries to reduce the deficit in the school budget. It also was suggested that the attack was related to Miss Haley's refusal to back a tax amendment to the state constitution favored by the Chicago Real Estate Board "in return for" legislation that would increase the school budget. Miss Haley charged Secretary Lewis Larson of the Board of Educa- tion with making proposals in this regard, and placed the evidence in the hands of State's Attorney Maclay Hoyne. It was charged by the Teachers' Federation, both the Chicago and Illinois Federations of Labor, and others, including some state sen- ators, that a state senate committee appointed in June, 19 15, to investigate Chicago school conditions never had been authorized by the senate, but that Senator Samuel Ettelson had the authorizing resolution "corrected" into the Senate Journal. Ostensibly the inves- tigation was to examine the deficit in the school funds; actually it was to prevent a bona fide investigation of the Board of Education by a committee representing the Chicago City Council. Said William R. Chenery in the New Republic of October 23, 191 5: "The (senate) investigation consisted of permitting Jacob M. Loeb (chair- man of the rules committee of the board of education) to denounce the members of the federation as 'lady labor-sluggers.'" Chenery charged that an unknown private individual had offered to pay the expense of the members of the senate investigating committee. The Loeb rule was amended by the Board of Education Septem- ber 29 to read: Membership in some teachers' organizations which have officers, business agents or other representatives who are not members of the teaching force, is inimical to proper discipline, prejudicial to the efficiency of the teaching force and detrimental to the welfare of the public school system, therefore membership in such of said last mentioned organizations as this Board here- after shall determine are inimical, prejudicial or detrimental as aforesaid is hereby prohibited. 74 PURSUIT OF FREEDOM This rule was enforced only against the Chicago Teachers' Fed- eration, and sixty-eight members of the Federation were dropped in June, 1916, for violating it. In 191 7, the Illinois Supreme Court sustained the Board of Education in its enforcement of the Loeb rule. That same year the Teachers' Federation obtained enactment by the General Assembly of the Otis Tenure Law. Its provisions prohibit the Chicago Board of Education from dismissing teachers except for cause, on written charges, by trial after thirty days' notice. Since the nullification of the Loeb rule there has been no ban on or direct interference with union organization by the school board, but in 1938 the Board of Education denied teachers the right to hold meetings in school buildings. Prof. George Axtelle of Northwestern University, then president of the American Federation of Teachers, branded this gesture a "petty reprisal by a floundering administra- tion," saying, "School buildings are the possession of all the people. They are not the property of a school administration which tempo- rarily has control of the school system . . ." Among the influences that are held to be a constant threat to freedom in teaching, according to Dr. Howard K. Beale, is that of business. Of this he wrote as follows: Perhaps the most dangerous, because the most general and the most subtle, control over teachers is that exercised by business. . . . Business men, as we shall see, dominate most boards of school trustees whether private or public. Their influence gives them power, too, over superintendents. This power comes partly from the fact that their gifts finance private schools and their taxes pay for public ones. It arises in part from the respect that schoolmen, in a society in which values are adjudged by practical and material standards, feel for the man of affairs who has been successful in accumulating wealth. Teachers as well as clerks in business offices looked upon Samuel Insull as Chicago's greatest citizen. This power of business is used to see that schools "teach" ideas that will give the next generation the same uncritical awe of financial success, however unscrupulous, that this generation has had. The Citizens Committee on Public Expenditures, organized in Chicago in 1932, was charged in an article by Leonard V. Koos in the School Review, with attempting to exert control over the schools. Of this Koos said in part as follows: It is not a representative body because ... it is composed exclusively of representatives of large business interests and large tax payers of Chicago . . . This extra-legal Fascism is contrary to the best American principles, and it must be checked and stamped out. . . . Schools may need, in some quarters, to retrench, but the public should not permit them to be coerced to the point of paralysis by extra-legal organizations interested solely in tax reduction and blind to the meaning of popular education in the American program. ACADEMIC FREEDOM 75 In combatting "unsound and dangerous economic doctrines," chambers of commerce are accused of utilizing the schools to indoc- trinate children with what they regard as correct and profitable ideas. In support of this allegation Prof. George S. Counts of Columbia University asserted that the Chicago Association of Commerce sought to influence the schools through "the subtle forces of personal influence and social prestige." He said further: ... It has commonly been accorded a generous representation on the board of education, and its relationships with the board have been intimate and cordial. It has apparently been granted a freedom of access to the schools and par- ticularly to the high schools, which has been denied to other groups. Speakers representing business interests appear frequently in the public schools, while those who criticize questionable business meth- ods often are excluded. Dr. Beale found in his investigation that "one ever-welcome speaker in Illinois was Samuel Insull, but the few daring men who pointed out the practices for which he later became a fugitive from justice were barred as 'radicals'." Dr. Beale then goes on to tell how Prof. Charles H. Judd's pamphlets, Lessons in Community and National Life, distributed by the United States Bureau of Education, were attacked by the National Industrial Con- ference Board because they advocated minimum wage laws, social insurance, the eight-hour day, and the outlawing of night work for women. The Board, described by Beale as a "propaganda agency of Big Business," issued a pamphlet denouncing Judd's Lessons. Its influence was so great that many schools stopped using Judd's pamphlets. The public utility interests have been particularly well organized to propagandize the schools and combat any educational influences inimical to them. The campaign was begun by Samuel Insull in 1920 when he established an Illinois Public Welfare and Public Utility Educational Service. In 1923, the National Electric Light Association began a concerted movement to storm the schools with propaganda. In 1925 the N.E.L.A. committee reported that "some of the State Bureaus have accomplished a very important task in having removed from school, textbooks with unfair, biased, incorrect and misleading statements concerning public utilities." One docu- ment of the strong Illinois Committee boasted: "We have located practically every textbook, and have also found the textbooks in course of preparation, and have been able to be of considerable assist- ance to the writers." An investigation by the Federal Trade Com- mission in 1928 revealed that the activities of the public utility 76 PURSUIT OF FREEDOM interests in attempting to entrench the doctrine of private ownership of public utilities were often subtle and well organized. The charge has been levelled against the Chicago Board of Edu- cation that it fails to encourage democracy within its own field. Dr. John A. Lapp, a distinguished Chicago educator, in an address, April 20, 1942, before a forum of the City Club and Committee on Public School Affairs, charged that the city's school system was dominated by totalitarian concepts. Final power over the second largest school system in the country, he said, was concentrated in the hands of President McCahey of the Board. Although not him- self an educator, McCahey runs the system with a dictatorial hand, often not bothering to consult fellow board members, according to Dr. Lapp. He said that a spy system permeated the schools and extended even to the Parent-Teachers Associations. Friends of those in political control are favored and enemies demoted, and the Chicago Teachers Union, numbering the majority of teachers, ig- nored on personnel problems, Dr. Lapp added. "Children edu- cated in this totalitarian atmosphere," he emphasized, "cannot be expected to be good democratic citizens when they reach maturity." The City Club, the Citizens Schools Committee, the Chicago Civil Liberties Committee, and other civic organizations have repeatedly protested to the Board and to Mayor Edward J. Kelly, who ap- points Board members with the consent of the City Council, against practices which they consider undemocratic. Metropolitan daily newspapers of Chicago, in the spring of 1935, displayed headlines featuring the story of an individual business man's attack on academic freedom at the University of Chicago. Some of the streamer heads were: REDS ABOUND ON THE MIDWAY CAMPUS COMMUNIST TEACHERS BELONG IN RUSSIA PROFESSORS ANNOUNCE FOR FREE LOVE SENATE TO INVESTIGATE U OF C'S REDS ■ Charles R. Walgreen, chain drugstore owner, had withdrawn his niece, Miss Lucille Norton, from the university, after charging that "Communism had become a communicable disease on the campus." He accused President Robert M. Hutchins and Prof. Charles H. Judd of being "an official part of the propaganda service of Mos- cow." They had sponsored the Anglo-American Section of the Uni- versity of Moscow Summer School. The Chicago Herald-Examiner y in an editorial April 18, 1935, demanded an investigation to ascertain the truth of the charges. The ACADEMIC FREEDOM 77 Senate of the Illinois General Assembly appointed a committee to conduct the inquiry, which opened May 13, 1935 in Chicago. Mr. Walgreen testified that his niece, through study of various forms of government in a required social science course, and by association with students, had come to believe that communism would be an excellent form of government; that students were cautioned against appeals made in the name of patriotism and were told that the family was disintegrating. President Hutchins, Prof. Charles E. Merriam, Mrs. Edith Foster Flint, Prof. Frederick L. Schuman, Prof. Gideonse, and Harold H. Swift, a trustee of the university, all repudiated the testi- mony of Mr. Walgreen. Prof. Merriam testified in part as follows: I am Chairman of the Department of Political Science, and am chiefly responsible for the type of civic education in the University. I gladly assume that responsibility, for I am proud of our work. ... I resent these charges, insinuations, or innuendoes against my life work in and for this city and the University and I denounce them as uninformed, false, or malicious. . . . Who is it that now brings these charges against my department and our system of civic education? What facts do they supply to discredit our work? I charge these persons, wittingly or unwittingly, with attacking one of the strongest forces for the stabilization and maintenance of our civilization — our University. I charge them with efforts to break down and destroy one of the greatest centers of civic instruction and governmental research in America. I charge them with attempted grand larceny of human reputation and achievement. . . . What we tend to subvert is not American institutions but misunderstand- ing, injustice, corruption, graft, waste, special privilege in American public life. If there is unrest in this land, and there is, and if many men in their bitterness and discontent reach out blindly in a feverish struggle to find a way out, then seek out the causes of discontent and cure them; otherwise, anguish and bitterness will grow greater and the dangers rise. We professors did not close the banks ... or organize the Mid- West Utilities, or throw millions out upon the streets . . . what we have to do is to deal with the aftermath of these calamities as best we can and try to build up sound American thinking for the future so these troubles may not recur so frequently. Only madness moves those who in the name of American liberty try to suppress thought on how that liberty may be preserved, or in the name of Americanism try to break down that system of free education upon which, as Jefferson pointed out, Democracy must rest. I raise my voice to say, looking back over 30 years of political observation and experience, that when free thought dies in our Universities, we may be sure that American liberty and American democracy have not long to live. 78 PURSUIT OF FREEDOM The Senate investigating committee submitted its report from which the following is quoted: Schools and universities are not exempt from the operation of these (the sedition statutes) or any other penal laws — neither are the professors or teachers so exempted. The question, therefore, before the committee was: "Has the University of Chicago or any of its professors violated either the letter or spirit of our laws?" Even a cursory reading of the evidence before us will force the conclusion that the answer to this question must be in the negative. Neither the Uni- versity of Chicago nor any of its professors have advocated the violent over- throw of the established form of government of the United States and the State of Illinois. On the contrary, its social science department is conducted along recognized, proper lines of government throughout the world. Nothing in the teachings or the schedule of the school can be held to be subversive of our institutions or the advocacy of the communist form of government as a substitution for the present form of the Government of the United States. Two years after the investigation, Mr. Walgreen contributed to the University of Chicago approximately $550,000 worth of stock for the specific purpose of establishing a foundation for the study of American institutions. The attack on academic freedom at the University of Chicago was a part of a widespread hysteria of allegations on subversive teach- ing, to which President Hutchins called attention some months be- fore Mr. Wal green's charges were made public. "We are being treated to one of the red scares which we have every once in a while," he said at the Union League Club in Chicago, in February, 1935. "The only new aspect of this one is that the reds are now in college. They used to be impoverished foreigners." Selection of textbooks for use in public schools is recognized as an important phase of the whole problem of the civil right of academic freedom. Prof. Charles H. Judd of the University of Chicago has said that "the selection of superintendents (of schools) in various large cities is altogether in the hands of book companies." Freedom in the use of textbooks is subject to the same pressures as free- dom of teachers and educational activities in general. Of the place textbooks hold in the whole field of freedom in teaching, Dr. Beale, in his studies to which reference has been made in this chapter, found that: The domination of textbooks over American education makes their selec- tion an important factor in freedom in teaching. Pupils in the average American school accept everything in the text as gospel. Their idea of ACADEMIC FREEDOM 79 education is memorization of all the "facts" in all textbooks the school pre- scribes. . . . Even more important than those who choose the texts are the pressure groups — such as publishers, public utility educational com- mittees, and various types of "patriotic" organizations, which seek to influence the schools. Prof. Counts, ex-president of the American Federation of Teachers, maintains that: The publication of textbooks is very largely in the hands of private pub- lishing companies which are conducted as business enterprises. Since these companies are interested in getting their own books adopted as widely as possible, they very commonly bring pressure to bear upon the authors to eliminate everything that might be objectionable to any important group of citizens in the nation. Moreover, the authors themselves have, no doubt, in many instances been easily convinced of the wisdom of leaving contentious matters out of their work. . . . Under these conditions the textbook tends to become a perfectly innocuous and colorless compendium of non-con- troversial knowledge and consequently an instrument of social conformity. Dr. Beale tells how, as part of an extensive campaign to influence public opinion through the schools, the utility interests instituted negotiations with Ginn and Company. At a conference arranged by the publishing company between the utility men and Howard C. Hill of the University of Chicago High School, Hill was asked to submit the manuscript of his book, Community and Vocational Civics, to the utility men for approval. The manuscript contained this sentence: "As late as 1926 a man then serving as president of a number of electric light companies in the Middle West gave in a single primary election over $200,000 to the campaign funds of both parties." When the book was printed, this relevant and signif- icant fact was omitted. When William Hale Thompson was mayor of Chicago, Modern History, by Hayes and Moon was banned from the public schools. The mayor at the time was advocating "knocking King George in the snoot," and there was objection to this history for it placed John Locke, the English philosopher and political scientist, among the liberals credited with having contributed to the thinking of the American revolutionists. In 1933, the Illinois General Assembly enacted a law to the effect that: The religion or religious affiliation of any applicant seeking employment either as a superintendent, principal, teacher or otherwise in the public grade or high schools of the State . . . shall not be considered either as a qualifica- tion or disqualification for any such employment. . . . 80 PURSUIT OF FREEDOM The enforcement of this law, as with others, depends on the state of public opinion concerning its usefulness. The law has failed of itself to prevent discrimination against Jewish applicants for teach- ing positions in some communities, Catholics in others, and non- Catholics elsewhere. The Ku Klux Klan of a downstate Illinois town protested pres- entation by a teacher in the public schools of a thirteenth century miracle play. The anti-Catholic Klan objected to the pupils of the school playing the roles of nuns. The affair caused a community disturbance, but did not prevent the presentation of the play. In Chicago, the Klan undertook to prevent the naming of a public school for the famous surgeon and Catholic layman, Dr. John B. Murphy. A hearing was conducted under the direction of the school board, and eminent Protestant doctors of medicine, gave testimony to the standing in which Dr. Murphy was held in the medical fra- ternity. The school was named for the famous surgeon. Public schools in Illinois, as in many other states, suffer from the domination of politically-minded school boards, the members of which have been appointed or elected as a reward for political party service. This is a practice in innumerable communities ; how- ever, Dr. Beale emphasized that this spoils system in the schools is more common in the larger cities than in the smaller communities where school trustees are elected. Dr. Beale said of the school trustee in general: In the larger cities he is usually a politician, often a cheap and corrupt politician, frequently uneducated, though in Chicago a fair-minded, public- spirited woman, Mrs. Heffernan, is the only member who has managed to stay on the Board during the vicissitudes of the last decade, while scheming politicians have come and gone. Professor Counts, after completing a study of the Chicago school system, described as a basic evil the law which "makes the board of education the creature of municipal government." All impartial observers agree that the absence of experts in education is one of the startling deficiencies of all school boards, urban or rural. Until board membership is more professionally and impartially consti- tuted, academic freedom will suffer interference from groups power- ful enough to make their demands felt. In the exercise of academic freedom as an aspect of contemporary education in Illinois, the public school system of Winnetka and the private Francis W. Parker School of Chicago present an encouraging trend in education. The advances in public education in this de- ACADEMIC FREEDOM 81 mocracy are widespread , they are especially emphasized in these two institutions. Colonel Parker, the pioneer educator who founded the latter school, believed that joint meetings of teachers and parents were essential, that education required co-operation between home and school. This principle, since its inception by Colonel Parker at the Cook County and Chicago Normal School in 1883, has grown into the present national and state Parent-Teacher organizations. Colonel Parker gave his teachers freedom to experiment with new methods of teaching designed to develop, through group effort, a use of the children's varying powers and gifts, as a step toward good citizenship. His ideals of freedom in education were carried on for thirty-three years by Miss Flora J. Cooke, who succeeded him as principal in 1901. In Winnetka, Superintendent of Schools Carleton Washburne has worked out a dynamic plan of democratic participation in school administration. All administrative policies are worked out co- operatively by superintendent, supervisors, principals, and teachers: first, by frequent meetings of the superintendent and principals; second, by participation of the teachers with the administrative and supervisory staff in planning the curriculum and method of instruc- tion; third, by an active parent- teacher association and a board of education in close touch with what is going on in the schools and various community agencies. Of the Winnetka plan of democratic participation, Washburne said, "Participation means not only the participation of the community in the schools, but the participation of the schools in the community. Teachers must be aware of what is happening in the world outside, must avoid a cloistered life, if they are to make education vital." Also there is the participation of students, who themselves indicate what subjects they want to study and in what projects they will engage. The demands of a truly democratic school system, according to Washburne, are not satisfied simply because the electorate partici- pates in selecting the board of education, and merely because schools are open to all children. Of the old method of school management he wrote: In the traditional school, be it public or private, the superintendent or head- master is the autocrat, except where the autocracy extends back of him to the controlling board. He decides what the teachers' programs are to be, what methods and even textbooks they are to use, what curriculum they are to follow, what type of discipline they are to preserve. The teacher, in turn, is equally autocratic in her management of the children. With our lips we preach democracy, with our actions we deny it. 82 PURSUIT OF FREEDOM Believing that every school superintendent should be subject to recall by his staff, Washburne has set up machinery by which the teachers, through their own organization, can ask for a change in administration without jeopardizing their own position. Any time the faculty wishes such a change, any ten members may file a petition with the executive committee of the Winnetka Teachers' Council, stating the charges or the reasons. The Council then will notify the superintendent of the criticism, without revealing the names of the petitioners. The superintendent has a right to answer the charges at an open faculty meeting, after which a referendum vote will be taken. If a majority of the faculty want him removed, the superintendent must agree to resign. Believing that free inquiry is indispensable to the good life, educators generally deplore any inroad made on freedom of teach- ing in schools and colleges, whether by private interests or by legis- latures. Yet, more laws interfering with the public school curric- ulum have been enacted since the First World War than in all the years preceding; more teachers have been dismissed for their views; more propaganda for the status quo has colored education. CHAPTER VI RIGHTS OF POLITICAL MINORITIES Majorities do not suffer infringements of their civil rights 5 it is the small and struggling political organization trying to transform itself into a major party which finds it must fight for the right to exist. Minor parties have existed in Illinois since the abolition move- ment crystallized anti-slavery sentiment. The first of these was the Liberty Party, organized in 1840, followed in 1848 by the Free Soil Party which disbanded in 1852. The American (Know-Noth- ing) Party, formed in 1854 on the slogan of America for the Americans, flourished for a few years and disappeared. The Civil War first presented the problem of a minority party trying to function during a period of extreme stress. Despite "the complete disregard of personal liberty evidenced in the arbitrary arrests of critics of the administration, and in the denial of freedom of speech and of the press," of which the Democrats complained, 83 84 PURSUIT OF FREEDOM they polled a large vote in 1864 for their candidate for the Presi- dency, General McClellan. The high point of the struggle over civil rights during the Civil War was reached September 24, 1862, when President Lincoln ordered general suspension of the writ of habeas corpus, affecting "all rebels and insurgents, their aiders and abetters" and "all per- sons discouraging voluntary enlistments, resisting military drafts, or guilty of any disloyal practices." These were subjected to martial law. Congress on March 3, 1863, confirmed the President's right to set aside habeas corpus. After the war various parties arose — the National Labor and Re- form Party, the Prohibition, the Greenback of Independence and the Socialist-Labor. The Socialist-Laborites complained in 1874 that "every form of thievery" had been practiced to cripple their activities and reduce their vote. But during the late seventies the party elected several Chicago aldermen as well as representatives in the Legislature. In the early 'eighties, political minorities and labor groups merged their efforts and agitated for the eight-hour day. The period was marked by bitter nation-wide strikes, culminating in the Haymarket Riot of May 4, 1886. As a result, all known and suspected an- archists and socialists who could be found were arrested. Raids were made and detectives broke into private premises, confiscating records and material without thought of warrants or of the legality of their acts. "Make the raids first and look up the law afterward! " State's Attorney Julius S. Grinnel ordered publicly. During the ensuing trial of the anarchists named in criminal indictments, it is related that: The prosecution, unable to establish any evidence of even remote personal participation of any of the accused, took the stand, that in speech and in writ- ing, the accused had urged the employment of force and it must have been upon such advice that some unknown person acted. Pertinent evidence against the men was still so meager, however, that the trial soon resolved itself into a trial of "anarchism" and of the accused as "anarchists." Labor turbulence and agricultural dissatisfaction during the 'eighties and 'nineties, aggravated by widespread financial dislo- cations, brought new demands for reform. In 1892 agrarian and labor groups united to form the Populist or People's Party. Its platform "was regarded throughout the East as little short of com- munism, yet within a generation almost every one of the planks had been incorporated into law in whole or in part." Among other things, it called for a flexible currency system, the eight-hour day RIGHTS OF POLITICAL MINORITIES 85 for labor, the direct election of United States Senators, the Aus- tralian ballot, and the initiative and the referendum. In 1897 the Social Democratic Party was founded, and in 1901 the Socialist Party of America, largest of the minor parties during the first two decades of the twentieth century. Preceding America's entry into the war by two months, Con- gress passed an act on February 5, 1917, regulating the immi- gration of aliens to the United States. In part this statute provided for the exclusion of alien anarchists or "persons who disbelieve in or advocate the overthrow by force or violence of the Government of the United States, or of all forms of law, or who disbelieve in or are opposed to organized government, or who advocate the assassi- nation of public officials ..." This measure was an elaboration of the act of 1903. Less than two months after war was declared, the Espionage Act of June 15, 19 1 7, was in force. This provided in part that: Whoever, when the United States is at war, shall willfully make or con- vey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, and shall willfully cause or attempt to cause insub- ordination, disloyalty, mutiny or refusal of duty, in the military or naval forces or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States . . . shall be fined or imprisoned, or both." Under the act as amended on May 16, 191 8, a number of persons were tried and convicted. Justification for the passage of the act and its amendment was epitomized in a statement by Justice Oliver Wendell Holmes of the U. S. Supreme Court in the Schenk case of 19 1 9, when, for a unanimous court, he laid down the rule which has come to be known as the "clear and present danger" rule: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right. Feeling that existing measures still were inadequate, Congress passed a bill on October 16 to exclude and expel aliens who were "members of the anarchistic and similar classes." The act not only excluded such aliens who might be considered anarchistic, but also provided for the deportation of "any alien who, at any time after 86 PURSUIT OF FREEDOM entering the United States," became a member of one of the an- archistic classes. Under the phrase, "similar classes," labor leaders and members of radical minorities sometimes were shipped to the countries of their origin. Government agents conducted wholesale raids on the homes of persons connected with trade unions and left-wing political groups. Critics of the war were silenced by jail sentences. In September, 19 1 7, several raids were made in Chicago on the national head- quarters of the Socialist Party and the Industrial Workers of the World; on the home of William D. ("Big Bill") Haywood, inter- national secretary of the I.W.W.; on the homes of Harrison Gray, Ralph Chaplin, Vincent St. John, and John Farley, all of whom contributed to the I.W.W. organ, Solidarity. Printing plants raided included those of the Arbeiter Zeitung, where the American Social- ist was being published; the Socialist Demokraten; 2nd the Rad- nicka-Straza, which was the organ of the Croatian branch of the South Slavic Socialist Federation of the United States. In addition, a number of left-wing Chicago journals were suspended or denied mailing privileges. As a result of the raids, reported the New York Times on September 7, 1917, officials claimed that not a Socialist, Anarchist, or I.W.W. organ was being printed anywhere in the country. In 19 17 the People's Council of America, a pacifist organization, attempted to hold its national convention in Minneapolis. Per- mission for the meeting was refused. The Council then tried to meet in a small Wisconsin town, where it also was banned. Next it tried Chicago, and four train-loads of delegates were detained until Mayor William Hale Thompson issued a statement declaring that he knew of "no law under the constitution which abrogates the right of free speech," despite the existence of the war. The Council met in the West Side Auditorium on September 1. In attendance were Congressman-at-large William E. Mason of Illinois; ex-senator John D. Works of California; Morris Hillquit, a prominent New York socialist; Dr. Judah L. Magnes, a re- nowned Jewish scholar; Victor L. Berger, socialist and former Con- gressman from Milwaukee; Prof. Robert Morss Lovett of the Uni- versity of Chicago; and Seymour Stedman, socialist and attorney. The bulk of the attendance consisted of delegates from all over the country. The Chicago Chamber of Commerce hastened to inform Governor Frank O. Lowden of the meeting. The governor ordered the Chicago police to disperse the gathering. Chairman Seymour Sted- RIGHTS OF POLITICAL MINORITIES 87 man and others asked to be arrested in order to make a test case of the incident. The challenge went unheeded. Later the same day, leading members of the Council met in a private home, where it was decided to hold another meeting the following day in the West Side Auditorium. In the middle of the session at the Auditorium, a newspaper man telephoned Stedman to warn him that the governor had dispatched the militia on a special train from Springfield to break up the meeting. The business of the conference was hurried along. Immediately, two resolutions were presented and accepted by the body. One demanded that the President state his war aims, and the other declared the Coun- cil's program for peace. The militia marched into the hall just as the meeting adjourned. In 1 9 1 8 Thomas Watt Gregory, Attorney General of the United States (191 4- 19), stated that throughout the World War his de- partment had proceeded "upon the general principle that the con- stitutional rights of free speech, free assembly, and petition exist in war time as in peace time, and that the right of discussion of government policy and the right of political agitation are most fundamental rights in a democracy." Although the war had ended, the Illinois legislature enacted on June 28, 19 1 9, the Sedition Act, which still is on the statute books. The act made it illegal: (1) for any person to advocate in speech or writing the reformation or overthrow, by violence or other un- lawful means, of the representative form of government; (2) for any person to publish, issue or knowingly sell or distribute any printed matter advocating the reformation or overthrow of the government by crime or violence; (3) for any person to organize or become a member of any society advocating such reformation or overthrow; (4) for any person knowingly to attend a meeting at which such reformation or overthrow of the government is advo- cated; (5) for any person controlling any facilities for meetings knowingly to permit them to be used as the headquarters or meet- ing place of an organization advocating crime and violence as a means of accomplishing the reformation or overthrow of the govern- ment; (6) to display publicly or privately any flag or other insignia symbolizing a purpose to overthrow the government by force or violence. Only once since the adoption of the act has a case actually been tried under its provisions. This was in 1920, when thirty-nine members of the Communist Labor Party were indicted for con- spiracy. The party had been formed in September, 19 19, following 88 PURSUIT OF FREEDOM a convention of the Socialist Party in Chicago. Twenty of those indicted were arrested, tried, and convicted. Eighteen appealed their sentences. One of the appellants was William Bross Lloyd, million- aire socialist. Lloyd's prominence turned the spotlight of public interest on the case. The prosecution charged that on November 29, 19 18, Lloyd had driven his automobile down State Street, Chicago, flying a large red flag and an American flag. Further, it was charged that following his arrest, he stated in a police court that he displayed the American flag only as a matter of courtesy, and that the red one was his most valued flag. It also was alleged that on January 12, 191 9, Lloyd addressed a meeting of four or five thousand work- ers at Milwaukee, where he advocated revolutionary preparedness and urged the collection of rifles, machine guns, artillery, and dyna- mite. These statements he denied. Among the defendants was the owner of a Clark Street book store, who was charged with displaying communist literature and with having pictures of Lenin and other Russian revolutionary lead- ers on the walls of his store. In its majority opinion, the Supreme Court of Illinois found that: Plaintiffs in error advocate the overthrow of this government and the substitution of class rule. They repudiate the idea of a government "of the people, for the people and by the people." Interpreting their language literal- ly, they propose to organize all who have no property and by sheer force of numbers seize the property from those that have it. They preach class hatred and class war. The dissenting opinion was delivered by Justice Orrin N. Carter, who pointed out that the Sedition Act, along with other similar state acts, was the product of a "war psychology," and that legislation considered wise in war time might be unwise in peace time. Justice Carter quoted the following passage from Cooley's Constitutional Limitations: Repression of full and free discussion is dangerous to any government resting upon the will of the people. The people cannot fail to believe that they are deprived of rights, and will be certain to become discontented when their discussion of public measures is sought to be circumscribed by the judg- ment of others upon their temperance or fairness. Carter further declared that the Illinois Act of 19 19 was: designed not so much, perhaps to punish those who commit violent acts to overthrow the government, but rather it was drafted for the purpose RIGHTS OF POLITICAL MINORITIES 89 of forbidding any person who held opinions distasteful to the majority of our citizens to express those opinions. Quoting some of "the great leaders in our past history," par- ticularly Lincoln and Jefferson, Justice Carter averred that their "public utterances would have been punishable" under provisions of the act because it "is so drastic and far-reaching." He also stated that many passages in the Declaration of Independence could be held seditious under interpretations of the act, and that public read- ing of the Declaration could be forbidden. Regarding the statute's ambiguity, Justice Carter said: The wording of the statute of 191 9 is so general and lacking in clear- ness that it is possible for almost anyone who expresses an opinion contrary to the view of the government authorities to be prosecuted under it for sedition. It was Justice Carter's dissent which caused Governor Len Small promptly to pardon the defendants, according to Clarence Darrow, one of the defense attorneys. A. Mitchell Palmer assumed the office of Attorney General of the United States on March 5, 19 19. Throughout the nation, Palmer introduced a series of raids on the offices of trade unions and political minorities which were considered by constitutional lawyers as unparalleled in the history of the Department of Justice. He ap- pointed men who shared his views to serve in the various districts of the country. Indeed, the months of Palmer's incumbency as At- torney General following the war have come to be known as "The Palmer Raid Days." Palmer's agents were active in Chicago, where one "Red" plot after another was "discovered" during 1920. I.W.W. offices and headquarters of radical minorities were raided frequently. Early in the year, the local chief of the Bureau of Identification of the Department of Justice, John T. Creighton, declared that: "The heart of radicalism is broken in Chicago. We have 300 of the people we want in cells, and an estimated 700 under arrest in the Chicago district." The statement proved to be premature. In Waukegan, Illinois, the mayor forbade a meeting of steel strikers in December, 1 9 19, because at a previous meeting it was reported that someone had said that if Abraham Lincoln were alive, he would have favored the Soviet form of government. Criticizing this official act, Oswald Garrison Villard, writing in the Nation, said: "On this ground the mayor undertook to deprive 2,500 people of their constitutional right to hold a public meeting." During the winter of 1919-20, Rockford was the scene of raids 90 PURSUIT OF FREEDOM made by federal, county, and city officials. Here Clarence Darrow won an important case for the Communist Labor Party. About 125 people had been arrested, nine of whom were indicted under the Sedition Act. One of the nine was Arthur Person, a Swedish-born glassmaker, thirty-nine years old. Person was a citizen, having received his final naturalization papers in 1906, nine years after he came to the United States. He was secretary of the Rockford branch of the Communist Labor Party. The indictment charged him with holding membership in an organization which sought to overthrow the government. Clarence Darrow was chief defense counsel. As a preliminary, Darrow moved to have the indictment quashed on the ground that it was unconstitutional. His motion was denied by Judge H. K. Welsh of .the Circuit Court. After a brief trial,. Darrow arose to review the case for the defense on the morning of April 24, 1920. His speech lasted two and a half hours. There were times, reported the Rockford Post that night, when "the jury and the spectators were held spell-bound by the brilliant climaxes of the orator." The illegality of the indictment was not questioned when Darrow resumed his seat. Person was found not guilty. Upon a motion of the state's attorney, the other indictments were nol grossed. The New York Times reported on May 1 that raids the night before in Chicago had netted three hundred "suspicious characters, including many actively identified with the I.W.W., Communist, Communist Labor, and other radical organizations." More raids, said the Times, were planned for the "early hours of tomorrow." Officials claimed that a revolution was scheduled for May Day. Now, with all the suspects in jail, continued the paper, authorities no longer expected the outbreak. On October 9, 1920, the Pekin Times reported that the Depart- ment of Justice had ordered nation-wide arrests of radicals to thwart a plot for another armed revolt. The same day the Chicago Herald- Examiner, after noting the arrest of twelve men, said the raids would continue until Chicago was "rid of undesirables." Finally, in that year, twelve distinguished members of the Ameri- can bar signed a bill of charges against the activities of the Depart- ment of Justice, in the form of a pamphlet entitled To the American People: Report Upon the Illegal Practices of the United States Department of Justice and published by the National Popular Gov- ernment League. The acid test for the civil rights of minority parties has been pro- vided in recent years by the Communist Party. It is now banned RIGHTS OF POLITICAL MINORITIES 91 from the ballot in Illinois through the passage in 1941 of the Collins Act, amending the Primary Act and providing that: No political organization or group shall be qualified as a political party or given a place on the ballot, which association or group is associated directly or indirectly with communistic, fascist, Nazi or other un-American prin- ciples and engaged in activities or propaganda designed to teach subservience to political principles and ideals of foreign nations or the overthrow by violence of the established constitutional form of government of the United States and of this State. Inasmuch as there was no fascist or Nazi party to be banned, the apparent impartiality of the Collins amendment was thinly dis- guised. Although both federal and state governments had been proceeding against communists for several years, largely under the spur of the Dies Committee, no action was taken against Nazis or native fascists until months after war had been declared on Germany. When the Soviets became an American ally in the war against the Nazis, the crudity of such measures as the Collins amendment be- came widely apparent. Indicative of the temper of legislators who passed the Collins bill was the action of Representative Reed Butler, chairman of the executive committee, in ejecting the secretary of the Chicago Civil Liberties Committee while distributing copies of the Bill of Rights to committee members at the hearings. The Committee protested the denial of the right to be heard at the hearings. Mr. Butler represented Lewistown, where five communists were indicted for sedition in 1940 for circulating petitions to place the Communist Party on the ballot. Another Collins bill for a "Little Dies" committee in Illinois, and other bills to deny relief, old age pensions and mothers' pen- sions to communists were buried in committee. The Legislature did pass a Collins bill prohibiting employment of communists by the state. The anti-communist hysteria of 1941 presented a sorry picture of dominant parties running roughshod over the rights of a minority party and recalled the persecution of the abolitionists in the i840's, of the anarchists in 1886, and of the socialists and I.W.W.'s during the first World War. In the spring of 1935, the Chicago Park District refused to allow Father Charles E. Coughlin, radio priest and organizer of the National Union of Social Justice, to speak at Soldier Field. The Coughlin case was carried to the Supreme Court of Illinois, which upheld the ruling of the board prohibiting speeches of a political 92 PURSUIT OF FREEDOM or economic nature on property controlled by the park district. This ruling later was incorporated in the Park District Ordinance. In September, 1936, the park commissioners rejected an application requesting the use of Soldier Field for a mass meeting at which Dr. Francis E. Townsend was to speak on his old-age pension plan. In addition to retaining the right to grant or deny speaking permits for Chicago parks, the board requires the speakers to submit their proposed addresses for advance approval or censorship. In August, 1939, the Chicago Park District designated certain locations in four parks — so-called "little Hyde Parks" — where anyone might speak without a permit. On October 2, 1939, agents for Representative Martin Dies, chairman of the House Committee on Un-American Activities, raided the Chicago offices of the American League for Peace and Democracy, seizing the League's files without a warrant. The Chi- cago Civil Liberties Committee wired a protest to Mr. Dies, stating that his action was in violation of the constitutional guarantees against unreasonable search and seizure, as well as of the criminal code of Illinois. The next morning Mr. Dies left for Washington, leaving his investigation unfinished, but taking the League's files. The Chicago Daily News editorially satirized the Dies Committee investigation, especially an announcement by Mr. Dies that he had learned there were more than 500 milkmen in Chicago who were communists. The editorial, entitled "The Red Milkmen," suggested that Mr. Dies had erred in his estimate of the number of communist milkmen and had over-estimated their danger to the community. In Illinois, laws governing state elections require that a new political party seeking a place on the ballot shall file with the Secretary of State a petition containing notice of intentions; the name of the party in not more than five words; a complete list of candidates for all offices to be filled; and the signatures of not less than 25,000 qualified voters, including those of at least 200 qualified voters from each of at least fifty counties within the state. Filing such a petition enables the new party to have the names of its can- didates on the ballot for the next election. The party becomes an "established political party," no longer subject to the filing of petitions if any one of its candidates receives more than 5 per cent of the total vote cast in the election. Petitions thus filed, however, can be challenged by any interested group or person questioning the validity of the signatures and the fulfillment of other state requirements. The Secretary of State, the Attorney General, and RIGHTS OF POLITICAL MINORITIES 93 the Auditor of Public Accounts determine the accuracy of the charges. The law places an onerous burden on minority parties in a state largely rural outside the metropolitan area, and in effect establishes a monopoly for the two dominant parties. Minority parties are obliged to send canvassing crews into rural counties in order to obtain signatures. As the chief function of minority parties under the two-party system has been the formulation of new issues, many of which are later incorporated in the body of the law, the Illinois election statutes constitute an effective limitation upon the civil rights of important groups of the population. Neither of the dominant parties is anxious to revise statutes which give them a favored position. The situation is on a par, in some regards, with the consistent refusal of the legis- lature to redistrict the state since 1900. The effect of that has been to set up "rotten boroughs," to deprive many of equal representation in both congress and legislature, and to deprive the metropolitan area of its due representation at Springfield. CHAPTER VII FREEDOM WITHOUT EQUALITY Slavery came to Illinois in 1720 when a Frenchman brought 500 Dominicans to work the rich lead and silver mines in the southern part of the state at a time when Illinois was French. When the British took over Illinois in 1763, slavery rights were recognized along with other property rights. In 1778 George Rogers Clark and his Virginians wrested the Northwest country from the British, and Virginia erected the vast territory into Illinois County, with slavery on the same basis as in the Old Dominion. In 1782-84 Thomas Jefferson sent the Rev. James Lemen into Illinois County to fight slavery, but the effort failed of immediate success. However, Virginia ceded Illinois County to the nation in 1784 and three years later the Northwest Ordinance outlawed slavery there. But the Northwest Ordinance did not free the slaves already in the Territory, it turned out. Governor Arthur St. Clair ruled that the law prevented only the introduction of new slaves. The slavery 94 FREEDOM WITHOUT EQUALITY 95 question then became the moot subject of legislatures and governors, as Illinois was made a separate territory and then, in 18 18, into a state. Laws for the most part favored the conception of the Negro as chattel property, without the rights of a free citizen. The 18 18 Constitution watered down the Northwest Ordinance's outright provision against slavery by arranging for slavery by contract and by denying the free Negro the vote and the right to be counted in the census or to serve in the militia. It was still possible to import slaves into Illinois through the sub- terfuge of indenture. In addition the Black Laws, passed between 1 8 19 and 1853 at the behest of slave-holders and their sympathizers, provided that no Negro could settle in Illinois unless he had a free- dom certificate, attested in a court, and that no Negro should be brought in to be emancipated. Thus Negroes found in the state without a freedom certificate were adjudged slaves and sold at auction if unclaimed. Governor Edward Coles, in 1822, fought for repeal of the black code. He had left Virginia in 18 18, bringing his slaves with him to be emancipated and giving each of them 160 acres to set up a free community. Abolition propaganda began in 1831 and had early repercussions in Illinois, reaching a bloody climax in 1837 with the murder of Elijah Lovejoy in Alton. Beginning in 1836, decisions of the Supreme Court began to show a more liberal attitude on slavery. In one case, young Abraham Lincoln was attorney for "Black Nance" who claimed freedom on the ground that her master could not prove she was a slave. Lincoln won. The fugitive slave controversy raged up and down the nation and in the courts. Illinois, in the second constitution of 1848, ordered the legislature to prevent "free persons of color" from settling in the state, and to prohibit the practice of bringing in slaves to set them free. In 1853 the federal fugitive slave law was supplemented by a state law imposing fine or sale at public auction upon any Negro, whether free or slave, who entered Illinois. In 1857 the crude Dred Scott decision, terming Negroes "an ordi- nary article of merchandise and traffic" and having "no rights which the white man was bound to respect," set the nation afire. The final conflict could no longer be delayed. The famous Lincoln- Douglas debates defeated Lincoln for the U. S. Senate but helped elect him President in i860. Lincoln set free the slaves in the rebel states in his immortal Emancipation Proclamation. There followed the Thirteenth Amendment abolishing slavery everywhere in the nation, with 96 PURSUIT OF FREEDOM erasure of the Black Laws from the Illinois statutes. In 1868 the Fourteenth Amendment stated the rights of Negroes, and the Fifteenth Amendment in 1870 affirmed their right to vote. Not until 1885 did Illinois enact a civil rights bill for Negroes, framed by J. W. E. Thomas, first Negro to be elected to the legislature. In 1 89 1 Illinois passed a law holding all marriages entered into in the state of slavery to be valid and the offspring legitimate, with the right to inherit property. Legally, at last, the colored man was the white man's equal. Seventy-seven years after the close of the Civil War, Negroes are technically free and equal in Illinois, as in the rest of the United States. Actually they are segregated, denied equal access to most labor other than menial, the first to be fired and the last to be hired, largely Jim-Crowed in the Army and Navy, banned from service in many of the better hotels, restaurants and places of public accommodation. In Chicago their children are singled out for the notorious two-shift educational system. Illinois can boast only that political equality is accorded the Negro; economic and social equality are banned by taboos which, while not so rigid as those that Hitler has fenced around the Jews in Europe, serve a similar purpose. The Illinois Civil Rights Act of 1885, as subsequently amended, categorically forbids discrimination against Negroes in public places by listing in great detail the services to which they may have equal access. Violators are liable to damages of $25 to $500 to be paid the victim, a fine which may not exceed $500, and imprisonment. Public places indulging in discrimination may be declared public nuisances and abated. Banned are signs such as "White Patrons Only," or any publication of racial prejudice. The Illinois Supreme Court as early as 18 70 reprimanded the Chicago and Northwestern Railway for barring a Negro from first- class accommodations, but as late as 1938, a Negro was awarded $100 damages after being forced to sit in the rear of an interstate bus. Theaters have been found guilty of assigning Negroes to special seats; and it was necessary to specify "soda fountains" in the Civil Rights Act as among the places which may not discriminate against colored people. It takes a hardy person, backed by money, to contest such viola- tions. Nevertheless, from time to time, suits are filed and cases take their tedious way through the courts. Earl B. Dickerson, Chicago city councilman, then a special Assistant Attorney General and later a member of the President's Committee on Fair Employment Practice, brought suit, alleging that he was denied accommodations in 1939 FREEDOM WITHOUT EQUALITY 97 at the Springfield hotel named in honor of the Great Emancipator. The courts denied him redress in a decision handed down in 1941. In southern Illinois, Jim-Crow practices are rife despite the law. Separate accommodations are maintained in many restaurants for Negroes and separate facilities provided in other public places, much as in the deep South. Some Chicago restaurants have evolved techniques for discour- aging Negroes — such as slow service, spoiled food, short portions, even though it has been ruled that these are violations of the act. Some Chicago Loop hotels, while serving Negroes attending mixed meetings in private rooms, will not permit them in elevators — except as elevator operators. The Edgewater Beach Hotel was eager to provide facilities for the Chicago Civil Liberties Committee to hold a "Four Freedoms" dance, until it was learned that Negroes would be among the guests. The racial prejudice underlining all these violations of the Bill of Rights Act occasionally flares into open bloodshed, as at Spring- field in 1908 and subsequently in East St. Louis and Chicago. In Springfield, on the night of August 15, 1908, two Negroes were held in the county jail, charged with murder and rape, while a mob milled about. When it was rumored that a restaurant owner had supplied the automobile in which the Negroes were taken to Bloom- ington, his restaurant was smashed. The mob then headed for the Negro district, raiding stores en route to get guns, ammunition, axes and other weapons. Sweeping through the black ghetto, the mob drove Negroes from their homes, set fire to a barber shop and lynched its owner, dragged his body through the streets at the end of a rope and then mutilated it. Shortly thereafter they encountered the militia which was forced finally to fire in order to disperse the hoodlums. An uneasy peace prevailed for several days, punctured by the lynching of an 84-year-old Negro within a block of the State House. Casualties of the riot included four whites and two Negroes dead, and 79 persons injured. As in the deep South, the law was unable to convict any of the mobsters. The East St. Louis and Chicago riots followed the great migra- tion of Negroes from the South during the First World War. Some 50,000 came to Chicago and more than 10,000 to East St. Louis, drawn by the promise of high wages, better living conditions, and fairer treatment. Actually many of the Negroes were destined to be used as strikebreakers to curb organized labor's growing power. The Aluminum Ore Company, a subsidiary of the Aluminum Trust, imported hundreds of Negroes to break the strike in its East St. 98 PURSUIT OF FREEDOM Louis plant. The strikers, fighting for better wages and union recog- nition, were angered to see their jobs taken over by imported Ne- groes. In February, 19 17, a mob of young white bravos stoned a flat building in a "contested" neighborhood into which Negroes had just moved. On the night of May 28, 19 17, a mob formed and attacked a number of colored citizens who happened to be on the streets. On the night of July 1, a carload of whites drove through the Negro section, firing indiscriminately. The gang allegedly was out for revenge because a white man had been found dead in the rear of a saloon in the Negro district. The Negroes armed and met a police car which they order to drive on. They then opened fire, killing one policeman and mortally wounding another. The whole city was tense and repercussions were felt in all parts of the country. On July 2, the police power collapsed as Negro and white mobs engaged in a bloody war which ended with 39 Negroes and 8 whites dead, hundreds injured, 312 buildings wholly or partially destroyed, and 200 persons arrested. Eventually 11 Negroes and 10 whites went to prison. The Chicago riots of 19 19 grew out of the acute housing shortage for Negroes. The old colored ghetto had extended from Twelfth Street to Thirty-Ninth Street between Wentworth and Cottage Grove Avenues. Thousands of new war workers brought north by industry overswept these narrow confines. In the 19 17-21 period, an average of one bombing every 20 days greeted this expansion of the Negro population, with an aggregate property damage of $100,000. On May 27, 19 19, when a Negro requested service in a saloon at Fifty-fifth and South State Streets, he was kicked through the doorway by a member of a white gang that produced revolvers and beat him. The gang was said to be part of Ragen's Colts, an "athletic" club identified with numerous lawless acts. On the night of June 21, gangs of white hoodlums wantonly murdered two Ne- groes. Notices soon appeared along Garfield Boulevard and ad- joining streets to the effect that "we'll get the niggers July 4." The riot finally came on Sunday afternoon, July 27. A record heat wave had driven many Negro and white bathers to the Twenty- ninth Street beach. Four Negroes crossed the tacitJy-understood segregation line and were ordered away by white people. They left, but other Negroes followed. A brisk exchange of stones ensued. During the battle, Eugene Williams, a seventeen-year-old Negro boy, swam into the white section and clung to a floating railroad FREEDOM WITHOUT EQUALITY 99 tie as the flying missiles hit the water all about him. As a white boy swam toward him, he released the tie, tried to swim but went down. Both sides in the feud joined in a futile attempt to reach him. On shore an unsubstantiated rumor spread that he had been hit by a stone. Some colored bathers asked a policeman to arrest a white man they accused of throwing the stone. The officer refused. The Negroes began to gather. When the policeman arrested a Negro on complaint of a white man, he was mobbed. The riot was on. During the afternoon, four whites were beaten, five were stabbed, and one was shot. That night, white gangs from the Southwest Side went on a rampage, beating up twenty-seven Negroes, stabbing seven, and shooting four. Monday evening, Negro workmen, unarmed and unsuspecting, were attacked by white mobs as they returned from work. In these clashes four Negroes and one white man were killed, and thirty Negroes severely beaten. An Italian peddler and a white laundry- man were stabbed to death by Negroes. A Negro mob demonstrated in front of Provident Hospital, which harbored two white men who had been injured while raiding up and down State Street. Twenty-three other whites were among the casualties counted for the day. That night, raids of white gangs into the Negro section were repulsed by Negro snipers. But for the interference of the youthful white gangs of the stock- yards district, the riot might not have gone far beyond Sunday's disorders. A grand jury investigating the riot later said of these gangs: The authorities employed to enforce the law should thoroughly investigate clubs and other organizations posing as athletic and social clubs which really are organizations of hoodlums and criminals formed for the purpose of furthering the interest of local politics. In the opinion of this jury many of the crimes committed in the "Black Belt" by whites, and the fires that were started back of the Yards, which, however, were credited to the Negroes, were more than likely the work of the gangs operating on the Southwest Side under the guise of these clubs, and the jury believes that these fires were started for the purpose of inciting race feeling by blaming same on the blacks. These gangs have apparently taken an active part in the race riots, and no arrests of their members have been made as far as this jury is aware. The riot continued for thirteen days. On August 8, Chicago settled down to statistics and investigation. The casualty list in- cluded 38 killed, 537 injured, and approximately 1,000 left home- less and destitute through the wrecking and burning of buildings. ioo PURSUIT OF FREEDOM Of 229 persons araigned on criminal charges, 154 were Negroes and 75 whites. According to the State's Attorney's office, 81 indict- ments were returned against Negroes and 47 against whites. Of 520 injured persons whose race was known, 342 were Negroes and 178 whites. The grand jury denounced the action of the State's Attorney's office in presenting to it an over-balance of cases against Negroes, in these words: This jury has no apology to offer for its attitude with reference to re- questing the state's attorney to supply it with information of crimes perpe- trated by whites against blacks before considering further evidence against blacks. This attitude gave rise to the reports in the press that this grand jury "had gone on a strike." As a matter of fact, its position was merely a suspension of hearing further cases of crimes committed by blacks against whites until the state's attorney submitted evidence concerning the various crimes committed by whites against blacks. The reason for this attitude arose from a sense of justice on the part of this jury. It is the opinion of this jury that the colored people suffered more at the hands of the white hoodlums than the white people suffered at the hands of the black hoodlums. Notwithstanding this fact, the cases presented to this jury against the blacks far outnumber those against the whites. State's Attorney Maclay Hoyne, in testifying before a Committee on Race Relations appointed by Gov. Frank O. Lowden, said: There is no doubt that a great many police officers were grossly unfair in making arrests. They shut their eyes to offenses committed by white men while they were very vigorous in getting all the colored men they could get. The coroner's jury, reporting on November 3, 19 19, also took the police to task, stating that they had failed to make arrests impartially. The state militia, mobilized on Monday, July 28, was not called for duty until Wednesday, July 30. Between five and six thousand troops served in the riot zone. They were of good character, well- disciplined, and officered by men who understood their duty. From the moment the troops entered the South Side, confidence in law enforcement returned. Except for a few clashes with West Side gangs, the soldiers had little trouble. Citizens of both races joined to restore peace and alleviate suffer- ing. The packing house companies opened pay stations within the Black Belt, a measure which allayed the fears of local merchants that their stores might be looted by payless Negroes. Labor unions rallied their members in a stand against race prejudice. The Red Cross, the Chicago Urban League, the Wabash Avenue (Negro) branch of the Y.M.C.A., and the churches worked for a return to normal life and a betterment of race relations. FREEDOM WITHOUT EQUALITY 101 From 1919 to 1928, the breach torn by the riots was healed and relations between Negroes and whites were resumed. Property purchases of Negro business and professional men led the way, and colored families were, by 1928, living as far south as Sixtieth Street, though organizations of white property owners contested every advance. In 1928, the Woodlawn Property Owners' Association drew up a pact to bar Negroes for twenty years from the area bounded by South Park Way, Cottage Grove Avenue, Sixtieth and Sixty-third Streets. In this restrictive covenant a Negro was defined as any person . . . "having one-eighth or more of Negro blood, or having appreciable admixture of Negro blood, and every person who is what is commonly known as a colored person." Signers of the agreement were under obligation not to sell, lease, rent, give, or permit occupation or use of their property to or by Negroes. An exception was made in the case of Negro janitors, house servants, and chauffeurs, who were permitted to use such property during their term of employment. Ninety-five per cent of the owners had to sign the covenant before it became operative. Early in 1937, Carl A. Hansberry, a Negro business man, defied the Woodlawn Property Owners' Association by successfully nego- tiating the purchase of a building at 6140 Rhodes Avenue. At about the same time Harry H. Pace, prominent Negro attorney and president of the Supreme Liberty Life Insurance Company, pur- chased a building just east of South Park Way on Sixtieth Street. Anna M. Lee, a white signatory of the restrictive covenant, together with the Woodlawn Property Owners' Association, filed suit against Hansberry and Pace for $100,000. When the circuit court ruled in favor of the plaintiffs for want of equity, the defendants carried their fight to the Supreme Court of Illinois, which also upheld the legality of the restrictive covenant, by a vote of six to one, and ordered confiscation of Hansberry's property. In November, 1940, the Supreme Court of the United States reversed the decision but did not hold that restrictive covenants are void. It ruled for Hansberry on a legal technicality, that an agree- ment between two property owners respecting the number of signa- tories to the restrictive covenant agreement is fraudulent. In out- lining the case, Attorney Irving A. Mollison, who with a group of other lawyers represented the Negro, said: "The verdict which dismissed the complaint is gratifying, since it was feared that Circuit Judge George F. Bristow, who rendered the original decision, must 102 PURSUIT OF FREEDOM give the plaintiffs a new trial. This would have required carrying the case to the Supreme Court a second time." The Chicago Title and Trust Company still refuses to give a title without a restrictive clause declaring that Negroes are not to live in or use property in the area concerned except as servants; yet, it is estimated that fully one-third of the area now is occupied by Negro tenants. The fourteenth amendment prohibits a state or city government from establishing a Negro ghetto: but the Supreme Court of the United States once held that property owners may achieve the same end by private agreement. Commenting on the decision in the case of Hansberry vs. Lee, the Nation, on November 23, 1940, wrote: . . . Three covenants are the walls of Chicago's black ghetto, and they have their counterparts in almost every city in the country. Hansberry vs. Lee indicates the lengths to which the courts of a great Northern state were pre- pared to go to uphold these covenants; it also demonstrates how far the United States Supreme Court must still go before it overturns them. During the lean days of the depression in the 1930's, when thou- sands of Chicago families found themselves stranded without means of support other than public relief, many forcibly were evicted by landlords for nonpayment of rent. The Negroes on the South Side were among the hardest hit. Throughout the area considerable re- sentment accrued over discrimination against Negroes in employ- ment and relief. One incident arising from these circumstances had fatal conse- quences. On August 3, 193 1, Melville J. Kollner, white, took three municipal court bailiffs to an apartment house at 50 16 South Dearborn Street to evict Mrs. Diana Gross, a seventy-one year old Negro tenant who owed three months' rent. Before the bailiffs could transfer the woman's belongings to the street, a militant group interfered and attempted to replace the furniture. Police were summoned and a fight followed in which three Negroes were killed, and one Negro and three policemen hurt. At the hearing the next morning, five Negroes and one white man were charged with rioting, unlawful assembly, and vagrancy. A mass meeting in Washington Park at night condemned the police, city officials, and landlords for their alleged responsibility for the conditions which led to the tragedy. Later, at a conference called by Mayor Anton J. Cermak and attended by Negro leaders, police, and city officials, a stay of eviction was ordered. At the same time, steps were taken to extend additional relief in the way of jobs and a larger dole. FREEDOM WITHOUT EQUALITY 103 When the Jane Addams Housing Project was opened in 1937, the Chicago Urban League discovered evidence of racial discrimina- tion in the handling of tenant applications. A letter of protest to the United States Housing Authority brought an investigator from Washington, D. C, who arranged for admission of Negro tenants. Over the protests of A. L. Foster of the Chicago Urban League and other leading citizens, the limited number of Negro families who were accepted were segregated in one building. About a year later Mayor Edward J. Kelly appointed Robert R. Taylor as a commissioner of the Chicago Housing Authority. Upon assuming office, Taylor immediately introduced the following reso- lution, which the commissioners adopted: That applications from Negroes for tenancy in the Jane Addams Project be accepted in the same manner that applications are accepted from white families and that the Secretary be instructed to present the subject matter of the Authority's discussion to the General Housing Manager. Negro children have suffered as gravely as their parents from racial discrimination. Chicago in 1863 decided to set up Jim Crow schools but later abandoned the effort. Although the courts have consistently upheld the right of Negro parents to send their children to any school they wish, in southern Illinois segregated schools are the rule, and in some communities in that section the colored population has been obliged to consent to the maintenance of separate high schools. The Free Schools Act of 1909 expressly forbids segregation on account of color, race or nationality. Yet violations are reported not only from the southern part of the state but in Chicago suburbs. In Morgan Park, a movement to exclude Negroes from the schools, library, field house and other community places was suppressed by the firm action of Mayor Kelly. However, Negro children have often found themselves discriminated against in school activities even when admitted as pupils. One form of discrimination as practised in Chicago relegates most Negro children to a second-rate education. Reflecting the wretch- edly over-crowded housing conditions in the Black Belt are the over-crowded schools in that district. Thousands of Negro children are forced by the two-shift system into almost a caricature of the schooling afforded white children. Discrimination, generally avoided at the University of Chicago, is more apparent at Northwestern University where the administra- tion vetoed an effort of white and Negro students to open a dormi- 104 PURSUIT OF FREEDOM tory on interracial lines, despite the support given the project by the student newspaper. During the last decade, the medical schools of the universities of Illinois, Chicago, and Northwestern, as well as other training centers for physicians, have admitted comparatively few Negro students. Negroes usually are turned down for reasons of low scholarship or racial quota, and an official reluctance often exists to having Negro students serve the resident "clerkship." This "clerkship," so-called, occurs during the last two years in the medical school and involves "wardwalks" and "bedside diagnoses." It is a time when the student doctor, because of courses in surgery, pathology, and obstetrics, must maintain close contact with hospital patients. Negro athletes have won recognition at Illinois, Chicago, and Northwestern. In football and in track events they have achieved outstanding records, holding at one time or another numerous con- ference honors. But beyond that they seldom go, for Negroes are not wanted in intercollegiate competition in basketball, baseball, wrestling, tennis, golf, or swimming. This policy constantly is under fire from student organizations, liberal faculty members, and the Negroes themselves. In 1937 William Bell, Jr., a Negro student at Northwestern, was denied use of the university's beach facilities. His suit against the university, handled by an attorney for the National Association for the Advancement of Colored People, was supported by a group of Evanston ministers, students, professors, and civic leaders of both races, brought together by the Chicago Civil Liberties Committee. A recent illustration of inter-racial co-operation in college campus activities was the participation of Iota Chapter of Kappa Alpha Psi, Negro fraternity, in the Thirtieth Annual Inter fraternity Sing at the University of Chicago in June, 1940. The following year, the fraternity was admitted to membership in the Northwestern Inter- fraternity Council with no restrictions. The subject of social equality came up in a round table chat between Prof. T. V. Smith of the University of Chicago and Walter White, secretary of the National Association for the Advancement of Colored People, held during the summer of 1938 at the First Methodist Church in Evanston. In the course of the discussion, Prof. Smith asked White if he thought the fear of intermarriage on the part of some whites was due to instinctive racial antagonism. The latter replied: "The fact that eighty per cent of colored people have an admixture of white blood shows one of two things j either FREEDOM WITHOUT EQUALITY 105 that there is no instinctive antagonism between the races or that there has come among us some latter day immaculate conception." Since the Boston Massacre of 1770, in which a Negro, Cripus Attucks, laid down his life for the freedom of America, Negroes have responded to the nation's call in time of war. Their reward has been discrimination and segregation in the armed forces. They are not welcome at West Point or Annapolis. Many supposedly combatant Negro troops are assigned to servant duty at the army service schools. In the Reserve Officers Training Corps in schools and colleges, Negro boys are discouraged from taking part, and those who enroll have difficulty in getting reserve commissions. Illinois has no Negroes training in white regiments, but Negroes are segregated in the old Eighth Regiment Armory at South Thirty- fifth Street and Giles Avenue, Chicago. This regiment recently was inducted into federal service and renamed the 184th Field Artillery. The Ninety-ninth Pursuit Squadron was organized to give Negro youths an opportunity to participate in the air corps training program. Though recruits were to have been trained at the Glen- view Aviation Base, they are being trained at the Harlem Airport, where Miss Willa Brown, a Negro, directs a civil aeronautics program. More than 300 Negro pilots are being trained at Chanute Field, Rantoul, for transfer to the Tuskegee Normal and Industrial Insti- tute in Alabama, where an air school for Negroes has been opened. Negro weather forecasters, mechanics, parachute riggers, and groundmen also will be trained at Chanute Field. Until recently, the United States Navy assigned all Negro enlistees to duty as mess attendants, with opportunities for advance- ment to cooks or stewards. In the history of the Naval Academy at Annapolis, only five or six Negroes have gained admittance and none has been graduated. After several heroic acts by Negroes in the Pacific war, Secretary Knox announced that Negroes would be accepted for enlistment in Jim Crow sections of the Navy, under white officers, and a section of the Great Lakes Naval Station was opened to Negro recruits, also under Jim Crow regulations. While hailing the admission of Negroes into the Navy, the Negro press was bitterly resentful of the segregation. The growing shortage of manpower available for the armed forces and for industry gave the colored race their greatest opportunity for advancement since the close of the Civil War, and their leaders prepared for a vigorous fight to obtain equal rights long denied. In 106 PURSUIT OF FREEDOM their campaign they were forced to battle the powerful tradition of racial prejudice prevalent throughout the nation. In general, Negroes have free and equal access to jobs which whites do not want — such as messmen in the Navy, maintenance work in offices, and heavy labor jobs in industry. On April 2, 1941, the Illinois Legislature empowered a com- mittee to go to Washington to protest discrimination against Negroes in the defense program. The House of Representatives followed this action a few weeks later by passing a bill to penalize labor unions which discriminate against Negroes applying for membership. Shortly afterwards Governor D wight H. Green named a Negro to the Illinois Defense Council. The National Association for the Advancement of Colored People, the Chicago Urban League, and the National Negro Congress, which have conducted an unending campaign against discrimination, served as spearheads in the campaign to open factory gates in war industries to colored people. The possibility of a national march on Wash- ington, threatened by Negro organizations in order to dramatize the intolerable discriminations against their people, helped to induce the President in 1941 to appoint a Fair Employment Practices Committee. The Committee named several major Chicago war industries and labor unions as violators of fair employment practices. A general improvement in employment opportunities followed. It was notable, though, that when a new federal public housing pro- gram was made available to Negro war workers, it was difficult to find enough such employees to fill the project, so grave remained the discrimination against employment of Negroes in war industries. Most Illinois governors and judges have afforded Negro de- fendants some form of protection against extradition to the South, whenever there was reasonable doubt concerning their guilt or their opportunity for a fair trial. In 1936, for instance, Sam Bennett, a 56 year old Negro sharecropper, fled from Arkansas when an over- seer with a gun attempted to force him to scab during a cotton strike. Bennett, who had joined his relatives in Chicago, was wanted by Arkansas authorities for assault with intent to kill, because he had grabbed his hunting gun as a defense against the overseer's pistol. After full consideration of the case and its implications, Gov. Henry Horner ruled that for a man to defend himself in his own home without firing a shot or striking a blow was not a crime warranting extradition, that legal technicalities had not been observed by Arkansas, and that it was not certain whether Bennett's rights or person would be safeguarded in that state if he were returned. FREEDOM WITHOUT EQUALITY 107 A recent similar case was that of Romeo Blake, wanted by Georgia authorities on a charge of jumping a $200 bond on a traffic viola- tion in Atlanta. On May 13, 1940, Arthur Evans, a Georgia sheriff, and John Maxwell, the bondsman, appeared at the Forty- eighth Street police station in Chicago and sought the help of Sergeant Thomas Brennan in obtaining Blake's extradition. Upon Brennan's request to see their credentials, they produced member- ship cards in the Georgia Ku Klux Klan. Both men expressed sur- prise that the Klan cards would not take the place of legally drawn extradition papers. Three days afterward, Judge John V. McCor- mick in felony court denied the extradition petition. A striking sequel to this case occurred in July, when Defense Attorney Walter L. McCoy prevented an attempt by the Klansmen to kidnap Blake. In May, 1941, a federal grand jury in Chicago indicted William T. Cunningham and Hamilton McWhorter for violation of the thirteenth amendment, after hearing testimony of Negro witnesses from Ogelthorpe County, Georgia, alleging that they as well as others had been held in that county in peonage. The investigation came about largely through the efforts of Colonel William Henry Huff, Negro attorney and counsel for the Abolish Peonage Com- mittee of America. His suspicions had been aroused when extradi- tion was sought of certain Negroes who were described as fugitives from justice but whom Huff believed to be fugitives from peonage. The Federal Bureau of Investigation and the International Labor Defense aided in bringing attention to the alleged practices. Because a war for the Four Freedoms would turn out to be a mockery if it did not help to free the Negroes in America, the Ne- groes themselves during the course of the war fight more hopefully and courageously than ever before for full political, social, and economic rights. In this they are aided by the expressed opinion of the people of Illinois, as embodied in the Civil Rights Act, by the firm stand of the courts in insisting upon enforcement, and by the more en- lightened attitude of many employers and labor unions. Unions affiliated with the Congress of Industrial Organizations have insisted from the first on equal rights, and many unions in the American Federation of Labor are abandoning "whites-only" constitutions. Gains made in the industrial field are considered by many Negro leaders to be fundamental. If the colored man can gain equality in income with his white brother, they believe that many of the causes which lead to racial antagonism will disappear. The Negro will cease to be feared as a low-wage competitor. His rising standard 108 PURSUIT OF FREEDOM of living will tend to solve automatically many of the vexing race- relations problems which have been based on the Negro's economic inequality. Illinois, despite the blots on her escutcheon, can point to a gen- erally realized political equality which finds Negroes in the Legis- lature, in the Chicago City Council, and in many positions of public trust. The march of the Negro toward full equality seems assured by the insistence of the Negro himself upon such equality, by the growing awareness among white people that racial discrimi- nation boomerangs against the discriminators, and by the increasing realization that democracy demands freedom and equality. CHAPTER VIII RIGHTS OF ALIENS The first Puritan to set foot on American soil was a foreigner, and was doubtless regarded as an undesirable alien by the Indians. Ever since then the alien has been regarded either as the hope of America — when cheap, willing and hardy labor was needed to tame the continent, or a menace. The Statue of Liberty was erected to welcome the alien to a friendly democracy; but under its shadow a notorious concentration camp has existed for decades to eye suspiciously incoming aliens and to shelter, until the next ship sails, outgoing aliens who have been found unworthy of residence in the land of the free. The sentiments inscribed on the Statue welcoming the poor and oppressed to America could well have been inspired by President Washington in 1794 when he urged the American people: . . . humbly and fervently to beseech the Kind Author ... to render this country more and more a safe and propitious asylum for the unfortunate of other countries. 109 no PURSUIT OF FREEDOM The first organized anti-alien agitation under the Republic was growing even as Washington spoke. Many Jeffersonian Demo- cratic societies had sought inspiration in the French Revolution for the liberty, equality and fraternity far from fully achieved in America. The Federalists accused the Jeffersonians not only of harboring an alien philosophy, of seeking to spread subversive ideas from a foreign nation and overthrow the principles of the American Constitution, but of encouraging French Republicans to come over to spread their equalitarian ideas here. It was feared, too, that the Irish were a vast horde of malcontents who would sweep over the new nation. The result was the Alien Act of 1798; a further result, the crushing defeat of the Federalists in 1800. In asking the repeal of the Alien and Sedition Acts, President Jefferson said in his Inaugural: . . . Shall we refuse to the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our fathers arriving in this land? Shall oppressed humanity find no asylum on this globe? The acts were repealed, but they remained the prototype of a kind of oppressive legislation that was revived a century later. Con- gress in 1802 passed a liberal naturalization act which required only that someone of standing in the community take the alien before a federal court to obtain his naturalization. In 18 12 citizenship was accorded to all the inhabitants of Illinois Territory, whether of French or English origin. The state, when it was organized in 1818, extended the suffrage to "all white male inhabitants" over 21 who had resided in Illinois for six months. The Illinois Supreme Court held that the word "inhabitant" meant what it said, and that the suffrage was the right of all residents, whether American citi- zens or not. Illinois bore its share of the brunt of nativist, anti-alien sentiment which culminated in the Know-Nothing party in the 1850's. Activ- ity in this movement had the convenient result that minor politicians could obscure the slavery issues under an anti-alien tirade against the "shanty Irish and the dirty Dutch." In 1855 the Know-Noth- ings elected Levi D. Boone mayor of Chicago and proceeded to make life uncomfortable for the North Side Germans by imposing drastic curbs on their taverns, culminating in the semi-comic Lager Beer Riot. That ended the rule of the Know-Nothings in Chicago and the Sunday closing ban. During the Lincoln Administration, Congress passed an immigra- tion act designed to encourage the settlement of aliens on the free lands of the West. In 1875 Congress passed the first legislation RIGHTS OF ALIENS in dealing with the expulsion or exclusion of immigrants since the ill- fated Alien and Sedition Acts. Only those convicted of crime or guilty or moral turpitude were affected, but in 1882 Congress barred Chinese immigrants and required that Chinese residents have a certificate, on pain of deportation. The Federal Immigration Act of 1 89 1 definitely exempted from exclusion "persons convicted of political offense, even though they may be designated as felony or crime ... by the courts of their native land." An Illinois law of 1887 forbade any alien farm owners to require a tenant to pay taxes. An 1889 act aimed at preventing the hiring of aliens on public works was held unconstitutional by the State Su- preme Court in 1903. In 1897 the legislature ruled that aliens acquiring land must dispose of it within six years. The law is generally regarded as a dead letter. The assassination of President McKinley in 1901 bore fruit in the Exclusion Law of 1903. By then "alien agitators" were being blamed for much of the industrial strife of the period. Labor union- ism was an alien theory imported from Germany and other Euro- pean nations, according to many Congressmen who regarded the open shop as the American way. Radical aliens, they discovered, were nearly always apostles of labor unionism. From this reasoning came the Alien-Anarchist Exclusion Law of 1903, barring from America any person "who disbelieves in or who is opposed to all organized government, or who is a member of or affiliated with any organization entertaining and teaching such disbelief in or opposition to all organized government." The Espionage Act of 1917, as amended in 191 8, brought the interdiction down from theory to practice by providing for deportation of aliens guilty of seditious speech or publication against the Government, the Consti- tution, the military forces, or the military uniform. Internment was provided for aliens at the discretion of the President. Another law, passed in 19 17, extended the ban on preaching overthrow of the government to the advocacy of revolutionary doctrines. The Chicago City Council in December, 1 9 1 7, barred aliens from city-licensed businesses, an ordinance which had to be repealed because it violated treaties with foreign countries. Not satisfied with its anti-alien and sedition laws, Congress in 19 18 provided for the deportation of aliens who were "members of the anarchistic and similar classes" — a convenient catch-all for non-citizen radicals. These laws bore appalling fruit. Thousands of complaints poured in against aliens. Violence was visited on loyal German residents, ii2 PURSUIT OF FREEDOM particularly in downstate areas. By February 25, 19 18, Governor Frank O. Lowden was obliged to declare: Mob rule will not be tolerated in any part of the state, even though such mob rule acts in the name of loyalty to the Government. . . . Those who take the law into their own hands at such a time are helping not our own cause, but that of the enemy. The hysteria mounted until the Prager lynching attracted the attention of the entire nation. Robert Paul Prager was a socialist born in Dresden, Germany. He had come to America in 1905, and had taken out his first citizenship papers. When the United States entered the first World War, Prager volunteered for service with the United States Navy which rejected him because he failed to meet the physical requirements. While working as a coal miner in Maryville, Prager addressed a group of miners on the subject of socialism on April 4, 191 8. Threats against his life, as a result of his speech, caused him to return to his home in Collinsville. Here an angry mob collected, stormed his house, and dragged him through the streets, forcing him to wave an American flag. The police rescued him and locked him up in a cell in the city hall. Meanwhile, the scope of the mob's anger had swept past the original incitement, and men joined it who did not know of Prager nor what he had done. Soon the mob overpowered the police force of four, entered the building, and seized Prager. In a newspaper report published two days later, Dr. John Henry Siegel, mayor of Collinsville, described the mob which was marching Prager off as follows: Mob leaders are slick. They had two little boys of 9 or 10 years of age carrying American flags leading the lynch mob parade. When I made su- preme efforts to induce the mob to disband, one of the mob leaders stepped up to me, and, pointing to the flags held up the two little ones, in a warning voice declared: "Mr. Mayor, we dare you to defy that flag." This hint was sufficient for me. I felt that I could not let the mob laise the cry of disloyalty or pro-Germanism against me. After marching Prager through the town, the procession moved forward on the highway leading to St. Louis. Each time a car was met the parade halted and Prager was forced to sing and kiss the flag. About a mile west of town the lynchers came to a high tree. There they hanged Prager. The German government, through the Swiss legation, offered to pay Prager's funeral expenses. Thereupon, the State of Illinois presented to the Swiss Minister in Washington a bill for $197, an RIGHTS OF ALIENS 113 action which brought a sharp note of reproof from Secretary of State Lansing to Governor Lowden. When stories of the lynching appeared in newspapers, indignant protests came from all parts of the country. Governor Lowden an- nounced at once his determination to have the guilty ones punished and threatened officials in southwestern Illinois with martial law if they permitted a recurrence of mob violence. He declared: The action of the mob at Collinsville was as much an assault upon the principle of democracy as the treasonable practices with which Prager was charged, even if that charge was true. . . . Patriotism is a thing of such fine and pure material that it can not be made the cloak for any crime. . . . The loyalty of the citizen in this crisis is measured, not alone by his efforts to defeat the enemy, but equally by his efforts to maintain law and order at home. The Prager case brought the problem of anti-German feeling to a head in the national government. President Woodrow Wilson issued a statement to the effect that mob violence must stop. Officials of the Department of Justice denounced the crime. Other national leaders, however, blamed instances of mob violence on the inade- quacy of disloyalty laws, and urged the immediate passage of pending legislation. May 16 Congress passed a stringent amend- ment to the Espionage Act of 191 7. Trial of eleven members of the mob which lynched Prager began May 13, 191 8, in the Madison County Circuit Court. Local preju- dice necessitated the examination of 700 talesmen before a jury was selected. J. M. Bandy, attorney for the defense, announced that he would plead "patriotic murder." Pointing to the definition of murder in the Illinois statutes (". . . the unlawful killing of a human being within the peace of the people and with malice aforethought . . ."), he declared that Prager had been a German spy and therefore not "within the peace of the people." Judge Louis Bernreuter's final instructions to the jury included the following statement: Whatever Prager's nationality, whatever his offense, it was murder none- theless when he was taken from the hands of peace officers and lynched. The jury required twenty-five minutes to bring in a verdict of not guilty. They were greeted with cheering and clapping. A farmer of Poag shouted from the jury box: "Well, I guess nobody can say we aren't loyal now." And, waving to the defendants, who all through the trial had worn red-white-and-blue ribbons, he con- tinued: "We've done justice of the right sort for Madison County." ii4 PURSUIT OF FREEDOM The result of the trial caused widespread editorial criticism and brought a protest from the German government. Embarrassed by the decision and the damaging use made of it by Germany, Presi- dent Wilson issued a formal proclamation which declared: There have been many lynchings, and every one has been a blow at the heart of ordered law and humane justice. ... I can never accept any man as a champion of liberty either for ourselves or for the world who does not reverence and obey the laws of our own beloved land, whose laws we our- selves have made. He has adopted the standards of the enemies of his country whom he affects to despise. The end of the first World War brought a reaction against large- scale immigration and demands for restriction. Under the sanction of federal laws, the Department of Justice, aided by countless immi- gration inspectors, began a series of raids on foreigners, later called the "Palmer raids" after the Attorney General. Aliens were ar- rested, held incommunicado, and subjected to examinations designed to discover whether they were communists or anarchists liable to deportation. After a short period of inertia, liberal citizens over the country protested and finally the raids were discontinued and the harrying of aliens ended. Meanwhile, however, a school for Russian immigrant workers, highly praised by Jane Addams, was raided in Chicago during 1920. Only applied mathematics, mechanical drawing, pattern-work, and automobile mechanics were taught in the school, for, as Miss Addams remarked, "they were so cautious that they did not teach any sort of history or economics." Describing the raid, Miss Addams said: . . . The immigrants were arrested without warrants and put in crowded police stations and in other obtainable places of detention. The automobile school referred to was "carried off bodily," the teachers, the sixty-four pupils, the books and papers; the latter were considered valuable because the algebraic formulas appeared incriminating. According to Attorney Benjamin C. Bachrach* — who defended eighty aliens arrested in Chicago with a view to deportation — not only aliens, but citizens as well, were arrested in the Palmer drives. Aliens who denied membership in radical organizations were freed after being held as long as six days or more; citizens were freed more promptly, usually within twenty-four or forty-eight hours. Although the raids professedly were carried out by authority of warrants issued by the Department of Labor, prisoners sometimes ♦Subsequently Public Defender of Cook County. RIGHTS OF ALIENS 115 were held without warrants for several days, or even weeks. Louis F. Post, Assistant Secretary of Labor, observed that the warrants finally issued were affidavits made by Department of Justice agents charging the aliens with membership in the Communist or Communist Labor parties. This information, according to Post, was obtained through third-degree examinations of the "prisoners by the agents before application for the warrants, and while the aliens for whom the warrants were got were in the unlawful and incommunicado custody of their inquisitors." Only seven of the eighty Chicago prisoners whom Bachrach rep- resented were found to be deportable. Bail originally was set as high as $10,000 in some cases, but in most it was reduced to $1,000. One alien, a mechanic who lived with his family was held in jail from January to March as a member of the Communist Party, because he could not raise $5,000 bail. He was released finally for lack of proof that he was an undesirable alien. Immigration officials at Chicago, according to Post, objected to the "old-time prussianistic procedure which the Department of Justice had deftly managed to impose upon them." Neither Post nor Secretary of Labor Charles F. Wilson approved of the methods used by Attorney General Palmer's agents. Post later was im- peached for his opposition. In his book, The Deportation Deliriums of 1920, he summarized his stand on the issue as follows: A nation devoted to liberty of opinion and freedom of speech cannot deny either right to resident aliens without launching a tendency to deny both rights to citizens also. In 1920 the National Popular Government Leage at Washington, headed by such legal authorities as Felix Frankfurter, Roscoe Pound, Zechariah Chaffee, Jr., Ernst Freund, and Frank P. Walsh, published a Report Upon the Illegal Practices of the United States Department of Justice, which condemned the violations of the constitution committed by the Department of Justice in making its wholesale raids. The authors were "concerned solely with bringing to the attention of the American people the utterly illegal acts which have been committed by those charged with the highest duty of enforcing the laws — acts which have caused widespread suffering and unrest, have struck at the foundations of American free institu- tions, and have brought the name of our country into disrepute." The eminent jurists grouped the illegal acts under six divisions: first, cruel and unusual punishments had been inflicted on both aliens and citizens in the raids, they had been "threatened, beaten with blackjacks, struck with fists, jailed under abominable condi- n6 PURSUIT OF FREEDOM tions, or actually tortured." The employment of "cruel and unusual punishments" was a direct violation of the eighth amendment. Second, "hundreds of citizens and aliens alike have been arrested in wholesale raids, without warrants or pretense of warrants," a violation of the fourth amendment. Third, the same amendment was violated also in the "unreasonable searches and seizures" which followed the Department of Justice alien investigations. Fourth, the use of provocative agents such as had "been familiar in old Russia or Spain," was an un-American method of discovering viola- tions of the law. Fifth, persons had been compelled to be witnesses against themselves — a violation of the fifth amendment; confessions pried from non-citizens through the use of terrorism were later used in deportation proceedings. Finally, the Attorney General had misused his office and caused "a deliberate squandering of funds entrusted to him by Congress." In summary, the authors pointed out the fruitlessness of the Attorney General's campaign: by November 14, 19 19, 60,000 alien and citizen suspects had been listed; prior to January 1, 1920, 263 persons had been deported; 18 more had been deported between January 1 and the time of the lawyers' report, 529 others had been ordered deported, and warrants for 1,547 more had been cancelled by Assistant Secretary of Labor Post, "to whose courageous re- establishment of American Constitutional Law in deportation pro- ceedings are due the attacks that have been made upon him." A phenomenon invariably associated with economic depressions is the growth of anti-alien sentiment. Reaction against large-scale immigration and demands for its restriction at the end of the first World War were coincident with a post-war depression marked by unemployment, serious struggles between capital and labor, and intensified radical activity. It was feared that an unrestricted influx of European immigrants would aggravate America's current prob- lems. The result was the enactment of the Quota Act in May, 1921. Until this time, except for the Chinese, the mentally and physically afflicted, paupers, polygamists, anarchists and other radicals, and persons of immoral character, the United States had pursued a rather friendly policy as regards immigration. The Quota Act, an emergency measure in force between June 3, 192 1, and June 30, 1924, assigned an immigration quota to each European country. Upon its expiration, Congress passed the National Origins Act of 1924, a measure for the permanent regulation of immigration. This, with the act of February 5, 191 7, today governs immigration. Commenting on the intimacy between economic crises and depor- RIGHTS OF ALIENS 117 tation drives against aliens, Oscar Ban, writing in the New Republic during 1935, noted that "the Palmer raids followed closely the 1 9 19 strikes, and the Doak Terror (followed) the crash of 1929." In a single year, 1931, at the depth of the recent depression, Wil- liam N. Doak, Secretary of Labor under President Herbert Hoover, brought about the deportation of 29,861 aliens; whereas in the second year of the Palmer raids only 2,762 aliens were deported. Reporting to Congress in 1936 on the nature of the Doak raids, Daniel W. MacCormack, Commissioner of Immigration, said: The deportation law and the method employed in its enforcement had earned the censure of the courts, the pulpit, the press and the public. ... A record number of deportations was the chief objective and the measure of efficiency. Arrests without warrants in violation of law were not the excep- tion but the rule. Illegal raids on peaceful assemblages and forceful detention of those present, alien and citizen alike, were of frquent occurrence. Aliens were held in jail for many months awaiting completion of their trial. Bonds were set in unjustifiable amounts. In recent years a great deal of legislation has been enacted limit- ing the range of freedom for aliens and curtailing their economic privileges. Illinois legislation of 1939 bars aliens who have not declared their intention to become citizens from the following pur- suits: law, medicine, dentistry, pharmacy, optometry, architecture, veterinary medicine, and chiropody; and from working as regis- tered nurses, insurance agents, brokers, solicitors and company serv- ice representatives, real estate agents, horseshoers, beauty culturists, or barbers. Federal legislation deprives non-citizens of many social security benefits intended to relieve economic distress. The alien is ineligible for Old Age Assistance, for employment on projects of the National Youth Administration, and for enrollment in camps of the Civilian Conservation Corps. Aliens are not eligible for employment under civil service classification. An act of Congress in 1940 provided that aliens shall not be employed in defense industries where they would have access to plans or secret information dealing with the armed forces of the United States. The Alien Registration Act, which became Public Law 670 June 28, 1940, applies equally to both aliens and citizens in its first part (Title 1). This section makes it a crime to counsel disobedience or to interfere with discipline in the army or navy or to advocate the overthrow by force of "any government of the United States." In addition, the act provides for the exclusion of any aliens who at u8 PURSUIT OF FREEDOM any time were members of "the anarchistic and similar classes." It also requires fingerprinting and registration of all aliens in the United States. In Chicago, up to June i, 1941, 254,727 aliens were registered under the Alien Registration Act. The total registration in Illinois was about 3 1 6,000. Many of these are of voting age and some have been in this country a quarter of a century or more. Some actively, though most of them passively, have retained their original citizen- ship. Many are unable to read or write English. Co-operating with the federal government in the general scheme of national defense, the Work Projects Administration has under- taken the task of investigating causes of non-citizenship and of aiding aliens in becoming citizens. Thus far the investigation has indicated that the majority of non-citizena are uninformed. Some have la- bored under the impression that citizenship would mean higher taxes than they now pay, that it would impose upon them a nebulous responsibility, compelling them to perform duties they dreaded or did not want to assume. The war has intensified the alien's difficulties. "Enemy aliens" — those born in Germany, Italy, Japan, and other nations with which America is at war — are subjected to rigorous regulations. The mass evacuation of the Japanese population from the West Coast con- stituted the most vigorous action the nation has ever taken against an alien group and probably involved unconstitutional acts against native-born Japanese who are American citizens. While argument in liberal circles dealt with whether the deportation order was jus- tified against American citizens of Japanese descent, there was almost universal dissent in the same circles to the discrimination which tagged the heels of these citizens as they were herded uselessly into camps instead of being given an opportunity to work: usefully in inland areas. Some of the authorities claimed that public opinion would not tolerate the dispersion of these citizens in inland states, but many believe "public opinion" was the snap judgment of a few officials. The Tolan Congressional committee criticized sharply the handling of the entire deportation proceeding. Many felt it was unfair to single out the Japanese among all the "enemy aliens." Others pointed to hardships imposed on anti-Nazi refugees who were treated exactly as if they were in fact enemies of democracy. Nevertheless, the attitude of the Department of Justice was in most instances exemplary, when compared with the hysteria of 19 17-19. The public was urged to confine its activity to reporting suspicious cases to the Federal Bureau of Investigation. RIGHTS OF ALIENS 119 Some criticism was aroused by the passivity of the F. B. I. and the State Department in the treatment of known fascists, both in accord- ing them visas to enter the country and also in the failure to take prompt action against German and Italian residents active in fascist propaganda. While the F. B. I. was indefatigable in ferreting out aliens who were suspected of sympathy with Sovietism or the Span- ish Republic, aliens who had been noisy in their support of the German, Italian, and Spanish fascist regimes were not considered — until the declaration of war — to come under the provisions of the alien and sedition acts. The American people in general expressed little hostility toward "enemy aliens" long resident in this country who comported them- selves as loyal to this country and were not active in foreign propa- ganda. After Dunkirk a wave of anti-German and anti-Italian feel- ing spread, affecting the jobs of many nationals of the Axis countries, but there was little indication that the public demanded such action. Federal laws bearing against the employment of enemy aliens in vital war industries were interpreted by over-cautious employers to cover many non-war industries, and people with German and Italian names saw their employment opportunities decline. Both the Presi- dent and the Attorney General appealed to employers to lower the bars and make use of all available manpower in factories not engaged definitely in work of a secret military nature. The creation of the United Nations policy, together with the general loyalty of the alien population, may lead in the post-war period to a marked lessening in the anti-alien feeling that has plagued the country at intervals ever since Federalist days. A grow- ing appreciation of the role the recent immigration has played in building up the country and the decline in the alien population may remove the problem from the leading role it has played for so many years. The sobering thought that we are all either aliens or the descendants of aliens can contribute to the growing feeling of tolerance. There will remain however the gnawing problem of our citizenry of Japanese descent. In the post-war period they may pro- vide the touchstone by which to measure tolerance. CHAPTER IX ANTI-SEMITISM Anti-Semitism, an old scourge in Christian lands, has in recent times become the hall mark of reaction. Its virulent outbreak in recent years has been attributed to the frustration of politician and people alike in the face of mass unemployment, poverty, and the threat of war. The Jew has become the scapegoat for a social system which has not satisfied the needs of the masses. Although this type of persecution has never received official sanc- tion of government or of responsible public opinion in Illinois, any more than elsewhere in the United States, the Jews have felt the sting of discrimination here as in other areas. In ordinary times, many a fashionable club has slammed the door in the face of the well-to-do Jew while the factory gate was clanging shut against the poor Jew. In times of economic and political stress, anti-Semitism has become the tool of the demagog. The Jew stands accused of every contradictory charge that can be used to inflame prejudiced minds. Although most Jews, like 120 ANTI-SEMITISM 121 most non-Jews, have to work for a living, they nevertheless are accused of owning the country. Although branded by anti-Semites as an "inferior" race, yet they are embarrassingly superior in many professions. Although more generous in their philanthropy than almost any other group, they are accused of being "close." They are sometimes spurned as "loud," ostentatious, aggressive, acquisi- tive, dishonest — although such human characteristics in other groups seem forgotten for the moment to the purveyor of anti-Semitism. Jews are attacked as pacifists who won't fight ; and attacked also as war-mongers. They are charged with being Communists seeking the overthrow of the government; but they are charged also with being capitalists in control of Wall Street. Why do these accusations persist? One answer may be that to many Americans the Jews still are strangers, to be shown the dis- trust reserved for any minority group. In 1937 there were only 4,770,647 Jews in the United States, or 3.69 per cent of the popu- lation. In Illinois there were 387,330 Jews, or only 4.92 per cent of the population; of these, 363,000 were in Chicago. Many small towns have no Jews at all; in larger cities, great numbers of Chris- tians come into little or no contact with them. After the pogroms in Russia, Poland and Rumania in the i88o's, Jewish immigration to America reached a total of two million in thirty years. A ragged, frightened mass of humanity joined the "terrorized stampede" from eastern Europe. Grasping at the first and simplest means of earning sustenance in a strange land, the men frequently got themselves carts and became peddlers. Thus the Jew became identified with the rag man, and was ridiculed for his broken speech and scorned for his ignoble trade. Prejudice flamed into violence in Chicago in 1905, peak year of the immigration from eastern Europe, when Jews were victimized in a series of street raids by gangs of hoodlums. Early in 1905, Rabbi Abram Glick was killed by one of these gangs. A few months later, the Chicago Record-Herald wrote: Jew-baiting in Chicago must cease, according to a dictum promulgated yesterday by Mayor Harrison and Judge Mack. The mayor sent notices to police magistrates . . . that hereafter they are to show no leniency to hood- lums who attack peddlers . . . "The Jew-baiter must go. We are not living in Russia," said Judge Mack. . . . Through the combined efforts of Jewish leaders and local authori- ties, the gang warfare was quashed. The winter of 1907-08 was one of depression. In Chicago and 122 PURSUIT OF FREEDOM the rest of the state, thousands of workers were idle, cold, and hungry. To devise programs to alleviate the situation there were many meetings of unemployed, liberal, and radical groups. Action of police in breaking up one large demonstration of the unemployed in Chicago resulted in the death of a young Russian immigrant and a wave of anti-Semitism. Lazarus Averbuch had left Russia after the Kisheneff massacre, seeking the freedom of America. After witnessing the breaking up of the meeting of the unemployed, in which he himself, according to one authority, was clubbed by the police, young Averbuch became overwrought by what seemed to him a travesty of democracy. Feel- ing that the police were more like Czarist Cossacks, he went to the home of Chief of Police Shippey to lodge a protest. There he was shot and killed. Accounts of the incident do not agree as to who did the shooting, the police chief or his son, but the chief gave self- defense as the reason. Professor James Weber Linn, Jane Addams' biographer, asserts, however, that Averbuch was unarmed. Writing of the affair at the time, Jane Addams, head of Hull House, charged that when Averbuch's identity as an immigrant Russian Jew became known, and when newspaper articles took up Chief of Police Shippey's unsubstantiated assertion that he was an anarchist, the Russian Jewish colony of Chicago's West Side became the target of police abuse and lawlessness. Police ransacked all the printing offices they could find in the colony; they raided a restaurant because it supplied food at cost to the unemployed; they seized and carried away books, including volumes of Shakespeare; they used third degree methods for four days on Olga Averbuch, sister of Lazarus, in an effort to extort a confession that her brother had killed three persons. As a result of the treatment of the Averbuch affair by press and police, anti-Semitism spread over the city: "School children were hooted and stoned upon the streets. Two inoffensive young people returning from their work upon the street cars were treated with utmost contempt. One young man was obliged to leave a dental college because of the persecution of his fellow students. . . . Fear- ful of a serious outbreak, the Jewish colony of the Hull House area appealed to Jane Addams, who, in turn, called on Harold L. Ickes, then a young lawyer, to assist in protecting the people. Miss Addams and Attorney Ickes, working together, "composed the panic on both sides." Anti-Semitism, latent in the years immediately following, showing only sporadically in unpleasant incidents, again burst into the open ANTI-SEMITISM 123 after the first World War when propaganda of hatred was spread by the Ku Klux Klan and Henry Ford. Fortune magazine recently wrote of this period: ... in the atmosphere of post-war nationalism and reaction, with the Ku Klux Klan "riding" again (in Fords) at the instigation of a pair of high-powered publicity panjandrums, Jews came in for a share of the Catholic opprobrium. ... In the early twenties there were up to 2,500,000 "Aryan" citizens parading in sheets. Thirty journals, including Henry Ford's Dearborn Independent were in full bray. Serious-minded people were telling each other about the Jewish plot to take over the earth. And copies of the forged Protocols of the Elders of Zion were passing solemnly ard secretly from hand to hand. Illinois, with a large Klan membership, fell under the influence of Klan philosophy and psychology. In addition to preaching the doctrine that Jews control industrial and financial enterprises and suggesting that they "have an eye to some day acquiring control of our government itself," the Klan propaganda held that "the Jew produces nothing." In accusing the Jew of being merely a middle- man, the Klan took no statistical note of the number of Jewish workers, scientists, manufacturers, writers, artists and musicians. The influence of Henry Ford's anti-Semitic campaign was nation- wide. As editor of the Dearborn Independent, official organ of the Ford Motor Company, William J. Cameron (now vice-president of the Ford Company) in 1920 reprinted the forged and completely discredited Protocols of the Learned Elders of Zion, and on them based a long series of violently anti-Semitic articles. This propa- ganda contained statements asserting that the Jews had fomented the first World War, that the Jews controlled American big business, that their control of the motion picture industry was deliberate and calculated to produce pictures to undermine Gentile morals and thereby produce a breakdown of Gentile domination. This third point was linked to the charge that there existed a well-organized plot within international Jewry to seize control of the world, politi- cally as well as financially. In a pamphlet entitled The International Jew: The World's Foremost Problem, the articles from the Dearborn Independent were reprinted for general circulation. The anti-Semitic campaign emanating from Dearborn continued seven years. Then, as a result of a million-dollar libel suit against Henry Ford, the automobile manufacturer on June 30, 1927, issued a public apology and retrac- tion, and withdrew publication of the Dearborn Independent. After Ford's retraction and the exposure by the New York 124 PURSUIT OF FREEDOM World of "the racket behind the Klan," flagrant anti-Semitic propa- ganda abated for a few years in America. Prejudice and extra-legal discrimination, however, continued to operate quietly. Dr. Stephen S. Wise commented as follows on the wide-spread discrimination against Jews in nearly all vocations: "The only pro- fession I know of that does not bar Jews is the rabbinical profession." In teaching, the largest of all professions, there is a smaller per- centage of Jews than in any other field. Despite an anti-discrimina- tion statute in Illinois, Jews find their applications are given little consideration by the school boards of small towns. It is not that small town schools are avowedly anti-Semitic, but rather that, since there are so few Jews in small towns — taken individually — the non-urban schools never have made a practice of having Jewish teachers. Teachers' agencies frequently contribute to discrimination by acceding to the demands of private school and our-of-state em- ployers that applicants state their religious affiliations. Although complete figures on discrimination in professional and business fields are not available, a few surveys covering general office work are significant. Alfred Severson in 1934 made a study of discimination in Chicago offices, and found opposition to the em- ployment of Jews in office work increasing. Offices which refuse to employ any Jews declared that they had a policy of placing no Jews in executive positions ; that Gentiles were better in positions of responsibility; that no "foreign types" were hired; or that the public would not tolerate Jews. Finally, they fell back upon statements that Jews are bold, inconsiderate, anarchistic, radical, bossy, and nonconformist. Of 500 public accountants employed by six Chicago offices during the height of the accounting season, the Bureau on Jewish Employ- ment problems in a recent survey discovered only one Jew. Reasons given by the firms for this personnel policy were that some clients, both Jewish and Gentile, objected to having a Jew audit their books; that Jewish and Gentile accountants on the same staff might not get on well together; and, finally, that Jewish accountants are too eager for promotion and too desirous of going into business for themselves. The Bureau also reported that real estate and mortgage companies hire few Jews in Chicago, and observed that banks and public utili- ties employ a minimum of Jews. It is common knowledge among lawyers that Jews are not readily accepted by the big firms in corporation law. Knowing the prevailing attitude of employers, employment ANTI-SEMITISM 125 agencies are pessimistic about obtaining office jobs for Jews. One Chicago agency admitted that the majority of its clients state they want no Jewish applicants. Another agency stated that in eight years prior to 1934 it placed only twelve to fifteen Jews, while in the same period it placed more than 800 Gentiles in the investment field alone. These figures are particularly interesting when posed against the accusation of the anti-Semite that Jews run Wall Street and the banking system. With reference to economic discrimination against Jews, Rabbi J. X. Cohen, Chairman of the Commission on Economic Problems of the American Jewish Congress, found that in the white-collar labor market, the Jewish worker does not have an equality of oppor- tunity with non- Jewish workers. In examining the employment policies of many large utility, banking and public service institutions, Rabbi Cohen found the application of a general policy of discrimi- nation against Jewish applicants for employment by many large as well as small companies. Some of these concerns employ as many as 6o,000 workers. The problem of discrimination in employment is complicated by the widespread use of such phrases as "Gentiles only" in newspaper help-wanted advertisements. Ethnic origin and religion are thus placed above ability and experience. The Bureau on Jewish Em- ployment Problems has obtained agreements from the metropolitan dailies in Chicago not to accept blind ads specifying Gentiles, Catho- lics, Nordics, Christians, Protestants, or Jews. The papers also agreed to have their ad-takers attempt to persuade employers plac- ing open ads not to use these discriminatory specifications. Yet the campaign has been successful only in changing the phraseology j many advertisers require applicants to "state religion," a phrase that is used for purposes of discrimination. Through the efforts of the Bureau on Jewish Employment Prob- lems, the Illinois State Employment Service has abandoned its former policy of having placement interviewers ask employers their racial, ethnic, nationality, or religious preference. The state employ- ment office now adheres to a policy of referring the best qualified worker to an employer without consideration of former restrictions. This new policy is regarded by the Bureau as an important step in advancing the principle of fair employment practices. The Illinois State Employment Service has still to follow the example of four- teen other states in removing the question on religion from applica- tion blanks. Use of the question permits the Service to accede to requests by insistent employers. 126 PURSUIT OF FREEDOM The war, with its growing shortage of labor, posed the problem of discrimination in acute form. The President, in setting up his Committee on Fair Employment Practice, had in mind the bars not only against Negroes but Jews and other groups as well. The Com- mittee reported discrimination against Jews in several large Chicago factories. Difficulties begin for the Jew when he seeks the special training required for his chosen vocation. Medical schools reject a high proportion of applications for admission from Jewish students. Those who succeed in entering and being graduated experience further trouble when they try to obtain interneships in hospitals. An Illinois statute passed in 1937 made it unlawful for any officer or employee of the state university or normal school to "deny . . . to any person, on account of race, color or religion, the full and equal enjoyment of the accommodations, advantages, facilities or privileges of his office or services or of any property under his care." But quotas restricting Jews are in force at most privately-endowed col- leges. Even at the University of Illinois, a state-controlled institu- tion which cannot stress restriction, Jews are discouraged by the anti-Semitic feeling prevailing on the campus. There is hardly a university where this feeling has not existed. When Vincent Sheean, widely known reporter and author, entered the University of Chicago in 19 19, he joined a fraternity which admitted both Jews and Gentiles and which had as its purpose the promotion of better understanding between the two groups. How- ever, student sentiment against the association of Gentiles and Jews was so strong that Sheean was ostracized by many Gentiles. Conditions have improved somewhat at the University of Chicago since Sheean's day. According to a study of institutions of higher learning, compiled about 1927 by a Jewish intercollegiate student organization and based on questionnaires sent to Jewish students all over the country, the University of Chicago was in the group of colleges and universities in which only moderate anti-Jewish feeling was present. The study listed Northwestern University, the University of Illinois, and Armour Institute as exhibiting pronounced anti- Semitism at that time. The opinion that Jews are a separate race, and as such belong in a special community, persists. Jews have spread out from the origi- nal "ghetto" of the early immigrant period and have settled in all parts of Chicago. Such a diffusion would appear to follow the pattern of assimilation endorsed by Gentiles who condemn the Jew ANTI-SEMITISM 127 for his clannishness; instead, the charge is made that as soon as the Jews move into a neighborhood real estate values depreciate and "there is nothing for the Gentiles to do but move out." In 19 1 9 a state law was passed making it a criminal offense for any lessee, proprietor, manager, superintendent, or other employee of any place of public accommodation (inn, tavern, hotel, restaurant, etc.) to publish anything stipulating that such accommodation will be denied any person on account of class, creed, religion, sect, de- nomination, or nationality, or that the patronage of any person, for the same reasons, is unwelcome. Nevertheless, advertisements of some of the "better" hotels and apartment houses indicate through such phrases as "Restricted Clientele" and "Restricted Tenancy" that Jews are not wanted. Other places do not advertise their dis- crimination, but politely inform the prospective Jewish tenant that they have no vacancies. To the prospective Gentile tenant the man- agers of "restricted" buildings always are eager to stress their policy of discrimination, considering it a good selling-point. A number of private clubs frequented by persons in the higher income brackets long have made a practice of not accepting applica- tions from Jews. Current immigration of refugees from Europe has fed ill-feeling in both Gentile and non-Gentile status quo groups, who believe mistakenly that it is aggravating the unemployment situation. Much of the hostility among Gentiles is directed against Jewish immi- grants because of the false conception that vast numbers of Jews fled to America to avoid persecution in the countries taken over by Hitler. Actually, there was a net immigration of less than 20,000 persons of all nationalities and races in the entire period from 1931 to 1939. The presidential campaign of 1936 brought into sharp focus the problem of anti-Semitism in American social and political life. When it was revealed that certain forces working for the defeat of Presi- dent Franklin D. Roosevelt for a second term were nurturing the idea that the "New Deal" was the "Jew Deal," it became necessary for both candidates to disavow and discredit anti-Semitism. Again, in the campaign of 1940, anti-Semitism crept into the tactics of some of the President's opponents. Anti-Semitism has assumed major proportions in America since the early 1930's. According to one estimate, there were in 1940 more than 500 fascist organizations in America, all anti-Semitic, supported by the contributions of 400,000 people. The Protocols of the Learned Elders of Zion were shown in a 128 PURSUIT OF FREEDOM court procedure in 1935 in Bern, Switzerland, to be a forgery j but they are still being published in several languages by various firms, or organizations throughout the world. A Chicago edition was issued in 1934 by the Patriotic Publishing Company, which is not listed in the telephone directory. The company used a post office box number as an address. The Chicago edition is divided into four parts, one of which consists of a reprint of several articles from the Dearborn Independent of 1920-22. Companion books to the Protocols are The International Jew and The Jewish Question, both reprints of the old Dearborn Inde- pendent articles. When Henry Ford issued his public apology in 1927 he asserted that The International Jew would be withdrawn from circulation, and yet on thousands of copies printed in Spanish and today being distributed throughout Mexico and Central and South America the title is given as Henry Ford — El Judio Inter- nacional. In 1937 Mr. Ford, in a letter to Samuel Untermeyer, promised to take steps to prevent what he claimed was a misuse of his name in connection with this publication. The Protocols and the Jewish Question are contained in the library of, and are distributed by, the Anglo-Saxon Federation of America, a national organization formed in 1925. Important among the anti-Semitic organizations of the United States is the American Vigilant Intelligence Federation, founded in 19 1 9, with headquarters in the Tribune Tower, in Chicago. This organization was called a "petty racket" by the McCormick-Dick- stein Congressional Committee in 1935. The committee found that Harry Jung, who headed the agency, was distributing the Protocols and maintained contact with William Dudley Pelly of the Silver Shirts, widely known fascist group. Jung was declared to be an inciter of religious prejudice. The Chicago Federation of Labor in 1936 charged that Jung was a "fake anti-communist propagan- dist," and his organization a "notorious racketeering outfit." Jung in 1935 actively sought the passage by the Illinois General Assembly of a teachers' loyalty oath bill. With the advent of the second World War, anti-Semitism in America began to grow both in volume and importance. The country was flooded with leaflets and stickers reading: "I will not go to war to save the British or the Jews," or "Jews with the help of Roose- velt expect every American to do his duty." George Seldes in his newsletter, In Fact, May 20, 1940, recalled the statement made a year earlier by Joseph Goebbels, Nazi Minister of Propaganda and Public Enlightenment: "If ever a new war should break out in ANTI-SEMITISM 129 Europe, then this cry, 'The Jews are the culprits' shall resound through the world." A direct attempt to pin the charge of war-mongering on the Jews occurred in Chicago in June, 1940, when leaflets declaring that "Jews want war for blood profits" and "for revenge on Hitler" were dropped from an airplane. According to Raymond Joseph Healy, ex-Nazi, who wrote an expose of Nazism in Chicago for the Chicago Times, these pamphlets originated with the German-American bund headquarters in Chicago. Concerning the significance of the development of fascism in the economic, political and cultural spheres of the United States, as well as throughout the western world, Pierre van Paassen, war cor- respondent and author said: . . . Totalitarianism recognizes in the Jew, as the bearer of Judaism — that is to say the bearer of a philosophy of life which makes justice the cardinal principle in man's relationship with his fellow — a natural enemy, and rightly so. The Jew must therefore be eliminated, because there can be no room for Judaism in a society based on violence and brute force. He must go. He must be exterminated. For not before the Jew is crushed can the forces of darkness attain the other citadels of humanity — humanism, democracy, and Christianity, the three daughters of Judaism. CHAPTER X ORGANIZED MOB VIOLENCE Bands of robbers, murderers, horse thieves, and counterfeiters infested Illinois, especially the southeastern area, in the early decades of its statehood. These desperadoes preyed upon settlers, and upon travelers over the lonely roads. Taverns were their rendezvous, and in these havens they trapped many a wayfarer. Lacking adequate official protection to cope with the serious situation, the settlers would take the law into their own hands. Self-appointed posses of "Regulators" would comb the countryside, meting out extra-legal punishment to the badmen. Through the years from those early decades to the present, mob violence, of one kind or another, despite highly developed law en- forcement, has spotted the state's history. In the i85o's, when the nativistic "Know-Nothings" briefly held considerable power throughout the country, violence seems to have been directed against Germans and Irish Catholics. Though de- tailed information is lacking, it has been learned that the "Know- 130 ORGANIZED MOB VIOLENCE 131 Nothing" organizations, pledged to keep foreign-born voters from the polls, were instigators of election-day brawls. Mob violence carried on into the Civil War days, when military companies were formed in the North to aid the rebel cause. Pro- fessor Arthur Cole, of the University of Illinois, found these facts bearing upon the situation: "In favorable locations champions were easily found to administer severe thrashings as a rebuke to the anti-war spokesman. Neighbors who more quietly shared the same views left many a loose-tongued critic of the ad- ministration to his own defense when some band of Union regulators brought him to silence by threats and intimidation, if not by physical violence. Vigi- lante committees to hunt out and punish secession sympathizers were organ- ized against the advice of the more level-headed; they soon made free speech a byword, so far as criticism of the government was concerned, and freedom of public assembly an obsolete right." Also, as Professor Cole points out, "Every Democrat who did not openly and actively support the administration and the war was labeled a venomous 'copperhead,' at once a southern sympathizer and a traitor to the Union." Copperheads, according to historians, terrorized individuals and communities. In June, 1863, officers in charge of enrollment under the conscription lav/ were driven from various districts in Fulton County by armed mobs. Government military aid failed to prevent attacks upon the officers, and there were at least two fatal shootings. For three days a mob of 500 men threatened to burn the town of Olney if the enrollment lists were not surrendered. Men were influenced to desert the army, and efforts of troops to arrest them in southern Illinois were blocked by the concealment of the deserters and by the resistance of armed mobs. Guerilla bands in the rural districts of southern Illinois held demonstrations in such urban centers as Charleston, Jacksonville, and Vandalia. In Union County one of these bands assaulted Unionists and destroyed their property. Rebel sympathizers, organized into military drill units, beat and shot adherents of the administration, and drove them from their homes. Edgar and Cole Counties were especially beset. In February, 1864, the town of Paris was threatened with attack by an insurgent band of several hundred men. The siege was dissipated, however, by federal troops. March 28, a bloody clash took place in Charles- ton between Unionists and rebels, resulting in five deaths. Also exerting an anti-war influence was "Knights of the Golden Circle" which ostensibly had been organized to invade Mexico, and 132 PURSUIT OF FREEDOM Americanize and annex it to the United States. At the outset of the war, however, this secret society became a screen for secession sympathizers. To counteract the effectiveness of the Knights, the Unionists organized thir own mysterious political society, the Union League. It was the firm belief of the Union League that the object of its rival organization, which had been re-established as the Ancient Order of American Knights, or the Sons of Liberty, was insurrec- tion and the ultimate establishment of a northwestern confederacy. At the trial of a group of alleged conspirators, who had been arrested in August, 1864, there was testimony to the effect that plans had been made at a conference of representatives from Illinois, Mis- souri, Indiana, and Kentucky, to overthrow the governments of these states and release the rebel prisoners from concentration camps. An attempt by Copperhead leaders and Confederate agents from Canada to release 9,000 Confederate prisoners from Camp Douglas November 8, resulted in the arrest and conviction of several alleged ringleaders. Though the Civil War brought its mob strife, it was not until the Reconstruction Period that the Ku Klux Klan came into exist- ence. Its expressed purposes were to maintain white domination and to defeat the government's plans for reconstruction in the South. Though the Klan operated only in the South in this early period, there were other vigilante groups of a similar nature functioning in the northern states. An outgrowth of the strife created by the Klan was the "William- son County War," which had its origin in a feud between two fami- lies in the early i870's. Lasting two years, it resulted in the death of twenty-seven persons. Not unlike the Klan in their operations were the "White Caps" and "Night Riders," who were active particularly in southern Illi- nois in the closing decades of the nineteenth century. The following items from the Marion Leader , a Williamson County newspaper, of September n, 1890, indicates something of the modus operandi of these groups, as well as the public's attitude : WHITE CAPS ACTIVE IN ELIZABETHTOWN ... a band of White Caps paraded the streets Friday night. They fired a number of shots around the residence of Walter Stodder and attempted to get hold of Lewis Pickering. From there they went to Jim Mosley's and, entering his house, they gave him a number of hard raps with a hickory, in addition to several hard blows with their fists and with a threatening demand for him to go to work they departed. They visited Anderson Hughes' (col- ORGANIZED MOB VIOLENCE 133 ored) domicile, but at the sight of their masks he leaped through the gang and beat it down the street . . . closely followed by the pursuing White Caps. . . . The marshal was aroused and started in pursuit of the regu- lators, but they hunted their holes and escaped. This mode of regulation might be tolerable in rare instances, but there is no occasion for it here and our people should frown it down. Because of the seriousness of the situation, the Illinois General Assembly passed a law to indemnify owners of property damaged by mobs or riots, the statute providing: That whenever any building or other real or personal property . . . shall be destroyed or injured in consequence of any mob or riot composed of twelve or more persons, the city, ... or county . . . shall be liable . . . for three-fourths of the damages sustained. This law also provided that persons whose property is damaged by a mob might take action against the persons composing the mob, and that the city or county sued for damages might, in turn, bring action against them. May 16, 1905, the legislature supplemented the 1887 law with an Act to Suppress Mob Violence, and defined a mob as: . . . Any collection of individuals, five or more in number, assembled for the purpose of offering violence to the person or property of any one supposed to have been guilty of violation of the law, or for the purpose of exercising correctional powers or regulative powers over any person by violence. The statute provided further for the imprisonment of persons composing a mob and guilty of damaging property or inflicting serious injury upon another person "upon the pretense of exercising correctional powers." As amended in 193 1, it also provides that injured persons may recover damages up to $10,000 from the county, park district, or city in which the injury is sustained. More- over, the heirs and dependents of a person lynched by a mob may recover damages up to $10,000 from the county, park disticts, or city in which the lynching occurs. As further protection against violence, another section of the law provides: If any person shall be taken from the hands of a sheriff, or his deputy, having such person in custody, and shall be lynched, it shall be frima facie evidence of failure on the part of the sheriff to do his duty and upon the fact being made to appear to the Governor, he shall publish proclamation declaring the office of such sheriff vacant." . . . It was just before the first World War that mob violence was clothed in a new dress. So-called "athletic" or "social" clubs were 134 PURSUIT OF FREEDOM sponsored by politicians in Chicago, their membership being com- posed of young men, generally between the ages of seventeen and twenty-two, in the "Back of the Yards" district, which adjoins the Negro area on the west. Jane Addams, who for many years had been head of Hull House, appeared before the Chicago Commission on Race Relations during its investigation of the Chicago race riot of 19 19, and pointed out that "the politicians have had a new trick the last few years." She said further: They pay rent . . . for clubs of boys below the voting age. The poli- ticians used to take care of the young voter and the boy nearly a voter, but now he comes down to boys of thirteen and fourteen and fifteen and begins to pay their rent and give them special privileges and keeps the police off when they are gambling. The whole boy problem is very much more mixed up with these — I won't call them gangs, but they are clubs with more or less political affiliations. . . . These boys' organizations indulged in numerous disorderly acts, and played an important part in the clashes between whites and Negroes that preceded the race riot. There were fights over baseball fields, swimming pools, and the right to walk on certain streets. In their attacks upon Negroes, members of these gangs frequently were armed with clubs, brass knuckles, and revolvers. Prominent among the gangs was "Ragen's Colts," which had been sponsored by Frank Ragen, then a member of the Board of Cook County Commissioners. Considering themselves amply protected, the Colts indulged in various acts of violence, including Negro persecution. Five weeks before the Chicago race riot in 19 19, on the night of June 2 1 st, two Negroes were murdered, allegedly by white hoodlums. It was shortly before midnight, according to a report by the Commission on Race Relations, that Sanford Harris, Negro, was walking home behind a man, woman and child, also Negroes, when a group of white youths approached. One said, "Let's get that nigger," directing his epithet at the man in front of Harris. There was no violence at the moment, and Harris began running across a vacant lot toward his home. He had not gone far, however, when he was shot fatally. A woman living nearby, the report continues, seized one of the white youths, who had a pistol in his hand. A plain clothes man appeared, but when the woman demanded that he arrest the boy, he asked how she knew the youth had fired the shot, apparently not having examined the revolver. Another woman who lived near ORGANIZED MOB VIOLENCE 135 the scene informed the policemen investigating the shooting that the gang had hidden under a viaduct. There were no arrests, and it was claimed that none was attempted. That same evening Joseph Robinson, Negro, was attacked by a gang of whites as he walked along Garfield Boulevard. Knife wounds resulted in his death. A number of men were arrested on suspicion but all were released. According to the police captain in the district, there was so much confusion following the incident, with people running in all directions, that it was impossible for anyone to identify the guilty persons. After the Harris and Robinson killings, twenty-four bombs were thrown at Negro residences between July 1 and 27, but no hand- to-hand violence occurred before the outbreak of the rioting on the latter date. Throughout the riot the gangs figured prominently, being held responsible by many for its continuance after the original clash. In the 1920's, with Chicago having recovered from its race riot, the revived Ku Klux Klan, which had added Jews, Catholics, and "alien agitators" to its "taboo" list of Reconstruction days, found in Williamson County fertile soil for its growth. Alleging that prohibition violations were numerous and wide- spread and that these were ignored and even abetted by local officials, Klansmen in the summer of 1923 announced their intention of cleaning up the county. Beyond fiery demonstrations, the largest of which were held under the windows of the sheriff's office, and a few sporadic attempts to arrest alleged violators, there was little activity until S. Glen Young, a professional raider, was imported by the Klan late in the year. Clean-up machinery immediately was set in motion by Young, who claimed to be an ex-prohibition agent. Without the consent of county officials, Young staged two raids in December, 1923, in Williamson County. His second skirmish, on the night of De- cember 22, proved the most productive. Seventy-five persons, found in openly operated liquor spots, along with hundreds taken from homes, dance halls and soft drink parlors, were arrested without issuance of warrants, and jailed in neighboring Franklin County. They were denied bail and held incommunicado. Gunfire injured many in the sudden Klan uprising. About the first of the new year, Young, who with two of his lieutenants, had attacked Paul Corder in the public square, was arrested on a warrant charging him with assault with intent to kill. On the day of the trial, January 8, 1924, Young entered the court- 136 PURSUIT OF FREEDOM room with a rapid-fire gun, and accompanied by an armed body- guard. He soon was acquitted. Contemptuous of legal procedure, Young had made his third raid, again without informing county officials, on the day preceding his trial. Aiding him were 300 special deputies from Chicago under the command of Division Prohibition Agent Gus Simonds, 150 local men, mostly Klan adherents, and Sheriff Mont Owens of Franklin County. Klansmen were deputized for the raid. Those arrested filled the Benton (Franklin County) jail, and 212 pris- oners were sent to Marion. Three companies of the Illinois National Guard were sent to Marion and Herrin the next day, after Sheriff George Galligan of Williamson County had wired Governor Len Small that rioting beyond his control was imminent. The New York World, January 9, 1924, quoted a deputy sheriff as saying that the prohibition agents practically were guilty of mob violence for ignoring the law in making arrests, and that the call for troops was necessitated by their activities rather than those of the citizens. A request that raids by federal prohibition agents continue in the county was made by Reverend E. R. Glotfelty, pastor of the Herrin Methodist Church and spokesman for the "law enforce- ment league." A. O. Boswell, counsel for the Klan and former commander of the local American Legion post, said that "ninety per cent of the law-abiding people, or seventy-five per cent of the entire popula- tion of Williamson County" were behind the Klan. The foreign population of this district was composed largely of Italian Catholics. In Young's raids, the homes of these people were broken into, looted, and burned. Women were mistreated. Re- ligious objects were destroyed. Apparently of the opinion that Italian subjects were being discriminated against because of national- ity and religion, the Italian consul in Chicago conducted an investi- gation. The disturbances died down and the troops were withdrawn January 18. Before their departure, Sheriff Galligan asked for the cooperation of the citizens, who responded by pledging support to him as well as to other county officials. Young and his supporters had succeeded in ousting the entire Herrin police force, replacing it with Klansmen. They also had arrested nearly 1,000 alleged violators of the liquor law. Feb- ruary 8, a protest meeting of raid victims was sponsored in Herrin by the Knights of the Flaming Circle, an anti-Klan organization. ORGANIZED MOB VIOLENCE 137 Sheriff Galligan, opponent of the Klan, addressed the assemblage, admonishing it to let the law take its course. His speech was in- terrupted by the entrance of Chief of Police John Ford and two other officers, all armed with shotguns. In the melee that followed, Deputy Sheriff Layman was shot. The sheriff thereupon arrested the police officers and drove them to Murphysboro (Jackson County) to prevent further violence. That same night, Young's first lieutenant, Constable Caesar Cagle, was shot and killed, allegedly by one of the raid victims. So aroused were the Klansmen that they besieged the hospital to which Layman had been taken, threatening to wreck it if the deputy sheriff was not turned over to them. The hospital became a fortress as gun- shots were exchanged between the Klansmen outside and the deputies inside. Only when units of the Illinois National Guard arrived did the siege end. Meanwhile, with the chief of police in jail in another county, Young proclaimed himself chief, took over the Herrin City Hall, and ordered the arrest of Mayor Anderson, Sheriff Galligan, and the sheriff's deputies, all of whom were spirited out of the county and locked in the Urbana jail. The Klan police officers whom the sheriff had taken to Murphysboro were released and returned to Herrin by Young's deputies. Despite the presence of troops, Herrin was held in almost com- plete control by the Klan. Armed Klansmen patrolled the main thoroughfare, ordering all citizens from the streets. Non-members were not permitted to enter the town, and those residing there were not allowed to leave. In the meantime carloads of Klansmen were arriving. With the situation tense, more troops were sent in, and the atmosphere quieted. Cagle's funeral, the day following, drew an attendance of 5,000 Klansmen, it was reported. The grand jury investigated the occurrences of February 8, and returned ninety-four indictments for offenses ranging from ma- licious mischief to murder. Young was named in fifty of them. All but three or four of the other persons named were Klansmen. Bonds totalling $4,275,000 were posted by the Klansmen, who paraded to the court house in a mile long demonstration, headed by a band. It was claimed that citizens and merchants throughout Williamson County had signed bonds under duress. In March, the Klan upbraided Young, charging he had over- drawn his expense account. His pay was discontinued on the theory that he had fulfilled his contract and it was no longer in force. Sam Stearns, chairman of the county board of supervisors, was 138 PURSUIT OF FREEDOM Cyclops of the Marion Klan, and was one of the leaders who had made the "clean-up" campaign contract with Young. Young threatened the Klan leaders, and on the night of April 15, the country home of Stearns' guard was bombed. Assuming the office of Kleagle of the East St. Louis Klan April 25, Young immediately attacked United States District Attorney W. O. Potter, who lived in Marion. Potter filed charges with the state Klan organization, and, July 16, Young was removed as Kleagle. August 2 Sheriff Galligan and his deputies went to the garage of a Klansman to take possession of the automobile which a man had been driving when killed by members of the organization several months earlier. Upon entering the garage, the officers were met by a barrage of gunfire in which six men were killed outright and one fatally wounded. Klansmen were named as responsible by the coroner's jury, and the grand jury indicted the sheriff, City Judge Bowen, and the state's attorney, among others, for murder. Again it was found necessary to call the militia, and they remained on duty from the first of September until the middle of November. In November, the Klan elected its entire county ticket. The final episode of the Klan's lawless rule in Williamson County took place early in 1925. In a cigar store on Herrin's Main Street, Young, who had lived on contributions from friends since his ex- pulsion from the Klan, met Lige Green, a mine boss. He was railing at Green for laying off some Klansmen, when Deputy Sheriff Ora Thomas stepped up and cautioned the two men to be quiet. Young rejoined with "Shut up!" Two of his men stood at his side, while twenty others, heavily armed, waited in the street. Thomas was alone. What followed was reported in the St. Louis Star: "By, God!" Young yelled, "I'll take care of you right now!" and his hands flashed to his hips. But before Young . . . could reach his pistols . . . Thomas had a six shooter in each hand and was firing. Young had his weapons out, but the deputy shot him down and began firing into the crowd of Young's followers who swarmed into the place from the street. Twenty to one, with no chance for escape, Thomas . . . pumped lead at the howling mob. . . . After the battle the Klansmen paraded the streets of Herrin, openly wear- ing their weapons and shouting that all followers of Sheriff Galligan and Ora Thomas would soon meet the same fate as the men in the cigar stand. No one dared approach the scene of the bloody battle, but when the excitement had died down, Young's body was claimed by his Ku Klux ORGANIZED MOB VIOLENCE 139 Klan followers and Thomas, Warren and Forbes were taken to the Herrin Hospital. Here another riot was narrowly averted when some of the Klansmen threatened to assault Dr. J. T. Black, head of the hospital, for accepting Thomas' body! With the death of Young, the Klan's stranglehold on William- son County was broken. Chicago, too, was concerned for several years with Ku Kluxism but escaped violent repercussions. Following exposure of the Klan in the summer of 1921, the resignation of 18,000 Chicago mem- bers of the organization was reported. January 3, 1923 Chief Justice Michael McKinley of the Criminal Court in impanelling the Cook County grand jury, asked each member individually if he had Klan affiliations, and warned them all that no Klansman could serve. Judge Joseph B. David, at the opening of the 1923 term of the Criminal Court, took the same stand. The two judges based their action on the premise that the Klan membership oath would prevent a member from giving a fair trial to Negroes, Catholics, Jews, and any other persons not white, not gentile, and not native-born. Methodist ministers of Chicago protested the action of Chief Justice McKinley, declaring it to be in the nature of class legislation and "virtually depriving Klans- men of their rights of citizenship." Klan officials came to Chicago to investigate discrimination against their members, and to challenge the right of the city council to order all Klansmen stricken from the payroll. The Federated Press reported January 6, 1923, that E. Y. Clarke, Imperial Giant of the Klan, had announced that Catholics and some Jews henceforth would be accepted into membership. The Klan's new principle, he said, was to bring every Christian white "on the face of the globe" into the order, to "stand united against the numerically superior colored races ... an absolute necessity to the continuation of the white man's rule in the world." A few days later, however, he asserted that the Klan could have nothing in common with the Jewish people. In the middle twenties, the Klan lost most of its influence throughout the country, especially in the North. It rose again in the South in the depths of the depression, about 1932; then once more declined until about 1939. In 1940, its membership and activi- ties measurably increased in northeastern states, and a joint demon- stration was held with the German American Bund in New Jersey. Repressive acts by individual members and posts of the American Ho PURSUIT OF FREEDOM Legion, Illinois Department, have at times brought the Legion under scrutiny. Legionnaires have taken part in occurrences which sometimes amounted to organized mob violence j this has been decried by reliable leadership within the American Legion, and denial of official responsibility on the part of the veterans' organization has sometimes been made. It was in this connection that Walter Wilson, in 1936, published in his brochure on "The American Legion and Civil Liberties" the statement signed by nine members, or former members, of the Legion, from the Departments of New York, Connecticut, Washington (D. C), Texas, and Michigan: We have long looked with considerable distrust upon those tendencies in the Legion which seek to uphold a false concept of Americanism which denies freedom of expression to certain so-called subversive or radical groups and ideas. No line can successfully be drawn between one kind of language and another on public issues. Once any man or body of men set themselves up as censors of what may be tolerated, they assume a power which only public authorities may legally exercise. It is in the interest of those more tolerant and progressive elements within the Legion that we express the hope that this pamphlet will help to counteract what are essentially un-American attitudes, totally unworthy of men who fought for democracy. Mr. Wilson's own findings were summarized in the following quotation: "There are already evident the beginnings of a growing rank and file resistance to the imposition on the Legion of the atti- tude of those at the top." In the light of this summary of the Legion's status in connection with extra-legal activities, the following is presented as factual data: Persons prominent as Legionnaires were in the mob that drove Attorneys Albert Goldman and Joseph Lofton, of Chicago, out of Danville, in 1932, following the trial in which they defended mem- bers of the Decatur Unemployed Council. In 1934, during the demonstrations of the unemployed in Hillsboro and Nokomis, mem- bers of the Legion aided the police in preventing free speech and assembly. In 1938, Attorneys Max Naiman and Joseph Roth, of Chicago, in Westville for the purpose of defending an arrested mem- ber of the American League for Peace and Democracy, were warned by the Danville chief of police to leave town and were threatened by a mob, concerning which incident a deputy sheriff commented: "We . . . don't want outsiders . . . stirring things up. The American Legion here is against them." In 1940 a Harrisburg Legion post resolved that members of the Jehovah's Witnesses should not distribute literature stating their opposition to saluting ORGANIZED MOB VIOLENCE 141 the flag or to bearing arms in national defense, and warned that they should not in the future solicit memberships either in the city of Harrisburg or in any surrounding territory. A report of the American Civil Liberties Union has stated: In a recent questionnaire to correspondents of the Civil Liberties Union throughout the country, the American Legion is named by 85% of them as the most active agent of repression. The activities reported varied from published attacks on individuals and organizations to violent interference with meetings . . . The Legion's Americanism Commission under the direction of H. L. Chaillaux, conducts a nationwide campaign against liberals, radicals and pacifists . . . American Legion acts of mob violence, interference with free speech and assemblage, and their attacks on men and women whose interpretations of "patriotism" differ from the Legion's are numerous. While the national headquarters disclaim responsibility for these acts, in not a single instance has a Legion post or a Legionnaire been reprimanded by the national officials for repressive and unlawful acts. Fortunately, the Second World War has seen no repetition of the mob violence against foreigners which characterized the First. Many of the German and Italian-born population have lived here a large part of their lives, and in many cases sentimental ties with their native lands have been weakened by recent happenings over- seas. Their attitude has been understood by the native citizenry. At the beginning of the war, the United States Attorney General appealed to citizens to refrain from taking the law into their own hands and, instead, to report suspicious aliens to the authorities. This policy has proved successful. The main victims of mob violence in recent years have been the Communists and Jehovah's Witnesses. Communists encountered violence when they attempted to secure signatures on petitions to place their party on the ballot in 1940. As in the case of Jehovah's Witnesses, the violence occurred in downstate areas. Three waves of violence have been encountered in the state's his- tory — in frontier days, after the Civil War, and during the First World War. Whether another wave can be expected after this war, when soldiers — trained in organized violence — return, may depend upon the wisdom with which post-war readjustments are made. FT ■ . . . . ■' ■-.-- <^J '-S- ^mRS^^^^S ifv^i is si _^ < v. [ ^$im ^^ % ^^S&^Mi^ ' , .. ■'/ • \^ 41^ llflp . . . 1 ^ >/%' s \ "■ V>: ! ; ' '"' "' • » : ^ CHAPTER XI UNCONSTITUTIONAL POLICE METHODS John Robinson, a thirty-three-year-old Chicago Negro tempo- rarily employed, had been drinking. On April 2, 1938, he decided to visit a "Spiritualist Healer." Refused admittance by the attend- ant, he hurled a stone through the window and thereupon was ar- rested by Police Officer Fred N. Herman. Robinson resisted arrest and snatched the officer's club. A crowd gathered. Henry McFall, a bystander, offered to retrieve the club, if the policeman would promise not to hit Robinson. Officer Herman promised, but, as soon as he got the club, beat Robinson into unconsciousness. Two members of the crowd took the unconscious Robinson into an adjacent house, where a police squad arrived a few minutes later. While Robinson lay on the floor, Officer Herman kicked him in the side, and Officer John G. Bowen, weighing 250 pounds, stamped and jumped on his chest. The policemen then dragged the still unconscious man down the stairs by the feet and took him to the Maxwell Street police station. 142 UNCONSTITUTIONAL POLICE METHODS 143 April 6, Robinson died in the Cook County Jail Hospital. The Coroner found the cause of death to be traumatic laceration of the liver and stomach. The report was "death accidental" from injuries sustained during an altercation. Officers Herman and Bowen were brought to trial before the Civil Service Commission as the result of the efforts of the Chicago Civil Liberties Committee, the International Labor Defense, the Chicago Defender, and a citizens' committee. The Civil Service Commission found the two policemen guilty of using unwarranted force and violence and discharged them from the department. The Chicago Civil Liberties Committee and a group of private citizens pressed the state's attorney to issue warrants for the policemen on charges of manslaughter. At a grand jury hearing, important evi- dence against the policemen was withheld; and the state's attorney adopted the unusual procedure of introducing all the prospective defense witnesses. The grand jury voted a no-bill to manslaughter charges against the policemen. The use of excessive force at the time of arrest constitutes a usurpation by the police of the punitive function of the courts, a violation of Section 5 (right to trial by jury) and Section 11 (all penalties shall be proportioned to the nature of the offense) of the Bill of Rights in the Constitution of Illinois. Although similar provisions in the federal Bill of Rights have not been extended under the Fourteenth Amendment to apply to state and municipal officers, they are, nevertheless, commonly regarded as applicable. Simply stated, the paradox of the problem is this: the law endows the policeman with no punitive rights, but he may use force. Such force must be no more than is required in order to carry out his duty. The law does not permit him to use disciplinary powers except such as are necessary to prevent the occurrence of a threat- ened crime or to make arrests for specific statutory violations of the criminal code. Ernest Jerome Hopkins, an investigator for the Wickersham Commission on Law Enforcement and Observance, disclosed in his book, Our Lawless Police, that "street brutality was prevalent in . . . Chicago" in 1930-31. The Wickersham Commission reported that assault and battery by the Chicago police was normal, rather than exceptional. That police brutality is not confined to the present day or to Chicago is borne out by an incident that occurred downstate in 1907. The affair resulted in the unusual circumstance of a police official 144 PURSUIT OF FREEDOM attempting to appeal the acquittal of a defendant, in order to clear his own name. John Heister, who had been drinking, alighted from an inter- city car in Marseilles. The chief of police arrested Heister for dis- orderly conduct. Without provocation, the official knocked Heister down with his club and was dragging him toward the police station when bystanders interfered. At the trial, nine witnesses testified to the brutality of the chief of police and Heister was acquitted. The police chief sought to appeal the case, but the appellate court upheld the acquittal, saying: "The evidence is conclusive that he (Heister) was so outrageously and unmercifully treated that any jury would be likely to sympathize with and acquit him . . ." The possession of a badge of authority does not permit a police- man to make arrests, except in certain specifically defined cases. According to Corf us Juris: "No man should be arrested unless he is charged with such a crime as will at least justify holding him to bail when taken . . . nor should an arrest be made merely on sus- picion." The arrest may be made upon a warrant issued by a judge ; it may be made without a warrant, either for a felony known to have been committed by the person to be arrested, or where there is reasonable ground to believe that the person to be arrested has com- mitted a felony, or where a misdemeanor has been committed in the officer's presence. Thus, raids by the police, in which a number of persons are seized without warrants, and the indiscriminate pick- ing up of individuals "on suspicion," are usually illegal. False arrest violates Section 6 (right to security against unreasonable seiz- ure) and Section 2 (no person to be deprived of liberty without due process of law) of the Bill of Rights in the Constitution of Illinois, and also violates the spirit of similar provisions in the Constitution of the United States. Hopkins, in his investigation, found that "false arrest was at its worst in Chicago." Although individual instances of false arrest do not always come to light, because of the anonymity of the indi- viduals and inconspicuousness of the cases, certain conclusions may be drawn from the numbers released after arrest and before trial for lack of evidence. The Wickersham Commission disclosed that in 1926 the Chicago police had made 1 1,251 arrests on felony charges. Of those arrested, 5,745, or 5 1.1 per cent, were released before trial, either by the police or the arraigning magistrate. Hopkins conceded that not all of those released before trial were arrested falsely, but UNCONSTITUTIONAL POLICE METHODS 145 believed that it is reasonable to assume that about one-third of the total arrests were illegal. In his own survey, Hopkins found a total of, 212,426 misde- meanor arrests (exclusive of traffic, health, and other minor viola- tions) in Chicago in 1929 (in New York there were only 105,479). Of these 142,883, or 67.3 per cent, were released by the police or by the police court judge. Often, in response to public outcry for police activity, when gang and criminal activity is rampant, a wholesale round-up of "suspects" is ordered. Commissioner William Russell, who headed the Police Department of Chicago in 1930, issued orders to arrest all sus- picious characters who might conceivably be linked with the gangster murders that were giving the city an unsavory reputation. Hop- kins wrote of this: "Men were 'rounded up' wholesale off the streets 5 in no single case was there any criminal among them of the type that had given Chicago its fame . . . two thousand luck- less unemployed had to serve as convenient cell fodder. All were later released." John H. Alcock, who succeeded Russell as commissioner, recog- nized the evil and in a frank, condemnatory letter ended the prac- tice of false arrest. His letter of January 7, 1931, follows in part: To all Members of the Department: In looking over the figures of arrests and convictions during the past year I note an appalling difference between the number of persons arrested and the number convicted. This is not attributable in any great degree to the lack of cooperation by the prosecuting attorneys, judges, and juries. Anyone familiar with police methods heretofore prevailing knows that the reason for this was largely because most of the arrests were made without judgment or any regard for the sacredness of citizens' rights of liberty. No person should be arrested without good and sufficient reason and he should then be vigorously, intelligently, and fairly prosecuted . . . To correct this situa- tion the following regulations will be strictly observed by all members of the department. The indiscriminate arrest of persons not suspected of a crime, who are able to give a good account of themselves and who are not guilty of any violation of any law or ordinance, will not be tolerated . . . Commanding officers will be held strictly accountable for the enforcement of this order, and they will file charges against any member violating same. The commissioner's order produced an immediate reduction in the number of arrests and resulted in a marked increase in the number of convictions in proportion to arrests. Judge Michael Feinberg, of the Circuit Court, also condemned the practice of false 146 PURSUIT OF FREEDOM arrests, in a statement made in 1938 from the bench. The case that prompted Judge Feinberg's criticism concerned the arrests and beatings to which Joseph Gillespie, a Negro, charged he had been subjected by Police Officer Leslie Finlayson. Gillespie stated that Finlayson told him he would be arrested every time the officer saw him on the street. When an arrest is made in pursuance of a warrant, the detained person must be brought before the court at a stated time or within a reasonable time after arrest. If arrest is made without a warrant, the prisoner may be detained by the police only for such time as may be reasonably necessary to procure a warrant for further deten- tion, or until a preliminary hearing of the charge may be had before a magistrate. The mere fact that the police want time to question the prisoner is not considered by authorities as justification for illegal detention. Arthur Lawton Beeley, a sociologist, who investigated illegal detention in Chicago in 1927, wrote: A not uncommon practice is to detain a suspect or an offender without booking him. Such a practice is, of course, illegal. It is often done in order to ward off counsel, service of the habeas corpus writ, newspaper reporters, etc., until after the police and the public prosecutor have had time to collect the evidence in the case or to extort a confession. Accused persons and suspects are sometimes thus held incommunicado for days. In the process of losing them from lawyers, friends, bondsmen, etc., the police may take such persons to half a dozen different police stations. Not only are accused persons and suspects so handled but sometimes even witnesses, in sensational cases, are taken to newspaper offices, hotels, etc., and there grilled for evidence. Holding prisoners incommunicado, denial of the privilege of the writ of habeas corpus, denial of bail or the requirement of excessive bail, and holding prisoners for an unreasonable period before ap- pearance in court are violations of the state constitution. In his study of illegal detention in Chicago, Hopkins found that: The "losing" of men in station houses was reported as a very common practice by every defense attorney whom I interviewed. One mere boy, arrested on a charge of medium importance, had been "lost" ten days in station houses on the South Side, and claimed to have been beaten up in every place where he was held. Similar cases were too numerous to mention. Chicago police records, however, failed to bear this out; they showed that production in court regularly took place within forty-eight hours after the arrest. On the face of the records, things looked legal enough. The real situation, well corroborated, had been that the records in this respect meant nothing. The names of the arrested persons simply were not placed on the UNCONSTITUTIONAL POLICE METHODS 147 book unless and until the police were ready. Numerous attorneys told of having learned of their client's arrest and having gone to headquarters only to be confronted with a total absence of any record showing that the man was held. After days the name would appear. A judicial condemnation of the practice of detention without booking was made in 1939 by Judge John Gutknecht of the Munici- pal Court of Chicago. Often when unusual newspaper publicity is given a sensational case, suspects are detained in hotel rooms for questioning and grill- ing. In the Alfred "Jake" Lingle case (which concerned the murder of Lingle, a Chicago newspaperman who was involved in the intrigue of the city's gangs) Leo V. Brothers, who was convicted later of Lingle's murder, was held in different hotel rooms for three weeks by men from the state's attorney's office. Brothers was taken into custody on December 21, 193 1, but instead of being arrested and placed in jail, was taken to a loop hotel, from which he later was removed to another hotel. After three weeks of illegal detention in hotel rooms, Brothers was arrested, booked, placed in jail, and allowed to see a lawyer. According to the account Brothers later gave his attorney, he was not beaten or starved while he was in the hotel rooms. He was, instead, "hung up," his hands manacled to the overhead toilet box, his feet to the bathtub legs. For four days, he said, he was kept in this position. Then he was taken down and allowed to sleep — on his back, his hands and feet shackled to the bedposts. For long hours every day he was subjected to intensive questioning. "When I inquired whether the Brothers case was an isolated in- stance," says Hopkins in his study of police methods, "my in- formants laughed. It was an extreme instance as to duration, but it was anything but isolated, as matters had gone." The principal distinguishing feature of the "third degree" is not its name, but its nature. It grows out of faulty police work, out of failure to use proper detecting faculties and facilities. While use of the "third degree" by name may be denied, its identifying char- acteristic, attempted extortion of a confession or pertinent infor- mation by oppressive means, is the rule rather than the exception. Its illegality is set forth in the Fifth Amendment to the Constitu- tion of the United States: "Nor shall any person . . . be compelled in a criminal case to be a witness against himself." Moreover, the "third degree" presumes to judge the guilt or innocence of a sus- pect, and thus usurps the judicial functions of the court. Hopkins 148 PURSUIT OF FREEDOM considers the practice to be "the culminating evil of unlawful police work." Apart from its violation of fundamental principles of personal security, the practice further defies the common law principle that confessions obtained by duress are not admissable as evidence in the course of a trial. And yet, according to Hopkins: "The third degree is our predominating type of trial for crime. It tries more men, acquits more men, in felony cases, than the regular trial courts will ever see." That the third degree is a common practice in Chicago, despite federal and state constitutions and an Illinois statute of 1874 ex- pressly forbidding it, was disclosed by the Wickersham Commission, the findings of which were "corroborated by interviews with a large number of persons, including leading members of the bar and ex- perienced newspaper men; by many writers; and by the Illinois Crime Survey (1929), especially the statements therein by a former state's attorney." The Wickersham Commission found that Chicago's third degree surpassed that of New York in its "fantastic originality," while Hopkins reported: . . . here I found there had been lawless law-enforcement so extreme as to have the look of a sadistic release from the repressions damning police work in other directions . . . The rubber hose had been applied, in some known cases, across the abdo- men instead of the back. Nightsticks had been used upon the shins, hard enough in some instances to cut the flesh to the bone. Tear gas . . . also had been turned to advantage ... In one case, the tear gas was injected into a box placed over the suspect's head and shoulders; acid also was applied to this man's sex organs. An interesting Chicago discovery was that the local telephone book, weigh- ing several pounds, would knock a man down if swung hard enough against his ears, yet would leave no marks, being soft . . . Within the year, a four- teen-year-old boy had been hung head downward out of a window, and a man had been similarly suspended in a room, both at headquarters, and both by steel handcuffs gripping their ankles. In Illinois, the proved use of the third degree frequently has been the basis for reversal by the Supreme Court of Illinois of con- victions by the trial court. (Only a small proportion of cases in- volving third degree, however, are referred to the higher courts. Several factors account for this: the third degree may have been employed without success in the eliciting of a confession, or it may have been used to obtain evidence for the arrest of another person; a confession may have been obtained, but may not have been UNCONSTITUTIONAL POLICE METHODS 149 offered at the trial because of its obvious inadmissibility; the pris- oner may have pleaded guilty after confessing; the trial court may have excluded the confession; the accused may have been acquitted; or finally, even though convicted on a third-degree confession, the accused may not have appealed the case.) One of the earliest of such Supreme Court decisions concerned the case of Reuben Miller, John R. Francis, and others convicted of robbery in 1865. The prosecution presented at the trial a con- fession of guilt by one defendant. According to the witness who elicited the confession, he and eight others went to the home of Francis in Clark County, represented themselves as officers, although they had no warrant or other legal writ, and took him to a nearby woods. There they beat him with a bridle rein, and, when he maintained his innocence, strung him up to a tree. The rope broke twice before he confessed to the crime. The lower court admitted this confession as testimony and con- victed Francis and Miller. On appeal, the Supreme Court in 1866 remanded the case for a new trial, holding that: . . . The rule has long been settled in our law that, whilst a free and voluntary confession of guilt is of the highest order of evidence, one extorted is never received. Unlike the laws of the polished and learned Roman, the cruel provisions of which allowed criminals, and even witnesses in some cases, to be put to torture, for the purpose of forcing a confession, ours, in most commendable contrast, are fashioned in a spirit more just and humane. Prosecutors of the Middle Ages, in attempting to extort infor- mation in the name of the king or the church, were aware of the effectiveness of repetitious questioning. The same practice by the police, whether or not accompanied by physical force, is recognized as a form of the third degree. Maurice Enright, one of the figures of Chicago's underworld who cover up their gangster practices by "muscling into" weak labor unions, was murdered February 3, 1920. Four men were arrested, among them, James Vinci. Taken into custody Wednesday evening, February 11, Vinci was questioned until one o'clock the next morn- ing. After a brief respite, he was grilled constantly until midnight of Thursday, and then sent to a different police station where, on Friday, the same, ceaseless interrogation continued without abate- ment until after midnight. Again sent to another police station and again subjected to grilling, Vinci finally, on the fourth day, made a confession that implicated him in the murder. It was the intro- duction of this confession in the trial that caused the Supreme Court, 150 PURSUIT OF FREEDOM upon appeal of the case, to reverse the lower court's conviction. The Supreme Court recognized the cruelty and illegality of such treat- ment, which is sometimes more harrowing than physical violence, saying: "The repeated questioning by these officers, like the con- stant dropping of water upon a rock, finally wore through Vinci's mental resolution of silence." In the case of James Sweeney, accused of complicity in an affair involving the illegal use of explosives, both protracted questioning and physical violence were used to force a confession. When Sweeney remained adamant in the face of unremitting interroga- tion, he was "shown the goldfish" — which consisted of being dragged around by the hair, beaten with a rubber hose, and hit by the lieutenant, the sergeant, and a patrolman — and was then warned that he would either make a statement or be found out on some prairie. Sweeney's conviction, based upon a confession so obtained, was reversed by the Supreme Court. While in a sick bed, suffering from a broken jaw and several fractured ribs incurred some time earlier in an accident, Azar Holick, of Chicago, was arrested November 21, 1927, for a murder com- mitted in 1926. Holick was questioned for two days ?nd nights, but steadfastly held to his innocence. He was told the police would force him to confess if it took them a year to do it. Holick was tortured into making a confession by having his arms twisted. He then signed a confession which had been prepared for his signature. No evidence was offered by the prosecution to deny these facts. The trial judge, however, allowed the confession in evidence, and Holick was convicted. The Supreme Court, on appeal, reversed the conviction and remanded the case for a new trial. Judicial consideration was given to the anti-social misuse of police power in Chicago in compelling confessions by torture, when the Supreme Court of Illinois handed down its opinion following re- view of the Harvey Rogers case. The court held that the use of torture in extracting confessions was in violation of the criminal law of the state. Harvey Rogers was convicted in the trial court for a robbery committed in Chicago, in 1921. The case was ap- pealed, and the Appellate Court upheld the verdict, despite the fact that third-degree methods had been used to obtain a confession from the defendant. It did so on the basis that there was sufficient other evidence to convict Rogers. In its opinion the Supreme Court maintained that it was neces- sary to go out of its way to condemn the police of Chicago for the UNCONSTITUTIONAL POLICE METHODS 151 "practice of extorting confessions from suspects" by third-degree methods. "I was framed," is an allegation often leveled against the police by convicted defendants. The truth of such a claim often is difficult to prove. Framing usually has its origin outside the police depart- ment of a municipality. Comparatively few cases are initiated by the police; however, in carrying out a machination involving com- mission of a crime such as murder, acts of violence, incitement to riot, defamation of character, and sabotage, the police as officers of the law may become accomplices of the instigators of the frame-up. It is still an open question among many reputable investigators of the Haymarket Riot in Chicago whether or not the riot was framed, whether the connivance was directly or indirectly with some of the police, or was instigated by anarchists who were among those active in the struggle for the eight-hour day. How the cabal affects a "little" man, an ordinary citizen who, by himself, has run against the law, not as a representative of a group whose civil rights are assured, is to be seen in the following story taken from the abstracts of the trial and appellate court briefs of the People of Illinois vs. McKinley Burr of Chicago. Unlike the records in the Haymarket Riot case, those of the Burr trial and appeal — particularly the opinion of the state Supreme Court — speak with decision and finality. Burr, a colored World War veteran, sold newspapers, principally the Daily Worker, the official organ of the Communist Party. On more than one occasion he was warned by the police to stay out of Washington Park with his papers, or the police "will take care of you." Burr walked all day June 28, 1933, with his papers. By evening he had not sold them all, and at about eleven o'clock that night he lay down in the park to rest. He was frightened by sounds coming from the bushes nearby. He arose and walked to a spot where a number of people were sitting, so that if he were attacked, as he feared he was going to be, they would see. Two men came out of the bushes, and Burr started to run. When one of the men said they were policemen, Burr turned around and held up his hands. A bullet from Officer Tim Ryan's gun shot him in the groin. While Burr had been lying on the grass, another colored man, Wilson McKissack, had been held up and robbed of two dollars and twenty-five cents, his assailant, or assailants, firing two shots into the air. The wounded Burr was searched, and, although no gun nor the pocketbook of McKissack was found on his person, he was arrested and taken to a police station. While on the way to 152 PURSUIT OF FREEDOM the station in Officer Ryan's custody, Burr was seen by McKissack, who was in the company of two policemen. Burr was not then accused or identified by the hold-up victim. McKissack remarked to the policemen, at this time, that he would be able to recognize anywhere the man who had robbed him. The case was brought to the attention of Attorney Francis Heisler, who, in consulting the arrest slip in the police-department files, uncovered the following fact. The report made by Officer Ryan the night he arrested Burr, read in part: "While in Wash- ington Park (Burr) was shot by some unknown person, receiving the above injuries." To this had been added, in different hand- writing: "South Park Officer Ryan fired some shots at McKinley Burr after a robbery." Burr was convicted in the Criminal Court of Cook County of the crime of robbery while armed with a gun. The trial was held before the court without a jury. On motion for a new trial, counsel for Burr contended that the evidence did not support the finding of guilty, and that the trial court erred in refus- ing to consider affidavits filed in support of the motion to vacate the judgment and grant a new trial on the ground of newly dis- covered evidence. Counsel argued that the judge admitted in evi- dence irrelevant testimony regarding the political character of the newspaper sold by Burr. The motion for a new trial was denied. New witnesses were found to show that four men had held up McKissack, none of whom was Burr. The case was taken to the Supreme Court, which recognized all the reversible errors and "the inconsistent statements of Ryan" in the matter of identification of Burr as the guilty person. The high court reversed the judgment and remanded the case. When, after surveying the whole field of unlawful police work, the Wickersham Commission in 1931 reported its findings to Presi- dent Hoover, it pointed out the grave danger to democracy arising from unconstitutional police methods, and recommended as the only workable solution strict observance of laws already on the statute books. In introducing the Report on Lawlessness in Law Enforcement, the commission stated: Respect for law, which is the fundamental prerequisite of law observance, hardly can be expected of people in general if the officers charged with enforcement of the law do not set the example of obedience to its precepts. The Commission recommended, as to the third degree, that: Probably the best remedy for this evil would be the enforcement of the rule that every person arrested charged with crime should be forthwith taken UNCONSTITUTIONAL POLICE METHODS 153 before a magistrate, advised of the charge against him, given the right to have counsel and then interrogated by the magistrate. His answers should be recorded and should be admissible in evidence against him in all subse- quent proceedings. If he choose not to answer, it should be permissible for counsel for the prosecution and for the defense, as well as for the trial judge, to comment on his refusal. The existing rule in many jurisdictions which forbids counsel or court to comment on the failure of the accused to testify in his own behalf should be abolished. The Commission's consultants, in a review of third -degree meth- ods in particular cities selected for study because of their size and region, also insisted that the remedy for the third degree already existed in the criminal code. In their material dealing with the problem of unconstitutional police methods in Chicago, they main- tained the law is workable if only it is worked. They found that: Under the Illinois statutes a person arrested without a warrant is to be taken before the nearest magistrate without unnecessary delay. Similar promptness is required by law for arrest under a warrant. In Chicago any person arrested has the right to be brought immediately before the Municipal Court. Continued vigilance by the Chicago Civil Liberties Committee, coupled with the more intelligent direction of the Chicago Police Department under Commissioner Allman, has succeeded in improv- ing the record in recent years. Cases of police brutality have been promptly reported to the Commissioner, and action has often followed. CHAPTER XII RIGHTS OF THE UNEMPLOYED The 1930's saw in the United States a series of great expositions, especially in Chicago, San Francisco, Dallas, and New York; the technics of modern civilization excited the pride of Americans and the wonder of visitors from abroad. Prominent in the expositions in the last half of the decade were displays by the federal government. The theme was conservation of human resources. At the New York Fair, in the exhibit of the Federal Works Agency, a legend read: "Work — The Right of Every American." Back of the phrase lies the American workman's long struggle for the fulfillment of those "inalienable rights" in the Declaration of Independence, though he has looked upon them chiefly as his right to a job. Freedom of speech and assembly, the right to petition for redress of grievances, to organize and to bargain collectively are liberties of all the people of the United States. They are legal liberties, granted and protected by the Constitution and laws. Food, cloth- 154 RIGHTS OF THE UNEMPLOYED 155 ing, shelter, and the right to work are inherent rights of all the people, unspecified as such by laws or by the Constitution, but recog- nized, nevertheless, by common consent. Yet often, when unem- ployed workers have exercised their legally guaranteed rights as tools to ameliorate their position, they have met with opposition and violence and denial of civil liberties. In Illinois, as in other highly industrialized areas, the movement to achieve recognition for the right to work has been a struggle to retain accepted constitutional rights and to realize their larger implications in changing social conditions. As long as the frontier existed and the commonwealth was pre- dominantly agrarian, the problems of unemployment virtually were nonexistent. The population of Illinois, like that of the rest of the country, enjoyed mobility, shifting from one location to another as new lands were opened. Pauperism, never completely unknown, was rare and unprotracted. Although Illinois had enacted poor laws in 18 19 which provided for overseers of the poor, Governor Edward Coles, "in answering a query from New York . . . was happy to be able to remark that in no country had the poor been sufficient in numbers to exercise the statutes." With the passing of the frontier and the gradual industrialization of the Middle West, recurrent panics brought unemployment and poverty so severe as to require municipal attention. In 1857, m a season when food and grain were plentiful, 20,000 Chicago workers and their dependents faced starvation. The jobless and hungry in many other communities of the state suffered similarly. Poor relief was unorganized and inadequate. Throughout the winter the distress of the workers aroused wide- spread sympathy. In Chicago various remedies were proposed, — municipal works, soup kitchens, municipal food stores to distribute goods at cost — but the machinery to make these proposals effective was lacking. Work on the streets at seventy- five cents a day (for two days a week) was made available to a limited number of un- employed. By June the desolate crowds of men who sought this work had become so large that it was "decided to reduce the wage to fifty cents and put one-third more men into the city's service." In the middle seventies, just as a new generation of workers approached maturity, panic struck again. "The hard times are affecting every branch of industry," reported the Chicago Post and Mail February 19, 1875. "Paupers are now buried for $1.45 apiece." Crowds of destitute unemployed were dispersed by the police while begging relief from the Relief and Aid Society. 156 PURSUIT OF FREEDOM In 1893, the year Chicago celebrated its coming of age with the Columbian Exposition, another panic with serious monetary and employment dislocations developed. Factories closed, banks failed, and wages declined. By Labor Day of that year, the economic crisis had become so grave that Governor John P. Altgeld, who, after his pardon of the Haymarket anarchists, had shunned direct contact with labor groups in order to avert charges of bias, altered this policy and delivered a Labor Day address to Chicago workmen. "There seems to be a long dark day ahead of you," Governor Altgeld said. "Let me say that it will be the duty of all public officials to see to it that no man is permitted to starve on the soil of Illinois." Unless labor organized, he warned, it would be "annihilated, for the world gives only when it is obliged to, and respects only those who compel its respect." All through the winter men roamed the streets. At night they crowded the City Hall and the police stations, sleeping on stair- ways, in corners, in the halls, wherever space was open to them. Conditions were unchanged in the spring, but the suffering of that winter gave rise to a movement to obtain federal assistance. Its best known exponent was Jacob Coxey, a business man and reformer from Massillon, Ohio. Under Coxey's leadership unemployed men from all parts of the country planned to assemble slowly, in a swelling march from state to state, and to converge on Washington, to demand what they considered their rights. While "Coxey's Army" was on the march, the Chicago City Council adopted a resolution directing the chief of police to prevent the entrance of the "Commonwealers" into the city. Sympathy and assistance were extended to the army by so many citizens, however, that the resolution was repealed a week later. The Chicago Tribune April 24, 1894, declared editorially: This demagogue [Coxey] is going already too far in his demands, and it should be about time for the government to take the preposterous demands and threats as a sign that patience with the Coxey movement has ceased to be a virtue, and that action must be taken at once to suppress it . . . This early movement for recognition of the rights of the unem- ployed was repelled violently. Just before America's entry into the first World War, when unemployment again grew serious, demonstrations of the jobless in Chicago were more than once broken up by police. An outstanding case was a rally of unemployed at Hull House, Sunday, January 17, 19 15. According to the Rev. Irwin St. John Tucker, writing in the American Socialist, men and women alike RIGHTS OF THE UNEMPLOYED 157 were clubbed, slugged, and shot at by police when they disregarded orders against marching. Twenty-two persons, including Tucker, were arrested, taken to the Desplaines Street station, and packed four and five in a cell. The prisoners were charged with rioting, in violation of a state law, and with unlawful assembly and unlawful parading, in violation of a city ordinance. However, Judge William N. Gemmill of the Criminal Court declared that the police had no right to interfere with a street parade and, furthermore, that it was the police who had violated the law, since the Supreme Court of Illinois time and again had declared unconstitutional the city ordinance giving the superintendent of police or the mayor the right to decide what processions might be held. The present city ordinance requires a permit in writing from the police department, after the police commissioner shall have investigated the group making application and the truth of the statements regarding the purpose of the parade — or outdoor meeting — and shall have deter- mined that it "is not to be held for unlawful purpose, and will not in any manner tend to a breach of the peace, or unnecessarily inter- fere with the public use of the public ways ... or the peace and quiet of the inhabitants thereof." In the period of prosperity which followed the first World War, the unemployed were a submerged portion of the population. Indi- vidual workers, between one and three million of them throughout the nation, were forced to adjust their lives to technological unem- ployment, but such adjustments were too scattered to impress them- selves on the public mind as a national problem. The stock market crash of 1929 brought an end to post-war pros- perity in the United States. Almost a half-million men and women in Illinois were unemployed by the end of 1930. In 193 1, the number doubled; in 1932, almost half the workers in the state were reported jobless by the State Department of Labor. Neither gov- ernment agencies nor private charities were prepared to meet the needs of the thousands of homeless, hungry, and ill-clothed victims of the depression. The findings were published in December, 1932, of an investigating committee including Dr. Graham Taylor and Miss Lea Taylor of Chicago Commons and Dr. James Mullenbach, impartial chairman of the board of labor arbitration of Hart Schaff- ner and Marx: There are several Chicago garbage dumps, some of which are under city supervision and some private. About a dozen places where garbage is dumped were visited by different members of the committee; and in every place where "soft" garbage, such as the remains of food, were found, people 158 PURSUIT OF FREEDOM were reported to be picking it over and eating from it at the dump or taking it home to cook. During the early depression years the unemployed organized into councils, clubs, and neighborhood units. Demonstrations, pro- test meetings, hunger marches, relief-station picketing, and work relief strikes were among their expressions of protest, and the aid of influential persons was enlisted through the formation of citizens' committees. The American Civil Liberties Union, analyzing such activity, found that: It is a matter of common knowledge among relief workers that vigorous demonstrations — so-called "riots" by the unemployed, produce an almost miraculous effect in loosening the public purse-strings. Early in 1933, the unemployed planned a state-wide hunger march to the state capital. More than a thousand relief demon- strators from the Chicago area and Rockford traveled toward Spring- field in a cavalcade of automobiles and trucks. Their purpose was to present in Springfield their demands that relief be increased, that it be given in cash instead of supplies, that the state provide unemployment insurance, and that a moratorium be declared on farm-mortgage foreclosures. The caravan was granted permission to spend the night at a tourist camp eleven miles from Ottawa, on the promise of Karl Lochner, a march leader from Chicago, that no demonstration would take place on the camp site. The next morning Sheriff E. J. Welter arrived with state policemen to inform the marchers that they would not be permitted to continue their journey. They were given two hours to turn back. Lochner is said to have defied this arbitrary order, whereupon fist fights began j they ended when the sheriff and his men threw twenty-five tear gas bombs into the crowd. Lochner and seventeen others were arrested. After the marchers had broken up and started home, Governor Henry Horner announced he would receive twenty dele- gates, chosen by the demonstrators, April 7. Throughout the southern part of the state, police and county officials acted on orders from Springfield to quash the movement. Police used tear gas to turn back another column of marchers near Pana. Martial law was declared at Virden, and all meetings were prohibited. Special squads of Springfield police dispersed a mass meeting of miners at Reservoir Park and arrested one of the local leaders. Marchers in the Rock Island column were turned back after a battle with police. National Guardsmen were mobilized in Spring- RIGHTS OF THE UNEMPLOYED 159 field. Sheriffs of nine counties were instucted by Governor Horner to prevent hunger marches. To demonstrations at relief stations the response was varied, conditioned in part by the temperament and experience of the super- vising social workers. As tension increased, so did fear. Blue coats and brass buttons became familiar adjuncts to the straining relief apparatus. October 6, 1932, a demonstration was organized by the Unem- ployed Council before the Stanford Park Relief Station in Chicago to protest reductions in relief budgets. The demonstration, accord- ing to the Chicago Civil Liberties Committee, was "peaceful and orderly," but no application had been made for a permit. "There was no question of interference with traffic," the Committee reported later. "Yet police cars drove into the assembled crowd of upwards of three hundred people, and the officers attacked those assembled with a great show of violence. In the disorder, an attempt was made to disarm one of the police, who then shot and killed one of the demonstrators." Thirteen persons were arrested and charged v/ith unlawful assembly and disorderly conduct, but later were acquitted. The following month, November 23, 1932, police permission was granted to branches of the Unemployed Council for a demon- station near the Humboldt Park Relief Station in Chicago. The purpose was to protest administrative abuses and inadequate relief distribution at the station. After a crowd of about 300 had gath- ered, several speeches were given and appeals made for 100 volun- teers who were to present the grievances and demands of the group to the relief station. At this point the police announced that the delegation must be limited to 15 or 25. More than 50 people, however, formed in line. Up to the time that 15 of these had passed the police line everything was peaceful; all accounts to this point are in accord. There is, however, disagreement as to what followed. According to sworn testimony of 11 eyewitnesses who did not participate in the demonstration, the police attacked the crowd, club- bing promiscuously. A special bulletin of the Chicago Civil Liber- ties Committee relates that Mrs. Martina Knutsen, sixty years old and partially paralyzed, was struck on the chest and dragged on her knees across the car tracks to the patrol wagon. Mrs. Eva Arkin testified that three policemen knocked her down on top of her four-year-old child, and also struck the child on the back of the neck with a billy. A Mrs. Epstein allegedly was clubbed sense- 160 PURSUIT OF FREEDOM less and left lying in the gutter, her clothes over her head. Another witness testified that, as he approached the meeting place on his way to work, he saw police strike down a woman pushing a baby carriage, that the carriage was overturned, throwing out the baby, and that, then, he himself was clubbed senseless. The police version of the occurrences differed sharply from ac- counts by the witnesses. The Chicago Civil Liberties Committee cooperated in the defense of the six persons arrested on charges of disorderly conduct and inciting to riot. When the prisoners came up for jury trial January 17, 1933, they were found not guilty. On January 27, 1933, the Unemployed Council was granted per- mission by the police department to hold a meeting in an empty lot at Fiftieth Place and Vincennes Avenue, across fhe street from a relief station. About seventy-five persons had gathered when the police officer in attendance brought a chair from the relief station and advised the chairman of the meeting, David Poindexter, to proceed. Scarcely had Poindexter begun to speak when he was advised by the same police officer that he had "said enough." During the brief alterca- tion that followed, while Poindexter was protesting, a hundred or more armed policemen crossed the street from the relief station and from the doorways of neighboring houses to attack the meeting. Young and old, men and women were clubbed indiscriminately in the general melee that followed. A bystander, Delia Page, was knocked to the ground where she lay unconscious. In waiting patrol wagons five Negroes, including Mrs. Page, and one white girl were rushed to the police station. The charges were commission of misdemeanors. The International Labor Defense furnished bail bond of $50 for each person and undertook to defend the case. Postponed four times, the trial finally was set for July 10. Between the second and third postponement, Attorney Francis Heisler was called to the judge's office, where it was proposed that, if Attorney Heisler's clients would agree to plead guilty, the judge would sentence the five Negroes to twenty days each in jail and the white girl to thirty days in jail. The heavier sentence was to be given to the white girl because "she had no business being mixed up with Ne- groes." The proposal was not accepted. An alternate proposal that the defendants waive a jury trial in return for the previously pro- posed sentence was also refused. July 10, when Attorney Heisler appeared with his clients, he was RIGHTS OF THE UNEMPLOYED 161 informed that July 7 the grand jury had indicted the six persons on two counts: conspiracy and assault with intent to kill. Bail bond was set at $5,000 each. At the trial before Judge Francis B. Allegretti, all of the de- fendants were found guilty. The men were sentenced to five years in the state penitentiary and fined $750 each. The women were sentenced to five years in the women's reformatory at Dwight and fined $750 each. Both Negro and white witnesses, including a teacher from Northwestern University, had testified that the police attack on the meeting was unprovoked. Defense Attorneys David Bentall and Ben Meyers immediately appealed the case. In 1934, the Illinois Appellate Court reversed the decision, and the defend- ants were freed. Incidents in which the unemployed were deprived of the exercise of their civil rights were not restricted to Chicago. They occurred also in smaller communities, where the city police force and, indeed, dominant sections of the population lacked sufficient experience with mass unemployment to understand it as a social problem. In such communities suppression of demonstrations was often accompanied by vigilantism, unchecked and unrebuked by the civil authorities. In Danville, the evening of February 26, 1932, a meeting to protest the inadequacies of relief was held in a rented hall. Thir- teen members of the Decatur Unemployed Council came by truck to attend. There was little disorder at the meeting, although the police charged later that speakers made such suggestions as: "We should organize to demand relief from the United Charities. If they refuse, we should take it." After the meeting the Decatur men prepared to drive back to their homes. Discovering that they had become separated from one of their number in returning to their truck, they sent the driver to look for him. Half an hour later the driver was brought back by policemen, who, with drawn guns, surrounded the truck and ar- rested all the occupants. Charges of unlawful assembly were en- tered against them, and bail bond was set at $1,000 each. On March 4, an attempt to hold a protest meeting at Danville's Redden Square was forestalled by 200 or more members of the American Legion, deputized to prevent this and similar meetings. Some of the Legionnaires wore arm bands marked "Legion Special Police" and carried baseball bats and similar weapons. A Decatur delegation was beaten and driven out of town. A few days later, the arrested truck driver was released upon payment of a $100 fine. The case of the twelve other Decatur 162 PURSUIT OF FREEDOM prisoners came up before Judge Harlin Steely, March 15. Lawyers for the defense were Albert Goldman, sent from Chicago by the International Labor Defense, and Joseph B. Lofton, sent by the Chicago Civil Liberties Committee. State's Attorney Elmer Furrow of Vermilion County handled the case for the state. During the trial, Attorney Goldman accused local members of the American Legion of having instigated the arrest of Unemployed Council members. During a recess, D. Leslie Davis, reporter for the Decatur Herald, was assaulted in the courtroom and robbed of his notes and personal papers. He alleged that his protests to the judge and state's attorney were ignored. Davis also stated that he heard threats in the courtroom against the defense attorneys. When Attorneys Goldman and Lofton left the courthouse at the conclusion of the trial, they were surrounded by about thirty men, forced into waiting automobiles, and taken to a room in the Wolford Hotel. The police made no attempt to interfere. At the hotel the papers of the lawyers were examined by their captors. Attorney Lofton demanded to speak with the commander of the local Legion post. After twenty minutes of questioning, the lawyers were put into their car and driven several miles out of town, escorted by about thirty other cars. The cavalcade drew up in a field. While Attorney Lofton was held under guard, Attorney Goldman was beaten with canes and struck in the face. On a near-by highway stood a traffic officer. The lawyers then were told that if ever they returned to Danville, they would not get out alive. "All we did," one Legionnaire later was quoted as saying by a Moline newspaper, "was tell them to drive north and keep on going." Attorney Goldman said he recognized a clerk from the sheriff's office in the crowd. The morning of March 16, the Chicago Civil Liberties Com- mittee and International Labor Defense informed Judge Steely of the kidnapping and intimidation of counsel who had appeared in his court, and asked that those responsible be cited for contempt. The judge stated that, since no violence had been committed in his presence or at the door of his courtroom, he could take no action. In Melrose Park, in the spring of the same year, unemployed workers attempted to hold a similar meeting to discuss relief con- ditions. Although oral permission for the meeting had been granted by the police, a large number of police and other persons, "armed with baseball bats, shot guns, and rifles," prevented the gathering. Investigating this and subsequent incidents in the Melrose Park case, the Chicago Civil Liberties Committee reported: RIGHTS OF THE UNEMPLOYED 163 . . . One of the organizers of the meeting had been singled out by the police and "taken for a ride." He was beaten insensate, his skull fractured, stripped of his clothing, and left by the roadside utterly helpless. Two other men were arrested and beaten in jail, one so severely that his jaws were broken. On May 3, Thomas McKenna . . . secretary of the . . . Civil Liberties Committee, while investigating the above outrages, was kidnapped out of a Melrose Park store and "taken for a ride" by four men, one of whom [was] . . . identified as a police officer off duty at the time. McKenna was severely beaten and kicked on the head and face, and finally thrown into a stream seven miles from where he was kidnapped. Several days later the unemployed rented a hall and called a meeting to protest the events described above. Police and deputy sheriffs barricaded the hall before the hour scheduled for the meet- ing and refused to let anyone enter. An attempt was then made to hold the meeting on a vacant lot at Lake and Twenty-third streets. "Police and other persons armed with baseball bats, hunting rifles, shot guns, pistols, and sub-machine guns, surrounded, searched, and forcibly herded [the unemployed] . . . against a wall." Describ- ing the affair in its May 18, 1932, issue, the New Republic reported that from this point "the police then began to fire with machine guns." Several persons, including a young girl shopping at a store several blocks from the scene of the disorder, were injured by shots. The New Republic also disclosed that, while the story in the eve- ning newspapers quoted the police chief as saying that the firing into the crowd was accidental (a policeman with a machine gun having become confused), the morning paper's version was that "Communists, armed with knives and clubs attacked the police; that the officer with the machine gun was hurled to the ground and fired shots from that position." Fifty-eight persons were arrested, including both demonstrators and numerous persons who were walking toward the meeting place. All were indicted for riot without being given an opportunity to present their testimony or to make statements. When the case came to trial, all were acquitted without the calling of a single defense witness. Representatives of the Civil Liberties Committee later called on the village president, who informed them that under no circum- stances would he allow a group which he suspected to have Com- munist affiliations to hold a meeting in Melrose Park. When re- minded that such action was illegal and contrary to the provisions of the Bill of Rights, he replied that he was not interested in the Constitution. In 1936, precisely the same issues came up in Peoria. August 164 PURSUIT OF FREEDOM 1 8 of that year, the Illinois Workers' Alliance held a meeting in Eckwood Park in defiance of the mayor who had refused a permit, although no city ordinance required one. No sooner had the meet- ing started than a policeman broke through the crowd and arrested one of the speakers. The speaker who took his place was also promptly arrested. A clergyman, overheard by a police officer to remark, "This is a shame," was accorded the same treatment. When a friend of one of the speakers visited the jail to bring food to the prisoners, he also was jailed. In all, five Alliance members were arrested and charged with "being then and there idle and dissolute persons, without gainful occupation, persons commonly known as vagrants." The prisoners later filed affidavits to the effect that they were beaten severely by the police while in custody. The following morning they were brought before Police Magis- trate W. E. Winn. The hearing was private. Demands of the prisoners to communicate with lawyers and witnesses and to be tried by jury were denied. The police magistrate, although he had no authority to commit them without trial by jury or signed jury waivers, found the defendants guilty of vagrancy (one was a student at the University of Illinois and four were residents of Peoria), and sentenced them to a fine of more than $200 each or six months in jail. They were sent to Vandalia to serve their terms. A lawyer for the Chicago Civil Liberties Committee and Attorney Max Naiman, representing the International Labor Defense, were sent to Peoria to investigate the case. Attorney Naiman was denied a copy of the complaint. When he asked questions concerning the prisoners, he was ejected forcibly from the courtroom. The lawyers then went to Springfield and to Vandalia, where they obtained a writ of habeas corpus. Circuit Court Judge Dove of Vandalia issued the writ and, after checking on the errors of the "kangaroo" trial at Peoria, discharged the prisoners. Precedent for the use of the sedition and conspiracy laws in the struggles of the unemployed for relief was set in the Hillsboro- Nokomis case. In the summer of 1934, the Unemployed Councils of Hillsboro and Nokomis protested against the local relief adminis- tration, which, they said, was so corrupt "that names were copied from tombstones and put on the relief lists so that officials could pocket the money." About $8,000 was so diverted, according to the testimony. When the district attorney was petitioned to prose- cute the offenders, he is reported as saying that the frauds involved persons so highly placed that it was too "hot to prosecute." Unemployed Councils brought to light this alleged graft, at RIGHTS OF THE UNEMPLOYED 165 the same time demanding adequate relief and federal unemploy- ment insurance. The city of Hillsboro, "under pressure of business interests," then passed an ordinance reading in part: Whereas, the assemblage of large numbers of persons around public relief headquarters and in other places on the streets of Hillsboro and parades and processions on the streets of the city have threatened the public peace, all such assemblages and parades in the city are hereby prohibited. When the city council refused to rescind the ordinance, the Un- employed Council held a forbidden meeting to test the law. Three men were arrested and trial was set for May 31. The neighboring coal town of Nokomis, meanwhile, had passed a similar ordinance. To protest this action a joint meeting was held May 28 by the Unemployed Councils, the Progressive Miners local, and the International Labor Defense. From this meeting a committee was sent to the mayor to urge repeal of the ordinance. The mayor stated that the city council was then in session and agreed to report the action. At 10:45 P. M., not having heard from the mayor, the people at the meeting voted to march to the city hall; the council was still in session when they arrived. It is charged that the demonstrators then locked the doors of the council chamber and declared that they would not disperse until the ordi- nance was repealed. About 500 demonstrators sang outside the chambers while the council deliberated. When a group of demon- strators entered the council chamber to demand action, friction de- veloped and a woman was struck by a deputy. At 12:15 A. M. the council rescinded the ordinance. May 31, a large delegation of unemployed workers from Noko- mis gathered in Hillsboro to attend the trial of persons arrested for violating the ordinance before it was rescinded. When they assembled on the street before the courthouse, local police, aided by state police, special deputies, and members of the American Legion, prevented by force of numbers any meeting or demonstra- tion. The trial was held not in the courthouse, where it had been scheduled, but in the office of a justice of the peace, a block away. Here entrance was refused even to the defendants' wives and witnesses. Two days later, when the deputy who had struck the woman at the demonstration before the council chambers was on trial for assault, another demonstration took place. To prevent any assem- blage near the courthouse or attendance at the trial, local police, deputies, members of the revived Anti-Horse-Thief Association, and Legionnaires patrolled the streets. The state's attorney refused to allow witnesses against the deputy to testify. The deputy was 166 PURSUIT OF FREEDOM acquitted, and the woman who had been assaulted was arrested and placed under bond. At the conclusion of the trial, the demonstrators scattered and began to return to their homes, but it is said that: Immediately the police and vigilantes began a general attack on the demonstrators, in their homes and on the streets. One leader who had suc- ceeded in getting into the court room was dragged out, beaten and arrested. The leaders were rounded up, and later taken to the county jail at Hillsboro, to await action of the Grand Jury. Eleven were held. The eleven defendants remained two months in ]ail before the grand jury acted. During this time, they were denied visits by anyone but relatives, denied reading matter and proper food, and their mail was censored or withheld. Their attorneys, arriving from Chicago to examine the legal papers, were told by Dr. J. M. Hoyt of Nokomis: "You'll see no papers here. Now get out of town." The lawyers were compelled to leave. The grand jury indicted ten of the eleven men for "conspiracy to do an illegal act," on the basis of the Nokomis incident of May 28. It indicted all eleven for unlawful assembly, on the basis of the Hillsboro incident of May 31. It also indicted all eleven, and four other men, who had not been in the county on either of the dates but had been active in organizing the defense of the eleven, under the sedition statute. The last charge covered fourteen counts, including membership in an organization which advocates the "reformation or overthrow by violence or other unlawful means of the representative form of government as secured by the consti- tutions of the United States and of Illinois," and distributing litera- ture and associating with others for that purpose. The International Labor Defense in Chicago, assisted by the Chicago Civil Liberties Committee, undertook the defense. The American Civil Liberties Union petitioned Governor Henry Horner to investigate the Hillsboro affair, to condemn publicly both vigil- antism and the illegal acts of Montgomery County officials, to cause criminal proceedings to be instituted against the vigilantes and the police officials who denied the demonstrators their civil rights, and to use his office to secure the dismissal of the sedition charge against the defendants. The governor took no action. Bail bond originally was set at $8,000 for each of the de- fendants — who remained in jail until the International Labor De- fense was successful in having the bail reduced to $4,000. Some- time before the date of the trial, the judge and the state's attorney went to Chicago to confer with Defense Attorney David K. Bentall. The result of this conference was that the state's attorney, in De- RIGHTS OF THE UNEMPLOYED 167 cember, 1934, dropped all charges against the defendants and placed a nominal charge of disorderly conduct against them. They were fined a small sum, and even the fine was suspended. Equally serious in its implications was an incident which occurred in Cairo in 1937. During the spring flood of that year, in an effort to stave off the calamity which threatened the city, the Works Prog- ress Administration assigned all able-bodied male relief workers at Cairo to levee jobs. It was not possible during the crisis to observe the routine procedures of the federal agency. At the levees, workers gave twenty-four-hour service — on which it was impossible to keep time sheets. After the crisis had passed, a payroll for 1,800 levee workers was submitted by the mayor to officials of the Works Prog- ress Administration. It was returned for revision downward. A new payroll required further adjustments. Both the City of Cairo and Alexander County were in financial straits and were unable to contribute their share to the relief funds allocated by the Illinois Emergency Relief Commission. Meanwhile the workers remained unpaid, in need, cut off from the relief rolls on the basis of their emergency WPA employment. Representatives of the Illinois Workers' Alliance conferred regularly with relief officials in an effort to alleviate the suffering and otherwise to aid the workers. On April 8, the Alliance was granted permission by the sheriff to hold a mass meeting in the county courthouse. More than 1,500 persons attended this meeting, formulated their grievances, and voted to assemble the next day at the relief office to present demands. The next day the relief station was closed. Discovering this, a group of the demonstrators chiseled the lock on the door of the station, and several hundred entered and began what the Cairo Evening Citizen later described as "a combination sitdown, lay- down, standup, standaround, and sitaround strike." Edward Parker, general organizer for the Workers' Alliance, and other Alliance officials requested County Judge Brantley Kerley to arbitrate the relief strike. This office the judge declined, saying that, since the relief workers had violated the law by breaking into relief head- quarters, he was unable to act as arbitrator. At the station the strikers decided to stand their ground until someone heard their grievances and demands. Before noon a group made a trip to the surplus food depot of the Illinois Emergency Relief Commission and carried away thirty-five cases of canned food. In the afternoon a second group, under the leadership of Edward Parker, went to the depot demanding more food, but were 168 PURSUIT OF FREEDOM denied admittance. A few hours later Parker was removed from the station and placed under arrest, but not without a clash between the arresting officers and outraged strikers. The following day the strikers were evacuated from the relief station by a hundred deputy sheriffs and local police. Removed from the county without a court order, Parker was held incommunicado for almost two weeks, first in Jonesboro and later in Murphysboro. On April 23, Attorney Francis Heisler of Chicago filed a petition for a writ of habeas corpus with Judge John Reid of Marion, acting circuit court judge of Cairo, who deputized Heisler to go to Murphysboro and serve the writ. Heisler returned to Marion and proposed before Judge Reid to file a writ with the Supreme Court of Illinois. Upon advice of the judge, Sheriff Oiler was prevailed upon to produce Parker for a hearing, April 24, in Cairo. At the hearing, State's Attorney M. J. O'Shea pre- sented four charges against Parker, one of inciting to riot and three of assault with intent to kill. The grand jury indicted Parker on six charges, rioting and at- tempted arson having been added to the original ones. During the selection of the jury, Attorney Heisler had cause to suspect a prospective juror named Wagner of over-eagerness to serve and summoned him a second time for questioning. Wagner stoutly denied any connections with the prosecution. Later, however, a spectator at the trial informed Attorney Heisler that Wagner was a duly elected constable of Cairo. Upon proof of this charge, the court granted a mistrial, and the accused men were released and later freed. The unemployed movement, which flared thus into a dramatic, impassioned protest against hunger, died down after 1937, as relief moved off an "emergency" basis into tried and tested channels. With the coming of the defense and later the war industrial pro- gram, the Workers Alliance and other organizations of the unem- ployed disbanded. Whether ever again there would be the vast worklessness that characterized the logo's was a challenge to every person concerned with the preservation of America's traditional civic liberties. The National Resources Planning Board early in 1942 enunciated a new Bill of Rights whose first point was "the right to work, usefully and creatively through the productive years," as part of President Roosevelt's announced purpose of achieving "freedom from want and freedom from fear." Unless such a charter could be put into effect in the post-war RIGHTS OF THE UNEMPLOYED 169 period, the threat lingered over millions that hunger and want would return. In the temper of post-war years a people who had seen that it was possible to employ every able-bodied person might not consent to return to chronic unemployment. The continued existence of time-honored political liberties would then depend on the existence of economic freedom for the masses. ^* IP* 1 -> j J" iHiii ■1 L CHAPTER XIII THE RIGHTS OF LABOR It was almost one hundred and fifty years after the adoption of the Bill of Rights that American labor won a documented place in America's code of freedoms. Enactment in 1935 of the National Labor Relations Act proclaimed for labor the legal right to organize and bargain collectively. Prior to this, the right fo oppose the economic demands of workers with police force and court power often was counterbalanced only by the pressure labor could exert in its own behalf. The very nature of the conflict compelled a division of society into two main groups equally determined to gain opposite ends. This was known as "the conflict between capital and labor." In 1886 Richard T. Ely, near the beginning of his career, wrote: The labor movement treats of the struggle of the masses for existence, and this phase is acquiring new meaning in our own times. A marvelous 170 THE RIGHTS OF LABOR 171 war is now being waged in the heart of modern civilization. Millions are engaged in it. The welfare of humanity depends on its issue. And in 1885 General William T. Sherman, then chief of staff of army, observed: There will soon come an armed contest between capital and labor. They will oppose each other not with shot and shell, gunpowder and cannon. The better classes are tired of the insane howlings of the lower strata, and they mean to stop them. This was said just one year before the Haymarket Riot, which grew out of labor's struggles to win an eight-hour day. In the same period, the Chicago Times, a Democratic paper which had opposed the Lincoln administration during the Civil War, printed an editorial which today might be considered by authorities as incite- ment to violence. The Times said: "Hand grenades should be thrown among those who are striving to obtain higher wages." Modern industry concentrated groups of workers who were in constant conflict with their employers over their fundamental rights and needs. Out of the irreconcilability of that conflict grew the struggle for civil liberties in the sphere of labor relations. In the philosophy of free enterprise, labor was regarded as a commodity. By contrast, labor contended that "Labor is life, it is man himself, inseparable from the laborer." Legislation aimed at, or perverted into, curbing the growth of labor's bargaining power followed the obvious direction pointed by the concept of labor as a commodity. For example, under the terms of the Sherman Anti-Trust Law, striking workers on a picket-line could be considered legally as acting in restraint of trade by urging workers not to enter a struck plant, thus interfering with the flow of commodities. Not until 19 14, when the Clayton Act was passed to correct the abuses of the Sherman Act in labor disputes, did the idea that labor is not a commodity win legislative acknowledgment. Samuel Gompers, then president of the American Federation of Labor, was gratified at the apparent easing of the conflict between property rights and human rights. Labor learned that "men cannot be made free by laws, unless they are in fact free because no man can buy and no man can coerce them." Holding that labor is a commodity was a natural outgrowth of the economic evolution and industrial development of the country, but in latter years this idea was at variance with the civil rights and economic interests of the workers. A committee of the United 1 72 PURSUIT OF FREEDOM States Senate found that interference with labor's right to organize and bargain collectively constituted a dangerous threat to our demo- cratic institutions. After the passing of the frontier in Illinois in 1848, the state entered upon a period of inland development — the construction of waterways and railroads. When the Civil War broke out, huge demands were made upon the state for raw materials and manufac- tured products. Subsequently, coal, the chief factor in power pro- duction, under the impetus of war needs, became known as the "black diamond," a resource in which the commonwealth was rich. The influence of coal on the industrial development of Illinois was of such a profound nature that from the very beginning mine labor has played an important part in the trend of labor relations in the state and in legislation dealing with hours, wages, and work- men's compensation. In 1863, after a series of strikes in the La Salle coal mines, the Illinois General Assembly enacted what was popularly known as the "La Salle Black Law," because it placed disabilities upon the worker comparable to those placed by the Illinois "Black Laws" of 1819-53 upon the Negro. In effect, the act outlawed strikes, picketing, and the persuasion of working employees to go on strike. The statute has never been repealed. In the summer of 1877 there occurred in Illinois a nationally important labor crisis. The impact of the panic of 1873 threw hundreds of thousands of workers out of jobs and generally lowered living standards, affecting even the employed whose wages steadily were lowered. When the Baltimore and Ohio Railroad announced a 10 per cent cut in all wages exceeding $1.00 a day, spontaneous strikes spread rapidly over the country. By July 24 the strike wave had reached Chicago, where a general transportation walkout developed. On July 25 President Rutherford B. Hayes defined interference with trains, destruction of property, and any riotous conduct as rebellion against the United States government. He warned that he would declare martial law throughout the land and occupy all disturbed territories with federal troops. The next day there were many riots in the industrial sections of the city. Hoodlums and thugs found the city's turbulence an ex- cellent screen for criminal activities. A police attack upon the strikers was beaten back with stones and bricks by a mob of 10,000. By July 28, the Chicago Times listed the casualties as follows: "rioters killed, 18; fatally wounded, 16; seriously wounded, 16; . . . officers killed, i; wounded, 10 . . ." THE RIGHTS OF LABOR 173 Federal troops were ordered to Chicago, and on July 28 the first freight train under military protection during a labor dispute lum- bered out of the city. The presence of the regular army in Chicago broke the morale of the strikers. Finally, the action of the federal government had the effect of initiating a wave of anti-labor feeling. Attacks upon labor organizations subsequently became common. Nevertheless, one result of the strikes was the strengthening, through realization of common ends, of the railroad brotherhoods. Also, trades councils, unions, and other central labor bodies came into existence and multiplied rapidly in the principal cities. The widespread anti-labor sentiment of the period was reflected in the legislation of the period, such as the Railroad Obstruction Laws enacted by the Illinois General Assembly. These prohibited any locomotive engineer, in furtherance of any combination or agree- ment, from willfully and maliciously abandoning his locomotive at any point other than its regular destination; they also prohibited any person or combination of persons from impeding the regular operation of any railroad company or any other business operations in Illinois. At this time Chicago was the center of the militant labor move- ment. Thus, while Eight-Hour Leagues had been formed in most of the major cities and huge labor rallies were held around the issue of an eight-hour day, "in Chicago the agitation was most in- tense." It was labor's struggle for the eight-hour day that led to the Haymarket tragedy of 1886. The bomb that exploded in Haymarket Square the night of May 4, 1886, was both a climax and an echo of the national movement for an eight-hour day. As far back as the i86o's, popular agitation for an eight-hour working day had taken root in American laboring- classes. With but few exceptions, the press condemned and ridiculed the movement. The Illinois State Register > for example, declared that the: . . . one most consummate piece of humbuggery ever suggested in con- nection with the "labor question" is the so-called "eight-hour movement." The thing is really too silly to merit the attention of a body of lunatics . . . and the idea of "striking" for eight hours is about as sensible as "striking" for pay without the hours. Despite the unanimity of editorial opinion against it, the movement was supported by many liberals in Congress, federal and local gov- ernmental agencies, churchmen, and professional men. On February 16, 1886, the McCormick Harvester factory was i 7 4 PURSUIT OF FREEDOM shut down and 1,400 employees locked out on the issue of unioniza- tion. Two days later a strike was called. At the end of the month, Cyrus McCormick announced that his factory would start operations the first week in March. Three hundred men applied for work March 2, 1886. Mean- while, the company employed a large number of Pinkerton guards, and the city put between 350 and 500 police at its service. A mass meeting of the locked-out employees was organized for the same day to protest the use of police, Pinkerton men, and strikebreakers. The police broke it up. Frequent disturbances took place during the rest of March near the McCormick works. Despite huge parades and demonstrations and the "walking out" of 30,000 men, May Day was peaceful. On May 3 the Lumber Shovers' Union, striking for a reduction in hours, sponsored a meet- ing on Black Road. When August Spies arrived to speak, he found 6,000 workers assembled, including some of the McCormick strikers. Shortly before he finished, the closing bell of the McCormick plant rang, and about 500 McCormick strikers ran toward the strike- breakers leaving the factory. Spies futilely urged them to stay, explaining that their meeting was unrelated to the strike. Ignoring the warning, they attacked the strikebreakers and drove them into the factory. Immediately plant guards and strikers clashed, and only when city police reinforcements came, making use of clubs and revolvers, did the strikers retreat. Two strikers were killed and many were wounded; six policemen also suffered injuries. Enraged by what he had seen, Spies wrote an inflammatory leaflet in the offices of the Arbeit er-Zeitung, an anarchist newspaper of which he was publisher. He thought that a larger number had been killed, a belief substantiated by an inaccurate account in the late edition of a Chicago newspaper. The leaflet was headed: REVENGE! Workingmen, to Arms! ! ! The word "revenge" was inserted by a printer without Spies's knowledge, and Spies later said that had he known about it in time, he would have stricken it out. However, he also wrote another article in his paper, in which he said: ". . . If brothers who de- fended themselves with stones . . . had been provided with good weapons and one single dynamite bomb, not one of the murderers would have escaped his well-merited fate . . ." Arrangements were made by labor unions to hold a protest meet- THE RIGHTS OF LABOR 175 ing against alleged police brutality, on the evening of May 4, 1886. Spies was asked to speak. Mayor Carter Harrison attended the meeting and found it orderly. Only about 3,000 people had come, and because of the slowness in getting started, only about 1,000 remained. Because the crowd was so small, the gathering moved from Haymarket Square to the mouth of Crane's alley, a half block away. The speakers were August Spies, Albert Parsons, and Samuel Fielden. They talked mainly of labor's rights. G. P. English, a Chicago Tribune reporter, later testified under oath : As to the temper of the crowd, it was just an ordinary meeting. It was a peaceable and quiet meeting. ... I didn't see any turbulence. I was there all the time. I thought the speeches they made that night were a little milder than I heard them make for years. They were all set speeches. . . . I didn't hear any of them say or advise that they were going to use force that night. After staying through most of the meeting, listening to the speeches and observing the crowd, Mayor Harrison returned to the Desplaines Street police station, where he suggested to Police Inspector John Bonfield that he dismiss his reserves. Bonfield said he had heard that an attack had been planned on the Chicago, Milwaukee and St. Paul Railroad depot, and for that reason he wanted to keep the police in readiness. The mayor consented and went home. By ten o'clock the meeting was beginning to break up. Spies and Parsons had finished speaking, and Fielden was near the end of his talk. A storm was threatening, and only about 200 people remained. Suddenly, 186 policemen, acting under orders of Bon- field, marched up to the meeting in military formation. Police Captain William Ward gave the order: "In the name of the people of the State of Illinois, I command this meeting immediately and peaceably to disperse." For a moment the crowd stood motionless. Fielden protested: "But we are peaceable!" Then someone threw a bomb into the ranks of the police. Seven policemen were killed and 67 other persons were wounded. Of 31 persons named in criminal indictments on May 27, only 8 were tried. They were Albert Parsons, August Spies, Samuel Fielden, Michael Schwab, George Engel, Adolph Fischer, Louis Lingg, and Oscar Neebe, Of the 8, Parsons and Fischer had left the meeting before it was over, Neebe and Engel were at home, and Lingg was not at the scene of the meeting. The trial started on July 15, before Judge Joseph E. Gary of 176 PURSUIT OF FREEDOM the Cook County Criminal Court. On August 20, the verdict was read as "death by hanging" for Spies, Parsons, Fielden, Schwab, Engel, Fischer, and Lingg. Neebe was sentenced to fifteen years' imprisonment for conspiracy. About 60,000 Chicago citizens, from every economic and social stratum, signed petitions asking clemency for the sentenced men. Petitions from all over the country were sent to Chicago ; even the capitals of England, France, and Germany were stirred to letter- writing and petitioning. Many of Chicago's civic and business lead- ers, lawyers, and sitting judges joined in the fight to save the convicted men; it was a fight that lasted seven years. Among those protesting were such civic leaders as Jane Addams; William C. Goudy, first president of the Chicago Bar Association; Stephen S. Gregory, later president of the American Bar Association; Judge Lambert Tree; Judge Samuel P. McConnell; Attorney Edward Osgood Brown; Potter Palmer; Marvin Hughitt, president of the Chicago and Northwestern Railway; Lyman Gage, president of the First National Bank; Henry Demarest Lloyd, whose father-in-law, William Bross, was part owner of the Chicago Tribune; Melville E. Stone, one of the founders of the Chicago Daily News, who before the trial had done much to help bring about the convictions; Dr. Ernest Schmidt, prominent Socialist; Captain William Perkins Black, chief defense attorney of the anarchists, who lost his sub- stantial corporation practice as a result of taking the case; George Schilling, labor leader, who had induced Black to take the case and who later engaged General Benjamin Butler and Leonard Swett, former law associate of Abraham Lincoln, to appeal the case ; Judge Murray F. Tuley; Senator Lyman Trumbull; Colonel "Bob" Ingersoll; Charles B. Holmes, president of the City Railway; William Penn Nixon, editor of the Republican Chicago Inter-Ocean; and Clarence Darrow. Active in the East in behalf of the sentenced men was William Dean Howells, editor, critic, and novelist. A year after the lower court had convicted and sentenced the anarchists, the Illinois Supreme Court upheld the verdicts. The United States Supreme Court refused to interfere. On November 10, the day before the scheduled hanging, Governor Richard Oglesby commuted the sentences of Fielden and Schwab. The next day, Louis Lingg killed himself in his cell; the other four who had been sentenced to death were hanged. Time passed. ... In Springfield, a new governor, John Peter Altgeld, listened to the pleas for clemency for the remaining three THE RIGHTS OF LABOR 177 anarchists. On June 26, 1893, he announced the granting of abso- lute pardons to Fielden, Schwab, and Neebe. In his report on the case, Governor Altgeld set forth his reasons for pardoning. The governor said that a number of men who had examined the case records had based their pardon appeal on the following grounds: First — That the jury which tried the case was a packed jury selected to convict. Second — That according to the law as laid down by the Supreme Court, both prior to and again since the trial of this case, the jurors, according to their own answers, were not competent jurors, and the trial was, therefore, not a legal trial. Third — That the defendants were not proven to be guilty of the crime charged in the indictment. Fourth — That as to the defendant Neebe, the State's Attorney had de- clared at the close of the evidence that there was no case against him, and yet he has been kept in prison all these years. Fifth — That the trial judge was either so prejudiced against the defend- ants, or else so determined to win the applause of a certain class in the com- munity, that he could not and did not grant a fair trial. After presenting this summation, the Governor set about sub- stantiating these charges. He summarized his evidence against the jury with the following statement: No matter what the defendants were charged with, they were entitled to a fair trial, and no greater danger could possibly threaten our institutions than to have the courts of justice run wild or give way to public clamour; and when the trial judge in this case ruled that a relative of one of the men who was killed was a competent juror . . . and when, in scores of instances, he ruled that men who candidly declared that they believed the defendants to be guilty . . . and . . . when in all these instances the trial judge ruled that these men were competent jurors, simply because they had, under his adroit manipulation, been led to say that they believed they could try the case fairly on the evidence, then the proceedings lost all semblance of a fair trial. Governor Altgeld then discussed the evidence against the con- victed anarchists. In referring to Judge Gary's basis for conviction, that the unknown person who threw the bomb had done so as a result of incitement by inflammatory speeches and writings of the anarchists, he said: The judge certainly told the truth when he stated that this case was without a precedent, and that no example could be found in the law books to sustain the law as above laid down. For, in all the centuries during which 178 PURSUIT OF FREEDOM government has been maintained among men, and crime has been punished, no judge in a civilized country has ever laid down such a rule before. He asserted that under Judge Gary's reasoning: It was necessary ... to prove . . . that the person committing the violent deed had at least heard or read the advice given to the masses, for until he either heard or read it, he did not receive it, and if he did not receive it, he did not commit the violent act in pursuance of that advice. The Governor gave his own theory of the bomb-throwing: that it was an act of personal revenge. He explained: While some men may tamely submit to being clubbed, and seeing their brothers shot down, there are some who will resent it, and will nurture a spirit of hatred and seek revenge for themselves, and the occurrences that preceded the Haymarket tragedy, indicate that the bomb was thrown by someone who, instead of acting on the advice of anybody, was simply seeking personal revenge for having been clubbed, and that Captain Bonfield is the man who is really responsible for the death of the police officers. The Governor supported his theory by outlining the brutality of police and Pinkerton men in a number of instances of labor dis- turbances during the decade preceding Haymarket. He presented affidavits of business men and a letter from Police Captain Michael Schaack (captain at the time of the Haymarket affair), attesting to the lawless and brutal treatment accorded workers by Police Inspector Bonfield. He asserted that in the clash at the McCormick works on the day before the Haymarket meeting, the police had fired upon workers who were running away from them — "that this was wanton and unprovoked murder, but there was not even so much as an investigation." Declaring that the Haymarket meeting had been peaceable and orderly, he said: Had the police remained away for twenty minutes more there would have been nobody left there, but as soon as Bonfield had learned that the mayor had left, he could not resist the temptation to have some more people clubbed, and went up with a detachment of police . . . and that on the appearance of the police the bomb was thrown . . . and several innocent and faithful officers, who were simply obeying an uncalled for order of their superior, were killed. The Governor charged that much of the evidence against the anarchists was fabricated and cited instances to prove his contention. The final section of Altgeld's reasons for pardoning was devoted to citing evidence of the prejudicial treatment of the case by Judge Gary. THE RIGHTS OF LABOR 179 The Haymarket affair resulted in a wave of hostility toward labor similar to that which followed the strikes of 1877, differing only in degree of intensity. The legislative outcome of the anti-labor and anti-radical sentiment was the Cole Anti-Boycott Law and the Merritt Conspiracy Law. Prior to 1887, organized labor had made effective use of the boycott in labor disputes. The Haymarket affair, however, had the effect of promoting the cause of anti-boycott legislation which was backed by some employers' associations. In 1887 a law was enacted which provided that if two or more persons conspired together, or if the officers of any organization issued any circular or edict instructing its members to institute a boycott or blacklist, they were guilty of conspiracy, punishable by fine or imprisonment. The inclusion of the word "blacklist" has been interpreted as merely a precaution to avoid doubt of the law's constitutionality on the ground of being discriminatory legislation. However, accord- ing to E. R. Beckner, authority on labor legislation, "the law was intended to apply exclusively to labor unions." Efforts to secure repeal of the Cole Anti-Boycott Law have thus far failed. The Merritt Conspiracy Law, also adopted in 1887, was a statu- tory enactment of the doctrine of conspiracy pronounced by Judge Joseph E. Gary in the trial of the Haymarket "anarchists." The statute provided that if two or more persons conspired to do an unlawful act, which was itself dangerous to persons or property, or whose accomplishment would probably require the use of force or violence, thus endangering person or property, every party to the conspiracy was liable for whatever offense any of the others might commit in furtherance of the common purpose j it also provided that every person who, by speech or writing, advised or incited other persons to revolution, riot, violence, or resistance to the law, was guilty of conspiracy; further, it provided that to convict, the prosecution need not show that the person actually committing the crime had heard or read the defendant's utterance, so long as the utterance was made in a public manner in Illinois, and that con- spiracy might be proved without even showing an agreement on the part of the accused persons, so long as it was shown that they actually were working together, and knew that their acts might have unlawful results. Agitation for repeal of the law began at once, and in 1891 the legislature struck it from the statutes. How- ever, the doctrine of conspiracy set forth by Judge Gary has re- mained in effect in Illinois, and is applicable in litigation growing out of labor disputes. i8o PURSUIT OF FREEDOM Meanwhile, as a result of the intense agitation for the eight- hour day and other labor actions, there was developing among the workers strong sentiment for organized bargaining strength. Al- though the eight-hour day had not yet been won on a national scale and the fight for it was going on, every labor organization in 1888 had to meet also the question of maintaining the level of wages. Employers countered with "ironclad contracts," known as "yel- low-dog" contracts, providing that the worker shall not become a member of a union during the term of his employment or discuss with union officials or members wages and working conditions. Pressure against the "yellow-dog menace to the community" led the legislature in 1893 to enact a law against the "ironclad contract." A few years later the act was declared unconstitutional by the Illinois Supreme Court, when it reversed the conviction of a man who had been found guilty under the act for discharging an employee for union membership. The court declared that since the statute de- prived the employer of his right to terminate contracts, and since it rendered the discharge of a union employee a criminal act — whereas the discharge of a non-union man was not rendered a crim- inal act — it violated the due process clauses of the state and federal constitutions. Organized labor's pressure on the Illinois legislature for relief from the activities of the "labor spy" led to the passage, in 1893, of a bill designed to prevent the movement of detective forces from one county to another for use as deputy sheriffs. It was made un- lawful for the sheriff of any county, or the authorities of any municipality, to appoint as deputy sheriff or special policeman any- one who was not a citizen and who had not been a resident of the county for one year previous to his appointment. The law, however, had little effect in Chicago, where the majority of the private detec- tive agencies operated. In 1898 coal mines in Virden, 13 miles southwest of Springfield, struck when the local company refused to pay the rates established after the strike of 1897 by the Illinois Coal Operators' Association and the miners' union. In an effort to keep the mines going and break the strike, the company brought in strikebreakers. When 300 Negroes, guarded by 75 armed men, arrived from Alabama October 12, 1898, they were met at the station by a group of strikers. In order to disperse the strikers the guards fired ; in the battle that followed, 10 miners and 6 guards were killed. Enraged by the deaths of the 1 6 men, Governor John R. Tanner, who had sought peaceful arbitration of the strike, sent the state THE RIGHTS OF LABOR 181 militia into Virden, ordering them not to permit the strikebreakers to leave the train. The strikebreakers and the guards were ordered to leave the state. When the legislature convened in 1899, the governor urged the enactment of a law against importation of strikebreakers or armed guards who had no authority to perform police duty in the state. The result was the Tanner Act, which made it unlawful for any employer to induce workmen to change from one place to another in Illinois, or to bring workmen into the state by means of false representation concerning wages, character of work, other conditions of employment, or the existence or non-existence of a strike or other labor trouble. Failure to tell the prospective worker that there was labor trouble, when such trouble existed, was to be deemed a false representation. The Act further provided that anyone who hired persons to guard with arms other persons or property in this state, or any persons who entered the state armed for such purpose without the governor's permit, was guilty of a felony, and liable to imprisonment from one to five years. This section was to apply only in the case of strikebreaking activities. In 191 1, when the Act was first brought into question before the Supreme Court of Illinois, it was held discriminatory, and therefore unconstitutional, for not including misrepresentations to resident workers. The year 1893 was noted in Chicago as that of the great World's Fair and of a widespread financial panic. By 1894 "the labor situation in Chicago was a serious one." And its gravity had been increased by the number of workers who had come to Chicago seeking work during the World's Fair boom. The depression which followed the panic further aggravated the situation, curtailing the activities of industries and plants which had survived the initial panic. In May, 1894, a grievance committee of Pullman Palace Car Company employees requested restoration of wages which had been reduced 25 to 40 per cent. The company's answer was to discharge the committee which had represented the workers. In retaliation, the men, 3,700 of whom belonged to the American Railway Union, walked out. A year previously, in June, 1893, the American Rail- way Union had been organized in Chicago under the leadership of Eugene V. Debs. The significance of the strike is described by one labor historian in these terms: "The strike in itself was a compara- tively small affair, but it led to the greatest labor uprising in the history of the United States." The strike among the Pullman 1 82 PURSUIT OF FREEDOM workers came up for consideration in Chicago on June 22, at the annual convention of the American Railway Union, which ordered a sympathetic strike. The sympathetic strike threw "railway trans- portation throughout the Middle West into a colossal snarl. All but six of the twenty-four railroads that entered Chicago were tied up." The General Managers' Association, a group of railroad execu- tives controlling 40,000 miles of railroad lines, imported 2,000 strikebreakers who were ordered to attach a mail car and a Pullman car to each train, thus forcing the strikers to obstruct the mail when- ever they attempted to detach a Pullman car. Many of the 2,000 strikebreakers ripped up tracks and destroyed signal towers; a number of freight cars were burned in Chicago by men whom Mayor Hopkins of Chicago called agents 'provocateurs. On appeal of the Association, the Attorney General of the United States authorized a representative of the Association to select special deputy marshals, and permitted the new deputy marshals to receive their salaries from the railroads. The 3,400 men selected were de- scribed later by Police Superintendent Brennan of Chicago as "thugs, thieves, and ex-convicts." The appearance of armed company guards aroused the resent- ment of the strikers. On June 30, Debs appealed to the strikers to avoid any form of violence. He said: "A man who will destroy property or violate law is an enemy and not a friend of the cause of labor." On July 2, a sweeping injunction was issued against Debs and other officials of the union, enjoining them from obstruct- ing the mails and interfering with interstate commerce. When the Managers' Association maintained that the injunction was not being obeyed, federal officials in Chicago, the district attorney, the United States district marshal, and judges appealed to President Grover Cleveland for aid "to move the mails and enforce the court orders." On July 4, over Governor John P. Altgeld's protest "that the state troops were able to restore and maintain order," President Cleveland proclaimed a state of insurrection and ordered four com- panies of the 15th U. S. Infantry into Chicago. Soon Chicago had over 10,000 soldiers encamped, equipped with artillery pieces. When he learned that federal troops had been sent into Chicago, Governor Altgeld wired President Cleveland: I am advised that you have ordered Federal troops to go into service in the State of Illinois. . . . Waiving all questions of courtesy, I will say that the State of Illinois is not only able to take care of itself, but it stands ready today to furnish the Federal Government any assistance it may need else- THE RIGHTS OF LABOR 183 where. ... As Governor of the State of Illinois I protest against this, and ask the immediate withdrawal of Federal troops from active duty in the State. This protest went unheeded and real violence began "after the arrival of the troops." Despite the fact that soldiers guarded trains and terminals, the destruction of property continued. Debs charged that the property was destroyed by hoodlums hired by the com- panies. On July 6, deputy marshals fired into a crowd of demon- strators, killing two men. Four days later, Debs and three other officials of the American Railway Union were indicted for con- spiracy to obstruct the mails and to intimidate citizens. The union offices were raided, books and papers were seized, and the union officials were arrested and released on $10,000 bail bond each. On July 17, Debs and the three others were rearrested for con- tempt of court in violating the injunction issued against them. This broke the resistance of the strike, and August 5, the local unions officially ended the strike. Soon thereafter, the American Railway Union disintegrated. Debs received a six-month prison sentence, and the three other officials three-month terms each. The Pullman Company rehired many of its employees, but only on condition that they cease to belong to the American Railway Union. Later, a commission appointed to investigate the strike observed: The company does not recognize that labor unions have any place or neces- sity in Pullman, where the company fixes wages and rents and refuses to treat with labor organizations. The laborer can work or quit on the terms offered; that is the limit of his rights. To join a labor organization is overstepping the limit . . . In the decade which followed the Pullman strike, organized labor sought first to consolidate its strength, and then, through that con- solidated strength, to conduct campaigns and strikes for the closed shop, recognition of bona fide labor unions, collective bargaining, the right to picket and the right to strike; it fought against the blacklist, yellow-dog contracts, company spies, and the anti-labor injunction. One of the most important issues facing labor in the early years of the twentieth century was the "closed shop," defined as "a shop in which only members of the union claiming jurisdiction are allowed to retain employment." Many strikes were called for the express purpose of winning closed shop contracts ; for these offered greater job security to the worker who was a member of a union. Strikes for closed shops have had a confused judicial 1 84 PURSUIT OF FREEDOM history in Illinois. In 1903 the Illinois Appellate Court, First District, refused to hold that such a purpose was illegal. In 1904 the same court held that a union could not lawfully compel an employer to sign a contract, especially one for a closed shop. And in 1905 the Illinois Supreme Court said that a threat of strike to force the signing of a closed shop agreement was unlawful. Similarly, "The legality of picketing has turned upon the prob- lem of whether intimidation or violence is inherent — whether there is such a thing as peaceful picketing." Under the rarely enforced La Salle Black Law even peaceful picketing is unlawful. In 1902 the Illinois Appellate Court, First District, held that, although peaceable persuasion was lawful, the mere congregation of persons in such numbers or manners as would tend to intimidate a reason- able or prudent man was unlawful and in itself intimidation. In 1905 the same court held that there is no such thing as peaceful picketing: "It is idle to talk of picketing for peaceful persuasive purposes. Men do not form picketlines for the purpose of con- versation and lawful persuasion. ... Its use is a form of unlawful coercion." The ambiguity of judicial opinions concerning the right of picket- ing had the effect of beclouding the right of labor to use one of its strongest weapons during a strike. Abolition of the right to picket, labor leaders held, is in contradiction to the theory of freedom expressed by Abraham Lincoln, as given by Nicolay and Hay in their abstract of Lincoln's speech at Hartford, Connecticut, March 5, i860: "Mr. Lincoln thanked God that we have a system of labor where there can be a strike." The philosophy was that, since a slave is not free to stop work, labor is not free unless it can strike. The contradictory character of judicial opinions on the various rights of labor was a reflection of the growing division of society into groups of people who supported human rights and those who supported property rights. Both groups maintained that their views reflected the basic principles of American democracy. The sharpest division appeared in strike cases, where, frequently, the divergence of these opinions bordered on violence. Such was the case of the teamsters' strike of 1905, where both the International Brotherhood of Teamsters and the Chicago Em- ployers' Association disregarded law enforcement agencies and in- dulged in violence. The Brotherhood had become so powerful in Chicago that it set itself up as arbiter of labor disputes in other industries, and employers were chafing under the restrictions im- posed and the concessions obtained by it. In addition, the Brother- THE RIGHTS OF LABOR 185 hood was controlled by a group of men suspected of accepting graft from employers in exchange for favors. The Chicago Employers' Association decided to break the hold of the Brotherhood, and dis- cussed plans for many months. They decided that after May 1, 1905, no closed shop agreement with the Brotherhood would be renewed by any member of the Association. The Brotherhood, however, took the initiative, and when 19 garment workers of Montgomery Ward and Company were dis- charged, the 71 teamsters of the company went out on a sympathy strike. The same day, April 6, mass picket lines were established at Montgomery Ward's. A crowd of 10,000 persons surrounded the company's warehouse and threw stones and bottles filled with acid. Violence increased daily. On April 24, the garment workers asked the teamsters to call off their strike, but the teamsters dis- covered that their employers refused to rehire them. The Em- ployers' Association took over leadership against the strikers, and instituted a comprehensive blacklist against the teamsters. It or- ganized a corporation under the laws of West Virginia for the purpose of doing teamster work, and imported strikebreakers, many of whom were Negroes. The appearance of Negro strikebreakers led to serious violence. Mobs attacked caravans of wagons sent out by the corporation, and obstructions were built in the streets to prevent their passage. Traffic in the loop district was blocked for hours at a time. The union used sluggers to attack strikebreakers and their guards; the Employers' Association sent out its own sluggers for similar work against the strikers. Several thousand deputy sheriffs, sworn in to guard the wagons and the strikebreakers, were of little help in reducing the violence. There were three riots April 28, and, thereafter, daily battles between strikers and strikebreakers. The employers hired a St. Louis gangster to lead their sluggers, and May 1 he placed himself at the head of 300 armed men and marched into the streets. He and his men were met by a mob of strikers who beat and dispersed the 300. The slugging crews of the employers indiscriminately attacked people in the streets; bystanders and even policemen were their victims; on one occasion they attacked a funeral procession. The union had its own army of 200 sluggers, who were sent in squads of ten to perform designated "jobs." By May 12, the Brotherhood was showing signs of weakening, but disturbances continued. On May 14, 3,200 school children went on strike against non-union deliveries of coal to the schools. Some 1 86 PURSUIT OF FREEDOM of the pupils were clubbed by the police, and the student strike ended May 18. The employers adopted the tactic of putting so many wagons on the streets that the city's police force would be overtaxed, thus obliging the mayor to call upon the governor for the National Guard. The mayor threatened to do so after the race riots of May 20, 1905, and violence at once ceased. After another 60 days the Brotherhood admitted complete defeat. The strike had lasted 105 days; 1,108 persons had been arrested, 415 seriously injured, and 21 killed. The breaking of the strike appreciably diminished the strength of organized labor, and it was several years before it once more gained impetus in Chicago. Meanwhile, in 1905, the Chicago Typographical Union had called a strike in which the court handed down an injunction limiting the strike activities of the workers. In a review of the case by the Illinois Supreme Court in 1908 — Barnes vs. The Chicago Typo- graphical Union — the dissenting opinion, concurred in by Justices Guy C. Scott and William M. Farmer, marked an historic challenge to the application of anti-labor injunctions. The dissenting opinion asserted that: In a proceeding to punish for a violation of an injunction . . . courts . . . have determined the innocence or guilt of the defendants without the intervention of a jury, upon ex 'parte affidavits, usually drawn in the words of the solicitor for the complaining party, where the defendants have no opportunity to cross-examine or even see the witnesses. While that course has been frequently approved, we yet hold that no reasoning, however strong, can disguise the fact that in pursuing such a course the ccurt . . . denies to the defendants their constitutional right of trial by jury and their con- stitutional right to be confronted by the witnesses against them. In the men's clothing industry, one of the chief weapons used against organizations of workers had been the blacklist. The black- list has been described as "in its simplest form, a list of names pri- vately circulated among employers for the purpose of jointly refusing employment to union workmen in general or to individual workers who are held in disfavor." Conditions in the shops were so bad, however, that despite the use of the blacklist the men banded together in unions. In 19 10 an announced wage-cut at Hart, Schaffner and Marx sent several men out on strike, and these were soon joined by 35,000 employees of the Chicago garment industry. Chief issues in the strike were the extremely low wages, the black- list, and the "overbearing" attitude of company foremen. Public THE RIGHTS OF LABOR 187 sympathy was with the strikers, and a "society" picket line of women, students, and settlement workers was formed. The strikers managed to publicize the existence of the blacklist so thoroughly that public protest prompted an investigation by a special committee of five members appointed by the State Senate. The com- mittee found that twenty-six of the largest employers in the indus- try were organized into an association which maintained an employ- ment bureau where detailed records of all the workers of the mem- ber employers were kept. If an employee was discharged for union activity by one of the twenty-six, he was blacklisted by all other members of the association. The committee also found that union members were forced to resign from the union before members of the association would employ them. The committee condemned the practice of a blacklist, but the General Assembly took no action. The strike ended in February, 191 1. Only the Hart, Schaffner and Marx employees won concessions in the form of a collective bargaining agreement. The struggle to secure collective bargaining rights in the men's clothing industry in Chicago was resumed in 19 15, when the Amal- gamated Clothing Workers of America — formed, in the Chicago area, around the Hart, Schaffner and Marx union nucleus — called a general strike for higher wages, shorter hours, the abolition of the blacklist and the speed-up, and for the establishment of arbitra- tion machinery to adjust future grievances of the workers. Chief of Police Healy immediately announced that: ... parades and demonstrations of the strikers will be prevented. Captains have received orders to halt any street speeches or large gatherings. Details of patrolmen and mounted police will be stationed in the immediate vicinity of all clothing houses. The manufacturers will be given the same police protection that any individual or business house merits. Though I do not expect any outburst, I am not taking any chances. Sidney Hillman, president of the union, counter-announced: "There will be no violence. Even picketing of the shops will not be undertaken. Our union is strong enough not to require this move." On September 29, two days after the expiration date of the union's ultimatum for collective bargaining, the strike was on, with 25,000 men and women out. Throughout the strike, one of its chief characteristics was bitter fighting between the police and the strikers. An investigation of alleged police attacks, made by Miss Mary McDermott, an investigator for Mrs. Louise Osborne Rowe of the Public Welfare Department, revealed numerous cases in which 1 88 PURSUIT OF FREEDOM men and women had been roughly handled by the police. Motor- cycle and mounted police drove recklessly into groups of strikers gathered in the street. Special detectives were allowed to patrol the strike-bound area, and to prevent union men from entering it, despite protests by the City Council. A delegation, including President Hillman, John Fitzpatrick, Ellen Gates Starr, Victor Olander, Mary McDowell, Edward Nockels, Agnes Nestor, St. John Tucker, and Luke Grant, visited Mayor William H. Thompson to present the case of the strikers. Although the Mayor did not see the delegation, he promised to keep the police neutral. When police brutality continued, a member of the city council presented evidence of the police activities and demanded an investi- gation. The employers, however, declined to meet with the inves- tigating committee established by the council. Efforts for a peaceful settlement of the strike were continued by prominent citizens. Sixteen women, including Grace Abbott, Mrs. Medill McCormick, Mary McDowell, Sophonisba Breckinridge, and Ellen Gates Starr, wrote a letter to the mayor, giving evidence of police brutality. As the strike continued, and as workers marched in huge parades, the City Council's Committee on Police adopted a report censuring the police department's attitude in considering strikers at any time as its natural enemies. Aldermanic hearings disclosed police prac- tices which had heretofore been unknown to the citizens of Chicago. Chief of these was the employment of secret agents to spy on union meetings. The Council adopted a resolution calling for the removal of special police from the vicinity of plants affected by the strike; for it was found that violence always occurred in those places where the special police were located. The strike was called off December 12, nearly three months after it began. Workers returned to the shop as union members. Although the union was not recognized, the workers won a certain number of concessions. The next grave challenge to workers' civil rights arose imme- diately after the Armistice. The United States Steel Corporation had adhered steadfastly to its anti-union resolution of 1901. When conditions of employment at the mills led its employees in 19 19 to call for certain reforms, their demands fell on deaf ears. The workers' greatest grievance was the twelve-hour day and the seven- day week prevailing at the mills, and the twenty-four-hour shift THE RIGHTS OF LABOR 189 for each worker during the regular transfer from day shift to night shift and back again. Judge Elbert H. Gary, chairman of the board of the United States Steel Corporation, refused to deal with any but individual employees. When Samuel Gompers of the American Federation of Labor asked for a conference on hours of work, Gary refused, stating that the union did not represent a majority of the workers, that the corporation adhered to the policy of the open shop, and that, in any event, the workers liked the long hours and wanted no change. By September 29, 19 19, more than 300,000 steel workers were on strike throughout the country; 90,000 of them, in the Chicago area. Although the strike was national in scope and manifested the same general basic tendencies everywhere, nevertheless, it differed enough from place to place to give each locality a different character. An intensive campaign by the steel combine against the strikers made use of the contemporary "Red-scare." The strikers were called "Bolshevists" led by "outside agitators." The strike was characterized as an attempt at revolution by direct action. The race issue was played up, and Americans were advised to stand to- gether against the foreigners who were about to overwhelm them by taking away their jobs, especially where skill was required. Vigilante groups, such as the Loyal American Leaguers, were or- ganized; and they terrorized the strikers in the Chicago area by clubbing and beating them. When, at Gary, the strikers beat a strikebreaker, the militia was called out, but later was transferred to Indiana Harbor. Uniformed ex-service men paraded. At the Standard Street Car plant, strikebreakers fired into a crowd of pickets, killing four and wounding twelve. A provisional regiment of regular troops under the command of Major General Leonard Wood came to Gary from Fort Sheridan October 6, and martial law was proclaimed. The unions offered to supply 700 ex-service men to enforce law and order; but their offer was rejected. Only one picket was allowed to stand at each gate, and no picket was permitted to speak to anyone else. With this suppression of all strike activity, through the combined action of federal, state, and private agencies, there remained little hope for success. The report on the strike made by the Commission of Inquiry of the Interchurch World Movement, representing the Protestant churches of America, said: The cry of Bolshevism was not only a fraud on the public; it was a i 9 o PURSUIT OF FREEDOM dangerous thing because it advertised to the mass of immigrant steel workers, who went down to defeat under old flags and old slogans, an idea and untried methods under which they might be tempted to make another battle. Of the charges made by the strikers that the federal government assisted in suppressing strike activity, the report went on to say: Federal officials' active intervention concerned chiefly ( I ) the Department of Justice . . . whose public activities dealt with raids in search of "reds" in the steel strike; and (2) the U. S. Army. Both cases contributed to steel workers' belief about strike-breaking activities. The general strike of railway shopmen in 1922 was characterized by the most sweeping injunction against strike activity ever issued by an American court. The Railway Labor Board was created by an act of Congress in 1920. July i, 1922, the Board ordered a 10 per cent reduction in the wages of 400,000 union shopmen throughout the country. For two months, the strike for the old wage scale continued with comparatively little violence, considering its magnitude. Trans- portation, nevertheless, was hampered seriously. On September 1, 1922, Judge James H. Wilkerson, of the U. S. District Court for the Northern District of Illinois, issued a restraining order against the Railway Employees Department of the American Federation of Labor, in response to a request by Attorney General Harry M. Daugherty. The temporary order was issued without notice to the defendants, on the representation of the Attorney General, who stated "that the administration would not permit labor unions to destroy the open shop." The writ forbade union leaders from issuing any instructions to members inducing them to do or say anything to cause any railway employee to leave his work, and union officials were restrained also from using the union's funds in the strike. For many years organized labor sought legislation that would outlaw the use of injunctions during labor disputes. The American Federation of Labor, in particular, campaigned vigorously for such legislation. In 1925, the Illinois General Assembly enacted an anti-injunction law, which was marked by the same looseness of interpretation that characterized the Clayton Act. Just what the law permits and does not permit in the way of injunctive relief is not clear from current judicial opinions. The object of the strike must be legal, and picketing must be peaceful. These indefinite terms invest the courts with wide discretionary THE RIGHTS OF LABOR 191 powers to determine what are the objects of a strike and what is peaceful picketing. The Norris-LaGuardia Anti-Injunction Act, which included a provision making yellow-dog contracts unenforceable in the courts, became a law by act of Congress in 1932. One of the aims of the legislation was to end the use of court injunctions to suppress organi- zation campaigns by labor. Thus the courts were unable to enjoin union organizers from seeking to enroll workers who had signed yellow-dog contracts. The next year the Illinois General Assembly passed a similar bill, making yellow-dog contracts unlawful. A new strike technique appeared throughout the country in 1936 and 1937. Many strikes had been lost because picket lines were ineffective. To remedy this weakness, labor developed the sit- down strike. As a means of forcing immediate recognition of grievances and compelling collective bargaining, this technique was effective. Its legality was doubtful, inasmuch as it infringed upon property rights protected by federal and state constitutions. The sit-down strike brought into focus the fundamental issue of the right of property versus the right to work. Employers insisted that sit-down strikers were occupying property that did not belong to them. The strikers, in turn, asserted that the plants occupied by them were not owned by the management, but by the shareholders, to whom the profits of the enterprise belonged and, further, that the rights of the workers to a job and to be paid wages for their work were similar to the rights of the shareholders to receive profits. The controversy was highlighted in the case involving the Fan- steel Metallurgical Corporation of North Chicago. The corpora- tion refused to recognize, as bargaining agent, its workers' union, an affiliate of the Committee for Industrial Organization. About ninety workers took possession of two key plants February 17, 1937, and held them for nine days, despite the sheriff's use of tear gas, nauseating gas, guns, and battering rams, and the shutting off of heat and light by the company. Governor Henry Horner suggested that the company recognize the union and agree to rehire those discharged for seizing the plant. The company rejected the proposal February 25, and on the fol- lowing day launched an effective tear-gas offensive, using a battle tower drawn up before the plant. Hungry and sick, the men evacuated and were arrested. Fourteen were fined and jailed, ninety-one were discharged. The National Labor Relations Board ordered that the company deal with the union and that the discharged strikers be reinstated. i 9 2 PURSUIT OF FREEDOM The Board declared: "There can be no doubt that the direct and immediate cause of the strike was the illegal activity of the respond- ent (the company). Nor can there be any question as to the gravity of the respondent's unlawful course of action. . . ." The Board did not pass on the legality of the strike technique, but the United States Supreme Court did, declaring the sit-down strike to be a "highhanded proceeding without a shadow of a legal right." On March 2, 1937, the Steel Workers' Organizing Committee of the Committee for Industrial Organization, in conjunction with the Amalgamated Association of Iron, Steel, and Tin Workers, obtained a written collective bargaining agreement with the Car- negie-Illinois Corporation, a unit of the United States Steel Cor- poration. Efforts by the S.W.O.C. to accomplish the same thing with "Little Steel" were unsuccessful; for the smaller concerns in the industry refused to sign written agreements. Accordingly, a strike was instituted May 26, 1937, against these companies, includ- ing the Republic Steel Corporation. The same day Police Commissioner James P. Allman ordered the officer in command in the South Chicago district to "make the necessary detail to preserve peace and to protect life and property." No other orders affecting the area were issued by the commissioner until after Memorial Day. That evening, 23 picketing strikers of the Republic Steel plant were arrested, charged with unlawful assembly and disorderly conduct; and picketing was curtailed. Mayor Edward J. Kelly stated, May 27, that peaceful picketing would be permitted; however, the police allowed only a small picket line of 10 men, and all others were kept more than two blocks from the plant. On Memorial Day, which fell on Sunday, a public meeting of the strikers was held in South Chicago, at 1 1 7th Street and Burley Avenue. At the end of the speechmaking, the meeting voted to establish a picket line at the plant at once. There was no urging of violence. According to testimony given later before the Senate (LaFollette) Civil Liberties Committee, the marchers were in holi- day mood and good-natured, though a few picked up stones and sticks. What happened when they met the police, as they marched across the fields toward the steel plant, was recorded visually by Paramount newsreel men. Suppressed for a time by the Paramount Company, the film was shown in Washington to the LaFollette Committee. The St. Louis Post Dispatch published on June 16, 1937, a detailed description of the picture, written by Paul Y. THE RIGHTS OF LABOR 193 Anderson, the paper's Washington reporter. In part, Anderson wrote : A vivid close-up shows the head of the parade being halted at the police line. The flagbearers are in front. Behind them the placards are massed. They bear such devices as: "Come on Out — Help Win the Strike," "Re- public vs. the People," and "C.I.O." Between the flagbearers is the march- ers' spokesman, a muscular young man in shirt-sleeves, with a C.I.O. button on the band of his felt hat. He is arguing earnestly with a police officer who appears to be in command. . . . Then suddenly, without apparent warning, there is a terrific roar of pistol shots, and men in the front ranks of the marchers go down like grass before a scythe. The camera catches approximately a dozen falling simul- taneously in a heap. The massive, sustained roar of the police pistols lasts perhaps two or three seconds. Instantly the police charge on the marchers with riot sticks flying. At the same time tear gas grenades are seen sailing into the mass of demon- strators, and clouds of gas rise over them. Most of the crowd is now in flight. The only discernible case of resistance is that of a marcher with a placard on a stick, which he uses in an attempt to fend off a charging police- man. He is successful for only an instant. Then he goes down under a shower of blows. . . . The scenes which follow are among the most harrowing of the picture. Although the ground is strewn with dead and wounded, and the mass of the marchers are in precipitate flight down the dirt road and across the field, a number of individuals, either through foolish hardihood, or because they have not yet realized what grim and deadly business is in progress around them, have remained behind, caught in the midst of the charging police. In a manner which is appallingly businesslike, groups of policemen close in on . . . isolated individuals, and go to work on them with their clubs. In several instances, from two to four policemen are seen beating one man. One strikes him horizontally across the face, using his club as he would wield a baseball bat. Another crashes it down on top of his head, and still another is whipping him across the back. These men try to protect their heads with their arms, but it is only a matter of a second or two until they go down. In one such scene, directly in the foreground, a policeman gives the fallen man a final smash on the head, before moving on to the next job. Ten men died from police bullets; seven had been shot in the back and three in the side; none was hit in the front. Thirty other persons, including one woman and three minors received gunshot wounds. More than sixty marchers were hurt seriously and re- quired medical treatment. Thirty-five policemen were injured slightly, none by bullets. 194 PURSUIT OF FREEDOM The verdict of the coroner's jury completely absolved the police. The conclusions of the LaFollette Committee, following an inten- sive investigation were: 1. Police Commissioner Allman stated to the committee that, in con- sonance with the opinion of the corporation counsel, he had no right to limit the number of pickets . . . and was required to permit picketing . . . so long as it remained peaceful. Yet Captain Mooney, without consulting the commissioner, reached his decision to prevent the . . . marchers from approaching the plant before he had any opportunity to observe their conduct and in the absence of any information as to their intentions. The Police defend this conduct upon their ex fost jacto conclusion that the objective of the marchers was to force a violent entry into the plant. We have analyzed that defense in detail above and have concluded that it is groundless. We are of the opinion that the sole objective of the marchers was to picket in mass at the plant gate. . . . The police have not urged that a mass picket line in front of the gate might have resulted in violence to non-striking employees on their way to work. . . . We are, therefore, of the opinion . . . that if the police had permitted the parade to pass . . . under a proper escort, the day would have passed without violence or dis- order and both the spirit and the letter of the corporation counsel's opinion, as construed by the commissioner of police, would have been complied with. 2. Were it to be conceded that Captain Mooney's determination to halt the marchers in the prairie was justified, proper police work clearly required careful preparation to accomplish this objective and disperse the demon- stration with a minimum of violence. Yet we find that no one gave real consideration to the tactics of the occasion. The available manpower was doubled, but no auxiliary measures were taken. No preparations were made for the use of tear gas, and the second in command on the field did not even know that gas was available. Instead, a number of the police armed themselves with hatchet handles, apparently obtained from the plant, and the whole police detail was sent to the prairie with the most perfunctory instructions, if any. 3. We find that the provocation for the police assault did not go beyond abusive language and the throwing of isolated missiles from the rear ranks of the marchers. We believe that it might have been possible to disperse the crowd without the use of weapons. We think it clear that the gas used, pursuant to the extemporaneous order of Captain Mooney, would have been sufficient. But no time was allowed for a determination of the effectiveness of the gas in dispersing the crowd; guns followed almost instantaneously. From all the evidence we think it plain that the force employed by the police was far in excess of that which the occasion required. Its use must be ascribed either to gross inefficiency in the performance of police duty or a deliberate effort to intimidate the strikers. 4. We conclude that the consequences of the Memorial Day encounter THE RIGHTS OF LABOR 195 were clearly avoidable by the police. The action of the responsible authori- ties in setting the seal of their approval upon the conduct of the police not only fails to place responsibility where responsibility properly belongs but will invite the repetition of similar incidents in the future. The problem of stranger picketing came before the courts in 1937, when a Chicago machinists' union attempted to obtain a closed shop agreement with a firm employing no union help. The Illinois Apellate Court upheld the legality of stranger picketing, saying that the purpose of such picketing was lawful "where a labor union by peaceful persuasion is seeking to secure an agreement with the employer to operate a 'closed' or union shop and to persuade employees to become members of the union. . . ." This was in accordance with a decision of the United States Supreme Court, delivered in 1 921, by Chief Justice William Howard Taft: ... It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers, they are bound to be affected by the standard of wage of their trade in the neigh- borhood. Therefore, they may use all lawful propaganda to enlarge their membership, and especially among those whose labor at lower wages will injure their whole guild. . . . In two 1939 cases, however, the Illinois Supreme Court ruled against stranger picketing. In the Meadowmoor case the court decided that the Anti-Injunction Act was intended to apply only in cases where employees have a dispute with their own em- ployer, or in a labor dispute between several groups of employees and employers. A similar view was expressed in the Swing case, involving the picketing of a beauty shop by a union to which none of the employees of the shop belonged. The reasoning in both cases was overruled by the United States Supreme Court when it enunciated the principle that stranger picketing is a legitimate technique in labor strikes. It thus reversed the Swing decision, but upheld the injunction in the Meadowmoor case because of acts of violence connected with the strike. (Milk Wagon Drivers Union of Chicago, Local 753 vs. Meadowmoor Dairies, 312 U.S. 287; and Swing vs. American Federation of Labor, 312 U.S. 321.) Passage of the Anti-Injunction Act of 1925 modified public policy with regard to picketing. Providing that workers should not be restrained from lawfully conducting lawful strikes, the law recognized peaceful picketing as legal. For nine years there was controversy over the validity of this law, but in 1934, the Supreme Court of Illinois held it constitutional and refused to enjoin peace- 196 PURSUIT OF FREEDOM ful picketing. Barnet Hodes, Corporation Counsel of Chicago, states that, although "this is now indisputably the law in Illinois . . . , it should be observed that some lower courts have exercised considerable discretion in determining the question of when picket- ing is or is not peaceable." On December 5, 1938, began one of the longest strikes in the history of the state; that of the Chicago Newspaper Guild against the Chicago American and the Chicago Herald-Examiner on charges of violation of an agreement made with the union, discharging union members, and refusing to bargain collectively. An injunction was obtained by the publishers against the Guild and its associates, enjoining them from "directly or indirectly intimidating or coercing subscribers and readers to cancel their subscriptions or refrain from purchasing said newspapers, . . . intimidating or coercing adver- tisers to cancel their contracts or refrain from purchasing advertising space, . . ." from maintaining more than two pickets at the entrance to the Hearst Building, and from picketing the premises of those who advertised in the papers. The Guild held that the injunction violated the state and federal constitutions in that it deprived the defendants of their liberty without due process of law, denying them the right freely to speak, write, or publish on all subjects, and peaceably to assemble. Judge John J. Lupe of the Superior Court of Cook County denied the Guild's motion to dissolve the injunction, despite the Illinois Anti-Injunction Act, construing the strike activities to con- stitute a secondary boycott — which is difficult of definitive legal definition. In the meantime, property of the Guild, including auto- mobiles, a sound truck, and a motorboat, were damaged by strike- breakers. Legal action was instituted by the Hearst management, citing the Guild and a number of Guild members and sympathizers for con- tempt of court. Fines of from $500 to $5,000 were assessed against the Guild. The fines were appealed, but the cases reached no higher judicial review because the strike was settled and the court vacated the contempt citations. The interest of Congress in the problem of achieving by legisla- tive action equality in bargaining power between employers and employees is exemplified in the preamble of the Norris-LaGuardia Act, which was an amendment to the judicial code limiting the juris- diction of courts sitting in equity. This preamble declared the "public policy in labor matters" as follows: "Whereas, under prevailing economic conditions, developed with the aid THE RIGHTS OF LABOR 197 of governmental authority for owners of property to organize in the cor- porate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor and thereby obtain acceptable terms and condi- tions of employment; wherefore, although he should be free to decline to associate with his fellows, it is necessary that he have full freedom of associa- tion, self-organization, and designation of representatives of his own choosing to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . . A climax to this change in governmental attitude toward labor was expressed in the National Labor Relations Act of 1935. To protect workers in the exercise of their right to organize for the purpose of collective bargaining, the Act declared certain employers' activities to be "unfair labor practices," and the National Labor Relations Board may order an employer to cease and desist from such practices. The Board may also order reinstatement of em- ployees discharged because of union membership or activity. Thus, the law now limits, in the public interest, the employer's right to hire and fire, to organize a company union, and to refuse to deal collectively with his employees. This change in attitude toward labor was stressed in an opinion delivered by the Corporation Counsel of the city of Chicago, Barnet Hodes, in 1937: . . . The old theory that labor is a commodity and may be treated as such, has definitely been rejected in enlightened quarters and perhaps no one in this age would wish to go back to the old order in that respect. Moreover, it is now an accepted principle of jurisprudence in this country that economic and social facts may be considered, in addition to abstract legal principles. . . . The Wagner Act, by forcing employers to take their hands off employees' organizations, has resulted in the greatest increase in labor strength in American history. Organized labor, which had prematurely hailed the Clayton Act as its Magna Carta, could with justice maintain that the Wagner Act had recognized the fact of industrial citizenship and encouraged orderly relations between employer and employee. The worker became something more than a 'hand,' to be hired and fired with impunity. As the Second World War progressed, it was estimated that the majority of the men and women employed in basic manufacturing were covered by agree- ments negotiated between unions and employers. 198 PURSUIT OF FREEDOM From 1865 to 1933, employers and that section of the community know as "business" had generally been in control of federal, state, and local governments, as well as in charge of the chief propaganda mediums. With the rise of the organized labor movement, that control was challenged and in many ways modified. Indicative of the shift was the action of the American Civil Liberties Union in offering its services to the Ford Motor Company in defense of its "freedom of speech" under the Wagner Act. For the first time an employer's civil liberties were deemed to be threatened. That, in itself, was a portent of the times. ^f'^^^^^^^^ ■&£ ■ . J/i ^ai^T^^l* w#$&W& ■f >: V^V~x w It BSlllI l ^M^^^ : ^7 ^'€^^^fe^^^Bf?--r:^^ | ■ i ^m^if- CHAPTER XIV FREEDOM OF CONSCIENCE Freedom of conscience differs from freedom of speech and press, in that it pertains to a state of mind rather than to direct action. Interference becomes possible only when the state of mind or opinion has been translated into action. Likewise, forced participa- tion in an action that would violate freedom of conscience becomes an abridgment of that freedom. Periods of national emergency, particularly war, invariably produce cycles of repression involving invasion of the sphere of conscience. How regimentation incident to modern industrialism can curtail freedom of choice as related to freedom of conscience was well explained by Walter Lippmann, columnist, in the Chicago Journal of Commerce, July 18, 1938. He said: But the industrial worker who has a choice between working in one factory and not working at all, the white-collar intellectuals who compete savagely for the relatively few private positions and for posts in bureaucracy — these are the people who live too precariously to exercise their liberties or 199 200 PURSUIT OF FREEDOM defend them. They have no savings. They have only their labor to sell, and there are few buyers of their labor. Therefore, they have only the choice of truckling to the powerful or of perishing heroically and miserably. Men like these, having none of the substance of liberty themselves, have scant respect for any law or any form of civil rights. Freedom of conscience is a liberty which supports the exercise of every civil right essential to a democratic society. It is, in fact, the basic right that gives to society free men of courage and honor ; it is a right the denial of which makes men slaves of a ruling class. Through the other chapters of this history of civil liberty in Illinois runs the living story of men struggling, in various relationships to their environment, to be free in their consciences, and to exercise that freedom with discipline, but without arbitrary interference. Freedom of conscience as a civil right is guaranteed by the state constitution of Illinois in connection with the exercise of religious liberty. Section 3 of the Bill of Rights specifies that "no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions ; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State." Liberty of conscience in matters of religious opinion is not established in this article or section as ground for exemption from military service within the state. Whether conscientious objection to military service is a civil lib- erty has long been a matter of controversy. Ever since America's war for independence, conscientious objectors have been recognized as presenting a special problem in times of war. No less a figure than Benjamin Franklin concerned himself with providing for the exemption of conscientious objectors from military service. Franklin, . . . sitting as a member of the Pennsylvania Committee of Safety in 1775, attached a rider to an estimate of war expenses to be submitted to the Philadelphia Assembly, which requested of that body that it exempt from military service those "persons who from their religious beliefs are scrupulous of the lawfulness of bearing arms." . . . After several weeks of violent debate, the Assembly acquiesced in the motion. The citizen's obligation to bear arms is implied in the authority the Constitution gives to Congress. Nevertheless exemption from military duty of persons who have conscientious objections to such service, grows out of the duty of Congress to provide for the common defense. It obtains from the nature of the needs of defense, rather than the discriminatory exemptions based on the citizen's FREEDOM OF CONSCIENCE 201 religion or conscience. Objectors are considered a hazard to morale in military service. Conscientious objection against military service is not recognized in Illinois as a civil right. "Conscientious scruples" are recognized in Article XII of the state constitution, dealing with the subject of militia. The constitution does not limit "conscientious scruples" to members of religious sects. But it does impose a duty on all ob- jectors — that of paying "an equivalent for such exemption." During the Civil War, conscription was considered unnecessary until March 3, 1863, when Congress passed he Federal Conscrip- tion Act. Although there were riots in a few places of the North, such as New York, when the draft act was applied, in Illinois no drafted men were required to enter actual combat. The pay- ment of bounties by local governments and by citizens' enrollment committees enabled the state to fill its quota for army service with- out resort to drafting men, except for a few who were relieved by volunteers before they were sent to the field. The discriminatory provision of the Conscription Act, allowing those who had the money to pay $300 in lieu of service, caused no little resentment among the laboring classes who could not afford such exemption. However, it can be said that conscientious objection to military serv- ice at no time during the Civil War was a problem, or a cause for public discussion in Illinois. When the United States entered the First World War, there were thirteen religious groups in this country listed as organizations whose teachings oppose participation in war. Chief among these were the Churches of Christ, Friends (Quakers), Church of the Brethren (Conservative Dunkers), and the Brethren Church (Pro- gressive Dunkers). Joining with these religious groups in conscien- tious objection to participation in the war were members of non- sectarian pacifist organizations and individual conscientious ob- jectors, both religious and non-religious. Following this country's declaration of war against Germany, certain minority political groups and some trade unions took a stand against compulsory military service. The war, they maintained, represented a clash between conflicting imperialistic ambitions. They insisted on the individual's right of determining, on the basis of his own conscience, whether the war was just, and on such deter- mination, of deciding whether he would participate in it. In 19 1 7, when legislation was being considered for drafting the youth of the country for military service, the American Union Against Militarism, with headquarters in Washington, became 202 PURSUIT OF FREEDOM active against conscription. Included in its membership were a number of prominent Illinoisans. In magazines and newspapers throughout the country, the Union advertised its position against the draft. It asserted that the volunteer system was the only demo- cratic and patriotic way of raising an army. On April 12, 191 7, the executive committee of *-he Union, which included Jane Addams of Chicago, wrote Secretary of War Newton D. Baker, asking an exemption from military service for "loyal Americans whose religious or other conscientious convictions make them unable to engage in war." The Union requested that authority to grant exemptions be given to a civil, not a military tribunal. Further, it urged that the new law recognize three types of ob- jectors: (1) those who objected to bearing arms, but would accept non-combatant service; (2) those who would not take non-com- batant service — on the ground that it aided military operations, but would give alternative service in ways that applied to times of peace as well as war, or in ways that would save life; and (3) those who would accept no compulsory military service of any kind, on the ground that it aided war. The Union averred that there were about 4,000 conscientious objectors in prisons in this country. This, it said, was a "blot on the record of the country struggling for liberty." Since under the Selective Service Act only members of certain well-recognized religious sects were exempt from the combatant ranks of the Army and Navy, it was obvious that no provision had been made for exempting the non-sectarian and individual objector. Such persons received considerable public attention as many of them obviously were as sincere as the objectors who had direct religious affiliations. They disbelieved in war as an instrument of national policy, and they held that war was a crime against humanity. A more adequate provision for the conscientious objector was devised: one that included the recognition of non-sectarians as objectors. Commanders of all cantonments were given confidential orders about six months after the draft went into effect to offer non-com- batant service to those who objected to military service though their objections were of a non-religious character. The order did not solve the vexing problem which conscientious objection to war presented to the country as a whole. It has been said of the question of conscience in wartime that "the only civil liberty which received any major official recognition was the right of conscientious objectors to religious convictions against war." The problem presented by highly intelligent persons, whose objections obviously were as sincere as those with religious convictions against FREEDOM OF CONSCIENCE 203. war, was not solved by treating them as disobedient soldiers to be court-martialed. In March, 191 8, the President issued a general order which included the recognition of non-sectarians as objectors. A Board of Inquiry, appointed by the Secretary of War, was set up in June, 191 8, for the purpose of examining each conscientious objector to determine the sincerity of his objections. He was offered the choice of the farm or industrial furlough, and, in a few cases, service in the Friends' Reconstruction Unit in France. Nearly 65,000 claims were recognized. Drafted objectors who had refused to accept service as non-combatants were held in seg- regated units and were dealt with in accordance with an order of the Secretary of War, made public June 1, 191 8. (Under a pre- vious order of the Secretary, April 22, 19 18, the men were to be court-martialed and classified as (a) those whose attitude in camp was defiant, (b) those whose sincerity was questioned, and (c) those who were active in propaganda.) Those who refused non-combatant service on any basis, and those who were acquitted by courts-martial were disposed of by the Sec- retary of War in the order of June 1, 191 8, sending them to Ft. Leavenworth, Kansas; there they were to be kept segregated, but not under arrest, pending further instructions from the Secretary of War. According to the report from the office of the Judge Advocate General, 371 professed conscientious objectors were tried and con- victed by courts-martial from September, 19 17, to the middle of November, 191 8. Their terms ranged from three months to fifty years. ' Severe sentences such as life imprisonment invariably were re- duced to twenty-five years. Deserters originally sentenced to life had their terms reduced to fifteen or twenty years, and one deserter who was sentenced to be shot had his sentence changed by the re- viewing authority to confinement for twenty-five years. Incomplete reports of the War Department show that about 4,000 of the 64,693 drafted men who claimed non-combatant classification refused service under military authority. Those who refused to report to draft boards "on the grounds that registration itself was a form of submission to military control" are not included in this number. Of the 4,000 men examined, 1,300 joined one of the non-combatant divisions of the Army, 1,200 elected to go to farms, and 99 accepted service with the Friends' Reconstruction Unit in France. Of the 504 remanded for court-martial, 280 were re- ligious sectarians, according to estimates. There were 80 non- 204 PURSUIT OF FREEDOM affiliated religious objectors, and the remainder of the 504 were "rationalists" and political objectors. Of the 504 men tried by court-martial, 450 served sentences in federal penitentiaries. One was acquitted, and the sentences of 53 were disapproved. Conscientious objection to war in the cases of seventeen men was adjudged a capital offense by the officers of the courts-martial. All seventeen death sentences were later commuted. The range of terms of imprisonment was from life for 142 men, to two years or less for ten men. The War Department intervened to reduce the sentences when they were in excess of the usual term for military disobedience. Prominent among the objectors from Illinois were Carl Haessler, then an instructor at the University of Illinois and a former Rhodes scholar, and Brent Dow Allison. Both these men, it is now gen- erally conceded, were sincere non-religious objectors. Both were sentenced to imprisonment. Haessler regarded himself as a patriotic political objector, acting largely from public and social motives. The struggle for freedom of conscience was transferred from courts-martial to military prisons, and often to the cells of solitary confinement where wrists were shackled to iron bars, and vermin were the sole companions of human beings with consciences that dis- approved of rendering military service, or even of obeying military orders. In the "disciplinary barracks" otherwise known as military prisons, principally Fort Jay on Governor's Island in New York Harbor, Fort Leavenworth, Kansas, and Alcatraz Island in San Francisco Bay, dramatic incidents occurred which resulted in the modication of the regulations of punishment used to break the wills of conscientious objectors. In less than a month after the signing of the armistice terminating the First World War, the War Department abandoned shackling of prisoners to the bars of cells as a mode of punishment. A state- ment authorized by the Secretary of War admitted that manacling had been effective in the past "in breaking the willful or stubborn opposition of prisoners of the usual military type, who would not submit to the work requirements of disciplinary barracks." The statement (released to the public on December 6, 191 8) explained that under ordinary conditions the practice had been found effective, but that with the influx of political prisoners, particularly at Fort Leavenworth : "extremity of attitude on the part of this new type of prisoner had led to extremity of discipline, as provided by military regulations. . . . Men have FREEDOM OF CONSCIENCE 205 returned for repeated experiences of the severest forms of discipline. The most extreme of these is now discarded and the order is comprehensive." The policy of confining political prisoners to solitary cells to break "their willful or stubborn opposition" was abandoned by the War Department by January 1, 1919. The abolition of manacling and of solitary confinement was recognized generally as an improve- ment in prison administration, but general prison conditions did not greatly improve. The Fort Leavenworth prison strike of February, 19 19, developed out of these conditions as a background. Most of these objectors, against the will of the government, the persuasion of statesmen, and the course of history itself, persisted in the demon- stration that conscience cannot be conscripted, and its freedom is the basic civil liberty. It was nearly two years after the armistice of November 11, 19 18, before the last objector was permitted to go free. For some aliens desiring United States citizenship, the problem of conscientious objection to military service exists in peace time as well as in war time. Applicants for citizenship must declare their willingness to bear arms. In such cases the conscientious objector is given no exemption, even on religious grounds. It was this situa- tion that confronted Dr. Abraham Warkentin of the University of Chicago, who sought American citizenship. Dr. Warkentin's petition had been recommended for denial on the ground that one who refused to bear arms in case of war, one who could not take the oath to defend the Constitution and laws of the United States, was in- eligible for citizenship. As a Mennonite minister Dr. Warkentin followed the strict anti- war tenets of his faith. In May, 1937, the minister's petition for naturalization was denied by Judge William H. Holly in the U. S. District Court, on the basis of the well-known Schwimmer and Mackintosh decisions of the Supreme Court of the United States. Though the Warkentin case was based on the historically estab- lished tenets of the Mennonite faith, which have been commonly recognized in law, Judge Holly's decision was affirmed by the Circuit Court of Appeals for the Seventh Circuit and later the Su- premene Court refused to take jurisdiction. In 1940, for the first time in its history, the United States de- parted from the traditional policy of maintaining a peace-time army of volunteers only. The Burke- Wadsworth Selective Service Act of 1940 has been subjected to criticism because of the weakness and uncertainty of the provisions regarding conscientious objectors. As explained in the Monthly Bulletin of the International Jurid- ao6 PURSUIT OF FREEDOM ical Association, "In its revised form, it (the conscientious objector provisions of the Act) applies to a person who £ by reason of re- ligious training and belief is opposed to participation in war in any form.' Originally, membership in a 'well recognized religious sect with a creed opposed to war' had been required." In its revised form the Act establishes a procedure for preliminary determination by the Department of Justice of the "character and good faith of the objection." If the objection is sustained, the Depart- ment of Justice may recommend assignment to "non-combatant serv- ice," or if the person is "found to be a conscientious objector opposed to participation in war in any form", the recommendation may be that "he shall be assigned to works of national importance" under civilian direction. As the bill was originally drawn, the procedure for passing on the objections was left to be established by Presidential rule-making, and if the objections were upheld, they would consti- tute no bar to training and service in a non-combatant capacity. In classification of registrants, Selective Service Boards consider last of all the views of conscientious objectors. The legal conditions under which freedom of conscience is exercised by those who oppose training in the land and naval forces of the United States, provide that they shall be placed in Class IV-E or Class IV-E — limited service. The former classification means that the conscientious ob- jector registrant is physically fit for general military service; the latter classification indicates that the registrant is fit only for limited service. A registrant of either class is "by reason of his religious training and belief, conscientiously opposed to combatant service in which he might be ordered to take human life, but is not con- scientiously opposed to non-combatant service in which he could contribute to the health, comfort, and preservation of others." Registrants placed in either of these classifications are assigned to work of national importance under civilian direction, if and when they are called (by reason of their classification based on physical standards) for training and service. Applicants placed in Class I-A-O, who are opposed to combatant service only, are as- signed to military camps. Those who are opposed to all military service, combatant or non-combatant, are sent to civilian camps. While the Act of 1940 worked smoothly enough for those con- scientious objectors who were willing to accept service in work camps in lieu of military service, the problem of total objectors remained unsolved. Dozens of cases came before federal judges in Illinois involving those who refused any service whatsoever, and it was observed that a standard sentence of three years in the peni- FREEDOM OF CONSCIENCE 207 tentiary was being evolved as a punishment. Many of the cases involved the determined Jehovah's Witnesses, whose uncompro- mising views of the state had already embroiled them in many another field. Stoically they accepted prison sentence rather than submit to military service. Many others were objectors whose philosophical and political views forbade either military service or the substitute work camp service. Perplexing cases also arose involving legal technicalities such as that of Robert Chino, an American of mixed Japanese-German descent. Chino, after registering, took his draft card back to his draft board and was arrested. Both judge and press made a Roman holiday of his trial. The Chicago Civil Liberties Committee regis- tered complaints against the conduct of Judge Michael Igoe and the hysterical treatment of the case in the press. The temptation to judges and newspapers of sensationalizing the trials of conscientious objectors was an outstanding blot upon the handling of this delicate problem in Illinois. And the mere fact that dozens of men went quietly, some absolutely silent, to the peni- tentiary because they refused to compromise with their consciences, indicated that our country had not yet reached a just solution of a thorny problem. The whole course of the fight for freedom of conscience in the field of militarism during the First World War gave rise within the American Union Against Militarism to the development of what in time became the American Civil Liberties Union, with which the Chicago Civil Liberties Committee is affiliated as an autonomous body. The organization was set up "to help maintain the rights of free speech and free press, and the Anglo-Saxon tradition of liberty of conscience, through liberal provisions for conscientious objectors." The American Civil Liberties Union was founded for the purpose of protecting all civil rights. APPENDIX APPENDIX THE BILL OF RIGHTS: FEDERAL AND STATE The first ten amendments to the Constitution of the United States constitute the Bill of Rights, for the protection of civil liberties. These amendments were adopted by the first Congress on March 4, 1789, and after their ratification by the states, they were made part of the Constitution on December 15, 1791. The Amendments to the Federal Constitution now number twenty-one, including the original ten of the Bill of Rights and eleven additional, some of which also pertain to civil liberties, such as suffrage, irrespective of color or sex, and abolition of slavery. All of the Amendments pertaining to civil rights are shown below in a comparison of parallel stipulations of the Federal and Illinois Constitutions. UNITED STATES ILLINOIS FREEDOM OF RELIGION AND CONSCIENCE Amendment I Congress shall make no law re- specting an establishment of religion, or prohibiting the free exercise thereof; Article II Section 3. The free exercise and enjoyment of religious profession and worship, without discrimina- tion, shall forever be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of con- science hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licen- tiousness, or justify practices incon- sistent with the peace or safety of the State. No person shall be re- quired to attend or support any ministry or place of worship against his consent, nor shall any prefer- ence be given by law to any re- ligious denomination or mode of worship. 211 212 PURSUIT OF FREEDOM FREEDOM OF SPEECH AND THE PRESS Amendment I (continued) or abridging the freedom of speech, or of the press; Article II Section 4. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and crimi- nal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. RIGHT OF ASSEMBLY AND PETITION Amendment I (continued) or the right of the people peace- ably to assemble, and to petition the government for a redress of griev- ances. Article II Section 17. The people have the right to assemble in a peaceable manner to consult for the common good, to make known their opinions to their representatives, and to apply for redress of grievances. MILITIA AND THE RIGHT TO BEAR ARMS Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Amendment III No soldier shail, in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Article II Section 15. The military shall be in strict subordination to the civil power. Section 16. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war except in the manner prescribed by law. APPENDIX 213 UNREASONABLE SEARCHES AND SEIZURES Amendment IV The right of the people to be secure in their persons, houses, pa- pers, and effects, against unreason- able searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, sup- ported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Article II Section 6. The right of the peo- ple to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no war- rant shall issue without probable cause, supported by affidavit, par- ticularly describing the place to be searched, and the persons or things to be seized. INDICTMENT BY GRAND JURY Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or pub- lic danger; Article II Section 8. No person shall be held to answer for a criminal of- fense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or im- prisonment otherwise than in the penitentiary, in cases of impeach- ment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases. WITNESS AGAINST SELF Amendment V (continued) nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, Article II Section 10. No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense. DUE PROCESS OF LAW Amendment V (continued) nor be deprived of life, liberty, or property, without due process of law; Article II Section 2. No person shall be deprived of life, liberty or property, without due process of law. 214 PURSUIT OF FREEDOM RIGHT OF TRIAL BY JURY Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an im- partial jury of the State and dis- trict wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the na- ture and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. Article II Section 9. In all criminal prose- cutions, the accused shall have the right to appear and defend in per- son and by counsel; to demand the nature and cause of the accusation, and to have a copy thereof; to meet the witnesses face to face, and to have process to compel the attend- ance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. Amendment VII In suits at common law, where the value in controversy shall ex- ceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than accord- ing to the rules of the common law. Article II Section 5. The right of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men, may be authorized by law. EXCESSIVE BAIL; PROTECTION AGAINST UNUSUAL PUNISHMENT Amendment VIII Excessive bail shall not be re- quired, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Article II Section 1 1 . All penalties shall be proportioned to the nature of the offense; and no conviction shall work corruption of blood or for- feiture of estate; nor shall any per- son be transported out of the State for any offense committed within the same. BAILABILITY EXCEPT FOR CAPITAL OFFENSES Article II Section 7. All persons shall be bailable by sufficient sureties, except APPENDIX 215 for capital offenses, where the proof is evident or the presumption great; and the privilege of the writ of habaeas corfus shall not be sus- pended, unless when in cases of re- bellion or invasion the public safety may require it. RETENTION OF ALL RIGHTS NOT ENUMERATED Amendment IX The enumeration in the Consti- tution of certain rights shall not be construed to deny or disparage others retained by the people. STATES' RIGHTS Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respec- tively, or to the people. ABOLITION OF SLAVERY; EQUALITY; INALIENABLE RIGHTS Amendment XIII (1865) Section I. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly con- victed, shall exist within the United States, or any place subject to their jurisdiction. Article II Section 1. All men are by na- ture free and independent, and have certain inherent and inalienable rights — among these are life, liberty and the pursuit of happiness. To secure these rights and the protec- tion of property, governments are instituted among men, deriving their just powers from the consent of the governed. FULL PRIVILEGES OF UNITED STATES CITIZENSHIP Amendment XIV (1868) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction 216 PURSUIT OF FREEDOM thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citi- zens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. UNIVERSAL SUFFRAGE Amendment XV (1870) Article II Section 1. The right of citizens Section 18. All elections shall of the United States to vote shall be free and equal, not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Amendment XIX (1920) The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. IMPRISONMENT FOR DEBT Article II Section 12. No person shall be imprisoned for debt, unless upon re- fusal to deliver up his estate for the benefit of his creditors, in such man- ner as shall be prescribed by law; or in cases where there is strong pre- sumption of fraud. APPENDIX 217 PROHIBITION AND ITS REPEAL Amendment XV 111 (In effect Jan. 1 920) Prohibition Section 1. After one year from the ratification of this article the manufacture, sale, 01 transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for bever- age purposes is hereby prohibited. Note: Amendments XVIII and XXI of the Constitution of the United States regarding intoxicating liquors have no counterpart in the Constitution of Illinois. A?nendment XXI (In effect Jan. 1933) Re feel Section 1. The eighteenth ar- ticle of amendment to the Consti- tution of the United States is hereby repealed. Amendment XXI (continued) (In effect Jan. 1933) Section 2. The transportation or importation into any State, Ter- ritory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby pro- hibited. COMPENSATION FOR PRIVATE PROPERTY PUT TO PUBLIC USE Amendment V . . . nor shall private property be taken for public use, without just compensation. Article II Section 13. Private property shall not be taken or damaged for public use without just compensa- tion. Such compensation, when not made by the State, shall be ascer- tained by a jury, as shall be pre- scribed by law. The fee of land 218 PURSUIT OF FREEDOM taken for railroad tracks, without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken. NO EX POST FACTO LAWS Article II Section 14. No ex fost facto law, or law impairing the obliga- tion of contracts, or making any irrevocable grant of special privi- leges or immunities, shall be passed. AVAILABILITY OF PROTECTION Article II Section 19. Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, prop- erty or reputation; he ought to ob- tain, by law, right and justice freely and without being obliged to pur- chase it, completely and without denial, promptly and without delay. PERPETUATION OF CIVIL LIBERTIES Article II Section 20. A frequent recur- rence to the fundamental principles of civil government is absolutely necessary to preserve the blessings of liberty. The following provisions of the original body of the Constitution of the United States and of other articles of the Constitution of Illinois, also affect civil liberties. NON-SECTARIANISM Article VI Article VIII (Paragraph 3) ... no religious Section 3. Neither the General test shall ever be required as a Assembly nor any county, city, qualification to any office or public town, township, school district, or trust under the United States. other public corporation, shall ever APPENDIX 219 make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institu- tion, controlled by any church or sectarian denomination whatever; nor shall any grant ... of land, money, or other personal property ever be made ... to any church, or for any sectarian purpose. CONSCIENTIOUS OBJECTION TO BEARING ARMS Article XII Section 6. No person having conscientious scruples against bear- ing arms, shall be compelled to do militia duty in time of peace; Provided, such person shall pay an equivalent for such exemption. NO BILL OF ATTAINDER OR EX POST FACTO LAW Article I Section 9 (Paragraph 3). No bill of attainder or ex fost facto law shall be passed. Article I Section 10 (Paragraph 1). No State shall . . . pass any bill of at- tainder, ex fost facto law, or law impairing the obligation of contracts. CONVICTION FOR TREASON Article III Section 3 (Paragraph 1). Trea- son against the United States, shall consist only in levying war against them, or in adhering to their ene- mies, giving them aid and comfort. 220 PURSUIT OF FREEDOM No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. Article HI Section 3 (Paragraph 2). The Congress shall have power to de- clare the punishment of treason, but no attainder of treason shall work corruption of blood, or for- feiture except during the life of the person attainted. HABEAS CORPUS Article I Section 9 (Paragraph 2). The privilege of the writ of habeas corpus shall not be suspended, un- less when in cases of rebellion or invasion the public safety may re- quire it. TRIAL BY JURY Article III Section 2 (Paragraph 3). The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. UNIVERSAL SUFFRAGE Article VII Section I. Every person having resided in this State one year, in the county ninety days, and in the election district thirty days next pre- ceding any election therein . . . above the age of twenty-one years, shall be entitled to vote at such election. APPENDIX 221 UNIFORM PRIVILEGES AND IMMUNITIES Article IV Section 2 (Paragraph i). The citizens of each State shall be en- titled to all privileges and immuni- ties of citizens in the several States. FEDERAL GUARANTEE REGARDING STATE GOVERNMENT Article IV Section 4. The United States shall guarantee to every State in this Union a republican form of govern- ment. CONSTITUTIONAL AMENDMENTS Article V The Congress, whenever two- thirds of both Houses shall deem it necessary, shall propose amend- ments to this Constitution, or, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which . . . shall be valid . . . when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, . . . Article XIV Section 1 . Whenever two-thirds of the members of each house of the General Assembly shall, by a vote . . . concur that a Conven- tion is necessary to revise, alter or amend the constitution, the ques- tion shall be submitted to the electors at the next general election Section 2. Amendments to this Constitution may be proposed in either House of the General As- sembly, and if the same shall be voted for by two-thirds of all the members elected to each of the two houses, such proposed amend- ments, . . . shall be submitted to the electors of this State for adoption or rejection, at the next election of members of the General Assembly . . . and if a majority of the elec- tors voting at said election shall vote for the proposed amendments, they shall become a part of this Consti- tution. CIVIL LIBERTIES NOTES CIVIL LIBERTIES NOTES CIVIL LIBERTIES NOTES